Source: Delhi High Court 

Why in News? 

A bench of Justice Dr. Swarna Kanta Sharma held that the provisions under Chapter XXV including Section 328, 329 and 330 of the Criminal Procedure Code, 1973 (CrPC) are couched in mandatory language. Thus, the procedure contemplated therein is mandatory in nature. 

• The Delhi High Court held this in the case of State v. Neeraj (2025). 

What was the Background of State v. Neeraj (2025) Case?   

• The case involves allegations of attempted sexual assault by a boy named Neeraj (respondent) against a minor girl victim. 
• The victim alleged that Neeraj attempted to commit an inappropriate sexual act with her in a vacant plot, with Neeraj being unknown to the victim prior to the incident. 
• The victim underwent medical examination on 18th September 2015, at BJRM Hospital, Delhi, where the doctor recorded the history as "alleged history of attempt to sexual assault" in the Medical Legal Certificate (MLC). 
•  A witness named Richa claimed to have observed the incident from her residence and testified that the accused had undressed both himself and the victim and was about to sexually assault her before being apprehended. 
• Following investigation completion, a chargesheet was filed against the accused under Section 376 of the Indian Penal Code, 1860 (IPC) read with Section 6 of the Protection of Children from Sexual Offences (POCSO) Act. 
• The Sessions Court discharged the accused on 29th April 2017, based on a medical assessment by the Institute of Human Behaviour and Allied Sciences (IHBAS) Medical Board. 
• The Medical Board diagnosed the accused as suffering from severe mental retardation with a mental age equivalent to that of a four-year-old child, though without behavioral problems. 
• The Court concluded that the accused could not understand the nature of his act nor was he capable of entering a defense, thereby finding no grounds to proceed with the case. 
• The accused's father was directed to furnish a surety bond of Rs. 10,000 under Section 437-A of the Criminal Procedure Code, 1973 (CrPC) as a condition of the discharge. 
• The State by way of the present petition wishes to assail the order passed by the Sessions Court. 

What were the Court’s Observations? 

• The impugned order was passed by the learned Sessions Court during the stage of inquiry, as charges had not yet been framed. 
• Therefore, the applicable provisions were Sections 328 and 330 of the CrPC, which govern procedures relating to accused persons of unsound mind. 
• The chargesheet was filed on 30th January 2016, along with an IQ certificate from IHBAS dated 2nd February 2009, which assessed the mental age of the accused as that of a four-year-old child. 
• On 19th April 2016, the Sessions Court directed the investigating officer to submit a report regarding the mental condition of the accused, suggesting that the Court suspected the accused might be of unsound mind and incapable of defending himself. 
• On 26th May 2016, the learned Sessions Court directed that a report be obtained from the Medical Board at IHBAS to assess the accused’s fitness to stand trial and his current mental status. 
• The Medical Board’s report was prepared on 16th September 2016 and received by the Sessions Court on 1st October 2016. It diagnosed the accused as a case of severe mental retardation. 
• The Sessions Court correctly followed the mandate of Section 328(1) and (1A) of CrPC by referring the accused for a medical examination and summoning the concerned medical expert (Dr. Vijender Singh) as CW-1. 
• Based on the medical evidence and the earlier IQ certificate, the Sessions Court concluded that the accused was not capable of understanding the nature of the act or entering a defence. 
• However, once this conclusion was reached, the Sessions Court was required to proceed under Section 328(4) of CrPC and follow the procedure prescribed in Section 330 of CrPC. 
• The Sessions Court failed to comply with the mandatory procedure under Section 330(3) CrPC which required it to assess whether the accused could be safely discharged upon furnishing sufficient security or needed to be placed in a residential facility. 
• The Sessions Court did not analyze the nature of the alleged act or the extent of the accused’s mental retardation before passing the discharge order. 
• The discharge order did not reflect any assessment of whether the accused posed a danger to himself or others, which is a mandatory requirement under Section 330(3) CrPC. 
• The Court also did not seek or consider any further medical or expert opinion on whether the accused could be safely managed in his home environment or needed institutional care. 
• This failure amounted to a neglect of the judicial responsibility owed to both the accused and the public at large. 
• Section 330(3) CrPC exists to ensure that while mentally retarded persons may not be held criminally liable, they are not released into society without appropriate safeguards if they pose a risk. 
• The provision mandates the Court to carefully evaluate the nature of the offence, the degree of mental retardation, and obtain proper expert advice before releasing or institutionalizing the accused. 
• The omission to follow Section 330(3) of CrPC rendered the impugned discharge order, dated 29th April 2017, legally unsustainable. 
• Consequently, the High Court set aside the impugned order dated 29th April 2017, to the extent it discharged the accused without following due procedure. 
• The matter was remanded back to the learned Sessions Court for passing a fresh order in compliance with Section 330 of CrPC, relating to the release or placement of the accused. 

What is the Distinction Between Unsoundness of Mind and Mental Retardation? 

• The legislature clearly distinguishes between “unsoundness of mind” (mental illness) and “mental retardation” (a developmental condition). 
• Section 84 of IPC only provides exemption from criminal liability to persons of unsound mind if, at the time of the offence, they were incapable of understanding the nature or wrongfulness of the act. 
• Mental retardation, being static and developmental, is not per se covered under Section 84 IPC. 

What are the Relevant Provisions for Unsoundness of Mind? 

• Chapter XXV of the CrPC, which includes Sections 328 to 339, contains provisions regarding accused persons of unsound mind. 
• This chapter outlines the procedure to be followed when an accused is suspected to be suffering from either unsoundness of mind or mental retardation, and these provisions apply at both the inquiry and trial stages. 
• Section 328 of CrPC 
  • Section 328 of the CrPC applies when a Magistrate holding an inquiry has reason to believe that the accused is of unsound mind and, as a result, incapable of making his defence. 
  • In such a situation, the Magistrate is obligated to direct a medical examination of the accused by a civil surgeon or other designated medical officer.  
  • The examining officer must be presented as a witness, and their examination must be recorded in writing. 
  • If, during this examination, the accused is found to be of unsound mind, then he is to be referred to a psychiatrist or clinical psychologist for further assessment, care, and treatment.  
  • The psychiatrist or clinical psychologist must then inform the Magistrate whether the accused suffers from unsoundness of mind or mental retardation. 
  • Section 328(3) provides that if the accused is found to be of unsound mind and incapable of entering defence, the Magistrate must evaluate the medical evidence and any submissions made by the advocate of the accused. 
    • If there is no prima facie case against the accused, the Magistrate may discharge him and proceed according to Section 330. 
    • If a prima facie case exists, the Magistrate must postpone the proceedings for the period required for treatment as advised by the psychiatrist or clinical psychologist, and the accused is to be dealt with under Section 330. 
  • Section 328(4) provides that if the accused is found to be suffering from mental retardation and incapable of entering defence, the Magistrate is required to close the inquiry and directly proceed under Section 330.  
    • During the pendency of the medical examination or inquiry, Section 328(3) permits the Magistrate to issue appropriate directions under Section 330 for the interim handling of the accused. 
• Section 329 of CrPC 
  • Section 329 of the CrPC applies once the trial has commenced, that is, after charges have been framed.  
    • It provides that if, during the trial, it appears to the Magistrate or Court of Session that the accused is of unsound mind and incapable of making his defence, the Court must first try the fact of such unsoundness and incapacity.  
    • This includes directing a medical examination of the accused. Based on the findings, the Court must determine whether a prima facie case exists.  
    • If no such case is made out, the Court may discharge the accused. If a prima facie case is found, the Court must postpone the trial for the period necessary for the treatment of the accused and proceed under Section 330. 
• Section 330 of CrPC 
  • Section 330 of the CrPC deals with the procedure for handling accused persons found incapable of entering defence due to unsoundness of mind or mental retardation, both during inquiry and trial stages.  
  • Sub-sections (1) and (2) of Section 330 provide for the release of such an accused on bail if his condition does not warrant in-patient treatment and a friend or relative undertakes to care for him and prevent him from causing harm to himself or others. 
  • If these conditions are not met, the accused is to be detained in safe custody in a facility capable of providing regular psychiatric treatment, and a report must be sent to the State Government. 
  • The Court can invoke the provisions of Section 330(1) or (2) in various circumstances. These include cases where an inquiry into the accused’s mental condition is ongoing under Section 328(2), when a prima facie case is found and proceedings are postponed under Section 328(3), or when a trial is postponed for treatment under Section 329(2). 
  • Section 330(3) of the CrPC provides the procedure for considering the release or continued custody of an accused who is found incapable of making a defence due to unsoundness of mind or mental retardation.  
    • This provision requires the court to assess whether, considering the nature of the act committed and the extent of the mental condition, the accused can be released safely.  
    • Clause (a) of Section 330(3) allows the court to discharge and release the accused, provided that medical or specialist opinion confirms that the accused poses no danger and sufficient security is furnished to guarantee the accused’s and public’s safety.  
    • Clause (b) applies when the court determines that the accused cannot be safely released. In such a case, the court may order that the accused be placed in a designated residential facility that caters to persons with unsoundness of mind or mental retardation and provides appropriate care, education, and training. 
    • Section 330(3) applies in cases where there is no prima facie case against the accused suffering from unsoundness of mind, as per Section 328(3) and 329(2), or when the inquiry or trial cannot proceed due to mental retardation, as per Section 328(4) and 329(3). 
    • Section 330(3) aims to balance the rights and dignity of an accused who lacks mental capacity with the necessity of ensuring public safety. 
    • It empowers the court to evaluate both the nature of the alleged offence and the extent of the accused’s mental condition before deciding whether the accused may be released with appropriate safeguards or must be placed in a facility offering care and supervision. 
• Section 331 of CrPC 
  • Section 331 of the CrPC stipulates that if an accused person, previously found to be of unsound mind and released under Section 330, subsequently regains mental fitness, the inquiry or trial which had been postponed must be resumed.  
  • This provision is only applicable to persons of unsound mind and not to those with mental retardation, since Sections 328 and 329 contemplate postponement only in cases of unsoundness of mind.