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QUESTION| “Law recognizes that ‘mistake’ must be in good faith.” In this backdrop, explain the defence of ‘mistake’ contained under General Exceptions of the Penal Code.
Importance of this question : Indian Penal Code Question
QUESTION POSTED ON | 23.10.2021
MODEL ANSWER WILL BE POSTED ON | 24.10.2021
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MISTAKE OF FACT AND LAW :
Sections 76 and 79 of Chapter-IV (General Exceptions) of the Indian Penal Code, 1860 explain the provisions about “Mistake of Fact” and “Mistake of Law”.
These provisions are based upon the common law maxim “Iqnorantia facti doth excusat; Ignorantia juris non excusat.” (Ignorance of fact is an excuse, but ignorance of law is not excused.) .
Mistake of fact is a good defence in criminal law, which is explained in two Sections 76 and 79. Both of these Sections are included in General Exceptions (Chapter-IV).
BOUND BY LAW : Section 76 of the IPC says that 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.
EXAMPLES : (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.
JUSTIFIED BY LAW : Section 79 which says that 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.
EXAMPLES : 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.
1. FACTS SHOULD HAVE BEEN BELIEVED BY HIM : To avail the protection under section 76 and 79, the facts should have been believed by him.
2. ACT SHOULD BE REASONABLE : Mistaken act must be reasonable to avail the protection under section 76 and 79.
3. MISTAKE OF FACT, NOT MISTAKE OF LAW : A mistake which takes place when some fact which really exists is unknown; or some fact is supposed to exist which really does not exist.
4. GOOD FAITH : The words “good faith” means “the act done with due care and attention”. They also include the genuine belief of the person. The burden of proof lies upon the person who wants to take the shelter of good faith. Good faith is a question of fact.
Section 57 of IPC says about good faith where essential ingredient is due care and attention .
Even if a person is honest in his intentions, he is expected to act with due care and caution. The definition of good faith under the General Clauses Act is not applicable to an offence under the IPC Due care denotes the degree of reasonableness in the care sought to be exercised.
In State of West Bengal v. Shew Mangal Singh, Supreme Court held that Due care and caution principle requires three factors, firstly, the nature of the act committed by the accused; secondly, its magnitude and importance, and thirdly, the facility a person has for the exercise of the care and attention.
