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Mistake as general exception: Differentiating the scope of Section 76 & Section 79 of IPC

Updated: Mar 14, 2021

ABSTRACT: This blog covers the distinction between two closely related aspects mentioned in Indian Penal Code 1860, i.e. Section 76 and Section 79. However there exists a similar element in both the sections and that is the presence of bona fide intention. Finally the blog concludes by proposing few suggestions and concluding notes on the study.

KEYWORDS: Section 76 (IPC); Section 79 (IPC); excusable exceptions; justifiable exceptions; ignorantia juris neminem excusa.


“To every rule there is an exception and an idiot ready to demonstrate it. Don’t be the one.”[1] The Penal Law is a law on which men place their ultimate reliance for protection against all the deepest injuries that human conduct can ever inflict on individuals or institutions. By the same token, penal law governs the strongest force that we permit official agencies to bring to bear to individuals. Its promise as an instrument of safety is matched only by its power to destroy.[2] The general rule is that a person is presumed to know the nature and consequences of the act he does and is therefore responsible for it in law. However, there are various kinds of acts done under the circumstances mentioned in Section 76 to Section 106, IPC which will not amount to offence under the code. In other words these acts (exceptions) are exempted from the category of offences under IPC. It may be noted that there are two classes of exceptions: (i) excusable exceptions[3] & (ii) justifiable exceptions[4]


This section excuses a person who has done what by law is an offence, under a misconception of facts, leading him to believe in good faith that he was commanded by law to do it. Mistake is a mere forgetfulness. It is a slip ‘made not by design, but by mischance.’ Under Section 76 and 79 a mistake must be one of fact and not of law. Honest and reasonable mistakes stand in fact on the same footing as absence of the reasoning faculty, as in infancy, or perversion of that faculty, as in lunacy. “When a person is ignorant of the existence of relevant facts, or mistakes as to them, his conduct may produce harmful results which he neither intended nor foresaw. Mistake can be admitted as a defence provided (1) that the state of things believed to exist would, if true, have justified the act done and (2) the mistake must be reasonable and (3) that the mistake relates to fact and not to law.”[5] Ignorantia facti doth excuse[6], for such ignorance many times makes the act itself morally involuntarily. Ignorance includes mistake, but mistake does not necessarily include ignorance. Ignorance means lack of knowledge, a general inertia of human mind. While mistake is not a result of foolhardiness nor it is caused by any lack of mental alertness. Thus, mere forgetfulness is not a mistake. Mistake of fact implies mistake as to true identities or mistake in sensory perceptions such as temporary distortion of imagination. “It is an erroneous mental condition or conviction induced by ignorance, misapprehension or misunderstanding of the truth and resulting in some act/ omission done or suffered erroneously by one or both of the parties to a transaction but without its erroneous character being intended or known at the times.”[7] Whenever, the question of justification of an offence either due to mistake of fact or mistake of law arises, the guidelines laid down in the case R v. Prince[8] are to be followed. In Sew Mangal’s Case[9] and in Section 76 and 79 IPC that if the subordinate due to mistake of fact and not due to mistake of law honestly believed that he was bound or justified by law in carrying out the superior order which though not manifestly illegal was nevertheless illegal, perhaps he would still get benefit of superior order. Obedience to an illegal order can only be used in mitigation of punishment but cannot be used as a complete defence. When mistake of fact is no defence?- Mistake of fact is no defence when the fact itself is illegal. One cannot do an illegal act (eg. Selling adulterated foodstuffs) and then plead ignorance of fact. Taking an unmarried girl under the age of 16 years out of the possession and against the will of her father was held not to be a good defence to an indictment for abduction because the accused intended to do and did a wrongful or immoral act.[10] The maxim respondeat superior[11] has no application in criminal law.[12] One cannot plead ignorance of fact when ‘responsible inquiry’ would have elicited the true facts.

The distinction between Section 76 and 79 is that in the former, a person is assumed to be bound and in the latter to be justified by law. In other words, the distinction is between a real or supposed legal obligation/ compulsion and a real or supposed legal justification in doing the particular act. However under both the sections there is a bona fide intention to advance the law.[13]


Strict measures should be laid down while examining the good faith in the act of any individual because there may come situations wherein an individual can fly by taking the justification of having good faith in his acts. The maxim respondeat superior should be changed because when an individual is bound by his superior’s orders then he has a legal obligation to follow the same but if those orders abet his acts to commit an offence then he should be given the leverage to be forgiven for the same. Now I would like to sum up all we discussed. This paper started with introducing the provisions of Section 76 & 79 of IPC to the readers and further elaborating the provisions. Then a brief introduction of the topic was given so as to enlighten the readers with the background of the said provisions. Further it also discusses some research questions and then finally enlarges its information by adding literature review in it. The paper also gives some suggestions to the mentioned topic.



1. The Perpetual Calendar of Inspiration, Nazarian Vera.

2. Professor Wechsler, Reforms of the Federal Criminal Laws, February 10, 1971.

3 .Where there is a lack of mens rea on the part of the person committing the offence either by reason of mistake

of fact, or by reason of the act being done accidently, or by reason of infancy, insanity, etc.

4 .Where the circumstances under which the act is committed provide legal justification like the act is done in the

exercise of the right of private defence.

5 .Russell William (1819), Russell on Crime, Twelfth Edition. 1964, 2 volumes, Sweet & Maxwell Ltd, 1964

6. Ignorance of fact is an excuse.

7 .Ratanlal and Dhirajlal, Law of Crime, 23 rd end, p. 199.

8 .L.R. 2 C.C.R. 154 (1875),

9. 1981 AIR 1917, 1982 SCR (1) 360

10. R v. Prince, L.R. 2 C.C.R. 154 (1875).

11. Act done by the order of superior.

12. Gurdit Singh And Ors. Etc vs Munsha Singh And Ors. Etc, 1977 AIR 640, 1977 SCR (2) 250

13 .Jain Ashok,(2019-20), Criminal Law-I, 6 th Edn. , Ascent publications, New Delhi.


Author -Manaswita Nakwaal

Student of Symbiosis Law School, NOIDA.

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