(i) Nothing is an offence which is done by a person who is bound by law to do it.
(ii) Nothing is an offence which is done by a person 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.
The first part of the section does not use the word ‘mistake’ at all. It simply says that a thing is not an offence if it is done by a person who is legally bound to do it. When law asks a person to do something which he does, it is not an offence. A person is bound by law to do something when the law puts him under an obligation. Doing a legal duty is not an offence. A person who is bound by law to do something does not commit an offence when he does it. There is no question of mistake of fact, mistake of law or good faith under this part of the section.
The second part of the section deals in fact with the defence of mistake of fact. Under this part a thing is not an offence if it is done by a person who because of mistake of fact and not of mistake of law in good faith believes that he is bound by law to do it. When a person is in fact not bound by law to do something but he does that by reason of a mistake of fact and not mistake of law in good faith believing that he is bound by law to do it, it is not an offence. Mistake of fact and good faith must be proved to be present while mistake of law must be proved to be absent under this part of the section. In other words, the well known principles ‘ignorantia facti excusat’ (ignorance of fact is excusable) and ‘ignorantia juris non excusat’ (ignorance of law is not excusable) have been incorporated under this part. There may be a difference between ignorance and mistake but they have been treated as same here.
The expression ‘mistake of fact’ means that there is a misconception in the mind about the existence of a fact. If truth or otherwise of a fact is not known correctly, it is a mistake of fact. ‘Mistake of law’, on the other hand, is a mistake as to the existence or otherwise of a law and includes a mistake as to what the law is. The expression good faith has the same meaning as is given under section 52 of the Code.
The Supreme Court has correctly appreciated the distinction between the two parts of the section in State v. Shew Mangal Singh, where the facts were that a police patrol party opened fire under the orders of a Deputy Commissioner of Police, after it was attacked on a dark night. One Assistant Commissioner of Police was injured in the attack. As a result of the firing by the patrol party two persons were killed. After a lapse of about nine years the police personnel were prosecuted for murder.
The Supreme Court in the appeal against their acquittal held that the prosecution did not succeed in proving the case against them. There was no question of proving the defence of mistake of fact by the accused. It is clear that the order of firing given by the superior officer to his subordinates was given under commands of the law and, therefore, the patrol party was bound to obey the orders under the first part of section 76 of the Code. Since the first part of the section was applicable there was no question of proving of mistake of fact and good faith by the accused at all. Consequently, they were not held liable for murder.
Illustration (a) in this section also states that when a soldier while obeying the orders of his superior officer in conformity with the commands of the law fires on a mob, he does not commit an offence. The key words in this illustration are ‘in conformity with the commands of the law’. The subordinate officer is protected only when the orders of the superior officer are in conformity with the commands of the law.
If such is not the case, he is liable for obeying the order. The expression means that the orders are justified and valid in the eye of law. All the legal requirements of a just order must have been fulfilled, only then is a subordinate officer protected under this section. Naturally, if the orders are blatantly illegal, neither the superior officer who gives the order nor the subordinate officer who executes or follows the same is protected under this section.
Such was the case in Charan Das Narain Singh v. State, where information was received that some persons were gambling in a tent. A party consisting of A, a superior officer and B, a soldier, were sent to make an enquiry. The party arrived and surrounded the tent. Soon after the sound of a gun was heard and the deceased who was inside the tent was found dead.
At the trial Â admitted that he had fired the shot but pleaded that he had done so in obedience to the order of his superior. It was held that the order issued by the superior officer A was wholly unjustified and unlawful and so Â was not bound to obey it. Sections 76, 79 or Exception 3 of section 300 of the Code did not apply. Since Â was a young man of 20 years of age, was recently recruited and was having an exaggerated notion of his duties and authority wielded by his superior, he was sentenced to rigorous imprisonment of three years only and clemency was recommended for him.
It can be concluded from the above decision that the law does not expect a person to obey illegal orders of his superior. The situation may sometimes be very unhappy for him because when he obeys an illegal order, he may be liable to punishment under law, while if he does not obey an order even though illegal, he may be liable under a departmental action for disobeying his superior officer. Another important conclusion which can be drawn from this decision is that even though the defence may fail, the circumstances of the case may justify mitigation of penalty.
A policeman who tortures anyone under the orders of a superior officer is similarly not protected under this section unless he proves that he was acting under fear of instant death.1 Illegal acts done under the orders of a parent or a master would make the doer liable for the same and this section does not give any benefit to him. But this section protects private persons who are bound to assist the police under section 37, Code of Criminal Procedure, 1973. Section 132, Code of Criminal Procedure, 1973 gives protection against prosecution for certain acts.