Kerala High Court
Jose vs The Sub Inspector Of Police on 6 August, 2025
2025:KER:57810
O.P (Crl) No.692/2024 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
WEDNESDAY, THE 6TH DAY OF AUGUST 2025 / 15TH SRAVANA, 1947
OP(CRL.) NO. 692 OF 2024
SC NO.256/2019 OF DISTRICT Court & SESSIONS Court, THRISSUR
PETITIONER/FATHER OF ACCUSED:
JOSE
AGED 77 YEARS
S/O PYLOTH, KANDAMKULATHI HOUSE, ALOOR DESOM & VILLAGE,
MUKUNDAPURAM TALUK, THRISSUR., PIN - 680683
BY ADV SRI.RAJESH CHAKYAT
RESPONDENT/STATE & MOTHER OF DECEASED:
1 THE SUB INSPECTOR OF POLICE
CHALAKUDY POLICE STATION THRISSUR DISTRICT,
PIN - 680307
2 SHEELA JOSE
AGED 55 YEARS
W/O M.O.JOSEPH, MALAPPAN HOUSE, SHA ROAD,
CHALAKUDY P.O, THRISSUR DISTRICT., PIN - 680307
BY ADVS.
SHRI.SARATH BABU KOTTAKKAL
SMT.ARCHANA VIJAYAN
SMT PUSHPALATHA M.K., SR. PUBLIC PROSECUTOR
THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON
29.07.2025, THE COURT ON 06.08.2025 DELIVERED THE
FOLLOWING:
2025:KER:57810
O.P (Crl) No.692/2024 2
"CR"
JUDGMENT
What shall be the proper course to be adopted by the Trial
Court when an accused, against whom the trial was once postponed,
consequent to the enquiry under Section 329 Cr.P.C, is brought back
with the report that he is fit to stand trial? Is the Trial Court required
to refer the matter under Section 105 of the Mental Health Care Act,
2017 to the Mental Health Review Board, at that stage? Should the
accused be given an opportunity, before proceeding with the trial, to
show that he is still incapable of making a defence? These are the
issues to be resolved in this Original Petition, filed under Article 227
of the Constitution of India by the father of the accused in S.C
No.256/2019 on the files of the Sessions Court, Thrissur.
2. The aforesaid case relates to the commission of uxoricide
by the accused who slashed the neck of his wife at the bedroom of
their house, after disrobing her and laying her prone in the bed under
the pretext that he wanted sexual intercourse with her.
3. While the Trial Court was about to proceed with the
framing of charges, the petitioner approached with a contention that
the accused is suffering from paranoid schizophrenia, and that he
2025:KER:57810
cannot stand trial. Treatment records were produced before the
Sessions Court in support of the above contention. Accordingly, the
Trial Court sent the accused for examination at the Mental Health
Centre, Thrissur. After subjecting the accused to observation and
examination for about 10 days, the Psychiatrist concerned submitted
report before the learned Sessions Judge confirming that the accused
suffers from paranoid schizophrenia, and that he cannot stand trial.
The Trial Court examined the above Psychiatrist and handed over the
accused to the custody of the petitioner with a direction that the
accused should be examined by a Medical Board constituted for
analysing his mental condition. Accordingly, a Medical Board
consisting of a senior and a junior Consultant Psychiatrist of
Government Mental Health Centre was constituted. They examined
the accused and submitted a report before the Trial Court. On the
basis of the above report, the Senior Consultant Psychiatrist was
examined before the Trial Court. Since the above Medical Officer
stated before the Trial Court that there is improvement in the mental
ailment of the accused due to medications, and that he is fit to stand
trial, the Trial Court listed the matter for framing charges to
15.01.2021. Aggrieved by the above move, the petitioner herein
2025:KER:57810
preferred W.P.(C) No.1466/2021 before this Court for a direction to
constitute a Medical Board under Section 329(1A) Cr.P.C. The
aforesaid writ petition was disposed of with the observation that it
was for the Trial Court to take a decision in the matter based on the
medical reports, and after conducting an enquiry, as contemplated
under Section 329(2) Cr.P.C. It was accordingly directed that, for
facilitating such enquiry, the trial in S.C No.256/2019 shall be
deferred by a period of six weeks and that the Trial Court shall
consider the necessity of institutionalised treatment of the accused.
Accordingly, the petitioner produced the accused before the Sessions
Court, which sent him for institutionalised treatment. Since the
Medical Officer concerned reported that the accused was not fit to
stand trial, the treatment continued. However, on 16.10.2021, the
Trial Court passed an order to release the accused from the Mental
Health Centre, since a report was received stating that the accused is
fit to stand trial. Accordingly, the Trial Court again resolved to
proceed with the framing of charges against the accused. Thereupon,
the petitioner filed O.P(Crl) No.477/2021 before this Court alleging
violation of the provisions contained in Sections 328 and 329(2) of
Cr.P.C. As per the judgment dated 08.11.2023, this Court directed the
2025:KER:57810
Sessions Court, Thrissur, to conduct an enquiry, as contemplated
under Section 329 Cr.P.C. It was further directed that the framing of
charges in S.C No.256/2019 shall be deferred till the enquiry is
completed. Accordingly, the learned Sessions Judge directed the
Government Mental Health Centre, Thrissur, to have an observation
and certification of the mental status of the accused. The
Government Mental Health Centre, Thrissur, constituted a team
consisting of one Junior Consultant Psychiatrist and one Clinical
Psychologist, and subjected the accused to observation for a period
of 13 days. Thereafter, a report dated 13.08.2024 was submitted
before the learned Sessions Judge stating that the accused is fit to
stand trial, but he needs to continue medications and regular
follow-up under a Psychiatrist for long term to maintain the current
improved status. On receipt of the above report, the learned Sessions
Judge examined the Junior Consultant Psychiatrist, who was one of
the signatories to the above report. She deposed before the Trial
Court in tune with the observations and recommendations in the
report dated 13.08.2024. It is thereafter that the learned Sessions
Judge took the impugned decision to proceed with the hearing on
charge under Section 227 Cr.P.C and posted the case to 09.09.2024.
2025:KER:57810
4. In the present petition, the petitioner would contend that
his son is still suffering from the incurable mental illness of paranoid
schizophrenia, and that he is not capable of making a defence in the
case pending before the Sessions Court. According to the petitioner,
the accused was again admitted and treated at a private hospital
from 07.09.2024 to 21.09.2024 for the serious mental ailment
suffered by him. The petitioner challenges the impugned decision of
the learned Sessions Judge on the following grounds:
i) The Sessions Court did not follow the procedures
prescribed under Sections 328 and 329 Cr.P.C before deciding to
proceed with the framing of charges against the accused.
ii) The Sessions Court did not follow the mandate of Section
105 of the Mental Health Care Act, 2017, which required it to refer
the case to the Mental Health Review Board.
5. Heard the learned counsel for the petitioner and the
learned Public Prosecutor representing the State of Kerala.
6. A perusal of the case records and the procedures followed
by the Sessions Court, Thrissur, would reveal that the accused in S.C
No.256/2019 was subjected to the procedures envisaged under
Section 329 Cr.P.C, with the intervention of this Court on two
2025:KER:57810
occasions, towards providing institutionalised psychiatric treatment to
him and postponing the trial, pending the above course of treatment.
It is, after such prolonged treatment having been administered to the
accused, that Ext.P6 report dated 13.08.2024 was submitted by the
team consisting of a Junior Consultant Psychiatrist and Clinical
Psychologist, who were deputed by the Government Mental Health
Centre, Thrissur, to subject the accused to mental evaluation and
treatment. In the above report dated 13.08.2024, the accused is
stated to be having paranoid schizophrenia, which required continued
medications and regular follow-up under Psychiatrists for a long term
to maintain the current improved status. It was further stated in that
report that he is fit to stand trial.
7. The Junior Consultant Psychiatrist, who is one of the
signatories to the above report, was examined by the learned
Sessions Judge before taking the decision to proceed with the
hearing on framing of charges. However, it is seen from Ext.P7, which
is the copy of the deposition of the above witness that, apart from a
formal affirmation of the findings and recommendation in Ext.P6
report, nothing has been stated by the above Psychiatrist in
connection with the competence of the accused to make his defence
2025:KER:57810
in the criminal prosecution against him. It is very important to note
that the petitioner herein, who was all along pursuing this matter
about the incapability of his son to stand trial in the criminal
prosecution launched against him, was not given an opportunity to
cross-examine the above witness and to elicit the particulars relating
to the mental condition of the accused, as well as the reasons why it
has been stated in Ext.P6 that he is fit to stand trial.
8. It is in this context that the challenge raised by the
petitioner about the non-compliance of the requirements of Section
329 Cr.P.C by the Sessions Court, subsequent to Ext.P6 report,
assumes significance. Section 329 Cr.P.C reads as follows:
"329. 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 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 shall postpone
further proceedings in the case.
[(1A) If during trial, the Magistrate or Court of
Sessions 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
2025:KER:57810
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
medical college.]
(2) If such Magistrate or Court is informed that the
person referred to 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 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 330:
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 required for the
treatment of the accused.
(3) If the Magistrate or Court finds that a prima facie
case is made out against the accused and he is incapable of
2025:KER:57810
entering defence by reason of mental retardation, he or it
shall not hold the trial and order the accused to be dealt
with in accordance with section 330.]"
9. As per sub Section (1) of Section 329 Cr.P.C, if it appears
to the Court during trial that the accused is of unsound mind and
consequently incapable of making his defence, the Court shall try the
fact of such unsoundness and incapacity before proceeding with the
matter and record a finding to that effect, and postpone further
proceedings in the case.
10. Sub Section (1A) of Section 329 Cr.P.C requires the Court
or Magistrate to refer the person to a Psychiatrist or Clinical
Psychologist for care and treatment, if the accused is found to be of
unsound mind and consequently incapable of making his defence.
The Psychiatrist or Clinical Psychologist, to whom the accused is
referred, has to report to the Court or Magistrate, whether the
accused is suffering from unsoundness of mind. The proviso to sub
Section (1A) of Section 329 Cr.P.C confers the right on the accused to
prefer an appeal to a Medical Board consisting of Head of Psychiatry
unit in the nearest Government hospital and a faculty member in
Psychiatry in the nearest medical college, if he is aggrieved by the
2025:KER:57810
information so given by the Psychiatrist or Clinical Psychologist to the
Court or Magistrate.
11. As per sub Section (2) of Section 329 Cr.P.C, the
Magistrate or Court shall further determine whether the unsoundness
of mind renders the accused incapable of entering defence and
record a finding to that effect, if so found. The aforesaid Section
further provides for the discharge of the accused, if the Court or
Magistrate, upon examination of the record of evidence produced by
the prosecution and hearing the Advocate of the accused, finds that
there is no prima facie case made out against the accused. As per
the proviso to the aforesaid Section, the Magistrate or Court shall
postpone the trial for such period, as in the opinion of the Psychiatrist
or Clinical Psychologist, required for the treatment of the accused, if
it is found that a prima facie case is made out against the accused.
12. As per sub Section (3) of Section 329 Cr.P.C, if the
Magistrate or Court finds a prima facie case against the accused, who
is incapable of entering defence by reason of mental retardation, the
accused shall be dealt with, in accordance with Section 330 Cr.P.C,
instead of proceeding with the trial.
2025:KER:57810
13. Section 331 and Section 332 of the Code of Criminal
Procedure (Section 370 and Section 371 of BNSS) deal with the
resumption of enquiry or trial, after the accused ceases to be of
unsound mind. For the sake of convenience and easy reference, the
aforesaid Sections are extracted hereunder:
"331. Resumption of inquiry or trial.--(1) Whenever an
inquiry or a trial is postponed under section 328 or section
329, the Magistrate or Court, as the case may be, may 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.
(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 in this behalf,
the certificate of such officer that the accused is capable of
making his defence shall be receivable in evidence.
332. Procedure on accused appearing before
Magistrate or Court.--(1) If, when the accused appears or
is again brought before the Magistrate or Court, as the case
may be, the Magistrate or Court considers him capable of
making his defence, the inquiry or trial shall proceed.
(2) If the Magistrate or Court considers the accused to be
still incapable of making his defence, the Magistrate or Court
shall act according to the provisions of section 328 or section
329, as the case may be, and if the accused is found to be
of unsound mind and consequently incapable making his
defence, shall deal with such accused in accordance with the
provisions of section 330."
2025:KER:57810
14. As per sub-Section (1) of Section 331 Cr.P.C, the Court
concerned has to require the appearance or production of the
accused before it when the accused has ceased to be of unsound
mind. Sub- Section (1) of Section 332 Cr.P.C enables the Court to
proceed with the trial, if it considers him capable of making his
defence. Sub-Section (2) of the aforesaid Section mandates that if
the Court considers the accused to be still incapable of making his
defence, it shall act according to the provisions of Sections 329 and
330 Cr.P.C. Thus, the pertinent aspect involved is the satisfaction of
the Court concerned as to whether the accused is capable of making
his defence or incapable of making his defence. The finding in the
above regard has to be arrived by the Court not by merely perusing
the report of the Medical Officers concerned. The Medical Officer,
who is competent to state about the treatment administered to the
accused, the mental condition of the accused and the reasons why he
was found to have attained the capability of standing trial, shall be
examined in detail before the Trial Court on the above aspects. It is
also highly necessary that the accused or the person representing
him should be afforded with an opportunity to cross-examine such
Medical Officer and confront the above witness, if the accused is
2025:KER:57810
having a case that he has not regained the capability to stand trial.
After considering all the above relevant aspects and applying the
judicial mind upon it, the Trial Court has to take a decision as to
whether the accused is capable of making a defence, so that it could
proceed with the trial against the accused. In case the Trial Court
finds that the accused is still incapable of making his defence, the
procedures which the Trial Court earlier followed with regard to the
postponement of the trial and further treatment of the accused, has
to be adopted. This is what exactly Sections 331 & 332 Cr.PC.
provides to be done, when the accused is brought back before the
Court concerned after the first round of procedures under Section
329 Cr.PC. Thus, the Trial Court is expected to follow the enquiry to
that limited extent as stated above before taking the decision as to
whether the trial has to be resumed. Needless to say that giving
opportunity to the accused or the person representing him to
participate in such limited enquiry, is having paramount importance.
Any denial of affording such opportunity to an accused or the person
representing him, would vitiate the proceedings initiated by the Trial
Court towards resuming the trial in the case against the accused.
2025:KER:57810
15. Now, the next question to be considered is whether the
Trial Court was bound to refer the case to the Mental Health Review
Board, as per the provisions under Section 105 of the Mental
Healthcare Act, 2017. For the sake of convenience and easy
reference, the aforesaid Section is extracted hereunder:
"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."
16. A plain reading of the aforesaid provision would reveal
that the purpose of that provision is to enable the Court to get the
opinion of the Mental Health Review Board constituted under Section
73 of the said Act, when the proof of mental illness is the subject
matter of dispute in a proceeding before that Court. Obviously, the
legislative objective behind incorporating the aforesaid Section is
that, in matters relating to disputed mental illness, the Courts
concerned should, instead of deciding it on the basis of its own
perceptions, get the opinion of the Board which consists of a panel of
2025:KER:57810
members capable of evaluating the mental condition of a person in a
scientific and systematic manner.
17. It is pertinent to note that in the enquiry contemplated
under Sections 328 & 329 Cr.PC, it is not the mere question whether
a person is having mental illness, which the Court concerned is
expected to embark upon. On the other hand, the cardinal aspect to
be decided in such enquiry is whether the accused facing trial in a
case is capable of making a defence, or incapable of making a
defence due to unsoundness of mind. Even if an accused is found to
be having mental illness, he is bound to undergo trial if his mental
illness is not of such gravity which would render him incapable of
making his defence. Therefore, the mere assessment as to whether
the accused is having mental illness or not, by referring the matter to
the Mental Health Review Board, would not serve any purpose,
unless the opinion sought to be obtained is whether the unsoundness
of mind of the accused is of such an extent which would render him
incapable of making his defence. The purpose to be accomplished in
the above regard could be fulfilled by resorting to the procedures
envisaged under Sections 328 & 329 Cr.PC.
2025:KER:57810
18. It is to be noted that as per Section 74 of the Mental
Healthcare Act, 2017, the medical experts in the panel of the above
Board are two members, of whom one is a Psychiatrist and the other
is a Medical Practitioner. As per the provisions contained in Sections
328 & 329 Cr.PC., the accused require to be examined by Psychiatrist
or Clinical Psychologist in the usual course. As per the proviso to the
above Sections, a Medical Board consisting of head of the Psychiatry
Unit of the nearest Government Hospital and a faculty member in
Psychiatry in the nearest Medical College has to be constituted if the
accused prefers an appeal against the report of the Psychiatrist or
Clinical Psychologist, who had initially evaluated his mental condition.
Thus, it could be seen that a more comprehensive and scientific
framework, when compared with Section 105 of Mental Healthcare
Act, 2017, is provided under Sections 328 & 329 Cr.PC for the
evaluation of the mental condition of the accused. That being so, a
reference under Section 105 of the Mental Healthcare Act, 2017,
cannot be said to be a mandatory or inevitable requirement if the
Trial Court has scrupulously followed the procedures under Sections
328 & 329 Cr.PC. Thus, the contention of the petitioner that the
failure of the Sessions Court to refer the matter to the Mental Health
2025:KER:57810
Review Board under Section 105 of the Mental Healthcare Act, 2017,
has vitiated the procedures, is bereft of merit.
19. As far as the present case is concerned, it is seen that the
petitioner herein, who represents the accused, did not get the
opportunity to participate in the enquiry conducted by the learned
Sessions Judge after the receipt of Ext P6 report that the accused is
fit to stand trial. That being so, it is highly necessary to pass the
necessary orders to enable the petitioner to participate in the enquiry
and cross-examine Junior Consultant Psychiatrist who was examined
before the Sessions Court in respect of the contents of Ext P6 report.
Thus, the relief sought for in this original petition, has to be allowed
to that limited extent.
In the result, the petition stands allowed in part as follows:
(i) The Sessions Court, Thrissur, is directed to afford an
opportunity to the petitioner to cross-examine the Junior Consultant
Psychiatrist, who was examined before that Court while accepting Ext
P6 report (marked as Ext C1 before the Trial Court).
(ii) The Trial Court shall also permit the petitioner to adduce
evidence on his part with regard to the mental illness of the accused,
if he so prefers.
2025:KER:57810
(iii) After considering all the relevant aspects so brought out,
the learned Sessions Judge shall take a decision afresh as to whether
the trial has to be proceeded with in the case against the accused.
(sd/-)
G. GIRISH, JUDGE
jsr/DST
2025:KER:57810
APPENDIX OF OP(CRL.) 692/2024
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE RELEVANT PAGES OF FINAL
REPORT IN CRIME NO.410/2018 OF CHALAKUDI
POLICE STATION
Exhibit P2 A TRUE COPY OF THE RELEVANT PAGES OF
TREATMENT RECORDS OF LAIJO
Exhibit P3 A TRUE COPY OF THE MEDICAL REPORT DATED
23/02/2021
Exhibit P4 A TRUE COPY OF THE JUDGMENT IN WP (C) 1466 OF
2021 DATED 08/03/2021
Exhibit P5 A TRUE COPY OF THE JUDGMENT DATED 08.11.2023
Exhibit P6 A TRUE COPY OF THE REPORT DATED 13.08.2024
ISSUED FROM GOVERNMENT MENTAL HEALTH CENTER,
THRISSUR
Exhibit P7 A TRUE COPY OF THE DEPOSITION GIVEN BY
DR.ROOPASREE, JUNIOR CONSULTANT (PSYCHIATRY)
Exhibit P8 A TRUE COPY OF THE DISCHARGE SUMMARY DATED
21.09.2024 ISSUED BY SACRED HEART MISSION
HOSPITAL; PULLUR
Exhibit P9 A TRUE COPY OF THE PRINT OUT OF E Court
SERVICES DATED 02.09.2024 IN S.C.NO.256/2010
ON THE FILE OF PRINCIPAL DISTRICT AND
SESSIONS Court, THRISSUR
