MISTAKE OF FACT AND MISTAKE OF LAW

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 are dealt under the chapter IV of the Indian Penal Code 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 mistake of fact. Provisions related to the excusable defence of mistake of fact are dealt under section 76 and 79 of the code.

Q.1 Elaborate section 76 and section 79 of the code with the help of leading case laws.

Ans- Section 76 and 79 of the code deals with the provisions of mistake of fact as a defense:

SECTION 76:

Section 76 deals with the Act done by a person bound, or by mistake of fact believes himself to be bound by law.

It 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 by reason of a mistake of law in good faith believes himself to be, bound by law to do it”.

Section 76 deals with two classes of cases wherein a person is excused from criminal liability on two grounds, viz.,

1) First part exempts those people (public servants) from criminal liability who are bound by law to do something and does it. Thus according to this part the criminal responsibility is negated, if an act is done by any person who is bound by law in doing the act. That means due to such act if any injury occurs to any person, the doer shall not be made liable for his act.

For example: X, a soldier, fires on a mob by the order of his superior officer in conformity with the commands of the law. Here X has committed no offence as he was bound by law to do the act (i.e. to discharge his legal duty)

NOTE: It is to be noted that in this part there is no mistake of fact.

2) Second part exempts those people from criminal liability who believes in good faith, owing to a mistake of fact and not a mistake of law, that he is bound by law to do something and does it. Thus according to this part the criminal responsibility is negated, if an act is done by any person who in good faith reasonably believes himself to be bound by law in doing it. That means due to such act if any injury occurs to any person, the doer shall not be made liable for his act.

For example: A, an officer of a Court of Justice, being ordered by that Court to arrest Y, and after due enquiry, believing Z to be Y, arrests Z.

Here A has committed no offence, as he in good faith after due enquiry by the reason of mistake of fact arrested Z. Further the police officer in good faith believed that he was bound by law to arrest Y, because of the direction of a court of law.

NOTE: It is to be noted that this part of section embodies mistake of fact.

Essentials of Section 76

To establish the defence of mistake of fact under section 76, the doer must satisfy the following conditions:

I. The act must have been done by a person who is bound by law in doing that; or ( Elaboration - same as enumerated above )

II. The act must have been done by a person who believes himself to be bound by law in doing that; ( Elaboration - same as enumerated above )

III. Such belief must be by reason of a mistake of fact and not by reason of a mistake of law.

In order to avail the benefit of section 76, the mistake must relate to fact and not to law. The justification for exemption on the ground of mistake/ignorance of fact and not on mistake/ ignorance of law is based on the common law principle of ignorantia facit doth excusat, ignorantia juris non excusat (i.e. ignorance of fact is an excuse, ignorance of law is no excuse).

This rule is based on the fiction that ‘every man knows the law, or at any rate ought to know the law under which he lives or to which he is subject for the time being’.

Thus only mistake/ignorance of fact is a defence under the common law, provided that the mistake/ignorance was in respect of a material fact i.e. a fact essential to constitute a particular offence. It is only such ignorance that negates the mens rea necessary to constitute the offence.

In the case of R. V. Tolson, Justice Coke observed that “honest and reasonable mistake stands in fact on the same footing as absence of the reasoning faculty, as in infancy, or perversion of that faculty, as in lunacy”.

This ethical Principle has long been expressed in criminal law, is apparent from an early 17th century case of R.V. LEVETT. In this very case the accused was held not guilty of unlawful homicide, when he killed a woman (a friend of his servant) who was hiding behind a curtain in his house, mistakenly believing her to be a burglar. It was held that it is a case of ‘pure mistake’ as whatever the accused did, he did it ignorantly with no intention of killing the woman, but rather of killing the burglar.

HOWEVER THERE ARE TWO EXCEPTIONS TO

THE PRINCIPLE OF IGNORANTIA FACIT DOTH EXCUSAT

• First, mistake/ignorance of fact is not allowed to be pleaded, when responsible inquiry of it would have elicited the true facts.

For example: In the case of R. V. Wheat and stocks, the defendant was held guilty of bigamy though he did the second marriage on an honest belief that his previous marriage has been dissolved by a decree of divorce, whereas in fact the decree of divorce has not been granted. The justification behind the judgment is that a responsible inquiry about the dissolution of the previous marriage was not done by the accused before performing the second marriage.

• Second, mistake/ignorance of fact is not accepted as a plea at all, when it is penalized by a statute without reference to the mind of the wrong-doer.

For example: In the case of R. V. Princes, the accused was charged of unlawfully taking an unmarried girl under the age of 16 years out of possession and against the will of her father. It was found that the accused in good faith and reasonably believed the girl to be older than 16 years. Here the accused’s mistaken belief about the age of the girl was held not to be a good defence to negate the criminal liability for the offence of abduction because section 55 of offences against the Person’s Act, 1857 penalizes the offence of abduction without the proof of guilty intention on the part of wrong- doer.

IV. Such belief must be a bona fide belief in good faith.

Once the accused establishes the existence or the probability of the existence of that attitude of his mind which he asserts to have been at the time of commission of crime. It has to be seen whether the appearance of facts, which the accused pleads to have misled him, would have misled a ‘reasonable man’ i.e. what accused believed, must be bona fide and in good faith.

Thus mistake/ignorance of fact in order to attract the attention of section 76 must be a bona fide mistake in good faith based on genuine grounds.

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”.

NOTE :However, it is to be noted that the law does not expect the same standard of care and attention from all persons regardless of the position they occupy therefore it considers the question of good faith with reference to the position of the accused and the circumstances under which he acts.

SECTION 79:

Section 79 deals with the Act done by a person justified, or by mistake of fact believing himself, justified, by law.—

It 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 law, in doing it”.

*THE LAW RELATING TO MISTAKE OF FACT HAS BEEN DISCUSSED IN DETAIL UNDER THE ELABORATION OF SECTION 76 OF THE ARTICLE.HERE THE ARTICLE DEALS WITH THE INGREDIENTS WITHOUT ELABORATION*

Section 76 deals with two classes of cases wherein a person is excused from criminal liability on two grounds, viz.,

1. First part exempts any person from criminal liability who is justified by law to do something and does it.

2. Second part exempts those people from criminal liability who believes in good faith, owing to a mistake of fact and not a mistake of law, that he is justified by law to do something and does it.

Essentials of Section 79

To establish the defence of mistake of fact under section 79, the doer must satisfy the following conditions:

i. The act must have been done by a person who is justified by law in doing that; or ( Elaboration - same as enumerated in S. 76 )

ii. The act must have been done by a person who believes himself to be justified by law in doing that; ( Elaboration - same as enumerated in S.76 )

iii. Such belief must be by reason of a mistake of fact and not by reason of a mistake of law.

iv. Such belief must be a bona fide belief in good faith.

Q.2 Why mistake of fact is a good ground of exemption from criminal liability?

Ans- In order to make a man criminally responsible, four conditions are very fundamental, namely:

a. free will;

b. intelligence to distinguish between good and evil;

c. knowledge of facts upon which the good and evil of an act may depend;

d. knowledge that the act is prohibited by law.

Thus the distinction between good and evil necessarily depends on the knowledge of facts. And it is an ethical principle in criminal law, that a man who is mistaken or ignorant about the existence of a fact cannot form the necessary intention to constitute a crime and is therefore not responsible in law for his deeds. Therefore It is because of this mistake of fact is admitted as a good ground of exemption from criminal liability.

The justification for the exemption on the ground of mistake of fact and ignorance of fact is based on the common law principle of ignorantia facit doth excusat, ignorantia juris non excusat (ignorance of fact is an excuse; ignorance of law is no excuse).

Q.3 Is there any distinction between Section 76 and 79? If yes, elaborate.

Ans- Though Under both the sections a person claims exemption by reason of a mistake of fact from criminal liability against an act forbidden by law, but yes there are some fine distinctions between the two sections, which are stated below:

1. Under section 76 a person acts under legal compulsion under section 79 he act under legal justification

2. Section 76 grants exemption to a person from criminal liability when he believes himself bound by law to do a thing in a particular way although the true state of facts reveals his act to be an offence.

For example: X, a soldier, fires on a mob by the order of his superior officer in conformity with the commands of the law. Here X has committed no offence as he was bound by law to do the act (i.e. to discharge his legal duty)

Section 79 on the other hand deals with the cases where in a person by reason of a mistake of fact fields in cells to be justified by law and doing an hour away

For example: A seeing Z engaged in inflicting severe blow on B, seizes him and takes him to the police. Later it is shown that z was acting only in self-defense and as such the seizure of Z by A was unlawful. However, A is protected under section 79 since he acted in good faith under a mistake of fact.

3. Under section 76 a person acts because he believes he must act in a particular way; whereas under section 79 a person thinks he has justification for action and act accordingly.

---

JUDICIAL SERVICE EXAMINATION QUESTIONS

---

1..The maxim “ Ignorantia facti excusat “ relates to

a) Section 75 of the Indian penal Code

b) Section 76 of the Indian Penal Code

c) Section 77 of the Indian Penal Code

d) None of the above

[ Uttarakhand (J) 2009]

2 .Section 76 and 79 of IPC provide the general exception of :

a) Mistake of law

b) Mistake of fact

c) Both Mistake of law and fact

d) Either Mistake of law or of fact

[ Bihar H.J.S . 2019]

3. A , an officer of a court of justice ,being ordered by the Court to arrest Y , and ,after due enquiry ,believing Z to be Y , arrest Z. A is guilty of :

a) Wrongful confinement

b) No offence

c) Criminal negligence

d) Wrongful restraint

[ Delhi A.P.P.2010 ]

4. A, an officer of a Court of justice , being ordered by that Court to arrest Y and after due enquiry ,believing Z to be Y ,arrest Z . Here , A will

a) Not be liable according to Section 76 of the Indian Penal code ,1860

b) Not be liable according to Section 79 of the Indian Penal Code 1860

c) Not be liable under Section 109 of the Indian Penal Code 1860

d) None of the above

[ M.P.(J) 2001]

5 . Which one of the following is not an essential element of Mistake of fact under Section 76 of IPC ?

a) An act done by a person who is either bound or believes himself to be bound by law is doing that

b) The belief must be by reason of a mistake of fact

c) Belief must be bonafide belief in good faith

d) The belief may be by reason of Mistake of fact or law

[ U.P.P.C.S. 2009]

6 . In which section of India Penal Code the maxim ‘ Ignorantia juris non excusat ‘ is incorporated?

a) Section 78

b) Section 76

c) Section 79

d) None of the above [ U.P. A.P.O .2007 ]

7 . Which one of the following is not an essential condition of criminal liability:

a) Free will

b) Intelligence to distinguish between good and evil

c) Knowledge of facts upon which the good and evil of an may depend

d) Knowledge that the act is prohibited by law

[ U.P.P.C.S .2002 ,2009 ]

8. Which one of the following Section of IPC applies the maxim ,” Ignorance of law is no excuse “ ?

a) Section 77

b) Section 78

c) Section 79

d) None of the above

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

9 . The maxim Ignoranti juris non excusat

a) Does not apply to criminal offences

b) Admits exceptions

c) Admits exceptions only in case of a foreigner who cannot reasonably be supposed to know the law of the land

d) Admits no exception

[ Uttarakhand A.P.P .2009]

10. For the defence of Mistake of fact under the Indian penal Code

a) Actual mistake is sufficient

b) The act must be reasonable

c) The Act must be reasonable as well as committed in good faith

d) None of the above is correct

[ U.P. A.P.O 2006 ]

11. Under which Section of IPC a hangman who hangs criminal in pursuant to the order of judge under I.P.C is exempted from criminal liability?

a) Section 76

b) Section 77

c) Section 79

d) None of the above

[ Uttarakhand (j) 2011]

---

1.b, 2.b, 3.b, 4.d, 5.d, 6.b, 7.d, 8.c, 9.d, 10.c, 11.d

---