General Exceptions under Indian Criminal justice system written by Naina solanki student of Prestige institute of management and research
General Exceptions are the defenses provided to the accused which exculpates criminal liability. An accused can be prevented from criminal liability of any illegal act or omission (offense) done by him, which means there are some exceptions that can make an act or an omission non-criminal/non-offense.
Chapter IV section 76-106 contains such exceptions which are also known as general defenses. There was a need for altogether a different chapter as the limitations need not be given after every penal provision and to avoid repetition.
Section-6 of IPC states that definitions in the code to be understood subject to general exceptions, which means that every definition of an offense, every penal provision, and every illustration of those, shall be understood subject to the exceptions contained in the chapter “General Exceptions”.
The burden of proof to prove any of the exceptions is on the accused. If the accused is able to prove an exception then he/she will be exempted from the charges against him and criminal liability followed by it.
Also, according to Section 105 of the Indian Evidence Act, when a person is accused of any offense then the burden of proving the exception is on him.
Illustration- A kills B when he commits such offense A was involuntarily intoxicated, here the burden to prove intoxication as an exception is on A.
The general exception during police investigation sometimes is on police.
General Exceptions under IPC
This chapter consists of 31 sections which can be classified under following heads-
- Mistake of fact(Section- 76,79)
- Judicial Acts(Section-77,78)
- Absence of criminal intent(81-86)
- Acts done with consent(87-90)or without consent(92)
- Trifling acts(95)
- Private Defence(96-106)
These exceptions are discussed in detail below-
Mistake of Fact
It is based on the maxim – IGNORANTIA FACTI DOTH EXCUSAT AND IGNORANTIA JURIS NON EXCUSAT, which means that ignorance of facts can be excused but ignorance of the law cannot be.
In Queen v Tolson (1889), A woman married another man as she believed that her first husband died, she was accused of Bigamy but it was held that she did believe that her husband was dead and she did not hide this from the other man. She was exempted from the charges of bigamy.
This exception is majorly based on two principles-
(i)a person is bound by law or (ii)he has a belief that he is bound by law.
An officer is bound by law to follow the orders of superior – police, military, etc.
In Chirangi vs state – A father killed his son, he did not intend to do so. He believed there was an animal. This was a mistake of fact.
When any act that is justified by law or the person doing so beliefs that it is justified by law will not amount to an offense.
Illustration- A, a policeman sees B has killed Z, he confines B but later it comes to his knowledge that B killed Z in self-defense. A will be exempted under section 79.
Section 76 talks about legal compulsion and section 79 is with regards to legal justification, the acts which are justified by law meaning a person is either bound by law or he is justified by law to do so.
Nothing is an offense which is done by a judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law. (Sec 77 IPC)
This section gives power to the judges acting in judicial capacity and protection as immunity to them from criminal proceedings under this exception. This is provided to widen the independence of the judiciary.
The act must have been done in discharge of his duty and within the jurisdiction, even if the judge beliefs in good faith that the act is in his jurisdiction he will be protected.
Section 78- Any act that is done in pursuance of a court order or which is warranted by a judgment or an order will not be an offense. Even if the court passed an order which does not fall under its jurisdiction but if believed in good faith that it does then the act so done in its pursuance will be exempted from criminal liability.
Nothing is an offense which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.
This means that an act by a person is done without intention and he is doing it lawfully without intention to harm anybody.
Illustration- A while demolishing a building gives proper warning to the neighborhood and puts a proper sign but B gets hurt from the stone. Here, A was acting in a lawful manner and with caution. If A had not put up a sign then that would have been a case of negligence.
In Jageshwar v Emperor, the accused was beating a person, and to save the man his wife came with her child in hand, the child got hurt and died. This was not considered to be an accident because the accused was doing the unlawful act.
Absence of criminal intent
- Acts of a child(Incapability)
If an act is done with the knowledge that it can cause harm but without criminal intent and in good faith for preventing or avoiding harm to a person or property.
It is a question of fact as to gauge the nature of harm prevented.
Illustration: When there are two choices to save the life of one person and to save the lives of ten people, a person decides to save the lives of more people, this caused the death of that 1 person. (Knowledge was there but there was no criminal intention)
Case- In R v Dudley and Stephen, accused people in a ship killed a boy and ate him to save their own lives as no food was available to them. Court held that there is no right to kill someone, homicide cannot be justified. Self-defense and self-preservation, not absolute necessity
Acts of child
Section 82 clearly says that an act done by a child up to 7 years of age is not an offense – “Doli incapax”
Section 83 states qualified immunity (7-12yrs)
According to this section, a child between the age of 7 to 12 years, has not attained sufficient maturity to judge the nature and consequences of the act then he is immune from liability. His subsequent conduct and intention are noticed.
This exception is for the person who at the time of doing an act is of unsound mind and is incapable of knowing the nature and consequences of the act, he is unaware that his act is unlawful.
In Madhukar G. Nigade v State of Maharashtra, the unsoundness of mind must be at the time of committing the offense.
A person at the time of committing the offense by reason of intoxication is incapable of knowing the nature of the act
Or that his act is wrong or illegal, contrary to the law can avail this exception PROVIDED that the toxic is administrated to him without his knowledge or against his will or forcefully.
Section 86 – This section states that Voluntary intoxication will only be exempted if he had the same knowledge as he would have if not intoxicated. This means that a person having criminal intentions will not get the benefit of this section unless intoxication is involuntary.
Volenti fit non-injuria, which means one who consents and had knowledge that something can happen cannot complain.
It is an exception under IPC. Section 87 gives exemption where consent is given in general but Section 88, 89, and 92 are the exceptions for the cases where the act is done in good faith for the benefit of the person who has given the consent, in doing such act if any harm is caused when there is no criminal liability intended.
Illustration: A and B decide to go to an amusement park as consenting adults, A got hurt but as he agreed to go there knowing that if something wrong happens he might get hurt. B is safe by virtue of section 87.
A is a doctor who performs surgery on his patient with his consent with having the knowledge that it may cause harm to the patient but for the benefit of his patient in good faith he performs surgery.
If a person is incapable of giving consent, then in good faith to save his life or for his benefit, an act can be done.
Any person who communicates information that causes harm to another but this act done by him is in good faith and for the benefit of the individual, then such an act is not an offense.
If a doctor tells his patient, he is going to die due to a particular disease, hearing this the patient dies out of a heart attack. It was the duty of the doctor to communicate such information and he did it in good faith.
Duress means any illegal act or omission done in compulsion, due to the threat of instant death. Reasonable apprehension must be caused and also the offense of murder and offense punishable by death is excluded.
Example: At gunpoint, a bank manager is compelled to open the locker of the bank and give away the public money.
This is explained by “De minimis non-curat lex” which means that the law is not concerned about trifles. The harm is slight and no person of ordinary sense and temper would complain of such harm will not be an offense.
The constitution of India provides us with various rights and the Indian Penal code also has given a Right to private defense.
An act done in private defense is not an offense when it is done in order to protect a person or one’s property. It can also be used conditioned to unsound mind or intoxicated or infancy of the accused.
This right is to be exercised subject to certain restrictions such as against a public servant performing his duty, any person working under his direction, and when there is no danger of grievous harm and one can call for help from a public authority.
Illustration: A is attempting to enter your house, you have time to call the police then you cannot use this right but if you believe that it is too late and A has trespassed your property and your life is in grave danger then you can exercise this right.
Section 100 provides us with circumstances under which while exercising the right to private defense death of accused can be caused, they are as follows
(i) When there is a fear of death
(ii) When there is a fear of Grievous hurt
(iii) When there is a fear of rape
(iv) When there is a fear of assault
(v) When there is a fear of kidnapping or abducting
(vi) When there is a fear of wrongful confinement
(vi) When there is a fear of acid attack.
When there are other threats than this other harm then death can be caused. The right to private defense arises with the rise of sudden danger to a person or property, it is continued and can only be commenced till the time when sudden danger or threat is present as soon as threat ends right cannot be exercised.
Example: A is standing, B is coming at him to stab him with a knife. His right to defense is started and is continued till his life is in danger. Suddenly, C arrives and convinces B not to cause harm to A. Now, the right to private defense of A ends here as soon as B backs down.
Self-defense for protecting property:
In the following circumstances, one can cause death-
Robbery- with a sudden fear of death or grievous hurt or wrongful confinement, criminal trespass with same danger, mischief (mischief by fire), theft with imminent danger.
Any harm other than death can be caused when there is no imminent danger is present.
While exercising the right to private defense, if there is a chance of harming an innocent person, still the right can be exercised.
State of Orissa v Nirupama Panda- A man enters the house of a woman to rape her, that woman kills him. Under section 100 she is safe as she used her right to private defense.
Jaydev Singh v State of Punjab: Every person has this right and also it is the duty of the state to protect its citizen but in special circumstances, one can defend himself exercising this right.
State of Madhya Pradesh v Ramesh: Right to private defense is a defensive right and not a retributive right, it is not to be exercised by sudden provoking.
An accused if proved guilty must be liable for his offense and convicted with prescribed punishment. To prove the happening of an offense does not only mean actus rea but other factors are also involved to constitute a crime. Mens rea is an essential element of an offense. Certain acts are prevented to form a crime, certain persons are found incapable of performing a crime. Crime is not just an illegal act or omission, it includes a guilty mind, guilty intention, and guilty act. An act that does not fulfill these qualifications to constitute a crime then is exempted to become an offense and these exceptions are fairly given in the IPC itself as General Exceptions.