An Act to consolidate and amend the law relating to the treatment and care of mentally ill persons, to make better provision with respect to their properly and affairs and for matters connected therewith or incidental thereto.
* Chapter I - Preliminary
1. Short title, extent and commencement
2. Definitions
* Chapter II - Mental Health Authorities
3. Central Authority for Mental Health Services
4. State Authrity for Mental Health Services
* Chapter III - Psychiatric Hospitals And Psychiatric Nursing Homes
5. Establishment or maintenance of psychiatric hospitals and psychiatric nursing homes
6. Establishment or maintenance of psychiatric hospitals or psychiatric nursing homes only with licence
7. Application for licence
8. Grant or refusal of licence
9. Duration and renewal of licence
10. Psychiatric hospital and psychiatric nursing home to be maintained in accordance with prescribed conditions
11. Revocation of licence
12. Appeal
13. Inspection of psychiatric hospitals and psychiatric nursing homes and visiting of patients
14. Treatment of out-patient
* Chapter IV - Admission And Detection In Psychiatric Hospital Or Psychiatric Nursing Home
1. Part-I: Admission On Voluntary Basis
15. Request by major for admission as voluntary patient
16. Request by guardian for admission of a ward
17. Admission of, and regulation with respect to, voluntary patient
18. Discharge of voluntary patients
2. Part-II: Admission Under Special Circumstances
19. Admission of mentally ill persons under certain special circumstances
3. Part-III: Reception Orders
1. Reception orders on applications
20. Application for reception order
21. Form and contents of medical certificates
22. Procedure upon application for reception order
2. Reception orders on production of mentally ill persons before Magistrate
23. Powers and duties of police officers in respect of certain mentally ill persons
24. Procedure on production of mentally ill person
25. Order in case of mentally ill person cruelly treated or not under proper care and control
3. Further provisions regarding admission and detention of certain mentally ill persons
26. Admission as in-patient after inquisition
27. Admission and detention of mentally ill prisoner
28. Detention of alleged mentally ill person pending report by medical officer
29. Detention of mentally ill person pending his removal to psychiatric hospital or psychiatric nursing home
4. Miscellaneous provision in relation to orders under this Chapter
30. Time and manner of medical examination of mentally ill person
31. Authority for reception order
32. Copy of reception order to be sent to medical officer-in-charge
33. Restriction as to psychiatric hospitals and psychiatric nursing homes into which reception order may direct admission
34. Amendment of order or document
35. Power to appoint substitute for person upon whose application reception order has been made
36. Officers competent to exercise powers and discharge functions of Magistrate under certain sections
4. Chapter V - Inspection, Discharge, Leave Of Absence And Removal Of Mentally Ill Persons
o Part-I: Inspection
37. Appointment of visitors
38. Monthly inspection by visitors
39. Inspection of mentally ill prisoners
o Part-II: Discharge
40. Order of discharge by medical officer in charge
41. Discharge of mentally ill persons on application
42. Order of discharge on the undertaking of relatives or friends, etc. for due care of mentally ill persons
43. 43. Discharge of person on his request
44. Discharge of person subsequently found on inquisition to be of sound mind
o Part-III: Leave of Absence
45. Leave of absence
46. Grant of leave of absence by Magistrate
o Part-IV: Removal
47. 47. Removal of mentally ill person from one psychiatric hospital or psychiatric nursing home to any other psychiatric hospital or psychiatric nursing home
48. Admission, detention and retaking in certain cases
49. Appeal from orders of Magistrate
5. Chapter VI - Judicial Inquisition Regarding Alleged Mentally Ill Person Possessing Property, Custody Of His Person And Management Of His Property
50. Application for judicial inquisition
51. Issues on which finding should be given by District Court after inquisition
52. Provision for appointing guardian of mentally ill person and for manager of property
53. Appointment of guardian of mentally ill person
54. Appointment of manager for management of property of mentally ill person
55. Appointment of manager by Collector
56. Manager of property to execute bond
57. Appointment and remuneration of guardians and managers
58. Duties of guardian and manager
59. Powers of manager
60. Manager to furnish inventory and annual accounts
61. Manager's power to execute conveyances under orders of District Court
62. Manager to perform contracts directed by District Court
63. Disposal of business premises
64. Manager may dispose of leases
65. Power to make order concerning any matter connected with mentally ill person.
66. Proceeding if accuracy of inventory or accounts is impugned
67. Payment into public treasury and investment of proceeds of estate.
68. Relative may sue for account
69. Removal of managers and guardians
70. Dissolution and disposal of property of partnership on a member becoming mentally ill
71. Power to apply property for maintenance of mentally ill person without appointing manager in certain cases
72. Power to order transfer of stock, securities or shares belonging to mentally ill person in certain cases.
73. Power to order transfer of stock, securities or shares of mentally ill person residing out of India
74. Power to apply property for mentally ill person's maintenance in case of temporary mental illness.
75. Action taken in respect of mentally ill person to be set aside if District Court finds that his mental illness has ceased
76. Appeals
77. Power of District Court to make regulations
6. Chapter VII - Liability To Meet Cost Of Maintenance Of Mentally Ill Persons Detained In Psychiatric Hospital Or Psychiatric Nursing Home
78. Cost of maintenance to be borne by Government in certain cases
79. Application to District Court for payment of cost of maintenance out of estate of mentally ill person or from a person legally bound to maintain him
Persons legally bound to maintain mentally ill person not absolved from such liability
7.
81. 81.
8. Chapter IX - Penalties And Procedure
82. Penalty for establishment or maintenance of psychiatric hospital or psychiatric nursing home in contravention of Chapter III
83. Penalty for improper reception of mentally ill person
84. Penalty for contravention of Secs. 60 and 69.
85. General provision for punishment of other offences
86. Offences by companies
87. Sanction for prosecutions
9. Chapter X - Miscellaneous
88. Provision as to bonds
89. Report by medical officer
90. Pension, etc. of mentally ill person payable by Government
91. Legal aid to mentally ill person at State expense in certain cases
92. Protection of action taken in good faith
93. Construction of reference to certain laws, etc.
94. Power of Central Government and State Government to make rules
95. Rules made by Central Government or the State Government to be laid before the Legislature
96. Effect of Act on other laws
97. Power to remove difficulty
98. Repeal and saving
STATEMENT OF OBJECTS AND REASONS OF ACT 14 of 19872
1. The attitude of the society towards persons afflicted with mental illness has changed considerably and it is now realised that no stigma should be attached to such illness as it is curable, particularly, when diagnosed at an early stage. Thus the mentally ill persons are to be treated like any other sick persons and the environment around them should be made as normal as possible.
2. The experience of the working of Indian Lunacy Act, 1912 ( 4 of 1912) has revealed that it has become out-moded. With the rapid advance of medical science and the understanding of the nature of malady, it has become necessary to have fresh legislation with provisions for treatment of mentally ill persons in accordance with the new approach.
3. It is considered necessary -
1. to regulate admission to psychiatric hospitals or psychiatric nursing homes of mentally ill-persons who do not have sufficient understanding to seek treatment on a voluntary basis, and to protect the rights of such persons while being detained;
2. To protect society from the presence of mentally ill persons who have become or might become a danger or nuisance to others;
3. To protect citizens from being detained in psychiatric hospitals or psychiatric nursing homes without sufficient cause;
4. To regulate responsibility for maintenance charges of mentally ill persons who are admitted to psychiatric hospitals or psychiatric nursing homes;
5. To provide facilities for establishing guardianship or custody of mentally ill persons who are incapable of managing their own affairs;
6. To provide for the establishment of Central Authority and State Authorities for Mental Health Services;
7. To regulate the powers of the Government for establishing, licensing and controlling psychiatric hospitals and psychiatric nursing homes for mentally ill persons;
8. To provide for legal aid to mentally ill persons at State expense in certain cases.
4. The main object of the Bill is to implement the aforesaid proposals.
COMMENT
It is well settled that when the language of the statute is clear and admits of no ambiguity, recourse to the Statement of Objects and Reasons for the purpose of construing a statutory provision is not permissible. Court must strive to so interpret the statute as to protect and advance the object and purpose of the enactment. Any narrow or technical interpretation of the provisions would defeat the legislative policy. The Court must, therefore, keep the legislative policy in mind in applying the provisions of the Act to the facts of the case2.
The law is well settled that though the Statement of objects and Reasons accompanying a legislative bill could not be used to determine the true meaning and effect of the substantive provisions of a statute, it was permissible to refer to the same for the purpose of understanding the background, the antecedent state of affairs, the surrounding circumstances in relation to the statute, and the evil which the statute sought to remedy3.
PREAMBLE - It is established law that preamble discloses the primary intention of the statute but does override the express provisions of the statute4. Although a preamble of a statute is a key to interpretation of the provisions of the Act, but the intention of Legislature is not necessarily to be gathered from the preamble taken by itself, but to be gathered from the provisions of the Act. Where the language of the Act is clear, the preamble cannot be a guide, but where the object or meaning of the provisions of the Act is not clear then an aid from the preamble can be taken into consideration for purpose of explaining the provisions of the Act5.
It is now well settled that the preamble of a statutory instrument cannot control the express clear language and sweep of the operating provisions of such an instrument. Nor can the express language of a statutory provision be curtailed or read down in the light of the preamble in the absence of any ambiguity in the enacted provisions6.
Be it enacted by Parliament in the Thirty-eighth Year of the Republic of India as follows:
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Chapter I - Preliminary
1. Short Title, Extent And Commencement
1. This Act may be called the Mental Health Act, 1987.
2. It extends to the whole of India
3. It shall come into force on such date1 as the Central Government may, by notification, appoint and different dates may be appointed for different States and for different provisions of this Act, and any reference in any provision to the commencement of this Act in a State shall be construed as a reference to the coming into force of that provision in that state.
COMMENT
The Act repeals the Indian Lunacy Act, 1912 ( 4 of 1912), and the Lunacy Act, 1977 (Jammu and Kashmir Act 25 of 1977). The provisions of the Indian Lunacy Act 1912 and the Amending Act which compendiously called Lunacy Act, 1912-1926 were not absolutely exhaustiv2.
S.O. 43 (E), DATED 11TH JANUARY, 1993 - In exercise of the powers conferred by sub-section (3) of Sec. 1 of the Mental Health Act, 1987 (14 of 1987), the Central Government hereby appoints the Ist day of April, 1993 as the date on which the said Act shall come into force in all the States and Union Territories.
RULE OF INTERPRETATION.- It is an accepted proposition of law that Acts must be construed as a whole. Guidance with regard to the meaning of a particular word or phrase may be found in other words and phrases in the same section or in other sections although the utility of an extensive consideration of other parts of the same statute will vary from case to case3.
In interpreting the provisions the exercise undertaken by the Court is to make explicit the intention of the Legislature which enacted the legislation. It is not for the Court to reframe the legislation for the very good reason that the powers to "legislate" have not been conferred on the Court4.
In order to sustain the presumption of constitutionality of a legislative measure, the Court can take into consideration matters of common knowledge, matters of common report, the history of the times and also assume every state of fact which can be conceived existing at the time of the legislation5.
The principle of the interpretation that no word used by the Legislature in a legislation is useless, cannot be fitted into the situation where the question relates to the interpretation of an agreement. An agreement is not to be culled out from ambiguity6.
INTERPRETATION OF STATUTE-DUTY OF THE COURT - It is well settled that the Courts should read different provisions of an Act in a manner that no part thereof is held to be superfluous or surplus and that where language of statute leads to manifest contradictions the Court must construe them on the basis of which the said provisions can survive1.
GENERALIA SPECIALIBUS NON DEROGANT- It is well-known proposition of law that when a matter falls under any specific provision, then it must be governed by that provision and not by the general provision (Generalia specialibus non derogant)2.
CONSTRUCTION OF WORK- It is settled view that in determining the meaning or connotation of words and expressions describing an article one should be construed in the sense in which they are understood. The reason is that it is they who are concerned with it and, it is the sense in which they understand it which constitutes the definitive index of the legislative intention3.
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2. Definitions
In this Act, unless the context otherwise requires -
1. "cost of maintenance". In relation to a mentally ill person admitted in a psychiatric hospital or psychiatric nursing home, shall mean the cost of such items as the State Government may, by general or special order, specify in this behalf;
2. "District Court" means, in any area for which there is a city Civil Court, that Court, and in any other area the principal Civil Court of original jurisdiction, and includes any other Civil Court which the State Government may, by notification, specify as the Court competent to deal with all or any of the matters specified in this Act:
3. "Inspecting Officer" means a person authorised by the State Government or by the licensing authority to inspect any psychiatric hospital or psychiatric nursing home;
4. "license" means a licence granted under Sec.8;
5. "licensee" means the holder of a licence;
6. "licensed psychiatric hospital" or "licensed psychiatric nursing home" means a psychiatric hospital or psychiatric nursing home, as the case may be, licensed, or deemed to be licensed, under this Act;
7. "licensing authority" means such officer or authority as may be specified by the State Government to be the licensing authority to the purposes of this Act;
8. "Magistrate" means -
1. in relation to a metropolitan area within the meaning of Cl (k) of Sec. 2 of the Code of Criminal Procedure, 1973 (2 of 1974), a Metropolitan Magistrate;
2. in relation to any other area, the Chief Judicial Magistrate, Sub-Divisional Judicial Magistrate or such other Judicial Magistrate of the first class as the State Government may, by notification, empower to perform the functions of a Magistrate under this Act:
9. "medical officer" means a gazetted medical officer in the service of Government and includes a medical practitioner declared, by a general or special order of the State Government, to be a medical officer for the purposes of this Act;
10. "medical officer in charge" in relation to any psychiatric hospital or psychiatric nursing home, means the medical officer who, for the time being, is in charge of that hospital or nursing home;
11. "medical practitioner" means a person who possesses a recognised medical qualification as defined -
1. in Cl (h) of Sec 2 of the Indian Medical Council Act, 1956 (102 of 1956), and whose name has been entered in the State Medical Register, as defined in Cl. (k) of that section;
2. in Cl (h) of sub-section (1) of Sec. 2 of the Indian Medicine Central Council Act, 1970 (48 of 1970), and whose name has been entered in a State Register of Indian Medicine, as defined in cl (j) of sub-section (1) of that section; and
3. in Cl. (g) of sub-section (1) of Sec. 2 of the Homoeopathy Central Council Act, 1973 (59 of 1973), and whose name has been entered in a State Register of Homoeopathy, as defined in Cl. (I) of sub-section 1) of that section;
12. "Mentally ill person" means a person who is in need of treatment by person of any mental disorder other than mental retardation;
13. "mentally ill prisoner" means a mentally ill person for whose detention in, or removal to, a psychiatric hospital, psychiatric nursing home, jail or other place of safe custody, an order referred to in Sec. 27 has been made;
14. "minor" means a person who has not completed the age of eighteen years;
15. "notification" means a notification published in the Official Gazette;
16. "prescribed" means prescribed by rules made under this Act;
17. "psychiatric hospital" or "psychiatric nursing home" means a hospital,
or as the case may be, a nursing home established or maintained by the Government or any other person for the treatment and care of mentally ill persons and includes a convalescent home established or maintained by the Government or any other person for such mentally ill persons; but does not include any general hospital or general nursing home established or maintained by the Government and which provides also for psychiatric services;
18. "psychiatrist" means a medical practitioner possessing a post-graduate degree or diploma in psychiatry, recognised by the Medical Council of India, constituted under Indian Medical Council Act, 1856 (102 of 1956), and includes, in relation to any State, any medical officer who, having regard to his knowledge and experience in psychiatry, has been declared by the Government of that State to be a psychiatrist for the purposes of this Act;
19. " reception order" means an order made under the provision of this Act for the admission and detention of a mentally ill person in a psychiatric Hospital or psychiatric nursing home;
20. " relative" includes any person related to the mentally ill person by blood, marriage or adoption;
21. "State Government" in relation to a Union territory, means the Administrator thereof.
COMMENT
This section defines the various expressions occurring in the Act.
INTERPRETATION OF SECOTION - The Court can merely interpret the section; it cannot re-write, recast or redesign the section1.
RELATIVE - MEANING OF -certainly the word "relative" used in Sec. 3 of the Lunacy Act (since repealed by this Act) has to be understood in a legal sense and it has to be understood in the setting where that word is used in the provisions of the statute, particularly, the provision enabling a relative to entertain a petition under Sec. 63 of the Lunacy Act2.
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Chapter II - Mental Health Authorities
3. Central Authority For Mental Health Services
1. The Central Government shall establish an authority for mental health with such designation as it may deem fit.
2. The Authority established under sub-section (1) shall be subject to the superintendence, direction and control of the Central Government.
3. The authority established under sub-section (1) shall -
1. be in charge of regulation, development, direction and co-ordination with respect to Mental Health Services under the Central Government and all other matters which, under this Act, are the concern of the Central Government or any officer or authority subordinate to the Central Government.
2. Supervise the psychiatric hospitals and psychiatric nursing homes and other Mental Health Service Agencies (including places in which mentally ill persons may be kept or detained) under the control of the Central Government.
3. Advise the Central Government on all matters relating to mental health; and
4. Discharge such other functions with respect to matters relating to mental health as the Central Government may require.
EXPLANATION - For the purposes of this section and Sec.4 "Mental Health Services" include, in addition to psychiatric hospitals and psychiatric nursing homes, observation wards, day-care centres, in patient treatment in general hospitals, ambulatory treatment facilities and other facilities, convalescent homes and half-way-homes for mentally ill persons.
COMMENT
This section empowers the Central Government to establish Central Authority for Mental Health Services.
EXPLANATION- It is now well settled that an explanation added to a statutory provision is not a substantive provision in any sense of the term but as the plain meaning of the word itself shows it is merely meant to explain or clarify certain ambiguities which may have crept in the statutory provisiona1.
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4. State Authority For Mental Health Services
1. The State Government shall establish an authority for mental with such designation as it may deem fit.
2. The Authority established under sub - section (1) shall be subject to the superintendence, direction and control of the State Government.
3. The Authority established under sub - section (1) shall -
1. be in charge of regulation, development and co-ordination with respect to Mental Health Service under the State Government and all other matters which, under this Act , the concern of the state Government or any officer or authority subordination to the State Government :
2. supervise the psychiatric hospitals and psychiatric nursing homes and other Mental health Services Agencies (including places in which mentally ill persons may be kept or detained )under the control of the State Government :
3. advise the State Government on all matters relating to mental health ; and
4. discharge such other functions with respect to matters relating to mental health as the State Government may require.
COMMENT
This section empowers the State Government to established State authority for Mental Health services.
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Chapter III - Psychiatric Hospitals And Psychiatric Nursing Homes
5. Establishment or maintenance of psychiatric hospitals and psychiatric nursing homes
1. The Central Government may, in any part of India, or the state government may, within the limits of its jurisdiction, established or maintain psychiatric hospitals hospitals or psychiatric nursing homes for the admission , and care of mentally ill persons at such places as it thinks fit ; and separate psychiatric hospitals and psychiatric nursing homes may be established or maintained for, -
1. those who are under the age of sixteen years;
2. those who are addicted to alcohol or other drugs which lead to behavioural changes in a persons ;
3. those who have been convicted of any offence; and
4. those belonging to such other or category of persons as may be prescribed .
2. Where a psychiatric hospital or psychiatric nursing home is established or maintained by the Central Government, any reference in this Act to the State Government shall, in relation to such hospital or nursing home, be construed as a reference to the Central Government.
COMMENT
This section empowers the Central Government or the State Government to established or maintain psychiatric nursing homes.
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6. Establishment or maintenance of psychiatric hospitals or psychiatric nursing homes only with licence
1. On and after the commencement of this Act, no person shall established or maintain a psychiatric hospital or psychiatric nursing home unless he holds a valid licence granted to him under this Act:
Provided that a psychiatric hospital or psychiatric nursing home (whether called asylum or by any other name) licensed by the central government or any state Government and maintained as such immediately before the commencement of this Act may continue to be maintained, and shall be deemed to be a licensed psychiatric hospital or licensed phychiatric nursing home, as the case may be, under this Act,-
1. for a period of three months from such commencement,
2. if an application made in accordance with Sec. 7 for a licence is pending on the expiry of the period specified in CI. (a) till the disposal of such application.
2. Nothing contained in sub-section (1) shall apply to a psychiatric hospital or psychiatric nursing home established or maintained by a Central Government or a State Government.
COMMENT
This section prohibits establishment or maintenance of any psychiatric hospital or psychiatric nursing home by any person, unless he holds a valid licence granted to him under the Act.
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7. Application for licence
1. Every person, who holds, at the commencement of this Act, a valid licence authorising that person to establish or maintain any psychiatric hospital or psychiatric nursing home, shall, if the said person intends to establish or continue the maintenance of such hospital or nursing home after the expiry of the period referred to in Cl. (a) of the proviso to sub-section (1) of Sec. 6, make at least one month before the expiry of such period, an application to the licensing authority for the grant of a fresh licence for the establishment or maintenance of such hospital or nursing home, as the case may be.
2. A person, who intends to establish or maintain, after the commencement of this Act, a psychiatric hospital or psychiatric nursing home, shall, unless the said person already holds a valid licence, make an application to the licence authority for the grant of a licence.
3. Every application under sub-section (1) or sub-section (2) shall be in such form and be accompanied by such fee as may be prescribed.
COMMENT
This section provides for application for licence for establishment or maintenance of psychiatric hospital or psychiatric nursing homes.
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8. Grant or refusal of licence
On receipt of an application under Sec.7, the licensing authority shall make such inquiries as it may deem fit and where it is satisfied that -
1. the establishment or maintenance of the psychiatric hospital or psychiatric nursing home or the continuance of the maintenance of any such hospital or nursing home established before the commencement of this Act is necessary;
2. the applicant is in a position to provide the minimum facilities prescribed for the admission, treatment and care of mentally ill persons; and
3. The psychiatric hospital or psychiatric nursing home, will be under the charge of medical officer who is a psychiatrist.
It shall grant a licence to the applicant in the prescribed form, and where it is not so satisfied, the licensing authority shall, by order, refuse to grant the licence applied for:
Provided that, before making any order refusing to grant a licence, the licensing authority shall give to the applicant a reasonable opportunity of being heard and every order of refusal to grant a licence shall set out therein the reasons for such refusal and such reasons shall be communicated to the applicant in such manner as may be prescribed.
COMMENT
This section empowers the licensing authority to grant or refuse licence for establishment or maintenance of psychiatric hospital or psychiatric nursing homes.
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9. Duration and renewal of licence
1. A licence shall not be transferable or heritable.
2. Where a licensee is unable to function as such for any reason or where a licensee dies, the licensee or, as the case may be, the legal representative of such licensee shall forthwith report the matter in the prescribed manner to the licensing authority and notwithstanding anything contained in sub-section (I), the psychiatric hospital or psychiatric nursing home concerned may continue to be maintained and shall be deemed to be a licensed psychiatric hospital or licensed psychiatric nursing home, as the case may be -
1. for a period of three months from the date of such report or in the case of the death of the licensee from the date of his death, or
2. if an application made in accordance with sub-section (3) for a licence is pending on the expiry of the period specified in Cl. (a), till the disposal of such application.
3. The legal representative of the licensee referred to in sub-section (2) shall, if he intends to continue the maintenance of the psychiatric hospital or psychiatric nursing home after the expiry of the period referee to in sub-section (2), make , at least one month before the expiry of such period, an application to the licensing authority for the grant of a fresh licence for the maintenance of such hospital or nursing home, as the case may be, and the provisions of Sec. 8 shall apply in relation to such application as they apply in relation to an application made under Sec.7
4. Every licence shall, unless revoked earlier under Sec. 11, be valid for a period of five years from the date on which it is granted.
5. A licence may be renewed from time to time, on an application made in that behalf to the licensing authority, in such form and accompanied by such fee, as may be prescribed, and every such application shall be made not less than one year before the date on which the period of validity of the licence is due to expire:
Provided that the renewal of a licence shall not be refused unless the licensing authority is satisfied that -
1. the licensee is not in a position to provide in a psychiatric hospital or psychiatric nursing home, the minimum facilities prescribed for the admission, treatment and care therein mentally ill persons; or
2. the licensee is not in a position to provide a medical officer which is a psychiatrist to take charge of the psychiatric hospital or psychiatric nursing home, or
3. the licensee has contravened any of the provisions of this Act or any rule made thereunder.
COMMENT
This section empowers the licensing authority to grant or refuse licence for establishment or maintenance of the psychiatric hospital or psychiatric nursing home, under certain circumstances.
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10. Psychiatric hospital and psychiatric nursing home to be maintained in accordance with prescribed conditions
Every psychiatric hospital or psychiatric nursing home shall be maintained in such manner and object to such condition as may be prescribed.
COMMENT
This section lays down that every psychiatric hospital/nursing home shall be maintained properly according to the prescribed conditions.
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11. Revocation of licence
1. The licensing authority may, without prejudice to any other penalty that may be imposed on the licensee, by order in writing, revoke the licence if it is satisfied that -
1. the psychiatric hospital or psychiatric nursing home is not being maintained by the licensee in accordance with the provisions of this Act or the rules made thereunder; or
2. the maintenance of the psychiatric hospital or psychiatric nursing home is being carried on in a manner detrimental to the moral, mental or physical well-being of other in-patients thereof:
Provided that no such order shall be made except after giving the licensee a reasonable opportunity of being heard, and every such order shall set out therein the grounds for the revocation of the licence and such grounds shall be communicated to the licensee in such manner as may be prescribed.
2. Every order made under sub-section (1) shall contain a direction that the in-patients of the psychiatric hospital or psychiatric nursing home shall be transferred to such other psychiatric hospital or psychiatric nursing home as may be specified in that order and it shall also contain such provisions (including provisions by way of directions) as to the care and custody of such in-patients pending such transfer.
3. Every order made under sub-section (1) shall take effect -
1. where no appeal has been preferred against such order under Sec. 12, immediately on the expiry of the period prescribed for such appeal; and
2. where such appeal has been preferred and the same has been dismissed, from the date of the order of such dismissal.
COMMENT
This section empowers the licensing authority to revoke the licence in case the psychiatric hospital or nursing home is not maintained properly or its maintenance is detrimental to the well-being of the in-patients thereof.
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12. Appeal
1. Any person aggrieved by an order of the licensing authority refusing to grant or renew a licence, or revoking a licence, may, in such manner and within such period as may be prescribed, prefer an appeal to the State Government:
Provided that the State Government may entertain an appeal preferred after the expiry of the prescribed period if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.
2. Every appeal under sub-section(1) shall be made in such form and accompanied by such fee as may be prescribed.
COMMENT
This section makes provision for preferring an appeal to the State Government by any aggrieved person against the order of the licensing authority refusing to grant or renew a licence, or revoking a licence for establishment or maintenance of the psychiatric hospital/nursing home.
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13. Inspection of psychiatric hospitals and psychiatric nursing homes and visiting of patients
1. An Inspecting Officer may, at any time, enter and inspect any psychiatric hospital or psychiatric nursing home and require the production of any records, which are required to be kept in accordance with the rules made in this behalf, for inspection: Provided that any personal records of a patient so inspected shall be kept confidential except for the purposes of sub-section (3).
2. The Inspecting Officer may interview in private any patient receiving treatment and care therein -
1. for the purpose of inquiring into any complaint made by or on behalf of such patient as to the treatment and care.
2. in any case, where the Inspecting Officer has reason to believe that any in-patient is not receiving proper treatment and care.
3. Where the Inspecting Officer is satisfied that any in-patient in a psychiatric hospital or psychiatric nursing home is not receiving proper treatment and care, he may report the matter to the licensing authority and thereupon the licensing authority may issue such direction as it may deem fit to the medical officer-in-charge of the licensee of the psychiatric hospital, or, as the case may be, the psychiatric nursing home and every such medical officer-in-charge or licensee shall be bound to comply with such directions.
COMMENT
This section empowers an Inspecting Officer to inspect psychiatric hospitals / nursing homes, records thereof and to visit and interview patients receiving treatment and care therein.
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14. Treatment of out-patient
Provision shall be made in every psychiatric hospital or psychiatric nursing homes for such facilities as may be prescribed for the treatment of every mentally ill - persons, patients or who, for the time being, is not undergoing treatment as in - patients.
COMMENT
This section makes, provision for the treatment of mentally ill persons in the psychiatric hospital / nursing home, as an out - patients, in case his condition dies not warrant his admission or an in - patient.
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Chapter IV Admission And Detention In Psychiatric Hospital
Or
Psychiatric Nursing Home
PART I
ADMISION ON VOLUNTARY BASIS
15. Request by major for admission as voluntary patient
Any persons (not being a minor), who considers himself to be a mentally ill person and desires to be admitted to any psychiatric nursing home for treatment, may request the medical officer in charge for being admitted as a voluntary patient.
COMMENT
This section makes provision for admission to a psychiatric hospital / nursing home for Treatment as a voluntary patient on request by a major mentally ill person.
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16. Request by guardian for admission of a ward
Where the guardian of a minor considers such minor to be a mentally ill person and desires to admit such minor in any psychiatric hospital or psychiatric nursing home for treatment, he may request the medical officer-in-charge for admitting such minor as a voluntary patient.
COMMENT
This section makes provision for admission of a minor mentally ill person to a psychiatric hospital/nursing home for treatment as a voluntary patient, on request by guardian of such minor.
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17. Admission of, and regulation with respect to, voluntary patient
1. On receipt of a request under Sec.15 or Sec.16, the medical officer-in-charge shall make such inquiry as he may deem fit within a period not exceeding twenty- four hours and if satisfied that the applicant or, as the case may be, the minor requires treatment as an in - patients in the psychiatric hospital or psychiatric nursing home, he may admit therein such application or, as the case may be, minor as a voluntary patient.
2. Every voluntary patient admitted to a psychiatric hospital or psychiatric nursing home shall be bound to abide by such regulations as may be made by the medical officer - in - charge or the licensee of the psychiatric hospital or psychiatric nursing home.
This section deals with the matter relating to admission of, and regulation with respect to voluntary patients.
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18. Discharge of voluntary patients
1. The medical officer-in-charge of a psychiatric hospital or psychiatric nursing home shall, on a request made in that behalf -
1. by any voluntary patient; and
2. by the guardian of the patient, if he is a minor voluntary patient, discharge, subject to the provisions of sub-section (3) and within twenty-four hours of the receipt of such request, the patient from the psychiatric hospital or psychiatric nursing home.
2. Where a minor voluntary patient who is admitted as an in-patient in any psychiatric hospital or psychiatric nursing home attains majority, the medical officer-in-charge of such hospital or nursing home, shall, as soon as may be, intimate the patient that he has attained majority and that unless a request for his continuance as an in-patient is made by him within a period of one month of such intimation, he shall be discharged, and if, before the expiry of the said period, no request is made to the medical officer-in-charge for his continuance as an in-patient, he shall, subject to the provisions of sub-section (3), be discharged on the expiry of the said period.
3. Notwithstanding anything contained in sub-section (1) or sub-section (2) where the medical officer-incharge of a psychiatric hospital or psychiatric nursing home is satisfied that the discharge of a voluntary patient under sub-section (1) or sub-section (2) will not be in the interest of such voluntary patient, he shall, within seventy-two hours of the receipt of a request under sub-section (1), or, if no request under sub-section (2) has been made by the voluntary patient before the expiry of the period mentioned in that sub-section within seventy-two hours of such expiry constitute a Board consisting of two medical officers and seek its opinion as to whether such voluntary patient needs further treatment and if the Board is of the opinion that such voluntary patient needs further treatment in the psychiatric hospital or psychiatric nursing home the medical officer shall not discharge the voluntary patient, but continue his treatment for a period not exceeding ninety days at a time.
COMMENT
This section lays down the procedure for discharge of voluntary patient from the psychiatric hospital or psychiatric nursing home.
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PART II
ADMISSION UNDER SPECIAL CIRCUMSTANCES
19. Admission of mentally ill persons under certain special circumstances
Any mentally ill persons who does not, or is unable to, express his willingness for admission as a voluntary patient, may be admitted and kept as an in-patient in a psychiatric nursing hospital or psychiatric nursing home on an application made in that behalf by a relative or a friend of the mentally ill persons if the medical officers-in-charge is satisfied that in the interest of the mentally ill persons it is necessary so to do:
COMMENT
This section deals with the matters relating to admission of, and regulation with respect to voluntary patients.
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PART III
RECEPTION ORDERS
20. Application for reception order
1. An application for a reception order may be made by -
1. the medical officer-in-charge of a psychiatric hospital or psychiatric nursing home, or
2. by the husband, wife or any other relative of the mentally ill person.
2. Where a medical officer-in-charge of a psychiatric hospital or psychiatric nursing home in which a mentally ill- person is undergoing treatment under a temporary treatment order is satisfied that -
1. the mentally ill person is suffering from mental disorder of such a nature and degree that his treatment in the psychiatric hospital or as the case may be, psychiatric nursing home is required to be continued for more than six months, or
2. It is necessary in the interests of the health and personal safety of the mentally ill person or for the protection of others that such person shall be detained in a psychiatric hospital or psychiatric nursing home.
He may make an application to the Magistrate within the local limits of whose jurisdiction the psychiatric hospital or, as the case may be, psychiatric nursing home is situated, for the detention of such mentally ill-person under a reception order in such psychiatric hospital or psychiatric nursing home, as the case may be.
3. Subject to the provisions of sub-section (5), the husband or wife of a person who is alleged to be mentally ill or, where there is no husband or wife, or where the husband or wife is prevented by reason of any illness or absence from India or otherwise from making the application, any other relative of such person may make an application to the Magistrate within the local limits of whose jurisdiction the said person ordinarily resides, for the detention of the alleged mentally ill-person under a reception order in a psychiatric hospital or psychiatric nursing home.
4. Where the husband or wife of the alleged mentally ill person is not the applicant, the application shall contain the reasons for the application not being made by the husband or wife and shall indicate the relationship of the applicant with the alleged mentally ill person and the circumstances under which the application is being made.
5. No person -
1. who is a minor, or
2. who , within fourteen days before the date of the application, has not seen the alleged mentally ill person, shall make an application under this section.
6. Every application under sub-section (3) shall be made in the prescribed form and shall be signed and verified in the prescribed manner and shall state whether any previous application had been made for inquiry into the mental condition of the alleged mentally ill person and shall be accompanied by two medical certificates from two medical practitioners of whom one shall be a medical practitioner in the service of Government.
COMMENT
This section details the procedure for disposal of application for reception order.
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21. Form and contents of medical certificates
Every medical certificate referred to in sub-section (6) of Sec. 20 shall contain a statement -
1. that each of the medical practitioner referred to in that sub-section has independently examined the alleged mentally ill person and has formed his opinion on the basis of his own observations and from the particulars communicated to him;
2. that in the opinion of each such medical practitioner the alleged mentally ill person is suffering from mental disorder of such a nature and degree as to warrant the detention of such person in a psychiatric hospital or psychiatric nursing home and that such detention is necessary in the interests of the health and personal safety of that person or for the protection of others.
COMMENT
The section prescribes form and contents of medical certificates.
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22. Procedure upon application for reception order
1. on receipt of an application under sub-section (2) of Sec. 20, the Magistrate may make a reception order, if he is satisfied that -
1. the mentally ill person is suffering from mental disorder of such a nature and degree that it is necessary to detain him in a psychiatric hospital or psychiatric nursing home for treatment; or
2. it is necessary in the interests of the mental and personal safety of the mentally ill person or for the protection of others that he should be so detained, and a temporary treatment order would not be adequate in the circumstances of the case and it is necessary to make a reception order.
2. On receipt of an application under sub-section
3. of Section.20, the Magistrate shall consider the statements made in the application and the evidence of mental illness as disclosed by the medical certificates.
4. If the Magistrate considers that there are sufficient grounds for proceeding further, he shall personally examine the alleged mentally ill person unless, for reasons to be recorded in writing, he thinks that it is not necessary or expedient to do so.
5. If the Magistrate is satisfied that a reception order may properly be made forthwith, he may make such order, and if the Magistrate is not so satisfied, he shall fix a date for further consideration of the application and may make such inquiries concerning the alleged mentally ill-person as he thinks fit.
6. The notice of the date fixed under sub-section (4) shall be given to the applicant and to any other person to whom, in the opinion of the Magistrate such notice shall be given.
7. If the Magistrate fixes a date under sub-section (4) for further consideration of the application, he may make such order as he thinks fit, for the proper care and custody of the alleged mentally ill person pending disposal of the application.
8. On the date fixed under sub-section (4), or on such further date as may be fixed by the Magistrate, he shall proceed to consider the application in camera, in the presence of -
1. the applicant:
2. the alleged mentally ill person (unless the Magistrate in his discretion otherwise directs);
3. the person who may be appointed by the alleged mentally ill person to represent him; and
4. Such other person as the Magistrate thinks fit. and if the magistrate is satisfied that the alleged mentally ill person, in relation to whom the application is made, is so mentally ill that in the interests of the health and personal safety of that person or for the protection of others it is necessary to detail him in a psychiatric hospital or psychiatric nursing home for treatment, he may pass a reception order for that purpose and if he is not so satisfied, he shall dismiss the application and any such order may provide for the payment of the costs of the inquiry by the applicant personally or from out of the estate of the mentally ill person, as the Magistrate may deem appropriate.
9. If any application is dismissed under sub-section(7), the Magistrate shall record the reasons for such dismissal and a copy of the order shall be furnished to the applicant.
COMMENT
This section lays down the procedure for disposal of application for a reception order.
B- Reception orders on production of mentally ill
Persons before Magistrate
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23. Powers and duties of police officers in respect of certain mentally ill persons
1. Every officer in charge of a police station -
1. may take or cause to be taken into protection any person found wandering at large within the limits of his station whom he has reason to believe to be so mentally ill as to be incapable of taking care of himself, and
2. shall take or cause to be taken into protection any person within the limits of his station whom he has reason to believe to be dangerous by reason of mental illness.
2. No person taken into protection under sub-section (1) shall be detained by the police without being informed, as soon as may be, of the grounds for taking him into such protection, or where, in the opinion of the officer taking the person into protection, such person is not capable of understanding those grounds, without his relatives or friends, if any, being informed of such grounds.
3. Every person who is taken into protection and detained under this section shall be produced before the nearest Magistrate within a period of twenty-four hours of taking him into such protection excluding the time necessary for the journey from the place where he was taken into such protection of the Court of the Magistrate and shall not be detained beyond the said period without the authority of the Magistrate.
COMMENT
This section empowers the police officer in charge of a police station to take action in respect of certain mentally ill persons.
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24. Procedure on production of mentally ill person
1. If a person is produced before the Magistrate under sub-section (3) of Sec.23, and if in his opinion, there are sufficient grounds for proceeding further, the Magistrate shall -
1. examaine the person to assess his capacity to understand.
2. Cause him to be examined by a medical officer, and
3. Make such inquiries in relation to such person as he may deem necessary.
2. After the completion of the proceeding under sub-section (1), the Magistrate may pass a reception order authorising the detention of the said person as an in-patient in a psychiatric hospital or psychiatric nursing home -
1. if the medical officer certifies such person to be a mentally ill person, and
2. if the Magistrate is satisfied that the said person is a mentally ill person and that in the interest of the health and personal safety of that person or for the protection of others, it is necessary to pass such order.
Provided that if any relative or friend of the mentally ill person desires that the mentally ill person be sent to any particular licensed psychiatric hospital or licensed psychiatric nursing home for treatment therein and undertakes in writing to the satisfaction of the Magistrate to pay the cost of maintenance of the mentally ill person in such hospital or nursing home, the Magistrate shall, if the medical officer in charge of such hospital or nursing home consents, make a reception order for the admission of the mentally ill person into that hospital or nursing home and detention therein;
Provided further that if any relative or friend of the mentally ill person enters into a bond, with or without sureties for such amount as the Magistrate may determine, undertaking that such mentally ill person will be properly taken care of and shall be prevented from doing any injury to himself or to others, the Magistrate may, instead of making a reception order, hand him over to the care of such relative or friend.
COMMENT
This section lays down procedure on production of mentally ill person before a Magistrate.
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25. Order in case of mentally ill person cruelly treated or not under proper care and control
1. Every officer in charge of a police station is mentally ill and is not under proper care and control, or is mentally ill person, shall forthwith report the fact to the Magistrate within the local limits of whose jurisdiction the mentally ill person resides.
2. Any private person who has reason to believe that any person is mentally ill and is not under proper care and control,, or is ill-treated or neglected by any relative or other person having charge of such mentally ill person, may report the fact to the Magistrate within the local limits of whose jurisdiction the mentally ill person resides.
3. If it appears to the Magistrate, on the report of a police officer or on the report or information derived from any other person, or otherwise that any mentally ill person within the local limits of his jurisdiction is not under proper care and control, or is ill-treated or neglected by any relative or other person having the charge of such mentally ill person, the Magistrate may cause the mentally ill person to be produced before him, and summon such relative or other person who is, or who ought to be in charge of, such mentally ill person.
4. If such relative or any other person is legally bound to maintain the mentally ill person, the Magistrate may, by order, require the relative or the other person to take proper care of such mentally ill person and where such relative or other person willfully neglects to comply with the said order, he shall be punishable with fine which may extend to two thousand rupees.
5. If there is no person legally bound to maintain the mentally ill person, or if the person legally bound to maintain the mentally ill person refuses or neglects to maintain such person, or if, for any other reason, the Magistrate thinks fit so to do, he may cause the mentally ill person to be produced before him and, without prejudice to any action that may be taken under sub -section (4) , proceed in the manner provided in Sec.24 as if such person had been produced before him under sub-section (3) of Sec. 23.
COMMENT
In case the Magistrate, within the local limits of whose jurisdiction the mentally ill person resides, comes to know that the said mentally ill person is being ill treated, neglected or cruelly treated, he is empowered under this section, to pass orders requiring the relative or other person to take care of such mentally ill person. This section also makes provision for punishment in case of non-compliance of the aforesaid orders.
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C - Further provisions regarding admission and detention
of certain mentally ill persons.
26. Admission as in-patient after inquisition
If any District Court holding an inquisition under Chapter VI regarding any person who is found to be mentally ill is of opinion that it is necessary so to do in the interests of such person, it may ,by order, direct that such person shall be admitted and kept as an in-patient in a psychiatric hospital or psychiatric nursing home and every such order may be varied from time to time or revoked by the District court.
COMMENT
This section provides for admission of mentally ill person as in-patient in a psychiatric hospital or psychiatric nursing home.
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27. Admission and detention of mentally ill prisoner
An order under Sec. 30 of the Prisoners Act, 1900 (3 of 1900) or under Sec. 144 of the Air Force Act, 111950 (45 of 1950), or under Sec. 145 of the Army Act 1950 (46 of 1950), or under Sec. 143 or Sec. 144 of the Navy Act, 1957 (62 of 1957), or under Sec. 330 or Sec. 335 of the Code of Criminal Procedure 1973 ( 2 of 1974), directing the reception of a mentally il prisoner into any psychiatric hospital or psychiatric nursing home, shall be sufficient authority for the admission of such person in such hospital or, as the case may be, such nursing home or any other psychiatric hospital or psychiatric nursing home to which such person may be lawfully transferred for detention therein.
COMMENT
This section provides for admission of mentally ill prisoner into any psychiatric hospital or psychiatric nursing home.
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28. Detention of alleged mentally ill person pending report by medical officer
1. When any person alleged to be a mentally ill person appears or is brought before a Magistrate under Sec. 23 or Sec. 25, the Magistrate may, by order in writing, authorise the detention of the alleged mentally ill person under proper medical custody in an observation ward of a general hospital or general nursing home or psychiatric hospital of psychiatric nursing home or in any other suitable place for such period not exceeding ten days as the Magistrate may consider necessary for enabling any medical officer to determine whether a medical certificate in respect of that alleged mentally ill person may properly be given under Cl. (a) of sub-section (2) of Sec.24.
2. The Magistrate may, from time to time, for the purpose mentioned in sub-section (1), by order in writing, authorise such further detention of the alleged mentally ill person for periods not exceeding 10 day at a time as he may deem necessary:
Provided that no person shall be authorised to be detained under this sub-section for a continuous period exceeding thirty days in the aggregate.
COMMENT
This section provides for detention of the alleged mentally ill person under proper medical custody pending receipt of medical report. The period of such detention should not exceed a period of ten days at a time and thirty days in the aggregate.
SCOPE OF THE SECTION - The provision which the Magistrate could probably have thought of to justify his action is Sec. 16 of the Lunacy Act (since repealed by this Act). No other provision gives him the power of detention before adjudging a person as lunatic. Section 16(1) confers jurisdiction on a Magistrate to deal with a person who is alleged to be lunatic when he is brought before the Magistrate under the provisions of Sec. 13 of Sec.15. Such a person can be detained by an order of the Magistrate, "for such time not exceeding 10 days as may be, in his opinion necessary to enable the medical officer to determine whether such alleged lunatic is a person in respect of whom a medical certificate may be properly given". The proviso to sub-section (2) imposes a ban on the Magistrate against extension of the period of detention beyond a total period of 30 days1.
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29. Detention of mentally ill person pending his removal to psychiatric hospital or psychiatric nursing home
Whenever any reception order is made by a Magistrate under Sec. 22, Sec. 234 or Sec. 25, he may by reasons to be recorded in writing, direct that he mentally ill person in respect of whom the order is made may be detained for such period not exceeding thirty days in such place as he may deem appropriate. Pending the removal of such person to a psychiatric hospital or psychiatric nursing home.
COMMENT
This section empowers a Magistrate to issue directions for detention of mentally ill person for a period not exceeding thirty days in an appropriate place, pending this removal to psychiatric hospital or psychiatric nursing home.
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D - Miscellaneous provision in relation to orders under
this chapter.
30. Time and manner of medical examination of mentally ill person
Where any other order under this Chapter is required to be made on the basis of a medical certificate, such order shall not be made unless the person who has signed the medical certificate, or where such order is required to be made on the basis of two medical certificates, the signatory of the respective certificates, has certified that he has personally examined the alleged mentally ill person -
1. in the case of an order made on an application, not earlier than ten clear days immediately before the date on which such application is made; and
2. in any other case, not earlier than ten clear days immediately before the date of such order;
Provided that where a reception order is required to be made on the basis of two medical certificates such order shall not be made unless the certificates show that the signatory of each certificate examined the alleged mentally ill person independently of the signatory of the other certificate.
COMMENT
This section prescribes the time and manner of medical examination of mentally ill person.
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31. Authority for reception order
A reception order made under this Chapter shall be sufficient authority -
1. for the applicant or any person authorised by him, or
2. in the case of a reception order made otherwise than on an application, for the person authorised so to do by the authority making this order.
To take the mentally ill person to the place mentioned in such order or for his admission and treatment as an in-patient in the psychiatric hospital or psychiatric nursing home specified in the order or, as the case may be, for his admission and detention, therein or in any psychiatric hospital or psychiatric nursing home to which he may be removed in accordance with the provisions of this Act, and the medical officer-in-charge shall be bound to comply with such order:
Provided that in any case where the medical officer-in-charge finds accommodation in the psychiatric hospital or psychiatric nursing home inadequate,, he shall, after according admission, intimate that fact to the Magistrate or the District Court which passed the order and thereupon the Magistrate or the District Court, as the case may be, shall pass such order as he or it may deem fit:
Provided further that every reception order shall cease to have effect -
1. on the expiry of thirty days from the date on which it was made, unless within that period, the mentally ill person has been admitted to the place mentioned therein, and
2. on the discharge, in accordance with the provisions of this Act, of the mentally ill person.
COMMENT
This section makes provision for sufficient authority for a reception order. It shall however cease to have effect on the expiry of thirty days from the date of the order or on the discharge of the mentally ill person.
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32. Copy of reception order to be sent to medical officer-in-charge
Every Magistrate or District Court making a reception order shall forthwith send a certified copy thereof together with copies of the requisite medical certificates and the statement of particulars to the medical officer in charge of the psychiatric hospital or psychiatric nursing home to which the mentally ill person is to be admitted.
COMMENT
This section makes provision for supply of certified copy of reception order to medical officer in charge of psychiatric hospital or psychiatric nursing home.
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33. Restriction as to psychiatric hospitals and psychiatric nursing homes into which reception order may direct admission
No Magistrate or District Court shall pass a reception order for the admission as an in-patient to, or for the detention of any mentally ill person, as an in-patient to, or for the detention of any mentally ill person, in any psychiatric hospital or psychiatric nursing home outside the State in which the Magistrate or the District Court exercises jurisdiction:
Provided that an order for admission or detention into or in a psychiatric hospital or psychiatric nursing home situated in any other State may be passed if the State Government has by general or special order and after obtaining the consent of the Government of such other State, authorised the Magistrate or the District Court in that behalf.
COMMENT
This section imposes restriction to the passage of reception order for admission or detention of any mentally ill person, as an in-patient in any psychiatric hospital or psychiatric nursing home outside the State, unless the State Government has by general or special order authorised for the same.
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34. Amendment of order or document
If, after the admission of any mentally ill person to any psychiatric hospital or psychiatric nursing home under a reception order, it appears that the order under which he was admitted or detained or any of the documents on the basis of which such order was made defective or incorrect, the same may, at any time thereafter be amended with the permission of the Magistrate or the District Court, by the person or persons who signed the same and upon such amendment being made, the order shall have effect and shall be deemed always to have had effect as if it had been originally made as so amended, or, as the case be, the documents upon which it was made had been originally furnished, also amended.
COMMENT
This section makes provision for amendment of order or document in case it is detected that any of the documents on the basis of which such order was made is defective or incorrect.
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35. Power to appoint substitute for person upon whose application reception order has been made
1. Subject to the provisions of this section the Magistrate may, by order in writing (hereinafter referred to the orders of substitution), transfer the duties and responsibilities under this Act, of the person on whose application a reception order was made, to any other person who is willing to undertake the same and such other person shall thereupon be deemed for the purposes of this Act to be the person on whose application the reception order was made and all references in this Act to the latter person shall be construed accordingly:
Provided that no such order of substitution shall absolve the person upon whose application the reception order was made or, if he is dead, his legal representatives, from any liability incurred before the date of the order of substitution.
2. Before making any order of substitution, the Magistrate shall send a notice to the person on whose application the reception order was made if he is alive, and to any relative of the mentally ill person who, in the opinion of the Magistrate, shall have notice.
3. The notice under sub-section (2) shall specify the name of the person in whose favour it is proposed to make the order of substitution and the date (which shall be not less than twenty days from the date of issue of the notice) on which objections, if any, to the making of such order shall be considered.
4. On the date specified under sub-section (3), or on any subsequent date to which the proceedings may be adjourned, the Magistrate shall consider any objection made by any person to whom notice was sent or by any other relative of the mentally ill person, and shall receive all such evidence as may be produced by or on behalf of any such person or relative and after making such inquiry as the Magistrate may deem fit make or refrain from making the order of substitution:
Provided that, if the person on whose application the reception order was made is dead and any other person is willing and is, in the opinion of the Magistrate, fit to undertake the duties and responsibilities under this Act of the former person, the Magistrate shall, subject to the provisions contained in the proviso to sub-section (1), make an order to that effect.
5. In making any substitution order under this section, the Magistrate shall give preference to the person who is the nearest relative of the mentally ill person, unless, for reasons to be recorded in writing the Magistrate considers that giving such preference will not be in the interests of the mentally ill person.
6. The Magistrate may make such order for the payment of the costs of an inquiry under this section by any person or from out of the estate of the mentally ill person as he thinks fit.
7. Any notice under sub-section (2) may be sent by post to the last known address of the person for whom it is intended.
COMMENT
This section empowers Magistrate to appoint substitute for a person upon whose application reception order has been made.
Proviso - A proviso to a section is not independent of the section calling for independent of the section calling for independent consideration or construction detached from the construction to be placed on the main section as it is merely subsidiary to the main section and is to be construed in the light of the section itself1.
It is settled that a proviso cannot expand or limit the clear meaning of the main provision2.
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36. Officers competent to exercise powers and discharge function of Magistrate under certain sections
In any area where a Commissioner of Police has been appointed, all the powers and functions of the Magistrate under Secs. 23,24,25 and 28 may be exercised or discharged by the Commissioner of Police and all the functions of an officer-in-charge of a police station under this Act may be discharged by any police officer not below the rank of an Inspector.
COMMENT
Under the provisions of this section all the powers and functions of the Magistrate under Secs. 23,24,25 and 28 may be exercised or discharged by the Commissioner of Police in the area where the said office is appointed.
COMMISSIONER, IF INCLUDES "DEPUTY" OR "ASSISTANT" - It is clear that in the present case the Deputy Commissioner who acted in the matter had no power under Sec.17 of the Lunacy Act (since repealed by this Act). In any case, no such power could be conferred upon him even by the State Government. Because Lunacy Act, (since repealed by this Act) has not reognized conferment of such power upon any Deputy or Assistant to the Commissioner1.
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Chapter V - Inspection, Discharge, Leave of Absence
And
Removal Of Mentally Ill Persons
PART I
INSPECTION
37.Appointment of visitors
1. The State Government or the Central Government, as the case may be, shall appoint for every psychiatric hospital and every psychiatric nursing home, not less than five visitors, of whom at least one shall be a medical officer, preferably a psychiatrist and two social workers.
2. The head of the Medical Services of the State or his nominee preferably a psychiatrist be an ex officio visitor of all the psychiatrist hospital and psychiatric nursing homes in the State.
3. The qualifications of persons to be appointed as visitors under sub-section (1) and the terms and conditions of their appointment shall be such as may be prescribed.
COMMENT
This section makes provision for appointment of visitors for every psychiatric hospital/nursing home. The number of visitors should not be less than five, of whom at least one should be a psychiatrist or at least a medical officer and two social workers.
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38. Monthly inspection by visitors
Not less than three visitors shall at least once in every month, make a joint inspection of every part of the psychiatric hospital or psychiatric nursing home in respect of which they have been appointed and examine every minor admitted as a voluntary patient under Sec 17 and, as far as circumstances will permit, every other mentally ill person admitted therein and the order for the admission of and subsequent to the joint inspection immediately preceding, and shall enter in a book kept for that purpose such remarks as they deem appropriate in regard to the management and condition of such hospital or nursing home and of the in-patient thereof:
Provided that the visitors shall not be entitled to inspect any personal records of an in-patient which in the opinion of the medical officer-in-charge are confidential in nature:
Provided further that if any of the visitors does not participate in the joint inspection of the psychiatric hospital or psychiatric nursing home in respect of which he was appointed a visitor for three consecutive months, he shall cease to hold office as such visitor.
COMMENT
This section provides for monthly joint inspection by not less than three visitors of the psychiatric hospital/nursing home, for which they have been appointed, and for recording their remarks in respect of the management and condition of such hospital or nursing home and of the in-patients thereof visitors are not empowered to inspect personal records of in-patients.
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39. Inspection of mentally ill prisoners
1. Notwithstanding anything contained in Sec. 38, where any person is detained under the provisions of Sec. 144 of the Air Force Act, 1950 (45 of 19150), or Sec. 145 of the Army Act, 1950 (46 of 1950), or Sec. 143 or Sec. 144 of the Navy Act 1957 (62 of 19957) or Sec. 330 or Sec. 335 of the Code of Criminal Procedure 1973 ( 2 of 1974) -
1. the Inspector-General of Prisons, where such person is detained in a jail ; and
2. all or any three of the visitors including at least one social worker appointed under sub-section (1) of Sec. 37, where such person is detained, in a psychiatric hospital or psychiatric nursing home. Shall, once in every three months visit such person at the place where he is detained, in order to assess the state of mind of such person and make a report thereon to the authority under whose order such person is so detained.
2. The State Government may empower any of its officers to discharge all or any of the functions of the Inspector-General of Prisons under Sub-section (1).
3. The medical officer in charge of a psychiatric hospital or psychiatric nursing home wherein any person referred to in sub-section (1) is detained, shall once in every six months, make a special report regarding the mental and physical condition of such person to the authority under whose order such person is detained.
4. Every person who is detained in jail under the provisions of various Acts referred to in sub-section (1) shall be visited at least once in every three months by a psychiatrist, or where a psychiatrist is not available, by a medical officer empowered by the state Government in this behalf and such psychiatrist or, as the case may be, such medical officer shall make a special report regarding the mental and physical condition of such person to the authority under whose order such person is detained.
COMMENT
This section makes provision for inspection of mentally ill prisoners.
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PART II
DISCHARGE
40. Order of discharge by medical officer in charge
Notwithstanding anything contained in Chapter IV, the medical officer-in-charge of a psychiatric hospital or psychiatric nursing home may, on the recommendation of two medical practitioners one of whom shall preferably be a psychiatrist, by order in writing, direct the discharge of any person other than a voluntary patient detained or undergoing treatment therein as an in-patient, and such person shall thereupon be discharged from the psychiatric hospital or psychiatric nursing home:
Provided that no order under this sub-section shall be made in respect of a mentally ill prisoner otherwise than as provided in Sec.30 of the Prisoner Act, 1900 (3 of 1900),or in any other relevant law.
(2)Where any order of discharge is made under sub-section (1)in respect of a person who had been detained or is undergoing treatment as in-patient in pursuance of an order off any authority, a copy of such hospital/nursing home.
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41. Discharge of mentally ill persons on application
Any person detained in a psychiatric hospital or psychiatric nursing home under an order and in pursuance of an application made under this Act, shall be discharged on an application made in that behalf to the medical officer in charge by the person on whose application the order was made;
Provided that no person shall be discharged under this section if the medical officer in charge certifies in writing that the person is dangerous and unfit to be at large.
COMMENT
This section lays down that mentally ill persons be discharged on application, from a psychiatric hospital/nursing home and that no person be discharged unless the medical officer certifies for the same.
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42. Order of discharge on the undertaking of relatives or friends, etc. for due care of mentally ill persons
1. Where any relative of friend of a mentally ill person detained in a psychiatric hospital or psychiatric nursing home under Sec. 22, Sec. 24 or Sec. 25 desires that such person shall be delivered over to his care and custody, he may make an application to the medical officer-in-charge who shall forward it together with his remarks thereon to the authority under whose orders the mentally ill person is detained.
2. Where an application is received under sub-section (1), the authority shall, on such relative or friend furnishing a bond, with or without sureties, for such amounts as such authority may specify in this behalf, undertaking to take proper care of such mentally ill person, and ensuring that the mentally ill person shall be prevented from causing injury to himself or to others, make an order of discharge and thereupon the mentally ill person shall be discharged.
COMMENT
The section makes provision for discharge of mentally ill person from the psychiatric hospital or psychiatric nursing home on the undertaking of relatives or friends for due care of such mentally ill person.
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43. Discharge of person on his request
1. Any person (not being a mentally ill prisoner) detained in pursuance of an order made under this Act who feels that he has recovered from his mental illness, may make an application to the Magistrate, where necessary under the provisions of this Act, for his discharge from the psychiatric hospital or psychiatric nursing home.
2. An application made under sub-section (1) shall be supported by a certificate either from the medical officer incharge of the psychiatric hospital or psychiatric nursing home where the applicant is undergoing treatment or from a psychiatrist;
3. The Magistrate may, after making such inquiry as he may deem fit, pass an order discharging the person or dismissing the application.
COMMENT
This section makes provision for the discharge of mentally ill person from psychiatric hospital or psychiatric nursing home, on his request. This section does not apply to a mentally ill prisoner.
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44. Discharge of person subsequently found on inquisition to be of sound mind
If any person detained in a psychiatric hospital or psychiatric nursing home in pursuance of a reception order made under this Act is subsequently found, on an inquisition held in accordance with the provisions of Chapter VI, to be of sound mind or capable of taking care of himself and managing his affairs, the medical officer-in-charge shall forthwith, on the production of a copy of such finding duly certified by the District Court, discharge such person from such hospital or nursing home.
COMMENT
This section deals with the matter relating to discharge of person, detained in a psychiatric hospital or psychiatric nursing home, subsequently found to be of sound mind.
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PART III
LEAVE OF ABSENCE
45. Leave of absence
1. An application for leave of absence on behalf of any mentally ill person (not being a mentally ill prisoner) undergoing treatment as an in-patient in any psychiatric hospital or psychiatric nursing home may be made to the medical officer-inc-charge, -
1. in the case of a person who was admitted on the application of the husband or wife, by the husband or wife of such mentally ill person, or where by reason of mental or physical illness, absence from India or otherwise, the husband or wife is not in a position to make such application, by any other relative of the mentally ill person duly authorised by the husband or wife, or
2. in the case of any other person, by the person on whose application the mentally ill person was admitted.
Provided that no application under this sub-section shall be made by a person who has not attained the age of majority.
2. Every application under sub-section (1) shall be accompanied by a bond, with or without sureties for such amount as the medical officer-in-charge may specify, undertaking -
1. to take proper care of the mentally ill person,
2. to prevent the mentally ill person from causing injury to himself or to others, and
3. to bring back the mentally ill person to the psychiatric hospital, or , as the case may be, psychiatric nursing home, on the expiry of the period of leave.
3. On receipt of an application under sub -section (1), the medical officers-in-charge may grant leave of absence to the mentally ill persons for such period as the medical officers-in-charge may deem necessary and subject to such condition as may, in the interests of the protection of others, be specified in the order :
Provided that the total number of days for which leave of absence may be granted to a patient under this sub-section shall not exceed sixty days.
4. Where the mentally ill persons is not brought back to the psychiatric hospital or psychiatric nursing home on the expiry of the leave granted to him under this section the medical officer-in-charge shall forthwith report that fact to the Magistrate within the local limits of whose jurisdiction such hospital or nursing home is situate and the Magistrate may, after making such inquiry as he may deem fit, make an order directing him to be brought back to the psychiatric hospital or psychiatric nursing home, as the case may be.
5. Nothing contained in this section shall apply to a voluntary patient referred to in Sec. 15 or Sec. 16 and the provisions of Sec.18 shall apply to him.
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46. Grant of leave of absence by Magistrate
1. Where the medical officer-in-charge refuses to grant leave of absence to a mentally ill person under Sec. 45, the applicant may apply to the Magistrate within the local limits of whose jurisdiction the psychiatric hospital or psychiatric nursing home wherein the mentally ill person is detained is situate, for the grant of leave of absence to the mentally ill person and the Magistrate may if he is satisfied that it is necessary so to do, and on the applicant entering into a bond in accordance with the provisions of sub-section (2), by order grant leave of absence to the mentally ill person for such period and subject to such conditions as may be specified in the order.
2. Every bond referred to in sub-section (1) shall be with or without sureties and for such amount as the Magistrate may decide and shall contain the undertaking referred to in sub-section (2) of sect.45.
3. The Magistrate shall forward a copy of the order to the medical officer-in-charge and on receipt of such order the medical officer-in-charge shall entrust the mentally ill person to the person on whose application the leave of absence was granted under this section.
COMMENT
Sections 45 and 46 deal with the matter relating to grant of leave of absence.Under Sec.. 45 the medical officer is empowered to grant leave of absence. In case he refuses to grant leave of absence to a mentally ill person, Magistrate is empowered under Sec. 46 to grant leave of absence.
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PART IV
REMOVAL
47. Removal of mentally ill person from one psychiatric hospital or psychiatric nursing home to any other psychiatric hospital or psychiatric nursing home
1. Any mentally ill person other than a voluntary patient referred to in Sec. 15 or Sec. 16 may, subject to any general or special order of the State Government, be removed from any psychiatric hospital or psychiatric nursing home to any other psychiatric hospital or psychiatric nursing home within the State, or to any other psychiatric hospital or psychiatric nursing home in any other State with the consent of the Government of that other State:
Provided that no mentally ill person admitted to a psychiatric hospital or psychiatric nursing home under an order made in pursuance of an application made under the Act shall be so removed unless intimation thereof has been given to the applicant.
2. The State Government may make such general or special order as it thinks fit directing the removal of any mentally ill prisoner from the place where he is for the time being detained, to any psychiatric hospital, psychiatric nursing home, jail or other place of safe custody in the State or to any psychiatric hospital, psychiatric nursing home, jail or other place of safe custody in any other State with the consent of the Government of that other State.
COMMENT
This section permits removal of any mentally ill person from one psychiatric hospital or psychiatric nursing home to another within the State or even to any other State with the consent of the Government of that other State.
The provisions of this section however does not apply to a voluntary patient.
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48. Admission, detention and retaking in certain cases
Every person brought into a psychiatric hospital or psychiatric nursing home under any order made under this Act, may be detained or, as the case may be, admitted as an in-patient therein until he is removed or is discharged under any law, and in case of his escape from such hospital or nursing home he may, by virtue of such order, be retaken by any police officer or by the medical officer-in-charge or any officer or servant of such hospital or nursing home, or by any other person authorised in that behalf by the medical officer-in-charge and conveyed to, and received and detained or, as the case may be , kept as an in-patient in such hospital or nursing home;
Provided that in the case of a mentally ill person (not being a mentally ill prisoner) the power to retake as aforesaid under this section shall not be exercisable after the expiry of a period of one month from the date of his escape.
COMMENT
This section deals with the matter relating to admission, detention or retaking of certain mentally ill persons. This section does not apply to a mentally ill prisoner.
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49. Appeal from orders of Magistrate
Any person aggrieved by any order of a Magistrate, passed under any of the foregoing provisions may, within sixty days from the date of the order, appeal against that order to the District Court within the local limits of whose jurisdiction the Magistrate exercised the powers, and decision of the District Court on such appeal shall be final.
COMMENT
This section empowers any person aggrieved by any order of a Magistrate to appeal against it to the District Court.
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Chapter VI - Judicial Inquisition Regarding Alleged Mentally Ill Person
Possessing Property, Custody Of His Person
And
Management Of His Property
50. Application for judicial inquisition
1. Where an alleged mentally ill person is possessed of property, an application for holding an inquisition into the mental condition of such person may be made either -
1. by any of his relatives, or
2. by a public curator appointed under the Indian Succession Act, 1925 (39 of 1925) or
3. by the Advocate-General of the State in which the alleged mentally ill person resides, or
4. where the property of the alleged mentally ill person comprises land or interest in land, or where the property or part thereof is of such a nature as can lawfully be entrusted for management to a Court of Wards established under any law for the time being in force in the State, by the Collector of the District in which such land is situate, to the District Court within the local limits of whose jurisdiction the alleged mentally ill person resides.
2. On receipt of an application under sub-section (1), the District Court shall, by personal service or by such other mode of service as it may deem fit, serve a notice on the alleged mentally ill person to attend at such place and at such time as may be specified in the notice or shall, in like manner, serve a notice on the person having the custody of the alleged mentally person to produce such person at the said place and at the said time, for being examined by the District Court or by any other person from whom the District Court may call for a report concerning the mentally ill person:
Provided that, if the alleged mentally ill person is a woman, who according to the custom prevailing in the area where she resides or according to the religion to which she belongs, ought not to be compelled to appear in public, the District Court may cause her to be examined by issuing a commission as provided in the Code of Civil Procedure, 1908 ( 5 of 1908).
3. A copy of the notice under sub-section (2) shall also be served upon the applicant and upon any relative of the alleged mentally ill person or other person who, in the opinion of the District Court, shall have notice of judicial inquisition to be held by it.
4. For the purpose of holding the inquisition applied for, the District Court may appoint two or more persons to act as assessors.
COMMENTS
JURISDICTION - The Lunacy (Supreme Courts) Act, 1958, gives power to those Courts to direct an inquiry as to "any person subject to the jurisdiction of the Court". The preamble of the Lunacy (Districts Courts) Act of the same year states that it is expedient to make better provisions for the case of the states of lunatics "not subject to the jurisdiction of the Supreme Courts of adJudicature". In 1981 the Allahabad high court decided that, under its own letters patent, it had no original jurisdiction in respect of the persons and estates of lunatics who were natives of India. In the course of that case, the Court ascertained from the Registrar of the original side of the Calcutta High Court that at that date its powers in the matters of lunacy as the successor and inheritor of the powers of the old Supreme Court were, as regards natives of India, only exercised within the limits of the town of Calcutta itself, and that in other respects the procedure directed by the Lunacy (District Court) Act, 1958,was followed in Lower Bengal. The Court expressed the view that this practice was correct. The Lunacy Act, 19121 repealed both the Acts of 1958, but made no alteration in the law with regard to the matter now under consideration.
For a person to come under that chapter he must be not subject to the jurisdiction of a High Court, and must be resident within the jurisdiction of a District Court. The question of jurisdiction was considered in Anila Bala Chowdhurani V. Dhirendra Nath Saha2 where it was held that the jurisdiction of the Pabna District Court was ousted because the alleged lunatic (an Indian) resided both at Pabna and at Calcutta, but it is clear from that case that, but for his residence at Calcutta, the Pabna District Court would have had jurisdiction and the original side of the Calcutta High Court would not. In in re Taruchandra Ghosh,3 the Court held that, under Cl. 17 of the Charter, the Court had power to appoint a guardian of an Indian infant resident outside the original jurisdiction. The order was made ex parte on the father's application, it being stated there was no opposition.The attention of the Court was not drawn to 13 Geo. 3, c. 63, nor to the cases referred to above. Moreover, the language of Cl.25 of the Charter of 1774 as regards infants, differs from its language as regards lunatics. The original side of the Calcutta High Court has no jurisdiction to direct an inquisition or appoint a guardian of person or property in the case of an Indian not resident in Calcutta4.
WHAT HAS TO BE FOUND UNDER THE ACT - What has to be found under the Act is that the person is of unsound mind and that the unsoundness of mind is such as to make him incapable of managing his affairs. A person who is incapable of managing his affairs is not necessarily of unsound mind and a person of unsound mind may not be incapable of managing his affairs. The Court must hold that both unsoundness of mind and incapacity to manage his affairs are present and that the latter is due to the former5.
DUTY OF THE COURT - It has, at the very outset to be realized that an order declaring a person to be of unsound mind and incapable on that account of managing his affairs is an order of a very serious character. It has the effect of disqualifying him from using his own property in the manner he desires and placing a drastic check on his rights and privileges which as a normal individual, he would be entitled to enjoy. In Teka Devi V. Gopal Das6, it was observed that: b.
"It is, therefore, the duty of the Court before proceeding further, the determine judicially whether the person alleged to be incapable of managing himself or his affairs, is really a lunatic in this sense. Secondly, it must be remembered that this finding has got very far-reaching consequences and must be given after very great care and deliberation. It may have the immediate effect of putting a human being Being under restraint. It might deprive him for a time, or forever of the possession and management of his property. It will be prima facie evidence of his lunacy, and may be read in proof of it in other proceedings. The Legislature has, therefore, laid down an elaborate procedure for conducting an enquiry into this matter, and this procedure must be strictly followed. The Court cannot and ought not to deal lightheartedely with this important question, and it should not consider itself relieved of its responsibility by the mere circumstance that some or all the relatives of the person concerned have declared that he is lunatic".
The above is undoubtedly an accurate statement of the policy underlying the precaution enjoined by the Legislature in the various provisions of the Act as a preliminary condition to the final exercise of jurisdiction by the Court in declaring a person as a lunatic1.
The smallest attention to the words of the Indian Lunacy Act2 whether they be the words of Sec. 62 or the words of Sec. 38 shows this that the Legislature appreciates that to have an inquisition into the state of health, the state of mind, the state of property and general capacity of a person is a thing which affects that person so prejudicially that it ought not to be taken except it be first ordered upon a careful consideration of evidence3. It was said in a case reported in Muhammad Yaqub V. Nazir Ahmad4: "It is true that nothing is contained in the Act itself to direct or guide a Judge as to how he shall consider applications for an inquisition and probably no rules exist for dealing with the matter; but ordinary commonsense would appear to dictate to a tribunal before whom such an application comes that care should be exercised in a painful matter of this kind, namely, an enquiry into a man's or woman's state of mind; specially in the case of people in conformable circumstances who merely wish to lead a quiet life care should be exercised that they are not suddenly flung without sufficient reason into an elaborate inquisition which after all is nothing more or less than a trial involving sometimes the history of a person's life back for many years, medical evidence, and all sorts of family witnesses".
INQUISITION - The Lunacy Act does not contain any procedure or permit any procedure by which a man today can be declared to be a lunatic ten years ago in the past5.
JURISDICTION OF THE LUNACY COURT - The jurisdiction of the Lunacy Court depends on normal residence of the alleged lunatic and not on his temporary residence except in the cases of the High Courts of Calcutta, Madras and Bombay where different rules are applicable under the Charters and Letter Patent. The principles of residence are clearly laid down by a Bench of three learned Judges consisting of Sir Ashutosh Mookerjee, Acting Chief Justice, and Fletcher and Richardson, JJ. In Anila Bala Choudhurani V. Dhirendra Natha Saha1. That decision is an authority on the proposition that Sec. 38 of the Lunacy Act does not define the test to be applied to determine whether a person is or is not subject to the jurisdiction of the High Court for the purpose of judicial inquisition as to lunacy. But the proceedings are directed primarily against the person and only secondarily against his property. Such authority over the person may, unless otherwise directed by statute, be ordinarily exercised in the case of residents within the local limits of the jurisdiction of the Court. No doubt it may also be exercised over non-residents, if there is statutory provision to that effect.
The third proposition laid down by this decision is that before a District Court can institute inquisition of a person possessed of property and alleged to be a lunatic it must be established not merely that such person is residing within the jurisdiction of that Court but also that he is not subject to the jurisdiction of any of the High Courts mentioned in Sec. 37 of the Lunacy Act. Therefore, in a case where an alleged lunatic is subject to the jurisdiction of a High Court under Sec. 37, the District Court has no jurisdiction under Sec. 62, even though the person may reside within the local limits of the jurisdiction of the District Court. In other words, the jurisdiction of the High Court and District Court are not concurrent, but the jurisdiction of the High Court excludes that of the District Court; although if the alleged lunatic resides in two districts, the jurisdiction of the two Courts are concurrent and not mutually exclusive2.
PROOF OF INSANITY- The question of insanity requires a most careful examination and it is difficult to think that bare assertion by witnesses unsupported by any details of the cause, the course and the treatment of the malady ought to be accepted as satisfactory proof3.
NOTICE - DIRECTING AN INQUISITION - The notice contemplated by Sec. 40 is a notice to be drawn up after there has been an order directing an inquisition. It is notice of such order and of the time and place at which the inquisition is to be held. It is notice of the petition. The notice prescribed is a notice that the Court has determined to hold an inquisition. So far as the alleged lunatic concerned, it is a most important notice. It is a notice which tells him that he is in such a serious position that Court has determined to enquire into his state of mind and that his liberty and his right to manage his own affairs is now in peril by virtue of a considered judgement of a District Judge. There is nothing in the Lunacy Act about general notices. There is a definite provision in the Lunacy Act for notice to he lunatics and to such relatives or other persons as the District Judge may think it desirable to give notice to. Under the Guardians and Wards Act the provision for notice to the minor is a provision about general notice, that is to say, the notice has to be affixed in the Court-house and a copy has to be affixed to the permanent place of residence of the minor4.
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51. Issues on which finding should be given by District Court after inquisition
On completion of the inquisition, the District Court shall record its findings on -
1. Whether the alleged mentally ill person is in fact mentally ill or not, and
2. Where such person is mentally ill, whether he is incapable of taking care of himself and managing his property, or incapable of managing his property only.
COMMENT
This section empowers District Court to record its findings on certain issues.
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52. Provision for appointing guardian of mentally ill person and for manager of property
1. Where the District Court records a finding that the alleged mentally ill person is in fact mentally ill and is incapable of taking care of himself and of managing his property, it shall make an order for the appointment of a guarding under Sec. 53 to take care of his person and of a manager under Sec. 54 for the management of his property.
2. Where the District Court records a finding that the alleged mentally ill person is in fact mentally ill and is incapable of managing his property but capable of taking care of himself, it shall make an order under Sec.54 regarding the management of his property.
3. Where the District Court records a finding that the alleged mentally ill person is not mentally ill, it shall dismiss the application.
4. Where the District Court deems fit, it may appoint under sub-section (1) the same person to be the guardian and manager.
COMMENT
This section makes provision for appointment of guardian of mentally ill person and for manager or property.
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53. Appointment of guardian of mentally ill person
1. Where the mentally ill person is incapable of taking care of himself, the District Court or, where a direction has been issued under sub-section (2) of Sec.54, the Collector of the District, may appoint any suitable person to be his guardian.
2. In the discharge of his functions under sub-section (1), the Collector shall be subject to the supervision and control of the State Government or of any authority appointed by it in that behalf
COMMENT
This section empowers the District Court or the Collector to appoint guardian of mentally ill person.
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54. Appointment of manager for management of property of mentally ill person
1. Where the property of the mentally ill person who is incapable of managing it is such as can be taken charge of by a Court of Wards under any law for the time being in force, the District Court shall authorise the Court of Wards to take charge of such property, and thereupon notwithstanding anything contained in such law, the Court of Wards shall assume the management of such property in accordance with that law.
2. Where the property of the mentally ill person consists in whole or in part of land or of any interest in land which cannot be taken charge of by the Court of Wards, the District Court may, after obtaining the consent of the Collector of the District in which the land is situate, direct the Collector to take charge of the person and such part of the property or interest therein of the mentally ill person as cannot be taken charge of by the Court of Wards.
3. Where the management of the property of the mentally ill person cannot be entrusted to the Court of Wards or to the Collector under sub-section (1) or sub-Section (2), as the case may be, the District Court shall appoint any suitable person to be the manager of such property.
COMMENT
APPOINTMENT OF MANAGER - There is no prohibition in the Gwalior law and the Indian Lunacy Act (since repealed by this Act), against appointment or re-appointment of persons already acting as managers of the estate of a person during his minority who later on became a lunatic/mentally ill person either before or after attainment of majority1.
Since the vendor did not obtain any order from the competent Court under the Lunacy Act (since repealed by this Act), to have him appointed as Manager of the joint family to alienate the property, the sale is per se illegal. The sale, therefore, appears to be to defeat the statutory right of the appellant2.
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55. Appointment of manager by Collector
Where the property of a mentally ill person has been entrusted to the Collector by the District Court under sub-section (2) of Sec. 54, he may, subject to the control of the State Government or of any authority appointed by it in that behalf, appoint any suitable person for the management of the property of the mentally ill person.
COMMENT
This section empowers the Collector to appoint manager of the property of a mentally ill person.
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56. Manager of property to execute bond
Every person who is appointed as the manager of the property of a mentally ill person by the District Court or by the Collector shall, if so required by the appointing authority, enter into a bond for such sum, in such form and with such sureties as that authority may specify, to account for all receipts from the property of the mentally ill person.
COMMENT
This section requires the manager of property to execute bond.
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57. Appointment and remuneration of guardians and managers
1. No person, who is the legal heir of a mentally ill person shall be appointed under Sec. 53, 54 or 55 to be the guardian of such mentally ill person or, as the case may be, the manager of his property unless the District Court or, as the case may be, the Collector, for reasons to be recorded in writing, considers that such appointment is for the benefit of the mentally ill person.
2. The guardian of a mentally ill person or the manager of the property or both appointed under this Act shall be paid, from out of the property of the mentally ill person, such allowance as the appointing authority may determine.
COMMENT
This section deals with appointment and remuneration of guardians and managers.
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58. Duties of guardian and manager
1. Every person appointed as a guardian of a mentally ill person or manager of his property, or of both, under this Act shall have the care of the mentally ill person or his property or of both , and be responsible for the maintenance of the mentally ill person and of such members of his family as are dependent on him.
2. Where the person appointed as guardian of a mentally ill person is different from the person appointed as the manager of his property, the manager of his property shall pay to the guardian of the mentally ill person such allowance as may be fixed by the authority appointing the guardian for the maintenance of the mentally ill person and of such members of his family as are dependent on him.
COMMENT
"FAMILY" - A married daughter living with her husband and separate from her father is not entitled to a separate maintenance being allowed to her against her father's estate, when that estate is taken charge of by the Court under the provisions of Lunatic Act (since repealed by this Act).
The word "family" includes persons living with the lunatic/mentally ill person as members of his family, that is to say, persons actually depending upon him for their maintenance1.
In the instant case, under the relevant Medical Rules, the father was a member of the family of his son and was wholly dependent on him and the 2nd respondent was thus fully entitled to reimbursement for the expenses incurred on the treatment of his father and other travelling expenses2.
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59. Powers of manager
1. Every manager under this Act shall, subject to the provisions of this Act, exercise the same powers in regard to the management of the property of the mentally ill person in respect of which he is appointed as manager, as the mentally ill person would have exercised as owner of the property had he not been mentally ill and shall realise all claims due to the estate of the mentally ill person and pay all debts and discharge all liabilities legally due from that estate:
Provided that the manager shall not mortgage, create any charge on, or , transfer by sale, gift, exchange or otherwise, any immoveable property of the mentally ill person or lease out any such property for a period exceeding five years, unless he obtains the permission of the District Court in that behalf.
2. The District Court may, on an application made by the manager, grant him permission to mortgage,. Create a charge on, or, transfer by sale, gift, exchange or otherwise, any immoveable property of the mentally ill person or to lease out any such property for a period exceeding five years, subject to such conditions or restrictions as that Court may think fit to impose.
3. The District Court shall cause notice of every application for permission to be served on any relative or friend of the mentally ill person and after considering objections, if any, received from the relative or friend and after making such inquiries as it may deem necessary, grant or refuse permission having regard to the interests of the mentally ill person.
COMMENT
A manager is empowered to exercise the same powers in regard to the management of the property of the mentally ill person as the mentally ill person would have exercised as owner of the property had he not been ill.
The manager shall, however, not mortgage, create any charge on, or, transfer by sale, gift etc. any immoveable property without the prior permission of the District Court.
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60. Manager to furnish inventory and annual accounts
1. Every manager appointed under this Act shall, within a period of six months from the date of his appointment, deliver to the authority, which appointed him, an inventory of the immoveable property belonging to the mentally ill person and of all assets and other moveable property received on behalf of the mentally ill person, together with a statement of all claims due to and all debts and liabilities due by, such mentally ill person.
2. Every such manager shall also furnish to the said appointing authority within a period of three months of the close of every financial year, an account of the property and assets in his charge, the sums received and disbursed on account of the mentally ill person and the balance remaining with him.
COMMENT
Under this section manager has to furnish inventory and annual accounts in respect of the property of the mentally ill person to the appointing authority.
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61. Manager's power to execute conveyances under orders of District Court
Every manager appointed under this Act, may, in the name and on behalf of the mentally ill person -
1. execute all such conveyance and instruments of transfers by way of sale, mortgage or otherwise of property of the mentally ill person as may be permitted by the District Court; and
2. Subject to the orders of the District Court, exercise all powers vested in that behalf in the mentally ill person, in his individual capacity or in his capacity as a trustee or as a guardian.
COMMENT
This section empowers the manager to execute conveyances in the name and on behalf of the mentally ill person, under the orders of the District Court.
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62. Manager to perform contracts directed by District Court
Where the mentally ill person had, before his mental illness, contracted to sell or otherwise dispose of his property or any portion thereof, and if such contract is, in the opinion of the District Court, of such a nature as ought to be performed, the District Court may direct the manager appointed under this Act to perform such contract and to do such other acts in fulfilment of the contract as the Court considers necessary and thereupon the manager shall be bound to act accordingly.
COMMENT
This section empowers the manager to perform contracts on behalf of the mentally ill person as per directions of the District Court.
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63. Disposal of business premises
Where a mentally ill person had been engaged in business before he became mentally ill, the District Court may, if it appears to be for the benefit of the mentally ill person to dispose of his business premises, direct the manager appointed under this Act in relation to the property of such person to sell and dispose of such premises and to apply the sale proceeds thereof in such manner as the District Court may direct and thereupon the manager shall be bound to act accordingly.
COMMENT
The District Court is empowered to direct disposal of business premises of a mentally ill person, who was engaged in business prior to becoming mentally ill, for the benefit of the said ill person.
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64. Manager may dispose of leases
Where a mentally ill person is entitled to a lease or under lease, and it appears to the manager appointed under this Act in relation to the property of such person that it would be for the benefit of the mentally ill person to dispose of such leas or under lease, such manager may, after obtaining the orders of the District Court, surrender, assign or otherwise dispose of such lease or under lease to such person for such consideration and upon such terms and conditions as the Court may direct.
COMMENT
This section empowers manager of a mentally ill person to dispose of lease for the benefit of the mentally ill person, after obtaining the orders of the District Court.
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65. Power to make order concerning any matter connected with mentally ill person
The District Court may, on an application made to mentally ill person or his property, make such order, subject to the provisions of this Chapter, in relation to that matter as in the circumstances it thinks fit.
COMMENT
This section empowers the District Court to pass order concerning any matter connected with mentally ill person.
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66. Proceeding if accuracy of inventory or accounts is impugned
If any relative of the mentally ill person or the collector impugns, by a petition to the District Court, the accuracy of the inventory or statement referred to in sub-section (1), or, as the case may be, any annual account referred to in sub-section (2) of Sec.60, the Court may summon the manager and summarily inquire into the matter and make such order thereon as it thinks fit.
Provided that the District Court may, in its discretion, refer such petition to any Court subordinate to it, or to the Collector in any case where the manager was appointed by the Collector and the petition is not presented by the Collector.
COMMENT
This section lays down the procedure for disposal of petition challenging accuracy of inventory or account.
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67. Payment into public treasury and investment of proceeds of estate
All sums received by a manager on account of any estate in excess of what may be required for the current expenses of the mentally ill person or for the management of his property, shall be paid into the public treasury on account of the estate, and shall be invested from time to time in any of the securities specified in Sec.20 of the Indian Trusts Act, 1882 (2 of 1982), unless the authority which appointed him, for reasons to be recorded in writing, directs that, in the interests of the mentally ill person such sums be otherwise invested or applied.
COMMENT
A manager of mentally ill person is required under this section, to make payment into public treasury on account of estate.
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68. Relative may sue for account
Any relative of a mentally ill person may, with the leave of the District Court, sue for an account from any manager appointed under this Act, or from any such person after his removal from office or trust, or from his legal representative in the case of his death, in respect of any property then or formerly under his management or of any sum of money or other property received by him on account of such property.
COMMENT
This section empowers relative of a mentally ill person, with the leave to the District Court, to sue for account from any manager.
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69. Removal of managers and guardians
1. The manager of the property of a mentally ill person may, for sufficient cause and for reasons to be recorded in writing, be removed by the authority which appointed him and such authority may appoint a new manager in his place.
2. Any manager removed under sub-section (1) shall be bound to deliver the charge of all property of the mentally ill person to the new manager and to account for all moneys received or disbursed by him.
3. The District Court may, for sufficient cause, remove any guardian of a mentally ill person and appoint in his place a new guardian.
COMMENT
This section makes provision for removal of managers and guardians of a mentally ill person
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70. Dissolution and disposal of property of partnership on a memner becoming mentally ill
1. Where a person, being a member of a partnership firm, is found to be mentally ill, the District Court may, on the application of any other partner for the dissolution of partnership or on the application of any person who appears to that Court to be entitled to seek such dissolution, dissolve the partnership.
2. Upon the dissolution under sub-section (1), or otherwise, in due course of law, of a partnership firm to which that sub-section applies, the manager appointed under this Act may, in the name and on behalf of the mentally ill person, join with the other partners in disposing of the partnership property upon such terms, and shall do all such acts for carrying into effect the dissolution of the partnership, as the District Court may direct.
COMMENT
This section makes provision for dissolution and disposal of property of partnership firm when a member becomes mentally ill.
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71. Power to apply property for maintenance of mentally ill person without appointing manager in certain cases
1. Notwithstanding anything contained in the foregoing provisions, the District Court may, instead of appointing a manager of the estate, order that in the case of cash, the cash and in the case of any other property the produce thereof, shall be realised and paid or delivered to such person as may be appointed by the District Court in this behalf, to be applied for the maintenance of the mentally ill person and of such members of his family as are dependent on him.
2. A receipt given by the person appointed under sub-section (1) shall be valid discharge to any person who pays money or delivers any property of the mentally ill person to the person so appointed.
COMMENT
This section empowers the District Court to order for application/utilization of cash and the produce of other property for maintenance of mentally ill person without appointing a manager of the estate.
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72. Power to order transfer of stock, securities or shares belonging to mentally ill person in certain cases
Where any stock or Government securities or any share in a company (transferable within India or the dividends of which are payable therein) is or are standing in the name of, or vested in, a mentally ill person beneficially entitled thereto, or in the manager appointed under this Act or in a trustee for him, and the manager dies intestate, or himself becomes mentally ill, or is out of the jurisdiction of the District Court, or it is uncertain whether the manager is living or dead, or he neglects or refuses to transfer the stock, securities or shares, or to receive and pay over thereof the dividends to a new manager appointed in his place, within fourteen days after being required by the Court to do so, then the District Court may direct the company or Government concerned to make such transfer, or to transfer the same, and to receive and pay over the dividends in such manner as it may direct.
COMMENT
This section empowers the District Court to pass order for transfer of stock, securities or share belonging to mentally ill person, when the manager dies or himself becomes mentally ill or neglects or refuses to transfer stock, securities, etc.
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73. Power to order transfer of stock, securities or shares of mentally ill person residing out of India
Where any stock or Government securities or share in a company is or are standing in the name of, or vested in , any person residing out of India, the District Court upon being satisfied that such person has been declared to be mentally ill and that his personal estate has been vested in a person appointed for the management thereof, according to the law of the place where he is residing, may direct the company or Government concerned to make such transfer of the stock, securities or shares or of any part thereof, to or into the name of the person so appointed or otherwise, and also to receive and pay over the dividends and proceeds, as the District Court thinks fit.
COMMENT
This section empowers the District Court to issue directions for transfer of stock, securities or shares of mentally ill person residing out of India.
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74. Power to apply property for mentally ill person's maintenance in case of temporary mental illness
If it appears to the District Court that the mental illness of a mentally ill person is in its nature temporary, and that it is expedient to make provision for a temporary period, for his maintenance for the maintenance of such members of his family as are dependent on him, the District Court may, in like manner as under Sec. 71, direct his property or a sufficient part thereof to be applied for the purpose specified therein.
COMMENT
The District Court is empowered, under this section, to apply property of the mentally ill person for his maintenance in case of temporary mental illness.
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75. Action taken in respect of mentally ill person to be set aside if District Court finds that his mental illness has ceased
1. Where District Court has reason to believe that any person who was found to be mentally ill after inquisition under this Chapter has ceased to be mentally ill, it may direct any Court subordinate to it to inquire whether such person has ceased to be mentally ill.
2. An inquiry under sub-section (1) shall, so far as may be, conducted in the same manner as an inquisition conducted under this Chapter.
3. If after an inquiry under this section, it is found that the mental illness of a person has ceased, the District Court shall order all actions taken in respect of the mentally ill person under this Act to be set aside on such terms and conditions as that Court thinks fit to impose.
COMMENT
This section makes provision for setting aside the action taken in respect of mentally ill person if the District Court finds that his mental illness has ceased.
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76. Appeals
An appeal shall lie to the High Court from every order made by a District Court under this Chapter.
COMMENT
This section makes provision for appeal in High Court from every order of the District Court.
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77. Power of District Court to make regulations
The District Court may, from time to time, make regulations for the purpose of carrying out the provisions of this Chapter.
COMMENT
This section empowers the District Court to make regulations for carrying out the provisions of this Chapter.
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Chapter VII - Liability To Meet Cost Of Maintenance Of Mentally Ill Persons
Detained In Psychiatric Hospital
Or
Psychiatric Nursing Home
78. Cost of maintenance to be borne by Government in certain cases
The cost of maintenance of a mentally ill person detained as an in-patient in any psychiatric hospital or psychiatric nursing home shall, unless otherwise provided for by any law for the time being in force, be borne by the Government of the State wherein the authority which passed the order in relation to the mentally ill person is subordinate, if -
1. that authority which made the order has not taken an undertaking from any person to bear the cost of maintenance of such mentally ill person, and
2. no provision for bearing the cost of maintenance of such a District Court under this Chapter.
COMMENT
This section makes provisions for maintenance of mentally ill person at Government cost, in certain cases.
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79. Application to District Court for payment of cost of maintenance out of estate of mentally ill person or from a person legally bound to maintain him
1. Where any mentally ill person detained in a psychiatric hospital or psychiatric nursing home has an estate or where any person legally bound to maintain such person has the means to maintain such person, the Government liable to pay the cost of maintenance of such person under Sec. 78 or any local authority liable to bear the cost of maintenance of such mentally ill person under any law for the time being in force, may make an application to the District Court within whose jurisdiction the estate of the mentally ill person is situate or the person legally bound to maintain the mentally ill person and having the means therefor resides, for an order authorising it to apply the estate of the mentally ill person to the cost of maintenance or, as the case may be, directing the person legally bound to maintain the mentally ill person and having the means therefor to bear the cost of maintenance of such mentally ill person.
2. An order made by the District Court under sub-section (1) shall be enforced in the same manner, shall have the same force and effect and be subject to appeal, as a decree made by such Court in a suit in respect of the property or person mentioned therein.
COMMENT
When a mentally ill person has an estate or any person legally bound to maintain such person has means to maintain such ill person, application may be preferred to the District Court for payment of cost of maintenance of mentally ill person.
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80. Persons legally bound to maintain mentally ill person not absolved from such liability
Nothing contained in the foregoing provisions shall be deemed to absolve a person legally bound to maintain a mentally ill person from maintaining such mentally ill person.
COMMENT
The provisions of the Act do not absolve person legally bound to maintain mentally ill person from maintaining such ill person.
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Chapter VIII - Protection Of Human Rights Of Mentally III Persons
81.
1. No mentally ill person shall be subjected during treatment to any indignity (whether physical or mental) or cruelty.
2. No mentally ill person under treatment shall be used for purposes of research, unless -
1. such research is of direct benefit to him for purposes of diagnosis or treatment, or
2. Such person, being a voluntary patient, has given his consent in writing or where such person (whether or not a voluntary patient) is incompetent, by reason of minority or otherwise, to give valid consent, the guardian or other person competent to give consent on his behalf, has given his consent in writing, for such research.
3. Subject to any rules made in this behalf under Sec.94 for the purpose of preventing vexatious or defamatory communications or communications prejudicial to the treatment of mentally ill persons, no letters or other communications sent by or to a mentally ill persons under treatment shall be intercepted, detained or destroyed.
COMMENT
This section provides for protection of human rights of mentally ill persons.
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Chapter IX - Penalties And Procedure
82. Penalty for establishment or maintenance of psychiatric hospital or psychiatric nursing home in contravention of Chapter III
1. Any person who establishes or maintains a psychiatric hospital or psychiatric nursing home in contravention of the provisions of Chapter III shall, on conviction, be punishable with impriisonment for a term which may extend to three months, or with fine which may extend to two hundred rupees, or with both, and in the case of a second or subsequent offence, with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
2. Whoever, after conviction under sub-section(1) continues to maintain a psychiatric hospital or psychiatric nursing home in contravention of the provisions of Chapter III shall, on conviction, be punishable with fine which may extend to one hundred rupees, for every day after the first day during which the contravention is continued.
COMMENT
This section makes provision for penalty for establishment or maintenance of psychiatric hospital/nursing home in contravention of the provisions of Chapter III.
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83. Penalty for improper reception of mentally ill person
Any person who receives or detains or keeps a mentally ill person in a psychiatric hospital or psychiatric nursing home otherwise than in accordance with the provision of this Act, shall, on conviction, be punishable with imprisonment for a term which may extend to two years or with fine which may extend to one thousand rupees, or with both.
COMMENT
This section makes provision for penalty for improper reception of mentally ill person.
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84. Penalty for contravention of Secs. 60 and 69
Any manager appointed under this Act to manage the property of a mentally ill person who contravenes the provisions of Sec. 60 or sub-section (2) of Sec. 69, shall, on conviction, be punishable with fine which may extend to two thousand rupees and may be detained in a civil prison till he complies with the said provisions.
COMMENT
This section makes provision for penalty for contravention of the provisions of Secs. 60 and 69.
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85. General provision for punishment of other offences
Any person who contravenes any of the provisions of this Act or of any rule or regulation made thereunder, for the contravention of which no penalty is expressly provided, in this Act, shall, on conviction, be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
COMMENT
This section makes general provision for punishment of other offences.
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86. Offences by companies
1. Where an offence under this Act has been committed by a company, every person who, at the time of offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
2. Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liabale to be proceeded against and punished accordingly.
EXPLANATION - For the purposes of this section -
1. "company" means a body corporate and includes a firm or other association of individuals; and
2. "director", in relation to a firm, means a partner in the firm. COMMENTS This section deals with the offences under this Act committed by companies.
PENAL PROVISION - Penal provision is to be construed rigidly1.
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87. Sanction for prosecutions
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no Court shall take cognizance of any offence punishable under Sec. 82, except with the previous sanction of the licensing authority.
COMMENT
Under this section previous sanction of the licensing authority has to be obtained for persecutions.
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Chapter X - Miscellaneous
88. Provision as to bonds
The provisions of Chapter XXXIII of the Code of Criminal Procedure, 1973 (2 of 1974) shall, as far as may be apply to bonds taken under this Act.
COMMENT
This section makes provision as to bonds taken under this Act.
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89. Report by medical officer
The medical officer in-charge of a psychiatric hospsital or psychiatric nursing home shall, as soon as may be, after any mentally ill person detained therein has been discharged make a report in respect of his mental and physical condition to the authority under whose orders such person had been so detained.
COMMENT
This section requires the medical officer to make a report about the mental and physical condition of the discharged person to the authority under whose orders the mentally ill person was detained in the psychiatric hospsital/nursing home.
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90. Pension, etc. of mentally ill person payable by Government
1. Where any sum is payable in respect of pay, pension, gratuity or any allowance to any person by any Government and the person to whom the sum is payable is certified by a Magistrate under this Act to be a mentally ill person, the officer under whose authority such sum would be payable, may pay to the person having charge of the mentally ill person so much of the said sum as he thinks fit, having regard to the cost of maintenance of such person and may pay to such member of the family of the mentally ill person as are dependent on him for maiantenance, the susrplus, if any, or such part thereof as he thinks fit, having regard to the cost of maintenance of such members.
2. Where there is any further surplus amount available out of the funds specified in sub-section (1) after making payments as provided in that sub-section, the Government shall hold the same to be dealt with as follows namely:
1. where the mentally ill person is certified to have ceased to be mentally ill person by the District Court within the local limits of whose jurisdiction such person resides or is kept or detains, the whole of the surplus amount shall be paid back to that person;
2. Where the mentally ill person dies before payament, the whole of the surplus amount shall be paid over to those of his heirs who are legally entitled to receive the same:
3. Where the mentally ill person dies during his mental illness without leaving any person legally entitled to succeed to his estate, the whole of the surplus amount shall, with the prior permission of the District Court, be utilised for such charitable purpose as may be approved by the District Court.
3. The Central Government or the State Government, as the case may be, shall be discharged of all liability in respect of any amount paid in accordance with this section.
COMMENT
This section makes provision for payment of pay, pension, gratuity, etc. of mentally ill person payable by Government.
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91. Legal aid to mentally ill person at State expense in certain cases
1. Where a mentally ill person is not represented by a legal practitioner in any proceeding under this Act before a District Court or a Magistrate and it appears to the District Court or Magistrate that such person has not sufficient means to engage a legal practitioner, the District Court or Magistrate shall assign a legal practitioner to represent him at the expense of the State.
2. Where a mentally ill person having sufficient means to engage a legal practitioner is not represented by a legal practitioner in any proceding under this Act before a District Court or a Magistrate and it appears to the District Court or Magistrate, having regard to all the circumstances of the case, that such person ought to be represented by a legal practitioner, the District Court, or Magistrate may assign a legal practitioner to represent him and direct the State to bear the expenses with respect thereto and recover the same from out of the property of such person.
3. The High Court may, with the previous approval of the State Government, make rules providing for-
1. the mode of selecting legal practitioners for the purpose of Sub-section (1) and (2);
2. the facilities to be allowed to such legal practitioners;
3. the fees payable to such legal practitioners by the Government and generally for carrying out the purpose of sub-sections (1) and (2).
EXPLANATION - In this section "legal practitioner" shall have the meaning assigned to it in Cl. (I) of Sec. 2 of the Advocates Act, 1961 (25 of 1961).
COMMENT
This section provides for legal and to mentally ill person at State expense in certain cases.
EXPLANATION - It is now well settled that an explanation added to a statutory provision is not a substantive provision in any sense of the term but as the plain meaning of the word itself shows it is merely meant to explain or clarify certain ambiguities which may have crept in the statutory provision1.
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92. Protection of action taken in good faith
1. No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of this Act or any rules, regulations or orders made thereunder.
2. No suit or other legal proceeding shall lie against the Government for any damage caused or likely to be caused for anything which is in good faith done or intended to be done in pursuance of this Act or any rules, regulations or orders made thereunder.
COMMENT
This section grants immunity from legal proceedings to persons for anything done or intended to be done under this Act in good faith.
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93. Construction of reference to certain laws, etc.
1. Any reference in this Act to a law which is not in force in any area shall, in relation to that area, be construed as a reference to the corresponding law, if any, in force in that area.
2. Any reference in this Act to any officer or authorityshall, in relation to any area in which there is no offer or authority with the same designation, be construed as a reference to such officer or authority as may be specified by the Cengral Government by notification.
COMMENT
This section provides for construction of reference to certain laws.
SOCIAL WELFARE LEGISLATION - In construing social welfare legislation, the Courts should adopt a beneficent rule of construction and in any event, that construction should be preferred which fulfils the policy of the legislation. Construction to be adopted should be more beneficial to the purposes in favour of and in whose interest the Act has been passed1.
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94. Power of Central Government and State Government to make rules
1. The Central Government may, by notification, make rules providing for the qualifications of persons who may be appointed as Mental Health Authority under Sec. 3 and the terms and conditions subject to which they may be appointed under that section and all other matters relating to such authority.
2. Subject to the provisions of sub-section (1), the State Government, with the previous approval of the Central Government may, by notification, make rules for carrying out the provisions of this Act:
Provided that the first rules shall be made by the Central Government by notification.
3. In particular, and without prejudice to the generality of the foregoing power, rules made under sub-section (2) may provide for all or any of the following maters, namely:
1. the qualifications of persons who may be appointed as Mental Health Authority and the terms and conditions subject to which they may be appointed under Sec. 4 and all other matters relating to such authority;
2. The class or category of persons for whom separate psychiatric hospitals and psychiatric nursing homes may be established and maiantained under Cl (d) of sub-section (1) of Sec. 5;
3. The form in which, -
1. an application, may be made for grant or renewal of a licence and the fee payable in respect thereof under Sec. 7 or as the case may be, Sec. 9;
2. a licence may be granted for the establishment or maintenance of a psychiatric hospital or a psychiatric nursing home under Sec.8;
3. an application may be made for a reception order under Sec. 20
4. the manner in which an order refusing to grant, or revoking, a licence shall be communicated under Sec. 8 or, as the case may be Sec. 11;
5. the manner in which a report may be made to the licensing authority under sub-section (2) of Sec.9;
6. the minimum facilities referred to in the proviso to sub-section (5) of Sec. 9 including -
1. psychiatrist-patient ratio;
2. other medical or para-medical staff;
3. space requirement;
4. treatment facilities; and
5. equipment:
7. the manner in which and the conditions subject to which a psychiatric hospital or psychiatric nursing home shall be maintained under sec. 10.
8. The form and manner in which and the period within which an appeal against any order refusing to grant or renew a licence or revoking a licence shall be preferred and the fee payable in respect thereof under sec.12;
9. The manner in which records shall be maintained under sub-section (1) of sec.13.
10. The facilities to be provided under Sec. 14 of the treatment of a mentally ill person as an out-patient;
11. The manner in which application for a reception order shall be signed and verified under sub-section (6) of Sec. 20;
12. The qualification of persons who may be appointed as visitors and the terms and conditions on which they may be appointed, under Sec.37 and their functions.
13. Prevention of vexatious or defamatory communications and other matters referred to in sub-section (3) of Sec.81;
14. Any other matter which is required to be, or may be, prescribed.
COMMENT
This section empowers the Central Government and State Government to make rules for carrying out the purposes of the legislation.
RULES OF CONSTRUCTION - It is well-settled canon of construction that the rules made under a statute must be treated exactly as if they were in the Act and are of the same effect as if contained in the Act. There is another principle equally fundamental to the rules of construction, namely, that the rules shall be consistent with the provision of the Act1.
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95. Rules made by Central Government or the State Government to be laid before the Legislature
1. Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session , for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only if such modified form or be of no effect, as the case may be; so, however, that anay such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
2. Every rule made by the State Government under this Act shall be laid, as soon as may be after it is made, before the State Legislature.
COMMENT
This section provides that the rules framed by the Central Government or the State Government shall be laid before each Houses of Parliament or the State Legislature, as the case may be.
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96. Effect of Act on other laws
The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force and to the extent of such inconsistency that other law shall be deemed to have no effect.
COMMENT
This section lays down that the provisions of othis Act shall have effect on other laws.
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97. Power to remove difficulty
If any difficulty arises in giving effect to the provisions of this Act in any State, the State Government may, by order, do anything not inconsistent with such provisions which appears to it to be necessary or expedient for the purpose of removing the difficulty.
Provided that no order shall be made under this section in relation to any State after the expiry of two years from the date on which this Act comes into force in that State.
COMMENT
This section empowers the State Government to remove difficulty.
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98. Repeal and Saving
1. The Indian Lunacy Act, 1912 (4 of 1912) and the Lunacy Act, 1977 [Jammu and Kashmir Act 25 of 1977 (1920 AD)] are hereby repealed.
2. Notwithstanding such repeal, anything done or any action taken under either of the said Acts shall, in so far as such thing or action is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act and shall continue in force until superseded by anything done or any action taken under this Act.
COMMENT
EFFECT OF IMPLIED REPEAL - If there is a repugnancy between the two pieces of legislation, to such an extent that both cannot stand together and operate simultaneously, the latter will have the effect of impliedly repealing the former1.
SAVING PROVISION - EFFECT OF - While giving effect to a saving provision, when it provides that something which is done or issued under the repealed provision must be treated as having been treated or issued under the newly enacted provision, an earlier order can be saved only if such a direction or an order could be effectively and validdly made under the new provisions of law, which had repealed the earlier provisions2.
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