Chapter- 4

Protection of Persons with Mental Insanity under

Constitutional and Criminal Law in India:
Substantive and Procedural Aspects

The law relating to mental insanity is scattered in many Acts in India, viz., the
Indian Lunacy Act, 1912, the Indian Penal Code, 1860 (Section 84), the Code of
Criminal Procedure, 1973 (Sections 328 to 339) etc. Multiplicity of laws
concerning a particular subject creates confusion as well as difficulty for the
common man. Commenting on the baneful effect of proliferation of laws Lord
Gardiner once sarcastically observed that if one wanted to know one’s rights and
liabilities as a tenant in England one had to study about fifty four Acts of
Parliament, hundreds of statutory rules and when he had done that, he had still
to wade through hundreds of decisions of courts of the law. He further observed
that, it was his aim therefore, to consolidate and simplify the laws in such a
fashion as to be able to hold a single volume and say “Here are the laws of
England”.206 Whether this pious desire of Lord Gardiner would ever be fulfilled
still remains a doubtful proposition but one fact becomes crystal clear from this
somewhat unusual story. It only shows that even a person well versed in law
feels confused if he has to search a number of Acts for getting the requisite
information on a particular subject.

The Santhanam Committee on Corruption207 also provides more or less in the

same fashion when it recommended in its report that instead of piecemeal

206
See R. Deb, “Reform of the India Lunacy Act” 17 Journal of the Indian Law Institute (1975)
pp. 398-409 at p. 401. See also, The House of Commons, The Law Commission Seventh
Programme of Law Reform (1999) pp. 18 and 43.
207
In 1962, Lal Bahadur Sastri appointed Santhanam to preside over the corruption committee.
Because of its thorough investigative work and recommendations, the Committee earned a

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legislations on the subject of corruption and other allied offences, it would be
ideal to have a comprehensive chapter on social and economic offences in the
body of the Indian Penal Code itself. In India, the law relating to protection of
insanity is duly protected or not is a debatable issue over time. It is relevant to
note that the persons with mental insanity is a part of persons with disabilities .
Thus, there are certain more legislations dealing with the protection of persons
with disabilities such as the Mental Health Act, 1987, the Rehabilitation Council of
India Act. 1992, the Persons with Disabilities (Equal Opportunities, Protection of Right
and Full Participation) Act, 1995, the National Trust for Welfare of Persons with
Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 etc
besides the Constitutional protections. Before examination of utility of these
legislations it is essential to examine the scope and ambit of the protection of persons
with insanity under criminal law referring Constitutional aspect of law of person
with mental insanity in India. This Chapter is primarily devoted to this aspect.

I. Protection of Persons with Mental Insanity under the Constitution of

India

Under the Constitution of India, a large number of rights have been recognised for
the protection and enjoyment of all persons in India. However, where would the
rights of persons with insanity fit in such a scheme of the Constitution? Although
the issue has not come to the court for consideration, the Article 41 of the
Constitution specifically provides for the protection of the persons with disabilities.

The State is directed by Article 41 to ensure to the people within the limits of its
economic capacity and development, the following basic factors of life namely, (a)

reputation as Santhanam's Committee on Corruption. In his 1976 'Code of Conduct for persons
in power, authority or positions of trust in our country', he explicitly included ministers and
members of Parliament and state legislatures. There should be no use of position for personal
or family advantage, read his code; no actions motivated by considerations of party, religion,
caste, or community; no unofficial dealings with businessmen or hospitality or gifts accepted
from them or other private persons. See Granville Austin, Working a Democratic Constitution:
A History of the Indian Experience. (Oxford University Press, New Delhi (1999) at p. 642.

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employment, (b) education and (c) public assistance in case of unemployment, old
age, sickness and disablement and in other cases of undeserved want. In the modern
world of unemployment and under-employment, everyone ought to have a right to a
decent living for which the right to work should be made a fundamental right. Some
people have even suggested to transfer Article 41 from Part IV to Part III of the
Constitution.

In Sukhnandan Thakur v. State of Bihar,208 it was held that the expression ‘public
assistance’ in Article 41 refers to economic relief to people who are needy. But this
Article has no bearing on the interpretation of Article 16. The Supreme Court, in
Delhi Development Horticulture Employees’ Union v. Delhi Administration,209
observed that the directive to make effective provisions for securing the right to
work is qualified by its economic capacity and development and thus, court found
that persons employed under scheme like Jawaharlal Nehru Rozgar Yojna cannot
claim regularisation of their employment when the scheme come to an end.
However, this Constitutional provisions while important lend themselves to be
questioned on the following grounds: (i) Are these provisions legally
enforceable? (ii) What are the legal differences between Fundamental Rights
and Directive Principles of State policy? (iii) Are these provisions are binding
on State? And the answers to these questions are in the doctrinal controversy
between enforceability and unenforceability in the Indian Constitutional law. 210

Despite this dichotomous problem, as citizens of India, mentally ill persons are
entitled to all these fundamental rights which are guaranteed to each and every

208
AIR 1957 Pat 617.
209
AIR 1992 SC 789.
210
Indian Drugs and Pharmaceuticals Ltd. v. Workman, Indian Drugs and Pharmaceuticals
Ltd., 2006 (12) SCALE 1: (2007) 1 SCC 408; Confederation of Ex-Servicemen Associations
and Ors. v. Union of India and Ors., AIR 2006 SC 2945 : 2006 (8) SCALE 399; Indian
Council of Legal Aid & Advice v. Union of India, MANU/ SC/ 2053/ 1998 : (2000) 10 SCC
542

123
citizen by the Constitution of India. Due to disability mentally ill persons are
not deprived from enjoying basic rights. Article 21 of the Constitution provides
right to life and liberty. This right is available to everyone without any
discrimination. It includes the right to live with human dignity and right to
health. Mentally ill persons are entitled to receive mental health care and
humane living conditions in the mental hospitals. Right to life includes
something more than mere survival of animal existence. It includes, right to
live, to work as far as possible in the community, to privacy and to lead normal
family life. The seriously mentally ill are a very special group with disabilities.
This group has right to live in the society along with other citizens and ensuring
their right to protection from exploitation. Constitution in Part IV provides
Directive Principles of State Policy which clearly states that it is the duty of
State to raise the level of nutrition and standard of living and to improve public
health. In the light of this Constitutional framework we now propose to discuss
in the following pages the various recognized Constitutional rights for all
persons in India, the dimensions as well various un-enumerated rights to life
under Article 21 for the purpose of developing al link between the protection
given under criminal law and the Constitution.

(A) Rights Recognised in the Constitution of India: Applicable for All

The Constitution of India is the highest law of the land and all laws, national or
local, customary or statutory, past and future draw their validity and legitimacy
from it.211 Article 13 of the Constitution indicates that laws inconsistent with or
in derogation of the Fundamental Rights contained in Part III of the Constitution
211
Indra Das v. State of Assam, 2011 (2) SCALE 312: (2011) 3 SCC 380; Dev Dutt v. Union of
India, 2008 (7) SCALE 403: (2008) 8 SCC 725; Government of Andhra Pradesh v. Smt. P.
Laxmi Devi, AIR 2008 SC 1640: (2008) 4 SCC 720; Union of India v. Association for
Democratic Reforms, AIR 2002 SC 2112: 2001 (4) SCALE 110; Kanhiya Lal v. R. K. Trivedi,
AIR 1986 SC 111: (1985) 4 SCC 628.

124
would "to the extent of such inconsistency, be void"212. In its form and structure,
the Constitution follows the Western liberal model of Constitutionalism, but it
has several features founded on Indian traditions and the special needs and
circumstances of the society. In Ram Jethmalani v. Union of India,213the Apex
Court observed that the scrutiny and control of activities, whether in the
economic, social or political contexts, by the State, in the public interest as
posited by modern Constitutionalism, is substantially effectuated by the State
"following the money." The Preamble to the Constitution of India emphasises
the principle of equality as basic to the Constitution214. Equality of opportunity
to all irrespective of their caste, colour, creed, race, religion and place of birth
which constitutes one of the core values of the Universal Declaration of Human
Rights also forms part of Preamble to the Constitution of India.215 JUSTICE,
LIBERTY, EQUALITY, including social, economic and political justice, the
golden goals set out in the Preamble to the Constitution of India is to be
achieved.216 It secures, as one of its objects, fraternity assuring the dignity of the
individual and the unity and integrity of the nation to “WE, THE PEOPLE OF
INDIA.”217

For achieving the various goals set out in the Preamble, framers of the
Constitution included a set of provisions in Part III titled “Fundamental Rights”
and another set of provisions in Part IV titled “Directive Principles of State
Policy”. The provisions contained in Part III of the Constitution, by and large

212
Shin Satellite Public Co. Ltd. v. Jain Studios Limited, AIR 2006 SC 963: (2006) 2 SCC 628.
213
2011 (6) SCALE 691: 2011 (4) UJ 2237 (SC).
214
Indira Sawhney v. Union of India, AIR 2000 SC 498: (2000) 1 SCC 168.
215
State of Bihar v. Upendra Narayan Singh, 2009 (4) SCALE 282: (2009) 5 SCC 65.
216
P. A. Inamdar v. State of Maharashtra, AIR 2005 SC 3226: (2004) 8 SCC 139.
217
Ashoka Kumar Thakur v. Union of India, 2008 (5) SCALE 1: (2008) 6 SCC 1.

125
contain negative injunctions against State’s interference with the Fundamental
Rights of individuals and group of individuals and also provide for remedy
against violations of such rights by direct access to the Apex Court of the
country. The inclusion of a set of Fundamental Rights in the Constitution of
India has its genesis in the forces that operated in the national struggle during
British rule. Essential rights like personal freedom, protection of one's life and
limb and of one's good name, derived from the Common Law and the principles
of British jurisprudence, were well accepted and theoretically recognized by
various British enactments.218 Part IV enumerates State's obligation to make
policies and enact laws for ensuring that weaker segments (have-nots) of the
society are provided with opportunities to rise to a level where they can
compete with others (haves).

Part III, entitled "Fundamental Rights", primarily, but not exclusively, contains
what are called the civil and political rights and may roughly be compared with
ICCPR, while Part IV, "Directive Principles of State Policy" contains what may
primarily, but not exclusively, be called social and economic rights, roughly
comparable with the ICESCR. In Part III, we also have provisions for abolition
of untouchability, bonded labour, traffic in human beings, and also for
prohibition of children employed in factories or in other kinds of hazardous
employments. But more importantly, their enforcement in a meaningful sense
involves taking effective economic measures, and mere paper abolition by
enacting necessary laws will not be enough. The difference between the
Fundamental Rights and Directive Principles in the Constitution lies in this that
the former are primarily aimed at assuring political freedom of the citizens by
protecting them against excessive State action while the latter aim at the
securing social and economic freedoms by appropriate State action.
Fundamental Rights intend to foster the ideal of a political democracy and to
218
State of Bihar v. Upendra Narayan Singh, 2009 (4) SCALE282: (2009) 5 SCC 65.

126
prevent the establishment of authoritarian rule; hence, they are of no value
unless they can be enforced through resorting to court action. So they are made
justifiable. On the other hand, it is also evident that notwithstanding their great
importance, the Directive Principles cannot in the very nature of things be
enforced in a court of law.219 This does not imply that Directive Principles are
any less important than Fundamental Rights or that they are not binding on the
various organs of the State.220

Part III of the Constitution consists of Articles 12 to 35, divided into eight
groups. Articles 12 and 13 are “General”. The former defines “the State”, while
the latter invalidates existing laws inconsistent with the Fundamental Rights and
prohibits the making of inconsistent law in future. Articles 14 to 18 are grouped
as “Right to Equality”; Articles 19 to 22 as "Right to Freedom"; Articles 23 and
24 as “Right against Exploitation”; Articles 25 to 28 as “Right to Freedom of
Religion”; Articles 29 and 30 as “Cultural and Educational Rights”. Article 31,
which constituted the “Right to Property”, was omitted in 1979. Articles 31-A
to 31-C are grouped as “Savings of Certain Laws” and Articles 32 to 35 are
grouped as “Right to Constitutional Remedies”. Thus, Fundamental Rights may
be classified into: (i) right to equality, (ii) right to freedom, (iii) right against
exploitation, (iv) right to freedom of religion, (v) cultural and educational rights,
(vi) right to property, and (vii) right to constitutional remedies. They are the
rights of the people preserved by our Constitution; “Fundamental Rights” are
the modern name for what have been traditionally known as “natural rights”.
These are moral rights which every human being everywhere at all times ought
to have simply because of the fact that in contradiction with other beings, he is
219
Article 37, Constitution of India. On the issue of enforceability of Directive Principles, see ,
Unni Krishnan v. State of A.P., AIR 1993 SC 2178: (1993) 1 SSC 645; Tamil Nadu v. L. Abu
Kavur, AIR 1984 SC 326: 1983 (2) SCALE 541; Bandhua Mukti Morcha v. Union of India,
AIR 1984 SC 802: (1984) 3 SSC 161.
220
Akhil Bharatiya Soshit Karamchari Sangh v. Union of India, AIR 1981 SC 298: (1981) 1 SCC
246.

127
rational and moral. They are the primordial rights necessary for the
development of human personality. They enable a man to chalk out his own life
in the manner he likes best. The Constitution, in addition to the well-known
Fundamental Rights, also included the rights of the minorities, untouchables and
other backward communities.221

Part IV of the Constitution consists of Articles 36 to 51 and contains the

“Directive Principles of State Policy” fundamental to the governance of the
country and it is the duty of the State to apply these principles in making law.
Article 37 makes it clear that unlike the provisions of Part III, the directives are
not “judicially enforceable”, but they shall, nevertheless, be fundamental in the
governance of the country. The 1937 Constitution of Eire contained a chapter
titled "Fundamental Rights" and another "Directive Principles of State
Policy"222. Articles 37 to 39 of the Constitution of India are principally based on
Article 45 of the Constitution of Eire with certain distinctions. Unlike Article 45
of the Constitution of Eire, Article 37 of the Constitution of India does not
prohibit the courts from taking contingence of the directives. In purely
jurisprudential terms, a distinction is drawn between the enforceability of a
provision and the same being “judicially cognizable.”223 Therefore, it was felt
that some of the principles laid down in the Directive Principles of State Policy,
which had its influence in the governance of the country, would not be achieved
if those Articles were literally interpreted and applied. The Directive Principles
of the State Policy lay down the fundamental principles for the governance of
the country, and through those principles, the State is directed to secure that the
ownership and control of the material resources of the community are so
221
Maneka Gandhi v. Union of India, AIR 1978 SC 597: (1978) 1 SCC 248.
222
Umaji Keshao Meshram v. Radhikabai, AIR 1986 SC 1272: 1986 (1) SCALE 681.
223
Sir Ivor Jennings, The Law and the Constitution (University of London Press, 1959) Ch. III,
Sec. 2.

128
distributed as to best sub-serve the common good and that the operation of the
economic system does not result in the concentration of wealth and means of
production to the common detriment. Further, it was also noticed that the
fundamental rights are not absolute but subject to the law of reasonable
restrictions in the interest of the general public to achieve the above objectives
specially to eliminate Zamindari system.224The Apex Court initially, for
example, in State of Madras v. Srimathi Champakam Dorairajan,225held that in
case of conflict between a Fundamental Right and the Directive Principle, the
former takes precedence and the latter must run subsidiary to the former.
However, in later years the Court’s philosophy underwent a change. In Chandra
Bhavan,226Kesavananda Bharati,227and Minerva Mills,228the Apex Court
embraced the view that Parts III and IV of the Constitution should be treated as
of equal value and the Court’s attempt should be to bring about harmony
between the two instead of reading a conflict.

(B) Dimensions of Right to Life under Article 21: Universally Applicable

(i) General

Right to life is a recognized right under International Covenant on Civil and

Political Rights. Article 6(1) of the Covenant recognizes that every human
being has the inherent right to life. This right shall be protected by law. No one
shall be arbitrarily deprived of his life. Further, Article 9 (1) of the Covenant

224
K.T. Plantation v. State of Karnataka, JT 2011 (8) SC 65: 2011 (8) SCALE 583; Akhil
Bhartiya Upbhokta Congress v. State of Madhya Pradesh, AIR 2011 SC 1834: (2011) 5 SCC
29.
225
AIR 1951 SC 226: (1951) 2 SCR 525.
226
Chandra Bhavan v. State of Mysore, AIR 1970 SC 2042: (1969) 3 SCC 84.
227
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461: (1973) 4 SCC 225.
228
Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789: (1980) 2 SCC 591.

129
provides that everyone has the right to liberty and security of person. No one
shall be subjected to arbitrary arrest or detention. No one shall be deprived of
his liberty except on such grounds and in accordance with such procedure as are
established by law. The 1950 European Convention on Human Rights contains
a most elaborate and detailed codification of the rights and safeguards for the
protection of life and personal liberty against arbitrary invasion. Article 21 of
the Constitution of India states: “No person shall be deprived of his life and
personal liberty except according to procedure established by law.” Thus,
Article 21 guarantees protection of life and liberty which is the most important
fundamental right guaranteed by the Constitution. Article 21 can be said to be
the “heart and soul” of the Fundamental Rights.229

The right to life enshrined in Article 21 cannot be restricted to “mere animal

existence”. It means something much more than just physical survival. It is
evident that Article 21 of the Constitution of India, though so framed as to
appear as a shield operating negatively against executive encroachment over
something covered by that shield, is the legal recognition of both the protection
or the shield as well as of what it protects which lies beneath that shield. The
Apex Court in Maneka Gandhi v. Union of India230observed that Article 21
clubs life with liberty and when we interpret the colour and content of
“procedure established by law”, we must be alive to the deadly peril of life
being deprived without minimal processual justice, legislative callousness
despising “hearing” and fair opportunities of defence. And this realization once
sanctioned, its exercise will swell till the basic freedom is flooded out. Hark
back to Article 10 of the Universal Declaration to realize that human rights are

229
Siddharam Satlingappa Mhetre v. State of Maharashtra , AIR 2011 SC 312: 2010 (12)
SCALE 691; Tirupur Dyeing Factory Owners Association v. Noyyal River Ayacutdars
Protection Association , AIR 2010 SC 3645: (2009) 9 SCC 737.
230
AIR 1978 SC 597: (1978) 1 SCC 248.

130
but a verbal hollow if the protective armour of audi alteram partem is deleted.
"Life” and "liberty" which occurs in the Fifth and Fourteenth Amendments to
the US Constitution as observed by Field J., in Munn v. Illinois231of the US
Supreme Court means:

"By the term "life" as here used something more than mere
animal existence and the inhibition against the deprivation of
life extends to all those limits and faculties by which life is
enjoyed. The provision equally prohibits the mutilation of the
body or amputation of an arm or leg or the putting out of an eye
or the destruction of any other organ of the body through which
the soul communicates with the outer world…by the term
liberty, as used in the provision something more is meant than
mere freedom from physical restraint or the bonds of a prison."

Relying on the above observation of the US Supreme Court in Kharak Singh v.

State of U.P.,232 the Apex Court of India held that Field J. correctly defined the
right to life corresponding to Article 21 of our Constitution. In this case, both
majority and minority judges quoted it with approval and felt that it correctly
defined the scope of the right to life under Article 21 of the Constitution of
India. The Court observed: “We have already extracted a passage from the
judgment of Field, J. in Munn v. Illinois233 where the learned Judge pointed out
that "life" in the Fifth and Fourteenth Amendments of the US Constitution
corresponding to Article 21, means not merely the right to the continuance of a
person's animal of existence, but a right to the possession of each of his organs -

231
94 U. S. 113 (1877).
232
AIR 1963 SC 1295: (1964) 1 SCR 332.
233
94 U. S. 113 (1877).

131
his arms and legs, etc.” Justice Field’s statement of law has also been referred to
with approval in other cases by the Apex Court.234 In Nandini Sundar v. State of
Chhattisgarh,235 the Apex Court held that within the ambit of all those "limits
and faculties by which life is enjoyed" also lies respect for dignity of a human
being, irrespective of whether he or she is poor, illiterate, less educated, and less
capable of exercising proper choice. The State has been found to have the
positive obligation, pursuant to Article 21, to necessarily undertake those steps
that would enhance human dignity, and enable the individual to lead a life of
dignity. The Preamble of our Constitution affirms as the goal of our nation, the
promotion of human dignity. Now the question which arises is whether the right
to life is limited only to protection of limb or faculty or does it go further and
encompass something more? In Francis Coralie Mullin v. Union Territory of
Delhi,236the Apex Court observed:

We think that the right to life includes the right to live with
human dignity and all that goes along with it, namely, the bare
necessaries of life such as adequate nutrition, clothing and
shelter and facilities for reading, writing and expressing one-
self in diverse forms, freely moving about and mixing and
commingling with fellow human beings… Every act which
offends against or impairs human dignity would constitute
deprivation pro tanto of this right to live and it would have to

234
For example, Nandini Sundar v. State of Chhattisgarh, 2011 (6) SCALE 839: 2011 (4) UJ
2409 (SC); Kapila Hingorani v. State of Bihar, 2003 (4) SCALE 712: (2003) 6 SCC
1;Islamic Academy of Education v. State of Karnataka, AIR 2003 SC 3724: (2003) 6 SCC
697; Unni Krishnan v. State of Andhra Pradesh, AIR 1993 SC 2178: (1993) 1 SCC 645; Olga
Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180: 1985 (2) SCALE5; Charles
Sobraj v. Supdt. Central Jail, Tihar, New Delhi, AIR1978SC1514: (1978)4SCC104; Sunil
Batra v. Delhi Administration, AIR 1978 SC 1675: (1980) 3 SCC 488.
235
2011 (6) SCALE 839: 2011 (4) UJ 2409 (SC).
236
1981 (1) SCALE 79: (1981) 1 SCC 608.

132
 be in accordance with reasonable, fair and just procedure
established by law which stands the test of other Fundamental
Rights.

Article 6 of the International Covenant on Economic, Social and Cultural

Rights recognise the right to work, which includes the right of everyone to the
opportunity to gain his living by work which he freely chooses or accepts, and
will take appropriate steps to safeguard this right. In Olga Tellis v. Bombay
Municipal Corporation,237 the Apex Court held that Article 39(a) of the
Constitution, which is a Directive Principle, provides that the State shall, in
particular, direct its policy towards securing that the citizens, men and women
equally, have the right to an adequate means of livelihood. Article 41, another
Directive Principle, provides, inter alia, that the State shall, within the limits of
its economic capacity and development, make effective provision for securing
the right to work in cases of unemployment and undeserved want. Article 37
provides that the Directive Principles, though not enforceable by any court, are
nevertheless fundamental in the governance of the country. The Principles
contained in Articles 39(a) and 41 must be regarded as equally fundamental in
the understanding and interpretation of the meaning and content of Fundamental
Rights. If there is an obligation upon the State to secure to the citizens adequate
means of livelihood and the right to work, it would be sheer pedantry to exclude
the right to livelihood from the content of the right to life. The State may not, by
affirmative action, be compelled to provide adequate means of livelihood or
work to the citizens. But, any person, who is deprived of his right to livelihood
except according to just and fair procedure established by law, can challenge the
deprivation as offending the right to life conferred by Article 21.

237
AIR 1986 SC 180: 1985 (2) SCALE 5.

133
(ii) Right against Cruel, Inhuman and Degrading Treatment: A Right
Universal in Nature

Article 5 of the Universal Declaration of Human Rights and Article 7 of the

International Covenant on Civil and Political Rights guarantees protection
against torture or cruel, inhuman or degrading treatment. Does an act of forcibly
subjecting a person constitutes “cruel, inhuman or degrading treatment”, when
considered by itself ? Even though the Constitution of India does not explicitly
enumerate a protection against “cruel, inhuman or degrading punishment or
treatment” in a manner akin to the Eighth Amendment of the US Constitution,
the Apex Court has discussed this aspect in several cases. In Francis Coralie
Mullin v. Union Territory of Delhi,238the Apex Court held that any form of
torture or cruel, inhuman or degrading treatment would be offensive to human
dignity and constitute an inroad into the right to live and it would, on this view,
be prohibited by Article 21 unless it is in accordance with procedure prescribed
by law, but no law which authorizes and no procedure which leads to such
torture or cruel, inhuman or degrading treatment can ever stand the test of
reasonableness and non-arbitrariness; it would plainly be unconstitutional and
void as being violative of Articles 14 and 21. It would thus be seen that the right
to protection against torture or cruel, inhuman or degrading treatment which is
enunciated in Article 5 of the UDHR and Article 7 of the ICCPR is implicit in
Article 21.

Judgments such as D. K. Basu v. State of West Bengal239 have stressed upon the
importance of preventing the “cruel, inhuman or degrading treatment” of any

238
1981 (1) SCALE 79: (1981) 1 SCC 608.
239
AIR 1997 SC 610: (1997) 1 SCC 416 . See also, Abu Salem v. State of Maharashtra , JT
2010 (10) SC 202: 2010 (9) UJ 4341 (SC); Santosh Kumar v. State of Maharashtra, 2009
(7) SCALE 341: (2009) 6 SCC 498; Dalbir Singh v. State of U.P.,AIR 2009 SC 1674:
(2009) 11 SCC 376.

134
person who is taken into custody. In respect of the present case, any person who
is forcibly subjected to the impugned tests in the environs of a forensic
laboratory or a hospital would be effectively in a custodial environment for the
same. The presumption of the person being in a custodial environment will
apply irrespective of whether he/she has been formally accused or is a suspect
or a witness. Even if there is no overbearing police presence, the fact of physical
confinement and the involuntary administration of the tests are sufficient to
constitute a custodial environment for the purpose of attracting Article 20(3)
and Article 21. It is necessary to clarify this aspect because we are aware of
certain instances where persons are questioned in the course of the
investigations without being brought on the record as witnesses. Such omissions
on part of investigating agencies should not be allowed to become a ground for
denying the protection available to a person in custody. In Sube Singh v. State of
Haryana,240the Apex Court again considered exhaustively the question of the
importance of preventing the “cruel, inhuman or degrading treatment” of any
person and held:

Any form of torture or cruel, inhuman or degrading treatment

would fall within the inhibition of Article 21 of the Constitution,
whether it occurs during investigation, interrogation or otherwise.
If the functionaries of the Government become law-breakers, it is
bound to breed contempt for law and would encourage lawlessness
and every man would have the tendency to become law unto
himself thereby leading to anarchy. No civilized nation can permit
that to happen. Does a citizen shed off his fundamental right to
life, the moment a policeman arrests him? Can the right to life of a

240
AIR 2006 SC 1117: (2006) 3 SCC 178.

135
 citizen be put in abeyance on his arrest? The answer, indeed, has to
be an emphatic “No”.

(iii) Un-enumerated Rights under Article 21 for All

A large number of un-enumerated rights are recognized under Article 21 of the

241
Constitution of India. In Minerva Mills v. Union of India, the Constitution
Bench of the Apex Court held that the Fundamental Rights and the Directive
Principles are two wheels of the chariot in establishing the egalitarian social
order. The Apex Court held that the right to life enshrined in Article 21 of the
Constitution means something more than survival of mere animal
existence.242The right to live with human dignity,243 right to means of
livelihood244, right to health,245 right to safe drinking water,246 right to pollution
free environment247, right to education,248 right to shelter,249right to travel
abroad,250 right to speedy trial,251 right to gender equality,252 right to free legal

241
AIR1980SC1789: (1980) 3 SCC 625.
242
Kharak Singh v. State of U.P, AIR 1963 SC 1295: (1964) 1 SCR 332.
243
Francis Coralie Mullin v .Union Territory of Delhi, AIR (1981) SC 746: (1981) 1 SCC 608.
244
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180: (1985) 3 SCC 545.
245
Consumer Education and Research Center v. Union of India, AIR 1995 SC 922: JT 1995 (1)
SC 636.
246
APPCB v. M.V. Naidu, AIR 1999 SC 822.
247
M.C. Mehta v. Union of India, AIR 1987 SC 965: 1986 (1) SCALE 199.
248
Unni Krishnan v. State of Andhra Pradesh, AIR 1993 SC 2178: (1993) 1 SCC 645.

249
Shantistar Builders v. N.K. Totame, AIR 1990 SC 630: (1990) 1 SCC 520.
250
Maneka Gandhi v. Union of India, AIR 1978 SC 597: (1978) 1 SCC 248.
251
Common Cause v. Union of India, AIR 1997 SC 1539: 1996 (8) SCALE 557.

252
Vishaka v. State of Rajasthan, AIR 1997 SC 3011: JT 1997 (7) SC 384.

136
assistance,253 right to compensation,254 right to prisoners to interview,255 right to
a fair trial,256 right to a quality life,257 right against solitary confinement,258 right
against bar fetter,259 right against handcuffing,260 right against delayed
execution,261 right against custodial violence,262and right against public
hanging263 have been held to be part of right to life. Besides, social justice264 has
been held to be Fundamental Right as well as Directive Principles are
forerunners of the UN Convention on Right to Development as inalienable
human right.265All these rights have the direct bearing for the protection of the
persons with mental insanity in India.266

253
M.H.Hoskot v. State of Maharashtra, AIR 1978 SC 1548: (1978) 3 SCC 544.
254
Rudul Sah v. State of Bihar, AIR 1983 SC 1086: (1983) 4 SCC 141.
255
Prabha Dutt v. Union of India, AIR 1982 SC 6: (1982) 1 SCC 1.
256
Police Commissioner, Delhi v. Registrar, Delhi High Court, AIR 1997 SC 95: (1996) 6 SCC
323.

257
Lal Tiwari v. Kamala Devi and Ors., AIR 2001 SC 3215: JT 2001 (6) SC 88.
258
Sunil Batra v. Delhi Administration, AIR 1978 SC 1675: (1978) 4 SCC 494.
259
Charles Sobraj v. Supt. Central Jail, AIR 1978 SC 1514: (1978) 4 SCC 104.

260
Prem Shankar v. Delhi Administration, AIR 1980 SC 1535: (1980) 3 SCC 526.

261
T.V. Vatheeswaran v. State of Tamil Nadu, 1983 (1) SCALE 115: (1983) 2 SCC 68.

262
Sheela Bhasre v. State of Maharashtra, AIR 1983 SC 378: (1983) 2 SCC 96.

263
Attorney-General v. Lachma Devi, 1986 Cri L J 364.

264
Consumer Education and Research Center v. Union of India, AIR 1995 SC 922: JT 1995 (1)
SC 636.
265
Air India Statutory Corporation v. United Labour Union, 1996 (9) SCALE 70: (1997) 9 SCC
377.
266
See A. K. Sikri, “ Human Rights of the Disabled: World in a Slow Motion” 38 Journal of
Constitutional and Parliamentary Studies (2004) pp. 1-48.

137
II. Specific Protection for Persons with Mental Insanity under Indian Penal
Code

The Indian Penal Code, 1860 provides a detail scheme of protection for persons
with insanity. Section 84 of Indian Penal Code provides a defence for a person
with unsoundness of mind who is in a criminal charge on the basis that that one
who is insane has no mind and hence cannot have the necessary mens rea to
commit a crime.267 Being deprived of free will a mad man is placed in even a
worse predicament than a child because the latter can at least control his will
and regulate his conduct, whereas the former cannot. In fact, a mad man is
268
punished by his own madness - Furiousus furore sui punier. Moreover, the
act of an insane person being unintentional and involuntary, no court can correct
him by way of punishment.269 But at the same time the society has to be
protected against the attack of maniacs. Accordingly, a provision has been made
under Section 330 of the Criminal Procedure Code, 1973 for the detention of
such persons in lunatic asylums.270 A detail deliberation of the specific protection
for persons with insanity under criminal law is needed.

(A) Indian Penal Code and Protection of Persons

with Mental Insanity

Section 84 of the Indian Penal Code, 1860 deals with act of a person of unsound
mind. Section 84 provides: “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”. Unsoundness of mind is commonly termed insanity and according to
medical science, is a disorder of the mind which impairs the mental faculties of
267
Gour, Penal Law of India, (2000) pp. 603-705 at p. 602.
268
Sanna Eranna v. State of Karnataka (1983) 1 Kant LJ 115:1983 Cri LJ 619.
269
Jerome Hall, General Principles of Criminal Law (1960) p. 449.
270
Sections 328-329 of the Criminal Procedure Code, 1973. See K. M. Sharma, “Defence of
Insanity in Indian Criminal Law, 7 Journal of the Indian Law Institute (1965) pp. 325-383.

138
a man. In other words, insanity is another name for mental abnormality due to
various factors and exists in various degrees. Insanity is popularly denoted by
idiocy, madness, lunacy, to describe mental derangement, mental disorder and
all the other forms of mental abnormality known to medical science. Thus an
uncontrollable impulse driving a man to kill or wound would come within the
scope271 of the medical definition of insanity. However, insanity in law differs
markedly from the medical concept. Insanity in law means a disorder of the
mind which impairs the cognitive faculty, i.e., the reasoning capacity of a man,
to such an extent as to render him incapable of understanding the nature and
consequences of his actions. It excludes from its purview insanity which could
be engendered by emotional or volitional factors. In other words, every
aberrative act performed by a person-cannot exempt him from criminal
responsibility; it is only insanity of a particular or appropriate kind which is
regarded as insanity in law that will exempt a man from criminal liability.

(i) Ingredients of Mental Insanity under Section 84

To invoke the benefit of Section 84, it must be proved that at the time of
commission of the offence, the accused was (insane) non compos mentis (not of
sound mind) and that the unsoundness of mind was of such a degree and nature
as to fulfil one of the tests laid down in the Section. These are: first, the accused
was incapable of knowing the nature of the act, and secondly, that the accused
was precluded by reason of unsoundness of mind from understanding that what
he was doing was either wrong or contrary to law.

The first category covers two situations, namely, automatism and mistake of
fact due to unsoundness of mind as a defence. For instance, if a mad man cuts
271
See Essays on the Indian Penal Code, ILI (1962), pp. 73-83; Hall Jerome, 65, Yale Law
Journal (1956) pp. 761 at pp. 781 .

139
off the head of a man sleeping on the road, because it would be fun to watch
him searching for his head when he awoke, the act shows that he did not know
the nature and quality of his act. In fact, he has no idea that his fun could never
happen, the moment the head was separated from the rest of the man’s body, as
the man would never recover consciousness. The second category covers those
cases wherein a man by reason of delusion is unable to appreciate the
distinction between right and wrong. For instance, in Shibo Koeri in which the
accused killed his uncle by severing his head and neck with a sword while
shouting ‘Victory to Kali’, and thereafter attempted to strike others including
his father, it was held that the accused’s case fell within the latter part of the
Section.272 It was found that the accused was suffering from a fit of insanity at
the time he attacked the deceased with the sword and was by reason of
unsoundness of mind, incapable of knowing that he was doing an act which was
wrong or contrary to law, and hence he was acquitted of the charge of murder.
The law on the point has been well summarised by their Lordships of the
Calcutta High Court in Kader Nasayer Shah in the following words: It is only
unsoundness of mind which materially impairs the cognitive faculties of the
mind that can form a ground of exemption from criminal responsibility, the
nature and the extent of the unsoundness of mind required being such as would
make the offender incapable of knowing the nature of the act, or that he is doing
what is (i) wrong or (ii) contrary to law. A person strikes another, and in
consequence of an insane delusion thinks he is breaking a jar. Here he does not
know the nature of the act. Or he may kill a child under an insane delusion that
he is saving him from sin and sending him to heaven. Here he is incapable of
knowing by reason of insanity that he is doing what is morally wrong. Or he
may under insane delusion believe an innocent man whom he kills to be a man
that was going to take his life; in which case by reason of his insane delusion he

272
Shibo Koeri, (1905-06) 10 CWN 725.

140
is incapable of knowing that he is doing what is contrary to the law of the
land.273

In Hari Singh Gond v. State of Madhya Pradesh274 and Sidhapal Kamala Yadav
v. State of Maharashtra,275 the Supreme Court reiterated that a person is
exonerated from criminal liability on the ground of unsoundness of mind if he,
at the time of doing the act, is either incapable of knowing (a) the nature of the
act, or (b) that he is doing what is either wrong or contrary to law. Mere
abnormality of mind or partial delusion, irresistible impulse or compulsive
behavior of a psychopath does not ipso facto afford protection under section 84,
Indian Penal Code. Similarly, mere fact that an accused is conceited, odd,
irascible and his brain is not quite all right, or that the physical and mental
ailments from which he suffered had rendered his intellect weak and had
affected his emotions and will, or that he had committed certain unusual acts in
the past, or that his behavior was queer, is not, by itself, sufficient to bring
section 84 into play. The crucial point of time at which the unsoundness of mind
needs to be established is the time when the crime was actually committed.
Unsoundness of mind prior or subsequent to the commission of crime cannot
absolve him of liability.

In Rajesh Kumar v. State of NCT of Delhi,276 the appellant-accused was

sentenced by the trial court to death for brutal killing of two children of very
tender age of 54 months and of 9 months of his wife’s brother, who refused to
lend him money for starting business. The Delhi High Court, while confirming
the death sentence, also ruled that every mental imbalance cannot be equated
273
1896 ILR 23 Cal 604 (608).
274
AIR 2009 SC 31.
275
AIR 2009 SC 97.
276
MANU/DE/1652/2009.

141
with ‘unsoundness of mind’ and it, by itself, does not make the person ‘insane’.
Insanity contemplated under Section 84 is such unsoundness of mind that
renders the person incapable of knowing the nature of the act or that what he is
doing is wrong or contrary to law. The court added that anger or hatred, though
blurs rational thinking, cannot be equated with insanity as every human being is
expected to control his emotions and remain in senses. 277

(ii) Test of Mental Insanity under Section 84

The important questions that arise regarding insanity are: how is it to be

detected and what should be the demarcating line between ‘sanity’ and
‘insanity’ in order to extend to a man the protection of law from criminal
prosecution? A number of tests278 have been given from time to time for this
purpose and the kind and degree of insanity available as a defence against a
crime. But the most notable of all is the ‘right and wrong test’ formulated in Mc
Naughten’s case.279 In this case the law relating to insanity is to be found in the
form of replies given by the 15 judges of the House of Lords to the five
questions put to them with a view to clarifying the law on this subject. Over
time those questions and particularly the answers to the second and third
questions assumed great significance in as much as they find place in the Penal
Code of almost all countries in the world influenced by common law.

277
MANU/DE/1652/2009.
278
See R. C. Nigam, Law of Crimes in India, (1965), p. 364. Some of the tests to identify
insanity are ‘wild beast test’; ‘counting twenty pence test’; ‘good and evil test’ and so
on.
279
(1843) 10 Clark & Finnelly 200-214 (H.L.); Revised Reports, Vol. 59 8 E. R 718. The
accused, Daniel Mc Naughten, was charged for the murder of Edward Drummond, Secretary
to then Prime Minister, Sir Robert Peel, on January 20,1843. The accused was suffering from
an insane delusion that Sir Robert Peel had injured him and that he mistook Drummond for
Sir Robert. Accordingly, he shot and killed him. The accused pleaded not guilty on the
ground of insanity. The defence led evidence of accused’s insanity, particularly his obsession
with the given morbid delusion. The jury returned a verdict of ‘not guilty’ on the ground of
insanity.

142
These questions were:

Question II. - What are the proper questions to be submitted to the jury
when a person afflicted with insane delusions respecting one or more
particular subject or person, is charged with the commission of a crime
(murder, for instance), and insanity is set up as a defence;
Question III - In what terms ought the question to be left to the jury as to
the prisoner’s state of mind at the time when the act was committed?

To establish a defence on the ground of insanity, it must be clearly proved that

at the time of. committing the act the accused was labouring under such a defect
of reason due to disease of the mind as not to know the nature and the quality of
the act he was doing, or if he did know it, that he did not know he was doing
what was wrong. Section 84 of the Penal Code has been drafted in the light of
the replies to the second and the third questions, which is generally known as
the Mc Naughten Rules. However, Section 84 uses a more comprehensive term,
‘unsoundness of mind’, instead of ‘insanity’. As stated by Huda, the use of the
word ‘unsoundness of mind’ has the advantage of doing away with the necessity
of defining insanity and of artificially bringing within its scope different
conditions and affliction of the mind which ordinarily do not come within its
meaning, but which nonetheless stand on the same footing in regard to the
exemptions from criminal liability.280

As stated above Section 84 embodies the fundamental maxim of criminal law

actus non facit reum nisi mens sit rea (an act does not constitute guilt unless
done with guilty intention). In order to constitute an offence, the intent and act
must concur; but in the case of insane persons, it is assumed that they do not
280
Shamsul Huda, Principles of Law of Crimes in British India, (India Publisher, Calcutta, 1902)
p. 271.

143
know what they are doing or what is wrong and lack the ‘free will’ and
autonomy which the law pre supposes. There is also little point in punishing
these offenders, as they are unlikely to understand the command of law.281 In
Bapu v. State of Rajasthan282 the accused chopped the head of his wife and held
it in one hand with the blood stained sickle on the other when he was caught.
The defense of insanity was taken up. The accused had at some point of time
taken treatment for insanity. The court deliberated at length on the defense of
insanity and the distinction between legal insanity and medical insanity. The
court rejecting the plea made a very apt observation thus:

The crucial point of time for deciding whether the benefit of this section should
be given or not, is the material time when the offence takes place and in coming
to that conclusion, the relevant circumstances are to be taken into consideration,
it would be dangerous to admit the defense of insanity upon arguments derived
merely from the character of the crime. For the application of the Section 84, it
is essential to show that:

1. the accused was of unsound mind;283

2. he was of unsound mind at the time when he did the act, and not
merely before or after the act (i.e., every person, who is mentally
diseased, is not ipso facto exempted from criminal responsibility;284
and

281
K. N. C. Pillai, General Principles of Criminal Law (2003) at p. 287.
282
(2007) 3 SCC (Cri) 509.
283
Pappathi Ammal, In re AIR 1959 Mad 239(244); 1959 Cri LJ 724.
284
Govardhan v.Union of India (1961) 2 Cr LJ 475 (477) (HP).

144
 3. As a result of unsoundness of mind, he was incapable of knowing the
nature of the act or that he was doing what was either wrong or
contrary to law.285

(iii) Mental Insanity under Section 84 and Mens Rea

Mens rea or guilty mind is one of the essential requirements for fixing criminal
liability. Section 84 exempts criminal liability in cases where the accused at the
time of doing it, by reason of unsoundness of mind, is incapable of knowing the
nature of the act or that what he is doing is either wrong or contrary to law. In
Sudhakaran v. State of Kerala286 the appellant had murdered his wife by cutting
her neck with a chopper in her bedroom. On being charged under Section 302,
Indian Penal Code, he took the defense of insanity under Section 84. The facts
of the case revealed that he had taken care not to harm the eight month old child
who was with his mother and the appellant’s conduct at that relevant time did
not betray any signs of insanity. The apex court agreed with the view of the
High Court that the factual matrix established that the conduct of the appellant
just before and after the incident was sufficient to negate any notion that he was
mentally insane. Hence, the apex court held that the High Court was right in
holding that he was not incapable of forming mens rea for committing the
287
murder of his wife. In Elavarasan v. State the accused took the plea of
insanity. The court held that the mere fact that the appellant had assaulted his
wife, mother and child and had not run away from the place of occurrence was
not ipso facto suggestive of his being an insane person. The burden of proof in

285
Jai Lal v. Delhi Administration AIR 1969 SC 15(17).
286
(2010) 10 SCC 582.
287
(2011) 7 SCC 110.

145
case of general defense is on the defendant but the defendant in the present case,
could not prove so.
288
In Surendra Mishra v. State of Jharkhand the accused-appellant shot the
deceased from point blank range. The accused pleaded insanity. From the
medical record what could be proved was that the accused-appellant had
paranoid feeling but that too was not proximate to the date of occurrence.
Explicating on defense of insanity the court observed thus: An accused who
seeks exoneration from liability of an act under Section 84 of the Penal Code is
to prove legal insanity and not medical insanity. Expression “unsoundness of
mind” has not been defined in the Penal Code and it has mainly been treated as
equivalent to insanity. But the term “insanity” carries different meaning in
different contexts and describes varying degrees of mental disorder. Every
person who is suffering from mental disease is not ipso facto exempted from
criminal liability. The mere fact that the accused is concerned, odd, irascible
and his brain is not quite all right, or that the physical and mental ailments from
which he suffered had rendered his intellect weak and affected his emotions or
indulges in certain unusual acts, or had fits of insanity at short intervals or that
he was subject to epileptic fits and there was abnormal behavior or the behavior
is queer, are not sufficient to attract the application of section 84 of the Penal
Code.

(iv) Applicability of Section 84 and Law of Evidence

(a) Periodic Epilepsy, Schizophrenia and the Like

It is the general principle of criminal law that if the unsoundness of mind,

deposed to is not such as to render the accused incapable of such knowledge, it
is insufficient to exonerate him from criminal responsibility on the ground of

288
(2011) 11 SCC 495.

146
insanity.289 The accused should prove that he was labouring under a disease of
the mind and by reason of it he did not know the nature of the act or that his act
was wrong or illegal.290 The principle of onus of proof is a important factor for
the application of Section 84 Indian Penal Code while Section 84 is one of the
general exceptions envisaged in chapter IV of the Code which, if attracted in a
case, absolves the accused completely of the criminal liability. The justification
for providing unsoundness of mind as a complete defence is that if the accused
at the time of commission of the offence was, because of unsoundness of mind,
incapable of forming a criminal intent he cannot be subjected to punishment as
mere act of the accused which results in a forbidden consequence is not
punishable if unaccompanied by a guilty mind. Absence of guilty mind due to
incapacity to form it is an excuse under criminal law. However, one may hasten
to add that every person is presumed to be sane and possesses a sufficient
degree of reason to be responsible for his act unless the contrary is proved. The
burden of proving the guilt of the accused is on the prosecution which it must
prove to the hilt. But under the Evidence Act, 1872 the onus of proving that any
of the exceptions mentioned in chapter IV is applicable in his case is on the
accused though the requisite standard of proof is not the same as expected from
the prosecution. It is sufficient if the accused is able to bring his case within the
ambit of any of the general exceptions by the standard of preponderance of
probabilities, as a result of which he may succeed in his plea not because that he
proved his case to the hilt but because the version given by him casts a doubt on
the prosecution case. However, mere ipse dixit of the accused is not enough for
availing of the benefit of the exceptions mentioned in Chapter IV Indian Penal
Code.

289
Lachhman v. Rup, AIR 1924 All 413: 25 Cr LJ 683.
290
Kanna Kannummal Ahmed Koya v. State of Kerala, AIR 1966 KLT 613: 1967 Ker 92.

147
In Unniri Kannan v. State,291 the accused who had been suffering from periodic
epilepsy since childhood attacked his defenceless mother with billhook,
wooden reaper and fire wood stick causing her death. The prosecution pleaded
that death had been caused because there were occasional quarrels between the
accused and the deceased over the quality of the food prepared and served by
the mother. There was no attempt to escape nor was there any attempt to
conceal the crime. It was held that complete absence of motive or provocation,
nature and multiplicity of weapons used, duration of the attack and the maniacal
fury of the attack along with the subsequent conduct of the accused proved that
he was acting under an insane impulse. He was give benefit of the Section 84.

In Shrikant Anandrao Bhosale,292 the accused appellant, a police constable,

killed his wife by hitting on her head with a grinding stone when she was
washing clothes. The trial court as well as the High court on appreciation of
evidence convicted him of murder. In the appeal before the Supreme Court the
only aspect that was considered whether the appellant’s plea of the defence of
insanity which had not found favour either with the sessions court or with the
high court could be accepted. The prosecution contended that the appellant
killed his wife not because of insanity but on the account of extreme anger
which is different from insanity. On the other hand, the appellant contended that
he was suffering from insanity at the time of killing his wife and, therefore, he
was entitled to the benefit of general exception contained in the Section 84 IPC.
In support he relied on the evidence of two medical specialists who had
prepared his medical record and had stated therein that he suffered from
suspicious ideas, persecutory delusions, loss of sleep and excitement and was a
paranoid schizophrenic. He was intermittently becoming apprehensive and
excited and his wife used to take him to the medical specialists for treatment.
291
1960 Cr L J 73.
292
Shrikant Anandrao Bhosale v. State of Maharashtra, (2002) 7 SCC 748 (Y. K. Sabharwal
and H. K. Sema JJ).

148
Besides, there was a history of psychiatric illness in the family as his father at
the age of 65 years had run away from the house. The appellant himself was
taken to hospital 25 times in less than six months.

The court after considering the entire evidence on record opined that it was an
admitted fact that the appellant suffered from psychiatric illness and had a
family history as heredity plays a part in the illness. He had been treated since
1992 for mental illness and was diagnosed as suffering from paranoid
schizophrenia and within a short span of time of six months in 1994 had to be
taken for treatment of the ailment 25 times to hospital. The weak motive of
killing of the wife was that she was opposing the idea of the appellant resigning
the job of a police constable and had that he killed his wife in day time and
made no attempt to hide or run away. In the aforesaid circumstances, the court
while allowing the benefit of Section 84 IPC to the appellant held that paranoid
schizophrenia from which the appellant was suffering in a mental disease which
can recur and the sufferer is not fully aware of his activities and their
consequences. Having regard to the nature of burden of the appellant, the court
opined that the appellant had proved the existence of the circumstances as
required under Section 105 of the Evidence Act so as to get the benefit of
Section 84. There was reasonable doubt that at the time of the commission of
the offence, the appellant was incapable of knowing the nature of the act and,
thus, he was entitled to the benefit of Section 84.

A close analysis of the above two decisions will show that the court has granted
benefit of Section 84 in Shrikant Anandrao Bhosale,293because there was expert
medical evidence available in the favour of the accused showing that he had a
history of mental illness of paranoid schizophrenia for which he was regularly
being treated and that the father of the accused had also at some stage suffered

293
Shrikant Anandrao Bhosale v. State of Maharashtra, (2002) 7 SCC 748 (Y. K. Sabharwal
and H. K. Sema JJ).

149
from psychiatric disorder. This heredity factor also weighed heavily with the
court in gathering the accused benefit of section 84. The courts in India have
been even in the past been reluctant to grant benefit under section 84 without
expert medical evidence for reasons that the purpose of criminal law being to
protect the society against misadventure of its members, the defence of an
alleged plea of insane delusion cannot be granted without there being
satisfactory medical expert evidence available.294

(b) Independent Evidence

It has been rightly reiterated that there should be independent evidence to prove
insanity under section 84 IPC. In Bihari Lal v. State of HP,295 the accused tried
to prove that he was suffering from schizophrenia by way of a certificate issued
by an independent practitioner. The court rejected the defence. Similarly in
Sadashivu Balappa Samagar v. State of Karnataka,296 the abnormal behavior of
the accused in having attempted to cut the pennies of his 5 year old nephew and
sending his wife to the parents, the Karnataka High Court ruled that at the most
the acts of the accused indicate his sexual deficiency and mental imbalance
which need to be treated but does not reduce the culpability of the accused. He
was not entitled to take the defence of insanity under section 84 Indian Penal
Code.
297
In Chandra Bhan v. State, the accused after causing injuries with sharp-
edged weapon to his wife dragged her to a pit nearby. On children raising alarm
he ran away from the place of occurrence. In his statement before the court
under section 313 the accused pleaded that he was staying in a temple and

294
Lakshmi v. State, AIR 1963 All 534.
295
2006 Cri L J 3832 (HP).
296
2006 Cri LJ 899 (Kar) (DB).
297
2005 Cri LJ 35 (All).

150
receiving medical treatment. In her dying declaration the wife had stated that
her husband behaved like a mad person. This was not considered as enough
evidence of unsoundness of mind. His plea was rejected. Conviction under
section 302 and life imprisonment sentence were upheld. In Venketesh v. State,
298
the accused way laid the victim sprinkled chilli powder on his face and eyes
and inflicted injuries on the head region. The mere fact that three years back he
had suffered from schizophrenia was not enough to entitle him, to a defense of
insanity under section 84. Conviction under section 307 was upheld. The plea of
insanity was also rejected in Kandey Hembrom v. State,299 in which the accused
was alleged to have knifed to death three innocent girls in different incidents.
The trial court got the accused examined by a medical board that had declared
him fit. The High Court held that merely because the murders were committed
without any motive it did not mean the accused deserved insanity defence.

(c) Circumstantial Evidence

In a large number of cases on insanity the court relied on the circumstances

evidence. Thus, in Ashiruddin v. The King,300 the Calcuta High Court allowed
the defence of insanity under Section 84 IPC on the ground that the accused had
sacrificed his son of five years while acting under the delusion of a dream,
believing it to be right. The accused had dreamt that he was commanded by
someone in paradise to sacrifice his son of five years. The next morning the
accused took his son to a mosque and killed him by thrusting a knife in his
throat. He then went straight to his uncle but, finding a chaukidar (watch man)
nearby, took his uncle to a tank some distance away and slowly related the
story. On these facts, it was held by a Bench of the Calcutta High Court that the
298
2005 Cri LJ 1112 (Karn).
299
2005 Cri LJ 1562 (Jhar).
300
AIR 1949 Cal 182.

151
case of insanity under section 84 IPC, was made out. It was held in this case that
to enable an accused to obtain the benefit of section 84 he should be able to
establish any one of the following three elements, viz.,
(1) that the nature of the act was not known to the accused, or
(2) that the act was not known by him to be contrary to law, or
(3) that the act was not known by him to be wrong.

On the above facts, the Bench held that the third element was established by the
accused, namely, that the accused did not know that the act was wrong. This
was obvious on the ground that the accused was labouring under a belief that his
dream was a reality. The Allahabad High Court on the other hand, in Laxmi v.
State,301 expressed its disagreement with the Calcutta view and observed that it
will be open to an accused in every case to plead that he had dreamt a dream
enjoining him to do a criminal act, and believing that his dream was a command
by a higher authority, he was impelled to do the criminal act, and therefore, he
would be protected by section 84. The court further held that if cognition and
reason are found to be still alive and vibrant, it will not avail a man to say that at
the crucial moment he had been befogged by an overhanging cloud of intuition
which cast deep dark shadows over his mental faculties, ‘Legal insanity’ is not
the same thing as ‘medical insanity’ and a case that falls within the latter
category need not necessarily fall within the former. Further the case where a
murderer is struck with an insane delusion is different from the case of a man
suffering from organic insanity (insanity affecting an organ of the body).

301
AIR 1953 All 534. The accused has been found guilty of having murdered his step-brother,
Cheddilal. His conduct prior to the incident as well as at the time of the incident does not
support the contention mat he was insane at the time when the offence was committed. His
conduct subsequent to the incident also does not lend support to this contention. The conduct
and history of the appellant in the court of inquiry as well as in the trial court also militates
against the contention that the appellant was liable to recurring fits of insanity at short
intervals.

152
In State of Madhya Pradesh v. Ahmadulla,302 one day in the dead of the night
the accused went carrying a torch to his mother-in-law’s house and managed to
enter her room by stealth. Finding her asleep he killed her by severing her head
with a knife. He then put the head and knife in a cloth bag and hid it in an
underground cell and hid the torch in a cash box. The accused pleaded
unsoundness of mind in his defence and in support of the plea two doctors and
the father of the accused were examined. The civil surgeon deposed that he had
examined the accused two years ago and found that he had an epileptic type of
insanity at that time. The other doctor deposed that he found the accused two
months after the incident suffering from epileptic insanity. The father stated that
he had observed the accused to be in a disturbed mental state for two days and
that in the morning after the crime, he found him unconscious with his hands
and feet stiffened (a symptom found in epilepsy).

The Apex Court held to establish insanity it must be clearly proved that at the
time of committing the act the accused was labouring under such a defect of
reason, as not to know the physical nature and quality of the act he was doing,
or that although he knew its quality and nature, he did not know that what he
was doing was wrong or contrary to law. The burden of proof that the mental
condition of the accused at the crucial point of time, when the offence was
committed, was of such a degree as is described in section 84 IPC, lies on the
person who claims the benefit of this exception.303

Applying the above principles to the facts and circumstances of the case, the
Supreme Court observed that there was no basis in evidence for finding that at
the crucial time when the accused killed his mother-in-law, he was incapable
from unsoundness of mind of knowing that what he was doing was wrong. The
302
AIR 1961 SC 990: (1961) 3 SCR 583.
303
Vide section 105, Evidence Act, 1872 and illustration (a) thereto.

153
plea of insanity under an epileptic fit can succeed only, if it is established, that
at the very time when the murder was committed the accused was under an
epileptic seizure which rendered him incapable of knowing the nature of his act.
It is not enough to show that some months before or after the incident the
accused was found to be suffering from epileptic insanity. Moreover, the
circumstances in which the murder was committed (in the dead of night, with
access to the house of the deceased being obtained by scaling a wall, and the
foresight to carry a torch) showed that the crime was committed not in a sudden
fit of (epilepsy) insanity, but rather was preceded by careful planning, exhibited
cool calculation in execution of plan, and was directed against a person
considered an enemy by the accused.

In Dayabhai Chhaganbhai Thakkar,304 the Supreme Court held that in

determining whether the accused has established that his case comes within the
purview of Section 84, the Court has to consider the circumstances which
preceded, attended and followed the crime. The relevant facts are the motive for
the crime, the previous history as to the mental condition of the accused, the
state of his mind at the time of the offence, and the events immediately after the
incident, which throw a light on the state of his mind. The accused was
convicted under section 302 IPC, for murder of his wife. One night while the
two were sleeping in their room as usual, the neighbours were awakened or
hearing her cries that she was being killed. They found the door of the room
bolted from inside and called upon the accused to open it. When he opened the
room, they found his wife dead with as many as 44 knife injuries on her body.
At the trial the plea of insanity was rejected in view of the fact that in the
statement made to the police immediately after the incident, there was no
indication whatsoever that they had found his conduct on emerging from the
room to be that of a person who had lost his sanity. The Sessions Judge
304
Dayabhai Chaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563.

154
accordingly convicted the accused and on appeal the High Court confirmed the
conviction.

Rejecting the defence of insanity and dismissing the appeal, Supreme Court
held the evidence on record was not sufficient even to throw a reasonable doubt
that the act might have been committed when the accused was under a fit of
insanity. The Court said it is that only that unsoundness of mind which
materially impairs the cognitive (reasoning) faculty of the mind can constitute a
ground for exemption from criminal liability. The nature and the extent of the
unsoundness of mind required must reach the stage that would make the
offender incapable of knowing the nature of his act or that what he is doing is
either wrong or contrary to law. The Court explained these two different
conditions of mind with the help of following illustrations.

1. A person strikes another believing in consequence of a delusion,

that he striking a bird. He does not know the nature of his act;
2. A person kills a child under an insane delusion that he is saving
him from sin and sending him to paradise. Here he is incapable
of knowing, by reason of his, insanity, that he is doing what is
morally wrong although he is aware of the nature of the act.

In Ratan Lal v. State of Madhya Pradesh305 the appellant on January 22,1965,

set fire to the grass lying in the Khalihayan (open land) of Nemichand at the
time of the setting of the sun. He was caught on the spot while setting the fire.
On being asked why he had done it, the accused replied; ‘I burnt it and do
whatever you want.’ According to the psychiatric he was a lunatic in terms of
the Indian Lunacy Act, 1912. The report said the accused ‘(1) remains

305
AIR 1971 SC 778: (1970) 3 SCC 553.

155
depressed, (2) does not talk, (3) he is a case of manic depression and psychosis
and (4) needs treatment’. The trial magistrate held that the accused was not
liable, to punishment under Section 435 of the Penal Code (mischief by fire
with intent to cause damage) as he was insane at the time of the commission of
the offence and did not know that he was doing anything wrong or contrary to
law. The High Court, on appeal filed by the State, reversed the trial magistrate’s
finding and held the accused liable for the offence charged. The Supreme Court
allowed the appeal, set aside the conviction, and held that the behaviour of the
appellant on the day of occurrence, and the medical evidence indicated that the
appellant was insane within the meaning of Section 84, IPC.

In Seralli Wali Mohammad v. State of Maharashtra,306 the accused was

charged and committed under Section 302, IPC for having caused the death of
his wife and a female child with a chopper. Rejecting the plea of insanity the
Supreme Court observed that the law presumes every person of the age of
discretion to be sane unless the contrary is proved. It would be most dangerous
to admit the defence of insanity upon arguments derived merely from the
character of the crime. The mere fact that no motive was proved as to why the
accused murdered his wife and child, nor the fact that he made no attempt to run
away when the door was broken open, could not indicate that he was insane or
that he did not have the necessary mens rea for the commission of the offence.

Similarly, it was held in Chhagan v. State,307 that it would be most dangerous

to admit a defence of insanity upon arguments merely derived from the
character of the crime. A somewhat queer behaviour on the part of the accused
preceding the commission of the crime did not establish that he could be called

306
AIR 1972 SC 2443: (1973) 4 SCC 79.
307
1976 CrLJ 671.

156
non compos mentis. Legal insanity is established only if it is known that the
cognitive faculties of the person are such that he does not know what he has
done or what will follow his act. Thus, in Balagopal (in re:),308 the accused,
who was living very amicably with his wife and behaved in a friendly manner
towards her, murdered her and his son by stabbing them with a knife. No motive
could be suggested. The medical opinion was definite about the accused not
being in a position to understand the nature of the act. It was held that the plea
of insanity could well be substantiated by the statement of the doctor.

In Phulabai Sadhu Shinde v. State of Maharashtra,309 the Bombay High Court

went even further to grant the plea of insanity to the accused, who was suffering
from chronic and incurable illness. The accused in an attempt to commit suicide
jumped into a well along with her child resulting in the latter’s death. The plea
of insanity was advanced though medical evidence was absent in the case. The
court granted the benefit of the plea of unsoundness of mind on the basis that
the absence of medical evidence did not justify exclusion of common sense.
Likewise, the Supreme Court in Ram Lal v. State of Rajasthan,310 held that to
take protection of Section 84, IPC the person must be non compos mentis at the
time of commission of the crime. The law presumes every person of the age of
discretion to be sane unless the contrary is proved; and even if a lunatic has
lucid intervals the law presumes the offence to have been committed in a lucid
interval unless it appears to have been committed during derangement. The
appellant lacked motive in killing an eight-year-old boy and the Doctor’s report
showed that he was a case of epilepsy with retarded mental faculties such as to
place him in the category of severe subnormality. There was no evidence that at

308
1976 Cr LJ 1978 (1981-82) (Mad).
309
1976 Cr LJ 1519 (Bom).
310
(1977) Cr LJ (NOC) 168 (Raj); Benar Singh Tanti v. State, 1977 Cr LJ 296 (Gau).

157
the time of murder the accused was acting in a state of hallucination, or under
the influence of epileptic insanity. On the contrary, his running away to his
village after the occurrence showed that he was conscious of the fact, which was
enough to demolish the plea of insanity. In Amrit Bhushan v. Union of India,311
the Supreme Court said that insanity as an exception to criminal liability must
rest on the fact that the accused was incapable of understanding the nature and
consequences of his act at the time of commission of the offence. If it were not
possible to do so, the responsibility could not be absolved.

(d) Medical Evidence

In T.N. Lakshmaiah,312 the main thrust of the submission of the accused before
the Supreme Court was that at the time of committing the offence of murder of
his wife and son he was insane and, therefore, the sentence of life imprisonment
passed by the trial court and upheld by the High Court warranted to be set aside.
It was submitted that the evidence of the accused at or about the time of
occurrence, his having remained a patient of mental illness and the record
produced during the trial probabilised his being insane within the meaning of
section 84 Indian Penal Code which entitled him to acquittal. In order to
appreciate the merits of the contention it may be useful to give backdrop of the
relevant facts.

The appellant, a government servant, applied for leave from his office and took
his wife and son for a short holiday to a nearby place which was about three to
four hours drive from his place of residence. On the pretext of showing a
waterfall he took them to a secluded place and pushed down his son on to a rock

311
AIR 1977 SC 608: (1977) 1 SCC 180.
312
T. N. Lakshmaiah v. State of Karnataka, (2002) 1 SCC 219 (M. B. Shah and R . P. Sethi
JJ.).

158
which was about 150 feet below. He then dragged his wife to a rock, and killed
her by tightening the knot of her saree around her neck. Thereafter he returned
to his house for the night and the next day morning went to the police station
and made a statement confessing his crime. Consequently, a case of murder was
registered against him. As per his disclosure, the dead body of the wife was
recovered from the place pointed out by him. His son who was still alive when
found, was seriously injured and later succumbed to his injuries in the hospital.
To allay all apprehensions, the Supreme Court directed the prison authorities to
forward the medical report, if any, concerning him for facilitating the court to
ascertain his mental condition. The medical report issued by the psychiatrist of
the prison hospital stated that the appellant was suffering from “moderate
depression”. After medication he had shown improvement and at the time of
submission of the medical report his mental condition was satisfactory.

The court held that the appellant had not led any evidence in proof of the plea of
insanity. There was nothing on record to infer that the accused was of unsound
mind at or about the time of commission of offence. His conduct and behaviour
both at the time and subsequent thereto clearly showed that he knew and had the
potentiality to know the nature of the act done by him. It seems that he had
become annoyed with the attitude of his wife and appeared to have taken a
conscious decision of taking his wife and son away from the house to commit
the offence at the scheduled place. His mental faculty was intact as he reached
home safely and slept for the night. The plea of insanity as defence he may have
decided to take when his statement under section 313 Cr PC was recorded.
There was no record to show that he was suffering from some mental illness or
was taking treatment for the same when he is stated to have applied for bail. The
opinion of the doctor summoned by the court also did not include any history of
mental disorder. The ‘moderate depression’ stated in the report must have been
due to his confinement in prison for long years on the charge of murder. The

159
court, therefore, held that the appellant was sane and understood the
implications of his act and was not suffering from unsoundness of mind within
the meaning of section 84 IPC, at the relevant time.

In State v. Emerciano Lemos,313 Z and accused X were brothers, and Y was a

neighbour and a distant relative. On the day of the incident when Z and his wife
were away, X started throwing stones at Z house when Z’s children got
frightened and came out of the house, they were also attacked. When Y came
out he was also attacked with a stick and his wife after being beaten died five
days later. The other persons who assembled there subsequently and the police
which reached there later were also attacked. The doctors pronounced in the
court that the accused was suffering from schizophrenia. The Section 84 was
held to be applicable. The report of medical examination by the doctors
unequivocally indicates that the accused was of unsound mind at the time when
he committed the offences. The courts are satisfied that the report submitted by
the authorities and the Annexure there to is a correct report. The report is
therefore taken on record and the court can safely place reliance on it. On the
basis of this report, it is very clear that the accused was of unsound mind at the
time when the offences were committed.314

It emerges from the above discussion that in order to constitute an offence, the
intent and act must concur, but in the case of insane persons, no culpability is
fastened on them as they have no free will (furlosis nulla volunta est). If a
person, by reason of unsoundness of mind is incapable of knowing the nature of
the act or that he is doing wrong or contrary to law, he cannot be guilty of any
criminal intent. Such a person lacks the requisite mens rea and is entitled to an

313
AIR 1970 Goa 1.
314
Chandrashekar v. State of Karnataka 1998 Cri LJ 2237 at 2238 (Karn) (DB).

160
acquittal.315 He is best punished by his own madness.316 A person is legally
insane when he is incapable of knowing:

1. the nature of the act, i. e., the physical act which is done, or
2. that he is doing wrong; or
3. that he is doing what is contrary to law. The first one refers to the
offender’s consciousness to the bearing of his act on those who are
affected by it; and the second and third to his consciousness of its
relation to himself.317
The Section 84 governs only those cases in which the cognitive faculties of the
accused are completely impaired,318 and not those case, in which insanity affects
only the emotions and will, subjecting the offender to impulses and living the
cognitive faculties unimpaired.319 Thus, the legal test of responsibility has been
distinguished from the medical test, by which the criminality of an act is
determined.320 In the absence of any evidence of the accused’s state of mind at
the actual time of the commission of the act in question, the presumption of
sanity remains unweakened by any evidence of earlier insanity. 321 There is no
rule that once insane always insane or that now insane the accused must have
been insane before.322 Past conduct cannot lead to any inference that the accused
is incapable of understanding the nature of his act at the time when the act in

315
Jai Lal v. Delhi Administration AIR 1969 SC 15(17).
316
Digendra Nath Roy v. State 1970 Cr LJ 529(531).
317
Shivraj Singh v. State of M.P. 1975 MPLJ 98.
318
Kalicharan v. Emperor AIR 1948 Nag 20(2)(23).
319
Queen Empress v. Kedar Nasyer Shah ILR 23 Cal 604(608).
320
Kanbi Kurji Duba v. State AIR 1960 Guj 1(2); 1960 Cr LJ1200.
321
State of Kerala v. Madhavan Pillai AIR 1958 Ker 80(81): 1958 Cr LJ 513.
322
Kandasami Mudali, In re, AIR 1960 Mad 316 :1960 Cr LJ 930.

161
question was committed.323 Similarly, the fact, that the accused was in sound
state of mind in medical examination held about a month after the occurrence or
at the time of trial, does not mean that the accused must have been of sound
mind at the time of occurrence. Proof of prior subsequent insanity does not
attract Section 84.324 The mere fact that on former occasions, he had been
occasionally subject to insane delusion or had suffered from derangement of
mind and subsequently he had behaved like a mentally deficient person is not
par se sufficient to bring his case within the exemption.

III. Specific Procedure for Persons with Mental Insanity under Code of Criminal
Procedure

Sections 328-339 (Chapter 25) of the Code of Criminal Procedure, 1973 (Cr. P.
C.) provide provisions for accused persons of unsound mind, while Section 84
of the Indian Penal Code, 1860 deals with an accused who is the a lunatic at the
time of the commission of the offence. Thus, the Cr. P. C. incorporates certain
special provisions with regard to the procedure that is to be followed in cases
where unsoundness of mind is pleaded. The reason for this is because the
Legislature was conscious of the fact that whereas a person who is of unsound
mind cannot be convicted or detained in prison by virtue of the mental
disability, that the law takes into account certain other aspects of the matter, the
most important of which is that the individual has already exhibited certain
dangerous traits such as the tendency to turn violent or to attack other persons
and in view of this position , the law does not permit the Court to set such
persons at liberty. The procedure that would have to be followed, therefore, is
that even if the accused cannot be detained any longer in prison that he will
have to be admitted to the Mental Hospital and the provisions of Section 335 of
the Cr. P. C. will have to be followed. In the following pages an attempt will be

323
Chandgi v. Emperor AIR 1932 Lah 260: 33 Cr LJ 634(2).
324
Govindaswamy, In re, AIR 1965 Mad 283: (1965) 2 Ker LJ 44.

162
made to examine in detail the legislative scheme of the Cr. P. C. relating to
accused persons of unsound mind in respect to inquiry or trial and other relevant
issues comparing the scope and ambit of the similar provisions contained in the
Code of Civil Procedure, 1908 as well as the Limitation Act, 1963.

(A) Legislative Scheme (Sections 328-339, Cr. P. C.)

Under Sections 328-339 of the Cr. P. C. the authorities will keep the accused
suffering from unsoundness of mind under observation and treatment and will
have to decide as to whether or not he qualifies for being retained in that
institution, then such a course of action shall be followed. On the other hand if
after observation or at some future point of time a stage is reached when the
doctors are of the view that the accused is perfectly safe both to himself and to
the society, in that event, it shall be open to them to release the accused. Thus, if
an accused is a lunatic at the time of inquiry or trial and therefore incapable of
making his defence, the Magistrate325 in the former case, and the Magistrate or
the Court of Session326 in the latter, shall ascertain on evidence if the accused is
a lunatic. If he is so found, then the Magistrate or the Court, even if the case is
non bailable, may release him on an assurance being given that he will be cared
for. If such assurance is not forth coming, or if he cannot be enlarged on bail, he
is detained in safe custody.327 The Magistrate or Court may resume inquiry or
328
trial against the accused at any time. If the accused is still insane, he can
again be dealt with under Section 330. 329 If, however, the accused appears to
be of sound mind at the inquiry or trial, but was a lunatic when he committed
325
Code of Criminal Procedure, 1973, Section 328.
326
Ibid., Section 329.
327
Ibid., Section 330.
328
Ibid., Section 331.
329
Ibid., Section 332.

163
the offence, the inquiry or trial must be completed. 330 If he is found to have
committed the offence, a finding is recorded accordingly, but the accused is
acquitted. 331

In that event he is detained in safe custody and his case is reported to the State
Government. 332 This provision (Section 335) is a safety clause, which provides
that some relative or friend of the person must satisfy the Magistrate or the
Court that the person delivered will be properly taken care of and prevented
from doing injury to himself or to any other person and that he will be produced
for inspection by such officer at such time and place as the Court may direct. If
there is application for his release under these circumstances and provided the
hospital authorities are of the view that the same is in order, and then the
procedure may be followed.333 The State Government possesses power to
discharge any accused suffering from insanity in appropriate cases. 334 Wherever
a person detained under Section 330 is found to be capable of making his
335
defence, he is tried as provided in Section 332. A person detained under
Section 330 or Section 335 may, when there is no danger of his doing inquiry to
himself or to others, be either discharged336 or he may be made over to the care
of a relation or friend. 337

330
Ibid., Section 333.
331
Ibid., Section 334.
332
Ibid., Section 335.
333
Chandrashekar v. State of Karnataka 1998 Cri LJ 2237 (Karn).
334
Code of Criminal Procedure, 1973, Section 336.
335
Ibid., Section 337.
336
Ibid., Section 338.
337
Ibid., Section 339.

164
Thus, Sections 328-339 of the Cr. P. C. provide detail procedures which may be
discussed further in the following three sub-headings: (i) Procedure in case of
inquiry, (ii) Procedure in case of trial, (iii) Procedure for Release.

(B) Procedure of Inquiry, Trial and Release in case of Accused being

Lunatic (Sections 328-330)
(i) Inquiry Procedure

According to Section 328 of the Cr. P. C. when a magistrate holding an enquiry

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 enquire into the fact of such unsoundness of mind, and shall
cause such person to be examined by the Civil Surgeon of the district, of 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. Pending such examination and inquiry, the Magistrate
may deal with such person in accordance with the provisions of section 330 of
the code. If such Magistrate is of opinion that the person referred to in sub-
section (1) is of unsound mind and consequently incapable of making his
defence, he shall record a finding to that effect and shall postpone further
proceedings in the case.338

A Magistrate has to proceed under Section 328 of the Cr. P. C. where the
accused by reason of unsoundness of mind is incapable of making his defence
in inquiry against him, the Magistrate under this Section is not concerned with
the condition of the mind of the accused at the time of commission of the
offence.339 He must not proceed under this section because the plea of insanity

338
Code of Criminal Procedure, 1973, Section 328.
339
State of Mysore v. Seetharam (1964)1 Cr LJ 410(412); Kunjunarayanan v. State of Kerala
1971 MLJ (Cr) 547.

165
or unsoundness of mind is taken by the accused in defence. A mere examination
of the accused by the Civil Surgeon or the Medical Officer and the certificate of
unsoundness of mind is not sufficient, the Civil Surgeon or the Medical Officer
who has conducted the medical examination must be examined as witness in the
case.340 Where the Magistrate examines a house surgeon not empowered by the
State Government, it was held that the order was not sustainable.341

An accused should be given opportunity to rebut the evidence of the Civil

Surgeon or of the Medical Officer as the case may be.342 If the accused adduces
any evidence, the prosecution should be allowed opportunity to rebut the
same.343 If the Magistrate finds that the accused is of unsound mind incapable of
making his defence, he shall postpone further proceedings in the case, he should
not hold inquiry. Pending inquiry as to the unsoundness of the mind of the
accused the Magistrate or Court may release him on sufficient security as to his
care and for his appearance before the Court when required. The provisions of
this section will apply if the Magistrate has reason to believe that the accused is
-(i) of unsound mind; and (ii) incapable of making his defence. The provisions
of this section are mandatory, but if there is nothing to indicate that the
Magistrate had reason to believe that the accused was of unsound mind or that
the accused was incapable of making his defence, there would be no
344
contravention of this section. But the Magistrate must consider on the
material on record whether he could have reason to believe that the person

340
Trav-Co. State v. Modhavan AIR 1955 Trav-Co. 32; 1955 Cr LJ 328(329), Narain Shanker
Kunsh v. Emperor AIR 1933 Sind 267; 35 Cr LJ 200(201).
341
Narain Shanker Kunsh v. Emperor AIR 1933 Sind 267.
342
Onkar Dat Nigam v. Emperor AIR 1933 Oudh 362: 34 Cr LJ 914(916).
343
Emperor v. Sherdil Sher Baj, AIR 1938 Pesh 24(25): 39 CrLJ 737.
344
State of Mysore v. Seetharam AIR 1964 Mys 50: 1964 Mad LJ (Cr) 133.

166
being proceeded against is of unsound mind.345 Though the Magistrate sent the
accused for medical observations and though a medical report was received
stating that the accused was suffering from Schizophrenia, he without
examining the doctor committed the accused for trial by the Court of Session.
The committal order was quashed.346 The Magistrate sent the accused for
medical observation and without waiting for the medical report and without
examining the doctor concerned, committed the accused for trial based on his
personal, observation alone. The committal order was quashed.347

(ii) Trial Procedure

According to Section 329 of the Cr. P. C. if at the trial of any person before a
Magistrate or Court of Session, it appears to the Magistrate or Court that such
person is of unsound mind and consequently incapable of making his defence,
the Magistrate or Court shall, in the first instance, try the fact of such
unsoundness and incapacity, and if the Magistrate or Court, after considering
such medical and other evidence as may be produced before him, or if, is
satisfied of the fact, he or it shall record a finding to that effect and shall
postpone further proceedings in the case. The trial of the fact of the
unsoundness of mind and incapacity of the accused shall be deemed to be, part
of his trial before the Magistrate or Court.348

Thus, Section 329 of the Cr. P. C. lays down the procedure to be followed when
an accused standing trial before a Court of Session or Magistrate by reason of
unsoundness of mind or insanity is incapable of making his defence. The court
345
Jai Shanker (Dr.) v. State of H.P. (1972) 2 SCWR 580.
346
Ramkrishnan, In re 1979 LW (Cr) 33.
347
State v. Baby 1981 Ker LT 27.
348
Code of Criminal Procedure, 1973, Section 329.

167
must try such fact of insanity or unsoundness as preliminary issue. The
provisions of this section do not embrace an idle formality but are calculated to
ensure to an accused person and the non-observance of those provisions must be
held to convert a trial into a farce. Courts must, therefore, guard against dealing
with the matter of suspected insanity of an accused person in a perfunctory
manner as such a course is bound to result in the trial Judge, more often than not
coming to an incorrect contusion about the insanity of the accused before
him.349 It is, however, not in every case where a mere allegation is made or a
question as to the unsoundness of mind is raised that the Sessions Judge or
Magistrate should try the issue. To the Sessions Judge or Magistrate it must
appear from the behaviour of the accused or other material before him whether
in the charge-sheet or police papers or otherwise that the accused is of unsound
mind and consequently incapable of making his defence.350 A Court of Session
or Magistrate has to proceed under Section 329 of the Cr. P. C. when the
unsoundness and the incapacity of the accused is doubted at the time of trial
before it and not at the time when the offence was committed.351

If the Judge finds reason to doubt the sanity of the accused, the proper thing will
be to keep him under observation for two or three weeks in the Government
Hospital and then to take evidence with regard to his insanity before deciding
whether or not the trial for the offence should be commenced.352 Failure to
follow the procedure laid down in Section 465 of the Cr. P. C. would vitiate the
trial.353 If only one of the two or more accused is of unsound mind and

349
(Mst.) Satya Devi v. State AIR 1969 Punj 387: (1969) Punj LR 581.
350
Ganesh Sharavan Choudhary v. State, 1969 Bom LR 643.
351
Jagdeo v Emperor, AIR 1917 All 328 (329).
352
State v. Kocban Chellayyan AIR 1954 TC 435(438).
353
Radha Nath Mandal v. Emperor AIR 1927 Cal 289(290).

168
incapable of understanding his defence, it is not necessary to postpone the entire
trial. The trial should proceed against the other accused.354 If there is reason to
believe that the accused is of unsound mind even during the hearing of appeal,
the provisions of Section 329 of the Code would apply and the hearing of the
appeal should be stayed and the question of unsoundness of mind be decided
first.355 The burden of proving that the accused is of sound mind lies on the
prosecution.356 When the accused recovers, he is liable to be tried and the trial is
bound to be proceeded with.357

Thus, when an accused is found to be of unsound mind the court should not
only put questions to him, but should try to know the fact of insanity by
examining him by the Civil Surgeon or some other medical officer. It was held
in Gurjit singh v. State of Punjab358, that the plea of insanity must first be
determined by recording the medical evidence. The trial of an offence without
determining the insanity of the accused is violative of the mandatory provisions
of Section 329, Criminal Procedure Code. Where the trial judge without
recording the medical evidence and without recording any finding one way or
the other regarding the mental condition of the accused framed the charge and
commenced the trial, the trial was held to be vitiated being violative of
provisions of Section 329.

354
Narayanrao Madhavrao v. State, 70 Bom LR 425.
355
Kunjunarayanan Sivaraman v. State, 1972 Ker LT 121.
356
Emperor v. Gopi Mohan Saha AIR 1925 Cal 479.
357
State v. Dalwai AIR 1970 Bom 396.
358
1986 Cr LJ 1505 (P and H).

169
In Sankaran v. State359, the Sessions Court did not notice any symptom of
unsoundness of mind during trial as well as well as at the time of questioning
under Section 313. Thus in view of the Sessions Judge the accused appeared to
be normal but in view of strange answers given by him in connection with
certain incriminating circumstances alleged against him the Sessions Judge
referred the accused for examination by a Psychiatrist who issued a fitness
certificate. On considering this certificate the sessions judge came to the
conclusion that the accused did not suffer from any unsoundness of mind. It was
held that there was substantial cvompliance of the provisions of Section 329. It
was further held that the plea of unsoundness of mind was raised for 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 the
mind. Therefore, the conviction of the accused under Section 302, Indian Penal
Code was upheld as he has not discharged the burden cast on him to prove his
insanity.

In State of Maharashtra v. Sindh,360 the Supreme Court has held that the word
‘trial’ in Section 329 includes reference under sub- section (1) of Section 366.
In this case the accused who was a person of unsound mind was sentenced to
death by the Sessions Judge and the sentence was referred to the High Court for
confirmation. The question was whether Section 329 shall apply to the accused
when the sentence has been passed by the Sessions Judge but sent for
confirmation to the High Court. It was held that the trial of the accused, a
person of unsound mind, sentenced to death does not conclude with the
termination of the proceedings in the Court of Sessions because a trial cannot be
deemed to have concluded till an executable sentence is passed by the
competent Court. In this case the sentence passed by the Sessions Judge shall be
359
1994 Cr LJ 1173 (Kerala).
360
AIR 1975 SC 1665.

170
executable only when it is confirmed by the High Court. Therefore, this section
applies and proceedings can be postponed.

(iii) Release Procedure

According to Section 330 of the Cr. P. C. whenever, a person is found, under

Section 328 or Section 329 of the Code, to be of unsound mind and incapable of
making his defence, the Magistrate or Court, as the case may be, whether the
case is one in which bail may be taken or not, may release him on sufficient
security being given that he shall be properly taken care of and shall be
prevented from doing injury to himself or to any other person, and for his
appearance when required before the Magistrate or Court or such officer as the
Magistrate or Court appoints in this behalf. If the case is one in which, in the
opinion of the Magistrate or Court, bail should not be taken, or if sufficient
security is not given the Magistrate or Court, as the case may be, shall order the
accused to be detained in safe custody in such place and manner as he or it may
think fit, and shall report the action taken to the State Government, provided
that no order for the detention of the accused in a lunatic asylum shall be made
otherwise than in accordance with such rules as the State Government may have
under the Indian Lunacy Act 1912 (4 of 1912).361

When the Magistrate or the Court proceeds to try the question of the
unsoundness of the mind of the accused, the Magistrate or the Court as the case
may be, whether the offence is bailable or non-bailable, release the accused
after taking sufficient security as to his safe custody and appearance before the
Magistrate or the Court or such officer as the Magistrate or the Court appoints
in this behalf. Where the Magistrate or the Court is of opinion that the case is
such that bail should not be taken or if sufficient security is not given, the
361
Code of Criminal Procedure 1973, Section 330.

171
Magistrate or the Court as the case may be, shall order the accused to be
detained in safe custody in such place and manner as he or it may think fit, and
shall report the action taken to the State Government.

During the inquiry, the father of the accused was prepared to execute a bond for
the accused being released to his safe custody with sufficient sureties. In this
view of the matter, the High Court set aside the detention of the accused in the
Institute of Mental Health as ordered by the trial court and instead ordered to be
released on the father of the accused executing a bond for a sum of Rs. 2,000
with two sureties each for a like sum to the satisfaction of the trial Court
Magistrate that the accused shall be properly taken care of and shall be
prevented from doing injury to himself or to any other person and for his
appearance whenever required before the aforesaid Magistrate. The order was to
be effective only during the pendency of the inquiry to determine the
unsoundness and incapacity of the accused. Once the inquiry was over and the
accused was found to be of unsound mind, a separate order was to be made by
the Magistrate regarding his safe custody according to law. In case the
examination of the mental condition of the accused was over in the Institute of
Mental Health, the Magistrate, in order to give effect to the order of the High
Court, was directed to send a requisition to the Superintendent of the said
Institute requiring the production of the accused along with the report of
examination.362

(C) Resumption of Inquiry or Trial (Section 331)

Section 331 of the Cr. P. C provides for the resumption of inquiry or trial of
persons of unsound mind. According to Section 331 whenever an inquiry or a

362
Gouthaman v. State, (1994)1 CCR 75.

172
trial is postponed under Section 328 or Section 329 of the Code, the Magistrate
or Court, as the case may be, may at any time, after the person concerned has
ceased to be of unsound mind, resume the inquiry or trial, and require the
accused to appear or be brought before such Magistrate or Court. When the
accused has been released under Section 330 and the sureties for his appearance
produce him to the officer whom the Magistrate or Court appoints in this behalf,
the certificate of such officer that the accused is capable of making his defence
shall be receivable in evidence.363

(D) Procedure during Appearance in Court (Sections 332-333)

(i) Capability Examination (Section 332)

According to Section 332 of the Cr. P. C., if, when the accused appears or is
again brought before the Magistrate or Court, as the case may be, the Magistrate
or the Court considers him capable of making his defence, the inquiry or trial
shall proceed. If the Magistrate or Court considers the accused to be still
incapable of making his defence, the Magistrate or the Court shall again act
according to the provisions of Section 328 or 329 of the Cr. P. C, as the case
may be, and if the accused is found to be of unsound mind and consequently
incapable of making his defence, shall deal with such accused in accordance
with the provisions of Section 330 of the Cr. P. C.364 When the Court resumes
inquiry and proceeds further with the case, it is desirable that it should record
finding to the effect that the accused is now of sound mind capable of making
defence along with the grounds upon which it comes to such findings.365 But in

363
Code of Criminal Procedure 1973, Section 331.
364
Code of Criminal Procedure 1973, Section 332.
365
Ibrahim v. Emperor AIR 1934 Lah 123: 35 Cr LJ 869.

173
the under mentioned case,366 it has been held that under sub-section (1) there is
no injunction upon the Court or the Magistrate to take evidence upon the
capacity of the accused to make his defence. When the Magistrate or the Court
resumes inquiry or trial under Section 332 of the Cr. P. C. the inquiry or trial
should proceed de novo and to be resumed at the point at which it was
previously stopped.367

(ii) In case the Accused is Sound Mind (Section 333)

According to Section 333 of the Cr. P. C, when the accused appears to be of

sound mind at the time of inquiry or trial, and the Magistrate is satisfied from
the evidence given before him that there is reason to believe that the accused
committed an act, which, if he had been of sound mind, would have been an
offence, and that he was, at the time when the act was committed, by reason of
unsoundness of mind, incapable of knowing the nature of the act or that it was
wrong or contrary to law, the Magistrate shall proceed with the case, and, if the-
accused ought to be tried by the Court of Session, commit him for trial before
the Court of Session.368 It is not incumbent upon the committing Magistrate to
order a medical inquiry upon a defence of insanity if he is of opinion that the
accused is sane at the time of trial, then he must proceed under Section 333 of
the Cr. P. C. and commit the accused for trial.369

(E) Judgment of Acquittal (Section 334)

366
Emperor v. Ahmad AIR 1935 Pat 501(502).
367
Acting Government Pleader v. Kannukan Chetty, 2 Weir 582.
368
Code of Criminal Procedure 1973, Section 333.
369
Emperor v. Bahadur AIR 1928 Lah 796; 29 Cr LJ 204 (206-207).

174
According to Section 334 of the Cr. P. C., whenever any person is acquitted
upon the ground that, at the time at which he is alleged to have committed an
offence, he was, by reason of unsoundness of mind, incapable of knowing the
nature of the act alleged as constituting the offence, or that it was wrong or
contrary to law, the finding shall state specifically whether he committed the act
or not.370 The plea of unsoundness of mind is open to the accused under Section
84 of the Indian Penal Code. Where the accused is found of unsoundness of
mind at the time of the commission of the alleged offence, he is to be Acquitted
and not discharged.371 What Section 334 of the Cr. P. C requires is that
whenever an accused is acquitted on that ground, the court must record a
specific finding whether he committed the act charged against him or not.372

(F) Provision of Acquittal with Safe Custody (Section 335)

Section 335 of the Cr. P. C lays down when an accused is acquitted on plea of
insanity or unsoundness of mind, the Court or the Magistrate, as the case may
be, order for the detention of the accused in a safe custody in such place and
manner as it thinks fit. The Magistrate or the Court, as the case may be, shall
report to the State Government the action taken by him. The provision as to the
safe custody of the accused is mandatory, whether the accused is acquitted by
trial court or in appeal.373 The Section 335 reads thus:

1. Whenever the finding states that the accused person committed the act
alleged, the Magistrate or Court before whom or which the trial has

370
Code of Criminal Procedure 1973, Section 334.
371
Emperor v. Katay Kisan, 1 Cr LJ 854 (863).
372
Mohammad v. Emperor AIR 1922 Mad 54: 23 Cr LJ 71.
373
Provincial Government v. Kishan AIR 1945 Nag 77: 46 Cr LJ 745(746).

175
 been held, shall, if such act would, but for the incapacity found, have
constituted an offence—
(a) order such person to be detained in safe custody in such place and
manner as the Magistrate or Court thinks fit; or
(b) order such person to be delivered to any relative or friend of such
person.
2. No order for the detention of the accused in a lunatic asylum shall be
made under Clause (a) of sub-section (1) otherwise than in
accordance with such rules as the State Government may have made
under the Indian Lunacy Act 1912 (4 of 1912).
3. No order for the delivery of the accused to a relative or friend shall be
made under Clause (b) of sub-section (1) except upon the application
of such relative or friend and on his giving security to the satisfaction
of the Magistrate or Court that the person delivered shall—
(a) be properly taken care of and prevented from doing injury to
himself or to any other person;
(b) be produced for the inspection of such officer, and at such
times and places, as the State Government may direct.
4. The Magistrate or Court shall report to the State Government the
action taken under sub-section (1).374

(G) Appointment of Officer-in Charge, Fit Lunatic be Released and

Procedure of Delivery (Sections 336-339)

The State Government may empower the officer in charge of the jail in which a
person is confined under the provisions of Section 330 or Section 335 of the
Code to discharge all or any of the functions of the Inspector General of Prisons

374
Code of Criminal Procedure 1973, Section 335.

176
under Section 337 or Section 338 of the Code.375 If such person is detained
under the provisions of sub-section (2), of Section 330 of the Code, and in the
case of a person detained in a jail, the Inspector General of Prisons, or, in the
case of a person detained in a lunatic asylum, the visitors of such asylum or any
two of them shall certify that in his or their opinion, such person is capable of
making his defence, he shall be taken, before the Magistrate or Court, as the
case may be, at such time as the Magistrate or Court appoints, and the
Magistrate or Court shall deal with such person under the provisions of Section
332 of the Code; and the certificate of such Inspector General or visitors as
aforesaid shall be receivable as evidence.376 If such person is detained under the
provisions of sub-section (2) of Section 330, or Section 335, and such Inspector-
General or visitors shall certify that, in his or their judgment, he may be released
without danger or his doing injury to himself or to any other person, the State
Government may thereupon order him 40 be released, or to be detained in
custody, or to be transferred to a public lunatic asylum, if he has not been
already sent to such an asylum; and, in case it orders him to be transferred to an
asylum, may appoint a Commission, consisting of a judicial and two Medical
Officers. Such Commission shall make formal inquiry into the state of mind of
such person, take such evidence as is necessary, and shall report to the State
Government, which may order his release or detention as it thinks fit.377

Whenever any relative or friend of any person detained under the provisions of
Section 330 or 335, Cr PC, desires that he shall be delivered to his care and
custody, the State Government may, upon the application of such relative or
friend and on his giving security to the satisfaction of such State Government,

375
Ibid., Section 336.
376
Ibid., Section 337.
377
Ibid., Section 338.

177
that the person delivered shall-(a) be properly taken care of and prevented
from doing injury to himself or to any other person; (b) be produced for the
inspection of such officer, and at such times and places, as the State
Government may direct; (c) in the case of a person detained under sub-section
(2) of Section 330, be produced when required before such Magistrate or Court,
order such person to be delivered to such relative or friend.

If the person so delivered is accused of any offence, the trial of which has been
postponed by reason of his being of unsound mind and incapable of making his
defence, and the inspecting officer referred to in Clause (b) of sub-section (1),
certifies at any time to the Magistrate or Court that such person is capable of
making his defence, such Magistrate or Court shall call upon the relative or
friend or whom such accused was delivered to produce him before the
Magistrate or Court; and, upon such production, the Magistrate or Court shall
proceed in accordance with the provisions of Section 332, Cr PC, and the
certificate of the inspecting officer shall be receivable as evidence.378

For the purpose of legal insanity the degree of proof required is also greater than
that required for proving medical insanity. A court will look for some clear and
distinct proof of mental delusion or intellectual aberration existing immediately
before, or at the time of, or immediately after, the perpetration of the offence.
Medical men recognize that there may be delusion or aberration springing up in
the mind suddenly, and not revealed by the previous conduct or conversation of
the accused. Thus the criteria employed by the medical men to detect insanity
are different from those employed by the courts.

378
Ibid., Section 339.

178
Medical men infer insanity also from the absence of certain factors such as
motive, attempt at concealment or escape, and accomplice. The fact that the
person was conscious of the criminality of the act is immaterial for establishing
medical insanity. The legal criteria for the existence of insanity are the act of the
person and his consciousness of its criminality. To a lawyer insanity is ‘conduct
of a certain character’ whereas to a physician it means ‘a certain disease, one of
the effects of which is to produce such a conduct’.379 To men of medicine and
psychiatry the motivation for an act is of primary importance whereas to men of
law motive is not decisive in determining insanity.

(G) Law of Limitation, 1963 and Legal Disability

Section 6 the Limitation Act, 1963 provides for the law relating to legal disability
applicable for extending the period of limitation. Sections 7, 8 and 9 also deal with
the circumstances under which and the extent to which limitation will be extended.
Section 7 applies in case of disability of one of several persons while Section 8
provides for special exceptions. Section 9 states that once time has began to run, no
subsequent disability to institute a suit stops it. Therefore, these four Sections are
supplementary to each other and together constitute a unit and are not mutually
exclusive.

(i) Legal Disability: Section 6

According to Section 6 of the Limitation Act, a minor, insane or an idiot may

institute a suit or make an application within the same period after the disability has
ceased.380Persons under disability are not subject to the ordinary rule of limitation
because the law considers them incapable of forming a proper judgment as to bring
379
Emperor v. Katay Kisan, (1924) 1 Cr LJ 854 at p.856 (Central Provinces).

380
Utha Moidu Haji v. Kuningarath Kunhabdulla, 2006 (14) SCALE 156.

179
suits or otherwise manage their own affairs. Section 6 does not prevent the running
of limitation but only extends the period of limitation.381 The extension is given
upon the ground of disability of the person entitled to sue or apply. But this Section
does not contain the entire law on the subject. It enumerates the kinds of disabilities
on account of which limitation will be extended. Section 6 excuses an insane
person, minor and idiot to file a suit or make an application for the execution of a
decree within the time prescribed by law and enables him to file the suit or make an
application after the disability has ceased, counting the period of time from the date
on which the disability ceased. Besides, at the time of in computing the period of
limitation, the disability period should be excluded. In P. Sainath Reddy v. G.
Narayana Reddy,382the Court observed:

Under Section 6 of the Limitation Act, where a person is under

disability, being a minor or insane, or an idiot, the time during which
the person is under disability has to be excluded in computing the
period of limitation prescribed for filing a suit or application for
execution of a decree.

However, as held in Harikumar Radhakisan v. Uderam Ramkuwar,383 that once the

limitation time has begun to run, no subsequent disability or inability to institute a
suit or make an application stops it. If one disability supervenes another disability or
one disability is followed by another without a gap, the suit or application for
execution may be filed after both the disabilities have ceased to exist. If the
disability or disabilities continues till the person’s death, then the representative of
the deceased on whom the title devolves is allowed to file a suit or make an

381
Ponnamma v. Padmanabhan, AIR 1969 Ker 163.
382
AIR 1982 AP 247: 1982 (1) AnWR 328.
383
Harikumar Radhakisan v. Uderam Ramkuwar, AIR 1970 Bom 262.

180
application for execution within the time allowed by the law continuing it from the
death of the person entitled. However, in Ranodip Singh v. Parmeshwar
Pershad,384 it was held that extension of 3 years given under Section 6 of Limitation
Act is not available for non-existent (unborn) sons, and held that, the suit is barred
by limitation. Therefore, Section 6 outlines a general rule.

In Smt. Usha Rani Banerjee v. Premier Insurance Company Ltd.,385the Allahabad

High Court held that Section 6 lays down a general rule that the time for filing a
suit shall not run against a disabled person who may be a minor, an insane or an
idiot. Such a person may bring action in the Court of law once his disability ceases
to exist. Limitation for filing the suit shall commence from the date of cessation of
the disability. In Damu v. Ambadas,386 the Bombay High Court observed:

“The provisions of Section 6(1) of the Limitation Act 1963 would

make it amply clear that minor may institute a suit within the period
allotted in Third Column of the Schedule, after the disability period is
over. The suit can be filed by the minor within period of 3 years after
attaining majority. The legal disability does not give afresh period from
starting point of limitation, though it gives right to file the suit within
period of 3 years, after removal of the disability.”

Section 4 of the Limitation Act is wide enough to include a period of time contained
in the First Schedule of the Limitation Act but computed with the aid of one or more
of the Sections 12 to 16 and starting from the date of attaining majority under
Section 6 of the Act. Section 4 provides an exception to the general rule laid down

384
AIR 1925 PC 33. See also Chandrakant v. Shrinivasrao, 2005 (3) MhLj 82.
385
AIR 1983 All 27.
386
2008 (6) Bom CR 257.

181
in Section 3. The question is whether Section 4 of the Limitation Act can be utilised
after obtaining an extension through the provisions of Section 6 of the Limitation
Act. In Mari Naganna v. Peruri Krishnamurthi,387 the High Court of Madras
answered in the affirmative and Cornish, J. observed:

“Section 6 enables a person who was a minor at the time from which
the period of limitation is to be reckoned, to institute a suit within the
same period after he attains majority as would otherwise have been
allowed from the time prescribed therefore in the Third Column of the
First Schedule. This concession is cut down by Section 8 which says
that nothing in Section 6 shall be deemed to extend for more than three
years from the cessation of the disability, the period within which any
suit must be instituted. The illustrations to Section 8 make it quite clear
that what is meant is that when time has begun to run against a person
during his minority, in no case, is the period in which he can institute a
suit to be extended for more than three years after the cessation of the
disability. In other words, by the operation of Sections 6 and 8, the
prescribed period within which an ex-minor can institute a suit is
limited to three years from the date when he reached majority. If the
three years so prescribed expire on a day when the Court is closed, the
position seems to me to be precisely within the terms of Section 4.”

Section 6 applies to only those suits (other than pre-emption suits) and applications
for the execution of decrees for which the period of limitation is mentioned in the
Third Column of the Schedule. It does not apply to appeals. Therefore, a minor or
an insane appellant cannot take advantage of this Section in case of appeals. The
conditions for the application of Section 6 are:

387
AIR 1932 Mad 139.

182
1. The person entitled to sue or apply for execution of decree must be under a
disability. Such disability is confined only to minority, insanity and idiocy.388
2. The disability must be of the person entitled to sue or apply for execution. The
plaintiff not under any disability himself is not entitled to the benefit of the
Section merely because the defendant is under a disability. This Section only
applies to suits etc., brought by and not against the persons under disability.389
3. The disability must exist at the time from which the period of limitation is to
be reckoned. Therefore, a disability which supervenes after the commencement
of limitation is no ground for extension of limitation under this Section.
4. The proceedings in question must be a suit or an application for the execution
of a decree.
5. The period of limitation for the proceeding must be specified in the Third
Column of the Schedule. Thus, in Jagat Singh v. Gurminder Singh,390 the
Court held that an undivided share in a joint holding is not capable of physical
possession and hence a suit to pre-empt the sale of such a share will be
governed by the Second Part of the Third Column of the Schedule.

(ii) Disability of one of the Several Persons: Sections 7

Section 6 of the Limitation Act declares the general rule as to disability while
Section 7 applies that rule to the case of a right arising in favour of several persons,
some of whom are under disability. Section 7 depends for its application upon the
consideration whether the right claimed was a joint right at its inception. The
underlying principle of Section 7 is that if there are certain persons in existence who

388
Harikumar Radhakisan v. Uderam Ramkuwar, AIR 1970 Bom 262.
389
Utha Moidu Haji v. Kuningarath Kunhabdulla, 2006 (14) SCALE 156.
390
(1972) ILR 2 Punj. & Hary. 240.

183
are adults and who could have safeguarded the common interests of themselves and
others similarly instituted, the failure of such persons, who are sui juris to litigate
for a right, will give rise to the cause of action not only against themselves to
litigate the right, but also against other persons in similar circumstances391. In
Shampuri v. Ramchandra,392 the Nagpur Judicial Commissioner's Court observed
that Section 7 of the Limitation Act contemplates two cases:

1. Where there are several persons jointly entitled to institute a suit, but one
of such persons is under a disability, limitation will run against all
provided a discharge can be given without the concurrence of such person
; and
2. Where no such discharge can be given, time will not run as against any
of them:
(i) until one of them becomes capable of giving such discharge without
the concurrence of the others; or
(ii) until the disability has ceased.

Therefore, Section 7 of the Limitation Act provides an exception to the general

principle embodied in Section 6. In Narayan Ramachandra Katkar v. Arjun
Bhimrao Gorge,393the Bombay High Court held that Section 7 would apply only to
a case where one of the several persons jointly entitled to institute a suit is under
any such disability and a discharge cannot be given without the concurrence of such
person. Each of the sons who is a coparcener in a joint family is entitled to question
alienations made by the father, has an independent right of his own. It is not a joint
right of all the sons which cannot be enforced unless all of them join so that the

391
Varamma v. Gopaladasya, AIR 1919 Mad. 911.
392
AIR 1924 Nag 385.
393
AIR 1985 Bom 122.

184
minority of one son could enlarge the period of limitation. This Section, along with
Section 6, is confined to suits and applications for execution of decrees by persons
under disability. It does not apply to appeals. This Section does not apply to
enforcement of rights of pre-emption since pre-emption suits have been specifically
exempted from the purview of Section 7.394

(iii) Special Exception: Sections 8

Section 8 of the Limitation Act provides certain exceptions to the rules contained in
Sections 6 and 7. Section 8 comprising two parts as additional or supplementary
provisions provides the persons suffering from a disability liberty to make a fresh
start from the date of the cessation of their disability. The first part of Section 8 lays
down that suits for pre-emption are not governed by Sections 6 and 7 of the Act,
and they must be proceeded with despite the disability and that no extension of time
will be granted on account of the disability of the plaintiff. The second part
provides that a person under disability may sue after the cessation of the disability
within same period as he would otherwise have been allowed under the Schedule
but in no case can the period be extended to anything beyond 3 years from the
cessation of the disability. The law provides that the prescribed period of limitation
computed from cessation of the disability provided that if such period exceeds 3
years, he will not be entitled to the full period but only 3 years from the date of the
cessation of the disability. However, if the ordinary period of limitation computed
from the original accrual of the cause of action expires more than three years after
the cessation of the disability, such period will be allowed.

394
A. K. Basu v. Krishan Kurup, AIR 1954 Trav. Cochin 237.

185
In Smt. Devkoo v. Smt. Rama Dogra,395 the Himachal Pradesh High Court held that
the limitation for filing a suit for possession on basis of a title is 12 years. However,
in case of disability, limitation is extended by three years, from when such disability
ceases. Doubt has arisen with regard to the question whether a minor is entitled to
period of twelve (12) years from the date on which he or she attains the age of
majority, if the cause of action to sue arises during minority? In Smt. Hukmi v. Smt.
Gian Kaur,396the Apex Court clarified that be the cause of action cannot prolonged
beyond the original period of 12 years. Thus, a minor may either continue the suit
filed by his predecessor or may abandon the same. However, his right to sue would
be available only within the period of 3 years, on attaining majority. Where a
person is entitled to institute a suit, the limitation begins to run for a minor or an
insane, or an idiot for institution of the suit within the same period allowed
otherwise after the disability has ceased as a whole from the time specified
thereafter in third column of the Schedule i. e. 3 years from the date of cessation of
disability.

(iv) Continuous Running of Time: Section 9

According to Section 9 of the Limitation Act, once time has begun to run, no
subsequent disability or inability to sue can stop it. Therefore, in a case on the date
on which the cause of action arose, the plaintiff was under no disability or inability,
time will naturally begin to run against him since there is no reason why the
ordinary law should not have full operation. Section 9 contemplates a case of
subsequent and not of initial disability, that is, it contemplates cases where the
disability occurred after the accrual of the cause of action (in computation to a case
of initial disability that has been provided under Section 6). The right to sue accrues
only when a cause of action arises, and limitation runs only after a cause of action

395
1993 (1) ShimLC 68.
396
AIR 1971 SC 782: (1971) 3 SCC 782.

186
has arisen.397 Time begins to run when the cause of action accrues, and the cause of
action accrues only when: (1) there is in existence of a person who can sue and
another who can be sued, and (2) all the facts which are material to be proved have
occurred to entitle the plaintiff to succeed.398

In Maheshwari Builder v. Dr. Mohd. Shafiuddin Junaidi,399time had begun to run

since the right to sue had accrued and the plaintiff was not in any way disabled from
suing. Therefore, the Andhra Pradesh High Court held that where time has begun to
run with respect to the right to sue having accrued to a person not labouring under
any legal disability; the subsequent disability of himself or any other representative
will not be a ground for exemption from the operation of the ordinary rule, and it
cannot be suspended for any reasons other than those specified in the Act. The
Limitation Act does not affect a claim for which there is no corresponding remedy
or for which judgement cannot be obtained. Consequently, the true test to determine
when a cause of action has arisen is to ascertain the time when the plaintiff could
have maintained his action for a successful result. In Srimati Sarat Kamini Dasi v.
Nagendra Nath Pal,400 the Calcutta High Court observed:

“The principle that limitation does not arise as the rights, suspended for
a time may be revived and enforced when the bar is removed seems to
have been adopted in the cases of Laloo Karikar v. Jagat Chandra
Saha401 and Janaki Nath Sinha Roy v. Bejoy Chand Mahatab402. In the

397
Shyam haran Tiwari v. Kanhaiyalal, AIR 1967 Raj 176.
398
State of West Bengal v. Satyanarayan Rice Mill, AIR 1985 Cal 391.
399
2008 (5) ALD 806: 2008 (6) ALT 575.
400
AIR 1926 Cal 65: 89 Ind. Cas. 1000.
401
62 Ind. Cas. 428: 33 C. L. J. 256 .
402
64 Ind. Cas. 315: 33 C. L. J. 366.

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 case of Dina Nath Saha Roy v. Jadu Nath Biswas,403 a deduction of
time during which a previous litigation was pending was allowed but it
is not very clear whether on any general principle or by reason of the
fact that the plaintiffs were in the position of persons whose claim had
been satisfied.”

There are well-recognized exceptions to the above-mentioned rule of Section 9 and

one exception is provided by the proviso to the Section itself which lays down that
where letters of administration to the estate of a creditor have been granted to the
debtor, the running of the time prescribed for a suit to recover the debt shall be
suspended while the administration continues.404 The principle behind this proviso
is that the position of a debtor and creditor in such a case becomes intermixed for
the time being, and therefore, limitation does get suspended.405Therefore, the
principle laid down in the Section 9 is subject to certain exceptions. Where time has
begun to run, it can be stopped, provided the cause of action which has given the
right to sue is discharged or disappears in any way. In Midnapore Zemindary Co.
Ltd. v. Naba Kumar Singh Dudhoria406 the Calcutta High Court held that the period
of limitation can be extended to three classes of cases, viz., (a) where injustice has
been caused through an act of Court, (b) where the cause of action was satisfied,
and (c) where the cause of action was cancelled.

IV. Execution of Persons with Mental Insanity

403
86 Ind. Cas. 130: A. I. R. (1925) (C.) 456.
404
Krishna Gupta v. D. D. Sadhotra, 2008 (1) JKJ 30.
405
Shyamharan Tiwari v. Kanhaiyalal, AIR 1967 Raj 176.
406
AIR 1950 Cal 298: (1951) ILR 1 Cal 391.

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An important issue, in the form of the case of Amrit Bhusan Gupta v. Union of
India,407 as to whether an insane person could be executed in compliance of an
order of the court, came up before the Supreme Court. The appellant was
convicted and sentenced to death by the lower court for the murders of three
innocent sleeping children by burning them alive. He was also sentenced to
seven years’ rigorous imprisonment for attempting to murder the intervener
petitioner, the father of the three deceased children almost a year after the
children’s murders. The death sentence was confirmed by the High Court.
Certain relatives of the appellant raised an unsuccessful plea of Insanity in the
High Court after the pronouncement of the judgement by the High Court but
this was not even entertained. A Division Bench of the High Court dismissed a
petition against execution on the ground of Insanity with the remarks that
invocation of its power under Article 226 of the Constitution was not justified
and the court was certain that if the petitioner was really insane, appropriate
authorities would take necessary action. The Supreme Court granted special
leave to appeal. The following additional facts were mentioned by the
intervener petitioners which were not controverter. The writ petition and
another writ petition were dismissed in July, 1971 and August, 1975
respectively. The Supreme Court had dismissed various petitions of the
petitioner in April, 1970, September, 1970, April, 1971 and January 1976. In
between another petition filed in May, 1971 was withdrawn by the appellant
petitioner in August, 1976. The President of India has also rejected his mercy
petitions in August, 1970, December, 1970, November, 1971, and February,
1972. The dates of his execution were first fixed in December, 1970, again in
August, 1975 and yet again in December, 1975. The intervener alleged that the
appellant petitioner and his relatives had been delaying his execution on one
pretext or another and they alone were solely responsible for passing of so long
a time since the death penalty was first imposed in 1969. While dismissing the
407
AIR 1977 SC 608.

189
prayer of the appellant petitioner, the Supreme Court ordered for his execution
holding that the sentence of death passed on him and confirmed subsequently
could not be interfered with either by the High Court acting under Article 226 or
the Supreme Court under Article136 of the Constitution and that such convicted
person could be executed even if he had become insane. It was clarified by the
Supreme Court that the courts in India have no power to prohibit the carrying
out of a sentence of death legally passed on the ground that either there is some
rule in the English common law against the execution of an insane person
sentenced to death or some theological, religious or moral objection to it. Indian
statute law on the subject is based entirely on secular considerations which
place the protection and welfare of society in the forefront. What the statute law
does not prohibit or enjoin could not be enforced by means of a writ of
mandamus under Article 226 so as to set at naught a duly passed sentence of a
court.

It is important to note that a senior psychiatrist who examined the appellant

petitioner under orders of the court observed that he was a person of unsound
mind suffering from schizophrenia which is basically an incurable type of
insanity characterised by remissions and relapses at varying intervals. The other
psychiatrist, also acting under court orders, too was of the view that the
appellant petitioner was suffering from chronic schizophrenia and was,
therefore, of unsound mind under the Indian Lunacy Act, 1912. The Supreme
Court, while rejecting the contention of the appellant petitioner that anyone
becoming insane after his conviction and sentence could not be executed until
he regained sanity, with respect, rather strangely observed that the question
whether on the facts and circumstances of a particular case, a convict, alleged to
have become insane, appears to be so dangerous that he must not be let loose
upon society, lest he commits similar crimes against other innocent persons
when released or because of his antecedents and character, or for some other

190
reasons, he deserves a different treatment, are matter for other authorities to
consider after a court has duly passed its sentence.

V. An Appraisal

The above mentioned procedure reveals that the provision for exemption from
liability under the Section 84 of the Indian Penal Code places a heavy burden on
the defence. The mind of the accused person may be partially deranged or he
may be subject to some uncontrollable impulse. This shall not be sufficient
under law for exemption. The evidence ought to be categorical that at the time
of the commission of the offence the accused was of unsound mind to such an
extent that he was incapable of knowing what he was doing at the time or that
he was incapable of knowing that what he was doing was wrong or contrary to
law.408 Similar provisions are also available in the Code of Civil Procedure,
1908. Rule 15, Order 32 of the Code of Civil Procedure (CPC) states that the
provisions of Order 32 (Rules 1 to 14) also apply to person of unsound mind.
The provisions of CPC are not to be construed as affecting or in any way
derogating from the provisions of any local law for the time being in force
relating to suits by or against lunatics or other persons of unsound mind. The
Supreme Court in Kasturi Bai v. Anguri Chaudhary,409observed:

“On a bare perusal of the said provision, it is evident that the Court is
empowered to appoint a guardian in the event a person is adjudged to
be of unsound mind. It further provided that even if a person is not so
adjudged but is found by court on inquiry to be incapable of
protecting his or her interest when suing or being sued or reason of

408
Pancha v. Emperor, AIR 1932 All 233 at 235.
409
(2003) 3 SCC 225.

191
 any mental infirmity, an appropriate order there under can be
passed.”

In Sharda v. Dharmpal,410 the Supreme Court held that the prime concern is to
find out whether a person said to be mentally ill can defend himself properly.
Determination of such an issue despite having relevance to the determination of
the issue in the lis, the Court cannot be said to be wholly powerless in this
behalf. Furthermore, it is one thing to say that a person would be subjected to
test which would invade his right of privacy and may in some case amount to
battery; but it is another to say that a party may be asked to submit himself to a
psychiatrist or a psychoanalyst so as to enable the Court to arrive at a just
conclusion. Whether the party to the marriage requires treatment can be found
out only in the event he is examined by a qualified psychiatrist and it may not
be necessary to submit himself to any blood test or other pathological tests for
the said purpose.

410
AIR 2003 SC 3450.

192