Criminal Writ Petn. No. 76 of 1994. Case: Naresh Marotrao Sakhre Vs Union of India. High Court of Bombay (India)
| Case Number | Criminal Writ Petn. No. 76 of 1994 |
| Counsel | For Petitioner: A. V. Gupta, Advs. and For Respondents: R. G. Agrawal, A. G. P. for Nos. 2 to 4, Advs. |
| Judges | M. B. Ghodeswar , J. and R. M. Lodha, J. |
| Issue | Indian Penal Code (45 of 1860) - Section 306; Constitution of India - Articles 14, 21 |
| Citation | 1995 CriLJ 96 |
| Judgement Date | August 17, 1994 |
| Court | High Court of Bombay (India) |
Judgment:
R. M. Lodha, J.
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Rule. Heard forthwith.
Attempt to suicide, an offence provided under Section 309, of the Indian Pena1 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 unconstitutional 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.
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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.
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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.
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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 but 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.
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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.
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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...
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