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Mens Rea in Statutory Offences

In the field of law, it is important to understand each and every cause of each and every act. Only
then can a sound judgment be given in a case. If the judge does not consider all possible aspects
and possibilities, then he will draw the correct legal conclusion most of the times but, not always.
One of the most important things to consider with regard to any offence is the mens rea, or the
guily intention. This element of crime (mens rea) has been in the picture almost ever since
criminal law has been known to exist. It had been incorporated in definitions of crimes as far
back as The Code of Hammurabi (1700 B.C.) through the use of words like intend and
knowledge. But, as the years have passed, complexities regarding the use of mens rea have
arisen and the courts constantly keep trying to resolve the issues regarding the application of the
rule. 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. They may expressly or impliedly rule out the requirement of mens rea. The
current research study critically analyzes this situation and takes into account the existing views
and decisions on the issue.

Statutory Offence
An offence is basically a violation of law. In legal parlance, the word offence is generally
construed as a criminal wrong. Hence, offence means a wrong in penal law. The Code of Criminal
Procedure, 1973 defines offenceas any act or omission made punishable by any law for the
time being in force and includes any act in respect of which a complaint may be made under
section 20 of the Cattle-trespass Act, 1871( 1 of 1871). This is a guideline for offences related to
the Code. But, there are other types of offences too; the ones that are created by different statutes,
like those related to taxation, national security, etc.. These are commonly referred to as Statutory
offences. 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 other 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.

Statutory Offences are needed because, it is not only the crimes in the Indian Penal Code, 1860

that can harm the society but, another very important class of crimes (White Collar Crimes) also
poses a big threat on the society. Numerous scams have been unveiled in the past 20 years. From
Harshad Mehta to 2G scam, all have contributed towards harming the society. In fact, in 1962, the
Government of India under Lal Bahadur Shastri (the then Home Minister) set up a Committee
(Santhanam Committee) on Prevention of Corruption, which proposed certain socio-economic
offences to be made a part of the Indian Penal Code, 1860 as a new Chapter. But, unfortunately
this did not happen.

These offences were as follows :1. Offences calculated to prevent or obstruct the economic development of the country and
endanger its economic health.
2. Evasion and avoidance of taxes lawfully imposed
3. Misuse of position by public servants in making of contracts and disposal of public property,
issue of licences and permits and similar other matters
4. Delivery by individuals and industrial and commercial undertaking of goods not in accordance
with agreed specifications in fulfillment of contracts entered into with public authorities
5. Profiteering, black-marketing and hoarding
6. Adulteration of foodstuffs and drugs
7. Theft and misappropriation of public property and funds
8. Trafficking in licences, permits, etc.

These crimes are very important for the society and protect public interest. Hence, the offences
falling under this class are known as Public Welfare Offences. Hence, if a statute is enacted to
recognize them as criminal offences, they would be Statutory Offences, commission of which
would attract punishments.

Mens Rea
Actus non facit reum nisi mens sit rea
The above well-known latin maxim describes the relation between mens rea and a crime in
general. Actus reus means a wrongful act. Mens rea means a wrongful intention. The maxim
means that an act does not itself make one guilty unless the mind is also guilty. The mere
commission of a criminal act or violation of law is not enough to constitute a crime. These
generally require, in addition, some elements of wrongful intent or other fault. 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 defence 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. But, there are cases in which
mens rea is not required for an act to be an offence (statutory offence). Such situations will be
discussed in the following sections of this study.

Presumption requiring mens rea


In statutory interpretation, certain presumptions are taken into account by the court while
interpreting the statutes. The presumption relevant here is that a criminal act in general requires
the presence of mens rea. Almost all crimes that exist independently of any statute require, for
their commission, some blameworthy state of mind on the part of the actor. Where a statute
creates an offence, no matter how comprehensive and absolute the language of the statute is, it is
usually understood to be silently requiring that the element of mens rea be imported into the
definition of the crime (offence) so defined, unless a contrary intention is express or implied.
Hence, the plain words of a statute are read subject to a presumption (of arguable weight), which
may be rebutted, that the general rule of law that no crime can be committed unless there is mens
rea has not been ousted by the particular enactment. In the case of Brend v. Wood, Lord Goddard,
C.J. held that :-

It is of the utmost importance for the protection of the liberty of the subject that a court should
always bear in mind that, unless a statute, either clearly or by necessary implication, rules out
mens rea as a constituent part of a crime, the court should not find a man guilty of an offence
against the criminal law unless he has a guilty mind.

Today, the kinds of offences are multiplied by various regulations and orders to such an extent
that it is difficult for most of the law abiding subjects to avoid offending against the law at all

times. Some law, out of so many, could be violated by chance without a guilty intention at some
point of time. In these circumstances, it seems to be more important than ever to adhere to this
principle. But, there is more to it. In the past, it also seemed that the importance of this
presumption of mens rea was declining in importance. In Hobbs v. Winchester Corporation,
Kennedy, L.J. said that there is a clear balance of authority that in construing a modern statute,
this presumption as to mens rea does not exist. This can particularly hold good if Roscoe
Pounds definition of statutory offences is considered. He said that such statutes are not meant to
punish the vicious will but to put pressure on the thoughtless and inefficient to do their whole
duty in the interest of public health or safety or morals. There is also another angle to it. The
world of today is one of machines. There is widespread industrialization and rampant growth
thereof. Everywhere, there are high-powered machines. Very often, these machines are dangerous
and may pose a health hazard to the worker employed. The Bhopal Gas Tragedy showed the
world that compromising on safety standards is the first thing that industries do to cut costs. In
respect of hazardous industry, the threat may not be just to the workers of the factory as in Bhopal
but, also to persons residing in and around that area. In the said Tragedy, in 1984, there was a
major gas leak of MIC gas from the Union Carbide factory in Bhopal. Thousands died and many
are still suffering as a result thereof. Hence, it is in the interest of the larger good that there are
laws which lay down standards and regulate the functioning of the industries, prevent, food
adulteration, corruption, etc., and that these laws are strictly applicable, i.e., they are strictly
construed without requiring mens rea in commission of the offences they create. This would
benefit the society at large.

But, since the view against the presumption of mens rea cannot be applied universally in every
case, after Hobbs Case, as years passed, the courts again seemed to be favouring the use of the
presumption. But, later on, Lord Evershed analyzed the situation critically in a few of his
judgments, one of the most important of which is that in the case of Reynolds v. G.H. Austin &
Sons Ltd.. In this case, Lord Evershed said that :-

Where the subject matter of the statute is the regulation for the public welfare of a particular
activity statutes regulating the sale of food and drink are to be found among the earliest
examples it can be and frequently has been inferred that the legislature intended that such
activities should be carried out under conditions of strict liability. The presumption is that the
statute or statutory instrument can be effectively enforced only if those in charge of the relevant
activities are made responsible for seeing that they are complied with. When such a presumption
is to be inferred, it displaces the ordinary presumption of mens rea. But, it is not enough merely to
label the statute as one dealing with a grave social evil and from that to infer that strict liability
was intended. It is pertinent also to inquire whether putting the defendant under strict liability will
assist in the enforcement of the regulations. That means that there must be something he can do,
directly or indirectly, which will promote the observance of the regulations. Unless this is so,
there is no reason in penalizing him, and it cannot be inferred that the legislature imposed strict
liability merely in order to find a luckless victim.

Lord Evershed also said that 2 conditions must be satisfied if the presumption as to mens rea is to
be rebutted; first, that strict liability must be required to give practical effect to the legislative
intention; and, secondly, the person charged with a breach of the statutory requirements must
have had some opportunity of furthering their observance. So, if the presumption as to mens rea
is a general rule, then presumption against mens rea in statutory offences would be an exception
to the rule. In such a case, the presumption of mens rea in statutory offences would in turn be an
exception to that exception.

Presumption not used un Statutory Offences an exception


This situation is one in which a statutory offence is committed and the presumption requiring
mens rea is not used to decide the case. There have been many such cases in English as well as
Indian courts. One of the early ones is R. v. St. Margarets Trust Ltd.. In this case, a contravention
had occurred of Article 1 of the Hire-Purchase and Credit Sale Agreements (Control) Order, 1956.
The article provided that a person should not dispose of any goods to which the Order applied in
pursuance of a hire-purchase agreement unless the requirements specified in Schedule 2 of the
Order were satisfied, the requirement being that 50% of the cash price should be paid before the
agreement was signed. But, the said contravention was held to be an offence even though the act
was innocently done. The words of the order were an express and unqualified prohibition. Its
object was to help to defend the currency against the peril of inflation which, if unchecked, would
bring disaster upon the country. Donovan, J. said that :-

The present generation has witnessed the collapse of the currency in other countries and the
consequent chaos, misery and widespread ruin. It would not be at all surprising if Parliament,
determined to prevent similar calamities here, enacted measures which it intended to be absolute
prohibitions of acts which might increase the risk of however small a degree. There would be a
little point in enacting that no one should breach the defences against a flood, and at the same
time excusing anyone who did it innocently.

Another important case in this respect would be that of Lockyer v. Gibb. In this case, the
Divisional Court held that being in possession of a drug contrary to Regulation 9 of the
Dangerous Drugs (No. 2) Regulations, 1964 is an absolute offence. Although it must be proved
that the accused knew that he had the article which turned out to be a drug, it need not be shown
that he knew what the article was. Lord Parker, C.J. said that the regulation was a public welfare
provision. If one considered the mischief aimed at alone, there was every reason for treating a
provision such as this as a provision imposing absolute liability.

There have been important landmark cases on this in India as well. A fine example was the case
of State of Maharashtra v. M.H. George. In this case, the respondent left Zurich on November 27,
1962, and landed at Santa Cruz Airport. He did not get out of the plane, and infact, on being
searched, was found to have been carrying Gold slabs. Till November 24th, there was a general
permission for a person to bring or send Gold into India if it was on through transit. But, after
24th November, a condition was imposed. When the respondent had boarded the plane at Zurich,
he could not have known of the condition. He was prosecuted for having violated Section 8(1) of
the Foreign Exchange Regulation Act, 1947, and the question was whether mens rea of the
respondent-accused could be established. The majority held that :-

On the question whether mens rea in the sense of actual knowledge that the act done by the
accused was contrary to the law is requisite in respect of a contravention of Section 8(1) starting
with an initial presumption in favour of the need for mens rea, we have to ascertain whether the
presumption is overborne by the language of the enactment, read in the light of the objects and
purposes of the Act, and particularly whether the enforcement of the law and the attainment of its
purpose would not be rendered futile in the event of such an ingredient being considered
necessary. Where the statute does not contain the word knowingly, the first thing to do is to
examine the statute to see whether the ordinary presumption that mens rea is required applies or
not. When one turns to Section 8(1) in the present context, one reaches the conclusion that there
is no scope for the invocation of the rule of mens rea. It lays an absolute embargo upon persons
who, without satisfying the condition bring or send into India any Gold, the absoluteness being
emphasized by Section 24(1) of the Act, which throws on the accused the burden of proving that
he had the requisite permission. In our opinion, the very object and purpose of the Act and its
effectiveness as an instrument for the prevention of smuggling would be entirely frustrated if a
condition were to be read into Section 8(1) of the Act qualifying the plain words of the
enactment, that the accused should be proved to have knowledge that he was contravening the
law before he could be held to have contravened the provision.

Another very important case in relating to this exception to the rule of mens rea is that of Ranjit
D. Udeshi v. State of Maharashtra. In this case, even a provision of Indian Penal Code, 1860 was
held to be not requiring mens rea. The Supreme Court had held that :-

We do not accept the argument that the prosecution must prove that the person who sells or
keeps for sale any obscene object knows that it is obscene before he can be adjudged guily. The
first sub-section of Section 292 of IPC does not make knowledge of obscenity an ingredient of
the offence. The prosecution need not prove something which the law does not burden it with. If
knowledge were made a part of the guilty act (actus reus), and required the prosecution to prove
it, it would place an almost impenetrable defence in the hands of offenders. It is argued that the
number of books these days is so large and their contents so varied that the question whether
there is mens rea or not must be based on definite knowledge of the existence of obscenity. We

can only interpret the law as we find it and if any exception is to be made, it is for Parliament to
enact a law. As we have pointed out, the difficulty, of obtaining legal evidence of the offenders
knowledge of the obscenity of the book, etc. has made the liability strict. Under our law, absence
of such knowledge may be taken in mitigation but, it does not take the case out of the subsection.

These were some important examples where the exception to the presumption requiring mens rea
has been applied. In these cases, punishment was given for statutory offences, without mens rea
on the part of the accused. This generally does happen in such offences, due to them being linked
with public welfare and national interest. But, in certain other cases, the element of mens rea is
somehow or the other incorporated into the definition of the statutory offences, thereby helping
out the accused.

Presumption used in Statutory Offences an exception to the exception


In spite of the rule being developed that the presumption requiring mens rea will not be used in
cases of Statutory Offences, there have been situations where it has been used. One of the best
and earliest examples of this is the case of Sherras v. De Rutzen. In this case, the defendant was
convicted of selling alcohol to a police officer while on duty under Section 16(2) of Licensing Act
1872. It was customary for police officers to wear an armlet while on duty but this constable had
removed his. The appellant therefore believed that he was off duty. The statute was silent as to the
question of whether knowledge was required for the offence. The appellant was convicted and
appealed contending that knowledge that the officer was on duty was a requirement of the
offence. The appeal was allowed and his conviction was quashed after the court applied the
presumption requiring mens rea in this Statutory Offence. Wright, J. held that :-

There is a presumption that mens rea, an evil intention, or a 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.
It is plain that if guilty knowledge is not necessary, no care on the part of the publican could save
him from a conviction under Section 16(2), since it would be as easy for the constable to deny
that he was on duty when asked, or to produce a forged permission from his superior officer, as to
remove his armlet before entering the public house. I am, therefore, of opinion that this
conviction ought to be quashed.

Then came the landmark case of Lim Chin Aik v. R. Here, Lord Evershed held that the accused
could not be guilty of entering and remaining in singapore contrary to an order, prohibiting him
from doing so and made under the Singapore Immigration Ordinance of 1959, when that order
had not been brought to his attention. Imposing absolute liability on a prohibited person would

not have ensured observance of the order since he could not have complied with it if he did not
know of it and no practicable means was provided by the Ordinance which would ascertain that
he had become a prohibited person.

In another case, i.e., R v. Curr, the facts were that under Section 9(b) of the Family Allowances
Act, 1965 (which replaced Section 9(b) of the Family Allowances Act, 1945), it is an offence to
obtain or receive any sum as on account of an allowance, either as in the defendants own right
or as on behalf of another, knowing that it was not properly payable, or not properly receivable by
him or her. It was held that a trafficker in family allowances, who was making 800% interest a
year on his dealings, and who had a number of women agents, could not be convicted of
soliciting, or conspiring with them to commit an offence under Section 9(b) unless it was proved
that the agents knew that the allowances were not properly receivable by them. The Crown
argued that an agent must be taken to know the law and hence, that an allowance was not
properly receivable by her. But, the court replied that the offence created by the statute was not an
absolute one, that there might be circumstances in which receipt of another persons allowance
would be lawful, and that knowledge of the wrongfulness of the transaction must therefore be
proved.

Hence, it can be seen that even though a rule of not using the presumption in Statutory Offences
has developed, the presumption is still used when the courts feel fit or necessary for it to be used,
in order to maintain justice.

To conclude, it can be said that the rules in courts regarding where and how to use the
presumption requiring mens rea have been developing since quite a long time. In fact, courts have
formed their own rules regarding application of the presumption in normal cases, statutory
offences, and even on when not to use the presumption in statutory offences. But, still, at times,
conflicts of thoughts do occur on whether to apply it or not. In such a situation, it would be pretty
appropriate to cite a judgment of the Supreme Court regarding the implied exclusion of mens rea
in Section 7 of the Essential Commodities Act, 1955, in the case of Nathulal v. State of Madhya
Pradesh. The court had said that :-

Mens rea is an essential ingredient of a criminal offence unless the statute expressly or by
necessary implication excludes it. 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 object of the statute would otherwise be defeated.

Also, in determining whether a statutory provision does or does not create an offence of strict
liability, the following considerations seem to be relevant, as given in the judgment of (M.H.
Georges Case) :1. Phraseology of the statutory provision creating an offence of strict liability, particularly
expressions indicating or excluding the mental element required.

2. Object of the Statute

3. Nature of public purpose purportedly preserved by the statute

4. Nature of the mischief at which the provision or statute is aimed, and whether the imposition of
strict liability will tend to suppress the mischief, although strict liability should not be inferred
simply because the offence is described as a grave social evil.

Hence, in spite of the developed rules regarding the application of the presumption, it still
depends on the facts of the case as well as the type of statutory offence whether the presumption
will be applied or not, and the courts will still keep developing new rules to decide the same.
***********************
# Section 2(n)
# Report of the Committee on the Prevention of Corruption (1964), p 53
# Freidmann, Law in a Changing Society, 2nd Edition, p 202
# Glanville Williams, Textbook of Criminal Law, 2nd Edition, Stevens & Sons, 1983, p 30
# supra
# P.ST.J. Langan, Maxwell on The Interpretation of Statutes, 12th Edition 16th Impression
(2008), LexisNexis Butterworths India, p. 123
# (1946)175 L.T. 306
# [1910] 2 K.B. 471
# Dean Roscoe Pound, The Spirit of the Common Law, p. 52
# [1951] 2 K.B. 135
# [1958] 1 W.L.R. 522

# [1967] 2 Q.B. 243


# AIR 1965 SC 722
# AIR 1965 SC 881
# [1895] 1 Q.B. 918
# [1963] A.C. 160
# [1967] 2 Q.B. 944
# AIR 1966 SC 43
# State of Maharashtra v. M.H. George AIR 1965 SC 722