Criminal trial of persons of unsound mind: Madras HC issues directions to spare such persons the misery of being undertrial indefinitely
Litigation News

Criminal trial of persons of unsound mind: Madras HC issues directions to spare such persons the misery of being undertrial indefinitely

Before parting with the case, it also urged trial courts to become familiar with CrPC provisions concerning persons of unsound mind, given the predicted rise in the number of persons suffering from mental illnesses.

Meera Emmanuel

A case involving a man stated to be of unsound mind recently prompted the Madras High Court to detail the procedure to be followed by criminal courts so that accused persons suffering from a mental illness are relieved of the misery of being an indefinite undertrial (Kaliyappan v. State).

The legal provisions applicable

The relevant provisions in this regard are found in Sections 328, 329 and 330 of the Code of Criminal Procedure (CrPC), as amended in 2009.

The High Court emphasised that the trial courts must first determine whether the mental state of the person is sound enough that he is capable of legally defending himself against the criminal charges against him.

If it is found that the person is of unsound mind or mentally retarded to the extent that he is unable to enter a defence and if the trial court finds that there is no prima facie case made out against him, such an accused must be discharged from the case.

If the person is of unsound mind but there is a prima facie case made out against him and the person is likely to become of sound mind later, the court must postpone the trial to allow for the treatment of the accused.

Further, if it is found that the person is found to have been of unsound mind at the time of the commission of the alleged crime, there would be no criminal case against him as per the exception outlined in Section 84 of the Indian Penal Code.

Guidelines issued

Justice PN Prakash clarified the procedure to be followed in such cases as follows:

  • The trial Court shall conduct enquiry under Section 329(2) CrPC, to find out if the accused in this case is capable of entering into his defence in praesenti;

  • If the trial Court finds that the accused in this case is mentally fit to face the trial, the trial shall be commenced and completed within 3 months from the date of such determination;

  • If the trial court holds that the accused is not mentally fit to face the trial, the trial court shall conduct an enquiry to see if there is a prima facie case against the accused.

  • Notably, the Court has to decide if there exists a prima facie case against the accused after examining the record of evidence produced by the prosecution and hearing the advocate for the accused but without questioning the accused.

  • The Court should afford an opportunity to the family of the accused to engage a lawyer. If the family is not in a position to engage a lawyer, the trial Court shall appoint a senior lawyer of the local bar with not less than 20 years of standing and with rich experience in criminal law, to take up the case of the accused in the enquiry, for whom, remuneration shall be paid by the local Legal Services Authority;

  • In the enquiry, it is open to the trial Court to examine any witness, including the doctors who had treated the accused prior to the incident; the native doctor to whom the accused was taken on the fateful day, can also be examined;

  • The trial court may also enquire the doctors who treated the accused after his arrest while he was in judicial custody;

  • The counsel for the accused may also be permitted to place materials before the Court in support of the case of the accused;

  • At the conclusion of the enquiry, if the trial court is of the opinion that the criminal act fell within the contours of Section 84 IPC, it will then be open to the trial court to discharge the accused.

  • For such discharge, the procedure set out in the proviso (a) to Section 330(3) CrPC can be followed. These provisions allow the release of such an accused of unsound mind to the concerned caregivers while also directing to ensure that the accused would not harm himself or others in the future.

  • In the event of the trial Court not discharging the accused, it shall proceed under the proviso (b) to Section 330(3) CrPC, i.e. the transfer of the accused may be ordered to a residential facility for persons of unsound mind or mental retardation, wherein the accused may be provided care and appropriate education and training.

  • In that case, the finding arrived at by the trial court against the accused shall, in no manner, be binding on the accused in the trial against him after he is certified as mentally fit to face the trial in the future. In other words, it will be open to the accused to establish once again before the trial Court that his case would fall within Section 84 IPC, because, what was done when the accused was mentally absent in the Court, cannot be put against him when he is mentally stable subsequently.

Section 329, CrPC applies to mentally retarded persons as well

Notably, the Court has clarified that this procedure is applicable both to persons who are of unsound mind and those who are mentally retarded, although the phrase "mentally retarded" is not found in Section 329, CrPC. The Judge pointed out,

"If Section 329(2) Cr.P.C. is interpreted literally, there would be no provision to discharge a mentally retarded person even if no prima facie case exists against him. These anomalous consequences impel this Court to abandon the literal interpretation of Sections 329(1-A) and (2) Cr.P.C ... the omission of mental retardation in these clauses is clearly the draftsman’s devil. In the opinion of this Court, the expression 'unsoundness of mind' occurring in clauses (1-A) and (2) of Section 329 Cr.P.C. must be construed to include cases of mental retardation also."

Apply Section 329, CrPC gainfully to aid persons mentally unfit to face trial

The case before the Court concerned one, Kaliyappan, whose mental state was not considered before the framing of charges. While inquiries by a trial judge revealed that he was unsound of mind, the case subsequently was transferred to another trial court.

A mental expert certified that Kaliyappan was not fit to face trial at the time, adding that his mental state may be re-assessed after three months. The plea before the High Court was filed by Kaliyappan's son on the apprehension that the trial court may resume trial without ascertaining the mental state of Kaliyappan.

The Court noted that it is apparent that Kaliyappan had been suffering from a mental illness since the time of his arrest in 2006. The situation had not improved as per an expert report in 2017, and even in 2020 "this case is hanging fire in the trial Court without any progress."

As such, the Court disposed of the plea with the above guidelines and while observing that,

"There is no point in keeping this case pending indefinitely. If it is found that Kaliyappan was suffering from mental illness even at the time of commission of the offence, he would have to be given the benefit of the exception under Section 84 IPC and further proceedings dropped."

Significantly, Kaliyappan's case has now prompted the High Court to remind criminal courts to gainfully apply Section 329, CrPC so that similarly placed persons are not put to trial indefinitely. The Court said,

".... a person with incurable mental illness will never be in a position to face trial. Under these circumstances, Section 329(2) Cr.P.C. can be gainfully employed to discharge these persons by permitting their advocates to adduce materials to prove their mental incapacity so as to avail the exception under Section 84 of the IPC ... the mischief that Section 329(2) Cr.P.C. was intended to address was, to prevent untreatable cases of unsoundness of mind from getting caught in the vicious circle of postponement of trial, for an indefinite period, which was the only course available to the Magistrate or Court under the unamended Section 329 Cr.P.C."

Legal system should gear up to face predicted spike in persons suffering from mental illness

Before parting with the matter, the Judge also urged trial courts to become familiar with such provisions, as outlined in Chapter XXV of the CrPC, given the predicted rise in the number of persons suffering from mental illnesses in the near future.

"At this juncture, this Court is impelled to exhort the trial Judges to get themselves thoroughly acquainted with the provisions in Chapter XXV of the Code of Criminal Procedure, because, as per the W.H.O. predictions, there is going to be a huge spike in our country in the number of people with mental illness, as a sequel to which, there is bound to be a paradigm shift in the nature of crimes in the near future, to tackle which, our legal system should gear up."
Madras High Court

Advocate S Sivakumar appeared for the petitioner, Government Advocate Kritika Kamal appeared for the State and Advocate Sharath Chandran assisted the Court as an Amicus Curiae.

Read the Judgment:

Kaliyappan v. State - Madras High Court Judgment - September 4.pdf
Bar and Bench - Indian Legal news