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Synopsis

The Kerala High Court has postponed the trial of a 74-year-old accused suffering from Alzheimer's Dementia, holding that dementia falls under the category of intellectual disability, entitling the accused to the protections provided under the Code of Criminal Procedure (CrPC) and the Bharatiya Nagarik Nyaya Sanhita (BNSS) 2023. The court further clarified that these safeguards apply retrospectively to pending cases.

The court, presided over by Justice K. Babu, observed that the accused is unable to defend himself due to advanced dementia. The court noted that “a person suffering from ‘Alzheimer’s Dementia’, which is of such a degree that renders him incapable of making his defence, is entitled to the protection contained in Chapter XXV of the Code and Chapter XXVII of the Sanhita.”

The case pertained with the petitioner, who was accused of offences under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act. In the course of the investigation, the petitioner was diagnosed with Alzheimer's dementia by a neurologist at Palakkad District Hospital. The defence argued that due to the progression of the disease, the petitioner was incapable of making his defence, leading his counsel to file an application under Section 329 of the CrPC. It was further contended that the accused could no longer provide instructions to his counsel and was therefore entitled to protection under Chapter XXV of the CrPC.

The trial court initially rejected the plea, finding the accused mentally sound after a brief interaction. However, the defence insisted on further medical evaluation, which led the court to direct the District Hospital in Thrissur to assess the petitioner’s mental health. Subsequently, a report from the Neurology Department of the Medical College in Thrissur confirmed that the petitioner suffered from severe dementia, a progressive and irreversible condition. The report also recommended a more detailed psychiatric evaluation.

The petitioner’s counsel, Advocate T. Kabil Chandran, argued that Alzheimer's dementia falls within the ambit of “unsound mind” as defined by the CrPC, relying on Sections 329 of the CrPC and 105 of the Mental Healthcare Act, 2017, asserting that the court was obligated to first determine the soundness of the petitioner’s mind before proceeding with the trial.

Advocates V. Ramkumar Nambiar and Renjith B. Marar, appointed as Amici Curiae, argued that the progression of Alzheimer’s severely impairs cognitive functions and falls under the category of intellectual disability. They emphasised that under both the CrPC and BNSS, individuals suffering from such conditions should be granted appropriate legal protections, ensuring that they are not prejudiced during judicial proceedings.

The respondent, however, contended that the current legal framework does not explicitly recognise Alzheimer’s as a mental illness qualifying for procedural safeguards.

The court, after examining the arguments presented, observed that Alzheimer’s dementia, which affects memory, cognition, and behaviour, constitutes a form of intellectual disability under Section 368 of the BNSS. The court noted that the BNSS provides broader protection for persons suffering from intellectual disabilities, including those diagnosed with progressive conditions like Alzheimer’s and also recognised that the statutory framework under the CrPC and BNSS is designed to ensure a fair trial, particularly for those who cannot comprehend or defend against charges due to mental incapacities.

“Chapter XXVII of the Sanhita (BNSS) has given wider protection to a person of unsound mind or a person suffering from intellectual disability. Where two persons suffering from a mental disability or intellectual disability are dealt with differently, one under the Code, and the other under the Sanhita, it amounts to a violation of Article 14 of the Constitution. Among equals, the law should be equal and equally administered and should be treated alike. The guarantee of ‘equal protection’ under Article 14 is a guarantee of equal treatment of persons in ‘equal circumstances’. To preserve the fundamental right of an individual, the provisions of the Sanhita can be extended retrospectively to any proceedings initiated prior to 1.7.2024. The saving provision under Section 531 of the Sanhita shall not deter the enforcement of the fundamental right of an accused,” stated the court.

The court further ruled that provisions of the BNSS, enacted after the trial began, could be applied retrospectively, as procedural amendments typically have such effect. In denying these protections to the accused, the court held, “It is the right of the accused to have a fair trial as provided under Article 21 of the Constitution, which is sacrosanct of criminal jurisprudence. Therefore, if the provisions of the Sanhita are not extended retrospectively in cases where the accused person is affected by any intellectual disability of such a degree that renders him incapable of making his defence, there would be a failure of fair trial.”

Consequently, the court set aside the lower court’s directive and postponed the trial, instructing the trial court to reconsider the petitioner’s mental incapacity under the relevant provisions of the BNSS and CrPC.

The court concluded by appreciating the assistance of the Amici Curiae in arriving at the decision.

 

Cause Title: V.I. THANKAPPAN v STATE OF KERALA [CRL.MC NO. 6370 OF 2023]