An Analysis of Section 81 of the Indian Penal Code: The Doctrine of Necessity

An Analysis of Section 81 of the Indian Penal Code: The Doctrine of Necessity

Introduction

The Indian Penal Code, 1860 (IPC), under Chapter IV titled "General Exceptions," enumerates circumstances wherein an act, which would otherwise constitute an offence, is excused from criminal liability. Among these, Section 81 of the IPC embodies the principle of necessity, often referred to as the doctrine of "lesser of two evils." This provision exonerates an individual who commits an act likely to cause harm, provided it is done without criminal intent and in good faith for the purpose of preventing or avoiding other, more significant harm to person or property. This article undertakes a comprehensive analysis of Section 81 IPC, examining its constituent elements, judicial interpretations drawn from relevant case law, and its distinction from other general exceptions.

The Statutory Provision: Section 81 of the Indian Penal Code, 1860

Section 81 of the Indian Penal Code reads as follows:

81. Act likely to cause harm, but done without criminal intent, and to prevent other harm.—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.

The illustrations appended to the original section in the IPC (though not provided in the reference materials) further clarify its application, such as a captain of a steam vessel justifiably running down a boat to avoid sinking a larger vessel with many passengers, or pulling down houses to prevent a conflagration from spreading.

Core Elements and Principles of Section 81 IPC

For an act to be excused under Section 81 IPC, several conditions must be met:

  • Knowledge of Likely Harm: The accused must be aware that their act is likely to cause harm. This distinguishes it from an accident under Section 80 IPC.
  • Absence of Criminal Intention: The act must be done without any criminal intention to cause the specific harm that results. The primary motive must not be malicious.
  • Good Faith: The act must be done in "good faith," which, as defined in Section 52 IPC, implies due care and attention.
  • Purpose of Preventing or Avoiding Other Harm: The dominant purpose of the act must be to prevent or avoid other harm to person or property.
  • Proportionality and Imminence (as per Explanation): The harm sought to be prevented must be of such a nature and so imminent as to justify or excuse the risk of causing the lesser harm. This involves a crucial balancing act, often determined as a question of fact.

Judicial Interpretation and Application of Section 81 IPC

The application and interpretation of Section 81 IPC have been elucidated through various judicial pronouncements. The provided reference materials offer several instances where this section has been invoked or discussed, highlighting its practical relevance.

Early Judicial Considerations

An early acknowledgment of the potential applicability of Section 81 IPC can be found in the Full Bench decision of the Madras High Court in Gopal Naidu And Another (Accused 1 And 2), v. King-Emperor (1922 SCC ONLINE MAD 311). While primarily discussing the applicability of English Common Law regarding arrest and wrongful confinement, Phillips, J., and Wallace, J., in their concurring opinions, suggested that Section 81 IPC might be considered in situations where interference with a person's liberty was aimed at preventing a greater harm, such as a breach of peace by a drunk and disorderly individual. Wallace, J. stated, "I agree with the judgment of the learned Chief Justice and would also with my learned brothers, call in aid Section 81 of the Indian Penal Code." This indicates an early judicial recognition of the section's role in justifying acts done to avert greater perils.

Application in Cases of Avoiding Greater Harm

The core principle of choosing the lesser of two evils is central to Section 81 IPC. The Andhra Pradesh High Court's decision in Jilukara Sailu v. State (2015 ALD CRL AP 1 91) provides insight, albeit by distinguishing the facts before it. The court referenced a prior ruling, Kutcharlapati Krishnam Raju v. State of A.P. (2003 (2) ALD (Crl.) 241 (AP)), where an accused was acquitted by invoking the exception under Section 81 IPC. As noted in Jilukara Sailu, "In that case to avoid a major accident, the accused therein had committed a minor accident and by invoking exception under section 81 of ipc, this Court observed that there is error of judgment and applying it, the accused therein was acquitted." Although the plea under Section 81 IPC was not accepted in Jilukara Sailu due to lack of evidence supporting such a claim, the reference underscores the section's applicability where an act causing harm is committed to prevent a demonstrably larger and imminent harm.

The Element of Good Faith and Prevention of Harm in Professional Contexts

The Gujarat High Court, in SEJAL JIGARBHAI MEHTA v. STATE OF GUJARAT (Gujarat High Court, 2017), directly addressed Section 81 IPC in the context of actions taken by medical professionals. The court observed, "Similarly, Section 81, IPC states that 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." This highlights the protective ambit of Section 81 IPC for professionals who, in good faith, might undertake risky procedures or actions that could cause harm, but do so with the intention of averting a more serious threat to a patient's life or health. The emphasis on "good faith" and "preventing or avoiding other harm" is paramount in such scenarios.

Acknowledgement as a General Defence

The case of Bishambher v. Roomal (1950 SCC ONLINE ALL 250, Allahabad High Court) also lists Section 81 IPC among the general exceptions whose benefit was considered for the accused. While the court ultimately dismissed the revision based on the falsity of the complaint without a detailed exposition of Section 81 IPC, its inclusion signifies judicial acknowledgment of this section as a valid defence that can be raised by an accused.

Burden of Proof

As with other general exceptions under Chapter IV of the IPC, the burden of proving the existence of circumstances bringing the case within Section 81 IPC lies upon the accused. This principle is affirmed by the Supreme Court in Shankar Narayan Bhadolkar v. State Of Maharashtra (Supreme Court Of India, 2004), which, while discussing Section 80 IPC, noted that general exceptions are part of the definition of every offence, but "the burden to prove their existence lies on the accused." This is in line with Section 105 of the Indian Evidence Act, 1872.

Distinction from Other General Exceptions

Section 81 IPC must be distinguished from other general exceptions:

  • Section 79 (Act done by a person justified, or by mistake of fact believing himself justified, by law): Section 81 IPC presupposes knowledge that the act is likely to cause harm, whereas Section 79 IPC often involves a mistake of fact leading to a belief in the lawfulness or justification of the act.
  • Section 80 (Accident in doing a lawful act): An act under Section 81 IPC is a deliberate act, chosen to avert greater harm, despite knowing its potential to cause harm. In contrast, Section 80 IPC applies to acts done by accident or misfortune, without criminal intention or knowledge, during a lawful act performed in a lawful manner with proper care and caution.
  • Sections 96-106 (Right of Private Defence): The right of private defence is available against an unlawful aggression or an offence being committed by an aggressor. Section 81 IPC operates in situations where the harm is averted not necessarily from an aggressor but from an impending peril or circumstance, making it a choice between two evils, one of which may affect an innocent person or property.
  • Section 95 (Act causing slight harm): Section 81 IPC can involve causing significant harm, provided it is to prevent even greater harm. Section 95 IPC, embodying the maxim de minimis non curat lex, excuses acts causing harm so slight that no person of ordinary sense and temper would complain.

Addressing Irrelevant References in Provided Materials

It is pertinent to note that a significant number of the provided reference materials, while containing the numeral "81," do not pertain to Section 81 of the Indian Penal Code. These references are either to different statutes or are case/crime identifiers and are therefore not germane to the direct analysis of Section 81 IPC.

For instance:

Similarly, other provided materials such as Lakshmi Industries (Private) Ltd. v. Commissioner Of Income-Tax, Madras (1960 SCC ONLINE MAD 333) (Income Tax Act), RANGAPPA JAVOOR S/O KARIYAPPA v. STATE BY KARNATAKA (Karnataka High Court, 2018) (Section 498-A IPC), State Of Orissa Complainant v. Ram Bahadur Thapa Accused (1959 SCC ONLINE ORI 22) (Section 79 IPC), Ganesh Pandurang Jadhao v. State Of Maharashtra (Bombay High Court, 2016) (Section 188 IPC), Lily Thomas v. Union Of India And Others (Supreme Court Of India, 2013) (various IPC sections in a different context), Sundar Singh v. State (Allahabad High Court, 1954) (Section 71 IPC), CHATRA v. STATE OF RAJASTHAN (Rajasthan High Court, 2023) (private defence), ROHIT KRISHNA v. STATE OF KERALA (Kerala High Court, 2023) (Section 95 IPC), Ashok Singh v. State Of Madhya Pradesh Through Police Station (Madhya Pradesh High Court, 2021) (Section 84 IPC), ASHISH KUMAR v. THE STATE OF JHARKHAND (Jharkhand High Court, 2023) (IPC v. special statutes), and A. Maharaja v. State Of Tamil Nadu (2008 SCC 17 173) (murder appeal) deal with distinct legal issues or other sections of the IPC and do not directly contribute to the specific interpretation or application of Section 81 IPC.

Conclusion

Section 81 of the Indian Penal Code serves as a critical general exception, codifying the doctrine of necessity. It acknowledges complex human situations where an individual might be compelled to cause a lesser harm to prevent a greater, more imminent harm to person or property. The conditions of acting without criminal intent, in good faith, and the crucial assessment of proportionality and imminence of the harm to be averted, are central to its application. Judicial interpretations, as seen in cases like Gopal Naidu, SEJAL JIGARBHAI MEHTA, and the principles discussed in relation to Jilukara Sailu, affirm its role as a defence that hinges significantly on the specific facts and circumstances of each case. The burden of proving the applicability of this section rests on the accused, underscoring the careful scrutiny required by courts when such a defence is raised. Section 81 IPC thus reflects a nuanced understanding of culpability, balancing the letter of the law with the exigencies of human action in critical situations.

References