Topic: Naresh Marotrao Sakhre v. Union of India - Euthanasia

Naresh Marotrao Sakhre v. Union of India
Equivalent citations: 1996 (1) BomCR 92, 1995 CriLJ 96, 1994 (2) MhLj 1850 - Bench: M Ghodeswar, R Lodha – Date judgement: 17 August, 1994t

JUDGMENT R.M. Lodha, J.
1. Rule. Heard forthwith.

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 of mandamus or any other appropriate writ., order or direction for declaration of Section 306 of the Indian Penal Code (for short "the IPC.") as unconsitututional 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 IPC the only point urged by the learned counsel for the petitioners, 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 IPC 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 IPC was also registered in addition to Section 306, of the IPC 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 Session 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 IPC 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, AGP has put in appearance on behalf of respondents 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/Nagbhusan Patnaik v. Union of India (1994) 2 Crimes 228 : (1994 Cri. LJ 1605) Section 309, of the IPC 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 provision of Section 309, of the IPC as unconstitutional by the Apex Court, Section 306, of the IPC 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 1987 Cri. LJ 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, IPC (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" denote a thing made punishable by this Code.

In Chapter IV, VA 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 "offence" has the same meaning when the thing punishable under the special or local law is punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine."

Section 107 which defines abetment of a thing reads as under :

"107. A person abets the doing of a thing, who -

First. - Instigates any person to do that thing; or Secondly. - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly. - Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1. - A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Explanation 2. - Whoever, either prior to or at the time of commission of an act does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof is said to aid the doing of that act."

Section 306, which makes abetment of suicide an offence and provides for punishment therefor reads as under :

"306. If any person commits suicide, whoever abets the commission of such suicide shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

Section 309, which has been declared unconstitutional prior to its declaration reads as under :

"309. Whoever attempts to commit suicide and does any act towards the commission of such offence shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.

7. A comparison of the aforesaid 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 persons who aid or abet the commission of suicide. Commissioner 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 one's 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 (1994 Cri LJ 1605) (SC) (cited supra). In the words of the Apex Court : (at p. 1630 of Cri LJ) "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 State's interference with the personal liberty of the concerned persons is not called for."

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"

8. 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 one's 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 abetment 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 enntirely on different footing and section 306 which makes abetment 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. Mr. Gupta, learned counsel for the petitioners, has not correctly pressed into service para 16 of the judgment in Maruti Shripati Dubal's case (1987 Cri LJ 743) (Bombay) (cited supra) which reads as under : (at pp. 752-53 of Cri LJ) "16. That still leaves unanswered an important question. If attempt to commit suicide is not considered an offence, it must logically follow that aiding and abetting the attempt must also not be an offence. This will open door for euthanasia or mercy killinng in particular and death-baiters in general.

According to use this fear arises firstly out of a misconception of the concepts of 'suicide' and 'mercy-killing'. Suicide by its very nature is an act of self-killing or self destruction, an act of terminating one's own act and without the aid or assistance of any other human agency. Euthanasia or mercy-killing on the other hand means and implies the intervention of other human agency to end the life. Mercy-killing thus is not suicide and an attempt at mercy-killing is not covered by the provisions of section 309. The two concepts are both factually and legally distinct. Euthanasia or mercy killing is nothing but homicide whatever the circumstances in which it is effected. Unless it is specifically excepted it cannot but be an offence. Our Penal Code further punishes not only abetment of homicide but also abetment of suicide. Section 306 makes abetment of suicide of any person whereas section 305 makes abetment of suicide of child or insane person an offence and prescribes different punishment for the two. These provsions can certainly take care of situations or threats posed by death-baiters. If however any further safeguards were needed they can be had by enacting such provisions as in section 2 of the English Suicide Act of 1961 which makes criminally liable a person who aids, abets, counsels or procures the suicide of another or an attempt by another to commit suicide.

As we will point out a little later, the question has hardly any practical significance. Suicide is nowhere defined in the Penal Code. Hence an attempt to commit suicide and an abetment of such attempt is bound to pose problems of definition in practice. The problem is therefore more imaginery than real."

9. It is not that the Division Bench of this Court in Maruti Shripati Dubal's case (1987 Cri LJ 743) (cited Supra) has held that if an attempt to commit suicide is not considered as an offence, it must logically follow that aiding and abetting the attempt must also not be an offence. Rather after putting this question, the Division Bench observed that if aiding and abetting the attempt to commit suicide is not made and offence, it will open door for euthanasia or mercy killing in particular and death-baiters in general. This Court has observed that the Indian Penal Code punishes not only abetment of homicide, but also abetment of suicide. Section 306 makes abetment of suicide of any person, whereas section 305 makes abetment of suicide of child or insane person, an offence and prescribes different punishment for the two. Section 306 as a matter of fact, according to the Division Bench, takes care of situations and threats posed by death baiters. It will not be out of place to observe here that under the English Suicide Act of 1961, though an attempt to commit suicide is not a criminal offence, but section 2 of the said Act also makes criminally liable a person who aids, abets, counsels or procures the suicide of another or an attempt by another to commit suicide. The English law, therefore, also recognises difference and distinction between an attempt to commit suicide which is not a criminal offence, and abetment of suicide which is an offence. The historical perspective of section 306 of the I.P.C. also reveals that the said section was enacted to curb the social evils whereby persons aided, abetted or instigated in committing Sati and offences of such like nature. Suicides by women have increased recently due to mental torture, deficient dowry and other things. Of course looking to the high rise of such type of offences, sections 304B and 498A have been enacted in the I.P.C. so also Section 113A in the Indian Evidence Act. Section 306 of the I.P.C. takes care of the abetment of suicide, inasmuch as if any person commits suicide, whoever abets commission of such suicide shall be punished. The offence of abetment is by itself an offence and, therefore, the offence of abetment of suicide, if made an offence under section 306 of the I.P.C., is fully justified. The offence of abetment is complete when the alleged abetor has instigated another to commit suicide.

10. 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 effaced 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, irretrivable 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, incitment, 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 one's life volunntarily without the aid or abetment 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 'abetment' 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.

11. Challenge to constitutional validity of Section 306 of the I.P.C. by the learned counsel is based on fallacious and erroneous assumption that main section punishing attempt to suicide is Section 309 of the I.P.C. and abetment of suicide under Section 306 of the I.P.C. is only secondary, and when Section 309 of the I.P.C. has been declared unconstitutional, as a necessary corollary Section 306 of the I.P.C. is also rendered unconstitutional. The correct position, in our view, is that Section 306 of the I.P.C. is entirely independent provision and relates to distinct offence and is not at all dependant on the provisions of Section 309 of the I.P.C. which has been declared ultra vires the Constitution of India. Section 306 of the I.P.C. punishes 'the person' who has abetted the commission of suicide and neither one who has committed suicided, nor the person who has attempted to commit suicide. The person, who has committed suicide or has attempted to commit suicide, does not fall in the, category of 'Principal Offender' because commission of suicide or attempt to suicide is not an offense and, therefore, the analogy that when 'Principal Offender' cannot be convicted, the 'abettor' also cannot be said to have committed any offence is inapt and not applicable. In this view of the matter, we hold that the offence under section 306 of the I.P.C. which makes abetment of suicide as offence, is constitutional and does not suffer from any vice and it is not violative of Articles 14 and 21 of the Constitution of India.

12. No other point was argued.

13. Consequently the aforesaid Criminal Writ Petition has no merit and is dismissed with no order as to costs. Rule is discharged.

14. Petition dismissed.