Section 84 of the PPC and sections 464 and 465 of the Cr.P.C are distinct. The object and circumstances in which they are attracted are entirely different.

Section 84 is one of the exceptions or defence under Chapter IV of the PPC and if an accused is able to prove it then the latter can avoid liability for the commission of a crime. The accused has to prove that he or she, as the case may be, 'did not appreciate the nature or quality of wrongfulness of the acts'. The expressions used by the legislature describe the conditions for establishing a legally sufficient excuse for the actions which otherwise would expose the accused to criminal liability. An accused has to prove that, at the time of committing the acts, he/she was 'incapable of knowing the nature of the act' or that when the act was done, the latter was incapacitated to appreciate that it was either wrong or contrary to the law. The reason for the incapacity is 'unsoundness of mind'. The plea is thus relatable to cognitive insanity i.e. the mental state and mental process at the time of committing the act. It must be so impaired due to a mental disease or defect that that the person is incapable of knowing the nature or quality of the act and its consequences. The 'unsoundness of mind' is in the context of cognitive impairment; when the doer of the act becomes oblivious of the nature of the act or becomes incapable of appreciating that what he or she is doing is wrong or contrary to law. Any act committed or done by reason of ‘unsoundness of mind’ is immune from being exposed to criminal liability because of want of criminal intent. In other words, the onus required to be discharged by the accused is to prove that at the time of doing the act the crucial factor of mens rea did not exist. The mere existence of actus reus is not sufficient for attracting criminal liability. The existence of both actus reus and means rea are essential for establishing the guilt of an accused and to hand down the prescribed punishment. It is noted that Article 121 of the Order of 1984 explicitly provides that the burden of proving that the case of an accused comes within the ambit of one of the exceptions described under the PPC is on the person or the accused who takes such a plea.

Chapter XXXIV of the Cr.P.C, titled “Lunatics,” is attracted at the stage of an inquiry or trial of an offence. Section 464 of the Cr.P.C. is relevant when an inquiry or a trial is being held by a Magistrate. In case of trial by a Court of Sessions, section 465 of the Cr.P.C. becomes relevant and applicable. The provisions of section 465 are attracted if the conditions described therein are fulfilled i.e. (i) the presence of the person before the court of sessions; (ii) the latter appears to the court at the trial to be of unsound mind; (iii) the

person by reason of unsoundness of mind is incapable of making his or her defence. If these three conditions are fulfilled then it becomes mandatory for the trial court in the first instance to try the fact of such unsoundness of mind or incapacity of the accused to make his or her defence. In the eventuality of being satisfied of the existence of such a fact, it becomes mandatory for the trial court to record its findings to that effect and postpone further proceedings in the case. Sub section (2) of section 465 declares that the trial of the fact of unsoundness of mind and incapacity of the accused shall be deemed as part of the trial pending before the court. The other sections of Chapter-XXXIV describe the consequences and procedure required to be adopted in different eventualities. A plain reading of ChapterXXXIX of the Cr.P.C. as a whole, unambiguously shows that the procedure prescribed therein is confined to the stage of inquiry or trial, as the case may be, and not to the unsoundness of mind at the time when the act was committed resulting in the inquiry or trial.

Law clearly draws a distinction between section 84 of the PPC and the provisions of Chapter XXXIV of the Cr.P.C. The former pertains to a plea of defence taken by an accused in order to avoid liability for the commission of a criminal act or offence. Its relevance and nexus is with the time when the act constituting an offence was done. On the other hand, Chapter XXXIV of the Cr.P.C is attracted at the stage of inquiry or trial before a Magistrate or a Court of Sessions, as the case may be. It becomes applicable when the cognitive impairment of an accused renders him or her incapable of making a defence. Such a condition has obvious consequences in the context of the principles of a fair trial. The obligation of the court under section 465 of the Cr.P.C is to ensure that the principles of a fair trial are met and has no relevance with the moment or time when the act which is the cause of the inquiry or trial was done. The trial court is not bound to determine the fact of 'unsoundness of mind' merely because the accused feigns insanity, but if it appears to the court that the accused may not be capable of putting up a defence then it becomes mandatory to try the question of unsoundness of mind as a fact and resort to medical evidence. It, therefore, has no nexus with proving or disproving the plea taken by an accused under section 84 of the PPC because that is in the context of existence of mens rea at the time of the commission of the offence. In the case of a plea taken under section 84 of the PPC, the onus has to be successfully discharged by the accused and that too on the basis of cogent and reliable medical evidence and testimony of experts. In case of Chapter XXXIV of the Cr.P.C there is no obligation on the Magistrate or the Sessions Court, as the case may be, to give any finding of fact in relation to the cognitive impairment of an accused at the time when the act constituting the offence was committed or done.

Crl. Appeal No. 65 of 2019

Sami Ullah Vs. The State and another