DEEPIKA K THUSOO Vs. STATE

JUDGEMENT

(1.) ARREST of one Smt. Bhago, a Pak national traceable to the alleged commission of offence punishable under sections 2/3 of Egress and Internal Movement Control Ordinance and 3/6 of Indian Passport Act, resulted in presentation of a challan before the Learned Munsiff Judicial Magistrate, Akhnoor. The accused looking like a lunatic was committed to the judicial custody with a direction for here medical examination by a qualified Psychiatrist deferring the proceedings in the case. Such course of action appears to have been adopted to arrive at a conclusion, whether or not the accused is of unsound mind. Annexing a communication of the Medical Officer addressed to the Superintendent Jail indicating signs of depression on the person of the accused, the petitioner has called in question here judicial custody by medium of this habeas corpus petition alleging abridgement of right to liberty in contravention of constitutional provision. The contention is urged simply to be rejected for, the power to detain an accused for the purposes of trial flows very explicitly from the statute, well recognized by the Constitution and it is in exercise of such power that the Magistrate has committed the accused to the jail custody. The order being within this jurisdiction no law is breached, contention fails.

(2.) NEXT it was contended that the order of the Magistrate is violative of very purport of Section 466 of the Code of Criminal Procedure (for short Cr. P.C.) To appreciate the argument reference to Section 464 of Cr. P.C. becomes relevant. Its bare perusal makes it manifest that when a Magistrate holding an enquiry or trail has the reason to believe that the accused is of unsound mind and consequently incapable of making his defence, the Magistrate shall enquire into the fact of unsoundness of mind causing such person to be examined by the Chief Medical Officer or Medical Officer. Pending such examination he has the discretion to deal with the accused vide Section 466 Cr. P.C. which empowers the Magistrate to release a lunatic on bail pending investigation or trial on the conditions stipulated therein.

(3.) IN the case on hand the opinion of the Chief Medical Officer/Medical Officer about lunacy or otherwise of the accused is yet to be framed and communicated to the Magistrate. It being so the Magistrate has not been in a position to consider the issue of unsoundness of mind. Having regard to the mandate of Section 466 Cr. P.C. bail can be granted if the Magistrate is satisfied that the accused is of unsound mind. Admittedly, the satisfaction is not derived by the Magistrate as yet, therefore, in the absence of satisfaction of the Magistrate about the unsoundness of mind, Section 466 Cr. P.C. is not attracted and the judicial custody of the accused cannot be said to be ultra vires and Habeas Corpus would not be available to undo the order permissible under statute passed by the competent Court of jurisdiction.