C.A. VAIDIALINGAM, J.
1. This appeal, by special leave, is directed against the Division Bench judgment of the Calcutta High Court, dated September 19, 1967 in Criminal Appeal No. 5 of 1964, confirming the conviction and sentence imposed on the appellant for offences under Sections 148 and 302 IPC, and Section 5 of the Explosive Substances Act.
2. The appellant, Vivian Rodrick, was tried by the High Court on a charge under Section 302 IPC in the IV Criminal Session of 1964 of the Calcutta High Court, for the offence alleged to have been committed by him on January 9, 1963. The jury found him guilty unanimously and accepting its verdict the presiding Judge, on September 4, 1964 convicted the appellant under Section 302 IPC and sentenced him to death. At the same trial the appellant was also convicted for offences under Section 148 IPC and Section 5 of the Explosive Substances Act and sentenced to rigorous imprisonment for 2 years and 3 years respectively. The terms of imprisonment for these two latter offences were directed to run concurrently. The substance of the charges against the appellant were as follows:
(i) that on January 13, 1963 the appellant was a member of an unlawful assembly guilty of rioting, being armed with deadly weapons and as such punishable under Section 148 IPC;
(ii) that on January 13, 1963 the appellant committed the murder of one Vincent D' Rozario and thereby committed an offence punishable under Section 302 IPC; and
(iii) that on January 13, 1963 the appellant was in possession of explosive substances for unlawful object and thereby committed an offence under Section 5 of the Explosive Substances Act.
Four other persons, Stanley Rodrick, Ranjit Mandal, Simon Das and Ranjit Biswas were also tried jointly with the appellant and convicted under Section 302, read with Section 149 and also under Section 148 IPC. Though the conviction was for an offence under Section 302, read with Section 149 IPC curiously they were sentenced to varying terms of imprisonment; and none of them challenged their conviction in appeals. As mentioned earlier, so far as the appellant is concerned, his conviction for the offences mentioned above and the sentences imposed upon him for those offences were confirmed by the Division Bench.
3. In the view that we take that the appeal will have to be remanded for fresh disposal, we do not think it necessary to elaborately refer to the various contentions taken on behalf of the appellant, attacking his conviction for the several offences on merits, as they are matters which will have to be canvassed before the Division Bench of the High Court when the matter goes back on remand.
4. One of the contentions that has been urged by Mr O.P. Rana, learned Counsel appointed by this Court as amicus curiae for the appellant, is that the Division Bench of the Calcutta High Court has acted illegally or, in any event, improperly, in proceeding with the hearing and disposal of the appeal filed by the appellant when the medical report was that the appellant was of unsound mind. We will refer in our judgment to those matters which will have a bearing for consideration of this aspect.
5. Though the appellant was committed, as early as July 31, 1963 by the Presidency Magistrate to take his trial in the High Court Sessions, there is no controversy that the actual trial in the High Court sessions commenced only from August 3, 1964. This was due to the fact that the appellant, while awaiting his trial, showed signs of unsound mind and the medical report was to the effect that he was of unsound mind. It was only when the condition of the appellant gradually improved and he began to behave normally and in consequence became fit to make his defence that the trial was commenced. The appellant's conviction, as mentioned earlier, at the Criminal Sessions, was on September 4, 1964.
6. The appellant filed a petition of appeal under Section 411-A of the Code of Criminal Procedure, from jail on September 7, 1964 challenging his conviction and the sentences imposed for all the offences. He had also prayed for leave to file additional grounds. By order dated September 11, 1964 the appellate Bench stayed the execution of the appellant till the disposal of the appeal and granted him permission to file further grounds of appeal. The appellant, on December 21, 1964 filed additional grounds of appeal. On January 11, 1965 the appellate court admitted the appeal filed by the appellant and ordered that “the appeal be heard under Section 411-A(1)(b) and (c) CrPC and the usual notice be issued”. Unfortunately there was delay in the printing and preparation of the records with the result that the appeal paperbook was ready only in June 1967 and Criminal Appeal No. 5 of 1964 appeared on July 1, 1967 in the Warning List of the High Court.
7. After the trial and conviction of the appellant at the High Court Criminal Sessions, it appears that there was a recurrence in the appellant of signs of unsoundness of mind. When Criminal Appeal No. 5 of 1964 appeared in the Warning List on July 1, 1967 the mental condition of the appellant, as was indicated by three medical reports, which were before the High Court. The first of these reports, in this series, is dated April 27, 1967 and is:
“27-4-67 — He has strong refusal of food. He becomes easily excited and violent and has the tendency to assault others without provocation. He is very much abusive. He is very much apprehensive and suspicious about others' movement and thinks that people are all hostile to him. He is of unsound mind. Proper restraining measures should be taken so that he may not get any opportunity to assault others.”
The second report is dated May 11, 1967 to the effect:
“11-5-67 — His mental condition is unchanged and he is still of unsound mind.”
The third report is dated June 15, 1967 and is as follows:
“15-6-67 — His mental condition is found to be worse than before. He is still very excited and has strong tendency to assault others. He is strongly suspicious about other's motive. He thinks that other people here are giving him poisons with his food. He is of unsound mind.”
From these reports it is therefore clear that the appellant was of unsound mind as on June 15, 1967. It is gathered from the records that this medical report of June 15, 1967 was placed by the Clerk of the State before the Division Bench, seeking a direction if, in those circumstances. Criminal Appeal No. 5 should be set down for hearing. This must have been presumably done because the said appeal had appeared in the Warning List on July 1, 1967.
8. In order to decide whether the appeal should be taken up for hearing, in view of the medical report, the learned Judges held a preliminary hearing on this aspect on July 18, 1967. The appellant was represented by two counsel who had been appointed by the State. The learned Judges had also invited, on that day, amicus curiae assistance from willing members of the Bar. After hearing the amicus curiae counsel for the appellant, the counsel for the State and the amicus curiae counsel from the Bar, the learned Judges passed an order on July 19, 1967 that the fact that an accused was either of unsound mind or even insane at the time when his appeal was set down for hearing and was heard was no bar to its being heard and disposed of. Accordingly, the learned Judges ordered that Criminal Appeal No. 5 of 1964 should be heard and disposed of without further delay and directed the same to be posted for hearing on August 2, 1967.
9. We will have to refer at a later stage, to some aspects dealt with in this order of July 19, 1967. Before we refer to the dates on which the appeal was actually heard by the Appellate Bench, we will advert to three further medical reports regarding the mental condition of the appellant. On July 1, 1967 the Mental Specialist of Dum Dum Central Jail reported about the appellant:
“His mental condition is unchanged; he is of unsound mind.”
This report was forwarded to the High Court by the Joint Secretary to the Government of West Bengal on July 31, 1967. There is a note, dated August 4, 1967, of an officer of the High Court that the medical report should be placed before the Division Bench. No further directions appear to have been given by the Court presumably because of the order dated July 19, 1967.
10. There was another medical report on August 8, 1967 by the Mental Specialist to the effect:
“His mental condition is considerably better. He is talking more or less normally and taking the usual jail diet regularly. He is rather quiet and shows normal mood.”
This report was also forwarded by the Joint Secretary to Government of West Bengal to the Registrar, High Court, on August 30, 1967 and the note, dated September 1, 1967 on this communication shows that this report was brought to the notice of the Appellate Bench.
11. On August 26, 1967 the Mental Specialist sent a further report:
“He talks and behaves normally. He takes his usual meals regularly. His orientation is normal. No mental abnormality can be detected in him at present. He requires no further mental observation.”
This report, again, was forwarded to the Registrar of the High Court by the Joint Secretary, On September 7, 1967 and the note, dated September 18, 1967 on this communication shows that it was brought to the notice of the Appellate Bench.
12. In accordance with the directions given on July 19, 1967 by the High Court, the appeal was posted for hearing in the daily list of August 2, 1967. Since the record before us did not disclose as to when the hearing of the appeal took place, we requested Mr P.K. Chakravarti, learned Counsel appearing for the respondent State, to obtain and furnish us information regarding the actual dates on which the appeal was heard. The learned counsel furnished us with two messages received by him, one from the Legal Remembrancer, West Bengal, Calcutta and another from Mr Sukumar Basu, Supreme Court Counsel for the Government of West Bengal, Calcutta, both dated April 1, 1969. The Legal Ramembrancer has stated that it had been ascertained from the High Court that Criminal Appeal No. 5 of 1964 was on the Daily List for hearing on and from August 2, 1967 and was actually taken up for hearing on August 10, 1967. He has further stated that it was heard on August 10, August 11, August 16, August 17, August 18 and August 31, 1967 on which date the hearing was concluded and the judgment reserved. The learned Judges delivered their judgment on September 19, 1967. The message received from Sri Sukumar Basu, substantially tallies with the information given by the Legal Remembrancer, with this difference that it refers to an additional date of hearing on August 30, 1967 also.
13. By its judgment dated September 19, 1967 the Appellate Bench dismissed Criminal Appeal No. 5 of 1964 and confirmed the conviction of the appellant on all counts, as well as the sentences imposed on him. The appellant filed an application before the High Court on October 21, 1967 for granting leave to appeal to this Court. He also filed additional grounds of appeal on December 21, 1967. In his application the appellant has stated that in view of the medical report of unsoundness of his mind, the hearing of his appeal should have been postponed.
14. The learned Judges of the Calcutta High Court, by order dated January 8, 1968 refused to grant leave to appeal to this Court. It is seen from this order that one of the points urged for grant of leave was that the hearing of the appeal should have been postponed in view of the medical report that the appellant was of unsound mind. The learned Judges rejected this contention on the ground that at the hearing held by them on July 18, 1967 to consider whether the appeal should be set down for hearing, counsel for the appellant had insisted that the state of mind of the accused was no bar to the disposal of the appeal.
15. The appellant, on March 29, 1968 filed an application to this Court for grant of special leave to appeal against the judgment of the High Court. In this application, apart from taking various grounds of attack against the judgment of the High Court on merits, he has, in particular, in several paragraphs, stated that the counsel appointed for him by the State had no interview or other communication with him to make themselves acquainted with the facts necessary for his defence and that the hearing of Criminal Appeal No. 5 of 1964 had taken place without his knowledge and without his being able to give any instructions for his defence and, as such, there was gross miscarriage of justice inasmuch as he was denied the opportunity of placing his defence before the Court.
16. Mr Rana, learned Counsel for the appellant, urged that certain circumstances brought out in evidence in the case would show that the appellant is entitled to the benefit of Section 84 or Section 85 of the Indian Penal Code. On merits also he urged that the conviction of the appellant for any of the offences could not be sustained. As indicated earlier, we do not propose to go into these matters in view of the short ground, on which we propose to remand the appeal.
17. Regarding the proceedings connected with the trial of the appellant and the hearing of the appeal by the Division Bench of the High Court, Mr Rana, learned Counsel, raised two contentions: (1) That the entire proceedings connected with the trial of the appellant leading up to his conviction are all illegal and void as the provisions of Section 465 CrPC have not been complied with. (2) The proceedings taken in the appeal are also void as there has been a similar violation of the provisions of Section 465 CrPC. Under this head, in the alternative, counsel urged that even if it be held that Section 465 does not apply to appeals, in the particular circumstances of this case and in view of the medical reports regarding the appellant that he was of unsound mind, the hearing of the appeal should have been postponed by the Division Bench till such time as the appellant was certified to be fit to give proper instructions to his counsel to contest his appeal.
18. The first contention of Mr Rana, as noted above, relates to the trial and conviction of the appellant in the High Court Criminal Sessions. The counsel urged that though an order of committal had been passed as early as July 31, 1963, the trial could not take place before August 3, 1964 in view of the medical reports to the effect that the appellant was of unsound mind and incapable of defending himself. On August 3, 1964, when the trial commenced, which, according to the counsel is the material date, there was no material to show that the mental condition of the appellant was such that he was in a position to defend himself during the trial. The last of the medical reports was on the basis of the examination of the accused on May 14, 1964. On such examination, it has been stated, referring to the appellant:
“He is doing well. He is now fit to stand his trial.”
19. It is in view of this report that the trial commenced on August 3, 1964. According to the learned Counsel, on August 3, 1964 when the trial commenced the Court should have followed the procedure indicated in Section 465 CrPC to satisfy itself that the accused was capable of making his defence. The counsel also referred to the following circumstances which, according to him, must have raised a doubt in the mind of the trial Judge that the accused was of unsound mind. The circumstances are: (1) On the first three days of the trial viz. August 3, 4 and 5, 1964 though the accused had been provided a counsel at State expense, he represented to the Court that he did not want the counsel to represent him and he conducted his own defence. This conduct of a person accused of an offence of murder, which is punishable with death, is quite inconsistent with his being of sound mind. (2) After the third day, the appellant wanted a counsel, named by him, to be engaged for his defence. (3) On August 6, 1964 the records show that the second accused, the brother of the appellant, had represented to the Court that he was afraid of the appellant and apprehended violence and prayed for his being kept in a different cell during the recess. The trial Judge directed that the appellant should be kept in a separate cell by the police. These circumstances, according to counsel, must have raised a doubt in the mind of the trial Judge regarding the state of mind of the appellant and the trial Judge should, in consequence, have adopted the procedure contained in Section 465 CrPC. The fact that there was a medical report that on May 14, 1964 the appellant was considered to be fit to stand his trial was of no consequence; as Section 465 had not been followed, the trial proceedings were all void.
20. Mr Chakravarti, learned Counsel for the respondent — State-urged that there had been no violation of Section 465 CrPC in the trial of the appellant. The counsel pointed out that the state of mind of the appellant on May 14, 1964 as stated in the medical report, was that the appellant was fit to stand his trial. On August 3, 1964 when the trial commenced, the charges were read over and explained to the appellant and to the other accused individually and the plea of each accused was taken separately. The trial proceedings showed that the appellant and the other accused pleaded not guilty to the respective charges and claimed to be tried. The appellant made a request to the Court that he did not like to be defended by the counsel then engaged for him by the State and that he would defend himself. Later on, the appellant also made a request to the trial Judge for making available to him for his defence the services of the counsel named by him. These and other circumstances would show that there was nothing, at the time when the trial commenced or during the trial of the appellant, to raise any suspicion in the mind of the trial Judge that the accused was of unsound mind. On the other hand, according to Mr Chakravarti, the position was that the accused was of a perfectly normal state of mind and was in a position to defend himself properly. Under those circumstances, the question of applying the provisions of Section 465 CrPC, did not arise.
21. We are not inclined to accept the contention of Mr Rana that the trial proceedings are illegal and void for the reasons stated by him. Section 465 CrPC, which appears in Chapter 34 dealing with “lunatics”, is as follows:
“465. (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 unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Court.”
Section 467, in the same Chapter, relates to resumption of inquiry or trial and Section 468 provides for the inquiry or trial being proceeded with, if the Magistrate or the Court, as the case may be, considers the accused capable of making his defence, and for postponing the trial or inquiry if the accused is still incapable of making his defence. To adopt the procedure indicated in Section 465, it is necessary that the person committed for trial before a Court of Session or a High Court must appear to the Court to be of unsound mind and incapable of making his defence. The emphasis is: (1) that the person must appear to the Court to be of unsound mind; and (2) in consequence of such unsound mind he must be incapable of making his defence. There must be something in the demeanour of the accused who is brought up for trial which would raise a doubt in the mind of the Court that he is of unsound mind and consequently incapable of making his defence. If such a doubt had been raised in the mind of the Court, it was obligatory on the Court, or the jury, in the first instance, to try the fact of such unsoundness of mind and incapacity of the accused. If the jury, or the Court, as the case may be, is satisfied of the said fact, the Judge shall record a finding to that effect and shall postpone further proceedings in the case. Without attempting to be exhaustive, we may indicate that a doubt may arise in the mind of the Court because of the manner in which an accused behaves or answers questions.
22. In the present case we have referred to the fact that though, on earlier occasions, the medical report was that the appellant was of unsound mind and, as such, unable to defend himself, the medical report, dated May 16, 1964 based upon the examination of the accused on May 14, 1964 was to the effect that he was doing well and that he was fit to stand his trial. It is in view of this report that the trial itself commenced on August 3, 1964. As pointed out by Mr Chakravarti, the record shows that on August 3, 1964 when the trial commenced the accused was able to understand the charge read out to him and he pleaded not guilty and claimed to be tried. Without going into any great detail, we may also state that even a glance at the manner in which the cross-examination of the witnesses was done by the appellant himself, during the first three days of the trial, shows that he was able to follow the proceedings properly. None of the circumstances pointed out by Mr Rana would, each by itself or cumulatively, be sufficient to create a doubt in the mind of the Court about the accused's capacity to defend himself and to understand the proceedings. We do agree that the material date, if circumstances existed, to attract the provisions of Section 465 CrPC, would, in this case, be August 3, 1964; but we do not agree with Mr Rana that on that date, without anything more, there was an obligation on the part of the Court or jury to investigate whether the accused was of unsound mind or not. It is not the duty of a Court or the jury to proceed to try the fact of unsoundness of mind of an accused whenever one is brought for trial unless it appears to the Court that the accused is of unsound mind and consequently incapable of making his defence. No doubt, in this case, there had been previous reports that the accused was of unsound mind; but the last of the reports, dated May 16, 1964 clearly established that the accused, on examination on May 14, 1964 was found to be fit to stand his trial. On the date of trial and on subsequent days, when there was nothing in the demeanour of the accused, or otherwise, to raise a doubt in the mind of the Court about the unsoundness of mind of the accused and, in consequence, his incapacity to make his defence, there was no occasion for the application of Section 465 CrPC.
23. We are satisfied that the trial proceedings cannot be considered to be illegal or void. As to whether the conviction of the appellant is correct or not, is an entirely different matter. The first contention of Mr Rana therefore fails.
24. The second contention of Mr Rana is that the proceedings in the appeal before the Division Bench are void and illegal as no inquiry had been made by the appellate court, under Section 465 CrPC. In the alternative, Mr Rana has urged that in the face of the medical reports about the unsoundness of mind of the appellant, it would have been proper if the hearing of the appeal had been postponed till such time as the appellant was certified to be fit to contest his appeal.
25. Mr Chakravarti, on behalf of the State, on the other hand, pointed out that the appellant had been provided in the appeal before the High Court, at State expense, two counsel who had also represented him during the trial. The said counsel had also represented to the High Court on July 18, 1967 that it was in the interests of justice that the appeal should be heard and disposed of at an early date and that the appellant will not be prejudiced by the hearing of the appeal. No prejudice has been caused to the appellant by the hearing of the appeal as the judgment of the High Court indicates that all points available to the appellant had been placed before the Court. The counsel also pointed out that the medical report,
dated August 8, 1967 showed that on that date the mental condition of the appellant was considerably better and he was in a normal mood. As the hearing of the appeal had begun after this report, it cannot be said that there was any irregularity or illegality committed by the High Court in having proceeded with the hearing of the appeal.
26. We are of the view that it is not necessary for us, in this case, to express any opinion on the applicability, or otherwise, of the provisions of Section 465 CrPC, to appeals. For, on the facts of this case, we are inclined to accept the alternative contention of Mr Rana that in the face of the medical evidence and in view of the fact that the appellant was contesting his conviction for murder and the sentence of death imposed upon him, it would have been proper if the Division Bench which heard his appeal had postponed the hearing of the appeal till such time as the appellant was declared fit to contest his appeal. We have already set out the various medical reports as well as the dates on which the appeal was heard in the High Court. It was unfortunate that in the face of the medical report of June 15, 1967 the High Court passed an order on July 19, 1967 fixing the hearing of the appeal for August 2, 1967. On May 11, 1967 the medical report was that the appellant was still of unsound mind and the report of June 15, 1967 showed that he was still of unsound mind and that his mental condition had become worse than before. It was in the face of this report that the High Court fixed the hearing of the appeal for August 2, 1967. The report of June 15, 1967 clearly establishes that the appellant's mental condition was worse than before and that he was of unsound mind, leading to the inference that, in consequence, the appellant must be considered incapable of contesting his appeal.
27. It is no doubt seen from the order passed by the High Court on July 19, 1967 that counsel for the State as well as counsel appointed for the appellant by the State, to argue his appeal, had represented to the Court that Chapter 34, CrPC did not apply, meaning thereby that Section 465 CrPC, had no application to appeals. They seem to have further urged that in the interests of justice, the hearing should not be postponed and that, on the other hand, the appeal should be heard and disposed of on merits. In fact it is also seen that the amicus curiae counsel for the appellant had further represented that “his client would not suffer any handicap in the matter of proper hearing of the appeal on the evidence recorded in the trial nor in the matter giving proper instructions to his lawyers, even if he was under some disability regarding his state of mind”. These representations seem to have persuaded the learned Judges of the High Court to hold that there is no bar to hearing and disposing of an appeal, even if the accused appellant is of unsound mind, or even insane, at the time when the appeal is taken up for hearing.
28. Whatever may be the legal position regarding the applicability of Section 465 CrPC, to appeals, we are not inclined to agree with the proposition enunciated by the learned Judges that there is no bar to “hearing and disposing of an appeal, even if the accused appellant is of unsound mind or even insane at the time when the appeal is taken up for hearing”. It must. be remembered that in this case the appellate Bench had passed an order on January 11, 1965 that the Criminal Appeal No. 5 of 1964 would be heard under Section 411-A (a), (b) and (c), CrPC. That means that the appellant was entitled to challenge his conviction not only on any ground of appeal which involves, a matter of law only, but also to challenge his conviction on any ground which involves a matter of fact. Under those circumstances, it is clear that the appellant's appeal before the High Court involves also the determination of questions of fact and instructions which the appellant might give to his lawyer as to the hearing of the appeal, might well prove to be vital; but by reason of his unsoundness of mind and the consequent inability on his part to instruct his lawyer in the conduct of his appeal, it must be held that no effective opportunity in the matter of hearing the appeal had been provided to the appellant. When the medical report was that the mental condition of the appellant was worse and that he was of unsound mind and it was in the face of that report that the appeal was directed to be taken up for hearing, it is difficult to hold that a proper and reasonable opportunity had been provided to the appellant with respect to his appeal, because it is impossible for the appellant to make himself heard either in person or through a lawyer when he is of unsound mind,
29. In our opinion, when the report is that an accused appellant is of unsound mind, it is reasonable to infer that he is incapable of making his defence. The Court, in the circumstances, is bound to afford him the same protection to which he would have been entitled had he been of unsound mind at the time of the trial.
30. We may refer, in this connection, to the decision of the Calcutta High Court in Sundaram v. State1 which lays down that even if Chapter 34 of the Code of Criminal Procedure may not apply to an appeal, nevertheless the Court has inherent power to postpone the hearing of the appeal until such time as the appellant should be found to be of sound mind again and thus capable of making his defence. We are of opinion that the distinction sought to be made of this decision, in the order of the appellate Bench, dated July 19, 1967 in the present case, is not justified, whatever may be the position regarding the applicability or otherwise of Chapter 34 to appeals.
31. It is pointed out by Mr Chakravarti that the medical report of August 8, 1967 shows that the condition of the appellant was considerably better. Apart from the fact that this certificate was brought to the notice of the Court only as late as September 1, 1967 by which time the hearing of the appeal had been completed, the report also does not show that the appellant had become completely normal. That certificate is only to the effect that there is a slight change in the mental condition of the appellant from that as indicated in the report of July 1, 1967. The final report of August 26, 1967 no doubt shows that no mental abnormality was detected in the appellant and that he required no further mental observation. This report also was made known to the Judges only as late as September 18, 1967 long after the hearing of the appeal had been completed and just a day prior to the delivery of judgment. Even assuming that the appeal could be held to have been properly heard after August 26, 1967 in this case it will be seen that according to the Legal Remembrancer's letter, referred to above, there has been only one more hearing on August 31, 1967 and two more hearings, as per the letter of Sri Sukumar Basu, on August 30, and August 31, 1967. Even on the basis that there were two more hearings on August 30 and August 31, 1967 it is clear that the appeal had been substantially heard long before August 26, 1967. In our opinion it would have been proper and in the interest of justice if the hearing of the appeal in this case had been postponed on the basis of the medical report of June 15, 1967.
32. The hearing of the appeal, in which sentence of death is challenged, when admittedly the accused appellant was of unsound mind, must be considered to have caused serious prejudice to the accused resulting in failure of justice. For instance an accused appellant may have received information, in consequence of which it may be open to him to give suitable instructions to his lawyer or make an application himself to the Court for adducing additional evidence. If an accused appellant is of unsound mind, how is it possible for him to convey this information to his counsel or for him to make the necessary request to the Court? Similarly, the Court may, during the hearing of an appeal, think it necessary to take additional evidence under Section, 428 CrPC and under sub-section (3) of Section 428, unless there is a direction to the contrary, by the appellate court, the accused or his pleader is entitled to be present when such additional evidence is being taken. It may become necessary, when such additional evidence is being taken, for the accused appellant to give suitable instructions to his lawyer if he is represented by one, or himself put the necessary questions to the witness. How is it possible for an accused appellant to do either of these things if he is of unsound mind?
33. Again, the High Court may be hearing, under Chapter XXVII, CrPC, a reference for confirmation of a sentence of death, passed by a Court of Session, as well as an appeal filed by the accused challenging his conviction and the sentence of death. When such a reference is made, the High Court, which is the Court of appeal, under Section 375(1) CrPC, has been given power to make a further inquiry or to take additional evidence upon any point bearing on the guilt or innocence of a convicted person. If action is taken by the High Court under this section, the accused appellant must have an opportunity of either participating in these proceedings himself or give suitable instructions to his legal adviser, if he has one. How will it be possible for an accused to effectively participate in the said inquiry, either by himself or give instructions to his legal adviser, if he is of unsound mind and consequently incapable of making his defence?
34. This Court has held that it is the duty of the High Court as a Court of appeal, in hearing a reference under Section 374 CrPC, to reappraise and to reassess the entire evidence and to come to an independent conclusion as to the guilt or innocence of each of the accused persons mentioned in the reference: Vide Surjit Singh v. State of Punjab.2
35. The exercise of powers by the High Court, under Section 375(1) CrCP, may in a given case arise and if the reference and the appeal are heard and disposed of by the High Court when an accused appellant is of unsound mind, the consequence will be the denial of an opportunity to the accused to contest his appeal, resulting in gross miscarriage of justice. The circumstances indicated above will clearly show the propriety of postponing the hearing of an appeal involving a sentence of death, when the accused is of unsound mind.
36. To conclude, we are of opinion that in the circumstances of this case, it was not proper for the Division Bench of the High Court to have heard and disposed of Criminal Appeal No. 5 of 1964. In consequence, the judgment of the High Court dated September 19, 1967 in the said appeal is set aside and the appeal remanded to the High Court for fresh disposal and hearing, in accordance with law and in the light of the observations contained in this judgment.