In Re Saji -

An Inmate of Mental Health Centre, Thrissur - Per Report Dated 30.4.2008

of The Member Secretary, Kerala State Legal Services Authority -

Sc No.698/05 -Fast Track Court-1, Thrissur

1. Heard Sri. Ramkumar Nambiar, learned Amicus Curiae and learned senior Government. Pleader Sri.T.G. Sunil.

2. Accused of having committed offences punishable under Ss.302 and 307 of the Indian Penal Code, the person, in relation to whom this order is being passed, was found to have committed that act, but was acquitted on the ground of unsoundness of mind. With such finding and judgment in terms of S.334 of the Code of Criminal Procedure, 1973, it was ordered that he be detained in safe custody in the Mental Health Centre, until ordered to be delivered to any relative or friend. Thereafter, his mother applied to the court below that he be delivered to her care and custody. That is refused on the ground that it having had issued an order for his detention in safe custody in the Mental Health Centre in terms of clause `a of sub-s.(1) of S.335, the court could not further issue an order under clause b of that sub-section that he be delivered to the care and custody of a relative or friend and that only the Government could so order, in view of S.339 of the Code.

3. Following a report of the Member Secretary, Kerala State Legal Services Authority, to this Court in O.P. No.16667 of 1996, registered in terms of the directions of the Apex Court in Sheela Barse v. Union of India ((1995) 5 SCC 654), the records in relation to the aforesaid order and case have been called for and examined to ensure that the said order is jurisdictionally and legally firm and not unjust and for the purpose of being satisfied as to the correctness, legality and propriety of that order passed by the court below refusing to order delivery of the detained person to the care and custody of his mother, on her application.

4. The short issue for consideration is whether, it having issued an order for detention in safe custody under clause `a of sub--s.(1) of S.335 of the Code, while delivering a judgment in terms of S.334, is the court precluded from later issuing an order under clause `b of that sub-section, thereby compelling a relative or friend to move only the Government, and not the court.

5. S.334 of the 1973 Code requiring the court to specifically state in the judgment of acquittal on the ground of unsoundness of mind, as to whether the person committed the act or not, is in pari materia with S.470 of the 1898 Code, thought the word `lunacy was then used in the title to the section instead of the term `unsoundness of mind, now employed. S.339 of the 1973 Code and its in pari materia provision in the 1898 Code, namely, S.475 thereof, dealing with `delivery of lunatic to care of relative or friend, provide for opportunity to the relative or friend to apply to the State Government for delivery of the detained person to the applicants care and custody. But, unlike in the 1898 Code, the 1973 Code provides in clause b of sub-s.(1) of S.335 thereof, that the court may order the person to be delivered to any relative or friend of such person, while the corresponding S.471 in the 1898 Code contained no such provision.

6. In terms of the 1898 Code, an order of Court delivering the accused to the custody of his relatives was illegal - see Superintendent and Legal Remembrancer v. Srish Chandra (ILR 56 Cal. 308: AIR 1928 Cal. 653) & Public Prosecutor v. Kandaswami (ILR 52 Mad. 485: AIR 1953 Mad. 355).

7. In the process of making its Report on the Code of Criminal Procedure, 1898, the Law Commission of India, in its 41st Report dealt with S.471 of the 1898 Code, para. 34.5 of that. Report records that it was noticed that it had been suggested that if the person found guilty is same at the time of acquittal, his friends and relatives should be allowed to keep him, after executing a bond with suitable condition for keeping the peace for five years thereafter. Though