Kerala High Court
Mariyappan vs State Of Kerala on 27 June, 2025
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
FRIDAY, THE 27TH DAY OF JUNE 2025 / 6TH ASHADHA, 1947
CRL.A NO. 1754 OF 2023
AGAINST THE JUDGMENT DATED 25.08.2022 IN SC NO.1383 OF 2019 OF
ADDITIONAL DISTRICT COURT & SESSIONS COURT - VI,
THIRUVANANTHAPURAM
APPELLANT/ACCUSED:
MARIYAPPAN
AGED 56 YEARS
S/O RAMACHANDRAN, MORTGAGE DEED HOUSE AT
TC. 42/498, S.K. NIVAS, BACKSIDE OF
MUKKOLAKKAL TEMPLE, SREEVARAHAM WARD,
MUTTATHARA VILLAGE, THIRUVANANTHAPURAM
DISTRICT - 695009., FROM RAMALEKSHMI
BHAVANAM, DOOR NO. 2A/280, MARAVAR STREET,
MADATHUR POST, THTHUKUDY TALUK,
THUTHUKUDY DISTRICT, TAMIL NADU STATE,
PIN - 628008
BY ADVS.
SHRI.GODWIN JOSEPH
SHRI.ARUN BABU B.
SHRI.NAVEEN.R
SHRI.SHAHUL HAMEED M.
SHRI.SAJEEV K.M.
SHRI.ANILKUMAR V.
SHRI.SARATH K.P.
SMT.TITTY ANN JACOB
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SHRI.SREENATH VIJAYARAGHAVAN
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA AT ERNAKULAM
(CRIME NO. 1946/2018 OF FORT POLICE STATION)
PIN - 682031
SRI. RENJITH T.R., SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON
20.06.2025, THE COURT ON 27.06.2025 DELIVERED THE FOLLOWING:
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"CR"
JUDGMENT
Raja Vijayaraghavan, J.
This appeal is preferred, by the appellant under Section 374 (2) of the Code of
Criminal Procedure, challenging the judgment dated 25.08.2022 passed by the
Additional Sessions Judge -VI, Thiruvananthapuram finding him guilty for the offence
under section 302 of the IPC and consequently sentencing him to undergo
imprisonment for life for committing uxoricide.
2. Before we deal with the facts of the instant case, it is imperative to note
that the instant case starkly illustrates the systemic failure of the criminal justice
system. Despite the existence of records indicating that the appellant, who is alleged to
have committed the cold-blooded murder of his wife, was suffering from Bipolar
Disorder accompanied by delusions of infidelity, the investigating agency failed in its
duty to collect, preserve, and produce such crucial records before the Trial Magistrate.
This lapse occurred from the initial stages and carried on till the final report was
submitted for the purpose of committal to the Court of Session. It is significant to note
that the committal court itself had, at an earlier stage, satisfied itself by examining the
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appellant and a psychiatrist that he was mentally unfit and unable to understand the
nature of the proceedings and had directed that the accused be sent for psychiatric
evaluation and treatment at the Mental Health Centre. However, acting on a report from
the medical officer stating that the accused was fit to stand trial, the committal court
proceeded, in a mechanical and routine manner, to commit the case to the Court of
Session–without independently satisfying itself as to whether the accused was, in fact,
mentally capable of understanding the proceedings and effectively defending himself in
a trial for a capital offence. Unfortunately, the learned counsel who appeared for the
appellant before the Trial Court also failed to raise any contention seeking the benefit of
Section 84 of the Indian Penal Code, which provides immunity from criminal liability for
acts committed by a person of unsound mind. Although it was elicited during the
cross-examination of the appellant’s sons that the appellant had been undergoing
psychiatric treatment, the defence was unable to effectively bring to the notice of the
learned Sessions Judge that the appellant was suffering from a mental ailment of such
severity as to render him incapable of making his defence. This failure, both at the
stage of investigation and during trial, left the learned Sessions Judge with no option
but to evaluate the evidence on record and ultimately arrive at a finding of guilt,
without being apprised of the material facts that could have fundamentally altered the
course of the trial.
3. With the above preface, we shall narrate the sequence of events.
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4. The appellant, a 52-year-old man working as a ragpicker, was residing with
his wife and their two sons, who were examined as PWs 2 and 3. As per the case of the
prosecution, they were residing on the first floor of a house named S.K. Nivas, bearing
Registration No. T.C.48/458(1), owned by PW1. On 23.09.2018, the appellant and the
deceased went together to watch a movie. After returning from the movie, the
appellant and his wife went upstairs to their residence. The prosecution alleges that at
about 10:15 p.m., the appellant attacked his wife with a hatchet, inflicting multiple cut
injuries upon her. Thereafter, he locked the room and the house, and left the premises
on his M80 scooter. While the appellant was leaving the house, PW2, one of his sons
arrived at the house. Finding the rooms locked, he obtained the keys from PW1. When
he opened the room, he was shocked to find his mother lying on the floor with bleeding
injuries and she was found to be lifeless. This, in short, is the prosecution’s version of
events.
5. To prove its case, the prosecution examined as many as 27 witnesses as
PWs 1 to 27 and exhibited 41 documents, marked as Exts. P1 to P41. Various material
objects were also identified and marked as MOs 1 to 25. After the close of the
prosecution evidence, the incriminating materials were put to the appellant under
Section 313(1)(b) of the Code of Criminal Procedure. The appellant denied all
incriminating circumstances and maintained that he was innocent. No evidence was
adduced on behalf of the defence.
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6. On an evaluation of the evidence adduced, the learned Sessions Judge
came to the conclusion that the prosecution had successfully established that the
appellant harboured doubts regarding the chastity of his wife, Kanniyammal. The court
further noted that, at the relevant time, no one other than the appellant and his wife
could have been present inside the room. The scientific evidence, including the
detection of the appellant’s footprints inside the room, also pointed unmistakably to his
guilt. On the basis of these findings, the appellant was convicted and sentenced to
undergo imprisonment for life.
7. Sri.Godwin Joseph, the learned counsel appearing for the appellant,
submitted that the appellant was denied a fair trial. His principal contention is that
immediately after the arrest of the appellant, he was examined by a doctor who noted
that the appellant was suffering from psychiatric ailments and had even recommended
psychiatric consultation. In the bail application filed on 09.10.2018, the learned counsel
had also specifically highlighted that the appellant was suffering from psychiatric
disorders. The learned counsel referred to the reports of the medical officer dated
05.11.2018 and 18.12.2018, which consistently revealed that the appellant had a
history of mental illness spanning over ten years. The reports recorded that the
appellant exhibited fearfulness, delusions of infidelity, referential ideas, depressive
cognition, and restricted affect. The medical opinion was that the appellant was
suffering from a severe form of bipolar mood disorder with mixed episodes and
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psychotic symptoms.
8. After considering the medical reports, the learned Magistrate had directed
the Superintendent of Jail to admit the appellant to the Mental Health Centre,
Peroorkada, and obtain further reports. The learned counsel contends that ultimately,
on 29.08.2019, based solely on the report of the doctor, the learned Magistrate, by a
stereotyped and mechanical order, concluded that the appellant was fit to stand trial
and committed the case to the Court of Session. It is submitted that this amounts to
non-compliance with Section 332 of the Code of Criminal Procedure, as the learned
Magistrate did not independently satisfy himself that the appellant was capable of
making his defence. The learned counsel further points to the committal order itself and
submits that the procedure adopted by the learned Magistrate was flawed.
9. According to the learned counsel, the records before the committal court
clearly and emphatically showed that the appellant was suffering from a serious mental
ailment, but both the prosecution and the investigating agency suppressed this vital
fact. It is further urged that the learned Sessions Judge failed to peruse the available
records and did not consider, prior to the commencement of trial, whether the
procedure under Section 329 of the Cr.P.C. ought to have been invoked. For one reason
or another, the accused was not properly defended, and the learned counsel who
appeared for the appellant also failed to raise any contention seeking the benefit of
Section 84 of the IPC. According to the learned counsel, serious prejudice has been
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caused to the appellant on all counts, and consequently, the entire trial stands vitiated.
To substantiate his contentions, learned counsel has referred to the judgment rendered
by the Division Bench of the Guwahati High Court in the State of Manipur vs
Saikhom Ramo Singh1, Aji @ Ajith Kumar v. State of Kerala2, State of Gujarat
v. Manjuben D/o Kasturbhai Kunvariya (Devipujak)3, Hamid Kaliya & Anr. v.
State Of Rajasthan4, State v. Chellayan5 and in Babu Valleriyan v. State of
Kerala6.
10. The learned Public Prosecutor, while stoutly refuting the contentions
advanced by the learned counsel, submitted that the learned Magistrate had perused
the report of the Doctor before committing the case to the Court of Sessions. It is
further urged that at no point of time, before the Trial Judge, was a contention taken by
the defence that the appellant was suffering from any sort of mental ailment. It is
submitted that the learned Sessions Judge has evaluated the entire evidence and has
arrived at the finding of guilt.
11. We have carefully considered the submissions advanced. It is undisputed
that the wife of the appellant was brutally murdered in her own residence. The learned
counsel appearing for the appellant did not in fact argue on the merits of the matter.
1
[(2004) 2 Crimes 385 Gauhati High Court, (DB)]
2
[2012 SCC ONLINE KER 31972]
3
[2019:GUJHC:12963-DB]
4
[2006 SCC OnLine Raj 8170]
5
[1954 KLT 54]
6
[2019 (2) KLT 318]
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His entire argument centred around Chapter XXV of the Cr.P.C., which deals with the
provisions as to accused persons of unsound mind.
12. Before addressing the legal position, it is necessary to first consider the
condition of the appellant at the time of his arrest and thereafter.
13. In the present case, the First Information Report was registered on
23.09.2018, and the accused was arrested on 25.09.2018. Immediately after his arrest,
the accused was produced for medical examination before the Taluk Hospital, Fort,
Thiruvananthapuram. The medical examination, which was conducted on 01.10.2018,
revealed that the appellant was suffering from psychiatric illness. The doctor in the
medical examination report recommended that the accused required psychiatric
consultation.
14. Subsequently, on 09.10.2018, an application seeking bail was filed on
behalf of the appellant before the learned Magistrate. In that application, it was
specifically averred that the appellant had been undergoing treatment for mental illness
for the past ten years. The learned Magistrate, however, dismissed the bail application
by order dated 11.10.2018.
15. Thereafter, on 17.10.2018, the accused was produced before the learned
Magistrate, who, taking note of his condition, directed the Superintendent of the
concerned jail to provide necessary medical care and attention to the accused. The
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learned Magistrate also issued directions to file a report regarding the mental condition
of the accused.
16. The matter was then posted on 13.11.2018 and again on 23.11.2018.
However, it appears from the record that no report regarding the mental condition of
the accused was placed before the court on those dates. Then the case was posted on
26.11.2018. The order passed by the learned Magistrate on that day is very relevant.
The said order reads as under:
“Accused is produced. Report from Medical Officer, Central Prison
is produced. Counsel for the accused filed application contending that the
accused is of unsound mind and is under treatment for the past 10 years.
From the records it is seen that accused was diagnosed with bipolar
disorder. In order to assess the mental condition of accused the court
conducted inquiry (enclosed in separate sheet). The accused stated that he
does not know where he is presently standing and why he is brought here.
On hearing the above answers, the mental condition of the accused to
stand for trial has to be assessed. So to assess whether the accused is of
unsound mind so as to make it incapable of entering his defence has to be
ascertained. Hence the accused is sent to Mental Health Centre, Peroorkada
for observation for 10 days. The Superintendent Shall file report as to the
mental condition of the accused as to whether he is fit to stand for trial in
such mental state. Produce accused along with report in court on
7.12.2018.”
17. The court conducted an enquiry and put certain questions to the accused.
He stated that he was unaware as to why he was brought to the court and was not able
to understand where he was physically at that moment. It would be relevant to note
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that the learned Magistrate had also referred to the report submitted by the Medical
Officer of the Central Prison. The said report dated 05.11.2018 reads as under:
“RP No. 3262 Mariyappan was examined at Prison OPD at
Central Prison, Poojapura as part of health screening following
admission to prison on 25.10.2018He presented history of diabetes for 10 years. His vitals
including blood pressure and blood sugar levels were monitored. He
was started on oral hypoglycemic medicines for diabetes and
anti-hypertensive as twice daily regimen.
He was shifted to 10 block for observational care and
scheduled a consultation for opinion at Psychiatry OPD (at Central
Prison, Poojapura) conducted by visiting Psychiatrist from Mental
Health Center, Peroorkada. He was shown at Psychiatric OPD at
Prison on 03.11.2018 and he was diagnosed to suffer with bipolar
affective disorder and advise on medications. He is provided with all
medications and care including diabetes and hypertension and
advised for regular blood pressure monitoring at Prison OPD.
(emphasis supplied)The order passed by the learned Magistrate pursuant to the enquiry as well as
the medical report, revealed that the appellant was suffering from mental ailment and
that he was totally incapable of understanding the proceedings.
18. On 10.12.2018, the learned Magistrate issued summons to the
Superintendent of the Mental Health Centre, directing personal appearance to provide
clarification regarding the mental condition of the accused. Pursuant to the same, on
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18.12.2018, the doctor appeared before the court and she was examined. Ext. X1, a
certificate issued by the doctor, was marked on the side of the prosecution as part of
the enquiry under Section 328 of the Code of Criminal Procedure. We feel it would be
appropriate to extract the evidence of Dr. Aniji V.R., the doctor attached to the Mental
Health Centre, Peroorkada, as recorded by the learned Magistrate on 18.12.2018. She
deposed as follows:
“I am working as consultant in Mental Health Center,
Peroorkada, Thiruvananthapuram. I examined Sri.Mariyappan,
admitted on 28.11.2018, serially. As per the history obtained from the
patient, he has around 10 years of mental illness, episodic in nature.
He is also overactive and has excess happiness and low mood and low
energy. He is on irregular treatment. History of suspiciousness over
wife since 1 year. There is history of mental illness and several first
degree relatives. On examination, he had fearfulness, infidelity
delusions, referential ideas, depressive cognition and restricted effect.
The impressions are bipolar mood disorder, mixed episode with
psychotic symptoms. He is not sufficiently improved with treatment
and he is not fit for trial at present. After examining the patient as
inpatient since admission on 28.11.2018, I issued certificate on
06.12.2018 describing mental condition of the patient. The same bears
my signature. The certificate dated 06.12.2018 is marked as Ext.X1”
(emphasis supplied)
19. The medical certificate issued by Dr. Aniji V.R., Consultant at the Mental
Health Centre, Peroorkada, describes in detail the serious mental health issues faced by
the appellant. According to the doctor, the appellant had been suffering from mental
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illness for about 10 years. His condition was episodic, meaning it came and went in
phases. He showed extreme mood swings–sometimes being overly active and
excessively happy, and at other times feeling very low in mood and energy. Importantly,
he was not taking treatment regularly. The doctor noted that for about a year, the
appellant had developed suspiciousness towards his wife, believing without reason that
she was unfaithful. There was also a family history of mental illness among his close
relatives. When the doctor examined him, the appellant displayed serious symptoms: he
appeared fearful, had delusions about his wife’s infidelity, had ideas that unrelated
things or people were referring to him, which is known as referential ideas, showed
signs of depression in his thinking, and lacked normal emotional responses or restricted
affect. The doctor concluded that the appellant was suffering from a severe form of
bipolar mood disorder with mixed episodes–meaning he had both manic (high energy)
and depressive (low energy) symptoms at the same time–along with psychotic
symptoms such as delusions. Crucially, the doctor clearly stated that the appellant had
not improved sufficiently despite treatment and was not fit to stand trial at that time.
20. When the matter came up on 27.12.2018, the learned Magistrate took
note of the fact that as per the certificate and examination of the doctor, the accused
requires further treatment in the Mental Health Center. The learned Magistrate called for
a report as to whether the accused has improved after treatment. On the same day
itself, C.M.P.No. 1345 of 2018 was filed by the appellant seeking statutory bail. The case
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was posted for orders on 28.12.2018.
21. On 28.12.2018, the application for statutory bail was allowed. However,
we are informed by the learned counsel appearing for the appellant that since he was
not able to execute the bond and get himself released, he continued to languish in
prison even thereafter.
22. The case was then taken on 4.01.2019. On that day, the learned Magistrate
had noted that the accused was undergoing treatment at the Mental Health Centre,
Peroorkkada. The Superintendent of the Hospital had filed a report that the accused has
improved with treatment, but is not fit to stand for trial. Directions were issued to the
Superintendent, Mental Health Centre, to provide further assistance to the accused and
not to send him back to the Jail. The case was then posted on 21.01.2019 and on
27.02.2019, on which days nothing transpired.
23. Thereafter, on 28.02.2019, the case was posted. The court noted that the
accused had not been produced and that a report as to the mental condition of the
accused had not been received in court. The learned Magistrate directed that the action
taken in the above case be reported to the District Collector. On 22.04.2019, a report of
the Medical Officer, which is dated 14.03.2019, was placed before the court. In the said
report, it was stated that the accused was not fit to stand for trial. Thereafter, the case
was posted on 24.05.2019.
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24. The report of the Medical Officer dated 14.3.2019 reads as under:
"I may inform the Hon'ble Court that the patient Sri.
Mariyappan admitted on 28/11/2018 with Bipolar mood Disorder-
mixed state is symptomatically improved. But he denies involvement
in any crime and report unawareness of the case against him. He is
not fit for trial now. The fitness for trial may be assessed on OP basis
monthly.
He is fit to be discharged with medications and can be taken
back to Jail at the earliest.”
25. The order passed by the learned Magistrate on 24.05.2019 reads as under:
“Report received from Central Prison that accused is discharged
from Mental Health Center, Peroorkkada on 22.05.2019 and is
admitted in the prison. Copy of the Medical Record dated 21.05.2019
was also filed before the court. Directions were issued to the Jail
Superintendent to accommodate the accused Mariyappan in the
Special Enclosure with medical attention and to ensure that he does
not cause any injury to himself or any other person with due care.
Accused shall be produced for regular medical checkups at Mental
Health Center, Peroorkkada.”
26. Thus, the report revealed that the appellant had been admitted to the
Mental Health Centre, Peroorkada, for treatment of his serious mental illness and after
several months of care, he was discharged on 22.05.2019 and sent back to the prison.
The learned Magistrate, who was monitoring the situation, was well aware of the
seriousness of his condition and gave special instructions to the Jail Superintendent to
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keep the accused in a special enclosure inside the prison so that he could get proper
medical care at all times. The court was concerned that Mariyappan might harm himself
or others because of his mental state, so it ordered that the prison authorities take all
necessary precautions to ensure safety. The court also directed that Mariyappan be
regularly taken back to the Mental Health Centre for medical check-ups to monitor his
mental health. This shows that even after discharge from the hospital, his mental illness
was still a matter of serious concern, requiring continued medical supervision and
protective measures.
27. When the case came up on 15.07.2019, the learned Magistrate proceeded
to extend the remand till 29.07.2019. The learned Magistrate perused the letter
received from the Superintendent of Mental Health Center, Peroorkada, informing that
the appellant had been discharged and he has been sent to the Central Prison,
Thiruvananthapuram.
28. Directions were issued to produce the certificate from the concerned doctor
as to whether the appellant was fit for trial. Thereafter on 29.08.2019 the case was
posted. It appears that the certificate of the Superintendent was placed before the
Court. After perusing the certificate dated 18.08.2019, the learned Magistrate
proceeded to pass an order which reads as under:
“Accused is produced. Medical certificate is received. It says that the
accused is fit to stand for trial. Hence, he is committed to the Hon’ble
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29. The relevant portion of the letter dated 1.8.2019 issued by Dr.Jassar Abdul
Jabbar, Junior Consultant in Psychiatry, for and on behalf of the Superintendent of the
Govt. Mental Health Centre, Peroorkada, reads as under:
“I may inform the Hon’ble Court that Mr. Mariyappan is currently
better and fit for discharge. He is currently well maintained on
medications. He is aware of charge against him and is able to
understand court proceedings. He is able to interact lawyers. He is
fit to stand trial at present.”
30. On the strength of the above report, and without considering whether the
appellant was capable of raising his defence, the learned Magistrate proceeded to pass
the order of committal, which reads as under:
“This is a case charge sheeted by the Sub Inspector of Police,
Fort Police Station against the accused, alleging the offence
punishable u/s. 302 of IPC.
2. The prosecution case in brief is as follows: On 23.9.2018 at
about 10.00 p.m., at his house, the accused who is having a
suspicious eye on her wife killed her by hitting on her head with a
hammer and slitting her neck with a knife and thus committed the
offence alleged aforesaid.
3. Accused in judicial custody. On production of the accused
before the court, copies of all relevant prosecution records were
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4. On perusal of the case records, it appears to me that the
offence alleged against the accused is exclusively triable by the
Sessions Court. Hence, the case is to be committed to the Hon’ble
Sessions Court, Thiruvananthapuram. Therefore, the case is hereby
committed to the Hon’ble Sessions Court, Thiruvananthapuram
u/s.209 of Cr.P.C.
Issue notice to the Public Prosecutor. Notify him of the
committal of the case and transmit records and material objects to
the Hon’ble Sessions Court as per Rules.
The accused shall be produced before the Hon’ble Court of
Sessions, Thiruvananthapuram as and when required by the court.”
31. A perusal of the committal order would reveal that the learned Magistrate
has not recorded in the order as to what all had transpired prior to the order of
committal. It is evident that the learned Magistrate has mechanically passed the order
without satisfying that the court considers him capable of making his defence.
32. We shall now deal with the legal contentions.
33. Section 328 of the Cr.P.C. provides for the provisions as to accused persons
of unsound mind. The said provision reads as under:
Section 328 – Procedure in case of accused being lunatic.
(1) When a Magistrate holding an inquiry has reason to believe that
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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 a
witness and shall reduce the examination to writing.
(1A) 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
(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.
(3) If such Magistrate is informed that the person referred to in
sub-section (1A) is a person of unsound mind, the Magistrate shall
further determine whether the unsoundness of mind renders the
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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 accused in respect of whom a finding of unsoundness
of mind is arrived at, he shall postpone the 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 (1A) 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.
34. Section 328 of the Cr.P.C. provides the procedure to be followed in case of
the accused being lunatic. Under sub-section (1), when a Magistrate holding an enquiry
has reason to believe that the person against whom the inquiry is to be held, is of
unsound mind consequently incapable of making his defence, the Magistrate shall
enquire into the fact of such unsoundness of mind, and shall cause such person to be
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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 a
witness and shall reduce the examination to writing. Sub-section (2) provides that
pending such examination and inquiry, the Magistrate may deal with that person in
accordance with the provisions of Section 330 of the Cr.P.C. Sub-section (3) provides
that if the Magistrate is of the opinion that person referred to in sub-section (1) is a
person of unsound mind and consequently, incapable of making his defence, he shall
record a finding to that effect and shall postpone further proceedings in the case.
35. It is obvious on a plain reading of the provision that the legislature did not
want a person of unsound mind and one who is incapable of making his defence to be
tried merely because an officer has chosen to lay a charge against him. If the accused
is actually of unsound mind, he may not be able to effectively defend himself and is
thrown at the mercy of the court whose duty is to offer the accused all reasonable
assistance. The first thing and perhaps the most important thing is to place the
prisoner suspected of being of unsound mind under medical observation promptly, so
that when the case comes up for trial, there would be reliable medical evidence of the
state of mind of the accused. The evidence of the Civil Surgeon whose services sought
by the learned Magistrate cannot be regarded as the evidence produced by the
prosecution. It is the duty of the Magistrate to examine the Civil Surgeon and take such
other evidence as is available to determine the state of mind of the accused.
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36. In Dr Jai Shanker (Lunatic) Through Vijay Shanker Brother
Guardian v. State Of Himachal Pradesh7, the Apex Court, while dealing with
Section 464 of the Old Code, which corresponds to Section 328 of the Code of Criminal
Procedure, 1973, held as under:
“7. The situation arising in this case is governed by Section 464 of
the Code which lays down the procedure which a Magistrate is enjoined
upon to follow when an accused person alleges that he is suffering from
such mental infirmity as to render him incapable of making his defence.
The unsoundness of mind dealt with in this section is the one which such
an accused person alleges to be suffering from at the time of the inquiry
before the Magistrate and not one at the time of the incident during which
he is said to have committed the offence in question. The section in plain
terms provides that if the Magistrate holding the inquiry (in the present
case the committal proceedings) has reason to believe that the accused at
that point of time is suffering from unsoundness of mind, and consequently,
is incapable of making his defence, he shall institute an inquiry into the fact
of such unsoundness and shall cause the accused to be examined by a civil
surgeon of the district or such other medical officer as the State
Government directs. It is clear from the mandatory language of the section
that the first thing that the Magistrate has to do is to decide, when an
accused person is brought before him who is suspected or alleged to be a
person of unsound mind and before he proceeds with the inquiry, whether
such person appears to him to be of unsound mind. The words “reason to
believe” indicate that when an accused person is presented before a
Magistrate for inquiry, who, it is alleged, is suffering from unsoundness of
mind, the Magistrate has, on such materials, as are brought before him, to
inquire before he proceeds with the inquiry whether there are reasons to
7
[1973 SCC CRI 145]
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The next step is that if he has such reasons to believe, he is to institute an
inquiry into the fact of unsoundness of mind and cause him to be examined
by the civil surgeon or such other medical officer as the State Government
directs. Therefore, when a question is raised as to the unsoundness of
mind of an accused person, the Magistrate is bound to inquire before he
proceeds with the inquiry before him whether the accused is or not
incapacitated by the unsoundness of mind from making his defence. Such a
provision clearly is in consonance with the principles of fair administration
or justice.”
37. In Prakash Nayi v. State of Goa8, the Apex Court had occasion to
explain the scope and ambit of Chapter XXV of the Code of Criminal Procedure, 1973. It
was observed as under:
15. Chapter XXV of the Code of Criminal Procedure, 1973
(hereinafter “CrPC“), though procedural in nature, also becomes
substantive when it deals with an accused person of unsound mind. A
well-laid procedure is contemplated under Sections 328 to 339 CrPC. There
is not even a need for an application under Section 329CrPC in finding out
as to whether an accused would be sound enough to stand a trial, rather it
is the mandatory duty of the court. Under Section 330, the court can even
go to the extent of discharging such a person if his inability to stand trial
continues with a rigid chance of improvement. As per Section 334 CrPC, the
judgment of the court shall include a specific finding that the act was
committed due to unsoundness of mind, though it was actually done. The
reason is simple as there cannot be an acquittal on the ground of8
[(2023) 5 SCC 673]
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16. The whole idea under the provisions discussed is to facilitate a
person of unsound mind to stand trial, not only because of his reasoning
capacity, but also to treat him as the one who is having a disability. The
role of the court is to find the remedial measures and do complete justice.
38. In Babu Valleriyan v. State of Kerala9, a judgment rendered by one
among us (Raja Vijayaraghavan. J), this Court, while dealing with the objectives of the
statute and the overarching need to scrupulously follow the provisions of Sections 328
and 329 of Cr. P.C. held thus:
“9. The primary objective of the law of Criminal procedure is to
ensure that accused persons are granted a fair trial. The right to be
informed of the accusation and an opportunity to prefer defence is granted
to the accused by the Code. The accused is also having a right under
Section 303 of the Code to be defended by a pleader of his choice.
10. An accused, who is of unsound mind at the time of the enquiry or
trial, may not be able to comprehend the gravity of the charges levelled
against him. He certainly would not be in a position to explain the alleged
criminal conduct. The accused being the alleged perpetrator of the crime
would be the person having the best knowledge of his own activities in
relation to the incriminating circumstances. If, due to unsoundness of mind,
he is unable to provide this vital information to his counsel, his defence
cannot be conducted to his best advantage. If the inquiry or trial is
proceeded with in his absence, the accused will not be in a position to
impart instructions to his counsel to enable him to effectively cross examine
the witnesses. He would also not be in a position to explain the9
[(2019 (1) KHC 852)]
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Crl. A. No. 1754/2023 :25:incriminating circumstances which emanates from the prosecution evidence
when he is questioned under Section 313 of the Code. It is for these
reasons that provisions have been incorporated in the Code which lays
down that the inquiry proceedings or trial of a person, who is incapable of
defending himself due to unsoundness of mind, be postponed till he is able
to understand the proceedings. The salutary intention being to ensure that
an accused incapacitated due to unsoundness of mind is not denied his
basic human right to have a fair trial.”
39. Section 330 of the Cr.P.C. deals with the release of a person of unsound
mind pending investigation or trial, whereas Section 331 of the Cr.P.C. deals with the
resumption of enquiry or trial.
40. We are in this case concerned with Section 332 of the Cr.P.C. which
provides for the procedure on the accused appearing before Magistrate or court.
Section 332 of the Cr.P.C reads as under:
Section 332 – Procedure on accused appearing before Magistrate or Court
(1) If, when the accused appears or is again brought before the
Magistrate or Court, as the case may be, the Magistrate or Court considers
him capable of making his defence, the inquiry or trial shall proceed.
(2) If the Magistrate or Court considers the accused to be still incapable
of making his defence, the Magistrate or Court shall act according to the
provisions or section 328 or section 329, as the case may be, and if the
accused is found to be of unsound mind and consequently incapable of
making his defence, shall deal with such accused in accordance with the
provisions of section 330.
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41. The above provision mandates the procedure to be followed when a
person, who has been prima facie found to be of unsound mind under Section 328 or
Section 329 of the Cr.P.C., is again brought before the Magistrate or court. The section
requires the court to consider and satisfy itself as to whether the accused is now
capable of making his defence. If, upon consideration of the material on record and
application of judicial mind, the court comes to the conclusion that the accused is
indeed capable of making his defence, the inquiry or trial may proceed. However, if the
Magistrate or Court finds that the accused continues to be incapable of making his
defence, the law mandates that the procedure under Section 328 or Section 329 of the
Cr.P.C. must again be followed. Should the court, after such further inquiry, find that the
accused remains of unsound mind and is consequently incapable of defending himself, it
is duty-bound to proceed in accordance with the provisions of Section 330 of the Cr.P.C.
42. In the case at hand, the trial of the accused was postponed on account of
his unsoundness of mind by invoking Section 328 of the Code of Criminal Procedure. If
that be the case, the same could be resumed by the Trial Court only if the accused has
ceased to be of unsound mind. In this regard, Section 331 is very much clear. Under
Section 332, Cr.PC if the accused appears again before the Court and the Court finds
him capable of making his defence, it shall proceed with the trial. Thus, the satisfaction
of the Court on the basis of material placed on record is paramount consideration.
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43. While taking a decision either way under Section 332 of the Cr.P.C., it
would be incumbent upon the learned Magistrate to record his reasons. This is because
three courses are open to the Court. The Court can –
(a) consider the accused capable of making his defence and proceed with
the inquiry or trial;
(b) If the Court may consider the accused to be still incapable of making
his defence, the Magistrate or Court shall act according to the
provisions of Sections 328 or section 329 of the Cr.P.C., as the case may
be;
(c) If the accused is found to be of unsound mind and consequently
incapable of making his defence, the Court shall deal with such accused
in accordance with the provisions of Section 330 of the Cr.P.C.
44. The word “considers” appearing in Section 332 of the Cr.PC empowers the
Court not only to examine the Medical Certificate and also the doctor, if necessary, but,
also should consider other factors and the accused should also be interrogated by the
Court and only after due application of mind the Court should come to the conclusion
that accused is capable of making of his defence. This exercise should be strictly carried
out because it relates to the defence of the accused which is his valuable right and also
relates to personal liberty of the accused. The aim and object of the provisions as to
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accused persons of unsound mind found in Chapter XXV of the Code is that the accused
who is of unsound mind should not be put to trial because he is unable to defend
himself and, therefore, there must be a specific order of the Court recording a finding
that insanity of the accused has been ceased and he is in fit mental condition to defend
himself. The Magistrate or court cannot mechanically or blindly rely on a medical
certificate issued by a psychiatrist as if it is the end of the matter. Judicial satisfaction
must be recorded after independent scrutiny of the facts and circumstances to ensure
that the rights of the accused are fully safeguarded. If the accused is put to trial
without arriving at the above independent satisfaction and by recording a finding to that
effect, the trial itself will be vitiated.
45. The very same question had come up for consideration before a Division
Bench of the Gauhati High Court in Saikhom Ramo Singh (supra). The question
before the Bench was whether Sections 331 and 332 of the Cr.P.C. require the court to
record reasons for its conclusion that the accused is capable of making his defence. An
incidental question that arose was whether it would be sufficient for the court to merely
rely on the report of the jail authorities or the medical treatment records when
determining the mental fitness of the accused. Their Lordships have held that the use of
the word “considers” in Section 332 of the Cr.P.C. axiomatically implies that the court’s
duty goes beyond simply accepting a medical certificate or a report from the jail
authorities. The court is required to apply its independent judicial mind to the issue.
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This obligation entails not only examining the medical certificate and, if necessary,
examining the doctor concerned and the accused, but also taking into account all other
relevant factors. It is only after such comprehensive consideration that the court can
justifiably arrive at the conclusion that the accused is capable of making his defence.
The same view was taken by the Madhya Pradesh High Court in State of Madhya
Pradesh vs. Dilip Bankar10.
46. The sequence of events and the proceeding sheet of the learned
Magistrate in the instant case would emphatically make it clear that the court at the
stage of Section 328 of the Cr.P.C. examined the accused and ascertained whether he
was fit to face trial. It was when he deposed before the court that he did not
understand the proceedings that directions were issued to the jail authorities to obtain a
report from the concerned medical personnel. The reports dated 05.11.2018 and
18.12.2018 issued by the Psychiatrist clearly revealed that the appellant was suffering
from a serious form of Bipolar disorder, infidelity, delusions etc. It was in the said
circumstances that the committal proceedings were deferred. But, later, when the
accused was again brought before the learned Magistrate, the court merely perused the
report of the Superintendent and without any application of mind proceeded to commit
the accused for trial. In the order dated 29.08.2019, the reasons which persuaded the
learned Magistrate to ‘consider him capable’ of making his defence has not been
mentioned. The committal order is also silent with regard to the above mandatory
10
ILR [2009] MP309
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Crl. A. No. 1754/2023 :30:
aspects. A reading of the report issued by Dr. Jassar Abdul Jabbar, Jr. Consultant in
Psychiatry, only states that he is currently better and fit for discharge. The Doctor, in his
report, states that the appellant is aware of the charge against him and is able to
understand court proceedings. He is also able to interact with lawyers and, therefore,
fit to stand trial at present. These are matters for the Court to decide and not for a
Junior Consultant to dictate. The learned Magistrate has unfortunately, abdicated his
duty by merely relying on the words of the Junior Consultant. By such callous inaction,
the right of the appellant to have a fair trial has been impacted adversely.
47. In Rattiram v. State of M.P11, the Apex Court dealt with the concept of
“fair trial” and its significant facets. It was held that once prejudice is caused to the
accused during trial, it occasions in “failure of justice”. It was observed as under:
“42. It would not be an exaggeration if it is stated that a “fair trial” is
the heart of criminal jurisprudence and, in a way, an important facet of a
democratic polity that is governed by rule of law. Denial of “fair trial” is
crucifixion of human rights. It is ingrained in the concept of due process of
law. While emphasising the principle of “fair trial” and the practice of the
same in the course of trial, it is obligatory on the part of the courts to see
whether in an individual case or category of cases, because of
non-compliance with a certain provision, reversion of judgment of
conviction is inevitable or it is dependent on arriving at an indubitable
conclusion that substantial injustice has in fact occurred.”
11
[(2012) 4 SCC 516]
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48. We have no doubt in our mind that the appellant had been denied a fair
trial in view of the total non-compliance of the procedure contemplated under Section
332 of the Cr.P.C. In that view of the matter, we hold that the order of committal passed
by the learned Magistrate is vitiated. If the order of committal is bad, the trial held
consequent thereto also is vitiated, and the conviction arrived at cannot be sustained.
In that view of the matter, we have no other go but to allow this appeal.
49. Resultantly, the judgment passed by the learned Sessions Judge, finding
the appellant guilty of the offence under Section 302 of the IPC is overturned. The
committal order passed by the learned Magistrate in C.P. No. 60 of 2018 on the file of
the Judicial Magistrate of First Class-II, Thiruvananthapuram, is also set aside. The
matter is remitted back to the learned Judicial Magistrate of First Class-II,
Thiruvananthapuram for fresh consideration in accordance with law. The learned
Magistrate shall conduct an inquiry under the relevant provisions of the Code and
satisfy that the appellant was fit to stand trial and capable of making his defence before
committing the case. The learned Magistrate shall conduct an inquiry under Section
328(1) of the Cr.P.C. and if it is found that, because of unsoundness of mind, the
accused is incapable of making his defence, further proceeding shall be postponed after
recording a finding to that effect. The learned Magistrate shall then decide whether the
accused is to be released under Section 330 of the Cr.P.C. In that event, the
proceedings can be resumed only as provided under Section 331 of the Cr.P.C. If it is
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found on inquiry that the appellant is of sound mind and that he is capable of making
his defence in the case, the learned Magistrate shall commit the case to the Court of
Session.
This appeal will stand allowed subject to the above observations. The Registry
is directed to forward the records back to the committal court forthwith.
Sd/-
RAJA VIJAYARAGHAVAN. V,
JUDGE
Sd/-
K.V.JAYAKUMAR,
JUDGE
PS /20/6/25