Indian penal code ..................., Summaries of Law

Download Indian penal code ................... and more Summaries Law in PDF only on Docsity! CHAPTER 1 Nature of Crime PSA Pillai: Criminal Law,12th Edition PSA Pillai: Criminal Law,12th Edition > PSA Pillai: Criminal Law,12th Edition CHAPTER 1 Nature of Crime INTRODUCTION Personal safety, particularly security of life, liberty and property, is of utmost importance to any individual. Maintenance of peace and order is essential in any society for human beings to live peacefully and without fear of injury to their lives, limbs, and property. This is possible only in states where the penal law is effective and strong enough to deal with the violators of law. Any state, whatever might be its ideology or form of government, in order to be designated as a state, should certainly have an efficient system of penal laws in order to discharge its primary function of keeping peace in the land by maintaining law and order. The instrument, by which this paramount duty of the government is maintained, is undoubtedly the penal law of the land. Penal law is an instrument of social control. Its approach is condemnatory and it authorises the infliction state punishment. To criminalise a certain kind of conduct is to declare that it should not be done, to institute a threat of punishment in order to supply a pragmatic reason for not doing it, and to censure those who nevertheless do it. Penal law does it by prohibiting ‘undesired’ and ‘harmful’ human conduct and ‘punishing’ the perpetrators thereof or posing threat of punishment to the prospective violators. It, therefore, defines and punishes ‘acts’ or ‘omissions’ that are perceived as: (1) attacks on public order, internal or external; (2) abuses or obstructions of public authority; (3) acts injurious to the public in general; (4) attacks upon the persons of individuals, or upon rights annexed to their persons; or (5) attacks upon the property of individuals or rights connected with, and similar to, rights of property’.1 However, criminal law, which ultimately censures publicly an individual by labeling a person a criminal, has to balance between the ‘collective (valued) interests’ and ‘individual interests’. And ‘harmful conduct’ or ‘misconduct’ to be condemned by criminal law needs to be judged in terms of its effect on valued interests, which may be individual interest or some form of collective interest. This essentially involves a few pertinent issues, namely, how the criminal law ought to be shaped, what its social significance should be, and when it should be used and when not. Answers and states’ responses to these questions may not be uniform and precise. Criminal and penal policy of a state, which ostensibly varies from state-to-state and time to time, indeed dictates answers to these questions. Nevertheless, it will be difficult to deny the great importance of this branch of law for the security of life, property and maintenance of law and order in the state. People in a state can indeed afford to be without a highly developed system of constitutional law, or property law, but they could ill afford to remain even a day without a system of penal law. Professor Wechsler, an eminent American authority on criminal law, has rightly said thus: Whatever views are held about the penal law, no one will question its importance in society. This is the law on which men place their ultimate reliance for protection against all the deepest injuries that human conduct can inflict on individuals and institutions. By the same token, penal law governs the strongest force that we permit official agencies to bring to bear on individuals. Its promise as an instrument of safety is matched only by its power to destroy. If penal law is weak or ineffective, basic human interests are in jeopardy. If it is harsh or arbitrary in its impact, it works gross injustice to those caught within its coils. The law that carries such responsibilities should surely be as rational and just as law can be.2 The study of the law of crimes is very interesting and highly beneficial for more reasons than one. It catches the imagination of people on account of its dramatic character. Very often, the incidents which constitute a crime become sensational on account of the vivid and violent nature of the act s—forcible interferences with property and liberty; with persons and life and the penalty imposed on those who commit such acts, naturally attract the attention of all people in a state. Every person in a society is interested in the maintenance of law and order, and is anxious to have security of life and property. Again, persons who may CHAPTER 1 Nature of Crime Page 2 of 10 have to discharge the duties as either jurors or assessors, will also gain much by the knowledge of the fundamental principles relating to the administration of criminal justice. The comparatively high degree of importance and gravity of the criminal proceedings against a person, which may end in one’s answering with one’s own life, has naturally led to the high importance of this branch of law than others. The administration of criminal justice has also led people to think of greater problems, social and ethical, which would introduce a golden era in a state, where the law-abiding citizens would voluntarily abstain from crimes. WHAT IS A CRIME? It is very difficult to give a correct and precise definition of crime.3 Glanville Williams, admitting the impossibility of having a workable content based definition of a crime, points out that the definition of crime is one of the thorny intellectual problems of law.4 Russell also admitted that ‘to define crime is a task which so far has not been satisfactorily accomplished by any wrier’.5 JW Cecil Turner, who edited Kenny’s Outlines of Criminal Law, in a similar tone, also conceded that ‘the definition of crime has always been regarded as a matter of great difficulty’ and ‘the truth appears to be that no satisfactory definition has yet been achieved, and that it is, indeed, not possible to discover a legal definition of crime’.6 Such a ‘difficulty’, in ultimate analysis, arises due to the changing nature of ‘crime’, an outcome of the equally dynamic ‘criminal and penal policy’ of a state. A number of social and political forces and factors, individually or cumulatively, play a pivotal role in the formulation of criminal policy of a state. It obviously varies according to cultures, social values and beliefs, and ideology of the ruling social-political power. Only social values and culture in vogue and the existing power structure dictate the ‘values’ and ‘social interests’ that need ‘protection’ by using criminal law ‘sanctions’. ‘In fact criminal offences’, observed by Russell, ‘are basically the creation of the criminal policy adopted from time-to-time by those sections of the community who are powerful or astute enough to safeguard their own security and comfort by causing the sovereign power in the state to repress conduct which they feel may endanger their position’.7 Professor Kenny, delving into the ‘difficulty’, however was more eloquent, who observed thus: Any conduct which a sufficiently powerful section of any given community feels to be destructive of its own interests, as endangering its safety, stability or comfort, it usually regards as especially heinous and seeks to repress with corresponding severity; if possible it secures that the forces which the sovereign power in the State can command shall be utilized to prevent the mischief or to punish anyone who is guilty of it. ...Of course a variety of factors may operate at the same time to produce this result, and it is rarely possible to identify them clearly: all that can be said is that an offence may become a crime as a result of the combined effect of a number of different social forces. ...Crimes therefore originate in the government policy of the moment; ....Since that policy is influenced by many considerations it is not easy to discover in any specific case of new law, what exactly and exclusively are the forces which have produced it; nor, of course, is the policy always followed consistently or logically. ...So long as crimes continue ...to be created by government policy the nature of crime will elude true definition.8 A pattern of human behaviour prohibited by criminal law at a given time in a given society, thus, depends upon the specific features of its organisation. Developments in science, especially in biology and medicine, and changes in the predominant moral and social philosophy also influence the making of penal law.9 A human conduct that is believed to be inimical to the social interests is labeled as a crime. This explanation also enables us to understand why crimes change from age to age and differ from state to state. Whenever society comes to believe that conduct that was once held to menace any of the consciously recognised interests no longer act ually menaces them, it ceases to be a crime. Whenever society believes that a kind of conduct that was once thought to be indifferent to the welfare of the group actually threatens some of the cherished interests, it applies repressive methods, and that conduct becomes crime. Only political power of the day decides what human conduct deserves to be a crime. ‘The domain of criminal jurisprudence’, observed Lord Atkin, ‘can only be ascertained by examining what acts at any particular period are declared by the State to be crimes, and the only common nature they will be found to possess is that they are prohibited by the State and that those who commit them are punished’.10 A truth is that a crime is an act or omission in respect of which legal punishment is inflicted on the person who is in default either by act ing or omitting to act and criminal law relates to crimes and their punishment. W Friedman, approvingly quoting Professor Wechsler, observed: ‘The purpose of criminal law is to express a formal social condemnation of forbidden conduct, buttressed by sanctions calculated to prevent it’. This observation, according to him, poses three important questions ‘to which different societies give very different answers’. They are: (1) What kind of conduct is ‘forbidden’? CHAPTER 1 Nature of Crime Page 5 of 10 2. The principle that criminal laws should be enforced with respect for equal treatment and proportionality. 3. The principle that persons accused of substantial wrongdoing ought to be afforded the protection appropriate to those charged with criminal offences. 4. The principle that maximum sentences and effective sentence levels should be proportionate to the seriousness of the wrongdoing.14 Before criminalization of a human conduct, the legislature is expected to convince itself that: (a) it is absolutely necessary to create an offence; (b) the behaviour in question is sufficiently serious to warrant intervention by the criminal law; (c) the mischief could be dealt with under existing legislation or by using other remedies; (d) the proposed offence is enforceable in practice; (e) the proposed offence is tightly drawn and legally sound; and (f) the proposed penalty is commensurate with the seriousness of the offence.15 These factors, though indeed stipulate the criteria for the creation of new offences by a state, are hardly followed in practice. CRIMINAL LAW AND MORALITY Criminal law is narrower than morality. In no age or nation, has the attempt been made to treat every moral defect as a crime. The idea of crime involves the idea of some definite, gross, undeniable injury to someone, where some definite overt act is necessary. No one is punished for ingratitude, hard-heartedness, absence of natural affection, habitual idleness, avarice, sensuality and pride. Sinful thought and dispositions of mind might be the subject of confession and of penance, but not of criminal proceedings. Criminal law then, must be confined within narrow limits, and can be applied only to definite overt acts or omissions, capable of being distinctly proved, which acts or omissions inflict definite evils, either on specific persons or on the community at large. It is within these limits only, that there can be any relation at all between criminal law and morality.16 With regard to offences like murder, rape, arson, robbery, theft or the like, there is common hatred towards them both by law and morality. Law and morals powerfully support and greatly intensify each other in this matter. Everything, which is regarded as enhancing the moral guilt of a particular offence, is recognised as a reason for increasing the severity of the punishment awarded to it. According to Sir James Fitzjames Stephen17: The sentence of the law is to the moral sentiment of the public in relation to any offence what a seal is to hot wax. It converts into a permanent final judgment what might otherwise be a transient sentiment. The mere general suspicion or knowledge that a man has done something dishonest may never be brought to a point and the disapprobation excited by it may in time pass away, but the fact that he has been convicted and punished as a thief, stamps a mark upon him for life. In short, the infliction of punishment by law gives definite expression and solemn ratification and justification to the hatred which is excited by the commission of the offence, and which constitutes the moral and popular sanction of morality, which is also sanctioned by criminal law. The criminal law thus proceeds upon the principle that it is morally right to hate criminals, and it confirms and justifies that sentiment by inflicting upon criminals punishments which express it. LAW AND ETHICS Law is concerned with relationships between individuals, rather than with the individual excellence of their characters. Ethics is a study of the supreme good, which concentrates on an individual. Law comes in only when ethics and morality fail. Ethics deal with absolute ideal, whereas positive morality deals with current public opinion. CHAPTER 1 Nature of Crime Page 6 of 10 DEFINITIONS OF CRIME It is, as stated above, difficult to have a precise definition of ‘crime’. Nevertheless, a few scholars, from time to time, focusing on one or the other dimension of a prohibited act, defined the term ‘crime’. With a view to acquainting ourselves with nature and different facets of ‘crime’, it will be worthwhile to have an overview of some of the hitherto offered prominent definitions of ‘crime’. First of all, let us examine the two definitions given by Sir William Blackstone in his classical textbook of English law, Commentaries on the Laws of England. He has defined it first ‘as an act committed or omitted in violation of public law forbidding or commanding it’.18 However, the term ‘public law’ has different accepted connotations. Austin, for example, perceived ‘public law’ as identical with constitutional law. If this meaning is accepted, crimes would cover only political offences. This view not only narrows scope of the definition of crime but will also make the definition of no practical use. While some jurists equate ‘public law’ with ‘positive law’ or ‘municipal law’—law made by the state. With this interpretation of ‘public law’, the definition given by Blackstone becomes too wide as it will take in its ambit every legal wrong or violation of (positive) law. Perhaps Blackstone visualised the inadequacy of his first definition of crime, and he then defined crime in terms of public rights and duties. According to him, crime is ‘a violation of the public rights and duties due to the whole community considered as a community’.19 Sergeant Stephen, while editing Blackstone’s Commentaries, slightly modified the definition and reconstructed it to read as: ‘A crime is a violation of a right, considered in reference to the evil tendency of such violation as regards the community at large’. This definition is also inaccurate for the reason that the essential characteristic of crime is not the infringement of rights as in civil cases but, the doing of prohibited act s. Enforcement of rights belongs to the administration of civil justice. Instances of crimes which do not violate anyone’s right may be found in offences, such as, being found in possession of housebreaking tools by night or possession of counterfeit coins. Both Blackstone and Stephen have emphasised one aspect of crime in the above definitions, namely, harm or injury to the community. This aspect is true of many crimes, but not all. Even transactions of civil nature will injure the community. In a way, we can say that every illegal act, even a mere breach would usually injure the community. Again, there may be certain act ions of individuals, which harm a particular segment of the society, but would nevertheless not be criminal. For example, in today’s world, a man may without committing any crime at all, bring about greater calamity to the society by breach of trust or by negligent management of a company’s affairs, than by committing an act of theft, such as stealing a pocket handkerchief, though the former is a serious crime. Hence, it cannot be said with accuracy, that a legal wrong is a crime, if it tends to cause evil to the community. John Gillin, a sociologist, also defined crime in terms of ‘harm’ to society. He said: ...[A]n act that has been shown to be actually harmful to society, or that is believed to be socially harmful by a group of people that has the power to enforce its beliefs, and that places such act under the ban of positive penalties.20 The next question is, can we define a crime in terms of morality? Can we limit the idea of crime to those legal wrongs which violently offend our moral feelings?21Here again, although most of the crimes are moral wrongs as well, there are many cases in which the test of morality will not stand scrutiny. For example, although treason is legally the gravest of all crimes, it has very often been applied in the past against great patriots and national leaders like George Washington and Mahatma Gandhi. A mere omission to keep a highway in repair shocks nobody, but it is a crime, whilst many grossly cruel and fraudulent breaches of trust are mere civil wrongs. Directors of a company may ruin the company by gross negligence, bringing many shareholders to poverty and yet incur no criminal liability. A conduct may, indeed be grossly cruel and yet be no breach of penal law at all. A man, for example, who is a good swimmer callously stands by and watches a child drowning in a pond, would be guilty of committing a grossly wicked immoral act which may arouse universal indignation but by no standards would he be criminally liable. Similarly, immoral acts like ingratitude, hard-heartedness, insensitivity to the sufferings of others have never been crimes. Drafters of the Indian Penal Code rightly observed: ...[W]e cannot admit that a Penal Code is by any means to be considered as a body of ethics; that the legislature ought to punish acts merely because those acts are immoral.... Many things, which are not punishable, are morally worse than many things, which are punishable. The man who treats a generous benefactor with gross ingratitude and insolence deserves more severe reprehension than the man who aims a blow in passion, or breaks a window in a frolic, yet we have punishments for assault and mischief, and none for ingratitude. The rich man who refuses a mouthful of rice to save a fellow-creature from death may be a far worse than the starving CHAPTER 1 Nature of Crime Page 7 of 10 wretch who snatches and devours the rice; yet we punish the latter for theft, and we do not punish the former for hard-heartedness.22 Further, defining crime on the basis of purported immorality encounters with a problem having no convincing answer, i.e. whose morality should form the benchmark for criminalization? The issue of (de)criminalisation of consensual homosexuality, for example, has evoked different responses and answers by the liberal, the paternalist, and by the legal moralist. Criminalisation of an act simply on the ground of its immoral nature has been the subject of vigorous debate.23 Another important distinction between crimes and civil wrongs is said to lie in the different types of proceedings followed separately for each. The object of criminal procedure is always punishment, i.e. the convicted offender is made to suffer the punishment, which is inflicted on him not for the sake of redressal, but for the sake of example. The inevitability of punishment is its indelible imprint. The object of civil proceedings, on the other hand, is compensation or reparation. Restitution in integrum(restoration to the original position) is one of the basic principles of compensation in civil suits for damages. But it should be remembered that there are certain types of civil act ions in which exemplary damages are awarded against wrongdoers by courts by way of punishment. A peculiar type of proceeding known as penal action, which formerly prevailed in England, belonged to the civil procedure, although its avowed object was punishment of the wrongdoer. Under this early system, pecuniary penalties can be recovered in some cases by any person who sues the doers of various prohibited act s. Although this practice was called penal action, for it was against persons who had committed certain specified criminal act s, it was essentially of a civil nature, for the action was for the recovery of money from the wrong doer by way of penalty. The attempted distinction drawn between civil and criminal proceedings on the ground that the former enrich the individual, is also not true in all cases. In certain exclusively coercive civil act ions for the recovery of debts, debtors are imprisoned, although, it will not enrich the plaintiffs. However, the difference between civil and criminal proceedings lie in the respective degrees of control exercised over them by the sovereign authority in the state, not so much in respect of their commencement as at their termination. In criminal prosecutions, the state is the controlling authority. The sovereign authority in the state alone exercises the high prerogative of giving pardon to the criminal. The sanctions of criminal law, such as punishments, are remissible by the Crown in England and by the President of India in the Republic of India.24 Punishments are not remissible by private persons. Compromise is possible in civil suits, whereas in a criminal procedure, the wrongdoer can escape his liability only by suffering. Probably influenced by the degree of interference by the state in civil and criminal proceedings, some jurists defined crimes in terms of nature of the proceedings involved therein. John Austin, for example, said: A wrong which is pursued by the sovereign or his subordinates is a crime. A wrong which is pursued at the discretion of the injured party and his representatives is a civil injury.25 It is obvious that this definition is not of substance but of procedure. Further, it does not explain a number of crimes known to criminal law that allow the prosecution to initiate cases only at the instance of the injured party as in torts. No court, for example, will take cognisance of the offence of adultery and of criminal elopement, contrary to ss 497 and 498 of the Indian Penal Code (IPC), except upon a complaint made by the husband of the woman. Professor Kenny, plausibly with a view to overcoming the lacuna, modified the Austinian perception of crime and stated: ‘Crimes are wrongs whose sanction is punitive and is in no way remissible by any private person, but is remissible by the Crown alone, if remissible at all’. But even this definition of Kenny, which was till recently considered as a very good definition, has been criticised as highly technical, being based on mere procedure. Winfield thought it led to a vicious circle: ‘What is a crime? Something that the Crown alone can pardon. What is that the Crown alone can pardon? A crime.’26 It has been pointed out that if in a democratic state, like England or India, the Parliament takes away the powers of the Crown or of the Head of the State to give pardons, the definition loses its ground. It also fails when it is applied to the IPC which has incorporated a number of offences that are remissible by individuals without even the intervention of the court. Obviously, in such offences, private individuals, and not the state, are allowed to remit the punishment. However, the controlling power of the state with regard to the criminal prosecutions is an undeniable fact. Other noteworthy modern definitions of a crime are discussed below. According to Prof Paton: ‘In crime we find that the normal marks are that the State has power to control the procedure to remit the penalty or to inflict punishment’. Similarly, Prof SW Keeton has stated that: ‘A crime today would seem to be any undesirable act, which the state finds most convenient to correct by the institution of proceedings for the infliction of a penalty, CHAPTER 1 Nature of Crime Page 10 of 10 28 WA Bonger, Introduction to Criminology. 29 Michael and Adler, Criminal Law and Social Science, 1933. 30 Russell on Crime, JW Cecil Turner (ed), vol 1, 12th edn, Stevens & Sons, London, p 39. 31 RA Duff, Answering for Crime: Responsibility and Liability in Criminal Law, 2007, p 139. 32 Kenny’s Outlines of Criminal Law, JW Cecil Turner (ed), 18th edn., Cambridge, 1962, p 5. 33 For details see, Jerome Hall, General Principles of Criminal Law, second edn., Bobbs-Merrill, New York, 1960, pp 8-18. Also see Edwin Sutherland and Donald Cressey, Principles of Criminology, JB Lippincott, sixth edn, New York, 1960, pp 11-14. End of Document CHAPTER 2 Penal Law in India PSA Pillai: Criminal Law,12th Edition PSA Pillai: Criminal Law,12th Edition > PSA Pillai: Criminal Law,12th Edition CHAPTER 2 Penal Law in India CRIMINAL LAW OF THE HINDU SYSTEM Arthasastra, Manu Smriti and Yajnavalkya Smriti are the three leading law codes of ancient India. However, it is Manu Smriti or the Code of Manu,1 which has made a lasting impact on human behavior in India. It contains ordinances relating to law. It is a complete digest of the then prevailing religion, philosophy, custom and usages observed by the people in India. It lists the duties of the kings and rules, based on Dharma, of administration of justice by them. In Manu Smriti, law was discussed under 18 principal heads,2 covering both modern civil and criminal branches of law, which fell under heads such as gifts, sales without ownership, rescission of sale and purchase, partition, bailment, non-payment of debt, loans, wages or hire, breaches of agreements and contract, disputes between partners and between master and servant, boundary disputes, assault and slander, defamation, trespass of cattle, damage to goods and bodily injuries in general. It specifically recognised assault, defamation, theft, robbery, violence to body, adultery, altercation between husband and wife, and gambling; as crimes.3 Later on, Manu added cheating, trespass or transgression and fornication to the list of offences.4 These offences were subject to punishment such as censure, rebuke, fine, forfeiture of property, and corporal punishment including imprisonment, banishment, mutilation and death. The quantification of these punishments by the King was regulated by a set of principles laid down, and the factors indicated, in the Code itself. Yajnavalkya, following Manu, lays down that the King should inflict punishment upon those who deserve it after taking into consideration the nature of the offence, the time and place of occurrence of the offence, and the strength, age, avocation and wealth of the accused. As in other ancient communities, the practice of paying money compensation was also prevalent in ancient India. However, the Hindu law of punishment occupied a more prominent place than compensation. However, Manu Smriti practiced distinction between the higher and lower castes in the matter of giving punishments. Brahmins, persons belonging to highest caste of the Indian society, and women were exempt from the death sentence. Instead of capital punishment, a Brahmin was to be banished, as it was considered a greater punishment for him than even the death penalty. He was to be given lesser punishment in some offences, even a quarter of the prescribed punishment for others. Till recently, this was the provision of the former Travancore State Penal Code. If a man belonging to a lower caste, i.e. if an avarna man committed adultery with a Savarna’s wife, say a Namboodiri woman, the man would be awarded the death penalty. If a higher caste woman, i.e. savarna committed adultery with a lower caste man, she would be publicly humiliated or cast out of the house and city, or thrown to the dogs, and in some cases, burnt alive. Various tariffs of damages were provided for different types of assaults and defamation. These practices were common in Malabar until the Indian Penal Code 1860 came into force. Hence, Manu Smriti was criticised for its unequal punishment and treating Brahmins above the law. However, a scholar of criminal law,5 appreciating the scientific basis of this unequal punishment and its underlying basis, justifies such an unequal punishment treating Brahmins above the law. A Hindu Code was compiled by the Pandits of Benaras at the instance of Warren Hastings, when the latter was the Governor- General of India. It was called the Gentoo Code. It provided death penalty for murder. Theft was divided into open theft and concealed theft, and different punishments were prescribed as in Roman law. The former was punished by fine and the latter by the most cruel punishment of cutting off the hand or foot at the discretion of the judge. Housebreaking and highway robbery were punished with the death sentence. MOHAMMEDAN CRIMINAL LAW CHAPTER 2 Penal Law in India Page 2 of 8 Mohammedan criminal law, it is believed, originated from the Holy Koran. It was further expounded through Hadis, the sayings of the Prophet, Ijmma, i.e. analogical deductions from the text laid in the Holy Koran, and Kiyas, i.e. views of the learned scholars. Thus, the substantive Mohammedan criminal law has divine origin. What therefore remained for the human beings was only to prescribe the rules of procedure for its enforcement and administration. When Mughal rule was established over major portions of India, naturally, Mohammedan criminal law supplanted the ancient Hindu penal law. It was Mohammedan criminal law, as expounded by the leading doctors of the Suni Mohammedans, Aboo Haneefa and his two disciples Aboo Yoosuf and Imam Mohammed, that was introduced by the Mughal conquerors whose power reached its zenith under Akbar (1556-1605). Mohammedan criminal law classified all offences as incurring of one of these classes of punishments namely: (1) Kisas or retaliation including diyut—the price of blood homicide; (2) Hud—Specific penalties—theft, robbery etc.; (3) Tazeer or discretionary punishment. Kisas or retaliation applied principally to offences against the person; hud or specific punishment applied to robbery, mutilation, theft, adultery and some other offences; and tazeer also called seasut or discretionary punishment, applied to all other cases. Political offences were too vague and were put under the heading ‘destruction of rebels’, without giving any further details. But homicide was classified very minutely into five grades: (1) Katl-amd or willful homicide by a deadly weapon—equivalent to our murder; (2) Katl-shabah-amd or willful homicide caused with an instrument which was not likely to cause death; (3) Khatl-khata or erroneous homicide, killing under a mistake either as to the person or to the circumstances; (4) Involuntary homicide by an involuntary act, as where a man falls on another from the roof of a house; (5) Accidental homicide by an intervenient cause, as where a man unlawfully dug a well into which another person fell and was injured. For theft, hands were cut off. Stoning or scourging was the punishment prescribed for illicit intercourse. For various types of robbery, the punishment was mutilation, death, or both. Mohammedan criminal law was defective in many respects. It gave no weight to the testimony of unbelievers. In cases where women were charged with sexual offences, their testimony was also rejected. In such cases, the law was not satisfied with less than the positive testimony of four men, who are eyewitnesses to the fact and of ascertained credit. It was undoubtedly very harsh and cruel in certain cases. Death sentence was awarded to a married man, who had sexual intercourse with a woman other than his wife. The result was, as was remarked by Stephen ‘a hopelessly confused, feeble, indeterminate system, of which no one could make anything at all’. Under Mughal rule, civil justice and revenue laws came under the authority known as diwani, whereas military and criminal justice came under nizamat. On 12 August 1765, Lord Clive obtained from the Emperor of Delhi, whose power was fast declining, a grant of the Diwani of Bengal, Bihar and Orissa, which gave the Company the power to collect the revenue of those provinces. By another treaty, entered with Nujm-ul-Dowla, the subedhar, in February 1765, the Company acquired the nizamat from him. Still, until 1790, his deputy, the naib nazim with his nizamat adalat at Murshidabad continued to administer criminal justice over the people. Finally, in 1790, the East India Company removed the naib nazim and directly assumed the duties of the administration of criminal justice. Under the native system of administration that was in existence in the city of Calcutta, administration of criminal justice was as follows: There was a nizam, a supreme magistrate, invested with the power to try capital offenders. Just below him was the deputy nizam, who dealt with lesser offences such as affrays, riots, etc. Below him was the Foujdar, an officer of police who was the judge of all non-capital crimes. Kotwal was really the peace officer of the local unit dependant on foujdar. Outside the capital, in the mofussil districts, the authority of the zamindars prevailed and each zamindar had his own civil and criminal courts in his district. Only in cases of death sentence, the matter had to be reported to the capital before actual execution. CHAPTER 2 Penal Law in India Page 5 of 8 Code enacted as early as possible,25 added a fourth member, Sir Barnes Peacock, to the Commission. The Code was sent to a committee consisting of JP Grant, Sir Barnes Peacock, James William Colvile, D Elliot and UI Moffatt Willes. The Committee, after intensive deliberations in a series of meetings, decided to recommend to the legislative council that the Penal Code originally proposed by the Commissioners under TB Macaulay should form the basis of the system of penal law to be enacted for India. However, the Committee considered all the suggestions and alterations proposed which they incorporated in the Draft Penal Code. But it did not intend to recommend any substantial alterations in either the framework or phraseology of the original. The final and revised Penal Code was prepared and brought in by JP Grant, Sir Barnes Peacock, James William Colvile, D Elliot and Arthur Buller. The revised Penal Code was read for the first time in the legislative council on 28 December 1856.26 The Indian Penal Code Bill was read a second time on 3 January 1857. Thereafter it was referred to a select committee, which was to report thereon after 21 April 1857.27 The Indian Penal Code Bill, after its second reading, was published in the Calcutta Supplementary Gazette on 21, 24 and 28 January 1857. It was then passed by the Legislative Council of India, and received assent of the Governor-General-in-Council on 6 October 1860. It was scheduled to come into force on 1 May 1861.28 It was published in the Calcutta Gazetteon 13, 17 and 20 October 1860. However, the date of its enforcement, with a view to enabling the people, the judges and administrators to know the provisions of the new Penal Code, was deferred till 1 January 1862 by the Amending Act VI of 1861. Thus, it is evident that the Indian Penal Code 1860,29 which is an outcome of vision, and laborious efforts of about three decades (1834-1860) of the law commissioners, particularly of Lord TB Macaulay, the main architect of the Code, emerged as a codified the then prevailing English criminal law.30 Sir James Fitzjames Stephen, paying tribute to Lord Macaulay and his co- commissioners for their efforts in designing the Indian Penal Code, observed: I am conscious of being partial critic of this work for many reasons. But it seems to me to be the most remarkable, as I think it bids fair to be the most lasting, monument of its principal author.—[T]he Penal Code has triumphantly supported the test of experience for upwards of twenty-one years [in 1883] during which time it has met with a degree of success which can hardly be ascribed to any other statute of anything approaching to the same dimensions. It is, moreover, the work of a man who, though nominally a barrister, had hardly ever (if ever) held a brief, and whose time and thoughts had been devoted almost entirely to politics and literature.—[I]t (Code) deserves notice as a proof of the degree in which the leading features of human nature and human conduct resemble each other in different countries.31 ‘The Draft and the revision’, in his view, ‘are both eminently creditable to their authors; and the result of their successive efforts has been to reproduce in a concise and even beautiful form the spirit of the law of England; the most technical, the most clumsy, and the most bewildering of all systems of criminal law’.32 None other than Sir Henry Maine felt that ‘the admirable Penal Code’ was ‘not the least achievement of Lord Macaulay’s genius’ and hoped that it (Code) ‘undoubtedly destined to serve someday as a model for the criminal law of England’.33 However, its ‘alien character’ made some Indian scholars to resent the importation of the ‘foreign penal law’ in India.34 Sir Hari Singh Gour, in his Penal Law of British India, though appreciating the fact that the Indian Penal Code is ‘the most important piece of Indian legislation, was unwilling to join Sir James Fitzjames Stephen in giving tribute to Lord Macaulay, the main architect of the Code, and to the Penal Code. He felt that the ‘praise’ was ‘lavished upon it by discriminating critics without close examination’, and ‘solely from the charm of the great name of its reputed author’.35 In 1929, he observed elsewhere36: The Penal Code is one of the much praised Acts of Indian Legislature and in spite of its many defects has served its purpose fairly well. Its sentences can hardly be said to be other than monstrous. No civilised country today imposes such heavy sentences as does the Penal Code. Heavy sentences have long gone out of fashion in England and the odour of sanctity and perfection attaching to the Penal Code should not deter indigenous legislatures to thoroughly revise the sentences and bring them into conformity with modern civilised standards.37 The contemporary public opinion of Indians was not favorable to the Code. The drafters of the Code, Indians accused, failed to honor their ‘promises of simplicity, completeness and general intelligibility’ of the Code, when it was brought to the ‘test of’ its ‘practical application’.38 But interestingly, this opinion seems to be unfounded when one recalls the following observation of Sir James Fitzjames Stephen made in 1883. He remarked: Till I had been in India I could not have believed it be to be possible that so extensive a body of law could be made so generally known to all whom it concerned in its minutest details. I do not believe that any English lawyer or judge has anything like so accurate and CHAPTER 2 Penal Law in India Page 6 of 8 comprehensive and distinct knowledge of the criminal law of England as average Indian civilians have of the Penal Code. It is hardly an exaggeration to say that they know it by heart. Nor has all the ingenuity of commentators been able to introduce any serious difficulty into the subject. After twenty years’ use it is still true that anyone who wants to know what the criminal law of India is has only to read the Penal Code with a common use of memory and attention.39 It is pertinent to note that the Indian Penal Code 1860, which has been amended only sparingly since its enactment in the post- British era, is in operation as a major substantive penal law of India since more than 150 years. Only three chapters, namely, offences relating to criminal conspiracy, election and cruelty to married women, have been added to its original 23 chapters. Thematically, the Code may broadly be divided into four segments. Chapters I to V contain general matters relating to the extent, definitions, punishment, general exceptions, and principles of liability. Chapters VI to XV deal with public matters between individuals and the state. Chapters XVI to XXII are primarily concerned with offences committed by individuals against individuals or legal persons other than the state. The last chapter, ch XXIII, is residuary in nature, laying down the principle of punishment for attempt to commit an offence if no specific provision has been made therefor. 1 Its date according to Sir William Jones is 800 BC, while others place it at about 150 BC. 2 Manu, ch VIII, verse 1. Cited in RC Nigam, Law of Crimes in India, Asia, London, 1965, p 16. 3 Yajnavalkya and Nilkanta also recognised these crimes. Mayukha law that prevailed in Bombay also contains punishments for assault, theft, violence and adultery. 4 RC Nigam, Law of Crimes in India, Asia, London, 1965, p 16. 5 RC Nigam, Law of Crimes in India, Asia, London, 1965, p 18. 6 Mohammedan law, however, did not generally prevail in the Presidency of Bombay. Hindus were governed by their own criminal laws. Parsis and Christians were governed by English law. See, Herbert Cowell, History and Constitution of the Courts and Legislative Authorities in India, sixth edn, 1966, p 199. 7 Before 1833, in each of the three Presidencies—Bengal, Madras and Bombay—the Governor-General exercised legislative powers under authority from Acts of Parliament. Their enactments were called ‘Regulations’. 8 Regulation VI of 1832 (art 5) absolved the people of Bengal, Bihar and Orissa not professing Mohammedan faith from the operation of the Mohammedan penal law. 9 Bombay Regulation XIV of 1827. 10 For details see Sir James Fitzjames Stephen, A History of the Criminal Law of England, vol III, Burt Franklin, New York, 1883, pp 295-297. 11 Heavily relied upon: Sir James Fitzjames Stephen, A History of the Criminal Law of England, Burt Franklin, New York, 1883 ch XXXIII; AC Patra, ‘Historical Introduction to the Indian Penal Code,’ in Indian Law Institute, Essays on the Indian Penal Code, Indian Law Institute, New Delhi, 2005, pp 33-44, and RC Nigam, Law of Crimes in India, Asia, London, 1965, pp 20-24. 12 Charter Act of 1833, s 39. 13 The local governments either themselves sent legislative proposals to the Centre or, after 1854, got them introduced there through their sitting representatives. This state of things continued until 1861 when legislative power was restored to the Governments of Bombay, Madras and Bengal. [See Preamble to, and s 44 of, the Indian Councils Act 1861]. 14 Charter Act 1833, s 40. Two decades after the Charter of 1833, a sort of Legislative Council, comprising members of the Supreme Council, one representative each from the local governments and two judges of the Supreme Court of Calcutta, was established to assist the Governor-General in discharging his legislative function [vide s 22 of the Charter Act of 1853]. 15 It was initially offered to Sir James Stephen. 16 Charter Act of 1833, s 40. 17 By virtue of the Charters of 1833 and of 1853, Law Commissions were appointed in 1834, 1853, 1861 and 1879. Of these four Law Commissions, the first and the last worked in India while the second and the third had their sittings in England. No Indians were appointed as commissioners, and the law of England was used as a basis. The British Indian civil and criminal statutes, in consonance with this policy, had been enacted without owing to their origin to the institutions, texts or their commentaries of the pre-British India texts of Hindu or Mohammedan law. The Law Commissioners, though theoretically conscious of the importance of the relation of the Indian customs, usages, laws and institutions to the new laws to be enacted for the governance of the people in India, did not attach importance to the ancient customs, usages and laws in India while formulating new laws. See generally, BK Acharyya, ‘Codification in British India’, in Physiognomy of the History of Codification in British India, 1914, p 40. CHAPTER 2 Penal Law in India Page 7 of 8 18 Without injustice to any of colleagues of TB Macaulay on the Indian Law Commission, the Draft Penal Code may be attributed to Macaulay. ‘The illness of two of the three colleagues threw the work entirely on me’, wrote Macaulay on 15 June 1837. See Lady Trevelyan, Miscellaneous Work of Lord Macaulay, vol 1, Harper, 1880, p 417. 19 Officiating Secretary JP Grant’s letter dated 5 June 1837 to the Law Commission, National Archives of India, Legislative Department Act of 1860, No. XLV, Part I. 20 Notes (lettered ‘A’ to ‘R’)—each itself an essay—appended to the Draft Penal Code explained and defended every 21 French Code 1810. 22 Code of Louisiana 1821. 23 Cited from AC Patra, ‘Historical Introduction to the Indian Penal Code’, in Essays on the Indian Penal Code, Indian Law Institute, New Delhi, 2005, p 33, at p 37. Sir George C Rankin supported the Commission’s wisdom of taking the English law as a basis of the Penal Code on the ground that since the time of Cornwallis it had been chose jugee that the criminal jurisdiction could not be exercised without regard to British notions of justice, whether in substance or in method, and the Regulations had in fact introduced much law upon that footing—apart altogether from the fact that the Presidency towns had worked with English law since 1726. ‘What profit was to be expected from going to other systems for a model?’, he quipped. See GC Rankin, ‘The Indian Penal Code’, vol 60, Law Quarterly Review, 1944, p 37, at p 43. 24 Macaulay, Macleod, Anderson and Millett, A Penal Code prepared by the Indian Law Commissioners and Published by Command of the Governor General of India, Pelham Richardson, 1838. 25 Letter-Legislative Department no 15 of 1854 dated 5 April 1854 addressed to the Governor-General-in-Council.chapter of the Draft Code. 26 National Archives of India, Legislative Department, Act No. XLV of 1860. 27 Supplement to the Calcutta Gazette, dated 28 January 1857. 28 Section 1 of the Penal Code originally enacted stood as: ‘This Act shall be called the Indian Penal Code and shall take effect on and from the first day of May, 1861, throughout the whole of the territories which are or may become vested in Her Majesty by the Statutes 21 and 22 Victoria, Chapter 106, entitled ‘An Act for the better government of India,’ except the Settlement of Prince of Wales’ Island, Singapore and Malacca.’ 29 Act no. XLV of 1860. The Draft Penal Code remained as a draft for no less than 22 years probably due to the ‘extreme aversion to any changes which boldly and definitely replaced native by European institutions’. The great mutiny and unsettled conditions that prevailed in India also contributed to the delay. The end of the mutiny and the transfer of the government from the company to the Crown gave an extraordinary impetus to legislation. As a result of that impetus, amongst other measures, the Penal Code was passed and was brought into force from the 1 January 1862. The Penal Code did not become the law precisely in the shape in which it was drawn as it was subsequently revised by the Legislative Council and by law commissioners. For details see Sir James Fitzjames Stephen, A History of the Criminal Law of England, Burt Franklin, New York, 1883, pp 299-300. 30 The Indian Penal Code’, observed by Sir James Fitzjames Stephen, ‘may be described as the criminal law of England freed from all technicalities and superfluities, systematically arranged and modified in some few particulars (they are surprisingly few) to suit the circumstances of British India’. See Sir James Fitzjames Stephen, A History of the Criminal Law of England, vol III, Burt Franklin, New York, 1883, p 300. Whitley Stokes also opined that the Code’s ‘basis is the law of England, stripped of technicality and local peculiarities, shortened, simplified, made intelligible and precise’. See, Whitley Stokes, Studies, vol 1, p 126; see also GC Rankin, ‘The Indian Penal Code’, vol 60, Law Quarterly Review, 1944, p 37. 31 Sir James Fitzjames Stephen, A History of the Criminal Law of England, vol III, Burt Franklin, New York, 1883, at 299. 32 Lady Trevelyan, Miscellaneous Work of Lord Macaulay, vol 1, Harper, 1880, p 417. 33 Sir Henry Maine, Village Communities in the East and West, 1871, p. 115. Cited in GC Rankin, ‘The Indian Penal Code, vol 60, Law Quarterly Review, 1944, p 37, at p 47. 34 See Banga Darshan, Pous, 1279 BS, December-January, 1872-73. 35 Hari Singh Gour, Penal Law of British India, vol 1, fourth edn, Introduction, at p CLXXXVIII. 36 Madras Law Journal, vol 57, p 60. Cited in GC Rankin, ‘The Indian Penal Code’, vol 60, Law Quarterly Review, 1944, pp 49-50. 37 However, referring to Note ‘A’ to the Draft Penal Code wherein the commissioners in 1837 hinted that sentences might be decreased if prisons were better managed and expressed the hope that it would be shortly found practicable to reduce the terms of proposed imprisonment, Sir George C Rankin has not taken the criticism. Further, he reminded that the Code when prescribes punishments prescribes maximum amounts and that no court is in general obliged to pass any higher sentence than it thinks sufficient. Ibid, p 50. 38 Hindu Patriot, 29 January 1857. Cited in RC Nigam, Law of Crimes in India, Asia, London, 1965, p 24. 39 Sir James Fitzjames Stephen, A History of the Criminal Law of England, vol III, Burt Franklin, New York, 1883, p 322. CHAPTER 3 Constituent Elements of Crime Page 2 of 10 includes ‘a series of act s’ and the word ‘omission’ denotes ‘a series of omissions as a single omission’. A combined effect of ss 32 and 33 is that the term ‘act’ takes into its fold one or more acts or one or more illegal omissions. The IPC makes punishable omissions, provided they are illegal5 and have caused, intended to cause, or likely to cause, like act s, an actus reus.6 Death of a newly born child, for example, may be caused by a deliberate refusal to feed the baby. Here, the unlawful homicide—an act us reus—is caused not by any positive act (a deed of commission) but a negative act (an act of omission). It warrants criminal act ion as ‘event’ of the human conduct is not different from that caused by shooting. However, an act of omission attracts criminal liability only when a person is placed under duty to act recognised by the criminal law and he, with the requisite blameworthy mind, failed to fulfill it.7Such legal duties to act might arise out of relationship or contracts,8 or might be imposed by statutes.9 In Om Prakash v State of Punjab ,10 the Supreme Court was called upon to adjudge the propriety of conviction of the husband for attempting to kill his wife by deliberately failing to give her food. The accused, whose relations with his wife were strained, deliberately and systematically starved his wife and denied her food, for days together. With the help of his relatives, he also prevented her from leaving the house. Owing to continuous undernourishment and starvation, she was reduced to a mere skeleton. One day, however, she managed to escape from the house as her husband forgot to lock her room before leaving the house. She got herself admitted to a hospital. The doctor, who found her seriously ill, informed the police. After prolonged treatment and blood transfusion, she recovered. The police registered a case under s 307, IPC. The sessions court convicted him for the offence contrary to s 307 of the IPC. The Punjab High Court, confirming the conviction, observed: The food...was willfully and intentionally withheld to shorten the remaining span of her life. Law does not require an intention to cause death then and there. It is enough if the facts show that by withholding food to her, death would have resulted surely though gradually.11 The Supreme Court, appreciating the high court’s reasoning, confirmed the conviction of Om Prakash on the ground of his illegal omission. S 36, IPC stipulates that where an act or an omission constitutes an offence, the committing of the offence partly by an act and partly by an omission, would also constitute the same offence. Illustration to s 36 throws some light on the provision. A intentionally causes Z’s death, partly by illegally omitting to give Z food, and partly by beating Z. A has committed murder. The term ‘voluntarily’ is defined in s 39, IPC. It runs as under: Section 39. "Voluntarily".— A person is said to cause an effect "voluntarily" when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it. Illustration A sets fire, by night, to an inhabited house in a large town, for the purpose of facilitating a robbery and thus causes the death of a person. Here, A may not have intended to cause death; and may even be sorry that death has been caused by his act; yet, if he knew that he was likely to cause death, he has caused death voluntarily. The term ‘voluntarily’ as defined in this section shows that a person need not intend to cause the act ual effect caused, in order to be held to have voluntarily caused such an effect. If the effect is the probable consequence of the act done by him, then he is said to have caused it voluntarily. It, thus, makes no distinction between cases in which a person causes an effect designedly and cases in which he causes it knowingly or having reason to believe that he is likely to cause it.12Further, if a particular effect could have been avoided by due exercise of reasonable care and caution, then the effect of such negligent act is also said to have been ‘voluntarily’ caused.13 The question whether the effect of a particular act was caused voluntarily, is a question of fact, to be determined on the basis of the facts and circumstances of each case. Some of the factors that may be taken into consideration are: the nature of injury caused; the weapon used; force used; the part of the victim’s body affected etc.14 CONCOMITANT CIRCUMSTANCES Act to be Prohibited by Law CHAPTER 3 Constituent Elements of Crime Page 3 of 10 In order to create criminal liability, it is not sufficient that there is mens rea and an act ; the actus must be reus. However harmful or painful an event may be it is not act us reus unless criminal law forbids it. In other words, the act must be one that is prohibited or commanded by law. For example, if A had shot at B, but it missed him and instead killed a rabbit, it does not constitute murder. Thus, though there was mens rea i.e., the intention to kill B and there was also the ‘act’ of shooting, the resultant actus reus for murder which is the death of B, is not present. Similarly, a duly appointed executioner, who hanged a condemned prisoner till death with the intention of killing him, will not be criminally liable for the ‘intentional death’ of the prisoner. Act Should Result in Harm However, it is not all crimes which require that the act should result in some harm. In homicide, the required result is a pre- requisite in order to constitute an offence. Offences like treason, forgery, perjury and inchoate or incomplete crimes are per se offences, irrespective of whether they actually result in any harm or not. Thus, the causing of act ual harm may nor may not be a part of the actus reus. For instance, in the example mentioned above, where A missed his shot and killed a rabbit instead of B, the act will amount to an offence under s 307 IPC, of attempt to commit murder. Act to be Direct Cause of Harm Where the causing of harm is a requisite of an offence, then such harm should have a causal effect to the act. In other words, the harm caused must be a direct result of the act. It must be causa causans—the immediate cause, and it is not enough that it may be causa sine qua non—the proximate cause. Other Requirements of Law Sometimes, for an act in order to constitute an offence, some additional circumstances may be required by law. For instance, for the offence of perjury, the accused must have been sworn as a witness; for the offence of bigamy, the person must have contracted an earlier marriage; for treason, the offender must be a citizen of India or owe allegiance to the Indian state; for receipt of stolen property the goods must have been already stolen. The circumstances required may be inferred even by a negative fact, such as absence of consent in rape and in theft. ACTUS REUS Meaning The term actus reus has been given a much wider meaning by Glanville Williams in his Criminal Law. He says: When we use the technical term actus reus we include all the external circumstances and consequences specified in the rule of law as constituting the forbidden situation. Reus must be taken as indicating the situation specified in the actus reus as on that, given any necessary mental element, is forbidden by law. In other words, actus reus means the whole definition of the crime with the exception of the mental element and it even includes a mental element in so far as that is contained in the definition of an act. This meaning of actus reus follows inevitably from the proposition that all the constituents of a crime are either actus reus or mens rea.15 Actus reus includes negative as well as positive elements. For example, as stated earlier, the actus reus of murder is the causing of death of a person. It also includes circumstances, such as the person whose death has been caused, was not as a consequence of a sentence of death given to him or that the death was caused within the territorial jurisdiction of the state. The requirements of act us reus varies depending on the definition of the crime. Actus reus may be with reference to place, fact, time, person, consent, the state of mind of the victim, possession or even mere preparation. Place CHAPTER 3 Constituent Elements of Crime Page 4 of 10 In the offence of criminal trespass, house-breaking or in the aggravated forms thereof, the act us reus is in respect of place (ss 441-462, IPC). Time In the offences of lurking house-trespass or house-breaking by night in order to commit an offence or after preparation for hurt, assault or wrongful restraint etc (ss 456-458, IPC), the actus reus is in respect of both place and time. Person In offences of kidnapping and abduction, procuring of a minor girl etc., the act us reus is in respect of the person (ss 359-374, IPC). Consent In the offence of rape, consent is the actus reus. State of Mind of the Victim In offences relating to religion (ss 295-298, IPC), or where rape is committed when consent has been obtained by putting the victim in fear of death or of hurt (s 375, thirdly, IPC), the actus reus is with reference to the state of mind of the victim. Possession Possession of stolen property constitutes the act us reus in certain offences (ss 410-412, IPC). Preparation Section 399, IPC, makes preparation to commit dacoity an offence; therefore, preparation itself constitutes the actus reus. CAUSATION IN CRIME An event is very often the result of a number of factors. A factor is said to have caused a particular event, if, without that factor, the event would not have happened. Thus, a man is said to have caused the act us reus of a crime, if, that actus would not have occurred without his participation in what was done. Some causal relationship has to be established between his conduct and the prohibited result. A man is usually held criminally liable only for the consequences of his conduct as he foresaw, (or in crimes of negligence, he ought to have foreseen). As stated earlier, the act must be the causa causans, i.e., the immediate cause of the effect. When the facts are direct and simple, then establishing the causal nexus between the act and the effect may not be difficult,16 as for instance, in a case of a person shooting another person and thereby killing him. The causation can also be without any direct physical act. If the victim asks his way on a dark night and the accused with the intention of causing his death, directs him to a path that he knows will bring him to a cliff edge, and the victim suffers a fatal fall, this is clearly murder, though the accused had done nothing more than utter words.17 This can be true in cases of abetment, incitement and conspiracy. In the instances stated above, it is not difficult to establish the direct result between the cause and the effect. The difficulty arises only in cases of multiple causation, where it is difficult to establish the imputability. The following example given by Harris in his Criminal Law18 will make the principle clear. A, intending to kill B, shoots at B but only wounds him very slightly. A clearly has the requisite mens rea for murder, that is, he foresees and desires B’s death. Now let us assume that on his being taken to the hospital in an ambulance, a piece of masonry from a building falls on the ambulance and kills B; or, alternatively, that B has a rare blood disease which prevents his blood from coagulation so that CHAPTER 3 Constituent Elements of Crime Page 7 of 10 Another example is where the victim died of hospital fever, but a contributory factor was the weakness caused by his injuries, so that he would not have died if it had not been for his weakness. Probably, the attacker would then be guilty of criminal homicide (murder or manslaughter), for, on these facts, there is a medical (and not merely a fortuitous) connection between the wound and death. It is like the case of a wound turning gangrenous and causing death, where the wounding is clearly the cause of death.30 PRINCIPLE OF REASONABLE FORESIGHT A man is said to intend the natural consequences of his act. The principle of reasonable foresight is just a restatement of that principle. In IPC, the definition of ‘voluntarily’ itself embodies this principle, for a man is said to have voluntarily caused an effect, if, at the time of doing the act, he knew or had reason to believe that it is likely to be caused. The illustration to s 39, IPC, explains the principle. This principle is also built into the IPC in the thirdly and fourthly of s 300. As per thirdly, a person who causes such bodily injury as is sufficient in the ordinary course of nature to cause death, is guilty of murder. Fourthly of s 300, IPC, states that if a man does an act which is imminently dangerous that in all probability it must cause death (and commits such act without any excuse for incurring the risk), and if death is caused, then he is guilty of murder. The two basic tenets that have to be established in cases arising under this principle are: first to establish that death, grievous hurt or whatever the offence that is to be established is the natural consequence of the act of the offender; and secondly, it has to be established that any reasonable man would be able to foresee that the death, grievous injury, etc, is likely to be the natural consequence of his act. UNEXPECTED INTERVENTIONS Unexpected interventions or twists in the act s, which cause the result, can create complications while fixing causation. However, if otherwise, the culpability is clear, the mere fact that there were unexpected interventions or twists, cannot exonerate the person from criminal liability. But, it may have effect on the degree or gravity of culpability, depending on the facts and circumstances of the case. D prepares a poisoned apple with the intention of giving it to his wife, V, to be eaten the next day. V finds the poisoned apple in the meantime, eats it and dies. Or D is cleaning his gun with the intention of shooting V the next day. The gun goes off accidentally and kills V. It would obviously be too harsh to convict D of murder in the second case; his liability is for manslaughter. As to the first case, the answer may depend on the more detailed facts. If D had put the poison by his wife’s bedside, intending to administer it to her when she awoke, the jury should be allowed to find that he has launched himself sufficiently far on his ghastly plan to be guilty of an attempt, and therefore (according to Smith’s suggestion) to be guilty of murder, if, the wife unexpectedly woke up and drinks the poison herself. If, on the other hand, the poisoned drink is still in the kitchen, the result should probably be different.31 In Joginder Singh v State of Punjab ,32 the deceased Rupinder Singh teased the sister of the accused. In retaliation, the two accused went to Rupinder’s house and shouted that they had come to take away the sister of Rupinder Singh. In the meantime, the cousins of Rupinder Singh intervened. One of them was given a blow on the neck by the accused. Meanwhile, Rupinder Singh started running towards the field. The accused started chasing him as a result of which Rupinder Singh jumped into a well due to which he sustained head injuries which made him unconscious and thereafter he died due to drowning. The Supreme Court held that the accused were about 15 to 20 feet from Rupinder Singh, when he jumped into the well. There was no evidence to show that the accused drove Rupinder Singh into the well or that they left him no option but to jump into the well. Under these circumstances, it was held that the accused could not have caused the death of Rupinder Singh and hence, they were entitled to be acquitted of the charge of murder. ‘If we were satisfied’, their Lordships of the Supreme Court CHAPTER 3 Constituent Elements of Crime Page 8 of 10 observed, ‘that [Joginder Singh and Balwander Singh] the accused drove him to jump into the well without the option of pursuing any other course, the result might have been different’. This aspect came up for consideration before the Supreme Court in Harjinder Singh v Delhi Administration .33 In this case, the accused was trying to assault one Dalip Singh and the deceased intervened. The accused finding himself one against two, took out a knife and stabbed the deceased. At that stage, the deceased happened to be in a crouching position presumably to intervene and separate the two. The knife pierced the upper portion of the left thigh. The stab wound was oblique and it cut the femoral artery and vein under the muscle, which are important blood vessels of the body, and the cutting of these vessels would result in great loss of blood and would lead to immediate death or death after a short duration. The Supreme Court held that from the evidence, it was proved that it was not the intention of the appellant to inflict that particular injury on that particular place. In view of this, it was held that thirdly of s 300, IPC, would not apply. The accused was convicted under s 304, IPC. Intervention of an Innocent Person A person will be held fully responsible if he had made use of an innocent agent to commit a crime. Examples are where A secretly puts poison into a drink which he knows or expects B will offer to C or where A recklessly leaves a dangerous machinery which may cause harm to person or property, through being moved inadvertently by someone else, or otherwise.34 An engineer who deserted his post at a colliery, leaving an ignorant boy in charge of the engine, who declared himself incompetent to manage it, was held guilty of manslaughter of a collier who was killed because the boy failed to stop the engine properly.35 Intervention of Another Person In cases, where another person has intervened and the latter’s action was the immediate and direct cause of the crime, the original wrongdoer whose act had merely given rise to the occasion of the act of the criminal, will be absolved from liability. But there should be clear evidence to show that the first man’s act had no direct bearing on the result. For example, if one person was engaged in murderously beating another to death and a stranger, without being requested, were to rush in and add some more blows so that the victim’s death was more speedily brought about, both would be guilty of murder and the first man could not be allowed the defence that it was the second assailant’s strokes that finally ended the victim’s life. The case of R v Hilton 36 may be cited as an example, where the defence of intervention was successful. There, the accused was in charge of a steam-engine, but all of a sudden he stopped the engine and went away. During his absence, some unauthorised person set the engine in motion, resulting in the death of the deceased. The court held that the death was the consequence, not of the act of the prisoner, but of the person who set the engine in motion after the prisoner had gone away. Professor Kenny has pointed out that the stronger reason for acquittal would have been that the prisoner had not expected any harm from his breach of duty, as was really the case of a fireman in the London Fire Brigade, who was absent from his post in charge of a fire-escape when the deceased had lost his life in a fire.37 The accused will be acquitted even in cases where the victim had intervened against himself. Thus, in R v Horsey ,38where the accused had set fire to a stack of straw and the deceased was found burnt in another portion of the stack, the accused was set free. Justice B Bramwell told the jury that if they were not satisfied that the deceased was in the enclosure at the time the prisoner set fire to the stack, but came in afterwards, then as his own act intervened between the death and the act of the prisoner, his death could not be the natural result of the prisoner’s act. CONTRIBUTORY NEGLIGENCE The doctrine of contributory negligence of the victim has no place in criminal law.39 It does not play any role in the determination of the guilt of the doer. However, it can be a factor for consideration in determination of sentence. It may be a just mitigating factor. The plea that victim has contributed to the injury caused by his own negligence, therefore, affords no defence against a charge under s 279 or s 304A of the IPC.40 A driver, therefore, is expected to anticipate reasonably foreseeable negligent act of road users.41 Occasionally, the contributory fault of the victim may be so great that the defendant’s act is held not to be the imputable cause of the harm. An illustration is the ‘exhaustion of danger’ principle, where the risk created by the defendant is at the end before the victim commits the careless act. When, for example, a pedestrian suddenly crosses a road without taking note of the approaching vehicle, he takes the risk of being knocked down without the driver being aware of it. The driver, if he knocks him CHAPTER 3 Constituent Elements of Crime Page 9 of 10 down, cannot be held guilty for his negligence.42A pedestrian, alighted from jeep, while crossing highway impatiently at night, collided with a motor cycle and died. The accused was acquitted for causing death by rash and negligent act as the deceased was main contributory to the incident. The court further observed that on the highway, the vehicles have right of way and they legitimately move at the high speed and if a person desires to cross the highway, he has to be careful. If a person does a suicidal act, as the present one, the driver of the vehicle cannot be held responsible for the consequences.43 Similarly, a tempo driver was acquitted of charges killing a cyclist, who, with a pillion rider, was cycling in center of the road.44 1 The expression ‘actus reus’ has apparently been coined by Prof Kenny in the first edition of his Outlines of Criminal Law in 1902. See Jerome Hall, General Principles of Criminal Law, second edn, Bobbs-Merrill, New York, 1960, p 222, fn 24. 2 Mahadeo Prasad v State of West Bengal AIR 1954 SC 724. Exception to the rule is offences of strict liability. 3 However, a view has been expressed that a crime is made up of three ingredients, act us reus, mens rea and (a negative element) absence of a valid defence. See DJ Lanham, ‘Larsonneur Revisited’ (1976) Criminal Law Review 276. 4 See Woolmington v DPP [1935] AC 462; R v Clarke [1972] 1 All ER 219; Hill v Baxter [1958] 1 QB 277; Bratty v Attorney General for Northern Ireland [1961] 3 All ER 523(HL) ; R v Quick & Padison [1973] 3 All ER 347(CA) ; R v Sullivan [1983] 2 All ER 673(HL) ; R v Burgess [1991] 2 All ER 769(CA) and Patraswar v State of Assam (1989) Cr LJ 196(Gau). 5 S 43 of the Penal Code stipulates that the word ‘illegal’ is applicable to everything which: (1) is an offence, (2) is prohibited by law, and (3) furnishes ground for a civil action. And a person is said to be ‘legally bound to do’ whatever it is ‘illegal in him to omit’. Therefore, an illegal omission would apply to omissions of everything which is legally bound to do. 6 See, Macaulay, Macleod, Anderson and Millett, A Penal Code prepared by the Indian Law Commissioners and Published by Command of the Governor General of India, Pelham Richardson, 1838, Note M, p 104. 7 Benoychandra v State of West Bengal (1984) Cr LJ 1038(Cal). 8 See for example, s 491, IPC. 9 Code of Criminal Procedure 1973, s 125. 10 AIR 1961 SC 1782 [LNIND 1961 SC 201]. 11 AIR 1959 Punj 134, para 45. 12 See Abdul Majeed v State of Kerala (1994) Cr LJ 1404(Ker) ; Meeru Bhatiaprasad v State, (2002) Cr LJ 1674(Del), 94 (2001) DLT 597. 13 Barendra Kumar Ghosh v King Emperor AIR 1925 PC 1 [LNIND 1924 BOM 206], (1925) Cr LJ 431(PC). 14 Bhaba Nanda Sarma v State of Assam AIR 1977 SC 2252 [LNIND 1977 SC 358], (1977) Cr LJ 1930(SC). 15 Glanville Williams, Criminal Law: The General Part, second edn, Stevens & Sons, 1961, p 18. 16 For difficulties in identifying causation, see Glanville Williams, ‘Criminal Law - Causation’, Cambridge Law Journal, 1976, p 15; Jerome Hall, General Principles of Criminal Law, second edn, Bobbs-Merrill, New York, 1960, chapter on ‘Causation’, and Jerome Hall, Studies in Jurisprudence and Criminal Theory, Oceana, New York, 1958, ch X, ‘Causation’. 17 Glanville Williams, Textbook of Criminal Law, second edn, Stevens & Sons, 1983, p 378. 18 Harris’s Criminal Law, Ian Mclean & Peter Morrish (eds), 22nd edn, Sweet & Maxwell, 1973, p 22. 19 S N Hussain v State of Andhra Pradesh AIR 1972 SC 685; State of Gujarat v Haiderali AIR 1976 SC 1012 [LNIND 1976 SC 36]; Binoy Chandra v State of West Bengal (1984) Cr LJ 1038(Cal) ; Balwant Singh v State of Punjab 1994 SCC 844(Cri) ; Prafulla Kumar Roat v State (1995) Cr LJ 1277(Ori) ; Shiv Dev Singh v State (Delhi) (1995) Cr LJ 2142(Del). 20 Md Rangawalla v State of Maharashtra AIR 1965 SC 1616 [LNIND 1964 SC 355]. 21 AIR 1968 SC 829 [LNIND 1967 SC 354], (1968) Cr LJ 1013(SC). 22 AIR 1972 SC 1150 [LNIND 1972 SC 137]. 23 However, a driver is expected to anticipate reasonably foreseeable negligent act to road users as contributory negligence has no application in criminal law. See Pyarejan v State (1972) Cr LJ 404(Mys). 24 Glanville Williams, Textbook of Criminal Law, second edn, Stevens & Sons, 1983, p 385. 25 Re San Pai(1936) 14 Rang 643; Re Abor Ahmed(1937) Rang 384(FB). 26 AIR 1964 SC 900 [LNIND 1963 SC 14], (1964) 1 Cr LJ 727(SC). CHAPTER 4 Mens Rea Page 2 of 15 The fact that mens rea has been made central to criminal liability, also includes that every person has the capacity to choose between right and wrong. Once a person makes a choice, he has to take the responsibility for the same. Every person is born free and has the freedom to live in a free manner. Every individual has the freedom to act freely. This freedom is not without its concomitant expectations and obligations. Freedom to act freely also means that every person has the capacity and ability to choose between right and wrong, good and evil. From this, it follows that every person who has the capacity to discern and discriminate, has a moral duty to choose right over wrong and good over evil. Once a person exercises his free will to do or not to do an act, then he is also responsible and liable for the consequences. Its Objective The object of the law is always to punish a person with a guilty mind. It does not want to put behind bars an innocent person who may have had the misfortune of being involved in an incident and event, which he did not have the intention of participating in. That is why one would notice that many penal statutes, which define or describe what is an offence, very often bring in the mental element to the act by using the words, ‘intentionally’, ‘voluntarily’, ‘willfully’, ‘knowingly’, ‘reason to believe’ etc. These words have been used in the different definitions of crime to indicate the state of the mind of the person at the time of commission of the offence. The existence of the guilty mind or mens rea at the time of commission of the act us reus or the act alone will make the act an offence. For instance, the IPC is replete with words which indicate the mental state of the mind. Chapter XVI of the IPC defines offences affecting the human body. Culpable homicide2 is defined as ‘whoever, causes death by doing an act with the intention of causing death,...’. Culpable homicide becomes murder,3‘if the act by which the death is caused is done with the intention of causing death’. The importance of mens rea or intention can be understood when we consider its application to factual situations. For instance, A slipped as he walked and fell. As he fell, he lost balance and pulled down B with him. B hit his head against the wall, sustained head injuries and died. Is A guilty of murder? A satisfies one portion of the definition of murder, which is doing an act which causes death. But still it does not constitute the offence of murder because another essential ingredient of the offence of murder, viz, the intention to cause death, is absent. Hence A is not guilty of murder. Similarly, if a person intends to dishonestly take a movable property out of the possession of a person without his consent, it amounts to theft.4But if a person takes a movable property from a person without his consent, but by mistake, the act does not constitute the offence of theft. For instance, A puts on B’s shoes by mistake, believing it to be his. Is A guilty of committing theft? A has satisfied one ingredient of the offence viz, taking away the moveable property of B, which is the pair of shoes, without B’s consent. However, there is another essential ingredient to constitute the offence of theft. The taking away of the moveable property must be accompanied by the mental element of dishonest intention. Only if dishonest intention is present, A will be guilty of committing theft. Intentionally joining an unlawful assembly,5 harbouring rioters knowing fully well that they are rioters,6 fraudulently, dishonestly or with intent to injure, making a false claim in a court,7 fraudulent use of weighing instrument knowing it to be false,8 uttering words with deliberate intention to wound religious feelings,9 are all offences under the IPC. It can be noticed that every overt or outward act or the act us reus has also to be accompanied by a guilty mind or mens rea, which is also an essential ingredient of a crime. The element of mens rea as an essential ingredient of a crime is also approved by the growing modern philosophy of penology. Modern day criminal jurisprudence no longer accepts retribution as the main object of criminal law. Today’s emphasis is on reforming the criminal and rehabilitating him. The object is that punishment should fit the offender and not merely the offence. Going back to the analogy of B who stamped A’s foot by mistake and C who did it on purpose, it may be noticed that A’s reaction was not based on the act or the act us reus, which is the injury to A’s foot, but on the basis of the intention of the offender, i.e., B or C as the case may be. Such an approach to sentencing of offenders is possible only if, apart from the crime or the actus reus per se, the mental element, the intention or the mens rea of the offender is also taken into consideration. MENS REA IN THE INDIAN PENAL CODE 1860 The IPC sets out the definition of offences, the general conditions of liability, the conditions of exemptions from liability and punishments for the respective offences. Lord Macaulay and his colleagues have not used the common law doctrine of mens rea in defining these crimes. However, they preferred to import it by using different terms indicating the required evil intent or mens rea as an essence of a particular offence. Guilt in respect of almost all the offences created under the IPC is fastened either on the ground of intention, or knowledge or reason to believe. Almost all the offences under the IPC are qualified by one or the other words such as ‘wrongful gain or wrongful loss’,10‘dishonestly’,11‘fraudulently’,12‘reason to believe’,13‘criminal knowledge or intention’14‘intentional cooperation’,15‘voluntarily’,16‘malignantly’,17‘wantonly’,18 maliciously.19 All these words CHAPTER 4 Mens Rea Page 3 of 15 indicate the blameworthy mental condition required at the time of commission of the offence, in order to constitute an offence.20 Thus, though the word mens rea as such is nowhere found in the IPC, its essence is reflected in almost all the provisions of the Penal Code. Every offence created under the IPC virtually imports the idea of criminal intent or mens rea in some form or other.21 Further, ch IV of the IPC deals with ‘General Exceptions’, wherein acts which otherwise would constitute offences, cease to be so under certain circumstances set out in this chapter. The chapter on General Exceptions, in ultimate analysis, enumerates the circumstances that appear incompatible with the existence of the required guilty mind or mens rea and thereby exempts the doers from criminal liability.22 For instance, a crime committed by a person under mistake of fact, or by a child below seven, or a mentally deranged person and so on, does not constitute offence, because in all such cases, the mental element or the mens rea is absent. Thus, the chapter on General Exceptions, though negatively, recognises the common law doctrine of mens rea. In fact, all the General Exceptions are illustrations of the recognition of the concept of mens rea in the IPC. Against this background, a question as to whether the maxim actus non facit reum nisi mens sit rea, in general, and of the common law doctrine of mens rea as an independent doctrine, in particular, is relevant in the interpretation of the provisions of the IPC deserves our attention. However, there seems to be no unanimity amongst jurists in their responses to the query. Referring to actus non facit reum nisi mens sit rea, Mayne observed: Under the Penal Code such a maxim is wholly out of place. Every offence is defined and the definition states not only what the accused must have done, but the state of his mind with regard to the act when was doing it. It must have been done ‘knowingly’, ‘voluntarily’, ‘fraudulently’, ‘dishonestly’, or the like ....23 Ratanlal & Dhirajlal, in a tone similar to that of Mayne, observed: The maxim actus non facit reum nisi mens sit rea has, ... no application in its technical sense to the offences under the Penal Code, as the definitions of various offences contain expressly a proposition as to the state of mind of the accused.24 In Ravule Hariprasada Rao v State ,25 the Supreme Court ruled that unless a statute either clearly or by necessary implication rules out mens rea as a constituent element of a crime, a person should not be held guilty of an offence unless he had guilty mind at the time of commission of the act. The Apex Court reiterated it in State of Maharashtra v Mayer Hans George ,26 wherein it, inter alia, held that the common law doctrine of mens rea is not applicable to statutory crimes in India. However, K Subbarao J, after examining a plethora judicial dicta dealing with the applicability of the doctrine of mens rea to statutory crimes, in his dissenting opinion, observed that though it is a well settled principle of common law that mens rea is an essential ingredient of a criminal offence, a statute can exclude it. But it is a sound rule of construction adopted in England and also accepted in India to construe a statutory provision creating an offence in conformity with the common law rather than against it unless the statute expressly or by necessary implication excluded mens rea. There is, thus, a presumption that mens rea is an essential ingredient of a statutory offence. It, nevertheless, may be rebutted by the express words of a statute creating the offence or by necessary implication.27 Subsequently, Justice K Subbarao, speaking for the Supreme Court, reiterated this in Nathulal v State of Madhya Pradesh 28 and Kartar Singh v State of Punjab ,29 wherein the court held that the element of mens rea must be read into statutory penal provisions unless a statute either expressly or by necessary implication rules it out. However, this general or traditional rule that mens rea is an essential element in IPC offences is not without its exceptions. Like all other statutes, the deciding factor on whether mens rea is required or not, depends on the language of statute and the intention of the legislature as gathered from the statute. S 292, IPC makes the selling, hiring, distributing, publicly exhibiting, importing, exporting etc of obscene books, pamphlets, writings, drawings etc an offence. In the case of Ranjit D Udeshi v State of Maharashtra ,30 a person was prosecuted for selling a book by the name Lady Chatterley’s Lover, a popular book written by DH Lawrence. The accused pleaded that he had no knowledge of the contents of the book and hence did not have the necessary mens rea. The court rejected this contention and held that as s 292 of the Code, unlike in several other sections, does not contain the words ‘knowingly’, knowledge of obscenity is not an essential ingredient of the offence under s 292.31 It also ruled that the liability under the section is strict and hence no mens rea is required. INTENTION Meaning of Intention Intention is a term, which is very difficult to define. It is not defined in the Penal Code. It is a common term known to CHAPTER 4 Mens Rea Page 4 of 15 everybody, but at the same time, it defies a precise definition. It can be variously said to mean the object, purpose, the ultimate aim or design behind doing an act. Intention is the conscious exercise of the mental faculties of a person to do an act, for the purpose of accomplishing or satisfying a purpose.32 Intention, therefore, is usually used in relation to the consequences of an act, and not in relation to the act itself. A person clearly intends a consequence if he wants that consequence to follow from his act ion.33 The idea of ‘intention’ in law is not always expressed by the words ‘intention’, ‘intentionally’ or ‘with intent to’. It is expressed also by words such as ‘voluntarily’, ‘willfully’, ‘deliberately’, ‘deliberate intention’, ‘with the purpose of’, or ‘knowingly’. All these varied expressions find place in the various sections of the IPC. Section 39 of the 1860 defines ‘voluntarily’ thus: 39."Voluntarily". — A person is said to cause an effect "voluntarily" when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it. Illustration A sets fire, by night, to an inhabited house in a large town, for the purpose of facilitating a robbery and thus causes the death of a person. Here, A may not have intended to cause death; and may even be sorry that death has been caused by his act; yet, if he knew that he was likely to cause death, he has caused death voluntarily. The definition itself is rather peculiar, as it defines the term in relation to the effect caused by the act rather than the act itself. The word ‘voluntarily’ is to be understood in relation to causation of effects and not to doing of acts from which those effects result.34 The illustration to the section is self-explanatory. The provision and the illustration thereof have not defined the word ‘voluntarily’ in the commonly understood meaning of the term. It has really imported the concept of English law that ‘a man is presumed to intend the natural or probable consequences of his own act.’ For example, if a man drives in a rash and reckless manner resulting in an accident causing the death of a person, he cannot plead innocence by stating that he never intended to cause the death of the person. It may be true in the strict sense of the term. But a reckless driver should know that reckless driving is likely to result in harm and can even cause death of the persons on the road. So, by virtue of the definition of the word ‘voluntarily’ in the IPC, a reckless driver, who causes the death of a person, can be presumed or deemed to have intended to cause the death of the person. However, the sweep of the word ‘voluntarily’ is bigger than that of the word ‘intentionally’. The act voluntarily done in effect and substance means (a) act done intentionally, (b) act done with the knowledge of end result being a crime, (c) act done when the doer had reason to believe that the act us reus would be an offence. Section 298 of the makes the uttering of words or making gestures or exhibitions with deliberate intent to wound the religious feelings punishable. The words ‘deliberate intention’ mean premeditated intention to wound the religious feelings.35 On a plain reading of the section, however, the words ‘deliberate’ and ‘intent’ seem synonymous. Explaining the term ‘deliberate intent’, drafters of the Penal Code observed: We do not conceive that any person can be justified in wounding with deliberate intention the religious feelings of his neighbors by words, gestures or exhibitions. A warm expression dropped in the heat of controversy, or an argument urged by a person, not for the purpose of insulting and annoying the professors of a different creed, but in good faith for the purpose of vindicating his own, will not fall under the definition contained in this clause. The speech or gestures etc, which is punishable as an offence by this clause must be advisedly and deliberately intended to wound the religious feelings of some person.36 So, while describing the scope of the words ‘deliberate intent’, authors of the IPC have clarified that there must not only be intent, but it should also be pre-planned, pre-conceived and not a momentarily caused intention. For instance if A, a Hindu, were to enter into a casual conversation with B, a Muslim and the conversation becomes heated and in the course of that heated debate, he is angered by some comments made by B, and passes a derogatory comment about Muslims in general. A has uttered a word with intent to wound the religious feelings of B, a Muslim. However, since his intention was not deliberate, or in other words, he did not start the conversation with B with the pre-meditated intention to hurt his feelings, it can be held that A did not commit an offence under this section, because though there was intent, it was not deliberate. Yet another variation of the mental element of intention is knowingly and negligently doing or omitting to do an act. Sections 285, 286 and 287 make knowingly or negligently omitting to take sufficient care so as not to cause harm to human life in respect of possession of poisonous substance, fire, combustible matter and explosive substances an offence. CHAPTER 4 Mens Rea Page 7 of 15 be said to strike terror in the people or any section of the people. Therefore, in the absence of an intention to strike terror, even if the consequence of their act resulted in creating terror, it acquitted the accused. In Hitendra Vishnu Thakur v State of Maharashtra ,63 the court once again emphasised that for an offence under TADA, an act must be committed with the intention and motive to create terror as contemplated under the Act. Where the causing of terror is only the consequence of the criminal act, but was not the intention, an accused cannot be convicted for an offence under TADA. To bring a charge under TADA, the terror or panic etc must be act ually intended with a view to achieve the result as envisaged under the Act and not by merely an incidental fall out or a consequence of the criminal act. Every crime, being a revolt against the society, involves some violent activity, which results in some degree of panic or creates some fear or terror in the people or a section thereof, but unless the panic, fear or terror was intended and was sought to achieve the objectives as defined under the TADA, an act would not come within the ambit of TADA. These cases were followed in State of Tamil Nadu v Nalini .64This case was in respect of the assassination of Rajiv Gandhi, the former Prime Minister of India. The case of the prosecution was that killing of Rajiv Gandhi was a terrorist act. The Supreme Court held that the entire evidence on the record pointed towards the fact that the Liberation Tigers of Tamil Ealem (LTTE), a terrorist organisation act ive in Sri Lanka, had conspired to kill Rajiv Gandhi, because he had played a key role in the Indo-Sri Lankan Accord. So, the intention of the accused was only to kill Rajiv Gandhi and not to commit a terrorist act by overawing the Government of India. Though, it could be said that terror was struck by the assassination of Rajiv Gandhi, there was no evidence to establish that it was the intention of the accused to strike terror. The court ruled that in order to be an offence under TADA, overawing the government cannot be the consequence, but it has to be a primary object. Burden of Proof Every person accused of a crime is presumed to be innocent, unless and until proved guilty by the prosecution. This means that in every criminal proceeding, the law starts off with a presumption in favor of the accused person that the concerned person is innocent of the crime accused of. Starting from this presumption of innocence of the accused, it is always for the prosecution to establish beyond reasonable doubt all the essential ingredients of the crime including the mens rea to prove the guilt of the accused. Thus, the burden of proving the guilt of the accused rests solely and entirely on the prosecution. This is what is meant when it is said that the burden of proof is on the prosecution. This burden generally does not shift. An accused person cannot be asked to prove his innocence. But when a clause for presumption of mens rea exists in the statute, then the job of the prosecution is made easier. The prosecution only has to prove that the accused committed certain act s. Once that is proved, the statutory presumption of mens rea or guilty mind steps in and the accused is presumed to be guilty. But this presumption is always a rebuttable presumption, i.e., the accused person will be given an opportunity to prove that though he had committed certain acts, it was done innocently and without any criminal intent. To this extent, the burden on the prosecution to prove the guilt of the accused beyond reasonable doubt is shifted to the accused. It is for the accused to establish his innocence, though, the standard of proof required is not the same. It is no doubt, very difficult to prove the existence of mens rea by direct or positive evidence. Courts have realised this difficulty and it has been held that it is not necessary for the prosecution to prove the existence of mens rea by positive evidence.65 It is open to the prosecution to prove the guilty mind of the accused by the general conduct of the accused.66 There is no standard yardstick by which the application of the principle of strict criminal liability or the non-requirement of mens rea as an element of an offence is applied. It may not be quite possible to evolve any straight jacket formula for the requirement of mens rea. The considerations are many and may also vary depending on the nature of the legislation. One has to keep in mind the nature of the statute, the object of the statute, what is the mischief it sought to remedy and so on and so forth. However, like any legislative power, it is not without its limitations. Ultimately, every law has to be tested on the corner stone of the Constitution of India. Article 21 of the Constitution guarantees that no person shall be deprived of his life and liberty without following the procedure established by law. In Maneka Gandhi v Union of India ,67 it has been held that procedure established by law does not mean any procedure, but a fair and just procedure. It is on the touchstone of art 21 that the fairness of any statute has to be tested. PART B PUBLIC WELFARE OFFENCES AND MENS REA Mens rea as an essential element or ingredient of crime, though an universally accepted principle, is not without its limitations. CHAPTER 4 Mens Rea Page 8 of 15 In the last few decades, an entire range of social or public welfare legislations have been conceived in such a manner that the law makes the mere omission or commission of acts punishable. In other words, no mens rea or legal fault is required for imposing criminal liability.68 It must be appreciated that one is living in a world of machines. Industrialisation is widespread and growing rampantly. High- powered machines are the order of the day. Very often, these machines are dangerous and may pose a health hazard to the worker employed. The experience of the Bhopal Gas tragedy69showed the world that compromising on safety standards is the first thing that industries do to cut costs. In respect of hazardous industry, the threat may not be just to the workers of the factory as seen in Bhopal, but also to persons residing in and around that area. So, it is in the interest of larger good that there are laws, which lay down standards and regulate the functioning of the industries. For instance, the Factories Act 1948, stipulates that machinery should be adequately fenced; there must be signboards which indicate danger areas etc. It further provides that minimum facilities like drinking water, separate toilets for men and women, dining rooms, rest rooms, safety clothing etc are provided to the workers employed in factories. This Act is labour welfare legislation and compliance with its provisions is essential. So, for a violation of the Act, mens rea is not necessary. The management of the factory is responsible to comply with the provisions of the Act and it is liable for breach, even if there is no mens rea or guilty mind. There are a host of other labour laws like the Minimum Wages Act 1948, the Payment of Wages Act 1936, the Employees Provident Fund Act 1952, the Employees State Insurance Act 1948, for which mens rea may not be necessary. The state, in order to ensure that the public at large is not put to risk or cheated in the profit making ventures of the industries, has enacted Acts such as the Prevention of Food Adulteration Act 1954,70 the Essential Commodities Act 1955.71 Courts have held that mens rea is not essential for offences under these laws. Courts have taken similar view in respect of the Foreign Exchange Regulation Act 1947,72(Now Foreign Exchange Management Act, 1999 (42 of 1999)) designed to safeguard and conserve foreign exchange which is essential to safeguard the economy; the Protection of Civil Rights Act 1955,73 and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989,74 social legislations enacted to protect the rights of dalits or the Scheduled Castes and Scheduled Tribes; the Contempt of Courts Act, 1971,75 which recognises the inherent power of courts to punish persons who obstruct or interfere with the administration of justice. The necessity for mens rea has been dispensed with in respect of social or public welfare legislations. All these laws have been enacted for the larger good of the society. Insisting upon the existence of mens rea to punish persons for violation of these enactments, may frustrate the purpose of the Acts and the objects for which they have been enacted. The IPC deals with the traditional common law offences that deal with offences against the person, property, state and public morals. All these offences consist of specific acts of aggression that have been recognised as crimes per se or mala in se. But these public welfare offences are creations of the statutes. The purpose of these Acts is regulatory. Imposing a penal liability is merely a mode of enforcing the regulations. Courts have also justified the non-requirement of mens rea on the grounds that many of these Acts impose only payment of fines as punishment or even if imprisonment is provided, very rarely do courts award it. Moreover, conviction for committing these public welfare offences does not attach to itself the same kind of social stigma and damage to reputation that for example, a conviction under the IPC would attract. It is quite interesting to note that the concept of strict liability or the liability for the negative consequences of any act, regardless of fault in criminal law, has grown parallel to the concept of strict liability and vicarious liability in civil law like under the Motor Vehicles Act 1988, the Workmen’s Compensation Act 1923 etc. It has always been the prerogative of the legislature to make laws, which includes obviously the power to define what constitutes a crime. It can decide what are the elements of a particular offence. In doing so, the legislature is well within its power to legislate that in respect of a particular offence, the existence of mens rea is not an essential requirement. But curiously, the legislatures have taken the easy way out. In most of the public welfare statutes, nowhere is it stated that mens rea is not an essential element of the offence concerned. Nor is it stated that mens rea is an essential ingredient of the crime. This silence has left the field wide open for judicial interpretation. So, the creation of judge made law has not been without its share of confusions and contradictions. However, it may be pointed out that the absence of mention of intent or mens rea in an enactment does not necessarily mean that the statute automatically excludes mens rea. Courts have held that mens rea, as an essential element of crime, is so much an integral part of the definition of crime itself that it needs no specific mention. A Court has to presume its requirement for imposing criminal liability, unless a statute, expressly or by necessary implication, excludes mens rea. Its exclusion cannot be CHAPTER 4 Mens Rea Page 9 of 15 inferred simply because a statute intends to combat a grave social evil or to attain socio-economic welfare. Delving into the implied exclusion of mens rea in s 7 of the Essential Commodities Act of 1955, the Supreme Court in Nathulal v State of Madhya Pradesh 76 held that: Mens rea is an essential ingredient of a criminal offence. ... [U]nless the statute expressly or by necessary implication excluded mens rea. The mere fact that the object of the statute is to promote welfare act ivities or to eradicate a grave social evil is by itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of an offence. Mens rea by necessary implication may be excluded from a statute only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated. In determining whether a statutory provision does or does not create an offence of strict liability the following considerations seem to be relevant: (1) phraseology of the statutory provision creating an offence of strict liability, particularly expressions indicating or excluding the mental element required, (2) object of the statute, (3) the nature of public purpose purportedly preserved by the statute, and (4) the nature of the mischief at which the provision or statute is aimed and whether the imposition of strict liability will tend to suppress the mischief, although the strict liability should not be inferred simply because the offence is described as a grave social evil.77 PART C VICARIOUS LIABILITY The normal rule is undoubtedly to the effect that a man should be punished only for his misdeeds and not for that of others. But from time immemorial, we have read of instances of clan feuds or tribal feuds which for a wrong committed by say, A, belonging to a particular clan X, towards B belonging to a rival clan Y, vengeance will be taken by B, his relations and members of his clan not only upon the actual wrong-doer A, but upon his near relations such as his father, mother, brothers, sisters, and even upon members of his clan X. We need not condemn this as a barbarous practice which prevailed only in ancient times, for we can see its modern form in the group fines imposed upon the villages by modern state governments. For example, the Protection of Civil Rights Act 1955 and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 provide for collective fines. Notwithstanding these exceptions, it is now generally regarded as a compelling principle of justice that a man should not be penalised for the wrong of another. The principle of vicarious liability, which plays an important part in torts and civil law generally, should not be extended to criminal law. But to this rule of non-liability, two exceptions have been recognised in English common law: (1) A master is vicariously liable for libel published by his servant. However, it is open to a master-proprietor to show in defence that the libel was published without his authority and with no lack of care on his part. (2) A master is vicariously responsible for a public nuisance committed by his servant.78It would very often be difficult to check effectively acts of public nuisance by menial servants, unless their masters are made responsible. Exceptions to General Rule of Vicarious Liability As stated earlier, the rule of vicarious liability is not generally applicable in criminal law. The maxim qui facit per alium facit per se (he who acts through another acts through himself) or the law of agency is not a doctrine of criminal law, but of civil law, is not without its exceptions. Generally, a master is punishable under criminal law for acts of his servant only, where it is proved that he has instigated or otherwise abetted the acts of the person who actually committed the crime. This is based on the general principle of criminal law that there must be blameworthy condition of mind or mens rea in order to make a person criminally liable. The condition of mind of the servant cannot be imputed to the master. But, the following are exceptions to the general rule that a master is not criminally liable for the acts of his servants. Liability under a Statute It is within the power of the legislature to make a certain illegal act or omission penal and fix an absolute liability upon any person, if, a breach of a certain enactment is made. Once absolute liability is fixed, then a particular intent or state of mind is not the essence of the offence. In such cases, acts or defaults of a servant or agent in the ordinary course of his employment CHAPTER 4 Mens Rea Page 12 of 15 court has overruled the Velliappa Textiles dictum. Reiterating that a corporation or a company, by virtue of ss 2 & 11 of the IPC, is a ‘person’ and it, theoretically, can be prosecuted for any offence punishable under law, the apex court ruled that there is no immunity to a company or corporation from prosecution merely because the prosecution is in respect of offences for which the punishment prescribed is mandatory punishment. A company or corporation, the court stressed, should not be allowed to go scot-free merely on the ground that it technically cannot be punished by way of imprisonment. The apex court ruled that a company or corporation can be charged with offence punishable with mandatory fine and a term of imprisonment, but the punishment can only be limited to a fine. The court can ignore the sentence of imprisonment as in respect of a company it is impossible to execute. It can be convicted for committing any offence that is not subjected to only custodial sentence.96 However, a corporation cannot be convicted for the offences, which by nature, cannot be committed by a corporation but can only be committed by an individual human being (e.g. sexual offences, bigamy, perjury, murder, treason). Similarly, it cannot be held criminally liable for committing the offences that are punishable only by mandatory corporal or capital punishment, as a corporation obviously cannot be subjected to such a punishment. The Supreme Court, by majority, ruled that a court cannot impose criminal liability on a corporation if penal provision provides for imprisonment only or a minimum term of imprisonment plus fine.97 In this regard, it may be noted that in most social legislations like the Essential Commodities Act 1955, the Prevention of Food Adulteration Act 1954, the Negotiable Instruments Act 1881, the Environment (Protection) Act 1986 and so on which provide that at the time of the commission of the offence, the company, as also every person who was responsible for the conduct or business of the company, shall be deemed to be liable for the offence, and if found guilty, they could be punished, not only with fine, but imprisonment as well.98 An important change introduced in these statutory offences is the shifting of the burden of proof from the prosecution to prove the charge or accusation, to the persons accused of committing the crime by virtue of the fact that they played a crucial role in the administration and management of the company. Thus, there is a presumption of guilt in respect of persons who are in charge of the company and the burden on the accused to show that the offence was committed without his knowledge or that he exercised due diligence to prevent the commission of the offence.99 1 Glanville Williams, Textbook of Criminal Law, second edn, Stevens & Sons, 1983, p 30. 2 Indian Penal Code 1860, s 299. 3 See ibid, s 300. 4 See the Indian Penal Code 1860, s 378. 5 Ibid, s 142. 6 Ibid, s 157. 7 Ibid, s 209. 8 Ibid, s 264. 9 Ibid, s 298. 10 See Indian Penal Code 1860, s 23. 11 Ibid, s 24. 12 Ibid, s 25. 13 Ibid, s 26. 14 Ibid, s 35. 15 Ibid, s 37. 16 Ibid, s 39. 17 Ibid, ss 153 and 270. 18 Ibid, s 153. 19 See ss 219 and 220. 20 For further details of these terms see Shamsul Huda, ‘The Principles of Law of Crimes’, (Tagore Law Lectures 1902), Eastern Book Co, Lucknow, Reprint 2011, ch 5: Mens Rea, and ch 6: Words Used in the Code to Denote Mens Rea. CHAPTER 4 Mens Rea Page 13 of 15 21 However, there are certain offences in the IPC which are silent about the required mens rea. For example, see the offences created under ss 283, 290 and 494. 22 For details see chs 6-15, below. 23 John D Mayne, The Criminal Law of India, fourth edn, Higginbotham, Madras, 1896, p 9. A similar view was expressed by MC Setalvad, a lawyer of repute and former Chairman of the First Law Commission of India, see MC Setalvad, The Common Law in India (Hamlyn Lectures), Stevens & Sons, London, 1960, p 139. 24 Ratanlal & Dhirajlal’s the Indian Penal Code, VR Manohar & Avtar Singh (eds), thirty-third edn, Lexisnexis Butterworths Wadhwa, Nagpur, 2010, Reprint 2011, p 114. 25 [1951] SCR 322 [LNIND 1951 SC 22]. 26 AIR 1965 SC 722 [LNIND 1964 SC 415]. 27 Ibid., para 13. 28 AIR 1966 SC 43 [LNIND 1965 SC 97]. 29 (1994) 3 SCC 569. 30 AIR 1965 SC 881 [LNIND 1964 SC 205]. 31 But see CT Prim v The State AIR 1961 Cal 177 [LNIND 1959 CAL 81]. 32 Bhagwani Appaji v Kedari Kashinath (1900) ILR 25 Bom 202; Jai Prakash v Delhi Administration (1991) 2 SCC 32 [LNIND 1991 SC 963], 1991 (1) SCALE 114. 33 Ram Kumar v State, AIR 1970 Raj 60 [LNIND 1969 RAJ 152]; Sorabjeet Singh v State of Uttar Pradesh (1984) SCC (Cri) 151, AIR 1983 (SC) 529. 34 Abdul Majeed v State of Kerala (1994) Cr LJ 1404(Ker). 35 Kamala Kant Singh v Chairman, Bennetta Colman (1988) 1 Crimes 106; Narayan Das v State of Orissa AIR 1952 Ori 149 [LNIND 1951 ORI 39]. 36 Macaulay, Macleod, Anderson and Millett, A Penal Code prepared by the Indian Law Commissioners and Published by Command of the Governor General of India, Pelham Richardson, 1838, Note ‘J’. 37 See Hari Singh Gour, The Penal Law of India, vol 1, 11th edn, Law Publishers, Allahabad, 1998, p 232. 38 S Raghubir Singh Sandhwala v Commr of IT AIR 1958 Punj 250. 39 Austin, Lectures on Jurisprudence, Students’ edn, 1920, p 165. 40 Nathuni Yadav v State of Bihar AIR 1997 SC 1808. 41 Hardeep Singh Sohal v State of Punjab through CBI (2004) Cr LJ 4627(SC). 42 Suresh Chandra Bahri v State of Bihar AIR 1994 SC 2420, (1994) Cr LJ 3271(SC). 43 Dilip Kumar Sharma v State of Madhya Pradesh AIR 1976 SC 133, (1976) Cr LJ 184(SC). 44 State of West Bengal v Mohammad Khalid AIR 1995 SC 785. 45 Meharban v State of Madhya Pradesh (1996) 10 SCC 615 [LNIND 1996 SC 1571], (1997) SCC (Cri) 118 [LNIND 1996 SC 1571]. 46 Gurucharan Singh v State AIR 1956 SC 460; Brijpal Singh v State of Uttar Pradesh AIR 1994 SC 1624 [LNIND 1993 SC 294],(1994) Cr LJ 2082 (SC); Mani Kumar Thapa v State of Sikkim (2002) 7 SCC 157 [LNIND 2002 SC 508], and Yunis v State of Madhya Pradesh (2003) 1 SCC 425 [LNIND 2002 SC 784]. 47 (2002) 7 SCC 536 [LNIND 2002 SC 605]. 48 (2003) 1 SCC 648 [LNIND 2002 SC 777]. 49 The Supreme Court reiterated this principle in Yunis v State of Madhya Pradesh (2003) 1 SCC 425 [LNIND 2002 SC 784]. 50 Girja Shankar Misra v State of Uttar Pradesh AIR 1993 SC 2618 [LNIND 1993 SC 660]. 51 (2003) 2 SCC 202 [LNIND 2003 SC 9]. 52 Hari Singh Gour, The Penal Law of India, vol 1, 11th edn, Law Publishers, Allahabad, 1998, p 240. See also Joti Parshad v State of Haryana AIR 1993 SC 1167, (1993) Cr LJ 413(SC). 53 Basdev v State of Pepsu AIR 1956 SC 488 [LNIND 1956 SC 34]. 54 Jai Prakash v Delhi Administration (1991) 2 SCC 32 [LNIND 1991 SC 963], 1991 (1) SCALE 114. 55 Empress of India v Idu Beg (1881) ILR 3 All 776. Quoted with approval in Alister Anthony Pareira v State of Maharashtra (2012) 2 SCC 648 [LNIND 2012 SC 15], 2012 Cr LJ 1160. CHAPTER 4 Mens Rea Page 14 of 15 56 See, ss 279, 280, 282, 284, and 286-289, IPC. 57 Glanville Williams, Textbook of Criminal Law, second edn, Stevens & Sons, 1983, pp 90-91. 58 Jayaraj v State of Tamil Nadu AIR 1976 SC 1519, (1976) Cr LJ 1186(SC). See also Re Thunicharan (1991) Cr LJ 318. 59 See Hari Singh Gour, The Penal Law of India, vol 3, 11th edn, Law Publishers, Allahabad, 1998, pp 2377 2378. 60 Ashok Kumar Barik v State of Orissa (1992) Cr LJ 1849(Ori). 61 TADA was a temporary enactment which lapsed in the year 1995. 62 AIR 1990 SC 1962 [LNIND 1990 SC 405], (1990) 4 SCC 76 [LNIND 1990 SC 405]. 63 AIR 1994 SC 2623 [LNIND 1994 SC 572]. 64 AIR 1999 SC 2640 [LNIND 1999 SC 526], (1999) Cr LJ 3124(SC). 65 Soni Vallabhdas v Asst Collector of Customs AIR 1965 SC 481 [LNIND 1964 SC 443]. 66 Hukma v State of Rajasthan AIR 1965 SC 476 [LNIND 1963 SC 207], (1965) 1 Cr LJ 369(SC). 67 AIR 1978 SC 597 [LNIND 1978 SC 25]. 68 See generally LH Leigh, Strict and Vicarious Liability, Sweet & Maxwell, 1982. 69 In 1984, there was a major gas leak from the Union Carbide factory situated in Bhopal. Thousands died in this largest industrialist disaster termed as ‘Bhoposhima’ by VR Krishna Iyer J, former judge, Supreme Court of India. Even today, people are suffering as a result of the gas leak and continue to agitate for their rights, even 27 years after the incident. 70 Sarjoo Prasad v State of Uttar Pradesh AIR 1961 SC 631 [LNIND 1960 SC 350]; State of Orissa v K Rajeshwar Rao AIR 1992 SC 240 [LNIND 1991 SC 593], (1992) 1 SCC 365 [LNIND 1991 SC 593]. 71 State of Madhya Pradesh v Narayan Singh AIR 1989 SC 1789, (1989) Cr LJ 2101(SC). 72 Director of Enforcement v M /s MCTM Corpn Pvt Ltd AIR 1996 SC 1100, (1996) 2 SCC 471, (1996) Cr LJ 1623(SC). 73 State of Karnataka v Appa Balu Ingale (1995) Supp 4 SCC 469. 74 See K I Vibhute, ‘Right to Live with Human Dignity of Scheduled Castes and Scheduled Tribes: Legislative Spirit and Social Response - Some Reflections’, Journal of the Indian Law Institute, vol 44 (2002) p 469. 75 Saibal Kumar Gupta v BK Sen AIR 1961 SC 633 [LNIND 1961 SC 17]; Pritam Pal v High Court of Madhya Pradesh (1993) Supp 1 SCC 529. 76 AIR 1966 SC 43 [LNIND 1965 SC 97], para 4. 77 See State of Maharashtra v Mayer Hans George AIR 1965 SC 722 [LNIND 1964 SC 415]; Nathulal v State of Madhya Pradesh AIR 1966 SC 43 [LNIND 1965 SC 97]; Inder Sain v State of Punjab AIR 1973 SC 2309 [LNIND 1973 SC 199]; Kartar Singh v State of Punjab (1994) 3 SCC 569; JK Industries Ltd v Chief Inspector Factories and Boilers (1996) 6 SCC 665 [LNIND 1996 SC 1547]; Gopaldas Udhavdas Ahuja v Union of India (2004) 7 SCC 33 [LNIND 2004 SC 666]. 78 A public nuisance is an act which causes obstruction, inconvenience or damage to the public. In the case of any private nuisance, a master will be held civilly liable and the same principle is applied to public nuisance also. 79 Hari Singh Gour, The Penal Law of India, vol 1, 11th edn, Law Publishers, Allahabad, 1998, p 145. 80 Maksud Saiyed v State of Gujarat & Ors (2008) 5 SCC 668 [LNIND 2007 SC 1090], 2007 (11) SCALE 318 [LNIND 2007 SC 1090]; SK Alagh v State of Uttar Pradesh (2008) 5 SCC 662 [LNIND 2008 SC 368]; AIR 2008 SC 1731 [LNIND 2008 SC 368]. 81 AIR 1961 SC 631 [LNIND 1960 SC 350], 1961 Cri LJ 747. See also State of Orissa v K Rajeshwar Rao AIR 1992 SC 240 [LNIND 1991 SC 593], (1992) Cr LJ 300(SC). 82 Hari Singh Gour, The Penal Law of India, vol 1, 11th edn, Law Publishers, Allahabad, 1998, p 146. 83 AIR 1927 Bom 209. 84 Hari Singh Gour, The Penal Law of India, vol 1, 11th edn, Law Publishers, Allahabad, 1998, p 148. 85 The Code of Criminal Procedure 1973, s 45, for example, casts upon the owners and occupiers of land the duty of preventing a riot on their lands. 86 R v Prayag Singh (1980) ILR 12 All 550 and Kazi Zeamuddin Ahmed v R (1901) ILR 28 Cal 504. 87 Harakchand Ratanchand Banthia er Ors v Union of India er Ors AIR 1970 SC 1453 [LNIND 1969 SC 199] (1466). 88 [1915] AC 705. This dictum is referred to, and relied upon, in: HL Bolton Company v TJ Graham [1956] 3 All ER 624 and Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 3 WLR 413(PC). 89 Ibid, at 713. CHAPTER 5 General Exceptions—An Introduction Page 2 of 4 Every penal clause is subject to a number of limitations and no offence can be absolute without any exceptions. An offence committed by a child or by a mentally ill person cannot obviously be treated in the same manner as an offence committed by a sane adult. Similarly, liability cannot be fixed on persons who would have committed an offence by accident, under threat, by necessity or in private defence, in the same manner as a person who has committed an offence with an evil intention or design. However, the Code itself has been drafted upon the assumption that all exceptional and extenuating circumstances are absent. For instance, there is a presumption that all persons are sane and are not acting under the influence of alcohol. Such a presumption may be true of large number sections of the Code, but not without exception. There are a significant number of persons who may be insane, suffering from some mental illness, or alcoholics, who may fall outside the general presumption that everybody is sane and sober. Instead of qualifying every offence with the limitations or exceptions, a separate chapter has been enacted which is applicable to the entire Code. This is basically to avoid repetition. Objects of clustering all the exceptions in a single chapter as outlined by the Law Commissioners who drafted the Code are: This chapter has been framed in order to obviate the necessity of repeating in every penal clause a considerable number of limitations. Some limitations relate only to a single provision, or to a very small class of provisions. ...But there are other exceptions which are common to all the penal clauses of the Code, or to a great variety of clauses dispersed over many chapters. Such are the exceptions in favour of infants, lunatics, idiots, persons under the influence of delirium, the exceptions in favour of acts done by the direction of law, of acts done in the exercise of the right of self defence, of acts done by the consent of the party harmed by them. It would obviously be inconvenient to repeat these exceptions several times in every page. We have, therefore, placed them in a separate chapter, and we have provided that every definition of an offence, every penal provision, and every illustration of a definition or penal provision shall be construed subject to the provisions contained in that chapter.5 The last sentence, obviously, refers to s 6 of the Code. It provides: Throughout this Code every definition of an offence, every penal provision, and every illustration of every such definition or penal provision, shall be understood subject to the exceptions contained in the Chapter entitled ‘General Exceptions’, though those exceptions are not repeated in such definition, penal provision or illustration. Illustrations appended to the section further clarify the intent of the authors of the Code. Illustration (a), for example, reads: The sections, in this Code, which contain definitions of offences, do not express that a child under seven years of age cannot commit such offences, but the definitions are to be understood subject to the general exception which provides that nothing shall be an offence which is done by a child under seven years of age.6 Section 6, thus, mandates a court to read every definition of an offence or penal provision including the illustrations appended thereto subject to General Exceptions.7 It also conveys that the IPC presumes the absence of any extenuating circumstances that have been incorporated in ch IV of the Code.8 In order to understand or construe any provision of the Code, it is, therefore, not sufficient to read the concerned section alone. Every provision under the IPC has to be read along with the chapter on ‘General Exceptions’ before coming to any conclusion on the liability or culpability of a person accused of a crime. APPLICABILITY OF THIS CHAPTER TO OFFENCES UNDER SPECIAL OR LOCAL LAWS Section 40 (para 2) of the Code defines the word ‘offence’ as denoting a thing punishable under the IPC as well as under a special or a local law. By virtue of provisions of s 40, read with that of s 6, it follows that the chapter on general exceptions is applicable not only to the IPC, but also to penal provisions in other special and local Acts.9 The title ‘General Exceptions’ is, therefore, adopted to convey that these ‘exceptions’ are available to accused of all offences.10 CHAPTER 5 General Exceptions—An Introduction Page 3 of 4 BURDEN OF PROOF It is the fundamental rule of criminal jurisprudence that a person is innocent until proved guilty. This means that there is always a presumption of innocence in favor of an accused and the burden of proving every aspect of the crime—the act us reus, the mens rea, the causation, the motive—is solely on the prosecution. The standard of proof required is very high. The prosecution has to prove the guilt of the accused beyond reasonable doubt.11 Section 105 of the Indian Evidence Act 1872 (Evidence Act) places the burden on the accused to prove that the case falls within one of the general exceptions. It provides that ‘the court shall presume the absence of such circumstances’, which may bring the accused within the exceptions set out in ch IV of the IPC. It calls upon the accused to show that the circumstances bringing the case within the exceptions are present, as the court cannot suo motu presume the existence of the circumstances. Further, s 103 of the Evidence Act provides that when a person wishes the court to believe in the existence of any particular fact, the burden of proof lies on the person who desires the court to believe in it, unless the law specifically provides that the burden lies on any other particular person. STANDARD OF PROOF Though, the burden of proof in respect of proving the existence of circumstances that might bring the case within the exceptions provided in ch IV of the Code is on the accused, the standard of proof required is not the same to that of the prosecution. The standard of proof required by the prosecution to prove guilt and the standard required by the defence to establish that the case is within the exceptions; are different. As stated earlier, the prosecution has to prove all elements of the crime beyond reasonable doubt and this burden on the prosecution never shifts.12 After the prosecution has discharged this burden, and has established beyond reasonable doubts that the accused is guilty of the crime, then it is open to the accused to adopt a defence that his case falls under one or other of the general exceptions. If the accused takes such a defence then it is for him to prove the same. He can prove this in two ways. One way is, of course, to establish by positive and direct evidence that the exception pleaded by him existed. The second method is to bring on record sufficient material, so as to cast a doubt on the story of the prosecution and establish that there is reasonable possibility and probability that the circumstances and the defence as stated by the accused existed. The benefit of such doubt naturally goes to the accused. It displaces the initial presumption of non-existence of the circumstances in his favor. He is, therefore, not required to prove beyond reasonable doubt that his case falls under the relied on exception. He discharges his burden of proof as soon as he proves the preponderance of probability of the existence of the circumstance(s) bringing his case within the general exception(s).13 Once a prima facie case of the existence of circumstances that brings the case within any of the general exceptions is made out, the burden once again shifts on the prosecution to prove beyond doubt the guilt of the accused and to establish that the general exception relied on by the accused does not exist. This primary burden on the prosecution never shifts. However, it needs to be stressed here that the accused is not required to take up the plea specifically that his case falls within any of the general exceptions. By virtue of s 6 of the IPC, there is no imperative duty or obligation on an accused to take up a specific plea that his case falls under any of the general exceptions but a court is under duty to bear in mind that every penal provision needs to be interpreted subject to the general exceptions. It imposes a statutory duty on the court to consider as to whether the offence allegedly committed by an accused is covered by any of the general exceptions or not even though he has not taken the plea specifically.14 1 ‘The expression ‘general defences’ suggests something positive that must be put forward on behalf of the accused, but in truth it is more accurate’, Blackstone observed, ‘to regard these defences as circumstances where the prosecution has been unable to prove all the requirements of liability beyond reasonable doubt’. See Blackstone’s Criminal Practice 2003, Peter Murphy (ed), Oxford, 2003, p 34. 2 Shamsul Huda, however, felt that ‘general exceptions’ are the circumstances that preclude the existence of mens rea. He, therefore, labeled them as ‘conditions of non-imputability’. See, Shamsul Huda, The Principles of the Law of Crime’,(Tagore Law Lectures, 1902), Eastern Book Co, Lucknow, Reprint 2011, ch 7: ‘Conditions of Non-Imputability’. 3 ‘The expression ‘general defences’ suggests something positive that must be put forward on behalf of the accused, but in truth it is more accurate’, Blackstone observed, ‘to regard these defences as circumstances where the prosecution has been unable to prove all CHAPTER 5 General Exceptions—An Introduction Page 4 of 4 the requirements of liability beyond reasonable doubt’. See Blackstone’s Criminal Practice 2003, Peter Murphy (ed), Oxford, 2003, p 34. 4 Paul Robinson, ‘Criminal Law Defences: A Systematic Analysis’, vol 82 Columbia Law Review, 1982, p 199; see also, Eric Colvin, ‘Exculpatory Defences in Criminal Law’, vol 10 Oxford Journal of Legal Studies, 1990, p 381; George P Fletcher, Rethinking Criminal Law, Little Brown, Boston, 1978, pp 798-800, and Glanville Williams, ‘The Theory of Excuses’, [1982] Criminal Law Rev 732. 5 Macaulay, Macleod, Anderson and Millett, A Penal Code Prepared by the Indian Law Commissioners, Pelham Richardson, 1838, Note ‘B’. Emphasis supplied. 6 The illustration is based on the general exception enumerated in s 82 of the IPC. 7 Shankar Narayan Bhadolkar v State of Maharashtra AIR 2004 SC 1966 [LNIND 2004 SC 1370], (2005) 9 SCC 187.. 8 Bhupendrasinh A Chudasama v State of Gujarat AIR 1997 SC 3790 [LNIND 1997 SC 1378]. 9 King Emperor v Tustipada Mandal AIR 1951 Ori 284 [LNIND 1948 ORI 2]. 10 Shankar Narayan Bhadolkar v State of Maharashtra AIR 2004 SC 1966 [LNIND 2004 SC 1370], (2005) 9 SCC 187.. 11 Before the Indian Evidence Act 1872 came into force, the prosecution had an additional burden of proving the absence of circumstances that might bring either the accused or the offence(s) committed by him within any of the General Exceptions provided in the Indian Penal Code 1860. See, Hari Singh Gour,Penal Law of India, vol 1, eleventh edn, Law Publishers, Allahabad, 1998, p 535. 12 KM Nanavati v State of Maharashtra AIR 1962 SC 605 [LNIND 1961 SC 362]; Dahyabhai Chhaganbhai Thakkar v State of Gujarat AIR 1964 SC 1563 [LNIND 1964 SC 88]; State of Gujarat v Bai Fatima AIR 1975 SC 1478 [LNIND 1975 SC 130]. 13 Harbhajan Singh v State of Punjab AIR 1966 SC 97 [LNIND 1965 SC 65] and Bhupendrasinh A Chudasama v State of Gujarat AIR 1997 SC 3790 [LNIND 1997 SC 1378]. 14 Munshi Ram v Delhi Administration AIR 1968 SC 702 [LNIND 1967 SC 347]; Venketa Siva v State of Andhra Pradesh (1970) Cr LJ 1004(SC), (1970) 1 SCC 235 [LNIND 1970 SC 10]; State of Gujarat v Bai Fatima AIR 1975 SC 1478 [LNIND 1975 SC 130]; State of Uttar Pradesh v Md Musheer Khan AIR 1977 SC 226; State of Gujarat v Ghenu (1978) Cr LJ 262(SC) ; State of Assam v Abinash (1982) Cr LJ 400(Gau) ; Jaspal Singh v State (Delhi Administration) (1986) 2 Crimes 338 [LNIND 1986 DEL 75] (Del) ; Moti Singh v State of Maharashtra (2002) 9 SCC 494; Rizan v State of Chattisgarh (2003) 2 SCC 661 [LNIND 2003 SC 72]; Sukhdev Singh v Delhi State (Govt of NCT of Delhi) (2003) 7 SCC 441 [LNIND 2003 SC 728], AIR 2003 SC 3716 [LNIND 2003 SC 728]. End of Document CHAPTER 6 Mistake of Fact Page 3 of 10 ...[T]here is no presumption in this country that every person knows the law; it would be contrary to common sense and reason if it were so... If there were not [such thing as a doubtful point of law], there would be no need of courts of appeal, the existence of which shows that judges may be ignorant of law.11 ‘The view that everyone is presumed to know law’, Glanville Williams observed, ‘is not a true proposition of law, and even if it were, it would only be a legal fiction not a moral justification’.12 Lord Denning has also more than once urged its abandonment.13 It is also significant to note that some of the penal statutes have relieved themselves from rigorous application of the maxim ignorantia juris non excusat by making some inroads in its operation.14 Similarly, some of the courts, doubting its existence and realising the implications of its rigorous application, have taken the position that mistake of law should be a defence.15 Mistake of law, as perceived in India, takes into its ambit both mistake as to the existence of any law on a relevant subject, as well as mistake as to what the law is.16 Mistake of law, even in good faith, is not a defence.17 It, nevertheless, may operate as mitigating factor.18 However, if a statute provides that certain knowledge-involving elements of law on the part of the accused is an essential ingredient of the offence, mistake of law, in good faith, may be a good defence to a charge of a criminal offence.19 Where the law prescribes a particular mode of its publication and that mode is not followed, ignorance of law will be a good defence. But if there is no such special mode of publication prescribed, the publication in the Government Gazette will be deemed to be enough publication to exclude the plea of ignorance of the law. It is a matter of common knowledge that in India, where a majority of the population is illiterate, the presumption of knowledge of law seems not only to be illogical but also ridiculous and unjust. Even among the educated and literate, legal knowledge is very poor. It is impossible for them to know all the statutory laws. Even lawyers, judges, and law teachers, who are mainly concerned with law as their profession, do neither claim nor in fact know all the laws. Its rigorous application, in such a situation, may result in holding morally innocent persons criminally liable. It admits of no exception, not even in case of a foreigner who, in the circumstances in which he was placed, cannot be reasonably supposed in fact to know the law of the land.20 Recalling implications of the rigorous application of the principle of mistake of law is no excuse and the relaxations made in other jurisdictions, Justice RL Narasimham, one of the Members of the Law Commission of India that submitted its Report on the Indian Penal Code in 1971, suggested that where the mistake of law relates to a provision of a rule, byelaw, order or notification made under an Act of the Legislature, and the accused person’s mistake is of such a nature that he could not have avoided it by due diligence, then the mistake should be a defence, but the burden of proving it should be on the accused person.21 He, accordingly, recommended insertion in the IPC of s 79A; which reads: 79A. Notwithstanding anything contained in sections 76 and 79, nothing is an offence where the act alleged against an accused is contravention of a provision of a rule, bye-law, order or notification made under an Act of Legislature, if at the time of such contravention the accused could not have with due diligence been aware of the said provision.22 MISTAKE OF FACT Ignorance of fact is an excuse as it precludes the accused from forming the required mens rea.23 It negatives the existence of mens rea. A good example to substantiate the proposition given by Sir Michael Foster which is often quoted is: a man, before going to church, fired his gun, and left it empty. But during his absence, somebody else went out shooting with the gun and, while keeping it back, left it loaded. The owner, late in the same day, took up the gun again and, in doing so, touched the trigger. The gun went off, and killed his wife, who was in the room. The man had reasonable grounds to believe that the weapon was not loaded. He was acquitted.24Mistake must be of material facts, i.e., facts essential to constitute the offence allegedly committed by the accused. He must be absolutely ignorant of the real circumstances of the case which makes his act an offence.25 Where a fact is unknown to the accused, his conduct must not be taken to be the intention with regard to it. For instance, A fires a bullet into a bush where, unknown to him, B is hiding and the bullet kills B. It is true that A fired intentionally into the bush, but he is not liable as he did not fire intentionally at B. Then again, it is raining and X takes the only umbrella in the stand at his college, thinking that it is his own umbrella but in fact it is Y’s. X is not guilty of theft, because there is actus reus but no mens rea. So also, N, a nurse in a hospital, gives P, a patient, a liquid thinking it to be a medicine, in fact; it is poison. N is not guilty of murder, for she did not intend to give poison.26 However, where the act of the accused is in itself wrong, although not criminal, the ignorance on his part of the circumstances which makes the act criminal is no defence.27 For example, A strikes B and B falls unconscious. A thinking that B is dead, sets fire to the body and burns it; A’s act is not CHAPTER 6 Mistake of Fact Page 4 of 10 innocent, though he is act ing under a bona fide mistake of fact. It does not amount to mistake of fact for avoiding criminal liability as he, in burning the body of B, intended to cause disappearance of the evidence of his previous act of striking B and its consequential result.28 Under s 79, IPC, though an act is not justified by law, yet if it is done under the bona fide belief and in good faith that it is justified by law, then it will not be an offence.29 So, when an accused, under a bona fide mistake of fact, mistook a human being in the jungle as a wild animal at night and killed the person, then the accused was held to be not liable.30 Where an accused killed a person under the mistaken belief that the person who entered his house did so with the intention of killing him,31 or where an accused acting under a momentary delusion killed his own son considering him to be a tiger,32 or when an accused assaulted and killed a person and seriously injured two under the bona fide mistake that he was attacking ghosts and not human beings,33 the conduct of the accused in all these cases was held to be justified in law and therefore they were absolved from liability. Ignorantia facti doth excusat, however, is subject to two reservations. First, mistake of fact cannot be successfully pleaded when responsible inquiry would have elicited the true facts. For example, A abducts B, a girl under 18 years of age, out of guardianship of her father without his consent. He believes that she is above the age of 18, but does so without making any inquiry, basing his belief on mere appearance. A is guilty of kidnapping under s 361 of the IPC.34Secondly, it cannot be accepted as a plea, when an act us is made reus without reference to mens rea of the doer.35 BOUND BY LAW Under s 76, acts done by a person bound by law or by mistake of fact believes himself to be bound by law is protected from criminal liability. The illustrations to the section explain the meaning of the term ‘bound by law’. The first illustration is of a soldier who fires on a mob by order of a superior officer, in conformity with the commands of the law. The act ion of the soldier is protected under this section. The second illustration is that of an officer of a court of justice who being ordered by court to arrest Y, and after due enquiry, believing Z to be Y, arrests Z. The action of the officer is again protected under this section. In order to get benefit of s 76, thus, a person has to show the existence of facts which would justify his belief, in good faith, that he was bound by law to act.36 For illegal acts, therefore, neither the orders of a parent nor a superior will protect the doer from liability. Section 43, IPC, explains the term ‘legally bound to do’ as acts which, if omitted, would amount to commission of an illegality by a person. When a person made a defamatory statement while deposing as a witness, he cannot get the protection of this section, as he is not bound by law to make a defamatory statement as a witness.37 A person, who was charged with the kidnapping of a minor girl, pleaded that he did so at the request of the girl’s mother, his defence was not accepted as he was not bound by law to obey the orders of the mother to take the girl away.38 ACTS DONE UNDER ORDER OF A SUPERIOR AUTHORITY Every act done under orders of superior authorities is not protected under this section. Where the orders of the superior authority are illegal, it will not save the subordinate officer from liability.39 Where a police constable shoots and kills another under the orders of his superior officer, he cannot escape criminal liability because the order was obviously illegal and he was aware of the illegality of the order.40 In State of West Bengal v Shew Mangal Singh ,41 the case of the prosecution was that the deceased and his brother were shot dead by the police at point blank range and brutally murdered. According to the defence version, the accused police officers were on patrol when they were attacked by a mob. When an Assistant Commissioner of Police was injured in the mob violence, orders were given by the Deputy Commissioner of Police to open fire. The accused constables were bound by law to obey the orders of the superior officer. Both the Calcutta High Court and the Supreme Court held that the situation warranted and justified the order to open fire and hence, the accused was entitled the protection of s 76. However, the IPC does not recognise the mere duty of blind obedience by a soldier to his superior authority. He will not be CHAPTER 6 Mistake of Fact Page 5 of 10 absolved from liability unless he shows that either the order was legal and binding on him or the circumstances made him, in good faith, to believe reasonably that he was bound by law to obey it. A soldier, who fired upon a mob by order of his commanding officer, could not get immunity from criminal liability merely on the ground that he obeyed the order of his superior authority.42 In Dakhi Singh v State ,43the accused arrested the deceased who was suspected of being a thief, and the deceased resisted the arrest. The accused used force which resulted in his death. Though s 46, Crpc, lays down that a police officer can use all means necessary to effect arrest, it also states that it does not give the right to cause death of a person who is not accused of an offence punishable with death or imprisonment for life. So, it was held that since the deceased was only suspected of theft, ss 76 and 79, IPC, did not justify shooting the person dead. Arrest under warrant issued by a court is an act protected by this section. So, when a person executed the warrant of arrest and by a bona fide mistake arrested the wrong person, he will get the benefit of this section.44 However, he will be precluded from taking shelter behind provisions of s 76, if he maliciously procures an order from a magistrate to harass and humiliate a person. Where convict warders and convict officials beat and tortured the convicts that resulted in the death of two convicts, it was held that s 76 does not afford any defence to them. It was obviously an illegal order and convict warders should have known that merciless beating of convicts is contrary to law. At best, the fact that the convict warders acted in obedience to orders given by the officials, could only be used to mitigate the sentence.45 Private persons who are bound by law to assist the police under s 37 of the Crpc are also protected under s 76 of the IPC. JUSTIFIED BY LAW Section 79 protects acts which are justified by law or are bona fide believed, by mistake of fact, to be justified by law. It exonerates the doer because of his bona fide belief, although mistaken, that eliminates his culpability. It comes into play only when there is real or supposed legal justification for a person in doing the act complained of and that the same was done with an intention of advancing the law to the best of his judgment exerted in good faith.46 An act wholly justified by law does not amount to an offence at all in view of the provisions of s 79. In Kiran Bedi & Jinder Singh v Committee of Inquiry ,47 a lawyer was apprehended by the students of St Stephens College, University of Delhi, and handed over to the police on the allegation of committing an offence within the campus. The said lawyer was handcuffed and produced before the court. The other lawyers protested against the handcuffing, but the police officials ignored it. The lawyer was discharged by the court on the same day and the court also directed the Commissioner of Police to take action against the guilty police officials. The petitioner made a press statement justifying the police act ion and criticised the order of the magistrate discharging the lawyer. A group of lawyers, anguished at this press statement, went to meet the petitioner, who refused to meet them. It was alleged that instead the petitioner ordered a lathi-charge against the lawyers. The lawyers went on an indefinite strike demanding a judicial enquiry. Thereafter, a mob engineered by the petitioner was alleged to have attacked the courts, injuring some lawyers and destroying property. Thereafter, a Commission of Inquiry, consisting of two judges of the Delhi High Court, was constituted. As per s 8B of the Commissions of Inquiry Act 1952, if, during the enquiry, it is considered necessary to inquire into the conduct of any person or if the reputation of any person is to be prejudicially affected, then such persons should be given an opportunity to defend themselves. Generally, such persons are asked to depose only at the end of enquiry, so as to enable the person to defend himself on all the points placed before the Commission. However, in the instant case, the petitioner and another were asked to depose at the beginning of the inquiry itself. The petitioner refused on the ground that she should be called only at the end of the inquiry. On her refusal, the Commission directed prosecution against her under s 178 of the IPC, which makes refusal by a public servant to take oath or affirmation to state the truth when duly required, an offence. As against this prosecution, the petitioners took the plea of valid justification for refusing to bind themselves by oath or affirmation. The petitioners claimed that the exception under s 79 of the Code applied to them. However, doer of an act which is wholly unjustified or going beyond what is strictly justified in law does not get protection of s 79. In State of Andhra Pradesh v N Venugopal ,48 the accused were all policemen. Of the three, one was a sub-inspector, another, head constable and the third, a constable. They arrested a person on the suspicion that he had received some stolen CHAPTER 6 Mistake of Fact Page 8 of 10 DIFFERENCE BETWEEN SECTION 79, INDIAN PENAL CODE 1860 AND SECTION 197, CODE OF CRIMINAL PROCEDURE 1973 Section 79 deals with circumstances which when proved, make acts complained of not an offence. It safeguards persons who fall within the ambit of the section from conviction. Section 197, Cr PC, on the other hand, is a protection against prosecution itself. It provides that no court, without prior sanction of the government, shall take cognisance of an offence alleged to have been committed by judges or public servants while acting or purporting to act in the discharge of their official duty. However, it does not exclude the alleged conduct from being an offence.60 The former provides substantive protection (i.e., protection against conviction) to public servants and others, whose actions are justified by law; the latter provides procedural safeguard (i.e., protection against trial). PROPOSALS FOR REFORM The Law Commission of India, expressing its agreement with the principles of immunity from liability embodied in ss 76 and 79 of the IPC, declined to propose any substantive modifications in the provisions. However, plausibly for the sake of better clarity, it recommended regrouping of the principles laid down in these two provisions.61 It proposed that the first parts of both the sections be combined together and be numbered as s 76. The proposed s 76 reads: 76. Act done by a person bound or justified by law.— Nothing is an offence which is done by a person who is bound by law to do it or is justified by law in doing it. And the second parts of ss 76 and 79, which have common elements of mistake of fact and bona fide belief, be brought together to form the proposed s 79 to read it as: Act done by a person by mistake of fact believing himself bound or justified by law.—Nothing is an offence which is done by a person 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 or justified by law, in doing it. Illustrations62 (a) A, an officer of a Court of Justice, being ordered by that Court to arrest Y, and, after due enquiry, believing Z to be Y, arrests Z. A has committed no offence. (b) A sees Z commit what appears to A to be a murder. A, in the exercise, to the best of his judgment exerted in good faith, of the power which the law gives to all persons of apprehending murderers in the fact, seizes Z, in order to bring Z before the proper authorities. A has committed no offence, though it may turn out that Z was acting in self-defence. 1 Jaswantrai Maniklal Akhaney v State of Bombay AIR 1956 SC 575 [LNIND 1956 SC 40]. 2 Russell on Crime, JW Cecil Turner (ed), vol 1, 12th edn, Stevens & Sons, London, 1964, p 75. 3 Kenny’s Outlines of Criminal Law, JW Cecil Turner (ed), 18th edn, Cambridge, 1962, p 53. 4 R v Downes [1875] 1 QBD 25 CCR. 5 Generally speaking, a fact is something perceptible by the sense, while law is an idea in the minds of men. For example, a mistake as to whether a marriage has been celebrated may be either a mistake of fact or a mistake of law. It is a mistake of fact if no ceremony has been performed. But the mistake is one of law if, though the ceremony has been performed, there is a misunderstanding of the rules of law governing the validity of ceremony. See, Glanville Williams, Criminal Law: The General Part, second edn, Stevens & Sons, London, 1961, p 287. 6 Though the terms ‘ignorance of law’ and ‘mistake of law’ have different connotations, writers and courts have treated them as synonymous. ‘Ignorance of law’ suggests knowing no law on a particular subject, whereas ‘mistake of law’ suggests knowing CHAPTER 6 Mistake of Fact Page 9 of 10 something of the law but not enough, or the wrong thing. Thus, ‘ignorance’, in this sense, means ‘no opinion whatever’ and ‘mistake’ ‘an incorrect opinion’. 7 See Winfield, ‘Mistake of Law’, Law Quarterly Review, no 49, p 327. See also Glanville Williams, Criminal Law: The General Part, second edn, Stevens & Sons, London, 1961, ch 8: Ignorance of Law. 8 Kenny’s Outlines of Criminal Law, JW Cecil Turner (ed), 18th edn, Cambridge, 1962, p 54. See also Glanville Williams, Criminal Law: The General Part, Stevens & Sons, London, 1961, pp 290-91. 9 Austin, Lectures on Jurisprudence, vol 1, students’ edn, 1920, p 498. See also John Selden, History of the Criminal Law, vol 2, 1882, p 114. 10 Shamsul Huda, The Principles of the Law of Crimes (Tagore Law Lectures, 1902), Eastern Book Co, Lucknow, Reprint 2011, pp 233-34. 11 Martindale v Falkner (1846) 135 ER 1124, pp 1129-1130. 12 Glanville Williams, Criminal Law: The General Part, second edn, Stevens & Sons, London, 1961, pp 289-90. 13 See, Kiriri Cotton v Dewani [1960] AC 192, p 204; Andre v Blanc [1979] 2 Lloyd’s Rep 427, p 431. 14 For example, the American Model Penal Code 1962; the Draft German Penal Code 1962; the Draft Japanese Penal Code 1961; the Norwegian Penal Code 1961; the Argentinean Penal Code 1960 and the Korean Penal Code 1960 allow, in the indicated circumstances, mistake of law as a good defence. For further details see, Law Commission of India, ‘Forty-Second Report: The Indian Penal Code’, Government of India, 1971, pp 400-402. 15 See S v De Blom (1977) 3 SA 513(South Africa) ; Lim Chin Aik v R [1963] AC 160(PC). 16 King Emperor v Tustipada Mandal AIR 1951 Ori 284 [LNIND 1948 ORI 2], p 289. 17 Mohammad Ali v Sri Ram Swarup AIR 1965 All 161 [LNIND 1963 ALL 162]; Narantakath vPARAKKAL Mammu AIR 1923 Mad 171 [LNIND 1922 MAD 118]. 18 State of Maharashtra v MH George AIR 1965 SC 722 [LNIND 1964 SC 415], (1965) 1 Cr LJ 19(SC). 19 Emperor v Nanak Chand AIR 1943 Lah 208, (1944) Cr LJ 666; AIR 1958 MB 241 (244), (1958) Cr LJ 1327(DB). 20 State of Maharashtra v MH George AIR 1965 SC 722 [LNIND 1964 SC 415], (1965) 1 Cri LJ 19(SC). 21 See his separate note ‘Ignorantia Juris non Excusat’, in Law Commission of India, ‘Forty-Second Report: The Indian Penal Code’, Government of India, 1971, p 397, et seq. For judicial deliberation on the applicability of the maxim to delegated legislation, see State of Maharashtra v MH George AIR 1965 SC 722 [LNIND 1964 SC 415], (1965) 1 Cr LJ 19(SC). See also, Padmapat Sugar Mills Co v State of Uttar Pradesh 118 ITR 326(SC), wherein the Supreme Court observed that the presumption that every person knows law is not a correct statement and there is no such maxim known to the law. 22 Law Commission of India, ‘Forty-Second Report: The Indian Penal Code’, Government of India, 1971, p 405. 23 Halsbury’s Laws of England, vol 11, fourth edn, Butterworths, London, para 21, p 23. 24 Foster 265 TAC. 25 King Emperor v Tustipada Mandal AIR 1951 Ori 284 [LNIND 1948 ORI 2], p 290. 26 RC Nigam, Law of Crimes in India, Asia, London, 1965, pp 305-306. 27 King Emperor v Tustipada Mandal AIR 1951 Ori 284 [LNIND 1948 ORI 2]. 28 King Emperor v Sree Narayan AIR 1949 Ori 48. 29 Keso Sahu v Saligram (1977) Cr LJ 1725(Ori). 30 State of Orissa v Khora Ghasi (1978) Cr LJ 1305(Ori). 31 AIR 1947 Lah 249. 32 Chirangi v State of Madhya Pradesh AIR 1952 Nag 282, (1952) Cr LJ 1212(MP). 33 State of Orissa v Ram Bahadur Thapa AIR 1960 Ori 161 [LNIND 1959 ORI 44], (1960) Cr LJ 1349(Ori). See also, Waryam Singh v Emperor AIR 1926 Lah 554; Bouda Kui v Emperor AIR 1943 Pat 64. 34 Krishna Maharana v Emperor AIR 1929 Pat 651. 35 (1848) 153 ER 907. 36 Re Latifkhan (1895) ILR 20 Bom 394. 37 AIR 1920 All 232, (1921) Cr LJ 564(All). 38 Pramatha Nath v P C Lahiri AIR 1920 Cal 725. CHAPTER 6 Mistake of Fact Page 10 of 10 39 Haji Mahamoodkhan Dulathan v Emperor AIR 1942 Sind 106. 40 Emperor v Piniladhoshah Ibrahimshah AIR 1942 Sind 33. 41 AIR 1981 SC 1917 [LNIND 1981 SC 355], (1981) Cr LJ 1683(SC). 42 Re Charandas AIR 1950 East Punjab 321. However, in certain circumstances, a soldier receives absolute protection under s 132 of the Code of Criminal Procedure 1973. It protects him from criminal prosecution, except with the sanction of the Central Government, if he, in good faith, has acted in obedience of an order. See Nagraj v State of Mysore AIR 1964 SC 269 [LNIND 1963 SC 153]. 43 AIR 1955 All 379 [LNIND 1955 ALL 14], (1955) Cr LJ 905(All) (DB). 44 Gopalia Kallaiya (1923) 26 Bom LR 138. 45 Chaman Lal v Emperor AIR 1940 Lah 210; see also Re Charandas AIR 1950 East Punjab 321. 46 Pitchai v State by Inspector of Police, Vadamadurai, (2004) 13 SCC 579. 47 AIR 1989 SC 714 [LNIND 1989 SC 833], (1989) Cr LJ 903(SC). 48 AIR 1964 SC 33 [LNIND 1963 SC 159]. 49 AIR 1980 SC 605 [LNIND 1979 SC 492]. See also Jayantila K Katakia v P Govindan Nair AIR 1981 SC 1196; Ramesh Chotalal Dalal v Union of India AIR 1988 SC 775 [LNIND 1988 SC 74]. 50 Harbhajan Singh v State of Punjab AIR 1966 SC 97 [LNIND 1965 SC 65]. 51 AIR 1953 Mad 936 [LNIND 1953 MAD 266]. 52 Re SK Sundaran (2001) Cr LJ 2932(SC). 53 Bhawoo Jiwaji v Mulji Dayal (1888) ILR 12 Bom 377; Po Mye v King AIR 1940 Rang 129; Waryam Singh v Emperor AIR 1926 Lah 554; State of Orissa v Ram Bahadur Thapa AIR 1960 Ori 161 [LNIND 1959 ORI 44], (1960) Cr LJ 1349(Ori). 54 AIR 1966 SC 97 [LNIND 1965 SC 65], (1966) Cr LJ 82(SC) ; see also Baburao v Sk Biban (1984) Cr LJ 350(Ori). 55 AIR 1970 SC 1372 [LNIND 1970 SC 106], (1970) 1 SCC 590 [LNIND 1970 SC 106]. 56 See also Sewakram Sobhani v RK Karanjiya AIR 1981 SC 1514 [LNIND 1981 SC 265], (1981) 3 SCC 208 [LNIND 1981 SC 265]; Express Newspapers Pvt Ltd v Union of India AIR 1986 SC 872 [LNIND 1985 SC 321], (1986) 1 SCC 133 [LNIND 1985 SC 321]. 57 AIR 1987 SC 1265 [LNIND 1987 SC 366], (1987) 2 SCC 498 [LNIND 1987 SC 366]. 58 AIR 1993 SC 2383, (1993) 4 SCC 51. 59 King Emperor v Tustipada Mandal AIR 1951 Ori 284 [LNIND 1948 ORI 2]; see also, Bouda Kui v Emperor AIR 1943 Pat 64. 60 Nagraj v State of Mysore AIR 1964 SC 269 [LNIND 1963 SC 153]. 61 Law Commission of India, ‘Forty-Second Report: The Indian Penal Code’, Government of India, 1971, pp 82-83. For recommendations suggested by Justice RL Narasimham, a Member of the Law Commission, see ‘Mistake of Law’, above. 62 It recommended the deletion of Illustration (a) appended to original s 76 of the Code owing to its ambiguity regarding the nature of command of superior authority and controversial questions arising therefrom. Illustration (b) of s 76 is shifted, as illustration (a), to the proposed s 79. End of Document CHAPTER 7 Judicial Acts Page 3 of 5 without believing in good faith. In the instant case, since there was no dispute that the judicial officer concerned had jurisdiction, he would be protected from civil liability. The appeal was dismissed and conviction and sentence maintained. In Ram Paratap Sharma v Dayanand ,18 a Judge of the Punjab and Haryana High Court visited a sessions court and also met members of the Bar. While addressing the members of the Bar, he criticised the government policy and openly attacked the government in its political and administrative decisions. The members of the Bar wrote a letter to the Prime Minister and the Chief Justice of India stating that the action of the judge was not like a judge, but like a politician, expressed their regret over it and urged the government to take appropriate act ion in this regard. A contempt notice was issued by the Punjab and Haryana High Court against the signatories to the letter. In reply to the contempt notice, the members of the Bar asserted that the letter was addressed bona fide, in good faith and without ill-will and no publicity was given to it. It was intended to be a mere privileged communication made solely with a view to upholding dignity of the court. If the letter was constituted to be contempt of the court, they tendered their apology. The full Bench of the high court accepted the apology, and discharged the petitioners. On appeal, the Supreme Court held that if any judge addresses on political problems or controversies, the judge exposed himself to discussion by public. The judge in such a case cannot take shelter behind his office. It is no part of the duty of a judge nor is it a duty in the discharge of the office of a judge to go and address a meeting on political matters. Since, the views expressed in such meetings are his personal opinion, the protective umbrella of the court cannot be used by way of bringing charges of contempt. The Supreme Court directed that the contempt proceedings be dropped. In Daya Shankar v High Court of Allahabad ,19 a judicial officer was found copying while writing his first semester LL M examination. The Supreme Court held that the conduct of the petitioner was unworthy of a judicial officer. According to the court, judicial officers cannot have two standards—one in the court and another outside the court. They must have only one standard of rectitude, honesty and integrity. It upheld the dismissal of the petitioner from judicial service.20 In Yaqub Ali v State of Rajasthan ,21the rights of parties in a suit for possession was being decided by the Rajasthan High Court, while the magistrate initiated parallel criminal proceedings under s s 145 and 147 of the CrPC. The high court held that the magistrate had no power or jurisdiction to do so. It was contended that the action of the magistrate amounted to contempt of court. However, the high court held that the magistrate committed only an error of judgment, and such an act ion was protected under the Judicial Officers Protection Act 1850. EXERCISE OF POWER BELIEVED IN GOOD FAITH TO BE GIVEN BY LAW The protection under s 77 extends not only to acts of a judge in exercise of judicial power given to him by law, but also to acts done by him in exercise of judicial power which he believes in good faith22 was given to him by law.23 So, even if a judge acts beyond his jurisdiction, provided it is under the bona fide belief that he has the jurisdiction, then even such acts are protected by this section.24However, if the act ion of a judicial officer is actuated by mala fides or improper motive, then it exhibits lack of good faith and hence, he cannot get the protection of s 77. Where a magistrate ordered wrongful imprisonment, he was held liable and was offered no protection.25 Where a judicial officer was to sign warrants for arrest of convicted persons but warrants were signed and issued even against acquitted person due to negligence, it was held that the judicial officer could not get protection or immunity.26 A warrant for execution of a sentence was issued under s 425, Crpc. The fact that the sentences were to run concurrently was not mentioned. The accused, against whom the warrant was issued, was detained beyond the term. The officer who issued the warrant was protected.27 ACTS DONE PURSUANT TO JUDGMENT OR ORDER OF COURT Section 78, as mentioned earlier, protects ministerial and other staff, who may be required to execute orders of the court. If such immunity was not extended, then executing or implementing court orders would become impossible. The protection extends even if the court order, pursuant to which the person may act, was actually without or in excess of jurisdiction, provided the person who was executing the order believed, in good faith, that the court concerned had such jurisdiction.28A magistrate had issued a warrant to attach some properties that included properties of other parties of a partnership firm. But the order was not challenged as being without jurisdiction by the parties concerned. The executive officer believed in good faith CHAPTER 7 Judicial Acts Page 4 of 5 that he was bound to execute the order and attached the properties of the partnership firm by act ual seizure. The Calcutta High Court held that the act of the executing officer was protected.29 In Sheo Narain v State of Rajasthan ,30 the petitioner had obtained a decree in a civil suit and became a khatedar tenant of a piece of land. Thereafter, a complaint was registered against him under ss 209, 210, and 420 of the IPC in the police station, stating that he had suppressed the fact that the land belonged to a person from a scheduled caste, and got the sale deed registered, on the basis of which the decree was obtained. The High Court of Rajasthan quashed the FIR, holding that the petitioner became a khatedar tenant pursuant to the decree of a court. Until such a decree is set aside, he would be protected under s 78 of the IPC and no criminal complaint could be maintainable against him. However, protection of s 78 cannot be extended to the execution of oral orders of a judge. It also does not protect a person if he exceeds the power given to him by a court. Apart from the protection given by these sections, the Supreme Court in Delhi Judicial Service Association, Tis Hazari Court v State of Gujarat ,31 has issued certain directions in respect of arrest of judicial officers in the event of their being involved in a criminal case. In this case, the Chief Judicial Magistrate (CJM), Nadiad, in Gujarat had antagonised the local police. A false charge of having consumed liquor in breach of the prohibition law enforced in the State of Gujarat was foisted on him. A police inspector arrested, assaulted and handcuffed the CJM, tied him with a thick rope like an animal and made a public exhibition of him by sending him in the same condition to the hospital for medical examination. Photographs of the CJM in handcuffs with a rope tied around his body along with the constables were published in newspapers all over the country. The Supreme Court initiated contempt proceedings against all the concerned police officials and also punished them for the same. Apart from that, the court also issued directions that if a judicial officer is to be arrested for any offence, it should be done under intimation to the district judge or the high court. If circumstances necessitate immediate arrest, a formal or technical arrest may be effected and the same be informed to the district judge and the chief justice of the high court. On arrest, the judicial officer shall not be taken to the police station without prior order of the district judge. The Supreme Court also directed that in all instances when a judicial officer is arrested, handcuffs should not be used.32 PROPOSALS FOR REFORM The Law Commission of India33 recommended no changes in the provision dealing with protection accorded to a judge under s 77 of the IPC. However, recalling a large number of judicial pronouncements wherein public servants executing courts’ orders have been badly injured, and the courts have acquitted their assailants on the sole ground that the courts’ order was without jurisdiction, it opined that a public servant executing such an order should not be put in the risk of being injured as a result of the exercise of the right of private defence by the party against whom he attempts to execute the judgment or order of a court so long as he acts in good faith. Stressing that public policy warrants such a protection for the prompt execution of courts’ orders, the Law Commission recommended the insertion of a new provision34 in s 99 of the IPC to make the immunity from prosecution provided in s 78 co-extensive with the deprivation of the right of private defence provided in the first paragraph of s 99 of the IPC. 1 ‘Ministerial staff’ refers to various officials attached to a court, whose duty is to execute mandates lawfully issued by judicial officers, ie, magistrates or judges. Such officials are, for example, court clerks, bailiffs, ameenas and so on. 2 Hari Singh Gour, Penal Law of India, vol I, 11th edn, Law Publishers, Allahabad, 1998, p 434. 3 Anowar Hussain v Ajoy Kumar Mukherjee AIR 1965 SC 1651, 1965 Cr LJ 686. 4 Khanapuram Gandaiah v Administrative Officer AIR 2010 SC 615 [LNINDORD 2010 SC 164], (2010) 2 SCC 1 [LNINDORD 2010 SC 164]. 5 The words ‘Court of Justice’, as defined under s 20 of the IPC, denote a judge who is empowered by law to act judicially alone, or a body of judges which is empowered by law to act judicially. 6 The protection under the Act is also available to a person (other than a judge) who is obliged to adjudicate upon the rights of persons, or to punish for misconduct, irrespective of the form of proceedings resorted by such a person. For further comments and proposals for reform in the Judicial Officers Protection Act, see Law Commission of India, ‘One Hundred and Fourth Report on The Judicial Officers Protection Act, 1850’, Government of India, 1984. CHAPTER 7 Judicial Acts Page 5 of 5 7 Judges (Protection) Act, 1985, s 3(1). 8 Brajnandan Sinha v Jyoti Narain AIR 1956 SC 66 [LNIND 1955 SC 98], 1956 Cri LJ 156. 9 Exceptions 2, 3 and 7 to s 499 protect a judge from liability indicated under its s 500. 10 Kamala Patel v Bhagwan Das AIR 1934 Nag 123. 11 Brajnandan Sinha v Jyoti Narain AIR 1956 SC 66 [LNIND 1955 SC 98]. 12 Surendra Kumar Bhatia v Kanhaiya Lal (2009) 12 SCC 184 [LNIND 2009 SC 209], AIR 2009 SC 1961 [LNIND 2009 SC 209]. 13 Ss 219 and 220 of the Penal Code provide punishment for a judge if he acts corruptly or maliciously or contrary to law in a judicial proceeding. 14 AIR 1965 SC 1651. 15 Suresh Kumar Sharma v Durgalal Vijay (2011) ILR 1 MP 628. 16 AIR 1981 SC 755 [LNIND 1980 SC 481]. 17 Muddada Chayanna v G Veerabhadrarao AIR 1979 AP 253 [LNIND 1979 AP 66] (DB). 18 AIR 1977 SC 809 [LNIND 1976 SC 274], (1977) Cr LJ 579(SC). 19 AIR 1987 SC 1469. 20 See also Ravichandran Iyer v AM Bhattacharjee J (1995) 5 SCC 457 [LNIND 1995 SC 876]; K Veeraswami v Union of India (1991) 3 SCC 655 [LNIND 1991 SC 320]. 21 (1995) Cr LJ 1376 (Raj). 22 The expression ‘in good faith’, used in s 77, implies that care and attention which dictates of justice, prudence and common sense would demand in the particular case. See (1904) 1 Cr LJ 146. A judicial officer cannot be held to have acted ‘in good faith’ in the discharge of his duties, unless he act ed reasonably, circumspectly and carefully. See Collector of Sea Customs v Chidambarm (1875) ILR 1 Mad 89. 23 Kamala Patel v Bhagwan Das AIR 1934 Nag 123. The burden of proving that he acted ‘in good faith’ lies upon the judge. See (1904) 1 Cr LJ 146. 24 A mistake of law, though made in good faith, is not a good defence under ss 76 and 79 of the IPC. But such a mistake may be a good defence under ss 77 and 78 of the Code. See (1904) 1 Cr LJ 146. 25 State of Uttar Pradesh v Tulsi Ram AIR 1971 All 162. 26 (1970) All Cr LR 429. 27 (1985) Cr LJ 642. 28 Kapur Chand v State of Himachal Pradesh (1976) 3 Cr LT 376(HP). 29 AIR 1973 Cal 372 [LNIND 1973 CAL 67]. 30 (1999) 2 Crimes 169(Raj). 31 AIR 1991 SC 2176 [LNIND 1991 SC 446]. 32 Ibid., pp 2212-13. 33 Law Commission of India, ‘ Forty-Second Report: The Indian Penal Code’, Government of India, 1971, pp 86 and 101-104. 34 The recommended clause runs: Restrictions on the right of private defence.—(1) There is no right of private defence against an act which does not reasonably cause an apprehension of death or of grievous hurt, if the act is done or attempted to be done: (a) by a public servant act ing in good faith in pursuance of the judgment or order of a court of justice, though the court may have had no jurisdiction to pass such judgment or order, provided the public servant believes in good faith that the court had such jurisdiction...; see Law Commission of India, ‘Forty-Second Report: The Indian Penal Code’, Government of India, 1971, p 104. End of Document CHAPTER 8 Accident and Misfortune Page 3 of 6 the act must have been done ‘with proper care and caution’ and the amount of care and circumspection taken by an accused must be one taken by a prudent and reasonable man in the circumstances of a particular case. If an act is done without proper care and caution, an accused, therefore, is not entitled to the benefit of s 80.19 In Bhupendrasinh A Chudasama v State of Gujarat ,20 the accused constable, along with the head constable, was on patrol duty at a dam site, which was in danger on account of heavy rainfall. The accused took the plea that he saw a fire and hence fired. The accused shot at close range without knowing the identity of his target. The Supreme Court held that the act was done without any care and caution. His conviction for murder was upheld and he was sentenced to life imprisonment. In Sita Ram v State of Rajasthan ,21 the accused was digging the earth with a spade. The deceased came to collect the mud. The spade hit the deceased on the head and he succumbed to the injuries. The accused pleaded that it was an accident. The Rajasthan High Court held that the accused was aware that other workers would come and pick up the mud. The accused did not take proper care and caution and acted negligently. He was convicted under s 304A, IPC. In Shankar Narayan Bhadolkar v State of Maharashtra ,22 the Supreme Court refused to give benefit of s 80 to a person who picked up a gun, unlocked it, loaded it with cartridges and shot dead, from a close range, one of the invitees for dinner at his place. It held that act of the accused was without proper care and caution, and deliberate. NECESSITY Section 81. Act likely to cause harm, but done without criminal intent, and to prevent other harm.— Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property. Explanation.— It is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm. Illustrations (a) A, the captain of a steam vessel, suddenly and without any fault or negligence on his part, finds himself in such a position that before he can stop his vessel, he must inevitably run down a boat B, with twenty or thirty passengers on board, unless he changes the course of his vessel, and that, by changing his course, he must incur risk of running down a boat C with only two passengers on board, which he may possibly clear. Here, if A alters his course without any intention to run down the boat C and in good faith for the purpose of avoiding the danger to the passengers in the boat B, he is not guilty of an offence, though he may run down the boat C by doing an act which he knew was likely to cause that effect, if it be found as a matter of fact that the danger which he intended to avoid was such as to excuse him in incurring the risk of running down the boat C. (b) A, in a great fire, pulls down houses in order to prevent the conflagration from spreading. He does this with the intention in good faith of saving human life or property. Here, if it be found that the harm to be prevented was of such a nature and so imminent as to excuse A’s act, A is not guilty of the offence. Section 81, IPC, embodies the principle that where the accused chooses lesser evil, in order to avert the bigger, then he is immune. The genesis of this principle emanates from two maxims: quod necessitas non habet leegem (necessity knows no law) and necessitas vincit legem (necessity overcomes the law). Doctrine of Necessity Section 81 of the recognises and embodies the doctrine of necessity as a defence against criminal liability. Necessity in legal context involves the judgment that the evil of obeying the letter of the law is socially greater in the particular circumstances than the evil of breaking it. In other words, the law has to be broken to achieve a greater good.23The illustrations to the section amply explain the context in which the doctrine of necessity may be pressed. In illustration (a), it is seen that the captain of a ship when confronted with the option of running down a ship with 20 or 30 passengers or a smaller boat with two passengers, then his option to run down the smaller boat is protected under this section. Illustration (b) is of a situation where a person pulls down houses to prevent the fire from spreading. In both the illustrations, one may notice that the act of running down a small vessel or pulling down houses is per se an offence. But when it is done not with the intention of causing harm to the passengers CHAPTER 8 Accident and Misfortune Page 4 of 6 of the smaller vessel or with the intention of destroying the neighboring houses but only to prevent greater harm, then, this section would apply. It is pertinent to note that although s 81 does not specifically refer to ‘greater evil’ or ‘lesser evil’, it in effect deals with the case of ‘lesser evil’. Mens Rea Sections 80 and 81 are analogous provisions, the former dealing with accidents and the latter with inevitable accidents. However, there is a difference as to the nature and extent of mens rea prescribed under both these sections. Section 80 stipulates the absence of criminal intention as well as criminal knowledge. But s 81 stipulates the absence of criminal intention alone. Thus, the terms ‘without criminal intention’ or ‘knowledge’ are present in s 80, whereas, the term used in s 81 is ‘without criminal intention’ alone. In fact, s 81 clearly contemplates a situation where the accused has knowledge that he is likely to cause harm, but it is specifically stipulated that such knowledge shall not be held against him. Thus, in certain situations, even though the presence of knowledge is sufficient mens rea, in this section, knowledge alone will not be sufficient if there is absence of criminal intention. Though the demarcating line between knowledge and intention is thin, it is, however, not difficult to perceive that they connote different things.24 Preventing or Avoiding Other Harm The immunity from criminal liability under s 81 will be available where an offence is committed without any criminal intention, to cause harm and in good faith and if such offence is committed for the purpose of preventing or avoiding other harm to person or property. In order to attract s 81, it is necessary to show that the act complained of was done in good faith in order to prevent or avoid greater harm to the person or property of others.25However, the harm caused need not necessarily be lesser than the harm averted, though this question would become material when judging the good faith of an act. The explanation to the section provides that the justification for the harm caused and whether the risk caused should be excused, is a question of fact to be determined in each case. In Re Ramaswamy Ayyar,26 where a village magistrate put a restraint upon a drunkard who was threatening to commit breach of peace and was a danger to other villagers, it was held that the village magistrate, even as a private citizen was protected by this section. The ratio in Ramaswamy Ayyar’s case was confirmed by a Full Bench of the Madras High Court in Gopal Naidu v Emperor .27 In this case, a drunken man carrying a revolver in his hand was disarmed and put under restraint by police officers, though the offence of public nuisance under s 290 was a non-cognisable offence without a warrant. Though the police officers were prima facie guilty of the offence of wrongful confinement, it was held that they could plead justification under this section. In this case, the Madras High Court held that the person or property to be protected may be the person or property of the accused himself or of others. The word ‘harm’ in this section means physical injury.28 In Bishambhar v Roomal ,29 wherein the complainant, who misbehaved with a chamar girl and who agreed in writing to abide by the decision of the panchayat, was taken round the village with blackened face and was given a shoe-beating, the Allahabad High Court ruled that members of the panchayat were not guilty for their acts alleged contrary to ss 323 and 506 of the IPC as they acted ‘without any criminal intention’, to save the complainant from serious consequences of his own misbehaviour. Necessity as a Reason for Homicide The question, whether the doctrine of necessity can be applied as a justification for killing another human being, is a very tricky question. The usual view is that necessity is no defence to a charge of murder.30 But, the question becomes much more difficult in cases of emergency. Killing a person in self defence may appear to be an example of necessity. While self defence may overlap necessity, the two are not the same. Private defence operates only against aggressors. Generally, the aggressors are wrongdoers, while the persons against whom act ion is taken by necessity, may not be aggressors or wrongdoers. Unlike necessity, private defence involves no balancing of values.31 In United States v Holmes ,32 the accused was a member of the crew of a boat after a shipwreck. Fearing that the boat would sink, he, under the orders of the mate, threw 16 male passengers overboard. The accused, though not convicted for murder, was convicted for manslaughter and sentenced to six months’ imprisonment with hard labour. In an English case, R v Dudley and Stephens ,33 the crew of a yacht, ‘Mignonette’, were cast away in a storm and were compelled to put into an open boat, which had no water or food. On the twentieth day, having had nothing to eat for eight days, and being 1,000 miles away from land, two of the crew (Dudley and Stephens) agreed that the cabin boy, who was likely to die first, should be killed to feed themselves upon his body; and one of them carried out the plan. The men ate his flesh and drank his blood for four days. They were then rescued by a passing vessel and were subsequently charged with murder. The jury34 returned a special verdict in which they declared that: CHAPTER 8 Accident and Misfortune Page 5 of 6 ...[I]f the men had not fed upon the body of the boy, they would probably have not survived to be so picked up and rescued, but would within the four days have died of famine; that the boy, being in a much weaker condition, was likely to have died before them; that at the time of the act there was no sail in sight, nor any reasonable prospect of relief; ...that assuming any necessity to kill anyone, there was no greater necessity for killing the boy than any of the other three men; but whether upon the whole matter, the prisoners were and are guilty of murder, the jury are ignorant, and refer to the court. The question was considered by a divisional court of five judges, which held that the act was murder and awarded them the sentenced of death. However, their death sentence was commuted by the Crown to a six months’ imprisonment. The principles that can be deduced from the Dudley and Stephens are: (1) self-preservation is not an absolute necessity; (2) no person has a right to take another’s life to preserve his own, and (3) there is no necessity that justifies homicide.35 In the above-mentioned cases, it is difficult, just as the jury in the Dudley’s case found difficult, to decide which is a matter of greater harm and whether the act was justified. In the Holmes, the crew threw out sixteen passengers. The choice of persons whether from among the crew or passenger was a matter of confusion and it was indeed impossible to decide whether to enable the other people on the boat to live, they were justified in unilaterally deciding to kill sixteen passengers. The same question would arise in the Dudley’s case as to the justification in picking upon the cabin boy and not anybody else. Where necessity may not justify totally the act ion of the accused in situations mentioned in the Holmes and the Dudley, the compulsion of circumstances may go strongly in alleviation of the guilt of the accused and in mitigating the sentence of the accused. PROPOSALS FOR REFORM Section 81, as explained in preceding paragraphs, excuses a doer of a deliberate act done, in good faith and without any criminal intention but with the requisite knowledge, to avoid other greater imminent harm. This legislative intent is well reflected in s 81 and in the explanation and illustrations appended thereto. However, the Law Commission of India is not impressed by the existing scheme of splitting this idea in s 81 and in its explanation. It feels that such a splitting is unnecessary. For easier understanding of the provision, it recommended that existing s 81 be re-worded as: Nothing is an offence which, though done with the knowledge that it is likely to cause harm, is done in good faith for the purpose of preventing or avoiding other harm to person or property, provided the latter harm is of such a nature and so imminent as to justify or excuse the risk of doing the act with such knowledge.36 It, however, recommended that the illustrations be kept intact for better understanding of the legislative intent of s 81. 1 Atmendra v State of Karnataka AIR 1998 SC 1985 [LNIND 1998 SC 386], (1998) Cr LJ 2838(SC). 2 Sukhdev Singh v Delhi State (Govt of NCT of Delhi) (2003) 7 SCC 441 [LNIND 2003 SC 728], AIR 2003 SC 3716 [LNIND 2003 SC 728]. 3 John Dawson Mayne, The Criminal Law of India, Higginbothams Ltd, second edn, 1901, p 394. 4 Hari Singh Gour, Penal Law of India, vol 1, 11th edn, Law Publishers, Allahabad, 1998, p 588-89. 5 Sir James Fitzjames Stephen, A Digest of Criminal Law, ninth edn, Sweet & Maxwell, London, art 316. 6 Tunda v Rex AIR 1950 All 95 [LNIND 1949 ALL 74]. 7 RC Nigam, Law of Crimes in India, Asia, London, 1965, p 320. 8 AIR 1950 All 95 [LNIND 1949 ALL 74]. 9 Section 87 exempts an unintentional death and grievous hurt. CHAPTER 9 Infancy Page 2 of 6 and that he knew that his conduct was not merely mischievous but ‘wrong’. Liability of such a child depends upon his maturity of understanding of the nature and consequences of his conduct and not on his age. The question relevant for determining his liability, therefore, is not one of his age but of the requisite degree of his maturity of understanding at the time of commission of a crime. It therefore becomes necessary for the defence to prove that the child was not only below 12 when he committed a crime in question but also had not attained the sufficient maturity required to understand the nature and consequences of his conduct. In the absence of such evidence, a court presumes that the child accused intended to do what he really did.2 However, once a court comes to a conclusion that the concerned child has not attained sufficient maturity of understanding, then the immunity conferred by s 83 is as absolute as that conferred by s 82.3 The presumption of innocence of a child is based on the principle of immaturity of intellect. ‘The younger the child in age, the lesser the possibility of being corrupt’, seems to be its premise. This is to say, ‘malice makes up for age,’ i.e., quia malitia supplet aetatem. Hence, as age advances, the maxim loses force. Beyond the age of 12, there is no immunity from criminal liability, even if the offender is a person of undeveloped understanding and incapable of understanding the nature and consequences of his act.4 But, even if the accused is past the age of 12, the question of his age does not become totally irrelevant. The question of his youth and maturity of understanding will be relevant in the context of the sentence to be passed against him in the event of his conviction.5 However, the treatment of all juveniles, i.e., persons up to the age of 18 is now governed by the Juvenile Justice (Care and Protection of Children) Act 20006 (Juvenile Justice Act). It repealed the thitherto prevailing the Juvenile Justice Act 1986 (repealed Juvenile Justice Act). (3) Maturity of Understanding Section 83 stipulates that when a child accused of an offence is above seven and under 12 years, the court has to ascertain if the child has sufficient maturity of understanding, so as to understand the nature and consequence of his conduct. The words ‘consequences of his conduct’ do not mean penal consequences but the natural consequences which result from his act. Before convicting a child who is over 7 years but under 12 years of age, a judge is required to first conduct an enquiry and give a finding of fact as to whether the child had attained sufficient understanding to judge the nature of consequences of his act. Proof of attainment of sufficient maturity can be arrived at by a court on the consideration of all the circumstances of the case. It can be inferred from the nature of the act and his subsequent conduct and other allied factors such as his demeanor and appearance in the court. It need not be proved by the prosecution by positive evidence.7 However, a combined reading of ss 82 and 83, which respectively confer immunity from criminal liability to a child ‘under seven’ and ‘above seven’, reveals that criminal liability of an infant of ‘seven’ years is left out. However, Hari Singh Gour, with a view to overcoming the lacuna, suggests that such an infant ‘should be dealt under s 82 rather than under s 83’ of the Code.8 Juvenile Justice (Care and Protection of Children) Act, 2000 A study of the Juvenile Justice Act is essential for a complete understanding of the law relating to criminal liability of children. It is a comprehensive legislation dealing not only with juveniles in conflict with law, i.e., juveniles who are alleged to have committed an offence, but also provides for care, protection, treatment and rehabilitation of both ‘juveniles in conflict with law’ and ‘children in need of care and protection’.9 The definition of ‘juvenile’ or ‘child’ under this Act is much wider than what is provided under ss 82 and 83 of the Code. Section 2(k) of the Act defines ‘juvenile’ or ‘child’ as ‘a person who has not completed eighteenth year of age’. Though the Act does not provide for absolute immunity from criminal liability for offences committed by juveniles as in ss 82 and 83, the provisions are almost akin to it. The Act provides that no child, who has committed an offence, be sentenced to death or imprisonment for life or committed to prison in default of payment of fine or in default of furnishing security.10 It also, inter alia, stipulates that the child who has committed an offence should be sent home after advice or admonition; released on probation of good conduct and placed under the care of parents or guardian; or sent, for a period not exceeding three years, to a Special Home.11 The Act further removes all disqualifications attached to conviction of a juvenile in conflict with law.12Thus, though absolute immunity from criminal liability is not provided to juveniles under this Act, upon a reading of all the sections, it would appear that something akin to immunity is provided to delinquent juveniles under this Act. CHAPTER 9 Infancy Page 3 of 6 DETERMINATION OF AGE OF AN ACCUSED JUVENILE One of the major questions which confront the courts in respect of juveniles is the determination of age of a juvenile accused of a crime. Three issues have constantly come up before the courts in respect of juvenile delinquents. The first is the relevant date, i.e., the date of commission of the offence or the date on which the accused is brought before a competent authority under the Children Act or a court, for reckoning the age of the child. The second is the nature of the evidence that is required to prove the age of the juvenile delinquent. And, the third is the stage at which the plea that the accused child is a juvenile can be taken. In Umesh Chandra v State of Rajasthan ,13 a three-judge Bench of the Supreme Court, while dealing with the Rajasthan Children Act 1970, held that ‘the relevant date for applicability of the Act so far as the age of the accused, who claims to be a child, is concerned, is the date of the occurrence and not the date of the trial’.14 However, a two-judge Bench of the Supreme Court in Arnit Das v State of Bihar ,15 without taking note of the Umesh Chandra dictum, ruled that the crucial date to determine whether an accused is juvenile or not (under the repealed Juvenile Justice Act—a pari materia statute with the Rajasthan Children Act 1970) is the date on which the accused is produced before the court. A five-judge Bench of the Supreme Court, relying upon the review memorandum not challenging the correctness of the finding that the petitioner was not a juvenile (under the repealed Juvenile Justice Act) on the date of offence but contesting only the effect of two-Judge Bench ruling in the Arnit Das in the light of the Umesh Chandra case, also dismissed a review petition on the ground that it does not entertain questions of academic interest. It, therefore, refused to answer the question of relevant date for determining the age of a juvenile delinquent (for applicability of the repealed Juvenile Justice Act ).16 However, the judicial ambivalence was put to rest in 2005 in Pratap Singh v State of Jharkhand .17 A Constitution Bench of five judges of the Supreme Court which, in the backdrop of the conflicting ratio of the Arnit Das and the Umesh Chandra, was called upon to lay down correct law regarding the relevant date for determining the age of an accused as a juvenile offender. One of the questions formulated for judicial deliberation by the Bench was: what would be reckoning date in determining the age of the alleged offender as juvenile offender, viz, the date when produced in a court or a competent authority (as has been held in Arnit Das) or the date when on which the offence was committed (as has been held in Umesh Chandra). Stressing the legislative intent of juvenile legislations and their legislative scheme striving for the protection and rehabilitation of juvenile delinquents, the Constitution Bench held that the reckoning date for the determination of the age of the juvenile is the date of an offence committed by him and not the date when he is produced before the Juvenile Board or the court. It accordingly ruled that ‘the law laid down’ in Umesh Chandra is the ‘correct law’ and not the ruling in Arnit Das.18 In Bhoop Ram v State of Uttar Pradesh ,19 the Supreme Court was dealing with a case where there was a conflict in respect of the age between the school certificate produced by the accused and the medical certificate. According to the school certificate, the age of the accused on the date of the commission of the offence was below 16 years, but the medical certificate given by the Chief Medical Officer certified that the accused had completed 16 years on the date of occurrence. The Supreme Court held that a medical certificate is based on estimate and the possibility of an error of estimate creeping into the opinion cannot be ruled out. Since there was no material to throw doubts on the entries in the school certificate, the court accepted the age as shown in the school certificate. The accused faced a charge of murder and was awarded life imprisonment by the trial court. The Supreme Court, in view of the fact that the accused had been wrongly sentenced to imprisonment instead of being treated as a child, quashed the sentence awarded to him and directed his release.20 If school admission certificate and academic records indicating age of the accused child are doubtful and offer speculations about his real age, medical evidence based on scientific investigation receives precedence over the school record.21 Generally, proof of age is a matter of factual finding. The material evidence to establish the age of the accused has to be produced before the trial court,22 and it is ordinarily the duty of the trial court to determine the age of the accused before pronouncing the judgment. While determining age of the accused for finding out whether he is juvenile or not, a court is not expected to adopt a hyper-technical approach in appreciating the evidence adduced by the accused. And if two views are possible on the said evidence, it should lean in favor of holding the accused to be a juvenile in borderline cases.23 However, very often this is not done. In Gopinath Ghosh v State of West Bengal ,24 the plea that the accused was a minor was raised for the first time before the Supreme Court. The Supreme Court, observed that in view of the underlying intendment and beneficial provisions of the West Bengal Children Act 1959, read with cl (f) of art 39 of the Constitution, the court considered it proper not to allow a technical contention that the plea of the accused being a minor was being raised for the first time in the Supreme Court for that would CHAPTER 9 Infancy Page 4 of 6 thwart the benefit of the provisions being extended to the accused, if he was otherwise entitled to such provisions. The Supreme Court directed the sessions judge to enquire into the matter and submit a finding as to the age of the accused. The sessions judge, after hearing both the sides, certified that the accused was aged between 16 and 17 years. Since the West Bengal Children Act 1959, defined ‘child’ as a person below 18 years, the Supreme Court held that the accused was entitled to protection under the Act and accordingly set aside the conviction of the accused.25 In Bhola Bhagat v State of Bihar ,26 the Supreme Court observed that when a plea is raised on behalf of an accused that he was a child, at the time of the commission of the offence, it becomes obligatory for the court in case it entertains any doubt about the age as claimed by the accused, to hold an enquiry for determination of age. Keeping in view the beneficial nature of the socially oriented legislation, it is an obligation of the court when such a plea is raised, to examine that plea with care, and it cannot fold its hands without returning a positive finding in that regard. The apex court also directed the high courts to issue administrative directions to the subordinate courts that whenever such a plea is raised before them and if they entertain any reasonable doubt about the correctness of the plea, they must, as a rule, conduct an inquiry by giving opportunity to the parties to establish their respective claims and return a finding regarding the age of the concerned accused and then to deal with the case in the manner provided by law. ARREST OF A JUVENILE OFFENDER As s 82 exempts a child under seven years of age from any criminal liability, it is illegal for the police officer to arrest a boy under seven years of age.27Now, as per s 12 of the Juvenile Justice Act, any juvenile accused of a bailable or non-bailable offence, unless his release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger, is to be released on bail with or without surety. He cannot be put in a police station or jail. However, if in the interest of the juvenile, the Juvenile Justice Board is of the opinion that the juvenile should not be released on bail, he should be kept in an Observation Home or a place of safety. And his parent or guardian must be immediately informed.28 TRIAL OF DELINQUENT JUVENILES As per s 10 of the Juvenile Justice Act every juvenile in conflict with law who is accused of committing an offence is required to be placed under the charge of the special juvenile police unit and the designated police officer is under obligation to immediately report it to the Juvenile Justice Board constituted under the Act. The Board shall hold an inquiry to satisfy itself whether the juvenile has committed the offence or not.29No juvenile shall be charged with or tried for any offence together with a person who is not a juvenile, notwithstanding the provisions of the CrPC. Separate trials should be held for the juveniles and other accused.30 It may be noted that the language used in the Act is ‘hold the inquiry’ and not trial of the juvenile in conflict with law. This is to maintain the spirit of the Act, which has been enacted for the benefit of juveniles. SENTENCING OF JUVENILES Prior to the enactment of the Juvenile Justice Act, the courts have taken the view that the young age of the accused may be taken into consideration to award a lenient sentence. Now, s 16 of the Juvenile Justice Act provides that no delinquent juvenile shall be sentenced to death or imprisonment for life or committed to a prison in default of payment of fine or of furnishing security. Where a juvenile has attained the age of 16 and has committed a serious offence, the conduct and behavior of the child is such that it would not be in the interest of the accused or the other juveniles kept in the homes, the Juvenile Justice Board may order the delinquent juvenile to be kept in a place of safety and in a manner it deems fit. A child below 16 years of age, it was held, cannot be termed as a goonda and cannot be subjected to preventive detention under the Tamil Nadu Goondas Act.31 Where the offender was 15 years of age when he raped a girl of seven years and was convicted, the Andhra Pradesh High Court held that he could not be sentenced to rigorous imprisonment for a term of 10 years.32 CHAPTER 10 Insanity or Mental Abnormality PSA Pillai: Criminal Law,12th Edition PSA Pillai: Criminal Law,12th Edition > PSA Pillai: Criminal Law,12th Edition CHAPTER 10 Insanity or Mental Abnormality (Indian Penal Code 1860, Section 84) Section 84. Act of a person of unsound mind.— Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. INTRODUCTION Insanity or mental abnormality is one of the general exceptions to criminal liability recognised by the IPC. This is based on the principle of mens rea discussed earlier. By virtue of the maxim actus non facit reum nisi means sit rea, an act forbidden by penal law is not punishable if it is unaccompanied by a guilty mind. The justification for providing unsoundness of mind as a complete defence is that an insane person is incapable of forming criminal intent. Further, a mad man has no will (furiosis nulla voluntas est) and he is like one who is absent (furiosus absentis low est). In fact, a mad man is punished by his own madness (furiosus furore sui puniter).1 The foundation for the law of insanity was laid down by the House of Lords in 1843, in what is popularly known as the M’Naghten case.2 The accused by the name of Daniel M’Naghten suffered from a delusion that Sir Robert Peel, the then Prime Minister of Britain had injured him. He mistook Edward Drummond, Secretary to the Prime Minister for Sir Robert Peel. He shot and killed him. The accused took the plea of insanity. The medical evidence showed that M’Naghten was laboring under a morbid delusion which carried him away beyond the power of his own control. He was held to be ‘not guilty by reason of insanity’ by the jury.3 However, his acquittal caused public excitement and considerable furor. The verdict was made a subject of debate in the House of Lords. In consequence of the debate, to make the law on the topic clear, a set of five questions were formulated and put to the House of Lords for definite answers. Answers to these questions are known as the M’Naghten Rules.4 The second and third of the five questions and the answers thereto constitute the core of law of insanity as an extenuating factor. The following main principles were enunciated by the House of Lords in reply to the questions: (1) Every person is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary is established. (2) To establish the defence of insanity, it must be clearly proved that at the time of committing the crime, the person was so insane as not to know the nature and quality of the act he was doing, or if he did know it, he did not know that what he was doing was wrong. (3) The test of wrongfulness of the act is in the power to distinguish between right and wrong, not in the abstract or in general, but in regard to the particular act committed. Section 84, IPC, more or less, embodies the principles laid down in the M’Naghten Rules.5 However, the word ‘insanity’ is not used in s 84 of the Penal Code. It uses the expression ‘unsoundness of mind’, which is not defined in the Code. There, however, appears no difference in the etymological meaning of the two terms—’insanity’ and ‘unsoundness of mind’—as they mean a ‘defect of reason arising from a disease of the mind’. The courts in India have treated the expression ‘unsoundness of mind’ as equivalent to ‘insanity’.6 The Gauhati High Court, obviously influenced by the M’Naghten Rules, has ruled that an accused, to get the protection of s 84, is required to establish that he, at the time of committing the offence, was ‘labouring under such a defect of reason from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong’.7 CHAPTER 10 Insanity or Mental Abnormality Page 2 of 9 ESSENTIAL INGREDIENTS OF SECTION 84 In order to seek protection of s 84, IPC, it is necessary for an accused to prove that he, because of ‘unsoundness of mind’, was: incapable of knowing the ‘nature’ of the act ; or that the act was ‘contrary to law’; or that the act was ‘wrong’.8 The crucial point of time of such incapability due to unsoundness of mind is the time when he committed the offence.9 His insanity prior or subsequent to the commission of the offence is not in itself adequate to absolve him from the criminal liability. Unsoundness of Mind The term ‘unsoundness of mind’ has not been defined in the IPC. It means a state of mind in which an accused is incapable of knowing the nature of his act or that he is incapable of knowing that he is doing wrong or contrary to law. But, it has been equated by the courts to mean insanity. But the term insanity carries different meaning in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso fact exempted from criminal liability. The mere fact that the accused was conceited, odd, irascible and his brain is not quite alright, or that the physical and mental ailments from which he suffered had rendered his intellect weak and affected his emotions or indulges in certain unusual act s, or had fits of insanity at short intervals or that he was subject to epileptic fits and there was abnormal behavior or that behavior is queer are not sufficient to attract the provisions of s 84.10 A mere warped or twisted mind, which many a criminal has, cannot qualify to be termed ‘unsound mind’.11 It is not every type of insanity which is recognised medically that is given the protection of this section. Medical insanity is different from legal insanity. The insanity, for the purpose of s 84, should be of such a nature that it completely impairs the cognitive faculty of the mind, to such an extent that he is incapable of knowing the nature of his act or what he is doing is wrong or contrary to law.12 It is only the legal and not the medical insanity that absolves an accused from criminal responsibility.13 A person can be said incapable of knowing ‘nature’ of the act if he, at the time of doing it, was ignorant of the physical characters of the act. A good illustration is to be found in the case, mentioned by Sir James Stephen, of the idiot who cut off the head of a man whom he found sleeping because, as he explained, it would be such fun to watch him looking about for his head when he awoke. It is quite certain that he had no idea that his fun would be lost, because the man would never awake. If at the time of committing the offence the accused knew the nature of the act, he is obviously punishable.14 It is quite clear that if a person does an act and at the time doing it, by reason of insanity, does not know that the act is either wrong or contrary to law, he would be protected under s 84 even though he knew the nature of the act. The word ‘wrong’ is interpreted to mean a moral wrong and not a legal wrong since s 84 uses the alternative phrase ‘contrary to law’. The very fact that the authors of the IPC used both the words ‘wrong or contrary to law’ indicates that the word ‘wrong’ does not mean ‘contrary to law’ for if it is taken as ‘contrary to law’ the already existing phrase (‘contrary to law’) becomes redundant and the legislature would never use a word which is redundant.15 Section 84 will apply even in cases of fits of insanity and lucid intervals. But it must be proved in such cases that at the time of commission of the offence, the accused was suffering from a fit of insanity, which rendered him incapable of knowing the nature of his act16 and the act was not committed during lucid intervals.17 Kinds of Insanity There are no hard and fast rules in respect of what are the kinds of insanity which are recognised by courts as ‘legal insanity’. A survey of the case law reveals that the courts are influenced more by the facts of the case and the nature of the crime, rather than any formal evidence as to the kind of insanity that the accused is suffering from. Law groups insanity into two broad heads, namely: (a) Dementia naturalis, i.e. individuals who are insane from birth, and (b) Dementia adventitia or accidentialis, i.e., an individual who becomes insane after his birth. Hallucination or Delusion Hallucination or delusion is a state of mind where a person may be perfectly sane in respect of everything, but may be under a delusion in respect of one particular idea. The Madras and the Bombay High Courts have held that a person who is not insane but is merely suffering from some kind of obsession or hallucination, cannot invoke s 84 in his favor.18 Somnambulism Somnambulism is the unconscious state known as walking in sleep and if proved, will constitute unsoundness of mind and the CHAPTER 10 Insanity or Mental Abnormality Page 3 of 9 accused will get the benefit under s 84, IPC.19 Irresistible Impulse, Mental Agitation, Annoyance and Fury Irresistible impulse, mental agitation, annoyance and fury all merely indicate loss of control and not indicative of unsoundness of mind.20 Every minor mental aberration is not insanity21 and the circumstances indicating a mere probability of legal insanity cannot, however, be sufficient to discharge the onus of the accused to establish the plea of insanity. Irresistible impulse22 or impulsive insanity23 has never been accepted as defence under s 84 unless it is attributable to unsoundness of mind. Similarly, it is held that a crime attended with a mere agitation of mind24 or an uncommon ferocity25 or a moderate depression26 or an over-sensitiveness of mind or character27 does not necessarily lead to an inference that it had affected mental capacity of a person. A mere strange behavior exhibited by an accused after commission of an offence does not necessarily indicate the lack of requisite mens rea.28An act committed because of extreme anger (and not as a consequence of unsoundness of mind) does not bring its doer within the ambit of s 84.29 However, it is pertinent to note here that the mental abnormality falling short of complete insanity premised on the M’Naghten Rules warrants diminished responsibility under the Homicide Act 1957 of the United Kingdom, the birthplace of the M’Naghten Rules. It obviously covers cases of killings under irresistible impulse.30 Insanity as a Result of Smoking Ganja or Heavy Intoxication Where insanity is caused by excessive drinking even involuntary or by smoking ganja or other drugs, such insanity will also amount to unsoundness of mind, if it makes a person incapable of understanding what he is doing or that he is doing is something wrong or illegal. The accused can take shelter under this section, if he can prove that the insanity existed at the time of commission of the act.31 However, a mere loss of self-control due to excessive drinking or smoking ganja32 or abuse of cannabis & alcohol33 does not entitle him the cloak of immunity provided under s 84. Lack of Motive or a Trifling Matter The absence of a strong and adequate motive to commit a serious offence like murder is not by itself a proof of insanity.34 But the absence of motive may be taken into consideration along with other circumstances of the case to determine the question of sanity or otherwise of the accused.35 The fact that the accused caused the death of a person over a trifling matter will not by itself warrant a conclusion that he was insane, when no plea of insanity was taken before the trial court, nor was any material produced to establish the ground of insanity.36 A crime committed for a paltry reason is no defence.37 Excessive or Unusual Violence The brutality and ferociousness of the act by itself cannot lead to the conclusion of insanity.38 A brutal and callous way of committing a crime cannot by itself be an indicator of unsoundness of mind.39 A crime cannot be excused by its own atrocity.40 In order to determine whether the conduct of the accused was an insane act, one must look beyond the act itself for evidence as to how much the accused acted with knowledge.41 Unsoundness of Mind at the Time of Committing the Offence One of the main points to be highlighted under this section is that the law is concerned only with insanity that existed at the time of committing the offence.42 The existence of unsoundness of mind prior to the commission of the offence or after the commission of the offence is neither relevant nor per se sufficient to bring his case within the exception provided by s 84, though it may be taken into consideration for the purpose of deciding whether the accused was insane.43 What is crucial for him is to establish that he was insane at the time of committing the offence.44 The Supreme Court of India in State of Madhya Pradesh v Ahmadulla ,45 has held that the burden of proof is upon the accused to prove that he was suffering from unsoundness of mind at the time when he did the act. In this case, the accused had murdered his mother-in-law to whom he bore ill-will in connection with his divorce. It was proved that he did the act at night having got into the house by scaling over a wall with the aid of a torch light and entered the room where the deceased was sleeping. All this showed that the crime was committed not in a sudden mood of insanity, but one that was preceded by careful planning and exhibiting cool calculation in execution and directed against a person who he considered to be his enemy. In these circumstances, the Supreme Court, rejecting his plea of insanity and setting aside the acquittals of both the sessions court and the high court, convicted the accused of the offence of murder, and sentenced him to rigorous imprisonment for life. CHAPTER 10 Insanity or Mental Abnormality Page 6 of 9 notice and to place that evidence before the court. His failure to carry out the medical examination creates a serious infirmity in the prosecution case and the accused entitles the benefit of doubt and the consequential acquittal.70 However, it may be pertinent to point out that the courts in India have, by and large, been very cautious to accept the plea of insanity.71 PROCEDURE FOR TRIAL OF PERSONS OF UNSOUND MIND Special procedure is prescribed for the conduct of trial of accused who is of unsound mind or insane. Chapter 25 of the CrPC prescribes elaborate procedure for trial of a person of unsound mind. During a trial, if it appears to the judge that the accused is of unsound mind and consequently incapable of making his defence, then at the first instance, the trial court is required to conduct an enquiry and try the fact of such unsoundness and incapacity.72 This is to ascertain whether the accused is capable of making his defence or not. Failure on the part of the court to do so vitiates the whole trial.73 If the court comes to a conclusion that the accused is of unsound mind, then the trial will be postponed, until such time the accused is treated and is in a position to understand the court proceedings and to defend himself.74 If the accused is acquitted on the ground that he, by reason of unsoundness of mind, was incapable of knowing the nature of the act, the magistrate or court is required to order that he be either detained in safe custody in a lunatic asylum or be delivered to a relative or a friend, who gives security to the court that he will take care of him and prevent him from causing injury to himself or to any other person.75 PROPOSALS FOR REFORM During the last about 150 years, the law relating to insanity as incorporated in s 84 as an extenuating factor has remained static. Legislature as well as courts76 in India, in spite of a number of indicia provided by modern medical science and psychiatry for ascertaining the state of mind of the accused pleading insanity and of some progressive statutory and judicial inroads made in the overseas jurisdictions, including in the country of its origin, have not been able to bring any reforms in the law of insanity. As a result, the existence of mental derangement not falling within the ambit of s 84 has merely been pleaded as an extenuating circumstance. The Law Commission of India even admitting the fact that the expression ‘unsoundness of mind’, compared to the expressions ‘disease of the mind’ and ‘mental deficiency’ used in the M’Naghten Rules, is ‘somewhat vague and imprecise’, failed to see any worth in proposing changes in s 84 of the IPC.77 Apprehending the complicated medico-legal issues associated with the defence of ‘diminished responsibility’ and recalling the judicial discretion in sentencing under the IPC, allowing courts to take into account any extenuating circumstances including mental abnormality, it also declined the idea of incorporating the doctrine of ‘diminished responsibility’ in the Penal Code.78 1 Sir William Blackstone, Commentaries on the Laws of England, vol 4, 17th edn,1830, p 304. 2 (1843) 8 Eng Rep 718. 3 M’Naghten was, however, detained in a mental hospital. 4 For text of these questions and answers see, RC Nigam, Law of Crimes in India, Asia, London, 1965, pp 360-362. 5 A comparative reading of the M’Naghten Rules; s 84 of the IPC and its corresponding draft provisions (ss 66 and 67 of the Draft Indian Penal Code prepared by Lord Macaulay in 1837, which respectively read: ‘Nothing is an offence which is done by a person in a state of idiocy,’ and ‘Nothing is an offence which a person does in consequence of being mad or delirious at the time of doing it.’) reveals that the M’Naghten Rules influenced the law governing insanity in India. It is also evident that s 84 is based on the above-mentioned propositions (1) and (2), which have been derived from answers to question numbers (2) and (3) in the M’Naghten case. Further, courts in India have invariably followed the M’Naghten Rules in the interpretation of s 84. For example, see Hazara Singh v State AIR 1958 Punj 104; Ramdulare v State of Madhya Pradesh AIR 1959 MP 259 [LNIND 1958 MP 118]; Ashiruddin Ahmad v R AIR 1949 Cal 182. 6 (1972) 2 Mad LJ 497, (1973) 1 Mad LJ 179. CHAPTER 10 Insanity or Mental Abnormality Page 7 of 9 7 Someswar Bora v State of Assam (1981) Cr LJ (NOC) 51(Gau). 8 Bharat Kumar v State of Rajasthan (2004) Cr LJ 1958(Raj). 9 Vidhya Devi v State of Rajasthan (2004) Cr LJ 2332(Raj) ; Hari Singh Gond v State of Madhya Pradesh AIR 2009 SC 31 [LNIND 2008 SC 1728], (2008) 16 SCC 109 [LNIND 2008 SC 1728]. 10 Surendra Mishra v State of Jharkhand AIR 2011 SC 627 [LNIND 2011 SC 27], (2011) 11 SCC 495 [LNIND 2011 SC 27]. 11 Francis v State of Kerala (1975) 3 SCC 825 [LNIND 1974 SC 188], 1974 Cri LJ 1310. 12 Dahyabhai Chhaganbhai Thakkar v State of Gujarat AIR 1964 SC 1563 [LNIND 1964 SC 88], (1964) Cr LJ 472(SC) ; Amrit Bhushan Gupta v Union of India AIR 1977 SC 608 [LNIND 1976 SC 458], (1977) Cr LJ 376(SC), (1977) 1 SCC 180 [LNIND 1976 SC 458]; Tubu Chetia v State of Assam (1976) Cr LJ 1416(Gau) ; Keshaorao v State of Maharashtra (1979) Cr LJ 403(Bom) ; Shankaran v State (1994) Cr LJ 1173(Ker) ; Shaikh Ahmed v State of Andhra Pradesh (1996) Cr LJ 2582(AP) ; Gopal Bhowmik v State of Assam (2001) Cr LJ 2656(Gau) ; Gulab Manik Surwase v State of Maharashtra (2001) Cr LJ 4302(Bom) ; Bharat Kumar v State of Rajasthan (2004) Cr LJ 1958(Raj) ; Vidhya Devi v State of Rajasthan (2004) Cr LJ 2332(Raj) ; Rajendra v State of Raja- sthan (2004) Cr LJ 2458(Raj). 13 S Sunil Sandeep v State of Karnataka (1993) Cr LJ 2554(Kant) ; Bharat Kumar v State of Rajasthan (2004) Cr LJ 1958(Raj) ; Pulu Mura v State of Assam (2004) Cr LJ 458(Gau) ; Hari Singh Gond v State of Madhya Pradesh AIR 2009 SC 31 [LNIND 2008 SC 1728], (2008) 16 SCC 109 [LNIND 2008 SC 1728]; Sudhakaran v State of Kerala AIR 2011 SC 265 [LNIND 2010 SC 1046], (2010) 10 SCC 522; State of Rajasthan v Shera Ram @ Vishnu Dutta AIR 2012 SC 1 [LNIND 2011 SC 1192], (2012) 1 SCC 602 [LNIND 2011 SC 1192]. 14 Amrit Bhushan v Union of India AIR 1977 SC 608 [LNIND 1976 SC 458], (1977) 1 SCC 180 [LNIND 1976 SC 458], (1977) Cr LJ 376(SC) ; Surya Prasad v State of Orissa (1982) Cr LJ 931(Ori). 15 Rambharose v State of Madhya Pradesh (1974) MPLJ 406; Shivraj Singh v State of Madhya Pradesh (1975) Cr LJ 1458(MP), 1975 MPLJ 98 [LNIND 1974 MP 106]; but see Geron Ali v Emperor AIR 1941 Cal 129. 16 State of Orissa v Bagh Syama (1977) Cr LJ (NOC) 21(Ori) ; Ram Lal v State of Rajasthan (1977) Cr LJ (NOC) 168(Raj) ; Tukappa Tamanna Lingardi v State of Maharashtra (1991) Cr LJ 2375(Bom). 17 Ramchandran v State of Kerala (1986) Cr LJ 1222(Ker). 18 Re Manickam AIR 1950 Mad 576 [LNIND 1950 MAD 59], (1963) Mah LJ (Notes) 24(DB). 19 Re Pappathi Ammal AIR 1959 Mad 239 [LNIND 1958 MAD 125], (1959) Cr LJ 724(Mad). 20 Re Raja Gopala AIR 1952 Mad 289 [LNIND 1951 MAD 243]. 21 Bharat Kumar v State of Rajasthan (2004) Cr LJ 1958(Raj) ; Pulu Mura v State of Assam Pulu Mura v State of Assam (2004) Cr LJ 458(Gau). 22 Parapuzha Thamban v State of Kerala (1989) Cr LJ 1372(Ker). However, it may be a relevant factor for inflicting a lesser punishment; see Ram Adhin v Emperor AIR 1932 Oudh 18; State of Assam v Inush Ali (1982) Cr LJ 1044(Gau). 23 Sidheswari Bora v State of Assam (1981) Cr LJ 1005(Gau). However, a view is expressed that compulsive state of mind be taken into account while quantifying punishment. 24 Gourishankar v State (1965) 68 Bom LR 236. 25 Gour Chandra v State of Orissa (1989) Cr LJ 1667(Ori). 26 TN Lakshmaiah v State of Karnataka (2002) 1 SCC 219 [LNIND 2001 SC 2360]. 27 Budha v State of Maharashtra (1985) Cr LJ 844(Bom). 28 Parapuzha Thamban v State of Kerala (1989) Cr LJ 1372(Ker). 29 Srikant Anandrao Bhosale v State of Maharashtra (2003) 7 SCC 748. 30 See R v Byrne [1960] 2 QB 396. 31 Basdev v State of Pepsu AIR 1956 SC 488 [LNIND 1956 SC 34], (1956) Cr LJ 919(SC). 32 Ajmer Singh v State AIR 1955 Punj 13(DB), (1955) Cr LJ 305(H&P). 33 Jojo @ Jojomon v State of Kerala (2011) ILR 2 Kerala 789, 2011 (3) KLJ 25. 34 Sheralli Wali Mohammed v State of Maharashtra AIR 1972 SC 2443 (1972) Cr LJ 1523(SC) ; Netrananda Behara v State of Orissa AIR 1968 Ori 233; Nakula Chandra Aich v State of Orissa (1982) Cr LJ 2158(Ori) ; Mitu Khalida v State of Orissa (1983) Cr LJ 1385(Ori) ; Kujhiyaramadiyil Madhavan v State (1994) Cr LJ 450(Ker) ; Bapu @ Gajraj v State of Rajasthan (2007) 8 SCC 66 [LNIND 2007 SC 774], 2007 (8) SCALE 455 [LNIND 2007 SC 774]. 35 Dahyabhai Chhaganbhai Thakkar v State of Gujarat AIR 1964 SC 1563 [LNIND 1964 SC 88], (1964) Cr LJ 472(SC) ; Raghu Pradhan v State of Orissa (1993) Cr LJ 1159(Ori) ; Ajaya Mahakud v State of Orissa (1993) Cr LJ 1201(Ori). CHAPTER 10 Insanity or Mental Abnormality Page 8 of 9 36 Oyami Ayatu v State of Madhya Pradesh AIR 1974 SC 216 [LNIND 1973 SC 242], (1974) Cr LJ 305(SC). 37 Lata Seikh v State of West Bengal (1983) Cr LJ 1675(Cal). 38 Dahyabhai Chhaganbhai Thakkar v State of Gujarat AIR 1964 SC 1563 [LNIND 1964 SC 88], (1964) Cr LJ 472(SC) ; Bhikari v State of Uttar Pradesh AIR 1966 SC 1 [LNIND 1965 SC 57], (1966) Cr LJ 63(SC). 39 Kuttappan v State of Kerala (1986) Cr LJ 271(Ker). 40 Chhagan v State (1976) Cr LJ 671(Raj) ; see also Emperor v Gedka Goala AIR 1937 Pat 363. 41 Kalicharan v Emperor AIR 1948 Nag 20, (1948) Cr LJ 377(DB). 42 Dahyabhai Chhaganbhai Thakkar v State of Gujarat AIR 1964 SC 1563 [LNIND 1964 SC 88], (1964) Cr LJ 472(SC) ; Vidhya Devi v State of Rajasthan (2004) Cr LJ 2332(Raj). 43 Ratan Lal v State of Madhya Pradesh AIR 1971 SC 778 [LNIND 1970 SC 487], (1971) Cr LJ 654(SC). 44 Kuttappan v State of Kerala (1986) Cr LJ 271(Ker) ; Vidhya Devi v State of Rajasthan (2004) Cr LJ 2332(Raj) ; Pulu Mura v State of Assam (2004) Cr LJ 458(Gau). 45 AIR 1961 SC 998 [LNIND 1961 SC 29], (1961) 2 Cr LJ 43(SC). 46 Dahyabhai Chhaganbhai Thakkar v State of Gujarat AIR 1964 SC 1563 [LNIND 1964 SC 88], (1964) Cr LJ 472(SC) ; Bhikari v State of Uttar Pradesh AIR 1966 SC 1 [LNIND 1965 SC 57], (1966) Cr LJ 63(SC). 47 Ratan Lal v State of Madhya Pradesh AIR 1971 SC 778 [LNIND 1970 SC 487], (1971) Cr LJ 654(SC). 48 Sheralli Wali Mohammed v State of Maharashtra AIR 1972 SC 2443 (1972) Cr LJ 1523(SC) ; Netrananda Behara v State of Orissa AIR 1968 Ori 233; Nakula Chandra Aich v State of Orissa (1982) Cr LJ 2158(Ori) ; Mitu Khalida v State of Orissa (1983) Cr LJ 1385(Ori) ; Ramlal v State of Rajasthan (1977) Cr LJ (NOC) 168(Raj) ; Kujhiyaramadiyil Madhavan v State (1994) Cr LJ 450(Ker). 49 Oyami Ayatu v State of Madhya Pradesh AIR 1974 SC 216 [LNIND 1973 SC 242], (1974) Cr LJ 305(SC). 50 SK Nair v State of Punjab AIR 1997 SC 1537 [LNIND 1996 SC 1829], (1997) Cr LJ 772(SC). 51 Srikant Anandrao Bhosale v State of Maharashtra (2003) 7 SCC 748. See also Prakash v State of Maha- rashtra (1985) Cr LJ 196(Bom) (in which the Bombay High Court also ruled that prior or subsequent treatment for schizophrenia coupled with the medical evidence supporting such a schizophrenia warrant the s 84 exemption) and Kuttappan v State of Kerala (1986) Cr LJ 271(Ker), in which the Kerala High Court set aside the conviction imposed under s 302, IPC, by treating a paranoid schizophrenia as a disease of mind. 52 See also State v Mohinder Singh (1983) 2 SCC 274; Vidhya Devi v State of Rajasthan (2004) Cr LJ 2332(Raj). 53 Bapu @ Gajraj v State of Rajasthan (2007) 8 SCC 66 [LNIND 2007 SC 774], 2007 (8) SCALE 455 [LNIND 2007 SC 774]. 54 Dulal Naik v State (1987) Cr LJ 1561(Cal) ; Vidhya Devi v State of Rajasthan (2004) Cr LJ 2332(Raj). 55 Sheralli Wali Mohammed v State of Maharashtra AIR 1972 SC 2443 (1972) Cr LJ 1523(SC). 56 Dahyabhai Chhaganbhai Thakkar v State of Gujarat AIR 1964 SC 1563 [LNIND 1964 SC 88], (1964) Cr LJ 472(SC). See also Ratan Lal v State of Madhya Pradesh AIR 1971 SC 778 [LNIND 1970 SC 487], (1971) Cr LJ 654(SC) ; Sudhakaran v State of Kerala AIR 2011 SC 265 [LNIND 2010 SC 1046], (2011) Cr LJ 292(SC). 57 Jai Lal v Delhi Administration AIR 1969 SC 15 [LNIND 1968 SC 135]. 58 Dahyabhai Chhaganbhai Thakkar v State of Gujarat AIR 1964 SC 1563 [LNIND 1964 SC 88], (1964) Cr LJ 472(SC). 59 State of Madhya Pradesh v Ahmadulla AIR 1961 SC 998 [LNIND 1961 SC 29], (1961) 2 Cr LJ 43(SC). See also S Sunil Sandeep v State of Karnataka (1993) Cr LJ 2554(Kant) ; Pundalik Laxman Chavan v State of Maharashtra (1994) 3 Crimes 298(Bom). 60 TN Lakshmaiah v State of Karnataka (2002) 1 SCC 219 [LNIND 2001 SC 2360]. 61 Dahyabhai Chhaganbhai Thakkar v State of Gujarat AIR 1964 SC 1563 [LNIND 1964 SC 88], (1964) Cr LJ 472(SC) ; Vidhya Devi v State of Rajasthan (2004) Cr LJ 2332(Raj). 62 Sannatamma v State of Karnataka (2004) Cr LJ 2257. 63 No plea of insanity can be raised for the first time before the Supreme Court if no foundation therefor is established before. See, Sastry v Advocate General of Andhra Pradesh (2007) 15 SCC 271; Jagdish v State of Madhya Pradesh (2009) 12 SCALE 580 [LNIND 2009 SC 1855], (2009) 14 SCR 727 [LNIND 2009 SC 1855]. The accused who was not insane at the time of commission of an offence cannot take the plea of insanity if he turns insane after conviction. No High Court (invoking art 226 of the Constitution) or the Supreme Court (exercising its jurisdiction under art 136 of the Constitution) is allowed to interfere with his death sentence. See,Armit Bhushan Gupta v Union of India AIR 1977 SC 608 [LNIND 1976 SC 458], (1977) Cr LJ 376(SC), (1977) 1 SCC 180 [LNIND 1976 SC 458]. 64 Jai Lal v Delhi Administration AIR 1969 SC 15 [LNIND 1968 SC 135]. CHAPTER 11 Intoxication Page 2 of 7 was administered to him ‘without his knowledge’ or ‘against his will’. A person seeking protection of s 85 is required to establish that he was: (i) incapable of knowing the nature of the act committed, or (ii) that he was doing what was either wrong or contrary to law, and (iii) that the thing which intoxicated him was administered to him without his knowledge or against his will.4 Incapable of Knowing the Nature of the Act For the defence of intoxication to be available under s 85, it must not only be established that the intoxicant was administered without his knowledge or against his will, but also by reason of such intoxication, the person concerned was incapable of understanding the nature of the act or that he is doing what is either wrong or contrary to law. Influence of the intoxicant administered, short of making a person incapable of understanding the nature of the act committed by him, does not entitle him the protection of s 85. Similarly, a mere fact that an intoxicant was administered to him by another person without his knowledge or against his will does not qualify him for the exemption.5 Simply because his mind was so affected by the intoxicant that he readily gave way to some violent passion also does not bring him under the protective umbrella of the general exemption.6What is required to establish is that he, by reason of the intoxicant administered to him without his knowledge or against his will by someone else, lost his ability to understand the nature of the act committed by him.7 ‘Without His Knowledge’ or ‘Against His Will’ The terms ‘without his knowledge’ or ‘against his will’ denote that it should be involuntary intoxication. The expression ‘without his knowledge’ means that the person concerned is ignorant of the fact that what is consumed by him is an intoxicant or is mixed with an intoxicant.8 In other words, he must be totally unaware that whatever was administered or given to him will have any intoxicating effect. The words ‘against his will’ mean that the person was forced or coerced into consuming an intoxicant. Normal persuasion acting as an incentive is not covered by the expression ‘against his will’, unless there is an element of compulsion to consume the intoxicant against his will.9 In Bablu @ Mabarik Hussain v State of Rajasthan ,10 wherein the appellant, under the influence of liquor, killed his wife and five children, the Supreme Court ruled that the mere proof of intoxication is not enough to invoke s 85. The accused needs to take the plea and prove that the intoxicant was administered to him without his knowledge or against his will. VOLUNTARY INTOXICATION A careful reading of ss 85 and 86 reveals that an act done under the influence of self-induced intoxication amounts to an offence even if the doer, by reason of intoxication, is incapable of knowing the nature of the act or that what he is doing is either wrong or contrary to law. He, therefore, is not entitled for immunity from the corresponding criminal liability because he, due to the self-administered intoxicant, loses his mental ability to know the nature of the act or that what he is doing was wrong or contrary to law.11 If voluntary drunkenness was allowed to be a protective shield against criminal liability, it would obviously lead to a sort of license to commit crimes with impunity. Voluntary drunkenness, therefore, is no defence for any offence.12 However, s 86 deals with immunity of a self-intoxicated person when he commits an offence requiring ‘particular knowledge or intention’, as a definitional ingredient, on the part of an accused. It provides that if an offence requiring such a knowledge or intention is committed by a self-induced intoxicated person, only knowledge (and not the intention) of the offence on his part will be presumed. If such an offence is committed by an involuntarily intoxicated person, neither knowledge nor intention in committing it is to be presumed on the part of the doer. S 85 covers all the offences, while s 86 covers the offences requiring particular intent or knowledge. Section 86, in this sense, is an exception to s 85. Nevertheless, the degree of intoxication demanded by both the sections is same. A voluntarily intoxicated person seeking protection of s 86 is, like an involuntary intoxicated person seeking protection of s 85, required to show that the degree of his intoxication made him incapable of knowing the nature of the act or that what he is doing is either wrong or contrary to law. Intoxication short of this degree does not attract the s 86 exemption.13 The state of intoxication, envisaged under s 86, must render the accused incapable of forming the specific intent essential to constitute the crime.14 Voluntary Intoxication: Presumption of Knowledge A person who gets into a state of intoxication voluntarily is presumed to have the same knowledge as he would have had if he had not been intoxicated.15 For instance, in a case of culpable homicide not amounting to murder, if the accused was in a state of intoxication at the time of the alleged offence and the intoxication was voluntary, he will be presumed under s 86, IPC, to CHAPTER 11 Intoxication Page 3 of 7 have known at the time of the act that it is likely to cause death and he will be liable to punishment under Part II of s 304. So, when a man, who had voluntarily consumed liquor, killed another, while he fired in the air to scare another away, was found guilty and was convicted for having committed culpable homicide.16 Similarly, a man, when, in a highly intoxicated state of mind, stabbed the abdomen of his friend, which wound proved fatal, was convicted under s 304 Part II by imputing him the requisite knowledge.17If an accused does an act while in a state of voluntary intoxication, he will be presumed to have known that it was so imminently dangerous that it must in all probability cause death and will be held guilty of murder.18 This presumption of knowledge in cases of voluntary intoxication is, like all other presumptions, rebuttable. Thus, in cases of voluntary intoxication, where the offence requires particular knowledge or intent, then the court will presume that such knowledge as he would have, had if he had not been intoxicated is present. The onus or the burden shifts on the accused to prove that he, by reason of intoxication, had become incapable of having the particular knowledge which he is presumed to have.19 Voluntary Intoxication and Intention Section 86 makes the distinction between intention and knowledge. It may be noted that the first part of the section speaks of ‘intent or knowledge’ and the latter part deals only with the ‘knowledge’. So far as knowledge is concerned, law attributes to the intoxicated man the same knowledge as he would have if he had not been intoxicated. It is obvious that if really the drafters of the Penal Code wanted that ‘intention’ also to be presumed even in the case of an act done in a drunken state of mind, the word (intention) could have been mentioned in the second part of s 86 also, but it is omitted.20 Thus, the presumption of knowledge alone is provided for and not presumption of intention.21So far as intent or intention is concerned, it must be gathered from the attending general circumstances of the case, paying due regard to the degree of intoxication. If a man was out of his mind altogether at the time of commission of crime, it would not be possible to fix him with the requisite intention. But, if he had not gone so deep in drinking and from the facts, it could be found that he had full knowledge of the events, one can apply the rule that a man is presumed to intend the natural consequences of his act. The fact that he was so affected by alcohol that he readily gave in to some violent passion, does not rebut this presumption. Intention is something which is prompted by motive and knowledge is an awareness of the consequences of the act. In many cases, intention and knowledge merge into each other and mean more or less the same thing. If a person, in spite of his drunkenness, knew the consequences of his act, it can safely be presumed that he intended the resultant consequences.22 Intention can be presumed from knowledge, unless there are some other factors that repel such an inference.23 The demarcating line between knowledge and intention is no doubt thin, but it is not difficult to perceive that they connote different things.24 In Basdev v State of Pepsu ,25 a retired military officer was charged with the murder of a young boy aged about 15 years. Both of them and others of the same village attended a marriage party. All of them went to the house of the bride to take the mid-day meal. Some had settled down in their seats and some had not. The retired officer, who was very drunk and intoxicated, asked the young boy to step aside a little so that he could occupy a convenient seat. But, when he did not move, the officer whipped out a pistol and shot the boy in the abdomen. The injury proved fatal. The evidence showed that the accused sometimes staggered and was incoherent in his talk. But it also showed that he was capable of walking independently and talking coherently as well. The evidence proved that he came on his own to the house of the bride and that he made the choice of his own seat and after injuring the deceased, he attempted to get away from the scene and was secured at a short distance from the scene of the crime. When he was secured, he realised what he had done and asked for forgiveness. All these facts, according to the Supreme Court, went to prove that there was no proved incapacity in the accused to form the intention to cause bodily injury sufficient in the ordinary course of nature to cause death. In view of his failure to prove such incapacity, the court presumed that he intended the natural and probable consequences of his act. In other words, he intended to inflict bodily injuries on the deceased and the bodily injuries so intended to be inflicted, was sufficient in the ordinary course of nature to cause death. The accused was found guilty of murder. The Supreme Court, after referring to relevant British judicial dicta, observed: So far as knowledge is concerned the court must attribute to the intoxicated man the same knowledge as if he was quite sober. But so far as intent or intention is concerned, the court must gather it from the attending general circumstances of the case paying due regard to the degree of intoxication. Was the man beside his mind altogether for the time being? If so, it would not be possible to fix him with the requisite intention. But if he had not gone so deep in drinking, and from the facts it could be found that he knew what he was about, the court can apply the rule that a man is presumed to intend the natural consequences of his act or act s.26 The apex court, thus, laid down a principle that, where an offence is committed by a person under deep influence of intoxication, it can be presumed that he has knowledge of the act which he is committing, but it cannot be presumed that he has got intention and the same has to be inferred from the facts and circumstances of the case. In Mavari Surya Sathya Narayan v State of Andhra Pradesh ,27 the accused and the deceased were married for 11 years. He CHAPTER 11 Intoxication Page 4 of 7 was an alcoholic and quarreled often with her. One day, after taking his meals, he went outside and returned home with a brandy bottle and after consuming it, he started scolding the deceased by stating that he sustained loss as he married the daughter of his maternal uncle. He asked her to sign on blank papers saying that he would write whatever he liked on the papers. When she refused, he became wild and began beating her. When she tried to go out of the house, he caught hold of her hair and dragged her into the room. He closed the door and attempted to set her on fire. She put out the flames and tried to run away. The accused again pulled her, poured kerosene and set her on fire, and she ultimately died of the burns. The Andhra Pradesh High Court, relying on the Basdev dictum, held that having regard to the facts, it cannot be said that the accused was in total loss of mental power and hence the provisions of s 86 would not apply. In Shankar Jaiswara v State of West Bengal ,28 the Supreme Court refused to invoke s 86 in favor of the accused, who, in a state of drunkenness, abused the deceased in a filthy language, and when told to leave him alone, stabbed him seven times to his death with a sharp weapon, as he was not out of his senses on account of intoxication. He was conscious and capable of understanding the consequences of his conduct. His conduct was ‘not devoid of intention’. It accordingly upheld his conviction under s 302 of the Penal Code. It also ruled that the onus of proof that he, because of drunkenness, was incapable of forming the requisite particular intention lies on the accused. Mere proof of intoxication is not enough.29 INTOXICATION AND INSANITY In Basdev v State of Pepsu ,30 the apex court ruled that insanity, whether produced by drunkenness or otherwise is a defence to the crime charged. In other words, voluntary intoxication operates as an extenuating factor if it leads to ‘unsoundness of mind’.31 The IPC makes no difference between insanity caused by habitual excessive drinking and insanity resulting from other causes. It does not deprive him of the immunity from liability only on the ground that the insanity resulted from his self- induced excessive drunkenness. Voluntary drunkenness falling short of insanity, however, becomes one of the relevant factors in ascertaining as to whether the accused had mental ability to form the requisite specific intent, if the crime in question warrants it. The Supreme Court, dilating on voluntary intoxication vis--vis criminal liability under s 86, observed: There is distinction, however, between the defence of insanity in the true sense caused by excessive drunkenness and the defence of drunkenness which produces a condition such that the drunken man’s mind becomes incapable of forming a specific intention. If act ual insanity in fact supervenes as the result of alcoholic excess it furnishes as complete an answer to a criminal charge as insanity induced by any other cause. But in cases falling short of insanity 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, but evidence of drunkenness which falls short of proving such incapacity and merely establishes that the mind of the accused was so affected by drink that he more readily gave way to some violent passion does not rebut the presumption that a man intends the natural consequences of his act.32 Further, intoxication may resemble insanity, but the two are not the same. Both in cases of insanity and involuntary intoxication, the defence put up is incapacity of understanding or knowing the nature of the act.33 In a Madras case,34 the accused was highly drunk and that induced in him a spirit of bravado and made him violent. He drew a line on the ground and warned that he would kill anybody who crossed it. The deceased who tried crossing the line was attacked by the accused and was killed. The plea of insanity due to intoxication put up by the accused was not accepted by the court, which felt that the warnings given by him, though foolish, clearly show that he was very well aware of what he was doing. If the incapacity to understand the nature of the act or to have the particular knowledge or to form the particular intent necessary to constitute the offence is the result of an inherent defect or infirmity of the mind, then the case will come only under s 84 and s 86 will have no application. Although, both intoxication and insanity lead to incapacity to understand the nature of the offence, they cannot be treated in the same manner. The poisoning of the brain with alcohol or other drugs is a knowingly self-induced condition. Volition enters into it in a way that it does not into insanity. The threat of punishment may cause a person to moderate his intake of intoxicants and it may cause even the intoxicated person to control himself. Drunkenness is not itself insanity, but drinking may result itself what is thought of insanity, it may be symptomatic of insanity or bring out latent insanity. In respect of sentence, a person who commits a serious crime and sets up a plea of intoxication is sent to prison, whereas a person who sets up the defence of insanity may not be sent to prison but sent to a psychiatric hospital or lunatic asylum for as long as he is thought to be dangerous.35 CHAPTER 11 Intoxication Page 7 of 7 38 Dasa Kandha v State of Orissa (1976) Cr LJ 2010(Ori). 39 Enrique F Rio v State (1975) Cr LJ 1337(Goa). 40 Law Commission of India, ‘Forty-Second Report: The Indian Penal Code’, Government of India, 1971, p 97. End of Document CHAPTER 12 Consent and Compulsion PSA Pillai: Criminal Law,12th Edition PSA Pillai: Criminal Law,12th Edition > PSA Pillai: Criminal Law,12th Edition CHAPTER 12 Consent and Compulsion (Indian Penal Code 1860, Sections 87 to 94) INTRODUCTION Volunti non fit injuria, an old Roman law maxim, signifying that harm caused with consent cannot be considered an injury, plays some role in criminal law. Consent of a victim, subject to some limitations that are imposed in social interest, operates as an extenuating factor. However, modern criminal law, generally, does not absolve a person from criminal liability for acts posing threat or causing risk to human life. Nevertheless, a doer is protected from criminal liability if he, in good faith, causes or takes risk of causing injury, with or without consent, for the ‘benefit’ of the sufferer. Sections 87 to 93 of the Code deal with consent as a general exception. Sections 87 and 91 lay down the law of consent as a defence, while ss 88, 89, 92 and 93 lay down the law relating to immunity for the harm caused, in good faith, with or without consent, for the benefit of the sufferer. And s 90 explains what is not consent for the purposes of the Code. Section 94 exempts a person from criminal liability for acts committed, with specified exceptions, under compulsion or duress. WHAT IS CONSENT? Generally speaking, consent means something that is done deliberately and by free will. It is a concurrence of wills.1 It involves a deliberate exercise of intelligence based on the knowledge of the significance and moral effect of the act.2It is an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side. It supposes three things—a physical power, a mental power and a free and serious use of them.3 Consent obtained by intimidation, force, mediated imposition, circumvention, surprise or undue influence, therefore, is mere a delusion and not a deliberate and free act of the mind.4A mere act of submission,5 or knowledge of the risk involved, therefore, does not amount to consent.6 The word ‘consent’ has not been defined in the IPC. However, s 90 of the IPC describes as to what does not amount to consent as intended by any section in the Code. It describes consent in a negative manner. It states: 90. Consent known to be given under fear or misconception.— A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.— if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.— unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age. A plain reading of s 90 reveals that consent given by a person ‘under fear of injury’ or ‘under a misconception of fact’ is not ‘consent’ at all. Similarly, consent given by a person of unsound mind or a person who intoxicated, who is incapable of understanding the nature and consequences of the consented act, and a person below 12 years of age, unless contrary appears CHAPTER 12 Consent and Compulsion Page 2 of 13 from the context, is not a valid consent. Section 90, ultimately, provides that consent to be a ground for avoiding criminal responsibility is required to be a real consent and not vitiated by fear, fraud or immaturity.7 Consent obtained by threats or violence, obviously, is not a real consent as it is given ‘under fear of injury’. It is not necessary that the consenter was put ‘under fear of injury’ for obtaining his consent. Consent obtained by putting any other person in whom he is interested in ‘under fear of injury’ is also not a true consent. The word ‘injury’, by virtue of s 44 of the IPC, encompasses any harm illegally caused to a person in body, mind, reputation or property. The phrase ‘misconception of fact’ used in s 90 refers to ‘misconception’ regarding the true nature of the act, that is, in reference to the effect and consequence of the act. Thus, in a case, wherein death was caused by a venomous snake under a misconception induced by the representation of a snake charmer that the bite would do no harm, it was held that the consent was not a true consent since it was given under a misconception of a fact based on the assurances given by the snake charmer.8 A misconception of fact may arise out of fraud9 or misrepresentation of facts.10 Consent given on misrepresentation of facts, therefore, does not afford a defence to the person act ed upon such consent. However, misrepresentation of facts, to bring it within the ambit of s 90 needs to associate with deception or deceit. Consent obtained on a promise to be fulfilled at a future uncertain date, therefore, does not ipso facto, vitiate the consent. Consent for sexual intercourse obtained on a promise to marry in future and its failure by the accused, it was held, cannot be said that it was induced by misconception of fact unless from the very inception the accused never really wanted to marry the girl, who on the promise of marriage, consented to, and indulged in, sexual intercourse until she became pregnant.11 Consent given ‘under fear of injury’ or ‘under a misconception of fact’, in ultimate analysis, amounts to the consent given by the victim under ‘coercion’ or ‘mistake of fact’ respectively.12 However, this is not adequate to vitiate the consent unless the person who obtained the consent knew or had reason to believe that the consent was given by the victim in consequence of such ‘fear of injury’ or ‘misconception of fact’. In other words, two conditions need to be satisfied for application of the first part of s 90, namely, first, the consent was given under ‘fear of injury’ or ‘a misconception of fact, and secondly, the accused was conscious of the fact or had reason to think that the consent was given under fear or misconception. The first factor, namely ‘consent given under fear of injury or misconception of fact, is set out from the point of view of the victim, while the latter, i.e. knowledge on the part of the accused that the consent emanated from any of the first factor, is set out from the point view of the accused. Both the factors need to be cumulatively satisfied.13 Consent given by an insane or an intoxicated person and by an infant (below under 12 years of age) is not a valid consent under the IPC. It, therefore, does not absolve the doer of the consented act.14The rule, obviously, is based on the premise that a lunatic, an intoxicated person and a child are immature to understand the consequences of the consented act. However, s 90 cannot be construed as an exhaustive definition of consent for the purpose of the IPC. The normal connotation and concept of ‘consent’ is not intended to be excluded. The Supreme Court and High Courts have not merely gone by the phraseology of s 90, but travelled a wider field, guided by the etymology of the word ‘consent’.15 WHY IS ‘CONSENT ‘A GENERAL EXCEPTION?: UNDERLYING PRINCIPLE The drafters of the Code, explaining the object and underlying principle of consent as an extenuating factor and its limitations, observed: We conceive the general rule to be that nothing ought to be an offence by reason of any harm which it may cause to a person of ripe age, who, undeceived, has given a free and intelligent consent to suffer that harm or to take the risk of that harm. The restrictions by which the rule is limited affect only cases where human life is concerned. ... The reason on which the general rule which we have mentioned rests, is this, that it is impossible to restrain men of mature age and sound understanding from destroying their own property, their own health, their own comfort, without restraining them from an infinite number of salutary and innocent actions. It is by no means true that men always judge rightly of their own interests. But it is true that, in the vast majority of cases, they judge better of their own interests than any lawgiver, or any tribunal, which must necessarily proceed on general principles and which cannot have within its contemplation the circumstances of particular cases and tempers of particular individuals, can judge for them. ... It is difficult to conceive any law which should prevent a man from capriciously destroying his property... It is difficult to conceive of any law which should prevent a man from capriciously injuring his own health... It is chiefly, we conceive, for this reason that almost all governments have thought it sufficient to restrain men from harming others and have left them at liberty to harm themselves. But, though in general we would not punish an act on account of any harm which it might cause to a person who had consented to suffer that harm, we think CHAPTER 12 Consent and Compulsion Page 5 of 13 The exemption from criminal liability under s 87 by reason of giving consent to the harm caused, is applicable only to offences of a personal nature. Consent has no relevance in respect of offences that are grave and are public in character. Where offences are of a public character, consent does not make it any less an offence nor does it grant immunity from punishment to the person doing the act. Such offences of public character are: offences against State (ss 121-130); offences relating to the army, navy and air force (ss 131-140); offences affecting public tranquility (ss 141-160); offences by or relating to public servants (ss 166-171); offences against public justice (ss 191-229), and offences relating to government stamps, coins, weights and measures (ss 230-267). Consent to these offences accords no immunity from liability. In fact, the consenting party becomes an accomplice or an abettor. Another area in which consent to take the risk will not exonerate the person concerned from civil and criminal liability, is in the case of industrial accidents. For instance, the fact that the workers have agreed to work in hazardous industry does not take away the liability of the employer under the Workmen’s Compensation Act 1923. Similarly, where such risk involves perils to life or suffering of grievous nature to workers, their consent may not be a good excuse for the employer to avoid its criminal responsibility. Evidence of Consent The question as to whether consent has been given or not, is always a question of fact which has to be determined by leading evidence before the trial court. Thus, questions as to whether consent was obtained without knowledge or by misconception or by fraud or whether there was an implied consent existing, are questions of fact which have to be proved by the accused person who wants to take benefit of the exceptions stipulated under ss 87, 88 and 89 of the IPC. The factum of consent may be proved by circumstantial evidence as well. BENEVOLENT ACTS WITH OR WITHOUT CONSENT Sections 88, 89 and 92 deal with situations where the act causing the harm to a person is done for the benefit of the person in good faith. Section 88. Act not intended to cause death, done by consent in good faith for person’s benefit.— Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm. Illustration A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint, but not intending to cause Z’s death, and intending, in good faith, Z’s benefit, performs that operation on Z, with Z’s consent. A has committed no offence. Section 89. Act done in good faith for benefit of child or insane person, by or by consent of guardian.— Nothing which is done in good faith for the benefit of a person under twelve years of age, or of unsound mind, by or by consent, either express or implied, of the guardian or other person having lawful charge of that person, is an offence by reason of any harm which it may cause, or be intended by the doer to cause or be known by the doer to be likely to cause to that person: Provisos— Provided— First.— That this exception shall not extend to the intentional causing of death, or to the attempting to cause death; Secondly.— That this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity; Thirdly.— That this exception shall not extend to the voluntary causing of grievous hurt, or to the attempting to cause grievous hurt, unless it be for the purpose of preventing death or grievous hurt, or the curing of any grievous disease or infirmity; CHAPTER 12 Consent and Compulsion Page 6 of 13 Fourthly.— That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend. Illustration A, in good faith, for his child’s benefit without his child’s consent, has his child cut for the stone by a surgeon, knowing it to be likely that the operation will cause the child’s death, but not intending to cause the child’s death. A is within the exception, inasmuch as his object was the cure of the child. Section 92. Act done in good faith for benefit of a person without consent.— Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person’s consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit: Provisos— Provided— First.— That this exception shall not extend to the intentional causing of death, or the attempting to cause death; Secondly.— That this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity; Thirdly.— That this exception shall not extend to the voluntary causing of hurt, or to the attempting to cause hurt, for any purpose other than the preventing of death or hurt; Fourthly.— That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend. Illustrations (a) Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires to be trepanned. A, not intending Z’s death, but in good faith, for Z’s benefit performs the trepan before Z recovers his power of judging for himself. A has committed no offence (b) Z is carried off by a tiger. A fires at the tiger knowing it to be likely that the shot may kill Z, but not intending to kill Z, and in good faith intending Z’s benefit. A’s ball gives Z a mortal wound. A has committed no offence. (c) A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is no time to apply to the child’s guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the child’s benefit. A has committed no offence. (d) A is in a house which is on fire, with Z, a child. People below hold out a blanket. A drops the child from the house-top, knowing it to be likely that the fall may kill the child, but not intending to kill the child, and intending, in good faith, the child’s benefit. Here, even if the child is killed by the fall, A has committed no offence. Explanation.—Mere pecuniary benefit is not benefit within the meaning of sections 88, 89 and 92. No Criminal Intention to Cause Death All the three sections stipulate that the doer of the act causing the harm should not have the intention to cause death. Section 88 provides that ‘Nothing, which is not intended to cause death, is an offence...’ As far as ss 89 and 92 are concerned, they deal with situations where the persons to whom the harm is caused are not in a position to give consent. Section 89 deals with acts done for the benefit of children under 12 years of age and of persons of unsound mind, where the guardian or person having charge of the person can act or give the consent. In these two sections, the first proviso to the sections provides that ‘this exception shall not extend to the intentional causing of death, or to the attempting to cause death’. These words really mean that there should be no intention or mens rea to cause death, in order to avail of the defence against criminal liability under these sections. In all these cases, there should be no intention to cause death, though the doer might have the knowledge that the act is likely to CHAPTER 12 Consent and Compulsion Page 7 of 13 cause death. So, a distinction between ‘intention’ and ‘knowledge’ is made. The word ‘intention’ is capable of different shades of meaning in the IPC itself. It is clear from the illustrations to ss 88, 89 and 92 that the Code uses the word ‘intention’, in the sense that something is intentionally done, if, it is done deliberately or purposely, in other words, is a willed though not necessarily a desired result, or a result which is the purpose of the deed.27 The surgeon of the illustrations certainly does not desire the harm that may be caused, nor is that his purpose. Nevertheless, the provisions of the sections show that he could have intended the harm, and is saved from being a criminal only by these provisions. However, an unqualified medical practitioner cannot claim protection of s 88 as it can hardly be deemed to act in ‘good faith’.28 For the Benefit of the Person Under all these three sections, if, an accused wants to avail of the exemption from criminal liability, he has to establish that the act was done not only with no intention to cause death, but for the ‘benefit’ of the person concerned. The explanation to s 92 stipulates that ‘mere pecuniary benefit is not benefit within the meaning of ss 88, 89 and 92.’ The words ‘mere pecuniary benefit’ denote that while the act cannot be only for pecuniary benefit, it may be for pecuniary benefit along with some other benefit. However, if the harm caused resulted only in a pecuniary benefit, then it will not amount to ‘benefit’ as contemplated under ss 88, 89 and 92. For instance, if a beggar desired that his hand be amputated, to enable him to beg successfully, the harm caused would have conferred only a ‘mere pecuniary benefit’ on the sufferer.29 Consent30 Under s 88, consent is required from the person harmed.31 Under s 89, since it deals with harm caused for the benefit of a child below 12 years or a person of unsound mind, consent must be obtained from the guardian or other person having lawful charge of that person. As far as s 92 is concerned, it deals with emergency situations where it may not be practical or possible to obtain the consent of either the person harmed or the guardian, if the person harmed is a minor or a person of unsound mind. The illustrations to s 92 clearly denote the situations contemplated under this provision. Good Faith All the three sections provide that the doer of the act causing the harm must not have any intention to cause death or grievous injury, but must also act in good faith. A thing, by virtue of s 52 of the IPC, is said not to be done in good faith if it is done or believed without due care and attention. In order to get the benefit of s 88 or s 89, it is necessary for the accused to prove that the act charged as an offence was done by him with ‘due care and attention’.32 However, as far as ss 88, 89 and 92 are concerned, ‘good faith’ may sometimes mean more than just ‘due care and attention’. This is especially so, when dealing with acts done by physicians and doctors. In respect of physicians and doctors who undertake to administer medicine or to perform surgical operations, apart from diligence and care, reasonably sufficient knowledge and experience of their business is also called for.33 If this is absent, then the consent given by the patient may not come to the aid of the harm doer. Consent on the part of the patient and of good faith on the part of the medical practitioner are interdependent.34 Corporal Punishment by School Teachers When a child below 12 years is sent by its parent or guardian to a school, it is presumed that the parent or the guardian gives his implied consent to put the child or ward under the discipline and control of the school authorities and to inflict, if necessary, reasonable punishment on the child for maintaining school discipline or correcting it.35 And when a child of over 12 years of age goes to school, it may be assumed that the child gives an implied consent to subject itself to the discipline and control of the school authorities and to receive reasonable and moderate corporal punishment as may be necessary for its correction and for maintaining school discipline.36 A moderate corporal punishment inflicted by a teacher, in good faith, for maintaining discipline in the school or inculcating good habits in the child, therefore, does not amount to an offence. A teacher will be protected under s 89 of the Code even when he exceeds the limits, if any, laid down by a state government.37 In M Natesan v State of Madras ,38 wherein a school teacher gave corporal punishment to his pupil for mischievous behavior, the Madras High Court ruled: It cannot be denied that having regard to the peculiar position of a school teacher he must in the nature of things have authority to enforce discipline and correct a pupil put in his charge. To deny that authority would amount to a denial of all that is desirable and necessary for the welfare, discipline and education of the pupil concerned. It can therefore be assumed that when a parent entrusted a child to a teacher, he on his behalf impliedly consents for the teacher to exercise over the pupil such authority. Of course, the person of the pupil is certainly protected by the penal provisions of the Indian Penal Code. But the same Code has recognised exceptions in the