Kunhi Raman J.
1. This reference is made by the Taluk Second Class Magistrate of Changanacherry under Section 281, Travanoore Cr. P.C.
2. In C. C. No. 83 of 1121 on the file of his Court, two persona Ouseph Chacko and his Servant Kunjan Panky were charged under Section 823, Travancore Penal Code, for causing hurt to P. W 1. The second accused Panky was discharged under Section 256, Travancore Criminal P.C. The Magistrate found that the first accused was guilty and ho, therefore, convicted him and sentenced him to pay a fine of Rs. 10. In default of payment of fine, he was directed to undergo simple imprisonment for one week.
3. The reference is made to the High Court for the alleged reason that the first accused who is deaf and dumb could not be made to under, stand the proceedings against him. Section 281, Travancore Criminal P.C. under which the reference is made, is warded as follows:
It the accused, though not insane, cannot be made to understand the proceedings, the Court may proceed with the enquiry or trial; and if such inquiry results in a commitment, or it such trial results in a conviction, (he proceedings shall be forwarded to our High Coart with a report of the circumstances of the case, and our High Court shall pass thereon such order as it thirds fit.
4. To elucidate the scope of the section, the learned Public Prosecutor who appeared on behalf of the State has invited our attention to a few relevant decisions of other High Courts under the corresponding action of the Indian Code of Criminal Procedure, In the case report. in Allah Dia, v. Emperor, A.I R. (16) 1929 Lah, 840: (29 Cr. LJ. 1104), which was decided by Shadi Lal C J., there was a reference made to the Lahore High Court under S 341,Indian Criminal P.C. The accused in that case was a deaf, mute but at the trial, it was noted that he was represented by a pleader and that one of his brothers was also invited to attend the Court. Questions were put to the accused through his brother who knew the method of communicating with the deaf-mute and the statement of the accused was also recorded by resorting to this method. The questions were put through the brother of the accused and the answers were given by the accused with signs which his brother understood and explained. The Court recorded that the accused had pleaded not guilty. It was held in that case that the facts did not warrant a reference under Section 341. Such a reference could be made only if the accused, though not insane, cannot be made to understand the proceedings, This requirement of law was absent in that case. The records were, therefore, sent back to the Magistrate in order that he may deal with the cage in accordance with law. In the case reported in Emperor v. A deaf and dumb A.I.R. (4) 1917 Bom. 288: (18 Cr. L.J. 143), the proceedings in the trial Court were submitted to the High Court under Section 341, Indian Criminal P.C. There the learned Judges of the Bombay High Court agreed with the Magistrate in holding that the accused understood the nature of his act when he committed the crime with which he was charged. The conviction for the offence of theft which was recorded in the order of the trial Court was, therefore, confirmed, and the High Court passed sentence on the accused. This case indicates that the duty of the Magistrate in cases like the present, is to record a-finding of conviction if a case is made out against the accused upon the evidence called for the prosecution. There is no provision in the section for passing a sentence before the case is referred to the High Court under Section 341. It is the High Court that must pass the necessary orders. In the case reported in 6 M. H. C. R. App VIIl, the Magistrate before whom the trial took place of a deaf and dumb prisoner, did not make any attempt to communicate with the prisoner. The charge against the prisoner was that he had escaped from lawful custody. After the trial, the Magistrate recorded a finding of conviction and sentenced the accused to one month's rigorous imprisonment. The joint Magistrate referred the case to the High Court and the learned Judges of the High Court held that the proceeding of the Magistrate in conducting the trial without making any attempt to communicate with the prisoner was dearly wrong and that the High Court was unable to say that the prisoner was not prejudiced by the irregularity. In the circumstances, the conviction was quashed, but it was held that in the opinion: of the High Court, it was not advisable to direct a new trial. In Emperor v. Khashaba A. I. R. (10) 1923 Bom 191: (25 Cr.L J 660), the accused was a deaf and dumb person who was convicted for attempting to commit suicide. The conviction was mainly based upon a statement which was communicated by the accused by signs. On examining the records and the evidence, the High Court took the view that the conviction was correct and directed that the accused should be sentenced to one day's simple imprisonment. In the case reported in In re Boya Polamma A.I.R. (23) 1911 Mid, 225: (42 Cr L.J. 315), up to a certain stage of the trial before the Sessions Judge of Kurnool, the accused was able to follow the proceedings. The charge against her was that she had committed the offence of murder. After the prosecution evidence was closed and the accused was asked to make a statement, she pleaded that she was unable to heir anything. Therefore, the Judge desisted from making further questions. The accused was represented by a Vakil appointed by the Crown who raised the defence that the case was foisted on the accused. A confession had been duly recorded by a Magistrate before the trial in the Sessions Court began, and the accused herself had produced the jewels which she had taken from the body of the woman she killed. In these circumstances, the High Court held that there was no miscarriage of justice merely because the accused became deaf towards the end of the trial when questions were being put to her by the trial Court. The High Court accordingly confirmed the conviction and passed sentence of transportation for life under Section 341, Indian Criminal P.C.
5. Apart from these decisions, it will be Been from the section that where the accused cannot be made to understand the proceedings against him, the trial Court can, after recording the evidence for the prosecution, convict the accused, bat the section does not provide for passing a sentence on the accused. The proper course for the trial Court to adopt, if the trial results in a conviction, is to submit the proceedings to the High Court for such orders as the High Court may think fit to pass, thus leaving it to the High Court in appropriate cases to pass the sentence.
6. We notice that no endeavour was made in the course of the trial to communicate with the accused through some person acquainted with the method of doing so,. The accused, in spite of his physical defect, has, according to the evidence, the capacity to look after his interests. He was cultivating his own land. He was engaging coolies for doing so. The second accused was one of those coolies. Charge against the first accused was that be beat the complainant with a Nattan stick. The circumstances in which he committed this offence of voluntarily causing hurt were as follows, according to the judgment of the trial Court:
P. W. 1 at the instance fl his master out open the bund to let in water into his master's paddy land from the accused's paddy land. On the afternoon, A2 the servant of Al came to the place and saw the bund cut open. He asked P. W. 1 who did it. The latter told him that he has done so at the instance of his master. A2 returned and brought Al with him....P. W. 1 was then taking his meal....Al asked P, W. 1 who out open the bund. Al demanded P. W. 1 to close the bund. He did not comply with the demand. Al then with a rattan stick in his hand beat P. W. 1 once on his back and voluntarily caused hurt to him
It would appear from this narrative in the judgment of the trial Court, that the first accused was capable of understanding ideas transmitted' to him and of communicating his ideas. These were evidently done by means of gestures and signs. Moreover, d. w. 3 is the younger brother of accused 1. It was this witness who stated, perhaps not in conformity with the whole truth, that accused l was deaf and dumb and that ha was incapable of looking after his family affairs. The narrative of events which culminated in the attack of P. W. 1 clearly shows that accused 1 was not incapable of attending to his business. No endeavour seems to have been made in the trial Court to communicate with accused 1, through persons who are acquainted with his habits. His younger brother, P,W. 3 would have been a suitable person for transmitting the ideas which the Court wanted to communicate to accused l. This was not done. It is incumbent upon the Court under the relevant section of the Criminal Procedure Code to endeavour to communicate with the accused and the omission to do so is opposed to law.
7. We notice, however, from the records that the accused had engaged a pleader to defend him and he was defended. He had executed a vakkalath in favour of the pleader, who has also attested bis signature to the vakkalathu. But the signature is not legible. It looks more like a mark. Therefore, it cannot be inferred that the accused is in a position to read or to write. But he has sufficient intelligence to understand what he is doing, because the pleader took the responsibility of attesting his signature to the vakkalath. Considering the nature of the injury inflicted by accused 1 on P. W. l and the other circumstances adverted to, the conviction and sentence seem to us to be correct and in spite of the irregularities which we have noticed, they do not call for interference by this Court. There is no reason to direct a fresh trial, because we are satisfied that the order made by the Court below in convicting the accused is warranted by the evidence in the case. We, therefore, see no reason to interfere and direct these records to be returned to the trial Court.