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2022 Supreme(Ker) 64
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.Vinod Chandran, C. Jayachandran, JJ.
Vijayalakshmi K.S. W/o. Raveendran – Petitioner
Versus
State of Kerala Represented By the Public Prosecutor and Ors. – Respondents
Crl.M.Appl.No.1 of 2021 In Crl.A No. 1344 of 2016
Decided On : 18-01-2022
Advocate Appeared:
For the Petitioner: V.Vinar, Adv.
Point of Law: Introduction of clause (b) to S. 335(1) of the new Code only provides an alternative course for the trial court to deal with an accused person, who was acquitted on the ground of unsoundness of mind, which option, going by the statutory scheme of the Code, cannot be exercised, except when the judgment of acquittal is delivered, for, the power to deal with an accused person subsequently has been clearly conferred on the State Government.
Headnote:
Indian Penal Code,1860 - Sections 84, 302, 307, 324 and 326 – Criminal Procedure Code,1973 - Section 335(1),338 and 339 - Lunacy Act, 1912 - Unsound mind – Offence of Murder –Appeal against conviction - Husband of petitioner is sole accused in S.C. of the Additional Sessions Court for offences alleged under Sections 302, 307, 324 and 326 of the Indian Penal Code - Negating defense plea under Section 84 of I.P.C., learned Sessions Judge convicted the accused for the offences above referred and inter alia sentenced him to undergo imprisonment for life - Whether as a matter of fact Courts have now any power to make such a report.
Finding of the Court:
In the teeth of the interpretation, court are unable to consider prayer in application - Be that as it may, court invoke extraordinary jurisdiction conferred on us under Article 226 of Constitution of India, especially in the context of the report at Annexure – A2, reiterated in the report obtained from the Mental Health Care Centre, Kozhikode, which court mark as Court - As per Annexure-A2, mental condition of accused person is stable, that he is maintaining improvement with drugs, that he does not require institutional care and he is fit for discharge from hospital, for being managed as outpatient - Opinion has been reiterated in report of the same authority, which would further state that the accused person requires regular follow up in outpatient department once in a month, which interval can be extended to two months, after he becomes more stable - In the circumstances, court direct Government to consider Annexure-A2 and to pass orders thereon in accordance with law, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this Order - Needless to say that State Government will attach due weightage to reports.
Result: Criminal Miscellaneous Application is disposed of.
ORDER :
Jayachandran, J.
Whether a trial court or an appellate court, as the case may be, having exercised the option under clause (a) of Section 335(1) of the Code of Criminal Procedure (referred to as 'Cr.P.C.' hereinafter) at the time of delivery of judgment of acquittal on the ground of unsoundness of mind, can re-exercise the option under clause (b) at a later point of time on the application of a relative/friend, is the question involved in the above Criminal Miscellaneous Application. The petitioner, the wife of the accused, who seeks an answer in the affirmative, places heavy reliance upon the judgment of a learned Single Judge of this Court in In re : Saji v. [OP No.16667/1996], reported in 2009 (2) KLT 892.
2. The attendant facts:-
The husband of the petitioner is the sole accused in S.C. No.190/2015 of the Additional Sessions Court-I, Kalpetta for offences alleged under Sections 302, 307, 324 and 326 of the Indian Penal Code (referred to as 'I.P.C.', hereinafter). Negating the defence plea under Section 84 of the I.P.C., learned Sessions Judge convicted the accused for the offences above referred and inter alia sentenced him to undergo imprisonment for life. In appeal (Crl.Appeal No.1344/2016), a Division Bench of this Court reversed the judgment impugned, set aside the conviction and sentence, and acquitted the accused, finding that he was incapable of knowing the nature of the act alleged to have been committed by him, or that it was wrong, or contrary to law, by reason of unsoundness of mind. The rest of the directions in the judgment of the Division Bench, relevant in the context are, as extracted herein below:
“35. ………… We direct that the appellant shall be kept in safe custody for the present as provided under Section 335 of the Cr.P.C. Subsection (2) of Section 335 provides that the order for detention shall be in accordance with the rules framed by the State Government under the Lunacy Act, 1912. As the Lunacy Act, 1912 is not in force at present and it has been repealed and the relevant Act in force is the Mental Healthcare Act, 2017, we find that the latter Act is applicable in this case. We, therefore, direct that the appellant is to be detained in one of the mental health establishments in the State in accordance with the rules, if any, framed by the State Government. It is open to the State Government to direct the appellant to be delivered to any of his relatives or friends in accordance with law. A copy of this judgment shall also be sent to the Director General of Prisons and the Secretary, Home Department, Government of Kerala in terms of Section 335(4) for taking further action in terms of Sections 338 and 339 of the Cr.P.C. The said authorities are directed to submit a report of action taken by them from time to time before the trial court within three months from the date of receipt of a copy of this judgment. The court below is directed to take further follow up action and issue necessary orders in the best interest of the appellant in accordance with Chapter XXV of the Cr.P.C.”
(underlined for emphasis)
3. The Division Bench delivered the judgment on 10.01.2020. On 3.12.2021, the petitioner, the wife of the accused, filed the instant Criminal Miscellaneous Application under Section 335(1)(b), Cr.P.C. seeking to release the accused to the legal custody of the petitioner. The petitioner, essentially, relies on Annexure-A2 report on the mental condition of the accused, issued by the second respondent (Superintendent, Government Mental Health Centre, Kozhikkode). The petitioner contends that as per Annexure-A2 report, the accused is fit to be released from hospital, as also, for out Crl. patient management. The petitioner is ready and willing to take care of her husband at her house, to which course, their children, a son aged 26 years and a daughter aged 19 years, have no objection.
4. It is in the back drop of the above facts and circumstances that the question posed at the beginning of the Order surfac
