Updated November 10, 2022
The defence of mistake is a powerful mechanism u/s 76 & 79 of IPC to save a person from criminal liability, where an offence has been committed without any criminal intent and under special circumstances. Plea of mistake is one of the many immunities provisioned under chapter IV, sections 76 to 106 of Indian Penal Code. Both the sections provide one common element that is, ‘mistake of facts’ would only be excused.
The provisions of immunity from criminal liability will only apply if the person is under mistaken belief. Further, this is not a right to claim but through a series of arguments the defendant has to prove the innocence.
Nature of Defence of Mistake u/S 76 and 79 of IPC
The Sections 76 and 79 each while articulating the provisions use the term “by reason of a mistake of fact and not by reason of a mistake of law”. Clear emphasis on nature of mistake which can be excused is the crux of how defense tool under S. 76 & 79 would work in the practical scenario.
In order to seek immunity under ‘defence of mistake scheme’ of IPC, the accused must be under mistaken belief of either of two kinds. The accused might be mistaken by the fact that (i) he was bound to act by law OR (ii) his actions was justified by law. General spirit of IPC labels an act to be a crime when both ingredients, viz: actus reus and mens rea are present. Any harm done (actus reus present), with guilty mind non-existent ( mens rea missing) is not labelled as crime and, the scheme of law under IPC exempts the accused of criminal liabilities. Importantly though, defence of mistake would not be served on plate by the prosecution, the onus instead, would lie on the accused to prove the circumstances that led him act under mistake of facts.
Section 105 of Indian Evidence Act, 1872, provides that the accused has all the liability to prove the existence of special circumstances in committing an act that caused harm. And, If the person by whom harm has been caused, is able to prove any of the general defences mentioned in IPC can protect himself from criminal liabilities but the act should not be illegal independently. Legal expressions for S. 76 to 79 under IPC sound little difficult to understand but they are essentially defence of mistake, defence of accident, defence of necessity, defence of unsound mind, etc.
Maxims Expressing Defence of Mistake
The popular maxim “ignorantia facti excusati, ignorantia juris non excusat” is another way to express same thing what is stated under section 76 & 79 of IPC both. What the maxim says is that mistake of fact is excusable but mistake of fact cannot be excused. In fact, there are very narrow scope where mistake of law can reduce the culpability but complete immunity cannot be extended.
The maxims assume the their form as such after something has been established through ages. Mistake of fact as a defence has tested the time and jurisdictions all across the civilizations. So, these maxims which have been around even before the construction of IPC are the actual inspiration behind article 76 & 79.
Mistakes of Facts as Defense Explained
Mistake of fact is the material error in evaluation of the facts or circumstances that prompted a particular action causing harm. In criminal law, the principle of the defense of mistake revolves around the theory that any act done by person by the reason of mistake of fact is not a crime. The first half of the original maxim viz. “ignorantia facti excusati” represents the spirit behind.
Example: Someone in the dark night fires towards a roaring & scaring sound coming from bushes believing that a wild animal would attack him. It turns out though that it was a person who had gone insane and had been into hiding and scaring people for sometime. If the Bullet has killed the lunatic, the person killing him will be exempted from criminal liability. It may be though noted that civil liability in such killings may not be completely done away with.
Construing Mistake of fact as a defence Under Section 76 of IPC:
It is important to read the long line of the section, extended lines and the illustration under the provision carefully.
Long line of the section reads as “76. Act done by a person bound, or by mistake of fact believing himself bound, by law“
Further, the extended version of the long line reads as “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.”
Interestingly, the section has provided only two illustrations though, many variation of the illustration is possible. The crux of the any illustration requires that the person committing the harms is guided by order of court or order from his superior.
Example1: A constable carrying an order to arrest Mohan, arrests his brother Sohan even after his due diligence (meaning he got mistaken by some facts during enquiry and under those belief arrests the brother of accused). The law in this case holds constable committing no crime.
Example 2: A Subedar handling a public situation of mob fires on the mob upon receiving order from Captain. Intention may or may not be to kill someone but intention was to contain the chaos and execution of the superiors order in good faith. Any life injury to the public will be a no offence on part of Subedar.
Construing Mistake of fact as a defence Under Section 79 of IPC
Long line of the section reads as “79. Act done by a person justified, or by mistake of fact believing himself, justified, by law“
Moving on, the extended part of the section of the section reads as “Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it.”
The section puts only one illustration, however many other examples can be cited. In any case, however the spirit of any possible example would require that the accused should have genuinely failed assessing true nature of incident and went on taking an action under a mistaken belief that whatever he is gong to do is right.
Example: Rathore was getting extortion calls over phone for sometime now. One fine day he sees one person dragging his minor son into a pick up van. He sudden runs towards the Van and smashes the glass of the van. It turned out the two teachers were escorting him to his home as Mr. Rathore that day missed out the timing of early closure of school. The law holds Mr. Rathore committing no offence.
Difference between TWO Mistakes Under Sections 76 and 79
A remarkable difference between the mistakes defined under 76 & 79 is that the accused under 76 is a govt servant executing court’s/ Superiors’ order while the one under 79 can be any person who is aware of his rights justified/guaranteed under law.
What is Mistakes of Law under IPC
Mistakes of Law can have many faces and it is not precisely defined under IPC. The notion of “Mistake of law” is based on the inferences drawn from definition of mistake of facts. However, a common spirit about mistake of the law is all about misunderstanding, ignorance, or incorrect application of law in respect of an act or transaction.
And under IPC, any act done by a person by the reason of mistake of law is non excusable. Legal maxim that defines its nature is “ignorantia juris non excusat” which means ignorance of law cannot be excused. Mistake of law can be viewed in two parts, mistake of Indian law and mistakes of foreign law.
In regard to Indian law ignorance of the law is not a sufficient excuse. Meaning, no one can simply claim the defense of mistake on the ground that he was unaware of law. When a man traveling on a train without a ticket is caught by a ticket conductor, just contending that he was unaware about the requirement of ticket will protect him. His ignorance although in all honesty shall be punishable u/s 138 of The Indian Railways Act, 1989.
However, ignorance of foreign law is treated little differently. Ignorance of foreign law has got some leeway under presumption that the parties to the transaction may not know all the provisions of the foreign law. Essentially, Mistake of foreign law is treated as a mistake of fact under section 21 of ICA (Indian Contract Act).
Example: An Indian exporter agrees to sell a Chinese importer 1000 cans of a certain mixture containing 55% benzoic acid. Later it turns out that Chinese law, has already banned the purchase and sale of mixtures containing more than 45% benzoic acid. Since this is a mistake of foreign law, it will be treated as a mistake of facts and the contract will simply turn void without actually penalizing the exporter.
Is Mistake of Fact Always a Defense?
No, Mistake of fact may also have different dimensions with different implications on legal grounds. Mistake of fact could be honest, innocent, reasonable belief and unreasonable lack of care. So, depending upon the case scenario of your mistake, legal implications would differ.
You might be charged with an offence or exempted from, has to do with interpretations of judiciary considering the judgements today accommodate even finer nuances of surrounding the situations.