STATE OF KERALA Vs. VELAYUDHAN

JUDGEMENT

(1.) THIS is a reference made by the Sessions Judge, Palghat, under Section 395(2) of the Code of Criminal Procedure, for quashing the order of committal of the accused in P.E. Case No. 1/77 passed by the Judicial Magistrate of First Class, Pattambi. The question referred for consideration relates to the interpretation of Sections 208, 209 and 328 of the Code of Criminal Procedure and is whether an accused person, a lunatic who is incapable of defending himself, can be straightaway committed to the Court of Session for trial.

(2.) I shall now state a few facts necessary for the disposal of the case. In connection with the murder of his stepmother by cutting her with a chopper at about 12 noon on February 27, 1977, Velayudhan, the accused, was arrested and taken into custody and on the next day he was produced before the Magistrate and was remanded to the Sub Jail, Ottappalam. In the meanwhile the Superintendent of the Sub Jail, informed the court that the Jail doctors, on examining the accused, found that he was mentally ill. Thereafter he was sent to the Superintendent, Mental Hospital, Calicut with a "reception order" and the doctor, after examination, issued a certificate stating that the accused is suffering from Schizophrenia. A charge sheet was laid before the Magistrate, Pattambi, on completion of investigation by the Detective Inspector, on 23rd April 1977. The Magistrate posted the case to 3rd May 1977 asking the police to bring copies of all documents. Thereafter a warrant was issued to the Mental Hospital, Calicut, to produce the accused before the Magistrate on 13th May 1977. On this date, when the accused was produced, the learned Magistrate without furnishing him copies which were supplied by the police committed him to the Court of Session on the ground that, the accused was incapable of understanding anything that was happening in court, Section 209 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the New Code) does not require of him to hold an inquiry and that the offence disclosed was one exclusively triable by the Court of Session. There is a direction by the Magistrate that "during and until the conclusion of the trial, the accused will be in the Mental Hospital, Calicut."