Reference under Section 318 CrPC is improper where accused feigns disability to evade trial and recording of Section 313 statement.

The respondent, Kalyan Raikwar, was tried for offences under Sections 449, 376(AB), 506 of the IPC and Section 6 of the POCSO Act for the sexual assault of a seven-year-old girl.

During the trial, the defence claimed the accused was deaf and mute and could not understand court proceedings.

Medical reports from AIIMS Bhopal and a local medical board suggested "malingering" (faking illness), noting that while the accused had severe hearing loss, he was not "unsound of mind" and was uncooperative with hearing aids.

Sign language experts also stated he could not understand signs.

The Trial Court, bypassing the accused's examination under Section 313 of the Cr.P.C., convicted him and referred the matter to the High Court under Section 318 of the Cr.P.C.

Procedural history revealed the accused had a prior conviction for rape (2013) where he never raised the plea of being deaf and mute.

1. Whether the reference submitted under Section 318 of the Cr.P.C. is proper given the material on record suggesting the accused is faking his disability?

2. Whether the Trial Court erred in pronouncing a judgment of conviction without complying with the mandatory provisions of Section 313 of the Cr.P.C.?

The court applied Section 318 of the Cr.P.C., which allows a court to proceed with a trial against an accused who is not of unsound mind but cannot be made to understand the proceedings, provided that a conviction must be referred to the High Court.

The court emphasized the mandatory nature of Section 313 of the Cr.P.C. regarding the examination of the accused to explain incriminating evidence, noting the 2009 Amendment (Section 313(5)) which permits written explanations.

The court relied on the principle that court order-sheets are sacrosanct records of proceedings, citing State of Maharashtra v. Ramdas Shrinivas Nayak.

The High Court found the reference improper because the Trial Court failed to conduct a thorough inquiry into whether the accused was truly unable to understand proceedings or merely "malingering".

The Court noted that the accused had signed legal documents in Hindi, participated in a prior 2013 trial without disability claims, and was described in police memos as someone who "stammers" rather than someone who is mute.

The High Court reasoned that Section 318 is an "extra caution" measure, not a tool for accused persons to evade justice by faking disabilities.

By skipping the Section 313 examination, the Trial Court risked vitiating the trial; the High Court determined that modern aids (hearing amplification) and the provision for written statements under Section 313(5) should have been exhausted first.

It held that the Trial Court's failure to record the Section 313 statement was a procedural lapse and directed the Trial Court to record the accused's statement under Section 313 Cr.P.C. and proceed to pronounce a fresh judgment within four months.