1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R State of Rajasthan Vs. Gani Mohd. S.B.CRIMINAL MISC.PETITION NO.222/2005 arising out of reference made by ACJM, Badi Sadri, Distt.Chittorgarh, u/s.318 CrPC in Cr.Regular Case No.503/1998. Date of Judgment: Feb.19, 2009 P R E S E N T HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.Mahipal Bishnoi, Public Prosecutor. Mr.B.N.Kalla, for accused respondent. REPORTABLE BY THE COURT : 1. This Misc. Petition arises out of the reference made by the learned ACJM, Badi Sadri, Distt.Chittorgarh on 28.1.05 with regard to seeking direction u/s.318 of the Criminal Procedure Code, in 2 short “the Code”, in Cr.Regular Case No.503/98 “State vs. Gani Mohd.” with regard to the judgment & order of sentence passed on 5.2.2001 & 7.2.2001 respectively. 2. Heard learned Public Prosecutor as well as learned counsel appearing for the accused Gani Mohd. 3. Upon perusal of the record of the case and the judgment, it appears that the learned Magistrate has made a reference under Section 318 of the Code on the order of sentence dt.7.2.01 after pronouncement of judgment on 5.2.01. Under Section 318 of the Code, 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 it thinks fit. According to 3 this Section, it applies when, though accused is not of unsound mind but he cannot understand the proceedings. From the order of the learned Magistrate dated 7.2.2001, it appears that the accused is an old man of 60 years; he cannot see from his eyes; he is also deaf & dumb but he has been found guilty for the offences u/ss.279 and 304A IPC for causing death of one Balmukund, while driving cycle on the road in a rash & negligent manner. 4. When a person is of unsound mind and is incapable of making his defence, the magistrate should postpone the further proceedings by virtue of sub- section (3) of Section 328 CrPC and he shall make an enquiry by the medical or other evidence but here, in the present case, this enquiry has not been made and simply the Magistrate has observed that he cannot understand the proceedings, being a blind man of 60 years and also being deaf & dumb. Normally, a person who does not understand the proceedings, cannot be a 4 man of sound mind. Unsound mind nowhere defines that a man should always be lunatic. Soundness of mind presupposes healthy state of mind in understanding the happenings. Even if the Court takes it for a moment that Section 318 of the Code applies in cases for those persons, though not of unsound mind, who cannot understand the proceedings, then he may proceed with the enquiry or trial. But before proceeding for further enquiry or trial, the Magistrate should make necessary enquiries and find out, if the deaf & dumb accused can be made to understand the proceedings and should come with a definite conclusion before forwarding the proceedings to the High Court. This has been held by the Orissa High Court in re: Beda reported in AIR 1970 Orissa p.3 in which it has been held that prior to making a reference u/s.341 of the Old Code, it is obligatory on the Court to make necessary enquiry and endeavour to find out, if the accused can understand the proceedings and come to a definite conclusion. In this case, it is revealed from the 5 ordersheet of the learned trial Court dt.22.1.2001 that the accused was unable to reply to questions put to him u/s.313 CrPC and, therefore, his statement was stayed by virtue of Section 318 of the Code. In the earlier part of the order sheet dt.22.1.2001, the learned Magistrate has observed that the accused Gani Mohd. was examined and during trial, it was felt that neither he can hear nor speak but if he is communicated with certain gestures, he can understand. When this was stated at the time of the trial, which according to the learned counsel, the same ordersheet was existing when the charge was explained i.e. prior to examination of prosecution witnesses, then the Magistrate should have either proceeded under sub-section (3) of Section 328 or under Section 318 of the Code by getting the accused examined from a competent expert, whereas in this case, the trial was over after examination of the prosecution witnesses and this stage of not understanding the proceedings came when the 6 statement of the accused was recorded u/s.313 CrPC, which was neither signed by the accused nor any questions were put to him with regard to incriminating evidence appearing against him. When the magistrate felt that the accused was unable to answer the questions put to him u/s.313 CrPC, which is almost at the stage of conclusion of the trial, though literally being a part of the trial, the learned magistrate should have made a reference at that stage, if the proceedings resulted in conviction, instead of passing the judgment of conviction of accused on the basis of the evidence, which was brought against him. On one hand, the learned magistrate has proceeded with the trial and concluded the same by passing the judgment also and on the other hand, he has referred the matter to this Court u/s.318 of the Code. 5. Though technically by reading cumulative effect of Section 318 of the Code, a reference can be made after conviction by proceeding with the enquiry or trial but 7 the wordings of Section 318 CrPC are silent as to what is the effect of the judgment when the trial is concluded and the circumstances appearing against the accused, are not explained to him alike Section 328(1) of the Code, where examination of accused by Civil Surgeon or Medical Officer appointed, is mandatory. Such expert shall thereupon be examined by the court as a witness and pending such examination, such accused may be released as required u/s.330 of the Code. This appears to be a case of anomaly where legislative wordings are silent, while enacting Section 318 CrPC, if read in the light of other parts of the Criminal Procedure Code, as referred-to above. The only conclusion, which can be drawn from the bare reading of Section 318 of the Code is that such conviction should be recorded only when the requirements of Chapter XVII to Chapter XXI of the Code have been complied with. Chapter XXVII of the Code dealing with the judgment comes to operation, only when the trial is in accordance with the preceding 8 Chapters including Section 318 of the Code by reaching to a definite conclusion about the mental state of accused in understanding the proceedings. 6. Though, both the parties have not been able to cite any law on the point as to what is the effect of such a reference in which the judgment has been pronounced, without explaining to the accused the incriminating circumstances appearing against him and the right of the accused to lead his defence, except the cases referred-to above by the court itself. There cannot be the intention of the legislature while enacting Section 318 of the Code to pronounce a judgment by proceeding with the enquiry or trial against a person, who does not understand the proceedings, without explaining to the accused the incriminating circumstances appearing against him and without giving him a chance of defence, especially when no conclusive finding has been given about the mental state of accused. In my view, the legislative 9 intent in enacting Section 318 of the Code by incorporating the words to pronounce a judgment of conviction is only when the other provisions of the trial, as discussed hereinbefore, are complied with, else such judgment of conviction is void ab initio. 7. In view of the above, without going into the merits of the case, the judgment of conviction dt.5.2.2001 passed by the learned ACJM, Badi Sadri, Distt.Chittorgarh, against the accused cannot survive and, therefore, the same is set aside. However, looking to the fact that the accused is an old man of 60 years, who is blind, deaf & dumb as observed by the trial Court, this Court while exercising powers u/s.482 read with Sec.483 of the Code, drop the proceedings against the accused Gani Mohd. in an old case of 1995, instead of remitting the case for re-trial. (DEO NARAYAN THANVI), J. RANKAWAT JK, PS