IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 2ND SEPTEMBER 2010 / 11TH BHADRA 1932 Crl.MC.No. 2676 of 2008() ------------------------------------- CC.1401/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, WADAKKANCHERY .................... PETITIONER/ACCUSED: ---------------------------------- BALAMANI, AGED 34, D/O.KAVERI AMMAL, PARAMELPADY THERUVU, KONDAZHI.P.O., PAZHAYANNUR, TRISSUR BY ADV. SRI.K.S.MADHUSOODANAN, SRI.T.V.JAYAKUMAR NAMBOODIRI, SRI.THUSHAR NIRMAL SARATHY, SRI.M.M.VINOD KUMAR, SMT.K.M.RAMYA. RESPONDENT/FORMAL PARTY/COMPLAINANT: ---------------------------------------------------------------------- STATE OF KERALA TO BE REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.2676 OF 2008 --------------------------------------------- Dated 2nd September, 2010 O R D E R Can a person be prosecuted for the offence under Section 309 of Indian Penal Code on the ground that he has undertaken an indefinite fast. This is the question to be decided in this case. Petitioner, the accused in C.C.512/2004 on the file of Judicial First Class Magistrate's court-I, Wadakkanchery taken cognizance for the offence under Section 324 of Indian Penal Code was released on bail. When she failed to appear, a non bailable warrant was issued. When she appeared subsequently, she was remanded to judicial custody. She was taken to Central Prison, Viyyur. It was contended that she was illegally detained Crmc 2676/08 2 and that too without considering her representation that she could not appear as her sister is being treated in Medical College Hospital in serious condition. As she was remanded, she had undergone an indefinite fast stating that unless her grievance is met, she will not take food. The Superintendent of Central Prison furnished Annexure-I report before Judicial First Class Magistrate, Wadakkanchery narrating the facts for taking appropriate action. Learned Magistrate numbered the report as M.P.3184/2006. After recording the sworn statement of the Superintendent, he took cognizance of the offence under Section 309 of Indian Penal Code. It is challenged in this petition filed under Section 482 of Code of Criminal Procedure contending that the order is illegal and Crmc 2676/08 3 Section 309 of Indian Penal Code is not at all attracted. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Learned counsel appearing for the petitioner relying on the decision of the Madras High Court in Ramamoorthy alias Vannia Adikalar v. State (1992 Crl.L.J 2074) submitted that petitioner has only undergone a fast till her demands are met and she has not threatened to commit suicide and therefore, an offence under Section 309 is not at all attracted. 4. Annexure-I report submitted by the Superintendent only reveals that petitioner refused to take food from the date of her admission in the jail raising a grievance that Crmc 2676/08 4 she was illegally detained and she has to be produced before the Sessions court and if not, she will undergo fast. Annexure-I report shows that the representation submitted by the petitioner was enclosed along with the report of Superintendent of Central Prison. Copy of her representation was made available by the learned counsel appearing for the petitioner. It shows that case of the petitioner in her representation was that she is a kidney patient and was in the hospital and on 12/5/2006 she could not appear in the court as her sister was admitted in the Medical College hospital on serious condition and she needed blood and they are the only three sisters and there is nobody else to help them. In such circumstances, she could not appear before the court. Though she revealed the Crmc 2676/08 5 facts to the Magistrate, Magistrate did not accept the same and remanded her. Therefore, she will not take food, unless her grievance is met. There is no threat of suicide or attempt to commit suicide in the representation. At best it could be stated that petitioner threatened that she will undertake fast till her demands are met. That does not mean that she should necessarily end her life by not taking any food. Such an agitation on the part of the petitioner will not attract an offence under Section 309 of Indian Penal Code. It is to be born in mind that in India fast undo death is not an uncommon affair and it is a democratic powerful weapon. Even Father of the nation had undertaken this exercise on several occasions. Considering the entire facts and circumstances of the case, cognizance taken Crmc 2676/08 6 against the petitioner can only be quashed. Petition is allowed. C.C.1401/2007 on the file of Judicial First Class Magistrate, Wadakkanchery is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.