TOPIC: Necessity

PRESENTED BY-
Kriti Srivastava
19213218
5BBALLB
MISSION VISION CORE VALUES
CHRIST is a nurturing ground for an individual’s Excellence and Service Faith in God | Moral Uprightness
holistic development to make effective contribution Love of Fellow Beings
to the society in a dynamic environment Social Responsibility | Pursuit of Excellence
 CHRIST
Deemed to be University

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.

Excellence and Service

 CHRIST
Deemed to be University

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.”

Excellence and Service

 CHRIST
Deemed to be University

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.

Excellence and Service

 CHRIST
Deemed to be University

Essential ingredients of Necessity

• Knowledge of harm should exist but the act should be without any
criminal intention. It is necessary for this exception that the absence
of any criminal intention. Any intentional action cannot be justified.
• The purpose of the act is to prevent or avoid harm which is to person
or property. Even if the wrongful act is committed with the
knowledge of it being so. Also, the act committed is to prevent harm
to a person or a property, the act would be covered under this section.
It will not be an offense.
• It must be in good faith. Good faith is circumstantial i.e. the act
should be done in an imminent situation.
Excellence and Service
 CHRIST
Deemed to be University

Principle of no other alternative

• In other words, any act committed causing harm to another person or

property with the objective to prevent or avoid any other harm will not be
an offence.
• However, it is to be noted that the act committed must be done without any
criminal intent and with the knowledge that if it is not prevented or
avoided, it is likely to cause some harm.
• This section allows the doing of lesser evil to prevent greater evil either to
a person or property. In situations where necessity forces a person to do
some illegal act, a person can use the defence of section 81 because no one
can be guilty of a crime without the will and intention of the mind.

Excellence and Service

 CHRIST
Deemed to be University

Types Of Necessity
Public Necessity
Public necessity pertains to action taken by public authorities or private
individuals to avert a public calamity. The action consists in destroying or
appropriating another’s property.he classic example of public necessity is the
destruction of private property to prevent the spread of fire or disease and
hence to avert an injury to the public at large. Public necessity is in
operational where the police trespass on damage. Private property in order to
apprehend a criminal suspect or gain access to the site of an emergency. The
principle behind public necessity is that the law regards the welfare of the
public as superior to the interest of individuals and when there is a conflict
between the latter must give way. Public necessity serves as an absolute
defense.
Excellence and Service
 CHRIST
Deemed to be University

Private Necessity
Private necessity arises from self interest rather than from a
community at large. It takes place when the defendant wants to protect
his own interest. It does not serve as an absolute defense unlike in the
case of public necessity. Private necessity can be explained with the
following example. If defendant entered upon his neighbor’s land
without his consent, in order to prevent the spread of fire into his own
land. The principle applied for private necessity is “necessitas inducit
privilegium quod jura private”, meaning ‘Necessity induces a privilege
because of a private right’. This maxim makes it clear that private
defense its more kind of a privilege enjoyed by many person.

Excellence and Service

 CHRIST
Deemed to be University

Importance Of Necessity

Necessity incorporates flexibility into laws that would have been lead to unjust results
(that is, punishment of desirable conduct) if applied mechanically. The defence of
necessity applies to situations where torture is morally justified. Like in the case of a
prisoner who breaks the prison and runs away because he was mentally and physically
tortured by the prison authorities. Necessity provides relief in situation pertaining to
this. Necessity” defense has the effect of allowing one who acts under the
circumstances of ‘necessity’ to escape criminal liability. Perhaps the necessity defense
should be thought of as a moral provision for mala in se offenses. Mala in se offenses
generally protect against harms to others, and to the extent that the necessity defense
defines situations in which one may harm others. The shape of the defense should track
our moral judgments about when it is morally permissible for a person to harm others.

Excellence and Service

 CHRIST
Deemed to be University

Regina v. Dudley and Stephens (1884) 14 QBD 273

• 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.
Excellence and Service
 CHRIST
Deemed to be University

Re F (Mental patient sterilisation) [1990] 2 AC 1

F was a 36-year-old woman who was suffering from a serious mental

disability and since the age of 14, was a patient in a mental hospital,
voluntarily. Eventually she developed a sexual relationship with
another patient. The hospital and her mother were concerned as they
believed she wouldn’t be able to handle a pregnancy or raise a child.
As other methods of contraceptives failed, they thought it would be
best for her to get sterilised. F was incapable of giving valid consent
as she was not capable and this said operation was a necessity for
herself. The court held the decision to be lawful.

Excellence and Service

 CHRIST
Deemed to be University

R v. Bourne[1939] 1 KB 687

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.

Excellence and Service

 CHRIST
Deemed to be University

Conclusion

The conclusion that one can reach is that necessity considers

circumstantial morality and provides one to be saved from his
circumstantial offence.
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.

Excellence and Service