Mental retardation falls within the definition of unsoundness of mind, and a proper inquiry is required to determine the mental capacity of the accused.

MUKTA GUPTA, J.

1. The petitioner is undergoing trial in Case FIR No. 606/2014 under Section 8 of the Protection of Children from Sexual Offences Act, 2002 (in short POCSO Act) registered at PS Hauz Khas, New Delhi. During the course of trial, the petitioner raised the plea that he is suffering from mental retardation thus he is unable to understand and comprehend his actions. In this regard, the petitioner was issued a disability certificate by Safdarjung Hospital certifying that he was a patient of mental retardation to the extent of 60%. The petitioner filed an application under Section 227 Cr.P.C. read with Sections 329/330 Cr.P.C seeking discharge however, the same was dismissed by the learned Sessions Judge vide impugned order dated 23rd November, 2015. Hence the present petition. The relevant portion of the impugned order is as under:

“As per Section 227 of the Code of Criminal Procedure, 1973, (Cr.P.C.) if, upon consideration of the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

As per Section 329 of Cr.P.C. if at the trial of any person before a Court of Sessions, it appears to the Court that the such person is of unsound mind and consequently incapable of making his defence, the Court shall, in the first instance, try the facts of such unsoundness and incapacity and if the Court, after considering such medical and other evidence as may be produced before it, is satisfied of the fact, it shall record a finding to that effect and shall postpone further proceedings in the case.

In the present case the accused has been appearing before this court since his summoning. The court has minutely observed his actions and manners. From the acts and manners of the accused it do not appear that he is a person of unsound mind. In support of the application the accused has produced some documents prepared in the year 1998 and prior to that, while he was under treatment. The said documents do not indicate that the accused is a person of unsound mind. The said documents only indicate that the accused was under treatment for a long time, and at the time of the issuance of the certificate dated 28.4.1998 by the Medical Superintendent, Safdarjang Hospital, New Delhi, he was under moderate mental retardation.

The law is well settled that there is difference between legal unsoundness of mind and medical unsoundness of mind. In the case before the court it is for the accused to establish that at the time of the commission of the offence he was in fact suffering from unsoundness of mind. At this stage of the case, however, neither the court can presume such unsoundness nor it has reasons to believe that the accused is a person of unsound mind.

Furthermore, by way of the application the accused is seeking his discharge under section 227 of Cr.P.C. The evidence collected by the police, however, do not indicate that no offence has been committed by the accused in this case. I am satisfied that there is no ground for discharging the accused as sought by him by way of the present application.”

2. Notice in the present petition was issued to the State and as per the status report filed though treatment papers have been verified from the records however, it is stated that they are not valid for medico legal purpose and the patient with family is required for detailed assessment. Medical records from the Safdarjung Hospital and AIIMS could not be verified being old. Further regarding the status of the mental disability and assessment on mental retardation as per the report of AIIMS it was not possible to give any opinion and the patient was required to be examined in Psychiatry OPD for detailed psychological assessment after his initial evaluation.

3. Section 84 IPC provides that nothing is an off