State of Kerala v. Peter — 1980 DIGILAW 305 (KER)

ORDER P. Janaki Amma, J. 1. This reference arises in respect of the committal of the accused in Sessions Case No. 57 of 1980, on the file of the Court of Sessions, Ernakulam. The accused in that case is stated to have caused the death of his mother, Rossa aged 50, on 29-6-1980 by hitting her with a stone. He was arrested on 3-7-1980 and remanded to custody by the Judicial Magistrate of the Second Class, Muvattupuzha. On 11-8-1980 a petition was filed on behalf of the accused with a prayer that he be referred to the Mental Hospital for a certificate regarding his mental condition. Mention was also made in the petition that the accused had spells of insanity on previous occasions. Along with the petition certificates issued by three institutions wherein the accused was subjected to treatment for psychosis were also produced. In pursuance of the petition the Magistrate sent the accused for observation and treatment till 22-8-1980 in the Mental Hospital, Trichur. The remand period of the accused was extended till 22-8-1980. On 21-8-1980 a provisional certificate was issued by the Psychiatrist attached to the Mental Hospital, Trichur, that the accused was an inpatient of the hospital from 12-8-1980 and that he was suffering from psychosis (schizophrenia), a mental disease. The certificate also recommended hospitalisation for treatment. In another letter addressed to the Magistrate, the Superintendent. Mental Hospital, stated that the accused was being sent for production in Court, that the certificate enclosed was a provisional one and that for a final opinion the patient should be under observation for ten days more. The certificate appears to have been received on 22-8-1980; but there is no date seal of the Court. The letter bears the date seal of the Court as on 27-8-1980. A charge sheet was filed against the accused on 22-8-1980. Since the case is exclusively triable by the Court of Session it was posted to 29-8-1980 for appropriate orders. The accused, who was produced on 22-8-1980, was remanded till 29-8-1980, with the remark that the accused appeared to be sane. It would appear that the certificate issued by the Mental Hospital on 21-8-1980 was not brought to the notice of the Magistrate because there is an endorsement in the letter that the certificate had not been received. It is not known whether the covering letter was shown to the Magistrate. It would appear that the certificate issued by the Mental Hospital on 21-8-1980 was not brought to the notice of the Magistrate because there is an endorsement in the letter that the certificate had not been received. It is not known whether the covering letter was shown to the Magistrate. On 29-8-1980 the accused was committed to the Court of Session, Ernakulam, under S.209(a) of the Code of Criminal Procedure. 2. On receipt of the committal order and on a perusal of the records the Second Additional Sessions Judge, Ernakulam, felt that the committal was illegal as there were materials available in the case itself suggesting that the accused was suffering from some mental disease. The judge noted that mention is made of the insanity of the accused in the wound certificate in respect of the deceased. The Court found that there was non compliance of the provisions contained in S.328 of the Code of Criminal Procedure in committing the accused to the Sessions. The learned Judge also found that S.399 did not empower him to invoke the revisional jurisdiction and to quash the committal order. Hence the reference under S.395(2). 3. The two points arise for consideration are: (1) whether the Magistrate having referred the accused for observation and treatment to the Mental Hospital was justified in committing the accused to the Sessions without conducting an enquiry as contemplated in S.328 of the Code of Criminal Procedure; (2) whether the Sessions Court was competent to quash the committal proceedings in exercise of the revisional jurisdiction vested in that court under S.399 of the Code of Criminal Procedure. 4. S.328 deals with procedure in the case of an accused who was suspected to be a lunatic. The section reads: (1) When a Magistrate holding an inquiry has reason to believe that the person against whom the inquiry is being held is of unsound mind and consequently incapable of making his defence, the Magistrate shall inquire into the fact of such unsoundness of mind, and shall cause such person to be examined by the civil surgeon of the district or such other medical officer as the State Government may direct and thereupon shall examine such surgeon or other officer as a witness, and shall reduce the examination to writing. (2) Pending such examination and inquiry, the Magistrate may deal with such person in accordance with the provisions of S.330. (2) Pending such examination and inquiry, the Magistrate may deal with such person in accordance with the provisions of S.330. (3) If such Magistrate is of opinion that the person referred to in sub-s.(1) is of unsound mind and consequently incapable of making his defence, he shall record a finding to that effect and shall postpone further proceedings in the case." The word inquiry has been defined in S.2(g) of the Code of Criminal Procedure and it means every inquiry, other than a trial, conducted under the Code by a Magistrate or Court. S.208 deals with the formalities that the Magistrate has to observe prior to the committal of the case to a Court of Session. The difference in procedure between the present Code of Criminal Procedure and the Code of 1898 in the matter of committal is mainly confined to examination of witnesses. While the old Code contemplated taking of evidence, the present Code does not provide for taking of evidence. But, while complying with the provisions contained in S.208 and 209 the Magistrate has to peruse the records and satisfy himself that the case is one triable by a Court of Session and should remand the accused after furnishing the documents referred to in S 208. The process is judicial. The Magistrate is also expected to have an acknowledgement from the accused for having received copies of the documents. For that purpose, even assuming that the acknowledgment could be oral, the Magistrate has to satisfy himself that the accused is mentally sound and is capable of making an acknowledgment. There is no doubt that what the Magistrate is expected to do under S.208 and S.209 involves an enquiry as defined in S.2(g). Reference may be made to the decision reported in Madhavan Nair v. State of Kerala, 1978 KLT 156 , decided by one of us. It was held in that case that what is contemplated under S.209 is the committal of an accused, who is of sound mind and capable of defending himself, and that in cases where the Magistrate has reason to believe that an accused is a lunatic he is expected to proceed under S.328(3) of the Code and he should postpone the proceedings after recording a finding to that effect. In Sivaraman v. State of Kerala, 1972 KLT 121 , a Division Bench of this Court held, that the provisions contained in S.464 and S.465 of the Code of Criminal Procedure, 1898, applied in the case appealed and if notice could not be served on him under S.422 due to insanity, the hearing of the appeal had to be postponed till such time that the appellant was found to be of sound mind. Although the case was decided under the, old Code the principle will apply to cases under the present Code also. In State v. Madhavan, ( 1955 KLT 265 ), also, a case under the old Code, a Division Bench of the Travancore - Cochin High Court held that in view of S.464 of the Code of 1898, it was incumbent to examine the medical officer who issued the certificate about the mental condition of the accused and the committal order issued, without such examination, was bad for that reason. 5. The Supreme Court had occasion to consider this aspect on more than one occasion, in cases arising under Ss 464 and 465 of the Code of Criminal Procedure. In Vivian Rodrics v. State of West Bengal, (1970 (1) SCC (Cri) 33), the Supreme Court observed, if a doubt arises in the mind of the Court that there is something in the demeanour of the accused who is brought up for trial which would suggest that he is of unsound mind and consequently incapable of making his defence, it is obligatory on the Court, or the jury, in the first instance, to try the fact on such unsoundness of mind and incapacity of the accused. If the jury, or the Court, as the case may be, is satisfied of the said fact, the Judge should record a finding to that effect and should postpone further proceedings in the case. In Jai Shanker v. State of Himachal Pradesh, (1972 (11) SCWR 580), the Supreme Court had occasion to interpret the words "reason to believe" in S.464 of the Code of Criminal Procedure, which corresponds to S.328 of the New Code. In Jai Shanker v. State of Himachal Pradesh, (1972 (11) SCWR 580), the Supreme Court had occasion to interpret the words "reason to believe" in S.464 of the Code of Criminal Procedure, which corresponds to S.328 of the New Code. The Supreme Court observed: "It is clear from the mandatory language of the section that the first thing that the Magistrate has to do is to decide, when an accused person is brought before him who is suspected or alleged to be a person of unsound mind before he proceeds with the inquiry, whether such person appears to him to be of unsound mind. The words "reason to believe" indicate that when an accused person is presented before a Magistrate for enquiry, who it is alleged, is suffering from unsoundness of mind, the Magistrate has, on such materials, as are brought before him to inquire before he proceeds with the inquiry whether there are reasons to believe that the accused before him is suffering from any such infirmity. The next step is that if he has such reasons to believe, be is to institute an inquiry into the fact of unsoundness of mind and cause him to be examined by the civil surgeon or such other medical officer as the State Government directs. Therefore when a question is raised as to the unsoundness of mind of an accused person, the Magistrate is bound to inquire before he proceeds with the inquiry before him whether the accused is or is not incapacitated by the unsoundness of mind from making his defence. Such a proviso clearly is in consonance with the principles of fair administration of justice". 6.In the instant case, the Magistrate having perused the certificates produced on behalf of the accused thought it fit to send him for observation to the mental hospital at Trichur. The fact that the accused was sent for observation shows that the Magistrate had reason to suspect that the accused was of unsound mind. If that be so, it was incumbent on the Magistrate to have inquired into the fact of unsoundness of mind and for that purpose he should have waited for the result of the observation by the medical officer, should have examined the medical officer and reduced the examination in writing as contemplated in S.328(1). If that be so, it was incumbent on the Magistrate to have inquired into the fact of unsoundness of mind and for that purpose he should have waited for the result of the observation by the medical officer, should have examined the medical officer and reduced the examination in writing as contemplated in S.328(1). If, after such inquiry the Magistrate is of opinion that the accused is of unsound mind and consequently incapable of making his defence he should have entered a finding to that effect and should have postponed further proceedings in the case. In other words, having sent the accused for observation in the mental hospital, the court should have waited for the final report of the Superintendent especially in view of the interim report received suggesting insanity and requesting for further time for observation and final report In the light of the specific provision contained in S.328(1) the Magistrate was not justified in forming an opinion based on his personal observation. The committal order passed by the learned Magistrate is therefore unsustainable in law and has to be quashed. 7. The further question is whether the Sessions Judge could have quashed the proceedings in exercise of the revisional jurisdiction conferred under S.399 of the Code of Criminal Procedure. It is pertinent to note that the Code of 1898 contained a provision in S.215 which empowered the High Court to quash orders of committal in appropriate cases. Such a provision is absent in the new Code. As matters now stand a committal order can be quashed only in exercise of the revisional powers provided in the Code. Powers of revision are conferred both on the High Court and the Sessions Judge. There is, however, a marked difference between S.399(1) which deals with the revisional jurisdiction of the Sessions Judge and S.401(1) dealing with the powers of revision vested in the High Court. Under S.399(1) the Sessions Judge is competent to exercise powers of revision only in the case of any proceeding, the record of which has been called for by himself, either suo motu or on motion by somebody. The powers of the High Court under S.401 are wider. In addition to powers of revision in cases mentioned in S.399(1) the High Court is empowered to exercise powers of revision in cases which otherwise come to its knowledge. The powers of the High Court under S.401 are wider. In addition to powers of revision in cases mentioned in S.399(1) the High Court is empowered to exercise powers of revision in cases which otherwise come to its knowledge. The omission to include cases which otherwise come to his knowledge in S.399(1) has its own significance. It means that a Sessions Judge has power to exercise revisional jurisdiction only in a proceeding, the record of which has been called for by himself and not incases which come before him in the ordinary course of procedure. In the instant case, the records were not cabled for by the Sessions Judge but they were sent to that Court for trial of the case based on the committal order. The learned Second Additional Sessions Judge was therefore correct in his view that he had no power to exercise revisional jurisdiction in the instant case. 8. For reasons already mentioned the order of committal passed by the Judicial Magistrate of the Second Class, Muvattupuzha, in C. P. No. 5 of 1980 will stand quashed. The records will be sent over to him for fresh disposal, after conducting an inquiry regarding the insanity of the accused as contemplated in S.328 of the Code of Criminal Procedure. The reference is answered as above.