Person acquitted on such ground to be detained in safe custody :
Section- 335 . (1) Whenever the finding states that the accused person committed the act alleged, the Magistrate or Court before whom or which the trial has been held, shall, if such act would, but for the incapacity found, have constituted an offence,—
| (a) | Â | order such person to be detained in safe custody in such place and manner as the Magistrate or Court thinks fit; or |
| (b) | Â | order such person to be delivered to any relative or friend of such person. |
(2) No order for the detention of the accused in a lunatic asylum shall be made under clause (a) of sub-section (1) otherwise than in accordance with such rule as the State Government may have made under the Indian Lunacy Act, 1912 (4 of 1912).
(3) No order for the delivery of the accused to a relative or friend shall be made under clause (b) of sub-section (1), except upon the application of such relative or friend and on his giving security to the satisfaction of the Magistrate or Court that the person delivered shall—
| (a) | Â | be properly taken care of and prevented from doing injury to himself or to any other person ; |
| (b) | Â | be produced for the inspection of such officer, and at such times and places, as the State Government may direct. |
(4) The Magistrate or Court shall report to the State Government the action taken under sub-section (1).
COMMENTS
LAW COMMISSION REPORTS
Court’s discretion to order delivery of an insane person to his friends or relations – This section corresponds to section 471(1) of the old Code. Clause (b) of sub-section (1) and sub-section (3) of this section are new. Under old section 471, when a person was acquitted on the ground that he was insane at the time of the commission of the offence, the court had to order him to be detained and it was only the State Government which could order the delivery of the convicted person to the relatives. The new provision, however, gives the court a discretion to order the delivery of such a person to his friends or relatives on their executing a bond with suitable conditions. The genesis of this provision is best explained by the Law Commission as follows :
“Detained” implication of – “An order of the Court delivering the accused to the custody of his relatives appears to be illegal [Superintendent and Legal Remembrancer v. Srish Chandra Ray AIR 1928 Cal. 653 and Public Prosecutor v. Kandaswami Mudali AIR 1953 Mad. 355] as the law stands at present. The contrary view taken in an earlier case [A.B. Mahammad v. Emperor AIR 1922 Mad. 54] was based on the language of the section as it stood then, where the word “kept” was used. The word now used is “detained” and implies curtailment of liberty—Public Prosecutor v. Neelayappa Pillai AIR 1948 Mad. 291.
Delivery of convicted person – It has been suggested that if the person found guilty but insane at the time of acquittal, his friends and relatives should be allowed to keep him, after executing a bond with suitable conditions for keeping the peace for five years thereafter. Delivery of the convicted person to the relatives is a matter which can, at present, be dealt with under section 475 by the State Government only. The court can, no doubt, state in its report, that it will be safe to release the accused— Provincial Government v. Krishna Gopala Maratha AIR 1945 Nag. 77. But even if the accused is insane throughout the trial, he cannot be released under section 471.
Recommendation of English Committee – In England, the Criminal Law Revision Committee while observing that the Home Office is in a better position than a court to investigate questions relating to treatment of the accused, and that in such matters uniformity of practice was desirable, nevertheless recommended that in both cases, i.e., when there is a ‘special verdict’ (guilty but insane), and when there is a finding of unfitness to plead, the court should have a discretion not to make an order for detention if it considers on medical evidence that it is safe for the public to order the immediate release of the accused.
Custody of insane to his relative or friend favoured – We feel that the recommendations of the English Committee are applicable to Indian conditions also. At least, the mandatory provision in section 471 should be replaced by a provision which would leave some discretion to the court. The primary object of the detention order under section 471 is rehabilitation of the accused (now acquitted) and to prevent any trouble if he should relapse into insanity. It cannot be denied that the accused will receive more personal attention and care from his own relatives and friends than in a public lunatic asylum; and where his relatives or friends are ready to look after his and also undertake to ensure that he causes no injury to himself or others, there seems no reason why the accused should not be released to their custody. It can, no doubt, be said in favour of the present provision that if it is found after observation in the hospital that the person concerned is not a danger to others, he would be released under section 475. Even then, there should be no objection to a discretion being given to the court.”