Althaf and others v. State of Kerala and Raneesha w/o Althaf

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 29TH DAY OF AUGUST 2019 / 7TH BHADRA, 1941** ## **Crl.MC.No.5711 OF 2019(D)** **AGAINST IN SC 797/2018 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VII, ERNAKULAM** **CRIME NO.1822/2011 OF Palluruthy Police Station , Ernakulam** ## **PETITIONERS:** **1 ALTHAF,AGED 31 YEARS S/O.UMBAYI,ANGERIPARAMBIL HOUSE, V.P.SASI ROAD,PALLURUTHY,NOW RESIDING AT PULIMPARAMBIL,INDIRA GANDHI ROAD,PAMBAYIMOOLA KARA, EDAKOCHI VILLAGE.** - **2 UMBAYI,AGED 57 YEARS,S/O.ABDU,NANGERIPARAMBIL HOUSE,V.P.SASI ROAD,PALLURUTHY.** - **3 ASHRAF @BONEY,AGED 47 YEARS S/O.GEORGE,RESIDING AT THALIKAPARAMB HOUSE,THEVAKKAL KARA,ALUVA VILLAGE.** **BY ADV. SMT.G.MAHESWARY** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR,HIGH COURT OF KERALA.** - **2 RANEESHA.W/O.ALTHAF,NANGERIPARAMBIL HOIUSE,NOW RESIDING AT PULIMPARAMBIL,INDIRA GANDHI ROAD,PAMBAYIMOOLA KARA,EDAKOCHI VILLAGE-2.** **R2 BY ADV. A.MEGHA** ## **OTHER PRESENT:** **SRI.T.R.RENJITH, PUBLIC PROSECUTOR FOR R1, SMT.A.MEGHA FOR R2, SRI.PRASUN.S(AMICUS CURIAE)** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29.08.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.5711/2019 2 ## **(C.R.) ALEXANDER THOMAS, J.** ## **=========================== Crl.M.C No.5711 of 2019 ===========================** Dated this the 29[th] day of August, 2019 ## **ORDER** The main prayer in the aforecaptioned Criminal Miscellaneous Case is as follows:- _“............. to allow this Criminal M.C., quashing Annexure I First Information Report and Annexure II Final Report pending before the 7[th] Addl. District and Sessions Court at Ernakulam as SC. No.797/2018.”_ 2. Heard Sri. G. Maheswary, learned counsel appearing for the petitioners, Sri. T.R. Renjith, learned Public Prosecutor for R1 State, Smt.M.Megha, learned counsel appearing for R2 lady de facto complainant and Sri. S. Prasun, learned Amicus Curiae. 3. The petitioners herein have been arrayed as accused Nos.1 to 3 among the three accused in the impugned Annexure-I Crime No.1822/2011 of Palluruthy Police Station for offences punishable under Sections 498A, 306 & 34 of the IPC on the basis of the First Information Statement lodged in that regard on 1.9.2011 by the lady de facto complainant. The 2[nd] respondent de facto complainant is the wife of the 1[st] petitioner (A1). The 2[nd] petitioner (A2) is the father of the 1[st] petitioner (A1). The 3[rd] petitioner is the Crl.M.C.No.5711/2019 3 brother-in-law of the 1[st] petitioner (A1). The Police, after investigation, has filed the impugned Annexure-II final report/charge sheet and after committal proceedings, the case is now pending as Sessions Case, S.C.No.797/2018 on the file of the Additional Sessions Court-VII, Ernakulam. 4. The brief of the allegation is that after the marriage of the 1[st] petitioner with the 2[nd] respondent lady de facto complainant, the petitioners have consistently treated the 2[nd] respondent with cruelty and harassment and that on 31.8.2011, the petitioners had verbally abused her and demanded her that she should bring more gold ornaments and dowry and out of extreme distress and frustration, she has attempted to commit suicide and was taken to the hospital and that thereby the petitioners have committed the above said offences. 5. Now the parties submit that the incidents occurred only on account of disputes in marital discords and that the parties have now settled the entire issues and that the 2[nd] respondent lady de facto complainant has no further issues in the matter and that she has now sworn to Annexure-III affidavit dated 9.8.2019 stating that she has settled the entire disputes with the petitioners and that she is now leading a happy married life with the 1[st] petitioner and that she does not intend to proceed prosecution any further and that the impugned criminal proceedings may be quashed as otherwise her marital life would be detrimentally affected, etc. Crl.M.C.No.5711/2019 4 6. It is by now well established by a series of rulings of the Apex Court and various High Courts including this Court in the cases as in _**Gian Singh** v._ _**State of Punjab**_ reported in 2013 (1) SCC (Cri) 160 = (2012) 10 SCC 303 and _**Narinder Singh and others v. State of Punjab and anr**_ . reported in [(2014) 6 SCC 466], that, where the disputes have arisen on account of marital discords etc., then the Courts can take a liberal stand in quashing the impugned criminal proceedings, if the parties have arrived at a settlement. 7. In the instant case, one of the major offences alleged against the petitioners is the one as per Section 306 of the IPC and the other is as per Section 498A of the IPC. The latter offence as per Section 498A of the IPC could easily be quashed on the ground of settlement between the parties. Since the prosecution has also alleged that the petitioners have committed the offence as per Section 306 of the IPC, this Court deemed it fit and proper to appoint an Amicus Curiae to assist this Court to consider the said issue as to whether the present case could be quashed on the ground of settlement between the parties. Accordingly, with the consent of all the parties concerned, this Court had appointed Sri. S. Prasun, learned Advocate as Amicus Curiae, who has submitted Amicus Curiae brief in this case. It is beyond any dispute that the Crl.M.C.No.5711/2019 5 prosecution case is to the effect that though the 2[nd] respondent lady de facto complainant had attempted to commit suicide, she had immediately taken to hospital and she had survived and leading a healthy and normal life. Since the victim has not died in the alleged attempt to commit suicide, the offence as per Section 306 of IPC may not lie, for the simple reason that the said offence is for abetment to commit suicide. Therefore, the suicide of the victim concerned should have actually occurred. Section 306 of the IPC reads as follows:- - _“ -_ - _**306. Abetment of suicide.** 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.”_ 8. In the light of the above said aspects, there cannot be any doubt that the petitioners cannot be prosecuted for the offence as per Section 306 of the IPC. However, it is to be noted that, though the prosecution does not have any such case, it may be possible to make out a case of the prosecution that the petitioners have committed at best an offence as per Section 107 of Section 309 of the IPC, that is abeting the 2[nd] respondent to attempt to commit suicide. Section 107 of the IPC reads as follows:- Crl.M.C.No.5711/2019 6 - “ _**107. Abetment of a thing.-** A person abets the doing of a thing, who- First- Instimages 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 of illegal omission, 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.”_ Section 309 of the IPC reads as follows:- “ **309** . **Attempt to commit suicide** . _- 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.”_ 9. For making out such a case, the victim also, then should be alleged to have committed the offence as per Section 306 of the IPC. In the instant case, the prosecution does not have any case that the 2[nd] respondent lady de facto complainant should be prosecuted for the offence as per Section 309 of the IPC. In this regard, it is also pertinent to note that as per the three Judges' Bench decision rendered by the Crl.M.C.No.5711/2019 7 Apex Court in the case in **P. Rathinam** v. **Union of India & another** [(1994(3) SCC 394) =AIR 1994 SC 1844)], it was held that for prosecuting a victim, who has attempted to commit suicide for the offence as per Section 309 of the IPC is irrational and cruel and hence void. Later Constitution Bench (Five Judges' Bench) of the Supreme Court in the celebrated case in **Gian Kaur** v. **State of Punjab** [1996 (2) SCC 648] has held that right to die is not included in the right to life guaranteed under Article 21 of the Constitution of India and that it cannot be held that Section 309 of the IPC is violative of Article 14 or Article 21 of the Constitution of India and hence, overruled the above said dictum laid down earlier by the three Judges' Bench decision of the Apex Court in **P.Rathinam's case** (supra). However, it is also interesting to note that later the Parliament has repealed the Mental Health Act, 1987 and has framed the Mental Health Care Act, 2017, which has come into force on 29.5.2018. Section 115 of the Mental Health Care Act, 2017 provides as follows:- _“_ _**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_ Crl.M.C.No.5711/2019 8 _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._ _This clause seeks to provide for presumption of mental illness in case of attempt to commit suicide by a person.”_ Therefore, the Parliament has now consciously intervened in the matter and has now mandated as per sub section (1) of Section 115 of the Mental Health Care Act, 2017 that notwithstanding anything contained in the 309 of the IPC, any person, who attempted to commit suicide, shall be presumed, unless proved otherwise, to have stress, shall not be punished under the Indian Penal Code. Further, sub section (2) of Section 115 of the Act also cast a statutory obligation on the appropriate Government concerned to provide care, treatment and rehabilitation to a person having serious stress and who attempted to commit suicide to reduce the risk of recurrence of attempt to commit suicide. Therefore, in view of the above said provisions contained in Section 115 (1) of the Mental Health Care Act, 2017 and in view of the fact that even the prosecution does not have a case that the 2[nd] respondent should be Crl.M.C.No.5711/2019 9 prosecuted for the offence as per Section 309 of the IPC, it may not be legally feasible for any such prosecution as against the 2[nd] respondent. Now it appears that the parties have settled their entire disputes. The learned Public Prosecutor was requested to get instructions in the matter and the learned Public Prosecutor has submitted that the Investigating Officer has conducted enquiry in the matter and has ascertained from the 2[nd] respondent that she is now leading a happy married life with the 1[st] petitioner and that she is not interested to prosecute the proceedings against the petitioners, one of which is the main accused, who is none other than her own husband with whom she is living happily and the 2[nd] accused is the father-in-law and the 3[rd] accused is the brother-in-law etc. It may not be worthwhile even prosecuting the petitioners for the offence as per Section 107 of Section 309 of the IPC. The prosecution agency also does not appear to have any serious objection for allowing the prayer for quashment of the criminal proceedings, taking note of the facts and circumstances in this case. 10. The learned Amicus Curiae has also submitted that this is a fit case where this Court may exercise its discretion to quash the impugned criminal proceedings on the ground of settlement between the parties Crl.M.C.No.5711/2019 10 as essentially the incidents have happened on account of serious marital discords between the 1[st] petitioner and the 2[nd] respondent lady de facto complainant. In view of these aspects, this Court is also of the considered view that if the prosecution is allowed to continue, it will only give rise to more problems and unhappiness to the 2[nd] respondent in her marital life. In the light of these aspects, this Court is of the considered view that the extraordinary inherent powers conferred on this Court under Section 482 of Cr.P.C. could be befittingly invoked in the facts and circumstances of the case, so as to quash the impugned criminal proceedings and it is accordingly, so declared and ordered. In that view of the matter it is ordered that the impugned Annexure-II final report/charge sheet filed in the impugned Annexure -I Crime No.1822/2011 of Palluruthy Police Station, which has led to the pendency of Sessions Case, S.C.No.797/2008 on the file of the Additional Sessions Court-VII, Ernakulam against the accused persons and all further proceedings emanating therefrom pending as against the accused person will stand quashed. 11. The Registry will ensure that copy of this order is forwarded to the Additional Sessions Court-VII, Ernakulam, who is dealing with Sessions Case, S.C.No,.797/2018. The office of the Advocate General Crl.M.C.No.5711/2019 11 will also ensure that certified copy of this order is furnished to the Investigating officer concerned in relation to this case for necessary information. 12. Before parting with this case, this Court would place on record its appreciation for the diligent and sincere approach taken by Sri. S. Prasun, learned Amicus Curiae, who exhaustively studied various dimensions of this case and in having submitted a detailed Amicus Curiae brief so as to assist this Court in the resolution of the issues posed in this case. With these observations and directions, the above Crl.M.C stands finally disposed of. Sd/- ## **ALEXANDER THOMAS, JUDGE.** acd Crl.M.C.No.5711/2019 12 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE I THE CERTIFIED COPY OF THE FIR DATED 1.9.2011.** **ANNEXURE II THE CERTIFIED COPY OF THE FINAL REPORT BEFORE THE 7TH ADDL.DISTRICT AND SESSIONS COURT AT ERNAKULAM AS SC.797/2018.** **ANNEXURE III** **THE ORIGINAL COPY OF THE AFFIDAVIT DATED 09.08.2019 SWORN BY THE 2ND RESPONDENT.**