51
“Law Master’s Publication”
“General Exceptions”
Prof. Santosh D. Bhosale
FACTORS NEGATIVATING GUILTY INTENTION
(..7 (a)..)
INTRODUCTION TO SGENERAL EXCEPTIONS (DEFENCES)
QUESTION BANK
Q.1. Discuss the various defences available to an accused person under the
provisions of BNS.
Q.2. What are the general exceptions provided under BNS.
SYNOPSIS
I]
Introduction
II]
Classification of offences under IPC
A)
B)
Excusable Acts
Justifiable Acts
III] Burden of Proof
I] INTRODUCTION:-
Every person who violates the criminal law is subject to punishment.
However, this rule has some exceptions. For example, a man may be excused from
punishment, either on the grounds of absence of the requisite mens rea or on some
other grounds recognised by the law. Such provisions of exception are dealt in
Chapter III of the Bharatiya Nyaya Sanhita, from Ss. 14 to 44. Under I.P.C the
provisions relating to general defeces were contained under Ss. 76 to 106.
These provisions are ‘general’ in that they apply to every definition, penal
provision and illustration throughout the Sanhita. Therefore, all the general
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“Law Master’s Publication”
“General Exceptions”
Prof. Santosh D. Bhosale
exceptions are put in a single chapter instead of repeating them in connection with
each offence. These general exceptions do not apply only to the offences under
BNS. but also to the offences under the Special or Local laws, e.g. Food
Adulteration Act, the Anti-Corruption Act, etc.
II]
CLASSIFICATION OF OFFENCES UNDER BNS.:-
These provisions relating to ‘general exceptions’ may be classified into two
classes of exceptions, viz (namely) excusable and justifiable exceptions. In
excusable exceptions (or defences) there is a lack of mens rea on the part of the
person committing the offence, e.g. mistake of fact, accident, insanity, etc. When
any act falls under excusable exceptions, it is no offence at all. Whereas in
‘justifiable’ exceptions, the law provides justifications for the acts committed in
particular circumstances, e.g. judicial act, necessity, consent, etc. These acts are
otherwise offences if not justified by law.
Thus, if taking the goods of other person with the consent of that person is
no offence, but taking them without consent is an offence.
Thus, general exceptions can be classified as follows: -
A)
Excusable Acts: -
Excusable acts are those where the person is pardoned due to a lack of mens
rea, such as acts committed by individuals with unsound minds, during
involuntary intoxication, or by infants etc.
1)
2)
3)
Mistake of Fact (Ss. 14 and 17).
Accident (S. 18).
Incapacity to do an act.
Infant/Infantacy (Ss.20 and 21)
Insanity (S.22).
a)
b)
c)
Intoxication (Ss. 23 and 24).
B)
Justifiable Acts: -
Justifiable acts, on the other hand, are those that would normally be
wrongful but are tolerated due to the circumstances, like actions taken out of
necessity or in private defence.
1)
Judicial act.
a)
b)
Act of Judge (S.15).
Act done in pursuance of an
order of a court (Sec.16)
2) Accident (S. 18)
3) Necessity. (S.19).
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“Law Master’s Publication”
“General Exceptions”
Prof. Santosh D. Bhosale
4)
5)
Duress (S. 32).
Consent: -
a)
b)
With consent (Ss. 25 - 29).
Without consent (S. 30).
6)
Communication made in good faith(S.31)
Act causing slight harm (S. 33).
7)
8)
Right of private defence (Ss. 34 to 44).
III. Changes brought by the BNS in the provision of I.P.C-
The Bharatiya Nyaya Sanhita (BNS) 2023 generally retains most of the provisions
related to "General Exceptions" found in the Indian Penal Code (IPC). While many
sections are verbatim reproductions or have only been renumbered from their IPC
equivalents, a few specific changes and nuances have been introduced or highlighted as
follows.
1. "Unsound Mind" Replaced by "Mental Illness":
The BNS replaces the term "unsound mind" with "mental illness" for the defence of
a person's incapacity to understand the nature of their act. This change is seen in BNS
Section 22 (Act of a person of mental illness), which corresponds to IPC Section 84.
The definition of "mental illness" under the Mental Healthcare Act, 2017 (MHA,
2017), is adopted, which explicitly excludes mental retardation and includes abuse of
alcohol and drugs as a form of mental illness. This means that individuals suffering from
mental retardation might be denied protection, while those voluntarily intoxicated could
potentially claim this defence, contradicting the traditional IPC stance on involuntary
intoxication. The Standing Committee on Home Affairs recommended reverting to
"unsound mind".
Similarly, BNS Section 36, which deals with the right of private defence against acts
by a person with mental illness, replaces the IPC's "unsound mind, etc.".
2. Involuntary Intoxication (Section 23 BNS):
BNS Section 23, the equivalent of IPC Section 85, addresses acts committed by an
individual due to intoxication that was not voluntary. This provision serves as a defence
if the individual was incapable of understanding the nature or wrongfulness of the act due
to intoxication caused without their knowledge or against their will.
Offence Requiring Intent or Knowledge Committed Under Intoxication (Section 24
BNS):
a. Corresponding to IPC Section 86, BNS Section 24 holds a person liable as if they
were sober if they commit an act requiring a particular knowledge or intent while
voluntarily intoxicated, unless the intoxication was administered without their knowledge
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“Law Master’s Publication”
“General Exceptions”
Prof. Santosh D. Bhosale
or against their will.
b. This section presumes the knowledge of a sober person but does not
automatically presume intention, which still needs to be proven independently.
3. Private Defence (Section 34 BNS):
BNS Section 34, which states that "Nothing is an offense that is done in the exercise
of the right of private defence," is a verbatim reproduction of IPC Section 96. It reinforces
the natural right to self-preservation and protection of property, provided the force used is
necessary and proportionate to the threat. This right is subject to limitations detailed in
subsequent sections of the BNS (Sections 35-44), which correspond to IPC Sections 97-
106.
In essence, while the BNS largely maintains the principles and structure of general
exceptions from the IPC, the most significant explicit change lies in the terminology
concerning mental incapacity, shifting from "unsound mind" to "mental illness," which
may have broader implications for the application of this defence.
III] BURDEN OF PROOF:-
The burden of proof means the obligation to prove the truth or falsehood of
a fact or proposition. In criminal matters, the prosecution (State) has to prove the
existence of all facts necessary to constitute the offence charged beyond all
reasonable doubt. If there is a reasonable doubt regarding the guilt of the person
charged with a crime (i.e. accused), the benefit of it is to be given to the accused.
In criminal cases, the burden of proof rests upon the prosecution to prove actus
reus and mens rea.
However, as per S. 108 of the Bharatiya Sakshya Adhiniyam, 2023, the
burden of proving the exemptions (above-mentioned) is on the person (i.e.
accused) who wants to bring his case within any of the above-mentioned
exceptions. In other words, the accused has to prove the exception.
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