Legal Provisions of Section 88 of Indian Penal Code, 1860.
Act not intended to cause death, done by consent in good faith for person’s benefit:
The section, along with sections 89 and 92 of the Code, deals with acts done for the benefit of others whereas section 93 deals with communication made for the benefit of a person. Therefore, these sections 88, 89, 92 and 93 should be read together to understand the similarities and dissimilarities of these provisions.
ADVERTISEMENTS:
The section states that when something is done by a person which may cause any harm to another, or where the intention of the doer is to cause harm to another, or where the doer knows that harm is likely to be caused to another, the same does not amount to an offence if the act is done for the benefit of the other in good faith and he has given express or implied consent to suffer that harm, or to take the risk of that harm, and provided the doer has no intention to cause death. The authors of the Code observed:
“It is often the wisest thing that a man can do to expose his life to great hazard. It is often the greatest service that can be rendered to him to do what may very probably cause his death. He may labour under a cruel and wasting malady which is certain to shorten his life, and which renders his life, while it lasts useless to others and a torment to himself. Suppose that under these circumstances he, undeceived, gives his free and intelligent consent to take the risk of an operation which ………… in a large proportion of cases has proved fatal, but which is the only method by which his disease can possibly be cured, and which, if it succeeds, will restore him to health and vigour. We do not conceive that it would be expedient to punish the surgeon who should perform the operation, though by performing it he might cause death, not intending to cause death but knowing himself to be likely to cause it.”
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The explanation under section 92 of the Code specifically states that mere pecuniary benefit is not benefit within the meaning of this section and sections 89 and 92 of the Code. The expression ‘good faith’ has the same meaning as is given under section 52 of the Code.
ADVERTISEMENTS:
In R.P. Dhanda v. Bhurelal, the appellant, a medical doctor, performed an eye- operation for cataract with the patient’s consent. The operation, however, resulted in loss of sight. It was held that since the doctor had acted in good faith for the benefit of the patient, he was protected under section 88 of the Code.
In G.B. Ghatge v. Emp.? the accused, a school teacher, gave five or six strokes by cane to a boy student about fifteen years of age who was found guilty of misconduct in his class. The court held that the teacher could not be held guilty under section 323 of the Code as he had acted in good faith for the benefit of the boy, and as delegate of the parent he was protected under section 88 of the Code since the punishment was to correct the boy and to maintain school discipline for which the parent or guardian must be held to have an implied consent. If, however, a teacher uses unreasonable and immoderate force against a student, he cannot be protected under this section and his act cannot be held to be done in good faith.
Where a kaviraj operated a patient with his consent to cure him of internal piles and the patient died, section 88 of the Code could not be held to be applicable as the act of the kaviraj cannot be held to have been done in good faith as defined under section 52 of the Code because a kaviraj has no legal competence to perform surgery.
Similarly, where a Homoepathic doctor administered to a patient suffering from gunie worm twenty four drops of stramonium and a leaf of dhatura without studying its effect and the patient died, the act could not be said to be done in good faith and this section did not apply.
ADVERTISEMENTS:
In Deepa v. Sub-Inspector of Police? the Kerala High Court has held that sections 87 and 88 of the Code cannot be held to be applicable in cases where interest of the society is involved. Consequently, persons attending cabaret shows in hotels and restaurants are competent to complain about annoyance caused by obscenity of the performance even though they knew beforehand that such performances might include acts of obscenity punishable under section 294 of the Code.
