Theoretical overview
The doctrine of necessity as an exception to criminal liability is given under section 81 of the Indian penal code. An act which is likely to cause harm but done without criminal intent and to prevent other harm is no offence. Nothing is an offence merely by reason of its don 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.
It is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify the excuse of doing the act with the knowledge that it was likely to cause harm.
Illustration: –
A, in a great fire, pulls down house in order to prevent the fire from spreading. He does this with the intention in good faith of saving human life or property. Here if it be found that the harm to be prevented was of such a nature and so imminent as to excuse A’s act. A is not guilty of an offence.
Ingredients: –
- The act constituting the offence is known by the wrong doer to be likely to cause harm
- The act must be done without criminal intention to cause harm
- The act must have also been done for the purpose of preventing or avoiding other harm
- The act must have been done in good faith
- The harm aimed to be prevented or avoided may relate to person or property
Doctrine of necessity
Section 81 excuses the doing of an evil so that good may result. It permits the infliction of a lesser evil in order to prevent greater evil. The test is really like this. There must be a situation in which the accused is confronted with a grave danger and he have no choice but to commit lesser harm, may be even to an innocent person in order to avoid greater harm
Here, the choice is between two evils and the accused rightly chooses the lesser one without any criminal intention.
NECESSITY CAN BE OF: –
- The necessity which is of private matter
- The necessity which relates to public justice and safety
Relevant sections
- Section 81, IPC – Act likely to cause harm, but done without criminal intent, and to prevent other harm – 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.
Important case laws
Queen v Dudley and Stephens, (1884) 14 QBD 273
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.
The court said that the deliberate killing of man howsoever great the temptation might be cannot be justified by necessity. Though the law and morality are not the same and may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequences; and such divorce would follow, if the temptation to murder were to be held by law an absolute defense to it.
Gopal Naidu case
The magistrate had arrested drunken person as his conduct was a grave danger to public. It was held that he was not guilty and was protected by section 81 of IPC.
Points to remember
- The doctrine of necessity as an exception to criminal liability is given under section 81 of the Indian penal code
- Section 81 excuses the doing of an evil so that good may result
- It is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify the excuse of doing the act with the knowledge that it was likely to cause harm.
