JUDGMENT D, P. Sood, J.—-"Whether reference under section 395 (2) of the Code of Criminal Procedure, 1973, is maintainable", is the sole question to be determined by this Court. 2. Shortly stated, the facts leading to the case in hand are that Dewan Chand accused faced trial under section 302 of Indian Penal Code. Plea of insanity was raised. Learned Addl Sessions Judge, initiated inquiry under section 329 of the Code of Criminal Procedure and ultimately found the accused to be mentally fit and not incapacitated to make his defence vide order dated September 28, 1992- 3. Feeling aggrieved thereby, he successfully assailed the said order before this Court through Criminal Revision No 97 of 1992, which was disposed of in the following terms ; "In view of the above discussions, the petition is allowed and the findings of the trial Court holding the petitioner to be capable of making his defence as envisaged under section 329 of the Criminal Procedure Code, is set aside The trial Judge is directed to call for the report of the Psychiatrist of Mental Hospital Amritsar and also to examine the Psychiatrist concerned. In addition thereto the trial Court shall also get the petitioner examined by the Psychiatrist of Indira Gandhi Medical College, Shimla", for a few days by directing the accused to be kept as indoor-patient (atleast for a period of ten days) and send for the day-to-day report of the Psychiatrist in question regarding his observation as to the behaviour of the petitioner during this period. Both the learned Counsel appearing on behalf of the parties have consented to the aforesaid mode and also to the fact that the evidence previously so recorded be also taken into consideration in coming to a finding by the trial Judge as to its satisfaction with respect to the capability or otherwise of the petitioner to make his defence. The petition stands disposed of in terms of the above." 4. Again, the accused appeared before the learned Addl. Sessions Judge, who, in terms of the order passed by this Court, got the accused medically checked up/examined through Dr. R. S. Verma, Clinical Psychologist, Government Mental Hospital, Amritsar. The petition stands disposed of in terms of the above." 4. Again, the accused appeared before the learned Addl. Sessions Judge, who, in terms of the order passed by this Court, got the accused medically checked up/examined through Dr. R. S. Verma, Clinical Psychologist, Government Mental Hospital, Amritsar. The medical expert appeared as a Court witness—CW 13 He proved his report Ex CW-13/A and record pertaining to the examination of the accused as CW-13/B The learned Addl Sessions Judge, finding the examination of the accused culminating into His report to be incomplete, conclusive and in exhaustive. referred the accused for examination to the Psychologist, Indira Gandhi Medical College, Shimla. Dr R. C Sharma had already appeared as CW-1. He was re-called and his statement was recorded on 3Otia March, 1993 He proved his report Ex CX and CY. However, as per the opinion of the learned Addl Sessions Judge, on the basis of the statement of CW-1, requisite facilities to explore the exact nature and extent of mental ailment of the accused did not exist in the entire State of Himachal Pradesh, including the aforesaid Medical College at Shimla. In this reference, he further stated that such facilities are available with Mental Hospital, Varanasi (UP) where such like accused used to be sent for examination in the past. 5. After stating the above said facts, the learned Court below has sought the guidance of this Court, by referring the matter, presumably under sub-section (2) of section 395 of the Code of Criminal Procedure. 6. Shri M S Chandel, learned Counsel appearing for the accused has very ably assisted this Court by submitting that a reference in a criminal matter must conform to the conditions laid down in sub-sections (1) and (2) of section 395 of the Code of Criminal Procedure. 7. In the instant case, a guidance has been sought for, from this Court, for collecting evidence which is not the object underlying the statutory provision. How and in what manner the evidence pertaining to the mental condition of the accused is to be collected in the inquiry, under section 329 of the Code of Criminal Procedure, depends upon the facts and circumstances of each case. The manner of inquiry pertaining to . such cases involve a decision on question of fact and for that purpose, ordinarily the Courts exercise judicial discretion. The manner of inquiry pertaining to . such cases involve a decision on question of fact and for that purpose, ordinarily the Courts exercise judicial discretion. The Court, upon the basis of the evidence so collected, is legally required to answer the question as to whether the accused is or is not mentally fit to face the trial and make his defence. 8. Now, in order to decide whether reference is maintainable, let us look at section 395 of the Code of Criminal Procedure. It lays down "395. Reference to High Court.— (I) Where any court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or Inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons there for, and refer the same for the decision of the High Court Explanation—In this section, "Regulation" means any Regulation as defined in the General Clauses Act, 1897 (10 of 1897), or in the General Clauses Act of a State. (2) A Court of Session or a Metropolitan Magistrate may, if it or he thinks in any case pending before it or him to which the provisions of sub-section (1) do not apply, refer for the decision of the High Court any question of law arising in the hearing of such case (3) In the instant case, simply guidance has been sought for as to how and in what manner the Court shouid proceed to collect evidence for the purpose of deciding the mental condition ot the accused and the Court is finding it difficult to seek proper help from the medical experts of various hospitals Such a reference is not envisaged by the statute as the final decision of the trial Court in this behalf is revisable by this Court. Since the conditions of sub-sections (1) and (2) of section 395, reproduced above, are not satisfied in the instant case, this provision cannot be invoked for entertaining the instant reference made by the learned Addl. Since the conditions of sub-sections (1) and (2) of section 395, reproduced above, are not satisfied in the instant case, this provision cannot be invoked for entertaining the instant reference made by the learned Addl. Sessions Judge, Bilaspur, Himachal Pradesh If the learned trial Court felt the necessity of getting the accused examined at some other mental hospital, he could have used his discretion and obtain the evidence as to the mental state of the accused within the ambit of section 329 of the Code of Criminal Procedure and thereafter decide the case within the ambit of section 329 of the Code of Criminal Procedure. 9. I am fortified in taking the aforesaid view by the observations made in the case of Kanshi Ram v. Lachhman and another. ILR HP Series 548. In the circumstances, it was certainly not open to the learned Court below to make a reference of this type to this Court. The result is that the reference is returned unanswered. Reference returned unanswered.