Law and You > Criminal Laws > Bharatiya Nyaya Sanhita, 2023 > Chapter III: General Exceptions > Mistake of Fact as General Exception (S. 14 BNS)
Chapter III of the Bharatiya Nyaya Sanhita, 2023 deals with the โGeneral Exceptionsโ which a person, accused of an offence under the Sanhita or any special or local law can plead. This chapter exempts certain acts from criminal liability. Throughout this Sanhita every definition of an offence, every penal provision, and every illustration of every such definition or penal provision, shall be understood subject to the exceptions contained in the Chapter entitled โGeneral Exceptionsโ, though those exceptions are not repeated in such definition, penal provision, or illustration. If the existence of facts, or circumstances bringing the case within any of the exemptions is proved, negatives the existence of โMens reaโ necessary to constitute the offence and thereby furnishes a ground for exemption from criminal liability. In this article, we shall discuss the defence of mistake of fact as general exception.
List of Sub-Topics:
- Introduction
- Section 14 BNS
- Terminology Used in Section 14
- Orders From Superiors
- Mistake of Law is No Exception
- Conclusion
Section 108 of the Bharatiya Sakshya Adhiniyam, 2023, lays down that a person accused of an offence bears the burden of proving the existence of circumstances to bring the case within any of the General Exceptions. The court shall presume the absence of such circumstances. The Section clearly declares that the Court will presume that there are no circumstances in the case which would bring the case under Chapter III of General Exceptions of the Bharatiya Nyaya Sanhita, 2023. Now it is on the part of the accused to bring the evidences and prove the existence of circumstances to bring the case within any of the General Exceptions. Chapter III of the Bharatiya Nyaya Sanhita, 2023, entitled โGeneral Exceptions,โ which includes sections 14 to 44, exempts certain individuals from criminal liability. An accusedโs 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 III of the Bharatiya Nyaya Sanhita, 2023. In this article, we shall study provisions of Section 14 of the Bharatiya Nyaya Sanhita, 2023. To understand Section 14 of the Sanhita you should be clear about the concept of mistake of law and mistake of fact.
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Section 14 of the Bharatiya Nyaya Sanhita, 2023:
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.
Illustrations:
(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.
Note:
This Section corresponds to Section 76 of the Indian Penal Code, 1872
Ingredients of Section 14:
- The person is under a legal obligation to obey orders of the government or the superior in question;
- The accused believed that he is bound by law to obey orders;
- The person did not know that the order was unlawful;
- There is some law or colour of law to justify the act;
- It is a mistake of fact;
- It is not a mistake of law.
- It is done honestly and in good faith;
The purpose of this section is to provide protection to persons, who are bound by law or justified by law doing a particular act, but due to mistake of fact committed an offence. The mistake must be in a good faith and after exercise of due diligence. The justification for such exemption is that a man who is mistaken about facts cannot form necessary intention to commit the offence.
โIgnorantia facti excusat ignorantia legis neminem excusatโ is well known Maxim of Criminal Law, which means ignorance of fact is an excuse, ignorance of law is no excuse. This maxim follows the doctrine of Mens rea. Nothing is an offence which is done by a person bound, by law nothing is an offence which is done by a person who is, or who by reason of a mistake of fact, in good faith believe himself to be bound by law to do it.
Section 14 excuses a person from criminal liability who, into good faith, commits an act. Provided he believes he is bound to do so under law, due to mistake of fact. The legal presumption is that everyone knows the law of the land. An act will not be an offense if it is committed in a manner by a person who by mistake of fact believes to be bound by law or who bound by law. However, mistake of law per se is not excusable.
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Terminology Used in Section 14 BNS:
Meaning of 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 Blackโs law dictionary, the word โjustifiedโ means โthe 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 lawโ.
One of the essential ingredients that an offender requires to get Sections 14 and 17 defence is that his conduct must be taken in โgood faithโ.
- The term โgood faithโ has been defined in section 2(11) of BNS as โNothing is said to be done or believed without due care and attentionโ.
- Section 3 (22) of the General Clauses Act 1897 defines the term โgood faithโ as โA thing shall be deemed to be done in โgood faithโ where it is in fact done honestly, whether it is done negligently or notโ.
In Farrell v. State, 32 Ohio St. 456, 459 (877) case, the Court observed that the term โhonest beliefโ, 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.
Meaning of โMistake of Lawโ:
The maxim โignorantia legis neminem excusatโ means โignorance of the law excuses no manโ. 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. ย Mistake of law is a defence 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 defence of mistake of law applies in very limited circumstances. Generally, the mistake of law is not excusable.
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.
Meaning of โMistake of Factโ:
Ignorance or mistake of fact is very often an excuse for what would otherwise be a crime. ย 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.ย 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.
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 IPC (S. 17 and 18 BNS).
Inย 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 plaintiffโs house and thus he brings the cart and Cart man 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.
Inย 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 officerโs finding,ย 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.
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Orders from Superiors:
An act is not an offence if it is done by a person who because of mistake of fact and not of mistake of law in good faith believes that he is bound by law to do it. When a person is in fact not bound by law to do something but he does that by reason of a mistake of fact and not mistake of law in good faith believing that he is bound by law to do it, it is not an offence. Mistake of fact and good faith must be proved to be present while mistake of law must be proved to be absent under this part of the section.
Illustration (a) attached to this section states that 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. The key words in this illustration are โin conformity with the commands of the lawโ. The subordinate officer is protected only when the orders of the superior officer are in conformity with the commands of the law. If such is not the case, he is liable for obeying the order. The expression means that the orders are justified and valid in the eye of law. All the legal requirements of a just order must have been fulfilled, only then is a subordinate officer protected under this section. Thus the orders are illegal, neither the superior officer who gives the order nor the subordinate officer who executes or follows the same is protected under this section. Thus in case of order from superior, the Sanhita does not recognize mere duty of blind obedience by the subordinate to the commands of superior as sufficient to protect him from penal consequences of his act. In such case the Sanhita expects that the subordinate must use his own judgment.
In State of West Bengal v. Shew Mangal Singh, AIR 1981 SC 1917 case, where the facts were that a police patrol party opened fire under the orders of a Deputy Commissioner of Police after it was attacked on a dark night. One Assistant Commissioner of Police was injured in the attack. As a result of the firing by the patrol party, two persons were killed. After a lapse of about nine years, the police personnel were prosecuted for murder. The Supreme Court in the appeal against their acquittal held that the prosecution did not succeed in proving the case against them. There was no question of proving the defence of mistake of fact by the accused. It is clear that the order of firing given by the superior officer to his subordinates was given under commands of the law and, therefore, the patrol party was bound to obey the orders under the first part of section 76 of IPC (S. 14 BNS). Since the first part of the section was applicable there was no question of proving of mistake of fact and good faith by the accused at all. Consequently, they were not held liable for murder.
In Charan Das Narain Singh v. State, ย AIR (37) 1950 (P & H) 321 case, where information was received that some persons were gambling in a tent. A party consisting of Harnam Singh, a superior officer, and the accused, Charan Singh, a soldier, were sent to make an inquiry. The party arrived and surrounded the tent. Soon after the sound of a gun was heard and the deceased who was inside the tent was foundย dead. At the trial, Charan Singh admitted that he had fired the shot but pleaded that he had done so in obedience to the order of his superior. The Court held that the order issued by the superior was wholly unjustified and manifestly illegal. Hence, the accused did not have any duty to follow such an order. In fact, it was under his duty to defy any irrational and illegal order. Sections 76, 79 IPC (Ss. 14 and 17 BNS) or Exception 3 of section 300 IPC (S. 101 BNS) did not apply. ย Since the order was wholly unjustified, the firing by Charan Das and the killing in obedience to the order was murder.
In R.S. Nayak v A.R. Antulay, 1986 SCR (2) 621 case the Supreme Court held that the superiorโs direction is no defence in respect of criminal acts, as every officer is bound to act according to law and is not entitled to the protection of a superiorโs direction as a defence in the matter of commission of a crime.
In Niamat Khan v. Empress, 17 PR 1883 case, Rattigan J. observed: โNow to entitle a person to claim the benefit of Section 76 IPC (S. 14 BNS) is necessary to show the existence of a state of facts which would justify the belief in good faith, interpreting the latter expression with reference to Section 52 IPC (S. 2(11) BNS), that the person to whom the order was given was bound by law to obey it.
Liability of Private Person to Assist Police:
Private person who are bound to assist the police under Section 40 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is protected under Section 14 BNS.
Mistake of Law is No Exception
In State Of Maharashtra vs Mayer Hans George, 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.ย 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.
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Conclusion:
It can be concluded from the above discussion that the law does not expect a person to obey illegal orders of his superior. In case of order from superior, the Sanhita does not recognize mere duty of blind obedience by the subordinate to the commands of superior as sufficient to protect him from penal consequences of his act. In such case the Sanhita expects that the subordinate must use his own judgment. There is a possibility that if he does not obey an order even though illegal, he may be liable under a departmental action for disobeying his superior officer. Similarly, even though the defence may fail, the circumstances of the case may justify mitigation of penalty. Private person who are bound to assist the police under Section 40 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is protected under Section 14.
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