Narayan Nayak v. State of Odisha
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 2017 of 2023 Narayan Nayak .… Petitioner Mr. H.K Mund, Adv. - Versus - State of Odisha (Vig.) .… Opp.Party
Legal Reasoning
Mr. N. Maharana, SC for Vigilance Dept. CORAM: JUSTICE SASHIKANTA MISHRA
Decision
ORDER 30.08.2023 Order No. 4. 1. This matter is taken up through hybrid mode. 2. Heard Mr. H.K. Mund, learned counsel for the petitioner and learned Standing Counsel for Vigilance Department. 3. The petitioner is facing trial in T.R. No. 15/37 of 2009/2004 on the allegation of committing the offence under Section 13(1)(e) of Prevention of Corruption Act, 1988. He filed an application under Section 329 of Cr.P.C. on 02.03.2023 to pass an order directing his medical checkup by a Medical Officer of the State Government to support his claim that he is of unsound mind. The petition was supported by a medical certificate. The prosecution filed an objection indicating that there is no material to show that the petitioner is of unsound mind. The Court below by order dated 06.04.2023, took note of the fact that no information has been given to the Court at any point of time earlier even though the petitioner claims to have suffered from brain hemorrhage and stroke in the year 2017. The Court below was convinced that the petition was filed only to protract the trial and accordingly rejected the same. Page 1 of 4 4. Mr. H.K. Mund, learned counsel for the petitioner submits that law mandates that whenever a claim for declaring an accused as an unsound mind, an enquiry is required to be conducted by the Court and if necessary, such person is to be referred to a Psychiatrist or Clinical Psychologist. Mr. Mund further submits that the procedure as prescribed under the statute has not been followed and therefore, the impugned order warrants interference. 5. Mr. Maharana, learned Standing Counsel appearing for Vigilance Department has opposed the contentions of Mr. Mund by arguing that the petitioner had also filed an application on 11.11.2022 to examine several witnesses from his side. Said petition was allowed in part by the order impugned. According to Mr. Maharana this shows that the petitioner is not of unsound mind nor is incapable of understanding the proceedings against him. 6. In order to appreciate the rival contentions, it would be apposite to refer to the provision under Section 329 of Cr.P.C., which is quoted hereinbelow. “329. Procedure in case of person of unsound mind tried before Court.—(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. (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 Page 2 of 4 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 further (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 determine whether Court 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: 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 clinical psychologist, is required for the treatment of the accused. psychiatrist the or of (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.” 7. A bare reading of the provision quoted above would make it clear that it is incumbent upon the Court to first form an opinion as regards the fact of unsoundness and incapacity of the accused. If necessary, he shall also refer such person to a Psychiatrist and Clinical Psychologist for care and treatment. As it appears in the instant case, the Court below has simply rejected the petition filed by the accused by referring to his Page 3 of 4 earlier ailment in the year 2017 and on the ground that no supporting document was filed. It has also been held that the petition was filed only to play hide and seek with the Court and to protract the case for an indefinite period. 8. After considering the submissions and the relevant statutory provision, this Court is of the considered view that when a plea of unsoundness of mind has been raised, the same ought to have been dealt with as per procedure prescribed by the statute. The Court below should have directed appearance of the petitioner before him to form an opinion at the outset as regards his mental condition. The Court also could have referred the petitioner for examination by a Medical Board. To such extent therefore, the impugned order must be treated as unsustainable in the eye of law. 9. In the result, the CRLMC is allowed, the impugned order in so far as it relates to rejection of the petition dated 02.03.2023 is hereby quashed. The Court below is directed to consider the petition again by calling upon the petitioner to appear before him. The Court below shall at the first instance try to form an opinion as regards the mental condition and if necessary, refer him to a Medical Board for the needful. Basing on such opinion, either of the Court itself or of the Medical Board necessary orders may be passed on the petition. Since this is a case of the year 2004, the Court below shall do well to dispose of the petition as early as possible, preferably within a period of six weeks. Signature Not Verified Digitally Signed A.K. Rana Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 31-Aug-2023 15:11:25 (Sashikanta Mishra) Judge Page 4 of 4