Prepared by Asisst. Professor Rekha Khandelwal
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Cases relating to sec 76
R. v. Tolson, ( 1889) 23 Q.B.D. 168,
In this case the accused was convicted of bigamy. She had gone through the ceremony of marriage within seven years after she had been deserted by her husband. She believed in good faith and on reasonable grounds that her husband was dead. It was held that a bona fide beliefs on reasonable grounds in the death of the husband at the time of the second marriage afforded a good defence to the charge of bigamy.
R.v. Princes,(1857) L.R. 2 CCR 154,
In this case the accused was charged of unlawful taking an unmarried girl under the age of 16 years out of possession and against the will of her father. It was found that the accused bona fide and reasonably believed the girl to be older than 16 years. The accused’s mistaken belief about the age of the girl was held not to be a good defence to an incitement for kidnapping because he intended to do and did a wrongful or Immoral act and not an innocent act
Latif Khan V state, (1895) 20 Bom 394; Gurdit Singh, (1883) PR No. 16 of 1883
For illegal acts, however, neither the orders of a parent nor a master nor a superior will furnish any defence. Nothing but fear of instant death is a defence for a policeman Who tortures anyone by order of a superior. The maximum respondeat Superior has no application to such a case.
State of WB v Shew Mangal Singh, 1981 CrLJ 1683: AIR 1981 SC
If superior order is in conformity with the law no further question arises and the subordinate officer is protected by section 76 IPC, 1860 if he carries out that order. If is only when the order is not in accordance with the law but the subordinate officer who carries out that order in good faith, on account of a mistake of fact and not on ground of mistake of law, believes himself to be bound by law to carry out such an order, that a further question arises as to whether the subordinate officer will not still get protection of section 76 IPC, 1860 because of his mistake of fact.
Thus, where the order was legal in the circumstances of the case,
For an example, where the police petrol party opened fire under the Order of the Deputy Commissioner of Police after it had been attacked on a dark night and an assistant commissioner of police had been injured as a result of such attack, really no question arose for the application of section 76 IP, 1860, as the order was both legal and justified by the circumstances of the case.
Shew Mangal Singh, 1981 CrLJ 1683: AIR 1981 SC
The Indian law as contained in section 76 and 79 of The Indian Penal Code appears to be the same as in England. This point has, however, not been clearly decided in any case including the decision of the Supreme Court in Shew Mangal Singh’s case.
Chaman Lal, (1940) 21 Lah 521
There are, however, enough indications in Shew Mangal Singh’s case and in sections 76 and 79 IPC, 1860, that if the subordinate due to a mistake of fact and not due to a mistake of law honestly believed that he was bound or justified by law in carrying out the superior order which though not manifestly illegal was nevertheless illegal, perhaps he would still get the benefit of Superior order. Obedience to an illegal order can only be used in mitigation of punishment but cannot be used as a complete defence.
A K Chaudhary v State of Gujrat, 2006 CrLJ 726 ( Guj.)
If, the employee has committed suicide on account of any abnormal reaction, the conduct of the complainant or of higher officer of taking departmental action by way of resorting to legal remedy or enforcement of law, cannot be termed as leaving no option to the delinquent employee but to commit suicide and therefore, cannot be said as abatement or incitement to suicide under such circumstances. In any case any action for resorting to legal remedy for grievances or for enforcement of law in exercise of powers or purported exercise of power cannot be said to contain any element of criminality unless such action is ex facie without any competent, authority or jurisdiction.
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