Distinction between section 76 and 79 of IPC
Authored By Devanshi goyal
Key words: ignorance of law, mistake of fact, general exception.
Under the penal laws the maxim which follows as ignorance of law is not an excuse but ignorance of fact is an excuse which has been embedded with in the provisions provided under general exceptions under section 76 and 79 of the Indian penal code. Such mistake must be reasonable and should be pertaining to the mistake of fact not the law to invoke such weapon for protection. It becomes the basic requirement for defence, under this concept that the mistake must be of fact believing to be done under good faith. Mistake of fact arises when there is a misjudgement of some fact that negates an element of crime.
The common principle provided under the section 76 and 79 of penal code deals with those classes of cases where the person by a reason of mistake of fact, but in good faith, considers himself bound by law to do an act, or by a reason of mistake of fact, considers himself to be justified by law to act in a particular manner. The essential element for which the person considers himself to be bound or justified is the good faith which he believes to empower upon himself by the mistake of fact and act in a bonafide manner, thus such act of him will not be construe as an offence.
These provisions of law are contemplated to provide protection from convictions to the persons who are bound by law or justified by law for their actions which are done due to mistake of fact and are deemed as an offence. The mistake must be in good faith and after exercise of due diligence.
Section 76 lays down that the act done by a person, who is, or who by reason of mistake of fact and not by mistake of law, by a bonafide intention, believes himself to be bound by law will not be considered an offence. Whereas, Section 79 of the code suggests that an act done by a person, in a bonafide manner, who believes himself to be justified by law for performing such act, will not be considered as an offence.An act might not be justified by law, yet if it is done under a mistake of fact, under the belief of good faith that the act is justifiable by law and will not be construed as offence .The question of good faith whether there or not is always a question of fact which is to be determined in conformity with the proven facts and circumstances of each cases.
Section 76 and section 79 of Indian penal code
The distinction between both the sections of the code lies between the intention for which the person is committing an act, that is the relation between him and the act done by him. He can either be supposedly presume himself to be bound by the law as per section 76 of IPC or he can assume himself to be justified by law as per section 79 of IPC.
In R vs. Princes (1875) 1 in this case it was held that the person’s act which constitutes an offence comes under the ambit of this defence only when he acts in good faith and with good intention and believes that his act is justified by law.
Line of Distinction between section 76 and section 79
The distinction line between person committing the offence considering himself to be bound by law or justified by law is very thin. Bound by law signifies that although the state of facts show that the offence has been committed yet the person under the mistake of fact believe himself to be bound by
law to perform such act or conduct the act in the particular manner constituting an offence.
For example, a servant killing his master at night mistaking him for the bulgar who entered the house, here the servant was bound to protect his masters house from burglary and in doing so has committed an offence. On the other side, justified by law indicates that the person who has committed the act was empowered by law, that is the act done on an adequate reasons supporting all the evidence for the performance of such act.
For example, X saw T engaged in inflicting severe blows to E, caught T in order to hand him over to police. But later it was found that that T was acting in self-defence against E. Here since X acted in good faith justified by law, will be excused.
There is a distinction of an actual or presumed legal obligation and an actual or presumed legal justification in doing the act. But under both the sections, there is a bonafide intention to advance the law, and the absence of mens rea in both the sections.
In the case Chirangi vs. State 2 , the accused took an axe and went with his son near a hillock, and in order to gather some leaves kills his own son in a moment of delusion considering the son to be a tiger. The accused, by the reason of fact was justified in destroying deceased, which he thought as dangerous animal, the court held that the accused in the given circumstances to be granted protection under section 79 of code and hence was acquitted of the charge.
• In another case, State Of Orissa Vs Bhagawan Barik, 3 the question whether the accused could get the benefit of section 79 for having committed an offence under a mistake of fact. After questioning the accused the High Court have held that in the circumstances the respondent had not committed any offence and was protected under section 79 on the ground of having acted in good faith under the belief, owing to a mistake of fact that he was justified in doing the act which constituted an offence.
• In the landmark English case of Tolson 4 , where a women remarried in belief that her husband is dead. The women accused was convicted for the offence of bigamy. But the court held that the reason for her remarriage was conducted on bonafide belief on reasonable grounds of desertion by her husband for seven years.
• In the case of State Of West Bengal Vs Shrew Mangal Singh 5 the accused, a police officer was provided protection and was justified for the open fire for which he was held to be bound by law to obey the orders of the superior officers and was not held guilty.
Section 76 and 79 deals with mistake of Fact as a defence to the offence. As per these provisions under the general exceptions, a person can be precluded from conviction if only the act done by him has no malafide intention, or the accused had no mens rea to perform the said act. The essential conditions which are required to attract these provisions are based on the circumstances and facts, and if known, then the act committed might have been preventive in doing that action. This basis of belief for defence is mostly accepted when the proof of intention is unnecessary. As per section 76 of the code the person bound by law accords him under a legal obligation and doing a legal duty is not an offence, whereas under section 79 it provided the justification which entails the mistake of fact acted in good faith.
1 LR 2 CCR 154,
2 1952 Cr LJ 1212
3 (1987) 2 SCC 498
4 (1889) 23 QBD 168
5 [AIR 1987 SC 1917]