MARY DENIL ALIAS ASHA Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is the accused in C.C.No.376 of 2023 pending on the files of the Judicial First Class Magistrate Court - II, Ernakulam.

(2.) Learned Counsel for the petitioner contended that even if the allegation of attempt to commit suicide is accepted as true, petitioner cannot be prosecuted and punished in view of the presumption of her being under severe stress and consequential prohibition contained in Sec. 115(1) of the Mental Healthcare Act, 2017 ('the Act' for short). It is submitted that the medical records would show that the petitioner was harbouring a suspicion that her neighbours were intent on harming her family. The petitioner had, in fact, submitted a complaint raising such allegation to the police on 2/11/2022. The fear psychosis had prompted her to jump from the terrace, unmindful of the consequence. Learned Counsel submitted that, the Law Commission, in its 42nd Report submitted way back in 1970-1971 had recommended deletion of the offence of attempt to commit suicide from the IPC. Unfortunately, the bill passed in that regard was not passed as the Parliament got dissolved. Later, in P.Rathinam v. Union of India and Another [(1994) 3 SCC 394], even though a two judge Bench of the Supreme Court struck down Sec. 309 of IPC as unconstitutional, in Gian Kaur v. State of Punjab [(1996) 2 SCC 648], a five judge Bench overruled the decision. Thereafter, in Common Cause (A registered Society) V. Union of India and Another, [(2018) 5 SCC 1], the Supreme Court again recommended decriminalising attempt to commit suicide. Relying on the decisions in Simi C.N. v. State of Kerala [ILR 2022 (2) Ker. 798] and Leby Sajeendran v. State of Kerala [2024 (6) KLT 81], it is contended that, after taking note of the presumption and prohibition contained in Sec. 115(1) of the Act, this Court has quashed the proceedings against similarly placed accused.

(3.) Learned Public Prosecutor submitted that, in spite of the suggestion in Common Cause (supra), Sec. 309 continued in the Penal Code until the Code itself was repealed by the Bharatiya Nyaya Sanhita, with effect from 1/7/2024. It is pointed out that as per Sec. 226 of BNS, attempt to commit suicide with intent to compel or restrain the exercise of lawful power is still a punishable offence. According to the Public Prosecutor, the question whether the prosecution succeeded in discharging its burden of proving that the petitioner was not under severe mental stress when she attempted to commit suicide is dependant upon the evidence to be tendered and the prosecution cannot be pre-empted from discharging its burden by quashing the further proceedings.