76. Act
done by a person bound, or by mistake of fact believing himself bound, by
law
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.
Illustrations
(a) 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.
(b) A, an officer of a Court of Justice, being ordered by that Court to
arrest Y, and, after due enquiry, believing Z to be Y, arrests Z. A has
committed no offence.
77. Act of Judge when acting judicially
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.
78. Act done pursuant to the judgment or order of Court
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.
79. Act done by a person justified, or by mistake of fact believing
himself justified, by law
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.
Illustration
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.
80. Accident in doing a lawful act
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.
Illustration
A is at work with a hatchet; the head flies off and kills a man who is
standing by. Here, if there was no want of proper caution on the part of
A, his act is excusable and not an offence.
81. Act likely to cause harm, but done without criminal intent, and to
prevent other harm
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.
Explanation. --It is question of fact in such a case whether the harm to
be prevented or avoided was of such a nature and so imminent as to justify
or excuse the risk of doing the act with the knowledge that it was likely
to cause harm.
Illustrations
(a) A, the captain of a steam vessel, suddenly and without any fault or
negligence on his part, finds himself in such a position that, before he
can stop his vessel, he must inevitably run down to boat B, with twenty or
thirty passengers on board, unless he changes the course of his vessel,
and that, by changing his course, he must incur risk of running down a
boat C with only two passengers on board, which he may possibly clear.
Here, if A alters his course without any intention to run down the boat C
and in good faith for the purpose of avoiding the danger to the passengers
in the boat B, he is not guilty of an offence, though he may run down the
boat C by doing an act which he knew was likely to cause that effect, if
it be found as a matter of fact that the danger which he intended to avoid
was such as to excuse him in incurring the risk of running down the boat
C.
(b) A, in a great fire, pulls down houses in order to prevent the
conflagration from spreading He does this with the intention in good faith
of saving human life 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.
82. Act of a child under seven years of age
Nothing is an offence which is done by a child under seven years of
age.
83. Act of a child above seven and under twelve of immature
understanding
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.
84. Act of a person of-unsound mind
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.
85. Act of a person incapable of judgment by reason of intoxication
caused against his will
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 a against his will.
86. Offence requiring a particular intent or knowledge committed by one
who is intoxicated
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.
87. Act not intended and not known to be likely to cause death or
grievous hurt, done by consent
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 eighteen 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.
Illustration
A and Z agrees 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.
88. Act not intended to cause death, done by consent in good faith for
person's benefit
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.
Illustration
A, a surgeon, knowing that a particular operation is likely to cause
the death of Z, who suffers under a 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.
89. Act done in good faith for benefit of child or insane person, by or
by consent of guardian
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:
Provisos-Provided-
First- That this exception shall not extend to the intentional causing of
death, or to the attempting to cause death;
Secondly- 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;
Thirdly- 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;
Fourthly- That this exception shall not extend to the abetment of any
offence, to the committing of which offence it would not extend.
Illustration
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.
90. Consent known to be given under fear or misconception
A consent is not such a consent as it 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
Consent of insane person-
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
Consent of child-
unless the contrary appears from the context, if the consent is given by a
person who is under twelve years of age.
91. Exclusion of acts which are offences independently of harm caused
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.
Illustration
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.
92. Act done in good faith for benefit of a person
without consent
Nothing is an offence by reason of any harm which 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 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:
Provisos- Provided-
First- That this exception shall not extend to the intentional causing of
death, or the attempting to cause death;
Secondly- 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;
Thirdly- 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;
Fourthly- That this exception shall not extend to the abetment of any
offence, to the committing of which offence it would not extend.
Illustrations
(a) 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.
(b) Z is carried off by a tiger. A fires at the tiger knowing it to be
likely that the shot may kill Z, but not intending to kill Z, and in good
faith intending Z’s benefit. A's ball gives Z a mortal wound. A has
committed on offence.
(c) A, a surgeon, sees a child suffer an accident which is likely to prove
fatal unless an operation be immediately performed. There is no time to
apply to the child's guardian. A performs the operation in spite of the
entreaties of the child, intending, in Good faith, the child's benefit. A
has committed no offence.
(d) A is in a house which is on fire, with Z, a child. People below hold
out a blanket. A drops the child from the housetop, knowing it to be
likely that the fall may kill the child, but not intending to kill the
child, and intending, in good faith, the child's benefit.Here, even if the
child is killed by the fall, A has committed no offence.
Explanation- Mere pecuniary benefit is not benefit within the meaning of
sections 88, 89 and-92.
93. Communication made in good faith
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.
Illustration
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.
94. Act to which a person is compelled by threats
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.
Explanation 1- A person who, of his own accord, or by reason of a threat
of being beaten, joins a gang of dacoits, knowing their character, is not
entitled to the benefit of this exception, on the ground of his having
been compelled by his associates to do anything that is an offence by law.
Explanation 2- A person seized by a gang of dacoits, and forced, by threat
of instant death, to do a thing which is an offence by law; for example, a
smith compelled to take his tools and to force the door of a house for the
dacoits to enter and plunder it, is entitled to the benefit of this
exception.
95. Act causing slight harm
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.
Of the Right of Private Defence
96. Things done in private defence
Nothing is an offence which is done in the exercise of the right of
private defence.
97. Right of private defence of the body and of property
Every person has a right, subject to the restrictions contained in
section 99, to defend-
First- His own body, and the body of any other person, against any offence
affecting the human body;
Secondly- 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.
98. Right of private defence against the act of a person of unsound
mind, etc.
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.
Illustrations
(a) 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.
(b) A enters by night a house which he is legally entitled to enter Z, in
good faith, taking A for a house-breaker, attacks A. Here Z, by attacking
A under this misconception, commits no offence. But A has the same right
of private defence against Z, which he would have if Z were not acting
under that misconception.
99. Acts against which there is no right of private defence
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 acting in good faith under
colour of his office, though that act, may not be strictly justifiable by
law.
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 the direction of a public servant acting in
good faith under colour of his office, though that 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 the protection of the public authorities.
Extent to which the right may be exercised-
The right of private defence in no case extends to the inflicting. of more
harm than it is necessary to inflict for the purpose of defence.
Explanation 1- A person is not deprived of the right of private defence
against an act done, or attempted to be done, by a public servant, as
such, unless he knows or has reason to believe, that the person doing the
act is such public servant.
Explanation 2- A person is not deprived of the right of private defence
against an act done, or attempted to be done, by the direction of a public
servant, unless he knows, or has reason to believe, that the person doing
the act is acting by such direction, or unless such person states the
authority under which he acts, or if he has authority in writing, unless
he produces such authority, if demanded.
100. When the right of private defence of the body extends to causing
death
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:-
First- Such an assault as may reasonably cause the apprehension that death
will otherwise be the consequence of such assault;
Secondly- Such an assault as may reasonably cause the apprehension that
grievous hurt will otherwise be the consequence of such assault;
Thirdly- An assault with the intention of committing rape;
Fourthly- An assault with the intention of gratifying unnatural lust;
Fifthly- An assault with the intention of kidnapping or abducting;
Sixthly- 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.
101. When such right extends to causing any harm other than death
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.
102. Commencement and continuance of the right of private defence of
the body
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.
103. When the right of private defence of property extends to causing
death
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:-
First- Robbery;
Secondly- House-breaking by night;
Thirdly. - 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;
Fourthly- 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.
STATE AMENDMENTS
State of Karnataka :
[Vide Karnataka Act No. 8 of 1972, section 2, (w.e.f. 7th. October,
1972)].
(1) In clause Thirdly,-
(i) after the words "mischief by fire", the words "or any
explosive substance" shall be inserted;
(ii) after the words "as a human dwelling, or" insert the words
"as a place of worship, or".
(2) After clause Fourthly, the following clause shall be inserted,
namely:-
"Fifthly- Mischief by fire or any explosive substance committed on
any property used or intended to be used for the purpose of Government or
any local authority, statutory body or company owned or controlled by
Government or railway or any vehicle used or adapted to be used for the
carriage of passengers for hire or reward".
State of Maharashtra :
[Vide Maharashtra Act No. 19 of 1971, section 26, (w.e.f. 31st. December,
1971)].
In section 103, add the following at the end, namely:-
"Fifthly- Mischief by fire or any explosive substance committed on
any property used or intended to be used for the purposes of Government or
any local authority, statutory body, company owned or controlled by
Government, railway or tramway, or on any vehicle used or adapted to be
used, for the carriage of passengers for hire or reward".
State of Uttar Pradesh :
[Vide U.P. Act No. 29 of 1970, section 2 (w.e.f. 17th. July, 1970)].
In section 103, after clause fourthly, add the following clause, namely:-
"Fifthly- Mischief by fire or any explosive substance committed on-
(a) Any property used or intended to be used for the purpose of
Government, or any local authority or other corporation owned or
controlled by the Government, or
(b) any railway as defined in clause (4) of section 3 of the Indian
Railways Act, 1890 or railways stores as defined in the Railways Stores
(Unlawful Possession) Act, 1955, or
(c) any transport vehicle as defined in clause (33) of section 2 of the
Motor Vehicles Act. 1939."
104. When such right extends to causing any harm other than death
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.
105. Commencement and continuance of the right of private defence of
property
The right of private defence of property commences when a reasonable
apprehension of dancer to the property commences.
The right of private defence of property against theft continues till the
offender has effected 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 or 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.
106. Right of private defence against deadly assault when there is risk
of harm to innocent person
If in the exercise of the right of private defence against an assault
which reasonably causes the apprehension of death, the defender be 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.
Illustration
A. is attacked by a mob who attempt 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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