This Original Petition has been filed challenging Ext. P2 order passed by the 3rd Additional Sessions Court, Kozhikode (for short, 'the Court below) in Crl.M.P No. 709/2019 filed under Section 329 of the Cr.P.C. The petitioner is the accused in S.C. No. 89/2019 on the file of the Court below. He being a mentally retarded person, is represented by his mother. The accused faces trial for the offences punishable under Sections 323, 324, 308, 294(b) read with 34 of the IPC.

2. I have heard Sri. V. Mahendranath, the learned counsel for the petitioner and Smt. T. V. Neema, the learned Senior Public Prosecutor.

3. The mother of the petitioner filed CMP No. 709/2019 at the court below invoking Section 329 of the Cr.P.C. alleging that the petitioner is a Psychiatric patient and he is undergoing treatment for Depressive Disorder with Obsessive Compulsive symptoms and is unfit to face the trial. Accordingly, she prayed to conduct an enquiry with regard to the unsoundness of mind of the accused before the commencement of the trial. The Court below after conducting necessary enquiry as contemplated under Section 328 of the Cr.P.C., allowed the petition and referred the accused to the Medical Board to ascertain whether the accused is suffering from unsoundness of mind or not and also to ascertain whether the accused is fit to stand for trial or not. Ext. P2 is the order. The petitioner herein challenges the said order on the ground that the Court below instead of referring the accused to a Psychiatrist or Clinical Psychologist to find out whether he is suffering from unsoundness of mind or not, directly referred the accused to the Medical Board.

4. Section 329 of the Cr.P.C. deals with procedure in case of person of unsound mind tried before the Court. S. 329. (1) says that, if it appears to the Magistrate or Court of Session that the accused is a person of unsound mind and consequently incapable of making his defence, the Magistrate or Court shall, in the first instance, conduct a preliminary enquiry regarding such unsoundness and incapacity and shall record a finding to that effect. The Court below conducted a preliminary enquiry. After examining the medical records, the Court below prima facie found that the accused is undergoing treatment for Obsessive Compulsive symptoms from 2011. The Court below further found that for the purpose of determining the question as to whether the accused is fit to stand for trial, he has to be referred to Medical Board.

5. Section 329 (1A) says that, if during trial, the Magistrate or Court of Sessions finds the accused to be of unsound mind, he or it shall refer such person to a psychiatrist or clinical psychologist for care and treatment, and the psychiatrist or clinical psychologist, as the case may be, shall report to the Magistrate or Court whether the accused is suffering from unsoundness of mind. The proviso to the said sub section says that, if the accused is aggrieved by the information given by the psychiatrist or clinical psychologist, as the case may be, to the Magistrate, he may prefer an appeal before the Medical Board. Section 329.(2) says, if the Magistrate or Court is informed by the psychiatrist or clinical psychologist, as the case may be, that the accused is a person of unsound mind then the Magistrate or Court shall further determine whether unsoundness of mind renders the accused incapable of entering defence and if the accused is found so incapable, the Magistrate or Court shall record a finding to that effect and shall examine the record of evidence produced by the prosecution and after hearing the advocate of the accused but without questioning the accused, if the Magistrate or Court finds that no prima facie case is made out against the accused, he or it shall, instead of postponing the trial, discharge the accused and deal with him in the manner provided under Section 330. If the Magistrate or Court finds that a prima facie case is made out against the accused, he shall