MISTAKE

INDIAN PENAL CODE

NAME : AISHWARYA S NAIR
COURSE : BALLB
BATCH : 2020-25
SECTION : A
EMAIL : [email protected]
 TABLE OF CONTENTS

INTRODUCTION MISTAKE OF FACT AS

04 09 14 DETAILED INFO ABOUT S.79
DEFENCE

05 TYPES OF DEFENCES 10 FRAUD 15 CONCLUSION

06 MISTAKE 11 NATURE OF MISTAKE

07 S.76 12 GOOD FAITH

MISTAKE OF FACT AND SECTION 79

08 13
MISTAKE OF LAW
 INTRODUCTION
Chapter IV of the Indian Penal Code deals with the general
Mistake of fact (Secs.
1
76, 79)

exceptions to criminal liability. There are various kinds of acts

(exceptions) done under the circumstances mentioned in S. 76 to 106
which will not amount to offences under Indian Penal Code (IPC) :
Judicial acts (Secs.
2
77-78) These exceptions are:
1. Mistake of fact (Secs. 76, 79).
Accident (Sec. 80).
2. Judicial acts (Secs. 77-78).
3

4
Tri ing act (Sec. 3. Accident (Sec. 80).
95).

4. Absence of criminal intention (Secs. 81-86, 92-94).

5
Private defence
(Secs. 96-106)

5. Act done by consent (Secs. 87-91).

6. Trifling act (Sec. 95).
7. Private defence (Secs. 96-106).
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 TYPES OF DEFENCES

The general rule is that EXCUSABLE where the person lacks mens rea
the person is presumed required to constitute an offence
to know the nature and EXCEPTIO punishable under law.
consequence of the act, S.76-95
thus whoever commits
crime gets punished for
the same. There are
certain following
exceptional situations
where a person commits
a crime yet he does not JUSTIFIABLE where the circumstances under which the
get punishment:
•
EXCEPTIO act is committed provides legal
justification
S.96-105

 MISTAKE

The state of things believed to exist would, if true would

have justified the act done.

Mistake is a slip made,

not by design but by
mischance. Mistake can Mistake must be reasonable
be admitted as defence
provided:

• Mistake relates to the fact and not law

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.

 Indian Penal Code,1830

Section 76 in The Indian Penal
Therefore, It maybe analysed as
Act done by a person bound, or follows:
by mistake of fact believing 1. An act done by a person bound
himself bound, by law.—Nothing
by law in doing that or
is an o ence which is done by a
person who is, or who by reason 2. an act done by a person who
of a mistake of fact and not by believes himself to be bound by
reason of a mistake of law in good law in doing that
faith believes himself to be, bound
by law to do it. 3. the belief must be by reason of
mistake of fact and not by reason
of mistake of law
Illustrations

4. the belief must be bona fide

belief in good faith i.e he must
a) A, a soldier, res on a mob by the
believe in good faith.
order of his superior o cer, in
conformity with the commands of If the above conditions are fulfilled he
the law.
may plead in defense to any
S.76 prosecution for any offense.
b) A, an o cer of a Court of Justice,
being ordered by that Court to
arrest Y, and, after due enquiry,
believing Z to be Y, arrests Z. A has
committed no o ence. 

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 MISTAKE OF LAW MISTAKE OF FACT

“Mistake of fact” generally refers to a Mistake of law means mistake as to the existence
wrongful understanding by someone as of law or otherwise of any law on a particular
to the facts of a situation—the mistake subject as well as mistake as to what law is.
results in the person committing an Austin gave two reasons in support of the
illegal act. argument as to why ignorance of law is not
Mistake of fact is a defense to a crime excused. One is if ignorance of law is admitted as
where the mistaken belief if it were a ground for defense, the courts will be involved
true, would negate a mental state which
IGNORANTIA
FACTI DOTH
MISTAKE IGNORANTIA
JURIS NON
in question which it would scarcely be possible to
is an element of crime. solve and therefore would would lead the
EXCUSE EXCUSAT
administration of justice next to impracticable.
In R v tolson, justice coke observed that Secondly, ignorance of law would always be
an honest and reasonable mistake stands pleaded as a defense and the court would have to
in fact onisthe
A person same footing
supposed to know as
theabsence
laws of his 

prove every time whether the party was really
of reasoning
country but hefaculty as expected
cannot be in infancyto or
know the ignorant of the law.
perversion ignorance of ignorance of
laws of otherofcountries.
that faculty as in lunacy.
Therefore, the rule that
'ignorance of law is no excuse' cannot be applied fact is law is no Specifically, mistake of law can be used as a
In R v Tolson,
to foreign the accused
law. A mistake was law is treated as
of foreign excusable defence defense in four limited circumstances(source):
convicted
a mistake ofoffact.
bigamy.
Section She21 had
lays gone
down that a
through
mistake asa ceremony
to a law not ofinmarriage withinhas the
force in India
• When the law has not been published;
seven
same eyears
ect asof amarriage
mistake of after she
fact. had the
Hence, • When the defendant relied upon law or
been deserted
contract will be by
void,her husband.
if both She are under a
the parties
statute that was later overturned or deemed
believed
mistake asintofood faithlaw.
a foreign and
 on reasonable unconstitutional;
grounds that her husband was dead. It
was held that a bona fide belief on • When the defendant relied upon a judicial
reasonable grounds in the death of the
husband at the time of her second decision that was later overruled; or
marriage afforded a good defense to the • When the defendant relied upon an
charge of bigamy.
interpretation by an applicable official.
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MISTAKE OF FACT AS DEFENCE

Mistake is a defense because when an act is done by
reasons of mistake of fact, mens rea necessary to
constitute a crime is absent or is negatived.
What are the exceptions? ( situations when mistake of
fact cannot be pleaded as a defense) GOOD FAITH
• Cannot be pleaded when responsible enquiry would
have elicited true state of facts.For example when a
person marries on a honest that his previous
marriage has been dissolved by a decree from the
belief court, however the decree has not been NATURE OF
granted. He is liable for bigamy because there was MISTAKE
no reasonable inquiries made and if made would
elicited true state of his marriage,
When the act is penalized by statue without reference to
the mind of the wrong doer.

 Mistake as a factor of attenuation imply a rule that when a person knows or mistakes the existence of the relevant events, he does not see
or anticipate the consequences of the act unlawfully. Therefore, his trial should proceed with the fiction that the facts were just as he had
wrongly thought them to be, not so. A court has its guilt to be determined by the “believed” facts and not the “real” facts. The first
NATURE OF condition states that the mistake under which the act was done must be of the nature that if the supposed situation has been true, the
liability attached to the person must has been prevented . The second condition states that the mistaken belief must be a reasonable one.

MISTAKE
Superstitions or false beliefs that a reasonable prudent man will not believe to be true, cannot exempt a person from criminal liability.
The mistake should relate to mistake of fact not to the mistake of law or ignorance of law. These two sections of the Indian Penal Code,
1860 are guided by the legal maxim, ‘Ignorantia facti excusat and Ignorantia juris not excusat’.
It means that the ignorance of fact is an excuse and ignorance of law is no excuse.
An essential thing to be noted here is that the two sections provides exemption from the criminal liability only for those offences that
were done under mistake of fact and not under mistake of law. ‘Ignorantia juris not excusat’ means that the ignorance of law is no
excuse. An individual is presumed to know the laws of the land, the nature of work he is doing and its consequences thereof.

That the state of things believed

to exist would, if true, have
justi ed the act done;

ESSENTIALS
That the mistake must be
OF B
reasonable
MISTAKE
C

The mistake must relate to fact and not

to law.

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GOOD FAITH
One of the essential ingredients that an offender requires to get ss 76 and 79 defense is that his
conduct must be taken in ‘good faith’. The term ‘good faith’ has been defined in section 52 IPC as
“Nothing is said to be done or believed in ‘good faith’ which is done or believed without due care
and attention”.
Section 3 (22) of the General Clauses Act 1897 defines the term ‘good faith’ as “A thing shall be
deemed to be done in ‘good faith’ where it is in fact done honestly, whether it is done negligently or
not”.
In Harbhajan Singh v State of Punjab, it was held that “The element of honesty which is
prescribed in the General Clauses Act 1897 is not incorporated in section 52 of the IPC. Under the
General Clauses Act, the stress is on the moral element of honesty and right motive. If the intention is
hIf the intention is honest, then even if the act was negligent, it is deemed to be done in good faith” .
As articulated by the Madras HC in Re Ganpathia Pillai, “under the IPC, the emphasis is on
whether the person has done an act with due care and attention. So, if a person, howsoever honest in
his intention, blunders, he cannot get the protection under the IPC because apart from an honest
intention, he is also expected to act with due care and caution.”

 SECTION 79
79. Act done by a person justified, or by mistake of fact
belie ing 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 THE PERSON DOING
mistake of law in good faith, believes himself to be An act done by a THE ACT IS EITHER
JUSTIFIED BY LAW OR
person under
justified by law, in doing it. mistake of fact BELIEVES HIMSELF TO
BE JUSTIFIED BY LAW
IN DOING THE ACT.
Illustration A sees Z commit what appears to A to be a
murder. A, in the exe cise, to the best of his judgment
exerted in good faith, of the power which the law gives to Mistake must
related to a
Mistake must
be on bona
all persons of apprehending murde ers in the fact, seizes Z, fact and not fide and
in order to bring Z before the proper authorities. A has law reasonable
grounds.
committed no offence, though it may turn out that Z was
acting in self-defence.

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Section 79 allows for the defence of acts justified by law or that are legitimately justified by law by
mistake of fact. Because of his bona fide conviction, though misguided, it exonerates the doer, and
removes his guilt.
This comes into play only when a person is accused of having real or implied legal justification in doing
the act and that the same has been undertaken with the intention of upholding the rule in good faith to the
best of his judgement. In view of the provisions of s 79, an act wholly justified by law does not constitute
an offense at all.
1. Bound by Law
According to section 76 IPC, actions committed by a person bound by law or by mistake in fact are
shielded from criminal liability. The section’s illustrations explain the meaning of the law-bound word.
2. Acts done under the order of a Superior Authority
Any act performed under superior authorities’ instructions is not covered. Where the higher authority’s
directives are unconstitutional, the delegated officer will not be exempted from responsibility. When a
policeman shoots and kills an officer, he cannot escape criminal responsibility as it is obviously illegal for
the order to be ordered and he has noticed the illegal nature of the order.

AREN’T SECTION 76 AND 79 OF IPC SAME?

Well, to some extent.

Section 76 of the Indian penal Code deals with situations where a person is
under a mistaken belief that he is BOUND by law to do some act but in
section 79 the person is under a mistaken belief that he JUSTIFIED by law
in doing an act.
One is a legal compulsion and the other is a legal justification.