The Kerala High Court expounded that to preserve the fundamental right of an individual, the provisions of the Sanhita can be extended retrospectively to any proceedings initiated prior to 1.7.2024. The saving provision under Section 531 of the Sanhita shall not deter the enforcement of the fundamental right of an accused.
Brief Facts:
The Petitioner was accused under Section 13(1) (e) read with Section 13(2) of the Prevention of Corruption Act.
The Petitioner aged 74 years old was diagnosed with ‘Alzheimer's Dementia’. An application under Section 329 of the Code of Criminal Procedure (Cr.P.C.) was filed to postpone the trial owing to Petitioner’s mental incapacity due to Alzheimer’s Dementia, contending that he was incapable of making his defence.
Contentions of the Petitioner:
It was submitted that the Petitioner was suffering from mental illness within the meaning of the term “unsound mind” as contemplated in the Cr.P.C.
Observations of the Court:
The primary issues were:
(1) Whether a person who has acute dementia is entitled to the protection contained in Chapter XXV of the Cr.P.C and Chapter XXVII of the Sanhita.
(2) Whether the provisions of Chapter XXVII of the Sanhita can be made applicable to a pending application filed on behalf of an accused affected with intellectual disability in view of the saving clause provided in Section 531 of the Sanhita.
It was noted that the Sanhita came into effect on 1.7.2024. Chapter XXVII of the Sanhita deals with the provisions as to accused persons of unsound mind.
Sections 367 and 368 are almost pari materia with Sections 328 and 329 of the Code. The fundamental difference between the relevant provisions in the Code and the Sanhita is that, in the Code, protection is extended to a person of unsound mind or a person suffering from mental retardation who is incapable of entering defence by reason of such unsoundness or mental retardation whereas, in the Sanhita, the protection is extended to a person of unsound mind or a person suffering from intellectual disability.
The Bench observed that a conjoint reading of the Mental Healthcare Act and the relevant provisions in the Sanhita indicates that the Legislature has given a wider canvass to the phrase ‘incapability of making defence’ by incorporating the term “intellectual disability”. While enacting the Sanhita, the Legislature has noted of the definition of the term “mental illness” provided in the Mental Health Care Act, 2017.
It was opined that an enquiry or trial of a person who is incapable of defending himself due to the disability must be postponed till he can understand the proceedings. Denial of such protection will deny his fundamental human right to have a fair trial, as provided in Article 21 of the Constitution of India.
Therefore, if the provisions of the Sanhita are not extended retrospectively in cases where the accused person is affected by any intellectual disability of such a degree that renders him incapable of making his defence, there would be a failure of fair trial.
The Court ruled that to preserve the fundamental right of an individual, the provisions of the Sanhita can be extended retrospectively to any proceedings initiated prior to 1.7.2024. The saving provision under Section 531 of the Sanhita shall not deter the enforcement of the fundamental right of an accused.
The decision of the Court:
Accordingly, it was directed that the learned Special Judge shall reconsider the application and proceed under Chapter XXVII of the Sanhita.
Case Title: V.I. Thankappan v. State of Kerala & Anr.
Case No.: CRL. MC. No. 6370 of 2023
Coram: Hon’ble Mr. Justice K. Babu
Advocates for Petitioner: Advs. Shri T. Kabil Chandran, T.D. RObin, R. ANjali, Aayshath Najila Schemnad
Advocates for Respondent: Advs. Sri G. Sudheer
Amicuas Curiae: Shri Tenth B. Marar, Shri V. Ramkumar Nambiar
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