Gurjit Singh vs State of Punjab

Kulwant Singh Tiwana, J.—Gurjit Singh alias; Sainti son of Atma Singh, resident of Nabha, appellant was tried and convicted u/s 302, Penal Code, for committing the murder of Nand Ram at Nabha on 11th of Aug. 1983 at 4 10 p.m. He has been sentenced by the learned Sessions Judge, Patiala to undergo life imprisonment and pay a fine of Rs. 500/- for this offence. In default of payment of fine he has been further directed to undergo rigorous imprisonment for one year. The appellant has contested the order of conviction and sentence through this appeal.

During the course of hearing of this appeal, the question which came to the fore was whether in the face of the plea of insanity raised by the appellant, the learned trial Court acted in violation of Section 329 of the Criminal P.C. 1973, hereinafter referred as the Code, by not trying the fact of unsoundness of mind and incapacity of the appellant to make his defence before the start of the actual trial.

As this is a preliminary question and in case of its determination in favour of non-compliance of the provisions of Section 329 of the Code, the trial is to vitiate, we need not refer to the evidence, in the case, on merits. It may, however, be noted that the appellant has led evidence in defence that he was mentally unsound prior to the commission of the offence and also subsequent thereto. To properly appreciate the case, the steps taken by the learned trial Judge and the orders made having a bearing on the plea of insanity and its decision, are to be referred in detail.

The order dated 19th of Dec. 1983 on the trial Court file reveals that the counsel for the appellant, who was appointed on State expense, made an application for medical examination of the appellant, as due to his insanity be could not give him (the counsel), the instructions. On 21st of Jan. 1984, the Public Prosecutor filed a reply to the application made on behalf of the appellant that he be got medically examined. The learned trial Court on that date directed the appellant to produce evidence to prove his insanity. On 4th of Feb. 1984, Dr. Gurmeet Singh, Professor and Head of the Psychiatry Department, Rajendra Hospital, Patiala, summoned by the appellant, appeared and stated that he could not give his opinion unless the appellant was admitted as an indoor patient for about a week. The learned trial Judge directed the jail authorities to arrange for the admission of the appellant as suggested by Dr. Gurrneet Singh. After that the report of Dr. Gurmeet Singh was received in court and an ad interim order dated 13th of Mar. 1984, which contains the extract of the opinion of Dr. Gurmeet Singh, was passed, which is :�

The accused is facing trial in a case u/s 302, IPC. On 19-12-1983, the accused filed an application through his counsel Shri D. P. Singh Anand, Advocate, Patiala for referring him to Psychiatry Department to determine that he was suffering from insanity. He attached with the application some photostat copies regarding his illness. On that application, he was referred to the Psychiatry Department of Rajendra Hospital, Patiala, from where a report has been received to the following effect:

Shri Gurjit Singh son of Shri Atma Singh, undertrial was referred to Psychiatry Department from Central Jail, Patiala and was admitted for observation and mental examination from 11-2-1984 to 20-2-1984. He was examined by Dr. Gurmeet Singh, the Registrar, Dr. Paramjit Singh, Dr. S. R. Tiwasi and Psychological testing done by Miss Monika Mehra.

I am of the opinion that he is suffering from Chronic paranoid schizophrenia, a form of chronic mental illness which is characterised by delusions of persecution, hallucinations and inappropriate emotional reaction and impulsive behaviour. During his admission the patient was very suspicious, evasive and uncooperative in giving details about himself except that people are against him and doing things to harass or harm him.

He requires long term psychiatric treatment preferably in mental Hospital because he may again show impulsive or aggressive behaviour in the future.

After that the appellant was sent to Mental Hospital, Amritsar, under orders of the learned trial Judge. The report of Dr. R. M. Sharma of Mental Hospital, Amritsar, was received in court vide endorsement dated 20th of June, 1984. The conclusion of Dr. R. M. Sharma about the condition of the appellant was:

In the light of the above findings, I am of the opinion that in spite of some psychotic features evident of psychological testing and clinical assessment, Shri Gurjeet Singh alias Santi is sane enough and fit to stand trial in the court of law.

The learned trial Judge referring to the report of the Mental Hospital, Amritsar, passed orders on 25th of July, 1984 as:

Present: P. P. for the State. Accused in custody with counsel. On 13-3-1984 the accused filed an application through his counsel to the effect that he is insane and is incapable for making his defence. He was sent to Rajendra Hospital, Patiala. The Medical Superintendent, Rajendra Hospital, Patiala, reported that the Expert opinion be obtained from Mental Hospital, Amritsar. Then the accused was sent to Mental Hospital, Amritsar. A report has been received to the effect that the accused is sane enough and fit to stand trial in the court of law. In view of these circumstances it is ordered that further proceedings be taken. It be called again for hearing arguments on charge.

After this order charge was framed against the appellant on that very date 25th of July, 1984 and his trial u/s 302, IPC for the murder of Nand Ram was commenced. The trial ultimately ended in conviction of the appellant giving rise to this appeal.

The question involved in this case is preliminary and purely legal, that is, whether the procedure adopted by the learned trial Judge on 25th of July, 1984 and afterwards is in accordance with law. There are two sections in the Code prescribing procedure for enquiry and trial of lunatics or persons of unsound mind. One is Section 328, which deals with the Magistrates holding enquiry. In this case Section 328 is not attracted as no one raised the question of insanity before the Committing Magistrate when he committed the case for trial to the Court of Session. It appears that the Committing Magistrate did not come to know of it. Although some help was sought to be taken by the learned Counsel for the appellant u/s 328 of the Code to urge that the learned trial Judge did not examine the doctor certifying the mental condition of the appellant to understand the proceedings, but we do not think if this section is attracted, as the case had gone to the trial beyond the stage of the enquiry, as is the case in the cases exclusively triable by the Court of Session.

The second provision is Section 329 of the Code, which is as under:

(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.

Section 329 of the Code deals with the trial of the cases and is not exclusively limited for application to the Magistrates, as is the case of Section 328 of the Code. Section 329 of the Code is equivalent to Section 465 of the Criminal P.C. 1898, hereinafter referred as the old Code. Section 465 of the old Code was as under :�

If any person committed for trial before a Court of Session or a High Court appears to the Court at his trial to be of unsound mind and consequently incapable of making his defence, the jury, or the Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the jury or Court, as the case may be, is satisfied of the fact, the judge shall record a finding to that effect and shall postpone further proceedings in the case and the jury, if any, shall be discharged.

(2). The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Court.

This section of the old Code was amended in 1973, by substituting the words, "Court of Session and the High Court" by only word, that is, ''Court''. This word ''Court'' is very comprehensive as used in Section 329 of the Code and also includes a Magistrate.

The mandate of Section 329 of the Code is that when the plea of insanity is raised before a Court it shall try the fact of unsoundness of mind and incapacity of the accused in the first instance. Sub-section (2) of this section makes, the preliminary trial, of this fact, a part of the trial before the Court. Although Section 465 of the old Code contained the same provision of the fact of the unsoundness of the mind of the accused and his incapacity to make defence at first, the Law Commission at the time of amendment of the Code re-emphasised this. At the time the Code was amended in the year 1973, in the Objects and Reasons for bringing legislation, the report of the Law Commission was referred as:

Clause 329 (original Clause 337).- The clause has been so amended as to make it clear that in a trial before a Magistrate or Court of Session if the accused appears to be 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 of mind and incapacity; and if the Magistrate or Court is satisfied as to the unsoundness of mind or incapacity of the accused, he or it shall record a finding to that effect and shall postpone further proceedings in the case.

Cases decided u/s 465 of the old Code held that this section had two stages. For these stages case reported as State Vs. Kochan Chellayyan, can be referred. In para 9 of this judgment it was observed:

Section 465 contemplates two stages. The first stage laid down is that it must appear to the Judge that the accused placed on his trial was of unsound mind and incapable of making his defence. The next stage that was to follow when it appeared to the Judge that the accused was of unsound mind and, consequently incapable of making his defence, was that the fact of such unsoundness of mind and incapacity should be enquired into on the materials placed before the Court. Where it did not appear to the Judge that the accused was of unsound mind or that he was incapable of making his defence, it was not therefore necessary, much less was it incumbent upon the Judge, to adopt the procedure provided by the second part of the section, namely to hold an enquiry as to the unsoundness of mind of the accused placed on his trial, for the purpose of ascertaining whether he was incapable of making his defence.

When the Court is at the second stage, above-referred, to enquire into the fact of unsoundness of mind and consequent incapacity to make his defence, it is to ask for evidence. When the accused raised the plea of unsoundness of mind, the onus is on him to prove it. He is to lead evidence. If the opinion of the medical expert examining the accused does not favour him, he can lead other permissible evidence to prove his mental condition. The prosecution has a right to rebut the evidence led by the accused. The procedure for the trial of the fact of unsoundness of mind and consequent incapacity to make a defence by the accused postulates recording of evidence in support and in rebuttal of it. The statement of the doctor, who examines the accused and certifies the accused to be of unsound mind should be recorded as a witness. The accused cannot be permitted to get away from punishment by malingering unsoundness of mind. The party contesting such a plea has an inherent right to rebut it by evidence. After such evidence as may be examined by the court Section 329 of the Code again provides for performing three essential functions by it. The first is that such evidence has to be considered. The consideration is to be demonstrated by its appraisal on the record. The second essential is that the Court has to be satisfied of the fact, that is, the fact which is being tried first. After this satisfaction, the third element comes that a finding has to be recorded demonstrating the consideration of evidence and satisfaction about this fact The three elements cannot be judicially dealt with unless the evidence as may be led by the person raising the plea referred in Section 329 of the Code is dealt in the manner indicated. Such a provision is clearly in consonance with the principle of fair administration of justice. Any violation'' by a Court in not examining proper evidence for recording a finding as directed by Section 329 of the Code is to vitiate the trial, as a lunatic, insane or mentally unsound accused cannot understand the trial and appreciate the evidence against him and answer the charge because of his mental incapacity. Any trial of an unsound person is void.

Coming to the facts of the case we find that Dr. Gurmeet Singh in his report opined that the accused suffered from chronic paranoid schizophrenia. Dr. R. M. Sharma, however, in his report had stated that the accused was sane enough and fit to stand trial in the court of law. The learned trial Judge did not examine Dr. R. M. Sharma as a witness in court. He did not call upon the counsel for the accused, who had made an application, at the initial stage bringing to the notice of the Court the insanity of the accused, to lead evidence. It is regretable that the learned trial Judge did not hold an enquiry into the fact of unsoundness of mind of the accused and his consequent incapacity to make a defence as envisaged by Section 329 of the Code. The order dated 25th of July, 1984 passed by the learned trial Judge has been reproduced in para 5 of the judgment. In it the learned trial Judge only repeated the words of Dr. R. M. Sharma and did not comment on his opinion to record his satisfaction, which was a necessary requirement of this section. As a matter of fact we find that the learned trial Judge did not record any finding one way or the other regarding the mental condition of the appellant on 25th of July, 1984, on which he framed the charge and commenced the trial. The commencement of trial meant that the learned trial Judge had rejected the plea of insanity raised on behalf of the appellant without recording the medical evidence, or satisfying himself or recording a finding on the material placed before him. The learned trial Judge did not come to grips with the situation and has violated the provisions of Section 329 of the Code.

For the foregoing reasons, the trial stands vitiated. As a matter of fact, it is a void trial. The appeal is, therefore, accepted, the conviction and sentence of the appellant are set aside and the case is sent back to the learned trial Court for proceeding in accordance with law and the observations recorded above.

Surinder Singh J.

I agree.