Physical Presence Of Accused Essential For Determining Unsoundness Of Mind Making Him Incapable To Enter Defence: Orissa High Court

The high court of Orissa passed a judgment on 11 April 2023, has clarified that physical presence of accused in the Court is essential, under Section 329(2) of the Code of Criminal Procedure, to assess if unsoundness of mind renders him incapable to enter defence. It underlined that the concerned Court must not pass order to that effect without examining the accused, merely basing upon medical certificate, in the case of Single Judge Bench of Justice Radha Krishna Pattanaik (CRLMC No. 2614 of 2022), passed by the Single Judge Bench of Justice Radha Krishna Pattanaik. 


The petitioner was charged under Section 376(3) of the IPC, as well as Section 14(A) of the Child Labour (Prohibition) Act and Section 6 of the POCSO Act, in conjunction with Sections 3(1)(r) and 3(2)(v) (va) of the SC & ST (PoA) Act. It is claimed that the petitioner has suffered from dementia for the past six years, as certified by the Medical Board, and that this fact was communicated to the Trial Court by stating that he is a person of unsound mind and thus must be dealt with in accordance with Section 329 of the CrPC, which governs the procedure when a person of unsound mind is tried. In that regard, the petitioner filed an application for consideration. However, in the aforementioned procedure, the Court below ordered the petitioner to physically attend in order to determine the petitioner’s next course of action. Dissatisfied, the petitioner filed an appeal with the High Court. It was argued that because the Medical Board had already certified the petitioner to be suffering from Dementia with definitive cognitive impairment behavior and psychological symptoms, which had been duly diagnosed by doctors at Capital Hospital and AIIMS, Bhubaneswar, there was no need for any further examination. As a result, the lower court’s decision is not legal.

On the other hand, it was submitted for the State that the procedure followed by the Trial Court is in accordance with the provision of law because the physical presence of the petitioner is required to determine whether unsoundness of mind has indeed rendered him incapable of entering defense, as required by law under Section 329(2), CrPC.


After reviewing Section 329 CrPC sub-section (2), the Court determined that if the Magistrate or Court is informed that a person to be tried is of unsound mind, it shall decide whether such unsoundness renders him incapable of defending. If the accused is deemed incompetent, the finding should be documented. Following that, the Court shall examine the record of evidence produced by the prosecution and then proceed either to discharge him if no prima facie case is found against him and dispose of the matter in the manner prescribed by Section 330 CrPC or to postpone the trial for such period as is required for his treatment, if a prima facie case is made out.

Accordingly, the criminal miscellaneous case was dismissed denying the relief.

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