Updated: Jun 1
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About the Author:
Prof.(Dr.) Priya Sepaha
Director, Law Colloquy,
Author, Trainer, blogger, Youtuber
When a person proved with the commission of an offence, and ought to have been punished by law, if he is exempted from such legal punishment under special conditions stipulated in the law, it is known as General Exception. General exceptions have been explained under Sections 76 to 106 of IPC.
SECTION 6 IPC- Every definition of an offence, every penal provision and illustration should be understood subject to the exceptions contained in the Chapter titled “General Exceptions”.
These provisions specify the absence of the element mens rea in the acts of commissions and omissions on the part of the offender of the offence.
The law offers certain defences that exculpate criminal liability. These defences are based on the premise that though the person committed the offence, he cannot be held liable.
BURDEN OF PROOF
According to Section105 of INDIAN EVIDENCE ACT:
When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A.
(b) A, accused of murder, alleges, that by a grave and sudden provocation, he was deprived of the power of self-control. The burden of proof is on A.
Types of exceptions
For committing a wrong, a person must be responsible for doing a wrongful act without having any justification or excuse for it. IPC provides some exceptions as a defence. The defences are generally classified under two heads:-
A justified act is a one which otherwise, under normal conditions, would have been wrongful but the circumstances under which the act was committed to make it tolerable and acceptable.
The person fulfils all the ingredients of the offence but his conduct is held to be right under the circumstances.
An excusable act is the one in which though the person has caused harm, it is held that a person should be excused because he cannot be blamed for the act.
EXCUSABLE ACT – EXCUSABLE GENERAL EXCEPTIONS UNDER INDIAN PENAL CODE
MISTAKE OF FACT (BOUND BY LAW)- SECTION 76
These provisions are based upon the common law maxim “Iqnorantia facti doth excusat; Ignorantia juris non excusat.” (Ignorance of fact is an excuse, but ignorance of the law is not excused.)
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.
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.
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.
ACT DONE BY A PERSON JUSTIFIED, OR BY MISTAKE OF FACT BELIEVING HIMSELF, JUSTIFIED, BY LAW- SECTION 79
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.
In Raj Kapoor v. Laxman, 1980 AIR 605, 1980 SCR (2) 512, the Board of Censors had given a certificate to the petitioner under the Cinematography Act, 1952 permitting public exhibition of a film. On being charged under section 292 of the Code, the petitioner contended that once the certificate permitting public exhibition was given by a competent authority under the Act of 1952 they could not be held liable even if the film is obscene or tending to deprave or corrupt public morals.
´The Supreme Court, agreeing with the contention, held that once the competent authority in good faith issued the necessary certificate, the petitioner producer and other agencies were protected under this section read with section 5-A of the Act of 1952 at least because of their bona fide belief that the certificate is justificatory.
ACCIDENT- SECTION 80
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.
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.
In the State of Orissa v. Khoraghasi, 1978 CrLJ 105 Ori, the accused was a tribal. He went into the forest to hunt the animals. He shot an arrow with a bona fide intention that he aimed at an animal. But the arrow caused the death of a human being. The Orissa Divisional Bench of the High Court acquitted the accused under Section 80.
ACT OF CHILD UNDER SEVEN YEARS OF AGE –SECTION 82
Sections 82 and 83 exempt the wrongful act of the child from criminal liability. “Doli incapax” means “Incapacity of a child”
Presumption of law- Doli Incapax-
A child has no discretion to distinguish right from wrong, thus criminal intention does not arise. Hence the law grants absolute immunity to such an infant from wrongful acts.
Nothing is an offence which is done by a child under seven years of age.
*Act done by a child
*Under seven years of age
*Absolute incapacity for a crime under seven years of age.
ACT OF CHILD ABOVE SEVEN AND UNDER TWELVE A YEARS- SECTION 83
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.
*Act done by a child
*Between 7-12 years of age
*Has no sufficient maturity of understanding
*To judge the nature and consequences of his conduct
Malitia Supplet Aetatem (Malice Supplies Age)-
A child is presumed to be doli incapax (incapable of crimes), but this presumption may be rebutted by evidence of ‘mischievous discretion’ or guilty knowledge that he was doing wrong. If proven to have sufficient maturity of understanding, liability arises.
Heeralal v. State of Bihar, AIR 1977 SC 2236, a child of eleven years quarrelled with the deceased. The child threatened the deceased that he would cut him into pieces. He picked up his knife and actually stabbed the deceased to death. In the prosecution, the defence was pleaded under Section 83.
The trial Court convicted the boy/accused, and held that the boy was not entitled to get the immunity under Section 83 because his words, gesture, assault, keeping a knife in his pocket, stabbing the deceased, etc., showed that the child had attained sufficient maturity of understanding to judge the wrongful act and also the consequences of his act. The Supreme Court upheld the conviction against the accused.
ACT OF AN INSANE PERSON - SECTION 84
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.
*Act done, due to unsoundness of mind-
*no free will-
*born idiot, temporary failure, mad man, unconscious, intoxicated
*Incapable of knowing the nature of the act, or that it is wrong or contrary to law
It is based on Mc Nauqhten's rules. In 1843, the accused Mc Naughten killed Mr Drummond, the private secretary of the British Prime Minister Sir Robert Pel, believing under a mistake that he was killing the Prime Minister. He pleaded insanity and the House of Lords acquitted him of the murder. This generated a lot of public sentiment and debate and the pressure was so much that ultimately the House of Lords had to constitute a special committee of its own judges to finalise the law relating to insanity. Accordingly, some questions were put before a bench of 14 judges in the House of Lords. From the answers are given some rules were framed towards determination 'of criminal responsibility of insane and were called Mc Naughten rules. It states that "in order to establish a defence on the grounds of insanity, it must be clearly proved that at the time of committing the act (or making the omission), the accused was labouring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or if he knew what he was doing, that he did not know it was wrong."
ACT OF AN INTOXICATED PERSON - Section 85, 86
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; provided that the thing which intoxicated him was administered to him without his knowledge or against his will.
The use of the words ‘without the knowledge or against his will’ in the proviso clause of this section indicates that the defence is available when either of the two requirements, that is to say, lack of knowledge or against his will, is proved.
The intoxication is against someone’s will when he is forced or coerced to take the intoxicant, such as where some people by force inject an intoxicant into the body of the accused.
In Mirza Ghani Baig v. State of Andhra Pradesh, 1997- Voluntary drunkenness is no excuse for the commission of a crime.
Section 86 -
In cases where an act was done is not an offence unless done with 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.
It mainly says that when a person who was voluntarily intoxicated will be treated as one who had full control of his mental faculties. He will be treated as a person who commits the offence in the state of intoxication. The section also gives provision that deals with the intention of the concerned intoxicated person having to be committed to the criminal act.
*Act of a person
*Incapable of judgment
*Due to intoxication
*Caused without his knowledge or against his will
In Basdev v. State of Pepsu, 1956, the intoxicated appellant was seated next to a boy during a meal served at a wedding. He asked the boy to move a little too so that he would occupy a more convenient seat. The boy refused. He shot him in the abdomen and killed him on the spot. SC held that so far as attributing knowledge is concerned, the intoxicated man is treated as if he was sober. So far as intention is concerned, it is gathered from the general circumstances of the case and the degree of intoxication.
Justified Act, General exceptions Indian Penal Code
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Judicial action - Section 77, 78
Section 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.
Judge sentencing a prisoner to death, even wrongly.
Section 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.
1. Hangman who hangs the prisoner pursuant to order.
2. Police executing search warrant (Gambling Act) though the warrant is defective in law and illegal.
Absence of Criminal Intend - Section 81-86 & 92-94
Necessity Section 81
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.
This section deals with the defence of necessity.
Quod Necessitas Non Habiet Leegem i.e. necessity knows no law. Breaking the words of law is not breaking the law so long as the intent of the law is not broken.
Act done with the knowledge to cause harm in good faith, without any criminal intention to cause harm, to prevent or avoid harm to person or property, in a sudden and extreme emergency, if two evils are inevitable, direct events so that the smaller one occurs.
It gives legal protection to the doctrine of salvage i.e. self-preservation. Permits a lesser evil to avert a greater evil. It grants immunity to a man with respect to acts committed under compelling circumstances forced necessity.
Conditions to be satisfied are:-
i) The act must have been done without any criminal intention to cause harm;
ii) The act must be done in good faith to prevent or avoid harm to other person or property
iii) Harm is done in order to avert a greater harm. (mother’s life to be saved over a child in the womb.)
A captain of a vessel, without his negligence, finds suddenly a small boat within a short distance and hits it under forced circumstances to save the vessel. Similarly, pulling down a house to prevent a great fire from spreading to other areas.
Conflict in the application of the Doctrine of Necessity (salvage) in two areas –
i) Necessity and homicide
ii) Necessity and Larceny. (stealing bread to avert hunger)
A crime cannot be committed in order to avoid greater harm-
Dudley v. Stephens, 1884- the accused were seamen. Their ship had capsized in a storm they along with a boy, about seventeen years of age, managed to float on a wooden plank.
They continued to drift for many days’ without food and drinking water. When death by starvation of the three was almost imminent, they killed the boy and continued to eat his flesh for a few days when they were rescued.
On being prosecuted for murder, they pleaded that self-preservation was the utmost necessity and they had no option except to kill the boy. Both accused were held guilty of murder and their defence of necessity in the form of self-preservation of life was rejected and they were sentenced to death.
ACT DONE BY CONSENT Section 87-91
Acts done with the consent of the victim which do not amount to an offence. Section -87-89 & 92 say under what conditions consent may be pleaded as a defence to a criminal charge i.e. when the harm caused to the consenting individuals should not be punished in the interest of the community.
Consent is not such a consent as is 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; or
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 to which he gives his consent; or
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.
What is not consent?
*Given under fear of injury or misconception of fact
*Given from unsoundness of mind or intoxication
*Given by person under 12 years of age
ACT DONE BY CONSENT Section -87
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.
These sections extend protection in those cases only where harm is caused in good faith for the benefit of the consenting party. This section is based on the maxim, Volenti Non FIit Injuria , which means 'he who consents cannot complain'.
*Act intended or known, to cause death or grievous hurt, causes harm to the person above 18 years, on consent, to suffer.
* Consenting party should be above 18 years of age.
* Consent may reduce the gravity of the offence or mitigate the rigour of the punishment.
*Consent may be express or implied.
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 gives immunity will not justify causing death or grievous bodily injury or harm likely to cause death, and which is known to the doer. The restriction is absolute and unconditional.
In Ponnei Fatimah’s case (1869), accused Snake charmer persuaded the deceased to be bitten by a poisonous snake inducing him to believe that he had the power to protect from any harm accused could not save the deceased’s consent did not excuse the accused from criminal liability.
Bishamber vs. Roomal – (rape of Harijan girl) Self-constituted Panchayat had the complainant parade through the village with blackened face and gave him a show-beating to save him from the attack of Harijans. Held the action of the accused Panchayat is with the consent of the complainant.
Act not intended to cause death, done by consent in good faith for person’s benefit- Section 88
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.
It grants immunity to persons like doctors from punishments for all acts, done in good faith and for the benefit of the consenting party, which may cause any harm except causing death intentionally.
A surgeon operating on a critical patient with the consent of the patient. In this case, there is no malice or negligence on the part of the doctor and the operation conducted for the benefit of the patient.
Act done in good faith for benefit of child or insane person, by or by consent of guardian- Section 89
Nothing which is done in good faith for the benefit of a person under twelve years.
It authorises guardian or other persons having lawful charge of –
i) child below the age of 12 yrs
ii) a person of unsound mind
who are not competent to give consent in law to consent to inflict harm either himself or by another person, provided,
- it is done in good faith and
- for the benefit of the such minor/person of unsound mind, and
- the act is not either immoral or illegal.
The benefit of Section 89 cannot be claimed in four situations covered under the four provisos -
i) Intentional causing of death or attempt to cause death – Father, in good faith, kills his own daughter from falling into the hands of dacoits, in this case, no immunity will be given since the act is intentional and illegal.
Ii) consent to the doing of anything likely to cause death for a purpose other than prevention of death or grievous hurt.
iii) Causing or attempting to cause grievous hurt except for preventing death or grievous hurt or infirmity. For example, causing grievous hurt to a child under Sec-322 of IPC.
iv) Abetment to the commission of any offence.
Father intending monetary benefit to the child of 15 years, abets B to commit rape on the child. Neither father nor B could be within the exception.
COMMUNICATION MADE IN GOOD FAITH - Section 93
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.
It gives protection to a person from criminal liability for making communication to one which results in harm to him.
To claim this protection:–
i) the communication must be made in good faith, and
ii) It must be made for the benefit of the person.
A doctor communicates in good faith to his patient the gravity of his disease and the probability of his living. The patient died of shock. The doctor is exempted from criminal liability.
DURESS Section 94
Act done under compulsion or threat
Except for 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.
*Act done under compulsion
*Of instant death
i)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.
ii)A person seized by a gang of dacoits, and forced, by the 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.
TRIFLING ACTS, CAUSING SLIGHT HARM- Section 95
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.
This section is based on the maxim, De MIinimis Non Curat Lex i.e. the law will not take care of trifles.
*It intends to prevent penalisation of negligible criminal wrongs or offences of trivial nature.
*Though such acts fall within the letter of the law, they are not punishable within the spirit of the law. Such acts are considered innocent.
-To take a sheet of paper from other’s drawer
-Pressing a man and causing hurt while getting into a railway compartment.
-Calling a person a liar, though it attracts defamation.
RIGHT OF PRIVATE DEFENCE
Nothing is an offence which is done in the exercise of the right of private defence.
Essentials of Private defence-
-Right inherent in man, which is the duty to help himself.
-Right is exercised when there is a real and immediate threat
-If life is threatened by grave danger, need not wait for State aid, unless aid is available
-Right is protective or preventive and not punitive
-Not for self-gratification
-Should not be deliberate or for retaliation of past injury
-Right commences as soon as a reasonable apprehension of danger arises and continues till the apprehension continues
-The protective measures must be proportionate to injury or threat
-The right ends with the necessity for it
-The aggressor cannot claim the right to self-defence
-No private defence against private defence
- One who goes to beat the other cannot claim the right
- Even if the private defence is not claimed, the court may consider the plea based on material on record.
RIGHT OF PRIVATE DEFENCE -Section 97, 98
-Every person has the right
-To defend his own body or
-Of any other person
-Against an offence affecting the human body
- Thus even a stranger may defend the person or property of another person
- To exercise the right, the physical or mental capacity of the attacker is no bar (whether with or without mens rea)
RIGHT OF PRIVATE DEFENCE OF BODY - Section 99
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 the protection of the public authorities.
The 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.
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.
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.
- No right if there is no apprehension of death or grievous hurt
- If done by a public servant under office or if acting under the direction of a public servant
- In good faith
- Even if not strictly justified by the law
-No right if there is time to have recourse to the protection of public authorities
-Right does not extend to inflicting more harm than necessary for the purpose of defence.
Section 100 When right extends to causing death
- Assault causing apprehension of death
- Assault causing apprehension of grievous hurt
- Assault with intention of committing rape
- Assault with intention to gratify unnatural lust
- Assault with intention of kidnapping or abducting
- Assault with intention of wrongfully confining a person
Section 101 In other circumstances the defender may cause any harm except 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.
Section 102 Right commences as soon as a reasonable apprehension of danger to the body arises and continues till the apprehension continues
Section 106 In case of reasonable apprehension of death if the defender cannot exercise the right without risk of harm to an innocent person, he may even run that risk.
If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender is 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.
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—
i)His own body, and the body of any other person, against any offence affecting the human body;
ii) The property, whether movable or immovable, of himself or of any other person, 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 theft, robbery, mischief or criminal trespass.
-Section 105- Commencement and continuance of the right of private defence of property
It fixes the time when the right of private defence of property commences and when it comes to an end.
This right commences as soon as a reasonable apprehension of danger to the property commences and its continuation depends upon the nature of the offence.
It continues, in case of –
i) theft – till the offender retreated, or procurement of assistance of public authorities or till the property is recovered.
ii) robbery – as long as the offender causes or attempts to cause any person death or hurt or instant personal restraint continues.
iii) criminal trespass or mischief – as long as the offender continues in the commission of criminal trespass or mischief.
Iv) House-breaking by night – as long as such house-trespass that began continues.
Section 103- When the right of private defence of property extends to causing death
- The right extends to causing death if
- Robbery - Housebreaking by night
- Mischief by fire to any building, tent or vessel used as a human dwelling or a a place of custody of property
- Theft, mischief or house-trespass under circumstances causing reasonable apprehension of death/grievous hurt
Section 104- When such right extends to causing any harm other than death
In other cases, right extends to any harm other than death
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