SAMPLE CHAPTER
Act of a person incapable of judgment by reason of intoxication caused against his will.
23. Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or against his will.
COMMENTS
COMPARATIVE STUDY OF PROVISIONS OF BNS, 2023 & IPC
23.1 Corresponding provisions
Section 23 of BNS corresponds to section 85 of IPC
The word “unless” has been used instead of “provided” which was used in section 85 of IPC. This distorts the sense of the provision. The word “unless” be read as “provided”
RELEVANT EXTRACTS FROM THE 246TH REPORT OF THE PARLIAMENTARY STANDING COMMITTEE ON HOME AFFAIRS
23.2 Observations/Recommendations
Para 23.7 of the Report reads as under:
“3.7.1 The Committee notes a minor correction and recommends that the word ‘unless’ may be replaced with the word ‘provided’. This change will make sure that the onus is on the accused to prove that he/she was intoxicated.”
The above recommendation of the Standing Committee was duly accepted and word ‘unless’ in the Bill was replaced with the word ‘provided’.
SECTION ANALYSIS
23.3 Act of a drunken person
Section 23 provides that nothing is an offence which is done by a person who, — at the time of doing it, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law; and he was intoxicated without his knowledge or against his will (as the thing that intoxicated him was administered without his knowledge or against his will),
The following points are noteworthy:
This section should be read with section 24 of BNS
It is no defence for an accused that he was in intoxicated state at the time of committing the alleged act, unless he proves that the intoxication was without his knowledge or against his will.
Accused who pleads that he was intoxicated at the time he committed the alleged offence will have to prove that he did not voluntarily get intoxicated and that he was intoxicated against his will or without his knowledge.
This defence of “intoxicated without knowledge or against will at the time of committing alleged act” is available only where act done is an offence only if done with particular intent or knowledge. Where act complained of is an offence regardless of intent or knowledge and involves strict liability, this defence cannot be put forth.
23.4 Burden of proving that the case of the accused comes within general exception in section 23
The burden of proving that the case of the accused comes within the general exception in section 23 of BNS, is upon the accused [Section 108 of Bharatiya Sakshya Adhiniyam, 2023] (See Para 14.2-1)
LANDMARK RULINGS
23.5 Acccused must prove that intoxication was against his will and/or thing which intoxicated him was administered to him without his knowledge - Section 85 of IPC deals with act of a person incapable of judgment by reason of intoxication caused against his will. As the heading of the provision itself shows, intoxication must have been against his will and/or the thing which intoxicated him was administered to him without his knowledge. The defence of drunkenness can be availed of only when intoxication produces such a condition as the accused loses the requisite intention for the offence. The onus of proof about reason of intoxication due to which the accused had become incapable of having particular knowledge in forming the particular intention is on the accused. [Paras 36 and 37] - Bablu Alias Mubarik Hussain v. State of Rajasthan AIR 2007 SC 697.
Offence requiring a particular intent or knowledge committed by one who is intoxicated.
24. In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will.
COMMENTS
COMPARATIVE STUDY OF PROVISIONS OF BNS, 2023 & IPC
24.1 Corresponding provisions
Section 24 of BNS corresponds to section 86 of IPC
SECTION ANALYSIS
24.2 Act of drunken person
In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated.
Unless the thing which intoxicated him was administrated to him without or against his will
The following points emerge from section 24 :
The defence of “intoxicated without knowledge or against will at the time of committing alleged act” is not available where the act complained of is an offence on strict liability basis regardless of intent or knowledge
This defence is available to the accused only where the act done is an offence only if done with particular intent or knowledge.
To avail this defence, it is not suf cient for accused to only prove that he was intoxicated at the time of committing the offence. He will also have to prove that the intoxication was without his knowledge or against his will.
Accused who pleads that he was intoxicated at the time he committed the alleged offence will have to prove that he did not voluntarily get intoxicated and that he was intoxicated against his will or without his knowledge.
24.2-1 Burden of proving that the case of the accused comes within general exception in section 24 [Section 108 of BSA]
The burden of proving that the case of the accused comes within the general exception in section 24 of BNS, is upon the accused [Section 108 of Bharatiya Sakshya Adhiniyam, 2023] (See Para 14.2-1)
Act not intended and not known to be likely to cause death or grievous hurt, done by consent.
25. Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm.
Illustration
A and Z agree to fence with each other for amusement. This agreement implies the consent of each to suffer any harm which, in the course of such fencing, may be caused without foul play; and if A, while playing fairly, hurts Z, A commits no offence.
COMMENTS
COMPARATIVE STUDY OF PROVISIONS OF BNS, 2023 & IPC
25.1 Corresponding provisions
Section 25 of BNS corresponds to section 87 of IPC
SECTION ANALYSIS
25.2 Act not intended to cause death/hurt
Section 25 provides that nothing which is done is an offence if following conditions are satis ed:—
The act is not intended to cause death, or grievous hurt, and is not known by the doer to be likely to cause death or grievous hurt, The other person to whom harm is caused is above eighteen years of age, The other person who suffers harm has given consent, whether express or implied, to suffer that harm.
If above conditions are satis ed, act done will not be offence — by reason of any harm which it may cause, or be intended by the doer to cause, to any person, or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm,
Illustration
A and Z agree to fence with each other for amusement. This agreement implies the consent of each to suffer any harm which, in the course of such fencing, may be caused without foul play; and if A, while playing fairly, hurts Z, A commits no offence.
25.3 Exclusion of acts which are offences independently of harm caused [Section 29 of BNS]
The exceptions in sections 25, 26 and 27 do not extend to acts which are offences independently of any harm which they may cause, or be intended to cause, or be known to be likely to cause, to the person giving the consent, or on whose behalf the consent is given.
25.4 Burden of proving that the case of the accused comes within general exception in section 25
The burden of proving that the case of the accused comes within the general exception in section 25 of BNS, is upon the accused [Section 108 of Bharatiya Sakshya Adhiniyam, 2023] (See Para 14.2-1)
Act not intended to cause death, done by consent in good faith for person’s bene t.
26. Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose bene t it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.
Illustration
A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under the painful complaint, but not intending to cause Z’s death, and intending, in good faith, Z’s bene t, performs that operation on Z, with Z’s consent. A has committed no offence.
COMMENTS
COMPARATIVE STUDY OF PROVISIONS OF BNS, 2023 & IPC
26.1 Corresponding provisions
Section 26 of BNS corresponds to section 88 of IPC
SECTION ANALYSIS
26.2 Act done in good faith for person benefit
Section 26 provides that nothing which is done by any doer is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person, if the following conditions are satis ed:—
The act done is not intended to cause death, It is done in good faith, It is done for the bene t of the other person,
The other person has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.
26.2-1 Meaning of ‘Bene t’ - Mere pecuniary bene t is not bene t. (See Explanation of section 30)
Explanation below section 30 states that “Mere pecuniary bene t is not bene t within the meaning of sections 26, 27 and 30.”
26.2-2 Illustration
A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under the painful complaint, but not intending to cause Z’s death, and intending, in good faith, Z’s bene t, performs that operation on Z, with Z’s consent. A has committed no offence.
26.3 Exclusion of acts which are offences independently of harm caused
The exceptions in sections 25, 26 and 30 do not extend to acts which are offences independently of any harm which they may cause, or be intended to cause, or be known to be likely to cause, to the person giving the consent, or on whose behalf the consent is given. (See section 29 of BNS)
26.4 Burden of proving that the case of the accused comes within general exception in section 26
The burden of proving that the case of the accused comes within the general exception in section 26 of BNS, is upon the accused [Section 108 of Bharatiya Sakshya Adhiniyam, 2023] (See Para 14.2-1)
Act done in good faith for bene t of child or person of unsound mind, by, or by consent of guardian.
27. Nothing which is done in good faith for the bene t of a person under twelve years of age, or person of unsound mind, by or by consent, either express or implied, of the guardian or other person having lawful charge of that person, is an offence by reason of any harm which it may cause, or be intended by the doer to cause or be known by the doer to be likely to cause to that person: Provided that this exception shall not extend to––
(a) the intentional causing of death, or to the attempting to cause death;
(b) the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or in rmity;
CH. III : GENERAL EXCEPTIONS
(
c) the voluntary causing of grievous hurt, or to the attempting to cause grievous hurt, unless it be for the purpose of preventing death or grievous hurt, or the curing of any grievous disease or in rmity;
(d) the abetment of any offence, to the committing of which offence it would not extend.
Illustration
A, in good faith, for his child’s bene t without his child’s consent, has his child cut for the stone by a surgeon knowing it to be likely that the operation will cause the child’s death, but not intending to cause the child’s death. A is within the exception, in as much as his object was the cure of the child.
COMMENTS
COMPARATIVE STUDY OF PROVISIONS OF BNS, 2023 & IPC
27.1 Corresponding provisions
Section 27 of BNS corresponds to section 89 of IPC SECTION ANALYSIS
27.2 Act done in good faith of bene t of child/person of unsound mind
Section 27 provides that nothing which is done is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to another person, if the following conditions are satis ed:—
It is done in good faith,
It is done for the bene t of a person under twelve years of age, or of person of unsound mind,
It is done by or by consent, either express or implied, of the guardian or other person having lawful charge of that person.
27.2-1 Meaning of ‘Bene t’
Mere pecuniary bene t is not bene t. [See Explanation to section 30]
Illustration. A, in good faith, for his child’s bene t without his child’s consent, has his child cut for the stone by a surgeon knowing it to be likely that the operation will cause the child’s death, but not intending to cause the child’s death. A is within the exception, inasmuch as his object was the cure of the child.
27.2-2 Non-applicability of exception under section 27
This exception in section 27 shall not extend to––
(a) the intentional causing of death, or to the attempting to cause death;
(b) the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or in rmity;
(c) the voluntary causing of grievous hurt, or to the attempting to cause grievous hurt, unless it be for the purpose of preventing death or grievous hurt, or the curing of any grievous disease or in rmity;
(d) the abetment of any offence, to the committing of which offence it would not extend.
BHARATIYA NYAYA SANHITA, 2023 100
27.2-3 Exclusion of acts which are offences independently of harm caused. [Section 29 of BNS]
The exceptions in sections 25, 26 and 27 do not extend to acts which are offences independently of any harm which they may cause, or be intended to cause, or be known to be likely to cause, to the person giving the consent, or on whose behalf the consent is given.
27.2-4 Burden of proving that the case of the accused comes within general exception in section 27
The burden of proving that the case of the accused comes within the general exception in section 27 of BNS, is upon the accused [Section 108 of Bharatiya Sakshya Adhiniyam, 2023] (See Para 14.2-1)
Consent known to be given under fear or misconception.
28. A consent is not such a consent as is intended by any section of this Sanhita,––
(
a) if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or
(b) if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or
(c) unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.
COMMENTS
COMPARATIVE STUDY OF PROVISIONS OF BNS, 2023 & IPC
28.1 Corresponding provisions
Section 28 of BNS corresponds to section 90 of IPC.
SECTION ANALYSIS
28.2 Consent given in fear
Section 28 provides that a consent is not such a consent as is intended by any section of this Sanhita,––
(a) if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or
(b) if the consent is given by a person who, from unsoundness mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or
(c) unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.
28.3 Burden of proving that the case of the accused comes within general exception in section 28
The burden of proving that the case of the accused comes within the general exception in section 28 of BNS, is upon the accused [Section 108 of Bharatiya Sakshya Adhiniyam, 2023] (See Para 14.2-1)
LANDMARK RULINGS
28.4 Grounds of fear of injury and misconception of fact are analogous to coercion and mistake of fact, respectively which are familiar grounds that can vitiate a transaction under jurisprudence - Consent given rstly under fear of injury and secondly under a misconception of fact is not ‘consent’ at all. That is what is enjoined by the rst part of section 90 of IPC. These two grounds speci ed in section 90 are analogous to coercion and mistake of fact which are the familiar grounds that can vitiate a transaction under the jurisprudence of our country as well as other countries. The Court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the Court should also be satis ed that the person doing the act, i.e., the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. [Paras 19 and 20] - Deelip Singh Alias Dilip Kumar v. State of Bihar AIR 2005 SC 203.
Exclusion of acts which are offences independently of harm caused.
29. The exceptions in sections 25, 26 and 27 do not extend to acts which are offences independently of any harm which they may cause, or be intended to cause, or be known to be likely to cause, to the person giving the consent, or on whose behalf the consent is given.
Illustration
Causing miscarriage (unless caused in good faith for the purpose of saving the life of the woman) is an offence independently of any harm which it may cause or be intended to cause to the woman. Therefore, it is not an offence “by reason of such harm”; and the consent of the woman or of her guardian to the causing of such miscarriage does not justify the act.
COMMENTS
COMPARATIVE STUDY OF PROVISIONS OF BNS, 2023 & IPC
29.1 Corresponding provisions
Section 29 of BNS corresponds to section 91 of IPC.
SECTION ANALYSIS
29.2 Non-application of exceptions in sections 25 to 27
Section 29 provides that the exceptions in sections 25, 26 and 27 do not extend to acts which are offences independently of any harm which they may cause, or be intended to cause, to the person giving the consent, or on whose behalf the consent is given.
29.2-1 Illustration
BHARATIYA NYAYA SANHITA, 2023 102
Causing miscarriage (unless caused in good faith for the purpose of saving the life of the woman) is offence independently of any harm which it may cause or be intended to cause to the woman. Therefore, it is not an offence “by reason of such harm”; and the consent of the woman or of her guardian to the causing of such miscarriage does not justify the act.
29.3 Burden of proving that the case of the accused comes within general exception in section 29
The burden of proving that the case of the accused comes within the general exception in section 29 of BNS, is upon the accused [Section 108 of Bharatiya Sakshya Adhiniyam, 2023] (See Para 14.2-1)
Act done in good faith for bene t of a person without consent.
30. Nothing is an offence by reason of any harm which it may cause to a person for whose bene t it is done in good faith, even without that person’s consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with bene t:
Provided that this exception shall not extend to––
(
(
a) the intentional causing of death, or the attempting to cause death;
b) the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or in rmity;
(
c) the voluntary causing of hurt, or to the attempting to cause hurt, for any purpose other than the preventing of death or hurt;
(
d) the abetment of any offence, to the committing of which offence it would not extend.
Illustrations
(1) Z is thrown from his horse, and is insensible. A, a surgeon, nds that Z requires to be trepanned. A, not intending Z’s death, but in good faith, for Z’s bene t, performs the trepan before Z recovers his power of judging for himself. A has committed no offence.
(2) Z is carried off by a tiger. A res at the tiger knowing it to be likely that the shot may kill Z, but not intending to kill Z, and in good faith intending Z’s bene t. A’s bullet gives Z a mortal wound. A has committed no offence.
(3) A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is no time to apply to the child’s guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the child’s bene t. A has committed no offence.
(4) A is in a house which is on re, with Z, a child. People below hold out a blanket. A drops the child from the house top, knowing it to be likely that the fall may kill the child, but not intending to kill the child, and intending, in good faith, the child’s bene t. Here, even if the child is killed by the fall, A has committed no offence.
