Emperor vs Ahmad Ali

Macpherson, J.—This is a reference by the Sessions Judge of Saran under S. 215, Criminal P.C., wherein he recommends that the commitment to the Sessions by a Deputy Magistrate of Chapra of one Ahmad Ali on a charge under S. 302, I.P.C., be quashed and the Magistrate be directed to hold a fresh inquiry in accordance with law. The accused Ahmad Ali was brought in custody on 15th December 1933, on the charge of having murdered his wife on the preceding day and a charge sheet was submitted by the police on 29th December. The Civil Surgeon was examined on dates in January and February 1934 and as a result the proceedings were postponed under S. 464 (2), Criminal P.C., and eventually the Magistrate took action under S. 466 (2) and reported to the local Government that the accused was incapable of making his defence. Thereafter accused was detained in various places in accordance with orders of the local Government under Ch. 34 of the Code until in April 1935 the Superintendent of the Hazaribagh Central Jail who apparently exercised the powers of the Inspector-General of Prisons under S. 473, reported that the accused was capable of making his defence if placed on trial and the accused was placed on trial before the Deputy Magistrate of Chapra. The Magistrate, after examining certain witnesses, committed the accused to the Sessions on a charge under S. 302, I.P.C.

The learned Sessions Judge considers that the Magistrate has entirely ignored the provisions of S. 468 and that the whole inquiry prior to commitment is vitiated thereby. He holds that when S. 468 (1) imposes upon the Magistrate the necessity of considering the question whether or not the accused is capable of making his defence, the mere fact that a letter had been received from the Superintendent of the Central Jail stating that the accused was capable of making his defence (a letter which he thinks is admittedly receivable in evidence though apparently not marked as evidence by the Magistrate), did not relieve the Magistrate of the duty of finding whether the accused is or is not capable of making his defence. As in his view the Magistrate did not pay attention to the question whether the accused is capable of making his defence and did not find affirmatively, as he was bound to do, that the accused is capable of making his defence, the inquiry and the resultant commitment are illegal. I am unable to agree with the learned Sessions Judge. The case cited, The Acting Government Pleader v. Kunnukan Chetty, 2 Weir 582, is to the effect that:

When a trial is postponed on the ground of insanity of the prisoner, it should not be resumed at the point at which it was previously stopped, hut should be commenced do novo, when the Court finds him capable of making his defence,

and is not in point because in the present instance the trial of the accused had not begun at all. Ch. 34 rotating to lunatics begins (S. 464) with the words :

When a Magistrate holding an inquiry or 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 ; that is to say the Magistrate must have reason to believe that the accused is of unsound mind. S. 465, lays down the procedure when a person who has been committed to the Sessions appears to be of unsound mind, S. 466 (2) ordains the Magistrate or Court to order the accused who is incapable of making his defence and who is not released on bail, to be detained in safe custody. S. 467 (1) provides for the resumption of the inquiry or trial, but sub-S. (2) does not appear to be applicable. S. 468 sets out the procedure on the accused appearing before the Magistrate or Court. Sub-S. (1) does no more than say that when the accused who has not been put on trial because he was of unsound mind appears or is again brought before the Magistrate or the Court, as the case may be, if the Magistrate or Court considers him capable of making his defence, the inquiry or trial shall proceed, while sub-S. (2) deals with the case where the Magistrate considers him still incapable of making his defence. Under sub-S. (1) there does not appear to be any injunction upon the Magistrate or Court to take evidence as to the capacity of the accused to make his defence. The view of the Magistrate or Court is made the criterion of whether action is required under sub-S. (2). With the certificate of "the Inspector-General of Jails" before him and the appearance of the accused in dock, the Magistrate certainly had a basis for a decision as to whether sub-S. (1) or sub-S. (2) applied. There is no reason to hold that his decision was not arrived at under a due sense of responsibility. Being of the view that the accused was capable of making his defence the was bound to proceed with the inquiry : it is only when he considers an accused with regard to whom proceedings have been taken under the earlier sections is still incapable of making his defence, that the Magistrate must proceed under the provisions, of S. 464. Nor does there appear to be any prospective difficulty in the Sessions Court. S. 465 is the provision now applicable, if any be applicable in a case where to all appearanceand on the best of available information the accused is capable of mailing his defence. The reference is accordingly discharged.