Professional Documents
Culture Documents
Contents
(I) INTRODUCTION .......................................................................................................................... 3
(II) APPLICATION OF MENS REA................................................................................................ 4
(III) HUMAN BEING IS AN ESSENTIAL ELEMENT ................................................................. 4
(IV) STATE OF MIND ......................................................................................................................... 5
(V) DEVELOPMENTS IN MENS REA .......................................................................................... 6
(VI) STRICT LIABILITY ..................................................................................................................... 7
(VII) Statues where Mens Rea is Absent. ............................................................................... 8
(VIII) Statues Indicate Need to Establish Mens Rea .......................................................... 9
(IX) SUPREME COURT TAKE ON MENS REA........................................................................12
(X) DYNAMIC NATURE OF STATE OF MIND........................................................................12
Conclusion....................................................................................................................................................14
2 LAW OF CRIMES
Acknowledgment
It is my imperative duty to thank the following people for the successful completion of my criminal
law project,
- For the clarity Professor Dr.Aquib Husain brings into teaching thus enabling us to have a
better understanding of his subject. I also feel obliged to thank him for providing us with
such easy topics to choose from.
- The very cooperative and friendly staff members in the Central and Law Library who were
instrumental in our finding the necessary books without wasting much time. It has to be
noted that their contribution is essential as our University is yet to get a fully functional
centralized database for its libraries.
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By Sharjeel Ahmad
Abstract
“Means Rea means guilty mind. This paper projects the essence of means rea in
IPC. It analyses that the mental element in crime is one of the most important
concepts of substantive criminal law and objective of incorporating it to the penal
code. It studies the development of the mens rea and its implication in the code
also describes how means rea can be established.”
(I) INTRODUCTION
Mens Rea or the mental element in crime is one of the most important
concepts of substantive criminal law. Criminal guilt would attach to a
man for violations of criminal law. However, the rule is not absolute
and is subject to the limitations indicated in the Latin maxim, actus
non facitreum, nisimenssit rea 1. “There can be no crime, large or small,
without an evil mind,” says Bishop. “It is therefore a principle of our
legal system, as probably it is of every other, that the essence of an
offence is the wrongful intent, without which it can not exist 2”. The
concept of Mens Rea, guilty mind, is based on the assumption that a
person has the capacity to control his behaviour and to choose between
alternative courses of conduct 3.
1 “The general rule of English law, is, that no crime can be committed unless there is mens rea.” Williamson v.
Norris, 1899 Q.B. 7, 14 PER Lord Russell, C.J. “It is a sacred principle of criminal jurisprudence, that the intention to
commit the crime, is ofthe essence ofthe crime, and to hold, that a man shall be held criminally responsible for an
offense, of the commission of which he was ignorant at the time, would be intolerable tyranny.” Duncan v. State, 7
Humph. 148, 150 (Tenn. 1846)
2 Bishop, Criminal Law, 287 (9th ed. 1930).
3 Biggs, ChiefJudge in United States v. Currens 290, F. 2 d 751 (3 rd Cir. 1961), (United States Court of Appeals), “It
is only through this assumption that society has found it possible to impose duties and create liabilities designed to
safeguard persons and property... Essentially these duties are intended to operate upon the human capacity for
4 LAW OF CRIMES
choice and control of conduct so as to inhibit and deter socially harmful conduct. When person possessing capacity
for choice and control, nevertheless breaches a duty of this type he is subjected to the sanctions of criminal law.”;
Nicola Lacey, State Punishment: Political Principles and Community Value (1988) p.63. “This concept of
responsibility [from H. L.A. hart’s Punishment and Responsibility (1968)] consists in both a cognitive and a
volitional element: a person must both understand the nature of her actions, knowing the relevant circumstances
and being aware of possible consequences, and have a genuine opportunity to do otherwise than she does -to
exercise control over.her actions, by means of choice.”
4 Baijanti Bai v. State ofM.R, 2000 Cri LJ 3253; Jai Lai v. Delhi Administration, AIR 1969 SC 15 : 1969 Cri LJ 259: S.
6 Dr. Glanville Williams, The Mental Element in Crime, p 9 (1927) United States v. Currcns 290. F. ed. 751 (3 rd Cir.
1961). United States Court of Appeals); Sayre, Mens Rea, 45 Harv L. Rev, p. 975, “No problem of criminal law is
more fundamental importance or has proved more baffling through the centuries than the determination ofthe
precise mental element or mensrea necessary for crime.”
7 Sayre, Mens Rea, 45 Harv L Rev,p. 1021-1022.
8 As Gajendragadkar,J. in Statev. Caulfield55 Bom.LR 768-771; See also Bridge, J. in Fagans. Metropolitan Police
kicked, I do not know any very satisfactory evidence that a man was generally held liable either in Rome or in
England for accidental consequences even of his own act”.
11 “Law in its earliest days tries to make men answer for all the ills of an obvious kind that their fellows.” Pollock
and Matland, History ofEnglish Law, (2d ed. 1923) 470. See also Holdsworth, History ofEnglish Law(3d ed. 1927) 50-
54. “The doer of a deed was responsible whether he acted innocently or inadvertently, because he was the doer;
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the owner of an instrument which caused harm was responsible because he was the owner, though the instrument
had been wielded by a thif; the owner of an animal, the master of a slave, was responsible because he was
associated with it as owner, as master.”
12 Prof Wigmoret, quoted in R.C. Nigam, Law ofCrime in 7bo,/a;Vol.l,p.82;See also Pollock and Maitland, History
17 In Brendv. Wood, Lord Goddard, L.J. said, "It is ofthe utmost importance for the protection ofthe liberty ofthe
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 a crime, the court should not find a man guilty ofan offence against the
criminal law unless he has a guilty mind.
18 Pound, The Spirit ofCommon Law,p.52.
19 Baroness Wootton, Crime and CriminalLaw,(2nd ed 1981).
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and protects the public 20. It is also doubted whether strict liability
serves a useful purpose in criminal law21.
another, AIR 1989 SC 1011, Prohibited act constitutes offence- Mens reals irrelevant: Shah Ashu Jaiwant v. State of
Maharashtra, AIR 1975 SC 2178.
24 PyaraliK. Tejaniv. Mahadeo Ramchandra Dange and others, AIR 1974 SC 228.
25 Rajasthan Pharmaceuticalv. State ofKarnataka, AIR 1981 SC 809.
26 Krishan Gopal Sharma v. Govt, ofNCT ofDelhi (1996) 2 Crimes 218 (SC): Pyare K. Tejaniv. Mahadeo Ram Chandra
SC 476.
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35 Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, Additional Collector ofCustoms, Calcutta and others, AIR
1964 SC 1140.
36 Director ofEnforcementv. M/s. MCTM. Corporation Pvt. Ltd. andothers, AIR 1996 SC 1100.
37 The Essential Commodities Act, 1955.
38 State ofM.P. v. Narayan Singh andanother, AIR 1989 1789.
39 Directorate ofEnforcement v. MCTMCooperation, 1996 Cri. LJ 1823 (SC).
40 State of Maharashtra v. MayerHans George, AIR 1965 SC 722: AIR 1964 Bom 274, Reversed.
41 State ofT.N. through Superintendent ofPolice CBI/SITv. Nalini and others, AIR 1999 SC 2640.
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47 See. also the decisions of other courts as well Ravula HariprasadRao v. The State ofMadras, A.I.R. 1951 S.C. 204;
State ofMaharashtra v. M.H. George, AIR 1965 SC 722; R, Balakrishna Pillai. v. State ofKerala,AYR 2004 SC 1012,
Sadak Ah' v. Emperor, A.I.R. 1948 Cal. 47; Sri Nivas Mali v. Emperor, A.I.R. 1947 P.C. 135; Ammav. P. Nair, 1954 Ker.
L.T. 977; In re. KasiRaja, A.I.R. 1953, Mad 156; Pantan Venkayya, A.I.R. 1930 Mad. 246.
48 Michael Jefferson, Criminal Law,p.l 16, People's Union for Civil Liberties and another v. Union of India, AIR 2004
SC 456.
49 Queen v. Tolson (1889) 23 QBD 168.
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consent. Under the Indian Penal Code these states of mind pre-
requisite for criminality has been expressly involved in every definition.
The distinction between the offences of culpable homicide and
murder is the presence of special mens rea which consists of four
mental attitudes in the presence of any of which the lesser offence
becomes greater. These attitudes are stated in Section 300, IPC as
distinguishing murder from culpable homicide not amounting to
murder50.
The "intent" and "knowledge" in the ingredients of Section 299
postulate the existence of positive mental attitude and this mental
condition is the special mensrea necessary for the offence. The guilty
intention in the first two conditions contemplates the intended death of
the person harmed or the intentional causing of an injury likely to
cause his death. The knowledge in the third condition contemplates
knowledge of the likelihood of the death of the person51.
The basic requirement to bring home the accusations under Section
405 are the requirements to prove conjointly (1) entrustment and (2)
whether the accused was actuated by the dishonest intention or not
misappropriated it or converted it to his own use to the detriment of the
persons who entrusted it. As the question of intention is not a matter
of direct proof, certain broad tests are envisaged which would generally
afford useful guidance in deciding whether in a particular case the
accused had mensrea for the crime52. For establishing the offence of
cheating, the complainant is required to show that the accused had
fraudulent or dishonest intention at the time of making promise or
representation53. For the purposes of holding the accused guilty under
50 Subhash Shamrao Pachundev. State ofMaharashtra, AIR 2006 SC 699, “the ingredients of the said Exception 4
are (i) there must be a sudden fight; (ii) there was no premeditation; (iii) the act was committed in a heat of
passion and (iv) the assailant had not taken any undue advantage or acted in a cruel manner.”
51 Jayarajv. The State ofT.N., AIR 1976 SC 1519: AIR 1966 SC 148 followed.
52 Anwar ChandSab Nanadikar\. State of Karnataka, AIR 2004 SC 986.
53 Him LaiHari LaiBhagwativ. C.B.I., NewDelhi, AIR 2003 SC 2545.
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Conclusion
The application of mens rea in statutory offences is not clear. As Russel55 puts it, "The policy of
the courts (re: mensrea in statutory offences) is unpredictable". Reasons have been given for and
against the imposition of strict liability for the violation of some offences in which the
prosecution need not to prove the accused's mind at fault for conviction. However, neither the
justifications nor the criticisms alone are satisfactory, There is need of proper balancing between
these two different approaches. The idea that crime should contain no mens rea and of strict
offences to replace mens rea one56 is wholly unacceptable and liable to be criticised.
It is true that for the protection of the liberty of the citizen, in the definition of offences
blameworthy mental condition is ordinarily an ingredient either by express enactment or clear
implication; but in Acts enacted to deal with a grave social evil, or for ensuring public welfare,
especially in offences against public health, e.g. statutes regulating storage or sale of articles of
food and sale of drugs, essential commodities, it is often found necessary in the larger public
interest to provide for imposition of liability without proof of a guilty mind57.
Yet the legislature may prohibit an act or enforce a duty in such words as to make the
prohibitions ofthe duty absolute: To ascertain whether a particular Act of Parliament has that
effect or not, regard must be had to the object of the statute, the words used, the nature of the
duty laid down, the person on whom it is imposed, the person by whom it would in ordinary
circumstances be performed, and the person upon whom the penalty is imposed 58.
The mens rea means some blameworthy mental condition, whether constituted by
knowledge or intention or otherwise. The plain words of the statute are read subject to a
presumption, 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. But this rule has several
exceptions. The principal classes of exceptions may be reduced to three. One is a class of acts
which are not criminal in any real sense, but are acts 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 really only a
summary mode of enforcing a civil right59.
To sum up, it can rightly be said that Mens rea is an essential ingredient o-j of a criminal
offence60. A statute may exclude the element of mens rea; it is, however, a sound rule of
Gopaldas Udhavdas Ahuja and another v. Union of India and others, AIR 2004 SC 3830; Union of India and others v.
M/s. Ganesh Das Bhojraj, AIR 2000 SC 1102; Dr. D.C. Saxena andDr. D.C. Saxena v. Hon'ble the ChiefJustice of India,
16 LAW OF CRIMES
construction which is adopted in England and also accepted in India, to construe a provision
which creates an offence in conformity with the common law rather than against it except where
the statute expressly or by necessary implication excludes mens rea. Of the question whether the
element of guilty mind is excluded from the ingredients of an offence the mere fact that the
object of the statute is to promote welfare activities or to eradicate a grave social evil is not by
itself decisive. Only where it is absolutely clear that the implementation of the object of the
statute would otherwise be defeated that mens rea may, by necessary implication, be excluded
from a statute. The nature of the mens rea that would be implied in a statute creating an offence
depends on the object of the Act and the provisions thereof.
AIR 1996 SC 2481; State of Maharashtra v. Mayer Hans George, AIR 1965 SC 722; Jaswantrai Manila! Akhaneyv.
The State ofBombay, AIR 1956 SC 575.
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BIBLIOGRAPHY
• BOOKS
o K.D. GAUR – CRIMES
o Michael Jefferson, Criminal Law
o BISHOP – CRIMINAL LAW 9th EDITION
o RATANLAL & DHIRAJLAL
• Cases
o Queen v. Tolson (1889) 23 QBD 168.
o Jaswantrai Manila! Akhaney v. The State ofBombay, AIR 1956 SC 575.
o State ofT.N. through Superintendent ofPolice CBI/SITv. Nalini and others, AIR
1999 SC 2640.
o Kalpnath Raiw. State through C. B. AIR 1998 201.
o SheopatSingh v. RamPratap, AIR 1965 SC 677
o Anwar ChandSab Nanadikar\. State of Karnataka, AIR 2004 SC 986.
o Him LaiHari LaiBhagwativ. C.B.I., NewDelhi, AIR 2003 SC 2545.
o AnilKumarBose v. State ofBihar, AIR 1974 SC 1560.
o State ofGujaratv. KansaraManila!Bhikhalal, AIR 1964 SC 1893.
o TheEclipse ofMens Rea, The law Quarterly Review (1936) p. 66.
o Ravula HariprasadRao v. The State ofMadras, A.I.R. 1951 S.C. 204.
o State ofMaharashtra v. M.H. George, AIR 1965 SC 722.
o Balakrishna Pillai. v. State ofKerala,AYR 2004 SC 1012.
o Sadak Ah' v. Emperor, A.I.R. 1948 Cal. 47.
o Sri Nivas Mali v. Emperor, A.I.R. 1947 P.C. 135.
o Ammav. P. Nair, 1954 Ker. L.T. 977.
o KasiRaja, A.I.R. 1953.
o Mad 156; Pantan Venkayya, A.I.R. 1930 Mad. 246.
• Online Refrences
o SCC ONLINE
o MANUPATRA
o LEXIS NEXIS