1. The applicants are nine out of ten accused who are standing their trial before the Sessions Judge, Amravati, in Sessions Trial No. 6 of 1967. By this revision application, the applicants challenge the correctness of the order of the Sessions Judge, Amravati, passed on October 17, 1967, directing postponement of the whole trial of all the accused awaiting report of the Government under Section 466 of the Criminal Procedure Code because one of the accused, namely accused No, 2 Purushottam, was reported to be of unsound mind.
2. The applicants along with original accused No. 2 Purushottam, were committed to stand trial on the charge of having caused the death Of one Motiramji Kadam and his son Dadarao 011 October 18, 1966, in Rajapeth locality of Amravati town.
3. The trial commenced before the Sessions Judge, Amravati, on September 18, 1967, and was continued from day to day till September 22, 1967. On that date, the trial was adjourned to October 4, 1967. It is alleged that during this interval accused No. 2 Purushottam was showing signs of aberration and was segregated on or about September 26, 1967, for observation of the Jail Authorities.
4. When the trial was resumed on October 4, 1967, Mr. Sapre and Dr. Deshpande were examined in Court to find out the mental condition of accused No, 2 Purushottam. The learned Judge made a note on that date to be found on record page 74 of the Sessions record, stating that certain questions were put to the accused Purushottam. Though the accused Purushottam was able to answer some questions correctly and recognise people, he suddenly became irrelevant. The learned Judge, therefore, directed that accused Purushottam be kept under observation for a further period of 10 days in the Mental Hospital at Nagpur and the trial be adjourned to the next date fixed for hearing which would be communicated later awaiting the report of the Superintendent, Mental Hospital, Nagpur.
5. The trial was resumed on October 16, 1967, when the Superintendent of the Mental Hospital, Nagpur, Dr. Mujawar was examined before the Court. Dr. Mujawar stated, after referring to the signs of the patient and the observation made by the Medical Officer, that in his opinion Purushottam was not in a position to make his defence for another two weeks and though he was not completely insane he was given to intervals of lucidity and mental imbalance. Dr. Mujawar also opined that Purushottam. will take at least two months before he is completely cured and brought to normalcy. In view of this statement of the Medical Officer in-charge of the Mental Asylum, it appears, a request was made on behalf of the applicants i.e. original accused Nos. 1 and 3 to 10, that the trial of these applicants may be separated from that of accused No. 2 Purushottam, so that the trial of the applicants may not be unnecessarily delayed. After hearing arguments, the learned Judge declined to separate the trials and ordered that further proceedings in Sessions Trial No. 6 of 1967 were postponed and a report be made to the State Government under Section 466 of the Criminal Procedure Code. This order is the subject-matter of the present revision application.
6. It is urged on behalf of the applicants that the procedure required to be followed when any of the accused persons standing trial or committed for trial is found to be of unsound mind is provided for in Section 465 of the Criminal Procedure Code and on true construction of the provision of the Code postponement of the whole trial in respect of all the accused is not warranted. Section 465 is as follows:
(1) If any person committed for trial before a Court of Session or a High Court appears to the Court at his trial to be of unsound mind and consequently incapable of making his defence, the jury, or the Court, shall, in the first instance, try the fact of such unsoundness and incapacity and if the jury or Court, as the case may be, is satisfied of the fact, the Judge shall record a finding to that effect and shall postpone further proceedings in the case and the jury, if any, shall be discharged.
(2) The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Court.
7. It is urged that what is required to be postponed in respect of further proceedings is the proceedings in the 'case' and not the postponement of the trial. The opening words of Section 465(1) show that when more than one person are committed for trial on one or more charges permissible under the Code, the trial before the Court of Session is one trial in respect of all the accused. They are liable to be tried jointly if the conditions of the sections permitting joint trial as provided in Sections 234 to 289 of the Code are satisfied. It does not appear that it has been disputed in this case at any time that the joint trial of the accused with original accused No. 2 Purushottam suffered from any infirmity. Even when more than one person are tried jointly, however, so far as each individual accused is concerned, it is his 'case' which is tried separately in the same trial and the use of the word 'case' in Section 465(1) which makes a special provision in the contingency of one of the accused being of unsound mind clearly indicate that what is to be postponed is only the trial in respect of the 'case' of that particular accused and not the trial of other accused. In other words, the contention of the applicants is that each accused has to face his own case though the trial is joint. That joinder of trial does not obliterate the fact that the prosecution has to prove its case against each of the accused separately and when the section has advisedly used the word 'case' it must mean that what is required to be postponed is only the trial of a particular accused who is alleged or found to be of unsound mind and not the cases or the trial of other accused.
8. The learned Additional Government Pleader appearing for the State, whose assistance we appreciate, has placed before us certain other relevant provisions of law and, in particular, the analogy of Article 134 of the Constitution which has received authoritative interpretation. Under Article 134(7) of the Constitution an appeal lies to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court, if the High Court certifies that the 'case' is a fit one for appeal to the Supreme Court under Clause (c) of Article 134(1). It is common knowledge that several accused join in challenging their convictions in a single appeal before the High Court, and the question that arose was whether the grant of certificate to one such accused on the ground that it was a fit case for appeal to the Supreme Court automatically enabled other accused in whose cases such certificate was not called for or appropriate have the right of appeal to the Supreme Court.
9. The matter was considered in Nar Singh v. State of Uttar Pradesh : 1SCR238 . The facts leading to that decision are instructive. In an appeal against convictions under Sections 148, 307/149 and 302/149, Indian Penal Code, by several accused before the High Court, the High Court judgment by mistake convicted one Nanhu Singh who was entitled to be acquitted and was, in fact, intended to be acquitted on the basis of the findings reached in the High Court. By mistake the actual order that came to be passed in the High Court was convicting this Nanhu Singh and acquitting Bachan Singh, But along with Nanhu Singh the conviction of other persons, one of them being Roshan Singh, was also affirmed. When the error was detected, it was brought to the notice of the State Government who promptly remitted the sentence, and ordered the release of Nanhu Singh. But the High Court pointed out that in spite of remission and release the charge of murder still stood and would have all the adverse effects in future. An application for leave to appeal therefore was made on behalf of Nanhu Singh under Article 134(1)(c) of the Constitution as a fit case for appeal to the Supreme Court and a certificate was granted under that clause by the High Court not only permitting Nanhu Singh to file an appeal but also other two accused whose convictions were properly confirmed and who had otherwise no right of appeal. The question, therefore, that arose for decision was the meaning to be given to the use of the word 'case' in Clause (c) of Article 134(1) of the Constitution. In interpreting' this word, their Lordships observed as follows in para. 3 at page 458 of the Report:.As regards the other two, there was nothing in their cases to warrant the issue of a certificate but the learned High Court Judges thought (wrongly in our opinion) that they were bound to do so because Article 134(1)(c) speaks of a 'case' and they considered that the only 'case' before them was the appeal as a whole.
That, in our opinion, is wrong. 'Case' as used there means the case of each individual person-That would be so even if the trial had been by the High Court itself but it is even more so on appeal because, though several persons may join in presenting a common memorandum of appeal (if the Rules of the Court in question so permit), the appeal of each forms a separate 'case' for those purposes. That is obvious from the fact that every person who is convicted need not appeal nor need several convicts appeal at the same time under a joint memorandum; and if it were necessary to send up the 'case' as a whole in the sense which the learned High Court Judges contemplate, it would be necessary to join even those who were acquitted so that the 'case' (in that sense) could be reviewed in its entirety. We are clear that that is not the meaning of the word in the context of Article 134(1) and that the High Court was wrong in thinking that it was.
10. In our opinion, the same principle of construction ought to govern interpretation of Section 465(1) of the Criminal Procedure Code. It does not appear to be intended that merely because one of the accused jointly tried with others in a trial before the Court of Session is found to be of unsound mind, the whole trial i.e. the trial of accused other than such person should be postponed to an indefinite period till the other provisions of this Chapter can be brought into force. We are satisfied that postponement of further proceedings must be limited to the trial of the accused alleged to be of unsound mind only and reference to postponement of proceedings in the 'case' must mean the case of the particular accused and not others.
11. Whereas a provision is made in the Code when necessity is found of separating trials of persons jointly tried or liable to be tried jointly in Sections 337, 338 and 339 of the Code or Section 312 of the Code in case of absconding accused, there is no separate provision for a contingency occurring during the course of trial of several accused when one of them is suspected to be of unsound mind. After providing for postponement of further proceedings in a case in Sub-section (1) of Section 465, we do not find any other provision in this Chapter. If the construction put by the learned Sessions Judge is to be accepted as correct at what further stage or in what contingency the trial can be resumed in respect of other accused Absence of any such provision would also warrant the conclusion that the provision for postponement of further proceedings is made applicable in the 'case' of an accused suspected to be of unsound mind only and does not imply postponement of the whole trial in respect of other accused. In this view of the matter, we must hold that the order dated October 17, 1967, postponing the whole trial cannot be sustained and is hereby set aside. We direct that the trial of the applicants shall proceed from the stage at which order dated October 17, 1967, was passed and shall be concluded according to law.
12. As regards accused Purushottam, who is suspected to be Of unsound mind, orders in his case will have to be passed according to other provisions of Chapter XXXIV in due coure.
13. In the result, the revision application is allowed.
14. A copy of this judgment may be handed over to the Public Prosecutor and the records may be sent immediately.