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Indian Penal Code Project

Amrit Bhushan Gupta


Union of India

Compiled By Ankit Chowdhri 10/09

Table of Contents

Amrit Bhushan Gupta v. Union of India Brief Faces of the Case Defence of Insanity: An Introduction Meaning of Insanity Insanity in Law Insanity in Medical Terms Defence of Insanity in Various Criminal Jurisdictions English Law on Insanity Indian Law on Insanity Law of Insanity in Other Codes Call for Medical Opinion by the Court Arguments relating to Section 84 of the Indian Penal Code Arguments of the Defence Arguments of the Prosecution Final Observations of the Court & Judgement Conclusion Bibliography Webliography

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Amrit Bhushan Gupta v.


Union of India

Date of Judgement: Bench:



1977 AIR 608: 1977 SCR (2) 240: 1977 SCC (1) 180


Penal Code: S. 84. Person convicted and sentenced to death turning insane afterwards. If execution should be stayed till he became sane.


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

As 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 of Sweet vs. Parsley3 said, An act does not make a person guilty of a crime unless his mind be so guilty.

2 3

Gandhi, B.M.; Indian Penal Code; Eastern Book Company; Lucknow; 2 nd Ed., 2006, p. 125. 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 5

Basus Indian Penal Code, Ashoka law House, New Delhi, 10 th Ed., 2007, p. 314. A Dictionary of Law, Oxford University Press, 5 th Ed., 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 incapacity might 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 drunk This 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 exists in 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 in the case of R v. Arnold8 in 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.

7 8

Gaur, K.D.; Textbook on the Indian Penal Code; Universal Law Publishing Co., 4 th Ed., 2011, p. 152. (1724) 16 St.Tr. 695.

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Good and Evil Test: This test was laid down in the case of R v. Madfield.9 The 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 found in the rules set out in MNaghten Case 10 that 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 of reason 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 time of 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 the accused 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 an offence in consequence thereof, criminality must depend on the nature of

(1760) 19 St.Tr. 885. (1843) 10 Cl&F 200. 11 See Vibhute, K.I.; PSA Pillais Criminal Law, LexisNexis Butterworths Wadhwa Nagpur, 10 th Ed., 5th 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 state 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

12 13

Pillai, K.N.; Chandrasekharan, General Principles of Criminal Law, Eastern Book Company, 2005, p. 271. Gaur, K.D.; Textbook on the Indian Penal Code; Universal Law Publishing Co., 4 th 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. In Evavarasan 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. In Mohan 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


See Vibhute, K.I.; PSA Pillais Criminal Law, LexisNexis Butterworths Wadhwa Nagpur, 10 th 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 th January, 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 of Hari 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 epileptic fits 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 America The 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.


Sudhakaran v. State of Kerala, Delivered by the Supreme Court on 26 th October, 2010. Judgment attached with this submission. 20 2008 (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 France Article 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 Switzerland Section 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
22 23

2 So. 854 (Ala. 1887). 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 for Mental 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 coins new 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

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,

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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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.


1977 AIR 608, 1977 SCR (2) 240.

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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, 4th Ed., 2011. Lal, Batuk; Commentary on the Indian penal Code, 1860, Orient Publishing Company, Allahabad, 2nd Ed., Vol. I., 2011. Pillai, K.N. Chandrasekharan, General Principles of Criminal Law, Eastern Book Company, 2005. Pillai, K.N. Chandrashekhran, Essays on the Indian Penal Code, The Indian Law Institute 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.

Choudhary, Vaibhav, Insanity and Criminal Responsibility in Various Criminal Law Jurisdictions https://lawlib.wlu.edu/lexopus/works/604-1.pdf (Accessed On: 30th October, 2011) Kejriwal, Ankit, Insanity as a Defence http://crimes.indlaw.com/search/articles/?fffde2f4-ea4e-42ef-b94b-bdd9b94092d4 (Accessed On: 22nd October, 2011) Amrit Bhushan Gupta v. Union of India http://indiankanoon.org/doc/1594389/ (Accessed On: 20th October, 2011) Also for other Indian Case Law http://indiankanoon.org/

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