S.329(2) CrPC | Physical Presence Of Accused Essential For Determining Unsoundness Of Mind Making Him Incapable To Enter Defence: Orissa High Court

The Orissa High Court has clarified that physical presence of accused in the Court is essential, under Section 329(2) of the Code of Criminal Procedure, to assess if unsoundness of mind renders him incapable to enter defence. It underlined that the concerned Court must not pass order to that effect without examining the accused, merely basing upon medical certificate.Elucidating the point of law, the Single Judge Bench of Justice Radha Krishna Pattanaik said,“…to determine the mental faculty of the accused and whether he is capable to defend himself, it shall have to be assessed by the Court and for the said purpose his examination is necessary and the same is the statutory mandate. Merely by referring to the medical papers and certificate of the Medical Board, a Court is not to pass any such order either discharging him or postponing the trial.”The petitioner was charge-sheeted under Section 376(3) IPC besides Section 14(A) of Child Labour (Prohibition) Act along with Section 6 of the POCSO Act r/w Section 3(1)(r) and 3(2)(v) (va) of SC & ST (PoA) Act. It is said that the petitioner suffers from Dementia since last 6 years as certified by the Medical Board and the said fact was intimated to the Trial Court by stating that he is a person of unsound mind and hence to be proceeded with in terms of Section 329 of the CrPC, which deals with procedure when a of person of unsound mind is tried. An application on behalf of the petitioner was moved in that respect for consideration. However, in the said proceeding, the Court below directed the petitioner to physically appear in order to decide the future course of action. Being aggrieved by the same, the petitioner approached the High Court.It was argued that since the Medical Board has already certified the petitioner to be suffering from Dementia with definitive cognitive impairment behaviour and psychological symptom and duly diagnosed by the doctors of Capital Hospital and AIIMS, Bhubaneswar, there was no need of any further examination. Thus, the direction of the court below is not in accordance with law.On the other side, it was submitted for the State that the procedure which has been followed by the Trial Court is in line with the provision of law since the physical presence of the petitioner is necessary to determine as to whether unsoundness of mind has in fact rendered him incapable to enter defence, as the same is a requirement under law in view of Section 329(2), CrPC.Court’s OrderAfter going through the sub-section (2) of Section 329 CrPC, the Court was of the view that if the Magistrate or Court is informed that a person to be tried is of unsound mind, it shall determine whether such unsoundness renders him incapable to defend. If the accused is found incapable, the said finding should be recorded. Thereafter, the Court shall examine the record of evidence produced by the prosecution and then to proceed either to discharge him if no prima facie case is found against him and dispose of the matter in the manner prescribed under Section 330 CrPC or to postpone the trial, if a prima facie case is made out, for such period as is required for his treatment.“There is no denial to the settled position of law that if an accused suffers from any disability affecting his cognitive capacity, the procedure as prescribed in Section 329(2) Cr.P.C. has to be followed and in order to assess whether he can defend himself during the trial or not, it has to be determined and for the said purpose, the learned court below in the case at hand was justified in insisting upon the petitioner’s physical presence which is as per and in accordance with law and thus, it calls for no interference,” the Court concluded.Accordingly, the criminal miscellaneous case was dismissed denying the relief.Case Title: Prafulla Chandra Mohapatra @ Prusty v. State of OdishaCase No.: CRLMC No. 2614 of 2022Date of Judgment: March 22, 2023Counsel for the Petitioner: Mr. Debasnan Das, AdvocateCounsel for the State: Mr. Tapas Kumar Praharaj, Standing CounselCitation: 2023 LiveLaw (Ori) 50Click Here To Read/Download Judgment

S.329(2) CrPC | Physical Presence Of Accused Essential For Determining Unsoundness Of Mind Making Him Incapable To Enter Defence: Orissa High Court

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