The court emphasized strict adherence to statutory procedures for assessing mental fitness for trial, highlighting the consequences of non-compliance with higher court directives.

O R D E R

Dated this the 21^st day of October, 2024 This Criminal Miscellaneous Case has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita , 2023 (hereinafter referred to as ‘ BNSS ’ for short) though it is wrongly filed as under Section 482 of the Code of Criminal Procedure . The prayer in this petition is to set aside order dated 06.09.2024 in CMP No.290/2024 in S.C.No.789/2018 on the files of the Fast Track Special Court, Kunnamkulam.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail.

3. As submitted by the learned counsel for the petitioner, earlier, as per order in Crl.M.C.No.428/2023, at the instance of the same petitioner represented by his guardian, this Court considered the impact of Sections 329 , 330 and 331 of the Indian Penal Code (hereinafter referred to as ‘IPC’

for short) as well as under Section 105 of the Mental Healthcare Act , 2017, after referring the provisions and decisions thereof, and finally, in paragraph No.16, it is observed as under:

''16. The petitioner had produced medical reports before the Court below to substantiate that he was incapable of making his defence due to mental illness. Under Sections 328 and 329 of Cr.P.C. the Sessions judge had the onerous responsibility to hold an inquiry regarding the soundness of the accused’s mind and his consequent incapacity to make his defence. Under Section 105 of the Mental Healthcare Act , if any proof of mental illness is produced and is challenged by the other side, the Court shall refer the same for further scrutiny to the Board concerned, and the Board shall, after examination of the person alleged to have a mental illness, either by itself or through a committee of experts, submit its opinion to the Court. The opinion of the Board referred to in of the shall form the foundation of the decision of the Court on the question whether the trial in respect of the person could be proceeded with or not. In the present case, apparently, the learned Sessions Court neither has followed the provisions of Section 328 or Section 329 Cr.P.C. nor the mandate of of the .“

4. Thereafter, the order dated 04.01.2023 in CMP No.93/2022 in S.C.No.789/2018 was set aside and a direction was issued, as stated in paragraph No.18 of the said order, which is extracted as under:

“18. A fair trial demands the matter be reconsidered by the trial Judge. Therefore, the order dated 4.1.2023 in C.M.P.No.93/2022 in S.C.No.789/2018 is set aside. The trial Court shall reconsider the matter and proceed further in accordance with law, strictly following the procedure contemplated in Chapter XXV of the Code of Criminal Procedure and Section 105 of the Mental Healthcare Act , 2017.”

5. At present, the grievance of the petitioner is that even though the learned Special Judge referred the petitioner to a Consultant Psychiatrist, attached to Government Mental Health Centre, Thrissur, and obtained a certificate dated 25.06.2024, stating that the petitioner is fit to stand trial, as directed by this Court, the procedure contemplated under Section 105 of Mental Healthcare Act was not complied, thereby the order of this Court was not fully complied.

6. The learned Public Prosecutor, on scrutiny of the materials, would submit that since the procedure contemplated under Section 105 of the Mental Healthcare Act was not complied, as directed by this Court, the order may be set aside with direction to the learned Special Judge to comply the said procedure also and continue trial thereafter.

7. Having addressed the submissions made, even though as per the report of Dr.Shaji T.K, Government Mental Health Centre, Thrissur, dated 25.06.2024, it was opined that the petitioner is having an Organic Mood Disorder. Currently in remission on treatment, as on date he is fit to stand trial, the procedure provided under Section 105 of Mental Healthcare Act , 2017, was not complied.

8. As per the order impugned, the learned Special Judge taken the