The central legal point established in the judgment is the requirement for a detailed psychological test to determine the accused's capability of standing trial and making a meaningful defence, especially in cases involving mental retardation.

Thomas P. Joseph, J.

Petitioner is accused in CP No. 33 of 2009 of the Court of learned Judicial First Class Magistrate-I, Ernakulam for offence punishable under Section 302 of the Indian Penal Code (for short, "the IPC"). During the course of committal proceedings it was brought to the notice of the learned Magistrate that petitioner, being mentally retarded is unable to make his defence. Thereon learned Magistrate conducted enquiry as provided under section 328 of the Code of Criminal Procedure (for short, "the Code") and on finding that petitioner is able to make bis defence committed the case for trial to the Court of learned Sessions Judge as per Annexure-A7, order dated September 20, 2010. Proceedings before the committal Court and Annexure-A7, order are challenged in this proceeding at the instance of petitioner. Learned counsel has contended that it was mandatory to ascertain whether petitioner on account of mental retardation is capable of making his defence, such enquiry has not been conducted by appropriate authorities and hence proceedings before committal Court and Annexure-A7, order are vitiated. Learned counsel contends that petitioner is entitled to have a fair trial which includes his ability to understand the case against him and make a proper defence. Learned counsel has placed reliance on the decision in Madhavan Nair v. State of Kerala, 1978 KHC 37 : 1978 KLT 156 : ILR 1978 (1) Ker. 485 and the observations at page 159, in particular. I have heard learned Public Prosecutor as well in the matter.

2. Charge against petitioner is one under Section 302 of the I.P.C. It is stated that petitioner was staying at Snehanilayam which is an institution for mentally challenged persons from 1984 to 1991. Annexure-A1 is the certificate issued from the said institution stating so That certificate also states that IQ of petitioner shows that he is mentally challenged of moderate degree and that (notwithstanding his biological age) his mental age is four and a half years Obviously in the light of the said situation learned Magistrate directed an enquiry to be conducted into the mental capacity of petitioner to stand trial. He was referred to a Civil Surgeon who suggested that his examination at Mental Health Centre is required. Petitioner was referred to the Mental Health Centre. The Assistant Surgeon attached to that institution, according to the petitioner without conducting proper examination reported that petitioner is fit for trial. Petitioner thereon filed CMP No. 2003 of 2009 to send him for further examination to the Mental Health Centre. Learned Magistrate allowed that petition by Annexure-A2, order dated October 21, 2009. Before doing so, learned Magistrate has also examined the Assistant Surgeon as CW1 and marked her report as Ext. C1. Learned Magistrate was of the view that deposition of CW 1 would show that she had not conducted any medical test to determine mental state of petitioner and instead, opinion was based on mere clinical observation and examination. Learned Magistrate thought that it is necessary to have a detailed study of the mental state of petitioner, allowed CMP No. 2003 of 2009 and referred petitioner to the Superintendent of Mental Health Centre, Thrissur. The latter was directed to constitute a Medical Board consisting of a Neurologist, Psychiatrist and a Psychologist to evaluate mental condition of petitioner. The Superintendent was directed to file a report before the Court after examination. Accordingly petitioner was sent to the Medical Board constituted by the Superintendent of Mental Health Centre and he was examined by that Board. The Superintendent of Mental Health Centre submitted Annexure-A3, report dated April 12, 2010 stating that physiological and psychological evaluation was done "clinically" and that there is evidence of mild retardation. Petitioner was called for a psychological testing of quantification of his IQ on 09/04/2010 but he was not brought for that test. Based