Point of Law : Section 105 of Mental Healthcare Act, 2017 deals with procedure to be followed in a judicial process where any proof of mental illness of a person is produced.

ORDER :

The order dated 4.1.2023 passed by the Special Judge, Fast Track Special Court, Kunnamkulam in C.M.P.No.93/2022 in S.C.No.789/2018, an application filed under Section 328 of Cr.P.C., is under challenge in this Crl.M.C. The petitioner is the accused in the Sessions Case. He faces charges under Section 377 of IPC and Sections 9(m) & 9(n) r/w Section 10 of the Protection of Children from Sexual Offences Act.

2. The petitioner filed the application under Section 328 Cr.P.C. through his wife stating that he is suffering from Bi-polar Disorder with depression and suicidal tendency and, therefore, he is incapable of making his defence. The petitioner relied on Annexures 3 to 6 medical documents to substantiate his contentions. The petitioner also pleaded that as he was undergoing treatment for demyelination from 2014 onwards, he is not fit to stand for trial.

3. The Special Judge, after considering the material placed before it, found that the petitioner failed to establish that he is of unsound mind and consequently incapable of making his defence. The Court held that he has been prosecuting the case properly and there is no requirement for conducting an inquiry under Section 328 of Cr.P.C.

4. Heard Shri. Joseph George, the learned counsel appearing for the petitioner, the learned Public Prosecutor and Shri.V.Ramkumar Nambiar, the learned Amicus Curiae.

5. The learned counsel for the petitioner submitted that the Court below had not perused the material to prove the mental illness and the incapacity of the petitioner to make his defence placed before it. It is further submitted that the learned Special Judge ought to have referred the petitioner for examination by a Civil Surgeon as contemplated in Section 328 of Cr.P.C. The learned counsel for the petitioner contended that the Court was not an expert in determining the mental status of the accused and analysing the medical reports pertaining to the mental illness produced from the side of the defence. The learned counsel also relied on Section 105 of the Mental Healthcare Act, 2017, to contend that the matter should have been referred to the Board concerned.

6. The learned Amicus Curiae, relying on Section 105 of the Mental Healthcare Act, 2017, submitted that it was mandatory on the part of the Court to refer the matter for further scrutiny to the Board concerned and based on the opinion of the Board or the Committee of the experts, as the case may be, the Court should decide whether the trial of the person could be proceeded or not and on the manner of protection, care and treatment that should be afforded to such persons. The learned Amicus Curiae submitted that apparently such an exercise has not been undertaken by the Court below, and therefore, interference of this Court is warranted.

7. The learned counsel for the petitioner relied on Annexures 3 to 6 medical records in support of the contention of the petitioner that he is incapacitated to make his defence due to mental illness. The trial Court had considered Annexures 3 to 6 medical records while disposing of the petition filed under Section 328 Cr.P.C. In the discharge summary dated 20.1.2015 (Annexure 3) issued from Jubilee Mission Medical College & Research Institute, Thrissur, the summary of the treatment given to the petitioner is stated as follows:-

“47 year old male, a suspected c/o demyelination/ gliomatosis cerebri, presented with h/o weakness of right lower limb, difficulty in walking, visual disturbances of 3 days duration. Was previously admitted with similar complaints of right side and slurring of speech in October 2014–MRI then showed lesions in right thalamus internal capsule and splenium of corpus callosum ? Demyelination / ? gliomatosis cerebri. Repeat MRI taken during this admission showed– clearance of right sided lesions, fresh lesions in left thalamus pons and gangliocapsular area. Lumbar Puncture was done-send for routine investigations-normal. CSF Oligoclonal bands, Sr.Anti NMO antibody sent-report