Notes section- 76 and 79

Chapter IV of the Indian Penal Code deals with the ‘General Exceptions’ of IPC. This
chapter spanning from Section 76 to 106 exempts the criminal liability imposed on
the certain individual subject to their acts being covered under any one of the
general exceptions. In other words a person who has committed an offence may due
to the application of general exceptions escape liability.
General exceptions deal with circumstances which, extinguish mens rea. The wrong
does who committed actes ress without requisite mess rea may escape liability
because the act falls in general exceptions, Section 6 of Indian Penal Code provides
that definitions in the Code are to be understood subject to exceptions.

There are two broad categories under which the exceptions can be categorized and

amounting to an offence

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those are – excusable and justifiable exceptions. The first is when the law excuses

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certain offenders, even though their act constitutes a crime. The latter category is
where the act justifiable

the exception to escape liability.

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under the circumstances they were committed and thereby are supplemented with

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This chapter applies to the offences not only defined in Indian Penal Code but also
the offences defined by any local or special law. Section 40 of the Code defines
‘offence’ as denoting a thing punishbale under the Indian Penal Code as well as
special or local law.

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Burden of proving General Exceptions- As a general rule the burden of proving the

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guilt is on the prosecution2Gbut
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any of the general exceptions
the
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is on the accused. In K. M. Nanawati v. State af
Maharashtra, Supreme Court observed that if an accused pleads exceptions

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contained in Indian Penal Code then there is a presumption against him and the
burden to rebut that presumption is on him , however the burden is not as strict as it
is in case of prosecution to prove the guilt.

Mistake as a defence under IPC1860

Sections 76 and 79 incorporates the law relating to mistake

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criminal liability.
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Section 76 excuses a person from criminal liability who is bound by law to do
something and does it, or who in good faith, due to a mistake of fact believes that he
is bound by law and so does it. However, Section 79 exempts a person who owing to
a mistake of fact and not a mistake of law, believes that his actions are justified by
law.

Section 76 reads as under

Act done by a person bound, or by mistake of fact believing himself bound, by

law
 Nothing is an offence which is done by a 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.

Illustrations
(a) 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.
(b) A, an officer of a Court of Justice, being ordered by that Court to arrest Y, and
after due enquiry, believing Z to be Y, arrests Z. A has committed no offence.

The section is based on the principle of ignorantia facit doth excusat, ignorantia juris

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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

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convenience and out of necessity. Mistake negatives the existence of a particular

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‘intent’ which the penal law requires in making a person liable.

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-Section 76 excuses a person from criminal liability who is bound by law to do

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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.

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In Queen v. Tolson, court held that belief in good faith about the existence of fact

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which do not exist would make the act innocent in law. The court held that Mrs.
Tolson acted in bona

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offence of bigamy.
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fide mistake
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Essential ingredients: Following are the essential ingredients:

1. Person is bound by law; or

2. In good faith he believes himself to be bound by law
3. Such belief is by reason of mistake of fact and not by mistake of law

Act done by a person justified, or by mistake of fact believing 6N1S

himself justified
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by law. Section 79 provides that nothing is an offence which is done by any Person
who
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mistake of law in good faith, believes himself to be justified by law, in doing it.

Essential ingredients: Following are the essential ingredients:

1. Person is justified by law or

2. In good faith he believes himself to be justified by jaw
3. 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’, 1n the
exercise, to the best of his judgment, exerted in good faith, of the power which the
 law gives toall person of apprehending committed 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.

In State o f Orissa v Ram Bahadur Thapa the accused, in a night mistook a living
human being as a ghost and killed him. The court allowed the defence of section 79
to the accused.

It is to be noted that Section 79 comes into play only when there is real or supposed
legal justification for a person in doing the act complained of and that the same was
done with an intention of advancing the law to the best of his judgment exerted in
good faith.

Good faith: One of the essential requirements to get protection under Section 76
and 79 is that the action must be done in 'good faith’. Section 52 of Indian Penal

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Code 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.

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