The defence provided under this section is also known as the defence of compulsion, or of duress, or of coercion. At the outset the section exempts from its purview the cases of murder and offences against the State punishable with death. Consequently, this defence is not available where a murder or an offence against the State punishable by death has been committed under compulsion.
The section says that except these cases, when something is done by a person who is compelled to do it by threats, which, at the time of doing it, causes a reasonable apprehension in the mind of the doer that if he does not do it instant death to him may result, his act does not amount to an offence.
The proviso clause under this section states that this defence is not available where the accused has done the act of his own accord by placing himself in such a situation by which he became subject to such constraint or from a reasonable apprehension of harm to himself short of instant death, he has placed himself in such a situation. The first explanation attached to the section states that if a person joins a gang of dacoits of his own accord Knowing their character, or he does so under a threat of being beaten, this defence will not be available to him.
The second explanation appended to the section says, on the other hand, that if a person is seized by a gang of dacoits and is forced under threat of instant death to do something, such as a smith under such circumstances compelled to take his tools and to force open the door of a house for the dacoits to enter and plunder it, his act does not amount to a crime.
The basis of the principle under this section is the famous maxim ‘acts ne invito factus est mens actus’ which means an act which is done by me against my will is not my act. The defence is not available in murder cases because of the principle ‘to save one’s own life no one is entitled to take another’s life’.
Similarly, the defence is not available in cases of offences against the State punishable with death because of the principle that State has to protect the interest of the community at large and consequently has a right to effect its own preservation.
Murder is defined under section 300 of the Code. The defence of coercion under this section is not available to a person who commits murder under fear of instant death. Any other offence (except offences relating to State punishable with death) including culpable homicide not amounting to murder committed under threat of instant death is protected. It has been held that abetment of murder being different from murder, a person charged with having abetted a murder is entitled to the benefit of this section if he has been compelled to abet murder under fear of instant death.
Offences against the State punishable with death
The section does not protect a person who commits offences against the State punishable with death even though committed under fear of instant death. Sections 121 to 130 of the Code relate to offences against the State but punishment of death in such cases has been provided only under section 121 and consequently the defence of coercion is not available when the act of the accused falls under section 121 of the Code.
There are three kinds of offences provided under section 121—waging war against the Government of India, attempting to wage such war and abetting waging of such war. A person is not protected under section 94 of the Code if he commits either of these three offences even under fear of instant death.
For this section to apply it is necessary to prove the existence of fear of instant death. Any other kind of fear, including fear of distant and not instant death, does not provide any protection under this section. For instance, if A threatens Â that he would kill him in a week’s time unless he steals Z’s car by then, and Â steals the car, Â is not protected under this section.
The Indian Penal Code (Amendment) Bill, 1972 vide clause 31 had recommended the widening of the scope of section 94 of the Code by including within it the threat of instant death or instant grievous bodily harm either to that person or to any near relative of that person present when the threats are made. The Bill sought to include parent, grandparent, spouse, son, daughter, sister, brother, son-in-law, daughter-in-law and grand children within the expression ‘near relative.’ The Bill, however, never saw the light of the day.
Under the English Law the defence of duress is available not only in cases of fear of instant death but also in cases of fear of instant serious bodily harm. The threat also may not be against the person of the accused always.