Doctrine of Necessity | Sec 81 Indian Penal Code

Introduction

The Black’s Law Dictionary defines the word ‘necessity’ as ‘Controlling force; irresistible compulsion; a power or impulse so great that it admits no choice of conduct.’

When a defendant, in order to prevent a greater harm from taking place, commits a crime or a criminal act during an emergency situation like such, the defence of necessity is applied, wherein the defendant is excused or not held liable for the crime committed by him because his act was justified as he or she had the intention to prevent a situation which would cause a greater harm as compared to the criminal act committed by him or her. Thus, criminal defendants who have intentionally violated the law, may claim that they have not committed a criminal act due to the abovementioned reason.

Doctrine Of  Necessity In Indian Criminal Law

Chapter IV of the Indian Penal Code (hereinafter referred to as the ‘IPC’) provides the General Exceptions in which Section 81 states that –

Act likely to cause harm, but done without criminal intent, and to prevent other harm.—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.

Explanation. —It is question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm.

The person who has been accused of committing a criminal act, should have done that act in good faith in order to prevent a greater harm, without having the intention of causing harm and merely with the knowledge that his act is likely to ensue and he will not be held responsible for the result of his act. But, where the positive evidence against the accused is clear, cogent and reliable, the question of motive is of no importance.[1]

In the prevention of harm, the accused is faced with two choices both resulting in some harm and of sheer necessity to avoid a greater harm he has to commit an act which would otherwise be an offence. The test really is like this: there must be a situation in which the accused is confronted with a grave danger and he has no choice but to commit the lesser harm, may be even to an innocent person, in order to avoid the greater harm. Here the choice is between two evils and the accused rightly chooses the lesser one.[2] Thus, where a Chief Constable not in his uniform came to a fire and wished to force his way past the military sentries placed around it, was kicked be a sentry, it was held that as the sentry did not know who he was, the kick was justifiable for the purpose of preventing much greater harm under this sections and as a means of acting up to the military order.[3] Similarly, where a village magistrate arrested a drunken person whose conduct was at the time a grave danger to the public, it was held that he was not guilty of an offence by reason of the provisions of this section or section 96 or 105.[4]

Leading Case Laws

Regina v. Dudley and Stephens[5]

In this case the defendants, that is, Thomas Dudley and Edwin Stephens and a cabin boy named Richard Parker were cast adrift in a boat following a shipwreck without food and water. On the 18th day, when they had been seven days without food and five days without water, Dudley proposed to Stephen that lots should be cast who should be put to death to save the rest, and that they afterwards thought it would be better to kill Parker so that their lives could be saved. So, on the 20th day, Dudley with the assent of Stephens, killed Parker and both of them fed on his flesh for four days., after which, a vessel rescued them and they were charged with murder.

It was held that killing an innocent life to save one’s own does not justify murder even if it is committed under extreme necessity of hunger. So, the defendants were sentenced to death, but it was later commuted to six months imprisonment. And in R v Howe[6], the House of Lords affirmed the case of Dudley and Stephens.

United States v. Holmes[7]

In 1842, a longboat containing passengers and members of the crew of a sunken American vessel was cast adrift in the stormy sea. To prevent the boat from being swamped, members of the crew threw some of the passengers overboard. In the trial of one of the crew members, the court recognized that such circumstances of necessity may constitute a defence to a charge of criminal homicide, provided that those sacrificed be fairly selected, as by lot. Because this had not been done, a conviction for manslaughter was returned.

R v Bourne[8]

In this case, a young girl was pregnant because she was raped and the defendant, who was a gynaecologist, had performed an abortion, with the consent of her parents because he was of the opinion that the rape victim could die if permitted to give birth. The defendant was found not guilty of “unlawfully procuring a miscarriage” following a direction from the trial judge to the jury that the defendant did not act “unlawfully”, rather he acted in good faith while exercising his clinical judgement.

Conclusion

Thus, the defendant under no circumstances should intentionally cause harm and harm should be caused only during grave necessity in order to prevent a greater harm which might have been caused in case the minor harm had not been committed by the defendant.


[1]Gurucharan Singh v. State of Punjab, AIR 1956 SC 460 : 1956 CrLJ 827.

[2] Southwark London Borough Council v. Williams, (1971) Ch 734, (1971) 2 All ER 175.

[3]Mayer Hans George, (1964) 67 Bom LR 583, AIR 1965 SC 722.

[4] Gopal Naidu, (1922) 46 Mad 605 (FB).

[5](1884) 14 QBD 273.

[6][1987] AC 417.

[7]26 F. Cas. 360 (C.C.E.D. Pa. 1842).

[8][1939] 1 KB 687.

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