We are well aware that to constitute a criminal liability, there must be the men’s rea (guilty mind) and actus reus and strict liability applies only when the objective of the act gets frustrated. But what happens in a case where the person is forced to do something by threat?
It’s clear that in that case, the person performed actus reus but not men really. So, What should be done? Whether the person is going to exonerate himself from criminal liability?
To get the roadmap of the aforementioned issue, we will read section 94 of the Indian Penal Code which will delve into the matter of acts done by a person who is compelled by threats.
Section 94 of Indian Penal Code
This section states that if a person performed act compelled by threat (except murder and offence against the state) is not punishable if, at the time of occurrence, it was reasonable to believe that the person did because of the fear of instant death. And there would be the probability that he denies then the consequences would be his instant death. But we know how well people manage antidote for everything.
So, to minimize the misuse of the defence, the proviso has been added to the section which reads as – the person will be given the benefit of his section only if he was threatened and the apprehension of harm was about instant death, i.e., only if a person performed act compelled by threat.
For instance – If a person joins a gang of dacoits by the threat that if he denies the offer then gang of dacoits by the threat that if he denies the offer then he will be beaten. So in such a case, the person can’t claim for the benefit because there was no fear of instant death. While if a person was seized by a gang of dacoits and was put in fear of instant death then he can exonerate himself from the criminal liability.
Ingredients of Section 94 of Indian Penal Code
It is clear that every threat doesn’t provide immunity from punishments. There are certain grounds on which a person can avail the defence –
1. There must be a Non-Voluntary Act
In R v. Hasan(2005) UKHL22, the House of Lords held that if the accused is voluntarily associated in criminal activities then the immunity can’t be admissible.
- There must be a fear of instant death, the accused must be put into the situation where he is left with no other option.
- The person himself was threatened.
- The person who was threatened should not place himself in such situations. For instance- A person can’t exonerate himself by saying that he committed theft because of poverty.
In Case of False Evidence
Neale Donald Walsch well said the ‘Fear’ is an acronym in the English language for “False Evidence appearing real”. So, here he wants to explain that there is a relationship between fear and false evidence. Without making this article tedious, we will see how the Judiciary reacted to the case where false evidence was given due to fear.
Case law- R v. Hudson and R v. Taylor (1971) 2 All ER 244
Fact- Two accused i.e Miss Hudson and Miss Taylor were forced to give false evidence and we’re threatened to kill them if they deny.
Held- It was held that the accused were having alternatives under the circumstances but they choose to give false evidence which is sufficient to justify question act and the question of fact us whether the threats were effective at the time of occurrence. It was also held that the threats should be of instant death.
We will delve into the Malaysian Case – Tan Paeng Ann v. Public Prosecutor(1949)
In this case, the court of appeal held that a person can take the defence only if the threat is imminent, extreme and persistent. Other requirements are not important.
The Supreme Court of Canada was strict in the interpretation of the defence of duress.
In R v. Razic(2001), the Supreme Court of Chanda held that a person can’t avail the defence on the ground of immediate change. Albeit they replaced the word imminent because the word is flexible I. Interpretation.
The Court of Malaysia and Canada stressed on Instant death, the physical presence of threateners were not required but in Singapore, the presence of the threateners near the accused is required.
So, it’s crystal clear that everyone can’t wear the cloak of immunity if he performs the Act Compelled by Threat. The Court by its judgements gave the guidelines that the person should be given immunity only if he has no other alternative left with him, along with his he was compelled by threat of instant death. On a global level, every country has its own rules. Some are strict and others flexible. But few things are common – instant threat and presence of threatener.