2.

Mens rea
The second important essential of a crime is mens rea or guilty mind or evil
intent. There can be no crime of any nature without an evil mind. Every crime
requires a mental element. That is why the doctrine of mens rea embodied in
the Latin maxim actus non facit reum nisi mens sit rea is considered a
fundamental principle of penal liability. The meaning of the maxim is that
intent and act must both concur to constitute a crime. From this well-known
maxim follows the other proposition, actus me invito factus non est mens actus
which means an act done by me against my will is not my act. It has, however,
been a matter of great difficulty to arrive at the true meaning of mens rea. In
Sweet v. Parsley,1, Lord Diplock said, “An act does not make a man guilty of a crime
unless his mind be also guilty. It is thus not the actus which is reus but the man
and his mind respectively ... it is well to record this as it has frequently led to
confusion.” Sir James Stephen said that the expression itself is unmeaning.
Whatever view may be formed or have been formed, the influence of the
expression becomes quite evident if we trace the history of criminal law. The
conception of mens rea has differed from time to time according to the
changing underlying conception and objects of criminal justice. Stephen thought
that “the maxim not only looks more instructive than it really is, but suggests
fallacies which it does not precisely state”. 2
Notion of mens rea in early primitive societies was non-existent and liability
was absolute and offender was responsible whether he acted innocently or
negligently.
Before the 13th century, the doctrine of mens rea was almost non-existent.
Even then it was not completely disregarded and was kept in view in awarding
the punishment. In the 13th century Roman Law, especially its conception of
Dolus and Culpa influenced English criminal law. The courts in England were
also influenced with the common law which emphasised moral guilt. In case a
felony was committed the guilt was determined according to the intention of the
accused. The notion of mens rea, as we understand it today was, however, fully
established during the 14th and 15th centuries and by the end of the 17th
century it was universally settled law that mens rea (guilty intention) is an
essential ingredient of crime. No act of the person was punishable unless the
same is done with evil intent.

1
1970 AC 132: (1969) 2 WLR 470 (HL).
2
History of Criminal Law, p. 95.
2.1. “Mens rea” and statutory crimes

The maxim has been applied to all common-law crimes in England without
any reservations. Its application to statutory offences was, however, uncertain
up to 1947. Application of this doctrine to statutory crimes is fully discussed in
two leading English cases, viz. R. v. Prince,3 and R. v. Tolson4.
In R. v. Prince5, Henry Prince was tried for having unlawfully taken away an
unmarried girl, below the age of 16 years, out of the lawful possession and
against the will of her father, under the belief that she was 18. The jury found
upon evidence that before the defendant took her away the girl had told him that
she was 18. It was held that the prisoner’s belief about the age of the girl was no
defence. It was argued that the statute did not insist on this knowledge of the
accused that the girl was under 16 as necessary for conviction, the doctrine of
mens rea, should, nevertheless, be applied and conviction be set aside in the
absence of criminal intention. Sixteen judges tried the case and all but one
unanimously held the defendant guilty. Brett J, who gave a dissenting
judgment, was of the view that in order to constitute an offence mens rea is
essential and it was necessary for the prosecution to prove mens rea on the part
of the accused. Bramwell J said that in offences which are legal wrongs (malum
prohibitum), it is the duty of the prosecution to establish mens rea; but in
offences which are malum in se, both moral as well as legal wrong, mens rea is
presumed and it need not be proved specifically. He held the defendant liable as
he had committed an act which was both a legal as well as a moral wrong.
Denman J convicted Henry on the ground that he knowingly committed a civil
wrong by taking the girl from the lawful custody of her parents. Blackburn J
took the view that the intention of the statute sufficiently appeared to have been
to punish abduction irrespective of any knowledge on the part of the accused
about the girl’s age. The real ground of conviction, however, was that the
accused had committed an act which was forbidden by the statute, and it was
not only a legal wrong but also a moral wrong.
The decision is very controversial and has been the subject of criticism by
many writers. Jerome Hall, an American jurist, said that the decision was
evidently influenced by the concern for the protection of young girls from sex
offenders, and the judges who decided this case shared the indignation with the
3
(1875) LR 2 CCR 154.
4
(1889) LR 23 QBD 168.
5
(1875) LR 2 CCR 154.
public in such cases. The decision has been regarded as unsatisfactory by
Russell, as it is in conflict with the established principles of criminal law. 6
In the other case of R. v. Tolson7, the accused was tried under Section 57 of the
Offences Against the Person Act, 1861 for having committed the offence of
bigamy. Under this section it was an offence for a married person to contract a
second marriage during the lifetime of the husband or wife as the case may be.
In this case Mrs Tolson was married to Mr Tolson in 1880 and after one year in
1881 she was deserted by her husband. She made all possible enquiries about
him and ultimately came to know that her husband had been destroyed in a ship
bound for America. Therefore, supposing herself to be a widow she married
another man in 1887. The whole story was known to the second husband and
the marriage was not a secrecy. In the meantime, Mr Tolson suddenly
reappeared and Mrs Tolson was charged accordingly. In the trial court she was
convicted for one day’s imprisonment on the ground that a belief in good faith
and on reasonable facts about the death of her husband is no defence to the
charge of bigamy. The accused went to the higher court by way of appeal.
The question before the Court of Appeal was whether Mrs Tolson had guilty
intention in committing the offence of bigamy. The court by majority set aside
the conviction on the ground that a bona fide belief about the death of the first
husband at the time of second marriage is a good defence in an offence of
bigamy. The court also laid down that the doctrine of mens rea would be
applied in statutory offences also unless the same is ruled out by the statute
either expressly or by necessary implication.
The observations of the court in the above case are not of universal
application and courts have refused to apply them. In R. v. Thomas Wheat8 an
uneducated man, believing in good faith that his solicitor according to his
instructions had obtained divorce from his first wife, married another lady. He
was convicted for the offence of bigamy on the ground that reasonable belief
about the dissolution of marriage is no defence to the charge of bigamy. The
two cases, i.e. Tolson case9 and Wheat & Stock case10 are quite distinct from
each other. In the former it was a mistake of fact and in the latter there was a

6
This decision was finally overruled by the House of Lords in B v. DPP, [2000] 2 AC 428.
See also, R. v. K, [2002] 1 AC 462 to the same effect, approving B v. DPP.
7 1889) LR 23 QBD 168
( .
8 1921) 2 KB 119
( .
9 1889) LR 23 QBD 168
(1 .
10 1921) 2 KB 119
(1 .
mistake of law. Mr Wheat did an act which was forbidden by law whereas Mrs
Tolson had no such intention.
Thereafter, there has been much confusion about the application of the
doctrine to statutory offences and it has correctly been said that there is an
eclipse of mens rea in statutory offences.11 The doctrine was resurrected and
made applicable not only to common-law offences but also to all statutory
offences by Lord Goddard CJ who observed in Brend v. Wood12:

The general rule applicable to criminal cases is actus non facit reum
nisi mens sit rea... . It is of utmost importance for the protection of the
liberty of the subject that a court should always bear in mind, that
unless a statute, either expressly or by necessary implication, rules out
mens rea as a constituent part of the crime, the court should not find a
man guilty of an offence against the criminal law unless he has a guilty
mind.

Since then the doctrine has consistently been applied in England according to
the particular circumstances of the case. 13 In Sherras v. De Rutzen14, it was held that
Section 16(2) of the Licensing Act, 1872 which prohibits the supplying of
liquor by a licensed person to a constable on duty, did not apply where the
licensed person bona fide believed that the constable was off duty. Wright J
said:

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, and both must be considered.

In the later years, the application of doctrine of mens rea has been almost
consistent in England and the requirement of guilty mind is ruled out only when
Parliament has expressly willed so, or the courts come to a conclusion that for
its proper implementation the statute does not require a guilty mind. Such
11
For details see, (1936) 52 LQR 60.
12
(1946) 62 TLR 462.
13
See, Harding v. Price, (1948) 1 KB 695 where accused had failed to report an accident.
He was acquitted on the ground that the statute must be read as implying mens rea as a
constituent of offence.
14 1895) 1 QB 918
( . See also, Sweet v. Parsley, 1970 AC 132: (1969) 2 WLR 470 (HL).
offences which make one criminally liable without any consideration of guilty
mind are known as “strict liability offences”. Strict liability offences constitute
an exception to the doctrine of mens rea.
Thus, mens rea as a constituting element of crime may be ruled out in the
following circumstances:
1. Where the language of the statute expressly rules out guilty mind as an
element of the offence.15
2. Where criminal liability is imposed only as a mode to enforce civil
liability, i.e. the offence is not “truly criminal” in nature. 16
3. When a statute is silent on mens rea in some offences, whereas mens
rea is expressly included in other offences defined in that statute. 17
4. When the act is a socially dangerous activity such as public nuisance,
possession of dangerous articles like drugs and weapons, smuggling or
environmental offences. 18

It is to be noted that mere absence of a word denoting mens rea in a statute is no

guarantee that the offence would not require guilty mind. The final decision in
this regards rests with the courts and is largely guided by the above stated rules.
Even in the strict or absolute liability, some mental element may be required;
for example, in possession offences, proof of “conscious possession” is required
for conviction.
In B (A minor) v. DPP19, where a boy of 15 years was charged under Section
1(1), Indecency with Children Act, 1960, for having committed an act of gross
indecency with a girl of 13 years, the House of Lords ruled him not guilty on
account of absence of guilty mind. The House of Lords specifically declared R.
v. Prince to be bad law and held that unless Parliament indicated otherwise, the
appropriate mental element is an unexpressed ingredient of every statutory
offence.20
In this way further cases have added little to the already existing principles of
law in this regard.

15
R. v. G., 2009 AC 92: (2008) 1 WLR 1379 (HL).
16
R. v. Woodrow, 1846 15 M&W 404 (Exch): 153 ER 907; R. v. Sandhu, 1977 Crim LR
288.
17
Cundy v. Le Cocq, (1884) LR 13 QBD 207; Pharmaceutical Society of Great Britain v.
Storkwain Ltd., (1986) 1 WLR 903 (HL).
18
See, Warner v. Metropolitan Police Commr., (1969) 2 AC 256 (HL); R. v. Howell,1977
QB 614: (1977) 2 WLR 716 (CA).
19
(2000) 2 AC 428: (2000) 2 WLR 452 (HL).
20
See also, R v. K., (2002) 1 AC 462: (2001) 3 WLR 471 (HL).
2.2. “Mens rea” and Indian law
Sir J.D. Mayne, Rattan Lal and Hari Singh Gour have taken the view that
doctrine of mens rea under the IPC is wholly out of place. Every offence is
defined and the definition states not only what the accused must have done, but
also 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 has nowhere
been used in the IPC but it has been applied in two different ways:

1. While defining offences, the words used indicate actual criminal intent
required for the offence. The expressions fraudulently, dishonestly,
voluntarily, intentionally, etc. used in the definitions indicate criminal
intent. No such words have, however, been used in case of offences
which cannot be committed by innocent persons. Such offences are
Waging war against Government [S. 121], Sedition [S. 124- A], etc.
2. The IPC contains a separate chapter on general exceptions [Ss. 76–
106] which indicates the circumstances where liability may be avoided by
proving lack of guilty mind. This negative method of applying mens rea in the
IPC has been found to be very useful. The doctrine of mens rea has been
applied by courts in India and it is now firmly settled proposition that mens rea
is an essential ingredient of an offence. 21 This point has come under judicial
scrutiny on many occasions both in the context of IPC and non-IPC offences.
In Srinivas Mall Bairoliya v. King Emperor22, a petrol dealer was acquitted on the ground
that there was no guilty intention on the part of the accused as the act was
committed without his knowledge. Similarly, in Ravula Hariprasada Rao v. State,23, the
observations of Goddard CJ were approved. In this case a servant of a petrol
dealer supplied motor spirit without coupons and in some cases took advance
coupons from consumers without supplying them the spirit, which was an
offence under the Motor Rationing Order, 1941. The Supreme Court held that
there were no grounds for conviction of the master, especially when he was
absent at the time of delivery of the spirit. He, however, was convicted for non-
endorsement on coupons by his servant which was mandatory and an absolute
rule, non-observance of which was punishable even without mens rea. The
Supreme Court in State of Maharashtra v. M.H. George24 reiterated the same principle. Here

21
Umashanker v. State of Chhattisgarh, (2001) 9 SCC 642.
22 1947 SCC OnLine PC 30: 947 SCC OnLine PC 30: AIR 1947 PC 135
1 .
23 IR 1951 SC 204: (1951) 52 Cri LJ 768
A .
24 IR 1965 SC 722: (1965) 1 SCR 123
A .
the accused was prosecuted by the State for bringing into India prohibited
quantity of gold in violation of the statutory prohibitions imposed under Section
8 of the Foreign Exchange Regulation Act, 1947 and notification issued
thereunder. Holding the accused liable, the court held that having regard to the
gravity of the issues, Parliament intended the prohibition to be absolute. Hence,
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) or Section 23(1-A) 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. So, if the Central Government, by notification in the Official
Gazette, imposed a ban on any person bringing gold into India, any person who
brought such gold in contravention of the notification would be guilty of an
offence under this section.
This question was once again agitated before the Supreme Court in Nathulal v. State
of M.P.25 In this case the accused, a food grain dealer, applied for a licence and

deposited the requisite licence fee. He without knowledge of rejection of his

application purchased food grains and sent returns to the licensing authority
who on checking found that it was in excess of the quantity permitted by
Section 7, M.P. Foodgrains Dealers Licensing Order, 1958. The accused on
being prosecuted was, however, acquitted on the ground that he had no guilty
mind. The Supreme Court in its judgment observed:

The accused was under a bona fide impression that the license in regard
to which he had made an application was issued to him though not
actually sent to him. The fact that the licensing authority did not
communicate to him the rejection of his application confirmed the
accused’s belief. It was on that belief that he stored the food grains and
was sending returns to the authorities concerned. He could not,
therefore, be said to have intentionally contravened the statutory
provisions.

Generally, offences affecting human health and economy of the State are in
terms of absolute prohibition and the offender is liable without proof of guilty
knowledge.26 Thus a seller of food is under the duty of ascertaining at his peril
25
AIR 1966 SC 43: 1966 Cri LJ 71.
26 arjoo Prasad v. State of U.P., AIR 1961 SC 631: (1961) 1 Cri LJ 747
S ; Bhagwan Das v. Delhi Admn., (1975) 1
SCC 866:1975 SCC (Cri) 410.
whether the article of food conforms to the standard fixed by the statutes unless
such statutes, expressly or by necessary implication, make intent an element of
offence.27 In the words of Lord Wright, “Intention to commit a breach of statute
need not be shown. The breach in fact is enough.” 28
Another such instance was the now-repealed Opium Act, 1878. Section 10 of
the Opium Act, 1878 provided,
In prosecutions under Section 9, it shall be presumed, until the contrary is
proved, that all opium for which the accused person is unable to account
satisfactorily is the opium in respect of which he has committed an offence
under this Act.
In a case29 arising under Section 9 of the above Act, Mathew J observed:

Normally, it is true that the plain ordinary grammatical meaning of the

words of an enactment affords the best guide. But in cases of this kind,
the question is not what the words mean but whether there are
sufficient grounds for inferring that Parliament intended to exclude the
general rule that mens rea is an essential element in every offence. And,
the authorities show that it is generally necessary to go behind the
words of the enactment and take other factors into consideration. So, in
the context it is permissible to look into the object of the legislature and
find out whether, as a matter of fact, the legislature intended anything
to be proved except the possession of the article as constituting the
element of the offence. Even if it be assumed that the offence is
absolute, the word ‘possess’ in Section 9 connotes some sort of
knowledge about the thing possessed.

In Sukumaran v. Saraswathi30, the Kerala High Court has held that the
offence of bigamy under Section 494 IPC, though defined without any
reference to guilty mind, will be read subject to the doctrine of mens rea.
Therefore, a man who had a bona fide belief in dissolution of his first

27
American Jurisprudence, Vol. 35 (2nd Edn.) 864 quoted with approval in Pyarali K.
Tejani v. Mahadeo Ramchandra Dange, (1974) 1 SCC 167:1974 SCC (Cri) 87.
28
Mcleod v. Buchanan, (1940) 2 All ER 179 (HL), cited in Pyarali K. Tejani v. Mahadeo Ramchandra
Dange, (1974) 1 SCC 167:1974 SCC (Cri) 87.
29
Inder Sain v. State of Punjab, (1973) 2 SCC 372: 1973 SCC (Cri) 813. In this case the
accused got a parcel of apples released from the Railways. On being intercepted by the police
the parcel was found to contain opium along with apples. He was held guilty.
30
1983 SCC OnLine Ker 230: 1984 Cri LJ 317 (Ker).
marriage shall not be guilty of bigamy for contracting the second marriage
even if his belief was mistaken as he lacked mens rea. Similarly, in State v.
Siddhannath31, it has been held that the offence under Section 171-D IPC
requires mens rea, although defined without any word denoting guilty
mind. Same is the case with the offence defined in Section 179 IPC, and the
Supreme Court has observed that the guilt under the section will depend
upon the proof of mens rea, i.e. only a wilful refusal will be punishable and
not an unwitting omission. 32

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.33
Where an offence is created by a statute, however comprehensive and
unqualified the language of the statute may be, it is usually understood as
silently requiring that the element of mens rea should be imported in the
definition of the crime, unless a contrary intention is expressed or implied. In
other words, the plain words of the statute are read subject to a presumption that
mens rea has not been ousted by the particular enactment. But this rule has
several exceptions. One is a class of acts which are not criminal in any real
sense, but which in the public interest are prohibited under a penalty. Another
class comprehends some, and perhaps, all, public nuisances. Lastly, there may
be cases in which, although the proceeding is criminal in form, it is only a
summary mode of enforcing a civil right.34
The element of mens rea is not required beyond the point that the facts must
show an intention on the part of the person accused to do the forbidden act. In
the case of modern statutory offences, the maxim has no general application 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 statute unless the same either expressly or by necessary
implication is ruled out by the statute.

31
1956 SCC OnLine MP 93: 1956 Cri LJ 1327.
32
Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424: 1978 SCC (Cri) 236.
33
Nathulal v. State of M.P., AIR 1966 SC 43: 1966 Cri LJ 71.
34 tate of Gujarat v. Acharya D. Pandey, (1970) 3 SCC 183: 1971 SCC (Cri) 1
S . See also, SEBI v. Shriram Mutual
Fund, (2006) 5 SCC 361; SASI Enterprises v. CIT, (2014) 5 SCC 139: (2014) 2 SCC (Cri)
484.