Bombay HC’s ‘Unsound Mind’ Acquittal Ignores Law, Risks Lives

Should a person who has killed two people because of a mental illness be set free without any treatment?

The Bombay HC acquitted a paranoid schizophrenic of murder charges but failed to order any treatment or therapy.

(Photo: Erum Gour/The Quint)

Can you hold a person responsible for their actions when they are incapable of judging right from wrong, legal from illegal, reality from fantasy?

The Bombay High Court recently had to deal with this question in the case of a man accused of murder, who suffered from paranoid schizophrenia. In 2007, he had stabbed the watchman of his residential society in Mumbai to death, after the watchman had failed to water his plants as requested.

Now whether you term it insanity, diminished responsibility or unsoundness of mind, there is a legal principle that applies across countries and legal systems:

You cannot consider someone guilty of a crime if they suffer from some serious mental illness or condition which impairs their decision-making.

The Bombay High Court rightly applied this principle to acquit the man on 29 June 2018, reversing the decision of the trial court, which had ignored his illness.

But here’s where it gets tricky. Just because a person cannot be found guilty and sent to jail, does this mean they should be set free without any restrictions? What if the very basis on which they are being acquitted is also what makes them a threat to the lives of others, and puts their own life in danger as well? Shouldn’t they be given professional help, and treated for their condition?

Treatment and help seem obvious prescriptions for someone with a condition which has led them to think it’s alright to stab another person to death for not watering their plants. And yet the High Court ignored not just common sense but legal procedure as well, setting the man free without any conditions.

Given that this isn’t even the first time he’d killed someone – he had to be acquitted because of his illness back in 2001 as well – this was highly irresponsible, and has put the lives of innocents, and even the man himself, at serious risk.

What Does the Law Say?

To be clear, the Bombay High Court’s error doesn’t lie in acquitting the man. Section 84 of the Indian Penal Code (IPC) has clearly been applied in this case. Under this provision, if someone does something but at the time of doing so, is incapable of understanding that what they’re doing is wrong or illegal because of “unsoundness of mind”, you cannot hold them guilty of a criminal offence.

There is no list of conditions or illnesses which would fall within this exception, which is a good thing, since it assesses the effect of a particular condition on a person, rather than require some sort of pigeonholing exercise.

Paranoid schizophrenia has been recognised by the Supreme Court as a condition which can cause a person to be a danger to himself and to others, and one which can be invoked to claim the defence under Section 84 of the IPC. The High Court noted that the accused in this case had been diagnosed and treated for paranoid schizophrenia before and after the crime, and so there was reasonable doubt in their minds as to his mental condition at the time of the killing.

As a result, even though there was no dispute that he had killed the watchman, he needed to be given the benefit of Section 84 and acquitted.

But there’s more to the law on this issue. The Code of Criminal Procedure 1973 (CrPC) has an entire Chapter devoted to the procedure for dealing with persons of unsound mind.

Section 335 of the CrPC sets out what a court has to do when acquitting someone on the ground of unsoundness of mind where they have committed the act alleged. And it’s not as simple as just ordering that they “be set at liberty forthwith”, as Justices BR Gavai and Sarang Kotwal did in this case.

There are two options for a court in such a situation.

1. They can order the person to be detained in safe custody, in a place and manner of the judges’ choosing (like a hospital or psychiatric facility); or
2. They can order the person to be delivered to a relative or friend. This option can only be used if the relative or friend can assure the court that the person will be properly looked after, will not injure himself or anyone else, and will be produced for assessment by the state government as and when required.

This is not just some advisory, but a mandatory step which needs to be followed. The court even has to send a report on this to the state government about what action it has taken. As per Section 338 of the CrPC, the person can only be released after it is certified that he may be released without danger of doing injury to himself or others – and if this is not the case, that he needs to be committed to an appropriate facility.

The Bombay High Court’s judgment, however, fails to do any of this, which is a clear dereliction of its duty.

What Happens Now?

The failure of the Bombay High Court is not just about ticking off some boxes. The man acquitted by them is obviously someone who needs help and treatment, without which he could very well be a risk to another unsuspecting person, like the two people he has already killed.

Now just because he suffers from paranoid schizophrenia, this doesn’t mean we should presume that he is a risk to others. However, there is an urgent need for his condition to be properly assessed. His doctor, Dr Sandeep Divekar, testified that he had been admitted for indoor treatment from April to July 2008, on the basis of a court order, during which time the had been violent and uncooperative. He was eventually discharged, same as what had happened after four months of treatment in 2001.

The Quint spoke to a senior psychiatrist who confirmed that in such situations, it is essential to investigate whether the patient’s condition is continuous or episodic. If continuous, then he could be a risk to others at any given point of time, but if episodic, he would not necessarily pose a threat. Further assessment is required even if the condition is episodic, to see what triggers the symptoms, what medication or therapy is required to suppress these, and so on.

This is obviously a comprehensive process that is essential to ensure the well-being of the person suffering from the condition, as well as the safety of others around them. This is why we have Section 335 of the CrPC, and why the judges have made a big mistake in failing to comply with it.

One must be careful not to create hysteria around this case, of course, and to avoid any action that only makes things worse.

Section 100(1)(b) of the Mental Healthcare Act, 2017, for instance, gives the police the power to take a person into custody if they have reason to believe they are a risk to themselves and others by reason of mental illness. They have to then be taken to a public health establishment within 24 hours for an assessment of their needs.

While this could ensure that the much-needed assessment is carried out, experts are concerned that this would amount to a post-facto subversion of the High Court’s order of acquittal, and set a dangerous precedent. For this particular case, the best approach to ensure that the man doesn’t end up harming himself or anyone else, is for the state government to appeal to the Supreme Court, asking them to direct the high court to ensure he is released only after a proper assessment.

The case is an outlier, according to the experts, who note that persons with such mental conditions tend to end up languishing in asylums or other facilities, even when they should be set free. Both possibilities are lamentable, and it is imperative that the courts do more to ensure that the right decisions are made for the patient and the safety of those around them.

With the coming into force of the Mental Healthcare Act (on 29 May 2018), things will perhaps get better. Under Section 105, if mental illness is being argued in any judicial proceeding, the court will need to refer this to the applicable State Mental Health Review Board to get an opinion. This should ensure that mental health professionals will be assessing the person even before the court’s eventual order, which means their treatment isn’t dependent on the courts remembering to follow the procedure.