mens rea

CHANAKYA NATIONAL LAW UNIVERSITY

MALICE & WILFULNESS IN STATUTORY OFFENCES

SUBMITTED TO: - Mr. Manoranjan Jha FACULTY: - Criminal Law I

Made By: Nidhi Navneet nd

rd

2 year (3 sem) ROLL No.570 B.A.LL.B. (Hons)

Malice & Wilfulness in Statutory Offences

ACKNOWLEDGEMENT I am feeling highly elated to t o work on the

case law

“

Malice &

Wilfulness in Statutory Offences ” under the guidance of my Criminal Law teacher. I

am very grateful to him for his exemplary guidance. I would like to enlighten my readers regarding this topic and and I hope I have tried my best to pave the way for bringing more luminosity to this topic.

I also want to thank all of my friends, without whose cooperation this project was not possible. Apart from all these, I want to give special s pecial thanks to the librarian of my university who made every relevant materials regarding to my topic available to me at the time of my busy research work and gave me assistance. And at last I am very much obliged to the God who w ho provided me the potential for the rigorous research work.

At finally yet importantly importantl y I would like li ke to t o thank my parents for the financial support.

----------Thanking you Nidhi Navneet C.N.L.U.

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Introduction ...................................................................................... 3 The Common Law Principle ............................................................ 5 Common Law ............................................................................. 5 Mens Rea Under Common Law ................................................. 6 Importance of Mens Rea ............................................................ 7 Limitation in common law principle ................................................ 9 Mens Rea in Indian Penal Code .................................................9 Intention while Drafting ........................................................... 10 STATUTORY OFFENCES : an exception.................................... 12 Presumption Under Statutory Offences ................................... 13 Presumption not used in Statutory Offences – an exception ... 16 Presumption used in Statutory Offences – an exception to the exception...................................................................................18 Liability under a Statute ........................................................... 20 CONCLUSION .............................................................................. 21 BIBLIOGRAPHY .......................................................................... 23

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In the field of law, it is important to understand each and every cause of each and every act. Only then a sound judgement can be given in a case. One of the most important things to consider with regard to any offence is the mens rea or the blameworthy condition of mind. This element of c rime (mens rea) has been in the picture almost ever since criminal law has known to be exist. It had been incorporated in definitions of crimes through the use of words like “intend” or “knowledge”. In general terms, Malice which means wrong intention or evil intention is also a kind of mens rea and Wilfulness which means a deliberate act which shows the intention of doing the act on part of the doer is also a kind of mens rea. In legal language, "Malice" – A person acts with "malice" if he intentionally or recklessly causes the social harm prohibited by the offense; and,

"Wilfully" – "Wilful" has been held in different jurisdictions to be

synonymous with other terms, e.g., "intentional," "an act done with a bad purpose," "an evil motive," or "a purpose to disobey the law." Offences have been classified in many ways. But, for this study, the relevant classification of offences would be into offences malum in se and offences malum prohibitum. Offences that are malum in se are the ones that are inherently wrong or evil, like murder, rape, etc.. The society at large recognizes them as wrong. They have developed as offences over the years and through decisions of the court. Hence, these are also called Common Law offences as they are developed through precedents. On the other hand, offences that are malum prohibitum are the acts that are wrong because they are prohibited by statutes. For example, offences created by Road Traffic Rules are not inherently wrong but, since they are the rules that have to be followed on the road, their violation would lead to penalty. Travelling in a car on the right side of the road is not inherently wrong but, it is an offence as the law does not allow it. It is these kinds of offences that are referred to as Statutory Offences. They are the ones that are created by statutes which require strict interpretation. Generally, the question that arises in cases is that whether mens rea is present or absent in the offender. But, sometimes, the question is whether it is required or not. This happens in case of statutory offences.

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Malice & Wilfulness in Statutory Offences Statutory offences are the offences which are created by different statutes and generally doesn‟t comes under the guidelines for offences related to the codes. The statutes like those related with taxation, national security, public welfare, whose mere omission or commission of acts becomes punishable. In other words, no mens rea or legal fault is required for criminal liability. I n the large number of modern statutes many have been interpreted by the courts as using language which, in prescribing punishment for the specified deeds (each of which is thus an actus reus), has excluded any requirement of mens rea at all. Where this is so, the question whether the accused may have committed the deed intentionally, recklessly, negligently or by mistake, is irrelevant so far as his liability to conviction is concerned. Such a crime is often and suitably termed a crime of strict liability or of absolute liability. 1 This evolves as an exception to the common law principle of each and every crime. Thus, it has become a question before the court of law whether to except the general principle in all the cases or to apply the exception in all where the offences are socio-legal in nature and are against the public welfare. The current research study critically analyses this situation and takes into account the existing views and decisions on the issue with the help of relevant case laws.

1

Taken from RUSSELL ON CRIME by J .W. Cecil Turner, 12 th edition, Universal publication, pg no. 62.

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THE COMMON LAW PRINCIPLE Common Law The word common law is used in many different contexts. The word common law is used in the present context to describe the body of legal principles and concepts which were evolved over many centuries by judges in the English courts of law. The common law was influential in molding both the area of and restrictions on freedom in England and those parts of the world which have the common law tradition as their legal foundation. The common law is the product of long evolved social values which are judicially articulated and interpreted. "Its roots strike deep into the soil of national ideas and institutions". One of the greatest virtues of the common law system is to be found in its capacity to balance the individual interests in liberty with the common concerns and interests of the community. In the modern era, there is a growing belief that the solutions to these problems can be sought by deliberate and calculated reform of the law through legislation. Reforms are formulated by law reform agencies and by political and bureaucratic authorities through processes of abstract rationalization or imperfect empirical investigation, sometimes based on Marxist and neo-socialist ideological assumptions. The evolved law is thereby fractured and reshaped with unpredictable consequences. Another consequence of this method is that it tends to remove questions of public morality from the community itself. It results in the imposition of restrictions on liberty which is inadequately founded on public perceptions. Imperfect rationalism and empiricism are poor substitutes for the accumulated experience of the community, enshrined in the common law. The common law experience reflects the wisdom and even the follies of our civilization. However, it represents an evolved public morality which is the soundest basis for the formulation of legal precepts (subject to comments below relating to modernisation and legislation). 2

2

Excerpt from Article on Common Law and Statute by Doctor Mark Cooray.

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Malice & Wilfulness in Statutory Offences Our system of criminal law is not, as is the case in some countries, contained in a single code promulgated by a legislative body. It is, on the contrary, a conglomerate mass of rules based upon the ancient common law of England as modified and extended by the authoritative decisions of the judges in the long passage of history, and vastly enlarged by the addition of statutory enactments made by parliament from time to time, to meet the needs of the moment.

Mens Rea Under Common Law Under common law, it appeared as the ethical conception that it was not proper to punish a man criminally unless he had known that he was doing wrong. Attention was thus more strongly directed to the mental element in crime, and the moral notion gradually crystallized into a rule of law. It happened that long before this period St Augustine had said: Ream linguam non facit nisi mens rea. This remark, slightly altered, eventually appeared in the Leges Henrici Primi as a test of guilt in the crime of perjury, and ultimately it was further refined and used by Coke to express it as Et actus non facit reum nisi mens sit rea in which there is a clear distinction between a man‟s „deed‟ (actus) and his mental processes (mens) at the time when he was engaged in the activity which resulted in the deed. This means that the conduct which resulted in the deed was inspired and actuated by his mens rea, because in the usual case he intends to produce that result and regulates his conduct in order to produce it. 3 Mens rea, or "guilty" intent, deals with what the defendant needs to have been thinking at the time he or she committed the actus reus for criminal liability to attach. In order to be guilty of most crimes, the defendant must have had the mens rea required for the crime he was committing at the time he committed the criminal act. As with the actus reus, there is no single mens rea that is required for all crimes. Rather, it will be different for each specific crime. Thus it can be said that mens rea is one of the principles of the common law that a crime is not committed if the mind of the person doing the act in question be innocent. It is said that actus non facit reum nisi mens sit rea (the intent and act must both concur to constitute the crime). Although prima facie and as a general rule there must be 3

Taken from Kenny‟s „Outlines of Criminal law‟ by J W Cecil Turner , pg no.13, 19 th ed., Universal Publication.

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Malice & Wilfulness in Statutory Offences a mind at fault before there can be a 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. 4

Importance of Mens Rea Mens Rea is a technical term. It means some blameworthy condition of the mind, the absence of which on any particular occasion negatives the condition of crime. It is one of the essential ingredients of criminal liability. A criminal offences is said to have been committed only when an act, which is regarded as an offence in law, is done voluntarily. Hence, an act becomes criminal only when done with a guilty mind. Before a criminal is made liable, he should be proven to have some blameworthy mental condition (mens rea). For example, when someone attacks you, then, causing injury to him in private defence is not a crime but, causing injury with the intention of revenge is a crime. This is how the presence of a guilty mind changes the nature of the offence. But, the requirement of a guilty mind varies from crime to crime. An intention which would qualify as the required mens rea for one crime, may not for some other crime. In case of murder, it is the intent to cause death; in case of theft, it is the intention to steal; in case of rape, it is the intention to have sexual intercourse with a woman without her consent, etc.. Hence, although mens rea is a sine qua non of a criminal act, its type and degree may vary from crime to crime. The importance of mens rea can be established by common law judgements which appeared in many cases. For example, in an appeal 5 against conviction and sentence for murder in Baustoland which came before the judicial committee of the privy Council6, it appeared that the appellants had plotted together to murder a man and to dispose of his body so that his death should be thought due to an accident. They invited him to a hut at night where they plied him with beer, after which they beat him with an intent to kill. Thinking him to be dead, they carried the body out and rolled it over the cliff to make it appear as accident. Medical evidence, accepted the fact that the death was

4

Excerpt taken from Ratanlal and Dhirajlal‟s The Indian Penal Code by Justice Y.V. Chandrachud & V.R. Manohar, 33rd Edition Reprint 2012, Lexis Nexis Butterworths Publication. 5 Meli and others v. R. [1954] 1 W .L.R. 228; 1 All E.R. 373. 6 Lord Goddard, C.J., Lord Reid and Mr L.M.D. de Silva.

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Malice & Wilfulness in Statutory Offences not due to the beating nor due to rolling down the cliff, but because of exposure to the cold. The appellants were held guilty of culpable homicide and not of murder as their conduct fell in two parts; 1st, the attack in the hut and 2 nd the subsequent placing of body outside. Of these the first part was actuated by mens rea but this activity didn‟t caused the death and therefore there was no actus reus of murder 7. On the other hand once they believed the man to be dead their intention to kill had ceased and their activity was now prompted merely by their desire to evade detection, and therefore their conduct in leaving the body in open was not actuated by malice, afterthought, so that the resulting death by freezing could not make them gulty of murder. 8 In an Indian case in 1890 9 the Court of Appeal by a majority, in absence of mens rea for the final cause of death quashed the conviction of murder. Khandu, with intent to kill, had beaten his victim on the head, then, believing him to be dead, had set fire to the hutin which he was lying in order to remove all evidence of crime. But medical evidence showed that the blows did not caused the death, which was in fact caused by burning. The court therefore quashed the conviction of murder. Again, in the African case of R. v. Shorty 10 it was held that there was a felling of the deceased with intent to kill by the accused who then went on to place the body in a sewer; the death however was not due to the blow struck but to drowning. The court held that „the immersion in the sewer was a new, intervening act, and it was not immediately connected with the assault‟, adding, „we do not feel that at this stage there was any intention to kill, because there was a genuine, if inadequately founded, belief that the accused was dead‟;11 accordingly Shorty was convicted only of attempt to murder. 12 Thus, it can be said that to decide whether the person is liable with the punishment of an offence, the person or say, accused, must have along with the actus reus of that offence, the particular mens rea for that offence too.

7

Acc. to English law they were clearly guilty of attempt to murder, but there is no mention of this in report. Taken from Kenny‟s „Outlines of Criminal law‟ by J W Cecil Turner , pg no.14, 19 th ed., Universal Publication. 9 R. v. Khandu (1890) I.L.R. 15 Bom., 194. 10 1950 S.R. 280. 11 Per Tredgold, J. 12 Supra 6, pg no. 15. 8

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LIMITATION IN COMMON LAW PRINCIPLE Mens Rea in Indian Penal Code The Indian Penal Code 1860 sets out the definition of offences, the general conditions of liability, the conditions of exemptions from liability and punishments for the respective offences. Lord Macaulay and his colleagues have not used the common law doctrine of mens rea in defining these crimes. However, they preferred to import it by using different terms indicating the required evil intent or mens rea as an essence of a particular offence. Guilt in respect of almost all the offences created under the IPC is fastened either on the ground of Intention or knowledge or reason to believe. 13 Almost all the offences under the IPC are qualified by one or the other words such as „wrongful gain or wrongful loss‟, „dishonestly‟, „fraudulently‟, „reason to believe‟, „criminal knowledge or intention‟, voluntarily‟, „maliciously‟, etc.. Thus, it can be said that the essence of the common law principle is present in IPC but that principle is not incorporated completely in it. So, for interpretations of the provisions of IPC, the common law principle would not be used and, else, the definition provided by the code will be of utmost importance. 14 Under Indian Penal code, every offence is defined. The full definition of every crime contains expressly or by implication a proposition as to the state of mind. Thus, it completely depends on the way the offence is defined by the drafters to constitute whether that offence requires mens rea or not to be an offence. It, therefore, appears that the maxim actus non facit reum nisi mens sit rea has not so wide an application as it is sometimes considered to have. It has undergone a modification owing to the greater precision of the modern statutes. It is impossible to apply it generally to all statutes and the substance of all the reported cases is that it is necessary to look at the object of each Act that is under consideration to see whether and how far knowledge is the essence of the offence created.

13

For details see Shamshul Huda, „The Principles of Law of Crimes in British India‟, Tagore Law Lectures, 1902, Eastern Book Co., Lucknow, Reprint 1993, ch 5 & ch 6. 14 Taken from PSA Pillai‟s Criminal Law by K I Vibhute, 10 th ed., Lexis Nexis Butterworths Wadhwa publication, Pg 57.

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Malice & Wilfulness in Statutory Offences The maxim actus non facit reum nisi mens sit rea has, however, no application to the offences under the Penal Code in its purely technical sense because the definitions of various offences contain expressly propositions as to the state of mind of the accused. If, in any case, the Indian Legislature has omitted to prescribe a particular mental condition, the presumption is that the omission is intentional. In such a case the doctrine of mens rea is not applicable. But Sherras v. De Rutzen 15 seems very like an emphatic re-assretion of the doctrine that mens rea is an essential ingredient of every offence except in three case: (1) cases not criminal in any real sense but which in the public interest are prohibited under a penalty, e.g. Revenue Acts; (2) public nuisance; (3) cases criminal in form but which are really only a summary mode of enforcing a civil right. Only limited and exceptional class of offences can be committed without a guilty mind. The court should always bear in mind that unless the statute, either clearly or by necessary implication, rules out mens rea as a constituent part of crime, an accused should not be found guilty of an offence under the criminal law unless he has got a guilty mind.

Intention while Drafting Element of Mens Rea is incorporated in most of the offences of IPC but there are some provisions where no element can be found. There, it is presumed that mens rea is intentionally omitted and thus for commission of that offence, no mens rea is required; means only the commission of offence is necessary and there is no need to prove the mens rea. The burden of proving mens rea or the guilty intention of the accused lies on the complainant. Most of the times, it so happens that proving the commission of an offence becomes a difficult task and upon that to prove the intention which is not visible from the outset, would be a herculean task for the complainant. In such cases or situations, the person guilty of the offence would get free which will be against the principles of law. Thus to prevent such condition, the accused is punished for commission of offence only and it is presumed by the court itself that he is carrying the blameworthy condition of mind, which is rebuttable. This kind of situation mainly arises in the cases which deals with socio-welfare legislations which are also called statutory offences.

15

[1895] 1 QB 918.

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Malice & Wilfulness in Statutory Offences Under IPC also, there are provisions which specially deals with welfare of society like theprovision related with dowry death 16. There are certain sections in the Indian Penal Code also, in which there no element of mens rea is mentioned and it can be inferred that the drafters intentionally left mens rea from those provisions as to provide some relief to the prosecution from the extensive burden of proving the act and also proving the intention lying behind that act. For example, Sec 292 of the code, which talks about Sale, etc., of obscene books, etc., and provides the punishment only commission of the act. It is immaterial whether there was any intention or not.

16

Sec. 304 (B) of Indian Penal Code, 1860.

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STATUTORY OFFENCES : AN EXCEPTION An offence is basically a violation of law. In legal parlance, the word “offence” is generally construed as a criminal wrong. Hence, offence means a wrong in penal law. The Code of Criminal Procedure, 1973 defines “offence” as “any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle-trespass Act, 1871( 1 of 1871)”. This is a guideline for offences rela ted to the Code. But, there are other types of offences too; the ones that are created by different statutes, like those related to taxation, national security, etc.. These are commonly referred to as Statutory Offences. Offences have been classified in many ways. But, for this study, the relevant classification of offences would be into offences malum i n se and offences malum prohibitum . Offences that are malum in se are the ones that are inherently wrong or evil,

like murder, rape, etc.. The society at large recognizes them as wrong. They have developed as offences over the years and through decisions of the court. Hence, these are also called Common Law offences as they are developed through precedents. On the other hand, offences that are malum prohibitum are the acts that are wrong because they are prohibited by statutes. For example, offences created by Road Traffic Rules are not inherently wrong but, since they are the rules that have to be followed on the road, their violation would lead to penalty. Travelling in a car on the right side of the road is not inherently wrong but, it is an offence as the law does not allow it. It is these kinds of offences that are referred to as Statutory Offences. They are the ones that are created by statutes which require strict interpretation.17 Statutory Offences are needed because, it is not only the crimes in the Indian Penal Code, 1860 that can harm the society but, another very important class of crimes (White Collar Crimes) also poses a big threat on the society. Numerous scams have been unveiled in the past 20 years. From Harshad Mehta to 2G scam, all have contributed towards harming the society. In fact, in 1962, the Government of India under Lal Bahadur

17

Excerpt taken from http://legalservicesindia.com/article/article/mens-rea-in-statutory-offences-8311.html.

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Malice & Wilfulness in Statutory Offences Shastri (the then Home Minister) set up a Committee (Santhanam Committee) on Prevention of Corruption, which proposed certain socio-economic offences to be made a part of the Indian Penal Code, 1860 as a new Chapter. But, unfortunately this did not happen.18 Statutory offences appears as an exception to the concept of general offences. It appears as a limitation to the common law principle actus non facit reum nisi mens sit rea i.e., every offence requires mens rea. For a person to be proved guilty of any statutory offence, there is no need to prove that the person was having the requisite mens rea as it is presumed beforehand that mens rea was present there whereas to prove general offences, mens rea is needed to be proved.

Presumption Under Statutory Offences In statutory interpretation, certain presumptions are taken into account by the court while interpreting the statutes. The presumption relevant here is that a criminal act in general requires the presence of mens rea. Almost all crimes that exist independently of any statute require, for their commission, some blameworthy state of mind on the part of the actor. Where a statute creates an offence, no matter how comprehensive and absolute the language of the statute is, it is usually understood to be silently requiring that the element of mens rea be imported into the definition of the crime (offence) so defined, unless a contrary intention is express or implied. Hence, the plain words of a statute are read subject to a presumption (of arguable weight), which may be rebutted, that the general rule of law that no crime can be committed unless there is mens rea has not been ousted by the particular enactment.19 In the case of Brend v. Wood 20, Lord Goddard, C.J. held that: “It is of the utmost importance for the protection of the liberty of the subject that a court should always bear in mind that, unless a statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind.” 18

Report of the Committee on the Prevention of Corruption (1964), p 53 . Freidmann, Law in a Changing Society, 2nd Edition, p 202. 20 (1946)175 L.T. 306. 19

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Malice & Wilfulness in Statutory Offences Today, the kinds of offences are multiplied by various regulations and orders to such an extent that it is difficult for most of the law abiding subjects to avoid offending against the law at all times. Some law, out of so many, could be violated by chance without a guilty intention at some point of time. In these circumstances, it seems to be more important than ever to adhere to this principle. But, there is more to it. In the past, it also seemed that the importance of this presumption of mens rea was declining in importance.21 In Hobbs v. Winchester Corporation22, Kennedy, L.J. said that “there is a clear balance of authority that in construing a modern statute, this presumption as to mens rea does not exist.” This can particularly hold well if Roscoe Pound‟s definition of statutory offences is considered. He said that “such statutes are not meant to punish the vicious will but to put pressure on the thoughtless and inefficient to do their whole duty in the interest of public health or safety or morals.” 23 The world of today is one of machines. There is widespread industrialization and rampant growth thereof. Everywhere, there are high-powered machines. Very often, these machines are dangerous and may pose a health hazard to the worker employed. The Bhopal Gas Tragedy24 showed the world that compromising on safety standards is the first thing that industries do to cut costs. In respect of hazardous industry, the threat may not be just to the workers of the factory as in Bhopal but, also to persons residing in and around that area. In the said Tragedy, in 1984, there was a major gas leak of MIC gas from the Union Carbide factory in Bhopal. Thousands died and many are sti ll suffering as a result thereof. Hence, it is in the interest of the larger good that there are laws which lay down standards and regulate the functioning of the industries, prevent, food adulteration, corruption, etc., and that these laws are strictly applicable, i.e., they are strictly construed without requiring mens rea in commission of the offences they create. For example, The Factories Act 1948, stipulates the machinery should be adequately fenced, minimum facilities are available to labours; The Minimum Wages Act 1936; The Essential Commodities Act; etc.25

21

Glanville Williams, Textbook of Criminal Law, 2nd Edition, Stevens & Sons, 1983, p 30. [1910] 2 KB 471 23 Dean Roscoe Pound, The Spirit of the Common Law, p. 52 24 Excerpt taken from http://www.slideshare.net/praftek/bhopal-gas-tragedy. 25 Excerpt taken fr om PSA Pillai‟s Criminal Law by K I Vibhute, 10 th edn, Lexis Nexis Butterworths Publication, pg no. 69. 22

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Malice & Wilfulness in Statutory Offences But, since the view against the presumption of mens rea cannot be applied universally in every case, after Hobbs‟ Case 26, as years passed, the courts again seemed to be favouring the use of the presumption. But, later on, Lord Evershed analyzed the situation critically in a few of his judgments, one of the most important of which is that in the case of Reynolds v. G.H. Austin & Sons Ltd. 27. In this case, Lord Evershed said that :“Where the subject matter of the statute is the regulation for the public welfare of a particular activity – statutes regulating the sale of food and drink are to be found among the earliest examples – it can be and frequently has been inferred that the legislature intended that such activities should be carried out under conditions of strict liability. The presumption is that the statute or statutory instrument can be effectively enforced only if those in charge of the relevant activities are made responsible for seeing that they are complied with. When such a presumption is to be inferred, it displaces the ordinary presumption of mens rea. But, it is not enough merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended. It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. That means that there must be something he can do, directly or indirectly, which will promote the observance of the regulations. Unless this is so, there is no reason in penalizing him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim.” Lord Evershed also said that two conditions must be satisfied if the presumption as to mens rea is to be rebutted; first, that strict liability must be required to give practical effect to the legislative intention; and, secondly, the person charged with a breach of the statutory requirements must have had some opportunity of furthering their observance. So, if the presumption as to mens rea is a general rule, then presumption against mens rea in statutory offences would be an exception to the rule. In such a case, the presumption of mens rea in statutory offences would in turn be an exception to that exception.

26

Supra note 20. [1951] 2 K.B. 135

27

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Presumption not used in Statutory Offences exception

–

an

This situation is one in which a statutory offence is committed and the presumption requiring mens rea is not used to decide the case. There have been many such cases in English as well as Indian courts. One of the early ones is R. v. St. Margarets Trust Ltd 28. In this case, a contravention had occurred of Article 1 of the Hire-Purchase and Credit Sale Agreements (Control) Order, 1956. The article provided that a person should not dispose of any goods to which the Order applied in pursuance of a hire purchase agreement unless the requirements specified in Schedule 2 of the Order were satisfied, the requirement being that 50% of the cash price should be paid before the agreement was signed. But, the said contravention was held to be an offence even though the act was innocently done. The words of the order were “an express and unqualified prohibition”. Its object was to help to defend the currency against the peril of inflation which, if unchecked, would bring disaster upon the country. Donovan, J. said that:“The present generation has witnessed the collapse of the currency in other countries and the consequent chaos, misery and widespread ruin. It would not be at all surprising if Parliament, determined to prevent similar calamities here, enacted measures which it intended to be absolute prohibitions of acts which might increase the risk of however small a degree. There would be a little point in enacting that no one should breach the defences against a flood, and at the same time excusing anyone who did it innocently.” Another important case in this respect would be that of Lockyer v. Gibbs29. In this case, the Divisional Court held that being “in possession of a drug” contrary to Regulation 9 of the Dangerous Drugs (No. 2) Regulations, 1964 is an absolute offence. Although it must be proved that the accused knew that he had the article which turned out to be a drug, it need not be shown that he knew what the article was. Lord Parker, C.J. said that the regulation was a public welfare provision. If one considered the mischief aimed at alone, there was every reason for treating a provision such as this as a provision imposing absolute liability.

28

[1958] 1 W.L.R. 522 [1967] 2 Q.B. 243

29

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Malice & Wilfulness in Statutory Offences There have been important landmark cases on this in India as well. A fine example was the case of State of Maharashtra v. M.H. George 30. In this case, the respondent left Zurich on November 27, 1962, and landed at Santa Cruz Airport. He did not get out of the plane, and infact, on being searched, was found to have been carrying Gold slabs. Till November 24th, there was a general permission for a person to bring or send Gold into India if it was on through transit. But, after 24th November, a condition was imposed. When the respondent had boarded the plane at Zurich, he could not have known of the condition. He was prosecuted for having violated Section 8(1) of the Foreign Exchange Regulation Act, 1947, and the question was whether mens rea of the respondent-accused could be established. The majority held that:“On the question whether mens rea – in the sense of actual knowledge that the act done by the accused was contrary to the law – is requisite in respect of a contravention of Section 8(1) starting with an initial presumption in favor of the need for mens rea, we have to ascertain whether the presumption is overborne by the language of the enactment, read in the light of the objects and purposes of the Act, and particularly whether the enforcement of the law and the attainment of its purpose would not be rendered futile in the event of such an ingredient being considered necessary. Where the statute does not contain the word „knowingly‟, the first thing to do is to examine the statute to see whether the ordinary presumption that mens rea is required applies or not. When one turns to Section 8(1) in the present context, one reaches the conclusion that there is no scope for the invocation of the rule of mens rea. It lays an absolute embargo upon persons who, without satisfying the condition bring or send into India any Gold, the absoluteness being emphasized by Section 24(1) of the Act, which throws on the accused the burden of proving that he had the requisite permission. In our opinion, 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) 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 contravened the provision.”

30

AIR 1965 SC 722

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Malice & Wilfulness in Statutory Offences Another very important case in relating to this exception to the rule of mens rea is that of Ranjit D. Udeshi v. State of Maharashtra 31. In this case, even a provision of Indian Penal Code, 1860 was held to be not requiring mens rea. The Supreme Court had held that:“We do not accept the argument that the prosecution must prove that the person who sells or keeps for sale any obscene object knows that it is obscene before he can be adjudged guilty. The first sub-section of Section 292 of IPC does not make knowledge of obscenity an ingredient of the offence. The prosecution need not prove something which the law does not burden it with. If knowledge were made a part of the guilty act (actus reus), and required the prosecution to prove it, it would place an almost impenetrable defence in the hands of offenders. It is argued that the number of books these days is so large and their contents so varied that the question whether there is mens rea or not must be based on definite knowledge of the existence of obscenity. We can only interpret the law as we find it and if any exception is to be made, it is for Parliament to enact a law. As we have pointed out, the difficulty, of obtaining legal evidence of the offender‟s knowledge of the obscenity of the book, etc. has made the liability strict. Under our law, absence of such knowledge may be taken in mitigation but, it does not take the case out of the sub- section.” These were some important examples where the exception to the presumption requiring mens rea has been applied. In these cases, punishment was given for statutory offences, without mens rea on the part of the accused. This generally does happen in such offences, due to them being linked with public welfare and national interest. But, in certain other cases, the element of mens rea is somehow or the other incorporated into the definition of the statutory offences, thereby helping out the accused.

Presumption used in Statutory Offences – an exception to the exception In spite of the rule being developed that the presumption requiring mens rea will not be used in cases of Statutory Offences, there have been situations where it has

31

AIR 1965 SC 881

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Malice & Wilfulness in Statutory Offences been used. One of the best and earliest examples of this is the case of Sherras v. De Rutzen32. In this case, the defendant was convicted of selling alcohol to a police officer while on duty under Section 16(2) of Licensing Act 1872. It was customary for police officers to wear an armlet while on duty but this constable had removed his. The appellant therefore believed that he was off duty. The statute was silent as to the question of whether knowledge was required for the offence. The appellant was convicted and appealed contending that knowledge that the officer was on duty was a requirement of the offence. The appeal was allowed and his conviction was quashed after the court applied the presumption requiring mens rea in this Statutory Offence. Wright, J . held that:“There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals. It is plain that if guilty knowledge is not necessary, no care on the part of the publication could save him from a conviction under Section 16(2), since it would be as easy for the constable to deny that he was on duty when asked, or to produce a forged permission from his superior officer, as to remove his armlet before entering the public house. I am, therefore, of opinion that this conviction ought to be quashed.” Then came the landmark case of Lim Chin Aik v. R33. Here, Lord Evershed held that the accused could not be guilty of entering and remaining in Singapore contrary to an order, prohibiting him from doing so and made under the Singapore Immigration Ordinance of 1959, when that order had not been brought to his attention. Imposing absolute liability on a prohibited person would not have ensured observance of the order since he could not have complied with it if he did not know of it and no practicable means was provided by the Ordinance which would ascertain that he had become a prohibited person. In another case, i.e., R v. Curr 34, the facts were that under Section 9(b) of the Family Allowances Act, 1965 (which replaced Section 9(b) of the Family Allowances Act, 1945), it is an offence to obtain or receive “any sum as on account of an allowance, either as in the defendant‟s own right or as on behalf of another, knowing that

32

[1895] 1 Q.B. 918 [1963] A.C. 160 34 1967] 2 Q.B. 944 33

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Malice & Wilfulness in Statutory Offences it was not properly payable, or not properly receivable by him or her ”. It was held that a trafficker in family allowances, who was making 800% interest a year on his dealings, and who had a number of women agents, could not be convicted of soliciting, or conspiring with them to commit an offence under Section 9(b) unless it was proved that the agents knew that the allowances were not properly receivable by them. The Crown argued that an agent must be taken to know the law and hence, that an allowance was not properly receivable by her. But, the court replied that the offence created by the statute was not an absolute one, that there might be circumstances in which receipt of another person‟s allowance would be lawful, and that knowledge of the wrongfulness of the transaction must therefore be proved. Hence, it can be seen that even though a rule of not using the presumption in Statutory Offences has developed, the presumption is still used when the courts feel fit or necessary for it to be used, in order to maintain justice.

Liability under a Statute It is within the power of the legislature to make a certain illegal act or omission penal and fix an absolute liability upon any person, if, a breach of a certain enactment is made. Once absolute liability is fixed, then a particular intent or state of mind is not the essence of the offence. In such cases, acts or defaults of a servant or agent in the ordinary course of his employment may make the master or principal criminally liable, although, he was not aware of the acts or defaults and even when they are against his orders.35 However, such liability may be specifically imposedby the terms of the statute or at least the fact of implied liability must be sufficiently discernible from the provisions of the statutes. In fact, Strict Liability clauses in statutes might result in the agents being made liable for the acts of the master. In Sarjoo Prasad v. State of Uttar Pradesh36 and in State of Orissa v. K. Rajeshwar Rao 37 , the appellant, who was an employee, was convivted under the Prevention of Food Adulteration Act 1954 for the act of the master in selling adulterated food items. 38

35

th

Hari Singh Gaur, The Penal law of India, vol 1, 11 edn, Law Publishers, Allahabad, 1998, p145. 36 AIR 1961 SC 631. 37 AIR 1992 SC 240. 38 Supra note 25, pg no. 74.

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It is a common law principle that to constitute any crime its essential ingredients i.e. actus reus and mens rea must be present in it but with advances in technology and of changing socio-legal scenario, various statutory offences have been enacted. These statutory offences appear as an exception to the general offences as in these there is no need to prove the presence of mens rea to constitute an offence. The provisions in the statutes contain no element of mens rea and on this basis it is presumed that there is no need to prove it. But curiously, the legislatures have taken the easy way out. In most of the public welfare statutes, nowhere is it stated that mens rea is not an essential element of the offence concerned. Nor is it stated that mens rea is an essential ingredient of the crime. This silence has left the field wide open for judicial interpretation. So, the creation of judge made law has not been without its share of confusions and contradictions. To conclude, it can be said that the rules in courts regarding where and how to use the presumption requiring mens rea have been developing since quite a long time. In fact, courts have formed their own rules regarding application of the presumption in normal cases, statutory offences, and even on when not to use the presumption in statutory offences. But, still, at times, conflicts of thoughts do occur on whether to apply it or not. In such a situation, it would be pretty appropriate to cite a judgment of the Supreme Court regarding the implied exclusion of mens rea in Section 7 of the Essential Commodities Act, 1955, in the case of Nathulal v. State of Madhya Pradesh 39. The court had said that:“Mens rea is an essential ingredient of a criminal offence unless the statute expressly or by necessary implication excludes it. The mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil is by itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of an offence. Mens rea by necessary implication

39

AIR 1966 SC 43

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Malice & Wilfulness in Statutory Offences may be excluded from a statute only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated.” Also, in determining whether a statutory provision does or does not create an offence of strict liability, the following considerations seem to be relevant, as given in the judgment of ( M. H. George‟s case):

Phraseology of the statutory provision creating an offence of strict liability, particularly expressions indicating or excluding the mental element required.

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Object of the Statute

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Nature of public purpose purportedly preserved by the statute

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Nature of the mischief at which the provision or statute is aimed, and whether the imposition of strict liability will tend to suppress the mischief, although strict liability should not be inferred simply because the offence is described as a grave social evil. Hence, in spite of the developed rules regarding the application of the

presumption, it still depends on the facts of the case as well as the type of statutory offence whether the presumption will be applied or not, and the courts will still keep developing new rules to decide the same.

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Sites Referred 

http://legalservicesindia.com/article/article/mens-rea-in-statutory-offences-8311.html.

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www.legalarticle.com/Article-on-Common-Law-and-Statute/Doctor-MarkCooray-56774-3.html.

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http://www.slideshare.net/praftek/bhopal-gas-tragedy.

Books Referred 

Turner, J.W. Cecil, „Russell on crime‟, 2001, 12th edn., Universal Publication.



Chandrachud, Y.V., Justice & V.R. Manohar, Justice, „Ratanlal and Dhirajlal‟s The Indian Penal Code‟, 33rd Edn., Reprint 2012, Lexis Nexis Butterworths Publication.



Vibhute, K. I., „PSA Pillai‟s Criminal Law‟, 10 th edn., Lexis Nexis Butterworths Wadhwa Publication.

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Pillai, K. N. C., „Essays on the Indian Penal Code‟, R evised edn., Ihe Indian Law Institute, Universal Publication.

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Turner, J.W. Cecil, „Kenny‟s Outlines of Criminal Law‟, 19th edn., Universal Publication.

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Ormerod, David, „Smith & Hogan‟s Criminal Law‟, 13th edn., Oxford Publication.

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