P L D 1967 Dacca 701 (PLP)

This reference calls in question the order to proceed with the case without trying the plea of insanity as made by Mr. M. A. Qasmi, Magistrate 1st Class on 26‑2‑

64. The accused petitioner Hachi Miah is alleged to have murdered the young son of the informant on 14‑12‑63 and surrendered himself in the police station concerned on 15‑12‑

63. He was produced under arrest before the Magistrate on 16‑12‑63 and he is stated to have made a confession of the guilt before Mr. A. Ahmed, Magistrate 1st Class on the same day. . The accused person is in custody since 16‑12‑

63. When the examination of the prosecution witnesses was about to commence on 26‑2‑64, a petition for the first time was submitted before the Magistrate claiming that the accused was suffering from insanity since his birth. The Magistrate however by an order made on the same date refused to order an enquiry in regard to the question of insanity and proceeded with the case. This is the order challenged in this reference. After enquiry under Chapter XVIII of the Code of Criminal Procedure the Magistrate committed the accused petitioner to the Court of Sessions to stand his trial by an order made on 28‑2‑

64. Thereafter a petition was tiled before the Sessions Judge for setting aside the order made on 26‑2‑64 as stated above. The learned Sessions Judge made the present reference to this Court on the ground that "it was incumbent upon the learned Magistrate to hold an enquiry to decide the question of insanity by directing observation by Medical Authorities for a reasonable period." The Magistrate in disposing of the petition dated 26‑2‑64, took into consideration that the accused petitioner had been in custody for about two and a half months and that there was no report to the Court by the Jail authority about inanity and he has also stated that "he seems to have behaved quite normally inside or outside the jail custody. Besides, I also find that this accused has made a judicial confession duly recorded by a first class Magistrate." He thereafter expressed the view that the petition was a baseless one and rejected the same. A perusal of the impugned order clearly indicates that the Magistrate had no reason to believe that the accused was an insane person. Subsection (1) of section 464 of the Code is in the following terms: "When a Magistrate holding an inquiry 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 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." It is therefore clear that subsection (1) of section 464 requires the Magistrate to try the plea of insanity only if "he has reason to believe that the accused is of unsound mind". The order dated 26‑2‑63 clearly indicates that the Magistrate entertains no such belief. It cannot therefore be said that it was incumbent on him to enquire into the question of unsoundness of mind. The Magistrate has committed no illegality in proceeding with the case. The law on this point is clear. Under section 464 the Magistrate has to make an enquiry only when he finds that there is reason to believe that the accused is of unsound mind. Similarly when a case is before a Court of Sessions that Court may also enquire into the question of insanity if it "appears to that Court", that the accused is of unsound mind. It is indeed a matter of some regret that this reference has caused undue delay in holding the trial in the Court of Sessions. If the accused is reasonably believed to be of unsound mind, it is always open to a Court of Sessions to take action under section

465. The view expressed above finds support in the case of Emperor v. Bahadur (A I R 1928 Lah. 796). In that case the learned Judges observed as follows: "There is no provision of law in India making it incumbent upon a Committing Magistrate to order a medical inquiry upon a defence of insanity. It is only in cases where the accused appears to be incapable by reason of mental infirmity, of taking his trial, that this issue of insanity must be tried before the trial for the offence is proceeded with. That is provided by sections 46‑1 and 465, Criminal P. C." In the case of Emperor v. Durga Charan Singh (A I R 1938 Cal. 6) a Division Bench of the Calcutta High Court observed as follows: "The first stage in the procedure laid down by section 465 is that it must appear to the Court that the accused placed on his trial was of unsound mind and incapable of making his defence. The next stage that is to follow when it appears to the Judge that the accused was of unsound mind and consequently incapable of making his defence is that the fact of such unsoundness of mind and incapacity should be inquired into on the materials placed before the Court." In that case also the learned Sessions Judge before whom the plea of insanity was taken refused to adjourn the case and he recorded in his order that the behaviour of the accused in the dock was perfectly normal and he, therefore, refused to hold an enquiry into the plea of insanity. The learned Judges of the High Court refused to set aside that order on the ground that the Sessions Judge was not bound to adjourn the case unless it appeared to him that the accused was of unsound mind. In a Division Bench decision of the Lahore High Court in the case of Ata Muhammad v. The State (P L D 1960 Lah. 111) the question was elaborately discussed and it was observed as follows: "The legal position which emerges from the two sections is that under section 464 the Magistrate must have reason to believe that the accused person before him is of unsound mind and incapable of understanding the proceedings, and under section 465 it should appear to the Court at the trial that the accused person suffers from unsoundness of mind and thus is incapable of making his defence. In either case the action is to follow the subjective re‑action of the Magistrate or the Court to the situation that arises before him. If during the inquiry nothing comes to the notice of a Magistrate to induce a belief in him that an accused person is of unsound mind and if at the trial before the Sessions Court it does not appear to the latter that the accused is of unsound mind and consequently incapable of making his defence, there is nothing for them to do except to proceed with the inquiry or the trial in the normal manner. The words "appear to the Court" are used in section 465 while the words "has reason to believe" are used in section 464, but it is clear that in practical effect they mean almost the same thing. The phrase "to appear" in my judgment used in the context of section 465 in its meaning is nearest to the phrase "to be in one's opinion" as given in the Shorter Oxford Dictionary. In a trial in the Sessions Court, an accused person may feign insanity but if it appears to the Court, unable to detect the simulation that the accused may be of unsound mind, the question has to be tried as a fact and medical evidence on the point would, of course, be an indispensable necessity. But where the Court sees that insanity is a feigned one, it has simply to ignore it. And where it does not appear to the Court at all from its own observations or any other factor that the accused is because of unsoundness of mind incapable to make his defence, the Court is under no obligation to investigate the fact of unsoundness of mind." For the reasons stated above, the reference is rejected and the order made by the Magistrate on 26‑2‑64 and the order of commitment are maintained. As a result of this reference there has been delay in the trial which should now be held expeditiously in accordance with law. I, therefore, direct that the records of the case be sent down immediately to enable the Court of Sessions to proceed with the case expeditiously. K. B. A. Reference rejected.