For a crime to be constituted two things are very important, namely, a guilty mind and a voluntary criminal act in pursuance of the guilty mind. Various defences which can be pleaded by a person, accused of an offence under Indian Penal Code or any special or local law are provided in Chapter IV of Indian Penal Code. Section 76 to 106 of Chapter IV of Indian Penal Code deals with exceptions or defences which can be pleaded by the accused to absolve his/her criminal liability. Broadly, there are seven major categories which are as follows:
(1) Mistake of fact (Sections 76,79)
(2) Judicial Acts (Sections 77, 78)
(3) Absence of criminal intent (Sections 81-86 and Sections 92-94)
(5) Consent (Section 87,90)
(6) Trifling Acts (Section 95)
(7) Private defence to person or property (Sections 96-106).
Section 76 States “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, soldier, fires on a crowd on order of his superior officer, in conformism with the directions of the law. A has committed no offence.
MEANING OF MISTAKE
There can be two types of mistake:
i) Mistake of Law
ii) Mistake of Facts
Ignorantia facti excusat, ignorantia legis neminem excusat is a maxim in criminal law. This means ‘ignorance of fact is an excuse, ignorance of law is no excuse. When a person does any act by misunderstanding some fact negating an element of crime, there arises a mistake of fact.
A takes his German Shepherd to a park in order to let his dog play with other dogs. A lost sight of his dog for a few minutes. After a search of 5 hrs he finally found his dog and was returning home. He suddenly saw a mark on his dog’s neck and realized that he had brought someone else’s dog considering his dog as they looked similar. Here, A can take the defence of mistake of fact and is not liable.
A and B are friends and are playing videogames at A’s house. After playing for a n hour B decides to leave and takes A’s video game considering it has his video game. A repeatedly tells B that the video game is not his. Regardless of A saying that, B takes the video game. Here, the defence of mistake of law cannot be pleaded by B.
A being the officer of the court is ordered by the court to arrest X. A arrests Z believing him to be X. The defence of mistake of fact can be availed here by A.
MISTAKE OF FACT
Ignorance of fact is an excuse as it prevents the accused from establishing the required mens rea. This can be clearly understood from this example ahead. A before going to temple fired his gun and left it empty. But during his absence, someone else used his gun for shooting and kept the gun loaded in the place where A had left it. A returned from the temple and while taking his gun accidently touched the trigger which led to firing and the bullet killed his wife who was in the room. Here, A had reasonable ground to believe that the gun was not loaded. Hence, he can plead for mistake of fact here.
If a person has done some wrongful act by mistake of fact but with a good intention and honest belief that he was bound to do, he may plead not guilty. For example, A, a 17 years old boy went to buy liquor from the shop. B, the shopkeeper believing A to be above 18 years old, sold him liquor. A policeman caught A and accused B of selling liquor to a minor, which is punishable. Here, B can take plea of mistake of fact because he honestly believed A to be above 18 years old. But if a policeman catches B with a rifle and B does not have valid license to possess a rifle. B cannot plead mistake of fact because it is a mistake of law. One is under assumption to know the law of the land.
The word good faith in case of mistake of fact means an act done with proper care and attention. One cannot take a defence of good faith when he enters a one-way road from opposite side as a reasonable man can easily see the signboard present.
In Keso Sahu and Ors. v. Saligram Shah the court held that the accused showed that he brought the cart and Cartman to the police station in good faith and belief that the offence of smuggling rice was being carried on in the plaintiff’s house. The said suspicion was proved to be wrong. The defence of mistake of fact is available to the accused as he did the act in good faith and believing it to be justified by law.
In Dakhi Singh v. The State, the accused fired on an innocent person misidentifying him to be a thief, while he believed that he is bound to detain the thief. According to the officer’s finding, he was not in the position to apprehend them, fired at him. Here, the defence of mistake of fact cannot be availed by him as the act done by him was not justified.
There are a couple of exceptions to the maxim ‘ignorantia facti doth excuse’. Firstly, no person can plead ignorance of fact, when accountable inquiry would have prompted the true facts. For example, when a person remarries on honest belief that his previous marriage has been dissolved by a decree but the decree has not been granted, he cannot plead mistake of fact and will be guilty of bigamy. Also, mistake of fact cannot be accepted as a plea if the said act is penalized by a statute. For example, one cannot sell adulterated food by pleading ignorance of fact as the same has been punishable under Prevention of Food Adulteration Act, 1954.
In State of Orissa v. Bhagaban Barik, the accused and the deceased had tense relations over grazing of cattle. The deceased had gone to the pond to get his bell metal utensils on the day the incident took place. He was blown with a lathi on his head. The defence plea was that the utensils of the accused had been stolen and that he was keeping a watch for the thief. It was held that there was complete lack of good faith on part of the accused, as the circumstances proved that he had no occasion to believe that he was striking a thief.
In Jain Exports Pvt. Ltd. V. Union of India, an experienced export house well-versed with the policies and procedures of export and import of goods, pleaded that they, in good faith, presumed that non-edible variety of coconut oil was not a conveyed item and could consequently, be imported under Open General License. The plea was rejected by the court and held that it was not a bona fide act.
Section 79 reads as “An 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 himself 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 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 though it may turn out that Z was acting in self-defence.
In Gopalia Kallaiya a police officer arrested some other person believing in good faith that he was the person to be arrested. The arrested person brought an action of wrongful confinement against the police officer. But it was held that the police officer did so in good faith and can plead mistake of fact as a defence.
In the case of Bhawoo Jivaji v. Mulli Dayal, a policeman saw the complainant carrying under his arm three pieces of cloth. Under suspicion that the clothes have been stolen, he questioned the complainant but was not satisfied by his answers. The complainant also refused to let the policeman inspect the clothes leading to his arrest. At later stage it was found that the clothes were not stolen. It was held that the policeman was not liable as it was a mistake of fact and the act was done in good faith.
Section 76 also protects acts done in moments of delusion. In Chirangi v. State, the accused in a moment of delusion believed that his only son was a tiger and further assailed him with
axe thinking that tiger is a dangerous animal and his action was justified. The accused was granted the defence of mistake of fact and was held not liable.
In a case A was put on trial for stealing the umbrella belonging to B. A in his defence pleaded that he was intoxicated at the time of taking the umbrella and wrongly believed that the umbrella was his own. The defence is tenable because A mistook in good faith with another’s umbrella to be his own.
MISTAKE OF LAW
The principal that ‘ignorance of law is no excuse’ implies that a wrongdoer cannot plead ignorance of law as a defence to avoid any liability. This principal base itself on the ground presuming that everybody knows the law. Hence, a mistake of law even if done in good faith cannot operate as exonerating factor unlike mistake of fact.
In The King v. Tustipada Mandal, it was said that “Mistake of law means mistake as to the existence or otherwise of any law on a particular subject as well as mistake as to what law is.” The maxim ignorantia juris non excusat forms the base of Section 76. This rule is based on another rule of evidence that “every man is presumed to know the law”.
Mr. S at a crossing did not stop his car at a red signal. Traffic policemen charged him with an offence of breaking the traffic rules. Here the defence that Mr. S was not aware of such laws cannot be allowed as it is a mistake of law.
In a case where the accused and two private persons stopped the carriage in which the complainant was going home with a bundle of cloth and took him to the police station on the mere suspicion that the complainant was removing cloth in breach of the Control Order, it was held that accused was not entitled to the defence under Section 79 of the Code because he did not commit the mistake in good faith but took the complainant to the police station on a mere suspicion without making reasonable efforts to ascertain the truth.
However, there are certain limited circumstances where mistake of law can be used as a defence:
i) When the law has not been published;
ii) When the defendant relied upon a law or statute that was later overturned or deemed unconstitutional;
iii) When the defendant relied upon a judicial decision that was later overruled; or
iv) When the defendant relied upon an interpretation by an applicable official.
In the case of The State of Maharashtra v. Mayer Hans George, the defendant, a German smuggler on 27.11.1962 boarded a plane in Zurich with 34 Kgs of gold concealed with him to be delivered in Manila. The plane arrived in Bombay on 28th Nov as a part of layover in Bombay. The Custom Authorities examined the manifest of the aircraft to see if any gold was committed by any passenger, and did not find any entry so, they entered the plane, searched the defendant, recovered the gold and charged him under Sections 8(1) and 23(1-A) of the Foreign Exchange Regulation Act read with a notification dated 8th Nov. 1962 of the Reserve Bank of India. Stating that ignorance of law is not an excuse, the defendant was convicted. It was also said that notification of the Reserve Bank of India is law and is deemed to have been brought to the notice of the people concerned as soon as it gets published in the Official Gazette. The Court in this case also cited the case of Lim Chin Aik v. Queen decided by the privy council in this regard.
In Mohammad Ali v. Sri Ram Swarup & Ors. and in Narantakath v. Mammu, the court concluded that ‘mistake of law, even in good faith, is not a defence’.
In Grant v. Borg, the accused was charged under the Immigration Act 1971, for staying beyond the time limit given by his leave. He asserted that he made requests to extend his stay but the same was rejected. He was held liable as it was a mistake of law.
In Charan Das a constable working for the National Volunteer Corps fired a gun and shot a woman inside the tent inside which gambling was going on and no violent mob was there, on orders of a superior officer. The constable was held guilty of murder as following of order of a superior which is against law cannot be pleaded as a defence.
Generally, the mistake of fact can be pleaded as a defence to escape the various liabilities, provided the act should be honest, reasonable and done in good faith. Whereas, the mistake of law cannot be pleaded as a defence to avoid liabilities. It is presumed that all the individuals except minor, lunatics and insane are well versed with the law. The Law Commission of India has expressed its agreement with the principles of immunity as provided in Sections 76 & 79 of the Indian Penal Code. For the better clarity, the Commission recommends to regroup first part of both the sections together and second part of both the sections together.
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By Aditya Singh, Law Student