Case Briefs
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Berin P. Varghese vs State of Kerala


Author: Bharat Sharma, 3rd Year, RNB Global University.

Citation: 2008 (1) KHC 164

Date of Decision: December 18, 2007

Bench: R. Basant

Original Copy: N/A

Statutes involved: Indian Penal Code, 1860, Kerala Prohibition of Ragging Act, 1996, Code of Criminal Procedure Act, 1973

 

Issues in question:

  • Whether the petitioner is liable under Section 306 r/w. 116 of the Indian Penal Code?
  • Whether the offence of ragging under the Kerala Prohibition of Ragging Act, 1996 has been committed or not? 
  • Whether the offences under Section 309 r/w. Section 511, are committed or not?

Background of the case

  • A young student from rural background and belonging to an economically weaker Section of the community took admission in State run professional college at Government Veterinary College, Mannuthi. On 09.10.2007 he joined the college, the young student was subjected to a humiliating, harrowing, embarrassing and harassing attitude from his seniors. In the name of ragging, he was subjected to the most inhuman method of physical torture as well as mental torture. On 18th October he went back to his house but on 22.10.2007 he was forced to come back to college.
  • When he returned from his home, he felt that he would not be able to avoid the embarrassing, harassing, and harrowing experience any further. He was call to perform the act of oral sex with his senior student. Realising that he has no chance to escape from such experience any longer than he decided to commit suicide by cutting his vein on the wrist. But he was taken to the hospital on time and his life was saved. But the police did not take any action against him Section 309 of I.P.C.
  • Police officers found that the offence of ragging was committed under Section 4 of the Kerala Prohibition of Ragging Act, 1998. But by the Code of Criminal Procedure those offences are non-cognizable and bailable. The different allegations were attempts to make in these circumstances under Sections 306, 377, r/w. 511 of I.P.C. On the direction of learned D.G.P., allegations are raised of offence, under Section 306 r/w. 511 of I.P.C.
  • The Senior students of the said college are petitioner, they apprehend that they may be arrested. That’s why the petitioners approached the learned Session Judge for Anticipatory bail. The Session Judge observed that Section 306 of I.P.C. did not play any role in this case. Session court stated that seeking direction under Section 438 of the CrPC petitioners have come to the court. The petitioner builds up the claim for granting Anticipatory bail on the four points. – (a) That the Investigation officer did not array the petitioners as accused. (b) No such allegations were made that indicates that there was any abetment from by the petitioner for suicide or attempt. (c) with the help of Section 306 of I.P.C. the attempt to abet suicide is not a n offence punishable. (d) only under Section 309 r/w. 116 I.P.C. is made which is also bailable.

Judgment:

  • After observing all the four points raised by the petitioner, the court first reminded that the jurisdiction of this court under Section 438 of CrPC Court said to act in aid of justice, Superior court without giving any specific guidelines conferred this an extraordinary equitable discretion under Section 438 of CrPC. 
  • The learned D.G.P. submits on the behalf of petitioner that the petitioner has not been arrayed as accused admittedly. He also submits that the petitioner has to be interrogated and after the test identification is conducted along with satisfactory legal data is collected against the petitioner then only the arrest shall be affected. The High Court observed that the submission of learned D.G.P. that the petitioner is not arrayed as accused was not sufficient reason to concede to petitioner the right to claim Anticipatory bail. That’s why the first point cannot succeed.
  • The High Court also said that legally, if the person abets for commission of suicide, proceeded under Section 306 r/w.511 of I.P.C. and when person is abets attempt to commit suicide, but does not succeed in it, be proceeded under Section 309 r/w. 116 of I.P.C. Court observed that if suicide is not punishable then the abetment to commit suicide is not punishable has been rejected for a long time. Not only the abetment of an offence but also abetment of any act makes it punishable by the Penal law. Attempt to commit suicide is viewed different from abetment of commission of suicide. Under Section 309 of I.P.C. punishment for attempt to commit suicide is only one year or with fine or with both, but under Section 306 abetment to commission of suicide is punishable with imprisonment for 10 year and fine.
  • The High court also observed that the Session Judge went wrong in the Section 116 linked with Section 306 of Indian Penal Code. High court along with this observed that offence under Section 306 of the Indian Penal Code is itself an abetment. And the question of abetment does not come under Section 306 of I.P.C. if there is no abetment. Therefore, High said that there is no offense under Section 306 of I.P.C.
  • By the words use in the language of the Section under Section 306 is “if any person commits suicide”, the court observed that it cannot be held that if the there is no commission of suicide, then no attempt of abetment is done. Abetment is completed when the suicide is committed and if suicide is successfully taking place the principal of Section 306 is applicable. 
  • The High court with the upshot of the above discussion said that there is no inherent defect and the unfortunate victims against whom allegations are raised under Section 306 r/w. 511 of the I.P.C.  and legitimately be proceeded against under Section 306 r/w. 511 of I.P.C. In regard to the Kerala Prohibition of Ragging Act, 1996 court said that Academic campus is not out of the zone of law. Law is applicable in every place if its entrance is essential.  Court said that the D.G.P. take effective action against this unexpected act which still exists in the Academic campus. At the end bail applications were dismissed by the High Court. 

Critical Analysis

  • In the present case Section 306 r/w. 116 which is related to abetment to commit suicide was discussed along with this Section, another Section of Indian Penal Code Section 309 r/w. Section 115 which is related to attempt to commit suicide were discussed. And interpenetration of these two Sections were also done by the High Court. 
  • Then the Kerala Prohibition of Ragging Act, 1996 was also discussed and the importance and scope of the act were observed by the High Court in this case.

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