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Madhya Pradesh High Court · body

2019 DIGILAW 141 (MP)

Nanhu @ Ghanshyam Patel v. State of M. P.

2019-02-13

RAJENDRA KUMAR SRIVASTAVA

body2019
ORDER : Petitioner has filed this revision petition under Section 397/401 of Cr.P.C. being aggrieved by the order dated 25.09.2017 passed by learned 3rd Additional Sessions Judge Jabalpur in Session trial No. 391/2004 whereby the learned Judge has rejected the application under Section 330 of Cr.P.C. filed by petitioner. 2. According to the case, petitioner has preferred an application under Section 330 of Cr.P.C. for discharging the petitioner on the ground of mental retardation or unsound mind, but the learned trial Judge has rejected the same on the ground that the petitioner is on bail and the provision of Section 330 of Cr.P.C. can only be invoked while petitioner is in custody. 3. Learned counsel for the petitioner submits that the petitioner stood before the trial Court for trial of offence under Section 302 of IPC in pursuant to Crime No. 101/2014 registered at Police Station Patan, District Jabalpur. He submits that the accused is of unsound mind and is a lunatic person and this Court has released the petitioner-accused on bail on the ground of insanity. Further while granting the bail, this Court has observed that the trial Court is free to proceed in the case in accordance with the provision of Sections 328 to 339 of Cr.P.C. He further submits that this Court has considered the medical report of the petitioner as he is under treatment thereafter he was also sent to medical hospital Jabalpur, wherein it was opined that the petitioner was not fit for trial proceeding as he is unable to understand the proceedings of the Court. Further petitioner has also been sent to the Mental Hospital, Gwalior for further treatment vide order dated 20.05.2014 passed by trial Court. The said order was challenged by the petitioner in M.Cr.C. No. 9315/14, wherein this Court dealt with the provision of Section 330 of Cr.P.C. and set aside the order dated 20.05.2014 with some direction. Thereafter in the light of above said order, petitioner has moved before the learned trial Court to discharge him but the same prayer was rejected by the trial Court on the ground that the petitioner was not in custody. Learned counsel for the petitioner submits that the trial Court erred in passing the impugned order. While passing the said order the learned trial Judge did not consider the medical evidence of accused and has given the wrong finding. Learned counsel for the petitioner submits that the trial Court erred in passing the impugned order. While passing the said order the learned trial Judge did not consider the medical evidence of accused and has given the wrong finding. He also submits that the learned trial Judge has also failed to comply the order passed by this Court, wherein this Court had directed the learned trial Judge to pass an appropriate order under the purview of Sections 328 to 339 of Cr.P.C. Further, according to Section 330(2) of Cr.P.C. it is prescribed that when there is no order of detention of the accused in a lunatic asylum it shall be passed otherwise in accordance with rules framed by Government under the Mental Health Act 1987. He further submits that the learned trial Judge did not apply the judicial mind and failed to invoke the provision of Section 330 of Cr.P.C. whereas medical documents regarding mental status and health condition of the petitioner clearly shows incompetency of the petitioner-accused to understand the law. He submits that in view of the above the impugned order passed by the learned trial Judge is suffering from grave irregularity and deserves to be quashed. He prays for discharging of the petitioner. 4. Learned counsel for the State opposes the submission made by learned counsel for the petitioner and submits that the learned trial Court has rightly passed the impugned order by holding that during the bail period accused cannot be benefited by the provision under Section 330 of Cr.P.C. He prays for dismissing the revision. 5. Heard both the learned counsel for the parties and perused the case. 6. From perusal of case there are two question which arises before this Court to adjudicate, first whether the accused is suffering from insanity and secondly what would be effect of Section 330 of Cr.P.C. when the accused is on bail under Section 439 of Cr.P.C. from Bare perusal of order dated 25.09.2017 passed by learned trial Court, it is revealed that, initially on 12.10.2004 the learned trial Court has released the petitioner on bail while considering Section 328 and 329 of Cr.P.C. The proceedings were adjourned for further three months as the learned trial Court found that the accused was insane. Thereafter, bail was extended for further period. Thereafter, bail was extended for further period. On 20.05.2014 in compliance of order dated 11.10.2011 passed in M.Cr.c. No. 12246/2011, the learned trial Court took the application into consideration filed by the petitioner and dismissed the same. The learned trial Court has considered the medical report of accused and observed that the accused is fit for trial and capable to understand all the things. Said order was challenged by the petitioner in M.Cr.C. No. 9315/2014 and the same was quashed by this Court, vide order dated 04.07.2017 and this Court has directed to the trial Court to decide the application in the light of provision 330 of Cr.P.C. By the impugned order the learned trial Court has decided the same and it is under challenge in this petition. 7. Vide order dated 12.01.2018, this Court has directed the State to verify the mental status and ailment of petitioner and submit a report. Report has been received and from perusal of the same it appears that the accused is still suffering from insanity and he is in psychotic state. He is unfit for trial. Now therefore, it is not in dispute that the accused is still of unsound mind. 8. Further, the learned trial Court has denied to give the benefit of Section 330 of Cr.P.C. on the ground of maintainability of the application while the accused is on bail. It is necessary to first read the provision of 330 of Cr.P.C. to decide this issue. Provision is quoted as under:- 330. Release of lunatic pending investigation or trial. - (1) Whenever a person is found, under section 328 or section 329, to be of unsound mind and incapable of making his defense, the Magistrate or Court, as the case may be, whether the case is one in which bail may be taken or not, may release him on sufficient security being given that he shall be properly taken care of and shall be prevented from doing injury to himself or to any other person, and for his appearance when required before the Magistrate or Court or such officer as the Magistrate or Court appoints in this behalf. (2) If the case is one in which, in the opinion of the Magistrate or Court, bail should not be taken, or if sufficient security is not given, the Magistrate for Court, as the case may be, shall order the accused to be detained in safe custody in such place and manner as he or it may think fit, and shall report the action taken to the State Government: Provided that no order for the detention of the accused in a lunatic asylum shall be made otherwise than in accordance with such rules as the State Government may have made under the Indian Lunacy Act, 1912 (4 of 1912). (3) Whenever a person is found under section 328 or section 329 to be incapable of entering defence by reason of unsoundness of mind or mental retardation, the Magistrate or Court, as may be shall, keeping in view the nature of the act committed and the extent of unsoundness of mind or mental retardation, further determine if the release of the accused can be ordered. Provided that- (a) if on the basis of medical opinion or opinion of a specialist, the Magistrate or Court, as the case may be, decide to order discharge of the accused, as provided under Section 328 or section 329, such release may be ordered, if sufficient security is given that the accused shall be prevented from doing injury to himself or to any other persons; (b) if the Magistrate or Court, as the case may be, is of opinion that discharge of the accused cannot be ordered, the transfer of the accused to a residential facility for persons of unsound mind or mental retardation may be ordered wherein the accused may be provided care and appropriate education and training." 9. After careful reading of the Section 330 of Cr.P.C. it is found that the Court can exercise its jurisdiction only on two para meters (i) the accused is a person of unsound mind and (ii) he is not fit to understand the Court proceeding, he is incapable of making his defence. As far as Section 439 of Cr.P.C. is concerned its empowers the Court to grant bail to a person, who is suffering from sickness. Mental sickness is also form of sickness. As far as Section 439 of Cr.P.C. is concerned its empowers the Court to grant bail to a person, who is suffering from sickness. Mental sickness is also form of sickness. Therefore, facts relating to provision of Section 330 of Cr.P.C. is not relevant with the Section 439 of Cr.P.C. and finding of the learned court regarding maintainability of application under section 330 Cr.P.C while the accused on bail is not correct. From perusal of earlier order dated 04.07.2017, it appears that this Court has directed to the learned trial court to decide the application in the light of provision of section 330 Cr.P.C. wherein it is provided that the Court can send the accused in detention to lunatic asylum in accordance with rules framed by the Government under Mental Health Act, 1987 and not otherwise. The learned trial Court did not take this issue into consideration while passing the impugned order. It also appears from the impugned order that the trial court has passed an order after considering the report of Psychiatrist namely Dr. P.K. Joel but it appears from order that the Dr. P.K. Joel has given two different reports on different occasion as the trial Judge wrote that the on 25.05.2014 after considering the report of Dr. P.K. Joel, Court reached to this conclusion that the accused is capable to understand the court proceeding. It is an admitted fact that the trial court did not examine Dr. P.K.Joel in this regard, which looks necessary as the circumstances of the case. 10. Therefore, in view of the above, this revision is allowed and this court of the opinion that the case shall be remanded back to trial court with further direction:- Impugned order dated 25.09.2017 passed by trial court is hereby set aside and trial court is directed to decide the application in the light of provision of section 330 of Cr.P.C. on merits of the case, keeping in the mind this fact that this Court has already observed that there is no relevancy between these two facts that while deciding the application under Section 330 of the Cr.P.C. accused should be in custody.