The “general exceptions” contained in Chapter IV (sections 76 to 106) makes an offence a non-offence. The “general exceptions” enacted by IPC are of universal application and for the sake of brevity of expression, instead of repeating in every section that the definition is to be taken subject to the exceptions, the Legislature by section 6 IPC enacted that all the definitions must be regarded as subject to the general exceptions are part of definition of every offence contained in IPC, but the burden to prove their existence lies on the accused. For the purpose of study, these exceptions may be divided into two categories : (i) when a person commits any act which is crime but the person is excepted if he is compelled by the order of law, or by maturity of the actor or he has done that in good faith in consent of the person. (ii) When a person does not have any intention to commit the act but another person compels him to do such in personal defence or to defend his property, is not an offence. In the session we are going to study first category of general exceptions.
(1) GENERAL EXEMPTIONS – MISTAKE OF FACTS AND ACCIDENT
(1.1) MISTAKE OF FACT BELIEVING HIMSELF BOUND BY LAW
Section 76 of IPC 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. The illustration to that section says that if a soldier fires on a mob by the order of his superior officer, in conformity with the commands of the law, he commits no offence.
In a case, where the accused believed in good faith on account of a mistake of fact that he was bound by law to do the act which is alleged to constitute an offence, would arise only if, to the extent relevant in this case, the order or command of the superior officer is not justified or is otherwise unlawful. Since the situation prevailing at the scene of the offence was such as to justify the order given by the Deputy Commissioner of Police to open fire, the respondents can seek the protection of that order and plead in defence that they acted in obedience to that order and therefore they cannot be held guilty of the offence of which they are charged. If the order was justified and is, therefore, lawful, no further question can arise.[1]
Second illustration to the section empowers a police officer who being ordered by court of law to arrest Y, and after due inquiry, believing Z to be Y, arrests Z. The Police officer has committed no offence. Burden of proof lies on the police officer to prove that has arrested Y in good faith.
(1.2) MISTAKE OF FACT BELIEVING HIMSELF JUSTIFIED BY LAW
Section 79 of IPC provides that nothing is an offence which is done by any person who is justified by law, or who 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. The illustration to that section says that ‘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 person 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.
If a certificate is issued by the Censor Board and exhibition begins, the producer etc. get the protection under section 79, which exonerates them is their bona fide belief that certificate is justified, under such circumstances if any suit is filed against them the same is liable to be quashed because of protection available under section 79. An act is justified by law, if it is warranted, validated and blameless by law.[2]
Here two types of mistakes are there – mistake of facts under section 76 and mistake of law under section 79. Mistake of fact is a good defence, while mistake of law is no defence. Basic elements are : (i) the mistake or ignorance must be fact, but not of law; (ii) the mistake of fact must have been arrived at in good faith; (iii) the mistake must be reasonable one; and (iv) If, the mistaken facts were true, the act would not be an offence.
(1.3) ACT OF JUDGE OR ACT DONE IN PURSUANCE OF ORDER OF COURT
Section 77 of IPC says 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. On the other hand, section 78 of IPC says 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.
Both sections 77 and 78, protect the judges and any other officials are working according to the order of the court, are protected. The term ‘judge’ used in these sections has to be interpreted in wider sense, which is prescribed by section 19 of IPC. Section 78 protects the person when he acts in the capacity of judge, whether he has jurisdiction or passed an order in good faith without jurisdiction. In other words, any person who is carrying out an order of a court, which may have no jurisdiction at all, is protected by this section. It is to be noted that mistake of law can be pleaded as defence under this section. The act of a judge while he is acting judicially his act is protected.
(1.4) ACCIDENT IN DOING A LAWFUL ACT
Section 80 protects an act done by accident or misfortunate 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. The illustration to that section says that ‘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.
An accident is not the same as an occurrence, but something that happens out of the normal or ordinary course of things. An effect is said to be accidental when the act is not done with the intention of causing it, and its occurrence as a consequence of such act is not so probable that a person of ordinary prudence ought, under the circumstances in which it is done to take reasonable precautions against it. The idea of something fortuitous and unexpected is involved in the word accident.
The Supreme Court has observed that to claim the benefit of the provisions of section 80, it has to be shown: (1) that the act in question was without any criminal intention or knowledge; (2) that the act was being done in a lawful manner and by lawful means; and (3) that the act was being done with proper care and caution.
The section exempts the doer of an innocent or lawful act in an innocent and lawful manner from any unforeseen result that may ensue from an accident or misfortune. If either of these elements is wanting, the act will not be excused on the ground of accident. The primordial requirement of section 80 is that the act which killed the other person must have been done “with proper care and caution”. The Supreme Court held that where the accused shot his own colleague at close range without knowing the identity of his target, the act smacked of utter dearth of any care and caution.
Where the act of the accused is itself criminal in nature the protection under section 80 is not available. If the accused pleads exception within the meaning of section 80 there is a presumption against him and the burden to rebut the presumption lies on him.
(2) ACT WITHOUT CRIMINAL INTENTION OR MATURITY
Sections 81 to 86 exempt such acts of the person which has been occurred without intention and immaturity of the person to understand the result of the act.
(2.1) ACT DONE WITHOUT CRIMINAL INTENT AND TO PREVENT OTHER HARM
Section 81 of the Code says that nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, it if 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. Illustration to the section says that ‘A’, in great fire, 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 found that the harm to be prevented was of such a nature and so imminent as to excuse A’s act. ‘A’ is not guilty of the offence.
(2.2) ACT OF A CHILD UNDER SEVEN YEARS OF AGE
Section 82 of the Code says that nothing is an offence which is done by a child under seven years of age. It is on the principle that no infant under the age of seven years can be guilty of crime because under that age an infant is presumed to be doli in capax.
It is to be remembered that this section is applicable also in the presence of the Juvenile Justice (Care and Protection of Children) Act, 2000. A child below the age of seven years is not a juvenile in conflict with law but exempted from any criminal liability.
(2.3) IMMATURE UNDERSTANDING OF A CHILD (7-12 YEARS)
Section 83 of IPC says that nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.
It is to be remembered that in the presence of the Juvenile Justice (Care and Protection of Children) Act, 2000, this section do not have any meaning. Because, the system has taken away the child from punitive theory to restorative theory and instead of putting child on trial it inquire that how child can be rehabilitated or reintegrated in the society.
(2.4) ACT OF A PERSON OF UNSOUND MIND
Section 84 says that 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. The basic elements of the section are (i) nature of the act; and (ii) that he is doing what is either wrong or contrary to law.
The doctor had examined accused a little before as also a little after the occurrence and he was found insane. The detailed reasons given by both Doctors have been corroborated by each other. From the evidence also it is clear that he was talking in a very unusual manner saying things to the effect that he had seen Lord Shiva in front of him and the alike. It is appropriate case for benefit of section 84.[3]
The unsoundness of mind before and after the incident is a relevant fact. From the circumstances of the case clearly an inference can be reasonably drawn that the Appellant was under a delusion at the relevant time. The Supreme Court was unable to hold that the crime was committed as a result of an extreme fit of anger. There is a reasonable doubt that at the time of commission of the crime, the Appellant was incapable of knowing the nature of the act by reason of unsoundness of mind and, thus, he is entitled to the benefit of Section 84 IPC.[4]
On the other hand, when there was nothing abnormal in his behaviour, or that his behaviour was queer, cannot be sufficient to attract the application of this section.[5] It is now well-settled that the crucial point of time at which unsoundness of mind should be established is the time when the offence is committed.[6]
Unsoundness of mind and insanity.- Section 84 lays down the legal test of responsibility in cases of alleged unsoundness of mind. The term ‘unsoundness of mind’ is synonymous to insanity. It is a term used to describe varying degrees of mental disorder. So, every person, who is mentally diseased, is not ipso facto exempted from criminal responsibility. A distinction is to be made between legal insanity and medical insanity. A court is concerned with legal insanity, and not with medical insanity.[7]
(2.5) ACT OF AN INTOXICATED PERSON
Section 85 of IPC says that nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law. The thing which intoxicated him was administered to him without his knowledge or against his will.
The proviso is the gist of the section which says voluntary drunkenness is no excuse for commission of a crime. The doer must be intoxicated by any means without his knowledge or administered against his will.
Basic elements of the section are : (i) the accused must have to possess intoxicated mind at the time of doing a criminal act; (ii) by reason of intoxication, he is incapable of knowing the nature of his act; or (iii) absence of knowledge regarding what he was doing was either wrong or contrary to law; and (iv) the thing causing intoxication was administered to him without his knowledge or against his will.
Section 86 says that 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.
The Supreme Court held that the defense of drunkenness can be availed of only when intoxication produces such a condition as the accused loses the requisite intention for the offence. The onus of proof about reason of intoxication due to which the accused had become incapable of having particular knowledge in forming the particular intention is on the accused.[8] Basically, three propositions as regards the scope and ambit of Section 85 IPC are as follows:
(i) The insanity whether produced by drunkenness or otherwise is a defense to the crime charged;
(ii) Evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into account with the other facts proved in order to determine whether or not he had this intent; and
(iii) The evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime and merely establishing that his mind is affected by drink so that he more readily give to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts.
The Supreme Court held that an accused cannot claim that he acted under intoxication when evidence showed that he concealed the weapon of offence and clothes, which concluded that he was capable of understanding the consequences of his acts. In another case, it was held that the accused was under the influence of drink but his mind not so obscured by the drink as to cause incapacity in him to form the requisite intention. If a person uses a weapon which is not dangerous and the attack results in death, a malicious intention cannot be drawn against him even though drunkenness is no excuse.
(3) UNINTENTIONAL ACT DONE WITH CONSENT
(3.1) NOT INTENDED ACT DONE BY CONSENT
Section 87 says that 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’ agrees 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.
It is clear from the example that under this section no one can cause death or grievous hurt after obtaining consent of the person or any other person competent to give consent. In a case, where doctors are performing their duties and exercise an ordinary degree of professional skill and competence, they cannot be held guilty of criminal negligence.[9] Every mishap or misfortune in the hospital or clinic of a doctor is not a gross act of negligence to try him for an offence of culpable negligence. It is now a well settled principle of law that at the stage of quashing of an order taking cognizance, an accused cannot be permitted to use the material which would be available to him only as his defence.[10]
(3.2) ACT DONE WITH CONSENT IN GOOD FAITH FOR PERSON’S BENEFIT
Section 88 of IPC says that nothing which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.
Illustration.- ‘A’, a surgeon, knowing that a particular operation is likely to cause the death of ‘Z’, who suffers under a painful complaint, but not intending to cause Z’s death, and intending in good faith, Z’s benefit performs that operation on ‘Z’, with Z’s consent. ‘A’ has committed no offence.
This section extend to all the acts except those committed with knowledge. But, act under this section should be done in good faith and with consent of the person having interest and capable to give the consent.
(3.3) ACT DONE IN GOOD FAITH FOR BENEFIT OF CHILD OR INSANE PERSON BY CONSENT OF GUARDIAN
Section 89 of the Code says that nothing which is done in good faith for the benefit of a person under 12 years of age, or of unsound mind, by or by consent, either express or implied, of the guardian or other person having lawful charge of that person, is an offence by reason of any harm which it may cause, or be intended by the doer to cause or be known by the doer to be likely to cause to that person.
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.
The person who is operating must have legal qualification to operate the child. Only medical registered practitioners are entitled for this benefit, not the Quacks.
(3.4) MEANING OF CONSENT
According to section 90, consent known to be given under fear or misconception is not consent. It says that a consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.
This definition does not clarify the meaning or definition of the consent but says that any consent, which is taken in fear or threat or coerced, will not treated as consent. Still, it talks about three kinds of consents, namely –
(i) consent is given by a person under fear of injury, or under a misconception of fact.
(ii) consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent.
(ii) unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.
Exclusion of acts which are offences independently of harm caused.- According to 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 on whose behalf the consent is given.
Illustration.- 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 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.
(4) ACT DONE IN GOOD FAITH
(4.1) ACT DONE IN GOOD FAITH FOR BENEFIT OF A PERSON WITHOUT CONSENT
According to section 92, 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:
To avail this exception, four conditions has to be fulfilled –
(i) That this exception shall not extend to the intentional causing of death, or the attempting to cause death;
(ii) 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;
(iii) 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;
(iv) That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend.
Illustration.- 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.
(4.2) COMMUNICATION MADE IN GOOD FAITH
Section 93 says that 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.
(4.3) ACT TO WHICH A PERSON IS COMPELLED BY THREATS
Section 94 says that 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.
(4.4) ACT CAUSING SLIGHT HARM
Section 95 of IPC says that 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.
The Supreme Court held that section 95 was intended to prevent penalisation of negligible wrong or of offences of trivial nature whether an act which amounts to offence is trivial or not depends on nature of injury and other related circumstances evidences prove injury of appellant was so slight that person of ordinary sense may not complain for such harm.[11] Section 95 is a general exception, and if that expression has in many other sections dealing with the general exceptions a wide connotation as inclusive of physical injury, there is no reason to suppose that the Legislature intended to use the expression ‘harm’ in section 95 in a restricted sense. Therefore, the expression ‘harm’ under section 95 includes physical injury.
The degree of damage done sometimes depends upon the status of an individual. For example where a government servant on strike put a garland of shoes around the neck of an officer, he was held to guilty of the offence under section 504.
(4.5) ACT OF PRIVATE DEFENCE
According to sections 96 to 106 of IPC, any act, which is done in exceeding of private defence of person or property is a defence as general exceptions. This portion we are going to discuss in the next session.
SPECIAL NOTE FOR POLICE :
F Police should not file a case against any child below the age of seven years for any offence.
F When police received a complaint against a child below the age of eighteen years, they have to hand over the juvenile to Special Juvenile Police Unit, who shall produce the child before Juvenile Justice Board under JJ Act.
F A person should not be registered for causing slight harm.
F Police has to follow legal command of the senior, even it harms others, such act is not an offence.
* * * * *
[1] State of West Bengal v. Shew Mangal Singh, AIR 1981 SC 1917 : (1981) 4 SCC 2.
[2] Raj Kapoor v. Laxman, AIR 1980 SC 605 : (1980) 2 SCC 175.
[3] State of Punjab v. Mohinder Singh, (1983) 2 SCC 274.
[4] Shrikant Anandrao Bhosale v. State of Maharashtra, (2002) 7 SCC 748.
[5] Bapu alias Gujraj Singh v. State of Rajasthan, (2007) 8 SCC 66.
[6] Ratan Lal v. State of Madhya Pradesh, 1970 (3) SCC 533.
[7] Hari Singh Gond v. State of Madhya Pradesh, (2008) 16 SCC 109 : AIR 2009 SC 31.
[8] Bablu @ Mubarik Hussain v. State of Rajasthan, AIR 2007 SC 697: (2007) 2 SCC (Cri) 590
[9] Kusum Sharma v. Batra Hospital and Medical Research Centre, AIR 2010 SC 1052 : (2010) 3 SCC 480.
[10] B. Jagdish v. State of A.P., (2009) 1 SCC 681.
[11] Veeda Menezes v. Yusuf Khan, AIR 1966 SC 1773.