IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA ON THE 15^th OF NOVEMBER, 2022 MISC. CRIMINAL CASE No. 52800 of 2022 BETWEEN:-

DEENU ALIAS DEENDAYAL S/O SH. UDAY SINGH ADIVASI, AGED ABOUT 21 YEARS, OCCUPATION: LABOUR R/O VANDANPURA POLICE STATION SATANWADA, DISTRICT SHIVPURI (MADHYA PRADESH)

.....APPLICANT (BY SHRI B.S. GOUR - ADVOCATE )

AND THE STATE OF MADHYA PRADESH THROUGH POLICE STATION POHARI, DISTRICT SHIVPURI (MADHYA PRADESH)

.....RESPONDENT (BY SMT. KALPANA PARMAR - PANEL LAWYER)

This application coming on for hearing this day, the court passed the following:

ORDER

Case diary is available.

This fourth application under Section 439 of Cr.P.C. has been filed for grant of bail. The third application was dismissed as withdrawn by order dated

23.09.2022 passed in M.Cr.C.No.45422/2022.

The applicant has been arrested on 18.05.2021 in connection with Crime No.33/2021 registered at Police Station Pohari, District Shivpuri for offence under Sections 363, 366, 376(2)(n) of IPC and under Section 3/4 of the POCSO Act.

Signature Not Verified Signed by: MONIKA It is submitted by the counsel for the applicant that by order dated

17/08/2022, the trial Court has stayed the further proceedings on the ground of unsoundness of applicant and accordingly, the applicant may be released on a security given by the father of the applicant.

Per contra, the application has vehemently opposed by the counsel for the State.

Section 330 of CrPC reads as under:-

"330. Release of person of unsound mind pending investigation or trial.-(1) Whenever a person if found under section 328 or section 329 to be incapable of entering defence by reason of unsoundness of mind or mental retardation, the Magistrate or Court, as the case may be, shall, whether the case is one in which bail may be taken or not, order release of such person on bail:

Provided that the accused is suffering from unsoundness of mind or mental retardation which does not mandate in-patient treatment and a friend or relative undertakes to obtain regular out-patient psychiatric treatment from the nearest medical facility and to prevent from doing injury to himself or to any other person.

(2) If the case is one in which, in the opinion of the Magistrate or Court, as the case may be, bail cannot be granted of if an appropriate undertaking is not given, he or it shall order the accused to be kept in such a place where regular psychiatric treatment can be provided, and shall report the action taken to the State Government.:

Provided that no order for the detention of the accused in a lunatic asylum shall be made otherwise than in accordance with such rules as the State Government may have made under the Mental Health Act, 1987 (14 of 1987).

(3) Whenever a person is found under section 328 or section 329 to be incapable of entering defence by reason of unsoundness of mind or mental retardation, the Magistrate or Court, as the case may be, shall, keeping in view the nature of the act committed and the extent of unsoundness of mind or mental retardation, further determine if the release of the accused can be ordered:

Signature Not Verified Signed by: MONIKA Provided that-

(a) if on the basis of medical opinion or opinion of a specialist, the Magistrate or Court, as the case may be, decide to order discharge of the accused, as provided under section 328 or section 329, such release may be ordered, if sufficient security is given that the accused shall be prevented from doing injury to himself or to any other person;

(b) if the Magistrate or Court, as the case may be, is of opinion that discharge of the accused be ordered, the transfer of the accused to a residential facility for persons of unsound mind or mental retardation may be ordered wherein the accused may be provided care and appropriate education and training."

There is nothing on record to show that in-patient treatment of the applicant is not required, therefore, the provision of Section 330(1) of CrPC would not ap