The trial court is required to try the fact of unsoundness of mind and incapacity of the accused to make his defence before the start of the actual trial, and failure to do so vitiates the trial.

KULWANT SINGH TIWANA, J.

1. Gurjit Singh alias Sainti son of Atma Singh, resident of Nabha, appellant was tried and convicted under S. 302, Penal Code, for committing the murder of Nand Ram at Nabha on 11th of Aug. 1983 at 4-10 p.m. He has been sentenced by the learned Sessions Judge, Patiala to undergo life imprisonment and pay a fine of Rs. 500.00 for this offence. In default of payment of fine he has been further directed to undergo rigorous imprisonment for one year. The appellant has contested the order of conviction and sentence through this appeal.

2. During the course of hearing of this appeal, the question which came to the fore was whether in the face of the plea of insanity raised by the appellant, the learned trial Court acted in violation of S. 329 of the Criminal P.C. 1973, hereinafter referred as the Code, by not trying the fact of unsoundness of mind and incapacity of the appellant to make his defence before the start of the actual trial.

3. As this is a preliminary question and in case of its determination in favour of non-compliance of the provisions of S. 329 of the Code, the trial is to vitiate, we need not refer to the evidence, in the case, on merits. It may, however, be noted that the appellant has led evidence in defence that he was mentally unsound prior to the commission of the offence and also subsequent thereto. To properly appreciate the case, the steps taken by the learned trial Judge and the orders made having a bearing on the plea of insanity and its decision, are to be referred in detail

4. The order dated 19th of Dec. 1983 on the trial Court file reveals that the counsel for the appellant, who was appointed on State expense, made an application for medical examination of the appellant, as due to his insanity he could not give him (the counsel), the instructions. On 21st of Jan. 1984, the Public Prosecutor filed a reply to the application made on behalf of the appellant that he be got medically examined. The learned trial Court on that date directed the appellant to produce evidence to prove his insanity. On 4th of Feb. 1984, Dr. Gurmeet Singh, Professor and Head of the Psychiatry Department, Rajendra Hospital, Patiala, summoned by the appellant, appeared and stated that he could not give his opinion unless the appellant was admitted as an indoor patient for about a week. The learned trial Judge directed the jail authorities to arrange for the admission of the appellant as suggested by Dr. Gurmeet Singh. After that the report of Dr. Gurmeet Singh was received in court and an ad interim order dated 13th of Mar. 1984, which contains the extract of the opinion of Dr. Gurmeet Singh, was passed, which is :-

"The accused is facing trial in a case under S. 302, IPC. On 19-12-1983, the accused filed an application through his counsel Shri D. P. Singh Anand, Advocate, Patiala for referring him to Psychiatry Department to determine that he was suffering from insanity. He attached with the application some photostat copies regarding his illness. On that application, he was referred to the Psychiatry Department of Rajendra Hospital, Patiala, from where a report has been received to the following effect :-

Shri Gurjit Singh son of Shri Atma Singh, undertrial was referred to Psychiatry Department from Central Jail, Patiala and was admitted for observation and mental examination from 11-2-1984 to 20-2-1984. He was examined by Dr. Gurmeet Singh, the Registrar, Dr. Paramjit Singh, Dr. S. R. Tiwari and Psychological testing done by Miss Monika Mehra. I am of the opinion that he is suffering from Chronic paranoid schizophrenia, a form of chronic mental illness which is characterised by delusions of persecution, hallucinations and inappropriate emotional reaction and impulsive behaviour. During his admission the patient was very suspicious, evasive and uncooperative in giving details about himself except that people are against him and doing things to harass or harm him. He requires long term psychiatric t