Disposed

Mr.Ghoshravu, v. State of Kerala

Kerala HC1 Aug 2019OP(Crl.)/224/2019

Case brief

AI extract

What is this about?

The Kerala High Court disposed of a writ petition seeking directions to initiate Chapter XXV proceedings for unsoundness of mind. The Court held that no formal request was made by the petitioner before the trial Court, and thus the merits could not be examined by this Court.

What did the court decide?

Copies of the judgment were directed to be forwarded to the 3rd Additional Assistant Sessions Court, Kozhikode.

Mr.Ghoshravu, Vs State of Kerala — Service and Employment | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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THURSDAY, THE 1ST DAY OF AUGUST 2019 / 10TH SRAVANA, 1941

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OP(CRL.).NO.224 OF 2019

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SC 89/2019 OF ADDITIONAL SESSIONS COURT, KOZHIKODE-III

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PETITIONER:

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MR.GHOSHRAVU, AGED 27, S/O.E.RAVEENDRAN, DELIGHT HOUSE, VALAYANAD AMSOM DESOM, KOZHIKKOD THALUK, KOZHIKKOD DISTRICT- 673007, REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN, SMT.SALLA U.K., AGED 58, W/O.E.RAVEENDRAN, DELIGHT HOUSE, VALAYANAD AMSOM DESOM, KOZHIKKOD THALUK, KOZHIKKOD DISTRICT- 673007.

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BY ADVS. SRI.V.MAHENDRANATH, SRI.R.SYLESHWAREN NAIR

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RESPONDENT:

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STATE OF KERALA, REPRESENTED BY THE GOVERNMENT PLEADER, HIGH COURT OF KERALA- 682031.

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SMT.PRIYA SHANAVAS, PUBLIC PROSECUTOR

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THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 01.08.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ALEXANDER THOMAS, J. -----------------------------------------O.P.(Crl.) No. 224 of 2019

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Dated this the 1^st day of August, 2019

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J U D G M E N T

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The case projected in this Original Petition (Criminal) filed under Article 227 of the Constitution of India are as follows: The petitioner is the accused in S.C.No.89/2019 of the 3^rd Additional Sessions Court, Kozhikode, and is represented by his mother and natural guardian. The offences alleged against the accused are under Secs.323, 324, 308, 294(b) and 34 of the IPC. The accused is a psychic patient and is undergoing treatment for depressive disorder with obsessive compulsive symptoms and is under treatment. The petitioner is stricken with profused burst of anger and is not tamable. Bringing the petitioner to the Court will not be safe at most of the time. The petitioner will become aggressive if he is compelled to do or say anything. Moreover, standing a trial for prolonged time will be an impossible thing as the outburst of anger is uncertain. Thus the petitioner is incapable of making his defence and hence trial in such a situation would be almost impossible because of the unruly behaviour of the petitioner as he

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O.P. (Crl.) No. 224 /2019

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being of unsound mind. Trial of cases of accused of unsoundness of mind without following the provisions under Chapter XXV of the Code of Criminal Procedure would lead only to miscarriage of justice. The trial Court ought to have followed the provisions of Chapter XXV of the Code of Criminal Procedure, but the prayer has not been considered by the Court below. It is in the light of these averments and contentions that the petitioner has filed the instant case with the following prayers.

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“

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i. To direct the 3^rd Additional Sessions Judge, Kozhikode to pursue the provisions under Chapter XXV of the Code of Criminal Procedure in the matter of the accused in the case. ii. Grant such other reliefs which this Hon'be Court may deem fit and necessary to grant in the circumstances of the case.”

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This Court as per order dated 29.5.2019 had granted of stay of further proceedings in S.C.No.89/2019 on the file of the 3^rd Additional Sessions Court, Kozhikode, and also directed the Investigating Officer concerned to immediately ascertain from the Psychiatrists who have issued Exts.P-2 & P-3 medical certificates as to the genuineness and correctness of the contents of those certificates, to file a report before this Court well before 20.6.2019.

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O.P. (Crl.) No. 224 /2019

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It appears that, even till date the Investigating Officer has not cared to comply the said direction, though more than 2 months have elapsed, since such direction has been issued on 29.5.2019.

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Later this Court had also directed the Registry to get a report from 3^rd Additional Assistant Sessions Court, Kozhikode, who is dealing with S.C.No.89/2019, as to whether any plea has been taken up for and on behalf of the petitioner accused that he is suffering from unsoundness of mind and that proceedings under Chapter XXV of the Code of Criminal Procedure, more particularly Sec.329 thereof should be initiated in this case, etc. Now the 3^rd Additional Assistant Sessions Court, Kozhikode, has furnished a report dated 29.6.2019 to the Registry of this Court, wherein it has been stated that S.C.No.89/2019 on the file of the said Court is based on the final report/charge sheet filed in Crime No.299/2018 of Kasaba Police Station, against the accused herein for offences under Secs.323, 324, 294(b) & 308 of the Indian Penal Code. The case records was received on the file of said Court on 11.2.2019 as per the order of the Sessions Court concerned, and thereafter

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O.P. (Crl.) No. 224 /2019

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summons was issued to the accused for appearance on 13.3.2019, on which he appeared and filed application to permit him to continue on the bail bond executed during the committal stage. The said application was allowed. Thereafter after hearing both sides, charge under Sec.323, 324, 294(b) & 308 of the Indian Penal Code was framed and read over to the accused and he pleaded not guilty. Further that, at the time of framing of charge, no plea of unsoundness of mind was put forwarded by the accused and therefore no application was filed before the 3^rd Additional Assistant Sessions Court, Kozhikode, stating that the accused is not fit to face trial due to unsoundness of mind. The case was posted for evidence on 10.4.2019 and 30.5.2019. On 30.5.2019 the accused was absent and application filed for condoning his absence and it was allowed and case stands posted to 1.7.2019.

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The case of the petitioner is that, his counsel had made oral plea before the jurisdictional Magistrate Court concerned, which was not heeded. The counsel for the petitioner has no case that a written application was filed either before the jurisdictional

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O.P. (Crl.) No. 224 /2019

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Magistrate Court concerned before committal, or before the 3^rd Additional Assistant Sessions Court, Kozhikode, after the committal proceedings. Sec.329 which is appended under Chapter XXV of the Code of Criminal Procedure reads as follows:

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“Section 329: Procedure in case of person of unsound mind tried before Court

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(1) If at the trial of any person before a Magistrate or Court of Session, 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 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.

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(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:

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Provided that if the accused is aggrieved by the information given by the psychiatric or clinical psychologist, as the case may be, to the Magistrate, he may prefer an appeal before the Medical Board which shall consist of--

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(a) head of psychiatry unit in the nearest Government hospital; and

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(b) a faculty member in psychiatry in the nearest medical college.

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(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

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O.P. (Crl.) No. 224 /2019

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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:

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Provided that if the Magistrate or Court finds 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.

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(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.”

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Without getting into the merits of the controversy in

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any manner it is only to be held that, in case the petitioner has any valid plea that he is suffering from unsoundness of mind, then it is for the party concerned to make an appropriate application under Sec.329 of the Code of Criminal Procedure before the trial Court, since the trial has already commenced with the framing of charge.

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Counsel for the petitioner would point out that, since the petitioner is suffering from unsoundness of mind, he may be permitted to file such application through his best friend, etc.

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O.P. (Crl.) No. 224 /2019

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This Court need not be drawn into any such aspects and it is for the petitioner to work out his remedies in accordance with law, and if any such plea is made before the trial Court concerned, it is for the said Court to deal with the matter in accordance with law.

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Counsel for the petitioner would then submit that, appropriate application under Sec.329 of the Code of Criminal Procedure would be filed before the 3^rd Additional Assistant Sessions Court, Kozhikode, who is dealing with S.C.No.89/2019 without much delay preferably within a period of 2 to 3 weeks from the date notified for receiving a certified copy of this judgment.

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It is for the petitioner to work out his remedies in the manner known to law, and since no such formal request has been made either before the jurisdictional Magistrate Court concerned, or before the Assistant Sessions Court concerned, this Court need not in any manner examine the merits of the controversy. All those are matters which would come within the province and domain of the abovesaid trial Court only after the petitioner files proper

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O.P. (Crl.) No. 224 /2019

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application in that regard. Registry to forward a copy of this judgment to the 3^rd Additional Assistant Sessions Court,

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Kozhikode, for necessary information.

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With these observations and directions, the above Original Petition (Criminal) will stand disposed of.

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Sd/-

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ALEXANDER THOMAS, JUDGE

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MMG

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O.P. (Crl.) No. 224 /2019

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE F.I.R IN S.C.89/2019 OF THE 3RD ADDL.SESSIONS COURT, KOZHIKKOD.

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EXHIBIT P2 TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY DR.ANUPAMA BHARGAVAN, CONSULTANT PSYCHIATRIST, GOVT. MENTAL HEALTH CENTRE, KUTHIRAVATTOM, CALICUT.

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EXHIBIT P3 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 28.07.2018 ISSUED BY DR.ANISH.P.K., ASST.PROFESSOR OF PSYCHIATRY, INSTITUTE OF MENTAL HEALTH AND NEURO SCIENCES, GOVT.MEDICAL COLLEGE, KOZHIKKOD.

Mr.Ghoshravu, v. State of Kerala

Case brief

What is this about?

What did the court decide?

Mr.Ghoshravu, v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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