Mg Moe Yan Htet

General Exceptions
Introduction
Under the Myanmar Penal Code, general exceptions are provisions that excuse
individuals from criminal liability in specific circumstances. These exceptions recognize that
certain actions, though seemingly unlawful, may not be amount to punishment due to factors
like lack of intent, mental incapacity, necessity, or valid consent. They aim to ensure justice
by accounting for the complexity of human behavior and situational factors.

Nature of General Exceptions

The conventional explanation of the elements of criminal liability is that a crime
consists of two main parts, both of which must be proven before a person can be convicted of
having committed the offence. It is usually said that it is a 'general principle' of the criminal
law that a person cannot be convicted of a crime unless the person: (1) engages in conduct
that is forbidden by the criminal law, and (2) does so with a guilty state of mind.1
General exceptions relating to the act done by a person bound by law may be grouped
together as follows;
(1) Justifiable exceptions
(2) Excusable exceptions.
Justification means, the act by which a party accused shows and maintain a good and
legal reason in court, why he did the thing he is called upon to answer
Justifiable exceptions are Those exceptions in which crimes committed are wrongful
in normal conditions but due to different circumstances, it was considered to be tolerable and
acceptable to everyone are said to be justifiable exceptions.
Excuse means a reason alleged for the doing or not doing a thing. The excusable
exceptions act. are mistake, accident, infancy, unsound mind, intoxication.2
Section 77 of the Penal Code provides exemption for judicial acts of a judge acting
judicially in exercise of his power or acting in good faith and believing that such power is
given by law to him. The acts must have been done in discharge of official duties. They must
be within his jurisdiction.However, it must be performed in good faith.Exemption is available
in case of irregular exercise of power or excessive use of jurisdiction. This principle is to
sustain the Independence of judiciary.3Also under section 78 of Penal Code, when an act
done pursuant to the judgment or order of Court.
In the case of U Tun Aye and two V. The Union of Myanmar,3 as a judge, he will get
exception from Section 77 in the exercise of any power which is, or which in good faith he
believes to be, given to him by Law. Knowing exactly, the action done without entitlement
and which is unable to defend for truth cannot be protected by this section. As the court itself
knowing being able to grant exemption to the disposal of tenancies committees but did not

1
Murugason, Mc Namara, Outline of Criminal Law, 8th edition, 1997, P.18
2
https://blog.ipleaders.in/general-exceptions-under-indian-penal-code/#Excusable_and_Justifiable_Exceptions
3
https://www.mcrhrdi.gov.in/89fc/week7/L%20-%20General%20Exceptions%20under%20IPC.pdf
give it and take action in criminal case, this sort of action of township administrative officer
cannot be exempted by this section.4
Consent
According to Section 87 of Penal Code, 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
be likely to cause to any such person who has consented to take the risk of that harm.5
According to Section 88 of Penal Code, nothing is an offence when an act not
intended and not known to be likely to cause death or grievous hurt, done by consent.
According to Section 89 of Penal Code, nothing is an offence when an act not
intended to cause death, done by consent in good faith for person’s, benefit.
First. - That this exception shall not extend to the intentional causing of death, or to
the attempting to cause death;
Secondly. - 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 of the curing of any grievous disease or infirmity;
Thirdly. - 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;
Fourthly. - That this exception shall not extend to the abetment of any offence, to the
committing of which offence it would not extend.6
Under section 90 of the Penal Code, it is not consent when it is known to be given
under fear or misconception.

Communication, Duress , Trifles and Private Defence

Under Section 93 of Penal Code, nothing is an offence when the communication
made in good faith.According to section 94 of Penal Code, nothing is anoffence when an act
to which a person is compelled by threats. Section 95 of Penal Code expresses that nothing is
a offence when an act causing slight harm that no person with ordinary sense complain of
such harm.
According to section 96 of Penal Code, Nothing is an offence which is done in the
exercise of the right of private defence. Section 97 of Penal Code expresses that, The right of
private defence of the body extends, under the restrictions mentioned in the last preceding
section, to the voluntary causing of death or of any other harm to the assailant, if the offence
4
1966, B.L.R (S.C.C.A.C) 27.
5
Section 87 of Penal Code
6
Section 89 of Penal Code
which occasions the exercise of the right be of any of the descriptions hereinafter
enumerated, namely:–
First. - Such an assault as may reasonably cause the apprehension that death will otherwise be
the consequence of such assault;
Secondly. - Such an assault as may reasonably cause the apprehension that grievous hurt will
otherwise be the consequence of such assault;
Thirdly. - An assault with the intention of committing rape;
Fourthly. - An assault with the intention of gratifying unnatural lust;
Fifthly. - An assault with the intention of kidnapping or abducting;
Sixthly. - An assault with the intention of wrongfully confining a person, under
circumstances which may reasonably cause him to apprehend that he will be unable to have
recourse to the public authorities for his release.7
In th case of The Socialist Republic of the Union Of Myanmar V. U Gyi Maung 8, it
was held that although it is provided in section 100 of Penal Code , the right of private
defence of the body extends to to the voluntary causing of death or of any other harm to the
assailant when such an assault as may reasonably cause the apprehension that death will
otherwise be the consequence of such assault, and also in Section 103, where the the right of
private defence of property extends, to the voluntary causing of death or of any other harm to
the wrong-doer in the case of robbery or house breaking by night, that right cannot not be
used under the restrictions mentioned in section 99 because the right of private defence in no
case extends to the inflicting of more harm than it is necessary to inflict for the purpose of
defence. The defend stabbing four times with spear to the unarmed person is clearly over
using the right of private defence.

Excusable Exceptions
Excuse means a reason alleged for the doing or not doing a thing. An excusable act is
the one in which though the person had caused harm, yet the person should be excused
because he cannot be blamed for the act. The excusable exceptions act. are mistake of facts,
infancy, unsound mind, intoxication and accident.
Mistake Of Fact
According to section 76 of Penal Code, nothing is an offence which is done by a
person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in
good faith believes himself to be, bound by law to do it. Section 78 also expesses that
Section 76 and 79 deals with mistake of Fact as a defence to the offence. According to
this exception, a person can be excluded from conviction if the act done by him was not
intended i.e., the accused had no mens rea to perform that act. This concept is based on the
Latin maxim of ignorantia facti excusat. The condition required for attracting this Section is
7
Section 100 of Penal Code
8
The Socialist Republic of The Union Of Myanmar V. U Gyi Maung 1982 MLR p.31
that if the circumstances and the facts were known then the act committed by the accused
might have been preventive in doing that action. This defence is mostly provided when proof
of intention or foresight is unnecessary.
Also, although an act may not be justified by law, yet if it is done under a mistake of
fact, in good faith under the belief that it is justified by law will not be an offence. The
question of good faith is always a question of fact to be determined in accordance with the
proven facts and circumstances of each case.
The Act Of Infancy
According to the Section 82 of the Myanmar Penal Code, nothing is an offence which
is done by a child under seven years seven years of age. under section 83 of Penal Code ,
nothing is an offence which is done by a child above seven years of age and under twelve,
who has not attained sufficient maturity of understanding to judge of the nature and
consequences of his conduct on that occasion.
The Act of Unsound Mind and Intoxication
According to section 84 of the Penal Code, nothing is an offence which is done by a
person who, at the time of doing it, by reason of unsoundness of mind, is incapable of
knowing the nature of the act, or that he is doing what is either wrong or contrary to law.9
In the case of Khine Maung V the Union Of Burma 10, in case of murder the appellant
has been pleaded that he was incapable of knowing the nature of the act or that he was doing
what was either wrong or contrary to law. In such case, the burden of proof lies on the
appellant to prove his unsound mind but he fails to prove. This case does not fall within the
meaning of section 84 of the Penal Code. So the court dismissed the appeal.
Accident
According to Section 80 of Penal Code, nothing is an offence, which is done by
accident or misfortune, and without any criminal intention or knowledge, in the doing of a
lawful act in a lawful manner by lawful means and with proper care and caution.
An accident has been classified as excusable since the act lacks intention or
knowledge and is done in a lawful manner by lawful means with due care and precautions.
All these ingredients have to be satisfied to attract this defence. Lack of intention and
knowledge is held to be the exculpatory factor. In this case, a man shot another person
thinking it to be a hyena. The fact that it was raining allowed the person to successfully plead
the defence of the accident. The court acquitted him since he lacked the knowledge that a
man was present at that place.11

Conclusion

9
Section 84 of Penal Code
10
Khine Maung V the Union Of Burma 1965 B.L.R p.328.
11
https://meral.edu.mm/record/9502/files/Khin%20Khin%20Su(75%20to%2084).pdf
 In conclusion, the general exceptions in Myanmar's Penal Code provide essential
safeguards by recognizing that not all actions which might be considered offenses are
criminal if performed under specific circumstances, such as self-defense or necessity. These
provisions ultimately aim to ensure that justice is served by considering the intent and context
of actions, thus preventing undue punishment for actions taken under extreme or extenuating
circumstances. Understanding and applying these exceptions properly are crucial for a fair
and balanced legal system.