1. This is a reference under Section 341, Criminal Procedure Code, made by the learned First Class Magistrate of Ponkunnam who committed the accused in P. E. No. III of 1953 on the file of his Court for trial before the Court of Sessions for committing an offence of murder. The accused is deaf and dumb and he was horn so. He stood charged with the murder of his uncle. Before the preliminary enquiry commenced lis counsel presented a petition stating that the accused was deaf and dumb, that he was unable to understand the proceedings in court and that he should therefore be got medicaily examined and a certificate obtained regarding his. capacity to understand the proceedings.
In complying with the request the learned Magistrate sent the accused for observation by the Medical Officer in charge of the Government Hospital at Kanjirappally and after keeping him under observation for eight days the Medical Officer reported that he was deaf and dumb and unable to hear and reply questions put to him. Afterwards the Magistrate held an enquiry ss to the physical and mental capacities oE the accused, by examining the said Medical Officer as also a close relation of the accused and a close neighbour.
The Medical Officer's evidence was to the effect that the accused was not able to understand the questions put to him while the evidence of the other witnesses went to show that by long practice they were able to talk with the accused by signs and sounds on routine matters and understand his signs and sounds, but that it was impossible for them to make him understand the proceedings in court and he cannot understand them. On the strength of the evidence the learned Magistrate passed an order as follows.
'From the evidence of the witnesses detailed above and my own questioning tile accused, I am convinced that the accused is a deaf and dumb person who cannot be made to understand the proceedings in court. The inquiry against him will therefore be proceeded with and action taken at the close of the inquiry as laid down in Section 341 Cr. P. C. The accused has engaged a counsel who can watch the proceedings and do the needful for him'.
2. The preliminary enquiry was conducted by the successor-in-office of the Magistrate who passed the above order. There are no eye-witnesses in the case to prove the occurrence. Certain portions of the committal order may with advantage be quoted here:
'Accused came to the house of Pws. 2, 6 and 21, wife and children of the deceased at 7 P. M. after the incident and said that ho had committed the offence. He came to the house. of Pw. 1 next morning with the knife arid similarly admitted guilt. Pws. 11 and 12 heard the admission made by the accused'.
'There are no eye-witnesses to the occurrence in this case. As already stated Pws. 1, 2, 6, 11, 12 and 21 speak to the admission made by the accused after the incident. Pw. 2 says that the accused came to his house at 7 P. M. on 14-9-1953 with a dagger in his hand and stated that he had murdered his uncle. P. Ws. 7 and 21 support her. P. W. 1 swears that the accused came to his house on the morning of the 15th and told him that he stabbed his uncle and that the latter died as a result, P. Ws. 11 and 12 say that they were present and heard this admission made by the accused. The accused is a person who cannot talk. P. W. 1 says that he communicated the information by signs. P. Ws. 2, 6 and 21 are interested persons in that they are the wife and children of the deceased. But P. W. 1 is a man of worth and a citizen of the locality. He speaks in detail on the statements made by the accused, This is sufficient in this preliminary enquiry to connect the accused with the crime''.
'The evidence shows that the accused came to the spot before the Incident and was waiting for the deceased. He also admitted the guilt the next morning to P. W. 1 who is a man of worth at the locality. It would therefore appear that the accused had the intelligence to understand the criminal nature of his act. At the commencement of this inquiry the counsel for the accused represented that ho was deaf and dumb. The court conducted an inquiry into the matter examining 3 persons as court witnesses and arrived at the conclusion that the accused could not understand the proceedings in the court, and that there was no possibility of making him understand the court proceedings. No attempt was therefore made to communicate the proceedings of the court to the accused on the hearing dates.'
3. 'Prima facie' the result of the initial enquiry warranted the invocation of the provisions of Section 341 for holding the preliminary enquiry as also the trial. However, we doubt whether the same result follows from the evidence recorded at the preliminary enquiry. Regard being had to the provisions of Section 207A(4) no useful purpose would appear to us to be likely to come out by quashing the committal and directing a fresh enquiry. We would therefore dispose of the reference by giving the learned trial Judge such directions as we think proper to ensure a fair trial of the case.
4. As the enquiry as to the capacity of the accused to understand the proceedings in court preceded the preliminary enquiry, the Magistrate who conducted the latter enquiry did not endeavour to see whether the accused can be made to understand the proceedings, As such we think it incumbent on us to direct the learned Sessions Judge to ascertain for himself whether the accused can be made to understand the proceedings with the help of his relations or friends. It is the court's duty to make a proper endeavour to see whether the accused can be made to understand the proceedings.
To our minds court witnesses 2 and 3 who were examined by the Magistrate to ascertain the capacity of the accused would be the best persons to assist the court in this task. We do not however seek to restrict the court's discretion in the matter of choosing the persons to assist it at the trial. If the learned Judge finds that the accused can be made to understand the proceedings the trial must proceed in the ordinary way. On the other hand if the learned Judge takes the same view as the committal court as to the accused's physical and mental capacities the procedure prescribed under Section 341 should be followed.
If the trial proceeds in the ordinary way the court can pass sentence if the accused is found guilty and convicted. However if it is found that the accused cannot he made to understand the proceedings the court can convict him if the evidence warrants. it, but it cannot pass sentence against him. The court must forward the proceedings to this court to pass such orders as this court thinks fit.
5. Besides following the directions given above, unless the accused or his people retain the services of counsel for defending the accused the court should, for that purpose, engage a senior counsel at the cost of the Government so that he may have the benefit of a proper defence,
6. The reference will stand answered as above.