STATE OF KERALA Vs. PETER

JUDGEMENT

(1.) THIS reference arises in respect of the committal of the accused in Sessions Case No.57 of 1980,on the file of the Court of Sessions,Ernakulam.The accused in that case is stated to have caused the death of his mother,Rossa aged 50,on 29 -6 -1980 by hitting her with a stone.He was arrested on 3 -7 -1980 and remanded to custody by the Judicial Magistrate of the Second Class,Muvattupuzha.On 11 -8 -1980 a petition was filed on behalf of the accused with a prayer that he be referred to the Mental Hospital for a certificate regarding his mental condition.Mention was also made in the petition that the accused had spells of insanity on previous occasions.Along with the petition certificates issued by three institutions wherein the accused was subjected to treatment for psychosis were also produced.In pursuance of the petition the Magistrate sent the accused for observation and treatment till 22 -8 -1980 in the Mental Hospital,Trichur.The remand period of the accused was extended till 22 -8 -1980.On 21 -8 -1980 a provisional certificate was issued by the Psychiatrist attached to the Mental Hospital,Trichur,that the accused was an inpatient of the hospital from 12 -8 -1980 and that he was suffering from psychosis(schizophrenia ),a mental disease.The certificate also recommended hospitalisation for treatment.In another letter addressed to the Magistrate,the Superintendent.Mental Hospital,stated that the accused was being sent for production in Court,that the certificate enclosed was a provisional one and that for a final opinion the patient should be under observation for ten days more.The certificate appears to have been received on 22 -8 -1980;but there is no date seal of the Court.The letter bears the date seal of the Court as on 27 -8 -1980.A charge sheet was filed against the accused on 22 -8 -1980.Since the case is exclusively triable by the Court of Session it was posted to 29 -8 -1980 for appropriate orders.The accused,who was produced on 22 -8 -1980,was remanded till 29 -8 -1980,with the remark that the accused appeared to be sane.It would appear that the certificate issued by the Mental Hospital on 21 -8 -1980 was not brought to the notice of the Magistrate because there is an endorsement in the letter that the certificate had not been received.It is not known whether the covering letter was shown to the Magistrate.On 29 -8 -1980 the accused was committed to the Court of Session,Ernakulam,under S.209(a)of the Code of Criminal Procedure.

(2.) ON receipt of the committal order and on a perusal of the records the Second Additional Sessions Judge,Ernakulam,felt that the committal was illegal as there were materials available in the case itself suggesting that the accused was suffering from some mental disease.The judge noted that mention is made of the insanity of the accused in the wound certificate in respect of the deceased.The Court found that there was non compliance of the provisions contained in S.328 of the Code of Criminal Procedure in committing the accused to the Sessions.The learned Judge also found that S.399 did not empower him to invoke the revisional jurisdiction and to quash the committal order.Hence the reference under S.395(2 ).

(3.) S .328 deals with procedure in the case of an accused who was suspected to be a lunatic.The section reads: (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. (2) Pending such examination and inquiry,the Magistrate may deal with such person in accordance with the provisions of S.330. (3) If such Magistrate is of opinion that the person referred to in sub -s.( 1)is 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." The word inquiry has been defined in S.2(g)of the Code of Criminal Procedure and it means every inquiry,other than a trial,conducted under the Code by a Magistrate or Court.S.208 deals with the formalities that the Magistrate has to observe prior to the committal of the case to a Court of Session.The difference in procedure between the present Code of Criminal Procedure and the Code of 1898 in the matter of committal is mainly confined to examination of witnesses.While the old Code contemplated taking of evidence,the present Code does not provide for taking of evidence.But,while complying with the provisions contained in S.208 and 209 the Magistrate has to peruse the records and satisfy himself that the case is one triable by a Court of Session and should remand the accused after furnishing the documents referred to in S 208.The process is judicial.The Magistrate is also expected to have an acknowledgement from the accused for having received copies of the documents.For that purpose,even assuming that the acknowledgment could be oral,the Magistrate has to satisfy himself that the accused is mentally sound and is capable of making an acknowledgment.There is no doubt that what the Magistrate is expected to do under S.208 and S.209 involves an enquiry as defined in S.2(g ).Reference may be made to the decision reported in Madhavan Nair v.State of Kerala,1978 KLT 156,decided by one of us.It was held in that case that what is contemplated under S.209 is the committal of an accused,who is of sound mind and capable of defending himself,and that in cases where the Magistrate has reason to believe that an accused is a lunatic he is expected to proceed under S.328(3)of the Code and he should postpone the proceedings after recording a finding to that effect.In Sivaraman v.State of Kerala,1972 KLT 121,a Division Bench of this Court held,that the provisions contained in S.464 and S.465 of the Code of Criminal Procedure,1898,applied in the case appealed and if notice could not be served on him under S.422 due to insanity,the hearing of the appeal had to be postponed till such time that the appellant was found to be of sound mind.Although the case was decided under the,old Code the principle will apply to cases under the present Code also.In State v.Madhavan,( 1955 KLT 265 ),also,a case under the old Code,a Division Bench of the Travancore - Cochin High Court held that in view of S.464 of the Code of 1898,it was incumbent to examine the medical officer who issued the certificate about the mental condition of the accused and the committal order issued,without such examination,was bad for that reason.