(1) This is a reference by the Judicial Magistrate, First Class, Badami, under S. 341, Cr. P.C., on the ground that the accused who has been convicted by the learned Magistrate of an offence under S. 66(b) of the Bombay Prohibition Act is a deaf and dumb person not able to follow the proceedings.
(2) The prosecution examined three witnesses in support of its case and their evidence is to the effect that the accused was intercepted while riding on a horse and was found carrying an earthen vessel and a bottle containing illicit liquor. The accused was represented by a pleader and he was further given the aid of a relation of his for enabling the accused to understand the proceedings in the court. Two of the prosecution witnesses are a Police Sub-constable and a Police Constable who were on prohibition duty. The other witness is a registered Medical Practitioner of Kerur.
They all speak to the accused coming along the road riding a horse and the contraband articles being founded in his possession. The accused both at the beginning of the trial and after the prosecution had adduced its evidence denied having committed the offence and he did not adduce any defence evidence. The Magistrate has found the accused guilty and convicted him as mentioned above.
(3) In the Judgment, the learned Magistrate says that the accused, being a deaf and dumb person, was not able to follow the proceedings and that, therefore, he submits the case to the High Court under S. 341, Cr.P.C. for necessary orders. The fact that a person is deaf and dumb does not necessarily mean that he cannot understand, or cannot be made to understand, the proceedings before a court, though the disability is undoubtedly a serious handicap to communication either way. Before the Court of inquiry or trial forwards the proceedings to the High Court under S. 341, Cr.P.C., it must be satisfied that the accused cannot be made to understand the proceedings and the inquiry or trial result in a commitment or a conviction.
If these two requirements are not fulfilled, the proceedings cannot be forwarded to the High Court. There is nothing in the judgment of the learned Magistrate to indicate that he took any other factors than the accused's deafness and dumbness into consideration in stating that the accused was not able to follow the proceedings. On the other hand, the record shows that, after the prosecution took repeated adjournments to secure an expert to interpret the proceedings to the accused and failed to do so, the accused's pleader filed a memo stating that one Hussainsab Muktumsab Jyatgar, a relation of the accused, had come with the accused and that the counsel had no objection to that person acting as an interpreter.
The prosecution also had no objection to this course. The learned Magistrate thereupon ordered that Hussainsab would be examined regarding his competency to make the accused understand the proceedings and to translate the signs made by the accused, to the court. He was so examined. He said that he could translate the signs made by the accused to the court and that he could also make the accused understand the proceedings of the court. He said that he was in a position to do so since he had been connected with the accused for a year or six months. Thereupon, the case being tried as a summary case, the accusation was put to the accused and interpreted by Hussainsab. The accused pleaded not guilty.
Hussainsab does not appear to have functioned as an interpreter in the further proceedings until the prosecution case was closed when he was again called at the time of recording the statement of the accused under S. 342, Cr.P.C. That examination was conducted with the help of Hussainsab. In answer to the Court's question whether he (the accused) had anything to say in regard to the prosecution evidence to the effect that the was found going on horseback with the earthen vessel and the tin box. Nos. 5 and 4, the accused emphatically denied it and to the further question that the prosecution evidence was to the effect that those articles contained illicit liquor and whether he had anything to say about it he said he knew nothing.
(4) In regard to the absence of the interpreter at the time of the examination of the prosecution witnesses, the learned Magistrate says
'The accused is represented by his learned pleader. That is why the interpreter was not present, when the evidence was recorded as it was not necessary for the accused to follow the evidence having been represented by his learned counsel.'
It seems to me that the learned Magistrate's view that the accused being represented by a counsel rendered it unnecessary to interpret the proceedings to the accused is unwarranted unless it be that the counsel himself was in a position to interpret the proceedings to the accused. That is not the position in this case. Unlike in civil proceedings the scheme of the Cr.P.C. requires that the accused should be personally present throughout the proceedings except when the Magistrate, if he sees reason so to do, dispenses with the personal attendance of the accused and permits him to appear by his pleader.
The object is that the accused should be in a position personally to apprise himself of the proceedings and follow them. That object will not be fulfilled in the case of a deaf and dumb person by the mere presence of the pleader who represents him. It is seen from what is stated above that when Hussainsab was examined he stated not only that he could translate the signs made by the accused to the Court but that he could make the accused under stand the proceedings of the court. Therefore, nothing prevented the Court from having the proceedings, including the evidence of the prosecution witnesses, interpreted to the accused. The failure to do so appears to me to be a serious lacuna in the case.
(5) I have already mentioned above that the learned Magistrate seems to have thought at the time he forwarded the proceedings to this Court that the accused's deafness and dumbness were in themselves enough to show that the accused could not be made to understand the proceedings, though earlier he himself took steps to see if the proceedings could be interpreted to him. In other words, he has not applied his mind to the question whether the accused could or could not be made to understand the proceedings and arrived at a reasoned finding on the point. Such a finding, as stated above, is a necessary requirement for the learned Magistrate acting under S. 341, Cr.P.C. This also is a serious lacuna in the proceedings of the Magistrate.
(6) The conviction of the accused is accordingly set aside and the court below is directed to dispose of the case according to law.
(7) Conviction set aside.