Thursday, 17 September 2020

Whether an act would amount to an offence if general exceptions under IPC cover it?

 As rightly contended by Mr. Sharath Chandran, it is a misnomer to say that the "Chapter IV – General exceptions" of the IPC is a defence for the accused. In the opinion of this Court, every act should pass through the prism of Chapter IV of the IPC to graduate into an offence. If an act complained of falls within the net of the exceptions in Chapter IV of the IPC,

it is not an offence at all. Before going into the text of Chapter IV of the IPC, it may be apposite to quote Lord Macaulay in this regard:
“This Chapter has been framed in order to obviate
the necessity of repeating in every penal clause a
considerable number of limitations. Some limitations
relate only to a single provision, or to a very small class of
provisions…. Every such exception evidently ought to be
appended to the rule which it is intended to modify. But
there are other exceptions which are common to all the
penal clauses of the Code, or to a greater variety of clauses
dispersed over many chapters. It would obviously be
inconvenient to repeat these exceptions several times in
every page. We have, therefore, placed them in a separate
chapter and, we have provided that every definition of an
offence, every penal provision, and every illustration of a
definition or penal provision, shall be construed subject to
the provisions contained in that chapter.” T.B. Macaulay – The Works of Lord Macaulay: Critical & Historical Essays, Longman's Green, 1885
Edn. P.448
(emphasis supplied)
43. To hit the nail hard, Sections 6 and 84 IPC are extracted
hereunder:
Section 6 IPC:
"Throughout this Code every definition of an offence, every
penal provision, and every illustration of every such definition or penal provision shall be understood subject to the exceptions
contained in the Chapter entitled "General Exceptions", though those exceptions are not repeated in such definition, penal provision, or illustration.
Illustrations:
(a) The sections, in this Code, which contain definitions of
offences, do not express that a child under seven years of age cannot commit such offences, but the definitions are to be understood subject to the general exception which provides that nothing shall be an offence which is done by a child under seven years of age.
(b) A, a police-officer, without warrant, apprehends Z,
who has committed murder. Here A is not guilty of the offence of
wrongful confinement; for he was bound by law to apprehend Z and therefore the case falls within the general exception which provides that “nothing is an offence which is done by a person who is bound by law to do it”.
Section 84 IPC:
“Act of a person of unsound mind.—Nothing is an offence
which is done by a person who, at the time of doing it, by reason of
unsoundness of mind, is incapable of knowing the nature of the act,
or that he is doing what is either wrong or contrary to law.”
(emphasis supplied)
44. Therefore, it is beyond a pale of doubt that the framers of the
Code had catalogued the exceptions in Chapter IV of the IPC in such a way that every criminal act passes muster the exceptions contained therein to metamorphosize into an offence.

47. Ex consequenti, this Court is in complete agreement with the
summing up words of Mr. Sharath Chandran that what is not an offence does not require a defence. This Court is further fortified in leaning towards the contemporary school of thought by the usage of the expression "after hearing the defence of the accused, but, without questioning the accused" in Section
329(2) Cr.P.C. The legislature was aware that in an enquiry under the second
limb of Section 329(2) Cr.P.C., the trial Court is dealing with the case of a
person who has been found unfit to defend himself. Nevertheless, the legislature has recognised his legal right to be defended by an advocate who can effectively articulate the case of the accused and place materials of sterling quality before the Court to show that even at the time of commission of the criminal act, the accused was suffering from mental illness of such a kind so as to bring him within the exception under Section 84 IPC. 

IN THE HIGH COURT OF JUDICATURE AT MADRAS
Crl.O.P.No.4993 of 2018 and Crl.M.P.Nos.2485 & 2486 of 2018

Kaliyappan Muniyappan Aanurpatty Vs State 

CORAM:
 Mr. JUSTICE P.N. PRAKASH
PRONOUNCED ON: 04.09.2020
Read full judgment here:Click here
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