Mistake and judicial/executive acts

Theoretical overview

In layman’s language, the word “mistake” refers to an incorrect idea or action. However, the Indian Penal Code gives no definition of the word “Mistake.”

In the Indian Penal Code, the concept of mistake is dealt with under Section 76 and 79. These sections deal with the different types of mistakes that can be made, and the consequences that follow.

Section 76 – Act done by a person bound or by mistake of fact believing himself bound by law

According to this section, if a person does an act which would otherwise be an offence, but does it in good faith, believing that he is bound by law to do it, then he is not guilty of that offence. In other words, if a person acts under a mistaken belief that he is required by law to do something, he cannot be held criminally liable.

Ingredients of section 76:

Section 76 deals with two classes of cases wherein a person is excused from criminal liability on the ground of a mistake of fact, viz

1. When a person is bound by law to do something and does it; or
2. When a person believes in good faith, owing to a mistake of fact, that he is bound to do something and does it.

Example- A, a soldier, fires on a mob by the order of his superior officer, in conformity with the commands of the law. A has committed no offence. 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. A has committed no offence. 

Mistake of law is no defense since every man is presumed to know the law and hence responsible in case of its breach.

Section 77 – Act of Judge when acting judicially – Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law.

Judges and judicial officers have such work that requires protection and fearlessness in their work. Protection of judges is not a special feature but is accorded in all democratic countries.

Section 77 extends special immunity to a judge against criminal prosecution with respect to acts done by him judicially in discharge of his official duty. Thus, to avail the benefit of this section

1. The act must have been done by a judge in discharge of his official duty.
2. The act must be within his jurisdiction 
3. the act must be performed in good faith.

Section 78 – This section grants immunity to ministerial officers acting in pursuance of the judgement on direction issued under the authority or order of a court of law. In this section: 

1.  The officer is exempted from criminal prosecution provided the act is done in good faith.
2. Belief in the legality of the order.

Section 79 – Act done by a person who is justified by mistake of fact

This section deals with situations where a person commits an act under a mistaken belief that he is justified in doing so. For example, if a person believes that he is acting in self-defence when he commits an act, but his belief is mistaken, he may still be justified if his mistake was a reasonable one.

Ingredients of section 79:

Section 79 deals with two classes of cases wherein a person is excused from criminal liability on the ground of a mistake of fact, viz.,

1. When a person is justified by law to do something and does it; or
2. When a person believes in good faith, owing to a mistake of fact, that he is justified to do something and does it

Important differences

Relevant sections

1. Section 76 – mistake of fact. Act done by a person bound or by mistake of fact believing himself bound by law
2. Section 77 – judicial acts. Act of Judge when acting judicially – Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law.
3. Section 78 – judicial acts. This section grants immunity to ministerial officers acting in pursuance of the judgement on direction issued under the authority or order of a court of law
4. Section 79 -mistake of law. It deals with two classes of cases wherein a person is excused from criminal liability on the ground of a mistake of fact

Most important case laws

1. R. v. Prince, (1875): In this case, the accused was charged of unlawfully taking an unmarried girl under the age of 16 years out of the possession and against the will of her father. It was found that the accused was bona fide and reasonably believed the girl to be older than 16 years. The accused’s mistaken belief about the age of the girl was held not to be a good defense to an indictment for abduction because he intended to do and did a wrongful and immoral act, and not an innocent act. The Person’s Act, 1857which made the offence of abduction was intended to penalize the abduction without proof of any guilty intention on the part of the wrong-doer.
2. State of Rajasthan v. Raja Ram (1972): In this case, the accused was charged with murder for killing a person he believed to be a dacoit. The accused pleaded that he acted under a mistake of fact and believed that he was justified in killing the person. The court held that if the accused had a reasonable belief that the deceased was a dacoit and he acted in good faith, he cannot be held guilty of murder.
3. State of Maharashtra v. Balu (2015): In this case, the accused was charged with rape of a minor girl. The accused pleaded that he believed the girl to be of legal age and therefore had consensual sex with her. The court held that if the accused had a reasonable belief that the girl was of legal age, he cannot be held guilty of rape.
4. State of Kerala v. Kunhumuhammad (1999): In this case, the accused was charged with murder for killing a person he believed to be a thief. The accused pleaded that he acted under a mistake of fact and believed that he was justified in killing the person. The court held that if the accused had a reasonable belief that the deceased was a thief and he acted in good faith, he could not be held guilty of murder.
5. Ram Gulam Choudhary v. State of Bihar (1980): In this case, the accused was charged with murder for killing a person he believed to be a robber. The accused pleaded that he acted under a mistake of fact and believed that he was justified in killing the person. The court held that if the accused had a reasonable belief that the deceased was a robber and he acted in good faith, he could not be held guilty of murder.

Points to remember

• The Indian Penal Code gives no definition of the word “Mistake.”
• In the Indian Penal Code, the concept of mistake is dealt with under Section 76 to Section 79
• If a person does an act which would otherwise be an offence, but does it in good faith, believing that he is bound by law to do it, then he is not guilty of that offence
• Judges and judicial officers have such work that requires protection and fearlessness in their work. Protection of judges is not a special feature but is accorded in all democratic countries.