STATE OF MAHARASHTRAversusSH. MARUTI SHRIPATI DUBAL

A                         STATE OF MAHARASHTRA
                                          v.
                        SH. MARUTI SHRIPATI DUBAL
                                           .. t~

                                 AUGUSf'29, 1996
                                            r.
B                   [G.N. RAY AND G.B. PATTANAIK, JJ.]

          Penal Code, 1860 :

          S. 309-Attempt to commit suicitk:'--/'olice constable met with a road
C accident-Suffered heart injuryo--Became mentally ill-Diagnosed to be suf-
  fering from scizoph-renea--Attempted self immolation-Before the case of
    attempted suicide could be decided by the Court, he challenged the vires of
    S. 309-High Court held that S.309 was .ultra vires Articles 14 and 21 of the
    Constitution-Subsequently a Constitution Bench of Supreme Court ovenuled
    that decisioit-Held, considering the serious ailments which he was suffering
D   from, it would not be desirable to proceed further with the Uial of the criminal
    case initiated against him for the offence of attempt to commit suicide after
    a long lapse of time of abollt 11 years-In order to do complete justice,
    direction issued for quashing the crini'ihal case against him-Constitution of
    India, Art 14, 19, 21 and 142.          i
E
          Lakendra Singh v. State of M.P., [1996) 2 SCC 648, followed and
    sentencing-as-pect explained.

          Mantti Shripati Dubai v. State of Maharashtra, (1987) Crl. CJ. 743,
    held already overruled and set aside.
F
          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    130 of 1987.

         From the Judgment and Order dated 24/25.9.86 of the Bombay High
    Court in W.f'. No. 641 of 1986.
G
          Shivaji M. Jadhav for the Appellant.

          The following Order of the Court was delivered :
                                               •
          This appeal is directed against the judgment dated 25.9.96 passed in
H writ petition No. 641of1986 by the Higit Court of Bombay upholding the
                                          358
                  STATEv.MARUTISHRIPATIDUBAL                             359

challenge made by the respondent Shri Maruti Shripati Dubal about the A
vires of Section 309 of the Indian Penal Code. The respondent Shri Dubal
was a Police Constable attached to the Bombay City Police Force and on
the date of the incident, he had already put in 19 years service as a
Constable. In 1981, he met with an accident and suffered head injuries and
although he recovered from such injury he became mentally ill and con- B
tinned to be so until that day. He attempted to commit suicide by pouring
kerosene on his body and lighting match stick as alleged by the prosecution.
Before the said case of attempted suicide could be decided by the Court,
the respondent challenged the vires of Section 309 of the IPC before the
High Court of Bombay by filing the writ petition and by the impugned
judgment, the High Court found that Section 309 was ultra vires, Articles C
14 and 21 of the Constitution.

      In Criminal Appeal No. 461/96 (Lakendra Singh v. State of Madhya
Pradesh) the Constitution Bench of this Court by judgment dated 21st
March, 1996 since reported in [1996] 2 sec page 648 has upheld the vires D
of Section 309 Indian Penal Code by indicating that the said section does
not violate Articles 14, 19 and 21 of the Constitution of India. The im-
pugned decision of the Bombay High Court was also referred for con-
sideration in Lakendra Singh's case but the decision of the Bombay High
Court in Marnti Sripati's case has been expressly over-ruled. The appeal,
therefore, is to be allowed. The impugned judgment of the Bombay High E
Court is set aside.

      It, however, appears to us that the alleged attempt to commit suicide
had been made by the respondent on 27th April, 1985 and the said case
had not been tried as yet because of the challenge at the threshhold made       p
by the respondent questioning the constitutional validity of Section 309
IPC. As Section 309 IPC is constitutionally valid as held by the Constitution
Bench of this Court, the criminal case initiated on the charge of attempt
to commit suicide therefore requi[.es to be decided on merits.

      The alleged incident for attempt to comm.it suicide had taken place       G
more than 11 years ago. In the impugned judgment, the High Court has
noted that after meeting with road accident causing head injury, the
respondent became mentally dis-balanced and he had undergone
psychiatric treatment since January, 1982. His ailments were diagnosed in
in July 1992 as "Giddiness fright, reduced sleep, nervousness, confusioii       H
    360                    SUPREME COURT REPORTS (1996] SUPP. 5 S.C.R.

A etc." In August, 1982, the doctor diagnosed that the respondent was suf-
    fering from schizophrenea. He was also suffering from auditory and visual
    hallucinations. Electric Shocks treatment was administered to him and
    heavy tranquilizers were given to the respondent and even when the writ
    petition was presented before the Bombay High Court, the respondent was
    under heavy tranquilizers.
B
            It has been indicated in the Constitution Bench decision in Lakendra
    Singh's case that Section 309 IPC does not offend Article 14 because of
  the inbuilt flexibility in Section 309 IPC. It has been indicated that the
  discretion given to the court to award suitable punishment commensurate
C with the gravity of the offence against compulsion of giving dispropor-
  tionately harsh punishment in all cases of offence of attempt to commit
  suicide protects Section 309 IPC from the vice of being unconscionably
  harsh, thereby making it wholly arbitrary and unreasonable. It has been
  indicated by the Constitution Bench that in an appropriate case, even fine
  can be imposed for offence under Section 309 IPC and incidents have been
D cited where Law Courts in India have awarded nominal punishment and
  have been given the benefit of Probation of Offenders' Act to the accused
  convicted for offence in attempting to commit suicide.                               .
          Considering the serious ailments which the respondent was suffering
    from, it appears to us that it will not be desirable to proceed further with
E   the trial of the said criminal case initiated against the accused for the
    alleged offence to commit suicide after such a long lapse of time. In the
    facts of the case, even if he is found guilty after the completion of trial, the
    respondent deserves to be treated very sympathetically in the matter of
    awarding punishment for the said offence alleged against him. In the
F   special facts of the case, we do not think that the respondent deserves to
    be subjected to trial for the aforesaid offence after such a distant time when
    even if the prosecution case is proved beyond reasonable doubt, the
    accused deserves a very lenient sentence of nominal fine. In order to do
    complete justice, in the facts of the case, we direct for quashing the said
G   criminal case against the respondent.

     G.N.                                                       Appeal dismissed.