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Section 85-89 ipc

The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the traffic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread.

Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now a single grave infraction that is thought to call for uniformly drastic measures. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.

Section 85 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 he intoxicated was administered to him without his knowledge. There is no specific plea taken in the present case about intoxicant having administered without appellant's knowledge. The expression "without his knowledge" simply means an ignorance of the fact that what is being administered to him is or contains or is mixed with an intoxicant. 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.

Supreme Court of India

Bablu @ Mubarik Hussain à ... vs State Of Rajasthan à Respondent on 12 December, 2006

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. Basically, three propositions as regards the scope and ambit of Section 85 IPC are as follows:

(i) The insanity whether produced by drunkenness or otherwise is a defence to the crime charged;

(ii) Evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into account with the other facts proved in order to determine whether or not he had this intent; and

(iii) The evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime and merely establishing that his mind is affected by drink so that he more readily give to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts.

Section 86

"Drunkenness is ordinarily neither a defence nor excuse for crime, and where it is available as a partial answer to a charge, it rests on the prisoner to prove it, and it is not enough that he was excited or rendered more irritable, unless the intoxication was such as to prevent his restraining himself from committing the act in question, or to take away from him the power of forming any specific intention. Such a state of drunkenness may no doubt exist". A great authority on criminal law Stephen J., postulated the proposition in this manner in Beg. v. Doherty- "...... although you cannot take drunkenness as any excuse for crime, yet when the crime is such that the intention of the party committing it is one of its constituent elements, you may look at the fact that a man was in drink in considering whether he formed the intention necessary to constitute the crime".

Rex v. Meade where the question was whether there was any misdirection in his summing, up by Lord Coleridge, J. The summing up was in these words: "In the first place, every one is presumed to know the consequences of his acts. If he be insane, that knowledge is not presumed. Insanity is not pleaded here, but where it is part of the essence of a crime that a motive, a particular motive, shall exist in the mind of the man who does the act, the law declares this-that if the mind at that time is so obscured by drink, if the reason is dethroned and the man is incapable therefore of forming that intent, it justifies the reduction of the charge from murder to man- slaughter".

Section 86 runs in these terms:

"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 bad the same knowledge as he would have had if he bad not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will".

It is no doubt true that while the first part of the section speaks of intent or knowledge, the latter part deals only with knowledge and a certain element of doubt in interpretation may possibly be felt by reason of this omission. If in voluntary drunkenness knowledge is to be presumed in the same manner as if there was no drunkenness, what about those cases where mens rea is required. Are we at liberty to place intent on the same footing, and if so, why has the section omitted intent in its latter part? This is not the first time that the question comes up for consideration. It has been discussed at length in many decisions and the result may be briefly summarised as follows:-

So far as knowledge is Concerned, we must attribute to the intoxicated man the same knowledge as if he was quite sober. But so far as intent or intention is concerned, we must gather it from the attending general circumstances of the case paying due regard to the degree of intoxication. Was the man beside his mind altogether for the time being? If so it would not be possible to fix him with the requisite intention. But if he had not gone so deep in drinking, and from the facts it could be found that he knew what he was about, we can apply the rule that a man is presumed to intend the natural consequences of his act or acts. Of course, we have to distinguish between motive, intention and knowledge. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things. Even in some English decisions, the three ideas are used interchangeably and this has led to a certain amount of confusion.

In the old English case, Rex v. Meakin Baron Alderson referred to the nature of the instrument as an element to be taken in presuming the intention in these words: "However, with regard to the intention, drunkenness may perhaps be adverted to according to the nature of the instrument used. If a man uses a stick, you would not infer a malicious intent so strongly against him, if drunk, when he made an intemperate use of it, as he would if be bad used a different kind

of weapon; but where a dangerous instrument is used, which, if used, must produce grievous bodily harm, drunkenness can have no effect on the consideration of the malicious intent of the party."

In a charge of murdering a child levelled against a husband and wife who were both drunk at the time, Patteson J., observed in Regina v. Cruse and Mary his wife "It appears that both these persons were drunk, and although drunkenness is no excuse for any crime whatever, yet it is often of very great importance in cases where it is a question of intention. A person may be so drunk as to be utterly unable to form any intention at all, and yet he may be guilty of very great violence."

Slightly different words but somewhat more illuminating were used by Coleridge J., in Reg. v. Monkhouse"The inquiry as to intent is far less simple than that as to whether an act has been committed, because you cannot look into a man's mind to see what was passing there at any given time. What he intends can only be judged of by what he does or says, and if he says nothing, then his act alone must guide you to your decision. It is a general rule in criminal law, and one founded on common sense, that juries are to presume a man to do what is the natural con sequence of his act. The consequence is sometimes so apparent as to leave no doubt of the intention. A man could not put a pistol which he knew to be loaded to another's bead, and fire it off, without intending to kill him; but even there the state of mind of the party is most material to be considered. For instance, if such an act were done by a born idiot, the intent to kill could not be inferred from the act. Sol if the defendant is proved to have been intoxicated, the question becomes a more subtle one; but it is of the same kind, namely, was he rendered by intoxication entirely incapable of forming the intent charged?"

Supreme Court of India

Basdev vs The State Of Pepsu on 17 April, 1956

(1)That insanity, whether produced by drunkenness or otherwise, is a defence to the crime charged;

(2) That evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent;

(3)That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts. The result of the authorities is summarised neatly and compendiously at page 63 of Russel on Crime, tenth edition, in the following words:

"There is a distinction, however, between the defence of insanity in the true sense caused by excessive drunkenness and the defence of drunkenness which produces a condition such that the drunken man's mind becomes incapable of forming a specific intention. If actual insanity in fact supervenes as the result of alcoholic excess it furnishes as complete an answer to a criminal charge as insanity induced by any other cause. But in cases falling short of insanity evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent, but evidence of drunkenness which falls short of proving such incapacity and merely establishes that the mind of the accused was so affected by drink that he more readily gave way to some violent passion does not rebut the presumption that a man intends the natural consequences of his act".

Section 88 -89 illustrative cases ( , in practice the present position has undergone a slight change after 2006 due to a judgment of Supreme Court reproduced below)

a person in the position of a teacher or a college principal will for the purpose of enforcing discipline and correction have authority to impose corporal punishment with impunity provided the corporal punishment inflicted is moderate and reasonable. In Sankunni v. Venkataramani, 42 Mad LJ 460 : (AIR 1922 Mad 200) a college student claimed a considerable sum of money by way of damages against a principal of a college, who was alleged to have inflicted two smacks on him with his hand, on a finding that the plaintiff was guilty of a breach of school discipline, in that he was shaking a reversible desk which was in a rickety condition. The trial Court awarded damages. The principal having appealed, a Division Bench of this Court had to consider the liability of the principal of the college for the corporal punishment meted out to the plaintiff by him. After an elaborate consideration of the law in respect of the matter, Venkatasubba Rao, J., summed up the position thus :

"It follows, therefore, that for purposes of correction the school Master may inflict a moderate and reasonable corporal punishment". (moderate does not mean grevious or vigorous like , kicking a child in the face , slamming his/her face on the wall with extreme force etc cannot be considered to moderate)

This principle was applied by a Division Bench of the Bombay High Court in G. B. Ghatge v. Emperor, AIR 1949 Bom 226. It was there held "

"When a child is sent by its parent or its guardian to a school, the parent or guardian must be held to have given an implied consent to its being under the discipline and control of the school authorities and to the infliction of such reasonable punishment as may be necessary for the purpose of school discipline or for correcting the child."

Madras High Court

M. Natesan vs State Of Madras And Anr. on 27 September, 1961

The above principle applicable in respect of children under 12 years of age will also be applicable in the case of children over 12 and when a child over 12 comes to school it may be assumed that the child gives an implied consent to subject itself to the discipline and control of the school authorities and to receive reasonable and moderate corporal punishment as may be necessary for its correction or for maintaining school discipline.

The protection accorded by section 89 of the Indian Penal Code is no doubt limited to a child under 12 years of age. Section 88 of the same Code contains no such limitation. That section affords protection to a person who in good faith and for the benefit of the person concerned does something to him with his consent expressed or implied which causes harm. The Bombay case appears to extent not only the principle contained in section 89 to a child above the age of 12 years but also considers that the protection under section 88 would equally be available to a school teacher provided of course the act done by him by way of a punishment is moderate and reasonable.

It cannot be denied that having regard to the peculiar position of a school teacher he must in the nature of things have authority to enforce discipline and correct a pupil put in his charge. To deny that authority would amount to a denial all that is desirable and necessary for the welfare, discipline and education of the pupil concerned. It can therefore be assumed that when a parent entrusts a child to a teacher, he on his behalf impliedly consents for the teacher to exercise over the pupil such authority. Of course, the person of the pupil is certainly protected by the penal provisions of the Indian Penal Code. But the same Code has recognised exceptions in the form of section 88 and 89. Where a teacher exceeds the authority and inflicts such harm to the pupil as may be considered to be unreasonable and immoderate, he would naturally lose the benefit of the exceptions. Whether he is entitled to the benefit of the exceptions or not in a given case will depend upon the particular nature, extent and severity of the punishment inflicted.

Judgement give below is only for practice purpose because examiners are still working in accordance with Madras High court position and often don't recognize the position of Supreme Court , perhaps due to bias :

Hasmukh Gokaldas Shah v. State of Gujrat criminal appeal no. 798 of 199

Supreme Court disagreed with the corporal punishment approach and said its not recognized by law it rather suggested correctional measures by other means instead of corporal punishment . Holding that children have rights too , and upheld the conviction of a teacher in under section 323 but acquitted him under 306. The defence of Section 88 and Section 89 was negatived . (Author's opinion : judgment has held a relatively new position of law and so far it will take a bit of time to settle and until we get a constitutional bench judgment on this point which completely settles the issue , it will be unsafe to rely on it . Reason being that judgment is not elaborate as to why it disagrees but judge simply "observed" the above position .The observation being bereft of strong reasoning was more of a personal belief of a judge , as neither alternate correctional measures were elaborated upon or why reasonable corporeal punishment was wrong is not elaborated upon. Rather it compared corporeal punishment and conviction Juvenile Justice Act. )

010. Section 85-89 ipc
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