In Re: Avayambal

Gokulakrishnan, J.—This it a petition filed under S. 335(3), Crl. P.C. praying this Court to direct the delivery of the accused in C.A. No,

666 of 1978 to his mother, the petitioner herein, on such terms and conditions as this Court may deem fit. In the judgment rendered by us on 3rd

August, 1979 in C.A. No. 666 of 1978, we have stated :-

We have absolutely no hesitation in coming to the conclusion that the act of violence committed by the appellant on his wife was done while he was in an unsound state of mind and as such, he was incapable of knowing the nature of the act and he would not have been aware that the act done by him was wrong or contrary to law Hence, we hold that the appellant Is entitled to have the benefits of the provisions of S. 84.I PC. which will, in

turn, give him the benefit of acquittal. Hence, the appellant, is acquitted of the offence of murder charged against him, and the conviction and the sentence imposed upon him by the learned Sessions Judge in Sessions Case No. 40 of 1978 are set aside. The appellant is acquitted. It is also directed as per provision under S. 335,Crl PC. that the appellant is kept in the Government Mental Hospital, Kilpauk. till he is declared fit to be discharged from the said hospital.

At the time of rendering the judgment, there was no such application as the one now before us. The present application, which is filed under S.

335(3), Crl. P.C. is for delivering the accused to the custody of his mother. S. 335(3), Crl. P.C. states :

No order for the delivery of the accused to a relative or friend shall be made under CI. (b) of Sub-s. (I), except upon the application of such relative or friend and on his giving security to the satisfaction of the Magistrate or Court that the person delivered shall-

(a) be properly, taken care of and prevented from doing injury to himself or to any other person;

(b) be produced for the inspection of such officer, and at such times and places, as the State Government may direct.

There is also power for the State Government under S. 339, Crl. P.C. to pass similar orders. Inasmuch as the petitioner has invoked the jurisdiction of this Court under S. 335(3), Crl. P.C. we have to consider the request made by the mother of the appellant in C.A. No. 666 of

1978. The petitioner is no other than the mother of the appellant and she has also been appointed, as per her averment, as the guardian of the

Lunatic's property in O.P. No. 11 of 1978 under the provisions of the Indian Lunancy Act. She has averred in paragraph 5 of her affidavit in support of this petition that when she visited the hospital to see her son, the appellant in the above appeal, she: found his physical condition has deteriorated and as such the custody of the appellant may be given to her.

Taking into consideration S. 335(3), Crl. P.C. and also the fact that the mother, who has also been appointed as the property guardian of the

appellant is praying to have the custody of the appellant herein, we are inclined to hand over the custody of the appellant in C.A. No. 666 of 1978

to the petitioner herein. In these circumstances1, the custody of the appellant in C.A. No. 666 of 1978, who is now undergoing treatment in. the mental hospital at Kilpauk, Madras, may be given to the petitioner, i.e., the mother of the appellant, on her executing the necessary security bond as provided in S. 335(3) (a) and (b), Crl. P.C. to the satisfaction of the IV Metropolitan Magistrate, Saidapet'', Madras.