HANDLING OF EXCEPTIONS IN CRIMINAL LAW
The Article is written by Kinkini Chaudhuri ( working as a PR member at Rotaract Club of North Calcutta)
Table of Contents
The word “General” means any act, whether civil or criminal and the word “Exception” means those acts which are not criminally liable. The exceptions are clearly mentioned down in Chapter IV under Sections 76 to 106 of Indian Penal Law, 1860. This exempts a person from criminal liability. This means that even though a person might have the required actus reus and mens rea, the person will not be criminally liable if his act falls within one of the Sections mentioned down under Chapter IV.
Some exceptions are well mentioned in a civil case, like under Article 361 of the Constitution, the President of the country or the Governor of the State will not be held liable to answer in any courts for the matters pertaining to the performance and exercise of their powers and duties of their office.
The general exceptions are applicable to both IPC and non-IPC offences. The exceptions can be divided into two broad categories, namely excusable and justifiable. The word excusable means a group of people who are not held guilty, like the example of Article 361, where the President of the country, the Governor of the State will not be held liable to answer to any court during the colour of their office. The word justifiable means those who are not held guilty of their acts due to certain circumstances. Acts of an insane person or of infants or by an intoxicated person, or acts done under the mistake of fact are some examples of the first category, whereas acts done under the private defence of body or property will fall under the second category
Mistake of fact is mentioned under Sections 76 and 79 of the Indian Penal Code, 1860.
Acts did 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.
An 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.
From the above statements, it can be well understood that mistake is an exception to criminal liability. Section 76 states that if a person does some act under a mistake of fact, in good faith, and he believes himself to be bound by law in doing it, then his actions will not be criminally liable.
Section 79 mentions that if a person, by mistake of fact, and not by mistake of law, in the presence of good faith believes his act is justified by law. In other words, under Section 76, there is a compulsion, and under Section 79, the person thinks his act to be bound by law.
There is a very common legal maxim, ignorentiafacti doth excuseat, ignorentia juris non excuseat. The above maxim means that ignorance of fact is an excuse, whereas, ignorance of the law is no excuse.
Many people say that it is quite impossible for anyone to know all the laws thoroughly, and thus people should be excused for ignorance of the law if committed in a bonafide manner. But, the law does not allow this, the reason being that if everyone pleads that they had committed the wrong then the number of wrongs committed in the society will soar up tremendously.
Also, it is bound for all to know the law. If people commit those wrongs, for which they are bound to know the law, then he will not be excused. Also, it can lead to innumerable compilations, as it is very difficult to find out whether the person had actually committed the wrong in a good faith. Lastly, if this continues, the importance of law will start to fade. Therefore, even if a person commits a mistake of law, though in a bonafide manner, then the person will be held guilty. However, it may operate as a mitigating factor.
Even though, it is quite disturbing to know that majority of the population is unaware of the important laws. It has been discovered that even those who are educated and literate and found to be unaware.
In case of a mistake of fact, there is no existence of mens rea, which means that there is no existence of criminal intention. The mistake that has been committed by the person must be of material facts, which means that the facts essential constitute the offence allegedly committed by the accused. The person must have the facts unknown to him. Eg: If a man fires at a bush at midnight, unknown to him, and if it kills a person then he will not be held liable as the fact that a person was hiding behind the bush was unknown.
The legal maxim, ignorentiafacti doth excuseat has two reservations. Firstly, it cannot be pleaded by one of the facts that would have been extracted by proper enquiries. Eg: A man kidnaps a girl, who is below 18 years of age, without the consent of neither of her parents. But, the person believes that the girl is above 18 years of age, without any enquiries. In this case, the person will be held liable under Section 361 of IPC, 1860. Secondly, a person cannot plead that an actus was reus without any sort of reference to mens rea, as in the beginning, the mind has to be guilty, only then the act will be guilty.
Those acts were done by mistake of fact, in good faith, then those acts will be protected from criminal liability, as mentioned under Section 76 of IPC, 1860. Illus.: A soldier’s action will be protected under Section 76 as he was asked to fire at the mob by the order of his superior. Another example would be if a police officer arrests person A, instead of person B, after due enquiry, then the act of the police officer will fall under Section 76.
Section 43 of IPC, 1860 mentions the term “legally bound to do” which means if those acts, which was bound by a person to do, then the person will be accused of criminal liability.
One must remember that all acts are done which are orders of the superior will not be protected under Section 76. Illus.: If police shoot a person according to the orders of his superior, will be held liable, as it was well known that the order was illegal. The person can avail of the protection of Section 76 only by showing necessary evidence that he had fallen under a hasty situation.
In the case of Dakhi Singh v State, the accused arrested the deceased who was suspected of being a thief, and the deceased had resisted the arrest. The accused had used force, which had resulted in his death. Section 46 of CrPC mentions that a police officer can use all means to arrest, but does not give the right to cause the death of a person, which can lead to imprisonment of life. Therefore, it was held that since the person was only accused of theft, Sections 76 and 79 did not justify shooting the person dead.
Those arrests are protected where warrants are issued by a court. Therefore, if a police officer arrests a wrong person, the officer will not be held liable, only if the search was conducted with good intent. But, if the police officer procures the arrest warrant maliciously, then the officer will not get the protection.
One important point to be remembered is that private persons, who are bound to abet the police under Section 37 of CrPC, will also get the protection of Section 76 of IPC, 1860.
Section 79 mentions those acts which are justified by law or are believed with good faith to be a mistake of fact to be justified by law.
In the case of Kiran Bedi and Jinder Singh v Committee of Inquiry, a lawyer was apprehended by the students of St. Stephens College, University of Delhi, and was handed over to the police alleging of committing an offence on the campus. The lawyer was handcuffed by the police officer and was produced before the court.
Many lawyers had protested the act of handcuffing, the police officer was ignorant of it. But, the lawyer was discharged on the very same day, and the court had asked the Commissioner of Police to take any action against the guilty officials. The petitioner had also made a press statement, justifying the acts done by the police and had criticised the order of the magistrate. It was alleged that instead, the petitioner ordered a lathi charge against the lawyers. The lawyers had also demanded indefinite strikes demanding a judicial enquiry. It was also discovered that a mob, that was engineered by the petitioner had attacked the court, where many of the lawyers were injured, and many properties were destroyed. After this, a Commission of Enquiry was constituted, which was headed by a two-Judge bench of the Delhi High Court.
The term good faith means those acts done with a good intent of where a bonafide intent is present. It is one of the essential ingredients mentioned under Sections 76 and 79 of IPC, 1806. The term good faith is defined under Section 56, which reads as under: “Nothing is said to be done or believed in ‘good faith’ which is done or believed without due care and intention”. The definition defined here is negative in nature. Where the term “Good Faith” has not been defined, Section 3 of the General Clauses Act, 1897, is followed, which reads as under: “A thing shall be deemed to be done in ‘good faith’ where it is in fact done honestly, whether it is done negligently or not”. If we look carefully, we will be able to identify that the element of honesty is not present.
One important thing to be considered here is that the phrase “Due care and attention” depends upon three factors, namely, the nature of the act that is committed by the accused, secondly, the magnitude and importance and thirdly the facility a person has for the exercise of the care and attention.