Protection under BNSS for accused with unsound mind or intellectual disability to apply retrospectively: Kerala High Court

The Kerala High Court recently held that an accused with Alzheimer's, who resultantly is incapable of making his defence in a trial, is entitled to the protection available under the Bharatiya Nagarik Suraksha Sanhita (BNSS) [VI Thankappan v State of Kerala & Anr]..As per the law, when an accused is found to be of unsound mind and thus incapable of making his defence, the court is required to postpone the proceedings against him.While dealing with the question of law on this issue, Justice K Babu also held that the provisions of BNSS regarding it have to be extended retrospectively to any proceedings initiated before July 1.Pertinently, when compared to the provisions of CrPC, the BNSS extends the protection not just to the person of unsound mind but also to a person suffering from intellectual disability, the Court found."It is the right of the accused to have a fair trial as provided under Article 21 of the Constitution, which is sacrosanct of criminal jurisprudence. Therefore, if the provisions of the Sanhita are not extended retrospectively in cases where the accused person is affected by any intellectual disability of such a degree that renders him incapable of making his defence, there would be a failure of fair trial," the Court said..The single-judge was hearing a plea filed by a 74-year-old, accused in a case under Prevention of Corruption Act (PC Act). The counsel representing the accused - diagnosed with advanced 'Alzheimer's Dementia' - had earlier contended that he was incapable of making his defence but the trial court was of the view that he was not suffering from any infirmity or unsoundness of mind.Nevertheless, the special-judge had directed his medical evaluation. The doctors said he was suffering from severe dementia. However, a detailed assessment by a psychiatrist was also recommended.The trial judge then directed that the accused can himself get checked at Mental Health Centre, Thrissur, with further direction to the Medical Superintendent to issue a report if he approaches.The accused challenged the special-judge's order before the High Court..Justice Babu observed that mental or intellectual disability prevents an accused from enjoying the right to fair trial and opportunity to prefer his defence.The Court noted that the CrPC contained provisions on various procedures to be followed by a court when an inquiry or trial is to proceed against an accused who is a person of unsound mind.It also found that Section 105 of the Mental Healthcare Act deals with the procedures to be followed in a judicial process where any proof of mental illness of a person is produced. The BNSS also has provisions for accused persons of unsound mind."A conjoint reading of the Mental Healthcare Act and the relevant provisions in the Sanhita indicates that the Legislature has given a wider canvass to the phrase ‘incapability of making defence’ by incorporating the term “intellectual disability”. While enacting the Sanhita, the Legislature has noted of the definition of the term “mental illness” provided in the Mental Health Care Act, 2017," said the Court. .The Court observed that there was not even a need for an application to try the fact of unsoundness or intellectual disability. It is the mandatory duty of the Court, the bench said.In particular regarding dementia, the Court said it is progressive loss of mental capacity that includes loss of complex brain functions over a period of time. "It is a form of mental disability that may affect the capacity of an accused person to effectively participate in judicial proceedings. The ‘intellectual disability’ referred to in Section 368 of the Sanhita includes Alzheimer’s Dementia if it is in such a stage in which the accused person is incapable of making his defence. Therefore, I am of the view that a person suffering from ‘Alzheimer’s Dementia’, which is of such a degree that renders him incapable of making his defence, is entitled to the protection contained in Chapter XXV of the Code and Chapter XXVII of the Sanhita," the Court held..The Court then proceeded to consider the applicability of BNSS to the cases dating back to the period before July 1, the day the new criminal laws came into force.It observed that if two persons suffering from a mental disability or intellectual disability are dealt with differently, one under the CrPC and the other under the BNSS, it would be violative of Article 14 of the Constitution."Among equals, the law should be equal and equally administered and should be treated alike. The guarantee of ‘equal protection’ under Article 14 is a guarantee of equal treatment of persons in ‘equal circumstances’. To preserve the fundamental right of an individual, the provisions of the Sanhita can be extended retrospectively to any proceedings initiated prior to 1.7.2024. The saving provision under Section 531 of the Sanhita shall not deter the enforcement of the fundamental right of an accused," it held..With regard to the present case, the Court found the special-judge's decision to ask the accused to get himself assessed by a psychiatrist to be wrong. "The learned Special Judge lost sight of the principle that he has an onerous responsibility to try the issue as to whether the petitioner has any mental disability. The order impugned is patently illegal and irregular," the Court said.Therefore, it remanded the matter to the special-judge, for re-consideration of accused's case under the provisions of BNSS..The petitioner was represented by advocates T Kabil Chandran, TD Robin, R Anjali and Aayshath Najila Schemnad.Public Prosecutor G Sudheer appeared for the State.Advocates Renjith B Marar and V Ramkumar Nambiar served as Amicus Curiae. .[Read Order]