General Exceptions: Mistake of Fact and Judicial Acts

Under the Bharatiya Nyaya Sanhita, 2023 (BNS), an act is not an offence if the person did it because the law bound or justified it, or because a mistake of fact (never a mistake of law) led them to believe in good faith that it did. These rules sit in sections 14 and 17 of the BNS, and sections 15 and 16 add a separate protection for Judges acting judicially and for people carrying out a court's judgment or order. They replace sections 76 to 79 of the old Indian Penal Code, and the Supreme Court cases decided under those IPC sections still guide how courts read them.

This explainer is for first and second year B.A. LL.B. and LL.B. students who meet Chapter III of the BNS in criminal law, and for anyone who has wondered why a police officer who arrests the wrong man is not always guilty of wrongful confinement. The idea behind all four sections is simple: criminal law punishes a guilty mind, and a person who honestly and carefully believed the facts were different does not have one.

What do sections 14 to 17 of the BNS actually say?

The four sections fall into two pairs. Read them together in the bare Act and you will notice how closely they mirror each other.

• Section 14 (old IPC section 76): nothing is an offence if done by a person who is bound by law to do it, or who by reason of a mistake of fact, and not a mistake of law, in good faith believes himself bound by law to do it.
• Section 15 (old IPC section 77): nothing is an offence if done by a Judge when acting judicially in the exercise of any power given by law, or which he in good faith believes to be given by law.
• Section 16 (old IPC section 78): nothing done in pursuance of, or warranted by, a judgment or order of a Court is an offence while that judgment or order is in force, even if the Court had no jurisdiction, provided the person doing the act in good faith believes that the Court had jurisdiction.
• Section 17 (old IPC section 79): nothing is an offence if done by a person who is justified by law, or who by reason of a mistake of fact, and not a mistake of law, in good faith believes himself justified by law in doing it.

The BNS came into force on 1 July 2024, and these sections come with illustrations. Under section 14, a soldier who fires on a mob on the order of his superior officer, in conformity with the law, commits no offence, and an officer of court ordered to arrest Y who arrests Z after due enquiry, believing Z to be Y, commits no offence. Under section 17, A sees Z do what appears to be a murder and seizes Z to take him to the proper authorities. A commits no offence even if it later turns out that Z was acting in self defence.

What is the difference between "bound by law" and "justified by law"?

This is a favourite short answer question. A person is bound by law when the law commands the act and he has no choice, like the court officer executing a warrant. A person is justified by law when the law permits the act but does not compel it, like a private citizen who chooses to arrest someone he believes has just committed a serious crime. Section 14 covers duty. Section 17 covers permission. In both, the mistake that protects you must be about facts.

Why does a mistake of law not help?

Both sections say in plain words "and not by reason of a mistake of law". The reason is practical: if every accused could say "I did not know this was illegal", no criminal law could be enforced. So a shopkeeper in Nagercoil who wrongly thinks the law lets him detain a customer until a bill is paid gets no shelter from section 17, because his error is about what the law allows. By contrast, a watchman who stops a man walking out of a college hostel with a laptop, honestly and carefully believing the man is a thief, may be protected if it turns out the laptop was his own. The watchman's error is about a fact.

What does "good faith" demand?

Good faith is the heart of these defences, and it is defined in section 2(11) of the BNS: nothing is said to be done or believed in good faith which is done or believed without due care and attention. Honesty alone is not enough. You must also have been careful.

The Supreme Court explained this in State of Orissa v. Bhagaban Barik (1987), decided on 2 April 1987 by Justices A.P. Sen and V. Balakrishna Eradi. The accused had caused a death and pleaded mistake of fact, and the High Court had acquitted him under section 79 IPC. The Supreme Court reversed the acquittal and convicted him of culpable homicide not amounting to murder, finding a complete absence of good faith. It said that good faith "requires not logical infallibility but due care and attention", and that whether a person acted in good faith is always a question of fact decided on the proved circumstances of each case. The Court relied on Russell on Crime to explain the idea of a mistake of fact: a person unaware of, or mistaken about, the relevant facts may cause harm he did not intend or foresee. He was sentenced to three years' rigorous imprisonment under section 304 Part II IPC.

How did the Supreme Court use section 79 in Raj Kapoor v. Laxman?

In Raj Kapoor v. Laxman (1980), decided on 14 December 1979 and reported as (1980) 2 SCC 175, a private complaint charged the producer of a film with obscenity under section 292 IPC. The film had been certified for public exhibition by the Board of Censors under the Cinematograph Act. Justice Krishna Iyer, writing for the Bench with Justice Pathak, held that section 79 was "exculpatory" when read with section 5A of the Cinematograph Act, 1952, and quashed the prosecution. The certificate either justified the exhibition in law or, at the least, gave the producer a bona fide belief that it did. The lesson for students: section 17 BNS can protect a person who acts on the strength of a valid permission granted under a special law, and if the authority that granted it blundered, the remedy lies against that decision under the special law.

How far does the protection for Judges go?

Section 15 protects a Judge only "when acting judicially", meaning while deciding a matter in the exercise of a power the law gives, or which the Judge in good faith believes it gives. It does not cover acts outside the judicial function. A magistrate who takes a bribe is not acting judicially when he takes it.

Parliament added a further layer in the Judges (Protection) Act, 1985 (Act 59 of 1985). Section 3(1) says no court shall entertain or continue any civil or criminal proceeding against a person who is or was a Judge for any act, thing or word done or spoken by him while acting, or purporting to act, in the discharge of his official or judicial duty or function. Section 3(2) keeps open the power of the Central Government, State Governments, the Supreme Court, High Courts and other authorities to take civil, criminal, departmental or other action against such a person. The word "Judge" in section 2 is wide enough to include anyone the law authorises to give a definitive judgment in a legal proceeding.

Section 16 BNS extends a similar shelter to those who carry out a court order, such as a bailiff executing a decree in Madurai. Even if the court later turns out to have lacked jurisdiction, the bailiff commits no offence while the order is in force, so long as he believed in good faith that the court had jurisdiction.

How should you write this in an exam?

1. Start with the principle: no criminal liability without a guilty mind, and Chapter III of the BNS lists general exceptions.
2. Quote the operative words of the relevant section with its BNS number, and mention the IPC number once in brackets.
3. Explain "bound" versus "justified", and fact versus law, with one illustration from the Act.
4. Define good faith using section 2(11) and cite Bhagaban Barik (1987).
5. Apply Raj Kapoor v. Laxman (1980) for section 17 and the Judges (Protection) Act, 1985 for judicial acts.
6. Solve the problem: identify the mistake, ask whether it was of fact, and ask whether the accused took due care.

Students who want practice applying these defences to real situations can see how they come up in the work of the college legal aid clinic.

Sources

• India Code: The Bharatiya Nyaya Sanhita, 2023: official record of Act 45 of 2023, in force from 1 July 2024.
• BNS Chapter III, General Exceptions (devgan.in): text of sections 14 to 17 with illustrations and IPC equivalents.
• India Code: The Judges (Protection) Act, 1985: official text of Act 59 of 1985.
• State of Orissa v. Bhagaban Barik (1987): Supreme Court judgment on good faith and section 79 IPC.
• Raj Kapoor v. Laxman (1980): Supreme Court judgment applying section 79 IPC to a censor certificate.