This article is written by Prasoon Shekhar, from ICFAI Law School, Dehradun.
Table of Contents
Introduction
If we refer to the Indian Penal Code, the term good faith is defined in a negative manner. It holds a strong relevance in criminal law in deciding the intention while charges against the accused whether the act done by the person accused was done in good faith or with ill will. As per Section 52 of IPC, nothing is said to be done or delivered in ‘good faith’ which is done or delivered without due care and attention. If we look into the dictionary, ‘good faith’ is also considered to be a fact done honestly but in ‘good faith’ in IPC connotes a different meaning.
According to IPC, good faith requires due care and attention and for an act to be done in good faith it should be done without carelessness and negligence. Also, the belief for doing the act should be a reasonable and not an absurd one. The question with respect to good faith depends upon the facts and circumstances of the case. It also depends on the ability, intelligence and profession of a person.
Essentials of Good Faith under IPC
- Good Intention; and
- Due care and attention.
In the case of Sukaroo Kobiraj v. The Empress [i], the appellant was convicted under 304A for performing a very serious operation i.e., cutting out of internal piles of a prisoner and as a result of excessive bleeding the prisoner died. The court held that the prisoner is not entitled to get the benefit of Section 88 as although he had no intention of causing death to the prisoner but if from the bare perusal of good faith as defined under Section 52, an act is not said to be done in good faith if it is not done with due care and attention. In the present case too, the accused was uneducated of conducting surgery and he didn’t get the immunity of good faith and was held liable under 304A.
Plea of Good Faith as a defence
Section 76: It stated that an act done because of a mistake of fact in good faith because he considers himself to be bound by law to do that act is not an offence.
In the case of State of West Bengal v. Shew Mangal Singh and Ors. [ii], the respondents were convicted under section 302 of IPC but the Supreme court held that their act was justified and lawful as they did the present act on the orders of their superior officer and held that as per the circumstances of the case, the order of open fire could be acceptable.
Section 77: The act of a judge acting judicially on which in ‘good faith’ he believes to be is not an offence.
Essentials to get immunity of section 77 are:
- The act must be performed by a judge; and
- The power exercised by him is done in good faith.
In the case of Surendra Kumar Bhatiya v. Kanhaiya Lal and Ors. [iii], it was observed that a collector using his power under the Land Acquisition Act is neither a judge nor he can use his power judicially.
Section 78: This section protects the person who executes an order/judgement of the court. The section states that when an order or judgement is in force, anything performance done for the same is not an offence. Even when it is beyond jurisdiction and the person believes in good faith to be in jurisdiction then also he is not liable for any offence.
The essentials of section 78 are:
- There must be an order/judgment of court;
- The order/judgement must be in force;
- The order/judgement passed must be within the court’s jurisdiction; and
- If it is beyond jurisdiction the person must be acting in good faith of it being within jurisdiction.
Section 79: This section protects the person who does an act, due to reason of mistake of fact, in good faith and thinks that they are justified by law to do so.
The principle of ‘Ignorantia facti excusat ignorantia juris non excusat’ applies and mistake of law is not at all excusable.
In the case of Chirangi v. State [iv], a person was accused of murder who in state of delusion imagined his son to be an animal, and killed him with an axe. He was not held liable as because of a mistake of fact he imagined his son as an animal.
In the case of R v. Prince [v], a person was charged for taking away a minor girl without their parents consent but the actual age of the girl was 16 years. Even the judge observed the girl seems to be a major, but the accused was held liable as mistake of law is not an excuse.
Also, in the case of M.H. George v. State of Maharastra [vi], a person was carrying gold from Zurich to Manila. Flight has a stoppage at Bombay airport, and the custom officials recovered gold from the accused. He said that he was not aware of the Foreign Exchange Regulation Act. He was held liable as ignorance of law is not an excuse in the eyes of law.
In the case of Keso Sahu v. Saligram Shah [vii], the accused brought the cart and the cart man to the police station in good faith as he thought that the offence of smuggling was going on, but he was proved to be wrong. It was held that the accused can take the defence of mistake of fact as the act was done in good faith and the same is justified by law.
In the case of Dhaki Singh v. State [viii], the accused misunderstood an innocent person as a thief shot at him. In the findings, it was evident that he was not in a position to catch the thief so he shot at him, but it is not a mistake of fact and the same cannot be justified in the eyes of law and he was held liable for the offence.
Section 88: A person who does an act not intended to cause death and done for the benefit of a person with his consent (either express or implied) cannot be held liable for the act if it leads to any other harm or death.
Example: A, a surgeon who knows that the operation is critical and can even lead to death, but if he does the act in good faith for protecting the life of the patient with due care and attention, he cannot be held liable.
In the case of G.B Ghatge v. Emperor [ix], a school teacher was accused of beating a boy with a cane stick. He was not held liable as the punishment given to the boy was given to the correct boy and maintained the discipline of the school.
Section 89: An act done by a person in good faith for the benefit of the child or an person of unsound mind on the consent(either express or implied) of his guardian or person having legal right is not an offence.
Exceptions to Section 89 are as follows:
- Person doing the act intentionally causes or attempts to cause death.
- Person doing the act with the knowledge that his act can lead to death, infirmity or any grievous disease.
- Person doing the act should cause or attempt to cause grievous hurt.
- Abetment of an offence to the committing of such offence.
Example: ‘A’ father of a child gave consent for cutting the stone of the child and he had the knowledge that the operation is critical and it can even lead to the death of the child, but if he has given consent in good faith for the benefit of his child he is exempted from criminal liability.
Section 92: A person cannot be held liable for an offence if he does act for the benefit of the other with good faith but when it is not possible to obtain the consent of him or his guardians.
Essentials of Section 92 are as follows:
- An act is done for the benefit of the other person; and
- Act must be done in good faith; and
- It is not possible to obtain the consent of the person or his guardian; or
- There is no time to obtain the consent.
Example: There are ‘n’ number of cases daily in which the person meets with accident or any other reason and if he condition is critical, there is not enough time to get the consent of his guardian and sometimes it is even difficult to contact their guardian. Operations are performed by doctor without consent and they get the immunity as specified under this section.
Section 93: Communication Done in good faith
If any communication is given to a person for his benefit in good faith, the person giving the communication is not liable for any harm caused.
Example: ‘A’ a doctor told to a patient that he is suffering from last stage of cancer and as a result the patient committed suicide. The doctor is not responsible for his death as he talked about the patient’s condition in good faith.
Exception 3 of Section 300: A person (either public servant or one authorized by a public servant) is not liable for exceeding power to cause death if he did so with good faith and lawful intention without ill-treatment to the person whom death is caused.
Example: A police officer went to arrest a person and the person started running away. The police officer shot him. He is not liable for murder.
In the case of Dukhi Singh v. State [x], a RPF constable was given benefit of this section who while shooting a thief who was trying to run away shot a fireman unintentionally.
Section 339: The exception of this section states that if any person who in good faith thinks that he has the right to obstruct the private way over land or water then he is not liable under this section.
In the case of Madala Perayya v. Varugunti Chendrayya [xi], the accused and the complainant were both the joint owner of a well. The accused restricted the complainant from using water and also stopped the complainant’s bullock from moving. Since, both were joint owners so that both had equal rights over and the act done by the accused was not done in good faith but in malice and hence he was made liable under Section 339 of IPC.
Section 499: Exception 3 to this section provides that a person cannot be held liable for expressing their views with good faith and honesty on conduct of a person discharging public function.
Conclusion
The term ‘good faith’ is a very fair provision as it provides immunity to many people whose act is surrounded by taking risks for the benefit of the person or of the society. Eg. Police officials, Medical Practitioners etc. Also, the term good faith is not having an absolute definition but it depends upon case to case but for an act to be done in good faith, the same should be done with due care and attention. Mens rea is an essential element for constituting a crime and acts devoid of the same are exempted from criminal liability.
It is very easy to interpret the term good faith but it is quite complex to define it as we often use the words like good or bad but generally we do not use terms like good faith or bad faith. In general, people often refer ‘good faith’ to being honest but that is not as defined in IPC. Apart from being honest, proper care and attention are required in doing an act.
References
- (1887) ILR 14 Cal 566
- AIR 1981 SC 1917
- (2009) 12 SCC 184
- (1952) Cri LJ 1212
- (1875) LR 2 CCR 154
- 1965 SCR (1) 123
- (1977)Cri LJ 1725
- AIR 1955 All 379
- AIR 1949 Bom 226
- 1955 CriLJ 905
- 1954 CrLJ 283 Mad
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