Siddharth pandey 1

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THE TAMIL NADU NATIONAL LAW SCHOOL

B.A.LLB, (HONS) THIRD SEMESTER 2015-2016
HISTORY PROJECT
ON
“SIR HENRY MAINE- HIS LIFE AND ANCIENT LAW”

DATE- 6,OCTOBER, 2015

SUBMITTED BY- SUBMITTED TO-

SIDDHARTHPANDEY PROF.
(ROLL NUMBER-BA014006) (GUEST FACULTY)
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ACKNOWLEDGEMENT
At the outset, I thank the Almighty who gave me the strength to accomplish this
project with sheer hard work and honesty.

I take this opportunity to observe protocol to show my deep gratitude to our

revered history Course Teacher, PROF. GOLDA SAHOO ( FACULTY)
for his kind gesture in allotting me such topic as research project, which is full of
knowledge and is related to our future study of the constitution. Her timely
advice, direction and valuable assistance tremendously boosted me during the
making of this project.

Secondly, all this wouldn’t have been possible without my parents and friends
who gave their valuable time for guidance, boosted my confidence and helped me
a lot in completing this project without any drawbacks. Hence I am forever
indebted and grateful to them.

Thirdly, I am very much thankful to the staff and administration of TNNLS who
provided valuable sources of information in the form of library and database
connections.

The successful creation of this project is due to the background work and co-
operation of many persons. So I once again take this opportunity and privilege to
convey my deepest regards and thanks to all those who was involved directly or
indirectly in the making of this project.

Date:-6-10-15
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SUPERVISOR’S CERTIFICATE
This is to certify that the Research Project entitled: “SIR HENRY MAINE- HIS LIFE
AND ANCIENT LAW” submitted to the TAMIL NADU NATIONAL LAW
SCHOOL, TIRUCHIRAPPALLI in fulfilment of the requirements for internal
component for B.A; LL.B (HONS.), Third Semester is an original and bona-fide
research work carried out by SIDHARTH PANDEY under my supervision and
guidance. No part of this study has been submitted to any University for the award of
any Degree or Diploma whatsoever.

PROF. GOLDA SAHOO ( FACULTY

Date: 6-10-15

Place: Tiruchirappalli
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OBJECTIVE
This research paper is an attempt to analyse the defence of insanity under Indian Penal
Code mentioned in section 84 of the code.

RESEARCH METHODOLOGY & INTERPRETATION

This research is primarily descriptive and analytical in nature. Primary, Secondary

and Electronic resources have been avidly used to gather information about the topic.
Books and other references as guided by Faculty have been given prime importance
which was helpful in giving this project a firm structure. Websites, dictionaries and
articles have also been referred.
Footnotes have been provided wherever needed to acknowledge the source.

The researcher has primarily referred to secondary sources such as books and articles
while writing this research paper.

MODE OF CITATION
A uniform mode of citation has been used throughout this research paper which is
based loosely on the style prescribed in The Bluebook: A Uniform System of Citation.
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Date of Judgement: 29/11/1976

Bench: BEG, M. HAMEEDULLAH RAY, A.N. (CJ) SINGH,

JASWANT

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.

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.
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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. 1 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. Parsley 2said, ‘An act does not make a person guilty of a crime unless his mind be
so guilty.’ 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 M’Naghten rules and the Indian Law that is codified in the Indian Penal Code,
1860 (IPC), s. 84, based on the M’Naghten 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.3 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. 4
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
Gandhi, B.M.; Indian Penal Code; Eastern Book Company; Lucknow , p. 125.
2
1970 AC 132
3
Basu’s Indian Penal Code, Ashoka law House, New Delhi, 10 th Ed., 2007, p. 314.
4
A Dictionary of Law, Oxford University Press, 5th Ed., 2002, p. 254-55.
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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.
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.5 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. Arnold6 in 1724. Justice Tracy, a 13th century judge in King Edward’s 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.’
 Good and Evil Test: This test was laid down in the case of R v. Madfield.7
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.
 M’Naghten Test: The law relating to the defence of insanity is to be found in
the rules set out in M’Naghten Case 8that delineate the circumstances in
which an accused will be held not to have been legally responsible for his
conduct.

5
Gaur, K.D.; Textbook on the Indian Penal Code; Universal Law Publishing Co., 4 th Ed., 2011, p. 152.
6
(1724) 16 St.Tr. 695.
7
(1760) 19 St.Tr. 885.
8
(1843) 10 Cl&F 200.
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Rules of Insanity Plea Laid Down in M’Naghten’s Case

Daniel M’Naghten was found to be insane and acquitted on a charge of murdering
Sir Robert Peel’s 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:9
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.
Where a person under insane delusion as to existing facts commits an offence in
consequence thereof, criminality must depend on the nature of 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 & M’Naghten’s Rules

9
See Vibhute, K.I.; PSA Pillai’s Criminal Law, LexisNexis Butterworths Wadhwa Nagpur, 10 th Ed., 5th
Reprint, 2011, p. 138.
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IPC Section 84 deals with the law of insanity on the subject. This provision is made
from the M‘Naghten 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.10 The Law Commissioners in replacing these two provisions by
IPC, section 84 have adopted a brief and succinct form of the M’Naghten rules.11 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
doing wrong or contrary to law.12 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,13the accused was suffering from terminal

10
Pillai, K.N.; Chandrasekharan, General Principles of Criminal Law, Eastern Book Company , p. 271.
11
Gaur, K.D.; Textbook on the Indian Penal Code; Universal Law Publishing Co.., p. 152.
12
See Vibhute, K.I.; PSA Pillai’s Criminal Law, LexisNexis Butterworths Wadhwa Nagpur, , p. 139.
13
1976 CrLJ 1519.
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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,14 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.15
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 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.16 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,17 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,18 the Hon’ble 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.”

14
Delivered by the Supreme Court on 5th July, 2011. Judgment attached with this submission.
15
C. Sunilkumar v. State of Kerala,
16
Sudhakaran v. State of Kerala, Delivered by the Supreme Court on 26 th October, 2010. Judgment
attached with this submission.
17
2008 (16) SCC 109 : AIR 2009 SC 31.
18
Delivered by the Supreme Court on 6th January, 2011. Judgment attached with this submission.
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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. Parsons v. State,19 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.20 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.’

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 M’Naghten Rules. The

19
2 So. 854 (Ala. 1887).
20
401 U. S. 481 (1971).
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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 nthe
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.P21.,
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
Hale’s 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 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 Blackstone’s
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’(Madness alone punishes madmen.). In

21
AIR 1973 SC 947: 1973 SCR (2) 541.
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criminal cases, therefore, idiots and lunatics are not chargeable for 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, 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 M’Naghten’s 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): “Home
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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 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, malthough the institutional writers’ explanations were obviously
speculative and odd: and that since 1884 certifiable insanity had been accepted as the
modern equivalent of ‘madness’.

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
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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. In the present case, Amrit Bhushan Gupta v. Union of
India,22it 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.

BIBLIOGRAPHY

22
1977 AIR 608, 1977 SCR (2) 240.
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List of books referred to :

 A Dictionary of Law, Oxford University Press.

 Gandhi, B.M.; Indian Penal Code; Eastern Book Company; Lucknow.
 Gaur, K.D.; Textbook on the Indian Penal Code; Universal Law Publishing
Co., Delhi.
 Pillai, K.N. Chandrasekharan, General Principles of Criminal Law, Eastern
Book Company.
 Pillai, K.N. Chandrashekhran, Essays on the Indian Penal Code, The Indian
Law Institute Universal Law Publishing Co. Pvt. Ltd., New Delhi.
 Universal’s Criminal Manual, Universal Law Publishing Co., New Delhi.
 Vibhute, K.I.; PSA Pillai’s Criminal Law, LexisNexis Butterworths Wadhwa
Nagpur.

List of websites referred to:

 Choudhary, Vaibhav, “Insanity and Criminal Responsibility in Various

Criminal Law Jurisdictions”
 https://lawlib.wlu.edu
 Kejriwal, Ankit, “Insanity as a Defence”
 http://crimes.indlaw.com
 Amrit Bhushan Gupta v. Union of India
 http://indiankanoon.org
 http://indiankanoon.org
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Thankyou