CRLA/441/2021
2022 Latest Caselaw 1440 UK

  IN THE HIGH COURT OF UTTARAKHAND
               AT NAINITAL

      THE ACTING CHIEF JUSTICE SRI SANJAYA KUMAR MISHRA
                                AND
               JUSTICE SRI RAMESH CHANDRA KHULBE


                   REFERENCE NO. 02 OF 2021

                            10th MAY, 2022

Between:

In the matter of Capital Punishment
awarded to Sanjay Singh
                                            ......           Appellant

and

State of Uttarakhand                        ......         Respondent

Counsel for the appellant : Mr. Arvind Vashistha, learned Senior counsel, Amicus Curiae for the appellant-condemned prisoner

Counsel for respondent : Mr. J.S. Virk, learned Deputy Advocate General with Mr. Rakesh Kumar Joshi, learned Brief Holder for the State

WITH

CRIMINAL APPEAL NO. 441 OF 2021

Between:

Sanjay Singh                                ......           Appellant

and

State of Uttarakhand                        ......         Respondent


Counsel for the appellant          :   Ms. Lovely    Grover,   learned
                                       counsel

Counsel for the respondents        :   Mr. J.S. Virk, learned Deputy
                                       Advocate General for the State

Upon hearing the learned counsel, the Court made the following:

JUDGMENT: (per the Acting Chief Justice Shri Sanjaya Kumar Mishra)

In this Reference under Section 366 of the

Code of Criminal Procedure, 1973 (hereinafter referred

to as 'the Code' for brevity), and the connected Criminal

Appeal No. 441 of 2021, the legality of conviction and

sentence of death recorded by the learned Additional

Sessions Judge, Tehri Garhwal, New Tehri, in Sessions

Trial No. 02 of 2015, as per the judgment dated

21.08.2021, is examined, for confirmation or otherwise

of the death sentence. The conviction itself is challenged

by the condemned prisoner in the connected criminal

appeal.

2) The facts of the case are that the father of the

appellant-condemned prisoner submitted a written

report on 13.12.2014 that the appellant has committed

murder of his mother, brother and sister-in-law by

means of a sword (a sharp edged weapon). On such

report, first information report was registered;

investigation was taken up, and on completion of

investigation, charge-sheet was submitted against the

appellant.

3) Keeping in view the peculiarity of the case,

and the serious contention raised by the learned Senior

Counsel Mr. Vashistha, we are of the opinion that there

is no need to go into the question of facts and

appreciation of evidence at this stage. Rather, we

confine ourselves to the argument advanced by the

learned Senior Counsel, who has been appointed as

Amicus Curiae by the Court, to come to a just and

proper finding.

4) The learned Senior Counsel took us through

the evidence of P.W.13 Dr. Vinay Sharma, P.W.14 Dr.

Mahesh Kumar Khaitan, P.W.15 Dr. Ravi Gupta and

P.W.16 S.C. Godiyal and Exhibit A-36, page 48; Exhibit

A-34, page 46; Exhibit A-39, page 54 and Exhibit A-38,

page 53 of the paper book and contended that the

defence has taken the plea of insanity as available to

him under Section 84 of the Indian Penal Code, 1880

(hereinafter referred to as 'the Penal Code' for brevity).

It is contended by the learned Senior Counsel that in the

entire discussion regarding this aspect of the case, the

learned Additional Sessions Judge failed to appreciate

the fact that during course of trial the appellant was

found to be suffering from mental illness, and for that

purpose the provisions of Section 329 of the Code as

well as Section 105 of the Mental Healthcare Act, 2017

have not been complied with, and the learned Additional

Sessions Judge disbelieved the plea of insanity, and

went on to convict the appellant under Section 302 of

the Penal Code, and sentenced him to death. He further

contended that proper procedure should have been

followed, and for compliance of those provisions, the

matter should be remanded back to the learned trial

court by setting aside the judgment and order passed by

the learned Additional Sessions Judge.

5) The learned Deputy Advocate General Mr. Virk

would argue that the evidence of P.W.15 Dr. Ravi Gupta,

and the effect of Exhibit A-38 appearing at page 53 of

the paper book, has not been discussed in the impugned

judgment. In other words, Mr. Virk fairly conceded that

the judgment lacks clarity on certain aspects such as

plea of insanity, and insanity during course of trial.

6) Before we discuss the evidences available on

record, it is appropriate to take note of the provisions of

law as contained in the Code. Section 329 of the Code,

prescribes the procedure in case of person of unsound

mind tried before Court. The same reads as under:

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 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 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--

(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 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.

7) Thus, this provision lays down a responsibility

on the part of the court of Sessions (we are not referring

to the Magistrate because the case involves a trial by the

Court of Sessions) to act in a particular way when it

appears that a person brought before him, accused of an

offence triable by a court of Sessions, is of unsound

mind and consequently incapable of making his defence.

The Court has to, at the first instance, try the fact of

such unsoundness and incapability. If the Court after

considering the medical and other evidence as may be

produced before him, is satisfied of the fact, he shall

record a finding to that effect and shall postpone further

proceedings in the case. It is further required that the

court of Sessions after recording whether the accused is

of unsound mind or not, shall further determine whether

the unsoundness of mind renders him 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, the Court finds, prima facie, that no case is

made out, then the Court shall instead of postponing the

trial, discharge the accused.

8) Thus, a very onerous responsibility is on the

Court whenever any person is found, prima facie, to be

suffering of unsoundness of mind. Sub-Section (1A) of

Section 329 of the Code further provides that if the

Court of Sessions finds the accused to be of unsound

mind, he shall refer such a 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 Court whether the accused is suffering

from unsoundness of mind. Even, Sub-section (1A) of

Section 329 of the Code provides for an appeal to a

medical Board consisting of head of the psychiatry unit

as well as a faculty member of said department.

9) Thus, it is apparent that the Parliament in its

wisdom has created safeguards for persons who may be

suffering from mental illness, and as such, they are

incapable of defending themselves. So a particular

procedure has been prescribed by the Court itself.

10) Section 105 of the Mental Healthcare Act,

2017, deals with the question of mental illness in judicial

process. The same reads as under:

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 Board shall, after examination of the person

alleged to have a mental illness either by itself or

through a committee of experts, submits its opinion to

the court.

The definition Clause (d) provides that Board

means the Mental Health Review Board constituted by

the State Authority under Sub-section (1) of Section 73

in such manner as may be prescribed.

11) In this case, apparently the learned Additional

Sessions Judge neither has followed the provisions of

Section 329 of the Code, nor made any resort to Section

105 of the Mental Healthcare Act. This aspect is not

disputed by any of the learned counsel appearing in this

case.

12) At this stage, we have to take into

consideration the materials available on record regarding

the mental illness of the appellant-condemned prisoner.

13) First such document is dated 14.12.2014,

which has been marked as Exhibit A-36, appearing at

page 48 of the paper book. It is apparent that the

Medical Officer, District Hospital Baurari, New Tehri

opined that the appellant is physically fit but mental

illness may be present, so referred to clinical

psychologist for evaluation of his illness. Inspite of such

recommendation, the appellant was never evaluated by

the psychiatrist or the clinical psychologist for there is a

specific recommendation of the Medical Officer to refer

the appellant for clinical psychologist. The second

document appearing at page 46 of the paper book,

which has been marked as Exhibit A-34, shows that the

doctor attending the appellant could not conclude

whether a major psychiatric disorder is found in the

appellant. However, for definite opinion of psychological

assessment, the doctor referred the case to a higher

center, which was again not complied or done by any of

the authorities or the court of Sessions.

14) The next document which is available on

record is dated 11.12.2016, appearing at page 54 of the

paper book, marked as Exhibit A-39, which shows that

the appellant was admitted in the hospital from

01.02.2016 to 11.02.2016 for treatment of mental

illness. This report (Exhibit A-39) has been prepared by

P.W.16 Dr. S.C. Godiyal, Professor and Head of the

Department, Department of Psychiatry. He has stated

that he could not reach to any diagnostic conclusion.

Hence, he did not initiate any treatment. This witness

further suggested that the behaviour history before the

arrest of the appellant from his close relative and

neighbours is required for proper management. The

effect of Exhibit A-39, and the evidence of P.W.16 Dr.

S.C. Godiyal has never been discussed by the learned

Additional Sessions Judge in the judgment as conceded

by the learned Deputy Advocate General, and also

submitted by the learned Senior Counsel appearing for

the appellant-condemned prisoner.

15) The most important document, which is part of

the record is Exhibit A-38, which is a report prepared by

a Board of the All India Institute of Medical Sciences,

Rishikesh consisting of five Experts from the aforesaid

Medical Institute. Dr. Ravi Gupta has been examined as

P.W.15. In his examination-in-chief, this witness stated

on oath that the appellant was produced before them,

i.e., the Board, for assessment of mental illness of the

appellant. He further stated that the team examined the

appellant especially in respect of his mental state. In

course of such examination they found the appellant to

be suffering from psychotic illness, and continued his

previous treatment, and directed for follow of action.

This witness was questioned by the Court itself wherein

different symptoms shown by the appellant were stated

to by the witness. Answering to the court's query, the

witness stated that as per his assessment, he was of the

opinion that the appellant was able to understand the

consequences of his actions on 20.03.2021. This

witness assessed that the appellant has ability of

understanding the trial and decision in the Court.

However, P.W.15 further added that on 29.09.2018,

they were directed by the Court to examine the illness of

the appellant and to treat him. This witness further

stated that the medial team did not assess the

behavioural study of the appellant or his capability to

understand what he was doing as the same was not

within the scope of the enquiry. In the cross-

examination the witness stated that he found the

appellant to be suffering from mental illness. He further

stated that he could not assess whether such illness is

continuing since last 4-5 years.

16) P.W.16 has stated that the appellant was

admitted from 26.03.2016 to 11.05.2016 in the hospital.

On the second admission to the hospital, they found that

the appellant was suffering from Psychosis-N-O-S

(F-29). He in the cross-examination also stated that

during course of the treatment he found the appellant to

be incapable of understanding the consequences of his

actions.

17) Thus, it is apparent from the record that there

is enough material on record to be satisfied, prima facie,

that the appellant was suffering from mental illness at

the time of trial. In that fact situation, the operation of

Section 329 of the Code as well as Section 105 of the

Mental Healthcare Act come into play. In such a

situation, the Court should have followed the procedure

laid down under Section 329 of the Code read with

Section 105 of the Mental Healthcare Act. As the

learned Trial Judge has not followed the procedure

prescribed, the entire trial is vitiated, and hence, the

appeal has to be allowed.

18) It is also seen from the judgment passed by

the learned Additional Sessions Judge that she confined

herself only to decide whether on the date of the

incident the appellant was suffering from any mental

health issues. In fact, when such an issue is raised, the

Court has to apply its mind on two aspects, viz., whether

at the time of the trial, the appellant is suffering from

any mental illness (?), or is he in a fit mental condition

at the time of trial, so that he can understand the

proceeding and take steps to defend himself? The other

issue is that whether the appellant was mentally ill at

the time of the commission of the crime, and for that

reason he was not able to understand the consequences

of his actions. In the first situation, the provisions of

Section 329 and 330 of the Code and Section 105 of the

Mental Healthcare Act has to be resorted to, and the

court of Sessions should first make an enquiry and try

the issue of mental illness of the appellant first, and if

she is satisfied, then she should refer the matter to a

psychiatrist or to a clinical psychologist, and if it is found

that the appellant is suffering from any mental illness,

the procedure laid down under Sub-Section (2) of

Section 329 of the Code should be followed. In this case

that has not been done by the learned Additional

Sessions Judge. She has not examined this aspect and

proceeded with the criminal trial in the line of the

provisions of Section 329 of the Code as well as Section

105 of the Mental Healthcare Act. She has also not

discussed the evidence of the very important witness,

i.e., P.W.15 and the effect of Exhibit A-38, wherein the

Medical Board has clearly stated that the appellant is

suffering from "schizophrenia", but he is showing

symptoms of improvement on treatment.

19) In that view of the matter, we are of the

opinion that the matter should be reconsidered by the

learned trial judge from the stage when it was first

brought to her notice that the appellant is suffering from

mental illness.

20) In the result, the appeal is allowed. The

judgment of conviction and death sentence are hereby

set aside. The death reference is answered accordingly.

The matter is remanded back to the court of learned

Additional Sessions Judge, Tehri Garhwal to re-hear the

matter by following the observations made by us in the

preceding paragraphs of this judgment.

___________________________ SANJAYA KUMAR MISHRA, A.C.J.

_____________________ RAMESH CHANDRA KHULBE, J.

Dt: 10th MAY, 2022 Negi