PENAL CODE CLASS: Second Minutes

“GENERAL EXCEPTIONS”

Section 76-79, Prepared by (ARMAN (Roll: 42)+ IQBAL(Roll: 71)

See.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 solder, 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 of arrest Y, and, after due enquiry, believing Z to be Y, arrests Z. A has committed no offence.

SYNOPSIS:

1. Analysis of this section

2. Example

3. Elements under this section

4. Explanation

5. Differences between Mistake of law & Mistake of fact

6. Mixed Mistake of law & Mistake of fact

(1) Analysis of this section: Under the section 76, immunity has been given to the offender from all forms of liabilities under two ways (a) Anything done in good faith under legal obligation (b) Anything done in good faith under the mistake fact. So, if any person commits an offence under the mistake of fact or through legal obligation from which he bona fide believes that he is bound to do that act, then that act will not be treated as an offence. He will be removed from any kind of liabilities under this section.

(2) Example: Under ‘legal obligation: Mr. A giving false representation as magistrate to B, Seeking assistance of B to arrest C who is escaping from a place. Actually, A was not an offender. But ‘B’ has been understood by ‘A’. C, as an offender. Subsequently it was proved that Mr. A was false Magistrate and c was innocence. So, if ‘A commits murder to C, B will not be liable for abetment because he had done it under legal obligation under section 42 of CRPC. But, ‘B must have bona fide intention, otherwise he will be liable as abettor.

Under “mistake of fact”: Suppose, Mr. A is a police officer, at the time of investigation of offence, under the mistake of fact arrested B in the place of ‘C’. If Mr. A makes such arrest under mistake of fact in bona fide, then he will be given immunity under this section.

(3) Elements under this section:

a. Act done under the legal obligation

b. Act done under the mistake of fact

c. Act not done under the mistake of law.

d. Act done under bona fide intention.

(4) Explanation: (a) Act done under legal obligation: If any subordinate officer does any act under the order of superior officer and according to the law, that subordinate officer is bound of do that, then such subordinate office will not be liable. For example, Mr. A who is a police officer who has been given permission to fire to an unlawful assembly under the order of deputy commissions, then that police officer will not liable. At the same, it should be born in mind that that act must be done in bona fide intention. At the same time if such subordinate officer can be able to realize that order given by superior officer is unlawful, then he is not bound to follow such order. If he knowingly does such unlawful act then such subordinate officer will be liable.

AIR (1981) SC 1917: Deputy commissioner ordered to police commissioner firing on unlawful assembly, is valid and justified under section 76.

Chaman Law (1940) 21 Lah 521: For a manifestly illegal superiors order, that is an order which is illegal on the fact of it such as to kill an innocence by- stander, on to torture an accused in custody or to fire on a group of people who have assembled for a lawful purpose, the superior order affords no protection to a subordination.

(b) Act done under mistake of fact: Mistake of fact means an honest and reasonable belief in the existence of circumstances although that is not. According to black’s law dictionary: Mistake of fact means a mistake about a fact that is material to a transaction, any mistake other than a mistake of law. Under section 75 of the penal code, 1860 if any person does any act under mistake of fact, he will be removed from any kind of liability under this section.

AIR (1924) Bomboy 53: A police officer arrested a wrong person under bona fit mistake of fact is not liable under section 76.

Tolso case (1889) 23QBD: The accused was convicted to bigamy, having gone through the ceremony of marriage within seven years after he had been deserted by her husband. She believed in good faith in reasonable ground that her husband was dead .It was held that a bona fide belief on reasonable ground in the death of husband, at the time of second marriage afforded a good defence to the indictment and that conviction was wrong.

Chirangi (1952) Nag 348: Where an accused owing to defect in his vision and the effect of a bona fide believed that his son of whom he was very found was a tiger and caused total injuries to him with an axe in a moment of delusion, he was protected under this section and his act under bona fide mistake of fact.

So, from the section 76, we can say that it any person does any act under mistake of fact and under bona fits intention, fully immunity from any kind of liability will be given to him.

(c) Act not done under mistake of law: Ignorance of law is no excuse. So, if any person does act under the arrogance of law, he will not get any immunity. Because, It is said that every person knows the law of the country. To get any immunity under section 76, that act must be done under mistake of fact but not mistake of law.

Barronet (1852) Dearsly 51: Two Frenchmen were charged with willful murder because they had acted as seconds in a duel in which one man had met his death. They alleged that they were ignorant of the fact that by the law of England killing an adversary in a fair duel amounted to Murder. But the plea was overruled.

(d)Act done under bona fide intention: Good faith has been defined in section 52 of the penal code. Good faith requires care and caution and prudence in the background of context and circumstance.

AIR 1981 SC 1514: Where an accused acted in good faith is a question of fact and rested on evidence and not conjectures.

(5) Differences between Mistake of law and Mistake of fact:

(a) Mistake of fact is a good defence to commit a crime. Whereas, Mistake of law is no excuse.

(b) In civil law, mistake of fact is not an excuse, there is a strict civil liability for mistake of fact. Whereas, In criminal law absolute criminal liability for a mistake is an exceptional.

(6) Mixed mistake of law and Mistake of fact: AIR (1951) orissa 284: It there were mixed mistake of law and fact, then mistake of fact will prevail.

Sec.77: Act of judge when acting judicially: 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.

SYNOPSIS:

1. Analysis of this section

2. Example

3. Meaning of acting judicially

4. Judge whether liable for acting beyond jurisdiction

5. Illegal refusal of bail

6. Unwarranted delay for disposal of cases

(1) Analysis of this section: If any judge does any act which is an offence, at the time of performing judicial function, believing himself in good faith that authority has been given to him to do that act, the act will not be treated as offence. Under this section a judge is exempted not only in those cases in which he proceeds but also in case where he in good faith, exceeds his jurisdiction and has no lawful power.

(2) Example: If any judge gives any defamatory statement at the time of performing judicial function believing himself in good faith he is bound to do that, he will not liable.

(3) Meaning of acting judicially: The word ‘Judicial’ may refer to the discharge of duties exercisable by a judge on justice in the court. The phrase acting judicially also occurs in judicial officer’s protection Act, which protects a judicial officer from civil liability. But this protection is not an absolute protection but a qualified one.

AIR 1969 PI 94: Where magistrates act illegally, mala fide and without justification in the matter of arrest, he can claim no immunity.

(4) Judge whether liable for acting beyond jurisdiction:

AIR 1934 Nagpur NAH 123 Judge will not liable if acting beyond jurisdiction if it made bona fide without any illegality.

(5) Illegal refusal to bail: If any judge makes any illegal refusal of bail, then that judge whether will punished into wrongful confinement: that judge will be punished if. (a) improper motive (b) absence of good faith

(6) Unwarranted delay for disposal of case: If any judge makes unwarranted delay for disposal of cases, he will be liable for that.

Sec.78: Act done pursuant to the judgment or order of Court: 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.

SYNOPSIS:

1. Analysis of this section

2. condition

3. Example

4. Mistake of law may be a good defence under this section

(1)Analysis of this section: This section is merely collateral to section 77. It affords protection to the officer acting under the authority of the judgment or order of a court which has no jurisdiction of giving of such judgment and order. So, It’s clear that a judge or any person empowered by law in any proceeding to give judgment or order will get immunity under section 77 & any officer will get immunity under section 78 while executing such judgment or order.

(2) Condition: condition is that-

(a) Officer in good faith believes that the court had such jurisdiction.

Notwithstanding the court may have had no jurisdiction to pass such judgment or order.

Jhon Anderson,7 WR cr 12: where an officer authorized to arrest a person in execution of civil process, is informed that the person is on his way to court to give evidence in some other cases. Nevertheless the officer arrests such person,the action of the officer is not justified & therefore will not be protected.

(3) Example: Mr. A, is a second class judicial magistrate authorised to give imprisonment not exceeding three years under section 32 of CR.P.C 1898. If he gives imprisonment of a term exceeding three years in a bona fide belief that he is authorized to do that he will be given immunity under section 77.At the same time,If any police officer arrests any person under such judgment given by such second class Magistrate,then such police officer has also been given immunity under section 78.Provided that, that police officer believes that such second class judicial magistrate has such jurisdiction although not.

(4)Mistake of law may be a good defence under this section: Raising mohmia (1962) 1 cr LJ 714: An oral order given by the judge to bailiff to keep a person in custody is not any order and bailiff obeying such order is not protected.Where a person kills his servant bona fide thinking his servant to be a burglar he commits no offence.

Sec.79: Act done by a person justified, or by mistake of fact believing himself justified, by law: 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.

Illustration

A sees Z commit what appears to A to be a murder. A, in the exercise, to the best of his judgment, exerted in good faith of the power which the law gives to all persons of apprehending murderers in the act, seizes Z, in order to bring Z before the proper authorities. A has committed no offence, though it may turn out that Z was acting in self-defence.

SYNOPSIS:

1. Analysis of this section

2. Example

3. Elements under this section

4. Explanation

5. Differences between section 76 & 79

(1) Analysis of this section: It any person does any act which is justified by law or under bona fide mistake of fact, believing himself in good faith to be justified by law, he will not liable under this section immunity has been given to the accused under two ways (a)bona fide mistake of fact (b) legal justification.

(2) Example: If any parents make any slight harm to the child for the governance of the child, then the act of that parent will be justified by law, and parents will not get any punishment. But severe harm to the child will not give any immunity under this section.

(3) Elements under this section:

(a) Act done under legal justification

(b) Act done under Mistake of fact

(d) Act done under good faith

(4) Explanation:

a) legal justification: If anything is done through a lawful way which is justified by law, then that act will get benefit under this section. Black’s law dictionary: A lawful or sufficient reason for one’s act or omissions; any fact that prevents an act from being wrongful.

So, in order to be treated an act under legal justification, the defendant must show that the harm or evil that resulted from taking the action was less than the harm or eivil that the law creating the offence changed was seeking to prevent. For this reason, slight harm to children by the parent where the slight harm is not more than prescribe by law, has been justified under this section.

(b) Act done under mistake of fact

(d) Good faith

(5) Differences between sections 76 and 79

(1) Section 76 says about legal obligation. Section 79, says about legal justification.

(2) Section 78, is real or supposed legal obligation & section 79, is real or suppose legal justification.

(3) Under section 79, the act should be done in such way, that act not exceed, what is justified by law. For example, slight harm to child for governance but not severe. Under section 76, legal obligation is to perform any lawful order but not to do an unlawful order.

………………………………………………………………………………………

Section 80-83, Prepared by (Boni Amin (Roll: 83)

Section 80: Accident in doing a lawful act:

Nothing is an offence which is done by accident or misfortune and

without any criminal intention or knowledge in the doing of a lawful act

in a lawful manner by lawful means and with proper care and caution.

Essential material and explanation:

(1) That the act was done by accident or misfortune:

An effect is said to be accidental when the act by which it is caused

is not done with the intention of causing it, and when its occurrence as a

consequence of such act is not so probable that a person of ordaining

prudence out, under the circumstances in which it is done, to take

reasonable precaution against it. An accident is something that happens

out of the ordinary course of things. The idea of something tortious and

unexpected is involved in the world accident.

(2) That it was done without any criminal intention or knowledge:

To constitute an act a crime, it must, except the case of certain

statutory crimes, be accompanied by a criminal intent or mens rea. An

intention to offend against the penal provisions of an Act constitute mens

rea. The intention may be express or implied. It is express if the person

doing the act expects the resulting situation. It will be implied or

presumed if the resulting situation is the natural and probable

consequence of his act for every person is presumed to intent the natural

and probable consequence of his act.

(3) Doing of a lawful act in a lawful manner by lawful means:

The act must be a lawful act and must be done with a lawful

manner by lawful means. If an act is not lawful or is not done is a lawful

manner by lawful means the section can have no application. “If a blow is

aimed at an individual unlawfully and it strikes another and kills him, the

accused cannot escape under”. [AIR 1924, Oudh 228]

(4) Proper care and caution:

To get protection under this section the accused must proof that the

act was done with proper care and caution. The caution which the law

requires is not the utmost that can be used, it is sufficient if it is

reasonable, such as is usual in ordinary and similar cases, such as have

been found by long experience in the ordinary course of things to answer

the end that end being the life and property.

Relating case reference:

(1) Shooting case:

Where two hunters agreed to take up different position in a forest

and lie in wait for game and one of them hearing a result and thinking

that a porcupine was approaching shot and killed his companion, it was

held that o offence was committed under sec 304A as the killing was an

accident under section 80. (1901) 3 BOM-LR 679

(2) Driving accident:

It is the duty of every man who drives any carriage to drive it with

such care and caution as to prevent, as far as in his power, any accident or

injury that may occur. (1924) 171 ER 1213

(3) Accidents in games and sports:

Where there is no foul play or the doing of an unlawful act on the part of a player, an injury caused to another player in the course of the

play is not an offence under this section. AIR 1950.

Comment:

This section exempts the doer of an innocent or lawful act in an

innocent or lawful manner and without any criminal intention or

knowledge from any unforeseen evil result that may ensure from accident

or misfortune.

Section 81 : Act likely to cause harm, but done without criminal

intent and to prevent other harm

Nothing is an offence merely by reason of its being done with the

knowledge that it is likely to cause harm, it is be done without any

criminal intention to cause harm, and in good faith for the purpose of

preventing or avoiding other harm to person or property.

Essential materials and explanation:

(1) Without any criminal intention:

Under no circumstances can a person be justified in intentionally

causing harm, but if he causes harm without any criminal intention and

merely with the knowledge that it is likely to ensure, he will not be held

responsible for the result of his act, provided it be one in good faith to

avoid or prevent other harm to person or property. Mens Rea is an

essential ingredient in every offence except in three cases, namely (a)

cases not criminal in any real sense which in the public interest are

prohibited under a penalty (b) public nuisance (c) cases criminal in from

but which are really only a summary mode of a civil right. An intention to

offend against the penal provisions of an Act constitute mens sea. Every

offence under the code virtually imports the idea of criminal intent or

mens rea.

(2) Good faith:

To get the protection under this section the accused must proof that

the act was done with good faith. Good faith is essential element of this

section.

(3) Preventing or avoiding other harm to person or property:

Motive may sometimes justify the causing of harm. Harm may be

caused to prevent greater harm if such harm is unintentionally committed

and is done in good faith of prevent the greater harm if being done.

Related case reference:

(1) Veeda menezes Vs Yusuf khan, AIR-1966 SC 1773

Where a chief constable not in his uniform came to a fire and

wished to force his way past the military sentries placed round it, was

kicked by a sentry, it was held that as the sentry did not know how he

was, the kick was justifiable for the purpose of preventing much greater

harm under this section and as a means of acting up to the military order.

(2) Where a sepoy was stationed to guard a burning house under orders

not to allow any one to intrude and chief constable, not in uniform,

attempted to enter, and the sepoy, not knowing who he was, given him in

good faith, not unnecessary, a vialent kick in the course of the fracas, it

was held that the sepoy was protected under this section as the kick was

given in good faith for preventing much greater harm. (1893) ILR 17

Bom 626.

(3) Where the accused dug up a round in view of the fort that water had

accumulated in his field the section was held inapplicable as the act was

done by the accused with intention of causing damage to the road. 1967

ALL WR (HC) 572

Comment:

An act which would otherwise be a crime may in some cares be

excursed it the person accused can show that it was done only in order to

avoid consequence which could not other wise be avoided. As in self-

defense so in the prevention of harm the accused is faced with two

choices both resulting in some harm and of sheer necessary to avoid a

greater harm he has to commit an act which would otherwise be an

offence.

Section 82 : Act of a child under nine years of age

Nothing is an offence which is done by a child under nine years of

age.

Comment:

The immunity of children under nine years of age from criminal

liability is as confined to offenders under the code only but extends to

offences under any special or local law by virtue of section 40. A child

under nine years of age con not distinguish right from wrong and if he is

prosecuted the very fact that he is below nine years is a sufficient answer

to prosecution.

Section 83: Act of a child above nine and under twelve immature

understanding

Nothing is a offence which is done by a child above nine years of a

age and under twelve, who has not attained sufficient maturity of

understanding to judge of the nature and consequences of his conduct on

that occasion.

………………………………………………………………………………………

Section 84-87, Prepared by (Ibrahim (Roll: 38 Re-ad)

Section: 84

Act of a person of unsoundmind-

provisions relating to the section

Nothing is an offence which is done by a person who at the time of

doing the act due to unsoundness of mind-

(a) is incapable of knowing the nature of the act or

(b) is incapable of knowing that he is doing something wrong or

contrary to Law.

Explanation of the section

What is necessary to be established under this section are-

(a) That the accused was of unsound mind at the time of doing act.

(b) he was incapable knowing the nature of the act he committed

or that he was doing a wrongful act.

At the time of doing

To get the benefit of section 84 of the penal code 1860 It must be

shown that the accused was labouring under such a defect of reason, from

disease of the mind at the time of doing the act that he was incapable of

knowing the nature and quality of the act or if he know the nature but he

did not know he was doing wrong. If he know or knew it, he is or was

responsible. A plea of insanity at the time of trial will not avail the

accused.

Case reference

Ajaya Mahakud Vs state of orissa 1993 Cr LJ 1201

In this case the accessed has an deliberation or preparation to

commit the crime. He neither concealed nor ran away nor tried to avoid

detention and committed the crime openly. The accused was entitled to

get the benefit of sections 84 of the penal code.

Unsoundness of mind

Unsoundness of mind means naturally impairing the cognitive

faculties of the mind that can form a ground of exemption from criminal

liability. The nature and extent of the unsoundness of mind required being

such as would make the offender incapable of knowing the nature of the

act.

State Vs Nazrul Islam 57 DLR (2005)

In this case, the accused killed brutally when he was in same. As

per the witnesses of the prosecution, the accused and his wife was on

good relations and previously no such incidence relating to commission

of crime happened. At the same time, 4/5 days, before the commission of

crime the accused was tied by the people near the bazar etc mad condition

and after the commission, he did not try to conceal nor avoid the arrest

and lead a comfortable life. So, the Appellate division of the Supreme

Court held that he was totally/completely insane at the time of

committing the crime. Besides, A made man is best punished by his own

madness he was finally acquitted.

There are four kinds of persons who don’t possess a sound mind-

(i) Idiot

(ii) Person becoming unsound through disease of mind

(3) lunatics

(iv) The person who is drunk

Comment:

In conclusion, it can be said that in giving exemption from criminal

liability, me court has to consider the facts and circumstances under

which the offence was committed. What was previous condition of the

accused and condition after the commission of the crime. Is there any

prior rivalry between the parties or is there any mental ingredients for

commission? One thing should remember that in case of bringing a case

within the General Exceptions of the penal code the burden of proof lies

upon the accused. The accused here has to prove beyond reasonable

doubt that the accused was insane at the time of commission of offence

providing medical certificate and circumstances.

Section 85:

Act of person incapable of judgement by reason of intoxication

caused against his will-

Provisions relating to section 85

Nothing is an offence which is done by a person who, at the time of

doing it, is due to intoxication-

(a) incapable of knowing the nature of the act or

(b) incapable of knowing that he is doing something wrong or

contrary to Law.

Provided that the thing which intoxicated him was administered to him

against his will or without his knowledge.

Explanation of the section:

By explaining this section we get-

Involuntary drunkenness

The thing which intoxicated him was involuntary. Drunkenness

will be involuntary when it is administrated to him cither (i) by force or

(ii) by fraud. To be a ground of exemption for involuntary drunkenness,

the accused must prove that he was so drunk that he didn’t know the

nature of the acts he was doing.

Voluntary drunkenness

Voluntary drunkenness is no excuse for the commission of the

crime. At the same time drunkenness doesn’t make an offence the more

heinous. It is a species of madness for which the madman is to blame.

Too voluntary drunkenness either by alcohol or by drug is not at all a

defence. It is also no excuse that because of it he failed to resist the

impulse to act in a certain way.

Case reference

Bablu Vs State of Rajathan (2006) AIR SC held that

Evidence of drunkenness which renders the accused incapable of

forming the specific intent essential to constitute a crime should be taken

into account with the other facts proved in order to determine whether he

had or not this intention.

Section 86:

Provisions of section 86

(a) In cases where an act done in not an offence unless done with a

particular knowledge or intent-

(b) A person who does that act in a state of intoxication shall be

liable to be dealt with as if he had the same knowledge as he

would have if he hadn’t been intoxicated;

was administered with his knowledge or by his will.

Explanation of section

Offence requiring particular knowledge or intent-

This section provides that a person voluntarily intoxicated will be

deemed to have the same knowledge as he would have if he had not bean

intoxicated. There are certain offence requiring particular knowledge or

intention. In certain case knowledge is essential ingredient in other cases

intention is essential ingredient this section enumerates a person shall be

liable for committing offence in a state of intoxication as if he had the

same knowledge if he did not become drunk for the offence where

particular knowledge or intent is required.

But this section doesn’t say with regard to intent, only making

presumption in respect of knowledge. Thus, this section attributes to a

drunken man the knowledge of a sober man when judging of his action.

This knowledge is the result of legal fiction and constructive intention

can’t invariable be raised.

Intoxication with knowledge or by willingness

Provision lies in this section that the things which intoxicated him

was administered with his knowledge or by his will, never without his

knowledge or against his will.

So, if the accused tries to prove that he was intoxicated without his

knowledge the burden of proof lies upon him.

Case reference

State of Maharashtra Vs Ashok Yashwant (1987 (Bomb)

Held that there is a presumption so far as knowledge is concerned,

there is no such presumption with regard to intention. This Attributes

drunken man knowledge of sober man.

Section 87

Provisions relating to the section

Nothing in an offence-

(a) Which is not intended to cause death or grievous hurt and

(b) Which is not known by the doer to be likely to cause death or

grievous hurt.

by reason of any harm which it may cause or be intended by the doer to

cause to any person above eighteen years of age who has given consent to

suffer that harm.

by reason of any harm which it may be known by the doer to be likely to

cause to any such person who has consented to take the risk of that harm.

Explanation of the section

Consent this section deals with the protection of a person who

causes injury to any other person with his consent who is capable of

giving that consent but there was absence of intention of the person to

cause death of grievous hurt.

As we know from maxim volenti non fit injuria. He who consents

suffers no injury this rule in founded upon two simple propositions-

(i) that every person is the best judge of his our interest;

(ii) that no man will consent to what he thinks harmful to

himself. So, every man is free to inflict any harm or damage

what over he desires on his own property or person and if he

suffers himself injury by its being done by another then the

doer commits no offence.

This section doesn’t permit a man to give his consent to anything

intended or known to be likely to cause his own death or grievous hurt.

Case reference

Purushottom (1963) Cr. LJ AIR (1963) Bom.

Consent given by a misconception of fact is no consent.

Act itself when unlawful

Where an act is in itself unlawful, consent can never be an

available defence. These are well established exceptions to the rule, e.g.

in the case of friendly sporting contests or rough but innocent horseplay.

Essential materials and explanation

(1) Age over nine years and under twelve’s years:

An act of child over 9 years of age and under 12 years should not be

taken as an offence unless it can be shown that he has attained sufficient

maturity of understanding the consequence of his conduct.

(2) Maturity of understanding:

Where the accused in below 12 years of age (though above 9

years), the issue as to his having attained sufficient maturity of

understanding to judge of the nature and consequence of his act is

essential to determine the question of his guilt. But if the accused is past

the age of 12, the question of his age does not become totally irrelevant.

The question of his maturity of understanding he has attained will be

relevant in the context of the sentence to be passed against him in the

event of his conviction.

(3) Nature and consequence of his conduct:

The consequence of his conduct mentioned in his section are not

the penal consequence to the offender, but the natural consequences

which flow from the voluntary act, such as, for instance, that when fire is

applied to a substance, it will burn, or that a heavy blow with an axe or

sword will cause death or grievous hurt.

Related case reference:

(1) Where a child of nine years of age stole a necklace worth RS. 280,

and immediately after wards sold it to the accused for five annas, the

accused could be convicted of receiving stolen property, because the act

of the child in selling the neeklace showed that he had attain a sufficient

maturity of understanding to judge of the nature and consequences of his

conduct on that accession within the morning of this section. Krishna

(1883) 6 Mad 373

(2) Under English law the presumption is that a boy under 14 is incapable

of committing the offence of rape. His presumption does not apply to

subcontinent, where the question is one of fact in each case. AIR 1915

All 134.

Comment:

Where the accused is a child above 9 years of age and under 12, the

incapacity to commit an offence only arises when the child has not

attained sufficient maturity of understanding to judge of the nature and

consequences of his conduct, and such non-attainment would have

apparently to be specially pleaded and proved, like the incapacity of a

person who, at the time of doing an act charged as an offence, was

alleged to have been of unsound mind under this section it has got to be

shown that the accused is not only under 12 but also has not attained

sufficient maturity of understanding.

………………………………………………………………………………………

Section 88-91, Prepared by (Amzad (Roll: 21 Re-add)

Section: 88

Nothing which is not intended to cause death, is an offence by reason of

any harm which it may cause, or be intended by the doer to cause, or be

known by the doer to be likely to cause, to any person for whose benefit it

is done in good faith, and who has given a consent, whether express or

implied, to suffer that harm, or to take the risk of that harm.

Infliction of Harm

Infliction of harm may be valid for following grounds, if the harm is-

(i) for the benefit of the person to whom it is caused.

(ii) not intended to cause death

(iii) inflicted by express or implied consent

(iv) is done on good faith

(v) the consent is free and intelligent to take risk.

Explanation:

This section sanctions the infliction of any harm for the benefit of

the victim. This condition is first and foremost because any person cannot

avail of this section after inflicting harm without benefit of the person to

whom it is caused.

R.P. Dhanda (Dr) Vs Bhurelall 1981 Cr LJ 1316 MP

The intentional causing of death, with malafide intention, without

consent whether express or implied will not protect an accused person.

Quasi-Parental Anthority:

A teacher, who administers, for the benefit of a student, in good

faith, moderate and reasonable punishment is protected under this section

and is not guilty of an offence.

Doctors without a certificate:

An unqualified doctor or practitioner who has not adequate

knowledge and expertise regarding treatment or carries out treatment

without medical certificate or license cannot claim the plea of good faith

and thereby cannot invoke protection under this section as they do not

have good faith as defined under sections. 52.

Difference between Sec. 88 ands 87:

Both the section allows infliction of harm with good faith without

intention to cause death.

In Section 87

(i) age limit (184) is given

But in section 88 no age limit is given for the victim.

(ii) In section sec. 88 a condition “for the benefit of the person to

whom it is caused” is given but in Sec. 87 this condition lacks.

Section: 89

Provisions of this section:

Nothing is an offence which is done

(i) in good fuith

(ii) for the benefit of the person

(iii) by express on implied consent of the guardian or the person

having lawful charge.

. The persons to whom such harm is inflicted must be either

(a) a person under 12 years of age or

(b) an insane on unsound mind

. An accused person cannot shade be kind this section for-

(i) Intentional causing of death or attempting to cause death.

(ii) The person doing it knows the consequence that this hurt be

likely to cause death for any purpose other than preventing

of death or grievous hurt, or the caring of any disease or

infirmity.

(iii) Voluntary causing of grievous hurt or attempting to cause

grievous hurt unless it be for the purpose of preventing death

or grievous hurt or curing of any disease or infirmity.

(iv) Abetment of any offence.

Section: 90

This section does not define consent but describes what is not

consent. This section says that a consent is not a true consent it is given-

(i) by a person under fear of injury.

(ii) by a person under a misconception of fact.

(iii) by a person of unsound mind.

(iv) by a person who is intoxicated

(v) by a person under twelve years of age.

Explanation:

Measurement of consent:

Consent is an act of reason which must be accompanied with

deliberation, the mind weighing as in balance, the good and bad on each

side. Consent means an active will in the mind of the person doing the act

knowing the magnitude of the act being done, is essential to a consent to

an act.

In Prakash Chandra Vs State of Rajasthan 1991 Cr LJ 2566

Submission and Consent:

There is difference between consent and submission. Every consent

involves a submission but every submission does not involve a consent.

Mere submission by one who does not know the nature of the act done

cannot be consent.

Misconception of fact:

Consent given under misconception of fact is invalid if the person

to whom such consent is given is aware of its existence. An honest

consent by both the panties, however, does not invalidate the consent.

In the case of Poonai Fatemah (1869) 12 WR (Cr) 1

The accused who professed to be shake-charmer persuaded the

deceased allow himself to be bitter by a poisonous shake, inducing him

that he had power to prefect him from harm. It was held that the consent

given by the deceased allowing himself to be bitten by snake did not

protect the accused.

In RV Tabssum, The Times, May 2006 (CA)

The accused deceived three woman into consenting to expose their

breasts for medical examination. He was not qualified or trained for the

purpose holding him guilty of indecent assault, the court said that the acts

were indecent if performed without consent and there was no genuine

consent because the complainants had given consent only to an act of

medical nature not for any other reason. The fundamental quality of the

act was significantly different that it rendered any consent irrelevant.

Section: 91

The exceptions in sections 87, 89 and 88 do not extend to acts

which are offences 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 consent or on whose behalf the consent is given.

Explanation:

Causing miscarriage:

Causing miscarriage (unless caused in good for the purpose of

saving the life of the woman) is an offence independently of any harm

which it may cause it or be intended to cause to the woman therefore it is

not offence by reason of such harm and the consent of the woman or of

her guardian to the causing of such miscarriage does not justify the act.

Human Trafficking:

Human trafficking is an offence independent of any harm whether

with or without consent in good faith or bad faith, or for the benefit of the

person or not, human trafficking is an offence. Whether the guardian has

consented to it or not.

Other more examples are covered under this section such as public

nuisance, offences against public safety, morals etc.

This section serves as a corrolary to sections 88, 87, 89. It says in

explicit terms that consent will not condone the act causing harm to the

person giving consent which will otherwise be an offence. Acts which are

offence independently of any harm which they may cause will not

covered by consent given under sections 87, 88, 89.

………………………………………………………………………………………

Section 92-95, Prepared by (Tanvir Jaman (Roll: 105)

Section 92: Act done in good faith for benefit of a person without consent.

Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person's consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit:

Provided-

Firstly.-That this exception shall not extend to the intentional causing of death, or the attempting to cause death;

Secondly.-That this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity;

Thirdly.-That this exception shall not extend to the voluntary causing of hurt, or to the attempting to cause hurt, for any purpose other than the preventing of death or hurt;

Fourthly.-That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend.

Illustrations

(a) Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires to be trepanned. A not intending Z's death but in good faith for Z's benefit, performs the trepan before Z recovers his power of judging for himself. A has committed no offence.

(b) Z is carried off by a tiger. A fires at the tiger knowing it to be likely that the shot may kill Z, but not intending to kill Z, and in good faith intending Z's benefit. A's ball gives Z a mortal wound. A has committed no offence.

(c) A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is no time to apply to the child's guardian. A performs the operation inspite of the entreaties of the child, intending, in good faith, the child's benefit. A has committed no offence.

(d) A is in a house which is on fire, with Z, a child. People below hold out a blanket. A drops the child from the housetop, knowing it to be likely that the fall may kill the child, but not intending to kill the child, and intending, in good faith, the child's benefit. Here even if the child is killed by the fall, A has committed no offence.

Explanation.-Mere pecuniary benefit is not benefit within the meaning of sections 88, 89 and 92.

When this section is applicable?

· When a person is incapable of giving consent, or

· It is impossible to take his consent,

· He has no guardian & legal representatives for that very moment

Then anyone can do anything for that person’s benefit in good faith.

Who is entitled to take benefit of this section?

· Any person having good faith can do anything for others benefit.

Who is not entitled to take benefit of this section?

· Intentionally causing death of another person, or

a) attempting to cause death of another person

· Aware of death of another person, for other purposes,

except-

a) preventing death

b) preventing grievous hurt

c) curing of any grievous disease

d) curing of infirmity

· voluntarily hurts or attempts to hurt another person for other purposes,

except, preventing death or hurt.

· Any abettor whom offence is not committed under this section.

Basic Principle: Act done in good faith for others benefit is not an offence.

Comment: This section is the basis of helping people in emergency situation who are not capable of giving consent.

Section: 93 Communication made in good faith

No communication made in good faith is an offence by reason of any harm to the person to whom it is made, if it is made for the benefit of that person.

Illustration

A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient's death.

When this section is applicable?

· When one person communicates to others in good faith

· Such communication is made for others’ benefit

Who is entitled to take benefit of this section?

· Any person having good faith can communicate others for their benefit.

Basic Principle: Communication with good faith for others’ benefit is not an offence.

Comment: It is humanity to help others by communication, thus one can take preventive action if necessary, but there must be good faith. This section helps us to live socially.

Section: 94 Act to which a person is compelled by threats

Except murder, and offences against the State punishable with death, nothing is an offence which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence: Provided the person doing the act did not of his own accord, or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he became subject to such constraint. Explanation 1.-A person who, of his own accord, or by reason of a threat of being beaten, joins a gang of dacoits, knowing their character, is not entitled to the benefit of this exception on the ground of his having been compelled by his associates to do anything that is an offence by law. Explanation 2.-A person seized by a gang of dacoits, and forced by threat of instant death, to do a thing which is an offence by law; for example, a smith compelled to take his tools and to force door of a house for the dacoits to enter and plunder it, is entitled to the benefit of this exception.

When this section is applicable?

· When a person is threatened by another to commit an offence

· Consequence of non-committing offence is instant death.

When this section is not applicable?

· When threatened person murders, &

· Commits offences against the state which are punishable with death.

Who is entitled to take benefit of this section?

· The person who is threatened to commit an offence otherwise he might die instantly.

Who is not entitled to take benefit of this section?

· Whose voluntary act is the cause of such threat.

· Who has reasonable apprehension of harm short than instant death.

Basic Principle: Act done by threat of instant death is not an offence.

Comment: This section does not permit one, to murder & to commit offences against the state which punishment is death penalty, even though he is threatened to instant death.

Section: 95 Act causing slight harm


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.

When this section is applicable?

· When slight harm has occurred & no reasonable man wouldn’t complain against such harm

Who is entitled to take benefit of this section?

· The person who is responsible to slight harm to another

Basic Principle: Slight harm is not an offence.

Comment: This section is the safeguard of unnecessary & illogical complains. If law permits to complain for silly matters it will be difficult to live peacefully in the society.

………………………………………………………………………………………

Section 96-98, Prepared by (Nahid Mostafa (Roll: 64)

RIGHT OF PRIVATE DEFENCE

The expressions of “Private Defence” that has been used in Bangladesh Penal Code hasn’t been defined therein. The state has the duty to protect its citizens and their property from harm. However, circumstances may arise when the aid of state machinery is not available and there is imminent danger to a person or his in such situations, a person is allowed to use force to ward-off the immediate threat to his or someone else’s person or property. This is the right of private defence. The people are endowed with this right so that they can defend themselves and their property and not hesitate due to fear of prosecution. Because Self-help is the first rule of criminal law. The right of private defence is absolutely necessary for the protection of one’s life, liberty and property. It is a right inherent in a man. But the kind and amount of force is minutely regulated by law. The use of force to protect one’s property and person is called the right of private defence.

History:

During colonialism, an enthusiastic Macaulay proposed a right of private defence in his draft code with the ambitious project of encouraging a ‘manly spirit’ among the ‘natives’. The ideal Indian would stand his ground in the face of danger and not hesitate to defend his own body or property or that of another. He would respond with defensive force to prevent certain crimes, even to the extent of causing death. As a general idea, the right of private defence permits individuals to use defensive force which otherwise be illegal, to fend off attacks threatening certain important interests. Like the defence of necessity, the right of private defence authorizes individuals to take the law into their own hands. Please don’t be hesitate, in the present time the right of private defense is not encouraged to take the law on hand, it’s just defensive mood of on safety and use only when necessary.

Nature & Scope:

The right of private defense is defense right. It is neither a right a right of aggression nor to of reprisal. There is no right of private defense where there is no apprehension of danger. Right of private defense available is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self-creation. The necessity must be a present necessity whether real or only apparent. Banwar sing vs state of MP(2008) 16 SCC But it remain a question of fact whether the right has been legitimately exercise. Thankachan v. State of kerala (2008) 17 SCC 241

Types:

According to Bangladesh Penal Code section 97 there are 2 types of private defence.

Firstly-To defend his own body, and the body of any other person, against any offence affecting the human body;

Secondly-To defend the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief for criminal trespass.

Limitations:

But such a right is subject to some restrictions and not available in all circumstances. It is only allowed when the danger to life or property is immediate and the accused is not the aggressor. The following limitations on the right of private defense of person or property: - 1. The right of private defence is not available against public servants acting in exercise of govt duty. 2. If there is sufficient time for recourse to public authorities, the right is not available, 3. The more harm than that is necessary should not be cause. 4. There must be a reasonable apprehension of death or grievous hurt to the person or damage to the property concern. Puran sing 1975 Cr LJ 2845(Kant).

Sections 96 to 106 of the penal code state the law relating to the right of private defence of person and property. The provisions contained in these sections give authority to a man to use necessary force against an assailant or wrong-doer for the purpose of protecting one’s own body and property as also another’s body and property when immediate aid from the state machinery is not readily available; and in so doing he is not answerable in law for his deeds.

Section: 96.

Nothing is an offence which is done in the exercise of the right of private defence.

Analysis:

Section 96 talks about things done in private defence – Nothing is an offence, which is done in the exercise of the right of private defence. Right of private defence cannot be said to be an offence in return. The right of self-defence under Section 96 is not, absolute but is clearly qualified by Section 99 which says that the right in no case extends to the inflicting of more harm than it is necessary for the purpose of defence. It is well settled that in a free fight, no right of private defence is available to either party and each individual is responsible for his own acts. The right of private defence will completely absolve a person from all guilt even when he causes the death of another person in the following situations, i.e If the deceased was the actual assailant, and If the offence committed by the deceased, which occasioned the cause of the exercise of the right of private defence of body and property falls within anyone of the six or four categories enumerated in Sections 100 and 103 of the penal code.

Section: 97 Every person has a right, subject to the restrictions contained in section 99, to defend- Firstly.-His own body, and the body of any other person against any offence affecting the human body; Secondly.-The property, whether moveable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

Analysis:

This allows a person to defend his or anybody else's body or property from being unlawfully harmed. Under English law, the right to defend the person and property against unlawful aggression was limited to the person himself or kindred relations or to those having community of interest e.g. parent and child, husband and wife, landlord and tenant, etc. However, this section allows this right to defend an unrelated person's body or property as well. Thus, it is apt to call it as right to private defence instead of right to self defence.

It is important to note that the right exists only against an act that is an offence. There is no right to defend against something that is not an offence. For example, a policeman has the right to handcuff a person on his belief that the person is a thief and so his act of handcuffing is not an offence and thus the person does not have any right under this section.

Similarly, an aggressor does not have this right. An aggressor himself is doing an offence and even if the person being aggressed upon gets the better of the aggressor in the exercise of his right to self defence, the aggressor cannot claim the right of self defence. As held by SC in Mannu vs State of UP AIR 1979, when the deceased was waylaid and attacked by the accused with dangerous weapons the question of self defence by the accused did not arise.

The right to private defence of the body exists against any offence towards human body, the right to private defence of the property exists only against an act that is either theft, robbery, mischief, or criminal trespass or is an attempt to do the same.

In Ram Rattan vs State of UP 1977, SC observed that a true owner has every right to dispossess or throw out a trespasser while the trespasses is in the act or process of trespassing and has not accomplished his possession, but this right is not available to the true owner if the trespasser has been successful in accomplishing the possession to the knowledge of the true owner. In such circumstances the law requires that the true owner should dispossess the trespasser by taking resource to the remedies available under the law.


Section 98 When an act, which would otherwise be a certain offence is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence. Illustrations (a) Z, under the influence of madness, attempts to kill A; Z is guilty of no offence. But A has the same right of private defence which he would have if Z were sane. (b) A enters by night a house which he is legally entitled to enter. Z, in good faith, taking A for a house-breaker, attacks A. Here Z, by attacking A under this misconception, commits no offence. But A has the same right of private defence against Z, which he would have if Z were not acting under that misconception. ……………………………………………………………………………………… Section 99-101, Prepared by (Bonosri Rani (Roll: 57)

Sec.99: Acts against which there is no right of private defence.

There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law.
     There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law.
     There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
     Extent to which the right may be exercised: The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
     Explanation 1: A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such unless he knows, or has reason to believe, that the person doing the act is such public servant.
     Explanation 2: A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.
     Section Analysis: If we carefully analyse this section we will be very clear that, this section speaks about some situations, in where the right of private defence is not available. According to this section there is no right of private defence on the following grounds;
    a) If the act done or attempted to be done by a public servants,
    b) If the act done or attempted to be done by the direction of a public servant,
    c) If the act done in good faith under colour of his office,
    d) If the act does not reasonably cause the apprehension of death or of grievous hurt,
    e) If the victim get reasonable time to contact with the public authorities.

        By analyzing the explanation 1 and 2 of this section we can easily say that, a person will get the right of private defence under this section against an act done or attempted to be done by a public servant or by the direction of a public servant if;
    a) He does not know that, the person doing the act is a public servant or is acting under the direction of a public servant,
    b) He has not sufficient reason to believe that, the person doing the act is a public servant or is acting under the direction of a public servant,
    c) The person who is acting under the authority doesn't state such authority,
    d) The person who is acting under a written authority doesn't produce such authority.
     Here it also has been said that, the right of private defence in no case will extend to more harm than it is necessary.
     Illustration: "A" a person has built a Paka Latrine situated in an open place which is very near to his house. Oneday he has set an electric wire to that latrine so that any person can't use it. After that a person use it and has died by electric shock. Here the act of "A" is more harmful than necessary.
Relating Case:
         Anand Ballub Prasad vs. State of Bihar, AIR 1953 Pat, 313
In this case it has been said that, if there is no jurisdiction to issue the warrant of arrest or to make arrest section 99 will not give any help to the public servant.

Section. 100: When the right of private defence of the body extends to causing death.

      The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailants, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely---
    Firstly: Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault ;
    Secondly: Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault ;
    Thirdly: An assault with the intention of committing rape;
    Fourthly: An assault with the intention of gratifying unnatural lust ;
    Fifthly: An assault with the intention of kidnapping or abducting ;
    Sixthly: An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.

      Section Analysis: This section gives the right of private defence, under the restrictions mentioned in sec 99, extends to the voluntary causing of death or any other harm to the assailant on the following grounds----
    a) If there arise an apprehension of death or of grievous hurt for that assault,
    b) If the assailant has intention to commit rape,
    c) If the assailant has intention to unnatural lust,
    d) If the assailant has intention to kidnap or to abduct,
    e) If the victim apprehends that, he will be unable to contact with any public authority.
      Illustrations: a)"A" a boy is following "B" another boy for the purpose of sexual harassment. B will get the right of private defence under this section as the act of A will be regarded as unnatural lust.
    b) "A" a person has been confined by "B" where no people live or generally go. A has murdered B by apprehending that, he will be unable to contact with any public authority for his release. A will get defence under this section.
      Related Case:
           Hasan Rony Vs. State 56 DLR 580, In this case it has been said that, the apprehension of grievous injury or hurt is enough for the exercise of the right of private defence under this section.
      Section. 101: When such right extends to causing any harm other than death.
      If the offence be not of any of the descriptions enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in section 99 to the voluntary causing to the assailant of any harm other than death.
      Section Analysis: This section gives the right of private defence which extends to any harm other than the voluntary causing of death.
    That means, if the offence doesn't fall under section 100 then the victim will not be allowed to cause the voluntary death to the assailant. But he will be allowed to cause any other harm under the restrictions mentioned in section 99.

………………………………………………………………………………………

Section 102-104, Prepared by (Jannat (Roll: 24)

Sec.102: Commencement and continuance of the right of private defence of the body: The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the may not have been committed; and it continues as long as such, apprehension of danger to the body continues.

Analysis: This section lays down provision regarding when the right if private defence of body commences and till what time it continues.

The right of private defence commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit an offence. It will subsist although the offence may not have committed and will continue as long as such apprehension of danger continues. The extent to which the right will be justified will depend not on the actual danger but on whether there was reasonable apprehension of such danger. There must be an attempt or threat of danger, but it must not be a mere idle threat or apprehension of a timid mind, reasonable ground for apprehension is pre requisite.

So, to get private defence under this section, following elements must be present…

1.Commencement of right.

2. Reasonable apprehension of danger to the body.

3. Attempt or threat to commit the offence.

4. Continuance of right till subsist of apprehension of danger.

Example: During a communal riot, if a person tries to hurt another with a knife, he has right to fire at him in self defence under this section.

Case reference: 1. Right of private defence of body commences when there is reasonable apprehension of danger and actual blows not necessary.[ Md.Qaiyum Uddin V State (1956) 8 DLR (WP)].

2. Where the testimony of a witness showed that the accused chased one of the deceased who fled away from scene of occurrence and killed him, they could not be said to have right of private defence as regards the killing of such deceased. [ AIR 1996 SC 215]

Sec.103: When the right of private defence of property extends to causing death:

The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong doer, if the offence, the commiting of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely…

Firstly.- Robbery;

Secondly.- House breaking by night;

Thirdly.- Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling or as a place for the custody of property;

Fourthly.- Theft, mischief or house trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.

Analysis: This section enumerates the cases in which it extends to the causing of death in defence of property.

Under this section, the right of private defence of property would extend to the causing of death; if theft, mischief or house trespass is done under the circumstances as may reasonably cause apprehension that death or grievous hurt would be the consequence, if the right of private defence is not exercised. Where there is no evidence to justify the conclusion that there was any reasonably cause for apprehension of death or grievous hurt and the deceased committed no offence of theft, mischief or house trespass it should be held that the accused had no right of private defence so as to cause death. A person in possession of a property is protected by section 103 under the restrictions mentioned in section 99 of penal code if he causes death in safe guarding his property where there is apprehension that the person whose death has been caused was about to commit one of the offences mentioned therin.

#Right does not extend to causing more harm than necessary—The right of private defence of property, being subject to the restrictions obtained in sec 99 in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

#As may reasonably cause apprehension—The right of private defence of property is extended to voluntary causing of death under fourth clause only when the offences mentioned are committed under such circumstances as may reasonably cause apprehension of death to the defender.

Example: If a person has genuine apprehension that he will be robbed in a deserted place, then he can go to the length of causing the attacker’s death in the exercise of right of private defence.

Case reference: The accused did not close his flour mill on the day of “Bharat Bandh” organized by some political parties. Some activities entered the mill being armed. They threatened and assaulted the operator of the mill. He fired at them resulting in death of two persons. The mill was set on fire. It was held that the act of the accused were within the reasonable limits of the right of private defence. The conviction was set aside.[ James Martin V State of Kerala,(2004) 2 SCC 203]

Sec.104: When such right extends to causing any harm other than death:

If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence , be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in last preceding section, that right does not extent to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrong doer of any harm other than death.

Analysis: Section 104 is analogous to section 101. This section and section 105 lay down the limitations on the right of private defence granted by sections 96 and 97. U Under this section the accused are entitled to cause any harm to the wrong doer other than death. It applies in cases where an injury inflicted on the offender in the course of his committing the offences of theft, mischief or criminal trespass by the person exercising the right of private defence. But this section does not apply to a case where death has been caused in exercise of the supposed right of private defence. The right of private defence of property does not justify the causing of death in all cases of theft, mischief or trespass in being committed.

# Causing any harm other than death: In this section, the expression “harm” can only mean physical injury. If the circumstances of the case show that the occasion to use force had not arisen at all the use of any force would be unjustified and the plea of right of private defence cannot avail the accused.

# Recourse to the protection of the public Authorities: The right of private defence of property under this section is subject to restrictions mentioned in s. 99. One of the restrictions is that there is no right of private defence in cases where there is time to have recourse to the protection of public Authorities.

Example: Removal of cattle from the lawful possession of person or owner amounts to theft, and the owner has right to private defence which may cause any harm not extending to death.

Case reference: 1. Where the deceased was committing criminal trespass on the land which he was ploughing. The act if shooting at him by the accused could not be said to have been done in exercise of private defence. [ PLD 1960 Lah 880 ]

2. In case of theft, mischief or criminal trespass not of the description enumerated in sec. 103, if death is caused, the right is exceeded. [AIR 1973 SC 665 ]

………………………………………………………………………………………

Section 105-106, Prepared by (Mollika (Roll: 91)

Section: 105 Commencement and continuance of the right of private defence of property ---

The right of private defence of property commences when a reasonable apprehension of danger to the property commences. The right of private defence of property against theft continues till the offender has affected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered. The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues. The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief. The right of private defence of property against house - breaking by night continues as long as the house-trespass which has been begun by such house - breaking continues.

Analysis: Under this section a person has the right of private defence of property against 4 types of offences. Right of defence against -1.theft, 2.robbery, 3. Criminal trespass or mischief, 4.house-breaking by night. The right commences as soon as reasonable apprehension of danger to the property arises from an attempt, or threat, to commit the offence, although the offence may not have been committed but not until there is that reasonable apprehension. If any person unreasonably or willingly exceeds the right of defence, he will be liable for that. Section: 102 deals with right of private defence of body. There is a difference between defence of body and defence of property -- the right of private defence of property commences where theft, robbery, criminal trespass or mischief are occurred by offender or attempt is taken to do that offence.

But, the right of private defence of body arises as soon as reasonable apprehension of danger to the body continues. Example : A thief enters by night to the house of Mr.Karim and steals some utensils of him. If Karim notices it and shoots the thief , he can not claim the right of private defence of property against theft. Because he can shout or can take attempt to beat with stick. there is no proper reason to shoot him. It exceeds the right of defence. so Korim will be liable for it. Case Law : In Allah Bancha vs. the state 16DLR (WP) 104 it is stated that the right of private defence of property does not exist when the offender has effected his retreat with private property. In Sultan Muhammad vs. Crown P.L.D. 1955 (Lahore) 575- The court held that if the accused exceeds deliberately the right of private defence of property he is responsible for the harm or injury caused.

Section: 106 Right of private defence against deadly assault when there is risk of harm to innocent person---

If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk. Illustration: A is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob. A commits no offence if by so firing he harms any of the children.

Analysis: under this section right of private defence arises where there is a reasonable cause to apprehend death of defender. In such a situation if defender takes any step which may cause risk of harm to innocent person, he is not liable for his action. But defender will be liable for his action if there is other option so that he can save that innocent person Case Law: Khundoker Saiful Islam vs. State 50 DLR(AD) 126-- it is held that the right of private defence of the body extends to the voluntary causing of death if the offence which occasions the exercise of the right is an assault which may reasonably cause the apprehension of either death or grievous hurt