Acts Done For The Benefit Of A Person Without Consent

Acts done without consent for the benefit of persons are justifiable acts and ultimately exempt an individual from criminal liability. Sections 88, 89 and 92 deal with situations where acts to injure the victim are committed in good faith for the benefit of the individual.

I. Acts Done For The Benefit Of A Person Without Consent

“Section 88 in The Indian Penal Code: Act not intended to cause death, done by consent in good faith for person’s benefit.—Nothing which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.

Illustration

A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint, but not intending to cause Z’s death and intending in good faith, Z’s benefit performs that operation on Z, with Z’s consent. A has committed no offence.”

“Section 89 in The Indian Penal Code: Act done in good faith for benefit of child or insane person, by or by consent of guardian.—Nothing which is done in good faith for the benefit of a person under twelve years of age, or of unsound mind, by or by consent, either express or implied, of the guardian or other person having lawful charge of that person, is an offence by reason of any harm which it may cause, or be intended by the doer to cause or be known by the doer to be likely to cause to that person: Provisos

Section 92 in The Indian Penal Code: Act done in good faith for benefit of a person without con­sent.—Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person’s consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit.

Illustrations

1. Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires to be trepanned. A, not intending Z’s death, but in good faith, for Z’s benefit, performs the trepan before Z recovers his power of judging for himself. A has commit­ted no offence.
2. Z is carried off by a tiger. A fires at the tiger knowing it to be likely that the shot may kill Z, but not intending to kill Z, and in good faith intending Z’s benefit. A’s ball gives Z a mortal wound. A has committed no offence.
3. A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is no time to apply to the child’s guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the child’s benefit. A has committed no offence.
4. A is in a house which is on fire, with Z, a child. People below hold out a blanket. A drops the child from the house-top, knowing it to be likely that the fall may kill the child, but not intending to kill the child, and intending, in good faith, the child’s benefit. Here, even if the child is killed by the fall, A has committed no offence. Explanation.—Mere pecuniary benefit is not benefit within the meaning of sections 88, 89 and 92.”

A. No Criminal Intention to Cause Death

These three sections provide that the perpetrator should not intend to cause death. Sections 89 and 92 deal with situations in which people to whom the harm has been done are not able to consent. In Section 89 the guardian or a person in charge may act or give the consent to this for the benefit of children under 12 years of age and persons with unsound mind.

The first provision of these sections states in these 2 sections that this exemption shall not extend to the deliberate killing or to attempting to cause death. The words actually also say that in order to get protection against criminal responsibility, according to these clauses, there should be no motive or mens rea to cause death. The intention should be not to cause death, although the doer may know that the act is likely to cause death. Thus, a distinction is made between ‘intention’ and ‘knowledge’.

In the illustration of Section 88, the surgeon certainly does not want the harm that can be caused, nor is it his purpose. Nonetheless, the sections’ provisions indicate that he might have intended the damage, and these provisions alone save him from being a criminal. An unqualified medical practitioner, however, cannot invoke section 88 immunity because it can hardly be considered to be acting in ‘good faith’.

B. For the Benefit of the Person

Under all these three sections, if the accused wishes to take advantage of the immunity from criminal liability, he must prove that the crime is carried out not only without the intention of causing harm but for the “profit” of the person concerned. The terms ‘merely pecuniary benefit’ indicate that while the act cannot be for pecuniary profit only, it can be for pecuniary benefit as well as some other benefit.

Furthermore, if the damage caused is merely culminated in a pecuniary gain, it will not amount to benefit as suggested by ss 88, 89 and 92. For instance, if a desirable beggar was amputated by hand to allow him to effectively beg, the harm caused would have accrued on the sufferer only a ‘mere pecuniary gain’.

C. Consent

In accordance with section 88, ‘consent’ must be obtained from the individual concerned. In accordance with section 89, in so far as it deals with harm caused to the good of a child under 12 years of age or an adult of an unsound mind, consent must be obtained from the parent or other entity legally responsible for that individual.

As for section 92, emergencies are dealt with when either the person being harmed or the guardian, if the person being harmed is a minor or a person of unsound mind, is unpractical or cannot obtain the consent of the person being harmed. The illustrations in section 92 show clearly how this clause is concerned.

D. Good Faith

The sections provide that the perpetrator of the act who causes the damage must not intend to cause death or grievous injury, but must act in good faith as well. A thing, according to s 52 of the IPC, is said not to be done in good faith if it is done or believed without due care and attention.

In order to obtain the benefit of section 88 or section 89, it is necessary for the accused to prove that he has done the act charged as an offense with’ due care and care’. However, as far as ss 88, 89 and 92 are concerned, ‘good faith’ may sometimes be more than just ‘due care and attention’. This is particularly true in engaging with doctors ‘ and physicians ‘ behaviour.

In addition to vigilance and concern, sufficiently adequate knowledge and experience of their industry is also required for physicians and doctors who attempt to prescribe medication or conduct surgical operations. If this is not present, then the patient’s consent may not come to the harm doer’s assistance. The patient’s approval and the health practitioner’s approval are interdependent.

E. Corporal Punishment by School Teachers

When a child under the age of 12 is sent to a school by his or her parent or guardian, it is presumed that the parent or guardian gives his or her implied consent to put the child under the discipline and control of the school authorities and, if appropriate, to impose reasonable punishment on the child for the maintenance or correction of school discipline.

And when a child over the age of 12 goes to school, it can be concluded that the child gives an implied consent to be subject to the discipline and control of the school authorities and to undergo fair and mild corporal punishment as required for the correction and enforcement of the discipline of the school.

Therefore, a mild corporal punishment imposed in good faith by a teacher to preserve school discipline or inculcate good habits in the pupil is not a crime.

In Ganesh Chandra Saha v. Jivraj Somani[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

1. KI Vibhute, PSA Pillai’s CRIMINAL LAW, 11^th ed, 2012, Lexis Nexis.
2. Ratanlal & Dhirajlal, THE INDIAN PENAL CODE, 35^th ed, Lexis Nexis.
3. KD Gaur, CRIMINAL LAW CASES AND MATERIALS, 5^th ed, Lexis Nexis.

[1] AIR 1965 Cal 32

[2] AIR 1962 Mad 216

---

1. Right of Private Defence(Opens in a new browser tab)
2. Abetment of Suicide: Meaning, Essentials, Burden of Proof & Presumption(Opens in a new browser tab)