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Due to lack of inquiry about the mental health of an accused, the Gujarat High Court has set aside the death sentence imposed by the Trial court on a lady accused in a double murder case and directed it to ascertain her mental condition before conducting re-trial.
The bench comprising of Justice JB Pardiwala and Justice AC Rao after perusing the evidence on record while hearing her appeal has noted that though plea of insanity was not raised before the Trial Court, and no evidence was led in that regard, the FIR itself stated that the mental condition of the accused was quite unstable and she was undergoing treatment in this regard past two years.
Thus, it was observed by the bench that the Trial Court had an obligation to undertake an inquiry under Section 329 of the Criminal Procedure Code so as to ascertain whether the accused was capable of making her defence.
The court said even if no party states such mental aspect but if the trial court finds that the documents disclosed such mental disorder then under provisions of section 329 of crpc it is the duty of the trial court to look into the materials and ascertain the capacity of the accused to enter the defence.
The bench further said: "If inexperienced advocates alone are available to defend such unfortunate accused, the court has a primary duty to come to the aid of the accused by putting timely and useful questions and warning the advocates from treading on dangerous grounds"
The bench also issued these general directions: If he is suffering from any unsoundness of mind, he should be forwarded to a mental hospital for treatment and until certificate of his fitness is received, the matter cannot proceed further. If the Investigating Officer fails to perform his duty of getting the accused person examined, it is the obligation of the Judicial Magistrate before whom he is produced for the first time. If he finds at the time of first remand that there is history of insanity or symptoms of the accused showing insanity, he should refer the accused for medical examination and find out whether the accused is suffering from mental or legal insanity or not. In case of mental insanity, he should be provided with appropriate medical help. It should be also borne in mind by the trial Judges that, no criminal case particularly inviting the substantial sentence should be conducted without appointment of advocate. If the accused is not represented, appropriate legal assistance should be provided to him at the state expenses. In case of sessionstriable offence, it is the duty of the Sessions Judge that sufficiently experienced lawyer be provided for conducting the case of accused person. The inquiry should be made whether he has conducted sessions cases or not and his length of practice would not suffice for his appointment. In case of sessions cases of complex or peculiar facts it should be inquired whether he has conducted such case or not. The legal aid to be provided at the State expenses should not be for the namesake. Upon such inquiry only he should be appointed as the advocate for the accused, and that too, after recording his satisfaction of the competency of the advocate. The Directorate of Prosecution, Legal Remembrancer and the Principal Secretary, Home Department, must regularly review the manner in which the Public Prosecutors in-charge of the sensitive cases are conducting the trial. Such review should be on a periodic basis and records in this regard shall be maintained.
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