Q. In what cases consent, compulsion or necessity may be a sufficient defence against a charge of crime. (2002) (2003) (2004/A) (2005/S) (2006/A)
View more the latest threads:
- Downloadin problem
- Define and explain common intention and common object. Is...
- Define criminal conspiracy discuss its kinds and...
- Define criminal justice? What are different theories of...
- defince Zina-bil-jaber and state the punishment provided...
- Define unlawful assembly. When it becomes riot
- Define trespass what punishment is provided for this...
- what is negligence ? What are its different theories
- Define theft and explain when it is liable to hadd? What...
- Define and distinguish between theft and extortion?
Chapter IV P.P.C deals with exception to criminal liability in general. There are cases where the consent, compulsion or necessity may operate as a defence to a criminal when the case when the case of an accused comes into these sections, he can take the benefit of it.
2. Relevant Provisions:
Following are the relevant provisions of P.P.C regarding the concerned topic.
Section 81 for necessity
Section 94 for compulsion
Section 87 to 91 for consents.
3. Necessity As A Defence To Criminal Offence U/Sec 81:
(I) Meaning Of Necessity:
Necessity may be defined as under “Necessity means unavoidable circumstances or situations critical in nature leaving no choice in action.”
(II)Necessity As A Defence U/Sec 81:
Where an act is done voluntarily, but in good faith and without any criminal intention to cause harm for the purpose of preventing or avoiding other harm to person or property, it will be not an offence.
(III) Ingredients Of Sec. 81:
(i)No Intention to Cause Harm:
In order to get the benefit of sec, 81, the act complained of must be done without any criminal intention to cause harm. It is not of the doctrines of criminal jurisprudence that no crime is committed unless it is with a criminal intention. This doctrine is included in sec 81 of P.P.C.
(ii) Act Done In Good Faith:
The act must be done in good faith in order or prevent or avoid harm to the person or property.
(iii) To A void Harm to Person or Property:
An act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided and which may inflicted upon him or upon others inevitable and irreparable and irreparable evil.
`A` in a great fire, pulls down house in order to prevent the configuration from spreading in good faith of saving human life or property. `A` is not guilty of the offence.
4. Consent As A Defence To A Criminal Offence:
(I) Meaning Of Consent:
The word consent has not been define by P.P.C .So it may be define in a general way.
“Consent means an active will in the mind of a person to permit the doing of the act complained of and knowledge of what is to be done or of the nature of the act that is being done, is essential to a consent to act”.
(II) Consent U/Sec 90:
Section 90 of P.P.C says what is not consent and thus runs in negative terms. According to it a consent is not a consent intended by this code,if it is given.
(i) By a person under fear of injury, or by a person under misconception of fact and the person obtaining the consent knows or has reason to believe that the consent was giving in consequence of such fear or misconception. Or
(ii) By a person of unsound mined or who Is intoxicated and who is unable to understand the nature and consequence of that to which he gives his consent, or
(iii) By a person under twelve years of age.
(III)Cases Where Consent Justification For An Offence:
(i)Act done by consent u/sec 87:
A person who causes injury to another person above eighteen years of age, who has given his consent to suffer the harm, by doing an act which is not knowing by the door to be likely to cause death or grevious hurt, does not commit an offence.
Sec.87 is based on the following maxim.
- Basis of sec.87:
“volenti non fit injuria.”
(he who consents suffers no injury)
Sec. 87 does not permit a man to give his consent to anything intended or knows to be likely to cause his own death or grevious hurt. Ordinarily games such as boxing, football are protected by this section.
- Scope of sec.87:
(ii) Act Done in Good Faith for Person’s Benefit u/sec 88:
Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause or be intended by the doer to cause or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith and who has given a consent, whether express or implied, to suffer that harm or to take the risk of that harm.
Under sec. 88, a person from whose benefit a thing is done may consent that another shall do that thing even if it cause harm to him. Under it any harm except death may be inflicted.
- Scope of sec.88:
‘A’ a surgeon knowing that a particular operation is likely to cause death of ‘Z’ and intending in good faith Z’ s benefit, performs that operation on Z’ s consent ‘A’ has committed no offence.
(iv) Act Done in Good Faith for Benefit of Child or Insane Person by Consent of Guardian u/sec 89:
Nothing, which is done in good faith for the benefit of a person under twelve years of age or of unsound mind by or by the consent of the guardian, is an offence by reason of any harm which it may cause or be intended by the doer to cause or be known by the doer to by likely t cause to that person.
To attract sec. 89, following conditions need to be fulfilled.
- The act was done for the benefit of child or lunatic
- It was done in good faith by or by the consent of guardian.
Following are the exceptions to sec.89.
(iv)Exceptions Where Consent will not Justify as Defence u/sec 91:
- It shall not extend to the intentional causing of death or to the attempting to cause death.
- It shall not extend to the doing of anything which the doer knows to be likely to cause death, for any purpose other than the preventing of death or grevious disease or infirmity.
- It shall not extend to the voluntary causing of grevious hurt, unless it be for the purpose of preventing death or the curing of any grevious disease or infirmity.
- It shall not extend to the abetment of any offence.
Section 91 says that consent u/sec 87, 88 and 89 will only condone the act causing harm to the person giving the consent which will otherwise be an offence. Acts which are offences independently of any harm which they may cause will not be covered by such which they may cause will not be covered by such consent. E.g. Causing miscarriage, public nuisance, offences against public safety, morals etc.
5. Compulsion As A Defence To Criminal Offence U/Sec 94:
Section 94 provides exception for offences committed by a person who dose any act except murder and offences against the state punishable with death, under fear of instant death, but fear of hurt or even of grevious hurt is not a sufficient justification. Even fear of future death is not sufficient for availing the protection provided by this section.
(I) Ingredients Of Section 94:
Following are the essential ingredients of sec.94
(i) The act has been done under compulsion.
(ii) The murder or offence against the state punishable with death should have not been committed.
(iii) The doer of the act did not voluntarily put himself in the situation.
(iv) The fear under which he did the act was not short of instant death.
To conclude, I can say, that the consent, compulsion or necessity may operate as a defence to a criminal offence and the burden will lie upon the accused to prove these circumstances or exceptions under Article 121 of Q.S.O, 1984, and the court shall presume the absence of circumstances brining the case within any of the exceptions.
There are currently 1 users browsing this thread. (0 members and 1 guests)