JUDGMENT 1. -The person referred to as deaf and dumb (hereinafter to be referred as 'the accused') in the order dated August 23, 1982 passed by the Munsif and Judicial Magistrate, Shri Karanpur, was tried by that court for the offence under section 3/14 of the Foreigners Act and rule 3/6 of the Indian Passport Rules. The learned Magistrate was of the opinion that the accused being deaf and dumb was unable to follow the proceedings of the Court. The learned Magistrate on the basis of the evidence recorded by him held the accused to be a Pakistan National and after recording his conviction by the aforesaid order forwarded the proceedings to this Court under section 318 of the Code of Criminal Procedure for passing appropriate order. 2. As the accused was unrepresented, Mr. J. L. Purohit was appointed Amicus-Curiae. 3. The perusal of the record shows that Dr. M. P. Agarwal (P. W. 4) was examined to state the condition of the accused. At the bottom of the statement of the accused recorded under section 313 of the Code of Criminal Procedure the learned Magistrate appended a note to the effect that the accused being deaf and dumb was unable to reply the questions put to him. On the basis of his observations and the statement of the Doctor, the learned Magistrate arrived at a conclusion that the accused under trial before him was deaf and dumb. 4. In order to press into service the provisions of Sec. 318 of the Code of Criminal Procedure the Court is to be fully satisfied about the incapacity of the person facing the trial to understand the proceedings of the Court. It is only when there is material before the Court to infer that the accused, though I not of unsound mind, cannot be made to understand the proceedings, that the proceeding with a report of the circumstances may be submitted to the High Court for appropriate orders. 5. I am constrained to observe that the learned Magistrate has not given due consideration to the material on record before arriving at a definite conclusion that the accused in question was deaf and dumb. The statement of the Dr. H. P. Agrawal (P. W. 5) does not throw any light on the point. 5. I am constrained to observe that the learned Magistrate has not given due consideration to the material on record before arriving at a definite conclusion that the accused in question was deaf and dumb. The statement of the Dr. H. P. Agrawal (P. W. 5) does not throw any light on the point. All that he has stated is about such person being produced before him and his forwarding the case to C. M. & H. O Sri Gangangar. The witness has also referred to Ex. P. 8, another document relating to the medical examination of the accused. Ex. P. 7 is an application made by the S. H. O. concerned to the Doctor, in charge P. H. C., Karanpur. At the bottom there is an endorsement by Dr. M. P. Agarwal for referring the matter to C. M. & H.O, Gangangar. There is endorsement for referring to E. N. T. Specialist. On the reverse of Ex. P. 7 there is the report of the Doctor. The designation of the Doctor is not there. Along with other facts mentioned in that report it finds place that the person under reference was not deaf and dumb.Ex. P. 8 is also an application addressed to the Doctor, Pubic Health Centre, Karanpur by the Incharge, Jail Sri Karanpur. Dr. M. P. Agrawal referred the matter to the E. N. T. Specialist for opinion. On the reverse of Ex. P. 8 there is the opinion of one Doctor Om Goyal dated September 20, 1981 stating along with other facts that the person concerned hears well. It was suggested that he should be referred to P. B. M. Hospital for further examination by Psycho Analysis. 6. The learned Magistrate does not appear to have referred to the contents of the reports by the Doctors appearing on the reverse of Ex. P. 7 and Ex. P. 8. The Court should arrive at a definite conclusion whether the person keeping quiet and not responding the questions put to him, is really unable to understand the proceedings i. e. to say whether the lack of understanding is benign or a pretext. Cases are not rare where a person may pretend not to understand the proceedings of the Court in order to claim benefit out of it or for some other reason. 7. In view of the opinion of the Doctors in Ex. P. 7 and Ex. Cases are not rare where a person may pretend not to understand the proceedings of the Court in order to claim benefit out of it or for some other reason. 7. In view of the opinion of the Doctors in Ex. P. 7 and Ex. P. 8, it was expected of the learned Magistrate to further probe into the matter by referring the case to a Medical Board, if he found it necessary in the given circumstances of the case. In the presence of the above referred two documents expressing the opinion about physical condition of the accused, I do not consider it to be a fit case in which the learned Magistrate should have proceeded under section 318 of the Code of Criminal Procedure- 8. Consequently, the order passed by the learned Magistrate dated August 23, 1982 is set aside. The case is sent back to the trial Court with the direction that necessary steps may be taken for getting the accused medically examined and obtaining expert opinion in order to arrive at a definite conclusion regarding his capacity to understand the proceedings of the Court and then proceed further according to law.Case sent back for trial. *******