Act Done With Consent | Overview
- Consent Meaning
- Provisions under IPC, 1860 for the acts done with Consent
- Misconception of Fact
- Absence of Knowledge
- Express or Implied Consent
The article discusses the Act Done with Consent under IPC. Chapter IV of the IPC, entitled ‘General Exceptions’, containing sections 76 to 106, exempts persons from criminal liability. An accused’s act or omission, even if prima facie comes within the scope of a provision defining a crime or imposing punishment for it, is not an offence if it is covered by any of the provisions throughout Chapter IV.
As a general exemption, sections 87 to 93 of the Code deal with consent. Sections 87 and 91 lay down the law of ‘consent’ as a defence, while ss 88, 89, 92 and 93 lay down the law of protection for the harm caused, with or without ‘consent’ in good faith for the gain of the sufferer. So s 90 specifies what the Code does not object to.
I. Consent Meaning
In general, consent means something done intentionally or purposefully and by free will. It involves a deliberate intelligence exercise based on the knowledge of the value and legal effect of the act. It is an act of thought, followed by deliberation, balancing the mind on each hand, as in a circle, the good and the bad. It assumes three things— a physical power, a mental power, and their free and serious use.
Consequently, consent obtained through intimidation, force, mediated imposition, circumvention, surprise or undue influence is merely an illusion rather than a deliberate and free act of the mind. There is no definition of the word ‘consent’ in the IPC.
II. Provisions under IPC, 1860 for the acts done with Consent
Section 90 in The Indian Penal Code
“Consent is known to be given under fear or misconception.—A consent is not such a consent as it intended by any section of this Code if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.
—if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.
—unless the contrary appears from the context if the consent is given by a person who is under twelve years of age.”
Section 90 states that consent is given by a person’ under fear of injury’ or ‘under the misconception of fact’ is not at all ‘consent’. Similarly, consent given by a ‘person of unsound mind’ or an intoxicated person who is unable to understand the nature and consequences of the consented act and a person under the age of 12 is not a valid consent, unless the contrary appears from the context.
Finally, Section 90 specifies that consent is required to be a basis for escaping criminal responsibility to be a true consent and not vitiated by intimidation, deceit or immaturity. Obviously, consent obtained through threats or violence is not a genuine consent given as it is a consent given ‘under fear of injury.’
In order to obtain his consent, it is not necessary for the consenter to be put’ under fear of injury.’ Furthermore, consent gained by putting any other individual he is concerned with’ under fear of injury’ is not true consent.
Misconception of Fact
In Poonai Fattemah case, death was caused by a venomous snake under an illusion created by the snake charmer’s portrayal that the bite would do no harm, it was argued that the consent was not a true consent because it was granted on the grounds of the snake charmer’s promises.
A misconception of fact may arise from fraud or misrepresentation of facts. Consequently, consent given to misrepresentation of facts does not allow a defence to be given to the person acting upon such consent. Nevertheless, misrepresentation of facts, in order to bring it within the scope of s 90 must be associated with deception or deceit.
In Jayanti Rani v. State of West Bengal , it was held that “consent for sexual intercourse obtained on a promise to marry in the future and its failure by the accused cannot be said that it was induced by misconception of fact unless from the very beginning the accused never really wanted to marry the girl who consented to sexual intercourse until she became pregnant on the promise of marriage”.
Two requirements for the enforcement of the first part of s 90 must be met, namely, firstly, that consent was given on the grounds of ‘ fear of injury ‘ or ‘ presumption of reality, and secondly, that the defendant was aware of the fact or had reason to believe that consent was given on the grounds of fear or misconception.
According to the IPC, consent granted by a psychotic or drunken person and by a child (under the age of 12) is not acceptable. It does not, however, absolve the consented act’s doer. Clearly, the law was based on the premise that a lunatic, intoxicated person and an infant are unable to understand the effects of the consented act.
Nevertheless, for the intent of the IPC, s 90 cannot be viewed as an exhaustive definition of consent. Not only did the SC and HCs go through the phraseology of s 90, but they travelled a wider field, guided by the word ‘ consent’ etymology.
Section 87 in The Indian Penal Code: Act not intended and not known to be likely to cause death or grievous hurt, done by consent– Nothing which is not intended to cause death or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm.
A and Z agrees to fence with each other for amusement. This agreement implies the consent of each to suffer any harm which, in the course of such fencing, may be caused without foul play; and if A, while playing fairly, hurts Z, A commits no offence.”
Sections 87, 88 and 89 of the Code deal with different aspects of consent-related acts, which would amount to offences, but for the consent given.
Section 87 begins with the words ‘Nothing that is not meant to cause death or serious harm’. Such words mean that mens rea or motive to cause death or grievous harm on the part of the doer should be completely absent to achieve the section’s value.
It does not allow a man to consent to anything intended, or to be known as his own death or grievous hurt. It does not warrant either malicious death or grievous harm. This imposes an utter or definitive prohibition on deliberate killing by agreement. Nevertheless, the purpose may be to cause hurt, which is short of severe harm.
In Bishambar v. Roomal, a girl was molested by the complainant. Approximately 200 people were determined to punish him armed with lathis. Three local people interfered at that time and tried to bring about a solution. We were gathered before the panchayat along with others who were the girl’s family. The plaintiff decided to request the panchayat’s order.
The panchayat decided to take him around the village with a blackened face and hit him with a shoe to prevent any injury to the complainant. The panchayat’s decision was thus carried out, the three intervening persons and the other girl’s relatives were prosecuted for crimes punishable under ss 323 and 503 of the Code.
The Allahabad High Court held that “the accused were entitled to the benefit under ss 81 and 87 of the Code. In a case like this when the accused persons acted bonafide, without any criminal intent in order to save the complainant from the serious consequences resulting from his own indecent behaviour, with his consent, obtained in writing and for his benefit, then it may not amount to an offence.”
Absence of Knowledge
Section 87 not only stipulates that there is no intention to cause death or grievous hurt, but also that the doer is not aware that the act is likely to cause death or grievous hurt. It may be remembered that the suspects involved had no intention of causing death or grievous hurt in the case of the dao accident and in the case of the wrestling match, nor were they even remotely aware that their behaviour was likely to cause death or grievous hurt.
If any harm is caused without foul play in the process of such fighting, then the act’s doer performs no crime. However, on the other side, instead of a fencing match, if it was a fight to be fought with charged weapons, the essence of the arms utilized clearly shows that the parties intended to die and that any harm was done by it, then the party doing it was responsible irrespective of the consent given to the duel.
Therefore, the applicability of the clause cannot be determined by the possibility of consent given or refused. Of instance, if a person asks another person to kill him, the person to whom the request was made has no right to kill him with impunity, just because there was an application for the same thing. If he were to do so, he would be liable because at the moment the person was killed, he had both the desire and the ability to kill him, even though it was accomplished with the person’s consent.
III. Express or Implied Consent
Consent may be express or implied under the section. So long as there is consent and the said is voluntary, it should not be conveyed in so many terms or structured explicitly. In so far as criminal law is concerned, the term implied is used to mean or in any way signify: (1) by acts and behaviour; or (2) presumed, but never given or anyway meant.
When a customer enters a shop and picks up displayed goods for sale, consent is implied to enter the shop, handle the goods and, if necessary, purchase them. This denotes through actions and behaviour.
The question of whether or not consent has been given is always a matter of fact to be determined by leading evidence before the court of the trial. Therefore, concerns as to whether ‘consent’ has been received without the knowledge or by mistake or deception, or whether there has been a prior implied consent, are empirical issues that must be proven by the defendant who wishes to take advantage of s 87,88 and 89.
- KI Vibhute, PSA Pillai’s CRIMINAL LAW, 11th ed, 2012, Lexis Nexis.
- Ratanlal & Dhirajlal, THE INDIAN PENAL CODE, 35th ed, Lexis Nexis.
- KD Gaur, CRIMINAL LAW CASES AND MATERIALS, 5th ed, Lexis Nexis.
 (1869) 12 WR (Cri) 7.
 (1984) Cr LJ 1535 (Cal)
 (1975) 77 Bom LR 218