L. M. S.

LAW COLLEGE, IMPHAL

DHANAMANJURI UNIVERSITY

INTERNAL ASSESSMENT PAPER 2021

OF
SUBJECT: PRINCIPLES OF CRIMINAL LAW

UNDER THE TOPIC:

“Mens Rea and Statutory Crimes”

Submitted to: Submitted by:

DR. Vareso Ningshen A. Athuo Luke
Associate Professor LL.M 3rd Sem.
L.M.S Law College, Imphal DMU Roll No. 1958001
 ACKNOWLEDGEMENT

I hereby express my deepest gratitude towards the subject expert of “Mens Rea and

Statutory Crimes”, Dr. Vareso Ningshen (Associate Professor) who gave me the

golden opportunity and the freedom to explore on the wonderful assignment topic of

“Mens Rea and Statutory Crimes”. It has helped me in gaining the necessary
information regarding the processes involved in writing research paper and it further
improved my knowledge in the area of the subject.
I am very thankful to the librarian who provided me several books on this topic
which proved beneficial in completing this project.
I would also like to express my special gratitude towards my classmates for
providing their valuable and meticulous insight and support that greatly assisted in the
completion of this assignment.

A. Athuo Luke
LL.M 3rd Sem.
DMU Roll No. 1958001

I
 MENS REA AND STATUTORY CRIMES

Abstract:
In a criminal jurisprudence, a person cannot be found guilty of a criminal
offence unless two elements are present, mens rea i.e. a guilty mind and an actus
reus i.e. a guilty act. Before a criminal is made liable, he should be proven to have
some blameworthy mental condition (mens rea). But, the requirement of a guilty
mind varies from crime to crime. An intention which qualify as the required mens
rea for one crime, may not qualify for some other crime. This general rule is subject
to certain exceptions where legislature has dispensed with the requirement of mens
rea and has created offences of strict liability.

A statute may exclude the element of mens rea, but it is a sound rule of
construction adopted in England and also excepted in India to construe a statutory
provision creating an offence in conformity with the common law rather than
against it unless the statute expressly or by necessary implication excludes mens rea.
Therefore, by analysis of the doctrine of mens rea, this project tries to determine its
usage in common law and more importantly in statutory law.

Keywords : Criminal jurisprudence, Criminal offence, Mens rea, Guilty mind, crime,
Statute, Statutory law.

II
 CONTENTS

List of Abbreviation …………………………………..IV

List of cases …………………………………..V

Chapter 1
Introduction ………………………………..…1

Chapter 2
Crime-Causing Elements of Mens Rea…..………………………..…3

Chapter 3
Mens Rea under Indian Penal Code………………………………..…5

Chapter 4
Statutory Offences in Mens Rea ……….………………………..…7

Chapter 5
Conclusion ………………………………..…11

Bibliography ………………………………..…12

III
 LIST OF ABBREVIATION

AIR All India Records

All. Allahabad

AnWR Andhra Weekly Reporter

APLJ Andhra Pradesh Law Journal

Co. Company

Ed. Edition

IPC The Indian Penal Code

p. Page

pp. Pages

Prof. Professor

Pvt. Ltd. Private Limited

s. Section

SCC Supreme Court cases

SCR Supreme Court Review

ss. Sections

v. Versus

Vol. Volume

IV
 LIST OF CASES
 Additional Commissioner, Income Tax v. Durga Pandari Nath Tulijayya & co. 1977 (2)

AnWR 47, 1976 (1) APLJ 43.

 Director of Enforcement vs. M.C.T.M. Corporation Pvt. Ltd. (1996) 2 SCC 471.

 Kesar Singh v. State of Haryana (2008) 15 SCC 753.

 Nathulal v. State of Madhya Pradesh, AIR 1966 SC 43, para 4.

 Om Prakash Raja v. State of Uttaranchal, 2003, 1 SCC 648.

 Queen Empress v. Raghunath Rai, (1892) 15 All 22.

 R. Balakrishna v. State of Kerela, (2003) 9 SCC 700.

 Ranjit D Udeshi v. State of Maharashtra, 1965 AIR 881, 1965 SCR (1) 65.

 Ravule Hariprasada Rao v. The State, AIR 1951 204, SCR 322.

 Shamsher Singh v. State of Haryana, 2002, 7 SCC 536.

 State of Maharashtra v. M.H. George, AIR 1965 SC 722.

 State of Uttar Pradesh v. Arun Kumar, 2003, 2 SCC 202.

V
 Chapter 1
INTRODUCTION

Ever since the dawn of human civilization, crime has been a baffling
problem to which society has been striving to control and mitigate its occurrence.
The concept of crime is essentially concerned with the social order. It is the moral
wrong committed against the society causing a disruption of peace. But it is
evident that the source of the crime strikes out from a mental thought process of
guilty mind leading to the act. The intention of the law is clearly to stipulate mens
rea or guilty intention as the sine qua non of a criminal act which is an essential
element of crime.

Therefore, under criminal law, a person cannot be found guilty of a

criminal offence unless two elements are present, mens rea i.e. a guilty mind and
an actus reus i.e. a guilty act. ‘Mens rea’ is a Latin word for ‘guilty mind’ and
refers to the state of mind of the person committing the crime. Mens rea does not
exist physically but it is an essential element of crime. While The burden of proof
is on the prosecution to be proved beyond reasonable doubt.1 Further, law
provides for benefit of doubt to the accused.

Earlier in the 12th century Mens Rea was not an element of crime. The
wrongdoers gets punished regardless the fact that whether the act done was
intentional or not. The concept of Mens Rea was first introduced in the 17th century
along with the Latin maxim “Actus non facit reum nisi mens sit rea”. This maxim
means “The act itself does not constitute guilt unless done with a guilty mind.”. This
maxim cleared the conflict that a crime can only be said to be constituted where the
action was done through a guilty intention.

1
R. Balakrishna v. State of Kerela, (2003) 9 SCC 700.

1
 An act assumes the character of a penal offence if it is impelled with a mental
design to achieve the result which the law seeks to prevent.

Though Mens Rea originally is a part of English Law but after modifying and
systematically arranging it accordingly, it was included to the British Indian penal
law so that it could suit the circumstances. Mr. M.C Setalvad said that “Basic English
notions underlie most of the crimes defined in the code but also these notions were
simplified and modified to adapt to the Indian conditions.”

The Apex Court in the case of Director of Enforcement vs. M.C.T.M. Corporation
Pvt. Ltd.2 observed thus: "Mens rea" is a state of mind. Under the criminal law, mens
rea is considered as the "guilty intention" 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."

Mens Rea or the mental element of crime is a very important part of criminal
law in India and other countries as well. Most laws in India contain the element of
guilty mind so as to make an act by a person criminally liable for punishment. Mens
Rea is the whole essence of crime. The presence of Mens Rea implies that the
wrongdoer had the ability to choose between what is good and what is not.3
Without having an intention to act in a manner that it causes harm to person or
property, in the face of law is not a crime except in the case of strict liability or
absolute liability.

The current project critically analyses this situation and takes into account
different crimes committed vide the doctrine of mens rea and analyses different
decisions on the issue with the help of relevant case laws.

2
(1996) 2 SCC 471.
3
Rajni Negi : Mens Rea : Mental Element in crime, August 20, 2019, available at
http://lawtimesjournal.in/mens-rea-mental-element-in-crime/#_ednref1 visited at 04/04/21 at 20:54.

2
 Chapter 2
CRIME-CAUSING ELEMENTS OF MENS REA:

Mens rea has been made the central of criminal liability. This is due to the
fact that every person has the capacity to choose between right and wrong. Once a
person makes that choice, he or she has to take the responsibility for the same. Here
are some crime causing elements of Mens Rea.

Intent: To intend is to have in mind a fixed purpose to reach a desired objective;

the noun ‘intention' is used to denote the state of mind of a man who not only
foresees but also desires the possible consequences of his conduct. A man cannot
intend to do a thing unless he desires to do it. 4

Intention and Motive: Motive is basically a reason for an action or a clue to the
intention. It is therefore called as ‘ulterior intent’. According to Austin, motive is
the spring of action and intention is the objective of the act, of which the motive is
the spring. In Queen Empress v. Raghunath Rai5, a Hindu took away a calf from a
Mohammedans house without his knowledge and consent in order to save it from
slaughter. The accused was held guilty of theft and rioting although he acted with
the best of motive to save the life of the sacred cow.

Knowledge: According to Sec. 39, IPC, a person is said to cause an effect

voluntarily when he causes it by means which, at the time of employing those
means, he knew or had reason to believe to likely cause it. Hence it takes into
account not only intention, but also knowledge and reasonable grounds of belief.

4
Kenny’s outlines of Criminal Law (19th Edition), Delhi, Edited by J.W. Cecil Turner, Delhi, Universal
Publishing Co. Pvt. Ltd., 2006, at p. 31.
5
(1892) 15 All 22.

3
 It has been held in Kesar Singh’s case6 that knowledge denotes a bare state of
conscious awareness of certain facts in which the human mind might itself remain
supine or inactive whereas intention connotes a conscious state in which mental
faculties are roused into activity and summed up into action for the deliberate
purpose of being directed towards a particular and specific end which the human
mind conceives and perceives before itself.

Negligence: Negligence is the lack of attention or due care that a reasonable or

prudent person may have while performing any task. Strictly speaking, negligence
may not be a form of mens rea. However, the IPC imposes criminal liability on the
ground of negligence, particularly when a negligent act poses threat to life or
personal safety of others. Negligence is more in the nature of legal fault. It is made
punishable strictly for an utilitarian purpose of hoping to improve people’s
standards of behaviour.7

Voluntarily: This word is used in the IPC in s. 39 to show that the person doing
an act knew about it and its consequences and had full control over it. Voluntarily
can be used to show intention as well. It is used only because it has more extended
meaning than ‘intentionally.’ For example, if a man drives in a rash and reckless
manner resulting in an accident causing the death of a person, he cannot plead
innocence. So, by the virtue of the definition in IPC it is presumed or deemed to
have intention to cause the death of the person.8

6
Kesar Singh v. State of Haryana (2008) 15 SCC 753, available at https://indiankanoon.org/doc/349982/
stanza 21 visited on 03/04/21 at 20:54.
7
PSA Pillai, Criminal Law (11th Edn.), Edited by K.I. Vibhute, Nagpur, Lexis Nexis Butterworths Wadhwa
publication, 2012, p. 46.
8
Ibid, pp 42, 43.

4
 Chapter 3

MENS REA UNDER 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, the word
‘mens rea’ as such is not found in the IPC, its incarnation is reflected practically in
all the provisions of the Penal Code. Each wrongdoing perpetrated under the IPC
essentially matters the chance of a criminal reason or mens rea in some construction
or other.9

Almost all the offences under the IPC are qualified by one or the other words
such as ‘wrongful gain or wrongful loss’ (s. 23), ‘unfair loss’, ‘dishonestly’ (s. 24),
‘fraudulently’ (s. 25), ‘reason to believe’(s. 26), ‘criminal knowledge or intention’ (s. 35),
‘intentional cooperation’ (s. 37) , ‘voluntarily’ (s. 39), ‘Malignantly’ (ss. 53, 270),
‘wantonly’ (s. 153), ‘maliciously’ (ss. 219, 220), etc. All these words demonstrate the
reprehensible state of mind needed at the time of the commission of the crime, to
constitute a crime. 10

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. However, it
was preferred to import it by using different terms indicating the required evil
intent or mens rea as an essence of a particular offence.

9
Sanjoli Verma : Doctrine of Mens Rea and its application under IPC, March 20, 2021. Retrieved from
https://www.legalbites.in/doctrine-of-mens-rea/#_ftn1 visited on 05/04/21 at 15:45
10
Supra note 7, Pg. 57.

5
 The concept of mens rea has been incorporated into the provisions relating
to the ‘General Exception’ contained in Chapter IV of the Code. And where the
legislature has omitted to lay down a particular state of mind as an essential
ingredient of an offence under the code, the presumption is that such an omission
is deliberate and in such a case the doctrine of mens rea will not apply.11 For
example, a crime committed by a child below seven or a mentally deranged person
does not constitute a crime as the mental elements of mens rea is absent.

However, there are certain sections in the Indian Penal Code in which 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, s. 292 of the code, which talks about Sale, etc., of obscene books,
etc., provides the punishment for commission of the act whether there was any
intention or not. Such other offences where mens rea is not required in IPC includes
waging of war (s. 121), sedition 9 (s. 124A), kidnapping and abduction (ss. 359, 363)
and counterfeiting coins (s. 232).

Therefore. it can be said that the doctrine of mens rea is applicable to the
offences under the Penal Code, although not entirely, but through specific elements
of mens rea which may differ from offence to offence.

11
K. D. Gaur, Indian Penal Code (5th Ed.), Edited by Justice V.R. Khare, New Delhi, Universal Law Publishing
Co. Pvt. Ltd., 2014.

6
 Chapter 4
STATUTORY OFFENCES IN MENS REA

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. 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.

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.12

12
Shashank Shekhar : Mens rea in Statutory Offences, available at
http://www.legalservicesindia.com/article/831/Mens-Rea-in-Statutory-Offences.html visited on 03/04321 at
23:12.

7
 A statute may exclude the element of mens rea, but it is a sound rule of
construction adopted in England 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 expressly or by necessary implication excludes mens
rea.13 So generally, the question that arises in these cases is that whether mens rea is
present or absent in the offender. But, sometimes, the question switches to whether
it is required or not. This happens in case of statutory offences.

There are a host of other acts which is liable, even if there is no mens rea
or guilty mind. They include the Factories Act 1948, the Minimum wages Act, 1948,
the Payment of Wages Act 1936, the Employees Provident Fund Act 1952, the
Employees State Insurance Act 1948, The prevention of Food Adulteration Act 1954,
the Essential Commodities Act 1955, the Foreign Exchange Regulation Act 1947, the
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 and
other acts.

In other words, no mens rea or legal fault is entirely required for criminal
liability in statutory crimes. In 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. 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.

13
Ratanlal and Dhirajlal : The Indian Penal Code (33rd Edition Reprint), Nagpur, Edited by Justice Y.V.
Chandrachud & V.R. Manohar, Lexis Nexis Butterworths Publication, 2012, p. 105.

8
 An important case in this respect would be that of Lockyer v. Gibb. 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.

In Ranjit Udeshi’s Case14, an individual was indicted for selling a book called
Lady Chatterley’s Lover, a well-known book composed by DH Lawrence. The
litigant affirmed that he had no knowledge of the material of the book and
accordingly didn’t have the necessary men’s rea. Court denied this case and held
that since section 292 of the Code, in contrast to different sections, doesn’t contain
the words ‘purposely’, knowledge of profanity is certainly not a fundamental
element of the offense under section 292. It additionally decided that obligation
under the section is severe and consequently, mens rea isn’t needed.

In the case of State of Maharashtra v. M.H. George15, 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.

14
Ranjit D Udeshi v. State of Maharashtra, 1965 AIR 881, 1965 SCR (1) 65
15
AIR 1965 SC 722.

9
Common Law related Offences:

In the Shamsher Singh’s case16, in which testimony and medical proofs

revealed that the death of the person was because of injury brought about by the
respondent, the Supreme Court maintained the litigant’s sentence under Section 302
of the IPC, regardless of the choice of the Supreme Court that inability to
demonstrate the motive is unessential. The court in the Om Prakash’s Case,17 rejected
the plea that the prosecution could not state the motive for the killing of three family
members and the accused was proven to be guilty. Conversely, the motive in and
of itself cannot be evidence of a crime. The Arun Kumar’s Case18 stressed that
evidence of motive without evidence of guilt of a defendant is not justified in his
conviction.

Exceptions to Mens rea:

It is however held 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.19 This evolves as an exception to the common law principle.

In Ravule Hariprasada Rao v. The State20, the Supreme Court decided that,
except if a rule, either plainly or by vital ramifications, precludes mens rea as a
constituent component of wrongdoing, an individual ought not to be held
blameworthy of wrongdoing except if there exist a liable mind at the time of
commission.

16
Shamsher Singh v. State of Haryana, 2002, 7 SCC 536
17
Om Prakash Raja v. State of Uttaranchal, 2003, 1 SCC 648
18
State of Uttar Pradesh v. Arun Kumar, 2003, 2 SCC 202.
19
Supra note 13, p. 106
20
AIR 1951 204, SCR 322.

10
 Furthermore, the Hon’ble Full Bench of Andhra Pradesh High Court, in
Additional, Commissioner, Income Tax v. Durga Pandari Nath Tulijayya & Co.21,
observed as under: - "Mens rea is an essential ingredient of an offence. However, 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. But it cannot be postulated that statute cannot alter the course of the common
law. The parliament, in exercise of its constitutional powers makes statutes and in exercise
of those powers it can affirm, alter or take 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 plain
meaning should be accepted. The existence of mens rea as an essential ingredient of an
offence has to be made out by the construction of the statute."

Henceforth, it can be said that 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 not22. 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 Pradesh23. The court had said that :-

“Mens rea is an essential ingredient of a criminal offence… unless the statute

expressly or by necessary implication excluded 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 question whether the element of guilty mind is excluded from the
ingredients of an offence. Mens rea by necessary implication 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.”

21
1977 (2) AnWR 47, 1976 (1) APLJ 43, available at https://indiankanoon.org/doc/809429/, stanza 17,
visited on 09/04/21 at 06:11.
22
Supra note 12.
23
AIR 1966 SC 43, para 4.

11
 Chapter 5
CONCLUSION

The growing modern philosophy of penology endorses the element of mens

rea as an essential ingredient of a crime. Today most crimes, including common-law
crimes, are defined by statutes that usually contain a word or phrase indicating the
mens rea requirement. As Bishop writes: "There 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 exist."

An application of the rule of construction to this principle meant that there

was no presumption that mens rea was excluded from statutory offences. Under
common law it is a sound rule to construe a statute in conformity with the common
law rather than against it, except where and so far the statute is plainly intended to
alter the course of the common law.

From our observation, 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.

To conclude, modern criminal jurisprudence no longer accepts retribution as

the main object of a criminal law. The goal of Penal Jurisprudence is for the
punishment to be appropriate to the offender for the crime(s) committed and to
reform the criminal and rehabilitate him and further control and regulate the
challenging increasing occurrence of crime.

12
 BIBLIOGRAPHY

Books referred:

 Kenny’s outlines of Criminal Law (19th Edition), Edited by Cecil Turner J.W., Delhi,
Universal Publishing Co. Pvt. Ltd., 2006.
 Pillai PSA, Criminal Law (11th Ed.), Edited by Vibhute K.I., Nagpur, Lexis Nexis
Butterworths Wadhwa publication, 2012.
 Ratanlal and Dhirajlal : The Indian Penal Code (33rd Edition Reprint), Edited by
Justice Chandrachud Y.V. & Manohar V.R., Nagpur, Lexis Nexis Butterworths
Publication, 2012.
 Gaur K.D., Indian Penal Code (5th Ed.), Edited by Justice Khare V.R., New Delhi,
Universal Law Publishing Co. Pvt. Ltd., 2014.

Journals referred:

 Verma Sanjoli: Doctrine of Mens Rea and its application under IPC, March 20, 2021.
 Negi Rajni: Mens Rea : Mental Element in crime, August 20, 2019.
 Shekhar Shashank: Mens rea in Statutory Offences.

Websites visited:

 http://lawtimesjournal.in/mens-rea-mental-element-in-crime/#_ednref1 visited at
04/04/21 at 20:54.
 http://www.legalservicesindia.com/article/831/Mens-Rea-in-Statutory-Offences.html
visited on 03/04321 at 23:12.
 https://indiankanoon.org/doc/349982/ stanza 21 visited on 03/04/21 at 20:54.
 https://indiankanoon.org/doc/809429/ stanza 17 visited on 09/04/21 at 06:11.
 https://www.legalbites.in/doctrine-of-mens-rea/#_ftn1 visited on 05/04/21 at 15:45.

13