Law and You > Criminal Laws > Indian Penal Code > Mistake of Law and Mistake of Fact
In this article we shall understand the concept of mistake of law and mistake of fact, which is very important in understanding general exceptions.
List of Sub-Topics:
- Introduction
- Ignorantia facti doth excusat and ignorantia juris non excusat
- Mistake of Law
- Mistake of Fact
A plain reading of sections 76 and 79 in the Indian Penal Code, 1860, with special attention to the words ‘who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes’ appearing therein, shows us that the protection of the sections applies only to mistake of fact and not to mistake of law. For example, if a man is caught by a ticket conductor for travelling on a train without a ticket. He cannot claim that he was not aware that a ticket is required while travelling on the train and shall be punished under Section 138 of The Indian Railways Act, 1989. Before studying Section 76 and 79 of the Code, we have to study the concept of mistake as a general defense. There are two types of defenses based on mistake: (1) Mistake of law and (2) Mistake of fact.
Chapter IV of the IPC, entitled ‘General Exceptions,’ which includes sections 76 to 106, exempts certain individuals from criminal liability. An accused’s act or omission, even if prima facie falls within the terms of a section defining an offense or prescribing punishment for it, is not an offense if it is covered by any of the exceptions listed in chapter IV. These provisions can be used as general defences. General defences are the excuses that help a person to escape his liability if his action qualified under the given provision of defences. If the defendant fails to prove why he has to do that act, he cannot escape from his liability. There are some specific defences which are available for the wrongful acts:
- Volenti non-fit injuria
- Plaintiff, himself the wrongdoer
- Inevitable accident
- Act of God
- Private defence
- Mistake
- Necessity
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Ignorantia facti doth excusat and ignorantia juris non excusat:
The maxims “Ignorantia facti doth excusat” and “ignorantia juris non excusat” mean ignorance of fact is an excuse, but ignorance of the law is no excuse. Thus the mistake of fact can be used as a defence during the trial. In many situations, a criminal defendant may wish to argue that he or she never intended to commit a crime and that the criminal act that occurred was a result of a mistake of facts regarding the circumstances of the crime or a misunderstanding concerning the law at the time. Such mistakes of fact can be applied to a variety of criminal activities, but mistakes of law are only rarely allowed as full defenses to criminal conduct.
Honest and Reasonable Belief or Good Faith:
A person can take the defence only when he acts in good faith and with good intention and believes that his act is justified by law. According to Black’s law dictionary, the word “justified” means “the act done on adequate reason sufficiently supported by credible evidence, when weighed by the unprejudiced mind, guided by common sense and by correct rule of law”.
One of the essential ingredients that an offender requires to get Sections 76 and 79 defence is that his conduct must be taken in ‘good faith’. The term ‘good faith’ has been defined in section 52 IPC as “Nothing is said to be done or believed without due care and attention”. Section 3 (22) of the General Clauses Act 1897 defines the term ‘good faith’ as “A thing shall be deemed to be done in ‘good faith’ where it is in fact done honestly, whether it is done negligently or not”.
In Hamilton v. State, 29 S. W. (2d) 777 (1930) case, the Court held that if no specific intent or other special mental element is required for the guilt of the offense charged, a mistake of fact will not be recognized as an excuse unless it was based upon reasonable grounds.
In Farrell v. State, 32 Ohio St. 456, 459 (877) case, the Court observed that the term “honest belief”, and equivalent phrases, are sometimes used to express two different ideas: (1) that the belief must have been sincere and (2) that what was done would have been proper had the facts been as they were mistakenly supposed to be.
In Hill v. State, 194 Ala. II, 69 So. 941 (1915) case, the Court held that who kills another because of a mistaken belief that his own life is in imminent peril at the hands of the other, is not excused if there is no reasonable ground for this belief.
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Mistake of Law:
The maxim “ignorantia legis neminem excusat” means “ignorance of the law excuses no man”. A mistake involving the misunderstanding or incorrect application of the law with regard to an act or transaction is called a mistake of law. A mistake of law is where you are mistaken or ignorant about the law. Mistake of law is a defense that the criminal defendant takes that they misunderstood or was ignorant of the law as it existed at the time. It is expected that individuals must be aware of the laws of land. This defense of mistake of law applies in very limited circumstances. Generally, the mistake of law is not excusable.
Illustration1: A, a foreigner, kills a wild buffalo in India. He believes that killing a wild buffalo to be lawful in India. ‘A’ is guilty of killing the wild buffalo. He can’t take the defence that he was unaware of the law.
Illustration 2: If a man is caught by a ticket conductor for travelling on a train without a ticket. He cannot claim that he was not aware that a ticket is required while travelling on the train and shall be punished under Section 138 of The Indian Railways Act, 1989.
In Mohammad Ali v. Sri Ram Swarup, AIR 1965 All 161 case, it was held that mistake or ignorance of the law, even in good faith, is not a defence. It, nevertheless, may operate as a mitigating factor. And the arrest of a person without a warrant not justified.
In R v. Esop, (1836) 173 E.R. 203 case, where the person charged with violating a published law is a stranger to the jurisdiction (India) and claims in defence that the act in question was not an offence under the law of that person’s home jurisdiction (Baghdad). The Court rejected this defence and convicted him for the offence.
In Mayer Hans George v. the State of Maharashtra (AIR 1965 SC 722) case the accused was a German national. He was on his way from Zurich to Manila on a Swiss aircraft which arrived in Bombay while in transit. He remained within the aircraft and did not come out. He did not file a declaration under the Foreign Exchange Regulation Act, 1947, regarding the gold he was carrying. During the checking, the customs found the gold on aircraft. The accused was booked under the Foreign Exchange Regulation Act, 1947. The cause of action arose in India. The Supreme Court held that his trial and conviction under the Indian law was valid. The Court also held that it is not necessary for Indian law to be published outside India so that foreigners can know about them. Thus Ignorance about the Law or any change in it cannot be pleaded.
When Can a Mistake of Law Be a Defence?
There are a few very limited circumstances in which a mistake of law can serve as a defence to criminal charges. The circumstances in which a mistake of law can serve as a defence include:
- When the law is not published
- When statute relied upon was later overturned or held to be unconstitutional
- When the defendant relied upon a judicial decision
- When the defendant relied upon an interpretation by an appropriate official
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Mistake of Fact:
Ignorance or mistake of fact is very often an excuse for what would otherwise be a crime. Mistake of fact takes place when one of the party or both the parties misunderstand each other leaving them at a crossroads. It arises when accused misunderstood some fact that negates an element of crime. Such a mistake can be because of an error in understanding, or ignorance or omission etc. But a mistake is never intentional, it is an innocent overlooking. A mistake of fact is only a defence if it negates a material element of the crime and where offence is so defined that proof of intention or foresight is unnecessary.
Under Section 79 of the Indian Penal Code, 1860, an act may not be justified by law, yet if it is done under the mistake of fact, in good faith under the belief that it is justified by law it will not be an offence.
Essentials of Mistake of Fact:
- It must be honest done in good faith;
- It must be reasonable;
- It is not mere forgetfulness;
- It is not made by design but by mischance; and
- It must not be the mistake of law.
Illustration 1: Jacklyn went for dinner with her friend in a restaurant. She and her friends enjoyed dinner and made a lot of fun. She had to leave early, she hurriedly lifted a Samsung Mobile on the table and left the venue. When she reached home, she noticed that her own Samsung mobile was in her bag and in a hurry she had lifted someone else’s mobile thinking it to be of her. She had mistaken because both mobiles were of the same brand and same model with the same colour. She had no intention to steal the mobile. Here Jacklyn made a reasonable mistake of fact. Hence Jacklyn is not guilty of the offence of theft.
Illustration 2: Jacklyn went for dinner with her friend in a restaurant. She and her friends enjoyed dinner and made a lot of fun. She had to leave early, she hurriedly lifted the Samsung Mobile on the table and left the venue. When she reached home, she noticed that her own Motorola mobile was in her bag and in a hurry she had lifted someone else’s Samsung mobile thinking it to be of her. Actually, the two models were totally different from each other. She had no intention to steal the mobile. Here Jacklyn made a reasonable mistake of fact. Hence Jacklyn is not guilty of the offence of theft. She can defend herself that she had no intention to permanently deprive the owner of the property, which is the main ingredient of theft.
Illustration 3: In India hunting of a Wild Buffalo is an offence as per section 9 of the Wildlife Protection Act 1972. If a person, who is ignorant of section 9 of the Wildlife Protection Act, shoots a wild Buffalo thinking that it is a domestic buffalo he is said to be acting in ignorance of the law as well as of a fact.
In R. v. Prince, LR 2 CCR 154 case, Henry Prince (H) was convicted under Section 55 of the Offences Against the Person Act 1861 of taking an unmarried girl under the age of 16 out of the possession of her father without the father’s consent. The girl, Annie Phillips (A), was in fact 14 years old, however, A had told H that she was 18, and H reasonably believed that that was her age. The appellant appealed against his conviction. Section 55 of the Offences Against the Person Act 1861 is silent as to the mens rea required for the offence. The issue in question was whether the court is required to read a mens rea requirement into a statute which is silent as to the mens rea for an offence, and therefore if H’s reasonable belief was a defence to the offence under Section 55. The Court held that where a statute is silent as to the mens rea for an offence, the court is not bound to read a mens rea requirement into the statute. The offence was one of strict liability as to age, therefore a mens rea of knowledge of the girl’s actual age was not required to establish the offence. H’s reasonable belief was therefore no defence, and the conviction was upheld. Court further laid down the following rules on a mistake of facts:
- That, when an act is in itself, is plainly criminal, and is more severely punishable if certain circumstances co-exist, ignorance of the existence of such circumstances is no answer to a charge for the aggravated offence;
- That where an act is prima facie innocent and proper unless certain circumstances co-exist, then ignorance of such circumstances is an answer to the charge;
- That even in the last-named cases, the state of defendant’s mind must amount to absolute ignorance of the existence of circumstances, which alters the character of the act, or to belief in its non-existence; and
- Where an act which is in itself wrong is, under circumstances, criminal, a person who does the wrong act cannot set up as a defence that he was ignorant of the facts which turned the wrong into crime.
In State v. McDonald, 7 Mo. App. 510 (1879) case, a streetcar conductor, who forcibly ejected a passenger from the car under the honest and reasonable (though mistaken) belief that his fare had not been paid. The Court held that the conductor is liable to the passenger in a civil action but not guilty of criminal assault and battery.
In People v. Cohn, 193 N. E. 150, 153 (934) case the Court held that an honest mistake of fact will generally shield one from criminal prosecution.
In Keso Sahu v. Saligram Shah, 1977 CriLJ 1725 case, the accused showed that he in good faith and believing that the offence of smuggling rice was going on in the plaintiff’s house and thus he brings the cart and Cartman to the police station. The said suspicion was proved to be wrong. The court held that the accused can take the defence of mistake of fact as he is doing the act in good faith and believing it to be justified by law.
In Dhaki Singh v. State, AIR 1955 All 379 case, the accused shot an innocent person mistaking him to be a thief, although he believes that he is bound to nab the thief. According to the officer’s finding, he was not in the position to apprehend him, fired at him. The Court held that accused cannot take the defence of mistake of fact as the act done by him was not justified.
In State of Orissa v. Khora Ghasi, 1978 CrLJ 1305 (Orissa) case, the accused while guarding is field short an arrow at a moving object in the bona fide belief that it was a bear and in the process caused a death of a man who was hiding there. The Court held that he could not be held liable for the murder as his case was fully covered by Sections 79 and 80 of the Code.
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Conclusion:
There are two types of defences based on mistakes: (1) a mistake of law and (2) a mistake of fact. The defense of the mistake of law applies in very limited circumstances. Generally, the mistake of law is not excusable. A mistake of fact is only a defense if it negates a material element of the crime and where offence is so defined that proof of intention or foresight is unnecessary.