Ram Kumar Singh vs State of U.P.

Hon''ble Vinay Kumar Mathur, J.—The instant criminal revision has been preferred by the accused-revisionist against the order dated 27.8.2009 passed by Additional Sessions Judge, Court No.16, Kanpur Nagar in Sessions Trial No. 847 of 2006 under Sections 302 and 506 IPC. The brief facts leading to the filing of the instant revision, are that accused-revisionist moved an application at the stage when the trial was fixed for recording statement of accused u/s 313 Cr.P.C., stating therein that he was of unsound mind and unable to understand the questions put to him during the proceedings u/s 313 Cr.P.C. The Court ordered for the examination of the accused-revisionist by the doctor of the District Jail, who found the revisionist to be of unsound mind. The revisionist prayed that he should be given benefit of provisions of Section 328 Cr.P.C. Thereafter the revisionist was examined by a Board of Doctors under the supervision of CMO, Kanpur Nagar. The Board recommended that the revisionist be sent for examination in Mental Hospital, Varanasi for expert opinion. The revisionist was sent to Mental Hospital, Varanasi, where he was declared to be of sound mind and was sent back to the District Jail, Kanpur Nagar. The revisionist moved an application 51-Kha dated 07.07.09 praying that the proceeding of the trial be stayed and the doctor who examined the accused-revisionist, be summoned for examination.

From the perusal of the record, it appears that an application on similar grounds was moved on 18.3.2009 which was rejected on 22,7,2009 by trial court and Criminal Revision No. 3045 of 2009, Ram Kumar Singh Vs. State was filed by the revisionist against this order.

This Court was pleased to dispose of the said revision with a direction to the Additional District and Sessions Judge, Court No. 16, Kanpur Nagar to consider and decide the application dated 07.07.09 as expeditiously as possible in accordance with law after hearing the parties preferably within a period of 15 days form the date of presentation of the certified copy of the order before him. In compliance of the said direction, the impugned order has been passed whereby the learned Additional Sessions Judge has rejected the application dated 07.07.2009 and has ordered recording of the statement of accused-revisionist u/s 313 Cr.P.C.

Aggrieved by the order, the present revision has been preferred on the grounds that the learned trial court has committed manifest error of law in passing the impugned order against the revisionist which is based on surmises and conjectures. It has also been contended that the doctor, who examined the revisionist in Mental Hospital, Varanasi, ought to have been summoned and examined before passing the impugned order. Submission is that the trial court did not consider the medical examination reports regarding the mental status of the revisionist which were submitted by the jail doctor and the Medical Board held under the supervision of CMO and in fact there was no requirement of seeking any report from Mental Hospital, Varanasi.

I have heard learned counsel for the parties and have perused the record. Learned counsel for the revisionist has submitted that Section 328 Cr.P.C. is quite clear and the trial court was bound to summon and examine the doctor. Since the application for summoning the doctor for examination was rejected while passing the impugned order by the learned court below, therefore the impugned order has resulted in miscarriage of justice to the revisionist. Despite the fact that the declaration of revisionist of being of sound mind by the doctor of the Mental Hospital, Varanasi having not been tested through cross-examination and is not the final word, the trial court arbitrarily rejected the application and wrongly drew conclusion based on the opinion of the doctor without due verification or cross-check and in complete violation of the mandatory provision of Section 328 Cr.P.C.

Learned counsel for the revisionist has further submitted that the revisionist is not in a position to understand the questions put to him, therefore, he can not answer the questions which will be put to him u/s 313 Cr.P.C. and as such he will not be in a position to defend himself properly. The correct procedure is that the proceeding should be stayed and after cross-examination of the doctor, the trial court should decide and pass appropriate orders. As such, the impugned order is premature. Learned counsel for the revisionist has relied upon the judgment in the case of State of Karnataka Vs. Doragal Karnakappa, 1996 (1) Crimes 513 (DB), wherein it has been mentioned that mere receiving of a letter from the Superintendent of Hospital to the effect that the accused is capable of understanding the evidence is no compliance with provision of law.

Learned AGA and learned counsel for the informant have defended the impugned order and have submitted that the jail doctor and the panel of doctors at the district head quarter, who examined the revisionist-accused under the supervision of CMO, have found the applicant to be of unsound mind, but there opinion is not final since they are not the experts in the field. The opinion of the doctors, who examined the revisionist in Mental Hospital, Varanasi, is final and authentic and therefore, the court below rightly relied upon the report and as a consequence thereof, rejected the application dated 07.07.09 on the ground that as per report of the doctor of the Mental Hospital, Varanasi, the revisionist was found mentally fit and was not suffering form any mental disease. He has further contended that the requirement of examination of the doctor is mandatory only in cases where a patient is found to be of unsound mind but in the instant case the revisionist has not been found to be suffering from any mental disease, therefore, the examination of the doctor was not required.

To understand the legal position correctly the provision of sub-section (1) of Section 328 Cr.P.C. is being quoted below.

Procedure in case of accused being lunatic.-- (1) When a Magistrate holding an inquiry has reason to believe that the person against whom the inquiry is being 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 officer as a witness and shall reduce the examination to writing.

It is clear that the provision which makes it mandatory for the Magistrate to examine the Civil Surgeon or other officer as witness who has examined the accused, will be applicable in relation to the examination conducted either by the Civil Surgeon (CMO) or by the other medical officer and does not talk about the examination of the doctor of the Mental Hospital.

In sub-section (1) A of Section 328 Cr.P.C. it has been provided that if the Civil Surgeon finds the accused to be of unsound mind, he shall refer such person to a psychiatric or clinical psychologist for care, treatment and prognosis of the condition who shall inform the Magistrate whether the accused is suffering from unsoundness of mind or mental retardation. The proviso 2 to Sub-Section 1 A says that if the accused is aggrieved by the information given by the psychiatric or clinical psychologist to the Magistrate, he may prefer an appeal before the Medical Board.

In view of the provision referred to above, I am of the view that the applicability of Section 328 Cr.P.C. is limited to inquiry conducted by the court of Magistrate. Instead of Section 328 Cr.P.C., the provisions of Section 329 Cr.P.C. will apply in the matter which are applicable to trial before a Magistrate or a court of Sessions. Undisputedly the controversy leading to the filing of the instant criminal revision arose out of the proceedings of the sessions trial. On this ground also the provisions of Section 328 Cr.P.C. will not be applicable.

The provisions of Section 329 Cr.P.C. provide that if it appears to the court that the accused is of unsound mind and consequently incapable of making his defence, the court at the first instance try the facts of such unsoundness and incapacity and if the court after considering such medical and other evidence as may be produced before him, is satisfied of the fact, it shall record a finding to that effect and postpone the further proceedings. In newly inserted Clause 1A, it has been provided that if during the trial, the court finds the accused to be of unsound mind, it shall refer such person to a psychiatric or clinical psychologist for care and treatment and the psychiatric or clinical psychologist shall report to the court whether the accused is suffering form unsoundness of mind. Like 328 Cr.P.C. identical provision has been provided u/s 329 Cr.P.C. for appeal, in case the accused is aggrieved by the opinion given by the psychiatric or clinical psychologist before the Medical Board. Under Sub-section (2) further action, which has to be taken by the court after receiving the information that the persons is of unsound mind, has been provided. From the perusal of Section 329 Cr.P.C. It is clear that no provision for mandatory examination of the surgeon or the other medical officer as a witness finds place therein.

In view of the peculiar circumstances, the case law cited by learned counsel for the revisionist does not help the revisionist.

In view of the discussions hereinbefore, I am of the view that the impugned order is not legally correct because learned trial court has decided the application of the revisionist in accordance with the provisions of the Section 328 Cr.P.C. which are inapplicable. Therefore, due to significant procedural difference between the provisions of Sections 328 and 329 Cr.P.C. the trial court should decide the application dated 07.07.2009 afresh after affording opportunity of hearing to both the parties expeditiously as far as possible within 15 days from the date of production of certified copy of this order.

As a result of the discussion, the revision is allowed and the impugned order dated 27.8.2009 passed by Additional, District & Sessions Judge (Court No.16), Kanpur Nagar, is set aside. Stay order, if any, stands vacated. No orders as to costs.