A.B. Mahammad vs Emperor

The Sessions Judge finds that the accused took away the coat of the girl but acquits him as he was of opinion that the accused was insane when

he committed the act. Reading the judgment as a whole, I think there is a specific finding that the accused committed the act complained of and the

provisions of Section 470, Criminal Procedure Code, have been complied with.

He was, however, wrong in not having passed orders u/s 471. Mr. Adam, Public Prosecutor, contends that the High Court has no power to

pass orders and that the case must go back to the lower Court. He relies on Section 4(sic)9, Clause 4, Criminal Procedure Code, which prevents

the High Court from converting a finding of acquittal into one of conviction. I do not think the passing of an order u/s 471 after an acquittal has

been recorded, can be said to alter a finding of acquittal into one of conviction, The acquittal iS maintained, but, in view of the desirability of

keeping the accused from further mischief, the Court passed orders as to his safe custody.

So far as the High Court is concerned, it has, in revision, all the powers of a Court of Appeal. Section, 439, Clause (I), makes this clear and

confers on the High Court powers u/s 423. Under Clause 1 to Section 423, the Appellate Court can make any consequential or incidental order as

may be just and proper.

When an Appellate Court finds a man insane, it is bound to acquit him and any orders that it may pass subsequently u/s 471, Criminal

Procedure Code, are not part of any sentence for the offence. It is, in my opinion, an order which the Court passes as consequential on or

incidental to the acquittal.

Section 471 confers the power to order the insane accused ""to be kept in safe custody in such place and manner as the Magistrate or Court

thinks fit."" Clauses 2 and 3 have been repealed by Act IV of 1912 and the powers of the Court are wide. I see nothing in the section as it now

stands compelling the Court to send the accused to a lunatic asylum. All that is necessary is to see that such safeguards are taken as would keep

the accused from mischief. There are various degrees of lunacy and it would, in many cases, be quite unnecessary to take a person out of the

control of his parents or relations and confine him in a lunatic asylum if he can otherwise be kept from harm, I think that, in the present case the

accused can safely be kept under the custody and control of his father on the father''s executing a bond for a sum of Rs. 1,0 00 to assure for two

years undertaking to keep the accused from committing any offence. I modify the order of the lower Court accordingly.