B. J. SHETHNA, J. ( 1 ) APPELLANT-NARSIBHAI DDahyabhai Kanazariya has filed this appeal through jail challenging the impugned judgment and order of conviction and sentence passed by Shri N. C. Chaudhary, learned Additional Sessions Judge, Jamnagar on 25. 9. 2002 in Sessions Case No. 75/01 whereby the learned Judge convicted the appellant-accused for the offence under Sec. 302, IPC and sentenced him to suffer life imprisonment and for the offence under Sec. 307, IPC and sentenced him to suffer 7 years RI and to pay fine of Rs. 250/- in default to further undergo 10 days SI and for the offence under Sec. 135 (1) of Bombay Police Act and sentenced him to suffer 3 months si and to pay fine of Rs. 100/- in default to further undergo 5 days SI. All the sentences were ordered to run concurrently. ( 2 ) ON the request made by the appellant-accused to provide him legal aid, Shri supehia, learned Counsel was appointed to defend him in this appeal. Initially, this matter was placed before this Court on 10. 2. 2003 for admission. Learned Counsel Shri Supehia for the appellant-accused submitted that as per the prosecution case, the appellant-accused committed murder of his minor daughter vijaya, aged 15 and minor son Dilip, aged 5 by giving axe blows at early morning hours of 4. 00 a. m. on 22. 3. 2001 and also assaulted his wife with axe on her head and his minor son Mahendra on his waist. Thus, he was tried for the offence under Sec, 302, ipc for committing murder of his own minor children Vijaya and Dilip and for the offence under Sec. 307, IPC for attempting to commit murder of his wife Daniben and his minor son Mahendra. ( 3 ) HE submitted that relying on the evidence of Daniben, wife of accused, the learned Judge came to the conclusion that the prosecution proved its charge against the accused beyond reasonable doubt and, therefore, held him guilty for committing murder of his minor children Vijaya and Dilip and for attempting to commit murder of his wife Daniben and another minor son Mahendra. Shri Supehia also submitted that daniben, wife of accused made certain admissions in her evidence, which prima facie, go to show that the appellant-accused must be of unsound mind when he committed aforesaid offence. Shri Supehia also submitted that daniben, wife of accused made certain admissions in her evidence, which prima facie, go to show that the appellant-accused must be of unsound mind when he committed aforesaid offence. Ordinarily, any person with sound mind would not kill his own minor children and try to kill his wife and another minor son without any rhyme or reason. Considering the evidence of Daniben we were prima facie of the view that at the time of commission of offence the accused must not be of a sound mind. Therefore, at the request of learned Counsel Shri Supehia, we directed jail authorities to produce appellant-accused from jail before this Court on 13. 2. 2003 at 11. 00 a. m. and jail Doctor was also directed to submit his preliminary report about the condition of the appellant-accused and his state of mind. ( 4 ) IN pursuance of our order dated 10. 2. 2003 the appellant- accused-Narsibhai dahyabhai Kanazariya was kept present before the Court from jail. Learned APP Shri Dave had produced before us the jail record of the appellant-accused, which shows that he remained in jail as under trial prisoner, for more than one and half year and undergone actual sentence for nearly a period of 5 months. Thus, in all, for a period of about 2 years he remained in jail. Shri Dave has also produced the certificate dated 23. 2. 2003 issued by Medical Officer (G. M. S.), ahmedabad Central Jail, wherein it was stated that the accused was examined and treated by psychiatrist of Civil Hospital, Ahmedabad and according to him the patient was found to be suffering from psychiatric disorder from his history, behaviour, attitude and interview, etc. It was opined that the accused needed regular treatment and follow ups. It was also mentioned in the certificate that the accused was not able to judge properly and lacking insight regarding his illness. He was advised to take treatment for at least 30 days from the specialist psychiatrist and continue follow up. ( 5 ) WHEN the appellant-accused was produced before us on 13. 2. 2003, we had an opportunity to see the appellant-accused. He was put certain questions with a view to ascertain the mental fitness, but he was neither able to understand nor reply to any of the questions put to him by the Court. ( 5 ) WHEN the appellant-accused was produced before us on 13. 2. 2003, we had an opportunity to see the appellant-accused. He was put certain questions with a view to ascertain the mental fitness, but he was neither able to understand nor reply to any of the questions put to him by the Court. From his behaviour and attitude, prima facie, we were of the opinion that he was suffering from psychiatric disorder. ( 6 ) FROM the original record of the case, which was with us, we had noticed that the io submitted application dated 23/27. 3. 2001 to the learned J. M. F. C. , Khambalia for the mental check up of the accused. He was found to be short tempered man and while remaining in custody for 2-3 days he was not talking to anyone and he was in deep depression and as per his past history, before one year of incident he suffered with the stroke of schizophrenia and since then he was not talking to anyone and not doing anything. Shri P. M. Champaneri, the then J. M. F. C. , Khambalia passed an order dated 27. 3. 2001 on the above application submitted by the IO for sending the accused for medical check up and directed Jail Superintendent, Jamnagar Jail for the medical check up of the accused and submit his report regarding mental illness of the accused. Unfortunately, same learned Magistrate, in a little haste, passed order dated 11. 6. 2001 and committed case against the accused to the Court of Sessions for the offence under secs. 302 and 307, IPC and under Sec. 135 (1) of Bombay Police Act without report of the Doctor about the mental illness of the accused. ( 7 ) THE appellant-accused is poor. It seems that because of his mental condition, no one from his family was ready or willing to help him. Therefore, he was provided legal aid before the Sessions Court and Advocate Shri D. J. Trivedi was appointed to defend his case. Thereafter, charge for the aforesaid offences was framed against the appellant-accused by Shri N. C. Chaudhary, Sessions Judge, Jamnagar on 12. 7. 2002. Trial commenced from 12. 7. 2002 and continued till 25. 9. 2002 and, thereafter, the case was kept for pronouncement of judgment on 25. 9. 2002. Thereafter, charge for the aforesaid offences was framed against the appellant-accused by Shri N. C. Chaudhary, Sessions Judge, Jamnagar on 12. 7. 2002. Trial commenced from 12. 7. 2002 and continued till 25. 9. 2002 and, thereafter, the case was kept for pronouncement of judgment on 25. 9. 2002. On that day learned Judge convicted the accused for the offence under Secs. 302 and 307, IPC and under Sec. 135 (1) of Bombay Police Act and sentenced him, as stated earlier. ( 8 ) IT was most unfortunate that though the application was submitted by the IO before the learned J. M. F. C. , Khambalia for sending accused for his mental check up to the Doctor, but the learned Magistrate, Shri Champaneri passed an order without waiting for the report of the Doctor committed the case to the Court of Sessions against the accused. Therefore, Shri Champaneri, the then learned J. M. F. C. was directed to offer his explanation latest by 27. 2. 2003 i. e. , today, that how he passed such committal order and committed the case to the Court of Sessions against the accused without the report of the Medical Officer when he himself had passed the order dated 27. 3. 2001 on an application dated 23/27. 3. 2001 submitted by IO for sending the accused for his medical check up. ( 9 ) SUPERINTENDENT of Jamnagar Jail was also directed to offer his explanation as to why he had not submitted medical certificate of the accused though he was directed to io so by the learned Magistrate on 27. 3. 2001. ( 10 ) J. M. F. C. , Khambalia and Superintendent, Jamnagar Jail both have sent medical certificate regarding the mental condition of the appellant-accused as per order dated 17. 3. 2001 passed by learned J. M. F. C. , Khambalia. ( 11 ) AS per certificate dated 13. 3. 2003 issued by the Medical Officer (G. M. S.), ahmedabad Central Jail, it was clear that the appellant is suffering from psychiatric disorder. Thus, he is a psychiatric patient and he requires regular treatment. The appellant-accused was represented by appointed Advocate Shri Supehia, therefore, on 13. 2. 2003 we directed that he may be given best treatment till further orders and the matter was kept today i. e. , 27. 2. 2003. ( 12 ) IN pursuance of our order dated 13. 2. Thus, he is a psychiatric patient and he requires regular treatment. The appellant-accused was represented by appointed Advocate Shri Supehia, therefore, on 13. 2. 2003 we directed that he may be given best treatment till further orders and the matter was kept today i. e. , 27. 2. 2003. ( 12 ) IN pursuance of our order dated 13. 2. 2003 the then J. M. F. C. , Khambalia, Shri champaneri, present Joint Civil Judge (SD), Porbandar, at present Joint Civil Judge, porbandar submitted his detailed report dated 24. 2. 2003 to the Registrar of this Court, which runs into 4 typed pages. He has tried to offer all sorts of excuses. Firstly, he stated that "as per my humble view and knowledge that after the submission of charge-sheet of sessions triable case, the Presiding Officer simply has to pass an order for committal without deciding anything on merits as early as possible without any unnecessary delay disposing of the committal proceedings in any event within a period of not exceeding two months from the date of submission of charge-sheet as per the provisions of Criminal Manual, Chapter IV Para 83. Therefore, it is binding and compulsory to the Magistrate to commit the charge-sheet at any time within the said period. " the above explanation offered by Shri Champaneri cannot be accepted for the simple reason that in this case, charge-sheet was submitted by the Police on 21. 5. 2001 and within twenty days thereof i. e. , on 11. 6. Therefore, it is binding and compulsory to the Magistrate to commit the charge-sheet at any time within the said period. " the above explanation offered by Shri Champaneri cannot be accepted for the simple reason that in this case, charge-sheet was submitted by the Police on 21. 5. 2001 and within twenty days thereof i. e. , on 11. 6. 2001 he committed the case to the Court of Sessions, whereas the outer time limit under Para 83 of the Manual is two months it is also provided in Para 83 that for any reason if the Magistrate is not able to dispose of committal proceedings within the period of 2 months from the date of submission of the charge-sheet, then he has to submit his detailed reasoned report to the Chief Metropolitan Magistrate or Chief Judicial Magistrate as the case may be therefore, in this case if he had not received the report from the Doctor, about the mental condition of the accused, within a period of 2 months of the submission of the charge-sheet, then also he could have submitted his reasoned report to the Chief judicial Magistrate that because there was a delay on the part of the Medical Officer to submit his report regarding mental condition of the accused, therefore, he could not commit the case against the accused to the Court of the Sessions within a period of 2 months. Second excuse which he tried to offer in his report is that the concerned IO did not produce the medical report till the date of committal of charge-sheet. In our considerec opinion, when he had ordered the Doctor to submit his report then it was his duty tc find out why the Medical Officer had not submitted his report. He has also tried to throw the burden on his clerk by stating that it was the failure of the concerned clerk not to bring to his notice that the medical report was not received when he committed the case to the Court of Sessions. This is highly improper on his part to shirk his responsibility in this manner. He also tried to submit a lame excuse that he was over-burdened with the work. It our considered opinion he was negligent in discharging his duties in such type or sensitive cases. This is highly improper on his part to shirk his responsibility in this manner. He also tried to submit a lame excuse that he was over-burdened with the work. It our considered opinion he was negligent in discharging his duties in such type or sensitive cases. Lastly, he stated that "it is the duty of every person concerned, to declare am mention necessary facts before the Court at the same time the Presiding Officer is also duty bound and cannot get rid of responsibility, but without the help of all the machinery, it is some what difficult for Presiding Officer to handle the matter in nice way". In the instant case it was the duty of the learned Magistrate to wait till the report of the Medical Officer was received before passing the committal order. For that he cannot throw the blame on others like his clerk and others. ( 13 ) UNDER the circumstances, the explanation offered by the learned Magistrate is wholly unacceptable and suitable action could have been taken against the learned magistrate, but he has also stated in his report that "if your Lordships is not pleased with my explanation, I with open heart beg your Lordships pardon and apology because there was no any bad or mala fide intention or intention oversight". . . . . "i hereby humbly assure to your Honble Lordship to be more particular, careful and cautious in future". Therefore, we do not propose to take any action in the matter and simply warn the learned Magistrate to be more careful in future. However, copy of this order be kept in his confidential record. ( 14 ) IN pursuance of the order dated 13. 2. 2003, Dr. Manubhai Parmar, Associate professor of Psychiatry, M. P. Shah Medical College, Guru Govind Singh Hospital, jamnagar has submitted his report dated 21. 2. 2003, wherein, it is stated that accused- narsibhai was examined by Dr. R. R. Gandhi on 4. 4. 2001 at Jail Dispensary, Jamnagar. He was also examined on 11. 4. 2001 and as per examination report of Dr. Gandhi, he had opined that the patient is suffering from psychiatric illness i. e. , schizophrenia. ( 15 ) THE incident in question was alleged to have taken place in the early morning hours of 4. 00 a. m. on 22. 3. 2001 and IO himself submitted his application dated 23/27. 3. 2001 and as per examination report of Dr. Gandhi, he had opined that the patient is suffering from psychiatric illness i. e. , schizophrenia. ( 15 ) THE incident in question was alleged to have taken place in the early morning hours of 4. 00 a. m. on 22. 3. 2001 and IO himself submitted his application dated 23/27. 3. 2001 to the learned Magistrate for the mental check up of the accused because of his behaviour in Police custody for a couple of days. His immediate check up on 4th and 11th April, 2001 shows that he was in fact suffering from schizophrenia. As per the evidence of PW. 9-Daniben the accused was suffering from schizophrenia since last one year, prior to the date of incident. Thus, we are of the, prima facie, opinion that at the time of the incident the appellant-accused must not be of sound mind. ( 16 ) AS per our order dated 13. 2. 2003 the appellant-accused is being given treatment in jail. Unfortunately, no one from his family is coming to inquire about him since last more than 2 years, therefore, the appellant-accused must be given further treatment in jail. Shri Kharadi, Superintendent, Sabarmati Jail, Ahmedabad and Dr. B. B. Zaveri, Jail medical Officer, who are present before the Court, have also assured us that the appellant will be given best psychiatric treatment in jail. ( 17 ) SHRI Kharadi stated that maximum capacity to keep accused persons in sabarmati Central Prison is only 1671, however, at present there are about 2750 prisoners in Sabarmati Central Prison. Out of that more that 50% prisoners are convicts and rest of them are either under-trial prisoners or the persons kept under preventive detention laws like PASA, etc. There are about 74 female accused, against the maximum capacity of 20. He also stated that there is a dispensary in the jail having indoor ward with 25 beds. Dr. B. B. Zaveri, Medical Officer, Sabarmati Jail stated that he is staying in jail quarters and alongwith him another Dr. J. M. Joshi is posted as Medical Officer (Jail), but he is not staying in jail quarter. He stated that one Dentist used to visit jail once in a week. However, ENT, Skin specialist and Psychiatrist Doctors visit only once in a fortnight to treat the prisoners. J. M. Joshi is posted as Medical Officer (Jail), but he is not staying in jail quarter. He stated that one Dentist used to visit jail once in a week. However, ENT, Skin specialist and Psychiatrist Doctors visit only once in a fortnight to treat the prisoners. He also stated that there may be about 8-10 completely mental patients in the Sabarmati Central Jail and some more patients are there, who are not completely mental patients. If it is true then it is really shocking. ( 18 ) LAST week only Criminal Appeal No. 116 of 1998 filed by the appellant-accused- Vashram M. Koli through jail was decided by this Court and in that case also we found that the accused was a mental patient. This is the second case which we have come across during a period of less than two months, where accused was found to be mental patient, therefore, we had directed the learned APP, Shri Dave to keep Superintendent of Jail as well as Medical Officer from jail present before us. Accordingly, Shri Kharadi, Jail Superintendent and Dr. B. B. Zaveri both have remained present. ( 19 ) FROM what has been pointed out to us by Superintendent, Shri Kharadi and Dr. Zaveri, we feel that it is a matter of great concern. Looking to the increasing crime rate and more convictions after establishment of Fast Track Courts in the State, the strength of the accused persons is bound to increase in jail. Present jails in the State are old having limited capacity, but almost in all jails more prisoners are kept. It is likely to create many problems. The Honble Supreme Court in the case of Shersingh vs. State of punjab, reported in AIR 1983 SC 467 (Para 17) has held that there is positive obligation of the State to take steps for providing human conditions in jails. Therefore, the authorities must give their immediate attention to this obligation by establishing more jails in the State. Till then, the State Government has to keep at least two Medical Officers, who must stay in jail quarters only. Therefore, the authorities must give their immediate attention to this obligation by establishing more jails in the State. Till then, the State Government has to keep at least two Medical Officers, who must stay in jail quarters only. Alongwith them, at least one Psychiatrist should also be permanently posted in the jail or should visit the jail every day so that clear opinion regarding mental condition of the accused comes before the Court at the stage of trial, and the mental condition of a large number of prisoners is properly taken care of. ( 20 ) IT is hoped and trusted that the Chief Secretary may look into this and take immediate action in the matter at the earliest and not later than 30th April, 2003. ( 21 ) AT the joint request of the learned Counsel for the parties, this matter is kept before this Court for further orders on 2. 5. 2003 at 2. 15 p. m. On that day Jail superintendent and both the Doctors posted in the Sabarmati Central Jail may also personally remain present at 2. 15 p. m. The appellant accused may also be kept present before this Court at 2. 15 p. m. The appellant-accused, who is produced before us be sent back to the jail. In the meanwhile, the authorities shall continue to provide medical treatment to the appellant-accused in jail. .