Rosamma Joshy v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI THURSDAY, THE 5TH DAY OF JULY 2018 / 14TH ASHADHA, 1940 Bail Appl..No. 548 of 2018 CRIME NO. 2189/2017 OF ETTUMANOOR POLICE STATION , KOTTAYAM ## PETITIONER/ACCUSED ROSAMMA JOSHY, AGED 67 YEARS, W/O.JOSHY JOSEPH, PANDARAKKALAM HOUSE, ATHIRAMPUZHA P.O., ATHIRAMPUZHA, KOTTAYAM. BY ADV.SRI.NANDAGOPAL S.KURUP ## RESPONDENT/DEFACTO - COMPLAINANT: STATE OF KERALA, THROUGH THE SUB INSPECTOR OF POLICE, ETTUMANOOR POLICE STATION, KOTTAYAM, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. ## BY SR.PUBLIC PROSECUTOR SRI.C.K.SURESH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 29-06-2018, THE COURT ON 05-07-2018 PASSED THE FOLLOWING: ## **R.NARAYANA PISHARADI, J** ************************** B.A.No.548 of 2018 ------------------------------------------- Dated this the 5[th] day of July, 2018 ## **O R D E R** This is an application for anticipatory bail filed under Section 438 Cr.P.C. 2. The petitioner is the accused in the case registered as Crime No.2189/2017 of the Ettumanoor police station under Section 302 I.P.C. 3. The prosecution case is that on 22.12.2017, at about 16.15 hours, the petitioner threw her grandchild, a baby girl aged only 36 days, into the well in the compound of her house and thereby killed the child. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the case diary. 5. Learned counsel for the petitioner would submit that the petitioner is a person of unsound mind. Annexure A1 certificate is produced to prove this plea. It is a certificate issued from a private hospital. It is stated in this certificate that the B.A.No.548/2018 2 petitioner has been under treatment in that hospital from 03.03.2012 onwards for management of emotional disorder. This certificate is not at all sufficient to find that the petitioner is a person of unsound mind or that she was not capable of understanding the nature and consequences of her acts at the time of the incident. 6. It is specifically stated in the bail application filed on 22.01.2018 as follows: _“However, as the petitioner was affected by emotional disorder, she was incapable of understanding the nature of the acts done by her and was unable to appreciate the nature of her acts. But now, she is under strict medication and she is in a position to comprehend the nature of the proceedings initiated against her.”_ 7. The aforesaid averment in the bail application would show that the plea raised by the petitioner is of legal insanity. It is a plea which has to be established by the petitioner at the time of the trial of the case. The very averment in the bail application that the petitioner is now in a position to comprehend the nature B.A.No.548/2018 3 of the proceedings initiated against her would indicate that at present she is not a person of unsound mind. 8. Learned counsel for the petitioner would submit that the petitioner is still not capable of understanding the nature and consequences of her acts and she is not fit to stand the trial. If that be the plea of the petitioner, it is a matter to be considered by the Magistrate concerned under the provisions of Section 328 Cr.P.C. It will not be proper to grant anticipatory bail to a person who is of unsound mind. 9. Chapter XXV of the Code of Criminal Procedure, 1973 contains the provisions as to accused persons of unsound mind. Under Section 328(1) Cr.P.C, when a Magistrate holding an inquiry has reason to believe that the person against whom the inquiry is being held is of unsound mind and consequently incapable of making his defence, the Magistrate shall inquire into the fact of such unsoundness of mind, and shall cause such person to be examined by the civil surgeon of the district or such other medical officer as the State Government may direct, and thereupon shall examine such surgeon or other officer as a witness and shall reduce the examination to writing. The further B.A.No.548/2018 4 steps to be taken by the Magistrate are provided in Section 328(3) Cr.P.C and Section 330 Cr.P.C. Section 330 Cr.P.C provides for release of persons of unsound mind pending investigation or trial. 10. In **Jai Shanker v. State of H.P (AIR 1972 SC 2267)** , the Apex Court examined the scope of the provision contained in Section 464 of the Old Code and held as follows: _“ The situation arising in this case is governed by Section 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 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_ B.A.No.548/2018 5 _defence, he shall institute an inquiry into the fact of such unsoundness and shall cause the accused 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 to the unsoundness of mind of an accused person, the Magistrate is bound to inquire_ B.A.No.548/2018 6 _before he proceeds with the inquiry before him whether the accused is or is 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”. (emphasis supplied)_ 11. Either way, the petitioner is not entitled to get an order of anticipatory bail. If she is not a person of unsound mind now, the gravity of the offence allegedly committed by her prevents this Court from exercising the discretionary jurisdiction in her favour to grant the benefit of pre-arrest bail. On the other hand, if she is now a person of unsound mind, it is for the Magistrate concerned to take proper steps under Section 328 Cr.P.C in the event of her being produced or brought before him. 12. Learned counsel for the petitioner submitted that this Court may give a direction to the Magistrate concerned that on production of the petitioner before him by the person who is in charge of her, the Magistrate shall conduct an enquiry under Section 328(1) Cr.P.C. No such direction can be given by this Court. If the petitioner is arrested and produced before the Magistrate concerned or if she is produced before the Magistrate B.A.No.548/2018 7 by any person who is in charge of her, it is for the learned Magistrate to decide whether or not he shall conduct an enquiry as envisaged under Section 328 Cr.P.C. The Magistrate is obliged to conduct an enquiry under Section 328 Cr.P.C only if he has reason to believe that the petitioner is a person of unsound mind. This Court cannot substitute its opinion in place of the satisfaction of the Magistrate in that regard. 13. In the result, the prayer for granting anticipatory bail to the petitioner is rejected and the petition is dismissed. Nothing stated in this order will preclude the Magistrate concerned to take appropriate decision as to conduct any enquiry or not under Section 328 Cr.P.C on production of the petitioner before him by the person who is in charge of her or by the police. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr