Isabella Mariam

The High Court of Delhi Single Bench of Justice Dr. Swarana Kanta Sharma has held that the discharge of an accused diagnosed with severe mental retardation was legally unsustainable due to non-compliance with statutory procedures under the Code of Criminal Procedure (Cr.P.C.). The Court has set aside the impugned order of discharge and remanded the matter back to the Sessions Court for fresh consideration under the appropriate provisions of law.

The Court noted that the Sessions Court had discharged the accused without undertaking the mandatory judicial assessment required by Section 330(3) of Cr.P.C., which outlines the procedure for handling accused persons suffering from mental retardation or unsoundness of mind. The Court held that the omission to assess whether the accused could be safely released or required to be placed in a residential facility constituted a serious procedural lapse.

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Accordingly, the High Court directed that the Sessions Court re-examine the matter in accordance with law and ensure compliance with the mandatory safeguards prescribed under Chapter XXV of Cr.P.C. The revision petition filed by the State was thus allowed to the extent of setting aside the impugned discharge order.

The case arises out of a petition filed by the State challenging the discharge of an accused who was charged under Section 376 of the Indian Penal Code (IPC) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The impugned discharge order dated 29.04.2017 had been passed by the Additional Sessions Judge-01, North District, Rohini Court, Delhi, in SC No. 58842/16, stemming from FIR No. 618/2016 registered at Police Station Bhalswa Dairy, Delhi.

The incident involved an allegation by a minor victim who stated that the accused attempted to sexually assault her in a vacant plot. The victim was medically examined on 18.09.2015 at BJRM Hospital, and the history recorded in the Medico Legal Certificate (MLC) referred to an "alleged history of attempt to sexual assault." One witness, reportedly saw the incident from her residence. It was alleged that the accused undressed himself and the victim, and was about to commit the offence when he was apprehended.

Following investigation, the police filed a chargesheet against the accused for offences punishable under Section 376 IPC and Section 6 of the POCSO Act. Along with the chargesheet, the Investigating Officer submitted an IQ Certificate dated 02.02.2009 issued by the Institute of Human Behaviour and Allied Sciences (IHBAS), assessing the mental age of the accused as that of a four-year-old child.

Taking cognizance of the mental condition of the accused, the Sessions Court directed a fresh evaluation. On 26.05.2016, it sought a report on the fitness of the accused to stand trial from a Medical Board constituted at IHBAS. The Board submitted its report on 16.09.2016, diagnosing the accused with severe mental retardation (SQ=26) without behavioural problems. It concluded that the accused was unfit to stand trial, noting deficiencies in his ability to understand charges, comprehend consequences, or defend himself in court.

Subsequently, on 13.04.2017, Dr. Vijender Singh, Associate Professor of Psychiatry and member of the Medical Board, appeared as CW-1 before the Sessions Court and reaffirmed the Board's findings. He stated that the accused's condition was congenital, continuous, and incurable. The Sessions Court, relying on this testimony and the medical records, held that the accused could neither understand the nature of the act committed nor was he capable of entering a defence. Consequently, the accused was discharged, and his father was directed to furnish a surety bond under Section 437-A Cr.P.C.

The State, through its Additional Public Prosecutor, challenged the discharge order, arguing that the Sessions Court had failed to comply with the mandatory provisions under Sections 328, 329, and 330 of Cr.P.C. The petition stated that the trial court did not conduct the requisite inquiry or determine whether the accused, despite his mental condition, posed a threat to himself or others, or whether he should have been detained in safe custody.

The petitioner argued that Section 330(3) of Cr.P.C. obligates the court to assess whether an accused suffering from mental retardation should be discharged and released on sufficient security or committed to a residential facility. This step, according to the State, was bypassed by the Sessions Court, rendering the discharge order legally flawed.

The respondent opposed the petition, submitting that the accused's mental retardation had been duly documented since 2009 and reconfirmed by the Medical Board in 2016. It was further contended that the Sessions Court had initiated an inquiry by directing a medical evaluation and had complied with Section 328 of Cr.P.C. The respondent argued that given the incurable and static nature of mental retardation, the discharge was appropriate, especially since the matter had not reached the stage of framing of charge.

Justice Dr. Swarana Kanta Sharma examined the statutory framework under Chapter XXV of Cr.P.C., which deals with accused persons of unsound mind. The Court observed that "the provisions under Chapter XXV, including Section 328, 329 and 330, are couched in mandatory language, by use of words like 'shall'. Thus, clearly, the procedure contemplated under this chapter is mandatory in nature."

The Court distinguished between unsoundness of mind and mental retardation, noting that mental retardation is "a developmental disability characterized by significantly subaverage intellectual functioning... not typically subject to fluctuation or relapse in the way mental illnesses are."

The Court further noted that Section 328 applies at the inquiry stage and mandates a medical evaluation when the Magistrate has reason to believe that the accused is of unsound mind. It found that "a Court can invoke the provisions of Section 328 of Cr.P.C. anytime after a chargesheet has been filed, till the stage of framing of charge."

In reference to the Sessions Court's actions, the High Court stated that "the learned Sessions Court had followed the mandate of Section 328(1) and (1A) of Cr.P.C. in its true spirit, by getting the accused examined by the medical board at IHBAS, and summoning and recording the statement of concerned medical expert as CW-1."

However, the Court held that the Sessions Court failed to proceed further under Section 330(3). It stated: "It was incumbent upon the learned Sessions Court to conduct an assessment under Section 330(3) of Cr.P.C. to determine whether the accused, considering the nature of the alleged act and the extent of mental retardation, could be discharged and safely released upon sufficient security, or could not be discharged and was required to be sent to a suitable residential facility."

The High Court noted: "There is also no indication in the impugned order that the learned Sessions Court considered any medical or specialist opinion to satisfy itself that the accused would not pose a danger to himself or to others if released."

Stating the significance of Section 330(3), the Court recorded that "this provision ensures that he is not subjected to unnecessary prosecution while also safeguarding society from potential harm." The omission to conduct this assessment, according to the Court, amounted to a failure of judicial responsibility.

The Court observed: "When a court fails to follow, in letter and spirit, the steps required to be followed under Section 330(3) of Cr.P.C., it effectively abdicates its responsibility both towards the accused and towards the society."

Finally, the Court concluded that "judicial adjudications must strike this balance and must not allow such important legal duties to be reduced to a mere formality."

The Court held that the impugned order was vitiated due to procedural non-compliance and stated: "the omission to follow the mandate of Section 330(3) of Cr.P.C. in this case renders the impugned order legally unsustainable."

Accordingly, the High Court directed: "The impugned order dated 29.04.2017 is vitiated for non-compliance with the provisions of Section 330 of Cr.P.C., which are mandatory in nature. The impugned order is thus set aside, to the extent it simply discharges the accused Neeraj without following the procedure set out in Section 330(3) of Cr.P.C."

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It further directed: "The matter is remanded back to the learned Sessions Court for passing an order afresh insofar as compliance with Section 330 of Cr.P.C., which relates to release of accused persons, is concerned."

The Court instructed that "copy of this judgment be forwarded to the concerned Sessions Court for information and compliance."

With above directions, the present revision petition is disposed of.

Advocates Representing the Parties:

For the Petitioner: Mr. Naresh Kumar Chahar, Additional Public Prosecutor for the State

For the Respondent: Mr. Arpit Srivastava, Advocate

Case Title: State v. XXX

Neutral Citation: 2025: DHC:4233

Case Number: CRL.REV. P. 763/2017

Bench: Justice Dr. Swarana Kanta Sharma

[Read/Download order]