STATE OF MAHARASHTRA

SINDHI @ RAMAN February 19, D75 [V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.l

Sec, 374 a11d Sec. 465 of the Cr. P. Code 1898-When does a trial co11c/ude if tli.o. Sessions Judg~ T?asses eat~ sent enc~ and refers to High Court for con- B firmatwn-Whether It is continuatzon of trial-Interpretation of statute-Liberal consm1ction to avoid rep11gna11cy with principles of natural justice.

The responclent \lias sentenced to death by the Additional Sessions Judge for double murder. He did not. file any appeal. The tri..I Judge made u reference to the High Court .• for confirmation of death ; entence.

Twc adv,)cates were appointed Amicu> Cu.iae to defend the respondent. After interview with the respondent the advocates reported to th~ High Court that the respondent appeared to b~ imane. He was examined by a Medical !Board consisting of 3 Psychiatrists. According to the Medical Board he wa; not C capable of rati(mal thinking or bhaviour. The High Court came to th~: concl1*sion that the resoondent was clearly of unsound mind.

The High Court, therefore, postponed the proceeaings in the confirmation case.

On l1ppeal to this Court by State, it was contended; (I) The provision regarding postponing the proceedings if an l1ccmed is found to be of unsound mind as contained in section 465 <>f the Criminal Procedure Code is confined to the trial stage and does not apply to the proceedings before the High Court on referenc~ as the same are post-trial proceedings.

(2) In proceedingi on reference under section 334 the accused has no right of audiern;:e before the Hi2h Court.

(3) The High Court was wrong in delegating its powers to determine wht; ther the respondent was of unsound mind to the Medical Board.

HELD : (i) As far as an accu$etl person sentenced to death is concerned, his trial does not conclude with termination of the proceedings in the Court of Session: since: the death sentence riassed by the Court of Session is subject E to confirmation by the High Court, the trial cannot b~ deemed to have concluded till an executable sntence is passed by a competent court. The confirmation proceedings are in subitance a continuation of the trial.

Expr, ssion "at his trial" occ.t•,; ring in section 465 has to be liberally construed in a manner which is not repugnan! to the fundamental principles of natural justice.

(5790-E; 5800-Ej ·

(2) in coafirmation proceedings the High Court cannot arbilr::riiy refuse to hear the accused either in :>erson or throu1h counsel. It is wrong to ; tate F that the High Court accepted the ipse dixit of the medical expens.

These experts. gave detailed and cogent re<isons in support of their opinion.

The High" _Court meticu!ouslv considered their evidence and thereafter recocdcd its own findings on the crucial issues.

[581B-D] The decision in Vi1•ian Rodrick v. Swte of' West Bengal [1969] 3 S.C.C. 176, followed.

The decision in cases of J111nma11 & Ors. v. State of Punjab A.LR. 1957 S.C. 469 and Surjit Singh a11d Anr. v. State of Punjab. Criminal Appeal No. rJ G of 1968 decided on 15-10-1968 applied.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 158 of 1971-

Aooeal bv Special Leave from the Judgment & OAfer dated the 3rd July, 1970 of the Bombay High Court in confirmation case No. 20 of 1969.

H D. JI. Patel and M. N: Shroff, for the Appelant.

B. R . .Agaiwala, for the Respondent.

• •

The Judgment of the Court was delivered by

SARKARIA, J.-The principal question raised in this appel by speciaJ leave is : Whether Section 465 of the Code of Criminal Procedure, 1898, is applicable to proceedings in reference under s. 374 pending befor~ the High Court for confirmation of the death sentence awarded to an accused by the Court of Session ?

It arises out of these circumstances.

Sindhi alias Raman was tried, convicted and sentenced to death on 13-8-1969 by the Additional Sessions Judge, Greater Bombay for the double murder of two brothers, Lal Chand Jagannath Yadav and Dullar Jaggi Yadav in Chi*havali Farm at Malad on the night between the 25th and 26th of August, 1968. Sindhi did not appeal against the order of his conviction. But the trial Judge made a reference under s. 374 of the Code to the High Court for confirmation of the death sentence. The reference came up for hearing towards the end of 1969.

On 22-10-1969, the prisoner expressed a desire to be present a.t the hearing of his case before the High Court.

Two Advocates, namely Shri D. M. Rane wi'h Shri Mengde as the Senior were appointed as amicus curiae to deend the condemned prisoner in the High Court. After interviewing the prisoner in Jail on 8-1-1970 and 9-1-1970, the Advocate reported to the High Court that the accused was not able to communicate with them intelligently and rationally as he appeared to be insane. Counsel submitted an application to the Bigh Court requesting that the accused be got examined by a Board <1f psychiatrists in order to determine as to whe'her he. was or was not of unsound mind. The application was opposed on behalf of the State inter alia on the ground that s. 465 applies on! y to a trial before a court of Session. The High Court rejected this contention, and by its order, dated 14th January, 1970. directed the Surgeon-General, Bombay t-0 constitute a Special Medical Board of three psychiatrists on the lines indicated in Rule 850 of the Bombay Jail Manual, to examine the accused and "determine whether the accused is of unsound mind, and, secondly whether in consequence of his unsoundr ncss of mind, he is ircapable of making his defence in the proceedings before us". The Board was accordin..gly constituted. The Board deputed Dr. Balakrishna Laxman Chandorkar, Suoerintendent of the Mental Hospital to interview the accused. Dr. Chandorkar, consequently, had fourteen interviews with the accused and also examined the latter physically. The accused was sent, under Dr. Chandorkar's directions, to several hosoitals for special examinations. Dr. Chandorkar 11athered the past historv of the accused, also. in so far as it was relevant to de.termine the issue referred to him.

The conclusion reached b•1 Dr. Chandorkar. which he reported to the Bord on H 28--2-1970. was that the accused ws suffering from Paranoid Schizoohrenia and was of unsound minci and. in conseaueilce. he

wa~ incaoablc of making his defence. On receiving the reoort of Dr.

Chandorkar, the Special Medical Board also examined and interviewed the accused on five occasions. Their conclusion, as communicated to the Hil, lh Court, was :

"(I) Sindhi Dalwai alias Raman Raghav (Prisoner) is of unsound mind. He is suffering from a psychosis called chronic paranoid schizonphrenia or paraphrenia, the latiler being nn old krm for chronic paranoid schizophrenia plus auditory hallucinations. He is dangerous to the society and hence certifiably insane.

(2) Sindhi knew the nature of the act i.e. he knew that

h~ was killini: human beings.

( 3 J He did know that what he did was wrong and contrary to the law of the land but he firmly believed that what he was doing was right and in tune with the law of "kanoon"'' whose law according to him was obligatory for him to follow.

( 4) There is such a degree of unsoundness of mind 1-.2suiling in such a degree of defect of reason that he is

inapable of co-operating with and instructing his defence counsel in the conduct of the trial and court proceedings and he is incapable of making his defence in the proceedings before the High Court. The reasons for this incapability an: :

(a) Complete lack of insight into his ill!less;

(b) firm and unshakable delusions that only the law of

"Kanoon" matters and the law of this world does not apply to him and hence his inability to participate in the court proceedings;

( c) his comple•e lack of realization of the gravity of the

crime and the seriousness of his death sentence;

( d) his judgment is so much influenced by his delusions and hallucinations that he is incapable of rational

thinkin~ and behaviour."

After examining Dr. Marfatia, the Chairman of the Board and Dr. Chandorkar, the Men1al Spcialist, as court witnesses, the High rt~: .

"Tbe prisoner is clearly of unsound mind and in conseiquence thereof he is unable to make his defence. Therefore

proceeclins in the confirmation case will have to be postponed and in the meantime it will be necessary to direct that the State Government do detain the prisoner in safe custody in Ycravda Central Prison.''

It is against this order. dated 3-7-1970, that the State has come in arypaJ before this Court.

Mr. Patel. learned Counsel for the appellant, assails the order of the High Court, postponitlg the proceedins under s. 465 Criminal Procedure Code, on these grounds :

(i) The operation of s. 465, is, in terms, confirmed to the trial stage. The section does not apply to pro ceedings before the High Court, on refe1:ence under s. 374, as the same are post-trial proceedmg:;;

(ii) The question as to whether the accused person has

th~ mental capacity to defend himself or not, arises only at the pre-conviction stage before the Comm1 ttal Court or the trial court, because it is only at that stage the accused person has a right to be heard and lead evidence in defence. But in proceedings on referen.ce under s. 374, the accused person has no right of audience before the High Court, not even where the High Court directs a further enquiry or the taking of additional evidence under s. 375, rtor where any appeal of the accused filed through the .iailor under s. 420, comes up for hearing along with the reference. It is another matter that the High Court has the power, even in such proceedings to hear the accused. For this argument support has been sought from certain observations of Madgaonkar A.J.C. in G, ul v. Emperor(l).

In this connection, learned Counsel has pointed out that at the commencement .of the trial before the Court of Session, also, a question was raised Z.:'i to the mental capacity of the accused and thereupon, the trial Judge after making .a due enquiry in accordance with the provision~ of s. 465, recorded a clear-cut finding that the accused was then of sound mind and capable of understanding the nature of the proceedings and making a defence. This finding of the trial Judge. it is, s•resscd, was not assailed before the Hi!!h Court. and still stands unchallenged. -

Learned Counsel <1lso tried to disinguish the decision of this Court in Vivian Rodrick v. Sto, te of West Benga/(2) on the ground that in that case the convict had preferred an appeal against the order of his conviction, and, consequently, the observations of this Court in regard to the aryplicability of s. 465 Cr. P.C. to proceedings in reference <'re merely obiter. In the al'ernative, it is submitted that those observations need reconsidration in the light of the arguments now advanced before us. ..

Section 465 of the Code of Criminal Procedure 1898 ruris thus : ' . ' " (I) If any person committed for trial before a Court of

Sessiol'l or a High Court appears to the Court at his trial to be of unsound mind and consequently in- ______ cpable of making his defence, the jury, or the

(I) AIR 19cl Sird 84.

(2) fl 9691 3 S.C.C.176

Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the jury or Court, as the case may be, is satisfied of the fact, the Judgr~

shall record a finding to that effect and shall postpone further proceedings in the case and the jury, if any, shall be discharged.

(2) The trial of the fact of the unsoundness of mind and incapacity of tht accused sh~IX be deemed to be part of his trial before the C':)Urt."

" I It will be seen that s. 465, in terms /elates to unsoundney; s of accused's mind and his consequent incpacity to make .defeii1:e, at the time of trial only. The question therefore is : Does the trial on a mur<ler charge end with the conviction and pronouncement of :death sentence on the accused by the Court of Session ? Or, docs it continue till the reference under s. 374, is disposed of by the High Court ? Answer to this question was given by this Court, sp<:aking through Govinda Menon J., as far back as 1956 in Jumman and ors.

v. State of Punjab(') in a telling passage thus :

' "It is clear from a perusal of these provisions (ss. 374, 375, 376 and 377, Cr. P.C.) that in such circumstances the entire case is before the High Court and. in fact it is a colllinuation of the 1rial of the accused on the same evidence and any additional evidence and that is why the High Conrt is given power to take fresh evidence if it so desires. . . . . . . . . . but there is a difference when a refe· rence is made under s. 374, Criminal Procedure Code, and when disposing of an appeal under s. 423, Criminal Pro-· cedure Code, and rhat is that lhe High Court has to satisfy itself as to whether a case beyond reasonable doubt has

ben made out against the accused persons for the infliction of the penalty of death. In fact the~ proceedings before the High Court are a reappraisal and the reassessment of the entire facts and Jaw in order that the High Court should be satisfied on the materials about the guilt or innocence of the accused persons. Such beinl! the case, it is the duty of the High Court to consider the proceedings in all their asvects and come to independent conclusion on the mate-. rials. apart from the view expressed by the Sessions Judge."

(emphasis supplied)

The same position was reiterated with emphasis by this Court i11 Surjit Singh and anr. v. State of Punjaib(2).

Even in Gui v. Em?eror (supra), cited by Mr.

Patel, Madgonkar A. J. C. exoressed himself in a similar strain. What he said more than half a century back still retains its freshness and relevance, and may be extracted : --------

(!) AIR 1957 S.C. 469.

(2) Criminal Ap!)~1\ No. 77 of 1968 decided on 15-10-1968

MAHARASHTRA v. SINDHI (Sarkatia, !.) 579

"The worth and sanctity of human life are a test and mark of civilised societies and are increasingly reflted in 1

the criminal jurisprudence of E'ngland and of India. ·· In

India, the Legislature has provided in confirmation pr0ceedings a final safeguard . . . . . . . . . . "This may perhaps increase our responsibilities and add to our labours; but no one would shirk the one or grudge the other" even in ll

cas~ where the liberty, much more where the life, of the \ subject is concerned.

This duty of judgment is, however laid i111 the first insta, nce upon the Jury a:id the Trial Judge ........ But equally and with all this weight, this Court in confirmation must finally weigh for itself the whole evidence i111 , the light of all the arguments and confirm or otherwise according to its own final conclusion on the guilt or innocence of the sentenced person in the disch2rge of the duty laid upon it by law."

From the above conspectus, it emerges clear that so far as an -accused person sentenced to death is concerned, his trial does not conclude with the termination of the proceedings in the Court of

Seasion.

The reason is that the death sentence passed by the COurt of Ses:; ion is subject to confirmation by the High Court.

A trial cannot be deemed to have concluded till an executable sentence is passed by the competent court.

Viewed from that stand-point, the confinnR1tion proceedings under ss. ,374, 375_ and 376, Chaptec XXVII of the Code of 1898, are, in substance, a continuation of the trial.

Nor is 'it correct to say that in such confirmation proceedings the High Court can arbitrarily refuse Jo hear the accused either in person or through Counsel or other agent.

In Vivian Rodrick's case (supra), the appellant was convicted under s. 302, Penal Code by the Court of Session and sentenced tci death.

The Sessions Judge made a reference under s. 374 for confirmation of the death sentence.

The convict appealed against the order of his conviction and sentence.

The High Court dismissed the appeal, accepted the reference and confirmed the conviction and the sentence. In an appeal by special leave brought before this Court, it was inter alia contended that the proceedings taken in the appeal before the High Court were void for non-compliance of s. 465.

What this court said in repelling that contention, beirtg equally applicable to what has been canvassed before us on behalf of the appellant. may usefully be extracted :

"We are of the view that it is not nssary for us, in this case. to exoress any ooinion on the rm!icabi!i•v. or otherwise, of the provisions of s. 465, Cr. P. . to appeals.

For, on the facts of the case. we are inclihed to acceot the alternative con'ention of Mr. Rana that in the face of the medical evidence and in view of the fact that the

appellant was contestili.g his convition. for murder and the

sentenc<: of death imposed on him, 1t would have bee:n prop.::r 1f tne u1v1sion ne1wh whicn hard his ppeal had postponed the hearing of the appeal tll such ttme as the .. appe1lant was aeclared nt to c011t.::; t ms appeal ..... .

Whatever may be the legal position regarding te pplicat bility of s. 465 Cr. P.C. to appeals, we are not mclmed o

agree with toe propos1tton enunciate.d by th.e larn1:.~ Judges that there is no bar to hearing nd d1sposrng of an <1ppeal, even if the accused-appellant 1s of unsomd mind or even insane at the time when the appeal 1s taken i1p for hearing ...... in our. opinion, when t?c r~- port is that an accused appellnt . JS of unsound n:md, t is reasonable to infer that he JS mcapablc of makmg lns dcfcn:e The C<.rnrt. i:1 the circurnstrnces is bound to afford him the same' protection to which he would be entitled h~1d he been of unsound mind at the time of the trial.''

In the present case no appeal was filed by the prisoner bef?re the High Court.

It is therefore unnecessary for us to examme

whcthe~ the provisions of s. 465, in terms, or, in principle, apply, to an appeal by the condemned prisoner before the High Court. '.3uftke it to say that the expression "at his trial" occurring in s. 465 ktas to be liberally construed in a malll11er which is not repugnant to the fundamental principle of natural justice conveyed bv the maxim audi alteram partem, audiatur et altera pars. \

In the light of what has been said above we negative the legal con1cntions raised by the appellant-State.

 The next contention of Mr. Patel is that the High Court left the decision of both the points, viz., ( 1) whether the accused was of unsound mind and (2) whether in consequence he was incapable

ef m, king his defence, almost entirely to the Medical Board. Such F delegation which gives the proceeding the colour of trial by Doctors is nt permissible under the law.

Reference on this point has been :eiade to R. v. Pondole(1).

On merits also, it is maintained, the findings on the aforesaid issues, are wrong. as the accused fully :k'nllw that he had been tried and sentenced to death for the murdei'~ 611 ouestion..

Ern111i~is has been laid on the fact that the aecused had on 18-12-1969 expressed in writing through Jailor, his G desire to be present in the High Court at the time of the hearing of -his case.

Counsel hs referre:d extensivelv to the statements of Doctor Chandorkar an~ . Dr. Marfatia and contended that everything

abot the mental cond1t1on of the accused even according to these 111ed1cal xperts was normal excepting that he was suffering from the delu_s.10n that he had been ordained bv some higher "Kanoon" to co!Il~Jt these murders.

According to Mr. Patel, insanity judge:d H by cltrncal standards is different from insanity determined by legal

(1) [1959] All E.R. 418.

MAHARASHTRA v. S!NDHr (Sarkaria, J.) 581 ,

standards.

It is ur&ed that since the accused fully knew the nature of the. criminal acts he had committed and the proceeding against him, it could not be said that he was incapable of makirig nis defence.

It is true that the High Court had by its order dated 14-1-1970, referred both the issues in rc:gard to the mental cap<1city of the accused to the Medical Board, and has given due weight to their opinion.

But it is not correct to say that the High Court accepted the ipse dixit of the medical experts.

It examined Dr. Marfatia and Dr. Chandorkar as court w1tnsses. These experts gave detailed and cogeillt reasons in support of their opinion.

The High Court meticulously com; idered their evidence and thereafter recorded it~ own findings on the crucial issues.

We nave ourselves examined

.. the evidence rendered by these two mental experts in .the High Court.

We are satisfied that the conclusion; arrived at by the High Court' in regard to the mental capacity of the accused on the ba!is of this evidence is correct.

In the result, the appeal fails and is dismissed.

P.H.P Appeal dismissed: