FUNDAMENTAL PRINCIPLES OF CRIMINAL LAW Synopsis > Introduction Crime: Meaning Causes of Crime ‘Crime and Morality ‘Crime and Tort Elements of Crime ‘Stages of Crime Penal Liability Right to Defend Speedy Trial Introduction The primary and principal object of criminal law is maintenance of public order and protection of society from anti-social behaviour by prescribing rules of conduct and by punishing a person who violates law by holding a “fair trial". A “fair trial", therefore, must achieve two objects: 1) it must be fair to the accused, and 2) it must also be fair to the victim. Crime: Meaning ‘The expression “crime” has not been defined in the Penal Gode, 1860 (IPC). Stated simply, “crime” is violation of acriminal code. It is an act prohibited by law as injurious to public. Iris an act deemed by law to be harmful to society in general though the ultimate sufferer is an individual. “Crime” is thus commission of an act forbidden or prohibited by law and subjects the doer to punishment. Causes of Crime Crimes have been committed by persons from ancient days. It is, therefore, said that crime is “eternal” and cannot be totally abolished. Proper way to deal with the problem is to find out causes of crime and to solve them. Causes of crime are multiple in nature. They relate to socio-economic conditions of persons, family background which includes education, status, culture, stability, intelligence, opportunity, social pattern and societal atmosphere, disparity or inequality in status, education, employment, etc. and a host of other considerations. Crime and Morality In Ancient India, law and morality were not considered different and independent of each other. Things which ‘were approved by dharma were allowed as positive acts and thing which were prohibited by dharma were not allowed. There is, however, a distinction between criminal law and morality. Every criminal act may not be ‘moral wrong and vice versa. Thus, driving a vehicle without licence or without light or on a wrong side may bea criminal wrong, but it has nothing to do with morality. Conversely, adultery or homosexuality may be immoral (moral wrong) but may not be legally wrong if there is no prohibition of such relation-ship under the existing legal system. vvvvvVYVYVYCertain wrongs, no doubt, are immoral as also illegal. Thus, murder, theft, rape, robbery, dacoity, bribery, etc. are morally wrong and legally punishable. It has been rightly observed more than a century ago, that though law and morality may not be one and the same and many things may be immoral which may not be necessarily illegal, yet absolute divorce of law from morality would be of fatal consequence. Crime and Tort ‘There is no fundamental difference between a crime and a tort. It is said that normally, aconduct which harms an individual, harms to some extent society also, as society is formed by individuals. Moreover, there are several wrongs which are in the nature of tort as also crime; for example, assault, battery, libel, etc. Yet, there is difference between the two. It is said that tort is an infringement or violation of a private right of an individual while crime is breach of public duty affecting society asa whole. Thus, tort is a “private wrong’ while crime is a “public wrong”. It is also said that in crime, mens rea is an essential element, which is not necessary in an action in tore except where it is considered as an essential constituent, for example, malicious prosecution. In tort, action is brought by aggrieved individual whereas in crime, State can be said to be an aggrieved party. ‘The proceedings in tort are thus initiated by the party concerned while in case of crime, normally, the action istaken by the State. Even with regard to remedy, there is difference between the two. A remedy available to the plaintiffin an action in tort isto recover damages from the defendant. In crime, however, the object is to punish the offender and not to compensate the complainant even if compensation ora part of the amount of fineis paid to the victim. Again, tort is less serious as compared to crime. It isthe duty of the State to prevent crime and as such, the State maintains sufficient staff to ensure ‘law and order* by engaging police personnel, by launching prosecution against accused persons and by ensuring punishment to offenders. In case of tort, usually, its for the “injured”, i. aggrieved person to bring appropriate action in a competent Court of law and to get compensation from the opposite party. Elements of Crime The following elements are necessary to constitute a crime: i, Human being (‘person"); ii, Mensrea: Guilty mind: Evil intent; ‘Actus reus: Physical or actual act; and iv. Injury: Evil consequences. ‘Human being ("person") ‘The IPC makes every person liable for punishment for every act or omission contrary to law. "Person" means natural person, ie.a human being ("man" or "woman') as also juristic or legal person. Thus the first element of crime is that the act must have been done by a human being (or by a person"). In ancient days, the theory of etribution was in vogue. “A tooth for a tooth and an eye for an eye" was the law. Hence, even animals were Punished. Ifa pig kills child or a horse kicks a man, the animal could be punished. [fan ass destroys crop in a field, not belonging to its master, its one ear can be chopped off. [fit repeats the same offence, it may lose the second one also. But as society developed, it realised that for constituting an offence, mens rea, evil intent or guilty mind was necessary. No animal can be imputed with guilty mind. Normally, therefore, there must be a human being who must have committed some act (or omission) which should be contrary to law or punishable under a statute. No doubr, "person" would include a juristic or legal person. As such, a company, corporation or legal entity can also be punished in certain cases if it has committed an act or omission contrary to law. 7Mens rea: Guilty mind: Evil intent ‘The second constituent of crime is mens rea, guilty mind or evil intent. It is said that there can be no crime without mens rea or evil intention. Every crime requires guilty mind or bad intention. Mens rea has played an. important role and is one of the basic characteristics of English Criminal Law. It is based on a well-known maxim actus non facit reum nisi mens sit rea (“intent and act together will constitute a crime” or “act alone does not make a man guilty unless his intention were so"). But so faras the IPC is concerned, itis said that the above doctrine does not apply inasmuch as the provisions of the Code are clear which include the said principle. For instance, murder must have been committed intentionally or knowingly [S. 300]; theft must have been committed dishonestly [S.378]; cheating must have been committed fraudulently or dishonestly (S. 415]; mischief must have been committed intentionally or knowingly [S. 42.5), etc. The Code also contains provisions in Chapter IV [Ss.76-106] which enumerate circumstances wherein no mens rea or criminal intent is presumed. But there isa distinction between “intention” and "motive". Intention refers to immediate object while motive refers to remote, final or ultimate object. Stephen stated, “Intention is an operation of the will directing an overt act; motive is the feeling which prompts the operation of the will, the ulterior or ultimate object of the person willing.” ‘Motive is thus something which prompts a person to form an intention, Motive may provide a clue to the intention. To put it differently, intention isa means while motive is an end. Intention is mental formulation involving foresight of possible end and the desire to seek to attain it. Motive accordingly supplies reason or ground for intended act. Motive is the last or final step in the direction of the Act, intention is a prior step leading to that end (motive). “Motive is not considered sine qua non for holding the accused guilty. Hence, in a criminal case, the prosecution is required to prove intention (mens rea) on the part of the accused, but not the motive for commission of offence. It is not necessary on the part of the prosecution to establish motive where there is direct evidence against the accused. Conversely, where all ingredients of an offence are proved, bona fides or good faith on the part of the accused is equally immaterial. Thus, if A takes away a cow belonging to B with a view to save her so that she is not slaughtered (good faith). A cannot justify his act on that ground. “Absence of motive, however, isan important factor where there is no direct evidence against the accused. Itis also relevant consideration while imposing sentence on the accused. There is also a difference between intention" and "knowledge’. As already indicated, “intention is a state of mind. It is subjective element which can be inferred from the act committed by a person. "Knowledge’, on the other hand, is an awareness con the part of the person concerned. A person can be said to have knowledge where there isa direct appeal to his senses, for example, when he sees something, does something, perceives something, etc. Thus, though “intention” and "knowledge" both relate to mental attitude and may also go together, they are different concepts. There may be an intention without knowledge or vice versa. Knowledge is awareness on the part of the person of the consequences of his act. Knowledge of certain facts may hold a person guilty ofan offence. Hence, where a person committing an act knows that itis soimminently dangerous that in all probability it would cause death and yet he commits such ac, it can be said that he has committed "murder" as defined in Section 300 of the Code. . ‘Thus, ifa person throwsa child in a well and the child dies, itcan be said that he had knowledge that the act committed by him was so dangerous that in all probability it would result in the death of the child. He can, in the circumstances, be convicted under Section 302. IPC. "Intention" also differs from "negligence". To put it simply, “negligence” is doing of something which a reasonable and prudent man would not door failure to do (not doing) something which a reasonable and prudent man would do. 8‘Whereas in intention, a man voluntarily and willingly does some act, in negligence, there is absence of proper care and caution which is expected of acommon man. A person may also be liable for negligence on his part. Thus, if person drivesa vehicle negligently or causes death ofany person by a negligent act, he may be punished. ‘Actus reus: Physical or actual act The third element of crime is actus reus or physical or actual act. As itis said: actus non facit nisi menssit rea {theact alone does not amount to an offence unless accompanied by a guilty mind). Actus reus may be said to bea human conduct which the law prevents or prohibits. Ifthere is no actus reus, ie. ifthe act has not been ‘committed, there is no crime. The law does not punish a person only on the basis of mens rea or guilty mind ‘unless he does some overt act. Thus, if A intends to kill B, he cannot be punished for his intention (mens rea). Even fin furtherance of that intention, A purchases pistol (preparation), he does not commit any offence (if he possesses a licence as required by law). But once A does an overt act, i.e. fires at B, he commits an offence. IfA is successful in his attempt and kills B (act), he commits an offence of murder punishable under Section 302, IPC. But even if A is unsuccessful in killing B (attempt), he can be convicted for an attempt to commit murder punishable under Section 307 IPC. Injury: Evil consequences ‘The last element of crime is that such act (omission) must have resulted in evil consequences, ie. it must have caused injury to a human being (‘person’) or society. “Injury” is defined as “any harm whatever illegally caused to any person in body, mind, reputation or property”. It is, however, not necessary that such evil consequence or injury must have been caused as desired by the person doing the act. Thus, where A intends to kill B and fires at him but hits C who dies, A cannot contend that since he did not intend to kill C, he is not liable. Stages of Crime ‘Asa general rule, every crime has four stages: a) intention; b) preparation; ©) attempt;and 4) act (crime). Intention Intention is the first stage in commission of crime. But mere intention to commit a crime is not punishable. It has been said that devil himself knoweth not an intention ofa man. Mere intention not followed by preparation, attempt or act cannot constitute an offence. The will cannot be taken for the deed, unless there is some external act showing progress in the direction of the crime. Intention can only be proved by acts. Ithas been rightly said that “Juries cannot look into the breasts of criminals". But once an act is done, the law judges not only the act committed by the person but also the intention with which such act was done. Hence, where a person is charged for doing an act, it is open to a Court of law to draw an inference of his intention for doing such an act. For instance, A intends to kill B but does nothing in the direction of reaching to the target of killing B. A cannot be punished. But if for doing that act (killing of B) A makes preparation and purchases revolver, tries to kill him by firing at B (attempt) and is successful and actually kills him, the law will take into account even the intention of A for killing B and will punish him accordingly. 9Preparation Preparation is the second stage in the direction of crime. Preparation consists in devising or arranging means or measures for commission of offence. Itis thus a step further in the direction of doing an act. Thus, after forming an intention by A to kill B, if A purchases a pistol and keeps it with him, it can be said to be * preparation’ on his part. Mere preparation, however, is not punishable. In the above illustration, if A hasa valid licence for keeping a pistol, he cannot be punished for any offence. Itissaid that itis possible that before a person goes beyond the stage of preparation and enters the third stage of attempt, he may give up the idea of commission of offence. It is also said that it is not necessary that a person making a preparation for commission of an offence will always commit a crime. The law, hence, allows an opportunity to repent (locus penitentiae) and does not punish him unless he goes beyond the stage of preparation. Under IPC, however, in respect of certain offences which are grave and very serious in nature, mere preparation isalso punishable: 1. __ preparation for waging war against government [5.122]; 2. preparation for committing dacoity [S. 399}; etc. Attempt ‘An attemptis the third stage of crime. The term “attempt” has not been defined in the Code. Section 511 does not define the word “attempt”. It merely provides punishment for attempt to commit an offence. According to dictionary meaning, an “attempt” is an endeavour to commit a crime. It is, therefore, called “preliminary crime’. Though sometimes it is called "inchoate crime’, the said expression is not correct as it does not convey the right meaning. “Inchoate" is incomplete while ‘attempt’ is in itself complete and, therefore, punishable. * Attempt" may broadly be defined as an intentional act done by a person in the direction of commission of a crime which failed in its object independent of the volition of the person doing it. It is thus a futile exercise by the accused. Illustrations to Section 511 of the Code aptly explain the principle. Thus, A intending to pick the pocket of B thrusts his hand into the pocket of B but finds nothing. A is guilty ofan attempt to commit theft. If the attempt is successful, the crime is committed. But even if the attempt is unsuccessful, the person committing the attempt is liable to be punished. There is, however, distinction between "preparation” and attempt’. The dividing line between "preparation" and "attempt" is very thin and it is difficult to precisely conclude where “preparation” ends and “attempts” starts. The question requires to be decided on the facts and circumstances of each case. If there is no specific provision for punishment for attempt, Section 511 of the Code will apply and the accused will be punished accordingly. Act (crime) ‘The last stage of commission of crime isthe act, i.e. accomplishment of the act. Where a person succeeds in his attempt to commit.a crime, he is obviously responsible for such act, crime or offence and he will be punished accordingly. Thus, if intends to kill B (intention), purchases a pistol for committing murder of B (preparation), fires at B (attempt) and succeeds in his attempt and kills B (act), and B dies, A will be held guilty for committing an offence of murder and will be punished either for imprisonment for life or with death. Penal Liability Nature and scope According to dictionary meaning, "liable" means "bound or obliged by law”, "exposed to certain contingency or casualty’, ‘under an obligation", ‘subject to penalty’, "responsible in law’, etc. “Liability” thus means 10“obligation to doa particular thing". As a legal term, “liability” signifies that condition of affairs which gives rise to an obligation to doa particular thing. In criminal law, the said term covers every form of punishment to which a person subjects himself by violating the law of the land. Individual liability ‘The general principle of criminal law is that a person is liable for what he has done which he should not have done or what he failed to do which he ought to have done. Thus, a persons liable for his own acts or omissions. ‘The maxim generally applied to the law of tort qui facit per alium facit per se (he who acts through another acts by himself) does not apply to criminal law. Vicarious liability ‘Asa general rule, every person is liable for his own acts and omissions. This is particularly true to penal or criminal liability. A person cannot be held liable for an act (or omission) of others. But the said rule is not absolute. In certain cases, IPC makes a person vicariously liable for acts committed by others. Thus, where an offence is committed in furtherance of common intention, with common object, in criminal conspiracy, etc. cor where there is abetment, the person, not directly involved in the commission of crime may also be held vicariously liable. Strict liability Normally, before holding a person liable in the administration of criminal justice, it must be shown that he had aguilty mind or evil intention (mens rea). Ifthe prosecution is unable to prove guilty mind on the part of the doer of the act, the act itself (actus reus) is not sufficient to hold him guilty. But there are certain exceptions to this rule. One of them is strict or absolute liability. Where any statute imposes liability on a person doing a particular act irrespective of intention, the person concerned can be held liable even if there was no mens rea or guilty mind in committing that act. For instance, public nuisance. If a person causes public nuisance, he must he held liable. He cannot contend that he had no intention to cause such nuisance or that there was no mens rea on his part. The liability is absolute and absence of guilty mind is irrelevant. Right to Defend Ieis the right of every accused in our system of administration of criminal justice to defend himself. The first and fundamental principle of criminal justice is that every accused is presumed to be innocent unless he is proved guilty. It is for the prosecution to prove beyond reasonable doubt that it is the accused who has ‘committed the offence with which he has been charged. The Constitution of India allows every accused before criminal court to engage a pleader of his choice. Ifthe accused is unable to engage an advocate, it isthe duty of the State to provide him a lawyer at the expense of the State. Thus, free legal aid is provided to the accused. Even in respect of arrest of accused, the law takes care of rights of the accused. During investigation, inquiry and trial, several rights have been conferred on the accused. Speedy Trial ‘Speedy and expeditious criminal trial is an essential ingredient of administration of criminal justice and part of right to life guaranteed by Article 21 of the Constitution of India. Section 309, Criminal Procedure Code, 1973 mandates every enquiry or trial to be held as expeditiously as possible. The Amendment Act, 2008 has provided that the trial shall be completed within two months from its commencement. On the judicial side also, the Supreme Court has held in various cases that a criminal trial should be conducted promptly and the case must be decided expeditiously. No outer limit, however, can be prescribed for conclusion of criminal proceedings.TERRITORIAL JURISDICTION Synopsis v Introduction Intraterritorial Jurisdiction Exemption from Criminal Liability F itoralJursdict Offences Committed Outside India iralty Jurisdicti Buradi Introduction Sections 2 to 4, Penal Code, 1860 (IPC) deal with operation of the Code for the offences committed in India as also in foreign territory. Similarly, they provide for trial and punishment of offenders who are citizens (nationals) of India or who are foreigners. Territorial jurisdiction may be considered under two heads: i, Intraterritorial jurisdiction; and ii, Extraterritorial jurisdiction. Incraterritorial Jurisdiction Section 2 of the Code relates to intraterritorial jurisdiction of Indian courts It states that where any offence has been committed by any person in India, he can be tried and punished in India. As a general rule, j ‘ofa criminal courtis determined on the basis of place of crime or locality of offence irrespective of nationality, citizenship or domicile ofthe offender. Section 2of the Code recognises this principle. The phrase ‘every person’ means every person irrespective of citizenship, nationality, race, religion, caste, sex, etc., except who areexempted from the jurisdiction of courts. This is based on the principle that “the crime carries the person" (crimen trahit personam). ‘Thus, ifa foreign national commits a crime, for example, unnatural offence or adultery in India, he can be tried and punished under IPC. He can neither plead ignorance of law nor can justify his act on the ground that in his country, the act in question is not considered a crime. It has been said that when a foreigner enters Indian territory and thereby accepts the protection of Indian Laws, impliedly he also gives an undertaking or assurance to abide by all laws which are operative in India. Exemption from Criminal Liability Section 2 IPC makes “every person’ liable to punishment for every act or omission under the Code. Certain categories of persons, however, are exempted from criminal prosecution. The following are some of the recognised categories: UN officials; foreign ambassadors, diplomats and envoys; alien enemies; President and Governors; foreign army; warships, etc. vvvvvy Naveen en 12Extraterritorial Jurisdiction Sections 3 and 4 of the Code deal with extraterritorial jurisdiction of Indian courts. Section 3 enacts that if person liable under Indian law commits an offence beyond India, he can be tried under the Code for such act in the same manner “as if such act had been committed within India’. Section 4 extends the provisions of the Code to an offence committed by a citizen of India anywhere beyond India as also an offence committed by any person on ship or aircraft registered in India. Illustration ‘A, who is a citizen of India, commits a murder in Uganda. He can be tried and convicted of murder in any place in India in which he may be found. Offences Committed Outside India Offences outside India can be committed by any person: i) on land; i) in water; or iii) in ar. Offences committed on land ‘Where an offence is committed by an Indian citizen beyond India, he can be tried and punished under the ‘Code. This is based on the rule that the jurisdiction of court over its citizens is not lost by the reason of venue of offence. Substantive law as to extraterritorial jurisdiction of Indian courts is found in Sections 3. and 4 IPC while procedure has been laid down in Section 188, Criminal Procedure Code, 1973. Thus, a citizen of India ‘committing a murder in Uganda can be tried and convicted for an offence of murder in India. Again, where an Indian citizen committed an offence outside India where such act was not an offence, yet he was held liable to be tried and punished in India since such act was offence under IPC. But if at the time of commission of offence in a foreign country, the accused is not an Indian citizen, he cannot be dealt with under the Code even if he/she acquires Indian citizenship subsequent to the commission of offence. Offences committed in water Section 4(2.) IPC also applies where an offence has been committed on any ship. This is known an “admiralty jurisdiction”. Admiralty jurisdiction applies to the following cases: i. offences committed on Indian ships on high seas; offences committed on foreign ships in territorial waters of India; and iii, offences committed by pirates. Offences committed on Indian ships ‘Where an offence is committed on an Indian ship, it can be tried by an Indian court wherever the ship may be, even on high seas. This is based on the principle that a ship isa “floating island’ and belongs to the country ‘whose flag itis flying. Hence, a person committing a crime on board (whether an Indian citizen or a foreigner) is subject to the provisions of IPC if such vessel is flying under Indian flag. Offences committed in territorial waters of India ‘The admiralty jurisdiction also applies where an offence is committed on a foreign ship, i. a vessel not registered in India if she (such vessel) is within the territorial waters of India. In such cases, it can be said that an offence has been committed in India and the offender is liable to be punished under IPC. But where an offence has been committed by a foreigner on high seas on a ship not registered in India, an Indian court has no jurisdiction over the accused of such a crime. 13Offences committed by pirates To define simply, "piracy" is an act of robbery or dacoity committed on ship or vessel at sea. It consists of those acts of robbery and violence upon the sea, which if committed upon land would amount to felony. Pirates have no authority or permission from any Sovereign or State, empowering them to attack others. They are, therefore, regarded as robbers. According to Cicero, they are common enemies ofall (communis hostis omnium). Piracy is an offence against International Law or Law of Nations. A pirate is, hence, subject to arrest, trial and punishment by all States as an enemy of mankind. Actual act (robbery or dacoity) is not an essential element of piracy. A frustrated attempt to commit a piratical robbery amounts to piracy jure gentiutn. Offences committed in air All principles applicable to offences committed on a ship also apply to offences committed on an aircraft. Hijacking of an aircraft has emerged as an offence of international dimension, It is also called "skyjacking’. Ieis triable by courts wherever it has been committed. Ignorance of law is no excuse in such cases. Admiralty Jurisdiction ‘Admiralty is that branch of law which relates to maritime property, affairs and transactions, civil as well as. criminal. Admiralty jurisdiction, is jurisdiction to try offences committed on high seas and in territorial waters, It is thus a maritime branch of administration of justice. Extradition “Extradition” is an act of surrendering by one State to another of a person desired or required to be dealt with fora crime for which he has been accused or convicted and which is justiciable or triable in the other State. ‘The doctrine of extradition is based on two principles: 1, _ Itisin the interest of all civilised societies that no criminal should go unpunished; and 2. NoState should allow its territory to become a place of refuge for criminals of other countries. ‘Surrender of an accused or a convict of another State (whether a citizen or an alien) isa political act done in pursuance of a treaty between the two countries. In India, the question relating to extradition can be determined in accordance with the provisions of Extradition Act, 1962.GENERAL DEFENCES Introduction General Defences: Scheme Burden Of Proof of Guilt Of Accused Burden Of Proof of Exception General Defences: Types Mistake [Ss. 76 & 79) Judicial Acts (Ss. 77 & 78] Accident [S. 80] Necessity (S. 81] Infancy: Act OF Child [Ss. 82 & 83] Insanity [5.84] Drunkenness (Intoxication) (Ss. 85 & 86] Consent (Ss. 87-93] Good Faith [Ss. 88-93] ‘Act Done Under Compulsion [5.94] Trivial Acts [S. 95] Private Defence [Ss. 96-106] vvvvvy a Introduction Chapter IV, Penal Code, 1860 (IPC) consists of 31 sections (Ss. 76-106]. It contains "general exceptions". ‘These general exceptions make an "offence" a "non-offence’. General exceptions are thus general conditions ofnon-imputability. ‘The chapter is important inasmuch as it controls all provisions defining various offences under the Code which is also made clear by Section 6. It deals with persons who are not normal or there are special or peculiar circumstances whereunder the act is totally excluded from criminal liability or guilt is lessened Exception: Meaning According to the dictionary meaning, “exception’ means exemption, immunity, exclusion, impunity, privilege, etc. “Exception” hustssonething that isepepted Ie isan acto excepting; aninance or cate no cooforming to the general rule or to which general rule does not apply. 15Nature and Scope Section 6 IPC declares that every definition of an offence should be understood subject to general exceptions contained in Chapter IV [Ss. 76-106]. Section 6 thus clarifies that even if a particular act (omission) falls within the definition clause, such act (omission) would not be an offence ifit is covered by Chapter IV [Ss. 76-106]. Object The "General Exceptions’ contained in Sections 76 to 106 are of universal application. For the sake of convenience, all of them have been grouped together at one place. Instead of repeating in every section that the definition is subject to the exceptions, the Legislature devised a method vide Section 6 which expressly states that every penal provision and every illustration shall be understood subject to the exceptions contained in "General Exceptions". ‘Whether Exhaustive "General Exception’ in Chapter IV _[s.76-106] are, however, not exhaustive in nature. They are common to all offences. But over and above the said exceptions, there are other special exceptions also. For instance, Section 300 which defines “murder” has as many as five exceptions hereunder “culpable homicide" would not amount to “mmurder’. Similarly, Section 499 which defines “defamation” has several (10) exceptions. Again, Section 375 defines "rape", but the exception accepts sexual intercourse by a man with his (own) wife not under 15 years of age. General Defences: Scheme General exceptions (Ss. 76-106] may broadly be grouped in two categories: 1. Excusable Exceptions; and 2. Justifiable Exceptions. + Inthe former category, the doer of act is not liable on the ground that there is no requisite mens rea (guilty mind or evil intent) on his part which is necessary element for criminal liability. In the later category, the doeris not ignorant of his act. He is very much aware and conscious of what he is doing but there are justifiable reasons, grounds or circumstances which allow the doer to do such act and does not hold him criminally liable. ‘The topic of "General Exceptions” may be discussed under the following heads: i, Mistake (Se. 76, 79]; Judicial acts (Se. 77-78}; ‘Accident [S. 80]; Necessity [S. 81]; Infancy (Ss. 82-83); vi. Insanity S. 84); Intoxication [Ss. 85-86); viii. Consent (Ss. 87-91); Good faith [Ss. 88-93}; Compulsion or threat [S. 94]; Trivial acts (S. 95]; and Right of private defence [Se. 96-106). s BBE 16Burden Of Proof of Guilt of Accused ‘The fundamental rule of criminal jurisprudence is that the burden of proof of the guilt ofthe accused ison the prosecution. Itis for the prosecution to prove the accused guilty beyond reasonable doubt. ‘There is a presumption of innocence in favour of the accused. The accused is, therefore, presumed to be innocent until his guilt is established by the prosecution by leading cogent, convincing and reliable evidence and by proving beyond reasonable doubt that itis the accused who has committed the offence with which he has been charged. Burden of Proof of Exception Section 105, Evidence Act, 1872 enacts that where an accused claims the benefit of any of the general exceptions under Chapter IV IPC, the burden is on him to prove such exception. This section [S. 105] of the Evidence Act, 1872 is thus an exception to the general rule of administration of criminal justice which requires the prosecution to prove the guilt of the accused. ‘Thereis, however, difference between the burden of proof which is on the prosecution to prove the guilt ofthe accused and the burden of proof which is on the accused to prove an exception. Where the burden is on the prosecution to prove the guilt of the accused, the prosecution must prove it beyond reasonable doubt. Ttisnot necessary for the accused to adduce evidence in support of his plea that he is innocent. Ifthe prosecution fails to establish its case against the accused, the court is bound to acquit him. Burden of proof under Section 105, Evidence Act, 1872, on the other hand, is not of the same nature or character as on the prosecution to prove the guilt of the accused. Whereas the prosecution is required to prove the guilt of the accused "beyond reasonable doubt’, the accused need not prove his case, ie. any exception beyond reasonable doubt. Itis sufficient if he proves any exception by “preponderance of probability”. In that case, the burden will again shift on the prosecution to prove the guilt of the accused. As held by the Supreme Court, the onus on an accused person is similar to the onus on a party in civil proceedings. just as in civil proceedings the court trying an issue makes its decision by adopting the test of probabilities, so must a criminal court hold that the plea made by the accused is proved if preponderance of probability is established by the evidence led by him. MISTAKE [Ss. 76 & 79] Statutory provisions Sections 76 and 79 apply to acts done by a person under a mistake. Both the sections read thus: 76, Nothing isan 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. Illustrations (2) A, asoldier, fires on a mob by the order of his superior officer, in conformity with the 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 Zo be Y, arrests Z. A has committed no offence. 79. Nothing isan 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. 17Illustration 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-defence. Meaning According to dictionary meaning, "mistake" means an error in action, calculation, opinion or judgment caused by poor reasoning, carelessness, insufficient information, misunderstanding or misconception; to regard or identify wrongly as something or someone else; to be in error, etc. Itis thus an erroneous mental condition. Doctrine explained Sections 76 and 79 recognise general principle of law that ignorance of fact is an excuse, ignorance of law is not an excuse (ignorantia facti excusat; ignorantia frith non excuszt). ‘These provisions make it clear that 1. ignorance of factis excusable; and 2. ignorance of law is not excusable. Types Mistakes are of two types: 1. mistake of fact;and 2. mistake of law. Itis well-settled principle of law that mistake of fact is excusable but mistake of law is not excusable. Sections 76 and 79: Distinction Both the provisions apply to mistake of fact and not mistake of law. In both the situations there is bona fide intention on the part of the doer to advance the law. Such intention is manifested or exhibited by the circumstances attending the act which is the subject of charge. There is, however, a distinction between the two. In the former [S. 76], a person is assumed to be bound by law, whereas in the latter [S. 79], he is justified by law. The distinction is thus between a real or supposed legal obligation and a real or supposed legal justification in doing a particular act.Iis for the person who has. been prosecuted to assert and prove that either he was bound by law todo the act [S. 761 or he was justified in doing such act [S.79]. Mistake of fact Mistake of fact is a good defence and is excusable. It is based on a well known maxim ignorantia facti excusat, ignorantia juris non excusat {ignorance of fact is excusable (but) ignorance of law is not excusable]. A mistake of fact consists in ignorance, forgetfulness or erroneous mental condition of the truth resulting in some act ot omission on the part of the actor or doer. Where any act prohibited by law has been committed by a person under a mistake of fact, the doer is not liable because there is no mens rea or evil intent which is necessary to constitute a crime. Thus, where the accused under a bona fide mistake of fact kills a human being ina jungle under the belief that it sa wild animal, or shoots a person entering his house considering him to bea dacoit, or believing him to be a ghost, he commits no offence. But before a mistake of fact is accepted as, a defence, certain conditions must be fulfilled. 18‘The first and the foremost condition is that the state of things believed to exist, if found to be true, would have justified the act done and the accused would not have been held liable. Secondly, the mistake must be reasonable, i.e. after taking into account all the relevant circumstances and considerations, the act must have been committed. ‘Thirdly, the mistake must relate to fact and not law. Ifthe liability is statutory or strict liability under the relevant provisions of law, the question of evil intent (mens rea) is totally irrelevant. In that case, the doer will be liable irrespective of his intention or mistake of fact, for example, liability under the Prevention of Food Adulteration Act, 1954. Finally, the act must have been done by the accused in "good faith”. Mistake of law ‘We have seen that though mistake of fact is a good defence and is excusable, mistake of law is not. A person committing an offence, hence, cannot plead mistake of law. Mistake of law means mistake as to the existence of any law on the point or mistake as to what the law is. In either case, the mistake does not afford a ground for defence toa criminal act committed by a person. The rule ignorantia juris non excusat (ignorance of law is not excusable) is based on another well-known maxim ignorantia eorum quae scire tenetur non excusat (ignorance cof those things which everyone is bound to know is not excusable). Tes also said that if ignorance of law is admitted as a ground of exemption, every accused may take such plea and it will be very difficult or even impossible for the prosecution to prove that the accused had knowledge of the law on the point. Moreover, such defence would introduce an element of uncertainty in the administration of justice. Its also said that the operation of law is independent ofits being known to everybody. Ifit were not s0, it would be impossible for the administration to enforce the law which would lead to injustice and would adversely affect the rule of law. In State of Maharashtra v. M.H. Georges, the accused in contravention of notification published in Government Gazette imported gold in India. Though he was not aware of publication of notification, he was held liable. But fa person can be held guilty only on his knowledge of certain law, the question of knowledge is material and it must be proved by the prosecution that the accused was aware of such law. Where the law prescribes particular mode of publication of law, for example, publication in Government Gazette, it must be complied with. In absence thereof, the accused cannot be punished. Finally, though mistake of law is no defence, it isa relevant ground and a mitigating circumstance in regard to quantum of punishment to be awarded to the accused. JUDICIAL ACTS (Ss. 77 & 78] Judicial and executive immunity Sections 77 and 78 of the Code grant immunity to judges acting judicially and officers carrying out the orders of the court, Judicial immunity Section 77 protects judges while acting judicially. It enacts that nothing is an offence which is done by ajudge ‘when acting judicially in the exercise of any power given to him by law. A similar power is also conferred on judges under Section r, Judicial Officers Protection Act, 1850. ‘The underlying object of granting such protection is to ensure independence of judges to enable them to discharge their duties without fear of consequences. 19Before Section 77 is applied, the following conditions must be fulfilled: 1. theact must have been done by a judge while acting judicially; 2. _itmusthave been done in the exercise of power given by law; and 3. _itmust have been done in good faith. ‘Thus, where a Magistrate assumed power on erroneous reading of the law and passed an order, it was held that he was not criminally liable. Iehas also been held that the exemption extends not only to cases in which a judge proceeds irregularly in the exercise of his power but also where he, in good faith, exceeds such power. But where a judge does not actin good faith or knowingly exceeds his authority or does something maliciously contrary to law, he can be held liable. Thus, ifa judge assaults or abuses any person, or takes a bribe, he can be prosecuted and can be punished like an ordinary man. Again, ifa judge makes a defamatory remark with mala fide intention or for improper or oblique motive, he cannot seek protection of Section 77 IPC. Executive or ministerial immunity Section 78 is supplementary or corollary to Section 77. It protects officers carrying out the orders ofthe court. It states that nothing is an offence ifthe act is done in pursuance of a judgment or an order passed by a court, even though the court has no power to pass such judgment or make such order. Protection of officers carrying out the orders of the court is necessary and consequential. In absence of such provision, a judge while acting under Section 77 may be protected but an officer carrying out such order would be held criminally liable. Section 78 is, hence, necessary to extend protection to officers executing, implementing or carrying out the orders of the court. But the officer executing or enforcing the order of the court must also have acted in good faith. Ifhe acts mala fide, heis not entitled to protection under Section 78. Thus, ifa Magistrate authorised to issue a search warrant, issues a search warrant without credible information (which is a necessary condition) and asks the police officer to execute it and the police officer executes the warrant, he is protected under this section. But where distress warrant was issued against the judgment debtor and the bailiff executed such warrant in absence of judgment-debtor forcibly entering the house wherein a pardanashin lady was present who fell down, became unconscious and suffered great pain, it was held that the accused was guilty. ACCIDENT [S. 80] Meaning According to dictionary meaning, ‘accident’ is an unfortunate event which is unintentional and unexpected. ‘The word ‘misfortune’ connotes the same meaning with an additional element of ill-luck. Section 80 Section 80 of the Code states that 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, 20Conditions For the application of this section, the following conditions must be fulfilled: 1, theact must be an accident (or misfortune); 2. it must have been done without criminal intention or knowledge; 3. itmust be lawful, must have been done in a lawful manner and by lawful means; and 4. it must have been done with proper care and caution. Ilustrative cases ‘Aiisat 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. 1. _A,aschool master corrects a scholar in a manner not intended or likely to injure him using due care, The scholar dies. The death is accidental. 2. _A,aworkman throws snow from a roof giving proper warning, A passer-by is killed. The death is Lawful act, lawful manner and lawful means ‘The section requires “doing of alawfulact in a lawful manner and by lawful means’. Allthe three ingredients should be present so as to enable the doer of the act to claim benefit of this provision. Ifthe act is not law ful or isnot done in a lawful manner or by lawful means, Section 80 has no application and the accused must be held guilty. Proper care and caution Section 80 requires "proper care and caution’. The amount of care and caution should be “reasonable*, ‘must be such as to be taken by a reasonable and prudent man in the circumstances of a particular case. ‘Whether the doer of an act had taken proper care and caution must be decided having regard to the facts and circumstances of each case and no rule of universal application can be laid down. NECESSITY [S. 81] Doctrine of necessity Section 81 IPC embodies the doctrine of necessity, It states that nothing is an offence merely by reason of its being done with the knowledge that its likely to cause harm, ifit be done without any criminal intention to ‘cause harm, and in good faith for the purpose of preventing or avoiding other harm, normally greater harm, to person or property. Object ‘The principle recognised by Section 81 is based on the well-known maxim necessitas non habet legern (necessity knows no law). Explaining the doctrine Mayne stated: Section 81 is intended to give legislative sanction to the principle that where, on a sudden and extreme emergency, one or the other of the two evils is inevitable, it is lawful so to direct events that the smaller only shall occur. 21thas been said that such provision is necessary in every civilised society with a view to prevent greater harm or injury in compelling circumstances. There may be exceptional cases wherein expediency of breaking the law is s0 overwhelming that a person may be justified in breaking it. “A man who is absolutely by natural necessity forced, his will does not go alongwith the act.” Illustrations 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 10 or 30 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 ofan offence, though he may run down the boat C by doing an act which he knew was likely to cause that effect, ifit 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 the boat C. Comte For Section 81 to apply, the following conditions must be fulfilled: 1, theact must have been done without criminal intention (mens rea); 2. _itmust have been done in good faith; and 3. _ itmust have been done in order to prevent or avoid other (greater) harm. R.v. Dudley and Stephens InR. v. Dudley and Stephens , after a shipwreck at the high seas, four persons including a young boy were compelled to board a small boat. They were without food and water for several days. They, therefore, killed the young boy and fed upon his flesh and blood for a few days. They were then rescued by a passing ship. They were tried for murder wherein they pleaded necessity and self-preservation. The plea, however, was rejected by the court holding the act to be murder. thas been held that a man, in order to escape death from hunger, kills another man for eating his flesh is guilty of murder even if it was the only alternative to preserve his own life. The court held that a deliberate killing of an unoffending and unresisting boy however great the temptation cannot be justified by necessity. Though the law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequences; and such divorce would follow, if the temptation to murder were to be held by law an absolute defence to it. Doctrine of self-preservation "Self-preservation” means preservation of oneself from harm or destruction. Self-preservation which was a concept in International Law has largely been discarded and replaced by the doctrine of necessity. Self preservation can be adduced as justification of action in exceptional or extraordinary circumstances demanding immediate action. Itis wider than self-defence. Macaulay observed that many acts falling under the definition of offences ought not to be punished when committed from the desire of self-preservation. For instance, a gang of dacoits, finding a house strongly secured, seize a smith, and by torture and threat of death compel him to open the door for them. Now, to punish the smith as a housebreaker would amount to inflict gratuitous pain. The next smith may find himself in the same situation and may take a chance of being at a distant time arrested, convicted and sentenced to imprisonment, than incur certain and immediate death. In R. v. Dudley and Stephens's , the accused who 22killed a boy of 17 years for their survival invoked this doctrine. The court, however, refused to uphold the plea. The court laid down certain principles: 1, Self-preservation is a duty but self-sacrifice is a higher duty imposed on every man. 2. Self-preservation is not an absolute necessity. 3. Noman hasa right to take other's life to preserve his own life. 4. Thedoctrine of necessity or self-preservation does not justify private homicide. INFANCY: ACT OF CHILD [Se. 82 & 83] Act of child Sections 82, and 83 deal with an act of a child. Section 8z confers absolute immunity on a child under the age of 7 year. Section 83 applies to a child who is more than 7 years and less than 12. years. It states that such a child will not be criminally liable if he has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct at the time of committing the act. Categories ‘The Code deals with the following categories of children: i. Child below7 years: Absolute immunity; Child of more than 7 years and less than iz years: Qualified immunity; and iii, Child of 12. years (or more): No immunity. Ieis interesting to note that there is a lacuna in the legislative provision. Section 82 applies toa child under 7 years of age. Section 83 covers a child above 7 years and under 12 years of age. There is no provision as regards a child exactly of 7 years of age. Doctrine explained For every crime, mens rea or guilty mind is necessary. Immunity of a child from criminal responsibility is based on the principle that a child below years is doli incapax, ie. incapable of understanding what is right and what is wrong. Blackstone stated: "Infancy is a defect of the understanding, and infants under the age of discretion ought not to be punished by any criminal prosecution whatsoever.” Child below 7 years A child below 7 years is totally exempted from criminal lability in respect of any act done by him. The basis of total immunity is on the assumption that a child below 7 years does not understand and consequently does not realise the consequences of his act. Necessary culpable state of mind is absent in a child below 7 years of age. Child above 7 and under 12 years Acchild above 7 years and under 2.2 years of age cannot claim total immunity from criminal liability. The immunity is qualified. Section 83 states that such a child will not be held liable if he has not attained sufficient maturity of understanding of the nature and consequences of his act. In other words, if such child is doli incapax, ie. incapable of understanding what is right and what is wrong, he is not liable. On the other hand, if he is doli capax, ie. capable of understanding what is right and what is wrong, he is liable. 23‘Thus, when the accused (wife) aged 10 years killed her husband, told her mother that she was going for work and concealed herselfin a field, it was held that she was capable of understanding the nature of ac. Similarly, where a boy of 11 years picked up his knife and advanced towards the deceased with a threatening gesture saying that he would cut the deceased to bits and actually killed him, it was held that he knew what he was doing and was, therefore, held guilty. Likewise, where a boy aged 9 years picked up a necklace worth Rs. 100 and immediately sold it for 20 Rs and misappropriated the amount, itwas held that he was sufficiently mature tounderstand the nature of his act. Again, where the accused aged 11 yearsalong with his two elder brothers participated in committing a crime and used sharp edged weapon for killing the deceased, he was held liable. ‘Where a child above 7 and under 12 years commits an offence and the court finds that he was unable to understand the nature of his act, he cannot be held liable. It does not, however, mean that other persons also ‘would not be held guilty if otherwise they have committed any offence. Thus, where a child below iz years marries again during the lifetime of her husband and the marriage is caused to be performed by her mother, the child may not be held guilty but the mother can be convicted. Similarly, ifa child below to years takes up a golden chain and sells it to another person, the latter may be convicted for an offence of receiving stolen Property. Child of 12 years and more ‘A child of 12 years or more is criminally responsible for all his acts. Welfare legislations In recent years, several legislations have been passed for the purpose of care, protection, welfare, training, education and rehabilitation of neglected and delinquent children, including the Juvenile Justice (Care and Protection of Children) Act, 2000. INSANITY [S. 84] Statutory provision Section 84 IPC declares that nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that what he is doing is either wrong or contrary to law. Doctrine of insanity Section 84 recognises the well-known principle of law that intent and act must concur to constitute a crime (actus non facit reum nisi mens sit rea). A mere act without guilty mind cannot constitute an offence. An insane person who is not capable of knowing what he is doing, cannot be said to have evil mind and hence, he cannot be held guilty and cannot be punished. Iehasalso been said that a mad man is best punished by his own madness (furiosus furore suo punier); or amad ‘man has no will (furiosus nulla voluntas est); or a mad man i like one who is absent (furiosus absentis loco est). Categories of persons of unsound mind ‘There are four categories of persons who may be described as not of sound mind (non compos mentis) or are mentally diseased: sere a person who is drunk. . 24An idiot isa person who is having defective mental capacity by birth. There are no lucid intervals in his life. ‘The infirmity is perpetual or perennial. A person may be non compos mentis by illness. He may be excused from criminal liability if an offence has been committed under the influence of this disorder (illness). A Tunatic may become insane temporarily. Mental disorder may be at certain periods. Madness, on the other hand, is permanent lunacy without lucid intervals. There is distinction between insanity and drunkenness whereunder man's mind may be incapable of forming a specific intention. Drunkenness is a species of madness for which a man isto be blamed. Conditions For application of Section 84, the following conditions must be fulfilled: 1. atthe time of commission of the act, the person must be of unsound mind; and 2. hemust be incapable of knowing the nature of the act or that what he was doing was either ‘wrong or contrary to law. M'Naghten case The doctrine recognised by Section 84 is based on well known English case in R. v. M'Naghten . In that case M was under an insane delusion that Sir Robert Peel (then Prime Minister) had injured him and would continue to harm him. He, therefore, decided to kill Sir Robert Peel. One day M, mistaking Das Robert Peel, killed him. M was tried for murder. Relying on medical evidence, the jury acquitted M on the ground of insanity. The acquittal provoked widespread dissatisfaction. The House of Lords invited all Law Lords for laying down a law on insanity which is known as M'Naghten Rule of insanity. ‘The main points may be summarised thus: 1. _ Every person is presumed to be sane till contrary is proved. 2. Itis forthe accused to prove that at the time of committing the act _ he was insane, i.e. he was incapable of knowing the nature of the act or was not knowing that what he was doing was wrong or contrary tolaw. 3. Ifatthe time of committing the act, the person was knowing or capable of understanding as to the nature of the act or that the act was wrong or contrary to law, he is liable. 4. Incase of partial delusion, he will be exempted from criminal liability ifhe was not knowing or aware as to the act or criminality; otherwise he will be liable for his act. Medical insanity and legal insanity ‘There is a difference between legal insanity and medical insanity. A court of law is concemed with legal insanity and not medical insanity. It is not every form of insanity which exonerates the doer of the act from criminal liability. Abnormal mind itself also is not enough to show that the accused was of unsound mind. ‘What is necessary isto consider whether the person was incapable of knowing the nature of the act. Medical insanity relates to prisoner's consciousness of his act on those who are affected by it while legal insanity relates to prisoner's consciousness in relation to himself. Mayne rightly stated: "The medical witness states the existence, character and extent of the mental disease. The judge is to decide whether the disease ‘made out comes within the legal conditions which justify an acquittal on the ground of insanity." 25Presumption of sanity ‘The law presumes every person to be sane unless contrary i proved. Similarly everyone is presumed to know natural consequences of his act. Again, everyone is presumed to know law. These are not the facts which prosecution has to establish. Hence, it is not for the prosecution to prove the sanity of the accused at the time of commission of the offence. To put it in positive form, every man is presumed to possess sufficient degree of reason to be responsible for his acts unless contrary is proved. Burden of proof The burden of proof of insanity is on the accused who is seeking the benefit of Section 84. The burden of proving an offence is always on the prosecution and it never shifts. Whenever intention is an essential element of crime, it has to be established by the prosecution. Since Section 84 of the Code is an exception wherein the accused is not held liable for his act on account of insanity, it is a sort of exception under Section 105, Evidence Act, 1872. The burden of proving existence of circumstances bringing the case within the exceptions ison the accused. (i) Standard of proof ‘When a plea of insanity has been set up by the accused, the burden is on him to prove it. Ithas, however, been held that it is not necessary for the accused to prove that he is innocent. Its sufficient ifhe raises a reasonable doubs in the mind of the judge trying the case. The nature of burden of proof is not higher than that which rests upon a party in civil proceedings. But it has also been held that by creating a mere doubt, the burden is not discharged. Test ‘Though Section 84 exempts an act ofa person of unsound mind, the expression “unsoundness of mind” has not been defined. The courts have held that the expression is equivalent to insanity. But the said term ("insanity") is also not defined by the Code. Every person who is mentally disabled or diseased cannot ipso facto be ‘exempted from criminal liability. Ie issettled law that everyone is prestimed to be sane and is aware of natural consequences of his act. Likewise, every person is presumed to know law. These are not the facts which the prosecution has to prove. Whenever a plea of insanity is raised by the accused, the court has to consider two issues: Whether the accused has proved that atthe time ofcommittingthe act he was of unsound mind. If he fails to establish this preliminary fact, he must fail. But even if he is able to prove that he was of unsound mind, he has to establish that by reason of such unsound mind, he was incapable of knowing the nature of the act or that the act he was doing was either wrong or contrary to law. For determining the mental state ofthe accused, the court is required to consider the totality of circumstances, For deciding the issue, the court must keep in view the conduct and behaviour of the accused which preceded, attended and followed, ie. hisaction before, at and after the commission of the act, whether there was motive for the act, deliberation and preparation for such act, previous history, attempt to conceal or hide himself after the commission ofthe act, brutality with which the offence was committed, putting forward false excuses, the manner in which the act was committed, duration of attack and a host of other considerations. The court must also consider the evidence of experts, relatives and prosecution as well as defence witnesses. The court may also refer to standard law books on the subject, for example, Medical Jurisprudence by Taylor, Modi, etc. One of the tests having an important bearing on the question is: Would the prisoner have committed the actif there had been a policeman at his elbow? 26Ic is on the basis of totality of all these circumstances that the court should decide whether the accused is entitled to the benefit of Section 84. If he is, the court will acquit him. Ifhe is not, the court will convict him. Procedure at trial ‘Chapter XXV (Ss. 328 & 329], Criminal Procedure Code, 1973 lays down procedure to be followed where the accused is a lunatic or of unsound mind. Principles ‘While dealing with a case of an accused of unsound mind, the following principles will have to be borne in mind by a court: 1. _ every type of insanity is not legal insanity: the cognitive faculty must be so destroyed as to render one incapable of knowing the nature of his actor that what he is doing is wrong or contrary to law; 2. _ thecourt shall presume the absence of such insanity; 3. the burden of proof of legal insanity is on the accused, though itis _not as heavy ason the prosecution to prove an offence; 4. thecourt must consider whether the accused suffered from legal insanity at the time when the offence was committed; 5. _ imreaching such a conclusion, the circumstances which preceded, attended or followed the crime are relevant considerations; and 6. the prosecution in discharging its burden in the face of the plea of legal insanity has merely to prove the basic fact and rely upon the normal presumption of law that everyone knows the law and the natural consequences of his act. DRUNKENNESS (INTOXICATION) [Ss. 85 & 86] Statutory provisions Sections 85 and 86 of the Code deal with cases wherein an offence has been committed by a person while he isin a state of intoxication Section 85 states that nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that what he is doing is either wrong or contrary to law, provided that the thing which intoxicated him was administered to him without his consent or against his will. Section 86 covers cases of voluntary intoxication. It imputes the same knowledge to such a man as he would have had, ifhe had not been intoxicated. In other words, in case of voluntary intoxication, a person is liable like any other person who had not been intoxicated. Intoxication may be caused by consumption of alcohol, liquor or wine, or by taking narcotic drugs or by smoking opium, ganja,etc. Nature and scope Explaining nature and scope of the provisions relating to drunkenness, the Supreme Court in Bablu v. State of Rajasthan, stated: Basically, three propositions as regards the scope and ambit of Section 85 IPC are as follows: the insanity whether produced by drunkenness or otherwise isa defence to the crime charged; evidence of drunkenness which renders the accused incapable of forming the specific intent essential to-constitute the crime should be taken into account with the other facts proved in order to determine whether or not he had this intent; and 27ii, the evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime and merely establishing that his mind is affected by drink so that he more readily gave to some violent passion, does not rebut the presumption that a man intends the natural consequences of hisacts. Conditions Before defence of intoxication is claimed, the following conditions must be fulfilled: 1. theact must have been committed by the accused under intoxication; 2. byreason of such intoxication, the accused must be (@) incapable of knowing the nature of the act; or (b)not knowing that what he was doing was either wrong or contrary tolaw;and 3, _ thething which intoxicated him must have been administered a. without his knowledge; or . against his will. Voluntary drunkenness Avoluntary drunkenness is no defence ina criminal trial. Ifa manchooses to get drunk, it is his own voluntary act. Itis very different from a madness which is not caused by any act of the person. That voluntary species of madness which is in party's power to abstain from, he must answer for. It is thus an acquired madness. Voluntary drunkenness, hence, is no defence for commission of crime. The act to get drunk itself being wrongful, it supplies necessary and requisite mens rea. This principle is reflected in well-known maxim qui peccat ebrius, luat sobrius (let him who sins when drunk bbe punished when sober). Drunkenness and insanity Although intoxication or drunkenness may resemble insanity, there is distinction between the two. Whereas an offence committed by a person in insanity is to be considered under Section 84, an offence committed under drunkenness has to be dealt with under Sections 85 and 86 IPC. Lunacy or insanity is a disease, but drunkenness or intoxication is a vice. The former is to be pitied, while the latter should be condemned. Drunkennessis a species of madness for which a person himself is to be blamed. The criminal law is concerned with the effect and not the origin of the disease of the mind, Hence, if insanity results from intoxication or drunkenness, voluntary or involuntary, itis.a good defence toa criminal charge. Ifactual insanity supervenes, it furnishes a good ground to a criminal charge whatever may be the cause. But in cases falling short of insanity, evidence of drunkenness which renders the accused incapable of forming specific intent essential to constitute the crime should be taken into consideration with other facts proved in order to determine whether or not the accused had such intent. Test ‘The true test to apply is not the test which applies in cases of insanity, viz. whether the accused | knew what he ‘was doing was wrong or was able to appreciate the nature and quality of hisact. The true test is whether by reason of drunkenness the accused was incapable of forming an intention of committing the offence. 28Principles In Basdev v. State of Pepsu , the Supreme Court, after considering leading English cases on the point, laid down the following principles as regards liability of an accused when a defence of intoxication is set up for avoiding criminal liability: That insanity, whether produced by’ drunkenness or otherwise, is defence to the crime charged: That evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent; ‘That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary toconstitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way tosome violent passion, does not rebut the presumption that a man intends the natural consequences of his acts. CONSENT [Ss. 87-93] ‘Sections 87 to 93 of the Code deal with consent, express, implied or constructive. They also cover cases of ‘no consent" or “exclusion of consent". All these sections (Ss. 87-93), therefore, should be read together. ‘The law relating to consent is based on well-known maxim volenti non fit injuria (one who consents suffers no injury). It is founded on two simple propositions: 1. every person is the best judge of his own interest; and 2. noman will consent to what he thinks hurtful to him. Sections 87 to 89 relate to cases of harm caused with consent of victim or victim's guardian. Section 90 describes what is not consent. Section 91 clarifies that consent cannot legalise an act which is an offence. ‘Sections 92. and 93 deal with good faith. Consent: Meaning IPC does not define "consent". The law of contract defines “consent” thus: 13. "Consent" defined- Two or more persons are said to consent when they agree upon the same thing in the same sense. For creation of binding and enforceable contract, consent is necessary. Where parties to the agreement aread idem, ie. when they agree to the same thing in the same sense, it can be said that there is “consent”. If parties are not ad idem on essential elements, contract does not come into existence. In respect of criminal law, Stephen defines "consent" to mean ‘a consent freely given by a rational and sober person so situated as to be able to form a rational opinion upon the matter to which he consents". Object ‘The primary object of excluding certain acts from criminal liability on the ground of consent has been explained by Code makers thus: ‘We conceive the general rule to be, that nothing ought to be an offence by reason of any harm which it may cause toa person of ripe age who, undeceived, has given a free and intelligent consent to suffer that harm or totake the risk of that harm. 29Itwas further stated: Every man is free to inflict any suffering or damage on his own person and property; and if instead of doing this himself, he consents to it being done by another, the doer commits no offence. A man may give away his Broperty; and so another who takes it by his permission does not commit theft. He may inflict self-torture or he may consent to suffer torture at the hands of another. + Consent: Nature and scope . Consent is an act of reason, accompanied with deliberation, mind weighing, asin a balance; the good and the evilon each side. It is an act of a man in his character of a rational and intelligent being. Itimplies freedom of judgment and exercise of power with free act of mind. Mere helplessness or submission cannot be treated as consent. Consent differs from submission in that every consent involves submission but not vice versa ie. every submission does not necessarily mean consent. True and free consent must proceed from the will, the will without any control due to coercion, fear, misrepresentation, misconception, drunkenness, insanity, inability to understand, etc. Statutory provisions Section 87 enacts that nothing is an offence which is not intended to cause death or grievous hurt if it has been. ‘caused with consent of a person above 18 years of age. When the accused neither intends to cause death or ‘grievous hurt nor knows that the act is likely to cause death or grievous hurt and does such act with consent of the person who is major, i.e. above 18 years of age, he commits no offence. The illustration to Section 87 makes the position clear. 5 * 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. . It is, therefore, clear that where the accused has done the act with the intention of causing death or grievous hurt, or with the knowledge that such act is likely to cause death or grievous hurt, the consent of the victim will provide no defence. Section 88 applies to cases of consent to acts done with consent and in good faith. It states that nothing is an offence which is not intended to cause death of any person if such act is committed for his benefit in good faith and with his consent. The illustration is appropriate and explains the principle. ‘A,asurgeon, knowing that a particular operation is likely to cause death of Z, who suffers under a painful complaint, but not intending to cause Z's death, and intending, in good faith, Z's benefit, performs that operation on Z, with Z's consent. A has committed no offence. Sections 87 and 88 differ on the following points: 1. Section 87 applies to any harm other than death and grievous hurt while Section 88 applies to any harm except death. 2. Consent under Section 87 must be by a person over the age of 18 years Consent under Section 88 does not refer to age. (This section, however, should be read with Section 90 which states that person giving, consent must be of twelve years or more). 3. Section 88 expressly refers to "good faith". Section 87 makes no reference to good faith. (ilustration to Section 87, however, makes it clear that there should be no “foul play”). Section 89 is extension of principle recognised by Section 88 and provides immunity in those cases where acts have been done in good faith for the benefit of children below 12 years of age or persons of unsound mind with the consent of guardians. For claiming the benefit under this section, the following conditions must be satisfied: 301, theact must have been done for the benefit of the child or lunatic; 2. _ itmust have been done in good faith; and 3. _ it must have been done with the consent of parent or guardian. The illustration reflects legislative intent. . ‘cin god faith, for his child's benefit without his child's consent ashi child cut forthe 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. Ais within the exception, inasmuch as his object was the cure of the child. Section 90 covers cases where there is no consent in the eye of law. Section 91 declares gencial principle of law that consent cannot legalise an act which is an offence. Causing of miscarriage, hence, even with the consent of woman cannot justify the act. Sports and games Sports and games afford healthy exercise and develop martial spirit. They are not illegal merely because they expose the participants to some risk of harm. Hence, injuries caused during sports and games, such as, fencing, boxing, wrestling, football, cricket, etc. are protected. Illustration to Section 87 clearly states that there is no offence in such a situation. This, however, does not apply to illegal acts. For instance, prize fighting is prohibited by law. Hence, all persons involving in, or abetting or aiding in prize fighting are guilty. Again, fighting with deadly weapons or dangerous means cannot be allowed by any civilised society. Persons involved in such unlawful games cannot seek protection of exception under the Code. Punishment by parents and guardians Moderate and reasonable punishment to a child by a parent or guardian is no offence. Some illustrations were given by the Authors of IPC to explain this principle: 1. A,aparent, whips his child moderately, for the child's benefit. A has committed no offence. 2. Aconfines his child, for the child's benefit. A has committed no offence. Where the husband desired to have the custody of his wife who had not attained the age of puberty for the purpose of having sexual relation with her, it was held that the act was not for the benefit of the wife (minor) and the husband is not protected under the exception. Punishment by teachers A school-master, having regard to his peculiar position, represents the parent and has the parental authority delegated to him. A school-master, hence, has the right to impose moderate and reasonable corporal punishment for the purpose of correcting what is evil in the child or for enforcing discipline. Thisa school-master can do not only within the school but even outside school campus. ‘Thus, where a school boy was punished by a teacher when he was found smoking, or committing theft or for not apologising for his unruly behaviour, it was held that the cases were covered by the exception and school- master had committed no offence. But where the punishment imposed on a pupil is harsh, excessive or unreasonable, the school-master is iable. Thus, where the school-master continued to beat a child for more than two hours with thick stick or had bitten him severely, it was held that the school-master was not entitled to the benefit of exception. ‘Whether the punishment imposed by the school-master on the pupil is reasonable or not is a question of fact tobe decided in each case. It is also pertinent to note that corporal punishment is not recognised by the present legal system. Hence, such punishment should not be imposed by parents or teaching staff. Hence, where a 31school supervisor slapped a student for sitting on his scooter, his conviction under Section 323 IPC (punishment for causing simple hurt) was upheld. Doctors and medical practitioners Doctors, surgeons and medical practitioners are also protected for their acts not intended to cause death, done by them in good faith with the consent of patients. Illustration to Section 88 aptly lays down this rule. But the makers of the Code rightly observed that this provision does not excuse dangerous operations performed by unqualified persons. "Good faith" should be construed to mean a conscientious belief of the person (patient) that the doer (doctor) had the skill to perform the operation which will benefit him. Thus, where a person was operated for cataract and lost his eye-sight, but it was found that the operation was performed with the consent ofthe pain. in goed ath, fori benefit andi aecordance with recognised Indian metho, it was held the doctor was not liable. But where a person, who had no experience as a surgeon performed an operation on a patient for internal piles by cutting them with an ordinary knife which resulted in haemorrhage and death ofthe patient, it was held that the accused had committed an offence punishable under Section 304-A IPC. Punishment by panchayats and local bodies ‘Asa general rule, a panchayat or a local body has no power to try an offence alleged to have been committed by an accused. But where such person calls upon panchayat to take a decision, he must accept such decision. Thus, A made an indecent assault on a village girl and in order to save himself from serious consequences agreed to abide by the decision of the panchayat. The panchayat ordered his face to be blackened and he should bbe beaten with shoes which was done. It was held that the persons who enforced the decision of the panchayat had committed no offence. ‘What is not consent Section 90)is in negative form and describes what is not consent. In the following cases, consent cannot be said to bea consent, i.e. true consent within the meaning of IPC: 1. consent given under a fear of injury; consent given under misconception of fact; consent given by an insane person; consent given by an intoxicated person; and ysen consent given by a child under 12 years of age. Where act is an offence Section 91 is in the nature of proviso to Sections 87 to 89 of the Code. It clarifies that the exceptions in ‘Sections 87 to 89 will not apply to an act which is an offence. In other words, consent by a party may condone the act of causing harm to the person giving such consent on the ground of volenti non fit injuria (no injury is caused toa person who consents). It, however, does not wipe off an offence. The illustration to the section is clear and states that causing miscarriage is an offence. Hence, consent of the mother for such miscarriage is irrelevant and is of no consequence. Similarly, a person may be liable for offences of public nuisance, offences against public safety, morals, etc. Thisis based on the principle that consent cannot violate the law of the land. 32GOOD FAITH [Ss. 88-93] Sections 88, 89, 92 and 93 cover cases of good faith. All these provisions, hence, should be read together. Meaning ‘The expression “good faith" has not been defined by the Code. Section 52 also deals with acts done in good faith and states that nothing can be said to be done (or believed) in "good faith’ which is done (or believed) without due care and attention. If this negative form is converted into positive form, "good faith" may be defined as “every act done with due care and attention’. ‘Acta done in good faith with consent Section 88 applies to cases of consent of the party in respect of acts done in good faith. Illustration to the said section explains the principle appropriately. ‘Acts done in good faith with consent of guardian Section 89 covers cases wherein acts have been done in good faith for the benefit ofa child or insane person with consent of parent or legal guardian, Illustration to the said section also reflects legislative intent and clarifies the legal position. ‘Acts done in good faith without consent Unlike Sections 88 and 89 which provide for consent of the party or his parent or guardian, Section 92 applies, tocases of "without consent". In such cases, exigency or emergency requires quick or prompt action. It states that nothing is an offence by reason of any harm which it may cause toa person for whose benefit itis done in good faith, even without that person's consent, if circumstances are such that itis impossible for that person. to signify consent. The section contains illustrative cases. (a) Zis 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 2's benefit. A's ball gives Za mortal wound. A has committed no offence. For Section 92 to apply, the following conditions must be fulfilled: 1. theact must have been done for the benefit ofthe person; 2. _itmust have been done in good faith; and 3. the circumstances of the case must be such as to make it impossible for the person to signify consent. ‘The Explanation to the section clarifies that mere pecuniary benefit is not "benefit" within the meaning of Sections 88, 89 or 92. Communication made in good faith Section 93 enacts that any communication made in good faith to a person is no offence even though it may cause harm to him ifit is made for the benefit of the person. Thus, where A, a surgeon, in good faith, (and for the benefit of that person), communicates to him that he cannot live long and due to shock, the person dies, 33A.commits no offence. Such communications are made in good faith and for the benefit of the person concerned. Many a time, proper warning to the patient of his approaching death enables him to prepare for such situation and provides an opportunity to arrange his affairs accordingly. ACT DONE UNDER COMPULSION [S. 94] Statutory provision Section 94 of the Code grants immunity from criminal liability toa person for an act done by him under threat, duress or compulsion. It states that ifa person does an act under the fear of instant death, he cannot be held criminally liable. Doctrine explained The section is based on the doctrine of compulsion, necessity and self-preservation. Again, the doctrine is founded on well-known maxim actus ne invito factus non est mens actus (an act done by me against my will isnot my act). Applicability of Section 94 Section 94 applies toll offences under the Code, except an offence of murder [S.300] and offences against the State punishable with death [S. 121]. Conditions For application of this section, the following conditions must be satisfied: 1. theact must have been committed by the accused involuntarily; and 2. the apprehension or fear must have been of instant death. Law Commission's view ‘The Law Commission of India studied this provision and recommended to widen its scope to include (over and above the threat of instant death) grievous bodily harm either to the person or to any near relative. Dangers The doctrine of compulsion, however, has its dangers also. According to Stephen, criminal law is itself a system of compulsion on the widest scale. It isa collection of threats of injury to life, liberty and property if people do commit crimes. Are such threats to be withdrawn as soon as they are encountered by opposing threats? The law says to a man intending to commit murder: "If you do it, I will hang you". Is the law to withdraw its threat if someone else says: If you do not do it, I will shoot you". As it has been said, the pressure of temptation should not become an excuse for breaking the law. No man, from a fear of consequences to himself, hasa right to make himselfa party to committing mischief on mankind. TRIVIAL ACTS [S. 95] Statutory provision Section 95 ofthe Code enacts that nothing isan ofenceby reason that causeta slight harm that no pervon of ordinary sense or temper would complain. "Trivial": Meaning ‘According to the dictionary meaning, “trifling” or “trivial” means a matter, affair or circumstance of trivial nature or of very little importance. 34"Harm": Meaning ‘The expression "harm has not been defined in IPC. In its dictionary meaning, it connotes hur, injury, damage, impairment, moral wrong or evil. The Legislature has not used this expression ("harm") in a restricted sense. Object Section 95 is based on one of the well-settled principles of law reflected in maxim de minimis non curat lex (law does not notice trifles). Macaulay observed that there may be several cases which may fall within the letter of the law but not within its spirit. If definitions are to be read literally, it is theft to dip a pen into another man’s ink, mischief to crumble one of his wafers, assault to cover with him a cloud of dust by riding past him, hurt to incommode him by pressing against him in getting intoa carriage. They, however, should not be treated as crimes. ‘The Supreme Court also stated that the object of enacting Section 95 was to exclude from the operation of the Penal Code those cases which from the imperfection of the language may fall within the letter of the law, but are not within its spirit nd are considered as innocent. There are innumerable acts without performing which ‘men cannot live together in society, acts which all men constantly do and suffer in turn, and which itis desirable that they should do and suffer in turn, yet which differ only in degree from crimes. Applicability Section 95 applies to cases where the act which causes harm is accidental as also intentional or deliberate. Test Whether an act which amounts to an offence is trivial or not would undoubtedly depend upon the nature of the injury, the nn of the parties, the knowledge or intention with which the offending act is done, and other related circumstances. There can be no absolute standard or degree of harm which may be regarded as soslight that a person of ordinary sense and temper would not complain of harm. It cannot be judged solely by the measure of physical or other injury the act causes. Trivial acts: Mustrative cases The following acts have been held to be trivial acts: 1. dipping a pen in the ink pot of someone else without his consent or knowledge; 2. dashing against someone while passing through a crowded thoroughfare; 3.. taking away pods, almost valueless from a tree standing on government waste land; 4. taking away acheque of someone having no value; 5. alleging that the complainant isa "liar" or was travelling without a ticket, etc. Not trivial acts: Ilustrative cases ‘The following acts, on the other hand, were not held to be trivial acts: 1. takinga respectable man by the ear; 2. using filehy language during cross-examination of a witness by an advocate; 35PRIVATE DEFENCE [Ss. 96-106] ‘The right of private defence or self-defence is a very valuable right and has been recognised in all civilised societies within reasonable limits. Sections 96 to io6 deal with the right of private defence. An act which otherwise may amount to an offence would be “no offence" where the act is done in exercise of the right of Private defence. The right is codified and for comprehensive view of the ambit and scope of this right, all sections [Ss. 96-106] should be read together. The whole subject is based on the fundamental premise that self-help is the first rule of criminal law. Rule of ‘retreat" ‘The rule of “retreat” or doctrine of "retreat to the wall” or “retreat to the ditch” was expounded by Blackstone and followed by common law courts in England. The said rule required the party assaulted not to kill or injure the assailant but flee as far as possible by reason of some wall, ditch or other impediment and defend himself bya peaceful method of running at a safe place. It was described as the doctrine of ‘universal justice’. But the doctrine has undergone sea change in England as also in the US. So far as IPC is concerned, the “rule of retreat" hhas not been accepted. It has been held in several cases that there is no rule which requires a man to run away when he can exercise right of private defence. Object ‘The primary object of recognising the rule of private defence is to ensure that every citizen, however law abiding he may be, should not behave like a coward when confronted with imminent danger or unlawful aggression. There is nothing more degrading to the human spirit than to run away in the face of danger. Ithas been accepted in all legal systems that self help is the first principle of criminal law. The right of private defence is absolutely necessary for protection of every citizen's life, liberty and property. It has been said that protection by State Authorities and vigilance by Magistrates can never make up for safety and security of each individual on his own behalf, The fear of law can never restrain bad men so effectually as the fear of the sum total of individual or personal resistance. “Take away this right and you become in so doing the accomplice of all bad men." ‘Asa general rule, citizens are neither expected to run away for safety when faced with grave and imminent danger to their life, liberty or property as a result of unlawful aggression, nor are they expected, by use of force, to right the wrongs done to them or to punish the wrongdoer for commission of offences. The right of private defence serves a social purpose inasmuch as there is nothing more degrading to the human spirit than torun away in the face of peril. The right of private defence is designed to serve a social purpose and deserves tobe fostered within the prescribed limits. Right of private defence under IPC: Whether exhaustive Sections 96 to r06 IPC codify the entire law relating to the right of private defence of a person and property including the extent and limitation to exercise such right. The provisions are complete in themselves and the words used in the Code only have to be read for finding out the extent and limits of the right. Duty of State and right of private defence Itisundoubtedly the primary duty of the State to protect the life, liberty and property ofits subjects. Ina well- ordered and civilised society, therefore, it is assumed that the State would take care of its citizens. But no State, howsoever its resources, can afford to depute policeman to dog the steps of every rogue in the country. Consequently, a pro tanto right has to be conferred by the State on its subjects to take law in their hands and provide their own safety and security. 36Hence, where an individual citizen is faced with a danger and the immediate aid from the State machinery is not available, he can protect himself even by use of force. That being so, it is a necessary corollary to the doctrine of private defence that the violence which the citizen defending himselfis entitled to use should not be disproportionate to the injury or harm which is to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. “The exercise of the right of private defence must never be vindictive or malicious". Considerations ‘The right of private defence of person and property is recognised in all free, civilised, democratic societies within certain reasonable limits. Those limits are mainly dictated by two consideration: 1. the same right is available to all members of society; and 2. generally, itis the State which undertakes the responsibility for maintenance of law and order and protection of person and property of its citizens. ‘Asa general rule, citizens are neither expected to run away for safety when faced with grave and imminent danger to their person or property asa result of unlawful aggression, nor are they expected by use of force to rright the wrong done to them by punishing the wrongdoer. Basis of right of private defence ‘According to Mayne, the whole law relating to the right of private defence is based on the following Propositions: 1. the State has undertaken and in the great majority of cases is able to protect its subjects against unlawful attacks upon their person or property; 2. where State aid can be obtained, such course must be adopted; and 3. where State aid cannot be obtained, an individual may do everything that is necessary for the protection of his person or property; and 4. violence used in self-defence must be in proportion to the injury or harm to be averted and it should not be vindictive or malicious. Interpretation ‘The right of private defence is highly prized and a very valuable right. It serves a social purpose. The right of private defence, hence, should be liberally construed. Such a right not only will havea restraining influence on bad characters but it will also encourage the right spirit in a free citizen. Situations have to be judged from the subjective point of view of the accused in the surrounding excitement and confusion of the moment confronted with a situation of peril and not by microscopic and pedantic scrutiny. Insuch circumstances, itis inappropriate to apply tests of detached objectivity or cool atmosphere of court. A person in fear of life is not expected to modulate his defence step by step or tier by tier. "Detached reflection cannot be demanded in the presence of an uplifted knife.” In other words, the right of private defence cannot be weighed in "golden scales". Scheme Sections 96 to io6 deal with the right of private defence or self-defence. Section 96 lays down the general principle of law and declares that “nothing is an offence which is done in the exercise of the right of private defence.” 37Section 97 relates to subject-matter of private defence and states that every person has right to defend his person (body) as also his property. Section 98 recognises right of private defence against an act of child or of person of unsound mind, etc. Section 99 enumerates cases wherein right of private defence is not available. Sections 100,102, 103 and 104 deal with extent of right of private defence. Likewise, Sections 102 and 105 define and limit the commencement and continuation of right of private defence. Section 106 extends right of private defence against an innocent person. The right of private defence is codified in Sections 96 to io6. All these provisions have, therefore, to be read together. General principle Section 96 of the Code declares general principle of law relating to private defence. The said provision reads thus: 96. Nothing is an offence which is done in the exercise of the right of private defence. Subject-matter of private defence Section 97 deals with the subject-matter of right of private defence. It states that subject to restrictions contained in Section 99 (wherein there is no right of private defence), every person has such right in respect of the * _hisown body, and the body of any other person against any offence affecting the human body; and _hisown property (movable or immovable) or property of any other person, against any act which isan offence of theft, robbery, mischief or criminal trespass or an attempt to commit any such offence. Itis, therefore, clear that Section 97 confers the right of private defence on every person: 1. todefend his own body; 2. todefend body of any other person; 3. todefend his own property; and 4. todefend property of any other person. Private defence against act of child, person of unsound mind, etc. Section 98 recognises the right of private defence against an act ofa person who may not be held criminally liable on the ground of insanity, immaturity of understanding, etc. ‘Two illustrations explain the principle. (@) Z,under the influence of madness, attempts to kill A; Z is guilty of no offence. But A has the same right of private defence which he would have ifZ were sane. (©) Acenters by night a house which he is legally entitled to enter. Z, in good faith, taking A for a housebreaker, attacks A. Here Z, by attacking A under this misconception, commits no offence. But A has the same right of private defence against Z, which he would have if Z were not acting under that misconception. 38‘The above illustrations make it clear that a doer of an act may not be responsible in criminal law due to his position, such as, infancy (Ss. 82 & 83], insanity [S. 84], mistake or misconception [Ss. 76 & 79], intoxication [Ss.85 & 86], etc. That, however, does not deprive or take away the right of private defence otherwise available toa person granted by the Code, On the contrary, in such cases, the need of private defence is much more necessary. No right of private defence Section 99 covers cases wherein the right of private defence is not available. It also controls such right and prescribes limits within which the right can be exercised. ‘The said section lays down the following principles: © theres no rightof private defence against acts of a public servant; © thereisno right of private defence against acts done at the direction of a public servant; © thereisno rightof private defence in cases in which there is time to have recourse to the protection of public authorities; and © theright of private defence does not extend to cause more harm than necessary for defence. ‘The first part of Section 99 grants protection to public servants acting in good faith under the colour of his office even though the act may not be strictly justified by law. ‘The words "under the colour of his office” refer to irregular as distinguished from illegal acts. Hence, where the act done by the public officer is within his power but has been done by him irregularly, this part protects the public servant and does not confer right of private defence to the person against whom such action is taken. ‘Thus, where a police officer acting bona fide under the colour of his office arrests a person without authority, the person arrested has no right of private defence. Similarly, where Custom Authorities, in good faith seized certain goods believed to be smuggled goods without the requisite notification, it was held that against the said action, no right of private defence was available to the owner of the goods. There is, however, a distinction between irregularity and illegality. Where the action of the public officers illegal, unlawful or de hors the Act, and is without power, authority or jurisdiction, the public officer cannot get protection of Section 99 since such action cannot be said to be taken in "good faith" “under colour of his. office’. ‘Thus, where an officer attempted to execute a warrant of arrest, which was ex facie illegal, it was held that the accused was justified in resisting it. Similarly, where a police officer had attempted to search the premises of the accused without a written authority, it was held that the accused could resist such search. Again, under part one, the right of private defence arises only in case of reasonable apprehension of death or grievous hurt being caused by the act of such public servant and not otherwise. ‘Thus, where an Excise Inspector pursued a smuggler and fired twice to frighten him, injury caused by the latter (accused) to the former with a knife was held within the right of self-defence. Explanation 1 clarifies that a person is not deprived of right of private defence against the act of a public servant unless he knows (or has reason to believe) that the person doing the act isa public servant. ‘The second part extends the principle laid down in part one to acts done under the order or direction of a public servant. 39