AMBUJAM Vs. STATE

JUDGEMENT

(1.) ON a private complaint under S. 420 read with S. 34 IPC. against five persons, the Magistrate took the case on file on 30 41971 and issued summons to the accused to appear before him on 7 61971. The 2nd accused, as already stated, is the wife of the first accused and accuseds and 4 are their children. The averments in the complaint are that accused 1 and 2 are doing motor transport business and accused 3 to S assist them in their business. The first accused contacted the complainant on 26 61970 and made a false representation that the 2nd accused had an account with the Federal Bank at Ernakulam and issued a cheque to him for Rs. 1000/- and persuaded the complainant to part with Rs. 1000/-, The complaint averred that the accused committed an offence under S. 420 IPC. because on verification it was found that the 2nd accused had no funds in the accounts of the Federal Bank, for the cheque to be honoured.

(2.) THE case underwent 26 adjournments before the order in question was passed. On 17 81971 accused 1 to 4 were present and thereafter accused 2 and 3, the wife and daughter of the first accused, were exempted from personal appearance. However, on 31-5-1972 when the case was posted for questioning, all the accused were present and they were questioned. After a few adjournments when the case came for hearing on 21-8-1972 the prosecution submitted that they had no further evidence and the evidence was closed and the case was posted for further questioning to 28-8-1972. On that day, the 5th accused alone was present Others were absent. "no reason shown for the absence of others. No representation also on behalf of other accused. THEir bail bonds cancelled. Issue warrants and register M. C. to 8 91972". So ran the order passed by the Court on that day. On 8 91972 accused 1, 3 and 4 were arrested and produced before Court. Fresh warrant was ordered to be issued for the arrest of the 2nd accused. On 22 91972 again the 2nd accused was absent. THE District Magistrate directed reminder to be issued to the Sub Inspector to execute warrant against the 2nd accused, and, even if insane, to be arrested and produced on 6101972. On that day, the 2nd accused was arrested and produced. THE order on that day, which is the subject-matter of revision, reads as follows: "it is reported by the police twice that A. 2 is insane and that she was kept inside a room and that she was uttering abusive words, etc. So she will be sent to the Mental Hospital, Trichur, for observation for 10 days and for report as to whether she is fit to stand trial or not. To 18-10-1972 for report. "

(3.) CHAPTER XXXIV of, the Code of Criminal Procedure deals with lunatics. S. 464 (1) provides as follows: "464. (1) When a Magistrate holding an enquiry or a trial has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, the Magistrate shall inquire into the fact of such unsoundness, and shall cause such person to be examined by the civil Surgeon of the District or such other medical officer as the State government directs, and thereupon shall examine such Surgeon or other officer as a witness, and shall reduce the examination to writing. " The above sub-section, therefore, starts by saying that the Magistrate should have reason to believe that the accused is of unsound mind and consequently incapable of making his defence. It makes it mandatory on him to enquire into the fact of such unsoundness and then cause such person to be examined by the Civil Surgeon of the District or such other medical officer as the State Government directs and thereupon has to examine such Surgeon or other officer as a witness and should reduce the examination to writing. The elaborate procedure provided in S. 464 (1) Cr. PC. very salutary and humane in its approach, has been laid down to safeguard the interests of a person brought before Court, who is suspected to be insane It is evident that the learned district Magistrate did not conform to the requirements of this section. He resorted to the extreme and unfortunate step of sending this lady to the Mental hospital merely on the report of the police, perhaps of a constable. It will be a sad day if judicial decisions are to rest on the report of the police officers, however high-placed they are.