State v. Ram Jatan — 1968 DIGILAW 462 (ALL)

JUDGMENT K.N. Srivastava, J. - These are two cases which have been referred to this Court under Section 341 of the Cr.P.C. Misc. Case No. 3910 of 1968 was referred by the Sessions Judge, Mirzapur and Misc. Criminal Case No. 3911 of 1968 was referred by a Magistrate 1st Class, Deoria. 2. In Criminal Case No. 3910 of 1968 Ram Jatan is said to be the deaf and dumb. He along with his father Jairam is said to have committed offences under Sections 363, 366 and 368 of the I.P.C. The report of the occurrence was lodged at the Thana by Shitala Prasad, the father of the kidnapped girl. The occurrence is alleged to have taken place on May 21, 1967. The report was lodged at the Thana on May 31, 1967. On the basis of his report the police registered a case against Jairam and Ram Jatan under the aforesaid sections and started investigation. After completing the investigation Jairam and Ram Jatan were challaned. The Committing Magistrate after holding enquiry under chapter XVIII of the Cr.P.C. committed Ram Jatan and Jairam to stand their trial in the court of Sessions under Section 366 of the I.P.C. As Ram Jatan was deaf and dumb the learned Sessions Judge made a reference to this Court under Section 341 of the Cr.P.C. 3. In Criminal Misc. Case No. 3911 of 1968 Bauk alias Mukut and one Ram Bachan are alleged to have committed theft of the paddy crop standing in the field of Bans Bahadur. The occurrence is alleged to have taken place at 9 p.m. on September 18, 1966. Bans Bahadur lodged the report of the occurrence at the Thana the same night at 0.55 hours. On the basis of this report the police registered a case against Bauk and Ram Bachan under Section 379 of the I.P.C. After completing the investigation the police challaned both of them. The learned Magistrate convicted both Ram Bachan and Bauk. Ram Bachan was sentenced to imprisonment. As Bauk is alleged to be a deaf and dumb person, therefore, the learned Magistrate has made this reference to this Court under Section 341 of the Cr.P.C. 4. The learned Magistrate convicted both Ram Bachan and Bauk. Ram Bachan was sentenced to imprisonment. As Bauk is alleged to be a deaf and dumb person, therefore, the learned Magistrate has made this reference to this Court under Section 341 of the Cr.P.C. 4. It has been noticed that the lower courts make references in cases of deaf and dumb persons without correctly appreciating the import of Section 341 of the Cr.P.C. It is, therefore, necessary to lay down the conditions under which Section 341 of the Cr.P.C. applies. Simply because a man is deaf and dumb by birth or otherwise Section 341 of the Cr.P.C. would not apply. To make this section applicable to a case it must be shown that the accused could not be made to understand the proceedings of the case. It is, therefore, the duty of the court making the reference to find out from their relations, friends and associates, so as to ascertain from them, as to what was the method of communication with that particular deaf and dumb person. Want of speech or hearing does not invariably imply that the person concerned has no capacity to understand without an effort being made to have a communication with deaf and dumb person by signs and other modes by which his relations and friends have communications with him. Only when all efforts of communications with deaf and dumb person fails then and then alone the provisions of Section 341 of the Cr.P.C. apply. It was held in Ulfat Singh v. Emperor, 1947 AWR 99 that if the deaf and dumb person is charged with serious offence the Magistrate or the Judge should record a finding that the accused inspite of all efforts could not be made to understand the proceedings of the case and then a reference should be made under Section 341 of the Cr.P.C. In lesser offences, the trial courts should make a serious effort to know the process, habits and the mode of communication with the accused and should call relations and friends who are capable of correctly communicating the proceedings of the case to the accused and to try the accused with their help. 5. The law does not exempt a deaf and dumb person from being punished. 5. The law does not exempt a deaf and dumb person from being punished. In my opinion, the real purport of enacting the provisions of Section 341 of the Cr.P.C. is to ensure the High Court that the trial was conducted with proper care and caution and that the accused was made to understand the proceedings of the case. It is with this end in view that the trial courts are required to refer the matter to the High Court under Section 341 of the Cr.P.C. and to seek its advice. In case where the accused is convicted of an offence the purpose of making the reference under Section 341 is to assure the High Court that the trial has been fairly conducted with due care and caution and that as to what should be the proper and adequate sentence to be awarded to the accused under the circumstances of the case. 6. This question has come for discussion before different High Courts. I have already cited the case of Ulfat Singh v. Emperor 1947 A.W.R. 99 which was decided by this Court. Although the point which is directly in issue in these cases was not the subject matter of discussion in Ulfat Singh's case (1). 7. In State v. Radhamal Sangatmal Sindhi, A.I.R. 1960 Bom. 526 this question came for discussion. In that case a number of cases of different High Courts including Ulfat Singh's case was discussed by the Division Bench. Gokhale, J., who spoke for the Bench observed: "These decisions would indicate that ( when it is alleged in any criminal proceedings that an accused is deaf and dumb, the Court may proceed with the antecedents of the accused and should also make an endeavour to find out as to how his friends and close relatives are accustomed to communicate with him in ordinary affairs and record its own conclusions, if necessary by taking evidence." In re Oomayan, 1960 AWR (Suppl.) 13 (1) : A.I.R. 1960 Mad. 20 it was held as below: "But in this case the Magistrate himself finds that the accused understood the proceedings. I am unable to see how this reference lies to this Court. The reference is therefore returned." 8. 20 it was held as below: "But in this case the Magistrate himself finds that the accused understood the proceedings. I am unable to see how this reference lies to this Court. The reference is therefore returned." 8. The crux of the case, therefore, is that the Enquiring Court or the trial court must come to a definite finding that inspite of all endeavours and efforts the accused was not able to understand the proceedings of the case and unless there was a clear and categorical finding to this effect Section 341 of the Cr.P.C. did not come into play. In Bauk's case the learned Magistrate recorded the following order: "As regards the accused Bauk alias Mukut he is a dumb, mute and he cannot be made to understand proceedings. Since the case has resulted in conviction, let the proceedings be submitted to the Hon'ble High Court for favour of passing such order as it thinks fit." This judgment was delivered by Shri R.S. Verma, Judicial Magistrate, 1st Class. Earlier this case was on the file of Shri M.M.K. Saxena, Judicial Magistrate. He framed the following charge against Bauk:. I, M.M.K. Saxena, Judicial Magistrate, Padrauna at Kasia, district Deoria hereby charge you, Bauk, as follows: That you, on September 18, 1966, at about 9 p.m. at village Sabya in the circle of the police station Kasia of this district committed theft of paddy crop valued at Rs. 50/- from the field of Bans Bahadur, and thereby committed an offence punishable under Section 379 of the I.P.C., and within my cognizance. And I hereby direct that you be tried on the said charge. Sd. M.M.K. Saxena, April 17, 67 J.M." 9. The charge was read over and explained in Hindi to the accused who pleaded not guilty. There is a thumb impression at the foot of this paper which does not show as to whose thumb impression it is. However, a plain reaffirm of this charge leaves no room for doubt that a charge was framed against Bauk and it was explained to him in Hindi. Besides this there is nothing on the record to show that the learned Magistrate made any attempt or endeavour to find out whether Bauk accused could understand the proceedings of the case by one or the other mode. Besides this there is nothing on the record to show that the learned Magistrate made any attempt or endeavour to find out whether Bauk accused could understand the proceedings of the case by one or the other mode. The Magistrate should have made this reference after being satisfied that inspite of all efforts made in that behalf Bauk was not able to understand the proceedings of the case. In view of this the reference under Section 341 of the Cr.P.C. made by the Magistrate is not competent. 10. In the other case there are stronger grounds for returning the reference. In the case of Ram Jatan the charge framed by the Magistrate reads as follows: "I, Mahendra Pal, Magistrate 1st Class, Mirzapur, hereby charge you Jai Ram and Ram Jatan as follows: That you, on May 21, 1967 at about 4.5 p.m. in the day in village Bharetha, P. S. Chunar, District Mirapur in furtherance of common intention, abducted a woman, to wit, Km. Lalmani, from the lawful guardianship of Shitla Prasad with intent that she may be compelled or knowing it to be likely that she will be compelled to marry against her will, and thereby committed an offence punishable under Section 366/34 of the I.P.C. and, within the cognizance of the court of Sessions. And I hereby direct that you be tried by the court of Session on the said charge. Sd. Mahendra Pal August 10, 1968 J.M. Chunar District Mirzapur. Charge read over and explained to the accused Jai Ram with whose assistance by signs the contents were explained to Ram Jatan also who nodded meaning that he understood. Sd. Mahendra Pal, August 10, 1968 J.M. Chunar District Mirzapur." 11. The learned Magistrate recorded the statement of Ram Jatan accused. Ram Jatan accused replied to all questions by signs. The learned Magistrate noted down the signs which Ram Jatan made in reply to the questions and the interpretation given by his father to each of the signs. This clearly indicates and leaves no room for doubt that Ram Jatan accused properly understood the proceedings of the case. It appears that Shri P.N. Goel, the learned Sessions Judge without looking into these documents made the Reference possibly under the impression that if the accused was a deaf and dumb person the provisions of Section 341 of the Cr.P.C. apply. It appears that Shri P.N. Goel, the learned Sessions Judge without looking into these documents made the Reference possibly under the impression that if the accused was a deaf and dumb person the provisions of Section 341 of the Cr.P.C. apply. I have already given my reason for holding that the provisions of Section 341 of the Cr.P.C. apply only in those cases where inspite of all efforts the accused is not able to understand the proceedings of the case. The reference made by Shri P.N. Goel, Sessions Judge, Mirzapur, too is hereby returned. He should now proceed with the trial. The reference made by Shri B.S. Verma, Judicial Magistrate, 1st Class, Padrauna at Kasia district Deoria is also returned with the remark that he should make endeavours to find out if the accused is capable of understanding the proceedings of the case. In case the answer is in the negative he should make the reference again. In case the answer is in the affirmative the learned Magistrate should try Bauk accused in accordance with law.