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Emperor Vs. Trimbak Damodar Herlekar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Reference No. 175 of 1937
Judge
Reported inAIR1938Bom352; (1938)40BOMLR495
AppellantEmperor
RespondentTrimbak Damodar Herlekar
Excerpt:
.....procedure code (act v of 1898), section 341-deaf and dumb-procedure where accused does not understand proceedings-reference to high court-no reference about co-accused who is not deaf and dumb.; section 341 of the criminal procedure code, 1898, permits reference to the high court only as regards the accused person who cannot be made to understand the proceedings though not insane. it cannot be construed to mean that in a case where there are two accused and one of them though not insane is not able to understand the proceedings, the magistrate can refer the proceedings of both to the high court. the high court has no jurisdiction to pass any order with regard to the accused who is able to understand the proceedings. - indian succession act (39 of 1925), section 63: [s.b. sinha &..........under section 262, indian penal code, or in the alternative for abetment of the said offence. the learned magistrate on the evidence was of opinion that both the accused were guilty and he convicted both of them with the offence with which they were charged.2. [his lordship dealt with the case of accused no. 1, and, after examining evidence against him, stated,] we are therefore not satisfied that the accused knew the nature of the act that he was doing. we therefore give him the benefit of that doubt and direct that he should be discharged.3. with regard to accused no. 2 however we do not think we can pass any order about her in this reference. the learned magistrate has referred the case of both the accused to us under section 341 of the criminal procedure code. but that section.....
Judgment:

Divatia, J.

1. This is a reference made by the Sub-Divisional Magistrate, Dharwar City, under Section 341 of the Criminal Procedure Code. There were two accused in the case. The first accused is the son and the second accused is his mother. Accused No. 1 is congenitally deaf and dumb. He was charged under Section 262 of the Indian Penal Code for fraudulently or intentionally causing loss to the Government by using an already used postal stamp and accused No. 2 had been charged also under Section 262, Indian Penal Code, or in the alternative for abetment of the said offence. The learned Magistrate on the evidence was of opinion that both the accused were guilty and he convicted both of them with the offence with which they were charged.

2. [His Lordship dealt with the case of accused No. 1, and, after examining evidence against him, stated,] We are therefore not satisfied that the accused knew the nature of the act that he was doing. We therefore give him the benefit of that doubt and direct that he should be discharged.

3. With regard to accused No. 2 however we do not think we can pass any order about her in this reference. The learned Magistrate has referred the case of both the accused to us under Section 341 of the Criminal Procedure Code. But that section clearly applies only to the case of an accused who is deaf and dumb. Section 341 says that if the accused, though not insane, cannot be made to understand the proceedings, the Court may proceed with the inquiry or trial; and, in the case of a Court other than a High Court, if such inquiry results in a commitment, or if such trial results in a conviction, the proceedings shall be forwarded to the High Court. So that the proceedings to be forwarded to the High Court are only those relating to an accused person who cannot be made to understand the proceedings though not insane. That section cannot be construed to mean that in a case where there are two accused and one of them though not insane is not able to understand the proceedings, the Magistrate should refer the proceedings of both to the High Court, and I think the High Court under the provisions of Section 341 would have no jurisdiction to pass any order with regard to the accused who is able to understand the proceedings.

4. We think therefore that the proceedings with regard to accused No. 2 should be sent back to the learned Magistrate to be disposed of according to law.

N.J. Wadia, J.

5. I agree.


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