Report No. 42
4.41. Section 90.-
Section 90 defines the situations in which the consent apparently to be given by a person is not sufficient for purposes of the Code. It was suggested that consent obtained from a person by putting him under hypnotic or other occult influence should be specifically mentioned in the section. We have little doubt that if ever a concrete case of this sort came up, the courts would have no difficulty in holding such consent to be insufficient even under the existing provision. The influence on the mind could be regarded as having produced either a misconception of fact or an inability to understand the nature and consequence of that to which the person gives his consent. It does not appear necessary to amplify section 90 to cover such cases which in any event are not of practical importance.
4.42. Section 91.- No change is required in section 91.
4.43. Section 92.-
Section 92 provides for a situation of emergency where there is no time to obtain the consent either of the person affected or of his guardian, and the law therefore says that, if the act causing harm or likely to cause harm is done for the benefit of the person concerned and done in good faith, it is no offence. The same safeguards as occur in section 89 are provided in this situation also, and the Explanation attached to the section says that pecuniary benefit is not "benefit" within the meaning of the section.
The type of case envisaged by the section is that of a surgeon who suddenly finds it necessary to perform an operation and has no time to obtain anybody's consent. He is protected, subject to the safeguards mentioned, if he acts in good faith for the patient's benefit. A suggestion was made that the power of a surgeon in such circumstances should be further widened, so as to do away with the requirement of consent altogether even if there be time to obtain consent. We feel no justification for such a change, since, under the law as it is, a surgeon has sufficient protection in suitable cases, and to widen that protection would be some what risky, apart from placing too heavy a burden on a surgeon. We are, therefore, not proposing any change in section 92.
4.44. Section 93.-
Nor is any change needed in section 93, which protects a communication made in good faith for the benefit of the person to whom it is made.
4.45. Section 94 revised.-
Section 94 embodies the principle that a person compelled by force or threat of force to do any act should not be punished for that act. To this there are two exceptions, namely, murder and waging war against the Government of India1 (which is the only offence against the State punishable with death). Further, the threat must be of instant death to the person made to commit the offence. Another condition is that the person so threatened should not have placed himself in that situation of his own accord. It is only right that the law should in no circumstance excuse murder or waging war against the State and, to that extent, the stringent rule contained in section 94 should remain as it is.
There are, however, two directions in which we feel that the defence of duress can be usefully extended. First, we think that for practical purposes threat of serious bodily injury can be, and usually is, as compelling as the threat of death. It may be mentioned here that in England in answering the question what is a sufficiently serious threat to amount to duress, "Blackstone refers to death or other bodily harm, Stephen to death or grievous bodily harm and Lord Goddard, C.J., in Steane2 to violence or imprisonment.3" According to Russell, the view "is freely held that threats of immediate and serious physical suffering, such as death or grievous bodily harm, should excuse from liability a person who may have committed a lesser offence, though certainly not a grave offence such as murder4". A person threatened with grievous bodily harm should, therefore, be permitted to plead duress as an excuse in the same way as a person threatened with death.
Secondly, we thin.-and even more firml.-that threat of death or serious bodily injury to someone very near and dear to a person, can be even more compelling than threat of injury to a person himself. It has been said, and we agree, that "many a man who regards his own personal safety as of little significance will be subjected to the most extreme stress of mind if confronted with a threat to kill or seriously injure his wife or child5"
We propose, therefore, to include such a threat in the rule in section 94, limiting, however, the list of near relatives to the children, the parents and the spouse of the person threatened. The two Explanations should be put as illustrations, as they deal with special situations and do not contain a clarificatory provision.
In the light of the above, section 94 should be redrafted as follows.-
"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 or grievous bodily harm, either to that person or to any near relative of that person present when the threats are made, 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 or grievous bodily harm,6 place himself in the situation by which he became subject to such constraint.
Explanation.- In this section.-
(a) 'grievous bodily harm, means permanent privation or impairment of the sight of either eye or the hearing of either ear, or privation of any organ, member or joint of the body7;
(b) 'near relative' means parent, spouse, son or daughter.
(a) 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.
(b) A smith seized by a gang of dacoits and forced, by threats of instant death or grievous bodily harm, to take his tools and to force the door of a house for the dacoits to enter and plunder it, is entitled to the benefit of this exception."
1. Section 121.
2. (1947) 1 All ER 816.
3. Smith and Hogan, Criminal Law, (2nd Edn.), p. 144.
4. Russell on Crime, (12th Edn.), Vol. I, p. 90.
5. Edwards Compulsion, Coercion and Criminal Responsibility, (1951) 14 Modern Law Review 296, 301.
6. The expression 'grievous bodily harm' has been preferred to the expression 'grievous hurt', which, as defined in section 320, is very wide.
7. See the revised definition of "grievous hurt" proposed in chapter 16 below. Only the first two clauses of that definition are included in "grievous bodily harm". See para. 16.55, below.
4.46. Section 95.-
Section 95 is an application of the maxim de minimums non curat lax to the field of criminal law. If the harm caused by an act is so small that no man of ordinary sense and temper would complaint of it, the act does not amount to an offence. The object of this provision is "to exclude from the operation of the Penal Code those cases which, from the imperfection of the language, may fall within the letter of the law but are not within its spirit.1 No change is needed in the section.
1. Veeda Menezes v. Yusuf Khan, 1968 SCR (Supp) 123: AIR 1966 SC 1773 (1774).
4.47. Sections 96 to 10.-re-arrangement recommended.-
Sections 96 to 106 which analyse and delimit the right of private defence come up before the courts for interpretation and application more frequently than the other sections in this chapter. After stating the general exception in section 96 that nothing is an offence which is done in the exercise of this right, the right is analysed in the subsequent sections from two aspects, namely, defence of the body and defence of property. Section 97 defines these two aspects.
While sections 98 and 99 are applicable in relation to both aspects, sections 100, 101, 102 and 106 are concerned with defence of the body and sections 103, 104 and 105 are concerned with defence of property. We propose below a re-arrangement of the provisions, bringing together those relating to the right to defend the body in one section and those relating to the right to defend property in another section. This would, it seems to us, make for an easier understanding of the provisions and facilitate their application in relevant cases.
4.48. Section 97.-
In defining the right to defend property, section 97 uses the phrase "offence falling under the definition of theft, robbery, mischief or criminal trespass". The intention and effect of this formula is obviously to cover all aggravated forms of the offences named. There appears to be no particular point in using the words "any act which is an offence" in the second clause of section 97, since section 98 adequately covers all cases where the act is not an offence on the part of the doer but the right to defend still exists. The right to defend property may accordingly be defined as follows.-
"Every person has a right to defend the property, whether moveable or immoveable, of himself or of any other person against any offence which is or includes robbery, theft, mischief or criminal trespass and any attempt to commit any such offence."
4.49. Section 98.- Section 98 does not require any change.
4.50. Section 99.-
Section 99 has four paragraphs and two explanations. The first two paragraphs preclude the exercise of the right of private defence against acts done by, or under the direction of public servants, in certain circumstances, but this is subject to the two explanations, the first being relevant to the first paragraph and the second to the second paragraph. The third paragraph altogether debars the right of private defence in cases in which there is time to have recourse to the public authorities. We consider this provision later at length as it is controversial and raises a question of policy. The fourth paragraph contains the basic provision that 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.