Consent in criminal Law – Latest 2021

CONSENT IN CRIMINAL LAW

INTRODUCTION

‘Consent’ is the active expression of Intention. However there are numerous stages through which consent is passed such as volition, will, intention but the ultimate mental expression signifying a desire to do an act is ‘consent’. Before answering the ‘consent’, a human being keeps on thinking, it is the individual area of a person which is unblameworthy or unpraiseworthy but whenever a person expresses his/her desire for any target, such conduct becomes the subject matter of other’s concern. In other words, this is the stage where a desire of the person comes in the worldly area where law starts to operate[1].

Under criminal law, the term consent is an active expression of ‘intention’. The crime has two essential ingredients (1) actus rea and (2) mens rea. Actus means an act done by the wrongdoer, whereas mens rea means the intention of doing that particular act. A person will be criminally liable for all the acts that he had done with the intention or knowledge of doing it and possibly know the consequences of his acts[2].

CONSENT IN CRIMINAL LAW

What is consent?

In general, consent means something done intentionally or purposefully and by free will.  It involves a deliberate intelligence exercise based on the knowledge of the value and legal effect of the act. It is an act of thought, followed by deliberation, balancing the mind on each hand, as in a circle, the good and the bad. It assumes three things— a physical power, a mental power, and their free and serious use.

Consequently, consent obtained through intimidation, force, mediated imposition, circumvention, surprise or undue influence is merely an illusion rather than a deliberate and free act of the mind. There is no definition of the word ‘consent’ in the IPC. [3]  But the section 90 of Indian Penal Code talks about what does not is Consent.

Section 90[4]

Consent under section 90 is defined in negative term. Accordingly, a consent intended by the code is not as such consent:

Consent is known to be given under fear or misconception.—A consent is not such a consent as it intended by any section of this Code if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.

Consent of insane person – If the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent.

Consent of child – If it is given by a person who is under 12 years of age

Section 90 states that consent is given by a person’ under fear of injury’ or ‘under the misconception of fact’ is not at all ‘consent’. Similarly, consent given by a ‘person of unsound mind’ or an intoxicated person who is unable to understand the nature and consequences of the consented act and a person under the age of 12 is not a valid consent, unless the contrary appears from the context.[5]

Misconception of fact-

A consent given under misconception of fact has no value. It is a consent given on misrepresentation of fact. Misconception of fact refers to misconception regarding the true nature of the act. A misconception may arise out of fraud or misrepresentation of facts. A music teacher obtaining a girl’s consent regarding sexual intercourse in order to improve her voice.[6]

An honest misconception by both the parties, however, does not invalidate the consent.

Jayanti Rani v. State of West Bengal[7]: – It was held that “consent for sexual intercourse obtained on a promise to marry in the future and its failure by the accused cannot be said that it was induced by misconception of fact unless from the very beginning the accused never really wanted to marry the girl who consented to sexual intercourse until she became pregnant on the promise of marriage”.

Two requirements for the enforcement of the first part of s 90 must be met, namely, firstly, that consent was given on the grounds of ‘ fear of injury ‘ or ‘ presumption of reality, and secondly, that the defendant was aware of the fact or had reason to believe that consent was given on the grounds of fear or misconception.

Importance of Consent: –

Consent plays a very important part in criminal law, so much so that its absence or presence makes a world of difference between crime and innocence. For example, consent of a women over 18 years to an act of sexual intercourse makes it no offence, but without such consent the act become very serious offence, that is, an offence of rape.[8]

Section 87: –

The Indian Penal Code: Act not intended and not known to be likely to cause death or grievous hurt, done by consent– Nothing which is not intended to cause death or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm;

or by reason of any harm which it may be known by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm.[9]

Illustration

A and Z agrees to fence with each other for amusement. This agreement implies the consent of each to suffer any harm which, in the course of such fencing, may be caused without foul play; and if A, while playing fairly, hurts Z, A commits no offence.”

Section 87 does not allow a person to consent to anything intended or known to be likely to cause death or grievous hurt.

Games and sports: –

Section 87 protects person accused of injuring others in the course of games, sports such as fencing, football, cricket, boxing and others.

Bishambar v. Roomal[10]:- a girl was molested by the complainant. Approximately 200 people were determined to punish him armed with lathis. Three local people interfered at that time and tried to bring about a solution. We were gathered before the panchayat along with others who were gathered before the panchayat along with others who were the girl’s family. The plaintiff decided to request the panchayat’s order.

The panchayat decided to take him around the village with a blackened face and hit him with a shoe to prevent any injury to the complainant. The panchayat’s decision was thus carried out, the three intervening persons and the other girl’s relatives were prosecuted for crimes punishable under section 323 and 503 of the Code.

The Allahabad High Court held that “the accused were entitled to the benefit under section 81 and 87 of the Code. In a case like this when the accused persons acted bonafide, without any criminal intent in order to save the complainant from the serious consequences resulting from his own indecent behaviour, with his consent, obtained in writing and for his benefit, then it may not amount to an offence.”

Section 88[11]

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.[12]

Surgeons and teachers: –

Section 88 protects doctors, surgeons and surgical operation as well as reasonable acts of teachers. The case of Ghatge[13] supports this point. In this case A, a high school student, on being found unruly was sent out of the class. The school principal accosted A and the teacher and asked A’s explanation to which A remained silent. He was asked to apologize to his teacher, but A refused to do so.

The principal, therefore, administered four or five cuts with a cane upon A’s hand. It was held that the case is covered under section 88 and principal has committed no offence under section 323 of IPC. Administering in good faith, moderate and reasonable corporal punishment, to a pupil to enforce discipline in school is therefore, protected under section 88.

Section 89[14]

Act done in good faith for the benefit of child or insane person or by consent of guardian- nothing which is done in  a good faith for the benefit of the person under 12 year 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 of 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 provided-

  1. That this exception shall not extend to the intentional causing of death, or to the attempting to cause death;
  2. That this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity;
  3. That this exception shall not extend to the voluntary causing of grievous hurt, or to the attempting to cause grievous hurt, unless it be for the purpose of preventing death or grievous hurt, or the curing of any grievous disease or infirmity;
  4. That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend.

Expressed or Implied Consent-

Consent may be express or implied under the section. So long as there is consent and the said is voluntary, it should not be conveyed in so many terms or structured explicitly. In so far as criminal law is concerned, the term implied is used to mean or in any way signify: (1) by acts and behaviour; or (2) presumed, but never given or anyway meant.

When a customer enters a shop and picks up displayed goods for sale, consent is implied to enter the shop, handle the goods and, if necessary, purchase them. This denotes through actions and behaviour[15]

 

Evidence –

The question of whether or not consent has been given is always a matter of fact to be determined by leading evidence before the court of the trial. Therefore, concerns as to whether ‘consent’ has been received without the knowledge or by mistake or by mistake or deception, or whether there has been a prior implied consent, are empirical issues that must be proven by the defendant who wishes to take advantage of s 87, 88 and 89[16].

 

-Mayank Raghuvanshi

 

 

Sources-:

[1] https://shodhganga.inflibnet.ac.in/bitstream/10603/129450/9/09_chapter%201.pdf

[2] https://blog.ipleaders.in/consent-as-a-defence-under-i-p-c/

[3] https://www.legalbites.in/act-done-with-consent/

[4] Section 90 of IPC

[5] https://www.legalbites.in/act-done-with-consent/

[6] B.M. Gandhi’s, Indian Penal Code, 4th edition

[7] Jayanti Rani v. State of West Bengal 1984 Cri LJ 1535 (Cal).

[8] B.M. Gandhi’s, Indian Penal Code, 4th edition

[9] B.M. Gandhi’s, Indian Penal Code, 4th edition

[10] Bishambar v. Roomal (1975) 77 BOM LR 216

[11] Section 88 of IPC

[12] B.M. Gandhi’s, Indian Penal Code, 4th edition

[13] Emperor v. G.B. Ghatge AIR 1949 Bom 226

[14] Section 89 of IPC

[15] https://www.legalbites.in/act-done-with-consent/

[16] https://www.legalbites.in/act-done-with-consent/

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