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LAW OF CRIMES

Mistake as an exception in Crime


FAHIMUDDIN AHMED KHAN B.A. LLB., 4th SEMESTER

ACKNOWLEDGMENT
I would like to extend my heartfelt gratitude to my teacher, DR. ROSE VARGHESE, without whose able guidance and support this project would not have been possible. The resources of my college library as well as the internet have been extremely contributory in the completion of my project. I want to express my sincere thanks to my parents and friends for their love, support, cooperation and help during the making of this project.

FAHIMUDDIN AHMED KHAN

General Exceptions
Certain person are exempt from the operation of the criminal law. Article 361 of the Constitution of India stipulates that the President of India, Governor of a State, or Rajpramukh are not answerable to any court for the matter pertaining to the exercise and performance of the powers and duties of their office. It provides firther that no criminal (or civil) can be instituted or continued against the President or Governor of a State in any Court during the term of their office. Chapter 4 of the IPC captioned General Exceptions, comprising S.76 to 106, exempts certain persons from criminal liability. An act or omission of an accused even though prima facie falls within the terms of a section defining an offence or prescribing a punishment therefore, does not constitute an offence if it is covered by any of the exceptions enumerated in the Chapter 4. In other words, a wrongdoer, who has committed an actus reus with the requisite mens rea, may escape from liability because he has a general exception to offer as an answer to the prosecution. The general exceptions, in ultimate analysis, limit and override offences and penal provisions of the Code. The title General Exceptions is used to convey that these exceptions are available to all offences. Broadly speaking, the provisions relating to General Exceptions deal with two classes of exceptions, namely, excusable and justifiable exceptions. In the first category, those cases of exceptions may be grouped where there is a lack of mens rea on the part of the person committing the offence, either by reason of mistake as to the existence of fact, or by reason of the act being done accidentally, or by reason of infancy, insanity and so on. In the second category, those cases may be placed where the circumstances, under which the act is committed, furnish legal justification either by reason of the act being done by a judge, when acting judicially or in pursuance of the orders of a court, or to prevent harm to a person or to a property, with or without consent of the person for whose benefit the act is done, or when communication is made in good faith; or when a person is compelled by threat to do an offence; or the act is of a trivial nature; or the act is done in the exercise of the right of private defence

Position under English Law


English criminal law appears to pursue a relatively strict policy against those who act in ignorance of the true legal position, but the maxim ignorantia juris neminem excusat (ignorance of the law excuses no one) is too strong as a description. Ignorance or mistake as to civil law, rather than criminal law, is capable of forming the basis of a defence; indeed, the crimes of theft and criminal damage explicitly provide for defences where a person believes that he has a legal right to take or to damage property. But it would be unsafe to state the rule by reference to a distinction between matters of civil law and criminal law, because offences are often defined in such a way as to blur the two. One difference between these two offences is that the latter contains the word knowingly, whereas the crime of handling includes the words knowing or believing; it is certainly true that a number of English decisions have allowed mistake or ignorance of the law to negative knowingly, but this cannot explain all the decisions. The state has duties to declare and to publicize laws and regulations: non-publication of a Statutory Instrument will usually afford a defence to any crime under that Instrument to a person unaware of its existence, and failure to publish a government order in respect of a particular person will also afford a defence to that person if he or she is unaware of the order. It could be argued that individual fairness demands the recognition of ignorance or mistake of law as an excuse: a person who acts in the belief that conduct is non-criminal, or without knowing that it is criminal, should not be convicted of an offence. Although ignorance of the law may not negative the fault requirements of a particular offence, respect for individual autonomy supports the excuse in its own right: a person who chooses to engage in conduct without knowing that it is criminal makes a choice which is so ill-informed as to lack a proper basis. The counter-arguments are based on conceptions of social welfare. One is the utilitarian argument that it is desirable to encourage knowledge of the law rather than ignorance, and any rule which allowed ignorance as a defence would therefore tend to undermine law enforcement. This does not establish that ignorance of the law is always wrong, merely that it may be socially harmed. It may be argued that it is a duty of citizenship to know the law. Thus, to convict a person despite ignorance of the law is not to attack the principles of choice and individual autonomy which were identified earlier as fundamental to the principles of fairness. Rather it is to forsake an atomistic view of individuals
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in favour of a recognition of persons as social beings, with both rights and responsibilities within the society in which they live. It has already been argued that in many situations it is fair to expect citizens to take care to enquire into the surrounding circumstances before they act, and the case for requiring some mistakes to be reasonable has been put. A similar line of argument might support a duty on each citizen to take reasonable steps to become acquainted with the criminal law. There are few problems in making the duty known, since ignorance of the law is no excuse is a widely-known principle even now.

Mistake of fact
Section 76 deals with two classes of cases wherein a person is excused from criminal liability on the ground of mistake of face, viz., (1) When a person is bound by law to do something and does it; (2) When a person believes in good faith, owing to a mistake of fact and not a mistake of law, that he is bound to do something and does it. As to mistake or ignorance of fact, HALSBURY lays down: Except where an offence is so defined that proof of intention or foresight is unnecessary, mistake of fact is a defence provided that on the facts as the defendant believed them to be he did not have the mens rea required to constitute the offence charged. Where, owing to a mistake of fact, the defendant did not intend to do the prohibited act the defence is made out if the mistake was honestly made by him; but where the defendant intended the prohibited act and asserts that he was mistaken as to facts which, had they existed, would afford justification or excuse, the general rule is that his mistake affords him a defence only if it was honestly made and there were reasonable grounds for making it. Kenny states the first condition is that the mistake must be of such a character that had the supposed circumstances been real, they would have prevented the alleged liability from attaching to the person in doing what he did. Therefore, it is no defence for a burglar, who breaks into house no. 5, to show that he mistook that house for no. 6, or that he did not know t hat nine oclock had struck. For in these circumstances the actus reus and mens rea would still have existed in the circumstances supposed. On the other hand, it will be no offence to lay violent hands upon a person, whom you reasonably, though mistakenly, suppose to be committing a burglary. Mostly however, mistake negatives mens rea rather than actus reus. Mistake is not mere forgetfulness.1 It is a slip made, not by design, but by mischance. Under Sec.76 and 79 a mistake must be one of fact and not of law. At common law an honest and reasonable belief in the existence of circumstances, which, if true would make the act for which a prisoner is indicted an innocent act has always been held to be a good defence. Honest and
1

Barrow v. Isaacs [(1891) 1 QB 417]

reasonable mistake stands in fact on the same footing as absence of the reasoning faculty, as in infancy, or perversion of that faculty, as in lunacy. It may be laid down as a general rule that an alleged offender is deemed to have acted under that state of facts which he in good faith and on reasonable grounds believed to exist when he did the act alleged to be an offence.

Chirangi v. State of M.P.2


The accused who was a widower led a homely life with his 12 year old son, nephew and unmarried daughter. The accused suffered from no insanity. One day the accused accompanied by his son went with an axe in his hands to woods to gather siadi leaves. After sometime, his nephew who had been working in the field discovered the accused sleeping under a tree with the blood stained axe beside him. There was no trace of the son of the accused. Later his son was found hacked to death. It transpired in evidence that the accused for the time being was seized of a state of mind in which he visualised that a tiger was going to pounce on him and as such mistaking his son as the tiger he cut him into pieces. M.P. High Court took the view that it was a mistake of fact that immunise him for any offence. He had no intention nor could have any intention to cause death of his son whom he loved dearly. The accused was acquitted. The High Court of M.P. relied on a Lahore case4 where the Division Bench acting under Section 79 of the I.P.C., held that an accused who killed a man with several blows from a stick was not liable under Sec. 302, Sec. 304 or Sec. 304A, because he believed in good faith at the time of the attack that the object of his assault was not a living human being but a ghost or some object other than a living human being. The Division Bench made it clear that the ground for their opinion was that mens rea or an intention to do wrong or to commit an offence did not exist in the case and that the object of culpable homicide could only be a living human being.

Bonda Kui v. Emperor3


The same view was followed in this case in which a woman, in the middle of the night saw a form, apparently human, dancing in a state of complete nudity with a broomstick tied on one side and a torn mat around waist. The woman, taking the form to be that of an evil spirit or a thing which consumes human
2 3

(1952) 53 Cr.L.J. 1212 AIR 1943 Pat 64

beings, removed her own clothes and with repeated blows by a hatchet felled the thing to the ground. Examination showed, however, that she had killed a human being who was the wife of her husbands brother. The conviction and sentence of the accused woman under S. 304 of the I.P.C. were set aside, on the ground that she was fully protected by the provisions of S. 79 I.P.C., inasmuch as the statements made by her from time to time which constituted the only evidence in the case, demonstrated conclusively that she thought that she was, by a mistake of fact, justified in killing the deceased whom she did not consider to be a human being, but a thing which devoured human beings. Ignorantia facti doth excuse, for such ignorance many times make the act itself morally involuntary. Where a man made a thrust with a sword at a place where, upon reasonable grounds, he supposed a burglar to be, and killed a person who was not a burglar, it was held that he had committed no offence.4 In other words, he was in the same situation as far as regards the homicide as if he had killed a burglar.

State of Orissa v. Khora Ghasi5


The accused while guarding his maize field shot an arrow at a moving object in the bona fide belief that it was a bear and in the process caused the death of a man who was hiding there. It was held that he could not be held liable for murder as his case was fully covered by S. 79 as well as S. 80 I.P.C. Similarly, where the accused while helping the police stopped a cart which they in good faith believed to be carrying smuggled rice but ultimately their suspicion proved to be incorrect, it was held that they could not be prosecuted for wrongful restraint under S.341 as their case was covered by S. 79 I.P.C.6 When there are ample grounds albeit under misapprehension of fact with regard to validity of licence under the Essential Supplies Act, and the undertaking to renew the licence was given at a time when the department was well aware that the accused was carrying on the business for some time even without a valid licence, it was held that the accused was entitled to the benefit of S.79.7

4 5

Levett, (1839) Cro Car 538 1978 Cr.L.J. 1305(Orissa) 6 Keso Sahu v. Saligram, 1977 Cr.L.J. 1725(Orissa) 7 AIR 1955 NUC(All) 5505

In considering whether S.79 can be availed of by an accused, the important thing to consider is the mental attitude of the accused, and the section will apply only if the Court is satisfied that he made a mistake of fact after taking due care and attention. In a case the accused who was the managing director of a Bank was charged under S.409, Penal Code, in that he disposed of certain securities deposited with the Bank, for the use of the Bank but in contravention of the terms of the agreement under which those securities had been deposited with his Bank. On behalf of the accused it was contended that he had acted under a genuine mistake of fact as to his rights as a managing director, because he believed in good faith that he a right to dispose of those securities in the interests of his own Bank. It was held that it could not be accepted that a managing director of a Bank would not know that he had no power to dispose of securities which had been pledged to the Bank to cover an overdraft account, when in fact the pledgers had not taken any overdraft and did not owe any money to the Bank. Further, the fact that the plea of mistaken belief had not been been taken in the trial Court, and had been set up for the first time in appeal, was an indication of the state of mind of the accused at the time of the commission of the offence. Under these circumstances it had to be held that the accused had failed to establish that his case fell under S.79.8

Similarly, as Cross and Jones observe that on a charge of murder by shooting under the English law, however weak the prisoners evidence that he believed the gun to be unloaded may be, the jury must acquit him of murder if they were not sure that he knew it was loaded for that in that case the prosecution will have failed to prove the necessary mens rea to constitute the offence of murder. But where an act is clearly a wrong in itself, and a person, under a mistaken impression as to facts which render it criminal, commits the act, then according to the ratio decidendi in Princes case9 he will be guilty of a criminal offence. Mistake as to age is one relating to fact. It affords no valid defence when a

Jaswantrai Manilal Akhaney v. State of Bombay, AIR 1956 SC 575 (1875) IR 2 CCR 154

person enticed a girl below 16 and commits sexual intercourse with him, it is no defence that she was honestly believed to be not below sixteen. A somewhat different view was entertained in a foreign (New Gunea) case. 10 It held a consented sexual intercourse with a girl of sixteen or above is not rape. It so happened that the accused entered into consented intercourse with a girl below sixteen on a reasonable belief that she was sixteen or above. The requisite mens rea may then be lacking. In a case in National Court New Gunea such a question on interpretation of S.216(2), Criminal Code of New Gunea has been answered by holding that in such as case the fact that accused person believed on reasonable grounds that the prosecutrix was sixteen or above is a complete and valid defence. Mistake of fact or ignorance of fact under common law is generally a defence, provided that it was one of the facts, and provided that had the facts been as the accused supposed, he would have had a defence to the crime with which he is charged. There must be reasonable grounds for the mistake but there is no general rule of law to this effect. Even an unreasonable mistake may entirely exculpate the accused under common law. For instance, in Wilson v. Inyang11, an African naturopath physician placed the letters N.D., M.R.D.P. after his name in an advertisement. He was charged with wilfully and falsely implying that he was a registered medical practitioner contrary to section 40 of the Medical Act, 1858. It was held that as the accused honestly believed in good faith that he was entitled to act as he did in consequence of an examination which he had taken, the offence had not been committed. The reasonableness of the accuseds belief was, in law, an immaterial consideration, although if he were to describe himself as N.D. again, he would be committing an offence, because he would then know that the description colourably resembled that of M.D. Master of Medicine. Mistake must be reasonable, if it is to be a defence, gains support from the decision in the leading case of R. v. Tolson12. Mrs. Tolson was charged with bigamy under section 57 of the Offences Against the Person Act, 1881 for
10 11

In re, (1986) LRC (Law Reports of Commonwealth) (Cr.) 838 (1951) 2 KB 799 12 (1889) 23 QBD 168

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contracting a second marriage during lifetime of her former husband; she was acquitted on the grounds that she believed in good faith and on reasonable grounds that her husband had died poor to the time of her second marriage. Mrs. Tolson married Mr. Tolson on September 11, 1880. After a year he deserted her on December 13, 1881. On inquiries made by her father and others she was led to believe that her husband had been drowned in a vessel bound for America, which went down with all hands on board. On January 10, 1887, Mrs. Tolson, supposing herself to be a widow contracted a second marriage with another man. The circumstances were well known to the second husband and the ceremony was in no way concealed. The intent to commit bigamy was held to be negatively by a majority of five to nine judges by the accuseds mistaken belief in the death of her husband. However, in a Scottish case Lolley13, it was held by all the judges that a man was rightly convicted of bigamy who had married after an invalid divorce, which had been obtained in good faith, and the validity of which he had no reason to doubt.

Similarly, in Princess14 case the House of Lords by a majority of 15 to one held the accused liable for abduction of a girl under sixteen though he believed in good faith and on reasonable grounds that she was over 16 years. The Court held a mistaken belief even though based on reasonable grounds, that the girl was over sixteen years of age is no defence to a charge of kidnapping- statutory offence of taking a girl under sixteen out of the possession and against the will of her parents or guardian. While comparing Prince case from Tolson it is obvious that in case of Prince the act in question is mala in se, i.e., wrong in itself for which the person is liable irrespective of knowledge or not. On the other hand, in case of Tolson, the act of marriage is mala in prohibit- marriage in itself is not a worng. Even in some religions such as Muslim tribals and old textual Hindu law polygamy was permitted. Bigamy has been made an offence only in order to protect and safeguard the interest of the other spouse and children.

13 14

1812 Russ & Ry 237 1875 LR 2 CCR 154(HL)

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Mistake of law
Mistake of law means a mistake as to the existence or otherwise of any law on a relevant subject as well as a mistake as to what the law is. A mistake or ignorance of law, whether civil or criminal, is no defence in law, howsoever, genuine it might have been. In other words, all persons resident in a country, whether subjects or foreigners, are bound by the law of the land. The rule is founded on the fiction that every man knows the law, or at any rate ought to know the law under which he lives or to which he is subject for the time being. Without doubt, it is not possible even for professional lawyers to know the entire bulk of law. Nevertheless, the rule has been recognised as a basic principle of law on the ground of judicial expediency and public policy. If ignorance of the law were a defence, it would be open to an accused charged of a crime to allege that he was not aware of the law on the point; and it would be quite impossible for the prosecution to prove that the accused was cognizant of the law in question. The result would be the acquittal of accused persons in all cases, rendering the administration of justice nigh unto impossible. Another important justification for not allowing a mistake of law as a defence apparently is that the operation of a provision of the law is intended to be independent of its being known to everybody. If this were not so, great difficulty would be experienced in the enforcement of the law and would lead to injustice. Section 76 and 79 in the Code have expressly excluded mistake of law from the purview of the exceptions. The maxim is applied in a strict sense. However, since no minimum punishment is provided in the Code, as a general rule the courts have passed considerably lenient sentences when a non-negligent enviable mistake of law has occurred. Mistake of law ordinarily means mistake as to existence or otherwise of any law on a relevant subject as well as mistake as to what the law is. The principle, that ignorance of law is no excuse, is based on the ground that it is every bodys business to know the law and not on the principle that everyone is presumed to know the law, because such a presumption will be contrary to actual facts. There are circumstances which make out cases of exception to the general rule that ignorance is no excuse.15 The reason behind this exception is that there may
15

The King v. Tustipada Mandal, AIR 1951 Orissa 284

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arise circumstances neutralising the presumption of knowledge of law in every individual, as in the case of a newly enacted statute. It was observed by Baggally L.J. in the case of Burns v. Nowell16, Before a continous act or proceeding not originally unlawful, can be treated as unlawfully by reason of the passing of an Act of Parliament by which it is in terms made so, reasonable time must be allowed for its discontinuance; and though ignorance of the law may, of itself, be no excuse for the master of a vessel who may nevertheless be taken into account when it becomes necessary to consider the circumstances under which the act or proceeding alleged to be unlawful was continued, and when and how it was discontinued, with a view to determining whether a reasonable time had elapsed without its being discontinued. More pertinent to the question is the following passage in Maynes law of India: Suppose, for instance, that an Act of Parliament was passed in England, applicable to India, which came into operation as soon as the royal assent was given and that an offence against it was committed in India a week after it came into operation, before the Act could have arrived, or been promulgated in India; I do not think it could be contended that the law was in force in India at the time the act was committed. It is, course, well settled that ignorance of the law will not excuse any person who has capacity to understand the law. Mistake of law, normally relates to mistake as to accuseds right under the law to do a particular act or pursue a particular course of conduct. The courts are not at all concerned with the legality or otherwise of the rights under which the accused purported to act. The only question that the courts have to decide in such cases is, whether the claim of right was honestly and bonafide held by the accused. This question will essentially be one of fact. In such cases, it is the good faith of the accused and not the right itself which requires adjudication. In this sense, a mistake of law can, to a certain extent, be a defence to a criminal charge. It was observed of Tolsons case that an honest and reasonable mistake stands in fact on the same

16

(1880) 5 QBD 444

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footing as absence of the reasoning faculty, as in infancy or the perversion of that faculty as in lunacy. It was also added that this exception of common law equally applies in the case of statutory offences unless it is excluded expressly or by necessary implication. It is now well settled as a principle of English criminal law that as a general rule, an honest and reasonable belief in a state of facts, which, if they existed, would make the accuseds act innocent, affords an excuse for doing an act which would otherwise be an offence. And in this connection, the difference between a mistake of fact and a mistake of law would not be material. A person, who puts forward a claim of right founded on mistake or ignorance of civil law pertaining to the matter, need not necessarily establish that the mistake or ignorance arose inspite of reasonable diligence. The only thing necessary is that the mistake must be one which leads the accused to claim that he has a right to act as he does. A mistake as to criminal law only will not give rise to a claim of right: an error as to civil law may do so. Though ignorance of law is not a ground for acquittal for a breach of it, it is ordinarily very much of an excuse as it leads to a reduction of the sentence.17 The Indian Penal Code does not exempt an act done under a mistake of law from the operation of the penal law but, it is obvious that if a person accepts the decision of a Full Bench of the High Court in the State as a guide to his conduct, he commits nothing more than a technical offence that if that view is later nit accepted as laying down the correct law.18

State of Maharashtra v. Mayer Hans George19


The Supreme Court refused to accept the plea of ignorance of the notification issued by the Reserve Bank of India on November 24, 1962 imposing restrictions on the transit of gold to a place outside the territory of India and held the accused, French national, who left Zurich on his way to Manila November 27, 1962 liable for violating the said notification, when his plane landed in Bombay.
17

Sita Ram Kunbi v. Emperor, 29 (1928) Cr.L.J. 506 The State v. Krishna Murari, 1955 Cr. L.J. 1025 Barronet, (1852) Dearsly 51

18

19

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The respondent left Zurich by a Swiss Aeroplane on 27 November 1962 which touched Santa Cruz Airport at 6:08 am on the next day. The customs officers on the basis of previous information searched for the respondent and found him sitting in the plane. On a search of the person of the respondent it was found that he had put on a jacket containing 28 compartments and in 19 of them he was carrying gold slabs weighing approximately 34 kilos. It was also found that the respondent was a passenger bound for Manila. Ignorance of the law is no defence to a criminal charge; a criminal intent does not involve knowledge on the part of a defendant that his acts or omissions were against the law and constituted a crime. Where a person acts under a mistake of law which precludes him from having the requisite mental element for a particular offence, he cannot be guilty of that offence. This is the case so long as such a mistake was honestly entertained, whether or not it was reasonable to make it. Mistake in point of law in a criminal case is no defence. Mistake of law ordinarily means mistake as to the existence or otherwise of any law on a relevant subject as well as mistake as to what the law is. Ignorance of the municipal law of the Kingdom, or of the penalty thereby inflicted upon offenders, doth not excuse any, which is of the age of discretion and compos mendis, form the penalty of the breach of it; because every person of the age of discretion and compos mendis is bound to know the law, and presumed to do so. If any individual should infringe the statute law of the country through ignorance or carelessness, he must abide by the consequences of his error; it is not competent to him to aver in a Court of Justice that he was ignorant of the law of the land, and no Court of Justice is at liberty to receive such a plea. The maxim ignorantia juris non excusat, in its application to criminal offences, admits of no exception, not even in the case of a foreigner who cannot reasonable be supposed in fact to know the law of the land. In a case two Frenchmen were charged with wilful murder because they had acted as seconds in a duel in which one man had met his death. They alleged that they were ignorant of the fact that by the law of England killing an adversary in a fair duel amounted to murder. But the plea was overruled.20The legal presumption that everyone knows the law of the land is often untrue as a matter of fact. The reason for this seems to be nothing but expediency, otherwise there is no knowing of the extent to which the excuse of ignorance of law might be carried.
20

Bilbie v. Lumley, (1802) 2 East 469

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Indeed, it might be urged almost in every case.21 This rule of expediency has been put to use even in a case where the accused could not have possibly known the law in the circumstances in which he was placed. Whenever the section of justification of an offence either due to mistake of fact or mistake of law arises, the guiding rules are (1) that when an act is in itself plainly criminal, and is more severely punishable if certain circumstances coexist, ignorance of the existence of such circumstances is no answer to charge for the aggravated offence. (2) That where an act is prima facie innocent and proper, unless certain circumstances co-exist, then ignorance of such circumstances is an answer to the charge. (3) That the state of the defendants mind must amount to absolute ignorance of the existence of the circumstance which alters the character of the act, or to a belief in its non-existence. (4) Where an act which is in itself wrong is, under certain circumstances, criminal, a person who does the wrong act cannot set up as a defence that he was ignorant of the facts which turned the wrong into a crime. (5) Where a statute makes it penal to do an act under certain circumstances, it is a question upon the wording and object of the particular statute, whether the responsibility of ascertaining that the circumstances exist is thrown upon the person who does the act or not. In the former case his knowledge is immaterial.

21

Bilbie v. Lumley, (1802) 2 East 469

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Distinction between S.76 and 79


The distinction between S.76 and this section is that in the former a person is assumed to be bound, and in the latter to be justified, by law; in other words, the distinction is between a real or supposed legal obligation or a real or supposed legal justification, in doing the particular act. Under both there must be a bone fide intention to advance the law, manifested by the circumstances attending the act which is the subject of charge; and the party accused cannot allege generally that he had a good motive, but must allege specifically that he believed in good faith that he was bound by law to do as he did, or that being empowered by law to act in the manner, he had acted to the best of his judgment exerted in good faith. The antithesis between two cases is involved in the words bound by law in Section 76 and justified by law in Section 79. As explained by Atchuthen Pillai: The distinction between S.76 and 79 consists in this:- Section 76 deals with cases where by reason of a mistake of fact the person under a mistake considers himself bound by law to act in a particular way, although on the true state of facts his act is an offence. A master kills his servant in the night mistaking him for a burglar who has entered his room during the night. S.79, on the other hand deals with cases where by reason of a mistake of fact the person under such mistake considers himself simply justified by law to act in a particular way. A seeing Z engaged in inflicting severe blows to D, seizes Z in order to entrust him to the Police. But in this case later on it turns that Z was acting only in self-defence and as such the seizure of Z by A was unlawful. Since A acted under an honest belief that he was justified by law, under the circumstances he imagined, he will be excused.

17

Immunity to accused for act in good faith believing to be justified by law


The gist of Section 79 is that if an act is committed by one person; if that person believes that he is justified by law in so doing and if this belief is induced by a mistake of fact but not law, then the act committed by him does not amount to an offence. To get the protection of S.79 I.P.C. it is sufficient if the accused can show to a reasonable extent that they in good faith believed that an offence of smuggling of rice was going on and on this behalf the accused persons bring the cart and cartman to police out post. The said suspicion may ultimately prove to be incorrect, but that will amount to a mistake of fact and that act if is committed in good faith, then the accused persons are protected by S.79, I.P.C. Jurisprudentially viewed, an act may be an offence definitionally speaking but a forbidden act may not spell inevitable guilt if the law itself declares that in certain special circumstances it is not to be regarded as an offence. S.79 of Penal Code makes an offence a non-offence when the offending act is actually justified by law or is bona fide believed by mistake of fact to be so justified. If the performance of the act which constitutes the offence is justified by law, i.e., by some other provision, then S.79 exonerates the doer because the act ceases to be an offence. Likewise, if the act were done by one who by reason of a mistake of fact in good faith believes himself to be justified by law in doing it then also, the exception operates and the bona fide belief, although mistaken, eliminates the culpability. In the Supreme Court case the court analysed the word justified in S.79, I.P.C. and held Justified according to Blacks Legal Dictionary means: Done on adequate reasons sufficiently supported by credible evidence, when weighed by unprejudiced mind, guided by common sense and by correct rules of law. The Shorter Oxford English Dictionary assigns this meaning for justification. The showing in Court that one had sufficient reason for doing that which he called to answer, the ground for such a plea.

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Immunity to accused for act in good faith believing to be justified by Police Act
If the act complained of is wholly justified by law, it would not amount to an offence at all in view of the provisions of S.79 of the Penal Code. Many cases may, however, arise where in acting under the provisions of the Police Act, or other law conferring powers on the police, the police officer or some other person may go beyond what is strictly justified in law. State of A.P. v. N. Venugopal22 In that case the accused, a police officer tortured a delinquent in lock up. The Supreme Court while reversing the judgment of High Court held that High Court fell into the error of thinking that whatever a police officer does to a person suspected of a crime at a time when the officer is engaged in investigating that crime should be held to be done in the discharge of his official duties to investigate and as such under the provisions of the law that imposed this duty on him. This view is wholly unwarranted in law. The Supreme Court held that it cannot possibly be said that the acts complained of in the present case were done or intended to be done under any provision of the Police Act or the Code of Criminal Procedure or any other law conferring powers on the police. The accused police officer thus was convicted.

22

AIR 1964 SC 33 19

Protection to armed force officers vis-a-vis Section 79, IPC


Sections 129 to 131 Cr.P.C. preserve or the power of armed force officers to disperse an unlawful assembly. Section 132 Cr.P.C. provides for protection of such officers for acts done under S.131, Cr.P.C., 1973. It enacts that no prosecution against any person for an act purported to be done under S.129 to 131 shall be instituted except with the sanction of Central Government where such person is an officer or member of armed forces. To get the benefit of S.132, Cr.P.C., 1973 the accused has to show (1) that there was an unlawful assembly or an assembly of five or more persons likely to cause a disturbance of the public peace; (2) that such an assembly was commanded to disperse; (3) that either the assembly did not disperse on such command or, if no command had been given, its conduct had shown a determination not disperse; and (4) that in the circumstances he had used force against the members of such assembly. He has to establish these facts just in the same manner as an accused has to establish any other exception he pleads in defence of his conduct in a criminal case. To show this is not equivalent to the accused establishing facts which would be necessary for him to take advantage of the provisions of S.79 of I.P.C. Section 79, I.P.C. deals with circumstances which, when proved makes acts complained of not an offence.

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Bona fide claim of right


Section 79 renders immunity to a person who commits an act or omits from doing an act bona fide. It is deducible from S.79 that the plea of bona fide claim of right is available when an act is done in good faith with the reasonable belief that such a right exists, be it however weak. When a plea of bona fide claim of right is raised it is always a question of fact whether such a belief as aforesaid exists or not. The claim must be bona fide, not a pretence. A claim of right is said to be bona fide when there is either a legal right or appearance of legal right or colour of legal right. Colour of legal right means a fair pretence of a bona fide claim of right, however weak-the existence of an antecedent dispute indicates the bona fide claim or right.

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Bibliography
1. Ratanlal & Dhirajlal's law of crimes by Ranchhoddas

2. Commentary on Indian Penal Code by K.D. Gaur

3. Indian Penal Code by Jaspal Singh

4. Principles of Criminal Law by Andrew Ashworth

5. Criminal law by P.S.A. Pillai

6. Criminal law: Cases and Materials by K.D. Gaur

7. www. Legalsutra.com

8. Legalsevicesindia.com

9. Indiankannon.com

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