Essential Elements of Crime:

It is relevant to know the basic building blocks or constituents of crime. Often the
analysis of an offence includes the separation of its component parts into ‘external
elements’ i.e. acts of the accused and ‘mental elements’ i.e. intention. As a general
rule, a criminal offence consists of both the actus reus(external elements) and mens
rea (state of mind). According to Lord Diplock ‘the conduct of the accused and his
stated mind at the time of that conduct’ is an essential element of crime. The
cardinal principle of criminal law is contained in the maxim ‘actus non facit reum,
nisi mens sit rea’. It means an act does not make a person guilty of a crime unless
the mind is also guilty. This principle of criminal liability can be traced back to the
fairly earlier periods. The general rule of English law follows that a person will be
criminally liable if he has committed a prohibited act, which is by a certain state of
mind. Clearly, there is a difference between an accident which causes injury and a
deliberate act which injures another. The difference may not be in the act, but in the
state of mind of the actor. However, certain crimes do not require any particular state
of mind. These crimes are classified as strict liability offences. Often, in criminal
law, a crime is committed when there is a combination of actus reus and mens rea.
The actus reus for each crime must be established. It is not enough that mens rea for
the crime was present, if actus reus was not committed as well. The main reason for
this is that criminal law insists on some expression of someone’s criminal thoughts
through their actions before it will intervene to punish them. Moreover, there is no
criminal liability for possessing a particular state of mind. Mens Rea and deliberate
active act by the accused is essential to constitute offence (Gangula Mohan Reddy
v. State of Andhra Pradesh AIR 2010 SC 327).

i. Actus-reus element- A willed human action that results in evil consequences

ii. Mens-rea element- Guilty mind on the part of the wrongdoer to indulge in a
proscribed act or omission leading to harmful consequence to an individual or
to the society
iii. Concurrence element- requirement of prohibited act being done with the
proscribed guilty mind.
The elements of specific crimes are elaborately provided for in the codified law, the
Indian Penal Code, 1860 and other Special and Local Laws relating to crimes. The
Penal Code provides for the exact nature of actus-reus (prohibited act or omission)
and mens-rea of each offence as the positive requirement to establish criminality.

Concept of actus reus relates to an ‘act’ or conduct that leads to a specified harm
and may include a direct conduct such as shooting, stabbing or moving property, as
well as indirect conduct such as instigation, aiding etc. of someone else. As against
this mens rea is a wide term of elastic signification and covers a broad range of
mental states and conditions, the existence of which would give a clue to the
blameworthiness of the wrongdoer. Mental element may relate to the act/conduct in
question or its harmful consequences. The words such as intention, knowledge,
likelihood, probability, etc are used to connote the mental element required for
different crimes/offences. Though the traditional theorisations about the crimes treats
mens rea or mental blameworthiness as a cardinal requirement for crime, law does
accept that in exceptional situations criminal liability may arise even in the exclusion
of mens rea. In such exceptional cases either mens rea is implied or considered
superfluous on grounds of exigency. From the view point of mens rea, wrongs may
be classified under:

1. Intentional wrongs- Where the wrongs are committed with highest state of
guilty mind
2. Wrong with knowledge or likelihood- Where wrong is done with the
medium state of guilty mind.
3. Wrong is committed with rash or negligence: Where lowest state of guilty
mind is involved.

Crime, “Offence” and its Variants

The Penal Code and the Code of Criminal Procedure, 1973 have used the term
offence instead of crime. The rationale for such a change of terms is that: First, crime
is a generic term and “Offence” relates to specific prescribed conduct covered by
each offence, and Second, establishment of the elemental requirement of a specific
offence leads to justifications for imposing the prescribed punishment. Section 40 of
the Indian Penal Code

“ Except in the [chapters] and sections mentioned in clauses 2 and 3 of this

section the word “offence” denotes a thing made punishable by this Code”

Again, Section 2 (n) of the Code of Criminal Procedure lays down: “Offence”
means “an 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”. The Criminal Procedure
Code further classifies offences for the purposes of different criminal justice
processes, as follows:

a) For the purposes of arrest and investigation “cognisable-offence” (Section 2

(c) CrPC) and “non-cognisable offence” (Section 2 (b) CrPC)- cognizable
offence are generally more serious offences as per the First Schedule of the
CrPC. In view of their seriousness the Code provides for distinct first
information, investigation and arrest procedure in regard to them. Non
cognisable offences are less serious and therefore investigation and arrest in
regard to them requires a direction from the appropriate judicial authority.
b) For the purposes of Bail ``bailable offence” and “non-bailable offence”
(Section 2 (a) like cognizable offence and non-cognisable offence, use the
categorisation conveying the seriousness of the offence in terms of the
scheme of the First Schedule of the Code. In bailable offences bail is a matter
of right, but in cases of non bailable offence it is a matter of judicial discretion.
c) For the purposes of “compounding” Proceedings Section 320 of the Code
provides an elaborate scheme for the compoundable offence, which are
 treated more like civil wrongs that can be compromised with the permission of
the court.
d) For the purposes of Plea-bargaining and sentencing

The provisions contained in this section are nothing but a statement of fact and
cannot be regarded as a definition of an offence. An offence may be described,
although not defined as a result of human conduct, which is the policy power of the
governing power in the state to prevent. Once a penal statute prescribes punishment
for infringement of a certain act or omission it becomes an offence.

Typologies and Patterns of Crime:

As the principal source of all the crimes in India, the Indian Penal Code, 1860
provides for the multiple forms of crimes that jeopardise the individual and the
societal interests. The scheme followed by the Penal Code begins with four general
chapters relating to introduction (SS. 1 to 5), General Explanations (SS. 6 to 52), Of
Punishments (SS. 53 to 75) and General Exceptions (SS 76 to 106), followed by
three inchoate (incomplete) crimes, namely of Abetment (SS. 107 to 120), criminal
conspiracy (SS. 120A & 120B) and Of Attempt to Commit Offences (Section 511).
These seven chapters that relate to general principles are followed by over sixteen
chapters devoted to specific offences, namely of Offences Against State (SS. 121 to
130), Of Offences Relating to Army, Navy, Airforce ( SS. 131 to 142), Of Offences
against the Public Tranquillity (SS. 141 to 160), Of Offences by or relating to Public
Servants (SS. 161 to 171) , Offences Relating to Elections (SS. 171A to 171I), Of
Contempt of the Lawful Authority of Public Servants (SS. 172 to 190), Of False
Evidence and Offences against Public Justice (Section 191 to 267), Of Offences
Relating Public Justice (SS. 191 to 267), Of Offences Relating to Weights and
Measures (SS. 264 to 267), Of Offences affecting Public Health, Safety,
Convenience, Decency and Morals (SS. 268 to 294 A), Of Offences Relating to
Religion (SS. 295 to 298), Of Offences Affecting Human Bodies (SS. 299 to 377), Of
Criminal Breach of Contract of Service (S. 491), Of Offences Relating to Marriage
(SS. 493 to 498), Of Cruelty etc (S. 498A), Of Defamation (SS. 499 to 502), Of
Criminal Intimidation, Insult, Annoyance (SS. 503 to 510). The Criminal Law
Amendment Act, 2013 has affected substantial changes in the offences affecting the
human body Chapter XVI, by adding eight new category of offences, and enhancing
the quantum of punishment in sections 354 , 376 (1), 376A, 376 B, 376C, 376D and
376 E. In all the specific offences under the Penal Code can be arranged into three
broad groupings, namely:

(a) Those designed to protect individual bodily and property interests.

(b) Those that are designed to protect the state and its institutional interests, and
(c) Those that are designed to protect the community or public interest in religion,
marriage, health, decency and morals.
Though the Penal Code is the major source of crimes, crimes are located in several
other special and local penal statutes relating to special interests such as protecting
the economy against the corrupt officials, protecting vulnerable groups such as
women, Scheduled Castes and Scheduled Tribes etc. The Prevention of Corruption
Act 1988, the Dowry Prohibition Act 1961, The S.C. & S.T. Prevention of Atrocities
Act, 1989, The Protection of Children Against Sexual Offences Act, 2012 are the
leading examples of special penal statutes.

Furthermore, the traditional modes of committing crimes has also profoundly

influenced the thinking about crimes and added the concepts of new crimes such as
‘organised crimes’, ‘white collar crimes’, ‘corporate crimes’, ‘cyber crimes’ etc . The
introduction of electronic technology has created enormous opportunities to invent
new modes of commission of money laundering crime, internet frauds or many other
types of cyber crimes. With the enormous growth in electronic technology the
incidence of cyber crimes have risen manyfold, posing serious problems for the law
enforcement agencies. The statistics quoted below give an indication of increasing
incidence of cyber crimes during 2011 to 2015.

Source: ASSOCHAM- Mahindra SSG Report, Jan 2015

FUNCTIONS OF DEVIANCE AND CRIMINALISATION

1. As a Measure of solidarity and stability:

“Crime brings together honest men and concentrates them”- Durkheim

(Division of Labor in Society)
This quote exemplifies the stance Durkheim took toward crime. He recognized
deviance as important to the well-being of society and proposed that challenges to
established moral and legal laws (deviance and crime, respectively) acted to unify
those that were not in opposition to the laws. The existence of laws and the strength
thereof are upheld by members of a society when violations are recognized,
discussed, and dealt with either by legal punishment (jail, fines, execution) or by
social punishment (shame, exile). Durkheim’s major concern was with the analysis
of social order; how stability is created and how the collective will is maintained in the
face of individualism. Emile Durkheim argued that deviance has an important part to
play in a well-ordered society.

Durkheim noted the functional aspect of crime in the following words:

There is no society that is not confronted with the problem of criminality. Its
form changes; the acts thus characterized are not the same everywhere; but,
everywhere and always, there have been men who have behaved in such a
way as to draw upon themselves penal repression. There is, then, no
phenomenon that represents more indisputably all the symptoms of normality,
since it appears closely connected with the conditions of all collective life."
(1963, p. 62 [excerpt from The Rules of the Sociological Method])

Following Durkheim many functionalists argue that crime or reaction to it brings

people together, thereby building social cohesiveness and solidarity which in turn
decreases crime. Durkheim's main functionalist thesis that criminal behavior exists
in all social settings is still the theoretical basis for many sociological inquiries of
crime and deviance. Other important writers who take a Functionalist perspective
include Merton, who further developed Strain Theory, and Hirshi. By publicly
enforcing formal sanctions or punishments, collective ideas about social morality
are reinforced. Boundaries are reinforced and existing values are reaffirmed. When
particular “nasty” crimes occur, communities are strengthened by their collective
dislike for it (like the 9/11 attack). The criticism of the functionalist approach is that it
ignores individuals in society. For example, how is crime functional for victims?
Functionalism fails to explain why crime happens in the first place, only gives the
functions that it serves. Moreover, some crimes have no benefits in society –how
does child abuse help?

2. As a measure of Social Defence:

Hobbes that emphasizes on the dysfunctions of deviance and crime, individuals who
break the law need to be controlled and punished for they threaten the security and
stability of the society. Social defence theory developed in the early twentieth century
adhered to protection of society by neutralization and resocialization of offenders,
whereby fixed penalties were set aside for individualized punishment. The term
social defence is of Italian origin. It has been frequently used in the penal theory of
Continental Europe. Social Defence could well be taken as an art and science of
defending society against all odds, crises and problems which threaten to undermine
the very structure of societal institutions and agencies. According to this theory
individuals who break the law need to be controlled and punished for they threaten
the security and stability of the society. The New Classical thinkers are supporters of
this view. According to them, the rise of crime beyond historically recorded levels,
can create-a break-down of community ties, and a rise in informal, vigilante-type
protective responses which further tear a community apart (this is almost opposite of
what Durkheim or Marx thought about crime). This view is significant in relation to
rise in crime like terrorism, naxalism that demands that the society needs to be
protected and secured at any cost. This includes measures by both by stringent
anti-terror laws and rigorous implementation of interrogation, arrest and preventive
detention measures. The modern connotation of social defence clearly rejects the
primitive measures for the protection of society, decries the retributive system of
punishment, introduces the element of humanity into the administration of the
criminal justice system and establishes the need to treat crime as a social fact and a
human act. In the light of this, social defence emerges as a new approach to the
problem of crime and as a new trend in the decision-making, which organises the
means of controlling crime. Marc Ancel reiterates that the modern concept of social
defence often came to be a synonym for action of a non-penal nature, or at any rate,
for the treatment of the offender that is less punitive and repressive.

3. As an Indicator to social change:

Deviance provides the society the boundaries to determine acceptable and

unacceptable behaviours in society. Durkheim argues that all social change begins
with some form of deviance. In order for changes to occur, yesterday’s deviance
must become today’s normality. Since a certain amount of change is healthy for
society, so is deviance. If the collective sentiments are too strong there will be little
deviance, but neither will there be any change, or any progress. The collective
sentiments must have, therefore, only ‘moderate energy’ so they do not crush
individuality; both the originality of the criminal, and the originality of the genius.
When crime occurs and sympathy for the criminal occurs, it may prompt a debate
and signal a change in values and laws. While most violations of norms are greeted
with opposition by the masses, others are sometimes not, and those violations that
gain support often are re-examined by that society. Often, those activities that once
were considered deviant, are reconsidered and become part of the norms, simply
because they gained support by a large portion of the society. In sum, deviance can
help a society to rethink its boundaries and move toward social change, hopefully for
the greater benefit of the group. When the law is clearly out of step with the feelings
and values of the majority, legal reform is necessary. Criminals therefore, perform a
crucial service in helping the law to reflect the wishes of the population and
legitimising social change.

Points to remember:
1. Concept of deviance is much broader than that of crime, which refers only to
nonconformist conduct that breaks a law.
2. Deviant behaviour refers to actions which transgress commonly held norms.
What is defined as deviant differs across time and place. The concept of
deviance is broader than that of crime, which is restricted to lawbreaking.
3. It is difficult to define what constitutes criminal law. Probably the best definition
is to consider whether the alleged crime involves using procedures that attend
criminal law. The extent of crime in any society is difficult to assess, as not all
crimes are reported.
4. The Criminal law seeks to deter people from the conduct that causes sufficient
harm to society and sets out the circumstances in which people may face
punishment. A breach of criminal law is different from breach of other kind of
law (eg. civil law) as it contains formal moral censure.
5. Organized crime is likely to become more prevalent as globalization facilitates
the rapid transfer of people, goods and transactions across the globe.
Organized crime especially in relation to information technology, money
laundering and internet fraud are emerging.
6. Various sociologists like Bentham, Durkheim, and Hobbes have studied the
diverse functions/dysfunctions of rule making or deviation. Durkheim
advocated the functional theory of crime. Philosophers like Hobbes, Ancel,
Carmignani have propounded the social defence theory which adhered to
protection of society by fixing penalties. Crime and deviance also leads to
social change.