ON Criminal Appeal No 383 of 1976
With Criminal Misc
Petitions Nos 62 and 380 of 1976 Appeal by Special Leave from the Judgment and Order dated 22 8 1975 of the Delhi High Court in Crl
Writ Peti tion No 13575
241 SK Sinha for the Appellant
VP Raman and Girish Chandra for the Re spondents
Tek Chand Chanana In person for the appli cant Intervener
The Judgment of the Court was delivered by BEG J
A petition under Article 226 of the Constitution was fled in the High Court of Delhi seeking a writ in the nature of Mandamus or any other appropriate Writ direction or order to restrain the respondents from carrying out the sentence of death passed against Amrit Bhushan Gupta a person condemned to death for having com mitted culpable homicide amounting to murder
The petition was flied by Smt
Shanti Devi purporting to act on behalf of her son Amrit Bhushan Gupta who was alleged to be insane
A Division Bench of the Delhi High Court passed the following order on it We have no doubt in our minds that if the petitioner is really insane as stated in the petition the appropriate authorities will take necessary action
This petition at this stage we feel does not justify invocation of the powers of this Court under Article 226 of the Constitution
Criminal Writ is dismissed
 Before the grant of special leave to the petitioner on 27th August 1976 an application for intervention in the matter had been filed by Tek Chand Chanana supported by an affidavit stating the following facts which have not been controverted Amrit Bhushan Gupta was sentenced to death for burning alive three innocent sleep ing children aged 14 8 and 5 years at Srini was Puri on the midnight of 21st June 1968 by the learned Dist
 Sessions Judge Delhi under Section 302 and 7 years RI section 307 for attempting to murder Tek Chand Chanana Peti tioner on 6th June 1969 with the remarks even the extreme penalty of death may appear too mild for the gruesome murder of three children by burning them alive  Delhi High Court confirmed the death sentence on 23rd September 1969
Amrit Bhushan Gupta s relatives made the plea of insanity to the High Court but the Hon ble High Court refused even to entertain this petition of the ac cused some dates are given below Writ petition dismissed on 20th July 1971  
Petition dismissed   20th August 1975
Supreme Court had dismissed the var ious petitions of Amrit Bhuahan Gupta noted below 17 1458SCI76 242 Special leave petition dismissed on 3rd April 1970
Petition dismissed on 12th Sept 1970
Petition dismissed on 30th April 1971
Writ Petition filed on 11 May 1971 was withdrawn on 2nd August 1976
Petition dismissed on 8th January 1976 Rashtrapati had also rejected several mercy petitions of the accused some dates are given below 1
10th August 1970
6th December 1970
8th November 1971
February 1972
Government of India had fixed various dates for execution details given below 118th December 1970
25th August 1975 and 19th December 1975
Amrit Bhushan Gupta and his relatives have been delay ing the matter on one excuse or the other
Their latest plea is nothing new
It is repetition of their modus operandi
The petitioner and his wife have been under constant torment since the day their three innocent child ren were gruesomely murdered in 1968 and the punishment awarded to the accused in 1969 is being postponed on the making of the accused
 This Court when granting special leave in this case was obviously not aware of the facts stated above which were concealed
Learned Counsel for the appellant when asked to state the question of law which called for the invocation of the jurisdiction of this Court under Article 136 of the Constitution could only submit that the provisions of Section 30 of the Prison ers Act 1900 should be applied to the petitioner
This section reads as follows 30
Lunatic Prisoners how to be dealt with 1 Where it appears to the State Government that any person detained or imprisoned under any order or sentence of any Court is of unsound mind the State Government may by a warrant setting forth the grounds of belief that the person is of unsound mind order his removal to a lunatic asylum or other place of safe custody within the State there to be kept and treated as the State Government directs during the remainder of the term for which he has been ordered or sentenced to be detained or imprisoned or if on the expira tion of that term it is certified by a medical officer that it is necessary for the safety of the prisoner or others that he should be further detained under medical care or treat ment then until he is discharged according to law
243 2 Where it appears to the State Gov ernment that the prisoner has become of sound mind the State Government shall by a warrant directed to the person having charge of the prisoner if still liable to be kept in custody remand him to the prison from which he was removed or to another prison within the State or if the prisoner is no longer liable to be kept in custody order him to be discharged
3 The provisions of Section 9 of the Luna tic Asylums Act 1858 shall apply to every person confined in a lunatic asylum under sub section 1 after the expiration of the term for which he was ordered or sentenced to be detained or imprisoned and the time during which a prisoner is confined in a lunatic asylum under that sub section shall be reck oned as part of the term of detention of imprisonment which he may have been ordered or sentenced by the Court to undergo
4 In any case in which the State Government is competent under sub section 1 to order the removal of a prisoner to a lunatic asylum or other place of safe custody within the State the State Government may order his removal to any such asylum or place within any other State or within any part of India to Which this Act does not extend by agree ment with the State Government of such other State and the provisions of this section respecting the custody detention remand and discharge of a prisoner  removed under sub section 1 shall so far as they can be made applicable apply to a prisoner removed under this sub section Thus at the very outset the section invoked relates to the powers of the State Government
It has nothing to do with powers of Courts
It only regulates the place and manner of the confinement of a person who appears to be a lunatic when his detention or imprisonment  is either during the trial or during the period when after the sentence he is undergoing imprisonment
In the case of a person condemned to death no question of keeping him in prison would arise except for the period elapsing between the passing of the sentence of death and its execution
A special provision for a person sentenced to death is to be found in Section 30 of the  which lays down 30
Prisoners under sentence of death 1 Every prisoner under sentence of death shall immediately on his arrival in the prison after sentence be searched by or by order of the Jailor and all articles shall be taken from him which the Jailor deems it dangerous or inexpediem to leave in his possession
2 Every such prisoner shall be con fined in a cell apart from all other pris oners and shall be placed by day and by night under the charge of a guard
 244 The whole objection of the proceedings in the High Court and now before us seems to be to delay execution of the sentence of death passed upon the appellant
In view of the number of times the appellant has unsuccessfully ap plied there can be little doubt that the powers of the High Court and of this Court ought not to have been invoked again
The repeated applications constitute a gross abuse of the processes of Court of which we would have taken more serious notice if we were not disposed to make some allow ance for the lapses of those who possibly out of misguided zeal or for some other reason may be labouring under the belief that they were helping an unfortunate individual desperately struggling for his life which deserves to be preserved
A bench of this Court 100 was persuaded to pass orders for observation of the convict and obtaining certificates of experts on the mental condition of the convict
Dr PB Buckshey Medical Superintendent and Senior Psychiatrist Hospital for Mental Diseases Shahdata Delhi certified as follows After careful consideration of the entire mental state of the accused including his behaviour I am of opinion that Shri Amrit Bhushan Gupta is a person of unsound mind suffering from Schizophrenia
Schizophrenia is a basically incurable type of insanity characterised by remissions and relapses at varying intervals
Shri Gupta was also severely and over whelmingly depressed and appeared to have lost interest in life Dr SC Malik Assistant Professor of Psychiatry G B Pant Hospital New Delhi gave a more detailed certificate as follows Amrit Bhushan Gupta remained mute throughout the ten days period of observation
He however started communicating to me through writing on 3rd day of encounter
He exhibits gross disturbance in thinking and his emotion al life appears to be disorganised
He is suffering from delusion that he is the incarnation of Christ and that I come to his kingdom or Palace 
He does not mutter to himself but at times keeps on staring vacantly in space
He is unable to write coherent meaningful sentences
He coins new words and when asked to explain he says it is Technologem of myself as CHRIST 
He also had hallucinations eg that Russian planes are shooting his Bunkers and that I should be helping him to drive them away
He exhibited depressive and suicidal I tendencies towards later period of my observation period and broke off all communication as I did not give him potassium Cyanide Poison  so that he Christ may go back to his Kingdom
In my opinion he is suffering from SCHIZO PHRENIA  Chronic which is a serious mental derangement
He is thus considered to be of unsound mind under the Indian Lunacy Act
 245 We have not even got any appeal from a conviction and sentence before us
We assume that at the time of the trial of the appellant he was given proper legal aid and assistance and that he did not suffer from legal insanity either during his trial or at the time of the commission of the offence
Insanity to be recognised as an exception to criminal liability must be such as to disable an accused person from knowing the character of the act he was commit ting when he commits a criminal act
Section 84 of the Indian Penal Code contains a principle which was laid down in England in the form of Macnaughten Rules
The section provides 84
Nothing is an offence which is done by a person who at the time of doing it by reason of unsoundness of mind is incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law
 If at the time of the commission of the offence the appellant knew the nature of the act he was committing as we assume he did he could not be absolved of responsibility for the grave offence of murder
A Constitution Bench of this Court has upheld the Constitutional validity of the death penalty in Jagmohan Singh vs The State of UP 1
We have to assume that the appellant was rightly convicted because he knew the nature Of his acts when he committed the offences with which he was charged
The legality or cor rectness of the sentence of death passed upon him cannot be questioned before us now
So far as the prerogative power of granting a pardon or of remitting the sentence is con cerned it lies elsewhere
We cannot even examine the facts of the case in the proceedings now before us and make any recommendation or reduce the sentence to one of life impris onment
The contention which has been pressed before us with some vehemence by learned Counsel for the appellant is that a convicted person who becomes insane after his convic tion and sentence cannot be executed at all at least until he regains sanity
In support of this contention learned Counsel has quoted the following passage from Hale s Pleas of the Crown Vol
I p 33 If a man in his sound memory commits a capital offence and before his arraignment he becomes absolutely mad he ought not by law to be arraigned during such his phrenzy but be remitted to prison until that incapacity be removed the reason is because he cannot advisedly plead to the indictment and this holds as well in cases of treason as felony even the delinquent in his sound mind were examined and confessed the offence before his arraignment and this appears by the Statute of 33 H 8 Cap 20 which enacted a trial in case of treason after examination in the absence of the party but this statute stands repealed by the statute of 1 and 2 Phil  Mr cap
10 cv
PCp 6 And if such person after his plea and before his trial become of non sane memory he 1   0  246 shall not be tried or if after his trial he becomes of non sane memory he shah not receive judgment or if after judgment he becomes of non sane memory his execution shall be spared for were he of sound memory he might allege somewhat in stay of judgment or execu tion
He also cited a passage from Coke s Insti tutes Vol
III p 6 which runs as follows It was further provided by the said act of 33 HS that if a man attained of treason became mad that notwithstanding he should be executed which cruel and inhuman law lived not long but was repelled for in that point also it was against the common law because by intendment of law the execution of the offender is for example ut poena ad paucos metus and omnes perveniat as before is said but so it is not when a mad man is executed but should be a miserable spectacle both against law and of extreme inhumanity and cruelty and can be no example to others
The following passage from Blackstone s Com mentaries on the Laws England VoL IV page 18 and 19 was also placed before us  The second case of a deficiency in will which excuses from the guilt of crimes arises also from a defective or vitiated understanding viz in an idiot or a lunatic
For the rule of law as to the latter which may easily be adapted also to the former is that furiosus furore solum punitur 
In criminal cases therefore idiots and lunatics are not chargeable for their own acts if committed when under these incapacities no not even for treason itself
Also if a man in his sound mind  commits an offence and before arraignment for it he becomes mad he ought not to be called on to plead to it because he is unable to do so  with that advice and caution that he ought
And if after he has pleaded the prisoner becomes mad he shall not be tried for how can he make his defence  If after he be tried and found guilty he loses his senses before judgment judgment shall not be pronounced and if after judgment he becomes of non sane memory execution shall be stayed for parad venture says the humanity of the English law had the prisoner been of sound memory he might have alleged something in stay of judg ment or execution
Indeed in the bloody reign of Henry the Eighth a statute was made which enacted that if a person being compos roentis should commit high treason and after fall into madness he might be tried in his absence and should suffer death as if h6 were of perfect memory
But this savage and inhuman law was repealed by the statute 1  2 Ph  Mc 10
For as is observed by Sir Edward Coke the execution of an offender is for example ut poena ad paucos metus ad omnes perveniat but so it is not a miserable spectable both against law and of extreme inhumanity and cruelty and can be of no example to others
247 A passage from a modern work An Introduction to Criminal Law by Rupert Cross 1959 p 67 was also read
It reads as follows In conclusion it may be observed that there are two other periods in the history of a person charged with a crime at which his sanity may be relevant
First although there may be no doubt that he was sane when he did the act charged he may be too insane to stand a trial in which case he will be detained during the Queen s pleasure under the Crimi nal Lunatics Act 1800 and 1883 pending his recovery
Secondly if he becomes insane after sentence of death he cannot be hanged until he has recovered
In each of these cases
the question of sanity is entirely a medical question of fact and is in no way dependent on the principles laid down in M Naghten s case
The rule that insanity at the time of the criminal act should be a defence is attributable to the fact that the idea of punishing a man for that which was due to his misfortune is revolting to the moral sense of most of the community
The rule that the accused must be fit to plead is based on the undesirability of trying someone who is unable to conduct his defence or give instructions on the subject
The basis of the rule that an insane person should not be executed is less clear
Occasionally the rule is said to be founded on theological grounds
A man should not be deprived of the possibility of a sane approach to his last hours
Sometimes the rule is said to be based on the fact that condemned men must not be denied the opportu nity of showing cause by why they should not be reprieved
Shri SK Sinha learned Counsel for the appellant has industriously collected a number of statements of the position in English law from the abovementioned and other works of several authorities such as Theobald on Lunacy p 254 and Kenny s Criminal Law p 74
On the other hand learned Additional Solicitor General has relied on the following statement of a modern point of view contained in a book by Mr Nigel Walker on Crime and Insanity in England Vol
I The Historical Perspective at p 213 214 Home Secretaries have been even more cautious in offering justifications for the practice of reprieving the certifiably insane or the mentally abnormal
Shortt though he cited Coke Hale Hawkins Blackstone Hawles and Stephen to prove that he was bound by the common law refrained from dwelling on their explanations of it
which are as we have seen far from impressive
The Atkin Committee being lawyers were more respectful to the institutional writers and argued that many sic of the reasons given for the merciful view of the common law continue to have force even under modern conditions
Everyone would revolt from dragging a gibber ing maniac to the gallows 
If 248 they had reflected they would Surely have conceded that modern conditions  greatly weakened two out of the three traditional reasons
The abolition of public executions made Coke s argument irrelevant as well as illogical and Hale s argument that if sane the condemned man might be able to produce a sound reason why he should not be hanged was greatly weakened now that the condemned man s interests were so well looked after by his lawyerS
As for Hawles  argument that an insane man was spiritually unready for the next world which not even Hawles regarded as the main objection were the Committee such devout Christians that they set store by it  Equally odd was their remark that everyone would revolt from dragging a gibbering maniac to the gallows  which sounded as if it was meant as an endorsement of one or more of the traditional justifications but if so could hardly have been more unfortunately phrased
Why should it be more revolting to hang a maniac  than a woman a seventeen year old boy or a decrepit old man  Must the maniac be gibbering  before it becomes revolting  A more logical justification was sug gested by Lord Hewart who opposed Lord Darling s attempt to legislate on the lines recommended by the Atkin Committee see Chap ter 6
Lord Hewart suggested that the medi cal inquiry should be concerned only with a single simple question If this condemned person is now hanged is there any reason to suppose from the state of his mind that he will not understand why he is being hanged   Although this Suggestion would have appealed to Covarrubias it had little attraction either for the Home Office or for humanitar ians in general for it was clearly intended to
reduce the number of cases in which the inquiry led to a reprieve
Nevertheless given certain assumptions about the purpose of the death penalty it was at least more logical than the traditional justifications which the Atkin Committee had so piously
repeated
If as Covarrubias and Hewart no doubt believed the primary aim of a penalty was retributive punishment it could well be argued that the penalty would achieve its aim only if the offender understood why it was being imposed
This argument is not open however to someone who believes that the primary aim of a penalty such as hanging is the protection of society by deterrence or elimination
The Atkin Committee would have been more realistic if they had contented themselves with the obser vation that for at least four hundred years it had been accepted that common law forbade the execution of a mad man although the institutional writers  explanations were obviously speculative and odd and that since 1884 certifiable insanity had been accepted as the modern equivalent of madness 
Any fur ther attempt to justify the practice would have involved them in one sort of difficulty or another
as Lord Goddard was to argue to the Gowers Commission
249 Interesting as the statements on and origins of the Common Law rules on the subject in England against the execution of an insane person may be we in this country are gov erned entirely by our statute law on such a matter
The Courts have no power to prohibit the carrying out of a sentence of death legally passed upon an accused person on the ground either that there is some rule in the Common Law of England against the execution of an insane person sen tenced to death or some theological religious or moral objection to it
Our statute law on the subject is based entirely on secular considerations which place the protec tion and welfare of society in the forefront
What the statute law does not prohibit or enjoin cannot be enforced by means of a writ of Mandamus under Article 226 of the Constitution so as to set at naught a duly passed sentence of a Court of justice
The question whether on that facts and circumstances of a particular ease a convict alleged to have became insane appears to be so dangerous that he must not be let loose upon society lest he commits similar crimes against other innocent persons when released or because of his anteced ents and character or for some other reason he deserves a different treatment are matters for other authorities to consider after a Court has duly passed its sentence
As we have already indicated even the circumstances in which the appellant committed the murders of which he was convicted are not before us
As the High Court rightly observed the authorities concerned are expected to look into matters which lie within their powers
And as the President of India has already rejected the appellant s mercy petitions we presume that all relevant facts have received due consid eration in appropriate quarters
We think that the application to the High Court and the special leave petition to this
Court in the circumstances mentioned above were misconceived
Accordingly we dismiss this appeal
We also dismiss Criminal Miscellaneous Petition No 62 of 1976 an application for summoning of the original re cord as it could be of no use but we allow Criminal Mis cellaneous Petition No 380 of 1976 the application for intervention whose contents we have quoted above
Stay of execution order is vacated
PBR Appeal dis missed


Summary:
A petition under article 226 of the Constitution was filed in the High Court on behalf of the
appellant who was sen tenced to death praying that since the appellant was insane the State should be restrained from carrying out the sentence
The High Court dismissed the petition holding that if the appellant were really insane the appropriate authorities would take necessary action
In appeal to this Court it was contended that convicted person who became insane after conviction and sentence could not be executed until he regained sanity
Dismissing the appeal HELD 1 a Courts have no power to prohibit the carrying out of a sentence of death legally passed upon an accused person on the ground either that there is some rule in the common law of England against the execution of an insane person sentenced to death or for some theological religions or moral objection to it
Our statute law on the subject is based entirely on secular considerations which place the protection and welfare of society in the fore front
249 B b What the statute law does not prohibit or enjoin cannot be enforced by means of a writ of mandamus under article 226 of the Constitution so as to set at naught a duly passed sentence of a court of justice
249 C 2 a Section 30 of the Prisoners Act 1900 has nothing to do with the powers of courts
It only regulates the place and manner of confinement of a person who appears to be a lunatic when his detention or imprisonment is either during the trial or during the period when after the sentence he is undergoing imprisonment
In the case of a person condemned to death no question of keeping him in prison would arise except for the period elapsing between the passing of the sentence of death and its execution
243 F b Insanity to be recognised as an exception to crimi nal liability must be such as to disable an accused person from knowing the character of the act he was committing when he commits a criminal act
If at the time of the commis sion of the offence the appellant knew the nature of the act he was committing he could not be absolved of responsi bility for the grave offence of murder
245 B D Jagmohan Singh vs The State of UP  referred to
In the instant case the whole object
of the proceed ings in the High Court and before this Court seems to be to delay execution of the sentence
In view of the number of times the appellant had unsuccessfully applied the powers of the High Court and of this Court ought not to have been invoked again
244 A