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148 The Common Law in Indiaas to matters of fact would be available as a defenceto a crime. But ignorance of law cannot be adefence. 75 In substance mistake as a defence tocriminal liability at common law must amount eitherto the absence of mens rea in the accused or, wherethe act so warrants, the accused is treated as thoughhis harmful deed had not been an actus reus. Thelatter may be illustrated by the case of a personseizing another whom he reasonably though mistakenlysupposes to be committing a murder in orderto bring him before the proper authorities, though itmay in fact turn out that the person seized was actingin self defence. This indeed is the illustration whichis to be found in the provisions of the Indian Coderelating to the general exception of mistake. 78 As arule, however, mistake negatives mens rea rather thanactus feus. In some cases ignorantia facti is a gooddefence for such ignorance many a time makes theact itself morally involuntary." Mistake, however,must be of such a nature that had the circumstancessupposed to have existed by the person acting beenreal they would have prevented liability attaching tothe person doing the act. It would be no defenceif the supposed act would itself be unlawful. Themistake must also be a reasonable one. Finally themistake however reasonable must relate to matters offact and not to matters of law. Mistake as an exceptionto criminal liability has under the Indian Codein substance the same requirements. 78 The law Ibid., p. 284, para. 525. " s. 79." 1 Hale P.O. 42; Kenny, op. cit., p. 47, note 2.« ss. 76, 79.
Criminal Law 149provides expressly that the mistake has to be a mistakeof fact and not a mistake of law and the persondoing the act should have done it in good faith, which,as we have seen, imports due care and attention.That requirement introduces the idea that the mistakemust, as in English law, be a reasonable one. Astatute may of course expressly or by implicationexclude the defence of mistake. In such cases theexemption from liability will not be available in Indiaas well as in England.Husband and Wife : The presumption existed atcommon law, in the case of certain crimes, that wherea crime was committed by a wife in the presence ofher husband, the wife acted under the coercion ofthe husband. 79 The wife was supposed to be subjectto such powerful influences by the husband that shewas, in some cases which were not denned, excusedon the assumption that she was acting under thehusband's influence. 80 There was also assumed tobe such a community of interest between them thatneither could bring any criminal charge against theother except in regard to personal injuries inflictedby the one upon the other. 81 Nor could a husbandand wife in England be convicted of conspiracy ifthey were the only parties to it. 82The law, however, in England has been substantiallyaltered since the days of the enactment of the'» Halsbury, Laws of England, 3rd ed., Vol. 10, p. 291, para. 542.80 Stephen, Dig. Crim. Law, Art. 30; Brown v. Att.-Gen. forNew Zealand [1898] A.C. 234.« The Queen v. The Lord Mayor of London (1886) 16 Q.B.D.772; a case of private libel.82 Laila Jhina Mawji v. The Queen [1957] A.C. 126.
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THE HAMLYN LECTURESTWELFTH SERIESTH
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The Common Lawin IndiaBYM. C. SETAL
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CONTENTSThe Hamlyn Trust - - - - -
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THE HAMLYN TRUSTTHE Hamlyn Trust ca
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CHAPTER 1THE RISE OF THE COMMON LAW
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The Rise of the Common Law 3mixed u
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The Rise of the Common Law 5In orde
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The Rise of the Common Law 7and Cou
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The Rise of the Common Law 9observe
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The Rise of the Common Law 11Thus w
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The Rise of the Common Law 13the ch
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The Rise of the Common Law 15includ
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The Rise of the Common Law 17from t
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The Rise of the Common Law 19Suprem
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The Rise of the Common Law 21prefer
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The Rise of the Common Law 28made a
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The Rise of the Common Law 25In the
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The Rise of the Common Law 27one to
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The Rise of the Common Law 29the ru
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The Rise of the Common Law 81Later
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The Rise of the Common Law 33The fi
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The Rise of the Common Law 351872 o
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The Rise of the Common Law 37crimin
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The Rise of the Common Law 89requir
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The Rise of the Common Law 41King's
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The Rise of the Common Law 48steps
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The Rise of the Common Law 45as its
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The Rise of the Common Law 47The sy
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The Rise of the Common Law 49Suprem
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The Rise of the Common Law 51arbitr
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The Rise of the Common Law 53has be
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The Rise of the Common Law 55As ear
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The Rise of the Common Law 57by equ
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The Rise of the Common Law 59with c
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The Rise of the Common Law 61princi
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CHAPTER 2CIVIL LAWTHE first Law Com
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Civil Law 65country of the parties
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Civil Law 67be made by a will execu
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Civil Law 69advancement based on En
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Civil Law 71as to accommodate it to
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Civil Law 73to contracts." The cour
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Civil Law 75Consideration may under
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Civil Law 77similar to those of the
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Civil Law 791845" did not, however,
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Civil Law 81in the same case that '
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Civil Law 83a mistake of fact but a
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Civil Law 85could not prevent, unla
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Civil Law 87and also a provision to
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Civil Law 89Act. 57 Speaking of the
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Civil Law 91the legal relations of
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Civil Law 93the non-performance of
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Civil Law 95purchaser who is suing,
Page 109 and 110: Civil Law 97system on which the Act
Page 111 and 112: Civil Law 99Some of the provisions
Page 113 and 114: Civil Law 101The justification for
Page 115 and 116: Civil Law 108On the contrary, as we
Page 117 and 118: Civil Law 105to the contrary as ins
Page 119 and 120: Civil Law 107patents, copyright, bi
Page 121 and 122: Civil Law 109from the social duties
Page 123 and 124: Civil Law 111early as 1872 that in
Page 125 and 126: Civil Law 113in India. 16 However,
Page 127 and 128: Civil Law 115Dealing with the quest
Page 129 and 130: Civil Law 117textbooks was codified
Page 131 and 132: Criminal Law 119criminal law were b
Page 133 and 134: Criminal Law 121powers; though the
Page 135 and 136: Criminal Law 123legal member, full
Page 137 and 138: Criminal Law 125" It is working as
Page 139 and 140: Criminal Law 127law. Stephen though
Page 141 and 142: Criminal Law 129proposed that truth
Page 143 and 144: Criminal Law 131calendar of crimes
Page 145 and 146: Criminal Law 133religious life of I
Page 147 and 148: Criminal Law 135have also in the In
Page 149 and 150: Criminal Law 137a special meaning.
Page 151 and 152: Criminal Law 139I think, depend upo
Page 153 and 154: Criminal Law 141at a conclusion whe
Page 155 and 156: Criminal Law 143and coercion. Some,
Page 157 and 158: Criminal Law 145Infancy: Moral deli
Page 159: Criminal Law 147It was laid down in
Page 163 and 164: Criminal Law 151her husband who is
Page 165 and 166: Criminal Law 153by the ancient rule
Page 167 and 168: Criminal Law 155In India it is prov
Page 169 and 170: Criminal Law 157fall in Indian law
Page 171 and 172: Criminal Law 159wages war against t
Page 173 and 174: Criminal Law 161in the Indian Code.
Page 175 and 176: Criminal Law 163Large powers have b
Page 177 and 178: Criminal Law 165of certain offences
Page 179 and 180: Criminal Law 167as in England but t
Page 181 and 182: The Indian Constitution 169time to
Page 183 and 184: The Indian Constitution 171forces i
Page 185 and 186: The Indian Constitution 173the gene
Page 187 and 188: The Indian Constitution 175the cour
Page 189 and 190: The Indian Constitution 177Bills to
Page 191 and 192: The Indian Constitution 179head and
Page 193 and 194: The Indian Constitution 181of its c
Page 195 and 196: The Indian Constitution 183This vit
Page 197 and 198: The Indian Constitution 185authorit
Page 199 and 200: The Indian Constitution 187The comm
Page 201 and 202: The Indian Constitution 189of the p
Page 203 and 204: The Indian Constitution 191came int
Page 205 and 206: The Indian Constitution 193function
Page 207 and 208: The Indian Constitution 195rendered
Page 209 and 210: The Indian Constitution 197remedies
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The Indian Constitution 199India ha
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The Indian Constitution 201establis
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The Indian Constitution 203expressi
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The Indian Constitution 205It is st
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The Indian Constitution 207in Engla
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The Indian Constitution 209it means
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The Indian Constitution 211otherwis
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The Indian Constitution 213to prote
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The Indian Constitution 215use, enj
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The Indian Constitution 217natural
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The Indian Constitution 219health a
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The Indian Constitution 221are not
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The Indian Constitution 223In its p
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Epilogue 225exactly for the same re
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Epilogue 227it, and professors medi
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