GENERAL EXCEPTION AND ITS INTRODUCTION BY - MAYANK KUMAR
GENERAL EXCEPTION AND ITS
INTRODUCTION
AUTHORED BY
- MAYANK KUMAR
Abstract
An accused
can be absolved of criminal liability for any illegal act or omission (offense)
committed by him if there are various circumstances that can render an act or
action non-criminal/non-offense. General Exceptions are defenses available to
the accused that absolve them of criminal culpability. These defenses are dependent
on the circumstances at the time, the accused's men's rea, and the
reasonableness of his or her actions. The Indian Penal Code, 1860 safeguards or
makes an infraction a non-offense in order to keep you or another person in a
similar situation from being fined. Sections 76 to 106 guarantee the
"right of the people to safeguard his life and limb, as well as the lives and
limbs of others".
Different
methods and criteria for getting or protecting someone are given out further in this article. If found
guilty, the accused must be held accountable for his actions
and sentenced to the appropriate punishment.
Crime entails
a guilty mentality, guilty intention, and guilty conduct, in addition to an illegal act or omission. An
act that does not meet these criteria for being a criminal
is then excused from becoming a crime. These
are the most common exceptions that an accused person can use to avoid guilt or avoid committing a crime. There
are some exceptions that an accused
person can utilize to avoid responsibility or avoid committing a crime that could result in death or harm
to an innocent person. Given the democratic
structure of our country, the accused should be given the opportunity to be heard as well. This is
why specific exceptions exist to allow people
to represent themselves in court.
Keywords: Act,
accused, criminal, defence, general exceptions, Indian penal.
Introduction
General
Exceptions are defenses available to the accused that absolve them of criminal culpability.
An accused can be absolved of criminal liability for any illegal act or
omission (offense) committed by him, which indicates that there are various
circumstances that can render an act or action non- criminal/non-offense. Men's
rea (evil purpose) and actus rea (commission of the act in furtherance of the evil
intention) are the two sines qua non- essentials that must be met in order to charge an accused with a crime under the Indian
Penal Code.
If either
is missing, the accused person cannot be charged with the offence of committing the crime and may
plead for his defence, as clearly specified
by the IPC, 1860. Sections 76 to 106 guarantee the right of the people
to safeguard their own and others'
lives and limbs. Section 6 of the IPC states
that all offences
in the IPC are to be read with general exclusions.
According to
Section 105 of the Indian Evidence Act of 1872, the accused bears the burden of proving broad
exceptions to the IPC. Another major decision
by the Supreme Court criminalized sex with a minor wife aged 15 to 18 years. The court dismissed a rape
law exception that permitted a husband
to have sex with his wife aged 15 and up regardless of consent, including punishment. The NGO Independent
Thought filed a PIL in court, paving
the door for this verdict, which will be applied even in the context of Muslim personal law. In India, criminal
law deals with such matters, which
are classified into several divisions based on their nature. Criminal law encompasses a wide range of sanctions
that vary depending on the circumstances.
However, it is not always necessary for a person to be punished for a crime that he or she has done. Under
"General Exceptions," the
Indian Penal Code (IPC) of 1860 recognises defences. These defences, which are founded on the presumption that
a person is not accountable for the
crime committed, are covered in sections 76 to 106. These defences are dependent on the circumstances at the
time, the accused's men's rea and the reasonableness of his or her actions.
Assume you have been attacked in an aggressive manner by an aggressor, and you will undoubtedly strive to
defend yourself as a result of your stimulation.
Are you
responsible for causing harm or offense to the aggressor if you cause harm or offense to the assailant
during that defense? As a result, the Indian
Penal Code, 1860 safeguards or makes an infraction a non-offense in order to keep you or another person in a
similar situation from being fined. Not only do you get protection
out of necessity, but you also get exemptions if you're insane
or intoxicated, among other things.
Sections 76 to 106 guarantee the "right of the people
to safeguard his life and limb, as well
as the lives and limbs of others." Different methods and criteria for getting or protecting someone are given
out further in this article, which will be dealt
with in detail for the reader's convenience.
Why is a necessity
for a general exception?
A need can be
defined as the state or fact of being necessary of general exception for a broad sense. The defense
of necessity is employed when a person
commits a crime or causes harm to another person or property in order to prevent or avert more serious
harm than what he has committed. This
section includes a principle that allows a person to be forgiven for inflicting less harm in order to prevent
or avoid doing more harm. From section 81, you
can see that need is an exemption to the IPC.
According to
Section 81 of the IPC, anything done with the knowledge that it is likely to cause injury, or to
prevent or avert additional harm to a person
or property, is not deemed an infraction if done without any criminal purpose and in good faith. Suppose, if any
person committed to crime, at that
time these kinds of exceptions are useful for them to get out of the dilemma of the law.
Excusable and Justifiable Exceptions
In general,
a crime is committed when the two fundamental elements
of the crime are fulfilled. Mens Rea and Actus Reus are their names.
Aside from that, the crime committed
should be justified and excused. As a result, the general exemption under IPC is divided into two
main categories:
Excusable Exceptions
These are
exceptions to the crime in which the bad character or evil intention
of the person committing the crime cannot
be established. They are as follows:
? Mistake of fact
? Infancy
? Accident
? Insanity
? Intoxication.
Justifiable
Exceptions
Those exceptions
in which crimes committed are wrongful under normal circumstances but were
deemed tolerable and acceptable to everyone are referred to as justifiable exceptions.
They are as follows:
? Judicial act
? Necessity
? Consent
? Duress
? Communication
? Trifles
? Private defense.
A mistake of
Fact (Sections 76 and 79)
Section 76
states that an act is done by a person bound or mistakenly believing himself to
be bound by law. Nothing constitutes an infraction if it is committed by a person
who, in good faith, thinks himself to be compelled by law to perform the act in
question. It is based on the legal adage "ignorantia facti excusat, ignorantia
juris non excusat." For example, if a soldier fires at a mob in the
direction of his office and in accordance with the law, he will not be held
accountable. Section 79 includes the act is done by a person justified or by
mistake of fact believing, himself justified, by law. Nothing is an infraction
if done by a person who is justified by law, or who thinks himself to be
justified by law because of an error of fact rather than a mistake of law in
good faith. For example, "A" believes Z is a murderer and seizes him
in good faith and in accordance with the law. A hasn't done anything wrong.
Section 79 case law
In Kiran
Bedi v. Committee of Inquiry, the petitioner declined to be deposed
at the start of the inquiry
because she believed
she could only be deposed at the end.
Accidents (Section 80)
Accidents
under Section 80 include those that occur while doing a lawful act. Nothing is a crime if it is done by
accident or misfortune, with no criminal intent
or knowledge, in the course
of performing an authorized act in
a lawful manner,
using lawful means,
and with sufficient care and caution.
For example,
if A is attempting to shoot a bird with a
gun and the bullet reflected from an oak tree
injures C, A will not be held accountable.
Section 80
case law
division
bench ruled in King Emperor v. Timmappa that
shooting with an unauthorized gun
does not preclude an accused from claiming defense under Section 81 of the IPC. The acquittal appeal was dismissed,
and the trial magistrate's order was
upheld. The court determined that there was no
basis to increase the sentence imposed under Section 19(e) of the Indian Arms Act. The responder was once responsible under the provision, but not anymore. He only borrowed a gun for a
few minutes to kill because he was afraid
a wild animal might attack him and his partners. Regarding the sentence
augmentation, the motion was denied.
Infancy (Section 82 and 83) Section
82:
It includes
an act committed by a kid under the age of seven. Nothing done offense by a kid
under the age of seven constitutes an infraction. If a child under the age of
seven presses the trigger of a gun and kills his father, the child will not be held
responsible.
Section 83:
It covers
an act of immature comprehension by a child aged seven to twelve. Nothing is an offense, committed
by a child over the age of seven, but
under the age of twelve who has not yet reached adequate maturity or understanding to determine the nature and consequences of his behavior
on that occasion.
For
example, if a 10-year-old boy shoots his father with a rifle while still immature, he will not be held
accountable because he has not reached maturity.
Section 83 case law
In Krishna Bhagwan v. the State of Bihar,
the Patna High Court ruled that a
child who is accused of an offense during the trial and has reached the age of seven years or has reached the age of seven years
at the time of the decision can be convicted if he has
understanding knowledge of the offense committed
by him.
Insanity (Section
84)
A person of
unsound mind acts. Nothing is an offense if it is committed by a person who, at
the time of the act, is incapable of comprehending the nature of the conduct
and, he is not capable to understand that he is doing something unlawful or against
the law.
For
example, if A, who is insane or unsound, kills B with a knife in the belief that it is a fun game, he will not
be held accountable for B's death because he was unaware of the nature of the crime and legislation. He was incapable of rational thought.
Section 84
case law
In Ashiruddin Ahmed vs. State, the accused
Ashiruddin was told in heaven to sacrifice his own four-year-old son. The next morning,
he brought his son to a Mosque
and murdered him, then went to his uncle and
informed him discreetly what
he had done. But after spotting the chowkidar, he brought the uncle closer
to a tank and told him the story. The Supreme
Court ruled that the accused could employ the defense because, while he was aware of the nature of the
crime, he had no idea what was unlawful.
Intoxication
(Section 85 and 86) Section 85:
Act of a
person rendered incapable of judgment due to intoxication committed against his
will. Nothing is a crime done by a person who, at the time of performing it, is
incapable of comprehending the nature of the act, or that he is doing something
illegal or against the law, provided that the thing that inebriated him was
administered involuntarily without his volition or knowledge.
Example: A drank alcohol supplied to him
by a buddy, mistaking it for a cold drink. He grew inebriated and hit
someone while driving
back home. He will not be held accountable because
alcohol was provided to him against his consent and knowledge.
Section 86:
Offense
requires a specific intent or knowledge perpetrated by an intoxicated person. This applies in cases
where an act is not an offense unless
done with specific knowledge or intent; a person who does the act while intoxicated is liable to be dealt with as if he had the same
knowledge as if he had not been
intoxicated unless the thing that intoxicated him was administered to him without his knowledge and understanding of
his behavior or against his will.
For
example, a person who is intoxicated and stabs another person while under the effect of alcohol
that was provided
to him at the party against
his knowledge or will is not
accountable. However, if that guy stabbed that
victim while under the influence
of alcohol, he will be held accountable.
Section 86 case law
The accused
in the Babu Sadashiv
Jadhav case was inebriated and clashed
with their wife. He poured kerosene on her, set her on fire, and then began
quenching the flames.
The court determined that he intended
to cause physical harm that was likely to result
in death in violation of Section 299. (20
and sentenced under section 304, Part
I of code).
Justifiable
Acts Section 77:
When acting
judicially, act as a judge. Nothing is an offense committed by a judge when acting judicially in the
exercise of any power granted to him by law, or
which he believes to be
so in good faith.
For example,
Ajmal Kasab was sentenced to death
under the judicial
authority of judges.
Section 78:
Act did in accordance with a court's judgement or order. Nothing
is done in pursuance
of or warranted by, a court of justice's judgement or order is an offence if done while such judgement or
order is in force, even if the court had
no jurisdiction to pass such judgement or order, provided the person doing the act in good faith believes
that the court had such jurisdiction.
For
example, a judge who issues an order of life imprisonment while believing
in good faith that the court has jurisdiction is not accountable.
Necessity
(Section 81)
Acts that
are likely to cause harm yet are carried out without criminal intent and to prevent
further harm. Nothing
is an offence simply because
it is done with the
knowledge that it is likely to cause harm if it is done in good faith for the goal of preventing or avoiding
additional harm to a person or property and without any criminal intent to cause
harm.
Example: A
Captain of a ship changes the course of a ship carrying 100 people in order to save their lives, but
in the process endangers the lives of 30 people in a small boat, with no intention, negligence, or fault on
his side. He will not be held accountable since necessity is a state in
which a person does minor harm in
order to avoid major harm.
Consent (Section 87 – 89 & Section
92) Section 87:
Act is done
by consent that is not intended or known to cause death or serious injury. Nothing is an offence if
it causes, or is likely to cause, death or
grievous harm to any person over the age of 18 who has given consent, whether express or implied, to suffer that harm; or if it causes, or is likely to cause, death
or grievous harm to any such person who has given
consent, whether express
or implied, to suffer that harm or injury.
For instance,
A and E agreed
to fence each other for fun. This agreement means that both parties agree to suffer
harm that may occur during the course
of such fencing without foul play, and that if A injures E while playing
fairly, A has done no offense.
Section 87 Case Law
In Poonai Fattemah v. Emp, the accused,
who claimed to be a snake charmer, convinced
the deceased that he had the power to shield him from the snake bite. The dead trusted him and
was bitten by a snake, dying as a result. Consent
as a defence was denied.
Section 88:
Act not
meant to cause death, performed in good faith for the benefit of another. Nothing is an offence because of
any harm 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 consent, whether
directly or by implication, to suffer that harm or to take the risk of that harm or any
damage.
Section 88
case law
In R.P Dhanda v. Bhurelal, the appellant,
a medical doctor, performed cataract surgery
with the patient's consent. The procedure resulted in vision
loss. This defence
shielded the doctor since he acted in good
faith.
Section 89:
Act has
been done in good faith for the benefit of a child or crazy person, with the guardian's permission or
approval. Nothing done in good faith for the
benefit of a person under the age of twelve or who is mentally ill, with or without the express or implied consent
of the guardian or other person in lawful
charge of that person, is an offence because of any harm that it may cause,
be intended to cause, or be known by the doer to be likely
to cause to that person.
Section 90:
Consent
granted under duress or misunderstanding. Permission does not mean
the kind of consent that any section
of this Code implies.
? if the permission is provided out of fear of harm or
a misunderstanding of facts, and the person executing the act knows or has
reason to believe that the consent was given out of fear or misunderstanding; or
? Consent of an insane person if the assent is provided
by a person who is unable to appreciate the nature and consequences of what he
consents to due to mental illness or intoxication; or
? Children's consent, on the other hand, appears from the
context if it is granted by someone under the age of twelve.
Section 90 precedent
In Jakir
Ali v. State of Assam, it was established beyond a reasonable doubt that the accused had sexual
relations with the victim in exchange for a
fraudulent promise of marriage. The Gauhati High Court ruled that a woman's offering of her body under duress
or misinformation cannot be regarded
as consent and that the accused's conviction under sections 376 and 417
of the Indian Penal Code was valid.
Section 91:
Acts that
constitute crimes regardless of the harm they cause are excluded. The exceptions in sections 87, 88, and 89
do not apply to activities that are crimes in and of themselves, regardless
of any harm they may cause, be intended
to cause, or be known to be likely to cause, to the person giving consent
or on whose behalf the consent is provided.
Section 92:
Act has
been done in good faith for the benefit of another person without their agreement. Nothing is an offense
because of any harm it may cause to a
person for whose benefit it is done in good faith, even without that person's consent, if the circumstances are
such that that person cannot 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 consent can be obtained in time for the object to be done with benefit.
Communication (Section
93)
Communication
is done with the best of intentions. No communication made in good faith that causes injury to the person to whom it
is addressed is an offense if it is done for that person's
benefit. For example, a doctor informs the wife that her husband has cancer and that his life is in jeopardy. Hearing this,
the wife died of shock. The doctor will not be held accountable because he gave this information in good faith.
Duress (Section
94)
Threats
compel a person to perform an act. Except for murder and crimes against the state punishable by death,
nothing is done by a person compelled
to do it under threats that reasonably cause the apprehension that instant death will otherwise be the
result provided the person doing the act did
not place himself in the situation by which he became subject of his own volition or from reasonable
apprehension of harm to himself short of instant death.
Example: A
was apprehended by a gang of robbers and was facing instant death.
He was obliged to take a revolver and open the door of the
house to allow dacoits to enter and harm the
family. A will not commit an offense under duress.
Trifles (Section
95)
This
section covers acts that cause minor injury. Nothing constitutes a crime just because it produces, or is
intended to cause, or is known to be likely
to do, any injury if the harm is so minor that no person of ordinary sense and
temper would complain about it.
Case Law
Mrs. Veeda Menezes v. Khan involved an
argument between the appellant's husband
and the respondent during which the latter threw
a file of papers at the former, which hit the appellant and caused a
scrape on the elbow. Because the
injury was minor, the SC found the defendant not guilty.
Private Defence
(Section 96 – 106)
Section 96:
Things are done in private defence under this Section 96. Nothing is an offence if someone harms another person in
the name of self-defence or private defence.
Section 97:
Right to private bodily and property defence. Under Section 99, everyone has the
right to private defence, subject to reasonable limitations.
? Protecting his or another's body from any crime
that poses a threat to life.
? Defending his or another's mobile or immovable property
against theft, robbery, mischief, or criminal trespass,
or an attempt to commit theft, robbery, mischief, or criminal trespass.
For
example, in order to protect his daughter from a thief's onslaught, a parent shoots him in the leg. However,
because he was safeguarding his daughter's life, the father will not be held accountable.
Section 97 case law
The Gauhati
High Court declared in Akonti Bora v.
State of Assam that in exercising
the right of private defense of property, the act of dispossession or throwing out a trespasser includes the
right to throw away the material objects with which the trespass was committed.
Section 98: Right to private defence
against the act of
an insane person, etc.
When an act
that would otherwise be a certain offence is not that offence due to the person's youth, lack of
understanding maturity, unsoundness of mind or intoxication, or any
misconception on the part of that person,
every person has the same
right of private defence against that act that he would have if the act were that offence.
Example: A attempts to murder
Z while insane,
but A is not guilty. To protect himself
against A, Z can use private defence.
Section 99: Acts against
which no private defence
is available.
There is no
right of private defence against an act that, if done, does not rationally induce the fear of death or
great bodily harm.
·
Attempted to be done by a public officer acting in
good faith under the colour of his authority, even though the act is not strictly
legal.
·
There is no right of private defence against an act
that, if done, does not rationally induce the fear of death or great bodily harm.
·
Attempted to be done under the instruction of a public
official operating in good faith under the colour of his position, even though that
directive is not absolutely legal.
·
There is no right to private defence in circumstances
where there is time to seek public authorities' protection.
·
The harm done should be proportional to the threat or attack.
Section 99 case law
The Supreme
Court stated in Puran Singh v. State of
Punjab that where there is an
element of invasion or aggression on the property by a person who has no right of possession, there is
definitely no room for recourse to public
authorities and the accused has the undeniable right to oppose the attack and
use force if necessary.
Section
100: This section addresses the issue of "where the right to
private defence of the body extends
to causing death." According to the provisions of this section, the right of private defence of the body
extends, subject to the restrictions mentioned in the preceding section,
to the voluntary causing of death or other harm to the assailant
if the offence that prompts the exercise of the right is of any of the following descriptions:
Assault
resulting in a realistic fear of death.
? Reasonable fear of severe harm.
? Raping someone.
? Irrational lust.
? Kidnapping or kidnapping.
? Wrongfully confining a person in a
situation in which that person reasonably
suspects an assault but is unable to call public authorities.
? Throwing
or attempting to throw acid, generates fear in the mind that the assault may inflict great harm.
Section 100 Case
Law
In Yogendra
Morarji v. State, the Supreme Court went into great depth into the scope and
limitations of the right to private bodily defense. There must be no safe or
reasonable means of escape or retreat for the individual faced with imminent danger
to life or bodily damage other than death.
Section 101: When such rights include
the ability to cause injury
other than death. If the offence does not fit any
of the descriptions in the preceding section,
the right to private defence of the body does not extend to the voluntary causing of death to the
assailant, but it does extend, subject to the
restrictions mentioned in section 99, to the voluntary causing of any
harm other than death to the assailant.
Section 101 case law
The burden
of proof to establish the right to private defence is not as onerous in Dharmindar v. State of Himachal
Pradesh as it is for the prosecution
to show its case. When the facts and circumstances point to a majority of probabilities in favour of
the defence case, it is sufficient to discharge the burden of proving
self-defence.
Section
102: Establishment and maintenance of the right to private bodily defence. The right to private defence of
the body begins when there is a reasonable concern
of harm to the body as a
result of an attempt or threat to conduct the offence, even if the offence
is not performed; it continues as long as such
apprehension of risk to the body exists.
For
example, A, B, and C were pursuing D in order to kill him in order to exact revenge when they noticed a police
officer approaching from the other
side. They became terrified and turned to flee. However, D shoots B in the leg despite the fact that there is no
imminent danger of harm.
D will be held accountable because
there was no fear of death
or harm.
Section
103: When the right to private property protection extends to causing death. ? Robbery; ? nighttime
housebreaking ? Mischief by fire perpetrated against any house, tent, or vessel used as a human residence
or a place for the custody
of property; ? Theft, mischief, or house-trespass, if there is a reasonable fear that death or serious bodily harm
would result if such right
of private defense
is not used.
Example: C tries
to stab D deliberately while breaking into D's residence. D had a realistic
fear that C will cause him great harm, therefore in order to safeguard himself and his property, D
choked C with a knife in his chest, resulting in Death.
D will not be held accountable.
Section 103 case law
The slain worker and some of his coworkers
were making demands
outside the plant in Mohinder Pal Jolly v. State. They also
threw brickbats at the property of
the owner, who fired two rounds from outside his office room, one of which killed the deceased worker.
The court ruled that it was a case of
mischief, and the accused will not be able to use this part as a
defense.
Section
104: When such right includes the ability to cause harm other than death.
If the
offense, the commission of which, or the attempting to commit which, gives rise to the exercise of the
right of private defense is theft, mischief,
or criminal trespass, 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 of any harm other than
death to the wrongdoer.
For example,
if A commits illegal trespass
in order to irritate or harm
B, B has the right to harm A
in a proportional manner that does not result in the person's death.
Section 105: Establishment and continuation of the
right to private
property defence. The right
to private property defence
begins when:
·
The reasonable fear of threat to the property begins.
·
The right to private property defence against theft
continues until the criminal has fled with the goods.
·
Alternatively, the support of public authorities is engaged.
·
Alternatively, the property has been recovered.
·
The right to private property defence against robbery
exists as long as the,
·
Offender causes or attempts to cause death or bodily harm
to someone.
·
Alternatively, wrongful restraint
·
As long as there is the threat of sudden death or
Immediate pain or Personal constraint remains instant.
·
As long as the offender is committing criminal
trespass or mischief, the right to private property defence against criminal trespass
or offence exists.
The right
to private property defence against nighttime housebreaking continues as long
as the house-trespass that was started by such housebreaking persists.
For example,
if a burglar breaks into an individual's home and attempts
to injure him immediately
with a knife, the individual has the right to act in self-defense and harm the thief in
order to safeguard
life and property.
Section 106: Right of private defence
against fatal assault
when an innocent person is at risk. If a person generates apprehension
of death in the course of exercising private
defence against an assault, and the defender
has no alternative but to
damage an innocent person, his right will be extended to that danger.
For instance,
C is attacked by a crowd that tries to assassinate him. He can't
use his right to self-defence without shooting at the rabble. To rescue himself,
he is forced to harm innocent
children while firing, hence C did not commit an
offence by exercising his privilege.
Conclusion
General Exceptions
are legal defenses
that exonerate the accused of criminal
responsibility. A variety of situations can make an act or conduct non-criminal or non-offense. Any illegal
act or omission (offense) performed
by an accused can be freed of criminal culpability. The Indian Penal Code (IPC) Sections 76 through 106
provide emergency protection. This
suggests that a person can be pardoned for doing less harm to avoid or prevent doing more harm. It could even
result in a person's death or injuring an innocent
person. So those
are the general
exceptions that an accused
person can utilize to avoid culpability or spare himself from committing a crime. Depending on the circumstances,
it could even result in a person's death
or harm an innocent person. Considering our country's democratic nature, the accused should likewise have
the chance to be heard. This is why
certain exceptions exist so that one can represent oneself in a court of law.