Cadell Jeansen Raja v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 29TH DAY OF NOVEMBER 2019 / 8TH AGRAHAYANA, 1941 BAIL APPL.NO.7821 OF 2019** **CRIME NO.565/2017 OF MUSEUM POLICE STATION, THIRUVANANTHAPURAM** ## **PETITIONER:** **CADELL JEANSEN RAJA, AGED 31 YEARS, S/O A.RAJA THANKAM, NBCRA 117, GRACE GARDEN, NORTH BAINS COMPOUND, NANDANCODE WARD, KOWDIAR VILLAGE, THIRUVANANTHAPURAM TALUK, NANDANCODU .P.O, THIRUVANANTHAPURAM DISTRICT, PIN-695003.** **BY ADVS. SRI.ABU MATHEW SRI.AJU MATHEW SRI.VINUCHAND** ## **RESPONDENT:** **1 STATE OF KERALA, THROUGH ASSISTANT COMMISSIONER OF POLICE, CANTONMENT SUB DIVISION, THIRUVANANTHAPURAM, THIRUVANANTHPAURAM DISTRICT, PIN-695001, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031. 2 SUB INSPECTOR OIF POLICE, MUSEUM POLICE STATION, THIRUVANANTHAPURAM DISTRICT, PIN-695033. SRI.S.SAJJU, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. ---------------------------------------B.A. No. 7821 of 2019 ---------------------------------------Dated this the 29[th] day of November, 2019 ## O R D E R The petitioner herein has been arrayed as the sole accused in the instant Crime No.565/2017 of Thiruvananthapuram Musuem Police Station, which has been registered for offences punishable under Secs.302, 436 & 201 of the IPC. The case has been registered on the basis of the FIS given by the defacto complainant on 9.4.2017 at about 2.30 pm in respect of the alleged incidents which happened for the period from 5.4.2017 to 8.4.2017. 2. The prosecution case in short is that, sometime between 10.12 am on 5.4.2017 and 11 pm on 8.4.2017, the petitioner herein had committed murders of his father, mother, sister and his maternal grandmother in his house, and thereafter in order to destroy evidence, he had set fire to the dead bodies of the deceased persons and thus the petitioner has committed the abovesaid offences. The petitioner has been arrested in this case on 10.4.2017 and after his remand on 11.4.2017, he has been under detention since then. The police has completed the investigation and has filed the B.A. No. 7821 /2019 ..3.. final report/charge sheet on 10.7.2017 and after the completion of committal proceedings the case is now pending before the Addl.Sessions Court-I , Thiruvananthapuram, as S.C.No.151/2018. 3. The counsel for the petitioner would point out that the abovesaid allegations are false and baseless, and further that the petitioner was suffering from Schizophrenia/mental unsoundness, even at the time of commission of the abovesaid alleged acts, and that therefore even if it is assumed that the abovesaid acts have been committed, the accused is entitled for the benefit of exemption under Sec.84 of the IPC, which deals with _act of a person of unsound mind, wherein it is stipulated that 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,_ etc. Further that, the petitioner has already suffered detention in this case for the last more than 2½ years, and his continued incarceration would not subserve any effective purpose, and further that, even the records of the prosecution would clearly indicate that he is in urgent of psychiatric treatment, which warrants his treatment in better hospital, etc. The counsel for the petitioner would also place reliance on various B.A. No. 7821 /2019 ..4.. decisions of the Apex Court as in _**Dataram Singh v. State of U.P. And Another [2018 (1) KHC 901 = (2018) 3 SCC 22]**_ wherein it has been held that the criminal courts while granting bail may have to adopt a humane attitude, etc. 4. The learned Prosecutor has seriously opposed the grant of bail, and has pointed out that there are no materials whatsoever to even remotely indicate that the petitioner was suffering from Schizophrenia/mental unsoundness at the time of commission of acts, or immediately before that, and that the prosecution materials would clearly show that the abovesaid acts of the petitioner are the product of clear pre-planning and precise execution, and that the prosecution materials would show that he has made preparations months back by watching videos in Youtube, etc and he has murdered none other than his father, mother, sister and his maternal grandmother, and further that there is strong possibility of the petitioner tampering evidences or intimidating or influencing the witnesses, who are some of his close relatives, if he is let out on bail. Hence, it is urged by the learned Prosecutor that this is not a fit case for this Court to exercise the discretion in the matter of grant of bail, etc. B.A. No. 7821 /2019 ..5.. 5. It appears that after the petitioner has been detained, he has been subjected to psychiatric assessment, and from the report of the Superintendent of Mental Health Centre, Thiruvananthapuram, it is stated that the accused is suffering from Schizophrenia but that there is nothing to show that he was suffering from Schizophrenia at the time of the commission of offences, and those aspects may have to be decided at the time of trial after taking evidence. Moreover the learned Prosecutor would point out that the present application for bail is not under Sec.330 of the Cr.P.C. contained in Chapter XXV thereof. 6. The learned Sessions Court while rejecting his regular bail plea as per Anx.A5 order has noted in paragraph No.7 thereof that the records would show that while in judicial custody, he has behaved abnormally and violently and he was sent to General Hospital, Thiruvananthapuram, and from there he was referred to the Mental Health Centre, Thiruvananthapuram for obervations and on 16.5.2017, the Superintendent of Mental Health Centre, Thiruvananthapuram, has filed a report stating that the accused is suffering from Schizophrenia and that then he was not fit to stand for trial and in view of that report,enquiry as to the offence was B.A. No. 7821 /2019 ..6.. postponed by the learned Magistrate till the accused resumes soundness of mind. Later on 11.7.2017 the Superintendent of Mental Health Centre, Thiruvananthapuram, filed a report stating that at present the accused is aware of charges and he is able to understand court proceedings and is able to instruct his lawyer and he is fit to stand for trial, etc. 7. This Court had directed the Sessions Court concerned to furnish a report as to whether, at the pre-committal stage the learned Magistrate has passed final orders in the proceedings initiated under Chapter XXV of the Cr.P.C., which deals with provision relating to accused persons of unsound mind. The Addl.Sessions Court-I, Thiruvananthapuram, who is dealing with S.C.No.151/2018 has now filed a report dated 26.11.2019 to the Registry of this Court. The said report reads as follows: “............It is seen from the records in C.P.No.32/2017 on the file of the Judicial First Class Magistrate's Court-III, Thiruvananthapuram that when it is reported that on the basis of the Medical Certificate of Dr.Manju P., Psychiatry Department, Government General Hospital, Thiruvananthapuram, the accused who was in judicial custody in District Jail, Poojappura, Thiruvananthapuram, was taken to Mental Health Centre, Thiruvananthapuram for admission and detailed evaluation, the learned Magistrate, initiated an enquiry as to the unsoundness of mind of the accused and after enquiry, by order dated 29/05/2017, the learned Magistrate postponed the enquiry of offence till the accused resumes soundness of mind. (Copy of the said order is enclosed herewith). The learned Magistrate had directed the Superintendent, Mental Health Centre, Thiruvananthapuram to file monthly report of visitors u/s.38 of the Mental Health Act, and also special report of the B.A. No. 7821 /2019 ..7.. Medial Officer in charge of Mental Health Centre, u/s.39 of the Mental Health Act, as to the mental and physical condition of the accused. On 11/07/2017 the Superintendent, Mental Health Centre, Thiruvananthapuram, forwarded a report regarding the present condition of the accused. (The said report is also enclosed herewith). In that report, the Superintendent has reported that at present he is aware of charges against him and is able to understand the court proceedings, that he is able to instruct lawyers and that he is fit to stand trial. In view of the said report dated 11/07/2017, the learned Magistrate resumed enquiry of offence on 27/07/2017. Though no separate final order in Chapter 25 Cr.P.C. proceedings in seen passed, in the proceedings paper of C.P. NO. 32/2017, the learned Magistrate has recorded the receipt of report dated 11/07/2017 of the Superintendent, Mental Health Centre, Thiruvananthapuram. (Copy of the proceedings paper dated 27/07/2017 in C.P. No. 32/2017 is enclosed herewith). Thereafter, on 20/01/2018, the learned Magistrate has committed the case to the court of Sessions u/s.209 9a) of Cr.P.C. From the records, it is seen that even after committing the case to the Court of Sessions, the accused has been admitted in Mental Health Centre for observation and treatment. …...................” A perusal of the said report would indicate that no separate final order has been passed by the learned Magistrate in the proceedings as per Chapter XXV of the Cr.P.C. 8. The learned Prosecutor would point out that even now if the defence as the case that such proceedings under Chapter XXV of the Cr.P.C. has to be duly completed, etc then certainly it is for the defence to raise such a plea before the Sessions Court concerned, and the provisions in Chapter XXV of the Cr.P.C. duly authorises the Sessions Court to take further steps in that regard, and it is for the defence to take up such plea in the manner known to law, and those B.A. No. 7821 /2019 ..8.. are not aspects which are germane or relevant for deciding the issue as to whether the petitioner is to be granted regular bail under Sec.439 of the Cr.P.C. 9. The abovesaid submission made by the prosecution is quite tenable and in that regard it has to be borne in mind that, the present bail application is under Sec.439 of the Cr.P.C. and not under Sec.330 of the Cr.P.C., which is part of Chapter XXV thereof. After hearing both sides and after careful evaluation of the facts and circumstances of the case, this Court is constrained to take the view that the allegations disclosed in this case against the petitioner is quite heinous and grave. The abovesaid apprehension raised by the prosecution regarding the possibility of the petitioner tampering evidences or intimidating or influencing witnesses most of whom are his close family members, etc, cannot be simply brushed aside by this Court. In these circumstances, this Court is not in a position to accede to the plea of the petitioner for grant of regular bail. 10. The counsel for the petitioner would then point out that the petitioner will be advised to take up the plea for finalizing the proceedings under Chapter XXV of the Cr.P.C. before the Sessions Court, and this Court may direct the said Court to take necessary B.A. No. 7821 /2019 ..9.. steps in that regard, so as to take care of not only the present mental ailments of the petitioner, but also to ascertain as to whether the petitioner was actually suffering from such mental unsoundness at the time of commission of offence, etc. 11. Needless to say, as these aspects are, in a way, not within the strict concern of this proceedings, the defence has the liberty to work out their remedies in that regard in the manner known to law, especially in the light of the provisions contained in Chapter XXV of the Cr.P.C., and this Court need not get into the nitty gritty of those aspects. The application fails and the same will stand dismissed. With these observations the above Bail Application will stand dismissed. Sd/- ALEXANDER THOMAS, JUDGE MMG