V.I. Thankappan vs State Of Kerala
2024 Latest Caselaw 26466 Ker

Kerala High Court

V.I. Thankappan vs State Of Kerala on 5 September, 2024

Author: K. Babu

Bench: K. Babu

                                                2024:KER:67342

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 5TH DAY OF SEPTEMBER 2024/14TH BHADRA, 1946
                    CRL.MC NO. 6370 OF 2023

           (CRIME NO.2/2007 OF VACB, ERNAKULAM)
       (AGAINST THE ORDER DATED 20.07.2023 IN CC NO.33 OF
2011 OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE,THRISSUR)
PETITIONER/ACCUSED:

         V.I. THANKAPPAN, AGED 74 YEARS
         S/O IYPE, VADAKKEPARAMBIL HOUSE,
         CHAKKANTHARA, GANDHI NAGAR, PALAKKAD
         PIN - 678006 REPRESENTED BY HIS SON
         THARUN V. THANKAPPAN, AGED 38 YEARS,
         S/O.V.I.THANKAPPAN, VADAKKEPARAMBIL HOUSE,
         CHAKKANTHARA,GANDHI NAGAR, PALAKKAD-678006.


         BY ADVS.SHRI.T.KABIL CHANDRAN
         T.D.ROBIN
         R.ANJALI
         AAYSHATH NAJILA SCHEMNAD


RESPONDENTS/STATE & COMPLAINANT:

    1    STATE OF KERALA REPRESENTED BY
         SPECIAL PUBLIC PROSECUTOR VACB,
         HIGH COURT OF KERALA, PIN - 682031.

    2    THE SUPERINTENDENT OF POLICE,
         VACB, SPECIAL CELL,
         ERNAKULAM, PIN - 682017.

         BY P.P.SRI.G.SUDHEER
         AMICUS CURIAE SHRI.RENJITH B. MARAR
         AMICUS CURIAE SHRI.V.RAMKUMAR NAMBIAR
  THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
05.09.2024,   THE   COURT   ON   THE   SAME   DAY   PASSED   THE
FOLLOWING:
 CRL.MC NO. 6370 OF 2023

                                   2
                                                      2024:KER:67342



                                                          "C.R."


                               ORDER

The challenge in this Crl.M.C. is to the order dated

20.7.2023 in C.C.No.33 of 2011 on the file of the Court of the

Enquiry Commissioner and Special Judge, Thrissur.

2. The petitioner is the accused in the Calendar Case. He is

alleged to have committed offence punishable under Section 13(1)

(e) read with Section 13(2) of the Prevention of Corruption Act.

3. The petitioner, a 74-year-old man, was diagnosed with

'Alzheimer's Dementia' by the Consultant Neurologist at District

Hospital, Palakkad. The counsel for the petitioner filed an application

under Section 329 of the Code of Criminal Procedure (Cr.P.C.) on

14.2.2023 requesting the trial court to try the fact of mental

incapacity of the petitioner/accused due to Alzheimer's Dementia,

contending that he is incapable of making his defence. The learned

Special Judge directed the petitioner to be present in Court and, on

interaction, found that he was not suffering from any infirmity or

unsoundness of mind. Nevertheless, on the insistence of his counsel,

the Court directed the Superintendent of the District Hospital,

Thrissur, to refer the accused to the Department of Neurology,

observe him and issue a certificate about the soundness of his mind. CRL.MC NO. 6370 OF 2023

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Thereafter, the Doctors in the Department of Neuromedicine,

Medical College, Thrissur, examined the petitioner and issued a

certificate (Annexure-A3) stating that he is suffering from severe

dementia, which may be due to multi-factorial causes and that since

it is progressive, chances of a complete recovery is less. The doctor

also pointed out that the mental status of the petitioner is to be

assessed in detail by a psychiatrist, and the patient requires the help

of a caretaker to take care of his daily pursuits.

4. The learned Special Judge, after considering the report

submitted from the Medical College, Thrissur, directed that if it is

required by the party who submitted the application, he shall take or

produce the petitioner before the Mental Health Centre, Thrissur for

observation and to get a report. The learned Special Judge further

directed the Superintendent of Mental Health Centre, Thrissur, to

issue a certificate about the mental status of the petitioner if he

approaches the Mental Health Centre, Thrissur, as per the rules.

Arguments

5. The learned counsel for the petitioner submitted that the

petitioner is incapacitated to defend his case due to his illness. The

learned counsel submitted that 'Alzheimer's Dementia' prevents the

petitioner from giving instructions to his counsel appearing in the

trial Court, and therefore, he is entitled to the protection contained in CRL.MC NO. 6370 OF 2023

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Chapter XXV of the Cr.P.C. The learned counsel for the petitioner

also submitted that the petitioner is suffering from mental illness

within the meaning of the term "unsound mind" as contemplated in

the Cr.P.C.

6. This Court appointed Adv.Shri. V.Ramkumar Nambiar &

Adv.Shri.Renjith B.Marar as Amici Curiae to assist the Court.

7. Shri.V.Ramkumar Nambiar submitted that the materials

placed before the Court would suggest that the petitioner is

incapable of defending himself. The learned Amicus Curiae

submitted that a conjoint reading of Sections 329 of the Cr.P.C and

Section 105 of the Mental Healthcare Act, 2017 indicates that when

an accused suffering from severe dementia is brought before the

Court, the Court shall first decide on the issue regarding the

soundness of the mind of the accused and his consequent incapacity

to make his defence. Shri.Ramkumar Nambiar submitted that if it

appears to the Court that the accused is suffering from severe

dementia, the Court has the onerous responsibility to proceed under

Chapter XXV of the Code and Section 105 of the Mental Healthcare

Act, 2017. Shri.Ramkumar Nambiar further submitted that a fair

trial demands that the Court should follow the procedure mentioned

above.

8. The learned Amicus Curiae Shri.Renjith B.Marar CRL.MC NO. 6370 OF 2023

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submitted that, as far as the disease 'Alzheimer's Dementia' is

concerned, there is no known treatment protocol that can stop the

progression of the disease and the mere reason that there is no

explicit provision in the statute shall not prevent the Court to

recognize that dementia is a form of mental disability that may affect

the capacity of the accused from participating in the judicial

proceedings against him.

9. The learned Amici Curiae have taken me to the various

provisions in Chapter XXV of the Cr.P.C and Chapter XXVII of the

Bharatiya Nagarik Suraksha Sanhita, 2023 (for short 'the Sanhita')

and the relevant precedents in support of their contentions.

10. The issues that arise for consideration are:

(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.

Issue No.1

11. The essential question is the fitness of an accused who

is suffering from multi-factorial dementia to stand trial. `Dementia'

is a neurogenerative disease that starts slowly but gets worse over

time. It is characterized by changes in the structure of the brain that CRL.MC NO. 6370 OF 2023

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cause the brain cells to shrink, and to eventually die. As dementia

advances, various symptoms start to surface, which include

problems with language, memory loss, mood swings, loss of

motivation, self-neglect, and behavioural issues. No known

treatment protocol can stop or reverse the progression of dementia.

People affected by dementia become increasingly reliant on others

for assistance as the disease progresses.

12. The learned counsel for the petitioner had filed an

application under Section 329 of the Cr.P.C seeking to postpone the

trial on the ground that due to dementia, the petitioner is

incapacitated to defend himself. The learned Special Judge held that

if the party requires, he can get examined by the Superintendent of

the Mental Health Centre, Thrissur. The learned Special Judge also

directed the Superintendent of the District Hospital to issue a

certificate regarding the mental status of the petitioner if he

approaches.

13. The principle of fair trial demands that the accused is

informed of his accusation and given an opportunity to prefer his

defence. He has a right to be defended by a lawyer of his choice.

Mental or intellectual disability prevents an accused from enjoying

the above protection. The Code of Criminal Procedure contemplates

the various procedures to be followed by a Court when an inquiry or CRL.MC NO. 6370 OF 2023

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trial is to proceed against an accused who is a person of unsound

mind. The relevant provisions applicable to the present facts are

Sections 328 to 331 of the Cr.P.C.

14. The statutory scheme (Sections 328 to 331 of Cr.P.C.)

contemplates the procedure to be followed when the Court deals with

an accused person of unsound mind. Section 328 of the Code

provides the procedure to be followed in case the accused is a

lunatic. Under Sub-section (1), when a Magistrate holding an inquiry

has reason to believe that the person against whom the inquiry is to

be held is of unsound mind and consequently incapable of making his

defence, the Magistrate shall inquire into the fact of such

unsoundness of mind and shall cause such person to be examined by

the civil surgeon of the district or such other medical officer as the

State Government may direct, and thereupon shall examine such

surgeon or other officers as a witness, and shall reduce the

examination to writing. Sub-section (2) provides that pending such

examination and inquiry, the Magistrate may deal with such person

in accordance with the provisions of Section 330 of Cr.P.C. Sub-

section (3) provides that if the Magistrate is of the opinion that the

person referred to in Sub-section (1) is a person of unsound mind

and consequently, incapable of making his defence, he shall record a

finding to that effect and shall postpone further proceedings in the CRL.MC NO. 6370 OF 2023

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case. Section 329 of Cr.P.C provides the procedure in case of a

person of unsound mind tried before Court. Under sub-section (1), if

at the trial of any person before a Magistrate or Court of Session, it

appears to the Magistrate or Court that such person 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 Magistrate or Court, after

considering such medical and other evidence as may be produced

before him or it, is satisfied of the fact, he or it shall record a finding

to that effect and postpone further proceedings in the case. Section

331 provides the procedure for resumption of inquiry. Under sub-

section (1), whenever an inquiry or a trial is postponed under

Section 328 or Section 329 the Magistrate or Court, as the case may

be, at any time after the person concerned has ceased to be of

unsound mind, resume the inquiry or trial, and require the accused

to appear or be brought before such Magistrate or Court. Under Sub-

section (2), when the accused has been released under Section 330,

and the sureties for his appearance produce him to the officer whom

the Magistrate or Court appoints on this behalf, the certificate of

such officer that the accused is capable of making his defence shall

be receivable in evidence.

15. Therefore, when in the committal proceedings, the CRL.MC NO. 6370 OF 2023

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learned Magistrate finds materials or circumstances to doubt the

capacity of the accused to stand for trial, he is bound to proceed as

provided under Section 328. If the Magistrate has reason to believe

that the accused produced before him is of unsound mind and,

consequently, incapable of making his defence, the Magistrate shall

cause that accused to be examined by the civil surgeon or such

Medical Officer as the State Government directs. The Magistrate shall

inquire into the fact of such unsoundness of mind and shall examine

the said surgeon or Medical Officer. If, on such inquiry, the

Magistrate is satisfied that the accused is of unsound mind and

therefore incapable of making his defence, he shall record a finding

to that effect. He shall then postpone the further proceedings in the

case. The Magistrate can proceed with the case only if, upon

conducting the inquiry, he is satisfied that the accused is not of

unsound mind and consequently not incapable of making his

defence. If he records a finding under sub-section (3) that the

accused is incapable of making his defence consequent to the

unsoundness of mind and postpones the further proceedings in the

case, he shall then proceed as provided under Section 331 of the

Code. [vide: Aji @ Ajit Kumar v. State of Kerala

(Crl.A.No.957/2008) (2013 (1) KLT SN 55 (C.No.46)].

16. On 7.7.2018, by way of Act 10 of 2017, the Mental CRL.MC NO. 6370 OF 2023

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Healthcare Act, 2017 came into force. Section 105 of the Act deals

with the procedures to be followed in a judicial process where any

proof of mental illness of a person is produced. Section 105 reads

thus:-

"105.Question of mental illness in judicial process.- If during any judicial process before any competent Court, proof of mental illness is produced and is challenged by the other party, the Court shall refer the same for further scrutiny to the concerned Board and the Board shall, after examination of the person alleged to have a mental illness either by itself or through a committee of experts, submit its opinion to the Court."

17. "Mental illness" is defined in Section 2(s) of the Act as

follows:-

"mental illness" means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by sub-normality of intelligence;"

18. Under Section 105 of the Mental Healthcare Act, if any

proof of mental illness is produced and is challenged by the other

side, the Court shall refer the same for further scrutiny to the Board

concerned, and the Board shall, after examination of the person

alleged to have a mental illness, either by itself or through a

committee of experts, submit its opinion to the Court. The opinion CRL.MC NO. 6370 OF 2023

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of the Board referred to in Section 105 of the Mental Healthcare Act

shall form the foundation of the decision of the Court on the question

of whether the trial in respect of the person could be proceeded or

not.

19. 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. The relevant provisions in the present fact

situation are Sections 367 and 368 of the Sanhita, which are

extracted below:-

"367. Procedure in case of accused being person of unsound mind (1) When a Magistrate holding an inquiry has reason to believe that the person against whom the inquiry is being held is a person of unsound mind and consequently incapable of making his defence, the Magistrate shall inquire into the fact of such unsoundness of mind, and shall cause such person to be examined by the civil surgeon of the district or such other medical officer as the State Government may direct, and thereupon shall examine such surgeon or other medical officer as a witness, and shall reduce the examination to writing.

(2) If the civil surgeon finds the accused to be a person of unsound mind, he shall refer such person to a psychiatrist or clinical psychologist of Government hospital or Government medical college for care, treatment and prognosis of the condition and the psychiatrist or clinical psychologist, as the case may be, shall inform the Magistrate whether the accused is suffering from unsoundness of mind or intellectual disability:

PROVIDED that if the accused is aggrieved by the information given by the psychiatric or clinical psychologist, as the case may be, to the Magistrate, he may prefer an appeal before the Medical Board which shall consist of--

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(a) head of psychiatry unit in the nearest Government hospital; and

(b) a faculty member in psychiatry in the nearest Government medical college.

(3) Pending such examination and inquiry, the Magistrate may deal with such person in accordance with the provisions of section 369.

(4) If the Magistrate is informed that the person referred to in sub-section (2) is a person of unsound mind, the Magistrate shall further determine whether the unsoundness of mind renders the accused incapable of entering defence and if the accused is found so incapable, the Magistrate shall record a finding to that effect, and shall examine the record of evidence produced by the prosecution and after hearing the advocate of the accused but without questioning the accused, if he finds that no prima facie case is made out against the accused, he shall, instead of postponing the enquiry, discharge the accused and deal with him in the manner provided under section 369:

PROVIDED that if the Magistrate finds that a prima facie case is made out against the accused in respect of whom a finding of unsoundness of mind is arrived at, he shall postpone the proceeding for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused, and order the accused to be dealt with as provided under section 369.

(5) If the Magistrate is informed that the person referred to in sub-section (2) is a person with intellectual disability, the Magistrate shall further determine whether the intellectual disability renders the accused incapable of entering defence, and if the accused is found so incapable, the Magistrate shall order closure of the inquiry and deal with the accused in the manner provided under section 369.

368. Procedure in case of person of unsound mind tried before Court.

(1) If at the trial of any person before a Magistrate or Court of Session, it appears to the Magistrate or Court that such person is of unsound mind and consequently CRL.MC NO. 6370 OF 2023

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incapable of making his defence, the Magistrate or Court shall, in the first instance, try the fact of such unsoundness of mind and incapacity, and if the Magistrate or Court, after considering such medical and other evidence as may be produced before him or it, is satisfied of the fact, he or it shall record a finding to that effect and shall postpone further proceedings in the case.

(2) If during trial, the Magistrate or Court of Session finds the accused to be of unsound mind, he or it shall refer such person to a psychiatrist or clinical psychologist for care and treatment, and the psychiatrist or clinical psychologist, as the case may be, shall report to the Magistrate or Court whether the accused is suffering from unsoundness of mind:

PROVIDED that if the accused is aggrieved by the information given by the psychiatrist or clinical psychologist, as the case may be, to the Magistrate, he may prefer an appeal before the Medical Board which shall consist of--

(a) head of psychiatry unit in the nearest Government hospital; and

(b) a faculty member in psychiatry in the nearest Government medical college.

(3) If the Magistrate or Court is informed that the person referred to in sub-section (2) is a person of unsound mind, the Magistrate or Court shall further determine whether the unsoundness of mind renders the accused incapable of entering defence and if the accused is found so incapable, the Magistrate or Court shall record a finding to that effect and shall examine the record of evidence produced by the prosecution and after hearing the advocate of the accused but without questioning the accused, if the Magistrate or Court finds that no prima facie case is made out against the accused, he or it shall, instead of postponing the trial, discharge the accused and deal with him in the manner provided under section 369:

PROVIDED that if the Magistrate or Court finds that a prima facie case is made out against the accused in respect of whom a finding of unsoundness of mind is arrived at, he shall postpone the trial for such period, as in the opinion of the psychiatrist or clinical psychologist, is CRL.MC NO. 6370 OF 2023

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required for the treatment of the accused.

(4) If the Magistrate or Court finds that a prima facie case is made out against the accused and he is incapable of entering defence by reason of intellectual disability, he or it shall not hold the trial and order the accused to be dealt with in accordance with section 369."

20. 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.

21. The Mental Healthcare Act, 2017 defines "mental

illness" as a substantial disorder of thinking, mood, perception,

orientation or memory that grossly impairs judgment, behaviour,

capacity to recognise reality or ability to meet the ordinary demands

of life but does not include mental retardation which is a condition of

arrested or incomplete development of mind of a person, specially

characterised by sub-normality of intelligence.

22. A conjoint reading of the Mental Healthcare Act and the

relevant provisions in the Sanhita indicates that the Legislature has CRL.MC NO. 6370 OF 2023

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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.

23. The fundamental objective of the scheme of the

relevant statutes is to provide a fair and impartial trial to the

accused. It has the demonstrable object that the accused should not

be prejudiced. A fair trial is to be conducted in such a manner that it

would ostracize injustice, prejudice etc. In a criminal trial, the

accused, who is of unsound mind or is faced with intellectual

disability in such a manner that he is not able to comprehend the

gravity of the charges levelled against him, would not be in a

position to explain the criminal acts alleged against him. He is the

only competent person knowing his acts relating to the incriminating

circumstances. It is his fundamental right to provide this vital

information to his counsel. This is the essential reason that

provisions have been engrafted in the Code, in the Sanhita and in

the Mental Healthcare Act, which lay down 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. It is trite CRL.MC NO. 6370 OF 2023

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that there is not even a need for an application under the relevant

Chapter to try the fact of unsoundness or intellectual disability;

rather, it is the mandatory duty of the Court. Dementia is a

progressive loss of mental capacity that includes loss of complex

brain functions over a period of time. As per the available medical

advancements, dementia continues to be a disease/disorder without

a cure, and the best that can be offered is care and support. It is a

form of mental disability that may affect the capacity of an accused

person to effectively participate in judicial proceedings. The

'intellectual disability' referred to in Section 368 of the Sanhita

includes Alzheimer's Dementia if it is in such a stage in which the

accused person is incapable of making his defence. Therefore, I am

of the view that a person suffering from 'Alzheimer's Dementia',

which is of such a degree that renders him incapable of making his

defence, is entitled to the protection contained in Chapter XXV of the

Code and Chapter XXVII of the Sanhita.

24. It is the right of the accused to have a fair trial as

provided under Article 21 of the Constitution, which is sacrosanct of

criminal jurisprudence. 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 CRL.MC NO. 6370 OF 2023

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trial.

25. In Xxx v. State of Kerala (2023 (4) KHC 443 =

2023 (4) KLT 671), relying on Section 105 of the Mental

Healthcare Act, 2017 this Court held that if any proof of mental

illness is produced and is challenged by the other side, the Court

should refer the same to the Board constituted under the Mental

Healthcare Act and the opinion of the Board shall form the

foundation of the decision of the Court on the question whether the

trial in respect of the person could be proceeded with or not.

Applying the principle of lex posterior rule, the presumption is that

the Legislature, while enacting the Sanhita, has taken note of

Section 105 of the Mental Healthcare Act. Therefore, the procedure

to be followed while dealing with persons of unsound mind or

intellectual disability is Chapter XXVII of the Sanhita, and the

reference to the Board as mentioned in Section 105 of the Mental

Healthcare Act is not mandatory as the protection mentioned therein

has been expanded in Chapter XXVII of the Sanhita. Issue No.1 is

answered accordingly.

Issue No.2

26. The Sanhita came into effect on 1.7.2024. Section 531

of the Sanhita is the saving clause. Section 531 reads thus:-

"Section 531 : Repeal and savings (1) The Code of Criminal Procedure, 1973 (2 of 1974) is CRL.MC NO. 6370 OF 2023

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hereby repealed.

(2) Notwithstanding such repeal--

(a) if, immediately before the date on which this Sanhita comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), as in force immediately before such commencement (hereinafter referred to as the said Code), as if this Sanhita had not come into force;

(b) all notifications published, proclamations issued, powers conferred, forms provided by rules, local jurisdictions defined, sentences passed and orders, rules and appointments, not being appointments as Special Magistrates, made under the said Code and which are in force immediately before the commencement of this Sanhita, shall be deemed, respectively, to have been published, issued, conferred, specified, defined, passed or made under the corresponding provisions of this Sanhita;

(c) any sanction accorded or consent given under the said Code in pursuance of which no proceeding was commenced under that Code, shall be deemed to have been accorded or given under the corresponding provisions of this Sanhita and proceedings may be commenced under this Sanhita in pursuance of such sanction or consent.

(3) Where the period specified for an application or other proceeding under the said Code had expired on or before the commencement of this Sanhita, nothing in this Sanhita shall be construed as enabling any such application to be made or proceeding to be commenced under this Sanhita by reason only of the fact that a longer period therefor is specified by this Sanhita or provisions are made in this Sanhita for the extension of time."

27. It is trite that in the absence of a contrary intent,

express or implied, amendments affecting procedures are presumed

to be retrospective. A party to a prosecution has no vested right in CRL.MC NO. 6370 OF 2023

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procedural provisions. Section 531 of the Sanhita has saved the

application of the Code in respect of an appeal, application, trial,

enquiry or investigation pending on the date on which the Sanhita

came into force.

28. In Abdul Khader v. State of Kerala (2024 (5) KHC

1 = 2024 (4) KLT 516) while interpreting the frame of Section 531

this Court held thus:-

"18. .........What emerges from the above in the context of this case is that,-

1. An appeal filed on or after 01.07.2024 shall be governed by the procedure provided under the BNSS and not by the provisions of the Code of 1973.

2. Whether the judgment of conviction was before or after 01.07.2024, if the appeal is filed on or after 01.07.2024, the same can be filed following the procedure contained in the provisions of the BNSS.

3. All applications filed and steps taken in the appeals filed prior to 01.07.2024 shall be under the provisions of the Code of 1973.

4. When an appeal/application is represented after curing the filing defects its date of filing shall relate back to the date of its first presentation..............."

29. Following the principles enunciated above, all

applications filed and steps taken in a pending proceeding prior to

1.7.2024 shall be under the provisions of the Code of Criminal

Procedure, 1973. As I discussed above, Chapter XXVII of the CRL.MC NO. 6370 OF 2023

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Sanhita has given wider protection to a person of unsound mind or a

person suffering from intellectual disability. Where two persons

suffering from a mental disability or intellectual disability are dealt

with differently, one under the Code, and the other under the

Sanhita, it amounts to a violation of Article 14 of the Constitution.

Among equals, the law should be equal and equally administered and

should be treated alike. The guarantee of 'equal protection' under

Article 14 is a guarantee of equal treatment of persons in 'equal

circumstances'. 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. Issue No.2 is answered as above.

The present case

30. Annexure A3 report reveals that the petitioner is

suffering from severe dementia, and the chances of recovery are

less. The petitioner is aged 74 years. The report states that the

petitioner's soundness of mind is to be assessed in detail by a

psychiatrist. The learned Special Judge has taken the stand that if

the party requires it, he should be subjected to an examination by a

psychiatrist. The learned Special Judge lost sight of the principle

that he has an onerous responsibility to try the issue as to whether CRL.MC NO. 6370 OF 2023

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the petitioner has any mental disability. The order impugned is

patently illegal and irregular. The impugned order, therefore, stands

set aside. The learned Special Judge shall reconsider the application

and proceed under Chapter XXVII of the Sanhita.

31. Before parting with this case, this Court places on

record its appreciation to the learned Counsel Sri.V.Ramkumar

Nambiar and Sri.Renjith B. Marar, for their valuable assistance as

Amici Curiae.

The Crl.M.C. is disposed of as above.

Sd/-

K.BABU Judge

TKS CRL.MC NO. 6370 OF 2023

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PETITIONER ANNEXURES

Annexure A1 A TRUE COPY OF THE PETITION DATED 14.02.2023 IN CRL.M.P. NO 346/2023 IN C.C. NO. 33/2011 ON THE FILES OF THE COURT OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE, THRISSUR

Annexure A2 A TRUE COPY OF THE ORDER DATED 13.03.2023 AND 21.03.2023 IN CRL.M.P. NO 346/2023 IN C.C. NO. 33/2011 ON THE FILES OF THE COURT OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE, THRISSUR

Annexure A3 A TRUE COPY OF THE CERTIFICATE DATED 30.03.2023 ISSUED BY DR. BIJU, ASSOCIATE PROFESSOR AND HOD IN CHARGE, DEPARTMENT OF NEURO MEDICINE, MEDICAL COLLEGE, THRISSUR

Annexure A3(A) A TRUE COPY OF THE COVERING LETTER DATED 30.03.2023 ISSUED BY SUPERINTEND IN FAVOUR OF THE COURT OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE, THRISSUR

Annexure A4 FREE COPY OF THE ORDER DATED 20.07.2023 PASSED BY THE COURT OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE, THRISSUR

TKS