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PETITIONER: DR. JAI SHANKER (LUNATIC)(through Vijay Shanker brother guar

       Vs.

RESPONDENT: STATE OF HIMACHAL PRADESH

DATE OF JUDGMENT30/08/1972

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. DUA, I.D. KHANNA, HANS RAJ

CITATION:  1972 AIR 2267            1973 SCR  (2)   1  1973 SCC  (3)  83

ACT: Code  of  Criminal  Procedure, 1898,  Sec.  464  "Reason  to believe that the accused is of unsound mind and consequently incapable   of  making  his  defence"-Belief  must   be   of reasonable person-Enquiry into the facts by a Magistrate  of unsoundness is mandatory and to be held at threshold  before proceeding with the case.

HEADNOTE: The appellant was charged of committing the murder at  Kulu. His  advocate made an application to the Magistrate of  Kulu u/s Sec. 464 of the Code of Criminal Procedure stating  that the   accused  has  symptoms  of  impairment  of   cognitive faculties  of mind and otherwise of an  abnormal  behaviour, with  a  prayer  to  remove  the  appellant  to  the  mental hospital.  the Trial Magistrate came to the conclusion  that the appellant was not suffering from unsoundness of mind, on the  basis  of  the application made by  the  appellant  for remitting the money seized from his person to his mother and on the basis of replies to the question put to the appellant regarding the supply of copies of documents relied on by the prosecution.  A revision application filed by the  appellant against  the rejection of the application was  dismissed  by the  Sessions  Court.  On revision to the  High  Court,  the learned  single Judge directed that the appellant should  be examined   and  kept  under  observation  in  the   Snowdown Hospital,  Simla,  which is a general hospital.   After  the examination  by  two psychistricts at Simla  hospital,  they recommended  the examination of the appellant in the  proper mental hospital.  As the recommendation was not carried  out the  appellant moved the High Court under section 561(A)  of the  Code for the implementation of the earlier order.   The High  Court  clarified the earlier order  and  rejected  the application  u/s 561(A) holding that the order was  complied with.  On an application for review, the High Court observed that  whether  the  recommendations of  the  Simla  Hospital should  or should not be followed lay within the  powers  of the  trial Magistrate.  The trial  Magistrate  misunderstood the order to mean that no preliminarly enquiry, as  required by  Sec.  464 ’was necessary and committed  the  appellant’s case  for trial by Sessions Court.  The committal order  was

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challenged  by  the  appellant by way  of  revision  in  the Sessions Court, and then in the High Court.  The High  Court held that the committing Magistrate had sufficient  material to  believe  that  the  appellant  was  not  suffering  from unsoundness  of mind and therefore it was not necessary  for him to act under Sec. 464. Allowing the appeal, HELD  : The words "reason to believe" mean a belief which  a reasonable person would entertain on facts before him.   The burden  was  on  the  appellant to  establish  that  he  was suffering  from  the unsoundness of  mind.   The  provisions regarding  the  enquiry  in  the  unsoundness  of  mind  are mandatory  and the Magistrate is bound to enquire before  he proceeds  with the case.  Such enquiry is to be held at  the threshold.  The trial Magistrate did not hold such  enquiry and did not call upon the appellant to establish the  mental infirmity.  The proper course for the Magistrate in view  of the directions of the High Court and the provisions of  Sec. 464  was  to send the appellant to the mental  hospital  for observations. [9 A] 2-L348Sup.C.I./73 2 Both the committal order and the High Court’s order were set aside  and  the  trial Magistrate was directed  to  hold  an enquiry  u/s  464 and give opportunity to the  appellant  to produce the evidence regarding his unsundness of mind.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 279 of 1971. Appeal  by special leave from the judgment and  order  dated September  17, 1971 of the, Himachal Pradesh High  Court  at Simla in Criminal Revision No. 17 of 1971. R.   L. Kholi, for the appellant. V.   C. Mahajan and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by SHELAT,  ACTING  C.J.-The appellant was  charged  of  having committed  on April 24, 1970 the murder of a  lady  doctor, Dr. Vaidya, at Kulu.  On May 4, 1970, he was arrested on the aforesaid allegation.  On May 9, 1970, his advocate made  an application before the Magistrate, Kulu under s. 464 of  the Code  of Criminal Procedure, 1898.  The  application  stated that  the  advocate  had interviewed the  appellant  in  the judicial lock-up where he was detained and found him talking incoherently  and  showing  symptoms of  impairment  of  the cognitive  faculties  of mind and otherwise of  an  abnormal behaviour.   The applicant prayed that he should be  removed to the mental hospital at Amritsar for ascertaining  whether he  was in a position to make his defence.  Since there  was no response to the said application, a similar  application was  again addressed to the Magistrate on June 3, 1970.   To this application were annexed three medical certificates  by Dr.  B. N. Sur, Dr. Pathak and Dr. K. P. Singh  respectively dated  May  10, 1970, May 15, 1970 and May 9, 1970  all  the three  certifying  that  even  as  a  medical  student   the appellant  had shown signs suggesting unsoundness  of  mind. In  the meantime the case was transferred to the  Court  of the  District Magistrate, Bilaspur.  On September 11,  1970, the appellant’s advocate once again filed an application for medical  check  up  setting out  therein  various  instances displaying  abnormal and strange conduct on the part of  the appellant  right from his student days, as also  during  the proceedings  in  the  Court  on August  31,  1970  when  the

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appellant, amongst other things, proclaimed that he was Lord Vishnu and the ruler of Delhi.  By his order dated September 23,  1970, the Magistrate rejected the  application  stating that  he had no reasons to doubt the appellant’s sanity  and decided to proceed with the committal proceedings.  In  this order  the  Magistrate  cited an  application  made  by  the appellant  on July 26, 1970 for remitting to his mother  the money  seized by the police from his person at the  time  of his arrest, as also his replies 3 to the questions put to him if copies of documents relied on by the prosecution were supplied to him under s. 173 of  the Code.  This was done with a view to show that the  appellant understood  the proceedings and their nature.  Against  this order  a revision application was filed before the  Sessions Judge.   That was dismissed by an order dated  November  20, 1970.   A further revision against that dismissal  was  then filed before the High Court. By  his  order  dated December  23,  1970,  Rangarajan,  J., ordered  that "the larger interests of justice require  that the accused should be examined for his mental condition  and that  such  an inquiry should not in all  fairness,  and  in order to be directly useful, be still further delayed".  The learned Judge directed that the appellant should be produced before the Medical Superintendent, Snowdoon Hospital,  Simla for  his  examination by a competent doctor  or  doctors  by keeping  him  in  observation  for such  time  as  might  be considered   necessary.   He  further  directed   that   the Superintendent should forward a report of the result of such examination  to  the  committing magistrate  "who  will  act according to law in the light of such report". Pursuant  to the said order, the Superintendent  of  Snowdon Hospital  sent  his  report dated January  7,  1971  to  the Magistrate  stating that the appellant had been examined  by Dr.  V.  K.  Mudgil,  Assistant  Professor  of   Psychistry, Himachal Pradesh Medical College and Hospital, who  reported that from a mere examination of the appellant in Psychistric Out  Patient Department it was difficult to give an  opinion on   the  appellant’s  mental  condition,   and   therefore, recommended  that he should be sent to some mental  hospital for  observation.   To an inquiry by the  Magistrate,  dated January  11, 1971, the Snowdon Hospital authorities  replied on  January 19, 1971 that the hospital had no provision  for admission  as in-door patients and care of alleged  lunatics and  once again suggested that the appellant should be  sent to  a mental hospital.  It appears that at the  instance  of the  committing  magistrate  the  appellant  was  thereafter admitted in the Snowdon Hospital as an in-door patient.  The report of the Superintendent dated March 26, 1971 shows that he was examined by the Psychistrist of the Hospital and  the Assistant Professor of Psychistry, both of whom advised  the appellant’s  admission  to  a mental  hospital  for  further examination since a final opinion could only be given on the basis  of psychological tests done by a  qualified  clinical psychologist’ with a trained and experienced nursing staff. The  recommendations  contained in these reports.  were  not carried out.  The appellant, therefore, through his brother, filed an application in the High Court under s. 561A of  the Code praying for implementation of the order of  Rangarajan, J. By its 4 order dated March 30, 1971, the High Court observed that the said  committal proceedings were pending for a  considerable time,  and  referring to the said order of  Rangajaran,  J., observed that it was not for the High Court to intervene  at

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an  interlocutory  stage and that in any event  the  Snowdon Hospital   had  examined  the  appellant  as   directed   by Rangarajan,  J.,  and made its report, and  that  therefore, nothing further remained to be done.  The High Court ordered that that report should go to the committing Magistrate  and it would be for that Magistrate to decide what order  should be passed on the case.  The High Court further observed that it  w as not proper for the High Court to assume the  Magis- trate’s jurisdiction, and that the Magistrate would  without doubt  proceed in accordance with law.  If he found a  prima facie  case, the case should be sent for trial to the  court of  competent  jurisdiction which would decide on  the  plea taken by the appellant.  The committing Magistrate had  only to  see  whether  there  was a  prima  facie  case  and  the truthfulness  of  the  plea  was  for  the  trial  court  to determine.   The appellant, through his brother, then  filed an  application for reviewing the said order.  On  April  5, 1971,  that application was rejected on the ground that  the earlier  order was clear and unambiguous, acrid  that  there was  no  ground  to  review  or  revise  the  same.    While dismissing the said application the High Court observed once again  that it was for the cornmitting Magistrate to pass  a suitable order under s. 464 of the Code, that the High Court ought not to intervene at an interlocutory stage during  the pendency  of  committal  proceedings  and  appropriate   the jurisdiction of a Magistrate.  The High Court also  observed that  the order of Rangarajan, J., had been carried  out  in the  sense  that  the appellant had  been  examined  by  the authorities  of  the Snowdon Hospital as  directed  in  that order   and  those  authorities  had   recommended   further observation of the appellant.  "Whether this could or should be  done  or  not", said the High Court,  "lies  within  the powers of the committing Magistrate to decide". The matter then went back to the committing Magistrate.   On May  4,  1971,  an application was made  on  behalf  of  the appellant  that in view of the aforesaid orders of the  High Court,  the  Magistrate  should direct  that  the  appellant should  be  sent to a mental hospital for  ascertaining  his mental  condition.  Apparently, the last order of  the  High Court  on the aforesaid review application by the  appellant dated  May  4,  1971 had not reached  the  Magistrate.   The Magistrate  without  waiting  for that order  to  reach  him decided to proceed.  It seems that be misunderstood the High Court’s  order to mean that he had been ordered by the  High Court  to  proceed  with the committal  Proccedings  and  to determine whether a prima facie case on the said charge was 5 made  out, or not.  That is clear from his observation  that "the question of the sanity or otherwise of the accused  for purposes  of  standing  his trial as envisaged  by  s.  464, Criminal  Procedure Code, is to be determined by  the  Trial Court".   On that understanding of the order the  Magistrate rejected  the  application  and  proceeded  to  record   the evidence  of  the  prosecution  witnesses.   Next  day,  the Magistrate  passed an order committing the appellant to  the Sessions  Court to stand his trial on the said charge  under s. 303 of the Penal Code. The appellant filed once more a revision application  before the Sessions Court challenging the said order of commitment. The  Sessions Court rejected that application  holding  that the  Magistrate has sufficient grounds to infer  that  there were no reasons to believe that the appellant was of unsound mind,  and that therefore, he was not in a position to  make his  defence and accordingly it was not incumbent  upon  the Magistrate  to  hold  a preliminary inquiry  under  s.  464.

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Aggrieved by the said order, the appellant filed a  revision application  before the High Court challenging the  validity of  the  said committal order.  The High Court  recited  the several  applications filed on behalf of the appellant,  the said order of Rangarajan, J., the two orders passed by  Beg, C.J., and finally, the order of commitment and the order  of the Sessions Judge rejecting the revision filed against  it. The  High  Court  held that there  was  sufficient  evidence before the, committing Magistrate from which that Magistrate could say that he had sufficient reason to believe that  the appellant  was not suffering from any unsoundness  of  mind, and  that therefore, there was no necessity for him  to  act under s. 464.  The High Court further observed that  neither Rangarajan,  J.,  nor  Beg,  C.J.,  had  directed  that  the appellant should be taken to a mental hospital, that on  the contrary, the two orders of Beg, C.J. indicated that it  was left  to  the  discretion of the  committing  Magistrate  to decide  whether  he  had  any reason  to  believe  that  the appellant  was  suffering from any unsoundness of  mind  and that  the authorities of the Snowdon Hospital also  had  not stated   that   the  appellant  was  suffering   from any unsoundness of mind.  The High Court finally held that "from this  point  of  view  the order  of  the  learned  District Magistrate  was  right  and when he did not  find  any  cir- cumstance  to indicate that the accused was of unsound  mind and consequently incapable of making his defence, he rightly proceeded  with the case and made the order of  commitment". It is this order which is under challenge in this appeal. The situation arising in this case is governed by s. 464  of the Code which lays down the procedure which a magistrate is enjoined upon to follow when an accused person alleges  that he is suffering from such mental infirmity as to render  him incapable, 6 of  making his defence.  The unsoundness of mind dealt  with in  this  section is the one which such  an  accused  person alleges  to  be suffering from at the time  of  the  inquiry before  the  Magistrate  and  not one at  the  time  of  the incident  during  which  he is said to  have  committed  the offence  in question.  The section in plain  terms  provides that  if the Magistrate holding the inquiry (in the  present case  the committal proceedings) has reason to believe  that the  accused  at  that  point  of  time  is  suffering  from unsoundness  of  mind,  and consequently,  is  incapable  of making  his defence, he shall institute an inquiry into  the fact  of such unsoundness, and shall cause the accusd to  be examined  by a civil surgeon of the district or  such  other medical  officer  as the State Government  directs.   It  is clear  from the mandatory language of the section  that  the first thing that the Magistrate has to do is to decide, when an accused person is brought before him who is suspected  or alleged  to  be  a  person of unsound  mind  and  before  he proceeds  with the inquiry, whether such person  appears  to him  to be of unsound mind.  The words "reason  to  believe" indicate  that when an accused person is presented before  a Magistrate  for  inquiry, who, it is alleged,  is  suffering from  unsoundness  of  mind, the  magistrate  has,  on  such materials,  as are brought before him, to inquire before  he proceeds  with  the  inquiry whether there  are  reasons  to believe  that the accused before him is suffering  from  any such  infirmity.   The  next step is that  if  he  has  such reasons to believe, he is to institute an inquiry into  the- fact of unsoundness of mind and cause him to be examined  by the civil surgeon or such other medical officer as the State Government directs.  Therefore, when a question is raised as

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to  the  unsoundness  of  mind of  an  accused  person,  the magistrate  is bound to inquire before he proceeds with  the inquiry   before   him  whether  the  accused  is   or   not incapacitated  by  the unsoundness of mind from  making  his defence.  Such a provision clearly is in consonance with the principles of fair administration of justice. From  the  narration of the facts above it is  fairly  clear that right from the commencement of the inquiry applications were  made  before  both  the Magistrate  at  Kulu  and  the Magistrate at Bilaspur, that the accused was suffering  from mental  infirmity and that an inquiry into his mental  state was  necessary.  Indeed, along with the application made  to the  Magistrate at Bilaspur certificates of three  different doctors, who knew the accused during his student days,  were annexed   in   support  of  the  application   for   medical examination.   It would appear that no regular  inquiry  was made by the Magistrate.  But from the fact that the  accused had applied for remittance to his mother of the money seized by  the police from him and his answers to the  Magistrate’s query whether copies of documents were supplied to him under s. 173 7 of the Code, the Magistrate concluded that he had no  reason to believe that the accused was at that stage suffering from such  infirmity  as would make him incapable of  making  his defence.   The order passed by Rangarajan, J.,  against  the Magistrate’s said order would seem to indicate that what the Magistrate did was neither adequate nor satisfactory and it was  for that reason that Rangarajan, J., directed  that  it was  necessary in the larger interests of justice  that  the accused  should  be examined by the authorities  of  Snowdon Hospital,  and  if  necessary,  he  should  be  kept   under observation  to  enable  the  doctors  there  to   ascertain properly whether the accused was suffering from any  mental. infirmity.  We may note that the learned Judge also  ordered that the report of the hospital authorities should go to the Magistrate  directly,.  That was presumably done  to  enable the  Magistrate  to  hold  an  inquiry  into  the  fact   of unsoundness  of mind of the’ accused, which is  the  ,second stage  provided  in  s. 464.   Unfortunately,  the  hospital authorities  did  not  have  the  necessary  facilities  for keeping  the  accused  under  observation  as  directed   by Rangarajan, J., and although the accused was examined by two psychiatrists,  the Superintendent of the Hospital  reported that  with the inadequate facilities which they had  it  was not possible to give a satisfactory opinion as to the  state of mind of the accused and had recommended his removal to  a mental  hospital.  As aforesaid, the recommendation made  by the  Superintendent  was not carried out  and  although  the Magistrate did not have any definite opinion one way or  the other  before him, he decided to proceed with  the  inquiry. The  result was that the accused ’was obliged once again  to go  to  the Sessions Court and then to the  High  Court  for redress  against the course adopted by the Magistrate.   The High Court took up the attitude that it should not intervene at an interlocutory stage, that the matter should be left to the discretion of the Magistrate to decide whether he should hold the inquiry or not under s. 464, and that in any  event Rangarajan,  J.,  had not ordered that the appellant  to  be shifted to a mental hospital for a further examination,  his order  having  been confined to his examination  by  Snowdon Hospital, which order had been complied with. It  is not possible to agree with such an interpretation  of the  order  passed by Rangarajan, J. It seems  that  learned Judge ordered the examination of the accused by the  Snowdon

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Hospital because he was apparently under the impression that hospital  has  the necessary facilities, including  that  of keeping the appellant under observation and to come to  some definite opinion.  He would not have otherwise directed that the  accused should be kept under observation for such  time as the medical authorities there thought necessary.  Had the order  of Ranearajan, J., been carried out in the spirit  in which it was made and arrangements 8 had been made to have the appellant examined by doctors in a hospital  with adequate facilities, the time that  has  been taken   up   in  dealing  with   the   appellant’s   further applications and revisions would have been saved. The  two orders passed by Beg, C.J., clearly meant that  the High  Court  left  the matter to the  Magistrate  to  decide whether  lie had reason to believe or not that  the  accused was  suffering from mental infirmity and it was only  if  he decided that he had no such reason to believe that he should next  proceed  with the committal  proceedings.   The  order passed   by   the  Magistrate  thereafter  shows   that   he misunderstood the High Court’s order to mean that he was  at once  to proceed to decide whether there was a  prima  facie case against the appellant, and if so, to commit him to  the Sessions  Court for trial.  Indeed, the Magistrate  did  not even  wait  for  the  second order passed  by  Beg,  C.  J., disposing of the review petition filed by the appellant  for revising  his  earlier order.  That being  so,  neither  the Sessions   Court  in  revision  against   the   Magistrate’s committal  order, nor the High Court in a further  revision, against  the Sessions Court’s order could have held that  on the materials before the Magistrate, the Magistrate had held that  he  had no reason to believe that  the  appellant  was suffering  from infirmity which would incapacitate him  from making his defence, and was therefore, not bound to hold any inquiry  and  could  therefore proceed  with  the  committal proceedings before him. A perusal of the order passed by the Magistrate is enough to satisfy  that  the Magistrate had misapprehended  the  order passed   by   Beg,  C.  J.,  and  as  a   result   of   such misapprehension  thought that he had been directed,  without anything more, to proceed with the committal proceedings.  A fair reading of the order of Beg, C. J., shows that what  he said  was that under s. 464 it was for the  Magistrate,  and not  the High Court, at that stage to decide  whether  there were reasons to believe that the accused was suffering  from unsoundness  of mind and to proceed with the inquiry, if  he came  to  the conclusion that he had no such  reason.   That order  did  not  direct  and could  not  have  directed  the Magistrate to proceed with the committal proceedings without first  determining  whether on the allegations made  by  the accused,  the  data  produced by him  and  the  conduct  and behaviour of the appellant in his Court, the Magistrate  had reasons  or not to believe that the appellant was  suffering from mental infirmity of the kind envisaged by s. 464.  That we apprehend was never done as is clear from the very  order passed  the Magistrate nor was appellant called upon to show that he was suffering at that stage from unsoundness of mind which  he ought to have been called upon to establish  since the burden was upon him to so establish.  The 9 words  "reason to believe" mean a belief which a  reasonable person  would entertain on facts before him.  That would  be the  burden  which  the  appellant  would  be  expected   to discharge.  That was the proper course for the Magistrate to follow,  both ’in view of the provisions of s. 464  and  the

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orders  passed  by  Beg, C.J., besides  the  report  of  the Superintendent  of  the  Snowdown  Hospital  that  before  a definitive  view could be taken of the mental state  of  the appellant  he would have to be kept under observation  in  a mental hospital. In  this view, the High Court was not correct when  it  held that the Magistrate had held an inquiry, that he had held in that  inquiry  that  he had no reason to  believe  that  the appellant  was suffering from any unsoundness of  mind,  and that  therefore,  he could straight away  proceed  with  the committal  proceedings.  In our view, the Magistrate  failed to  make such an inquiry which it was incumbent upon him  to make  at the very threshold, and that having not been  done, the committal proceedings, as also his order committing  the appellant  to  the  Sessions  Court  for  trial  were   both vitiated.  Consequently, the appeal must be allowed and  the High  Court’s order and also the committal order passed  by, the  committing Magistrate must be-set aside and a  de  nova committal  proceeding  directed.   We  further  direct   the Magistrate to hold those proceedings in compliance with  the requirements  of  s.  464 and give  an  opportunity  to  the appellant to produce evidence, if he so desires, to  satisfy the  Magistrate that  there are reasons to believe that  he is  suffering  from  such  unsoundness  of  mind  as   would incapacitate him from making his defence. S.B.W.                                                Appeal allowed 1 0