IMPORTANT POINT
The Mental Healthcare Act presumes severe stress in suicide attempts, barring prosecution under IPC unless proven otherwise.

ORDER :

(V.G. ARUN, J.)

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

The case originated from Crime No.1476 of 2022 registered at the Ernakulam Central Police Station for the offence punishable under Section 309 of IPC. The crime was registered on the allegation that, at about 10:30 am on 04.11.2022, petitioner, with intent to commit suicide along with her two children aged 11 and 9, jumped from the terrace of her house, resulting in injuries to herself and the children. Petitioner is seeking to get the criminal proceedings against her quashed, on the ground that she was under severe mental stress when the incident occurred and cannot therefore be prosecuted under Section 309 of IPC.

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 Section 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 02.11.2022. The fear psychosis had prompted her to jump from the terrace, unmindful of the consequence. Learned Counsel submitted that, the Law Commission, in its 42^nd 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 Section 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 Section 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), Section 309 continued in the Penal Code until the Code itself was repealed by the Bharatiya Nyaya Sanhita, with effect from 01.07.2024. It is pointed out that as per Section 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.

4. Before proceeding to decide the question of law involved, it will be beneficial to sift through the medical records and the statements of witnesses. In Annexure A3 discharge summary dated 08.11.2022, the Doctor has observed that the patient was not willing to undergo the required procedure when she was admitted after the fall and had to be shifted back to the room. Only after psychiatry consultation, lower lip debridement and primary repair under RA could be done. The discharge summary reveals that the petitioner was advised to report for review in psychiatry OPD after 10 days and in the doctor's progress note dated 18.04.2023, it is observed that the patient had paranoid ideations earlier and ha