- (1.) THIS is reference by a Judicial Magistrate First Class, Abu Road under sec. 341 of the Code of Criminal Procedure and has arisen under the following circumstances.
(2.) ONE Samant Singh, Prohibition Inspector filed a complaint against two accused Narottam Lal and Rati Lal under sec. 186 I. P. C. The case was registered and the accused were summoned. On the first date of hearing, i. e. the 5th February, 1960 the Magistrate recorded in the proceedings that the statements of accused Rati Lal and Narottam Lal were recorded in S. R, No. 43/60 and both of them denied the charge. Thereafter he recorded the prosecution evidence on three different hearings. On the 2nd May, 1960 statement of the accused Narottam was recorded. With regard to Rati Lal, it was observed that Rati Lal's statement could not be recorded on account of his dumbness and deafness and a consequent inability to understand things. The Magistrate on a consideration of the evidence on the record came to the conclusion "that an offence under Sec. 186 I. P. C. is clearly made out". However without recording a formal conviction and without disposing of the case against Narottam he referred the case to this Court under sec. 341 Cr. P. C. , on the ground that the accused Rati Lal is deaf and dumb. After going through the order of reference and hearing Mr. Vishan Lal for the accused and Mr. Zabar Raj for the State, I have come to the conclusion that the reference must be rejected. In the first instance, the Magistrate did not adopt a proper procedure at the initial stage. The proceedings dated 5th February, 1960 show that till that date he had no idea or information that the accused Rati Lal was dumb or deaf. On the other hand it was clearly stated in them that the statements of the accused were recorded in S. R. No. 43/60 and both of them pleaded not guilty. I fail to see how Ratilal accused's statement could be recorded if he is dumb or deaf. Unfortunately the statement of the accused Ratilal, alleged to have been recorded, is not on record. The possibility of the Magistrate having made wrong statements in the proceedings cannot be completely eliminated. Be that as it may, there is nothing to indicate that the Magistrate proceeded with the trial with a knowledge that "ratilal accused is deaf and dumb and cannot understand proceedings. " Then there is the significant omission on the -part of the Magistrate to hold a proper inquiry and arrive at a definite finding that the requirement of the law as contained in sec. 34l Cr. P. C. are satisfied and warrant a reference to this Court. It is evident on the proper construction of the language of the section that the fact that the accused is deaf and dumb dose not per se justify a reference. Under sec. 341 Cr. P. C. a reference is competent only on a definite finding that the accused cannot be made to understand the proceedings on account of deafness and dumbness. Such a finding should not be arrived at and recorded lightly and a proper inquiry should precede the finding. It will be desirable and appropriate if the Magistrate takes steps to keep the accused under observation of a competent expert Medical Officer and to examine the Medical Officer to give his opinion on the inability or otherwise of the accused to understand the proceedings. If any other kind of evidence is available and forthcoming it should also be brought on record. It is a common experience that the deaf and dumb persons are often able to communicate with their relatives through signs and indeed it may not be possible for them to have lived to maturity without such communications. In this background it becomes the duty of the Magistrate to find out whether the accused, (if he is deaf and dumb,) has any friends and relatives, who are accustomed to communicate with him, his antecedent and ordinary mode of life and the manner in which he was communicated with, in the ordinary affairs of life. The Magistrate should attempt to get into communication with the assistance of friends or relatives. As observed by Davis C. J. in Isso S/o Gamen vs. Emperor (1) "a proper endeavour should be made to enable him to understand the proceedings before sec. 341 is applied and only when such endeavour has failed and the learned Judge is satisfied that he cannot be made to understand the proceedings by means of signs does sec. 341 properly apply. " The Magistrate made no inquiry, no endeavour on the lines indicated above and without recording proper legal findings made this reference which, in my opinion, is entirely misconceived. Another error committed by the Magistrate is that the case of both the accused has been referred to this Court. This is not warranted by sec. 341 Cr. P. C. In Isso S/o Gamen vs. Emperor (1) on such a reference being made Divatia, J. observed as follows- "this section cannot be construed to mean that in a case where there are two accused and one of them though not insane is not able to understand the proceedings, the Magistrate should refer the proceedings, of both to the High Court and I think the High Court under the provisions of sec. 341 would have no jurisdiction to pass any order with regard to the accused who is able to understand the proceedings. " Reference of both the accused is obviously not justified. Lastly there is the formal defect that the Magistrate did not record any conviction before making the reference. He did of course express opinion that the offence has been proved against the accused but this is not sufficient. The law requires that the Magistrate or the Court should record formal conviction but should not pass a sentence and refer the case to High Court for appropriate orders. From what has been stated above, I am of the opinion that the reference is not proper and regular and does not deserve to be accepted. The reference is consequently rejected. The case is returned to the Magistrate for disposal in accordance with law in the light of the above principles. .;