The court's decision underscores the importance of considering the gravity of the offence and the accused's fitness to stand trial when evaluating bail applications involving mental illness.

JUDGMENT

Anu Malhotra, J. - The applicant, vide the present application under Section 439 of the Cr.P.C., 1973 seeks the grant of bail in relation to FIR No.322/2018, PS Sagarpur under Section 376 of the Indian Penal Code, 1860 and Section 6 r/w Section 10 of the POCSO Act, 2012 submitting inter alia to the effect that he suffers from mental illness from the time of his arrest;

that it is on the record in the charge sheet that he did not try to run away from the place of occurrence because either as he might have not committed the offence or he might not be aware of the act which he committed due to his mental incapacity;

that even before two years of the date of offence the applicant had undergone treatment at IHBAS but his condition did not improved as he could not visit the hospital regularly due to poor financial condition of his family;

that as per the prescription slip issued from the department of Psychiatry Ref No. 2016-2-121666 dated 14th March 2016, it is manifestly clear that the accused/applicant has been administered Risperidone Tablets/ medicine which on a research from the website i.e. www.drugs.com and www.risperidone.com, it was found that Risperidone is an antipsychotic medicine which works by changing the effects of chemicals in the brain and is used to treat schizophrenia in adults and is also used to treat symptoms of bipolar disorder (manic depression) in adults;

that the applicant was also prescribed the medicine sodium valporate which is used to treat the epilepsy and bipolar disorder; that the fact of the mental illness of the applicant is mentioned in a letter given by the head of the village to which the applicant belongs stating that the applicant belongs to a poor family and is of unsound mind; that the applicant on 20.11.2018 had requested the learned Trial Court to send him to IHBAS for conducting a clinical psychological examination and treatment under the Mental Health Care Act 2017, which mandates for providing of mental healthcare and services for persons with mental illness and to protect, promote and fulfill the rights of such persons including the prisoners under Section 103 of the MHC Act 2017;

that the applicant/accused was admitted in IHBAS for treatment and evaluation for few months and the medical board of IHBAS submitted a medical report vide reference No. CRF No. 2016-02-12666, dated 17.05.2019, declaring that the "Patient was a case of Bi-Polar affective disorder, currently hypomania and that he needed regular monitoring for improvement and follow up with the psychiatrist" and that after medical evaluation the applicant/accused was transferred to jail on 04.06.2019;

that the application filed by the applicant before the learned Trial Court seeking grant of bail was rejected vide order dated 18.11.2019 of the learned ASJ. It has further been submitted on behalf of the applicant that vide order dated 18.11.2019, it was observed as under:-

"The chargesheet has been filed u/s 376 IPC and Sections 6/10 POCSO Act. The accused is alleged to have inserted his finger in the private part of the victim who was of tender age as she has not been completed 4 years. The offence is no doubt grave.

Bail is sought on the ground that his parents shall get him properly treated. It is however noted in the application and submitted that his treatment could not be continued on account of financial condition of the family. Admittedly his treatment was not continued from 2016 onwards. Even if it be accepted, for the sake of arguments, that the accused is mentally ill and requires treatment, it is evident that his family is unable to provide the same. On the other hand, through the State Instrumentality, appropriate treatment can be made available to him. The fact as noted in the application that he left his house without intimating his family also shows that his family members are unable to take care of him. Further as reported by Medical Board despite "patient is a case of Bipolar Affective Disorder, curre