JUDGMENT : 1. This criminal reference has been made by the Principal Sessions Judge, Reasi in case FIR No.114/1996 under Section 302 RPC registered at Police Station, Reasi. Ram. 2. From perusal of the reference, it reveals that the case of the prosecution was that on intervening night of 14/15 of August, when the complainant was sleeping in his home along with his family members, meanwhile lights were off all of a sudden at 11.30 p.m, a sound with regard to the killing was raised and when the complainant and his family members got up, switched on the electric bulb in the room, they were terror stricken to see that the complainant’s son, namely, Chander Posh was bleeding from his head, who was unconscious, whose pulse was going feeble, who was shifted to Pouni hospital, but after proceeding 200 years towards the hospital, he succumbs to his injury. On this report, a case under FIR No.114/2009 under Section 302 RPC was registered. The investigation started and after completing the investigation, it was found that accused Lalit Narian was inimical to the deceased, as the deceased being elder brother of the accused, used to advise him and reprimand him for his follies. The accused on the basis of this enmity, committed deliberate murder of the deceased, the accused was taken into custody and accordingly challan was produced before the learned Sub-Judge, JMIC, Reasi on 05.01.1996, who committed the same to the court of learned Principal Sessions Judge, Reasi on 16.07.1998. The learned Sessions Judge, Reasi vide order dated 24.11.1998 after getting the accused medically examined observed that the accused is suffering from Chronic Psychiatric illness. Accordingly, the proceedings under Section 466 Cr.P.C were resorted to and the trial was ordered to be suspended. The accused was detained in safe custody in the Central Jail, Jammu with the direction that he should be periodically examined from Psychiatric Disease Hospital, Jammu, who has not recovered from psychiatric illness till the reference was made before this Court. 3. The concluding paras of the order of reference made by the learned Sessions Judge, Reasi reads as under: “…29.The question therefore, arises as to what course is left with the court to administer justice and what is the scope under law for this court to make reference. 30. 3. The concluding paras of the order of reference made by the learned Sessions Judge, Reasi reads as under: “…29.The question therefore, arises as to what course is left with the court to administer justice and what is the scope under law for this court to make reference. 30. Under Section 432 this court can only make reference when the constitutional validity of any statute of law is involved which though may not directly seem to be the case herein under S 438 the Sessions Court is empowered to make reference of any order or proceeding which may have been examined under S 435 Cr.P.C or otherwise the record of any proceeding and these words or otherwise the record of any proceeding provide a scope for this court to make reference when it seems that continuance of proceedings shall be abuse of process of law. 31. In the instant case when the accused is not able to defend himself and neither any of his relatives is ready to take him back nor anybody undertakes to provide for his maintenance or take his care and the earlier counsels engaged have shown their helplessness in the matter and if the court holds that there is no provision to make reference, the same can be said to be giving rise to an unpleasant situation and the contemplation of vacuum for doing justice under law is not envisaged under the constitution when this court will be exercising the powers under Cr.P.C code subordinate to the constitution and can exercise the jurisdiction for protecting constitutional rights of the accused. 32. 32. It may not be out of the place to mention here that India is signatory of United Nations Convention of Mentally Disabled persons and the court is also holding the post as ex officio chairman District Legal Services Authority under the State legal services Authority Act and cannot be presumed to shut its eyes when such a contingency arises and while dealing with this case also deems it proper that a direction should be issued to all the magistrates in the district and to the Superintendent District Jail, Reasi and Jammu to report to this court in respect of the cases within the jurisdiction of this Session division regarding the accused if any with respect to whom the trial has remained suspended and the accused is languishing in jail so that appropriate action under the existing law relating to mentally ill persons may be taken. 33. So far as this case is concerned, this court on the basis of law laid down in Hussani Ara or A.R. Anatulay’s case, cannot quash the proceedings in murder case suo moto being the court vested with ordinary criminal jurisdiction or truncate the proceedings as per law laid down under Satish Mehra vs. Delhi Administration 1996 (3) Crimes 85, so, under the spirit of constitutional view of justice and extending the scope of referral provisions of Cr.P.C therefore, court deems it proper for doing substantial justice in accordance with law in the present scenario that traditional orthodoxy of courts in their reluctance in adopting of new ideas should not be technically adhered to and dynamic approach to meet the coming challenging in order to promote justice should be adopted which shall pave way for radically judicially sound methodology suitable to the ground situation which merits to be adopted in this case that is why this court considers that this is a case where extra ordinary jurisdiction merits to be invoked under Section 561-A Cr.P.C, in pursuance of the authoritative pronouncement of the Apex Court in the Country in Veena Sethi v/s State of Behar 1982(2) SCC 583 for which this court is constrained to hold that this case is a fit one for which making of reference is necessitated. Thus the case is therefore, referred to the Hon’ble High Court, and through Registrar Judicial for placing before appropriate Bench as may be deemed proper. 34. Thus the case is therefore, referred to the Hon’ble High Court, and through Registrar Judicial for placing before appropriate Bench as may be deemed proper. 34. While dealing so, it is to be mentioned that the accused in the instant case is still suffering from a psychiatric illness, who is not able to speak and understand properly, As evident from the interim orders even father has refused and no nearest kin of the accused has come forward to hand him over to him or them for taking his care and no positive response has come from the government, nor is there any Home for such accused in the District. The random release of the accused without his proper case will not be in his interest as there is likelihood that he may either cause harm to himself or to any other person. As such, subject to the orders of Hon’ble High Court, the accused is ordered to be released and kept in the case Psychiatric Hospital, Jammu till 21.2.2011 for dealing under Mental Health Act, under law. The case file be submitted to Hon’ble High Court before the next date. Copy of this order shall go to State Heath Authority and another copy to Inspector General of Prisons for information and necessary action.” 4. I have considered the order under reference. Sections 432 & 466 of the Cr.P.C read as under: “432. Reference to High Court (1) Where any Court is satisfied that a case pending before it involves a question as to the validity of any Act or Ordinance, or of any provision contained in an Act or Ordinance, the determination of which is necessary for the disposal of the case, and is of opinion that such Act or Ordinance 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 therefore, and refer the same for the decision of the High Court. (2) Any Court making a reference to the High Court under sub-section (1) may, pending the decision of the High Court thereon either commit the accused to jail or release him on bail to appear when called upon. 5. (2) Any Court making a reference to the High Court under sub-section (1) may, pending the decision of the High Court thereon either commit the accused to jail or release him on bail to appear when called upon. 5. A plain reading of Section 432 (1) indicates that the court is required to make a reference only if it is satisfied that a case pending before it involves a question as to the validity of any Act etc, the determination of which is necessary for the disposal of the case. It is further necessary that the court must also be of the opinion that such Act is invalid or inoperative, but has not been so declared by the concerned High Court or by the Supreme Court. It is, therefore, clear that, first of all, the court must itself be satisfied that a case involves the question as to the validity of an Act and that the declaration of which is necessary for the disposal of the case. There is the further requirement that the court itself must be of the opinion that the Act is invalid, but has not so been declared by the High Court or the Supreme Court. 6. In present case, bare perusal of order under reference of court below, it is evident that reference has been made on the ground that the accused is still suffering from a psychiatric illness, who is not able to speak and understand properly; his father has refused and no nearest kin of the accused has come forward to hand him over to him or them for taking his care and no positive response has come from the government, nor is there any Home for such accused in the District; the random release of the accused without his proper case will not be in his interest as there is likelihood that he may either cause harm to himself or to any other person. 7. This opinion of Sessions Judge does not qualify any of conditions laid down in section 432 Cr.P.C. Because there is express provisions of law with regard to trial of person who is unable to understand the trial and make his defense. Chapter XXXIV of Cr.P.C. deals on the subject. Sections 464 - 475 provide complete procedure in this regard. 8. This opinion of Sessions Judge does not qualify any of conditions laid down in section 432 Cr.P.C. Because there is express provisions of law with regard to trial of person who is unable to understand the trial and make his defense. Chapter XXXIV of Cr.P.C. deals on the subject. Sections 464 - 475 provide complete procedure in this regard. 8. As per section 464 whenever a Magistrate, either in the course of an enquiry or during a trial, has reason to believe that an accused person is incapable of making his defense by reason of unsoundness of mind, he is bound to hold an enquiry into such unsoundness of mind. For the purpose of such enquiry, he is further bound to have the person examined by the Civil Surgeon or such other Medical Officer as the State Government may direct. The Medical officer must then be examined as a witness, and his examination must be reduced to writing. If unsoundness of mind is established to the satisfaction of the Magistrate, a finding to that effect should be recorded, and further proceedings should be stayed. 9. The procedure in a Court of Sessions is slightly different. In terms of section 465 of Cr.P.C., the fact of unsoundness and incapacity are to be tried in the first instance by the Court as the case may be, and there is no specific provision for an examination by a Medical Officer. The trial of the fact of insanity, however, forms part of the trial before the Court, and the Court would ordinarily take the necessary evidence before proceeding to a finding. 10. Either during the examination of the accused by a Medical Officer, or during the enquiry into the fact of insanity, or after the accused has been found to be of unsound mind, and incapable of making his defence, the Magistrate or Court may release the accused on sufficient security being given that he will be- (1) properly taken care of; (2) prevented from doing injury to himself or any other person; and (3) produced before the Court or such other officer as the Court appoints, when required. Accused may be released on security. In terms of section 466 such an order may be passed whether the case is bailable or not. 11. An order for release, however, should not be passed without due regard to the public interest. Accused may be released on security. In terms of section 466 such an order may be passed whether the case is bailable or not. 11. An order for release, however, should not be passed without due regard to the public interest. If the crime of which such a person is accused be an offence against the person, or if there is reason to believe that he has at any time been aggressive, a detailed medical history sheet should in all cases be obtained, and this should be consulted before orders are passed regarding bail. In the event of the lunatic having at any time exhibited a tendency to violence, it is the duty of the Magistrate or Sessions Judge to satisfy himself that a sufficient length of time has elapsed since such manifestations to render a recurrence improbable, that the sureties are in a position to control the actions of the lunatic should they recur. If the case is one in which in the opinion of the Magistrate or Court, bail should not be taken, or if sufficient security is not given, the Magistrate or Court must order the accused to be detained in safe custody in such place and manner as he or it may think fit in terms of section 466(2). The action taken must then be reported to the State Government. This provision enable a Court to send an accused person direct to a Mental Hospital, instead of awaiting the orders of the State Government, as was formerly necessary. But if an order is made for the detention of the accused in a Mental Hospital, this order must be in accordance with any rules which the State Government may have made under the Indian Lunacy Act, 1977. 12. It should be borne in mind; however, that before action is taken under section 466 of the Code, case for the prosecution should be gone into in order to discover whether any prima facie case is made against the accused. In warrant cases instituted on police report, the magistrate shall take into consideration the documents referred to in sub-sections (1) to (3) of section 251-A and give the prosecution and the counsel for the accused an opportunity of being heard. In releasing accused due regard should be paid to public safety. Action to be taken when accused cannot be released on bail. In releasing accused due regard should be paid to public safety. Action to be taken when accused cannot be released on bail. Accused may be sent to Mental hospital in such cases. Proceedings under section 464, 466 can be taken only when a prima facie case is made out by prosecution evidence. When an enquiry has been postponed under sections 464 or 465, the Magistrate or Court may at any time call for the accused of its motion and resume proceeding under section 467. Such action will ordinarily be taken after a reasonable period in all cases when the accused has been released on security. If, however, the accused has been detained in a Mental Hospital, the accused will usually be returned by the authorities under section 473, as soon as he is certified to be capable of making his defence. It should be noted that the orders of a Magistrate or Court for the detention of a criminal lunatic may be varied by the State Government- (i) on a certificate under section 474; (ii) on an application by a friend or relative under section 475. 13. A second class of cases arises when an accused person appears to be of sound mind at the time of enquiry or trial but there is reason to believe that he was of unsound mind at the time of committing the offence with which he is charged. In such cases the Magistrate must proceed to determine the facts with reference to section 84 of the Indian Penal Code. If the Magistrate finds reason to believe that he committed an act, while he was of unsound mind which, but for such unsoundness, would be an offence, the Magistrate should- (1) if he is competent to do so try the case against the accused. (2) if the case is one which should be tried by the Court of Sessions or High Court commit the case for trial by such Court, leaving to that Court to deal with the matter. If the plea is accepted and the accused is acquitted on the ground that although he committed an act which would have constituted an offence if he had been of sound mind; he was insane at the time of committing it, the court cannot order his release but must order him to be detained in safe custody (section 471, Criminal Procedure Code). Final orders for the release or detention of such a prisoner will be finally passed by the State Government under section 474, Criminal Procedure Code. In all cases in which insanity is pleaded or set up as a defense, the Superintendent of the Jail in which the convict is confined should be directed to keep the prisoner under observation and to report the result thereof to the High Court before the date fixed for hearing in that Court. 14. The High Court is not an advisory body and it is not open to any court to refer any question of fact for the opinion, of the High Court. The only provision entitling a trial court to make a reference is the one contained in Section 432 of the Code of Criminal Procedure. Trial court cannot ask High Court to exercise the power vested in it under section 561-A Cr.P.C. and quash the proceeding, especially in murder case without adopting express provision of law. 15. In view of above, this reference is rejected. Trial court to deal the matter according to law.