CRR-1177-2011 [ 1 ] :::::::: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR-1177-2011 Date of decision:13.10.2011 Kulwinder Singh ...Petitioner Versus State of Haryana ...Respondent CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Jagjit Gill, Advocate, for the petitioner. Mr. Sagar Deswal, AAG, Haryana. ***** RAKESH KUMAR JAIN, J. The petitioner has challenged order dated 04.05.2011 passed by the learned Additional Sessions Judge, Sirsa by which his application filed under Section 328 of the Code of Criminal Procedure, 1973 [for short “Cr.P.C.”] has been disposed of. In brief, the petitioner is facing trail in a case registered vide FIR No.193 dated 19.10.2009, under Sections 498A and 325 of IPC at Police Station Sadar, Dabwali, District Sirsa. During the trial, the petitioner filed an application under Section 328 of the Cr.P.C. in which it was prayed that the petitioner is a person of unsound mind as he is suffering from various mental disorders and is incapable to make his defence. The medical certificate issued by the Psychiatry Department of the PGIMS, Rohtak was placed on record while praying that the trial of the case may be postponed. The said application has been disposed of by the learned Trial Court with the following observations: “Learned defence counsel has stated that the CRR-1177-2011 [ 2 ] :::::::: accused is of unsound mind, hence, he be discharged. Learned PP has stated that accused has to prove in evidence that he is of unsound mind and he cannot be discharged at this stage and he shall be given a chance to lead evidence being of unsound mind at appropriate stage. Hence, PWs are allowed to be examined. The witness present in the court are examined. To come up on 06.07.2011 for further proceedings.” Learned counsel for the petitioner has submitted that the petitioner was arrested on 02.11.2009 and is confined in District Jail, Sirsa. He has referred to orders Annexures P-3 and P-4 which have been issued by the Medical Officer, Jail Dispensary, Sirsa, according to which the petitioner is suffering from psychotic disorder and is under treatment of the Psychiatry Department of the PGIMS, Rohtak. It has been basically argued by learned counsel for the petitioner that since the application has been filed during the trial, therefore, in terms of Section(s) 328/329 of the Cr.P.C., an inquiry may be ordered to be conducted to ascertain the present status of the petitioner and thereafter it may be decided as to whether the petitioner is fit to stand for trial or not. In this regard, he has relied upon a Division Bench judgment of the Rajasthan High Court in the case of Gordhan Lal v. State of Rajasthan, 2004(4) R.C.R. (Criminal) 811, another Division Bench judgment of the same High Court in the case of Om Prakash alias Munna v. State of Rajasthan, 204(4) R.C.R. (Criminal) 638 and a Single Bench judgment of the Kerala High Court in the case of K.D.Ninan v. State of Karala, 2006(1) R.C.R.(Criminal) 257. In reply, learned State Counsel has submitted that the petitioner has been found to be an opium addict and is not suffering from any mental disorder, therefore, no inquiry is required to be conducted in this case. I have heard both the learned counsel for the parties and perused the available record with their able assistance. CRR-1177-2011 [ 3 ] :::::::: In this case, the FIR has been registered by Bichittar Singh who has alleged that his younger sister Kiranjot Kaur was married with Kulwinder Singh (petitioner herein) and the couple had a daughter, namely, Harman Kaur aged 5-6 years. The petitioner is alleged to have been treating his wife with cruelty while demanding dowry and had also caused injuries to her. During the course of trial, the petitioner moved an application under Section 328 of the Cr.P.C. for postponing it on the ground that he is a person of unsound mind and is incapable to make his defence. The said application has been disposed of by the learned Trial Court with the observation that the defence counsel has been asking for discharging the petitioner on the ground that he is of unsound mind. It was observed that the question of discharge would be considered at the relevant stage after the evidence is led by the parties. In the present revision petition, the primary argument raised by learned counsel for the petitioner is that if there is an application moved under Section 328 of the Cr.P.C. alongwith some prima facie proof about the unsoundness of the mind of the petitioner/accused, it is incumbent upon the Court to postpone the trial and ask for a medical report about his mental health. In order to appreciate the respective contentions raised by both the parties, it would be relevant to refer to Sections 328 and 329 of the Cr.P.C. As a matter of fact, Chapter XXV deals with an accused who is of unsound mind. Section 328 of the Cr.P.C. provides for procedure when the inquiry is pending and Section 329 of the Cr.P.C. relates to the trial. In this case, the application has been filed during the trial, therefore, Section 329 of the Cr.P.C. would be applicable, which reads as under: “329. Procedure in case of person of unsound mind tried before Court.-- (1) If at the trial of any person before a Magistrate or Court of Sessions, 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 CRR-1177-2011 [ 4 ] :::::::: 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. (1A) If during trial, the Magistrate or Court of Sessions, finds the accused to be of unsound mind, he or it shall refer such person to a psychiatrist or clinical psychologist for care and treatment, and the psychiatrist or clinical psychologist, as the case may be, shall report to the Magistrate or Court whether the accused is suffering from unsoundness of mind: (a) head of psychiatry unit in the nearest government hospital; and (b) a faculty member in psychiatry in the nearest medical college. (2) If such Magistrate or Court is informed that the person referred to in sub-section (1A) is a person of unsound mind, the Magistrate or Court shall further determine whether unsoundness of mind renders the accused incapable of entering defence and if the accused is found so incapable, the Magistrate or Court shall record a finding to that effect and shall examine the record of evidence produced by the prosecution and after hearing the advocate of the accused but without questioning the accused, if the Magistrate or Court finds that no prima facie case is made out against the accused, he or it shall, instead of postponing the trial, discharge the accused and deal with him in the manner provided under section 330: Provided that if the Magistrate or Court finds CRR-1177-2011 [ 5 ] :::::::: that a prima facie case is made out against the accused in respect of whom a finding of unsoundness of mind is arrived at, he shall postpone the trial for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused. (3) If the Magistrate or Court finds that a prima facie case is made out against the accused and he is incapable of entering defence by reason of mental retardation, he or it shall not hold the trial and order the accused to be dealt with in accordance with section 330.” According to the aforesaid provision, if it appears to the Magistrate or Court during trial that the accused is of unsound mind and is incapable of making his defence, at the first instance, the Magistrate or Court should try to ascertain the fact of such unsoundness and incapacity after considering medical and other evidence produced, record a finding and then either postpone or further proceed with the trial. In this regard, Section 329(1A) has been inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009) which provides that the Court is to refer such a person to a psychiatrist or clinical psychologist who would report to the Court about the mental status of the accused. The said provision also gives a right to the accused, who may be aggrieved by the report of the psychiatrist or clinical psychologist, to prefer an appeal before the Medical Board and ultimately if the Court finds that prima facie accused is incapable of entering defence by reason of mental retardation, the Court shall not hold the trial and order the accused to be dealt with in accordance with Section 330 of the Cr.P.C. In Om Prakash alias Munna's case (supra), it has been held that Section 329 Cr.P.C. provides three stages: firstly, it must appear to the Court that the accused was of unsound mind and incapable of making his defence; secondly, the Court is required to make the enquiry about unsoundness of mind of the accused, and thirdly, the Court has to record finding to the effect that the CRR-1177-2011 [ 6 ] :::::::: accused was of unsound mind and incapable of defending himself and stop further proceedings of the case. In the said case, the trial went up without mental check up of the accused which was held to be vitiated. In Gordhan Lal's case (supra), it was held that where the Court decides that the accused is of unsound mind and incapable of making his defence, it is mandatory to postpone the trial. In K.D.Ninan's case (supra), it was held that under Section 328(1) of the Cr.P.C., the Magistrate shall cause that person to be examined by the Civil Surgeon of the District or such other medical officer as the State Government may direct and after such examination, the doctor has to be examined and the Magistrate has to decide whether that person is fit to stand for trial or not. From the reading of the application and the impugned order, it appears that the learned Trial Court did not appreciate the cause shown by the petitioner/accused because the prayer made in the application is for postponing the trial, whereas the learned Trial Court had observed that the petitioner is praying for his discharge. On that premise, it was observed that he cannot be discharged at that stage without there being any evidence with regard to the unsoundness of the mind of the petitioner. Learned counsel for the petitioner has also submitted that the petitioner has been held to be suffering from psychotic disorder which may have caused because of overdose of narcotics, but it is submitted that there are different types of psychotic disorder including schizophrenia, schizoaffective disorder, schizophreniform disorder, delusional disorder, shared psychotic disorder, substance-induced psychotic disorder, psychotic disorder due to a medical condition and paraphrenia etc. The symptoms of a psychotic disorder vary from person to person and may change over time, but the major symptoms are hallucinations and delusions. The Court trying the petitioner/accused is not an expert of medical sciences and the word used by the Legislature in Section 329 of Cr.P.C. is not psychotic disorder but a person of “unsound mind” which relates to a person who is not responsible for one's action for mental illness or condition. CRR-1177-2011 [ 7 ] :::::::: In view of the facts and circumstances of this case, I am of the view that the learned Trial Court has committed an error of its jurisdiction in passing the impugned order whereby the application filed by the petitioner/accused has neither been allowed nor dismissed and even the provisions of Section 328/329 of Cr.P.C. have not been taken into consideration. Hence, the impugned order dated 04.05.2011 passed by the learned Trial Court is set aside and the matter is remanded back to the learned Trial Court to decide the application of the petitioner filed by him on 04.05.2011 under Section 328 of the Cr.P.C. in accordance with law, within one month from the date of receipt of certified copy of this order. October 13, 2011 (RAKESH KUMAR JAIN) vinod* JUDGE