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FACTORS NEGATIVATING GUILTY INTENTION
(..7 b..)
GENERAL EXCEPTIONS (DEFENCES)
(Ss. 14 to 44)
(..a..)
MISTAKE OF FACT
(Ss 14 and 17)
QUESTION BANK
Q.1. “An act done by reason of mistake of fact and not by mistake of law in good
faith believing himself to be justified by law is a good defence to a charge
of crime” Critically examine the above statement with reference to case law.
Q.2. “Ignorentia faciit doth excusat, Ignorentia juris non excusat.” Discuss this
maxim in the light of leading cases.
SHORT NOTES
1. Mistake of Fact
2. Mistake of Law.
3. Mistake of fact and mistake of law
SYNOPSIS
I]
Introduction
II]
Mistake of Fact under I. P. C.
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A)
Act done by a person bound or by mistake of fact believes himself to be
bound by law.
B)
Act done by a person justified, or believing himself justified by the law
1)
2)
Justified by law.
Distinction between Ss. 76 to 79
I]
INTRODUCTION:-
The Common Law principle, ‘Ignorentia facti doth excusat and Ignorentia
juris not execusat’ (ignorance of fact is an excuse and ignorance of law is no
excuse), has been embodied in Ss. 14 and 17 of the BNS. S. 14 and S. 17
correspond and are in the same verbatim as S. 76 and S. 79 of the I.P.C
respectively. This excuse is based on the principle that a man who is mistaken
about the existence of a fact can not form the necessary intention required to
constitute the offence and is, therefore, not responsible in law for his deeds.
II]
A)
MISTAKE OF FACT UNDER BNS.
Act done by a person bound or by mistake of fact, believing himself
bound by law (S.14): -
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.
Illustration
i) A, a soldier, A, fires on a mob by the order of his superior officer in conformity
with the comments of the law. A has committed no offence.
ii) A, an officer of a court of justice, was ordered by that court to arrest Y, and
after due enquiry, believing Z to be Y, arrests Z. A has committed no offence.
This section excuses a person who has done what, by law, is an offence but
is done under a misconception (ignorance) of fact, leading him to believe in good
faith that he was commanded by law to do it. This section is of special importance
in regard to the military and police acting under their officer’s command and in
respect of private persons assisting the police.
1)
Mistake of fact: -
Mistake (or ignorance) of fact is an excuse. It is because no mens rea exists
to constitute a particular offence, though actus reus is there. Mistakes also have a
recognised place in civil law. Such a mistake may be caused due to forgetfulness,
ignorance, imperfect information, negligence, stupidity or superstition, but it must
not be due to design, pre-arrangement, etc.
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Facts: - A Police Officer, on the order of the Deputy Commissioner, fired
on a mob, which had become violent, thereby killing two persons. They were
convicted for causing the murder of two innocent persons by the Session’s judge.
Supreme Court Held: - that the police were protected under S.76 since
they were bound to protect law and order.
Mistake of fact is no defence in the following two cases viz (namely): -
1)
2)
When there is strict liability imposed by the statute.
2)
Mistake of Law: -
Mistake or ignorance of the law is no defence. The term ‘law’ means the
general law of the land, as well as bylaws, rules and regulations having the force
of law. Ignorance of the law is no defence to the native or foreigner who commits
the crime, although it may be the ground for mitigation of sentence (punishment).
Ignorance of the law is no defence because every man is presumed to know the
law of the land. If ignorance of the law is allowed as a defence, it may screen the
offenders and lead to endless complications; it may lead to uncertainty in the
administration of the justice system. Another reason for ignorance of law not being
a defence is that laws are generally based on fairness and common sense.
1 AIR 1981 SC 1917
In
R
V. Tolson ((1889) Q.B.D. 168.)
Facts: - Mrs. Tolson married Mr. Tolson in September 1880. He deserted her in December 1881.
Later, on information and enquiries, she and her father came to conclusion in good faith that her
husband was lost in ship that sunk with all its holds on board. On the belief that he was dead,
she went through ceremony of marriage with another man in January 1887, before seven years
elapsed. In fact Tolson was not dead and he returned from America in Dec.1887, and a woman
was prosecuted for bigamy.
Held: - a Bonafide belief on reasonable grounds in the death of husband (mistake of fact) at
the time of the second marriage was a good defence. Therefore Mrs. Tolson was not held
guilty.
2 R.V. Stocks (1921 K.B.)
Facts: - A woman hears a rumor that her husband is dead. She makes no inquiry whether he
is really dead or alive and re-marries. The rumors subsequently found out untrue and her
previous husband was alive.
Court Held: - that a belief carelessly entertained cannot be pleaded as an excuse on the
charge of bigamy.
3 1800. In State of Maharashtra V/s. Mayer Hans George (AIR 1965 SC. 722,)
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Facts: - A sailor was charged with an offence that the British Parliament
had just forbidden. But the passing of such a law could not possibly be known to
him since he was far away at sea, and the offence was committed before the news
of its enactment could reach him. He took the defence of ignorance of the law.
Held: The court convicted him for that offence, rejecting ignorance of the
law as a defence.
3)
In good faith, believes himself to be bound by law: -
To get the benefit of S.14, an accused has to prove that, in good faith, he
believed himself to be bound by law to do that act. Thus, a soldier or policeman
acting under the command of his superior is not liable for consequences that occur
thereby.
B)
Act is done by a person justified or by mistake of fact, believing himself
to be justified by the law (S.17):-
Another case in which a person under a mistake of fact can be excused is
mentioned in S. 17. It provides that nothing is an offence if done by a person who,
in good faith, believes himself to be justified by law in doing that act.
Illustration
‘A’ sees ‘Z’ and commits what appears to ‘A ‘to be a murder of ‘B’. ‘A’, in
exercise to the best of his judgment, exerted in good faith of the power (which the
law gives to all persons apprehending murderers in the act), seizes Z to bring Z
before the police authorities. A has committed no offence, though it may turn out
that Z was acting in self-defense against ‘B’.
In Waryam Singh V/s Emperor
Facts:- An accused killed a man at night with several blows from a stick. At
the time of the attack, he believed in good faith that the object of his assault was
not a human being but a ghost or some other object than a living human being.
Held: - that the accused was acting under a mistake of fact as stated in S.79.
Therefore, he was acquitted.
1)
Justified by law:-
When the law justifies a person in doing an act, the commission of that act
does not amount to an offence.
Thus, a person is entitled to cut off those portions of a tree growing on his
Facts: - The accused was charged for violation of foreign exchange regulation Act 1947, by
bringing more gold than permitted. This ceiling limit was just imposed by the Reserve Bank
by notification. Accused pleaded defence of ignorance of that notification.
Court Held: - Ignorance of law is no defence, since notification is also law.
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neighbour’s land, which overhangs his land, as he is justified by the law in doing
such an act. It does not, by virtue of this section, amount to an offence of mischief
punishable under S.427
2)
Distinction between S. 14 and S. 17:-
The distinction between S. 14 and S. 17 is that, in S.14, a person is assumed
to be bound, and in S.17, to be justified. In other words, the distinction is between
a real (S.14) or supposed (S.17) legal obligation and a real or supposed legal
justification for doing the particular act. Under both sections, there is a bonafide
intention to advance the law; therefore, both sections are identical. S.14 protects
military and police, acting under their officer's commands and private persons
assisting to assist the police, but S.17 is meant to protect civilians who assume
themselves ‘justified by law’ in doing the State’s act (the act which is supposed to
be carried out by the state)
III. Conclusion-
The concept of "mistake of fact" under the Bharatiya Nyaya Sanhita (BNS),
2023, particularly as outlined in Sections 14 and 17, serves as a crucial general
exception to criminal liability. It embodies the principle that an act is not an
offense if done by a person who, due to a genuine and good faith mistake about
the facts, believes themselves to be either bound by law to perform the act (Section
14) or justified by law in doing it (Section 17). This defense ensures that
individuals are not held criminally liable when their actions, while appearing
wrongful, were based on an innocent misapprehension of the actual
circumstances, thereby maintaining the fundamental requirement of a guilty mind
(mens rea) for the commission of a crime.
(..b..)
JUDICIAL ACTS
(Ss. 15 to 16)
I. Introduction-
II. Act of a Judge when acting judicially (S. 15).
Important elements of this defense for a Judge are-
1. Act by a "Judge":
2. "When acting judicially":
3. "In the exercise of any power which is, or which in good faith he believes
to be, given to him by law":
4. "Good faith":
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5. Purpose:
Examples-
a. Issuing Arrest Warrants:
b. Sentencing:
b. Bail Decisions:
c. Attachment of Property:
III. Act done pursuant to the judgment or order of Court (S. 16)-
1. Act done "in pursuance of" or "warranted by the judgment or order of a
Court of Justice":
2. "Whilst such judgment or order remains in force":
3. "Notwithstanding the Court may have had no jurisdiction to pass such
judgment or order":
4. "Provided the person doing the act in good faith believes that the Court
had such jurisdiction":
5. Purpose:
III. Conclusion-
I. Introduction-
The defense of "Judicial Act" under the Bharatiya Nyaya Sanhita (BNS), 2023,
provides protection to judges and individuals acting under the order or judgment of a court.
This defense is rooted in the necessity of ensuring the independent and effective
functioning of the judiciary, preventing frivolous lawsuits or criminal charges against those
performing judicial duties or executing judicial mandates. The relevant provisions in the
BNS, 2023, are as follows-
II. Act of a Judge when acting judicially (S. 15).
This section states: "Nothing is an offense 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."
Important elements of this defense for a Judge are-
1. Act by a "Judge": This refers to a person who is empowered by law to act judicially.
2. "When acting judicially":
The act must be performed in the course of judicial proceedings or in the exercise
of judicial functions. It must not be a personal or administrative act unrelated to their
judicial duties.
3. "In the exercise of any power which is, or which in good faith he believes to be,
given to him by law":
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This is crucial. The judge is protected even if they make a mistake of law or fact, as
long as they genuinely believe they have the power to do what they are doing and are acting
within their jurisdiction. The protection extends to errors in judgment, provided the judge
is acting in good faith.
4. "Good faith":
This implies due care and caution. The judge must be acting honestly and without
any malicious intent, corruption, or ulterior motive. A corrupt or mala fide act would not
be covered under this defense.
5. Purpose:
To ensure that judges can make decisions fearlessly and impartially, without the
constant apprehension of being prosecuted for their judicial acts, even if those acts turn out
to be erroneous.
Examples-
a. Issuing Arrest Warrants:
If a judge issues an arrest warrant based on presented evidence, and it later turns out
that the evidence was insufficient, the judge is protected by BNS Section 15. This is
because they believed they were acting judicially and in good faith.
b. Sentencing:
A judge who convicts individuals based on the law and facts known to them is protected
against criminal liability, even if an appellate court later finds the judgment to be incorrect.
The protection applies because the act was done judicially and in good faith.
b. Bail Decisions:
If a judge denies bail, honestly believing it to be the correct decision, they would not
face criminal liability even if a higher court eventually grants bail. The initial decision was
made in good faith using judicial powers.
c. Attachment of Property:
A judge ordering the attachment of property in a civil dispute, even if it's later
determined that the court lacked jurisdiction, is protected by Section 15 if the act was done
in the bona fide exercise of judicial duties.
In following cases the judges were protected by the Supreme Court-
The Supreme Court affirmed that judicial officers are protected from criminal
prosecution for actions within their judicial capacity, emphasizing this immunity's vital
role in the judiciary's functioning.
4 AIR 1965 Cal 164
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The Supreme Court reiterated that judges are shielded by judicial immunity as long as their
actions are within the limits of their duties and performed without malice.
The Supreme Court held that the judiciary should operate without fear of personal liability
for official acts, clarifying that immunity applies unless actions are outside jurisdiction or
malicious.
III. Act done pursuant to the judgment or order of Court (S. 16)-
This section states: "Nothing is an offense 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, 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." Important elements of this defense for a person executing
a court order:
1. Act done "in pursuance of" or "warranted by the judgment or order of a Court of
Justice":
The action must be directly related to and authorized by a court's judgment or order.
2. "Whilst such judgment or order remains in force":
The order must be valid and not stayed, overturned, or expired at the time the act is
performed.
3. "Notwithstanding the Court may have had no jurisdiction to pass such judgment
or order":
This is a significant aspect. Even if the court that issued the order lacked the legal
authority (jurisdiction) to do so, the person executing the order is still protected.
4. "Provided the person doing the act in good faith believes that the Court had such
jurisdiction":
This good faith belief regarding the court's jurisdiction is essential. The person
executing the order must genuinely believe that the court had the power to issue it. If they
know the court lacks jurisdiction, they lose this protection.
5. Purpose:
To protect individuals (e.g., police officers, court bailiffs, or even private citizens)
who are merely executing the lawful commands of a court. It ensures that court orders can
5 AIR 2000 SC 2912
6 1967 AIR (SC) 1
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be carried out effectively without the executing parties constantly having to verify the
issuing court's jurisdiction.
III. Conclusion-
The Bharatiya Nyaya Sanhita (BNS), 2023, maintains remarkable continuity with
the Indian Penal Code (IPC), 1860, concerning the "Judicial Act" as a defense. Specifically,
BNS Sections 15 and 16 are verbatim re-enactments of IPC Sections 77 and 78,
respectively. This means that the core principles governing the protection of judges acting
judicially in good faith, and of individuals executing court orders in good faith even if the
court lacked jurisdiction, remain unchanged. Therefore, the extensive judicial precedents
and interpretations developed under the IPC regarding the scope and limitations of this
defense will continue to be directly applicable and highly relevant under the new BNS,
signifying a mere renumbering and codification rather than a substantive alteration of the
law in this specific area.
****
(..C..)
Accident
(S. 18)
I. Introduction-
II. Accident in doing a lawful act (S. 18)-
III. Essential Elements for the Defence of Accident-
1. An Act Done by Accident or Misfortune:
2. Without Any Criminal Intention or Knowledge:
3. Doing a Lawful Act:
4. In a Lawful Manner:
5. By Lawful Means:
6. With Proper Care and Caution:
IV. Comparison with Indian Penal Code (IPC) Section 80-
I. Introduction-
The defence of accident is a crucial aspect of criminal law, particularly under the
Bharatiya Nyaya Sanhita (BNS) 2023, where it is primarily provided under Section 18.
This section offers a legal safeguard, stipulating that if an act that causes harm or even
results in death occurs due to an accident or misfortune, it is not considered an offense.
This provision recognizes that unintended consequences can arise from lawful actions, and
individuals should not be held accountable in such circumstances.
II. Accident in doing a lawful act (S. 18)-
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Section 18 of the BNS, titled "Accident in Doing a Lawful Act," states: "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".
In simpler terms, if any body is performing a lawful action, using legal tools and methods,
and following all required safety protocols, yet an unexpected accident occurs that
causes harm to someone, the defence protect the accused. This defense aims to balance
holding individuals accountable for their actions while acknowledging that mishaps can
happen even with reasonable behavior.
Illustration: -
1. A is at work with a hatchet; the head flies off and kills a man. Here, if there was
no want of proper caution on the part of A, his act is excusable and not an offence.
2. Driving Accident: If a driver 'B' is operating a car on a public road, adhering to all
traffic rules and exercising reasonable care, but an unforeseen tire burst (due to a
manufacturing defect) causes the car to veer and injure a pedestrian, this may qualify as an
accident under BNS Section 18, exonerating 'B' from criminal liability. However, if 'B' was
speeding or driving negligently, this protection would not be available.
III. Essential Elements for the Defense of Accident-
The following are the essential ingredients of the defence:
1. An Act Done by Accident or Misfortune:
The event must be sudden, unforeseen, unexpected, and beyond the control of the
person causing the act. It must happen unintentionally, by chance, without prior thought or
understanding. Misfortune, in simple terms, refers to bad luck or ill fate.
2. Without Any Criminal Intention or Knowledge:
This is a core requirement. The person causing the harm must have not incline to
commit a crime (no mens rea component) or any knowledge that their lawful act was
likely to cause the specific harm that occurred. Their mindset must be innocent regarding
the harmful consequences.
3. Doing a Lawful Act:
The act being performed must, in itself, be legal and permissible under the law. For
example, chopping wood in your garden or driving a car with a valid license on a public
road are considered lawful acts. If the initial act is unlawful, the defense of accident will
not apply.
4. In a Lawful Manner:
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The way the lawful act is conducted must also be legal and permissible. For instance,
while driving a car is lawful, driving it against traffic signals or culpably is not a lawful
manner.
5. By Lawful Means:
The methods, tools, or instruments used to carry out the lawful act must also be legal.
6. With Proper Care and Caution:
The person performing the act must have exercised the level of care and caution that
a reasonable and prudent person would in similar circumstances. Negligence or a "want
of proper care and attention" will extinguish this defense. The immunity only applies
when the accident was truly beyond the individual's control. Courts will evaluate whether
all reasonable precautions were taken and whether the incident could have been foreseen
or avoided.
In State of Orissa V/s Khoraghsi
Facts: - The accused was a tribal. He went into the forest to hunt the animals. He
shot an arrow with a bona fide intention that aimed at an animal. But the arrow
caused the death of a human being.
Held – Court acquitted the accused under S. 80.
IV. Comparison with Indian Penal Code (IPC) Section 80-
BNS Section 18 is a direct equivalent and re-enactment of IPC Section 80 (Indian Penal
Code, 1860). There are no significant differences in the wording or the underlying legal
principle between the two sections. The inclusion of the same language in BNS Section 18
indicates the legislature's intent to retain the established meaning and understanding of this
important defense within the new criminal code.
***
(..D..)
ACT OF A CHILD
(Ss. 20, 21)
QUESTION BANK
Q.1. How far minority a good ground of defence?
SYNOPSIS
I. Introduction-
II. ABSOLUTE IMMUNITY TO A CHILD BELOW 7 YEARS (S. 20)-
III. QUALIFIED IMMUNITY TO A CHILD ABOVE SEVEN AND BELOW 12
YEARS OF AGE (S. 21)
III.
NO IMMUNITY TO A CHILD ABOVE 12 YEARS.
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IV. Conclusion-
I. Introduction-
The Bharatiya Nyaya Sanhita (BNS), 2023, which replaces the Indian Penal
Code (IPC), continues to recognize the "act of a child" as a general exception,
exempting certain actions committed by children from criminal liability. This
defence is rooted in the legal principle of doli incapax, meaning "incapable of
crime," acknowledging that very young children or those of immature
understanding may not possess the requisite mental capacity (mens rea) to form a
criminal intent.
The BNS, 2023, retains the provisions under sections 20 and 21 largely mirroring
Sections 82 and 83 of the erstwhile IPC as follows-
II. ABSOLUTE IMMUNITY TO A CHILD BELOW 7 YEARS (S. 20)-
This section states that "Nothing is an offence which is done by a child under seven
years of age."
This is an absolute immunity. Any act committed by a child below the age of seven
years is conclusively presumed to be incapable of constituting an offence. There is no
inquiry into the child's understanding or maturity. The law presumes such a child is doli
incapax i.e. incapable of doing a criminal act. It is because a child under such an
age group cannot form the necessary intention to commit a crime.
III. QUALIFIED IMMUNITY TO A CHILD ABOVE SEVEN AND
BELOW 12 YEARS OF AGE (S. 21) -
This section states that "Nothing is an offence which is done by a child
above seven years of age and under twelve years of age, who has not attained
sufficient maturity of understanding to judge of the nature and consequences of
his conduct on that occasion."
This is a qualified immunity. For children between the ages of seven and
twelve, the defence is not absolute. It depends on whether the child has attained
"sufficient maturity of understanding" to comprehend the "nature and
consequences" of their act.
The burden of proving this lack of maturity generally lies with the defence.
The court will examine factors such as the child's intelligence, education,
environment, and the circumstances surrounding the act to determine if they
understood the wrongfulness of their actions.
Thus, if it is shown that the child has not attained the requisite degree of
understanding to judge the nature and consequence of his conduct, he is exempted
from criminal liability; in the absence of such proof, the child above 7 years of
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age but below twelve years is as much liable for his criminal act as an adult. For
example, if the child of 9 years picks up a necklace from his friend's house and
immediately sells it for half the price, this act shows that he was sufficiently
mature to understand the nature and consequence of his deed. Therefore, his act
would amount to theft.
However, the age of immunity and maturity differs from country to country.
In Malaysia and England, the age of complete immunity is ten years, and children
above ten and below 14 enjoy qualified immunity; in the U.S.A., the age of
absolute immunity varies from state to state, between eight and twelve.
Facts: - Hiralal Mallick, a twelve-year-old lad, with his two elder brothers, was
charged with the offence of murder. Though he was twelve years old, he wielded
a sword, striking the neck of the deceased to take revenge and ran away from the
spot like his brothers.
Held: - Hiralal's conduct shows sufficient maturity to judge the nature and
consequences of his act. Therefore, his conviction was upheld.
III. NO IMMUNITY TO A CHILD ABOVE 12 YEARS-
However, a child above twelve years of age is liable for a crime. There is
no immunity in favour of him. The provisions under this section are subject to the
Juvenile Justice (Protection and Welfare) Act. 2000.
IV. Conclusion-
The BNS, 2023, has maintained the same age limits and principles regarding the
"act of a child" defence as enshrined in Sections 82 and 83 of the IPC. This continuity
ensures that established judicial precedents and interpretations concerning doli incapax
remain largely relevant. The core philosophy that a child's tender age or lack of intellectual
development can negate criminal intent is preserved.
criminal code. ***
(..E..)
UNSOUNDNESS OF MIND
(S. 22)
QUESTION BANK
Q.1. Unsoundness of Mind is good ground of defence.
Q.2. Discuss ‘Insanity’ as a defence in a criminal trial.
7 AIR 1977 SC. 2236
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Q.3. Discuss fully the provisions regarding ‘mental incapacity’ as a factor
negativating guilty intention.
Q.4 How far is “Insanity” a good ground of defence?
SHORT NOTES
1.
Legal and medical insanity.
SYNOPSIS
I.
Introduction.
II.
Act of a person of unsound mind (S.22)
Medical and legal insanity.
III.
IV. Tests of insanity.
V. Conclusion.
I.
INTRODUCTION-
Unsoundness of mind or insanity is a complete defence against a
criminal charge. It is because of the assumption that one who is insane has no mind
and hence cannot have the necessary mens rea to constitute that offence.
Therefore, such a person is even more protected than a child. Moreover, the object
of punishment to reform a criminal does not serve in the case of an insane person
since he cannot understand the object of punishment inflicted on him.
II.
ACT OF PERSON OF UNSOUND MIND (S.22)-
The law concerning the act of a person of unsound mind is laid down in Section
22 of the BNS, 2023. This section is a direct and verbatim reproduction of Section 84 of
the erstwhile Indian Penal Code.
It provides that “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 the law”.
Under this section, the word ‘unsoundness of mind’ is deliberately used because,
according to Huda, it is a more comprehensive term than insanity.
The provision is founded on the legal maxim "actus non facit reum nisi
mens sit rea," which means that an act does not make a person guilty unless there
is a guilty mind.6 In the case of a person of unsound mind, the law presumes the
absence of the requisite guilty intention or knowledge.
Ingredients:
-
A criminal act of a person is exempted from punishment if it is shown -
1)
2)
that the accused was of unsound mind.
that he was of unsound mind at the very time of his doing
the offence and not merely before or after the act and
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that as a result of unsoundness of mind, he was incapable of
knowing the nature of the act or what he was doing was either
wrong or contrary to law.
However, if such a person becomes worse and attacks another person, he
may be detained and kept in a mental hospital for care but not in jail.
III. MEDICAL AND LEGAL INSANITY-
Insanity, according to medical science, is a disease of the mind that impairs
the mental faculties of a man.
It includes idiocy, madness, lunacy, mental derangement, mental disorder,
abnormality, even an uncontrollable impulse driving a man to kill others and every
other form of mental abnormality known to medical science.
However, the insanity or unsoundness of mind implicit in law under this
topic is very restricted. In law, insanity means a disease of the mind that impairs
a cognitive faculty (i.e. reasoning capacity) of a man to such an extent as to render
him incapable of understanding the nature and consequences of his act. It is only
of particular and appropriate kind of insanity which is regarded as insanity in law
and is excusable.
In Surendra Mishra V/s State of Jharkhand (A.I.R. 2011 S.C. (Cri) 254)
Supreme Court ruled that even though the term “unsoundness of mind”
was not defined in I.P.C., it has an equivalent meaning to ‘insanity’. An accused
seeking acquittal under insanity should prove legal insanity, not medical insanity.
IV. TESTS OF INSANITY-
As discussed earlier, there are various degrees of insanity known to medical
scientists or psychiatrists; however, the law does not recognise all sorts of insanity.
Legal insanity, as contemplated under S22, is that unsoundness of mind in which
a person completely loses his cognitive faculties and is incapable of knowing the
nature of his act or that what he was doing was wrong or contrary to law.
Therefore, the important question in many cases that come before the court is how
the difference between medical and legal insanity can be made as an excuse. There
are a number of tests laid down to answer this question. However, the most notable
among them is the ‘right and wrong’ test laid down in M. Naughten’s case.
Facts: - The accused, Mac Naughten, was charged with the murder of Mr
Drummond (Secretary to the Prime Minister, Sir Robert Peel) by shooting him in
8 AIR 1977 SC 2236.
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the back as he was walking up. An accused was suffering from the insane delusion
that Sir Robert Peel (The Prime Minister) had injured him. He mistook Mr
Drummond for Sir. Robert and shot and killed him. The accused pleaded not guilty
on the grounds of insanity caused by certain morbid delusions.
Held: The accused was acquitted on the grounds of insanity. This
judgement created a sensation in England. Therefore, to clarify the law on this
subject, fifteen judges of the House of Lords laid down some principles. Viz.
Rules of Presumption: -
1) Every man is to be presumed sane and to possess a sufficient degree of
reason to be responsible for his crime until the contrary is proved.
2) To establish a Defence on the ground of insanity, it must clearly be proved
that, at the time of committing the act, the party accused was labouring
under such a defect of reason from disease of the mind as not to know the
nature and quality of the act he was doing or not to know what he was doing
was wrong.
3) But if the accused was conscious that the act was one which he ought not to
do, and if the act was at the same time contrary to the law of the land, he
is to be punished. Thus, the test is released with the power of distinguishing
between right and wrong.
Mac Naughten’s Case principles are formulated under S.84 of the I.P.C.
Facts: The accused was Kalavati's husband. He did not like his wife; therefore, he
wrote a letter to his father-in-law stating this fact to him. After some months, he
again asked his father-in-law to take Kalavati to his house. He wrote that he would
take Kalavati on or before 9/4/1959. But he did not come on that day. On that
night, Kalavati’s shout was heard by her neighbours, crying that her husband was
beating her and stabbing her. She also called for the help of neighbours.
Neighbours called the accused, but by the time he came out, Kalavati was found
9 AIR 1964 SC 1563
In Ashiruddin Ahmed V/s. State (1950 Cri. L.J. 225).
Facts: - The accused had dreamt that he was commanded by someone in paradise to sacrifice
his own son of five years. The next morning the accused took his own son to a mosque and
killed him by thrashing the knife in his throat. He then went straight to his uncle but finding
a chawkidar nearby took his uncle to the tank at some distance and slowly told him the story.
Held: - that the accused was entitled to the benefit of S.84, as even though he knew the
nature of the act he did not know that it was wrong.
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dead with a number of wounds on her body. The accused took the defence of
insanity. But he was convicted of murder by Sessions Judge. This case eventually
came to appeal before the Supreme Court.
The Supreme Court Held: - that the crucial point of time for ascertaining the
State of mind of the accused is the time when the offence was committed, and it
can be ascertained from the circumstances which proceeded, attended and
followed the crime. Thus, the conduct of the accused prior to and at the time of
the incident is relevant. The normal conduct of the accused prior to and after the
incident disallows the defence of insanity in this case.
V. Conclusion-
In conclusion, Section 22 of the Bharatiya Nyaya Sanhita, 2023, carries
forward the established legal framework for the defense of insanity mentioned in
S. 84 of the I.P.C. It provides a necessary safeguard to ensure that individuals who
are not in a position to comprehend the criminality of their actions due to mental
unsoundness are not held criminally liable. The application of this provision will
continue to be guided by the principles laid down in the McNaughten Rules and
the rich jurisprudence developed by Indian courts over the decades.
****
(..F..)
Intoxication
(S. 23)
DRUNKENNESS OR INTOXICATION (INVOLUNTARY)
(S. 85 & 86)
QUESTION BANK
Q.1. Discuss the liability of an intoxicated person under the I.P.C.
Q.2. Intoxication as a defence.
SYNOPSIS
I]
Introduction
II]
Intoxication as a defence under BNS [Ss. 23, 24)
I. Introduction
There are three kinds of abnormal persons who are unable to form rational
thinking and do not know the nature of their act. They can also not know the effects
and legal consequences of their act. They are persons of unsound mind, persons
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heavily drunken (intoxicated) and minors. It is because they lack the mens rea
requisite for committing that crime.
The Bharatiya Nyaya Sanhita (BNS), 2023, which has replaced the Indian Penal
Code (IPC), 1860, maintains the established legal principles regarding intoxication as a
potential defence in criminal law. The provisions concerning this defence are primarily
detailed in Sections 23 and 24 of the BNS, which are direct counterparts to the former
Sections 85 and 86 of the IPC. The law fundamentally distinguishes between involuntary
intoxication, which can be a complete defence, and voluntary intoxication, which is
generally not an excuse for criminal conduct.
II. The Legal Framework for Intoxication
The defence is structured around whether the intoxication was self-induced or
administered against the person's will.
1. Involuntary Intoxication: (Ss. 23, BNS, 2023).
a. The Legal Provision:
Section 23 states that nothing is an offence if done by a person who, at the time of
the act, is incapable of knowing the nature of the act, or that it is wrong or contrary to law,
provided that the intoxicating substance was administered to them "without his knowledge
or against his will."
b. Essential Elements:
To claim this defence, the accused must prove two conditions:
i. The intoxication was involuntary, meaning it was caused without their knowledge or
against their will.
ii. The intoxication was so severe that it rendered them incapable of forming a judgment
about their actions, similar to the standard for legal insanity.
c. Legal Consequence:
If proven, involuntary intoxication acts as a complete defence, leading to an
acquittal as the law presumes the absence of a guilty mind (mens rea).
2. Voluntary Intoxication: Section 24, BNS, 2023
a. The Legal Provision:
Section 24 addresses situations where an act is not an offence unless done with a
particular knowledge or intent. It holds that a voluntarily intoxicated person shall be treated
as if they had the same knowledge as a sober person.
b. Presumption of Knowledge:
Voluntary intoxication is not a general excuse for a crime. The law establishes a
legal fiction by presuming that the accused had the knowledge of the consequences of their
actions, irrespective of their intoxicated state. For example, a drunk person acting
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recklessly with a weapon will be presumed to know that their actions are likely to cause
harm.
c. The Nuance of Specific Intent:
i. While knowledge is presumed, Section 24 does not create a presumption of intent.
ii. The prosecution must still prove that the accused had the specific intent required for the
offence (e.g., the intention to cause death for a murder charge).
iii. Evidence of severe intoxication can be used by the defence to argue that the accused
was incapable of forming such specific intent, which may lead to a conviction for a lesser
offence.
III. Burden of Proof-
In accordance with the Indian Evidence Act, 1872, the burden of proving that a case
falls under the defence of intoxication lies on the accused. The standard of proof required
is a "preponderance of probabilities," not "beyond a reasonable doubt."
IV. Judicial Interpretation and Landmark Cases-
The application of these principles has been shaped by significant judicial
precedents.
Facts of the Case-
The appellant, Basdev, a retired military officer, attended a wedding reception
where he consumed a considerable amount of alcohol. During the meal, a dispute arose
between him and a young boy named Maghar Singh over a seating arrangement. When the
boy did not comply with Basdev's demand to move, Basdev took out his service pistol and
shot the boy in the abdomen at close range. The injury was fatal, and the boy subsequently
died. At trial, Basdev was charged with murder, and his primary defence was that he was
so heavily intoxicated that he was incapable of forming the specific intention required to
constitute the offence of murder, arguing that his conviction should be for the lesser offence
of culpable homicide not amounting to murder.
Principle of Law Laid Down by the Supreme Court-
Upholding the conviction for murder, the Court laid down the definitive principles
governing the defence of voluntary intoxication under Section 86 of the Indian Penal Code.
The Court established a crucial distinction between 'knowledge' and 'intent', holding that
while an intoxicated person is presumed to have the same knowledge as a sober person, the
law does not presume the existence of a specific intent.
V. Conclusion
10 (1956) AIR 488,
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The Bharatiya Nyaya Sanhita, 2023, continues the established legal doctrine on
intoxication. It provides a just safeguard for individuals intoxicated against their will while
ensuring that voluntary drunkenness cannot be used as an easy excuse for criminal acts.
The law holds individuals accountable by presuming knowledge but allows for judicial
scrutiny into whether a specific intent could have been formed, thus balancing the
principles of criminal responsibility with the realities of human impairment.
****
(..G..)
CONSENT
(S .87 to 92)
QUESTION BANK
Q.1. Explain the defence of consent as provided under BNS, with reference to
decided case law.
Q.2. “He who consents suffers no injury” Explain the applicability of this
principle to criminal liability.
SYNOPSIS
I]
Introduction.
II]
Definition of the consent (S. 90)
III] Scope of the defence of consent.
I. Introduction to the Doctrine of Consent-
In criminal law, the general principle of volenti non fit injuria—which means "to a
willing person, injury is not done"—finds limited application. Unlike in tort law, a person's
consent to suffer harm or death does not automatically absolve the doer of criminal liability.
The Bharatiya Nyaya Sanhita (BNS), 2023, like its predecessor, the Indian Penal Code,
codifies the specific circumstances under which consent can be used as a defence against
a criminal charge. These provisions are strictly construed and are based on the rationale
that certain acts, though harmful, are permissible for the greater good, such as surgical
operations or participation in contact sports. The defence of consent is detailed primarily
in Sections 25, 26, and 27 of the BNS, with the definition of what constitutes valid consent
laid out in Section 28. Sections 87 to 92 of I.P.C. were corresponding sections. The sections
25, 27 and 27 are the replicas of the sections under I.P.C, without substantive changes.
II. The Nature of Valid Consent under Section 28, BNS, 2023-
Before analyzing the specific defences, it is crucial to understand what the law
considers as "consent." Section 28 of the BNS (formerly Section 90, IPC) does not define
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consent positively but clarifies what is not considered valid consent for the purposes of the
Sanhita. In other words, it defines consent negatively as follows-
1. Conditions Invalidating Consent:
A consent is not valid if it is given under the following circumstances:
a. Consent Given Under Fear or Misconception:-
i. Fear of Injury: Consent given by a person who is under fear of injury or threat of injury
is not free and therefore not valid.
ii. Misconception of Fact: Consent given under a fundamental misunderstanding of the
facts is invalid. A common example is a woman consenting to sexual intercourse with a
man she wrongly believes to be her husband.
b. Knowledge of the Doer: For consent to be invalidated under the above two grounds, it
is essential that the person doing the act knows, or has reason to believe, that the consent
was given as a consequence of such fear or misconception.
Facts: - The accused, in this case, professed himself to be a snake charmer and
persuaded the deceased to allow themselves to be bitten by the poisonous snake,
inducing them to believe that he had the power to protect them from harm.
The Court Held that: - the consent given by the deceased allowing
themselves to be bitten did not protect the accused. Such consent has been founded
on a misconception of the fact that is, in the belief that the accused had power by
charms to cure snake bites, and the accused knowing that the consent was given
in consequence of such misconception.
2. Consent from a Person with Incapacity:
a. Person of Unsound Mind or Intoxicated Person:
Consent is invalid if it is given by a person who, due to unsoundness of mind or
intoxication, is unable to understand the nature and consequences of the act to which they
are consenting.
b. Child:
Unless the context indicates otherwise, the consent given by a child under the age
of twelve years is not considered valid consent in law for the purpose of these defences.7
III. Specific Defences Based on Consent
The BNS provides for the defence of consent under three main sections, each with
distinct conditions and applications.
1. Act not intended and not known to be likely to cause death or grievous hurt (S. 25)-
11 (1869) 12 WR (Cr) 7
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a. Scope:
This section deals with acts that carry a risk of some harm but are not intended to
cause death or grievous hurt. It is commonly applied to regulate injuries sustained during
participation in lawful sports and games.10
b. Essential Conditions:
i. The act must not be intended to cause death or grievous hurt.
ii. The doer must not know the act to be likely to cause death or grievous hurt.
iii. The person suffering the harm must be above the age of eighteen years.
iv. The person must have given express or implied consent to suffer that harm or
take the risk of that harm.
c. Illustration:
Two friends, A and B, who are both adults, consent to a friendly boxing match.
During the match, if A accidentally causes an injury to B that does not amount to grievous
hurt, A can claim the defence under this section.
2. Act Not Intended to Cause Death, Done by Consent in Good Faith for a Person's
Benefit (S. 26)-
a. Scope:
This section is wider and primarily applies to medical procedures where there is a
known risk of harm, but the act is performed for the patient's benefit. The cornerstones of
this defence are "good faith" and "benefit."16
b. Essential Conditions:
i. The act must be done for the benefit of the person suffering the harm.
ii. The act must be done in good faith (i.e., with due care and attention).
iii. The act must not be intended to cause death.
iv. The person must have given express or implied consent to suffer the harm or to take
the risk of that harm.
c. Proviso:
This section explicitly states that the exception does not extend to the intentional
causing of death or the attempt to cause death.
d. Illustration:
A surgeon, S, informs a patient, P, that an operation is necessary to save their life
but carries a risk of death. P consents to the procedure. If S performs the surgery with due
care and skill (in good faith) but P dies on the operating table, S is protected from criminal
liability under this section because there was no intention to cause death.
3. Act Done in Good Faith for Benefit of a Child or Person of Unsound Mind, by or
by Consent of Guardian (S. 27)-
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a. Scope:
This provision extends the logic of Section 26 to individuals who are legally
incapable of giving consent, such as children under twelve years of age and persons of
unsound mind.21 In such cases, a lawful guardian can provide consent on their behalf.
b. Essential Conditions:
i. The act must be done for the benefit of the child or person of unsound mind.
ii. The act must be done in good faith.
iii. The act must be done by the guardian or with the express or implied consent of
the lawful guardian.
c. Limitations:
This section comes with strict limitations:
i. It does not provide a defence for the intentional causing of death or an attempt to
cause death.
ii. It does not extend to the causing of grievous hurt, unless it is for the purpose of
preventing death or grievous hurt, or for curing a grievous disease or infirmity.
iii. It does not justify the abetment of any offence to which the exception itself
would not apply.
Illustration
A
, in good faith, for his child’s benefit without his child’s consent, has his child
cut for the (kidney) 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, inasmuch as his object was the child's cure.
IV. Related Provision: Act Done in Good Faith for Benefit Without Consent (Section
30, BNS, 2023)24
Though not a defence of "consent," Section 30 (formerly Section 92, IPC) is
intrinsically linked, as it deals with situations where consent cannot be obtained.25
1. Scope:
This section provides a defence for an act done in good faith for a person's benefit,
without that person's consent, because the circumstances made it impossible to obtain it in
time.26
2. Application:
It is typically invoked in emergency medical situations, such as performing life-
saving surgery on an unconscious accident victim who has been brought to the hospital
with no relatives present.
3. Rationale:
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The defence is based on the principle of necessity, where the law allows for a lesser
harm to be done to prevent a greater one.
V. Conclusion-
The defence of consent under the Bharatiya Nyaya Sanhita, 2023, is a nuanced and
limited exception to criminal liability. It is not a blanket permission to cause harm but a
carefully constructed set of rules designed to protect acts done for a person's benefit (like
medical treatment) or acts undertaken with mutual understanding and without malicious
intent (like in sports). The validity of consent itself is subject to strict conditions, ensuring
that it is freely and knowingly given by a person capable of making such a decision. The
law firmly upholds the principle that one cannot consent to the intentional infliction of
death or grievous hurt, thereby safeguarding the sanctity of human life and well-being.
****
(..H..)
Communication Made in Good Faith
(Ss. 31)
Synopsis
I. Introduction-
II. The General Defence: Section 31 of the BNS
1. The Provision:
2. Important ingredients of Section 31:
a. Good Faith:
b. For the Benefit of the Recipient:
c. Causation of Harm:
3. Illustration from the Sanhita:
III. "Good Faith" as a Defence in Defamation (Section 356)
IV. Conclusion-
I. Introduction-
The Bharatiya Nyaya Sanhita (BNS), 2023, which replaces the Indian Penal Code,
1860, carries forward, paraphrases and refines several legal principles, including the
defence of communications made in good faith mentioned in S. 93 of the I.P.C. S. 31 of
BNS is a paraphrase of S.93. This defence acknowledges that not all actions that cause
harm are criminal, especially when they are undertaken with an honest and beneficial
intent. This note provides a detailed examination of this defence under the BNS.
II. The General Defence: Section 31 of the BNS
The primary provision that protects communications made in good faith is Section 31
of the BNS. It is a general exception applicable to all offences under the Sanhita.
“Law Master’s Publication”
1. The Provision:
Section 31. Communication made in good faith.—No communication made in good
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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.
2. Important ingredients of Section 31:
a. Good Faith:
The communication must be made in "good faith." This is the cornerstone of the
defence. Section 2(11) of the BNS, 2023: "good faith".—Nothing is said to be done or
believed in “good faith” which is done or believed without due care and attention;
This definition is crucial as it imposes an objective standard. It is not enough for a
person to merely believe they are acting in good faith. They must also have exercised the
level of care and attention that a reasonable person would in similar circumstances.
b. For the Benefit of the Recipient:
The purpose of the communication must be to benefit the person to whom it is
addressed.
c. Causation of Harm:
The communication is protected even if it causes harm to the recipient. This harm can
be mental, emotional, or even physical.
3. Illustration from the Sanhita:
The BNS provides a classic illustration to clarify the scope of this section:
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.
In this example, the surgeon's communication, though it led to the patient's death, is not
an offence because it was made in good faith and for the patient's benefit (e.g., to allow the
patient to settle their affairs).
III. "Good Faith" as a Defence in Defamation (Section 356)
The defence of "good faith" is particularly significant in the context of defamation,
which is defined under Section 356 of the BNS. While making or publishing a false
imputation that harms a person's reputation is an offence, the law provides several
exceptions where a communication made in good faith is not considered defamation.
IV. Conclusion-
The defence of communication made in good faith under the Bharatiya Nyaya
Sanhita, 2023, is a vital legal principle that balances the protection of individuals from
harm with the need for honest and open communication in various personal, professional,
and public contexts. By providing a clear definition of "good faith" and outlining its
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application in specific scenarios, particularly in the context of defamation, the BNS ensures
that individuals who act with due care and for a beneficial purpose are shielded from
criminal liability, thereby fostering a climate of responsible expression.
****
(..I..)
(S. 32)
Synopsis
I. Introduction-
II. Compulsion as a defence under S. 32-
Explanation 1: -
Explanation 2: -
III. Conclusion-
I. Introduction-
The provision of duress contained under S. 94 of the I.P.C is replica of S.
32 of the BNS. S.9432 exempts a man from criminal liability in respect of acts
committed by him under compulsion or duress.
II. Compulsion as a defence under S. 32-
S.32 provides that, 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 becomes 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 the gang of dacoits, and forced, by the threat of instant
death, to do a thing which is an offence by law, for example, a smith compelled to
12
धाकधपटषाही दाखऊन क
े
लले े क
ृ
तय. [जबारण ककया काय।
य
]
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take his tools and to force the door of a house open for the dacoits to enter and
plunder it, is entitled to the benefit of this exception.
Thus, though the provisos the Sanhita has laid down the limitations on the defence
of compulsion.
This section is based on the maxim. ‘Actus me invoto (factus) non-est mens
actus’, i.e. an act which is done by me against my will is not my act, and hence I
am not responsible for it.
III. Conclusion-
The transition from the Indian Penal Code, 1860, to the Bharatiya Nyaya
Sanhita, 2023, has not altered the substantive law regarding the defence of duress.
Section 32 of the BNS is a direct successor to and a verbatim reproduction of
the core principles of Section 94 of the IPC. The legal requirements—a threat
of instant death, reasonable apprehension, and the accused not having voluntarily
entered the situation—remain the same. Similarly, the absolute prohibitions
against using this defence for murder and capital offences against the State are
carried forward without modification. The change is one of legislative re-
numbering and re-codification rather than a legal or philosophical shift in the
defence of compulsion.
***
(..J..)
ACT CAUSING SLIGHT HARM
(Ss. 33)
Synopsis
I. Act Causing Slight Harm as a Defence-
II. Under the Bharatiya Nyaya Sanhita (BNS) (S. 33)-
1. According to S. 33,-
2. Objective:
3. Interpretation of 'Harm':
4. Examples:
III. Conclusion-
I. Act Causing Slight Harm as a Defence
Both the Indian Penal Code (IPC) under S. 95 and the Bharatiya Nyaya Sanhita
(BNS) under S. 33 recognize the principle that certain acts, though technically causing
harm, should not be considered offenses if the harm caused is so trivial that a reasonable
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person would not complain about it. This defense is rooted in the legal maxim 'de minimis
non curat lex', which means "the law does not concern itself with trifles."
II. Under the Bharatiya Nyaya Sanhita (BNS) (S. 33)-
1. According to S. 33,-
"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."
2. Objective:
The provision aims to prevent the criminal justice system from being burdened with
trivial matters that do not warrant legal intervention. It acknowledges that in daily life,
minor inconveniences or harms can occur, which are not intended to be penalized by the
law.
3. Interpretation of 'Harm':
While "harm" is not exhaustively defined, it encompasses various forms of injury,
including physical, mental, reputational, or property damage. The crucial element is that
the harm must be so insignificant that a person of ordinary sense and temper would not
deem it worthy of a complaint.
4. Examples:
a. Accidentally bumping into someone in a crowded place, causing no injury.
b. Lightly tapping someone's arm during a friendly game without causing pain or injury.
c. Spilling a few drops of coffee on someone's dress in an accidental bump, causing slight
annoyance but no significant damage.
III. Conclusion-
In conclusion, the defense of "act causing slight harm" under the Bharatiya Nyaya
Sanhita is a direct continuation of the provision previously found in the Indian Penal Code.
The essence, objective, and application of this defense remain consistent, reflecting the
enduring legal principle that trivial matters should not fall within the ambit of criminal
prosecution.
***
(..H..)
RIGHT OF PRIVATE DEFENCE
(Ss. 33)
QUESTION BANK
Q.1. Briefly explains the nature, extent duration of the right of private defence of
the body under the BNS.
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Q.2. “The BNS permits a man to use force as a right of private defence to prevent
harm to person and property” Discuss.
Q.3. What are the acts against which there is no right of private defence?
Q.4. Explain the right of private defence. When does the right of private defence
extend even to the causing of the death of a human being?
Q.5. Explain the Scope of the right of private defence under the I.P.C, and explain
when death can be caused in defence of property.
Q.6. Explain fully the right of private defence along with its exceptions.
Q.7. When private defence extends to causing of death to protect body and
property.
SHORT NOTES
1. The right of private defence of property.
Synopsis
I. INTRODUCTION:-
II. Right of Private Defence (Section 34, BNS)
A. Right of Private Defence of Body (Section 35, BNS)
1. Right of Private Defence of Body (Section 35, BNS):
2. Acts Against Which There is No Right of Private Defence (Section 37, BNS):
a) Acts of a Public Servant:
b) Time to Obtain Protection of Public Authorities:
c) Extent of the Right of Private Defence:
3. When Right of Private Defence of Body Extends to Causing Death (Section 38,
BNS):
4. Commencement and Continuance of Right of Private Defence of Body (Section 40,
BNS):
B. Right of Private Defence of Property (Section 35, BNS)
1. Right of Private Defence of Property (Section 35, BNS):
2. Acts Against Which There is No Right of Private Defence of Property (Section 37,
BNS):
3. When Right of Private Defence of Property Extends to Causing Death (Section 41,
BNS):
a. Robbery.
b. House-breaking after sunset and before sunrise
c. Mischief by fire or any explosive substance
d. Theft, mischief, or house-trespass,
4. When Right of private defence of property does not extend to causing death (S. 42)-
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5. Commencement and Continuance of Right of Private Defence of Property (Section
43, BNS):
I. INTRODUCTION:-
The right of private defence is recognised in every civilised system of law.
By nature, all creatures have one or the other form of tactic or organ of defence.
The right of private defence is very fundamental in nature. Therefore, the law of
private defence provides that when a person is suddenly faced with an attack on
his person or property, immediate aid from the State (i.e. police, etc.) machinery
is not available, and that person is entitled to defend himself and resist the attack
and to inflict on the offender such harm that it is necessary to defend. The right of
private defence serves a social purpose. There is nothing more degrading for a
human being than to run away in a cowardly manner at a time of peril.
In India, the right of private defence is dealt with by Ss. 34 to 44 of the BNS.
The rights guaranteed under these sections are the right to defend not only the
person and property of a person himself but also the person and property of others.
S.34, therefore, declares that nothing is an offence which is done in the exercise
of the right of private defence. However, this right of private defence is subject to
the limitations imposed in Ss. 37, 38, 39 etc. S.34 lays down that the right of
private defence embodies the defence of the person and property of a person,
himself as well as of others (i.e. of strangers).
Held:- The burden of proving the right of private defence is on the accused.
However, he need not prove the defence beyond a reasonable doubt; mere
preponderance of probability is sufficient.
Thus, the right of private defence may be of a person (i.e. of the body) or
property. A person can defend not only his own person or property but the person
and property of others (strangers) too.
II. Right of Private Defence (Section 34, BNS)
Section 34 of the BNS states that "Nothing is an offence which is done in the
exercise of the right of private defence." This foundational section establishes that any act
performed legitimately in self-defence is not considered a crime. This right, however, is
not absolute and is subject to several restrictions and conditions detailed in subsequent
sections of the BNS.
A. Right of Private Defence of Body (Section 35, BNS)
13 (AIR 2007 SC 363).
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1. Right of Private Defence of Body (Section 35, BNS):
Section 35 of the BNS provides that every person has a right to defend:
a. Their own body.
b. The body of any other person, against any offense affecting the human body. This
includes offenses like assault, grievous hurt, wrongful restraint, kidnapping, etc.
As per Section 36, the right of private defense exists even against acts
committed by persons who are not legally culpable for their actions (e.g., a child, a
person of unsound mind, or someone acting under intoxication or misconception).
The harm caused or apprehended is real, irrespective of the aggressor's mental state
or age. Even though such persons are exempted from criminal liability, the right of
private defence is available against them.
Illustration
a)
Z, under the influence of madness, attempts to kill A; Z is guilty of no
offence (because of his being mad). 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 a
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 the misconception.
2. Acts Against Which There is No Right of Private Defence (Section 37, BNS):
The right of private defense is subject to certain limitations, as specified in Section
37 of the BNS. There is no right of private defense in following conditions:
a) Acts of a Public Servant:
Against an act which does not reasonably cause the apprehension of death or
grievous hurt, if done, or attempted to be done, by a public servant acting in good faith
under colour of their office, though that act may not be strictly justifiable by law. The same
applies to acts done by direction of a public servant.
Explanation 1: A person is not deprived of the right of private defense against a public
servant unless they know or have reason to believe that the person doing the act is such a
public servant.
Explanation 2: Similarly, against an act done by the direction of a public servant, the right
is not lost unless the person knows or has reason to believe that the act is by such direction,
or unless the public servant states the authority under which they act.
14 (1937)
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Facts: - In this case, certain customs officers, on a search, found that the
goods were smuggled from Yaman into Indian Territory. The smugglers, during
the search, attacked the officers and caused injuries. They pleaded the right of
private defence.
Court held: - that the officers had acted in good faith and under the colour
of their office, and therefore no right of private defence was available to the
accused.
b) Time to Obtain Protection of Public Authorities:
In cases where there is time to have recourse to the protection of the public
authorities. This implies that if a person can reasonably seek help from the police or other
authorities, they should do so instead of resorting to private defense.
c) Extent of the Right of Private Defence:
The right of private defense in no case extends to the inflicting of more harm than
it is necessary to inflict for the purpose of defense. This is the principle of proportionality,
meaning the force used must be commensurate with the threat faced.
Wherein the Court negatived the right of private defence of an accused who
killed a weak old woman found stealing at night. The accused exceeded the right
of private defence.
3. When Right of Private Defence of Body Extends to Causing Death (Section 38,
BNS):
The right of private defense of the body extends, under the restrictions specified in
Section 37, to the voluntary causing of death or of any other harm to the assailant, if the
offense which occasions the exercise of the right is of any of the following descriptions:
a. Such an assault as may reasonably cause the apprehension that death will otherwise
be the consequence of such assault.
b. Such an assault as may reasonably cause the apprehension that grievous hurt will
otherwise be the consequence of such assault.
c. An assault with the intention of committing rape.
d. An assault with the intention of gratifying unnatural lust.
e. An assault with the intention of kidnapping or abducting.
f. An assault with the intention of wrongfully confining a person, under circumstances
which may reasonably cause them to apprehend that they will be unable to have
recourse to the public authorities for their release.
15 (1866) 5 WR 33
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g. An act of throwing or administering acid or an attempt to throw or administer acid
which may reasonably cause the apprehension that grievous hurt will otherwise be the
consequence of such act.
Facts: - In this case, Gopal (a deceased) had married the sister of
Vishwanath, an accused. But the relationship between Gopal and his wife became
strained on account of Gopal’s suspicion of her chastity. Therefore, she was
staying at her father’s house, where Vishwanath and her brother also lived. In
contrast, Gopal was staying with his relatives, i.e. Banarasi, in nearby quarters of
the Railway. Gopal insisted his wife stay with him in Banarasi’s house, but she
refused. On one fine evening, Gopal sought the help of Banarasi’s family and took
Banarasi and his two sons with him to his father-in-law's house, where his two
sons stood outside the door of the house and Gopal went inside. He tried to drag
his wife out of the house, but she was struggling and refusing to go with him.
Thereupon, to protect his sister, Vishwanath drew a knife from his pocket and
stabbed Gopal. As a consequence, he died. The prosecution argued that the
accused, Vishwanath, had exceeded the right of private defence. Whereas the
accused pleaded that the killing was justified under the right of private defence,
while the victim was to abduct the sister of the accused.
Held: The court accepted the defence of the accused and acquitted him.
4. Commencement and Continuance of Right of Private Defence of Body (Section 40,
BNS):
The right of private defense of the body:
a. Commences as soon as a reasonable apprehension of danger to the body arises from an
attempt or threat to commit the offense, even if the offense has not yet been committed.
b. Continues as long as such apprehension of danger to the body continues. This means
the right ceases once the threat is over or the danger has passed.
In State of U.P. V/s Ramswarup
Facts: - The attacker, when (he) was defeated by a person (accused), was running
away to save his life when the accused shot him down with his gun, in the result
of which the assailant died. The accused took the defence of the right of private
defence of the body.
Held:- that the right arises as soon as the reasonable apprehension arises until the
threat continues. There is no right to inflict punishment on the wrong door for his
16 AIR 1960, SC 67.
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attack after the apprehension ceases. The right of defence ends with the necessity
for it. Therefore, when the deceased was fleeing for his life, there was no
justification to shoot him down. This is a case of murder and nothing else.
B. Right of Private Defence of Property (Section 35, BNS)
1. Right of Private Defence of Property (Section 35, BNS):
Section 35 of the BNS also provides that -
(a) every person has a right to defend: Movable or immovable property, of
themselves or of any other person,
(b) against any act which is an offense falling under the definition of theft, robbery,
mischief, or criminal trespass, or which is an attempt to commit theft, robbery,
mischief, or criminal trespass.
2. Acts Against Which There is No Right of Private Defence of Property (Section 37,
BNS):
The limitations mentioned in Section 37 (acts of public servants, time to seek public
authority protection, and proportionality) apply equally to the right of private defense of
property. The force used must not exceed what is necessary to prevent the harm to the
property.
3. When Right of Private Defence of Property Extends to Causing Death (Section 41,
BNS):
The right of private defense of property extends, under the restrictions specified in
Section 37, to the voluntary causing of death or of any other harm to the wrong-doer, if the
offense, the committing of which, or the attempting to commit which, occasions the
exercise of the right, be an offense of any of the following descriptions:
a. Robbery.
b. House-breaking after sunset and before sunrise (equivalent to "house-
breaking by night" in IPC).
c. Mischief by fire or any explosive substance committed on any building, tent, or
vessel, which is used as a human dwelling, or as a place for the custody of
property.
d. 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 defense is not exercised.
4. When Right of private defence of property does not extend to causing death (S.
42)-
If the offense against property is not of any of the descriptions specified in Section
41 (i.e., it does not involve apprehension of death or grievous hurt), the right of private
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defense of property does not extend to voluntarily causing death to the wrong-doer.
However, it does extend, under the restrictions specified in Section 37, to voluntarily
causing any harm other than death to the wrong-doer.
5. Commencement and Continuance of Right of Private Defence of Property
(Section 43, BNS):
The right of private defence of property:
a. Commences when a reasonable apprehension of danger to the property
commences.
b. Against theft, continues till the offender has effected their retreat with the
property, or either the assistance of the public authorities is obtained, or the
property has been recovered.
c. 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.
d. Against criminal trespass or mischief, continues as long as the offender
continues in the commission of criminal trespass or mischief.
e. Against house-breaking after sunset and before sunrise, continues as long as
the house-trespass which has been begun by such house-breaking continues.
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