Despite being mentally unsound, Jai Parkash languished in a jail in Jammu due to lack of sufficient follow-up of his case by the judiciary, police and prison authorities

Jammu, Jammu and Kashmir: Jai Parkash (49) spent 22 years at Amphalla district jail in Jammu without trial, despite being suspected to be of “unsound mind” in the police reports submitted in the city court in 2001. His prolonged detention might have continued indefinitely, had it not been for his inclusion in the list of undertrials granted special remission during the Azadi ka Amrit Mahotsav, commemorating India’s 75th year of Independence.

By the time Parkash got back to his village Kamalpur in Chandauli district of Uttar Pradesh in 2022, his mother, brother and sister had passed away, while his father was paralysed.

He was reported missing by his family in 2001. “They had filed a police complaint, but nobody even informed them that he was arrested,” said Sudama Jaiswal (34), Parkash’s cousin brother who takes care of him now.     

Hesitant to interact with the media, Jaiswal added, “The last time his story was reported, I was harassed by the authorities for speaking to the media. I am just helping them because it is unfair. Nobody should have to go through what this family went through.”

Parkash was arrested on October 15, 2000, for allegedly violating Sections 3 and 25 of the Arms Act, which lays down the punishment for possessing ammunition without a licence. As per the prosecution, Government Railway Police (GRP), Jammu, patrolling near flyover bridge at platform no 1 found him roaming around barefoot and recovered 34 live AK-47 bullets from him. The station house officer of GRP Jammu filed an FIR in this regard.

As he had told his name differently throughout the investigation, the investigation officer of the case noted in the challan that the accused seemed to be a lunatic and his medical check-up was needed for trial. After the probe, Parkash was sent to judicial custody. According to his lawyer Advocate Irfan Khan, he would have been sentenced to a minimum of three years to prison if proven guilty. 

For most part of his detention, the authorities did not even know his name. In the case file, he was described as a “person whose photograph has been placed on the file, his name is not known”.

On January 3, 2001, the investigation officer filed a chargesheet against him before the city judge, Jammu. While sending Parkash to judicial lockup after taking note of his mental condition, the court directed the superintendent of Amphalla jail to obtain a medical report on his condition from the chief medical officer of Jammu and submit it during the trial court hearing.  

As there was no one to furnish the Rs 30,000 surety bond to bail him out, he was confined to jail since then. Parkash was never taken for trial proceedings.

In the trial court hearing on May 10, 2001, the court directed the jail superintendent to present the accused before the head of psychiatry department of the Government Medical College of Jammu for his treatment and directed submission of his recovery report before the court. It said the file will be consigned to record till then.

About the phrase “consigned to record”, Advocate Sheikh Shakeel, a criminal lawyer in Jammu and Kashmir, said it meant that the proceedings were effectively put on hold without resolution. “It was a lapse on the part of the public defender, who failed to follow up on the case. The right to legal aid is enshrined in Article 39A of the Indian Constitution and it is meant to safeguard against such cases where a person cannot hire a lawyer or is not capable of deciding for themselves.” 

The recovery report was not submitted till the time Parkash was in jail. After his release, the report was submitted in the court, thus leading to the re-opening of the case. 

Parkash’s family remained clueless about his whereabouts until August 20, 2022, when Uttar Pradesh Police informed his cousin brother that a message had come from Jammu Police that he is lodged in Jammu jail. This, when his Aadhaar card was made on December 9, 2014, where the accurate name, address and parent’s name was told by Parkash himself. The card was sent to his home address by the Aadhaar department and was received by his father. 

On Parkash providing correct details, lawyer Advocate Irfan Khan says "his condition might have improved a bit from treatment or he became aware of who he was briefly."

Advocate Khan has filed a writ petition in the Jammu & Kashmir and Ladakh High Court (HC) on August 25, 2022, seeking dismissal of the case and a compensation of Rs 50 lakh for illegal detention. It said the police arrested the petitioner in a false and frivolous case. It said the district jail superintendent made no communication with the trial court, did not share medical reports and just provided food and shelter to the petitioner. 

While considering the petition last year, the HC observed a concerning lapse —the case file was “consigned to records” by the presiding magistrate, who failed to issue any subsequent directives or conduct the requisite inquiry into the matter. Despite the provisions for bail and the right to a speedy trial, Parkash’s case was marred by delays and a lack of legal aid.

Defining an unsound mind

The Code of Criminal Procedure, 1973, looks into the procedure for dealing with accused persons who are deemed to be of unsound mind during the trial process. “If the accused is found to be of unsound mind and incapable of making their defense, the court may postpone the proceedings until they are capable of understanding them. During this period, the court may release the accused on bail if sufficient security is provided for their care and to prevent them from causing harm. If the court deems it inappropriate to release the accused on bail, or if sufficient security is not provided, the magistrate has the authority to order the accused to be detained in safe custody.”

In this case, Parkash could have been released on bail, but there was nobody to pay the surety bond for him. 

Dr Rajinder Kumar, lecturer, Government Psychiatric Diseases Hospital, Jammu, said if a previous record of the patient was available, it is analysed to assess if the patient was aware of the nature of the act while committing the crime. “Lucid intervals refers to the moment of clarity or consciousness where a person is aware of the acts they are committing. A report of unsound mind presented before the court would mostly be in case of diagnosis of psychosis. Perhaps, schizophrenia or severe mental retardation.”

On the parameters to assess an “unsound mind”, Dr Kumar said the assessment was done through ward observation and psychological testing. The behaviour of the patient is observed in terms of their eating habits and interactions with others to make an observation chart.

“Psychological testing includes both objective and subjective tests. Objective tests include ‘yes’ or ‘no’ questions. The type of questions presented to the patient depends on the inference from the observation chart as to what kind of mental illness the patient may have. Subjective test includes showing pictures to the patient and recording their response. It allows them to express their thoughts and feelings. They are asked to write stories or draw an image. Based on the input, we make an assessment whether the patient is actually suffering from psychosis, another mental illness or merely pretending,” he detailed.

According to lawyer and policy analyst Noel Therattil, McNaughten test is a standard for assessing legal insanity in Indian law. “This principle is incorporated under Section 84 of the Indian Penal Code, which states that an act is not an offence if the person committing it, at the time of doing so, by reason of unsoundness of mind, is incapable of understanding the nature of the act, or that what they are doing is either wrong or contrary to law. The test has parameters for insanity, including defect of reason, lack of understanding and inability to distinguish right from wrong.”

“In case the patient is found to be of unsound mind, he would not be in a condition to undergo trial. Then the court would order us to treat the patient. The treatment depends on the diagnosis. Often, the patient is admitted to the psychiatric hospital, but the treatment can also continue while they are in jail. In that case, the jail authorities continue monitoring their behaviour and make observation charts. We do routine check-ups to see if there is any improvement in the patient's mental condition,” Dr Kumar explained.

Varnav Somwal, a lawyer and prison reforms expert, mentioned that every prisoner has to undergo a medical evaluation but not always a psychiatric evaluation. “An accused might plead that they were of “unsound mind” while committing the crime and the court would order a psychiatric assessment in that case to determine whether it is true. Or if a prisoner is exhibiting symptoms, the same information may be presented before the court by his lawyer or jail authorities.”

Adv Shakeel said there are provisions that allow the court to free a mentally unstable undertrial. “Unlike in normal cases where a man can exit the jail on getting bail, in these cases, a relative or a family member of the undertrial has to come and sign a bond,” added Shakeel.

A 38-year-old jail superintendent from Jammu and Kashmir with a keen interest in prison reforms opined that if a medical board declares someone mentally unsound, he/she can be exonerated. “When it comes to heinous crimes, the matter becomes tricky. There was one person who evidently had an “unsound mind”, but was accused of murdering three people. I brought this knowledge to the court authorities. However, the judge observed that if acute psychosis was found in the assessment of the accused, they might not have to serve their sentence and as such could be just shifted to another jail.”

He claimed that mental illnesses were quite common in prisons. “Nearly 30 to 40% of patients suffer from some sort of illness; depression and anxiety are quite common. But it depends on the resources that a prison has to whether or not bring psychologists to the prisons and offer counselling.”

This story was originally published as a part of Crime and Punishment project in collaboration with Vidhi Centre for Legal Policy.

Cover photo - Representative image/ AI-generated using Canva