Liability and Mens Rea

CHANAKYA NATIONAL LAW UNIVERSITY

JURISPRUDENCE JURISPRUDENCE II 2011- 2016 A PROJECT WORK ON- LIABILITY AND MENS REA

SUBMITTED TO: MR. MANORANJAN KUMAR SUBMITTED BY: ANJALI ROLL NO.: 523 th

SEMESTER: 6

LIABILITY AND MENS AND MENS REA

ACKNOWLEDGEMENT Apart from the efforts of the researcher, the success of any project depends largely on the encouragement and guidelines of many others. I take this opportunity to express my gratitude to the people who have been instrumental in the successful completion of this project. I would like to show my greatest appreciation to Mr. Manoranjan Kumar. I can‟t say thank you enough for his tremendous support and help. I feel motivated and encouraged every time I attend his lectures. Without his encouragement and guidance this project would not have materialized. The guidance and support received from all the members who contributed and who are contributing to this project, was vital for the success of the project. I am grateful for their constant support and help. I am thankful to my librarians, who provided me the books and materials required for the completion. I am grateful to all my friends, from whom I got the meticulous comments and suggestions which proved very beneficiary in the completion of this project. Finally, I am thankful to all those individuals and institutions that directly and indirectly provided me the materials which helped me to complete this project. NAME: ANJALI ROLL: 523 SEMESTER: SIXTH

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CONTENTS ACKNOWLEDGEMENT ......................................... ............................................................... ............................................. .......................................... ................... 2 CHAPTER 1: LIABILITY AND MENS REA: AN INTRODUCTION .................................. .................................. 4 CHAPTER 2: LIABILITY ............................................ .................................................................. ............................................ ...................................... ................ 5 2.1 THEORIES OF LIABILITY ............................................................. ................................................................................... .............................. ........ 5 CHAPTER 3: MENS 3: MENS REA ......................................... ............................................................... ............................................. .......................................... ...................7 CHAPTER 4: DIFFERENCE KINDS OF MENS REA .......................................... ............................................................. ...................9 4.1 INTENTION ............................................. ................................................................... ............................................ ............................................ ........................... .....9 4.2 KNOWLEDGE ............................................. ................................................................... ............................................ ........................................... .....................12 4.3 NEGLIGENTLY......... NEGLIGENTLY............................... ............................................. ............................................. ............................................. ................................ ......... 14 4.4 REASON TO BELIEVE.................................. BELIEVE........................................................ ............................................. ........................................ ................. 15 4.5 FRAUDULENTLY...... FRAUDULENTLY............................ ............................................ ............................................ ............................................ ................................ .......... 15 4.6 DISHONESTLY ........................................... ................................................................. ............................................ ........................................... .....................16 4.7 MALIGNANTLY............................................................... ..................................................................................... ........................................... .....................18 4.8 RASHNESS .......................................... ................................................................. ............................................. ............................................ ............................ ......18 4.9 WATONLY .......................................... ................................................................. ............................................. ............................................ ............................ ...... 18 CHAPTER 5: CONCLUSION .......................................... ................................................................ ............................................ ................................ .......... 20 BIBLIOGRAPHY ........................................... .................................................................. ............................................. ............................................ ............................ ...... 22


CHAPTER 1: LIABILITY AND MENS REA: AN INTRODUCTION The essence of criminal law has been said to lie in the maxim — maxim — "actus non facit reum nisi mens sit res." res." There can be no crime large or small, without an evil mind. It is therefore a principle of our legal system, s ystem, as probably it is of every other, that the essence esse nce of an offense is the wrongful intent, without which it cannot exist. This examination of the mental element or mens rea requisite for crime, will be restricted with reference to the use of the term itself in so far as it signifies the mental element necessary to convict for any crime, and only regarding crimes not based upon negligence. A possible division for such consideration is the following: 1. Requisite mens rea in. rea in. the early law. 2. Beginnings of the mens rea concept. rea concept. 3. Subsequent development of a general mens rea as rea as necessary for crime. 4. Application of the general concept to some individual crimes, 5. Application of the genera/ concept regarding some specific defenses. 6. Some general present day applications of the ter m. Liability as has been said by Salmond is the bond of necessity between the wrongdoer and the remedy for the wrongful act. If it is of civil nature then the person will provide for the redress given under the law and if it is criminal in nature then the offender will pay for the penalty under the law. Liability in the first place is either civil or criminal, and in second place either remedial or penal. In case of penal liability the purpose of the law, direct or ulterior, is or includes the punishment of a wrong-doer. In case of remedial liability, the law has no such purpose at all, its sole intent being the enforcement of the plaintiff‟s right, and the idea of punishment being wholly irrelevant. The liability of a borrower to repay the money borrowed by him is remedial, that of the publisher of a libel to be imprisoned, or to pay damages to the person

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CHAPTER 2: LIABILITY

injured by him, is penal. All criminal liability is penal; civil liability, on the other hand, is sometimes penal and sometimes remedial.1

CHAPTER 2: LIABILITY 2.1 THEORI THEORI ES OF L I ABIL I TY

The Theory of remedial liability may seem to show that whenever the law creates a duty, it should enforce the specific fulfilment of it. There are, however, several cases where, for various reasons, duties are not specifically enforced. In the first place, there are duties of imperfect obligation duties the breach of which gives no cause of action, and creates no liability at all, either civil or criminal, penal or remedial. A debt barred by the statute of limitations is a legal debt, but the payment of it cannot be compelled by any legal proceeding. Secondly, there are many duties which from their nature cannot be specifically enforced after having once been broken. When a libel has already been published, or an assault has already been committed, it is too late to compel the wrongdoer to perform his duty of refraining from such acts. Wrongs of this description may be termed transitory; once committed they belong to the irrevocable past. Others, however, are continuing; for example, the non-payment of a debt, the commission of a nuisance, or the detention of another‟s property. In such cases the duty violated is in its nature capable of specific enforcement, notwithstanding the violation of it. Thirdly, even when the specific enforcement of a duty is possible, it may be, or be deemed to be, more expedient to deal with it solely through the criminal law, or through the creation and enforcement of a substitutive sanctioning duty of pecuniary compensation. It is only in special cases, for example, that the law will compel the specific performance of a contract, instead of the payment of damages for the breach of it. 2 Theory of Penal Liability. The aim of protecting society is sought to be achieved by

deterrence, prevention and reformation. Of the three methods the first, deterrence, is usually regarded as the primary function of punishment, the others being merely secondary. Inquiry, therefore, shall be confined to punishment as deterrent. 3 The general conditions of penal liability are indicated with sufficient accuracy in the legal maxim, Actus non facit reum, reum, nisi mens sit rearea- The act alone does not amount to guilt; it 1

P.J Fitzgerald, Salmond on Jurisprudence, 12 th edition, Delhi, Universal Law Publishing Co, 2012, p.349. 2 Ibid, p.350. 3 Ibid.

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CHAPTER 2: LIABILITY

must be accompanied by a guilty mind. That is to say, there are two conditions to be fulfilled before penal responsibility can rightly be imposed. The one is the doing of some act by the person to be held liable. li able. A man is to be accounted responsible only onl y for what he himself himsel f does, not for what other persons do, or for events independent of human activity altogether. The other is the mens rea or rea or guilty mind with which the act is done. It is not enough that a man has done some acts which on account of its mischievous results the law prohibits; before the law can justly punish the act, an inquiry must be made into the mental attitude of the doer. For although the act may have been objectively wrongful, the mind and will of the doer may have been innocent. 4 Generally speaking a man is penally responsible only for those wrongful acts which he does either wilfully or recklessly. Then and only then is the actus accompanied by the mens rea5.

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P.J Fitzgerald, Salmond on Jurisprudence, 12 th edition, Delhi, Universal Law Publishing Co, 2012, p 351. Ibid.

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CHAPTER 3: MENS REA

CHAPTER 3: M ENS REA 6

Mens Rea derived from a maxim quoted by Coke in his Institute; Institute; actus non facit reum, nisi mens sit rea, rea, i.e an act does not make a person guilty unless the mind is guilty. The meaning of mens rea on rea on this maxim explains the mental element of varying standards that is held by the perpetrator. Here, in criminal law to purport a person has a guilty mind varies from the precedent cases and the mens rea can rea can be connotes as a guilty mind. This mental element had been stated by Lord Goddard in the case of Brend v Wood 7 , “…the court should not find a man guilty of an offence against the criminal law unless he has a guilty guilty mind”. These definitions in fact can be criticised and not all crimes held the same mens rea as rea as it varies in other crimes. However, like any other crime, there are other degree depends on the state of mind of perpetrator. In Commissioner of Sales Tax v. Rama and Sons, General Merchant, Ballia, the court observed mens rea rea as "The principle of mens rea rea comes from

English Criminal Law from times when the law was not codified. It was said that actus non facit reum nisi mens sit rea (the rea (the intent and act must both concur to constitute the crime). But this principle has lost much of its significance owing to greater precision of modern statutes. The nature of intent or the ingredients of offences are now clearly stated in the statutes and nothing further is required to establish as offence then what the statute specified. We have words like 'voluntarily', 'intentionally', 'negligently', 'knowingly', fraudulently', 'dishonestly', 'rashly', 'omits', 'without lawful authority' etc., 'omits', 'without lawful authority' etc., used in various sections of the Indian Penal Code defining various o ffence. Proof of the State of mind or of the conduct of the person as indicated by the aforesaid word establishes the offence and no further guilty intent or mens rea rea need be proved. In fact there are many acts which are offences and do not require proof any mens rea or rea or guilty intention, for example possession of illicit fire arm." A man is responsible, not for his acts in themselves, but for his acts coupled with the mens rea or guilty mind with which he does them. Before imposing punishment, the law must be satisfied of two things: first that an act has been done which by reason of its harmful tendencies or results is fit to be represented by way of penal discipline; and secondly that the mental attitude of the doer towards his deed was such as to render punishment effective as a 6

The concept : a blameworthy frame of mind (1946) 175 LT 306

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CHAPTER 3: MENS REA

deterrent for the future, and therefore just. The form which mens rea assumes rea assumes will depend on the provisions of the particular legal system. Criminal liability may require the wrongful act to be done intentionally or with some further wrongful purpose in mind, or it may suffice that it was done recklessly; and in each case the mental attitude of the doer is such as to make punishment effective. If he intentionally chose the wrong, penal discipline will furnish him with a sufficient motive to choose the right instead for the future. If, on the other hand, he committed the forbidden act without wrongful intent, but yet realizing the possibility of the harmful result, punishment will be effective inducement to better conduct in the future. 8 Yet there are other cases in which, for sufficient or insufficient reasons, the law is content with a lower form of mens rea. rea. This is the case, as was already noticed, with crimes of negligence. A person may be held responsible for some crimes if he did not do his best as a reasonable man to avoid the consequence in question. Sometimes, however, the law goes even beyond this; holding a man responsible for his acts, independently altogether of any wrongful state of mind or culpable negligence. Wrongs which are thus independent of fault may be distinguished as wrongs of strict liability. In respect of requirements of fault, wrongs are of three kinds (1) Intentional or reckless wrongs, in which the mens rea amounts to intention, purpose, design, or at least foresight. In such wrongs defences like mistake operate to negative the existence of mens rea. (2) Wrongs of Negligence, in which the mens rea assumes the less serious form of mere carelessness, as opposed to wrongful intent or foresight. With these wrongs defences such as mistake will only negative mens rea if the mistake itself is not negligent. (3) Wrongs of Strict Liability, in which the mens rea is not required, neither wrongful intent nor culpable negligence being recognized as a necessary condition of responsibility; and here defences like mistake are of no avail.9

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P.J Fitzgerald, Salmond on Jurisprudence, 12 th edition, Delhi, Universal Law Publishing Co, 2012, p 366. 9 Ibid, p.367.

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CHAPTER 4: DIFFERENCE KINDS OF MENS REA

CHAPTER 4: DIFFERENCE KINDS OF M ENS REA 4. 4.1 1 INTE NTI ON

From Statutory Offences Under the Indian law, the offence of murder as defined in section 300 of Indian Penal Code requires intention. The mens rea rea required in this section specifically on intention on limb (a), (b), (c) and (d). Likewise, in attempt of commit murder and culpable homicide not amount to death also require mens rea where intention is required by definition include the offence of using criminal force : s. 350, assault : s. 351, extortion : s. 383, cheating : s. 415, criminal trespass : s. 441, criminal defamation : s. 499, criminal intimidation : s. 503, causing a breach breach of peace : s 504, outraging a woman‟s modesty : s. 509, generally offences against the State under Chapter VI of Penal Code one offences of giving false evidence and offences against public justice under Chapter XI of Penal Code) Intention in Mens in Mens Rea Intention is the purpose or design with which an act is done. It is the fore-knowledge of the act, coupled with the desire of it; such fore-knowledge and desire being the cause of act, in as much as they fulfil themselves through the operation of the will. In Jurisprudence In Jurisprudence (1957), (1957), Salmond defined „intention‟ an act is intentional if, and in so far as it exists in idea before it exist s in fact, the idea realising itself in the fact because the desire by which is accompanied. In KD Kaur‟s book of Criminal Law, Law, he defines intention in the common parlance, means purpose or desire to bring about a contemplated result or foresight that certain consequences will be follow from the conduct of a person. A man is presumed to intend the necessary or the natural and probable consequences of his act; and this presumption will prevail, unless from the consideration of all the evidence, the Court entertains a reasonable doubt whether such intention existed or not. In short, a man is said to have intended the desired act. Based on the author‟s approached, intention is a desire of a person before the action will be taken and man‟s intention will result in consequence, either directly or indirect. There are types or degree of intention int ention wrote down by authors and applied from the cas es. According to Cross & Jones, there are two types of intention, direct intention and oblique intention. The

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distinction of intention was drawn by Jeremy Bentham which has two types of intention with regards to prohibited consequences; direct intention and oblique intention. ‘A consequences, where it is intentional, may be either directly so, or only obliquely. It may be so to be directly or lineally intentional, when the prospect of producing it constituted one of the links in the chain of cause which the person was determined to do the act. It may be said to be obliquely or collaterally intentional, when, although the consequence was in contemplation, and appeared likely to ensue on case of the act’s being performed, yet the prospect of pr oducing oducing such consequences did not constitute a link in the aforesaid chain’ In direct intention, the Court of Appeal had defined intention in the case of Mohan10 as „a decision to bring about, insofar as it lies within the accused power, a particular consequence, no matter whether the accused desired that consequence of his act or not‟. By adopting the definition in the case of Mohan11, the accused acts intentionally with reference to a particular consequence in the following cases: a) If he aimed at achieving a particular consequence and believed he was likely to succeed, he act intentionally with reference to it. b) If he aimed at achieving a particular consequence although he did not expect that his act would do so, he acts intentionally with reference to it. c) If he aimed at achieving a particular consequence (although he did not desire it in itself) in order to achieve an objective which he desired, he act intentionally with reference to the particular consequence. These examples showed that a man can be said to intend and decide a consequence insofar as it lies within his power to achieve of his desired objective. For oblique intention, there are two cases that a consequence is said to have been intended obliquely, first case is when the act was not aimed at but the accused foreseen as certain to result. Second, where a person foresees that a consequence will probably result from his act, although he does not aim to produce it.

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[1976] QB 1

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On case Hyam v Director of Public Prosecutions 12, the defendant, in order to frighten Mrs Booth, her rival for the affections of Mr X, put burning newspaper through the letterbox of Booth's house and caused the death of two of her children. She claimed that she had not meant to kill but had foreseen death or grievous bodily harm as a highly probable result of her actions. Ackner J directed the jury that the defendant was guilty if she knew that it was highly probable that her act would cause at least serious bodily harm. Although Lord Hailsham LC stated that he did not think that foresight of a high degree of probability is at all the same thing as intention, and it is not foresight but intention which constitutes the mental element in murder, the House of Lords (by a 3-2 majority), held that foresight on the part of the defendant that his actions were likely, or highly likely, to cause death or grievous bodily harm was sufficient mens rea for rea for murder. In the case of R v Nedrick 13 , on the fact of the case, a child had burned to death in a house where the defendant had, without warning, put a petrol bomb through the letter box. He admitted to starting the fire but stated that he only wanted to frighten the owner of the house. The Court of Appeal overturned the murder conviction and substituted a verdict of manslaughter as the judge had misdirected the jury. Lord Lane CJ provided a model direction for a jury about intent in a murder case where the defendant did a manifestly dangerous act and someone died as a result. Lord Lane CJ suggested that when determining whether the defendant had the necessary intent, it might be helpful for a jury to ask themselves two questions: (1) How probable was the consequence which resulted from the defendant's voluntary act? (2) Did he foresee that consequence? If he did not appreciate that death or serious bodily harm was likely to result from his act, he cannot have intended to bring it about. If he did, but thought that the risk to which he was exposing the person killed was only slight, then it might be easy for the jury to conclude that he did not intend to bring about the result. On the other hand, if the jury were satisfied that at the material time the defendant recognised that death or serious bodily harm would be virtually certain (barring some unforeseen intervention) to result from his voluntary act, then that is a fact from which they may find it easy to infer that he intended to kill or do serious bodily harm, even though he may not have had any desire to achieve that result.

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[1975] AC 55 (1986) 83 Cr App 267

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4. 4.2 2 KNOWL EDGE

From Statutory Offences In IPC, there are few Sections in which the word knowledge is used as mens rea. For rea. For an example, Section 299 states : “...or “...or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Besides this section, the word knowledge is also used in Section 300(d) “....know “....knowss that it is....”, Section 166 “...knowingly “... knowingly disobeys the discretion of the law....”. law....”. With such many Sections using the word knowledge, however, the Penal Code does not provide the meaning of either knowledge or knowingly. To establish that a person can be convicted of crime based on knowledge, we must first proof that the accused had the knowledge at the time he committed the crime. It is an important thing for us to firstly understan what is meant by knowledge. Knowledge in Mens in Mens Rea “Knowledge” Knowledge” can can be defined as to know a thing means to have mental cognition of it. To believe a thing is to assent to a proposition or affirmation or to accept a fact as real or certain without immediate personal knowledge. Thus knowledge and “reason to believe” are to be clearly distinguished…Thus belief is somewhat weaker than knowledge but a well grounded belief that certain consequences will follow a certain act is ordinarily as good as knowledge. Knowledge of the circumstances by virtue of which an act or omission is criminal is expressly required in the case of many statutory offences. What is said here is of equal application to those offences where a mere event is required. Knowledge of the circumstances by virtue of which an act or omission is criminal is expressly required in the case of many statutory offences on account of the inclusion of sme such word as “knowingly” “knowingly” is not the only word word which will have this effect, since sin ce it merely says expressly what is normally implied.

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Even when no appropriate word appears in the

definition,a requirement of guilty knowledge is frequently implied by the courts. In Sleep15, for example, the accused was charged with being in possesion of naval stores marked with the broad arrow, an offence under a statute of William III which has since been repealed. It

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Roper Taylor‟s Central Garages (Exeter) Ltd [1951] 2 TLR 284 per Devlin J. (1861) Le &Ca 44; see also Cugullere [1961] Cugullere [1961] 2 All ER 343

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was held that he must be acquitted as there was no proof that he knew that thestores in question were marked with the broad arrow as was in fact the case. In the opinion of the Court for Crown Cases Reserved, the fact that the accused ought, as reasonable man, to have known of the marking was immaterial. Similarly in Sweet v Parsley

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, after a different

opinion had prevailed in the lower courts, the House Of Lords held that a person could not be guilty of “being concerned in the management management of premises used for the purpose of of smoking canabis‟9 an offence which has subsequently been modified) in the absence of proof of knowledge of such use. As Lord Devlin has indicated 17, there are three degrees of knowledge known to the criminal law. The first is actual knowledge which maybe inferred from the conduct of the accused. Where a person has actual knowledge of the circumstances in which he is acting he is said to act intentionally in relation to them. Knowledge of the second degree consists of wilful blindness, where a person realise the risk that a surrounding circumstance may exist and deliberately refrains from making enquiries, the results of which he may not care to have; this is actual knowledge in the eyes of the law. Wilful blindness is a species of subjective recklessness with reference to the surrounding circumstances, and it is often called connivance18. For the avoidance of doubt, it should be mentioned that guilty knowledge extends only to circumstances as prescribed in the definition of the offence in question. Thus, a person is guilty of the offence of knowingly selling intoxicating liquor to such a person, it being irrelevant, for instance, that he thinks the person is 16 when he is in fact 17 years old. It sometimes happens that the accused has had the necessary knowledge of circumstances but has forgotten them at the time of the conduct in question. In such a case he is treated as having knowledge at the time if he then had the capacity to restore the circumstances to his mind. The standard test of knowledge as stated in Cross & Jones is that “did the person whose conduct is in issue either know of the relevant circumstances or have no substantial doubt of their existence? 16

[19790] AC 132,[1969] 1 All ER 347; C.& J . Cases. Roper Taylor‟s Central Garages (Exeter) Ltd [1951] 2 TLR 284 per Devlin J. 18 Edwards Mens Edwards Mens Rea in Rea in Statutory Offences p. 203; see also Ross v Moss [1965] 2 QB 396, [1965] 3 All ER 145 17

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4. 4.3 3 NEGL I GENTL Y

From Statutory Offence In India Penal Code, Section 304A state about causing death by negligence “Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” There are other sections that include the word negligence which are Section 286 and 287. Negligently in Mens in Mens Rea Negligence is i s inadvertence to the possibility of the consequence occurring. It should be noted that the above definition of negligence requires that if the accused had stopped to think about the consequences of his actions “he would have had the consciousness”. Applying this to the fact of Elliot v C (A Minor)(1983), if the girl had stopped to consider the consequence of her actions she would still not, because of her retardation , have had the necessary “ If anything is done without any advertence to the consequent event or result, the mental state in such situation signifies negligence. The event may be harmless or harmful, if harmful the question arises whether there is legal liability for it. In civil law (common law) it is decided by considering whether or not a reasonable man in the same circumstances would have realized the prospect of harm and would have stopped or changed his course so as to avoid it. If a reasonable man would not, then there is no liability and the harm must lie where it falls. The word word „negligence‟, therefore, is used to denote blameworthy inadvertence. It should be recognized that at common law there is no criminal liability for harm thus caused by inadvertence. Strictly speaking, negligence may not be a form of mens rea. rea. It is more in the nature of a legal fault. However, it is made punishable for a utilitarian purpose of hoping to improve people‟s standards of behaviour. Criminal liability for negligence is exceptional at common law; manslaughter appears to be the only common law crime, which may result from negligence. Crimes of negligence may be created by statute, and a statute may provide that it is a defence to charges brought under its provisions for the accused to prove that he was not negligent. Conversely, negligence with regard to some subsidiary element in the actus reus of reus of a crime may deprive the accused of a statutory defence which would otherwise have been available to him.

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Advertent negligence is commonly termed as wilful negligence or recklessness. In other words, inadvertent negligence may be distinguished as simple. In the former the harm done is foreseen as possible or probable but it is not willed. In the latter it is neither foreseen nor willed. In each case carelessness, to say indifference as to the consequences, is present but in the former this indifference does not, while in the latter it does prevent these consequences from being foreseen. The physician who treats a patient improperly through ignorance or forgetfulness is guilty of simple or inadvertent negligence; but if he does the same in order to save himself trouble, or by way of a scientific experiment with full recognition of the danger so incurred, his negligence is wilful. It may be important to state here that the wilful wrong doer is liable because he desires to do the harm; the negligent wrong doer is liable because he does not sufficiently desire to avoid it. He who will excuse himself on the ground that he meant no evil is still open to the reply: - perhaps you did not, but at all event you might have avoided it if you had sufficiently sufficientl y desire to do so and you are held liable not because you desired the mischief, but because you were careless and indifferent whether it ensured or not. It is on this ground that negligence is treated as a form of mens rea, rea, standing side by side with wrongful intention as a formal ground of responsibility. 4. 4.4 4 REASO REASON N TO BE LI EVE

From Statutory Offences Section Section 26 of the Penal Code states, “A person is said to have “reason to believe” a thing, if he has sufficient cause to believe beli eve that thing, but not otherwise.” Reason to Believe in Mens in Mens Rea

'Reason to believe' involves a lesser degree of conviction than certainty and a higher one than speculation. The matters which contribute towards a person having reason to believe something are not those which a court would require as proof of that thing, since 'reason to believe' is not itself a standard proof, as opposed to that which must be discharged by the prosecution in persuading the court of the the existence of such reason. 4. 4.5 5 F RAUDULENTL Y

From Statutory Offences In Penal Code S.25 defines “Fraudulently”:“Fraudulently”:-

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“A person is said to do a thing fraudulently if he does that thing with intend to defraud but not otherwise.” There are many terms of “Fraudulently” on the sections in Penal Code such as Section 206, 207, 208, 210, 242, 242, 247, 253, 261, 262, 263, 263, 264, 265, and 463. There are also sections that juxtaposition the term of “fraudulently” and “dishonestly” in section 209, 246, 247, 464, 471, 474, 477, 496 of Penal Code. Fraudulently in Mens in Mens Rea There are differences between fraudulently and dishonestly as what had been stated in the statute and in the case of Vilma, Dr v Delhi Administration19 , Dr Vilma purchased a car in his minor daughter‟s name and got the insurance policy transferred in her name. The car met an accident the appellant filed two claims against the insurance company and his daughter sign it and have the receipts acknowledging the payment and compensation. The appellant was prosecuted under section 467 of Indian Penal Code on insurance company‟s complaint that the appellant alleged in fraud. The court interprets within the definition of section 463 and 464 under false document and forgery; both descriptions had the same meaning of mens rea i.e. “fraudulently” and “intention to commit fraud”. Secondly had been noticed two adverbs „dishonestly‟ and „fraudulently‟ in section 464 are used alternatively indicating thereby that one excludes the other. The Indian Penal Code defines them under secti on 24 and 25 respectively. The word „defraud‟ includes an element of deceit which is an important ingredient of the definition of the word “fraudulent” but for the definition of “dishonestly” illustrated as wrongful gain or wrongful loss. Only either one arises of the issue and not both. If the expression “fraudulently” were to be held involved in this case, the element of injury to the deceived party, it would be reasonable to assume the injury should be something more than pecuniary or economic loss.

4. 4.6 6 DI SH ONESTL Y

From Statutory Offences In Penal Code S.24 defines “Dishonestly”:“Dishonestly”: -

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A.I.R 1963 S.C 1572

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“Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person perso n is said to do that thing „dishonestly‟. There are many terms of “Dishonestly” on the sections in Penal Code such as Section 209, 415, 247, 378, 383, 403, 404, 405, 411, 420, 421,461, 464, 471, 474, 477 and 496. Fraudulently in Mens in Mens Rea The crime may require the absence of a particular kind of intention, knowledge or belief. In a crime of dishonesty such as theft and obtaining by b y deception require absence of honest intent. A person who has intentionally taken money from another may defend himself against charged of theft by saying that he took it in order to recoup a debt owed by him. His intention to obtain payment of the debt can be regarded as an honest intention which removes the criminality of his intentional taking of the money. In theft, dishonesty requires the intention to cause wrongful gain or wrongful loss. This intention to make dishonest exist at the time of moving the property in Sec. 378 in illustration (h)20 and (i)21. Another example is that there is no dishonesty when A pick up his friend‟s friend‟s book which was carelessly left at the restaurant, intending to return it after he has read it. On the other hand, if A form an dishonest intention not to return it he may liable for criminal misappropriation of property. It is wrongful to take property by knowing the property belongs to another person or, if the property belongs to him, he knows the other person has a right to retention22. If a person took lost property, there may be criminal misappropriation but there is no dishonesty intention 23. In criminal misappropriation, mens rea by means of dishonesty, there are three general points must be taken, firstly, even if the exclusion of the rightful owner form his property is sufficient to constitute “misappropriation”, and is regard as causing “wrongful loss” to him under terms of section 23, such conduct only be criminal if it can be proved that the accused had intended to cause wrongful gain or wrongful loss. Secondly, it will be more

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A had committed theft with intention to take the ring and to sell it by hiding from Z‟s view so that when it loss is forgotten 21 A delivers his watch to Z, a jeweller, to be regulated. A not owing any debt from Z for which the jeweler might lawfully detain the watch as security, enters the shop openly and took the watch from Z‟s hand with force. What A did not commit to theft and wa s not done dishonest although A committed criminal trespass and assault. 22 Illustration (f) and (j) of section 378 of Penal Code 23 Illustration (g) of section 378 of Penal Code

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difficult to draw an inference of dishonesty where there has been misappropriation in the sense of retention. Thirdly, the last point about dishonestly in the context of criminal misappropriation concerns temporary appropriations. Mens rea for rea for dishonest appear in appear in the cases of misappropriation, conversion and use of disposal in violation of law or contract by the entrusted person himself. In context of Criminal breach of Trust, a series of cases has shown that negligence or a failure to account for entrusted property does not, without more, constituted dishonestly. 4. 4.7 7 M AL I GNANTLY

From Statutory Offence Section 270 of Penal Code state that whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment for a term which may extend to two years or with fine or with both.. In India Penal Code, Section 304A provide that “Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

4.8 RASH NE SS

From Statutory Offence This word can be seen se en in sections 279, 280, 284,, 285, 286, 287, 336 337, and 304. Rashness in Mens in Mens Rea “Rashness” also not given its meaning by the Penal Code. The question of whether an accused person has committed a rash act will be determined by looking to what precautions to be taken by a reasonable person in that circumstance. 24 In determining whether an act is an act done with intent or in haste, judgments are made on the consequences of the act. If the result is likely to occur is low, then the act is usually said to be done with intent. 4. 4.9 9 WATONL Y

From Statutory Offence

24

Subba Rao S V (1953) Hyd 95.

18

LIABILITY AND MENS AND MENS REA In our Penal Code, Section 153 has the word wantonly appearing. Watonly in Mens in Mens Rea “Wantonly”, “…means the doing of a thing recklessly or thoughtlessly, without regard for consequences. It implies a disposition not evil, but reckless or mischievous. A man may do anything “wantonly”, when he has no reason to do it; but he does it because he takes pleasure in doing it, though he knows that its consequences to others may be serious.

19


CHAPTER 5: CONCLUSION

CHAPTER 5: CONCLUSION Liability as has been said by Salmond is the bond of necessi ty between the wrongdoer and the remedy for the wrongful act. If it is of civil nature then the person will provide for the redress given under the law and if it is criminal in nature then the offender will pay for the penalty under the law. To prove penal liability, presence of two things are important, that is actus reus and reus and mens rea that is a guilty act and a guilty mind. Both ingredients are essential to prove penal liability. Mens Rea is of various forms, however its categorization on the basis of types of wrongs gives three different requirements of mens rea. Firstly is the case of intentional wrong where mens rea is in the form of intention or design. Secondly, is the case of wrong of negligence where mens rea of a lesser form is taken into consideration such as carelessness as opposed to wrongful intent or foresight. Thirdly is the case of wrong of strict liability where mens rea isn‟t taken into consideration at all. Intention is the purpose or design with which an act is done. The intention can be specific or generic. It is found that in Common law generic intent is followed so that even if a person does an act against someone he did not intend to instead of the person against whom he intended to then the person does not go scott free but is liable for the offence in the same way as he would have been otherwise. Same is the case with Indian criminal law which relies heavily on Common law. Specific intent nowhere applies in the provisions of the Indian Penal Code and generic intent is what is followed. The perfect example of this can be seen under Section 301 of the Code. From the above discussion we see that the conditions of penal liability are sufficiently indicated by the maxim Actus maxim Actus non facit rea nisi mens sit rea. A rea. A man is responsible not for his acts in themselves but for his acts coupled with the mens rea or rea or guilty mind with which he does them. Before imposing punishment, the law must be satisfied of two things: first, that an act has been done which by reasons of its harmful tendencies or results is fit to be repressed by way of penal discipline; and secondly, that the mental attitude of doer towards his deed was such as to render punishment effective as a deterrent for the future, and therefore, just. The form which mens rea assumes will depend on the provisions of the particular legal system. Criminal liability may require the wrongful act to be done intentionally or with some further wrongful purpose in mind, or it may suffice that it was done recklessly; and in each case the mental attitude of the doer is such as to make punishment effective. If tit

20

CHAPTER 5: CONCLUSION


intentionally chose the wrong, penal discipline will furnish him with a sufficient motive to choose the right instead of the future. If, on the other hand, he committed the forbidden act without wrongful intention, but yet realizing the possibility of the harmful result, punishment will

be

an

effective

inducement

to

better

conduct

in

the

future.

Yet there are other cases in which, for sufficient or insufficient reasons, the law is content with a lower form of menss rea. This is the case, as was already noticed, with crimes of negligence.25 A person may be held responsible for some crimes if he did not do his best as a reasonable man to avoid the consequence in question. Sometimes, however the law goes even beyond this; holding a man responsible for his acts, independently altogether of any wrongful state of mind or culpable negligence. Wrongs which are thus independent of fault may be distinguished as wrongs of strict of strict liability.

25

Sir John Salmond regarded inadvertent negligence as a form of mens rea, although inadvertent negligence does not require any particular state of mind; and this is surely reasonable, since negligent offences defer sharply from offences not requiring mens rea, rea, i.e. offences of strict liability, which make no allowance for the fact that the accused may have had no fair chance of conforming to the law‟s requirements; offences of negligence penalise those who ought to have and could have conformed and were therefore at fault.

21

BIBLIOGRAPHY


BIBLIOGRAPHY BOOKS:-

1. Fitzgerald P.J, “Salmond on Jurisprudence” Jurisprudence ”, 12th edition, Delhi, Universal Law Publishing Co, 2012. 2. Dr Veena Madhav Tomapi, “Textbook on Jurisprudence”, Jurisprudence”, Universal Law Publishing, 2010. 3. Dr Mahajan V.D, “Jurisprudence & Legal Theory” Theory ”, 5th edition, Delhi, Eastern Book Company, 2008. 4. Pound Roscoe, “Juriprudence”, “Juriprudence”, Vol 5, The Lawbook Exchange, Ltd., 1959. 5. Dr Paranjape N.V, “Studies in Jurisprudence and Legal Theory” Theory ”, 6th edition, Allahabad, Central Law Agency, 2013.

WEBSITES:

onlinelibrary.wiley.com/doi/10.1111/j.1468-2230.1938.tb00388.x/pdf



http://onlinelibrary.wiley.com/doi/10.1111/j.1468-2230.1938.tb00388.x/pdf



http://www.legalserviceindia.com/articles/torts_s.htm



http://www.austlii.edu.au/au/journals/ResJud/1938/76.pdf

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Liability and Mens Rea

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