A person who is charged with an offence under IPC can seek protection from liability if he falls into any of the instances specified under S76 – S106. These are instances of general exceptions or defences. Herein we will be discussing Section 76 and Section 79 which concerns itself with exception related to Mistake of Fact. 

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It is to be noted that the court while determining a case will rely on non- existence of any circumstances that fall within the general exceptions under Chapter IV. It is upon the defence to prove that such a circumstance exists and thus he must be exempted from the liability. 

Section 76

Section 76 states - 

“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 as well as section 79 is mainly based on the two maxims-

1.   Ignorantia Facti Excusat which means that ignorance of fact is excusable. 
2.   Ignorantia juris non excusat which means ignorance of law is not excusable.  

The above provisions should be understood and analysed in respect of each of its element. The key elements being- 

• A Mistake of Fact
• Not a Mistake of Law
• Good Faith
• Bound by law

The provision can be analysed as follows- 

• A Mistake of fact
  

Mistake of Fact exists when a party misunderstands a crucial element in the circumstance he is in and as a direct or indirect result of such mistake he commits the alleged crime. Such a mistake of fact negates the crime. It should noted that mistake includes any error or misunderstanding or omission which in no way is intentional.  

The main reason as to why mistake of fact is a valid defence is because it negates the mensrea that the accused person must possess as to constitute a crime.  

In the landmark case of  R v Tolson, the accused wife was convicted of bigamy. It was held by the appeal court that as at the time of second marriage she bona fide believed her husband to be dead, her conviction was wrong. This is a illustrious of Mistake of Fact wherein she mistook herself, in good faith, to be unmarried.

• When mistake of fact is not a defence
  

The defence under section 76 can be good sometimes but becomes inapplicable in the circumstances that the act i.e., the fact done is itself illegal. For instance, if A kills B, he cannot plead the defence that, in reality, he intended to kill C and not B.  

• Not a mistake of law
  

Mistake that is concerned with existence or application of a law is mistake of law. Any criminal act arising out of mistake of law is, the wrong doer cannot claim the defence under this section. Defence or exception from criminal liability exists only when one the mistake is that of fact and not in case of mistake of law. 

• Good faith 

The term good faith has been defined in Section 52 of IPC as “Nothing is said to be done or believed in “good faith” which is done or believed without due care and attention.” Here, the act must be done with good intention and with the belief that the act is justified by law.  

• Bound by law
  

To seek protection from criminal liability, it is necessary that one acts in a manner in which he was bound to. So, for example, when a police man fires at a violent mob as per the orders of his superior, he is performing an act that he is bound to do. Thus, the defendant must be bound to do the act for which he is being prosecuted. 

Section 76 provides that it is not an offence if a person is bound by law to do an act or believes himself, in good faith, to be bound to do an act by reason of mistake of fact. The most important thing to be noted here is that mistake should be that of fact and not law. Mistake of law is inexcusable. This follows from the principle that ignorance of law is not an excuse and thus, persons are assumed to take due care and diligence to know the law of land. 

So, for example, if a policeman, instructed by his superior to open gunfire at violent mob, ends up causing harm or killing someone, such inferior policeman shall not be held liable. The reason being that he has acted in pursuance of the order of his superior, that is, he did something which he was bound to do under law. 

Further, it is to be noted that the it is not that the person should follow anything and everything instructed by his superior blindly. He is expected to exercise a due diligence as to in what circumstances is he taking the action. So, for example, if in the above example, the policeman under the instruction of his superior causes harm or kills anyone in the mob while the mob was non-violent, this exception shall not apply.

Section 79

“Nothing is an offence which is done by any person who is justified by law, 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 justified by law, in doing it.”

Under S. 79, the exception from conviction is available if a person does an act which is he is justified to do under law or due to mistake of fact, he believes, in good faith, himself to be justified under law. 

The distinction between section 76 and section 79 is that the former presupposes existence of an obligation whereas the latter requires a mere justification by law. In Section 76, the person must be legally bound to do the act. And in latter, the person is not bound but is justified by law.

Here, for example, if A sees B in a circumstance what appears to him as B committing murder. A seizes B and hands him over to the appropriate authority. In these circumstances, B being justified by law in his act shall be relieved from liability if it is found that B was acting in self-defence.  

This provision is most useful for Acts of State that i.e., such acts causes harm to any person or property but since such acts are authorised or ratified by State, it shall not be punishable. In simple words, people authorised by state carrying on any activity which either authorised or ratified by State will be protected as if they were carrying out an lawful act. 

However, two requisites are to be met- 

1. The accused must be authorised by the state. 
2. The matter must be outside the purview of right in law. 

Distinction between S.76 and S.79

The distinction between section 76 and section 79 is that the former presupposes existence of an obligation whereas the latter requires a mere justification by law. In Section 76, the person must be legally bound to do the act. And in latter, the person is not bound but is justified by law.