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A Project Report on Application of Mens rea under IPC:

Interpretation of Supreme Court in past decade.


CRIMINAL LAW-I

Submitted by:Aaditya Vasu


2013001
SEMESTER 3rd
DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY
VISAKHAPATNAM
pg. 1

ACKNOWLEDGEMENT
Writing a project is one of the most significant academic challenges I have ever faced. Though
this project has been presented by me but there are many people who remained in veil, who gave
their all support and helped me to complete this project.
First of all I am very grateful to my subject teacher Dr. Nandini Murthy CP Maam, without the
kind support of whom and help the completion of the project was a herculean task for me. She
donated her valuable time from her busy schedule to help me to complete this project and
suggested me from where and how to collect data.
I am very thankful to the librarian who provided me several books on this topic which proved
beneficial in completing this project.
I acknowledge my friends who gave their valuable and meticulous advice which was very useful
and could not be ignored in writing the project. I also owe special thanks to my parents for their
selfless help which was very useful in preparing the project & without whose support this project
wouldnt have been prepared.

Aaditya Vasu
2013001
3rd Semester

pg. 2

Index
1. Table of Cases04
2. Introduction05
3. Common Law Principle.06
4. Mens rea under Common Law...07
5. Importance of Mens rea.08
6. Mens rea under Indian Penal Code10
7. Intention while Drafting12
8. Interpretation by Indian Courts..14
9. Mens rea: Is it required in all cases?..................................................................16
10. Conclusion.18
11. Bibliography..19

Table of Cases

Additional Commissioner, Income Tax v. Durga Pandari Nath Tulijayya & co. (Pg no 18)
Commissioner of Sales Tax v. Rama and Sons. ( Pg no 17)
Deepa and Ors v. S.I. of Police. ( Pg no 16)

pg. 3

Director of Enforcement v. MCTM Corp Pvt Ltd. (Pg no 14)


Gujarat Travancore Agency v. Commissioner Income Tax, Kerala. (Pg no 16)
Indo China Steam Navigation Co Ltd v. Jasjit Singh. (Pg no 15)
Lal Behari v. St of MP. ( Pg no 17)
Nathulal v. St of MP ( Pg no 14)
R v. Daviault. ( Pg no 15)
R v. Khandu. (Pg no 9)
R v. Meli and Ors (Pg no 9)
R v. Shorty. (Pg no 9)
Ravule Hariprasad rao v. The State (Pg no 15)
Regina v. St. Margarets (Pg no 15)
St. of MH v. MH. George. (Pg no 15)
Sherras v. De Rutzen. (Pg no 11,15)

Introduction
In the field of law, it is important to understand each and every cause of each and
every act. Only then a sound judgment can be given in a case. One of the most important things
to consider with regard to any offence is the mens rea or the blameworthy condition of mind.
This element of crime (mens rea) has been in the picture almost ever since criminal law has
known to be exist. It had been incorporated in definitions of crimes through the use of words like
intend or knowledge. In general terms, Malice which means wrong intention or evil
intention is also a kind of mens rea and Willfulness which means a deliberate act which shows

pg. 4

the intention of doing the act on part of the doer is also a kind of mens rea. In legal language,
"Malice" A person acts with "malice" if he intentionally or recklessly causes the social harm
prohibited by the offense; and, "Willfully" "Willful" has been held in different jurisdictions to
be synonymous with other terms, e.g., "intentional," "an act done with a bad purpose," "an evil
motive," or "a purpose to disobey the law."
Offences have been classified in many ways. But, for this study, the relevant
classification of offences would be into offences malum in se and offences malum prohibitum.
Offences that are malum in se are the ones that are inherently wrong or evil, like murder, rape,
etc.. The society at large recognizes them as wrong. They have developed as offences over the
years and through decisions of the court. Hence, these are also called Common Law offences as
they are developed through precedents. On the oth+er hand, offences that are malum prohibitum
are the acts that are wrong because they are prohibited by statutes. For example, offences created
by Road Traffic Rules are not inherently wrong but, since they are the rules that have to be
followed on the road, their violation would lead to penalty. Travelling in a car on the right side of
the road is not inherently wrong but, it is an offence as the law does not allow it. It is these kinds
of offences that are referred to as Statutory Offences. They are the ones that are created by
statutes which require strict interpretation. Generally, the question that arises in cases is that
whether mens rea is present or absent in the offender. But, sometimes, the question is whether it
is required or not. This happens in case of statutory offences.
Statutory offences are the offences which are created by different statutes and
generally doesnt comes under the guidelines for offences related to the codes. The statutes like
those related with taxation, national security, public welfare, whose mere omission or
commission of acts becomes punishable. In other words, no mens rea or legal fault is required for
criminal liability. I n the large number of modern statutes many have been interpreted by the
courts as using language which, in prescribing punishment for the specified deeds (each of which
is thus an actus reus), has excluded any requirement of mens rea at all. Where this is so, the
question whether the accused may have committed the deed intentionally, recklessly, negligently
or by mistake, is irrelevant so far as his liability to conviction is concerned. Such a crime is often
and suitably termed a crime of strict liability or of absolute liability.1
1 Taken from RUSSELL ON CRIME by J.W. Cecil Turner, 12th edition, Universal publication, pg no. 62.

pg. 5

This evolves as an exception to the common law principle of each and every crime.
Thus, it has become a question before the court of law whether to except the general principle in
all the cases or to apply the exception in all where the offences are socio-legal in nature and are
against the public welfare. The current research study critically analyses this situation and takes
into account the existing views and decisions on the issue with the help of relevant case laws.

Common Law Principle


Common Law
The word common law is used in many different contexts. The word common law is
used in the present context to describe the body of legal principles and concepts which were
evolved over many centuries by judges in the English courts of law. The common law was
influential in molding both the area of and restrictions on freedom in England and those parts of
the world which have the common law tradition as their legal foundation. The common law is
the product of long evolved social values which are judicially articulated and interpreted. "Its
roots strike deep into the soil of national ideas and institutions".
One of the greatest virtues of the common law system is to be found in its capacity to
balance the individual interests in liberty with the common concerns and interests of the
community.
In the modern era, there is a growing belief that the solutions to these problems can be
sought by deliberate and calculated reform of the law through legislation. Reforms are
formulated by law reform agencies and by political and bureaucratic authorities through
processes of abstract rationalization or imperfect empirical investigation, sometimes
based on Marxist and neo-socialist ideological assumptions. The evolved law is thereby
fractured and reshaped with unpredictable consequences. Another consequence of this
method is that it tends to remove questions of public morality from the community itself.
It results in the imposition of restrictions on liberty which is inadequately founded on
public perceptions. Imperfect rationalism and empiricism are poor substitutes for the
accumulated experience of the community, enshrined in the common law. The common
law experience reflects the wisdom and even the follies of our civilization. However, it

pg. 6

represents an evolved public morality which is the soundest basis for the formulation of
legal precepts (subject to comments below relating to modernisation and legislation).2
Our system of criminal law is not, as is the case in some countries, contained in a single
code promulgated by a legislative body. It is, on the contrary, a conglomerate mass of
rules based upon the ancient common law of England as modified and extended by the
authoritative decisions of the judges in the long passage of history, and vastly enlarged by
the addition of statutory enactments made by parliament from time to time, to meet the
needs of the moment.

Mens rea under Common Law


Under common law, it appeared as the ethical conception that it was not proper to
punish a man criminally unless he had known that he was doing wrong. Attention was thus more
strongly directed to the mental element in crime, and the moral notion gradually crystallized into
a rule of law. It happened that long before this period St Augustine had said: Ream linguam non
facit nisi mens rea. This remark, slightly altered, eventually appeared in the Leges Henrici Primi
as a test of guilt in the crime of perjury, and ultimately it was further refined and used by Coke to
express it as Et actus non facit reum nisi mens sit rea in which there is a clear distinction between
a mans deed (actus) and his mental processes (mens) at the time when he was engaged in the
activity which resulted in the deed. This means that the conduct which resulted in the deed was
inspired and actuated by his mens rea, because in the usual case he intends to produce that result
and regulates his conduct in order to produce it.3
Mens rea, or "guilty" intent, deals with what the defendant needs to have been
thinking at the time he or she committed the actus reus for criminal liability to attach. In order to
be guilty of most crimes, the defendant must have had the mens rea required for the crime he was
committing at the time he committed the criminal act. As with the actus reus, there is no single
mens rea that is required for all crimes. Rather, it will be different for each specific crime.

2 Excerpt from Article on Common Law and Statute by Doctor Mark Cooray.
3 Taken from Kennys Outlines of Criminal law by J W Cecil Turner, pg no.13, 19th ed., Universal
Publication.

pg. 7

Thus it can be said that mens rea is one of the principles of the common law that a
crime is not committed if the mind of the person doing the act in question be innocent. It is said
that actus non facit reum nisi mens sit rea (the intent and act must both concur to constitute the
crime). Although prima facie and as a general rule there must be a mind at fault before there can
be a crime, it is not an inflexible rule and a statute may relate to such a subject matter and may be
so framed as to make an act criminal whether there has been any intention to break the law or
otherwise to do wrong or not.4

Importance of Mens rea


Mens Rea is a technical term. It means some blameworthy condition of the mind, the
absence of which on any particular occasion negatives the condition of crime. It is one of the
essential ingredients of criminal liability. A criminal offences is said to have been committed
only when an act, which is regarded as an offence in law, is done voluntarily. Hence, an act
becomes criminal only when done with a guilty mind.
Before a criminal is made liable, he should be proven to have some blameworthy
mental condition (mens rea). For example, when someone attacks you, then, causing injury to
him in private defense is not a crime but, causing injury with the intention of revenge is a crime.
This is how the presence of a guilty mind changes the nature of the offence. But, the requirement
of a guilty mind varies from crime to crime. An intention which would qualify as the required
mens rea for one crime, may not for some other crime. In case of murder, it is the intent to cause
death; in case of theft, it is the intention to steal; in case of rape, it is the intention to have sexual
intercourse with a woman without her consent, etc. Hence, although mens rea is a sine qua non
of a criminal act, its type and degree may vary from crime to crime.
The importance of mens rea can be established by common law judgments which
appeared in many cases. For example, in an appeal5 against conviction and sentence for murder

4 Excerpt taken from Ratanlal and Dhirajlals The Indian Penal Code by Justice Y.V. Chandrachud & V.R.
Manohar, 33rd Edition Reprint 2012, Lexis Nexis Butterworths Publication.
5 Meli and others v. R. [1954] 1 W.L.R. 228; 1 All E.R. 373.

pg. 8

in Baustoland which came before the judicial committee of the Privy Council 6, it appeared that
the appellants had plotted together to murder a man and to dispose of his body so that his death
should be thought due to an accident. They invited him to a hut at night where they plied him
with beer, after which they beat him with an intent to kill. Thinking him to be dead, they carried
the body out and rolled it over the cliff to make it appear as accident. Medical evidence, accepted
the fact that the death was not due to the beating nor due to rolling down the cliff, but because of
exposure to the cold. The appellants were held guilty of culpable homicide and not of murder as
their conduct fell in two parts; 1st, the attack in the hut and 2nd the subsequent placing of body
outside. Of these the first part was actuated by mens rea but this activity didnt caused the death
and therefore there was no actus reus of murder7. On the other hand once they believed the man
to be dead their intention to kill had ceased and their activity was now prompted merely by their
desire to evade detection, and therefore their conduct in leaving the body in open was not
actuated by malice, afterthought, so that the resulting death by freezing could not make them
gulty of murder.8 In an Indian case in 18909 the Court of Appeal by a majority, in absence of
mens rea for the final cause of death quashed the conviction of murder. Khandu, with intent to
kill, had beaten his victim on the head, then, believing him to be dead, had set fire to the hut in
which he was lying in order to remove all evidence of crime. But medical evidence showed that
the blows did not caused the death, which was in fact caused by burning. The court therefore
quashed the conviction of murder. Again, in the African case of R. v. Shorty10 it was held that
there was a felling of the deceased with intent to kill by the accused who then went on to place
the body in a sewer; the death however was not due to the blow struck but to drowning. The
court held that the immersion in the sewer was a new, intervening act, and it was not
immediately connected with the assault, adding, we do not feel that at this stage there was any
6 Lord Goddard, C.J., Lord Reid and Mr L.M.D. de Silva.
7 Acc. to English law they were clearly guilty of attempt to murder, but there is no mention of this in
report.
8 Taken from Kennys Outlines of Criminal law by J W Cecil Turner, pg no.14, 19th ed., Universal
Publication.
9 R. v. Khandu (1890) I.L.R. 15 Bom., 194.
10 1950 S.R. 280.

pg. 9

intention to kill, because there was a genuine, if inadequately founded, belief that the accused
was dead;11 accordingly Shorty was convicted only of attempt to murder.12
Thus, it can be said that to decide whether the person is liable with the punishment of
an offence, the person or say, accused, must have along with the actus reus of that offence, the
particular mens rea for that offence too.

Mens rea under Indian Penal Code


The Indian Penal Code 1860 sets out the definition of offences, the general
conditions of liability, the conditions of exemptions from liability and punishments for the
respective offences. Lord Macaulay and his colleagues have not used the common law doctrine
of mens rea in defining these crimes. However, they preferred to import it by using different
terms indicating the required evil intent or mens rea as an essence of a particular offence. Guilt in
respect of almost all the offences created under the IPC is fastened either on the ground of
Intention or knowledge or reason to believe. Almost all the offences under the IPC are qualified
by one or the other words such as wrongful gain or wrongful loss, dishonestly, fraudulently,
reason to believe, criminal knowledge or intention, voluntarily, maliciously, etc.. Thus, it
can be said that the essence of the common law principle is present in IPC but that principle is
not incorporated completely in it. So, for interpretations of the provisions of IPC, the common
law principle would not be used and, else, the definition provided by the code will be of utmost
importance.13
Under Indian Penal code, every offence is defined. The full definition of every crime contains
expressly or by implication a proposition as to the state of mind. Thus, it completely depends on
the way the offence is defined by the drafters to constitute whether that offence requires mens rea
or not to be an offence. It, therefore, appears that the maxim actus non facit reum nisi mens sit
rea has not so wide an application as it is sometimes considered to have. It has undergone a
11 Per Tredgold, J.
12 Supra 6, pg no. 15.
13 Taken from PSA Pillais Criminal Law by K I Vibhute, 10th ed., Lexis Nexis Butterworths Wadhwa
publication, Pg 57.

pg. 10

modification owing to the greater precision of the modern statutes. It is impossible to apply it
generally to all statutes and the substance of all the reported cases is that it is necessary to look at
the object of each Act that is under consideration to see whether and how far knowledge is the
essence of the offence created.
The maxim actus non facit reum nisi mens sit rea has, however, no application to the
offences under the Penal Code in its purely technical sense because the definitions of various
offences contain expressly propositions as to the state of mind of the accused. If, in any case, the
Indian Legislature has omitted to prescribe a particular mental condition, the presumption is that
the omission is intentional. In such a case the doctrine of mens rea is not applicable.
But Sherras v. De Rutzen14 seems very like an emphatic re-assretion of the doctrine that mens rea
is an essential ingredient of every offence except in three case: (1) cases not criminal in any real
sense but which in the public interest are prohibited under a penalty, e.g. Revenue Acts; (2)
public nuisance; (3) cases criminal in form but which are really only a summary mode of
enforcing a civil right. Only limited and exceptional class of offences can be committed without
a guilty mind. The court should always bear in mind that unless the statute, either clearly or by
necessary implication, rules out mens rea as a constituent part of crime, an accused should not be
found guilty of an offence under the criminal law unless he has got a guilty mind.
The essence of criminal law has been said to lie in the maxim- "actus non facit reum nisi mens sit
rea." Bishop writes15: ' "There can be no crime large or small, without an evil mind. It is therefore
a principle of our legal system, as probably it is of every other, that the essence of an offense is
the wrongful intent, without which it cannot exist." This examination of the mental element or
mens rea requisite for crime, will be restricted with reference to the use of the term itself in so far
as it signifies the mental element necessary to convict for any crime, and only regarding crimes
not based upon negligence.
A possible division for such consideration is the following:
1. Requisite mens rea in the early law.
14 [1895] 1 QB 918.
15 Criminal law, 9th Edition. (1930) 287.

pg. 11

2. Beginnings of the mens rea concept.


3. Subsequent development of a general mens rea as necessary for crime.
4. Application of the general concept to some individual crimes,
5. Application of the general concept regarding some specific defenses.
6. Some general present day applications of the term.

A man is responsible, not for his acts in themselves, but for his acts coupled with the mens rea or
guilty mind with which he does them. Before imposing punishment, the law must be satisfied of
two things: first that an act has been done which by reason of its harmful tendencies or results is
fit to be represented by way of penal discipline; and secondly that the mental attitude of the doer
towards his deed was such as to render punishment effective as a deterrent for the future, and
therefore just. The form which mens rea assumes will depend on the provisions of the particular
legal system. Criminal liability may require the wrongful act to be done intentionally or with
some further wrongful purpose in mind, or it may suffice that it was done recklessly; and in each
case the mental attitude of the doer is such as to make punishment effective. If he intentionally
chose the wrong, penal discipline will furnish him with a sufficient motive to choose the right
instead for the future. If, on the other hand, he committed the forbidden act without wrongful
intent, but yet realizing the possibility of the harmful result, punishment will be effective
inducement to better conduct in the future.16
Yet there are other cases in which, for sufficient or insufficient reasons, the law is content with a
lower form of mens rea. This is the case, as was already noticed, with crimes of negligence. A
person may be held responsible for some crimes if he did not do his best as a reasonable man to
avoid the consequence in question. Sometimes, however, the law goes even beyond this; holding
a man responsible for his acts, independently altogether of any wrongful state of mind or
culpable negligence. Wrongs which are thus independent of fault may be distinguished as wrongs
of strict liability. In respect of requirements of fault, wrongs are of three kinds (1) Intentional or
reckless wrongs, in which the mens rea amounts to intention, purpose, design, or at least
foresight. In such wrongs defences like mistake operate to negative the existence of mens rea. (2)
Wrongs of Negligence, in which the mens rea assumes the less serious form of mere
16 P.J Fitzgerald, Salmond on Jurisprudence, 12th edition, Delhi, Universal Law Publishing Co, 2012, p
366.

pg. 12

carelessness, as opposed to wrongful intent or foresight. With these wrongs defenses such as
mistake will only negative mens rea if the mistake itself is not negligent. (3) Wrongs of Strict
Liability, in which the mens rea is not required, neither wrongful intent nor culpable negligence
being recognized as a necessary condition of responsibility; and here defenses like mistake are of
no avail.17

Intention while drafting


Element of Mens Rea is incorporated in most of the offences of IPC but there are
some provisions where no element can be found. There, it is presumed that mens rea is
intentionally omitted and thus for commission of that offence, no mens rea is required; means
only the commission of offence is necessary and there is no need to prove the mens rea. The
burden of proving mens rea or the guilty intention of the accused lies on the complainant. Most
of the times, it so happens that proving the commission of an offence becomes a difficult task
and upon that to prove the intention which is not visible from the outset, would be a herculean
task for the complainant. In such cases or situations, the person guilty of the offence would get
free which will be against the principles of law. Thus to prevent such condition, the accused is
punished for commission of offence only and it is presumed by the court itself that he is carrying
the blameworthy condition of mind, which is rebuttable. This kind of situation mainly arises in
the cases which deals with socio-welfare legislations which are also called statutory offences.
Under IPC also, there are provisions which especially deals with welfare of society like the
provision related with dowry death18. There are certain sections in the Indian Penal Code also, in
which there no element of mens rea is mentioned and it can be inferred that the drafters
intentionally left mens rea from those provisions as to provide some relief to the prosecution
from the extensive burden of proving the act and also proving the intention lying behind that act.
For example, Sec 292 of the code, which talks about Sale, etc., of obscene books, etc., and

17 Ibid, p.367.

18 Sec. 304 (B) of Indian Penal Code, 1860.

pg. 13

provides the punishment only commission of the act. It is immaterial whether there was any
intention or not.

Interpretation by Indian Courts


The concept of mens rea developed in England during the latter part of the common-law era
(about the year 1600) when judges began to hold that an act alone could not create criminal
liability unless it was accompanied by a guilty state of mind.
Today most crimes, including common-law crimes, are defined by statutes that usually contain a
word or phrase indicating the mens rea requirement. A typical statute, for example, may require
that a person act knowingly, purposely, or recklessly19. And the Indian Courts has interpreted it in
a beautiful manner without any hesitation and doubts.
The Apex Court in the case of Director of Enforcement vs. M.C.T.M. Corporation Pvt. Ltd. observed thus: "Mens rea" is a state of mind. Under the criminal law, mens rea is considered as
the "guilty intention" and unless it is found that the accused had the guilty intention to commit
the crime he cannot be held guilty of committing the crime."
The concept of mens rea is aptly described by Their Lordships of Apex Court in the case of
Nathulal vs. State of Madhya Pradesh - . In para no.4 of the judgment Their Lordships
observed thus: "The law on the subject is fairly well settled. It has come under judicial scrutiny
of this Court on many occassions. It does not call for a detailed discussion. It is enough to restate
the principles. Mens rea is an essential ingredient of a criminal offence. Doubtless a statute may
exclude the element of mens rea, but it is a sound rule of construction adopted in England and
also accepted in India to construe a statutory provision creating an offence in conformity with the
common law rather than against it unless the statute expressly or by necessary implication
excluded mens rea. The mere fact that the object of the statute is to promote welfare activities or
to eradicate a grave social evil is by itself not decisive of the question whether the element of
guilty mind is excluded from the ingredients of an offence. Mens rea by necessary implication
may be excluded from a statute only where it is absolutely clear that the implementation of the
objection of the statute would otherwise be defeated."
19 http://legal-dictionary.thefreedictionary.com/mens+rea

pg. 14

Mens rea: Latin for "guilty mind"; guilty knowledge or intention to commit a prohibited act.
Also: "a particular state of mind such as the intent to cause, or some foresight of, the results of
the act or the state of affairs." (R v Daviault [1994] 3 SCR 63 at para. 74) Many serious crimes
require the proof of mens rea before a person can be convicted. In other words, the prosecution
must prove not only that the accused committed the offence (actus reus) but that he (or she) did it
knowing that it was prohibited; that their act (or omission) was done with an intent to commit the
crime. A maxim rich in tradition and well known to law students is actus non facit reum, nisi
mens sit rea or "a person cannot be convicted and punished in a proceeding of a criminal nature
unless it can be shown that he had a guilty mind". Not all offences require proof of mens rea
such as many statutory or regulatory offences.
As long back as 1895. Wright J. observed in Sherras v.De Rutzen."There is a presumption that
mens rea, an evil intention of knowledge of the wrongfulness of the act, is an essential ingredient
in every offence; but that presumption is liable to be displaced either by the words of the statute
creating the offence or by the subject matter with which it deals, and both must be considered."
In Ravule Hariprasada Rao v. The State ruled that unless a statute either clearly or by necessary
implication rules out mens rea as a constituent part of the crime, a person should not be found
guilty of an offence against the criminal law unless he has got a guilty mind 20. Mens rea means a
guilty mind, a guilty or wrongful purpose; a criminal intent. It presupposes guilty knowledge and
willfulness. Mens rea means some blameworthy mental condition whether constituted by
knowledge or intention or otherwise. An honest and -reasonable belief entertained by the accused
of the existence of the facts, which, if true, would make the act charged against him innocent,
would be enough to show the absence of mens rea.
In Indo-China Steam Navigation Co. Ltd., v. Jasjit Singh 21 the Supreme Court attached great
importance to the social purpose of the legislation rather than to the so called presumption
relating to mens rea. In State of Maharashtra v. Mayer Hans George [1965] 35 Comp Cas 557
(SC) the Supreme Court expressed the view that the rule of construction laid down by the Court

20State Of Gujarat & Anr vs Acharya D. Pandey & Ors, 1971 AIR 866, 1971 SCR (2) 557
21 [1964] 34 Comp Cas 435 (SC)

pg. 15

of Criminal Appeal of England in Regina v. St. Margarets Trust Ltd.22, was nearer to the point
having regard to the objects and purposes of the legislation with which they were dealing.

Mens rea: Is it required in all cases?


Considering the question of requirement of mens rea, the Hon'ble Supreme Court in Gujarat
Travancore Agency v. Commissioner of Income-tax, Kerala observed: ...In the case of a
proceeding under Section 271(1) (a), however, it seems that the intention of the Legislature is to
emphasise the fact of loss of revenue and to provide a remedy for such loss, although no doubt
an element of coercion is present in the penalty. In this connection, the terms in which the
penalty falls to be measured are significant. Unless there is something in the language of the
statute indicating the need to establish the element of mens rea, it is generally sufficient to prove
that a default in complying with the statute has occurred. In para 13, In Commissioner Central
Excise vs Kc Alloys And Steel Castings which was decided on 3 August, 2006, it was held that
'' It may also be noticed that though, normally, element of mens rea is mandatory requirement
before penalty can be imposed but it is not always so required.''
In Deepa and Ors. Vs S.I. Of Police, And Anr 23. It was held that ''Normally a charge must fail
for want of mens rea but there may be offences where mens rea may not be required. But actus
reus must always exist. Without it there cannot be any offence. Mens rea can exist without actus
reus, but if there is no actus reus there can be no crime. Even if mens rea is there, no conviction
could be had without actus reus without which there cannot be a crime. For example a man may
intend to marry during the lifetime of his wife and enter into a marriage believing that he is
committing the offence of bigamy. Mens rea is there. But if unknown to him his wife died before
he married again, in spite of the mens rea there cannot be an offence of bigamy.
In Commissioner of Sales Tax v. Rama and Sons, General Merchant, Ballia 24, the Allahabad
High Court observed as under:-

22 [1958] 1 WLR 522 (C Cr App)


23 1986 CriLJ 1120
24 1999 UPTC 25

pg. 16

"The principle of mens rea comes from English Criminal Law from times when the law was not
codified. It was said that actus non facit reum nisi mens sit rea (the intent and act must both
concur to constitute the crime). But this principle has lost much of its significance owing to
greater precision of modern statutes. The nature of intent or the ingredients of offences are now
clearly stated in the statutes and nothing further is required to establish as offence then what the
statute specified. We have words like 'voluntarily', 'intentionally', 'negligetly', 'knowingly',
fraudulently', 'dishonestly', 'rashly', 'omits', 'without lawful authority' ect., 'omits', 'without lawful
authority' ect., used in various sections of the Indian Penal Code defining various offence. Proof
of the State of mind or of the conduct of the person as indicated by the aforesaid word establishes
the offence and no further guilty intent or mens rea need be proved. In fact there are many acts
which are offences and do not require proof any mens rea or guilty intention, for example
possession of illicit fire arm."
In 'Lal Behari v. State (E)', it was held by the Hon'ble Bench of Allahabad High court that no
mens rea is required for an offence of contempt of court; what was meant is that no criminal
intention or motive behind the deliberate doing of an act is required.
In view of these position of law, a fortiori, it is also to be remembered that the degree of mens
rea required for a particular common-law crime varied. For example, the offence of Murder is
required a malicious state of mind, whereas Larceny is required a felonious state of mind.

pg. 17

Conclusion
Mens rea was an essential ingredient of an Offence. An application of the rule of
construction to this principle meant that there was no presumption that mens rea was excluded
form statutory offences.

Under common law "It is a sound rule to construe a statute in

conformity with the common law rather than against it, except where and so far the statute is
plainly intended to alter the course of the common law. Let me conclude this article with
observation of the Honble Full Bench of Andhra Pradesh High Court, in Additional,
Commissioner, Income Tax v. Durga Pandari Nath Tulijayya & Co. 25, where it was observed as
under: - "The doctrine of mens rea is of common law origin developed by Judge-made law. It has
no place in the Legislator's law. It has no place in the Legislator's law where offences are defined
with sufficient accuracy. Mens rea is an essential ingredient of an offence. However, it is a rule
of construction. If there is a conflict between the common law and the statutory law, it has
always been held that it is a sound rule to construe a statute in conformity with the common law.
But it cannot be postulated that statute cannot alter the course of the common law. The
parliament, in exercise of its constitutional powers makes statutes and in exercise of those
powers it can affirm, alter or take away the common law altogether. Therefore, if it is plain from
the statute that it intends to alter the course of the common law, then the plaint meaning should
be accepted. The existence of mens rea as an essential ingredient of an offence has to be made
out by the construction of the statute."

25 1977 TaxLR, 258

pg. 18

Bibliography
Books Referred
General Principles of Criminal Law, K.N. Chandrasekhran Pillai, 2 nd Edition. Lexis Nexis

Butterworths Publication.
Criminal Law, Cases and Materials, K.D. Gaur, 6th Edition. Universal Publication.
Kennys outlines of Criminal Law, J.W. Cecil Turner, 19th Edition. Universal Publication.
O.P Srivastavas Principles of Criminal law, R. Prakash, 5 th Edition. Eastern Book

Company.
Ratanlal & Dhirajlal, the Indian Penal Code, Justice KT Thomas, 34 th Edition. Lexis
Nexis Publication.

pg. 19