1.Yes you can do that
2. Yes the application is required
3. Yes
Proving unsoundness of mind in criminal trial
My father was independent director in a company he worked for in the past. SEBI has filed a criminal case in Tis Hazari District Court in Delhi against this company under Companies Act 1956. In Dec 2019 due to wrong address a NBW was issued against my father, we approached the court and the NBW was stayed and magistrate said bail can be granted on the next scheduled date in Mar 2020. But due to Covid the date got postponed to 8 July 2020. Now in in late April 2020 my father got diagnosed with high grade brain cancer (Gioblastoma) - he underwent brain surgery on 27 Apr 2020. Currently he is undergoing radiotherapy and chemotherapy treatment. Since a large part of his left parietal lobe got removed in brain surgery my father has lost his memory (he doesn't remember his or anyone's name or other basic details). He can't walk on his own and we use diapers due to incontinence. He does sometimes understand basic commands like raise your hand etc if they are repeated constantly. It came to my knowledge that Sections 328 to 330 of Criminal Procedure Code state that trial for accused of unsound mind has to be postponed because he can't defend himself. Court typically appoints own psychiatrist for examination of accused to ensure he is incapable of defending himself. My questions are: 1) Would you recommend that before we approach the Magistrate on next date (8 July) we show my father to a psychiatrist and get a certificate that he is of unsound mind? Or should we wait for Magistrate's directions for the same? 2) On next date of hearing (8 July) - would we have to file an application under sec 328 stating that my father is of unsound mind and should be examined by court appointed doctor? 3) Do we need to take my father (on wheelchair) to the court on 8 July or just submitting the medical reports would be sufficient? My father is undergoing radiotherapy treatment that would continue till 11 July 2020- so taking him to court on 8 July would mean that we would have to interrupt his radiotherapy on that day- our doctor (Radiation Oncologist at hospital) says that the radiotherapy treatment shouldn't be interrupted. Is this a valid reason for personal exemption?
Asked 4 years ago in Criminal Law
Religion: Hindu
15 Answers
1. Move application before the Magistrate stating entire factual position supported by available medical papers and doctors opinion on the same. No need to take the accused to court.
2. Request the Court to absolve him of all charges since he has become of an unsound mind and that an unsound mind person cannot be prosecuted.
3. IF the court is not satisfied, THEN request the court to appoint a govt. doctor for evaluation of accused, wherein the govt. doctor's report shall be irrefutable & final for all legal purposes.
4. IF Govt. doctor certifies accused to be permanently mentally unsound, THEN prosecution has to be dropped.
You should visit a psychiatrist and take his report wrt your father. File this in the court. The court will appoint a medical board if the opposite party challenges this fact. You don't have to take him to court. He may go if the court wants but that is not likely.
1) your father should be medically examined and medical certificate enclosed
2) file application on next date for father medical examination
3) make application for exemption from personal appearance on next date
1. Show the medical reports which are presently available with you. Those would be sufficient.
2. Yes.
3. No, your father's physical presence is not required
1. You can get a certificate from a psychiatrist to this effect before hand and file an application under sections 328 & 330 Cr.P.C before the trial court seeking to adjourn the trial proceedings as per the said provisions of law.
You may attach the certificate given by a government hospital psychiatrist to the application filed before the court to substantiate your claim in the application.
2. Yes, you can do it.
3. You do not have to take him to the court on that particular date, you ca file another petition under section 317 Cr.p.c. seeking to condone his absence before court for the reasons you rely upon.
Firstly get medical examination of your father and with that medical certificate, file an application before the relevant magistrate praying for the discharge of the accused i.e. your father on the ground of unsoundness of mind since such persons are immune from prosecution. thereafter the Court may see your fact and documents and analysing the same, either the Court may direct for a re-medical of your father in order to ascertain the truth and corroborate the report submitted by you. You have to make an application seeking exemption from the personal appearance on the next date of the hearing. usually the courts allow the exemption and your fathers personal appearance in such case will not be required.
Hello,
- You must wait for the directions of the Magistrate on the next date. You need to move an application on the next date for directions explaining the current circumstances. The court will order examination of your father by an empanelled doctor and submission of his/her report for determination of your father's mental state.
- Yes, that's right.
- Indeed he can be exempted as you have very serious reasons to keep him absent.
On 8th July,2020 make an exemption application under 317, 328 to 330 of Cr. P. C.1973 on behalf of your father annexing medical treatment certificate before the Magistrate and seek his exemption granted for the day and I am confident Magistrate would grant.
Please approach and appoint an Advocate who could appear and argue effectively befor the Magistrate Court to get application for exemption of your ailing father graciously granted.
Dear Sir,
Since the date is approaching, you are suggested to go for the psychiatrist opinion as well and present the same to the magistrate on next date of hearing. You are also suggested to annex the documents/medical prescriptions along with the application filed by you. You may not take the father to the courtroom but you may take the medical documents to prove your version of the case/statement.
Let the court pass order for medical check up. More reliable and only govt. hospital medical report will rely by court. Private treatment documents shall be corroborative.
File application in court on next date. Submit medical report along with application to dispense with personal attendance of accused. Court may grant excemption.
Application will file u/s 328 CrPC. Procedure will follow and once medical report will come, after that court will take decision appropriately.
The medical documents is enough to prove his illness .
1. As per law, the magistrate can call a report from the expert for the conditions of your father , even you will show to a psychiatrist and submitted the same before the court.
- However, as his disease is of very serious in nature, hence you should submit a copy of all the medical reports before the court , specially the surgery report etc.
2. Yes , you can move the application under section 328 for discharge your father from the said offence.
3. Not mandatory to appear under such condition .
- You should move an application for exemption from personal appearance on behalf of your father after submitting the report of radiotherapy . The court is bound to exempt him from personal appearance on this sufficient grounds.
- Further , if the court refuse to discharge /acquit your father , then you can approach the High court for quashing the complaint/FIR lodged against him .
Submit medical reports .
You can file an application on next hearing for medical examination.
In Vivian Rodrics v. State of West Bengal [(1970) 1 SCC (Crl.) 33], the Supreme Court observed that if a doubt arises in the mind of the court that there is something in the demeanour of the accused which would suggest that he is of unsound mind and consequently incapable of making his defence, it is obligatory on the court to try the fact on such unsoundness of mind and incapacity of the accused. In Jai Shanker's case (supra) relied on by this Court in Baby's case (supra), it was observed:
"It is clear from the mandatory language of the section that the first thing that the Magistrate has to do is to decide, when an accused person is brought before him who is suspected or alleged to be a person of unsound mind before he proceeds with the inquiry, whether such person appears to him to be of unsound mind. The words "reason to believe" indicate that when an accused person is presented before a Magistrate for enquiry, who it is alleged, is suffering from unsoundness of mind, the Magistrate has, on such materials, as are brought before him to inquire before he proceeds with the inquiry whether there are reasons to believe that the accused before him is suffering from any such infirmity. The next step is that if he has such reasons to believe, be is to institute an inquiry into the fact of unsoundness of mind and cause him to be examined by the civil surgeon or such other medical officer as the State Government directs. Therefore when a question is raised as to the unsoundness of mind of an accused person, the Magistrate is bound to inquire before he proceeds with the inquiry before him whether the accused is or is not incapacitated by the unsoundness of mind from making his defence. Such a proviso clearly is in consonance with the principles of fair administration of justice"
1. You should appear on next date with your advocate along with records of your father's medical conditions.
2. The application will be made under section 329 CrPC because the case is under trail before court and not pending for judicial inquiry.
3. No need to take your father on next date, you need to take your father only if magistrate give direction for appearance of your father in this condition.
