CHAPTER IV.

GENERAL EXCEPTIONS.

For commentary on this chapter, see Part II., Chapter III., and the special references appended to the following sections.

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

76. 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 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 inquiry, believing Z to be Y, arrests Z. A has committed no offence.

For commentary upon the cases in which a person is bound by law under s. 76, or justified by law under s. 79 in doing certain acts, see Part II., Chapter III., §§ 88-131, 152–167.

For Mistake of Fact, see §§ 132–136.

For Mistake of Law, see §§ 137–139.

77. Nothing is an offence which is done by a Judge, when acting judicially in the exercise

when acting judi

Act of Judge of any power which is, or which in good faith he believes to be given to him by law.

cially.

For commentary on s. 77, see Part II., §§ 140--149.

Act done pursuant to the judgment or order of a Court of Justice.

78. 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.

For commentary on s. 78, see Part II., §§ 150, 151.

79. 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 justified by law in doing it.

Act done by a person justified, or by mistake of fact believing himself justified by law.

Illustration.

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. (See Bhawoo Jivaji v. Mulji Dyal, 12 Bom., 377.) For commentary on s. 79, see note to s. 76.

80. Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge, in the doing of a lawful act in a lawful manner, by lawful means, and with proper care and caution.

Accident in the doing of a lawful

act.

Illustration.

A is at work with a hatchet; the head flies off and kills a man who is standing by. Here, if there was no want of proper caution on the part of A, his act is excusable and not an offence.

For commentary on s. 80, see Part II., §§ 168–170.

Act cause harm, but done without

81. Nothing is an offence merely by reason of its being done with the knowledge that it likely to is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing, or avoiding, other harm to person or property.

a

criminal intent and to prevent other harm.

Explanation. It is a question of fact in such a case, whether the harm to be prevented, or avoided, was of such a nature, and so imminent, as to justify, or excuse, the risk of doing the act, with the knowledge that it was likely to cause harm.

Illustrations.

(a) A, the captain of a steam vessel, suddenly, and without any fault or negligence on his part, finds himself in such a position that, before he can stop his vessel, he must inevitably run down a boat B, with 20 or 30 passengers on board, unless he changes the course of his vessel, and that, by changing his course, he must incur risk of running down a boat C, with only 2 passengers on board, which he may possibly clear. Here, if A alters his course without any intention to run down the boat C, and in good faith for the purpose of avoiding the danger to the passengers in the boat B, he is not guilty of an offence,

though he may run down the boat C, by doing an act which he knew was likely to cause that effect, if it be found as a matter of fact that the danger which he intended to avoid was such as to excuse him in incurring the risk of running down the boat C.

(b) A, in a great fire, pulls down houses in order to prevent the conflagration from spreading. He does this with the intention, in good faith, of saving human life or property. Here, if it be found that the harm to be prevented was of such a nature and so imminent as to excuse A's act, A is not guilty of the offence. (See Reg. v. Boslan, 17 Bom., 626.)

For commentary on s. 81, see Part II., §§ 171-173.

Act of a child under 7 years of

age.

above 7 and under

82. Nothing is an offence which is done by a child under seven years of age.

83. Nothing is an offence which is done Act of a child by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.

12 years of age, who has not sufficient maturity of understanding.

For commentary on ss. 82, 83, see Part II., § 174.

of unsound mind.

84. Nothing is an offence which is done by a person who, at the time of doing it, by reason Act of a person of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. For commentary on s. 84, see Part II., §§ 175-199.

85. Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law, provided that the thing which intoxicated him was administered to him without his knowledge

Act of a person incapable of judgment by reason of intoxication caused against his will.

or against his will.

Offence requiring a particular intent or knowledge committed by one who is intoxicated.

86. In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will.

For commentary on ss. 85, 86, see Part II., §§ 200, 201.

87.

Act not intended and not known to be likely to cause death or grievous hurt, done by consent.

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, 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.

Illustration.

A and Z agree to fence with each other for amusement. This agreement implies the consent of each to suffer any harm which, in the course of such fencing, may be caused without foul play; and if A, while playing fairly, hurts Z, A commits no offence.

For commentary on the doctrine of consent, as stated in ss. 87-92 of the Code, see Part II., §§ 202-209, and the special references appended to the following sections.

Act not intended

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.

to cause death, done by consent in good faith for the benefit of 2 person.

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. For commentary on ss. 88, 91, see Part II., § 205.

Act done in good faith for the benefit of a child or person of unsound

89. 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 mind, by or by 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: Provided

consent of guar

dian.

Provisoes.

First. That this exception shall not extend to 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 infirmity;

Thirdly. That this exception shall not extend to the voluntary causing 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.

Illustration.

A, in good faith, for his child's benefit, without his child's consent, has his child cut for the stone by a surgeon, knowing it to be likely that the operation will cause the child's death, but not intending to cause the child's death. A is within the exception, inasmuch as his object was the cure of the child.

For commentary on s. 89, see Part II., § 208.

Consent known

to be given under

90. A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception-Or,

fear or misconcep tion.

Consent of a child or person of unsound mind.

If the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or, unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.

For commentary on s. 90, see Part II., §§ 206, 207.

Acts which are offences independently of harm

caused to the per

son consenting, are not within the ex

ceptions in sections

87, 88, and 89.

91. The exceptions in sections 87, 88, and 89 do not extend to acts which are offences independently of any harm which they may cause, or be intended to cause, or be known to be likely to cause, to the person giving the consent, or on whose behalf the consent is given.