Nothing is an offence 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 believes himself to be, bound by law to do it. Illustrations (a) 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. (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.
Understanding the Section
Section 76 IPC protects a person when they perform an act under the belief that they are obliged by law to do so. This principle arises from the fact that a person cannot be criminally liable if his action were carried out under the authority of law, or if by reason of such a mistake of fact (not mistake of law) he honestly believed in good faith that the law obliged him to act as he did.
This provision ensures that people who performed the act in the spirit of trying to follow lawful authority, or justified mistaking facts are not punished unjustly. This protection does not extend to an act performed under a mistake of law. The applicable legal maxim in this case is: “ignorantia facti excusat, ignorantia juris non excusat” which means; ignorance of fact is an excuse, but ignorance of law is no excuse.
Essential Elements
In order to avail oneself of defence under that section, the following essential factors must be satisfactorily proved:
- Bound by Law – The person must be bound by law to commit the act, such as a soldier firing upon a mob on lawful orders.
- Mistake of Fact – If the person is not legally bound to act, then he must be acting under a mistake of fact, not law, that he is bound to act.
- Good Faith – The person must honestly, i.e., in good faith, made mistake under circumstance which warrants due diligence and necessary inquiry.
- No Mistake of Law – There is no protection in Section 76 for a mistake of law.
Punishment
Section 76 can do no punishment, as the conduct implicated by the section are not offences at all. It is simply a section of immunity from criminal liability.
Illustrations
- Illustration (a): A Soldier Following Orders
A soldier discharges a firearm at a mob by command of his superior officer, consistent with lawful command. In this case, A is required to comply with the lawful commands of his superior officer. Accordingly, A has not committed any act of wrongdoing.
- Illustration (b): A Court officer Incorrectly Arresting
A Court officer is directed to arrest Y. Following an enquiry, the officer mistakenly thinks that Z is Y and arrests Z. In this case, the officer’s mistake is a mistake of fact (the identity of the person), and not a mistake of law. Because he acted in good faith, the Court officer did not commit any wrongdoing.
Examples
- Example 1: A policeman arrests a person mistakenly believing that the person he arrested is the individual, the policeman is supposed to arrest, having done an appropriate enquiry; this is a mistake of fact, allowing protection under Section 76.
- Example 2: A soldier during a curfew fires upon people looting in the streets, acting on the direct order from his officer in compliance with the law; he cannot be found guilty of an act of wrongdoing as he is lawfully obligated to obey.
- Example 3: A person believes that the law allows him to steal property (as mistaken belief); that is a mistake of law and not a mistake of fact and he will get no protection under Section 76.