A2.
First let understand the difference between a mistake of law and a mistake of fact.
‘Ignorantia facti excusat ignorantia juris non excusat’ is a well-recognized Latin maxim
which states that mistake ignorance of fact is a defense which can be used, whereas ignorance
or mistake of law cannot be excused. The Indian Penal Code, 1860 (IPC) also refers to this
principle vide Section 76 and Section 79, wherein it excuses a person who by mistake of fact,
and not by mistake of law, considers himself bound or justified to commit that offence.
However, the question arises whether mistakes of civil law and of criminal law have the same
non-consequence.
Although the answer in the statutes in India does not resolve this question, the judiciary has
given the answer in the case of Pappu vs Damodaran in 1967, wherein it was held that a
claim or right as to ownership or possession of property, which stems from a mistake of fact
or law or both, can lead to a valid defense in exceptional cases.
We first establish the premise that an important ingredient in any crime is mens rea or the
mental conviction to do a wrongful act, which is transformed into an actus reus or physical
act, resulting in a crime. However, the subjective mens rea depends upon an evil thought
process in the mind of the perpetrator and presupposes existence of the intention to inflict
pain and suffering without a valid reason. However, mistakes of fact may lead a person to
believe that he has a claim or right, for the protection of which he may exercise reasonable
measures. Therefore, when the person exercises such reasonable measures, even by
committing an offence, he does so in the bona fide belief that what he is doing is an extension
of his claim of right. Therefore, mistake of fact negatives mens rea or balances it out. J.
Matthew then posed a leading question as to whether such a logic will be vitiated only if the
mistake relates to law. Clearly, whatever the mistake may be, if mens rea is negated, then an
essential element of crime is not fulfilled. Rather than as a defense, this mistake would lead to
a weak case of the prosecution, as it won’t be able to establish the existence of an intentional
crime beyond reasonable doubt.
J. Mathew takes into account the eventuality where a person, by reason of mistake of law,
was misled into thinking that the law favored his acts, and he was justified in committing
such offence.
This turns the tide in favor of a more lenient understanding of being excused under a mistake
of law. Evidently, the necessary intention or mens rea required to commit the offence as an
intentional wrong is not being met in the instant case due to the bona fide in the minds of the
perpetrator. This relieves him from liability. However, the controversial problem remains,
what is the difference between a mistake of civil law and mistake of criminal law. J. Mathew
provides:
A person who puts forward a claim of right founded on mistake or ignorance of civil law
pertaining to the matter need not necessarily establish that the mistake or ignorance arose in
spite of reasonable diligence. The only thing necessary is that the mistake must be one which
leads the accused to claim that he has a right to act as he does. A mistake as to criminal law
only will not give rise to a claim of right; an error as to civil law may do so.
Therefore, the court makes a distinction between mistake of criminal law and mistake of civil
law in the sense that there would not arise a claim or right in criminal law as it may, by
Page 1 of 3
exception, arise in civil law. No person is accorded a claim of right to commit an offence as a
rule, though it may be justified in some cases. J. Mathew is able to accommodate his logic of
an incomplete mens rea vide a claim of right even while distinguishing between civil and
criminal law, as he preliminarily dismisses an existence of claim of rights vide a mistake of
criminal law.
In conclusion, what must be highlighted is the fact that such a bona fide belief in the mind of
the perpetrator is an exceptional situation.
Treatment of such mistakes under the IPC as compared to common law
There are two sections of the Indian Penal Code which deal with the issue at hand. Section 76
and 79.
Under Section 76 of the IPC, a mistake based on fact, and not one on law, is excused as a
defense when the perpetrator erroneously deems himself to be bound by law to commit such
an offence, when in fact, he wasn’t bound so. Bound here implies a duty and not a voluntary
fancy, but the conviction that it is in the legal duty of the perpetrator to commit said offence.
Under Section 79 of the IPC, a mistake of fact, and not one of law, is excused if the person
erroneously believes himself to be justified by the law to commit such an offence. As
opposed to duty, this justification indicates that the person voluntary undertook an act which
he thought to be legal and justifiable but was not. Section 79 also covers for those cases
where the person is indeed justified and excuses those persons to, however that part is
irrelevant to the instant question.
However, Section 76 and Section 79 do not provide for any difference in treatment for
mistakes on civil and criminal law, as they fail to make a sub-classification in mistake of law.
Under common law however, a similar position to Pappu vs Damodaran is taken, and a
difference is recognized.
However, on addressing the moot question – mistake of civil law vs mistake of criminal law,
the Court held that – “ignorance of the criminal law is no excuse for an act done in violation
of it. But, when a question arises whether a person has a claim of right, ignorance or mistake
of the civil law governing the matter would become relevant and assume importance as
negating mens rea.”
Again, as in Pappu vs Damodaran, the Court completely disregards mistake of criminal law
as a valid defence, as the claim of right itself never materializes in that case, and even in
common law, mistakes of civil law, as an exception to the rule of mistake of law, are allowed
as they negate the mens rea.
In Regina vs Boden as well, common law provides that as long as there is a belief in the
legal right, to the absurdity that a person may feel obligated to exact debt from the children of
the debtor of their friend’s father, even in such unreasonable claims (or unreasonable beliefs
as in Wilson vs Inyang) may be valid if there is a valid belief in the mind of the perpetrator.
As we observe, herein too the claim arises out of mistake of fact and/or mistake of civil law
and is therefore valid.
Page 2 of 3
Again, in Throne vs Motor Trade Association, Lord Atkin held that there should be a
genuine belief in the existence of facts apart from law, which if existed, would constitute an
actual defense. Therefore, Lord Atkin took it a step further to hold that had those presumed
facts existed, they should constitute a valid defense. Again, the thrust is on mistake of fact,
and not on mistake of criminal law.
CONCLUSION
To conclude, it can be observed that out of the general rule of not entertaining defenses under
any mistake of law, both the Indian and common law judiciary have taken a more lenient
view that the statutory rule in India and have distinguished between the exceptional
applicability of mistake of civil law as a defense and an absolute bar on applicability of
mistake of criminal law as a defense.
It is, therefore, clear that it is a well-established principle in criminal law that ignorance of
law is not a defence. Sections 76 and 79 of the IPC, however, do not delve into such
distinction between mistakes in criminal law and civil law and hold only mistake of fact to be
a valid defence for criminal liability
Page 3 of 3
