JUDGMENT

1) The instant reference, in terms of Section 341 of J&K Cr. P.C., has been made by the Judicial Magistrate 1st Class, Akhnoor with report of the circumstances of the case.

2) It appears that on 28.12.2014, one Captain Ankush Luthra of 28 Rajput Battalion submitted a written report with Police Station, Khour stating therein that a Pakistani National was apprehended near post in their area, around Manowar Tawi River. As per the report, the individual was caught by the patrolling party of 28 Rajput Battalion after tracing the movement of the individual crossing the river from Pakistan side at 17.15 hours on 27.12.2014. After checking the individual for any weapons and arms, he was found to be in possession of Rs. 2640/- of Pakistani currency, one razor and one slip with Urdu written on it, two small bags, in which currency notes and razor were found. The apprehended individual was later brought to the Unit and thereafter, brought to the Police Station, Pallanwala and handed over to the Police. Upon enquiry, the Police found that the individual had crossed the border from Pakistan towards India without any passport or travel document. FIR No. 77/2014 for offences under Section 2/3 of Egress and Internal Movement Control Ordinance, 1948 A.D. (hereinafter to be referred as „EIMCO”) was registered and the investigation was set into motion.

3) The individual was subjected to interrogation and statements of the witnesses under Section 161 Cr. P.C. were recorded. It was found that the individual is deaf and dumb, as such, he could not be interrogated. He was subjected to medical checkup and ultimately offences under Sections 2/3 of EIMCO were found established against him and the challan was laid before the learned trial court.

4) When the challan was presented before the learned trial court, it was found that the accused could not communicate. A certificate issued by the Principal, Hearing Handicapped School (Deaf and Dumb) was produced, according to which, the accused was able to hear high pitch sounds but was unable to speak as he showed signs of autism. It was also provided in the certificate that the accused does not know sign language being illiterate and totally dumb.

5) The trial court, it seems provided a Legal Aid Counsel to the accused and Principal, Hearing Handicapped School (Deaf and Dumb) was asked to provide an interpreter for assistance of the Court. The Principal of the aforesaid school appeared before the Court and he tried to communicate with the accused. According to him, the accused was totally deaf and dumb and not able to communicate. As per his opinion, the accused is an illiterate person having crossed the border unintentionally. It was also found that all signs made by the accused were not properly understood. It seems that the accused was subjected to medical checkup by the Board of Doctors and as per report dated 03.11.2015, he was found to be suffering from serious hearing loss in both the ears and he was unable to produce understandable speech but was not a mentally retarded person.

6) In view of the above, the trial court proceeded under Section 341 of J&K Cr. P.C. and examination of the accused under section 242 of J&K Cr.P.C. was dispensed with and the trial was commenced.

7) During trial of the case, the prosecution examined as many as six witnesses, who were cross-examined on behalf the accused by the Legal Aid Counsel. Having regard to the handicap of the accused, his statement under section 342 J&K Cr. P.C. was also dispensed with.

8) After appreciation of the evidence, the learned trial court came to the conclusion that offences under Sections 2/3 of EIMCO are established against the accused. Accordingly, reference in terms of Section 341 Cr. P.C. has been made to this Court.

9) I have perused the record of the trial court as well as the order of reference.

10) Section 341 of Cr.P.C provides for the procedure where the accused does not understand proceedings. It reads as under:

“341.Procedure wher