Jammu & Kashmir High Court
Manav Kohli vs . Ranjana And Others on 21 May, 2019
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
CRMC No. 155/2019, IA No. 01/2019
Date of order: 17.05.2019
Manav Kohli Vs. Ranjana and others
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Petitioner (s) : Mr. Koshal Parihar, Advocate
For Respondent (s) :
i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.
1. The petitioner has filed the instant petition seeking quashment of order dated 10.11.2018 passed by the court of learned JMIC, Samba as well as order dated 13.03.2019 passed by the court of learned Principal Sessions Judge, Samba.
2. In the petition, it has been stated that the petitioner herein had filed an application under Section 464 Cr.P.C. in a petition filed by the respondent under Section 12 of Domestic Violence Act stating therein that he has lost his capability to make his defence being of unsound mind due to major depression disorder. Accordingly, he prayed before the JMIC, Samba for postponing of the trial in the complaint filed under Section 12 of Domestic Violence, Act. The learned JMIC, dismissed the said petition vide order dated 10.11.2018. Against this order, he filed a revision petition, which has also been dismissed on 13.03.2019.
3. While arguing the matter, the petitioner's counsel has stated that the courts below have ignored the procedure prescribed under Sections 464 and 465 Cr.P.C. read with Section 28 of Protection of Women from Domestic Violence Act, 2010. That the courts below have recorded the OWP No. 155/2019 Page 1 of 6 findings on unsound person, which is against the legal principle of law. That the petitioner is suffering from unsoundness of mind, so he cannot face the trial of the case. In support of this petition, he has relied upon two judgments reported in 1972 AIR (SC) 2267, titled, Dr. Jai Shankar versus State of Himachal Pradesh; and 2017 (2) O.J.R. 569, titled, Snehaswakshayar Samal versus State of Orissa.
4. Heard learned counsel for the petitioner.
5. From the perusal of order of the JMIC, Samba, it appears that the respondent has filed a petition under Section 12 of Domestic Violence Act. During the course of trial, petitioner/husband has filed a petition for postponement of trial on the ground that he has lost his capability to make his defence being of unsound mind due to major depression. This application was filed by the petitioner through his father. The respondent herein filed objections and contended that this application is under no provisions of law. That the respondent is a fit man and story narrated is just being manufactured to delay the trial. The court below after hearing both the sides dismissed the said application. The concluding paras reads as under:-
"Furthermore, the applicant has annexed with his application only medical prescriptions and according to these prescriptions, is it found that he is on medical treatment, but no certificate of Doctor is annexed with the application, which shows that he has become a person of unsound mind. In case, if non-applicant No. 1 has become a person of unsound mind then they required to follow a prescribed procedure for declaring that he is a person of unsound mind and just by annexing medical prescription, it is not permissible to declare him a person of unsound mind at that stage.
The present case is filed by the non-applicant/petitioner under the Domestic Violence Act as non-applicant/petitioner has committed violence against the complainant and she is legally wedded wife of non-applicant No. 1 and she also claimed maintenance from her husband, who is legally entitled to maintain her. There is no denial of matrimonial relation between the parties in the present case. As such, the present Act is made for the protection of destitute wife and postponing the trial on the ground that the husband has become a person of unsound mind on the basis of OWP No. 155/2019 Page 2 of 6 some medical prescription is an acute miscarriage of justice which is against the welfare of the destitute woman. Keeping in view the above mentioned reasons and fact & circumstances of the case, the present application is dismissed accordingly and attached with the main petition. Respondent is directed to file objections on due date. Put up on 12.12.2018."
6. A revision was filed against this order before the learned Sessions Judge, Samba, who also dismissed the revision petition and the concluding paras of the judgment reads as under:-
"8. As would be borne out from a bare perusal of the provision reproduced above, before a Magistrate proceeds to inquire into the fact of unsoundness and consequently incapacity, the Magistrate must believe that the accused is of unsound mind and incapable of making his defence. The word "believe" surely imports a lesser degree of probability than proof but then this would not mean that the Magistrate must proceed to inquire the question on mere asking. There must be something either in the form of medical record or other material to raise a reasonable doubt in the mind of the Magistrate that the accused is of unsound mind. Even the demeanor of the accused may sufficiently lead to such a doubt. It is only on the crossing of this hurdle that it becomes obligatory on to the Magistrate to inquire the fact of such unsoundness of mind and incapacity of the accused
9. In the instant case, the application of petition before the trial court was supported by few Out Patient slips of some hospitals. The problems mentioned in these slips were giddiness, insomnia, mild depression and anxiety etc. there is nothing on the record of trial court to suggest that the petitioner is of unsound mind and is incapable of defending himself. Moreover, as per Archbold's Criminal Pleadings, Evidence and Practice, there are four kinds of persons who may be said to be non-compos mantis (not of sound mind) i.e. (1)an idiot (2) one made non compos by illness; (3) a lunatic or a mad man; and (4) one who is drunk. The petitioner does not fall in any of these categories.
10. Apart this, during the course of arguments, Mr. Rahul Sambyal, Advocate submitted that the petitioner has moved a petition under J&K Hindu Marriage Act at Jammu and if he is of unsound mind and incapable of defending the complaint lodged by the respondent No. 1, how he could pursue the matter which he has laid before the other court. This argument of the contesting respondent remained unanswered by the other side, which would show that this application has been moved to avoid the liability arising out of the Domestic Violence Act.
11.For the foregoing reasons, the order impugned is in conformity with the facts of the case and law applicable and as such does not calls for interference in revision. The revision petition merits to be dismissed and is accordingly dismissed. The record of the court below along with copy of this order be sent down forthwith. The OWP No. 155/2019 Page 3 of 6 parties are directed to appear before the court below on 20.03.2019. The petition is accordingly disposed of and the file shall be consigned to records after its due compilation."
7. I have given my thoughtful consideration to whole aspect of the matter.
8. CHAPTER-XXXIV of Cr.P.C deals with subject 'LUNATICS'. Section 464 Cr.P.C. reads as under:-
"Section 464. Procedure in case of accused being lunatic.- (l) When a Magistrate holding an inquiry or a trial has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, the Magistrate shall inquire into the fact of such unsoundness, and shall cause such person to be examined by the Chief Medical Officer of the Province or such other medical officer as [the Government] direct, and thereupon shall examine such Chief Medical Officer or other officer as a witness and shall reduce the examination to writing. (1-a) Pending such examination and inquiry, the Magistrate may deal with the accused in accordance with the provisions of Section 466. (2) If such Magistrate is of opinion that the accused is of unsound mind and consequently incapable of making his defence, he shall record a finding to that effect and shall postpone further proceedings in the case."
9. From bare perusal of this section, it is evident that the provisions of this section are applicable only to trial or inquiry. The term 'Trial' has not been defined in the Cr.P.C, however, it is commonly understood to mean- a judicial proceeding where evidences are allowed to be proved or disproved, and guilt of a person is adjudged leading to an acquittal (an exoneration from charge) or a conviction. Terms inquiry has been defined in section 4 (g) of Cr.P.C., it reads as under:-
"(g) "Inquiry"- "Inquiry" includes every inquiry other than a trial conducted under this Code by a Magistrate or Court."
10. Admittedly, the magistrate while dealing with the petition under section 12 of D.V. Act conducts neither inquiry nor trial, because he has not to either convict or acquit the respondent after conclusion of proceedings.
OWP No. 155/2019 Page 4 of 6An application under the DV Act is filed before the Judicial Magistrate within whose jurisdiction the domestic violence is committed or the victim woman lives. But in fact, the objects and reasons of the DV Act says, "The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence under Section 498-A of the Ranbir Penal Code. It was, therefore, proposed to enact a law keeping in view the rights guaranteed under articles 14, 15 and 21 of the Constitution to provide a remedy under the civil law which is intended to protect the women from being victimised of domestic violence and to prevent the occurrence of domestic violence in the society. Thus, even a casual reading of the objects would make it clear that the DV Act is civil in nature and not criminal.
11. Further from the bare perusal of orders of both the courts below, it is evident that petitioner has not furnished any substantial evidence with regard to his plea of insanity. He has only annexed some medical prescriptions. It is also fact that petitioner has filed a petition under section 13 of H.M. Act before Matrimonial Court, Jammu. So had he been insane, then how can he prosecute that petition. Incapacity to make defense as mentioned in section 464 Cr.P.C would definitely include prosecution of other proceedings. Another argument of counsel for petitioner that, it is mandatory for court to cause the petitioner to be examined by the Chief Medical Officer of the Province or such other medical officer as the Government may direct and not for petitioner to place on record proof in this regard, is devoid of merits. Because court has to firstly form opinion and has reasons to believe that the accused is of unsound mind, this reason has to be formed on the basis of some material on record. On mere bald version without any substantial material, the court is not obliged to form opinion in this regard. As per law, reasons to believe means coming to the conclusion on the basis of OWP No. 155/2019 Page 5 of 6 the information that a thing, condition, statement or fact exists. It only means, facts which prima facie will convince any reasonable person under the circumstances of the case to form a belief that will impel him to take action under law. As already held, there is nothing on record, from which it can be believed that petitioner is insane and cannot defend the case under D.V. Act. The law cited are not applicable in present set of circumstances as facts of those cases are quite different from the present one.
12. In view of above, this petition is dismissed.
( Sanjay Kumar Gupta ) Judge Jammu 17.05.2019 Meenakshi NARINDER KUMAR SHARMA 2019.05.17 14:18 I attest to the accuracy and integrity of this document OWP No. 155/2019 Page 6 of 6