Recent Views of the Supreme Court on Abetment of Suicide – Section 306 IPC

CRIMINAL APPEAL NO. 1301 of 2002 Gangula Mohan Reddy Vs State of Andhra Pradesh

( Justice Dalveer Bhandari , Judge Supreme Court of India and Justice AK Patnaik Judge Supreme Court of India)

6.   Learned counsel for the appellant submitted that the conviction of the appellant is totally unsustainable because no ingredients of offence under section 306 of the Code can be made out in the facts and circumstances of this case. It would be profitable to set out section 306 of the Code:

“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 extent to ten years, and shall also be liable to fine.”

7.   The word suicide in itself is nowhere defined in the Indian Penal Code, however its meaning and import is well known and requires no explanation. `Sui’ means `self’ and `cide’ means `killing’, thus implying an act of self-killing. In short a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself.

8.  Suicide by itself is not an offence under either English or Indian criminal law, though at one time it was a felony in England.

10. In our country, while suicide in itself is not an offence, considering that the successful offender is beyond the reach of law, attempt to suicide is an offence under section 309 of IPC.

11.   `Abetment’ has been defined under section 107 of the Code. We deem it appropriate to reproduce section 107, which reads as under:

“107. Abetment of a thing – 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 places in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly –   Intentionally aides, by any act or illegal omission, the doing of that thing.”

12.   Explanation 2 which has been inserted along with section 107 reads as under:

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

13.   Learned counsel for the appellant has placed reliance on a judgment of this Court in Mahendra Singh & Another v. State of M.P. 1995 Supp. (3) SCC 731. In the case of Mahendra Singh, the allegations levelled are as under:-

“My mother-in-law and husband and sister-in-law  (husband’s elder brother’s wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning.”

14.    The court on aforementioned allegations came to a definite conclusion that by no stretch the ingredients of abetment are attracted on the statement of the deceased. According to the appellant, the conviction of the appellant under section 306 IPC merely on the basis of aforementioned allegation of harassment of the deceased is unsustainable in law.

15.    Learned   counsel   also   placed    reliance   on   another judgment of this court in Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618. A three-Judge bench of this court had an occasion to deal with a case of a similar nature.    In a dispute between the husband and wife, the appellant husband uttered “you are free to do whatever you wish and go wherever you like”.Thereafter, the wife of the appellant Ramesh Kumar committed suicide. The Court paragraph 20 has examined different shades of the meaning of “instigation’. Para 20 reads as under:

“20. Instigation is to goad, urge forward, provoke, incite or encourage to do “an act”. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect. Or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. the present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.”

16.   In State of West Bengal v. Orilal Jaiswal & Another. (1994) 1 SCC 73, this Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trail for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.

17.   The Court in the instant case came to the conclusion that there is no evidence and material available on record wherefrom an inference of the accused-appellant having abetted commission of suicide by Seema may necessarily be drawn.

18.   In the instant case, the deceased was undoubtedly hyper sensitive to ordinary petulance, discord and differences which happen in our day-to-day life. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation.

19.   This court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) 2009 (11) SCALE 24 had an occasion to deal with this aspect of abetment. The court dealt with the dictionary meaning of the word “instigation” and “goading”. The court opined that there should be intention to provoke incite or encourage the doing of an act by the latter.       Each person’s suicidability pattern is different from the others. Each person has his own idea of self esteem and self respect. Therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.

20.   Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.

21.   The intention of the Legislature and the ratio of the cases decided by this court is clear that in order to convict a person under section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide.

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The personal is the personal

USHA RAMANATHAN IN THE INDIAN EXPRESS

The air is thick with schemes that will enable the state, and its agencies, to identify every resident, and to track what they are doing. A home ministry project for creating a National Population Register which will be prepared along with the 2011 Census has been propelled through its pilot stage. Now, an ambitious programme has been launched to load all the residents of the country on to a data base, providing each of us with a unique identity number. What distinguishes this exercise from any other undertaken so far?

First of all, the intention is provide a Unique Identity Number to the whole population, including the just born. The state is to have data on each individual literally from birth to death; and beyond, for a person’s UID is not destroyed at death, merely disabled. The numbers are to be so generated that it will not have to be repeated for between a hundred and two hundred years.

The UIDAI, in its working paper, says that enrolment will not be mandatory, but acknowledges that in practice it is expected not to be voluntary. The ‘Registrars’, who will enroll people on to the data base, will be both private operators and government agencies, and they will be encouraged to insist that they will entertain only those who are willing to enroll. Over a short time, only those with UID numbers may find themselves able to access services. That is the effort.

The UID has nothing to do with citizenship. The information on the UID database is expected to be basic, and to cover all residents: name, date of birth, place of birth, gender, the name and UID numbers of both parents, address, date of death and photograph and fingerprints. This is because the UID is only to identify the individual to the agency that is looking for authentication.

Just on its own, it could even seem benign.

There are two phenomena that take the innocence out of the exercise. The first is ‘convergence’. ‘Convergence’ is about combining information. There are presently various pieces of information available separately, and held in discrete ‘silos’. We give information to a range of agencies; as much as is necessary for them to do their job. The passport agencies do not need to know how many bank accounts you have, or whether you drive a car. The telephone company need not know how you have insured your house. The police do not need to know how often you travel, not unless you are a suspect anyway. It is this that makes some privacy possible in a world where there are so many reasons why, and locations where, we give information about ourselves. The ease with which technology has whittled down the notion of the private has to be contained, not expanded. The UID, in contrast, will act as a bridge between these silos of information, and it will take the control away from the individual about what information we want to share, and with whom.

This is poised to completely change norms of privacy, confidentiality and security of personal information. There are already indications about how convergence will work. Consider the reports that the Apollo Hospitals group has offered to manage health records through the UIDAI. It has already invested in a company called Health Highway that reportedly connects doctors, hospitals and pharmacies who would be able to communicate with each other and access health records. In August 2009, Business Standard reported that Apollo Hospitals had written to the UIDAI and to the Knowledge Commission to link the UID number with health profiles of those provided the ID number, and offered to manage the health records. The terms ‘security’ and ‘privacy’ seem to be under threat, where technological possibility is dislocating many traditional concerns.

The second phenomenon is ‘tracking’. Once the UID is in place, and convergence becomes commonplace, the movement of people, their monies, their activities can be brought together, especially since transactions from buying rice in a PDS shop to receiving wages to bank withdrawals to travel could begin to require the number. There is a difference between people tracking a state, and the state, and the ‘market’ tracking people. The UID is clearly not what it is presented as being: it is not benign, nor a mere number which will give an identity to those who the state had missed so far.

Interestingly, the working paper of the UIDAI starts with a claim that the UID will bring down barriers that prevents the poor from accessing services and subsidies by providing an identity, but soon goes on to clarify that the “UID number will only guarantee identity, not rights, benefits or entitlements”. Given that it is the powerlessness of the poor, inefficiency, the perception of the poor as not deserving of support, sympathy or rights, and the status of illegality foisted on them that stops them from getting what is due to them, and given that corruption and leakages in the system mutate and persist, this quick stepping back is wise indeed.

In the excitement about technology being deployed to do something that has not been done anywhere in the world, the importance of privacy and protection from misuse of personal information is getting eclipsed.

It is significant that the UIDAI working paper makes no mention of national security concerns, and the surveillance, and profiling, possibilities it will create. Yet, the UID is not a project in isolation. The NATGRID, which the UID will facilitate, places the whole population under surveillance; and the home minister is talking about a DNA bank.

Fallibility, the difficulties inherent in reaching those in extreme poverty, the choiceless existence on a database and the possibility of undesirable others getting hold of information only add to the scariness of the scenario that we seem to have accepted without discussion, challenge or debate. And, once accomplished, we would have reached a point of no return.

The writer is an independent law researcher.

http://www.indianexpress.com/news/the-personal-is-the-personal/563920/0

A woman’s word

INDIAN EXPRESS EDITORIAL

The Supreme Court observed if an Indian woman or girl alleges sexual assault, courts need not look for corroborating evidence if her version of events “inspires confidence”. While this sounds suspiciously like a patriarchal invocation of “ek Hindustani ladki ki izzat”, it is merely an articulation of what has been in practice from the ’80s onwards, after women’s groups agitated against the horror of custodial rape, for instance. The sole testimony of the prosecutrix has been accepted as sufficient for conviction in most cases of sexual violence, and rightly so, in a system so cruelly stacked against women.

Perhaps the court was trying to point to the fact that many Indian women have more social pressure at stake when reporting sexual crimes, and often risk great public shaming to seek justice. Sexual assault takes place in closed, secret spaces and witness corroboration is practically difficult. What is more, with the peculiar social burden of sexual crime and the tardiness of legal processes, it is possible for medical and forensic proof of crime to be much diluted or unavailable. There is certainly a sense that it costs Indian women more to level accusations of sexual violence, given how they direct hostile attention back to their own person. As an attempt to switch the legal default in their favour, the court’s approach carries consistency. It has indeed shifted the discourse from low attacks on a woman’s personal life or “character” or a wrangle over tangible physical injury, which resulted in our appalling conviction rates.

But on the other hand, it is unfortunate that the Supreme Court falls back on an all too familiar vocabulary of victimhood, shame and chastity to discuss sexual violence. Instead of reinforcing closed and trapping cultural beliefs — “for an unmarried girl, it will be difficult to find a suitable groom. It would indeed be difficult for her to survive in Indian society.” It would surely be more productive to tilt the field and talk of women as rights-bearing individuals, not hapless vessels for male aggression.

http://www.indianexpress.com/news/a-womans-word/563767/0

Free hand for arbitrators

MJ Antony / New Delhi January 06, 2010, 0:37 IST in The Business Standard

Courts cannot review the evidence and documents already examined by arbitrators.

Though arbitration is considered to be a speedy and economical route to justice, it has often been proved to be as tedious and costly as regular civil litigation. Appeals under the old Arbitration Act of 1940 are still pending in the Supreme Court despite the fact that a comparatively new law is in place since 1996. Last month, the court decided a dispute which started 16 years ago. The irony is that the award was passed in 1996, and since then it was pending in the Uttarakhand High Court and the Supreme Court.

The more paradoxical aspect of the case (M/s Ravindra Gupta & Co vs Union of India) is that the two courts took so long to determine a legal point which is now taken for granted. Should the courts interfere in the award of an arbitrator? In a long series of judgments, the Supreme Court has strictly limited the role of the courts in arbitration matters and given wide elbow room to the arbitrators. Nevertheless, cases are plenty in which the high courts or subordinate courts have re-examined the facts of the dispute and substituted their decision in place of the arbitrator’s. This was one such case.

The Supreme Court has stated in categorical terms that the arbitrator has the final word in a dispute referred to him. Neither party can challenge his award on the ground that he had come to a wrong conclusion. The logic is that if the parties have selected their own forum, it should be conceded the power of appraisement of evidence. Whether a particular amount should be paid is a decision within the competency of the arbitrator. In the State of Rajasthan vs Puri Construction Co (1994) case, the court had categorically stated that “the arbitrator is the sole judge of the quality as well as the quantity of evidence and it will not be for the court to take upon itself the task of being a judge on the evidence before the arbitrator”.

As early as in 1987, the court had explained in the Municipal Corporation of Delhi vs Jagan Nath case that “it may be possible that on the same evidence the court may arrive at a different conclusion than the one arrived at by the arbitrator, but that by itself is no ground for setting aside the award”. The court cannot investigate into the merits of the case or examine the documentary and oral evidence in the record for the purposes of finding out whether the arbitrator has committed an error of law.

The court cannot even examine whether the view taken by the arbitrator is “reasonable”, an amorphous term which has been discussed by judges for centuries. This is because, as the above judgment conceded, “reason varies in its conclusions according to the idiosyncrasies of the individual and the time and circumstances in which he thinks. An arbitrator acting as a judge has to exercise discretion informed by tradition, methodised by analogy, disciplined by system and subordinated to the primordial necessity or order in social life.”

Some awards explain the reasons for arriving at the decision. According to the Supreme Court, whether the award carries reasons or not, the court should not interfere. In the Arosan Enterprises Ltd vs Union of India (1999) case, the court granted some exceptions to the rule. If the award is “totally perverse” or if it is based on a wrong proposition of law, the court can intervene. “In the event of, however, if two views are possible on a question of law as well, the court would not be justified in interfering with the award,” the judgment pointed out.

In a recent case, ONGC vs SAW Pipes Ltd, the court again emphasised that if the arbitral tribunal had committed a mere error of fact or law, the court would still have no jurisdiction to interfere in the award. If the reference to the arbitrator is in general terms, and the award is based on an erroneous legal proposition, the court can interfere in it. If a specific question of law is submitted for arbitration, an erroneous decision in point of law does not make the award bad unless the court is satisfied that the arbitrator had proceeded illegally.

The new Arbitration and Conciliation Act was passed as civil litigation was found to be wasteful and time-consuming. However, cases under the refurbished law are also taking too long to settle as seen in the chronology of recent judgments. Arbitrators, like enquiry commissions, have a stake in prolonging the dispute. The legal profession ably assists them in the endeavour. Reviving old questions in new garbs is one such tricks of the trade. It only adds to the mass of case law.

http://www.business-standard.com/india/news/mj-antony-free-hand-for-arbitrators/381732/

Line-up for justice

There are two queues before the courts and the ‘other’ one moves faster

M J Antony / New Delhi December 23, 2009, 0:47 IST in The Business Standard

The lengthy arguments in the most contested corporate family battle between the two Ambani brothers, Mukesh and Anil, ended last week in the Supreme Court, and now the speculation is over the date of the judgment.

The Supreme Court does not set any deadline for delivering its judgments, though it has chastised the high courts for delaying verdicts unreasonably, sometimes for years. Some high courts have taken the rebuke seriously and now indicate on top of their judgments the date when the arguments closed and when the decision was pronounced. The gap is now only a few days or weeks.

But the Supreme Court takes excruciatingly more time now to deliver its judgments compared to the high courts. This, despite statutory rules setting deadlines and a recent Law Commission recommendation to speed up delivery of judgments.

For instance, a bench headed by the chief justice reserved its judgment in the Bondu Ramaswamy vs Bangalore Development Authority case on March 23, 2007. It involved the right of hundreds of persons whose land was being acquired. They had raised several issues of contemporaneous significance. However, they have been waiting for nearly two years now for the final decision.

The fate of the much-awaited company law tribunal depends upon the decision of a five-judge bench headed by the chief justice in the R Gandhi vs Union of India case. The arguments closed in January this year. Similarly, another of his Constitution bench reserved its judgment in the Economic Transport Organisation vs Charan Spinning Mills case on December 3 last year. But no decision has been taken so far. There are several such decisions hanging fire.

Very often, judgments are delivered just a few days before one of the judges on the bench retires. If it is not done, the whole case will have to be reheard. While scurrying for the notes, some judges forget to consult their colleagues who record their resentment in their judgments. In the case of Kesavananda Bharati, one judge wrote a long preface to his judgment lamenting shortage of time to consider the issues (argued for six months before a 13-judge bench) and lack of consultation among the brethren.

The blame game was repeated when the famous Minerva Mills case was decided in great haste as one judge was retiring. Again, in a criminal case involving the then political heavyweight, Nandini Satpathy, a five-judge bench delivered a hurried judgment; but one of them recorded that he received a draft only at 4 pm the day before and, therefore, “I do not have time to write a detailed judgment.” These are only some recorded instances of admitted failure of judicial collectivity.

Chief Justice KG Balakrishnan is scheduled to retire in May next year. Therefore, all his judgments should come before that. If he delivers the judgments chronologically, the case of the small landholders of Karnataka should come first. Then there are several others like the company law tribunal case. If the court breaks the chronological order to deliver the judgment in the Reliance case first, people will raise questions about the “expedition” in corporate cases.

Two decades ago, there was a furore over the court expediting cases where the rich and the powerful were involved. Bail was granted to a top industrialist at a judge’s residence at midnight when the then chief justice was away. The debenture issue of a top company was also decided with extraordinary urgency at a judge’s residence. The bail matter of actor Sanjay Dutt was referred to a Constitution bench in the absence of the chief justice and was decided at break-neck speed.

In one judgment, in the case of D Navinchandra vs Union of India (1987), the then chief justice wrote: “My conscience protests to me that when thousands of remediless wrongs await in the queue for this court’s intervention and solution for justice, petitions at the behest of diamond exporters and dry fruit exporters where large sums are involved should be admitted and disposed of by this court at such quick speed.”

Respected late jurist HM Seervai noted several such cases and pleaded in an essay “to make sure that people do not feel that there is a short and swift road to justice for the wealthy, the powerful and the well-connected, and another long, weary and heart-breaking road to justice for others.”

The Supreme Court has told the high courts that if they don’t deliver judgments for a long time, the cases should be reheard. It said in the case, Anil Rai vs State of Bihar (2001): “The judges themselves normally forget the details of the facts and niceties of the legal points advanced. Sometimes the interval is so long that the judges forget even the fact that such a case is pending with them. Though this is an unpleasant fact, it is a stark reality.”

Ironically, the comments read true of the Supreme Court itself.