Doctrine of Necessity

TANMOY MUKHERJEE INSTITUTE OF JURIDICAL SCIENCE

Dr. Tanmoy Mukherjee

Advocate

Doctrine of Necessity:

 TANMOY MUKHERJEE

[ADVOCATE]

Section 19 of the Bharatiya Nyaya Sanhita, 2023 corresponds to section 81 of the Indian Penal Code, 1860.

According to Section 19 of the Bharatiya Nyaya Sanhita, 2023- Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property.

Explanation—It is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm.

• Scope (Section 19):

• An act which would otherwise be a crime may in some cases be excused if the person accused can show it was done only in order to evade consequences which could not otherwise be avoided and which, if they followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably obligatory for that purpose, and that evil inflicted by it was not disproportionate to the evil avoided.
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• Without any criminal intention [section 19]

• Under no circumstances can a person justified in knowingly causing harm, but if he causes harm without any criminal intention, and merely with the knowledge that it is likely to ensure, he will not be held responsible for the result of his act, provided it be done in good faith to avoid or prevent other harm to person or property.
• Criminal intention simply means the purpose of design or doing an act debarred by the criminal law without just cause or excuse.
• An act is intentional if it exists in idea before it exists in fact, the idea realizing itself in the fact because of the desire by which it is accompanied.
• The motive for an act is not a sufficient test to determine its criminal character.
•  By a motive is meant anything that can contribute to give birth to, or even to prevent, any type of action.
•   Motive may serve as a clue to intention, but although the motive is pure, the act done under it may be criminal.
• Purity of motive will not remove an act of its criminal character.
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• Mens rea [Section 19]:
• It is a well settled principle of common law that mens rea is an essential ingredient of criminal offence.
• A statue can exclude that element, but it an appropriate rule of construction adopted in England and also accepted in India to construe a statutory provision creating an offence in conformity with the common law rather than against it unless the statute expressly or by necessarily implication excludes mens rea.
• There is a presumption that mens rea is an essential ingredient of statutory offence, but this may be rebuttable by the express words of a statute creating the offence by necessary implication.
• Mens rea by necessary implication can be excluded from a statute only where it is absolutely clear that the implementation of the object of a statute would otherwise be defeated and its exclusion enables those put under strict liability by their act and omission to assist the promotion of law.
• The nature of mens rea that will be implied in a statute creating an offence depends upon the object of the Act and the provisions thereof.

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• Mens rea is an essential ingredient  in every offence except in three cases –
• Cases not criminal in any real sense but which in public interest are prohibited under a penalty.
• Public nuisance, and
• Cases criminal in form but which are really only a summary mode of enforcing a civil right.
• The maxim actus non facit recum, nisi mens sit rea has, however, no application in its technical sense to the offences under the Penal Code, as the definitions of various offences contain expressly a proportion as to the state of mind of the accused.

•  In other words, each offence under the Code except offences like waging war[section 121], sedition [section 124A], kidnapping and abduction[section 359,363] and counterfeiting coins[section 232] prescribes a mens rea of a specific kind which is not exactly the same as mens rea in the sense of being guilty mind under the common law.

• Thus, throughout IPC 1860, the doctrine of the mens rea runs as a running thread in the form of “intentionally”, “voluntarily”, “knowingly”, “fraudulently”, “dishonestly” and the like. It is therefore, not entirely correct to say that the doctrine of mens rea is incapable to the offence under the Penal code. What the code requires is not negation of mens rea but mens rea of a specific kind and this may different from offence-to-offence. 
• In this section and sections 88, 88, 89, 91, 92, 93, 95, 100, 104 and 106, ‘harm’ can only mean physical injury.

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•  Reference Cases[ section 19]:
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