By Adv. Apurva Chodankar
In criminal law, there are several punishments that differ from case to case. In a particular situation, any person will be punished for the crime that he/she commits. Mens rea and Actus rea are important in the penal code as intention and commission of any act are two essential ingredients. So, in any particular situation, any person should be able to prove himself not guilty or prove himself under any one of the exceptions. Indian Penal Code,1860 recognizes defense in Chapter IV under General Exceptions from Section 76 to Section 106 of the Indian Penal Code. These sections cover the defenses to whether a person is liable for the offense they committed. Section 6 of the Indian Penal Code proclaims that the offenses should be read with subject to general exceptions and Section 105 of the Indian Evidence Act mentions the burden of proof will lie on the accused to prove under the general exceptions.
General Exceptions under Indian Penal Code
Chapter IV Section 76 to 106 lays down exceptions that are also known as General Defences.
Mistake of Fact and Mistake of Law
Mistake of fact is based on the maxim “ignorantia facti doth excusat and ignorantia juris non-excusat” which means ignorance of facts can be excused but ignorance of the law cannot be.
Defence under mistake can only be taken when Two conditions are fulfilled
- There is a reasonable mistake
- Mistakes should be related to fact and not law.
*It is noticed that section 76 and section 79 of the Indian penal code are clubbed together by many scholars.
Act Done by Person Bound by Law (Sec.76)
When we talk about mistakes of fact it is to be taken into consideration that mistakes of fact must be rational/ realistic and that there should not be any mistake of law. In criminal jurisprudence mens rea plays an important role, the intention while committing a crime or offense is the key ingredient, so we can say that there shouldn’t be malafide intention involved. Any act done in good faith must be valid in the eyes of law.
Illustration – If a police officer is firing at the mob by the order of his officer, he cannot be held liable.
Act of judge when acting authoritatively (Sec.77)
Nothing is an offense done by the judge when he is in judicial capacity or any act done in good faith, he is believed to have the power that is vested in him by the law. This section gives immunity and protection to the judges acting in a judicial capacity.
Act done according to the judgment or order of the court (Sec.78)
Any act that is done in the course of discharge of his duty while giving the order, judgment, or any other order will not be an offense.
Act done by a Person Justified Himself (Sec.79)
This section gives protection for the act done when the authorized court has no jurisdiction. It is believed that such an act was done in good faith.
Illustration – In a situation where Ashwin thought that Manushi is murdered in a case and in good faith and justified by law, Ashwin seizes Manushi so that he can be produced before the authority. Ashwin has not committed any offense.
Any act that is done by any person without the intention of hurting /harming them is exempted. It means when an accident or an unfortunate incident takes place without criminal intention or lawful act which is done or carried out taking all the precaution and care.
In order to take the benefit, the accused will have to take the defense of the accident to prove to the court. The following ingredients are needed to prove himself discharged.
- The act was unexpected or misfortune that it happened
- There is no criminal intent
- The act happened while performing a lawful act
- The act was done while taking due care and caution
- Causing harm will not make him/her avail of this defense.
Medical negligence under criminal law is that the act must be done by a medical practitioner. A medical practitioner is held liable if it has to be proved that he was not his sense and no prudent person would have done such an act in given circumstances.
Medical practitioners cannot be held liable unless there is proof and evidence that there is the degree of damage or loss is high which almost amounts to culpable.
Absence of Criminal Intent (Sec.81)
Any act that is done intentionally without the intent to hurt or cause harm to the other person or property. The question that is often raised is the extent of the nature of harm prevented.
Types of Necessity
- Public Necessity – Deals with collective action by the public authority or private individual that will prevent the public crisis.
- Private Necessity – When there is the self-interest of an individual rather than the community.
The Defense of necessity is based on the following principles:
- Jus Necessitas- justification of necessity
- Quad Necessitas Non-Habet Legam- necessity knows no law
- Necessitas Vincit Legam- necessity overcomes the law
To take the defense of necessity following essentials should be satisfied:
- Knowledge of harm must exist without criminal intent.
- Harm should be done to protect life and property
- The act must be done in good faith and without any mala-fide intention.
Act of Child (Sec.82)
Any act that is done by a child up to 7 years of age is not considered as an offense and he qualifies to take benefit of the.
Act of a Child between the age above 7 and under 12 (Sec. 83)
A child between the ages group of 7-12 does not attain maturity to decide the nature and the consequences of the act he does. He too is qualified for the advantages of these exceptions. The term referred to or used is “immune from liability”.
Insanity is an exception for those persons who are of unsound mind and incapable of the consequences of the act when the act was done. Such persons are not capable and aware that the acts which are done by them are unlawful.
To avail the defense under section 84 the following essentials must be satisfied:
- Accused must be of unsound mind when the crime was committed
- Absence of motive in the crime
- The accused is not aware of the consequences due to mental incapability.
Intoxication (Sec. 85)
It means that a person is intoxicated when he is not in his full sense of knowing the nature of the act that he is doing. This exception can be availed when the accused proves that he was intoxicated without his knowledge or forcefully against his wish only then this exception can be taken.
Offenses that are required to have a particular intention or knowledge by the one who is intoxicated (Sec. 86)
Act not intended to cause death, done by consent in good faith for personal benefit (Sec.88)
Act done for the child with the consent of his/her guardian(Sec.89)
Any act is done in good faith in the interest of a child or insane person by the consent of the guardian. Under this section, it is to be noted that anything that is done in good faith for the benefit of the person under 12 years of age,
- unsound mind,
- either express or implied,
- guardian or any other person having lawful charge of that person,
Is an offense by reason to cause harm, intended by the doer to cause harm.
Essentials of consent in case of taking defense under sections 87, 88, and 89:
- Consent is given by the person at risk
- Below the age of 12 years for a child. If the consent was obtained by the guardian of the child for the benefit of the child.
- Persons of sound mind
- Consent to be express/implied
- Consent was not intended to cause hurt or death
- Consent was given under the impression of fear of injury
Consent given in fear or misconception (Sec. 90)
There are four points that constitute consent under section 90 of the Indian penal code. They are consent-
- given by a person in fear
- given under misunderstanding of fact
- given by an insane person
- given by a child under the age of 12 years.
Consent given by an unsound mind or intoxicated is not considered valid because they are not able to perceive/acknowledge the nature and the consequences of their consent which they give. Consent given by a child is not valid consent as he may be influenced by some other person. He doesn’t know whether he is doing it right or wrong.
Offences independently of Harm caused (Sec.91)
Sections 87, 88, and 89 do not include the acts that are independent offenses that have caused harm, intended to cause, or person giving such consent or on whose behalf the consent was given.
Act done in Good Faith for benefit of a person without consent (Sec. 92)
Any act that is done in good faith for the personal benefit of his/her shall not be considered as an offense just because there was no consent obtained.
Any communication that is made in good faith is not an offense in any reason to harm a person for the benefit of such person. This may also include any relevant information of the person, for example, the relation that a doctor and a patient have. For Example – In certain situations, the doctor has to communicate the health issues to his patient in good faith.
Act done under force of threats by person (Sec. 94)
Any act or illegal activity that is done by a person under the influence of his own life threat or instant death. Further, it means that the person realizes that he is committing an offense but still he has to continue, he does it without his will or consent.
Illustration – A bank manager at gunpoint will open the locker and give away the money which belongs to the public.
Act causing slight harm (Sec. 95)
This is explained in the maxim “de minimis non- curat lex” which means that the law is not concerned about trifles. This section gives immunity to the person that commits trivial action. This section means that any normal person will not grumble at the harm caused, will not be an offense.
Illustration – If two people are having a fight and one of them flings a book to another, the latter cannot complain that he/ she is injured.
Private defence (Sec. 96)
The constitution has given its citizens various rights so the Indian Penal Code lays down provisions in situations where we can take the defense under the remedies of private defence.
The following immunity is to be claimed:
- As per the code, any act that is done to protect any person or property can take shelter of private defence. (Sec.97)
- In case of unsound mind, intoxicated, or infancy of the accused private defence rights can be used. (Sec.98)
- These rights have certain restrictions in the case of public servants. If any person is a public servant and he/she is on duty, or any subordinate or any person under his direction is found to commit any crime then he cannot take this defence.
- Private defence can be aided in circumstances that extend to causing the death of the accused can be caused. (Sec.100)
- Fear of death
- Fear of grievous hurt
- Fear of rape
- Fear of assault
- Fear of kidnapping or abducting
- Fear of wrongful confinement
- Fear of acid attack.
The circumstances where there is a threat other than hurt or death can be caused. The private defence rights will arise at the time there is a sudden danger to the person or property. It will begin and continue till the time when such danger or threat exists and when such danger or threat ends the private defence right cannot be availed or exercised.
- If any offense is not as described in sec.100 and any harm is caused then the private defence cannot be taken except certain restrictions laid down under Section 99. (Sec. 101)
Right of private Defence of the body(Sec.102)
When any person realizes that there is an immediate danger or threat that might be committed, but still the offense may not have been committed the right of private defence will start and will continue till such time when such person realizes the danger to the body continues.
Self-Defence for Protecting Property (Sec. 103)
Under the following circumstance when the death of one is caused: –
- Robbery or robbery with sudden death
- Grievous hurt
- Housebreaking at night
- Wrongful confinement
- Criminal confinement
- Theft with imminent danger
- Mischief by fire committed to concert premises, house, sailing boat used by humans to reside.
In case an innocent person has been harmed then also the right of private defence can be exercised.
When such a right extends to causing harm other than death. (Sec.104)
Right of private defence of property as to when it will start and come to end (Sec.105)
- The private defence rights of the private property will start when there is a reasonable realization of danger to the property.
- Help sort from public authority
- Property has been taken back
- The right of public defence of property will continue in case of robbery as long as the offense caused to any person or hurt or wrongful stop a person,
- Threat of death, hurt and personal restraint.
In circumstances where there is criminal trespass or mischief will continue till the offence is with the intent of criminal trespass or mischief, so any person who does an act or trespass with criminal intent cannot avail the rights under exceptions.
Right of private defence, when there is a risk of harm to uninvolved person (Sec.106)
This right can be availed when, in any particular situation if there is an assault with the reasonable cause which causes the death of a person then, the defender cannot avail the right without the risk to harm an uninvolved person. The defender has to face the consequences of such a situation where the harm is caused to the innocent person, in such a situation it is on the defender to take the risk of taking the defence of private rights.
In my opinion, if the accused is guilty of any offense, then he/she should be punished with the prescribed punishment as per the code, in the penal code mens rea and human conduct are essential ingredients to constitute a crime. In certain situations, a person must have not committed a crime or an offense. We do not know if these rights are misused by the citizens. When the situation or the circumstances are genuine ones can take advantage of the general exceptions. These exceptions are to be used when there is an imminent danger of attack. It becomes difficult for the court to come to a conclusion whether these rights have been used in good faith or not.