State of Maharashtra Vs. Sindhi @
Raman  INSC 38 (19 February 1975)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
CITATION: 1975 AIR 1665 1975 SCR (3) 574 1975
SCC (1) 647
CITATOR INFO :
RF 1978 SC1675 (223) E 1980 SC 898 (159)
Sec. 374 and See. 465 of the Cr. P. Code
1898--When does a trial conclude if the Sessions Judge passes death sentence
and refers to High Court for confirmation--Whether it is continuation of
trial--Interpretation of statute--Liberal construction to avoid repugnancy with
principles of natural justice.
The respondent was sentenced to death by the
Additional Sessions Judge for double murder. He did not file any appeal. The
trial Judge made a reference to the High Court, for confirmation of death
sentence. Two advocates were appointed Amicus Cuiae to defend the respondent.
After interview with the respondent the advocates reported to the High Court
that the respondent appeared to be insane. He was examined by a Medical Board
consisting of 3 Psychiatrists. According to the Medical Board he was not
capable of rational thinking or behaviour. The High Court came to, the
conclusion that the respondent was clearly of unsound mind. The High Court,
therefore, postponed the proceedings in the confirmation case. On appeal to
this Court by State, it was contended;
(1)The provision regarding postponing the
proceedings if an accused is found to be of unsound mind as contained in
section 465 of the Criminal Procedure Code is confined to the trial stage and
does not apply to the proceedings before the High Court on reference as the
same are post-trial proceedings.
(2)In proceedings on reference under section
334 the accused has no right of audience before the High Court.
(3) The High Court was wrong in delegating
its powers to determine whether the responder, was of unsound mind to the
HELD : (i) As far as an accused person
sentenced to death is concerned, his trial does not conclude with termination
of the proceedings in the Court of Session, since the death sentence passed by
the Court of Session is subject to confirmation by the High Court, the trial
cannot be deemed to have concluded till an executable sentence is passed by a
competent court. The confirmation proceedings are in substance a continuation
of the trial. Expression ,.at his trial". occurring in section 465 hoes to
be liberally construed in a manner which is not repugnant to the fundamental
principles of natural justice. [579D-E; 58OD-B ] (2) In confirmation
proceedings the High Court cannot arbitrarily refuse to hear the accused either
in person or through counsel. It is wrong to state that the High Court accepted
the ipse dixit of the medical experts. 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.
[581B-D] The decision in Yivian Rodrick v. State of West Bengal  3 S.C.C.
The decision in cases of Juman & Ors. v.
State of Punjab A.I.R. 1957 S.C. 469 and Surjit Singh and Anr. v. State of
Punjab. Criminal Appeal No. 77 of 1968 decided on 15-101968 applied.
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
B. R. Agarwala, for the Respondent.
575 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 Surgeon General, 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
unsoundness 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 interviewed 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
(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.
577 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
(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 were 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) 3 S.C.C.176 578 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
579 "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 discharge 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 and sentence. 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 580 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 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 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,
audiaturel 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)  All E.R.
581 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
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
P.H.P. Appeal dismissed.