The principle underlying this section is ‘de minimis non curat lex’ or the law does not take account of trifles. The authors of the Code observed:
“Clause 73 (this section) is intended to provide for those cases which, though from the imperfection of language they fall within the letter of the penal law, are yet not within its spirit, and are all over the world considered by the public, and for the most part dealt with by the tribunals, as innocent. As our definitions are framed, it is theft to dip a pen in another man’s ink, mischief to crumble one of his wafers, an assault to cover him with a cloud of dust by riding past him, hurt to incommode him by pressing against him in getting into a carriage. There are innumerable acts without performing which men cannot live together in society, acts which all men constantly do and suffer in turn, and which is desirable that they should do and suffer in turn, yet which differ only in degree from crimes. That these acts ought not to be treated as crimes is evident, and we think it far better expressly to except them from the penal clauses of the Code than to leave it to the judges to except them in practice; for if the Code is silent on the subject, the judges can except these cases only by resorting to one of two practices which we consider as most pernicious, by making law, or by wresting the language of the law from its plain meaning.”
With the abovementioned object in view, the section lays down that if a person causes harm, or harm results because he has an intention to cause harm or knows that there is likelihood of harm being caused by him, such an act on his part would not amount to an offence if the magnitude of the harm is so small that a person of ordinary sense and temper would not complain of such harm.
There are innumerable acts being done everyday everywhere in the world which are ‘offences’ technically, but the law cannot and should not take cognizance of these because doing so would perhaps be impossible and would also harm the interest of the community irretrievably while at the same time burdening the courts unnecessarily.
Some such instances may be hustle and bustle in a crowded area like a busy market place where force is applied almost always by one against another in the form of pushes, goings on in a busy railway or bus station where even intentional physical contacts take place between persons, entering into the premises of another without authority with a view to drink water from a tap on the corner of the lawn there, and the like.
The section is applicable only when the ‘harm’ caused is so slight that a person of ordinary sense and temper would not complain of the same. The word ‘harm’ has not been defined by the Indian Penal Code under this section or elsewhere and, therefore, the Court has the authority to determine as to whether harm has resulted. The harm may be in the form of physical or even mental injury and may include financial or reputational loss.
In Mrs. Veeda Menezes v. Khan, during the course of exchange of high tempers and abusive words between the appellant’s husband and the first respondent, the latter threw a file of papers at the former which hit the appellant causing a scratch on her elbow.
The Supreme Court held that this section applied and observed that nature of the injury, position of the parties, intention or knowledge with which the act was done and other related circumstances are relevant considerations to determine as to whether a person of ordinary sense and temper would complain of the harm or not.
In Narayanan v. State? Sarvodaya workers were campaigning to educate people about the evils of alcohol. They were picketing liquor shops with a view to prevent people from going there. It was held by the Court that the charge of wrongful restraint under section 341 of the Code was not maintainable in view of the application of section 95 of the Code in the circumstances.
In re Ethirajan, is a case where the accused, a filing clerk in a company, gave to his creditor in 1953 a cheque drawn by him on the disbursement account of the company with another branch. Since this disbursement account had already been closed in 1944, the cheque book was of no value.
The Court held that even though unauthorised taking of the cheque by the accused amounted to theft, he could not be so convicted in view of the fact that the account having been closed long back the cheque book was of no value and, therefore, section 95 of the Code was applicable.
In Kishori Mohan v. State, the non-gazetted employees of a Block Development Office went on strike to press their demands. The complainant employee, a loyal worker, did not join in the strike and continued to work. This infuriated other employees. When the complainant was returning from work the accused employee garlanded him with shoes and made fun of him.
He was photographed in that state but the photograph was not shown to him or published. While convicting the accused under section 504 of the Code the Court held that section 95 of the Code was not applicable as it was not a trivial act. But a lenient view, perhaps not justified, was taken by the Court and the accused was merely admonished for the act.
Social welfare legislations
In District Food Inspector v. Kedarnath Chirania, the accused was found selling ‘dhania’ powder adulterated with turmeric starch. The lower Court applied section 95 of the Code and held that since the adulterant was found only in small quantity, the accused should not be convicted. The Gauhati High Court held that the lower Court was in error in applying section 95 to violations of social welfare legislations like the Prevention of Food Adulteration Act, 1954 and if any leniency is at all called for, it may only be in the matter of passing of sentence.
Similarly, in State v. Lobo Medicals, where the accused was prosecuted under section 3(2) (c) of the Essential Commodities Act, 1955, another social welfare legislation, read with para 15 of the Drugs (Price Control) Order, 1970 for selling some drugs at prices in excess of the prescribed prices, it was held that section 95 of the Code would not apply.
Deliberating over the matter of socio-economic offences the Law Commission of India in its 47th Report has also observed: “In the case of social and economic offences, what has been detected and brought before the Court is, more often than not, a surface manifestation of a poisonous spring of habitual misconduct running underground. Detection is particularly difficult in the case of social and economic offences. Gathering of information leading to prosecution is equally difficult and conviction much more so. Whatever may be the position as regards conventional crimes, the odds here are that it was by sheer luck that the offender has escaped detection of other crimes.”
Of the Right of Private Defence
In Chapter IV dealing with General Exceptions in the Indian Penal Code a separate sub-heading ‘of the Right of Private Defence’ has been put before section 96 of the Code.
A total of eleven sections, sections 96 to 106, have been put under this sub-heading. These sections deal with the law relating to the right of private defence very comprehensively.