Section 329 of the Cr.P.C applies only after charges are framed, making premature applications inadmissible.

JUDGMENT

1. The petitioner through the medium of the present petition has challenged order dated 22.10.2024 passed by the learned Principal Sessions Judge, Jammu whereby the application of the petitioner under Section 329 of the Cr.P.C has been dismissed.

2. I have heard learned counsel for the parties and perused record of the case. 3. It appears that a charge sheet arising out of FIR No.27/2023 for offences under Section 302 IPC is pending against the petitioner before the Court of learned Principal Sessions Judge, Jammu. It seems that an application under Section 328 of the Cr.P.C was made by the petitioner before the Court of learned JMIC (City Judge), Jammu seeking an enquiry into the status of his mental health, as according to the petitioner, he was incapable of making his defence on account of unsoundness of his mind. The said application came to be dismissed by the learned Magistrate vide order dated 12.08.2024 by observing that the challan at the relevant time had been committed to the Court of learned Principal Sessions Judge, Jammu, as such, the learned Magistrate did not have jurisdiction to consider the said application.

4. The aforesaid order came to be challenged by the petitioner before this Court by way of a petition under Section 482 Cr.P.C which was registered as CRM(M) No. 686/2024. The said petition was disposed of by this Court in terms of order dated 30.08.2024 and it was observed that power to hold an enquiry in terms of Section 329 of the Cr.P.C is vested with the Magistrate or the Court of Sessions and in the present case without taking recourse of said remedy the petitioner could not have approached the High Court.

5. It seems that pursuant to the aforesaid order of this Court, the petitioner moved an application under Section 329 of the Cr.P.C before the learned Principal Sessions Judge, Jammu. By virtue of the impugned order the said application has been rejected by the learned Sessions Judge on two grounds, one that trial in the case is yet to commence and as such, power under Section 329 of the Cr.P.C cannot be exercised by the Court at this stage and secondly that on the basis of the material on record and the background circumstances, the petitioner appears to be trying to escape the proceedings under law with a view to delay the trial.

6. In the instant petition, it has been submitted that the petitioner is under psychiatric treatment since the year 2012 and he has been diagnosed with “Obsesssion with delusional intent” by the doctor. It has been further submitted that upon re-examination of the petitioner at SKIMS on August 31, 2023 he was diagnosed with psychotic and depressive features and was advised to undergo further psycho diagnostic assessment and follow up. It has also been submitted that on September 4, 2023 the petitioner underwent surgery for lleostomy at SKIMS and was discharged on September 14, 2023. It has been submitted that on October 3, 2023 he was examined at Government Psychiatric Diseases Hospital Srinagar where after he was arrested on October 14, 2023. The petitioner has placed on record the medical prescriptions issued by the various doctors/hospitals to press home the contention that he is not in such a mental condition as would render him capable of making his defence. It has been claimed that at least for ascertaining whether or not the petitioner is in such a mental condition as would render him incapable of making his defence, a trial is required to be undertaken in terms of Section 329 of the Cr.P.C.

7. In order to determine the merits of the contentions raised by the petitioner in the present petition, it would be apt to notice the provisions contained in Section 329 of the Cr.P.C, which is relevant to the context. The same reads as under:-

“329. Procedure in case of person of unsound mind tried before Court.

(1)If at the trial of any person before a Magistrate or Court of Session, it appears to the Magistrate or Court that such person is of unsound mind and consequentl