Introduction

Any act that is forbidden by the law to perform is committed by any person or any act
that is ordered by the law to perform is refused to perform, then such an act or refusal is
called a crime. A crime is an unlawful or illegal activity. Such activity, however, can be
differentiated either as crime or civil wrong. The question that arises is, what can be
denoted as crime or civil wrong?

Through this article, we will be understanding the concept of crime, their nature, scope,
etc.

Meaning of crime
There is no proper definition to describe crime. In India, the Indian Penal Code of
1860 (IPC) states the punishment for most criminal offences. The IPC has also not defined
crime. However, it has laid down certain facts which can be considered as what can come
under the purview of criminal offences. As per Section 40, anything which is punishable
by the IPC can be stated as an offence. The Code of Criminal Procedure, 1908, also to an
extent defines criminal offences. It states that any act or omission which is punishable by
any law in force, and also any act on which a complaint is made under Section 20 of
the Cattle-Trespass Act, 1871, can be referred to as a crime.

There have been several jurists and philosophers who have given their definition of
crime. Famous English jurist William Blackstone had defined the term crime as any such
act that had been committed or had been omitted in the violation of any public law is
termed as a crime. Sergeant Stephen, an English philosopher, had also defined crime.
According to his definition, crime is not only any such act or omission which is punishable
by law but also such acts which hurt the moral sentiments of the society. Prof. Kenny, a
famous jurist, too had defined crime. As per him, crime can be only denoted to such acts
which are punishable and only remissible by the State, if the State feels so. However, this
definition has gained little criticism. This definition has been criticized on the fact that
crime can only be remissible by the State, but some compoundable offences can be
amicably sorted out within the private persons.

There are two main categories of crime: mala in se and mala prohibita. Mala in se refers
to acts that are inherently evil or immoral, such as murder and rape. Mala prohibita
refers to acts that are prohibited by law but are not inherently wrong, such as traffic
violations and tax evasion.
Crimes versus torts

A crime, or public wrong, is to be distinguished from a tort, or private wrong. Actually,

the same act may be both a crime and a tort. For example, O. J. Simpson's alleged killings
of Nicole Simpson and Ron Goldman included the torts of assault, battery, and wrongful
death. Simpson's alleged acts gave rise to both a criminal prosecution (seeking
punishment) and a civil suit for damages.

Nature of crime

Certain principles determine the nature of crime. Those principles are:

1. Crime is either an act or omission of any act on the part of a human being, which
is harmful to society at large. Crime must be a public wrong.
2. The actions taken in crime are always in rem, that is, against the whole world.
When any crime is committed, action is taken against the accused by the
concerned State or government.
3. Crime are always punishable by the law. Such acts are prevented by a threat or
sanction of punishment administered by the State.
4. A special legal procedure is followed after the crime is discovered. Usually, in
these cases, the accused is taken into custody following the law and
investigation begins, trials take place, and eventually, the judgment is delivered.

Scope of crime

So far, we have got an idea of what can be denoted as crime. However, let us look into
the scope of such activities. Under the Indian law, the Code of Criminal Procedure
classifies the offences into different categories. It classifies offences into cognizable and
non-cognizable offences.

 Cognizable offences can be stated as any such offences where the police can
arrest the accused without any warrant. In such offences, the police officer can
start the investigation of the case without the permission of the Magistrate. It
has been observed that such offences are usually grave and non-bailable.
 On the other hand, non-cognizable offences are those where police cannot
arrest the accused without the arrest warrant from the Magistrate. In such
offences, the police need to have prior permission from the Magistrate to start
the investigation. Such offences are usually less serious and bailable.
Classification of crimes under the IPC is as follows:
  Crime against the body – IPC recognizes crime against the body in the form of
murder, kidnapping, abduction, hurt, causing death by negligence.
 Crime against property – IPC recognizes robbery, theft, dacoity, preparation,
and assembly to commit dacoity, burglary as crimes against property.
 Crimes against public order – IPC recognizes riots, arson, etc.
 Economic crimes – IPC recognizes criminal breach of trust, cheating,
counterfeiting, etc.
 Crimes against a woman – Rape, assault, dowry death, cruelty by husband and
his relatives, etc.
 IPC also recognizes crimes against children. For example, kidnapping for slavery,
kidnapping from lawful guardianship, procuration for minor girls, etc.
 All other crimes mentioned in IPC come under the scope of crime.
Certain special and local Acts also determine crime and give punishments. Some of them
are the Narcotics Drug and Psychotropic Act, 1985, Arms Act, 1959, the Public Gambling
Act, 1867, Excise Act, 1958, Immoral Traffic (Prevention) Act, 1956, Indian Railways Act,
1989, Essential Commodities Act, 1955, Scheduled Caste and Scheduled Tribe (Prevention
of Atrocities) Act, 1989, etc.

Problems in the identification of crime

At times, it becomes very difficult to identify what can be constituted as a crime. Thus, to
determine crime, we can look into the fundamentals that are required for an activity to
be denoted as crime.
 Functions & Objectives of Criminal Law

The criminal law system in India serves several functions, including:

1. Deterrence: Criminal law acts as a deterrent by punishing offenders for committing

crimes. The threat of punishment helps to prevent people from committing
criminal acts in the first place.

2. Retribution: Criminal law provides a means for society to seek retribution for harm
caused by criminal acts. Offenders are punished to ensure that justice is served and
victims are compensated.

3. Rehabilitation: The criminal justice system aims to rehabilitate offenders by

providing them with opportunities to learn new skills and change their behavior.
This helps to prevent them from committing further crimes and reintegrates them
into society.

4. Protection: Criminal law protects the rights and interests of citizens by providing a
mechanism for individuals to seek redress for criminal acts committed against
them. The criminal justice system also protects society from dangerous criminals
by removing them from society and preventing them from committing further
crimes.

5. Prevention: Criminal law helps to prevent future crime by educating people about
the consequences of criminal behavior, enforcing laws and regulations, and
working with other institutions to address the root causes of crime.

6. Restoration: Criminal law seeks to restore the social order by punishing offenders
and ensuring that they make amends for their crimes. This helps to restore the
trust and confidence of citizens in the legal system and society as a whole.

Overall, the criminal law system in India serves to maintain law and order, protect
citizens' rights and interests, and uphold the principles of justice and fairness.
Theories of Punishment/ Objectives of criminal law

There are different kinds of punishment that a person can face. In order to understand
them, first, we need to understand the theories of the punishment. There are majorly four
theories of punishment.

These theories are the deterrent theory, retributive theory, preventive theory, and
reformative theory. We will discuss these theories in length below.

Deterrent theory
The word deterrence is derived from the Latin word deterrere which means to frighten
from, to discourage from, to prevent from. Deterrent theory of punishment was given by
classical philosophers such as Thomas Hobbes, Cesara Beccaria and Jeremy Bentham. The
main purpose this theory is to prevent(deter) the crime with the help of terror of
punishment.

Salmond quoted deterrent theory as 'Punishment is before all things deterrent and the
chief end of the law of crime is to make the evildoer an example and a warning to all that
are likeminded with him'.

Two types of deterrence are specific deterrence and general deterrence. Specific
deterrence means an individual offender who is punished for his/her offence won't
commit that offence again in the fear of punishment he/she already gone through.
General deterrence means is a fear of public at large, they don't have an personal
experience of punishment but they have a knowledge of punishment experienced by a
defendant.

The idea that individuals will always make rational, cautious and logical decisions is
known as the rational choice theory. Deterrence theory is based on rational choice
theory that states people commit crimes when the expected benefits of committing a
crime outweigh the likely costs of crime. In deterrence theory the punishments are
always having more weightage than the gain from that crime so the person with rational
thinking will never do that crime.

Criticism of deterrence theory are it assumes that human beings are rational actors who
consider the consequences of their behaviour before deciding to commit a crime;
however, this is often not the case, high rate of recidivism and because of severity of
punishment society started treating a criminal as a victim.
Preventive theory / Prevention
The main object of preventive theory is to prevent and disable the offender from
committing and repeating crime. Justice Holmes is known as the profounder of
preventive theory.

Utilitarian philosopher's such as Bentham, Mill and Austin of England supported the
preventive theory of punishment due to its humanizing nature. This theory does not act
so much on the motive of the wrongdoer but disables his physical power to commit the
offence.

Preventive theory and deterrent theory are similar in most of the aspects but there is a
slight difference between them. Both the theories are preventing crime by using different
methods. Preventive theory prevents crime by disabling defender from doing crime. The
deterrent theory prevents crime by warning the society at large with the help of severe
punishments.

Reformative theory / Rehabilitation.

Reformative theory is also known as rehabilitative theory. The object of the theory is to
reform the criminal other than punishing him/her. The principle of this theory is no one is
a born criminal in our society. According to this theory we have to separate crime from
the criminal there are various reasons like environment, circumstance, personal issues
etc. abet someone to commit crime. Reformative theory is accepted in most of the
countries around the world on its humanitarian ground of rehabilitating a criminal into a
good human.
The offender should be punished only after considering his/her age, education, character,
offences already done by him/her and mindset. Most of the crimes are done on a rare
circumstance, sudden provocation and not having time for rational thinking this situation
may not going to happen again in their life so stamping and treating someone as a
criminal for his/her single act is not healthy to our society. Reforming the morals of the
offender by educating and teaching some art or industrial work during the period of his
imprisonment so he/she may be starting his/her life again after release from jail.
In various acts and sections this theory is already implemented are the children act 1960,
The Probation of Offenders act 1958 and section 27 & 360 of Criminal Procedure Code.
Criticisms of reformative theory are according to Salmond, the reformative theory is that
if criminals are to be sent to be transformed into good citizens by physical, intellectual
and moral training, prisons must be turned int comfortable dwelling places, the cost of
rehabilitation is burden to the government, the victims won't get any justice, victims
family will have the vengeance it may lead to another crime and criminal don't have any
fear of punishment.
Retributive theory/ Retribution
Retributive theory is based on famous principle 'an eye for an eye', 'a tooth for a tooth'. It
is also known as theory of vengeance. Plato was a supporter of retributive theory. He
wrote 'if justice is the good and the health of the soul as injustice is its disease and
shame, chastisement their remedy'. In Latin term lex talionis, principle developed in early
Babylonian law and present in both biblical and early Roman law that criminals should
receive as punishment precisely those injuries and damages they had inflicted upon their
victims.
Retributive theory satisfies the desire of victim's family by inflicting punishment to the
offender in order to avoid the danger of private vengeances. The punishment is
proportional to the crime committed by criminal. The main purpose of this payback
punishment is to make the criminal suffer to the extent he made the victim suffer.
Criticism of retributive theory are to punish crimes itself has some difficulties. In
retributive theory they don't have any particular standards to punish crimes they punish
crimes on subjective basis. Punishment in itself is an evil, new evil is not a remedy for an
old evil. Pardon and mercy have no places under retributive theory.

Compensatory theory/ Restoration

According to compensatory theory, object is to compensate the victim suffered by crime
done by offender. This theory mostly applicable to civil justice than the criminal justice.
The purpose of compensatory theory is to get back the ill-gotten benefits of the crime
from the offender. Compensation helps the victim to rehabilitate and reform him/herself
from the loss caused by offense.
In the Criminal Procedure Code, 1973 this theory is already being implemented. This
Code classifies the offences in two categories , one serious natured crimes and another
simple crime. Section 320 of Cr.P.C. describes certain crimes, which can be
compoundable. The accused can compromise with the victim by paying compensation.
Assault, defamation, etc: are classified as 'compoundable offences' under Section 320
CrPC.
The framers of the Code intentionally excluded the offences of murder, kidnapping, rape,
theft, etc., from compoundable offences. These cases are not compromisable and
compoundable. The State shall inquire, investigate and punish the culprit to protect the
society from such culprits.

Criticism of compensatory theory are not effective like other theories of punishment the
economic position of the offender plays a major role in this theory if the offender is poor,
he/she have no source to pay compensation, if the offender is rich the payment of
compensation has no impact on him, it oversimplifies the motive of the crime and it
increase recidivism.
The fundamental elements are:

Human beings

The term human being is not defined in the IPC, but IPC has defined ‘man’, ‘woman’,
‘persons’, ‘public’, and ‘gender’. As per IPC, the term ‘gender’ denotes both male and
female unless stated anything else expressly in any provision or statutes. In the case
of Girdhar Gopal v. State (1952), the issue was that the term ‘he’ used in Section 354 of
IPC denoted only the male or both male and female. The High Court of Madhya Pradesh
had held that the term ‘he’ will denote both men and women. Thus, a man or a woman
will be held guilty for outraging the modesty of a woman based on the circumstances of
the case.

The IPC has also defined the terms ‘man’ and ‘woman’. According to IPC, ‘man’ can be
stated as any male of any age and ‘woman’ can be stated as any female of any age. IPC
commenced in the year 1860. At that time, the concept of the third gender was not
recognized by IPC. However, over the years, it has been observed that the third gender
needs to be recognized under IPC and other laws. Due to their non-recognition, they
were discriminated against from getting justice or rights and could not enjoy the
fundamental rights guaranteed by the constitution. Thus, in the landmark case
of National Legal Services Authority v. Union Of India (2012), the honourable Supreme
Court had held that all those persons who, at the time of their birth, were neither male
nor female will be denoted as the third gender and they will be recognized under the
Indian law. This was mainly done to safeguard them and enable them to enjoy their
fundamental rights, social, economic, political, and other legal rights. The ambit of the
term ‘man’ and ‘woman’ is very wide, but it does not include anyone in the womb of a
lady.

The IPC has also defined the term ‘person’. Under IPC, a ‘person’ can be both a natural
person like any human being and any artificial person like any corporation or company, or
association. The term ‘person’ also includes a body of persons or any idols which is often
stated as a legal person. However, in criminal cases, the corporations are only held liable
for any quasi-criminal offences like non-repair of bridges, nuisance, trespass, forgery, etc.
Corporations can never be held liable for offences like murder, robbery, or everything
which falls under the purview of offences against the State, and for any offence whose
punishment has been prescribed as imprisonment or death. An unborn child in the womb
of a mother is also considered a person under Section 11 of IPC.
Under IPC, the term ‘public’ is used for any class of public or community. IPC does not lay
down the definition but states out what can come under the term ‘public’. This term
cannot be interpreted widely.

Mens rea

It is one of the most important essentials required to claim an act as a crime. Criminal law
keenly observes the behaviour or conduct of the person who had committed the crime. It
is believed that the conduct of a person is very important to determine an accused is
guilty or innocent. In criminal law, an activity to be denoted as crime, the act must consist
of some manifestation of physical behaviour; any sort of mental element present to
execute the crime.

Actus non facit reum nisi mens sit rea" is a Latin legal maxim that means "an act does not
make a person guilty unless the mind is also guilty." This principle is a fundamental aspect
of criminal law and is often referred to as the principle of mens rea.

The principle of mens rea requires that in order for an individual to be convicted of a
crime, they must have had a guilty state of mind or criminal intent at the time the crime
was committed. In other words, it is not enough for the individual to have committed the
act that is prohibited by law. They must also have intended to commit the act or have
acted recklessly or negligently.

The principle of mens rea is critical for ensuring that individuals are not unfairly punished
for accidental or unintended actions. For example, if an individual accidentally causes
harm to another person while driving, they may be liable for civil damages but would not
be guilty of a crime unless they had intended to cause harm or had acted recklessly or
negligently.

There are different levels of mens rea that are recognized in criminal law, ranging from
intentional to negligent. The most serious offenses require proof of intent, while other
offenses may only require proof of negligence or recklessness.

The principle of mens rea is an essential element of a fair and just criminal justice system.
It ensures that individuals are held accountable for their actions only when they have
acted with criminal intent or recklessness, and not for accidental or unintended behavior.
It also provides a safeguard against arbitrary and unfair punishment by requiring that
both the act and the intent to commit the act are present before an individual can be
convicted of a crime.
In the case of Om Prakash v. State of Uttarakhand, (2003), it was held that the motive of
a crime is not necessary to determine conviction. In this case, the court turned down the
plea of absence of motive for the commission of the crime where the guilt of the accused
had been already proved. Under Indian law, the doctrine of mens rea has been used in
two different ways. Firstly, in IPC, offences in themselves have been stated with words
like ‘voluntarily’, ‘intentionally’, and ‘knowingly’, which thereby shows the usage of the
doctrine. Secondly, the doctrine of mens rea had also been incorporated in Chapter IV of
IPC where the general exceptions are stated.

Actus reus

‘Actus reus’ means an act or a deed committed by any person. Generally, it means the
physical commission of a deed either by committing something which was prohibited by
law to do or refusal of any act which was stated by law to do. It is the physical result of
human conduct. In the case of Moti Singh v. State of Uttar Pradesh (1963), it was
observed that two gunshots were fired at the victim. The victim, after two to three
weeks, succumbed to injuries. However, to prove that the victim was murdered, it was
necessary to prove that the victim died due to the gunshots fired at him. The mens rea
and actus rea are interlinked to each other. There is no mens rea without actus reus. The
presence of mere malice without the commission of any act would not amount to crime.
For example, if a man had in mind thought to kill a woman, but he had not done any such
act, then it would not amount to a crime.

Injury

Injury has been defined by the IPC. The term injury has a wider ambit under IPC. It not
only includes bodily harm but also includes harm to one’s mind, reputation, or property.
An injury will be only determined as an element of an offence if it has been caused
illegally. If the injury has not happened due to any illegal activity, it will not amount to
any offence. The injury can be against one person, group of persons or society at large.

Conclusion
Any crime does not affect just the victim or their family, it also affects the whole society.
It creates lifelong trauma in society because society and crime are interrelated. They
cannot be separated as the accused at some point in his/her life had been part of the
same society and also where he/she commits such unlawful acts is also the society. Thus,
it is very crucial to prevent such crime. There have been various laws made to punish the
offenders. As of 2021, it has been reported by Delhi, the capital of India, that the crime
rates have dropped down to almost 15% from the previous year in Delhi. However, in
some other states in India, the crime rate has risen to an alarming rate as compared to
the previous year. Regarding the prevention of crime, the main power lies with the state
governments, therefore more strict and speedy actions should be taken to combat such
activities. If any State feels that certain laws need to be amended which would help
prevent such crime, they should immediately convey it to the concerned authority.

Territorial Jurisdiction

Section 2: Punishment of offences committed within India

Every person shall be liable to punishment under this Code and not otherwise for every
act or omission contrary to the provisions thereof, of which, he shall be guilty within
India.

Section 2 of IPC speaks about the intra-territorial jurisdiction of the Code. When a crime
is committed within the territory of India, it is known as intra-territorial jurisdiction.

As per this section, the Indian Penal Code applies to every person doing any act or
omission as opposed to the Code. The word ‘every person’ in this section means a citizen
of India, as well as a non-citizen who commits an offence. The person will be liable for the
punishment irrespective of its nationality, rank, caste, etc.

Note: A foreigner cannot plead that he did not know that the act he was doing was
wrong because the act is not an offence in his own country.

Although there are no exceptions to the jurisdiction of the Indian Penal Code, certain
persons are immune or exempted from liability under the Code. They are:

1. Foreign sovereigns.
2. Persons with high dignity of the State: The President of India and the Governors
of the State come under this position. It is given in Article 361 of the Indian
Constitution that ‘no criminal proceedings shall be instituted or continued
against the President or a Rajyapal of a State in any court during the term of his
office’.
3. Ambassadors and some foreign diplomats.
4. Alien enemies will not be liable under this Code for anything done in connection
with the war and, for them, martial law will apply.
5. Foreign army.
6. Warships: Man of war of a state in foreign waters are exempted or immune from
the jurisdiction of the State in whose territorial jurisdiction they are.
Note: If a person causes injury to another person on Indian territory, being physically
present in another country’s territory, the offender or the person causing injury may be
prosecuted within India if his existence in India for the trial can be secured.

Case Laws:
1. State of Maharashtra vs Mayer Hans George (1965)
2. Emp. vs Kastya Rama (1871)
3. Mobarik Ali Ahmed vs State of Bombay (1957)

Section 3: Punishment of offences committed beyond but which by law may be tried
within India

Any person liable, by any Indian law to be tried for an offence committed beyond India,
shall be dealt with according to the provisions of this Code for any act committed beyond
India in the same manner as if such act had been committed within India.

Section 3 of IPC deals with the extra-territorial jurisdiction of the Code. Accordingly, a
person can be held liable for anything done beyond the territory of India.

As per this section, a person who performs an act beyond the territorial boundaries of
the country and the consequences of such an act are such that it is deemed to have been
committed within the territory of India, the person causing an offence can be dealt with
the provisions of this Code for the act done by him, even if the country in which he has
committed the act, is not an offence under the general laws of that country.

Case Laws:
1. Remia vs Sub-inspector of Police, Tanur (1993)
2. Samaruddin vs Assistant Director of Enforcement, Trivendrum (1995)

Section 4: Extension of Code to extra-territorial offences

The provisions of this Code also apply to any offence committed by-
(1) any citizen of India in any place without and beyond India;
(2) any person on any ship or aircraft registered in India wherever it may be;
(3) any person in any place without and beyond India committing offence targeting a
computer resource located in India.

Explanation: In this section-

(a) the word “offence” includes every act committed outside India which, if committed in
India, would be punishable under this Code;
(b) the expression “computer resource” shall have the meaning assigned to it in clause (k)
of sub-section (1) of section 2 of the Information Technology Act, 2000.

Extra-territorial jurisdiction of IPC is extended to section 4 of IPC. This section describes

the jurisdiction of the Indian Criminal Courts in the following cases:
(a) Offences that are committed by any Indian citizen in any place beyond the territory of
India.
(b) Offences that any person commits, Indian citizen or foreigner, on any ship or aircraft
registered in India wherever it may be, within or outside the territory of India.
(c) Offences that are committed by any person, Indian or foreigner, in any place beyond
the territory of India targeting a computer resource(s) located in India.

Note: A foreigner who has committed a crime in India shall be subjected to the provisions
of the Indian laws, and he shall be punished as per the provisions of this act, even if he
was not physically present in India at the time of the commission of the offence.

Case Law: Sabu Mathew George vs Union Of India And Ors. (2017)

Section 5: Certain Laws not to be affected by this act

Nothing in this Act shall affect the provisions of any Act for punishing mutiny and
desertion of officers, soldiers, sailors or airmen in the service of the Government of India
or the provisions of any special or local law.

Section 5 is an exception to section 2 of IPC. It is a saving clause and provides for

restricting the jurisdiction of the Indian Penal Code, 1860 by obstructing the application
of the Code on the subject for which specific laws already exists. It also restricts the
applicability of the act over a certain class of people for whom the different laws are
already present in the country, such as soldiers, sailors, etc., in the service of the
government of India. Further, offences that are defined by special or local law have also
been excluded from the operation of the Code.

Note: It is possible that an offence may be punishable under both special or local law and
the Indian Penal Code. In such a case, if special or local law was incomplete in itself, the
Indian Penal Code will not be applied. But, if given in the local or special law that the
Indian Penal Code is not to be excluded, it will apply. A person cannot be punished under
both the Indian Penal Code and special law for the same offence.

Case Law: Hussun Ali (1873