General Exceptions
The General Exceptions contained in sections 76-106 of the
Penal Code, 1860, make an offence a non-offence. Offence
antonym is Defense. Defense means to drive danger or attack
away from using a weapon to oneself.
Defense is 2 types.
I. General – Applicable for each and every offence
II. Specific – Applicable for any particular offence
The general exceptions come within the following 7
categories:
1. Mistake of fact (sections 76, 79).
2. Judicial acts (sections 77, 78).
3. Accident (section 80).
4. Absence of criminal intent (sections 81-86, 92-94).
5. Consent (sections 87-91).
6. Trifling acts (section 95).
7. Private defence (sections 96-106).
Mistake of fact:
Section 79: 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.
Means if a person committed an offence which is justified by
law, or who thinks himself to be justified by law in good faith
because of a mistake of fact rather than a mistake of law.
The person will get defense if they prove –
1. Thought it was justified by law
2. It was a mistake of fact
3. It was in good faith
If it is a Mistake of Law then the person will not get defence.
Example:
1. A married B who was in the Hindu religion before
marriage. After marriage, A notices B goes to a special
room, locks the door and stays there for a few hours.
The people of the society tell A that maybe b has
become Hindu again. A was not convinced. Then A
makes a small hole in the door and when B enters, A
sees that B is doing Hindu worship movements in front
of the Hindu-believed spiritual statues. In Muslim Law, if
a person converts to a non-Muslim religion, then the
marriage is over. A then leaves the house and gets
remarried. B filed a case against A, saying he had not
converted to Hindu. Here, A gets defense because
whether a person has become Hindu or not, is a mistake
of fact. So, A will get defense.
2. M married N. Both are Muslim. After some time, N
started to believe the Qadiyani section of the Muslims.
Now people around them started saying to M that N is
no longer Muslim as he believes in Qadiyani. People says
that Qadiyanis are not Muslim and the marriage is over.
M leaves N and gets remarried. N then goes to the court
to file a case. Here N says although he has faith in
Qadiyani, he is still a Muslim. In Muslim law, a person
who acknowledges the Kalima is Muslim. So, M will not
get the defense as it was not justified by law.
3. X and Y are a couple. Just like the previous number 1
example, things happened. People around them started
saying Y had become Hindu. X then immediately left the
house and remarried. When the matter went to the
court Y said he was doing a research project about
the Hindu religion and had not become a Hindu. X will
not get the defense as she had not had good faith. If due
care and attention is missing, the person will not get the
defense.
Section 76: 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.
Here we get 3 things –
1. Bound by law
2. Mistake of fact
3. Good faith [Due care and attention, Section 52]
Illustration: Following the lawful orders of the superior is a
must. If a superior gives an unlawful order and the
subordinate thinks that it is a lawful order then the
subordinate will not get defense as it is a mistake of law. If a
senior’s order is clearly illegal then following that order will
not be a mistake of fact, it will be a mistake of law and will
not get defense in the court of law.
If the person works under threat, they will get a defense
unless it is a murder or against the state. – Section 94
Mistake of fact: Although an act may not be justified by law,
yet if it is done under a mistake of fact, in the belief in good
faith that it is justified by law, it will not be an offence.
Good faith: The question of good faith must be considered
with reference to the position of the accused and the
circumstances under which he acted. It requires not logical
infallibility but due care and attention. The question good
faith is always a question of fact to be determined in
accordance with the proved facts and circumstances of each
case.
Mistake of law: Mistake in point of law in a criminal case is
no defense. It ordinarily means mistake as to the existence or
otherwise of any law on a relevant subject as well as mistake
as to what the law is.
Judicial acts:
Section 77: Nothing is an offence 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.
Means if a judge thinks and acts in good faith, judicially and
in his judicial capacity and jurisdiction, he will get defense.
Acts which are not in his power but did in good faith, will get
defense.
*** If a judge makes a mistake of law in good faith, will get
defense but the common people won’t.
Section 78: Nothing 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, is an
offence, 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.
Means in carrying out the order of the judge and done
something in good faith then the person will get defense. If
the order is within jurisdiction and the person done in good
faith, he will get defense.
Trifling acts:
Section 95: 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.
This means a person will get a defense on inessential or trifle
matters. The person who has ordinary sense and temper
and does not complain about inessential harms will get
a defense. In law of tort the situation is opposite. Some acts
are not trifling in Tort but trifling in Criminal Law.
Acts regarded as trivial. — Cases in this section applied
where a person was convicted for taking pods, almost
valueless, from a tree standing on Government waste land,
and where the plaintiff complained of the harm caused to his
reputation by the imputation that he was travelling with a
wrong ticket, also an offence of misbranding and conduct of a
lawyer in using filthy language in course of cross-
examination.