Introduction
To prove that an act is considered as a crime, the Latin maxim ‘actus non facit reum nisi mens sit rea’ is followed. ‘Actus reus’ refers to a guilty act committed by an individual. Professor Kenny was one of the first people to use the term actus reus. According to him, “Actus reus is such result of human conduct as the law seeks to prevent.” It is the physical result of human conduct. The act done or omitted must be an act forbidden or commanded by some law. Mens rea refers to the guilty state of mind while committing an act. According to Ashworth, “The essence of the principle of mens rea is that criminal liability should be imposed only on persons who are sufficiently aware of what they are doing, and of the consequences it may have, that they can fairly be said to have chosen the behaviour and its consequences.” In United States v. Currans[1], the Chief Justice observed: “The Concept of Mens Rea, guilty mind, is based on the assumption that a person has the capacity to control his behaviour and to choose between alternative courses of conduct. It is only through this assumption that society has found it possible to impose duties and create liabilities designed to safeguard persons and property”[2] Therefore, the Latin maxim ‘actus non facit reum nisi mens sit rea’ simply means that an act does not render a man guilty of a crime unless his mind is equally guilty. This maxim is considered to be a foundational concept in criminal law.
Also Read – Rising Police Atrocities and Remedies
A defence is available to the accused primarily on the basis of two reasons[3]. These include:
- The act committed is an exception to the legal norm that classifies the act as an offense due to the presence of ‘extraordinary circumstances’. Such exceptions or defences fall under the ambit of justifications as the act committed is considered to be justified under that particular situation.
- The act is an exception to the legal norm that classifies the act as an offense not due to the presence of ‘extraordinary circumstances’. Instead, it is a claim about the fairness of holding the specific individual in this situation accountable for the wrongdoing or act. in contention.
In Harbhajan Singh v. State of Punjab[4], the court held that “under S. 105[5], if an accused person claims the benefit of exceptions, the burden of proving his plea that his case falls under the exceptions lies on the accused. Where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt… In such cases, law treats the onus as discharged if the accused succeeds in proving a preponderance of probabilities. The burden of proof to show the existence of a mistake lies on the defence, and it has been held dial the defence must discharge such burden on a balance of probabilities.”
Differences between Justifications and Excuses
A clear justification between justifications and excuses is an essential not only for a better understanding of criminal law but also for various other reasons. Some of these reasons include[6]:
- A clear distinction between justifications and excuses is important to ascertain the rights of the third parties related to the crime. The rights vary depending on whether the act comes under the ambit of a justification or an excuse. Justified conduct or a justification would imply a “no right” of resistance and a right to assist others in carrying out the justified conduct.[7] On the other hand, merely excused behaviour may legitimately be resisted by the victim or other parties. The aiding of wrongful conduct that has been excused is similarly considered wrongful and illegal.
- Justifications and excuses also give out very different moral messages.[8] Justifications allow the act to not be considered as an offence merely due to the presence of ‘extraordinary circumstances’ whereas excuses do not assert the tightness of the conduct in question.[9] The moral message of excuses used as a defences is that society should not penalise people for actions that cannot be reasonably attributed to them. The main function of the criminal law is therefore undermined when a clear distinction between excuses and justification isn’t drawn.
- Another importance of a clear distinction between defences used as a justification and excuse is in demarcating the rights of defendants in criminal law. It assists us in rationally determining an appropriate method of establishing the standard of proof and placing the burden of proof on exculpatory claims.[10]
To summarise, a failure in clearly understanding the difference between a justification and an excuse may lead to bad understanding and application to substantive law (laws that governs how members of a society are to behave) and procedural law (procedures for making, administering, and enforcing substantive law).
Justifications
The principle of justifications is based on the utilitarian view which involves ‘a balancing of interests and a privileging of conduct that is in furtherance of the greater interest’.[11] The question of whether taking of an innocent life is justified if it helped to save a greater number of lives arises due to this theory. However this question is tackled by Criminal statutes deal with these conflicting viewpoints by qualifying the balancing of interests with an additional condition, namely, one requiring there to be an “appropriate means to the end”[12]
Excuses
The principle of excuses mainly follows two approaches. The first approach states that the behaviour of the accused is temporarily distorted as compared to what he would have behaved normally. The excusing circumstances must be such as to distort the actor’s capacity for choice in a limited situation.[13] The second approach states that the act should be punished only when the act committed is committed voluntarily. This approach is thus linked to the concept of voluntariness, understood in a moral or normative (and not physical) sense.[14]
The following table shows the defences available under the Indian Penal Code,1860 , the sections under which the defences are mentioned and whether the defence is under the ambit of a justification or an excuse.
Defence | Section of IPC | Justification or Excuse? |
Infancy | 82 and 83 | Excuse |
Insanity | 84 | Excuse |
Mistake | 76 and 79 | Excuse |
Necessity | 81 | Justification |
Private defence | 96 to 106 | Justification |
Trifles | 95 | Justification |
Infancy
Medical science has proved with certain data that though 95% of the brain develops by the age of five, those cells in your brain that help you in taking rational decisions keep developing well beyond the age of fifteen to eighteen.[15] So, immaturity of mind is also recognized as a condition that incapacitates the mental faculties thereby furnishing a ground for raising a defence known as defence of infancy. This defence is based on principle ‘doli incapax’ which simply meaning incapable of forming an evil intention on account of immature age.
Section 82[16] of the Indian Penal Code, 1860 states that “Nothing is an offence which is done by a child under seven years of age.” Section 83[17] of the Indian Penal Code states that “Nothing is an offence which is done by a child above seven years of 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.” According to Section 83[18], which is more specifically defined, children who are older than seven but younger than twelve may be held criminally liable if they have attained a level of understanding maturity that allows them to understand the nature and consequences of their alleged actions—not in general, but specifically on the occasion when they were allegedly committed.
History
‘Actus Reus Non Facit Reum Nisi Mens Sit Rea’ is a legal test that generally means that someone who acted in a way that was free from mental responsibility was not criminally accountable. Infancy is a legal excuse for not being held liable for a crime because of the age of the offender. It asserts that because the perpetrator is too young to commit a crime, he is not subject to criminal prosecution. The idea that juvenile offenders are too immature to have criminal intent is the foundation of the defence of infancy. As per Blackstone, infants should be exempted from criminal liability because in his words: “Infancy is a defect of understanding and infants under the age of discretion ought not to be punished by any criminal prosecution whatsoever.[19]” The first case under Indian jurisdiction recorded to use infancy was Gopinath Ghosh v. State of West Bengal[20]. This case stated that the constitutional basis the protection of juveniles springs from Articles 15(3) and 39(e) and (f) of the Constitution of India.
Under Section 83[21] of the Indian Penal Code 1860, the child’s mental comprehension is a crucial criterion. In India, defence of infancy is still in its preliminary stages. Even though the courts have taken a progressive position. There have been instances of severe crimes that have compelled the judiciary and even the legislature to take stringent action, such as the juvenile amendment in 2015[22].
Under the English Law, the presumption of ‘doli incapax’ operated as a defence from criminal liability for children falling within the age group of ten to fourteen years until it suffered abolition vide Section 34 of Crime and Disorder Act, 1998.[23]
Landmark Cases
Emperor v Wali Mohammad [24]: The trial court found two kids guilty of throwing stones at a moving train, which is punished under Section 127 of the Railways Act of 1890. One of the kids was eight years old, while the other was five. Following an appeal, the Sind High Court ruled that the accused, who is eight years old, is entitled to a defence under Section 83 of the IPC and the accused, who is five years old, is entitled to a defence under Section 82 of the IPC because it was determined that he had not yet attained the necessary level of understanding maturity to understand the risks involved or the nature and consequences of his act of throwing stones at a moving train. Prior to the creation of the juvenile justice system, minors above the age of twelve were not protected by any kind of immunity, were subject to the same penalties as adults in the event of a conviction, and were required to stand trial.
King Emperor v Baba Sein[25]: A child under the age of seven was charged with being the owner of the bus and was held responsible for operating it without the necessary permits. Section 82 was cited in an appeal against the conviction, and it was decided that a child under the age of seven cannot be held responsible under any criminal law.
Abdul Sattar v King Emperor[26]: Two boys, over the age of seven but under the age of twelve, broke into two stores and stole things. They were found guilty at trial, and the High Court upheld their conviction even on appeal because it believed that their actions alone suggested that they had attained the necessary maturity to grasp the nature and repercussions of their actions, making them guilty as such.
Shilpa Mittal v State NCT of Delhi[27]: The Supreme Court made it clear that any offences with sentences of at least seven years in prison but no less would be considered severe offences. Even after the Juvenile Justice Act of 1986 was passed, it remained optional in the sense that the State should decide whether or not to use juvenile courts as an institution that deals with children. The State should also decide whether to have a separate system for handling children who have allegedly committed crimes. However, the Juvenile Justice Act of 2000 mandated that all children up to the age of 18 must be handled by the Juvenile Justice board in accordance with the Juvenile Justice Act of 2000 and no other legislation. The Act of 2000 stipulated that there would be no arrest, no trial, no sentencing, and no penalty. With the exception of the modifications made to the Act of 2015 regarding juveniles between the ages of sixteen and eighteen who have committed heinous crimes, the framework remained the same.
Insanity
Contemporary philosophers, such as Gilbert Ryle, G.E.M. Anscombe, and Stuart Hampshire, have shown that “intention” is not too simple a notion to be adequately expressed merely in terms of foresight and desire but is a very complex one which stands for very difficult ideas in different contexts. The attempt to define blameworthiness in terms of foresight leads to superficiality and is inconsistent with psychological reality.[28] This is the reason why ‘mens rea’ or a guilty intention has to be established to prove that a crime has been committed. ‘The defence of insanity is based on the assumption that at the time of the crime, the defendant was suffering from severe mental illness and therefore, was incapable of appreciating the nature of the crime and differentiating right from wrong behaviour, hence making them not legally accountable for crime.’[29] According to section 84[30] of the Indian Penal Code, 1860 “Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.”
History
The first known trial of insanity came up in England. It was that of Edward Arnold in 1724 in the case of R. v. Edward Arnold[31] . The accused had shot a member of the aristocracy and later pleaded that he was not aware about what he was doing.[32] In this case, Tracy, J. observed that ‘If he was under the visitation of God and could not distinguish between good and evil, and did not know what he did, though he committed the greatest offence, yet he could not be guilty of any offence against any law whatsoever.’
The most important test that was derived from the common law jurisdictions is the ‘right and wrong’ test in the R v Mc’Naughten.[33] The judgement given and the principles laid down in the case are referred to as Mc’Naughten’s rule. According to the Mc’Naughten rule, a criminal defendant is not guilty by reason of insanity if they were so insane at the time of committing the crime that they were either unaware of the nature and quality of their actions or, if they were aware of the nature and quality of their actions, they were so insane that they were oblivious to the fact that the actions committed by them were wrong. The principles were laid down in the judgement of the case. Their majority opinion was given by Tindal C.J. by stating the following principles :
- ‘If the person knew what he was doing or was only under a partial delusion, then he is punishable.’
- ‘There is an assumption that every man is prudent or sane and knows what he is doing and is responsible for the same.’
- ‘To establish a defence based on insanity, it must be ascertained, at the time of perpetrating the act, the accused was in such a state of mind as was unable to know the nature of the act committed by him.’
- ‘A person who has sufficient medical knowledge, or is a medical man and is familiar with the disease of insanity cannot be asked to give his opinion because it is for the jury to determine, and decide upon the questions.’
Section 84 of the penal code is largely based on the Mc’Naughten’s rule. ‘Section 84 IPC, clearly embodies a fundamental maxim of criminal jurisprudence that is, ‘Actus nonfacit reum nisi mens sit rea’ which means an act does not constitute guilt unless done with a guilty intention and ‘Furiosi nulla voluntas est’ which means a person with mental illness has no free will.
Also Read – Why Law students should publish Legal Article
Landmark cases
Shrikant Anandrao Bhosale v. State of Maharashtra[34]: The Supreme Court, in determining the offense under Section 84 of the IPC, held that ‘it is the totality of the circumstances seen in the light of the recorded evidence that would prove that the offense was committed.’ It was added: ‘The unsoundness of the mind before and after the incident is a relevant fact.’ The supreme court further stated that, ‘When a plea of legal insanity is set up, the court has to consider whether at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of section 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime.’
Rattan Lal v. State of M.P[35]: The court clearly established that ‘the crucial moment at which the unsoundness of mind should be proven is when the crime is actually committed. Whether the accused was in a state of mind that would have qualified them for the protections of Section 84 can only be ascertained from the events that occurred before, during, and after the crime. In other words, behaviour that occurred before, during, or after the event—and not behaviour that occurred later—may be important in determining the accused’s mental state at the time the crime was committed.’
Chajju v. Emperor[36]: The medical evidence that was given was very explicitly in favour of the accused. In spite of that, the main question for the court still remained that was the accused incapable of knowing that what he was doing was wrong or contrary to the provisions of the law due to the reason of unsoundness of mind as specified in Section 84 of the Indian Penal Code, 1860.
Mistake
The term mistake literally means commission or omission of an act ignorantly or unintentionally causing injury. It is an unconscious ignorance or forgetfulness of a fact, past or present, material to the contract or a belief. Mistake is one of the defences available to the accused to get exemption from criminal liability. A court has to determine his guilt on the basis of the believed facts and not on the real facts. Mistake negates the existence of a particular intent or foresight which penal law requires to make a person liable rather than ‘actus reus’.[37] In order to exclude the criminal from the liability on the ground of mistake three conditions are to be fulfilled,
• The state of things believed to exist would, if true,
• have justified the act done; the mistake must be reasonable; and
• the mistake must relate to fact and not to law
Section 76[38] states that “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.” Section 79[39] states that “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.”
History
If the sole purpose of criminal law were to impose sanctions to stop illegal acts from happening, it would serve to punish the conduct itself, whether it was committed deliberately, carelessly, or purposefully. However, the law seeks to hold those accountable for the crime accountable, and accountability seems to imply a certain mental state—in this case, a guilty mind. In criminal law, the maxim ‘actus non facit reum nisi mensit rea’ has taken on a commanding presence. This dictum has led to the acceptance of the use of mistake as an explanation. The defence of mistake is founded on the idea that someone who is wrong or unaware of a truth cannot have the necessary intent to commit a crime and is, thus, not legally liable for their actions. This has been incorporated in the common law principle ‘ignorantia facit doth excusat, ignorantia juris non excusat’ (ignorance of fact excuses, ignorance of law does not excuse)[40] The long application of this principle is apparent from the seventeenth century case of R. v. Levett,[41] where an accused was acquitted on this ground. After this, mere has been considerable development in the law relating to mistake, in spite of which incoherence continues regarding the exact scope of this defence.
Mistake must be reasonable and acceptable and that it is not a mistake of law but a mistake of fact. The essential elements of section 76 can be assessed as follows[42]:
- An act or mistake done by a person who is compelled by law in doing that.
- Such a person believes that he is bound by law to do such an act.
- Mistake must be related to fact and not the law.
- The act committed must be in good faith.
Section 79[43] of the Indian Penal Code 1860 provides a defence to a person who commits an offence and, because of a mistake of fact and not a mistake of law, believes himself to be justified by the law in doing it. Section 79[44] deals with cases where a person under the mistake considers himself to be simply justified or excused by the law to act in a particular way. The essential elements or ingredients of section 79 are as follows[45]:
- An act committed by a person under a mistake of fact.
- Such a mistake must be a mistake of fact and not of law.
- The mistake must be made with bona fide belief or in good faith.
- The person doing the act is either justified by law or he believes to be justified by the law in doing such act.
A plain reading of the wordings in section 76 & 79 “who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes” reveals that the protection of the sections applies only to mistake of fact and not to mistake of law. Sections 76 and 79 require dial any mistake of fact be made with due care section 52[46] defines an act done in good faith as done with “due care and attention”. The phrase “due care and attention” implies genuine effort to reach the truth and not the ready acceptance of an ill-natured belief.[47] In short, section 76 contains legal compulsion whereas, section 79 contains legal justification.
Landmark cases
Raj Kapoor v. Laxman[48]: It was held that “if the act was done by one who by reason of a mistake of fact in good faith believes himself to be justified by law in doing it, then the exception operates, and the bona fide belief, although mistaken, eliminates the culpability. If the offender can irrefutably establish that he entertained a mistake of fact and in good faith believed that he was justified by law in committing the act, then the weapon of S. 79 demolishes the prosecution.”
Keso Sahu v. Saligram[49]: The court held that the accused showed that he in good faith and believing that the offence of smuggling rice was going on in the plaintiff’s house and thus he brings the cart and Cartman to the police station. The said suspicion was proved to be wrong. The accused can take the defence of mistake of fact as he is doing the act in good faith and believing it to be justified by law.
Chirangi v. State[50]: The accused had believed his son to be a tiger and hence the accused had assailed his son with a knife which resulted in his death. During the course of the trial, the testimony of Dr. Dubey showed that it was possible for Chirangi, who was suffering from bilateral cataract prior to the relevant date, to have because of this disability mistaken ‘bona fide’ his son for a tiger. Dr. Dube also opined that the abscess in his leg would have produced a temperature which might well have been responsible after the fall for a temporary delirium which might have created a secondary delusion to magnify the image created by the defect in vision. Chirangi in all probability, suffered from cardio-vascular disease which would have resulted in temporary confusion; and the injury to his eyebrow could have caused a state of concussion during which he might have inflicted the injuries on his son. The evidence showed clearly enough that Chirangi’s fall combined with his existing physical ailments could have produced a state of mind in which he in good faith thought that the object of his attack was a tiger and was not his son. Hence, the court held that Chirangi is not liable as per section 79 of the IPC as it was a mistake of fact, justified by law, that immunized him from liability.
Necessity
According to Black’s law dictionary, necessity can be defined as “Controlling force; irresistible compulsion; a power or impulse so great that it admits no choice of conduct.” When a defendant, in order to prevent a greater harm from taking place, commits a crime or a criminal act during an emergency situation like such, the defence of necessity is applied[51]. The person who is accused of committing a crime should have acted in good faith to stop something worse from happening, without intending to hurt anyone, and just knowing that the consequences of his conduct are likely and that he will not be held accountable for them. In order to avail the defence of necessity, an act causing lesser harm should be done to prevent an act causing greater harm from occurring. The defence of necessity cannot be availed if an act causing greater harm is done with the intention of preventing an act causing lesser harm.
According to section 81[52] of the Indian Penal Code, 1860 “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.” The test really is like this: there must be a situation in which the accused is confronted with a grave danger and he has no choice but to commit the lesser harm, may be even to an innocent person, in order to avoid the greater harm. Here the choice is between two evils and the accused rightly chooses the lesser one.[53]
History
The most fundamental legal criteria that are taken into account whenever a court of law must make a judgement are the principles of natural justice. However, there is an exception to one of the natural justice principles—the rule against bias—and that is the notion of necessity. The mediaeval jurist Henry de Bracton’s works are where the notion of necessity first appeared. He stated that “that which is otherwise not lawful is made lawful by necessity”. The doctrine of the ‘jus necessitatis’ recognises that the law has to be broken to achieve a greater good. According to the doctrine, the violation of a law may be excused by necessity[54]. This doctrine emanates from two maxims: ‘necessitas non habet’ meaning necessity knows no law and ‘necessitas vincit legume necessity’[55]. One of the first common law cases to use necessity as a defence was Regina v. Dudley and Stephens[56]. In this case, Dudley and Stephens, the defendants, murdered a fellow young seaman (Parker) in order to save their own lives from starvation. On these conditions, the justification of necessity was inadmissible as an excuse for murder. It is impossible to defend the death of one person on the grounds that it is required to protect the life of another. Another case which used the defense of necessity and is quite controversial is Federation of Pakistan v. Maulvi Tamizuddin Khan[57]. The then Chief Justice of Pakistan referred to Henry de Bracton’s maxim and implemented the doctrine of necessity. This case paved the way for the use of the doctrine of necessity by several commonwealth nations. The doctrine of necessity is an exception to the principle of ‘nemo judex in causa sua’. ‘Nemo judex in causa sua’ is a principle of natural justice which basically means that no one can be a judge in a case where he has interest. With the option of availing the defence of necessity, it gives the accused the right to judge, by the standards of what he thinks is reasonable, what is a an act that would greater harm as opposed to act that wouldn’t cause harm to a great extent. If this principle was strictly followed, both an act which causes greater or lesser harm, would be punished in the same way. The ingredients of Section 81[58], necessity, are:
- the act must have been done under good faith;
- there must not be mens rea (absence of mens rea).
Landmark cases
Gopal Naidu v. Emperor[59]:When police officers restrained and disarmed an inebriated guy who was holding a pistol in his hand, they committed the crime of unlawful imprisonment. They can assert the defence of necessity even if the offence of public nuisance was deemed to be non-cognizable in the absence of a warrant. The Madras High Court ruled that the accused’s own property or another person’s property might both be protected in this instance.
Tata Cellular v. the Union of India[60]:All mobile carriers were invited by the Indian government to set up their networks in Chennai, Bombay, Calcutta, and Delhi. The tender was to be chosen by the Director-General. At the conclusion of the review process, the tender of the Director-General’s son was chosen. Since there could have been no selection of a tender or fair evaluation without the Director-General of Communication, the Supreme Court declined to sanction the infringement of ‘Nemo judex in causa sua’ in this instance. The ruling could not be overturned because there was no substitute available. In this case the doctrine of necessity was applied liberally by the Supreme Court.
Election Commission of India v. Dr. Subramaniam Swamy[61]:It was decided that the doctrine of necessity would not be relevant and that the Chief Election Commission’s participation was not required if there was a chance of prejudice. However, a formal line of action was established for them, allowing them to convene a meeting and then leave, enabling the other commission members to make the choice. The doctrine of necessity will only be used when there is a contradiction between them. The theory of necessity in this instance was transformed into the doctrine of absolute necessity, establishing that the former can only be used in situations of absolute need.
Private defence
Section 96[62] of the Indian Penal Code (IPC) describes ‘things done in private defence.’ Section 97[63] of the IPC describes ‘right of private defence of the body and of property.’ Section 98[64] of the IPC describes ‘right of private defence against the act of a person of unsound mind, etc.’ Section 99[65] of the IPC describes ‘acts against which there is no right of private defence.’ Section 100[66] of the IPC describes ‘when the right of private defence of the body extends to causing death.’ Section 101[67] of the IPC describes ‘when such right extends to causing any harm other than death.’ Section 102[68] of the IPC describes ‘commencement and continuance of the right of private defence of the body.’ Section 103[69] of the IPC describes ‘when the right of private defence of property extends to causing death.’ Section 104[70] of the IPC describes ‘when such right extends to causing any harm other than death.’ Section 105[71] of the IPC describes ‘commencement and continuance of the right of private defence of property.’ Section 106[72] of the IPC describes ‘right of private defence against deadly assault when there is risk of harm to innocent person.’ 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.[73] The right of private defence is an inalienable human right. But the law is quite specific about the sort and amount of force.
History
In his draft code from 150 years ago, an enthusiastic Macaulay offered a right to individual defence with the lofty goal of fostering a “manly spirit” among the “natives” at the time of colonialism. 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.[74] 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[75].
Homicide, according to Roman law, was defined as the taking of another person’s life. Murder and manslaughter are the two levels of criminal homicide, whereas justified and excusable homicide are the two levels of homicide that do not subject a person to penalty. The act of self-defence was classified as justified murder. In self-defence violence was lawful: ‘Vim enim vi defendere omnes leges emniaque jure permittunt’ (A man incurs no liability, if he kills another’s slave who attacks him.)[76].
The standing of the right to self-defence in English law changed over time in a number of different ways. In the ancient period, there was absolute liability even for homicide committed ‘se defendendo.’[77] Homicide done in self-defence is viewed as permissible in the modern day since it is assumed that such an act is not motivated by malice, unlike the mediaeval age when the doctrine of pardon evolved and it became excusable.
As the common law system does not provide a statutory definition of self-defence, it is often the opinions of legal authorities that are relied upon.[78] The two elements of self-defence according to Black’s Law dictionary are:
- Accused does not provoke difficulty, and
- There must be impending peril without convenient or reasonable mode of escape.
American law holds similar views to that of the English law. Great importance is given to the following concepts under criminal law:
- Requirement of reasonableness (a reasonable and honest belief is essential),
- Only that amount of force should be used which reasonably appears necessary to prevent the threatened harm.[79]
Thus, it can be seen that in the various legal systems of the world, there are certain common established principles pertaining to self-defence.[80]
Landmark cases
Amjad Khan v. State[81]: A riot between Sindhi refugees and the local Muslims broke out. The riot started where majority of the shopkeepers were Sindhi. Muslim owned shops were targeted and many Muslims died in the riot. The appellant and his family took shelter in a building, but a mob gathered outside and banged the door with sticks. He fired two shots that killed two Sindhis. He was acquitted by the Supreme Court as he was allowed to avail the defence of private defence.
Mohinder Pal Jolly v. State of Punjab[82]: It was determined that this clause did not protect the factory owner when employees of the factory launched brickbats from outside the gates and the factory owner shot and killed a worker with his handgun because there was no reasonable expectation of death or great bodily harm.
Darshan Singh v. State of Punjab[83]: While deciding on this case, the Supreme Court laid down the guidelines for the right of private defence for citizens. The Court declared their legal position under the following 10 guidelines[84]:
- Self-preservation is a basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.
- The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.
- A mere reasonable apprehension is enough to put the right of self-defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.
- The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.
- It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.
- In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.
- It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.
- The accused need not prove the existence of the right of private defence beyond reasonable doubt.
- The Indian Penal Code confers the right of private defence only when the unlawful or wrongful act is an offence.
- A person who is in imminent and reasonable danger of losing his life or limb may, in exercise of self-defence, inflict any harm (even extending to death) on his assailant either when the assault is attempted or directly threatened.
Trifles
According to Webster’s Dictionary, a trifle is “something of very little value or importance.”[85] An act which can be classified as an offense as per the definitions provided in the Indian Penal Code, 1860 will not be classified as an offense if the act is of trivial and petty nature such that a person of ordinary prudence and sense would not complain about the harm caused by the act.
According to Section 95[86] of the Indian Penal Code, 1860 ‘Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm.’ This section is based on the maxim ‘de minimis non-curat lex’ which basically means that the law is not concerned with small or insignificant instances. Thus, a trifle is something of minor consequence which could easily be overlooked. Some courts and commentators have turned the translation of ‘de minimis non curat lex’ into more of an art form, thus providing a different perspective on the standard transliteration.[87]
Laying down the principle that law does not take account of trifles in Section 95 of the Indian Penal Code 1860 the authors of the Code observe in the statement of Objects and Reasons[88]:
“This section is intended to provide for those cases which, though from the imperfection of language they fall within the letter of the Penal law, are yet not within its spirit, and are all over the world considered by the public, and for the most part dealt with by the tribunals, as innocent. As our definitions are framed, it is theft to dip a pen into another man’s ink, mischief to crumble one of his wafers, an assault to cover him with a cloud of dust by riding past him, hurt to incommodate him by pressing against him in getting into a carriage. There are innumerable acts without performing which men cannot live together in society, acts which all men constantly do and suffer in turn, ……………. That these acts ought not to be treated as crimes is evident.”
Also Read – How to secure an internship at a reputed law firm
History
The term ‘trifle’ or ‘de minimis’ has legal meanings that date back to mediaeval England and the era of kings and chancellors. In fact, chancellors are usually given credit for helping to formulate the ‘de minimis’ criterion in its current form.
The function of the ‘de minimis’ doctrine is to place “outside the scope of legal relief the sorts of intangible injuries, normally small and invariably difficult to measure, that must be accepted as the price of living in society.”[89] The maxim signifies “that mere trifles and technicalities must yield to practical common sense and substantial justice. [90] Applying the maxim ‘de minimis non curat lex’ is only a judicial use of power.
The doctrine of trifles has been applied in cases containing the law of contracts, tort law , civil law, and criminal law. There are no fixed facts and circumstances wherein the defence of trifles can be taken. It depends on a case to case basis. The main reason that section 95[91] is used is to reduce the burden of the judiciary by not wasting the court’s valuable time on inconsequential, petty and trivial acts.
In certain cases involving land/property disputes, constitutional rights, class actions, crimes, government regulations, fiduciary relationships, and debts, section 95 is not always applied.[92]
Landmark cases
State v. Amritlal Amanlal[93]: The accused failed to display his B class licence prominently in the shop as required by Clause 27 of the Order. He was charged for the same. The Sessions judge of Jabalpur set aside the conviction by applying section 95 and stating that ‘breach was so trivial that no notice should have been taken of it.’ This decision was overturned and it was held that section 95 can be applied only for acts as mentioned under the Indian Penal Code. It was stated that “This section has no application unless the act in question amounts to an offence under the Indian Penal Code.”
Mrs. Rupan Deol Bajaj & Anr vs Kanwar Pal Singh Gill[94]: A man had outraged the modesty of a lady IAS officer by making indecent remarks, gestures and physical contact. The question presented before the court was whether a minor touch would be considered as a trivial act as per the application of section 95. It was finally held that the physical contact was not trivial in nature. Furthermore, he had continued to do such acts despite her raising objections and hence was found guilty.
[1] United States v. Currans (1927) Justia US Law.
[2] Hemant More (2020) (1840) 2QB 47 archives, The Fact Factor. Hemant More. Available at: https://thefactfactor.com/tag/1840-2qb-47/ (Accessed: December 31, 2022).
[3] Kilara, A. (2007) “JUSTIFICATION AND EXCUSE IN THE CRIMINAL LAW: DEFENCES UNDER THE INDIAN PENAL CODE,” Stud Bar Rev (2007), pp. 13–30. Available at: http://www.scconline.com (Accessed: December 31, 2022).
[4] Harbhajan Singh v. State of Punjab, A.I.R. 1966 H.C. 97
[5] Indian Evidence Act, 1872 s105
[6] SUPRA n.4
[7] Id
[8] Dressler, J. (1988) “Provocation: Partial justification or partial excuse?,” The Modern Law Review, 51(4), pp. 467–480. Available at: https://doi.org/10.1111/j.1468-2230.1988.tb01767.x.
[9] SUPRA n.4
[10] Id
[11] FLETCHER, G (1993) “The nature of justification,” Action and Value in Criminal Law, pp. 175–186.
[12] SUPRA n.4
[13] Id
[14] Id
[15] Moriya, V.S. (2022) “DEFENCE OF INFANCY AND STATUS OF JUVINILE,” Manupatra Articles, pp. 1–9.
[16] Indian Penal Code 1860, s82
[17] Indian Penal Code 1860, s83
[18] Id
[19] Ray, R. (2020) A critical study of the plea of infancy as a species of … – IJRA, INTERNATIONAL JOURNAL OF RESEARCH & ANALYSIS.
[20] Gopinath Ghosh v. State of West Bengal, AIR 1984 SC 237
[21] SUPRA n18
[22] Sarpal, P. (no date) Infancy and criminal liability, Legal Service India – Law, Lawyers and Legal Resources.
[23] SUPRA n.20
[24] SUPRA n.16
[25] King Emperor v Baba Sein, A.I.R. 1938 HC (India)
[26] Abdul Sattar vs. The State of Mysore (1955) 1 S.C.C 334
[27] Shilpa Mittal v State NCT of Delhi, A.I.R. 2020 HC (India)
[28] Sharma KM, Defence of Insanity in Indian Criminal Law (EBC Publishing Pvt Ltd 1965)
[29] Math SB, Naveen Kumar C and Moirangthem S, “Insanity Defence: Past, Present, and Future” (2015) 37 Indian Journal of Psychological Medicine 381
[30] Indian Penal Code 1860, s 84
[31] R v Edward Arnold (1724) 1 Columbia Law Review
[32] Bhardwaj S, “Insanity as a Defence” [2020] SCC Online Web Edition 147 <http://www.scconline.com> accessed October 21, 2022
[33] R v Mc’Naughten (1843) 1 Open law
[34] Shrikant Anandrao Bhosale v State of Maharashtra (2002) 1 SCC
[35] Rattan Lal v State of MP (1970) 1 SCC
[36] Chajju and ors v Emperor (1921) 1 SCC
[37]“Substantive Criminal Law” (no date) Pathshala, pp. 1–11.
[38] Indian Penal Code 1860, s76
[39] Indian Penal Code 1860, s79
[40] K.D. Gaur, Penal Code, 1860 93 (1992).
[41] SUPRA n.38
[42] Parihar, S. (2021) Mistake as a general exception under IPC – section 76 and 79, Writing Law. Available at: https://www.writinglaw.com/mistake-as-general-exception-ipc/ (Accessed: December 31, 2022).
[43] SUPRA n.40
[44] Id
[45] SUPRA n.43
[46] Indian Penal Code 1860, s52
[47] Hidayaiullah and Manohat (Ed.). Ratanlal and Dhirajlal in the Penal Code, 1860 41 (1996)
[48] Raj Kapoor v. Laxman AIR 1980 SC 605
[49] Keso Sahu v. Saligram A.I.R. 1977 (HC) 1725
[50] Chirangi v. State A.I.R. 1952 (HC) 1212
[51] Arora, M. (2018) “Doctrine of Necessity | Sec 81 Indian Penal Code,” CRIMINAL LAW RESEARCH & REVIEW [Preprint].
[52] Indian Penal Code 1860, s81
[53] Southwark London Borough Council v. Williams, (1971) Ch 734
[54] More, H. (2021) Doctrine of jus necessitatis: Section 81 of the Indian Penal Code, The Fact Factor.
[55] Id
[56] SUPRA n.52
[57] Id
[58] SUPRA n.53
[59] Gopal Naidu v. Emperor A.I.R.1923 (HC) 605
[60] Tata Cellular v. the Union of India (1994) 6 S.C.C 651
[61] Election Commission of India v. Dr. Subramaniam Swamy (1996) 4 S.C.C 104
[62] Indian Penal Code 1860, s96
[63] Indian Penal Code 1860, s97
[64] Indian Penal Code 1860, s98
[65] Indian Penal Code 1860, s99
[66] Indian Penal Code 1860, s100
[67] Indian Penal Code 1860, s101
[68] Indian Penal Code 1860, s102
[69] Indian Penal Code 1860, s103
[70] Indian Penal Code 1860, s104
[71] Indian Penal Code 1860, s105
[72] Indian Penal Code 1860, s106
[73] Simran and NLU, C. (2014) “Right of Private Defence,” Academike [Preprint].
[74] Id
[75]Cheah, W.L. (2014) ‘private defence’, in collection of essays marking the 150th anniversary of the Indian Penal Code (ashgate), 2011., Academia.edu.
[76] India, legal S. (no date) Lawyers – our offices in India, Lawyers in India – Advocates,Law Firms,Attorney directory,Lawyer,vakil.
[77] SUPRA n.74
[78] Id
[79] Id
[80] Id
[81] Amjad Khan v. State A.I.R. 1952 (HC) 165
[82] Mohinder Pal Jolly v. State of Punjab AIR 1979 (SC) 577
[83] Darshan Singh v. State of Punjab (2010) S.C.C 1
[84] India, N. (2010) Supreme Court lays down guidelines for right of private defence for Citizens, LAW RESOURCE INDIA.
[85] Nemerofsky, J. (no date) “What is a ‘Trifle’ Anyway?” in Nemerofsky. 2nd edn. (2001/02), pp. 315–341.
[86] Indian Penal Code 1860, s95
[87] SUPRA n.86
[88] Applicability article
[89] SUPRA n.86
[90] Id
[91] SUPRA n.87
[92] SUPRA n.86
[93] State v. Amritlal Amanlal (1953) 1 S.C.C. 801
[94] Mrs. Rupan Deol Bajaj & Anr vs Kanwar Pal Singh Gill A.I.R. 1996 SC 309
Author – Riyan Karbhari
BBA.LL.B – O.P. Jindal Global University