This article is written by Mohammad Nazim, a student of B.A. LL.B (Hons.) at Jamia millia Islamia.
One day I and my brother were playing on the roof of my house suddenly by mistake, I pushed him and he fell from the roof and get hurt. I was scared because I know after knew this my mom definitely used to beat me. But my dad intertwined and told me this act done by mistake. At that time I understand some time something happens in our life unconsciously and for that giving punishment is not right. So this is exactly done by our jurist who made laws like IPC. He specially mentions a chapter i.e. chapter 4 (sec. 76 to sec. 106), and we are going to discuss these sections of the Indian Penal Code.
DEFINITION OF CRIME
In IPC there are provision for different crime and their punishment but before looking that we have to understand, what is crime? There is no definition of crime that mentioned in IPC, and this is not possible to define crime in a definition because definition of crime may be deferent for deferent people. But here some definition are given that is given by different jurist and sociologist for general understanding of crime:
- Sir William Blackstone define crime as, “crime is a violation of public laws and duties that affect whole community”
- Hulsbury`s define crime, “An unlawful act or default which is an offence against public and renders the person guilty of the act or default liable to legal punishment”
- Acc. to Salmond , crime is violation of law wich ffect or harm the society.
ESSENCIAL ENGREDIENT OF CRIME
This picture describe a maxim i.e. Actus reus non facit reum nisi mens sit rea. That means a person cannot be guilty of mind unless physical act and mental element both are present. For crime there must be a wrongful omission with guilty mind.
TYPES OF GENERAL EXCEPTION UNDER IPC
THERE ARE KIND OF EXCEPTION I.E.
These exceptions are:
- Mistake of fact (Sec. 76, 79).
- Judicial acts (Sec. 77-78).
- Accident (Sec. 80).
- Absence of criminal intention (Sec. 81-86, 92-94).
- Act done by consent (Sec. 87-91).
- Trifling act (Sec. 95).
- Private defence (Sec. 96-106).
We are going to discuss it one by one
- MISTAKE OF FACT (SEC.76, 79)
‘Ignorentia facti doth excusat ignorentia juris non excusat’ mens ignorance of law is excusable but ignorance of fact is not excusable. Ex
In Grant v. Borg (1982) 1 WLR 638 HL
In this case, the person was charged under the Immigration Act 1971, for staying beyond the time limit by the leave. Here, he cannot apply for the defence i.e. mistake of law.
76. Act done by a person bound, or by mistake of fact believing himself bound, by law.— 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 Z to be Y, arrests Z. A has committed no offence.
79. Act done by a person justified, or by mistake of fact believing himself, justified, by law.— 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.
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 fact, 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.
Cases regard this:
In Chirangi v. the State of M.P., (1952)53 CrLJ 1212 (M.P.)
In this case, a widower holding axe accompanied by his son, went to woods to gather ‘siadi’ leaves. After some time, his nephew discovered that the accused was sleeping under the tree and the child was missing. Later the child was found dead. It was transpired in evidence that the accused at the time being was seized of the state of mind in which he visualized that a tiger was going to attack him as by mistake he killed his son considering his son as the tiger. The court stated that it was a mistake of fact that immunized him from liability. He had no intention to kill his son.
- JUDICIAL ACT
Sec 77. Act of Judge when acting judicially.—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.
For example-if court punish a man for murder on the basis of proofs but after some time on the basis of new evidence it is clear that accused was not guilty in this case accused was not entitled to demand any compensation from court even though he is trebeling due to court judgement.
Sec 78. Act done pursuant to the judgment or order of Court.—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.
Ex. X a policeman has warrant against Z to arrest him. He arrest Y, honestly believing that he is Z. he is not liable for wrongful confinement of Y.
ACCIDENT (SEC. 80)
Sec 80. Accident in doing a lawful act.—Nothing is an offence which is done by 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. In the case of accident it is important to proof that accused is taking all precaution on his side. If A who is minor but very good in driving Car and by mistake without any mistake on his side an Accident happened, in this case A is liable because he is not eligible to drive under motor vehicle act.
A is at work with a hatchet; 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.
ABSENCE OF CRIMINAL INTENTION
Sec 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 be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property.
Explanation.—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.
(a) A, the captain of a steam vessel, suddenly, and without any fault or negligence on his part, finds himself in such a position that, before he can stop his vessel, he must inevitably run down a boat B, with twenty or thirty passengers on board, unless he changes the course of his vessel, and that, by changing his course, he must incur risk of running down a boat C with only two passengers on board, which he may possibly clear. Here, if A alters his course without any intention to run down the 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 be found as a matter of fact that the danger which he intended to avoid was such as to excuse him in incurring the risk of running down C.
Sec 86. Offence requiring a particular intent or knowledge committed by one who is intoxicated.—In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a 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 administered to him without his knowledge or against his will.
Sec 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—
Provisos. First.—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.
(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 not 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 housestop, 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.
Sec 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
Act done by consent
Sec 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.
A and Z agree to fence with each other for amusement. This agreement implies the consent of each to 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.
Sec 91. Exclusion of acts which are offences independently of harm cause.—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 on whose behalf the consent is given.
Causing miscarriage (unless caused in good faith for the purpose of saving the life of the woman) is offence independently of any harm which it may cause or be intended to cause to the woman. Therefore, it is not an offence “by reason of such harm”; and the consent of the woman or of her guardian to the causing of such miscarriage does not justify the act.
Trifling act (Sec. 95)
Sec 95. Act causing slight harm.—Nothing is an offence by reason that it causes, or that it is intended 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.
Sec 96. Things done in private defence.—Nothing is an offence which is done in the exercise of the right of private defence.
Sec 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—
First.—His own body, and the body of any other person, against any offence affecting the human body;
Secondly.—The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the defintion of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.
Sec 98. Right of private defence against the act of a person of unsound mind, etc.—When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence.
(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 house-breaker, 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.
Sec 99. Acts against which there is no right of 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 direction 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 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.
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:—
First.—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.
1[Seventhly.—An act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.]
1. Ins. by Act 13 of 2013, s. 2 (w.e.f. 3-2-2013).
Sec 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.
Sec 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.
Sec 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:—
Secondly.—House-breaking by night;
Thirdly.—Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of 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.
Sec 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.
Sec 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 begun by such house-breaking continues.
Sec 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.
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.
Here we are discussing a lot of exception which is mention in the bare act of Indian penal court the reason behind putting these exceptions are safe those people who are accused of the reason on which he may be intentionally not engaged.