Legal Provisions of Section 329 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Procedure in case of person of unsound mind tried before Court:
The section requires that where an accused is found to be insane, the trial Court should first determine the plea of insanity by recording the medical evidence. The trial of an offence without determining the question of insanity of the accused vitiates the trial because of the violation of the mandatory provision of law as contained in Section 329 of the Code.
ADVERTISEMENTS:
The Supreme Court, in Shivswamy v. State, has held that if on examination of an accused it does not appear to the Sessions Judge that the accused is insane then he need not hold inquiry into the matter of his insanity. However, if he has any doubt in the matter, he should hold further inquiry.
According to the Apex Court’s ruling in Raghav Raman’s Case, the plea of insanity to an accused is not only available during trial but extends till the final disposal of the reference by the High Court. In this case, the accused was convicted and sentenced to death by the Sessions Court and a reference was made to the High Court under Section 366 of CrPC for confirmation of the death sentence.
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The High Court found the accused before it was clearly of unsound mind and consequently postponed the reference proceedings till such time the accused regained sanity. The State appealed against this order on the ground that the plea of insanity was available to the accused only during the trial and the trial had ended with the conviction and sentencing of the accused by the Sessions Court.
ADVERTISEMENTS:
Rejecting this contention of the State, the Supreme Court held that the provisions of Section 329 if properly construed would mean that the “trial” could only conclude on the disposal of the reference by the High Court and not with termination of the proceedings in the Court of Session.
The trial Court should not merely rely on the medical report of Supdt. of hospital that accused is capable of understanding the evidence but should make an inquiry about this fact himself and record finding about insanity or otherwise, of the accused. Noncompliance of this mandatory provision would vitiate the trial.
[330. Release of person of unsound mind pending investigation or trial:
(I) Whenever a person if found under Section 328 or Section 329 to be incapable of entering defence by reason of unsoundness of mind or mental retardation, the Magistrate or Court, as the case may be shall, whether the case is one in which bail may be taken or not, order release of such person on bail:
ADVERTISEMENTS:
Provided that the accused is suffering from unsoundness of mind or mental retardation which does not mandate in-patient treatment and a friend or relative undertakes to obtain regular out-patient psychiatric treatment from the nearest medical facility and to prevent from doing injury to himself or to any other person.
(2) If the case is one in which, in the opinion of the Magistrate or Court, as the case may be, bail cannot be granted or if an appropriate undertaking is not given, he or it shall order the accused to be kept in such a place where regular psychiatric treatment can be provided, and shall report the action taken to the State Government:
Provided that no order for the detention of the accused in a lunatic asylum shall be made otherwise than in accordance with such rules as the State Government may have made under the Mental Health Act, 1987 (14 of 1987).
(3) Whenever a person is found under Section 328 or Section 329 to be incapable of entering defence by reason of unsoundness of mind or mental retardation, the Magistrate or Court, as the case may be, shall keeping in view the nature of the act committed and the extent of unsoundness of mind or mental retardation, further determine if the release of the accused can be ordered:
Provided that—
(a) if on the basis of medical opinion or opinion of a specialist, the Magistrate or Court, as the case may be, decides to order discharge of the accused, as provided under Section 328 or Section 329, such release may be ordered, if sufficient security is given that the accused shall be prevented from doing injury to himself or to any other person;
(b) If the Magistrate or court, as the case may be, is of opinion that discharge of the accused cannot be ordered, the transfer of the accused to a residential facility for persons of unsound mind or mental retardation may be ordered wherein the accused may be provided care and appropriate education and training.]