IMPORTANT POINT
The main legal point established in the judgment is that the Competent Court is mandated to follow the procedure laid down in Section 105 of the 2017 Act if a claim of mental illness is made before it, and the Court cannot prejudge the said claim before making appropriate directions under the said Section.

JUDGMENT

Jyoti Singh, J. (Oral)

CRL.M.A. 1466/2024 (exemption)

1. Allowed, subject to all just exceptions.

2. Application stands disposed of.

CRL.M.C. 375/2024 & CRL.M.A. 1465/2024 (for stay)

3. This petition has been filed under Section 482 Cr.P.C. on behalf of the Petitioner, laying a challenge to the impugned order dated 05.01.2024 passed by learned Sessions Court in CRL.A. 256/2019 titled 'Kunal Kashyap v. State', on the ground that the learned Sessions Court has fixed the matter for order on sentence on 18.01.2024, without first adjudicating on the applications filed by the Petitioner under Section 4 read with Section 11 of the Probation of Offenders Act, 1958 (hereinafter referred to as the 1958 Act') and Section 105 of the Mental Healthcare Act, 2017 (hereinafter referred to as the 2017 Act'), respectively. Direction is sought to the Sessions Court to refer the case of the Petitioner to the Probation Officer under Section 4 of the 1958 Act and call for a report as well as to refer the case to Medical Board as mandated under Section 105 of the 2017 Act, before passing the order on sentence.

4. Issue notice.

5. Learned APP accepts notice on behalf of the State.

6. Genesis of the present petition is an FIR No. 355/2012 registered on 02.12.2012 under Sections 279/337 IPC at PS: Hauz Khas. Charge Sheet was filed on 11.04.2013 before the learned MM, South District, Saket Courts, New Delhi against the Petitioner for commission of offences punishable under Sections 279/337/304A IPC. On 25.11.2014, learned MM framed notice under Section 251 Cr.P.C. for commission of the aforementioned offences and Petitioner pleaded 'not guilty' and claimed trial.

7. By judgment dated 24.04.2019, Petitioner was convicted of offences punishable under Sections 279/337/304A IPC. On 03.06.2019, order on sentence was passed by the learned MM sentencing the Petitioner to two years of rigorous imprisonment for offence punishable under Section 304A IPC; six months of simple imprisonment for offence punishable under Section 337 IPC and two months of simple imprisonment for offence punishable under Section 279 IPC. Petitioner filed an appeal on 01.07.2019 before the learned Sessions Court, assailing the judgment dated 24.04.2019 and order on sentence dated 03.06.2019. Appeal filed by the Petitioner was dismissed by the learned Sessions Court on 05.12.2023, upholding the order of conviction passed by the learned MM. On the same day, the two applications filed by the Petitioner under Section 4 of 1958 Act and under Section 105 of 2017 Act were taken on record and the case was adjourned to 15.12.2023. On 15.12.2023, part arguments were heard on both the applications and the matter was directed to be listed on 05.01.2024 for further arguments on the same/consideration on the point of sentence. On 05.01.2024, the case was adjourned and posted for order on sentence on 18.01.2024, after recording that further arguments were heard on behalf of the convict on the pending applications and no arguments were adduced on behalf of the State, as none represented the State, post lunch.

8. Impugned order dated 05.01.2024 is assailed before this Court on two-fold grounds by the Petitioner. Arguing on behalf of the Petitioner, Mr. Madhav Khurana, learned counsel, submits that Petitioner has been suffering from schizophrenia, depression, psychosis, paranoia and hallucinations, for which he has been under treatment since 2015 till date. The illnesses have rendered him incapable of even carrying out his daily activities without the assistance of his sister, who is his guardian and looking after him since 2015. The aforesaid illnesses fall under the definition of 'mental illness', defined under Section 2(1)(s) of the 2017 Act and therefore, as per the mandate of Section 105 of the said Act, case of the Petitioner ought to have been referred by the Court for further scrutiny to the concerned Board for its opinion, which procedure was not followed. The illnesses, from which the Petitioner s