ORDER This reference, at the instance of the Additional Sessions Judge, Mavelikkara, arises from Sessions Case No. 1 of 1980 of his Court. There are nine accused in the case. The case was taken up for trial and after the completion of the prosecution evidence, the case was posted for questioning the accused under section 313 of the Code of Criminal Procedure (for short ‘the Code’). At that stage, counsel for the 5th accused represented to the Court that the 5th accused has become insane and has been admitted in the Mental Hospital, Trivandrum. A certificate to that effect from the Superintendent of the Mental Hospital has also been produced. On the examination of the Superintendent as C.W. 1, the learned Sessions Judge came to the conclusion that the 5th accused is presently of unsound mind and the trial could not be continued against him. However, on the basis of the principles underlying rules 35 to 39 of the Criminals Rules of Practice (for short ‘the Rules’) he took the view that the case against the 5th accused could be split up and postponed and the case against the remaining accused could be proceeded with. In the light of this order, he has now sought permission to re-number the case against the 5th accused, to permit to strike it off from the register and keep it as a long pending case, till the 5th accused becomes available for trial. The criminal reference arises from this communication. Learned Advocate-General and counsel for accused have been found. 2. Chapter XXV of the Code contains provisions as to accused persons of unsound mind. While some of the provisions relate only to proceedings before Magistrates, there are other provisions which relate to proceedings before Magistrates as well as Sessions Courts. According to section 329, if at the trial of any person before a Magistrate or Sessions Court, it appears that such person is of unsound mind and consequently incapable of making his defence, try that the fact of such unsoundness and incapability, and if after considering such medical and other evidence as may be produced. The Court is satisfied of the fact finding to that effect shall be recorded and the further proceedings in the case postponed. Section 332 contemplates in what manner and in what circumstances the trial shall proceed. The Court is satisfied of the fact finding to that effect shall be recorded and the further proceedings in the case postponed. Section 332 contemplates in what manner and in what circumstances the trial shall proceed. When the accused appears or is again brought before the Court and the Court considers him capable of making his defence, the trial shall proceed. 3. Though the heading of rule 35 of the Rule is “Cases in which accused has absconded”, actually the rule deals with not only cases of absconding accused but also cases where the accused are insane. Rules 35 to 38 of the rules lay down the manner in which cases involving non-appearance of accused are to be dealt with. They take in cases where the accused persons on account of unsound mind, are dealt with under section 436 of the Code of Criminal Procedure, 1989 (the corresponding provisions in the Code being section 330). The Magistrate has to report the case for orders of the District Magistrate (that is, the Chief Judicial Magistrate at present) who may, if he thinks fit, order that the case may be removed and omitted from quarterly returns. The case shall be entered in a separate register of long pending cases which shall be maintained by all Magistrates in Form A, No. 9. If at any further time the accused person is apprehended or appears or ceases to be insane, as the case may be, the case against shall be treated as a new case and entered accordingly in the register or cases received, and dealt with accordingly to law. Where one or some only of the accused are not available accused, the case shall be proceeded with and disposed of according to law and as regards the unavailable accused, the Magistrate is required to give the case a new number and enter it in the register of cases received. If the case remains pending for a long time inspite of efforts to secure the presence of accused and the case against the accused who have appeared has been disposed of, the Magistrate is required to report the whole matter as regards all the accused to the Chief Judicial Magistrate who may direct that the case against the absent accused be removed to the Register of Long Pending cases. He may also give other directions as contemplated in the Rules. He may also give other directions as contemplated in the Rules. Procedure relating to the Register of long pending cases is laid down in rule 37. That could only apply to accused persons who are not amenable to process inspite of action under sections 87, 88 and 512 of the old Code. 4. The Code does not contain any specific provision relating to cases where one or some only among several’ accused are, by reason of unsound mind, incapacitiated from facing trial. Obviously, no such specific provision has been made because the relevant sections in Chapter XXV of the Code are capable of providing guidelines in such cases also. Section 329 of the Code contemplates: postponement of ‘further proceedings in the case’. Section 332 contemplates a situation where the trial shall proceed. Obviously, these sections can relate only to the case in so far as it relates to the accused who, by reason of unsoundness of mind, is incapable of making his defence. It cannot affect or relate to the case in so far as it corcern the other accused. Any other construction would lead to very serious consequences for the accused who are not so incapacitated. The necessary implication of these provisions is that the case can proceed against the remaining accused. Any other interpretation would create untold hardship and prejudice to such accused and complications in relation to Court process. There can be no doubt that the learned Sessions Judge was correct in his decision to proceed with the trial of the case in relation to accused other than the 5th accused. Necessarily, the case against the 5th accused must be given a separate number. I am supported in this view by the decision of the Bombay, High Court in Narayanarao Madhora Data Rao v. The State of Maharashtra (1968) 70 Bom.L.R. 425. 5. But, however, the same cannot be said of the proposal of the learned Sessions Judge to keep the case against the 5th accused as along pending case. As the Rules stand at present, the Sessions Courts are not required to maintain Register of Long Pending Cases. In fact, this Court, on its Administrative side, appears to have taken cognizance of the anomally created by the non-reference to Sessions Court in the relevant rules and the matter has been placed before the Rule Committee. As the Rules stand at present, the Sessions Courts are not required to maintain Register of Long Pending Cases. In fact, this Court, on its Administrative side, appears to have taken cognizance of the anomally created by the non-reference to Sessions Court in the relevant rules and the matter has been placed before the Rule Committee. It is expected that the matter will, receive the attention of the Rule Committee. As long as the Rules do not require the Sessions Courts to maintain a Register of Long Pending Cases, no such register can be maintained and no case can be put in any such register. Of course, the case against the 5th accused must be given a new number and that number must find a place in the register of Sessions Cases and remain there. 6. In view taken in this order, no specific directions are necessary to be issued to the learned Sessions Judge. The criminal reference is thus answered. 7. Copy of this order will be sent to the Sessions Judge, Alleppey and the Additional Sessions Judge, Mavelikkara. This matter will also be brought to the attention of the Registrar of the High Court and the Secretary of the Rule Committee. M.C.M. ----- Reference answered.