defense of insanity with reference to amrit bhushan gupta v. union of india

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 emotional 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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Page | 15

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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Page | 16

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,

10th

Ed., 5th

Reprint, 2011.

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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