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This article is written by Vividh Jain, a student of the Institute of Law, Nirma University. In this article, the author provides a brief study of the acts done for the benefit of another person without obtaining the consent of that person. 

Introduction

Acts committed for the benefit of individuals or the benefit of any person without his/her permission are justifiable actions, which essentially protect or exempt a person from criminal liability. Sections 88, Section 89, and Section 92 of the Indian Penal Code, 1860 describe cases in which attempts to harm the victim are performed in good faith for the individual’s benefit. Noted that mere pecuniary benefits do not come under the definition of benefit mentioned in Section 88, Section 89, and Section 92 of the Indian Penal Code, 1860. 

Section 88 of the Indian Penal Code

Section 88 of the Indian Penal Code deals with the acts done without any intention to kill any person, but done by the consent of that person in good faith only for that person’s benefit. Furthermore, this section says that nothing is an offence which has not been intended to cause harm or death, by any reason of causing harm that may cause death or intended by the doer to cause death or known by the doer that the act may cause death, causing harm in good faith to any other person for whose benefit it is done, and that person also give consent for such harm, whether impliedly or expressly, to suffer such injury or harm or ready to take the risk for such harm.  

For example, Kamal, a surgeon, recognizes that a specific operation is likely to cause Kishor’s death, who suffers from a severe condition. Here, Kamal does not intend to cause Kishor’s death and in good faith for the benefit of Kishor performs the surgery on Kishor, with Kishor’s consent. Here, Kamal did not commit any offence.

Section 89 of the Indian Penal Code

Section 89 of the Indian Penal Code, 1860 deals with the acts done for the benefit of any child or the benefit of an insane person, in good faith after taking consent of the guardian. Furthermore, this section says that nothing is an offence which has been done for the benefit of a child below the age of twelve years and any person of unsound mind in good faith by taking the consent of the legal guardian expressly or impliedly, and the guardian should have the legal charge of that child or the person of unsound mind, is an offence which has not been intended to cause harm or death, by any reason of causing harm that may cause death or intended by the doer to cause death or known by the doer that the act may cause death, causing harm in good faith to any other person for whose benefit it is done. 

For example, Aman, a surgeon, sees a child undergo an injury that will potentially prove fatal unless an operation is performed instantly. There is no time to call and apply for the guardian of the child. Aman executes the operation against the child’s consent, seeking the child’s benefit in good faith. Aman did not commit any offence.

Arun is in a fire-filled building with a child named Joy. People from the neighbourhood are holding out a blanket below the building. Arundumps the child from the roof of the tower, knowing that the fall is likely to kill the child and likely to cause the death of Joy, but Arun has no intention to kill the child, and in good faith hopes to help the child. And if the child named Joy is killed by that fall, here Arun has not committed any offence.

Section 92 of the Indian Penal Code

Section 92 of the Indian Penal Code, 1860 deals with the acts done for the benefit of another person without obtaining the consent of that particular person. Furthermore, this section says that nothing is an offence which has been done for the benefit of an individual in good faith even without taking the prior permission or consent of that person, if the circumstances are such that, for any other person it is impossible to obtain the consent of the concerned individual, and such person is not capable to give consent and at the same time he has no legal guardian who can give consent of his behalf, provided that the guardian should have the legal charge of that person from whom the consent would easily obtain within a time limit, to do things for the benefit of such person.  

For example, Zaheer was carried off by a lion. Aman fires at the lion knowing the consequences that it may likely that the fired shot may kill Zaheer, although Aman had no intention to kill Zaheer, and in good faith intended the benefit of Zaheer. Aman’s shot gives Zaheer a mortal injury. A has not committed any offence.

Essential ingredients of these three sections

No criminal intention to cause death

These three sections of the Indian Penal Code provide that the perpetrator shall not have an intention to cause the death of the concerned person. Sections 89 and Section 92 deals with the situations in which a person to whom the harm or injury has been caused are not able to give consent of the act. In Section 89 of the Indian Penal Code, the guardian or any person who possesses legal charges may give consent to an act done for the benefit of a child under the age of twelve years and a person with an unsound state of mind. In these two sections, the first provision of these sections clearly states that this exemption shall not extend to the intentional killing of any person or attempting to cause the death of such person. 

The terms also state that, according to these provisions, there would be no intent or mens rea present in the mind of doer at the time of the commission of such act, to cause death to get immunity from criminal liability. The intention shall not be to cause the death of a person, while the doer might be conscious that the act is likely to result in death.  

For the benefit of such a person

In all these three sections, if the perpetrator wants to take advantage of the exemption from criminal liability, he must show that the act is committed for the “benefit” of the person concerned, but merely without the purpose of harming. The term ‘merely pecuniary benefit’ suggests that although the act cannot be for pecuniary benefits alone, it can be for pecuniary gain as well as any other advantage. Therefore, if the harm is done, is simply a pecuniary advantage, it does not amount to value as indicated in Section 88, 89, and 92 of the Indian Penal Code. 

Good faith

These provisions specify that the perpetrator of the act causing the harm must not wish to inflict death or grievous injuries, but must act in good faith. An act is said to not be done in good faith according to Section 52 of the Indian Penal Code if it is done or assumed without proper care and consideration. To gain the protection of section 88 and section 89, the perpetrator must show that he has done the conduct committed with ‘due treatment and consideration’ as an offence. However, as far as Sections 88, 89, and 92 of the Indian Penal Code are concerned, sometimes ‘good faith’ can be more than mere ‘due care and treatment.’ This is particularly relevant when it comes to dealing with the actions of doctors and physicians.

Consent

‘Consent’ needs to be sought from the individual concerned, in compliance with Section 88. Under Section 89 of the Indian Penal Code, consent must be obtained either from the parent of a person or from another legal entity responsible for that individual, in so far as it deals with harm or injury caused for the benefits good of a child under the age of twelve years or an adult of an unsound state of mind. As for Section 92, emergencies are addressed when either the person being harmed or the guardian of such person is impractical or could not obtain the consent of the person being harmed if the person being harmed is a minor or a person of unsound mind. 

Corporal punishment by school teachers

When a child is under the age of twelve and sent to a school by his/her parent or any legal guardian, it has been presumed that the parent or legal guardian gives implied consent to put their child under the supervision, discipline, and control of the school authority and, if appropriate, to impose fair and reasonable punishment on that child for the enforcement or maintenance or correction of the school discipline. And when a child crosses the age of twelve went to school, it could be concluded that the child who goes to school gives his implied consent that he should follow the discipline, rules, and regulations of the school authority and would undergo mild and fair corporal punishment which has been required for the correction and enforcement of or maintenance of the school’s discipline. 

Provided that the mild punishment shall be imposed by the teacher in good faith and has been required for the correction and enforcement of or maintenance of the school’s discipline to preserve the school environment. 

In the case of Ganesh Chandra Saha v. Jivraj Somani, the Calcutta High Court held that if any limits and regulations laid by the concerned state government in regards with Section 89 of the Indian Penal Code, 1860, the teachers would be protected under the concerned provisions even if he exceeds the limit. 

In the case of M Natesan v. the State of Madras, the Madras High Court held that it could not be denied that, given the peculiar position of a school teacher, he must have the authority, in the nature of things, to enforce disciplinary activities and to correct the charge imposed on him by the student or by parents. Refusing the authority would be refusing whatever is appropriate and necessary for the student’s health, education, and discipline.

Therefore, it should be concluded that, as a parent entrusts the child to a teacher, he knowingly consents to the teacher exercising that power on his behalf. The pupil’s identity is covered by the Indian Penal Code’s criminal provisions. However, Sections 88 and 89 accepted exceptions in the same Code. Unless the teacher violates the authority and does the student such harm that could be deemed unfair and injudicious, the advantage of the exceptions will, of course, be missed. If or not he has the right to benefit from the exceptions in a particular situation depends on the precise type, severity, and extent of the penalty. 

Conclusion

Section 91 of the Indian Penal Code is the exception of Section 88 and Section 89 of the Indian Penal Code, 1860. It does not state in any meaningless terms that consent would justify the act that causes harm or injury to the person who gives consent for such activities, that would otherwise be an offence. The damage caused to individuals with their consent or for their gain does not constitute an offence under Section 88 and Section 89 of the Indian Penal Code, as long as such harm or injury is unlikely to cause death or serious harm to a consenting person. The alleged acts shall cause harm or cause harm, according to sections 88 and 89 of the Indian Penal Code. Such acts constitute crimes, except with the permission of the person doing the injury. Accordingly, the conduct of the doer under Section 88 and 89 of the Indian Penal Code, except for the permission granted, may constitute an infringement regardless of any damage which may be caused or wished to cause.

Reference


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