By: Robin Pandey Date: 11/03/2022
Section 85 applies only to involuntary and not voluntary drunkenness. Section 85 reads as follows:
"Act of a Person incapable of judgment by reason of intoxication caused against his will”:
Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law; Provided that the thing which intoxicated him was administered to him without his knowledge or against his will."
In order to claim exemption from criminal liability under Section 85 the accused has to establish that:
(1) at the time of doing the act by reason of intoxication he was incapable of knowing
(i) the nature of the act; or
(ii) that he was doing what was either wrong or contrary to law; and
(2) that the thing which intoxicated him was administered to him without his knowledge or against his will.
Involuntary Intoxication: "Without his Knowledge" or "against his Will
The law does not protect all sorts of drunkenness; nor does it protect drunkenness as such. Section 85 comes into operation only when any person is served any intoxicating substance "against his will or without his knowledge". The words "against his will'" mean that the person was forced or coerced into consuming an intoxicant. Normal persuasion acting as an incentive is not covered by the expression "against his will", unless there is an element of compulsion to consume the intoxicant against his will. The expression "without his knowledge" means ignorance of the fact that what is being administered is or contains or is mixed with an intoxicant. Consequently where the intoxicant is administered to the accused by stratagem or fraud of another, as when mixed with his food or drink, and given to him in confidence, he is excused. Where a person deliberately plans a criminal act, and gets drunk to overcome any element of cowardice, and commits any act which is an offence, he would not be protected by law. No person can be allowed to take shelter of the exemption under the guise of "intoxication" as no person can be permitted to disguise his criminal acts as the acts of a person of unsound mind.
Involuntary Drunkenness per se is no ground of exemption
It would be no ground of excuse for crime merely to plead involuntary drunkenness. To be a ground of exemption, the involuntary drunkenness must answer one of the three tests given in the Section. The accused must show that he was so drunk that he did not know either: (a) the nature of the act; or (b) that it was wrong; or (c) that it was contrary to law. Hence, the correct test is whether by reason of involuntary drunkenness, the accused was incapable of forming an intention of committing the offence. In Bablu v. State of Rajasthan, (2007), the Supreme Court laid down three propositions as regards the scope and ambit of Section 85, IPC which are as follows:
(1) The insanity whether produced-by drunkenness or otherwise is a defence to a crime charged.
(2) Evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into account with the other facts proved in order to determine whether or not he had this intent; and
(3) The evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime and merely establishing that his mind is affected by drink so that he more readily give to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts.
Onus of Proof: The onus to bring the protection of Section 85 is squarely upon the accused who has to prove that intoxication envisaged was such that he was incapable of forming the specific intent essential to constitute the crime. When he fails to establish the plea by preponderance of probabilities he cannot come within the general exception of Section 85.