STATE OF KERALA Vs. HARIHARAN PILLAI

JUDGEMENT

(1.) 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 S. 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 R. 35 to 39 of the Criminal 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 heard.

(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 Court. According to S. 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, the Court shall in the first instance, try the fact of such unsoundness and incapacity, and if after considering such medical and other evidence as may be produced, the Court is satisfied of the fact, the finding to that effect shall be recorded and the further proceedings in the case postponed. S. 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.) BUT, however, the same cannot be said of the proposal of the learned Sessions Judge to keep the case against the 5th accused as a long 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 anomaly 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. In the view taken in this order, no specific directions are necessary to be issued to the learned Sessions Judge. The criminal reference is thus answered. Copies of this order will be sent to the Sessions Judge, alleppey and the Addl. 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. . .