Law and You > Criminal Laws > Indian Penal Code > Mistake of Fact: Section 79 of IPC
In this article, we shall discuss the acts justified by law, which are not offences under IPC.
List of Sub-Topics:
- Introduction
- Section 79 IPC
- Terminology Used in Section 79
- Comparing Section 76 and Section 79 of IPC
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 evidence 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 79 of the Code regarding an act justified by law. Before proceeding further in this article, I’ll suggest you to read the 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 79 of the Indian Penal Code, 1860:
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.
Illustration:
A sees Z commit what appears to A to be a murder. A, in the exercise, to the best of his judgment exerted in good faith, of the power which the law gives to all persons of apprehending murderers in the fact, 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.
Ingredients of Section 79:
- The act of a person is justified by law or by mistake he believes that his act is justifiable by law;
- It is a mistake of fact;
- It is not a mistake of law;
- It is done honestly and in good faith.
Section 79 excuses a person from criminal liability who, into good faith, commits an act. Provided that his act is justifiable by law or he believes himself that his act to be justified by law. The first part states that when any person is justified by law to do something, the doing of that thing is not an offence. A person is justified by law to do something when the law provides him a right to do that thing. According to this part of the section, therefore, doing what is justified is not an offence under law. Matters relating to mistake of fact, mistake of law or good faith do not come up for consideration under this part at all, because it is justified by law. The second part of the section, deals with the defence of mistake of fact. Under this part a thing 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 justified by law to do it. Under this part of the section mistake of fact and good faith must be proved to be present whereas mistake of law must be proved to be absent.
Private persons acting under Sections 38 (Aid to person, other than a police officer, executing warrant), 43 (Arrest by private person and procedure on such arrest), 72 (Warrant to whom directed), and 73 (Warrant may be directed to any person) of the Code of Criminal Procedure are protected under this Section.
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Terminology of Section 79:
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 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.
In Sheo Surun Sahai v. Mohamed Fazil Khan, (1868) 10 WR (Cri) 20 case, a police officer saw a horse tied up in B’s premises resembling one which father had lost a short time ago. He jumped to conclusion that B had either stolen the horse himself or had purchased it from the thief. He compelled B to B for its possession. He came to know that B had bought the horse from one S. He sent for S and charged S with the theft, and compelled him to give bail when an investigation was pending. During this period officer failed to take the trouble to find credible information as to whether it was his father’s horse or not. The Court held that the police officer had neither acted in good faith nor with due care and hence Section 79 does not protect him.
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 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 observed that there was no right to shoot under section 46 of the Code of Criminal Procedure, 1898 (corresponding to section 46 of the Code of Criminal Procedure, 1973). The Court held that accused cannot take the defence of mistake of fact (Section 79) as the act done by him was not justified. However, exception 3 to section 300 of the Indian Penal Code was held to be applicable and the accused was held liable under section 304, Part II of the Indian Penal Code.
In Bonda Kui v. Emp, AIR 1943 Pat 64 case, Bonda Kui and her niece were the sole residents of the house. In the middle of the night, she saw a figure dancing in a state of complete nudity with a broomstick tied on one side and a torn mat around the waist. The woman thought it is an evil spirit which consumes humans and so she gave repeated blows by a hatchet and felled the thing to the ground. She immediately informed her niece that she had killed an evil spirit. Examination showed, however, that she had killed a human being who was the wife of her husband’s brother. The only evidence, in this case, was the statements made by the appellant from time to time. All along she maintained that she did not take the unfortunate deceased to be a human being at all but thought that it was something which eats up human beings.
Reversing the judgment of conviction and sentence of six years’ imprisonment of the lower court, the Patna High Court allowed the defence of mistake of fact under section 79 of the Code and observed that the state of society to which the appellant belonged and the fact that she was a superstitious woman were important considerations to decide as to whether she had acted in good faith.
In Hayat v. Emp., AIR 1932 Lahore 243 case, the accused in the early gloaming saw a stooping child in a place which was believed by him and other villagers to be haunted. Believing the child to be a spirit or demon he attacked it and gave blows which resulted in its death before he realised his mistake. He was convicted under section 304-A of the Code and his defence under section 79 of the Code was rejected on the ground that he had not acted in good faith.
In Chirangi v. State (1952) Cri LJ 1212 case, the accused in a moment of delusion believed his son to be an animal, he assailed him with an axe. It was held that he was justified as he mistook a human being to be a dangerous animal and was not held liable for his mistake.
In Prof. Sumer Chand v. Union of India, AIR 1993 SC 2579 case, the Court held that if the performance of the act which constitutes the offence is justified by law, i.e. by some other provision, then Section 79, exonerates the doer because the act ceases to be an offence. Likewise, the act was done by one who by reason of a mistake of fact in good faith believes himself to be justified by the law in doing it then also, exception operates and the bona fide belief, although mistaken, eliminates the culpability.
In Raj Kapoor v. Laxman, AIR 1980 SC 605 case, Mr. Raj Kapoor was prosecuted for exhibiting the film “Satyam Shivam Sundaram” on the charge of Section 292 IPC (obscenity). In this case, Raj Kapoor exhibited the film after getting a certificate in respect of the film under Section 5A of the Cinematograph Act, 1952. The Supreme Court observed that if the offender can irrefutably establish that he is actually justified by the law in doing the act or alternatively, that he entertained a mistake of fact and in good faith believed that he was justified by the law in committing the act, then the weapon of Section 79 demolishes the prosecution. The Court held that Raj Kapoor committed no offence in view of Section 79 of IPC.
Case Laws:
In egina vs. Prince, 154 (1875), where the defendant was convicted of taking an unmarried girl under 16 years out of the possession and against the will of her father. The jury found that the girl had told the defendant she was 18, the defendant honestly believed the statement, and his belief was reasonable. Defendant argued that the statute has a requirement read into it that the prosecution must prove that the defendant believed the girl he had taken was over 16. State argued that the statute does not require this proof. The act of taking a girl out is wrong in and of itself – that is the mens rea. It does not matter that he thought the girl was older. Just like it would not matter whether he knew or did not know whether she is under 16. However, it would have mattered if he did not know the girl was in the custody of her father. The Court held conviction. The Court reasoned that the court interpreted the statute to require a strict liability application. The Common Law does not allow defences to strict liability.
In R v. Tolson (1889) case, where in September 1880, the appellant and defendant married. In December 1881, the appellant went missing after the ship, he was on sank in the sea. The defendant waited for her spouse (the appellant) for six years in the hopes that he would return. The defendant eventually remarried, believing her spouse is dead. After learning of his wife’s (the defendant) remarriage, the appellant returned eleven months later and filed a bigamy appeal against her. The appellate court stated that Ms. Tolson was protected in this scenario by an old common law norm. The court found that an “honest and reasonable belief” in the presence of circumstances that, if true, would render the accused’s actions innocent constituted a valid defence.
In Sheo Surun Sahai v. Mohamed Fazil Khan, (1868) 10 WR (Cri) 20 case, a police officer saw a horse tied up in B’s premises resembling one which father had lost a short time ago. He jumped to conclusion that B had either stolen the horse himself or had purchased it from the thief. He compelled B for its possession. He came to know that B had bought the horse from one S. He sent for S and charged S with the theft, and compelled him to give bail when an investigation was pending. During this period officer failed to take the trouble to find credible information as to whether it was his father’s horse or not. The Court held that the police officer had neither acted in good faith nor with due care and hence Section 79 does not protect him.
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Distinction between Section 76 and Section 79 of IPC:
| Section 76 | Section 79 |
| An 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. | 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. |
| Section 76 deals with those class of cases where person by reason of mistake (or ignorance) of the fact, in good faith, considers himself bound by law to do an act. | Section 79 deals with those class of cases where person by reason of mistake of fact considers himself justified by law to do the act in a particular way. |
| There is real or supposed obligation in doing a particular act. | There is real or supposed justification in doing a particular act. |
| Illustration: 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. | Illustration: A sees Z commit what appears to A to be a murder. A, in the exercise, to the best of his judgment exerted in good faith, of the power which the law gives to all persons of apprehending murderers in the fact, 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. |
Liability of Private Person:
Private persons acting under Sections 38 (Ad to person, other than a police officer, executing warrant), 43 (Arrest by private person and procedure on such arrest), 72 (Warrant to whom directed), and 73 (Warrant may be directed to any person) of the Code of Criminal Procedure are protected under this Section.
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Conclusion:
Section 76 deals with those class of cases where person by reason of mistake (or ignorance) of the fact, in good faith, considers himself bound by law to do an act, while, Section 79 deals with those class of cases where person by reason of mistake of fact considers himself justified by law to do the act in a particular way. In Section 79 there is real or supposed justification in doing a particular act. Section 79 excuses a person from criminal liability who, into good faith, commits an act, provided that his act is justifiable by law or he believes himself that his act to be justified by law.