The mandatory detention of the accused acquitted on the ground of insanity and the authority of the Provincial Government in deciding the release of such accused.

Bose—This is a revision by the Provincial Government. The non-applicant Krishna was tried by a jury in the Court of the Third Additional Sessions Judge, Nagpur, under Section 307, Penal Code, for an attempt to murder. He pleaded insanity. This plea was accepted and he was acquitted on that ground. Thereafter, instead of detaining him in safe custody under s. 471(1), Criminal P. C, and reporting the matter to the Provincial Government, the learned Judge released him, merely remarking that Should the accused again get any such fits of insanity hereafter, it would he desirable for the police and Executive Officers to take prompt steps to deal with him under Ss. 4, 13, 15, 16 and 98, Lunacy Act, 1912.

2. The reason why this was done was because the accused appeared to be sane during the trial and was said to have been sane for a period of six months before his arrest. But this is not permissible under the law however much the accused may appear to be sane at the time of his trial, because be must be sane then, otherwise he could not be tried. The Legislature must have known this when it enacted Sections 470 and 471. Under these sections whenever the acquittal is based on the ground of insanity, the Court is bound ''to order such person to he detained in safe custody in such place and manner as the Magistrate or Court thinks fit, and shall report the action taken to the Provincial Government.''

3. The privilege of deciding whether the accused shall be released or not lies with the Provincial Government and not with the Court. It was contended, on the basis of an authority decided before the year 1923, that the accused in such a case could be left in the custody of his relations. But whatever value that ruling may have had under the unamended Code it has none now because the section has been altered. The word ''detained'' has been substituted for the word ''kept'' and that, in my opinion, rules out the custody of relations. This is all the more evident from the fact that the Code empowers the Provincial Government to take such action as it thinks fit upon report being made to it. This predicts that the accused is in a custody within ready reach of the Provincial Government. I am clear that ''detention'' imports a detention by recognised authority. In cases like the present the choice narrows down to the jail or the mental hospital. Section 471 (1) is to be contrased with Section 466(1). Before the conclusion of the trial, in cases where the accused is incapable of making his defence because of insanity, the Magistrate is empowered by Section 466(1) to release him on sufficient security being given that he shall be properly taken care of and shall be prevented from doing injury to himself or any other person.''

4. Section 471 (1), on the other hand, makes it compulsory that the accused should be ''detained.'' Section 474 makes the position clear? because it contemplates a certificate from the Inspector-General of Prisons or the jail visitors in the case of persons 'detained' under s, 471 (1).. Clearly these persons could not issue such a certificate if the lunatic was left in private custody. The Provincial Government has drawn up rules under the Lunacy Act regulating the procedure to be adopted by Sessions Courts and Magistrates in cases to which Section 471(1), Criminal P. C., applies. They are to be found in the Book Circulars of the Provincial Government. The circular in question is Book Circular, Part 5, serial No. 1. Subject: Instructions for the administration of the Lunacy Act, 1912. Appendix I to the Circular gives details in para. 4 of the papers which must be sent to the Superintendent of the jail or the mental hospital to which the lunatic is consigned, and para. 5 recites the contents of the report which is to be sent to the Provincial Government under Section 471 (1).

5. The lower Court will now comply with these provisions. The Respondent will surrender himself to the Third Additional Sessions Judge, Nagpur, on 18t