Discuss if there is any purpose to differentiate specific defences from general defences under the Indian Penal Code.

Question: Discuss if there is any purpose to differentiate specific defences from general defences under the Indian Penal Code. [HR.J.S. 2015]

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Answer

Criminal Law covers various punishments for offences which vary from case to case. But it is not always necessary that a person gets punished for a crime which he/she had committed. That is why the Indian Penal Code (IPC), 1860 recognizes defences in Chapter IV under “General Exceptions”. Section 76 to 106 covers these defences which are based on the presumption that a person is not liable for the crime committed. These defences depend upon the circumstances prevailing at that point of time, mens rea of person and reasonability of action of that accused.

Section 6 of the code clearly states that: “Throughout this code, every definition of offence, every penal provision and every illustration of every such definition or penal provision, shall be understood subject to exceptions contained in the chapter titled General Exceptions”.

However, Chapter IV dealing with “General Exceptions” are further divided into 2 categories:

Classification of general exceptions

Excusable Act – Excusable General Exceptions (General Defences)

• Mistake of fact (Section 76 and79)
• Accident (Section 80)
• Infancy (Section 82, 83)
• Insanity (Section 84)
• Intoxication (Section 85 and 86)

Justified Act (Specific Defences)

• Judicial Act (Section 77 and 78)
• Necessity (Section 81)
• Consent (Section 87 – 89 and 92)
• Duress (Section 94)
• Communication (Section 93)
• Trifles (Section 95)
• Private Defense (Section 96-106)

‘Excuses’ and ‘justifications’, though both of them ultimately exonerate an individual from liability, are conceptually distinct. First, in the excusable defences, the act is excused for want of the necessity of requirements of guilty mind, while in the latter the act done is justified on account of some other meritorious considerations neutralising the corresponding liability otherwise incurred. The first category of exceptions, thus, treats an actus reus as non-criminal because of the absence of the requisite mens rea, while the second one considers an actus reus, though committed with the required mens rea, meritorious.

Some common defences of criminal law, such as insanity, infancy and intoxication are based on the defendant’s lack of capacity to be held legally responsible. These defences depend upon the circumstances prevailing at that point of time, mens rea of person and reasonability of action of that accused and accordingly general explanation and general exceptions are made out of the commission of offences in those conditions. Thus, an excusable act is one in which though the person has caused harm, it is held that a person should be excused because he cannot be blamed for the act. This is termed as a general defence, owing to the mental capacity of the accused.

For example, in the case of Krishna Bhagwan v. State of Bihar, [AIR 1989 Pat 217], Patna High Court upheld that if a child who is accused of an offence during the trial, has attained the age of 7 years or at the time of the decision the child has attained the age of 7 years can be convicted if he is able to understand the nature of the offence.

On the other hand, a judicially justified act comes under the purview of Specific Defences, the reason being that a justified act is one that would have been wrongful under normal conditions but the circumstances under which the act was committed make it tolerable and acceptable. The person fulfils all the ingredients of the offence but his conduct is held to be right under the circumstances.

Thus, it is evident from the analysis that the thin line difference between specific and general defences is that the former is when the law excuses certain offenders, even though their action constitutes a crime. The latter category is where the act amounting to an offence is justifiable under the circumstances they were committed and thereby are supplemented with the exception to escape liability.

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