General Exception contained in Chapter 3, Section 14-44 extinguish the criminal liability. These are rules of evidence carrying conclusive or rebuttable presumptions. They deal with circumstances which extinguish mens rea. The wrongdoers who committed actus reus with requisite mens rea may escape liability because the act falls in general exceptions. Section 3(1) of Bhartiya Nyay Sanhita provides that definitions in the BNS are to be understood subject to exceptions. Framers of the Sanhita have put all general exceptions in one place and dispensed with the necessity of repeating the general exceptions in every definition or penal provision.
This chapter applies to the offences not only defined in Bharatiya Nyay Sanhita but also the offences defined by any local or special law. Section 2(24) of the Sanhita defines 'offence' as denoting a thing punishable under the Bhartiya Nyay Sanhita as well as special or local law. Section 2(24) read with Section 3(1) clearly shows that general exceptions are applicable not only to the offences mentioned in Bharatiya Nyaya Sanhita but also to penal provisions contained in other special or local laws.
Categories of exceptions: General Exceptions can be broadly categorized into following categories:-
Excusable : Sections 14, 17, 18, 20, 21, 22, 23 and 24
Justifiable: Sections 15, 16, 19, 25, 26, 27, 30, 31, 32, 33, 34-44
In the first category i.e. excusable, the necessary mens rea for the offence is lacking while in second category i.e. justifiable the circumstances under which the offence is committed furnish legal justification for its commission. In first category, the act is excused for want of necessity of guilty mind. In second category the act is justified on account of some other considerations.
Burden of proof
As a general rule the burden to prove the guilt of the accused is on the prosecution. However, in cases of General Exception this rule is reversed. Section 108 of Bhartiya Sakshya Adhiniyam provides that if an accuse person claims the benefit of exceptions, the burden of proving his plea that his case falls under the general exception lied upon the accused.
In K.M. Nanawati v. State of Maharashtra, AIR 1962 SC 605 Supreme Court observed that if an accused pleads exceptions contained in Indian Penal Code (Now BNS) then there is a presumption against him and the burden to rebut that presumption is on him. Although the burden of proof in respect of proving the existence of circumstances under Chapter IV of the Code (Now Chapter III of BNS) is on the accused, the standard of proof required is not the same as that of prosecution. Prosecution is required to prove the elements of crime beyond reasonable doubt. But in case of defence, the accused need not prove the case under Chapter IV of the Code beyond reasonable doubt.
Supreme Court in Ranjitham v. Basavraj, AIR 2012 SC 1856 held that the accused discharges his burden as soon as he proves the preponderance of probability of the existence of the circumstances bringing his case within the general exceptions.
In T.N. Lakshmaiah v. State of Karnataka, (2002) 1 SCC 219 Supreme Court held that standard of proof is not the same as expected from the prosecution. It is enough that the accused maes his case in any of the general exception by standard of preponderance of probabilities.
Mistake of Fact
Section 14 and 17 incorporates the law relating to mistake as an exception to criminal liability. They are based on the principle of ignorantia facit doth excusat, ignorantia juris non excusat i.e. ignorance of fact is an excuse but ignorance of law is not an excuse. Everyone is presumed to know the law. It is a legal fiction created for sake of convenience and out of necessity.
The exemption on the basis of mistake of fact or ignorance of fact is based on the premise that the man who is mistaken or ignorant about the existence of fact cannot form necessary mens rea to constitute an offence. Mistake negatives the existence of a particular 'intent' which the penal law requires in making a person liable. Mistake is an erroneous mental condition induced by ignorance, misapprehenstion or misundestanding of truth. Ignorance of fact must be ignorance in respect of material fact i.e. fact which is essential to constitute an offence.
Mistake of law
Mistake or ignorance of law is no excuse. Mistake of law means mistake or ignorance as to whether there is law regarding a certain subject or a mistake or ignorance as to provisions of law. Mistake of law is not allowed to be pleaded as a defence. It applies even to a foreigner. If such kind of defence is allowed to be pleaded then everyone will advance this defence and it will be very difficult to prove whether the person was really ignorant of law or not.
Section 14 excuses a person from criminal liability who is bound by law to do something and has done it, or who in good faith, owing to a mistake of fact, believes that he is bound by law to do something and does it. Section 17 absolves a person, who believes, by reason of mistake of fact and not be reason of mistake of law, in good faith, that his act would be justified by law.
In Queen v. Tolson, (1889) 23 QBD 168 court held that belief in good faith about the existence of fact which do not exist would make act innocent in law. In Tolson's case, Mrs. Tolson was charged with bigamy. It was argued on behalf of Mrs. Tolson that she believed in good faith and on reasonable grounds that her husband had died prior to her second marriage. After the husband of Mrs. Tolson went missing she made several inquires about whereabouts of her husband. She was led to believe that her husband was dead. This fact was also known to the second husband of Mrs. Tolson and the marriage ceremoney was not a concealed one. The court held that Mrs. Tolson acted in bona fide mistake of fact and hence she was not liable for the offence of bigamy.
Act done by a person bound, or by mistake of fact believing himself bound by law
Section 14 provides that nothing is an offence which is done by person who is, or 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.
Essential ingredients of Section 14
Following are the essential ingredients:
- Person is bound by law; or
- In good faith he believes himself to be bound by law.
- Such belief is by reason of mistake of fact and not by mistake of law.
For Example, '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. Arrest under a warrant issued by a court is an act protected by this section. So when a person executed the warrant of arrest by a bona fide mistake and arrested the wrong person, he will get the benefit of this section. Private persons are bound by law to assist the police under Section 31 of Bhartiya Nagrik Suraksha Sanhita and are also protected under Section 14 of BNS. This section contemplates two types of situations:
(1) where a person is bound by law to do an act and
(2) Where a person, by mistake of fact in good faith, believes himself to be bound by law to do an act.
Act done by a person justified, or by mistake of fact believing himself justified by law
Section 17 provides that nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justifed by law, in doing it.
Essential ingredients of Section 17
Following are the essential ingredients:
- Person is justified by law; or
- In good faith he believes himself to be justified by law
- Such belief is by reason of mistake of fact and not by mistake of law.
For example, 'A' sees 'Z' commit what appears to 'A' to be a murder. 'A', in the exercise, to be best of his judgement, exerted in good faith, of the power which the law gives to all persons of apprehending murderers in the act, seizes 'Z', in order to bring 'Z' before the proper authorities. A has committed no offence, it may turn out that 'Z' was acting in self defence.
The expression 'justified by law' means 'not prohibited by law'. This section contemplates two types of situations:
(1) Where a person is justified by law to do an act and
(2) where a person, by mistake of fact in good faith, believes himself to be justified by law to do an act.
Supreme Court in Pitchai v. State by Inspector of police, Vadamadurai, (2004) 13 SCC 579 held that Section 79 (Now Section 17 of BNS) comes into play only when there is real or supposed legal justification for a person in doing the act complained of an that the same was done with an intention of advancing the law to the best of his judgement exerted in good faith.
In Raj Kapoor v. Laxman (1980) 2 SCC 175 prosecution was launched against the producer of the film 'Satyam Shivam Sundaram'. The Censor Board gave the certificate to the film for exhibition. That certificate gave the legal right to exhibit the film in public. The court held that producers believed themselves to be justified by law to exhibit the film.
Good faith: One of the essential requirements to get protection under Section 14 and 17 is that the action must be done in 'good faith'. Section 2(11) of Bhartiya Nyaya Sanhita defines 'good faith'. It provides that nothing is said to be done or believed in 'Good faith' which is done or believed without due care and attention. Therefore, a person is expected to act with due care and caution. Due care denotes degree of reasonableness in the care to be exercised. "Good faith" is always a question of fact.
Sections 14 and 17 are complimentary to each other. In Section 14 there is an element of legal compulsion. In this case the person is bound by law to do an act and he does it or the person, under mistake of fact, in good faith believes himself to be bound by law to do and act he does it. While in Section 17 there is element of legal justification. In this case the person is justified by law to do an act and he does the act or under mistake of fact believes himself to be justified by law to do and act and does it.
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