Can a person of unsound mind, in relation to whom any investigation or trial is pending, be released?

Question: Can a person of unsound mind, in relation to whom any investigation or trial is pending, be released?

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Answer

Chapter 25 of the Code of Criminal Procedure deals with the accused persons of unsound mind. The chapter starts with Section 328 and ends with Section 339. An accused person in a layman’s language is any person who is presumed to be charged with some offence, or against whom any claim of committing an offence is made. An unsound person is a person who is lunatic or otherwise insane.

Release of Lunatic Pending investigation or Trial – Section 330

Subsection (1) of Section 330 provides that whenever a Magistrate or a Court finds the accused to be of unsound mind under Section 328 or Section 329, he or it shall order the release of such person whether the offence is bailable or not:

Provided that the accused is suffering from such unsoundness or mental retardation which does not require in-patient treatment, and a friend or relative takes responsibility that such person will not cause injury to himself or any other person.

Subsection (2) says that if the offence is such that bail cannot be granted or proper undertaking is not given then the magistrate shall order such person to be kept at such a place where he can get regular psychiatric treatment and report the action taken to the State Government:

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

(3) Whenever a person is found under Section 328 or Section 329 to be incapable of entering into defense because of unsoundness of mind or mental retardation the Magistrate or the Court as the case may be, shall keep in mind the nature of the offence committed and the extent of unsoundness or mental retardation, and shall further determine whether the accused can be released or not:

Provided that:

• If on the opinion of the medical specialist, the Magistrate or Court as the case may be, decide that the accused should be discharged as mentioned under Section 328 and Section 329, such release may be ordered, if sufficient security is given that the accused will not cause injury to himself or any other person
• If the Court or Magistrate as the case may be, is of the opinion that discharge of the accused cannot be ordered, the Magistrate or Court shall order the transfer of the accused to a residential facility for persons of unsound mind or mental retardation where the accused may be provided with proper care and appropriate training and education.

It was held in Joy Hari Kor (1877) 2 Cal 356 that the authority of a Magistrate to act under subsection (1) of section 330 ceases when the lunatic is handed over to the care of the State Government. If the relative of such lunatic desires to have the custody of the lunatic he should apply, not to the Magistrate, but to the Government.

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