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 

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Madras HC: Precaution to be taken by the magistrate before committal of accused of unsound mind to session court

While so, the police completed the investigation and filed a final

report in P.R.C.No.15 of 2017 against Kaliyappan for the offence under

Section 302 IPC before the District Munsif-cum-Judicial Magistrate, Omalur.

Surprisingly, the Magistrate commenced the proceedings under Sections 207

and 209 Cr.P.C. and committed the case to the Court of Session, by order

dated 03.03.2008 in P.R.C. No.15 of 2007. Even during the committal

proceedings, the Magistrate did not take any steps to satisfy himself as to

whether Kaliyappan was in a sound state of mind to understand the proceedings.

20. A close reading of Section 328 Cr.P.C. shows that it deals with

(a) persons of unsound mind and (b) persons suffering from mental retardation at the stage of an inquiry. The expression “inquiry” is defined in Section 2(g) to mean every inquiry, other than a trial, under the Code. These may include proceedings relating to remand, bail, taking of cognizance, issuance of process, furnishing of copies, committal proceedings and framing

of charges. In this case, though there were sufficient materials to indicate that Kaliyappan was suffering from mental illness even at the stage of committal, no steps were taken by the committal Court under Section 328 Cr.P.C.

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

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Notes on Burden of proof (S 101-111 of Evidence Act)

The word "burden of proof" has not been defined in Indian Evidence Act. Burden of proof  in simple words means responsibility to prove a fact in a case or obligation to prove a fact.

Principles of burden of proof are mentioned below:

a) Onus probandi means burden of proof. Generally a party who alleges affirmative has to prove it.

b) Factum probans is proving the fact.

The phrase"burden of proof" has two distinct meanings:

1) The burden of proof as a matter of law and pleading-The burden as it has been called of establishing a case. This burden rests upon the party whether plaintiff or defendant who substantially asserts the affirmative of the issue.It is fixed at the beginning of trial by statements of pleading, and it is settled as a question of law,remaining unchanged under any circumstances whatever.This rule is embodied in S 101.

2)The burden of proof as matter of adducing evidence - The burden of proof in this sense is always unstable,and may shift constantly throughout the trial.This aspect of burden of proof is contained in S 102.It lies at first on the party who would be unsuccessful if no evidence at all was given on either side.This being the  test,burden of proof cannot remain constant,but must shift as soon as he produces evidence which prima facie gives rise to a presumption in his favour.

Difference between burden of proof and onus of proof: Burden of proof lies on the person who has to prove a fact and  it never shifts,but onus of proof shifts.Such a shifting of onus is a continuous process in the evaluation of evidence.

Read important Judgments on Burden of proof : Click here

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Whether police can file final report saying that no offence is made out against accused considering his right of private defence?

From this provision, it is crystal clear that the an offence either culpable homicide or murder as defined under Sections 299 and 300 of I.P.C. are also subject to the exceptions contained in Chapter IV titled "General Exceptions". Section 96 of I.P.C. declares that nothing is an offence which is done in the exercise of the right of private defence. Section 100 states as to when the right of private defence of body extends to causing of death. Thus, during the course of investigation, if the police officer finds that the act of the accused falls squarely within the ambit of Section 100 of I.P.C. then, he cannot file a positive final report to the effect that an offence either under Sections 302 or 304 I.P.C. has been committed. For arriving at such a conclusion that the act of the assailants falls squarely within the ambit of Section 100 of the Code, during the course of investigation, the police officer is not concerned with Section 105 of the Evidence Act. Section 105 of the Evidence Act deals with proof of exception during trial. It states that it is for the accused to prove that his act would fall under any one of the general exceptions or special exceptions. Since, during investigation, the accused is not called upon to prove any disputed fact, the question of applying Section 105 of the Evidence Act does not arise at all. The argument of the learned counsel for the petitioner in this regard therefore deserves only to be rejected.

IN THE HIGH COURT OF MADRAS

W.P. No. 25743 of 2010

Decided On: 09.02.2016

 P. Pugalenthi Vs. State of Tamil Nadu and Ors.

Coram:

M. Jaichandren and S. Nagamuthu, JJ.

Citation: 2017 CRLJ(NOC)82 Madras

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