KUNJUNARAYANAN SIVARAMAN v. STATE OF KERALA — 1971 DIGILAW 166 (KER)

Judgment :- 1. The question that falls to be decided at this stage of the appeal is whether the procedure prescribed in Chapter XXXIV Cr. P.C. during enquiry or trial in the court of the first instance has to be followed in appeal in respect of an accused person who is reported to be of unsound mind. 2. This question comes up for consideration in this appeal against the conviction and sentence of life imprisonment under S.302 IPC. for causing the death of one George alias Chori by the appellant stabbing him with M.O.1 pair of scissors on his abdomen at about 3.30 PM. on 2 4 67. 3. The appellant and Chori lived in adjacent houses and the appellant suspected that Chori was in illegal intimacy with his wife. So, he got into the but where Chori was lying on a mat with M.O.1 in his band on the afternoon of 2 4 67 and made the fatal attack on him, as a result of which he succumbed to the injury before he was taken to the hospital. Immediately after the incident, pws.1 to 4 saw the appellant coming out of the but of Chori with M.O.1 in his hand and then pws. 5, 9 and 10 overpowered him by wresting M.O.1 scissors from his hand. After investigation and preliminary enquiry, the case was committed to the Sessions. 4. On behalf of the appellant, it was contended, inter alia, before the Sessions Judge, Alleppy, that at the time of the incident by reason of unsoundness of mind the appellant was incapable of knowing the nature of the act which be committed and that therefore be was not guilty of any offence. However, the Sessions judge proceeded with the trial of the case by examining all the prosecution witnesses. But, at the end of the examination of these witnesses, the learned Sessions Judge felt that the appellant should be sent for medical examination to ascertain whether he was of unsound mind or not. Accordingly, the appellant was sent to the Mental Hospital, Trivandrum, for examination and report. He was found to be suffering from insanity. He was then treated there. After he was cured of the illness the Board of Examiners conducted an examination of the appellant on 28 169 and they certified that be was fit to stand the trial. Accordingly, the appellant was sent to the Mental Hospital, Trivandrum, for examination and report. He was found to be suffering from insanity. He was then treated there. After he was cured of the illness the Board of Examiners conducted an examination of the appellant on 28 169 and they certified that be was fit to stand the trial. So, a de novo trial was conducted and one Dr. K. B. Jacob, who issued Ex. D1 certificate on examination of the appellant, had also given evidence at the trial. On conclusion of the trial, the learned Sessions Judge found that the appellant's plea under S.84 IPC. that he was of unsound mind and was incapable of knowing what he did could not be sustained. Accordingly, the Sessions Judge entered on the conviction and sentence on 3 4 69. 5. The appeal memo submitted by the appellant through the Superintendent, Central Prison, Trivandrum, was received in this court on 24 6 69. The Division Bench which consisted of one of us admitted the appeal on 10 7 69 and ordered notice to the appellant as well as to the State. The State appeared through the Public Prosecutor and on behalf of the appellant the counsel appointed at State cost also appeared on 30 9 69 when the appeal came up for hearing for the first time. It was reported that the notice under S.422 Cr. P.C. could not be served on the appellant as he was not in a fit mental condition. So, the appeal was adjourned and thereafter the appeal was being adjourned from time to time on the basis of a report from the Superintendent, Mental Hospital, Trivandrum, where the appellant is now undergoing treatment that the appellant's mental condition was not normal and that he was not fit to stand the trial. 6. It is, therefore, necessary to consider whether the provisions of Chapter XXXIV Cr. P.C. which deal with enquiry and trial in the court of first instance are applicable to appeals also. This Chapter deals with accused, who are lunatics. S.84 IPC. deals with an accused, who is a lunatic at the time of the commission of the offence. If an accused is a lunatic at the time of the trial and therefore is incapable of making his defence, the trying Magistrate under S.464 Cr. PC. and the Court of Sessions under S.465 Cr PC. S.84 IPC. deals with an accused, who is a lunatic at the time of the commission of the offence. If an accused is a lunatic at the time of the trial and therefore is incapable of making his defence, the trying Magistrate under S.464 Cr. PC. and the Court of Sessions under S.465 Cr PC. shall ascertain on evidence if the accused is lunatic. If he is so found, then the Magistrate or court, even if the case is not bailable, may release him on assurance being given that he will be cared for. If such an assurance is not forthcoming, or if he cannot be enlarged on bail, he is detained in safe custody as required by Sec 466 Cr. PC. The Magistrate or the court say resume enquiry or trial against the accused at any time (Sec. 467). If the accused is still insane, he can again be dealt with under S.466 or S.468, as the case may be If, however, the accused appears to be of sound mind at the enquiry or trial, but was a lunatic when he committed the offence, the enquiry or trial must be completed under S.469 Cr. PC. If he is found to have committed the act a finding is recorded accordingly, but the accused is acquitted (see S.470). In that event, he is detained in safe custody and his case is reported to the State Government under S.471 (1) Cr. PC. If a person detained under S.466 is found to be capable of making his defence, he is tried as provided in S.468 or S.473. A person detained under S.466 or S.471 may, when there is no danger of his doing injury to himself or to others, be either discharged under S.474 or made over to the care of a relation or friend as under S.475 Cr. PC. 7. If an accused person is found to be of unsound mind, it is natural to think that he would be incapable of giving any instructions to his counsel. The Magistrate or the court holding an enquiry or trial should enquire into the fact of unsoundness of mind of the accused, when he has reason to believe that the accused is of unsound mind and, consequently, incapable of making his defence. The Magistrate or the court holding an enquiry or trial should enquire into the fact of unsoundness of mind of the accused, when he has reason to believe that the accused is of unsound mind and, consequently, incapable of making his defence. It is with the condition of the mind of the accused at the time of the enquiry or trial that the Magistrate is concerned. In other words, the Magistrate is not, at that stage concerned with the condition of the mind of the accused at the time of the alleged commission of the offence. An accused person, who is insane, whether he is defended or not, is naturally thrown at the mercy of the Court whose duty it is then to offer him all reasonable assistance. The first thing and perhaps the most important thing is to place the prisoner suspected of insanity under medical observation promptly so that when the case comes up for trial, there should be reliable medical evidence of the state of mind of the accused immediately after the incident. Why then should the court's power of postponement of the trial of a person of unsound mind who is incapable of making his defence be confined to enquiry or trial and why should it not be extended to the hearing of appeal? The question whether the appeal has to be postponed, if the accused is found to be of unsound mind, came up for consideration in a decision reported in Sundaram v. The State (AIR. 1960 Calcutta 395). The answer to the question is seen at page 396. It reads as follows: "It is to be observed that the appeal as well as the reference involves the determination of questions of fact and the instructions which the appellant may give to his lawyer as to the hearing of the appeal and the reference may well prove to be vital. Even if the appeal were from a jury trial, the appellant's lawyer would still need to be instructed and the result of such instructions might well be vital to the appellant's case. Even if the appeal were from a jury trial, the appellant's lawyer would still need to be instructed and the result of such instructions might well be vital to the appellant's case. By reason of his unsoundness of mind and the consequent inability on his part to instruct his lawyer in the conduct of his appeal and in dealing with the reference, the Court is bound to afford him the same protection to which he would have been entitled, had he been of unsound mind at the time of the trial in the court below. The appeal and the reference cannot be disposed of without giving the appellant a hearing, but how can he make himself heard, either in person or through a lawyer, if he is of unsound mind? In our view, we have inherent power, ex debito justitiae, to postpone the hearing of the appeal and the reference until such time as the appellant should be found to be of sound mind again and thus capable of making his defence." 8. We are in respectful agreement with the above view and hold that the provisions of Chapter XXXIV Cr. P. C. in pari passu will apply to the appeals. 9. There is yet another hurdle in the way of the proceeding with the appeal. A notice under S.422 Cr. P. C. to the appellant in this appeal is absolutely necessary. S.422 reads as follows: "If the Appellate Court does not dismiss the appeal summarily, it shall cause notice to be given to the appellant or his pleader, and to such officer as the State Government may appoint in this behalf, of the time and place at which such appeal will be heard, and shall, on the application of such officer, furnish him with a copy of the grounds of appeal; and, in cases of appeals under S-411 A. sub section (2), or S.417, the Appellate Court shall cause a like notice to be given to the accused." This provision is obligatory. The fact that the counsel of the accused is present in court when an order is made admitting the appeal does not relieve the court from the necessity of giving notice to the appellant of the day fixed for hearing the appeal. In this regard, the provisions of R.154 of the Travancore-Cochin Criminal Rules of Practice may be seen. The fact that the counsel of the accused is present in court when an order is made admitting the appeal does not relieve the court from the necessity of giving notice to the appellant of the day fixed for hearing the appeal. In this regard, the provisions of R.154 of the Travancore-Cochin Criminal Rules of Practice may be seen. It reads that when the court means to proceed under S.422 Cr. P. C., the law requires that notice shall be issued to the appellant and the intimation given by the officer of the jail when forwarding the appeal petition is not sufficient for this purpose. These provisions indicate that notice to the appellant is a condition precedent for hearing the appeal. In this connection, reference may be made to a decision reported in Emperor v. Lal. Bahadur, (AIR (15) 1928 All. 84), which was followed in Nathu Ram V. Godse v. The Crown, (AIR. (36) 1949 East Punjab 321), which held that where the stage has been reached of an appellant being given notice under S.422, Criminal P. C., he is entitled, if he so desires, to appear in person, if he is not represented by a pleader. It is clear that the counsel, who is employed by the court to give legal assistance to the appellant at the hearing of his appeal, is not "his pleader" within the meaning of S.423 Cr. P. C. If it is so advised, the appellant would be entitled to appoint his own counsel. It is also relevant to point out that the appellant, who is in jail and has presented his appeal through the officer in charge of the jail in which he is confined, is entitled, if he so desires, to appear in person at the hearing of his appeal if he has not chosen to appoint his own pleader, Whether an appellant after notice under S.422 Cr. P. C. has the right to be heard in person came up for consideration in a Full Bench decision reported in Queen-Empress v. Pohpi, (13, All. 171 (1891 Allahabad Weekly Notes 48 F. B.). On considering the whole matter, Lindsay, Boys and Iqbal Ahmad JJ., stated as follows: "We have considered the decision of the Full Bench of this Court in Queen-Empress v. Pohpi, (13 All. 171 (1891 Allahabad Weekly Notes 48 F. B.). On considering the whole matter, Lindsay, Boys and Iqbal Ahmad JJ., stated as follows: "We have considered the decision of the Full Bench of this Court in Queen-Empress v. Pohpi, (13 All. 171:1891 A. W. N 48 F. B.) and we are unable to agree with the reasoning in that case, and are of opinion that the decision went too far when it held that an appellant from jail has no fight to appear at the hearing of his appeal, if he desires to do so and has no pleader to represent him. Similarly, we find ourselves unable to agree with the learned judges in case of Ram Parshad v. Emperor, AIR. (14) 1927 Oudh 312: (28 Cr. L. J 679) where they say: "As he appealed from jail he was not entitled to appear in person to argue his appeal." We hold that where the stage has been reached of an appellant being given notice under S.422. Criminal P.C., he is entitled, if he so desires, to appear in person, if he is not represented by a pleader." 10. In Emperor v. Jalam Bharat Singh, (ILR. (1938) Bombay 357), Beaumont C. J. said: "I think that the obligation imposed on the Court under S.422 of giving notice to the appellant, if he has no pleader, involves that the appellant must have a right to act upon the notice and come to the Court to argue his appeal if he so desires." Beaumont C. J. disposing of the case added: "I would add that it has been held by the Full Bench of the High Court of Allahabad; Emperor v. Lal Bahadur, (50 All. 543: AIR. (15) 1928 All. 84:29 Cr. L. J. 334 F. B.) that where a notice is issued under S.422, the appellant is entitled, if be so desires, to appear on the hearing of the appeal either by himself or by the pleader. I agree with that ruling 11. The opinion expressed in these cases is entitled to very great weight. The position is, therefore, clear that under S.422 Cr. I agree with that ruling 11. The opinion expressed in these cases is entitled to very great weight. The position is, therefore, clear that under S.422 Cr. P.C. notice has to be given to the appellant as to the place and time at which his appeal will be heard and on receipt of the notice, if the appellant expresses his desire to appear in person at the hearing of the appeal, we should think that to refuse to make arrangements for his appearance would be denial to his of the right which is a logical consequence of his right to have notice. It that be so, in this ease the appeal cannot be proceeded with without serving the notice as required by S.422 to the appellant, who, for the present, is not in a fit state of mind to accept such notice. The hearing of the appeal has, therefore, to be postponed. 12. In the result, we would postpone the hearing of the appeal until such time as the appellant should be found and reported to this court to be of sound mind again and direct that in the meantime he be detained in safe custody the manner and place of detention being left to the decision of the State Government. Until further orders, the State Government will cause to be sent to this court a medical report as to the mental condition of the appellant every two months. Narayana Pillai J. 1A. 464 & 465 of the Criminal Procedure Code provide that in inquiries and trials when an accused appears to be of unsound mind and consequently incapable of making his defence the fact of such unsoundness and incapacity has to be tried as a preliminary issue and if the Magistrate or judge is satisfied of that fact further proceedings have to be postponed. But those sections as such are inapplicable to appeals. The same reasons for postponement of further proceedings in inquiries and trials apply with equal force to appeals also in the case of a lunatic. For example he has a right to receive notice under S.422 of the Code of the time and place of the hearing of the appeal and to be heard in person or through a lawyer of his choice before the appeal is disposed of. He can effectively make use of those rights only if he is of sound mind. For example he has a right to receive notice under S.422 of the Code of the time and place of the hearing of the appeal and to be heard in person or through a lawyer of his choice before the appeal is disposed of. He can effectively make use of those rights only if he is of sound mind. Therefore the interests of justice require that the hearing of the appeal should be postponed until such time as he should be found to be of sound mind again. The appellate court is not helpless in these matters simply because S.464 and 465 as such apply only to inquiries and trials. Under S.423(1)(d) an appellate court is empowered to make any incidental order that may be just or proper. Acting under it the appellate court can postpone further proceedings if it is satisfied of the fact that the appellant is of unsound mind and incapable of making his defence. I agree that the hearing of the appeal be postponed till the appellant be found and reported to be of sound mind again as directed in the judgment of my learned brother.