1

NATIONAL LAW UNIVERSITY ODISHA

CRIMINAL LAW – I

Project on:

Mistake as a defence in common law.

Submitted to:

Asst. Prof. Ms. Suman Dash Bhattamishra

Submitted by: Ankita Sen. (2013/BBA.LL.B/010)

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TABLE OF CONTENTS:

RESEARCH METHODOLOGY: ............................................................................................. 3

INTRODUCTION: .................................................................................................................... 5

1. MISTAKE - A Conceptual Understanding: ........................................................................... 6

2. ADMISSIBILITY OF MISTAKE AS A VALID DEFENCE IN CRIMINAL

JURISPRUDENCE: ................................................................................................................... 8

I. Mistake of Law: .............................................................................................................. 8

A. MISTAKE OF LAW IS NOT A VALID DEFENCE- ............................................ 8

B. LEGAL POSITION IN INDIA ............................................................................... 9

II. Mistake of Fact: ........................................................................................................... 9

A. Essential Ingredients In The Law Relating to Mistake of Fact- ................................. 10

B. SITUATIONS TO ILLUSTRATE THE USAGE OF ‘GOOD FAITH’- ................... 12

3. MISTAKE AS DEFENCE IN CASES OF STRICT LIABILITY: ..................................... 13

I. Concept and Rationale Behind Strict Liability: ................................................................ 13

II. Mistake Of Fact As A Defence In Strict Liability Cases: Position in India.................... 13

4. COMPARITIVE POSITIONS OF MISTAKE AS A DEFENCE IN COMMON LAW

COUNTRIES: .......................................................................................................................... 14

I. Britain: .............................................................................................................................. 14

II. Australia: ......................................................................................................................... 14

III. Canada: ...................................................................................................................... 14

IV. America: .................................................................................................................... 15

5. MISTAKE OF FACT IS A VALID DEFENCE IN INDIA: JUDICIAL PRECEDENTS: 16

CONCLUSION: ....................................................................................................................... 19

BIBLIOGRAPHY: ................................................................................................................... 20

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RESEARCH METHODOLOGY:

Objective:

The aim of this write up has been to identify and gauge the status of mistake as a valid

defence in common law. Also, the objective has been to study the various case laws in order

to understand the practical applicability of the defence in criminal cases.

Scope and Limitations:

Through this write up, the author has tried to study the different elements of mistake as a

defence. It has also tried to get an overview of the position of the defence in not only India,

but also in other common law countries. However, the write up lacks an extensive overview

of the legal provisions of different countries that validate mistake as a defence. It also lacks

an extensive study of foreign cases regarding mistake as a defence.

Research Question:

Whether or not mistake of fact and mistake of law both are applied by Courts as a defence to

prevent criminal liability of the accused.

Hypothesis:

No, mistake of law is no defence in criminal law, whereas mistake of fact is not used as a

valid defence in criminal law.

Sources:

The author has used both primary sources and secondary sources for the research. The

primary sources include mainly the Indian Penal Code, the General Clauses Act, various

Indian as well as foreign cases. The secondary sources include mainly books by prominent

authors, research papers and journals on criminal law.

The research is purely doctrinal in nature.

Mode of Citation:

The author has followed a uniform mode of citation.

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Chapterization:

A brief overview of the chapters that have been included in the write up has been given

below-

1. Mistake- A Conceptual Understanding:

It deals with the basic concept of mistake as a defence, mentioning the provisions of the

Indian Penal Code, 1860 that deal with it. It also classifies between mistake of facts and

mistake regarding the law.

2. Admissibility of Mistake As A Defence In Criminal Jurisprudence:

This chapter discusses separately the concepts of mistake of facts and mistake of law. Under

the head of mistake of law, it discusses its validity as a defence, the rationale behind

ignorantia juris, critics of the maxim and the legal position of mistake of law as a defence in

India.

Under the head mistake of fact, the theory of admissibility of mistake of fact as a valid

defence, the essential ingredients contained in Section 76 and Section 79 of the Indian Penal

Code, 1860, also the discussion between the two have been discussed.

3. Mistake As A Defence In Cases Of Strict Liability:

This chapter initially discusses the concept and rationale behind strict liability, followed by a

study of the legal position in India of mistake as a defence in strict liability offences.

4. Comparative Positions Abroad:

This chapter deals with the status of mistake as a defence in common law countries. The

present write up deals with the study of a few common law countries, namely, Britain,

Australia, Canada and America.

5. Mistake of Fact and Judicial Precedents:

This chapter has tried to bring to light a few landmark cases in order to understand the

practical application of the theoretical idea of mistake as a defence as discussed in the earlier

chapters.

Conclusion:

It contains a brief summary of the contents that has been dealt in all the chapters in the write

up.

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INTRODUCTION:

The Indian Penal Code, along with other criminal systems all over the world provide certain

excuses, justifications and defences. Such excuses and justifications are nothing but certain

means of prescribing and proscribing certain behavioural pattern and also serve as means for

considering an individual innocent or guilty. In serving this purpose, a justification, defence

or excuse functions on a principle of exculpation in order to find out whether the accused is

guilty or innocent. This is to say that even though the accused has committed the crime or

done everything to commit the crime, or has caused harm to another, the defence would

release him of all charges, in spite of such commission of crime. In this light, it must also be

mentioned that defences may be excusable, justifiable and partial in nature.

Excusable defences are the ones that totally excuses the commission of the crime. Justifiable

defences, on the other hand, are such that they do not excuse the commission of the crime

prima facie, but will only do so, if in the Court of law, it can be shown that even though the

accused committed the crime, there is some justification to it. Such justification generally

comes in the form of certain external circumstances mainly as threat from third parties. In

case of justifiable defence, necessary components of mens rea and intention have been met,

but are justified. Whereas, in excusable defence, mens rea does not generate. Partial defences

(like, sudden and grave provocation) are such defences in which, the law does not encourage

the commission of the crime, but shows pity on the offender and accepts the defence.

Mistake is an excusable defence. No mens rea generates in case of a mistake. This is

primarily because, the law considers that, in the absence of knowledge of the circumstances,

it is not possible to generate a guilty mind, the act committed is nothing but a mere actus reus,

done under a mistaken belief of fact, without the required mental element. Hence, many

critics are reluctant to consider mistake as a separate defence, rather consider the situation as

one lacking the element of mens rea, hence not resulting in conviction.

The present write up however, deals with mistake as a distinct defence and its position in

common law.

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1. MISTAKE - A CONCEPTUAL UNDERSTANDING:

The Indian Penal Code, 1860 recognizes ‘mistake’ as a defence in avoiding liability after the

commission of offences. Like, most common law nations, in India too, mistake is considered

to be an excusable defence1 because the person committing the offence had no intention to do

the same, nor could foresee the possible legal effects of the act. The question of mistake

generally arises when conflicts exist between existent fact situations and the impressions on

the mind of the accused which is subjective in nature.2 A particular act that would otherwise

be a crime, might be excused by the Court if it is satisfied that the concerned person or the

accused has committed it by virtue of a mistaken, but honest belief, about the existence of a

set of facts which if true, would have made the act of the accused illegal.3 The burden of

proving such mistake however, rests on the accused to the extent that, unless some form of

evidence has been brought before the Court to prove the same, the Court would not consider

the presence of any mistake.4

However, the difference lies in the two closely linked yet parallel concepts of ‘mistake of

facts’ and ‘mistake of law’. While, the former does act as a valid defence as enumerated

under Chapter IV- General Exceptions of the Indian Penal Code, 1860, the latter does not

stand as a valid defence. In general terms, the word ‘mistake’ in the context of defence in

criminal jurisprudence, refers to the mistake in fact and not in law.

Section 76 and Section 79 of the Indian Penal Code, 1860 deals with situations of ‘mistake of

fact’ as a defence in criminal law. In the view of a layman, mistake of fact would refer to a

situation in which, the accused was unaware of or was ignorant about the facts of the

situation in which he acted. In such a situation, a mistake, provided that it was one of facts,

and the facts match the facts that was assumed by the accused , it would act as a defence to

1Indian Penal Code, Excusable Defences,

http://www.hrdiap.gov.in/fcg2/studymaterial/week2/INDIAN%20PENAL%20CODE,%201860.pdf, last visited

on 20th

March, 2015. 2 Why Doesn’t Ignorantia Juris Excuse?, Ankit Majumdar, Nandan Kamath,

https://www.nls.ac.in/students/SBR/issues/vol10/1002.pdf, last visited on 20th

March, 2015. 3The Defence Of Obedience To Superior Orders In International Law, Yoram Dinstein 33, 1

st Ed. 2012, Oxford

University Press,. 4 Section 105, Indian Evidence Act, 1872.

7

the crime which he has been charged with.5. Such a mistake is not considered to be a defence

in reducing or nullifying liability in a criminal offence.

5Textbook on the Indian Penal Code, Krishna Deo Gaur 76, 4

th Ed. 2011, Universal Law Publishing Co.

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2. ADMISSIBILITY OF MISTAKE AS A VALID DEFENCE IN CRIMINAL

JURISPRUDENCE:

I. Mistake of Law:

A. MISTAKE OF LAW IS NOT A VALID DEFENCE-

Rationale behind the theory- Ignorantia Juris

The discussion regarding a mistake of law in criminal jurisprudence must start with the

Common Law principle of ignorantia facti doth excusat, ignorantia juris non excusat, which

says that mistake as to facts may be an excuse, but mistake of law acts as no excuse. The

rationale behind application of the aforementioned principle is that if every person accused of

committing an offence is given the option of exercising the defence of mistake of law, it

would come as a difficult task for the prosecution to rebut it and prove that the one accused

was actually aware of the law.6 Hence, this would lead to a situation of ambiguity in the

criminal justice administration, making it impractable to render justice.

In the aforementioned situation, if the plea of the accused is accepted, effect has to be given

to the law as he thinks it to be. This would most likely lead to a violation of the ‘rule of law’.

According to the ‘rule of law’,

Rules of law are objective.

Particular people, in the form of authorized officials can declare such rules, only after

following a procedure.

The rules and their interpretations are binding in nature.

Hence, allowing the defendant to interpret the law based on his opinion and thus excusing

him from criminal liability, would thus act as a violation from the basic legal order.7

Critics to the maxim of ignorantia juris

The justification behind the application of the maxim, ignorantia juris non excusat might

seem well grounded and clear. However, it has faced criticism from well known critics all

over the world.

Glanville Williams has observed that the proposition of everyone knowing the law of the land

cannot be a true legal proposition, and would remain as a mere legal fiction.8 He raises the

objection that, a lawyer or a barrister has at his disposal, innumerable sources other than the

6 PSA Pillai’s Criminal Law, K I Vibhute, 12

th Ed. 2014 65, LexisNexis.

7Ignorance and Mistake In Criminal Law, Jerome Hall, vol 33, Issue 1, Article 1, Indiana Law Journal 1957.

8 Ibid.

9

bare statute to know and interpret the law. A layman however, without the access to any

added source, is expected not only to know the law, but also interpret it in a way that it

matches the way the Court would interpret it, for resolving any form of uncertainty or

ambiguity.9

Other critics like, Justice Maule has criticised the maxim in the case of Martindale v.

Falkner10

, saying that a presumption of every individual knowing the law would clearly be in

contrast with reason and a common sense.

B. LEGAL POSITION IN INDIA

Section 76 and Section 76 of the Indian Penal Code clearly point out that it is a mistake of

fact that can act as an excuse for avoiding criminal liability and not a mistake pertaining to

the law prevailing in the land.In India, mistake of law includes two facets of it- a mistake

about the existence of any form of law on the concerned subject and a mistake as to the

contents of the law on the particular subject.11

Moreover, because a law on a specific subject,

acts a sense of objectiveness to it, a citizen thus, should not be allowed to add a subjective

element to it due to his mistaken view regarding the law.12

II. Mistake of Fact:

Theory behind admissibility of mistake of fact as a valid defence-

Section 76 of the Indian Penal Code, 1860 deals with,

“Act done by a person bound, or by mistake of fact believing himself bound, by law.”

Section 79 of the Indian Penal Code, 1860, deals with,

“Act done by a person justified, or by mistake of fact believing himself justified, by law.”

It is the major function of a criminal justice system to not only implement and impose such

corrective and preventive measures that are able to prevent the incidence of criminal

offences, but also, focuses on correcting the mental status of a person who has been

responsible for the said offence. Had the law not taken care of the mental state of the accused,

it would lead to the conviction of any person irrespective of the fact that he might have

participated only negligently, unintentionally or unconsciously in the commission of the

offence. This therefore, would nullify the requirement of mens rea and would result in

9 Textbook Of Criminal Law, Glanville Williams, 2

nd Ed. 2009 451, Universal Law Publishing Company Pvt.

Ltd. 10

Martindale v. Falkner, (1846) 135 ER 1124. 11

King Emperor v. Tustipada Mandal, AIR 1951 Ori 284. 12

Clarkson and Cleating Criminal Law, CMV Clarkson, HM Keating and SR Cunningham, 6th

Ed. 2007 201,

Sweet & Maxwell Limited.

10

conviction based solely on the actus reus of the commission of the criminal act. In this

regard, the principle, actus facit reum nisi mens sit rea becomes important. It is in light of this

doctrine that mistake has gradually been accepted as an excuse to escape liability in criminal

jurisprudence. The principle lies- one is generally presumed to be aware of the nature and

consequences the act that he indulges in, hence, is found responsible for the same. However,

certain exceptions exist to the general rule, whereby one might be excused.13

Mistake with

the absence of the mental element, mens rea qualifies as such an extraordinary excuse.

Therefore, mistake of fact is considered as a valid excusable defence in the eyes of law. The

justification that lies behind exempting a person under a mistake of fact, from any criminal

liability, is grounded on the principle that one who is under a mistake as to the facts cannot

necessarily form an intention and hence is not held liable for the consequences of his deeds

done under such mistake.14

The incorporation of this is also found in the common law

doctrine, the Latin maxim, ignorantia facit doth excusat, ignorantia juris non excusat, which

essentially means, ignorance of fact is an excuse, but ignorance of law is no excuse. The first

application of this principle has been found in the case of R v. Levett15

, wherein the person

accused of an offence was released on the aforementioned ground. However, after the above

case, may developments and a series of evolutionary steps have followed in the law relating

to mistake of fact.

A. Essential Ingredients In The Law Relating to Mistake of Fact-

The purpose of Section 76 and Section 79 of the Code, is to provide immunity from

conviction to such persons who are ordinarily bound or justified by law to involve in a certain

act, but, have committed an offence due to ignorance of facts. However, in order to invoke

mistake as a valid defence, a basic requirement is the presence of good faith and diligence

while being under a mistaken belief as to the fact situation.

BOUND BY LAW-

Under Section 76 of the Indian Penal Code, one must be bound by law to perform the act

which he has performed under a mistake pertaining to the fact situation. Hence, it follows

that, if a person has to invoke the defence under Section 76, he must show that he has been

aware only of a particular set of facts that would support the belief that he was under a legal

13

Supra note 2. 14

The Indian Penal Code: Differences Between Justification and Excuses and Mistakes, Necessity and Accidents

as Defences, Sarica Ashok Reddy. 15

(1839) Cro Car 538.

11

compulsion to do the act.16

If however, he act done under mistake, is per se illegal, the

defence would not apply.

Justified by law-

In order to invoke Section 79 of the Indian Penal Code, one who has been accused of

committing a particular offence, must be able to show that the act that he has indulged in is

justified by law. As a valid defence in criminal jurisprudence, Section 79 exonerates the

accused based on his bonafide intention and belief, though a mistaken one, which deletes his

culpability.17

Good faith-

Both Section 76 and section 79 of the Indian Penal Code, 1860 contain the element of ‘good

faith’. Here, it must be mentioned that the Indian Penal Code defines ‘good faith’ as

“Nothing is said to be done or believed in ‘good faith’ which is done or believed without due

care and attention.”18

On the other hand, the General Clauses Act defines ‘good faith’ as,

“A thing shall be deemed to be done in "good faith" where it is in fact done honesty, whether

it is done negligently or not.”19

There lies a subtle distinction between the two in the fact that the former is an objective,

while the latter is subjective in essence. On one side, the argument lies that an act, in order to

be said to have been done in ‘good faith’ must have been done with due diligence and care as

would be reasonably expected of him, besides the presence of a bonafide intention. However,

this requirement of reasonableness has been discarded in common law.20

A blunderer who is

honest is always shielded by good faith as per the definition provided in The General Clauses

Act, 1897, but, under the Indian Penal Code, a blunderer even though acting honestly, will

not be shielded by good faith for his negligent acts.21

A careful study of cases in India will depict that the Courts have used the test of ‘good faith’

in a manner very subjective, thereby construing it more in consonance with the definition

given in the General Clauses Act, 1897, than the one in the Indian Penal Code, 1860. In the

case of Bonda Kui v. Emperor22

, the use of the ‘good faith’ test as a means of testing the

genuineness of the belief or idea that the accused held while committing the act under

16

Re Latifkhan, (1895) ILR 20 Bom 394. 17

PSA Pillai’s Criminal Law, K I Vibhute, 12th

Ed. 2014 70, LexisNexis.. 18

Section 52, Indian Penal Code, 1860. 19

Section 3, The General Clauses Act, 1897. 20

DPP v. Morgan, (1975) 1 All ER 8. 21

Re Ganpathia Pillai, AIR 1953 Mad 936. 22

AIR 1943 Pat 64.

12

mistake of the facts was seen. Also, in the case of State of Orissa v. Ram Bahadur Thapa23

,

the Court focussed more on the honest belief of the accused and not on his reasonableness of

his action, thereby moving closer to the definition as per the General Clauses Act, 1897. The

definition of ‘good faith’ as provided by the Indian Penal Code, 1860, contains in it an

element of due care. Due care basically is a measure of the reasonableness that is supposed to

exercise while taking care. The Indian Courts however, construe the presence of such due

care, not very objectively, importance is given to the position of the accused, his capacity, all

other circumstances surrounding the act,24

thus adding a tone of subjectivity to it.

Therefore, it is the honest belief of a person as to the facts of the case that fulfils the

requirement of ‘good faith’ as an important component of mistake under Section 76 and

Section 79 of the Indian Penal Code, 1860.

B. SITUATIONS TO ILLUSTRATE THE USAGE OF ‘GOOD FAITH’-

Cases in which one was implementing or carrying out the orders given to him by his superior,

thereby believing himself to be legally bound to do the particular act. In such cases, the

accused is acquitted by virtue of applicability of mistake as a defence under Section 76 of the

Code.25

Cases in which the accused has done a particular act in ‘good faith’ believing it to be justified

by the law. In such cases too, no conviction results and the accused is acquitted by virtue of

applicability of mistake as a defence under Section 79 of the Code.26

DISTINCTION BETWEEN SECTION 76 AND SECTION 79 OF THE CODE-

The distinction between Section 76 and Section 79 lies in the elements of a legal compulsion

in the former and a legal justification in the latter. Section 76 requires the person concerned

to be legally bound to do the particular act, whereas, Section 79 simply requires that the act

performed by the person must have a proper justification by law.

23

AIR 1960 Ori 161. 24

Ibid. 25

State of West Bengal v. Shew Mangal Singh, AIR 1987 SC 1917. 26

Chirangi v. State, 1952 CriLJ 1212 MP.

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3. MISTAKE AS DEFENCE IN CASES OF STRICT LIABILITY:

I. Concept and Rationale Behind Strict Liability:

At the very outset, it must be mentioned and must be kept in mind that the term strict liability

is conferred different meanings in different countries with different jurisdictions. In the

English jurisdiction, strict liability generally refers to offences which do not require the

element of mens rea. In other countries like, Canada and Australia, the meaning differs

slightly. However, for the purposes of this study, strict liability will be given the meaning as

per common consonance in criminal jurisprudence. It typically refers to an offence where

criminal liability is imposed without any evidence or proof of default by the defendant.27

Cases of strict liability are exceptions to the main ground of criminality that says that both

actus reus and mens rea need to be proved in order to prove the commission of an offence.

The main purpose and object behind the strict liability principle is the placing of burden or

onus on such people who are engaged in a certain act, in order to ensure that no violation of

any legally laid down prohibition is made. Strict liability and absolute liability find similarity

in the fact that both lack the requirement of a mental element. However, they can be

differentiated by the application of the defence of mistake.

II. Mistake Of Fact As A Defence In Strict Liability Cases: Position in India

In India, strict liability offences are given the facility of invoking mistake of fact as a defence.

The Indian position remains distinct from the conflicts in common law. It is clear that if the

law lays down or creates an offence, requiring it to be free from the mental component,

carrying with it no mandatory requirement to prove mens rea, the Courts must respect the

nature of such offence as laid down by the statute.28

Here, the argument that holds ground is

that, all those offences must be considered to be governed by Chapter IV of the Indian Penal

Code, 1860. Hence, the accused in such offences would get the privilege of the general

exceptions, including the defence of mistake of fact. However, mistake of law does not act as

a valid defence for strict liability offences.

Absolute liability offences, in which the liability is absolute does not get the privilege of the

defence of mistake.

27

Textbook On Criminal Law, Michael T. Molan, 3rd

Ed. 2001 46, Old Bailey Press. 28

Codification, Macaulay and the Indian Penal Code: The Legacies and Modern Challenges of Criminal Law

Reform, Wing Cheong Chan, Barry Wright, Stanley Yeo 51, Ashgate Publishing Ltd, 2011.

14

4. COMPARITIVE POSITIONS OF MISTAKE AS A DEFENCE IN COMMON LAW

COUNTRIES:

I. Britain:

Mistake of fact, irrespective of its reasonableness is a defence and excuses criminal liability.

Mistake of law does not, however, act as a defence because mens rea does not include

knowledge that the act is forbidden by law. Decision in the case of DPP v.Morgan29

,

narrowed down on the point that mistake as to the facts in a case(other than a case of

negligence) need not necessarily be a reasonable one. An honest belief as to the facts would

be sufficient as a defence.30

The idea of mistake as a defence is almost identical to the view in Indian law. The only

difference between the two lies in the fact that Indian law contains a hint of reasonableness in

the due care to be taken, unlike the position in English law.

II. Australia:

Like English law, the criminal jurisprudence in Australia too, considers mistake as a valid

defence, that negates the mental component-mens rea, not affected by the presence or

absence of reasonableness. In the case of He Kaw Teh v. The King31

, it was observed that the

prosecution gets defeated if it is found that the accused had honest belief which clearly

indicates the lack of intention or a guilty mind. Here, the reasonableness of the belief is not of

much value.

Also, mistake of fact acts as defence that the accused may invoke in cases involving strict

liability.

III. Canada:

In Canada, the important case of R v. Park32

, decided by the Canadian Supreme Court held

that mistaken beliefs that lack reasonableness must be reserved for the jury so that they

consider the same.

29

[1975] 2 All ER 347. 30

Barrett and Barret, (1980) 72 Cr App Rep 121. 31

(l985) 157 CLR 523. 32

[1995] 2 S.C.R. 836

15

IV. America:

In the American criminal justice system, a clear distinction is drawn between mistake of law

and mistake pertaining to a fact situation. There are four perspectives that are kept in mind

while deciding the admissibility of mistake of as a valid defence. Firstly, the equivalence

view considers both mistake of law and mistake of fact to be on an equal footing. The liberal

view an dthe moderate view, consider the question of admissibility of mistake of law as a

defence, keeping in mind the reasonableness of such mistake. The conservative view

however, goes to the extreme and propounds that mistake of law can never act as a valid

defence in criminal law.

Here it must be noted that a distinction lies between the British criminal system and the

American criminal system as far as the question of considering mistake as a valid defence is

raised. An important point to note, in this regard is that the English approach aims at

containing a subjectivity in the defence of mistake as to a fact situation, whereas, the Courts

in America, by incorporating the element of ‘reasonableness’ adds an objective element in the

test for determining the validity of mistake of facts as a defence.33

In the criminal jurisprudence in America, it is important to prove the following points in

order to construe mistake as a valid defence:

Harm done was due to a voluntary act of the defendant.

Such act would not be done by a reasonable and prudent man, based on the belief of facts as

the defendant construed it to be.34

Thus, according to the Model Penal Code, mistake pertaining to the facts that negatives the

mens rea in a criminal law is a valid defence.

33

The Mistake Of fact Defense And The Reasonableness Requirement, Margaret F. Brinig, Notre Dame Law

School, Scholarly Works, 1978, Paper 793. 34

Ibid.

16

5. MISTAKE OF FACT IS A VALID DEFENCE IN INDIA: JUDICIAL

PRECEDENTS:

In the case of State of West Bengal v. Shew Mangal Singh35

, the police officer was on patrol

in the outskirts of town at midnight. During this time, they were attacked by a few armed

men, in which event, the Assistant Commissioner of Police was injured grievously. In

response to this, the Deputy Commissioner of Police ordered to fire such unknown armed

men, two of whom died. Here, the prosecution’s case was that the one deceased along with

his brother were dead due to police firing. The defence view was, the police officers had

acted in good faith under superior’s order to protect and preserve public peace.

Both the High Court and the Hon’ble Supreme Court held that in this case, Section 76 of the

Indian Penal Code would apply, because good faith was exercised by the accused who was

simply complying with the orders of the superior. The basic principle that was brought about

in this case was that the subordinate officers must feel that the order was given in good faith,

not any order like that of torturing an innocent, police custody deaths, etc will not get the

protection by Section 76.

It is important to mention that in a case where, the accused in good faith, based on the belief

that a particular set of facts existed, Section 76 will apply and no conviction will take place.

This was brought forth in the case of R v. Tolson36

, where, the accused remarried believing

that her husband was dead and was hence, accused for committing the crime of bigamy. But,

it was held that, because her second marriage was not immoral and was based on good faith

led mistake of fact, she could not be convicted of bigamy.

This is however, different from the case R v. Prince37

, in which, the accused was held liable

for taking away a girl of around sixteen years from her father’s possession against his wish.

Here, the view of the defence was that the accused had acted bona fide because he did not

know that the girl was of sixteen years. However, the Court held that because the act of

taking away the girl was itself illegal, the defence of mistake of fact will not apply in this

case. Therefore, it is clear that once something is considered unlawful, it is no excuse to say

that one was unaware of such existing law.

However, in an urge to compare the cases of R v. Prince and r v. Tolson, it has to be

remembered that in the former case, the act that was in question was wrong itself, that is,

35

AIR 1981 SC 1917. 36

(1889) 23 QBD 169. 37

(1875) LR 2 CCR 154.

17

mala in se, which, if committed by a person, makes him liable for the same whether or not he

had knowledge of the same. In the latter however, the act of the accused marrying for the

second time, during the course of her spouse’s lifetime, was not in itself a wrong, but was

mala in prohibit, meaning, prohibited by law.

In the case of State of Maharashtra v. Mayer Hans George38

, the respondent carrying around

34 kgs of slabs of gold was found guilty for violating the provisions of the Foreign Exchange

Regulation Act and a notification dated 24th

November, 1962, the respondent having boarded

the plane on 27th

November, 2002. Here, the Court held that the respondent, a foreign

national could not take the plea that he was not aware of the existing Indian law, being

unaware of the RBI notification and thus, was convicted. Such law however, in order to

operate inside the territory of India, does not mandatorily be made known or published

beyond the Indian territory.39

Another set of cases arise when the accused, in a mistake of fact, felt that he was justified

under the law to do the same. For instance, in the case of Chirangi v. State of Madhya

Pradesh40

, the accused, in a confused and unstable state of mind had visualized a tiger instead

of his son and in a mistake that it was his son, killed him. The Madhya Pradesh High Court,

in this case, held that the accused was under a mistake of fact that it was a tiger and not his

son, hence, believed himself to be justified by law to have killed the tiger in his own

protection. Protection was thus given to the accused under Section 79 of the Indian Penal

Code and thus was acquitted. A similar case, Bondi Kui v. Emperor41

came up before the

Patna High Court in which the accused, a woman mistakenly thinking her brother-in-law’s

wife to be an evil spirit had beaten her to death. The Court held that the accused was not

liable under Section 302 of the Indian Penal Code and was fully protected under Section 79

of the Code because she was under the mistaken belief that the deceased was an evil spirit

that could cause harm to humans and not a human being herself.

While deciding on the applicability of Section 79 to a particular situation, it is important to

consider the mental faculty or attitude of the accused. For instance, in the case of State of

38

AIR 1965 SC 722. 39

Ibid. 40

(1952) 53 CrLJ 1212 (M.P). 41

AIR 1943 Pat 64.

18

Orissa v. Khora Ghasi42

the accused, while he was on guard his field, had shot a man,

thinking him to be a bear. The Court, on account of the bona fide belief of the accused, held

that he was not liable under Section 302 as he was completely protected by Section 79 of the

Indian Penal Code.

Thus, the above series of cases gives an overview of the applicability of Section 76 and

Section 79 as defences in criminal law, also viewing the status of mistake of law as a defence.

42

1978 Cr:LJ 1305.

19

CONCLUSION:

Mistake as a defence in common law brings with it two wings- mistake of law and mistake of

fact. The primary question that arises is, regarding the applicability of both mistake of alw

and of fact as valid defences in criminal law. The legal position in common law countries,

though substantially the same, differ slightly.

However, from the above discussion regarding mistake as a defence in common law, it is

hence clear that mistake can be used a valid defence in criminal offences. The application of

such defence however might differ from country to country or even among different Courts in

the same country. While mistake of fact is a valid defence in most of the jurisdictions, a

mistake of law is considered as no excuse in criminal law. Another facet of difference is the

requirement of reasonableness while dealing with the question as to whether or not an act was

done in good faith. As discussed above, the Indian criminal jurisprudence contains the

element of mistake as a defence under two provisions of the Indian Penal Code, 1860. Also,

the two provisions deal with two categories of cases, that might seem identical but have a

subtle difference- Section 76 concerns acts that one thought to be bound by law to do it,

whereas, Section 79 concerns such acts which are not prohibited by law and if done, will not

attract any impunity. Acts under Section 76, on the other hand, bring about a kind of

compulsion. Mistake has another facet when it comes to offences involving strict liability.

Slight differences exist between the existent legal position in India and in other common law

countries regarding the applicability of mistake as a defence in strict liability cases.

Further detailed discussions of a few landmark cases show that the Indian Courts have used

mistake as a defences in criminal offences, in a very subjective manner. The requirement of

due care and attention has not been given utmost importance. Good faith based on the honest

intention of the accused has been enough to successfully apply mistake of fact as a defence.

the law tries to protect the ones who have committed an act under a genuine mistake because,

an act done without the perfect intention to do it, lacks mens rea. Punishing one for such an

act would defeat the basic principles of criminality. However, the law does not excuse one if

he claims that he was unaware of the law. This is because, such a plea, if accepted would be

highly problematic, attracting innumerable people who would seek to escape the clutches of

justice and punishment by pleading ignorance of the law. Thus, it is mistake of fact and not a

mistake of law that is considered as a valid defence by the Courts by and large.

20

BIBLIOGRAPHY:

Books:

PSA Pillai’s Criminal Law, by K I Vibhute, LexisNexis, 12th

Edition 2014.

Ignorance and Mistake In Criminal Law, by Jerome Hall, 1957, Indiana Law Journal, vol

33.

Textbook Of Criminal Law, by Glanville Williams, 2nd

Edition, 2009, Universal Law

Publishing Company Pvt. Ltd.

Clarkson and Cleating Criminal Law, by CMV Clarkson, HM Keating and SR

Cunningham, 6th

Edition 2007, Sweet & Maxwell Limited.

Textbook On Criminal Law, Michael T. Molan, 3rd

edition 2001, Old Bailey Press.

Codification, Macaulay and the Indian Penal Code: The Legacies and Modern Challenges

of Criminal Law Reform, edited by Wing Cheong Chan, Barry Wright, Stanley Yeo,

Ashgate Publishing Ltd, 2011.

Journals:

The Indian Penal Code: Differences Between Justification and Excuses and Mistakes,

Necessity and Accidents as Defences, Sarica Ashok Reddy.

The Mistake Of fact Defense And The Reasonableness Requirement, by Margaret F.

Brinig, Notre Dame Law School, Scholarly Works, 1978, Paper 793

Internet Sources:

http://www.hrdiap.gov.in/fcg2/studymaterial/week2/INDIAN%20PENAL%20CODE,%2

01860.pdf

https://www.nls.ac.in/students/SBR/issues/vol10/1002.pdf

https://books.google.co.in/books?id=2Dp-

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KePCmAWsnILYCA&ved=0CBwQ6AEwAA#v=onepage&q=defence%20of%20mistak

e%20of%20fact&f=false.