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Principles of criminal liability The period of Strict Liability Strict liability crimes are those in which the defendant is held liable for a criminal offense he committed, even if mens rea is absent. Though the defendant did not intend any harm by his actions and was completely unaware that he was committing an illegal act, the doctrine of strict liability holds him liable for the criminal offenses committed. Most cases of strict liaiblity are minor infractions and misdemeanors, not nearly as serious as felonies, but still warranting heavy fines and up to a year in jail. Examples of minor offenses for which violators are held strictly liable are parking violations, speeding unknowingly, selling alcohol to minors and, in some jurisdictions, employing people under the age of fourteen.

Mental Element in Criminal Liability To constitute a crime and subject the offendor to a liability to punishment, i.e., to produce legal criminal “guilt”, a mental as well as a physical element is necessary. Thus, to use a maxim “Actus non facit reum mens sit rea“. The act does not make a person guilty unless the mind is also guilty. It is a well known principle of natural justice meaning no person could be punished in a proceeding of criminal nature unless it can be shown that he had a guilty mind. Accordingly, every crime involves: 1. 2.

A particular physical condition – a vicious conduct A particular mental condition – a vicious intention

ACTUS REUS Actus – A physical result of human conduct and Reus – criminal policy that prohibits and seek to prevent its occurrence by imposing penalty for its commission. Thus, Actus Reus means “such result of human conduct as the law seeks to prevent” For example, A repeatedly stabbed B and thereby caused serious injury to his heart and lungs because of this injury B died. A stabbed B with an intention to cause death of B. Here A’s act of repeated stabbing and injuring of B is conduct, the result of such conduct is the death of B A mere injury caused by a conduct is not actus reus: For example, when the court sentences a death penalty to a person and the execution takes place. Results of Omission: In many cases, even the omission of action qualifies as actus reus.

Causation: Harm is an event and event is the product of plurality of factors. There are several causes of one event. So, it can be reasonably said that the event is caused by one of these factors if it would not have happened without that factor. For example, a man can be said to have caused the actus reus of a crime if that actus would not have occurred without his participation in what was done. No physical participation and liability for actus reus     

Principles Accessories Incitement Conspirator Circumstances where instigator is primarily liable and instigated is guiltless

Where another person intervened  

R v. Lawe: Engineer deserting his work, leaving the engine in charge of an ignorant boy who declared himself incompetent to handle the engine. R v. Jordon: A stabbed B, B subsequently died. Medical evidence showed that B died due to Broncho-Pneumonia due to mistaken administration of antibiotics and intravenous injection.

Victim’s Own Conduct has affected the result 

R v. Horsey: A sets fire to a stack of straw. While the stack was burning, the victim was seen in flames and his body was found in the stack yard. No evidence as to how he came there. A tried to save the deceased.

Contributory Negligence 

R v. Swindall and Osborne: Each person driving horse cart on a public road encouraging each other to drive it at dangerous place, killed a pedestrian. It was alleged that deceased is deaf, careless and negligent.

Mens Rea One of the main characteristic of our legal system is that the individual’s liability to punishment for crimes depends, among other things, on certain mental conditions. The liability of conviction of an individual depends not only on his having done some outward acts which the law forbids, but on his having done them in a certain frame of mind or with a certain will. Mens Rea is the mental process of a person. At the time, when he was engaged in the activity which resulted in the deed. It is a legally reprehensible state of mind. It means a mental state, in which a person deliberately violates a law. Thus, mens rea means intention to do the prohibited act.

Development of Mens Rea In the earliest time it was the fundamental presumption that a man in every case intended to do what he has done. The English criminal law began with strict

criminal liability, and there was no clear distinction between the Tort and crime. Therefore the mental attitude of a person was an irrelevant consideration in so far as trial and punishment was concerned. But later on bodily punishment came as a substitute of the payment of damag then the importance of mens rea or the mental attitude of a person, at the time of commission of crime was realized. With the passage of time requirement of mens rea as an essential element of a crime has firmly taken in its roots.

Mens rea in its root Now it is the combination of act ( actus rea) and intent mens rea which makes a crime. And the maxim – Actus non facit reum nisi mens sit rea means act alone does not make a man guilty unless his intentions were so. It is a well known principle of natural justice. There can be no crime large or small without any evil intent. The responsibility in crimes must depend on the doing of a willed or voluntary act and a particular intent behind that act. Most conscious and voluntary acts are directed towards result or consequence. When one acts to produce a particular consequence he is said to do that act with that intention. Intention + Act + attempt = Offence

Exceptions to mens rea Crime = Voluntary act + foresight of the consequences

Acts under compulsion If the consequence not looked for the act may be voluntarily but not intentional. For any criminal liability there must be a voluntary act, this preposition drive from the maxim – Actus me invite factus non est mens actus which means and act done by me against my will is not my act. This maxim support the doctrine of Mens Rea – for no person can be held liable for an act done under the fear or compulsion. For example: A holds B and compels him at gun point to open the lock of C’s house. Here B’s act not a willed or intentional act. The basic requirement of the principle of Mens Rea is that accused must have been aware of all those elements in his act which make it the crime with which he charged. Desire + Will + Motive + Intention + Preparation + Attempt = Commission of an offence

Application of Mens Rea in Indian Penal Code Technically, the application of mens rea is not applied to the offences under IPC. Every offence is very clear under IPC 1860. The definition not only states what accused might have done, that also states about the state of his mind with regard to

the act when he was doing it. Each definition of the offence is complete in itself. The word Mens Rea are not used anywhere in IPC. However, the equivalent words to those of mens rea in the IPC Code used are: Dishonestly (s. 24), Fraudulently (s. 25), reason to believe (s. 26) and voluntarily (s. 39) Case Laws: Sankaran Sukumaran V/s Krishnan Saraswathi (1984 Cr Lj 317) SC held that mens rea is an essential ingredient of the offence under section 494 (bigamy), where the second marriage has been entered in a bonafide belief that the first marriage was not subsisting, no offence under this section committed. C. Veerudu v. State of Andhra Pradesh, SC held that under section 498 A, cruelty means “willful conduct”. Willful conduct includes mens rea.

Conclusion: In modern statutory offenses, the maxim has no longer applicable and the statutes are to be regarded as themselves prescribing the mental element which is prerequisite to a conviction. So mens rea is an essential element of crime, in every penal statue unless the same either expressly or by necessary implication is ruled out by the statues.

Variations in Criminal liability Mistake Conditions to be fulfilled for availing mistake of fact as a defence – Sections 76 & 79 of IPC. The mistake must relate to FACT and not to LAW. The state of things believed to exist would, if true, have justified the act done. The mistake must be reasonable Acts done under order of a superior authority – the accused believing himself to be bound by law was entitled to the protection under Sec 76 (State of West Bengal v. Shew Mangal Shah, 1981) Charges of obscenity – Prior certification by the Censor board provides justification in law in exhibiting the film. (Raj Kapoor v. Laxman, 1980)

Intoxication Involuntary intoxication under the IPC Section 85. Incapacity to know the nature of his act, Incapable of knowing that the thing he was doing was either wrong or contrary to law, Intoxication without knowledge or against will Voluntary intoxication under the IPC Section 86 where there is a presumption of particular knowledge or intent In the case of Jethuram Sukhra Nagbhansi v. State, 1960 – nature of intoxication n the basis of interpretation of ‘against the will’.

Compulsion    

An act done by me against my will, is not my act Defence of compulsion under Section 94 of IPC (except murder and offences against the State punishable with death) Defence of necessity (Section 81 of IPC) is based on the maxim ‘necessitas vincit legem i.e., necessity overcomes law. Necessity as a reason for homicide – R v Dudley and Stephens, 1884

Legally Abnormal Persons Persons who are not invested with the same responsibility for their acts as are those whom the term as legally normal owing to some peculiarity in themselves. e.g.,  

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The Sovereign: Based on the doctrine that the sovereign or government cannot commit a legal wrong and is immune from civil suit or criminal prosecution Infants: Incapacity to understand the nature and consequence of an act or omission – basis exempting a child below seven years from criminal liability (Section 82 of IPC) Insane persons: A complete defence to criminal liability in offences involving mens rea. Insanity in IPC Sec. 84. Every type of insanity is not a legal insanity unless the cognivance faculty is destroyed as a result of unsoundness of mind. Baburam Mahali v. State of West Bengal, 2005

Possible parties to the crime Classification of crimes for the purpose of determination of parties to Crime. They are: 1. Treasons 2. Felony 3. Misdemeanors

TREASONS No legal distinction between the various recognized modes of taking part in the commission of such offences.   

Slightest share in treason is regarded as heinous No activity in a misdemeanor is considered as heinous and no formal distinction between it and any less prominent mode of taking part in the offence All persons who are concerned in it in any way – whether by actually committing it or even by keeping near in order to assist while it is being committed or merely suggesting it are classed together

FELONY Notice will be taken of the gradations of participation in them Four categories of guilty association with a felony: Principal in the I degree Actual offender: The person whose guilty mind is the latest blamable mental cause of the criminal act. In most of the cases the person who actually done the act.

Exceptions:   

Doctor asking nurse to administer poisonous substance as drug to kill a patient Using child to commit felony Using animal to commit any felony

More than one Principal of first degree:   

Dishonest servant who unlocks the door of master’s house to commit burglary with others Father and mother for allowing a child’s death due to starvation A man holds the victim and the other person cuts his throat

Principal in the II degree (Aiders and Abettors) The person who aided and abetted at the very time when the offence is committed.   

Car owner sitting beside the driver who kills by over – fast driving Bigamist second spouse Receiver of stolen property

Accessories before the fact;      

He knows the particular deed contemplated He approved it His views are expressed in such a form which encouraged the principal to perform the deed The person is absent at the time when felony is committed These things happened before the offence is committed A person who procure, counsel, commend or abet the commission of offence

Accessories after the fact       

He knows that the felony has been committed He shelters or relieves any felons Enable him to elude justice Supplies the felons the means to escape Helps the felons to get out of the prison Active assistance to felons is necessary Wife’s immunity for helping husband who is a felon

MISDEMEANORS A misdemeanor, a criminal offense that is less serious than a felony. It is is generally punishable by a fine or incarceration in a local jail, or both. Many jurisdictions separate misdemeanors into three classes: high or gross misdemeanors, ordinary misdemeanors, and petty misdemeanors.

Indian Penal Code Preliminary Sec. 1 – Title and extent of operation of the code This act shall be called the Indian Penal Code, and shall extend to the whole of India except the State of Jammu and Kashmir.

Sec. 2 – Punishment of offences committed with-in India Every person shall be liable punishment under this Code and not otherwise for every act of omission contrary to the provisions thereof, of which, he shall be guilty within India.

SEC. 3 – PUNISHMENT OF OFFENCES CO MMITTED BEYOND, BUT WHIC H BY LAW MAY BE TRIED WITHIN INDIA Any person liable, by any Indian law to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India.

SEC. 4 – EXTENSION OF CODE TO EXTRA-TERRITORIAL OFFENCES The provisions of this Code apply also to any offence committed by  

Any citizen of India in any place without and beyond India; Any person on any ship of aircraft registered in India wherever it may be.

Explanation – In this section the word “offence” includes every act committed outside India which, If committed in India, would be punishable under this code. Illustration: A, who is a citizen of India, commits a murder in Uganda. He can be tried and convicted of murder in any place in 3[India] in which he may be found.

SEC. 5 – CERTAIN LAWS NOT TO BE AFFECTED BY THIS ACT Nothing in this Act shall affect the provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors or airmen in the service of the Government of India or the provisions of any special or local law.

General Explanations – S. 6 – S. 52A Sections 6 – 33 and 39 – 52A Throughout this Code every definition of an offence, every penal provision, and every illustration of every such definition or penal provision shall be understood subject to the exceptions contained in the Chapter entitled “General Exceptions”, though those exceptions are not repeated in such definition, penal provision, or illustration.

Illustrations 

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(a) The sections, in this Code, which contain definitions of offences, do not express that a child under seven years of age can not commit such offences; but the definitions are to be understood subject to the general exception which provides that nothing shall be an offence which is done by a child under seven years of age. (b) A, a police officer, without warrant, apprehends Z, who has committed murder. Here A is not guilty of the offence of wrongful confinement for he was bound by law to apprehend Z and therefore the case falls within the general exception which provides that “nothing is an offence which is done by a person who is bound by law to do it”.

Servant of Govt. and Public Servant (Sec 14, 21) *The words “servant of Government” denote any officer or servant continued, appointed or employed in India by or under the authority of Government.] The word “Judge” denotes not only every person who is officially designated as a judge, but also every person. Who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, is confirmed by some other authority, would be definitive, or Who is one of a body of persons, which body of persons is empowered by law to give such a judgment. Illustrations    

(a) A Collector exercising jurisdiction in a suit under Act 10 of 1859, is a judge. (b) A Magistrate exercising jurisdiction in respect of a charge on which he has power to sentence to fine or imprisonment, with or without appeal, is a judge. (c) A member of a Panchayat which has power, under Regulation VII, 1816, of the Madras Code, to try and determine suits, is a judge. (d) A Magistrate exercising jurisdiction in respect of a charge on which he has power only to commit for trial to another Court, is not a judge.

The words “Court of Justice” denote a judge who is empowered by law to act judicially alone, or a body of judges, which is empowered by law to act judicially as a body, when such judge or body of judges is acting judicially. The words “public servant” denote a person falling under any of the descriptions hereinafter following namely:1. 2.

Every Commissioned Officer in the Military, Naval or Air Forces of India; Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory function; 3. Every officer of a Court of justice including a liquidator, receiver or commissioner 4. Every juryman, assessor, or member of a panchayat assisting a Court of justice or public servant;

5.

Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of justice, or by any other competent public authority; 6. Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement; 7. Every officer of whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience; 8. Every officer whose duty it is, as such officer, to take, receive, keep or extend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government; 9. Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district; 10. Every persons who holds any office in virtue of which he is empowered to prepare, publish maintain or revise an electoral roll or to conduct an election or part of an election;

Movable Property (Sec 22) The words “moveable property” are intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything, which is attached to the earth.

Wrongful Gain/Wrongful Loss, Dishonestly, and Fraudulently (Sec 23, 24, 25) “Wrongful gain” is gain by unlawful means of property which the person gaining is not legally entitled. “Wrongful loss“: “Wrongful loss...