Prinsep and Stanley, JJ.
1. The occurrence, which forms the subject matter of these proceedings, took place in 1891.
2. The accused, who is charged with having killed Koliman Bibi, has until recently been in a lunatic asylum. He is now reported to be able to stand his trial. He is deaf and dumb and cannot be made to understand the proceedings, which have been taken. He has been committed to the Court of Session on a charge of murder, and the proceedings have under Section 341 of the Code of Criminal Procedure been sent for our orders. We have considered whether the commitment having been made the Sessions trial should be held. Section 341 declares that in such a case 'if the enquiry results in a commitment, or if such trial results in a conviction, the proceedings shall be forwarded to the High Court with a report of the circumstances of the case, and the High Court shall pass thereon such order as it thinks fit.' The law evidently does not contemplate that the Sessions trial shall necessarily take place. It leaves it to the High Court to determine this. The High Court can in a case triable by a Magistrate pass sentence on what is termed a conviction, though it cannot strictly speaking be so termed, seeing that the accused cannot in such a case make a proper defence. The proceedings are anomalous, and in all respects do not represent a complete trial. If they did, a special report for the orders of the High Court would be unnecessary. If, as we understand the law, it is discretional with the High Court on a commitment made to order the Sessions trial to be held, we must consider whether any benefit will be likely to result especially to the accused by such a trial. We are unable to find any. The proceedings in the Sessions Court will in this case amount to merely a repetition of what has already been recorded before the Magistrate, and we shall then be called upon, as now, to pass final orders. In a case referred under Section 341, the Legislature seems to have contemplated that there should be a finding by the Magistrate either by what are called a conviction, or a commitment that prima facie, that is to say, on the evidence for the prosecution, an offence has been committed, and that the accused though not insane cannot be made to understand the proceedings, and there have been reported cases in which sentence has been passed by the High Court in the absence of any defence for such reason.
3. In the case before us there can be no reasonable doubt that the accused killed the woman Kaliman Bibi. So far as we can judge from the evidence he was lustfully inclined. When alarm was given he was found sitting on her bed where she was lying dead from wounds on her body. We, however, find ourselves unable to hold that he was responsible for his action. In our opinion at the time of killing Kaliman Bibi he was, by reason of unsoundness of mind, incapable of knowing that he was doing what is wrong and contrary to law. We accordingly direct that he be kept in the jail of this district until the order of the Local Government shall have been received, and the case will be reported for such orders.