This article is written by Kashish Kundlani, a third-year student of (BBA.LL.B) Ramaiah Institute of Legal Studies, Bangalore. In this article, we’ll discuss the interpretation of good faith under the Indian Penal Code.

Introduction

Have you ever given a thought to define ‘good faith’? It is very difficult to define ‘good faith’. Even on a daily basis, we define it as what is not evil or what is not bad but nobody explains what is good, we often define it in a negative way. Even in the Indian Penal Code, it is defined in a negative way and not to the point. Throughout the Indian Penal Code, a lot of importance is given to good faith because in any case it is very important to decide the intention of a person, whether he/she has done an act in a bonafide manner i.e. good faith or with evil intent.

Good faith under IPC

Section 52 of the Indian Penal Code defines good faith. Without due care and attention, nothing is said to be done or believed to be done in good faith.

The expression ‘with due care and attention’ is only used in this Section and not defined anywhere else.

The Courts on the basis of their judgments and interpretation have tried to explain it.

Based on the logic and reason, a good intention, with due care and expertise is an important factor while determining an act done in good faith.

The prevailing circumstances, capacity and intellect of a person should be kept in mind to analyse the act done by him.

Essentials

• Logic and a reason;
• A good intention with;
• Due or reasonable care; and
• With expertise or a skill.

Are the key points for determining the act done.

An act not intending to cause death done by consent in good faith for a person’s benefit

Section 88 of the Indian Penal Code defines that where the intention is not to cause death but by any such reason it may cause harm, or it may be intentionally caused by the doer, or the doer knows that it is likely to cause harm, to any person for whose benefit it is done in good faith and also expressly or impliedly the person has given the consent to suffer that harm or to take the risk of that harm will not be considered as an offence.

Illustration

‘C’, a surgeon, knows that a particular operation may result in the death of ‘W’ who is suffering from throat cancer, but there is no intention to cause his death and he does performs the operation in good faith and for W’s benefit that too with his consent. Here ‘C’ has committed no offence.

An act is done in good faith for the benefit of a child, or insane person, or by consent of a guardian

Section 89 of the Indian Penal Code states that any act done in good faith and for the benefit of the person who is below the age of twelve years, or who is of unsound mind by the guardian himself or by any other person who is lawful in charge of that person, either expressly or impliedly then it is not an offence even though it is likely to cause harm to the person.

Exception

• If the doer will intentionally cause death or intentionally attempts to cause death then the doer cannot defend himself under this Section.
• If the doer knows that by his actions it is likely to cause death, any grievous disease or infirmity then the doer cannot defend himself.
• If the doer voluntary causes grievous hurt, or attempts to cause grievous hurt then he cannot defend himself under this provision.
• If the doer abets someone to make him commit any offence then he can’t be protected under this. For example, ‘T’  for the benefit of his child who has an infection on his hand gave the consent to the doctor to cut his hand, being aware of the fact that such an operation might or has a probability to cause the death of his child but he does not intend to cause his child’s death. ‘T’ will not be held guilty because of this exception as his intention is to cure his child.

Section 92: An act done in good faith without the consent

Section 92 defines as not even a single act or thing is a crime if such reasons are present:

• If any harm caused to a person for whose benefit it is done in good faith, even without the person’s consent, and
• Even when the circumstances were such that it was impossible for that person to signify the consent, or
• That the person was incapable of giving consent, and
• Also the person has no guardian or any other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be in benefit.

Exception

• The doer cannot take advantage of this Section if he does the act intentionally to cause death or intentionally attempts to cause death.
• If the doer knows that such an act if done then the result is likely to cause death then he cannot be benefited under this Section.
• The doer should not extend the act to voluntarily causing hurt or even attempting to cause hurt.
• The doer should not enhance his act in order to instigate or abet any person to make him commit an offence.

Illustration

• ‘R’ was driving at night and suddenly his car crashed and he became unconscious. ‘S’, a surgeon, finds that surgery has to be done. So ‘S’ without the consent of ‘R’ but in good faith and for his benefit performs surgery before ‘R’ gains the power to judge. 

Here ‘S’ has not committed any offence. 

• ‘Y’ was carried off by a tiger. ‘D ‘saw this and then fires at the tiger knowing that firing at the tiger can also kill ‘Y’ but he does it in good faith in order to save him. The bullet fired injured ‘Y’. Here ‘D’ has not committed any offence.  
• Priyanka is in a house which is on fire with her child, Parth. There are few people standing outside holding out a blanket to save both of them. From the top of the house Priyanka drops her child knowing that this action is likely to cause death but not intending to kill and in good faith to save him. 

Here Priyanka has not committed any offence and even if the child gets killed by the fall she will still not be held guilty under this offence.     

Essentials of Section 92

• An act done for the benefit of a person who suffers harm.
• The act done must be in good faith.
• There was no time to obtain the consent of the person.
• Where it is impossible to signify the consent of that person.
• There was no guardian or lawful in charge of that person to obtain the consent.

Communication made in good faith

Section 93 of the Indian Penal Code defines the communication made in good faith.

It states that if anything is communicated to someone else in a good faith and for the benefit of that person then it is not an offence even if by the communication the person suffers any harm.

Illustration 

Sia, a surgeon, communicates to her patient that he cannot live much longer because of his incurable disease. The patient dies in consequence of the shock. Here Sia has not committed any offence even though she knew that the information might affect him.

Case laws

Doraswami Pillai v. The King-Emperor on 3 March,1903

In this case, the police constable under the suspicious character of the accused visited his premises at midnight with another constable and knocked on his door in order to check his presence in the house.

The constable wanted to watch his movements though it does not authorise the complainant to enter and watch the movements of the accused appearance in the house or knocking at his door at midnight to cause him annoyance and inconvenience. 

If any police constable wants to enter the premises to watch the movements or presence of a suspected person then it requires the public order from the concerned Magistrate.

Even after acquiring the public order it should be done with a lawful means and not by trespassing upon his premises or by opting any other unlawful means to do that.

It was found out that the accused after knocking by the constable he came out and abused and pushed the complainant and also afterwards brought a stick and lift it up in order to threaten him.

The accused will be held guilty under this act of assault done by him unless he proves it to be in the exercise of private defence of the property.

It was held that the police constable will be held liable for house-trespass under Section 442 of the Indian Penal Code because of the course adopted by the police was not appropriate and also insulting to the accused and held the actions of accused justified under Section 104 as a result acquitted him from the charges and also did not gave any defence to the police constable under Section 52 for acting in good faith.

Sukaroo Kobiraj v. The Empress on 30 April, 1887

In this case, the appellant was held guilty by the Sessions Court under Section 304A of the Indian Penal Code on the grounds that he caused the death of the patient by performing a very dangerous operation which resulted in unstoppable bleeding and in consequence he died.

He filed an appeal in the Calcutta High Court.

It was argued before the court that the appellant should not be held guilty under Section 304A as before also he has performed dangerous operation in which it was shown that it did not cause the death of any patient and even though he caused death then also he should be given the benefit under Section 88 as the act was done in good faith, without any intention to cause death and was done for the benefit of the patient who accepted the risk.

It was argued by the respondent that even if the intention to cause death is not there but it is difficult to establish the essentials of Section 52 which is ‘with due care and attention’ and he should not be given the relief or any benefit under Section 88 as he does not have any proper knowledge of how to perform surgery.

It was held by the court that he should be held guilty but should not be given a very harsh punishment as the patient’s approval for the operation was also there. So the court charged him a fine of ₹100 and if he fails to pay the fine then he has to undergo three months of rigorous imprisonment.

Plea of good faith as a defence

Apart from Section 88, 89, 92 and 93, the few other Sections of the Indian Penal Code where good faith is used as a defence are:

• Section 76 states that an act done by reason of a mistake of fact in good faith by the person who believes himself to be bound by law to do it is not an offence.
• Section 77 states that it is not an offence if any judge acts in the exercise of his judicial power given by law in which he believes it to be done in good faith.
• Section 78  if an act done in accordance with the law or any order of a court while such judgement or order was operative and even though the judge does not have any jurisdiction to pass such judgement or order but on the condition that such act was done in good faith believing that the court had such jurisdiction will not be said as an offence.
• Section 79  state that an act done in good faith by a person, by reason of a mistake of fact and therefore he believes that he is justified by the law in doing so is not an offence.
• Exception 3 of Section 300 states that culpable homicide is not murder where the offender in any way is a public servant, aiding a public servant or acting for the development of public justice, exceeds his power given by law in good faith or believes himself to be a lawful and necessary person to discharge by his duty and if in result causes death of the other person, is said to have not committed any offence.
• An exception of Section 339 states that it is not an offence where a person in good faith believes himself to have a lawful right to obstruct another person private way over any land or water. 
• It is an exception of Section 499 which states that any opinion expressed in good faith respecting the conduct or character of a public servant or respecting the merits of any case decided by a court or respecting the merits of any performance of an author or any charge made in good faith by a person to protect his and other interests is not an offence.

Conclusion

The expression ‘good faith’ is distant from being absolute and obvious, as we often consider it as the standard of behaviour of a person. Whatever according to us is reasonable and apt and also done with due care and attention we think it as if it is done in good faith.

The interpretation of good faith for our own understanding is easy while we compare it with behaviour but it becomes difficult to define it in words as we have a tendency to say that what is not morally wrong or bad is good but nowhere the term good faith is particularly and in a simple language defined.

But good faith if proved in any case can save a person where the trial against him is going on.

Apart from having the relevance of good faith in the Indian Penal Code, it has also been seen it’s significance in the Contract law. 

References

• http://www.shareyouressays.com/knowledge/good-faith-section-52-indian-penal-code-1860-summary/111713
• https://www.legiscompare.fr/web/IMG/pdf/13._CH_5_Good_faith.pdf
• http://www.shareyouressays.com/knowledge/section-52-of-indian-penal-code-1860-explained/118538

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