The court established that Section 329 Cr.P.C. requires a preliminary indication of unsoundness of mind before necessitating an enquiry.

O R D E R

The challenge in this Crl.M.C is to the order dated 19.01.2023 in CMP No.8(a)/2023 in Sessions Case No. 754/2020 on the file of the Fast Track Special Court, Koyilandi. The petitioner faces charges under Section 8 r/w Sections 7, 9(m), and 9(i) r/w Section 10 of the POCSO Act, 2012 and Section 511 r/w Section 377 of the Indian Penal Code.

2. The Court below proceeded with the trial. The petitioner participated in the trial. After examination of the petitioner under Section 313 Cr.P.C., the Court posted the case for defence evidence. The counsel for the petitioner submitted an application pleading that the petitioner had mental problems and that he was incapable of understanding the consequences of his acts. The learned counsel for the petitioner wanted to subject the petitioner to medical examination.

3. The learned Public Prosecutor resisted the application contending that the petitioner/accused was capable of understanding the proceedings and no materials were produced before the Court to show that the petitioner had mental incapacity of any nature at any time.

4. After hearing both sides, the Trial Court passed the following order :

“When this petition was taken up for hearing, it was asked to the learned counsel for accused that what was really intended by this petition. This was asked to the learned counsel only to understand whether petition was filed for conducting an enquiry under 329 Cr.P.C. or the accused is taking his mental condition as a defence against the prosecution allegation. It is clarified by the learned counsel for accused that he want to make the mental state of accused as a defence against the contentions of prosecution. That means accused want to take defence pointing out his mental state. So there is no need to conduct any enquiry u/s.329 Cr.P.C. More over, during the prosecution evidence, PW.1 to PW.19 were examined and all of these witnesses were thoroughly cross examined after getting proper instruction from the accused. Thereafter questioning of accused was done u/s.313 Cr.PC, wherein accused was capable of answering all the questions put to him. So he is capable of understanding the allegation made against him and frame defence.(sic)

The petitioner is already on bail. In the petition itself it is mentioned that he want to make his mental condition as a defence against the prosecution allegation. The petitioner is free to make any defence with respect to the case against him. But there is no need for this court to send petitioner before the medial board for understanding his mental condition. Such steps are required only in a case where enquiry u/s. 328, 329 Cr.P.C. are conducted. In this case no such enquiry is warranted.(sic)”

5. Heard the learned counsel for the petitioner and the learned public prosecutor.

6. Is the Court always bound to conduct a detailed enquiry, whenever a counsel for the accused raises a point before a Sessions Judge that the accused is of unsound mind?

7. The relevant statutory provision is Section 329 Cr.P.C., which reads thus :- “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 consequently incapable of making his defence, the Magistrate or Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Magistrate or Court, after considering such medical and other evidence as may be produced before him or it is satisfied of the fact, he or it shall record a finding to that effect and shall postpone further proceedings in the case.”

(emphasis added)

8. Going by the statutory provision, the essential condition for the applicability of this Section is that it must appear to the Court that the accused brought before it is of unsound mind.

9. The word ‘appears’ in the provision is guidance for construction. It refers to a circumstance with some indication that makes it appea