1. This is an application by the learned Public Prosecutor for the correction of an incorrect procedure adopted by the learned Sessions Judge of Salem in S. C. No. 138 of 1950.
2. The accused Kandaswami Mudali who was tried for an offence under Section 302, Penal Code was found guilty but insane at the time of the commission of the act.
3. The learned Sessions Judge acquitted him under Section 84, Penal Code and made the following order:
"In order to meet the requirements of Section 471, Criminal P. C. the accused will continue on bail on the same sureties who will retain the accused in their safe custody, and produce him before Court as and when required pending final orders of the Government."
The learned Public Prosecutor rightly points out that the procedure followed by the learned Sessions Judge is incorrect. Before the amendment of Section 471, Criminal P. C., the Court acquitting a person on the ground of insanity had to report the case for the orders of the local Government. But Clauses (2) and (3) of the section were repealed by Act 4 of 1912 mainly with the object of relieving the local Government from the necessity of dealing with the case of such persons. The amended section requires only that the action taken by the Sessions Judge should be reported to the State Government. Secondly the words "detained in safe custody" in Section 471, Criminal P. C. have been judicially interpreted as not meaning "detained in the custody of friends and relatives."
As Section 471, Criminal P. C. now stands it is essential that the accused should be detained in a place. The word "detained" denotes curtailment of liberty. It is obligatory on the Court to order detention in a place and not with a person. In a case where a Court in issuing an order under Section 471(1), Criminal P. C. ordered the accused to be detained in the custody of his father-in-law and brother it was held that the order could not be sustained and had to be set aside. See --'Public Prosecutor v. Nellayappa Pillai', 1948-1 Mad LJ
4. The correct procedure to be followed is as follows and the operative portion of the order of the Sessions Judge should run thus :
"having found the accused guilty of murder under Section 302, Penal Code but insane at the time of the commission of the act I acquit him and direct him to be detained in the mental hospital and the action taken by me will be reported to the State Government. (The detention should be in the Mental Hospital, Madras, because the State Government has prescribed in G. O. No. 1096 (Public) dated 29-8-1913 the mental hospitals to which particular criminal lunatics of particular district should be sent namely the mental hospitals at Madras, Calicut and Vishakapatinam; and Salem criminal lunatics have to go to the Mental Hospital, Madras) ."
5. The learned Sessions Judge after having made this order should have detained the criminal lunatic in the jail at Salem and addressed the executive District Magistrate of Salem for making arrangements for the removal of the criminal lunatic to the Mental Hospital, Madras. The relevant rules are to be found in Chap. 19 portion B of the Criminal Rules of Practice. The subsequent responsibility for the removal of the criminal lunatic to the mental hospital, Madras, lies with the executive District Magistrate, the Medical Officer of the Jail and the police; and the rules regarding the escort etc., are set out in the standing orders of the Madras police so far as the police are concerned and the civil Medical Code so far as the Medical officers are concerned, and in the Madras Jail and Reformtory Manual, Volume I, so far as the Magistrates are concerned.
6. Therefore the order of the Sessions Judge has got to be varied as follows, namely, that the accused having been found guilty but insane the Sessions Judge should direct the detention of the criminal lunatic in the mental hospital, Madras, and in the meanwhile detain him in the local jail at Salem and address the executive District Magistrate for making arrangements for removal to the mental hospital, Madras, and finally report the action taken by him to the State Government in the Home Department.
7. On this criminal lunatic being removed to the Mental Hospital it will be open to his relatives to apply to the State Government for the release of the criminal lunatic on conditions. The privilege of deciding whether the accused shall be released or not lies with the State Government and not with Court. The State Government has prescribed elaborate rules in regard to the release of these criminal lunatics which are found set out in the Lunacy Manual published by Mr. Galletti, I.C.S. in 1906 and printed by the Superintendent, Government Press, Madras.
8. This criminal revision case of the learn ed Public Prosecutor is disposed of accordingly.