LAW OF CRIMES – II (CRIMINAL PROCEDURE CODE) PROJECT

ACCUSED PERSONS OF UNSOUND MIND

THE TAMILNADU DR. AMBEDKAR LAW UNIVERSITY

SCHOOL OF EXCELLENCE IN LAW
CHENNAI

S. LAKSHMI NARAYANAN
V Year B.Com.,B.L.,(Hons)
Section- A
Reg.No – HB14033
INTRODUCTION

The Code of Criminal Procedure is enacted for the effective enforcement of substantive
criminal law and intends to give a mechanism for smoother delivery of justice. The
development of civilization has established the fact that liberty of any person is very
important and it is to be dealt with great attention and care, since the Criminal Procedure
Code deals with arrest and trial of the person it is very necessary that fairness should be there
to establish the lawful detainment of a person from his liberty. Fairness is a subjective term,
estimated just in connection to the gravity of the allegation, the time and assets which the
general public can sensibly bear to spend, the nature of accessible assets, the overall social
esteems and so forth.

There is no specific definition of Unsound Mind in the Indian Penal Code, 1860. However,
Section 84 deals with “Act of a person with Unsound Mind”; analyzing Section 84 will give
us the essential elements of a person with an unsound mind. The Section 84 reads as follows-

“84. Act of a person with Unsound Mind– Nothing is an offence which is done by a person
who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the
nature of the act, or that he is doing what is either wrong or contrary to law.”

This definition has given some elements for understanding the person of unsound mind-

 Unequipped for knowing the idea of the demonstration; or

 Unequipped for knowing his demonstration isn’t right; or

 Unequipped for knowing it is in opposition to the law.

In other words, an unsound person is as it is alluded to as lunacy or unsound personality,

mental variation from the norm, illness of psyche and so forth a crazy individual can’t think
and go about as an ordinary person. His ability to know things is distorted. It is called ‘non
compos mentis’ which translates to ‘of unsound mind’.
On the off chance that madness is to be viewed as invulnerability above all else it must be
unmistakably disclosed as to what it may be. There being no standard of craziness, it ends up
hard characterizing madness prompting the nonattendance of mens rea.

It has for quite some time been the run of the common law that a man can’t be required to
argue an arraignment or be striving for a wrongdoing while he is so rationally confused as to
be inadequate making a reasonable guard, and he can’t be decreed to discipline while he is so
disarranged to be unequipped for expressing any reasons that why judgment ought not be
articulated. In the event that found sensible uncertainty that the litigant is so rationally
cluttered, it ought to suspend the criminal procedures and hold a request on the issue with or
without a jury, and if the respondent to observe is to be so cluttered, the Court ought to put off
the criminal procedures until he recovers his sanity. A similar manner applies in India under
part XXV of Criminal Procedure Code, 1973.

The reasons generally given for the suspension of criminal procedures against the rationally
incapacitated people are that it would be barbaric and, to a specific degree, a refusal of the
privilege of tire upon the benefits, to require one who has been crippled by the demonstration
of God from keenly making his guard argue or be striven for his life or freedom.

In the case Jai Shanker v. State of Himachal Pradesh 1 it was observed that the Section 329
does not have anything to find out whether the accused is of the unsound mind, in other
words, nothing to do with the inquiry whether the charged was or was definitely not unsound
personality when he is charged to have conferred the offence. It is just on the off chance that
where charged gives off an impression of being unable by reason of mental sickness of
making his protection that issue unsoundness must be attempted.

DEVELOPMENT OF LAW IN CASE OF INSANITY

The concept of insanity is evolved in the case of Rex v. Arnold2, where it was held that no
man should be escape from the prison until and unless it well established that person is not
capable of understand the consequence of his act and that he is acting contrary to the law, just
like wild beast.

1 A.I.R. 1972 S.C. 2267

2 Rex v. Arnold (1724)
The next development takes place in the case of Regina v. Oxford3, where the test of good and
evil was laid down and in the cases where the accused is not able to deferential between good
and evil and existing law. In the above case, the accused attempt to kill the King it was found
that he does not differentiate between good and evil hence he was acquitted4.

Then in the case of R v. M’Naghten,5 where the accused was suffering from paranoia in which
he believed that government was trying to kill him and Prime Minister of England Robert
Peel was persecuting him.

In this case, the High Court came up with a rule which is today known as M’Naghten rules.
The first is the assumption that the respondent is normal and that they are in charge of their
criminal acts. The following necessity of the M’Naughten Rule is that at the season of the
wrongdoing the respondent more likely than not been enduring “under an imperfection of
reason” or “from an ailment of the mind.” The third necessity of this decision is that the
respondent must “not know the nature furthermore, nature of the demonstration he was doing,
or on the off chance that he knew it that he didn’t realize what he was doing wasn’t right6.

PROVISIONS OF CODE OF CRIMINAL PROCEDURE

SECTION 328 CRPC

As mentioned above insanity is not defined in the IPC but Section 84 provides us the “Act of
a person of unsound mind- Nothing is an offence which is done by a person who at the time
of doing it, by reason of unsoundness of mind, is incapable of doing the act, or that he is
doing what is either wrong or contrary in law.” This Section can be observed as follows-

 Every type of insanity is not covered under the statute but only cover those mental
conditions where the accused is incapable of understanding his act is contrary to law.

 The Court will presume that the sanity of accused and burden of proof will lie with
accused to proof his insanity.

3 Regina v. Oxford (1840)

4 Lunacy or unsound mind, mental abnormality, Lawteacher.net, https://www.lawteacher.net/free-law-
essays/medical-law/lunacy-or-unsound-mind-mental-abnormality.php (last visited Mar 18, 2018)
5 (1843) 8 E.R. 718
6 Michael A. Eagan, The effect of the Guilty but Mentally Ill verdict on the outcome of a jury trial.
  Then next it needs to be proven that accused when committed the offence was during
legal insanity.

 In achieving such a conclusion, the conditions which went before, went to or took
after the wrongdoing are of significant thought; and

 The indictment in releasing its weight of the supplication of lawful madness has just
to demonstrate the fundamental certainty and depend upon the typical assumption of
the law that everybody knows the law and the common outcomes of his
demonstration.

In the case of Jai Shanker7was held regarding Section 464(as contained therein previously)
and presently Section 328 of Cr.P.C., it was found that the circumstance emerging for this
situation is represented by Section 464 of the Code which lays down the system that a
Magistrate is charged upon to take after when a blamed charges that he is experiencing some
psychological illness as to render him inadequate making his guard. It is obvious from the
obligatory dialect of the section that Officer might choose. At the point when a blamed
individual is brought before him, who is suspect or then again claimed to be a man of
unsound personality and before he continues with the request, Officer has on such materials
as are brought before him ask whether there is a “motivation to trust” that the charged before
him is experiencing any such sickness. Following stage is to initiate an investigation into the
reality of unsoundness of brain and might cause charged to be inspected by the common
specialist.

Section 328 applies to the proceedings in the nature of inquiry before the Magistrate. The
reasons to believe in this Section means a belief which a man with ordinary prudence will
believe when presented with facts and circumstances. When the accused files an application
for the unsoundness of mind under Section 328 the Magistrate is bound to inquire before he
proceeds with the trial that accused is incapacitated by the unsoundness of mind making the
defense. Section 328 at threshold straightway proceeds with committal proceedings as well as
his order committing accused for trial is vitiated8.

7 Supra note 1
8 1972 K.L.T. 121.
Again in Amujam v. State, the High Court of Kerala9 held that the intricate strategy; given in
Section 328 is exceptionally helpful and others conscious in its approach, has been set down
protect the interests of a man brought under the watchful eye of the Court, who is suspected
to be crazy. For the situation, the Magistrate did not fit in with the necessities of this section.
He turned to the extraordinary terrible advance of sending the blamed who is a woman to the
Mental Hospital just at the report of the police. A negligible perusing of sub-section of
Section 464 and two sub-segment of Section 466 would be adequate to alarm any Court about
the extraordinary alert and care that Courts bound to practice in managing a man who is
suspected to be unsound till the Magisterial records a finding under Section 464.

The Section 328 has provisions which provides for when the accused is lunatic-

 When Magistrate has no purview to arrange the charged person to be kept in safe care.
On the off chance that he does as such the trial methodology is vitiated. Subsequently
in such ought to be more chivalrous and accommodating in their approach. At the
point when a Magistrate holding a request has the motivation to trust that the
individual against whom the request is being held is of unsound personality and
therefore unequipped for making his protection, the Magistrate might ask into the
reality of such unsoundness of psyche, and cause such individual to be inspected by
the Civil specialist of the District or such other Medical Officer as the State
Government may coordinate, and immediately should look at such specialist or other
officer as a witness, and might lessen examination in composing.

 Pending such examination and request, the Magistrate may manage such individual in
understanding with the arrangements of Section 330. On the off chance that such
Magistrate is of the supposition that the individual alluded to in sub-Section is of
unsound mind and therefore unequipped for making his safeguard, he should record a
finding to that impact and should delay encouraging procedures for the situation.

SECTION 329 CRPC

At the point when a Magistrate holding trial motivation to trust that the individual against
whom the request is being held is of unsound personality and therefore unequipped for
making his protection, the Magistrate might ask into the reality of such unsoundness of

9 A.I.R. 1972 S.C. 2267

psyche, and cause such individual to be inspected by the Civil specialist of the District or
such other Medical Officer as the State Government may coordinate, and immediately should
look at such specialist or other officer as a witness, and might lessen examination in
composing.

Pending such examination and request, the Magistrate may manage such individual in
understanding with the arrangements of Section 330. On the off chance that such Magistrate
is of the supposition that the individual alluded to in sub-section 10is of unsound mind and,
therefore, unequipped for making his safeguard, he should record a finding to that impact and
should delay encouraging procedures for the situation continuing till his abilities shield
himself appropriately are re-established. In the event that a charged satchel is of unsound
personality, there is no doubt of continuing against the surety. The arrangements of Section
329, Cr PC, are obligatory. It is required with respect to Court to first think about the reality
of unsoundness of psyche. The inadequacy of the charged to bulwark in the wake of taking
such proof may include therapeutic confirmation that might be vital for all reasons. Inability
to do as such vitiates the trial. Unimportant report of the Superintendent of Jail that blamed is
fit for understanding proof is no consistency of Section 392, Cr.P.C. The arrangements of
Section 329, Cr.P.C., are compulsory. Inability to hold request as unsoundness of psyche
vitiates the trial.

When accused is found to be of unsound mind the Court should not put any question to him
but should try to find out the fact of insanity by examining him by the civil surgeon or some
other medical officer. It was found out that plea of insanity first should be recorded in the
medical evidence.11 The trial of accused without the test of insanity is violating in nature.

In the case of Shankaran v. State12 the Sessions Court does not notice any symptom of
unsoundness of mind during the trial as well as the time when questioning under Section 313
Cr.P.C. Thus, in the view of the Sessions Judge, the accused appeared to be normal but in
view of strange answers given by him with the connection of incriminating circumstances
alleged against him, the Sessions Judge referred the accused for an examination by the
psychiatrist who issued a fitness certificate. On considering this certificate the Sessions Judge
came to the conclusion that there is a substantial compliance with Section 329. It is further
10 (1988) 1 Crimes 460.
11 1986 Cr. L.J. (P&H).
121994, Cr.LJ 1173(Kerala)
held that a plea of unsoundness of mind was raised at the first time by the accused when he
was examined under Section 313, but no witness was examined and no certificate was
produced to disprove the sanity of mind. Therefore, the conviction of the convict under IPC
Section 302 is held to be valid and he has not been discharged of the burden to cast him into
insanity.

Trial in the Section 329 includes the reference under sub section (1) of Section 366. In this
case, the accused was a person was of unsound mind and was awarded with the death
sentence by the Sessions Judge and it was subject to the confirmation by the High Court. The
question was that the Section 329 shall apply to the accused when the sentence has been sent
to the High Court for the confirmation. It was held that the trial of the accused of
unsoundness of mind sentenced to death does not concluded when termination of proceedings
with Sessions Court, it cannot be deemed to be concluded until and unless the commitment
Court passed the executable sentence. In this case, the sentence passed by the Sessions Judge
shall be executable only when it is confirmed to the High Court; therefore, Section 329
Cr.P.C. is applicable on proceedings that can be postponed13.

SECTION 331 CRPC

At whatever point, a man is found, under Section 328 or 329, to be of unsound personality
unfit of making his guard, the Judge or Court, considering all the things regardless of
whether the case is one in which safeguard might be taken or not, may discharge him on
adequate security being given that he should be legitimately dealt with and might be
anticipated frame doing damage to himself or on the other hand to different people, and for
his appearance when required under the watchful eye of the Magistrate or Court or on the
other hand such officer as the Magistrate or Court designates for this sake.

If the case is the one in which, in the conclusion of the Magistrate or Court, safeguard ought
not be taken, or if adequate security is not given, the Magistrate or Court, all things
considered, should bargain in the Mainer as he or she might think fit, and should report the
move made to the State Government; given that no request to the confinement of the
denounced in an unsound person refuge should be made generally other than as per such

13 1975 SC 1665.
standards, as the State Government may have made under the Indian Lunacy Act, 1912(4 of
1912)14.

SECTION 332 CRPC

This Section provides for the procedure on accused appearing before the Magistrate.
Provided if when the denounced shows up or is again brought under the watchful eye of the
Magistrate or Court, as the case might be, the Magistrate or Court thinks of him as equipped
for making his barrier, the request or the trial should continue.

If the Magistrate or Court views the blamed as still inadequate for making the resistance, the
Magistrate or Court might act as indicated by the arrangements of Section 328 Section 329 by
and large, and if the blamed is observed to be for unsound personality are subsequently
unequipped for making his safeguard, might manage such denounced agreement with the
arrangements of Section 330

SECTION 333 CRPC

This Section provides for when accused appears to be of sound mind. This Section empowers
the Magistrate to proceed with the case when-

 The accused person to be of sound mind at the time of enquiry or trial.

 The Magistrate has sufficient reasons to believe that accused has committed an act
which if he was in sound mind then it would be an offence.

 The Magistrate also have reasons to believe that during the commission of the crime
the accused was in unsoundness of mind and incapable to understand the
circumstances of his act, he was unable to know that the act is contrary to the existing
law.

The Magistrate can himself try the accused if he is competent to do so. If the accused is tried
by the Court of Sessions he may commit him to the trial of Court of Sessions. At the point,
when the blamed gives off an impression of being for sound personality at the season of
request or trial, and the justice is fulfilled from the proof given before him that there is

14 https://www.writinglaw.com/chapter-xxv-328-339-of-crpc-provisions-as-to-accused-persons-of-unsound-
mind/
motivation to trust that to denounced submitted a demonstration, which, on the off chance
that he had been of sound personality, would have been an offence furthermore, that he was,
when the demonstration was submitted, by reason of unsoundness of small scale unequipped
for knowing the idea of the demonstration or that it was not right or in spite of law, the
Magistrate might continue with the case, and if the charged should be attempted by the Court
of Sessions, him for trial under the watchful eye of the Court of Sessions.

SECTION 334 CRPC

Section 334 deals with the judgment of acquittal on the ground of unsoundness of the mind. It
provides that Magistrate shall acquit the accused when he is satisfied from the evidence
before him that accused was at the time of commission of the offence by reason of
unsoundness of mind, incapable of knowing the nature of the act or that it was wrong or
contrary to the law. Any judgment of acquittal on the ground of unsoundness of mind must
state specifically whether accused has committed the alleged act or not.

At whatever point, any individual is absolved upon the ground that, at the time at which he is
asserted to has submitted an offence, he was, by reason of unsoundness of brain, unequipped
for knowing the nature of the demonstration asserted as constituting the offence, or that it
wasn’t right or in opposition to law, the finding might state particularly whether he conferred
the demonstration or not.

SECTION 335 CRPC

A person acquitted on such ground to be detained in safe custody. When the Court finds that
an offence has been committed by a lunatic, it must confine itself to making an order that the
accused should be kept in safe custody in such a place and manner as the Court thinks fit. The
future of such person shall be decided by the State Government.

Person vindicated on such ground to be confined in safe guardianship: Whenever the

discovering states that the blamed individual conferred the demonstration charged, the Justice
or Court before whom or which the trial has been held, should, if such act would, in any case,
for the inadequacy found, have constituted an offence, Order such individual to be confined
in safe care in such place and way as the Justice or Court thinks fit; or Order such individual
to be conveyed to any relative or companion of such individual.
No request for the detainment of the blamed in a crazy person shelter should be made under
Clause of sub-section generally than as per such principles, as the State administration may
have made under the Indian Lunacy Act, 1912 (4 of 1912) No request for the conveyance of
the denounced to a relative or companion should be made under Clause (b) of sub-section (1),
with the exception of upon the utilization of such relative or companion and on his offering
security as per the general inclination of the Magistrate or Court that the individual conveyed
might:

1. Be legitimately dealt with and kept from doing damage to himself or to other people;

2. Be created for the investigation of such officer, and at such circumstances and spots,
as the State legislature may coordinate.

SECTION 336 CRPC

Power of State Government to engage officer-in-control to release is given under Section 336
which states that the State Government may enable the officer responsible for the Jail in
which a man is kept under the arrangements of Section 330 or Section 335 to release all or
any of the elements of the Inspector-General of Prisons under Section 337 or Section 338.

SECTION 337 CRPC

Procedure where crazy person detainee is accounted for equipped for making his protection,
on the off chance, that such an individual is kept under the arrangements of sub-Section (2)
of Section 330 and for the situation of a man kept in a Jail, the Inspector-General of Prisons,
or, on account of a man kept in an insane person shelter, the guests of such haven or any two
of them should guarantee that, in his or their feeling, such individual is equipped for making
his safeguard, he should be taken under the steady gaze of the Magistrate or Court, by and
large, at such time as the Magistrate or Court, names, and the Magistrate or Court might
manage such individual under the arrangements of Section 332; and endorsement of such
Inspector-General or guests as previously mentioned should be receivable as proof.

SECTION 338 CRPC

The procedure, where unsound mind person kept, is pronounced fit to be discharged if such
individual is kept under the arrangements of sub-section (2) of Section 330, Section 335, and
such Inspector-General or guests should guarantee that in his or judgment, he might be
discharged without peril of his doing damage to himself or to someone else, the State
Government may immediately arrange for him to be discharged or to confined in care, or to
be exchanged to an open insane person refuge on the off chance that he has not been
effectively sent to such a haven, may delegate a Commission, comprising of a legal two
Medical Officers.

Such Commission might make a formal investigation into the perspective of such an
individual, all such confirmation, as is essential, and should answer to the State Government
which may his discharge or detainment as it supposes fit.

SECTION 339 CRPC

Delivery of unsound person to care of relative or friend- Whenever any relative or companion
of any individual confined under the arrangements of Section 330 or Section 335 wants that
he should be conveyed to his care and guardianship, the administration may, upon the
utilization of such relative or companion and on his giving such security as per the general
inclination of such State Government, that the individual conveyed should be appropriately
dealt with and kept from doing damage to himself or to some other individual; be delivered
for the review of such officer, and at such circumstances and spots, as the State Government
may coordinate; for the situation of a man kept under sub-Section(2) of Section 330, be
created at the point when required under the steady gaze of such Magistrate or Court, request
such individual to be conveyed to such relative or companion.

If the individual so conveyed is blamed for any offence, the trial of which has been putting
off by the reason of his being of unsound personality and unequipped for making his barrier,
and the reviewing officer alluded to in Clause (b) of sub-section (1), affirms whenever to the
Justice or Court, that such individual is equipped for making his barrier, such Magisterial or
then again Court should call upon the relative or companion to whom such charged was
conveyed to deliver him under the watchful eye of the Magistrate or Court; and, upon such
creation the Magistrate or the Court might continue as per them. Arrangements of Section
332, and the testament or then again the examining officer should be receivable as
confirmation.
CONCLUSION

Unsoundness of mind of accused during the trial or amid the examination or preparatory
inquiry into the offence is independent of anyone else unessential with the end goal of
Section 84 of the Indian Penal Code which manages unsoundness of mind at the season of the
commission of the offence. Unsoundness of mind may offer ascent to a circumstance that the
charged may have proceeded to insane even at the season of the trial and this may be a
pertinent certainty in that specific situation.

Mental unsoundness in a man blamed for wrongdoing may offer ascent to totally two disdain
legitimate issues. The first is the topic of the respondent’s duty: regardless of whether, at the
time the demonstration charged, he was so rationally confused as not to be culpable for it,
under the legitimate duty; that is, regardless of whether around then he knew the
wrongfulness of the demonstration. This is the issue we have managed in the previous parts.
Alternate includes the litigant’s mental condition not at the season of the demonstration
charged, but rather at the season of the criminal procedures; he is directly sufficiently normal
to get a sentence. This might be managed in the present part.

It has for quite some time been the administer of the common law that a man cannot be
required to an arraignment or be striven for a wrongdoing while he is so rationally cluttered
as to be unfitly making a discerning protection, and he cannot be declared to discipline while
he is so disarranged to be unequipped for expressing any reasons that why judgment ought
not be articulated. In the event that found sensible uncertainty that the respondent is so
rationally cluttered, it ought to suspend the criminal procedures and hold a request on the
issue with or without a jury, and if the respondent observed to be so disarranged, the Court
ought to put off the criminal procedures until he recovers. The provision of sanity similarly
applies in India under part XXV of Criminal Procedure Code, 1973.

The reasons were typically given for the suspension of criminal procedures against the
rationally impaired people are that; it would be barbaric and to a specific degree a disavowal
of the privilege of endeavoring upon the benefits, to require one who has been debilitated by
the demonstration of God from cleverly making his resistance to argue or be striven for his
life or freedom. There might be conditions in all cases in which the respondent alone has the
information, which may demonstrate his guiltlessness, he ought not to be denied of this open
door only on account of his unsoundness of mind.
REFRENCES

Articles

 Eemru Weihofen, Mental Disorder as a Criminal defence, (1954) P. 429.

 Lunacy or unsound mind, mental abnormality, net, https://www.lawteacher.net/free-

law-essays/medical-law/lunacy-or-unsound-mind-mental-abnormality.php (last visited
Mar 18, 2018).

 Provisions as to Mentally Disabled Accused, Shodh Ganga,

http://shodhganga.inflibnet.ac.in/jspui/bitstream/10603/132449/13/13_chapter
%207.pdf (last visited Mar 19, 2018).

 Forensic Psychiatry, (1927) p. 32

Books

 Surya Narayan Mishra, The Code of Criminal Procedure, Central Law Publication,
Allahabad.

Cases

 Amuja v. State A.I.R. 1972 S.C. 2267

 Ansar Ahmad v. State (Delhi Administration), (1988) 1 Crimes 460.

 Gurjith singh v. State of Punjab 1986 Cr. L.J. (P&H)

 Jai Shanker v. State of Himachal Pradesh A.I.R. 1972 S.C. 2267

 Kunjunarayan Sivaraman v. Kerala, 1972 K.L.T. 121

 R v. M’Naghten (1843) 8 E.R. 718

 Regina v. Oxford (1840)

 Rex v. Arnold (1724)

 Shankaran v. State 1994, Cr.LJ 1173(Kerala).

 State of Maharashtra v. Sindh, AIR 1975 SC 1665

 Yogesh Kumar v. State, 1996 Cri LJ 1173 (Ker.).