Law and You > Criminal Laws > Indian Penal Code > Mistake of Fact: Section 76 of IPC
In this article, we shall discuss the defense of mistake of fact under Section 76 of the Indian Penal Code, 1860.
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Section 105 of the Indian Evidence act, 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 IV of General Exceptions of the Indian Penal Code. 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 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. In this article, we shall study provisions of Section 76 of the Code. Before proceeding further in this article, I’ll suggest you to read article on the Mistake of Law and Mistake of Fact. To understand Section 76 of the Code you should be clear about the concept of mistake of law and mistake of fact.
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Section 76 of the Indian Penal Code, 1860:
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.
Essentials of Section 76:
- 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;
“Ignorantia facti excusat ignorantia legis neminem excusat” 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 76 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 76:
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 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.
Meaning of “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.
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 “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.
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.
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 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.
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.
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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 ‘in conformity with the commands of the law’. 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 code 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 code 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 the Code. 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, 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 found 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, or Exception 3 of section 300 of the Code did not apply. 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 superior’s 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 superior’s direction as a defence in the matter of commission of a crime.
In Niamat Khan v. Empress, 17 PR 1883 case, Rattigan J. observed: “Now to entitle a person to claim the benefit of Section 76 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, of the Code, 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 42 of the Code of Criminal Procedure is protected under Section 76.
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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 code 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 code 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 42 of the Code of Criminal Procedure is protected under Section 76.