A Project Project Report on ‘Application of Mens rea under IPC: Interpretation of Supreme Court in past decade. CRIMINAL CRIM INAL LAW-I LAW-I
Sumitted !:Aadit!a "asu #$%&$$% S'M'S('R & rd )AM*)ARAM SAN+I"A,,A NA(I*NAL LAW NI"'RSI(, "ISA/APA(NAM
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ACN*WL')0'M'N( Writing a project is one of the most significant academic challenges I have ever faced. Though this project has been presented by me but there are many people who remained in veil, who gave their all support and helped me to complete this project. First of all I am very grateful to my subject teacher Dr. Nandini urthy !" a#am, without the $ind support of whom and help the completion of the project was a herculean tas$ for me. %he donated her valuable time from her busy schedule to help me to complete this project and suggested me from where and how to collect data. I am very than$ful to the librarian who provided me several boo$s on this topic which proved beneficial in completing this project. I ac$nowledge my friends who gave their valuable and meticulous advice which was very useful and could not be ignored in writing the project. I also owe special than$s to my parents for their selfless help which was very useful in preparing the project & without whose support this project wouldn#t have been prepared.
'aditya (asu )*+**+ rd %emester
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Inde1 +. Table of !ases-------------------------* ). Introduction--------------------------*/ . !ommon 0aw "rinciple---------------------.*1 . ens rea under !ommon 0aw------------------...*2 /. Importance of ens rea---------------------.*3 1. ens rea under Indian "enal !ode-----------------+* 2. Intention while Drafting---------------------+) 3. Interpretation by Indian !ourts------------------..+ 4. ens rea5 Is it re6uired in all cases7..................................................................+1 +*. !onclusion--------------------------.+3 ++. 8ibliography-------------------------..+4
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(ale of Cases 'dditional !ommissioner, Income Ta: v. Durga "andari Nath Tulijayya & co. ;"g no +3< !ommissioner of %ales Ta: v. =ama and %ons. ; "g no +2< Deepa and >rs v. %.I. of "olice. ; "g no +1<
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Director of ?nforcement v. !T !orp "vt 0td. ;"g no +< @ujarat Travancore 'gency v. !ommissioner Income Ta:, Aerala. ;"g no +1< Indo !hina %team Navigation !o 0td v. Basjit %ingh. ;"g no +/< 0al 8ehari v. %t of ". ; "g no +2< Nathulal v. %t of " ; "g no +< = v. Daviault. ; "g no +/< = v. Ahandu. ;"g no 4< = v. eli and >rs ;"g no 4< = v. %horty. ;"g no 4< =avule Cariprasad rao v. The %tate ;"g no +/< =egina v. %t. argarets ;"g no +/< %t. of C v. C. @eorge. ;"g no +/< %herras v. De =uten. ;"g no ++,+/<
Introduction In the field of law, it is important to understand each and every cause of each and every act. >nly then a sound judgment can be given in a case. >ne 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 crime ;mens rea< has been in the picture almost ever since criminal law has $nown to be e:ist. It had been incorporated in definitions of crimes through the use of words li$e Eintend or E$nowledge. In general terms, alice which means wrong intention or evil intention is also a $ind of mens rea and Willfulness which means a deliberate act which shows
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the intention of doing the act on part of the doer is also a $ind of mens rea. In legal language, GaliceG H ' person acts with GmaliceG if he intentionally or rec$lessly causes the social harm prohibited by the offense and, GWillfullyG H GWillfulG has been held in different jurisdictions to be synonymous with other terms, e.g., Gintentional,G Gan act done with a bad purpose,G Gan evil motive,G or Ga purpose to disobey the law.G >ffences have been classified in many ways. 8ut, for this study, the relevant classification of offences would be into offences malum in se and offences malum prohibitum. >ffences that are malum in se are the ones that are inherently wrong or evil, li$e murder, rape, etc.. The society at large recognies them as wrong. They have developed as offences over the years and through decisions of the court. Cence, these are also called !ommon 0aw offences as they are developed through precedents. >n the oth9er hand, offences that are malum prohibitum are the acts that are wrong because they are prohibited by statutes. For e:ample, offences created by =oad Traffic =ules 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 $inds of offences that are referred to as %tatutory >ffences. They are the ones that are created by statutes which re6uire strict interpretation. @enerally, the 6uestion that arises in cases is that whether mens rea is present or absent in the offender. 8ut, sometimes, the 6uestion is whether it is re6uired or not. This happens in case of statutory offences. %tatutory offences are the offences which are created by different statutes and generally doesn#t comes under the guidelines for offences related to the codes. The statutes li$e those related with ta:ation, national security, public welfare, whose mere omission or commission of acts becomes punishable. In other words, no mens rea or legal fault is re6uired 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 e:cluded any re6uirement of mens rea at all. Where this is so, the 6uestion whether the accused may have committed the deed intentionally, rec$lessly, negligently or by mista$e, is irrelevant so far as his liability to conviction is concerned. %uch a crime is often and suitably termed a crime of strict liability or of absolute liability.+ 1 Ta$en from =J%%?00 >N !=I? by B.W. !ecil Turner, +) th edition, Jniversal publication, pg no. 1).
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This evolves as an e:ception to the common law principle of each and every crime. Thus, it has become a 6uestion before the court of law whether to e:cept the general principle in all the cases or to apply the e:ception in all where the offences are socioKlegal in nature and are against the public welfare. The current research study critically analyses this situation and ta$es into account the e:isting views and decisions on the issue with the help of relevant case laws.
Common La2 Principle Common La2 The word common law is used in many different conte:ts. The word common law is used in the present conte:t to describe the body of legal principles and concepts which were evolved over many centuries by judges in the ?nglish courts of law. The common law was influential in molding both the area of and restrictions on freedom in ?ngland 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. GIts roots stri$e deep into the soil of national ideas and institutionsG. >ne 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. =eforms are formulated by law reform agencies and by political and bureaucratic authorities through processes of abstract rationaliation or imperfect empirical investigation, sometimes based on ar:ist and neoKsocialist ideological assumptions. The evolved law is thereby fractured and reshaped with unpredictable conse6uences. 'nother conse6uence of this method is that it tends to remove 6uestions of public morality from the community itself. It results in the imposition of restrictions on liberty which is inade6uately founded on public perceptions. Imperfect rationalism and empiricism are poor substitutes for the accumulated e:perience of the community, enshrined in the common law. The common law e:perience reflects the wisdom and even the follies of our civiliation. Cowever, it
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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<.) >ur 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 ?ngland as modified and e:tended 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 La2 Jnder common law, it appeared as the ethical conception that it was not proper to punish a man criminally unless he had $nown that he was doing wrong. 'ttention was thus more strongly directed to the mental element in crime, and the moral notion gradually crystallied into a rule of law. It happened that long before this period %t 'ugustine had said5 Ream linguam non facit nisi mens rea. This remar$, 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 !o$e to e:press it as Et actus non facit reum nisi mens sit rea in which there is a clear distinction between a man#s Ldeed# ;actus< and his mental processes ;mens< at the time when he was engaged in the activity which resulted in the deed. This means that the conduct which resulted in the deed was inspired and actuated by his mens rea, because in the usual case he intends to produce that result and regulates his conduct in order to produce it. ens rea, or GguiltyG intent, deals with what the defendant needs to have been thin$ing 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 re6uired for the crime he was committing at the time he committed the criminal act. 's with the actus reus, there is no single mens rea that is re6uired for all crimes. =ather, it will be different for each specific crime.
2 ?:cerpt from 'rticle on !ommon 0aw and %tatute by Doctor ar$ !ooray. 3 Ta$en from Aenny#s L>utlines of !riminal law# by J W Cecil Turner , pg no.+, +4 th ed., Jniversal "ublication.
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Thus it can be said that mens rea is one of the principles of the common law that a crime is not committed if the mind of the person doing the act in 6uestion be innocent. It is said that actus non facit reum nisi mens sit rea ;the intent and act must both concur to constitute the crime<. 'lthough prima facie and as a general rule there must be a mind at fault before there can be a crime, it is not an infle:ible rule and a statute may relate to such a subject matter and may be so framed as to ma$e an act criminal whether there has been any intention to brea$ the law or otherwise to do wrong or not.
Importance of Mens rea ens =ea 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. ' criminal offences is said to have been committed only when an act, which is regarded as an offence in law, is done voluntarily. Cence, an act becomes criminal only when done with a guilty mind. 8efore a criminal is made liable, he should be proven to have some blameworthy mental condition ;mens rea<. For e:ample, when someone attac$s you, then, causing injury to him in private defense is not a crime but, causing injury with the intention of revenge is a crime. This is how the presence of a guilty mind changes the nature of the offence. 8ut, the re6uirement of a guilty mind varies from crime to crime. 'n intention which would 6ualify as the re6uired mens rea for one crime, may not for some other crime. In case of murder, it is the intent to cause death in case of theft, it is the intention to steal in case of rape, it is the intention to have se:ual intercourse with a woman without her consent, etc. Cence, although mens rea is a sine 6ua non of a criminal act, its type and degree may vary from crime to crime. The importance of mens rea can be established by common law judgments which appeared in many cases. For e:ample, in an appeal/ against conviction and sentence for murder
4 ?:cerpt ta$en from =atanlal and Dhirajlal#s The Indian "enal !ode by Bustice M.(. !handrachud & (.=. anohar, rd ?dition =eprint )*+), 0e:is Ne:is 8utterworths "ublication.
5 eli and others v. =. +4/O + W.0.=. ))3 + 'll ?.=. 2.
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in 8austoland which came before the judicial committee of the "rivy !ouncil1, 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 $ill. Thin$ing him to be dead, they carried the body out and rolled it over the cliff to ma$e it appear as accident. edical evidence, accepted the fact that the death was not due to the beating nor due to rolling down the cliff, but because of e:posure to the cold. The appellants were held guilty of culpable homicide and not of murder as their conduct fell in two parts +st, the attac$ in the hut and )nd the subse6uent placing of body outside. >f 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 2. >n the other hand once they believed the man to be dead their intention to $ill had ceased and their activity was now prompted merely by their desire to evade detection, and therefore their conduct in leaving the body in open was not actuated by malice, afterthought, so that the resulting death by freeing could not ma$e them gulty of murder .3 In an Indian case in +34*4 the !ourt of 'ppeal by a majority, in absence of mens rea for the final cause of death 6uashed the conviction of murder. Ahandu, with intent to $ill, had beaten his victim on the head, then, believing him to be dead, had set fire to the hut in which he was lying in order to remove all evidence of crime. 8ut medical evidence showed that the blows did not caused the death, which was in fact caused by burning. The court therefore 6uashed the conviction of murder. 'gain, in the 'frican case of R. v. Shorty1 it was held that there was a felling of the deceased with intent to $ill by the accused who then went on to place the body in a sewer the death however was not due to the blow struc$ but to drowning. The court held that Lthe immersion in the sewer was a new, intervening act, and it was not immediately connected with the assault#, adding, Lwe do not feel that at this stage there was any 6 0ord @oddard, !.B., 0ord =eid and r 0..D. de %ilva. 7 'cc. to ?nglish law they were clearly guilty of attempt to murder, but there is no mention of this in report.
8 Ta$en from Aenny#s L>utlines of !riminal law# by J W Cecil Turner , pg no.+, +4 th ed., Jniversal "ublication.
9 =. v. Ahandu ;+34*< I.0.=. +/ 8om., +4. 10 +4/* %.=. )3*.
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intention to $ill, because there was a genuine, if inade6uately founded, belief that the accused was dead#++ accordingly %horty was convicted only of attempt to murder.+) 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.
Mens rea under Indian Penal Code The Indian "enal !ode +31* sets out the definition of offences, the general conditions of liability, the conditions of e:emptions from liability and punishments for the respective offences. 0ord acaulay and his colleagues have not used the common law doctrine of mens rea in defining these crimes. Cowever, they preferred to import it by using different terms indicating the re6uired evil intent or mens rea a s an essence of a particular offence. @uilt in respect of almost all the offences created under the I"! is fastened either on the ground of Intention or $nowledge or reason to believe. 'lmost all the offences under the I"! are 6ualified by one or the other words such as Lwrongful gain or wrongful loss#, Ldishonestly#, Lfraudulently#, Lreason to believe#, Lcriminal $nowledge or intention#, voluntarily#, Lmaliciously#, etc.. Thus, it can be said that the essence of the common law principle is present in I"! but that principle is not incorporated completely in it. %o, for interpretations of the provisions of I"!, the common law principle would not be used and, else, the definition provided by the code will be of utmost importance.+ Jnder Indian "enal code, every offence is defined. The full definition of every crime contains e:pressly or by implication a proposition as to the state of mind. Thus, it completely depends on the way the offence is defined by the drafters to constitute whether that offence re6uires mens rea or not to be an offence. It, therefore, appears that the ma:im actus non facit reum nisi mens sit rea has not so wide an application as it is sometimes considered to have. It has undergone a 11 "er Tredgold, B. 12 %upra 1, pg no. +/. 13 Ta$en from "%' "illai#s !riminal 0aw by A I (ibhute, +* th ed., 0e:is Ne:is 8utterworths Wadhwa publication, "g /2.
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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 loo$ at the object of each 'ct that is under consideration to see whether and how far $nowledge is the essence of the offence created. The ma:im actus non facit reum nisi mens sit rea has! ho"ever! no application to the offences under the "enal !ode in its purely technical sense because the definitions of various offences contain e:pressly propositions as to the state of mind of the accused. If, in any case, the Indian 0egislature has omitted to prescribe a particular mental condition, the presumption is that the omission is intentional. In such a case the doctrine of mens rea is not applicable. 8ut Sherras v. #e Rut$en1% seems very li$e an emphatic reKassretion of the doctrine that mens rea is an essential ingredient of every offence e:cept in three case5 ;+< cases not criminal in any real sense but which in the public interest are prohibited under a penalty, e.g. =evenue 'cts ;)< public nuisance ;< cases criminal in form but which are really only a summary mode of enforcing a civil right. >nly limited and e:ceptional 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. The essence of criminal law has been said to lie in the ma:imK Gactus non facit reum nisi mens sit rea.G 8ishop writes+/5 P GThere can be no crime large or small, without an evil mind. It is therefore a principle of our legal system, as probably it is of every other, that the essence of an offense is the wrongful intent, without which it cannot e:ist.G This e:amination of the mental element or mens rea re6uisite 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. ' possible division for such consideration is the following5 +. Re&uisite mens rea in the early la". 14 [1895] 1 QB 918. 15 !riminal law, 4 th ?dition. ;+4*< )32.
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). 'eginnings of the mens rea concept. . Su(se&uent )evelopment of a general mens rea as necessary for crime. %. *pplication of the general concept to some in)ivi)ual crimes! /. *pplication of the general concept regar)ing some specific )efenses. +. Some general present )ay applications of the term.
' 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. 8efore imposing punishment, the law must be satisfied of two things5 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 deterrent for the future, and therefore just. The form which mens rea assumes will depend on the provisions of the particular legal system. !riminal liability may re6uire the wrongful act to be done intentionally or with some further wrongful purpose in mind, or it may suffice that it was done rec$lessly and in each case the mental attitude of the doer is such as to ma$e 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 realiing the possibility of the harmful result, punishment will be effective inducement to better conduct in the future.+1 Met there are other cases in which, for sufficient or insufficient reasons, the law is content with a lower form of mens rea. This is the case, as was already noticed, with crimes of negligence. ' person may be held responsible for some crimes if he did not do his best as a reasonable man to avoid the conse6uence in 6uestion. %ometimes, 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 re6uirements of fault, wrongs are of three $inds ;+< Intentional or rec$less wrongs, in which the mens rea amounts to intention, purpose, design, or at least foresight. In such wrongs defences li$e mista$e operate to negative the e:istence of mens rea. ;)< Wrongs of Negligence, in which the mens rea assumes the less serious form of mere 16 ".B Fitgerald, %almond on Burisprudence, +) th edition, Delhi, Jniversal 0aw "ublishing !o, )*+), p 11.
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carelessness, as opposed to wrongful intent or foresight. With these wrongs defenses such as mista$e will only negative mens rea if the mista$e itself is not negligent. ;< Wrongs of %trict 0iability, in which the mens rea is not re6uired, neither wrongful intent nor culpable negligence being recognied as a necessary condition of responsibility and here defenses li$e mista$e are of no avail.+2
Intention 23ile draftin4 ?lement of ens =ea is incorporated in most of the offences of I"! 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 re6uired 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. ost of the times, it so happens that proving the commission of an offence becomes a difficult tas$ and upon that to prove the intention which is not visible from the outset, would be a herculean tas$ 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 $ind of situation mainly arises in the cases which deals with socioKwelfare legislations which are also called statutory offences. Jnder I"! also, there are provisions which especially deals with welfare of society li$e the provision related with dowry death+3. There are certain sections in the Indian "enal !ode 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 e:tensive burden of proving the act and also proving the intention lying behind that act. For e:ample, %ec )4) of the code, which tal$s about %ale, etc., of obscene boo$s, etc., and
17 Ibid, p.12.
18 %ec. * ;8< of Indian "enal !ode, +31*.
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provides the punishment only commission of the act. It is immaterial whether there was any intention or not.
Interpretation ! Indian Courts The concept of mens rea developed in ?ngland during the latter part of the commonKlaw era ;about the year +1**< when judges began to hold that an act alone could not create criminal liability unless it was accompanied by a guilty state of mind. Today most crimes, including commonKlaw crimes, are defined by statutes that usually contain a word or phrase indicating the mens rea re6uirement. ' typical statute, for e:ample, may re6uire that a person act $nowingly, purposely, or rec$lessly+4. 'nd the Indian !ourts has interpreted it in a beautiful manner without any hesitation and doubts. The 'pe: !ourt in the case of )irector of 'nforcement 5s. M.C.(.M. Corporation P5t. Ltd . K observed thus5 Gens reaG is a state of mind. Jnder the criminal law, mens rea is considered as the Gguilty intentionG and unless it is found that the accused had the guilty intention to commit the crime he cannot be held guilty of committing the crime.G The concept of mens rea is aptly described by Their 0ordships of 'pe: !ourt in the case of Nat3ulal 5s. State of Mad3!a Prades3 K . In para no. of the judgment Their 0ordships
observed thus5 GThe law on the subject is fairly well settled. It has come under judicial scrutiny of this !ourt on many occassions. It does not call for a detailed discussion. It is enough to restate the principles. ens rea is an essential ingredient of a criminal offence. Doubtless a statute may e:clude the element of mens rea, but it is a sound rule of construction adopted in ?ngland and also accepted in India to construe a statutory provision creating an offence in conformity with the common law rather than against it unless the statute e:pressly or by necessary implication e:cluded mens rea. 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 6uestion whether the element of guilty mind is e:cluded from the ingredients of an offence. ens rea by necessary implication may be e:cluded from a statute only where it is absolutely clear that the implementation of the objection of the statute would otherwise be defeated.G 19 http5QQlegalKdictionary.thefreedictionary.comQmens9rea
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Mens rea5 0atin for Gguilty mindG guilty $nowledge or intention to commit a prohibited act.
'lso5 Ga particular state of mind such as the intent to cause, or some foresight of, the results of the act or the state of affairs.G ;= v Daviault +44O %!= 1 at para. 2< any serious crimes re6uire the proof of mens rea before a person can be convicted. In other words, the prosecution must prove not only that the accused committed the offence ;actus reus< but that he ;or she< did it $nowing that it was prohibited that their act ;or omission< was done with an intent to commit the crime. ' ma:im rich in tradition and well $nown to law students is actus non facit reum! nisi mens sit rea or Ga person cannot be convicted and punished in a proceeding of a criminal nature unless it can be shown that he had a guilty mindG. Not all offences re6uire proof of mens rea such as many statutory or regulatory offences. 's long bac$ as +34/. Wright B. observed in %herras v.De =uten.GThere is a presumption that mens rea, an evil intention of $nowledge 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 wh ich it deals, and both must be considered.G In Ravule Hariprasa)a Rao v. The State ruled that unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of the crime, a person should not be found guilty of an offence against the criminal law unless he has got a guilty mind )*. ens rea means a guilty mind, a guilty or wrongful purpose a criminal intent. It presupposes guilty $nowledge and willfulness. ens rea means some blameworthy mental condition whether constituted by $nowledge or intention or otherwise. 'n honest and Kreasonable belief entertained by the accused of the e:istence of the facts, which, if true, would ma$e the act charged against him innocent, would be enough to show the absence of mens rea. In IndoK!hina %team Navigation !o. 0td., v. Basjit %ingh )+ the %upreme !ourt attached great importance to the social purpose of the legislation rather than to the so called presumption relating to mens rea. In %tate of aharashtra v. ayer Cans @eorge +41/O / !omp !as //2 ;%!< the %upreme !ourt e:pressed the view that the rule of construction laid down by the !ourt
20%tate >f @ujarat & 'nr vs 'charya D. "andey & >rs, +42+ 'I= 311, +42+ %!= ;)< 557 21 +41O !omp !as / ;%!<
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of !riminal 'ppeal of ?ngland in =egina v. %t. argarets Trust 0td.)), was nearer to the point having regard to the objects and purposes of the legislation with which they were dealing.
Mens rea: Is it re6uired in all cases7 !onsidering the 6uestion of re6uirement of mens rea, the ConPble %upreme !ourt in @ujarat Travancore 'gency v. !ommissioner of IncomeKta:, Aerala observed: ...In the case of a proceeding under %ection )2+;+< ;a<, however, it seems that the intention of the 0egislature is to emphasise the fact of loss of revenue and to provide a remedy for such loss, although no doubt an element of coercion is present in the penalty. In this connection, the terms in which the penalty falls to be measured are significant. Jnless there is something in the language of the statute indicating the need to establish the element of mens rea, it is generally sufficient to prove that a default in complying with the statute has occurred. In para +, In !ommissioner !entral ?:cise vs Ac 'lloys 'nd %teel !astings which was decided on 'ugust, )**1, it was held that PP It may also be noticed that though, normally, element of mens rea is mandatory re6uirement before penalty can be imposed but it is not always so re6uired.PP In )eepa and *rs. "s S.I. *f Police8 And Anr #&. It was held that PPNormally a charge must fail for want of mens rea but there may be offences where mens rea may not be re6uired. 8ut actus reus must always e:ist. Without it there cannot be any offence. ens rea can e:ist without actus reus, but if there is no actus reus there can be no crime. ?ven if mens rea is there, no conviction could be had without actus reus without which there cannot be a crime. For e:ample a man may intend to marry during the lifetime of his wife and enter into a marriage believing that he is committing the offence of bigamy. ens rea is there. 8ut if un$nown to him his wife died before he married again, in spite of the mens rea there cannot be an offence of bigamy. In !ommissioner of %ales Ta: v. =ama and %ons, @eneral erchant, 8allia)8 t3e Alla3aad /i43 Court oser5ed as under:-
22 +4/3O + W0= /)) ;! !r 'pp< 23 +431 !ri0B ++)* 24 +444 J"T! )/
pg. 16
GThe principle of mens rea comes from ?nglish !riminal 0aw from times when the law was not codified. It was said that actus non facit reum nisi mens sit rea ;the intent and act must both concur to constitute the crime<. 8ut this principle has lost much of its significance owing to greater precision of modern statutes. The nature of intent or the ingredients of offences are now clearly stated in the statutes and nothing further is re6uired to establish as offence then what the statute specified. We have words li$e PvoluntarilyP, PintentionallyP, PnegligetlyP, P$nowinglyP, fraudulentlyP, PdishonestlyP, PrashlyP, PomitsP, Pwithout lawful authorityP ect., PomitsP, Pwithout lawful authorityP ect., used in various sections of the Indian "enal !ode defining various offence. "roof of the %tate of mind or of the conduct of the person as indicated by the aforesaid word establishes the offence and no further guilty intent or mens rea need be proved. In fact there are many acts which are offences and do not re6uire proof any mens rea or guilty intention, for e:ample possession of illicit fire arm.G In P0al 8ehari v. %tate ;?
pg. 17
Conclusion ens rea was an essential ingredient of an >ffence. 'n application of the rule of construction to this principle meant that there was no presumption that mens rea was e:cluded form statutory offences.
Jnder common law GIt is a sound rule to construe a statute in
conformity with the common law rather than against it, e:cept where and so far the statute is plainly intended to alter the course of the common law. 0et me conclude this article with observation of the Con#ble Full 8ench of 'ndhra "radesh Cigh !ourt, in 'dditional, !ommissioner, Income Ta: v. Durga "andari Nath Tulijayya & !o.)/, where it was observed as under5 K GThe doctrine of mens rea is of common law origin developed by BudgeKmade law. It has no place in the 0egislatorPs law. It has no place in the 0egislatorPs law where offences are defined with sufficient accuracy. ens rea is an essential ingredient of an offence. Cowever, it is a rule of construction. If there is a conflict between the common law and the statutory law, it has always been held that it is a sound rule to construe a statute in conformity with the common law. 8ut it cannot be postulated that statute cannot alter the course of the common law. The parliament, in e:ercise of its constitutional powers ma$es statutes and in e:ercise of those powers it can affirm, alter or ta$e away the common law altogether. Therefore, if it is plain from the statute that it intends to alter the course of the common law, then the plaint meaning should be accepted. The e:istence of mens rea as an essential ingredient of an offence has to be made out by the construction of the statute.G
25 1977 TaxLR, 258
pg. 18
9ilio4rap3! 8oo$s =eferred •
@eneral "rinciples of !riminal 0aw, A.N. !handrase$hran "illai, )nd ?dition. 0e:is Ne:is
•
8utterworths "ublication. !riminal 0aw, !ases and aterials, A.D. @aur, 1th ?dition. Jniversal "ublication.
•
Aenny#s outlines of !riminal 0aw, B.W. !ecil Turner, +4th ?dition. Jniversal "ublication.
•
>." %rivastava#s "rinciples of !riminal law, =. "ra$ash, /th ?dition. ?astern 8oo$
•
!ompany. =atanlal & Dhirajlal, the Indian "enal !ode, Bustice AT Thomas, th ?dition. 0e:is Ne:is "ublication.
pg. 19