IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.08.2022

CORAM :

THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

Crl.R.C.No.940 of 2022 and

Crl.M.P.Nos.9784 & 9787 of 2022

T.Dhanasekar Vs State rep. by The Inspector of Police V6 Kolathur Police Station	..	Petitioner
Chennai.	..	Respondent

Prayer: Criminal Revision Case filed under Section 397 read with 401 Code of Criminal Procedure, to set aside the impugned order dated 25.05.2022 passed in Crl.M.P.No.6099 of 2021 in S.C.No.32 of 2021 by the learned Sessions Judge, Mahalir Neethimandram, Allikulam, Chennai.

For Petitioner                            :        Mr.G.R.Hari

For Respondent                           :        Mr.S.Vinoth Kumar

Government Advocate (Crl. Side)

O R D E R

The revision is filed aggrieved by the order of the learned Sessions

Judge, Mahalir Neethimandram, Allikulam, Chennai dated 25.05.2022 in Crl.M.P.No.6099 of 2021 in S.C.No.32 of 2021, in and by which the learned Judge decided the application filed by the petitioner / accused in this case under Section 329 of the Code of Criminal Procedure.

2. The petitioner is facing trial for the offence under Section 302 of the Indian Penal Code. The allegation against him is that on 03.12.2020, between 05.00AM to 06.00AM, at his house, he pushed down his wife, sat on her and strangulated her neck and when the child, aged about thirteen years, tried to prevent him, he pushed down the child also and the child immediately called the grandparents through mobile phone and the grandparents immediately rushed to the house and when they went, the door was locked from inside. They went to the window and the child opened the window door and upon instructions of the grandparents and the house-owner, handed over an iron rod from inside the house, with which the lock in the grill door was opened and the main door was broken and when they entered the house, they found the wife lying unconscious and the petitioner sitting still in a chair. Immediately, the wife was taken to the hospital and the doctor pronounced her dead and hence the charge.
3. On 26.03.2021, the petitioner filed the present application stating that the petitioner suffers from the mental illness to an extent that he is not in a position to undergo the trial. The prosecution filed counter on 26.06.2021. After the prosecution filed counter affidavit, the Trial Court examined the accused by putting forth certain questions, as to what was his name etc and tried to ascertain whether the accused was able to understand the questions of the Court and answer the same. Thereafter, by the letter dated 31.8.2021, the Trial Court also referred the accused for evaluation by an expert in the Institute of Mental Health, Kilpauk. After admitting the accused as In-Patient and observing him, the Medical Officer, the Civil

Assistant Surgeon, Institute of Mental Health and the Unit Chief, the Senior Civil Surgeon, Institute of Mental Health, Kilpauk, Chennai, both being experts in the filed, submitted their observation report and the report reads as follows:

“This patient, Mr.Dhanasekar was registered in

Institute of Mental Health on 05.02.2020.

On mental status examination, he had hearing voices, depressed mood and crying spells. After detailed evaluation and workup, he was diagnosed as a case of Depression with Psychotic features and he was treated for the same.

Currently he is oriented to time, place and person and he can understand the Court procedures and fit to stand trial.”

It is seen that the petitioner also underwent a MRI Scan of Brain and it was certified by the Assistant Professor that there was no abnormality detected in the Brain. Thereafter, on further objection on the side of the petitioner / accused, the learned Trial Court again referred the matter by its communication dated 22.09.2021 to the Mental Health Department by directing the Mental Health Review Board to re-examine the accused. After such exercise, again the Board gave its observation report, which is extracted as follows:

“This patient, Mr.Dhanasekar was registered in

Institute of Mental Health on 05.02.2020.

He has been reporting in OPD from 31.12.2021 for 10 days before Medical Officer.

On Serial mental status examination, he had low mood, hearing voices at times, he was diagnosed as a case of depression with psychotic features and was treated for the same.

Currently he is oriented to time, place, person and he can understand the charges against him and he is fit to stand trial.”

Based on the said two reports and upon the answers given by the petitioner / accused in the examination of the Court, the Trial Court found that the accused is not of unsound mind and is fit to undergo Trial and accordingly answered the question and posed the matter for proceeding further with the trial. Aggrieved by the same, the present revision is filed.

4. Before this Court, the submission of learned counsel for the petitioner is two fold. Firstly, he would submit that the procedure adopted by the Trial Court as well as by the experts is erroneous in law. He would further submit that the Trial Court cannot directly address the question as to the fitness of the person to undergo the trial to the experts and in turn should insist them to examine and determine his mental condition alone and based on their opinion and independently decide for itself whether the person is fit to undergo the Trial or not and therefore, he would submit that the term of reference to the expert itself is erroneous. Secondly, by attacking the reports, he would submit that the observation reports did not delineate and explain what is the procedure which was followed by the experts and what are the tests done by them in detail, except to say “Mental Status Examination” which is a very general term and therefore, the individual expert in the first instance and also the Mental Board, did not follow any proper procedure while determining the condition of the petitioner. Therefore, he would submit that there was no proper

examination of the petitioner / accused.

5. He would further submit that, in this context, the Trial Court ought not to have ventured to examine the accused himself and come to the conclusion as to his mental status. Therefore, both the procedures adopted by the Trial Court is erroneous. This apart, he would also further submit that after the examination by the experts, subsequently, the petitioner accused is also undergoing treatment in a private hospital. When a Brain Scan was taken in a private facility, it has shown abnormalities in his Brain. The private Doctors, with whom the petitioner is taking treatment have suspected that the petitioner / accused is a case of Neurodegenerative Disorder (SCA-17), which would result in degeneration of his cognitive abilities including the Intelligent Quotient and therefore, the same will have direct bearing in determining whether the petitioner / accused is fit to undergo the trial or not. The said aspect was totally omitted to be considered by the experts to whom the matter was referred by the Trial Court. This apart, he would submit that from the medical report given by the Savitha Medical College Hospital, it would be seen that even the diagnosed disease differs. As far as the diagnosis by the experts in Savitha Medical College Hospital is concerned, the accused was diagnosed as suffering from Schizophrenia. Whereas, the experts referred by the Trial Court have diagnosed the accused as Depression with Psychotic Features. Therefore, there is serious prejudice as far as the accused is concerned in the question of determining whether he is fit of comprehending the facts and the process of trial and whether he is in a position to formulate the defence for himself so that the trial is fair.
6. Learned counsel had placed the judgment of this Court in Kaliyappan Represented by his father Muniyappan vs State^[1], in and by which this Court has gone into the question of unsoundness of mind in detail and by appointing an amicus curiae to examine all the aspects relating to the same and has given a detailed ruling. He would submit that from the reading of the said judgment, the findings of the Trial Court that the petitioner is not of unsoundness of mind, cannot be sustained and therefore, he would submit that the trial cannot be proceeded further unless the petitioner is examined by appropriate experts. He would further submit that the National Institute of Mental Health and Allied Sciences, Bangalore (NIMHANS), is the most competent body and has facilities of all the expertise to diagnose these kinds of extraordinary diseases which are there in the petitioner / accused and therefore, he would submit that the petitioner can be referred to a team of experts to the said institution so that a fair and proper decision can be taken as to his mental status and whether he would be in a fit position to undergo trial.
7. Upon the insistence of this Court, learned counsel has also filed a detailed memo as to the nature of questions to be addressed to the Medical Panel and according to him, instead of directly asking whether the accused would be fit to undergo trial, the following questions should be addressed to the Panel:

“a. What is the neurological diagnosis of the petitioner?

1. How is the current cognitive functions of the accused, including attention, comprehension, memory, planning and organization?
2. Is there any decline in IQ of the petitioner due to any disease?
3. Whether the accused suffers from any

Neurodegenerative disorder?”

8. Per Contra, learned Government Advocate (Crl. Side) would submit that, in this case, the accused is facing a serious charge of murdering his own wife. The accused is an alcoholic. On account of which, he is suffering from Depression and Psychotic Diseases. But, he is in a position to comprehend as to what is a crime and what are the procedures which are going on in the trial. As a matter of fact, a perusal of the questions put forth by the Trial Court and the answers given by the accused, it would be clear that his mental illness is not to the extent that he cannot face the trial or trial should be postponed. The Trial Court had taken extraordinary care in referring the petitioner twice to the concerned experts and obtaining opinion and the efforts of the Trial Court is appreciated. He would submit that it is only the observation report, which is placed before the Trial Court and if the details as to the nature of the tests etc, if would have been called for by the Trial Court or by learned counsel appearing on behalf of the petitioner / accused, the same would have been produced by the experts and no fault whatsoever can be found by the diagnosis of the experts. He would submit that nothing prevented the petitioner / accused to examine the private expert to give any contra opinion before the Trial Court. Therefore, in the absence of the same, the Trial Court was right in taking into consideration of the experts’ opinion, and its own interaction with the accused while determining the question that the trial can be proceeded further. Therefore, he would submit that the issue has been rightly determined by the Trial Court in accordance with the provisions under Section 329 of the Code of Criminal Procedure and would pray that there is no merits in the revision.
9. I have considered the rival submissions made on either side and perused the material records of this case.
10. Apart from the material records of this case, I have also gone through the judgment of this Court in Kaliyappan (supra) in detail. This apart, learned counsel also had produced the medical literature relating to the alleged disease of the petitioner. I have gone though the same also.
11. At the outset, the issue relating to mental illness has to be approached with due sensitivity by this Court. As a matter of fact, the Trial Court has also approached the entire issue with required seriousness and sensitivity. But, however, only the finding of the Trial Court in the teeth of the observation report which determines that there is some mental illness on the accused that the person is not of an unsound mind alone cannot be accepted by this Court. The question, what is “unsoundness of mind” has been dealt with in detail by the aforesaid judgment of this Court. It is useful to extract paragraph 22 and 23 of the said judgment which reads as follows:

“22. The interesting aspect about Section 328 of the Cr.P.C. lies in the different sets of procedure contemplated for inquires against persons of unsound mind and those suffering from mental retardation. The expression “unsoundness of mind” occurring in Sections 328 and 329 Cr.P.C has not been defined anywhere. Under the Indian Lunacy Act, 1912, a lunatic was defined under Section 3(5) to mean an idiot or a person of unsound mind. The 1912 Act was repealed by the Mental Health Act, 1987. The

definition of “Lunatic”was replaced by a definition of mental illness which reads as under:

Section 2(1):

““Mentally ill person” means a person who is in need of treatment by reason of any mental disorder other than mental retardation”.

23. The The Mental Health Act, 1987, has now been repealed by the Mental Healthcare Act, 2017. Section 2(s) contains an expanded definition of the expression “mental illness”which runs as under:

““mental illness” means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete developments of mind of a person, specially characterised by sub-normality of intelligence;””

Therefore, it can be seen that the expression “unsoundness of mind” is neither defined by the Indian Penal Code nor in any other statute. The Indian Lunacy Act, 1912, contained the definition of the word “lunatic” and the Mental Health Act, 1987, has been now repeated by the Mental Health Care Act, 2017, now, what is on record is only the definition of the word “mental illness”, which is extracted above. Therefore, it can be seen that the petitioner is also mentally ill namely, suffering from Depression with Psychotic Disorder.

12. According to learned counsel for the petitioner / accused, the mental illness of the accused is termed as “Schizophrenia”. Apart from the same on a subsequent examination of the Brain of the petitioner, where the impressions are as follows:

“Impression:

• Early Cerebral and Cerebellar atrophy.
• Few chronic lacunar infarcts involving the

bilateral frontoparietal subcortical white matter.

• No evidence of acute infarcts / no bleed / no

SOL.

• Bilateral maxillary and ethmoidal sinusitis.
• Bilateral normal 7th and 8th nerve complexes.
• No evidence of bilateral hippocampal or mesial emporal scierosis.
• Normal optic nerves optic chaism optic tracts and optic radiation.”

The consequent conclusion of the Doctor is as follows:

“I hereby refer Mr.Dhanasekar under treatment of Schizophrenia has been referred for diagnostic clarification. He has difficulty in walking, cognitive decline, which is not completely explained by Schizophrenia. Henceforth, in view of, possibility of neurodegenerative disorders. I have asked the family to attend Savitha OPD, for Neuropsychic assessment, management of Schizophrenia and neurological

evaluation. Kindly do the needful.”

As a matter of fact, the Consultant Psychiatrist, who is treating the petitioner opined as follows:

“To whom so even it may concern, This is to inform,

Mr.Dhanasekar has               been diagnosed as

Neurodegenerative Disorder (SCA 17).

It has cognitive decline, focal defects and deteriorating course.

He is suggested to follow up a Neurologist and asked to go for Neuropsychiatric assessment.”

13. Upon going through the relevant medical literature on the subject, relating to the Neurodegenerative Disorder is concerned, it is seen that alcoholism is one of the reasons for such disorder. The disease affects both the cerebrum as well as cerebellum. When it affects cerebellum, it affects the motor skills such as walking difficulty etc, which are present in the accused. But, only when it affects the cerebrum, it is said as “SCA-17”, where it affects the cognitive skills.
14. The relevant portion of the medical literature is extracted hereunder for ready reference:

“SCA usually results from damage to the part of the brain that controls muscle coordination (cerebellum) or its connections. Many conditions can cause ataxia, including alcohol misuse, stroke, tumor, brain degeneration, multiple sclerosis, certain medications and genetic disorders^[2]. Ataxia is diagnosed through methods including medical history, family history, blood tests to rule out other conditions presenting similar symptoms, and neurological evaluations. 12 types of ataxia, Friedrich’s ataxia and a number of others have genetic blood tests to aid diagnosis; however, some forms of SCA cannot be precisely diagnosed as they have not been genetically identified. In spinocerebellar ataxia, this makes up about 25% to 40% of cases. As there is an overlap in symptoms between the different types of spinocerebellar ataxia, genetic testing can be used to concretely diagnose the type of SCA affecting a patient. In these cases, neurological examinations that may include MRI scans of the brain and spine may be used to diagnose SCA^[3].

TABLE SHOWING SCA WHICH AFFECTS THE COGNITIVE FUNCTION AND WHICH HAS NORMAL COGNITIVE FUNCTION:

Cognitive function	Spinocerebellar ataxias (SCAs)
Cognitive dysfunction	SCAs1, 2, 3,6,7,8,10,12,17, 19,21, DRPLA
Dementia	SCAs 2, 3(?), 8,12,19, DRPLA
Mental retardation	SCA13
Normal cognitive function	SCAs 4,5,11,14,15,16,18,20, 22,23,24,25,26,27,28,29, EA 1 and 2

A diagnostic approach to ataxia may include:

1.Neurological and medical history, including drug and toxin exposures

2.Family history of neurological problems

3.Neurological and medical examinations

4.Blood tests to rule out specific deficiencies and toxins

5.Urine screen for mercury exposure

6.Brain imaging: magnetic resonance imaging (MRI) or computed tomography (CT)

7.Neuroimaging of the spinal cord.

8.Electrophysiologic testing (electromyography and nerve conduction velocity testing) if there are signs or symptoms of peripheral nerve dysfunction

Searching for a specific diagnosis in patients with ataxia of unknown cause is highly recommended. Investigation may reveal a reversible cause of cerebellar dysfunction, such as vitamin E deficiency, Wilson’s disease, cerebellar dysfunction due to thyroid abnormalities, or cerebellar injury due to a toxin.

If no acquired cause of ataxia is found, or if the history suggests an inherited cerebellar disease, specific genetic testing is indicated. Examples include blood testing for Friedreich’s ataxia or any of the testable spinocerebellar ataxias (SCAs). Genetic disorders may arise anew, so that genetic testing is indicated if all others results are unrevealing^[4].

Confirmatory Test:  

SCA-17 (TBP) Repeat Expansion Test

1.CAG/CAA repeat size from 41 to 50. More than 75% of individuals have intellectual deterioration; in some individuals, intellectual problems and involuntary movements are the only signs. Psychiatric symptoms or dementia, parkinsonism, and chorea – a clinical constellation resembling Huntington disease – are more frequently observed in individuals with CAG/CAA repeats in this range than in individuals with larger

repeats [Stevanin et al 2003, Bauer et al

2004, Toyoshima et al 2004].

2.CAG/CAA repeat size from 43 to 47. Individuals with

an allele of 43-47 repeats tend to have a

parkinsonian phenotype [Kim et al 2009, Chen et al

2010].

3.CAG/CAA repeat size from 50 to 60. All individuals have ataxia and 75% have reduced intellectual function. Pyramidal signs (e.g., increased deep tendon reflexes) and dystonia are more common than in those with smaller repeats.

4.CAG/CAA repeat size greater than 60. Two

individuals with repeats in this size range have been reported. The largest CAG/CAA repeat is 66 repeats, observed in one familial case [Maltecca et al 2003]. The child developed gait disturbance at age three years followed by spasticity, dementia, and psychiatric symptoms. The other child, who had a de novo CAG repeat expansion of 63 repeats, developed ataxia and intellectual deterioration at age six years followed later by spasticity [Koide et al 1999]. Brain MRI showed severe atrophy in the cerebrum, cerebellum, and brain stem^[5].”

15. Thus, it can be seen that there is a confirmative test as to SCA17, which is also very much available. On a perusal of the report of the private Doctor, it is seen by this Court that the said confirmative test is not taken. Besides the report of the MRI Scan also states that it is an early disorder, which can be said that it has started recently or the disorder is in the starting stage. Therefore, it is seen in these kinds of diseases are progressively degenerative in nature thereby, affecting the cognitive skills increasingly. The Hon’ble Supreme Court of India, while considering the plight of mentally ill persons languishing in Jail on account of the postponement of trial, had in News Item “38 Yrs In Jail Without Trial” Published In The Hindustan Times, In Re, (2007) 15 SCC 18, directed periodical examination of such persons and it is useful to extract relevant portion of paragraph 26 of the said judgment :

“26. As there are a large number of mentally ill undertrial prisoners in various psychiatric

hospitals/nursing homes, we consider it just and proper to issue some general directions to avoid such mentally ill persons languishing in psychiatric hospitals for long periods:

…….

(iv) As regards the undertrial prisoners who have been

charged with grave offences for which life

imprisonment or death penalty is the punishment, such persons shall be subjected to examination periodically as provided in sub-sections (1), (3) and (4) of Section 39 of the Act and the officers named therein (visitors, medical officer in charge of the hospital and the examining medical officer respectively) should send the reports to the court as to whether the undertrial prisoner is fit enough to face the trial to defend the charge. The Sessions Courts where the cases are pending should also seek periodic reports from such hospitals and every such case shall be given a hearing at least once in three months. The Sessions Judge shall commence the trial of such cases as soon as it is found that such mentally ill person has been found fit to face trial.”

16. In the light of the judgment of this Court in Kaliyappan (supra), it can be seen that the matter has to be strictly decided as per Section 329 of the Code of Criminal Procedure. Therefore, if any mental retardation or unsoundness of mind is pleaded, it has to be first tried by the Court by first referring the person to a Psychiatrist or a Clinical Psychologist and the opinion of the said person has to be obtained as to whether the person is suffering from unsoundness of mind. If the report does not mention any mental illness, it will be open for the Magistrate to proceed with the trial. If the report mentions any mental illness, then, the decision has to be taken under Section 329(2) as to whether such unsoundness of mind would render the accused incapable of entering his defence and if the findings of incapability is arrived, then two options are available for the Magistrate. First, he can examine the prima facie records of the prosecution and if there is no prima facie case, the person can be discharged. But, if there is a prima facie case, the trial has to be postponed further. While postponing the trial, the Magistrate has to decide whether the unsoundness of mind is treatable or not and if so, what procedure has to be adopted? In this case, since the expert itself has opined that the mental illness of the person is not such in nature so as to render him unfit to face the trial and coupled with the fact that the answers given by the accused in the interaction, the Trial Court has decided to proceed further with the trial.
17. Learned counsel for the appellant submits that it was not proper on the part of the Trial Court to have questioning the accused. The questioning which is prohibited under Section 329(2) of the Code of

Criminal Procedure is questioning regarding the merits of this case, such as questioning of charges etc and not the interaction of the Court with the accused so has to determine his capability or fitness to enter his defence which is prohibited. Therefore, on that score, I am unable to agree with learned counsel for the petitioner. But, however, considering the overall circumstances of the case, that the accused is now said to have been suffering with Neurodegenerative disorder, which will worsen the mental condition of the accused everyday, firstly, it has to be ascertained whether the accused suffers from such disorder or not. Secondly, if such disorder is found, what is the stage of the disease and whether it has affected his Intelligent Quotient to such a level  not to proceed with the trial or not.

18. Taking cue from the judgment of the Hon’ble Supreme Court of India, that periodical check up, once in six months should be done, so as to do justice to both for the proceeding with the trial and imposition of the punishment, and as well as the alleged mental condition of the accused, I am of the view that in this case, because of efflux of time of six months, once again, a fresh examination can be done with appropriate questions from this Court, so that the problem can be resolved and the concern on behalf of the petitioner accused can also be addressed and at the same time, appropriate decision can be taken so as to the proceeding with the of trial.
19. Therefore, I am of the view that the petitioner / accused can be referred afresh to a Panel of Doctors, namely, the Mental Health Board of the Institute of Mental Health, Kilpauk by co-opting a Neurological expert also and by also including the Consultant Psychologist, who has given the certificate / treatment to the petitioner / accused namely, V.Venkateshwaran and the panel shall examine the following:
    • Whether the accused is on date suffering from any mental illness as referred under Section 3 of the Mental

Health Care Act?

• If so, what is the nature of the disease?
• What are the characteristics and the attendant behavioral abnormality attributed to the said disease?
• Whether the petitioner accused also suffers from any Neurodegenerative disorder, more specifically SCA 17?
• If he suffers from such disorder, what is the stage of the disorder and by the parameters, what would be the loss of his cognitive skill and what would be his range of Intelligent Quotient and if there is any loss of Intelligent Quotient, what are the characteristics and behavior attributable to the said disorder?
• With the overall mental condition of the accused, whether he would be in a position to comprehend what is right and what is wrong and normal procedure, which transpires in the Court including questioning about what has he done in the past and understanding the imputations against him, the evidence and

circumstances against him in a manner as to rebut / explain if he choses to?

20. The petitioner accused shall be referred to the above panel for examination by the Trial Court within a period of one week from the date of receipt of copy of this order. The said panel shall submit its report within a period of two months therefrom to the Trial Court and upon the receipt of the report, the Trial Court can take a call and determine whether the petitioner / accused is in a position to face trial by entering his defence as per Section 329 (2) of the Code of Criminal Procedure and if it concluded that he is fit, accordingly proceed further with the trial expeditiously. Otherwise, appropriate decision as to the postponement can be taken as discussed supra.
21. In view thereof, the criminal revision is partly allowed on the above conditions.

Index : yes/no          11.08.2022

Speaking/Non-speaking order drm

To

1. The Sessions Court, Mahalir Neethimandram Allikulam, Chennai.
2. The Public Prosecutor, High Court of Madras.
3. The Inspector of Police V6 Kolathur Police Station

D.BHARATHA CHAKRAVARTHY, J.

drm

Crl.R.C.No.940 of 2022 and Crl.M.P.Nos.9784 & 9787 of 2022

11.08.2022

[1] Crl.O.P.No.4993 of 2018

[2] Mayo Foundation for Medical Education and Research (MFMER), Ataxia, (April 09, 2022) https://www.mayoclinic.org/diseases-conditions/ataxia/symptoms-causes/syc-20355652

[3] Lois Zoppi, What is Spinocerebellar Ataxia? (Sep 16, 2018) https://www.news-medical.net/health/What-is-Spinocerebellar-Ataxia.aspx#

[4] Diagnosing Ataxia

https://www.hopkinsmedicine.org/neurology_neurosurgery/centers_clinics/ataxia/conditions/ataxia_diagn osis.html

[5] Toyoshima, Tasuko & Onodera, Osamu & Yamada, Mitsunori & Tsuji, Shoji & Takahashi, Hitoshi, Spinocerebellar Ataxia Type 17, (July 28, 2022)