Judgment

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?

2. 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 Chinchavali 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.

3. 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. H. Bane 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 Section 465 applies only to a trial before a Court of Session. The High court rejected this contention, and by its under, dated, 14th January 70 directed the Surgeon General Bombay to constitute a Special Medical Board if three psychiatrists on the lines indicated in R. 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 defece in the proceedings before us". The Board was accordingly constituted. The Board deputed Dr. Balakrishna Laxman Chandorkar, Superintendent of the Mental Hospital to interview with 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 Dalwi alias Raman Raghav (Prisoner) is of unsound mind. He is suffering from a psychosis called chronic paranoid schizophrenia or paraphrenia, the latter being an old term for chronic paranoid schizophrenia plus auditory hallucinations. He is dangerous to the society and hence certifiably insane.

(2) Shidhi 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 incapable 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 proce