Navigating the Exceptions: When Criminal Liability Does Not Apply

Criminal law does not operate in absolutes. While it defines what constitutes a crime and prescribes punishment, it also acknowledges that not every act causing harm deserves punishment. Under Indian criminal law, Chapter III of the Bharatiya Nyaya Sanhita (BNS), 2023 – which replaced the Indian Penal Code, 1860 on 1 July 2024 – lays down a set of General Exceptions that shield certain individuals from criminal liability. These exceptions rest on a fundamental principle: without mens rea (guilty intent) or voluntariness, there can be no true crime. Understanding these exceptions is essential for any law student, because they define the very limits of criminal responsibility.

What are general exceptions and why do they exist? 🔗

Every definition of an offence under the BNS must be read alongside the General Exceptions contained in Chapter III. These exceptions are applicable not just to offences under the BNS, but also to offences under any special or local law. This universality is what makes them “general” exceptions – they are not carved out for one offence alone.

The exceptions are broadly classified into two categories. Justified acts are those that would ordinarily be criminal but are rendered lawful by the circumstances – such as acts of private defence or necessity. Excusable acts are those where the person causing harm cannot be morally blamed because they lacked the mental capacity or freedom to act otherwise – such as acts committed by a child or a person of unsound mind. These defences depend on the circumstances prevailing at the time, the accused’s mental state, and the reasonableness of their action.

One procedural point is critical: the burden of proving that a case falls within one of these general exceptions lies on the accused. The court presumes the absence of such circumstances unless the accused proves otherwise. The prosecution still must establish guilt beyond reasonable doubt, but once guilt is established, the accused must raise and prove the exception they rely upon.

Mistake of fact 🔗

One of the most cited exceptions involves acting under a mistake of fact. The BNS (corresponding to Sections 76 and 79 of the old IPC) protects a person who, in good faith, acts under the belief that they are either legally bound to do something, or legally justified in doing it – provided this belief arises from a mistake of fact and not of law. The Latin maxim ignorantia facti doth excusat, ignorantia juris non excusat captures this exactly: a mistake of fact is excusable, a mistake of law is not.

Consider a police officer who, acting on reasonable information, arrests the wrong person genuinely believing them to be a suspect. That officer would not be criminally liable. However, if the officer arrests someone claiming they misunderstood a legal provision that permits arrest, that is a mistake of law and no protection is available. A shop owner who detains a person they mistakenly believe to be a shoplifter is similarly protected under this provision.

Judicial acts 🔗

Judges and court officers acting within their jurisdiction are protected from criminal liability for acts done in the course of their judicial duties. If a judge sentences someone to death following a lawful trial, they cannot be prosecuted for causing that person’s death. Similarly, a bailiff executing a court order, even one later found to be incorrect, is protected from liability as long as they genuinely believed the court had jurisdiction and acted in good faith. This protection is essential to the functioning of the judiciary – without it, no judge or officer could discharge their duties without fear of personal prosecution.

Accident in doing a lawful act 🔗

Section 80 of the old IPC – preserved in substance under the BNS – protects a person who causes harm through a pure accident while doing a lawful act in a lawful manner, with proper care and caution, and without any criminal intention. The act must be done without knowledge and criminal intention of harming anyone, it must be lawful, done through legal means with proper care, and there must be no probable likelihood of an offence being committed as a consequence.

All four conditions must be met together. A carpenter who accidentally injures a bystander while lawfully sawing timber would be protected. But someone who swings a tool recklessly in a crowded place cannot claim accident as a defence – the lack of proper care and caution removes the protection.

Absence of criminal intention 🔗

Act done to avoid greater harm (necessity) 🔗

The law recognises that sometimes a person must choose between two evils. Where someone commits an act knowing it may cause harm, but does so in good faith and without criminal intention to prevent greater harm to person or property, that act is not an offence. The classic illustration is a person who pulls down buildings during a major fire to stop a conflagration from spreading, or where sailors throw goods overboard to prevent a vessel from sinking. The harm caused is outweighed by the harm prevented.

Act of a child (infancy) 🔗

Indian law recognises that young children lack the cognitive ability to form criminal intent. Section 20 of the BNS (formerly Section 82 of the IPC) provides absolute immunity to children under seven years of age – they are presumed doli incapax, meaning incapable of crime. No criminal proceedings can be initiated against them. If an adult commits a crime through a child under seven, only the adult is liable.

For children between seven and twelve years, Section 21 of the BNS offers conditional protection – they are exempt if it is proved that the child had not attained sufficient maturity of understanding to judge the nature and consequences of their conduct. This is not absolute immunity; it requires the court to assess the child’s actual level of understanding at the time of the act. Once a child crosses twelve years, they may be held fully liable, though the Juvenile Justice (Care and Protection of Children) Act, 2015 separately governs how minors are tried and treated.

Act of a person of unsound mind (insanity) 🔗

Under the BNS (corresponding to Section 84 of the old IPC), a person is not criminally liable if, at the time of committing the act, they were of unsound mind and incapable of knowing the nature of the act, or that what they were doing was wrong or contrary to law. This is the Indian version of the M’Naghten Rules – the cognitive incapacity standard developed in English law that has shaped insanity defences worldwide.

Two points are worth noting. First, the insanity must exist at the precise moment of the act – not before or after. Second, the burden is on the accused to prove insanity on a balance of probabilities. A regular ganja smoker who commits a violent act cannot claim this protection merely because of an unreasonable state of mind; the unsoundness must be such that the person was genuinely incapable of distinguishing right from wrong at that moment.

Intoxication 🔗

Intoxication as a defence is treated very differently depending on whether it was voluntary or involuntary. If a person is intoxicated against their will or without their knowledge, and as a result is incapable of exercising judgment, they are protected from criminal liability. However, voluntary intoxication is no defence. The Latin maxim Qui peccat ebrius, luat sobrius – one who sins when drunk must be punished when sober – captures this position precisely. The Supreme Court in Bablu @ Mabarik Hussain v. State of Rajasthan held that mere proof of intoxication will not acquit the accused – the alcohol must have been administered without the person’s knowledge or against their will.

Acts done with consent 🔗

Consent is a powerful exception in criminal law, captured in the maxim volenti non fit injuria – no harm is done to one who consents. A person is protected from criminal liability if they cause harm that the victim consented to, provided the act was not intended or known likely to cause death or grievous hurt. Two people voluntarily sparring in a boxing match are a clear example – if one injures the other during the fight, no criminal liability arises.

However, consent must be genuine. The BNS specifies that consent given under fear of injury, misconception of fact, or by a person who cannot understand the nature of the act due to unsoundness of mind or intoxication, is not valid consent. Consent given by a child under twelve is also not valid. Mere submission – especially under pressure or coercion – is not the same as consent, a distinction that courts have consistently maintained. The Gauhati High Court in Jakir Ali v. State of Assam held that submission under fear or misconception of fact cannot constitute valid consent.

Act done under duress or compulsion 🔗

Section 94 of the IPC (mirrored in the BNS) protects a person who commits an act under threat of instant death. The compulsion must be immediate and the threat of death must leave the person with no reasonable alternative. This exception, however, does not extend to murder or offences against the state punishable by death – the law draws a clear line that no one can escape liability for taking an innocent life simply because they were threatened.

Trifling acts 🔗

Not every minor harm constitutes a criminal offence. Section 95 of the IPC – carried into the BNS – provides that an act causing negligible or trifling harm that no person of ordinary sense and temper would complain of is not an offence. This reflects the principle de minimis non curat lex – the law does not concern itself with trifles. Accidentally brushing past someone on a crowded footpath, causing a slight inconvenience, is not an assault in law.

Right of private defence 🔗

Among all the general exceptions, the right of private defence is the most elaborate. Sections 96 to 106 of the old IPC – now reflected in the BNS – specify that every person has the right to defend their own body and property, and the body and property of others, against criminal acts. This right extends to causing death in certain situations, such as when the apprehension of death, grievous hurt, rape, kidnapping, or wrongful confinement is reasonable.

Three limits govern this right. First, it cannot be exercised where there is sufficient time to seek help from public authorities. Second, the harm caused in private defence must not be more than necessary. Third, the right commences as soon as a reasonable apprehension of danger arises and continues only as long as that apprehension continues – once the threat is neutralised, the right ceases. Continuing to beat an assailant who has already been rendered helpless would exceed the right.

The right also extends to property – against theft, robbery, mischief, and criminal trespass. Under Section 106 of the IPC (and corresponding BNS provision), even a risk of harm to an innocent person is permissible in the exercise of private defence against a deadly mob assault, provided no other option exists. The illustration of a person attacked by a mob who cannot fire without risking harm to children mingled with the assailants – yet still has the right to defend themselves – demonstrates just how far this protection extends in extreme circumstances.

The BNS and continuity of these exceptions 🔗

The Bharatiya Nyaya Sanhita, 2023 came into force on 1 July 2024, replacing the colonial-era Indian Penal Code of 1860. While the BNS introduces new offences and restructures several provisions, the General Exceptions – now placed in Chapter III of the BNS – retain the same substantive content as the IPC’s Chapter IV. The BNS continues to emphasise that these exceptions balance accountability with fairness, recognising that certain acts, though technically offences, may not deserve punishment given the unique circumstances in which they were committed. The section numbers have changed, but the legal principles remain intact, and the landmark judgments interpreting the old IPC provisions continue to guide courts in applying the BNS.

Key takeaway: why these exceptions matter 🔗

General exceptions are not loopholes – they are the law’s acknowledgment that human conduct is complex and context-driven. A criminal justice system that ignored mental illness, childhood, coercion, and genuine accident would be neither just nor rational. These exceptions ensure that punishment is reserved for those who truly deserve it: individuals who acted with free will and guilty intent. At the same time, they are tightly drawn and difficult to prove, which prevents misuse. For any student of law, mastering these exceptions is not optional – they are foundational to understanding how criminal liability actually works in India.

What do you think? If the right of private defence is meant to protect individuals in genuine emergencies, should the law extend it more explicitly to cases of domestic violence where the threat is ongoing rather than immediate? And given that voluntary intoxication provides no defence, does the law strike the right balance – or does it fail to account for cases where severe addiction impairs a person’s ability to act freely?

References

1. https://www.indiacode.nic.in/handle/123456789/20062
2. https://www.legalserviceindia.com/legal/article-2346-general-exceptions-under-law-of-crime-section-76-to-106-of-indian-penal-code.html
3. https://blog.ipleaders.in/general-exception-under-ipc/
4. https://www.legalserviceindia.com/legal/article-18580-general-exceptions-chapter-iii-under-bharatiya-nyaya-sanhita-bns-2023.html
5. https://blog.ipleaders.in/general-exceptions-under-indian-penal-code/
6. https://lawbhoomi.com/general-exceptions-in-ipc/
7. https://www.vkeel.com/legal-blog/general-exceptions-under-indian-penal-code-1860-sections-76-to-106
8. https://en.wikipedia.org/wiki/Bharatiya_Nyaya_Sanhita