Delhi District Court
Sh. Rajesh Gupta vs State (Nct Of Delhi) on 20 October, 2018
Criminal Revision No.200/2018
IN THE COURT OF SH. PULASTYA PRAMACHALA
SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT
KARKARDOOMA COURTS, DELHI
Criminal Revision No. : 200/2018
Under Section : 399 Cr.P.C
Case No. : 2316/2016 (Old Case No.V181/2013)
PS : Shakarpur
CNR No. : DLET01-006692-2018
In the matter of :-
SH. RAJESH GUPTA
S/o. Late Sh. Brahmanad Gupta,
R/o. RZ-G3, Dharampura, Colony,
Nazafgarh, Delhi.
............PETITIONER
VERSUS
1. STATE (NCT of Delhi)
2. SMT. CHANCHAL GUPTA
D/o. Sh. Pramod Kumar Gupta,
W/o. Sh. Rajesh Gupta,
R/o. S-104-A, Sunder Block,
Shakarpur, Delhi-110092.
..........RESPONDENTS
Date of Institution : 29.09.2018
Date of reserving order : 10.10.2018
Date of pronouncement : 20.10.2018
Decision : Petition is dismissed.
ORDER
1. This revision petition is directed against order dated 07.04.2016, passed by trial court in a case titled as Chanchal Gutpa v. Rajesh Gupta, bearing New Case No.2316/2016 (Old Case No.V181/2013), under Section 12 of Protection of women from Domestic Violence Page 1 of 6 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.200/2018 Act, 2005. Vide impugned order, trial court directed Sh. Rajesh Gupta (petitioner herein) to pay Rs.4,200/- per month as maintenance to Smt. Chanchal Gupta (respondent no.2 herein) and her two children from the date of filing of the petition till the disposal of the present case.
2. Briefly stated, the relevant facts giving rise to this revision petition are that respondent no.2 herein Smt. Chanchal Gupta (hereinafter referred to as complainant) filed an application under Section 12 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the Act), impleading her husband Sh. Rajesh Gupta (petitioner herein), mother-in-law Smt. Anguri Devi, jeth Sh. Devender Gupta and sister-in-law Smt. Poonam Gupta. In her application, complainant made several allegations against them related to domestic violence. She also filed an application under Section 23 of the Act.
3. Ld. MM granted relief to respondent no.2 herein, by passing impugned order under Section 23 of the Act against petitioner herein, directing him to pay Rs. 4,200/- per month to Smt. Chanchal Gupta (respondent no.2 herein) towards maintenance of herself as well as her two children as interim maintenance.
GROUNDS :-
4. Being aggrieved of the impugned order, petitioner herein has filed this revision petition mainly on the following relevant grounds :-
● That trial court did not consider the fact that in her complaint, respondent no.2 has not leveled any specific charge/allegation against petitioner.Page 2 of 6 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.200/2018 ● That trial court made a gross error in not considering the facts and circumstances of the case that respondent no.2 was not able to understand the awkward behaviour of the petitioner. Petitioner was not greedy for dowry, but he is suffering from bipolar affective disorder (disease).
● That ld. MM failed to try the case as a trial under Section 329 Cr.P.C i.e. trial for an accused of unsound mind. Therefore, impugned order passed by trial court is in defiance of the justice and liable to be set aside.
● That while passing the impugned order, ld. MM observed that petitioner is a able body person and fixed the maintenance as per minimum wages. Ld. MM overlooked the fact that petitioner is suffering from a mental disorder disease and not competent to utilize his able body as the same is not in the control of his mind. ● That ld. MM did not appreciate the facts that petitioner has no source of income as well as have no one to support him financially and emotionally.
● That ld. MM did not consider the mental condition of petitioner. Petitioner deteriorated to such an extent that Sufdarjang hospital issued a certificate no.2-9/16 MR dated 05.06.2016 declaring that petitioner is suffering from a Bipolar Affective Disorder with 45% disability. It was also recommended by doctors at Safdarjang that petitioner has to come back after the completion of two year for further analysis disease.
● That ld. MM did not opt to fetch an opinion of independent medical expert with respect to petitioner's mental condition, especially in Page 3 of 6 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.200/2018 the light of the facts and circumstances of the case and mechanically passed the impugned order for maintenance. APPRECIATION OF ARGUMENTS, FINDINGS AS WELL AS DECISION :-
5. Arguments were made by ld. LAC for petitioner, however, he could not justify as to filing of this revision petition instead of a criminal appeal under Section 29 of the Act itself. In fact, he did not seem to be aware of such provision. He argued on the lines of ground taken in the petition to submit that Section 329 Cr.P.C. prohibited trial of petitioner before ld.MM and to submit that petitioner has been suffering from mental disorder disease and he is a mental retarded person.
6. I have gone through trial court record, the reply filed by the petitioner before trial court and the documents filed by the petitioner before this court. The provision under Section 329 Cr.P.C is applicable in the trial of an accused before a criminal court, in a criminal proceedings. An accused is a person, who is accused of committing an offence. However, the respondents in application under Section 12 of the Act cannot be treated as accused of an offence. They are simply respondents. Just because the proceeding takes place before a Metropolitan Magistrate and the proceedings are guided by Criminal Procedure Code, such respondents do not become accused of an offence. Therefore, I am not very much impressed with such ground taken by petitioner in this revision petition.
7. The revision petition in itself is not maintainable in view of specific remedy provided under Section 29 of the Act. Still, I looked into the Page 4 of 6 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.200/2018 merits of the contentions, because the court could have exercised it's power under Section 401 Cr.P.C, to treat the petition as an appeal under Section 29 of the Act. The petitioner herein had filed his reply before trial court. However, his reply did not mention any thing about his alleged mental illness. I cannot use the term 'mental retarded person', as used by ld. LAC during arguments, because mental retardness connotes to a much serious scenario. The medical documents referred by petitioner do not mention the petitioner as a mental retarded person. Mental illness is totally different from mental retartedness. The plea of mental illness should have been raised before trial court at the relevant time, if the same was the reason for petitioner, so as not to earn and maintain his wife and children. However, it was never so urged before the trial court till the time when the impugned order was passed on 07.04.2016. After a long gap, one application under Section 329 Cr.P.C was filed before trial court and the trial court record shows that on 29.09.2018, ld. MM has already passed certain directions on the basis of such application.
8. As far as present petition is concerned, I find that same was not the appropriate course of action for the petitioner, in order to challenge the interim maintenance, because the order of interim maintenance was passed on the basis of plea taken by both the parties and the affidavits filed by them. Trial court had not the opportunity to look into such plea of petitioner, before passing the impugned order and therefore, the impugned order cannot be said to be illegally passed.
9. Section 25 of the Act provides for a mechanism for modification, alteration or review of any order/direction passed by ld. MM under the Page 5 of 6 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.200/2018 Act. The petitioner could have availed the same. The challenge to impugned order after such a long period, that too without raising the relevant plea before trial court, was not the right course of action and hence, I do not intend to entertain this petition. Petition is being dismissed and petitioner is advised to approach the trial court itself under appropriate provisions, so as to raise the plea which have been raised before this court in this petition for the first time so as to seek a modification/setting aside of impugned order. Petition is dismissed accordingly
10.Petitioner is directed to appear before trial court on date already fixed by the trial court.
11.TCR along with copy of order be sent back. File be consigned to record room, as per rules.
Digitally signed by PULASTYA PRAMACHALA PULASTYA Location: Court
PRAMACHALA No.3, Karkardooma
Courts, Delhi
Date: 2018.10.20
15:58:01 +0530
Announced in the open court (PULASTYA PRAMACHALA)
today on 20.10.2018 Special Judge (PC Act) CBI, East
(This order contains 6 pages) Karkardooma Courts, Delhi
Page 6 of 6 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District
Karkardooma Courts, Delhi