Indian Penal Code, 1860 has provided various defences under Chapter IV, these defences are for persons accused of an offence under this Code. These defences can be categorised into two categories.
Excusable Defences
These defences are excusable under the law, as even though the wrongful act took place, there was no criminal intent.
- Mistake of fact (S. 76 & 79)
- Accident (S. 80)
- Infancy (S. 82 & 83)
- Insanity (S. 84)
- Intoxication (S. 85 & 86)
Justified Defences
Justified defences are wrongful acts which are justified due to the circumstances.
- Judicial Acts (S. 77 & 78)
- Necessity (S. 81)
- Consent (S. 87-89 & 92)
- Communication (S. 93)
- Trifle Acts (S. 95)
- Duress (S. 94)
- Private Defence (S. 96- 106)
Necessity
Sec. 81 states that, an act will not be an offence if done in necessity, with the knowledge of the act causing harm or any act done without criminal intention to cause harm, done to prevent any other harm. The ingredients of necessity can be said to be the following:
Knowledge of harm should exist but the act should be without any criminal intention.
It is necessary for this exception to be held valid, for it to be in the absence of any criminal intention. Any action which was intentional cannot be justified.
Purpose of the act was to prevent or avoid harm which is in relation to person or property.
Even though the act committed was a wrongful act, with the knowledge of it being so and causing him, if the act is committed to prevent harm to a person or a property, the act would be covered under this section.will not be an offencewill not be an offence.
Must be in good faith.
There must be three requirements for the application of necessity as a defence according to Sir Stephen, they are:
a. The act should be to avoid inevitable and irreparable evil
b. It should only be reasonably necessary by which the purpose is achieved
c. The evil inflicted should be proportionate 1
Illustration: A pulls down a house to prevent fire from spreading. His intention was to save human life and property. The harm was done to prevent a greater harm, A will not be held guilty for the offence.
Case: Re F (Mental patient sterilisation) [1990] 2 AC 1
F was a 36-year-old woman who was suffering from a serious mental disability and since the age of 14, was a patient in a mental hospital, voluntarily. Eventually she developed a sexual relationship with another patient. The hospital and her mother were concerned as they believed she wouldn’t be able to handle a pregnancy or raise a child. As other methods of contraceptives failed, they thought it would be best for her to get sterilised. F was incapable of giving valid consent as she was not capable and this said operation was a necessity for herself.The court held the decision to be lawful.
Case: R v Dudley and Stephens (1884) 14 QBD 273
A ship was shipwrecked by a storm which led three adults and one minor stranded for 18 days. Their food ran out 7 days before the storm and they had had no water for 5 days. Dudley suggested to sacrifice the minor boy as he was too weak to which Brooks refused. On the 20th day Dudley and Stephen without the consent of Brooks killed the boy as he was close to death and had no family. All three fed on the boy and were rescued four days later.The defendants were convicted of murder. The defence of necessity was not held valid.
Types of Necessity
Public Necessity
A public necessity relates to the prevention of any public harm or a threat of public harm which affects the public at large. For example,any destruction of any private or public property to prevent any greater harm such as the spread of fire.Actions of administrative authorities such as the police can be covered under this.
Private Necessity
Private necessity on the other hand focuses more on individual interest rather than public at large. While public necessity is an absolute defence, private necessity is not.2
Burden of Proof
The burden of proof lies on the defendant. The General Exceptions given in the Indian Penal Code, 1860 presume the absence of mens rea, which implies that there may be a presumption against the accused and the burden to prove this presumption lies on the accused.
Frequently Asked Questions
1. Does the doctrine of self preservation apply to the exception of necessity?
Referring to the judgement of R v. Dudley and Stephen, the act of self-preservation cannot be said to be covered under the exception of necessity. In support of this, Dr. HS Gour has provided three principles:
1. Self-preservation is not an absolute necessity
2. No man can take a life to preserve his own
3. There is no necessity that justifies homicide
2. Can the defendant who is claiming the defence of necessity have contributed to the act which led to the necessity?
No, the defendant who is claiming necessity cannot have contributed to the act or caused the threat of the act as they are a catalyst or a part of the reason the act took place. They cannot seek to avoid it later.
3. Is it important for the accused to have no other option than to commit the act of necessity?
Yes, it is important for there to exist no other realistic option which is available to the accused at the time the act was committed. If such an option was present, his action would not be justified.
Edited by Shikhar Shrivastava
Approved & Published – Sakshi Raje
References
1. Necessity, https://www.justia.com/criminal/defenses/necessity/, ( Sep 4, 2019, 7:05 PM),
2. Necessity as a defence, https://www.lawctopus.com/academike/necessity-as-a-defence/, (Sep 5, 2019, 9:00 PM),
3. Re F (Mental patient sterilisation), [1990] 2 AC 1
4. R v Dudley and Stephens,(1884) 14 QBD 273
5. S.N. Misra, Indian Penal Code, 167-179, (20th ED. 2016) Central Law Publications, Allahabad.
