IMPORTANT POINT
The court established that the assessment of an accused's mental state must rely on medical evidence, and active participation in proceedings indicates capability to defend oneself.

JUDGMENT :

GITA GOPI, J.

1. The present application is moved by the original accused who is presently in judicial custody in Junagadh Jail, through his wife. The applicant is noted to be aged about 40 years and the wife is aged 33 years. The challenge under Section 379 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to in short as ‘Cr.P.C.’) is given against the order dated 23.06.2023 passed by the learned 3rd Additional Sessions Judge, Una in Sessions Case No. 27 of 2021, which was moved under Sections 328 and 329 of the Cr.P.C.

2. Sections 328 and 329 of Cr.P.C. are incorporated under Chapter XXV of Cr.P.C. Section 328 is the procedure in case of accused being lunatic. Section 329 is the Procedure in case of person of unsound mind tried before Court.

3. Learned Senior Counsel Mr. Harshit S. Tolia appearing with learned Advocate Mr. Chintan S. Popat for the applicant-accused submitted that the impugned order was passed under Section 329 of Cr.P.C. but the observations of the learned Judge is contrary to the provisions of law. It is further submitted that the applicant is unable to make a defence because of his unsound mind and he had moved the concerned Court to consider his case in accordance to the provisions of Section 329 of Cr.P.C. It is also submitted that the history of the whole family suggests that all were suffering from serious psychiatric and mental illness. The father as well as the grandfather were also mentally ill; the tendency of the family was of committing suicide and are suffering from diseases like bipolar mood disorder, unsoundness of mind, mental retardation, stubborn angriness etc. It is submitted that the father of the present applicant namely Kesubhai had committed suicide in the year 1991, at the age of 40 years and the sister of the applicant namely Santaben too had committed suicide in the year 2004, aged 29 years. It is also submitted that mental illness is running in the family and the present applicant is also suffering from bipolar mood disorder and migraine. It is further submitted that because of bipolar disorder, the applicant looses control over the senses and becomes lunatic leading him to commit such actions beyond his control and the applicant would not have any knowledge about the consequences of his act.

4. Learned Senior Counsel Mr. Harshit S. Tolia further submitted that the applicant is undergoing treatment from Dr. Vishwamohan Thakur, M.D. Consulting Psychiatrist, Ahmedabad, G-11938 (MD). It is further submitted that the applicant had stabbed the man on 26.09.2017 due to unsound mind as referred in the medical history of the treatment papers. Further, the applicant is having serious anger management issues from childhood and is emotionally sensitive. It is also submitted that the applicant is having a lunatic state of mind and as per the treatment papers, the applicant had attempted suicide by ingesting poison at his farm.

5. Referring to the observations of the learned Judge in above order dated 23.06.2023 below Exhibit 18, learned Senior Counsel Mr. Harshit S. Tolia submitted that the learned Judge was required to independently take his own decision to decide whether the accused is suffering from an unsound mind. It is also submitted that the Doctor as a Psychiatrist had no authority as per law to declare that the applicant- accused is stable and can be taken into proceeding with on going treatment with the aid of psychiatrist. It is also submitted that the declaration of the psychiatrist that the applicant is suffering from mental disorder, that itself is a sufficient ground to declare the applicant as of an unsound mind.

6. Countering the above arguments, learned Senior Counsel Mr. Hriday Buch appearing with learned Advocate Mr. Chintan S. Popat for the respondent-complainant submitted that the plea of unsoundness of mind has been wrongly taken by the applicant- accused. The applicant is a married man, having a son. The applicant accused himself is