File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

General Exceptions Under Law Of Crime. Section 76 to 106 Of Indian Penal Code

Chapter IV of the Indian Penal Code deals with the general exceptions to criminal liability. There are various kinds of acts (exceptions) done under the circumstances mentioned in Secs. 76 to 106 which will not amount to offences under the Code.

These exceptions are:

  1. Mistake of fact (Secs. 76, 79).
  2. Judicial acts (Secs. 77-78).
  3. Accident (Sec. 80).
  4. Absence of criminal intention (Secs. 81-86, 92-94).
  5. Act done by consent (Secs. 87-91).
  6. Trifling act (Sec. 95).
  7. Private defence (Secs. 96-106).


The onus of proving exceptions lies on the accused that has to prove the circumstances bringing the case within any of the general exceptions. The court shall presume the absence of such circumstances. The prosecution has to prove the guilt of the accused.

Thus, A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A. It may be noted that unlike the prosecution, which has to prove the charge beyond a reasonable doubt, the accused has to show that preponderance of probabilities is in favour of his plea.

[I] Secs. 76 and 79: Mistake of Fact

Mistake of fact is sometimes a good defence. Sec. 76 lays down that nothing is an offence which is done by a person, who is, or who by reason of a mistake of fact and not by reason of mistake of law, in good faith, believes himself to be bound by law to do so.

Illustrations:

  1. A, a soldier, fires on a mob by the order of his superior officer in conformity with the commands of the law. A has committed no offence.
  2. A, an officer of a Court of Justice, being ordered by that court to arrest Y, and after due inquiry, believing Z to be Y, arrests Z. A has committed no offence.

Mistake is a slip made, not by design, but by mischance. Under English common law also, an honest and reasonable belief in the existence of circumstances, which would have made that act an innocent act, has always been a valid defence. An honest and reasonable mistake stands, in fact, on the same footing as absence of the reasoning faculty, as infancy or lunacy (Tolson's case, 1889).

Ignorance of fact is excusable (Ignorantia facti)

Mere forgetfulness is not mistake. Mistake of fact implies mistake as to true identities or mistake in sensory perceptions such as temporary distortion of imagination. Thus, in Tolson's case, the accused wife was convicted of bigamy. It was held that as at the time of second marriage she bona fide believed her husband to be dead, her conviction was wrong.

When mistake of fact is no defence

Mistake of fact is no defence if the fact itself is illegal. One cannot do an illegal act (e.g. selling adulterated foodstuffs) and then plead ignorance of a fact. Thus, a person cannot by mistake of fact, shoot X and then plead in defence that he did not intend to kill X at all, but mistaken him for Y, whom he wanted to kill.

Similarly, taking an unmarried girl under the age of 16 years out of possession and against the will of her father was held not to be a good defence to an indictment for abduction because the accused intended to do and did a wrongful or immoral act, and not an innocent act [R v. Princes (1875) LR 2 CCR 154]. However, where A sees a young girl about to jump into the river; believing that the girl is about to commit suicide A grapples with her and drags her away, he is not guilty of molestation although it may turn out that the girl was actually doing sun worship.
The maxim respondeat superior (act done by the order of a superior) has no application in criminal law.

The order of a superior to an inferior servant to commit an offence is not a valid defence. Thus, where under order of their naik, three sepoys of a regiment fired a shot at a mob which, otherwise, was by no means violent, it was held that they were guilty of culpable homicide not amounting to murder, and they were not bound to obey an illegal order. If commands are obviously illegal, an inferior would be justified in refusing to execute such commands [Gurdit Singh (1812) P.R. 16].

One cannot plead ignorance of fact when responsible inquiry' would have elicited the true facts. For example, when a person marries on an honest belief that his previous marriage has been dissolved by a decree of divorce whereas the divorce decree has not been granted, he will be guilty of bigamy. He should have made responsible inquiries about dissolution of previous marriage.

Sec. 79

According to Sec. 79, nothing is an offence if done by a person who in good faith believes himself to be justified by law in doing that act. The distinction between Sec. 76 and Sec. 79 is that in the former, a person is assumed to be bound, and in the latter to be justified by law. The distinction is between a real or supposed legal obligation and a real or supposed legal justification in doing the act. Under both the sections, there is a bona fide intention to advance the law (mens rea is absent in both).

Illustration
A sees Z commit what appears to be murder. He in good faith seizes Z, to hand him over to the police. A has committed no offence though it may turn out that Z was acting in self-defence.
The distinction between Sec. 76 and Sec. 79 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/compulsion and a real or supposed legal justification in doing the particular act. However, under both the sections, there is a bona fide intention to advance the law (mens rea is absent in both).

Where A mistook in good faith another's umbrella to be his own and took the defence that at the time of taking the umbrella he was intoxicated and erroneously believed that the umbrella was his own, the defence is tenable (Sec. 76). Where A shoots at B (A's inmate) who enters his room at night under circumstances which make A to believe in good faith that B is a burglar, it was held that A will not be liable for shooting B and will be entitled to claim defence of justifiable mistake under Sec. 79.

Some cases coming under Sec. 79 are:

In Chirangi v. State (1952 CrLJ 1212), the accused, in a momentary delusion, mistook his own son as a tiger and killed him. In Wary am Singh v. Emperor (AIR 1962 Lah 554), the accused, in a night, mistook a living human being as a ghost and killed him. A similar act was done by the accused in State of Orissa v. Ram Bahadur Thapa (AIR 1961 Ori 161).

[II] Secs. 77-78: Judicial Acts

The second general exception relates to act of judges and courts. According to Sec. 77, any act done by a judge while acting judicially, which he in good faith believes to be given to him by law, is no offence. Thus, a judge who sentences a prisoner to death (even wrongly) is not himself liable to be hanged for having caused somebody's death.

Similarly, according to Sec. 78, an act done pursuant to the judgment or order of a court of justice (when the person doing the act in good faith believes that the court has jurisdiction) is no offence. If it were to be an offence the hangman who hangs the prisoner pursuant to the order of the judge, would also have to be hanged.

It may be noted that under Sec. 78, the officer is protected in carrying out an order of a court, which may have no jurisdiction at all, whereas as under Sec. 77, the judge must be acting within his jurisdiction to be protected by it. Thus, mistake of law' can be pleaded as a defence under Sec. 78.

[III] Sec. 80: Accident

The third general exception relates to acts committed by accident. Sec. 80 lays down that nothing is an offence, which is done by accident or misfortune:

  1. Without criminal intention or knowledge.
  2. In the doing of a lawful act in a lawful manner by lawful means.
  3. With proper care and caution.


Illustration
A is at work with a hatchet; the head flies off and kills a man who is standing by. Here, if there was no want of proper caution on A's part, his act is excusable and not an offence.
An accident is something that happens out of the ordinary course of things. The idea of something fortuitous and unexpected is involved in the word accident'. An injury is said to be accidentally caused whenever it is neither wilfully nor negligently caused. Thus, in a game of cricket a ball strikes a man on the head and he dies. Such a death is accidental. Similar is the case where two wrestlers arranged bout in the course of which the deceased fell and broke his skull.

Some other illustrations are:
A takes up a gun, and without examining whether it is loaded or not, points it in sport at B, and pulls the trigger. B dies. Such a death is not accidental, as there was want of proper care and caution. If A has reason to believe that the gun was not loaded, the death would have been accidental. It may be noted that shooting with an unlicensed gun will not debar an accused from claiming the benefit of Sec. 80. A shoots at a bird in B's house in order to steal it, and kills B. A is liable, as his act was not lawful. To steal is not a lawful act.


[IV] Secs. 81-86 and 92-94: Absence of Criminal Intent

Criminal intention means the purpose or design of doing an act forbidden by criminal law without just cause or excuse. Now, there are certain acts, which appear to be criminal, but are done without any criminal intent. It is but fair that such acts should not be penalized, which lack mens rea.

There are seven such acts mentioned in Secs. 81-86 and 92-94:

  1. Act done to avoid other harm (Sec. 81).
  2. Act of a child (Secs. 82-83).
  3. Act of lunatic (Sec. 84).
  4. Act of an intoxicated person (Secs. 85-86).
  5. Bona fide act for another's benefit (Sec. 92).
  6. Communication made in good faith (Sec. 93).
  7. Act done under compulsion or threat (Sec. 94).


(i) Sec. 81: Act Done to Avoid Other Harm

An act done with the knowledge that it is likely to cause harm, but done in good faith and without any criminal intention to cause harm, for the purpose of preventing or avoiding harm to person or property is not an offence.

For instance, A, in a great fire, pulls down houses in order to prevent the conflagration from spreading, or where the sailors threw passengers overboard to lighten a boat.

The principle upon which Sec. 81 is based is that when in a sudden and extreme emergency, one or the other of two evils is inevitable, it is lawful so to direct events so that the smaller evil only shall occur. It is a question of fact in each case whether such circumstances exist.

However, a man cannot intentionally commit a crime in order to avoid other greater harm. In a case, a thief was in the habit of stealing the toddy from pots. The accused placed poison in his toddy pots to detect the thief. The toddy was drunk by, and caused injury to, some soldiers who purchased it from an unknown vendor. It was held that Sec. 81 was of no defence to the accused (Emperor v. Dhania Daji, 1868). Similarly, a person dying of starvation cannot commit theft of food and plead that he did so to avoid harm, viz. his own death, because he intentionally committed the offence of theft.

Likewise, in Dudley v. Stephens (1884) 14 Q. B. D. 173, it was held that a man, who, in order to save his life from starvation, kills another for the purpose of feeding on his flesh, is guilty of murder. The doctrine of self-preservation is of no avail in such cases.

(ii) Secs. 82-83: Act of Child

Under the Indian Penal Code, there is an absolute incapacity for crime under seven years of age. According to Sec. 82, an act of a child under seven years is no offence. It is to be noted that this immunity is not confined to offences under the Code only, but extends to offences under any special or local law.

An infant is, by presumption of law, doli incapax i.e. not endowed with any discretion so as to distinguish right from wrong, thus, the question of criminal intention does not arise. Where persons get crimes committed through children below 7 years, they will be held liable while the child will be exempted.

According to Sec. 83, acts done by children above seven and below 12 will be protected if it is shown that the child in question has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion. It is to be noted that there is complete liability to punishment after twelve years of age.

In a case, a girl of 10 years married again during the lifetime of her husband, the marriage being negotiated and caused to be performed by her mother. Here, if the girl was of sufficient maturity of understanding, she would be liable for bigamy. Similar would be the case where a child of 9 years of age stole a gold necklace and sold it to B for half a rupee only. The boy would be liable if he was proved to be of sufficient maturity of understanding. The maxim malitia supplet oetatem (malice supplies defect of years) applies to Sec. 83. The circumstances of a case may disclose such a degree of malice as to justify the maxim.

(iii) Sec. 84: Act of an Insane Person

Criminal law gives complete protection to a lunatic. Sec. 84 lays down that nothing is an offence which is done by a person, who owing to unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is wrong or contrary to law. The legal insanity contemplated by this section is different from the medical insanity.

No culpability can be fastened upon insane persons as they have no free will (Furiosi nulla voluntas est).
The words unsoundness of mind include following kinds of persons:

  • Idiot: one made non compos mentis by illness (temporary failure).
  • A lunatic or a mad man (mental disorder).
  • A person in unconscious state, if proved (e.g. sleep walking or somnambulism).
  • An intoxicated person.


The following tests or principles are important to determine the insanity of a person:

  1. It must be shown that the accused was of unsound mind at the time of the commission of the offence. If he was not insane at that time but became insane later, he cannot take the benefit of Sec. 84.
     
  2. History of previous insanity, the behaviour of the accused on the day of occurrence, the state of his mind before and after the commission of the offence is relevant factors to be taken into consideration. For instance, evidence of pre-meditation, secrecy, motive, an attempt to evade/ resist arrest, confession given on the very next day, etc. may make the defence of insanity untenable (Queen-Empress v. Gedka Gowala AIR 1937 Pat. 333).
     
  3. What is protected by Sec. 84 is naturally impaired cognitive faculties of mind' i.e. inherent or organic incapacity (incapability). What is not protected is a wrong or erroneous belief (may be on account of perverted illusion), or uncontrollable impulses, or moral insanity' or weak, defective intellect, or eccentric behaviour. When cognitive faculties not impaired, and only will and emotions are affected, insane impulses are not a defence [Queen-Empress v. K.N. Shah (1896)].
     
  4. To claim protection under Sec. 84, it is not that person should not know an act to be right or wrong, but that he should be incapable of knowing whether the act done by him is right or wrong. When the guiding light (i.e. capacity to distinguish between right and wrong) is found to be still flickering, a man cannot be protected under Sec. 84 (Lakshmi v. State AIR 1959 All 534).
     
  5. Akin to lunacy, is what is known as insane delusion, which is a borderline case. Delusions are false beliefs which may be full or partial. Whether a person, who under an insane delusion, commits an offence in consequence thereof is to be excused depends upon the nature of the delusion. The law as to insane delusions is well discussed in McNaughtens case (1843).

    In A. Ahmed v. King (AIR 1949 Cal 182), the accused killed his own son of 5 years by thrusting a knife in his throat under the delusion and in pursuance of a command by someone in paradise, given to him in his dream. He was held to be protected under Sec. 84.

    Example- A was suffering under an insane delusion that X and Y were persecuting him. He bought a knife in order to revenge himself on them, and that very evening he went to their club and stabbed them dead. The fact that he actually purchased a knife as also he went to their club, shows that his intention was to kill. Thus, A would be guilty of murder.
     
  6. In a case, where a father and his relatives sacrificed a 4-year old son to propitiate a deity, the Supreme Court held that this does not, by itself, prove insanity (Paras Ram v. State of Punjab, 1981).
     
  7. Where acts of violence are committed by a person for no apparent motive, killing his own kith and kin towards whom he had all along been affectionate, and where the person has a previous history of lunacy, the benefit of doubt goes in his favour.
     
  8. Persons who are occasionally possessed by spirits and those who, being in fits of delirium, very often conjured up visions/images are given the benefit of Sec. 84. However, in cases of delirium tremens -a kind of madness brought about by habitual excessive liquor or illness, if the patient knew as to what he was doing, he would be criminally liable.


(iv) Secs. 85-86: Act of an Intoxicated Person

Drunkenness is a species of madness for which the man is to blame. If a man chooses to get drunk, it is his own voluntary act; it is very different from madness, which is not caused by any act of the person.

Qui Pecat Ebrius Luat Sobrius: Let him who sins when drunk be punished when sober. However, Secs. 85 and 86 protect an intoxicated person provided he got intoxicated by mistake (e.g. took a wrong medicine) or by fraud or force.

Sec. 85 lays down that nothing is an offence which is done by a person, who owing to intoxication is incapable of knowing the nature of the act, or that what he is doing is wrong or contrary to law, provided that the thing which intoxicated him was administered without his knowledge or against his will. Thus, the test of drunkenness is the capacity to form an intention' of committing the offence; in the case of insanity, the test is capacity to knew' the nature of one's act. However, insanity produced by drunkenness is a defence (under Sec. 84).

Sec. 86 states the presumption for certain offences committed by intoxicated persons. Thus, if an act is an offence only when done with a particular intention or knowledge, and such an act is committed by an intoxicated person, he will be presumed to have knowledge requisite for the offence, unless he can show that he was intoxicated without his knowledge or against his will. It may be noted that there is no presumption as regards his intention.

The intoxication may be caused by liquor, medicines, bhang, ganja, etc. Where the accused drank liquor at the persuasion of his father to alleviate his pain, it cannot be said that administration of liquor to him was against his will. Thus, he could not claim any benefit under Sec. 85.

In Basdev v. State of Pepsu (AIR 1956 SC 488), it was held that drunkenness is ordinarily neither a defence nor an excuse for crime'. By law, an intoxicated person is presumed to have the same knowledge as a sober man. However, the intention must be gathered from the circumstances of the case paying due regard to the degree of intoxication.

When the accused's mind was so affected by drink that he more readily gave way to some violent passion, it could not be said that the accused did not intend the natural consequences of his acts. To claim benefit under Sec. 86, the accused has to be so drunk that he was incapable of forming the intent [Director of Public Prosecutions v. Beard (1920) A.C. 479].

Test of drunkenness

The test to apply in cases of drunkenness is not the test applied in cases of insanity viz., whether the accused person knew what he was doing was wrong or was able to appreciate the nature and quality of his act. However, insanity produced by drunkenness is a defence (under Sec. 84).

The correct test is whether by reason of drunkenness, the accused was incapable of forming an intention of committing the offence. A man is taken to intend the natural consequences of his acts. This presumption may be rebutted in the case of a drunken man by showing that he did not know what he was doing was dangerous, or incapable of forming the specific intent essential to constitute the crime [Director of Public Prosecution v. Beard (1920) AC 479]. Thus, the accused could rebut this presumption by giving such evidence of drunkenness as might have affected his faculty of understanding to form the requisite intent (Dasa Kandha v. State of Orissa, 1976 Cr LJ 2010).

Sec. 86 says that a person voluntarily intoxicated will be deemed to have the same knowledge as he would have had if he had not been intoxicated. The section does not say that the accused shall be liable to be dealt with as if he had the same intention as might have been presumed if he had not been intoxicated. Therefore, there is no presumption under Sec. 86 with regard to intention' (the presumption of knowledge alone is provided). In such cases, his intention would have to be gathered from the facts and circumstances of every individual case, having due regard to the degree of intoxication.

If the existence of a specific intention is essential to the commission of a crime the fact that the offender was drunk, when he did the act, which if coupled with that intention would constitute such crime, should be taken into account in deciding whether he had that intention (Sir James Stephen).

Voluntary drunkenness is an excuse only as regards intention so that it is a complete excuse in crimes requiring the presence of an intention to complete a crime. But voluntary drunkenness is no excuse for a crime which requires the mere presence of knowledge as distinct from intention If a man was out of his mind altogether at the time of commission of crime, it would not be possible to fix him

(v) Sec. 92: Bona fide Act for Another's Benefit

Section 92 lays down that nothing is an offence by reason of any harm which it may cause to the person for whose benefit it is done, in good faith, and even without that person's consent, under emergent circumstances. For instance, an immediate operation performed by a surgeon on an accidental victim; or where a person drops a child from the housetop (the house being on fire) knowing it to be likely that the fall may kill the child, but not intending to kill the child, and intending, in good faith, child's benefit.

Example
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 bullet give Z a mortal wound. A has committed no offence.

(vi) Sec. 93: Communication made in Good Faith

Section 93 lays down that any communication made in good faith to a person for such person's benefit is no offence, even though such communication may cause harm to such person. For instance, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient dies under shock. The surgeon has committed no offence, though he knew that it to be likely that the communication might cause the patient's death.

(vii) Sec. 94: Act Done under Compulsion or Threat

As per Sec. 94, offences committed under compulsion or threat by a person so compelled or threatened will be excused if the threat is to cause instant death of such person. However, a person so put under threat cannot cause murder or an offence against the State punishable with death (e.g. treason) to avail benefit of Sec. 94. Further, the person doing the act did not of his own accord, or from a reasonable apprehension of harm to himself short of instant death place himself under such constraint.

A person who of his own accord, or by reason of a threat of being beaten, joins a gang of dacoits, is not entitled to the benefit of Sec. 94. However, a person seized by a gang of dacoits and forced by threat of instant death to do anything which is an offence by law (e.g. to break open the door of a house) is entitled to the benefit of Sec. 94.

It is important to note that merely threatening with future death or any other injury short of death will not be good excuse. The threat should be to cause instant death. Thus, if A approaches B with a stick in his hand and threatens to beat B if the latter does not go and cause a grievous hurt to Z; B cannot plead defence under Sec. 94.

However, if A had a loaded revolver or a dagger in his hand, and held it at B's throat, causing B to believe that he would be instantly killed if he did not break Z's bones, this would be a good defence. Where certain witnesses gave false evidence, and then pleaded that they were threatened by the police to do so, it was held that they were guilty as there was no proof of instant death.

As noted above, a person under threat will not be excused under Sec. 94 if he commits a murder of another person. Sec. 94 seems to enjoin that it is better that he should die under such circumstances, rather than commit murder. However, the offence of attempt' to commit murder or abetment' of murder would be excused if committed under threat of instant death.

[V] Secs. 87-91: Act Done by Consent
Sections 87-91 lays down the law as to how far an act done by consent will be excused in law. It is important to note that consent' plays a very important role in criminal law. Its presence or absence often makes a difference between innocence and crime (viz. an act of sexual intercourse may become rape).

Section 90 lays down what is not consent, viz.

  1. A consent given by a person under fear of injury or misconception of fact, or
  2. A consent 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
  3. A person under 12 years of age.

It is to be noted that consent' and submission' are not the same thing. Every consent involves a submission, but not vice versa. Thus, mere submission by a person who does not know the nature of an act is not consent.

Sections 87-91 lay down that if certain acts are done with the consent of the victim, they will not amount to offences:

  1. Sec. 87 lays down that an act not intended or known to be likely to cause death or grievous hurt, which act causes any harm to a person above 18 years of age who has given (express or implied) consent to suffer it is not an offence.

    This section covers injuries which may result whilst engaging in games and sports. It proceeds upon the maxim volenti non fit injuria; he who consents, cannot complain. However, a person is not permitted to give his consent to anything likely to cause his own death or grievous hurt. It only justifies any harm short of grievous hurt.
     
  2. Sec. 88 similarly lays down that an act done in good faith for the victim's benefit with the victim's consent is not an offence. This section protects surgeons and surgical operations as also reasonable acts of teachers (viz. corporal punishment to a pupil to enforce discipline). However, persons who are not qualified as medical practitioners (quacks) are not protected.
     
  3. Sec. 89 similarly protects act done in good faith for the benefit of child or insane person or by consent of guardian.
     
  4. Sec. 92 clarifies that mere pecuniary benefits are not covered by the term benefit' appearing in Secs. 88 and 89.
     
  5. Sec. 91 lays down that the exceptions contained in Secs. 87-89 does not extend to acts which are offences independently of any harm which may cause to the person giving the consent.

Thus, causing miscarriage (unless caused in good faith for the purpose of saving the life of the woman) is an independent offence, and the consent of the woman or of her guardian to the causing of such miscarriage does not justify the act.


[VI] Sec. 95: Trifling Acts/ Acts Causing Slight Harm

The sixth general exception is laid down in Sec. 95. The maxim de minimis non curat lex (the law takes no account of trifles) is the foundation of the section: If a person causes any harm (even with an intention or knowledge to do so), and that harm is so slight that no person of ordinary sense and temper would complain of such harm, it is no offence. Thus, both accidental as well as deliberate acts are covered by the section. Further, the harm covers actual physical injury also.

Examples of such trifling acts include- picking up a wafer from the another's plate; lighting one's own cigar form a match-box belonging to the other without his permission; a blow given across the chest with an umbrella by a dismissed-policeman to the D.S.P. as his application to reconsider his case was rejected. Thus, this section covers those cases which fall within the letter of the penal law, but are not within its spirit.

[VII] Secs. 96-106: Right of Private Defence

The right of private defence is the right to protect one's own person and property against the unlawful aggression of others. Sec. 96 lays down that nothing is an offence which is done in the exercise of the right of private defence. It is a right inherent in man; it is the first duty of man to help himself. The right must be fostered in the citizens of every free country.


The doctrine of private defence is founded on the following expediencies:

  1. A person, whose life is threatened by a grave danger, need not wait for the State aid, unless such aid is available.
     
  2. The right of private defence is protective or preventive and not punitive (i.e. not meant for punishing the aggressor); however, punitive measures may result.
     
  3. The right cannot be availed of for the sake of self-gratification or to satisfy one's malicious or sadistic urges. The act of private defence should not be deliberate, or retaliation for past injury.
     
  4. The right must be exercised when there is
    (a) Real and immediate threat (not imaginary and remote), and
    (b) A reasonable apprehension of such threat. A fear that one might or will be attacked in near future will not justify the exercise of this right.
     
  5. The right commences as soon as reasonable apprehension of danger to the body arises from an attempt to or threat to commit the offence, though the offence may not have been committed, and such right continues so long as such apprehension continues. It is incorrect to say that a person could claim the right to use force after he had sustained a serious injury. Further, if the apprehension is real and reasonable, it makes no difference that it is mistaken.
     
  6. The protective measures employed must be relative to the danger ahead, i.e. violence used must be proportionate to the injury or threat to be averted, and must not exceed such limits. However, in such situations it cannot be expected of a person to minutely calculate the correct proportion of force to be used in defence (Amjad Khan v. State AIR 1952 SC 165).
     
  7. The right of defence ends with the necessity for it. Thus, the person exercising such right need not chase the fleeing attacker and then beat him (State of U.P. v. Ram Swarup AIR 1974 SC 1570)
     
  8. The law does not require that a person should not exercise his right to self- defence if by running away he can avoid injury. He should exercise it.
     
  9. The law does not require that a person placed in such circumstances should weigh the arguments for and against an attack in golden scales.
     
  10. The aggressor (i.e. one who goes to beat other) cannot claim the right to self-defence (Deo Narain v. State of U.P. AIR 1973 SC 473)
     
  11. There cannot be private defence against private defence. There is no right of private defence under the Code against any act which is not in itself an offence under it (an act done in exercise of the right of private defence is not an offence).
     
  12. In a case of free fight, no right of private defence is available to either party.
     
  13. Even if an accused does not plead self-defence, it is open to the court to consider such plea if the same arises from material on record.


Private Defence of Body

Section 97 lays down that every person has a right to defend his own body or that of any other person against any offence affecting the human body. Thus, even a stranger may defend the person or property of another person. While under the English law, there must be some kind of existing relationship (e.g. master and servant, husband and wife).

Section 98 provides that for the purpose of exercising the right of private defence, the physical or mental capacity of the attacker (whether with or without mens rea, e.g. a lunatic, a minor, an intoxicated person or a person acting under misconception of fact) is no bar. Thus, if A, a lunatic, attempts to kill B, A is guilty of no offence, but B has the same right of private defence which he would have if A were sane.

Section 99 lays down the general restrictions on the right of private defence:

  1. There is no right of private defence against an act which does not reasonably cause the apprehension of death or grievous hurt, if done by a public servant' acting in good faith under colour of his office, though that act may not be strictly justifiable by law.

    However, a person is not deprived of the right of defence against an act of public servant, unless he knows or has reason to believe that the attacker is a public servant or is acting under the direction of a public servant (Explanations 1 and 2 to Sec. 99).

    There is a difference between acts which are wholly illegal (or ultra vires) and the acts which may not be strictly justifiable by law (irregular acts). Where the police had illegally arrested a person, and certain villagers with a view to rescuing that person launched attack on the police but only after a constable had fired at them, it was held that the villagers had acted in exercise of right of private defence as the act of firing caused reasonable apprehension of death/grievous hurt in their minds. On the other hand, if a police officer, acting bona fide under colour of his office, arrests a person without authority, the arrestee has no right of self-defence against the officer.
     
  2. There is no right of defence in cases in which there is time to have recourse to the protection of public authorities.
    However, this does not mean that a person must run away to have recourse to the protection of public authorities when he is attacked, instead of protecting himself.
     
  3. The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

Section 100 lays down six acts of aggression, so serious in nature, that the law gives full authority to the defender even to cause the death of assailant. The six cases of assault are: reasonable apprehension of death, or of grievous hurt, assault with the intention of committing rape, or of gratifying unnatural lust, or of kidnapping and abduction, or of wrongfully confining a person. In other cases, the defender may cause any harm except death (Sec. 101).

In the case of reasonable apprehension of death, if the defender be so situated that he cannot exercise the right without risk of harm to an innocent person he may even run that risk (Sec. 106) (viz. a person attacked by a mob; he cannot fire without risk of harming young children who are mingled with the mob).

Section 102 lays down that the right of self-defence commences as soon as a reasonable apprehension of danger to the body arises and continues as long as such apprehension continues (even though the offence may not have been committed).

Thus, where the accused continued to assault the deceased after he had fallen down and was rendered harmless, the right of private defence would not be available. Similarly, where a number of persons strangled a thief and subjected him to gross maltreatment when he was fully in their power, the right of private defence was negatived.

Private Defence of Property

Every person has the right to defend the property (whether movable or immovable) of himself or of any other person:

  1. Against theft, robbery, mischief or criminal trespass, or any act which is an attempt to commit theft, robbery, etc. (Sec. 97); and
  2. Against the act of a lunatic, a minor, or an intoxicated person or a person acting under a misconception of fact (Sec. 98).

The right of private defence of property is also subject to limitations laid down in Sec. 99.

Section 105 lays down that the right commences when a reasonable apprehension of danger to the property commences, and the right continues:

  1. Against theft, till offender has affected his retreat with the property, or the assistance of the public authorities is obtained, or the property has been recovered;
  2. Against robbery, as long as the offender causes (or attempts to cause) to any person death or hurt or wrongful restraint, or the fear of instant death/hurt/ personal restraint continues;
  3. Against criminal trespass or mischief, as long as the offender continues in the commission of such offence; or
  4. Against house-breaking by night, as long as the house-trespass continues (thus, where a person followed a thief and killed him in the open, after house-trespass has ceased could not plead the right of private defence).


Section 103 enumerates the cases in which the right extends to justifiably causing the death of the wrong-doer, viz.

  1. Robbery
  2. House breaking by night.
  3. Mischief by fire to any building, tent or vessel used as human dwelling or as a place for the custody of property.
  4. Theft, mischief or house trespass under the circumstances causing reasonable apprehension of death/grievous hurt. In other cases, the right extends to any harm other than death (Sec. 104)

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers



Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


LawArticles

Section 482 CrPc - Quashing Of FIR: Guid...

Titile

The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of th...

Whether Caveat Application is legally pe...

Titile

Whether in a criminal proceeding a Caveat Application is legally permissible to be filed as pro...

How To File For Mutual Divorce In Delhi

Titile

How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Copyright: An important element of Intel...

Titile

The Intellectual Property Rights (IPR) has its own economic value when it puts into any market ...

The Factories Act,1948

Titile

There has been rise of large scale factory/ industry in India in the later half of nineteenth ce...

Law of Writs In Indian Constitution

Titile

Origin of Writ In common law, Writ is a formal written order issued by a body with administrati...

Lawyers Registration
Lawyers Membership - Get Clients Online


File caveat In Supreme Court Instantly