ORDER : Thomas P. Joseph, J. Petitioner is accused in CP No. 33 of 2009 of the Court of learned Judicial First Class Magistrate-I, Ernakulam for offence punishable under Section 302 of the Indian Penal Code (for short, "the IPC"). During the course of committal proceedings it was brought to the notice of the learned Magistrate that petitioner, being mentally retarded is unable to make his defence. Thereon learned Magistrate conducted enquiry as provided under section 328 of the Code of Criminal Procedure (for short, "the Code") and on finding that petitioner is able to make bis defence committed the case for trial to the Court of learned Sessions Judge as per Annexure-A7, order dated September 20, 2010. Proceedings before the committal Court and Annexure-A7, order are challenged in this proceeding at the instance of petitioner. Learned counsel has contended that it was mandatory to ascertain whether petitioner on account of mental retardation is capable of making his defence, such enquiry has not been conducted by appropriate authorities and hence proceedings before committal Court and Annexure-A7, order are vitiated. Learned counsel contends that petitioner is entitled to have a fair trial which includes his ability to understand the case against him and make a proper defence. Learned counsel has placed reliance on the decision in Madhavan Nair v. State of Kerala, 1978 KHC 37 : 1978 KLT 156 : ILR 1978 (1) Ker. 485 and the observations at page 159, in particular. I have heard learned Public Prosecutor as well in the matter. 2. Charge against petitioner is one under Section 302 of the I.P.C. It is stated that petitioner was staying at Snehanilayam which is an institution for mentally challenged persons from 1984 to 1991. Annexure-A1 is the certificate issued from the said institution stating so That certificate also states that IQ of petitioner shows that he is mentally challenged of moderate degree and that (notwithstanding his biological age) his mental age is four and a half years Obviously in the light of the said situation learned Magistrate directed an enquiry to be conducted into the mental capacity of petitioner to stand trial. He was referred to a Civil Surgeon who suggested that his examination at Mental Health Centre is required. Petitioner was referred to the Mental Health Centre. He was referred to a Civil Surgeon who suggested that his examination at Mental Health Centre is required. Petitioner was referred to the Mental Health Centre. The Assistant Surgeon attached to that institution, according to the petitioner without conducting proper examination reported that petitioner is fit for trial. Petitioner thereon filed CMP No. 2003 of 2009 to send him for further examination to the Mental Health Centre. Learned Magistrate allowed that petition by Annexure-A2, order dated October 21, 2009. Before doing so, learned Magistrate has also examined the Assistant Surgeon as CW1 and marked her report as Ext. C1. Learned Magistrate was of the view that deposition of CW 1 would show that she had not conducted any medical test to determine mental state of petitioner and instead, opinion was based on mere clinical observation and examination. Learned Magistrate thought that it is necessary to have a detailed study of the mental state of petitioner, allowed CMP No. 2003 of 2009 and referred petitioner to the Superintendent of Mental Health Centre, Thrissur. The latter was directed to constitute a Medical Board consisting of a Neurologist, Psychiatrist and a Psychologist to evaluate mental condition of petitioner. The Superintendent was directed to file a report before the Court after examination. Accordingly petitioner was sent to the Medical Board constituted by the Superintendent of Mental Health Centre and he was examined by that Board. The Superintendent of Mental Health Centre submitted Annexure-A3, report dated April 12, 2010 stating that physiological and psychological evaluation was done "clinically" and that there is evidence of mild retardation. Petitioner was called for a psychological testing of quantification of his IQ on 09/04/2010 but he was not brought for that test. Based on the available materials, Superintendent opined in Annexure-3 that "Mr. Rasheed is having mild mental retardation's. There is no evidence and another psychiatric syndrome or neurological abnormalities." The Superintendent was examined CW 2 (his deposition is Annexure-A4). Then also he stated that Medical Board had examined petitioner on 05/04/2010 when he was found to have mental retardation, an IQ test was arranged on 09/04/2010 but petitioner was not brought for that test. There was no symptoms of any psychiatric illness or neurological abnormalities. He can understand the nature of trial and has slight mental retardation. Witness stated that petitioner is not insane and that sanity and mental retardation are different. There was no symptoms of any psychiatric illness or neurological abnormalities. He can understand the nature of trial and has slight mental retardation. Witness stated that petitioner is not insane and that sanity and mental retardation are different. Learned counsel argued about the manner of diagnosis of mental retardation as per the latest edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) and that three criteria must be met for a diagnosis of mental retardation an IQ below 70, significant limitations in two or more areas of adaptive behaviour (as measured by an adaptive behaviour rating scale, i.e.., communication, self-help skills, interpersonal skills and more) and evidence that the limitations became apparent before the aged of 18. 3. Based on the opinion of Superintendent of Mental Health Centre, learned Magistrate has passed Annexure-A6, order. Learned Magistrate opined that concurrent findings in Exts. C1 and C2 are sufficient to arrive at the conclusion that petitioner is sane and can understand the nature of trial and is fit to stand trial. Though petitioner has mild retardation and his IQ is sightly low CMP No. 1574 of 2010 filed by petitioner to send him for further test to the Medical Board was not accepted. Following that, learned Magistrate has passed Annexure-A7, order of committal. It is the said proceedings which are under challenge as first above stated. 4. Though originally mental retardation was not a subject matter of enquiry under section 328 of the Code, that has been brought into the Statute by Act 5 of 2009 with effect from 31/12/2009. Now as the position stands the Magistrate is to conduct an enquiry whether an accused is mentally retarded as well. Section 328 of the Code prescribes the procedure. Sub-section (1) of Section 328 states that when a Magistrate holding an enquiry has reason to believe that the person against whom the enquiry is being held is of unsound mind and consequently incapable of making his defence, the Magistrate shall enquire 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. Sub-section (1A) incorporated by Act 5 of 2009 as above stated, states that if the Civil Surgeon finds the accused to be of unsound mind, he shall refer such person to a Psychiatrist or Clinical Psychologist for care, treatment and prognosis of the condition and the Psychiatrist or Clinical Psychologist as the case may be shall inform the Magistrate whether the accused is suffering from unsoundness of mind or "mental retardation". It is pursuant to the said provision that learned Magistrate has undertaken the enquiry in the present case. Now the question is whether enquiry conducted and finding entered by learned Magistrate would stand the test prescribed under Section 328 of the Code above stated. Learned Magistrate was right in referring petitioner to the Medical Board in the light of the in-perfect examination conducted by the Assistant Surgeon and obtaining a report. But it is seen from Ext. C2 (Annexure-A3) and the statement of CW 2 (the Superintendent of Mental Health Centre) that though the Medical Board wanted an test to be conducted on 09/04/2010 but petitioner was not made available for that test which meant that the IQ test was not conducted. In otherwords, it was without conducting IQ lest that the Superintendent of Medical Health Centre opined in Annexure-A3 that mental retardation is mild and, in his evidence as CW 2 it is stated that there was no symptom of any psychiatric illness or neurological abnormalities and that he can understand the nature of trial. 5. In Madhavan Nair v. State of Kerala referred to above learned Judge observed: "Valuable rights have been conferred on the accused under Sections 207 and 209 of the Code and as stated earlier, he is entitled to free copies of statements and documents referred to therein and the Magistrate is bound, without delay to furnish such statements and documents to the accused. If the person accused of an offence is a lunatic incapable of defending himself and understanding what is happening in the Court, how it is possible for the Magistrate to comply with the requirements of the salient provisions in Sections 207 and 208. Before action under Section 209 is taken against an accused, he is entitled to get copies of statements and documents which give him notice of the case which he has to meet. Before action under Section 209 is taken against an accused, he is entitled to get copies of statements and documents which give him notice of the case which he has to meet. While passing an order under Section 209, the accused must know that he was being committed to the Court of Session. But all these requirements can be complied with only in the case of a person of sound mind and not of unsound mind.........." In other words, the Magistrate must be satisfied from the enquiry he has conducted that petitioner is capable of understanding things and making his defence in a meaningful manner. It is only such a situation, case could be committed to the Court of Sessions for trial. As I stated, one thing is lacking in the present case, i.e. quantification of the IQ of petitioner and an opinion based on that. In such a situation it is doubtful whether petitioner is able to make his defence in a meaningful manner. I consider that it is not fair to commit petitioner for trial in such a doubtful situation. I do not forget that under Section 329 of the Code, learned Sessions Judge also has a similar power. But, going by Sub-section (1) of that provision the said situation arises when the Sessions Judge has reason to think at the trial (i.e. after framing charge) that the person concerned is of unsound mind. For the purpose of an effective and meaningful framing of charge and trial, petitioner should be capable of making his defence. Having regard to these matters I am inclined to think that committal was not proper. 6. Resultantly this petition is allowed and Annexures-A6 and A7, orders are set aside. Learned Judicial First Class Magistrate-I, Ernakulam is directed to conduct further enquiry into the matter as provided under Section 328 of the Code by directing the Superintendent of Mental Health Centre to conduct a detailed psychologic test for quantification of the IQ of petitioner as suggested in Annexure-A3, certificate and based on that, to report whether petitioner is capable of standing trial and pass appropriate consequential orders in the matter.