IMPORTANT POINT
The Mental Healthcare Act, 2017, creates a presumption of severe stress for suicide attempts, exempting individuals from prosecution under IPC Section 309.

ORDER :

Bechu Kurian Thomas, J.

Petitioner banged his head inside the lockup after he was arrested for an offence. The aforesaid conduct has resulted, in another prosecution alleging an attempt to commit suicide. Two questions have been raised for resolution (i) whether banging the head on a wall could be regarded as an attempt to commit suicide, and (ii) whether the offence under Section 309 IPC will be attracted from the nature of allegations in the final report, after the coming into force of the Mental Healthcare Act, 2017.

2. Petitioner was arrested on 04.04.2019 in connection with Crime No.464/2019 of Kattakkada Police Station. While he was lodged in the police lockup, it was observed that petitioner repeatedly banged his head on the walls on account of mental distress in an attempt to commit suicide. The said conduct resulted in another FIR being registered as Crime No.466/2019 of Kattakada Police Station under Section 309 IPC. After completing the investigation, the final report was filed which was taken cognizance as C.C.No.623/2019 on the files of Judicial First Class Magistrate's Court, Kattakada. The aforesaid proceedings are sought to be quashed in this petition under section 482 Cr.P.C

3. Sri. B.H.Mansoor, the learned Counsel appearing for the petitioner contended that the uncontroverted allegations in the final report do not make out the offence under Section 309 IPC in view of Section 115 of the Mental Healthcare Act, 2017 (for short 'MH Act') and further that mere banging of head on the wal l cannot amount to an attempt to commit suicide.

4. Sri. Noushad K.A., the learned Public Prosecutor, on the other hand, contended that the restriction against prosecution under Section 115 of the MH Act is a rebuttable presumption and it is always open to the prosecution to rebut the same. It was also submitted that whether banging of head would amount to an attempt to commit suicide depends upon the circumstances in which such an act was done and therefore this Court cannot decide the said issue in this proceeding.

5. Decriminalizing attempts to commit suicide has been under consideration for the last several decades. Though section 309 IPC remained in the statute book, with the enactment of the MH Act in 2017, attempts to commit suicide became, to a large extent, no longer an offence. In fact, the new penal legislation in India - The Bharatiya Nyaya Sanhita, 2023, has not included attempts to commit suicide as an offence, except when the attempt is to compel or restrain the exercise of lawful power (see section 226 of BNS).

6. Since penal provisions are applicable on the basis of the law in force as on the date of commission of the offence, the new legislation - BNS has no application in the instant case. However, section 115 of the MH Act having been enacted in 2017 has applicability. Section 115 of the MH Act reads as below:

‘S.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.’

7. After the coming into force of the MH Act, a statutory presumption is created that a person who commits suicide is under severe stress. Due to the stress which he is presumed to have undergone, he cannot be prosecuted under the Indian Penal Code. Thus from 2017 onwards, law presumes that a person who attempts to commit suicide is undergoing stress. The said statutory presumption has created a legal inference that the element of stress exists in a person attempting to commit suicide. When a statutory presumption is created, the burden shifts to the oppos