P, a police officer is ordered to arrest A. After due enquirey and in good faith, the police officer instead of arresting A, arrested B. B contends that it was a wrongful arrest. Whether P has committed any offence? Decide. (OR) A, an accused killed his 12 year old son S with an axe believing him to be a tiger in a moment of delusion. A did not consider his target as human being, but he thought that it was a dangerous animal. Whether A has committed any offence? Decide.
1. Whether the act of police officer amounts to offence?
2. Whether the action of police is protected under law?
Section 76 of the Indian Penal Code, 1860
General exceptions: Mistake of fact
Section 79 of the Indian Penal Code, 1860
General Exceptions: Mistake of fact
Section 76 of the Indian Penal Code, 1860 provides that a subordinate who has a duty to follow the orders of superiors or the acts of the persons which are justified by law. Thus, Section 76 justifies a wrongful act committed under good faith or innocent belief. Mistake with good intention is excusable but mistake with bad intention is not excusable.
Ignorantia facit doth excusat. It means ignorance of fact is excusable. It is excusable only when there is no mens rea.
Facts of the first instant problem is similar to the following case. Emperor Vs. Gopalia Kallaiya, (1923) 26 Bom, LR 138, a police officer from another part of India was protected under this Section when the officer in good faith and under warrant came to Bombay to arrest a person, but arrests the wrong person.
Sheo Surun Sahai Vs. Mahomed Fazil Khan, (1868) 10 WR (Cr) 20, a police officer who saw a horse tied up in B's premise that resembled a horse the officer's father had lost a few days prior, the officer arrived at the conclusion that the horse was the officer's father's horse and when the officer discovered that B had purchased the horse from S, the officer sent for S, charged S with theft, and required S to make bail without investigating; It has been held that the officer did not act with good faith so the officer was not protected.
Section 79 of the Indian Penal Code, 1860 provides that an act, which a person is justified by law in doing, and an act that the person doing it believes in good faith by reason of a mistake of fact, to be justified in doing, is not an offence.
Facts of the second instant problem is similar to the following case.
Chirangi Vs. State, (1952) Cri. LJ 1212, the accused killed his 12 year old son with an axe believing his to be a tiger in a momment of delusion. He did not consider his target as human being, but he thought that it was a dangerous animal. It has been held that the accused was not guilty and was protected under Section 79.
In the first instant problem P, the police officer has not committed any offence because it is a mistake of fact and protected under Section 76 of the Indian Penal Code, 1860.
In the second instant problem A was not guilty and was protected under Section 79 of the Indian Penal Code, 1860.
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