General Exceptions Under BNS | Bhartiya Nyay Sanhita, 2023

INTRODUCTION

THE BHARATIYA NYAYA SANHITA, 2023 serves as the comprehensive criminal code for India, outlining various offenses and their corresponding punishments. Within this legal framework, general exceptions under BNS play a crucial role in ensuring justice and fairness. These exceptions are encapsulated in Chapter III of the BNS, covering Sections 14 to 44.

General exceptions provide circumstances under which an act, otherwise deemed criminal, may be considered lawful or excusable.

These provisions acknowledge that certain situations warrant exemption from liability due to factors like lack of intent, compulsion, or mental incapacity. By recognizing these scenarios, the BNS aims to differentiate between acts committed with malicious intent and those occurring under extenuating circumstances. The Legal Lock emphasizes that such general exceptions under BNS are essential to ensure justice is delivered with fairness and context.

 

GENERAL EXCEPTIONS

Excusable Act:

• This is the first category of general exceptions where the law excuses certain acts events though it constitutes an offence.
• Here the act is excused for want of requirement of mens rea.
• It treats the actus reus as non-criminal because of the absence of mens rea.
• Eg: Act of infant or insane person.

 

Justifiable Act:

• This is the second category of General Exceptions where the acts committed, though are offences, are held to be justifiable under certain circumstances.
• Act done is justified on account of some other meritorious considerations neutralising the corresponding liability.
• Eg: Act done out of necessity, act done in private defence.

 

    BOUND BY LAW

Sec 14 of BNS gives immunity from criminal liability to a person who is bound by law.

     Nothing is considered an offense if a person, due to a mistake of fact (and not a mistake of law), sincerely believes that they are legally obligated to do it.

 

 Provision Explanation:

The statement provides that a person is not guilty of an offense if they genuinely believe they are legally required to act.

This belief must be based on a mistake about the facts, not the law. If someone acts because they mistakenly think the facts require it by law, their actions aren't criminal. This applies as long as their belief is sincere and based on a factual error, not a misinterpretation of the law. The critical point is that the belief must be in good faith and rooted in a factual mistake, not a legal misunderstanding.

Eg: A, a soldier, fires on a mob by the order of his superior officer, in conformity with the commands of the law. A has committed no offence.

    Ingredients of sec 14:

1. The person was bound by law or has the belief that he was bound by law to do the act.
2. Such belief must be by reason of mistake of fact and not by reason of mistake of law.
3. Such belief must be in good faith

“State of West Bengal vs Shew Mangal Singh” (AIR 1981 SC 1917)

In this case, while on patrol, police officers were suddenly attacked. The Deputy Commissioner of Police then ordered them to open fire, resulting in the victim being injured and dying.

The court ruled that the superior officer's order was justified.

The accused were acquitted and given the benefit of the doubt.

Sec 17 of BNS gives immunity from criminal liability to a person who is justified by law.

It states that an action is not an offense if it is done by someone who is legally justified, or who, due to a mistake of fact (not of law) and in good faith, believes they are legally justified in doing it.

Provision Explanation

This provision states that a person is not guilty of an offense if they act with legal justification.

Alternatively, if they act due to a factual mistake (not a legal one), and genuinely believe in good faith their actions are justified by law.In other words, if someone sincerely thinks they are following the law due to an error in understanding the facts, their actions are not criminal.The key point is that the belief must be in good faith and based on a factual error, not a misunderstanding of the law.

Eg: A sees Z committing murder. A acting in good faith 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 self-defense

 

Ingredients of sec 17:

1. The person was justified by law or has the belief that he was justified by law in doing it.
2. Such belief must be by reason of mistake of fact and not by reason of mistake of law.
3. Such belief must be in good faith.

 “R. vs. Tolson” (1889 23 QBD 168)

The appellant married in September 1880, and in December 1881, her husband went missing. She was informed that he had been on a ship that was lost at sea. Six years later, believing her husband to be dead, she married another man. However, 11 months after the second marriage, her husband reappeared, and she was charged with bigamy.

Held: The court ruled that she could use the defense of mistake, as it was reasonable under the circumstances to believe that her husband was dead.

JUDICIAL ACTS

Sec 15 and sec 16 of BNS gives immunity from criminal liability to Judges and its staff.

The object of protection to Judges is to ensure the independence of the Judges and to enable them to discharge their duties without any fear of the consequences.

The function of Judges creates a feeling of revenge in the mind of convicted person. So the Judges are given immunity from criminal liability.

Sec 15 provides that: JUDICIAL ACTS

Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law.

• Ingredients of sec 15:

1. The act must be done by a Judge.
2. The Judge must be acting in exercise of power which is given to him by law; or
3. The Judge must be acting in exercise of power which in good faith he believes to be given by law.

Eg: Death sentence given by a Judge is protected under this section.

The Judges (Protection) Act, 1985

Section 3(1) of the act provides that no court shall initiate or proceed with any civil or criminal case against a Judge for any actions, decisions, or statements made by them in the course of, or while appearing to carry out, their official or judicial responsibilities.

Acting Judicially:

An important element of sec 77 of IPC is that it should not only be an act of Judge, but it should be done by him in the course of discharging his judicial powers.

“Ram Pratap Sharma vs. Dayanand” (AIR 1977 SC 809).

In this case, a Judge of the Punjab and Haryana High Court criticized government policy and openly attacked the government while addressing members of the bar. The bar members wrote to the President about the Judge's conduct. As a result, the High Court issued a notice of criminal contempt against the bar members, who then issued an apology. When the matter reached the Supreme Court, it was held that addressing political issues is not part of a Judge's duties. Therefore, the Judge does not receive immunity under Section 77 of the IPC.

Sec 16 protects the members who executes the orders of the court.

If such immunity is not given than it would be impossible to execute or implement the orders of the court.

The protection extends even if the court does not have jurisdiction to issue such order, provided that the person executing the order believes in good faith that the court has jurisdiction to issue such order.

SEC 18: ACCIDENT IN DOING A LAWFUL ACT.

It exempts a person from liability if the act is done accidentally, without any criminal intention or knowledge.

It states that an act is not considered an offense if it occurs by accident or misfortune, without any criminal intent or knowledge, while performing a lawful act in a lawful manner and with appropriate care and caution.

Provision Explanation

This provision states that an act is not deemed a criminal offense if it occurs accidentally or by misfortune, provided the person was acting lawfully, without criminal intent or knowledge, and with appropriate care and caution. In essence, if someone is performing a legal act in a lawful manner and unintentionally causes harm, without intending to or being aware of the potential for harm, they are not considered guilty of an offense. The crucial factors are the absence of criminal intent or knowledge and the exercise of due care and caution.

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.

“Sita Ram vs. State of Rajasthan” [(1998) CrLJ 287 (Raj)]

In this case, the accused was using a spade to dig the earth when the deceased, who had come to collect the mud, was struck on the head by the spade and died. The accused claimed it was an accident. The High Court found that the accused knew other workers would be coming to collect the mud and had not taken adequate care and caution. As a result, the accused was convicted under Section 18 of BNS

Section 19 Act likely to cause harm, but done without criminal intent, and to prevent other harm

This section of BNS recognizes the doctrine of necessity as a defense against criminal liability.

It is based on two maxims:

1. “Quod necessitas non habet leg
2. em” which means necessity knows no law.
3. “Necessitas vincit legem” which means necessity overcomes the law.
4. Necessity in legal context involves a judgment that evil in obeying a law is greater than evil of breaking it. In other words, the law has to be broken to achieve a greater good.

Sec 19 : NECESSITY

Nothing that is done in good faith to prevent or avert further injury to people or property, even if it is done with knowledge that it is likely to cause harm, is considered illegal.

 

Provision Explanation

According to this clause, if someone acts with good intentions to prevent or avert greater injury to a person or piece of property, they are not regarded to have committed a crime just because they knew their actions may cause harm.  A person's behaviour is not seen as unlawful if they know it might hurt others but do it sincerely in an effort to avert a bigger threat. The two most important components are the lack of criminal intent and the sincere attempt to stop or avoid more damage.

 

Eg: A puts out a large fire by tearing down homes to stop the flames from spreading. He acts in this way with the sincere goal of protecting people or property. In this case, if it is determined that the harm that needed to be avoided was so serious and immediate that it justified A's actions, then A is not guilty of the crime.

“United States vs. Holmes” [(1842) 26 Fed Case 360] 

In this case, an American ship was sinking after colliding with an iceberg. The crew and some passengers escaped in a lifeboat, which was overcrowded. To prevent it from sinking, the accused, along with the crew, threw 14 passengers into the sea. The accused was charged with murder and used the defense of necessity. The court, however, rejected this defense and convicted the accused.

ACT DONE BY CHILD

Sec 20 and 21 of BNS deals with offences committed by child.

The Constitutional basis for different provisions for children is Art 15 (3), Art 39 (e) and (f) of Indian Constitution.

Art 15 (3) empowers the state to make special provisions for women and children.

Art 39 (e) and (f) are the Directive Principles of State Policy which provides that children should be given opportunities and facilities to develop in a healthy manner.

Sec 20 of BNS states that a child under seven years of age is not liable for offence.

Law presumes that a child below seven years is ‘doli incapax’, i.e. he lacks the adequate mental ability to understand the nature and consequences of the act and thereby an ability to form the required mens rea.

Sec 20 gives total immunity from criminal liability to a child who is below seven years of age.

Section 20 states that a child under seven years of age cannot be considered guilty of any offense for their actions.

“Shyam Bahadur Koeri vs State of Bihar” (AIR 1967 Pat 312)

In this case, a child under seven years old found a gold plate weighing 28 tolas but did not report it to the Collector. When the Collector learned of this, he ordered the child to be prosecuted under the Indian Treasure Trove Act, 1878. The Court ruled that since the child was below seven years old, he was entitled to the protection under Section 20 OF BNS, and thus, the Court acquitted the child. Sec 20 of BNS deals with an act of child who is above 7 years and under 12 years of age.

Sec 21 states that: An act is not considered an offense if it is committed by a child over seven but under twelve years of age, who lacks the maturity to understand the nature and consequences of their actions at that time.

Maturity of Understanding:

Section 21 states that for a person between 7 and 12 years old, the court must determine if the child has the maturity to understand the nature and consequences of their actions.

The term "consequences of his conduct" refers to the natural outcomes of the act, not legal penalties.

The court can assess the child's level of maturity by considering all the facts and circumstances of the case, including the nature of the act, as well as the child's behavior and demeanor in court.

Sec 22 : Act of a person of unsound mind

An act is not considered an offense if it is done by a person who, due to unsoundness of mind at the time, is unable to understand the nature of the act or that it is wrong or against the law.

“Jai Lal vs. Delhi Administration” (AIR 1969 SC 15)

In this case, the accused stabbed a one-and-a-half-year-old child, hid the knife, and tried to escape through the back door. He claimed insanity as a defense, stating he was a schizophrenic. The court rejected this defense, noting that his actions, including his attempt to evade arrest, showed a consciousness of guilt. Consequently, the court convicted the accused.

INTOXICATION

Alcohol is strongly associated with the crimes of violence. The effect of alcohol is that it is a depressant which reduces the stimulation of brain and whereby a person loses control of his acts.

It weakens the inhibitions and impairs the ability to foresee consequences.

Sec 23 and sec 24 of BNS deals with offence committed by intoxicated person.

Sec 23: Act of a person incapable of judgment by reason of intoxication caused against his will.

This provision states that an act is not considered an offense if, due to intoxication, a person is unable to understand the nature of their actions or recognize that their actions are wrong or against the law. However, this only applies if the intoxication was caused by something administered to the person without their knowledge or against their will. In other words, if a person becomes intoxicated unintentionally or without their consent, they may not be held criminally responsible for their actions if they were unable to comprehend what they were doing.

Provision Explanation

This provision means that if a person commits an act while intoxicated and cannot understand the nature of their actions or recognize that they are wrong or illegal, they are not deemed guilty of an offense. However, this only applies if the intoxication was involuntary, meaning the person was intoxicated because someone else administered the substance without their knowledge or against their will.

Ingredients of Sec 23:

1. The act must be done by a person who is incapable of knowing the nature of the act.
2. Such incapacity must be by reason of intoxication.
3. The incapacity must exist at the time of doing the act.
4. The thing which intoxicated him must have been administered to him without his knowledge or against his will.
5. Involuntary Intoxication:

Sec 23 protects the person from criminal liability when the thing which intoxicated him was administered to him ‘without his knowledge’ or ‘against his will’.

The expression ‘without his knowledge’ means that the person is ignorant of the fact that what is consumed by him is an intoxicant or is mixed with an intoxicant.

The words ‘against his will’ means that the person was forced or coerced into consuming an intoxicant

Incapable of Knowing the Nature of the act:

For the defence of intoxication it is not only important to prove that it was involuntary intoxication, but also that due to intoxication the person lost his ability to understand the nature of the act committed by him.

“Jethuram vs State of MP” (AIR 1960 MP 242)

In this case, the accused, who was intoxicated against his will, caused the victim's death. The accused inflicted six injuries with an axe and two with a stick. Four of the axe wounds were to the head, and the stick injuries were also to the head. Since all the injuries were to vital areas, the court concluded that the accused was aware of the nature of his actions and could not claim any benefit under the relevant provisions.

 

Sec 24 : Offence requiring a particular intent or knowledge committed by one who is intoxicated.

In cases where an act is only considered an offense if done with specific knowledge or intent, a person who performs the act while intoxicated will be treated as if they had the same knowledge or intent they would have had if they were not intoxicated. This applies unless the intoxication was caused by something given to them without their knowledge or against their will.

Provision Explanation

This provision means that if a person commits an act that is considered a crime only if done with a specific knowledge or intent, and they do it while intoxicated, the law treats them as if they had the same knowledge or intent they would have had if they were sober.

However, this rule applies only if the person voluntarily became intoxicated. If someone else caused their intoxication without their knowledge or against their will, then this presumption does not apply. In other words, voluntary intoxication does not excuse someone from the consequences of their actions, and the law assumes they had the same awareness as they would have had if they were not intoxicated.

CONSENT

Consent is defined u/s 28 of BNS in a negative manner.

• It provides that a consent is not a consent if ;

1. It is given by a person under fear of injury.
2. It is given by a person who is under misconception of facts and the person who obtains the consent knows or has reason to believe this.
3. It is given by a person of unsound mind.
4. It is given by an intoxicated person.
5. It is given by a child below 12 years of age

Section 25: Act not intended and not known to be likely to cause death or grievous hurt, done by consent.

An act is not considered an offense if it is not intended to cause death or serious injury and the person performing the act does not know that it is likely to cause such harm. This applies when the harm caused, or intended to be caused, is to an adult who has given consent (whether explicit or implied) to endure that harm, or if the doer knows the act might cause such harm but the adult has agreed to accept the risk.

Provision Explanation

This provision explains that an act is not considered a crime if it was not intended to cause death or serious injury, and the person committing the act did not know it was likely to cause such harm. Furthermore, if the person harmed is over 18 years old and has given their consent, either explicitly or implicitly, to suffer the harm, the act is not treated as an offense.

Additionally, if the person harmed has knowingly accepted the risk of harm, it is not considered a crime, even if the harm occurs. Essentially, the law does not view an act as criminal if the harm caused was not intended to be severe or fatal, and the affected person consented to or assumed the risk of that harm.

Illustration:  A and Z agree to fence with each other for amusement. This agreement implies the consent of each to suffer any harm which, in the course of such fencing, may be caused without foul play; and if A, while playing fairly, hurts Z, A commits no offence.

“Tunda V Rex”:  In this case, two friends who were both enthusiastic about wrestling took part in a match. One of them unfortunately sustained injuries that led to his death. The High Court ruled that since both friends had mutually agreed to wrestle, there was an implied consent to accept the risk of accidental injuries. In the absence of any foul play, the court determined that the situation falls under Section 25 of BNS.

Section 26 : Act not intended to cause death, done by consent in good faith for person's benefit.

An action that is not intended to cause death is not considered an offense because of any harm it may cause, or is intended to cause, or is known by the person doing it to be likely to cause, to someone who benefits from the action, as long as it is done in good faith and the person has given their consent—whether explicitly or implicitly—to endure that harm or to take the risk of it.

Provision Explanation

This provision states that if an act is not intended to cause death, it is not considered an offense, even if it causes harm, as long as certain conditions are met. These conditions include that the act is done in good faith for the benefit of the person who may be harmed, and that the person has given their consent—whether express or implied—to suffer the harm or take the risk associated with it. In essence, if someone consents to an act done with good intentions for their benefit, and the harm is not meant to be fatal, it is not considered an offense.

Illustration: 

A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under the painful complaint, but not intending to cause Z’s death, and intending, in good faith, Z’s benefit, performs that operation on Z, with Z’s consent. A has committed no offence.

Section:28 Consent known to be given under fear or misconception.

A consent is not such a consent as is intended by any section of this Sanhita,

(a) if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or

(b) if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or

(c) unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.

Section 30: Act done in good faith for benefit of a person without consent

An action is not considered an offense because of any harm it may cause to a person if it is done in good faith for that person’s benefit, even without their consent, when the circumstances make it impossible for the person to give consent, or if the person is unable to give consent and has no guardian or lawful representative from whom consent can be obtained in time to provide the benefit.

Provided that this exception shall not extend to––

(a) the intentional causing of death, or the attempting to cause death;

(b) the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity

(c) the voluntary causing of hurt, or to the attempting to cause hurt, for any purpose other than the preventing of death or hurt

(d) the abetment of any offence, to the committing of which offence it would not extend

Provision Explanation

This provision indicates that an act causing harm is not deemed an offense if it is done in good faith for the benefit of the person harmed, even if that person has not consented to the act. This applies in situations where the person cannot provide consent—either because they are unable to do so or because they have no guardian or legal representative available to give consent on their behalf. The key conditions are that the act must be done with good intentions for the person's benefit, and the inability to obtain consent must be due to circumstances beyond control. Thus, in such scenarios, the act is not considered an offense despite the lack of consent.

ILLUSTRATION : Z is carried off by a tiger. A fires at the tiger knowing it to be likely that the shot may kill Z, but not intending to kill Z, and in good faith intending Z’s benefit. A’s bullet gives Z a mortal wound. A has committed no offence.

SECTION 33: TRIVIAL ACTS

An action is not considered an offense simply because it causes harm, is intended to cause harm, or is known to likely cause harm, if the harm is so minor that no reasonable person would find it worth complaining about.

Provision Explanation

This provision means that an act isn't considered an offense if the harm it causes is minimal—so minor that a reasonable person wouldn’t complain about it. In other words, for something to be legally considered an offense, the harm caused must be significant enough that a typical person would find it unreasonable or bothersome.

“Mrs. Veeda Menezes vs Yusuf Khan And Anr” (AIR 1966 SC1773)

The Supreme Court accepted the defence of the respondent and stated that sec 33 of BNS is applicable if the act causes harm but the harm is so slight that no person of ordinary sense or temper would complain of such harm.

The court also stated that the word harm as may include physical injury but the injury is such that no person of ordinary prudence would complain of such injury.

 

SEC 34  : RIGHT OF PRIVATE DEFENCE

Nothing is an offence which is done in the exercise of the right of private defence.

• This general rule is available against an act which is an offence under this Code.
• This section states that any act done in the exercise of right of private defence is not an offence.

The words in the above section denotes that the right of private defence is a defensive right and not of retribution

“Biran Singh vs. State of Bihar” (AIR 1975 SC 87)

In this case, two of the accused, after sustaining minor injuries, returned to their house, retrieved a sword, and delivered fatal blows to the deceased's head with it. The court held that even if the deceased had caused the minor injuries to the accused, it did not justify the accused striking the deceased with a sword on such a vital part of the head. The severity of the injuries was not accidental, and the manner in which the accused murdered the deceased was intentional, not a matter of chance. Therefore, the accused could not claim the right of private defense.

Right of private defence against deadly assault when there is risk of harm to innocent person: Section 44

If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk.

Illustration

A is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob. Acommits no offence if by so firing he harms any of the children.

 

CONCLUSION

These are the general exceptions under BNS that are available to the accused to escape liability or defend themselves against the offence committed. In certain circumstances, these exceptions may even extend to acts resulting in the death of a person or causing harm to an innocent individual, depending on the situation. The principle behind these provisions is to ensure that the accused has the right to be heard, which aligns with the democratic character of our nation. That’s why such exceptions are essential — they allow individuals to represent themselves in a court of law.

To explore more about the legal framework of general exceptions, visit Legislative Department – Ministry of Law and Justice for official documentation and updates.