C.R.DASH, J. CRL. REV. NO.412 OF 2002 (Decided on 07.07.2010) BIJAY NANDA @ BIJAYA KUMAR NANDA …….. Petitioner. .Vrs. STATE OF ORISSA. …... …. Opp.Party. CRIMINAL PROCEDURE CODE, 1973 (ACT NO.2 OF 1974) – SEC.318. For Petitioner - M/s. B.S.Mishra-1, K.N.Pattnaik, M.Mishra, P.K.Mohanty, P.R.Mishra, S.Das, S.K.Nanda & V.K.Panigrahi. For Opp.Party - Addl. Standing Counsel. C.R. DASH, J. This revision arises out of appellate judgment of the petitioner’s conviction under Section 324, I.P.C. and consequent sentence recorded thereunder obliging the petitioner to pay a fine of Rs.600/- (six hundred), in default to suffer S.I. for one month. The petitioner, in this revision, has challenged the aforesaid judgment of conviction and order of sentence. 2. The petitioner and his wife are admittedly deaf and dumb. The occurrence in this case happened on 31.08.1991. The petitioner is alleged to have assaulted the informant (P.W.4), her husband (P.W.1) and P.W.1’s sister (not examined) by means of a ‘kati’ / knife. In the evening of 30.08.1991 the informant (P.W.4) and her husband (P.W.1) were absent in their house located in the neighbourhood of the petitioner in HAL Township, Sunabeda. At about 6 p.m. on their return to the house they learnt from the sister of P.W.1 that in their absence the petitioner assaulted her (P.W.1’s sister) with slaps and fist blows. In the early morning of the next day, i.e., 31.08.1991, the informant (P.W.4) confronted the matter to the wife of the present petitioner. As the petitioner and his wife are admittedly deaf and dumb, P.W.4 made such confrontation by gesture. The petitioner, who was present there at that time, got annoyed, chased the informant, assaulted her by ‘kati’ / knife and he also assaulted the informant’s husband P.W.1 and his (P.W.1’s) sister by the same weapon of offence causing thereby bleeding injuries. On the next day, i.e., 01.09.1991, F.I.R. was lodged by the informant (P.W.4). On completion of the investigation, the I.O. (not examined) filed charge-sheet against the petitioner for offence punishable under Sections 326/324, I.P.C. On consideration of the materials on record, learned Court below confined the conviction of the petitioner to one under Section 324, I.P.C. and sentenced him to pay a fine of Rs.600/- in default to suffer S.I. for one month. He acquitted the petitioner for the offence under Section 326, I.P.C. The petitioner preferred appeal before the learned Sessions Judge. Learned Ad hoc Addl. Sessions Judge, Jeypore on transfer of the matter to him, heard the parties, confirmed the conviction and sentence recorded under Section 324, I.P.C. and dismissed the appeal. 3. Learned counsel for the petitioner assails the impugned judgment on different grounds, both on merit and on procedural lapses. His main ground of challenge is however non-compliance of Section 318, Cr.P.C., as the petitioner is admittedly deaf and dumb and he was not in a position to understand the proceeding. Learned Addl. Govt. Advocate, however, supports the impugned judgment. 4. Section 318, Cr.P.C. reads thus – “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.” (Corresponds to Section 341 of old Cr.P.C.) The Section, as the language in clear terms suggests, applies to persons, who are unable to understand the proceedings from deafness or dumbness or ignorance of the language of the country or other similar cause. The reference to the High Court under the Section would only arise, where after necessary enquiries and endeavour to find out if the accused can be made to understand the proceedings, the Court concerned comes to a definite conclusion that the accused does not understand the proceedings. The stage of the reference would come after the trial is over culminating in conviction of an accused referred to in the Section. If, however, the Court concerned on proper enquiry finds that it is possible for the accused to be made to understand the proceedings, the trial has to proceed in the ordinary way and the Court, if the accused is found guilty, convict him and pass sentence without making a reference to the High Court under the Section. (See the case Re: Beda, AIR 1970 Orissa 3). [[ 5. In the enquiry conducted under the section, the Court concerned, if so required may get a medical practitioner examined to find out the physical deficiencies of the accused and to further find out if the accused can be made to understand the proceedings. Friends, and relatives of the accused may be examined to find out as to how the accused usually communicates, and if required, their assistance may be taken during trial to make the accused understand the proceedings, if it is possible for them (friends and relatives) to interpret the proceedings of the Court by means of signs and gestures to the accused. Without such enquiry and endeavour the Court concerned cannot make a reference to the High Court under Section 318 Cr.P.C. routinely on the ground that the accused is deaf and dumb (See AIR 1957 Kerala 9 in re: Padmnabhan Nair Narayanan Nair, State Vs. N. Maktumsab Jatgat AIR 1960 Mysore 315, AIR 1960 Madras in Re: Oomayan). 6. On the basis of rival contentions of the parties, an important question arises as to whether it is the duty of the Court to see if the accused being deaf and dumb can be made to understand the proceedings or a duty is cast on the accused to apply before the Court concerned to the effect that owing to his physical deficiencies or otherwise he is not in a position to understand the proceedings. The answer to the question depends on the knowledge on the part of the Court concerned about the physical deficiencies of the accused or otherwise as referred to in Section 318 Cr.P.C. If the Court concerned, on the basis of the knowledge and information derived from records is of the opinion that the accused brought before it is deaf and dumb, it has to proceed for enquiry in the manner discussed supra to find out whether the accused can be made to understand the proceedings. If, on the other hand, there is nothing on record about deafness and dumbness of the accused concerned and the Court concerned is set to proceed in ordinary manner, a duty is cast on the accused concerned and the prosecution to bring it to the notice of the Court that the accused is deaf and dumb and he is not in a position to understand the proceedings. In other words, the Court concerned may act suo motu on the basis of materials on record or it may act on the basis of motion by the accused concerned or the prosecution. 7. Onerous duty being cast on a Court to do justice between the parties, it becomes imperative on the part of a Court to see that any person brought before it, is in a position to understand the proceedings of the Court. The deficiencies on the part of an accused may be physical or it may be his inability to understand the language of the Court. Whatever be the deficiencies, the Court has a duty at every steps of the enquiry and trial to make the accused understand the proceedings. The scheme of the Criminal Procedure Code shows that the aforesaid duties on the part of a Court is jealously guarded by different procedures enshrined in the Code. If the Court fails in it’s duty in this regard, the accused concerned may be deprived of the benefit of principles of natural justice as enshrined in different provisions of the Code. Needless to state here that unless an accused is in a position to understand the proceedings, it cannot be expected of him to put proper defence. 8. In the present case, the petitioner is admittedly deaf and dumb. Such a fact finds mention in the judgments of both the Courts below. The Court is therefore, cognizant of such a fact from the stage of very initiation of the proceeding. In spite of such a fact, no enquiry has been conducted by learned Court below to find out whether the petitioner is in a position to understand the proceedings of the Court. Learned Court below in ordinary manner proceeded to conclude the trial without bothering at any stage about the physical deficiency of the petitioner. I am constrained to make such an observation inasmuch as learned Court below on the bottom of each deposition of prosecution witnesses has appended the certificate to the effect that the deposition was read over to the accused in his language which he admitted to be true. Such a conduct by the learned Court below makes it abundantly clear that learned Court below has proceeded routinely observing ordinary procedures meant for normal accused persons. In course of examination of the petitioner under Section 313, Cr.P.C. learned Court below has tried to satisfy the form and procedures in the same fashion without being alive to the onerous responsibility cast on it. The petitioner was examined under Section 313, Cr.P.C. on 05.01.2000. The accused statement recorded under Section 313, Cr.P.C. shows that at first the learned Magistrate has recorded the answer of the petitioner to each of the questions as ‘Michha’ (falsehood). Subsequently, on being conscious of the fact that the petitioner is deaf and dumb, she has scored through the aforesaid answers written as ‘Michha’ in vernacular language and has substituted the answers by writing in English “he posed saying no, (since dumb)”. While correcting her own mistakes in recording the accused statement, learned Magistrate has forgotten to bear in mind that the petitioner is deaf also. There is nothing on record (either in the order-sheet or in the accused statement) to show in what manner the petitioner was made to understand the questions put to him under Section 313, Cr.P.C., he being deaf and dumb. Such conduct by the learned Magistrate is indicative of the fact that provisions of Section 313, Cr.P.C. has not at all been complied with in the present case. 9. The discussion supra makes it clear that learned Magistrate has committed illegality in the decision making process itself and the petitioner is prejudiced by the manner in which the entire trial has been conducted. The impugned judgments become, therefore, vulnerable in revision. Taking into consideration the facts and circumstances as discussed supra the impugned judgments and orders of sentence are set aside. The Criminal Revision is accordingly allowed. Revision allowed.