IPC 87 – 92 Consent
Section – 87 – 92 Consent
Section – 87. “Act not intended and not known to be likely to cause death or grievous hurt , done by consent.”-
With the consent of above 18 years old person
Whenever any person does an act, without any intention of causing death or grievious hurt and without any knowledge to be likely to cause death or grievous hurt, which causes injury to another person above eighteen years of age, who has given consent, whether express or implied , to suffer that harm which may be known by the doer, then the act shall not be an offence and the person shall not be liable.
The act is exempted under the code from criminal liability where the accused is not charged of the crime committed. As the act shows absence of mens rea i.e. guilty mind. While Actus reus and mens rea are two essential elements to impose criminal liability on accused.
According to Principle of criminal liability in IPC which is basis on latin maxim “Actus non faciet reum nisi mens sit rea”
It is based on the maxim “Volenti non fit injuria”
It is based on two proposition;
- Every person is the best judge of his own interest and,
- No man will consent to what he thinks hurtful to himself.Every man is free to suffer any injury to his person or property. Therefore if he consents to the injury being done by another, the doer commits no offence.
The section does not permit a man to give his consent to anything intended or known to be likely to cause his own death or grievous hurt.
So, If any person does an act with intention & knowledge to cause death to another person above eighteen years of age, who has given consent for it then section 87 shall not be applied but also Sec. 300(5) Exception 5 shall be applied.
Essential Element of Section 87
- If an act is done, without any intention of causing death or grievious hurt and without any knowledge to be likely to cause death or grievous hurt.
- which causes injury to another person,
- The person is above eighteen years of age, who has given consent, to suffer that harm
- The given consent may be express or implied ,
- The harm may be known by the doer
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(Bare act of IPC)
Cases
Deepa v. SI of police, 1985 CrLJ 1120 ( ker.)
Sections 87 and 88 of the IPC, 1860 do not come into play in the cases where interest of the Society is involved.
Punai Phatima v. Emp. ( 1869) 12 W. R. (Cr.) 7.
In this case Accused,who was a snake charmer convienced the deceased that he has power to ptotect from any type of harm by snake bite.believing on him the deceasd consented to cut himself by snake to snakecharmer.In result he dead. In this section the court rejeced the defence of consent.
R v Powell ( Jason Wayne), ( 2002) EWCA Crim 661: ( 2002) 22 Cr App R (S) 117 Injection of heroin on request resulting in death– The accused appealed against a sentence of five years imprisonment for manslaughter. The deceased, visited him, at his flat. He had previously drunk a significant quantity of alcohol. He took some heroin and demanded more. At his request the accused injected him with more heroin, resulting in his death. The accused contended that weight should have been given to his admission of responsibility and his guilty plea, the fact that the deceased had insisted upon more heroin, that there was no commercial motive involved in the supply and that he had co- operated in naming the supplier of the heroin.
It was held that it was necessary to take into consideration accused’s co– operation in naming the supplier of the heroin and other mitigating factors. The Sentence for manslaughter was reduced to three years imprisonment and the sentence for supplying a class A drug, from three years imprisonment to two years.
Section. 88 “Act not intended to cause death, done by consent in good faith for person’s benefit.”
With the consent of that person
Whenever any act is done, without any intention of causing death,but may be knowledge to be likely to cause death, may be intention & knoledge to be likely to cause grievous hurt which causes harm to another person who has given consent, whether express or implied , to suffer that harm or to take the risk of that harm. If it is done for benefit of that person done in good faith, then the act shall not be an offence and the person shall not be liable.
The act is exempted under the code from criminal liability where the accused is not charged of the crime committed. As the act shows absence of mens rea i.e. guilty mind. While Actus reus and mens rea are two essential elements to impose criminal liability on accused.
According to Principle of criminal liability in IPC which is basis on latin maxim “Actus non faciet reum nisi mens sit rea”
In other words, Nothing is offence which is done in good faith for benefit of the person who has given consent, whether express or implied , to suffer that harm or to take the risk of that harm, without any intention of causing death,but may be knowledge to be likely to cause death, may be intention & knowledge to be likely to cause grievous hurt.
Essentials of Section 88
- If an act is done, without any intention of causing death,but may be knowledge to be likely to cause death, may be intention & knoledge to be likely to cause grievous hurt.
- which causes harm to another person,
- who has given consent, to suffer that harm or to take the risk of that harm,
- The given consent may be express or implied ,
- The act is done for the benefit of the person who has given consent
- The act is done in good faith
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 benefit, performs that operation on Z, with Z’s consent. A has committed no offence. —
Cases
Juggankhan, ( 1963) 1 CrLJ 296 ( MP)
Persons not qualified as medical practioners cannot claim the benefit of this section as they can hardly be deemed to act in good faith as that expression is defined in section 52.
Criminal liability on doctor or surgeon –
Suresh Gupta v. Govt. of NCT of Delhi, AIR 2004 SC 4091
Prosecution has to come out with a case of high degree of negligence on part of doctor. Thus, when a patient agrees to go for medical treatment of surgical operation, every careless act of the medical man cannot be termed as criminal. It can be termed criminal only when the medical man exibits a gross lack of competence or inaction and wanton indifference to his patient’s safety and which is found to have arisen from gross ignorance or gross negligence. Where a patient’ death results merely from error of judgement or an accident, no ciminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable.
Section 89. “Act done in good faith for benefit of child or insane person, by or by consent of guardian.”—
With the consent of guardian
Whenever any act is done, in good faith for benefit of a person under twelve years of age or of unsound mind, with the consent, of the guardian or other person having lawful charge of that person, either express or implied, to suffer that harm or to take the risk of that harm, without any intention of causing death,but may be knowledge to be likely to cause death, may be intention & knowledge to be likely to cause grievous hurt. then the act shall not be an offence and the person shall not be liable.
The act is exempted under the code from criminal liability where the accused is not charged of the crime committed. As the act shows absence of mens rea i.e. guilty mind. While Actus reus and mens rea are two essential elements to impose criminal liability on accused.
According to Principle of criminal liability in IPCwhich is basis on latin maxim “Actus non faciet reum nisi mens sit rea”
Provisos.
- First.—That this exception shall not extend to the intentional causing of death, or to the attempting to cause death;
- Secondly.—That this exception shall not extend to 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 infirmity;
- Thirdly.—That this exception shall not extend to 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 infirmity;
- Fourthly.—That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend
Illustration
A, in good faith, for his child’s benefit 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.
In other words, Nothing is offence which is done in good faith for benefit of a person under twelve years of age or of unsound mind, with the consent, either express or implied of the guardian or other person having lawful charge of that person, without any intention of causing death,but may be knowledge to be likely to cause death, may be intention & knowledge to be likely to cause grievous hurt.
Proviso are following-
- But the act of intentional causing of death or the attempting to cause death can not be done under this exception,
- The act of knowingly to be likely to cause death can not be done under this exception except the purpose for the preventing of death or grievous hurt or the curing of any grievous disease or infirmity,
- The act of voluntary causing of grievous hurt or the attempting to cause grievous hurt, can not be done under this exception except the purpose of preventing death or grievous hurt or the curing of any grievous disease or infirmity,
- The act can not be done under this exception for the abetment of any above offence.
Essentials of section 89
If a person wants to take avail the defence under section 89 the following conditions must be fulfilled:
- The act must be done for the benefit of a person who is either a minor under 12 years of age or a person of unsound mind.
- The act must be done in good faith.
- The act must be done by the guardian or by the consent of the guardian or other person having lawful charge of that person.
- The consent may either be express or implied.
Case:
K A Abdul Vahid v State of Kerala, 2004 CrLJ 2054 ( ker)
The kerela high court considered the question when a school teacher, beats a student with a cane, who created commotion in the school or showed disobdience to the rules, whether he could be proceeded against under the provisions of the IPC, 1860 and found that the teacher has acted within the exception conferred on him, under section 88 of IPC 1860.
Section – 90 “Consent known to be given under fear or misconception.”—
If consent is given in following cases,
by a person under fear of injury, by a person under a misconception of fact, and the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception. And by a person of unsound mind, by a person who is intoxicated, by a person under 12 years of age, who is unable to understand the nature and consequence of that to which he gives his consent. Then the consent is not considered free consent under this section;
In other words,
In the following cases consent is not considered a free consent under this section-
- Consent given by a person under fear of injury.
- By a person under a misconception of fact.
- By a person of unsound mind.
- By a person who is intoxicated.
- By a person under 12 years of age.
Cases
In Poonai Fattemah [1](1869) 12 WR (Cri) 7
In this case,death was caused by a venomous snake under a misconception created by the snake charmer that the bite would do no harm, it was argued that the consent was not a true consent because it was granted on the grounds of the snake charmer’s promises.
In Jayanti Rani v. State of West Bengal [2](1984) Cr LJ 1535 (Cal)
It was held that “consent for sexual intercourse obtained on a promise to marry in the future and its failure by the accused cannot be said that it was induced by misconception of fact unless from the very beginning the accused never really wanted to marry the girl who consented to sexual intercourse until she became pregnant on the promise of marriage”.
State of UP v. Naushad, [3]2014 CrLJ 540
Where the accused had sexual intercourse with the prosecutrix by giving false assurance to her that he would marry her and when she became pregnant, he refused to do so, it was evidentthat he never intended to marry her and procured her consent only for the reason of having sexual relations with her, therefore the act of the accused fell squarely under the definition of rape as her consent was obtained under a misconception of fact.
Pradeep Kumar V state of Bihar [4]2007 SC 3059
A promise to marry without anything more will not give rise to “misconception of fact” within the meaning of section 90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. if on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be no avail to the accused to exculpate him from the ambit of section 375 clause second.
Section- 91. Exclusion of acts which are offences independently of harm cause.—
The exceptions in sections 87, 88 and 89 do not extend to acts which are offences independently without any harm which they may cause, with the intention to cause, or with the knowledge to be likely to cause, to the person who has given 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 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.
In other words,
Acts which are offences independently of any harm which they may cause will not be covered by consent given under section 87, 88 and 89. E.g. – Causing miscarriage, Public nuisance, offences against public safety, morals etc.
Section 91 is an exception to the general exceptions contained in sections 87, 88 and 89 of the Code.
But in the case of causing miscarriage pregnancy can now be terminated under section 3 of Medical Termination of Pregnancy Act, 1971, on a number of grounds and not only on the ground of saving the life of the woman.
Section – 92. Act done in good faith for benefit of a person without consent.
Without the consent
Whenever any act is done, in good faith for benefit of a person, even without that person’s consent. If the circumtances 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 having lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit,without any intention of causing death,but may be knowledge to be likely to cause death, may be intention & knowledge to be likely to cause grievous hurt. then the act shall not be an offence and the person shall not be liable.
The act is exempted under the code from criminal liability where the accused is not charged of the crime committed. As the act shows absence of mens rea i.e. guilty mind. While Actus reus and mens rea are two essential elements to impose criminal liability on accused.
According to Principle of criminal liability in IPC which is basis on latin maxim “Actus non faciet reum nisi mens sit rea”
Provisos.
- First.—That this exception shall not extend to the intentional causing of death, or to the attempting to cause death;
- Secondly.—That this exception shall not extend to 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 infirmity;
- Thirdly.—That this exception shall not extend to 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 infirmity;
- Fourthly.—That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend
In other words
—Nothing is an offence by reason of any harm which it may cause to a person for whose benefit 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 benefit:
Provisos are following-
- But the act of intentional causing of death or the attempting to cause death can not be done under this exception,
- The act of knowingly to be likely to cause death can not be done under this exception except the purpose for the preventing of death or grievous hurt or the curing of any grievous disease or infirmity,
- The act of voluntary causing of grievous hurt or the attempting to cause grievous hurt, can not be done under this exception except the purpose of preventing death or grievous hurt or the curing of any grievous disease or infirmity,
- The act can not be done under this exception for the abetment of any above offence.
Illustrations
(a) Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires to be trepanned. A, not intending Z’s death, but in good faith, for Z’s benefit, performs the trepan before Z recovers his power of judging for himself. A has committed no offence.
(b) Z is carried off by a tiger. A fires 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 benefit. A’s ball gives Z a mortal wound. A has committed no offence.
(c) A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is not 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 benefit. A has committed no offence.
(d) A is in a house which is on fire, with Z, a child. People below hold out a blanket. A drops the child from the housestop, 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 benefit. Here, even if the child is killed by the fall, A has committed no offence.
Explanation.—Mere pecuniary benefit is not benefit within the meaning of sections 88, 89 and 92.
[1] (1869) 12 WR (Cri) 7
[2] (1984) Cr LJ 1535 (Cal)
[3] 2014 CrLJ 540
[4] 2007 SC 3059