16 INDIAN PENAL CODE

Section 22(2) of the Road Traffic Act, 1930 provides that

vehicle which collides with another must bring the fact of the driver of a
notice of the proper authority. The trailer of the appellant's accident to the
with another motor car. The driver had no knowledge of the vehicle colided
collision but he
was convicted by the magistrate for his failure to report the accident.
aside his conviction Lord Goddard, CJ. observed in Harding v. Price :Setting
"In these days when offences are nullified by various regulations
and orders to an extent which makes it difficult for the most law-abjdine
subjects in some way or at some time to avoid offending against the
law, it is more important than ever to adhere to this principle."!
Mens Rea and Statutory Offences
The question whether the common law requirement of mens rea must be
imported into every crime defined in the statute even where it is not expressly
mentioned as an ingredient has been discussed in a number of cases both
English and Indian. R. v. Prince and Queen v. Tolson are the two landmark
decisions on the subject.) The conception of mens rea was introduced into the
statutory offences by the judges by means of 'construction' without any
Parliamentary sanction. There are two schools of thought. One embodied in
the judgment of Wright J., in Sherras v. De Rutzen that "in every statute mens
that of
rea is to be implied unless the contrar is shown; and the second isconstrue
Kennedy, L. J., in Hobbs v. Winchester Corporation that you ought to is required.
the statute literally unless there is something to show that mens rea
not in others,
On either view mens rea is implied in certain statutes and recognition of
a
although there are no words in the statute itself to show
mens rea and judges provide for it on their own authority.°
useful to discuss SOme
For a better illucidation of the subiect it would be Prince.' Henry Prnce,
or the cases in detail. The first of
such cases is R. v.
Against the res
the prisoner was charged under section 55 of the Offence under
unmarried girl, being father.
Act, 1861 for having taken one Annie Philips, an will of her
the age of 16 years, out of the possession and against the taken an
Cause to be
In England it is an offence 'unlawfully to take or possession and
out of the care
unmarried girl, being under the age of 16 years having the lawful of
against the will of her father or mother or any person out
did take the girl under
and charge of her.' It was proved that the prisoner she was
the possession and against the will of her father and also that existed except that
16 years. All the facts necessary to support for conviction looked very
old
the girl, though proved by her father to be fourteen years evidence that before
much older than that and the jury found upon reasonable eighteen years
the defendant took her away she has told him that she was ofthat such belief
and that the defendant bona fide believed that statement, and
was reasonable. which
under
It was contended that although section 55 of the Statute
1. Hurding v. Price, (1948) A. E.R. 283.
2 (1875) L.R. 2
3. (1889) 23 CC.R. 154.
4 (1895) 1 O.B.D. 168.
5 1910) 2 Q.B. 918.
(, KB. 471. (1958)at
Devlin, of Law
P 208 latrick, "Statutory offences", The I. of the Soc. of Pub, T.
7
(1875) LR 2 CCR. 154.
 GENERAL INTRODUCTION 17

krnowledge, on the part of the

this offence was created did not insist on the constitute the offence,
prisoner that the girl was under sixteen, as necessary to be applied and that
nevertheless
the common law doctrine of mens rea should criminal intent.
there could be no conviction in the absence of a
the words in section
The question, therefore, is reduced to this : whether under the age of
being
55, that whosoever shall take any unmarried girl, be read as if they were
sixteen, out of the possession of her father', are to
was under that "age". No
being under the age of sixteen, and knowing she there the word maliciously,
such words are contained in the statute, nor is be said to involve a similar
'knowingly', or any other word used that can
meaning prisoner must, therefore, entirely proceed
The argument in favour of the in a
the ground that, in general, aguilty mind is an essential ingredient
on crime, the intention of legislature
crime, and that where a statute creates a
be presumed to be to include knowingly, in the definition of the crime,
should as if that word were inserted, unless the
and the statute should be read
intention appears. We need not inquire at present whether the canon
contrary above stated, for we are of opinion that
of construction goes quite so far as punish the
intention of the legislature sufficiently appears to have been to her consent
the faCt, was of such an age as to make
abduction, unless the girl, in give an
excuse, irrespective of whether he knew her to be too young to
an at sixteeri.
effectual consent, and to fix that age
the statute contemplates, and what I say is wrong is, the taking
But what and can
female of such tender years that she is properly called aorgirl,
charge. No
of a
be in another's possession, in that other's care case. The
be said to state the
is necessary to prove this; it is enough toact, he does it at the
argument anyone, does this wrong
legislature has enacted thati f under sixteen. This opinion gives full scope to
risk of her turning out to Ifbethe taker believed he had the father's consent. was
the doctrine of mens
rea. know she
would have no mens rea. So if he did not cases
though wrongly, he in the care or charge of anyone, in those act
possessiorn, nor statutean
in anyone's
he was doing the act forbidden by the he
he would not
know
poSsession and in care or charge of anyone,
or not
in
which. if he knew she is or not, according as she was under sixteen
wOuld know was a crime an act wrong in itself, whatever was his
He would not know he was doing
without lawful cause.
intention, if done that were in
case a distinction was drawn between acts prohibitum) and
In this punishable by statute (malum
but made
thermselves innocent
intrinsically wrong or immoral (malum in se). In the former a
acts that reasonable belief, in the existence of facts which, if true,
were would take
belief, a
the mischief of the statute, would be a good defence; but init
of
the case case such a belief was immaterial unless of course the
out law made
the latter erroneous belief took the risk and
man who acted under such
otherwise. The consequence.
should suffer the in other cases. A man was held liable for
The same principle appes
officer in the execution of his duty, though he did not
assaulting a police Why ? because the act was wrong in itself. So
was a police officer.
know he a person charged claim an acquittal on
also in the case of aburglary, couldpast six when he entered ?
the ground that he believed it was
18 INDIAN PENAL CODE

It seems to me impossible, where a person takes a

possession, not knowing whether she is or is not undergirl out of her
he is not guilty; and equally impossible when he
that she is old enough for him to do a wrong act
sixtebuten, to sayfaththater's
believes,
conviction should be affirmd. safety. erIrthink
with oneouslthey,
The Queen v. Tolsonis another important case on the
case the prisoner was married to Mr. Tolson on
Tolson deserted her on December 13,1881. The September subject. In
11, 1880. thisMr.
inquiries about Tolson and learnt from his elderprisoner and her father made
report that he had been brother and from
lost in a vessel bound for general
with all hands on board. On January 10, 1887, theAmerica, which went d
to be a widow, went through the ceremony of prisoner Supposing herself
marriage with
The circumstances were all known to the
second husband and another
the man.
marriac
ceremony was in no way concealed. In December, 1887, Tolson
America. Thereafter, the prisoner was charged for offence of returned from
section 57 of the Offence Against the Persons Act, 1861, for bigamy under
through the ceremony of marriage within seven years after shehaving had
gone
been
deserted by her husband. The Jury found that at the time of
marriage she in good faith and on reasonable grounds believed her husband the second
to be dead.
Section 57 provides: "Whoever, being
person during the life of the former husbarnd ormarried, shall marry any other
wife shall be
P'roviso to the same section lays down: "nothing in this Actguilty of felony."
shall extend to
any person marrying a second time whose husband or wife shall have been
Continually absent from such person for the space of seven years past, ana
shall not have been known by such person to be living within that
It was held that a bona fide belief on reasonable grounds in the death
time.
of tBe husband at the time of the second mariage afforded a good defence
of the indictment, and that the
conviction was wrong
In this case the following principles were laid down :
() Although prima facie and as a general rule there must be a mnd
at fault before there can be
crime, it is not an inflexible rule, and a
statute may relate to such a subject matter and may be so framed as to
make an act criminal whether there has been any intention to break the
law or otherwise to do wrong or not. There is a large body of muniapal
law in the present day which is so conceived.
(1) Prima facie the statute was satisfied when the case was broug
within its terms, and it then lay upon the defendant to proveCommitted
thac g
violation of the law which had taken place, had been a man
accidentally or innocently so far as he was concerned. Suppos
dtaken up by mistake one of the two baskets alike and of similar
weight, one of which contained innocent articles belonging tOwith the
he
and the other marked government stores, and was caught
brought
Wrong basket in his hand. He would by his own act have think of
himself within the very words of the statute who would
convicting him. reasonable belief in the
DCOnmon law an honest and act for which
existernce of circumstances, which, if true would make the
1. (1889) 23 O.B.D. 168.
 GENE RAL N

indicted an innocent act has ahwavs nheld to be a gOOd

PISOner is maim us N0n it rCm
defence. This doctrine is embodied in the
stands in tact at the
eS sit rea". Honest and reasonable mistake
same tooting as absence of the reasonin8 facultv, as in infancy;
perversion of that faculty, as in lunacy. These exceptions apply equally
cse ot statutory offences unless they are excluded expressly or by
neessary implication.
) t is a general rule that an alleged offender is deemed to have
dCted under that state of facts which he in good faith
ground believed to exist, when it did the act alleged and on reasonable
to be an offence.
In this case the accused
acted
probable cause of belief without rashness or in good faith upon
reasonable and
to be considered as negligence, therefore she is not
offence of bigamy theguilty as she was found to be
can make a defence bymistaken. In case of an
absence for seven years.accused
And that even such an proving a continuous
if the absence will not be a
prosecution
seven years can
of the first prove knowledge on the part of the accused, defence
may be, was still alive. marriage, that the first wife or withn
In R. v. Prince the husband, as the case
fathr he was, altogetherprisoner knew that in taking the girl
improper and immoral act, while infrom the question of her away
apart
age,
from her
doing an
in the the present case there
widow. remarriage of the prisoner, who was nothing wrong
reasonably supposed herself to be
Rex. Thomas Wheat and Rex v.
on bigamy. In this Marion Stocks' is another
Wheat instructed hiscase Wheat'stowife had committed adultery. important case
On April 23, 1920 the solicitors obtain a decree of In May, 1919
and will lose no time solicitors wrote : "We can now divorce from his wife
over your petition, and in proceed with the matter.
Wheat. the terms of which
on luly 1, 1920 : "We were not in evidence, reply
the
to a telegram sent
by
have
signature in the course of a your telegram and hope to solicitors wrote to him
and on receipt of that letterdayhe or two." Wheat was a man send your papers for
of little
charged with believed that he was education
his wife being having on July 21, 1920, divorced. Wheat
married the prisoner Marion Stocks, was
Wheat by aidingthenin alive, and the prisoner
the commission of that Stocks was charged with abetting
prisoner in good faith and on reasonable offence. The Jury found that the
been divorced at the time he grounds
It was held that: "It went through the form believed of
that Wheat had
that the prisoner, at the time of defence in law to an marriage for
is no with Stocks.
go0d faith and on the alleged indictment bigamy
bigamous
reasonable grounds, that he had beenmarriage, believed, in
bond of his first marriage,
Of course, it may though in fact he had not beendivorced from the
afford a good reason for the divorced."
nuishment. This infliction
In Tolson's case thedecision not a conflict with the decision in ofR. a nominal
is
Was dead, therefore accused she
believed on reasonable grounds that her v. Tolson.
the act forbidden by thedid not intend at the time of second husband
statutenamely
Stephen in that case mainly relied upon the to marry during his marriage to do
separation for seven years has the effect proviso which showedlife.thatJustice mere
1. (1921l) 2 K.B. 119. which reasonable belief of death
 INDIAN PENAL CODE
20

have at any other

caused by other evidence would time. The
extent by
Tolson, though influenced to a great the proviso, judgmernt
proceeded mmainliny
on the application of the maxim "Actus non facit reum nisi Mens
doctrine of
In Comm. v. Presby,' the mens rea
has been
although the of the recognised
this case, definition
Statute,
did and
read into an American
question of evil intent. In Presby, the offence not
imply a
officer had arrested one Harford, for being found defendarnt ,
intoxicated public place.
in
Later on it was found that the persOn so arrested was not intovicate.
a
a police

statute gave power of arrest n respect of intoxicated persons only

defendant was therefore, indicted for wrongful
intoxicated, a
arrest. It was argued'tha
mere belief,
the man arrested was not however well founded,
that the man was intoxicated could not be pleaded as a defence to the
indictment. Hoar, J. after stating the general rule that there can be no
transgression of law in absence of a will to commit arn offence' disallowed
the contention and observed as follows : "Now the fact of intoxication, thoueh
usually easy to ascertain is, not in most cases a fact capable of demonstration
with absolute certainty. Suppose a watchman to find a man in the gutter
stupefied and smelling very strongly of spirituous liquors. The man may have
fallen in a fit and some person may have tried to relieve him by the
application of stimulant, and then have left in search of assistance. Or, in
another case, the person arrested may, for purposes of armusement or mischief,
have been stimulating the appearance and conduct of drunkenness. Is the
officer to be held criminal, if using his best judgment and discretion and all
the means of information in his power, in a case where he is called upon to
act, he makes a mistake of fact and comes to a wrong conclusion? It would
be singular, indeed, if a man, deficient in reason, should be protected rom
criminal responsibility, but another, who has all obliged to decide upon the
evidence before him, and used in good faith the reasons and tacultes
which he had, should be held guilty. We. therefore, feeland bound to decide tnal
probable cause of
if the defendant acted in good faith upon reasonable criminal
he is not to be reegarded as a
belief, without rashness or negligence,
because he is found to have been mistaken." Court considered
In State of Maharashtra v. M.H. Georgethe Supremne
offences. The
accused
the àpplication of the principle of mens rea in statutory
Manila in a Swiss plane.
When
found
M.H. George was a passenger from Zurich to it was
on 28th Nov., 1962 person and
the plane landed at the airport in Bombay bars on his Central
on search that the respondent carried 34 kilos of gold By reason of a was
that he had not declared it in the "Manifest" for transit. of gold intonotification
India
Government Notification of the year 1948 the bringing a India to
Reserve Bank. But byoutside
of
prohibited except with the permission transit from place for
of the Reserve Bank, gold, in through the aircraft exceptthe
fromn of
places similarly situated, which was not removedfrom the operation Nov.
the purpose of transhipment was exempted Bank of India onit was
Reserve and
notification of the Central Government. Theits earlier exemption the aircrat. The
8, 1962 by another notification modified 'Manifest' of contravention of
the
necessary that, the gold must be declared in into Indiain
respondent was prosecuted for bringing gold
1. 14 Gray 65.
2. A.I.R. 1965 S.C. 722,.
 GENERAL INTRODUCTION

section 8(1) of the Foreign Exchange Regulation Act, 1947 read with the
notifications issued thereunder and was convicted under section 23(1A) of the
Act.
The Presidency Magistrate found him guilty but
held that he was not guilty on the ground that mensthe Bombay High Court
rea being a necessary
ingredient of the offence, the respondent who brought gold into India for
transit to Manila did not know that during the crucial period such a
had been imposed which brought the case within the terms of thecondition
statute.
On appeal by the State the Supreme Court allowed the appeal and found the
accused guilty for contravention of the provisions of section 8(1) read with
Notifications issued thereunder.
The following principles were laid down by the Supreme Court in this
case :

(i) The Act is designed to safeguarding and conserving foreign

exchange which is easenttat to ecoromic life of a developing country.
The provisions have, therefore, to be stringent and so framed as to
prevent unregulated transaction which might upset the scheme
underlying the controls; and in a larger context, the penal provisions are
aimed at eliminating smuggling which is aconcomitant of controls over
the free movements of goods or currencies.
(ii) The very object and purpose of the Act and its effectiveness
as an instrument for the prevention of smuggling would be entirely
frustrated if a condition were to be read into section 8(1) or section
23(IA) of the Act qualifying the plain words of the enactment, that the
accused should be proved to have knowledge that he was contravening
the law before he could be held to have contraverned the provision.
(ii) The very concept of 'bringing' or ´sending' would exclude an
involuntary bringing or voluntary sernding. But if the bringing into India
was a Conscious act and was done with the intention of bringing it into
India, the mere "bringing" constitutes the offence and there is no other
ingredient that is necessary in order to constitute a contravention of
section 8(1) than that conscious physical act of bringing. If then under
section 8(1) the conscious physical act of "bringing" constitutes the
offence, section 23(1A) does not import any further condition for the
imposition of liability than what is provided for in section 8(1).
(i) Unless the statute either clearly or by necessary implication
rules out mens rea as a constituent part of a crime a defendant should
unless he has
not be found guilty of an offence against the criminal law
Absolute liability is not to be lightly presumed but
got a guilty mind.established.
has to be clearly
(v Section 8 and the notifications do not contain an absolute
gold. They do not
prohibition against bringing or sending into India any exclusion
expressly exclude mens rea. So far as the question of of mens
reá by implication is concerned, the law does not become nugatory if
clerment of mens rea was read into it for there would still be persons
who would be bringing into India gold with the knowledge that they
would be breaking the law. In such circumstances no question of
exclusion of mens rea by necessary implication can arise.
(vi) Mens rea in the sense of actual knowledge that act done is
 INDIAN PENAL CODE
22
essential
contrary to law is not an ingredient of the
8(1) read with section 23(IA) of the offence under section
Foreign Exchange
1947. Thus mere voluntary act of bringing
permission of the Reserv Bank constitutes the
into Regul
gold
Indiaation Act,
Nathu Lal v. State of MP, 1 is
in stock
another
885
offence.
important case on the
without
this casè the appellant had maunds and point.
2-1/4 seers of wheat In
without licence. He contended
the purposes of sale that he for
foodgrains after applying for the licence and was in the beliefhad stored the
be issued to him. He had also deposited the requisite that it would
purchasing foodgrains from time to time licence
and sending returns to fee. He was
Authority showing the grains purchased by him. He was the
committing an offence under section 7 of the Essential Lic
prosecuted
Commodities Act,
ensin g
for
for contravening an order nmade under Section 3 of the same Act. It 1955
that : "Mens rea is an essential ingredient of was held
statute may exclude the element of mens rea, criminal but it isoffence.
a soundDoubtless a
construction adopted in England and also accepted in India to rule aof
statutory provision creating an offence in
conformity with the Common construe
rather than against it unless the statute law
excluded mens rea. The mere fact that the expressly or by necessary implication
by necessary implication object of the statute
of the statute is to promote excluded mens rea, or the mere fact thatexpressly
the obiect
or
evil is by itself not decisive welfare
of the
activities or to eradicate grave Social
mind is excluded from the question whether the element of guilty
implication ingredients
may be excluded from a statute of an offence. Mens rea by
necessary
that the implementation of the only where it is absolutely clear
defeated. The nature of mens rea that object of the statute would
an offence would be implied in a otherwise be
depends on the statute
In the instant case the object of the Act and the provisions thereof.
creating
that he could legally do so.storage of foodgrains was under a
He did not, bona fide Beliet
the provisions of therefore,
Section 3 of the Act.Section of the Act or those of the order made
7 intentionally
contravene
under
Therefore
State of Gujarat v. D. he was not liable.
1950 wherein Pandey, is a case on the Bombay Public Trusts Act,
certain
violation of section trustees were prosecuted for
regulatory 35(1) of the Act. It was held misusing trust money in
provision
public regarding trust enacted with a view to safeguard that section 35(1) is a
absolute money. It the interest of the
It was offence. The : court cannotcreates a quasi criminal offence and is an
observed that read into it the requirement of mens rea.
Unless a
mens rea as a statute either
guilty of an constituent partclearly or
of the by necessary implication rules out
mind. But theoffence against the crime, a person should not bea found
immayplicatdecline
ion cantolrule criminal law unless he has got
anguageout theof a provision guilty
either plainly or by necessary
purpose
In intended draw that application of
that presumption. The court
some1. staSweet v. to be presumption
served taking into consideration the
tute, the Parsley it ofwas obbservedthatthat provision.an offence is created by
by
3. 1971 Cr. L. S.Cla. nguage
2. A.R. 1966.
43. the statute where read with this rebuttable
(1969) W.L760R. 470(S.C).
2 should be
(HL); See also
Limchin Ek v. Queen, 1963 A.C. 160.