Section 85 IPC and Section 23 BNS: Involuntary Intoxication and Criminal Liability
Section 85 of the Indian Penal Code, 1860 protected a person whose intoxication was caused without their knowledge or against their will, provided the intoxication made them incapable of understanding the nature or wrongfulness of the act. The corresponding current provision is Section 23 of the Bharatiya Nyaya Sanhita, 2023 (BNS).
Section 85 IPC: Original statutory provision
Heading: 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.
This is a general exception, not a separate offence or a punishment provision. Its focus is on involuntary intoxication and the person's capacity to understand the act at the relevant time.
Section 23 BNS: Corresponding provision under the current law
Section 23 of the Bharatiya Nyaya Sanhita, 2023, titled Act of a person incapable of judgment by reason of intoxication caused against his will, retains the substance of the former Section 85 IPC.
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.
Read the official BNS text on India Code (PDF) or the Ministry of Home Affairs new criminal laws portal.
Essential conditions for the defence
- Intoxication existed at the time of the act. Later intoxication does not establish the exception.
- It was involuntary. The intoxicating substance must have been administered without the person's knowledge or against their will.
- There was qualifying incapacity. Because of that intoxication, the person was incapable of knowing the nature of the act, or that the act was wrong or contrary to law.
- The facts support the exception. Mere consumption, reduced inhibitions, impaired judgment or an assertion of drunkenness is not automatically sufficient.
Meaning of important expressions
Without knowledge means the person was unaware that the intoxicating substance was being administered. Against their will means it was administered without voluntary agreement, such as through coercion. Incapable of knowing requires a serious loss of the capacity specified in the section; ordinary intoxication alone does not meet that test.
Difference between involuntary and voluntary intoxication
| Issue | Legal treatment |
|---|---|
| Involuntary intoxication | Section 23 BNS (formerly Section 85 IPC) may provide a complete general exception if its conditions are established. |
| Voluntary intoxication | Ordinarily does not provide the same general exception. Section 24 BNS (formerly Section 86 IPC) addresses offences requiring particular knowledge or intent. |
| Ordinary impairment | Being drunk, confused or less restrained does not by itself establish incapacity to know the nature or wrongfulness of the act. |
Section 24 BNS: For offences requiring particular knowledge or intent, the law deals with a person acting in intoxication as having the knowledge they would have had if sober, unless the intoxication was administered without their knowledge or against their will. The distinction between knowledge and specific intent must be assessed in light of the offence and evidence.
Burden of proof and relevant evidence
Section 108 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) places on the accused the burden of establishing circumstances bringing their case within a general exception. This does not remove the prosecution's obligation to prove the ingredients of the charged offence beyond reasonable doubt. For matters governed by the earlier evidence law, Section 105 of the Indian Evidence Act, 1872 is the corresponding provision.
Relevant material may include medical and toxicology records, contemporaneous observations, witness accounts, CCTV footage, evidence showing how the substance was administered, and the accused's behaviour immediately before, during and after the incident. Courts assess the totality of circumstances rather than any single test result.
Official reference: Bharatiya Sakshya Adhiniyam, 2023 (India Code PDF).
Illustrative examples
Example 1: A person's drink is secretly spiked, and reliable evidence establishes that the resulting intoxication made them incapable of knowing the nature or wrongfulness of an act. Section 23 BNS may apply, subject to proof of every requirement.
Example 2: A person voluntarily consumes alcohol and later commits an offence. The fact of drunkenness alone does not attract Section 23 BNS. The specific offence and the rules under Section 24 BNS may require examination.
Frequently asked questions
Is Section 85 IPC still applicable?
It remains relevant to offences committed under the former IPC regime and to earlier decisions, subject to the applicable savings and transitional provisions. Section 23 BNS is the corresponding provision under the new criminal law framework.
Is drunkenness a complete defence to a crime?
No. Section 23 BNS requires involuntary intoxication plus the statutory degree of incapacity at the time of the act.
What if a drink was secretly spiked?
Secret administration may satisfy the involuntary-intoxication requirement, but the defence also requires proof that the resulting intoxication caused the specified incapacity.
Does Section 23 BNS prescribe a punishment?
No. It is a general exception that can exclude criminal liability where its conditions are met.
Official legal references
- Bharatiya Nyaya Sanhita, 2023 - Sections 23 and 24 (India Code)
- Bharatiya Sakshya Adhiniyam, 2023 - Section 108 (India Code)
- Ministry of Home Affairs - New Criminal Laws
Legal note: This article provides general legal information. The applicable statute and the availability of a defence depend on the date of the alleged act, facts, evidence and procedural posture.