Doctrine of Necessity | Sec 81 Indian Penal Code

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Author: Mehrul Arora

Introduction
The Black’s Law Dictionary defines the word ‘necessity’ as ‘Controlling force;
irresistible compulsion; a power or impulse so great that it admits no choice of
conduct.’

When a defendant, in order to prevent a greater harm from taking place, commits a
crime or a criminal act during an emergency situation like such, the defence of necessity
is applied, wherein the defendant is excused or not held liable for the crime committed
by him because his act was justified as he or she had the intention to prevent a situation
which would cause a greater harm as compared to the criminal act committed by him or
her. Thus, criminal defendants who have intentionally violated the law, may claim that
they have not committed a criminal act due to the abovementioned reason.

Doctrine Of Necessity In Indian Criminal Law

Chapter IV of the Indian Penal Code (hereinafter referred to as the ‘IPC’) provides the
General Exceptions in which Section 81 states that –

Act likely to cause harm, but done without criminal intent, and to prevent other harm.—
Nothing is an offence merely by reason of its being done with the knowledge that it is likely to
cause harm, if it be done without any criminal intention to cause harm, and in good faith for
the purpose of preventing or avoiding other harm to person or property.
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Explanation.—It is question of fact in such a case whether the harm to be prevented or
avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act
with the knowledge that it was likely to cause harm.

The person who has been accused of committing a criminal act, should have done that
act in good faith in order to prevent a greater harm, without having the intention of
causing harm and merely with the knowledge that his act is likely to ensue and he will
not be held responsible for the result of his act. But, where the positive evidence against
the accused is clear, cogent and reliable, the question of motive is of no importance.[1]

In the prevention of harm, the accused is faced with two choices both resulting in some
harm and of sheer necessity to avoid a greater harm he has to commit an act which
would otherwise be an offence. The test really is like this: there must be a situation in
which the accused is confronted with a grave danger and he has no choice but to
commit the lesser harm, may be even to an innocent person, in order to avoid the
greater harm. Here the choice is between two evils and the accused rightly chooses the
lesser one.[2] Thus, where a Chief Constable not in his uniform came to a fire and wished
to force his way past the military sentries placed around it, was kicked be a sentry, it was
held that as the sentry did not know who he was, the kick was justifiable for the purpose
of preventing much greater harm under this sections and as a means of acting up to the
military order.[3] Similarly, where a village magistrate arrested a drunken person whose
conduct was at the time a grave danger to the public, it was held that he was not guilty of
an offence by reason of the provisions of this section or section 96 or 105.[4]

Leading Case Laws

Regina v. Dudley and Stephens[5]

In this case the defendants, that is, Thomas Dudley and Edwin Stephens and a cabin boy
named Richard Parker were cast adrift in a boat following a shipwreck without food and
water. On the 18th day, when they had been seven days without food and five days
without water, Dudley proposed to Stephen that lots should be cast who should be put to
death to save the rest, and that they afterwards thought it would be better to kill Parker
so that their lives could be saved. So, on the 20th day, Dudley with the assent of
Stephens, killed Parker and both of them fed on his flesh for four days., after which, a
vessel rescued them and they were charged with murder.

It was held that killing an innocent life to save one’s own does not justify murder even if it
is committed under extreme necessity of hunger. So, the defendants were sentenced to
death, but it was later commuted to six months imprisonment. And in R v Howe[6], the
House of Lords affirmed the case of Dudley and Stephens.

United States v. Holmes[7]

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In 1842, a longboat containing passengers and members of the crew of a sunken
American vessel was cast adrift in the stormy sea. To prevent the boat from being
swamped, members of the crew threw some of the passengers overboard. In the trial of
one of the crew members, the court recognized that such circumstances of necessity
may constitute a defence to a charge of criminal homicide, provided that those sacrificed
be fairly selected, as by lot. Because this had not been done, a conviction for
manslaughter was returned.

R v Bourne[8]
In this case, a young girl was pregnant because she was raped and the defendant, who
was a gynaecologist, had performed an abortion, with the consent of her parents
because he was of the opinion that the rape victim could die if permitted to give birth.
The defendant was found not guilty of “unlawfully procuring a miscarriage” following a
direction from the trial judge to the jury that the defendant did not act “unlawfully”,
rather he acted in good faith while exercising his clinical judgement.

Conclusion
Thus, the defendant under no circumstances should intentionally cause harm and harm
should be caused only during grave necessity in order to prevent a greater harm which
might have been caused in case the minor harm had not been committed by the
defendant.

[1]Gurucharan Singh v. State of Punjab, AIR 1956 SC 460 : 1956 CrLJ 827.

[2] Southwark London Borough Council v. Williams, (1971) Ch 734, (1971) 2 All ER 175.

[3]Mayer Hans George, (1964) 67 Bom LR 583, AIR 1965 SC 722.

[4] Gopal Naidu, (1922) 46 Mad 605 (FB).

[5](1884) 14 QBD 273.

[6][1987] AC 417.

[7]26 F. Cas. 360 (C.C.E.D. Pa. 1842).

[8][1939] 1 KB 687.

About the Author: Mehrul is a fourth-year law student at Law College Dehradun, Uttranchal
University.

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