ANSAR AHMAD Vs. STATE

JUDGEMENT

(1.) The petitioner is aggrieved of an order dated 27th November 1987 directing the issuance of a non-bailable warrant against the accused as also the warrant of attachment against the surety who in fact is the petitioner.

(2.) It appears that the accused is being prosecuted for offences under sections 506/323, of the Indian Penal Code. The accused who is the son of 22 the petitioner at the relevant time, it seems, was undergoing treatment in the All India Institute of Medical Sciences for schizophreina and according to the petitioner he fled from his house on 8th of August 1987 and was recovered from Kanpur and brought back to Delhi on 17th November 1987. On 17th March 1987 the petitioner had moved an application before the trial court that since the accused, that is his son, was of unsound mind the procedure laid down in section 329 Cr. P.C. be followed. This was accompanied by a medical certificate to the effect that the accused is of unsound mind. On the basis of this application and the medical certificate the accused was exempted from personal attendance and the proceedings were adjourned to 23rd April 1987, The doctor issuing the certificate regarding the unsoundness of the accused was also summoned. On 28th of July 1987, it seems, the presiding officer of the court was replaced by another gentleman Shri D.S. Pawaria who suddenly dropped the proceedings under section 329 Cr.P C. and ultimately passed the impugned order.

(3.) I am surprised that the learned Magistrate in his desire to dispose of the cases should have resorted to this undesirable procedure. The manner in which he has conducted himself is highly questionable. The mandate is that if an accused is incapable of defending himself the proceedings ought to be postponed till his capacities to make his defence are restored. There is an application supported by a medical certificate on the record and the learned predecessor of the learned Magistrate concerned had also summoned the doctor to make enquiry into the unsoundness of the mind of the mind of the accused. Instead of conducting this enquiry, the learned Magistrate without any rhyme or reason seems to have dropped the proceedings without recording a finding that the accused was of sound mind and was capable of making his defence. This is most improper. Consequently, any punitive orders passed against the accused or the surety are not only improper but uncalled for. The Magistrate has no jurisdiction to issue a warrant of arrest against a person I who is of unsound mind.All he can do in case of such a person is to postpone the proceedings till his capacities to defend himself properly are restored. If an accused person is of unsound mind, there is no question of proceeding against the surety. In that view of the matter, it seems to me that the way in which the learned Magistrate has conducted himself is highly objectionable and unjust. In doing so he has followed the procedure and has devised his own procedure. The petition, therefore, is allowed and the impugned order dated 27th November 1987 is set aside. The learned Magistrate is directed that he shall conduct an enquiry into the-application of the petitioner regarding the unsoundness of the mind of the accused person .as envisaged by section ^329 Cr. P.C. and should he come to the conclusion that the accused is of unsound mind he shall postpone the proceedings as mandated by section 329 Cr. P.C. The petition is disposed of accordingly.