Somra Oraon v. 1. The State of Jharkhand. 2. Praveen Oraon Toppo
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 336 of 2023 Somra Oraon Versus 1. The State of Jharkhand. 2. Praveen Oraon Toppo --------- … …Petitioner … …Opp. Parties CORAM : HON’BLE MR. JUSTICE SUBHASH CHAND For the Petitioner For the State For the O.P.No.2 : Mr. Gautam Kumar, Advocate. : Mrs. Kismanti Minj, Advocate. : Mrs. Amrita Kumari, A.P.P. : None --------- Order No. 06/ dated 16.08.2023 Learned Counsel for the petitioner Mr. Gautam Kumar and on behalf of State, learned A.P.P. Mrs. Amrita Kumari are present. 2. None appears on behalf of O.P.No.2 despite service of notice. 3. This Cr. Revision has been preferred on behalf of the petitioner Somra Oraon against the order dated 08.02.2023 passed by the learned Additional Judicial Commissioner-XV cum F.T.C. (CAW), Ranchi vide Misc. Criminal Application No. 486 of 2023/Sessions Trial No. 02 of 2018, arising out of Chanho P.S. Case No. 89 of 2017 whereby the petition filed on behalf of the petitioner under Section 328 and 329 of Cr.P.C. has been rejected. 4.
Legal Reasoning
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. (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.] 6 11. From the very perusal of Sections 328 and 329 of Cr.P.C., it is evident that at any stage of a trial if any person before a Magistrate or Court of Sessions appears and shows that the accused is of unsound mind and is incapable of making a defence the Magistrate or the Court concerned in the first instance shall consider the medical and other evidence as may be produced in support of the application and if satisfied the Magistrate or the Court shall record the finding to that effect and shall postpone the further proceeding in the case. In Sub-section (1) (a) of 328 and 329 of Cr.P.C if the Magistrate or the Court of Sessions finds the accused to be unsound, he shall refer such a person to a psychiatrist or a clinical psychologist for care and treatment and the psychiatrist or clinical psychologist, as the case may be, shall inform the Magistrate whether the accused is suffering from unsoundness of mind or mental retardation. 12. Herein in this case, the application was moved on behalf of the petitioner-accused on 07.02.2023 before the trial court supported with affidavit which is Annexure No. 2. So far as the medical evidence in regard to his insanity is concerned, the learned Counsel for the petitioner relied upon the Annexure No.3. This letter was issued by the Superintendent of Birsa Munda Central Jail, Hotwar, Ranchi. It was addressed to the Advocate of the petitioner-accused Mrs. Kismanti Minj in regard to S.T. No. 02 of 2018 pertaining to the medical treatment 7 papers of the under trial prisoner Somra Oraon in which the Superintendent of Birsa Munda Central Jail had stated that all the medical papers can be given only by the order of the Court. This letter is dated 04.03.2023 certainly after passing the impugned order passed by the court-below. 13. On behalf of the State the counter-affidavit was filed on 25.07.2023. In para 6 of this counter-affidavit, it is stated that on 22.01.2022 the Medical Officer, Birsa Munda Central Jail, Ranchi recommended to send the prisoner to RINPAS Ranchi for investigation and proper treatment. Thereafter on 24.01.2022 the Civil Surgeon, Ranchi also recommended for treatment of petitioner at RINPAS. The petitioner was treated at RINPAS on 31.01.2020 also treated subsequently. The Medical Officer again examined the petitioner on 13.07.2023 and reported the presently condition of patient to be stable. The Annexure No. A series of this counter-affidavit are the medical status report dated 13.07.2023. The treatment given to the under trial prisoner Somra Oraon on 31.01.2022 and 20.01.2023 and the Medical Officer report dated 22.01.2022 which is countersigned by Superintendent of Birsa Munda Central Jail, Hotwar, Ranchi. 14. Admittedly, on behalf of the petitioner-accused while moving the application for enquiry under Sections 328 and 329 of Cr.P.C. in regard to the insanity or lunacy of the petitioner- accused, no medical papers were produced before the trial court and the trial court after making the assessment in regard to the 8 rationality of the accused to answer the questions put up by court, rejected this application and found the petitioner in fit stage of mind to make defence in that case. 15. Keeping in view counter-affidavit filed on behalf of the State and the Annexure- A series pertaining to the medical treatment given to the under trial prisoner i.e. petitioner herein and also keeping in view the Annexure No. 3 of this petition, there is prima facie evidence that the under trial prisoner, the petitioner herein, could have been examined in regard to his insanity or lunacy by the competent psychiatrist or clinical psychologist in view of Section 328 (1) (a) and 329 (1) (a) of Cr.P.C. 16. The learned court-below while rejecting the application did not show any ground to disbelieve the affidavit given on behalf of the petitioner in regard to his insanity or lunacy of the accused. Therefore, keeping in view the medical evidence though the same was not produced before the court below yet the same has been adduced in this Cr. Revision on behalf of the State by way of counter-affidavit and also keeping in view the Annexure No. 3 the letter issued by the Superintendent of Birsa Munda Central Jail there are sufficient grounds to remit back this matter to the court-below to make an enquiry under Sections 328 and 329 of Cr.P.C. in regard to the insanity or lunacy of the petitioner and to adopt the procedure in view of Section 328 (1) (a) and 329 (1) (a) of Cr.P.C. Accordingly, this Cr. Revision deserves to be allowed. 9 17. This Cr. Revision is hereby allowed. The impugned order passed by the court-below is set aside. 18. The trial court is directed to decide this application afresh keeping in view the observation made by this Court in passing this order in Cr. Revision. 19. It is further made clear that if the trial has not been concluded, the trial court is directed to dispose of this application on priority basis keeping the trial postponed till disposal of this application and thereafter to proceed in view of the result of the enquiry. P.K.S. (Subhash Chand, J.)
Arguments
The learned Counsel for the petitioner has submitted that the application was moved on behalf of the petitioner that the accused in that case was of unsound mind and he is not capable to make defence in his case and also requested for the enquiry 2 to be conducted under Sections 328 and 329 of Cr.P.C. The learned court-below rejected this application on the ground that the case was fixed for the statement of accused under Section 313 of Cr.P.C. and the accused was asked by the court his name, age, date, address etc. he replied the same rationally. Even he put his signature on the statement under Section 313 of Cr.P.C. The behaviour and conduct of the accused appeared to be normal. No sign of insanity or unsoundness was found and accordingly rejected the application. 5. It is also further submitted that in this case though the statement under Section 313 of Cr.P.C. of the accused has been recorded yet the argument has not been concluded. 6. It is also further submitted that the procedure as given under Sections 328 and 329 of Cr.P.C. was not adopted by the court-below. Accordingly, contended to allow this Cr. Revision and to set aside the impugned order passed by the trial court. 7. The learned A.P.P. opposed the contentions made by the learned Counsel for the petitioner and contended that the court- below has passed the impugned order taking into consideration the questions put up to the accused and the impugned order needs no interference. 8. On behalf of the petitioner accused Somra Oraon had moved the application on 07.02.2023 before the trial court which is Annexure No. 2 of this petition wherein the petitioner has submitted that the case was at the stage of trial. Some of the witnesses have been examined and cross-examined but the 3 accused was not capable to make his defence since he was of unsound mind and if the enquiry was held in regard to his unsoundness, thereafter the trial could be proceeded or deferred. 9. The trial court vide order dated 08.02.2023 rejected this application and on the sole ground that the petitioner-accused was capable to make defence. The touchstone of the same was the question put up by the trial court and the answer given by the accused and the basis was also made the statement of accused under Section 313 of Cr.P.C. 10. Herein it would be pertinent to give the provisions of Section 328 and 329 of Cr.P.C. which read as under: 328. Procedure in case of accused being lunatic.-(1) 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 by the civil surgeon of the district or such other medical officer as the State Government may direct, and thereupon shall examine such surgeon or other officer as as witness, and shall reduce the examination to writing. 37[(1-A) If the civil surgeon finds the accused to be of unsound mind, he shall refer such person to a psychiatrist or clinical psychologist for care, treatment and prognosis of the condition and the psychiatrist or clinical psychologist, as the case may be, shall inform the Magistrate whether the accused is suffering from unsoundness of mind or mental retardation: 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- (a) head of psychiatry unit in the nearest Government Hospital; and 4 (b) a faculty member in psychiatry in the nearest medical college.] (2) Pending such examination and inquiry, the Magistrate may deal with such person in accordance with the provisions of section 330. 38[(3) If such Magistrate is informed that the person referred to in sub-section (1-A) is a person of unsound mind, the Magistrate shall further determine whether the unsoundness of mind renders the accused incapable of entering defence and if the accused is found so incapable, the Magistrate 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 he finds that no prima facie case is made out against the accused, he shall, instead of postponing the enquiry, discharge the accused and deal with him in the manner provided under Section 330: Provided that if the Magistrate finds that a prima facie case is made out against the in respect of whom a finding of unsoundness of mind is arrived at, he shall postpone he proceeding for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused, and order the accused to be dealt with as provided under Section 330. (4) If such Magistrate is informed that the person referred to in sub-section (1-A) is a person with mental retardation, the Magistrate shall further determine whether the mental retardation renders the accused incapable of entering defence, and if the accused is found so incapable, the Magistrate shall order closure of the inquiry and deal with the accused in the manner provided under Section 330.] 329. Procedure in case of person of unsound mind tried before Court.- If at the trial of any person before a Magistrate (1) 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 5 finding to that effect and shall postpone further proceedings in the case. 39[1-A) 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: 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- (a) head of psychiatry unit in the nearest Government hospital; and (b) a faculty member in psychiatry in the nearest medical college.] shall 40[(2) If such Magistrate or Court is informed that the person referred to in sub-section (1-A) is a person of unsound mind, the Magistrate or Court further determine whether unsoundness of mind renders the accused incapable of entering defence and if the 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: