About this topic
Sections 14 to 18 of the B.N.S. are the first general defences. Each one answers a familiar plea made by a person who has hurt someone or taken away someone's liberty:
- "It was an accident": Section 18 (accident in doing a lawful act).
- "The law made me do it": Section 14 (act done by a person bound by law, or believing himself bound by a mistake of fact).
- "The law allowed me to do it": Section 17 (act done by a person justified by law, or believing himself justified by a mistake of fact).
- The judge's plea: Section 15 (act of a Judge when acting judicially).
- "I only carried out the court's order": Section 16 (act done pursuant to a judgment or order of a Court).
Four problems to keep in mind (solved at the end of these notes). Four people wait outside a courtroom in Bhopal:
1. Prince, a farmer, was cutting down an old neem tree on his own field. He tied a rope around the area and shouted a warning. A cattle herder slipped under the rope, a heavy branch twisted the wrong way, and the herder died. Prince says, "It was an accident."
2. Farhan, a constable, carried a magistrate's warrant to arrest a man described by his name and his father's name, from a village near Bhopal. Farhan checked the village records, found a man of that name and parentage, and arrested him. It later turned out that the village had two men of that name, and both their fathers also shared the same name. Farhan says, "The law made me do it."
3. Aadil, who runs a tea stall at the bus stand, saw a woman's gold chain snatched and a young man in a red shirt running. He caught a young man in a red shirt and handed him to the police within the hour. The real snatcher had escaped down another lane. Aadil says, "The law allowed me to do it."
4. Zoya, a court bailiff, seized a debtor's tractor under a court's decree. Months later, the appeal court held that the first court never had jurisdiction to try that suit. Zoya says, "I only carried out the court's order."
Place of these Sections in the B.N.S.
Sections 14 to 18 open Chapter III of the B.N.S., titled "General Exceptions", which runs from Section 14 to Section 44.
Section 3(1) of the B.N.S. provides:
"Throughout this Sanhita every definition of an offence, every penal provision, and every Illustration of every such definition or penal provision, shall be understood subject to the exceptions contained in the Chapter entitled 'General Exceptions', though those exceptions are not repeated in such definition, penal provision, or Illustration."
Every offence in the B.N.S. carries an invisible footnote: subject to the General Exceptions. The exceptions apply to every definition, penal provision and Illustration even though they are not repeated in each of them.
Section 18: Accident in doing a lawful act
"Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution."
Meaning of accident and misfortune
- Accident: an event that was neither intended nor reasonably expected.
- Misfortune: an accident that ends badly for someone.
Five essentials (five checkpoints)
The law does not accept the word "accident" at face value. It sets five checkpoints on one road:
- Was the harm truly accidental?
- Was there no criminal intention or knowledge?
- Was the act lawful?
- Was it done in a lawful manner and by lawful means?
- Was proper care and caution taken?
Failing even one checkpoint defeats the defence under Section 18.
Illustration: the hatchet
The illustration to Section 18 describes a man at work with a hatchet whose head flies off and kills a man standing by. The act is excusable "if there was no want of proper caution".
Change one fact: the worker knew the head was loose and kept swinging it near people. The care checkpoint now fails, and the death may instead be causing death by negligence under Section 106 of the B.N.S.
The lawfulness of the act itself
Exam tip: the checkpoint students most often forget is the lawfulness of the act itself. Careful conduct and an unexpected result do not help if the act being done was unlawful from the start.
A thief is driving away in a stolen car, carefully and within the speed limit, when a tyre bursts and the car hits a pedestrian. The crash was unexpected and the driving was careful. Yet Section 18 is not available, because the act being done, driving away a stolen car, was unlawful from the start.
Section 14: Act done by a person bound, or by mistake of fact believing himself bound, by law
Accident v. mistake of fact: an accident (Section 18) concerns an unexpected result. Sections 14 and 17 concern a wrong picture of the facts.
"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."
Two persons protected
- The person truly bound by law: the law imposes a duty and leaves no choice.
- The person who only believes himself bound, because of a mistake of fact.
A mistake of fact is an error about the real situation, such as who a person is or what has just happened.
For the second person, the Section requires that the belief:
- arise by reason of a mistake of fact;
- not arise by reason of a mistake of law; and
- be held in good faith.
Good faith: Section 2(11)
"Nothing is said to be done or believed in 'good faith' which is done or believed without due care and attention."
Good faith is a clean heart plus a careful mind. A careless belief, however sincere, does not qualify as good faith.
Mistake of law is no defence
Note the words "and not by reason of a mistake of law". A mistake of law is an error about what the law says.
Maxim: ignorantia facti excusat, ignorantia juris non excusat. Ignorance of fact may excuse, but ignorance of law does not.
Reasons for the rule:
- Otherwise, the person who never reads anything would be the safest person in the country.
- Courts could never test what an accused truly knew.
State of Maharashtra v. Mayer Hans George (1964): decided by the Supreme Court on 24 August 1964.
Facts: The accused, a German national, flew from Zurich towards Manila on 27 November 1962, wearing a specially made jacket hiding about 34 kilograms of gold. The plane landed at Mumbai the next day. The Reserve Bank of India had long allowed gold to pass through in transit if it stayed on board. But a notification dated 8 November 1962, published in the Gazette of India on 24 November, required such gold to be declared in the aircraft's manifest (its official cargo list). This gold was not declared. Customs officers recovered it, and a prosecution followed under the Foreign Exchange Regulation Act, 1947.
Lower courts: The magistrate imposed one year of rigorous imprisonment. The High Court acquitted, holding that a guilty mind was needed and that the accused knew nothing of the notification.
Argument in the Supreme Court: Guilty knowledge was essential, and a foreign traveller could not know of a change made only days earlier.
Held (majority): The object of the law excluded the need for a guilty mind; publication in the Gazette made the notification known; and ignorance, even by a foreigner, made no difference. Justice K. Subba Rao dissented, holding that knowledge was essential. The conviction was restored, though the sentence was reduced to the period already undergone.
Principle: Ignorance of the law is no excuse. Though the case arose under foreign exchange law, its lesson is exactly why Sections 14 and 17 of the B.N.S. protect only a mistake of fact.
Superior orders
The rule against mistake of law matters most in uniformed services.
The first illustration to Section 14 describes a soldier who fires on a mob by a superior's order, "in conformity with the commands of the law", and commits no offence. Those words carry the weight, because the law binds a soldier only to lawful commands.
Now imagine a platoon ordered to fire on a silent candle march that threatens no one. Believing that such an order must be obeyed is a mistake of law, not of fact, and Section 14 does not protect it.
Superior orders protect a subordinate who:
- obeys a lawful command; or
- after due care, honestly believes in facts that would make the command lawful.
They never protect blind obedience to a plainly unlawful command.
Section 17: 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."
Bound (Section 14) and justified (Section 17) distinguished
| Point | Section 14: "bound by law" | Section 17: "justified by law" |
|---|---|---|
| What the law does | The law commands (imposes a duty) | The law only permits |
| Choice of the person | No choice; must act | May act or stay away |
| Mistake of fact in good faith | Protected | Protected |
| Mistake of law | Not protected | Not protected |
| Plea | "The law made me do it" | "The law allowed me to do it" |
Apart from the difference between command and permission, both Sections work alike.
Illustration: seizing an apparent murderer
The illustration to Section 17 describes a person who seizes someone appearing to commit murder, using the power the law gives to all persons "of apprehending murderers in the fact". That is no offence, even if the person seized was really "acting in self-defence".
Private person's power of arrest: Section 40(1) of the B.N.S.S.
Today, a private person's power of arrest comes from Section 40(1) of the B.N.S.S.:
"Any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, but within six hours from such arrest, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station."
Elements of the power:
- The person arrested must have committed a non-bailable and cognizable offence in the presence of the private person, or be a proclaimed offender.
- The arrested person must be handed to a police officer without unnecessary delay, but within six hours of the arrest.
- If no police officer is present, the arrested person must be taken to the nearest police station.
Being on duty is not being justified by law
Section 17 protects only what the law really justifies, and a uniform does not widen that boundary.
State of Andhra Pradesh v. N. Venugopal (1963): decided by the Supreme Court on 9 May 1963.
Facts: On 6 January 1957, a Sub-Inspector, a Head Constable and a Constable took a man into custody on suspicion of receiving stolen gold ornaments from an earlier house-breaking. Less than three days later, the man was found dead with many injuries. The prosecution case was that the officers had confined and beaten the man to extract information, and then had the body thrown elsewhere to protect themselves.
Sessions Judge: Acquitted the officers of murder, but convicted them of wrongful confinement and grievous hurt to extort a confession, and of causing disappearance of evidence.
High Court: Acquitted them, chiefly holding the prosecution time-barred under Section 53 of the Madras District Police Act, 1859, which limited prosecutions for acts done under that Act. In its view, whatever officers do to a suspect while investigating is done in discharge of official duty.
Held (Supreme Court): The High Court's view was wholly unwarranted in law. No provision lets a police officer beat or confine a person to obtain a statement, and a beating does not become part of an investigation merely because it happens during one. An act wholly justified by law would be no offence at all because of Section 79 of the Indian Penal Code, then in force; torture could never meet that test. Not certain that grievous hurt was intended, the Court convicted all three of voluntarily causing hurt to extort a confession under Section 330 of the Indian Penal Code, gave each five years of rigorous imprisonment, and called such barbarous treatment of suspects a matter for a serious view.
Principle: Being on duty is not the same as being justified by law.
Section 79 of the IPC is now Section 17 of the B.N.S. The offence of voluntarily causing hurt to extort a confession (Section 330 of the IPC) now falls under Section 120(1) of the B.N.S.
Section 15: Act of Judge when acting judicially
In Sections 14, 17 and 18, the person acts on his own reading of the facts. Sections 15 and 16 protect those who act on a court's authority, beginning with the judge.
"Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law."
Why judges are protected
Almost every judicial order hurts somebody: a convict loses liberty, a party loses property. If each order could become a criminal complaint, no judge could decide independently.
Who is a Judge: Section 2(16)
"Judge" includes anyone officially designated as a Judge and, among others, anyone empowered by law to give a definitive judgment in a legal proceeding.
Two limits on the protection
- "Judicially": the act must be done while acting judicially. A magistrate remanding an accused is acting judicially. A magistrate slapping a lawyer in the corridor is not.
- Good faith: suppose a magistrate honestly reads a provision as giving a power to detain, and a higher court later holds that no such power existed. Section 15 still protects the magistrate, because it covers a power the judge in good faith believes to be given by law. But an order passed for a bribe is not passed in good faith and gets no protection.
Unlike Sections 14 and 17, the judicial Sections can protect an honest error about legal power.
Section 16: Act done pursuant to judgment or order of Court
Judges do not carry out their own orders. Police officers, jail staff and bailiffs do, and Section 16 protects them:
"Nothing which is done in pursuance of, or which is warranted by the judgment or order of, a Court; if done whilst such judgment or order remains in force, is an offence, notwithstanding the Court may have had no jurisdiction to pass such judgment or order, provided the person doing the act in good faith believes that the Court had such jurisdiction."
Three conditions
- The act must be done under, or be warranted by, a court's judgment or order.
- The judgment or order must still be in force.
- If the court lacked jurisdiction (legal power over the matter), the person acting must have believed in good faith that it had it.
A person who keeps acting after learning that the order has been stayed or set aside is no longer protected.
Errors about the law under Sections 14 to 17
| Section | Who is protected | Error about the law |
|---|---|---|
| Section 14 | Person bound by law, or believing so by a mistake of fact | Mistake of law not protected |
| Section 17 | Person justified by law, or believing so by a mistake of fact | Mistake of law not protected |
| Section 15 | Judge acting judicially | Protected if the judge in good faith believes the power is given by law |
| Section 16 | Person acting under a court's judgment or order in force | Protected even if the court had no jurisdiction, if the person in good faith believes it had |
Burden of proof
The prosecution must prove the offence beyond reasonable doubt. But the burden of proving a General Exception lies on the accused. Section 108 of the B.S.A. provides:
"When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the B.N.S. or within any special exception or proviso contained in any other part of the said Sanhita, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances."
How courts have eased this burden
- Lower standard: the accused need only show that the exception is more probable than not, a preponderance of probabilities, not proof beyond reasonable doubt.
- Whole record: courts read the whole record. The Supreme Court has repeatedly held, for example, that a plea of private defence may be considered even if never raised, when it arises from the material on record.
Prosecution: proof of the offence beyond reasonable doubt. Accused: proof of the General Exception on a preponderance of probabilities (Section 108 of the B.S.A.). The court presumes the absence of the exception until the accused discharges this burden.
The four problems solved
| Person | Plea | Defence | Why it applies |
|---|---|---|---|
| Prince (farmer) | "It was an accident" | Section 18 | Lawful act on his own land, done lawfully, with a rope and a warning; protected if the court finds proper care |
| Farhan (constable) | "The law made me do it" | Section 14 | Bound to execute the warrant; the error about identity was a mistake of fact made after checking the records |
| Aadil (tea-stall owner) | "The law allowed me to do it" | Section 17 | A permission, not a duty; the error about the snatcher's identity was a mistake of fact; protected if made with due care |
| Zoya (bailiff) | "I only carried out the court's order" | Section 16 | Acted under a decree in force on the day of seizure, believing in good faith that the court had jurisdiction |
Prince: Section 18
Prince was doing a lawful act on his own land, in a lawful manner, with a rope and a warning. If the court finds that proper care was taken, Section 18 protects Prince.
Farhan: Section 14
Farhan was bound by law to execute the warrant. The error about the man's identity was a mistake of fact, made after checking the village records. Section 14 protects Farhan.
Aadil: Section 17
Aadil had a permission, not a duty. Snatching under Section 304 of the B.N.S. is cognizable and non-bailable; it happened in Aadil's presence; and the man reached the police well within six hours, as Section 40(1) of the B.N.S.S. requires. The error about the snatcher's identity is a mistake of fact. If made with due care, Section 17 protects Aadil.
Zoya: Section 16
Zoya acted under a decree that was in force on the day of the seizure, believing in good faith that the court had jurisdiction. Section 16 protects Zoya, even though the court in fact had none.
Quick revision
- Section 18: an accident inside a lawful act, done in a lawful manner, by lawful means and with proper care and caution.
- Section 14: a duty imposed by law, or a careful (good-faith) mistake of fact about one.
- Section 17: a permission given by law, or a careful mistake of fact about one; never a mistake of law.
- Section 15: a judge acting judicially, in good faith.
- Section 16: those carrying out a court's judgment or order while it is in force.
