ABDURAHMAN KUNJU Vs. MISARIYA BEEVI

JUDGEMENT

(1.) The father of the counter petitioner in M. C. No. 18 of 1977, hereinafter referred to as the counter petitioner, which was an application filed by the respondent herein against the counter petitioner for maintenance under S.125 of the Code of Criminal Procedure, is the petitioner in this revision petition. He is aggrieved by the decision of the learned Magistrate who dismissed his petition for appointing him as the guardian of the counter petitioner alleging that the counter petitioner was deaf and dumb, incapable of understanding the proceedings in court. The learned Magistrate took the view that the petitioner had no locus standi for moving the court for any relief whatsoever. The learned Magistrate also observed that there was no averment in the petition that the counter petitioner was a person of unsound mind incapable of making his defence; a deaf and dumb person is not a person of unsound mind.

(2.) The contention of the petitioner is that proceedings under S.125 of the Criminal Procedure Code is of a civil nature, and therefore the procedure prescribed in R.15 O.32 of the Code of Civil Procedure is to be adopted in criminal proceedings where the accused is found to be a deaf and dumb person. It is urged on behalf of the petitioner that unless a guardian is appointed for the counter petitioner, it will not be possible for him to defend his case properly. The submission of the counsel, therefore, is that in compliance with either the relevant provisions of O.32 of the Civil Procedure Code or S.482 of the Criminal Procedure Code, the petitioner ought to have been appointed as the guardian of the counter petitioner as prayed for in the petition.

(3.) No provision in the Code of Criminal Procedure which directs the court to appoint a guardian for a deaf and dumb person has been brought to my notice. There is no doubt sub-s.(1) of S.329 of the Code of Criminal Procedure which provides that if it appears to be Magistrate or Court that the accused is of unsound mind and consequently incapable of making his defence, the Magistrate or the Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Magistrate or the Court, after considering such medical and other evidence as may be produced before him or it, was satisfied of the fact, he or it shall record a finding to that effect and shall postpone further proceedings in the case. By no stretch of imagination can it be said that the provision is applicable to the case on hand which involves a deaf and dumb person. What obviously applicable to the case seems to be S.318 of the Code which corresponds to S.341 of the old Code of 1898. That section provides as follows: