NOTES FOR MISTAKE AS GENERAL DEFENSE UNDER IPC

LAWXPERTSMV  | UPSC LAW OPTIONAL MAINS NOTES

MISTAKE AS GENERAL DEFENCE UNDER IPC



OFFENCES AND EXCEPTIONS | Section 6 of IPC lays down that throughout the IPC, every definition of an offence shall be understood subject to the exceptions contained in the Chapter entitled “General Exceptions”, though those exceptions are not repeated in such definition.


Chapter IV of the IPC deals with the General Exceptions, comprising of Sections 76 to 106. It exempts a person form criminal liability even if he has committed the actusreus with the required  mens area.


NOTE | These “General Exceptions” are available to all offenses.


Object of Chapter IV : An offence need not occur always with ill mind it may happen as accident, mistake etc . Therefore punishing anyone even under such circumstances would be injustice. In other words it is not possible for every offense to be absolute and without any exception. The Code was drafted upon the assumption that all exceptional circumstances are absent.


For example, every man is assumed to be sane and not under the influence of alcohol. But this is not always the case and the Code makes provisions for such instances by way of this chapter.


So what can be done ?

Instead of adding the limitations or exceptions to every offence, the makers of the Code made a separate chapter which is applicable to the entire Code. Therefore the objects of this chapter can be summarized as:

1. To identify the exceptional circumstances by which a person can escape criminal liability and

2. To remove the necessity of repeating the exceptions for every offence, thereby making the Code simpler and streamlined.


MISTAKE OF FACT AND LAW


NATURE OF EXCEPTION | Exceptions are of two types viz excusable and justifiable. Mistake is an excusable Exception.


RELEVANT LEGAL PROVISION |  It is contained in Chapter IV of IPC in Sections 76 and 79.


TYPES OF MISTAKE RECOGNISED | “Mistake of Fact” and “Mistake of Law”.


LEGAL MAXIM | “Iqnorantia fact doth excuse; Ignorantia juris non excusat.”


MEANING | Ignorance of fact is an excuse, but ignorance of law is not excused


INGREDIENTS FOR MISTAKE TO BE A DEFENCE | In order to constitute an exception the necessary ingredients are as follows:

· There must be an act done

· The act must contain ingredients of an offence

· The act done must be due to ignorance of fact

· There must be good faith in doing the act ie there must be due care and caution or such belief

· Belief that he is bound by law to do the act.

Some or all of the above ingredients shall be present in order to plead the General Exception of Mistake.


EFFECT |  If the act comes under Mistake, the accused will not be punished.


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.


SECTION 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.


REASON |It is the duty of every citizen of the land to know the law of the land, and to behave accordingly. Therefore it is presumed that everyone knows the law of the land.


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.


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.


REASON | This Section is mainly intended to safeguard the subordinates, who are compelled to follow the superior’s orders


CASE LAW | State of West Bengal vs. Shiv Mangal Singh


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.


CAUTION | 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.


Cont………………………..For complete notes subscribe to our course.


UPSC LAW OPTIONAL MAINS 2020 CRASH COURSE STARTED ON 11TH OCT 2020


TO ENQUIRE ABOUT COURSES CONTACT US - 2020 and 2021 – UPSC LAW OPTIONAL MAINS COURSES

Call / Whats app -6382125862

Website – www.lawxpertsmv.com

E-mail – lawxpertsmv@gmail.com


Courses Offered

Recent Post

Achievements