Author: Syed Atif
It is a well-known principle of English criminal law that a crime is not committed if the intention to commit it doesn’t exist. The principle is actus non facit reum, nisi mens sit rea (the intent and act must both concur to constitute the crime). Although prima facie there must be 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 an intention to break the law or not.
However, Sherras v. De Rutzen holds that mens rea is an inseparable ingredient of any offence except in cases: (1) not criminal in nature in any real sense but which in public interest are prohibited under a penalty; (2) of public nuisance and (3) criminal in form but which are really only a summary mode of enforcing a civil right.
This paper highlights the relation between the two components of criminal law necessary to punish someone for a crime.
Crime is inevitable in any society since some or the other violation of any code of conduct prescribed for the members of a society is bound to occur. The inevitability and universality of the phenomenon of crime has aptly been described by Emile Durkheim as follows:
“There is no society that is not confronted with the problem of criminality. Its form changes; the acts thus characterized are not the same everywhere; but, everywhere and always, there have been men who have behaved in such a way as to draw upon themselves penal repression… No doubt it is possible that crime itself will have abnormal forms, as for example, when its rate is unusually high. This excess is indeed undoubtedly morbid in nature. What is normal, simply, is the existence of criminality, provided that it attains and does not exceed, for each social type, a certain level… To classify crime among the phenomena of normal sociology is not to say merely that it is inevitable, although regrettable, phenomenon, due to incorrigible wickedness of men, it is to affirm that it is a factor in public health, an integral part of all healthy societies.”
Durkheim was of view that even a society composed of persons possessing angelic qualities would not be free from violations of the norms of that society with the result that faults which appear venial to a layman will create there the same scandal that the ordinary offence does in ordinary consequences.
Be that as it may, the bottom-line is that crime is of primary concern to every member of the society. The significance and extent of the problem, and hence the utility of criminology, may be gauged by crime figures in India during the past few years for some of the most serious offences. During the year 2007, the total reported numbers of cognizable crimes were 57,33,407, of which a total of 19.89 lakh crimes were of cognizable nature punishable under the Indian Penal Code, 1860 (hereinafter, ‘the IPC’). The crime rate declined by 15.7 per cent during the decade 1996-2006. The total number of crimes under special and local laws reported during 2007 is 37,43,734. This shows a decline of 0.6 per cent over 2005. The crimes under the Narcotic Drugs and Psychotropic Substances Act, 1985 has shown an increase of 12.4 per cent over the year 2006. During the year 2006 a total of 4,30,498 cases were reported against body. Crimes against the body showed an increase of 0.2 per cent during the year 2006 over 2005. Similarly a total number of 3,92,352, crimes against property were reported. A total of 36617 cases of molestation were reported during the year which showed an increase of 8.2 per cent over the year 2005 and 18.9 per cent increase over the average of last five years (2001-05). A total of 63,128 cases were reported during the year for offences under the anti-dowry law, Section 498A of the IPC. Similarly 18,967 crimes against children were reported during 2006.
Sir James Stephen claims that,
“the criminal law stands to the passion of revenge in much the same relations as marriage to the sexual appetite.”
A criminal offence is only committed when an act, which is forbidden by law, is done voluntarily. English jurists give the name of mens rea to the volition which is the motive force behind the criminal act. If there is no mens rea, no offence is committed although the act may prove detrimental to an individual or individuals. It is only voluntary acts which amount to offences. If a person is compelled by force of circumstances to perform an act forbidden by law, he cannot be said to do it voluntarily and therefore, he will not be held liable for the consequences of that act.
“mens rea”, said Beg, J. in Girja Nath v. State while explaining the juristic concept of crime,
“is a loose term of elastic significance and covers a wide range of mental states and conditions, the existence of which would give a criminal hue to actus reus. Sometimes it is used to refer to a foresight of the consequences of the act and at other times to act per se irrespective of its consequences. In some cases it stands for a criminal intention of the deepest dye, such as is visible in a designed and premeditated murder committed with a full foresight of its fatal consequences. In other cases, it connotes mental conditions of a weaker shade such as are indicated by words like knowledge, belief, criminal negligence or even rashness in disregard of consequences. At other times, it is used to indicate a colourless consciousness of the act itself irrespective of the consequences of the act, or, in other words, a bare capacity to know what one is doing as contrasted, for example, with a condition of insanity or intoxication in which a man is unable to know the nature of the act.”
The earliest legal ideas were first generalised in Hebrew law, which distinguished between crimes committed intentionally and unintentionally. The archetypal examples of criminal incapacity were accidental homicide and crimes committed by children or insane persons. With respect to major crimes, ignorance of the law was a good defence, and proof of “forewarning” had to be demonstrated for a successful prosecution. The doctrine of criminal responsibility was further elaborated in Greek philosophy and Roman law. Among the Greeks, the moral philosophers reflected the assumptions and practices of the courts by recognizing the different kinds of impulses which might motivate harmful acts.
The doctrine of mens rea in modern criminal law presupposes a dualism of mind and body and the existence of “mental states” which causes external acts. In law, this concept is usually expressed in terms of freedom of will. The definition and boundaries of “free will” were expounded in the middle Ages, and many writers argue that the genesis of the doctrine “is to be found in the mutual influences and reactions of Christian Theology and Anglo-Saxon law”.
The social control of criminals and deviants during the medieval period was guided by the moral dogmata reflected in the theological literature. Early English law reports very few cases of criminal incapacity but those who promulgated principles of law had no difficulty in finding religious concepts to justify and validate a unique role for children and the insane. Children, especially, were the subject of great interest and concern.
Augustine held that children, although capable of sin, are incapable of voluntary acknowledging and freely pursuing sin. They are immune to sanctions or rewards until “they are of age to know their father and mother”; they are “incapable of moral government” and “completely involved and overwhelmed in a cloud of darkness and ignorance.”
By the 12th century, there was growing support for the view that man is a free individual, morally and rationally autonomous, and unaffected by an inherent attachment to general humanity. Abailard and Aquinas, for instance, stressed man’s subjective capacity to make moral distinctions and further argued that children are incapable of personal sin until they reach the age of moral and intellectual discernment. This concept of mental element of crime was eventually adopted by the judges and jurists of England in the 14th century.
Inquiry into the origins of criminal responsibility has been extremely limited and has relied, for the most part, on secondary sources. The standard and most likely used reference in the United States is the Wharton and Still’s Medical Jurisprudence, which includes the first comprehensive survey of the historical development of tests of responsibility for the insane. The culpability of the criminally insane in American jurisprudence during the 19th century was determined according to the traditional principles of English law, reinforced by the ideas and emerging expertise of medical jurisprudence. James Hendrie Lloyd observed that the “right and wrong” test was a “brand new formula”, which was adopted arbitrarily by the Courts in the United States.
Prior to the M’Naghten case, one finds no criticism of the “right and wrong” test in the United States; only the renowned forensic psychiatrist, Isaac Ray, pointed out that such a test was inconsistent with psychological knowledge of human behaviour. He characterized the criminal law as clinging to “crude and imperfect notions” of insanity. Ray’s main objection to the “right and wrong” test of responsibility was based on the “well established” proposition that “the insane mind is not entirely deprived of the…power of mental discernment, but on many subjects is perfectly rational and displays the exercise of a sound and well balanced mind.”
Applicability of principle in Indian law
The substantive criminal law of India has glorified the principle of mens rea while convicting criminals for an offence punishable under the law.
For instance, Section 302 of the Indian Penal Code, 1860 punishes a person for the offence of murder with death or life imprisonment. The definition of murder has been laid down under Section 300 thereby outlining the ingredients of the offence. The very first clause to the offence under Section 300 emphasises on the principle of mens rea.
Wherein the accused got acquainted with the fact of his wife having illicit relations with some other person, he went to his dockyard, took his gun, went back home and shot his wife’s lover dead, it was held that the time span in the whole scenario was enough for the accused to have retracted from the decision of murdering the man and since he didn’t, he had certainly made the culpable intention of committing the offence under Section 300 and thus the exception of grave and sudden provocation shall not apply. Thus, presence of mens rea is the sine qua non for conviction under the IPC.
The importance given to the principle under the IPC can be adjudged from another provision:
“[34. Acts done by several persons in furtherance of common intention. – When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.]
The essence of joint liability under the provision lies in the existence of a common intention to do a criminal act in furtherance of the common objective of all the members of the criminal group. The word ‘common intention’ implies a prior concert, that is, a prior meeting of minds and participation of all the members of the group in executing the crime.
In Sheoram Singh v. State of Uttar Pradesh, the Honourable Supreme Court of India held that common intention may develop suddenly during the course of an occurrence, but shall unless there is cogent evidence and clear proof of such common intention, an accused cannot be vicariously held guilty under Section 34.
In certain cases, however, the principle is not given consideration, while convicting the person for an offence. Such as:
- Crimes of strict liability.- Thus in exceptional cases a person may be convicted of an offence independently of any wrongful intent or culpable negligence. Such offences are termed as offences of strict liability or absolute liability. In such a case it is no defence to an accused that he honestly believed on reasonable grounds and in good faith in the existence of facts which would have rendered his conduct innocent. Cases to which the doctrine of mens rea does not apply may be placed under four categories, viz.:
- Statutory offences of abduction, kidnapping, rape and offences against the State and army, etc.;
- Cases of public nuisance, libel and contempt of court, etc.;
- Offences created by statutes that are regulatory in nature, in which although the proceedings are criminal, it is really a mode of enforcing a civil right, for example, cases of violation of municipal laws, town planning laws, and traffic regulations, etc.;
- Public welfare offences which include socio-economic offences relating to food, drugs, weights and measures, hoarding and black marketing, licensing, revenue, environment pollution and custom offences, etc. such offences are basically quasi-criminal in nature.
- Offences relating to hazardous establishments: Absolute liability.- In C. Mehta v. Union of India, a five Judge Bench consisting of the then Chief Justices P.N. Bhagwati, Justice R.N. Mishra, Oza, M.M. and K.N. Singh XI. delivered the judgement on a writ petition filed under Article 32 of the Constitution by the Legal Aid and Advice Board and the Supreme Court Bar Association against the judgment of a three Judge Bench of the Court on 17th February, 1986, permitting Shriram Fertiliser Industries to restart manufacture of soda and chlorine including its by-products and recovery plants like soap, glycerine and technical hard oil, etc.
Allowing the petition for closure of the plant, P.N. Bhagwati, C.J. while delivering the unanimous judgement of the court said:
“An enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of activity it has undertaken. The enterprise……must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part (para 31).”
The Supreme Court of India has authoritatively ruled that the operation of common law doctrine of strict liability enunciated in 1868 in the case of Ryland v. Fletcher, and subsequently developed has no application in India. As regards the measure of damages the court said that the damages by way of compensation must have deterrent effect and must be correlated to the magnitude and capacity of the enterprise. The judgment is not confined only to enterprises which are engaged in hazardous or inherently dangerous activities, viz., state enterprises, scientific research institutions, under or outside the auspices of State, etc.
- Offences relating to sale of prohibited drugs. – In Warner v. Metropolitan Police Commissioner, the House of Lords while dismissing the appeal held that the offence created by section 1 of the Drugs (Prevention of Misuse) Act, 1964 is an absolute offence. The gravity of the evil and the dangers, which are presented by the passing of the drugs through informal or unauthorised channels even where some of the unauthorised persons have no improper motives or are merely careless or indifferent indicate the importance of closing them altogether. The Act forbids them; and expressly excludes the requirement of mens rea as a necessary ingredient for conviction. The defendant accordingly is deemed to be in possession of a prohibited substance, but was never aware of its true nature.
- Offences relating to river pollution: strict liability. – In Alphocell Ltd. v. Woodword the offence of causing poisonous, noxious or polluting matter to enter a stream contrary to section 2(1)(a) of the River (Prevention of Pollution) Act, 1951 is of strict liability. The court said that it is of the utmost public importance that our rivers should not be polluted. The risk of pollution, particularly from the vast and increasing number of riparian industries, is very great. The offences created by the 1951 Act are prototypes of offences that ‘are not criminal in any real sense, but are acts which in the public interest are under a prohibited penalty’. There is no valid reason for reading the words, ‘intentionally’, ‘knowingly’ or ‘negligently’ into section 2(1)(a) of the Act and a number of cogent reasons for not doing so. Such offences are of strict liability.
However, these are only few exceptions to the principle. By and large mens rea is the basis of conviction under the substantive criminal law of India.
What the Code requires is not negation of mens rea but mens rea of a specific kind and this may differ from offence to offence. Other exceptions such as infancy/doli incapax, unsoundness of mind, intoxication, etc, are also based on the principle of absence of mens rea.
Hence, it can be concluded that mens rea is by and large the basis for conviction for any offence and the reason is simple that a person cannot be held guilty for the offence he didn’t intend to commit because that is injustice and denial of his rights. Crime and punishment go hand-in-hand and in a democracy it is expected that nobody would be done wrong. Hence, mens rea becomes the sine qua non for any offence unless expressly mentioned otherwise with justified reasons.
 (1895) 1 Q.B. 918
 Emile Durkheim, Rules of Sociological Method (1950), at p. 65
 Act 45 of 1860
 Act 61 of 1985
 Crime in India (2006) (National Crime Record Bureau, New Delhi 2007)
 State v. B.D. Meattle, AIR 1957 Punj 74
 ILR (1954) 2 All 215
 Anthony Platt, Bernard L. Diamond, The Origins of the Right and Wrong Test of Criminal Responsibility and Its Subsequent Development in the United States: An Historical Survey 54 CALIFORNIA LAW REVIEW ISSUE 3 ARTICLE 3 (1966)
 During the fifth century there had dearly been a greater emphasis on fault as the basis of liability, and in the fourth Demosthenes puts the completely different attitude shown to intentional and unintentional injuries among the unwritten laws of nature supported by the universal moral sense of mankind.” JoNas, THE LAW AND LEGAL THEORY or Ta GEEExs 264 (1956)
 Levitt, The Origin of the Doctrine of Mens rea, 177 ILL. L. REV. 117, 136 (1922)
 AUGUSTINE, ON THE FORGIVENESS OF SINS AND BAPTISM Book I, ch. 66-67
 R v. M’Naghten, (1843) 8 E.R. 718
 RAY, MEDICAL JURISPRUDENCE OF INSANITY 13 (3rd ed. 1853)
 302. Punishment for murder- Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine
 Act 45 of 1860
 300. Murder- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-
Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
Fourthly,- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1- When culpable homicide is not murder- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos:-
First- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing. or doing harm to any person.
Secondly- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly- That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Exception 2- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Exception 3- Culpable homicide is not murder if the offender, being a public servant or aiding. a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Exception 5- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
 K. M. Nanavati v. State of Maharashtra, AIR 1962 SC 605
 Subs. By Act 27 of 1870, sec. 1, for the original section
 Pandurang Tukia and Bhillia v. State of Hyderabad, AIR 1955 SC 331
Khacheru Singh v. State of Uttar Pradesh, (1982) 3 SCC 218
 AIR 1972 SC 2555
 State of Maharashtra v. M. H. George, AIR 1965 SC 722
 AIR 1987 SC 1086
 M. C. Mehta v. Union of India (Oleum Gas Leak Case – I), AIR 1987 SC 965
Sachidanandana Pandey v. State of West Bengal & Ors, AIR 1987 SC 1109 (at 1110)
 (1868) 19 LT 220
 (1968) 2 All ER 356
 Subs. By The Misuse of Drugs Act, 1971
 (1972) 2 All Eng. Rep. 475 (HL)
 The Indian Penal Code, 1860, s. 82
 Id., s. 84
 Id., s. 85
About the Author: Syed Atif is a practicing advocate at the Supreme Court of India. [B.A.LL.B(H), LLM]
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