The Mental Health Act, 2017 can operate retrospectively to protect individuals under severe stress from prosecution under Section 309 IPC.

J U D G M E N T

This writ petition under Article 226 of the Constitution of India raises an interesting question as to whether the provisions of the Mental Health Act , 2017 (the MHA ), can have retrospective operation. The petitioner seeks issuance of a writ of certiorari or other appropriate direction or order quashing Ext.P3 final report in C.C.No.2585/2016 on the file of the Judicial First-Class Magistrate Court-VIII, Ernakulam.

2. The petitioner is the accused in C.C. No.2585/2016, in which she is alleged to have committed the offence punishable under Section 309 IPC . Her husband, a sitting MLA, was contesting in the election. While so, one of his opponents created and circulated an audio clipping which contained the petitioner's edited conversations. Her conversations at various times were edited and made into an audio clipping which highly damaged the election prospects of her husband and was highly defamatory to the petitioner. Due to this, she was under severe stress and hence had consumed an overdose of sleeping bills.

3. The learned counsel for the petitioner relying on Section 115 of the MHA submitted that proceeding with the criminal case would be a clear abuse of the process of law and hence the final report is liable to be quashed. In support of the argument, reference was made to the dictums inNaveed Raza v. State of Kerala, (Crl.M.C.No.8305 of 2019); Pratibha Das v. State of Orissa , 2019 ICO 2445; Simi C.N. v. State of Kerala , 2022(3) KHC 346 ; Maruti Shripati Dubal v. State of Maharashtra , MANU/MH/0022/1986 ; State v. Sanjay Kumar Bhatia , 1985 Crl.L.J.931 ; P.Rathinam/Nagbhusan Patnaik v. Union of India , AIR 1994 SC 1844; Smt.Gian Kaur v. State of Punjab , AIR 1996 SC 946 and State through Central Bureau of Investigation v. Gian Singh , AIR 1999 SC 3450.

4. Per contra it was submitted by the learned Public Prosecutor that the MHA came into being with effect from 07/07/2018. The incident alleged in this case took place on 10/05/2016, apparently before the came into being and therefore the petitioner cannot avail the benefit of Section 115 . In support of this argument reference was made to the dictum in Gian Kaur v. State of Punjab, 1996 KHC 505 : 1996 (2) SCC 648 in which case the Apex Court held that right to die is not included in the right to life under Article 21 and therefore Section 309 IPC is not violative either of Article 14 or Article 21 of the Constitution of India . The prosecutor, therefore argued that as long as remains in the statute book, persons who attempt to commit suicide would be liable to be prosecuted under .

5. Heard both sides.

6. Before I go into the merits of the case, I take note of the fact that the petitioner has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India . The ideal course would have been to resort to Section 482 Cr.P.C. for quashing the final report. The jurisdiction of the High Court under is couched in wide terms and exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Article. But the exercise of this jurisdiction is discretionary; it is not exercised merely because it is lawful to do so. (Thansingh Nathmal v. A.Mazid, Superintendent of Taxes, AIR 1964 SC 1419). It is settled position that the High Court do not ordinarily entertain a writ petition under if an effective alternative remedy is available to the aggrieved person or if a statute itself provides for a mechanism for redressal of the grievance. It is also well settled that alternative remedy does not act as an absolute bar for entertaining a writ petition where the vires of any statutory provision is under challenge, or the order impugned is completely without jurisdiction or has been passed in clear violation of the principles of natural justice. The principle that the High Court should not exercise its extraordinary writ jurisdiction when an efficacious alternate remed