JUDGMENT : K. V. Jayakumar, J. This Criminal Appeal is preferred against the judgment of the Special Additional Sessions Judge (Marad Cases), Kozhikode dated 09.11.2017 in S.C. No.849/2016. The appellant stood for trial for the offences punishable under Sections 302 and 323 of the Indian Penal Code. 2. The learned Special Additional Sessions Judge convicted and sentenced the accused to undergo imprisonment for life and to pay a fine of Rs.50,000/- under Section 302 IPC, with a default clause. He was also sentenced to pay a fine of Rs.1,000/- under Section 323 IPC, with a default clause. Prosecution case 3. The prosecution allegation is that the accused committed the murder of his mother-in-law, Sarasu, on 09.08.2015 at about 06:30 p.m. by inflicting repeated stab injuries on her chest. The incident occurred in a shed where the accused and his wife, Anisha (PW1), were residing, which was situated at Manassery near Mecherry Shiva Temple, Kozhikode. Registration of Crime and Investigation: 4. PW1 (Anisha) lodged Ext.P1 FIS to Mukkom Police Station. On the basis of Ext.P1, FIS, PW15 (Roy Joseph)), ASI of Police registered Ext.P1(a), FIR. PW18 (A. Premjith) took up the investigation and laid the final report. After completing the preliminary steps, the learned Judicial First Class Magistrate – II, Thamarassery committed the case to the Court of Sessions, Kozhikode. The learned Sessions Judge made over the case to the Special Additional Sessions Court (Marad cases) for trial and disposal. Evidence Tendered 5. To prove the case of the prosecution, 18 witnesses were examined as PWs.1 to 18, and through them, Exts.P1 to P26 were exhibited and marked. MOs.1 to 9 were also identified and marked. From the side of defence, DW1 was examined. Ext.X-1 was marked. The accused denied the incriminating materials put to him under Section 313(1)(b) of the Code of Criminal Procedure (‘the Code’, for the sake of brevity) and maintained his innocence and prayed for leniency as the accused was suffering from a mental disorder. 6. The learned Sessions Judge, after a full-fledged trial, convicted and sentenced the accused as aforesaid. 7. When the matter was taken up for final hearing before this Court on 02.08.2024, this Court directed the learned Sessions Judge to permit the appellant to lead additional evidence to prove his plea of legal insanity, invoking the power of Section 391 of the Code. 7. When the matter was taken up for final hearing before this Court on 02.08.2024, this Court directed the learned Sessions Judge to permit the appellant to lead additional evidence to prove his plea of legal insanity, invoking the power of Section 391 of the Code. The records of the case were sent back to the trial court with a direction to take additional evidence within three months from the date of receipt of the case records. In order to facilitate the recording of additional evidence, the sentence of the appellant was suspended for four months from the date of the order. 8. The learned Sessions Judge has recorded the additional evidence as per the direction of this Court and resubmitted the entire records to this Court along with the additional evidence. The submissions of the learned counsel for the appellant 9. Sri. Nandagopal S. Kurup, and Sri.Abhiram T.K., the learned counsel for the appellants contended that the trial of the accused stands vitiated as the procedure prescribed under Section 328 of the Code with respect to the inquiry and trial of an unsound mind person is not followed. It is pointed out that at the time of the alleged commission of the offence, the accused was insane and he was not aware of the nature and quality of the act, whether it was wrong or contrary to law. 10. The learned counsel would then argue that no investigation was conducted about the unsoundness of the mind of the accused, even though the said fact was brought to the notice of the Investigating Officer. The learned counsel would further submit that even during the first remand of the accused, he was admitted to the Mental Hospital, Kozhikode. The learned Magistrate, during the committal proceedings, was aware of the unsoundness of mind of the accused. But the proceedings as per Chapter XXV of the Code were not strictly complied with by the committal Magistrate. The learned counsel for the appellant submitted that the committal of the case without complying with the relevant provisions of the Code itself is vitiated and illegal and therefore, the subsequent trial is also vitiated. 11. The learned counsel has placed reliance on the dictums laid down in Aji @ Ajith Kumar v. State of Kerala , [2013 KHC 29] , Dr. 11. The learned counsel has placed reliance on the dictums laid down in Aji @ Ajith Kumar v. State of Kerala , [2013 KHC 29] , Dr. Jai Shankar (Lunatic) through Vijay Shankar brother guardian v. State of H.P. , [1973 KHC 645] and Mariyappan v. State of Kerala , [2025 KHC OnLine 673] , in order to substantiate his contention that the committal of the appellant is vitiated for want of enquiry by the learned Magistrate under Section 328 of the Code. The submissions of the learned Public Prosecutor 12. Adv. Ambikadevi, the Special Government Pleader, would submit that the appellant ought to have raised such a plea either at the committal stage or during the trial stage. The appellant, somehow, wants to set aside the conviction and sentence imposed against him by stating one reason or the other. The belated plea of insanity and lunacy could not be entertained by this Court at this appellate stage. Reliance was also placed in the judgment of Jaison v. State of Kerala , [2016 KHC 121] 13. When the matter again came up for final hearing before us, after the recording of the additional evidence on 09.07.2025, the learned counsel for the appellant submitted that the learned Magistrate had failed to carry out an exercise in terms of Section 332 of the Code and to consider whether the appellant was capable of facing trial. 14. On 09.07.2025, this Court has passed a detailed order calling for the records of the Judicial First Class Magistrate Court–II, Thamarassery in Crime No.386/2015, in order to ascertain whether the procedure contemplated under Chapter XXV of the Code has been complied with or not. The relevant paragraphs of the said order are extracted hereunder: “3. Sri. Nandagopal S. Kurup submitted that the learned Magistrate has failed to carry out an exercise in terms of Section 332 of the Cr.P.C. and consider whether the appellant was capable of facing trial. It is against the statutory mandate that the appellant was committed to the Court of Session by order dated 07.07.2016. The learned counsel urges that, in the committal order dated 07.07.2016, the learned Magistrate has not mentioned the action taken by the learned Magistrate under Section 328 of the Cr.P.C. 4. It is against the statutory mandate that the appellant was committed to the Court of Session by order dated 07.07.2016. The learned counsel urges that, in the committal order dated 07.07.2016, the learned Magistrate has not mentioned the action taken by the learned Magistrate under Section 328 of the Cr.P.C. 4. Section 332 of the Code mandates the procedure to be followed when a person, who has been prima facie found to be of unsound mind under Section 328 or Section 329 of the Cr.P.C., is again brought before the Magistrate or Court. The section requires the court to consider and satisfy itself as to whether the accused is now capable of making his defence. If, upon consideration of the material on record and application of judicial mind, the court comes to the conclusion that the accused is indeed capable of making his defence, the inquiry or trial may proceed. However, if the Magistrate or Court finds that the accused continues to be incapable of making his defence, the law mandates that the procedure under Section 328 or Section 329 of the Cr.P.C. must again be followed. Should the court, after such further inquiry, find that the accused remains of unsound mind and is consequently incapable of defending himself, it is duty-bound to proceed in accordance with the provisions of Section 330 of the Cr.P.C. 5. We have perused the case records and found that only proceedings from 10.05.2016 are available in the case bundle. It appears that the final report in the aforesaid case was submitted on 16.04.2016. 6. In that view of the matter, to ascertain whether the procedure contemplated under Chapter XXV has been complied with, the following records are required. a) Proceedings sheet/records in Crime No 386 of 2015 of the Judicial Magistrate of the First Class-II, Thamarassery, including all connected applications and orders. b) Proceeding sheet/records in CP No. 23 of 2016 on the file of the Judicial Magistrate of the First Class-II, Thamarassery, including all connected applications and orders. The Registry shall immediately communicate the order and place the records before this Court at the earliest, as the case is included in the hearing list.” 15. b) Proceeding sheet/records in CP No. 23 of 2016 on the file of the Judicial Magistrate of the First Class-II, Thamarassery, including all connected applications and orders. The Registry shall immediately communicate the order and place the records before this Court at the earliest, as the case is included in the hearing list.” 15. Pursuant to the order of this Court, the learned Special Additional Sessions Judge has submitted a report dated 23.07.2025 stating that the entire records in Crime No.386 of 2015 and C.P. No.23 of 2016 were already forwarded to this Court and no other records are available in the Special Court. The report of the Special Additional Sessions Judge (Marad Cases), Kozhikode reads thus: “As per reference cited, this court was directed to Submit proceeding Sheets/Records in Cr.No. 386/15 and C.P 23/2016, including all connected applications and orders of JFCM- II, Thamarassery. It is most respectfully submitted that, all the records received from JFCM II, Thamarassery to the Sessions Court and forwarded to this court for trial had been re-transmitted to the Sessions Court after the disposal of the Sessions case No. 849/16. Thereafter, the Honourable High Court had sent the records to this court by virtue of the order in Crl.Appeal 1242/2019 dated 02.08.2024. In compliance of the said order, this court had recorded additional evidence and re-submitted the entire records back to the Honourable High Court alongwith the additional evidence so recorded. It is most respectfully submitted that the records referred to the order of the Honourable High Court in Crl. Appeal 1249/20219 or any other records connected with the above case is not available with this court.” 16. The learned counsel for the appellant submitted that the appellant had committed the murder of his mother-in-law due to his insanity. During the relevant time, due to the unsoundness of his mind, he was incapable of knowing the nature of the act, or that he was doing either wrong or contrary to law. 17. The learned counsel would submit that the alleged incident took place on 09.08.2015. The appellant was arrested on the very next day. On 13.08.2015, the appellant was admitted to the Government Mental Health Centre, Kozhikode. Vide Order dated 17.08.2015, the learned Magistrate, Thamarassery directed the Superintendent of the Special Sub Jail, Kozhikode, to obtain and file a report regarding the mental condition of the accused at the earliest. The appellant was arrested on the very next day. On 13.08.2015, the appellant was admitted to the Government Mental Health Centre, Kozhikode. Vide Order dated 17.08.2015, the learned Magistrate, Thamarassery directed the Superintendent of the Special Sub Jail, Kozhikode, to obtain and file a report regarding the mental condition of the accused at the earliest. Ext.X-1 is the treatment records of the accused, which would reveal that the accused underwent treatment in the Mental Health Centre till 06.11.2015. 18. On 28.09.2015, Dr. Anupama Bhargavan, reported before the learned Magistrate that the accused was suffering from mixed personality disorder. By communication dated 03.11.2015, the Superintendent of Government Mental Health Centre, Kozhikode informed the Superintendent of Special Sub Jail, Kozhikode that the accused had improved his mental condition and he could be taken back to the jail. 19. On hearing the rival submissions, the following issues arise for our consideration: i. Whether the committal proceedings in C.P. No.23 of 2016 are vitiated for the non-compliance of the mandatory provisions contemplated under Chapter XXV of Cr.P.C.? ii. If the committal proceeding itself is bad or vitiated, what is the legal sanctity of the trial, conviction, and sentence? The Analysis 20. The main challenge in this appeal is that the accused was an insane person at the time of the alleged commission of the offence and thereafter. But, the jurisdictional Magistrate committed the case to the Court of Sessions without conducting an inquiry under Chapter XXV of Cr.P.C. The learned counsel for the appellant submitted that the committal proceedings itself is vitiated and ‘non est’ in the eye of the law. The subsequent trial by the Sessions Court finding of guilt, conviction and imposition of sentence are also legally unsustainable. Before we proceed further, it would be apposite to refer to Sections 328 to 333 of the Code. “328. Procedure in case of accused being lunatic. The subsequent trial by the Sessions Court finding of guilt, conviction and imposition of sentence are also legally unsustainable. Before we proceed further, it would be apposite to refer to Sections 328 to 333 of the Code. “328. Procedure in case of accused being lunatic. —(1) When a Magistrate holding an inquiry has reason to believe that the person against whom the inquiry is being held is of unsound mind and consequently incapable of making his defence, the Magistrate shall inquire 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. (1-A) 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: 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; and (b) a faculty member in psychiatry in the nearest medical college. (2) Pending such examination and inquiry, the Magistrate may deal with such person in accordance with the provisions of section 330. (3) If such Magistrate is informed that the person referred to in sub-section (1-A) is a person of unsound mind, the Magistrate shall further determine whether the unsoundness of mind renders the accused incapable of entering defence and if the accused is found so incapable, the Magistrate 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 he finds that no prima facie case is made out against the accused, he shall, instead of postponing the enquiry, discharge the accused and deal with him in the manner provided under section 330. Provided that if the Magistrate 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 proceeding for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused, and order the accused to be dealt with as provided under section 330. (4) If such Magistrate is informed that the person referred to in sub-section (1-A) is a person with mental retardation, the Magistrate shall further determine whether the mental retardation renders the accused incapable of entering defence, and if the accused is found so incapable, the Magistrate shall order closure of the inquiry and deal with the accused in the manner provided under section 330.” 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. (1-A) 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; and (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 (1-A) 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. 330 . Release of person of unsound mind pending investigation or trial. —(1) Whenever a person if found under section 328 or section 329 to be incapable of entering defence by reason of unsoundness of mind or mental retardation, the Magistrate or Court, as the case may be shall, whether the case is one in which bail may be taken or not, order release of such person on bail: Provided that the accused is suffering from unsoundness of mind or mental retardation which does not mandate in-patient treatment and a friend or relative undertakes to obtain regular out-patient psychiatric treatment from the nearest medical facility and to prevent from doing injury to himself or to any other person. (2) If the case is one in which, in the opinion of the Magistrate or Court, as the case may be, bail cannot be granted or if an appropriate undertaking is not given, he or it shall order the accused to be kept in such a place where regular psychiatric treatment can be provided, and shall report the action taken to the State Government: Provided that no order for the detention of the accused in a lunatic asylum shall be made otherwise than in accordance with such rules as the State Government may have made under the Mental Health Act, 1987 (14 of 1987).(3) Whenever a person is found under section 328 or section 329 to be incapable of entering defence by reason of unsoundness of mind or mental retardation, the Magistrate or Court, as the case may be, shall keeping in view the nature of the act committed and the extent of unsoundness of mind or mental retardation, further determine if the release of the accused can be ordered: Provided that - (a) if on the basis of medical opinion or opinion of a specialist, the Magistrate or Court, as the case may be, decide to order discharge of the accused, as provided under section 328 or section 329, such release may be ordered, if sufficient security is given that the accused shall be prevented from doing injury to himself or to any other person; (b) if the Magistrate or Court, as the case may be, is of opinion that discharge of the accused cannot be ordered, the transfer of the accused to a residential facility for persons of unsound mind or mental retardation may be ordered wherein the accused may be provided care and appropriate education and training. 331. Resumption of inquiry or trial. —(1) Whenever an inquiry or a trial is postponed under section 328 or section 329, the Magistrate or Court, as the case may be, may at any time after the person concerned has ceased to be of unsound mind, resume the inquiry or trial and require the accused to appear or be brought before such Magistrate or Court. —(1) Whenever an inquiry or a trial is postponed under section 328 or section 329, the Magistrate or Court, as the case may be, may at any time after the person concerned has ceased to be of unsound mind, resume the inquiry or trial and require the accused to appear or be brought before such Magistrate or Court. (2) When the accused has been released under section 330, and the sureties for his appearance produce him to the officer whom the Magistrate or Court appoints in this behalf, the certificate of such officer that the accused is capable of making his defence shall be receivable in evidence. 332. Procedure on accused appearing before Magistrate or Court. —(1) If, when the accused appears or is again brought before the Magistrate or Court, as the case may be, the Magistrate or Court considers him capable of making his defence, the inquiry or trial shall proceed. (2) If the Magistrate or Court considers the accused to be still incapable of making his defence, the Magistrate or Court shall act according to the provisions of section 328 or section 329, as the case may be, and if the accused is found to be of unsound mind and consequently incapable making his defence, shall deal with such accused in accordance with the provisions of section 330. 333. When accused appears to have been of sound mind. —When the accused appears to be of sound mind at the time of inquiry or trial, and the Magistrate is satisfied from the evidence given before him that there is reason to believe that the accused committed an act, which, if he had been of sound mind, would have been an offence, and that he was, at the time when the act was committed, by reason of unsoundness of mind, incapable of knowing the nature of the act or that it was wrong or contrary to law, the Magistrate shall proceed with the case, and, if the accused ought to be tried by the Court of Session, commit him for trial before the Court of Session.” 21. In Aji @ Ajith Kumar (supra), this Court held that committal by the jurisdictional Magistrate without conducting an inquiry and arriving at a satisfaction that the accused was mentally fit to stand trial is void. Paragraph No.8 of Aji @ Ajith Kumar (supra) reads thus: “8. In Aji @ Ajith Kumar (supra), this Court held that committal by the jurisdictional Magistrate without conducting an inquiry and arriving at a satisfaction that the accused was mentally fit to stand trial is void. Paragraph No.8 of Aji @ Ajith Kumar (supra) reads thus: “8. The records reveal that at least on 06/06/2005, the learned Magistrate was made aware that the appellant is being treated for mental illness. Therefore, the Magistrate has decided to get a report from the surgeon whether the accused is fit to stand for trial before the case is committed to the Sessions Court. It could only be under such circumstances, though a certificate was received from the psychiatrist, who was treating the appellant at the District Hospital, Kannur that the illness of the accused is then under control and the treatment is being continued, the learned Magistrate sought a report from the doctor on the mental fitness of the accused to stand for trial. Still, in spite of several adjournments, no certificate was forwarded by the concerned doctor. Still the case was committed. The learned Magistrate did not conduct an inquiry as provided under S.328 of the Code. The calling for a report from the doctor by itself is not an inquiry as contemplated under S.328. The procedure adopted was to call for a certificate from the doctor on the mental condition of the accused to ascertain whether he was fit to stand for trial so as to commit the case to the Sessions Court. But the learned Magistrate did not receive a certificate from the doctor that appellant is fit to stand for trial, before the case was committed on 22/08/2005. The proceedings of the learned Magistrate also establish that the learned Magistrate did not record his satisfaction that the appellant was fit to stand for trial. On the materials, it can only be found that, when the appellant was committed to the Sessions Court by order dated 22/08/2005, the learned Magistrate did not conduct an inquiry and did not get satisfied that appellant was mentally fit to stand for trial, in spite of the fact that the Magistrate had earlier found that appellant was having mental illness and decided to get a report to ascertain whether he was fit to stand for trial. If that be so, the order of committal is definitely vitiated. If that be so, the order of committal is definitely vitiated. Learned Magistrate could have committed the case to the Sessions Court, when it was brought to his notice that appellant was being treated for mental illness, only after conducting an inquiry under S.328 of the Code and finding that appellant is fit to stand for trial. As the case was committed in violation of the specific provisions under S.328 of the Code, it can only be found that the order of committal is void. The fact that the learned counsel appearing for the appellant or the appellant himself did not bring to the notice of the learned Sessions Judge that appellant is suffering from mental illness and consequently not fit to stand for trial, cannot validate the order of committal which is vitiated, by a certificate obtained from the medical board constituted, as directed by the learned Sessions Judge, after completion of the examination of the prosecution witnesses. If that be so, the entire trial by the learned Sessions Judge is vitiated, as a valid committal order is sine qua non for taking cognizance and the trial of the appellant by the learned Sessions Judge.” (emphasis supplied) 22. In Dr. Jai Shankar (Lunatic) through Vijay Shankar brother guardian (supra), the Hon’ble Apex Court opined that if the Magistrate has failed to make an inquiry as to the unsoundness of mind of the accused under Section 328 of the Code, the committal proceedings and the trial are vitiated. In Mariyappan (supra), this Court has again reiterated the same principle. 23. Now, we shall proceed to examine the available records in Crime No.386 of 2015 of Mukkom Police Station and C.P. No.23 of 2016 before the Judicial First Class Magistrate Court–II, Thamarassery, in order to ascertain whether the learned Magistrate has complied with the mandatory provisions of Chapter XXV of the Code. 24. According to the prosecution, the alleged incident occurred on 09.08.2015. The accused, Ajith @ Ajith Kumar was arrested on 10.08.2015 and he was produced before the Judicial First Class Magistrate Court–II, Thamarassery on 11.08.2015. The records would further reveal that he was remanded to judicial custody for 14 days. 25. 24. According to the prosecution, the alleged incident occurred on 09.08.2015. The accused, Ajith @ Ajith Kumar was arrested on 10.08.2015 and he was produced before the Judicial First Class Magistrate Court–II, Thamarassery on 11.08.2015. The records would further reveal that he was remanded to judicial custody for 14 days. 25. On 17.08.2015, the Superintendent of Special Sub Jail, Kozhikode has submitted an application before the Judicial First Class Magistrate Court-II, Thamarassery seeking permission to admit and treat the accused in the Government Mental Health Centre, Kozhikode, on the basis of a reference from the Government General Hospital, Kozhikode, wherein he was treated. The order of the Judicial First Class Magistrate Court-II, Thamarassery, dated 17.08.2015, reads as follows: “The Superintendent, Special Sub Jail, Kozhikode has filed a petition seeking permission to admit and treat accused Ajith Kumar, S/o Sankaran who was referred to Govt. Mental Health Center, Kozhikode from the Kozhikode Govt. General hospital and admitted therein. Perused the petition. I am satisfied that this petition has to be allowed. Hence permission is granted to admit and treat the accused Ajith Kumar s/o Sankaran who was referred to Govt. Mental Health Center, Kozhikode. The Superintendent, Special Sub Jail, Kozhikode is directed to obtain and file report regarding mental condition of the accused at the earliest.” 26. On 25.08.2015, the Superintendent of Special Sub Jail, Kozhikode, submitted before the learned Magistrate that the accused in Crime No.386 of 2015 of Mukkom Police Station had been admitted to the Government Health Centre, Kozhikode. On 06.10.2015, the Superintendent Special Sub Jail, Kozhikode, reported that since the accused is undergoing treatment at the Government Mental Health Centre, Kozhikode, he could not be produced before the Court. 27. On 23.11.2015, the Superintendent of Special Sub Jail, Kozhikode has submitted a report before the Judicial First Class Magistrate Court-II, Thamarassery, stating that the accused, Ajith Kumar, had undergone treatment at the Mental Health Centre, Kozhikode, from 13.08.2015 and since he has recovered, he has been taken back to the jail. 28. On going through the records of C.P. No.23/2016, it is discernible that the appellant was treated as an inpatient at the Government Mental Health Centre, Kozhikode, for lunacy for about three months immediately after his arrest. Dr. Anupama Bhargavan submitted a report on 28.09.2015, wherein it is stated that the accused was having Mixed Personality Disorder. 29. On 01.01.2016, the accused was enlarged on bail. Dr. Anupama Bhargavan submitted a report on 28.09.2015, wherein it is stated that the accused was having Mixed Personality Disorder. 29. On 01.01.2016, the accused was enlarged on bail. Thereafter, he was committed to the Court of Sessions vide order dated 07.07.2016 in C.P. No.23/2016. The committal order reads thus: “This case is taken cognizance upon a final report filed by the Inspector of Police, Koduvally police station alleging commission of offence punishable u/s. 324 and 302 of the Indian Penal Code. 2. Prosecution case in short is as follows: On 9/8/2015 at 18.30 hours, accused stabbed one Sarasu, his mother-in-law with a knife under her left axila and below the left shoulder on her back with intention to kill her at her residence at Manasseri near Mecheri Sivakshethram in Thazhekode village, thus she sustained severe injuries and thereafter succumbed to her injuries. Hence accused is alleged to have committed the offences punishable u/s. 324 and 302 of the Indian Penal Code. 3. Accused was arrested and remanded to judicial custody on 11/8/15. He was released on bail on 1/1/2016. 4. After investigation, the investigating officer filed final report. On appearance of the accused, he was permitted to continue on earlier bail bond. Copies of all prosecution records were furnished to the accused. On going through the materials produced, I am satisfied that this case is exclusively triable by a Court of Session. Hence the following orders are passed. 1. This case is committed to the Hon'ble Sessions court u/s.209(a) of Cr.P.C. 2. Submit records, documents, and articles if any, to the Sessions court. 3. Notify the Public Prosecutor about committal of the case. 4. Accused is directed to appear before the Sessions court as and when directed. 30. On going through the records of this case, it is seen that the jurisdictional Magistrate has committed the case to the Court of Sessions without conducting an inquiry as contemplated under Section 328 of the Code. 31. Section 328 of the Code provides the procedure to be followed in case of the accused being a lunatic. 30. On going through the records of this case, it is seen that the jurisdictional Magistrate has committed the case to the Court of Sessions without conducting an inquiry as contemplated under Section 328 of the Code. 31. Section 328 of the Code provides the procedure to be followed in case of the accused being a lunatic. Under sub-section (1), when a Magistrate holding an enquiry has reason to believe that the person against whom the inquiry is to be held, is of unsound mind 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 (2) provides that pending such examination and inquiry, the Magistrate may deal with that person in accordance with the provisions of S.330 of the Code. Sub-section (3) provides that if the Magistrate is of the opinion that the person referred to in sub-section (1) is a person of unsound mind and consequently, incapable of making his defence, he shall record a finding to that effect and shall postpone further proceedings in the case. 32. It is obvious on a plain reading of the provision that the legislature did not want a person of unsound mind and one who is incapable of making his defence to be tried merely because an officer has chosen to lay a charge against him. If the accused is actually of unsound mind, he may not be able to effectively defend himself and is thrown at the mercy of the court, whose duty is to offer the accused all reasonable assistance. The first thing and perhaps the most important thing is to place the prisoner suspected of being of unsound mind under medical observation promptly, so that when the case comes up for trial, there would be reliable medical evidence of the state of mind of the accused. The evidence of the Civil Surgeon whose services were sought by the learned Magistrate cannot be regarded as the evidence produced by the prosecution. The evidence of the Civil Surgeon whose services were sought by the learned Magistrate cannot be regarded as the evidence produced by the prosecution. It is the duty of the Magistrate to examine the Civil Surgeon and take such other evidence as is available to determine the state of mind of the accused. 33. On a careful evaluation of the materials on record, we are of the considered opinion that the appellant had been denied a fair trial in view of the total non-compliance of the procedure contemplated under Section 332 of the Code. In that view of the matter, we hold that the order of committal passed by the learned Magistrate is vitiated. If the order of committal is bad, the trial held consequent thereto also is vitiated, and the conviction arrived at cannot be sustained. In that view of the matter, we have no other go but to allow this appeal. 34. Resultantly, the judgment passed by the learned Sessions Judge, finding the appellant guilty of the offence under Sections 302 and 323 of the IPC is overturned. The committal order passed by the learned Magistrate in C.P. No. 23 of 2016 on the file of the Judicial First Class Magistrate Court-II, Thamarassery, is also set aside. The matter is remitted back to the learned Judicial First Class Magistrate- II, Thamarassery, for fresh consideration in accordance with law. The learned Magistrate shall conduct an inquiry under the relevant provisions of the Code and satisfy that the appellant was fit to stand trial and capable of making his defence before committing the case. The learned Magistrate shall conduct an inquiry under Section 328 (1) of the Code and if it is found that, because of unsoundness of mind, the accused is incapable of making his defence, further proceedings shall be postponed after recording a finding to that effect. The learned Magistrate shall then decide whether the accused is to be released under Section 330 of the Code. In that event, the proceedings can be resumed only as provided under S.331 of the Code. If it is found on inquiry that the appellant is of sound mind and that he is capable of making his defence in the case, the learned Magistrate shall commit the case to the Court of Sessions. This appeal will stand allowed subject to the above observations. If it is found on inquiry that the appellant is of sound mind and that he is capable of making his defence in the case, the learned Magistrate shall commit the case to the Court of Sessions. This appeal will stand allowed subject to the above observations. The Registry is directed to forward the records back to the committal court forthwith.