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2007 DIGILAW 561 (CAL)

STATE v. S. K. JAMAL

2007-07-26

AMIT TALUKDAR, ARUN KUMAR BHATTACHARYA

body2007
( 1 ) REACHING to its logical conclusion in Sessions Trial No. 3 (2) of 2006 on 29/06/2007, the learned Fast Track Second Court at Lalbagh felt the impact of section 318 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "new Code") before saying omega and doing Just Justice. ( 2 ) AS a fall out of the same this Reference was made to this Court. ( 3 ) THE Hon'ble The Chief Justice assigned the Reference before this bench. ( 4 ) WHILE answering the Reference we will look into the provisions of law in this regard. For a profitable discussion it would be necessary to reproduce the text of Section 341 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the ("old Code") which corresponds to Section 318 of the New code. "s. 341. If the Accused, though not insane, cannot be made to understand the proceedings, the Court may proceed with the Inquiry or trial; and, in the case of a Court other than a High Court, if such inquiry results in a commitment, or if such trial results in a conviction, the proceedings shall be forwarded to the High Court with a report of the circumstances of the case, and the High Court shall pass thereon such order as it thinks fit. " ( 5 ) SECTION 318 of the new Code is also reproduced hereinbelow :- "318. Procedure where Accused does not understand proceedings- If the Accused, though not of unsound mind, cannot be made to understand the proceedings, the Court may proceed with the inquiry or trial; and in the case of a Court other than a high Court if such proceedings result in a conviction, the proceedings shall be forwarded to the High Court with a report of the circumstances of the case, and the High Court shall pass thereon such order as if thinks fit" ( 6 ) A plain reading of the provisions of Section 341 of the Old Code and Section 318 of the New Code shows that even if there has not been a major overhaul of the earlier provision, there are some subtle underlying distinctions which have to be noted with proper care while appreciating the legislative intent in answering this Reference. ( 7 ) SECTION 341 of the old Code read. ". . . . . . . . . . ( 7 ) SECTION 341 of the old Code read. ". . . . . . . . . . . . . not insane cannot be made to understand the proceedings" while the new Code emphasizes ". . . . . . not of unsound mind, cannot be made to understand the proceedings" (emphasis supplied ). The other change "results in a commitment" in the Old Code also shows a change in the New Code as the committal procedure has been done away with in the New Code. ( 8 ) NOW, after we have appraised ourselves with the statute itself, we would deal with the facts leading to this Reference which is absolutely essential to have a whole hog of the entire issue. ( 9 ) THE Accused Jamal Sk. who was an autist was arrayed in Sessions trial No. 3 (2) of 2006 before the Fast Track Second Court, Lalbagh upon his commitment in pursuance of the report in final form submitted in G. R. Case no. 333/04, to answer the following charge :- "that you, on or about the 12th day of April 2004 at about 12 o'clock at Vill-Habaspur Khas Mahal in the house of the complainant's Floor of the bathroom while Chandana Khatun aged 8 years was in her natures call, you have committed rape to chandana Khatun. . . . . thereby committed offence punishable under Section 376 (2) (f)of the Indian Penal Code. . . . . . . " ( 10 ) THE accused was produced before the Fast Track Second Court, lalbagh on 18/11/2004 but as he was physically challenged, in the direction observed by us the Fast Track Second Court Lalbagh felt that an Interpreter should be appointed as otherwise, the accused would not be able to understand the implication of the entire process. Accordingly, after passage of several days and the initiative taken by the learned Court, an Audio Legist and Speech pathologist Teacher of the Ananda Asram, Berhampore, Shri Debanjan majumdar was ultimately, appointed. ( 11 ) IT is thereafter on the same date the aforesaid charge was read over and explained to the accused through the Interpreter who pleaded not guilty and claimed to be tried. ( 12 ) FROM the order sheet dated 20/12/2005 we find that a petition was filed on behalf of the accused for engaging a State defence. ( 11 ) IT is thereafter on the same date the aforesaid charge was read over and explained to the accused through the Interpreter who pleaded not guilty and claimed to be tried. ( 12 ) FROM the order sheet dated 20/12/2005 we find that a petition was filed on behalf of the accused for engaging a State defence. The petition (appearing at page -1 of the Sessions record shows that the accused was a deaf and dumb person and was unable to bear the expenses of a Lawyer. As such, the Court would engage a Lawyer from the Legal Aid Panel and an interpreter to conduct the defence. ( 13 ) THE order dated 23/12/2005 shows that the petition, purportedly under Section 304, Cr. P. C. was allowed by the Fast Track Second Court and direction was passed for engagement of an Interpreter and Speech Therapist. Accordingly, the District Magistrate was also approached for that purpose. ( 14 ) THE examination of the witnesses started on and from 22/02/2006 being conducted by a learned State defence engaged by the Court. ( 15 ) THE examination of the witnesses was ended on 08/03/2007 and the prosecution case was closed on 27/04/2007. The accused was examined on 5. 6. 2007 under Section 313, Cr. P. C. ( 16 ) WE have traversed through the records of Sessions Trial No. 3 (2)of 2006 of the Court of learned Fast Track Second Court, Lalbagh. We find that the witnesses have been extensively cross-examined to the full length-particularly, the complainant P. W. 1 Najima Bibi, her Daughter the Victim, P. W. 2 Chandana Khatoon have been cross-examined threadbare including other attending witnesses like P. Ws. 4, 5, 6, 7, 8 and 9. ( 17 ) IF we see the evidence of P. W. 11 Dr. Jugol Kishore Paja, Medical officer of Lalbagh Sub-Divisional Hospital, we would also find that there has been pinpointed cross-examination so also the Investigating Officer, P. W. 14 was examined in great details. The examination sheet of the accused under section 313, Cr. P. C. (page-42 of the Sessions Record) shows that the same was done on the basis of the interpretation of the gestures of the accused by the Interpreter Shri Debanjan Majumdar under the signature of the accused. The examination sheet of the accused under section 313, Cr. P. C. (page-42 of the Sessions Record) shows that the same was done on the basis of the interpretation of the gestures of the accused by the Interpreter Shri Debanjan Majumdar under the signature of the accused. ( 18 ) THE accused, it would appear from a close look at the evidence and his examination under Section 313, Cr. P. C. that he has taken an effective defence after understanding the nature of the evidence adduced against him right from the stage when the charge was framed and it was explained over to him through the Interpreter. The entire records of Sessions Trial No. 3 (2) of 2006 show the accused person was absolutely aware of the offence committed by him, implications thereof and the allegations that have been levelled. In fact, if a cursory glance is given to the penultimate question put by the learned fast Track Second Court, Lalbagh to the Accused, it shows that he has even taken a specific defence. ( 19 ) IT would be fruitful to advert to the said question. ( 20 ) THE learned Fast Track Second Court asked the accused as to whether he has anything to say with regard to the case in particular. In answer he in no uncertain terms had given out through the Interpreter that he was working under the Father of the victim girl P. W. 2 and he was neither paid any money nor he was given any food and after being unwell, in order to go to the physician he asked for money from her Father who refused to pay and falsely implicated him with the case and he was innocent. ( 21 ) SIMPLY this is sufficient to draw a conclusion that it is not the case that the accused, even though he was not of unsound mind "cannot be made to understand the proceedings. " ( 22 ) ONCE we have acquainted ourselves with the factual matrix, we would now see the Authorities on this point to effectively answer the Reference. ( 23 ) FOR this purpose, we have to travel far and wide. In course of our travelogue we could lay our hands on several decisions. We rely on the decision of the First Bench of Kerala High Court In re : Peethambaran reported in AIR 1959 Kerala 165. ( 23 ) FOR this purpose, we have to travel far and wide. In course of our travelogue we could lay our hands on several decisions. We rely on the decision of the First Bench of Kerala High Court In re : Peethambaran reported in AIR 1959 Kerala 165. The First Bench of the Kerala High Court (K. T. Koshi, C. J. and M. S. Menon, J.) after discussing decisions of various High Courts held that the "provisions of Section 341 (new Section 318) can be invoked only when an Accused person is absolutely unable to follow the proceedings and the Court making such Reference should record a finding to that effect. " ( 24 ) WE also find that the view taken by the Sind Chief Court in Isso s/o Gaman and Anr. v. Emperor reported in AIR 1943 Sind, 237 Sir Godfrey davis, CJ. and Weston, J. had held that. . . . . "court has to be satisfied that the accused cannot be made to understand the proceeding" to be a correct view. ( 25 ) SIMILARLY, Sir Shadi Lal, Chief Justice of the Lahore High Court in king Emperor v. Gunga reported in AIR 1927 Lahore, 799 (1) had held that sine qua non of application of Section 341 (new Section 318) is that the "accused must be unable to understand the proceeding then only the reference under this section can be made. " ( 26 ) NEARER home, we have the decision of Allahabad High Court in-King emperor v. Ulfat Singh, AIR 1947 Allahabad 301 where Bidhu Bhushan malik (As the learned Chief Justice then was) also came to the similar finding. ( 27 ) AFTER we had made a foray in the entire issue, we find that the legal principle culminated on the basis of the assessment of the statute and perception of the Authorities, which we could lay our hands on, the following picture emerges :-Sine qua non of the application of Section 318 is that the accused cannot understand the proceedings which is brought against him even though he is not of unsound mind so as to preclude him to answer the charge brought against him and to take a proper defence. It is only in such a situation first, the learned trial Court record a finding to that effect and then make a Reference. It is only in such a situation first, the learned trial Court record a finding to that effect and then make a Reference. Pursuant to such Reference, the High Court "shall pass" thereon such order as it thinks fit. ( 28 ) IN other words, Section 318, even though it empowers the trial court to convict the Accused, it forecloses the later from passing an order of sentence and after recording its finding to the effect that the accused is unable to understand the proceedings against him to submit the Reference to the high Court whereupon the High Court would be entitled to examine the proceedings of the trial Court in the light of the findings of the learned Magistrate to the effect that the accused is unable to understand the proceedings. The order proposed to be passed in a Reference shall always depend upon the circumstances in each case. We have wide powers vested by virtue of the section 318 of the new Code. We can impose a sentence, order a re-trial or even discharge the Accused. ( 29 ) IN fact, the High Court has a very sweeping power to impose straightway the sentence while answering a Reference. ( 30 ) WE would now proceed to answer the Reference in the following manner and sum up the entire issue. ( 31 ) IT cannot be said that the accused did not understand the proceeding as we have seen he has participated in the trial and taken a proper defence and cross-examined various witnesses. He also took a specific defence during his examination under Section 313, Cr. P. C. He was represented by Shri debanjan Majumdar, an Audio Legist and Speech Teacher in Ananda Asram who interpreted the entire evidence to the Accused- his defence to the Court. ( 32 ) SINCE our appraisal of the entire records of Sessions Trial No. 3 (2)of 2006 shows that even for a moment the accused was not in the dark with regard to the entire proceedings brought against him, in our view, after convicting the accused in respect of the charge-the Reference made by the learned Fast Track Second Court, Lalbagh under Section 318, Cr. P. C. was not appropriate. It seems, that more out of the plea raised at the Bar than on the basis of his own judgment the learned trial Court made the Reference. P. C. was not appropriate. It seems, that more out of the plea raised at the Bar than on the basis of his own judgment the learned trial Court made the Reference. The conclusion of the learned Fast Track Second Court, which we quote :- ". . . . . . . . . . At the time of examination of the Accused under Section 313, Cr. P. C. the help of an expert from Berhampore was taken and he interpreted the entire evidence against the convict to the convict. The convict was also defended by Advocate on legal aid. But still then there may be doubt whether the proceedings could be fully made to understand to the convict or not as this Court is not an expert on this field. " ( 33 ) IN our view, the aforesaid conclusion is not pari pasu with the factual position reflected from the order sheet and as from the legal aspect we have seen that unless the Accused is unable to understand the proceeding, which is not the case in the present trial, there cannot be any application of Section 318, Cr. P. C. ( 34 ) ACCORDINGLY, the answer is returned in the negative. ( 35 ) LEARNED Registrar, is requested to send down the Lower Court records with certification of this answer to the Fast Track Second Court, lalbagh by a Special Messenger. Thereafter the Fast Track Second Court, lalbagh would pass appropriate sentence as stipulated under the law for the charge in respect of Section 376 (2) (f) of the Indian Penal Code.