RAHUL GUPTA Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the applicant, learned AGA and perused the record.

(2.) LEARNED counsel for the applicant contended that opposite party no. 2 was married with the applicant. There was some matrimonial dispute because she was pressing to live seperately hence proceeding was initiated under Section 498 -A IPC along with other Sections. An application was moved for maintenance under Section 125 Cr.P.C. The present complaint has been filed under the provisions of Protection of Women from Domestic Violence Act on the basis of false and frivolous allegations. Due to tension, the applicant suffered Brain Haemorrhage and he received treatment from different hospitals like Fortis and AIIMS at New Delhi. There was no normal functioning of the brain and as such the Medical Board was constituted by the Doctor of Pt. Bhagwat Dayal Sharma Post Graduate Institute of Medical Sciences, Rohtak and certificate dated 20.11.2013 was issued from which it is clear that the applicant was 50% handicapped and he was not responding to the command properly. That certificate was not accepted and believed by the Magistrate concerned when application was moved under Section 329 Cr.P.C. If there was doubt against certificate then Magistrate concerned should have got it examined by the Civil Surgeon or Medical Board, but arbitrarily the application was rejected merely on the ground that the applicant has received salary and the amount was withdrawn from the account. He further contended that there was joint account hence the amount was withdrawn by his father. Due to this even the action was taken by the employer and departmental proceeding was initiated and he has been terminated from service. However, the application under Section 329 Cr.P.C. has been rejected.

(3.) CONSIDERED the submissions. No clarification was sought from the Bank regarding withdrawal. When application was moved under Section 329 Cr.P.C. along with medical certificate issued by the Medical Board of Pt. Bhagwat Dayal Sharma Post Graduate Institute of Medical Sciences, Rohtak and if the court below was not relying that certificate, then the applicant can be got examined by the Medical Board or by the Civil Surgeon to ascertain the fact regarding mental condition whether he was unsound mind or not. Hence, the court below is directed to consider the matter afresh to get the applicant examined by Medical Board or Civil Surgeon. Till the report is received, the effect and operation of the impugned order dated 9.12.2013 and further proceeding in case no. 3352/2013, u/s 12, 17,18,19, 20 of Protection of Women from Domestic Violence Act, P.S. Hapur Kotwali, District Hapur (annexure 10), shall be kept in abeyance.