Hon’ble J.J. Munir, J.—A second bail application brought by the applicant, Kanhaiya in Case Crime No. 1007 of 2016, under Sections 498A, 304B, 201 IPC and Section 3/4 DP Act, PS Kotwali, District Farrukhabad confronted this Court with certain questions affecting the exercise of jurisdiction under Section 439 CrPC (the Code) in relation to accused of unsound mind who has unsuccessfully invoked the jurisdiction of the Magistrate or the Sessions Judge under Section 330 of the Code.

2. It would be profitable to better appreciation of the questions about jurisdiction that have confronted this Court if a short survey of facts leading to those issues is made.

3. The applicant Kanhaiya filed Criminal Misc. Bail Application No. 2513 of 2017 in case crime last referred under Section 439 of the Code after failing before the learned Sessions Judge, also under Section 439 of the Code, to secure bail. The bail application last referred which was a first before this Court on behalf of the applicant Kanhaiya came up for orders before Hon’ble Pratyush Kumar, J. on 26.7.2017. His Lordship was of opinion that the said application by the applicant who had claimed to be a person of unsound mind would not be maintainable under Section 439 of the Code at all and the applicant would have to invoke the provisions of Section 330 of the Code to seek his release on bail pending investigation or trial.

4. It was pointed out that Chapter XXV of the Code embodies special provisions made with regard to accused persons of unsound mind. Sections 328, 329 of the Code spell out the procedure to be followed in cases of enquiry and trial respectively in relation to such persons whereas Section 330 embodies provisions for bail to this very special class of accused. His Lordship, therefore, proceeded to dispose of the first bail application brought by the applicant under Section 439 of the Code as not maintainable super-added with an observation that appropriate proceedings may be taken by the applicant to stake his claim for bail in accordance with Section 330 of the Code. The accused having failed before the Sessions Judge with his application under Section 439 of the Code earlier in this case that is exclusively triable by Court of Sessions and which for Magistrate exercising jurisdiction under Section 437 of the Code is forbidden ground, made an application in the first instance to the Sessions Judge being Bail Application No. 203 of 2017 invoking the provisions of Section 330 of the Code. The learned Sessions Judge dealt with application somewhat in accordance with the provisions of Chapter XXV by sending the applicant to the Mental Hospital, Varanasi for re-evaluation of his mental health. It appears that the learned Sessions Judge also took note of the fact that the earlier bail application on behalf of the applicant (under Section 439 of the Code) had been rejected on 6.3.2017 by learned Additional Sessions Judge, Court No. 9, Farrukhabad.

5. The learned Additional Sessions Judge further took note of the fact that the doctor at the Mental Hospital, Varanasi had opined him to be an accused of unsound mind and, therefore, ordered that the accused be sent under a custody warrant to the Mental Hospital, Varanasi, where the Judge has noticed in his order that the accused-applicant was being treated. He opined that there was no good ground to release the applicant on bail and rejected the bail application brought by the applicant on occasion, under Section 330 of the Code, vide order dated 9.11.2017.

6. Confronted with the rejection of his bail application under Section 330 of the Code by the learned Sessions Judge, the applicant once again invoked the jurisdiction of this Court under Section 439 of the Code through the present application that was filed on 28.1.2018 as a first bail application, presumably much confounded by the baffling uncertainties of jurisdiction that the learned counsel was confronted with. This Court, however, by an order dated 31.1.