The circumstances attending the act which is the

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The distinction between these two sections is that in the former a person is assumed to be bound, and in the latter to be justified by law; under both these sections there must be a bona fide intention to advance the law, manifested by the circumstances attending the act which is the subject of charge. Under Sections 76 and 79 mistakes must be one of fact and not of law.

Mistake has a recognised place in civil law. As such it is a well-known concept. There it is used in the sense of misconception or error of judgment not intended to produce the result attained. Such a mistake may, or may not, be due to forgetfulness, ignorance, imperfect information, or faulty ratiocination. It may be due to chance, negligence, stupidity or even superstition, but it must not be due to design, pre-arrangement or pre-concert. A mistake may be due to the imperfection of sense, or it may be due to the deficiency of intellect.

At common law an honest and reasonable belief in the existence of facts, which, if true, would make the act for which the prisoner is indicted, an innocent act has always been held a good defence. Honest and reasonable mistake of fact stands in fact on the same footing as absence of the reasoning faculty, as infancy, or perversion of that faculty in lunacy—(R. v. Tolson). In respect of every offence a state of mind is necessary in common law in committing an act that is an offence and if this state of mind is absent for any reason as by a mistake of fact, then the act that is done is not an offence. The act of the accused in Tolson’s case was looked at from the point of view of mistake of fact that operated on her mind as she entered into matrimony with her second husband. If the facts were, as she in good faith believed them to be so at the time of her second marriage, then she was certainly a widow for at least six years that is from the date of her first husband’s alleged death in ship wreck.

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Her second marriage was thus not bigamy. She had not disobeyed any prohibition of law. On the other hand in Prince’s case, the position was that the accused did not intend to take the girl away from the possession of her father. The girl’s age about which he made a mistake, which was a mistake of fact was not part of the act prohibited by the statute in question. The statute prohibited only the taking and this taking was deliberate violation of the terms of the statute.

A mistake in the understanding as to the state of things relating to the age of the girl was not germane to the question under consideration whether he was guilty of the offence of kidnapping with which he was charged. The mistake on his part as to age of the girl did not prevent Prince from committing the prohibited act and he was, therefore, convicted. It may be laid down as a general rule that an alleged offender is deemed to have acted under that state of facts which he in good faith and on reasonable grounds believed to exist when he did the act alleged to be an offence. Ignorantia facit, both an excuse, for such an ignorance many times makes the act itself morally involuntarily. When a person made a thrust with a sword at a place where upon reasonable grounds, he supposed a burglar to be, and killed a person who was not a burglar, he was held to have committed no offence. It is to be noted that the mistake of fact must have been arrived at in good faith.

As laid down in Section 52 of the Penal Code, nothing is said to be done or believed in good faith which is done or believed without due care and attention. The question of good faith must be considered with reference to the position of the accused and the circumstances under which he acted. “Good-faith”, requires not logical infallibility but due care and attention. Good-faith will not avail the accused person if it is a case of voluntary and negligent ignorance of fact in the doing of the act. When an act was done either rashly or negligently tine doing of the act will be incompatible with good-faith. A police officer saw a horse in the possession of one B, resembling with that of his father’s horse that he had lost previously, B was compelled to account for his possession. The officer found that B had purchased it from one S.

He sent for S and charged him with the theft and compelled him to give bail whilst an investigation was pending. It was held that the ‘police officer had not acted in good-faith and his mistake was negligent and wilful’. Mistake of Law: Mistake of law ordinarily means mistake as to existence or otherwise of any law on a relevant subject as well as mistake as to what the law is. Of course, the term ‘law’ as used in this connection means the general law of the land. But the rule applies equally to all laws, bye-laws, rules and regulations having the force of law. Mistake in point of law in a criminal case is no defence. Ignorance of the municipal law of the kingdom, or of the penalty thereby, inflicted upon offenders, both are not any excuse, that is of the age of description and compose mentis, from the penalty of the breach of it, because every person of the age of discretion and compose mentis is bound to know the law, and presumed so to do.

The maxim ignorantia juris noil excusat in its application to criminal offences admits of no exception. Ignorance of law is no excuse either in the case of a native or that of a foreigner, although it may be a ground for mitigation of sentence. This rule is founded on sound policy, e.g.

, effective administration of justice. Had it been allowed to be pleaded as a defence, entire administration of justice would have come to a standstill and really all the culprits would have escaped from the punishment they deserved. It is well settled that ignorance of law will not excuse from the consequence of guilt any person who has a capacity to understand the law. Mistake of law, however, normally relates to mistake as to accused’s right under the law to do a particular act or pursue a particular course of conduct. The Courts are not at all concerned with the legality or otherwise, of the rights under which the accused purported to act.

The only question that the Courts have to decide in such cases is whether the claim of right was honestly and bona fide held by the accused. This question will essentially be one of fact. In such cases, it is the good-faith of the accused and not the right itself which requires adjudication. Ignorance of law cannot be the basis of acquittal of accused but may be helpful for the reduction of punishment if it is performed in good-faith. The I.P.

C. does not exempt an act done under a mistake of law from the operation of the penal law. Guiding rules when a question of mistake of fact or mistake of law arises: (i) When an act is in itself plainly, criminal, and is more severely punishable if certain circumstances co-exist, ignorance of the existence of such circumstances is no answer to a charge for the aggravated offence. (ii) Where an act is prima facie innocent and proper, unless certain circumstances co-exist, the ignorance of such circumstances is an answer to the charge. (iii) The state of defendant’s mind must amount to absolute ignorance of existence of the circumstances which alters the character of the act, or to a belief in its non-existence.

(iv) Where an act which is in itself wrong is under certain circumstances, criminal, a person who does wrong act cannot set up as a defence that he was ignorant of facts which turned the wrong into a crime. (v) Where a statute makes it penal to do an act under certain circumstances, it is a question upon the wording and object of the particular statute, whether the ‘responsibility of ascertaining that the circumstances exist, is thrown upon the person who does the act or not. In the former case his knowledge is immaterial’.

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