MADHAVAN NAIR v. STATE OF KERALA — 1977 DIGILAW 229 (KER)

Judgment :- 1. This is a reference made by the Sessions Judge, Palghat, under S.395 (2) of the Code of Criminal Procedure, for quashing the order of committal of the accused in P. E. Case No. 1/77 passed by the Judicial Magistrate of First Class, Pattambi. The question referred for consideration relates to the interpretation of S.208, 209 and 328 of the Code of Criminal Procedure and is whether an accused person, a lunatic who is incapable of defending himself, can be straigh-away committed to the Court of Session for trial. 2. I shall now state a few facts necessary for the disposal of the case. In connection with the murder of his step-mother by cutting her with a chopper at about 12 noon on February 27,1977, Velayudhan, the accused, was arrested and taken into custody and on the next day he was produced before the Magistrate and was remanded to the Sub Jail, Ottappalam. In the meanwhile the Superintendent of the Sub Jail, informed the court that the Jail doctors, on examining the accused, found that he was mentally ill Thereafter he was sent to the Superintendent, Mental Hospital, Calicut with a "reception order" and the doctor, after examination, issued a certificate stating that the accused is suffering from SCHIZOPHRENIA. A charge sheet was laid before the Magistrate, Pattambi, on completion of investigation by the Detective Inspector, on 23-4-1977. The Magistrate posted the case to 3-5-1977 asking the police to bring copies of all documents. Thereafter a warrant was issued to the Mental Hospital, Calicut, to produce the accused before the Magistrate on 13-5-1977. On this date, when the accused was produced, the learned Magistrate without furnishing his copies which were supplied by the police committed him to the Court of Session on the ground that, the accused was incapable of understanding anything that was happening in court, S.209 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the New Code) does not require of him to hold an inquiry and that the offence disclosed was one exclusively triable by the Court of Session. There is a direction by the Magistrate that "during and until the conclusion of the trial, the accused will be in the Mental Hospital, Calicut." 3. There is a direction by the Magistrate that "during and until the conclusion of the trial, the accused will be in the Mental Hospital, Calicut." 3. As the accused was incapable of defending himself, the Magistrate should have, after conducting the necessary inquiry in this respect, postponed the proceedings under S.328 of the New Code. Preliminary inquiry under Chapter XVIII of the Code of Criminal Procedure, 1898 (hereinafter referred to as the Old Code) has been dispensed with in the New Code. Chapter XVIII of the Old Code consisting of S.206 to 220 deal with inquiry in cases triable by Court of Session or the High Court (both cases instituted on private complaints and police reports). The procedure relating to commitment of cases to Court of Session is provided for under S.209 of the New Code which appears in Chanter XVI. Ss.206 to 210 of the New Code contain new provisions. It is true that preliminary inquiry as contemplated under S.207A and 208 of the Old Code has been dispensed with under S.209 of the New Code. That does not mean what the Magistrate has been enjoined to do is only a sheer mechanical process of committing the case to the Court or Session if the offence is one exclusively triable by the Court of Session. The order of commitment is a judicial order and before passing such an order the Magistrate has certain preliminary functions to perform, some of which are also judicial in nature. Before acting under S.209 of the New Code the Magistrate has to satisfy himself whether requirements under Ss 207 and 208 of the New Code have been properly and satisfactorily complied with. A preliminary inquiry into a case exclusively triable by a Court of Session, under the Old Code, involved recording of evidence also. It was mainly because that a preliminary inquiry under the Old Code involved a great deal of infructuous work causing delay in the trial of serious cases that the preliminary inquiry as contemplated under the Old Code was dispensed with in the New Code. This cannot be understood to mean that the Magistrate is an automation or that he has been reduced to the position of a mere post office. This cannot be understood to mean that the Magistrate is an automation or that he has been reduced to the position of a mere post office. Under S 207 of the New Code which applies to the case instituted on police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of (i) the police report; (ii) the first information report recorded under S.154; (iii) the statements recorded under sub-section (3) of S.161 of the prosecution witnesses; (iv) the confessions and statements, if any, recorded under S.164 and (v) any other document referred to in the section. Similarly, under S.208 of the New Code when the case is one instituted otherwise than on a police report, where it appears to the Magistrate that the offence is triable exclusively by the Court of Session, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the statements and documents referred to in clauses (i) to (iii) of the said section. It may be noted that in a case coming under S.207, the Magistrate has to see that such portion of the statements recorded under sub-section (3) of S.161 in regard to which a request for exclusion has been made by the police officer is excluded and under the proviso to S.207 the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused. So also under the provisos to S.207 and 208, if the Magistrate is satisfied that any document referred to in clause (v) of S.207 and clause (iii) of S.208 is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in court. These are some of the preliminary functions which are judicial in nature which the Magistrate has to perform before an accused is committed to the Court of Session. These are functions in the nature of an inquiry in the wider sense. What is really dispensed with was the preliminary inquiry under the Old Code which included examination of witnesses and recording of evidence. These are functions in the nature of an inquiry in the wider sense. What is really dispensed with was the preliminary inquiry under the Old Code which included examination of witnesses and recording of evidence. It is not always necessary that in every inquiry there should be examination of witnesses and recording of evidence It was on the ground that S.209 of the New Code does not require of the Magistrate to hold an inquiry and relying on a decision reported in Lakshmi Brahman v. State (19 6 Crl. L. J. 118) that the Magistrate, without acting under S.328 and other relevant provisions in Chapter XXV of the New Code, committed the accused knowing fully well that he is a lunatic, to the Court of Session. The question that came up for consideration in the decision referred to above was whether, after a charge-sheet has been filed on conclusion of the investigation before the Magistrate in a case exclusively triable by the Court of Session, while adjourning the case before making an order of committal, the Magistrate has got power to remand the accused to custody under S.209 of the Code. While interpreting the definition of 'inquiry' under S.2(g) of the Code, the Division Bench observed that "inquiry" is the name given to a proceeding conducted under the Code by a Magistrate or a Court, other than a trial, for ascertaining or verifying tacts with a view to take some action under the Code. Under S.2(g) "inquiry" means "every enquiry, other than a trial, conducted under this Code by a Magistrate or Court". The word "trial" has not been denned under the Code. Every proceeding preceding a trial is an inquiry. As pointed out earlier, S.209 does not contemplate passing of an order of committal in a mechanical or in an arbitrary way. Before furnishing the accused with copies of all documents referred to in Ss 207 and 208, the Magistrate has to exercise his discretion and decide whether any particular portion of the statements recorded under S.161(3) of the witnesses has to be excluded and whether copies of documents which are voluminous are to be furnished to the accused or whether it is a case where the accused will only be allowed to inspect it either personally or through pleader in court. S.209 reads: "209. S.209 reads: "209. When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence it triable exclusively by the Court of Session, he shall (a) commit the case to the Court of Session; (b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial; (c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Session." It is therefore clear that the Magistrate has to look into the relevant statements and documents produced in support of the prosecution case against the accused and then, if it appears to him that the offence is triable exclusively by the Court of Session, be shall commit the case to the Court of Session. AH these indicate that although a preliminary inquiry as contemplated under the Old Code has been dispensed with, some inquiry of the nature referred to above has to be done by the Magistrate before he commits the case to the Court of Session. In this context the preliminary functions which have to be performed before an accused is committed are proceedings taken by the Magistrate under the Code for ascertaining or verifying certain facts which are necessary with a view to take action under the Code, even though for a limited purpose. The question whether proceedings taken under S.209 by a Magistrate would fall within the ambit of the term'inquiry' as defined under S.2 (g) of the Code came up for consideration before a Division Bench of the Rajasthan High Court in Swaroop Singh v. State of Rajasthan (1976 Crl. L. J. 1655). The definition of 'inquiry' is comprehensive enough to cover the proceedings taken by the Magistrate under S, 209 of the Code. L. J. 1655). The definition of 'inquiry' is comprehensive enough to cover the proceedings taken by the Magistrate under S, 209 of the Code. In order to reach a conclusion whether the case before him was exclusively triable by a Court of Session or not the Magistrate need not embark upon the examination of witnesses or recording of evidence or hear the accused, but be is bound to scrutinise all the relevant papers produced before him and it is only after that that he can arrive at a conclusion whether the case was one exclusively triable by a Court of Session or not. It was held by the Division Bench in the above case that "S. 209 enjoins a duty on a Magistrate before the accused is committed to the Court of Session that be must satisfy himself whether the case was exclusively triable by the Sessions Court. It is true that inorder to satisfy himself the Magistrate has not to record any evidence or to hear the accused but he is to study the papers that have been placed before the Magistrate by the police and in that process of study the Magistrate may take time and may be required to adjourn the case of future date. That.process of study which makes the Magistrate appear that the case to triable exclusively by the Court of Session, in our opinion, does fall within the expression 'inquiry' as defined in S.2 (g) of the Code of Criminal Procedure." I am in respectful agreement with this view. Valuable rights have been conferred on the accused under S.207 and 20 of the Code and as stated earlier, he is entitled to free copies of statements and documents referred to therein and the Magistrate is bound, without delay to furnish such statements and documents to the accused. If the person accused of an offence is a lunatic incapable of defending himself and understanding what is happening in the court, how it is possible for the Magistrate to comply with the requirements of the salient provisions in S.207 and 208. Before action under S.209 is taken against an accused, he is entitled to get copies of statements and documents which give him notice of the case which he has to meet. While passing an order under S.209, the accused must know that he was being committed to the Court of Session. Before action under S.209 is taken against an accused, he is entitled to get copies of statements and documents which give him notice of the case which he has to meet. While passing an order under S.209, the accused must know that he was being committed to the Court of Session. But all these requirements can be complied with only in the case of a person of sound mind and not of unsound mind. An enquiry or trial of an accused person who is of unsound mind and consequently incapable of making his defence in the opinion of the Magistrate or the court, as the case may be. can be commenced or resumed or proceeded with only when the person concerned has ceased to be of unsound mind. While committing an accused under S.209, the Magistrate has been given power to remand the accused to custody during and until the conclusion of the trial. This clearly indicates that what is contemplated under S.209 is the committal of an accused who is of sound mind and capable of defending himself. The committal of a lunatic, in the circumstances, is clearly illegal. The learned Magistrate having found that the accused was a lunatic should have proceeded under S 328(3) of the Code and the other relevant provisions and if he was of the opinion that the accused was of unsound mind and consequently incapable of making his defence, he should have postponed further proceeding in the case after recording a finding to that effect. In any view, the order of committal is illegal. The Reference is therefore accepted and the order of committal is quashed. The learned Sessions Judge will send back the records to the concerned Magistrate for necessary action according to law and in the light of this order.