STATE Vs. BABY

JUDGEMENT

(1.) 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 ).

(2.) THE two points arise for consideration are: (1)whether the Magistrate having referred the accused for observation and treatment to the Mental Hospital was justified in committing the accused to the sessions without conducting an enquiry as contemplated in S. 328 of the Code of criminal Procedure; (2) whether the Sessions Court was competent to quash the committal proceedings in exercise of the revisional jurisdiction vested in that court under S. 399 of the Code of Criminal Procedure.

(3.) IN the instant case, the Magistrate having perused the certificates produced on behalf of the accused thought it fit to send him for observation to the mental hospital at Trichur. The fact that the accused was sent for observation shows that the Magistrate had reason to suspect that the accused was of unsound mind. If that be so, it was incumbent on the Magistrate to have inquired into the fact of unsoundness of mind and for that purpose he should have waited for the result of the observation by the medical officer, should have examined the medical officer and reduced the examination in writing as contemplated in S. 328 (1 ). If, after such inquiry the Magistrate is of opinion that the accused is of unsound mind and consequently incapable of making his defence he should have entered a finding to that effect and should have postponed further proceedings in the case. IN other words, having sent the accused for observation in the mental hospital, the court should have waited for the final report of the Superintendent especially in view of the interim report received suggesting insanity and requesting for further time for observation and final report IN the light of the specific provision contained in S. 328 (1) the Magistrate was not justified in forming an opinion based on his personal observation. The committal order passed by the learned Magistrate is therefore unsustainable in law and has to be quashed.