CRL.M.C. 7132/2026 $~94 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision:24th September 2026 # CNR No. DLHC010457312026 + CRL.M.C. 7132/2026 & CRL.M.A. 29826-29827/2026 RAJ KUMAR PATHAK .....Petitioner Through: Mr. Mrityunjay Singh, Mr. Saikat Khatua and Mr. Mukesh Rawat, Advocates. versus STATE (NCT OF DELHI) .....Respondent Through: Mr. Mukesh Kumar, APP for State SI Mohit Bansal, PS Khyala. SI Tarsem Lal, PS South Avenue (Sewa Tirth) CORAM: HON'BLE MR. JUSTICE AMIT BANSAL AMIT BANSAL, J. (Oral) CRL.M.A. 29827/2026 (exemption) 1. Allowed, subject to all just exceptions. CRL.M.C. 7132/2026 2. The present petition has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita 2023 (‘BNSS’) seeking setting aside of the order dated 15th September, 2026 passed by the ASJ-09, West District, Tis Hazari Court, Delhi, whereby the petitioner’s application under Section 329 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’) seeking constitution of an Expert Medical Board in relation to the mental condition of the petitioner has been dismissed. Signed By:VIVEK MISHRA Signing Date:28.09.2026 19:53:55 Signature Not Verified CRL.M.C. 7132/2026 3. Brief facts necessary for deciding the present petition are as under: 3.1. The petitioner is an accused in FIR No. 188/2020, dated 12th March 2020, registered at P.S. Khyala, Delhi, under Section 326B of the Indian Penal Code, 1860 (“IPC”) and is presently facing trial before the Trial Court. The trial is presently pending at the stage of defence evidence under Section 313 Cr.P.C. 3.2. After completion of the prosecution evidence, the accused filed an application on 21st August 2026 under Section 329 Cr.P.C., Section 45 of the Indian Evidence Act, 1872/Section 39 of the Bharatiya Sakshya Adhiniyam, 2023 and Section 105 of the Mental Healthcare Act, 2017 seeking constitution of an Expert Medical Board for examination of his psychiatric condition during the relevant period and its possible effect upon his mental capacity at the time of commission of the alleged offence. 3.3. The Trial Court, vide order dated 15th September, 2026, dismissed the aforesaid application. 4. Aggrieved by the aforesaid, the present petition has been filed. 5. The relevant extracts from the order of the Sessions Court are set out below: Signed By:VIVEK MISHRA Signing Date:28.09.2026 19:53:55 Signature Not Verified CRL.M.C. 7132/2026 Signed By:VIVEK MISHRA Signing Date:28.09.2026 19:53:55 Signature Not Verified CRL.M.C. 7132/2026 6. Counsel for the petitioner submits that there is an error committed by the Sessions Court inasmuch as the defence of unsound mind could only be taken by the petitioner at the time of defence evidence. Therefore, the finding of the Sessions Court that the petitioner did not take this defence earlier is erroneous. Reliance is placed on the judgments of this Court in Kamal Bhardwaj v. State, 2016 SCC OnLine Del 4315 and Inderjit Singh v. Central Bureau of Investigation, 2024 SCC OnLine Del 2931. 7. I have heard counsel for the parties. 8. The tenor of the application filed by the petitioner under Section 329 of the CrPC before the Trial Court assumes significance as the principal emphasis therein was on the alleged mental condition of the petitioner at the time of commission of the offence, and on obtaining an expert opinion as to whether such condition affected his capacity on the date of the alleged occurrence. Such a plea, in substance, pertains to the statutory defence of unsoundness of mind contemplated under Section 84 of the IPC, which is concerned with the mental capacity of an accused at the time of doing the act. Section 329 Cr.P.C., on the other hand, operates in a different field and is attracted where, during the course of trial, the accused is found to be of unsound mind and consequently incapable of making his defence. 9. For ease of reference, Section 84 of the IPC and Section 329 Cr.P.C. are set out below: “84. Act 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. Signed By:VIVEK MISHRA Signing Date:28.09.2026 19:53:55 Signature Not Verified CRL.M.C. 7132/2026 “329. Procedure in case of person of unsound mind tried before Court.— (1) If at the trial of any person before a Magistrate or Court of Session, it appears to the Magistrate or Court that such person is of unsound mind and consequently incapable of making his defence, the Magistrate or Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Magistrate or Court, after considering such medical and other evidence as may be produced before him or it, is satisfied of the fact, he or it shall record a finding to that effect and shall postpone further proceedings in the case. Provided that if the accused is aggrieved by the information given by the psychiatric or clinical psychologist, as the case may be, to the Magistrate, he may prefer an appeal before the Medical Board which shall consist of (a) head of psychiatry unit in the nearest Government hospital; and (b) a faculty member in psychiatry in the nearest medical college.] (2) If such Magistrate or Court is informed that the person referred to in sub- Section (1-A) is a person of unsound mind, the Magistrate or Court shall further determine whether unsoundness of mind renders the accused incapable of entering defence and if the accused is found so incapable, the Magistrate or Court shall record a finding to that effect and shall examine the record of evidence produced by the prosecution and after hearing the advocate of the accused but without questioning the accused, if the Magistrate or Court finds that no prima facie case is made out against the accused, he or it shall, instead of postponing the trial, discharge the accused and deal with him in the manner provided under Section 330: Provided that if the Magistrate or Court finds that a prima facie case is made out against the accused in respect of whom a finding of unsoundness of mind is arrived at, he shall postpone the trial for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused. (3) If the Magistrate or Court finds that a prima facie case is made out against the accused and he is incapable of entering defence by reason of mental retardation, he or it shall not hold the trial and order the accused to be dealt with in accordance with Section 330.” [Emphasis supplied.] 10. At the outset, it is necessary to notice the distinction between Section 84 IPC and Section 329 Cr.P.C. Section 84 IPC deals with the mental Signed By:VIVEK MISHRA Signing Date:28.09.2026 19:53:55 Signature Not Verified CRL.M.C. 7132/2026 condition of a person at the time of doing the act and provides a defence where, by reason of unsoundness of mind, the person is incapable of knowing the nature of the act or that what he is doing is wrong or contrary to law. Section 329 Cr.P.C., on the other hand, deals with the situation where, at the trial, it appears to the Court that the accused is of unsound mind and consequently incapable of making his defence. 11. In Inderjit Singh (supra), relied upon by the petitioner, it has been observed that sub-sections (1) and (2) of Section 329 Cr.P.C. both operate at different stages of trial. The provision of sub-section (1) of Section 329 CrPC comes into play prior to the conclusion of prosecution evidence. Sub- section (2) of Section 329 Cr.P.C. entails that the same operates at a stage after the prosecution evidence has been closed and the stage of entering the defence of the accused has been reached. The relevant extracts of the said judgment are set out below: “21. A bare perusal of sub-section (1) and (2) of Section 329 CrPC shows that both operate at different stages of trial. The provision of sub -section (1) of Section 329 CrPC comes into play prior to the conclusion of prosecution evidence and this become apparent from the use of expression “if at the trial” and “incapable of making his defence”. At the said stage of the trial, if the court comes to the conclusion that owing to unsoundness of mind an accused person is incapable of defending himself in a criminal trial and the court is satisfied of the said fact based on the medical and other evidence produced before it, the court will record a finding to that effect and postpone further proceedings in the case. 22. A reading of sub-section (2) of Section 329 CrPC entails that the same operates at a stage after the prosecution evidence has been closed and the stage of entering the defence of the accused has reached. This becomes apparent from the use of expression “unsoundness of mind renders the accused incapable of entering defence”. At this stage if the accused is found incapable to enter defence owing to the unsoundness of mind, the court is Signed By:VIVEK MISHRA Signing Date:28.09.2026 19:53:55 Signature Not Verified CRL.M.C. 7132/2026 under obligation to examine the record of evidence and hear the advocate of the accused, and may discharge the accused if the court finds that no prima facie case has been made out, instead of postponing the trial. The proviso to sub-section (2) of Section 329 CrPC deals with the converse situation where the court on examining the record of evidence finds that the prima facie case is made out against the accused in respect of whom a finding of unsoundness of mind is arrived at, then the court shall postpone the trial for such period as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused.” [Emphasis supplied.] 12. The fact that the petitioner has raised the plea at the stage when the prosecution evidence has concluded does not, by itself, render the application not maintainable under Section 329 Cr.P.C. Therefore, the mere stage at which the present application has been filed cannot, by itself, be a ground for rejecting it. However, the mere assertion of unsoundness of mind does not, by itself, warrant constitution of a Medical Board. The statutory requirement is that the circumstances before the Court must give rise to the requisite basis for an enquiry into the fact of unsoundness of mind and the consequential incapacity of the accused to make his defence. merge with 12 13. Attention of the Court has been drawn to documents filed before the Sessions Court to indicate that the petitioner suffers from unsoundness of mind. A perusal of all the documents shows that they are dated much after the date of commission of the offence. Therefore, the Sessions Court has correctly noted in the impugned order that the documents do not pertain to the time when the offence was committed. 14. Even otherwise, none of the documents indicates that the petitioner suffers from unsoundness of mind. The impugned order also records that the Sessions Court has interacted with the petitioner and did not find that the Signed By:VIVEK MISHRA Signing Date:28.09.2026 19:53:55 Signature Not Verified CRL.M.C. 7132/2026 petitioner is suffering from any unsoundness of mind. 15. In Kamal Bhardwaj (supra), the Court was of the view that in the event the petitioner has placed prima facie documents to show that he was mentally retarded, the Court was to refer the matter to seek opinion of the psychiatrist. The judgment in Kamal Bhardwaj (supra) cannot come to the aid of the petitioner as he has failed to produce documents to prima facie show that he was mentally unsound. 16. In these circumstances, this Court is not inclined to interfere with the impugned order. 17. The petition is dismissed accordingly. AMIT BANSAL, J SEPTEMBER 24, 2026 Rzu Signed By:VIVEK MISHRA Signing Date:28.09.2026 19:53:55