STATE OF MAHARASHTRA Vs. MARUTI SHRIPATI DUBAL

JUDGEMENT

(1.) This appeal is directed against the judgment dated 25-9-96 passed in writ petition No. 641 of 1986 by the High Court of Bombay upholding the challenge made by the respondent Shri Maruti Shripati Dubal about the vires of Section 309 of the Indian Penal Code. The respondent Shri Dubal was a Police Constable attached to the Bombay City Police Force and on the date of the incident, he had already put in 19 years service as a Constable. In 1981, he met with an accident and suffered head injuries and although he recovered from such injury he became mentally ill and continued to be so until that day. He attempted to commit suicide by pouring kerosene on his body and lighting match stick as alleged by the prosecution. Before the said case of attempted suicide could be decided by the Court, the respondent challenged the vires of Section 309 of the IPC before the High Court of Bombay by filing the writ petition and by the impugned judgment, the High Court found that Section 309 was ultra vires. Articles 14 and 21 of the Constitution.

(2.) In Criminal Appeal No. 461 /96 (Lokendra Singh v. State of Madhya Pradesh) the Constitution bench of this Court by Judgment dated 21st March, 1996 since reported in (1996) 2 SCC 648 : (1996 AIR SCW 1336) has upheld the vires of Section 309 Indian Penals Code by indicating that the said section does not violate Articles 14, 19 and 21 of the Constitution of India. The impugned decision of the Bombay High Court was also referred for consideration in Lokendra Singh's case but the decision of the Bombay High Court in Maruti Sripat's case has been expressly overruled. The appeal, therefore, is to be allowed. The impugned judgment of the Bombay High Court is set aside.

(3.) It, however, appears to us that the alleged attempt to commit suicide had been made by the respondent on 27th April, 1985 and the said case had not been tried as yet because of the challenge at the threshold made by the respondent questioning the constitutional validity of Section 309, IPC. As Section 309, IPC is constitutionally valid as held by the Constitution Bench of this Court, the criminal case initiated on the charge of attempt to commit suicide requires to be decided on merits.