Delhi District Court
Shri Rajiv Chawla vs Smt Deepa Chawla on 1 April, 2013
1
IN THE COURT OF MS. SHAIL JAIN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE NDPS 02
(CENTRAL) DELHI
CA NO. 52/12
Shri Rajiv Chawla
S/o late Sh S. N. Chawla
R/o 227, Vivekanandpuri
Delhi110007.
........APPELLANTS
versus
1. Smt Deepa Chawla
w/o Sh Rajiv Chawla
D/o late Sh Subhash Chand Narang
At present address: B1/31, Phase II
Ashok Vihar, Delhi52.
And also at
O29, Double Storey Quarter
Partap Nagar, Delhi.
2. Dr Nikhil Raheja Psychiatrist and
Psychotherapist
R/o Raheja Nursing Home
10233, Gurdwara Road
Karol Bagh, New Delhi.
.......RESPONDENTS
DATE OF INSTITUTION : 14.08.2012
DATE OF JUDGMENT : 01.04.2013
J U D G M E N T
1. The present appeal u/s 49 of the Mental Health Act, 1987 against C.A. NO. 52/12 Page 1 of 13 pages Rajiv Chawla vs Smt Deepa Chawla 2 the order dated 04.06.2012 passed by the court of Ms Gurmohina Kaur Ld M.M has been filed by the appellant for setting aside the order dated 04.06.2012.
2. Brief facts leading to the present appeal are that appellant has filed an application u/s 20 (1 ) (b) of the Mental Health Act seeking a reception order in respect of the respondent no. 1 who is mentally ill person for her admission examination, evaluation and treatment at Institute of Human Behavior and Allied Science. It is stated by appellant that respondent no 1 is suffering from Mood Swing and fits of anger immediately after marriage and after delivering baby girl, respondent developed unnatural obsession towards the child and started reacting violently. The respondent no. 1 was given medication for the period of March, 2010 to April, 2010 but it did not have any significant impact on the condition of respondent no. 1, hence respondent no. 2 advised admission of respondent no 1 to the hospital and respondent no 1 remained admitted as inpatient between the period 11.06.2010 to 08.09.2010 and 16.2.2011 to 14.5.2011, when she was given electric shock and other kind of treatment. This also does not have any lasting impact on the respondent no 1 .
3. Respondent no 1 filed written statement to the application filed by the appellant and denied all the allegations made in the petition by the applicant without any basis and any proof. Hence the appellant was compelled to move an application seeking a direction to respondent no. 2 to produce in the court the entire treatment of C.A. NO. 52/12 Page 2 of 13 pages Rajiv Chawla vs Smt Deepa Chawla 3 respondent no 1 . Ld Trial Court without considering the judicial record and documents passed the impugned order dated 4.06.2012 whereby application of appellant u/s 20 of Mental Health Act was dismissed.
4. Being aggrieved by the order of Ld Metropolitan Magistrate, appellant filed present appeal on the following grounds:
a) That impugned order is against the facts and law and same is liable to be set aside;
b) That Ld Trial Court has failed to appreciate the documents filed by appellant;
c) That Ld Trial Court has disposed of the application without giving opportunity of leading evidence to the parties, which is against the principles of natural justice;
with these similar grounds appellant has prayed for setting aside of the impugned order.
5. I have heard Sh. P. N. Dhar, Ld. counsel for appellants, Sh. Diwan Singh Chauhan Ld counsel for Respondent no. 1 and Ld. Addl. P.P. for the State/respondent and I have given due consideration to the grounds of appeal, impugned judgment and record of trial court.
6. Ld counsel for the appellant had argued that requirement of Section 22 of the Mental Health Act (herein after called as the Act) has not been fulfilled by Ld Trial Court as it was the duty of Ld Metropolitan Magistrate to examine the mentally ill person personally and since the same has not been done by the Ld Trial Court, the order is liable to be set aside. The other ground on which C.A. NO. 52/12 Page 3 of 13 pages Rajiv Chawla vs Smt Deepa Chawla 4 the Ld Trial Court order had been assailed by Ld counsel for appellant is that the Act provides right of crossexamination to the appellant and since no right of crossexamination was given to appellant to cross examine the respondent, hence the order of Ld Trial Court is liable to be set aside.
7. On the other hand Ld counsel for Respondent No. 1 had argued that in the application u/s 20 of the Mental Health Act, 1987 as filed by the appellant before Ld Trial Court , requirement of Section 20 of Mental Health Act, 1987 had not been fulfilled, and therefore, the application was not maintainable before Ld Trial Court and should have been dismissed. Ld counsel for respondent has relied upon the judgment of Hon'ble High Court of Madras titled as UMA MANICKAM VS INSPECTOR OF POLICE; JAYA KUMAR; RAVI KUMAR; S RAJA decided on 14.09.2007 2007 Law Suit (Mad) 1527.
8. I have considered the submissions of Ld counsel for the parties. I have considered the order of Ld Trial Court and the material available on the trial court record.
9. A very short point involved in the present appeal is whether Ld Trial Court, on the application u/s 20 (1) (b) by the appellant against respondent no 1 should have given an opportunity to appellant to crossexamine Respondent No. 1 and 2 or not? Application filed by the present appellant was dismissed by Ld Trial Court on the ground that there was no necessity of passing the reception order against the respondent no. 1 on the ground of being under treatment and secondly Ld Trial Court was of the opinion that C.A. NO. 52/12 Page 4 of 13 pages Rajiv Chawla vs Smt Deepa Chawla 5 there is marital discord between the parties and Ld Trial Court does not consider it fit to pass any reception order of Deepa Chawla ( Respondent No. 1 herein) as she has voluntarily consented of being treated by Dr Nikhil Raheja (Respondent No. 2 herein). This order dated 04.06.12 passed by Ld Trial Court has been assailed by the appellant on the ground that Ld Trial Court did not examine the respondent no 1 personally and secondly no right of cross examination was given to the appellant. After considering the provision of Mental Health Act and the submissions made by Ld counsel for the parties, I am of the opinion that there was no occasion for the court to grant any opportunity of crossexamination to the appellant because no examination on oath of any of the person was recorded by Ld Trial Court which could have given the opportunity or created the right in favour of appellant to cross examine any witnesses. In this case, neither Respondent no 1 nor Respondent no 2 was examined on oath by Ld Trial Court, hence there was no opportunity or circumstances under which the right of cross examination could have accrued to the appellant. Further, the Act does not provide any such procedure. Therefore, I am of the opinion that this argument of appellant does not hold any ground and is not acceptable.
10. The second contention of the appellant is that Ld Trial Court should have examined the respondent no 1 in person before passing any order. On this contention, it is necessary to consider the provision of Section 20 of the Act, which is reproduced as under:
C.A. NO. 52/12 Page 5 of 13 pages Rajiv Chawla vs Smt Deepa Chawla 6 Section 20 application for reception order:
(1) An application for a reception order may be made by
(a) the medical officezr in charge of a psychiatric hospital of psychiatric nursing home, or
(b) by the husband, wife or any other relative of the mentally ill person;
(2) Where a medical officer in charge of a psychiatric hospital or psychiatric nursing home in which a mentally ill person is undergoing treatment under a temporary order is satisfied that:
(a) ......................
(b)....................... (3) Subject to the provision of subsection (5) the husband or wife of a person who is alleged to be mentally ill, or where there is no husband or wife, or where the husband or wife is prevented by reason of any illness or absence from India or otherwise from making the application, any other relative of such person may make an application to the Magistrate within the local limits of whose jurisdiction the said person ordinarily resides, for the C.A. NO. 52/12 Page 6 of 13 pages Rajiv Chawla vs Smt Deepa Chawla 7 detention of the alleged mentally ill person under a reception order in a psychiatric hospital or psychiatric nursing home. (4)............................................................... (5) No person
(i) who is a minor, or
(ii) who, within fourteen days before the date of the application, has not seen the alleged mentally ill person, shall make an application under this section.
(6) Every application under sub section (3) shall be made in the prescribed form and shall be signed and verified in the prescribed manner and shall state whether any previous application had been made for inquiry into the mental condition of the alleged mentally ill person and shall be accompanied by two medical certificate from two medical practitioner of whom one shall be a medical practitioner in the service of Government.
11. As per section 20 Mental Health Act, 1987, the application can be moved for reception order of mentally ill person by the husband/wife or any other relative. Section 20 Mental Health Act, 1987 further prescribes for circumstances for moving the application for reception order. Section 22 of the Act is the provision which provides C.A. NO. 52/12 Page 7 of 13 pages Rajiv Chawla vs Smt Deepa Chawla 8 procedure upon receipt of the application for reception order .
12. Section 22 of the Act is reproduced as below:
Section 22Procedure upon application for reception order:
(1) On reception of an application under sub section (2) of the Section 20 , the Magistrate may make a reception order, if he is satisfied that:
(i) the mentally ill person is suffering from mental disorder of such a nature and degree that it it necessary to detain him in a psychiatric hospital or psychiatric nursing home for treatment; or
(ii) it is necessary in the interest of the health and personal safety of the mentally ill person or for the protection of others that he should be so detained, and a temporary treatment order would not be adequate in the circumstances of the case and it is necessary to make a reception order;
(2) On reception of an application under sub section (3) of Section 20, the Magistrate shall consider the statements made in the application and the evidence C.A. NO. 52/12 Page 8 of 13 pages Rajiv Chawla vs Smt Deepa Chawla 9 of mental illness as disclosed by the medical certificate.
(3) if the Magistrate considers that there are sufficient grounds for proceedings, further, he shall personally examine the alleged mentally ill person, unless for reason to be recorded in writing, he thinks that it is not necessary or expedient to do so.
(4) If the Magistrate is satisfied that a reception order may properly be made forthwith, he may make such order, and if the Magistrate is not so satisfied, he shall fix a date for further consideration of the application and may make such inquiries concerning the alleged mentally ill person as he think fit.
(5) The notice of the date fixed under sub section (4) shall be given to the applicant and to any other person to whom, in the opinion of the Magistrate, such notice shall be given.
(6) if the magistrate fixed a date under sub section (4) for further consideration of the application, he may make such order as he C.A. NO. 52/12 Page 9 of 13 pages Rajiv Chawla vs Smt Deepa Chawla 10 thinks fit, for the proper care and custody of the alleged mentally ill person pending disposal of the application.
(7) On the date fixed sub section (4), or on such further date as may be fixed by the Magistrate, he shall proceed to consider the application in camera, in the presence of.......................
(i) to (iii)..............
(iv) such other person as the Magistrate think fit, and if the Magistrates satisfied that the alleged mentally ill person, in relation to whom the application is made, is so mentally ill that in the interest of the health and personal safety of that person or for the protection of others it is necessary to detain him in a psychiatric hospital or psychiatric nursing home for treatment, he may pass a reception order for that purpose and if he is not so satisfied, he shall dismiss the application and any such order may provide for the payment of the cost of the inquiry by the applicant personally or from out of the estate of the mentally ill person, as the C.A. NO. 52/12 Page 10 of 13 pages Rajiv Chawla vs Smt Deepa Chawla 11 Magistrate may deem appropriate. (8).....................
13. From bare reading of Section 22 of Mental Health Act, 1987, it is clear that as per provision of Section 22 (1) (i) of Mental Health Act, 1987, the Magistrate may make reception order if he is satisfied that mentally ill person is suffering from mental disorder of such a nature and degree that it is necessary to detain him in a psychiatric hospital or psychiatric nursing home for treatment. Sub clause (ii) of sub section (1) of the Section 22 of the Act provides that if it is necessary in the interest of the health and personal safety of the mentally ill person or for the protection of others that he should be so detained, and a temporary treatment order would not be adequate in the circumstances of the case and it is necessary to make a reception order and Magistrate is satisfied of the existence of such facts, he may make order. Sub section (3) of Section 22 of the Act provides that if the Magistrate considers that there are sufficient grounds for proceedings, further, he shall personally examine the alleged mentally ill person, unless for reason to be recorded in writing, he thinks that it is not necessary or expedient to do so. It is no where stated under Section 22 or otherwise that satisfaction of the Magistrate has to be put in the form of recording of the statement of mentally ill person or opportunity of crossexamination is to be given to the applicant. The entire basis of the Section 20 for making reception order is welfare of the mentally ill person and it is believed that the applicant who will make the application u/s 20 of Mental C.A. NO. 52/12 Page 11 of 13 pages Rajiv Chawla vs Smt Deepa Chawla 12 Health Act, 1987 will be the person who is interested in the welfare and well being of the mentally ill person and not otherwise, therefore, no provision for opportunity to cross examine had been provided in the Act.
14. I find it extremely difficult to accept the contention of the appellant that opportunity to crossexamine the Respondent No 1 and 2 should have been given to him, because said opportunity would have been given to applicant/appellant then it would have not been in the welfare of the mentally ill person (Respondent no. 1, herein) and would rather have created problem for the respondent no.1, as the parties are living separately due to marital discord.
15. As regards the procedure to be followed, it is mandatory requirement of law that the application u/s 20 Mental Health Act, 1987 should be accompanied by two medical certificate from two medical practitioner of whom one shall be medical practitioner in the services of Government. Since, this requirement has not been fulfilled by the present applicant/appellant, I am of the opinion that the application as moved by the appellant was not maintainable and should have been dismissed by Ld Trial Court.
16. As regards requirement of law which puts burden on the Ld Magistrate to examine the mentally ill person personally, I am of the opinion that requirement had been fulfilled by Ld Trial Court as Ld Trial Court had specifically mentioned that she had spoken to Respondent No. 1 (Deepa Chawla) personally, satisfaction of Ld Trial Court of passing order is specifically mentioned in the order dated C.A. NO. 52/12 Page 12 of 13 pages Rajiv Chawla vs Smt Deepa Chawla 13 04.06.12 and it is also mentioned by Ld Trial Court that Respondent No. 1(Deepa Chawla) is undergoing treatment with Dr Nikhil Raheja and therefore, Ld Trial Court was of the opinion that no reception order of Deepa Chawla is to be passed.
17. In view of my above discussion, I am of the opinion that Ld Trial Court has given considerable thought by personally examining the Respondent No. 1 and has examined the documents of treatment of respondent no 1 by Respondent no.2, only thereafter, Ld Trial Court had reached to the conclusion that no reception order of Deepa Chawla is to be passed. There is no material on record filed by the appellant which could prove that circumstances warranted the passing of reception order of Respondent No. 1, as the requirement of Section 20 of the Act has not been fulfilled. The application as filed was not supported with two medical certificates by two medical practitioner of whom one should be government medical practitioner and therefore, the appeal as filed is not maintainable. The order of Ld Trial Court does not suffer from any infirmity and is, therefore confirmed. Appeal as filed by the appellant is dismissed.
18. Trial court record be sent back with the copy of the order. File of appeal be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON 1st APRIL, 2013.
( SHAIL JAIN )
ADDL. SESSIONS JUDGE (CENTRAL)
DELHI
C.A. NO. 52/12 Page 13 of 13 pages
Rajiv Chawla vs Smt Deepa Chawla