Shielding the Innocent

The Bharatiya Nyaya Sanhita, 2023 (BNS), marks a significant reform in India’s criminal justice framework, replacing the colonial-era Indian Penal Code. Among its critical features are the provisions on General Exceptions, which safeguard individuals from criminal liability under specific circumstances. These exceptions acknowledge that not every act that fits the technical definition of an offence should attract punishment. Rooted in principles of fairness, necessity, and moral justification, the General Exceptions play a vital role in ensuring that justice is delivered with a human touch.

When is an act done by a person bound by law or by mistake of fact believing himself bound, not an offence?

Nothing is an offence if it is done by a person who is, or who by reason of a mistake of fact (not law), in good faith believes himself to be bound by law to do it.

Are there examples of acts where a person is not liable due to being bound by law or mistake of fact?

• A soldier fires on a mob under orders from a superior officer, conforming to the law. He commits no offence.
• An officer of a court arrests Z, believing Z to be Y after due inquiry, under court orders. He commits no offence.

When is an act of a Judge not considered an offence?

An act done by a Judge when acting judicially in the exercise of any power given to him by law, or believed by him in good faith to be given by law, is not an offence.

Is an act done under a court’s judgment or order an offence?

No, if it is done while the judgment or order remains in force and is done in good faith believing the court had jurisdiction, even if the court actually had no jurisdiction.

When is an act justified by law or by mistake of fact believed to be justified, not an offence?

Nothing is an offence if it is done by a person who is justified by law, or who in good faith, due to a mistake of fact (not law), believes he is justified by law.

Is there an illustration of an act justified by law or mistake of fact?

A sees Z commit what appears to be murder. A, believing in good faith he can apprehend Z, seizes him. A commits no offence even if Z was acting in self-defence.

Does obtaining licenses relieve occupiers/licensees from obligations under criminal negligence?

No, the grant or renewal of licenses does not relieve occupiers/licensees from obligations implicit in such licenses, as held in Sushil Ansal v. State.

What is the law regarding accidents during lawful acts?

Nothing is an offence if it is done by accident or misfortune, without criminal intent or knowledge, during a lawful act performed lawfully and with proper care and caution.

Is there any example of an accident during a lawful act?

A is working with a hatchet; the head flies off and kills a man. If A used proper caution, he commits no offence.

What are the ingredients needed to claim protection under accidents during lawful acts?

It must be shown that:

• There was no criminal intent or knowledge;
• The act was lawful and done lawfully;
• Proper care and caution were exercised (Atmendra v. State of Karnataka).

What about acts likely to cause harm done without criminal intent but to prevent greater harm?

Such acts are not offences if done in good faith without criminal intent to prevent or avoid greater harm to person or property.

How is harm evaluated in such cases?

It is a question of fact whether the harm prevented or avoided justified the risk.

Are there any illustrations of acts done to prevent greater harm?

• A captain changes course to avoid a boat with many passengers, risking collision with a smaller boat. He is not guilty if done in good faith.
• A pulls down houses during a great fire to prevent its spread, intending to save lives and property. If justified, he is not guilty.

What does harm include?

Harm includes physical injury (Veeda Menezes v. Yusuf Khan).

Is criminal intention important in acts done to prevent harm?

Protection applies if the act was done without criminal intent and in good faith (Common Cause v. Union of India).

Is an act done by a child under seven years of age an offence?

No, nothing done by a child under seven years is an offence.

What about acts done by children between seven and twelve years of age?

If the child has not attained sufficient maturity to judge the nature and consequences of their conduct, it is not an offence.

When is an act done by a person of unsound mind not an offence?

If the person is incapable of knowing the nature of the act or that it is wrong or contrary to law due to unsoundness of mind.

When should the plea of unsoundness of mind ideally be raised?

It should be raised during trial to allow proper evidence and avoid doubts about the genuineness of the defence (Mohd. Anwar v. State (NCT of Delhi)).

What are the principles regarding the defence of insanity?

Legal insanity must be proved; medical insanity is insufficient. Conduct before, during, and after the act is relevant (Prem Singh v. State (NCT of Delhi), Prakash Nayi v. State of Goa).

What if a person commits an act due to intoxication caused against his will?

Such a person is not guilty if, due to intoxication administered without his knowledge or against his will, he is incapable of knowing the nature of the act.

Is voluntary intoxication a defence?

No, voluntary intoxication is not a recognized defence (Chet Ram v. State).

When can the defence of intoxication be availed?

Only if intoxication rendered the person incapable of forming the specific intent required for the crime, and the burden of proof is on the accused (Suraj Jagannath Jadhav v. State of Maharashtra).

How is intoxication treated in offences requiring particular intent or knowledge?

A voluntarily intoxicated person is presumed to have the same knowledge as if sober. Intention must be assessed based on circumstances and degree of intoxication (Paul v. State of Kerala).

Is mere intoxication sufficient to claim defence under law?

No, mere intoxication is insufficient (Chherturam v. State of Chhattisgarh).

Is absence of requisite intention material in murder or culpable homicide cases involving intoxication?

Not if the evidence doesn’t indicate that the offender was intoxicated to the extent of losing intention (Prem Singh v. State (NCT of Delhi)).

When is an act not an offence if done by consent?

If not intended or known to cause death or grievous hurt, it is not an offence when done with the consent (express or implied) of a person above eighteen years.

Is there an illustration of an act done by consent?

A and Z agree to fence for amusement. If A injures Z without foul play, A commits no offence.

What about acts intended for a person’s benefit with their consent?

If done in good faith and without intending death, and with the person’s consent, it is not an offence.

Is there an example of an act done for a person’s benefit with their consent?

A surgeon operates on Z knowing the risk but intending Z’s benefit and with Z’s consent. He commits no offence.

What if the act is done for the benefit of a child or person of unsound mind by or with the consent of a guardian?

It is not an offence if done in good faith, except in cases involving intentional or likely death, grievous hurt, or abetment of offences.

Is there an example of such an act?

A has his child operated for a stone, knowing the risk but aiming to cure the child. He commits no offence.

When is consent invalid under law?

• If given under fear or misconception and the person knows it.
• If given by someone unable to understand due to unsoundness of mind or intoxication.
• If given by a person under twelve years of age.

Are there limits to exceptions based on consent?

Yes, exceptions do not apply to acts which are offences independently of the harm caused (e.g., causing miscarriage).

Is there an example where consent does not protect an act?

Causing miscarriage (except to save life) is an offence, even if consented to.

When is an act done in good faith without consent not an offence?

If done for the person’s benefit when consent was impossible or impractical to obtain, provided it does not involve intentional death, grievous hurt (except to prevent death), or abetment of offences.

Are there any examples of acts done in good faith for a person’s benefit without consent?

• A surgeon trepans Z while Z is insensible, intending Z’s benefit.
• A fires at a tiger carrying Z, unintentionally mortally wounding Z, in good faith.
• A operates on a child after an accident without time to get guardian’s consent.
• A drops a child from a burning house into a blanket below, causing death but intending the child’s benefit.

What does not count as benefit?

Mere pecuniary (financial) benefit is not considered a benefit.

Is a communication made in good faith an offence?

No, if made for the person’s benefit, it is not an offence even if it causes harm.

Is there any example of communication made in good faith?

A surgeon tells a patient they are unlikely to live. The patient dies from shock. A commits no offence.

Is an act done under threat an offence?

Except for murder and offences against the State punishable with death, it is not an offence if done under threat of instant death.

Are there exceptions to protection under threat?

• A person voluntarily joining dacoits cannot claim protection.
• A person forced by dacoits under threat of death can claim protection.

When is slight harm not considered an offence?

If the harm is so slight that no person of ordinary sense and temper would complain.

Therefore, the General Exceptions under the Bharatiya Nyaya Sanhita, 2023, continue to uphold the foundational idea that context, intention, and circumstance are essential in determining criminal responsibility. By codifying these protections, the BNS balances the strict application of law with the demands of equity and societal ethics.

 Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India, Hon’ble High Court of Delhi and Hon’ble High Court of Jammu & Kashmir and Ladakh. He tweets @muneebmalikrash.