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Mistake of Fact And Law | Indian Penal Code, 1860 | Overview
- Mistake Of Fact And Law
- Nature of Mistake to be considered as an Excuse
- Mistake or Ignorance of Law
- Good Faith
- Justified by Law
- Bound by Law
- Acts done under the order of a Superior Authority
This article titled “Mistake of Fact And Law” provides an overview of Section 76 and 79 of the Indian Penal Code, 1860.
Certain persons are immune from the operation of the criminal law. 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 other words, an offender who has committed an actus reus with the required mens rea may escape liability because he has a “general exception” to offer as a response to the prosecution. Ultimately, the ‘general exceptions’ limit and override the Code’s offenses and penal provisions. The title ‘General Exceptions’ is used to indicate that all offenses are subject to these exceptions.
There is a range of restrictions on each punitive provision and no crime can be complete without exceptions. According to Blackstone, “general exceptions are defences that can be regarded as those circumstances where the prosecution has been unable to prove all the requirements of liability beyond a reasonable doubt.” 
I. Mistake Of Fact And Law
Section 76 in 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.
(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.”
Section 79 in 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.
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.”
A plain reading of these two sections, analogous to each other, reveals that they lay down the law of error as an exception to criminal liability. They also, by implication, distinguish between error of fact and law and argue that a wrongdoer is exonerated by the former and not the latter.
Section 76 protects a person from criminal liability who is bound by law to do something and do it, or who claims in good faith that he is bound by law to do something and do it because of a misunderstanding of fact. Whereas section 79 absolves a person who believes in good faith that his act would be justified by law because of the error of fact and not because of the error of law.
Though similar and similarly resistant, these two provisions are distinct from each other. Under s 76, a person believes that he/she is bound by law to do something and thus feels that he/she is under legal compulsion to do something, while under section 79 he/she acts because he/she believes that he/she is justified in doing so and thus believes that his / her action is justified by law.
II. Nature of Mistake to be considered as an Excuse
Mistake as a factor of attenuation imply a rule that when a person knows or mistakes the existence of the relevant events, he does not see or anticipate the consequences of the act unlawfully. Therefore, his trial should proceed with the fiction that the facts were just as he had wrongly thought them to be, not so. A court has its guilt to be determined by the “believed” facts and not the “real” facts.
The essentials of mistake for it to be regarded as an excuse are:
- the condition of events believed to exist, if real, caused the act done;
- the mistake must be reasonable; and
- the mistake must apply to fact and not to law.
In Jaswantrai Maniklal Akhaney v State of Bombay, it was held that “the presence of a specific ‘ purpose ‘ or ‘ foresight ‘ which allows criminal law to make a person guilty rather than actus reus is falsely negative. Mistake as a factor of absolving allows a judge to evaluate the wrongdoer’s behaviour in mind.”
The first essential is that the mistake must be of such a nature that if the supposed conditions were true, they would have stopped the offender from being held accountable for doing what he did. For example, the claim that the attacker did not know his official position will not protect him from criminal liability on charges of attacking a constable in performance of his duties.
The second essential is that the mistake must be reasonable. Superstitious faith is not going to be a shield. Even people who break the law as a result of a belief that they obey a divine command were considered to be an unreasonable act.
The third essential is that the mistake must relate to fact and not to law, because ignorance of the law does not constitute an excuse.
III. Mistake or Ignorance of Law
The sections’ defence extends only to factual error and not to law error. This is evidently based on the excuse of the English common law maxim – ignorantia facti doth excusat, ignorantia juris non excusat, which means ignorance of fact can be excused but not the ignorance of law. However, the logical distinction between a factual error and a legal error is not easy to draw.
“Mistake of law, nevertheless, may operate as a mitigating factor.” This was held in the case of State of Maharashtra v MH George .
In Emperor v. Nanak Chand , it was held that “If a statute provides that certain knowledge-involving elements of law on the part of the accused is an essential ingredient of the offence, mistake of law, in good faith, may be a good defence to a charge of a criminal offence”.
One of the essential ingredients that an offender requires to get ss 76 and 79 defense 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 in ‘good faith’ which is 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 Harbhajan Singh v State of Punjab, it was held that “The element of honesty which is prescribed in the General Clauses Act 1897 is not incorporated in section 52 of the IPC. Under the General Clauses Act, the stress is on the moral element of honesty and right motive. If the intention is honest, then even if the act was negligent, it is deemed to be done in good faith” .
As articulated by the Madras HC in Re Ganpathia Pillai, “under the IPC, the emphasis is on whether the person has done an act with due care and attention. So, if a person, howsoever honest in his intention, blunders, he cannot get the protection under the IPC because apart from an honest intention, he is also expected to act with due care and caution.”
III. Justified by Law
Section 79 allows for the defence of acts justified by law or that are legitimately justified by law by mistake of fact. Because of his bona fide conviction, though misguided, it exonerates the doer, and removes his guilt.
This comes into play only when a person is accused of having real or implied legal justification in doing the act and that the same has been undertaken with the intention of upholding the rule in good faith to the best of his judgement. In view of the provisions of s 79, an act wholly justified by law does not constitute an offense at all.
In State of Andhra Pradesh v. N Venugopal, all the accused were police officers. One of the three was a sub-inspector, the other was a head constable, and the third was a constable. They arrested an individual on suspicion of having received some property and being involved in breaking the building.
Three days later, a number of injuries left the arrested person dead. The suspects have been charged with crimes under the IPC’s ss 348,331 and 201. The prosecution case was that for the purpose of obtaining a confession from him, the deceased was arrested, unlawfully imprisoned and tortured. When the suspected police discovered the wounds were severe, they took the victim from the police station and put the body away, where it was finally found.
The accused was sentenced by the trial court. The high court, on appeal, agreeing that whatever a police officer does is justified in investigating a crime, set aside the sentencing issued by the trial court. The state preferred an appeal to the Supreme Court as opposed to the High court’s order.
The Supreme Court ruled that there was no connection to the investigation process to the act of beating or confining or sending away an injured person. This overturned the high court’s decision and convicted the guilty.
Bound by Law
According to section 76 IPC, actions committed by a person bound by law or by mistake in fact are shielded from criminal liability. The section’s illustrations explain the meaning of the law-bound word.
Acts done under the order of a Superior Authority
Any act performed under superior authorities’ instructions is not covered. Where the higher authority’s directives are unconstitutional, the delegated officer will not be exempted from responsibility. When a policeman shoots and kills an officer, he cannot escape criminal responsibility as it is obviously illegal for the order to be ordered and he has noticed the illegal nature of the order.
In State of West Bengal v. Shew Mangal Singh, “the case of the prosecution was that the deceased and his brother were shot dead by the police at point blank range and brutally murdered. According to the defence version, the accused police officers were on patrol when they were attacked by a mob.
When an Assistant Commissioner of Police was injured in the mob violence, orders were given by the Deputy Commissioner of Police to open fire, he accused constables were bound by law to obey the orders of the superior officer. Both the Calcutta High Court and the Supreme Court held that the situation warranted and justified the order to open fire and hence, the accused was entitled the protection of s 76.”
In Re Charandas  case, it was held that “the IPC does not recognize the mere duty of blind obedience of a soldier to his superior authority. He will not be absolved from liability unless he shows that either the order was legally binding on him or the circumstances made him reasonably believe, in good faith, that he was bound by the law to obey it.
A soldier who fired a mob at the order of his commanding officer could not obtain immunity from criminal responsibility simply on the ground that he obeyed the order of his superior authority.”
In Dakhi Singh v State , the accused arrested the suspected thief, and the deceased resisted the arrest. The accused used force that led to his death. While section 46 CrPC, states that a police officer may use all appropriate means to carry out the arrest, it also states that it does not give the right to cause death to a person who is not charged with an offense punishable by death or life imprisonment.
So, as the deceased was only suspected of theft, it was held that sections 76 and 79, IPC, did not justify shooting the dead person.
- 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.
 Blackstone’s Criminal Practice 2003, Peter Murphy (ed), Oxford, 2003, p 34.
 AIR 1956 SC 575.
 AIR 1965 All 161
 AIR 1923 Mad 171
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 AIR 1943 Lah 208
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 AIR 1981 SC 1917
 AIR 1950 East Punjab 321.
 AIR 1955 All 379