DOCTRINE OF NECESSITY UNDER I.P.C

As a general principle of law, a man is presumed to know the nature and consequences of his act and is, therefore, held responsible for it. However, there are certain exceptions to this general rule, wherein a person may be excused of crime. These exceptions in India are dealt under the chapter IV of the Indian Penal Code, 1860 captioned as ‘General Exceptions’. The chapter basically deals with two classes of exceptions, namely:

1) Excusable exceptions

Excusable defences are those where the act committed is excused for want of necessary requirement of mens rea. In such cases the act is not criminal because the intention was not criminal.

2) Justifiable exceptions

Justifiable defences are those where the act committed is not excused but is justified on account of some considerations neutralizing the liability otherwise incurred. In such cases the act is criminal but not punishable as it was otherwise meritorious.

Among various exceptions one which negates the criminal liability of an accused is defence of necessity.

The justification of necessity as a defence is based on the common English proverb, Quod necessitas non habet legem which means necessity knows no law. That is to say, if there is a necessity, then even the person who is very intelligent and strict follower of law will breaks the law!

Indian Legislature intended to give sanction to this proverb and thus incorporated it under section 81 the Indian Penal code, 1860 and recognizes necessity as a defence to exempt criminal liability.

Eminent jurist S.Pollard has recognized the defence of necessity as long as 1550 in the renowned case of Ranigar v. Fogossa:

“In every law there are some things which they happen a man may break the words of the law, and yet not break the law itself, and such things are exempted out of the penality of the law……”

Q.1- Discuss necessity as a defence under the code and explain its essentials with the help of leading case laws.

Ans- Section 81 of the code embodies the defence of necessity. It states that “nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property”.

Thus the section though grants immunity to a man from criminal charge with respect to acts committed under compelling circumstances forced by necessity but it is to be noted that the section does not give blanket immunity from liability in all circumstances. It is available only in exceptional cases as stated in section 81 of the code namely:

i. Where the act was done in order to avoid consequence which could not otherwise be avoided, and which, if they had followed, would have caused irreparable damages;

ii. That no more harm was done than was necessary for that purpose; and

iii. The evil inflicted was not disproportionate to the evil avoided.

The justification for exemption from criminal action on the ground of necessity has been well summarised by Lord mansfield in the celebrated case of George Stratton, (1779) in the following words:

“Whenever necessity forces a man to do an illegal act, forces him to do it, it justifies him, because no man can be guilty of a crime without the will and the intention of his mind. It must be involuntary....A man who is absolutely by natural necessity forced, his will does not go along with the act”.

Thus, an act which would otherwise be a crime in some cases is excused if the person accused can show that it was only done in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil.

ESSENTIALS OF THE DEFENCE OF NECESSITY:

In order to avail the benefit of section 81 following condition must be satisfied, viz.,

i. The act must have been done without any criminal intention to cause harm.

Thus, in order to avail the defence under this section it is necessary that the criminal act is done without any evil intention, as intentional wrong-doing is in no circumstances justified under the code.

Further, it is to be noted that the wrong-doer will not be held responsible for the harmful consequences of his act, even if he had knowledge that his act is likely to cause harm, provided that the act was done in good faith to avoid or prevent some other harm.

For example: x sees a tiger attacking Y. X in order to save Y shoots the tiger fully knowing that Y and tiger are so close that he might kill Y. Here when X kills Y, he is guilty of no offence as he had no intention to kill Y though he had knowledge that his act is likely to cause harm to Y.

ii. The act must be done for the purpose of preventing or avoiding other harm to person or property.

Section 81 is based on the principle that, causing of lesser evil may be justified to prevent greater evil either to person or property. Thus, the defence under section 81 will be available only if the act is done for the purpose of preventing or avoiding other harm either to the person or to the property.

However, it is noticeable that the harm must have been done in order to prevent greater harm.

For example:

• In the well-known mouse's case of 1608, a bargeman threw the goods of the plaintiff out of a barge in order to lighten the barge in a storm and for the safety of the passengers; it was held that not only the bargeman but any passenger would be justified in taking any such action for the safety of the passengers.

• In the case of Maleverger v. Spinke, (1537) the pulling down of a house was held justifiable in order to prevent a fire from spreading

Further, the explanation attached to the section clearly stipulates that, it is a question of fact to be decided in accordance with each case as to whether the harm to be prevented or avoided was of such nature as to justify/excuse taking the risk of the act.

For instance: In the case of Dhania Daji ( 1868), the accused placed poison in a toddy pot with the intention of detecting thief who was in the habit of stealing toddy from his pots. The toddy was drunk by soldiers and caused injury; it was held that the accused was guilty under section 328 of the code and no defence of section 81 shall be available to him as there was no such necessity of detecting the thief that justifies/excuses taking of such a grave risk that may result in death of a person.

iii. The act must be done in good faith.

Necessity in order to attract the attention of section 81 must be a bona fide necessity in good faith. However, it is to be noted that the question of good faith is considered with reference to the position of the accused and the circumstances under which he acts.

The expression ‘good faith’ in the section is interpreted with reference to section 52 of the code, which states that “Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention”.

Q.2 “Self defence may be the necessity but not the self-preservation” elaborate.;OR

How far section 81 of the code justifies homicide? ; OR

Does the Doctrine of Self-Preservation apply to the exception of necessity?

Ans-The Indian penal code, 1860 recognizes the necessity of self-defence as a good defence from criminal liability under section 96-106, but it does not sanctions the necessity of preservation of one’s own life by putting an innocent’s life in jeopardy.

Thus in a nutshell, the necessity which justifies homicide is of two kinds:

• The necessity which is of private nature i.e. self defence (section 96-106)

• The necessity which relates to the public justice and safety, I.e. homicide is justifiable when it is necessary for the good of the society.

This concept was established by the English court in the well know Mignoet’s case or Queen v. Dudley and Stephens (1884). In this landmark case, it was held that the shipwrecked sailors who killed the cabin boy for food were guilty of murder, notwithstanding the finding of the jury that if the men had not fed upon the body of the boy, they probably would not have survived to be rescued and that the boy, being in a much weaker condition, was likely to have died before them.

Lord Coleridge in the case observed said that:

“To preserve one’s life is generally speaking a duty, but it may be the plainest and highest duty to sacrifice it. War is full of instances in which it is a man’s duty not to live,but to die. A man has no right to justify deliberate killing of an unoffending and unresisting man howsoever great the temptation might be….. therefore the prisoner’s act was wilfull murder".

Further the court on the question of self-preservation in extreme cases of hardships laid down three principles,viz.,

1. Self-Preservation is not an absolute necessity.

2. No man has a right to take other's life to preserve his own life, unless it is in his self-defence i.e. private defence (section 96 to 106 IPC).

3. There is no necessity that justifies private homicide, i.e. to conserve one’s life, as distinguished from public necessity.

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JUDICIAL SERVICE EXAMINATION QUESTIONS

1. The doctrine of Necessity has been elaborately considered in the landmark decision of

a. R v . McNaghten , (1843) 8 Eng Rep 718

b. Basdev v State of PEPSU , AIR 1956 SC 488

c. R v . Dudley and Stephens , ( 1884) 14 QBD 273

d. Bimbadar Pradhan v . State of Orissa , AIR 1956 SC 469

[ Haryana (J) 2015 ]

2. Necessity as a defence cannot be claimed when the act has been done :

a. With good faith

b. Without criminal intent

c. With inherent risk of causing harm

d. For avoiding other greater harm

[ Uttarakhand (j) 2014 ]

3. Which one of the following cases is related to the defence of Necessity?

a) M'c Naughten case

b) DPP v. Beard

c) R . v. Dudley and Stephen

d) K.M .Nanavati v . State of Bombay

[ Uttarakhand (J) 2002]

4. Read the following:

1) R.v.Dudley & Stephen is the case related with Necessity.

2) State v. K.M . Nanavati is the case related with murder on grave and suddenprovocation.

Of the above :

a) is true but (2) is false

b) is false but (2) is true .

c) Both (1) and (2) are true

d) Both (1) and (2) are false

[U.P. A.P.O .2015 ]

5. The famous case of R. v. Dudley and Stephen’s was related to which of the general exceptions of criminal liability?

a) Mistake

b) Necessity

c) Private defence

d) Unsoundness of mind

[U.P.P.C.S. 2004]

6. Which one of the following case is related to the defence of Necessity :

a) D.P.P . v. Beard

b) R . v . Dudley and Stephen

c) R . v. Lipman

d) Mc ‘ Naughten case

[ U.P.P.C.S. 2002]

7. X and Y , Swimming in the sea ,after a ship wreck , got hold of a plank . The plank was not large enough to support both . X having no other option , pushed Y who was drowned . X has committed

a) Culpable homicide

b) Murder

c) The offence of causing death by negligence

d) No offence

[ Uttarakhand(J) 2002]

8. Which one of the following pairs is not correctly matched?

a) Mens rea _ R v. Prince

b) Necessity _ D.P.P. v. Beard

c) Insanity _ McNaghtens case

d) Intoxication _ Basudeo v. State of Pepsu

[ U.P.P.C.S (J) 2012 ]

9. ‘A’ placed poison in a teddy pot with the intention of detecting thief who was in the habit of stealing toddy from his pots . The toddy was drunk by and caused injury to ‘D' who purchased it from an unknown vendor . In the case

a) ‘A' is not liable for any offence

b) ‘A' is liable under section 322 Indian Penal Code

c) ‘A' was liable under Section 328 Indian Penal Code as there was no such Necessity of detecting the thief as would justify the taking of risk of causing to be taken an unwholesome thing with intention to injure

d) None of the above answers is correct

[U.P .Lower (special) 2008]

10. Defence of Necessity is not available to excuse killing of someone to protect the life of many .This principle which is followed in India was laid down earlier by the Queens Bench Division in the following case

a) R .v. Moore

b) R . v. Dudely and Stephen

c) R. V. M'c Naughten

d) R. V. Mc ‘ person

[ M .P . H .J .S .2010]

11. ‘A ‘ pulls down houses in good faith of saving human lives and property in a great fire . In this case,which of the following statements is correct ?

a) He has committed an offence of mischief

b) He has committed an offence of house trespass

c) He has committed an offence of house breaking

d) He has committed no offence

[ Delhi A.P.P.2008 ]

12. In the following case A does not have the right to kill B :

a) A and B are engaged in a fight and B is bent upon killing A

b) B asks A to do some thing which A refuses .B gets enraged and rushes toward A menacingly with a dagger shouting that he would kill him

c) B wants to rape A

d) d) A and B are on a ship and have been starving for days and the only way of survival left was that one should kill the other and eat his flesh

[ U.P.P.C.S . 1999]

13. Which one of the following is not an essential ingredient of the defence of Necessity under section 81 of the I.P C

a) The act must have been done in good faith

b) The act must have also been done for the purpose of preventing other harm

c) The harm aimed to be prevented must always relate only to property

d) The harm aimed to be prevented may relate to person or property

[ U.P .P.C.S .2010 ]

14. Which one of the following cases relates to the defence on the ground of Necessity?

a) R.v.Walker

b) R. V. Arnold

c) R.v. Dudley and Stephen

d) R.v. White

[ U.P. P.C.S . 2010 ]

15. To preserve one’s life is generally speaking a duty, but it may be highest duty to sacrifice it. This observation was made in Queen v. Dudley and Stephen by

a) Lord Denman

b) Lord Coleridge

c) Lord Acton

d) Justice Pollock

[ U.P.P.C.S (J) 2012 ]

16. In which of the following cases ‘Necessity ‘ under Section 81 of Indian penal code cannot be pleaded as a defence ?

a) Self – defence and prevention of violence

b) Prevention of harm to the accused at the expense of an innocent person

c) Self – preservation is an absolute necessity

d) Choice of evils affecting person other than the accused

[ U.P A.P.O .2007]

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1.C , 2.C , 3.C , 4.C , 5.B , 6.B , 7.D , 8.B , 9.C , 10.B , 11.D , 12.D , 13. C , 14.C , 15.B , 16.C

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