Kerala High Court
Mary Denil Alias Asha ,W/O. Denil ... vs State Of Kerala on 3 March, 2025
Author: V.G.Arun
Bench: V.G.Arun
Crl.M.C. No.537/2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 3RD DAY OF MARCH 2025 / 12TH PHALGUNA, 1946
CRL.MC NO. 537 OF 2024
CRIME NO.1476/2022 OF Ernakulam Central Police Station,
Ernakulam
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.376 OF 2023
OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, ERNAKULAM
PETITIONER:
MARY DENIL ALIAS ASHA ,
W/O. DENIL FRANCIS EDWARD,
AGED 37 YEARS
ANJALIKODUVELI. PARAMBIL HOUSE, PUSHPAKA ROAD,
VADUTHALA,ERNAKULAM, PIN - 682023
BY ADVS.
K.L.JOSEPH
P.SAREENA GEORGE
JOBY KURIAKOSE T.J
Crl.M.C. No.537/2024
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RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
2 STATION HOUSE OFFICER,
ERNAKULAM CENTRAL POLICE STATION,KOCHI,
ERNAKULAM, PIN - 682018
OTHER PRESENT:
SRI. M.C. ASHI, PP.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
24.02.2025, THE COURT ON 03.03.2025 PASSED THE FOLLOWING:
Crl.M.C. No.537/2024
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V.G.ARUN, J
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Crl.M.C.No.537 of 2024
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Dated this the 3rd day of March, 2025e
ORDER
Petitioner is the accused in C.C.No.376 of 2023 pending
on the files of the Judicial First Class Magistrate Court - II,
Ernakulam.
The case originated from Crime No.1476 of 2022
registered at the Ernakulam Central Police Station for the
offence punishable under Section 309 of IPC. The crime was
registered on the allegation that, at about 10:30 am on
04.11.2022, petitioner, with intent to commit suicide along with
her two children aged 11 and 9, jumped from the terrace of her
house, resulting in injuries to herself and the children.
Petitioner is seeking to get the criminal proceedings against
her quashed, on the ground that she was under severe mental
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stress when the incident occurred and cannot therefore be
prosecuted under Section 309 of IPC.
2. Learned Counsel for the petitioner contended that even
if the allegation of attempt to commit suicide is accepted as
true, petitioner cannot be prosecuted and punished in view of
the presumption of her being under severe stress and
consequential prohibition contained in Section 115(1) of the
Mental Healthcare Act, 2017 ('the Act' for short). It is
submitted that the medical records would show that the
petitioner was harbouring a suspicion that her neighbours were
intent on harming her family. The petitioner had, in fact,
submitted a complaint raising such allegation to the police on
02.11.2022. The fear psychosis had prompted her to jump from
the terrace, unmindful of the consequence. Learned Counsel
submitted that, the Law Commission, in its 42nd Report
submitted way back in 1970-1971 had recommended deletion of
the offence of attempt to commit suicide from the IPC.
Unfortunately, the bill passed in that regard was not passed as
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the Parliament got dissolved. Later, in P.Rathinam v. Union of
India and Another [(1994) 3 SCC 394], even though a two
judge Bench of the Supreme Court struck down Section 309 of
IPC as unconstitutional, in Gian Kaur v. State of Punjab
[(1996) 2 SCC 648], a five judge Bench overruled the decision.
Thereafter, in Common Cause (A registered Society) V.
Union of India and Another, [(2018) 5 SCC 1], the Supreme
Court again recommended decriminalising attempt to commit
suicide. Relying on the decisions in Simi C.N. v. State of
Kerala [ILR 2022 (2) Ker. 798] and Leby Sajeendran v. State
of Kerala [2024 (6) KLT 81], it is contended that, after taking
note of the presumption and prohibition contained in Section
115(1) of the Act, this Court has quashed the proceedings
against similarly placed accused.
3. Learned Public Prosecutor submitted that, in spite of
the suggestion in Common Cause (supra), Section 309
continued in the Penal Code until the Code itself was repealed
by the Bharatiya Nyaya Sanhita, with effect from 01.07.2024. It
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is pointed out that as per Section 226 of BNS, attempt to
commit suicide with intent to compel or restrain the exercise of
lawful power is still a punishable offence. According to the
Public Prosecutor, the question whether the prosecution
succeeded in discharging its burden of proving that the
petitioner was not under severe mental stress when she
attempted to commit suicide is dependant upon the evidence to
be tendered and the prosecution cannot be pre-empted from
discharging its burden by quashing the further proceedings.
4. Before proceeding to decide the question of law
involved, it will be beneficial to sift through the medical records
and the statements of witnesses. In Annexure A3 discharge
summary dated 08.11.2022, the Doctor has observed that the
patient was not willing to undergo the required procedure
when she was admitted after the fall and had to be shifted back
to the room. Only after psychiatry consultation, lower lip
debridement and primary repair under RA could be done. The
discharge summary reveals that the petitioner was advised to
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report for review in psychiatry OPD after 10 days and in the
doctor's progress note dated 18.04.2023, it is observed that the
patient had paranoid ideations earlier and had committed the
act because of her delusions and suspicion that she and her
children were being followed by someone. The later progress
note dated 26.04.2023 also contains an observation that the
petitioner is having psychotic disorder and is still harbouring
persecutory delusions of being followed and being under the
surveillance of somebody. Apart from the above, in their
Section 161 statements, petitioner's parents and husband have
consistently stated that the petitioner was under constant fear
and tension about an ongoing quarrel between her husband and
their neighbours, and used to get worked up for even small
issues. Pertinently, none of the witnesses stated that the
petitioner was in a normal state of mind when she attempted to
commit suicide. In this context, it will be profitable to read the
definition of mental illness in Section 2(s) of the Mental
Healthcare Act, extracted hereunder for easy reference;
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"(s) "mental illness" means a substantial disorder of thinking,
mood, perception, orientation or memory that grossly impairs
judgment, behaviour, capacity to recognise reality or ability to
meet the ordinary demands of life, mental conditions associated
with the abuse of alcohol and drugs, but does not include mental
retardation which is a condition of arrested or incomplete
development of mind of a person, specially characterised by
subnormality of intelligence;"
5. The above expansive definition of mental illness takes
in substantial disorder of thinking, mood and perception that
grossly impairs judgment, behaviour, capacity to recognise
reality etc. The petitioner's medical records also indicate
substantial disorder of thinking that had grossly impaired the
petitioner's judgment and capacity to recognise reality. Being
so, the presumption of severe stress mentioned in Section 115
of the Act will get attracted. Being contextually relevant,
Section 115 is extracted below;
"115. Presumption of severe stress in case of attempt to commit
suicide.-- (1) Notwithstanding anything contained in Section 309 of
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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 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."
6. As far as the the impact of Section 115(1) of the Act on
Section 309 of IPC is concerned, much deliberation is not
required as there are earlier decisions on the issue. In
Common Cause (supra), the Apex Court noted that Section
115(1) of the Mental Healthcare Act removes the element of
culpability attached to an attempt to commit suicide under
Section 309 and considers the person who attempted suicide as
a victim of circumstances and not an offender.
7. In Simi C.N.(supra), referring to the findings in
Common Cause (supra) as also the judgments of the Orissa
and Himachal Pradesh High Courts on the point, the learned
Single Judge held as under;
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"15. S.115 of the Act saves the act of the petitioner from the
penal provision. I am in respectful agreement with the
observations made by the Orissa and Himachal Pradesh
High Courts and therefore, the proceeding, if allowed to
continue, is a clear abuse of the process of Court."
8. In Leby Sajeendran (supra), not only was the legal
position reiterated, but the learned Single Judge went one step
ahead, by holding that the Mental Healthcare Act being a
beneficial piece of legislation, can be given retrospective effect.
The relevant portion of that judgment reads as under;
"However, it has also been held that where a benefit is
conferred by legislation, the rule against the retrospective
construction is different. If a legislation confers benefit on
some persons but without inflicting a corresponding detriment
on some other person or on the public generally, and where
to confer such benefit appears to have been the legislators
object, then the presumption would be that such a legislation,
giving a purposive construction, would warrant it to be given
a retrospective effect. The doctrine of fairness is a relevant
factor to construe a statute conferring a benefit in the context
of it to be given a retrospective operation. Where a law is
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enacted for the benefit of a community as a whole, even in
the absence of a provision, the statute may be held to be
retrospective in nature.
10. There can be no doubt that MHA is a beneficial
legislation and so the benefits contained therein require to be
extended to the entire class of persons for whose benefit it
was enacted. As it is a beneficial piece of legislation, a
retrospective effect can be given to the same."
9. Based on the above reasoning, further proceedings
against the petitioner therein, with respect to an occurrence on
10.05.2016 was quashed by extending the benefit of Section
115(1) of the Mental Healthcare Act that had come into effect
only on 07.07.2018.
10. Another important decision on the point is that of the
Division Bench in Sharanya V. State of Kerala (2025 SCC
OnLine Ker.1201). Therein, the prosecution case is that, on
01.12.2010, at about 10 pm, the accused murdered her son
Sreehari aged 3¾ months, by smothering him with her hands
and thereafter, attempted to commit suicide by inflicting cut
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injuries on her body, with a steel blade. The accused was
therefore charge sheeted for the offences punishable under
Sections 302 and 309 of IPC. The Division Bench, after careful
analysis of the relevant provisions, explicitly held that Section
115 of the Mental Healthcare Act creates an embargo in trying
and punishing a person who had attempted to commit suicide
for the offence under Section 309 IPC or for any other offence
under IPC committed in the course of the same transaction,
unless it is proved that the person accused was not under
severe stress.
11. Thus, Section 115(1) of the Mental Healthcare Act
raises a presumption that the accused had attempted to commit
suicide under severe mental stress and the burden to prove
otherwise is upon the prosecution. In the petitioner's case,
there is sufficient proof to presume that the petitioner was
under severe mental stress when she attempted to commit
suicide. Being so, the prohibition under Section 115(1) of the
Mental Healthcare Act will apply in all fours.
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For the aforementioned reasons, the Crl.M.C is
allowed. Annexure A 1 final report and all further proceedings
in C.C.No.376 of 2023 on the files of the Judicial First Class
Magistrate Court-II, Ernakulam, as against the petitioner, is
quashed.
sd/-
V.G.ARUN, JUDGE
sj
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PETITIONER ANNEXURES
Annexure A 1 CERTIFIED COPY OF THE FINAL REPORT IN
C.C.NO. 376/2023 BEFORE JUDICIAL FIRST
CLASS MAGISTRATE COURT - 11 ERNAKULAM
Annexure A 2 TRUE COPY OF THE COMPLAINT DATED
02.11.2022 SUBMITTED BY THE .PETITIONER
BEFORE THE SHO, ERMAKULAM NORTH POLICE
STATION
Annexure A 3 THE DISCHARGE CERTIFICATE OF THE
PETITIONER DATED 08.11.2022 ISSUED FROM
THE MEDICAL TRUST HOSPITAL
Annexure A4 THE TRUE COPY OF CASH BILL DATED
18.11.2022 ISSUED FROM MEDICAL TRUST
HOSPITAL
Annexure A5 TRUE COPY OF THE DOCTOR PROGRESS NOTE
DATED 18.04.2023 ISSUED FROM ASTER
MEDICITY
Annexure A6 TRUE COPY OF THE DOCTOR PROGRESS NOTE
DATED 26.04.2023 ISSUED FROM ASTER
MENDICITY
Annexure A7 TRUE COPY OF PRESCRIPTION DATED
16.05.2023 ISSUED FROM ASTER MEDICITY
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Annexure A8 TRUE COPY OF THE PRESCRIPTION DATED
14.08.2023 ISSUED FROM ASTER MEDICITY
Annexure A9 TRUE COPY OF THE PRESCRIPTION DATED
16.11.2024 ISSUED FROM ASTER MEDICITY
