Jose (Petitioner) v. Sub Inspector of Police, Chalakudi Police Station, Thrissur District and Adl.R2 Sheela Joseph

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE GOPINATH P. ``` ``` WEDNESDAY, THE 8[TH] DAY OF NOVEMBER 2023 / 17TH KARTHIKA, 1945 ``` ## **`OP(CRL.) NO. 477 OF 2021`** ## **`PETITIONER/FATHER OF ACCUSED:`** ``` JOSE, AGED 74 YEARS, S/O. PYLOTH, KANDAMKULATHI HOUSE, ALOOR DESOM & VILLAGE, MUKUNDAPUAM TALUK, THRISSUR-680 683. ``` ``` BY ADV RAJESH CHAKYAT ``` ## **`RESPONDENTS/COMPLAINANT:`** ``` 1THE SUB INSPECTOR OF POLICE, CHALAKUDI POLICE STATION, THRISSUR DISTRICT-680 307. ``` ``` 2ADDL.R2 SHEELA JOSEPH AGED 55 YEARS, W/O.M.O.JOSEPH, RESIDING AT MALAPPAN HOUSE,SHA ROAD, CHALAKKUDY P.O – 680 307. ``` ``` IS IMPLEADED VIDE ORDER DATED 04/12/2021 IN IA.NO.1/2021 IN OP(CRL)NO.477/2021 ``` ``` BR2 Y ADV SARATH BABU KOTTAKKAL ``` ``` R1 BY SRI.NOUSHAD K A, PP ``` ``` THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 08.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` OP(CRL.) NO. 477 OF 2021 2 ## JUDGMENT The petitioner is the father of one Laijo, who is the accused in Crime No.410 of 2018 of Chalakudy Police Station, which was registered alleging commission of the offence punishable under Section 302 of the Indian Penal Code. The matter is now pending before the Sessions Court, Thrissur as S.C.No.256 of 2019. The petitioner has approached this Court by filing the above Original Petition seeking the following reliefs:- I) Issue appropriate order directing the trial court to issue certified copies of medical reports as well as the order dated 16.10.2021 in S.C.No.256 of 2019 on the Principal District and Sessions Court, Thrissur and stay the trial of the case for a period of one month. II) Issue appropriate order directing the Principal District and Sessions Court, Thrissur to conduct an enquiry as directed in Exhibit P4 Judgment and also in accordance with Section 329(2) of Cr.P.C. III) Issue appropriate order as this Hon’ble Court being fit while considering the above writ petition. 2. It is the case of the petitioner that there are contradictory medical reports regarding the mental status of the aforesaid Laijo. It is submitted that following Ext.P4 judgment of this Court, the accused OP(CRL.) NO. 477 OF 2021 3 was referred for medical opinion and the initial report again suggested that he is not fit to stand trial. It is submitted that following treatment as an in-patient, a medical report was obtained stating that the accused is fit to stand trial. It is the case of the learned counsel for the petitioner relying on the judgment of this Court in Babu Velleriyan v. State of Kerala [2019(1) KHC 852] that an enquiry as contemplated by the provisions of Section 329 of the Cr.P.C will have to be held before the trial court can proceed with the matter. Specific reliance is made to paragraph 15 of the aforesaid judgment. It is submitted that presently there is no order following an enquiry as contemplated by the provisions of Section 329 of the Cr.P.C and the only proceeding available is Ext.P6, which reads as follows:- “Report received stating that he is fit to stand trial. He is ordered to be released from this centre along with his father in view of this order in 1869/20 dated 23.10.2020 for hearing on charge to…….” 3. Heard the learned Public Prosecutor and the learned counsel appearing for the de-facto complainant. The learned counsel appearing for the de-facto complaint would very fairly submit that going by the judgment of this Court in Babu Velleriyan (supra), it was incumbent on the part of the trial court to conduct an enquiry as OP(CRL.) NO. 477 OF 2021 4 contemplated by Section 329 of the Cr.P.C. It was submitted that the aforesaid Laijo is accused of having murdered his wife, who is the daughter of the de-facto complainant. It is submitted that the First Information Statement in Crime No.410 of 2018 of Chalakudy Police Station was given by the father of the deceased, who is cancer patient and is aged about 73. It is submitted that this is a case where the deceased was found murdered inside a locked room, which was occupied by the deceased and the aforesaid Laijo. It is submitted that the deceased was seen lying in a pool of blood by the father of the deceased through a window. It is submitted that if the trial of the case is delayed further, the prosecution will be put to serious prejudice and hardship, especially considering the health condition of the father of the deceased. 4. The learned Public Prosecutor also does not dispute the fact that an enquiry as contemplated by the provisions of Section 329 of the Cr.P.C would have to be held in the facts and circumstances of this case. 5. Having heard the learned counsel for the petitioner and the learned Public Prosecutor and having perused the judgment of this Court in Babu Velleriyan (supra), I am of the view that this is a case where the Sessions Court ought to have conducted an enquiry as OP(CRL.) NO. 477 OF 2021 5 contemplated by the provisions of Section 329 of the Cr.P.C and as explained by this Court in paragraph 15 of Babu Velleriyan (supra). In that decision, this Court held as follows:- “15. In other words, the Court is to inquire into the fact of unsoundness of mind and consequent incapacity to make his defence, for which it is to ask for evidence. When the accused raises the plea of unsoundness of mind, the initial onus is on him to prove it. He is to lead evidence. If the opinion of the medical expert examining the accused does not favour him, he can lead other permissible evidence to prove his mental condition. The prosecution has a right to rebut the evidence led by the accused. The procedure for trial of the fact of unsoundness of mind and consequent incapacity to make a defence by the accused postulates recording of evidence in support and in rebuttal of it. The statement of the doctor, who examined the accused and certifies the accused to be of unsound mind should be recorded as a witness. The accused cannot be permitted to get away from punishment by malingering unsoundness of mind. The party contesting such a plea has an inherent right to rebut it by evidence. After such evidence as may be recorded by the court, Section 329 of the Code again provides for performing three essential functions by it. The first is that such evidence has to be considered. The consideration is to be demonstrated by its appraisal on the record. The second essential condition is that the Court has to be satisfied of the fact, that is, the fact which is being tried first. After this satisfaction, the third element comes that a finding has to be recorded demonstrating the consideration of evidence and satisfaction about this fact. The three elements cannot be OP(CRL.) NO. 477 OF 2021 6 judicially dealt with unless the evidence as may be led by the person raising the plea referred in Section 329 of the Code is dealt in the manner indicated. Such a provision is clearly in consonance with the principle of fair administration of justice. Any violation by a Court in not examining proper evidence for recording a finding as directed by Section 329 of the Code would clearly vitiate the trial, as an insane or mentally unsound accused cannot understand the trial and appreciate the evidence against him and answer the charge because of his mental incapacity. Any trial of an unsound person violating the above procedure is vitiated. [See Gurjit Singh v. State of Punjab, 1986 KHC 1170 : 1986 Crl.L.J. 1505]” The proceedings before the Court do not indicate that an enquiry as contemplated by Section 329 of the Cr.P.C and as explained by this Court in paragraph 15 of Babu Velleriyan (supra) has been conducted by the court. Therefore, this Original Petition is allowed directing that the Sessions Court, Thrissur shall conduct an enquiry as contemplated by the provisions of Section 329 of the Cr.P.C into the question as to whether accused in S.C.No.256 of 2019 on the file of that court is in a condition to face trial. The enquiry shall be held as explained by this Court in paragraph 15 of Babu Velleriyan (supra). 6. Considering the submission of the learned counsel appearing for the de-facto complainant that any delay in concluding OP(CRL.) NO. 477 OF 2021 7 the trial may seriously prejudice the prosecution, it is directed that an enquiry as directed above, in terms of the provisions contained in Section 329 of the Cr.P.C shall be held and completed within a period of two months from the date of receipt of a certified copy of this judgment. The framing of charges in S.C.No.256 of 2019 on the file of the Sessions Court, Thrissur, shall be deferred till the enquiry is completed, as directed above. The Crl.M.C will stand disposed of as above. Sd/GOPINATH P. JUDGE DK OP(CRL.) NO. 477 OF 2021 8 ## **`APPENDIX OF OP(CRL.) 477/2021`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1 ``` - `A TRUE COPY OF THE RELEVANT PAGES OF FINAL REPORT IN CRIME NO. 410/2018 OF CHALAKUDI POLICE STATION.` - `Exhibit P2 A TRUE COPY OF THE RELEVANT PAGES OF TREATMENT RECORDS OF LAIJO.` - `Exhibit P3` - `A TRUE COPY OF THE MEDICAL REPORT DATED 23/02/2021.` - `Exhibit P4 A TRUE COPY OF THE JUDGMENT IN WPC NO.1466/2021 DATED 08/03/2021.` - `Exhibit P5 A TRUE COPY OF THE COMPUTER GENERATED DAILY STATUS DATED 23/09/2021 IN SC NO.256/2019.` - `Exhibit P6 A TRUE COPY OF THE COMPUTER GENERATED DAILY STATUS DATED 16/10/2021 IN SC NO.256/2019.` - `Exhibit P7 A TRUE COPY OF THE MEDICAL REPORT DATED 13.10.2021` - `Exhibit P8 A TRUE COPY OF THE ORDER DATED 23.10.2020 IN CRL.M.P.NO.1869/2020 IN S.C.256/2019 ON THE FILE OF THE SESSIONS COURT, THRISSUR` ## `RESPONDENT ANNEXURES` - `Annexure R2(a) THE TRUE PHOTOCOPY OF THE MEDICAL REPORT DATED 05.08.2019 OF THE APPLICANT'S HUSBAND FROM ASTER HOSPITAL`