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1. This reference under Section 318, Cr.P.C. arises out of a judgment and order of conviction passed in S.T, No. 53/99 of Second Additional Judge to Sessions Judge, Guna at Ashoknagar whereunder the accused persons were found guilty of offence under Sections 147, 148, 302, 325, 324/149, IPC, however case of accused Hamira has been reserved and referred for passing order regarding imposition of sentence against him.

2. The facts in brief shorn of details as they emerge from the perusal of the record and are necessary for the disposal of this case lie in a narrow compass:

3. At the time of the framing of charges against the accused persons, it was not found nor objected to on behalf of any of the accused persons that accused Hamira is deaf and dumb. The learned Trial Judge while recording his plea of not guilty to the charge also did not feel that Hamira is deaf and dumb. However, on 21-10-99, it is only at the time of recording the cross-examination of complainant, Munna Lal, an application under Section 318, Cr.P.C. was moved on behalf of accused Hamira to the effect that he is deaf and dumb and unable to understand the proceedings against him. In view of the matter, the evidence recorded so far could not be used against him and the case deserves to be referred to the High Court for issuance of necessary directions. The learned Trial Court after interrogating accused Hamira at this stage although found him to be deaf and dumb but not to the extent so as to find him unable to understand the proceedings of the Court. The learned Trial Court further held that even if an accused is found to be deaf and dumb, the trial cannot be held up but has to be proceeded on and the case can be referred to the High Court under Section 318, Cr.P.C. only when he is found guilty of the offence with which he is charged.

9. It has to be noticed that in so far as Section 341 of the old Cr.P.C. is concerned, a reference to the High Court was also provided, if enquiry results in a committal. However, in so far as Section 318 of the present Cr.P.C. is concerned, the words "if enquiry results in a commitment" of the old Cr.P.C., have been omitted. In such a situation, the question of making a reference to the High Court before such proceedings result in a conviction, does not arise as has been held in the decision of the Court in case of Genda (supra).

10. The learned counsel of the respondents has also referred the decisions of the Hon'ble Supreme Court in case of Sharad Vs. State of Maharashtra, reported in AIR 1984 SC 1622 and Janak Yadav Vs. State of Bihar, reported in (1999) 9 SCC 125 pointing out that non-examination of the accused respondents under Section 313, Cr.P.C. is fatal, However, we are of the opinion that the cases of the Apex Court as referred by the learned counsel of the respondents have nothing to do with the proceedings against the person who is deaf and dumb. The non-examination of the accused under Section 313, Cr.P.C. in case of deaf and dumb does not cause any prejudice to him because a special provision envisaged under Section 318 of Cr.P.C. has been provided in making his reference to the High Court. In case of accused, who is deaf and dumb and against whom a finding of conviction is returned by the Trial Court, the High Court has to satisfy itself whether a fair trial was conducted against him.