SHEILA KAUL THROUGH MS. DEEPA KAULversusSTATE THROUGH C.B.I.

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                     [2013] 10 S.C.R. 231


      SHEILA KAUL THROUGH MS. DEEF"A KAUL                     A
                          v.
               STATE THROUGH C.B.I.
        (Criminal Appeal Nos.1676-77 of 2013)
                         OCTOBER 8, 2013
                                                              B
      rr.s. THAKUR AND VIKRAMAJIT SEN, JJ.]
     Code of Criminal Procedure, 1973 - s.482 - Prosecution
for commission of offences punishable u/ss. 7, 9, 13 (2) rlw
s.13(1)(d) of the Prevention of Corruption Act and s.120-8 rl C
w s.384 /PC-Application filed by accused-appellant seeking
exemption from personal appearance to answer charges
framed against her- Dismissed by trial Cowt - Order affirmed
by High Court in petition filed by appellant uls.482 CrPC -
Held: Trial Court, despite the report of medical board and D
deposition of Doctor, came to the conclusion that appellant
was not of 'unsound mind' nor was she incapacitated by her
age and illness - Since said finding had been specifically
questioned by the appellant, High Court should have adverted
to that aspect of the matter also - Process of appreciation of E
material concerning medical condition of appellant and her
alleged incapacity to make her defence was inevitable -
Inasmuch as the same escaped the attention of High Court,
order passed by it unsustainable - Matter remitted back to
High Court for fresh disposal in accordance with Jaw.          F

      The appellant is being prosecuted for commission of
offences punishable under Sections 7, 9, 13 (2) read with
Section 13 (1) (d) of The Prevention of Corruption Act and
Section 120-B read with Section 384 IPC. The trial court
(Special Judge, CBI) directed framing of charges against      G
all the accused including the appellant by his order dated
2nd February, 2012. By another order dated 9th May,
2012, the trial Court directed the appellant to appear in

                               231                            H
    232      SUPREME COURT REPORTS           [2013) 10 S.C.R.


A person to answer the charges framed against her. That
  direction came despite an application filed by the
  appellant in which it was, inter a/ia, pointed out that she
  was nearly 98 years of age and suffering from severe
  heart ailment and dementia which confined her to bed.
B The trial Court concluded that the appellant was capable
  of understanding questions put to her and giving
  appropriate answers although such questions may have
  to be repeated. The application filed by the appellant
  seeking exemption from personal appearance to answer
c the charges framed against her was, on the above basis,
  dismissed and the appellant directed to appear in person
  in the trial Court by Order dated 9th May, 2012.

      Aggrieved, the appellant filed Crl. M.C. No.1816 of
  2012 before the High Court under Section 482 CrPC in
D which she assailed not only Order dated 2nd February,
  2012 but also the latter Order dated 9th May, 2012. The
  same was dismissed by the High Court.

      In the instant appeal, the appellant contended that
E the High Court had while dismissing Crl.M.C. No.1816 of
  2012 completely lost sight of the fact that apart from order
  dated 2nd February, 2012, the appellant had also assailed
  the correctness of order dated 9th May, 2012; that the
  High Court did not advert to the said latter order nor
F recorded any reason for declining to interfere with the
  same.

          Allowing the appeals, the Court

      HELD: 1. The High Court did not examine the
G question whether the trial Court was justified in holding
  that the appellant was capable of understanding the
  questions that may be put to her and answering the same
  appropriately. While it is true that the application filed by
  the appellant did not, strictly speaking, bring her case
H under Section 329 CrPC, yet it is evident from the
   SHEILA KAUL THROUGH MS. DEEPA KAUL v.               233
            STATE THROUGH C.B.I.
averments made in the application that the appellant was      A
alleged to be incapable of making her defence on account
of her old age and multiple medical problems including
senile dementia. The report of the medical board also
prima tacie suggested that the plea raised by the appellant
was not wholly without any basis. The trial Court had         B
despite that report and the deposition of Dr. Khandelwal
come to the conclusion that the appellant was not of
'unsound mind' nor was she incapacitated by her age
and illness. All the same since the said finding had been
specifically questioned by the appellant the High Court       c
should have adverted to that aspect of the matter also.
Whether or not the appellant can be described to as a
person of unsound mind would largely depend upon the
value which the High Court attached to the report
submitted by the medical board and the deposition of Dr.      D
Khandelwal. The process of appreciation of material
concerning the medical condition of the appellant and
her alleged incapacity to make her defence was
inevitable. Inasmuch as the same escaped the attention
of the High Court, the order passed by it is rendered         E
unsustainable. The order passed by the High Court
insofar as the same dismissed Crl. M.C. No.1816 of 2012
 qua order dated 9th May, 2012 passed by the trial Court
is set aside and the matter is remitted back to the High
Court for fresh disposal in accordance with law. [Paras
8, 9 & 10] (236-G-H; 237-A-F]                                 F

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1676-1677 of 2013.

    From the Judgment & Order dated 20.02.2013 of the High
Court of Delhi at New Delhi in Crl. M.C. No. 1816 & 6432 of   G
2012 (stay)

    Dr. Sumant Bhardwaj, Archana Pathak Dave, Mridula Ray
Bhardwaj for the Appellant.
                                                              H
    234       SUPREME COURT REPORTS              [2013] 10 S.C.R.


A       Rakesh K. Khanna, ASG, B.V. Balaram Das, C.K.
    Sharma, P.L. Nigam, Syeed Tanweer Ahmad for the
    Respondent.

          The Judgment of the Court was delivered by
B         T.S. THAKUR, J.1. Leave granted.

       2. The appellant, a former minister in the Central
  Government is being prosecuted for commission of offences
  punishable under Sections 7, 9, 13 (2) read with Section 13
c (1) (d) of The Prevention of Corruption Act and Section 120-8
  read with Section 384 of the Indian Penal Code. Special Judge,
  CBI-I, Central Delhi, before whom the accused are being tried
  has directed framing of charges against all of them including
  the appellant herein by his order dated 2nd February, 2012. By
D another order dated 9th May, 2012, the trial Court directed the
  appellant to appear in person to answer the charges framed
  against her. That direction came despite an application filed
  by the appellant in which it was, inter alia, pointed out that she
  was nearly 98 years of age and is suffering from severe heart
E ailment and dementia which has confined her to bed. She
  further stated that the appellant required help and support even
  for her daily activities. She was, therefore, unable to travel to
  the Court for getting her plea recorded. A medical certificate
  as to her condition and state of health was also filed along with
F the application that alleged that it was not clear whether the
  applicant was in a condition to understand the consequences
  of the order passed against her and whether she was, in fact,
  suffering from dementia. The trial Court had entertained that
  application and directed SP, CBI to produce the appellant
  before a medical board on 23rd April 2012 for examination.
G
       3. The Medical Board comprising of six doctors, headed
  by Dr. S.K. Khandelwal, appears to have kept the appellant
  under observation for four days and submitted a report dated
  27th April, 2012 in which it was concluded that the appellant
H was not suffering from any major psychiatric disorder. The
     SHEILA KAUL THROUGH MS. DEEPA KAUL v.                     235
       STATE THROUGH C.B.I. [T.S. THAKUR, J.]
  po.ssibility of senile dementia could not, however, be ruled out.    A
  It was also stated that the appellant was unable to comprehend
  simple questions and provided monosyllabic responses after
  prolonged reaction time, despite questions being repeated to
  her a number of times. The report further suggested that the
  appellant's memory for immediate, recent and remote events           B
  and information about day-to-day events was impaired. She
. was· also found to be suffering from hypertension, coronary
  artery disease, anaemia and bilateral medical kidney disease.

      4. The trial Court on receipt of the above report asked the
 Director, AllMS to depute two members of the medical board            C
 to the Court to obtain a clearer picture of the situation. Pursuant
 to that direction Dr. Achal Srivastava, Dr. Vijaydeep Siddharth
 and Dr. S.K. Khandelwal appeared before the Court on 7th
 May, 2012 to make their statements. Dr. S.K. Khandelwal
 alone, it appears, was examined by the trial Court who                D
 concluded that the appellant was capable of understanding
 questions put to her and giving appropriate answers although
 such questions may have to be repeated. The Court observed:

      "11. So it becomes very clear that accused Sheila Kaul E
      is capable of understanding questions put to her and
      giving appropriate answers. Though, the questions might
      have to be repeated. Unfortunately for her, law does not
      prescribe any immunity for aged people. She might be
      quite old but, but there is no way out. Her absence has F
      caused considerable delay and is holding up the trial. I,
      therefore, direct accused Sheila Kaul to appear in
      person in the Court on the next date of hearing. She may.
      attend the Court in the same manner, she visited A/IMS.
      She is to answer the charge to be framed against her and G
      Jet the matter proceed."

     5. The application filed by the appellant seeking exemption
 from personal appearance to answer the charges framed
 against her was, on the above basis, dismissed and the
 appellant directed to appear in person in the trial Court by Order    H
    236     SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A   dated 9th May, 2012.

        6. Aggrieved by the refusal of the relief prayed for by her,
  the appellant filed Crl.M.C. No.1816 of 2012 before the High
  Court of Delhi under Section 482 of the Code of Criminal
B Procedure in which she assailed not only Order dated 2nd
  February, 2012 passed by the trial Court directing framing of
  charges but also latter Order dated 9th May, 2012 by which the
  trial Court directed the appellant to appear in person for getting
  her plea recorded. The High Court has by its Order dated 20th
C February, 2013 dismissed the said petition holding that there
  was no room for interfering with the order passed by the trial
  Court directing framing of charges against the appellant. The
  present appeals assail the correctness of the said order.

      • 7. When this matter initially came up for admission before
D us on 2nd April, 2013, we issued notice to the respondent
  limited to prayer (b) mentioned in Crl. M.C. No.1816 of 2012
  filed before the High Court. We have accordingly heard Dr.
  Sumant Bhardwaj, learned Counsel for the appellant who
  argued that the High Court had while dismissing Crl.M.C.
E No.1816 of 2012 completely lost sight of the fact that apart from
  order dated 2nd February, 2012, the appellant had also
  assailed the correctness of order dated 9th May, 2012 before
  it. The High Court has not, argued Mr. Bhardwaj, adverted to
  the said order nor recorded any reason for declining to interfere
F with the same. The impugned order, to the extent it dismissed
  Crl.M.C. No.1816 of 2012 without even addressing the question
  raised by the appellant relating to prayer (b) in the petition, was
  bad and deserved to be set aside on that count alone.

       8. There is in our opinion considerable merit in the
G submission made by Mr. Bhardwaj. The order passed by the
  High Court has not examined the question whether the trial
  Court was justified in holding that the appellant was capable
  of understanding the questions that may be put to her and
  answering the same appropriately. While it is true that the.
H application filed by the appellant did not, strictly speaking, bring
   SHEILA KAUL THROUGH MS. DEEPA KAUL v.                     237
     STATE THROUGH C.B.I. [TS. THAKUR, J.]

her case under Section 329 of the Code of Criminal Procedure,        A
yet it is evident from the averments made in the application that
the appellant was alleged to be incapable of making her
defence on account of her old age and multiple medical
problems including senile dementia.
                                                                    B
     9. The report of the medical board also prima facie
suggested that the plea raised by the appellant was not wholly
without any basis. The trial Court had despite that report and
the deposition of Dr. Khandelwal come to the ccnclusion that
the appellant was not of 'unsound mind' nor was she
incapacitated by her age and illness. All the same since the C
said finding had been specifically questioned by the appellant
the High Court should have adverted to that aspect of the matter
also. Whether or not the appellant can be described to as a
person of unsound mind would largely depend upon the value
which the High Court attached to the report submitted by the D
medical board and the deposition of Dr. Khandelwal. Suffice it
to say that the process of appreciation of material concerning
the medical condition of the appellant and her alleged incapacity
to make her defence was inevitable. In as much as the same
 has escaped the attention of the High Court, the order passed E
by it is rendered unsustainable.                                  \

     10. In the result, we allow these appeals set aside the order
passed by the High Court in so far as the same dismissed Crl.
M.C. No.1816 of 2012 qua order dated 9th May, 2012 passed            F \.
by the trial Court and remit back the matter to the High Court
for a fresh disposal of the matter in accordance with law. We
express no opinion as to whether the appellant can be said to
be of unsound mind within the meaning of Section 329 of the
Gr.P.C. as also the question whether the provisions of Section       G
318 Cr.P.C. can be invoked in case the appellant cannot be
said to be of unsound mind. It follows that the High Court shall
be free to take an appropriate view in the matter after hearing
learned counsel for the parties.

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    238      SUPREME COURT REPORTS               [2013) 10 S.C.R ..


A        11. Since the trial of other accused persons is also
    delayed on account of the pendency of the present
    proceedings, the High Court is requested to expedite the
    disposal of the matter and pass orders as far as possible within
    a period of three months from today.
B
    B.B.B.                                       Appeals allowed.