This article will provide further information on the chapter of General Exceptions. In this article we will talk about section 81 to 84 of the IPC.
Sec 81 of IPC recognises the doctrine of necessity as a defence against criminal liability. It is based on two maxims:
- “Quod necessitas non habet legem” which means necessity knows no law.
- “Necessitas vincit legem” which means necessity overcomes the law.
Necessity in legal context involves a judgment that evil in obeying a law is greater than evil of breaking it. In other words the law has to be broken to achieve a greater good.
Sec 81 states that Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property.
Eg: A, in a great fire, pulls down houses in order to prevent the conflagration from spreading. He does this with the intention in good faith of saving human life or property. Here, if it be found that the harm to be prevented was of such a nature and so imminent as to excuse A’s act, A is not guilty of the offence.Ingredients of sec 81:
- The act must be done without any criminal intention.
- It must be done in good faith.
- It must be done for the purpose of preventing or avoiding other harm to person or property.
- It is a question of fact in such a case whether the harm to be prevented was of such a nature as to justify the risk of doing the act.
2. ACT DONE BY CHILD
Sec 82 and 83 of IPC deals with offences committed by child. The Constitutional basis for different provisions for children is Art 15 (3), Art 39 (e) and (f) of Indian Constitution. Art 15 (3) empowers the state to make special provisions for women and children. Art 39 (e) and (f) are the Directive Principles of State Policy which provides that children should be given opportunities and facilities to develop in a healthy manner.
Sec 82 of IPC states that a child under seven years of age is not liable for offence. Law presumes that a child below seven years is ‘doli incapax’, i.e. he lacks the adequate mental ability to understand the nature and consequences of the act and thereby an ability to form the required mens rea. Sec 82 gives total immunity from criminal liability to a child who is below seven years of age. Sec 82 states that nothing is an offence which is done by a child under seven years of age.
Sec 83 of IPC deals with an act of child who is above 7 years and under 12 years of age.
Sec 83 states that :- Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.
Ingredients of sec 83:
- The act must be done by a child.
- The child must be above 7 years and under 12 years of age.
- The child must not have attained sufficient maturity to understand the nature and consequences of his act.
Maturity of Understanding:
Sec 83 states that when a person is above 7 years and under 12 years, the court has to ascertain if the child has sufficient maturity of understanding the nature and consequences of his conduct. The word ‘consequences of his conduct’ do not mean penal consequences but the natural consequences of his act. Proof of attainment of sufficient maturity can be arrived at by the court on the consideration of all the facts and circumstances of the case. It can be inferred from the nature of the act and his subsequent conduct and appearance in the court.
A study of Juvenile Justice (Care and Protection of Children) Act, 2015 is essential for complete understanding of the law relating to criminal liability of children. It deals with the act of a child who has not completed eighteen years of age. The Act states that Children who are alleged or found to be in conflict with law are produced before a Juvenile Justice Board (JJB).The Act has separated the offences into three categories:
Petty offences: It includes the offences for which the maximum punishment under the IPC or any other law for the time being in force is imprisonment up to three years;
Serious offences: It includes the offences for which the punishment under the IPC or any other law for the time being in force, is imprisonment between three to seven years;
Heinous offences: It includes the offences for which the minimum punishment under the IPC or any other law for the time being in force is imprisonment for seven years or more. It states that when a child below the age of sixteen years has committed any offence, than the Board may:
- allow the child to go home after advice or admonition
- direct the child to participate in group counselling
- order the child to perform community service
- order the child or parents or the guardian of the child to pay fine
- direct the child to be sent to a special home, for such period, not exceeding three years.
If heinous offence is committed by a child between the age of 16-18 years, then the child is first produced before the Juvenile Justice Board. The Board is to conduct a preliminary assessment. The assessment is basically to assess the capacity of the child to commit the offence and whether the child understands the consequences of the alleged offence. After the assessment the Board decides whether the child needs to be tried as an adult or not. So in such a case the child between the age of 16-18 years who has committed heinous offence can be tried as an adult.
It is an important principle of criminal law that in order to hold a person legally responsible for a crime, it is necessary that the person who did the act had sufficient mental capacity to form a criminal intent. Insanity is a state of mind in which the person does not know that his acts are right or wrong. Therefore, a person who is suffering from insanity would not be responsible for his criminal acts as per the criminal law. It is based on the maxim, “furiosus solo furore punitur” which means that a mad man is punished by his madness alone.
Sec 84 states that :- Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.
Ingredients of sec 84:
- The accused must have been suffering from unsoundness of mind at the time of commission of the act.
- The accused because of unsoundness of mind is incapable of knowing the nature of his act.
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