DEFENCE OF DURESS

Introduction

Several offences are covered under the criminal law, and the punishment provided for each differs from case to case. The outcome differs in ways that the offender is sometimes not punished for the acts done by him, however, against the law. The Indian Penal Code, under Chapter IV titled ‘General Exceptions’, from Section 76 to 106 lists down the defences that are available for an accused to avoid criminal liability. The burden of proof for exceptions lies solely on the accused, and one must prove it beyond a reasonable doubt. As per Section 6 of The Indian Penal Code, all the sections along with their illustration must be read with these exceptions, and courts are under the duty to run the case through these defences, before propounding a judgment upon it.

Defence of Duress

Defence of Duress, under Section 94, is an exception, titled ‘act to which a person is compelled by threats. Duress stands for forcible restraint or restriction or compulsion by threat. Duress was defined by Blackstone as “threats and menaces which induce a fear of death or other bodily harm, and which take away, for that reason, the guilt of many crimes and misdemeanours.” Duress under IPC provides that, nothing is an offence committed by a person who is forced to do so by threats, and whose reasonable fear is immediate death. Thereby, any offence done out of compulsion by a danger to life is a defence from criminal liability. Here, the coercion is a restriction upon the desire of an accused, where man is urged to do what his consciousness condemns, and if the choice rested upon his free will, he would have rejected to do such an act. The defence of duress is found in a well-known legal maxim under criminal law, which is actus me invito factus non-est meus acts, which means that an act done by me, against my determination, is not my act and therefore I am not accountable for consequences arising from it. Thus, it is justified that a man shall be exempt when his acts were done against his will, bound by compulsion, where his life was at stake. From the close reading of Section 94, it is found that this defence does not apply to strictly two offences under the Indian Penal Code, that is murder of another human being and felonies against the state which are indictable with death.  An individual who commits the death of another person under the threat of instant death is not allowed to take the defence of this exception, the contention being, that a man cannot take another man’s life to protect his own. This defence does not apply to the murder of another human, no matter what the accused did himself or participated with others in its commission. But offences, such as abetment to murder, and removal of evidence under the risk of immediate death are entitled to protection under this section. A crime against the state punishable by death is another exception to the defence of duress. Under Section 121 of the Indian Penal Code, there is just one such offence: waging or attempting to wage war, or abetting such war, against the government of one’s nation. This is founded on the premise that an individual should keep the sovereignty and tranquillity of his country above his own life. As a result, even before pressing the gun, where one’s life could be taken away in an instant, one should not conduct war against his country or government.

Elements ofdefence under Section 94
  • The risk of instant demise:

To successfully obtain defence from criminal liability under this section, the compulsion created by the threat must be the threat of instant death. An instance where if the accused fails to commit the prescribed offence by the coercer or rejects to do it, the result should be instant death of the person. The burden of proof is comparatively high for this defence, as if the accused fails to prove the risk of instant death, the protection seizes to apply. If the threat was previously operational, but subsequently fails to exist at the stretch when the wrongdoing was done, or if such threat was meant to be executed at any future time or date, this exception fails to apply, and the accused will be criminally liable as any wilful offender. The threat must be strong and well-articulated to convey the prospect of sudden death. A threat of sudden death is not regarded as a threat of the higher-order, or duress produced by monetary or personal injury. It has been established that if the accused had a reasonable belief at the time of the act that he would die instantly if he denied or failed to undertake the act, then such reasonable belief is sufficient to assist the accused in obtaining exoneration from criminal culpability.

  • Threat to be present at the point of doing the act:

One of the most important elements of the threat of instant death to the accused is that it must be existing at the moment when the crime was committed. The timing of the threat and its execution is the key because if it is meant to be executed at any upcoming point in time, or if it is apparent that the threat cannot be affected at that moment, the protection provided under Section 94 will be unsuccessful. There should be apparent understanding and circumstances that conclude the threat to be executable without much delay.

  • The accused did not place himself in that situation

As provided in the proviso clause of Section 94 of the Indian Penal Code, it is of utmost significance, that accused must prove that he was not present in such a situation where he was compelled to commit an offence as a consequence of his action. A person must not do anything of his own accord that places him in a problematic situation, where he should either commit offence or lose his life. It is also important that reasonable apprehension of harm should not be less than losing one’s life at the very instant. There should be an immediate threat to the life of the accused. Explanation 1 of Section 94 is an illustration of the proviso clause, which mandates that a person stepping into any situation where he is compelled to commit an offence by his own will, will not be defended from criminal liability and no protection shall be provided to them. The explanation says that, if a person is treated with the threat of being beaten, he decides to join the gang of dacoits, who end up murdering someone, will not be entitled to any exception on the ground that he was compelled to commit such an offence by his associates.

Judicial Precedents

In the case of R vs. Sharp, this defence was not permitted to an individual who voluntarily joined a criminal organization or gang with knowledge that the gang used loaded firearms to carry out robberies at the post offices and that the gang leader might bring pressure upon him to participate in such offences. Accordingly, he participated in a robbery under pressure in which the leader shot dead the supposed master.

In Emperor v. Autar, the accused participated in removing the corpse of a person following the murder of the accused’s mother, and under the master’s threat of killing him if he refused to assist him in removing the dead body, the accused was exempt from punishment under this chapter.

CONCLUSION

The defence of duress or compulsion is one of several defences provided under an exception in the Indian Penal Code, 1860. These defences help an accused to establish a contention that supports their innocence and eventually disproves the employment of mens rea in any offence. Under defence of duress or compulsion, the accused pleads that he was under severe threat of loss of his life, and under such threat, he committed the said offence. This defence however has limited application, and it cannot be used as a defence in cases where the accused has murdered another man to save his life, or the accused has committed any crime against the nation which is punishable with a sentence of demise. Only one offence under Section 121 provides a death sentence for offences against the state. This defence is based on one highly well-known principle under criminal law, which states that an act done against the will of the doer, by the doer, is not his action, and he should not be held liable for it.

Author(s) Name: Huda Naaz (Faculty of Law, Aligarh Muslim University)