Karnataka High Court
Manojkumar S/O Yadavrao vs The State Of Karnataka on 13 September, 2022
Author: P.N.Desai
Bench: P.N.Desai
1
R
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13th DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL PETITION NO.200775/2022
BETWEEN:
MANOJKUMAR
S/O YADAVRAO
AGED. 43 YEARS,
R/O JAKNAL, TQ AURAD,
NOW AT VIDYA NAGAR COLONY,
BIDAR 585401.
...PETITIONER
(BY SRI: SANJAY KULKARNI, ADVOCATE)
AND:
1 . THE STATE OF KARNATAKA
THROUGH THE SUB-INSPECTOR OF POLICE
GANDHI GUNJ P.S BIDAR,
REP BY ADDL SPP
HIGH COURT OF KARNATAKA
BENCH AT KALABURAGI
KALABURAGI - 585 101.
2 . VIJAYKUMAR
AGE. 44 YEARS,
OCC. POLICE OFFICER,
R/O C/O GANDHI GUNJ P.S BIDAR,
BIDAR - 585 101. .....RESPONDENTS
(BY SRI:GURURAJ V. HASILKAR, HCGP )
THIS CRL.P FILED U/S.482 OF CR.P.C. PRAYING TO
QUASH THE COMPLIANT AND FIR DATED 07.06.2019 IN CRIME
NO. 96/2019 AND QUASH THE CHARGE SHEET IN CC.NO.
1506/2021 FILED BY THE I RESPONDENT POLICE AGAINST
THE PETITIONER HEREIN FOR THE OFFENCES PUNISHABLE
U/SEC. 309 OF IPC AND ALSO QUASH THE ORDER DATED
29.03.2021 PASSED BY THE PRL. CIVIL JUDGE AND JMFC-II,
2
BIDAR IN C.C NO. 1506/2021, I.E. TAKING COGNIZANCE AND
PROCEEDINGS THEREIN AGAINST THE PETITIONER HEREIN
FOR THE OFFENCES PUNISHABLE U/SEC. 309 OF IPC, WHICH
IS PENDING ON THE FILE OF THE PRL. CIVIL JUDGE JFMC-II
BIDAR, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT PASSED THE FOLLOWING:
ORDER
This petition is filed under Section 482 of the Code of Criminal Procedure, 1973, (for short hereinafter referred to as 'Cr.P.C.') with a prayer to quash the proceedings with respect to registration of FIR in Cr. No.96/2019 and filing charge sheet in C.C No.1506/2021 against the petitioner by the first respondent police for the offence punishable under section 309 Indian Penal Code, 1860, (for short hereinafter referred to as IPC) and also prayer to quash the order taking cognizance and issuance of summons to the petitioner by the learned Prl. Civil Judge and JMFC-II, Bidar.
Factual matrix:
2. It is contended by the petitioner that based on the complaint lodged by one Vijay Kumar C., Head Constable of Gandhi Gunj Police Station, an FIR came to 3 be registered against petitioner. It is alleged in the complaint that this petitioner gave a statement before complaint in hospital that petitioner is a Science Teacher working at Mathoshree Ahalyabai Holkar High School, Chitta Road, Bidar. The petitioner is also working as Home Guard Commandant, Bidar District on additional duty. The petitioner stated that he was harassed by the Management persons of the said School and they were demanding money from the petitioner and threatening the petitioner stating that he will be transferred from his present place of working. Unable to tolerate such harassment and ill-treatment, the petitioner attempted to commit suicide by consuming poison.
3. The police registered Crime No.95/2019 for offence punishable under section 384 IPC against the Management incharge persons and Cr.No.96/2019 against the petitioner. The investigating officer filed 'B' report in Cr.No.95/2019, same police filed the charge sheet against the petitioner for the offence punishable under section 309 IPC and the JMFC took cognizance and issued summons, which is assailed in the petition.4
4. Heard Shri. Sanjay Kulkarni, learned counsel for the petitioner and Sri. Gururaj V. Hasilkar, learned HCGP for the respondent No.1/State. Respondent No.2 is served and unrepresented. Perused the material on record.
Arguments:
5. Learned counsel for the petitioner argued that the contents of the complaint are a hearsay one.
According to the petitioner, he has consumed some poison. Investigation report shows that the petitioner has consumed Phenyl. Learned counsel argued that Cr.No.95/2019 came to be registered against the person incharge of Management of the said school for the offence punishable under Section 384 IPC based on statement given by the petitioner about the harassment on him. Accordingly, statement of this petitioner and witnesses were recorded. All witnesses stated that petitioner accidentally consumed Phenyl instead of milk. Based on the said statements, 'B' final report was filed by the police against the accused in Crime No.95/2019. Inspite of it, 5 Cr.No.96/2019 is registered against the petitioner for offence under section 309 IPC alleging that there was attempt to commit suicide by the petitioner. Learned counsel argued that the entire 'B' report filed by the police shows that, the same witnesses in Cr.No.96/2019 have stated in Cr.No.95/2019 that incident happened accidentally. Instead of having glass of milk, the petitioner has consumed phenyl kept in a glass placed by the side of glass of milk. They are the same witnesses in this case also. Only CW's numbers are changed in Cr.No.96/2019. CW-5 and CW-6 in Cr.No.95/2019 are CW-4 and CW-5 in case against petitioner. It is contended that a false case is filed against this petitioner at the instance of school management to further harass the petitioner. The learned counsel further argued that even if it is presumed that the petitioner has consumed Phenyl, the allegation of attempt to commit suicide is not legally tenable. Learned counsel argued that after the Constitutional validity of Section 309 I.P.C. was upheld by the Supreme Court of India in Smt. Gian Kaur V. State of 6 Punjab1, the Government of India amended the Mental Health Act 1987, and new Act i.e., The Mental Healthcare Act, 2017 came into force. Section 115 of the said Act states that any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code. With these contentions, the petitioner's counsel contended that continuing of proceedings against the petitioner needs to be quashed as it is an abuse of process of Court.
6. In support of his arguments, the learned counsel relied on the following decisions -
(i) Pratibha Sharma Vs. State of Himachal Pradesh & Anr, 2019 SCC Online HP 2619
(ii) Simi C.N. v. State of Kerala, 2022 SCC Online Ker 2184
(iii) Smt. Prathibha Das V. The State of Orissa, 2019 SCC Online Ori 217.
(iv) Settu, S/o. Marimuttu Vs. The State of Tamilnadu, 2021 SCC Online Mad 15723.1
(1996) 2 SCC 648 7
7. Learned HCGP appearing on behalf of the respondent No.1 State contended that the charge sheet shows that the petitioner has committed the offence punishable under section 309 IPC. Therefore, on verifying the police report and other materials, learned JMFC has rightly taken cognizance and issued summons. Therefore, learned HCGP argued that the said order needs no interference.
8. I have perused the complaint, the statement of the witnesses, the decisions relied on by the petitioner and the records before the court.
Point for determination:
9. From the above material on record and arguments, the following point arise for my consideration:-
a. Whether registration of FIR and filing chargesheet for offence under section 309 IPC and continuing proceedings against the petitioner amounts to abuse of process of court? If so whether the same is required to be quashed 8 under section 482 Cr.P.C to secure ends of Justice?
Exercise of power of Court under Section 482 Cr.P.C to quash the criminal proceedings.
10. It is necessary to refer section 482 Cr.P.C. which reads as under:-
"482. Saving of inherent powers of High Court- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
It is evident from the above section that criminal proceedings can be quashed if continuation of it is abuse of process of Court or to secure ends of justice.
11. To appreciate the exercise of High Court power under said section, it is necessary to refer to the principles enunciated by Hon'ble Supreme Court of India indicating How and under what circumstances Power under section 482 Cr.P.C. can be exercised. 9
12. A Three-Judge Bench of Hon'ble Apex Court in the case of State of Karnataka vs. L. Muniswamy and others, 1977 (2) SCC 699, held that the High Court is entitled to quash a proceeding, if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. It is held at para 7, relevant portion reads as under:
"7...... In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction."10
13. Hon'ble Apex Court in State of Haryana v. Bhajan Lal 2, has elaborately considered the scope and ambit of Section 482 Cr.P.C. Subsequently, Hon'ble Apex Court in Vineet Kumar and Ors. v. State of U.P. and Anr.,3 while considering the scope of interference under Sections 397 Cr.PC and 482 Cr.PC, by the High Courts, has held that High Court is entitled to quash a proceeding, if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceedings ought to quashed.
14. Hon'ble Apex Court in Prashant Bharti v. State (NCT of Delhi),4 while drawing strength from its earlier judgment titled as Rajiv Thapar and Ors v. Madan Lal Kapoor,5 reiterated that High Court has inherent power under Section 482 Cr.PC., to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charge, but such power must always be used with caution, care and circumspection.
In Prashant Bharti case referred supra, the Hon'ble Apex Court held at para 22, as under:-
2
1992 SCC (Cri) 426 3 (2017) VOL. 13 SCC 369 4 (2013) 9 SCC 293 5 (2013) 3 SCC 330 11
22. The proposition of law, pertaining to quashing of criminal proceedings, initiated against an accused by a High Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Cr.P.C.") has been dealt with by this Court in Rajiv Thapar & Ors. vs. Madan Lal Kapoor wherein this Court inter alia held as under: (2013) 3 SCC 330, paras 29-30)
29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.PC, if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution's /complainant's case without allowing the prosecution /complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be 12 sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this, the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:
30.1 Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
30.2 Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the 13 factual basis of the accusations as false.
30.3 Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
30.4 Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5 If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C.
Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.
15. The Hon'ble Apex Court in Asmathunnisa v. State of A.P.6, at para 12 held as under:-
"12. This Court, in a number of cases, has laid down the scope and ambit of the High Court's power under section 482 of the Code of Criminal Procedure. Inherent power under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself.6
(2011) 11 SCC 259 14 Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute."
16. In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Others7, Hon'ble Supreme Court, stated the circumstances under which the process can be quashed as under:-
"(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like".
17. Hon'ble Supreme Court of India in State of Karnataka v. L. Muniswamy & Others8, observed that 7 (1976) 3 SCC 736 8 (1977) 2 SCC 699 15 the wholesome power under section 482 Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice requires that the proceedings ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In this case, the court observed that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the Legislature. This case has been followed in a large number of subsequent cases of this court and other courts.
Offence under section 309 IPC.
18. In the light of above principles stated by Hon'ble Supreme Court of India, let me consider the exercise of power to quash the proceedings filed against the petitioner under section 309 IPC. It is useful to refer the said section. It reads as under:-
"309. Attempt to commit suicide. --Whoever attempts to commit suicide and does any act towards the commission of such offence, shall he punished with simple imprisonment for a term which may extend to one year 1[or with fine, or with both]."16
The above said section provide punishment to a person who attempt to commit suicide.
19. The term 'suicide' is not defined anywhere. Suicide is nothing but a person killing himself. Section 309 IPC punishes a man who attempt to commit suicide. When the constitutional validity of section 309 IPC was challenged in P. Rathinam v. Union of India and others9, the Hon'ble Supreme Court held that the provision of section 309 IPC, punishment to attempt to commit suicide is self-cruelty and irrational and violative of Article 21 of the Constitution and it deserves to be effaced from the statute book to humanise penal laws. But subsequently, said decision was overruled by the Five Judge bench of Hon'ble Supreme Court of India in case Smt. Gain Kaur v. State of Punjab referred supra and held that Section 309 IPC is constitutional. The court issued directions to make a provision to deal with such persons who attempt to commit suicide. In most of the countries, such an offence is now removed. Provision 9 (1994) 3 SCC 394 17 regarding punishment for attempt to suicide exists only in a few countries.
20. There is public debate and ongoing discussion about removal of section 309 IPC from the statute book stating that such provision is inhuman, irrespective of whether it is constitutional or unconstitutional. The reason assigned is that section 309 IPC provides double punishment for a person who is already fed up with his own life and who is suffering from severe stress, desires to end his life. Therefore, it is argued that it is unreasonable to inflict punishment upon a person who on account of so many causes, harassment, severe stress and depression decides to take away his own life, such a person deserves sympathy, appropriate treatment and counseling therefore he should not be punished. Law Commission of India Reports
21. The law commission has taken note of decision of the Hon'ble Supreme Court of India referred above and also the other recommendations, considered the desirability of repealing section 309 of IPC. 18
22. The 5th Law Commission of India in its 42nd Report June (1971) recommended repeal of Section 309 IPC being of the view that this penal provision is "harsh and unjustifiable". The apprehension that the repeal of the law criminalizing attempt to suicide would result in increase in suicide is betrayed by the fact that Sri Lanka repealed the law four years ago and the suicide rate is showing a trend in reduction. On the contrary, in Singapore suicide rates have been increasing in recent years despite there having suicide as a punishable offence.
23. The 18th Law Commission in its 210th Report titled 'Humanization and Decriminalization of Attempt to Suicide' submitted on October 17, 2008 made the following recommendations:
a. Suicide occurs in all ages. Life is a gift given by God and He alone can take it. Its premature termination cannot be approved by any society. But when a troubled individual tries to end his life, it would be cruel and 19 irrational to visit him with punishment on his failure to die. It is his deep unhappiness which causes him to try to end his life. Attempt to suicide is more a manifestation of a diseased condition of mind deserving of treatment and care rather than punishment. It would not be just and fair to inflict additional legal punishment on a person who has already suffered agony and ignominy in his failure to commit suicide.
b.The criminal law must not act with misplaced overzeal and it is only where it can prove to be apt and effective machinery to cure the intended evil that it should come into the picture.
c. Section 309 of the Indian Penal Code provides double punishment for a person who has already got fed up with his own life and desires to end it. Section 309 is also a stumbling block in prevention of suicides and improving the access of medical care to those who have attempted suicide. It is unreasonable to inflict punishment upon a person who on account of family discord, destitution, loss of a dear relation or other cause of a like nature 20 overcomes the instinct of self preservation and decides to take his own life. In such a case, the unfortunate person deserves sympathy, counseling and appropriate treatment, and certainly not the prison.
d. Section 309 needs to be effaced from the statute book because the provision is inhuman, irrespective of whether it is constitutional or unconstitutional. The repeal of the anachronistic law contained in section 309 of the Indian Penal Code would save many lives and relieve the distressed of his suffering.
e. The Commission is of the view that while assisting or encouraging another person to (attempt to) commit suicide must not go unpunished, the offence of attempt to commit suicide under section 309 needs to be omitted from the Indian Penal Code.
24. The Law commission observed as under :
(i) It is most intriguing and frustrating to observe that our penal laws which are nothing but the handiwork of Britishers have by and large remained untouched even after more than 60 years of independence. What a pity 21 that Britishers have themselves amended their penal laws and decriminalised attempt to suicide way back in 1961 but we are yet to even deliberate on taking any action on this decisive issue which subjects an already tormented person to further punishment and ignominy! Certainly, we should not be the copycat of Britishers but can we deny that increasingly more and more countries like Netherlands, Belgium, Luxembourg, Switzerland, Oregon and Washington in USA and Thailand are even legalising euthanasia or mercy killing for terminally ill persons? and we deny the decriminalization of attempted suicide by all countries in Europe, North America and Canada? Can we deny that it is only a handful of countries in the world like Pakistan, Bangladesh, Malaysia, Singapore and India who still punish attempt to suicide under their penal laws? Are we still waiting only to be the last country in the world to decriminalise attempt to suicide?
(ii) Let us not forget that Section 309 of I.P.C.
tantamount to brazenly punishing a person who is already suffering endlessly by not only sending him/her 22 to prison for one year but also imposing fine which only serves to make their life more miserable by further compounding their endless problems. How can this grave injustice be ever justified? Can an ordinary person even dream to commit suicide? It is under very compelling adverse circumstances that a person resorts to taking the extreme step, of attempting to commit suicide which must be fully taken into account. Such people suffering from severe depression need the company of good doctors and not jailors which we all must also now realise and appreciate.
(iii) Ours is a democracy which means that it is by the people, of the people and for the people. Constitution locates power that resides in the people. It is the people's power for people's benefit. Constitution creates rights and duties. All most all our demands get converted into right seven our feelings, emotions is governed by the rights and duties we have. As we have got the right to live life with all dignity so we should also have right to die as when it is necessary by law in certain situation. Constitution is a social document. It is the society in its 23 political aspect. We can't understand its nature without understanding the chief characteristics of the society. If the constitution is such that it has taken into its consideration, the social set up, then only will it stand the test of time. Constitution and society grows, develops together and gets intertwined in each other. The constitution takes into account change and developments in the society.
(iv) Therefore, it is wrong to say that the Indian Penal Code is a modern code in every possible sense. Laws are made for the people and it should be change to meet the aims and aspiration of the changing society. Ultimately, the aim should be to evolve a consensual and conceptual model effectively handling the evils without sacrificing human rights. Therefore section 309 should be deleted from the Indian penal Code because as mentioned in Maruti Shripati Dubal that "No deterrence is going to hold back those who want to die for a special or political cause or to leave the world either because of the loss of interest in life or for self deliverance.
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(v) Thus in no case does the punishment serve the purpose and in some cases it is bound to prove self defeating and counter - productive". In any case a person should not be forced to enjoy the right to live to his detriment, disadvantage, and disliking. Further, the "Right to life" under Article 21 should not include "right to die" because this provision might increase the rates of suicides in the country and moreover the "Right to life' is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life and, therefore incompatible and inconsistent with the concept of "right to life".
(vi) Although the judgment given by Supreme Court in Gyan Kaur referred supra is followed, but section 309 should be scrapped from the I.P.C. the 'right to die' should not be expressively included in the "right to life", because "Life is a gift given by God and He alone can take it". Its premature termination cannot be approved by any society. Neither it should be penalised. Attempt to commit suicide is a 'manifestation of diseased mind'. So what is to be done is rightly stated by the decision given 25 in P. Rathinam's case "What is needed to take care of suicide prone persons are soft words and wise counseling (of a psychiatrist), and not stony dealing by a jailor following harsh treatment meted out by a heartless prosecutor. Section 309 of the Penal Code deserves to be effaced from the statute book to humanise our penal laws. It is a cruel and irrational provision, and it may result in punishing a person again (doubly) who has suffered agony and would be undergoing ignominy because of his failure to commit suicide."
(vii) The desirability for deletion of Section 309 of I.P.C. is also the view supported by the majority of states in India. Twenty five Indian states except Madhya Pradesh, Bihar and Sikkim have favoured striking down I.P.C. Section 309 that criminalises attempt to commit suicide by making it punishable with imprisonment.
(viii) In conclusion, it can be said that to resolve this debate, the conflict between the principle of sanctity of life and the rights of self determination and dignity of an individual is to be resolved first and right to die should 26 not be generalized but should be exercised as an exception in the "RAREST OF RARE CASES" like Death Penalty in India".
Mental Health Care Act, 2017
25. The Parliament after taking into consideration the directions issued by various courts in India, representation by number of Social Organisations and recommendation of Law Commission reports amended The Mental Health Act, 1987 and new Act titled as The Mental Health Care Act, 2017 came into force with effect from 7th April 2017. The new Act 2017 provided for mental health care and services for persons with mental illness and to protect, promote and fulfill the rights of such persons during delivery of mental healthcare and services and for matters connected therewith or incidental thereto. The statement of objects and reasons of the said Act reads as under:-
STATEMENT OF OBJECTS AND REASONS The United Nations Convention on the Rights of Persons with Disabilities, which was ratified by the Government of India in October 2007 made it obligatory on the Government to align the policies 27 and laws of the country with the Convention. The need for amendments to the Mental Health Act 1987 was felt by the fact that the related law, ie, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 was also in the process of amendment The Mental Health Act 1987 could not protect the rights of persons with mental illness and promote their access to mental healthcare in the country.
2. In light of above, it is proposed to bring in a new legislation by repealing the Mental Health Act, 1987, and-
(a) Recognising that:
(i) Persons with mental illness constitute a vulnerable section of society and are subject to discrimination in our society;
(ii) Families bear financial hardship, emotional and social burden of providing treatment and care for their relatives with mental illness;
(iii) Persons with mental illness should be treated like other persons with health problems and the environment around them should be made conducive to facilitate recovery, rehabilitation and full participation in society:
(iv) The Mental Health Act, 1987 was insufficient to protect the rights of persons with mental illness and promote their access to mental healthcare in the country.
(b) And in order to:
(i) Protect and promote the rights of persons with mental illness during the delivery of healthcare in institutions and in the community;
(ii)Ensure healthcare, treatment and rehabilitation of persons with mental illness, is provided in the least restrictive environment possible, and in a 28 manner that does not intrude on their rights and dignity. Community-based solutions, in the vicinity of the person's usual place of residence, are preferred to institutional solutions;
(iii) Provide treatment, care and rehabilitation to improve the capacity of the person to develop his or her full potential and to facilitate his or her integration into community life,
(iv) Fulfill the obligations under the Constitution and the obligations under various International Conventions ratified by India;
(v) Regulate the public and private mental health sectors within rights framework to achieve the greatest public health good;
(vi) Improve accessibility to mental healthcare by mandating sufficient provision of quality public mental health services and non-discrimination in health insurance;
(vii) Establish a mental health system integrated into all levels d general health care; and
(viii) Promote principles of equity, efficiency and active participation of all stakeholders in decision making.
3. The Bill seeks to achieve the above objects. ACT 10 OF 2017 The Mental Healthcare Bill having passed by both the houses of the parliament received the assent of the President on 7th April 2017 It came on the Statute Book as THE MENTAL HEALTHCARE ACT, 2017 (10 of 2017) (Came into force on 29-5-2018).
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26. Therefore, in view of the object and reasons in bringing New Mental Healthcare Act, 2017 and in view section 115 in the said Act which raises presumption in favour of a person attempting to commit suicide, it is necessary to refer section 115. It reads as under:
Section 115. Presumption of severe stress in case of attempt to commit suicide.-
(1) Notwithstanding anything contained in section 309 of the Indian Penal Code (45 of 1860) any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.
(2) The appropriate Government shall have a duty to provide care, treatment and rehabilitation to a person, having severe stress and who attempted to commit suicide, to reduce the risk of recurrence of attempt to commit suicide."
It is evident that said section starts with non- obstante clause, meaning thereby, unless the Investigating Officer is satisfied that attempt to suicide is not under severe stress, he cannot proceed to register the case. In the light of above referred section 115, it is to be seen whether continuation of proceedings against 30 the petitioner is abuse of process of court needs to be quashed by the court in the ends of justice.
27. It is pertinent to note that on the basis of statement made by the petitioner which was recorded by the police in the hospital, a case in Cr.No.95/2019 was registered against the President of the said Education Institution by name Sri. Amrutha Chamakodhey and teachers Sri. Siddarama Nijampura and Digambar Aloorey for the offence punishable under section 384 IPC. It is alleged by the petitioner in his complaint that all these accused persons were ill- treating the petitioner, mentally harassing him and threatening him. They also used to extract "haftha" amount and forced the petitioner to transfer the said amount to the account of the President and Head Master of the school. They threatened the petitioner stating that if he does not transfer the amount, petitioner will be transferred to some other place. This harassment continued from the year 2017. It is stated that the petitioner was suffering from diabetes disease. In Cr.No.95/2019, the investigating officer filed 'B' 31 report stating that accidentally the petitioner has taken the glass containing phenyl. It also stated that all the teachers were sitting and having tea and milk in a room, the sweeper had kept phenyl glass there. Without noticing the phenyl in the glass, the petitioner has consumed the said phenyl. The copies of the medical reports are produced along with the memo. The Doctor report shows that petitioner who was admitted to hospital had allegedly consumed phenyl compound. Hence, 'B' report was filed by the police against the above said accused who are members of the school management and who allegedly harassed the petitioner.
28. It is also evident that one Manjanagouda Patil, Investigating Officer who filed 'B' report in Crime No.95/2019, has recorded the statements of witnesses Vijayakumar, S/o Shankareppa Dadhey and Syeda Salawoddina, S/o Sharifmiyya in Crime No.96/2019 and partly investigated the matter. He is also cited as witness in this case. The said Investigating Officer in this case is the also one of the Investigating Officer who partly investigating the matter in other case. The contents of 32 petitioner's statement and the allegation made against the management persons in both the crime nos. are the same. The allegation is that this petitioner without tolerating the harassment, ill-treatment and forcible extraction of money by the President and other management staff of his school had lodged the complaint. That itself shows that the petitioner was suffering from severe stress. The police continued the case against this petitioner when petitioner himself is the victim of such harassment and mental agony stated to have been caused by the School management members.
29. Without tolerating such stress, harassment, under very compelling, adverse circumstances, the petitioner appears to have resorted to taking such extreme step of attempt to commit suicide.
30. The Himachal Pradesh High Court in the case of Pratibha Sharma vs. Himachal Pradesh and Anr.,10 dealt with section 25 of the Evidence Act and also Article 20(3) of the Constitution of India as to whether the statement made by the person who attempted to commit 10 2019 SCC Online HP 2619 33 suicide would not be used against him and whether the same is hit by section 25 of the Indian Evidence Act it violates Article 20(3) of the constitution of India. The Court referred to Section 154, 161, 162 Cr.P.C also. It is held at para 17 and 19 as under:
17. If contents of FIR sought to be quashed are read in its entirety, it certainly compels this Court to point out callous and irresponsible approach of police officials, who lodged the FIR on the basis of the statement made by the petitioner. In the first part of FIR sequence of events which allegedly led petitioner to make an attempt to commit suicide stands recorded/ taken note of, but interestingly in second part of the FIR police despite having noticed prayer made on behalf of the petitioner to act against her in laws and husband, proceeded to lodge case under Section 309 of IPC against the petitioner and not against her in laws and husband under Section 306 of IPC. As has been observed hereinabove, prosecution with a view to prove its case is necessarily required to examine petitioner being complainant and if permitted, she would be virtually called upon to depose against herself, which is otherwise not permissible in view of the provisions contained under Article 20(3) of the Constitution of India.
19. First Information Report given by the accused to the police Officer amounts to confessional statement. Reliance is placed upon the judgment rendered by Hon'ble Apex Court in Aghnoo Nagesia vs. State of Bihar, AIR 1966 Supreme Court 119, wherein it has been held as under:-
9. Section 25 of the Evidence Act is one of the provisions of law dealing with confessions made by an accused. The law relating to confessions is to be found generally in ss. 24 to 30 of the Evidence Act and ss. 162 and 164 of the Code of Criminal Procedure, 1898 Sections 17 to 31 of the Evidence 34 Act are to be found under the heading "Admissions".
Confession is a species of admission, and is dealt with in ss. 24 to 30. A confession or an admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law. Section 24 excludes confessions caused by certain inducements, threats and promises. Section 25 provides: "No confession made to a police officer, shall be proved as against a person accused of an offence." The terms of s. 25 are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. The expression "accused of any offence" covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. Section 26 prohibits proof against any person of a confession made by him in the custody of a police officer, unless it is made in the immediate presence of a Magistrate. The partial ban imposed by S. 26 relates to a confession made to a person other than a police officer. Section 26 does not qualify the absolute ban imposed by s. 25 on a confession made to a police officer. Section 27 is in the form of a proviso, and partially lifts the ban imposed by ss. 24, 25 and 26. It provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any enquiry or trial in respect of the offence Order investigation, save as mentioned in the proviso and in cases falling under sub-s (2), and it specifically provides that nothing in it shall be deemed to affect the provisions of S. 27 of the Evidence Act. The words of s.162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a 35 Magistrate under s.164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. Thus, except as provided by s.27 of the Evidence Act, a confession by an accused to a police office- is absolutely protected under s.25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by s.162 of the Code of Criminal Procedure, and a confession to any other person made by him while in the custody of a police officer is protected by S.26, unless it is made in the immediate presence of a Magistrate. These provisions seem to proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and should not be used in evidence against him. They are based upon grounds of public policy, and the fullest effect should be given to them.
10. Section 154 of the Code of Criminal Procedure provides for the recording of the first information. The information report as such is not substantive evidence. It may be used to corroborate the informant under s.157 of the Evidence Act or to contradict him under s. 145 of the Act, if the informant is called a,,, a witness. If the first information is given by the accused himself, the fact of his giving the information is admissible against him as evidence of his conduct under s. 8 of the Evidence Art. If the information is a non-confessional statement, it is admissible against the accused as an admission unders, 21 of the Evidence Act and is relevant, see Faddi v The State of Madhya Pradesh(1) explaining Nisar Ali v. State of U.P. (1) and Dal Singh v. King Emperor(1). But a confessional first information report to a police officer cannot be used against the accused in view of S. 25 of the Evidence Act.
31. The Himachal Pradesh High Court referred to provisions of section 115 of the Mental Healthcare Act 2017, raising presumption in favour of person making an 36 attempt to commit suicide. What is the care and caution that has to be taken by the Investigating Officer to register the case on the basis of the statement made by such person is also discussed. At para 20, it is held as under:
20.Having carefully perused section 115 of the Mental Healthcare Act, 2017, this Court is in complete agreement with Mr. Hamender Singh Chandel, learned counsel representing the petitioner that there is presumption in favour of person making an attempt to commit suicide that he/ she was under severe stress and onus, if any, to prove otherwise is always upon the police authorities. If aforesaid provisions of law is read in its entirety, it certainly suggests that before registering case, if any, under Section 309 of IPC, police is required to establish on record that person against whom it intends to register case under Section 309 of IPC is/was not under any kind of stress disentitling him/ her from invoking Section 115 of the Act. In the case at hand, case under Section 309 of IPC came to be registered on the basis of the statement made by the petitioner herself that she on account of mental harassment and torture being meted to her by her husband and in laws was under severe stress but interestingly, that sole statement of the petitioner has been made basis to register case against her under Section 309 of IPC. In view of the specific expression used i.e. "unless proved otherwise", it is/was incumbent upon the police to bring on record material suggestive of the fact that petitioner while making an attempt to commit suicide was not suffering from any kind of mental disorder. There is no material available on record suggestive of the fact that the petitioner made an attempt to commit suicide to blackmail, 37 intimidate and to create public disorder and as such, there is no force in the submissions of learned Additional Advocate General that petitioner is not entitled to draw benefit of presumption available in her favour under Section 115 of the Mental Healthcare Act. In this regard, reliance is placed upon the judgment rendered by Hon'ble Apex Court in Common Cause (A Registered Society) vs. Union of India and another, (2018) 5 SCC 203, wherein it has been categorically held that onus is upon the prosecution to rebut presumption available in favour of a person committing suicide under Section 115 of the Mental Healthcare Act.
Relevant para No.366 of the judgment is reproduced here in below:
"366. This Court's holding in Gian Kaur vs. State of Punjab(1996) 2 SCC 648 that the right to life does not include the right to die in the context of suicide may require to be revisited in future in view of domestic and international developments "Humanization and Decriminalization of Attempt to Suicide", Law Commission of India (Report No. 210, 2008); Rajeev Ranjan, et al, "(De) Criminalization of Attempted Suicide in India: A Review", Industrial Psychiatry Journal (2014), Vol. 23, issue 1, at page 4-9, pointing towards decriminalization of suicide. In India, the Mental Healthcare Act 2017 has created a "presumption of severe stress in cases of attempt to commit suicide".
Section 115(1) provides thus:
"Notwithstanding anything contained in section 309 of the Indian Penal Code any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code."38
Under Section 115(2), the Act also mandates the Government to provide care, treatment and rehabilitation to a person, having severe stress and who attempted to commit suicide, to reduce the risk of recurrence. Section 115 begins with a non - obstante provision, specifically with reference to Section 309 of the Penal Code. It mandates (unless the contrary is proved by the prosecution) that a person who attempts to commit suicide is suffering from severe stress. Such a person shall not be tried and punished under the Penal Code. Section 115 removes the element of culpability which attaches to an attempt to commit suicide under Section 309. It regards a person who attempts suicide as a victim of circumstances and not an offender, at least in the absence of proof to the contrary, the burden of which must lie on the prosecution. Section 115 marks a pronounced change in our law about how society must treat and attempt to commit suicide. It seeks to align Indian law with emerging knowledge on suicide, by treating a person who attempts suicide being need of care, treatment and rehabilitation rather than penal sanctions.
32. The decision referred in the above case are similar to the facts of the petitioner in this petition. The principles stated in Pratibha Sharma case supra aptly apply to petitioner's case.
33. In the present case petitioner himself gave a statement alleging harassment and threat given to him by the President and the Office bearers of the school. Petitioner also narrated the circumstances under which 39 the said incident happened. The allegation in the petition shows that he was continuously under severe stress because of intolerable atmosphere created by the school management authorities and it appears he decided to take such extreme step. If the petitioner would have succeeded in his attempt to commit suicide, no case would have been continued against him. The act of the Investigating Officer without considering the circumstance which forced the petitioner to resort to such extreme step, without understanding/examining section 115 of the Mental Healthcare Act, 2017, filed the charge sheet against the petitioner, but filed 'B' report against the accused in crime no.95/2019. Such a course of action by police needs to be condemned.
34. The Orissa High Court, in the case of Smt. Prathibha Das V. The State of Orissa11 and referring to section 115 of the Mental Health Care Act, 2017 quashed the criminal proceedings. It is observed at para No.8 as under:
11
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8. "For want of criminal intent, the offence as alleged cannot be said to have been made out against the petitioner-mother and continuance of the proceedings against her is an abuse of process of an Court."
35. The Kerala High Court in the case of Simi C.N. v. State of Kerala12, relying on the observations made by Orissa and Himachal Pradesh High Court referred above , quashed the criminal proceedings under section 309 IPC.
36. Further, The Madras High Court in the case of Settu, S/o. Marimuttu Vs. The State of Tamilnadu13 at para 9 observed that section 115 of the Mental Healthcare Act does not consider the act of attempt to commit suicide as an offence.
Conclusion
37. Suicide is more of a concept related to moral, religious and psychological qualities of the person in the existing socio - economic and cultural circumstances of the society. Instead of having sympathetic approach towards the victim, if further punishment would be 12 2022 SCC Online Ker 2184 13 2021 SCC Online Mad 15723 41 inflicted upon him, it would be simply ruthless act. The very essence of section 309 IPC also doesn't mandate for punishment in every case, rather it only sets the higher limit of such punishment. The courts are endowed with enormous power to ensure that unnecessary harsh dealing or injustice is not caused to the victims who are under severe mental stress. It is to be remembered that the life of a human being is very important.
38. It is to be noted here that after coming into force of new Mental Healthcare act 2017, the implementation of provisions of the said act appears to be not significant. Though there are developments in the Judicial decisions by invoking the provisions of the said act to safe guard the persons with mental illness and stress but the concerned authorities and organizations appears to be slow in implementation of the act in its letter and spirit. It is stated that the National Judicial Academy and State Judicial Academies in the country are conducting regular Seminars and Workshops on the Mental Healthcare Act 1987. There are rise in the cases of 42 attempt to commit suicide in the last few years as per the data from the National Crime Records Bureau. Day in and day out we see both in print and electronic media, the people committing suicide for silly and inconceivable reasons. Though one cannot define the reasons for attempt to commit suicide but broadly the reasons can be categorized as unemployment, isolation stress, academic failures, financial difficulties, debt, family and relationship issues, helplessness, depression, fright desperation, other Psychological disorders and frustration. It is high time that the Police authorities, medical professionals, the welfare associations, the civil society groups and other stake holders needs to be sensitized regarding the object and reasons for enacting Mental Healthcare Act 2017 and take such remedial measures to address an act of attempt to commit suicide.
39. It is the duty of the society and the stakeholders concerned to find out the reasons for such an attempt and try to bring him/her to the main stream of the society. Such persons needs to be treated with sympathy, care and love.
43
40. It is not that the petitioner intended to get some favorable decisions or order in his favour or he was instigated by some other external force to commit such an act in order to threaten, intimidate or harass the School management members. It is not motivated by any group or association so as to bring undue influence or to take coercive measurement on the management to head to his request. If the act is committed by the petitioner under any of the above stated circumstances then such an act should be viewed differently. Because there are instances and incidents where in people attempt to commit suicide just to force the authorities or persons to comply with their request or demand, whether legitimate or not and go on disturbing the public peace and cause disorder in the society. In this case, the alleged act was not to blackmail anybody or intimidate any person. The act of the petitioner is not to create a public disorder. The circumstances which forced the petitioner attempt to commit suicide are totally different. Such an act does not attract the offence under section 44 309 of the IPC in view of section 115 of Mental Healthcare Act, 2017.
41. In the light of the principles stated in the above referred decisions and discussion if the allegation against the petitioner is considered, in my considered view, continuation of the criminal proceedings against the petitioner is nothing but wasting the judicial time. Therefore, the FIR registered against the petitioner, the charge sheet filed, the cognizance taken, the process issued against the petitioner and subjecting the petitioner for ordeal of undergoing the trial is nothing but an abuse of process of court. Such proceedings deserves to be quashed to secure ends of justice.
Accordingly, I pass the following:
ORDER
(i)The petition is allowed.
(ii) The entire proceedings arising out of Crime No.96/2019 of Gandhi Gunj Police station Bidar, i.e., taking cognizance, registering the criminal case and 45 issuing process against the petitioner by order dated 29.03.2021 in C.C.No.1506/2021 pending on the file of Prl. Civil Judge & JMFC-II, Bidar, is hereby quashed.
(iii) This Court places on record its appreciation for the able assistance rendered by Sri. Sanjay Kulkarni, learned counsel for the petitioner.
(iv) No costs.
Sd/-
JUDGE *mn/-