Recently, the single judge bench of the Jammu and Kashmir High Court held that the trial of a case commences upon framing of the charges and Section 329 of the Cr.P.C. would come into play only after the framing of the charges and not prior to that.
Brief facts:
The factual matrix of the case is that the charge sheet for the offenses under Section 302 IPC was pending against the Petitioner. An application under Section 328 of the Cr.P.C. was filed by the petitioner seeking an enquiry into the status of his mental health, as according to the petitioner, he was incapable of making his defence on account of unsoundness of his mind. However, the same came to be dismissed. Aggrieved by this, the petition under Section 482 CrPC was filed which also came to be dismissed by the court while observing that power to hold an enquiry in terms of Section 329 of the Cr.P.C. is vested with the Magistrate or the Court of Sessions and in the present case without taking recourse of said remedy the petitioner could not have approached the High Court.
Thereafter, the petitioner moved an application under Section 329 of the Cr.P.C. before the learned Principal Sessions Judge which was rejected on two grounds, one that trial in the case is yet to commence and as such, power under Section 329 of the Cr.P.C. cannot be exercised by the Court at this stage and secondly that on the basis of the material on record and the background circumstances, the petitioner appears to be trying to escape the proceedings under law with a view to delay the trial. Therefore, the present petition.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the Petitioner contended that the Petitioner has been diagnosed with the “Obsesssion with delusional intent” by the doctor. It was furthermore contended that the Petitioner is not capable of making his defence due to his mental condition. At last, it was contended that at least for ascertaining whether or not the petitioner is in such a mental condition as would render him incapable of making his defence, a trial is required to be undertaken in terms of Section 329 of the Cr.P.C.
Observations of the court:
The Hon’ble Court observed that from the perusal of Section 329 of the CrPC that the same come into play once the trial of the case commences. Sub-section (1) & (2) operate at different stages of the trial. Sub-section (1) comes into play prior to the conclusion of the prosecution evidence. This is clear from the use of expressions “if at the time incapable to making his defense”. Furthermore, so far as sub-section (2) of Section 329 of the Cr.P.C. is concerned, it operates at a stage after the prosecution evidence has been closed and the stage of entering the defence of the accused sets in. This is clear from the use of the expression “unsoundness mind rendering the accused incapable of entering his defence”.
Based on these considerations, the court was of the opinion that in the present case, the charges are yet to be performed, therefore, the learned trial court is right in holding the application as pre mature.
The decision of the court:
With the above direction, the court disposed of the petition and requested the trial court to consider the application petitioner afresh after the commencement of trial.
Case Title: Johar Mehmood Vs .U.T. of Jammu and Kashmir
Coram: Hon’ble Mr. Justice Sanjay Dhar
Case No.: Crl R No. 56/2024
Advocates for the Petitioner: Mr. Ajay Awasthi, Advocate with Mr. N. D. Qazi, Advocate
Advocate for the Respondent: Mr. Pawan Dev Singh, Dy.AG
