Defence of necessity

Section 81 of the4 IPC has incorporated the Doctrine of necessity as a

defence to a criminal charge.
As per Section 81 of IPC “Nothing is an offence merely by reason of of its being
done with the knowledge that it is likely to cause harm, if it be once 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 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 an fault or negligence,
on his part, he 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 o0f his vessel, and that, by changing his course, he
must incur risk of running down 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 boat C and in good faith for the p[purpose of Avoiding the danger to the4
passengers in the b oat 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 and
property. Here, if it be found that the harm to be prevented was of such a nature
and so imminent as to excused A’s act. A is not guilty of the offence

stated by Pollard In Reniger Vs.Fogosia.: In every law there are some things,
which when they happen, a man may break the words of the law, and yet not break
the law itself and such things are exempted out of the penalty of the law and the
law privileges them although they are done against the letter (not the spirit) of it;
breaking the words of the law is not breaking the law, so long as the intent of the
law is not broken . It is a common proverb, ‘quod necessitas non habet legem’-
necessity knows no law.

Let us examine a few leading cases on the doctrine of necessity.

Queen v Dudley and Stephens: Facts- In 1884, the respondents, with one Brooks,
and the deceased, a boy between 17 and 18 years of age, the crew of a registered
English vessel, were cast away in a steam on the High Seas. They had no supply of
water or food. On the 18th day prisoners spoke of their having families, and
suggested it would be better to kill the boy so that their lives should be saved.
Stephens agreed to the act, but Brooks dissented from it. Dudley, with the assent of
Stephens, went to the boy, who was extremely weakened by famine, put a knife
into his throat and killed him. The three men upon the body and blood of the boy
for four days; after which the boat was picked up by a passing vessel and the
prisoners were rescued, still alive.

If the men had not fed upon the boy, they would probably have not survived to be
picked up and rescued, but would within the four days have died of famine. The
boy, be4ing in a much weaker condition, was likely to have died before them. As
the time of the act in question there was no sail in sight, nor any reasonable
prospect of relief. Under these circumstances there appeared to the prisoners every
probability that unless they then fed or very soon fed upon the boy or one of
themselves they would die of starvation. There was no appreciable chance of
saving life except by killing someone for the others to eat. Assuming any necessity
to kill anybody there was no greater necessity for ki8lling the boy than any of the
other three of them.

Held: How far the conservation of a man’s life own life is in all cases and under all
circumstances an absolute, unqualified and paramount duty. We are dealing with a
case of private4 homicide, not once imposed upon men in the service of their
Sovereign and in the defence of their country. It is admitted that the deliberate
killing of this unoffending and unresisting boy was clearly murder, unless the
killing can be justified by some well-recognized excuse admitted by the law. It is
further admitted that there was in this case no such excuse, unless the killing was
justified by necessity.
But the temptation to the act which existed here was not just what the law has ever
called necessity..,. To preserve one’s life is generally speaking a duty, but it may
be the plainest and the highest duty to sacrifice it.

It is not correct to say that there is an absolute or unqualified necessity to preserve

one’s life…It is not needful to point out the awful danger of admitting the principle
which has been contended for. Who is to be the judge of this sort of necessity? By
what measure is the comparative value of lives to be measured? Is it to be strength,
or intellect, or what? It is plain that the principle leaves to him who is to profit by it
to determine the necessity which will justify him in deliberately taking another’s
life to save his own. In this case the weakest, the youngest, the most unresisting
was chosen. Was it more necessary to kill him than one of the grown men? The
answer must be ‘no’ It is not suggested that in this particular case the deeds were
devilish. But it is quite plain that such a principle once admitted might be made the
legal cloak for unbridled passion and atrocious crime. Hence the case is clearly a
case of willful murder of the hapless boy and does not support the doctrine of
necessity.

However, their sentence was later commuted to six months imprisonment.

In United States v Holmes it was held that “Necessity does not justify
indiscriminate throwing of passengers overboard to save sinking boat”(Circuit
Court, Pennsylvania-United States-1842) it was further held in this case that
”Where the ship is in danger of sinking, but all sustenance is exhausted, and the
sacrifice of one person is necessary to appease the hunger of others, the selection is
by lot. This mode is resorted to as the fairest mode and in some sort, as an appeal
to God for selection of the victim. The judge further felt that if lots are drawn and
the victim resists’ force’ May be employed to coerce submission’.

R v Quayle and other (Attorney General’s reference No. 2 of 2004 as per

Lord Justice Mance ) facts: The defendants three in number who were
convicted by the trial court for committing offences contrary in the Misuse of
Drugs Act, 1971 contended in appeal inter alia, that their cultivation or preparation,
use and p[possession of Cannabis had been excusable in law, since they genuinely
and reasonably believed that those activities had been necessary to avoid them
suffering serious injury or pain.

The defendants in the fourth appeal, the proprietor of a clinic, whose customers
suffered from debilitating diseases(heat debilitates which-makes people weak) and
his courier, who had imported cannabis which was an offence under the customs
And Excise Management Act 1979 contended that a defence of necessity is
admissible since they had acted in the interests of others towards whom thy had
reasonably regarded themselves as responsible and why they had genuinely and
reasonably feared would suffer serious pain and or injury if they did not receive the
cannabis imported.

Dismissing the appeal the Court of Criminal

Appeal held that the common law defence of necessity by extraneous
circumstances was not available where the role would be to legitimize conduct
which was contrary to the clear legislative policy and scheme adopted in relation to
controlled drugs. Appeal was dismissed.

London Borough of Southwark v Williams- facts:- The defendants, two

homeless families, were unable to obtain housing. With the help of squatters
association, they made an orderly entry into a house owned by the borough
council. The council obtained an order for p0ossession. The defendants relied inter
alia on the defence of necessity.

Held: The doctrine of necessity so enunciated must how ever be carefully

circumscribed. Else necessity would open the door to many an excuse. It was for
this reason it was not admitted in the case of Dudley and Stephens…,They were
held guilty of murder. Similarly when a man who is starving enters a house and
takes food in order to keep himself alive, the law does not admit the defence of
necessity. It holds them guilty of Larceny.

The reason is because, if hunger were once allowed to be an excuse for stealing, it
would open a way through which all kinds of disorder and lawlessness would pass.
So here, if homelessness were once admitted as a defence to trespass , no one’s
house could be safe. Necessity would open the door which no man could
slur…The plea would be an excuse for all sorts of wrongdoing. So the courts must
for the sake of law and order take a firm stand. They must refuse to admit the plea
of necessity to the hungry and the homeless and trust that their distress will be
relieved by the charitable and the good. Appeal got dismissed.

In R v Laughman a 19812 Australian case, it was held by the Australian Supreme

Court that “Necessity does not justify escape from prison in apprehension of
danger to life-Conviction upheld-

The following principles of Doctrine of Necessity were laid down by the Australia
supremecourt in this case:
i) The law recognizes the defense of necessity.

ii) The defense of necessity involves the following elements.

a) The criminal act must have been done only to avoid certain consequences which
would have inflicted irreparable evil upon the accused or upon whom he was
bound to protect.

b) The accused must honestly believe, on reasonable grounds that he was placed in
a situation of imminent peril.

c) The acts done to avoid peril must not be out of proportion to the peril to be
avoided.

d) The harm to be4 justified must have been committed under the pressure either of
p0hysical forces or exerted by some human agency so that an urgent situation of
imminent peril has been created.

e) The accused must have acted with the intention of avoiding a greater harm or so
as to have made possible the preservation of at least an equal value.

f) There was open to the accused no alternative other than that adopted by him to
avoid greater harm or to conserve the value.

g) The doctrine so enunciated must however be carefully circumscribed. Else

necessity would open the door to many an excuse. The accused must honestly
believe on reasonable grounds that he was placed in a situation of imminent peril.
The test is would a reasonable man in the position of the accused have considered
that he had any alternative to doing what he did to avoid peril?

h) Self-defence, is not capable of being g brought within the general description of

a defence of necessity, is at least analogous to it, but in comparing the kind of
necessity which require self-defence with the necessity which require escape from
prison there is of course, an essential difference in that in the former the accused
will always or almost always attack the person threatening him whereas in a case
where a prisoner feels necessity as a justification for escaping, the criminal act
which he commits is not directed to the person making the threat.
Let us examine some Indian cases regarding the doctrine of necessity.

Dhania Daji v Emperor (1868)-Facts- The accused was a toddy tapper. He

observed that toddy was brewing stolen from the trees regularly. To prevent it, he
poisoned toddy in some of the trees. He sold toddy from other trees. However, b y
mistake the poisoned toddy was mixed with other toddy, and some of the
consumers were injured and one of them had died. He was prosecuted. He took the
plea of Section 81.

The Privy Council did not accept the contention of the just necessity, as mixing
poison was done by the accused inte4ntionally and also with the knowledge that it
would cause grave danger to the people. The accused was punished under section
328.

Gopal Naidu v State (10922)46 Mad 605-Brief Facts: The accused was a rich
person in a village3. He drank and created public nuisance and also grave danger to
the public. The village Magistrate arrested him. The accused filed a case against
the village Magistrate.

The court upheld the act of villager Magistrate as it was necessary to protect the
people from the grave danger of the drunken accused.
Bibliography:

1.Pillai,PSA,Criminal Law

2.Jeroma hall,Principles of criminal Law.

3.Ratan Lal and Dhiraj Law,IPC

4.K.D.Gaur,Criminal Law cases and materials

5.Dr.HS Gaur, Penal Law of india,Law publishers , Allahabad