Every person living in this world have Private Rights. Each person should respect another’s private rights. Hence, every private right is protected by law. Any act that infringes another person’s private right, is a wrongful act, and the law provides a remedy to that person who has suffered legal injury through the wrongful act. Law either provide damages to the victim or provide punishment to the accused, depending on the cases, in order to provide justice. When that wrongful act causes legal injury to that particular person or group only, then it is considered under civil law, where a remedy is provided through damages. But, when a particular wrongful act causes legal injury to a person which also affects the society, in such a scenario, it is considered under criminal law, where a remedy is by giving punishment to the offender, either through imprisonment or fine.
In this article, we will talk about how someone can be criminally liable and what are some of the general exception, which people use as a defence to remove any criminal liability.
What is Criminal Liability?
According to the Indian Penal Code, ‘offence’ denotes a thing made punishable by this code1. The use of the word, ‘a thing’ must mean an act or a series of acts, or an illegal omission or a series of illegal omission2. Indian criminal law follows the principle of “et actus non facit reum nisi mens sit rea”, which means that to constitute a criminal liability there must be a presence of ‘mens rea’ and ‘actus reus’. India criminal law assumes that there is a presence of two mental elements behind a criminal liability i.e;
- Mens Rea:
It’s a Latin maxim, which means guilty mind. Every act has some kind of intention and mens rea is the wrongful or guilty or criminal intention a person has, that drives him into committing a crime.
- Actus Reus:
It’s another Latin maxim, which means the deed. Basically, it is the result or consequence that has been caused by the event, which the law seeks to prevent.
When both of these mental elements meet, it forms a criminal liability.
Illustration 1. ‘X’ is poor and hungry, he is starving from hunger, suddenly he saw a pastry shop being open and with no one inside, he entered the pastry shop with the intention to steal some pastries, he stole as many pastries as he can.
In the above Illustration, The fact that ‘X’ was hungry and starving shows us his motive and as we all know motive is the ulterior reasoning of an intention, we can showcase that his intention was to steal pastry from the shop for himself to satisfy his hunger, but because that intention was guilty or we can say criminal, it will become the mens rea of his liability. The fact that he stole the pastry from the shop, which is an offence and prohibited by the law, is the actus reus and hence, adding up of both mens rea + actus reus, made him criminally liable for ‘Theft’.
General Exceptions to Criminal Liability
Chapter IV of the Indian Penal Code states all the exceptions to criminal liability. Chapter IV consists of a total of thirty-one sections from section 76 to section 106, that deals with the exceptions. As these sections remove the criminal liability of a person, they can also be considered as the complete or total defence3.
In this article, we will talk about some of the general or important exceptions used in the contemporary world.
1. Mistakes of facts:
Section 76 and 79 of IPC, deals with the defence that can be taken when there is a mistake of fact. This defence is used when someone performs an act when he is bound by the law or justified by the law to do it.
For example – ‘X’, a Policeman throw a stick towards a thief to prevent him from running away. Here, no offence is committed by X, as he is bound by the law.
This defence can also be used in a scenario where there is a mistake of fact, that makes the person believe himself to be bound by law or justified by law. For example, ‘X’ was asked by the Income Tax Department to seal B’s shop, X with his due diligence mistakenly believes Z’s shop to be B’s shop and seals it. Here, no offence is committed by X.
The difference between Sec 76 and 79 of IPC is that, Sec 76 deals when the person is totally bound by the law whereas, Sec 79 deals when the person is justified by the law rather than bounded by the law. When the act did must be in good faith.
For example, ‘X’ a civilian, sees a person trying to commit robbery, to prevent this he strangles that person with a rope to restraint him. In such case there, X won’t be liable, as, the act of X was done in a good faith to protect others from getting robbed.
2. Judicial Act:
Section 77 and 78 of IPC deals with this defence. This defence was specially made for Judge. It’s made to protect him from any liabilities which can occur from his judgement. If a Judge under his Judicial capacity does something, while exercising his power, he would not be held liable for it. It also protects Judge from using the power which he believes in a good faith that it is provided by law, but it is not.
Sec 78 of IPC is almost as same as Sec 77, but this section rather protects the one who executes the order of the court. Any act done with the pursuance of the court, is not an offence, even though the court might not have the jurisdiction to pass such orders.
Section 80 of IPC deals with this defence. Any accident that is resulted while doing a lawful act, will not be considered as an offence. An accident is an act, which is done without any intention or knowledge and as there is no knowledge and intention behind it, there won’t be any mens rea too. The section itself gives 6 elements that is important to be fulfilled, before claiming this defence i.e;
- It should be an accident or misfortune.
- There should not be an intention or knowledge.
- It must occur while doing a lawful act.
- The act must be done in a lawful manner.
- The act must be done by lawful means.
- Proper care and caution must have been taken.
Section 81 of IPC deals with this defence. The defence of necessity and some elements of Sec 79 of this code, have same elements, in both harm is caused to another person, but the act was done without any criminal intent (good faith) and was justified by the law. Defence of necessity has his basis from the moral dilemma that whether an innocent person should be harmed to save thousands of others. In such a scenario the law protects the person that harms the single person for the greater good. But for the defence of necessity, the necessity should be of greater goods rather than only self-preservation. As, in the case of Dudley vs Stephens4, the accused was seamen. One day during their sea voyage, a storm turn over their ship. They and a 17-year-old boy managed to escape and float on a wooden plank. They continue to float over a plank for many days but no help was imminent, and with no food and water, they killed the 17 years old boy and ate his flesh to survive. When they were saved, they were charged with homicide of that kid. They plead for the defence of necessity, but it was rejected.
Section 82 and 83 of IPC deal with this defence. Section 82 clearly gives defence to a child under 7 years of age. The law presumes that a child cannot understand the consequences and nature of his act and hence he can not develop any mens rea and because of that any child below the age of the 7 can nor be held liable for his act.
Section 83 is the extension of the previous section, which states that any child above the age of 7 and under 12 years can not be held liable if his maturity of understanding is not developed enough to judge the consequences and nature of his act. If any child even at the age of 8 has an understanding of the nature and consequences of the act can be held liable. To know whether a child has developed that maturity, the facts and circumstances of that case have to look into consideration by the judge. In the case of Krishna Bhagwan vs State of Bihar5, A child stole a necklace and sold it. In this case, the child was held liable because the court held that the fact that that child sold the necklace to someone showcase that his maturity is developed enough to know that selling necklace can give him monetary gains. Hence, the child was held liable.
Section 84 deals with the defence of insanity. An insane person or unsounded mind are presumed to be incapable of knowing the nature of the act. The person won’t know whether the act is correct or wrong or even lawful, hence mens rea can not be developed inside his mind and he won’t be considered liable for his actions. The tough job for the court or for the defence is to prove the insanity. Since ages ago there have been various tests that have been used to identify whether someone is insane or not. Cases like Lord Ferrer’s case in 1706 which used the good and evil test, Oxford’s case where there was the use of right and wrong test. One of the latest and popular cases which have also played a role in Indian law to take the basis for defining insanity is the McNaughten’s Case6 in 1843, in which McNaughten killed the British Prime Minister’s secretary, mistakenly believing that he was killing the Prime Minister. When he was caught, he pleaded for the defence of Insanity. The House of Lords, constituted a special assembly to finalize the law relating to insanity. In Indian law the following elements are to be needed to for this defence:
- The accused must be unsound of mind at the time of doing the act.
- He is incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law.
However, the defence has to prove that the person was legally insane rather than medically insane. The difference between the both is that a medically insane person is certified to be insane by the medical grounds, whereas a legally insane person means that the person has to prove that while the commission of his act he was insane and does not know the consequences of his act.
An Intoxicated person usually can not plead for this defence but in some cases where continuous intoxication on the part of the accused over a long period has affected his mind to such an extent that he becomes an unsound mind temporarily7, can plea for this defence if he was temporarily unsounded while the commission of the act.
Section 85 and 86 deals with this defence. This defence works on the same principle of Section 84 of IPC. If someone involuntarily gets intoxicated during the commencement of the act, he won’t be held liable for it, but Section 86 of this act says that, if a person voluntarily gets intoxicated then it will be presumed that he had the same knowledge as he would have had if he had not been intoxicated and hence he will be liable for it.
Section 87 to 91 of IPC deals with this defence. Just like in tort it works on the basis of volenti non fit injuria which means “he who suffer consent suffers no injury”, but the difference in criminal law is that it is more specified. For this defence to be taken certain elements need to be fulfilled i.e
- The act must not be intended to cause death or grievous hurt or which is not known by the doer to cause death or grievous hurt.
- The person who has given consent to suffer the harm must be above 18 years of age.
- The consent given must be given through his free will.
This defence also protects when something is done in a good faith for the benefit of a person, especially for minor under 12 years of age, or an unsound person.
For example; X and Y agree to compete in a bare-handed boxing fight and while they are fighting, X breaks Y jaws, in such scenario X won’t be held liable as consent was given by both X and Y to each other to compete in a bare hand boxing fight.
Section 93 of IPC deals with this defence. Any person, who in good faith shares any information that may cause harm to that person, is not liable for the offence. It is one of the cases where the Burden of Proof lies on the accused to prove that he communicated in good faith.
Section 94 of IPC deals with this defence. When an act is done by a person who is forced to do it by threats, which, at the time of doing it causes reasonable apprehension in the mind of the doer that if the act is not done then he might result in him getting instant death, under such circumstances the person would not be liable for his actions. The only exemption to this defence is when the person commits a murder or offences against the State which is punishable by death. However, it does not protect the person, who commits an act, while he was threatened to get instant grievous hurt.
Section 95 of the Indian Penal Code deal with this defence. This defence can be used, when a person harms another person but the harm is so slight that no person of ordinary sense and temper would complain. This defence is provided for those cases in which the act of the person fall under the penal law but are yet not within its spirit and are all over the world8. This section was made with the view to lessen the burdens of the courts, as the courts won’t take cognizance of such cases.
For example; X pranked his friend Z, by calling him from an unknown number.
12. Private Defence:
Section 96 to 106 deals with this defence. If anything is done in the exercise of the right of private defence, then the person won’t be liable for it. The defence of private defence and the defence of and defence of necessity, have quite a features that are common, the difference being that with the defence of necessity, the act was committed for the greater good, whereas with private defence, the act is committed by the person to save himself from getting any harm. This defence can be used when the person committed an act to save his body or property. But even for that, there must be a reasonable apprehension of danger.
Illustration 1, X sees Z (his arch-enemy) purchasing guns and bullets from a shop, X apprehended that Z is going to kill him and to prevent this X hits Z with a baseball to make unconscious.
Illustration 2, X and Z (his arch-enemy) were in a heated argument and suddenly Z tried to threatened him and went to a shop and bought guns and bullet, X apprehended that Z is going to kill him and to prevent this X hits Z with a baseball to make him unconscious.
In both, the case facts are almost same except for that the fact that the X apprehension of the fact that Z will kill him is more reasonable in Illustration 2, hence in Illustration 2 X won’t be liable. The power of the right to defence is given by the state, as a state can not protect everyone at the same time, hence it gives the citizen the right to resist an attack. But, it should also be noticed that Right to Defence does not mean to take revenge but rather to prevent any attack on himself.
The exemption of using this defence is that it can not be used against a public servant who acted with good faith or was under his duty. When a person exerts his right to private defence, the force he uses must commiserate with that of the attacker. If X is attacking Z with a shoe, Z can defend himself by shooting a gun at X, but in such scenario Z can not plead for Private Defence in the court, because the force used does not equal to what X was using.
Killing someone is very extreme and it should be a last resort for anybody to use it for Private Defence, but if such scenario occurs then section 100 of IPC, protects that person. Certain elements need to be fulfilled for the defence under section 100 od this code such as;
- Assault on the part of the assailant may cause a reasonable apprehension of death.
- If the defender has a reasonable apprehension that the assault may result in grievous hurt.
- When the assailant commits an assault with the intention to commit rape.
- When the assailant commits an assault with the intention of gratifying unnatural lust.
- When the assailant commits an assault with the intention of kidnapping or abducting.
- When the assailant commits an assault with the intention of committing wrongful confinement and the defender have the apprehension that he won’t be able to recourse with any public authority for his release.
- When the assailant does an act of throwing or administering acid or an attempt to throw or administer acid.
1. Indian Penal Code, s.40.
2. T. Bhattacharya, “The Indian Penal Code”, Central Law Agency 10th ed. p.51 (2019).
3. Id at p.74
4. Dudley vs Stephens (1884) 14 QBD 273.
5. Krishna Bhagwan vs State of Bihar, 1991 1 BLJR 321
6. (1843) 4 St Tr (NS) 847.
7. T. Bhattacharya, “The Indian Penal Code”, Central Law Agency 10th ed. p.91 (2019)
8. Draft Penal Code, Note B, pp.109-110
Student, Manipal University, Jaipur
Aniket has a keen interest over criminology and criminal trials. He’s exploring his interests in the field of law and wants to become a great criminal litigator. For any Clarifications, feedback, and suggestion, you can reach him at email@example.com