Consent in Criminal

Law
Section 87-93
 Defence of consent against criminal
liability may arise when a defendant can
argue that, because of consent, there
was no crime
The Indian law on consent and benevolence
is contained in Sections 87 to 93.Section
88,89,93 lay down the law on benevolence.
In case of consent,the act done is excused
in some cases because the sufferer had
consented to its being done,while in case of
benevolence,it is excused because it was
done in good faith for the benefit of the
sufferer,though with or with out consent.
 Definition of Consent
 Two or more persons are said to consent when they agree upon the
same thing in the same sense. – s.13 of The Indian Contract Act,
1872
 Consent means an act of reason accompanied with deliberation of
mind, weighing as in a balance the good and evil on each side. -
Story
 ‘Consent’ means a consent freely given by a rational and sober
person so situated as to be able to form a rational opinion upon the
matter to which he consents. Consent is said to be given freely
when it is not procured by force, fraud, or threats of whatever
nature. – Sir James F. Stephen
Note:- Consent should not be confused with submission, because
every consent involves submission but mere submission does not
involve consent.
 Consent as a defence
 Consent is a complete answer to the civil suits arising of what is ,
with the consent of the person complaining of it. Under civil law no
suit can be brought as a consequence to anything such done. This
is so because the court is only concerned with the wrong so
asserted to have been done with the complainant.
 The situation in the criminal law is quite different. The ultimate aim
of the criminal law is punishing the acts so that they can be
prevented in the interest of the society. The consent of the
immediate sufferer is immaterial if the injury to society remains.
 Provisions of IPC and Consent
 Consent is not specifically  The provisions of IPC which
defined in IPC. are the subject of scrutiny in
 But, it is an important this presentation are as
component of the penal following – ss. 87, 88, 89, 90,
framework of India. 91, 92, 300 (Exception 5), 313,
 It is of paramount importance 314, 375, 376 A, 378.
in cases of sexual offences and  Consent plays an important
theft. part not only in offences
 Interconnected perusal of IPC relating to the injury to the
portrays the significance of person but also in offences
consent in criminal law. relating to property such, such
as theft, and sexual relations,
 Consent has profound impact such as rape.
on the determination of
punishment for the offences
committed by an individual.
 General exceptions

Theft Sexual offences

Consent

Miscarriage without consent Culpable homicide not murder

 Section 87 of IPC
 This section is based on the maxim volenti non fit injuria (he,
who consents, suffers no injury).
 This maxim is founded on two very simple propositions:-
 every person is the best judge of his own interest; and
 no man will consent to what he thinks hurtful to himself.
 Games , such as fencing single sticks, boxing, football and the like,
are protected by this section.
 The act consented to, though not intended to cause death or
grievous hurt, should be one which, from its nature, is not likely to
have such result.
 No consent will authorise any act which is intended to cause death
or grievous hurt. – R v. Denoven [1934] 2 KB 1948
 Continued….
 A person cannot consent to suffer death, or to run the risk of death,
under the provisions of this section; but to cause death with such a
consent though an offence, will no amount to murder, but only to
culpable homicide.
 The expression harm connotes hurt, injury, damage, impairment,
moral wrong or evil. In ss. 81, 87-89, 91-92, 100, 104 and 106 of
the IPC it means physical injury.
 The consent under this section must be given by a person above 18
years of age. The consent may either be express or implied.
 The sort of contests which are protected by s. 87 are those where
life and limb are not exposed to no serious danger in the common
course of things…. as in wrestling, single stick, sparring with gloves,
football and the like. – R v. Coney LR 8 QBD 534,537, per Mathew J.
 Section 87
 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 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 of IPC
 Any harm, except the intentional death, may be caused if the act
(i.e. harm) is done , by the doer, in good faith and for the benefit
of the consenting person who must, by virtue of the provision of
s. 90 be, at least, of 12 years of age.
 Distinction between ss. 87 and 88:-
i. Any harm may be inflicted, except the intentional causing of death under
this section, while besides death even grievous hurt cannot be
consented under s. 87.
ii. There is no provision as to the age of the consenting person in this
section; but s. 90 provides that the consent of a child under 12 years of
age is not a such a consent as intended by the Code. The consenting
party must be above 18 years of age u/s 87.
iii. Under this section of the act must be done for the benefit of the person
consenting thereto. There is no such condition for act done u/s 87.
iv. It must be done in good faith (s. 52) to bring any act under this section.
For seeking the benefit of s. 87 it is not a pre-requisite.
 Continued….
 This section generally protects the medical practitioners from
punishments by categorising their acts following the consent of the
person as not an offence within the meaning of provisions of IPC.
 Important cases:-
 Emperor v. Surajbali 7 CrLJ 306, 5 All LJ 155
 Sukaroo v. Emperor 14 ILR cal 566,568
 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 :

 First.— That this exception shall not extend to the intentional causing of death, or to
the attempting to cause death;
  
 Secondly.—That this exception shall not extend to the doing of anything which the
person doing it knows to be likely to cause death, for any purpose other than the
preventing of death or grievous hurt, or the curing of any grievous disease or infirmi­
ty;
  
 Thirdly.— That this exception shall not extend to the voluntary causing of
grievous hurt, or to the attempting to cause grievous hurt, unless it be
for the purpose of preventing death or griev­ous hurt, or the curing of any
grievous disease or infirmity;
  
 Fourthly.—That this exception shall not extend to the abetment of any
offence, to the committing of which offence it would not extend.
 Thirdly.— That this exception shall not
extend to the voluntary causing of
grievous hurt, or to the attempting to
cause grievous hurt, unless it be for the
purpose of preventing death or griev­ous
hurt, or the curing of any grievous disease
or infirmity;
 Fourthly.—That this exception shall not
extend to the abetment of any offence, to
the committing of which offence it would
not extend.
 Section 89 of IPC
 This section protects harm caused to a person below 12 years of
age or of unsound mind by his guardian himself or by another
with his consent in good faith for the benefit of the said child or
the person of unsound mind.
 This section is the result of the incapacity of certain persons to give
the consent.
 To invoke the provisions of this section, it is necessary to show that
the act done was for the benefit of the person under 12 years of
age or of unsound mind. – Nanku v. Emperor AIR 1935 All 916
 But the principle, underlying this section, would be available even to
case of child above age of 12 years. – Natesan v. State of Madras
AIR 1962 Mad 216
 Continued….
 This section covers the implied consent of guardian to infliction of
reasonable punishment on the child by teacher which is
moderate and necessary for the maintenance of school discipline.
 Differences between this section and sections 87 and 88:-
i. The people who may inflict the harm are confined to one or other of the
three classes, viz, guardians, or persons having lawful charge of the
person upon whom the harm is inflicted; or persons acting with the
consent of either a guardian or person having charge, as the case may
be.
ii. The person so caused to suffer must be either (a) child under 12 years
of age, or (b) a person of unsound mind. Their consent is in that of their
guardians.
 Section 88
 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
  
  
 Illustration
  
 A, a surgeon, knowing that a particular
operation is likely to cause the death of Z,
who suffers under a painful complaint, but
not intending to cause Z's death, and
intending in good faith, Z's benefit performs
that operation on Z, with Z's consent. A has
committed no offence.
 Section 90 of IPC
 This section does not define the consent but describes the nature
of ‘consent’ as the term is used in IPC. The consent must be free.
 Where the consent of a person may afford a defence to criminal
charge such consent must be a real consent, not vitiated by
immaturity, fear or fraud.
 A consent given under either of the following circumstances is
not a true or valid consent under this section:-
1. Under fear of injury or Under a misconception of fact; and the person
doing the act knows and has reason to believe that the consent was
given under such fear or misconception.
2. By a person of unsound mind or a drunken person; if he is unable to
understand the nature and consequences of the act which he ‘consents’.
3. By a person under 12 years of age unless the contrary appears from the
consent..
 Continued….
 Consent given under a misconception of fact is no consent. –
Purshottam Mahadev v. State of Maharashtra AIR 1963 Bom 74
 Even if the consent was given under a misconception of fact, if the
doer of the act did not know, or had a reason to believe, that the
consent was given in consequence of the misconception, the
consent would be valid and protect the doer of the act. – Sukumar
Ghosh v. State (1985) 2 Crimes 377 (Cal)
 Consent obtained by fraud is not a consent.
 Consent must be given with the full knowledge of the risk
(application of Exception 5 to Section 300).
 Section 91 of IPC
 This section is a sort of exception to ss. 87-89.
 These sections have no application of acts which are offences (i.e.
punishable under the Code, or under any special or local law)
independently of any harm that they may cause.
 Each of these sections is by its terms limited to acts which are offences
‘by reason of any harm’.
 The word harm in this section is no synonymous with the word injury
as defined by s. 44 of this Code. ‘Harm’ in this section is confined to
physical injury only. – Durga Chand v. State of Orissa AIR 1966 SC
1775
 This section has now to be read with the provisions of the Medical
Termination of Pregnancy Act, 1971. it has overriding effect over the
IPC. [ ss. 3(1) and 5(2) of the said Act]
 Sections 313 and 314 must also be read in this light.
 Section 92 of IPC
 The object underlying this section and ss. 88 and 89, is to provide
protection to the medical practitioners in the larger interest of the
society.
 Constructive consent by the operation of law can be manifested
here.
 The essence of this section is this. If it is impossible for a person to
give consent under s.88,or, being an incapable person, u/s 89, it is
impossible to obtain in time the consent of his lawful custodian
under that section, then, the person, desiring to act bonafide for his
benefit, may proceed to do so without obtaining the consent.
 Benefit as provided in this section does not include pecuniary
benefit. It is something physical, and not merely a fancied tangible
one, such as the attainment of greater spiritual excellence.
 Continued….
 Good faith (s.52) involves ‘due care and attention’, which
necessarily imply in these cases competent knowledge and skill on
part of the operator. The skill required is not the highest possible
skill, but a fair, reasonable and competent degree of skill. Grossly
unskillful or incautious use of remedies which result in death render
the practitioner guilty of culpable homicide.
 Shimbhu Narain v. King-Emperor AIR 1923 All 546
 Difference between ss. 89 and 92: similar in most of the aspects,
there is a difference viz. s.89 (‘thirdly’) speaks of ‘grievous hurt’
while s.92 (‘thirdly’) speaks of ‘hurt’. That is to say u/s 89 grievous
hurt may be caused, but under s. 92 only hurt can be caused.
Therefore, moderate corporal punishment by school master can be
justified u/s 89 and not s.92.
Exception 5 to Section 300 of IPC
 This section deals with the death caused with the consent of the
person. The application of this section requires that the person
whose death is caused must have consented to the must causing of
his death or the taking of the risk of death. The person consenting
must be above the age of 18 years.
 The consent must be unconditional without any reservation and must
be unequivocal that is, there must be no choice of alternatives to
which the person taking the life more or less has driven the person.
 Dasrath Paswan v. State of Bihar AIR 1958 Pat 190
 Consent under this exception must be free consent and not a consent
obtained or given under misconception of facts. – Poonai Fattemah v.
Emperor (1869) W.R. (Cr.) 7
 Ambalathil Assaenar In re AIR 1956 Mad 97
 Section 375 of IPC
 This section lays down the conditions that constitute the sexual offence
of rape.
 The main ingredients of this section are: sexual intercourse by a man
with woman; and the intercourse must be under circumstances falling
under any of the six clauses of s.375.
 William’s case (1850) 4 Cox 220
 Flattery (1877) 2 QBD 410
 Uday v. State of Karnataka 2003 CrLJ 1539 (SC)
 Every act done ‘against the will’ of a person, no doubt, is done ‘without
his consent’, but an act done ‘without the consent’ of a person is not
necessarily ‘against his will’, which expression imports that the act is
done spite of the opposition of the person to the doing of it.
 S.376 A of IPC.
 Section 378 of IPC
 Theft.
 Explanation 5
 Illustration (m) and (n)
 Conclusion
 Consent in criminal law though
not an absolute factor, cannot be
overlooked as it plays a vital role
in the determination of
punishment. Therefore, just think
twice before consenting to any
act .