IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 29TH MAY 2009 / 8TH JYAISHTA 1931 Crl.MC.No. 1746 of 2009() -------------------------------------- (CR.NO.845/2008 OF VATANAPPILLY POLICE STATION) PETITIONER(S): ACCUSED: ----------------------------------------- SATHEESAN,AGED 56 YEARS,KALLINGAL HOUSE, P.O.NEDUPUZHA,THRISSUR DISTRICT.(MENTALLY UNSOUND) REPRESENTED BY HIS WIFE SUBHA,W/O.SATHEESAN. BY ADV. MR.RAJIT RESPONDENT(S): --------------------------- STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. KAMAPPU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 1746 OF 2009 ------------------------------------------ Dated 29th May 2009 O R D E R This petition is filed by the accused in Crime 845/2008 of Vatanappilly police station in anticipation of an action by learned Magistrate, not in accordance with the procedure provided under Code of Criminal Procedure. According to the petitioner he is suffering from mental illness evidenced by Annexure-A certificate and when he surrenders before the learned Magistrate, Magistrate is bound to consider the application for bail as provided under Chapter XXV of Code of Criminal Procedure and a direction is to be issued as provided therein. 2. Learned counsel appearing for petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel appearing for petitioner is that as the case is under investigation stage, when the accused appears before the Magistrate, he will proceed against just like an ordinary accused and there is a likelihood of not CRMC 1746/09 2 proceeding as provided under Section 328 of Code of Criminal Procedure and therefore a direction is to be issued. 4. Chapter XXV of the Code of Criminal Procedure contains the provisions as to accused persons of unsound mind. Under Section 328, 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 of the civil surgeon of the district or such other medical officer as the State Government may direct and if the Magistrate is of the opinion that the said person referred is of unsound mind and consequently incapable of making his defence he shall record that finding and shall postpone further proceedings. Section 329 is the procedure to be complied at the stage of trial. Section 330 provides for release of persons of unsound mind pending investigation or trial. Under Sub section 1, whenever a person is found CRMC 1746/09 3 under section 328 or 329 to be of unsound and incapable of making his defence the Magistrate or the court may release him on sufficient security being given that he shall be properly taken care of and shall be prevented from doing injury to himself or to any other person, and for his appearance when required before the Magistrate or court or such officer as the Magistrate or court appoints in this behalf. Section 328 is the provision to be applied when the Magistrate is holding an inquiry and finds that there is reason to believe that the person against whom the enquiry is being held is of unsound mind. Section 329 applies to a case where at the time of trial, it appears to the Magistrate or court that the person facing trial is unsound mind. If Section 328 or 329 applies then Magistrate is bound to proceed under Section 330 of Code of Criminal Procedure. In this case the Magistrate is neither holding a trial or an inquiry. If so, Section 328 and 330 of Code of Criminal Procedure do not apply at this stage. I do not find any reason to hold that the Magistrate will not proceed in accordance with law. In CRMC 1746/09 4 such circumstances, I find no reason to give any direction as sought for. Petition dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.