General
Exceptions
Chapter IV of the Penal Code 1860 deals
with the subject of exceptions to criminal liability and enumerates the facts
or circumstances which negative or reduce criminality. Throughout the Code
every definition of an offence, every penal provision and every illustration of
such definition of the penal provision shall be understood subject to the
exceptions contained in this Chapter, though these exceptions are not repeated
in such definition, penal provision or illustration (s. 6). Under section 105
of the Evidence Act, the burden of proving the existence of circumstances which
bring the case of an accused within any of the general or special exceptions in
the Code is upon the accused and the Court shall presume the absence of such
circumstances.
This chapter contains 31 sections
(sections 76-106). The main principles may, however, be summarised thus:
(1)
Absence of mens
rea-sections 81-86 and 92-94
(2)
Accident-section 80
(3)
Mistake-sections 76 and
79,
(4)
Acts done by
consent-sections 87-91,
(5)
Privileged acts-sections
77-78;
(6)
Trifling acts-section 95,
and
(7)
Right of private
defence-sections 96-106
Section
76
Act
done by a person bound, or by mistake of fact believing himself bound, by law
Section 76
provides that “nothing is an offence which is done by a person who is, or who
by reason of a mistake of fact and not by reason of a mistake of law in good
faith believes himself to be, bound by law to do it.”
Illustrations
(a) A, a soldier,
fires on a mob by the order of his superior officer, in conformity with the
commands of the law. A has committed no offence.
(b) A, an officer
of a Court of Justice, being ordered by that Court to arrest Y. And. After due
enquiry, believing 2 to be Y. Arrests Z. A has committed no offence.
Section
Analysis
Section 76 excuses
a person who has done what by law is an offence under a misconception of facts
leading him to believe in good faith that he was commanded by law to do it.
This section is of special importance in regard to the Military and Police
acting under their superiors' commands and in respect of private persons
assisting the Police.
This section and
section 79 are based upon the well-known Latin Maxim, that ignorance of law is
no excuse. Everyman is presumed to knew the law. However, ignorance of fact is
a valid defence in a law. The essentials regarding mistake falling under
sections 76 to 79 are that-
(a) It
must be bonafide
(b) The
mistake must be one of fact.
Where an offence
is committed by reason of a mistake of fact in good faith, the offender is
entitled to the benefit of sections 76 to 79 in holding a person guilty of an
offence, the existence of mens rea in himself is essential
Illustrative
cases
·
Act done under the order
of superior
(1) Whereas
a result of the mob violence the Deputy Commissioner ordered police force to
open fire and, in the firing, resorted, to in pursuance of that order some
persons in the mob were killed, it was held, that the member of the police
force who opened fire could seek protection of the order of the superior (order
being justified) and plead that they acted in obedience to tut order and
therefore they could not be held guilty of the offence of murder with which
they were charged.
-AIR
1981 SC 1917.
·
Arrest under warrant of
Court.
(1) A
Police officer arresting a wrong person under a warrant under bona fide mistake
of fact is not liable and is protected by this Section.
-AIR 1924 Bom 333.
·
Mistake of law;
(1) It
is a general principle that a mistake or ignorance of law, however-bona fide,
is no defence to a charge of a criminal offence.
-AIR 1928 Nag 188
·
Mistake of fact.
(1) An
error on a mixed question of law and fact is treated as a mistake of fact.
-AIR
1951 Orissa 284
· Mixed
question of question of law and fact
Mixed question of question of law and fact is
treated as a mistake of fact.
-AIR
1951 Orissa 284
·
Good faith
(1) Where
the accused was not, as a matter of fact, bound by law to do the act Impugned
as an offence, he may still rely on this section where after taking due care
and attention, he believed in a certain state of facts which would, if true,
have made his act an obligatory one under the law. Thus, due care and attention
on his part are essential before he can plead good faith under, this section.
-AIR
1943 Pat 64.
Section
77
Act
of Judge when acting judicially
Section 77
provides that "nothing is an offence which is done by a Judge when acting
judicially in the exercise of any power which is. or which in good faith he
believes to be, given to him by law."
Under this section
a Judge is exempted not only in those cases in which he proceeds irregularly in
the exercise of a power which the law gives to him, but also in cases where he
in good faith, exceeds his jurisdiction and has no lawful powers. It protects
Judges from criminal process just as the Judicial Officers Protection Act,
1850, saves them from Civil suits.
Illustrative
cases-
· Analogous
law
(1) The
protection afforded by the Judicial Officers’ Protection Act is not absolute
but qualified.
-AIR
1969 Pat 194.
(2) The
protection afforded to judicial officer’s rests on public policy, but it does
not follow that a malicious Judge can exercise his malice with impunity. His
conduct can be investigated elsewhere, and due punishment awarded.
-(1905)7
Bam LR 951 (DB)
·
Illegal refusal of
bail-Lability of Magistrate for wrongful confinement
(1) Where
a Magistrate illegally refuses bail to a person from an improper motive, he
will be liable for wrongful confinement as the improper motive proves the
absence of good faith on the faith of the Magistrate.
-
4 QB 468
·
Unwarrantable delay in
disposal of criminal cases
(1) An
unwarrantable delay by a Magistrate in the disposal of a criminal case and the
consequent detention of an under-trial prisoner illegally beyond the period
allowed by law will make the Magistrate liable to a suit for damages and he will
not be entitled to the protection of the Judicial Officers’ Protection Act 18
of 1550)
-(1869)
11 Suth WR 19 (Cri)
Section
78
Act
done pursuant to the judgment or order of Court
Section 78 provides that “nothing which is
done in pursuance of or which is warranted by the Judgment or order of, a Court
of Justice, if done whilst such judgment or order remains in force, is an
offence, notwithstanding the Court may have had no jurisdiction to pass such
judgment or order. Provided the person doing the act in good faith believes
that the Court had such jurisdiction.”
(1) This
section is a corollary to section 77. It affords protection to the officer
acting under the authority of judgment or order of a Court.
(2) This
section is supplementary to S. 77. S. 77 deals with Immunity of Judges from
criminal liability for acts done by them while acting judicially. This section
deals with the immunity of ministerial officers or others executing the process
of Court Issued in pursuance of the judgments and orders of Court.
-(1837-1841)
2 MIA 293.
Section
79
Act
done by a person justified, or by mistake of fact believing himself justified,
by law
Section 79
provides that “nothing is an offence which is done by any person who is
justified by law, or who by reason of a mistake of fact and not by reason of a
mistake of law in good faith, believes himself to be justified by law, in doing
it.”
Illustrations
A sees Z commit what appears to A to be a
murder. A. In the exercise, to the best of his judgment, exerted in good faith
of the power which the law gives to all persons of apprehending murderers in
the act, seizes Z. In order to bring Z before the proper authorities. A has
committed no offence. Though it may turn out that Z was acting in self-defence.
Scope
and applicability
· This
section is analogous to section 76. While section 76 deals with cases in which
a person acts in the belief that he is bound by law to act in a particular
manner, section 79 deals with the cases in which a person acts in the belief
that he is justified by law to act. Mistake of law is no justification under
this section.
· This
section can be distinguished from section 132 CrPC Protection given by this
section is a protection against conviction, while protection under section. 132
CrPC is a protection against trial.
· This
section excuses a person who has done what by law is an offence, under a
misconception of facts, leading him to believe in good faith that he was bound
or justified by law to do it. But in order to entitle a person to claim the
benefit of this section it is necessary to show the existence of a state of
facts which justify the belief in good faith that the person was bound or
justified by law to do as he did.
Illustrative
cases-
Examples
of acts held justified by law.
(1) A
person is entitled to cut off those portions of the tree growing on his
neighbour’s land which overhang his land. Hence, his act in cutting off such
portions of the tree does not amount to an offence under S. 427 (Mischief).
–
1978 KerLT 441
(2) When
the Police officer acts within the limits of his power, it is not necessary to
consider whether he has acted corruptly or maliciously
-(1886) ILR 10 Bom 506
· Distinction
between section 76 and section 79.-
Under section 76 a
person believes himself to be bound by law to do a particular act, whereas
under section 79, he similarly believes himself to be justified by law to do
it. That is to say, under section 76 a person believes that he is under a legal
obligation to do the act which is the subject of the charge: while under
section 79 he believes that he has legal justification in doing It. The
distinction thus lies between a real or supposed legal obligation and a real or
supposed legal justification in doing the particular act. Under both the
sections there must be a bona fide intention to advance the law, manifested by
the circumstances attending the act which is the subject of the charge and the
party accused cannot allege generally that he had a good motive, but must
allege specifically that he believed in good faith that he was bound by law to
do as he did. Or that being empowered by law to act in the matter, he had acted
to the best of his judgment exerted in good faith.
-First
Report, s. 114, p.219
Section 80
Accident in doing a lawful act –
Nothing is an
offence which is done by an accident or misfortune, and without any criminal
intention or knowledge in the doing of a lawful act in a lawful manner by
lawful means and with proper care and caution.
A is at work with a
hatched; the head flies off and kills a man who is standing by. here, if there
was no want of proper caution on the part of A, his act is excusable and not an
offence.
Section 81
Act likely to cause harm, but done without criminal intent and to
prevent other harm-
Nothing is an offence
merely by reason of its being done with the knowledge that it is likely to
cause harm if it is done without any criminal intention, and in good faith for
the purpose of preventing or avoiding other harm to a person or property.
It is a question of fact
in such a case whether the harm to be prevented or avoided was of such a nature
and so imminent as to justify or excuse the risk of doing the act with the
knowledge that it was likely to cause harm.
Illustrations -
- A ,the captain of a steam vessel,
suddenly and without fault or negligence on his part, finds himself in
such a position that, before he can stop his vessel, he must inevitably
run down the boat. B, with 20 or 30 passengers on board, unless he changes
the course of his vessel, and that, by changing his course, he must incur
the risk of running down a boat C with only two passengers on board which
h may possibly clear. Here, if A alters his course without any intention
to run down boat C and in good faith for the purpose of avoiding the danger
to the passengers in the boat B, he is not guilty of an offence, though he
may run down the boat C by doing an act which he knew was likely to cause
that effect if it is found as a matter of fact that the danger which he
intended to avoid was such as to excuse him in inquiring the risk of
running down C.
- A, is a great fire, that pulls
down houses in order to prevent the conflagration from spreading. He does
this with the intention in good faith of saving human life or property.
Here, if it be count that the harm to be prevented was of such a nature
and so imminant as to excuse A’s act, A is not guilty of the
offence.
Section 82
Act of a child under (nine) years of age-
Nothing is an offence
that a child does under (nine) years of age.
The immunity of children
under nine years of age from criminal liability is not confined to offenders
under the Code only. Still, it extends to offences under any special or local
law by virtue of section 40. A child under nine years of age cannot distinguish
right from wrong and if he is prosecuted the very fact that he is below nine
years is a sufficient answer to prosecution.
Section 83
Act of a child above (nine) and under twelve of immature
understanding.
Nothing is an offence
done by a child above nine years of age and under twelve, who has not attained
sufficient understanding to judge the nature and consequences of his conduct on
that occasion.
This section may
be read along with the children act 1974, where the definition of a child; has
been given in section 2(f) of the act and according to the provisions of
section 71, of the said act the words “conviction” and “sentence” shall not be
used in relation to children.
If a child between nine
to twelve years of age is to be convicted of an offence it must be shown or
proved that he has sufficient maturity of understanding to judge the nature and
consequences of the act done.
Full criminal
responsibility irrespective of maturity or understanding commences after a
person attains the age of twelve years.
Illustrative cases-
- An act of a child over 7 years
of age and under 12 years should not be taken as an offence unless it can
be shown that he has attained sufficient maturity of understanding the
consequences of his conduct. 31 DLR 101.
- Beyond the age of 12 years,
there is no immunity from criminal liability, even if the offender is a
person of undeveloped understanding and not capable of understanding the
nature and consequence of his act. AIR 1959 All 698.
- The proceeding against ⅘ years
old child can not be allowed to continue and hence it should be quashed. Labu
Mia vs. State (criminal) 53 DLR 218.
·
Theft by a child - Receipt of stolen property
from a child-
Where theft is committed
by a child of 6 years and another person is charged under section 411 of the
Penal Code for having dishonestly received the property acquired by such theft,
it has been doubted whether such person can be held guilty under section 411.
(1885) J Weir 470.
·
The arrest of child offender-
As Section 82 exempts a
child under 9 years of age from any criminal liability, it is illegal for a
Police Officer to arrest a boy under 9 years of age for the offences of theft
and hence, an obstruction offered to such arrest is not an offence under
Section 255-B of the Penal Code. AIR 1916 Mad 642.
Section-84
Act
of person of unsound of mind
Nothing is an
offence which is done by a person who, at the time of doing it, by reason of
unsoundness of mind, is incapable of knowing the nature of the act, or that he
is doing what is either wrong or contrary to law.
Section
Analysis
Section-84 lays
down that a person is exonerated from criminal liability of doing an act by
reason of an unsoundness of mind, if he, at the time of doing the act, is
either incapable of knowing- the nature of the act, or that what he is doing is
either wrong or contrary to law.
Penal Code 1860
gives no definition of unsoundness of mind. But there are four kind of
persons who can be said to be non compos mentis (
not of sound mind):
a) An
idiot;
b) One
made non compos mentis by illness;
c) A
lunatic or a madman &
d) One
who is drunk.
Insanity
Section-84 treats
the expression unsoundness of mind as equal to insanity. Insanity is in two
forms, viz. legal insanity and medical insanity. A court is always concerned
with legal insanity not with medical insanity. In the case 13 CrLJ 164,
temporary insanity caused by one bout of drinking or ganja smoking which is of
such an extremely temporary nature as to pass off a few hours after the
consumption of the liquor or drug, is not even temporary unsoundness of mind,
it is nothing more or less than intoxication and affords no excuse to the
accused unless the intoxication be involuntary.
Drunkenness
“Drunkenness is no
excuse. If a deaf mute has sufficient intelligence to understand the character
of his criminal act, he is liable to be punished” is cited by the judgment of
the case AIR 1947 All 301.
Depression
& mental agitation
The mere fact the
accused was in a state of acute mental agitation, depression or despondency or
that he was for some time before the act extremely moody, taciturn and so on
will not prove that he was suffering from such unsoundness of mind as to make
him incapable of knowing what he was doing or he was doing or that his act was
morally or legally wrong. Hence, in such cases the accused will not be entitled
to protection under this section mere on the proof of facts of the above nature
according to the case AIR 1967 Ker 92.
Burden
of proof
The burden of
proving fact lies upon the accused under section-105 of Evidence Act
1872. The accused have to prove the situation under which circumstances or
state he did this act which is wrong or contrary to law. Through State v.
Balashri Das Sutradhar 13 DLR 89, the court stated that the
prosecution must prove the case without reasonable doubt.
Section-85
Act
of a person incapable of judgment by reason of intoxication caused against his
will
Nothing is an
offence which is done by a person who, at the time of doing it, by reason of
intoxication, incapable of knowing the nature of the act, or that he is doing
what is either wrong, or contarry to law: provided that the thing which
intoxicated him was administered him without his knowledge or against his will.
Section-86
Offence
requiring a particular intent or knowledge committed by one who is intoxicated
In cases where an
act is not an offence unless done with a particular knowledge or intent, a
person who does the act in state of intoxication shall be liable to be dealt
with as if he had the same knowledge as he would have had if he had not been
intoxicated, unless the thing which intoxicated him was administrated to him
without his knowledge or against his will.
Sections
Analysis
Sections- 85 &
86 depicts about the act done by a
person who is in a state of intoxication either willingly or unwillingly.
Here intoxication results into mental instability of a person who
committed an act either wrong or contrary to law.
In explaining the intoxication drunkenness viz., voluntary can be
considered as an example. It can be taken into consideration at least two types
of cases.
1)
In
case Director of Public Prosecutions v. Beard,1920 AC 479 the
court states “Where
specific intent is an essential element of an offence charged and the evidence
shows that the state of intoxication of the accused is such that he is
incapable of forming specific intent essential to constitute a crime.”
2)
Where
habitual drunkenness has resulted in such a diseased condition of the mind that
the accused is incapable of knowing the nature of the act or he is doing what
is either wrong or contrary to law.
A case relating to an intoxication state follows Charna
v. State, 1959 A.L.J. 83,” Voluntary drunkenness is no excuse for the
commission of a crime. But if a man is made drunk through stratagem or the
fraud of others, or through ignorance, or through any other means against his
will, he will be excused.”
On the other hand, section-86 provides a consequence of no exemption
on ground of voluntary intoxication. A person who on his own accord drunk
himself will be deemed to be intoxicated.
Section-87
Act not intended and not known to be likely to cause
death or grievous hurt, done by consent
Nothing which is not intended to
cause death, or grievous hurt, and which is not known by the doer to be likely
to cause death, or grievous hurt, is an offence by reason of any harm which it
may cause, or be intended by the doer to cause, to any person, above eighteen
years of age, who has given consent, whether express or implied, to suffer that
harm; or by reason of any harm which it may be known by the doer to be likely to
cause to any such person who has consented to take the risk of that harm.
Illustration
A and Z agree to fence with each other for amusement. This agreement
implies the consent of each suffer any harm which in the course of such
fencing, may be caused without foul play; and if A, while playing fairly, hurts
Z, A commits no offence.
Section Analysis
An act which cause death or grievous hurt which is done without knowledge and intention but done by
consent will be excused from liability according to section-87 of the Penal
Code 1860. There should fulfill two perquisites before commission the
act.
a)
The
person who is giving the consent should be above 18 years old.
b)
There
must a contract whether express or implied.
Example-
Before commencing on boxing,the players made an agreement which gave him
exemption from any kind of accident occurred at the time of playing boxing
played without criminal intention.
Section 88
Act not intended to cause death, done
by consent in good faith for person’s benefit
Section
88 defines that where the intention is not
to cause death but by any such reason it may cause harm, or it may be
intentionally caused by the doer, or the doer knows that it is likely to cause
harm, to any person for whose benefit it is done in good faith and also
expressly or impliedly the person has given the consent to suffer that harm
will not be considered as an offence.
Illustration
C, a surgeon,
knows that a particular operation may result in the death of W who is suffering
from throat cancer, but there is no intention to cause his death and he does
perform the operation in good faith and for W’s benefit that too with his
consent. Here C has committed no offence.
Section 88
protects Surgeons and surgical operations. Persons not qualified as medical
practitioners cannot claim the benefit of this section as they can hardly
satisfy the court that they had undertaken the operation in good faith as
defined in section 52, for good faith means a conscientious belief that they
had skill to perform the operation, while the supposition is that they were
unskilled and ignorant.
Section
89
Act done in good faith for benefit of child or insane person,
by or by consent of guardian
Section
89 of the Penal Code states that any act
done in good faith or for the benefit of the person who is below the age of
twelve years, or who is of unsound mind by the guardian himself or by any other
person, either expressly or impliedly then it is not an offence even though it
is likely to cause harm to the person.
Provisos-
provided –
First - At this
exception shall not extend to the intentional causing of death, or to the
attempting to cause death.
Secondly- That
this exception shall no extend to the doing of anything which the person doing
it knows to be likely to cause death, for any purpose other than the preventing
death or grievous hurt; or the curing of any grievous diseases or infirmity.
Thirdly- That this
exception shall not extend to the voluntary causing of grievous hurt, or to the
attempting to cause grievous hurt, unless it be for the purpose of preventing
death or grievous hurt or the curing of any grievous diseases or infirmity.
Fourthly- That
this exception shall not extend to the abetment of any offence, to the
committing of which offence it would not extend.
Illustration
A, in good faith,
for his child’s benefit without his child’s consent, has his child cut for the
stone by a surgeon, knowing it to be likely that the operation will cause the child’s
death, but not intending to cause the child’s death. A is within the exception,
inasmuch as his object was the cure of the child.
Relevant
cases:
·
Corporal punishment
inflicted on a schoolboy a by teacher in good faith, in the interest of school
discipline and without exceeding reasonable limits, will be covered by these
sections and the schoolmaster will not be criminally liable for his act in
inflicting the punishment. (AIR 1965 Cat 32).
· Due
care and attention, which are essential for good faith within the meaning of
penal code and this section, imply that the physician or surgeon, who
undertakes to administer medicine or to perform a surgical operation, possesses
a reasonably sufficient knowledge and experience of his business. (AIR 1963
MadhPra 102).
Section
90
Consent known to be given under fear or misconception
Under section
90 of the Penal code, consent obtained by a false representation which
leads to a misconception of facts will not be a valid consent.
Consent
of insane person: if
the consent is given by a person who, from unsoundness of mind, or
intoxication, is unable to understand the nature and consequence of that which
he gives his consent.
Consent
of child: unless
the contrary appears from the context, if the consent is given by a person who
is under twelve years of age
Scope
and applicability of the section-
· Consent
obtained by a false representation which leads to a misconception of facts will
not be a valid consent. Mere submission by one who do not know the nature of
the act done, cannot give consent.
· The
consent of an insane woman is no consent in the eye of law and a person who
subjects such a woman to sexual intercourse even though she apparently consents
to it cannot escape liability for the offence under section 376 of the penal
code.
Relevant
cases:
· Where
the accused, a snake charmer, represented that owing to his power of charming
even the bite of a poisonous snake would do no harm and a person was induced by
such representation to allow himself to be bitten by a poisonous snake and died
in consequence, the snake charmer will be guilty of murder, not only of
culpable homicide not amounting to murder, where he knew that the person who
allowed himself to be bitten by snake did so in consequence of misconception of
fact for which the snake charmer was responsible. (1869) Beng LR(A Cr) 25.
· If
a full-grown girl consents to the act of sexual intercourse on a promise of
marriage and continues to indulge in such activity until she becomes pregnant,
it is an act of promiscuity on her part and not an act induced by misconception
of fact section 90 of the penal code cannot be called in aid in such a case to
pardon the act of the girl and fasten criminal liability on the other. (1983)
2 Cal HN 290.
Section
91
Exclusion of acts which are offences independently of
harm caused
Section
91 – the exceptions in sections 87, 88, and
89 do not extend to acts which are offences independently of any harm which
they may cause, or be intended to cause, or be known to be likely to cause, to
the person giving the consent, or whose behalf the consent is given.
Illustrations
Causing
miscarriage (unless caused in good faith for the purpose of saving the life of
the woman) is an offence independently of any harm which it may cause or
intended to cause to the woman. Therefore, it is not an offence “by reason of
such harm” and the consent of the woman or her guardian to the causing of such
miscarriage does not justify the act.
Relevant cases:
· The
accused, a student, become extremely depressed owing to his repeated failure in
his examination and wanted to put an end to his own life. His wife, who was
equally upset, requested him that he should first kill her and then kill
himself.
· In
accordance with this fact, the husband killed his wife, but was arrested by the
police before he could kill himself. It was held that the wife’s consent was
not given under any misconception of facts and the husband was, therefore, only
guilty of culpable homicide not amounting to murder under section 300 exception
5. (AIR 1958 Pat 190)
Section
92
Act
done in good faith for benefit of a person without consent
Nothing is an offence by
reason of any harm which it may cause to a person for whose benefit it is done
in good faith, even without that person's consent, if the circumstances are
such that it is impossible for that person to signify consent, or if that
person is incapable of giving consent, and has no guardian or other person in
lawful charge of him from whom it is possible to obtain consent in time for the
thing to be done with benefit:
Provided-
Firstly.-That this exception
shall not extend to the intentional causing of death, or the attempting to
cause death;
Secondly.-That this exception shall not extend
to the doing of anything which the person doing it knows to be likely to cause
death, for any purpose other than the preventing of death or grievous hurt, or
the curing of any grievous disease or infirmity;
Thirdly.-That this exception shall not extend
to the voluntary causing of hurt, or to the attempting to cause hurt, for any
purpose other than the preventing of death or hurt;
Fourthly.-That this exception shall not extend
to the abetment of any offence, to the committing of which offence it would not
extend.
Illustrations
(a) Z is thrown from his horse, and is
insensible. A, a surgeon, finds that Z requires to be trepanned. A not
intending Z's death but in good faith for Z's benefit, performs the trepan
before Z recovers his power of judging for himself. A has committed no offence.
(b) Z is carried off by a tiger. A fires at
the tiger knowing it to be likely that the shot may kill Z, but not intending
to kill Z, and in good faith intending Z's benefit. A's ball gives Z a mortal
wound. A has committed no offence.
(c) A, a surgeon, sees a child suffer an accident
which is likely to prove fatal unless an operation be immediately performed.
There is no time to apply to the child's guardian. A performs the operation in
spite of the entreaties of the child, intending, in good faith, the child's
benefit. A has committed no offence.
(d) A is in a house which is on fire, with Z,
a child. People below hold out a blanket. A drops the child from the housetop,
knowing it to be likely that the fall may kill the child, but not intending to
kill the child, and intending, in good faith, the child's benefit. Here even if
the child is killed by the fall, A has committed no offence.
Explanation.-Mere pecuniary benefit is not
benefit within the meaning of sections 88, 89 and 92.
Section 92 of the code deals
with the cases that may be kept in the category of constructive consent, which
means cases, in which, because of the certain urgent circumstances, consent,
is completely dispensed with, but, as ordered by law, the person causing
harm is liberated from his liabilities. The main crux of section 92 lies in
this. If the consent is unobtainable from a person under section 88, or
an incapable person cannot give his consent under section 89 and it is
impossible to gain consent from his lawfully appointed guardian then, the
person desiring to act with a good intention, in a bona fide manner, for the
benefit of other person, may proceed to do so without receiving consent from
the person.
Sec.92 defines as not even a single act or thing is a
crime if such reasons are present:
If any harm caused to
a person for whose benefit it is done in good faith, even without the
person’s consent, and
· Even when the
circumstances were such that it was impossible for that person to signify the
consent, or
· That the person was incapable of giving consent, and
·
Also the person has no
guardian or any other person in lawful charge of him from whom it is possible
to obtain consent in time for the thing to be in benefit.
Section 93
Communication made in good faith
No communication made in good faith is an
offence by reason of any harm to the person to whom it is made, if it is made
for the benefit of that person.
Illustration
A, a surgeon, in good faith, communicates to a patient his opinion that he
cannot live. The patient dies in consequence of the shock. A has committed no
offence, though he knew it to be likely that the communication might cause the
patient's death.
This section gives protection to a person who makes a
communication to another person in good faith for the benefit of that other
person even if the same may cause harm to that other person. Sections 88, 89
and 92, on the other hand, deal with acts done for the benefit of a person. The
burden of proof under section 93 is naturally on the accused to show that the
communication had been made in good faith for the benefit of the person to whom
it was made.
The illustration under this section shows that a surgeon is
not guilty of an offence if he communicates to a patient in good faith for his
benefit that he cannot live. To prove good faith in such a situation may
sometimes be very difficult as the requirements of section 52 of the Code are
to be satisfied and that is why it has been observed that generally medical
doctors are not inclined to make such statements.
Section
94
Act
to which a person is compelled by threats
Except murder, and offences against the State
punishable with death, nothing is an offence which is done by a person who is
compelled to do it by threats, which, at the time of doing it, reasonably cause
the apprehension that instant death to that person will otherwise be the
consequence:
Provided the person doing the act did not of his
own accord, or from a reasonable apprehension of harm to himself short of
instant death, place himself in the situation by which he became subject to
such constraint.
Explanation 1.-A person who, of his own accord, or by reason of a
threat of being beaten, joins a gang of dacoits, knowing their character, is
not entitled to the benefit of this exception, on the ground of his having been
compelled by his associates to do anything that is an offence by law.
Explanation 2.-A person seized by a gang of
dacoits, and forced, by threat of instant death, to do a thing which is an
offence by law; for example, a smith compelled to take his tools and to force
the door of a house for the dacoits to enter and plunder it, is entitled to the
benefit of this exception.
The defence provided under this section is also known as the
defence of compulsion, or of duress, or of coercion. At the outset the section
exempts from its purview the cases of murder and offences against the State
punishable with death. Consequently, this defence is not available where a
murder or an offence against the State punishable by death has been committed
under compulsion.
The section says that except these cases, when something is done
by a person who is compelled to do it by threats, which, at the time of doing
it, causes a reasonable apprehension in the mind of the doer that if he does
not do it instant death to him may result, his act does not amount to an
offence.
The proviso clause under this section states that this defence is
not available where the accused has done the act of his own accord by placing
himself in such a situation by which he became subject to such constraint or
from a reasonable apprehension of harm to himself short of instant death, he
has placed himself in such a situation. The first explanation attached to the
section states that if a person joins a gang of dacoits of his own accord Knowing
their character, or he does so under a threat of being beaten, this defence
will not be available to him.
The second explanation appended to the section
says, on the other hand, that if a person is seized by a gang of dacoits and is
forced under threat of instant death to do something, such as a smith under
such circumstances compelled to take his tools and to force open the door of a
house for the dacoits to enter and plunder it, his act does not amount to a
crime.
The basis of the principle under this section is the famous maxim
‘acts ne invito factus est mens actus’ which means an act which is done
by me against my will is not my act. The defence is not available in murder
cases because of the principle ‘to save one’s own life no one is entitled to
take another’s life’.
Similarly, the defence is not available in cases of offences
against the State punishable with death because of the principle that State has
to protect the interest of the community at large and consequently has a right
to effect its own preservation.
Section 95
Act causing slight harm
Nothing is an
offence by reason that it causes, or that it is intented to cause, or that it
is known to be likely to cause any harm, if that harm, is so slight that no
person of ordinary sense and temper would complain of such harm.
Analysis
of section :
Section 95 says that law will not notice slight harm as an offence
whether done intentionally or unintentionally.
This section is
established under a maxim: de minimis non
curat lex (law does not care about trifles)
To drip a pen in
another man's ink, to take a sheet of paper from another's drawer, causing hurt
to a man by pressing Against him while getting into train, to call a man by bad
names….are too trifle act that they do not deserve the name of crime.
The core intention
of this section is to exempt from criminality of these tiny mischiefs.
If such tiny acts
were punishable all free moment and interaction in society would come to an end
and people would not be able to live together.
PRIVATE DEFENCE
Defending one's
life and property against any kind of offence has been recognised in the legal
system of Bangladesh through the idea of 'private defence' in section 96-106 of
penal code.
Section 96
Things done
in private defence
Section 96 says that no act will be considered as offence if done under
the shelter of private defence.
Private defence is
a right, not privilege that shelters the person from criminal liability of his
act. The penal code does not give any definition of private defence.The
doctrine of private defence is derived from a latin term "se defendendo" which says even
homicide in defence of a man's own life is not felony.
It is expected
that citizens ought to protest against oppression and be the defender Against
any unjust act.But this protest must be reasonable and in a defensive mode.
Conditions and
limits under which right of private defence may be claimed:
● When
someone's right to life is at a threat
● When the same right is claimed by other
members of the society
● When
the state undertakes the responsibility for maintenance of
law.
Where right of
private defence can not be claimed :
●
No right of private defence against lawful
acts (AIR 1963 Orissa 52)
●
When victim gets the opportunity to seek help
from Authority, he cannot take the law into his own hands and if done so,
victim would be the aggressor and no exemption can be claimed under the right
of private defence (AIR 1975 SC 167)
Section 97
Right of private defence of the body and
of property
Every person has a right,
subject to the restrictions contained in section 99, to defend
Firstly.
- his own body, and the body of any other
person against any offence effecting the human body
Secondly.-
The property, whether moveable or
immoveable, of himself or of any other person, againstvany act whichvis an
offence falling under the definition of theft, robbery, mischief or criminal
trespass.
Analysis of section :
Section
97 lays down that
every
person has a right under some limitations in section 99, to defend his own
body, and the body of any other person, against any offence affecting the human
body.
Under section 97, every person in
possession of property, movable or immovable, is entitled to defend his
possession Against anyone who tries to evict him by force or to steal from him
or to do such act which causes injury to that property. Injury of property must
be the consequences of the following offences:
● Theft
● Robbery
● House
breaking by night
● Mischief
Section
98
Right of
private defence against the act of a person of unsound mind, etc
Under Section 98 physical or mental incapacity of the person against whom
the right is exercised is no bar for the purpose of exercising the right of
private defence.
Illustration
(a). Z, under the
influence of madness, attempts to kill A. Z is guilty of no offence. But A has the same right of private defence
which he would have if Z were sane.
(b). A enters by
night a house which he is legally entitled to enter. Z, in good faith, taking A
for a housebreaker, attacks A. Here, Z, by attacking A under this
misconception, commits no offence. But A
has the same right of private defence Against Z, which he would have if Z were
not acting under that misconception.
# The section makes clear that a person does
not lose his right of private defence of property merely because the opponent
is under a misconception.(AIR 1959 ALL 790)
Section 99
Acts against which there is no right private defence
There is no right of private
defence against an act which does not reasonably cause the apprehension of
death or of grievous hurt, if done, or attempted to be done by a public servant
acting in good faith under colour of his office, though that act may not be
strictly justifiable by law.
There is no right of private
defence against an act which does not reasonably cause the apprehension of
death or of grievous hurt, if done, or attempted to be done, by the direction
of a public servant acting in good faith under colour of his office, though
that act may not be strictly justifiable by law.
There is no right of private
defence in cases in which there is time to have recourse to the protection of
the public authorities.
Extent to which the right may be
exercised
The right of private defence in
no case extends to the inflicting of more harm than it is necessary to inflict
for the purpose of defence.
Explanation 1.-A person is not
deprived of the right of private defence against an act done, or attempted to
be done, by a public servant, as such unless he knows, or has reason to
believe, that the person doing the act is such public servant.
Explanation
2.-A person is not deprived of the right of private defence against an act
done, or attempted to be done, by the direction of a public servant, unless he
knows, or has reason to believe, that the person doing the act is acting by
such direction, or unless such person states the authority under which he acts,
or if he has authority in writing, unless he produces such authority, if
demanded.
Right
of private defence arises only against acts which are offences -
The
right of private defence arises only against acts which constitute an offence
except in certain specified circumstances – AIR 1974 SC 496
An
act which may not be one’s liking but is not punishable under the provisions of
the Penal Code will not give rise to a right of private defence – AIR 1948
Ali 205
Private
defence of body-
The
right of private defence of the body comprises not only the right to defend one’s
own body against an offence against the human body but also the right to defend
the body of any other person – AIR 1952 SC 165
In
a case in India where a boy raised a cloud of dust in the street and the
accused, a passerby chastised him by slapping him. It was held that the act of
the boy was causing injury to the body of the passerby and that the accused’s
act in slapping the boy was in exercise of the right of private defence – AIR
1944 Mad 168
Section 100
When the right of private defence of the body extends
to causing death
The right of private defence of
the body extends, under the restrictions mentioned in the last preceding
section, to the voluntary causing of death or of any other harm to the
assailant, if the offence which occasions the exercise of the right be of any
of the descriptions hereinafter enumerated, namely: -
Firstly-Such an assault as may
reasonably cause the apprehension that death will otherwise be the consequence
of such assault;
Secondly-Such an assault as may
reasonably cause the apprehension that grievous hurt will otherwise be the
consequence of such assault;
Thirdly-An assault with the
intention of committing rape;
Fourthly-An assault with the
intention of gratifying unnatural lust;
Fifthly-An assault with the
intention of kidnapping or abducting;
Sixthly-An assault with the
intention of wrongfully confining a person, under circumstances which may
reasonably cause him to apprehend that he will be unable to have recourse to
the public authorities for his release.
Scope of this section
Section 103 is analogous to
section 100 and enumerates certain offences against which the right of private
defense of property extends to the voluntary causing of death to the wrongdoer.
The two sections together make up the complete law of justifiable homicide
according to the Penal Code. These sections speak of offenses which are heinous
in nature or notoriously dangerous.
However if the accused exceeds
his right and kills his assailant though he could have caused lesser injury,
the general exception may not apply. In that event the case is likely to fall
under exception (2) two section 300 of the Penal Code. To claim a right of
private defense extending to voluntary causing of death, the accused must show
that there were circumstances giving rise to reasonable grounds for
apprehending that either death or grievous hurt would be caused to him.
Section 101
When such right extends to causing any harm other than
death
If the offence be not of any of
the descriptions enumerated in the last preceding section, the right of private
defence of the body does not extend to the voluntary causing of death to the
assailant, but does extend, under the restrictions mentioned in section 99 to
the voluntary causing to the assailant of any harm other than death.
Scope of the section-
When dealing with question
relating to the right of private defense of the body, section 100 and 101 must
be read together. Under this section any harm short of death can be inflicted
in exercising the right of private defense in any case which does not fall
within the provisions of the preceding section which deals with the offenses in
which the harm is likely to be very serious and hence justifies the killing of
the assailant.
Section 102
Commencement and continuance of the right of private
defence of the body
The right of private defence of
the body commences as soon as a reasonable apprehension of danger to the body
arises from an attempt or threat to commit the offence though the offence may
not have been committed; and it continues as long as such, apprehension of
danger to the body continues.
Scope of this section
It is clear from the wording of section
102 that the right commences and continues as long as danger to the body lasts.
The extent to which the exercise of the right will be justified will depend not
on the actual danger but on whether there was reasonable apprehension of such
danger. There must be an attempt or threat, and the consequence thereupon and
apprehension of danger, but it should not be a mere idle threat. There must be
a reasonable ground for that apprehension.
Examples
In AIR 1952 SC 165 - where during a communal
ride a mob had actually broken into one part of accused’s house and we're
knocking at his doors and shops had been looted and persons killed in the
adjoining locality, it was held that the threat to break into accused’s house
was implicit in the conduct of the mob, and give rise to the right of private
defense to the accused even though no actual assault was directly made on the
accused.
·
Every person in
possession of property, movable or immovable, is entitled to defend his
possession against anyone who tries to evict him by force or to steal from him
or to do an act which has the effect of causing injury of it. Section 97 of The
Penal Code 1860 lays down that every person has a right to defend the property
whether movable or immovable, of himself or of any other persons, (subject to
the restriction contained in section 99 of this Act.) against any act which is
an offence falling under the definition of theft, robbery mischief or criminal
trespass, or which is an attempt to commit such offence.
Here, again, section 103, 104, and 105 of this Act
discuss about the right and scope of exercising private defence to protect
one’s property.
Section 103
When the right of private
defence of property extends to causing death
The right of
private defence of property extends, under the restrictions mentioned in
section 99, to the voluntary causing of
death or of any other harm to the
wrong-doer, if the offence, the committing of which, or the attempting to
commit which, occasions the exercise of
the right, be an offence of any of the descriptions hereinafter enumerated,
namely:-
Firstly.
– Robbery;
Secondly.-
House-breaking by night;
Thirdly.- Mischief
by fire committed on any building, tent or vessel, which custody or property;
Fourthly.- Theft,
mischief or house-trespass, under such circumstances as may reasonably cause
apprehension that death or grievous hurt will be the consequence, if such right
of private defence is not exercised.
Section
Analysis
·
Sec. 103 is analogous to
section 100 of this Act.
·
According to section 103
of this Act, the right of private defence of protect one’s property extends to
the voluntary cause of death or of any other harm to the wrongdoer in the
following four grounds-
-
Robbery;
-
House-breaking by night;
-
Mischief by fire
committed on any building, tent or vessel, which custody or property;
-
Theft, mischief or
house-trespass, under such circumstances as may reasonably cause apprehension
that death or grievous hurt will be the consequence, if such right of private
defence is not exercised.
·
Only under the above
mentioned circumstances the right of private defence would extend to causing of
death.
·
And where there is no
evidence of justify that there is any reasonably cause for apprehension of
death or grievous hurt by theft, mischief or criminal trespass, the right of
private defence of property shall not extend to causing of death.
Section 104
When such right extends
to causing any harm other than death
If the offence, the committing of which, or the
attempting to commit which, occasions the exercise of the right of private
defence, be theft, mischief, or criminal trespass, not of any of the
descriptions enumerated in the last preceding section, that right does not
extend to the voluntary causing of death, but does extend, subject to the
restrictions mentioned in section 99, to the voluntary causing to the
wrong-doer of any harm other than death.
Section
Analysis
·
Sec. 104 is analogous to
section 101 of this Act.
·
According to this
section, the right of private defence of property extends to causing any harm
other than death if the offence is theft, mischief or criminal trespass but
does not reasonably cause apprehension of death or grievous hurt.
·
Under the above mentioned
circumstance, the right of private defence shall be exercised causing any harm
to the wrong-doer but not to cause death.
·
This section does not
apply to a case where death has been caused in the exercise of the supposed
right of private defence.
Case References
·
Under this section, the
accused are entitled to cause any harm to the wrong-doer other than death (AIR 1965 Orissa 99).
·
Thus where the deceased
was committing criminal trespass on the land which he was ploughing, the act of
shooting at him by the accused could not be said to have been done in exercise
of the right of private defence and therefore the accused would not be liable
for his act to the fullest extent (PLD 1960 Lah 880).
Section 105
Commencement and
continuance of the right of private defence of property
The right of private defence of property commences
when a reasonable apprehension of danger to the property commences.
The right of private defence of property against theft
continues till the offender has effected his retreat with the property or
either the assistance of the public authorities is obtained or the property has
been recovered.
The right of private defence of property against
robbery continues as long as the offender causes or attempts to cause to any
person death or hurt or wrongful restraint or as long as the fear of instant
death or of instant hurt or of instant personal restraint continues.
The right of private defence of property against
criminal trespass or mischief continues as long as the offender continues in
the commission of criminal trespass or mischief.
The right of private defence of property against
house-breaking by night continues as long as the house-trespass which has been
by such house-breaking continues.
Section
Analysis
·
Sec. 105 is analogous to
section 102 of this Act.
·
According to this
section, commencement and continuance of the right of private defence of
property can be described as follows –
-
The right of private
defence of property against theft continues –
i. till
the offender has effected his retreat with property, or
ii. the
assistance of public authorities is obtained, or
iii. the
property has been recovered.
-
The right of private
defence against robbery continues –
i. till
the offender causes or attempts to cause to any person death or hurt or
wrongful restraint, or
ii. till
the fear of instant death or of instant hurt or of instant personal restraint
continues.
-
The right of private
defence against criminal trespass or mischief continues –
i. till
the offender continues in the commission of criminal trespass or mischief.
-
The right of private
defence of property against house-breaking by night continues –
i. till
the house-trespass which has been by such house-breaking continues.
Section 106
Right of private defence
against deadly assault when there is risk of harm to innocent person
If in the
exercise of the right of private defence against an assault which reasonably
causes the apprehension of death the defender be so situated that he cannot
effectually exercise that right without risk of harm to an innocent person, his
right of private defence extends to the running of that risk.
Illustration
A is attacked by a mob who attempt to murder him. He
cannot effectually exercise his right of private defence without firing on the
mob, and he cannot fire without risk of harming young children who are mingled
with the mob. A commits no offence if by so firing he harms any of the
children.
Section
Analysis
·
Section 106 of this Act
empowers a person to exercise his right of private defence with the risk of
harm of an innocent person in the following circumstances –
-
where there is an assault
which reasonably causes the apprehension of death, and
-
the defender is in such a
situation where he can not effectually exercise his right of private defence
without risk of harm to an innocent person.
·
under above mentioned
circumstances a person can make any harm to an innocent while exercising his
right of private defence, and here he shall be deemed to commit no offence.
Case Reference
The right of private defence of the body extends of
the voluntary causing of death of the offence which occasion the exercise of
the right is an assault which may reasonably cause the apprehension of either
death or grievous hurt. The right of private defence is not applicable when
there is no reasonable apprehension of death or grievous hurt. (Khundoker Saiful Islam Vs. State, 50 DLR, AD 126)
General
Conclusion
The law of private
defence is founded on two cardinal principles:
(a) Everyone has the right to defend one’s own
body and property as also to another’s body and property. The law does not
require him to be cowardly;
(b) This right
cannot be used as a pretence for justifying aggression, i.e. for causing harm
to another person nor for inflicting more harm than is necessary to inflict for
the purpose of defence.
• Law allows
resort to repel force forwarding off an injury but not for taking revenge.
• The right of
private defence is not available to one who resorts to retaliation for any past
injury, but to one who is suddenly confronted with the immediate necessity of
averting an impending danger not of his creation.Right of private defence is
designed to serve social purpose.
• When enacting
sections 96 to 106 of the Penal Code excepting from its penal provisions,
certain classes of acts, done in good faith for the purpose of repelling
unlawful aggression, the Legislature clearly intended to arouse and encourage
the manly spirit of self-defence amongst the citizens when faced with grave
danger.
• The law does not
require a law abiding citizen to behave like a coward when confronted with an
immediate unlawful aggression.
There is nothing
more degrading to human spirit than to run away in face of danger. The right of
private defence is thus designed to serve social purpose and deserves to be
fostered within the prescribed limit (1971 SCO 1183).
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