Judgment Case ID: 3655

Judgment:
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. 135/75). 241 S.K. Sinha	 for the Appellant. V.P. 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 R.I. 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 1458SCI/76 242 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: 1.18th 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. P.B. 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. S.C. 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 e.g. 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 U.P. (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. P.C.p. 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 H.S. 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. & M.c. 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 S.K. 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. P.B.R. 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 U.P. ; 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]