Judgment N. C. JAM, J. ( 1 ) THIS application u/section 482 Cr. P. C. is directed against the order of the learned Sessions Judge, Pali dated 21st August, 1982 upholding the order of the Sub. Divisional Magistrate, Sojat, dated 14-6-1979 whereby, the learned Sub-Divisional Magistrate in proceedings u/section 145 Cr. P. C. attached the land in question and appointed a receiver and as it was not possible forhim to decide as to which party was in possession, he directed the parties to approach the competent court and get their rights adjudicated. ( 2 ) THE facts of the case may briefly be stated. The respondent Labhu submitted an application u/section 145 Cr. P. C. before the Sub-Divisional Magistrate, Sojat on 28-6-1977, on which a preliminary order was drawn on 4. 7-1977. Along with the application, certain affidavits were filed by the applicant Labhu. Against the preliminary order dated 4-7-1977 Gopa Ram preferred revision petition before the Sessions Judge, Pali and the learned Session Judge by his order dated 31st January, 1979 set aside the preliminary order dated 4-7-1977 and directed the applicant Labhu to submit duly sworn affidavits and the Sub. Divisional Magistrate was directed to proceed in the matter in accordance with law. Thereafter, the learned Sub-Divisional Magistrate took on record the affidavits filed by the applicant Labhu Learned counsel for the applicants submits that the applicants have also submitted their affidavits. Be that as it may, the learned Sub-Divisional Magistrate proceeded to dispose of the matter u/section 145 Cr. P. C. by observing that it is not possible to decide the question of possession and directed the parties to approach the competent court, and till the matter is decided he ordered. appointment of receiver and Tahsildar, Sojat was appointed as receiver. ( 3 ) I have heard the learned counsel for the parties. The main contention of the learned counsel for the applicants is that the learned Sub-Divisional Magistrate ought to have complied with the provision contained in sub-sec. (4) of Section 145 Cr. P. C. He should not have decided the matter simply on the basis of affidavits. Section 145 (4) Cr. P. C. clearly lays down that after drawing up of the preliminary order and after notice to the non-petitioners and service of the order as mentioned in sub-sec. (4) of Sec. 145 Cr. (4) of Section 145 Cr. P. C. He should not have decided the matter simply on the basis of affidavits. Section 145 (4) Cr. P. C. clearly lays down that after drawing up of the preliminary order and after notice to the non-petitioners and service of the order as mentioned in sub-sec. (4) of Sec. 145 Cr. P. C. , the Magistrate shall peruse the statements so put in. hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties at the date of the order made by him under sub section (1), is in possession of the subject of dispute. Learned counsel for the applicants submitted that no separate preliminary order was passed u/ sec. 145; Cr. P. C. This objection of non-compliance of sub-sec. (4) of Sec. 145 Cr. P. C. was raised by the applicant before the learned Sessions Judge and the learned Sessions Judge did not examine the question and he stated that the matter could be disposed of on the basis of the affidavits, as the affidavits constitute evidence in the case. ( 4 ) IT may be stated that while accepting the revision by the Sessions Judge against the first preliminary order, the preliminary was set aside and in connection with the passing of the preliminary order, the learned Sessions Judge directed the petitioner to submit duly sworn affidavits. This direction was given in connection with the passing of the preliminary order. The matter was not directed to be disposed of on the basis of the affidavits. The learned Sub-Divisional Magistrate ought to have passed a separate preliminary order and then called upon to submit the written statements and to produce the evidence, No such procedure, has been adopted by the learned Sub-Divisional Magistrate. Under sub-section 3 of Section 145 Cr. P. C. , the preliminary order is required to be served on the persons, as the Magistrate may direct and it is further provided that at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute. Admittedly, this procedure has not been followed. Before proceeding further, u/sec. (4) of Section 145 Cr. P. C. , the learned Magistrate is under an obligation to follow the procedure laid down in sub-sec. Admittedly, this procedure has not been followed. Before proceeding further, u/sec. (4) of Section 145 Cr. P. C. , the learned Magistrate is under an obligation to follow the procedure laid down in sub-sec. (3)- It is only after compliance of sub-sec. (3), the parties are required to produce evidence. The procedure of disposing the proceedings u/sec. 145 Cr. P. C. , on the basis of affidavits, stands amended under the New Code of Criminal Procedure. Under sub file:// :\program Files\crimes\database\aa\aa\cmo 1988-2 (262 of 1982 ). htm 9/5/2006 section (4), the Magistrate has to afford an opportunity to produce the evidence and he himself, if he so likes take such further evidence as may be thought necessary by him and thereafter be is required to decide the matter. Admittedly, the evidence has not been received by the learned Magistrate. In these circumstances, it would be proper to set aside - the order of the learned Sessions Judge as well as the order of the learned Sub-Divisional Magistrate and that be may proceed afresh on the petition submitted by the Labhu. ( 5 ) ACCORDINGLY, this application is allowed; Both the impugned orders are quashed and the matter is sent back to the Sub-Divisional Magistrate to proceed afresh on the application submitted u/sec. 145 Cr. P. C. if the circumstances of the case warrant. Application allowed. TWO SIDES OF ATTCMPT TO SUICIDE by Dr. Satchidanand Rath, Advocate Berhampur (G. M.) (Orissa) Life is the gift of God and a right inherited by nature. The right to life includes his body in its completeness, It begins by birth and ends by death. The beginning has been considered at different stages under different Jaws, it begins with conception under Hindu Law of inheritance and by birth for the civil rights. In a democratic country life, liberty and property is used to denote every freedom as a representative term. Every individual has an interest on its person and life, Person is life living body and every sovereign is obliged to protect all its persons from invasion from internal or external interference. Literally, an offence is an act or omission causing displeasure, resentment or annoyance to others. It is a wrong in violation of divine or human law. It may be a sin. It has also been defined as an act or omission punishable by any law of the land. Literally, an offence is an act or omission causing displeasure, resentment or annoyance to others. It is a wrong in violation of divine or human law. It may be a sin. It has also been defined as an act or omission punishable by any law of the land. A crime is an offence and it is the duty of the crown to prevent them and punish the criminals. Crimes may affect the public as a whole or may affect an individual. They are acts not acceptable to a given society. While homicide is a crime, suicide is a vice, a violation of morality and both are offences. Self-preservation being an inalienable right is protected by the State. The inalienable right is protected by the State. The act of suicide is an offence and is dealt with in this article. Crime is accepted as a relative term. Its concept varies with the values of society. It results in harm or injury to an individual or to the society at large; such harm may be corporeal, mental or property. Criminal behaviour is an inevitable social phenomena germinates within the society. It varies in degree at different places and at different times. The type, form and degree of criminal behaviour help in gauging the social values of a state. Every individual being the subject of the State, the sovereign ensures self-preservation. The concept of freedom to life and liberty in India has undergone a redical social change. Art. 21 of the Indian Constitution provides protection to life and liberty of Indians. It states that No person shall be deprived of his life personal liberty except according to procedure established by law. The due process of law though not expressly worded have been made applicable by judicial pronouncements deriving from the facets of the Constitution. In Maneka Gandhis case with new dimensions the right to freedom developed articulately (A. I. R. 1978 S. C. 597 ). Earlier in Kharak Singhs case (AIR t963sc. 1295) followed in Sunil Batras case (1978 Cr. L. J. 174), the scope of personal liberty was widened to the extent that life and liberty does not mean merely the right to continuance of a persons animal existence, but a right to the possession of his organs also as scope is, further widened in Fracis Coralie Mullion v. Union Territory of Delhi, (A. I. R. 1981 S. C. 746 ). It was held that the right to life includes the right to live with human dignity and all that goes along with it namely, the bare necessaries of life. . This was reiterated and reaffirmed by Supreme Court in Bombay Payment Dwellers case (AIR 1986 S. C. 180 ). The right to livelihood has been considered as a part of the constitutional right to life. It impliedly overruled the ratio laid in Re: Sant Ram (AIR 1960 S. C. 9321. Voluntary donation of parts, limbs, blood eye etc. are permissible and are not restricted by law thereby recognizing the right of individual to deal with this body as he chooses. Life and body with all limbs are ones own property and be is the sole master of it. With such advancement of social values to Indian Life the society faces a new challenge. Whether right to live includes a right not to live. Whether the right not to live permits suicide, which is not defined in any law. Suicide is not an offence as the person no longer exists to be dealt under law. While some suicides are eulogised others are condemned. An attempt to commit suicide is an offence as the principal offender while abetment or coercion to another to commit suicide are offences as the accessories before or after the fact. In English law, if two persons mutually agree to commit suicide together, and the means employed to produce death only takes effect on one, the survivor will be guilty of the murder of the one who died. Suicide is considered as a self murder. It is a felony at common law and are covered by offences against the person Act 1961. Many states do not recognise the attempted suicide as a crime. In Japan a lact of expiation for defeat or self sacrifice has always been praised. Mayne observes; Suicide is the only offence for which it is impossible to punish the principal offender. He goes beyond reach of human law; only those who instigate or help him in the act, remain. In order to prevent suicide attempt at suicide has been made an offence. Suicide means self-killing, to die by his own act, to take his own life, voluntary and intentional self destruction. It does not necessarily involve the idea of a felonious self destruction. In order to prevent suicide attempt at suicide has been made an offence. Suicide means self-killing, to die by his own act, to take his own life, voluntary and intentional self destruction. It does not necessarily involve the idea of a felonious self destruction. But if the act of suicide fails to accomplish its purpose, it constitutes an attempt to commit suicide, which is an offence under Sectiont 309 I. P. C. Abetment to commit suicide are penal under Sections 305, 306 and 498-A I. P. C. Law esteems the life of a man valuable not only for himself but also for the State. The responsibility of the state is to protect the life of every subject. It not only prevents from taking ones own life but also prevents from taking lives of others. Homicide is the causing of death of one person by another. It may be culpable homicide simpliciter or it may amount to murder. Some of the etiological factors responsible for committing suicide are poverty, distress, loss of honour or fortune, starvation or to attain divine essence. Contemplation, preparation, attempt and commission are the four stages of a crime. The first, second and fourth stages are not penal but only the third stage of suicide is an offence. It is an inchoate crime. It is self murder no short or no less to murder. It is achieved by violence. The painful struggle a man suffers while attempting to commit suicide leave a sad pan icy in the mind of others. In India suicide is condemned as a sin. A section of people were justifying self- sacrifice and glorifying SATI now totally banned. Section 498-A I. P. C. has opened a new area of Section 306 I. P. C. It is introduced by the Criminal Law (Second Amendment) Act, 1983, (Act 46 of 1983 ). If reflects the anxiety of parliament towards cruelty to woman by her husband and in-laws. It is an extended provision of Section 4 of the Dowry Prohibition Act with the difference that Section 498-A is attracted only in cases of crueltyt whereas mere demand attracts Section 4 of the Dowry Prohibition Act. We got two interesting and inconsistent decisions regarding constitutionality of Section 309 IPC. The first case is Shri Marati Sripati Dubal v. The State of Maharastra (1986 (3) Crimes 517) of Bombay High Court. We got two interesting and inconsistent decisions regarding constitutionality of Section 309 IPC. The first case is Shri Marati Sripati Dubal v. The State of Maharastra (1986 (3) Crimes 517) of Bombay High Court. In the case the petitioner, a police constable attached to the Bombay City Police Force was declared to be suffering from schizophrenia due to head injuries received in a road accident. He was also found suffering from auditory and visual hallucinations. He lost his service for such physical deformities. On 27th April, 1985 at 10 a. m. he tried commit suicide outside the office of the Municipal Commissioner, Greater Bombay by pouring kerosene on himself and tried to lit his clothes. The immediate cause of his attempt to Commit suicide was that the delay in disposal of his wifes application for licence and he was also not allowed to meet the commissioner for personally delivering the recommendation of the Minister. A case U/s. 309 IPC was registered against him which was challenged under Art. 227 of the Constitution on the ground that the provision is unconstitutional. The court approached with a conjoint reading of Articles 21 and 19 of the Constitution. It was held that Article 21 includes right to life and liberty and Article 19 provides extension to the right to life. Referring to Maneka Gandhis case, Sunil Batras case and Bombay Pavement Dwellers case, the court held that right to life and right to live also include a right not to live or not to be forced to live, otherwise it would include a right to die. A corolory concept was deduced from the observations made in R. C. Cooper v. Union of India (A. I. R. 1970 S. C. 1318) and held that the fundamental rights of the Constitution are co-extensive and have their positive as well as negative aspects. There is nothing unnatural for a person to die. It is also no less than his act of living. It is respectfully submitted that it was an incident of abnormality or of an extraordinary situation or of a trait of personality, yet are not unnatural though exceptional. Several circumstances are responsible for such a determination to end the life. It was a positive right declared by the Supreme Court. A negative approach to the positive right has been pronounced extending to the negative side of right to life. Several circumstances are responsible for such a determination to end the life. It was a positive right declared by the Supreme Court. A negative approach to the positive right has been pronounced extending to the negative side of right to life. The concept of right to life has not been given a negative approach in any of the earlier decisions referred to by the court. The section imposes an uniform penalty for the offence irrespective of the compelling circumstances and was held arbitrary. The provisions of Section 309 IPC was held unconstitutional for these reasons. No doubt, the reaction of community at suicide is not uniform and varies from condemnation to acclamation depending on the situation also surroundings. The concept of right die, of course, is not new to Indian Society but has been regulated and influenced by moral and ethical norms. No ethic acclaims to end ones own life unless otherwise considered necessary. Quoran has declared suicide as a homicide Dharma Shastras consider even its contemplation or attempt as a sin and punishment is prescribed in Yama Purana. Even suicide at holy places has not been considered wiping the sin of suicide. Though it is justified in cases of people born for specific purpose and his continuance in life considered unwarranted in the puranas. In the case, the court appears to have been influenced on the instances of self sacrifice narrated in puranas to observe the rule of bodily purification. The act of suicide has been considered with a liberal view with wide connotations accepting all types of intention, neglect or pain as attempts to suicide. The rater decided ease was by the Division Bench of Andhra Pradesh High Court in Chenna Jagadeshwar v. State of A. P. ( 1988 (1) Crimes 357 ). In the case the appellant Jagadeshwar, a young doctor who had married to Saroja, daughter of P. W. 3 and set up practice at Mallal Jagyal Taluk in Karim Nagar district and was earning about Rs. 500 to 600 a day. In a function performed by appellant, P. W. 3 did not attend the same and expressed before others to have given enough to appellant. The next morning the appellant; his wife and their four children were found lying dead inside the house All the four children were found dead by an over dossage of gardinal tablets, compose injunctions and phenobarbitone poison. The next morning the appellant; his wife and their four children were found lying dead inside the house All the four children were found dead by an over dossage of gardinal tablets, compose injunctions and phenobarbitone poison. Both the parents were charged 0/s. 302 IPC for committing murder of their four children and the appellant Jagadeswar was further charged u/s. 307 IPC for attempting to commit murder of his wife and u/s. 309 IPC for attempting to commit suicide. The appellant was convicted for murder attempt to murder his wife and for attempting to commit suicide. A reference was made to the Bombay Hight Court Case (Sripati Dubals case) and dissented from the views. The court quoted Cmile Durkhicm,t term suicide is applied to all cases of deaths resulting directly or indirectly from a positive and negative act of the victim himself, which he knows will produce the result. An attempt is an act thus defined but falling short of actual death. The court considered the issue with an etological approach on the social point of view considering the various factors responsible for tempting a person to commit suicide. The court agreed with the concept that right to life includes right to live but disagreed to the extent that such a right also includes a right not to live. The court made an irrational comparison of suicide with theft and homicide, which does not seem stand to reason. The rational approach of the court was that cases of hunger strike, sati, self immolation and other potential situations would be saved by the illusory traditional hypothetical approach. Section 309 IPC was held not unconstitutional. Considering the concept of law and its object and utility, law is always considered to be dynamic stepping forward to meet the needs of the society. It has always to be interpreted and applied in its sociological concept and utility. Both the courts did not refer to the ratio of Supreme Court laid in Smt. Sowmitri Vishnu v. Union of India. 1985 (2) Crimes 452. It was a case challenging the constitutionality of Sec. 497 IPC, which is admittedly gender discriminatory and male chauvinism violative of Articles 14 and 15 of the Constitution. Both the courts did not refer to the ratio of Supreme Court laid in Smt. Sowmitri Vishnu v. Union of India. 1985 (2) Crimes 452. It was a case challenging the constitutionality of Sec. 497 IPC, which is admittedly gender discriminatory and male chauvinism violative of Articles 14 and 15 of the Constitution. Though it was agreed that right to life also includes right to reputation under Article 21, in view of the legislative policy though there is no provision for hearing the wife in such cases can not render the section unconstitutional Right to live and liberty to die are ends of birth and death not dependent on the will and pleasure of an individual. A positive right cannot go together with a negative right. Every individual being a member of the society is not at liberty to withdraw at his will. The society would become non-existent if such negative rights are allowed to be enjoyed. It is likely to be used as a threat for personal gains. The societal responsibility as when as the State do not concur for extending Tthe right to live towards right not to live. Our jurisprudence needs further. constitutional interpretation to set right the anomaly in the direction of the social goal. Poverty, fraustration, desperate, unemployment, are some of the factors responsible for suicide and a little further march of life and liberty can avoid this plight.