JUDGMENT : S.K. MISHRA, J. 1. In this Reference under Section 366 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’ for brevity), and the connected Criminal Appeal No. 441 of 2021, the legality of conviction and sentence of death recorded by the learned Additional Sessions Judge, Tehri Garhwal, New Tehri, in Sessions Trial No. 02 of 2015, as per the judgment dated 21.08.2021, is examined, for confirmation or otherwise of the death sentence. The conviction itself is challenged by the condemned prisoner in the connected criminal appeal. 2. The facts of the case are that the father of the appellant–condemned prisoner submitted a written report on 13.12.2014 that the appellant has committed murder of his mother, brother and sister-in-law by means of a sword (a sharp edged weapon). On such report, first information report was registered; investigation was taken up, and on completion of investigation, charge-sheet was submitted against the appellant. 3. Keeping in view the peculiarity of the case, and the serious contention raised by the learned Senior Counsel Mr. Vashistha, we are of the opinion that there is no need to go into the question of facts and appreciation of evidence at this stage. Rather, we confine ourselves to the argument advanced by the learned Senior Counsel, who has been appointed as Amicus Curiae by the Court, to come to a just and proper finding. 4. The learned Senior Counsel took us through the evidence of PW-13 Dr. Vinay Sharma, PW-14 Dr. Mahesh Kumar Khaitan, PW-15 Dr. Ravi Gupta and PW-16 S.C. Godiyal and Exhibit A-36, page 48; Exhibit A-34, page 46; Exhibit A-39, page 54 and Exhibit A-38, page 53 of the paper book and contended that the defence has taken the plea of insanity as available to him under Section 84 of the Indian Penal Code, 1880 (hereinafter referred to as ‘the Penal Code’ for brevity). It is contended by the learned Senior Counsel that in the entire discussion regarding this aspect of the case, the learned Additional Sessions Judge failed to appreciate the fact that during course of trial the appellant was found to be suffering from mental illness, and for that purpose the provisions of Section 329 of the Code as well as Section 105 of the Mental Healthcare Act, 2017 have not been complied with, and the learned Additional Sessions Judge disbelieved the plea of insanity, and went on to convict the appellant under Section 302 of the Penal Code, and sentenced him to death. He further contended that proper procedure should have been followed, and for compliance of those provisions, the matter should be remanded back to the learned trial court by setting aside the judgment and order passed by the learned Additional Sessions Judge. 5. The learned Deputy Advocate General Mr. Virk would argue that the evidence of PW-15 Dr. Ravi Gupta, and the effect of Exhibit A-38 appearing at page 53 of the paper book, has not been discussed in the impugned judgment. In other words, Mr. Virk fairly conceded that the judgment lacks clarity on certain aspects such as plea of insanity, and insanity during course of trial. 6. Before we discuss the evidences available on record, it is appropriate to take note of the provisions of law as contained in the Code. Section 329 of the Code, prescribes the procedure in case of person of unsound mind tried before Court. The same reads as under: 329. Procedure in case of person of unsound mind tried before Court: (1) If at the trial of any person before a Magistrate or Court of Session, it appears to the Magistrate or Court that such person is of unsound mind and consequently incapable of making his defence, the Magistrate or Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Magistrate or Court, after considering such medical and other evidence as may be produced before him or it, is satisfied of the fact, he or it shall record a finding to that effect and shall postpone further proceedings in the case. (1A) If during trial, the Magistrate or Court of Sessions finds the accused to be of unsound mind, he or it shall refer such person to a psychiatrist or clinical psychologist for care and treatment, and the psychiatrist or clinical psychologist, as the case may be shall report to the Magistrate or Court whether the accused is suffering from unsoundness of mind: Provided that if the accused is aggrieved by the information given by the psychiatric or clinical psychologist, as the case may be, to the Magistrate, he may prefer an appeal before the Medical Board which shall consist of: (a) head of psychiatry unit in the nearest government hospital. (b) a faculty member in psychiatry in the nearest medical college. (2) If such Magistrate or Court is informed that the person referred to in sub-section (1A) is a person of unsound mind, the Magistrate or Court shall further determine whether unsoundness of mind renders the accused incapable of entering defence and if the accused is found so incapable, the Magistrate or Court shall record a finding to that effect and shall examine the record of evidence produced by the prosecution and after hearing the advocate of the accused but without questioning the accused, if the Magistrate or Court finds that no prima facie case is made out against the accused, he or it shall, instead of postponing the trial, discharge the accused and deal with him in the manner provided under section 330: Provided that if the Magistrate or Court finds that a prima facie case is made out against the accused in respect of whom a finding of unsoundness of mind is arrived at, he shall postpone the trial for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused. (3) If the Magistrate or Court finds that a prima facie case is made out against the accused and he is incapable of entering defence by reason of mental retardation, he or it shall not hold the trial and order the accused to be dealt with in accordance with section 330. 7. (3) If the Magistrate or Court finds that a prima facie case is made out against the accused and he is incapable of entering defence by reason of mental retardation, he or it shall not hold the trial and order the accused to be dealt with in accordance with section 330. 7. Thus, this provision lays down a responsibility on the part of the court of Sessions (we are not referring to the Magistrate because the case involves a trial by the Court of Sessions) to act in a particular way when it appears that a person brought before him, accused of an offence triable by a court of Sessions, is of unsound mind and consequently incapable of making his defence. The Court has to, at the first instance, try the fact of such unsoundness and incapability. If the Court after considering the medical and other evidence as may be produced before him, is satisfied of the fact, he shall record a finding to that effect and shall postpone further proceedings in the case. It is further required that the court of Sessions after recording whether the accused is of unsound mind or not, shall further determine whether the unsoundness of mind renders him incapable of entering defence, and if the accused is found so incapable, the Magistrate or Court shall record a finding to that effect and shall examine the record of evidence produced by the prosecution and after hearing the advocate of the accused but without questioning the accused, the Court finds, prima-facie, that no case is made out, then the Court shall instead of postponing the trial, discharge the accused. 8. Thus, a very onerous responsibility is on the Court whenever any person is found, prima facie, to be suffering of unsoundness of mind. Sub-Section (1A) of Section 329 of the Code further provides that if the Court of Sessions finds the accused to be of unsound mind, he shall refer such a person to a psychiatrist or clinical psychologist for care and treatment, and the psychiatrist or clinical psychologist, as the case may be, shall report to the Court whether the accused is suffering from unsoundness of mind. Even, Sub-section (1A) of Section 329 of the Code provides for an appeal to a medical Board consisting of head of the psychiatry unit as well as a faculty member of said department. 9. Even, Sub-section (1A) of Section 329 of the Code provides for an appeal to a medical Board consisting of head of the psychiatry unit as well as a faculty member of said department. 9. Thus, it is apparent that the Parliament in its wisdom has created safeguards for persons who may be suffering from mental illness, and as such, they are incapable of defending themselves. So a particular procedure has been prescribed by the Court itself. 10. Section 105 of the Mental Healthcare Act, 2017, deals with the question of mental illness in judicial process. The same reads as under: 105. Question of mental illness in judicial process - If during any judicial process before any competent court, proof of mental illness is produced and is challenged by the other party, the court shall refer the same for further scrutiny to the concerned Board and Board shall, after examination of the person alleged to have a mental illness either by itself or through a committee of experts, submits its opinion to the court. The definition Clause (d) provides that Board means the Mental Health Review Board constituted by the State Authority under Sub-section (1) of Section 73 in such manner as may be prescribed. 11. In this case, apparently the learned Additional Sessions Judge neither has followed the provisions of Section 329 of the Code, nor made any resort to Section 105 of the Mental Healthcare Act. This aspect is not disputed by any of the learned counsel appearing in this case. 12. At this stage, we have to take into consideration the materials available on record regarding the mental illness of the appellant-condemned prisoner. 13. First such document is dated 14.12.2014, which has been marked as Exhibit A-36, appearing at page 48 of the paper book. It is apparent that the Medical Officer, District Hospital Baurari, New Tehri opined that the appellant is physically fit but mental illness may be present, so referred to clinical psychologist for evaluation of his illness. Inspite of such recommendation, the appellant was never evaluated by the psychiatrist or the clinical psychologist for there is a specific recommendation of the Medical Officer to refer the appellant for clinical psychologist. Inspite of such recommendation, the appellant was never evaluated by the psychiatrist or the clinical psychologist for there is a specific recommendation of the Medical Officer to refer the appellant for clinical psychologist. The second document appearing at page 46 of the paper book, which has been marked as Exhibit A-34, shows that the doctor attending the appellant could not conclude whether a major psychiatric disorder is found in the appellant. However, for definite opinion of psychological assessment, the doctor referred the case to a higher center, which was again not complied or done by any of the authorities or the court of Sessions. 14. The next document which is available on record is dated 11.12.2016, appearing at page 54 of the paper book, marked as Exhibit A-39, which shows that the appellant was admitted in the hospital from 01.02.2016 to 11.02.2016 for treatment of mental illness. This report (Exhibit A-39) has been prepared by PW-16 Dr. S.C. Godiyal, Professor and Head of the Department, Department of Psychiatry. He has stated that he could not reach to any diagnostic conclusion. Hence, he did not initiate any treatment. This witness further suggested that the behaviour history before the arrest of the appellant from his close relative and neighbours is required for proper management. The effect of Exhibit A-39, and the evidence of PW-16 Dr. S.C. Godiyal has never been discussed by the learned Additional Sessions Judge in the judgment as conceded by the learned Deputy Advocate General, and also submitted by the learned Senior Counsel appearing for the appellant-condemned prisoner. 15. The most important document, which is part of the record is Exhibit A-38, which is a report prepared by a Board of the All India Institute of Medical Sciences, Rishikesh consisting of five Experts from the aforesaid Medical Institute. Dr. Ravi Gupta has been examined as PW-15. In his examination-in-chief, this witness stated on oath that the appellant was produced before them, i.e. the Board, for assessment of mental illness of the appellant. He further stated that the team examined the appellant especially in respect of his mental state. In course of such examination they found the appellant to be suffering from psychotic illness, and continued his previous treatment, and directed for follow of action. This witness was questioned by the Court itself wherein different symptoms shown by the appellant were stated to by the witness. In course of such examination they found the appellant to be suffering from psychotic illness, and continued his previous treatment, and directed for follow of action. This witness was questioned by the Court itself wherein different symptoms shown by the appellant were stated to by the witness. Answering to the court’s query, the witness stated that as per his assessment, he was of the opinion that the appellant was able to understand the consequences of his actions on 20.03.2021. This witness assessed that the appellant has ability of understanding the trial and decision in the Court. However, PW-15 further added that on 29.09.2018, they were directed by the Court to examine the illness of the appellant and to treat him. This witness further stated that the medial team did not assess the behavioural study of the appellant or his capability to understand what he was doing as the same was not within the scope of the enquiry. In the cross-examination the witness stated that he found the appellant to be suffering from mental illness. He further stated that he could not assess whether such illness is continuing since last 4-5 years. 16. PW-16 has stated that the appellant was admitted from 26.03.2016 to 11.05.2016 in the hospital. On the second admission to the hospital, they found that the appellant was suffering from Psychosis-N-O-S (F-29). He in the cross-examination also stated that during course of the treatment he found the appellant to be incapable of understanding the consequences of his actions. 17. Thus, it is apparent from the record that there is enough material on record to be satisfied, prima facie, that the appellant was suffering from mental illness at the time of trial. In that fact situation, the operation of Section 329 of the Code as well as Section 105 of the Mental Healthcare Act come into play. In such a situation, the Court should have followed the procedure laid down under Section 329 of the Code read with Section 105 of the Mental Healthcare Act. As the learned Trial Judge has not followed the procedure prescribed, the entire trial is vitiated, and hence, the appeal has to be allowed. 18. It is also seen from the judgment passed by the learned Additional Sessions Judge that she confined herself only to decide whether on the date of the incident the appellant was suffering from any mental health issues. 18. It is also seen from the judgment passed by the learned Additional Sessions Judge that she confined herself only to decide whether on the date of the incident the appellant was suffering from any mental health issues. In fact, when such an issue is raised, the Court has to apply its mind on two aspects, viz. whether at the time of the trial, the appellant is suffering from any mental illness, or is he in a fit mental condition at the time of trial, so that he can understand the proceeding and take steps to defend himself? The other issue is that whether the appellant was mentally ill at the time of the commission of the crime, and for that reason he was not able to understand the consequences of his actions. In the first situation, the provisions of Section 329 and 330 of the Code and Section 105 of the Mental Healthcare Act has to be resorted to, and the court of Sessions should first make an enquiry and try the issue of mental illness of the appellant first, and if she is satisfied, then she should refer the matter to a psychiatrist or to a clinical psychologist, and if it is found that the appellant is suffering from any mental illness, the procedure laid down under Sub-Section (2) of Section 329 of the Code should be followed. In this case that has not been done by the learned Additional Sessions Judge. She has not examined this aspect and proceeded with the criminal trial in the line of the provisions of Section 329 of the Code as well as Section 105 of the Mental Healthcare Act. She has also not discussed the evidence of the very important witness, i.e. PW-15 and the effect of Exhibit A-38, wherein the Medical Board has clearly stated that the appellant is suffering from “schizophrenia”, but he is showing symptoms of improvement on treatment. 19. In that view of the matter, we are of the opinion that the matter should be reconsidered by the learned trial judge from the stage when it was first brought to her notice that the appellant is suffering from mental illness. 20. In the result, the appeal is allowed. The judgment of conviction and death sentence are hereby set aside. The death reference is answered accordingly. 20. In the result, the appeal is allowed. The judgment of conviction and death sentence are hereby set aside. The death reference is answered accordingly. The matter is remanded back to the court of learned Additional Sessions Judge, Tehri Garhwal to re-hear the matter by following the observations made by us in the preceding paragraphs of this judgment.