Discuss in detail the procedure in case of a person of unsound mind tried before the Court.

Question: Discuss in detail the procedure in case of a person of unsound mind tried before the Court. [UPHJS 2018]

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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. When we talk about an accused being of an unsound mind we mean a person who has committed an offence in a state of mind whereby he couldn’t understand the nature of the act he is committing.

Where an accused is found to be insane, the Court has not only to put questions to him but should try the fact of unsoundness of mind by examining the Civil Surgeon or some other medical officer.

Plea of insanity must first be determined by recording then medical evidence. The trial of an offence without determining the insanity of the accused is violative of the mandatory provisions of section 329.

Procedure in case of a person of unsound mind tried before Court–Section 329

Section 329(1) of the Code of Criminal Procedure says if during the trial before a Magistrate or Court of Session, it appears to the court or Magistrate that the person in question 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 Court or Magistrate after examining the medical and other evidence as may be produced, is satisfied with the fact, he shall record a finding to that effect and shall postpone further proceedings in the case.

Clause (1A) inserted by Act 5 of 2009, Section 26(a) the clause says that if during the trials the Magistrate or the court finds the accused to be of unsound mind, he shall refer such person to a psychiatrist or clinical psychologist for care and treatment, and any of such person whether the psychologist or psychiatrist as the case may be shall report to the Magistrate whether the accused person is suffering from unsoundness of mind :

Provided if the accused is aggrieved by such report he shall prefer an appeal before the Medical Board which shall consist of

• the head of the psychiatry unit in the nearest hospital
• and a faculty member in psychiatry in the nearest medical college

sub-section (2) of the said section says that if the Magistrate or Court is informed that the person referred in sub-section (1A) is a person of unsound mind, the Magistrate or Court shall further determine whether unsoundness of mind renders the accused incapable of entering defense and if the accused is found so incapable, the Magistrate shall examine the record of evidence produced by the prosecution and shall record a finding to that effect if the Court finds no prima facie case is made out against the accused person, he or it shall instead of postponing the trial discharge the accused and shall deal with him according to the provisions of Section 330.

But if the Magistrate finds out that the prima facie case is made out he shall postpone the trial for a period as may be prescribed by the psychiatrist or clinical psychologist for the treatment of the accused.

Section 329 (3) lays down that if the Magistrate or Court finds that a prima facie case is made out against the accused and he is incapable of entering defense because of mental retardation, he shall not hold any trial and may deal with the accused according to Section 330.

In State of Maharashtra v. Sind, A.I.R 1975 SC 1665, the Supreme Court has held that the word “trial” in Section 329 includes reference under sub-section (1) of Section 336. In this case death penalty was given to the accused person of unsound mind the question was whether Section 329 shall apply to the accused when the sentence has been passed by the Sessions Judge but sent for confirmation to the High Court.

It was held that the trial of the accused, a person of unsound mind sentenced to death does not conclude with the termination of the proceedings in the Court of Sessions because the trial cannot be deemed to have concluded until an executable sentence is passed by the competent court.

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