General Exceptions in Indian Penal Code (IPC): Part II

28 February, 2024

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In India, the Indian Penal Code, 1860 is the principal law that governs the criminal justice system consisting of 23 Chapters and 511 Sections. It was enacted on October 06, 1860, and commenced on January 01, 1862. This law is a legal framework to govern criminal offences related to defamation, public health, offences affecting the property, and the human body as well as offences against the state. However, it is not always important to punish an individual for a crime; therefore, the IPC defines General Exceptions. Two fundamental elements of crime are required to meet to charge an accused with a crime that is Mens Rea and Actus Rea. There are two categories of exceptions, excusable exceptions and justifiable exceptions. In this article, we will discuss justifiable exceptions, one of the two categories of general exceptions defined under the Indian Penal Code, 1860, and Sections related to them under the IPC.

Justifiable Exceptions

These are exceptions to crimes that would have been wrongful under normal circumstances but were deemed acceptable and tolerable to everyone. These exceptions are judicial act, necessity, consent, communication, duress, trifles, and private defence, which are discussed as follows:

Judicial Act

Section 77 of the IPC states that an act performed by a judge when acting judicially in the exercise of any power given to him by law is not an offence and the judge is not liable for the same.
Section 78 deals with ‘Act done pursuant to the judgment or order of Court’. It illustrates that “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.”

Necessity

Section 81 IPC states that “Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it 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.” It means an act performed by a person knowingly that the same is likely to cause harm but is done without any criminal intent and mainly to prevent another harm then the person is not held accountable for the crime.

Consent

Section 87 of the Indian Penal Code states that “Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen (18) years of age, who has given consent, whether express or implied, to suffer that harm; or 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.”
Section 88 deals with ‘Act not intended to cause death, done by consent in good faith for person's benefit’ and states that 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.
Section 89 IPC states that “Nothing which is done in good faith for the benefit of a person under twelve years of age, or of unsound mind, by or by consent, either express or implied, of the guardian or other person having lawful charge of that person, 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 that person.”
Section 90 of the IPC illustrates what is not consent if consent is given,
- under fear of injury,
- under misconception of facts,
- by insane people, and
- by a child who is under 12 years of age.
Section 91 deals with the ‘Exclusion of acts which are offences independently of harm cause’. It states that “The exceptions in sections 87, 88 and 89 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 the consent, or on whose behalf the consent is given.”
Section 92 of the IPC, 1860 states that an act done in good faith for the benefit of a person without consent is not an offence even though harm is caused to that person during the process of commission of the act.

Communication

Section 93 of the IPC illustrates that no communication is an offence if it is made in good faith and for the benefit of the person to whom it is made even though the person making the communication knows that the same can harm the other person. It states “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.” For instance, a doctor tells the mother that her daughter has a brain tumor and is in serious condition. After hearing this, the mother died of shock; therefore, the doctor will not be held accountable for communicating the news because he did that in good faith.

Duress

Section 94 states that “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. For instance, an individual, who was caught by dacoits and was in fear of instant death, was compelled and forced to take a gun and open the door of the house for the entrance of dacoits and harm the family will not be held liable for the offence.

Trifles

Section 95 deals with acts that cause minor or slight harm and provides immunity to persons who commit trivial offences. It states that “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.”

Private Defence

A person can claim an immunity of private defence under the Indian Penal Code to protect his/her life and property from unlawful hostility of others. Section 96 to Section 106 of the IPC, 1860 illustrates provisions related to private defence.

Section 96 states that if an individual performs an act in the name of private defence or self-defence, it is not addressed as an offence, and the person who commits the offence will not be held liable for the same.
Section 97 IPC states that every individual has a ‘Right of private defence of the body and of property’. A person can defend his own body and the body of any other person against any offence that affects the human body. Also, Section 97 illustrates that any person has a right to defend his property (both movable and immovable) or property of any other person against any offensive act such as robbery, theft, mischief, or trespass.
Section 98 states that the same right of private defence, as of a person with a sound mind, against any act is given to a person who is of an unsound mind, etc.
Section 99 of the Indian Penal Code deals with certain acts against which there is no right of private defence such as an act performed by a public servant or by the direction of a public servant acting in good faith under the color of office.
Section 100 deals with ‘When the right of private defence of the body extends to causing death’. It lays down six serious acts of aggression giving authority to the defender to cause the assailant’s death. These acts are:
- An assault causing reasonable apprehension of death,
- An assault causing reasonable apprehension of grievous hurt,
- An assault to commit rape,
- An assault to gratify unnatural lust,
- An assault with the intention of kidnapping or abducting,
- An assault to wrongfully confine a person, under circumstances that may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.
Section 101 states that if an offence other than those listed in Section 100 IPC is not committed and harm is caused then the right of private defence cannot be availed except restrictions under Section 99 IPC.
Section 102 deals with ‘Commencement and continuance of the right of private defence of the body’ and states that “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 offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.”
Section 103 of the IPC illustrates that the right of private defence of property extends to causing death or any other harm to the wrong-doer for “robbery, house-breaking by night, 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; 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.”
Section 104 states that if an 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 Section 103 IPC, that right does not extend 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.
Section 105 deals with the ‘Commencement and continuance of the right of private defence of property’. It states that the right of private defence of property:
- commences when a reasonable apprehension of danger to the property commences,
- against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered,
- 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 instant hurt or instant personal restraint continues,
- against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief, and
- against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues.
Section 106 states that “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.”

These are the general exceptions listed under the Indian Penal Code, 1860 that help the accused to escape liability from the committed offence. According to Section 6 IPC, every definition of an offence, every penal provision, and every illustration of every such definition or penal provision should be understood subject to General Exceptions mentioned under Chapter IV of the IPC. As per Section 105 of the Indian Evidence Act of 1872, “When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.” It means the burden of proof lies on the accused to prove the general exceptions in the Indian Penal Code.