Vaisakh vs State Of Kerala

Dr. Kauser Edappagath, J

Annexure-6 order passed by the Special Judge, Fast Track Special Court, Koyilandy (for short 'the court below') in S.C.No.627/2018 is under challenge in this Crl.M.C.

The petitioner is the accused in S.C.No.627/2018 on the file of the court below. He is represented by his father as he is suffering from mental disability.

The petitioner faces trial for the offence under Section 9(m) read with Section 10 of PoCSO Act. The trial commenced and the evidence in the case is over. The case was posted for questioning under Section 313 of the Cr.P.C. At that juncture, the petitioner filed a petition as C.M.P.No.449/2021 invoking Section 329 of the Cr.P.C. Accordingly, an enquiry was conducted by the court below under Section 329 of the Cr.P.C. and entered into a finding that the petitioner is incapable of entering defence due to his mental retardation as provided under Section 329(2) of the Cr.P.C. Thereafter, the court below invoking Section 330(3)(b) of the Cr.P.C. passed the impugned order to send the petitioner to Pratheeksha Bhavan, Thrikkannapuram, Thavannur, Malappuram for rehabilitation. The said part of the order directing to send the petitioner to the Pratheeksha Bhavan rehabilitation centre is under challenge in this Crl.M.C.

I have heard Sri.Sharan Shahier, the learned counsel for the petitioner and Sri.M.P.Prasanth, the learned Public Prosecutor for the respondent.

The learned counsel for the petitioner vehemently argued that the court below instead of sending the petitioner to a rehabilitation centre ought to have released him on bail and handed over the custody to his parents. The counsel further submitted that the petitioner's stay at the rehabilitation centre would only aggravate his mental illness. Annexure-5 would show that the parents of the petitioner filed a petition as C.M.P.No.79/2022 to release the petitioner into their custody.

Section 330 of the Cr.P.C. deals with release of person of unsound mind pending investigation or trial. Sub-section (1) of Section 330 of the Cr.P.C. mandates that whenever a person if found under Section 328 or Section 329 of the Cr.P.C. to be incapable of entering defence by reason of unsoundness of mind or mental retardation, the Magistrate or Court, as the case may be, shall, whether the case is one in which bail may be taken or not, order release of such person on bail. The proviso to the said sub-section says that, in a case where the accused is suffering from unsoundness of mind or mental retardation which does not mandate in-patient treatment, a friend or relative must undertake to obtain regular out-patient psychiatric treatment from the nearest medical facility and to prevent from doing injury to himself or to any other person. The word used in sub-section (1) is 'shall'. The parents of the petitioner has filed a petition to release the petitioner on bail. They have also stated that they are ready to take care of the petitioner and provide him necessary treatment. They have also undertaken that they would take necessary steps to prevent the petitioner from doing injury to himself or to any other person. In these circumstances, I am of the view that the court below instead of invoking Section 330(3) (b) of the Cr.P.C. ought to have invoked sub-section (1) of Section 330 of the Cr.P.C.

For the reasons stated above, I am of the view that the petitioner can be released on bail to the custody of his parents. Hence, the impugned order to the extent of ordering to transfer the petitioner to Pratheeksha Bhavan, Thrikkannapuram, Thavannur, Malappuram for rehabilitation stands set aside. Annexure-5 petition stands allowed. The petitioner shall be released to the custody of the parents of the petitioner on bail on condition that the parents of the petitioner shall execute a bond for Rs.25,000/- (Rupees twenty five thousand only) each with two solvent sureties for the like sum each to the satisfaction of the court below. The parents of the petitioner shall provide adequate medical treatment to the petitioner. They shall also ensure that the petitioner does not cause injury to himself or others.

This Crl.M.C. is disposed of as above.