J U D G M E N T

INDEX TO THE JUDGMENT

FACTUAL BACKGROUND...................................................................2

SUBMISSIONS BEFORE THE COURT..............................................4

ANALYSIS & FINDINGS ......................................................................7

Unsoundness of Mind vs. Mental Retardation.........................................8

Relevance under the Indian Penal Code......................................................9

Relevance under the Code of Criminal Procedure...................................10

Procedural Safeguards under Chapter XXV of Cr.P.C. ........................10

Section 328 of Cr.P.C. – Inquiry Into Mental Condition at Pre-Trial Stage................................................................................................................14

Section 329 of Cr.P.C. – Procedure When Unsoundness Is Discovered During the Course of Trial ..........................................................................16

Section 330 of Cr.P.C. – Release of Person of Unsound Mind..............17

Section 331 of Cr.P.C. – Resumption of Inquiry or Trial .......................20

Procedure under Chapter XXV – Mandatory in Nature.........................21

Examining the Impugned Order................................................................21

The Decision......................................................................................28

DR. SWARANA KANTA SHARMA, J.

1. The State, by way of this petition, seeks to assail the order dated 29.04.2017 [hereafter ‘impugned order’], passed by the learned Additional Sessions Judge-01, North District, Rohini Court, Delhi [hereafter ‘Sessions Court’], in SC No. 58842/16, arising out of FIR No. 618/2016, registered at Police Station Bhalswa Dairy, Delhi, for offence punishable under Section 376 of the Indian Penal Code [hereafter ‘IPC’] read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 [hereafter ‘POCSO Act’].

FACTUAL BACKGROUND

2. The present matter arises out of allegations of an attempted sexual assault upon the victim, a minor girl, by a boy named Neeraj i.e. the respondent herein. The victim in the present case alleged that Neeraj had attempted to commit an inappropriate act with her, in a vacant plot. The victim was medically examined on 18.09.2015 at BJRM Hospital, Delhi. The doctor concerned had recorded the history in the MLC as “alleged history of attempt to sexual assault”, as stated by the victim. It was also noted that the accused was not known to the victim. One witness, Richa, had claimed to have seen the incident from her residence. According to her, the accused Neeraj had undressed himself as well as the victim and he was about to sexually assault the victim, but he was apprehended before he could commit any further act. After completion of the investigation, chargesheet was filed against the accused for offence punishable under Section 376 of IPC read with Section 6 of the POCSO Act.

3. The learned Sessions Court, by way of the impugned order dated 29.04.2017, was pleased to discharge the accused. The discharge order was premised on the fact that the mental age of the accused had been assessed to be that of a four-year-old child, as per the opinion of the Medical Board constituted at the Institute of Human Behaviour and Allied Sciences (IHBAS), which had diagnosed the accused as a case of severe mental retardation though without any behavioural problems. Accordingly, it was held vide the impugned order that accused could not understand the nature of act committed by him nor was he capable of entering a defence and thus, there was no ground to proceed against accused Neeraj. The relevant portion of the impugned order is set out below:

“ Dr. Vijender Singh has appeared on behalf of the Medical Board, which was constituted to find out whether accused is fit to stand trial.

He has been examined as CW-1. Dr. Vijender Singh deposed that accused Neeraj has been diagnosed as a severe c