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SCR.A/748/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 748 of 2008
==========================================
HARISINH
AMARSINH SOLANKI THRO AMARSINH H. SOLANKI
Versus
STATE
OF GUJARAT & ORS
==========================================
Appearance :
MS
TANHA N PARIKH for Applicant:1
MR KP RAVAL, ADDL.PUBLIC PROSECUTOR
for Respondent:1
MR YM THAKORE for
Respondents:2-3
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CORAM
:
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 16/06/2008
ORAL ORDER
Heard
Ms. Tanha Parikh, learned Advocate for the petitioner, Mr.K.P.Raval,
learned Additional Public Prosecutor for respondent No.1-State of
Gujarat and Mr.Y.M.Thakore, learned advocate for respondents No.2
and 3.
Ms.Tanha
Parikh, learned Advocate for the petitioner herein has submitted
that the petitioner is of unsound mind which fact was known to the
learned Magistrate, however, despite the said position, the
application for maintenance made by the respondents No.2 and 3 was
disposed of on the basis of the compromise pursis submitted before
the learned Judicial Magistrate First Class. It is submitted that
petitioner being of unsound mind, his consent was fraudulently
obtained and the learned
Magistrate knowing well that the petitioner was of unsound mind
ought not to have disposed of the application in terms of the said
pursis . It is
further submitted that pursuant to the conditional order passed by
the learned Additional Sessions Judge in the revision application
filed by the petitioner, the petitioner has paid an adequate amount.
However, there is some mistake in the calculation made by the
learned 2nd Additional Sessions Judge, District
Sabarkantha at Himmatnagar, as the figure of Rs.41,600/- cannot be
by any means be a correct figure. It is submitted that accordingly,
the learned Additional Sessions Judge was not justified in ordering
the petition for condonation of delay to be closed vide the impugned
order dated 6th December, 2007.
On
the other hand, Mr.Y.M.Thakore, learned Advocate for respondents
No.2 and 3 has submitted that there is nothing on record to show
that the petitioner is of unsound mind. It is submitted that before
the learned Additional Sessions Judge, neither the applicant nor his
Advocate had remained present, nor was the earlier order directing
the petitioner to deposit the arrears of maintenance complied with.
It is accordingly submitted that the learned Additional Sessions
Judge was perfectly justified in ordering the proceedings of the
petition for condonation of delay to be closed.
This
Court has considered the submissions advanced by the learned
Advocates for the parties and has perused the record of the case.
This Court has also perused the medical case papers which were
produced for the perusal of this Court by the learned Advocate for
the petitioner which show that the petitioner is suffering from
schizophrenia. However, that by itself is not sufficient to show
that the petitioner is of unsound mind. Besides, if at all the
petitioner was of the view that the figure of the amount paid, as
stated in the order dated 6th December, 2007 is not
correct, it was for the petitioner to approach the learned
Additional Sessions Judge for necessary correction/modification of
the said order. Besides, as is apparent from the impugned order
dated 6th December, 2007, the petitioner has neither
complied with the order dated 14th September, 2007 passed
by the learned Additional Sessions Judge, whereby the application
for condonation of delay was allowed on condition that the
petitioner should deposit the arrears of maintenance upto September
17, 2007, nor were the petitioner or his Advocate present before the
concerned Court on the subsequent date.
In
view of the above discussion, no fault can be found with the
impugned order passed by the learned Additional Sessions Judge, in
ordering that, petition of condonation of delay be closed. There
being no infirmity in the impugned order passed by the learned
Additional Sessions Judge, District Sabarkantha at Himmatnagar, no
intervention is called for by this Court.
For
the foregoing reasons, the petition fails and is accordingly
dismissed. Notice is discharged.
(HARSHA
DEVANI, J.)
Amit/-
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