Write a short note on Doli incapax and Doli capax.
According to the criminal jurisprudence, an accused can be held liable to commit any offence only if he commits that offence with a particular intention. So, it means that an intention plays a very important role while holding the accused liable. But according to the provisions of Indian Penal Code, 1860, a person of a particular age can form a malice intention and if a person has not completed that age, then in such a case, even if he commits a crime, it will be considered that he cannot be held liable only because he is unable to form a malice intention.
Section 82 and 83 of the Indian Penal Code, 1860, deals with these kinds of provisions and Section 82 of the Indian Penal Code, 1860, is based upon the principle of doli incapax whereas section 83 of the Indian Penal Code, 1860, is based upon the principle of doli capax.
In general sense, the doctrine of doli incapax means incapable of wrong. According to this doctrine, if a person is under the age of seven years and he commits the crime, then in such a case, this doctrine will be applicable and that person will not be held liable.
According to this doctrine, it is always presumed that a child under the age of seven years is not capable to understand the consequences of his own act. That is why, it is presumed that he cannot form a malice intention.
In the leading case of Hiralal Mallick v. State of Bihar (1977), the Hon’ble Supreme Court held that if a crime has been committed by a child under the age of seven years, then in such a case, he will not be held liable and the doctrine of doli incapax will be applicable in this case.
In the leading case of Shyam Bahadur Koeri v. State of Bihar (1967), a child aged below 7 years found a gold plate and did not report this fact to the Collector. After getting knowledge of the aforesaid fact, the Collector ordered the prosecution of the child under the Indian Treasure Trove Act, 1878. The Court held that the child being under 7 years of age is doli incapax and thus entitled to benefit of Section 82 of I.P.C. and ordered his acquittal.
Whereas, section 83 of the Indian Penal Code, 1860, is based upon the doctrine of doli capax and according to this section, if any child who has completed the age of seven years but under the age of twelve years, commits any crime, then in such a case, it will be determined by the court that whether at the time of commission of crime, the child had attained sufficient maturity of understanding to judge the nature and consequences of his act and if court finds out that he had sufficient maturity, then in such a case, he will be held liable otherwise he will be given acquittal by the court of law.
In the leading case of Ulla Mahapatra v. The King (1950), the appellant Ulla Mahapatra, a child of 11 years of age advanced towards the deceased holding a knife in his hand with a threatening gesture saying that he would cut him into pieces and thereafter struck him on the neck due to which the deceased died on the spot. The accused was convicted under Section 302 I.P.C. and was sentenced to transportation. In appeal, the High Court of Orissa held him guilty of an offence under Section 302 I.P.C. and ordered that the accused be sent to a reformatory school for 5 years instead of sentencing him to transportation.
So, the main difference between Section 82 of the Indian Penal Code, 1860 and section 83 of the Indian Penal Code, 1860 is that Section 82 provides absolute immunity to a child who is under the age of 7 years and has committed any crime whereas section 83 of the Indian Penal Code, 1860, provides immunity to that child only who has completed the age of 7 years but under the age of 12 years and has committed any crime without having sufficient maturity of understanding the nature and consequences of his own act.