GENERAL EXCEPTION UNDER INDIAN PENAL CODE

(SECTION 76-106 of IPC)

 INTRODUCTION

• Certain persons are exempted from the operation of the criminal law.
• Article 361 of the constitution of India stipulates that the president of
India, Governor of state or Rajpramukh are not answerable to the
courts with respect to matter pertaining to the performance of their
powers and duties.
• No criminal proceedings can be instituted on them during their term of office and
they are also immune from arrest or imprisonment.
• Chapter VI of the Indian Penal Code (IPC) captioned as ‘General Exceptions’,
comprising section 76 to 106, exempts certain persons from criminal liabilities.
• The general exceptions limit and override offences and penal provisions of the
code. This title is used to convey that these ‘exceptions’ are available to all
offences.
 SECTION 6 OF IPC
• Throughout the Code (IPC) every definition of an offence, every penal
provision, and every illustration of every such definition or penal
provision, shall be understood subject to the exceptions contained in
the Chapter IV entitled “General Exceptions”, though those exceptions
are not repeated in such definition, penal provision, or illustration.
 BURDEN OF PROOF
• General principle - In general prosecution has to prove its case beyond
reasonable doubt against the accused person.

• General exception - As per section 105 of the Indian evidence Act, the
claimant of the general exception has to prove the existence of situation
and circumstances of general exceptions.
 CATEGORIES OF GENERAL EXCEPTIONS

• Excusable Acts - An Excusable Act is the one in which though the person
had caused harm, yet that person should be excused because he cannot be
blamed for the act. For example, if a person of unsound mind commits a
crime, he cannot be held responsible for that because he was not having
mens rea.
• Judicially Justifiable Acts - A justified act is one which would
have been wrongful under normal conditions but the
circumstances under which the act was committed makes it
tolerable and acceptable.
 EXCUSABLE GENERAL EXCEPTIONS
• Mistake of fact (Section 76 & 79)

• Accident (Section 80)

• Infancy (Section 82 & 83)

• Insanity (Section 84)

• Intoxication (Section 85 and 86)

 JUSTIFIED GENERAL EXCEPTIONS
• Judicial Act (Section 77 and 78)
• Duress (Section 94)
• Necessity (Section 81)
• Trifles (Section 95)
• Consent (Section 87 – 89 and 92) • Private Defence (Section 96-106)
• Communication (Section 93)
 MISTAKE OF FACT (Section 76 & 79)
MAXIM “ignorantia facti doth excusat, ignorantia juris non
excusat” means, mistake of fact is excusable but mistake of law is not
excusable.
According to section 76 of IPC, Any Act done by a person who is or
by reason of a mistake of fact, not by mistake of law in good faith
believes himself, to be, bound by law to do such act, can avail for
mistake of fact exception.
But this exception is not applicable if the fact itself is illegal.
 R. vs. Prince(1875) LR 2 CCR 154, in this case a man was
held guilty for abducting a girl below 16 years under the belief
that she was above 18 years of age.
According to Section 79 of IPC , an Act done by a person who is
justified by law, or who by reason of mistake of fact and not
mistake of law in good faith, believes himself to be justified by
law, in doing that particular act can defend himself by this
general exception.
 In Raj Kapoor v. Laxman (AIR 1980 SC 605), if the central board of film
certification grants public display of obscene and indecent film, the producers
and other connected agencies are protected under section 79 of IPC.

 In Chirangi v. State (1952 CrLJ 1212), the accused, in a momentary

delusion, mistook his own son as a tiger and killed him.
 JUDICIAL ACT (Section 77 & 78)
Section 77 of IPC :-

• Any Act done by a Judge

• In the exercise of power given by law

• Which in good faith he believes to be given to him

 In Surendra Kumar Bhatiya v. Kanhaiya Lal & ors. (AIR
2009 SC 1961), it was held that collector while exercising his
power under Land Acquisition Act is neither a judge nor acting
judicially.
Section 78 of IPC :-
• Act done
• By virtue of a judgment or order of a Court
• While in force
• Even if Court had no jurisdiction, but person in good faith believes
Court had jurisdiction
 Ramlal Kanhaiyalal Somani A v. Ajit Kumar Chatterjee And Ors. (AIR
1973 Cal 372), magistrate issued a warrant to attach properties that included
the properties of other party of the partnership firm. The court had no
jurisdiction to issue such order. The executive officer believed in good faith
that he was bound to execute the order. Thus, attached the property. The High
court held the Act of the executing officer was protected under this section.
 ACCIDENT (Section 80)
Section 80 of IPC: -

• Act done by accident or misfortune

• Without any criminal intention or knowledge

• While doing a lawful act in a lawful manner by lawful means

• With proper care and caution, then he can avail the general exception under this
section.
 Tunda vs. Rex (AIR 1950 All 95), were two wrestlers participated in a
wrestling match. One of them sustained injuries which resulted in his death.
The other person was charged under s. 304 of IPC. The court held that both
agreed to wrestle with each other, there being implied consent to suffer
accidental injuries. In the absence of proof of foul play the act was
accidental and unintentional, and the case fell within section 80 of IPC.
 NECESSITY (Section 81)
Section 81 of IPC:-

• Act done with knowledge to cause harm

• Without any criminal intention to cause such harm

• In good faith

• To prevent or avoid other harm to person or property.

A crime cannot be committed in order to avoid a greater harm.
The genesis of this principle (necessity) emanates from two maxims:
• QUOD NECESSITAS NON HABET LEGEM (Necessity knows no
law) and;
• NECESSITAS VINCIT LEGEM (Necessity overcomes the law).
 In Re Ramaswamy Ayyar (AIR 1921 Mad 458), where a
village magistrate put a restraint upon a drunkard who was
threatening to commit breach of peace and was a danger to
villages, it was held that the village magistrate, even as a
private citizen was protected by this section.
 R v. Dudley and Stephens ([1884] 14 QBD 273), Dudley and
Stephens to save themselves from starvation kills another person for
the purpose of feeding on his flesh and blood. The Court held that
the Act was murder and awarded them the sentenced to death,
however the death sentence was commuted to 6 months of
imprisonment.
 INFANCY (Section 82 & 83)
Section 82 of IPC, nothing is an offence,
• Done by a child
• Under seven years of age.
This section presumes that a child below seven years is DOLI INCAPAX,
i.e. he is incapable of committing a crime and cannot be guilty of any
offence.
Section 83 of IPC, nothing is an offence,
• Done by a child
• Between 7-12 years of age
• Has no sufficient maturity of understanding to judge the nature
and consequences of his conduct
 INSANITY (Section 84)

Section 84 of IPC, nothing is an offence

• Done by a person of unsound mind
• Or incapable of knowing the Act
• Or that he is doing what is either wrong or contrary to law.
 In Ratan Lal v. State of Madhya Pradesh (AIR 1971 SC 778),
the accused was in habit of setting fire to his own cloths and house.
It was held this could hardly be called rational and likely verging
on insanity. The SC accepted the plea of insanity raised by the
accused and absolved him of criminal liability.
 INTOXICATION (Section 85 & 86)
Section 85 of IPC, nothing is an offence
• Done by a person
• incapable of knowing the nature of the act, or that he is doing what is either wrong,
or contrary to law
• provided that the thing which intoxicated him was administered involuntarily
without his will or knowledge.
Voluntary drunkenness is no excuse for commission of a crime.
 In Bablu Hussain v. State of Rajasthan (AIR 2007 SC 697), the
appellant under the influence of liquor, killed his wife and five
children, the SC rules that the mere proof of intoxication is not
enough to invoke section 85. The accused need to prove that the
intoxication was administered to him without his knowledge and
against his will.
Section 86 of IPC:- an act done is not an offence,
• unless done with a particular knowledge or intent,
• a person who does the act in state of intoxication, shall be liable to be dealt
with as if he had the same knowledge as he would have had if he had not
been intoxicated,
• unless the thing which intoxicated him was administered to him without
his knowledge or against his will.
 Basdev vs. State of Pepsu (AIR 1956 SC 488), The intoxicated appellant was
seated next to a boy during a meal served at a wedding. He asked the boy to move a
little to so that he would occupy a more convenient seat. The boy refused. He shot
him in the abdomen and killed him on the spot. The SC held that so far as attributing
knowledge is concerned, the intoxicated man is treated as if he was sober. So far as
intention is concerned, it is gathered from the general circumstances of the case and
the degree of intoxication.
 CONSENT (Section 87 to 92)

Section 87 to 91:- Acts done with the consent of the victim

which do not amount to an offence.
These section proceeds from the Roman maxim VOLUNTI
NON FIT INJURIA i.e. harm caused with consent cannot be
considered an injury.
Section 87 of IPC, nothing is an offence,
• Which is not intended to cause death, or grievous hurt or which is
not known by the doer to cause such death or hurt
• To any person above 18 years of age
• Who has given consent to suffer the harm (expressly or impliedly)
Section 88 of IPC, nothing is an offence,
• Which is not intended to cause death or any harm which it may cause or,
• Be intended or known by the doer to cause,
• To any person for whose benefit it is done
• In good faith
• With the victim’s consent to suffer that harm.
Section 89 of IPC, nothing is an offence,
• Done in good faith
• For the benefit of person under 12 years of age, or unsound mind,
• With the consent of guardian,
• Which is not intended to cause death or any harm which it may cause or,
• Be intended or known by the doer to cause.
Section 90 of IPC, a consent is not such a consent,
• If the consent is given by a person under fear of injury, or
• Under a misconception of fact, or
• Consent of insane person, or
• Consent of child (below 12 years of age)
 In Jakir Ali v. State of Assam (2007 (3) GLT 497), it was proved
beyond doubt that the accused had sexual intercourse with the victim
on a false promise of marriage. The Gauhati High Court held that
submission of the body by a woman under fear or misconception of
fact cannot be construed as consent and so conviction of the accused
under sections 376 and 417 of the Indian Penal Code was proper.
Section 92 of IPC, the act is not a crime which is done,
• For the benefit of a person who suffers harm
• Act must be done in good faith
• No time to obtain the consent from the victim
• Circumstances are impossible to signify consent.
 M Natesan v. State of Madras (AIR 1962 Mad 216), held that
corporal punishment given to student by a school teacher, with a
view to maintain discipline and making him to be aware of, and
to adhere to, good qualities, gets protection of section 88 and 89.
However, an immoderate corporal punishment does not attract
section 88 and 89.
 COMMUNICATION (Section 93)
Section 93 of IPC, no communication is an offence

• Made in good faith

• By reason of any harm to the person to whom it is made if it is made for the benefit of that
person.

Example:- A surgeon, in good faith, communicates to a patient his opinion that he cannot live.
The patient dies in consequences of the shock. A has committed to offence, though he knew it to
be likely that the communication might cause the patient’s death.
 DURESS (Section 94)
Section 94 of IPC, nothing is an offence which done by a person,
• compelled to do it under 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 reasonable
apprehension of harm to himself short of instant death, place himself in the situation by
which he became subject to such constraint.
• Except murder, and offences against the state punishable with
death.
Example:- A was caught by a gang of dacoits and was under fear
of instant death. He was compelled to take gun and forced to
open the door of house for entrance of dacoits and harm the
family. A will not be guilty of offence under duress.
 TRIVIAL ACTS (Section 95)
‘De minimis non curat lex’- The law takes no account of trifles.
Section 95 of IPC, nothing is an offence
• When a harm is caused or is likely to cause ,
• Even with intention or knowledge
• And the harm being slight that a person of ordinary sense and temper
would not complain.
 Bindeshwari Prasad vs. Kali Singh (AIR 1977 SC 2432), the
accused was alleged that he took away the certified judgement
copy of the complainant by signing his name. The complainant
obtained another copy. The court held that this was a case which
was coved under section 95.
 PRIVATE DEFENCE (Section 96 to 106)
Section 96 of IPC, Nothing is an offence in which a person harms another
person in the exercise of private defence.
• Right is exercised when there is real and immediate threat
• If life is threatened by grave danger, need not wait for State aid, unless
aid is available
• Right is protective or preventive and not punitive
• Not for self-gratification
• Right commences as soon as reasonable apprehension of danger
arises and continues till the apprehension continues.
• The aggressor cannot claim the right to self-defence
• No private defence against private defence
 Mannu v. State of UP (AIR 1979 SC 1230), when the deceased
were going to the market, they were attacked by the accused with
weapons. Although, there were injuries caused on the side of
accused as well and also loss of life, the SC rejected pea of self
defence, holding that the accused being the aggressors were not
entitled to the right of self defence.
 State of UP v. Ram Swarup (1974 AIR 1570), The person
exercising the right need not chase the feeling attacker and then
beat him. It was held that the self defence right ends with the
necessity for it.
Section 97 of IPC,
• Every person has a right
• To defend his own body, or
• The body of any other person
• Against an offence affecting the human body, or
• The property (movable or immovable) of himself or of any other
person.
• Against an offence falling under the definition of theft, robbery or
criminal trespass or any attempt to commit such offence.
Thus even a stranger may defend the person or property of another
person.
 In Akonti Bora v. State of Assam (1980 CriLJ 138), the court
held that while exercising the right of private defence of property
the act of dispossession or throwing out a trespasser includes right
to throw away the material objects also with which the trespass has
been committed.
Section 98 of IPC, the act is not a crime which is done under
right of private defence against the act of :
• Youth
• Insane
• Intoxicated person
• By reason of any misconception.
 Manikirki v. Emperor (AIR 1925 Rang 121), it was held, if a
drunkard man breaks law and attacks either the person or property
of people, any member of the public is entitled to exercise the right
of private defence against such attack, even the drunken man
himself is entitled to the protection of law.
Section 99 of IPC, 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 direction 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.
• The harm caused should be proportional to that of imminent
danger or attack.
 Patil Hari Meghji v. State of Gujarat (AIR 1983 SC 488),
where the accused continued to assault the deceased after he had
fallen down and rendered harmless, it was held that there was no
right of private defence.
Section 100 of IPC, When the right of private defence of the body extends to causing death,
• Assault to kill or cause grievous hurt
• Assault to commit rape to gratify unnatural lust
• Assault to kidnap or abduct
• Assault to commit wrongful confinement
• An act of throwing or an attempt to throw or administer acid.
The defender of this section shall prove that the offence defended was one among the above
and he acted within the limitations of sec. 99.
 Deo Narain v. State of UP (AIR 1973 SC 473), where the lathi blows were aimed at a
vulnerable part of the body like the head, it was held by the SC that the victim was
justified in using his spear to defend himself and as a result cause the death of the
deceased.

Section 101 of IPC, other than the circumstances specified under section 100, the
defender may cause any harm except death following the restrictions mentioned under
section 99.
Section 102 of IPC, Right of private defence commences as soon as
reasonable apprehension of danger to body arises and continues till the
apprehension continues.

 State of UP v. Ram Swarup (1974 AIR 1570), The person exercising the
right need not chase the feeling attacker and then beat him. It was held that
the self defence right ends with the necessity for it.
Section 103 of IPC, when the right of private defence of property extends to causing
death,
• Offence of Robbery
• Offence of house breaking by night
• Offence of mischief by fire to any building, tent or vessel used as human dwelling or
as place of custody of property
• Offence of theft, mischief or house trespass under circumstances causing reasonable
apprehension of death/grievous hurt.
Section 105 of IPC, Continuation of right of private defence of
property,
Section 104 of IPC, other than the circumstances specified
Against Theft continues:
unde section 103, the defender may cause any harm except
death following the restrictions mentioned under section 99.
i. Until offender has effected his retreat with property, or
ii. Assistance of public authority is obtained, or
iii. Property is recovered
Against Robbery continues:
i. Until Offender causes/attempts to cause death/ hurt/ wrongful
restraint, or
ii. As long as fear of instant death/ instant hurt/ instant personal
restraint continues
Against Criminal trespass or mischief:
i. As long as the offender continues in the commission of
criminal trespass or mischief.
Against House breaking by night:
i. As long as house trespass which has begun by such
housebreaking continues.
Example:- Suppose a thief into the house of an individual, and
attempts to hurt him instantly with a knife, then that individual
has the right to act in private defence and harm that thief to save
life and property.
Section 106 of IPC, Right of private defence against deadly assault
when there is a risk of harm to innocent person.
If in the exercise of private defence against an assault, a person
causes apprehension of death, in which defender has no choice but
harming an innocent person, his right will extend to the running of
that risk.
 In Wasan Singh vs. State of Punjab [(1996) Cr LJ 878 (SC)],
there was a fight between two groups. The accused himself received
nine injuries. He shot at the assailants with his gun, which however,
hit an innocent woman bystander, killing her. The supreme court
held that the accused had the right of private defence and hence he
was acquitted.