The main legal point established in the judgment is the mandatory nature of referring proof of mental illness for further scrutiny to the concerned Board under Section 105 of the Mental Healthcare Act, 2017, and the rights-based framework of mental healthcare provided by the Act.

JUDGMENT

AMIT SHARMA, J.

1. The present revision petition under Section 397/401 read with Section 482 of the Code of Criminal Procedure, 1973 ('CrPC') seeks setting aside of the order dated 23.12.2022 passed by the learned Additional Sessions Judge 02, West, Tis Hazari Courts, Delhi, in Criminal Appeal bearing No. 302/2022, whereby the appeal preferred by the present petitioner was dismissed and the order dated 28.10.2022, passed by the learned Metropolitan Magistrate, Mahila Court -05, West, Tis Hazari Courts, Delhi, was upheld.

BACKGROUND

2. On 31.03.2022, the learned Metropolitan Magistrate, Mahila Court-05, West District, Tis Hazari Courts, in an application under Section 23 of Protection of Women from Domestic Violence Act, 2005 ('DV Act') bearing number MC No. 79/2017, titled 'Ekta Abbot Vs. Ankur Abbot' directed the present petitioner to pay a sum of Rs. 1,15,000/-per month to the respondent herein and their minor daughter from the date of filing of the petition under Section 12 of the DV Act till its final disposal. The said order was challenged by the petitioner vide Criminal Appeal No. 114/2022, before the learned Sessions Court, Tis Hazari Courts, Delhi.

2.1. The respondent herein filed an execution petition being Ex. Crl. No. 115/2022 before the learned Metropolitan Magistrate, Mahila Court-05, West, Tis Hazari Courts, Delhi.

2.2. On 22.10.2022, the present petitioner in the aforesaid Ex. Crl. No. 115/2022, moved an application seeking exemption on his behalf from appearing before the Court, wherein it was stated that he has been suffering from Bipolar Affective Disorder ('BPAD'), Generalized Anxiety Disorder ('GAD'), depression and anxiety; and has been under regular medical supervision by the concerned doctors. Further, during the course of arguments, attention of the learned Court was drawn to Sections 105 and 116 of the Mental Healthcare Act, 2017. The learned Metropolitan Magistrate vide order dated 28.10.2022, issued warrants of arrest against the present petitioner.

2.3. The aforesaid order dated 28.10.2022 was challenged by the present petitioner vide Criminal Appeal No. 302/2022, titled 'Ankur Abbot vs. Ekta Abbot' before the learned Additional Sessions Judge, whereby, the aforesaid appeal was dismissed vide order dated 23.12.2022.

2.4. Aggrieved by the orders passed by the learned Additional Sessions Judge and the learned Metropolitan Magistrate, petitioner has preferred the present revision petition.

SUBMISSIONS ON BEHALF OF PETITIONER

3. Learned Senior Counsel appearing on behalf of petitioner drew the attention of this Court to Section 105 of the Mental Healthcare Act, 2017 (hereinafter referred as 'the said Act'), which provides as under:

"105. Question of mental illness in judicial process.-If during any judicial process before any competent Court, proof of mental illness is produced and is challenged by the other party, the Court shall refer the same for further scrutiny to the concerned Board and the Board shall, after examination of the person alleged to have a mental illness either by itself or through a committee of experts, submit its opinion to the Court."

4. It was further submitted that petitioner is suffering from Bipolar Affective Disorder, which comes under the ambit of Section 2(s) of the Mental Healthcare Act, 2017, which provides as under:

""mental illness" means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by sub-normality of intelligence;"

5. Learned Senior Counsel appearing on behalf of petitioner submitted that the impugned order dated 23.12.2022, passed by the learned Additional Sessions Judge ignores the medical reports of