Karan Pradeep Nair vs The State Of Maharashtra And Anr
2021 Latest Caselaw 14555 Bom

SANTOSH
SUBHASH                                                             CRWP2091-2021.DOC
KULKARNI
                                                                                  Santosh
Digitally signed by
SANTOSH SUBHASH
KULKARNI
Date: 2021.10.06
14:15:15 +0530
                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CRIMINAL APPELLATE JURISDICTION


                                     WRIT PETITION NO. 2091 OF 2021

                           Karan Pradeep Nair
                           Age 27 years, Occu. : Architect,
                           Residing at : Plot 45/A, Silver Oak
                           Estate, Ground Floor, Bhulabhai Desai
                           Road, Mumbai - 400 026.                        ...Petitioner

                                         Versus

                      1. State of Maharashtra
                         L. T. Marg Police Station
                      2. Jitendra Pandurang Kadam
                         (PI) - Marine Drive Police Station,
                         R/o.5/185, Aaram Nagar, Seven
                         Bungalows, Police Line, Andheri West,
                         Mumbai - 400 061.                             ...Respondents


                      Mr. Rizwan Merchant, a/w Mr. J. R. Kshirsagar, i/b Mr.
                            Pankaj B. Bafna, for the Petitioner.
                      Mr. S. R. Shinde, APP for the State/Respondent no.1.


                                                   CORAM: S. S. SHINDE &
                                                             N. J. JAMADAR, JJ.

RESERVED ON: 23rd SEPTEMBER, 2021.

PRONOUNCED ON: 6th OCTOBER, 2021.

ORDER:- [PER : N. J. JAMADAR, J.]

1. This petition under Article 226 of the Constitution of India

is preferred to quash and set aside the prosecution, being

PW/361/2020, arising out FIR No.282/2020, dated 9th May,

2020, registered with L.T. Marg Police Station, Mumbai, for the

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offences punishable under Sections 188, 269, 307, 324, 332,

353 of the Indian Penal Code, 1860 ("the Penal Code"), Section

27 read with Section 4 of the Arms Act, 1959 and Section 135

read with Section 37(1) of the Maharashtra Police Act, 1951.

2. The petition arises in the backdrop of the following facts:

(a) On 8th May, 2020, Jitendra Kadam (hereinafter

referred to as, "the first informant"), then posted as the Police

Inspector at Marine Drive Police Station, was on patrolling duty.

Near Mafatlal Bath junction, the petitioner was found

approaching unmasked. The petitioner was armed with a

chopper. The petitioner proceeded towards Marine Drive

Railway Station. When the first informant attempted to

intercept the petitioner, the latter allegedly ran away amidst

threats that whoever came forward to catch him, would be

assaulted. The police party chased him. The first informant

succeeded in accosting him near Appanag Building on M.K.

Road. The petitioner allegedly aimed a blow by means of

chopper on the head of the first informant amidst threat that if

first informant tried to catch him, he would be killed. The first

informant took an evasive action and the blow fell on his left

shoulder. When Mr. Shelke, Police Sub-Inspector attempted to

catch him, the petitioner inflicted a blow by means of chopper

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on the right hand of Mr. Shelke. Eventually, the petitioner was

overpowered by police and disarmed. The first informant thus

lodged report.

(b) Investigation commenced. Accused came to be

arrested. Post completion of investigation, report under Section

173 of the Code of Criminal Procedure, 1973 ("the Code") came

to be lodged against the petitioner. The jurisdictional Magistrate

committed the case for trial to the Court of Sessions, Greater

Bombay.

(c) The petitioner has invoked the writ jurisdiction of

this Court seeking quashment of prosecution, arising out of FIR

No.282/2020 on the ground that the petitioner had no mens

rea at the time of the commission of the alleged offences. If the

acts attributed to the petitioner are considered in the light of the

circumstances which preceded, attended and succeeded the

said occurrence, according to the petitioner, it becomes

abundantly clear that on account of the unsoundness of mind

the petitioner was incapable of knowing the nature of the act or

that he was doing what was either wrong or contrary to law.

The petitioner thus cannot be made to undergo the rigours of

the trial when the material on record squarely brings the acts

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and conduct of the petitioner within the exception of insanity

envisaged by Section 84 of the Penal Code.

3. We have heard Mr. Merchant, the learned Counsel for the

Petitioner and Mr. Shinde, the learned APP for the State, at

some length. With the assistance of the learned Counsel for the

parties, we have perused the material on record, especially, the

report under Section173 of the Code and its accompaniments.

4. Mr. Merchant, the learned Counsel for the petitioner took

us through the FIR and the statements of the police personnel,

who accompanied the first informant at the time of the alleged

occurrence. An endeavour was made to demonstrate that from

the bare perusal of the allegations in the FIR it becomes evident

that the petitioner had no intention to commit murder or cause

grievous injury to any person. Mr. Merchant, invited the

attention of the Court to the injury certificates to draw home the

point that the first informant and the injured witnesses had

suffered simple injuries on hands and legs. None of the injured

had sustained serious injury on a vital part of the body.

5. Mr. Merchant would urge that the petitioner had taken the

defence of unsoundness of mind at the first possible

opportunity. An application was preferred on the very day the

petitioner was produced before the learned Magistrate.

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However, the learned Magistrate rejected the application on an

incorrect premise that no document was attached in support of

the ground stated in the application.

6. A strong reliance was placed on the report of a Psychiatrist

to the effect that on the basis of the information furnished by

the petitioner's mother, including the evaluation of the video

clips and the instances narrated by the petitioner's mother, he

had recommended that the petitioner required immediate

hospitalization for further psychiatric evaluation and treatment.

Accordingly, after release on bail, the petitioner was evaluated

and treated by the Psychiatrists at Chaitanya Institute of Mental

Health. The petitioners current diagnosis is 'Schizophrenia in

partial remission' and the treatment includes 'Psycho-

pharmacotherapy and psychotherapy'.

7. Laying emphasis on the aforesaid certificate, Mr. Merchant

vehemently urged that even if the case of the prosecution is

taken at its face value, the petitioner cannot be subjected to face

the trial as the act of the petitioner clearly fell within the ambit

of Section 84 of the Penal Code. To lend support to this

submission, Mr. Merchant placed a strong reliance on the

judgment of the Rajasthan High Court in the case of Vidhya

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Devi vs. State of Rajasthan.1 In the said case, the appellant

therein had assailed the conviction on the ground that she was

suffering from schizophrenia at the time of occurrence and was

thus entitled to the benefit of the exception contained in Section

84 of the Penal Code. In the said context, the Rajasthan High

Court enunciated the legal position in the following words:

"26. A fundamental principle of criminal law is that mens rea (guilty mind) is an essential element in every offence and no crime can be said to have been committed if the mind of the person doing the act is not guilty. Since criminal act is an indispensable element in every crime, a person incapable of entertaining such intent cannot incur legal guilt. Idiots and lunatics are, therefore, not liable in criminal law for their acts. It has been said that a mad man is best punished by his own madness. (Furiosus furore suo punier); or that a mad man has no will (Furiosus nulla voluntus est); or a mad man is like one who is absent (Furiosus absentis loco est).

27. To establish that an act done cannot be said to be an offence as covered by Section 84 IPC, the following elements must be present:-

(i) the accused was of unsound mind at the time of commission of the act; and

(ii) by reason of unsoundness of mind, the accused was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law.

28. Apart from this, there are certain principles to be borne in mind before applying Section 84 IPC and they are as follows:-

(a) every type of insanity is not legal insanity; the cognitive faculty must be so destroyed as to render one incapable of knowing the nature of his act or that what he is doing is wrong or contrary to law;

(b) the Court shall presume the absence of such insanity'

(c) the burden of proof of legal insanity is on the accused though it is not as heavy as on the prosecution to prove an offence;

1    2004 SCC Online Raj 294.

                                                       CRWP2091-2021.DOC

(d) the Court must consider whether the accused suffered from legal insanity at the time when the offence was committed;

(e) in reaching such a conclusion, the circumstances which preceded, attended or followed the crime are relevant consideration; and

(f) the prosecution in discharging its burden in the face of the plea of legal insanity has merely to prove the basic fact and rely upon the normal presumption of law that everyone knows the law and the natural consequences of his act."

8. Mr. Merchant further submitted that schizophrenia with

which the petitioner has been suffering from is but a form of

insanity. Support was sought to be drawn from the following

observations of the Rajasthan High Court in paragraphs 35 and

36 of the aforesaid judgment:

35. Schizophrenia has been defined in Livingstone's Medical Dictionary as a group of mental illness characterised by disorganisation of the patient's personality, often resulting in chronic life long ill-health and hospitalization. In its simple form the patient is dull, withdrawn, solitary and inactive.

36. Schizophrenia is one of the forms of insanity. Each case of schizophrenia has to be considered on its own merits. It is an illness of slow insidious onset developing over years. There may be report of strange, odd inappropriate behaviour."

9. As against this, Mr. Shinde, the learned APP, submitted

that, at this stage, there is ample material to demonstrate that

the petitioner was cognizant of the nature of the act, and

intentionally caused hurt to the informant and the prosecution

witnesses. Mr. Shinde laid stress on the fact that there is no

material to show that the petitioner had been suffering from

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mental illness from before the occurrence. The fact that the

petitioner was subsequently treated for mental illness is not of

determinative significance, submitted Mr. Shinde.

10. We have given our anxious consideration to the aforesaid

submissions.

11. To begin with, from the perusal of the allegations in the

first information report and the statements of witnesses, it

becomes evident that the petitioner allegedly inflicted blows by

means of chopper, when the police party attempted to chase and

pin him down, after noticing that he was roaming around armed

with a chopper unmasked in breach of Covid-19 restrictions.

The first informant and witnesses have categorically stated that

whenever they reached close to the petitioner, the latter

threatened to cause harm to them and even threatened to kill

them.

12. In the context of the defence of insanity, the Court is called

upon to consider whether at the time of the commission of the

offence the accused was, by reason of unsoundness of mind,

incapable of knowing the nature of the act or that what he was

doing was either wrong or contrary to law. It is trite that the

crucial point for ascertaining the state of mind of the accused is

the time when the offence was committed. Of necessity, such

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inference about the state of mind of the accused can be drawn

from the circumstances which preceded, attended and followed

the occurrence. Moreover, there is presumption against

insanity. Every person is presumed to know the consequences

of his act. Thus the burden of proof of insanity is on the

accused. However, the standard of proof to dispel the burden is

not proof beyond reasonable doubt but preponderence of

probabilities.

13. A profitable reference, in this context, can be made to the

judgment of the Supreme Court in the case of Bapu alias Gujraj

Singh vs. State of Rajasthan,2 wherein the legal position as

regards the defence of insanity was expounded, as under:

"10. Section 84 embodies the fundamental maxim of criminal law, i.e., actus non reum facit nisi mens sit rea (an act does not constitute guilt unless done with a guilty intention). In order to constitute an offence, the intent and act must concur; but in the case of insane persons, no culpability is fastened on them as they have no free will (furios is nulla voluntas est).

11. The section itself provides that the benefit is available only after it is proved that at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or that even if he did not know it, it was either wrong or contrary to law then this section must be applied. The crucial point of time for deciding whether the benefit of this section should be given or not, is the material time when the offence takes place. In coming to that conclusion, the relevant circumstances are to be taken into consideration, it would be dangerous to admit the: defence of insanity upon arguments derived merely from the character of the crime. It is only unsoundness of mind which naturally impairs the cognitive faculties of the mind that can form a ground of: exemption

2 (2007) 8 Supreme Court Cases 66.

CRWP2091-2021.DOC from criminal responsibility. Stephen in 'History of the Criminal Law of England, Vo. II, page 166 has observed that if a persons cut off the head of a sleeping man because it would be great fun to see him looking for it when he woke up, would obviously be a case where the perpetrator of the act would be incapable of knowing the physical effects of his act. The law recognizes nothing but incapacity to realise the nature of the act and presumes that where a man's mind or his faculties of ratiocination are sufficiently dim to apprehend what he is doing, he must always be presumed to intend the consequence of the action he takes. Mere absence of motive for a crime, howsoever atrocious it may be, cannot in the absence of plea and proof of legal insanity, bring the case within this section This Court in Sherall Walli Mohammed v. State of Maharashtra: (1972 Cr.LJ 1523 (SC) held that: (SCC p.79) "The mere fact that no motive has been proved why the accused murdered his wife and children or the fact that he made no attempt to run away when the door was broken open, would not indicate that he was insane or that he did not have necessary mens rea for the offence."

12. Mere abnormality of mind or partial delusion, irresistible impulse or compulsive behaviour of a psychopath affords no protection under Section 84 as the law contained in that section is still squarely based on the outdated M' Naughton rules of 19th Century England. The provisions of Section 84 are in substance the same as that laid down in the answers of the Judges to the questions put to them by the House of Lords, in M Naughton's case, [(1843) 4 St. Tr. (NS) 847]. Behaviour, antecedent, attendant and subsequent to the event, may be relevant in finding the mental condition of the accused at the time of the event, but not that remote in time. It is difficult to prove the precise state of the offender's mind at the time of the commission of the offence, but some indication thereof is often furnished by the conduct of the offender while committing it or immediately after the commission of the offence. A lucid interval of an insane person is not merely a cessation of the violent symptoms of the disorder, but a restoration of the faculties of the mind sufficiently to enable the person soundly to judge the act; but the expression does not necessarily mean complete or prefect restoration of the mental faculties to their original condition. So, if there is such a restoration, the person concerned can do the act with such reason, memory and judgment as to make it a legal act; but merely a cessation of the violent symptoms of the disorder is not sufficient.

13. The standard to be applied is whether according to the ordinary standard, adopted by reasonable men, the act was right or wrong. The mere fact that an accused is conceited, odd irascible and his brain is not quite all right, or that the

CRWP2091-2021.DOC physical and mental ailments from which he suffered had rendered his intellect weak and had affected his emotions and will, or that he had committed certain unusual acts in the past, or that he was liable to recurring fits of insanity at short intervals, or that he was subject to getting epileptic fits but there was nothing abnormal in his behaviour, or that his behaviour was queer, cannot be sufficient to attract the application of this section."

14. On the aforesaid touchstone, reverting to the facts of the

case, the reliance sought to be placed by the petitioner on the

certificate of the Psychiatrist, referred to above, at this stage,

does not seem to advance the cause of the petitioner. The said

evaluation is evidently based on the narration of the facts and

incidents by the mother of the petitioner, post occurrence. It is

not the claim of the petitioner that the petitioner had been

undergoing treatment for the ailment since prior to the

occurrence. Thus, at this juncture, there is no material which

would shed light on the circumstances which preceded the

occurrence or the state of mind of the petitioner proximate to

the time of occurrence.

15. As regards the circumstances which attended the alleged

crime, from the narration of the first informant and the

witnesses, prima facie, the petitioner allegedly resisted the

attempts to catch him and threatened to cause harm to the

police personnel and attempted blows by means of chopper.

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16. Undoubtedly, there is material to indicate that the

petitioner was admitted in Chaitanya Institute of Mental

Health, post release on bail. This fact may bear upon

the state of mind of the petitioner so as to adjudicate the

complicity for the alleged occurrence. However, it may not

assume decisive significance as the determinative point of time

for evaluating the state of mind of the accused is the time when

the offence was committed.

17. In our view, in the facts of the instant case, on the basis of

the material pressed into service on behalf of the petitioner, at

this juncture, it may not be possible to draw an inference that at

the time of the alleged occurrence the petitioner was incapable

of knowing the nature and quality of the act. Appreciation of

the material on record to evaluate the merits of the defence,

which Mr. Merchant desires this Court to venture into, is not

permissible in exercise of extraordinary and inherent

jurisdiction. The question as to whether the petitioner was

suffering from such mental ailment which prevented him from

appreciating the nature and quality of the act is, thus, a

matter for trial.

18. Mr. Merchant canvassed another submission that the

petitioner, on account of unsoundness of mind, is incapable of

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defending himself. Thus, the petitioner cannot be forced to face

the trial.

19. It would be suffice to note that a prosecution cannot be

quashed on the ground that an accused is incapable to defend

himself on account of unsoundness of mind. Chapter XXV of

the Code makes elaborate provisions to address the situations

when an accused is found to be incapable of defending himself,

at the trial, on account of unsoundness of mind.

20. We are sure that if the issue of applicability of the

provisions contained in Chapter XXV of the Code is brought to

the notice of the learned Sessions Judge either by way of an

application by the petitioner or otherwise, the learned Sessions

Judge would deal with the same in accordance with law.

21. For the forgoing reasons, we are not inclined to entertain

this petition.

22. The petition thus stands rejected.

23. We make it clear that the consideration is confined to the

prayer for quashment of the prosecution in exercise of

extraordinary jurisdiction and we may not be understood to

have expressed opinion on the merits of the defence and the

learned Sessions Judge shall deal with all the issues which may

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arise in the case without being influenced by any of the

observations made hereinabove.

     [N. J. JAMADAR, J.]           [S. S. SHINDE, J.]