K.D. NINAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Revision petitioner is challenging the dismissal of his petition filed under section 328 of Code of Criminal Procedure by Judicial I Class Magistrate, holding that the petitioner is fit to stand for trial and there is no necessity to stay the proceedings. Petitioner is facing trial for the offence under Section 420 of IPC. While the case was pending, petitioner filed C. M. P. 10003/04 with a medical certificate contending that he is suffering from severe mental illness and therefore the trial of the case has to be postponed. On receipt of the petition, learned Magistrate directed the petitioner to be present. The doctor who issued Ext. P1 certificate was examined as PW1. On the basis of the evidence learned Magistrate found that he is of the opinion that there is no sufficient material on record to hold that petitioner is suffering from any mental infirmity of such a nature which would incapacitate him from defending the allegations raised against him in the case and the petition was dismissed. The case of revision petitioner is that learned Magistrate has not properly appreciated the case and as proved by the examination of PW1 petitioner is being treated for the mental illness for the last several years and in such circumstances, court below should have postponed the proceedings as provided under sub-section (3) of Section 329 of the Code of Criminal Procedure.

(2.) Section 328 provides the procedure in case of an accused being mentally unsound. Under sub-section (1) when the Magistrate holding an enquiry has reasons 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 enquire 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. Under sub-section (3) of Section 328, if the Magistrate is of the opinion that the person referred to in sub-section (1) is 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.

(3.) Under sub-section (1) it is mandatory that when there is reason to believe that a person against whom enquiry is held is of unsound mind, the learned Magistrate shall cause that person to be examined by the Civil Surgeon of the district or such other medical officer as the State Government may direct. After such examination the doctor has to be examined. Thereafter the Magistrate has to decide whether that person is fit to stand for trial or not. Unfortunately learned Magistrate did not comply with the procedure as provided under sub-section (1) of Section 328 of Code of Criminal Procedure. Petitioner had produced Ext. P1 medical certificate from PW1 who is a private practising psychiatrist and after examining the doctor the petition was dismissed. The learned Magistrate has not even examined the petitioner to find out whether he is fit to stand for trial. The learned Magistrate should have sent the petitioner for examination by a Civil Surgeon of District who is competent to decide whether he is mentally ill or not. Therefore the impugned order passed without complying with the provisions of sub-section (1) of Section 320 is not sustainable.