The Mental Health Review Board can authorize its officer to submit complaints, enabling investigations under the BNSS while allowing public initiation of complaints without locus standi.

1. The learned Amicus Curiae Sri. V. Ramkumar Nambiar submitted a memo raising the following questions:

“Further S.10.7 deals with the penalties for establishing and maintaining a mental health establishment in contravention of the provisions of this Act. Here it is pertinent to note that S.107(3) postulates that the penalty under this section shall be adjudicated by the State Authority. S.107(4) further states that the failure to pay the penalty would enable the District Collector to recover the same from such persons or mental health establishment as if it were an arrear of land revenue. It is therefore clear that the penalty imposed can be recovered as arrears of land revenue by the District Collector. However when we come to S.108 and S.109 which deal with punishment for contravention of the provisions of the Act, it is stated that any person who contravenes any of the provisions of this Act, or of any rule or regulation made there under shall for first contravention be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both, and for any subsequent contravention with imprisonment for a term which may extend to two years or with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees or with both. S.109 deals with offences by companies. The question that would arise in this instance is, "When a Mental Health Review Board arrives at a finding that a certain practice which is prohibited by this Act is being continued by a person or Mental Health establishment, should the Mental Health Review Board thereafter file a complaint before the Magistrate or the Police so as to make him liable for the punishment of imprisonment, as the Mental Health Review Board is not vested with the powers of arrest and detention and this power can be exercised only by the Judicial Magistrates empowered under the Code or Sanhitha as the case may be." The Rules framed under this Act (The Mental Healthcare (Central Mental Health Authority and Mental Health Review Boards) Rules, 2018) is also silent about the same."

2. As pointed out above, Chapter XV of the Mental Healthcare Act, 2017 ('the Act', for short) deals with offences and penalties for establishing and maintaining mental health institutions without registration or for doing any act in contravention of the provisions of the Act or of any rule or regulation made thereunder. The Act does not provide any special procedure for taking cognizance of those offences or filing a complaint regarding the said offences. In the absence of any such special provisions for regulating the manner of investigation, inquiry or trial of the offences under a special enactment, the provisions of the Code of Criminal Procedure, 1973 (CrPC) / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) would come into play by the operation of S.4(2) of the said Code / Sanhita. S.4 of the BNSS, which corresponds to S.4 of the CrPC, reads as follows:

“4. Trial of offences under Bharatiya Nyaya Sanhita, 2023 and other laws -

1. All offences under the Bharatiya Nyaya Sanhita, 2023 shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

2. All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."

(emphasis added)

3. As per Part II of the First Schedule of BNSS / CrPC, if an offence is punishable with imprisonment for less than three years or with a fine only, it will be non