sec 76 and 79 ipc explained and differences PDF

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it contains examples and case laws along with explained portion on each topic. it comes in exam for 12 marks and in judiciary exams also....

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INDIAN PENAL CODE CHAPTER-IV GENERAL EXCEPTIONS

SEC76 76. Act done by a person bound, or by mistake of fact believing himself bound, by law. Nothing is an offence done by a person who by reason of mistake of fact and in good faith thinks himself to be bound by law to that act.

Key words: Bound by law Mistake of fact and not law Good faith Act done by a person bound, or by mistake of fact believing himself bound, by law:

The whole section does not describe the defence of mistake of fact as is the general belief. The section can be divided into two parts, only the second part of which discusses the law relating to the defence of mistake of fact while the first part does not do so. The division is as under: (i) Nothing is an offence which is done by a person who is bound by law to do it.

(ii) Nothing is an offence which is done by a person 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. The first part of the section does not use the word ‘mistake’ at all. It simply says that a thing is not an offence if it is done by a person who is legally bound to do it. When law asks a person to do something which he does, it is not an offence. A person is bound by law to do something when the law puts him under an obligation. Doing a legal duty is not an offence. A person who is bound by law to do something does not commit an offence when he does it. There is no question of mistake of fact, mistake of law or good faith under this part of the section. The second part of the section deals in fact with the defence of mistake of fact. Under this part a thing is not an offence if it is done by a person who because of mistake of fact and not of mistake of law in good faith believes that he is bound by law to do it. When a person is in fact not bound by law to do something but he does that by reason of a mistake of fact and not mistake of law in good faith believing that he is bound by law to do it, it is not an offence. Mistake of fact and good faith must be proved to be present while mistake of law must be proved to be absent under this part of the section. In other words, the well known principles ‘ignorantia facti excusat’ (ignorance of fact is excusable) and ‘ignorantia juris non excusat’ (ignorance of law is not excusable) have been incorporated under this part. There may be a difference between ignorance and mistake but they have been treated as same here.

The expression ‘mistake of fact’ means that there is a misconception in the mind about the existence of a fact. If truth or otherwise of a fact is not known correctly, it is a mistake of fact. ‘Mistake of law’, on the other hand, is a mistake as to the existence or otherwise of a law and includes a mistake as to what the law is. The expression good faith has the same meaning as is given under section 52 of the Code. The Supreme Court has correctly appreciated the distinction between the two parts of the section in State v. Shew Mangal Singh, where the facts were that a police patrol party opened fire under the orders of a Deputy Commissioner of Police, after it was attacked on a dark night. One Assistant Commissioner of Police was injured in the attack. As a result of the firing by the patrol party two persons were killed. After a lapse of about nine years the police personnel were prosecuted for murder. The Supreme Court in the appeal against their acquittal held that the prosecution did not succeed in proving the case against them. There was no question of proving the defence of mistake of fact by the accused. It is clear that the order of firing given by the superior officer to his subordinates was given under commands of the law and, therefore, the patrol party was bound to obey the orders under the first part of section 76 of the Code. Since the first part of the section was applicable there was no question of proving of mistake of fact and good faith by the accused at all. Consequently, they were not held liable for murder. Illustration (a) in this section also states that when a soldier while obeying the orders of his superior officer in conformity

with the commands of the law fires on a mob, he does not commit an offence. The key words in this illustration are ‘in conformity with the commands of the law’. The subordinate officer is protected only when the orders of the superior officer are in conformity with the commands of the law. If such is not the case, he is liable for obeying the order. The expression means that the orders are justified and valid in the eye of law. All the legal requirements of a just order must have been fulfilled, only then is a subordinate officer protected under this section. Naturally, if the orders are blatantly illegal, neither the superior officer who gives the order nor the subordinate officer who executes or follows the same is protected under this section. Such was the case in Charan Das Narain Singh v. State, where information was received that some persons were gambling in a tent. A party consisting of A, a superior officer and B, a soldier, were sent to make an enquiry. The party arrived and surrounded the tent. Soon after the sound of a gun was heard and the deceased who was inside the tent was found dead. At the trial В admitted that he had fired the shot but pleaded that he had done so in obedience to the order of his superior. It was held that the order issued by the superior officer A was wholly unjustified and unlawful and so В was not bound to obey it. Sections 76, 79 or Exception 3 of section 300 of the Code did not apply. Since В was a young man of 20 years of age, was recently recruited and was having an exaggerated notion of his duties and authority wielded by his superior, he was sentenced to rigorous imprisonment of three years only and clemency was recommended for him.

It can be concluded from the above decision that the law does not expect a person to obey illegal orders of his superior. The situation may sometimes be very unhappy for him because when he obeys an illegal order, he may be liable to punishment under law, while if he does not obey an order even though illegal, he may be liable under a departmental action for disobeying his superior officer. Another important conclusion which can be drawn from this decision is that even though the defence may fail, the circumstances of the case may justify mitigation of penalty. A policeman who tortures anyone under the orders of a superior officer is similarly not protected under this section unless he proves that he was acting under fear of instant death. Illegal acts done under the orders of a parent or a master would make the doer liable for the same and this section does not give any benefit to him. But this section protects private persons who are bound to assist the police under section 37, Code of Criminal Procedure, 1973. Section 132, Code of Criminal Procedure, 1973 gives protection against prosecution for certain acts.

Section:79 The first part of the section does not use the word ‘mistake’ at all. Therefore, the statement that section 79 of the Code, along with section 76, deals with the defence of mistake of fact is true only to this extent that each of the sections deals with this defence only under one part while the other part of

each of these sections are devoted to matters other than mistake of fact. The first part states that when any person is justified by law to do something, the doing of that thing is not an offence. A person is justified by law to do something when the law provides him a right to do that thing. According to this part of the section, therefore, doing what is justified is not an offence under law. Matters relating to mistake of fact, mistake of law or good faith do not come up for consideration under this part at all. The second part of the section, like the second part of section 76 of the Code, deals with the defence of mistake of fact. Under this part a thing is not an offence if it is done by a person who because of mistake of fact and not of mistake of law in good faith believes that he is justified by law to do it. When a person is in fact not justified by law to do something but he still does that by reason of a mistake of fact and not of mistake of law in good faith believing that he is justified by law to do it, it is not an offence. Under this part of the section mistake of fact and good faith must be proved to be present whereas mistake of law must be proved to be absent.

Firing at a suspected thief but killing another in the process In Dakhi Singh v. State a suspected thief who had been arrested by the police constables escaped from a running train. One of the constables pursued him with a view to effect his rearrest. When he was not in a position to apprehend him, he fired at him but in the process he hit the fireman of

the railway engine who was killed. The defence of mistake of fact under sections 76 and 79 of the Code was rejected. The Court held that there was no right to shoot under section 46 of the Code of Criminal Procedure, 1898 (corresponding to section 46 of the Code of Criminal Procedure, 1973). However, exception 3 to section 300 of the Indian Penal Code was held to be applicable and the accused was held liable under section 304, Part II of the Indian Penal Code.

Firing at a supposed ghost or evil spirit In Bonda Kui v. Emp., the appellant aged about 50 years, and her niece were the sole occupants of a house at the time of the incident, the male members being away at Khalihans. In the middle of night the appellant saw a form apparently a human being dancing naked with a broom-stick tied on one side and a tom mat around her waist. Believing it an evil spirit or a thing which eats up human beings, the appellant with repeated blow with a hatchet felled the thing on the ground. She told her niece to come and see the spirit. At the suggestion of the niece the Maunda was informed. The deceased was recognised later as the wife of a brother of the appellant’s husband and was about 55 years old. Reversing the judgment of conviction and sentence of six years’ imprisonment, the Patna High Court allowed the defence of mistake of fact under section 79 of the Code and observed that the state of society to which the appellant belonged and the fact that she was a superstitious woman were important considerations to decide as to whether she had acted in good faith.

On the other hand, in Hayat v. Emp., the accused in the early gloaming saw a stooping child in a place which was believed by him and other villagers to be haunted. Believing the child to be a spirit or demon he attacked it and gave blows which resulted in its death before he realised his mistake. He was convicted under section 304-A of the Code and his defence under section 79 of the Code was rejected on the ground that he had not acted in good faith.

Interrogating a person carrying allegedly stolen property The accused, a police constable interrogated a person, moving in the early morning with three pieces of cloth under his arm, on the suspicion that he was carrying stolen property. Not getting a satisfactory reply from him and on being refused inspection, he arrested him. The Inspector, however, released him. The High Court set aside the conviction on the ground that the accused had acted in good faith under mistake of fact under section 79 of the Code. His good faith was apparent when he started questioning the person with a view to know about the truth of the matter.

Alleged wrongful restraint Certain persons went to execute a warrant of arrest against a judgment-debtor. When they reached near the house, they saw a closed palanquin coming out of the male apartments of the house. Suspecting that the judgment debtor was escaping, they stopped and examined it even though the person accompanying it protested and said that a pardanashin lady was in it. In fact there was a pardanashin lady of rank in the palanquin. It was held that the accused

were protected under this section as they had acted under a mistake of fact in good faith. Where the accused helped the police to stop a cart which they believed in good faith was carrying smuggled rice but ultimately their suspicion proved unfounded, it was held that there was no liability for wrongful restraint and the accused were entitled to the benefit of this section.

Alleged obscenity In Raj Kapoor v. Laxman, the Board of Censors had given a certificate to the petitioner under the Cinematograph Act, 1952 permitting public exhibition of a film. On being charged under section 292 of the Code, the petitioner contended that once the certificate permitting public exhibition was given by a competent authority under the Act of 1952 they could not be held liable even if the film be obscene, lascivious or tending to deprave or corrupt public morals. The Supreme Court, agreeing with the contention, held that once the competent authority in good faith issued the necessary certificate, the petitioner producer and other agencies were protected under this section read with section 5-A of the Act of 1952 at least because of their bona fide belief that the certificate is justificatory.

Believing a human being to be an animal In a moment of delusion the accused thought his only son to be a tiger. He attacked him with an axe under a mistake of fact in good faith under the impression that he was justified by law to do so against a dangerous animal. This section was held to be applicable.

Transfer of securities The securities of a pledger bank, the Cooperative Bank, were transferred by the Managing Director of the exchange bank. On being prosecuted for committing the offence of criminal breach of trust, the accused Managing Director pleaded that he had acted under the mistake of fact that the pledger bank was indebted and also that the exchange bank had a right to transfer. The Supreme Court rejected the defence on the ground of absence of good faith in his belief that the pledger bank was indebted to his bank.

Believing a moving object to be a bear The accused who was guarding his maize-field at night saw a moving object in the field. Believing it to be a bear he shot an arrow on the object. It was discovered later the arrow had killed the deceased who had entered into the field with the object of stealing maize. It was held that the arrow was shot under a bona fide belief in good faith that the moving object was bear and consequently the accused was protected under this section or section 80 of the Code.

DIFFERENCE BETWEEN MISTAKE OF LAW AND MISTAKE OF FACT Mistake of law The section specifically says that there should be a mistake of fact and not mistake of law. For an Indian law to operate it is not necessary that the same must be published or be made known outside India. Mistake of law does not save one from

liability but it may be relevant for determining the sentence to be imposed. English cases The two English cases which have assumed importance with respect to the defence of mistake of fact are R. v. Prince, and R. v. Tolson. In the former the accused was charged with the offence of kidnapping a minor girl. He pleaded mistake of fact as he believed that the girl was not a minor. The defence was rejected because kidnapping was a wrong in itself and, therefore, made a crime. In such cases there could not be a good faith. In the latter case the accused was charged with the offence of bigamy having married a second time within a period of seven years after she had been deserted by her first husband. The Court allowed the defence of mistake of fact as it was satisfied that at the time of her second marriage she in good faith believed her first husband to be dead.

Sections 76 and 79 of Chapter-IV (General Exceptions) of the Indian Penal Code, 1860 explain the provisions about “Mistake of Fact” and “Mistake of Law”. These provisions are based upon the common law maxim “Iqnorantia facti doth excusat; Ignorantia juris non excusat.” (Ignorance of fact is an excuse, but ignorance of law is not excused.) Mistake of fact is a good defence in criminal law, which is explained in two Sections 76 and 79. Both of these Sections are included in General Exceptions (Chapter-IV). Meaning:

Mistake: An unconscious ignorance or forgetfulness of a fact, past or present, material to the contract, or a belief in the present existence of a thing material to the contract, which does not exist; some intentional act, omission, or error arising from ignorance, surprise, imposition, or misplaced confidence; in a legal sense, the doing of an act under an erroneous conviction, which act, but for such conviction would not have been done. Mistake of fact: A mistake which takes place when some fact which really exists is unknown; or some fact is supposed to exist which really does not exist. Mistake of law: A mistake of law occurs when a person having full knowledge of facts comes to an erroneous conclusion as to their legal effect. Sec. 76. Act done by a person bound, or by mistake of fact believing himself bound, by law: 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. Illustrations: (a) A, a soldier, fires on a mob by the order of his superior officer, in conformity with the commands of the law. A has committed no offence.

(b) A, an officer of a Court of Justice, being ordered by that Court to arrest Y, and, after due enquiry, believing Z to be Y, arrests Z. A has committed no offence. Ingredients: 1. “Mistake of fact and not by reason of a mistake of law”: This phrase in the Section means that a mistake of fact is excusable, but a mistake of law is not excusable. It is the duty of every citizen of the land to know the law of the land, and to behave accordingly. If a person says, “I do not know the law and due to not knowing the law, I did the offence.” It is not excusable. However, if a person did a wrongful act by a mistake of fact with a good faith and honest belief that he was bound to do, he may be excused. It is presumed that everyone knows the law of the land. Hale writes: “Ignorance of the municipal law of the Kingdom, or of the penalty thereby inflicted upon offenders, does not excuse any, that is of the age of discretion and compos mentis, from the penalty of the breach of it; because every person of the age of discretion-and compos mentis is bound to know the law and presumed so to do.” 2. “Good faith”: The words “good faith” means “the act done with due care and attention”. They also include the genuine belief of the person. The burden of proof lies upon the person who wants to take the shelter of good faith. 3. “In good faith believes him to be bound by law”:

This phrase means that the accused should be in good faith and he must be under confidence that he was bound by law to do that act. This Section is mainly intended to safeguard the subordinates, who are compelled to follow the superior’s orders, illustrations (a) and (b) appended to Section 76 also reveal the same. This Section does not give protection to those people who act against the law, i.e., mistake of law. State of West Bengal vs. Shiv Mangal Singh (1981 CrLJ 1683) Brief Facts: While the police were patrolling in the outskirts of the town in the night, some armed people attacked them, and an Assistant Commissioner of Police was badly injured. The Deputy Commissioner of Police ordered firing against the unknown persons. Two persons were died. The Court held that the police were protected under Section 76, being they were bound to protect law and order. It does not mean that every superior officer’s firing order is protected by Sec. 76 or 79. The order must be given in good faith, and to protect the peace, law and order. The subordinate officers should feel that the order given is given in good faith. Torturing the innocent persons, under trial prisoners, lock-up deaths, etc., is not protected under Sec. 76. Recently a police tour went into forest nearby Adilabad District searching Naxalites. ...