Secs. 75.

INDIAN PENAL CODE.

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An offender after having been punished with imprisonment for a crime under Chapter XVII, again after his release from prison commits a similar description of crime, or a crime punishable under the same chapter, is liable under this section to enhanced punishment; but when no imprisonment under it has yet been undergone, and no time has been given for reformation, it cannot be said that a prisoner has had any opportunity of showing what the effect of the first sentence would have been upon him. p. 60, vol. I, R. C. C. R. Queen vs. Pubon.

A man convicted of an offence punishable under Chapters XII and XVII of this Code prior to 1st January, 1862, would not, on a second conviction, subsequent to that date, be liable to any enhanced punishment under this Section 75, the provisions of this section not being applicable to convictions made prior to the Penal Code coming into operation. Vol. II, p. 109, R. J. P. J. Letter No. 885, para. 8, High Court, Calcutta.

N.B.-It is not necessary that a person should actually have undergone imprisonment for three years; as long as the offence of which he has been convicted is punishable with imprisonment for a term of three years, he comes under the provisions of this Section 75.

A Sessions Judge cannnot (under this section or otherwise) by amalgamating a sentence which he is competent to pass upon a prisoner with a sentence under which such prisoner is already undergoing imprisonment, and commuting the latter sentence, condemn such prisoner to a longer period of transportation than he is liable to suffer for the crime of which he has been convicted. Reg. vs. Sakgà, Bo. H. Ct. R., Crown cases, p. 36, of 1868.

CHAPTER IV.

GENERAL EXCEPTIONS.

By Section 2, Act XXVII of 1870, the word "offence" in this Chapter IV, Penal Code, denotes a thing punishable under this Code or under any special or local law as defined in Sections 41, 42, ante.

This chapter has been passed to obviate the necessity of repeating in every penal clause a considerable number of limitations. With the exception of one or two limitations, which limitations are, as a rule, appended to the sections which they are intended to modify, there are other exceptions in favor of infants, lunatics, idiots, persons under the influence of delirium; exceptions in favor of acts done by the direction of the law; of acts done in the exercise of the right of self-defence; of

It would

acts done by the consent of the party harmed by them. obviously be inconvenient to repeat these exceptions several times in every page, they have, therefore, been placed in a separate chapter, and it has been 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 this chapter. B., Indian Law Commissioners, pp. 79 to 80.

76.

Note

Nothing is an offence (40) which is done by a person who is, or who by reason of a mistake of fact, and not by reason of a mistake of law, in good faith (52) belives himself to be bound by law to do it.

Act done by a person bound, or by mistake of fact believing himself bound, by

law.

Where a person whom a chowkeydar attempted to arrest as a thief, made a desperate resistance, it was held that the chowkeydar was justified in using such violence as was necessary to arrest him.

Even if the chowkeydar was wrong in supposing him to be a thief, the mistake was one of fact, and not a mistake of law, and the chowkeydar would be entitled to the benefit of this Section 76 and Section 79 of this Code. In re Protaub, Chowkeydar, 16th January, 1865, vol. IV, p. 165, R. J. P. J.

A prisoner who was a servant of the Port Canning Company, finding some fishermen poaching on his master's fisheries, and acting bona fide in the interest of his employers, took possession of the nets, and refused to give them up to the Police. He retained possession of them, pending the orders of his employers. The taking of the nets not being criminalhe was held not guilty of the theft charged. Queen vs. Nobin Chunder Haldar, VI, W. R., 79.

Illustrations.

(a). A, a soldier, fires on a mob by the order of his superior Officer, in conformity wth the commands of the law. A has committed no

offence.

(b). A, an Officer of a Court of Justice, being ordered by that Court to arrest Y, and, after due enquiry, believing Z to be Y, arrests Z. A has committed no offence.

77. Nothing is an offence (40) which is done by a Act of Judge when Judge (19) when acting judicially in the exercise of any power which is, or which in good faith (52) he believes to be, given

acting judicially.

to him by law.

Secs. 77-78..

INDIAN PENAL CODE.

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Act XVIII of 1850 enacts that no civil action lies against a Judge acting judicially for any thing done, or ordered to be done by him in good faith.

De fide et officio Judicis non recipitus quæstio sed de scientia sive sit error juris sive facti. The bona fides and honesty of purpose of a Judge cannot be questioned, but his decision may be impugned for error either of law or fact. This maxim attaching to persons filling judicial offices and discharging functions appertaining thereto, is one that has been uniformly maintained. "The doctrine," says Mr. Chancellor Kent, "which holds a Judge exempt from a civil suit or indictment for any act done or omitted to be done by him sitting as Judge, has a deep root in the common law. It is to be found in the earliest judicial records, and it has been steadily maintained by an undisturbed current of decisions amidst every change of policy, and through every resolution of the Government of the English Courts. A short view of the cases will teach us to admire the wisdom of our forefathers, and to revere a principle on which rests the independence of the administration of justice." This freedom of action and question at the suit of an individual is given by our law to the Judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that, being free from actions they may be free in thought and independent in judgment as all who administer justice ought to be. B. L. M., p. 88, Edn. IV.

Under the Roman Law, the Judge who, with Dolus or Culpa lata, so misconducts a suit, as to be chargeable with misconduct; or who decides wrongly and has thereby caused injury; may be sued for compensation by an Actio in factum. T. & J. M. R. L. 387.

order of a Court of

Justice.

78. Nothing which is done in pursuance of, or which is Act done pursuant warranted by, the judgment or order of a to the judgment or Court of Justice, (20), if done whilst such judgment or order remains in force, is an offence, notwithstanding the Court may have had no jurisdiction to pass such judgment or order, provided the person doing the act (33) in good faith (52) belives that the Court had such jurisdiction.

Peons acting beyond jurisdiction are not protected by this section. The protection is eundo, morando, et redeundo, p. 43, vol. V, R. J. P. J. Takoordoss Nundy vs. Shunker Roy, &c. So also in a case where a bailiff, in executing process against the moveable property of a judgmentdebtor, broke open the gate.-3 R. C. C. Cr. 8. Queen vs. J. McQueen.

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The arrest under civil process of a judgment-debtor going to a Court in obedience to a citation to give evidence, and made within the precincts of that Court, and with some show of violence and contempt of Court, does not entitle the officers making the arrest to protection under this section. 3 W. R., p. 53. Thakordoss Nundy vs. Shunkur Roy.

79. Nothing is an offence (40) which is done by any Act done by a per- person (11) who is justified by law, or son justified, or by who, by reason of a mistake of fact, and lieving himself justi- not by reason of a mistake of law, in good fied, by law. faith (52) believes himself to be justified.

mistake of fact be

by law in doing it.

Illustration.

A sees Z commit what appears to A to be a murder. A, in the exercise, to the best of his judgment, exerted in good faith, of the power which the law gives to all persons of apprehending murderers, in the fact, seizes Z, in order to bring Z before the proper authorities. A has committed no offence, though it may turn out that Z was acting in selfdefence.

80.

Accident

in the

Nothing is an offence (40) which is done by accident or misfortune, and without any crimdoing of a lawful act. inal intention or knowledge in the doing of a lawful act in a lawful manner, by

lawful means, with proper care and caution.

Under English law, a person causing death by an act heedlessly and incautiously done, is guilty of man-slaughter (Roscoe, 644).

If a man do any act, however unfortunate in its consequences, through accident, error or ignorance without any criminal intention or knowledge, he is not guilty of an offence: the ignorance herein implied is an ignorance or mistake of fact, not an ignorance or mistake of law. See Section 76 ante. Ingnorance of the law excuses no man, for every one is presumed to know it, as is shown by the maxim "Ignorantia facti excusat, -Ignorantia juris non-excusat" having become a fundamental legal principle, but with reference to this principle, it is necessary to bear in mind, that, though ignorance of the law does not excuse persons, so as to exempt them from the consequences of their acts, as for example, from punishment for a criminal offence or damages for a breach of contract, the law nevertheless takes notice that there may be a doubtful point of law, and that a person may be ignorant of the law, and it is quite evident

that ignorance of the law does in reality exist. It would, for instance, be contrary to common sense to assert that every person is acquainted with the practice of the Courts, although in such a case there is a presumption of knowledge to this extent, that "ignorantia juris non-excusat,” the rules of practice must be observed, and any deviation from them will entail consequences detrimental to the suitor (Martindale vs. Faulkener). It is, therefore, in the above qualified sense alone that the saying, that "all men are presumed cognizant of the law" must be understood. B. L. M., 250.

The Lex Aquilia had amongst its provisions the following: "Ac ne is quidem hac lege tenetur, qui casu occidit, si modo culpa ejus nulla inveniatur; nam alioquin non minus quam ex dolo ex culpa quisque hac lege tenetur." Nor is a person made liable by this law, who has killed by accident, provided there is no fault on his part, for this law punishes fault as well as wilful wrong doing. Lib. IV, Tit. III, San: N. I. J. 513.

Illustration.

A is at work with a hatchet: the head flies off and kills a man who is standing by. Here, if there was no want of proper caution on the part of A, his act is excusable, and not an offence.

Act likely to cause harm, but done with

out a criminal intent

81. Nothing is an offence (40) 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 (52), for the purpose of preventing or avoiding other harm to person or property.

and to prevent other

harm.

Vide note under Section 328 post.

Explanation. 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 or excuse the risk of doing the act with the knowledge that it was likely to cause harm.

Illustrations.

(a). A, the captain of a steam vessel, suddenly and without any fault or negligence on his part, finds himself in such a position that, before he can stop his vessel, he must inevitably run down a boat, B, with twenty or thirty passengers on board, unless he changes the course of his vessel; and that by changing his course he must incur the risk of running down a boat, C, with only two passengers on board, which he may possibly clear,

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