Concept of CRIME

• Salmond – “ Law is a ‘rule of action’ regulating the conduct of individuals in society”.

• Conducts which are prohibited by the law in force at a given time and place are known as wrongful acts / crime.
• Early concept of crime:
• Only crimes against State and religion treated as crimes
• Punishments were based on divine judgements
• Change in the civilization, culture and advancement of scientific knowledge brought changes in the concept

• Definition of Crime :
• Many writers defined as an anti-social, immoral / sinful behavior
• But legally crime is any form of conduct which is declared to be socially harmful in a State & as such forbidden by law under pain
of some punishments
• Kenny – Crimes are wrongs whose sanction is punitive and is in no way remissible by any private person, but is remissible by any
private person, but is remissible by the crown alone, if remissible at all.
• Blackstone – Crime is an act committed / omitted in violation of public law either forbidding / commanding it.
• Sutherland – Crime as a symptom of social disorganization.
• Halsbury – Crime is an unlawful act which is an offence against the public & the preparator of that act is liable to legal
punishment.
 Classification of Crimes

• Legal crimes : traditional crimes such as theft, robbery, dacoity, rape etc.
• Political offence
• Economic Offence : White Collar crimes
• Social crimes : Child marriage restraint, Sati, SC –ST crimes
• Other crimes : Crimes under Special Acts – cyber crimes, consumer
protection Acts
 Characteristics of crime

• External consequences
• The harm must be specifically outlawed
• An act / actus reus
• Mens rea / guilty mind
• Prohibited act
• Punishment
• Relation between voluntary misconduct ( act / omission) and the resulting harm
 Criminal Jurisprudence

• No society without crimes

• Criminal law is essential in a society for maintaining law & order
• Efficacy of criminal justice system and protection of rights people are
interrelated
• When rule of law collapses, it is replaced by Matsya Nyaya ( Law of jungle)
• Criminal law is concerned with the right to life & personal freedom and
restrictions placed on those rights
• Ultimate goal of Criminal law is crime free society
 Basic principles of traditional criminal justice system

• Liberty is essence of human life but unrestricted freedom will result in conflict of interests &
creates chaos.
• Arbitrary limitations on liberty are not tolerated.
• Due process of law guards the individual against such arbitrariness
• ‘Due’ – what is just & proper?
• In the field of criminal law, the ‘due process’ model is grounded on the idea of confrontation
between an individual and State whose interest are irreconcilable.
• Stress of criminal law is on –
• Truth determination
• Protection of innocent
• Individual’s right encroachment by the State
 Procedural criminal law facilitates course of justice – Basic
principles
1. Doctrine of nellum crimen sine lege (no act / omission is crime unless statute prohibits it)
- ಶಾಸನವು ಅದನ್ನು ನಿಷೇಧಿಸದ ಹೊರತು
​ ಯಾವುದೇ ಕ್ರಿಯೆ / ಲೋಪ ಅಪರಾಧವಲ್ಲ
2. Doctrine of nulla poena sine lege ( Doctrine of strict construction)
ಕಟ್ಟು ನಿಟ್ಟಾದ ನಿರ್ಮಾಣದ ಸಿದ್ಧಾಂತ /ಶಬ್ದ ಗಳ್ ಸರಿಯಾದ್ ಅರ್ಥ ತಿಳಿದು ಕೊಳ್ಳು ವ ಸಿದ್ಧಾಂತ
3. Doctrine of et actus not facit resum nisi mens sit rea ( Mens rea & actus reus both must
concur to constitute crime) - ಅಪರಾಧಿಕ ಮನಸ್ಸು ಮತ್ತು ಕೃತ್ಯ ಇವೆರಡು ಸೇರಿ ಅಪರಾಧ ಆಗುತ್ತೆ
4. Doctrine of praesmptiones juris sed non de jure ( Accused is presumed to be innocent
until his guilt is proved) -
ಆತನ ಅಪರಾಧ ಸಾಬೀತಾಗುವವರೆಗೂ ಆರೋಪಿಯು ನಿರಪರಾಧಿ ಎಂದು ಭಾವಿಸಲಾಗುತ್ತದೆ
5. Doctrine of nemo tenebatur prodere seipsum (Rights against self in incrimination)
ದೋಷಾರೋಪಣೆಯಲ್ಲಿ ಸ್ವ ಯಂ ವಿರುದ್ಧ ದ ಹಕ್ಕು ಗಳು
 New kinds of socio-economic offences : ಶ್ವೇತ ಕೊರಳಿನ ಅಪರಾಧಗಳು /
• Conventional criminal v. modern criminals
• Developed technology resulted into economic crisis ex. Harshad Mehta scam, Ketan Parekh, Indian Bank scam
• Only scams involving heavy money come to prosecution whereas small one goes unnoticed ex. Forgery of kisan vikas
patra, NSC, Cyberspace case of UTI stocks
• Following are the new kinds of crimes:
1. Crimes in the areas of business, trade & commerce
2. Bank & financial frauds – Mitra Committee Criminal jurisprudence in the country based on ‘proof beyond doubt is
too weak instrument, to control bank fraud. Recommended for punitive approach by defining ‘seams’ as serious
offence, with Special Courts & separate procedure
3. Technology related crime – E-commerce resulted into cyber crime
4. Money laundering – breeds terrorism, organized crime, Hawala transactions and evasion of tax
5. Insurance crimes
6. Computer crimes
7. Terrorism
8. Money launder – the concealment of the origins of illegally obtained money typically by means of transfers
involving forign banks / legitimate business.
 Difficulty in prosecuting WCC offences under
Ordinary criminal law

• Modus Operendi differ – like terrorist use fake IDs / SIM cards / Email hence
tracing criminal becomes difficult
• UK established serious Fraud Office under the Criminal Justice Act, 1987 for
investigation & prosecution of serious economic offences
• Collection of evidence becomes difficult
• Hence in this atmosphere the criminal jurisprudence has itself undergone
change to tackle these challenging new crimes by amending its
conventional principles
 New criminal jurisprudence
• Effects of socio-economic offences :
• 1. gravity of the harm caused to society
• 2. nature of crimes

• Hence a legislation applicable to such offences, as a matter of policy departs from

legislation applicable to ordinary crimes in respect of traditional requirements as to
mens rea, procedure etc.
• These types of offences may be called as Public Welfare Offences / Regulatory
offences
• Hence legislation controlling these crimes be furnished with weapons which are not
necessary for fighting ordinary crimes
• Hence traditional principles of criminal jurisprudence like mens rea, burden of proof
and mode of proof, sentencing practices need to be revised
• Many special laws are legislated for this reason
 1. Presumption of mens rea
• Criminal laws are so construed as no man i.e. innocent / free from wrong, be by a literal construction
punished.
• But legislation can create an offence of strict liability where mens rea is dispensed with.
• Strict liability is the act for which a man is responsible irrespective of the existence of either wrongful
intent / negligence.
• Arguments supporting strict liability –
1. Protection of social interest requires a high standard of care & attention on the part of those who
follow certain pursuit
2. Such persons are more likely to be stimulated to maintain those standards if they know that ignorance /
mistake will not excuse them
3. It relieves the prosecution of the difficult task of proving mens rea & improves administrative efficiency.

• Strict liability is the product of modern legislative policy & not of traditional morality i.e. it is a matter of
malum prohibition(quasi criminal offence) rather than malum in se (wrongs of ethics)
• In strict liability cases, burden of proof is on accused, no doubt a chance is given as to fair trial.
 2. Presumption of commission of offence
• The effect of a presumption is that a party in whose favor a fact is presumed, is relieved of the initial
burden of proof.
• Presumption are the result of human experience & reason as applied to the course of nature & the ordinary
flow of life ex. Adultery.
• Presumptions are based on the general experience / probability of any kind / merely on policy /
convenience.
• Presumption of law and Presumption of facts
• It is difficult for authority to find / discover the evidence against the act of accused because it might happen
behind closed door and people who are closer to accused may not depose, hence accused are set free.
• There are certain provisions in law which presume that deed is committed by the accused unless contrary
is proved, hence burden of proof shifts on accused.
• Many of special laws contain direct provision as to presumptions
• Accused have to prove his innocence beyond doubt.
 3. Provision of adverse inferences on exercise of right of silence

• Right to silence of accused coupled with the burden of proof on the prosecution to
prove guilt of accused

• Prosecution authorized to question accused during trial & that does not amount to
ill-treatment still accused has privilege to remain silent in that case adverse
inference is made out.

• This provision need improvement.

Special powers & procedures for effective investigation
• Confiscations
• Search & Siezure
• Shifting of burden of proof
• Special rules of evidence
• Under Customs Act, 1962where the authorities have seized the goods on the
reasonable belief that they are smuggled goods, the burden of proof is on the
person to prove that hey are not smuggled goods
• Under Sec 14 of the Essential Commodities Act, 1955 where a person has been
prosecuted for doing act without licence / permit, the burden of proving that
he has such license / permit shall be on such person.
 5. Confession

• Confessions is highest order of evidence. No innocent man can be supposed

ordinarily to be willing to risk life, liberty / property by a false confession.
• Recently enacted legislations have made provisions for admissibility of voluntary
confession made by the accused before higher authority like TADA, Prevention of
Terrorism Act
• This provision helped the authority to secure more information from accused &
lessens their burden of proof. Ex. Maharashtra Control of Organised Crimes Act,
1999, Sec 18 make confession before police as admissible evidence.
 6. Bail provision are strictly regulated

• Most of the accused abuse the conditions of bail

• Legislations dealing with heinous crimes put stringent conditions to get bail
and even refuse to grant anticipatory bail
• The burden of proof in this cases is also on accused
 7. Extension of detention period

• 24 hours custody before production of accused is a rule

• Maximum 15 days police custody
• Investigation to be completed upto 60 days / 90 days
• But organized crimes, terrorist acts require more time because of its nature
and involvement of more people and place which is extended in special
legislations.
 8. Special authorities and procedure

• Speedier trial and stringent procedures through Special laws

• Socio-economic offences, organized crimes & terrorism crimes are too complex and technical
• They need special knowledge on the part of investigating authorities
• In case of food adulteration, evasion of income tax and other taxes, investigating authority must have
the special skill, knowledge & experience of about that subject and transactions. Generally every
enactment of Socio-economic offences makes the provision of special enforcement authority
• For speedy trial these cases are tried by different proceedings like, offences are are cognizable, non-
bailable, summery trial, finality of the tribunal decision and restricting right to make appeal.
• Further trial of the accused is given priority under the special law than the trial under other laws
 9. Minimum mandatory punishment

• Object of punishment
• Macaulay in IPC provided with maximum penalty which be decided by
judges with guidelines & exercise his discretion
• But for socio-economic offences, practices of inflicting minimum
punishment developed to assure needed deterrent punishment
• In cases of minimum punishment prescribed by a Statute, the Court is left
no discretion except to impose minimum sentence. Ex. Sec 3 & 6 of Dowry
Prohibition Act, Anti-Corruption laws etc.
 Conclusion
• The National Crime Record Bureau of Home Affairs of India revealed the data for the year 2010 in
which the Courts have tried 44,35,733 cases of socio-economic offences, out of which 40,70,071
resulted in conviction and out of 11,41,091 conventional crimes 3,65,662 resulted into conviction.
The conviction rate is 91.8% and acquittal rate is mere 8.2%. Whereas in conventional crimes,
conviction rate is 40.7% and acquittal rate is 51.3%. This leads to the inference that adoption of
new criminal jurisprudence is working satisfactorily compared to the situation of earlier period.
• Justice V.S.Malimath Report on Reforms of Criminal Justice system submitted to CG in March
2003 emphasizes a change in the criminal jurisprudence. Following are recommendations –
1. Adversarial system should be suitably modified with some good and useful feature of the
Inquisitorial system.
2. Draw adverse inference against the accused on his silence / refusal to answer the question put
to him.
3. Summery proceedings should be made applicable to more categories of criminal cases. The
quantum of fine imposed I the provisions of punishments should be suitable amended to
enhance by more than 50 times.