The effect is to be recorded, and further

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The Code provides that if the accused is of unsound mind at the time of the inquiry or trial, and therefore, incapable of making his defence, the Magistrate or the Court (as the case may be), must ascertain on evidence, including medical evidence, whether, in fact, the accused is of unsound mind. If he is satisfied about the same, a finding to that effect is to be recorded, and further proceedings in the case are to be postponed.

If the accused is thus found to be of unsound mind, even if the case is non-bailable, he may be released on sufficient security being given that he shall be properly taken care of, and that he shall be prevented from doing injury to himself or to any other person, and for his appearance before the Court, whenever necessary.

If, however, the Magistrate feels that bail should not be taken in the particular case, or if sufficient security is not given, he must order the accused to be detained in custody, and the action taken is to be reported to the State Government. If such an order is for the detention of the accused in a lunatic asylum, the order must comply with the Rules made by the State Government under the Indian Lunacy Act, 1912.

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The Bombay High Court has held that failure to put to trial the basic issues of unsoundness and incapacity of the accused would vitiate the trial. (Balu Ganpat v. State of Maharashtra, 1983 Cr. L.J. 1769)

The Supreme Court has held that, if, on an examination of the accused, it does not appear to the Sessions Judge that the accused is insane, he need not hold an inquiry into the matter of his insanity. If, however, the Judge has any serious doubts in the matter, he must hold a further inquiry. (Shivaswamy,—A.I.R. 1971 S.C. 1938)

In another case decided by the Supreme Court, which caused a lot of sensation in Bombay (and which was familiarly known as Raghava Raman’s case), it was held that a plea of insanity is available to the accused, even after the Sessions Court trial is over.

In this case, the accused (who had committed mass murders) was sentenced to death by the Sessions Court, and a reference was made to the High Court for confirmation of the sentence. The High Court was of the opinion that the accused was clearly of unsound mind, and that the reference proceedings ought to be postponed until he regained sanity.

The State appealed against this, on the ground that the plea of insanity can be taken only at the trial stage, and as the Sessions Judge had found him of sound mind during the trial, the High Court could not accept the plea of insanity at the confirmation stage.

Rejecting these arguments, the Supreme Court held that the proper construction of the provisions would show that the “trial” can conclude only on the final disposal of the reference by the High Court, and not with the termination of the proceedings before the Sessions Court. (Sindhi,—1975 1. S.C.C. 647)

When an inquiry or trial is postponed on account of the unsoundness of mind of the accused (as discussed above), after such a person has ceased to be of unsound mind, the Court may resume the inquiry or trial, and require the accused to appear, or be brought before the Court.

If, in such cases the sureties for an accused who has been released, produce him before an officer appointed by the Court for this purpose, the certificate of such officer that the accused is capable of making his defence can be received in evidence.

When the accused again appears before the Court, if the Court considers him capable of making his defence, it must proceed with the inquiry or trial. If, however, the Court feels that he is still incapable of defending himself, the above provisions are to be applied to him all over again.

Acquittal on Ground of Unsoundness of Mind:

If the accused appears to be of sound mind at the time of the inquiry or trial, but the Magistrate is satisfied that at the time when the act (constituting the offence) was committed, he was, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that it was wrong or contrary to law, the Magistrate must proceed with the case. If the accused is finally acquitted on this ground, the finding must specifically state as to whether he committed the act or not.

If such finding states that the accused committed the act which would have constituted an offence, but for the incapacity of the accused,—

(a) The Court may order such a person to be detained in safe custody in such place and in such manner as it may think fit; or

(b) The Court may order the person to be delivered to any friend or relative of such person.

If the Court passes an order under clause (a) above, it cannot order detention of such a person in a lunatic asylum, except in accordance with the Rules made by the State Government under the Indian Lunacy Act, 1912 (now repealed by the Mental Health Act, 1987).

Any order under clause (b) above can be passed only on the application of such friend or relative, and on his giving satisfactory security that such a person—

(i) Shall be properly taken care of, and prevented from doing any injury to himself or to any other person;

(ii) Shall be produced for the inspection of such officer as the state government may direct.

In England, the Criminal Law Revision Committee has observed that the Home Office is in a better position than the Court to investigate questions relating to the treatment of the accused who is of unsound mind. It has recommended that in both cases, namely (i) when there is a finding of unfitness to plead, and (ii) when there is a special verdict (i.e. guilty but insane), the Court should have a discretion not to make an order for detention, if it is safe for the general public to order the immediate release of the accused.

Procedure when a lunatic prisoner is capable of making his defence:

Section 337 of the Code provides that in case of such a person detained in jail, if the Inspector-General of Prisons certifies that, in his opinion, the person is capable of making his defence, he must be produced before the Court, and the Court must deal with such a person as per the provisions of this Chapter.

Similarly, if such a person is detained in a lunatic asylum, such a certificate can be given by the visitors of such an asylum, or any two such visitors.

The certificate of Inspector – General, or the visitors (as stated above) can be received as evidence in the case.

Procedure when a lunatic is declared fit to be released:

In the case of a lunatic who is detained, if the Inspector-General (in cases of detention in a jail) or at least two visitors (in cases, of detention in a lunatic asylum) certify that such a person may be released without any danger of his doing any injury to himself or any other persons, the State Government may—

(i) Order him to be released, or

(ii) Order him to be detained in custody, or

(iii) Order him to be transferred to a public lunatic asylum (if he has not already been sent to such an asylum).

In case the State Government orders him to be transferred to an asylum, it may appoint a Commission, consisting of one judicial and two medical officers. Such a commission must then make a formal inquiry into the state of mind of the person concerned, take such evidence as may be necessary, and then submit a Report to the State Government. Thereafter, the State Government may order his release or detention, as it thinks fit.

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