General
Exceptions
The Penal Code, 1860 is the main criminal code of Bangladesh.
It is based on the penal code of the British Indian Empire enacted in 1860 by
the Governor General-in-Council in the Bengal Presidency. It mainly refers to
that “Mother Law” where all the provisions concerning crimes and their
punishments are codified.
In “The Penal Code 1860”, chapter 3 (section 53 -75)
discusses the provisions of types of punishments. Chapter 4, containing section
76-106 discusses the “General Exceptions” rule. It refers to situation when a
conduct of a person may seem a criminal offense but if that action falls under
this chapter, it will reduce its criminality or might exempt from getting
punished at all.
There are some information that needs to be addressed while
studying this chapter. They are stated below.
•
Offence-
it denotes a thing punishable under the Code or under any special or local law
when it satisfies the conditions laid down in section 40 of the Code.
•
Mistake
of Fact- ‘Mistake’ is not mere forgetfulness. It is a slip “made not by
design, but by mischance”. At common law an honest and reasonable belief in the
existence of circumstances, which if true, would make the act for which a
prisoner is indicted an innocent act has always been held to be a good defense.
In simple terms, it means a circumstance which was initially ‘thought’ to be
one thing but turned out to be another.
•
Mistake
of Law- it means mistake to the existence or otherwise of any law on a
relevant subject as well as mistake as to what the law is. It is no excuse to
any court of justice that, at this day and age a person would make a mistake of
law. All are bound to know the law of a particular land or the nation. In
simple terms, if a person says in his defense that, he/she didn’t know the law
about the particular occurrence, that incident is called mistake of law.
•
Onus of
proving exception- when a person is accused of any offence, the burden of
proving the existence of circumstances that would make his action come under
the provisions of the general exceptions chapter, depends on him.
•
Minors
Exemption - Mens rea (guilty
intention) or knowledge is an essential ingredient of a crime. Without men's
rea or criminal knowledge, no crime may be committed. Foe that reasons the law
exempt the minors (of particular Age) from criminal liability.
•
“Unsoundness
of Mind” and “insanity”- There is no definition of "unsoundness of
mind" in the Code. The Court have, however, mainly treated this expression
as equivalent to insanity. But the term ''insanity" itself has no precise
definition. It's a term used to describe varying degrees of mental disorder.
So, every person who is mentally diseased, is not ipso facto exempted from
criminal liability. There are four kinds of persons who may be said to be not
of sound mind: -
1.
An idiot,
2.
One made non compos by illness,
3.
A lunatic,
4.
One who is drunk.
•
Intoxication-
Intoxication is a state of mind in which a person loses self-control and his
ability to judge. Intoxication is a defense available to a person charged
criminally on the basis that, because of the intoxication, the accused did not
understand the nature of his/her actions or know what he/she was doing. The
defense of intoxication typically depends on whether the intoxication was
voluntary or involuntary and what level of intent is required by the criminal
charge. (For better understanding,
section 85 and 86 which both deals with intoxication will be discussed as a
merged explanation)
•
Harm:
Trivial acts generally mean
“lack of seriousness or importance” in the ordinary sense. It propounds that
the law should not consider trivial or trifle matters. The
term ‘harm’ is not defined under the provisions of IPC. However, it is
interpreted in various parts of IPC as hurt, loss, injury, disability etc. It
can be physical harm or mental harm to an individual. The term ‘harm’ used
under the provision of Section 95 of IPC has wide-ranging connotations.
Therefore,
the harm caused to a person is so slight in nature that no person of ordinary
prudence would complain about it before the police or the court of law. For
example, no man can pass through a crowd without dashing against somebody or
without treading on somebody’s toes and hence, no man of reasonable sense would
complain of such small annoyance caused to him.
There are many types of acts that
are discussed in this chapter. However, the actions can be categorized under 7
heads.
They are-
1.
Judicial acts (section 77, 78)
2.
Mistake of Facts (section 76,79)
3.
Accident (section 80)
4.
Absence of criminal intent (section 81-86, 92-94)
5.
Consent (section 87,90)
6.
Trifling acts (section 95)
7.
Private defense (section 96-106)
Although the onus of proving the general exceptions lies on the
accused person, that does not mean the accused must lead evidence. If it is
apparent from the evidence on the record, whether produced by the prosecution
or by the defense, that a general exception would apply, then the presumption
is removed and it is open to the Court to consider whether the evidence proves
to its satisfaction that the accused comes within the exception or not.
•
Section 76:
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 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 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.
Analysis:
This section indicates a situation where a person, may
that be commanded by a proper authority or not, felt that he was bound to do an
act which might prove to be an offence later on, but he is protected as he had
done the act on the basis of the then present circumstances and good faith
provided by section 52 of the Code. A soldier might get complete protection
under section 132 of the Code of Criminal procedure but not under this section
because, the mere fact that he had to obey the law is not accurate all the
time.
It is a matter to consider that, while happening the
situation there must be no mens rae
present in the person committing the crime and also he had a bona fide intention while doing so. It would simply be a mistake of fact, but not of
law. If the facts are correctly assessed by the evidence that everything was
done in good faith, the accused might get relieved from the acquisition. In
this situation, the maxim respodeant
superior does not apply because at the situation, the officer carrying the
order has the ability to judge the situation. Case:
Chaman Lal (1940)
In this case, it was shown stated that, a superior officer
gave an order to kill innocent bystander and fire on people who gathered on
lawful purposes. This situation does not let the acting police officers get
indemnity from their actions under the section. Gopali
Kallaiya (1923)
In this case, police made inquiry and arrested a person
under reasonable suspicion that he had fit under the description of the
warrant. But later found to be wrong. When the man file complaint, the court
said their action to be not guilty as they acted within their power and with
good faith.
•
Section 77:
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. Analysis:
This section gives the judges indemnity from, not only the
works he in empowered by the law, but also to those situations where, he acts
in good faith to provide justice even if it does not fit his jurisdiction. If
any kind of malicious intentions are found in his actions, it will be
investigated elsewhere and due actions will be taken. However, although not
absolute, the judges actions are well protected by the Judicial Officers’
Protections Act.
➢ Which are judicial acts:
1.
A magistrate passing order under section 133 of the
Code of Criminal Procedure.
2.
An order to bring a person before the court to be there
dealt with on a criminal charge.
3.
An order under section 517 of the Code of Criminal
procedure, 1898 ordering delivery of a stolen property to a certain person. It
is covered by Judicial Officers’ Protection Act.
4.
Directing a general search in view of an enquiry under
the Code of Criminal Procedure.
➢ Which are beyond jurisdictions:
This is to say, any kind of actions that are done in bona fide intention to the certain
limits the magistrate thinks fit.
When not applicable:
There are 2 situations when a magistrate will not get
protection under this section. They are:
1.
If he wrongfully refuses a bail of any person and an
malicious intention is detected in his actions.
2.
If he delays the time period of an under-trial prisoner
illegally, then he is bound to pay damages and not get protection under
Judicial Officers’ Protection Act.
•
Section 78:
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.
Analysis:
This section is a corollary to the section 77 the Code. In
section 77 gives protection to the judges who exercised their power with good
faith. In this section, the persons authorized under the judgment or decree or
order of a judge or magistrate are excused from any criminal liability.
•
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 act, seizes
Z, in order to bring Z before the proper authorities. A has committed no
offence, though it may turn out that Z was acting in self-defense.
Analysis:
This section is almost similar to the section 76 of the
code with one key word being the difference. It is “justified”. In section 76,
it is stated that, an officer or soldier is ‘bound’ to take action and, in this
section, it is said to be ‘justified’ to take the action.
This section provides
protection to an officer from “conviction” of a criminal activity. Section 132
of the Code of Criminal Procedure offers protection from “trial” to an
officer.
Case:
Bhawoo Jivaji vs Mulji Dayal (1888)
In this case, the defendant saw the prosecution early in
the morning with 3 pieces of cloth and under reasonable suspicion, the police
officer went and made enquiry. However, under bona fide intention, he arrested the prosecution and later he was
dismissed. On the complaint, the court held that, the police officer had done
no wrong because, under the circumstances, the officer thought his actions were
justified to suspect and do enquiry which was well within his powers.
Comparison of section 76 and 79:
The 2 sections are almost quite similar. Just 2 of the key
words that are different that, “bound to” and “justified to”. In the first
section, there might be presence of an order of a higher authority but in the
later, there might not be. In section 76, it nis mostly seen to be done by
police officer or a soldier, but under section 79, even a normal person can be
seemed to do the offence and get protection.
• 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.
Analysis:
This section exempts the accused and makes him innocent on
lawful act in a lawful and innocent manner and without any criminal intention
or knowledge from any unforeseen evil result that may ensue from any accident
or misfortune.
Law does not intend to punish a man of the things which be
could possibly have no control. With this defense a man can escape criminal
liability where such act of a person occurs as a result of accident.
The accused seeking the benefit of this section has to
prove that he is entitled to it, otherwise there is a
presumption against him that he is not entitled to this
exception. Shankar Narayan Bhadolkar v.
State of Maharashtra, AIR 2004 SC 1966 Essential ingredients:
The following things are essential to get shelter under
this section:
1.
Act done by accident or misfortune
2.
Without criminal intention
3.
Lawful act
4.
Lawful manner
5.
Lawful means
6.
Proper care and caution
These conditions are to be proved by the accused if he
wishes to be protected under this section.[Jalal
Din v. Crown (1953)5 DIR (w.p)58]
•
Act done
by accident or misfortune:
An effect is said to be accidental when the act by which it
is caused is not done with the intention of causing it, and after 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 caution against it.
Case:
R v. Clarke (1972) 1 AIL ER 219
A woman was charged with theft from a supermarket. Her
defense was that she had taken the good in a state of absent-mindness resulting
from depression. Accepting medical evidence, her mental condition and her
conduct in her house, her defense was accepted.
•
Without
criminal intention:
To constitute and act of crime, it must, in case of certain
statutory crimes, be accompanied by a criminal intention or mens rea. The intention may be expressed or implied. It is
expressed if the result is expected by the accused. It will be implied or
presumed if the resulting situation is the natural and probable consequence of
his act for, every person is presumed to intend the natural and probable
consequences of his act. [ AIR 1965
Punj. 291]
•
Doing a
Lawful act in a lawful manner by lawful means:
If a blow is aimed at an individual unlawfully and it
strikes another and kills him, the accused cannot escape under this section.
Case:
Jogeshwar v. Emperor (24 Cri. Lj 789)
An accused was giving fist blow to the victim but
accidentally hit his wife who was holding her 2-monthold child. The blow hit
the head of the child which resulted in its death.it was held that even though
the child was hit by accident, the act was not lawful and it was also not done
in a lawful manner or any lawful means.
•
Proper
care and caution:
The supreme court of India observed on the facts of a case
before it that
“The primordial requirement of the exception is that the
act which killed the other person should have done ‘proper care and caution’….” [ Bhupendra Singh A Chudasama v. state of
Gujrat, AIR 1997 SC 3790, at p. 3792: 1998 Cr Lj 57]
Case;
Shankar Narayan Bhadolkar v. State of
Maharashtra, AIR 2004 SC 1966
The accused picked up its gun, unlocked it, loaded it with
cartridges, aimed at the chest of the victim from a close range of 4 to 5 feet
and shoot it. Quiet naturally this section was held not to be applicable. There
could be no suggestion of accident.
•
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.
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.
(b)
A, is in a great fire, pulls down houses in order to
prevent the conflagration from spreading. He does this with 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.
Analysis:
Every offence under the code virtually imports the idea of
criminal intent. Mens rae is
essential for every criminal action except in these cases:
a.
Cases not criminal in any real sense but which in
the public interest are prohibited under a penalty, that is
Revenue act
b.
Public nuisances
c.
Cases criminal in form but which are really only a
summary mode of enforcing civil right. An intention to offend against the penal
provisions of an Act constitute mens rae.
The intention and act must both concur to constitute the
crime.
Conditions to claim exemption:
This section provides 3 conditions to claim protection.
They are:
1.
The act must have been committed to avoid another harm.
2.
The harm to be avoided must be such as to justify the
risk of doing an act likely to cause harm 3. The act
must have been committed in good faith without any criminal intention to cause
harm.
Principles:
The principle upon which this section is based is that
when, on a sudden and extreme emergency on of the wither of two evils is
inevitable, it is lawful so to direct events that the smaller should occur. In
other words, this section permits infliction of a lessen evil in order to avert
a greater evil.
Application:
The applicability of this section depends on these
conditions:
1.
The presence of the particular motive specifies in this
section viz. preventing or avoiding of other harm to person or property
2.
The existence of good faith
3.
The absence of criminal intention
Case:
Reg v. Dhania Daji (1868)5 B. HC 59
A person placed poison in his toddy pots knowing that if
taken by a human being it would cause injury but with the intent of thereby
defecting an unknown thief who was in the habit of stealing toddy and the toddy
was drunk by and injured some solders who purchased it from an unknown vendor,
it was held that the person was rightly convicted under section 328 for causing
hurt by means of poison, etc. that section 81 was no defense.
Dudley and Stephens (1884) 14 Q.B.D
273
Three shipwrecked sailors in a boat where without food for
7 days and killed the third, a boy and fed on his flesh under such
circumstances that, unless they had done the act, all three would have died. It
was held that they were guilty of murder. Necessity of survival is no defense
of murder.
(1824) 171 ER 1213
If a man drives a cart at a usually rapid pace, whereby a
person is killed, even though the man driving calls out loud and repeatedly to
let the man get out of the way and for any reason the man cannot and die, the
person driving is guilty of man-slaughter.
The police officers were guilty of the offense of wrongful
confinement for disarming and restraining a drunken man carrying a revolver in
his hand. Though the offence of public nuisance was a non-cognizable offence
without a warrant, it was held that they can plead justification under this defense.
In this case the Madras High court held that the person or property to be
protected may be person on property of the accused himself or of others. The
word “Harm” in this section means ‘physical injury’.
Comparison between section 80 and 81:
These two sections deal with situations where an accident
has happened and whither the consequences was deliberate or not. Section 80
deals with ‘accidents’ and section 81 deals with ‘inevitable accidents’.
Section 80 stipulates the absence of both criminal knowledge and criminal
intention where section 81 deals with only absence of criminal intention
because the accident is inevitable. Although in section 81, a man can take
defense for the nature of the action that, he new it was likely to cause harm
but he had no intention to do so, he cannot take protection if he had been
aware of the consequence and had a guilty intention of doing such
activity.
• Section 82:
Nothing is an offence which is done by a child under
[nine] years of age.
Analysis:
Under the age of nine years no infant can be guilty of a
crime; because that age an infant is by presumption of law, doli incapax and cannot be endowed with
any discretion.
The immunity of children under nine years of age from
criminal liability is not confined to offenders under the code only but extends
of offences under any special or local law by virtue of section 40(A) child
under 9 years of age has no discretion to distinguish right from wrong, this
criminal intention does not arise.
Theft by child-Receipt of stolen property
from child-
Where theft is committed by a child of six years and
another person is charged under section 411 of the Penal code for having
dishonestly receiving the property acquired by such theft. It has been doubted
whether such person can be held guilty under section 411.
•
Case-(1885)
J Weir 470
In Queen v Begarayi
Krishna (1883) Mad. 373, A child of 9 years of age stole a necklace and
sold it, and the child was discharged under this section.
•
Section 83:
Nothing is an offence which is done by a child above
2[nine] 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.
Analysis:
If a child between Nine and twelve years of age is to be
convicted of an offence it must be shown or proved that he has sufficient
maturity of understanding to judge the nature and consequences of the Act done.
Full criminal responsibility irrespective of maturity of
understanding commences after a person attains the age of twelve years
This section does not fix any limit or decree of
understanding to be attained by an infant of over 9 and under 12 years in
judging the nature and consequences of the Act, which must be determined upon
the nature of evidence and view that court takes of such evidence.
Case:
•
31 DLR
101
An act of child over 7 years of age and under 12 years
should not be taken as an offence unless it can be shown that he has attained
sufficient maturity of understanding the consequences of his conduc
•
AIR
1959All 698
Beyond the age of 12 years there is no immunity from
criminal liability, even if the offender is a person of underdeveloped
understanding and not capable of understanding the nature and consequence of
his act.
•
Labu Mia
vs state(criminal)53 DLR 218
The proceeding against 4/5 years old child cannot be
allowed to continue and hence it should be quashed.
•
Abdul
Sattar vs Crown (1949) P.L.L (Lahore)372
In this case Where the accused is above nine but below 12
years, the incapacity to commit an offence only arises if the child has not
attained sufficient maturity.
•
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.
Analysis:
Every person is presumed to know the natural consequences
of his act. Similarly, every person is also presumed to know the law. But, if a
person commits offences during unsoundness of mind, he will be exempted from
criminal liability under sec.84 of Penal Code,1860. As per this section, a
person would not be liable for his act charged as an offence, if at the time of
doing it, by reason of unsoundness of mind he was incapable of knowing the
nature of the act, or that he is doing what is either wrong or contrary to law.
But a distinction is to be made between legal insanity & medical insanity. A Court is concerned
with legal insanity & not with medical insanity. In State Vs. Balashri Das Sutradhar, it
was stated that legal insanity is different from medical insanity. If the
cognitive faculty is not impaired and the accused knows that what he is doing
is either wrong or contrary to law he is not insane.
Insanity must be proved at the time of Commission of
crime. Insanity at trial and at the time of commission of offence must be considered
separately. A plea of insanity at the time of trial will not help the accused. - Atta Muhammad Vs State,1960 PLD.
So, from the above discussion we can recognize two
essential elements of this section: -
a.
The accused must at the time of the commission of the
act be of unsound mind.
b.
The unsoundness of mind must be such as to make the
accused, at the time when he was doing the act charged as an offence, incapable
of knowing the nature of the act or that he is doing what is either wrong or
contrary to law.
Case:
•
AIR 1947
All 301
Drunkenness is no excuse. If a deaf mute has sufficient
intelligence to understand the character of his criminal act, he is liable to
be punished,
•
13 CrLJ
164
Temporary insanity caused by one bout of drinking or ganja
smoking which is of such an extremely temporary nature as to pass off few hours
after the consumption of the liquor or drug, is not even temporary unsoundness
of mind, it is nothing more or less than intoxication and affords no excuse to
the accused unless the intoxication be involuntary.
•
AIR 1959
Mad 239
Somnambulism is the unconscious state known as sleep
walking and might constitute a good ground for exemption from criminal
liability if it could be established that the act was done while in that state
of mind.
•
PLD 1954
Pesh l
The crucial point of time at which the unsoundness of mind
as defined in this section has to be established is when the act constituting
the offence was committed.
•
PLD 1961
SC 998
A murder committing during epileptic insanity is covered
by this section & the accused cannot be punished.
Analysis 2:
Under this section law recognizes nothing but incapacity
to realize the nature of the act & presumes that where a man's mind or his
faculties of ratiocination are sufficiently clear to apprehend what he is
doing, he must always be presumed to intend the consequences of the action he
takes.
For availing the protection of this section, the accused
must prove his legal insanity. As per section 105 of the
Evidence Act,1872 the onus of proving unsoundness is on
the accused. In State Vs Balasri Das
Sutradhar, 13 DLR
289 It was held
that-
-
If the accused raises any special plea on the basis of
any special or general exceptions, he must prove his special plea.
-
The prosecution must prove its case beyond any
reasonable doubt. So, here raises a question of fact whether the accused, at
the time of committing the offence, was of unsound mind or not. The accused has
to produce evidences to support his plea of exoneration. If he cannot prove his
claim, he will not avail the protection of this section. On the other hand, the
prosecution has to prove his case beyond reasonable doubt otherwise the accused
will be entitled to get benefit of doubt.
Non applicability of the section:
Mere abnormality of mind or partial delusion irresistible
Impulse, depression, mental agitation, despondency, compulsive behaviors of a
psychopath affords no protection under this section. The mere fact that the
accused was in a state of acute mental agitation, depression or despondency or
that he was for some time before the act extremely moody, taciturn and so on
will not prove that he was suffering from such unsoundness of mind as to make
him incapable of knowing what he was doing or that his act was morally or
legally wrong. Hence, in such cases the accused will not be entitled to
protection under this section merely on the proof of facts of the above nature.
--- AIR 1967 Ker 92.
•
Section 85:
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.
•
Section 86:
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.
Comparison of section 85 & 86:
•
These section attributes to a drunken man the
knowledge of a sober man when judging of his action unless the thing which
intoxicated him was administered to him without his knowledge or against his
will.
•
These sections deal with cases in which offences
are committed in stage of intoxication. Where there is no evidence of
intoxication these sections do not apply. -AIR
1970 Pat 303.
•
Under both the sections the defense that the
alleged criminal act was done under the influence of intoxication will not be available
if the intoxication was the result of accused's own voluntary act. -(1978) 45 CutLT 533.
•
Case References: Voluntary intoxication is no
excuse for the commission of a crime. -Bodhee
Khan (1866) 5 WR (Cr) 79 .
•
Although voluntary intoxication is no defence of
a criminal charge, such intoxication may be taken into consideration along with
other facts & circumstances of the case in determining the appropriate
sentence to be passed. -AIR, 1953, Raj
40.
•
If a man is made drunk through stratagem, or the
fraud of others or through ignorance, or through any other means causing
intoxication without the man's knowledge or against his will, he is excused. -1 Hale PC 32.
Differences between sec.85 & 86:
•
Sec.85 covers involuntary intoxication. Whereas,
sec.86 covers voluntary intoxication.
•
If the person is intoxicated against his will,
there shall be no criminal liability under section 85. But in case of voluntary
intoxication under sec.86 one who sins when drunk be punished when he is sober.
•
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.
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.
Analysis:
To understand this section first of all we need to know
about two simple propositions-
(a)
Every person is the best judge of his own interest.
(b)
No one will consent to what he thinks harmful to
himself.
Now we can move forward to the analysis:
This section works as a safeguard for a person who causes
injury to another person above eighteen years of age who has given his consent
by doing an act not intended and not known to be likely to cause death or
grievous hurt.
Here the words
‘Nothing that is not meant to cause death or serious harm’ mean that mens rea
or motive to cause death or grievous harm on the part of the doer should be
completely absent to achieve the section’s value.
It does not allow a man to consent to anything intended,
or to be known as his own death or grievous hurt. It does not warrant either
malicious death or grievous harm. This imposes an utter or definitive
prohibition on deliberate killing by agreement. Nevertheless, the purpose may
be to cause hurt, which is short of severe harm.
Ordinarily games such as fencing, boxing, football, and
the like are protected by this section. In all these games, proper caution and
perfect fair play must be maintained to get the benefit of this section.
Important points to focus on:
Absence of Knowledge
Section 87 not only stipulates that there is no intention
to cause death or grievous hurt, but also that the doer is not aware that the
act is likely to cause death or grievous hurt. It may be remembered that the
suspects involved had no intention of causing death or grievous hurt by means
of an accident and in the case of the wrestling match, nor were they even
remotely aware that their behavior was likely to cause death or grievous hurt.
If any harm is caused without foul play in the process of
such fighting, then the act’s doer performs no crime. However, on the other
side, instead of a fencing match, if it was a fight to be fought with charged
weapons, the essence of the arms utilized clearly shows that the parties
intended to die and that any harm was done by it, then the party doing it was
responsible irrespective of the consent given to the duel.
Therefore, the applicability of the clause cannot be
determined by the possibility of consent given or refused. Of instance, if a
person asks another person to kill him, the person to whom the request was made
has no right to kill him with impunity, just because there was an application
for the same thing. If he were to do so, he would be liable because at the
moment the person was killed, he had both the desire and the ability to kill
him, even though it was accomplished with the person’s consent.
Express or Implied Consent:
Consent may be express or implied under the section. So
long as there is consent and the said is voluntary, it should not be conveyed
in so many terms or structured explicitly. In so far as criminal law is
concerned, the term implied is used to mean or in any way signify: (1) by acts
and behavior; or (2) presumed, but never given or anyway meant.
When a customer enters a shop and picks up displayed goods
for sale, consent is implied to enter the shop, handle the goods and, if
necessary, purchase them. This denotes through actions and behavior.
Evidence:
The question of whether or not consent has been given is
always a matter of fact to be determined by leading evidence before the court
of the trial. Therefore, concerns as to whether ‘consent’ has been received
without the knowledge or by mistake or deception, or whether there has been a
prior implied consent, are empirical issues that must be proven by the
defendant who wishes to take advantage of section 87.
Age Limit:
The person who gives consent must be above the age of
eighteen years. The consent of a person below that age will not exempt the
accused from liability.
(1899) 12 CPLR(Cr) 11.
Case:
Bishambar v. Rooma (1975) 77 Bom LR 218
A girl was molested by the complainant. Approximately 200
people were determined to punish him armed with lathis. Three local people
interfered at that time and tried to bring about a solution. We were gathered
before the panchayat along with others who were the girl’s family. The plaintiff
decided to request the panchayat’s order.
The panchayat decided to take him around the village with
a blackened face and hit him with a shoe to prevent any injury to the
complainant. The panchayat’s decision was thus carried out, the three intervening
persons and the other girl’s relatives were prosecuted for crimes punishable
under sections 323 and 503 of the Code.
The Allahabad High Court held that “the accused were
entitled to the benefit under sections 81 and 87 of the Code. In a case like
this when the accused persons acted bona
fide, without any criminal intent in order to save the complainant from the
serious consequences resulting from his own indecent behavior, with his
consent, obtained in writing band for his benefit, then it may not amount to an
offence.”
R v. Laskey, (1993) 2 WLR 556 (HL)
In this case it was decided that in the absence of a good
reason, the victim’s consent is no defense and the satisfaction of
sado-masochistic desires does not constitute such a good reason. That is why,
this type of mere consent does not constitute any defence.
R v. Powell (Jason Wayne), 2002, ECWA Crim
661
The case decides that injecting of heroine on request
resulting in death does not constitute a defense as the victim had given
consent to inject him. As a result, the accused was found guilty for applying a
class A drug.
• 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.
A, a surgeon, knowing that a particular operation is
likely to cause the death of Z, who suffers under the 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.
Analysis:
Under section 88, any harm maybe
inflicted except the intentional infliction of death. There is no provision as
to the age of the consenting person in this section. The act done must be for
the benefit of the person consenting thereto. The act must be done in good
faith. Nothing can justify the intentional cause of death or grievous hurt.
Cases:
In English law it is recognized that a school master may
inflict corporeal punishment on a pupil for purposes of correction or enforcing
school discipline. In Regina v Hopley
it was observed that by the law of England, a parent or a school master may for
the purpose of correcting what is evil in a child inflict moderate and
reasonable corporeal punishment.
In R.
v. Ghatge, it was observed that a headmaster of a school, inflicting in
good faith moderate and reasonable corporeal punishment to correct the erring
pupil and thus maintaining the discipline of the school, is protected under
Section 88, as delegate of the parent of the child in the exercise of necessary
corrective jurisdiction for the benefit of the child.
In
R.P Dhanda V. Bhurelal, the
appellant, a medical doctor, performed an eye operation for cataract with
patient’s consent. The operation resulted in the loss of eyesight. The doctor
was protected under this defense as he acted in good faith.
• Section 89:
Nothing which is done in good faith for the benefit of a
person under twelve 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: Provided-
Firstly.-That this exception shall not extend to the
intentional causing of death, or to 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 extent to the
voluntary causing of grievous hurt, or to the attempting to cause grievous
hurt, unless it be for the purpose of preventing death or grievous hurt, or the
curing of any grievous disease or infirmity;
Fourthly.-That this exception shall not extend to the
abetment of any offence, to the committing of which offence it would not
extend.
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.
Analysis:
This section empowers the guardian of an infant under
twelve years or an insane person to the infliction of harm to infant or the
insane person, provided it is done in good faith and it is done for his benefit.
Persons above twelve years are considered to be capable of giving consent under
section 88. The consent of the guardian of a sufferer, who is an infant or who
unsound mind, shall have the same effect which the consent of the sufferer
himself would have, if the sufferer were of ripe age and sound mind.
The section states that when something is
done in good faith for the benefit of a person under twelve years of age, or of
unsound mind, by the guardian himself or by other person having lawful charge
of that person, or by express or implied consent of the guardian or other
person having lawful charge of that person, it is not an offence even though it
may cause, or be intended by the doer to cause, or be known by the doer to be
likely to cause, any harm to that person.
This provision is subject to four provisions mentioned in
the section itself. The first proviso states that where the doer intentionally
causes death or intentionally attempts to cause death, this section will not
protect him. For example, where A, in good faith, for his daughter’s benefit
intentionally kills her to prevent her from falling into the hand of dacoits, A
is not within this exception.
According to the second provison this
section does not apply where the doer does something which he knows to be
likely to cause death, for any grievous disease or infirmity. For instance, 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 to cure the child.
According to the third proviso this
exception shall not extend to the voluntary causing of grievous hurt, or to the
attempting to cause grievous hurt, unless the purpose of the doer be to prevent
death or grievous hurt, or to cure any grievous disease or infirmity. For
example, A in good faith, for his child’s pecuniary benefit, emasculates his
child. Here inasmuch as A has caused grievous hurt to the child for a purpose
other than for preventing of death or grievous hurt to the child, A is not
within the exception.
The fourth proviso states that this
exception shall not extend to the abetment of any offence, to the committing of
which offence it would not extend. For instance, A, intending in good faith the
pecuniary benefit of Z, his daughter, a child under twelve years of age, abets
a rape committed by В on Z. Neither A nor В is within the exception.
•
Section 90:
A 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
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
Unless the contrary appears from the
context, if the consent is given by a person who is under twelve years of age Section Analysis:
This section
does not define 'consent' but describes what is 'not consent'. This section
says that a consent is not a true consent if it is given –
•
by a person under a
fear of injury; and the person obtaining the consent knows or has reason to
believe this.
•
by a person under a
misconception of fact; and the person obtaining the consent knows or has reason
to believe this.
•
by a person of
unsound mind; and who is unable to understand the nature and consequence of
that to which he gives his consent.
•
by a person who is
intoxicated; and who is unable to understand the nature and consequence of that
to which he gives his consent.
•
by a person under
twelve years of age; and who is unable to understand the nature and consequence
of that to which he gives his consent.
Consent
obtained by a false representation which leads to a misconception of facts will
not be a valid consent. Mere submission by one who do not know the nature of
the act done, cannot give consent.
The consent
of an insane woman is no consent in the eye of law and a person who subjects
such a woman to sexual intercourse even though she apparently consents to it
cannot escape liability for an offence under section 376 of the Penal Code.
Cases:
Jayanti Rana Panda v. State (1983) 2 Cal HN 290
If a
full-grown girl consents to the act of sexual intercourse on a promise of
marriage and continues to indulge in such activity until she becomes pregnant,
it is an act of promiscuity on her part and not an act induced by misconception
of fact - Section 90 of Penal Code cannot be called in aid in such a case to
pardon the act of the girl and fasten criminal liability on the other.
Queen Vs. Poonai Fattemah (1869) 12 WR (Cr) 7
Where the
accused - a snake charmer - represented that owing to his powers of charming
even the bite of a poisonous snake would do no harm and a person was induced by
such representation to allow himself to be bitten by a poisonous snake and
died. It was held that the consent given on a misconception of fact, that is in
the belief that the snake charmer had power by charms to cure snake bites, and
the snake charmer knowing that the consent was given in consequence of such
misconception. It was held that the accused is guilty of murder.
Dasrath Paswan vs State Of Bihar AIR 1958 PAT
190
The accused, a student, became extremely depressed owing
to his repeated failure in his examination and wanted to put an end to his own
life. His wife, who was equally upset, requested him that he should first kill
her and then kill himself.
In accordance with this fact, the husband killed his wife,
but was arrested by the police before he could kill himself. It was held that
the wife's consent was not given under any misconception of facts and the
husband was, therefore, only guilty of culpable homicide not amounting to
murder under section 300 Exception 5.
• 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.
Causing miscarriage (unless caused in good faith for the
purpose of saving the life of 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.
Analysis:
This section explicitly states that those
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 stand on a different footing
and for them the benefit of sections 87, 88, and 89 of the Code do not extend.
Acts where exception under Sections 87,
88 and 89 of the Code do not extend may be offences affecting the public
health, safety, convenience, decency, morals and the like. Thus, obscene
publications or indecent exhibition even if done with the consent of the
concerned person will entail criminal prosecution and the exception under
sections 87, 88 and 89 of the Code will not be available to the offender.
• 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:
Provided-
Firstly- That this exception shall not extend to the
intentional causing of death, or the attempting to cause death; Secondly- That
this exception shall not extend to the doing of anything which the person doing
it knows to be likely to cause death, for any purpose other than the preventing
of death or grievous hurt, or the curing of any grievous disease or infirmity;
Thirdly- That this exception shall not extend to the
voluntary causing of hurt, or to the attempting to cause hurt, for any purpose
other than the preventing of death or hurt;
Fourthly- That this exception shall not extend to the
abetment of any offence, to the committing of which offence it would not
extend.
(a)
Z is thrown from his horse, and is insensible. A, a
surgeon, finds that Z requires to be trepanned. A not intending Z's death but
in good faith for Z's benefit, performs the trepan before Z recovers his power
of judging for himself. A has committed no offence.
(b)
Z is carried off by a tiger. A fires at the tiger
knowing it to be likely that the shot may kill Z, but not intending to kill Z,
and in good faith intending Z's benefit. A's ball gives Z a mortal wound. A has
committed no offence. (c) A, a surgeon,
sees a child suffer an accident which is likely to prove fatal unless an
operation be immediately performed. There is no time to apply to the child's
guardian. A performs the operation in spite of the entreaties of the child,
intending, in good faith, the child's benefit. A has committed no offence.
(d) A is in a house which is on fire, with Z, a child.
People below hold out a blanket. A drops the child from the housetop, knowing
it to be likely that the fall may kill the child, but not intending to kill the
child, and intending, in good faith, the child's benefit. Here even if the
child is killed by the fall, A has committed no offence. Explanation. -Mere pecuniary benefit is not
benefit within the meaning of sections 88, 89 and 92.
Analysis:
In simple terms, this section gives protection to people,
who does the action intentionally to save the life of the other person. Even
though the act might seem to cause harm to the other person and death in some
certain cases, it is not a criminal liability under those certain cases as it
was demanding a drastic action to be taken. There are some essential key points
that can be made for easier understanding of the section. They are:
•
An act done for the benefit of a person who
suffers harm.
•
The act done must be in good faith.
•
There was no time to obtain the consent of the
person.
•
Where it is impossible to signify the consent of
that person.
•
There was no guardian or lawful in charge of
that person to obtain the consent.
•
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.
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.
Both section 92 & 93 deals with the
immunity of an act done in 'good faith'.
The term 'good
faith' may vary person to person but in case of determination of the
intention under these sections, circumstances and investigations are the
measuring standard whether it was committed in 'good faith' or not. It is
necessary to keep these sections to encourage morality and save many endangered
lives.
•
Section 94:
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.
Analysis:
This section recognizes the principle that involuntary
crimes are a criminal liability for protection. Compulsion is a restraint on a
person’s will, by which a man is urged to do what he disapproves of his
judgment, and if the decision rests on the person, he will reject it. The advantage
of this provision would apply to all crimes under this Code except for the two
specifically excluded point in the clause which are murder and death-punishable
offences against the State. Some of the important ingredients of this section
are discussed below -
1.Exclusion of Murder and Offences Against
the State Punishable with Death:
The protection of this section shall be
exempted for crimes of murder and death-punishable offences against the State.
That means there is no protection under this section for a person who commits
murder under the threat of instant death. This is probably because a man with
conscience can’t kill another to save his own life. However, a person who under
the risk of instant death at the hands of murderers, abets murder and the
offence of causing the evidence of murder to disappear; is entitled to section
94 defenses.
In
reference to the second provision, i.e., the death-penalty offence against the
state, where coercion is not a justification for criminal liability. That means
if a person commits any crimes, even under the instant fear of death, which is
a death penalty offence against the state cannot seek protection according to
this section.
2.The threat of Instant Death: To use the exemption under this clause, if the act is not
performed, the threat under which the act is performed must be a threat of
instant death. The threat may be nothing less than an instant death threat. If
the risk is anything but ‘instant death’, then it will not refer to this
section. The threat of death, though present briefly but eventually ceases to
exist, or where it happens at a future or distant date, cannot be pled as a
justification because the threat is not ‘instant’.
In Emperor v. Antar, the accused assisted in removing the dead body of
a person following the murder of the accused’s mother, under the master’s
threat of killing him if he declined to assist him in removing the dead body,
was excluded from punishment under this section.
In Zahid Beg v. Emperor, it was held that it is sufficient if the immediate
death is caused to him if the person does not take action. It is reasonably
apprehensible. Whether or not the immediate death risk is valid, if
circumstances indicate that the accused at the time of the crime is reasonably
apprehended that if the accused doesn’t commit the act, immediate death would
be caused, then such a reasonable apprehension of immediate death is sufficient
to exempt the accused from the criminal liability under this section.
3.The threat should be Present at the Time
of Doing the Act:
The important ingredient of this section is
that at the time of doing the act of committing the crime the threat of instant
death must be present. If the threat of immediate death ceases or does not continue
to exist, this section will not apply at the time of the actual commission of
the offence.
4. Doctrine of compulsion and necessity: No one can plead the excuse of necessity or compulsion
as a defense of an act otherwise penal, except as provided in this section. No
man has the right to become a party and commit mayhem or mischief on society,
because of his fear of consequences for himself. Except where the uneasiness or
unsoundness of mind is precisely shown or the fear of instant death is proved. The
burden of proof being on the prisoner, pressure of temptation is not an excuse
for breaking the law.
However,
the English law is wider than section 94 of the Penal Code,1860. Under the
English law system, the defense of duress is available not only in case of fear
of instant death but also in case of grievous bodily 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.
Analysis:
The provisions of the above
section are based on the maxim “de
minimis non-curat lex” which means “law is not concerned with trifles.” The
author of the code says, “It is intended to provide for those cases which, from
the imperfections of language, they fall within the letter of the Penal law,
are yet not within it’s spirit. As our definitions are framed, it is theft to
dip a pen in another man’s ink, mischief to crumble one of his wafers, an
assault to cover him with a cloud of dust by riding past him, hurt to incommode
by pressing against him in getting into a carriage. These are innumerable acts
without performing which men cannot live together in society, acts which all
men constantly do and suffer in turn, yet which differ only in degree from
crimes.”
Section
95 of The Penal Code, 1860 will come to picture only when the act complained
amount falls within the definition of and offence and no person of ordinary
sense and temper would complain about it. However, whether an act that amounts
to an offence trivial or trifle and if comes within Section 95 of the Code,
would largely depend upon the facts and circumstances of the case, the
relationship between the parties, nature of injury caused to the victim, and
the intention to commit an offence.
Dragging
by hair in an aggressive manner and fisting in the course of attack are not
trivial acts but constitute the offence of causing hurt. The Magistrate is not
justified in ignoring the acts by holding that dragging by hair and fisting was
not uncommon amongst the women in the particular class and status to which the
accused belonged. [AIR 1967 Andh
Pro 208.] Cases:
Acts regarded as trivial: This section was applied where a person was convicted
for taking pods, almost valueless, from a tree standing on Government waste
land. [(Kasyabin Ravji, (1868)]
Where
the plaintiff complained of the harm caused to his reputation by the imputation
that he was travelling with a wrong ticket. [South Indian Railway V. K Satyanarayan, 1975]
Acts not regarded as trivial: Where a blow was given across the chest with an umbrella
by a dismissed policeman to a District Superintendent of Police because his
application to reconsider his case was rejected. [Sheo Gholam
Lalla, (1875)]
Advocate
uttering insulting words against witness in cross examination. Court stopping
further cross-examination, enmity between advocate and witness. It was held
that the case was not covered by section 95 but advocate could be validly
convicted under section 504. [ AIR 1964 Mys 285]
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