State of H.P. Vs. Bhupesh Kumar Alias Kaka Alias Tinku

Decided On : Apr-23-2008

Court : Himachal Pradesh

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			'judgement' => '<p style="text-align: justify;">Surjit Singh, J.</p><p style="text-align: justify;">1. The case has a chequered history. Respondent Bhupesh Kumar was challaned, under Sections 302 and 307 Indian Penal Code, for allegedly murdering Poonam Sharma and making an attempt on the lives of two other persons named Vivek and Raj Kumar.</p><p style="text-align: justify;">2. It appears that when the case was filed in the Magisterial Court, a question was raised that the respondent was not capable of defending himself owing to un-soundness of mind. The Magistrate, without making inquiry into the question in accordance with the provision of Section 328 of the Code of Criminal Procedure, committed the case to the Sessions Court. The Sessions Court charged the accused-respondent with the aforesaid offences and examined the witnesses produced by the prosecution. 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The Sessions Court assigned the matter to the Additional Sessions Judge.</p><p style="text-align: justify;">3. From the record of the Additional Sessions Judge, it appears that even before the charge was framed by him, question was again raised that the respondent was of unsound mind and hence in-capable of making his defense. The Additional Sessions Judge heard the parties on 20-4-1992 on the question whether the respondent was capable of defending himself or not. At the same time he heard arguments whether prima facie case for framing charge and putting the respondent on trial was made out or not. Order was passed by the Additional Sessions Judge on 10-6-1992, based on the aforesaid arguments. The respondent was ordered to be charged with offences under Sections 302 and 307, I.P.C. However, no reference was made in the said order to the arguments made by the parties on the question whether the respondent was of unsound mind or capable of defending himself nor was any finding recorded, if the respondent was of sound mind. Thereafter statements of the prosecution witnesses were recorded. When the Court sought to examine the respondent, under Section 313 of the Code of Criminal Procedure, he again gave answers which made no sense. Additional Sessions Judge got the respondent medically examined from a Psychiatrist of Indira Gandhi Medical College, Shimla, who reported that the respondent was not suffering from any active psychiatric ailment. Additional Sessions Judge noticed the report, per his zimni order dated 5-6-1993, but did not record any finding if the respondent was capable of defending himself or not and proceeded to record the statement of the respondent, under Section 313 of the Code of Criminal Procedure, and thereafter recorded the defense evidence and acquitted the respondent holding that he was insane at the time of commission of the offence and because of that insanity, he was deprived of mental capacity to understand the nature of his acts.</p><p style="text-align: justify;">4. Even though before us the Counsel representing the respondent did not urge that the trial is vitiated on account of the Committal Magistrate having not complied with the mandate of Section 328 of the Code of Criminal Procedure or the Additional Sessions Judge having not conducted enquiry under Section 329 Cr.P.C., after observing that the respondent was giving irrelevant answers when sought to be examined under Section 313 of the Code of Criminal Procedure, we felt that in case the appeal filed by the State, challenging the acquittal of the respondent were accepted and the respondent convicted, the conviction would be bad on account of vitiation of trial for the aforesaid failures on the part of committal Magistrate and Additional Sessions Judge to comply the mandate of Section 328 and Section 329, Cr.P.C, respectively.</p><p style="text-align: justify;">5. From the facts, as narrated above it is clear that the Committal Magistrate did not conduct the inquiry, as per requirement of Section 328 Cr.P.C. According to the aforesaid provision of the Code of Criminal Procedure, the Magistrate was required to have got the respondent examined by a Civil Surgeon of the District or such other Medical Officer as the State Government may have directed and after that he was required to examine such Civil Surgeon or the Medical Officer as a witness and after that to give finding whether the respondent was capable of defending himself or not because of his mental state. The respondent was not got examined either from the Civil Surgeon or any Medical Officer. The Magistrate adopted a novel procedure, not known to the law. He recorded the statements of the respondent, his father and the Counsel and gave the finding that he was capable of defending himself. The Magistrate thus gave a complete go-bye to the mandatory inquiry, prescribed under Section 328 of the Code of Criminal Procedure. This very fact vitiates the entire trial.</p><p style="text-align: justify;">6. Further, the Additional Sessions Judge, who during the course of the trial observed that the respondent was not behaving as a sane person, also did not follow the procedure prescribed under Section 329 of the Code of Criminal Procedure. He only sent for the report of psychiatrist, noticed that report and then continued with the trial, without even recording that the respondent possessed sound mind and was capable of defending himself.</p><p style="text-align: justify;">7. In view of what has been stated herein above, the judgment of the trial Court is set-aside as the entire trial is vitiated on account of non-compliance of the mandatory provision of Section 328 of the Code of Criminal Procedure by the Magistrate and Section 329 of the Code by the Additional Sessions Judge. The case is remanded to the Committal Magistrate with a direction to hold an inquiry into the question whether the respondent is of sound mind and capable of defending himself, at the trial, in accordance with the mandate of Section 328 Cr.P.C. and to proceed further in the matter, as per law. Parties are directed to appear before the concerned Judicial Magistrate on 2-5-2008.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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The Sessions Court assigned the matter to the Additional Sessions Judge.</p><p style="text-align: justify;">3. From the record of the Additional Sessions Judge, it appears that even before the charge was framed by him, question was again raised that the respondent was of unsound mind and hence in-capable of making his defense. The Additional Sessions Judge heard the parties on 20-4-1992 on the question whether the respondent was capable of defending himself or not. At the same time he heard arguments whether prima facie case for framing charge and putting the respondent on trial was made out or not. Order was passed by the Additional Sessions Judge on 10-6-1992, based on the aforesaid arguments. The respondent was ordered to be charged with offences under Sections 302 and 307, I.P.C. However, no reference was made in the said order to the arguments made by the parties on the question whether the respondent was of unsound mind or capable of defending himself nor was any finding recorded, if the respondent was of sound mind. Thereafter statements of the prosecution witnesses were recorded. When the Court sought to examine the respondent, under Section 313 of the Code of Criminal Procedure, he again gave answers which made no sense. Additional Sessions Judge got the respondent medically examined from a Psychiatrist of Indira Gandhi Medical College, Shimla, who reported that the respondent was not suffering from any active psychiatric ailment. Additional Sessions Judge noticed the report, per his zimni order dated 5-6-1993, but did not record any finding if the respondent was capable of defending himself or not and proceeded to record the statement of the respondent, under Section 313 of the Code of Criminal Procedure, and thereafter recorded the defense evidence and acquitted the respondent holding that he was insane at the time of commission of the offence and because of that insanity, he was deprived of mental capacity to understand the nature of his acts.</p><p style="text-align: justify;">4. Even though before us the Counsel representing the respondent did not urge that the trial is vitiated on account of the Committal Magistrate having not complied with the mandate of Section 328 of the Code of Criminal Procedure or the Additional Sessions Judge having not conducted enquiry under Section 329 Cr.P.C., after observing that the respondent was giving irrelevant answers when sought to be examined under Section 313 of the Code of Criminal Procedure, we felt that in case the appeal filed by the State, challenging the acquittal of the respondent were accepted and the respondent convicted, the conviction would be bad on account of vitiation of trial for the aforesaid failures on the part of committal Magistrate and Additional Sessions Judge to comply the mandate of Section 328 and Section 329, Cr.P.C, respectively.</p><p style="text-align: justify;">5. From the facts, as narrated above it is clear that the Committal Magistrate did not conduct the inquiry, as per requirement of Section 328 Cr.P.C. According to the aforesaid provision of the Code of Criminal Procedure, the Magistrate was required to have got the respondent examined by a Civil Surgeon of the District or such other Medical Officer as the State Government may have directed and after that he was required to examine such Civil Surgeon or the Medical Officer as a witness and after that to give finding whether the respondent was capable of defending himself or not because of his mental state. The respondent was not got examined either from the Civil Surgeon or any Medical Officer. The Magistrate adopted a novel procedure, not known to the law. He recorded the statements of the respondent, his father and the Counsel and gave the finding that he was capable of defending himself. The Magistrate thus gave a complete go-bye to the mandatory inquiry, prescribed under Section 328 of the Code of Criminal Procedure. This very fact vitiates the entire trial.</p><p style="text-align: justify;">6. Further, the Additional Sessions Judge, who during the course of the trial observed that the respondent was not behaving as a sane person, also did not follow the procedure prescribed under Section 329 of the Code of Criminal Procedure. He only sent for the report of psychiatrist, noticed that report and then continued with the trial, without even recording that the respondent possessed sound mind and was capable of defending himself.</p><p style="text-align: justify;">7. In view of what has been stated herein above, the judgment of the trial Court is set-aside as the entire trial is vitiated on account of non-compliance of the mandatory provision of Section 328 of the Code of Criminal Procedure by the Magistrate and Section 329 of the Code by the Additional Sessions Judge. 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			'casename' => 'State of H.P. Vs. Bhupesh Kumar Alias Kaka Alias Tinku',
			'casenote' => ' - CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 14, Rule 2 [As amended by Amending Act of 1976]: [V.K. Gupta, CJ, Deepak Gupta & Surjit Singh, JJ] Preliminary issue of law and fact  Court framing all issues both of law and facts together and also  tried all the issues together, including the issue relating to jurisdiction of Court  Held, Except in situations perceived or warranted under sub-rule (2) of Rule 2 of Order 14 where a  Court in fact frames only issues of law in the first instance and postpones settlement of other issues, clearly and explicitly in situations where the Court has framed all issues together, both of law as well as facts and has also tried all these issues together, it is not open to the Court to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision. This course of action is not available to a Court because sub-rule (1) does not permit the  Court to adopt any such principle of severability and to dispose of a suit only on preliminary issues, or what can be termed as issues of law. Sub-rule (1)  clearly mandates that in a situation contemplated under it, where all the issues have been together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the Court covering all the issues framed in the suit.',
			'caseanalysis' => null,
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			'court' => 'Himachal Pradesh',
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			'judge' => ' Surjit Singh and; Surinder Singh, JJ.',
			'judgement' => '<p style="text-align: justify;">Surjit Singh, J.</p><p style="text-align: justify;">1. The case has a chequered history. Respondent Bhupesh Kumar was challaned, under Sections 302 and 307 Indian Penal Code, for allegedly murdering Poonam Sharma and making an attempt on the lives of two other persons named Vivek and Raj Kumar.</p><p style="text-align: justify;">2. It appears that when the case was filed in the Magisterial Court, a question was raised that the respondent was not capable of defending himself owing to un-soundness of mind. The Magistrate, without making inquiry into the question in accordance with the provision of Section 328 of the Code of Criminal Procedure, committed the case to the Sessions Court. The Sessions Court charged the accused-respondent with the aforesaid offences and examined the witnesses produced by the prosecution. When the respondent was sought to be examined under Section 313 of the Code of Criminal Procedure, he gave answers (to the questions put by the Court) which were irrelevant. The Sessions Court then made an observation that the respondent appeared to be insane and passed an order that the entire trial had been vitiated because the Magistrate had committed the case without enquiring into the question whether the respondent possessed a sound mind to defend himself at the trial. Magistrate was directed to make inquiry into the aforesaid question and to proceed further in the matter in accordance with law. The Magistrate without getting the respondent examined from Civil Surgeon of the District or any other Medical Officer authorized for the purpose of Section 328 Cr.P.C., passed the order, on the basis of statements made before him by the respondent, his father and the defense Counsel that he was capable of defending himself and committed the case to the Sessions Court. The Sessions Court assigned the matter to the Additional Sessions Judge.</p><p style="text-align: justify;">3. From the record of the Additional Sessions Judge, it appears that even before the charge was framed by him, question was again raised that the respondent was of unsound mind and hence in-capable of making his defense. The Additional Sessions Judge heard the parties on 20-4-1992 on the question whether the respondent was capable of defending himself or not. At the same time he heard arguments whether prima facie case for framing charge and putting the respondent on trial was made out or not. Order was passed by the Additional Sessions Judge on 10-6-1992, based on the aforesaid arguments. The respondent was ordered to be charged with offences under Sections 302 and 307, I.P.C. However, no reference was made in the said order to the arguments made by the parties on the question whether the respondent was of unsound mind or capable of defending himself nor was any finding recorded, if the respondent was of sound mind. Thereafter statements of the prosecution witnesses were recorded. When the Court sought to examine the respondent, under Section 313 of the Code of Criminal Procedure, he again gave answers which made no sense. Additional Sessions Judge got the respondent medically examined from a Psychiatrist of Indira Gandhi Medical College, Shimla, who reported that the respondent was not suffering from any active psychiatric ailment. Additional Sessions Judge noticed the report, per his zimni order dated 5-6-1993, but did not record any finding if the respondent was capable of defending himself or not and proceeded to record the statement of the respondent, under Section 313 of the Code of Criminal Procedure, and thereafter recorded the defense evidence and acquitted the respondent holding that he was insane at the time of commission of the offence and because of that insanity, he was deprived of mental capacity to understand the nature of his acts.</p><p style="text-align: justify;">4. Even though before us the Counsel representing the respondent did not urge that the trial is vitiated on account of the Committal Magistrate having not complied with the mandate of Section 328 of the Code of Criminal Procedure or the Additional Sessions Judge having not conducted enquiry under Section 329 Cr.P.C., after observing that the respondent was giving irrelevant answers when sought to be examined under Section 313 of the Code of Criminal Procedure, we felt that in case the appeal filed by the State, challenging the acquittal of the respondent were accepted and the respondent convicted, the conviction would be bad on account of vitiation of trial for the aforesaid failures on the part of committal Magistrate and Additional Sessions Judge to comply the mandate of Section 328 and Section 329, Cr.P.C, respectively.</p><p style="text-align: justify;">5. From the facts, as narrated above it is clear that the Committal Magistrate did not conduct the inquiry, as per requirement of Section 328 Cr.P.C. According to the aforesaid provision of the Code of Criminal Procedure, the Magistrate was required to have got the respondent examined by a Civil Surgeon of the District or such other Medical Officer as the State Government may have directed and after that he was required to examine such Civil Surgeon or the Medical Officer as a witness and after that to give finding whether the respondent was capable of defending himself or not because of his mental state. The respondent was not got examined either from the Civil Surgeon or any Medical Officer. The Magistrate adopted a novel procedure, not known to the law. He recorded the statements of the respondent, his father and the Counsel and gave the finding that he was capable of defending himself. The Magistrate thus gave a complete go-bye to the mandatory inquiry, prescribed under Section 328 of the Code of Criminal Procedure. This very fact vitiates the entire trial.</p><p style="text-align: justify;">6. Further, the Additional Sessions Judge, who during the course of the trial observed that the respondent was not behaving as a sane person, also did not follow the procedure prescribed under Section 329 of the Code of Criminal Procedure. He only sent for the report of psychiatrist, noticed that report and then continued with the trial, without even recording that the respondent possessed sound mind and was capable of defending himself.</p><p style="text-align: justify;">7. In view of what has been stated herein above, the judgment of the trial Court is set-aside as the entire trial is vitiated on account of non-compliance of the mandatory provision of Section 328 of the Code of Criminal Procedure by the Magistrate and Section 329 of the Code by the Additional Sessions Judge. The case is remanded to the Committal Magistrate with a direction to hold an inquiry into the question whether the respondent is of sound mind and capable of defending himself, at the trial, in accordance with the mandate of Section 328 Cr.P.C. and to proceed further in the matter, as per law. Parties are directed to appear before the concerned Judicial Magistrate on 2-5-2008.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'judgement' => '<p style="text-align: justify;">Surjit Singh, J.</p><p style="text-align: justify;">1. The case has a chequered history. Respondent Bhupesh Kumar was challaned, under Sections 302 and 307 Indian Penal Code, for allegedly murdering Poonam Sharma and making an attempt on the lives of two other persons named Vivek and Raj Kumar.</p><p style="text-align: justify;">2. It appears that when the case was filed in the Magisterial Court, a question was raised that the respondent was not capable of defending himself owing to un-soundness of mind. The Magistrate, without making inquiry into the question in accordance with the provision of Section 328 of the Code of Criminal Procedure, committed the case to the Sessions Court. The Sessions Court charged the accused-respondent with the aforesaid offences and examined the witnesses produced by the prosecution. When the respondent was sought to be examined under Section 313 of the Code of Criminal Procedure, he gave answers (to the questions put by the Court) which were irrelevant. The Sessions Court then made an observation that the respondent appeared to be insane and passed an order that the entire trial had been vitiated because the Magistrate had committed the case without enquiring into the question whether the respondent possessed a sound mind to defend himself at the trial. Magistrate was directed to make inquiry into the aforesaid question and to proceed further in the matter in accordance with law. The Magistrate without getting the respondent examined from Civil Surgeon of the District or any other Medical Officer authorized for the purpose of Section 328 Cr.P.C., passed the order, on the basis of statements made before him by the respondent, his father and the defense Counsel that he was capable of defending himself and committed the case to the Sessions Court. The Sessions Court assigned the matter to the Additional Sessions Judge.</p><p style="text-align: justify;">3. From the record of the Additional Sessions Judge, it appears that even before the charge was framed by him, question was again raised that the respondent was of unsound mind and hence in-capable of making his defense. The Additional Sessions Judge heard the parties on 20-4-1992 on the question whether the respondent was capable of defending himself or not. At the same time he heard arguments whether prima facie case for framing charge and putting the respondent on trial was made out or not. Order was passed by the Additional Sessions Judge on 10-6-1992, based on the aforesaid arguments. The respondent was ordered to be charged with offences under Sections 302 and 307, I.P.C. 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From the facts, as narrated above it is clear that the Committal Magistrate did not conduct the inquiry, as per requirement of Section 328 Cr.P.C. According to the aforesaid provision of the Code of Criminal Procedure, the Magistrate was required to have got the respondent examined by a Civil Surgeon of the District or such other Medical Officer as the State Government may have directed and after that he was required to examine such Civil Surgeon or the Medical Officer as a witness and after that to give finding whether the respondent was capable of defending himself or not because of his mental state. The respondent was not got examined either from the Civil Surgeon or any Medical Officer. The Magistrate adopted a novel procedure, not known to the law. He recorded the statements of the respondent, his father and the Counsel and gave the finding that he was capable of defending himself. The Magistrate thus gave a complete go-bye to the mandatory inquiry, prescribed under Section 328 of the Code of Criminal Procedure. This very fact vitiates the entire trial.</p><p style="text-align: justify;">6. Further, the Additional Sessions Judge, who during the course of the trial observed that the respondent was not behaving as a sane person, also did not follow the procedure prescribed under Section 329 of the Code of Criminal Procedure. He only sent for the report of psychiatrist, noticed that report and then continued with the trial, without even recording that the respondent possessed sound mind and was capable of defending himself.</p><p style="text-align: justify;">7. In view of what has been stated herein above, the judgment of the trial Court is set-aside as the entire trial is vitiated on account of non-compliance of the mandatory provision of Section 328 of the Code of Criminal Procedure by the Magistrate and Section 329 of the Code by the Additional Sessions Judge. The case is remanded to the Committal Magistrate with a direction to hold an inquiry into the question whether the respondent is of sound mind and capable of defending himself, at the trial, in accordance with the mandate of Section 328 Cr.P.C. and to proceed further in the matter, as per law. Parties are directed to appear before the concerned Judicial Magistrate on 2-5-2008.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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LAW: Section 328, Section 313, Section 328 Cr, Section 313, Section 313, Section 328, Section 329 Cr, Section 313, Section 328 and Section 329, Section 328 Cr, Section 328, Section 329, Section 328, Section 329, Section 328 Cr

GPE: Singh, P.C., P.C., Cr, P.C.

NORP: J.1

CARDINAL: 307, two, 10-6-1992, 307, 5-6-1993, 2

PERSON: Poonam Sharma, Vivek, facie, Shimla, P.C., Civil Surgeon

ORG: the Magisterial Court, un, Magistrate, the Sessions Court, The Sessions Court, Court, The Sessions Court, Magistrate, Magistrate, Civil Surgeon, the Sessions Court, The Sessions Court, the Additional Sessions Judge.3, the Additional Sessions, the Additional Sessions, Court, Indira Gandhi Medical College, Counsel, the Committal Magistrate, State, Magistrate, Additional Sessions, the Committal Magistrate, Magistrate, a Civil Surgeon, the State Government, the Civil Surgeon, Magistrate, Magistrate, the Additional Sessions, Court, Magistrate, the Committal Magistrate, Judicial Magistrate

DATE: 20-4-1992