Certain people are subordinated to someone as per the law. For example: – a relationship of a master and servant, or a subordinate officer in the Police force.
There arises a pertinent question in such a relationship that if the superior ordered something contrary to the law. In such situations is the person who is following the orders excused if he commits any offence in the due course of following the orders. In this article, we would be analysing the same.
Bound by law
An accused individual in good faith believes himself or herself to be bound by law to that act, according to Section 76 of the Act.
“Bound by law” indicates the fact that, despite the true state of the circumstances showing that the offence has been committed, the person in error believed that he was bound by law to act in that particular manner in which he acted.
To understand it more clearly, we can take an example. If the servant kills his master in the night due to a mistake believing him to be a thief, who has entered the house. In this situation, the servant was bound by the law to protect the property of his master.
To profit from section 76, a person must demonstrate the existence of evidence that would explain his view, in good faith, that he was obligated to act by law.
The word “legally bound to perform” is defined in Section 43 of the IPC as acts that, if not done, would result in a person committing illegal conduct.
Justified by Law
Acts that are authorised by law or which are mistakenly believed that they are justified by the law are protected under Section 79. It absolves the perpetrator because he had a genuine belief that, even though the act was incorrect, he was not responsible for the same.
It only comes into play when a person has a real or perceived legal justification for performing the conduct which is in question, and that the act had been performed to further the law to the best of his ability and in good faith.
Kiran Bedi & Jinder Singh v Committee of Inquiry
In the case of Kiran Bedi & Jinder Singh v Committee of Inquiry, the court stated that Section 79 does not protect the perpetrator of an act that is entirely unjustified or goes beyond what is strictly justified in law. In the case of State of Andhra Pradesh v N Venugopal the Supreme Court, while overturning the order of the High Court stated that to be able to assert that an act is performed under a legal provision, one must first establish that the provisions and the conduct are in proximity.
It is important to understand the aspect of good faith because it is one of the essential ingredients which is required to be proved by an accused to prevail the protections which are enumerated in sections 76 and 79 of the Indian Penal Code. It is as well important for the accused to prove that the actions taken by him were in good faith.
The phrase “good faith” has been defined in Section 52 of the IPC which states that nothing would be said to have been done in good faith if it is done without due care and attention.
This section defines good faith in a way that is somewhat negative but section 3(22) of the General Clauses act 1897 defines the same in a positive sense by saying that anything is done in ‘good faith’ when it is done honestly, whether negligently or not. The emphasis of the General Clauses Act is on the moral element of honesty and proper motive. Even though the act was careless, it is regarded to be done in “good faith” if the motive is honest.
The emphasis under the Code has been on the aspect that whether the person performed an act with due care and attention. So, even though a person had the best of intentions, if he makes any mistake, he will not be protected by the IPC since, in addition to having the best of intentions, he is also obliged to behave with caution and care.
In the case of Re SK Sundaran, the court thought that the degree of reasonableness in the care expected to be exercised is referred to as due care. The investigation must be as thorough as a reasonable and prudent individual would conduct with a sincere desire to learn the facts.
It has been further clarified by various judgements that what constitutes proper care and attention, however, is determined by the situation in which a man would find himself. The law does not demand the same level of care and attention from everyone, irrespective of their position.
A reference to the accused’s capacity, intelligence, and position, as well as the conditions in which he acts, becomes a relevant criterion in determining good faith.
When the offence is based on the existence of particular conditions which may be definitive or aggravating and the accused’s awareness of those circumstances, the question of whether the accused was obligated to inquire about and get acquainted with those circumstances becomes critical and, it was required for him to do so, his omission to do so would be construed as a lack of good faith, depriving him of the benefit of the protections which are provided under section 76 and 79 of the IPC.
Acts Done under the order of the superior authority.
Every act which has been performed under the orders of the superior authority cannot be said to be protected under sections 76 and 79 of the IPC. If a constable in the police shoots one of the offenders under the order of his superior officers, then in that situation he can not escape from the criminal liability if the order here was illegal and the constable was aware of the illegality of it.
He may be able to avail the benefits which are under section 76 of the IPC if the same act is done when there occur certain circumstances which would justify the actions instead of the situations in which he was placed.
The IPC, on the other hand, does not recognise a subordinate officer’s duty of blind devotion to his superior. He will not be relieved of liability until and unless he can establish that the command was legal and was binding on him, or that the circumstances were such that it led him to believe, in good faith, that he was required by law to abide by it.
Dakhi Singh v. State
In the case of Dakhi Singh v. State, the accused officer had arrested the deceased person, who was suspected of being a thief and the deceased resisted the arrest. He died as a result of the accused’s use of force.
Though section 46 of the Criminal Procedure Code provides that a police officer may use all means which are necessary to make an arrest, it also states that it does not grant the officer the authority to kill someone who is not charged with a crime punishable by death or life imprisonment.
As a result, it was decided that while the deceased was just suspected of stealing, sections 76 and 79 of the Indian Penal Code did not justify his death.
Gopalia Kallaiya v Emperor
In the case of Gopala Kallaiya v Emperor, the Court thought that section 76 of IPC protects arrests that are made according to a court’s warrant. As a result, if any person executes an arrest warrant and unintentionally arrests the wrong person, he will benefit from this clause.
If someone maliciously obtains an order from a magistrate to harass and humiliate a person, he will be barred from seeking protection under section 76.
Chaman Lal v Emperor
In the case of Chaman Lal v Emperor, it was held that section 76 does not provide any defence to convict warders and convict authorities who assaulted and tormented criminals, resulting in the death of two of the convicts.
It was an illegal command, and the prison warders should have understood that the cruel beating of inmates is against the law. At best, the fact that the convict warders carried out the officials’ orders could only be used to lighten the punishment.
To conclude it can be said that illegal activities which are committed on the commands of a parent, master, or superior will not be deemed a defence or a justification to be entitled to acquittal based on a mistake of fact.
If the superior’s order is following the law, the accused subordinate person is protected; however, if the superior’s order is not following the law, the subordinate performing the act cannot claim protection under the mistake of fact believing that he or she is obligated by law to perform that act.
Dr. K. I. Vibhute (ed.),(ed.), D. K. (2018). P.S.A. Pillai’s Criminal Law. Nagpur: LexisNexis ButterworthsWadhwa.
Reddy, S. A. (n.d.). The Indian Penal Code: Differences between justification and excuses and Mistakes, Necessity and Accidents as a defence. Manupatra.