TRIAL OF A PERSON OF A UNSOUND MIND

Submitted by:
ANMOL GOEL 190401417004

B.A LLB (HONS.)

Batch 2019-24

Under the Supervision of

Dr. S Chakravarthy Naik

Alliance School of Law

Alliance University, Bangalore
25/11/2021

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 TABLE OF CONTENT

Index Page no.

Introduction..................................................................................................3

 Competency to stand trial……………………………………….3

 Fitness to stand trial and defence of insanity................................4

Evolution of the concept..............................................................................5

 Concept of competency in different countries..............................5

 Various provisions of fair trial………………………………….6

Indian scenario.............................................................................................7

Relevant case laws........................................................................................10

 Gurjit Singh vs. State of Punjab.......................................................10

 Sankaran vs. State of Kerala............................................................10
 State Of Maharashtra vs. Sindhi Raman........................................12

Conclusion.....................................................................................................14

References......................................................................................................15

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1. INTRODUCTION.
What happens if a person is being prosecuted under any law and is unable to comprehend what is
going on around him? The court then sentences him to ten years in prison. Is it, in your opinion,
making any sense in a civilised society? So, the response is a resounding 'NO.' We're all aware
that it violates the natural fairness principle. To put it another way, if a person cannot defend
himself, he is incompetent to stand trial. In 1951, a man from Silsang, a small village in
Guwahati, was arrested. He was charged with "causing grievous hurt." He was sent to a
psychiatric facility a year after his arrest and stayed there for nearly 26 years. He was declared as
"totally fit" by hospital authorities in 1967, but instead of putting him on trial or releasing him,
he was sent back to prison for another 28 years until he was released. The maximum penalty for
serious bodily harm is seven years in prison, yet he served 54 years in prison. He was not fit for
trial for the first 26 years, but he was never put on trial once he was found fit. The man was none
other than Machang Lalung who was released in 2005 after the intervention of the Hon’ble
Supreme Court. He enjoyed a free life only for 2 years and died in 2007.

Competency to stand trial.

'Fitness to stand trial' or 'competence to stand trial' is a test that is used to determine an
individual's mental skills to defend their case. Thus, a defendant's ability to understand and
rationally participate in legal procedures, as well as to defend himself, is referred to as
competency or fitness to stand trial. Mental illness, mental retardation, and some neurological
diseases can impair an individual's cognitive, emotional, and behavioral faculties, limiting his or
her ability to defend the case. Those accused who are deemed incompetent to stand trial are
normally barred from facing criminal charges, and their trials are postponed until they are
deemed competent. As a result, psychiatrically incompetent defendants are typically sent for
treatment and will continue to be treated until they are competent. It is known as the capacity to
sue and be sued in civil processes, which differs from criminal proceedings. Contractual
capability is linked to the ability to sue and be sued. Persons found to be of unsound mind or
having some mental infirmity who are unable to protect their interests before or during the
pendency of a suit can sue or be sued through their next friend under Order 32 Rule 15 of the
Criminal Procedure Code. So there are two kinds of a fitness of trial one is unfit to stand and

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other is fit to stand, there are also some reasons of incompetence that is malingering, mental
illness, mental retardation, neurological conditions.

Fitness to stand trial and defence of insanity. 

Insanity defense and fitness to stand trial are two separate things. “Nothing constitutes an offence
which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is
incapable of comprehending the nature of the conduct, or that he is doing something which is
either improper or contrary to law,” says Section 84 of the Indian Penal Code. The Magistrate
can proceed with the case if it appears to him that the accused is of sound mind at the time of
enquiry or trial but was of unsound mind at the time of the commission of the offence and was
unable to understand the nature of his actions due to his unsoundness of mind, according to
Section 333 of the Criminal Procedure Code. As a result, the defense of insanity indicates that a
person is of unsound mind when committing a crime that is punishable by law. He is unable to
comprehend the nature and implications of his actions. Fitness to stand trial, on the other hand, is
a later stage in which a person's mental health has deteriorated to the point where he is unaware
of the proceedings against him and is unable to defend himself. There some of the cases where
a defence counsel requests the court to release the accused, he was of unsound mind at the time
of the commission of the offence. This is the defence of insanity which is different from
competence to stand trial. There is example in which a person becomes insane for some period of
time and in that time if that person commits any crime then he can get the defence of insanity.
Insanity Is an Accused Person’s State Of Mind At The Time Of Commission Of Offence.

There is also difference between competency to stand trial and defence of insanity. Fitness to
stand trial is the current Ability of the accused person to understand and participate in trial and it
is prospective assessment of the state of mind whereas insanity is an accused person’s state of
mind at the time of commission of offence and it is retrospective assessment of the state of mind

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2. EVOLUTION OF THE CONCEPT.

The competency to stand trial was first articulated by the Supreme court of the United States as
the assessment of the defendant’s competence to face trial. It was the infamous case of Dusky vs.
United States 1960 in which the court recognised the defendant’s right of competence evaluation
before the trial proceeds. A Federal District Court, acting under the statute (18 USC 4244)
permitting a federal court in which criminal proceedings are pending to make a finding regarding
the mental competency of the accused to stand trial, may not make a determination that an
accused is mentally competent merely because he is oriented to time and place and has some
recollection of events; the test must be whether the accused has sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding and whether he has a
rational as well as a factual understanding of the proceedings against him. So the facts of the
cases are despite the psychiatric testimony showing that defendant was not competent to stand to
trial, defendant was convicted of a crime in a Federal District Court after it found that the
defendant was oriented to time and place and have some recollection of events. On appeal, the
appellate court affirmed the conviction. Defendant’s counsel filed a motion for leave to proceed
in forma pauperis and a petition for a writ of certiorari and issue was that Under the
circumstances, should the court uphold the defendant’s conviction, notwithstanding the assertion
that defendant was not competent to stand to trial? Two standard elements were outlined through
this decision, the defendant must be able to understand the charges against him and he must
possess the ability to aid his attorney in his defence. This means the defendant must
possess rational as well as factual understanding. In Medina vs. California the Supreme Court of
the US stated that it is to be presumed that defendants are competent until the contrary is proven.

Concept of competency in different countries.

In the US, fitness to stand trial is based on the three-prong test of the Dusky Case. They are,
Factual Understanding, Rational Understanding and Ability to consult legal counsel. In Canada,
Individual’s ability is decided by the following factors, Ability to understand the nature and
object of proceeding Ability to understand the consequences of proceedings Ability to
communicate to the counsel. In the Australian legal systems, person is considered to be
competent to stand trial if he or she is able to understand the court processes Understand the
Charges made against him Has the ability to instruct the counsel.

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Various provisions of fair trial.

The right to a fair trial is a fundamental human right, and no one should be sentenced without
first being heard. When the accused is unable to submit information to his attorney, how can we
trust criminal justice? There would be no fair trial if the criminal process was jeopardized. To
ensure a fair trial and to safeguard natural justice principles, a determination of the defendant's
ability to stand trial is made.

There are various provisions under the law that ensure a fair trial. They are:

1. Article 14 of the International Covenant on Civil and Political Rights, recognizes the
right to a fair trial. 

2. The concept of a fair trial recognized under the Constitution in Articles

14, 21, 22 and 39 A.

3. Chapter XXV of the Code of Criminal procedure 1973 contains provisions as to the

accused person of unsound mind (Sections 328, 329 and 330 of CrPC). 
 The Hon’ble Supreme Court in Zaheera Habibullah Sheikh vs. State of Gujarat, 2006 stated that
‘Denial of a fair trial is as much injustice to the accused as is to the victim and the society.’ 

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3. INDIAN SCENARIO.1

The purpose of determining a defendant's fitness to stand trial is to protect the defendant's
autonomy and right to self defence. Though the method of evaluation differs from country to
country, the goal remains the same. Several incidents in India illustrate that a trial is pending due
to the accused's inability to face trial. There is currently no credible factual data available that
can demonstrate the true amount of ongoing cases due to the accused's inability to stand trial.
There are many mechanisms in place to deal with those who have been suspected of being
mentally ill. Under the law, there is a presumption that everyone is capable of entering the trial
and defending himself. If the accused intends to employ competency as a defence, he has the
burden of proof for incompetence. However, different legislation has distinct rules dealing with
the competency of an accused to stand trial. Take a look at the following provisions:

The provisions relating to the investigation before a Magistrate are found in Section 328 of the
Criminal Procedure Code. If the magistrate has grounds to believe that the accused is of unsound
mind, this clause makes it essential for the magistrate to conduct an investigation into the
accused's unsoundness. The Magistrate assigns such an accused to a civil surgeon for
examination, who, if the defendant is found to be of unsound mind, will refer him to a
psychiatrist or clinical psychiatrist for treatment and prognosis. There are two conditions,
according to the psychiatrist's findings: If the accused is declared to be of unsound mind and
found incapable of entering defense, the Magistrate shall examine the evidence and after hearing
the defendant’s advocate without questioning the accused:

o If a prima facie case is made out against the accused, the proceedings
shall be postponed for such period until the accused becomes of sound
mind and to be dealt with in the manner provided under Section 330 of
criminal procedure code. If there is no prima facia case is made out then
the accused shall be given discharge and to be dealt with in the manner
provided under section 330 of CrPC.

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(2021) <https://devgan.in/crpc/chapter_25.php>

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 o If the accused is a person with mental retardation, the Magistrate shall
determine whether the person is capable to defend himself and if not, the
Magistrate shall order the closure of enquiry and deal with the accused in
the manner provided under section 330 of CrPC.

Section 329 of the CrPC has identical requirements to section 328 of the CrPC; the primary
distinction is that section 328 relates to inquiries whereas section 329 applies to trials.

Section 330 of CrPC contains provisions relating to the release of an accused found to be of
unsound mind under section 328 and 329 of CrPC. It says:

 If the offence is of such a nature in which bail may be taken, the Magistrate shall
order the release of the accused on a condition that the unsoundness of mind or
mental retardation of which the accused is suffering does not mandate the inpatient
treatment or a friend or relative undertakes to obtain regular psychiatric treatment
from a nearest medical facility and there shall be proper security that he shall be
properly taken care of and shall be prevented from doing injury to himself or any
other person.

  If the offence is of such a nature that that bail cannot be granted then he shall be kept
at a place of regular psychiatric treatment. Also, the accused shall not be kept in a
mental asylum in contravention to the rules of the Mental Health Act, 1987.

Section 331 of CrPC whenever an accused ceased to be of unsound mind who was declared to be
of unsound mind under section 328 and 329 of CrPC the Magistrate may resume the inquiry or
trial as the case may be.

Section 332 of CrPC the inquiry or trial shall proceed if the Magistrate considers such accused as
capable of defending himself. 

Section 337 of CrPC describes the procedure where a prisoner of unsound mind is reported
capable of making his defence. In the case where the prisoner is in jail, the Inspector General of
Prisons and in cases where the prisoner is in a lunatic asylum, the visitor of such asylum or any

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of them shall certify that the prisoner is capable of making his defence such certificate shall be
received as evidence and the Court/Magistrate will deal with such persons as provided under
Section 332 of CrPC.

Section 338 of CrPC provides the procedure where a person detained under section 330(2) and
section 335 of CrPC, is declared fit by the Inspector General of the prison or visitor of the
asylum to be released.

Section 339 of CrPC provides for the delivery of the person of unsound mind to the care of a
relative or friend with certain conditions if they desire to that such person shall be delivered to
his care and custody.

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4. RELEVANT CASE LAWS.

Gurjit Singh vs. State of Punjab on 7 April, 1986.2

Gurjit Singh alias; Sainti son of Atma Singh, resident of Nabha, appellant was tried and
convicted under Section 302, Penal Code, for committing the murder of Nand Ram at Nabha on
11th of Aug. 1983 at 4 10 p.m. He has been sentenced by the learned Sessions Judge, Patiala to
undergo life imprisonment and pay a fine of Rs. 500/- for this offence. In default of payment of
fine he has been further directed to undergo rigorous imprisonment for one year. The appellant
has contested the order of conviction and sentence through this appeal. During the course of
hearing of this appeal, the question which came to the fore was whether in the face of the plea of
insanity raised by the appellant, the learned trial Court acted in violation of Section 329 of the
Criminal P.C. 1973, hereinafter referred as the Code, by not trying the fact of unsoundness of
mind and incapacity of the appellant to make his defense before the start of the actual trial. As
this is a preliminary question and in case of its determination in favor of non-compliance of the
provisions of Section 329 of the Code, the trial is to vitiate, we need not refer to the evidence, in
the case, on merits. It may, however, be noted that the appellant has led evidence in defense that
he was mentally unsound prior to the commission of the offence and also subsequent thereto. To
properly appreciate the case, the steps taken by the learned trial Judge and the orders made
having a bearing on the plea of insanity and its decision, are to be referred in detail. It was held
that the plea of insanity must first be determined by the medical evidence. The trial of an offence
without determining the insanity violates section 329 of CrPC.

Sankaran vs. State of Kerala on 24 September, 1993.3

This is a case of uxoricide. The appellant-accused was convicted Under Section 302, IPC for
killing his wife and was sentenced to undergo imprisonment for life. The said conviction and
sentence are being challenged, in this appeal.

The prosecution case can be condensed thus: In the night of 15-11-1989, the accused, after
murdering his wife, Thankamani, by strangulation went over to the house of his neighbor,

2
'Gurjit Singh Vs State Of Punjab On 7 April, 1986' (Indiankanoon.org, 2021)
<https://indiankanoon.org/doc/545262/>
3
'Sankaran Vs The State On 24 September, 1993' (Indiankanoon.org, 2021) <https://indiankanoon.org/doc/12175/>

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Sankarankutty with a chopper and laid down in the veranda. He did not go away from there in
spite of the repeated demands made to him. Seeing the strange conduct of the accused,
Sankarankutty went to the house of a close relative, at about 3 a.m. to do something in the
matter. Thereupon came to the house and asked the accused to go away but he did not respond.
Then and others went to the house of the accused and called his wife and son but no one came
out. Thereafter, along with Narayanan, son of Sankarankutty went to the house of Panchayat
President. After hearing the incident, the President telephoned to the Irinjalakuda police station.
Thereupon and Narayanan hired a taxi car and rushed to the police station. The matter was
narrated to the police and thereafter two police constables came to the scene. They found the
accused lying in the veranda of the house. Then they went to the house of the accused and found
the dead body of Thankamani on the up stair room of the house. Head Constable took the
accused into custody and brought to the police station and submitted a report to the Assistant Sub
Inspector. Ext. P1 is the report submitted by and Ext. P6 is the FIR prepared by On the basis of
the report, Crime No. 304/89 was registered. A police constable was deputed to guard the dead
body. Then the investigation was taken over by Circle Inspector of Police. He went to the scene
and held the inquest. Ext. P4 is the inquest report prepared by him. Thereafter the dead body was
sent for post-mortem. Ext.P2 is the post-mortem certificate issued by doctor. After completing
the investigation filed the final report. The Judicial Magistrate of the first Class, Irinjalakuda
committed the case to the Sessions Court. The learned Sessions Judge framed the charge
under Section 302, IPC against the accused. The appellant pleaded not guilty to the charge
framed against him. The prosecution has examined 13 witnesses and thereafter accused was
questioned as required under Section 313 of the Code of Criminal Procedure. Contrary to the
plea raised earlier, the accused explicitly admitted certain incriminating circumstances found
against him. However, he has raised a plea of unsoundness of mind. During the trial as well as at
the time of questioning the learned Sessions Judge found the accused normal in behavior.
However, considering the nature of certain answers given by the accused during the examination
Under Section 313, the learned Sessions Judge referred the accused to the Superintendent,
Mental Health Centre, Trichur for his opinion in so far as the mental state of the accused.
According to the report submitted by the psychiatrist the accused was found to be normal though
he had complained of some memory loss. The report further reveals that at present there is no
evidence of unsoundness of mind. In this case, the plea of unsoundness of mind was raised for

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the first time during the examination under section 313 of Cr. PC. No witness was examined; no
certificate was produced to prove the insanity of mind. Therefore, the conviction under section
302 of IPC was upheld.

State Of Maharashtra vs. Sindhi Raman on 19 February, 19754

The respondent was sentenced to death by the Additional Sessions Judge for double murder. He
did not file any appeal. The trial Judge made a reference to the High Court, for confirmation of
death sentence. Two advocates were appointed Amicus Curiae to defend the respondent. After
interview with the respondent the advocates reported to the High Court that the respondent
appeared to be insane. He was examined by a Medical Board consisting of 3 Psychiatrists.
According to the Medical Board he was not capable of rational thinking or behavior. The High
Court came to, the conclusion that the respondent was clearly of unsound mind. The High Court,
therefore, postponed the proceedings in the confirmation case. On appeal to this Court by State,
it was contended; The provision regarding postponing the proceedings if an accused is found to
be of unsound mind as contained in section 465 of the Criminal Procedure Code is confined to
the trial stage and does not apply to the proceedings before the High Court on reference as the
same are post-trial proceedings, In proceedings on reference under section 334 the accused
has no right of audience before the High Court, The High Court was wrong in delegating its
powers to determine whether the responder, was of unsound mind to the Medical Board. It was
held that, As far as an accused person sentenced to death is concerned, his trial does not
conclude with termination of the proceedings in the Court of Session, since the death sentence
passed by the Court of Session is subject to confirmation by the High Court, the trial
cannot be deemed to have concluded till an executable sentence is passed by a competent court.
The confirmation proceedings are in substance a continuation of the trial. Expression at his trial.
Occurring in section 465 hoes to be liberally construed in a manner which is not repugnant to the
fundamental principles of natural justice. In confirmation proceedings the High Court cannot
arbitrarily refuse to hear the accused either in person or through counsel. It is wrong to state that
the High Court accepted the ipse dixit of the medical experts. These experts gave detailed and
cogent reasons in support of their opinion. The High Court meticulously considered their

4
'State Of Maharashtra Vs Sindhi @ Raman On 19 February, 1975' (Indiankanoon.org, 2021)
<https://indiankanoon.org/doc/1456106/>

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evidence and thereafter recorded its own findings on the crucial issues. The Hon’ble Supreme
Court held that the word ‘trial’ includes reference under section 366(2).

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5. CONCLUSION.

A legal construct is the ability to face trial. It is concerned with a person's mental capacity who is
suffering from a mental illness, mental retardation, or any other neurological ailment.
Depression, Schizophrenia, Alzheimer's Disease, Epilepsy, Mental Retardation, Substance Abuse
Diseases, and Childhood and Adolescent Disorders are all examples of mental disorders. Not
everyone suffering from a mental illness is incompetent to stand trial. The severity of mental
disease is quite important. It is dependent on the facts of each instance. Psychiatrists conduct the
evaluation. A defendant cannot be prosecuted until he or she has been certified as being of sound
mind.

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'Procedure In Case Of Person Of Unsound Mind Tried Before Court | Code Of Criminal
Procedure Act | Bare Acts | Law Library | Advocatekhoj' (Advocatekhoj.com, 2021)
<https://www.advocatekhoj.com/library/bareacts/codeofcriminalprocedure/
329.php?Title=Code%20of%20Criminal%20Procedure%20Act&STitle=Procedure
%20in%20case%20of%20person%20of%20unsound%20mind%20tried%20before
%20Court>

(Lawtimesjournal.in, 2021) <https://lawtimesjournal.in/provisions-as-to-accused-persons-of-

unsound-mind/>

'Procedure When Accused Is Of Unsound Mind | Criminal Law Review' (CrLRR, 2021)
<http://crlreview.in/procedure-when-accused-is-of-unsound-mind/>

'Accused Person of Unsound Mind and the Laws Applicable under IPC' (Lawnn.com, 2021)
<https://www.lawnn.com/unsound-mind/>

Corner L, 'Provisions of Cr.P.C Relating to the Persons of Unsound Mind' (Law Corner,
2021) <https://lawcorner.in/provisions-of-cr-p-c-relating-to-the-persons-of-unsound-
mind/>

(2021) <https://devgan.in/crpc/chapter_25.php>

'Gurjit Singh Vs State Of Punjab On 7 April, 1986' (Indiankanoon.org, 2021)

<https://indiankanoon.org/doc/545262/>

'Sankaran Vs The State On 24 September, 1993' (Indiankanoon.org, 2021)

<https://indiankanoon.org/doc/12175/>

State Of Maharashtra Vs Sindhi @ Raman On 19 February, 1975' (Indiankanoon.org,

2021) <https://indiankanoon.org/doc/1456106/>

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