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8/3/2019 Defense of Insanity with reference to Amrit Bhushan Gupta v. Union of India
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Indian Penal Code Project
Amrit Bhushan Gupta
v.
Union of India
Compiled By
Ankit Chowdhri
10/09
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Table of Contents
Amrit Bhushan Gupta v. Union of India 1
Brief Faces of the Case 2
Defence of Insanity: An Introduction 2
Meaning of Insanity 3
Insanity in Law 3
Insanity in Medical Terms 4
Defence of Insanity in Various Criminal Jurisdictions 4
English Law on Insanity 4
Indian Law on Insanity 6
Law of Insanity in Other Codes 8
Call for Medical Opinion by the Court 9
Arguments relating to Section 84 of the Indian Penal Code 11
Arguments of the Defence 11
Arguments of the Prosecution 13
Final Observations of the Court & Judgement 15
Conclusion 16
Bibliography 17
Webliography 17
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Petitioner: Amrit Bhushan Gupta
v.
Respondent: Union of India
Date of Judgement: 29/11/1976
Bench: BEG, M. HAMEEDULLAH
RAY, A.N. (CJ)
SINGH, JASWANT
Citation: 1977 AIR 608: 1977 SCR (2) 240: 1977 SCC (1) 180
Act: Penal Code: S. 84. Person convicted and sentenced to death
turning insane afterwards. If execution should be stayed till he
became sane.
Headnote: A petition under Art. 226 of the Constitution was filed in the
High Court on behalf of the appellant, who was sentenced to
death, praying that, since the appellant was insane the State
should be restrained from carrying out the sentence. The High
Court dismissed the petition holding that if the appellant were
really insane, the appropriate authorities would take necessary
action. In appeal to this Court, it was contended that convicted
person who became insane after conviction and sentence could
not be executed until he regained sanity.1
1As it appears on the judgment.
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Brief Facts of the Case
Amrit Bhushan Gupta on the midnight of 21st
June, 1968 burnt alive three innocent
sleeping children aged 12, 8 and 5 years at Sriniwas Puri and also attempted to kill Tek
Chand Chanana. The District & Sessions Judge sentenced the accused to death with the
remark that even the extreme penalty of death may appear too mild for the gruesome murder
of three children by burning them alive. The Delhi High Court later confirmed the death
sentence on 23rd
September, 1969. Thereafter numerous plea of mercy and insanity were filed
by the relatives of Amrit Bhushan Gupta, a plea to the High Court of insanity was refused by
the Court. The Supreme Court also dismissed various petitions which are also mentioned in
the judgement by the Supreme Court. This was filed in the Supreme Court under Article 136
as appeal to the petition filed under Article 226 in the Delhi High Court.
Defence of Insanity: An Introduction
As the case in question has its focal point in the defence of insanity I have discussed
the same before proceeding to the case as decided by the Court.
A crime is a voluntarily act which is an outcome of an intent to cause an evil
consequence.2 There are certain essentials of crime. The actor must possess the following
conditions:
free will; intelligence to distinguish between good and evil; knowledge of facts upon which the good and evil of an act may depend; and knowledge that the act is prohibited by law.
Mens Rea is an essential element in every crime. There may be no crime of any nature
without an evil mind. There must be a mind at fault to constitute a criminal act. The
concurrence of act and guilty mild constitutes a crime. This theory has its basis in the latin
maxim actus non facit reum nisi mens sit rea which means that the act does not makes one
guilty unless he has a guilty intention. Lord Diplock in the case ofSweet vs. Parsley3
said,
An act does not make a person guilty of a crime unless his mind be so guilty.
2Gandhi, B.M.; Indian Penal Code; Eastern Book Company; Lucknow; 2
ndEd., 2006, p. 125.
3 1970 AC 132.
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But in the case of insane person, he may not understand the nature of the act. He
does not have the sufficient mens rea to commit a crime. Since a criminal intent is an
indispensable element in every crime, a person incapable of entertaining such intent may
not incur guilt.4
An insane person is not punished because he does not have any guilty mind
to commit the crime. The English law on insanity is based on the MNaghten rules and the
Indian Law that is codified in the Indian Penal Code, 1860 (IPC), s. 84, based on the
MNaghten rules.
Meaning of Insanity
Insanity in Law
A defect of reason, arising from mental disease, that is severe enough to prevent a
defendant from knowing what he did (or what he did was wrong). A person accused of a
crime is presumed sane and therefore responsible for his acts, but he can rebut this
presumption and escape a conviction if he can prove that at the time of committing the
crime he was insane.5
Insanity or unsoundness of mind is not defined in the act. It means
a disorder of the mind, which impairs the cognitive faculty; that is, the reasoning
capacity of man to such an extent as to render him incapable of understanding
consequences of his actions. It means that the person is incapable of knowing the nature
of the act or of realising that the act is wrong or contrary to law.6
A person, although of
unsound mind, who knows that he is committing an unlawful act, may not get the
benefit of IPC, S. 84. The nature and extent of the unsoundness must be so high so as to
impair his reasoning capacity and that he may not understand the nature of the act or that it
is contrary to law. It excludes from its preview insanity, which might be caused by
engendered by emotional or volitional factors.
There are four kinds of person who may be said to be non compos mentis i.e. not
of sound mind:
1. An idiot An idiot is one who from birth has defective mental capacity.This infirmary in him is perpetual without lucid intervals.
2. One made so by illness By illness, a person is made non compos mentis.4
Basus Indian Penal Code, Ashoka law House, New Delhi, 10th
Ed., 2007, p. 314.5A Dictionary of Law, Oxford University Press, 5
thEd., 2002, p. 254-55.
6 See Supra 4.
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He is therefore excused in case of criminal liability, which he acts under
the influence of this disorder;
3. A lunatic Lunatics are those who become insane and whose incapacitymight be or was temporarily or intermittent. A lunatic is afflicted by mental
disorder only at certain period and changes, having intervals of reason; and
4. One who is drunkThis is covered under Section 85 of the IPC.Insanity in Medical Terms
There is a difference between the medical definitions of insanity. According to
medical science, insanity is a disorder of the mind that impairs the mental facilities of a
man.
7
Insanity is another name for mental abnormalities due to various factors and existsin various degrees. Insanity is popularly denoted by idiocy, madness, lunacy, to describe
mental derangement, mental disorder and all other forms of mental abnormalities known
to medical science. Insanity in medical terms encompasses much broader concept than
insanity in legal terms. Therefore, the scope of the meaning of insanity in medical terms is
much wider when compared to its legal meaning.
Defence of Insanity in Various Criminal Jurisdictions
English Law on Insanity
The insanity defence has a long history, and is evolved after many tests that have
been tried and tested. The evolution is discussed below:
Wild Beast Test: It was the first test to check insanity that was laid down inthe case of R v. Arnold
8in 1724. Justice Tracy, a 13th century judge in
King Edwards court, first formulated the foundation of an insanity defence
when he instructed the jury that it must acquit by reason of insanity if it
found the defendant to be a madman which he described as a man that is
totally deprived of his understanding and memory, and doth not know what
he is doing, no more than an infant, than a brute, or a wild beast, such a one
is never the object of punishment.
7Gaur, K.D.; Textbook on the Indian Penal Code; Universal Law Publishing Co., 4
thEd., 2011, p. 152.
8 (1724) 16 St.Tr. 695.
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Good and Evil Test: This test was laid down in the case ofR v. Madfield.9The test laid down in this case is the ability to distinguish between good
and evil. In this case, the accused was charged for treason for attempting
to kill the King. The defence pleaded that he was not able to distinguish
between good and evil and wild beast test was unreasonable. He was
acquitted.
MNaghten Test: The law relating to the defence of insanity is to be foundin the rules set out inMNaghten Case
10that delineate the circumstances in
which an accused will be held not to have been legally responsible for his
conduct.
Rules of Insanity Plea Laid Down in MNaghtens Case
Daniel MNaghten was found to be insane and acquitted on a charge of murdering
Sir Robert Peels private secretary, it being his intention to kill Peel. He was committed to
the hospital but there was public outcry about the leniency of the verdict. The matter was
debated in the House of Lords where it was decided to seek the opinion of the judges on
legal principles relating to insanity. The rules laid down were:11
everyone is to be presumed sane and to possess a sufficient degree ofreason to be responsible for their crimes until contrary is proved to the
satisfaction of the jury;
to establish a defence of insanity, it must be clearly proved that at the timeof committing the act, the accused was labouring under such a defect of
reason, from the disease of the mind, as not to know he was doing what
was wrong;
as to his knowledge of the wrongfulness of the act, the judges said: if theaccused was conscious that the act was one which he ought not to do and
the same time the act was contrary to the law of the land, he is punishable;
and
Where a person under insane delusion as to existing facts commits anoffence in consequence thereof, criminality must depend on the nature of
9 (1760) 19 St.Tr. 885.10
(1843) 10 Cl&F 200.11 See Vibhute, K.I.; PSA Pillais Criminal Law, LexisNexis Butterworths Wadhwa Nagpur, 10
thEd., 5
th
Reprint, 2011, p. 138.
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the delusion. If he labours under partial delusion only, and is not in other
respects insane, he must be considered in the same situation as to
responsibility as if the facts with respect to which the delusion exists were
real.
Indian Law on Insanity
The Indian law relating to insanity has been codified in the IPC, S. 84 contained
also the general exceptions. The Section reads as under:
84. Acts of a person of unsound mind Nothing is an offence which is done by
a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of
knowing the nature of the act, or that he is doing what is either wrong or contrary to law.
Section 84 & MNaghtens Rules
IPC Section 84 deals with the law of insanity on the subject. This provision is
made from the MNaghten rules of England. In the draft penal code, Lord Macaulay
suggested two section (66 and 67), one stating that nothing is an offence which is done
by a person in a state of idiocy and the other stating that nothing is an offence which a
person does in consequence of being mad or delirious at the time of doing it to deal with
insanity.12
The Law Commissioners in replacing these two provisions by IPC, section 84
have adopted a brief and succinct form of the MNaghten rules.13
The use of the word
unsoundness of mind instead of insanity has the advantage of doing away with the
necessity of defining insanity and of artificially bringing within its scope different
conditions and affliction of mind which ordinarily do not come within its meaning but
which nonetheless stand on the same footing in regard to the exemptions from criminal
liability.
Unsoundness of Mind
The term unsoundness of mind has not been defined in the IPC. It means a s tate
of mind in which an accused is incapable of knowing the nature of his act or that he is
incapable of knowing the nature of his act or that he is incapable of knowing that he is
12Pillai, K.N.; Chandrasekharan, General Principles of Criminal Law, Eastern Book Company, 2005, p. 271.
13 Gaur, K.D.; Textbook on the Indian Penal Code; Universal Law Publishing Co., 4th Ed., 2011, p. 152.
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doing wrong or contrary to law.14
The insanity for the purposes of this section should be
of such a nature that it completely impairs the conative faculty of the mind, to such an
extent that he is incapable of knowing the nature of his act or what he is doing is wrong or
contrary to law.
Case Law Relating to Section 84
In Phula Bai v. State of Maharashtra,15
the accused was suffering from terminal
chronic illness. She jumped into a well with a child. The accused survived but the child died.
The medical evidence did not support insanity but the Court upheld the plea of unsoundness
of mind.
InEvavarasan v. State Represented by Inspector of Police,16 the Apex Court observed
What is important is that the depositions of the two doctors examined as court witnesses
during the trial deal with the mental health condition of the appellant at the time of the
examination by the doctors and not the commission of the offence which is the relevant point
of time for claiming the benefit of Section 84 I.P.C. The medical opinion available on record
simply deals with the question whether the appellant is suffering from any disease, mental or
otherwise that could prevent him from making his defence at the trial. It is true that while
determining whether the accused is entitled to the benefit of Section 84 I.P.C. the Court has
to consider the circumstances that proceeded, attended or followed the crime but it is equally
true that such circumstances must be established by credible evidence.
InMohan Lal @ Rajan Mohan Bhatnagar v. The State,17
the Supreme Court declined
the appeal of the accused as there was not enough evidence to prove whether the accused was
suffering from a fit of insanity at the time of commission of the offence.
The Accused while claiming non compos mentis has to prove the same.18
There is a
rebuttable presumption that the appellant was not insane, when he committed the crime, in
the sense laid down by Section 84 of the Indian Penal Code: the appellant may rebut it by
14 See Vibhute, K.I.; PSA Pillais Criminal Law, LexisNexis Butterworths Wadhwa Nagpur, 10th Ed., 5th
Reprint, 2011, p. 139.15
1976 CrLJ 1519.16 Delivered by the Supreme Court on 5th July, 2011. Judgment attached with this submission.17
Delivered by the Supreme Court on 23rd
August, 2011. Judgment attached with this submission.18 C. Sunilkumar v. State of Kerala, Delivered by the Supreme Court of India on the 12
thJanuary, 2011.
Judgment attached with submission.
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placing before the court all the relevant evidence oral, documentary or circumstantial, but
the burden of proof upon him is no higher than that rests upon a party to civil proceedings.19
The scope and ambit of the Section 84 of the Indian Penal Code also came up for
consideration before this Court in the case ofHari Singh Gond v. State of Madhya Pradesh,20
in which it has been held as follows:
Section 84 lays down the legal test of responsibility in cases of alleged unsoundness
of mind. There is no definition of unsoundness of mind in IPC. The courts have, however,
mainly treated this expression as equivalent to insanity. But the term insanity itself has no
precise definition. It is a term used to describe varying degrees of mental disorder. So, every
person, who is mentally diseased, is not ipso facto exempted from criminal responsibility. A
distinction is to be made between legal insanity and medical insanity. A court is concerned
with legal insanity, and not with medical insanity.
Surendra Mishra v. State of Jharkhand,21
the Honble Supreme Court reaffirmed the
previous discussed case law and observed that The mere fact that the accused is conceited,
odd, irascible and his brain is not quite all right, or that the physical and mental ailments from
which he suffered had rendered his intellect weak and affected his emotions or indulges in
certain unusual acts, or had fits of insanity at short intervals or that he was subject to epilepticfits and there was abnormal behaviour or the behaviour is queer are not sufficient to attract
the application of Section 84 of the Indian Penal Code.
Law of Insanity in other Codes
Insanity in United States of AmericaThe United States courts expanded upon the M'Naghten Rule by exempting from
criminal liability those who acted under irresistible impulse. This test focused on
exempting spur-of-the-moment reactions from criminal responsibility. Thus, courts,
following this rule, would not excuse crimes committed after prolonged contemplation.
19 Sudhakaran v. State of Kerala, Delivered by the Supreme Court on 26 th October, 2010. Judgment attached
with this submission.202008 (16) SCC 109 : AIR 2009 SC 31.
21 Delivered by the Supreme Court on 6th January, 2011. Judgment attached with this submission.
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Parsons v. State,22
a much-noted early case, exemplified this proposition. In Parsons,
a wife and daughter were accused of killing their husband/father by fatally shooting him. The
two defendants were tried jointly and both pled insanity.At the trial level, the jury found the
defendants guilty of murder with malice aforethought.
The strict M'Naghten standard for the insanity defence was used until the 1950s and
the Durham v. United States case.23
In the Durham case, the court ruled that a defendant is
entitled to acquittal if the crime was the product of his mental illness (i.e., crime would not
have been committed but for the disease). The test, also called the Product Test, is broader
than either the M'Naghten test or the irresistible impulse test. The test has much more lenient
guideline for the insanity defence, but it addressed the issue of convicting mentally ill
defendants, which was allowed under the M'Naghten Rule. However, the Durham standard
drew much criticism because of its expansive definition of legal insanity.
Defence of Insanity in FranceArticle 64 of the French Penal Code provides that there is no crime or offence when
the accused was in state of madness at the time of the act or in the event of his having been
compelled by a force which he was not able to resist.
Defence of Insanity in SwitzerlandSection 10 of the Swiss Penal Code states that any person suffering from a mental
disease, idiocy or serious impairment of his mental faculties, who at the time of committing
the act is incapable of appreciating the unlawful nature of his act or acting in accordance with
the appreciation may not be punished.The American Law Institute suggested that a person
is not responsible for criminal conduct if at the time of such conduct as a result of mental
disease or defect he lacks the substantial capacity either to appreciate the criminality of his
conduct or to confirm his conduct to the requirements of law.
Call for Medical Opinion by the Court
The Honourable Court observed that the whole objection of the proceedings in the
High Court and now before them seems to be to delay execution of the sentence of death
passed upon the appellant. In view of the number of times the appellant has unsuccessfully
222 So. 854 (Ala. 1887).
23 401 U. S. 481 (1971).
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applied, there can be little doubt that the powers of the High Court and of this Court ought
not to have been invoked again. The repeated applications constitute a gross abuse of the
processes of Court of which we would have taken more serious notice if we were not
disposed to make some allowance for the lapses of those who, possibly out of misguided zeal
or for some other reason, may be labouring under the belief that they were helping an
unfortunate individual desperately struggling for his life which deserves to be preserved. A
bench of this Court was persuaded to pass orders for observation of the convict and obtaining
certificates of experts on the mental condition of the convict.
The reports of the Medical Experts are as under:
Dr. P.B. Buckshey, Medical Superintendent and Senior Psychiatrist, Hospital forMental Diseases, Shahdata Delhi, certified as follows:
After careful consideration of the entire mental state of the accused, including his
behaviour, I am of opinion that Shri Amrit Bhushan Gupta is a person of unsound mind
suffering from Schizophrenia. Schizophrenia is a basically incurable type of insanity
characterised by remissions and relapses at varying intervals. Shri Gupta was also severely
and overwhelmingly depressed and appeared to have lost interest in life.
Dr. S.C. Malik, Assistant Professor of Psychiatry, G. B. Pant Hospital, New Delhi,
gave a more detailed certificate as follows: Amrit Bhushan Gupta remained mute throughout
the ten days period of observation. He however started communicating to me through writing
on 3rd day of encounter. He exhibits gross disturbance in thinking and his emotion- al life
appears to be disorganised. He is suffering from delusion that he is the incarnation of Christ
and that I come to his kingdom or Palace. He does not mutter to himself but at times keeps
on staring vacantly in space. He is unable to write coherent meaningful sentences. He coinsnew words and when asked to explain he says it is Technologem of myself as Christ. He
also had hallucinations e.g. that Russian planes are shooting his Bunkers and that I should be
helping him to drive them away. He exhibited depressive and suicidal I tendencies towards
later period of my observation period and broke off all communication as I did not give him
potassium Cyanide 'Poison' so that he (Christ) may go back to his Kingdom. In my opinion he
is suffering from 'SCHIZOPHRENIA' (Chronic) which is a serious mental derangement. He
is thus considered to be of unsound mind under the Indian Lunacy Act. 1912.
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Arguments relating to Section 84 of the Indian Penal Code
Insanity, to be recognised as an exception to criminal liability, must be such as to
disable an accused person from knowing the character of the act he was committing when he
commits a criminal act. Section 84 of the Indian Penal Code contains a principle which was
laid down in England in the form of MNaghten Rules. The section provides:
84. Nothing is an offence which is done by a person who, at the time of doing it, by
reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is
doing what is either wrong or contrary to law.
If at the time of the commission of the offence, the appellant knew the nature of the
act he was committing, as we assume he did, he could not be absolved of responsibility for
the grave offence of murder. A Constitution Bench of this Court has upheld the
Constitutional validity of the death penalty in Jagmohan Singh v. The State of U.P24
., we
have to assume that the appellant was rightly convicted because he knew the nature of his
acts when he committed the offences with which he was charged. The legality or correctness
of the sentence of death passed upon him cannot be questioned before us now. So far as the
prerogative power of granting a pardon or of remitting the sentence is concerned, it lies
elsewhere. We cannot even examine the facts of the case in the proceedings now before us
and make any recommendation or reduce the sentence to one of life imprisonment.
Arguments of the Defence
The contention which has been pressed before the Court, with some vehemence, by
learned Counsel for the appellant, is that a convicted person who becomes insane after his
conviction and sentence cannot be executed at all at least until he regains sanity.
In support of this contention learned Counsel has quoted the following passage from
Hales Pleas of the Crown Vol. I, p. 33:
If a man in his sound memory commits a capital offence, and before his arraignment
he becomes absolutely mad, he ought not by law to be arraigned during such his frenzy, but
be remitted to prison until that incapacity be removed; the reason is, because he cannot
24 AIR 1973 SC 947: 1973 SCR (2) 541.
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advisedly plead to the indictment; and this holds as well in cases of treason, as felony, even
the delinquent in his sound mind were examined, and confessed the offence before his
arraignment; and this appears by the Statute of 33 H. 8 Cap. 20 which enacted a trial in case
of treason after examination in the absence of the party; but this statute stands repealed by the
statute and, if such person after his plea, and before his trial, become of non-sane memory,
he shall not be tried, or, if after his trial he becomes of non-sane memory he shah not receive
judgment; or, if after judgment he becomes of non-sane memory, his execution shall be
spared; for where he of sound memory, he might allege somewhat in stay of judgment or
execution.
He also cited a passage from Coke's Institutes, Vol. III, p. 6, which runs as follows:
It was further provided by the said act of 33 H.S. that if a man attained of treason became
mad, that notwithstanding he should be executed; which cruel and inhuman law lived not
long, but was repelled, for in that point also it was against the common law, because by
intendment of law the execution of the offender is for example, ut poena ad paucos, metus
and omnes perveniat, as before is said; but so it is not when a mad man is executed, but
should be a miserable spectacle, both against law and of extreme inhumanity and cruelty, and
can be no example to others. The following passage from Blackstones Commentaries on the
Laws England Vol. IV, p. 18 and 19 was also placed before the Court:
The second case of a deficiency in will, which excuses: from the guilt of crimes,
arises also from a defective or vitiated understanding, viz., in an idiot or a lunatic. For the
rule of law as to the latter, which may easily be adapted also to the former, is that furiosus
furore solum punitur.25
In criminal cases, therefore, idiots and lunatics are not chargeable for
their own acts, if committed when under these incapacities; no, not even for, treason itself.
Also, if a man in his sound mind commits an offence, and before arraignment for it he
becomes mad, he ought not to be called on to plead to it, because he is unable to do so with
that advice and caution that he ought. And, if after he has pleaded, the prisoner becomes mad,
he shall not be tried; for how can he make his defence? If, after he be tried and found guilty,
he loses his senses before judgment, judgment shall not be pronounced; and if after judgment,
he becomes of non-sane memory, execution shall be stayed; for peradventure, says the
humanity of the English law, had the prisoner been of sound memory, he might have alleged
something in stay of judgment or execution. Indeed, in the bloody reign of Henry the Eighth,
25 Meaning: Madness alone punishes madmen.
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a statute was made, which enacted that if a person, being compos roentis, should commit high
treason, and after fall into madness, he might be tried in his absence, and should suffer death,
as if he were of perfect memory. But this savage and inhuman law was repealed. For, as is
observed by Sir Edward Coke the execution of an offender is, for example, ut poena ad
paucos, metus ad omnes perveniat; but so it is not a miserable spectacle, both against law,
and of extreme inhumanity and cruelty and can be of no example to others.
A passage from a modern work, An Introduction to Criminal Law, by Rupert Cross,
(1959), p. 67, was also read. It reads as follows: In conclusion it may be observed that there
are two other periods in the history of a person charged with a crime at which his sanity may
be relevant. First, although there may be no doubt that he was sane when he did the act
charged, he may be too insane to stand a trial in which case he will be detained during the
Queen's pleasure under the Criminal Lunatics Act, 1800 and 1883, pending his recovery.
Secondly, if he becomes insane after sentence of death he cannot be hanged until he has
recovered. In each of these cases the question of sanity is entirely a medical question of fact
and is in no way dependent on the principles laid down in MNaghtens case.
The rule that insanity at the time of the criminal act should be a defence is attributable
to the fact that the idea of punishing a man for that which was due to his misfortune is
revolting to the moral sense of most of the community. The rule that the accused must be fit
to plead is based on the undesirability of trying someone who is unable to conduct his
defence, or give instructions on the subject. The basis of the rule that an insane person should
not be executed is less clear. Occasionally, the rule is said to be founded on theological
grounds. A man should not be deprived of the possibility of a sane approach to his last hours.
Sometimes, the rule is said to be based on the fact that condemned men must not be denied
the opportunity of showing cause by why they should not be reprieved. Shri S.K. Sinha,
learned Counsel for the appellant, has, industriously, collected a number of statements of the
position in English law from the abovementioned.
Arguments of the Prosecution
On the other hand, learned Additional Solicitor General has relied on the following
statement of a modern point of view contained in a book by Mr. Nigel Walker on Crime and
Insanity in England (Vol. I: The Historical Perspective):
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Home Secretaries have been even more cautious in offering justifications for the
practice of reprieving the certifiably insane or the mentally abnormal. Shortt, though he cited
Coke, Hale, Hawkins, Blackstone, Hawles, and Stephen to prove that he was bound by the
common law, refrained from dwelling on their explanations of it which are, as we have seen,
far from impressive. The Atkin Committee, being lawyers, were more respectful to the
institutional writers, and argued that many of the reasons given for the merciful view of the
common law continue to have force even under modern conditions. Everyone would revolt
from dragging a gibbering maniac to the gallows. If they had reflected they would surely
have conceded that modern conditions greatly weakened two out of the three traditional
reasons. The abolition of public executions made Coke's argument irrelevant as well as
illogical; and Hale's argument--that if sane the condemned man might be able to produce a
sound reason why he should not be hanged--was greatly weakened now that the condemned
man's interests were so well looked after by his lawyers. As for Hawles argument that an
insane man was spiritually unready for the next world (which not even Hawles regarded as
the main objection)--were the Committee such devout Christians that they set store by it?
Equally odd was their remark that everyone would revolt from dragging a gibbering maniac
to the gallows, which sounded as if it was meant as an endorsement of one or more of the
traditional justifications, but if so could hardly have been more unfortunately phrased. Why
should it be more revolting to hang a maniac than a woman, a seventeen-year-old boy or a
decrepit old man? Must the maniac be gibbering before it becomes revolting? A more
logical justification was suggested by Lord Hewart, who opposed Lord Darling's attempt to
legislate on the lines recommended by the Atkin Committee. Lord Hewart suggested that the
medical inquiry should be concerned only with a single, simple question: If this condemned
person is now hanged, is there any reason to suppose from the state of his mind that he will
not understand why he is being hanged? Although this Suggestion would have appealed to
Covarrubias, it had little attraction either for the Home Office or for humanitarians in general,
for it was clearly intended to reduce the number of cases in which the inquiry led to a
reprieve. Nevertheless, given certain assumptions about the purpose of the death penalty, it
was at least more logical than the traditional justifications which the Atkin Committee had so
piously repeated. If, as Covarrubias and Hewart no doubt believed, the primary aim of a
penalty was retributive punishment, it could well be argued that the penalty would achieve its
aim only if the offender understood why it was being imposed. This argument is not open,
however, to someone who believes that the primary aim of a penalty such as hanging is the
protection of society by deterrence or elimination. The Atkin Committee would have been
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more realistic if they had contented themselves with the observation that for at least four
hundred years it had been accepted that common law forbade the execution of a mad man,
although the institutional writers explanations were obviously speculative and odd: and that
since 1884 certifiable insanity had been accepted as the modern equivalent of madness.
Final Observations of the Court & Judgement
Interesting as the statements on and origins of the Common Law rules on the subject
in England, against the execution of an insane person, may be, we, in this country, are
governed entirely by our statute law on such a matter. The Courts have no power to prohibit
the carrying out of a sentence of death legally passed upon an accused person on the ground
either that there is some rule in the Common Law of England against the execution of an
insane person sentenced to death or some theological, religious, or moral objection to it. Our
statute law on the subject is based entirely on secular considerations which place the
protection and welfare of society in the forefront. What the statute law does not prohibit or
enjoin cannot be enforced, by means of a writ of Mandamus under Article 226 of the
Constitution, so as to set at naught a duly passed sentence of a Court of justice.
The question whether, on that facts and circumstances of a particular ease, a convict,
alleged to have become insane, appears to be so dangerous that he, must not be let loose upon
society, lest he commits similar crimes against other innocent persons when released, or,
because of his antecedents and character, or, for some other reason, he deserves a different
treatment, are matters for other authorities to, consider after a Court has duly passed its
sentence. As we have already indicated, even the circumstances in which the appellant
committed the murders of which he was convicted are not before us. As the High Court
rightly observed, the authorities concerned are expected to look into matters which lie within
their powers. And, as the President of India has already rejected the appellant's mercy
petitions, we presume that all relevant facts have received due consideration in appropriate
quarters.
The Court deemed that the appeal to the Court was misconceived and cannot be
entertained furthermore.
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Conclusion
In the present case,Amrit Bhushan Gupta v. Union of India,26
it is a well-established
fact that the petitioner at the time of commission of the offence was well aware of the
consequences of his actions and only later did he become insane.
The argument that the madness of the madman being punishment enough though
sounds strong but there is no provision recognising the same. Under Section 84 of the IPC if
the person knows about the nature of the offence he shall be held liable. So, in other words
insanity subsequent to the commission of the offence in question does not being the act under
the defence under this Section. Also I feel that if this defence is recognised there may be a
scope of a lot of people taking fraudulent course to seek relief under the same.
Hence, I think the Supreme Court is well justified with the judgement given and
serves an important and milestone in the interpretation of general exceptions of criminal
liability.
26 1977 AIR 608, 1977 SCR (2) 240.
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Bibliography
A Dictionary of Law, Oxford University Press, 5th Ed., 2002. Basus, Indian Penal Code, Ashoka Law House, New Delhi, 10th Ed., 2007. Gandhi, B.M.; Indian Penal Code; Eastern Book Company; Lucknow; 2nd Ed., 2006. Gaur, Dr. Hari Singh; The Indian Penal Code, Law Publishers (India) Pvt. Ltd.,
Allahabad, 12th
Ed., 2005.
Gaur, K.D.; Textbook on the Indian Penal Code; Universal Law Publishing Co.,Delhi, 4
thEd., 2011.
Lal, Batuk; Commentary on the Indian penal Code, 1860, Orient PublishingCompany, Allahabad, 2
ndEd., Vol. I., 2011.
Pillai, K.N. Chandrasekharan, General Principles of Criminal Law, Eastern BookCompany, 2005.
Pillai, K.N. Chandrashekhran, Essays on the Indian Penal Code, The Indian LawInstitute Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2005.
Universals Criminal Manual, Universal Law Publishing Co., New Delhi, 2011. Vibhute, K.I.; PSA Pillais Criminal Law, LexisNexis Butterworths Wadhwa Nagpur,
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Webliography
Choudhary, Vaibhav, Insanity and Criminal Responsibility in Various Criminal LawJurisdictions
https://lawlib.wlu.edu/lexopus/works/604-1.pdf
(Accessed On: 30th
October, 2011)
Kejriwal, Ankit, Insanity as a Defencehttp://crimes.indlaw.com/search/articles/?fffde2f4-ea4e-42ef-b94b-bdd9b94092d4
(Accessed On: 22nd
October, 2011)
Amrit Bhushan Gupta v. Union of Indiahttp://indiankanoon.org/doc/1594389/
(Accessed On: 20th
October, 2011)
Also for other Indian Case Lawhttp://indiankanoon.org/
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