Judgment

HANSARIA, J.:- Gandhiji once observed :

"Death is our friend, the trust of friends. He delivers us from agony. I do not want to die of a creeping paralysis of my faculties-a defeated man".

The English poet William Ernest Henley wrote:

"I am the master of my fate, I am the captain of my soul".

2. Despite the above, Hamlets dilemma of "To be or not to be" faces many a soul in times of distress, agony and suffering, when the question asked is "To die or not to die". If the decision be to die and the same is implemented to its fructification resulting in death, that is the end of the matter. The dead is relieved of the agony, pain and suffering and no evil consequences known to our law follow. But if the person concerned be unfortunate to survive, the attempt to commit suicide may see him behind the bar, as the same is punishable under Section 309 of our Penal Code.

3. The two petitions at hand have assailed the validity of Section 309 by contending that the same is violative of Articles 14 & 21 of the Constitution and the prayer is to declare the section as void. The additional prayer in Writ Petition (Crl) 419 / 87 is to quash the proceedings initiated against the petitioner (Nagbhusan) under Section 309.

4. The judiciary of this country had occasion to deal with the aforesaid aspect; and we have three reported decisions of the three High Courts of the country, namely, Delhi, Bombay and Andhra Pradesh on the aforesaid question. There is also an unreported decision of the Delhi High Court. It would be appropriate and profitable to note at the threshold what the aforesaid three High Courts have held in this regard before we apply our mind to the issue at hand.

5. The first in point of time is the decision of a Division Bench of Delhi High Court in State v. Sanjay Kumar, 1985 Cri LJ 931, in which the Court was seized with the question as to whether the investigation of the case under Section 309 should be allowed to continue beyond the period fixed by Section 368, Cr.P.C. Some loud thinking was done by the Bench on the rationale of Section 309, Sachar, J., as he then was, observed for the Bench (para 1):

"It is ironic that Section 309, IPC still continues to be in our Penal Code........ Strange paradox that in the age of votaries of Euthanasia, suicide should be criminally punishable. Instead of the society hanging its head in shame that there should be such social strains that a young man (the hope of tomorrow) should be driven to suicide compounds its inadequacy by treating the boy as a criminal. Instead of sending the young boy to psychiatric clinic it gleefully sends him to mingle with criminals.......The continuance of Section 309, IPC is an anachronism unworthy of a human society like ours. Medical clinics for such social misfits certainly but police and prisons never. The very idea is revolting. This concept seeks to meet the challenge of social strains of modern urban and competitive economy by ruthless suppression of mere symptoms --- this at tempt can only result in failure. Need is for humane, civilised and socially oriented outlook and penology ........No wonder so long as society refuses to face this reality its coercive machinery will invoke the provision like Section 309, IPC which has no justification right to continue to remain on the statute book."

6. Soon came the Division Bench decision of Bombay High Court in Maruti Shripati Dubal v. State of Maharashtra, 1987 Cri LJ 743, in which the Bench speaking through Sawant, J., as he then was, on being approached for quashing a prosecution launched against the petitioner under Section 309 of the Penal Code on the ground of unconstitutionality of the section, took the view and that the section was ultra vires being violative of Articles 14 and 21 and was therefore struck down. We would note the reasons for the view taken later.

7. Close on the heels was the decision of a Division Bench of Andhra Pradesh High Court in C. Jagadeeswar v. State of Andhra Pradesh, 1983 Cri LJ