Protection Under BNSS For Accused With Unsound Mind Or Intellectual Disability To Apply Retrospectively: Kerala HC

It is definitely most refreshing, most reassuring and so also most rejuvenating to learn that while ruling most decisively in favour of accused with unsound mind or intellectual disability, the Kerala High Court has most commendably in a most learned, laudable, landmark, logical and latest judgment titled V.I. Thankappan vs State of Kerala & Anr in Crl.MC.No. 6370 of 2023 and so also cited in Neutral Citation No.: 2024:KER:67342 that was pronounced as recently as on September 5, 2024 has been most unequivocal in holding that an accused with Alzheimer's, who resultantly is incapable of making his defence in a trial, is entitled to the protection that is available under the Bharatiya Nagarik Suraksha Sanhita (BNSS). We need to note that the Single Judge Bench comprising of Hon'ble Mr Justice K Babu who authored this notable judgment also clarified that the provisions of BNSS regarding it have to be extended retrospectively to any proceedings initiated before July 1. It would be instructive to note that the Court found that as opposed to the provisions of CrPC, the BNSS does not extends the protection not just to the person of unsound mind but also to a person who is suffering from intellectual disability.

Of course, this change is definitely a welcome change and the court is required to postpone the proceedings against him when an accused is found to be of unsound mind or suffers from intellectual disability and thus is incapable of defending the case. The Kerala High Court found the Special Judge's decision to ask the accused to get himself assessed by a psychiatrist to be wrong. So it was deemed fit to remand the matter to the Special Judge obviously for re-consideration of accused's case under the provisions of BNSS. Very rightly so!

At the very outset, this brief, brilliant, bold and balanced judgment sets the ball in motion by first and foremost putting forth in para 1 that, "The challenge in this Crl.M.C. is to the order dated 20.7.2023 in C.C.No.33 of 2011 on the file of the Court of the Enquiry Commissioner and Special Judge, Thrissur."

As we see, the Bench then specifies in para 2 that, "The petitioner is the accused in the Calendar Case. He is alleged to have committed offence punishable under Section 13(1) (e) read with Section 13(2) of the Prevention of Corruption Act."

To put things in perspective, the Bench then envisages in para 3 stating aptly that, "The petitioner, a 74-year-old man, was diagnosed with 'Alzheimer's Dementia' by the Consultant Neurologist at District Hospital, Palakkad. The counsel for the petitioner filed an application under Section 329 of the Code of Criminal Procedure (Cr.P.C.) on 14.2.2023 requesting the trial court to try the fact of mental incapacity of the petitioner/accused due to Alzheimer's Dementia, contending that he is incapable of making his defence. The learned Special Judge directed the petitioner to be present in Court and, on interaction, found that he was not suffering from any infirmity or unsoundness of mind. Nevertheless, on the insistence of his counsel, the Court directed the Superintendent of the District Hospital, Thrissur, to refer the accused to the Department of Neurology, observe him and issue a certificate about the soundness of his mind. Thereafter, the Doctors in the Department of Neuromedicine, Medical College, Thrissur, examined the petitioner and issued a certificate (Annexure-A3) stating that he is suffering from severe dementia, which may be due to multifactorial causes and that since it is progressive, chances of a complete recovery is less. The doctor also pointed out that the mental status of the petitioner is to be assessed in detail by a psychiatrist, and the patient requires the help of a caretaker to take care of his daily pursuits."

Simply put, the Bench then states in para 4 that, "The learned Special Judge, after considering the report submitted from the Medical College, Thrissur, directed that if it is required by the party who submitted the application, he shall take or produce the petitioner before the Mental Health Centre, Thrissur for observation and to get a report. The learned Special Judge further directed the Superintendent of Mental Health Centre, Thrissur, to issue a certificate about the mental status of the petitioner if he approaches the Mental Health Centre, Thrissur, as per the rules."

Do note, the Bench notes in para 20 that, "Sections 367 and 368 are almost pari materia with Sections 328 and 329 of the Code. The fundamental difference between the relevant provisions in the Code and the Sanhita is that, in the Code, protection is extended to a person of unsound mind or a person suffering from mental retardation who is incapable of entering defence by reason of such unsoundness or mental retardation whereas, in the Sanhita, the protection is extended to a person of unsound mind or a person suffering from intellectual disability."

Be it noted, the Bench then notes in para 21 that, "The Mental Healthcare Act, 2017 defines "mental illness" as a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by sub-normality of intelligence."

Quite significantly, the Bench then points out in para 22 stating succinctly that, "A conjoint reading of the Mental Healthcare Act and the relevant provisions in the Sanhita indicates that the Legislature has given a wider canvass to the phrase 'incapability of making defence' by incorporating the term "intellectual disability". While enacting the Sanhita, the Legislature has noted of the definition of the term "mental illness" provided in the Mental Health Care Act, 2017."

Most significantly and so also most remarkably, what really constitutes the cornerstone of this robust judgment is encapsulated in para 23 wherein it is postulated that, "The fundamental objective of the scheme of the relevant statutes is to provide a fair and impartial trial to the accused. It has the demonstrable object that the accused should not be prejudiced. A fair trial is to be conducted in such a manner that it would ostracize injustice, prejudice etc. In a criminal trial, the accused, who is of unsound mind or is faced with intellectual disability in such a manner that he is not able to comprehend the gravity of the charges levelled against him, would not be in a position to explain the criminal acts alleged against him. He is the only competent person knowing his acts relating to the incriminating circumstances. It is his fundamental right to provide this vital information to his counsel. This is the essential reason that provisions have been engrafted in the Code, in the Sanhita and in the Mental Healthcare Act, which lay down that an enquiry or trial of a person who is incapable of defending himself due to the disability must be postponed till he can understand the proceedings. Denial of such protection will deny his fundamental human right to have a fair trial, as provided in Article 21 of the Constitution of India. It is trite that there is not even a need for an application under the relevant Chapter to try the fact of unsoundness or intellectual disability; rather, it is the mandatory duty of the Court. Dementia is a progressive loss of mental capacity that includes loss of complex brain functions over a period of time. As per the available medical advancements, dementia continues to be a disease/disorder without a cure, and the best that can be offered is care and support. It is a form of mental disability that may affect the capacity of an accused person to effectively participate in judicial proceedings. The 'intellectual disability' referred to in Section 368 of the Sanhita includes Alzheimer's Dementia if it is in such a stage in which the accused person is incapable of making his defence. Therefore, I am of the view that a person suffering from 'Alzheimer's Dementia', which is of such a degree that renders him incapable of making his defence, is entitled to the protection contained in Chapter XXV of the Code and Chapter XXVII of the Sanhita."

Equally significant and equally remarkable is what is then propounded in para 24 holding precisely that, "It is the right of the accused to have a fair trial as provided under Article 21 of the Constitution, which is sacrosanct of criminal jurisprudence. Therefore, if the provisions of the Sanhita are not extended retrospectively in cases where the accused person is affected by any intellectual disability of such a degree that renders him incapable of making his defence, there would be a failure of fair trial."

It may be recalled that the Bench pointed out in para 10 stipulating that, "The issues that arise for consideration are:

(1) Whether a person who has acute dementia is entitled to the protection contained in Chapter XXV of the Cr.P.C and Chapter XXVII of the Sanhita.

(2) Whether the provisions of Chapter XXVII of the Sanhita can be made applicable to a pending application filed on behalf of an accused affected with intellectual disability in view of the saving clause provided in Section 531 of the Sanhita."

It would be worthwhile to note that the Bench while citing a recent and relevant case law observes in para 25 that, "In Xxx v. State of Kerala (2023 (4) KHC 443 = 2023 (4) KLT 671), relying on Section 105 of the Mental Healthcare Act, 2017 this Court held that if any proof of mental illness is produced and is challenged by the other side, the Court should refer the same to the Board constituted under the Mental Healthcare Act and the opinion of the Board shall form the foundation of the decision of the Court on the question whether the trial in respect of the person could be proceeded with or not. Applying the principle of lex posterior rule, the presumption is that the Legislature, while enacting the Sanhita, has taken note of Section 105 of the Mental Healthcare Act. Therefore, the procedure to be followed while dealing with persons of unsound mind or intellectual disability is Chapter XXVII of the Sanhita, and the reference to the Board as mentioned in Section 105 of the Mental Healthcare Act is not mandatory as the protection mentioned therein has been expanded in Chapter XXVII of the Sanhita. Issue No.1 is answered accordingly."

Most strikingly, the Bench then points out in para 29 that, "Following the principles enunciated above, all applications filed and steps taken in a pending proceeding prior to 1.7.2024 shall be under the provisions of the Code of Criminal Procedure, 1973. As I discussed above, Chapter XXVII of the Sanhita has given wider protection to a person of unsound mind or a person suffering from intellectual disability. Where two persons suffering from a mental disability or intellectual disability are dealt with differently, one under the Code, and the other under the Sanhita, it amounts to a violation of Article 14 of the Constitution. Among equals, the law should be equal and equally administered and should be treated alike. The guarantee of 'equal protection' under Article 14 is a guarantee of equal treatment of persons in 'equal circumstances'. To preserve the fundamental right of an individual, the provisions of the Sanhita can be extended retrospectively to any proceedings initiated prior to 1.7.2024. The saving provision under Section 531 of the Sanhita shall not deter the enforcement of the fundamental right of an accused. Issue No.2 is answered as above."

Finally and far most significantly, the Bench then lays bare in para 30 holding sagaciously that, "Annexure A3 report reveals that the petitioner is suffering from severe dementia, and the chances of recovery are less. The petitioner is aged 74 years. The report states that the petitioner's soundness of mind is to be assessed in detail by a psychiatrist. The learned Special Judge has taken the stand that if the party requires it, he should be subjected to an examination by a psychiatrist. The learned Special Judge lost sight of the principle that he has an onerous responsibility to try the issue as to whether the petitioner has any mental disability. The order impugned is patently illegal and irregular. The impugned order, therefore, stands set aside. The learned Special Judge shall reconsider the application and proceed under Chapter XXVII of the Sanhita."

In a nutshell, there can be just no gainsaying that what the Kerala High Court has held so very clearly, commendably, cogently and convincingly in this leading case must be adhered to by all the courts in India. It is made indubitably clear by the Kerala High Court that the protection under the BNSS for accused with unsound mind or intellectual disability to apply retrospectively as we have already discussed hereinabove in detail. No denying or disputing it!