Chapter IV of the Indian Penal Code deals with exceptions to criminal liability. These exceptions cover different acts that, under specific circumstances mentioned in Sections 76 to 106, are not considered offences.
Here are the 7 general exceptions in IPC:
- Mistake of fact (Sections 76, 79).
- Judicial acts (Sections 77-78).
- Accident (Section 80).
- Absence of criminal intention (Sections 81-86, 92-94).
- An act is done by consent (Sections 87-91).
- Trifling Act (Section 95).
- Private defence (Sections 96-106).
The accused person has to prove that their case falls within one of these exceptions. The court assumes the absence of such circumstances unless proven otherwise. On the other hand, the prosecution has the responsibility to prove the accused’s guilt.
For example, let’s say A is accused of murder but claims they didn’t know what they were doing because of their mental condition. In this case, A needs to provide evidence to support their claim. It’s important to note that while the prosecution needs to prove the charge beyond a reasonable doubt, the accused person needs to show that it is more likely than not that their plea is true.
General Defences and Exceptions in IPC
The 7 general defences and expectations in IPC are:
76 and 79: Mistake of Fact
Section 76: Mistake of Fact as a Defence
Under Section 76 of the law, a person who, in good faith, believes they are legally obligated to do something, and acts accordingly due to a mistake of fact (not a mistake of law), is not considered to have committed an offence.
- A soldier, following orders from a superior officer and conforming to the law, fires upon a mob. In this case, the soldier has not committed an offence.
- An officer of a Court of Justice, following a court order to arrest Y, mistakenly arrests Z after conducting a proper investigation. The officer has not committed an offence.
Mistake as an Honest Error
The mistake is an unintentional error, not deliberate wrongdoing. Even under English common law, an honest and reasonable belief in circumstances that would have made an act innocent has always been a valid defence. An honest and reasonable mistake is similar to the absence of reasoning, infancy, or lunacy.
Ignorance of Fact is Excusable
Mere forgetfulness is not considered a mistake. Mistake of fact refers to errors in identifying true identities or sensory perceptions, such as temporary distortion of imagination. For instance, in the case of Tolson, a wife was wrongly convicted of bigamy. She genuinely believed her husband was dead when she remarried, so her conviction was incorrect.
When Mistake of Fact is Not a Defence
Mistakes of fact cannot be used as a defence if the fact itself is illegal. One cannot perform an illegal act, such as selling adulterated food, and then claim ignorance as a defence. Similarly, taking an unmarried girl under 16 against her father’s will does not serve as a valid defence for abduction. Intent to commit a wrongful or immoral act, rather than an innocent act, renders the defence ineffective.
The Principle of Respondeat Superior
In criminal law, the respondeat superior principle (acting under a superior’s order) does not apply. An order from a superior to an inferior employee to commit an offence is not a valid defence. If the order is illegal, the subordinate is justified in refusing it.
In cases where responsible inquiry would have revealed the true facts, ignorance of fact cannot be pleaded. For example, if a person marries believing in good faith that a divorce decree has legally dissolved their previous marriage, but it hasn’t, they would be guilty of bigamy. They should have conducted responsible inquiries to confirm the dissolution of their previous marriage.
Section 79: Good Faith Belief in Justification by Law
According to Section 79, if a person genuinely believes in good faith that their actions are justified by law, they are not considered offences. The key difference between Section 76 and Section 79 is that a person is assumed to be legally bound in the former, while in the latter, they are assumed to have legal justification. This means the distinction lies between a real or perceived legal obligation/compulsion and a real or perceived legal justification for the act. However, both sections require a sincere intention to act in accordance with the law (without a guilty mind).
Witnesses what appears to be a murder committed by Z. In good faith, A apprehends Z to hand him over to the police. In this case, A has not committed an offence, even if it turns out that Z was acting in self-defence.
Cases falling under Section 79 include
- Chirangi v. State (1952 CrLJ 1212): In a momentary delusion, the accused mistakenly identified his son as a tiger and tragically killed him.
- Waryam Singh v. Emperor (AIR 1962 Lah 554): During the night, the accused mistook a living person for a ghost and caused harm to them.
- State of Orissa v. Ram Bahadur Thapa (AIR 1961 Ori 161): In a similar incident, the accused mistakenly believed that a person was a ghost and committed an act resulting in harm.
These cases demonstrate situations where individuals acted in good faith, but due to a genuine mistake, their actions led to unintended consequences.
Sections 77 and 78: Judicial Acts
The second general exception pertains to the acts of judges and courts. According to Section 77, any act performed by a judge in the course of their judicial duties, which they genuinely believe, in good faith, is authorized by law, is not considered an offence. For instance, even if a judge mistakenly sentences a person to death, they are not liable for causing someone’s death.
Similarly, Section 78 states that an act carried out in accordance with the judgment or order of a court of justice, as long as the person involved genuinely believes in good faith that the court has jurisdiction, is not an offence. This means that the executioner who carries out the hanging of a prisoner based on the court’s order would not be held accountable for the act.
It is important to note that under Section 78, the person executing the court’s order is protected, even if its jurisdiction is questionable. On the other hand, under Section 77, the judge must act within their jurisdiction to benefit from the protection. Therefore, a mistake of law can be used as a defence under Section 78.
Section 80: Accident
The third general exception deals with acts committed by accident. According to Section 80, no offence is committed when an act is done unintentionally or by misfortune:
- Without criminal intention or knowledge.
- In the process of carrying out a lawful act using lawful means in a lawful manner.
- With the exercise of proper care and caution.
Let’s say A is working with a hatchet, and accidentally, the head of the hatchet flies off, killing a person standing nearby. If A took proper caution and there was no negligence, their act is excusable and not considered an offence.
An accident is something that occurs unexpectedly, outside the normal course of events. It involves the idea of something fortuitous and unforeseen. An injury is considered to be caused accidentally when it is neither intentional nor due to negligence.
For example, during a game of cricket, if a ball strikes a person’s head resulting in their death, it is considered an accidental death. Similarly, if two wrestlers engage in a bout and during it, one of them falls and breaks their skull, it is also considered an accidental occurrence.
Some other illustrations include:
- A playfully points a gun at B without checking whether it is loaded and accidentally pulls the trigger, causing B’s death. In this case, the death is not considered accidental due to the lack of proper care and caution. However, if A had reason to believe the gun was not loaded, the death would be considered accidental.
- If A shoots at a bird in B’s house with the intention to steal it but accidentally kills B in the process, A would be held liable as their act of stealing is not a lawful act.
Sections 81-86 and 92-94: Absence of Criminal Intent
Criminal intention refers to the purpose or intention of committing an act prohibited by criminal law without any valid justification or excuse.
However, certain acts may appear criminal but are performed without any criminal intent. It is fair that such acts should not be punished since they lack mens rea, which is the mental element of criminal responsibility.
There are seven such acts mentioned in Secs. 81-86 and 92-94:
- An act done to avoid other harm (Sec. 81).
- Act of a child (Secs. 82-83).
- Act of lunatic (Sec. 84).
- Act of an intoxicated person (Secs. 85-86).
- Bona fide act for another’s benefit (Sec. 92).
- Communication made in good faith (Sec. 93).
- An act is done under compulsion or threat (Sec. 94).
Section 81: Act Done to Avoid Other Harm
An act done with the knowledge that it may cause harm, but performed in good faith and without any criminal intention to cause harm, to prevent or avoid harm to a person or property, is not considered an offence.
For example, if a person, during a great fire, pulls down houses to prevent the spread of the fire or if sailors throw passengers overboard to lighten a boat in a dangerous situation, these acts are not considered offences under Section 81.
The underlying principle of Section 81 is that in sudden and extreme emergencies where one of two inevitable evils must occur, it is lawful to choose the lesser evil. Whether such circumstances exist in a particular case is a matter of fact to be determined.
However, it is important to note that a person cannot intentionally commit a crime to avoid greater harm. For instance, if a thief intentionally poisons the stolen toddy to catch the thief but unknowingly causes harm to unsuspecting individuals who consume it, Section 81 cannot be used as a defence.
Similarly, a starving person cannot justify stealing food by claiming that it was done to avoid harm, such as their death. Intentionally committing an offence like theft cannot be justified under the principle of self-preservation.
In the case of Dudley v. Stephens (1884) 14 Q. B. D. 173, it was held that a person who kills another to consume their flesh to save themselves from starvation is guilty of murder. The doctrine of self-preservation does not apply in such cases.
Sections 82-83: Act of Child
According to the Indian Penal Code, children under seven are considered incapable of committing a crime. Section 82 states that the acts of a child under seven are not offences. It’s important to note that this immunity extends not only to offences under the Indian Penal Code but also to offences under any special or local law.
By legal presumption, infants are deemed doli incapax, meaning they cannot understand right from wrong, and therefore the question of criminal intent does not arise. If individuals commit crimes through children below seven, they will be held responsible while the child will be exempted.
Under Section 83, acts done by children above the age of seven and below the age of twelve will be protected if it can be shown that the child in question did not possess sufficient maturity of understanding to comprehend the nature and consequences of their conduct on that occasion. It’s important to note that after twelve, there is an unlimited liability for punishment.
In a specific case, if a 10-year-old girl enters into a second marriage during her husband’s lifetime, with the marriage arranged and performed by her mother, the girl would be liable for bigamy if she was deemed to possess sufficient maturity of understanding.
Similarly, if a 9-year-old child steals a gold necklace and sells it to someone for a meagre amount, the child would be liable if it can be proven that they had sufficient maturity of understanding. The maxim “malitia supplet aetatem” (malice supplies defect of years) applies to Section 83. The circumstances of a case may reveal a level of malice that justifies the application of this maxim.
Section 84: Act of an Insane Person
Criminal law provides complete protection to individuals who are deemed to be lunatics. Section 84 states that nothing is considered an offence if it is done by a person who, due to unsoundness of mind, is incapable of understanding the nature of the act or that it is wrong or against the law. It’s important to note that the legal insanity referred to in this section is distinct from medical insanity.
- Insane individuals cannot be held culpable as they lack free will (Furiosi nulla voluntas est). The term “unsoundness of mind” encompasses various types of individuals, including:
- Idiot: Someone rendered non-compos mentis due to illness, which may be a temporary failure.
- Lunatic or madman: A person with a mental disorder.
- Unconscious person, if proven: This can include cases of sleepwalking or somnambulism.
- Intoxicated person.
To determine the insanity of a person, the following tests or principles are important:
It must be demonstrated that the accused was of unsound mind when the offence was committed. If they were not insane then but later became insane, they cannot benefit from Section 84.
Factors such as the accused’s history of previous insanity, their behaviour on the day of the incident, and the State of mind before and after the offence are relevant considerations. Evidence of premeditation attempts to evade or resist arrest, confession given shortly after the incident, and other similar factors may undermine an insanity defence (Queen-Empress v. Gedka Gowala AIR 1937 Pat. 333).
Section 84 protects against impairment of cognitive faculties of the mind, such as inherent or organic incapacity. However, it does not protect wrong or erroneous beliefs (which may result from distorted illusions), uncontrollable impulses, moral insanity, weak or defective intellect, or eccentric behaviour. When cognitive faculties are not impaired, and only the will and emotions are affected, insane impulses are not a valid defence (Queen-Empress v. K.N. Shah 1896).
Under Section 84, to claim protection, a person doesn’t need to be unaware of an act being right or wrong, but rather, they must be incapable of knowing whether the act they have done is right or wrong. If the capacity to distinguish between right and wrong is still present, the individual cannot be protected under Section 84 (Lakshmi v. State AIR 1959 All 534).
A related concept to lunacy is known as insane delusion, considered a borderline case. Delusions are false beliefs that can be complete or partial. Whether a person who commits an offence under the influence of an insane delusion is excused depends on the nature of the delusion. The law regarding insane delusions is well-discussed in McNaughten’s case (1843).
In the case of A. Ahmed v. King (AIR 1949 Cal 182), the accused killed his 5-year-old son by thrusting a knife into his throat under the delusion and belief that he had received a command to do so from someone in paradise in his dream. He was held to be protected under Section 84.
For example, if a person suffering from an insane delusion that X and Y were persecuting him buys a knife to seek revenge and later goes to their club and stabs them to death, it shows that he intended to kill. In this case, A would be guilty of murder.
In another case, where a father and his relatives sacrificed their 4-year-old son to propitiate a deity, the Supreme Court held that this act alone does not prove insanity (Paras Ram v. State of Punjab, 1981).
When acts of violence are committed by a person without any apparent motive, especially towards their close relatives with whom they had previously been affectionate, and when there is a history of lunacy, the benefit of the doubt may favour the accused.
Individuals who are occasionally possessed by spirits or experience visions/images during fits of delirium can benefit from Section 84. However, in cases of delirium tremens (a type of madness caused by habitual excessive alcohol consumption or illness), they would be criminally liable if the patient is aware of their actions.
Sections 85-86: Act of an Intoxicated Person
Drunkenness is considered a form of voluntary madness for which the individual is responsible. If a person chooses to get drunk, it is their own voluntary act, distinct from the madness not caused by any voluntary action.
The Latin maxim “Qui Pecat Ebrius Luat Sobrius” means “Let him who sins when drunk be punished when sober.” However, Sections 85 and 86 protect an intoxicated person if they became intoxicated by mistake (e.g., taking the wrong medicine) or against their will through fraud or force.
Section 85 states that an act done by a person who, due to intoxication, is incapable of knowing the nature of the act or that it is wrong or contrary to law is not an offence, provided that the substance that caused the intoxication was administered without their knowledge or against their will.
The test for drunkenness is the capacity to form an intention to commit the offence, whereas the test for insanity is the capacity to know the nature of one’s act. However, if insanity is produced by drunkenness, it can be considered a defence under Section 84.
Section 86 establishes a presumption for certain offences committed by intoxicated persons. Suppose an act is an offence only when done with a particular intention or knowledge, and an intoxicated person commits it. In that case, they will be presumed to have the requisite knowledge for the offence unless they can demonstrate that they were intoxicated without their knowledge or against their will. It should be noted that there is no presumption regarding the person’s intention.
Alcohol, medicines, bhang, ganja, etc., can cause intoxication. If the accused drank liquor at the persuasion of their father to alleviate pain, it could not be considered that the liquor administration was against their will. Therefore, they could not claim the benefit under Section 85.
In Basdev v. State of Pepsu (AIR 1956 SC 488), it was held that drunkenness is generally neither a defence nor an excuse for a crime. By law, an intoxicated person is presumed to have the same knowledge as a sober individual. However, the accused’s intention must be determined from the circumstances of the case, taking into account the degree of intoxication.
If the accused’s mind was so affected by drink that they more readily gave in to violent passion, it could not be argued that they did not intend the natural consequences of their actions. To claim the benefit under Section 86, the accused must be so drunk that they could not form the intent (Director of Public Prosecutions v. Beard, 1920).
Test of drunkenness
In cases of drunkenness, the focus is on whether the accused was capable of forming an intention to commit the offence. Insanity produced by drunkenness can be considered a defence under Section 84.
The correct test is whether, due to drunkenness, the accused was incapable of forming the intention to commit the offence. It is presumed that a person intends the natural consequences of their acts. However, this presumption can be rebutted in the case of a drunken person by showing that they did not know their actions were dangerous or that they were incapable of forming the specific intent required for the crime [Director of Public Prosecutions v. Beard (1920) AC 479]. The accused can present evidence of their drunkenness affecting their understanding and ability to form the necessary intent (Dasa Kandha v. State of Orissa, 1976 Cr LJ 2010).
Section 86 states that a voluntarily intoxicated person will be deemed to have the same knowledge as if they were not intoxicated. The section does not presume the same intention as if the person had not been intoxicated; it only presumes the same knowledge. Therefore, there is no presumption regarding intention under Section 86 (only the presumption of knowledge is provided). The accused’s intention must be determined based on the facts and circumstances of each case, taking into account the degree of intoxication.
Suppose the existence of a specific intention is necessary for the commission of a crime. In that case, the fact that the offender was drunk at the time of the act, which would constitute the crime if coupled with that intention, should be considered in determining whether they had the necessary intention (Sir James Stephen).
Voluntary drunkenness can be an excuse only with regard to intention, so it is a complete excuse in crimes where the presence of intention is required. However, voluntary drunkenness is not an excuse for a crime that only requires knowledge, not intention. If a person was completely out of their mind at the time of the crime, holding them accountable may not be possible.
Section 92: Bona fide Act for Another’s Benefit
Under Section 92 of the Indian Penal Code, an act is not considered an offence if it causes harm to a person for whose benefit it is done in good faith, even without that person’s consent, under emergent circumstances. This provision protects individuals who act in the best interests of others in urgent and life-threatening situations.
For example, it would not be considered an offence if a surgeon performs an immediate operation on an accident victim without the victim’s consent but in good faith to save their life. Similarly, if someone drops a child from a housetop during a fire, knowing that the fall may kill the child but not intending to kill the child and intending to secure the child’s benefit in good faith, they would not be held liable for any offence.
In an example where a person fires at a tiger that has carried off someone, knowing that the shot may kill the person but not intending to kill them, and doing so in good faith for their benefit if the bullet fatally wounds the person, the individual who fired the shot would not have committed an offence under Section 92.
This provision recognizes that in emergencies when immediate action is necessary to protect or benefit someone, the harm caused in the process is exempted from criminal liability. It focuses on the intention and good faith of the person performing the act to benefit another.
Section 93: Communication Made in Good Faith
Under Section 93 of the Indian Penal Code, any communication made in good faith to a person for their benefit is not considered an offence, even if it causes harm to that person. This provision protects individuals who communicate information honestly and with good intentions, even if the outcome is unfortunate.
For example, if a surgeon, in good faith, communicates to a patient that they cannot survive a certain condition, and the patient subsequently dies due to the shock caused by the information, the surgeon would not be held liable for any offence. Despite knowing that the communication might lead to the patient’s death, the surgeon’s actions would be considered legal because they were made in good faith for the patient’s benefit.
Section 93 recognizes that sometimes difficult information needs to be conveyed honestly for the welfare of individuals, even if it may cause harm. The provision focuses on the intention behind the communication and protects individuals who act in good faith to provide necessary information for the benefit of others.
Section 94: Act Done under Compulsion or Threat
Under Section 94 of the Indian Penal Code, if a person commits an offence under compulsion or threat, they may be excused if the threat is to cause instant death. However, there are certain limitations to this provision. The person under threat cannot commit murder or an offence against the State that is punishable by death, such as treason, to avail themselves of the benefit of Section 94. Additionally, the person must not have voluntarily or reasonably placed themselves under such constraint due to a fear of harm short of instant death.
If a person voluntarily joins a gang of dacoits on their own accord or due to the threat of being beaten, they would not be entitled to the benefit of Section 94. However, if a person is seized by a gang of dacoits and forced, under the threat of instant death, to commit an illegal offence, such as breaking open a door, they would be entitled to the benefit of Section 94.
It is important to note that the threat must be to cause instant death. Merely threatening with future death or any other injury that is not instant death would not be a valid excuse under Section 94. For example, if someone threatens another person with a stick to harm someone else, the person threatened cannot plead the defence under Section 94. However, if the threat involves a loaded revolver or a dagger held at the person’s throat, causing them to believe they would be instantly killed if they did not commit the offence, this would be a valid defence under Section 94.
Sections 87-91: Act Done by Consent
Sections 87-91 of the Indian Penal Code outline the circumstances in which an act done with the victim’s consent will be excused or not considered an offence. Consent is a crucial factor that distinguishes between innocence and criminal liability in various situations.
Section 90 of the Indian Penal Code specifies instances where consent is not considered valid. These include:
- Consent is given under fear of injury or misconception of fact.
- Consent is given by a person who cannot understand the nature and consequences of the act due to unsoundness of mind or intoxication.
- A person under the age of 12 gives consent.
- It is important to note that mere submission by a person who does not understand the nature of the act is not considered valid consent. Consent and submission are not synonymous.
Now, let’s discuss the sections that provide exceptions in IPC where acts done with consent will not amount to offences:
Section 87 states that if an act, not intended or known to cause death or grievous hurt, causes harm to a person above 18 years of age who has given consent to suffer it, it is not an offence. This section applies to injuries during games, sports, or similar activities. It is based on the principle of volenti non-fit injuria, which means that he who consents cannot complain. However, consent cannot justify acts that are likely to cause death or grievous hurt.
Section 88 states that an act done in good faith for the benefit of the victim, with the victim’s consent, is not an offence. This section protects surgeons performing surgical operations and reasonable acts of teachers, such as corporal punishment, to enforce discipline. However, it does not protect unqualified medical practitioners (quacks).
Section 89 protects acts done in good faith for the benefit of a child or an insane person or with their guardian’s consent.
Section 92 clarifies that the term “benefit” mentioned in Sections 88 and 89 does not include mere pecuniary benefits.
Section 91 specifies that the exceptions in Sections 87-89 do not extend to acts that are offences independently of any harm caused to the person giving consent. For example, causing a miscarriage (unless done in good faith to save the woman’s life) is considered an independent offence, and the consent of the woman or her guardian does not justify the act.
Section 95: Trifling Acts/ Acts Causing Slight Harm
The sixth general exception in IPC is laid down in Section 95. This exception is based on the principle of de minimis non-curat lex, which means that the law does not concern itself with trifles or minor matters.
According to Section 95, if a person causes harm, even intentionally or knowingly, and that harm is so slight that a person of ordinary sense and temper would not complain about it, then it is not considered an offence.
This section applies to acts that result in negligible or trifling harm, including accidental and deliberate acts. The harm can include actual physical injury as well. It recognizes that certain acts, while technically falling within the scope of the penal law, are inconsequential and do not warrant criminal prosecution.
Examples of such trivial acts mentioned in your explanation, such as picking up a wafer from another person’s plate without permission, lighting one’s cigar with someone else’s matchbox without consent, or a light blow given with an umbrella, illustrate the types of acts that would fall within the purview of Section 95. These acts may technically meet the criteria for an offence, but they are considered insignificant and not deserving of legal consequences.
Section 95 prevents the law from being overly burdensome by exempting trivial matters from criminal liability, focusing instead on more substantial offences that warrant attention and prosecution.
Sections 96-106: Right of Private Defence
The right of private defence is defined in the Indian Penal Code.
The right of private defence allows individuals to protect themselves and their property against unlawful aggression by others.
Section 96 of the Indian Penal Code states that nothing is an offence when it is done in the exercise of the right of private defence.
The doctrine of private defence is based on the following principles:
- A person facing grave danger to their life does not have to wait for state aid if it is not readily available.
- Private defence is a preventive measure rather than a means of punishment, although punitive consequences may occur.
- The right of private defence should not be used for self-gratification or to satisfy malicious or sadistic urges. It should not involve deliberate retaliation.
The right of private defence can be exercised when there is a real and immediate threat and reasonable apprehension. Future or hypothetical threats do not justify the use of this right.
The right of private defence arises when there is a reasonable apprehension of danger, even if the offence has not yet been committed. Mistaken apprehension is valid if it is real and reasonable.
The force used in self-defence must be proportionate to the danger faced and should not exceed the necessary limits. However, in situations of imminent danger, a person may not be expected to calculate the proportion of force required precisely.
The right of defence ceases when the necessity for it ends. Pursuing and attacking a fleeing aggressor is not justified.
The law does not require a person to avoid injury by running away if they have the right to exercise self-defence.
Private Defence of Body
Every individual has the right to protect their own body or another person’s body from any offence that harms the human body. This right extends to defending someone even if they are a stranger, unlike the English law that requires an existing relationship like master and servant or husband and wife.
The mental or physical capacity of the attacker, whether they have a guilty mind (mens rea) or not, does not prevent the exercise of the right of private defence. For example, if a lunatic, minor, intoxicated person or someone acting under a mistaken belief tries to kill someone, they are not guilty of an offence. However, the person being attacked has the same right to defend themselves as they would if the attacker were sane.
General Restrictions on the Right of Private Defence
There is no right of private defence against an act that does not reasonably cause the fear of death or serious injury if done by a public servant acting in good faith under the pretence of their official duties, even if the act may not be strictly justifiable by law.
However, a person is not deprived of the right to defend themselves against an act by a public servant unless they know or have reason to believe that the attacker is a public servant or is acting under the direction of a public servant (explained in Section 99).
The distinction between Illegal Acts and Acts Not Strictly Justifiable by Law
There is a distinction between completely illegal acts (ultra vires) and acts that may not be strictly justifiable by law (irregular acts). In a situation where the police illegally arrested a person, and certain villagers, to rescue that person, launched an attack on the police only after a constable had fired at them, it was held that the villagers acted to exercise their right of private defence. The firing by the constable caused a reasonable fear of death or serious injury in their minds. However, if a police officer, acting in good faith under the authority of his office, arrests a person without proper authority, the person being arrested has no right to self-defence against the officer.
Absence of Right of Defence When Time for Recourse to Public Authorities Exists
There is no right of defence in situations where there is sufficient time to seek the protection of public authorities. However, this does not mean that a person must run away to seek public authorities’ help when attacked instead of defending themselves.
Limitation on Inflicting Harm
The right of private defence does not extend to causing more harm than is necessary for defence. Section 100 lists six serious acts of aggression that authorize the defender to even cause the assailant’s death. These acts include reasonable fear of death or serious injury, assault to commit rape or unnatural lust, kidnapping and abduction, or wrongfully confining a person. In other cases, the defender may cause harm other than death (Section 101).
In cases where there is a reasonable fear of death if the defender is in a situation where exercising the right of self-defence would risk harm to an innocent person, they may even choose to take that risk (Section 106). For example, if a mob attacks a person and cannot use a firearm without the risk of harming young children who are mixed within the mob.
Commencement and Continuation of Right of Self-Defence
According to Section 102, the right of self-defence begins as soon as there is a reasonable fear of danger to the body and continues as long as that fear persists, even if the offence itself has not been committed.
Therefore, if the accused continues to assault the victim after falling and are no longer a threat, the right of private defence would not be available. Similarly, if a group of individuals strangle a thief and subject him to severe mistreatment when he is completely under their control, the right of private defence would not be justified.
Private Defence of Property
Every person has the right to defend their property or the property of others against theft, robbery, mischief, criminal trespass, or any attempt to commit such acts (Section 97). This right also applies when dealing with individuals who are mentally incapacitated, minors, intoxicated persons, or those acting under a misconception of fact (Section 98).
However, the right of private defence of property is subject to certain limitations as specified in Section 99.
The right of private defence of property comes into effect when there is a reasonable apprehension of danger to the property. It continues under the following circumstances:
- In cases of theft, until the offender has escaped with the property, until the assistance of public authorities is obtained, or until the property is recovered.
- In robbery cases, as long as the offender causes or attempts to cause death, hurt, or wrongful restraint, or as long as there is a fear of immediate death, hurt, or personal restraint.
- In cases of criminal trespass or mischief, as long as the offender continues to commit such offences.
- In cases of house-breaking by night, as long as the trespassing continues. However, if a person follows a thief and kills them in the open after the house-trespass has ended, they cannot claim the right of private defence (Section 105).
Section 103 lists the specific cases where the right of private defence extends to causing the wrongdoer’s death. These cases include:
- House-breaking by night
- Mischief by fire to a building, tent, or vessel used as a dwelling or for property custody
Theft, mischief, or house trespass under the circumstances causing a reasonable apprehension of death or grievous hurt. In other cases, the right of private defence extends to causing harm other than death (Section 103-104).
The Indian Penal Code provides several general exceptions that safeguard individuals who may have acted under certain circumstances that mitigate or negate criminal liability. The general exceptions in IPC include mistakes of fact, judicial acts, accidents, absence of criminal intention, acts done by consent, trifling acts, and the right of private defence.
Attention all law students!
Are you tired of missing out on internship, job opportunities and law notes?
Well, fear no more! With 45,000+ students already on board, you don't want to be left behind. Be a part of the coolest legal community around!
Join our WhatsApp Groups (Click Here) and Telegram Channel (Click Here) and get instant notifications.