Sections 76 and 79 of Chapter-IV (General Exceptions) of the Indian Penal Code, 1860 explain the provisions about “Mistake of Fact” and “Mistake of Law”. These provisions are based upon the common law maxim “Iqnorantia facti doth excusat; Ignorantia juris non excusat.” (Ignorance of fact is an excuse, but ignorance of law is not excused.)
Mistake of fact is a good defence in criminal law, which is explained in two Sections 76 and 79. Both of these Sections are included in General Exceptions (Chapter-IV).
An unconscious ignorance or forgetfulness of a fact, past or present, material to the contract, or a belief in the present existence of a thing material to the contract, which does not exist; some intentional act, omission, or error arising from ignorance, surprise, imposition, or misplaced confidence; in a legal sense, the doing of an act under an erroneous conviction, which act, but for such conviction would not have been done.
Mistake of fact:
A mistake which takes place when some fact which really exists is unknown; or some fact is supposed to exist which really does not exist.
Mistake of law:
A mistake of law occurs when a person having full knowledge of facts comes to an erroneous conclusion as to their legal effect.
Sec. 76. 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.
(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.
1. “Mistake of fact and not by reason of a mistake of law”:
This phrase in the Section means that a mistake of fact is excusable, but a mistake of law is not excusable. It is the duty of every citizen of the land to know the law of the land, and to behave accordingly. If a person says, “I do not know the law and due to not knowing the law, I did the offence.” It is not excusable.
However, if a person did a wrongful act by a mistake of fact with a good faith and honest belief that he was bound to do, he may be excused. It is presumed that everyone knows the law of the land.
“Ignorance of the municipal law of the Kingdom, or of the penalty thereby inflicted upon offenders, does not excuse any, that is of the age of discretion and compos mentis, from the penalty of the breach of it; because every person of the age of discretion-and compos mentis is bound to know the law and presumed so to do.”
2. “Good faith”:
The words “good faith” means “the act done with due care and attention”. They also include the genuine belief of the person. The burden of proof lies upon the person who wants to take the shelter of good faith.
3. “In good faith believes him to be bound by law”:
This phrase means that the accused should be in good faith and he must be under confidence that he was bound by law to do that act.
This Section is mainly intended to safeguard the subordinates, who are compelled to follow the superior’s orders, illustrations (a) and (b) appended to Section 76 also reveal the same. This Section does not give protection to those people who act against the law, i.e., mistake of law.
State of West Bengal vs. Shiv Mangal Singh (1981 CrLJ 1683)
While the police were patrolling in the outskirts of the town in the night, some armed people attacked them, and an Assistant Commissioner of Police was badly injured.
The Deputy Commissioner of Police ordered firing against the unknown persons. Two persons were died. The Court held that the police were protected under Section 76, being they were bound to protect law and order.
It does not mean that every superior officer’s firing order is protected by Sec. 76 or 79. The order must be given in good faith, and to protect the peace, law and order.
The subordinate officers should feel that the order given is given in good faith. Torturing the innocent persons, under trial prisoners, lock-up deaths, etc., is not protected under Sec. 76.
Recently a police tour went into forest nearby Adilabad District searching Naxalites. It was alleged that the superior officer of searching party ordered the police constable to squeeze the milk from a Tribal woman to know whereabouts of the Naxalites. It was criticized by the Press and Assembly. This kind of superior orders is not protected under Sec. 76.
Section 76 IPC is also applicable to private persons, who help the police or other officers. Sec. 42 of Cr.P.C. empowers the private persons to arrest a person suspected to have committed non-bailable offence, and to apprehend such person and to handover him to the nearest police station.
A, an officer of a Court of Justice, being ordered by that Court to arrest Y, and without conducting due enquiry, believing Z to be Y, arrests Z. Is A liable? (1205, Mar. 92, N.U.) (1205, Sept. 93, N.U.)
The Illustration (b) appended to Section 76 shows that 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.
Here A has committed no offence. But in the above given problem, A, without conducting the enquiry arrested Z. Hence in this problem, A is liable, and not protected under Sec. 76.
S, a soldier, fires on a mob by the order of his superior officer and kills one of them. Discuss the liability of S. (Dec. 90, O.U.) (1205, Sept. 93, N.U.)
This problem is identical with the illustration (a) of Section 76. Under such circumstances, and in the given problem, the soldier-S is not held liable, because he fired under the superior officer’s orders and in good faith. The offence of this problem is protected by Sec. 76 (Illustration (a).
A, a member of the crew of a ship, under the orders of the Captain, throws 16 male passengers into sea in order to save the ship and crew from being sunk. Explain what offence, if any, has A committed in the above case. (655, Anl. 93, A.U.)
A is held liable. The problem is similar to those facts in the case Charan Das vs. State (52 PLR 331), in which the accused was held liable.
Brief facts of that case are:
The accused, who was a constable of the National Volunteer Corps fired a gun in obedience to an order by a Havildar and killed a person.
The evidence proved that the constable knew that the deceased was innocent and was inside the tent where to his knowledge no offence was committed, and no disturbing mob was collected, and where there was no such other allegations, except that gambling might be going on.
The Court held that the Constable was not protected under Sections 76 and 79 of the Code and was liable for murder.
The Court opined that the Soldier should obey the instructions of his officer, but not blindly. He should exercise his own judgment in good faith, under the circumstances appeared before him.
Gopalia Kaliaiay vs. State (1923) 26 Bom)
Brief Facts: A, a police officer, of the surrounding district, was ordered to arrest a wrong-doer. A warrant was issued on the name of wrong-doer. The police officer made reasonable inquiries arrested the complainant, believing in good faith he was the wrong-doer.
The complainant filed a case against the officer alleging that he was wrongfully confined. The Court held that the police officer was protected under Sec. 76.
Sec. 79. Act done by a person justified or by mistake of fact believing himself justified by law:
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 him to be justified by law, in doing it.
A sees Z commit what appears to A to be a murder. A, in the exercise to the best of his judgment exerted in good faith, of the power which the law gives to all persons of apprehending murderers in the fact, seizes Z, in order to bring Z before the proper authorities. A has committed no offence though it may turn out that Z was acting in self- defence.
Distinction between Ss. 76 and 79: There is a slight difference between these two Sections. In Section 76, the person is bound by law; whereas in Section 79, the person is justified by law Under Sec. 76, the person is bound by a legal obligation, whereas under Sec. 79, the person is supposed to have legal justification. Both the Sections require good faith
State of Orissa vs. Khora Ghasi (1978 CrLJ 1305)
The accused-an agriculturist was guarding his maize field lying on a Manche (specially constructed in the agricultural fields). He observed that one animal was moving in his field. He cried. Inspite of his crying, he observed that some animal was moving in the field and coming towards him.
He fired his gun. In fact, it was not an animal, but a person, who was hiding there. The Court held that the accused was protected under Sec. 79 and also 80 (Accident).
Keso Sahu vs. Saligram (1977 CrLJ 1725 Orissa)
The accused was helping the check-post authorities. He stopped a bullock-cart, suspecting it carrying smuggled rice. The authorities came and inspected the bullock cart and found nothing about smuggling.
They permitted the complainant to go away. The complaint filed criminal proceeding alleging that he was wrongfully confined. The Court held that the accused was protected under Sec. 79.
Emperor vs. Jagmohan Thukral (AIR 1947 All 99)
Brief Facts: The accused was passing through a forest in a night. He saw the eyes of an animal besides the bushes and plants and fired with his gun. Unfortunately two military officers were wounded with that gun fire.
There was a military camp in the forest in that area. The accused did not know about the military camp. He was tried for the offence under Sec. 307. The Court held that the accused was protected under Sec. 79.
Ram Bahadur vs. State of Orissa (AIR 1960 Ori. 161)
The accused was a Nepali, and was residing with his master near the Aerodrum. He was new to that place. That place was famous for ghosts particularly on Tuesday night. He and his master were anxious to see ghosts and reached the nearby so-called place of ghosts.
Some neighbourers also accompanied with them with curiosity. They saw some lights and felt that those were ghosts. Immediately the accused rushed to chase the ghosts and attacked them. In fact those were not ghosts, but those were the men carrying lights. Those men were wounded. The accused was acquitted and given benefit under Sec. 79.
In R. vs. Tolson, Mrs. Tolson waited for her husband Mr. Tolson for seven years, and then married another person saying about her first marriage. Absence of seven years without informing to his wife by Mr. Tolson is one of the requirements of Bigamy offence.
Information about the first marriage to second husband is another requirement. Both were performed by Mrs. Tolson. Hence there is no mistake of law. It is only of mistake of fact.
In R. vs. Wheat and Stock, an uneducated person signed on the papers of divorce and handed over them to his advocate, and thought that he got divorce from his first wife, and then married another woman.
He did not know about the legal position. Mere filing divorce petition is not sufficient. The competent Court must sanction the divorce after due enquiry with the parties. It takes time. Hence it was a “Mistake of Law”.
In R. vs. Prince, a mixed question of fact and law is treated as a question of fact, if the accused was misleaded into an error of fact on account of an error of law. In that case, the accused eloped a minor girl under a mis-belief that she was a major and contended that it was a mistake of fact. The Court held that the accused’s act had a clear ‘mens rea’, and would be treated as ‘Mistake of Law’ and punished him for kidnapping.
State of Orissa vs. Bhagbhan Barik (1987) 2 SCC 498
The accused had beaten the deceased very strongly. He pleaded that he believed the deceased as a thief in good faith and also contended that he would be protected under Sec. 79 and under the right of private defence. The Prosecution contended that the incident took place at a tank.
There was a long distance between the place of incidence and the accused’s house. No property of the accused was stolen. Hence he could not plea the right of private defence of property.
The Court did not believe the accused’s version, and imposed punishment under Sec. 304 Part-II for three years rigorous imprisonment.
Exemption to the Judges and Judicial Officers
There is a separate statute “the Judicial Officers Protection Act, 1850” giving protection to the judicial officers while they are acting judicially. Besides this Act, Section 77 IPC provides exemption to the Judges from criminal process and Section 78 IPC provides exemptions to the persons whose act is in pursuance to the judgment or order of the Court. These two Sections run:—
Sec. 77. Act of Judge when acting judicially:
Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law.
Sec. 78. Act done pursuant to the judgment or order of Court:
Nothing which is done in pursuance of, or which is warranted by the judgment or order of, a Court of Justice, if done whilst such judgment or order remains in force, is an offence, notwithstanding the Court may have had no jurisdiction to pass such judgment or order, provided the person doing the act in good faith believes that the Court had such jurisdiction.