Court" are used in section 465 while the words "has reason to believe" are
used in section 464, but it is clear that in practical effect they mean almost
the same thing. The phrase "to appear" in my judgment used in the context
of section 465 in its meaning is nearest to the phrase "to be in one's opinion"
as given in the Shorter Oxford Dictionary.
In Sher Afzal v. The State7, learned High Court while deciding an appeal against
conviction and sentence under sections 302, 307, P.P.C. addressed a technical
objection regarding failure on the part of trial judge to comply with erstwhile
provision of section 4658 Cr.P.C. and observed as under:-"4. It will be noticed that if the trial Court wants to satisfy itself about the mental
state of the accused person and his capacity to make his defence, then it is
bound to enquire into the question with the aid of assessors and not alone,
and on this point the provision of section 465 is mandatory. In the present
case, the learned trial Judge enquired into the question of whether the
accused was or was not capable of understanding the proceedings of the
trial, but he did it without the aid of assessors. The learned Additional
Advocate-General concedes that non-compliance with the mandatory
provision of section 465 vitiates the trial. In Santokh Singh v. Emperor (AIR
1926 Lah. 498) their Lordships held the same view and ordered retrial on
similar ground."
In the case of Abdul Hamid v. The State9, while dealing with an appeal against
conviction and sentence of death under section 302, P.P.C., the learned High Court
while interpreting erstwhile provision of section 465, Cr.P.C. made following
observations:"16. ......... There are two stages in the section. The first stage is that it must
appear to the Court that the accused, placed on trial before it, was of
unsound mind and incapable of making his defence. The next stage is of
trying the question of unsoundness of mind which has to follow the first
stage, namely, when it appears to the Judge that the accused was of unsound
mind and incapable of making his defence. Then starts an enquiry into the
second question, which has to be tried by the Court as a preliminary
proceeding with the aid of the assessors ... ... The question, therefore, that
remains for determination is, whether the Court was bound to hold an
enquiry and try the question, whether the appellant was of unsound mind or
not. In our view the mere making of an application on behalf of a person,
committed for trial, that he was of unsound mind, is not sufficient to
necessitate the holding of an enquiry. It must appear also to the Court that
the accused may be of unsound mind and when it so appears, an enquiry is
necessary and the question whether the accused is of unsound mind or not
and incapable of making his defence, has to be decided with the aid of the
assessors. The learned Sessions Judge, with a view to satisfy himself, put
certain questions to the appellants and then came to the conclusion that he
did not seem to be of unsound mind and incapable of making his defence.
The examination of the accused was with a view to see if it appeared that he
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