DATE OF JUDGMENT :22.03.2023

1. The petitioner challenges order dated 6^th September, 2022 passed in CT (SPL.) POCSO No.127 of 2020 by the learned Adhoc Additional District and Sessions Judge (FTSC), Jajpur for having erroneously adopted the procedure specified in Section 329 Cr.P.C. on the grounds inter alia that the same is not tenable in law and hence, deserves to be set aside.

2. In fact, the petitioner stands chargesheeted under Section 376(3) IPC besides Section 14(A) of Child Labour (Prohibition) Act along with Section 6 of the POCSO Act read with Section 3(1)(r) and 3(2)(v) (va) of SC & ST (PoA) Act. The impugned order dated 16th September, 2022 by the learned court below relates to a direction for appearance of the petitioner in connection with the proceeding under Section 329 Cr.P.C.

3. Heard Mr. Das, learned counsel for the petitioner and Mr. Praharaj, learned counsel for the State.

4. Mr. Das, learned counsel for the petitioner submits that the petitioner suffers from Dementia since last 6 years as certified by the Medical Board and the said fact was intimated to the learned court below by stating that he is a person of unsound mind and hence to be proceeded with in terms of Section 329 Cr.P.C. An application on behalf of the petitioner was moved in that respect for consideration. In the said proceeding, as per Mr. Das, the learned court below directed the petitioner to physically appear in order to decide the future course of action which is not in accordance with law. It is submitted that since the Medical Board has already certified the petitioner to be suffering from Dementia with definitive cognitive impairment behaviour and psychological symptom which is generally a late stage of manifestation of such disease and duly diagnosed by the doctors of Capital Hospital and AIMS, Bhubaneswar, there was no need of any further examination and hence, the direction of the learned court below is not in accordance with law and while contending so, Mr. Das cites a decision in the case of State of Gujarat Vrs. Manjuben Kasturbhai Nanjibhai Kunvariya reported in (2020) 79 OCR (Guj.) 382.

5. Mr. Praharaj, learned counsel for the State on the other hand submitted that the procedure which has been followed by the learned court below is according to law since the physical presence of the petitioner is necessary in order to decide and determine, whether, unsoundness of mind renders him incapable in entering into defence as the same is a requirement under law in view of Section 329(2) Cr.P.C.

6. The other grounds have not been pressed into service by Mr. Das, learned counsel for the petitioner and the challenge is confined to the procedure followed by the learned court below while dealing with the matter under Section 329 Cr.P.C. The question is, whether, the procedure so adopted by the learned court below in the present case is in accordance with law?

7. The relevant provision of Section 329 Cr.P.C. is reproduced herein below:

“(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 proceeding in the case.

(1A) If during trial, the Magistrate or Court of Sessions finds the accused to be of unsound mind, he or it shall refer such person to a psychiatrist or clinical psychologist for care and treatment, and the psychiatrist or clinical psychologist, as the case may be shall report to the Magistrate or Court whether the accused is suffering from unsoundness of mind: Provided that if the accused is aggrieved by the information given by the psychiatric or clinical psychologist, as the case