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“Section 76 of the Act provides for the general exception to acts done by a person “bound” by the law. On the other hand, Section 79 of the Act provides for the exception of the act done by a person “justified” by law.
Here the essential difference between the two sections is the usage of the words “bound” and “justified”.Bound means that when the person feels/understands his/her responsibility to do such an Act, which may be by the virtue of his/her position for instance is necessary.
Bound would mean in certain circumstances a necessity to do a certain thing or an Act.
Justified means that when the person feels/understands his/her moral duty to do a certain act, which in the eyes of law, he/she feels is correct and provided under the legal provisions. It may not be a necessity/responsibility which arises out of one’s position or duty.
The common essentials include:
Good faith should be exercised in both sections and there should not be any reason for a mistake of law.”
~ Disha PathakMinors have their own stake when it comes to either contracting with a party or having criminal liabilities. Minor is basically an individual who still hasn’t attained legal age prescribed under the law in order to become eligible to have social, political and economic relations with the world. Under section 3 of Indian Majority Act 1875, a person who has not attained the age of 18 years is considered as a minor. A person with such a age number is prosecuted in a quite different way.
Indian Contract Act, 1872 has some provisions stating the legal status of an individual who hasn’t attained the legal age. The act clearly specifies that a minor is incompetent to enter into a contractual agreement with any party. The agreement signed by a minor is considered as invalid in the eyes of law irrespective of how it holds under the law. The Act specifies the fact that any contract which is void in itself is free from any outcomes arising out of it.
A minor cannot be held accountable even if he contracts by committing a tortious activity in order to enter into an agreement. Since he is not able to establish a valid contract, the act doesn’t allow the individual to revert back the former condition of the agreement in any future date when he attains the legal age. The minor after attaining the age of majority can enter into a fresh contract but cannot rectify the earlier one. In case minor possesses goods gained unlawfully after entering into the contract, he can be asked to return the goods he has which ultimately won’t be taken as a consideration of contract.
Under Criminal law, the Juvenile Justice Act 2000 states that in order to commit an offence an individual is required to attain the legal age of 18 years. The criminal law recognizes the mental state of a child in order to commit an offence.
It is essential for any individual to understand the consequences and the nature of the act done by him and thus the maturity to attain the level of understanding comes from a certain age.
Section 82 and 83 of the Indian Penal Code, 1860 states the provisions granting complete immunity to the infant above the age of 7 and under 12 being charged for a criminal offence with no understanding of consequential penal liabilities as stated in the leading case of Hiralal Mallick vs State of Bihar. These provisions are enshrined under the Act is to protect children who are stricken with the infancy having no proper state of mind in committing a particular act and the consequences thereafter.Liability in contract law:
As per the section 2(h) of Indian Contract Act, 1872 the term “Contract” means an agreement
which is enforceable by law. The contract must satisfy all the essential elements mentioned in the
Act to become a valid Contract.
One of the essential elements of a valid Contract is competent parties.
The term Competent parties mean a person who is major not a minor. Minor is an individual who has not attained the age of 18 years and the attaining majority is one of the essential condition
precedents for every contract. As per the Indian law, a minor’s agreement stands void, and it has
no stand in the eyes of the law. So a contract with minor stands null and void and either party can
not impose it. And even after the minor person attains majority, the same agreement cannot be ratified by him. The difference here is that a minor’s contract is null or void; So a contract
however, it is not illegal as there is no statutory provision regarding this. And the minors cannot
be held liable under contract law.Liability in criminal law:
Section 82 and section 83 of the Indian Penal Code confer a special immunity from criminal
liability to children up to 12 years of age. Children below 7 years of age get a complete defense
from criminal liability whereas, for children from 7 to 12 years, the immunity conferred will depend on their maturity level of understanding during the commission of the crime.
Section 82: According to this section, Nothing is an offence which is done by a child under seven
years of age.
Section 83: According to this section, Nothing is an offence which is done by a child above
seven years of age and under twelve, who has not attained sufficient level of maturity in
understanding the nature and consequences of his conduct on that occasion of crime.– The above-mentioned sections confer immunity from criminal liability on child offenders. The immunity is based on the principle of juvenile justice. The constitution provides the umbrella for juvenile justice. The constitutional basis for juvenile justice can be derived from Article 15 (3) and 39 (e) and (f). The presumption of absolute incapacity of a child for a crime under seven years is that a child around that age has no discretion to distinguish right or wrong, thus mens rea cannot be formed, and thereby criminal intention does not arise.
– Similarly, in section 83 a child under 12 years will only have blanket protection if he or she has no sufficient maturity of understanding. Therefore, if sufficient maturity of understanding can be proven, liability will arise.In the above case, the child is below 7 years, he/she cannot be charged with murder because under section 82 of the Indian penal code nothing is an offense, the acts which are done by the child under seven years of age. Liability of a crime not only involves the act done by the child, but it also includes mental intention to commit the crime. Under section 82 of the Indian penal code, and the juvenile justice act 2015, the children are doli incapax means the children below 7 years do not have any mental capacity to commit the crime. And in section 83 the child between the age of 7-12 has the defense of doli incapax but if the prosecution is proved then the child can be prosecuted so in the above case the child is below seven years and the child will not be liable for the death of an adult and the defense of doli incapax is used .and perpetrator that uses the child as an instrument to commit the crime is liable for abatement, The abatement of the illegal omission of an act may amount to an offense although the abettor may not himself be bound to do that act. So under section 108 perpetrators is liable to punish in the same manner as if a child had been capable by law of committing offense and murder and under section 302 of the Indian penal code the perpetrator is punished with death or imprisonment for a term extending up to 10 years
-Liability against the child
Section 82 of the Indian Penal Code states, “Nothing is an offense which is done by a child under seven years of age.”
Liability for a crime involves not just an act or omission (known as actus reus) but also the mental intention to do so (known as mens rea). For the mens rea to exist, a person needs to have the mental capacity to understand the consequences of what they’ve done. The law imposes a rigid presumption that children below the age of 7 do not have this mental capacity – that they are doli incapax.
-What will be the liability of the perpetrator that uses the child as an instrument to commit the crime?
Section 108 of Indian Penal Code states, “A person abets an offense, who abets either the commission of an offense or the commission of an act which would be an offense if committed by a person capable by law of committing an offense with the same intention or knowledge as that of the abettor.”
Explanation 3. —It is not necessary that the person abetted should be capable by law of committing an offense, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge.
Thus, reading both sections simultaneously it can be concluded that the child below the age of seven is not liable for any offense as they don’t have developed the mental capacity to know the circumstances and consequences. However, the perpetrator is liable to be punished and will be booked under the offense of Abetment.Intention:
Intent means cognizant objective or a purpose. Thus, a person who commits a criminal act in which that person’s apprised objective or purpose is to involve in that particular act which the
law prohibits or to bring an unlawful result by that act. An intention is an action or purpose of the
crime. It is divisible into an immediate act and ulterior object. The intention is the result of motive. Intention in criminal law is always termed to be bad and evil. It has a vital role in
determining the question of criminal liability.
Knowledge:
Knowledge is defined as a state of mental realisation that causes the mind to receive passive
ideas and impressions on a particular thing. For example, if you are driving rashly on a busy road, you have the knowledge that it may cause an accident that can even lead to death. Thus we
can say that knowledge may or may not lead us to crime. The word may play an important role in this term. In IPC Section 307, it states about attempt to murder with intention or attempt to murder with knowledge. This section mentions that whoever does any act with such intention or
knowledge, and under such circumstances that, if he by that particular act caused death, he would be held guilty for murder, and shall be punished with imprisonment of either description for a
term which may extend to ten years, and shall also be liable to fine.The term “Knowledge” refers to the ability to anticipate the consequences of one’s actions. For
instance, If X is aware of the swelling of Y’s intestines and any blows on them can cause severe
injury to Y, which leads to death. And on that part, the only X gives a blow to Y. Here X has
knowledge of the act he committed.
The first stage of crime is intention. The intention is the mental stage of crime. Intention to
commit a crime is seen from the act which a person commits. The act of giving poison to
someone indicates the person’s intention of killing another person. The overt act of an
individual will reveal his or her intention. Foreseeability of consequences is not enough to prove
intention. Desirability, as well as foreseeability, are necessary to constitute an intention. A
person’s intention can be determined by the circumstances and the use of the means, that
resulted in the criminal offense. There must be a prior intention to commit the act in order for
it to be considered a crime. An intention is a particular direction in which a person wants to
omit or commit an act prohibited by law. Since it is difficult to prove the guilty mind of a person
or the intention, mere intention without any action is not punishable by law.Knowledge is defined as the state of being aware of consequences of the harm or injury incurred whereas intention conveys the state of mind of committing an act with the purpose and intent to cause such harm or injury.
Herein knowledge and intention could be differentiated by this simple illustration:
X is aware of the fact that fire may cause serious injury that means he is capable of understanding the fact and possess the knowledge of the consequences that would occur still he throws burning matchsticks on the passer-by, this statement directs that with the intent to cause harm he injures other people. This clarifies that the knowledge and intention both are present in the given scenario.
Section 81 of the Indian Penal Code, 1860 states that the act likely to cause harm without criminal intent, and to prevent other harm which means the knowledge is available that it is likely to cause harm but the intention to do the act without criminal and guilty mind is necessary.
The act should either be done in good faith or under sheer necessity where the choice is to commit certain harm and to decide which one is the lesser harm to be done to avoid the greater harm that could not otherwise be avoided. This is the only way to avoid criminal responsibility in such cases.
The case where the captain of a ship in order to prevent the ship from wrecking into the boat with eight people on board on the right side and on another boat two people on board on the left side decides to crash into the boat with fewer people would be considered as a classic example of Section 81 under sheer necessity and in good faith to prevent the greater harm from happening by committing a lesser evil.
Here the knowledge of harming the two people on the other boat was clear to the captain, but in order to protect the lives of the other eight was an essential (good faith without criminal intent), so the exception to necessity can be applied here.
Though the delineate line between knowledge and intention is no doubt quite thin, but still it is not that difficult to common reasoning and understanding to distinguish the two.Section 154, 155, 156, 157 of CRPC talk about writing a complaint (FIR), investigation power of
police or magistrate in Cognisable and non-cognizable offenses. Whereas sections 174, 175,
176 of CRPC particularly talk about investigating the power and process of making a report by a
police officer or magistrate in unnatural deaths like suicide or death by the animal, etc.
In section 154 of CRPC, a complaint is filed (FIR) it can be in oral or written form, if in the oral
form then the police station in-charge shall write or under his direction should be written and
shall be signed by the person giving it as a copy of the information or complain (FIR) shall be
given free of cost to the informant (complaint). In section 174, if any information receives that a
person has committed suicide or killed by animal or death of person create suspicious that
some other person has committed an offense, he shall inform the nearest magistrate about it
and shall proceed to the place where the dead body found and prepare a report of the incident
with minimum two local respectable people of that area. After the report is prepared then it shall
be signed by investigating police officer and also other person and shall be forwarded to the
magistrate.
In section 155 of CRPC, without the permission of the magistrate have the power to trial a
non-cognizable case, a police officer or investigating officer can’t Investigate a non-cognizable
case. In section 156, Any magistrate empowered under section 190 of CRPC may order for
investigation of a Cognizable case when a police officer or superintendent rejects. In section
174, 175, 176 of CRPC, the magistrate can also make the report and investigate when the case
involves suicide by a woman or the death of a woman raising a reasonable suspicion that some
other person committed an offense or death of a woman, any relative of women requested in
this behalf, that any this incident occurred within seven years of her marriage. If something
happens in police custody like suicide, someone missing, rape, etc then any magistrate so
empowered may hold an inquiry and shall record all the evidence and also magistrate has
power to power to examine the dead body of any person who has already buried in ordered to
discover the cause of his death.In order to answer the said question we will first need to clearly differentiate between Investigation & Inquiry. Investigation is done by the police officer or any person authorised, which involves collecting of evidences for the purpose of inquiry, where the persons are examined & interrogated. Inquiry on the other hand is undertaken by the magistrate or court in order to answer a said question judicially under the code. Another term that is called in question is Inquest. Inquest can be done by the police or the magistrate especially for ascertainment of the cause of death in cases of suicide, unnatural death, death caused in police custody (exclusively taken up by the Magistrate) etc. After we get a hang of the three terms we will be able to distinguish between the two sets of sections present in the code.
Section 154, 156 & 157 of the code deal exclusively with the power of the police to get an information of a cognizable offence, investigate that offence & follow the procedure for that investigation mentioned is section 157. While, if we study section 174 & 176 of the code, the main objective is merely to ascertain whether a person has died under suspicious circumstances or unnatural death and if so what is the apparent cause of death. After which an inquest report has to be made describing the same. To specifically draw a difference between section 154 & 174, section 174 is not as detailed as section 154. Inquest report does not require the details of the accused, or details of the incident, which are the main ingredients of an FIR & investigation report. After making of the inquest report the police officer shall hold an investigation. But the main objective of section 174 & 176 remains mere ascertainment of cause of death which is suspicious or unnatural. Section 176 deals majorly with Custodial deaths & rapes, on which an inquiry is held by the magistrate. This inquiry is other than or in addition to a police investigation. The main aim being that in cases of custodial deaths and rape, police officers & their investigations are not always to be trusted.
Thus section 154, 156 & 157 deal with power of police & section 174 & 176 gives power mainly to the magistrate to keep a check on the investigating powers of the police & not solely rely on the investigation report of the police, especially in cases of unnatural deaths, custodial deaths etc.A contingent contract is an agreement that states which actions under certain conditions will result in specific outcomes. Contracts of insurance are contingent contracts because, in a life insurance contract, the insurer pays a certain amount if the insured dies under certain conditions. The insurer is not called into action until the event of the death of the insured happens. This is a contingent contract.
A contingent contract as defined in section 31 of Indian Contract Act, 1872 is that contract which depend on happening or non-happening of an event. As insurance depends on happening of a mishap for which the entity is insured from, it is a contingent contract. It can be enforced when that particular thing has happened and in case it doesn’t happen then the contract becomes invalid as per section 32 of ICA, 1872.For Example, X insured his car and the insurer promised to pay him in case the car was stolen. Since, the payment depend upon the loss of car by theft, it is a contingent contact. And, the insurer will be liable only when the car gets stolen.
According to section 31 of the Indian Contract Act, 1872, the contracts that depend on the happening or non-happening of events collateral to the contracts are contingent contracts. Insurance on the other hand means protection from a future loss. The similarities between the two can be discussed—
• There are two parties to the contract.
• The object of the contract is protecting the party against some future loss.
• One of the parties has a right to recover costs incurred in a defending suit.
• The other party generally does not have any liability until some loss takes place.
Therefore, insurance contracts fall under the purview of Contingent Contracts under section 31. The insurance agreement includes minute details like the conditions, limitations and exclusions. Along with that, it requires all the essential elements of a valid contract to become enforceable. Subsequently, if the event contingent upon which the contract was made takes place, the insurance amount can be claimed.
Insurance agreements generally include payment of premiums, which are often absent in other forms of contingent contracts.
In United India Insurance Co. vs. M/s. Aman Singh Munshilal, on the way to the destination the insured goods were to be stored in a godown before being carried to the destination. While the goods were in the godown, they were destroyed by fire. The court held that the goods were destroyed during transport, and the insurer was liable as per the fire insurance contract.
Life insurance, however, is not a contract of indemnity because the interest money is repaid either to the insured (if the insurance is for a limited period of time and the time elapses) or to his heirs or nominees (upon his death). Thus, the question of the amount of loss suffered by the assured does not arise. Moreover, the life of a person cannot be valued in terms of money.Contingent contracts are those contracts that become enforceable upon the happening or not happening of an event.
Contingent contracts are defined under section 31 of the Indian contract act, 1872 and are defined as “A contingent contract is a contract to do or not to do something, if some event collateral to such contract does or does not happen”. Examples of contingent contracts are contracts of guarantee and contracts of indemnity.
Even a contract of insurance is considered to be a contingent contract. An insurance contract is considered a type of contingent contract because an insurance contract gets enforceable when an event as per the terms of the contract has taken place. Examples of insurance contracts are fire insurance, marine insurance, and life insurance.
Insurance contract becomes enforceable when an event occurs as per the terms of the contract and when that event occurs, there has damage been done to one party of the contract.For example, under a fire insurance contract, if goods have been damaged due to a fire incident and those goods have been insured, then the contract becomes enforceable under the fire insurance contract as they have been damaged due to a fire incident itself.
One more example is that of life insurance under which the insurer pays a certain amount of money to the insurance company for a certain amount of time and if the insured dies within that time then the beneficiary gets the amount as per the terms of the contract. Thus life insurance is also applicable when someone loses their life only.
So it can be concluded that a contract of insurance is a commercial application of a contingent contract and it is enforced only when events concerning the terms of the contract have occurred.
