The main legal point established in the judgment is the mandatory requirement of holding a due inquiry and recording a finding on a plea of insanity as per the provisions of the Code of Criminal Procedure.

B.N.P.Singh, J.

1. This refers to Death Reference No. 6 of 2000 sent to this Court for confirmation of sentence and also Cr. Appeal No. 515 of 2000, preferred by the convict-appellant raising a question of defence of insanity for an offence of matricide u/s. 302 of the Indian Penal Code and also questioning the legality and validity of the order of conviction and capital sentence, as recorded against him by the learned 12th Additional District & Sessions Judge, Saran, Chapra, in Sessions Trial No. 318 of 1993. Gravamen of the charges against the appellant was about chopping off both the hands and head of his mother, pursuant to which, he was apprehended by the Police and also the public while carrying the cut parts of the body, of his mother, kept in a gunny bag. The appellant allegedly confessed his guilt before the Police and public, pursuant to which, prosecution was launched against him and the trial eventually commenced for consideration of his guilt. In the midst of trial, the appellant raised the plea of insanity. A medical board under the direction of the trial Court was constituted which found the appellant mentally abnormal and a psychiatric patient. He had also advised to refer the appellant to Mental Hospital, Ranchi, for further treatment and in view of finding of the Board, the trial was kept in abeyance for some period. Thereafter, the appellant was sent to Mental Hospital, Ranchi and on his return, he was produced in Court from Jail custody. Thereafter, statement of the appellant was recorded and eventually trial terminated after examination of the defence witnesses and the trial Court in its considered opinion, recorded verdict of guilt u/s. 302 Indian Penal Code, 1860 against the appellant and sentenced him to death.

2. This proposition of law has been consistently crystallised in catena of decisions of the Court that, as enjoined u/s. 329 of the Code of Criminal Procedure (Cr.P.C.), once a plea of insanity is raised by the accused, it must be determined by recording evidence adduced in support and rebuttal thereof and the finding, one way or the other, must be recorded, and without holding due inquiry and recording a finding thereon, framing of charges and commencement of the trial was violative of mandatory provisions of sec. 329 Cr.P.C. There are other aspects of the matter which needs to be taken notice of that when a plea of insanity is set up, firstly, the Court has to consider whether at the time of commission of offence, the accused, by reason of madness of mind, was incapable of knowing the nature of act that he was doing what was either wrong or contrary to law. As was held in a case reported in BLJR 1977 Cri.L.J. 1765 Sarju Marandi and Ors. V/s. State of Bihar, distinction between incapacity at the time of doing the act charged and incapacity at the time of trial is apparent. While both are induced by unsoundness of mind, the former is substantive which excludes the offender u/s. 84, Indian Penal Code, 1860 , the latter only affects the procedure and merely postpones the trial, which must be resumed when incapacity, disappears on a future date. As a preliminary condition to the applicability of sec. 465 Cr.P.C, it must appear to the Court, before which an accused is brought, that he is of unsound mind and consequently incapable of making his defence. If no abnormality is disclosed, the Court should proceed with the trial and no action under Secs. 464 and 465 Cr.P.C. is called for.

3. However, certain orders passed by the Court in the midst of trial and required to be taken notice of. When the accused was put in dock for framing of charge, it appears from the order dated 19th June, 1993, passed by the Court below that though several times, questions were put to the appellant as to whether he had committed the offence, as charged against him but he kept silence and did not utter a word. The Court noticed that the appellant was a bit mentally upset and hence directed the jail authority to take