The criminal law provides various punishments which vary from case to case. But it’s not always necessary that an individual gets punished for a crime which he/she has committed. When IPC was drafted, there were no exceptions in criminal cases which was seen as a big loophole. So, a separate Chapter IV was introduced. Chapter IV of the Indian Penal Code, 1860 defines “General Exceptions”. Section 76 to 106 covers these exceptions which are based on the presumption that a person will not be liable for the crime committed. General Exception are classified into 2 categories:
- Excusable Acts
An excusable act is the one in which a person who causes harm cannot be punished for the act as he/she does not possess the mens rea. For eg. if a person is intoxicated against his/her will and then that person commits any crimes, then he/she will not be punishable as they do not have the mens rea. They include:
(i) Mistake of Fact and Law (Section 76 & 79)
(ii) Accident (Section 80)
(iii) Infancy (Section 82 & 83)
(iv) Insanity (Section 84)
(v) Intoxication (Section 85 & 86)
- Justifiable Acts
A justifiable act is the one which would have been wrongful under normal circumstances but the circumstances under which it was committed makes it acceptable. They include:
(i) An act of Judge and Act performed in pursuance of an order (Section 77 & 78)
(ii) Necessity (Section 81) (v) Duress (Section 94)
(iii) Consent (Section 87-91) (vi) Trifles (Section 95)
(iv) Communication (Section 93) (vii) Private Defence (Section 96-106)
- Mistake of Fact & Law (Section 76 & 79)
It is based on 2 legal maxims:
- ‘Ignorantia facti doth excusat’- Mistake of Fact is excusable
- ‘Ignorantia juris non excusat’- Mistake of Law is not excusable
According to these sections, a person can be excluded from conviction if he does an act under mistake of fact and not under mistake of law, and in good faith believing that it is justified by law.
- Accident (Section 80)
Accident means an act done by a person over which he/she does not have any control even after taking proper care and precautions. Misfortune means bad luck. According to this section, a person cannot be punished for an act done in an innocent and lawful manner. Law does not intend to punish a person for things over which he/she could possibly have no control.
- Infancy (Section 82 & 83)
According to Section 82, a child below 7 years of age gets immunity from criminal liability. It is based on the legal maxim of ‘doli incapax’. According to this legal maxim, a child below cannot be held guilty for any offence because it is believed that he/she cannot understand the nature and consequences of the act and do not possess the required mens rea.
According to this Section 83, children above 7 years of age and below 12 years of age get partial immunity from criminal liability. It is based on the legal maxim of ‘doli incapex’ which means a child above 7 years of age and below 12 years of age is able to understand the nature and consequences of the act which he/she is committing. To hold the child liable the prosecution needs to prove beyond the reasonable doubt that mens rea was present.
- Insanity (Section 84)
According to Section 84, a person cannot be held liable for the crime committed, provided that at the time of the crime he was insane, because he/she does not possess the required mens rea to commit the crime.
- Intoxication (Section 85 & 86)
Intoxication is a state of mind in which a person is not able to understand the nature of the act which he/she is doing. These sections provide immunity to the intoxicated person provided that intoxicated thing was given to them against their knowledge or will. If a person voluntarily intoxicates themselves and then commits a crime then he/she cannot claim the defence under these two sections.
- An act of Judge and Act performed in pursuance of an order (Section 77 & 78)
According to Section 77, any act which is done by the judge while acting judicially, which he/she in good faith believes to be given to him/her by law, is no offence.
According to Section 78, if any act is done by an individual in furtherance of order of a Court, then he/she will be protected under this section.
- Necessity (Section 81)
This section provides immunity to the person who does any act, in good faith, and without criminal intention, to prevent greater harm.
Case: R vs Dudley and Stephens
In this case, a ship consisting of four people, got stuck in a storm on the high seas and was compelled to use a lifeboat. Due to the storm, there was a shortage of food on the ship and the people on the ship started feeling hungry. As a result, 2 out of the four men decided to kill one person to satisfy their hunger. The court held the seamen liable for murder because they killed an innocent person to save their own life.
- Consent (Section 87-91)
According to Section 87, an act not intended or known to be likely to cause death or grievous hurt, which causes any harm to a person above 18 years of age who has given consent (either expressly or impliedly) to suffer is not an offence. It is based on the principle of Volenti Non-Fit Injuria which means who consents cannot complain.
According to Section 88, any act done in good faith for the victim’s benefit with the victim’s consent is not an offence. It protects doctors and surgeons who perform surgeries.
Section 89, protects the person who does any act in good faith for the benefit of child or insane person or by consent of guardian.
Section 90, defines the word “Consent”. According to this section, the consent will not be consent if:
- If it is given under fear of injury
- If it is given under misconception of fact
- If it is given by a child below 12 years of age
- If it is given by the person who is unsound or intoxicated, and unable to understand the nature and consequences of the act.
- Communication (Section 93)
This section protects the person who communicates the information which causes harm, in good faith, for the person’s benefit.
- Duress (Section 94)
When a person is compelled to do any act which constitutes an offence, then the person can avail the defence of Duress. This defence is not available in the case of murder and offences which involves death penalty.
For eg. If a security personnel is attacked by armed robbers and if he is forced to open the bank door and if the armed robbers steal the bank, then the security man can claim the defence of duress.
- Trifles (Section 95)
According to this section, if any person causes harm (even with intention or knowledge) and the harm so caused is so slight that any ordinary person would not complain of such harm, it will not be an offence.
- Right of Private Defence (Section 96-106)
Although, the central government and state governments are vested with the responsibility to protect the citizens against dangerous acts. But there are certain provisions which allow a person to use reasonable force to protect himself/herself or his/her property.
According to Section 96, nothing will be an offence if it is done to protect himself/herself.
According to Section 97, the person has the right to defend his/her property (moveable or immoveable) or of any other person against the offence or attempt of:
- Theft
- Robbery
- Mischief
- Criminal Trespass
According to Section 98, for the purpose of exercising the right of private defence the mental or physical capacity of the attacker is no bar.
Section 99 lays down certain restrictions on the right of private defence. The right of private defence will not be available if:
- There is no apprehension of death or grievous hurt.
- The person known or is under the belief that the person who is doing the act is a public servant.
- The person knows or is under the belief that the person is doing the act under the direction of a public servant.
- Sufficient time is available to have recourse of protection of public authority.
Section 100 lays down six acts of aggression, which are so serious in nature, that the law gives the power to the defender to even cause death of the criminal. The Six acts of aggression are:
- Assault causing apprehension of death.
- Assault causing apprehension of grievous hurt.
- Assault with the intention to commit rape.
- Assault with the intention to gratify unnatural lust.
- Assault with the intention of kidnapping or abducting.
- Assault with the intention to wrongfully confine an individual.
According to Section 101, if the offence is not of any descriptions which are enumerated within the last section, then the defender can cause any harm aside from death.
According to Section 102, right of private defence will be available as soon as a person apprehends there is a danger to his/her body and continues as long as such apprehension continues (even if the offence has not been committed).
According to Section 103, the right of private defence of property extends to causing death of the criminal, under the subsequent circumstances:
- Robbery
- House Breaking by Night
- If there is any Mischief by fire on any building
- If any mischief is caused by fire on any of the buildings.
- Theft, house trespass or mischief
Under such circumstances causing death or grievous hurt will be the consequences.
According to Section 104, if there is a threat to the property other than which are mentioned in the previous section, then the person cannot exercise his/her right of private defence to cause the death of the other person. However, the person can exercise his/her right of private defence to cause any other harm other than death to the person who is causing damage to the property.
According to Section 105, the right of private defence of property commences as soon as the person apprehends there is a danger to the property and the right continues:
- Against Theft, till the wrongdoer has withdrawn himself/herself from the property, if police assistance is obtained or the property has been recovered.
- Against Robbery, as long as the wrong does cause or attempts to cause death, hurt or wrongful restraint or if the fear of death, hurt or wrongful restraint continues.
- Against criminal trespass or mischief, till the wrongdoer continues to do such act.
- Against house breaking by night, till the offence of house trespass continues.
According to Section 106, if there is reasonable apprehension of death, if the defender is in a situation that he cannot exercise the right without risk or harm to an innocent person then he/she can even run that risk.
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