Case Of Accused Who Can't Be Made To Understand Proceedings Can Be Referred To HC U/S 341 J&K CrPC Only After He/She Is Convicted: JKL HC

In a significant observation, the Jammu and Kashmir and Ladakh High Court has observed that the case of an accused, though not insane, but who cannot be made to understand the proceedings, can be referred to the High Court under section 341 of Jammu and Kashmir CrPC only after the trial has resulted into his/her conviction.

It may be noted that Section 341 of J&K CrPC deals with the procedure where the accused does not understand proceedings and it corresponds with Section 318 of The Code Of Criminal Procedure, 1973 and it says thus:

"—If the accused, though not insane, cannot be made to understand the proceedings, the Court may proceed with the inquiry or trial, and, in the case of a Court other than a High Court, if such inquiry 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 case before the Court

The bench of Justice Sanjay Dhar was dealing with a reference made to it under Section 341 of the J&K CrPC by learned Special Judge, Anticorruption, Kashmir Srinagar.

In the order of reference, the Special Judge observed that one of the accused, namely, Ghulam Rasool Joo, who is facing trial before the court for offences under Section 5(1)(c)(d), 5(2) of Prevention of Corruption Act read with Section 120-B, 467, 468, 409 RPC, had been found to be suffering from Vascular Dementia and that he is not in a position to understand the legal proceedings.

It had been further observed by the special judge in his reference that as per the opinion rendered by the Medical Board, the said accused is not fit to stand the trial and therefore, in accordance with Section 341 of J&K CrPC, his case was referred to the High Court.

High Court's observations 

At the outset, the Court noted that Section 341 essentially says that if the accused, though not insane, cannot be made to understand the proceedings, the Court can proceed with the inquiry or trial and if such inquiry results in a commitment or results in a conviction, the proceedings have to be forwarded to the High Court with a report of the circumstances of the case.

Further, noting that the proceedings before the Special Judge are not in the nature of committal proceedings and that the trial of the case is currently pending before the special judge, the Court remarked thus:

"A perusal of the order of reference passed by the learned Special Judge reveals that the trial of the case is still going on and it has not been concluded, which means that it has not resulted in the conviction of the aforenamed accused as yet. It is only in case the trial of an accused, though not insane, who cannot be made to understand the proceedings, results in the conviction that a reference is required to be made to the High Court. The reference made by the learned Special Judge is, therefore, premature and cannot be accepted."

For the foregoing reasons, the reference was DECLINED and the Special Judge was directed to proceed in accordance with the provisions of Section 341 of J&K Cr. P. C or in accordance with the provisions contained in Chapter XXXIV of the J&K Cr. P. C which relates to lunatics, as the case may be.

Case title - State through P/S Vok v. Dr. Fayaz Ahmad Banday & others [Ref(Crl)No.01/2022]

Case citation: 2022 LiveLaw (JKL) 18

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