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Necessity (IPC)

Updated: May 12


Necessity (IPC)
Necessity (IPC)

Content:-



Absence Of Criminal Intent  [Secs. 81-86 AND 92-94]


"Criminal intention," in legal terms, refers to the deliberate aim or plan to carry out an action prohibited by criminal law, without any legitimate cause or justification.



However, there are instances where actions may seem to violate the law but are executed without any criminal intent. In such cases, it is reasonable that these actions are not subjected to penalties, as they lack the necessary mens rea, or guilty mind, required for criminal liability.



This principle recognizes that not all actions that technically breach the law are morally or criminally blameworthy.


Sometimes, individuals may inadvertently find themselves in situations where they unknowingly commit acts that appear to be illegal.


Without the presence of criminal intent, imposing penalties on such actions would be unjust and contrary to the fundamental principles of fairness and justice in legal proceedings.



Therefore, it becomes essential for legal systems to distinguish between actions carried out with criminal intent and those performed innocently or inadvertently, ensuring that only those with culpable mental states face punishment under criminal law.



There are seven such acts mentioned in Secs. 81-86 and 92-94:


  • Act done to avoid other harm (Sec. 81).


  • Act of a child (Secs. 82-83).


  • Act of lunatic (Sec. 84).


  • Act of an intoxicated person (Secs. 85-86).


  • Bona fide act for another’s benefit (Sec. 92).


  • Communication made in good faith (Sec. 93).


  • Act done under compulsion or threat (Sec. 94).

 
 

Sec. 81: Act Done to Avoid Other Harm [Defence of Necessity/ Salvage]


Sec. 81. Act likely to cause harm, hut done without criminal intent, and to prevent other harm - "An act done with the knowledge that it is likely to cause harm, but done in good faith, and without any criminal intention to cause harm, for the purpose of preventing or avoiding harm to person or property is not an offence”



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, 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 risk of running down a boat C with only two passengers on board, which he may possibly clear. Here, if A alters his course without any intention to run down the boat C and in good faith for the purpose of avoiding the danger to the passengers in the boat B, he is not guilty of an offence, though he may run down the boat C by doing an act which he knew was likely to cause that effect, if it be found as a matter of fact that the danger which he intended to avoid was such as to excuse him in incurring the risk of running down C. 


  • A, in a great fire, pulls down houses in order to prevent the conflagration from spreading. He does this with the intention in good faith of saving human life or property. Here, if it be found that the harm to be prevented was of such a nature and so imminent as to excuse A’s act, A is not guilty of the offence.11



Sec. 81 operates on the principle that in cases of sudden and extreme emergencies where one of two evils is unavoidable, it is lawful to ensure that only the lesser harm occurs ("the lesser of two evils").



Individuals are excused from causing lesser harm to prevent or mitigate greater harm. Whether such circumstances necessitating the choice between two evils exist is determined on a case-by-case basis as a question of fact.



This section is rooted in two fundamental maxims: "Quod necessitas non habet legem," meaning "necessity knows no law," and "Necessitas vincit legem," which signifies "necessity triumphs over law."



It asserts that an action should not be deemed criminal solely because it is undertaken with the awareness that it may cause harm, provided it is done in good faith, without any criminal intent, and with the aim of preventing or averting further harm to individuals or property. 



Case Laws

In the case of R. v Dudley and Stephens (“Mignoets’ case”) (1884) 14 Q.B.D. 173, it was established that a person who, in a desperate attempt to stave off starvation, kills another for the purpose of consuming their flesh, is still guilty of murder.


The doctrine of self-preservation does not apply in such dire circumstances.  In this particular case, four individuals, including one young boy, found themselves stranded on a ship after a shipwreck, with no provisions of food or water.


Their supplies had depleted seven days before the storm, and they had been without water for five days. Dudley, one of the men, suggested sacrificing the young boy since he was the weakest.


Without the agreement of Brooks, another man among them, Dudley proceeded to kill the boy. Subsequently, all three men consumed the boy's flesh to survive until they were rescued four days later.


Despite their desperate situation, the defence of necessity was not upheld, and they were convicted of murder.


The case of Dudley and Stephens set a significant legal precedent, asserting that necessity cannot justify the commission of murder. Lord Coleridge, in his ruling, emphasised the moral duty individuals may have to sacrifice their own lives for the sake of others, highlighting examples from war and maritime disasters.



He underscored that while preserving one's life is typically a duty, there are circumstances where the highest duty may be to sacrifice it for the greater good, a principle that should not be disregarded even in the most desperate situations.


In the case of R. v Martin (1989) 1 All ER 652 (CA), the defendant faced charges for driving despite being disqualified from driving.


He attempted to raise necessity as a defence, but the court rejected it, stating that necessity does not apply to "absolute" offences.


However, the court acknowledged the existence of a defence of necessity arising from threats of violence or "objective dangers," termed "duress of circumstances," which threaten the defendant or others.


This defence is only available if the defendant's actions can be deemed reasonable and proportionate in avoiding the threat of death or serious injury.

 
 

In the case of Carter v Thomas (1976), a fire broke out on the plaintiff's premises, prompting the arrival of firemen to extinguish it.


Simultaneously, the defendant entered the plaintiff's property with the intention of assisting in putting out the fire by using a bucket of water.


Despite the defendant's intentions, the plaintiff filed a lawsuit alleging trespass, arguing that the defendant entered the property without authorization. The defendant claimed the defence of necessity, asserting that extinguishing the fire was essential.


However, the court ruled against the defendant, noting that the presence of firemen on the scene already handling the situation negated any necessity for the defendant's actions. Consequently, the defendant was found guilty of trespass.


In Gopal Naidu v Emperor (1923) ILR 46 Bom 605, police officials were charged with wrongful confinement for restraining a drunken man who was carrying a revolver.


Although the drunken behaviour constituted a non-cognizable offence without a warrant, the officials argued justification under the defence of necessity.


The Bombay High Court held that this defence could be invoked to protect either the accused's own person or property or that of others. The term "harm" in this context refers to physical injury.

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