Johnson Joseph vs State of Kerala

Thomas P. Joseph, J.—Public Prosecutor takes notice for the Respondent.

Petitioner is accused in Crime No. 153 of 2008 of Kattoor Police Station and C.C. No. 1308 of 2008 of the Court of learned Judicial First Class Magistrate, Irinjalakkuda for offences punishable under Sections 323, 341 and 354 of the Indian Penal Code. After learned Magistrate framed charge against Petitioner for the said offences, it was brought to the notice of the learned Magistrate that Petitioner is suffering from unsoundness of mind and hence he is unable to make his defence. An enquiry into the matter was sought as required u/s 328 of the Code of Criminal Procedure (for short, "the Code"). Petitioner produced Annexures-(a) and (b), certificates to show that he is suffering from mental disability. The medical officer who issued Annexure-(a) was examined as C.W.1 and that certificate was marked as Ext. C1. Based on that material, learned Magistrate passed Annexure-(c), order dated 27.04.2011 observing that there is no material to show that Petitioner is continuing treatment, he is not suffering from any mental disorder and hence it is presumed that he is fit to stand for trial. That order is under challenge. Learned Counsel has submitted that neither has the procedure u/s 328 of the Code been followed nor evidence of C.W.1 insufficient to say, in the light of Annexures-(a) and (b) that Petitioner is capable of making a defence for himself. I have heard learned Public Prosecutor also.

Section 328 of the Code provides the procedure to be followed when the accused is shown to be of unsound mind. When it is so pointed out, 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 such medical officer shall be examined as a witness in Court. Under Sub-section 1A (incorporated by Act 5 of 2009 with effect from 31.12.2009) if the civil surgeon finds the accused is of unsound mind he shall refer the person to a Psychiatrist or to a clinical Psychologist for examination etc and such Psychiatrist or Clinical Psychologist shall to report to the Magistrate through the civil surgeon as to whether the accused is suffering from unsoundness of mind or not.

In the present case the above procedure has not been followed and instead, the medical officer who issued Annexure-(a), certificate produced by the Petitioner (marked in the court below as Ext-C1) was examined. Even the evidence of C.W.1 read over to me does not say whether Petitioner is capable of making his defence or not. C.W.1 has stated that Petitioner was under his treatment for sometime for Bipolar disorder but he discontinued the treatment.

In a case of this nature it was required to as certain the state of mind of Petitioner and decide whether he is capable of making his defence or not, in accordance with the statutory provision which has not seen done. Merely for the reason that Petitioner did not continue treatment there could be no inference that his illness has ceased to exist. In the circumstance, I am inclined to interfere.

Resultantly this criminal miscellaneous case is allowed. Annexure-(c), order dated 27.04.2011 in C.C. No. 1308 of 2008 of the Court of learned Judicial First Class Magistrate, Irinjalakkuda is quashed. Learned Magistrate is directed to follow the procedure prescribed u/s 328 of the Code and enter a finding whether Petitioner on account of the (alleged) mental illness is capable of making his defence or not. Further procedure in the case shall follow that finding.