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General Exceptions of Indian Penal Code, 1860

The criminal law outlines different punishments for various crimes. But a person may not always be punished for a crime that he has committed. The Indian Penal Code, 1860 recognizes defences in Chapter IV under the heading, 'General Exceptions'. Sections 76 to 106 of the IPC cover these defences.

General Exceptions

Under the Indian Penal Code, a number of limitations with penal clauses have been created to avoid the need to repeat them, which have been waived by the sections of IPC in respect of criminal liability. The term 'offence' used in the context of general exceptions refers to an act which will be punishable under the Penal Code or any special or local law, only if it satisfies the conditions laid down in Section 40 of this code.

The general exceptions contained in Sections 76 to 106 have the effect of converting crime into not a crime. Their replication is ubiquitous. They apply to the definition of every offence contained in this code. The burden of proof is on the person who wants to take an advantage of a specific exception. Under the general exceptions, the following actions are exempted from criminal liability under the Indian Penal Code.
  1. The act done by a person who is believed to be bound by law in Section 76 or due to mistake of fact
  2. The act of a judge acting judicially in Section 77.
  3. Act falling under Section 81, which is likely to cause hijacking, but which is done without criminal intent and for the prevention of other abductions.
  4. Act of a child below 7 years of age in Section 82.
  5. In Section 83, the act of a child of immature understanding above 7 years but below 12 years of age.
  6. The act of a person of unsound mind in Section 84.
  7. The act of a person who is unable to reach a decision due to intoxication against his will in Section 85.
  8. In Section 86, an offence committed by a person who is intoxicated who have a special intent or knowledge as he would have had if he had not been intoxicated.
  9. Work done with consent in Section 87, which does not meant to cause death or grievous hurt
  10. In Section 88, an act done in good faith by consent for the benefit of a person, which does not have the intention of causing death.
  11. Work done in good faith by the guardian or with his consent in Section 89, for the benefit of the infant or insane person.
  12. Consent in Section 90, in relation to which it is known that it is given under fear or misconception.
  13. As per Section 91, such exceptional act which causes harm.
  14. Work done in good faith for the benefit of a person without consent in Section 92.
  15. Communication in Section 93, for the benefit of a person in good faith.
  16. In Section 94, the act for which someone has been forced by death threats.
  17. Section 95 has been done in the act of committing kidnapping.
  18. Sections 96 to 106 deal with acts done in private defence.

Burden of Proof

It is the fundamental rule of criminal jurisprudence that a person is innocent untill proved guilty. This means that there is always a presumption of innocence in favour of an accused and the burden of proving every aspect of the crime i.e. the actus reus, the mens rea, the causation, the motive is solely on the prosecution.

The standard of proof required is very high. The prosecution has to prove the guilt of the accused beyond reasonable doubt. However, Section 105 of the Indian Evidence Act, 1872, places the burden on the accused to prove that the case falls within one of the general exceptions.

It provides that 'the court shall presume the absence of such circumstances', which may bring the accused within the exceptions set out in chapter IV of the Indian Penal Code, 1860. It calls upon the accused to show that the Circumstances bringing the case within the exceptions are present, as the court cannot suo motu presume the existence of the circumstances.

Further, Section 103 of the Evidence Act provides that when a person wishes the court to believe in the existence of any particular fact, the burden of proof lies on the person who desires the court to believe in it, unless the law specifically provides that the burden lies on any other particular person.

Nature of the Provisions of General Exceptions

Chapter IV of the Indian Penal Code, 1860 captioned 'General Exceptions', comprising Sections 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 it is covered by any of the 'general exceptions' enumerated in the Chapter IV.

In other words, a wrong doer, 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 title 'general exceptions' is used to convey that these exceptions are available to all offences i.e. IPC as well as non-IPC.

Important Provisions of General Exceptions under IPC

Important provisions related to general exceptions are covered in Chapter IV under Sections 76 to 106 of IPC, Which are as follow:

Section 76 of the Act

This section deals with 'Act done by a person bound, or by mistake of fact believing himself bound, by law'.

As per the provisions of this section, 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 a mistake of law in good faith believes himself to be, bound by law to do it.

For example, 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.

Act of Judge when Acting Judicially (Section 77)

Nothing is an offence 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.

Act done Pursuant to the Judgment or Order of Court (Section 78)

Nothing which is done in pursuance of, or which is warranted by the judgment or order of, a Court of Justice, if done whilst such judgment or order remains in force, is an offence, notwithstanding the Court may have had no jurisdiction to pass such judgment or order, provided the person doing the act in good faith believes that the Court had such jurisdiction.

Section 79 of the Act

This section deals with 'Act done by a person justified, or by mistake of fact believing himself justified, by law'. As per the provisions of this section, nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it.

For example, A sees Z commit what appears to A to be a murder. A, in the exercise, to the best of his judgment exerted in good faith, of the power which the law gives to all persons of apprehending murderers in the fact, seizes Z, in order to bring Z before the proper authorities. A has committed no offence, though it may turn out that Z was acting in self-defence.

Accident in Doing a Lawful Act (Section 80)

Nothing is an offence 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.

For example, 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 the part of A, his act is excusable and not an offence.

Section 81 of the Act

This section deals with 'Act likely to cause harm, but done without criminal intent, and to prevent other harm'.

As per the provisions of this section, nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property. For example, A, in a great fire, pulls down houses in order to prevent the conflagration from spreading. He does this with the intention in good faith of saving human life or property. Here, if it be found that the harm to be prevented was of such a nature and so imminent as to excuse A's act, A is not guilty of the offence.

Act of a Child under Seven Years of Age (Section 82)

Nothing is an offence which is done by a child under seven years of age.

Section 83 of the Act

This section deals with 'Act of a child above seven and under twelve of immature understanding'.

As per the provisions of this section, nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.

Act of a Person of Unsound Mind (Section 84)

Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.

Section 85 of the Act

This section deals with 'Act of a person incapable of judgment by reason of intoxication caused against his will'. As per the provisions of this section, nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law, provided that the thing which intoxicated him was administered to him without his knowledge or against his will.

In case of

Mirza Ghani Baig v. State of Andhra Pradesh,

1997, it was held that:
“Voluntary drunkenness is no excuse for commission of a crime. So far as knowledge is concerned, the standard of test is same as in case of intention. The court must attribute to the intoxicated man the same knowledge as if he was quite sober unless he was besides his mind altogether at the time of incident”.

Section 86 of the Act

This section deals with 'Offence requiring a particular intent or knowledge committed by one who is intoxicated'. As per the provisions of this section, in cases, where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will.

In case of Mirza Ghani Baig v. State of Andhra Pradesh, 1997, it was held that the prosecution has to prove that inspite of drunkenness, the accused had intention to commit the act forbidden by law.

Sometimes intention on the part of the person who is drunk can also be assessed from the nature of weapon used in the commission of the offence. If a person uses a weapon which is not dangerous and the attack results if death, a malicious intention cannot be drawn against him even though drunkenness is no excuse.

Section 87 of the Act

This section deals with 'Act not intended and not known to be likely to cause death or grievous hurt, done by consent'.

As per the provisions of this section, nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above 18 years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm.

For example, A and Z agree to fence with each other for amusement. This agreement implies the consent of each to suffer any harm which, in the course of such fencing, may be caused without foul play; and if A, while playing fairly, hurts Z, A commits no offence.

Section 88 of the Act

This section deals with 'Act not intended to cause death, done by consent in good faith for person's benefit'.

As per the provisions of this section, nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied to suffer that harm, or to take the risk of that harm.

For example, A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under the painful complaint, but not intending to cause Z's death, and intending, in good faith, Z's benefit, performs that operation on Z, with Z's consent. A has committed no offence.

Section 89 of the Act

This section deals with 'Act done in good faith for benefit of child or insane person, by or by consent of guardian'.

As per the provisions of this section, nothing, which is done in good faith for the benefit of a person under twelve years of age, or of unsound mind, by or by consent, either express or implied, of the' guardian or other person having lawful charge of that person, is an offence by reason of any harm which it may cause, or be intended by the doer to cause or be known by the doer to be likely to cause to that person, provided:
  1. that this exception shall not extend to the intentional causing of death, or to the attempting to cause death;
  2. that this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity;
  3. that this exception shall not extend to the voluntary causing of grievous hurt, or to the attempting to cause grievous hurt, unless it be for the purpose of preventing death or grievous hurt, or the curing of any grievous disease or infirmity;
  4. that this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend.

For example, A, in good faith, for his child's benefit without his child's consent, has his child cut for the stone by a surgeon, knowing it to be likely that the operation will cause the child's death, but not intending to cause the child's death. A is within the exception in as much as his object was the cure of the child.

Section 90 of the Act

This section deals with 'Consent known to be given under fear or misconception'.
As per the provisions of this section, a consent is not such a consent as is intended by any section of this code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or unless the contrary appears from the context, if the consent is given by a person who is under 12 years of age.

Section 91 of the Act

This section deals with 'Exclusion of acts which are offences independently of harm caused'.

As per the provisions of this section, the exceptions in Sections 87, 88 and 89 do not extend to acts which are offences independently of any harm which they may cause, or be intended to cause, or be known to be likely to cause, to the person giving the consent, or on whose behalf the consent is given.

For example, causing miscarriage (unless caused in good faith for the purpose of saving the life of the woman) is an offence independently of any harm which it may cause or be intended to cause to the woman. Therefore, it is not an offence “by reason of such harm”; and the consent of the woman or of her guardian to the causing of such miscarriage does not justify the act.

Section 92 of the Act

This section deals with Act done in good faith for benefit of a person without consent.

As per the provisions of this section, nothing is an offence by reason of any harm which it may causes to a person for whose benefit it is done in good faith, even without that person's consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit, provided:
  1. that this exception shall not extend to the intentional causing of death or the attempting to cause death,
  2. that this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity;
  3. that this exception shall not extend to the voluntary causing of hurt, or to the attempting to cause hurt, for any purpose other than the preventing of death or hurt;
  4. that this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend.

For example, Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires to be trepanned. A, not intending Z's death, but in good faith, for Z's benefit, performs the trepan before Z recovers his power of judging for himself. A has committed no offence.

Communication Made in Good Faith (Section 93)

No communication made in good faith is an offence by reason of any harm to the person to whom it is made, if it is made for the benefit of that person.

For example, A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient's death.

Act to which a Person is Compelled by Threats (Section 94)

Except murder, and offences against the State punishable with death, nothing is an offence which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence.

Provided 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 in the situation by which he became subject to such constraint.

Act causing Slight Harm (Section 95)

Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm.

Things Done in Private Defence (Section 96)

Nothing is an offence which is done in the exercise of the right of private defence.

In the case of Madan Mohan Pandey v. State of Uttar Pradesh, 1991, it was held that in judging whether accused has exceeded his right to private defence or not, the court has to take into account the weapons used.

In case of Sawai Ram V. State of Rajasthan, 1997, it was held that the accused is not required to prove that plea of private defence of person beyond reasonable manner of doubt. The onus on the accused is only to show that the defence version is probable one which is reflected from the salient features and the circumstances in the prosecution case itself.

Right of Private Defence of the Body and of Property (Section 97)

Every person has a right, subject to the restrictions contained in Section 99, to defend:
  1. His own body, and the body of any other person, against any offence affecting the human body.
  2. The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

Right of Private Defence against the Act of a Person of Unsound Mind, etc. (Section 98)

When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence.

For example, Z, under the influence of madness, attempts to kill A; Z is guilty of no offence. But A has the same right of private defence which he would have if Z were sane.

Acts against which there is No Right of Private Defence (Section 99)

There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant or direction of public servant acting in good faith under colour of his office, though that act or direction may not be strictly justifiable by law. There is no right of private defence in cases in which there is time to have recourse to protection of the public authorities.

Section 100 of the Act

This section deals with 'When the right of private defence of the body extends to causing death'. As per the provisions of this section, the right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:
  1. Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault.
  2. Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault.
  3. An assault with the intention of committing rape.
  4. An assault with the intention of gratifying unnatural lust.
  5. An assault with the intention of kidnapping or abducting.
  6. An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.
In case of Kishore Shambudatta Mishra v. State of Maharashtra, 1989, it was held that the inmates clearly had a right of private defence against the intruders who tried to extract money by force.

In case of Khuddu v. State of Uttar Pradesh, 1993, Supreme Court observed that “if the accused had already dealt several blows on the deceased, he could not have been in a position to shoot at the accused persons. Having regard to some of the admissions made by the witnesses, it appears that the accused took forcible possession of the land some days ago. Therefore, even assuming that they came into possession after committing trespassing, if the deceased and other had gone to the land, they cannot be held to be aggressors as pleaded by the defence”.

Section 101 of the Act

This section deals with “when such right extends to causing any harm other than death”.

As per the provisions of this section, if the offence be not of any of the descriptions enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in Section 99, to the voluntary causing to the assailant of any harm other than death.

Section 102 of the Act

This section deals with 'Commencement and continuance of the right of private defence of the body'.

As per the provisions of this section, the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues,

Section 103 of the Act

This section deals with 'When the right of private defence of property extends to causing death'.
As per the provisions of this section, the right of private defence of property extends, under the restrictions mentioned in Section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:
  • Robbery;
  • House-breaking by night;
  • Mischief by fire committed on any building, tent or vessel, which building tent or vessel is used as a human dwelling, or as a place for the custody of property;
  • Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.

Section 104 of the Act

This section deals with when such right extends to causing any harm other than death.
As per the provisions of this section, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in Section 99, to the voluntary causing to the wrong-doer of any harm other than death.

Section 105 of the Act

This section deals with 'Commencement and continuance of the right of private defence of property'.

As per the provisions of this section, the right of private defence of property commences when a reasonable apprehension of danger to the property commences. The right of private defence of property against theft continues till the offender has affected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered.
The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues.

The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass mischief. The right of private defence of property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues.

Section 106 of the Act

This section deals with 'Right of private defence against deadly assault when there is risk of harm to innocent person'.
As per the provisions of this section, if in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender is so situated that he cannot effectually exercise that right without risk of harm to an innocent person; his right of private defence extends to the running of that risk.

For example, A is attacked by a mob who attempts to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob. A commits no offence if by so firing he harms any of the children.

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