- (1.)RULE. Rule made returnable and heard forthwith by consent of the parties.
(2.)BY present Application, the applicants challenges the order dated 1/12/2006 passed by learned Additional Sessions Judge, Latur thereby rejecting the application of the present applicants for separation of the trial of the accused No.1 Rajaram Dhone from the trial of other accused and for necessary enquiry for finding out whether said accused Rajaram is of unsound mind.
It is submitted on behalf of the applicants that applicant No.1 Rajaram is of unsound mind and living his life as lunatic. It is submitted that on account of him trial has protracted and as such other accused are suffering as they are in jail. It is therefore submitted that it is necessary that enquiry as contemplated under Section 328 of the Criminal Procedure Code be directed and if it is found that the accused No.1 is of unsound mind, then his trial be separated from the other accused.

(3.)THE Apex Court in the Case of Dr. Jai Shankar (Lunatic) through Vijay Shankar brother guardian vs. State of Himachal Pradesh, reported in AIR 1972 Supreme Court 2267, has observed thus:-
"Where in a murder trial, the accused made an application under Section 464 before the Magistrate, raising the question as to the unsoundness of mind of the accused, the Magistrate is bound to inquire, before he proceeds with the inquiry before him, whether the accused is or is not incapacitated by the unsoundness of mind from making his defence. Such a provision clearly is in consonance with the principles of fair administration of justice."
The Apex Court has further held that:
"Where the Magistrate, without making any adequate or satisfactory enquiry enjoined by Section 464 at the threshold, straightway proceeded with the committal proceedings, the committal proceedings as also his order committing the accused to the sessions Court for trial were both vitiated."