Login : Advocate | Client
Home Post Your Case My Account Law College Law Library

Report No. 42

Chapter 4

General Exceptions

4.1. Introductory.-

Chapter 4 with the title "general exceptions", contains a set of rules which limit and override the verbal definition of every offence. The object of putting them together at one place, is, in the words of the Law Commissioners, "to obviate the necessity of repeating in every penal clause a considerable number of limitations".

4.2. Section 76.-

Section 76 says that if a person is bound by law to do something and does it, he commits no offence, and similarly if a person believes in good faith, owing to a mistake of fact, but not of law, that he is bound to do something and does it, he commits no offence either. The principle governing the two propositions is sound and we do not propose to disturb it. Difficulties may, of course, arise when deciding whether a particular act was done in good faith , or done because of a mistake of fact; but those difficulties do not affect the principle.

4.3. Illustration (a.-omission recommended.-

Two illustrations are given below the section. The first, intended to illustrate the first proposition, runs thus:

"A, a soldier, fires on a mob by the order of his superior officer, in conformity with the commands of the law. A has committed no offence."

The illustration is not well-expressed. It is not clear whether it is the order of the superior officer that has to be 'in conformity with the commands of the law', or it is the soldier's firing on the mob that has to be in such conformity. Further, the situation imagined by this illustration raises controversial questions concerning the duty of a soldier. The proposition sought to be illustrated is self-evident and does not really need any illustration. We think, therefore, that this illustration should be deleted.

4.4. Section 79.-

Section 79 which is complementary to section 76, is also in two parts. It says first that an act which a person is justified by law in doing is not an offence, and secondly, that an act that the person doing it believes in good faith, and by reason of a mistake of fact, to be justified in doing, is not offence.

4.5. Sections 76 and 79 formally revised.-

While neither section 76 nor section 79 requires any modification of substance, the four propositions contained in the two sections should, we think, be paired differently. The first parts of the two sections naturally go together, and may be combined in section 76 as follows.-

"76. Act done by a person bound or justified by law.- Nothing is an offence which is done by a person who is bound by law to do it or is justified by law in doing it."

Similarly, the second parts of the two sections which have the common elements of mistake of fact and bona fide belief may be combined in section 79 as follows.-

"79. Act done by a person by mistake of fact believing himself bound or justified by law.- Nothing is an offence which is done by a person who, by reason of a mistake of fact and not by reason of a mistake of law, in good faith believes himself to be bound by law to do it or justified by law in doing it.


(a) A, an officer of a Court of Justice, being ordered by that Court to arrest Y, and, after due enquiry, believing Z to be Y, arrests Z. A has committed no offence.

(b) 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 fact, 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."

4.6. Mistake of law under the Code.-

Basing itself on the age-old maxim ignorantia legis non excusat, the Code does not recognise any immunity from criminal liability on the ground of a mistake of law. This is made clear by the express wording of sections 76 and 79 which, while allowing an exception for certain acts done under a mistake of fact, exclude acts done by a person who, by reason of a mistake of law, believes himself to be bound by law to do the act or to be justified by law in doing it.

4.7. Question of modifying present rule considered.-

We have considered the question whether this position should be modified in any way, but have come to the conclusion that notwithstanding its rigidity, it would not be desirable to change the rule.

One of us, however, is of a different opinion which he has expressed in a separate note.1 Broadly, his suggestion is that where the mistake of law relates to a provision of a rule, bye-law, order or notification made under an Act of the legislature, and the accused person's mistake is of such a nature that he could not have avoided it by due diligence, then the mistake should be a defence, but the burden of proving it should be on the accused person.

1. See separate Note by Shri R.L. Narasimham.

4.8. Justification for the rule.-

Various justifications for the rule have been advanced in the past by jurists. One is that the law is definite and ascertainable and everyone may therefore be presumed to know the law. If this is the basis of the present position, it is clearly inadequate. The vastness and complexity of penal legislation in the modem State is not to be-denied and the presumption about everyone knowing the law cannot stand scrutiny for a moment.

If one could assert that every rule of criminal law represents what is morally right, it would naturally follow that a person violating the rule should not be allowed to plead ignorance, but such an assertion cannot be accepted as valid in regard to many injunctions of the criminal law. While, of course, many of them are based on undisputed moral principles, there are, on the other hand, a large number which one could only describe as moral because they do not claim to be based on ideas of what is morally right and morally wrong.

The real justification for not allowing mistake of law as a defence seems to be that the operation of a provision of the law is intended to be independent of its being known to everybody and it ought to be so. If it were not so, great uncertainty will be introduced in the enforcement of the law and may well lead to injustice.

4.9. Practical difficulties in the absence of the rule.-

But for the rule, many investigations into offences would have to branch off into collateral inquires because it would be obviously unfair to send up the person charged for trial when there is something in his plea of ignorance of the legal provision. Difficulties would be still greater when the accused is prosecuted. True, the Court has even now to inquire into the state of mind of the accused for various other purposes; but there are materials on which the court draws inferences as to mental states like fraud, dishonesty, malice and absence of due care.

Subjective though these elements may be, they are investigated on the basis of objective facts. The position will be very different when the court has to determine whether the accused knew or correctly interpreted the content of a statutory provision or a provision of subordinate legislation. The accused has merely to assert in the witness-box that he did not know of it and the prosecution will immediately be faced with the task of disproving his assertion by cogent evidence.

4.10. Due diligence test not practical.-

Would the case be materially different if, instead of allowing the plea of ignorance of law in all cases, it is allowed only when the accused could not have known the provision of law even with due diligence? We are afraid that the difficulties of the trying court would not be substantially reduced. Unless every statutory rule, order, bye-law or notification has been translated into the language of the accused and widely published (and where the accused is an illiterate or semi-literate person, was also explained to him), he could say that even with due diligence he could not have known the law in question.

Indian Penal Code Back

Client Area | Advocate Area | Blogs | About Us | User Agreement | Privacy Policy | Advertise | Media Coverage | Contact Us | Site Map
powered and driven by neosys