Updated November 10, 2022
When an accused commits a crime (an illegal act or omission), the court gives him a chance to prove his innocence or to protect himself from criminal liabilities by proving the existence of special circumstances in doing it and this is called general exceptions/defenses. These general exceptions under IPC are discussed in chapter 4, section 76 to 106.
If an accused is able to prove any one of these exceptions mention in IPC, a complete exemption will be given to him. Section 6 of the IPC provides that every definition in the code of an offence and provisions needs to be understood subject to general exceptions. And, Section 105 of the Indian Evidence Act (IEA) states that the burden of proof to prove general exceptions of IPC lies in the accused.
In simple words, it is the responsibility of accused only to prove general exceptions because the court presumes that any unlawful act done is a crime and the accused don’t have any defenses. So the accused has to prove the existence of special circumstances in the act done.
Types of General Exceptions
General exceptions under IPC are classified mainly into 2 broad categories, Excusable Acts and Judicially Justifiable Acts. And, further they are divided into different subcategories which are listed below.
(A) Excusable Acts
Any act done by a person, where he shall be excused because he cannot be blamed for the act done under a special circumstances, even if had caused harm to someone or something, is called an excusable act. For example, if a person in the state of intoxication commits a crime where has been involuntarily intoxicated, he cannot be held liable for the act committed by him because he was incapable of formulating the intention/ mens rea. Same goes for insanity, infancy or honest mistake of fact. Acts fall under the categories of excusable acts are listed below.
I. Mistakes (Section 76 and 79)
II. Accident (Section 80)
III. Infancy (Section 82-83)
IV. Insanity/Unsoundness of Mind (Section 84)
V. Intoxication (Section 85-86)
(B) Judicially Justifiable Acts
Any act, that would have been unlawful under normal situation if the circumstance under which the act was performed doesn’t make it tolerable and acceptable, is called justifiable act. Acts fall under the categories of Judicially Justifiable Acts are listed below.
I. Judicial Acts (Section 77 and 78)
II. Necessity (Section 81)
III. Consent (section 87-91)
IV. Communication (Section 93)
V. Duress (Section 94)
VI. Trifles (Section 95)
VII. Right of Private defenses (Section 96-106)
Mistakes as General Exceptions Under IPC
Mistake can be defined as an act or judgement that is misguiding or wrong. Mistake as general defense discussed in section 76 and 79 of IPC. Mistake under IPC has been divided into two parts , one is mistakes of facts and other is mistakes of law and both have their own respective maxims which help a lot to establish their nature.
(a). Mistakes of Facts:- Mistake of fact is a material error in the facts or circumstances surrounding a contract. It is defined as a defense in criminal law, where 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. Legal maxim that exhibits its nature is “ignorantia facti excusati” which means ignorance of facts can be excused. For example, In a jungle at dark night, A fires a bullet thinking that it is a wild ferocious animal but the one who is harmed is a man. Here A has committed no offence as it is a mistake of facts and can be excused.
(b). Mistakes of Law:- Misunderstanding, ignorance, or incorrect application of law regard to an act or transaction is a mistake of law. 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 is categorized in two parts, mistake of Indian law and mistakes of foreign law.
Extent of Excusability for Mistake
According to the law of mistake with respect to Indian law, ignorance of the law is not a sufficient excuse.. This means either party cannot simply claim relief that it was unaware of law. For example, A man was traveling on a train without a ticket and caught by a ticket conductor. The man cannot claim that he was unaware about the requirement of ticket while traveling and shall be punished under Section 138 of The Indian Railways Act, 1989.
However, ignorance of foreign law is not given similar treatment. Ignorance of foreign law is given some leeway because the parties to the contract are not expected to know all the provisions of the foreign law and their meaning. Mistake of foreign law is in fact treated as a mistake of fact under section 21 of ICA (Indian Contract Act). For Example, An Indian Company agrees to sell a Russian Company 500 cans of a certain mixture containing 55% Sulphuric acid. The law of the country had banned the purchase and sale of mixtures containing more than 40% Sulphuric acid. Since this is a mistake of foreign law, it will be treated as a mistake of facts and the contract will be said to be void.
Sections 76 & & 79 in Terms of Mistake
Mistake as general exceptions under IPC, discussed in Section 76 and 79. To understand it in better way just go through section 76 and 79 which is discussed below.
Section 76 ( Act done by a person bound, or by mistake of fact believing himself bound, by law):- Anything done by a person who is bound by law or, who by the reason of mistakes of facts not by the reason of mistakes of law in a good faith believes himself bound by law, is not an offence.
Illustration:- (A). Aman, a soldier on the orders of his superior officer shoots at the mob in accordance with the command of law, he has not committed any crime.
(B). Arju, an officer of a court of Justice being ordered by the court to arrest Yash and after due enquiry believing Zain to be Yash and arrested Zain. Arju has committed no offence.
Section 79 ( Act done by a person justified, or by mistake of facts believing himself justified, by law):– Anything done by a person who is justified by the law or, who by a reason of mistake of facts and not by a reason of mistake of law in a good faith believes himself justified by law, is not an offence.
Illustration:- Act done by Z appears to be a murder to A. In the exercise of the power given to him by the law, A seizes Z, in order to bring Z before the proper authorities. A has committed no offense even if it is proved that Z was acting in self-defense.
Defense of Judicial Acts under IPC
Judicial act is defined as the act that is derived from the ordinary exercise of judicial powers within the reasonable and appropriate jurisdiction. Defense of Judicial acts declares that anything done while acting judicial is not an offence offense under IPC. Judicial act as a general defense could be understood better in Section 77 and 78 which is discussed below.
Section 77 (Act of Judge when acting judicially):- anything done by a judge in a good faith while acting judicially in the exercise of any power which is given to him by law, is not an offence.
Illustration:- X, a judge punishes Y with death penalty. X is not liable for the murder of Y because he is protected under section 77 of IPC.
Section 78 (Act done pursuant to the judgement or order of the court):-It’s a kind of defense that is available to a public servant in execution of a Court’s order in good faith. While a govt. servant is in the process of execution of Court’s order and anything done by him, which otherwise would appear to be an offence in the eyes of law, will not be construed as an offence.
Illustraion:- X, an officer of court arrested Y by following the order of the Court. Here X has committed no crime.
Accident as General Defense under IPC
Accident is defined as an event that someone is not expecting or foreseeing. Crime or illegal act done by accident falls under general defense in criminal law. To constitute any crime there should be two major elements, mensrea and actus reus. And defense of accident states that anything done by a person that lacking mens rea is not a crime and he can’t held liable for such act if he will able to prove that his act was accident and not a crime with the intention. Accident as general exceptions under IPC, discussed in section 80.
Section 80 (Accident in doing lawful act):- Anything done by a person by accident or misfortune and without any guilty conscience or knowledge in doing of lawful act in lawful manner by lawful means with proper care and caution, is not an offence.
Illustration:- A was cutting the wood with hatchet, the head flies off and killed a person standing nearby. If proper care and caution were taken by A, here A committed no offence and would be given complete exemption.
Defense of Necessities under IPC
Necessities can be defined as the state or fact of being required. When an act is done to cause harm but with no guilty conscience which means anything dangerous done by person to a property or individuals but to avoid more dangerous alternative. And the person can avail the defense of necessities because it was the need/requirement of the moment.
Defense of necessities is defined in two legal maxims, “jus necessitates”, “necessitas non-habet legen” which means necessities knows no law. Necessities as a general defense discussed in section 81 of IPC and to understand it in a better way, you have to go through the topic discussed below.
Section 81 (Act likely to cause harm, but without criminal intent and to prevent other harm):- Anything done by a person, merely by reason of its being done with knowledge that is likely to cause harm, if it be done without any criminal intention to cause harm and in a good faith, is not a crime.
Illustration:- A was driving the school bus and suddenly B came in front of the bus. A could have applied the brake but that could have put the lives of dozens of children in danger. Here A committed no offence and he could avail the defense of necessity.
Infancy as General Exceptions under IPC
Infancy means the state or period of babyhood or early childhood. In India the legal majority age is 18 years and every child below the age of 18 years definitely falls under some definition of Infancy. The principle of infancy defense revolves around the theory that anything done by a child, who is incapable of formulating the mens rea and ascertaining the nature and consequences of the act, is not an offence.
Nature of the defense of infancy is defined by the legal latin maxim “incapex” which means incapable of committing the crime. Infancy as a general defense could be understood better in section 82 and 83 which are discussed below.
Section 82 (Act of child under 7 years of age):- Nothing is an offence which is done by a child under seven years of age.
Section 83 (Act of child above seven years and under twelve years of immature understanding):- Anything done by a child above seven years and under 12 years of age who is not capable enough to judge the nature and consequences of the act done, is not an offence.
Insanity as General Defense under IPC
Insanity means the state of being seriously mentally ill or extreme foolishness or irrationality. A person with a mental abnormality and unsound mind is said to be insane or in the state of insanity. So the principle of insanity defense says that when a person with a unsound mind commits a crime will be given a complete exemption as he doesn’t have enough mental maturity to formulate the intention and to differentiate the wrong and right.
Defense of Insanity, in India and England, is mainly developed with case of Mc Naughten. There are so many tests to identify insanity like, wild beast test, insane delusion test, etc. but the most famous test is Mc Naughten rule which principle of insanity derived from.
There are three important persons in Mc Naughten case, the first one is Mr. Robert Peel, the second one is Mr. Drumond and the third one is Mr. Daniel Mc Naughten. Robert Peel was the prime prime minister of England then and Mr. Drumond was his secretary. Mc Naughten killed Mr. Drummond in the confusion that Mr. Drumond was Robert Peel. When Mc Nughten was being trialed, insanity was plead on his behalf that he had no control over his act and had committed the crime in delusion. The judgement also released him on the ground of insanity.
Insanity as a general defense discussed in section 84 of IPC. To understand defense of insanity in best possible way, just go through the topic discussed below.
Section 84 (act of a person of unsound mind):- Nothing is an offense which is done by a person of Unsound Mind, who is incapable of ascertaining the nature and consequences of the act done.
Defense of Drunkenness/Intoxication
Drunkenness is defined as the state of drunk or incapable of having mental element. It is a general defense under criminal law. The principle of intoxication defense says that anything done by a person in the state of intoxication is not a crime because rational thinking capacity of a person gets lowered and diminished which means a men become incapable of ascertaining the nature and the consequences of the act after getting intoxicated. Now the question arise is “can anyone commit a crime after getting intoxicated and plead Intoxication?” The answer is no, it is not so simple. Intoxication is divided into two parts, voluntary intoxication and involuntary intoxication.
Involuntary Intoxication:- If someone is being intoxicated with force, fraud and without his knowledge and after that he commits any crime, will not be held liable for the offense.
Voluntary Intoxication:- If anyone consuming intoxicants by his own will and committing any crime then it doesn’t matter that you are unaware of the act, its nature and consequences. The knowledge will be presumed and he can’t avail the defense of intoxication because voluntary intoxication has been done.
Intoxication as a general defense could be better understood in Section 85 and 86 which is discussed below.
Section 85 (Act of a person incapable of judgement by reason of intoxication caused against him):- Anything done by a person in the state of drunkenness, where he is incapable of ascertaining the nature and consequences of the act or formulating the mens rea, is not an offence.
Section 86 (Offense requiring a particular intent or knowledge committed by one who is intoxicated):- In case where an act done is not an offense unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be treated as if he had the knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was given without his knowledge or against his will.
Consent as General Exceptions under IPC
Consent can be defined as the permission to happen or agreement to do something. When one person voluntarily agrees to proposal/ideas or desires of another, consent occurs. It falls under general exceptions in criminal law. Nature of the defense of consent has been explained by Roman law maxim “volenti non fit injuria” which means if you are giving consent to some act then you yourself can’t take any action against that act.
In general term, the principle of consent defense says that anything done by a person with the consent of victim/any person is not an offence but the act should be of legal nature, should not be death causing and has been done in good faith. For example, if you are participating in a gun fight where everyone has given their consent and you have caused harm to your opponent. Here you can’t plead for the defense of consent because gun fight itself is an illegal act.
Now, the most important point to be noticed on is “how do we know that any consent is a free consent?” The answer is Indian Contract Act (ICA). You definitely have studied the maxim discussed in ICA “consensus ad idem” which means when two parties agreeing to same thing in same sense establishes consent. At the same time, it also states that any consent will be considered free consent only when these 5 elements are not involved and that are coercion, undue influence, fraud, misrepresentation or mistake. Consent as a general exceptions under IPC discussed in Section 87 to 91. To understand it in best way just go through these sections which are elaborated below.
Section 87 (Consent given for any harm other than death or grievous hurt):- Anything done by consent, which cause harm but not intended to cause harm and which is not known by doer to be likely to cause death, is not an offense.
Section 88 (Act not intended to cause death, done by consent in good faith for person’s benefit):– Anything done by a person with the consent of victim in a good faith, where the intention is not to cause harm but by any such reason it may cause harm, or the doer knows that it is likely to cause harm to the person for whose benefit it is done, is not an offense.
Section 89 (Act done for the benefit of child and unsound person in a good faith, by or by the consent of guardian):- Anything done in a good faith for the benefit of unsound person and a child under 12 years of age, by or by the consent of guardian or any other person who is lawful in charge of that person, is not an offence.
Section 90 (Consent known to be given under fear or misconception):- To avail consent as a defense, it must be given by person who is capable of thinking rationally or giving valid consent. Any consent given by a person of unsound mind, child under 12 years of age, intoxicated person and many more who are not capable of giving valid consent, will not be valid.
Section 91 (Exclusion of acts which are offenses independently of harm caused):- The defenses in section 87, 88, 89 do not extend to the act which are offenses independently of any harm which they may cause or be intended to cause or be known to be likely to cause to the person giving the consent, or on whose behalf the consent is given. For example, two men plan to steal and agree on distributing the stolen goods equally but after the theft one man denied of distributing the goods equally. Here either of the party cannot claim the defenses of section 87,88 and 89 because thieving independently is an offense.
Communication in Good Faith
Communication can be defined as the act of sharing and exchanging an information, ideas or feelings. It falls under general defense in criminal law where the provisions of communication defense says that communication made in good faith is not an offense. Communication as general exceptions under IPC, has been discussed in section 93.
Section 93 (communication made in good faith):- any communication made in good faith for the person whom it is made to, is not an offense by the reason of any harm to that person. For example, If a doctor tells a guardian in good faith that his relative has a cancer and he should be taken care in proper way. But the guardian died in shock. Here doctor has committed no offense.
Duress as General exceptions under IPC
Duress is defined as threats, violence, constraints, or other action used to coerce someone into doing something against their will or better judgement. And, an offense done under duress has been defined as defense under section 94 of IPC. The principle of defense of duress revolves around the theory that anything done by a person, except murder and offenses punishable with death, where he is compelled to do so, is not an offense. Duress as a general exception can be understood better in section 94 of the IPC which is discussed below.
Section 94 (Act to which a person is compelled by threats):- Nothing which is done by a person, except murder and offenses against state punishable with death, is an offense where he is compelled to do so by threats and, at the time of doing so, reasonably cause the apprehension that his instant death will otherwise be a consequences. For example, a person was caught by gang of dacoit. He was compelled to take gun and forced to make the door open for entrance into the house to harm the family. In the fear of instant death, he did so. Here the person has committed no offense.
Trifles as Exception
Trifles means something that is of little value or intensity or importance. And, in criminal law of India, an act causing slight harm falls under general defense. Trifles as general defense can be understood better in section 95 of the IPC. The topic is discussed below. So, lets have a look over it.
Section 95 (Act causing slight harm):- if the damage is very minor, any act done by a person is not an offense by reason that it causes any harm or intended to cause any harm or likely to be known to cause any harm. For example, Ramesh and Suresh were into argument. Ramesh loosen his cool and threw a book at Suresh causing scratch on his hand. Here Ramesh has committed no offense as the damage was very slight.
Right to Private Defense as General Exceptions Under IPC
Protecting oneself from any external force or trouble that can cause loss or injury is a private defense. It is a right given by law to every citizen of India. Right of private defense comes under general exception discussed in section 96 to 106 of IPC. The principle of defense of private defense revolves around the theory that anything done by person in the protection of himself or his property against cases of theft, robbery, mischief or criminal trespass or anything falls under the definition of theft, robbery, mischief or criminal trespass, is not an offense.
In the name of defense/right it can be used wrongfully, therefore it has various limitations as well. But it is the duty and liability of the judgement to assess whether the right was practiced in good faith or not. Right of Private Defense as a general exceptions under IPC, discussed in section 96 to 106 . To understand it in better way, just go through the topic discussed below.
Section 96 (Acts done in private defense):- Anything done by a person in the exercise of the Right of Private Defense is not an offence.
Section 97 (Right of private defense of body and property):- Everyone has a right, subject to the restriction contained in section 99, to defend-
(a). His own body, and body of any other person, against any offence affecting the human body.
(b). The property, whether movable or immovable, of himself or of any other person, against the case of theft, robbery, mischief or criminal trespass or which is an attempt to commit theft, robbery, mischief or criminal trespass.
Section 99 (Acts against which there is no right of private defense):- There is no right of private defense against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by or by the direction of a public servant acting in good faith under color of his office, though that act, may not be strictly justifiable by law.
Section 100 (When the right of private defense of the body extends to causing death):-Section 101 (When such right extends to causing any harm other than death):-
Section 102 (Commencement and continuance of the right of private defense of the body):-
Section 103 (When the right of private defense of property extends to causing death):- Section 104 (When such right extends to causing any harm other than death):-
Section 105 (Commencement and continuance of the right of private defense of property):-
Section 106 (Right of private defense against deadly assault when there is risk of harm to innocent person):-
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