CHAPTER IV OF IPC

GENERAL EXCEPTIONS
CONDITIONS NEGATING CRIMINAL
LIABILITY
PROF. S.M. AAMIR ALI
Introduction
 The framers of the Penal Code decided to put all cases of general exceptions in chapter 4 of the code
commencing from sections 76 to 106 to obviate the necessity of repeating in every penal clause a
considerable number of limitations. Every definition of an offence, every penal provision, and every
illustration of a definition under the penal Code, shall be construed subject to the provisions
contained in this chapter.
 The scope of general exceptions provided in this chapter is very wide as it extends to the offences
under the special or local laws as well.
 Chapter 4 of the code consists of 31 sections. But the main principle which they illustrate may be
grouped into 8 heads, viz., -
i. Mistake of fact and mistake of law (Sections 76, 79);
ii. Act of Judge (Sections 77,78);
iii. Accidental acts (Sections 80);
iv. Necessity (Section 81);
v. Incapability to commit a crime (Sections 82 to 86);
vi. Acts done with consent (Sections 87-90); or without consent (Section 92);
vii. Triviality (Section 95); and
viii. Private defence (Sections 96-106).
1. Mistake of Fact
 A mistake of fact is a defence that the accused made an honest mistake that led
to the breaking of the law.
 “Mistake is “an unconsciousness or ignorance of facts material to the
transaction, or the belief of facts material to the transaction which turn out to
not be true”
 Absence of foreseeability and consequences
 Ignorance of facts is an excuse as it precludes the accused from forming the
required mens rea” – Halsbury’s Law of England
 Mistake can be an extenuating factor when:
1. Stage of things believed to exist would if true have justified the act done.
2. That the mistake must be reasonable + in good faith.
3. Mistake must relate to fact and not to law
Bound and justified by Law
 Section 76:person bound by law + by mistake of fact believing himself to be
bound by law + in good faith (legal compulsion)
 State of west Bengal v Shew Mangal Singh AIR 1981 SC 1917 - Circumstances
which when proved, makes acts complained of not an offence; Command must
be lawful & Reasonable; Reasonableness – to be viewed from ‘actor’s
situation perspective’
 Section 79: justified by law or by mistake of fact believing himself to be
justified by law + in good faith (legal justification)
 Raj Kapoor v Laxman AIR 1980 SC 605 – Prosecution u/s 292 IPC,
Certification by censor board justified public exhibition. Court held that “a
forbidden act not guilty act if law itself declares that in certain special
circumstances it is not regarded an offence”
 Main Ingredient – Good Faith
 Re Ganpathia Pillai AIR 1953 Mad 936 – good faith requires due care and
caution which must be considered with reference to general circumstances.
 State of Orrissa v Ram Bahadur Thapa AIR 1960 Ori 161- ruling on standard of
care and caution – Desribed how to judge good faith. “the standard of care and
caution must be judged according to the capacity and intelligence of the person
whose conduct is in question. It is only to be expected that the honest conclusion of
a calm and philosophical mind may differ very largely from the honest conclusions
of a person excited by sectarian zeal and untrained to the habits of reasoning:

Degree of Capacity,
Due Care and
Good Faith reasonableness Intelligence and
Attention
in care Circumstances
2. Judicial Act
 Objective: Ensure Independence and discharge of duties without fear of
consequences.
 Section 77:
i. Act of Judge when acting judicially.
ii. Exemption for judicial acts of a judge judicially in exercise of his power or acting in
good faith and believing that such power is given by law
iii. Act must have been done in discharge of official duties : (includes judgments,orders
and decrees)
iv. They must be within his jurisdiction
v. Must be performed in good faith
 Ram Pratap Sharma v Dayanand AIR 1977 SC 809- Protective umbrella not to be
used by bringing contempt charges) Exemption is not available in case of irregular
exercise of power or excessive .use of jurisdiction
 Section 78: - protection to officers acting under authority of a judgment, or order of a
court of justice. Exemption in act done pursuant to judgment or order of court
 Provided Act done in good faith + Belief in the legality of the court order
 Protection is given even in respect of a defective or invalid order of a court
 Ex. Police executing search warrant (gambling act) though the warrant is defective in law
and illegal
3. Accident
 Section 80: Statutory recognition to common law doctrine of mens rea, that there can be
no crime without a criminal intention. The object of the repression of crime is to
preserve order and peace in human society, and it is, therefore only against human
beings who are its component members that criminal law is directed.
 Ingredients: Act is done by –
i. Accident or misfortune
ii. Without any criminal intention or knowledge (Absence of intention and Circumstance
leading to mistake - State Government of MP v Rangaswamy AIR 1952)
iii. In a lawful act, in a lawful manner and
iv. by lawful means
v. With proper care and caution.
Eg: Injury during sports and Games
 4. Necessity
 “The defence of necessity occurs when a person is forced to act in criminal manner due to
dangerous circumstances in order to prevent a worse evil from occurring”. To commit a crime to
escape imminent threat”
 It is an immunity to acts committed under compelling circumstances. Choose between two evils:
Choose the lesser evil.
 Principles: Quod necessitas non habet leegem’ i.e. necessity has no law. (words of law is not
breaking the law so long as the intent of the law is not broken. ) -Thomas Acquina’s ‘limits of
legislations’.
‘Necessitas vinict legem’ i.e necessity overcomes the law
 Essentials: Sec. 81 gives legal protection to the doctrine of salvage i.e. self- preservation.
i. The act must have been done without any criminal intentiton to cause harm;
ii. Act done in good faith to avoid other harm to person or property
iii. The harm must have been done to avert greater harm
R v. Dudley Stephens, the court held that no necessity justifies private homicide and no man has the
right to take other’s life to preserve his own life, unless it is in self defense.
5. Act of Child
 Section 82 exempts a child under 7 years of age from criminal liability ‘doli in capax’ –
absolute immunity.
 Section 83 exempts act of a child above 7 years and under 12 years- qualified immunity.
 Child should not have attained sufficient maturity of understanding to judge the nature and
consequences of his conduct.
 8 years child picks up a necklace of Rs. 500/- from his friend’s house and sells for Rs. 50 ,
child have sufficient maturity to understand the consequences of the act – no protection from
theft under section 378. – Hiralal Mallick v. State of Bihar.
6. Insanity
 Disorder of mind which impairs the cognitive ability of a person that is reasoning
capacity to such an extent to render him incapable to understand the nature and
consequences of his act.
 Based on doctrines –
i. “furious nulla voluntus est” - a mad man is like one who is absent
ii. “furiosus furor sub puniter”- ‘ a mad man is punished by his madness only’
 A person is unfit to stand the trial due to unsound mind. Insanity exempts criminal
liability in respect of acts of a person of unsound mind. (non compos mentis). Insanity is
always a possible defence but not a certain defence.
Right and Wrong Test: M’Naghten’s case

A person is
always Disease of Defect of
Incapable to
presumed Mind (Legal) reason
sane
• Know nature of
the act
• Wrong from right

 Not knowing nature of act- that he did not know what he was doing, that
he did not appreciate (realize) the circumstances in which he was acting
and he did not appreciate the consequences of his act (no mens rea)

 Not knowing that his act is wrong or contrary to law- simply he did
not know what he was doing was wrong. (mens rea)
eg: A killing an ailing wife by giving poison, morally right but legally wrong. Now if
accused says “I might be hanged for it” then it shows that he knew act
was wrong.
Legal Insanity
 Hari Singh Gond v State of M.P 2008, 16 SCC – Only legal insanity recognized under law
 Legal insanity means person suffering from mental illness should have loss of reasoning
power. Mental state at the time of committing crime.
 Ingredients:
i. No knowledge of the nature of the act;
ii. Accused was precluded by reason of unsoundness of mind from understanding that what he
was doing was either wrong or contrary to law.
Shrikant Anandrao Bhosale v. State of Maharashtra - case of paranoid schizophrenia.
Surendra Mishra v. State of Jharkhand - The supreme court held that an accused who seeks
exoneration from criminal liability of an act under section 84 is to prove legal insanity and not
medical insanity. Nearly because the accused is conceited, odd and his brain is not alright, all
that the mental of physical ailments from which he suffered has rendered his intellect work and
attacked his emotions or indulges in certain unusual acts, or has fits of insanity is not sufficient
to attract section video 84 IPC.
 Ashiruddin v King Emp AIR 1949 Cal 182 –
Two different mental condition:
i. Incapable of knowing the nature of act – (covers two situations, namely, involuntary actions
and mistake of fact on account of unsoundness of mind)
ii. Preclusion by reason of unsoundness of mind from understanding that what he was doing
was either wrong or contrary to law (covers those situation where a person by reason of
delusion is unable to appreciate the distinction between right and wrong)
 Dayabhai Chhaganbhai Thakkar v State of Gujrat AIR 1964 SC 1563 –
Court held “the court has to consider the circumstances which preceded, attended and
followed the crime.”
7. Intoxication
 Section 85: Essential- General Rule
i. Involuntary intoxication – Intoxicating item must be administered without knowledge or
against will
ii. Involuntary intoxication led to defect in reasoning power making him.her-
• incapable to know the nature of the act, or
• inability to differentiate between right and wrong or contrary to law, and
 Scope of 85- Bablu v State of Rajasthan AIR 2007 SC 697 – 3 Propositions with regard to
scope of s. 85 - statutory implication found in s. 86.
i. Insanity produced by drunkenness is a defence to a criminal charge
ii. Specific intent evidence should be collated from other fact
iii. Presumption that a person intends the natural consequences of his acts
Implication of Section 85
 Section 86: Presumption of knowledge in voluntary intoxication
 QUI PECCAT EBRIUS, LUAT SOBRIUS i.e. one who sins when drunk, should be
punished when he is sober.
 Basudev v State of PEPSU – AIR 1956 SC 488 - Meaning of Knowledge and intention in
intoxication– “So far as knowledge is concern law must attribute same knowledge as he
was quite sober. But so far as intention or intent is concerned, the court must gather it from
the attending general circumstances of the case paying due regard to the degree of
intoxication.
 Voluntary drunkenness can protect an individual in two cases:
i. Specific intent crimes – DPP v Beard 1920 AC 479, DPP v Majewski1976 2A ALL ER
142 (crime of basic and specific intent distinguished) Shankar Jaiswara v state of W.B.
2007 9 SCC 360. But even if a person fails to form the specific intent, liability for basic
intent crime can be imputed by section 86 (punishment not amounting to murder)
ii. Diseased min – For Example – Delirium Tremens
8. Consent
 Meaning: Act done Deliberately + by Free will
 Roa Harnarain Singh v. State AIR 1958 Punj. 123, “Consent involves Deliberate
exercise of intelligence based on knowledge of the significance and moral effect of act”
consent therefore obtained by intimidation, force, mediated imposition, circumvention,
undue influence or surprise are delusion and not a deliberate or free act of Mind” in
consonance with section 90
 Uday v State of Karnataka (2003) 4 SCC 46 AIR 2003, SC 1639 (Promise to marry),
“Consent is an act of reason, accompanied with deliberation, the mind weighing, as in
balance, the good and evil on each side”
 Vijayan Pillai v State of Kerela 1989,,CrLJ 202 Ker: Provided the ingredients of consent
a. a physical power; b. a mental power; and c. free and serious use of them.
 Mere knowledge of risk involved does not amount to consent.
 Section 87: Ingredients –
 1. Absence of intention
• Section 87 premised on 2 simple proposition – a: that every person is the best judge of his
own interest and b: that no person will consent to what he thinks hurtful to himself
 2. Express and implied consent
• Bishambhar V Rooma AIR 1951 all 500 (Simple hurt 323 and criminal intimidation 503)–
express and implied consent
• Express or implied consent: Implied consent is consents by acts and conduct and consent
presumed
 3. Absence of knowledge:
• Wrestling (but loading pistol and playing – nature of weapon sufficient to foresee death)
 4. Age of consent 18 years
 Section 88: grants immunity to persons like doctors from punishments for all acts, done in
good faith and for the benefit of the consenting party, which may cause any harm except
causing death intentionally.
 In G.B.GHATGE vs. EMPEROR – teacher who gave 5 – 6 strokes with a cane to a boy of
15 yrs. Guilty of misconduct – no offence is committed since a teacher is a delegate of the
parent to protect the interests of the student. (law is now in reverse).
 Section 89: authorises guardian or other persons having lawful charge of –
i. Child below the age of 12 years
ii. A person of unsound mind
iii. Provided – it is done in good faith and for the benefit of such minor/ person of unsound
mind an the act is not either immoral or illegal.
 The benefit of s. 89 cannot be claimed in:
i. Intentional causing death or attempt to cause death
ii. Consent to the doing of anything likely to cause death
iii. Causing or attempting to cause grievous hurt
iv. Abetment to commission of any offence
9. Private Defence
 Private defence is a right available to every citizen of India to protect themselves from any
external force that can result into any harm or injury. In layman’s language it implies the use of
otherwise unlawful actions in order to protect oneself or any other individual, to protect property
or to prevent any other crime. Section 96 to 106 of Indian Penal Code 1860 contains the
provisions regarding the right of private defence available to every citizen of India.
 Self help is the first principle i.e. it is the first duty of a person to help himself. Citizens of every free
country should be provided with the right of private defence in order to protect themselves from any
imminent danger at the time when the state aid is not available or possible.
 Section 96: Requirements
i. Everyone has the right to defend his own body and property, as also another’s body and
property.
ii. The right cannot be applied as a pretence for justifying aggression for causing harm to others,
nor for causing more harm than necessary to inflict for the purpose of defence –
Jagdish v. State of Rajasthan AIR 1979 SC 1010.
 Section 97: Subject to restrictions in S.99, every man has a right to defend his own body
and body of another person, against any offence affecting the his own or another person’s
body and property.
 The question of accrual of right of private defence does not depend upon an injury being
caused to the person in question. The right could be exercised if there is a reasonable
apprehension of causing grievous injury can be established. In Dhaneshwar Kahakud v.
State of Orissa, it was held that to find out if private defence was available or not, the
injuries received by the accused, the imminence of threat to his safety, the injuries caused
by the accused and the circumstances whether the accused had time to have recourse to
public authorities, are all relevant factors to be considered.
 The onus of right to private defence is on the accused. The right to self defence is purely
preventive and not punitive or retributive, as held in Deo Narain v. State of UP AIR 1973
SC 473
 Section 98: specifies that the right of private defence applies to actions that would be
crimes, but because they are acts of children, persons of unsound mind, acts of drunken
people, and acts committed under misconception. This guarantees that a person does not
forfeit his right to private protection simply because the other party is legally incapable of
committing an offense and is shielded by legal abnormality.
Limits of The Right of Private Defence
 Section 99 stipulates the actions that do not constitute the right to private defence.
 The right to private protection of a person or property must, therefore, be exercised under
the following conditions:
i. if a public servant does not cause a reasonable apprehension of death or grievous harm to
the person or damage to the property,
ii. if there is insufficient time for recourse to public authorities, and
iii. it does not cause more harm than is required to repel the attack.
• In Patil Hari Meghji v. State of Gujarat, the accused continued to attack the deceased,
even after he had fallen down and rendered harmless, it was held that the accused could not
avail the benefit of the right of private defence.
 In Mohinder Pal Jolly v. State of Punjab, there was a conflict between workers and
management. The men hurled brickbats at the factory. The factory owner came out and shot
one worker with a revolver killing him. The Supreme Court ruled that when murdering the
worker, the owner violated his right of self-defence.
 Section 100: Right of Private Defence to cause death
i. Causing the apprehension of death;
ii. Causing the apprehension of grievous hurt;
iii. With the intention of committing rape;
iv. With the intention of gratifying unnatural lust;
v. With the intention of kidnapping or abducting;
vi. With the intention of wrongfully confining a person under circumstances which may give
apprehension that he will be unable to have recourse to the public authorities for his redress.
 Ingredients:
i. Person exercising right of private defence must be free from fault in bringing about the
encounter;
ii. Must be present an impending peril to life or great bodily harm etc as to create honest
belief of great necessity;
iii. There must be no safe or reasonable mode of escape by retreat;
iv. There must have been a necessity for taking the life - State of Orissa v. Ghenu Harijan
1978 Cr LJ 262.
 According to section 101 IPC, the body’s right of private protection must apply in all other
circumstances to cause harm and not death except as given in section s 100. In other words, the
body’s right to private protection would apply to the assailant’s death only in the
circumstances described in section 100.
 Right of private defence available in case of apprehension of danger: Sections 102 and 105,
IPC fix the time when the right of private defence commences and the time during which it
continues. According to Section 102, the right of private defence of the body commences as
soon as a reasonable apprehension of danger to the body arises an attempt or a threat to
commit an offence albeit your friends might not be committed.
 In Jai Dev v. the State of Punjab AIR 1963 SC 612, the SC held that the right of private
defence against an assault causing apprehension of death or grievous hurt comes to an end as
soon as the threat of assault has ceased and the apprehension of danger has been entirely
removed.
 Under section 103 the right of private defence of property extends subject to the restrictions
mentioned in section 99, to voluntary causing of death, in case of robbery, housebreaking by
night, under such circumstances as may cause apprehension that death or grievous hurt will be
the consequence, if such right of private defence is not exercised. Bhupendra Singh v. the
State of Gujrat – Right of private defence extends if property is a public property.
 Section 104: Restricts In the right of private defence of property, no one puts a check on the
right to private defence of the body, to cause any harm short of death in the exercise of the right
of private defence. Section 104 accordingly provides that if the offence which occasions the
exercise of the right of private defence be theft Mischief or criminal trespass and not of any of
the descriptions enumerated in section 103 the right of Defence extends only to the voluntary
causing of any harm other than that - Nathan v. State of Madras AIR 1973 SC 665.
 Section 105: Like S. 102, it fixes the time when the right to private defence of property
commences and when it comes to an end. Amjad Khan v. State, the right of private defence
commences as soon as a reasonable apprehension of danger to property of own or others
commences to arise from an attempt or threat to commit an offence even tho if the offence is not
committed,
 Section 106: Case of extreme necessity, in which the person is authorized by law to run the risk
of harming even innocent persons in order to protect himself from mortal injury.