By the order of a superior officer, ‘A'a policeman fires and kills two persons who are members of the lawful profession. Is `A’ entitled to protection under Section 76 of the Indian Penal Code?

Question: By the order of a superior officer, ‘A’a policeman fires and kills two persons who are members of the lawful profession. Is 'A’ entitled to protection under Section 76 of the Indian Penal Code? [Bihar A.P.O. 1997]

Find the answer to the mains question only on Legal Bites. [By the order of a superior officer, ‘A’a policeman fires and kills two persons who are members of the lawful profession. Is 'A’ entitled to protection under Section 76 of the Indian Penal Code? [Bihar A.P.O. 1997]

Answer

Section 76 of the Indian Penal Code provides for an act done by a person bound or by mistake of fact believing himself bound by law. The provision states that nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not be the reason of a mistake of law in good faith, believed himself to be, bound of law to do it.

Further, section 79 of the code states that 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 the law in doing it.

However, if a person did a wrongful act by a mistake of fact with good faith and honest belief that he was bound to do, he may be excused. It is presumed that everyone knows the law of the land. The defence under section 76 requires a direct order from a superior to commit the crime in question, and it is characterized by two significant features:

• Firstly, the defendant must have no knowledge of the illegality of the order, that is, the subordinate must in good faith and reasonably believe that the superior’s order did not violate the law, in order to claim the defence.
• Secondly, this defence is not available to the subordinate if she could choose between one of two or more possible actions.

Thus, it must be noted that only obedience to the legal orders of a superior is justifiable under section 76 and not the illegal ones. The law does not recognize the duty of blind obedience to the commands of a superior unless he believed in good faith that he was bound to obey that order. Here, the law requires that the soldier should exercise his own judgment

A leading case on point is Charan Das Narayan Singh v. State (1950) 52 PLR 331. In this case, information was received that some persons were gambling in a tent. A party consisting of a Havildar and a Constable of the National Volunteer Corps arrived outside the tent and surrounded it. Soon after, gunfire was heard and the deceased who was inside the tent was found to have shot dead.

At the trial, the Constable admitted that he had fired the shot, but pleaded that he had done so in obedience to the orders of the HAVILDAR. It was held by the court that sect5ions 76 and section 79 of IPC were inapplicable as in the circumstance, Charan Dass was not bound to obey the order to fire. In this case, the order was unnecessarily and manifestly illegal as there was merely a suspicion of gambling and nothing more.

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