Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 425/2020 & CRL.M.A. 8824/2020
Judgment reserved on : 12.10.2020
Date of decision: 22.10.2020
TAUFIK ..... Applicant
Through: Mr. P.K. Dhaka & Mr. Satendra
Singh, Advocates.
Versus
STATE ..... Respondent
Through: Mr. Kamal Kr. Ghei, APP for State.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT
ANU MALHOTRA, J.
1. The applicant, vide the present application under Section 439 of
the Cr.P.C., 1973 seeks the grant of bail in relation to FIR
No.322/2018, PS Sagarpur under Section 376 of the Indian Penal
Code, 1860 and Section 6 r/w Section 10 of the POCSO Act, 2012
submitting inter alia to the effect that he suffers from mental illness
from the time of his arrest;
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:22.10.2020
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• that it is on the record in the charge sheet that he did not
try to run away from the place of occurrence because either
as he might have not committed the offence or he might not
be aware of the act which he committed due to his mental
incapacity;
• that even before two years of the date of offence the
applicant had undergone treatment at IHBAS but his
condition did not improved as he could not visit the hospital
regularly due to poor financial condition of his family;
• that as per the prescription slip issued from the
th
department of Psychiatry Ref No. 2016-2-121666 dated 14
March 2016, it is manifestly clear that the accused/applicant
has been administered Risperidone Tablets/ medicine which
on a research from the website i.e. www.drugs.com and
www.risperidone.com, it was found that Risperidone is an
antipsychotic medicine which works by changing the effects
of chemicals in the brain and is used to treat schizophrenia in
adults and is also used to treat symptoms of bipolar disorder
(manic depression) in adults;
• that the applicant was also prescribed the medicine
sodium valporate which is used to treat the epilepsy and
bipolar disorder; that the fact of the mental illness of the
applicant is mentioned in a letter given by the head of the
village to which the applicant belongs stating that the
applicant belongs to a poor family and is of unsound mind;
Signature
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By:SUMIT GHAI
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Date:22.10.2020
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that the applicant on 20.11.2018 had requested the learned
Trial Court to send him to IHBAS for conducting a clinical
psychological examination and treatment under the Mental
Health Care Act 2017, which mandates for providing of
mental healthcare and services for persons with mental illness
and to protect, promote and fulfill the rights of such persons
including the prisoners under Section 103 of the MHC Act
2017;
• that the applicant/accused was admitted in IHBAS for
treatment and evaluation for few months and the medical
board of IHBAS submitted a medical report vide reference
No. CRF No. 2016-02-12666, dated 17.05.2019, declaring
that the "Patient was a case of Bi-Polar affective disorder,
currently hypomania and that he needed regular monitoring
for improvement and follow up with the psychiatrist" and that
after medical evaluation the applicant/accused was
transferred to jail on 04.06.2019;
• that the application filed by the applicant before the
learned Trial Court seeking grant of bail was rejected vide
order dated 18.11.2019 of the learned ASJ. It has further been
submitted on behalf of the applicant that vide order dated
18.11.2019, it was observed as under:-
“The chargesheet has been filed u/s 376 IPC and
Sections 6/10 POCSO Act. The accused is alleged to have
inserted his finger in the private part of the victim who was
of tender age as she has not been completed 4 years. The
offence is no doubt grave.
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By:SUMIT GHAI
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Bail is sought on the ground that his parents shall get
him properly treated. It is however noted in the application
and submitted that his treatment could not be continued
on account of financial condition of the family. Admittedly
his treatment was not continued from 2016 onwards. Even
if it be accepted, for the sake of arguments, that the
accused is mentally ill and requires treatment, it is evident
that his family is unable to provide the same. On the other
hand, through the State Instrumentality, appropriate
treatment can be made available to him. The fact as noted
in the application that he left his house without intimating
his family also shows that his family members are unable
to take care of him. Further as reported by Medical Board
despite "patient is a case of Bipolar Affective Disorder,
currently Hypomania", he is fit to stand trial. This implies
that he is capable of entering his defence and capable of
comprehending the circumstances.
In view of above stated discussion, application is
dismissed.”
2. It is submitted on behalf of the applicant that he had no mens
rea to commit any offence and any overt act without mens rea is not
culpable. It is further submitted on behalf of the applicant that in as
much as he is of unsound mind and unable to understand the Court
proceedings, in terms of Section 330 of the Cr.P.C., 1973 he has to be
released on bail entrusting him to the custody of his relatives
prescribing conditions with a view that he would not cause harm to
himself or to others and to also ensure his constant medical care. It is
also submitted on behalf of the applicant that even in terms of Section
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439 of the Cr.P.C., 1973, if the applicant is unwell, may be released on
bail. It is further submitted on behalf of the applicant that at this stage,
the Court ought not to look into the nature of the offence that the
applicant is alleged to have committed and that the applicant is not
required for any custodial interrogation and that the charge sheet in the
matter has already been filed and that there is no chance of the
applicant absconding or tampering with the prosecution evidence if
admitted to bail.
3. Notice of the application was issued to the State and the status
report was also called for from the State through which it was stated
that the complaint in the instant case was lodged on 14.06.2018 on
receipt of a PCR Call vide DD No. 37A was received at Police St a ti on
Sagarpur regarding molestation of a 4 year old girl at Gal i N o.2 ,
Kailashpuri Extension. New Delhi and thereafter Insp. Sar o j Bala had
examined the mother of the victim child re g arding the i ncident who
had given a written complaint stating that her child ‘A’ aged 4 years
studied in nursery in the SDM Public School, Kailashpuri and had
gone to get her gas stove repaired at 02:45 PM and in front of the shop
of barber a boy named Taufik i.e. the applicant herein who had been
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working there since 3-4 days, called her daughter to his shop and after
sometime the girl came out weeping and informed that Taufik i.e. the
applicant herein had put his finger in her urine passing part and then
the mother of the victim went to ask him, she also slapped him 2-4
times and after some time her spouse came there and called the police,
whereupon the FIR No. 322/2018, U/s 376 of the Indian Penal Code,
1860 & Section 6 of the POCSO Act, 2012 was registered and that the
MLC of the prosecutrix No. 271/2018 dated 07.08.2018 reflected
“Vulval Injury Redness” and that the applicant was arrested and the
statement under Section under Section 164 of the Cr.P.C., 1973 of the
prosecutrix was recorded.
4. In as much as submissions were made on 07.07.2020 on behalf
of the applicant that he is also suffering from TB and had received
treatment earlier for the same, the medical status report in relation to
his medical condition after getting him medically examined qua the
stated ailment of TB as well as qua his stated mental ailments was
called for from the Superintendent, Central Jail, Mandoli Delhi where
the applicant is presently lodged. Vide order dated 16.07.2020, the
status report qua the medical condition of the applicant after his
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examination which was to be conducted at the DDU Hospital on
16.07.2020 as per the report dated 07.07.2020 received from the
Superintendent, Central Jail No.14, Mandoli, Delhi was called for.
The said status report dated 27.07.2020 was received from the
Superintendent, Central Jail, Mandoli, Delhi which indicated a
positive report in relation to the aspect of the applicant having been
given ATT in as much as vide report dated 27.07.2020 it was reported
by the Senior Medical Officer, Central Jail-14, Mandoli, Delhi that on
25.07.2020, the patient i.e. the applicant was sent to the RBIPMT
Hospital where he was advised for a test and to review the reports and
thus, the updated medical status report was called for, for the date
19.08.2020, whereafter, the status report dated 17.08.2020 was
received from the Superintendent, Central Jail No.14, Mandoli, Delhi
which indicates to the effect that ATT (TB Medicines) had been
started from the GTB Hospital and that the vitals of the applicant were
stable.
5. Vide paragraph 14 of the status report dated 27.07.2020
received from the Senior Medical Officer, Incharge, Central Jail
No.14, Mandoli, Delhi, it was stated to the effect:-
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“the opinion of the jail psychiatrist during his MSE is that
the applicant is feigning/ exaggerating symptoms. Learned
counsel for the applicant submits that the same is erroneous
and that even when the applicant was examined at IHBAS,
there has been an initial problem in relation to the ailment
of the applicant but that vide the report placed as Annexure-
P4 bearing No.F.19(62)/Recep/IHBAS/2019 as given by the
medical Board of IHBAS, the applicant is a case of Bipolar
Affective Disorder, i.e. Hypomania and that he is showing
improvement with medication and that he needs regular
monitoring for improvement and follow-up with
psychiatrist, though, he was fit to stand trial.”
6. It has thus been submitted on behalf of the applicant that the
applicant at the jail was not being provided any medication
whatsoever in relation to his ailment of Bipolar Affective Disorder, in
as much as, the jail authorities have been repeatedly reporting to the
effect that the applicant was feigning/ exaggerating symptoms. In view
thereof, vide order dated 04.08.2020, it was considered essential that
the Board comprising of Dr.Om Prakash, Assoc. Prof. of Psychiatry,
Dr.U.K.Sinha, Addl. Prof. of Clinical Psychology Member and
Dr.N.G. Desai, Director and Chairman of the Medical Board of
IHBAS had examined the applicant qua his present medical status.
7. A report dated 02.09.2020 was received from IHBAS stating to
the effect that its Standing Medical Board on that date comprised of
only two persons i.e. Dr. N.G. Desai and Dr. Om Prakash as Dr. U.K.
Signature
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By:SUMIT GHAI
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Sinha who was earlier the member of the Board could not be a part of
the Medical Board. Vide order dated 09.09.2020, it was observed that
as per the report received from IHBAS as per the examination
conducted on 02.09.2020, it was opined by the Medial Board of
IHBAS to the effect that:-
“1. The patient is being assessed for “current mental
status.
2. The patient did not respond to any questions, did not
make any eye to eye contact and kept looking downwards
throughout the assessment.
3. Hence, currently it is difficult to comment on “current
mental status”. We recommend inpatient observation and
assessment, to opine about the same.
4. Hence, kindly pass order under Section 103 of Mental
Healthcare Act, 2017 and transfer the patient to IHBAS
for inpatient evaluation.
5. Any other opinion besides “current mental status” (if
required), may be clarified.” ,
and thus, IHBAS had sought that that an order under Section 103 of
the Mental Health Care Act, 2017 be passed and that the patient be
transferred to IHBAS for an inpatient evaluation to which prayer there
was no opposition on behalf of the State.
8. Initially on behalf of the applicant, it was submitted that the
applicant could himself go to IHBAS qua which, vide order dated
09.09.2020, it was observed to the effect that the said aspect cannot be
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Date:22.10.2020
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granted presently but that in relation to the aspect of grant of any such
transfer of the applicant into IHBAS for inpatient evaluation, in as
much as, there was an observation made in the report dated
05.09.2020 of IHBAS that it was currently difficult to comment on the
current medical status of the applicant and that the Board
recommended the inpatient observation to assess and opine about the
same, it was observed vide order dated 09.09.2020 that it was essential
for the Court to know the period of time that would be required for
such inpatient evaluation of the applicant and the report was thus
called for from the Medical Board of IHBAS for the date 05.10.2020.
The report dated 22.09.2020 received from the Medical Board of
IHBAS with reference to the order dated 09.09.2020 as sent by Dr.
N.G. Desai, Director and Chairman of the Medical Board of IHBAS
reads to the effect:-
“The Standing Medical Board conduct e d i n abse n ce of
patient on 16 . 09.2020 with respect to t he Hon'ble Court
order dated 09 . 09.2020 . The Medical Board has opined
that:-
1. The period of assessment required i n such cases cannot
be fi x ed precisel y . Genera l l y 4 - 6 weeks of observation has
been r eques t ed by IHBAS. At the ver y minimum , 2-3 weeks
would be essential for the nature of opinion requ e s t ed.
2. It is also opined that the assessment and opinion wou l d
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depend significantl y on the cooperat i veness of the patient
and the other sources of information . In this case, t h ere is
already some indication of lack of cooperativeness / active
lack of participation b y the person concerned.
3. In any case to the best of our understanding , Section - l03
of Menta l Hea l thcare A ct, 201 7 does not req u ire duration
of a d mission to Mental Health Establis h ment , to be
specified . Nonetheles s, if the Hon ' ble High Court w oul d ask
u s to indicate time frame , we req u est for assessment for 3
w e eks, extendab l e b y another 3 weeks .”
9. Section 103 of the Mental Health Care Act, 2017 provides as
follows:-
“ 103. Prisoners with mental illness .—(1) An order under
Section 30 of the Prisoners Act, 1900 (3 of 1900) or under
Section 144 of the Air Force Act, 1950 (45 of 1950), or
under Section 145 of the Army Act, 1950 (46 of 1950), or
under Section 143 or Section 144 of the Navy Act, 1957 (62
of 1957), or under Section 330 or Section 335 of the Code of
Criminal Procedure, 1973 (2 of 1974), directing the
admission of a prisoner with mental illness into any suitable
mental health establishment, shall be sufficient authority for
the admission of such person in such establishment to which
such person may be lawfully transferred for care and
treatment therein:
Provided that transfer of a prisoner with mental
illness to the psychiatric ward in the medical wing of the
prison shall be sufficient to meet the requirements under
this section:
Provided further that where there is no provision for
a psychiatric ward in the medical wing, the prisoner may be
transferred to a mental health establishment with prior
permission of the Board.
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By:SUMIT GHAI
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(2) The method, modalities and procedure by which the
transfer of a prisoner under this section is to be effected
shall be such as may be prescribed.
(3) The medical officer of a prison or jail shall send a
quarterly report to the concerned Board certifying therein
that there are no prisoners with mental illness in the prison
or jail.
(4) The Board may visit the prison or jail and ask the
medical officer as to why the prisoner with mental illness, if
any, has been kept in the prison or jail and not transferred
for treatment to a mental health establishment.
(5) The medical officer in charge of a mental health
establishment wherein any person referred to in sub-section
(1) is detained, shall once in every six months, make a
special report regarding the mental and physical condition
of such person to the authority under whose order such
person is detained.
(6) The appropriate Government shall set up mental health
establishment in the medical wing of at least one prison in
each State and Union Territory and prisoners with mental
illness may ordinarily be referred to and cared for in the
said mental health establishment.
(7) The mental health establishment set up under sub-
section (5) shall be registered under this Act with the
Central or State Mental Health Authority, as the case may
be, and shall conform to such standards and procedures as
may be prescribed.”
10. A submission was thus sought to be made on 12.10.2020 on
behalf of the applicant that in terms of Section 330 of the Cr.P.C.,
1973, the applicant was entitled to be released on bail. Section 330 of
the Cr.P.C., 1973 provides as follows:-
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“ 330. Release of lunatic pending investigation or trial.
(1) Whenever a person is found, under section 328 or
section 329, to be of unsound mind and incapable of making
his defence, the Magistrate or Court, as the case may be,
whether the case is one in which bail may be taken or not,
may release him on sufficient security being given that he
shall be properly taken care of and shall be prevented from
doing injury to himself or to any other person, and for his
appearance when required before the Magistrate or Court or
such officer as the Magistrate or Court appoints in this
behalf.
(2) If the case is one in which, in the opinion of the
Magistrate or Court, bail should not be taken, or if sufficient
security is not given, the Magistrate or Court, as the case
may be, shall order the accused to be detained in safe
custody in such place and manner as he or it may think fit,
and shall report the action taken to the State Government:
Provided that no order for the detention of the accused in a
lunatic asylum shall be made otherwise than in accordance
with such rules as the State Government may have made
under the Indian Lunacy Act, 1912 (4 of 1912).”
11. In the instant case, it is essential to observe that it was reported
vide the report dated 31.08.2020 by the Standing Medical Board
examination conducted at IHBAS after examination conducted on
29.08.2020 and 02.09.2020 that the patient required 2-3 outpatient
visits before presentation to the Medical Board and that the copy of
the Standing Medical Board examination conducted on 29.05.2019
was attached to this report, wherein, it was observed to the effect:-
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“Opinion and recommendation of the treating
Consultant/Unit
a) Clinical Assessment (Important historical events,
Psychopathology and physical examination findings):
nd
Patient is a 25 years unmarried male, educated till 2
standard (could not continue further education because of
the financial condition of the patient's family) previously
working as a labour. R/o Hilwari Village, Barod U.P. with no
history of psychiatric illness in the family.
Patient was registered at IHBAS in February, 2016, he was
seen in walk-in-clinic in February and March, 2016. He was
diagnosed as a case of mania and was started on Tab.
Sodium Valporate 100 mg. Tab Risperidone 4mg.
Patient was sent to IHBAS, December, 2018 for his
assessment for fitness to stand trial (accused under POCSO
Act). In December, 2018, as reported by the police
personnels, patient was in Tihar Jail for 4 months.
During the assessments in Psychiatry OPD -
Patient was not co-operative, he would never make any eye
contact with any of the interviewers. As the patient was not
cooperative, patient was admitted at IHBAS under Section
103 of MHCA, 2017 as per the Hon'ble Court order dated
22.03.2019.
The patient was admitted in Psychiatry ICU for CCTV
monitoring and recording to monitor the patient's behaviour
as per the Court order.
During the observation & assessment in Psychiatry lCU -
Patient is being assessed by two independent
multidisciplinary teams. He was uncooperative for the
assessment There is an observable difference when the
patient is being watched by the staff or on interviewing by the
doctors and when the patient is alone in the observation
room.
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He would not make any eye contact, most of the times he
would wear a cap. He would answer only to few questions
and in a low tone. There was active avoidance in making eye
contact as he would make a lateral gaze towards the
interviewer. He was doing ADLs on own. He would
independently go to serve himself food and then wash his
utensils. He would walk in a normal pace when no one would
watch him. He was not cooperative when questions were
asked for assessment for fitness to stand trial.”
12. It was opined further vide this report that the applicant was fit to
stand trial and had even stated that he met a counsel on one or two
occasions; that he could also understand that there were consequences
of charges against him and that he understood the charges against him
also. In as much as, vide the report dated 05.09.2020, it was requested
by IHBAS that it was currently difficult to comment on the current
medical state of the applicant and inpatient observation and
assessment was required for the same, coupled with the allegation
against the applicant of having committed fingering of a minor girl
aged 4 years, as also that the aspect of determination of the mental
condition of the applicant being of unsound mind or otherwise is yet to
be ascertained, the prayer made on behalf of the applicant that he be
released on bail in terms of Section 330(1) of the Cr.P.C., 1973 due to
reasons of his unsounded mind, cannot be granted, in as much as,
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there is nothing to indicate that he would commit no injury to any
other person.
13. However, presently, in view of the opinion forwarded by Dr.
N.G. Desai, Director and Chairman of the Medical Board of IHBAS
vide letter No.F.19.(62)/Recep/IHBAS/2020/979 dated 22.09.2020
and the report attached thereto, it is considered appropriate and
essential and it is thus, directed that the Superintendent, Central Jail
No.14, Mandoli, Delhi where the applicant is presently lodged shall
transfer the applicant to IHBAS, Delhi for a period of 21 days from
the date of receipt of this order, whereafter, the applicant be
transferred back to the Central Jail No.14, Mandoli, Delhi under the
custody of the personnel of the jail authorities of the Superintendent,
Central Jail No.14, Mandoli, Delhi.
14. The report of the medical examination and observation
conducted at IHBAS during the period of three weeks that the
applicant is in the mental health establishment of IHBAS be submitted
to this Court by IHBAS in relation to the present mental condition of
the applicant to ascertain the aspect of the mental soundness and
capacity of the applicant to face trial.
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15. The matter be re-notified for 01.12.2020, for which date the
report of the medical examination conducted of the applicant at
IHBAS is called for. Copy of this order be sent to the Ld. Director
and Chairman of the Medical Board of the IHBAS for necessary
action.
16. Copy of this order be sent to the Superintendent Jail, Delhi
concerned where the applicant is presently lodged, for compliance.
ANU MALHOTRA, J.
OCTOBER 22, 2020
‘neha chopra’
Signature
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By:SUMIT GHAI
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Date:22.10.2020
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