STATE Vs. OUSEPH THOMAS

JUDGEMENT

(1.) This application is brought on behalf of the State in respect of a direction made by the additional Sessions Judge of Kottayam in Sessions Case No. 19 of 1950. The accused in that case was charged with having brutally murdered his fathers mother. The learned trial Judge on hearing the evidence arrived at the conclusion that he had caused the death of the victim in the manner alleged by the prosecution, but that at the time that he did it, owing to unsoundness of mind, he was not able to understand the nature of the act he was doing. In the circumstances, the learned Judge, instead of sending him to jail, has directed that the accused shall be placed in safe custody under the protection and care of his father Thomas Ouseph, PW 2, and either Ulahannan Devasia, the second surety in Ext. I, surety bond dated 11.8.1122 or any one of the brothers of PW 2 (PW 2 or PW 4) upon their executing a fresh bond for the purpose .......................................... On behalf of the State it is contended by the learned Public Prosecutor, that this direction is opposed to the provisions of S. 384 of the Travancore Code of Criminal Procedure according to which the direction to be given by the court in similar circumstances is that the accused shall be detained in safe custody in such place and manner as the court thinks fit and shall report the action taken to the Government. Before the section was amended, the wording was slightly different. After the amendment, which brings it into conformity with the latest provisions of the Indian Criminal Procedure Code S.471, the learned Public Prosecutor contends that there can no longer be any direction that the accused person in such circumstances could be entrusted to the safe custody of his relations. In support of his contention the learned counsel relies upon a number of decisions of the Indian High Courts. It is enough to refer to two of these decisions. The first is reported in AIR 1928 Cal. 653 where it is clearly laid down that detained in safe custody under S. 471 of the Indian Criminal Procedure Code does not mean detained in the custody of friends or relatives. What a court has to do under this section is to detain the accused in safe custody and report the matter to the local Government. It is the local Government that is given the power under S.475 of the Indian Criminal Procedure Code, to direct that the accused shall be delivered to any relative or friend of his for safe custody and not the court. A similar view was adopted by the Madras High Court in the case reported in AIR 1948 Mad. 291 . The learned Public Prosecutor at the same time invites the attention of the court to a decision reported in 1948 TLR 907 where a different view was expressed by the learned Judges who were responsible for that judgment. The learned Public Prosecutor submits that this is an erroneous decision which was based upon a misunderstanding of the wording of the proviso to S.384 of the Travancore Criminal Procedure Code which refers to the Travancore Lunacy Act of 1110. As pointed out by the learned Public Prosecutor, persons sent to the Mental Hospital under the provisions of the Travancore Lunacy Act are not necessarily criminal lunatics. They may be innocent of any crime, but at the same time they may be liable to be confined in the Mental Hospital and therefore any rule made under the Travancore Lunacy Act cannot have application to the provisions of S. 384 of the Travancore Criminal Procedure Code which is meant to apply to criminal lunatics or persons who at the time they committed a heinous crime as in the present case could not understand the nature of such act, as a result of unsoundness of mind. Those contentions are well founded. It is not possible for this court to adopt the view expressed by the erstwhile Travancore High Court in the case reported in 1948 TLR 907.

(2.) Following the view taken by the Indian High Courts the decisions of two of which have already been adverted to the order made by the Court below must be set aside. There will be a direction that the accused shall be detained in custody in the Central Prison at Trivandrum and the matter reported to the local Government for such orders as the Government have jurisdiction to pass.