Criminal Liability and Defence of Superior Orders Under the Indian Laws

Section 76 of Indian Penal Code says that nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it. This section can be divided into two parts. First nothing is an offence which is done by a person who is bound by law to do it. Second, nothing is an offence which is done by a person who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be bound by law to do it. It simply says that nothing is an offence if it is done by an individual who is bound by law to do it. An individual is bound by law to accomplish something when the law puts him under a commitment. Performing legitimate responsibility is not an offence.

Second part of the section deals with the defence of mistake of fact. Under this aspect nothing is an offence if it is done by an individual who because of mistake of fact and not by mistake of law in accordance with some basic honesty trusts that he is bound by law to do it. In other words (ignorance of fact is excusable) and (ignorance of law is not excusable) have been fused under this part.

The defence for exemption from criminal obligation on the ground of mistake of fact is based on principle that an individual who is mistaken about the existence of fact cannot frame the intention to comprise a wrongdoing and is, along these lines not responsible in law for his deeds. On the other hand, ignorance of law is not an excuse because then every accused individual would claim that he was not aware of the law and it would become impossible for the prosecution to build a case and prove that the accused was cognizant of the law. In such a situation justice delivery will become impossible.

Supreme Court clearly mentioned in one of the landmark case that carrying out the orders given by a superior authority in good faith believing it to be bound by law is a valid defence under section 76 of IPC. In the case of State of West Bengal vs Shrew Mangal Singh[1] where the facts were that patrolling police were attacked by the mob as a result they were ordered by the superior authority i.e., Deputy Commissioner of Police to open fire. As a result of that open firing by the patrol police, two persons were killed. It was evident that order given to his subordinate officer by the superior was under the commands of law, and therefore patrol police were bound to comply with the orders. Both the High Court and Supreme Court held that the situation warranted and justified the order to open fire and hence the accused got protection under section 76 of Indian Penal Code and was not held liable for murder.

In the case of Chaman Lal vs Emperor[2], the jail warders were mercilessly beating the prisoners which prompted the demise of two prisoners. The accused raised the plea that he was performing the order given by his superior authority. The court did not acknowledge this defence stating that the jail warders knew that they were engaged in illegal act question of good faith, mistake of law and mistake of fact does not arise. The court concluded that that being the jail warders they must have known the fact that mercilessly beating the prisoners was contrary to law and as a result they were held liable for murder.

In the case of Charan Das Narain Singh vs State[3], where information was received that few people were gambling in a tent. Superior officer and a soldier were sent to make an enquiry. After encompassing the tent soon after the sound of gun, deceased who was inside the tent was discovered dead. At the trial subordinate officer admitted that he had fired the shot and argued that he had done so in acquiescence to the request of his superior officer. It was held that the order issued by the predominant officer was completely unlawful and unjustified and subordinate officer was not bound to obey it. Since the subordinate officer was very young and was recruited recently and was having exaggeration notion to perform his duties, he was condemned to rigorous imprisonment of three years only and pardon was prescribed for him.

It is evident that the law does not anticipate that an individual should obey illicit orders of his superior. The circumstances may be sometime be very unhappy for him because when he complies with an illegal order, he might be subject to discipline under law, while in the event when he does not comply with the orders, he might be at risk under departmental action for not obeying is superior officer. Despite the fact that defence may fail, the circumstances of the case legitimize relief of punishment is one of the conclusion.

The criminal laws in India still does not perceive the doctrine of command responsibility, holding a superior officer liable for the wrongdoing carried out by his subordinate.  Rather laws in India do recognize the globally accepted principle of criminal law that a subordinate cannot escape criminal liability taking the request that he acted under guidance or orders of his superior authority, if the act instructed was unlawful or illicit.

[1] AIR 1987 SC 1917

[2] AIR 1940 LAH 210

[3] AIR 1950

This article is authored by Praharsh Verma, student of B.A. LL.B (Hons.) at Maharashtra National Law University, Mumbai

Also Read – Criminal Liability Under Infancy, Insanity And Intoxication

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