Release and Detension of an Accused having an Unsound Mind

CRIMINAL LAW

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Whether under section 466 of CrPC, the course of releasing the accused who is of unsound mind and incapable of making his defence on sufficient security must be adopted as a rule while the order for detaining him in safe custody is to be made only as an exception?

A bare reading of Section 466, CrPC, shows that in cases where the accused person is found to be of unsound mind and incapable of making his defence, the court has been conferred with special power to release him on sufficient security, notwithstanding whether the case is one in which bail may be taken or not. The sufficient security required is that of a person who binds himself (i) to properly take care of the accused, which includes his proper medical treatment, (ii) to prevent the accused from doing injury to himself or any other person, and (iii) to produce the accused when required before the court or before such officer as ordered by the court. If in the opinion of the court, bail should not be taken, i.e., the accused should not be released, or if the required sufficient security is not given, the court can order the accused to be detained in safe custody in such place and manner as it thinks fit. From the reading of Section 466, CrPC, it transpires that the primary course prescribed is to release the accused, who is of unsound mind and incapable of making his defence, on sufficient security while detaining him in safe custody secondary to the primary course. It, therefore, follows that the course of releasing such an accused on sufficient security must be adopted as a rule while the order for detaining him in safe custody is to be made only as an exception.

What may be the circumstances that can justify adopting the exceptional course of detaining the accused who is of unsound mind and incapable of making his defence in safe custody?

The answer to this question also lies within the provisions of Section 466. The noticeable point is that while conferring the discretion on the court, by using the word ‘may’, Section 466 provides an inbuilt guidance for the exercise of that discretion by making it conditional on giving sufficient security to properly take care of the accused and to prevent him from doing injury to himself or any other person. These two conditions are the touchstone on the basis of which the court is to exercise its discretion in either way. If keeping in view the facts and circumstances the court forms an opinion that in releasing the accused on bail, there is an apprehension that he would not be properly taken care of or prevented from doing injury to himself or any other person, it can then decline to release him on bail and direct for keeping him in safe custody in such place and manner as it may think fit. The facts and circumstances that are relevant in forming such an opinion by the court may be that no one from the kith and kin of the accused comes forward to give sufficient security for the fulfillment of the said conditions, or that his kith and kin have previously remained unsuccessful in preventing him from doing injury to other persons.

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