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CRIMINAL LAW I
Project on:
Submitted to:
Asst. Prof. Ms. Suman Dash Bhattamishra
Submitted by: Ankita Sen. (2013/BBA.LL.B/010)
1
TABLE OF CONTENTS:
RESEARCH METHODOLOGY: ............................................................................................. 3
INTRODUCTION: .................................................................................................................... 5
1. MISTAKE - A Conceptual Understanding: ........................................................................... 6
2. ADMISSIBILITY OF MISTAKE AS A VALID DEFENCE IN CRIMINAL
JURISPRUDENCE: ................................................................................................................... 8
I.
B.
II.
Canada: ...................................................................................................................... 14
IV.
America: .................................................................................................................... 15
RESEARCH METHODOLOGY:
Objective:
The aim of this write up has been to identify and gauge the status of mistake as a valid
defence in common law. Also, the objective has been to study the various case laws in order
to understand the practical applicability of the defence in criminal cases.
Research Question:
Whether or not mistake of fact and mistake of law both are applied by Courts as a defence to
prevent criminal liability of the accused.
Hypothesis:
No, mistake of law is no defence in criminal law, whereas mistake of fact is not used as a
valid defence in criminal law.
Sources:
The author has used both primary sources and secondary sources for the research. The
primary sources include mainly the Indian Penal Code, the General Clauses Act, various
Indian as well as foreign cases. The secondary sources include mainly books by prominent
authors, research papers and journals on criminal law.
The research is purely doctrinal in nature.
Mode of Citation:
The author has followed a uniform mode of citation.
Chapterization:
A brief overview of the chapters that have been included in the write up has been given
below1. Mistake- A Conceptual Understanding:
It deals with the basic concept of mistake as a defence, mentioning the provisions of the
Indian Penal Code, 1860 that deal with it. It also classifies between mistake of facts and
mistake regarding the law.
2. Admissibility of Mistake As A Defence In Criminal Jurisprudence:
This chapter discusses separately the concepts of mistake of facts and mistake of law. Under
the head of mistake of law, it discusses its validity as a defence, the rationale behind
ignorantia juris, critics of the maxim and the legal position of mistake of law as a defence in
India.
Under the head mistake of fact, the theory of admissibility of mistake of fact as a valid
defence, the essential ingredients contained in Section 76 and Section 79 of the Indian Penal
Code, 1860, also the discussion between the two have been discussed.
3. Mistake As A Defence In Cases Of Strict Liability:
This chapter initially discusses the concept and rationale behind strict liability, followed by a
study of the legal position in India of mistake as a defence in strict liability offences.
4. Comparative Positions Abroad:
This chapter deals with the status of mistake as a defence in common law countries. The
present write up deals with the study of a few common law countries, namely, Britain,
Australia, Canada and America.
5. Mistake of Fact and Judicial Precedents:
This chapter has tried to bring to light a few landmark cases in order to understand the
practical application of the theoretical idea of mistake as a defence as discussed in the earlier
chapters.
Conclusion:
It contains a brief summary of the contents that has been dealt in all the chapters in the write
up.
INTRODUCTION:
The Indian Penal Code, along with other criminal systems all over the world provide certain
excuses, justifications and defences. Such excuses and justifications are nothing but certain
means of prescribing and proscribing certain behavioural pattern and also serve as means for
considering an individual innocent or guilty. In serving this purpose, a justification, defence
or excuse functions on a principle of exculpation in order to find out whether the accused is
guilty or innocent. This is to say that even though the accused has committed the crime or
done everything to commit the crime, or has caused harm to another, the defence would
release him of all charges, in spite of such commission of crime. In this light, it must also be
mentioned that defences may be excusable, justifiable and partial in nature.
Excusable defences are the ones that totally excuses the commission of the crime. Justifiable
defences, on the other hand, are such that they do not excuse the commission of the crime
prima facie, but will only do so, if in the Court of law, it can be shown that even though the
accused committed the crime, there is some justification to it. Such justification generally
comes in the form of certain external circumstances mainly as threat from third parties. In
case of justifiable defence, necessary components of mens rea and intention have been met,
but are justified. Whereas, in excusable defence, mens rea does not generate. Partial defences
(like, sudden and grave provocation) are such defences in which, the law does not encourage
the commission of the crime, but shows pity on the offender and accepts the defence.
The present write up however, deals with mistake as a distinct defence and its position in
common law.
Indian
Penal
Code,
Excusable
Defences,
http://www.hrdiap.gov.in/fcg2/studymaterial/week2/INDIAN%20PENAL%20CODE,%201860.pdf, last visited
on 20th March, 2015.
2
Why
Doesnt
Ignorantia
Juris
Excuse?,
Ankit
Majumdar,
Nandan
Kamath,
https://www.nls.ac.in/students/SBR/issues/vol10/1002.pdf, last visited on 20th March, 2015.
3
The Defence Of Obedience To Superior Orders In International Law, Yoram Dinstein 33, 1st Ed. 2012, Oxford
University Press,.
4
Section 105, Indian Evidence Act, 1872.
the crime which he has been charged with.5. Such a mistake is not considered to be a defence
in reducing or nullifying liability in a criminal offence.
Textbook on the Indian Penal Code, Krishna Deo Gaur 76, 4th Ed. 2011, Universal Law Publishing Co.
Mistake of Law:
A. MISTAKE OF LAW IS NOT A VALID DEFENCERationale behind the theory- Ignorantia Juris
The discussion regarding a mistake of law in criminal jurisprudence must start with the
Common Law principle of ignorantia facti doth excusat, ignorantia juris non excusat, which
says that mistake as to facts may be an excuse, but mistake of law acts as no excuse. The
rationale behind application of the aforementioned principle is that if every person accused of
committing an offence is given the option of exercising the defence of mistake of law, it
would come as a difficult task for the prosecution to rebut it and prove that the one accused
was actually aware of the law.6 Hence, this would lead to a situation of ambiguity in the
criminal justice administration, making it impractable to render justice.
In the aforementioned situation, if the plea of the accused is accepted, effect has to be given
to the law as he thinks it to be. This would most likely lead to a violation of the rule of law.
According to the rule of law,
Rules of law are objective.
Particular people, in the form of authorized officials can declare such rules, only after
following a procedure.
The rules and their interpretations are binding in nature.
Hence, allowing the defendant to interpret the law based on his opinion and thus excusing
him from criminal liability, would thus act as a violation from the basic legal order.7
Critics to the maxim of ignorantia juris
The justification behind the application of the maxim, ignorantia juris non excusat might
seem well grounded and clear. However, it has faced criticism from well known critics all
over the world.
Glanville Williams has observed that the proposition of everyone knowing the law of the land
cannot be a true legal proposition, and would remain as a mere legal fiction.8 He raises the
objection that, a lawyer or a barrister has at his disposal, innumerable sources other than the
6
PSA Pillais Criminal Law, K I Vibhute, 12th Ed. 2014 65, LexisNexis.
Ignorance and Mistake In Criminal Law, Jerome Hall, vol 33, Issue 1, Article 1, Indiana Law Journal 1957.
8
Ibid.
7
bare statute to know and interpret the law. A layman however, without the access to any
added source, is expected not only to know the law, but also interpret it in a way that it
matches the way the Court would interpret it, for resolving any form of uncertainty or
ambiguity.9
Other critics like, Justice Maule has criticised the maxim in the case of Martindale v.
Falkner10, saying that a presumption of every individual knowing the law would clearly be in
contrast with reason and a common sense.
B. LEGAL POSITION IN INDIA
Section 76 and Section 76 of the Indian Penal Code clearly point out that it is a mistake of
fact that can act as an excuse for avoiding criminal liability and not a mistake pertaining to
the law prevailing in the land.In India, mistake of law includes two facets of it- a mistake
about the existence of any form of law on the concerned subject and a mistake as to the
contents of the law on the particular subject.11 Moreover, because a law on a specific subject,
acts a sense of objectiveness to it, a citizen thus, should not be allowed to add a subjective
element to it due to his mistaken view regarding the law.12
II.
Mistake of Fact:
Theory behind admissibility of mistake of fact as a valid defenceSection 76 of the Indian Penal Code, 1860 deals with,
Act done by a person bound, or by mistake of fact believing himself bound, by law.
Section 79 of the Indian Penal Code, 1860, deals with,
Act done by a person justified, or by mistake of fact believing himself justified, by law.
It is the major function of a criminal justice system to not only implement and impose such
corrective and preventive measures that are able to prevent the incidence of criminal
offences, but also, focuses on correcting the mental status of a person who has been
responsible for the said offence. Had the law not taken care of the mental state of the accused,
it would lead to the conviction of any person irrespective of the fact that he might have
participated only negligently, unintentionally or unconsciously in the commission of the
offence. This therefore, would nullify the requirement of mens rea and would result in
9
Textbook Of Criminal Law, Glanville Williams, 2nd Ed. 2009 451, Universal Law Publishing Company Pvt.
Ltd.
10
Martindale v. Falkner, (1846) 135 ER 1124.
11
King Emperor v. Tustipada Mandal, AIR 1951 Ori 284.
12
Clarkson and Cleating Criminal Law, CMV Clarkson, HM Keating and SR Cunningham, 6th Ed. 2007 201,
Sweet & Maxwell Limited.
conviction based solely on the actus reus of the commission of the criminal act. In this
regard, the principle, actus facit reum nisi mens sit rea becomes important. It is in light of this
doctrine that mistake has gradually been accepted as an excuse to escape liability in criminal
jurisprudence. The principle lies- one is generally presumed to be aware of the nature and
consequences the act that he indulges in, hence, is found responsible for the same. However,
certain exceptions exist to the general rule, whereby one might be excused.13 Mistake with
the absence of the mental element, mens rea qualifies as such an extraordinary excuse.
Therefore, mistake of fact is considered as a valid excusable defence in the eyes of law. The
justification that lies behind exempting a person under a mistake of fact, from any criminal
liability, is grounded on the principle that one who is under a mistake as to the facts cannot
necessarily form an intention and hence is not held liable for the consequences of his deeds
done under such mistake.14 The incorporation of this is also found in the common law
doctrine, the Latin maxim, ignorantia facit doth excusat, ignorantia juris non excusat, which
essentially means, ignorance of fact is an excuse, but ignorance of law is no excuse. The first
application of this principle has been found in the case of R v. Levett15, wherein the person
accused of an offence was released on the aforementioned ground. However, after the above
case, may developments and a series of evolutionary steps have followed in the law relating
to mistake of fact.
A. Essential Ingredients In The Law Relating to Mistake of FactThe purpose of Section 76 and Section 79 of the Code, is to provide immunity from
conviction to such persons who are ordinarily bound or justified by law to involve in a certain
act, but, have committed an offence due to ignorance of facts. However, in order to invoke
mistake as a valid defence, a basic requirement is the presence of good faith and diligence
while being under a mistaken belief as to the fact situation.
BOUND BY LAWUnder Section 76 of the Indian Penal Code, one must be bound by law to perform the act
which he has performed under a mistake pertaining to the fact situation. Hence, it follows
that, if a person has to invoke the defence under Section 76, he must show that he has been
aware only of a particular set of facts that would support the belief that he was under a legal
13
Supra note 2.
The Indian Penal Code: Differences Between Justification and Excuses and Mistakes, Necessity and Accidents
as Defences, Sarica Ashok Reddy.
15
(1839) Cro Car 538.
14
10
compulsion to do the act.16 If however, he act done under mistake, is per se illegal, the
defence would not apply.
Justified by lawIn order to invoke Section 79 of the Indian Penal Code, one who has been accused of
committing a particular offence, must be able to show that the act that he has indulged in is
justified by law. As a valid defence in criminal jurisprudence, Section 79 exonerates the
accused based on his bonafide intention and belief, though a mistaken one, which deletes his
culpability.17
Good faithBoth Section 76 and section 79 of the Indian Penal Code, 1860 contain the element of good
faith. Here, it must be mentioned that the Indian Penal Code defines good faith as
Nothing is said to be done or believed in good faith which is done or believed without due
care and attention.18
On the other hand, the General Clauses Act defines good faith as,
A thing shall be deemed to be done in "good faith" where it is in fact done honesty, whether
it is done negligently or not.19
There lies a subtle distinction between the two in the fact that the former is an objective,
while the latter is subjective in essence. On one side, the argument lies that an act, in order to
be said to have been done in good faith must have been done with due diligence and care as
would be reasonably expected of him, besides the presence of a bonafide intention. However,
this requirement of reasonableness has been discarded in common law.20 A blunderer who is
honest is always shielded by good faith as per the definition provided in The General Clauses
Act, 1897, but, under the Indian Penal Code, a blunderer even though acting honestly, will
not be shielded by good faith for his negligent acts.21
A careful study of cases in India will depict that the Courts have used the test of good faith
in a manner very subjective, thereby construing it more in consonance with the definition
given in the General Clauses Act, 1897, than the one in the Indian Penal Code, 1860. In the
case of Bonda Kui v. Emperor22, the use of the good faith test as a means of testing the
genuineness of the belief or idea that the accused held while committing the act under
16
11
mistake of the facts was seen. Also, in the case of State of Orissa v. Ram Bahadur Thapa23,
the Court focussed more on the honest belief of the accused and not on his reasonableness of
his action, thereby moving closer to the definition as per the General Clauses Act, 1897. The
definition of good faith as provided by the Indian Penal Code, 1860, contains in it an
element of due care. Due care basically is a measure of the reasonableness that is supposed to
exercise while taking care. The Indian Courts however, construe the presence of such due
care, not very objectively, importance is given to the position of the accused, his capacity, all
other circumstances surrounding the act,24 thus adding a tone of subjectivity to it.
Therefore, it is the honest belief of a person as to the facts of the case that fulfils the
requirement of good faith as an important component of mistake under Section 76 and
Section 79 of the Indian Penal Code, 1860.
B. SITUATIONS TO ILLUSTRATE THE USAGE OF GOOD FAITHCases in which one was implementing or carrying out the orders given to him by his superior,
thereby believing himself to be legally bound to do the particular act. In such cases, the
accused is acquitted by virtue of applicability of mistake as a defence under Section 76 of the
Code.25
Cases in which the accused has done a particular act in good faith believing it to be justified
by the law. In such cases too, no conviction results and the accused is acquitted by virtue of
applicability of mistake as a defence under Section 79 of the Code.26
DISTINCTION BETWEEN SECTION 76 AND SECTION 79 OF THE CODEThe distinction between Section 76 and Section 79 lies in the elements of a legal compulsion
in the former and a legal justification in the latter. Section 76 requires the person concerned
to be legally bound to do the particular act, whereas, Section 79 simply requires that the act
performed by the person must have a proper justification by law.
23
12
27
Textbook On Criminal Law, Michael T. Molan, 3rd Ed. 2001 46, Old Bailey Press.
Codification, Macaulay and the Indian Penal Code: The Legacies and Modern Challenges of Criminal Law
Reform, Wing Cheong Chan, Barry Wright, Stanley Yeo 51, Ashgate Publishing Ltd, 2011.
28
13
Canada:
In Canada, the important case of R v. Park32, decided by the Canadian Supreme Court held
that mistaken beliefs that lack reasonableness must be reserved for the jury so that they
consider the same.
29
14
IV.
America:
In the American criminal justice system, a clear distinction is drawn between mistake of law
and mistake pertaining to a fact situation. There are four perspectives that are kept in mind
while deciding the admissibility of mistake of as a valid defence. Firstly, the equivalence
view considers both mistake of law and mistake of fact to be on an equal footing. The liberal
view an dthe moderate view, consider the question of admissibility of mistake of law as a
defence, keeping in mind the reasonableness of such mistake. The conservative view
however, goes to the extreme and propounds that mistake of law can never act as a valid
defence in criminal law.
Here it must be noted that a distinction lies between the British criminal system and the
American criminal system as far as the question of considering mistake as a valid defence is
raised. An important point to note, in this regard is that the English approach aims at
containing a subjectivity in the defence of mistake as to a fact situation, whereas, the Courts
in America, by incorporating the element of reasonableness adds an objective element in the
test for determining the validity of mistake of facts as a defence.33
In the criminal jurisprudence in America, it is important to prove the following points in
order to construe mistake as a valid defence:
Harm done was due to a voluntary act of the defendant.
Such act would not be done by a reasonable and prudent man, based on the belief of facts as
the defendant construed it to be.34
Thus, according to the Model Penal Code, mistake pertaining to the facts that negatives the
mens rea in a criminal law is a valid defence.
33
The Mistake Of fact Defense And The Reasonableness Requirement, Margaret F. Brinig, Notre Dame Law
School, Scholarly Works, 1978, Paper 793.
34
Ibid.
15
16
mala in se, which, if committed by a person, makes him liable for the same whether or not he
had knowledge of the same. In the latter however, the act of the accused marrying for the
second time, during the course of her spouses lifetime, was not in itself a wrong, but was
mala in prohibit, meaning, prohibited by law.
In the case of State of Maharashtra v. Mayer Hans George38, the respondent carrying around
34 kgs of slabs of gold was found guilty for violating the provisions of the Foreign Exchange
Regulation Act and a notification dated 24th November, 1962, the respondent having boarded
the plane on 27th November, 2002. Here, the Court held that the respondent, a foreign
national could not take the plea that he was not aware of the existing Indian law, being
unaware of the RBI notification and thus, was convicted. Such law however, in order to
operate inside the territory of India, does not mandatorily be made known or published
beyond the Indian territory.39
Another set of cases arise when the accused, in a mistake of fact, felt that he was justified
under the law to do the same. For instance, in the case of Chirangi v. State of Madhya
Pradesh40, the accused, in a confused and unstable state of mind had visualized a tiger instead
of his son and in a mistake that it was his son, killed him. The Madhya Pradesh High Court,
in this case, held that the accused was under a mistake of fact that it was a tiger and not his
son, hence, believed himself to be justified by law to have killed the tiger in his own
protection. Protection was thus given to the accused under Section 79 of the Indian Penal
Code and thus was acquitted. A similar case, Bondi Kui v. Emperor41 came up before the
Patna High Court in which the accused, a woman mistakenly thinking her brother-in-laws
wife to be an evil spirit had beaten her to death. The Court held that the accused was not
liable under Section 302 of the Indian Penal Code and was fully protected under Section 79
of the Code because she was under the mistaken belief that the deceased was an evil spirit
that could cause harm to humans and not a human being herself.
38
17
Orissa v. Khora Ghasi42 the accused, while he was on guard his field, had shot a man,
thinking him to be a bear. The Court, on account of the bona fide belief of the accused, held
that he was not liable under Section 302 as he was completely protected by Section 79 of the
Indian Penal Code.
Thus, the above series of cases gives an overview of the applicability of Section 76 and
Section 79 as defences in criminal law, also viewing the status of mistake of law as a defence.
42
18
CONCLUSION:
Mistake as a defence in common law brings with it two wings- mistake of law and mistake of
fact. The primary question that arises is, regarding the applicability of both mistake of alw
and of fact as valid defences in criminal law. The legal position in common law countries,
though substantially the same, differ slightly.
However, from the above discussion regarding mistake as a defence in common law, it is
hence clear that mistake can be used a valid defence in criminal offences. The application of
such defence however might differ from country to country or even among different Courts in
the same country. While mistake of fact is a valid defence in most of the jurisdictions, a
mistake of law is considered as no excuse in criminal law. Another facet of difference is the
requirement of reasonableness while dealing with the question as to whether or not an act was
done in good faith. As discussed above, the Indian criminal jurisprudence contains the
element of mistake as a defence under two provisions of the Indian Penal Code, 1860. Also,
the two provisions deal with two categories of cases, that might seem identical but have a
subtle difference- Section 76 concerns acts that one thought to be bound by law to do it,
whereas, Section 79 concerns such acts which are not prohibited by law and if done, will not
attract any impunity. Acts under Section 76, on the other hand, bring about a kind of
compulsion. Mistake has another facet when it comes to offences involving strict liability.
Slight differences exist between the existent legal position in India and in other common law
countries regarding the applicability of mistake as a defence in strict liability cases.
Further detailed discussions of a few landmark cases show that the Indian Courts have used
mistake as a defences in criminal offences, in a very subjective manner. The requirement of
due care and attention has not been given utmost importance. Good faith based on the honest
intention of the accused has been enough to successfully apply mistake of fact as a defence.
the law tries to protect the ones who have committed an act under a genuine mistake because,
an act done without the perfect intention to do it, lacks mens rea. Punishing one for such an
act would defeat the basic principles of criminality. However, the law does not excuse one if
he claims that he was unaware of the law. This is because, such a plea, if accepted would be
highly problematic, attracting innumerable people who would seek to escape the clutches of
justice and punishment by pleading ignorance of the law. Thus, it is mistake of fact and not a
mistake of law that is considered as a valid defence by the Courts by and large.
19
BIBLIOGRAPHY:
Books:
Ignorance and Mistake In Criminal Law, by Jerome Hall, 1957, Indiana Law Journal, vol
33.
Textbook Of Criminal Law, by Glanville Williams, 2nd Edition, 2009, Universal Law
Publishing Company Pvt. Ltd.
Textbook On Criminal Law, Michael T. Molan, 3rd edition 2001, Old Bailey Press.
Codification, Macaulay and the Indian Penal Code: The Legacies and Modern Challenges
of Criminal Law Reform, edited by Wing Cheong Chan, Barry Wright, Stanley Yeo,
Ashgate Publishing Ltd, 2011.
Journals:
The Indian Penal Code: Differences Between Justification and Excuses and Mistakes,
Necessity and Accidents as Defences, Sarica Ashok Reddy.
Internet Sources:
http://www.hrdiap.gov.in/fcg2/studymaterial/week2/INDIAN%20PENAL%20CODE,%2
01860.pdf
https://www.nls.ac.in/students/SBR/issues/vol10/1002.pdf
https://books.google.co.in/books?id=2Dp6pK4uGIC&pg=PR23&dq=defence+of+mistake+of+fact&hl=en&sa=X&ei=Jm0MVc3u
KePCmAWsnILYCA&ved=0CBwQ6AEwAA#v=onepage&q=defence%20of%20mistak
e%20of%20fact&f=false.
20