The Indian Penal Code

GENERAL INTRODUCTION
I
Nature and Definition of Crime
criminal are looked upon
Introduction.-It is true that both crime and
in society, but it is also
With greatest hatred by all sections of the people
of crimes has always been
one
true that the study and research of the law of
the attractive branches of Jurisprudence since the early years
of most
been as old as the civilisation
human civilisation. In fact the law of crimes has
into groups or associations the
itself. Wherever people organised themselves
behaviour of the members of that
need for some sort of rules to regulate thethere were rules of the
group inter se has been felt,
and where society, its
infraction was inevitable. And there lies the necessity of devising some ways
and means to curb such tendencies in the society that lead to violation of its
rules. In every organised society certain acts are forbidden on the pain of
punishment. Where one person injured another and the injury could
adequately by money
be compensated wrong-doer
value, the required
was
pay damages or compensation to the wronged individual. But in certain cases
to

in addition to the liability to pay compensation the State imposes certain

penalties upon the wrong-doer with the object of preserving peace in the
society and promoting good behaviour towards each other and towards the
community at large
However, the problem arises as to what acts should be forbidden, or
what acts should be selected for punishment by the society or the State. In
other words, what acts should be declared as crime.According to Terence
Morris,: fCrime is what society says is crime by establishing that an act is a
violation of the criminal law. Without law there can be no crime at al
although there may be moral indignation which results in law being enacted."
The concept of crime has always been dependent on public opinion. As
we already know law refiects the public opinion of the time. More than any
other branch of law, criminal law is the mirror of public opinion. In order
to know the nature and the content of crime we must first of all know what
is law, because the two questions crime and law are so closely related with
each other that it is very difficult to understand one without knowing the
other. Law is the aggregate of rules set by men as politically superior, or
sovereign, to men as politically subject. Eaw is a command enjoining a course
of conduct to be observed by all the members of the society and is backed
of a
by a sanction. The command may be of a sovereign or the command
political superior to political inferiors, or the command of a legally constituted
and
body or the legislation duly enacted by a legally constituted legislature
1. Klare HJ; "Changing Concepts of Crime and Its Treatment", p. 17.
 INDIAN PENAL CODE

addressed to the members of the society in general.

As we hnow "Law is determined by the process...it political
with what most people recognise as minimum standards...not only Cords
enforcement of laws but the definition of behaviour as criminal is part of the
political process, the rejection of the law by otfenders is a torm of social
protest of which they may be only dimly aware." SOcial
Thus, law prescribes certain standards of conduct to be observed by the
people in society. These standards have the approval of the society in general
Any deviation from the standards of behaviour fixed by the society i
punished. Therefore, such conduct as does not accord with the prescribed
standard is loosely known as crime.
Thatbeing the definition of law, disobedience of law may be termed as
a crime. But disobedience of all law is not crime for an act done in breach
of law of contract, personal law or civil law
may not be a crime unless such
breach is by sone law declared as criminal. To a common man crimes
are
those acts
which people in society "consider worthy of serious
condemnation" "Crime is said to be an act which is both forbidden by law
and against the moral sentiments of
the society."" Murder,
forgery and cheating etc. are the acts which people in civilised robbery,
theft,
society
approve and therefore, they are termed crimes. Thus for an 'act' to be a
do not
rime, it must be one done in violation of law
be and at the same time it should
opposed
to the moral sentiments of the
society. -But morals' are relative
and morality, know, is a
as we
the change in the necessities of varying concept for it goes on changing with
the society of the times. Moral values
from country to country, from time to vary
same country. This is evident from
time, and fronm place to
place in the
the fact that the same act is not
as crime in different declared
countries. For example,
adultery, suttee,
Adultery is a crime under the Indian Penal Code; whereas itpolygamy etc.
some of the continental countries.
is not so in
woman on the funeral
Suttee which means burning of a married
pyre after the death of her husband, was considered
to be a virtuous act in India a few
centuries back, but it is now a crime
under the Indian Penal Code.
Polygamy is prohibited among Hindus by the
Hindu Marriage Act, 1955; but there is no such
law for the Christians or the
Molhammedans. They are governed by their own
may even now have as many as four wives at apersonal
laws. A Muslimn
time. Christians are, of
course, restrained under their
personal law to practice polygamy.
Thus, due to the
varying nature of the content of crime
define crime with all
efforts to
perfection
To define crime is a task which
have failed. Russell has
rightly observed that
has so far not been
accomplished by any writer, In fact, criminal offences are satisfactorily
creation of the criminal
policy basically the
of the community who are adopted from time to time by those sections
security and comfort by
powerful or astute enough to safeguard their own
causing sovereign power in the state to repress
conduct hich they feel may
endanger their position."
Therefore, it is very difficult to frame such a definition of crime which
1Klare H.J.; "Changing Concepts of Crime and Its
2.
Treatment", p. 19.
Huda, The Principles of the Law of Crimes, p. 1.
3. Stephen, General View of Criminal Law of England,3. p.
. Russel, Crime, Voi. I (11th Ed.) p. 98
 GENERAL INTRODUCTION

may be true in all the countries at all times. "Crime is not absolute like
sin.
thal can be defined and have an existence beyond the limits of what men
may say and do. tt is essentially a relative definition of behaviour that is
constantly undergoing change.""
Definition of Crime.-Crime is defined as "an act punishable by law as
forbidden by statute or injurious to the public welfare."" It is a very wide
definition. Anything which is injurious to public welfare is a crime. In modern
complex society many things may be against the public welfare. Selling
contaminated food, molestation of young children or women in railway trains
and misleading advertisements may all be said to be injurious to public
welfare.
According to Bentham, "offences are whatever the legislature has
prohibitedfor good or for bad reasons. If the question relates to a theoretical
research for the discovery of the best possible laws according to the principles
of utility, we give the name of offence to every act which we think ought to
be prohibited by reasons of some evil which it produces or tends to
produce."
Blackstone in his "Commentaries on The Laws of England" has defined
crime as "an act committed or omitted in violation of a Public law either
forbidding or commanding it."
Thus according to Blackstone crime is an act in violation of public law.
But what is public law ? It has several
meanings. In Austinian sense 'public
law' is identical with 'constitutional law'. That
being so, the crime would then
mean an act done in violation of constitutional law. The definition would
thus cover only political offences leaving aside a vast area of other criminal
behaviour. Germans interpret 'public law' to include both constitutional law
and criminal law. In this case we will be
making use of the
criminal law' while defining 'crime', and that would amount to expression
circle.
in arguing
According others 'public law' means all
to
'positive law'. Positive law'
means any law made the State.
by Then crime would mean an act done in
violation of all positive law which is not always true for
many acts though
done in breach of law are not crimes. Thus it
may be said that, whatever
meaning we attach to the expression 'public law', the definition of Blackstone
does not prove to be satisfactory. In one sense it carries too
narrow a meaning
and in the other sense it becomes too wide.
Blackstone also defines crime as "violation of the
due to the whole public rights and duties
community, considered as a in community, its social
aggregate capacity Stephen, the editor of Blackstone has slightly modified
this definition and presents it in the following form "A crime is a
of
violation
a
right, considered in referençe to_the evil tendency of, such violation as
regards the
community at
large.
According to Blackstone,
crime is an act done in violation of
public
rights and duties. But according to Stephen, it is an act done in violation ot
public rights only. Stephen introduces an element of error in his definition
inasmuch as he
excludes the acts done in violation of
ambit of crime for there are public duties from the
many acts which are done in violation ot public
.Terence Morris, "The Social Toleration of Crime" included in
Crime and Its Treatment," ediled "Chan,ng Concepts or
2 The Oxford English Dictionary. by Klare H.J., p. 16.
3. 4 Black, Con1m.
4. 4
4
Black, Comm. 5.
 INDIAN PENAL CODE
A
in possession of housa
and termed as crimes. For example, being
duties of law which ar
or counterfeit
coins. Then too all breaches
breaking tools
tor where the Directors of a company
to the society are not crime,
injurious the mill is closed, workers are rendered
fail to manage its affairs properly,
essential for the society Is stopped.
unemployed, production of a commodity
the society? But can we prosecute
Will it not be an act which is injurious to
the Directors for crime ? The answer to this will probably be 'No'
any
Therefore, to define crime as those breaches of law which injure the

community cannot give the whole truth. Hence, "to speak of crimes as those
forms of legal wrong which are regarded by the law as being especially
unjurious to the public at large, may be an instructive general description of
them, but is not an accurate definition.
According to Stephen crime is an act forbidden by law and which is at
the same time revolting to the moral sentiments of the society. If we look
up to the penal codes of different countries we find that there are certainly
some acts which, though not immoral, are highly criminal and at the same
time there may be acts which are highly immoral but not criminal. In case
of treason offences, there does not seem anything immoral but almost in all
penal codes treason is considered as a heinous crime in the eyes of the
establishment. We take another illustration of a man who is a well-known
swimmer. He is standing by the side of a river
watching a child drowning
in the river. He does not make
any effort to save the child from drowning.
His act may be highly immoral but it is neither a criminal nor a civil
wrong.
Atustin posits that, "A wrong which is pursued at the discretion of the
injured party and his representatives is a civil injury; a wrong which is
pursued by the sovereign or his subordinates is a crime."
Thus according to Austin in case of a civil
wrong the State does not
interfere until the wrong has been committed and
proceedings
are initiated
by the injured party or by some other person acting on his behalf. In case
of criminal wrongs, proceedings can be instituted
by the sovereign or his
subordinates alone. There are many cases of crimes under the Indian Penal
Code where prosecution cannot be launched unless a
complaint is made by
the aggrieved party. It is only in case of serious crimes that the
State may
on its own initiative take action to
punish the wrong-doer by initiation of
criminal proceedings in its own name. For example, in case of
adultery under
section 497 or criminal elopement under section 498 of the Indian Penal
Code
a
complaint by the person aggrieved is necessary. No court shall take
cognizance of the offence under the sections unless a complaint is made byy
the husband of the victim woman.
Some people try to distinguish between the civil wrong and crime
according to the interference by the State in these acts. We already know that
almost in all the States a huge police force is maintained to maintain law
and order and to take steps to prevent commission of crimes. Generally
speaking in civil wrongs proceedings are instituted after the commission of
the wrong but in case of crimes action may be taken even prior to the
commission of crime that is when there is a reasonable apprehension of

Law, p. 8.
1. Kenny, Outlines of Criminal
of Criminal Law of England, p. 3.
2. Stephen, General View
XXVII.
lurispudence, Lecture
3 Austin.
 GENERAL INTRODUCTION

commission of a crimne.
To sav that a civil proceeding can never be instituted until the
has been committed and that in all criminal wrongs wrong
proceedings may always
be started without the co-operation of the injured
party is not free from
criticisnm, for civil proceedings are started to obtain injunction orders
against
some anticipated wrong which is about to be committed. So also there are
crimes where police do o t intertere to prevent the commission of the
wrong.
According to Kenny : "crimes are wrongs whose sanction is punitive and
is in no way remissible by any private person; but is remissible by crown
alone, if remissible at all."
Here the word 'sanction' means punishment and 'remissible" refers to
pardon by crown. That being so the definition of Kenny must mean that in
crimes punishment may be remitted only by the sovereign and
person. This is not always true. There are
no
many crimes
by privatee
categorised as
'compoundable offences' in the Indian Penal Code which may be
compounded without much intervention of the court, which means remission
of punishment by a private individual. So also in
English common law only
those crimes are pardonable by the Crown which are against the public laws
and statutes of the realm. Thus the definition of Kenny also breaks down.
To Kecton, "a crime would seem to be any undesirable act which the
State finds it most convenient to correct by the institution of proceedings for
the infliction of a penalty, instead of leaving the remedy to the discretion of
some injured person."
Miller defines crime "to be the commission or omission of an act which
the law forbids or commands under pain of a punishment to be imposed by
the State by a proceeding in its own name.2
According to Paton, "the normal marks of a crime are that the State has
power to control the procedure, to remit the penalty or to inflict the
punishment." Thus we find that it is very difficult to suggest a definition of
crime suitable to all countries for all the time. Therefore, it would be easier
to know a crime through its attributes. The three attributes of crime are
first, it is a harm brought about by some anti-social act of a human
being
which the sovereign desires to prevent; secondly, the preventive measures
taken by the sovereign are in the form of a threat of sanction or
and thirdly, the legal proceedings wherein the guilt or otherwise punishment
of the
accused is determined, are a
special kind of proceedings governed by special
rules of evidence.
Distinction Between Crime and Civil Wrong.-There are certaim acts
which are not approved by most of the people in a civilized society because
they have a tendency to reduce the sum total of human happiness to conserve
which is the ultimate aim of all laws." Such acts are known as wrongs, tor
example forgery, cheating, stealing and homicide etc. The evil tendencies ot
these acts differ in degree. Some of them are considered serious enough so
as to attract the notice of the laws, others are only disapproved by the societv
The latter are known as moral wrongs and are corrected by the laws ot the
community or the laws of religion. The reaction of the society in the case or

1. Kenny, Outlines of Criminal Law (11th ed.) 1922,

2. Miller, Criminal Law, p. 15.
pp 15-l
3, Huda, The Princinls of
 INDIAN PENAL CODE

and is expressed either by asking the

former wrongs grave enough
is
to make good the losses
caused to the person injured or h.
wrong-doer
infliction of punishment upon him. That means the law either calls upon tho
offender to pay damages to the person injured or awards punishment. Cases
where the wrong-doer is ordered to indemnity the person injured are known
as civil wrongs and where he is awarded punishment are known as crimes,

(0) Crimes are graver wrongs than torts for they constitute greater
interference with the happiness of others and affect not on'y the individual
wronged but the community as a whole. Secondly, the impulse to commit
crimes is often very strong and the advantage to be gained from the wrongful
act is so great and the risk of detection is so small that the human nature
is very likely to be tempted to commit such wrongs. For example,
pick-pocketing and gambling etc. Thirdly, they are generally intentional and
voluntary acts prompted by an evil mind and are injurious to the society by
the bad example they set.
(i) According to Blackstone, crimes are public wrongs and affect the
whole community; civil injuries are private wrongs and concern individuals.
But Huda observes that
public and private wrongs, are not exclusive of one
another, for what concerns individual must necessarily concern the
community of which the individual is an unit, and similarly everything that
affects concerns the community, must also concern and affect
or
the
individuals that form the
community.
(ii) The accused in crimes is treated with
defendant in civil wrongs. The greater indulgence than the
procedure and rules of evidence in criminal
proceedings are modified in order to reduce to the minimum the risk of an
innocent person being
neither bound to
punished. In criminal proceedings the accused is
cannot be
prove anything nor to make any statement in the court. He
compelled to answer
any question.
(iv) The burden lies upon the
prosecution establish the guilt of the
to
accused to the entire satisfaction of the court and if there is
doubt regarding the guilt of the any reasonable
accused, the benefit of doubt must
be given to the accused. But the defendant
in a civil
always
to any such benefit of
doubt. proceeding is not entitled
(v) Crimes and civil wrongs are
generally dealt within different
tribunals. The former are tried in the criminal
courts and the latter in the
civil courts.
(vi) In civil
cases the
punishment if used in its widest sense is of the
mildest nature and the law is satisfied with the
in full for the
restitution or compensation
object aimed at is to
indemnify the individual wronged and
to put him as far as
practicable
he was wronged. Therefore, he can
in the same
position in which he was, before
compromise the case. In criminal cases,
generally, the State as protector of the rights of subjects pursues the offender
in its own name. There
are, however, exceptions to this rule. In criminal
proceedings compounding is permitted only in exceptional cases.
(vii) The same act is either a crime or a civil wrong according as it is
done with or without an evil intent. An
act to be criminal nust be done with
criminal intent. No such malice or evil is
necessary in case of a civil wrong
Inasmuch as the difference between crime and civil wrong does not
1. Huda, The Principles of the Law of Crimes, p. 2.
 GENERAL INTRODUCTION
7

cansist of any intrinsicC difference in the nature of the wrongful acts

themselves, but only in the legal proceedings which are taken upon them,
the same injury may be both civil and criminal : for the law may allow both
forms of procedure of it alike.'
Modern Approach to Crime.-The basis of criminal law is that there
are certain standards of behaviour of moral principles which society requires
to be observed; and the breach of them is an offence not merely against the
person who is injured but against society as a whole. Theoretically, a crime
is a threat to every member of society, even though it may be, in reality an
offence against only one specific person. The function of criminal law as
spotlighted by the Wolfendon Committee Report (1958) is to preserve public
order and decency, to protect citizens from what is offensive or injurious and
to provide sufficient safeguards against exploitation and corruption of others,
particularly those who are young, weak in body or mind, inexperienced or
in a state of physical, official or economic dependence. It is not the function
of the law to intervene in the private lives of citizens or to seek to enforce
any particular pattern of behaviour further than is necessary to carry out the
above purposes. Thus what a man does in private is not the law's concern
unless it can be shown to be so contrary to the public good that the iaw
ought to intervene in its function as the guardian of that public good. Further,
no useful purpose may be served by legislating against an activity which
cannot be satisfactorily controlled. The error of jurisprudence in the Wolfendon
Report appears to be caused by the search for some single principle to explain
the division between crime and sin. The report seems to have been based on
the feeling that criminal law exists for the protection of individuals. "But the
true principle is that the law exists for the protection of society. It does not
discharge its function by protecting the individual from injury, annoyance,
corruption, and exploitation; the law must protect also the institution and the
community of ideas, political and moral, without which people can1not live
together. `ociety cannot ignore the morality of theindividual any more than
it can his loyalty; it flourishes on both and without either it dies."

II
Elements of Crime
The chief elements necessary to constitute a crime are
() A human being under a legal obligation to act in a particular
way and a fit subject for the infliction of appropriate punishment;
(ii) An evil intent on the part of such a human being:
(ii) An act committed or omitted in furtherance of such an intent;
(iv) An injury to another human being or to society at large by
such act.
Human being.-The act must have been done by a human being before
it can constitute a crime punishable at law. It is interesting to observe that
there are enough examples in ancient legal institutions of punishment deing8
inflicted on animals or inanimate objects for injury caused by them. This t

1. Kenny, Outlines of Criminal Law (11th ed., 1922), p. 18.

2. Patrick Devlin, The Enforcement of Morals (1965), pp. 6-7.
3. Klare, HJ., Changing Concept of Crime and Its Treatment, p. 20
4. Patrick Devlin, The Enforcenment of Morals, (1965), p. 22
 INDIAN PENAL CODE

wonder that the administration

of criminal justice in those days
days was
is of no
it
idea of retribution. Therefore, animal was
an
mainly dominated by the
punished or the inanimate object was thrown out of the boundaries of the
State the feeling of vengeance was satisfied. This is probably in conformi,
with the human nature. When a child falls on the ground and is hurt.
we
kick the ground to console the child. This feeling cannot be said to be solelu
confined to children. In those days the right to punish the wrong-doer lay
in the hands of the individual wronged. Later on the right ot punishment
was taken away from the individual and was transferred into the hands of
the society. The society undertook to do everything for the individual what
he had so far been doing for himself. Even during this period the trial and
punishment of animals was a remarkable feature of the administration of
criminal justice. Baring Gould's "Curiosities of Olden Times' clearly bear out
these facts. For example: "The first time an ass if found in a cultivated field
not belonging to its master, one of its ear is chopped off. If it commits the
same offence again, it loses the second ear.'
Even appeal on behalf of the delinquent beast was not very uncommon
in the middle ages in
Europe. We also find traces of the owner of the animal
being punished for the wrongful acts of his animal. For example : "if an ox
gored a man
resulting
in his death, the ox was stoned and the owner
to death. In order to extract confession, the animal was tortured and the put
cries
of from the tortured animal were taken to be confession of
pain
were sometimes
guilt. Animals
accepted as witnesses in the Court. In Athens an ox or stone
that killed anyone by accident was thrown
Even in England a cart-wheel, a tree or a beast beyond
the country's borders.
that killed a man was forfeited
by the State for the benefit of the poor.
It is a matter of
pride that the ancient Hindu criminal jurisprudence did
not provide for the trial and
Hindu jurists seem to be
punishment of animals and inanimate objects.
a constituent of crime
fully aware of the requirement of an evil intent as
which is a modern
development of western criminal
jurisprudence. That means, we presumed that the offender must be a human
being who must have developed maturity of
understanding to know the
nature of the act of which he is held liable.
With the development of the notion of mens rea
as an essential element
of crime, the trial and
punishment animals and inanimate objects had to
be given up. Even now vicious animals
of

preventive measure. Even today we hold thedestroyed

are not as punitive but as
owner of the animal liable in
some cases for
any damage caused by his animals but the
is not for what the animal has done but punishment now
for the omission on the
owner to take
proper care of his animals and thereby to
part of the
to others. Therefore, prevent any mischief
of being
only a human
being under a legal obligation and
capable
punished can be the proper subject of criminal law. It means a
human being must have a
body. Corporations and other artificial persons
known to modern
jurisprudence are not capable of being punished, for
appropriate punishment means both pecuniary and bodily punishment and
the latter cannot be inflicted
upon artificial persons.
Mens rea.- 'Actus non facit reum nisi mens sit rea' is a well-known
of criminal law. It means 'the act itself does maxim
not make a man guilty unless
his intentions were so.' From this nmaxim
follows another 'actus
proposition:
 GENERAL INTRODUCTION

me inrito factus non st niens actus which means 'an act done by me against
my will is not my act at all. This means an act in order to be punishable
at law must be a willed act or a voluntary act and at the same time must
have been done with a criminal intent. The intent and the act both must
concur to constitute the crime.' Where the criminal intent necessary to
constitute a crime is wanting there is no criminal responsibility unless the
offence is expressly or by necessary implication punishable without reference
to the wrong-doer."
English law started with a rule of strict liability." A man must almost
in every case be deemed to have intended to do what he had done. It was
on this assumption that the trials were held in earlier times in England. The
reason is that in those days the distinction between crime and tort was not
water-tight and the punishment at that time mainly consisted of a money
payment by way of compensation to the wronged person. Therefore, the
mental attitude of the wrong-doer was almost an irrelevant consideration."
But later on the substitution of bodily punishment in suitable cases gave rise
to the recognition of the notion of criminal intent behind the act.
Now the requirement of mens rea as a necessary element of a crime is
fully established. We shall take a fuller discussion of the "mens rea' in the
next part.
Actus Reus.-A human being and an evil intent are not enough to
constitute a crime for you cannot know the intentions of a man,. The thought
of a man is not triable. The criminal intent in order to be punishable must
become manifest in some voluntary act or omission. According to Kenny
'actus reus is such result of human conduct as the law seeks to prevent. The
act done or omitted must be an act forbidden or commanded by some law.
Russel calls actus reus as the 'physical result of human conduct' When
criminal policy regards such act as sufficiently harmful, the commission of
the act is prohibited on pain of punishment. The law's refusal to punish
other than actions involves four different things, namely (i) the law
anything
is only concerned with positive conduct as opposed to mere inactivity, (ii)
the law only prohibits acts as opposed to thoughts or intentions, (ii) the law
only penalizes acts as contrasted with bodily states and forms of involuntary
is punished only for his own conduct and not for that
behaviour, (iv) a man

of others.
An act includes illegal omissions also. A man is held liable if some duty
is cast upon him by law and he omits to discharge that duty. That means
an omission must be in breach of a legal duty. Section 43 of the Indian Penal
Code lays down that the word 'illegal is applicable to everything which is
an offence or which is prohibited by law, or which furnishes ground for a
civil action; and a person is said to be "legally bound to do" whatever it is
illegal in him to omit. 'A' happening to walk along a deserted road at night
he
during winter saw a just born infant abandoned on a side, realised that
could save it without appreciable trouble, expense, or loss of his time and
also that it must die if left there unprotected, but did nothing and went away.
1. Fowlerv. Padget, (1798) 7 T.R. 509.
2. For similar observations see Harding v. Price, (1948) 1 K.B. 695
3. Pollock and Maitland, History of English Law, Vol. I1, p. 477.
4. Russel, Crime (11th Ed.) Vol. 1, p. 20.
5. Fitzerald, P.J, Criminal Law and Punishment, p. 94.
10
NDIAN PENAL COOE

Later another person B also

and acted just like A and went happened to pass by, saw the infant, realisod
away. Next morning the infant died
exposure. Here neither A nor B would be liable because the death of tho
of
child is not the result of
any act or illegal omission on their ne
where A and B, the husband and
wife had a bitter
part. Similarly
commit suicide and ran to a well and
A did
quarrel; B threatened
to
jumped into the well and died, A nothing to prevent her and
and young children to die
would not be liable. If 'A' allows his she
of starvation he commits a wife
a
legal duty maintain his wife and children. Now
to crime because he owes
suppose "M' faces some
difficulty while swimming in a river, several persons, some of whom are
good swimmers stand on the river-side even
persons do not make any effort to save him. watching "M drowning. Al| those
them cannot be said to be the Here inactivity of any one of
cause of M's death. The
different when A pushes B into a problem will be
river and B gets drowned. In this
act is cause of B's case A's
death. In the former case there is no
blame of M's death can be person on whom the
be blamed. Now if we put; in the latter case A is the
obvious person to
compare the two cases i.e., M's death
young children due to starvation, we find that theby drowning
and death of
case of
inactivity and the latter is a case of former is a
who refuses to come to illegal
the rescue of a swimmer in
omission. A
by-stander
moral condemnation, but difficulties may incur
commits no criminal offence. It is
respect of omissions, as opposed to mere true that in
company. Let us hope that with the inactivity, law and morals part
conception of one's duty to others may growth
of humanitarian ideas the
of human
inactivity as no civilised
gradually expand so that such cases
in the list of society will ever approve are also included
illegal omissions.
Injury to human beings.-The word "injury" as defined
of the Indian Penal Code denotes 'any harm whatever by section 44
person, in body, mind, reputation or illegally caused to any
property.' Injury must be
to another human
being or to a body of individuals or to illegally caused
Thus we have seen that there are four society at large.
elements that constitute a crime.
However, there are a few exceptions to this rule.
constituted even though the act is not Sometimes a crime is
accompanied with
liability, for example, the offence guilty
are the cases of strict mind. These
of "bigamy' under
section 494, I.P. Code. A crime is also constituted
has not consummated. That means cases where
even
though the actus reus
any person. These are the cases of inchoate
no
injury has been caused to
crimes, for example, attempt,
abetment and conspiracy. Furthermore, there
may be a crime where there is
neither actus reus nor injury to a human
offences which are taken notice of by the State
being. These are cases of serious
in the larger interest of maintaining
prior to the actual commission
peace in the society. These acts are
branded as crimes as a preventive measure, for
example, making preparation
to commit dacoity under section 399 and assembling for purpose of
committing dacoity under section 402 of the Indian Penal Co

III
Mens Rea i.e. Mental Element in Crime

Meaning of Mens Rea

characteristics of our legal system is that the
One of the main
 GENERAL INTRODUCTION

imdividual's liability to punishment tor crimes depends, among other things,

on certain mental conditions. The absence of these conditions, where they are
required, negatives the liability. These conditions can best be expressed in
negative form as excusin8 conditions. The liability to conviction of an
individual depends not only on his having done some outward acts which
the law forbids, but on hIs having done them in a certain frame of mind or

with a certainwill. These are known as 'mental elements' in criminal

responsibility. That is, while acting in a particular way one intended certain
consequences or might foresaw the likeliness of those consequences. Therefore
an act in order to be a crime must be committed with a guilty mind, Actus
non facit reum nisi mens sit rea (act alone does not make a man guilty unless
his intentions were so) is a well known principle of natural justice. No person
could be punished in a proceeding of criminal nature unless it can be shown

that he had a guilty mind.

In the earliest times the trials were held on fundamental presumptioon
to do
that a man must almost in every case be deemed to have intended
what he had done. The older English Criminal Law began with the principle
of strict liability for in those days the distinction between crime and
tort was
not clearly drawn and punishment in those days mainly consisted of money
the mental attitude of
compensation to the person wronged. Therefore,
in so far as the trial and punishment
person was an irrelevant consideration
were concerned.
of
But later on bodily punishment came as a substitute of the payment
rea or the mental attitude
damages. It was then that the importance of mens realised. With the
of a person, at the time of commission of crime was
of mens rea as an essential element of a crime
passage of time the requirement
has firmly taken its roots.
a crime. The
Now it is the combination of act and intent which makes
An act by itself
intent and the act must both concur to constitute a crime."
intent makes it
is not wrong. But act, if prohibited, done with a particular
criminal. There can be no crime large or small without any
evil intent. The
a 'willed' or 'voluntary
responsibility in crimes must depend on the doing of
conscious and voluntary
act and a particular intent behind that act." Most When one acts
acts are directed towards a particular result or consequence.
to produce a particular consequence he is said to do
that act with that
but
intention. If the consequence is not looked for the act may be voluntary
act'. This
not intentional. For any criminal liability there must be a 'voluntary
non est mens actus
proposition is derived from the nmaxim actus me i1vito factus act'. This maxim
which means 'an act done by me against my will is not my
can be held liable for
an act
supports the doctrine of mens rea for no person
done under fear or compulsion. For example, A holds B
and compels him at
willed or
puint to open the lock of C's house. Here B's act is not a
gun of the doctrine
intentional act. The difficult c a s e s regarding the application

Hart, H.L.A.; Punishment and Responsibility, 28

2. Hart, HLA, The Morality of the Criminal Law, 6.

Crisholm v. Doulton, 22 QBD. 739

45.Fowler Padget, (1789) 7 T.R 514

v.
Bishop's Criminal Law (7th ed) 287
366.
6. Salmond, Jurisprudence (10th ed.)
7. Huda S, Princaiples of Law of Crimes in British India, 172
 12 INDIAN PENAL CODE

are cases of voluntary acts where the evil intent is negatived by reasons
of
a mistake regarding the actual state of facts or other grounds of a like natur
such as contained in Chapter IV of the Indian Penal Code. You are walkinc
on a
road. A man suddenly rushes to you and hits with a stick. You
injured. Later on you find that the assailant was a man of unsound mind.
ar
Your feeling of retribution will be lesser as you know that he was not
in
proper sense and had no mental capacity to feel that by hitting upon your
head he would be injuring you. On the other hand,
your feelings will be
different against the man who hits you
and the consequences too
deliberately. The act may be the same
may be the same but the only difference lies in
the intention. Therefore, what is
important is an intent to injure.
The basic requirement of the
principle of mens rea is that accused must
have been aware of all those elements in
his act which make it the crime
with which he is
charged.
or have been reckless
That means, he must have intended the actus reus
whether he caused an actus reus or not. It is not
necessary that he must know that the act which he is going to commit is
crime.
As a general rule a man is
of his conduct as he criminally liable only for such consequences
actually foresaw. Liability for such unforeseen
consequences which he ought to have foreseen is termed liability for
negligence. It is only in exceptional cases that criminal liability is
for negligence; usually mens rea, actual imposed
constitute the actus reus must be foresight of the consequences which
proved.
Mens rea refers to the mental element
for the particular crime.
Mental element may be either intention tonecessary
do the act or bring about the
consequence or in some crimes recklessness as to that
blameworthy condition of mind which involves consequence.
a
it implies
character of the act and foresight of the
a
knowledge of the
mean a single
consequences. Mens rea does not
precise state of mind but it takes on different colours in
different surroundings." The truth is that there is no
mind common to all crimes." Nonetheless it is as single precise state of
crime as
vitally necessary for true
understanding is necessary for goodness.
VOLITION, MOTIVE AND INTENTION
Volition.- Every conscious act which we do is preceded by a certain
state of mind. No physical act is possible without bodily motions. And every
bodily motion which constitutes an act is preceded by a desire for those
motions. According to Austin, "bodily movements obey wills. They move
when we will they should. The wish is volition and the consequent movements
are acts. Besides the volition and act, it is supposed there is a will which is
the author of both. The desire is called an act of the will, when I will a
movement I wish it, and when I conceive the wish I expect that the
movement wished will follow. The wishes followed by the act wished, are
ot
only wishes which attain their ends without external means. Our desires I
actswhich immediately follow our desires of them, are volitions. The act

Mind in the Criminal Law, (1960) 76 LQR. 1.

1. J.C. Smith. The Guilty
Criminal Law, p. 29
2. Williams, G.,
3 S a v r e , Mens rea, 45
Harv. L. Rev. (1932) 402.
 GENERAL INTRODUCTION
13

will, the consequence I intend. This imaginary will is deternmined to action

hy motives." The desire which implies the motion is known as volition. Where
ehis desire is not produced by fear or compulsion the act is said to be a
voluntary one. "The longing tor the object desired which sets the volition in
motion is motive. The expectations that desired motions will lead to certain
consequences is the intention." We will the act and intend the consequences.
Will.-According to Stephen, "will is often used as being synonymous
with the act of volition, which precedes or accompanies voluntary action." By
either the act of volition, which is a stage in
particular
will he means
of the reasons that some particular
permanent judgment
voluntary action, or a
which
course of conduct
is desirable, coupled with an intention to pursue it,
volitions.
a greater or lesser number of particular
issues from time to time in
INTENTION AND MOTIVE
of the will
directing an
According Stephen, "Intention is an operation
to
the will, the
overt act; motive is the feeling
which prompts the operation of
ulterior object of the person willing, e.g.,
if a person kills another, the
the motive is object which the
intention directs the act which causes death, ,2
the satisfaction of some desire, such as revenge etc.
person had in view, e.g., act is done. It is the
is the purpose or design with which
an
Intention
with the desire of it. Such foreknowledge
foreknowledge of the act, coupled inasmuch as they fulfil
themselves
and being desire the c a u s e of the act,
decides, resolves
the operation of will. In intention, the actor chooses,
through he consciously employs m e a n s
to that
to bring a prescribed harm into being, in fact, the idea
intentional if, and in so far as, it exists
end. An act is
because of the desire by which it is accompanied.
realising itself in the fact of the will directing an
overt act;
Intention is also said to be "an operation the ulterior object
the operation of the will,
motive is feeling which prompts which by
to Bentham, motive is anything
of the person willing."" According to s e r v e as a m e a n s
of
of a sensitive being is supposed
influencing the will
act upon any occasion.,
determining him to immediate object, while
motive refers to the
Intention refers to the
root of the intention.
In other words intention
ulterior object which is at the not
end. But innocence of the motive may
is the
is the m e a n s and motive motive does not punish
and good
will excuse. Bad
excuse where intention to B to s a v e her
from
A r e m o v e s a c o w belonging
motive does not excuse. not be excused
motive but he will
Here A had an excellent to him.
being slaughtered. B of his c o w which legally belongs
for he unlawfully deprives who w a s sentenced by
executioner hangs his
o w n enemy
liable for he
Similarly, where an his spite, shall not be held
court of law and thereby
gratifies ee that criminal

the discharge legal

of a duty. Thus, we

has done the fact in

intentions.
account the motives of a m a n but his
into two distinct questions
law does not take act may raise
"every wrongful how did he do
According to Salnmond, of the doer. The first of
these is
intentionally.
intent
with respect to the The second is if he
did it
o r accidentally.
the act? intentionally
British India, p.
172
of law of Crimes in
Huda. S, Principles Law. Vol. II.
1. of the English Criminal 112
2Stephen, History CriminalLaw (2nd ed)
General Principles of
Hall, Jerome; (11th ed.) 410
Jurisprudence
Salmond,
of English
Criminal Law, Vol II
5 Stephen, History
 INDIAN PENAL CODE

did he do it ? The first is an enquiry into his immediate intent; the

why
second is concerned with his ulterior intent or motive."
According to Austin, "the intention is the aim of the act, of which the
motive is the spring." The ulterior intent is the motive of the act The
immediate intent is coincident with the wrongful act itself: the ulterior intent
or motive is that part of the total intent which lies outside the boundaries of
the wrongful act. In reality motive is a specie of intent." According to
Williams, "in criminal law, it is generally convenient to use the terms
'intention' witii reference to intention as to the constituents of the actus reus,
and the term 'motive' with reference to the intention with which the actus
reus was done."
 I-STRICT LIABILITTY
1he question whether a crime can be said to have
been
without the necessary nens rea has led to considerable controversy, commit
nrinciples accepted by courts in this
Tho
The bro
country
as well as
England aro in
Where an offence is created by a statute, however
comprehensive and
unqualified the language of the statute, it is usually understood and
as silent
requiring that the element of mens rea should be
of crime unless imported into the definition
a
contrary intention is
expressed or
implied."
Ordinarily mind at fault is
a
necessary to constitute a crime. But there
are some crimes which do not
the accused, Crimes
require any kind of legal fault on the part of
requiring fault on the part of some one but the accused
are the crimes of vicarious
of anyone are known as crimes of
liability and those not requiring fault on the part
strict liability. These are the crimes
which the necessity for mens rea or in
Strict liability means negligence wholly
is or
partly excluded
liability to punitive sanctions despite the lack of mens
rea. There does not seem to be a crime of strict
There does not also seem liability at common law.
any statute that creates it in so many words. The
question arises on the construction of a statute that
penalises conduct without
express reference or with only a partial or limited reference to the
state of the mental
wrong-doer. The general principle of criminal jurisprudence is
that although the statute is silent on the
to be implied." point a requirement of mens rea is
The legislature can, no doubt,
event and not the
dispensewith mens
rea, punishing the
intent,' the principle formerly
that "it lies on those
was
who assert that the legislature has so enacted to make it out convincingly by
the language of the statute."" It is
contrary to the whole established law of
England (unless the legislation on the subject has clearly enacted it) to say
without an attempt to do that which the law has forbidden.""
At common law there are three
recognised exceptions to the general
principle of mens rea : (i) public nuisance, (ii) criminal libel, and (iii) contempt
of court.
Public nuisance.- An employer can be held guilty of the offence even
when the offending act is done by an employee without his knowledge.
Public nuisance, as defined by Stephen, is "an act not warranted by law or
an omission to discharge a legal duty, which act or omission obstructs or
causes inconvenience or damage to the public in the exercise of rights

1. lbid. at p. 210.
2. Ibid. at p. 212.
3. State of Gujarat v. D. Parade, 1971 Cri. L.J. 760 at p. 762.
4 Williams, G.; Criminal Law, (General Part, 1961 Ed.) p. 215.
5. Hall Jerome, General Principles of Criminal Law (2nd Ed.) p. 325.
6. Williams, G., Criminal Law, p. 238.
7. Ibid. at p. 239.
8. Chisholm v. Doulton, (1889) 22 Q.B. at 741.
9. Attorney General v. Bradlaugh, (1885) 14 Q.B.D. at 689 (CA.)
 GENERAL INTRODUCTION
43
common to all Her Majesty's subject." Section 268 of the
reates the offence of public nuisance which is illustrated Indian Penal Code
from sections 269
to cection 294-A. The principle of common
injury, danger
through the acts spreading infection, adulteration
or
annoyance runs
of food or drink
drugs, or
selling obscene literature
and pictures,
keeping a
lottery office, like the golden
thread. But the Indian law is controlled by
age-worn values in these items
of crime. For example, the rule laid down in the Hicklin test
almost a century
ago still rules the roots, even after the amendment of the
relevant sections
relating to of obscene book etc. It was held in
sale Ramjit D.Udeshi v. State
of Maharashtra, that the ordinary guilty intention will be
offence can be said to be complete. The circumstancesrequired before the
of the case will
determine the criminal intent. Positive evidence need not be
given. But this
ruling itself expresses doubt about the borderline cases. Even the amendment
made to section 292 after the
judgment was pronounced could not bury the
Hicklin ghost. Of course, the distinction
treatises and journals from those of recognized between the scientific
is appreciable
ordinary books for common consumption
although fine one.' The exclusion of works of art from the
a

legal scrutiny is, debatable.

Private libel.-The absolute rule has been
of the Libel Act, 1843, which undermined by a
provision
who would otherwise be
provides defence to a
a
newspaper proprietor
strictly liable, on his proving that the alleged
defamatory statement has been printed without malice and
part and that he has negligence on his
made liable if the
published an
apology. In India, the press magnate is
defamatory publication was done with the necessary intent,
knowledge or reasonable belief, although the journal or the
be edited by another newspaper may
person appointed by him. Running the
carrying out the policy of the publications is still retained paper and
illegality on the part of editor may absolve him. The Indian by him. Only
defamation is Law on
contained in section 499 and 500 of the Indian
Penal Code. A
charge under the relevant
provisions of Indian Law does not
case of strict seem to be a
liability.
Contempt of Court.-Strict liability in the offence of
is of recent contempt of court
origin. In R. v. Evening Standard,' the defendant
received an inaccurate newspaper
report of evidence
given at a criminal trial from a
reporter and published it before the jury had considered its verdict.
had no The editor
knowledge of the
inaccuracy, but the
newspaper was convicted of
contempt on the ground that the
jury might have been influenced by the
published inaccurate facts and that the officials of the newspaper shoule have
known that the
proceedings
is contained in the
were continuing. The Indian
law on the subject
Court is
Contempt of Courts Act, 1971 Under the Act
every High
competent to punish any person guilty of its contempt or
contempt of Courts subordinate to it.
guilty of
Contempt of Court springs from the
1.
Stephen, Digest of Criminal Law (8th ed.) p. 184.
2. A.IR. 1965 SC.
881.
3. Sukanta
Haldar v. State, A.IR. 1962 Cal. 214
(215).
4Ramamurthy v. State
of Mysore,
Stewart S.W., A Modern View of
A.I.R. 1954 Mys. 164 (165).
the Criminal Law, 61.
6.
Bhagat Singh v. Lachhmau Singh, A.L.R. 1968 Cal. 296. p.
7.
(1954) 1 Q.B. 578.
. The
Contempt of Courts Act, 1952 (See Sec. 3).
 INDIAN PENAL CODE
44

orse
to the cause of justice. Scandalizing
effects the Court
those the
parties before
the Court or prejudicing the mankind against
varieties of the contempt contemplated in the leiel the
cause are different ion
individual judges or defaming the entire fa
Aspersions cast against
iudiciary may lead to strict responsibility. Attributing improper motivec
limits of fair and bona fide criticism
iudges of the Court exceeds the
amounts to gross contempt." Accusation about the competency of the lud
too lead to minimization of public confidence in judiciary.
Abduction.- In England the legislature was not thought competent
override the common law rule of requirement of mens rea as a necessary
element of every time even though it is not expressly mentioned in the
The
Statute. in the courts' attitude towards the rule of strict liability
change
well-known case of R. v. Prince." In this case which
appeared in 1875 in the
we have already
discussed in detail the accused was convicted of abducting
a girl although he was
blameless in respect of mens rea. In an earlier case R.

v. Hibbert," the accused

had met the girl in the street, took her to another
where he had found her. The girl was in the
place, scduced her and left her held that in the absence of a finding by the
custody of her father but it was abstained from
of this fact or had wilfully
jury that the accused was aware the he must be acquitted. In Hibbert's
inquiring about the guardianship of girl, or the
case the accused was acquitted
because he did not have the actual
In
was under any body's guardianship.
constructive knowledge that the girl
that one
convicted because it was emphasised
Prince's case the accused w a s In
in so far as her age is concerned.
who abducts a girl does s o at his peril 363 of the Indian
Prince are triable under section
India c a s e s similar to that of lawful guardianship.
out of the keeping of
Penal Code for kidnapping a girl under the
did not know that the girl
was
The defence that the accused
the girl looked quite older than
or that from her appearance
statutory age to have attained the age
of consent
the accused took her
that age and that
could not be accepted." law has been created by
offence of bigamy in English
Bigamy.-The Persons Act, 1861. R. v.
Tolson and R. v.
of the Offences Against
section 57 cases on the subject, which have
the two important English
Wheat, are
detail. Another case is R. v. Dolman.0 In
been discussed earlier in
already reasonable cause to believe
and believed honestly
Mr. Dolman had
this case
a m a n named Gray
when she married him.
Dolman w a s married to
that Mrs.

1. 1969 Ker. L.J. 453 (D.B.).

A.LR. 1953 S.C. 75 (76).
1491.
3. A.LR. 1967 S.C.
C.C.R. 154.
4. (1875) L.R. 2
164.
5. (1869) L.R. 1 C.C.R.
9 Pat. 647.
6. Krishna Maharana, (1929) person during
"Whosoever being married, shall marry any other that
7. Section 57 provides: of felony...provided
the former husband o r wife...shall be guilty
the life of marrying a
seond tim
contained shall extend to any person the
nothing in this section shall have been continually absent from such person tor
husband or wife such person
whose been known by
s e v e n years then
Jast past, and shall not have marriage
space of who at the time of such second
to be living at that
time o r to any person
the bond of the first marriage"
shall have divorced from
168.
8. (1889) 23 QB.D.
9 (1921) 2 KB. 119
813.
10. (1949) 1 All E.R.
 GENERAL INTRODUCTION
A5
Mr. Dolman subsequently married to one Jenson because he believed that he
had never been legally married to Mrs. Dolman. He was acquitted of the
charge of bigamously marrying Jenson while in fact he was proved by the
prosecution to be married to Mr. Dolman. On the facts as Mr. Dolman
believed them to be, he did not like or intend to marry during the life of
his former wife because unlike Wheat he believed that he had never been
legally married to the woman proved by the prosecution to be his wife. If
his belief had been true, he would not have had to rely on any proviso to
section 57 of the Offences Against Persons Act.
In India bigamy is an offence under section 494 of the Indian Penal
Code. Section 494 is very much similar to the provisions of English law.
Although the second exception to section 494 presumes innocence from the
fact of continuous absence of other spouse for seven years,it does not
expressly admit of the other exception of English law of 'bona fide belief of the
spouse's, death at the time of the second marriage. Because of this omission
there is difference of view between Indian and English decisions. English
decisions support the view that even if seven years had not elapsed betore
the second marriage, a bona fide belief in good faith at the time of the second
marriage that the first spouse was dead is a good defence. The Indian Court
n a Bombay case under similar circumstances had taken a view different
than that in Tolson's case. Section 494 of the Indian Penal Code makes a
bigamous marriage, irrespective of an intention, an offence so that the plea
of innocence or want of mens rea is no defence to a charge of bigamy under
the Code. However, if the spouse was continually absent for a period of seven
years and had not been heard of by such person as living, the other spouse
is free to marry provided that the person marrying informs of these facts to
the intended partner before marrying. But where seven years have not elapsed
before second marriage, the person marrying may rely on the general
exception provided he can show that he had made inquiries and had bona
fide reasons to believe that the other party was dead.
Statutory offences.-n modem times the principle of strict responsibility
Is more noticeable in 'public welfare offences'. Public Welfare Offences are

statutory offences of minor character involving minor punishment. They are

offences connected with sale of adulterated food or drugs, or offences of
Possession or offences connected with road traffic or offences against customs
rules and
foreign regulations.
nere is presumption that the doctrine of mens rea applies to all crimes
otding statutory crimes. But this 'presumption is liable to be displaced
either by the words of statute creating the offence or by the subject-matteer
with which it
deals and both must be
We have seen that Cundy v. Le Cocq considered.
and Sherras v. De Rutzen,° are the
O Contrary decisions on this point. The general rule as pointed out by Lord
Oddard, C.J. is actus non facit reum nisi mens sit rea and unless a statute
clearly or
by necessary implication rules out mens
Or a crime, the court should not find a man guilty ofreaanasoffence
a constiruet
against
R.v. Tolson, (1889) 23 Q.B.D. 168.
Shambhu, 1 Bom. 347.
Sherras v. De Rutzen, (1895) 1 Q.B. 918.
(1884) 13 Q.B.D. 207
5(1895) 1 QB. 918.
 46 INDIAN PENAL CODE

the criminal law unless he has guilty mind. This view has been approved
by the Supreme Court in Ravula Hariprasad Rao v. The State. Thus we haye
seen that a large number of modern statutes have in prescribin8 punishment
excluded the requirement of mens rea. The following are some ot the reasons
suggested for the recognition of the principle of strict responsibility-
(1) Almost all such offences are of minor nature and involve only
pecuniary penalty and exclusion of enquiry into mens rea is not unjust
where the only outcome of the prosecution is a small pecuniary penalty
(2) It would be difficult to procure adequate proof ot mens rea in
such offences. To permit such a defence would be to allow every violator
to avoid liability nmerely by pleading lack of knowledge.
(3) Public welfare offences serve a sOcial purpose by making that
act
as punishable which though not intrinsically wrongful ought
to
punished in the public interest. That is these offences are merely mala
be
prohibita and not mala in se.
(4) Having regard to the number of transgressions that have to be
brought before the courts and to the fact that in most cases the
defendant is probably culpable, while the proof of this mental culpability
is difficult, it would be a waste of time for the court to have to enquire
into the question.
(5) Another argument in support of strict liability is the claim that
it serves as a proof to stimulate increased care and efficiency even by
those who are already careful and efficient.
As to the first argument it is not easy to see why the slightness of the
should justify of culpability, and
abandonment of the requirement
penalty an
defendant
in any event the penalty is not the punishment that the
receives-he also has to suffer the humiliation of trial and odium of
and
conviction, which are present in some degree even with these offences,
which for respectable defendants are sharper penalties than anything extracted
in
from their pocket.° Further in modern times fine is not the only penalty
such offences. In addition to fine, imprisonment is also
prescribed as

punishment in many cases.

Against strict responsibility it is said that the practice of imposing small
who
fines without enquiry into mens ren does not deter unscrupulous persons
are the real culprits. An attitude of greater discrimination between culpable
minor
offenders and others, imposing severe penalty on the former instead of
ones on all and sundry, would result in better observance of the law.
Another objection against the principle of strict liability is that it is an
ot
abuse of the moral sentiments of the community. To make a practice
weaken
branding people as criminals who are without moral fault tends to
When
respect for the law and the social condemnation of those who break it."
1. Harding v. Price, (1948) 1 K.B. 695.
2. A.IR. 1951 S.C. 204.
3. Hobbs v. Winchester Corpn, (1910) 2 K.B. 481 (C.A.).
4. Note, 42 Mich. L. Rev. 1103, 1106 (1944).
5. Williams, G, Criminal Law (1953) 268.
6. Ibid
Ibid. p. 269.
7
8. Hall, Jerome, General P'rinciples of Criminal Law (1st ed) pp. 301-2.
9 Williams, G; Criminal Law p. 269
 GENERAL INTRODUCTION 47

it becomes respectable to be convicted the vitality of the criminal law has

been sapped.' Professor Hall in his Essays in Criminal Science posits that
"It is becoming increasingly recognised that strict liability has no
place whatever in Criminal law; instead it smacks of barbarism to punish
the people despite the fact that there is no reason for blaming them at
all. I have never any evidence which supports of such liability in penal
law, specially that it raises standards and protects the public."
According to Hall, the sole raison d'etre of strict liability no longer exists.
Therefore two alternatives have been suggested-
welfare offences be separated from the traditional
(1) that public
crimes and enforced through administrative agencies, and
that be accepted sufficient degree of mens rea in
(2) negligence as

statutory offences and the onus be transferred to accused to prove that

he acted with due care.
One of the suggestions made, therefore, is that the public welfare and
similar regulations be removed penal law. "That
from the "That auspicious
the allocation
beginning would render m o r e persuasive, as an initial reform,
of these rules to a separate code of civil offences requiring negligence and
tried by administrative tribunals or civil courts. If at the same time, inspection,
work ot
education and counsel were provided by regulatory boards, and the
criminal courts restricted to violations involving mens rea, we mighnt
the were
be well on the way to the solution of this problem."