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IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
M.B. Ghodeshwar R.M. Lodha, JJ.
Naresh Marotrao Sakhre and another.... Petitioners.
Versus
Union of India and others.... Respondents.
Criminal Writ Petition No. 76 of 1994, decided on 17-8-1994.
Advocates appeared :
A.V. Gupta, for the petitioner.
R.G. Agrawal, A.G.P., for the respondent Nos. 2 to 4.
Section 482-See Indian Penal Code, 1860-Sections 107, 306 and 309.
Sections 107, 306, and 309-Conslitulion of India, Article 21 - Criminal Procedure Code, 1973-Section 482-Scope.
A comparison of the provisions of Section 306 and the then Section 309 would apparently show that the offence which is committed under Section 306 of the I.P.C. relates to cases of person who aid or abet the commission of suicide. Commission of suicide which takes place because of the instigation by any other person by intentionally aiding a person to commit suicide is, therefore, an offence under Section 306 of the I.P.C. Suicide is intentional taking of ones own life and, therefore, the suicide is neither defined in the I.P.C. nor has been made an offence. However, a person who had made an attempt to commit suicide was liable to an offence under Section 309 of the I.P.C. but the same has been held unconstitutional and ultra vires in P Rathinam s case (cited supra). In the words of the Apex Court:
"It is 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. Then an act of suicide cannot be said to be against religion, morality or public policy, and an act of attempted suicide has no baneful effect on society. Further suicide or attempt to commit it causes no harm to others, because of which States interference with the personal liberty of the concerned persons is not called".
The heart and soul of the aforesaid observations of the Supreme Court declaring the provisions of Section 309 as unconstitutional is the conclusion of the English poet William Earnest Henley:
"I am the master of my fate. I am the captain of my soul."
However, the offence under Section 306 is entirely different based on reasonable public policy to prevent the other persons involvement, instigation and/or aiding in terminating ones life. The provisions of Section 306 of the I.P.C. are, therefore, legal and rational. If the other person by his instigation, aiding or abatement leads one to liquidate his life, he is certainly guilty of a crime and such crime which has been made punishable under Section 306 of the I.P.C. has full justification. Suicide which is an act of self-destruction or attempt to suicide stands entirely on different footing and Section 306 which makes abatement of suicide as an offence is entirely different, and operates in entirely different and distinct circumstances. Therefore, it is fallacious to urge that if, the attempt to commit suicide is not considered as an offence, it must logically follow that aiding and abetting attempt must also not be an offence.
Commission of suicide was never an offence under the Indian Penal Code and is not an offence. Attempt to commit suicide which was an offence under Section 309 of the I.P.C. has been effected from the statute on its having been declared unconstitutional and violative of Article 21 of the Constitution of India and thus, attempt to commit suicide is also not an offence. But if a person commits suicide for any reason, which may be varied, like dowry quarrel with spouse, irretrievable break down of marriage, fighting or otherwise unhappy and strained relations with in- laws, illegitimate pregnancy, martial infidelity, illicit relations, unfulfilled love, poverty, unemployment, incurable disease, superstitious achievements like Sati or self-immolation or for any other reason which is not voluntary but directly or indirectly at the deliberate and intentional act of other person by way of instigation which may include insinuation, instance, incitement, inducement, encouragement, facilitation, hints, provocation, stimulation, aiding etc. or as a result of illegal omission of a thing consequent to conspiracy, the other person who instigated that person to commit suicide or engaged in a conspiracy to commit it or intentionally aided that person to commit suicide, the other person is certainly guilty of crime and deserves to be punished. Section 306 of the I.P.C., which takes care of aforementioned situation and provides for punishment to the person who abetted commission of suicide is absolutely justified, if looked and tested from the touchstone of reasonableness and public morality. Such provision by no stretch of imagination can be said to be violative of Article 21 of the Constitution of India. A person is master of his life and if one decides to terminate ones life voluntarily without the aid or abatement of other person, the State may have nothing to do, but when commission of suicide is result of circumstances which fall in the category of abatement as aforesaid and defined under Section 107 of the I.P.C. the State is very much concerned in bringing that other person to book.
Attempt to suicide, an offence provided under section 309 of the Indian Penal Code, having been effaced from the statute book and declared violative of Article 21 of the Constitution of India by the Apex Court, has led the petitioner to seek a writ of mandamus or any other appropriate writ, order or direction for declaration of section 306 of the Indian Penal Code (for short "the I.P.C.") as unconstitutional and ultra-vires of Articles 14 and 21 of the Constitution of India. The additional relief sought for in the writ petition is that the proceedings before the Chief Judicial Magistrate, Nagpur, in Crime No. 86 of 1994 be quashed and declared wholly untenable.
2. Before we examine the constitutional validity of section 306 of the I.P.C., the only point urged by the learned Counsel for the petitioner, a brief resume of facts may be stated.
3. Crime No. 86 of 1994 was registered at Imambada Police Station, Nagpur, against the petitioners on 26-4-1994 for the alleged offence under section 306 of the I.P.C. for abetment of suicide of Smt. Lilawati, mother of the petitioner No. 2 and mother-in-law of the petitioner No. 1. An offence under section 34 of the I.P.C. was also registered in addition to section 306 of the I.P.C. against the petitioners. Both the petitioners were arrested on 26-4-1994 by the police officers of Imambada Police Station in the said crime, produced before the Chief Judicial Magistrate on 27-4-1994 and released on bail under the orders of the Sessions Judge, Nagpur, on 2-5-1994.
4. Notices before admission were issued by this Court to the respondents on 4-5-1994 and since the constitutional validity of section 306 of the I.P.C. was involved, notice to the Attorney General of India was also ordered to be given. All the respondents as well as the Attorney General have been served. The submissions on behalf of the respondent No. 4 have been filed and Mr. R.G. Agrawal, A.G.P. has put in appearance on behalf of respondent Nos. 2 to 4. Nobody appeared on behalf of the Union of India and Attorney General of India despite service.
5. Mr. A.V. Gupta, learned Counsel for the petitioners, strenuously urged before us that in (P. Rathinam Nabhusan Patnaik v. Union of India and another)1, 1994(II) Crimes 228, section 309 of the I.P.C. has been declared as unconstitutional and violative of Article 21 of the Constitution of India and void, and if attempt to commit suicide has been effaced from the statute book and is not an offence, it must logically follow that aiding and abetting of suicide can also not be an offence and, therefore, as a consequence of declaration of the provisions of section 309 of the I.P.C. as unconstitutional by the Apex Court, section 306 of the I.P.C. which provides for abetment of suicide as an offence and punishment therefor, also deserves to be struck down and declared as void and unconstitutional. In support of his submissions Mr. Gupta, learned Counsel for the petitioners, has placed reliance on para 16 of the judgment of Division Bench of this Court in (Maruti Shripati Dubal v. State of Maharashtra)1, 1987 Cri. Law Journal 743
6. Before we examine the aforesaid submissions of the learned Counsel for the petitioner, it would be advantageous to refer to the provisions of sections 40, 107, 306 and 309 I.P.C. (which was obtaining before having been struck down, Section 40 reads as under:
"40. Except in the chapters and sections mentioned in Clauses 2 and 3 of this section, the word "offence" denotes a thing made punishable by this Code.
In Chapter IV, V-A and in the following sections, namely, sections 64, 65, 66, 67, 71, 109, 110, 112, 114, 115, 116, 117, 187, 194, 195, 203, 211, 213, 214, 221, 222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 348, 388, 389 and 445, the word "offence" denotes a thing punishable under this Code, or under any special or local law as hereinafter defined.
And in sections 141, 276, 177, 201, 202, 212, 216 and 441, the word "o
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