1

CHAPTER I
ELEMENTS OF CRIME

Krishna Murari Yadav

Assistant Professor,
LAW CENTRE – 1,
FOL, DU.
SYNOPSIS

 Meaning of Crime
 Bentham
 Henry Maine
 Blackstone
 Blackstone
 Austin
 Stephan
 Kenny Keeton Millar
 Elements of Crime
(1). Human being
(2). Mens Rea / Guilty Mind
(3). Actus reus / Prohibited act, and
(4). Injury to society or human being.
 Schools of Mens Rea (Interpretation of statutes)
 Presumption of Existence of Mens Rea, and
 Presumption of Absence of Mens Rea. Both presumptions are rebuttable.
 Latin Maxims
 Actus non facit reum, nisi mens sit rea
 Nullum Crimen Sine Lege, Nulla Poena Sine Lege
 Stages of Crime
(1). Intention of Contemplation
(2). Preparation
(3). Attempt; and
(4). Commission of Crime or accomplishment / execution.
 Previous Years Question Papers

Krishna Murari Yadav, Assistant Professor, LAW CENTRE – I, FOL, DU

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MEANING OF CRIME
Exams Jurist Definition
Bentham “Offences are whatever the legislature has prohibited
for good or for bad reasons ….according to the
principles of utility, we give the name of offence to
every act which we think ought to be prohibited by
reasons of some evil which it produces or tends to
produce.”
Henry Maine An ancient time, penal law is not the criminal law,
but it is wrong law.
UPPCS2002 Blackstone “Crime is an act committed or omitted in violation of
UP Lower public law either forbidding or commanding it.”
Blackstone “Crime is violation of public right or duties due to the
whole community, considered as a community, in its
social aggregate capacity.”
Austin “A wrong which is pursued at the discretion of the
injured party and his representative is a civil injury. A
wrong which is pursued by the sovereign or his
subordinate is a crime.”
UPPCS2005 Stephan “Crime is an act forbidden by law and which is at the
same time revolting to the moral sentiments of the
society.”
UPPCS2003 Kenny “Crimes are wrongs which sanction is punitive and is
no way remissible by any private person, but is
remissible by crown alone, if remissible at all.” Here
sanction means punishment and remissible means
pardon by crown.
Keeton “A crime would seem to be any undesirable act which
the State finds it most convenient to correct by the
institution of proceedings for the infliction of a penalty,
instead of leaving the remedy to the discretion of some
injured party.”
Millar “Crime is …to be commission or omission of an act
which the law forbids or commands under pain of a
punishment to be imposed by the State by a proceeding
in its own name.”

Krishna Murari Yadav, Assistant Professor, LAW CENTRE – I, FOL, DU

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DU LL.B. Previous Year Question Paper 2010

Question 1 - Explain the essential elements of crime.
Answer
Definition of Crime
According to Blackstone “Crime is an act committed or omitted in violation of public law either
forbidding or commanding it.”
According to Stephan “Crime is an act forbidden by law and which is at the same time revolting
to the moral sentiments of the society.”
Elements of Crime
There are four elements of crime namely; (1) Human being (2) Mens Rea / Guilty Mind (3)
Actus reus / Prohibited act, and (4) Injury to society or human being.

Elements of
Crime

Four Elements

Mens Rea / Actus reus / Injury to society or

Human Being
Guilty Mind Prohibited act human being

(1) Human being – Only Human being can commit crime under IPC. In European Countries
animals were also punished for committing crime during medieval era. In Hindu criminal
jurisprudence did not provide for trail and punishment of animals or inanimate objects. Only a
human being under a legal obligation and capable of being punished can be the proper subject
of criminal law. It means a human being must have a body. Legal person like company or idol
will not come under human being.
(2) Mens Rea – Mens Rea means guilty mind. It is denoted with intention, knowledge,
negligence, rashness, wrongful gain or wrongful loss, voluntarily or reason to believe, mala
fides etc. Actus non facit reum, nisi mens sit rea means the act itself does not make a man
guilty, unless the mind is also guilty. Chapter IV (General Exception) of IPC is itself
recognition of requirement of mens rea.There are certain cases in which human being can be
punished even without guilty mind. Such types of offences come under the principle of strict
liability. For examples kidnapping, bigamy, economic offences (M.H. George Case) etc.
(3) Actus reus / Prohibited act- According to Kenny ‘actus reus is such result of human
conduct as the law seeks to prevent. Professor Glanville Williams has given wider meaning of
actus reus. According to him actus reus means the whole definition of crime with the exception
of mental elements. Actus reus includes negative as well as positive elements. According to
section 32 of IPC ‘act’ includes omission. According to section 33‘act also includes series of
acts. Mens rea itself is not sufficient to constitute offence. Guilty mind cannot be identified
unless some overt act is done.

Krishna Murari Yadav, Assistant Professor, LAW CENTRE – I, FOL, DU

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(4) Injury – According to section 44 of IPC the word “injury” denotes any harm whatever
illegally caused to any person, in body, mind, reputation or property. In certain situation person
is punished even though he has not committed injury to another person. These are the case of
inchoate crime for example abetment, conspiracy and attempt.

Question1 (2011)
Explain the common law principle of “actus non facit reum, nisi mens sit rea” with the help of
decided case. What are the exceptions, if any, to this principle?
Answer -

Actus non facit reum, nisi mens sit rea (Common Law Doctrine)
Actus non facit reum, nisi mens sit rea means the act itself does not make a man guilty, unless
the mind is also guilty. This theory was developed be Common Law Courts. First time concept
of Mens Rea was discussed by Justice Coke. In case of Fowler v. Padget (1798) Lord Kenyon
held that actus reus and mens rea both are essentials for commission of crime.
This maxim denotes that guilty mind and prohibited act both are part and parcel of crime. It is
rule that without guilty mind, crime cannot be committed. There are also certain exceptions of
this maxim.

Actus non facit reum,

nisi mens sit rea

Exceptions
Rule - There are certain cases
Two elements in which there is no
need of guilty mind

Prohibited Act Guilty Mind

If maxim applies – In case of application of this maxim, accused person would be

benefited and there would be utmost probability of to win the case because prosecutor would
be bound to prove prohibited act and guilty mind.
If maxim does not apply - It would be very easy for prosecutor to win the case because
he would be bound to prove only one condition i.e. prohibited act. To prove guilt mind always
very difficult. It in such case there would be a lot of harm for accused.

Krishna Murari Yadav, Assistant Professor, LAW CENTRE – I, FOL, DU

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Meaning of Actus reus -

Actus reus means physical condition of penal liability. Actus Reus is defined as a result of
voluntary human conduct which law prohibits. It is the doing of some act by the person to be
held liable an ‘act’ is a willed movement of body.
Meaning of Mens Rea -
Mens Rea means guilty mind or an evil/ mala-fide intention to commit illegal act. It can be
identified as intention, knowledge, reason to believe, negligence, recklessness etc.
Exception of Actus non facit reum, nisi mens sit rea (Strict Liability) -
Sometimes offence is constituted even without guilty mind it is called strict liability. There are
certain exceptions of Actus non facit reum, nisi mens sit rea.
These exceptions are following -
(1) Criminal Libel
(2) Public Nuisance (Hicklin Test)
(3) Contempt of Court
(4) Abduction/Kidnapping1
(5) Bigamy2
(6) Waging war3
(7) Sexual Harrasment4
(8) Rape5
(9) Selling of obscene books6
(10) Essential Commodities Act, 19557
(11) Motor Vehicles Act, 1988
(12) FERA (Foreign Exchange and Regulation Act), 19478
(13) Sea Customs Act9
(14) Statutory offences.

1
R. v. Prince (1875), Section 361 and 362 of IPC.
2
Section 494 of IPC. In the Case of R. v. Tolson British Court did not apply strict liability. But we are
not bound by decision of that Court. Application of it depends upon facts and circumstances of the
case.
3
Section 121 of IPC
4
Section 354A of IPC.
5
Section 375. There are two parts of definition of rape namely;
(1) Prohibited act committed by accused ( Section 375 (a),(b),(c) and (d), and
(2) mental condition of victim rather than accused (Section 375 Firstly,
secondly………..seventhly).
6
Ranjit D.Udeshi v. State of Maharashtra (SC 1964).
7
In the case of Nathu Lal v. State of M.P. (1965)Supreme Court presumed presence of mens rea. To
override this judgment Essential Commodities Act, 1955 were amended in 1967. After this amendment
State of M.P. v. Narayan Singh (1989) were decided and Supreme Court did not apply the maxim
because law was very clear.
8
State of Maharashtra v. M.H. George (SC 1964)
9
Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, Additional Collector of Customs, Calcutta (SC
1964)

Krishna Murari Yadav, Assistant Professor, LAW CENTRE – I, FOL, DU

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Schools of Mens Rea (Interpretation of statutes)

There are two schools regarding interpretation of statutes in context of mens rea. These Schools
shall be applicable only when statutory provisions are silent about mens rea.
These Schools are

(1) Presumption of Existence of Mens Rea, and

(2) Presumption of Absence of Mens Rea. Both presumptions are rebuttable.

(1) Presumption of existence of Mens Rea- In every Statute mens rea should be treated
as part of crime unless contrary is shown. Existence of Mens Rea is presumed. In case
of Q. v. Tolson court acquitted lady on the ground of her innocent. She got marriage
after full inquiry. But Court also accepted that by statute mens rea may be excluded.
This theory was led by Justice Wright in case of Sherras v. De Rutzen (1895). In case
of Sherras v. De Rutzen (1895) Justice Wright said “In every statute mens rea is to be
implied unless contrary is shown”. In case of Brend v. Wood (1946), Justice Goddard,
“The general rule applicable to criminal case is actus non facit reum, nisi mens sit
rea…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 the statute, either clearly or by necessary
implication rules out mens rea as a constituent part of a crime, a defendant should not
be found guilty of an offence against the criminal law unless he has got a guilty mind”.
Principle of mens rea was revived by Justice Goddard. In the case of Nathu Lal v. State
of M.P.10 (1965) Supreme Court acquitted the accused on the basis of absence of mens
rea.

Rebuttal of presumption
In Halsbury’s Laws of England, 3rd Edn., Vol. 10, in para 508, at p. 273, the
following passage appears: A statutory crime may or may not contain an express
definition of the necessary state of mind. A statute may require a specific intention,
malice, knowledge, willfulness, or recklessness.
On the other hand, it may be silent as to any requirement of mens rea, and in such a
case in order to determine whether or not mens rea, is an essential element of the offence
it is necessary to look at the objects and terms of the statute.
Archbold in his book on Criminal Pleading, Evidence and Practice, says “There is a
presumption that mens rea, is an essential ingredient in a statutory offence, but this
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.
In the case of Brend v. Wood Justice Goddard said that this presumption can be
rebuted by statute either clearly or by necessary implication.

10
This case was decided by Supreme Court on March 22, 1965.

Krishna Murari Yadav, Assistant Professor, LAW CENTRE – I, FOL, DU

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i. Cases related to Presumption of existence of Mens Rea

S.No. Name of Case Justice Year

1 Fowler v. Padget Lord Kenyon 1798
2 R. v. Tolson Justice Wills 1889
3 Sherras v. De Rutzen Justice Wright 1895
4 Brend v. Wood Justice Goddard 1946
5 Nathu Lal v. State of M.P. Justice Subba Rao 1965

(2) Presumption of absence of Mens Rea- According to second School, statute must be
interpreted in absence of mens rea unless requirement of mens rea has been specifically
mentioned. On the basis of this theory Justice Blackburn decided the R.v. Prince (1875)
and he convicted the accused who had no guilty mind. Accused believed that the girl
was 18 year while real age of girl was 14 year. At that time taking of girl below the age
of 16 years out of keeping of lawful guardian was crime. Appearance of Girl was age
of 18 years. Court denied to accept Actus non facit reum, nisi mens sit rea (Common
Law Doctrine). This theory was led by Justice Kennedy in Hobbes v. Winchester
Corporation (1910). In case Ranjit D.Udeshi v. State of Maharashtra (1964) books
seller was punished under section 292 of IPC.
In the case of State of Maharashtra v. M.H.George11 (1964) Supreme Court convicted
the accused. Justice K.Subba Rao delivered minority opinion.

ii. Cases related to Presumption of absence of Mens Rea

S.No. Name of Case Hon’ble Justice Year

1 R. v. Prince Justice Blackburn 1875
2 Hobbes v. Winchester Corporation Kennedy 1910
3 The Indo-China Steam Navigation Co. B P Sinha Feb. 3, 1964)
Ltd. v. Jasjit Singh, Addl. (Constitutional Bench
4 Ranjit D.Udeshi v. State of Maharashtra Hidayatullah Aug. 19, 1964
(Constitutional
Bench)
5 State of Maharashtra v. M.H.George K. Ayyangar Aug. 24, 1964
(Full Bench)

11
This case was decided by Supreme Court on August 24, 1964.

Krishna Murari Yadav, Assistant Professor, LAW CENTRE – I, FOL, DU

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INTENTION, KNOWLEDGE & MOTIVE

Intention
There are two elements namely.
(1) Desire of consequence, and
(2) Foresight of consequences.
Knowledge
There is only one element namely, Foresight of consequences. In knowledge desire
of consequences is missing. It is presumed that every sound person has knowledge.
Motive
Neither bad motive nor good motive is relevant to constitute offence. It is relevant
under section 8 of Indian Evidence Act. Motive prompts a person to do something. Sometime
offence is committed with motive and sometimes without motive. Intention refers to the
immediate object, while motive refers to the ulterior object which is at the root of intention.
Negligence
Negligence is not taking care, where there is a duty to take care. Negligence or
Carelessness indicates a state of mind, viz. absence of a desire to cause a particular
consequence.

Recklessness
Recklessness occurs when the actor does not desire the consequence but foresees the possibility
and consciously takes the risk.

(Previous Year Question Paper 2013. LLB-DU)

Question 1. Write short notes on any two of the followings:

(a) Explain and illustrate distinction amongst ‘motive’, ‘intention’ and ‘knowledge’.
Answer - Distinction amongst ‘motive’, ‘intention’ and ‘knowledge’
According to Stephen “Intention is an operation of the will directing an overt act; motive is
the feeling which prompts the operation of the will, the ulterior object of the person willing,
e.g., if a person kills another, the intention directs the act which causes death, the motive is
object which the person had in view, i,g., the satisfaction of some desire, such as revenge etc.”
According to Austin “The intention is the aim of the act, of which the motive is the spring.”
Basdev v. The State of Pepsu (17 April, 1956 S. C)12
In this case Supreme Court said, “Motive is something which prompts a man to form an
intention and knowledge is an awareness of the consequences of the act. In many cases
intention and knowledge merge into each other and mean the same thing more or less and
intention can be presumed from knowledge. The demarcating line between knowledge and
intention is no doubt thin but it is not difficult to perceive that they connote different things.”
Neither bad motive nor good motive is relevant to constitute offence. It is relevant under section
8 of Indian Evidence Act. Motive prompts a person to do something. Sometime offence is

12
The accused was prosecuted for a kill a boy in marriage ceremony during dispute for seat.

Krishna Murari Yadav, Assistant Professor, LAW CENTRE – I, FOL, DU


committed with motive and sometimes without motive. Intention refers to the immediate
object, while motive refers to the ulterior object which is at the root of intention.
There are following differences among motive, intention and knowledge -
Grounds Motive
(1) Motive is the feeling
Definition which prompts the
operation of the will.
Illustration if a person kills another,
the intention directs the
act which causes death,
the motive is object which
the person had in view,
i,g., the satisfaction of
some desire, such as
revenge etc.
2 It is the ulterior object
3 Motive is not part of
crime. So either good
motive or bad motive
shall not commission of
offence. It means
presence or absence of
motive is not relevant to
constitute offence. It is
relevant to decide
quantum of punishment.
It is relevant under
section 8 of Indian
Evidence Act.
Example A removes a cow
belonging to B to save her
from being slaughtered. A
will be liable for theft if
Krishna Murari Yadav, Assistant Professor, LAW CENTRE – I, FOL, DU
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Intention Knowledge
Intention is an operation of Knowledge is only
the will directing an overt foresight of
act. Intention is the consequences. Here
combination of desire and desire is missing.
foresight of consequences.
A with desire to kill B threw A without desire to
from fourth floor to ground. kill B and for saving
He foresighted that throwing life threw from
from fourth floor was likely fourth floor to
to cause death. So in this ground. He
case in presence of desire foresighted that
and foresight there is throwing from fourth
intention. floor was likely to
cause death. So in
this case in absence
of desire and
presence of foresight
is involved. So it is
knowledge.
It is immediate object. It is immediate
object.
Presence or absence of It is also relevant.
intention is very relevant.
Rule is that “Actus non facit
reum, nisi mens sit rea”
A is in a house which is on
fire, with Z, a child. People
below hold out a blanket. A
drops the child from the
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other condition of theft are house-top, knowing it to be

being fulfilled. His good likely that the fall may kill
motive cannot save him. the child, but not intending
to kill the child, and
intending, in good faith, the
child’s benefit. Here, even if
the child is killed by the fall,
A has committed no
offence.
4 A crime committed with A crime committed
Gravity intention is more serious. with knowledge is
Example sec. 304 Part One lesser serious in
comparison with
intention.
Example sec. 304
Part Two.

DU LL.B 2016
Motive v. Intention
Motive and intention both are different. There are following differences -
Motive Intention
1 Motive is the feeling which prompts the Intention is an operation of the will
operation of the will. directing an overt act.
Intention is the combination of desire and
foresight of consequences.
2 It is the ulterior object. It is immediate object.
3 Motive is not part of crime. So either good Presence or absence of intention is very
motive or bad motive shall not be relevant for relevant. Rule is that “Actus non facit reum,
commission of offence. It means presence or nisi mens sit rea”
absence of motive is not relevant to constitute
offence. It is relevant to decide quantum of
punishment. It is relevant under section 8 of
Indian Evidence Act.

Krishna Murari Yadav, Assistant Professor, LAW CENTRE – I, FOL, DU

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Question 8(b) –
Write short notes –
(b) Bring out clearly the differences between motive and intention.

Differences between motive and intention

Motive Intention
(1) Motive is the feeling which prompts the Intention is an operation of the
Definition operation of the will. will directing an overt act.
Intention is the combination of
desire and foresight of
consequences.
Illustration if a person kills another, the intention directs A with desire to kill B threw
the act which causes death, the motive is object from fourth floor to ground. He
which the person had in view, i,g., the foresighted that throwing from
satisfaction of some desire, such as revenge fourth floor was likely to cause
etc. death. So in this case in
presence of desire and foresight
there is intention.
2 It is the ulterior object It is immediate object.
3 Motive is not part of crime. So either good Presence or absence of
motive or bad motive shall not commission of intention is very relevant. Rule
offence. It means presence or absence of is that “Actus non facit reum,
motive is not relevant to constitute offence. It nisi mens sit rea”
is relevant to decide quantum of punishment. It
is relevant under section 8 of Indian Evidence
Act.
Example A removes a cow belonging to B to save her A is in a house which is on fire,
from being slaughtered. A will be liable for with Z, a child. People below
theft if other condition of theft are being hold out a blanket. A drops the
fulfilled. His good motive cannot save him. child from the house-top,
knowing it to be likely that the
fall may kill the child, but not
intending to kill the child, and
intending, in good faith, the
child’s benefit. Here, even if
the child is killed by the fall, A
has committed no offence.

Krishna Murari Yadav, Assistant Professor, LAW CENTRE – I, FOL, DU

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Question 1 (2017)
In State of Maharashtra v. M.H. George, AIR 1965 SC 722 the majority did not hold mens rea
to be an essential ingredient of an offence under section 23(1-A) of the FERA, 1947. Whereas
Justice Subba Rao in his dissenting opinion held so. Discuss and State the reasons for their
difference of opinion. Which opinion do you agree with and why?

Answer –
State of Maharashtra v. M.H. George (August 24, 1964)

Facts - Mayer Hans George, a German Smuggler, left Zurich (Famous city of
Switzerland) by plane on 27th November 1962 with 34 kilos of gold concealed on his person to
be delivered in Manila (Capital of Philippines). The plane arrived in Bombay on the 28th but
the respondent did not come out of the plane. The customs authorities examined the manifest
of the aircraft to see if any gold was consigned by any passenger, and not finding any entry
they entered the plane, searched the respondent, recovered the gold and charged him with an
offence under ss. 8(1) and 23(1-A) of the Foreign Exchange Regulation Act, 1947 read with a
notification dated 8th November 1962 of the Reserve Bank of India which was published in the
Gazette of India on 24th November.
Important Places
Germany Smuggler was citizen of Germany
Zurich George left Zurich to Manila
Bombay He was arrested in Bombay airport
Manila His final destination was Manila
Important Dates
Nov. 24, 1962 RBI published notification
Nov.27, 1962 George left Zurich to Manila
Nov.28, 1962 George was arrested at 6.05 a.m.
August 24, 1964 George was convicted by Supreme Court
Objects of Act
1 To prevent smuggling of gold
2 To converse foreign exchange
3 To protect national economy of country
In State of Maharashtra v. M.H. George13several cases were argued on both sides. In this cases,
near about 20 cases were discussed. These cases are –
 Fowler v. Padget (1798) (Lord Kenyon)
 R. v. Prince (1875) (Blackburn)
 R. v. Tolson (1889) (Wills)
 Sherras v. De Rutzen (1895) (Wright )
 Hobbs v. Winchester Corp. (1910) Kennedy
 Brend v. Wood (1946) (Goddard) - Revival of Mens rea
 The Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, Addl. (February 3, 1964)
 Ranjit D. Udeshi v. State of Maharashtra (August 19, 1964)

13
AIR 1965 SC 722
Krishna Murari Yadav, Assistant Professor, LAW CENTRE – I, FOL, DU
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There are some leading cases related to elements of crime –

Fowler v. Padget14 (1798) (Lord Kenyon)

Actus reus (prohibited act) and mens rea (guilty mind) both are essentials for commission of
crime. Lord Kenyon said, “It is a principle of natural justice, and of our law, that actus non
facit reum nisi mens sit rea. The intent and the act must both concur to constitute the crime”.15
This case was related to bankruptcy.

R. v. Prince16 (1875) (Blackburn)

Facts - Henry Prince was charged under section 5517 of the Offences Against the Persons Act,
1861.18 This section was related to abduction. There was no any category of offence like
kidnapping under this Act. At that time unlawfully taking of a girl below the age of sixteen
years without permission of lawful guardian was an offence. It was proved that the prisoner
took the girl whose age was below the age of sixteen years from out of possession of lawful
guardians without their permission.19 Real age of girl was 14 years. Actus reus was present but
mens rea was absent. Accused proved that he took the girl who was looking age of 18 years
and he took with consent and after her replying that her age was 18 years. He did in good faith.
Actual Age of Girl 14 Years
Abduction Under the age of 16 years
She appears/ Accused thought Near about 18 years

Decision - Court denied these defences. This section had not mention about mens rea i.e.
intention, knowledge, reason to believe etc. Justice Blackburn denied applying the maxim
Actus non facit reum, nisi mens sit rea and held that the provision did not require guilty
intention or knowledge so Court could not insert requirement of intention or knowledge only
on the basis of maxim. So Prince was convicted even without guilty mind. Principle of strict
liability was followed.

R. v. Tolson20 (1889) (Wills) (Koi Mere Dil Se Puchhe – Hindi Movie)

14
(1798)7 TLR 509(514):101 ER 1103
15
K D Gaur, Textbook on Indian Penal Code, 107 (LexisNexis, Gurgaon, 6th edn., 2016).
16
(1875) L.R. 2 C.C.R. 154
17
Section 55 of Offences Against the Persons Act, 1861 - Abduction of a girl under sixteen years of
age - Whosoever shall unlawfully take or cause to be taken any unmarried girl, being under the age of
sixteen years, out of the possession and against the will of her father or mother, or of any other person
having the lawful care or charge of her, shall be guilty of a misdemeanor, and being convicted thereof
shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years,
with or without hard labour.
18
Offences Against the Persons Act, 1861 is available at:
http://www.legislation.gov.uk/ukpga/1861/100/pdfs/ukpga_18610100_en.pdf (Visited on August 31,
2018.
19
S.N. Mishra, Indian Penal Code …(Central Law Publications, Allahabad, 20th edn, 2017).
20
(1889) 23 QBD 168: (1886-1890)All ER Rep 26.

Krishna Murari Yadav, Assistant Professor, LAW CENTRE – I, FOL, DU

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Facts – Mrs. Tolson married in Sept 1880. Her husband went missing in December
1881. She was told that he had been on a ship that was lost at sea. She also inquired from elder
brother of her husband. Six years later, believing her husband to be dead, she married another.
All the circumstances were well known to second husband. Her husband returned after 11
months from the date of marriage. She was charged with the offence of bigamy under section
57 of ‘Offences Against the Persons Act, 1861’.21 Reason was that she had got second marriage
within 7 years. She did in good faith. This section was silent regarding guilty mind.
Held: She was afforded the defence of mistake as it was reasonable in the circumstances to
believe that her husband was dead. She was acquitted.
Reason- Honest and reasonable mistake stands in fact of the same footing as absence
of the reasoning faculty, as in infancy; preservation of that faculty , as in lunacy. These
exceptions apply equally in case of statutory offences unless they are excluded expressly or be
necessary implication. The Court applied the Actus non facit reum, nisi mens sit rea.
Justice Wills, said “Although, prima facie and as a general rule, there must be 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”.

Sherras v. De Rutzen22 (1895) (Wright )

Fact-Section 16(2) of the Licensing Act, 1872, prohibited a licensed victualler
(victualler means supplier of foods fit for human being) from supplying liquor to a police
constable while on duty. It was held that section did not apply where a licensed victualler bona
fide believed that the police officer was off duty.
Justice Wright said –
(1) “There is a presumption that mens rea, an evil intention, or knowledge of the
wrongfulness of the act, is an essential ingredient in every offence.”
(2) “In every statute mens rea is to be implied unless contrary is shown”
(3) “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, and both must be considered.”

R. v. Prince Section 55, Offences Against Person Act, Abduction

1861
R.v. Tolson Section 57, Offences Against Person Act, Bigamy
1861
Sherras v. De Rutzen Section 16(2), The Licensing Act, 1872, Selling of liquor to
prohibited buyer

21
Offences Against the Persons Act, 1861 is available at:
http://www.legislation.gov.uk/ukpga/1861/100/pdfs/ukpga_18610100_en.pdf (Visited on August 31,
2018.
22
(1895) 1QB 918

Krishna Murari Yadav, Assistant Professor, LAW CENTRE – I, FOL, DU

 15

Hobbs v. Winchester Corp. (1910) Kennedy

Kennedy said, “You ought to construe the statute literally unless there is something to
show that mens rea is required.”

Brend v. Wood (1946) (Goddard) - Revival of Mens rea

Goddard C. J. “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 the statute, either clearly or
by necessary implication rules out mens rea as a constituent part of a crime, a defendant should
not be found guilty of an offence against the criminal law unless he has got a guilty mind”.

The Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, Addl. (February 3, 1964)
This case is related to smuggling of gold. Chief Justice Gajendragadkar said, “The
intention of the legislature in providing for the prohibition prescribed by section 52 A of the
Sea Customs Act is, inter alia, to put an end to illegal smuggling which has the effect of
disturbing very rudely the national economy of the country. It is well-known, for example, that
smuggling of gold has become a serious problem in this country and operations of smuggling
are conducted by operators who work on an international basis. The persons who actually carry
out the physical part of smuggling gold by one means or another are generally no more than
agents and presumably, behind them stands a well- knit Organisation which, for motives of
profit making, undertakes this activity.”

Ranjit D. Udeshi v. State of Maharashtra (August 19, 1964)

Selling of ‘Lady Chatterley’s Lover’ book was prohibited in India. Seller was convicted
under section 292 of IPC for selling this book, although he had no knowledge of this book.
Strict liability was imposed.

DECISION OF M.H. GEORGE CASE

Supreme Court examined several British and Indian Cases. All the cases have been discussed
above. Purpose of FERA, 1947 was to prevent smuggling. This case is related to economic
condition of country. So Supreme Court did not apply the maxim and applied the strict liability
principle.
Majority Opinion - N. Ayyangar and J.R. Rajagopala Mudholkar convicted the accused.
Minority Opinion - Justice K. Subba Rao said that M.H. George had no intention to commit
crime in India. So he was not guilty.

Remarks – In the M.H. George Case all abovementioned cases have been discussed. So at the
time writing of answer related to M.H. George case all cases must also be discussed.
Decision of Courts
Presidency Court George was convicted
Bombay High Court George was acquitted
Supreme Court George was convicted

Krishna Murari Yadav, Assistant Professor, LAW CENTRE – I, FOL, DU

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Important Provisions

The Indo-China Steam Section 52A, Sea Customs Smuggling of gold

Navigation Co. Ltd. v. Jasjit Act, 1878
Singh
Ranjit D.Udeshi v. State of Section 292, IPC Selling of obscene book
Maharashtra
State of Maharashtra v. FERA, 1947 Smuggling of gold
M.H.George

Nathu Lal v. State of M.P.23 (22 March 1965)

Facts - The appellant is a dealer of food grains at Dhar in Madhya Pradesh. He was
prosecuted in the Court of the Additional District Magistrate, Dhar, for having in stock 885
maunds and 21/4 seers of wheat for the purpose of sale without a licence and for having thereby
committed an offence under section 7of the Essential Commodities Act, 1955. The appellant
pleaded that he did not intentionally contravene the provisions of the said section on the ground
that he stored the said grains after applying for a licence and was in the belief that it would be
issued to him.
Reason – Supreme Court said, “Mens rea is an essential ingredient of a criminal
offence. Doubtless 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 excluded mens rea.”24
Decision - He was acquitted because he had without any guilty mind.25 Unless statute expressly
exclude, law should be construed as including mens rea.
Effect of Decision - After this case section 7 of Essential Commodities Act was
amended in 1967 and mens rea was excluded. “whether knowingly, intentionally or otherwise”
were inserted.
Essential Commodities (Amendment) Act, 1967
After the decision of Nathu Lal case big problem arose before country. At that time India was
facing acute shortage of food grains. There were several reasons of this namely; Indo-China
War, famine, increasing tension & war on Indo-Pak border and denial of USA to export grains.
USA was creating pressure in favour of Pakistan.
In the Nathu Lal Case Supreme Court held person would not be punished without guilty mind.
So this Act was amended. After amendment statute is very clear. Person will be punished even
without guilty mind.

23
AIR 1966 SC 43.
24
S.N. Mishra, Indian Penal Code 21 (Central Law Publications, Allahabad, … edn, 2006).
25
S.N. Mishra, Indian Penal Code 22 (Central Law Publications, Allahabad, … edn, 2006).

Krishna Murari Yadav, Assistant Professor, LAW CENTRE – I, FOL, DU

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State of M.P. v. Narayan Singh26 (25 July 1989)

Facts – Essential Commodities Act, 1955 were amended in 1967. The respondents
who were lorry drivers, cleaners and coolie were carrying fertiliser bags in trucks from Indore
(Madhya Pradesh) to Maharashtra. They were intercepted at a Sales Tax Barrier near the border
of Maharashtra State. The documents seized from the lorry drivers contained the invoices and
other records but did not include permits issued under the Fertilisers (Movement Control)
Order, 1973. Consequently, they were prosecuted under the Fertiliser (Movement Control)
Order, 1973
read with section 3 and 7 of the of the Essential Commodities Act, 1955 for exporting fertilisers
from Madhya Pradesh to Maharashtra without a valid permit. They were charged under section
511.
Decision – There are following decisions of Supreme Court on following points -
(1) Mens Rea -The words used in section 7 (1) are “if any person contravenes whether
knowingly, intentionally or otherwise any Order made under section 3”. The section is
comprehensively worded so that it takes within its fold not only contraventions done
knowingly or intentionally but even otherwise, i.e., done unintentionally. The element
of mens rea in export of fertiliser bags without a valid permit is therefore not a
necessary ingredient for convicting a person for contravention of an order made under
Sec. 3 if the factum of export or attempt to export is established by the evidence on
record.
(2) Attempt – This was case of attempt. Whatever has been done was beyond preparation.
(3) Only conviction but not punishment -Supreme Court set aside the order of acquittal
by Trial Court and High Court and convicted the accused. But did not pass any order
of punishment. Reason was that more than fifteen years have gone by since they were
acquitted by the Trial Magistrate. The learned counsel for the appellant State was more
interested in having the correct position of law set out than in securing punishment
orders for the respondents in the two appeals for the offence committed by them.

Section 7, The Essential

Nathu Lal v. State of M.P. Unauthorized store of food
Commodities Act, 1955 grains (Wheat)
State of M.P. v. Narayan Section 7, The Essential Carrying fertiliser bags in
Singh Commodities Act, 1955 (as trucks without permission
amended in 1967).

IMPORTANT MAXIMS RELATED TO CRIMINAL LAW

Pro Reo
Whenever any penal law is applied or construed, and that law is giving two
interpretation, one lenient to the offender and one strict to the offender, that interpretation
which is lenient or favorable to the offender will be adopted.
Nullum Crimen Sine Lege, Nulla Poena Sine Lege27 (No crime without law, no punishment
without law)

26
AIR 1989 SC 1789.
27
UGC NET Nov. 2017.

Krishna Murari Yadav, Assistant Professor, LAW CENTRE – I, FOL, DU

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According to this maxim there must be no crime or punishment, except in accordance

with fixed predetermined law. This maxim conveys four different rules, namely,
(1) Non retroactivity of penal laws: It means penal laws which are against the interest of
accused will not be applied from retrospective effect. But it does not prohibit accused
form taking benefit of retrospective laws. In the case of Rattan Lal v. State of Punjab
(1965) Supreme Court also interpreted article 20 (1) and said that “Ex post facto laws
which are beneficial to the accused is not prohibited by Art. 20(1) of the Constitution.
In this case Justice Subba Rao said, “The object of criminal law is more to reform the
individual offender than to punish him.
(2) Penal statutes must be construed strictly: Penal statutes must be construed strictly. It
directly affects Fundamental Rights. So, it must be construed strictly.
(3) Certainty in legislation: It should not be construed in such a way as to cover every act.
(4) Accessibility of the laws: Laws are binding over every people. So, it must be published
in proper way so that every people may know it. Harla v. State of Rajasthan (1952)
Supreme Court said, “It would be against the Principle of natural justice to permit the
subjects of a State to be penalized by laws of which they had no knowledge and of
which they could not even with the exercise of due diligence have acquired any
knowledge . Natural justice required that before a law can be operative it must be
promulgated and published.”

Krishna Murari Yadav, Assistant Professor, LAW CENTRE – I, FOL, DU

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Stages of Crime
If a person commits a crime voluntarily, it involves four important stages, viz.

(1). Intention of Contemplation

(2). Preparation
(3). Attempt; and
(4). Commission of Crime or accomplishment / execution. The first two stages
would not attract culpability but the third and fourth stages would certainly
attract culpability.28

(1) Intention - Intention is mental status, which cannot be traced, so mere intention is not
punishable.
(2) Preparation - Generally preparation is also not punishable. But there are some
exceptional cases when at the stage of preparation; offence is punishable, namely,
I. Preparation to wage war against the Government (Section 122)
II. Anyone commits damages to the property and destruction of property within
the territories of our country and the country which is with peace with our
government (Sec. 126)
III. Preparation for counterfeiting of coins or Government Stamps (Sections 233 to
235), 255 and 257.
IV. Possessing counterfeit coins, false weights or measurements and forged
documents (Section 242, 243, 259, 266 and 474)
V. Making preparation to commit dacoity (Section 399).
(3) Attempt – Attempt is called inchoate crime (incomplete crime). It is punishable.
(4) Execution of Offence – When an offender achieved his desired goal i.e. called
execution of an offence.

28
State of Madhya Pradesh v. Narayan Singh & Ors , AIR 1989 SC 1789

Krishna Murari Yadav, Assistant Professor, LAW CENTRE – I, FOL, DU

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Question1 (2011)
Explain the common law principle of “actus non facit reum, nisi mens sit rea” with the help of
decided case. What are the exceptions, if any, to this principle?

Answer
Actus non facit reum , nisi mens sit rea
Actus non facit reum, nisi mens sit rea means the act itself does not make a man guilty, unless
the mind is also guilty. This theory was developed be Common Law Courts. First time concept
of Mens Rea was discussed by Justice Coke. In case of Fowler v. Padget (1798) Lord Kenyon
held that actus reus and mens rea both are essentials for commission of crime. There are four
essential ingredients of crime, namely,(1) Human Being (2) Guilty Mind (3) Prohibited act,
and (4) An injury to human being or society. This maxim denotes that guilty mind and
prohibited act both are part and parcel of crime. In the case of Nathulal v. State of Madhya
Pradesh (1965) Justice Subba Rao observed, “Mens rea is an essential ingredient of a criminal
offence. Doubtless 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 excluded mens rea.” Justice Subba Rao also delivered
same view in minority opinion of M.H.George Case (1964).
It is rule that without guilty mind, crime cannot be committed. There are also certain
exceptions.
If maxim applies – In case of application of this maxim, accused person would be benefited
and there would be utmost probability of to win the case because prosecutor would be bound
to prove prohibited act and guilty mind.
In the case of Brend v. Wood (1946) Chief Justice Goddard observed the benefit of application
of this maxim and said that application of this maxim is of the utmost importance for the
protection of the liberty of the subjects (citizens).
If maxim does not apply - It would be very easy for prosecutor to win the case because he
would be bound to prove only one condition i.e. prohibited act. To prove guilt mind always
very difficult. It in such case there would be a lot of harm for accused.

Schools of Mens Rea (Interpretation of statutes)

There are two schools regarding interpretation of statutes in context of mens rea. These Schools
are (1) Presumption of existence of Mens Rea, and (2) Presumption of absence of Mens Rea.
Both presumptions are rebuttable.
(1) Presumption of Requirement of Mens Rea- In every Statute mens rea should be treated
as part of crime unless contrary is shown. Existence of Mens Rea is presumed. In case of Q. v.
Tolson court acquitted lady on the ground of her innocent. She got marriage after full inquiry.
But Court also accepted that by statute mens rea may be excluded. This theory was led by
Justice Wright in case of Sherras v. De Rutzen (1895). In case of Sherras v. De Rutzen (1895)
Justice Wright said “In every statute mens rea is to be implied unless contrary is shown”. In
case of Brend v. Wood (1946), Justice Goddard, “The general rule applicable to criminal case

Krishna Murari Yadav, Assistant Professor, LAW CENTRE – I, FOL, DU

 21

is actus non facit reum nisi mens sit rea…It is of the of the utmost importance for the protection
of the liberty of the subject that a 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 a crime,
a defendant should not be found guilty of an offence against the criminal law unless he has got
a guilty mind”. Principle of mens rea was revived by Justice Goddard. In the case of Nathu
Lal v. State of M.P. (1965) Supreme Court acquitted the accused on the basis of absence of
mens rea.

(2) Presumption of Non-requirement of Mens Rea- According to second School, statute

must be interpreted in absence of mens rea unless requirement of mens rea has been specifically
mentioned. On the basis of this theory Justice Blackburn decided the R.v. Prince (1875) and
he convicted the accused who had no guilty mind. Accused believed that the girl was 18 year
while real age of girl was 14 year. At that time taking of girl below the age of 16 years out of
keeping of lawful guardian was crime. Appearance of Girl was age of 18 years. Court denied
to accept Actus non facit reum , nisi mens sit rea (Common Law Doctrine). This theory was
led by Justice Kennedy in Hobbes v. Winchester Corporation (1910). In the case of State of
Maharashtra v. M.H.George (1964) Supreme Court convicted the accused. Justice K.Subba
Rao delivered minority opinion.
Exceptions of Actus non facit reum, nisi mens sit rea
Sometimes offence is constituted even without guilty mind it is called strict liability. Judges
applies this principle only when statutory provisions are silent on the intention of accused.
Application and non-application of this maxim depends upon sound logic and reasonable
discretion of judges.There are certain exceptions of Actus non facit reum, nisi mens sit rea.
These exceptions are following -
(1) Sale, etc., of obscene books (Section 292 of IPC) – Section 292 deals sale, etc., of obscene
books, etc. In the case of Ranjit D.Udeshi v. State of Maharashtra (August 19, 1964) Supreme
Court convicted seller under section 292 for selling Lady Chatterley’s Lover book, although
he had no knowledge of this book. The Court held that in section 292 of IPC unlike several
other sections did not contain the words knowingly, or negligently etc. ‘Principle of Strict
Liability’ was applied.

(2) Sexual Harassment (Section 354A of IPC) - Sexual Harassment has been provided under
section 354A which was inserted by Criminal Law (Amendment) Act, 2013. In this section
nothing has been mentioned about guilty mind of accused. SO in this case principle of strict
liability will be applicable. Section 354A deals about sexual harassment.
(3) Kidnapping from lawful guardianship (Section 361 of IPC) - Section 361 of IPC deals
kidnapping from lawful guardianship. Mental condition of accused is immaterial. Whether
accused is doing in good faith or not wholly irrelevant.
In the case of R. v. Prince (1875) Justice Blackburn said that section 55 of the Offences Against
the Persons Act, 1861 had not mention about mens rea. He denied applying the maxim Actus
non facit reum, nisi mens sit rea and held that the provision did not require guilty intention or
knowledge so the Court could not insert requirement of intention or knowledge only on the
basis of maxim. So Prince was convicted even without guilty mind. Principle of strict liability
was followed.

Krishna Murari Yadav, Assistant Professor, LAW CENTRE – I, FOL, DU

 22

(4) Bigamy (Section 494 of IPC) - Whoever, having a husband or wife living, marries in any
case in which such marriage is void by reason of its taking place during the life of such husband
or wife, shall be punished with imprisonment of either description for a term which may extend
to seven years, and shall also be liable to fine.
(5) Economic offences – Economic offences affect not only develop of nation and life of
citizens but also integrity and sovereignty of nation. In the case of State of Maharashtra v.
M.H.George (1964) majority opinion of Supreme Court observed, “The Foreign Exchange
Regulation Act, 1947 is designed to safeguarding and conserving foreign exchange which is
essential to the economic life of a developing country. The provisions have therefore to be
stringent and so framed as to prevent unauthorized and unregulated transactions which might
upset the scheme underlying the controls; and in a larger context, the penal provisions are aimed
at eliminating smuggling which is a concomitant of controls over the free movement of goods
or currencies.” The Court further said that 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 of mens rea were to be read into the plain reading of the enactment. In this case
“Principle of strict liability was applied and accused was convicted.
(6) Public Health –

In the case of Pyarali K. Tejani v. Mahadeo Ramchandra Dange and Others (Oct. 31, 1973 S
C) Supreme Court said that It is trite law (Trite law means laws that are obvious or common
knowledge) that in food offences strict liability is the rule not merely under the Indian Law but
the entire world over. Nothing more than the actus reus is needed where, regulation of private
activity in vulnerable areas like public health is intended. Social defence reasonably
overpowers individual freedom to injure, in special situations of strict liability. Section 7 of
Prevention of Food Adulteration Act, 1954 casts an absolute obligation regardless of scienter,
bad faith and mens rea. If you have sold any article of food contrary to law, you are guilty. The
law denies the right of a dealer to rob the, health of a supari consumer.

State of M.P. v. Narayan Singh (25 July 1989) -Essential Commodities Act, 1955 were
amended in 1967 to nullify the judgment of Nathulal v.State of Madhya Pradesh (1965). The
words used in section 7 (1) are “if any person contravenes whether knowingly, intentionally or
otherwise any Order made under section 3”. The section is comprehensively worded so that it
takes within its fold not only contraventions done knowingly or intentionally but even
otherwise, i.e., done unintentionally. Principle of strict liability was applied in the case of State
of M.P. v. Narayan Singh (1989).

American Jurisprudence
Jurisprudence of application of strict liability in adulterated food has been explained in
American Jurisprudence (2d, Vol. 35, p. 864) which are following “The distribution of impure
or adulterated food for consumption is an act perilous to human life and health, hence, a
dangerous act, and cannot be made innocent and harmless by the want of knowledge or by the
good faith of the seller; it is the act itself, not the intent, that determines the guilt, and the actual
harm to the public is the same in one case as in the other. Thus, the seller of food is under the
duty of ascertaining at his peril whether the article of food conforms to the standard fixed by

Krishna Murari Yadav, Assistant Professor, LAW CENTRE – I, FOL, DU

 23

statute or ordinance, unless such statutes or ordinances, expressly or by implication, make

intent an element of the offence.”

Question1 (2013) & Question1 (2015)

“The nature of mens rea that will be implied in a statute creating an offence depends upon the
object of the Act and provisions thereof.” Discuss with the help of decided cases.

Answer
Actus non facit reum, nisi mens sit rea is accepted by all over world subject to statutory
provisions. Question arises when statute is silent about guilty mind of accused whether mens
rea should be treated part of statute or not. It has been observed that in certain cases Judges has
incorporated it as a part of statute and in certain cases not. For example in the case of
M.H.George majority opinion did not borrow this maxim. Justification was given by majority
opinion was that object of FERA was prevent economic condition of country.
Lord Simonds (Halsbury’s Laws of England)
In Halsbury’s Laws of England written by Lord Simonds (3rd edn. Vol. 10, in para, 508, at p.
273,) the following passage appears: “A statutory crime may or may not contain an express
definition of the necessary state of mind. A statute may require a specific intention, malice,
knowledge, willfulness or recklessness. On the other hand, it may be silent as to any
requirement of mens rea, and in such a case in order to determine whether or not mens rea is
an essential element of the offence, it is necessary to look at the objects and terms of the
statute.”

Archbold (Criminal Pleading, Evidence and Practice)

Archbold in his book on “Criminal Pleading, Evidence and Practice”, 35th edn., says much to
the same effect at p. 24 thus: “It has always been a principle of the common law that mens rea
is an essential element in the commission of any criminal offence against the common law In
the case of statutory offences it depends on the effect of the statute...... There is a presumption
that mens era is an essential ingredient in a statutory offence, but this presumption is liable to
be displaced either by the works of the statute creating the offence or by the subject matter with
which it deals.”
Sherras v. De Rutzen (1895)
Wright J., observed “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, and both must be considered.”
The Indo-China Steam Navigation Co. Ltd., v. Jasjit Singh (Feb. 03, 1964 Supreme Court)
The Indo-China Steam Navigation Co. Ltd., which carries on the business of carriage of goods
and passengers by sea, owns a fleet of ships, and has been carrying on its business for over 80
years. One of he routes plied by its ships in the Calcutta - Japan-Calcutta route. 'Me vessel
“Eastern Saga” arrived at Calcutta on October 29, 1957. On a search it was found that a hole

Krishna Murari Yadav, Assistant Professor, LAW CENTRE – I, FOL, DU

 24

was covered with a piece of wood and over painted and when the hole was opened a large
quantity of gold in bars was discovered. Gold was confiscated.
This Court in construing the scheme and object of the Sea Customs Act came to the conclusion
that mens rea was no a necessary ingredient of the offence, as, if that was so, the statute would
become a dead-letter. That decision was given on the basis of the clear object of the statute and
on a construction of the provisions of that statute which implemented the said object.
Supreme Court said, “The intention of the legislature in providing for the prohibition prescribed
by Section 52A of Sea Custom Act, 1878, is, inter alia, to put an end of illegal smuggling which
has the effect of disturbing very rudely the national economy of the country. It is well-known,
for example, that smuggling of gold has become a serious problem in this country and
operations of smuggling are conducted by operators who work on an international basis. The
persons who actually carry out the physical part of smuggling gold by one means or another
are generally no more than agents and presumably, behind them stands a well-knit organisation
which for motives of profit-making, undertakes this activity.”
State of Maharashtra v. M.H. George (1964 SC)
Supreme Court observed that 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 of
mens rea were to be read into section 8 (1) or section 23(1-A) 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.
Language of the enactment, the object and subject-matter of the statute and the nature and
character of the act ought to be considered.

Nathulal v. State of Madhya Pradesh (1965)

Justice Subba Rao observed, “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. The nature of the mens rea that would be implied in a statute
creating an offence depends on the object of the Act and the provisions thereof.”
Question1 (a) (2014 B)
The fundamental principal of Criminal Liability is that, “there must be wrongful act combined
with wrongful intention”. Elaborate.

Answer
With the help of above case this question can be solved.
Question1 (a) (Dec. 2015)
Explain the rational behind punishing a person guilty of strict liability offence in the absence
of guilty mind.
Answer
Rationality behind application of strict liability
Answer of this question is based on conflict between individual rights v. interest of public at
large. Strict liability is imposed that other person must, in certain cases, take extra care.
Selling of obscene books is dangerous for development of children and nation. It creates lust
and lust creates environment for commission of crime. In case of Ranjit D.Udeshi v. State of
Maharashtra section 292 was interpreted and mens rea was ignored.

Krishna Murari Yadav, Assistant Professor, LAW CENTRE – I, FOL, DU

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For protection of right of guardian application of mens rea is not necessary. For example R. v.
Prince (1875) and section 361 of IPC.
It is necessary for protection of institution of family and health of family. For example in case
of bigamy mens rea is not necessary
Economic offences affect not only develop of nation and life of citizens but also integrity and
sovereignty of nation. In the case of State of Maharashtra v. M.H.George (1964) majority
opinion of Supreme Court observed, “The Foreign Exchange Regulation Act, 1947 is designed
to safeguarding and conserving foreign exchange which is essential to the economic life of a
developing country. The provisions have therefore to be stringent and so framed as to prevent
unauthorized and unregulated transactions which might upset the scheme underlying the
controls; and in a larger context, the penal provisions are aimed at eliminating smuggling which
is a concomitant of controls over the free movement of goods or currencies.” It is necessary for
the prevention of smuggling would be entirely frustrated if a condition of mens rea were to be
read into the plain reading of the enactment.

In the case of Pyarali K. Tejani v. Mahadeo Ramchandra Dange and Others (1973) Supreme
Court said nothing more than the actus reus is needed where, regulation of private activity in
vulnerable areas like public health is intended. Social defence reasonably overpowers
individual freedom to injure, in special situations of strict liability. If you have sold any article
of food contrary to law, you are guilty. The law denies the right of a dealer to rob the health of
other.
Jurisprudence of application of strict liability in adulterated food has been explained in
American Jurisprudence which are following “The distribution of impure or adulterated food
for consumption is an act perilous to human life and health, hence, a dangerous act, and cannot
be made innocent and harmless by the want of knowledge or by the good faith of the seller; it
is the act itself, not the intent, that determines the guilt, and the actual harm to the public is the
same in one case as in the other. Thus, the seller of food is under the duty of ascertaining at his
peril whether the article of food conforms to the standard fixed by statute or ordinance, unless
such statutes or ordinances, expressly or by implication, make intent an element of the offence.”

Question1 (2015)
The exclusion of Mens rea by necessary implication depends on the object and provisions of
statute. Discuss the Mens rea under strict liability.
Answer
Already discussed

Question1 (a) (2016)

Mens Rea is the very cornerstone of criminal jurisprudence

Krishna Murari Yadav, Assistant Professor, LAW CENTRE – I, FOL, DU