[1], it was held that “the teacher shall be protected under section 89 of the Code even if he exceeds the limit if any, laid down by the government of the State”.
In M Natesan v. State of Madras[2], it was held by the Madras HC that it cannot be denied that, having regard to the peculiar position of a school teacher, he must, in the nature of things, have the authority to enforce discipline and to correct the charge placed on him by a student. To deny that authority would be to deny everything that is desirable and necessary for the welfare, discipline and education of the student concerned.
It can therefore, be assumed that, when a parent has entrusted the child to a teacher, he consents implicitly, on his behalf, to the exercise of that authority by the teacher. Of course, the person of the pupil is certainly protected by the criminal provisions of the Indian Penal Code. However, the same Code recognized exceptions in the form of Sections 88 and 89.
If the teacher exceeds the authority and inflicts such damage to the pupil as may be considered to be unreasonable and immoderate, the benefit of the exceptions would naturally be lost. Whether or not he is entitled to the benefit of the exceptions in a given case will depend on the specific nature, extent and severity of the penalty.”
F. Provisos to Sections 89 and 92
Sections 89 and 92 discuss cases in which the person injured does not consent to the harm done. Section 89 deals with minors under 12 years of age and people with an unsound mind, and therefore do not have the moral capacity to give consent. Consent shall therefore be granted on their behalf by the parents or individuals legally responsible to them.
Section 92 deals with circumstances where it is difficult or necessary to seek the permission of the guardians in the event of an emergency circumstance. In both of these clauses, the end result is that the act involved was carried out without the consent of the person concerned.
In light of this, the legislature found it necessary to provide some extra protections and the clause that the doer would behave in ‘good faith’ is not enough.
Therefore, the following four clauses have been applied to these provisions:
- Firstly, the protection of these two parts does not apply to the deliberate causes of hurt death is not either in a position to give consent or is not realistic when attempting to cause death.
- Secondly the rules will not apply to cases where the doer is conscious or is aware that the act is likely to cause death unless the act is done to prevent death or serious harm or to treat some serious illness or infirmity.
- Thirdly, the rules shall not apply to cases where there is a deliberate cause of grievous hurt or effort to inflict grievous harm unless it is intended to prevent death or grievous hurt or to remedy any grievous illness or disorder.
- Fourthly, the provisions will not apply to the abetting of offenses where the abetting of the offense does not fall within the scope of these provisions.
II. Exclusion of acts which are offences independently of harm caused
“Section 91 in The Indian Penal Code: Exclusion of acts which are offences independently of harm caused.—The exceptions in sections 87, 88 and 89 do not extend to acts which are offences independently of any harm which they may cause, or be intended to cause, or be known to be likely to cause, to the person giving 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 an 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.”
Scope and Nature of Section 91- Where consent does not absolve a doer
Section 91 provides an exception to the exceptions set out in sections 87, 88 and 89. It does not state in any vague words that consent would condone the act that causes harm to the person giving the consent that would otherwise be an offense, and not the actions that are offenses irrespective of the damage consented.
In accordance with sections 87, 88 and 89, the harm caused to persons with their consent or for their benefit with their consent does not constitute an offense as long as such harm is not likely to cause death or serious harm to a person who has given consent.
According to sections 87, 88 and 89, the actions that have been alleged should cause harm or cause harm. These actions are offences, but for the consent of the person to whom the damage is caused. Accordingly, under ss 87, 88 and 89, the doer’s actions, but for the consent given, would constitute an offense on account of any harm that may be caused or intended to cause.
Section 91 contemplates, however, a case in which, notwithstanding the consent given, an act constitutes an offense not because of the harm caused or expected to be caused, but because the act consented to is in itself unlawful. The section’s illustrations are self-explanatory.
Section 93 in The Indian Penal Code: Communication made in good faith.—No communication made in good faith is an offence by reason of any harm to the person to whom it is made, if it is made for the benefit of that person.
Illustration
A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient’s death.”
Section 93, read with its illustration, aims to protect individuals, especially medical practitioners, to communicate, to the patient in good faith and for his benefit, causing harm to the recipient. The essential ingredients of this clause are: first, it must be conveyed in good faith and, second, it must be done for the benefit of the individual it is made to.
References
- KI Vibhute, PSA Pillai’s CRIMINAL LAW, 11th ed, 2012, Lexis Nexis.
- Ratanlal & Dhirajlal, THE INDIAN PENAL CODE, 35th ed, Lexis Nexis.
- KD Gaur, CRIMINAL LAW CASES AND MATERIALS, 5th ed, Lexis Nexis.
[1] AIR 1965 Cal 32
[2] AIR 1962 Mad 216