The USA Journals Volume 03 Issue 08-2021
33
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
August 31, 2021 |
Pages:
33-39
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue08-07
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‘
ABSTRACT
An investigative officer is the first stake holder of the criminal justice system who is responsible to
bring each and every fact of the crime and to bring accused before the court of law. Sec- 328,Cr.P.C.
emphasis on the inquiry of unsoundness of mind of an accused that believe to be suffering from any
mental illness and a magistrate immediately directs prosecution for the a medical examination. If
Magistrate is convinced that the person is of unsound mind and consequently incapable of making his
defence, he shall postpone proceedings and referred the accused to the hospital for the treatment.
Section- 100 to 105 of Mental Health Care Act, 2017 also laid down procedures to deal with mentally ill
people who come in contact with law. However, it is found that investigative officers are either not
aware of these criminal procedures or showing negligence towards it. Few cases of insanity were
cometo notice by the Hon’ble High Courts where investigative officer’s negligence resulted into
miscarriage of judgments by lower courts. In this research article authors discussed few cases where
Court has found lacuna’s in investigative process and by setting past judgments aside deliver fresh
judgment in the favour of an insane defendant. Researcher also explores the issue of human right
violation by the criminal justice system itself. In conclusion some deliberations are made to eliminate
such issues from criminal justice system.
KEYWORDS
Unsoundness of mind, investigation, mental illness, insanity, human right, criminal procedure.
Negligence Vis-À-Vis Ignorance Of Fact With Reference To
Responsibilities Of Investigative Officers
Mahesh A. Tripathi
Phd Scholar, School Of Law, Humanities And Social Sciences, Rashtriya Raksha University,
Gandhinagar, Gujarat, India
Anand Kumartripathi
Pro- Vice Chancellor I/C & Senior Assistant Professor Of Law, Rashtriya Raksha University,
Gandhinagar, Gujarat, India
Shahanshah Gulpham
Assistant Professor, School Of Criminology And Behavioural Science, Rashtriya Raksha
University, Gandhinagar, Gujarat, India
Journal
Website:
https://theamericanjou
rnals.com/index.php/ta
jpslc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
The USA Journals Volume 03 Issue 08-2021
34
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
August 31, 2021 |
Pages:
33-39
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue08-07
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INTRODUCTION
Mental Health Care Act-2017
1
(MHCA), talks
about the responsibilities of other agencies
towards mentally ill person. In which Sec-100
defines the duties of police officers in respect
of persons with mental illness. Furthermore,
clause (3) of this section state that any person
under protection shall be immediately taken to
the nearest public health establishment as
soon as possible for the assessment of
healthcare needs and a mental health
professional will evaluate and shall convey the
findings to the incharge police officer. Sec -102
of the same Act further state that when any
person with mental illness or who may have a
mental illness appears or is brought before a
Magistrate, he may order that the person is
conveyed to a public mental health
establishment for assessment and treatment.
The mental health professional shall submit a
report to the Magistrate and the person shall
be dealt with in accordance with the provisions
of this Act.
Section 328 to 330 of the Code of Criminal
Procedure (CrPC-1973)
2
defines the criminal
proceedings against an accused that appears
or bring to notice by the investigative officer
that the person charged is not mentally sound
3
.
Magistrate holds inquiry and if found reason to
believe that the person against whom the
inquiry is being held is of unsound mind and
unable to make defence will direct for
examination of mental status
4
. After receiving
the report for the same if magistrate holds the
opinion of unsound mind shall postpone the
1
Mental Health Care Act.2017. Ministry of Law and
Justice, New Delhi
2
The Code of Criminal Procedure, 1973, Ministry of
Law and Justice, New Delhi
3
Gaur J. R. and Tripathi, M. A. “Insanity, mental
trauma, crime and the law”, International Journal of
proceedings. Court may release the accused on
sufficient security or may order the accused to
be detained in safe custody at Government
mental health care establishment.
As discussed above laws and criminal
proceedings are well defined and discussed
about how to deal with mentally ill people who
come into conflict with law. These laws and
criminal procedures are amended to reduce
and remove the human right violation related
issues that were noticed and apprehended by
the High Courts and Apex court of the country
time to time.
However, when comes to the implementation
of these laws and proceedings, it seems that
the basic pillars of the criminal justice system
are still either unaware of these particular laws
and proceedings or reluctant to follow the
amended concepts. There negligence or
ignorance towards it, raise severe human right
violation related issues.Because no person to
be held criminally responsible of the act in the
eyes of a competent court till the
contemporary is proved beyond reasonable
doubt
5
. Hence may not be proved guilty and
may not be punished or sentenced.
Criminal justice process is depends on the
prosecution and it is the duty and responsibility
of an investigative officer to investigate each
and every aspects of crime and accused. The
public prosecutor is also a prominent person in
criminal justice system who supposed to frame
the charges against a person on the available
facts. Both are getting enough time to submit
a charge sheet against an accused person. Co-
Management and Social Science Research Review,
8, I2, (2021)
4
Tripathi, M. A. and Tripathi, A. K. Paradigm Shift in
Indian Legislature with Reference to Criminal
Responsibility of an Unsound Mind, "Pragyaan:
Journal of Law" 10, 1, (2020)
5
AIR 1970 All 51, 1970 CriLJ 132
The USA Journals Volume 03 Issue 08-2021
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The American Journal of Political Science Law and Criminology
(ISSN
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Published:
August 31, 2021 |
Pages:
33-39
Doi:
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occurring disorders is also references for
investigation in special cases
6
.
The responsibilities of courts are also defined
and there is no higher principle for the
guidance of the court than the one that no act
of courts should harm a litigant and it is the
bounden duty of the courts to see that if a
person is harmed by a mistake of the court he
should be restored to the position he would
have occupied, but for that mistake
7
. As per
above discussion it is crystal clear that Indian
Penal Code and Cr.P.C. both have enough
provisions to deal effectively with mentally ill
people. However, when comes to the
implementation strong lacuna is noticed from
investigation and prosecution part of the
criminal justice system.
This research is aim to explore the existing
problems and suggestion for the improvement
in Criminal Justice Proceedings and as well in
prosecution against mentally ill people.
Researchers made a deliberate attempt to
discuss two such cases where high court found
severe mistakes from prosecution side.
METHODOLOGY
Present study is a review research and the data
was collected online by typing the words
“Insanity’
“Negligence
of
Investigative
officers” “Mental illness and criminality”.
Various online search engines were used such
as “indiankanoon.com” “Legal Crystal” and
High Court’s website to collect the judgments.
Various government website to collect the acts
has been done and relevant acts were
obtained. An analytical research has been
carried out and appropriate findings were
incorporated in the review.
6Prins S.J. and L. Draper. 2009. Improving Outcomes for People with Mental
Illness Under Community Corrections Supervision: A Guide to Research
Informed Policy and Practice
7
AIR 1966 SC 1631) CRIMINAL APPEAL NO.474 OF
2019
Case-I
A 19 year old spinster girl was charged of
murdering her mother and sister on 7
th
Feb-
2017. Accused was youngest among all six
siblings. Father and most of the siblings were
involved in the same business of selling old
cloths.She inflicted swordblow on her mother
and two sisters during their sleep early in the
morning. When she was inflecting blow on
sisters she was pushed aside by his elder
brother. After reaching to the hospital mother
and a sister was declared dead but one sister
survived with depth abdominal injuries. The
complainant was accused’s elder brother
during his statement he mentioned that before
the day of incident mother scolded and
slapped accused on her face over the
household
chores.
During
the
verbal
altercation with mother accused was hurling
abusive
language.He further
statedthat
accused was suffering from mental illness for
which shewas under treatment since last two
years at a private clinic at Gandhidham.
She was arrested and as the case was
exclusively session triable came to the session
court under the Section 209 Cr.P.C.After the
prosecution evidence, the charges were
framed and she was convicted and imposed
death penalty. The appellant was dissatisfied
with judgment and appealed in High Court
8
.
Court observed severe lacuna from law
enforcement agencies, judicial magistrate and
session judge. Court has pointed out all the
failures made on all these three stages of
criminal justice. Court also quoted several
human right violation issues in this case.
Finally,issued direction to the Director General
of Police, Gujarat State and all Judicial
Magistrate, Session Judges/ Special judges
8
Gujarat vsManjuben
, Gujarat High Court, March
18,2019,Retrieved from https://indiankanoon.org/
on 21
st
May,2020.
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The American Journal of Political Science Law and Criminology
(ISSN
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Published:
August 31, 2021 |
Pages:
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Doi:
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regarding the handling of an accused as
follows;
If during the arrest of an accused any
conduct or history of that person indicating
unsoundness of mind is found or noticed.
It is the duty of the investigative officer
(IO) who has arrested him to produce him
before the medical officer for his mental
status examination with regard to his
mental condition and to obtain the
necessary certificate. Same should be
produced before the magistrate.
If accused person is suffering from any
defect of mind, he should be forwarded to
a mental hospital for treatment and until
certificate of his fitness is received, the
matter cannot precede further (Fitness to
stand trial).
If the IO fails to perform his duty of getting
the accused person examined by the
medical officer, it is the responsibility of the
Judicial Magistrate before whom he is
produced for the first time.
If he noticed at the time of first remand
that there is history of mental illness or
signs of the accused showing insanity, he
should refer the accused person for
medical examination and clarify whether
the accused is suffering from mental or
legal insanity or not.
In case of any mental insanity, he should be
provided with appropriate medical care
and support.
With these above mentioned directions court
has also noted certain limitation during trial
and mentioned that Section 304Cr.P.C. is also
not been exercised in this case and further
stated that it indicates the clear violation of the
latter and spirit of Article 2.
9
The Indian Evidence Act 1872 Chapter-VII
In the aforesaid context, Court has also
referred to the National Legal Services
Authority (NLSA) that provides free and
competent legal services and instructed them
to provide senior advocates to defend cases of
very serious nature, affecting the life and
liberty of an individual.
Case-II
A 36 year old married lady was charged for the
killing of 3 people at Kottiyam Police Station
Kerala. In the fact of this case on 05/02/2008 at
5:00 pm, accused lady has attacked with knife
and slash neck of her mother and two
daughters aged 8 and 6 years. Further she
inflicted a deep cut on her own neck to commit
suicide.The mother was died immediately but
both girls and accused were rushed to the
hospital by the neighbors. Both the girls were
declared dead by the medical officer. However,
due to timely medical intervention and care
accused survived.
She was arrested and charged for 3 murders.
During trial all the evidenced were examined.
Accused was also questioned under Sec.313 (1)
(b) Cr.P.C. after the closure of the prosecution
evidence. Accused denied all the incriminating
facts and circumstances. In addition she stated
that she had been mentally ill at the time of the
incident. She mentioned that somediv had
trespassed into her house and attacked on
victims she could not harm anydiv. Session
court found the accused guilty under section
302 & 309 IPC and sentenced her for life
imprisonment.
Defendant has pleaded in the high court
against the verdict and in response court
stated that in the cases of unsoundness of
mind, it is the responsibility of accused to
produce evidence
9
to get benefit under section
84. However, in this case accused was failed to
convince the lower courts regarding her
mental condition. Defense has argued that
The USA Journals Volume 03 Issue 08-2021
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The American Journal of Political Science Law and Criminology
(ISSN
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2693-0803)
Published:
August 31, 2021 |
Pages:
33-39
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue08-07
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during investigation process it was came to
light that accused was suffering from some
mental illness but the same was not produced
before the court, failure of the proper
investigation accused was deprived from the
benefit of doubt. High court was convinced
with the doubt raised by the defendant that
when a lady charged with a murder of her own
two children and mother without any strong
intention should have indicated doubt in the
mind of investigation as well as judiciary
10
. It
should be immediately inquired and medical
examination of the accused should have been
done. That was not happened in this said case
which indicates strong weakness and failure
from prosecution side. This automatically
provide right to get benefit of doubt and
acquittal from the criminal responsibility.
In the fact of this case defendant has produce
enough evidence that proved that the accused
was laboring from delusional disorders since
four year before the incident. And after one
year of treatment she was diagnosed with
schizophrenia. However, any proof of mental
state was not produced at the time of crime.
Defendant has argued about the infirmity in
the investigation and stated that spite of
evidence oftreatment for mental disorder
which was spoke by the witness (Accused’s
brother) during prosecution questioning.
Investigative officer also admitted during cross
examination about the statement of accused
brother regarding mental illness. Investigative
officer also admitted that medical examiner
who examined the accused after the incident
advised psychiatric consultation. He also
admitted that he has knowledge of the family
history of mental illness.
The various aspects highlighted from the
evidence was enough to gives rise to a
10
Live
Law
News
15
Jun
2021
https://hindi.livelaw.in/category/top-stories/kerala-
high-court-acquits-accused-in-a-triple-murder-case-
for-failure-of-investigation-officer-to-ascertain-
mental-stability-175738, Accessed on 12 Aug-2021
reasonable doubt about the mental condition
of the accused at the time of incident, that
entitled her to benefit of the exception.
Court has noticed that if the investigative
officer was fair enough and wanted to bring
the true facts he would have made and inquiry
into the aspect of the mental state of the
accused. Peculiar nature of the crime coupled
with the factors brought out during
investigation ought to have been account.
Failure to the same creates serious infirmity in
the prosecution that would entitle the accused
to benefit of doubt.
Negligence or unawareness amonggeneral
population
Large number of people in India still not
consulting hospitals or proper medical
practitioners for mental illness either due to
unavailability,
unawareness
or
stigma.
According to a study conducted in 7 North
Indian states by Cosmos Institute of Mental
Health and Behavioral Sciences (CIMBS) and
WFMH
11
, Nearly half of the population is
neither aware about mental health issues nor
has access to a mental health facility within a
20km radius. There are few more problems
related to the issue of treatment and
documentation or record keeping that hinders
the justice process when comes to providing
evidence of undergoing mental illness.
i.
Many times if they consult mental
health practitioners obtain medicine
initially they keep all the records but
gradually they tear, missed or destroy
it.
ii.
Most of the people in the country are
still either initially or during full course
http://timesofindia.indiatimes.com/articleshow/71
512849.cms?utm_source=contentofinterest&utm_
medium=text&utm_campaign=cppst Accessed on
13Aug-2021
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38
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
August 31, 2021 |
Pages:
33-39
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue08-07
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of illness visiting faith healers for
treatment of mental illness.
iii.
Most of the people either literate or
illiterate still believe that there is
nothing like mental illness. They
strongly believe that these people are
doing drama or acting to get some
short of benefit or to achieve
secondary gain.
iv.
Mental illness and psychiatry is still very
specialized field in the country.
Therefore, knowledge of different
mental disorders is limited to the
mental health professionals or medical
professional.
v.
Despite of several efforts from Bauru
of Police Research and Development
(BPR&D), and Ministry of Home Affairs
(MHA), Government of India to provide
training regarding mental illness, most
of the law enforcement personnel are
still unaware about the mental
illnesses. Hence, they are also behaving
same as other people of the society
towards mental illness.
DISCUSSION
On the basis of above findings it can be said
that law has all the provisions to help a
mentally ill person. Either their families are
able to support or not system has its own
provisions where one can get free legal aid
and it is responsibility of the state to make
necessary
arrangements.
India
as
12
United Nations.Convention on the Rights of Persons
with Disabilities.
Geneva: United Nations; 2006.
13
Kelly B. D. (2016). Mental health, mental illness,
and human rights in India and elsewhere: What are
we aiming for?.
Indian journal of psychiatry
,
58
(Suppl
2),
S168–S174.
https://doi.org/10.4103/0019-
5545.196822.
14
Therapeutic jurisprudence is an interdisciplinary
method of legal scholarship that aims to reform the
law in order to positively impact the psychological
permanent member of United Nation has
participated in the Convention on the
Rights of Persons with Disabilities (CRPD)
12
which was adapted by the United Nations
(UN) in 2006 and ratified by India in 2007
13
.
MHC Act, 2017 emphasized the need to
enhance the level of social justice
experienced for the mentally ill people.It
also guides and directs the primary and
secondary stake holders of the criminal
justice system regarding how to deal with
a person who seems to be suffering from
mental illness or unsoundness of mind.
Criminal Justice Procedure are also
described that how to deal with a person of
mentally ill who comes in conflict with law.
However, on the basis of above two cases
it can be inferred that still the police
officers and the magistrates are not much
aware of such mental conditions. And
making serious mistakes and violating
basic human rights. India as a words
highest democratic country need to look
into these issues and work on the
improvement of human right problems
faced by mentally ill people.
CONCLUSION
After discussion and findings, it has been clear
that the training and awareness for the mental
illness should be designed and implemented
for the basic pillars of criminal justice system. It
is also desirable to enact therapeutic
jurisprudential
14
intervention
for
better
outcomes. The other measure such as case
management service by mental health
professional for liaison will also be benefiting
well-being of the accused person. In 1990, law
professors David Wexler and Bruce Winick coined
the
term
“therapeutic
jurisprudence”
to
acknowledge the sociopsychological consequences
of any legal action and that these consequences can
be impacted by the interpretation of substantive
legal rules and procedures. See,
Therapeutic
Jurisprudence: The Law as a Therapeutic Agent
by
David Wexler (1990).
The USA Journals Volume 03 Issue 08-2021
39
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
August 31, 2021 |
Pages:
33-39
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue08-07
I
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F
ACTOR
2021:
5.
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to the trial of psychologically disturbed or
unsound accused related cases. In general
public
and
authority,
the
negative
consequences by mental patient and criminal
violence must be reduced by awareness
programs time to time. Further the proper
implementation of the laws and policies should
also be look by the government with periodical
assessment.
REFERENCES
1.
Mental Health Care Act.2017. Ministry of
Law and Justice, New Delhi.
2.
The Code of Criminal Procedure, 1973,
Ministry of Law and Justice, New Delhi.
3.
Gaur J. R. and Tripathi, M. A. “Insanity,
mental trauma, crime and the law”,
International Journal of Management and
Social Science Research Review, 8, I2,
(2021).
4.
Tripathi, M. A. and Tripathi, A. K. Paradigm
Shift in Indian Legislature with Reference
to Criminal Responsibility of an Unsound
Mind, "Pragyaan: Journal of Law" 10, 1,
(2020).
5.
AIR 1970 All 51, 1970 CriLJ 132.
6.
Prins S.J. and L. Draper. 2009. Improving
Outcomes for People with Mental Illness
Under
Community
Corrections
Supervision: A Guide to Research
Informed Policy and Practice.
7.
AIR 1966 SC 1631) CRIMINAL APPEAL
NO.474 OF 2019.
8.
Gujarat vsManjuben, Gujarat High Court,
March
18,2019,Retrieved
from
https://indiankanoon.org/
on
21st
May,2020.
9.
The Indian Evidence Act 1872 Chapter-VII.
10.
Live Law News 15 Jun 2021.
https://hindi.livelaw.in/category/top-
stories/kerala-high-court-acquits-accused-
in-a-triple-murder-case-for-failure-of-
investigation-officer-to-ascertain-mental-
stability-175738, Accessed on 12 Aug-2021.
11.
http://timesofindia.indiatimes.com/article
show/71512849.cms?utm_source=content
ofinterest&utm_medium=text&utm_cam
paign=cppst Accessed on 13Aug-2021.
12.
United Nations.Convention on the Rights
of Persons with Disabilities. Geneva:
United Nations; 2006.
13.
Kelly B. D. (2016). Mental health, mental
illness, and human rights in India and
elsewhere: What are we aiming for?.
Indian journal of psychiatry, 58(Suppl 2),
S168–S174. https://doi.org/10.4103/0019-
5545.196822.
14.
Therapeutic
jurisprudence
is
an
interdisciplinary
method
of
legal
scholarship that aims to reform the law in
order
to
positively
impact
the
psychological well-being of the accused
person. In 1990, law professors David
Wexler and Bruce Winick coined the term
“therapeutic
jurisprudence”
to
acknowledge
the
sociopsychological
consequences of any legal action and that
these consequences can be impacted by
the interpretation of substantive legal
rules and procedures. See, Therapeutic
Jurisprudence: The Law as a Therapeutic
Agent by David Wexler (1990).
