The main legal point established in the judgment is the procedural framework for dealing with accused persons suffering from psychiatric illness, including the conditions for their release or detention as outlined in the Cr.P.C.

1. This criminal reference has been made by the Principal Sessions Judge, Reasi in case FIR No.114/1996 under Section 302 RPC registered at Police Station, Reasi. Ram.

2. From perusal of the reference, it reveals that the case of the prosecution was that on intervening night of 14/15 of August, when the complainant was sleeping in his home along with his family members, meanwhile lights were off all of a sudden at 11.30 p.m, a sound with regard to the killing was raised and when the complainant and his family members got up, switched on the electric bulb in the room, they were terror stricken to see that the complainant’s son, namely, Chander Posh was bleeding from his head, who was unconscious, whose pulse was going feeble, who was shifted to Pouni hospital, but after proceeding 200 years towards the hospital, he succumbs to his injury. On this report, a case under FIR No.114/2009 under Section 302 RPC was registered. The investigation started and after completing the investigation, it was found that accused Lalit Narian was inimical to the deceased, as the deceased being elder brother of the accused, used to advise him and reprimand him for his follies. The accused on the basis of this enmity, committed deliberate murder of the deceased, the accused was taken into custody and accordingly challan was produced before the learned Sub-Judge, JMIC, Reasi on 05.01.1996, who committed the same to the court of learned Principal Sessions Judge, Reasi on 16.07.1998. The learned Sessions Judge, Reasi vide order dated 24.11.1998 after getting the accused medically examined observed that the accused is suffering from Chronic Psychiatric illness. Accordingly, the proceedings under Section 466 Cr.P.C were resorted to and the trial was ordered to be suspended. The accused was detained in safe custody in the Central Jail, Jammu with the direction that he should be periodically examined from Psychiatric Disease Hospital, Jammu, who has not recovered from psychiatric illness till the reference was made before this Court.

3. The concluding paras of the order of reference made by the learned Sessions Judge, Reasi reads as under:

“…29.The question therefore, arises as to what course is left with the court to administer justice and what is the scope under law for this court to make reference.

30. Under Section 432 this court can only make reference when the constitutional validity of any statute of law is involved which though may not directly seem to be the case herein under S 438 the Sessions Court is empowered to make reference of any order or proceeding which may have been examined under S 435 Cr.P.C or otherwise the record of any proceeding and these words or otherwise the record of any proceeding provide a scope for this court to make reference when it seems that continuance of proceedings shall be abuse of process of law.

31. In the instant case when the accused is not able to defend himself and neither any of his relatives is ready to take him back nor anybody undertakes to provide for his maintenance or take his care and the earlier counsels engaged have shown their helplessness in the matter and if the court holds that there is no provision to make reference, the same can be said to be giving rise to an unpleasant situation and the contemplation of vacuum for doing justice under law is not envisaged under the constitution when this court will be exercising the powers under Cr.P.C code subordinate to the constitution and can exercise the jurisdiction for protecting constitutional rights of the accused.

32. It may not be out of the place to mention here that India is signatory of United Nations Convention of Mentally Disabled persons and the court is also holding the post as ex officio chairman District Legal Services Authority under the State legal services Authority Act and cannot be presumed to shut its eyes when such a contingency arises and while dealing with this case also deems it proper that a direction should be issued to all