DR. JAI SHANKER (LUNATIC) versus STATE OF HIMACHAL PRADESH

Citation: [1973] 2 S.C.R. 1 · Decided: 30-08-1972 · Supreme Court of India · Bench: J.M. SHELAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

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If 
DR. IAI SHANKER (LUNATIC) 
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(through Vijay Shanker brother guardian) 
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STATE OF HIMACHAL PRADESH 
August 30, 1972 
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[J. M. SHELAT, ACTING C.J., 1. D. DUA AND H. R. KHANNA, JJ] 
Code vf Criminal Procedure, 1898, Sec. 464 "Reason to believe that 
the accused i:; vf unsound mind and consequently incapable of making hi.J 
clefence"-Belief must be of reasonable person--Enquiry into the facts by 
a Magistrate of unsoundness is mandatory and to be held at threshold be~ 
fore proceeding with the case. 
The appellant was charged of committing the murder at Kulu. 
His 
ad,·ocate made an application to the Mag1strate oi Kulu ufs Sec. 464 of 
the Code oi Criminal Procedure stating that the accused has symptoms of 
impa.1rmcnt of cognative facult cs oi mind and otherwise of an abnormal 
behaviour, with a p. ayer to remove the appellant to the mental hospital. 
The Trial Magistrate came to the conciu.sion that the appellant was ·1ot 
"Ilfering from unsoundness of mind, on tl;e basis of the application 
made by the appe.lant lor remitting the money seized from his person to 
h;s mother and on the basis of replies to the question put to the appellant 
regardin5 the supply of copies of documents relied on by the p·osecut.on. 
A revision 
application fi.ed by the appellant against the re;ection of the 
application was dismissed by the Sc'5ions Court. On rev;s:on to the High 
Court, the learned si1gle Judge directed that the 
appellant should 
be 
exa1nined and kept u1der observatio11 in the· Snowdown Hospital, Simla, 
\\:hii::h is a general hosp tal. 
After the exami 'ation by two psychistricts 
at Simla hospital, they recommended the e~amination c>f the appe11ant in 
the proper mental hospital. 
As the recommendation was not carried out 
the appellant moved the High Court under section 561 (A) of the Code 
for the impkmeotation of the earlier order. The High Court clarified the 
earlier order and rejected the application ufs 561 (A) holdhg that the 
order was complied with. 
On an application for Teview, the High Court 
observed that whether the recommendalons of the s:mla Hospital should 
or should not be fo'lowed lay within the powers of the trial Magistrate. 
The trial Magistrate misunderstood the order to mean that no prelimi 1 arv 
enquiry, as required by Sec. 464 was necessary and committed the appel-
lz...,t's case for trial by Sessions Court. The committal order was chal'eng-
ed by the appellant by way of revision in the Sessions Cou't, and then in 
the Hi~h Court. 
The High Court held that the committing Magistrate 
had sufficient material to believe that the appellartt was not suffering from 
unsoundness of mind and therefore it was not necessary for him to act 
under Sec. 464. 
Allowing the appeal, 
HELD : The words "reason to believe" mean a belief which a reason-
able occson would entertain on facts before him. The burden was on the 
appellant to establish that he was suffering from the ur-..ound-ess of 
mind. The provisions regarding the enquiry in the unsoundness of mind 
are mandatory and the Magistrate is bound to e"quire before he proceeds 
with the case. 
Such enqu'ry is to be held at the threshold. 
The trial 
Magist'ate did not hold such enquiry and did not call uoon the apoel'ant 
to establish the mental infirmity. 
The proper course fpr the Magistrate 
in v;ew of the direcfons of the Hi~h Court and the provisions of Sec. 464 
was to send the annellant to the mental hospital for observations. [9 A] 
2-L348Sup.C.l.f73 
2 
SUPREME COUllT llPOllTS 
[1973) 2 s.c.1.. 
Boeh tile c:ommittal order and tho High Court'• order were set aside 
A 
and the trial Magistrate waa di .. ected to bold an enquiry u/s 464 and give 
opportunity to the appellant to produce the evidence regarding his un: 
IDUlldnem of mind. 
CKIMINAL 
APPELLATE 
JURISDICTION : Criminal Appeal 
No. 279 of J 971. 
Appeal by special leave from the judgment and order dated 
September 17, 1971 of the Himachal Pradesh High Court at Simla 
in Ctiminal Revision No. 17 of 1971. 
R. L. Kholi, for the appellant. 
V. C. Mahajan and R. N, Sachthey, for the respondent. 
The Judgment of the Court was delivered by 
SHELAT, ACTING C.J.-The appellant was charged of having 
committed on April 24, 1970 the murder of a lady doctor, Dr. 
Vaidya, at KuJu. On May 4, 1970, he was arrested on the aforesaid 
allegation. 
On May 9, 1970, his advocate made an application 
before the Magistrate, Kulu under s. 464 of the Code of Criminal 
Procedure, 

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