Mens Rea and Actus Reus Judgements of the Hon’ble Supreme Court since 2017

Amish Devgan v. Union of India, (2021) 1 SCC 1

In Balwant Singh [Balwant Singh v. State of Punjab, (1995) 3 SCC 214 : 1995 SCC (Cri)
432] this Court had accepted that mens rea is an essential ingredient of the offence under
Section 153-A and only when the spoken or written words have the intention of creating
public disorder for disturbance of law and order or affect public “tranquillity”, an offence can
be said to be committed. This decision was relied on in Bilal Ahmed Kaloo [Bilal Ahmed
Kaloo v. State of A.P., (1997) 7 SCC 431 : 1997 SCC (Cri) 1094 was overruled on a different
point in Prakash Kumar v. State of Gujarat, (2005) 2 SCC 409 : 2005 SCC (Cri) 518.] while
referring to and interpreting sub-section (2) to Section 505 of the Penal Code. Similarly,
in Manzar Sayeed Khan [Manzar Sayeed Khan v. State of Maharashtra, (2007) 5 SCC 1 :
(2007) 2 SCC (Cri) 417] , the intention to promote feeling of enmity or hatred between
different classes of people was considered necessary as Section 153-A requires the intention
to cause disorder or incite the people to violence. The intention has to be judged primarily by
the language of the book and the circumstances in which the book was written and published.

This extract is taken from Gurcharan Singh v. State of Punjab, (2020)

10 SCC 200

As in all crimes, mens rea has to be established. To prove the offence of abetment, as
specified under Section 107 IPC, the state of mind to commit a particular crime must be
visible, to determine the culpability. In order to prove mens rea, there has to be something on
record to establish or show that the appellant herein had a guilty mind and in furtherance of
that state of mind, abetted the suicide of the deceased. The ingredient of mens rea cannot be
assumed to be ostensibly present but has to be visible and conspicuous. However, what
transpires in the present matter is that both the trial court as well as the High Court never
examined whether the appellant had the mens rea for the crime he is held to have committed.
The conviction of the appellant by the trial court as well as the High Court on the theory that
the woman with two young kids might have committed suicide possibly because of the
harassment faced by her in the matrimonial house is not at all borne out by the evidence in
the case. Testimonies of the PWs do not show that the wife was unhappy because of the
appellant and she was forced to take such a step on his account.

Suborno Bose v. Directorate of Enforcement, (2020) 14 SCC 241

In SEBI v. Cabot International Capital Corpn. [SEBI v. Cabot International Capital Corpn.,
2004 SCC OnLine Bom 180 : (2005) 123 Comp Cas 841] , the Court delineated the
principles as follows : (SCC OnLine Bom para 38)
“38. Thus, the following extracted principles are summarised:
(A) Mens rea is an essential or sine qua non for criminal offence.
(B) A straitjacket formula of mens rea cannot be blindly followed in each and every case. The
scheme of a particular statute may be diluted in a given case.
(C) If, from the scheme, object and words used in the statute, it appears that the proceedings
for imposition of the penalty are adjudicatory in nature, in contradistinction to criminal or
quasi-criminal proceedings, the determination is of the breach of the civil obligation by the
offender. The word “penalty” by itself will not be determinative to conclude the nature of
proceedings being criminal or quasi-criminal. The relevant considerations being the nature of
the functions being discharged by the authority and the determination of the liability of the
contravener and the delinquency.
(D) Mens rea is not essential element for imposing penalty for breach of civil obligations or
liabilities.
(E) There can be two distinct liabilities, civil and criminal, under the same Act.”
(emphasis in original)

Lakshman v. State of Karnataka, (2019) 9 SCC 677

The learned Senior Counsel Shri R. Basant appearing for the accused, in support of his case,
relied on the judgment of this Court in S.W. Palanitkar v. State of Bihar [S.W.
Palanitkar v. State of Bihar, (2002) 1 SCC 241 : 2002 SCC (Cri) 129] and submitted that
every breach of contract may not result in a penal offence, but in the very same judgment,
this Court has held that breach of trust with mens rea gives rise to a criminal prosecution as
well. In a given case, whether there is any mens rea on the part of the accused or not is a
matter which is required to be considered having regard to the facts and circumstances of the
case and contents of the complaint, etc. In the case on hand, it is clearly alleged that even
before entering into the agreement dated 26-9-2012, lands were already sold to third party,
which were agreed to be procured in favour of the appellant. Not only that, it is the specific
allegation of the complainant that the cheques were issued towards security from the account
which was also closed much earlier to the date of agreement itself.

Shiv Kumar Jatia v. State (NCT of Delhi), (2019) 17 SCC 193

The liability of the Directors/the controlling authorities of company, in a corporate criminal

liability is elaborately considered by this Court in Sunil Bharti Mittal [Sunil Bharti
Mittal v. CBI, (2015) 4 SCC 609 : (2015) 2 SCC (Cri) 687] . In the aforesaid case, while
considering the circumstances when Director/person in charge of the affairs of the company
can also be prosecuted, when the company is an accused person, this Court has held, a
corporate entity is an artificial person which acts through its officers, Directors, Managing
Director, Chairman, etc. If such a company commits an offence involving mens rea, it would
normally be the intent and action of that individual who would act on behalf of the company.
At the same time it is observed that it is the cardinal principle of criminal jurisprudence that
there is no vicarious liability unless the statute specifically provides for. It is further held by
this Court, an individual who has perpetrated the commission of an offence on behalf of the
company can be made an accused, along with the company, if there is sufficient evidence of
his active role coupled with criminal intent. Further it is also held that an individual can be
implicated in those cases where statutory regime itself attracts the doctrine of vicarious
liability, by specifically incorporating such a provision.

Ude Singh v. State of Haryana, (2019) 17 SCC 301

For the purpose of finding out if a person has abetted commission of suicide by another, the
consideration would be if the accused is guilty of the act of instigation of the act of suicide.
As explained and reiterated by this Court in the decisions above referred, instigation means to
goad, urge forward, provoke, incite or encourage to do an act. If the persons who committed
suicide had been hypersensitive and the action of the accused is otherwise not ordinarily
expected to induce a similarly circumstanced person to commit suicide, it may not be safe to
hold the accused guilty of abetment of suicide. But, on the other hand, if the accused by his
acts and by his continuous course of conduct creates a situation which leads the deceased
perceiving no other option except to commit suicide, the case may fall within the four corners
of Section 306 IPC. If the accused plays an active role in tarnishing the self-esteem and self-
respect of the victim, which eventually draws the victim to commit suicide, the accused may
be held guilty of abetment of suicide. The question of mens rea on the part of the accused in
such cases would be examined with reference to the actual acts and deeds of the accused and
if the acts and deeds are only of such nature where the accused intended nothing more than
harassment or snap show of anger, a particular case may fall short of the offence of abetment
of suicide. However, if the accused kept on irritating or annoying the deceased by words or
deeds until the deceased reacted or was provoked, a particular case may be that of abetment
of suicide. Such being the matter of delicate analysis of human behaviour, each case is
required to be examined on its own facts, while taking note of all the surrounding factors
having bearing on the actions and psyche of the accused and the deceased.

We may also observe that human mind could be affected and could react in myriad ways; and
impact of one's action on the mind of another carries several imponderables. Similar actions
are dealt with differently by different persons; and so far a particular person's reaction to any
other human's action is concerned, there is no specific theorem or yardstick to estimate or
assess the same. Even in regard to the factors related with the question of harassment of a
girl, many factors are to be considered like age, personality, upbringing, rural or urban set-
ups, education, etc. Even the response to the ill action of eve teasing and its impact on a
young girl could also vary for a variety of factors, including those of background, self-
confidence and upbringing. Hence, each case is required to be dealt with on its own facts and
circumstances.

Sasikala Pushpa v. State of T.N., (2019) 6 SCC 477

There could be no two views about the proposition that even if forgery is committed outside
the precincts of the court and long before its production in the court, it would also be treated
as one affecting the administration of justice. But in the present case, the vakalatnama filed
by the appellants in Crl. OP (MD) No. 15370 of 2016 seeking anticipatory bail in Crime No.
5 of 2016 cannot be said to be a forged document. As pointed out earlier, the appellants have
admitted their signatures in the vakalatnama. They only allege that it was mistakenly
recorded that it has been signed on 18-8-2016 at Madurai in the presence of the advocate. Of
course, the version in the vakalatnama is an incorrect statement. In our opinion, the High
Court was not justified in terming the said mistake or error as fraud. Fraud implies intentional
deception aimed at achieving some wrongful gain or causing wrongful loss or injury to
another. Intention being the mens rea is the essential ingredient to hold that a fraud has been
played upon the court. The learned counsel for the State has submitted that upon examination
of the signature in the vakalatnama, the handwriting expert has opined that it is not the
signature of the appellants and therefore, the intention of the appellants to create a forged
document has been clearly made out. We do not find any merit in the submission as the
appellants themselves admitted their signatures in the vakalatnama. In the light of the
statement of the appellants admitting their signatures in the vakalatnama, we do not think that
the opinion of the handwriting expert would stand on any higher footing. There is nothing on
record to suggest that the appellants gained anything by playing fraud or practising deception.
In the absence of any material to substantiate the allegations, in our view, the High Court was
not justified in accusing the appellants of fraud.

‘X’ v. State of Maharashtra, (2019) 7 SCC 1

Now we need to consider the test for recognising an accused eligible for such mitigating
factor. It must be recognised that insanity recognised under IPC and the mental illness we are
considering in the present case arise at a different stage and time. Under IPC, Section 84
recognises the plea of legal insanity as a defence against criminal prosecution.
(Refer Surendra Mishra v. State of Jharkhand [Surendra Mishra v. State of Jharkhand,
(2011) 11 SCC 495 : (2011) 3 SCC (Cri) 232] .) This defence is restricted in its application
and is made relatable to the moment when the crime is committed. Therefore, Section 84 IPC
relates to the mens rea at the time of commission of the crime, whereas the plea of post-
conviction mental illness is based on appreciation of punishment and right to dignity.
(Refer Amrit Bhushan Gupta v. Union of India [Amrit Bhushan Gupta v. Union of India,
(1977) 1 SCC 180 : 1977 SCC (Cri) 66 : AIR 1977 SC 608] .) The different normative
standards underpinning the above consequently mean different threshold standards as well.
 Satishchandra Ratanlal Shah v. State of Gujarat, (2019) 9 SCC 148

Now coming to the charge under Section 415 punishable under Section 420 IPC. In the
context of contracts, the distinction between mere breach of contract and cheating would
depend upon the fraudulent inducement and mens rea. (See Hridaya Ranjan Prasad
Verma v. State of Bihar [Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC
168 : 2000 SCC (Cri) 786] .) In the case before us, admittedly the appellant was trapped in
economic crisis and therefore, he had approached Respondent 2 to ameliorate the situation of
crisis. Further, in order to recover the aforesaid amount, Respondent 2 had instituted a
summary civil suit seeking recovery of the loan amount which is still pending adjudication.
The mere inability of the appellant to return the loan amount cannot give rise to a criminal
prosecution for cheating unless fraudulent or dishonest intention is shown right at the
beginning of the transaction, as it is this mens rea which is the crux of the offence. Even if all
the facts in the complaint and material are taken on their face value, no such dishonest
representation or inducement could be found or inferred.

CCI v. Thomas Cook (India) Ltd., (2018) 6 SCC 549

Lastly, the submission raised that there were no mala fides on the part of the respondent as
such penalty could not have been imposed. We are unable to accept the submission. The
mens rea assumes importance in case of criminal and quasi-criminal liability. For the
imposition of penalty under Section 43-A, the action may not be mala fide in case there is a
breach of the statutory provisions of the civil law, penalty is attracted simpliciter on its
violation. The imposition of penalty was permissible and it was rightly imposed. There was
no requirement of mens rea under Section 43-A or intentional breach as an essential element
for levy of penalty. Section 43-A of the Act does not use the expression “the failure has to be
wilful or mala fide” for the purpose of imposition of penalty. The breach of the provision is
punishable and considering the nature of the breach, it is open to impose the penalty.
 SCM Solifert Ltd. v. CCI, (2018) 6 SCC 631

Arun Mishra, J.— The appellants SCM Solifert Ltd. and another are in appeal under Section
53-T of the Competition Act, 2002 (hereinafter referred to as “the Act”) as against the final
judgment and order dated 30-8-2016 passed in SCM Soilfert Ltd. v. CCI [SCM Soilfert
Ltd. v. CCI, 2016 SCC OnLine Comp AT 441] by the Competition Appellate Tribunal
thereby affirming the order [SCM Soilfert Ltd., In re, 2015 SCC OnLine CCI 210] passed by
the Competition Commission of India under Section 43-A of the Act.

The Competition Commission of India initiated the proceedings against the appellants on
whom due to the failure to notify a proposed combination as required under Section 6(2) of
the Act, the penalty of rupees two crores was imposed under Section 43-A of the Act. On 3-
7-2013, the appellants had purchased 2,89,91,150 shares of Mangalore Chemicals and
Fertilisers Ltd. (in short referred to as “MCFL”) constituting 24.46 paid-up share capital of
MCFL on the Bombay Stock Exchange.

It was the case on behalf of the appellants that the first acquisition was made solely for the
purpose of investment under Entry I of Schedule I of the CCI (Procedure in Regard to the
Transaction of Business Relating to Combinations) Regulations, 2011, (hereinafter referred to
as “the Competition Regulations”). Thereby, it assumed exemption from the notification. It
was also urged that the second acquisition was notified to the Commission within the
stipulated time of 30 days as specified in Section 6(2) of the Act. The purchase was not
consummated because as per the Escrow Agreement dated 28-4-2014, the shares purchased
in the second acquisition were credited to a specifically designated Escrow account of J.M.
Financial Services Ltd. The sole purpose of entering into an escrow agreement was that the
transaction was not consummated prior to approval of the Commission. The Commission has
imposed the penalty of Rs 2 crores; the Appellate Tribunal has affirmed the order. The
Commission has held that the appellants have violated Section 6(2) of the Act by failing to
notify the proposed combination.
There was no requirement of mens rea under Section 43-A or an intentional breach as an
essential element for levy of penalty. The Act does not use the expression “the failure has to
be wilful or mala fide” for the purpose of imposition of penalty. The breach of the provisions
of the Act is punishable and considering the nature of the breach, it is discretionary to impose
the extent of penalty. Mens rea is important to adjudge criminal or quasi-criminal liability,
not in case of violation of the civil statutory provision.

Common Cause v. Union of India, (2018) 5 SCC 1

A distinction arises between active and passive euthanasia from the provisions of the Penal
Code. Active euthanasia involves an intention to cause the death of the patient. Mens rea
requires a guilty mind; essentially an intent to cause harm or injury. Passive euthanasia does
not embody an intent to cause death. A doctor may withhold life support to ensure that the
life of a patient who is in the terminal stage of an incurable illness or in a permanent
vegetative state, is not prolonged artificially. The decision to do so is not founded upon an
intent to cause death but to allow the life of the patient to continue till and cease at the end of
its natural term. Placing such a person on life support would have been an intervention in the
natural process of death. A decision not to prolong life by artificial means does not carry an
intention to cause death. The crucial element in Section 299 is provided by the expression
“causes death”. In a case involving passive euthanasia, the affliction of the patient is not
brought about either by an act or omission of the doctor. There is neither an animus nor an
intent to cause death. The creation of the condition of the patient is outside the volition of the
doctor and has come about without a covert or overt act by the doctor. The decision to
withhold medical intervention is not intended to cause death but to prevent pain, suffering
and indignity to a human being who is in the end stage of a terminal illness or of a vegetative
state with no reasonable prospect of cure. Placing a patient on artificial life support would, in
such a situation, merely prolong the agony of the patient. Hence, a decision by the doctor
based on what is in the best interest of the patient precludes an intent to cause death.
Similarly, withdrawal of artificial life support is not motivated by an intent to cause death.
What a withdrawal of life support does is not to artificially prolong life. The end of life is
brought about by the inherent condition of the patient. Thus, both in a case of a withdrawal of
life supporting intervention and withholding it, the law protects a bona fide assessment of a
medical professional. There being no intent to cause death, the act does not constitute either
culpable homicide or murder.

Bijoy Sinha Roy v. Biswanath Das, (2018) 13 SCC 224

Test to determine medical negligence

Negligence is breach of duty caused by omission to do something which a reasonable man

would do or doing something which a prudent and reasonable man would not do. Negligence
in the context of medical profession calls for a treatment with a difference. Error of judgment
or an accident is not proof of negligence. So long as doctor follows a practice acceptable to
the medical profession of the day, he cannot be held liable for negligence merely because a
better alternative course was available. A professional may be held liable for negligence if he
does not possess the requisite skill which he claims or if he fails to exercise reasonable
competence. Every professional may not have highest skill. The test of skill expected is not
of the highest skilled person. Concept of negligence differs in civil and criminal law. What
may be negligence in civil law may not be so in criminal. In criminal law, element of mens
rea may be required. Degree of negligence has to be much higher. Res ipsa loquitur operates
in domain of civil law but has limited application on a charge of criminal negligence [Jacob
Mathew v. State of Punjab, (2005) 6 SCC 1, para 48].

Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1

The most important aspect of the offence of conspiracy is that apart from being a distinct
statutory offence, all the parties to the conspiracy are liable for the acts of each other and as
an exception to the general law in the case of conspiracy intent i.e. mens rea alone constitutes
a crime. As per Section 10 of the Evidence Act, once reasonable ground is shown for
believing that two or more persons have conspired to commit an offence then, anything done
by any one of them in reference to their common intention, is admissible against the others.
As held in State of Maharashtra v. Damu [State of Maharashtra v. Damu, (2000) 6 SCC
269 : 2000 SCC (Cri) 1088] , the only condition for the application of the rule in Section 10
of the Evidence Act is that there must be reasonable ground to believe that two or more
persons have conspired together to commit an offence.

K. Sitaram v. CFL Capital Financial Service Ltd., (2017) 5 SCC 725

With regard to the contention of the learned Senior Counsel for the appellants herein that
there can be no vicarious liability attributed to the Director, Deputy Director of a Company
unless the statute specifically creates so, no doubt, a corporate entity is an artificial person
which acts through its officers, Directors, Managing Director, Chairman, etc. If such a
company commits an offence involving mens rea, it would normally be the intent and action
of that individual who would act on behalf of the company that too when the criminal act is
that of conspiracy. Thus, an individual who has perpetrated the commission of an offence on
behalf of the company can be made an accused, along with the company, if there is sufficient
evidence of his active role coupled with criminal intent. Second situation in which an
individual can be implicated is in those cases where the statutory regime itself attracts the
doctrine of vicarious liability, by specifically invoking such a provision.