CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 158 of 1971. Appeal by Special Leave from the Judgment & Order dated the 3rd July, 1970 of the Bombay High Court in confirmation cut No. 20 of 1969. D. Y. Patel and M. N. Shroff,.for the Appellant. B. R. Agarwala, for the Respondent. The Judgment of the Court was delivered by SARKARIA, J.-The principal question raised in this appeal by special leave is : Whether Section 465 of the Code of Criminal Procedure, 1898, is applicable to proceedings in reference under s. 374 pending before the High Court for confirmation of the death sentence awarded to an accused by the Court of Session? It arises out of these circumstances. Sindhi alias Raman was tried, convicted and sentenced to death on 13-8-1969 by the Additional Sessions Judge,, Greater Bombay for the double murder of two brothers, Lal Chand Jagannath Yadav and Dullar Jaggi Yadav in Chinhavali Farm at Malad on the night between the 25th and 26th of August, 1968. Sindhi did not appeal against the order of his conviction. But the trial Judge made a reference under s. 374 of the Code to the High Court for confirmation of the death sentence. The reference came up for hearing towards the end of 1969. On 22-10-1969, the prisoner expressed a desire to be present at the hearing of his case before the High Court. Two Advocates, namely Shri D. M. Rane with Shri Mengde as the Senior were appointed as amicus curiae to defend the condemned prisoner in the High Court. After interviewing the prisoner in Jail on 8-1-1970 and 9-1-1970, the Advocate reported to the High Court that the accused was not able to communicate with them intelligently and rationally as he appeared to be insane. Counsel submitted an application to the High Court requesting that the accused be got examined by a Board ,of psychiatrists in order to determine as to whether he was or was not of unsound mind. The application was opposed on behalf of the State inter alia on the ground that s. 465 applies only to a trial before a court of Session. The High Court rejected this contention, and by its order, dated 14th January, 1970, directed the SurgeonGeneral, Bombay to constitute a Special Medical Board of three psychiatrists on the lines indicated in Rule 850 of the Bombay Jail Manual, to examine the accused and "determine whether the accused is of unsound mind, and, secondly whether in consequence of his unsound, ness of mind, he is incapable of making his defence in the proceedings before us". The Board was accordingly constituted. The Board deputed Dr. Balakrishna Laxman Chandorkar, Superintendent of the Mental Hospital to interview the accused. Dr. Chandorkar, consequently, had fourteen interviews with the accused and also examined the latter physically. The accused was sent, under Dr. Chandorkar’s directions, to several hospitals for special examinations. Dr. Chandorkar gathered the past history of the accused, also, in so far as it was relevant to determine the issue referred to him. The conclusion reached by Dr. Chandorkar. which he reported to the Board on 28-2-1970, was that the accused was suffering from Paranoid Schizophrenia and was of unsound mind and. in consequence. he was incapable of making his defence. On receiving the report of Dr. Chandorkar, the Special Medical Board also examined and inter"viewed the accused on five occasions. Their conclusion, as communicated to the High Court, was
"(1) Sindhi Dalwai alias Raman Raghav
(Prisoner) is of unsound mind. He is
suffering from a psychosis called chronic
paranoid schizophrenia or paraphrase, the
latter being an old term for chronic paranoid
schizophrenia plus auditory hallucinations.
He is dangerous to the society and hence
certifiably insane.
(2) Sindhi knew the nature of the act i.e.
he knew that he was killing human beings.
(3) He did know that what he did was wrong
and contrary to the law of the land but he
firmly believed that what he was doing was
right and in tune with the law of "kanoon...
whose law according to him was obligatory. for
him to follow.
(4) There is such a degree of unsoundness of
mind resulting in such a degree of defect of
reason that he is in-capable of co-operating
with and instructing his defence counsel in
the conduct of the trial and court proceedings
and he is incapable of making his defence in
the proceedings before the High Court. The
reasons for this incapability are
(a) Complete lack of insight into his
illness;
(b) firm and unshakable delusions that only
the law of "Kanoon" matters and the law of
this world does not apply to him and hence his
inability to participate in the court
proceedings;
(c) his complete lack of realization of the
gravity of the crime and the seriousness of
his death sentence;
(d) his judgment is so much influenced by
his delusions and hallucinations that he is
incapable. of rational thinking and
behaviour." After examining Dr. Marfatia, the Chairman of the Board and Dr. Chandorkar, the Mental Specialist, as court witnesses, the High Court held
"The prisoner is clearly of unsound mind and
in consequence thereof he is unable to make
his defence. Therefore proceedings in the
confirmation case will have to be postponed
and in the meantime it-will be necessary to
direct that the State Government do detain the
prisoner in safe custody in Yeravda
Central Prison." It is against this order,, dated 3-7-1970, that the State has come in appeal before this Court. Mr. Patel, learned Counsel for the appellant, assails the order of the High Court, postponing the proceedings under s. 465 Criminal Procedure Code, on these grounds :
(i) The operation of s. 465, is, in terms,
confirmed to the trial stage. The section
does not apply to proceedings before the High
Court, on reference unders. 374, as the
sameare post-trial proceedings;
(ii) The question as to whether the accused
person has the mental capacity to defend
himself or not, arises only at the pre-
conviction I stage before the Committal Court
or the trial court, because it is only at that
stage the accused person has a right to be
heard and lead evidence in defence. But in
proceedings on reference under s. 374, the
accused person has no right of audience before
the High Court, not even where the High Court
directs a further enquiry or the taking of
additional evidence under s. 375, nor where
any appeal of the accused filed through the
jailor under s. 420, comes up for hearing
along with the reference. It is another
matter that the High Court has the power, even
in such proceedings to hear the accused. For
this argument support has been sought from
certain observations of Madgaonkar A.J.C. in
Gul v. Emperor(1). In this connection, learned Counsel has pointed out that at the commencement of the trial before the Court of Session, also, a question was raised as to the mental capacity of the accused and thereupon, the trial Judge after making a due enquiry in accordance with the provisions of s. 465, recorded a clear-cut finding that the accused was then of sound mind and capable of understanding the nature of the proceedings and making a defence. This finding of the trial Judge, it is stressed, was not assailed before the High Court, and still stands unchallenged. Learned Counsel also tried to distinguish the decision of this Court in Vivian Rodrick v. State of- West Bengal(2) on the ground that in that case the convict had preferred an appeal against the order of his conviction, and, consequently, the observations of this Court in regard to the applicability of s. 465 Cr. P.C. to proceedings in reference axe merely obiter. In the alternative, it is submitted that those observations need reconsideration in the light of the arguments now advanced before us. Section 465 of the Code of Criminal Procedure,, 1898, runs thus
"(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
(1) A R 1921 sird 84.
(2) [1969]3 S.C.C.176
Court shaft, 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 the unsoundness
of mind and incapacity of the, accused shall
be deemed to be part of his trial before the
Court." It ’will be seen that s. 465, in terms relates to unsoundness of accused’s mind and his consequent incapacity to make defence, at the time of trial only. The question therefore is : Does the trial on a murder charge, end with the conviction and pronouncement of death sentence on the accused by the Court of Session? Or, does it ,continue till the reference under s. 374, is disposed of by the High Court ? Answer to this question was given by this Court, speaking through Govinda Menon J., as far back as 1956 in Jumman and ors. v. State of Punjab(1) in a telling passage thus
"It is clear from a perusal of these
provisions (ss. 374, 375, 376 and 377, Cr.
P.C.) that in such circumstances the entire
case is before the High Court and in fact it
is a continuation of the trial of the accused
on the same evidence and any additional
evidence and that is why the High Court is
given power to take fresh evidence if it so’
desires........... but there is a difference
when a reference is made under s. 374,
Criminal Procedure Code, and when disposing of
an appeal under s. 423, Criminal Procedure
Code, and that is that the High Court has to
satisfy itself as to whether a case beyond
reasonable doubt has been made out against the
accused persons for the infliction of the
penalty of death. In fact the proceedings
before the High Court are a reappraisal and
the reassessment of the entire facts and law
in order that the High Court should be
satisfied on the materials about the guilt or
innocence of the accused persons. Such being
the case, it is the duty of the High Court to
consider the proceedings in all their aspects
and come to independent conclusion on the
materials, apart from ;the view expressed by
the Sessions Judge."
(emphasis supplied) The same position was reiterated with emphasis by this Court in Surjit Singh and anr. v. State of Punjab (2). Even in Gul v. Emperor (supra), cited by Mr. Patel, Madgonkar A. J. C. expressed himself in a similar strain. What he said more than half a century back still retains its freshness and relevance, and may be extracted (1) AIR-1957 S.C.469. (2) Criminal Appeal No. 77 of 1968 decided on 15-10-1968.
"The worth and sanctity of human life are a
test and mark of civilized societies and are
increasingly reflected in the criminal
jurisprudence of England and of India. In
India, the Legislature has provided in
confirmation proceedings a final
safeguard............. This may perhaps
increase our responsibilities and add to our
labours; but no one would shirk the one or
grudge the other even in a case where the
liberty, much more where the life, of the
subject is concerned. This duty of judgment
is, however laid id the first instance upon
the Jury and the Trial Judge........ But
equally and with all this weight, this Court
in confirmation must finally weigh for itself
the whole evidence in the light of all the
arguments and confirm or otherwise according
to its own final conclusion on the guilt or
innocence of the sentenced person in the dis-
charge of the duty laid upon it by law." From the above conspectus, it emerges clear that so far as in accused person sentenced to death is concerned, his trial does not conclude with the termination of the proceedings in the Court of session. The reason is that the death sentence passed by the Court of Session is subject to confirmation by the High Court. A trial cannot be deemed to have concluded till an executable sentence is ,passed by the competent court. Viewed from that stand-point, the confirmation proceedings under ss. 374, 375 and 376, Chapter XXVII of the Code of 1898, are, in substance, a continuation of the trial. Nor is it correct to say that in such confirmation proceedings the High Court can arbitrarily refuse to hear the accused either In person or through Counsel or other agent. In Vivian Rodrick’s case (supra), the appellant was convicted under S. 302, Penal Code by the Court of Session and sentenced to death. The Sessions Judge made a reference under s. 374 for confirmation of the death sentence. The convict ’appealed against the order of his conviction andsentence. The High Court dismissed the appeal, accepted the reference and confirmed the conviction and the sentence. In an appeal by special leave brought before this Court, it was inter alia contended that the proceedings taken in the appeal before the High Court were void for non-compliance of s. 465. What this Court said in repelling that contention, being equally applicable to what has been canvassed before us on behalf of the appellant. may usefully be extracted :
"We. are of the view that it is not necessary
for us, in this case, to express only opinion
on the applicability, or otherwise, of the
provisions of s. 465, Cr. P.C. to appeals.
For, on the facts of the case, we are inclined
to accent 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 on 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........ Whatever may be the legal
position-regarding the applicability of s. 465
Cr. P.C. 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...... in our opinion, when the re-
port 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 be
entitled had he been of unsound mind at the
time of the trial." In the present case no appeal was filed by the prisoner before the High Court. It is therefore unnecessary for us to examine whether the provisions of s. 465, in terms, or, in principle, apply, to an appeal by the condemned prisoner before the High Court. Suffice it to say that the expression "at his trial" occurring in S. 465 has to be liberally construed in a manner which is not repugnant to the fundamental principle of natural justice conveyed by the maxim Audi alteram partem, audiatur el altera pars. In the light of what has been said above we negative the legal contentions raised by the appellant-State. The next contention of Mr. Patel is that the High Court left the decision of both the points, viz., (1) whether the accused was of unsound mind and (2) whether in consequence he was incapable of making his defence, almost entirely to the Medical Board. Such delegation which gives the proceeding the colour of trial by Doctors is not permissible under the law. Reference on this point has been made to R. v. Pondole(1). On merits also, it is maintained, the findings on the aforesaid issues, are wrong, as the accused fully knew that he had, been tried and sentenced to death for the murders on question. Emphasis is has been laid on the fact that the accused had on 18-12-1969 expressed in writing through jailor, his desire to be present in the High Court at the time of the hearing of his case. Counsel has referred extensively to the statements of Doctor Chandorkar and Dr. Marfatia and contended that everything about the mental condition of the accused even according to these medical’ experts was normal excepting that he was suffering from the delusion that he ’had been ordained, by some higher "Kanoon" to commit these murders. According to, Mr. Patel, insanity judged by clinical standards is different from insanity determined by legal (1) [1959] All E.R. 418. standards. It is urged that since the accused fully knew the nature of the criminal acts he had committed and the proceeding against him, it could not be said that he was incapable of making his defence. It is true that the High Court had by its order dated 14-11970, referred both the issues in regard to the mental capacity of the accused to the Medical Board, and has given due weight to their opinion. But it is not correct to say that the High Court accepted the ipse dixit of the medical experts. It examined Dr. Marfatia and Dr. Chandorkar as court witnesses. These experts gave detailed and cogent reasons in support of their opinion. The High Court meticulously Considered their evidence and thereafter recorded its own findings on the crucial issues. We have ourselves examined the evidence rendered by these two mental experts in the High Court. We are satisfied that the conclusion arrived at by the High Court in regard to the mental capacity of the accused on the basis of this evidence is correct. In the result, the appeal fails and is dismissed. P.H.P. Appeal dismissed.