due - 01 Module - 02 Module - 03 Module - 04 Module -.05 Module - 06, Module -.07 Module - 08 Module - 09 Module - 10 CONTENT Sylabus Nature of Crime and Criminal Liability General Principles of Criminal Law Introduction to Substantive Criminal Law General Defense Offences Against State, Public Tranquility, Administration of Justice, ete. Offences Relating to Public Health, Religion, Decency and Morality Offences Against Human Body - Offences Relating to Woman Offences Against Property and Person, ete, Question PaperProf. Pathan’s _ S.P. Law Classes, Pune, Page : 2 ‘@ (Class) 25510256; (Res) 26333908.] LC 0504 Law of Crimes : Objectives of the Course: Module 01 Module 02 Module 03 Module 04 Module IS Crime and Punishment has always been the most important aspect of Rule of Law. A proper Understanding of crimes, methods of controlling them andthe reasons for their existence s extremely important to build a just and humane society. This course is designed with a prime object to familiarize students with the principles of criminal liability and other concepts of substantive criminal ‘awalong with relevant case laws. tis also meant to enable them to articulate informed opinion over important controversial issues in criminal law. Nature of Crime and Criminal Liability : Historical Development of Indian Penal Code, 1860 - Nature of Crime, Definition of Crime in social and legal context, Test of Criminality, Approaches to (Crime, Distinction between Moral, Civil and Criminal wrongs, Criminal law and Morality, Crime and Tort, Crime and Sin, Aim and Function of the Criminal law Criminal Liability - Theories - Subjective and Obje ctive theories, Principles - Actus non facit eum, nisi mens sitrea, Origin and development of mens ea, Liability without mens rea, mens tea in Indian Penal Code, Facets of mens tea - Motive, Knowledge, Intention, Recklessness and Nesligence, Malice Elements of Crime - Human Conduct, Voluntary act, Guilty intention, Causal Comnection, Prohibited Result General Principles of Criminal Law: Nulla poena sine lege, nullum crimen sine lege. Retroactivity of criminal law (ex post facto law), Narrow construction of criminal law, Rule against ‘jMicial creation of offences and vagueness of criminal statutes, Principles of mala in se, mala prohibita Joint lability; Vicarious liability, Strict liability and’Absolute lability Stages in Commission of Crime, Intention - mere intention not punishable, Preparation, Attempt - ‘Attempt when punishable, specific provisions of IPC, Tests for determining what constitute attempt, proximity, equivocality and social danger test, Impossible attempt, Commission of offence Introduction to Substantive Criminal Law : Jurisdiction under Indian Penal Code, 1960 . ‘ Crime and Punishment - Objectives ofpunishment, Kinds of Punishment Discretion in awarding punishment and minimum punishment in respect of certain offences General Explanations - Movable Property, Wrongful Loss and Wrongful gain, Dishonestly, Fraudulent!y, Common Intention, Common Object, Voluntarily, Good faith, Criminal Conspiracy General Defenses : Excuses (Mental Incapacity) - Minority (fancy), Involuntary Intoxication and Insanity asa Defense Justifications ~ Necessity, Mistake of Fact, Acts d one with Consent, Accident, Judicial acs, ‘Trivialty Right of Private Defense of Body and Property -Justifications and Limits Offences against State, Public ‘Tranquility, Administration of Justice, ete. : Abetment, Abetment when punishable? Liability of Abettor,Abetment of offence punishable with death or imprisonment for life Harboring Offender, Harboring Deserter ‘Waging wat, Sedition, Conspiracy to Waging warProf. Pathan’s _S.P. Law Classes, Pune. Page : 3 ‘@ (Class) 25510256, (Res) 26333908. Module 06 Module 07 Module 08 «Module 09 Unlawful Assembly, Rioting, Affray, Promoting enmity between different groups, Imputations! judicial to national integration idence, Fabricating false evidence Offences relating to Public Health, Religion, Decency and Morality: Public Nuisance, dulteration, Obscenity, Rash or Negligent driving, Causing danger orobstruction toany person in public way Injuring or Defiling place of Worship with intent to insult the religion of any class, Deliberate and ‘malicious acts intended to outrage religious feelings, Disturbing Religious Assembly, Utteing Words te, with deliberate intent to wound theveligious feelings a Offences against Human Body : Culpable Homicide, Murder, Ingredients, Exceptions ‘and Distinetion between Culpable Homicide and Murder, when culpable homicide is murder? Attempt to commit Culpable Homicide, Attempt to Murder Causing Death by Negligence, Causing Death with the consent of the deceased - Euthanasia and itsConstitutionality Suicide—abetmentand attempt, its Constitutional. validity Hurt, Voluntarily, causing hui etc; Grievous Hur, Voluntaily causing grievous hurt, ec., Wrongful Restraint, Wrongful Confinement Criminal Force, Assault, Kidnapping and Abduction, distinction between them Offences relating to Woman : Cruelty against Woman, Dowry death, Causing Miscarriage, Acid Attack Outraging Modesty of ‘woman, Sexual Harassment, Voyeurism, Stalking Rape ils ingredients, developments in law along with relevant judicial decisions, Unnatiral offences. Deceitful Cohabitation, Bigamy, Mock Marriages, Adultery Offences against Property and Person, ete. ‘Theft, Extortion, Robbery and Dacoity, distinction between them, forms of Robbery and Dacoity Criminal Misappropriation, Criminal Breach of Trust, Stolen property, Cheating, Mischief; Criminal Trespass, House Trespass, Lurking House Trespass, House Breaking, House Bredking by Night Defamation, Criminal Intinidation and Insult ; Forgery and Making of False document, Falsification of accounts * Recommended Readings : 1) Common Lawin India (Chapter II, Criminal Law, p. 124-176) by Setelvad. 2) History of English Law Vol. II (Last chapter on Indian Penal Code) by Stephin. 3) LawofCrimesin India, Vol. ~Pringiples of Criminal Law by R CNigam, Asia Publisting House, New York. 4) Criminal Law by Glanville Wiliams, Universal Law Publishing Co. 5) Keriny’s Outlines of Criminal Law by SW Cecil Tumer, Universal Law Publishing Co. 6) Criminal Lawby Smith and Hogan, Oxford University Press 7) Principles of Criminal Law by Andrew Ashworth, Clarendon Law Series 8) RA.Nelson’s indian Penal Code (4 Volumes), by S. K.Savaria, LexisNexis Delhi. 9) Penal Law of India (4 volumes) by Dr. Hati Singh Gaur. 10) Indian Penal Code (Ed. 11 1901, p.242-249) by J. D. Mayne. 11) Essay’son Indian Penal Code by Prof. K.N. Chndranshekhar Pillai 12) LawRelating to Crime and Punishment by R. C. Srivastava, 13) _ A‘Text Book on Indian Penal Code by Prof K. D. Gaur. 14) Criminal Law Cases and Material by Prof. D, Gaur, 15) — The Indian Penal Code by Ratanlal and Dhirajlal, Wadhwa and Company Nagpur.ces ae (1) “questions with critical evaluation. There shall be five questions and the student has to answer (3) Note: ). SS SE Law Classes, Pune. Page : 4 ‘@ (Class) 25510256, (Resp 26333908. Medium of Instruction and Division of Marks : The medium for instruction and for examination ofall subjects in B.A. LL.B. BABA LLB. and LL.B. courses shall be English, , Each subject of B.A. LL.B. B.B.A. LL.B. and LL.B. courses shall be of 100 marks, The division of 100 marks For all the subjects, except for practical taining subjects, shall be as under: (@) University Written Examination : 80 marks (b) Internal Assessment by College :20 marks Question Paper Pattern for University Written Examination (80 Marks): The question paper for University written examination of each Subject, except for Practical Training Paper IV - Moot Court Exercise and Intemship, shall be as under PartA Questions (45 marks) : Part of question paper shall consist of essay type questions or uestions oferitical comments depending on thenature of subject. A student ‘has to answer the any three questions. Each question shall be for 15 marks Part B Questions (20 marks): Part B of question paper shall consist of short essay type questions depending on the nature of subject. A student has to answer the questions explaining concepts ‘with illustrations. There shall be four questions and the student has toanswer any two questions Each question shall be for 10 marks Part C Questions (15 marks): Part Cof question paper shall consist of short answer questions or solving of hypothetical problems, etc, There shall be five questions and the sade has to answer any three questions. Each question shall befor 5 marks The question paper pattem given herein may be changed or altered depending on the nature of Subject e-g, non-law subjects, The question paper patter given herein may also be changed or altered by the University at any time without prior information to the stadente ; Internal Assessment by College (20 Marks) :. The division of 20 marks for each subject, except for practical training subjects, for intemal assessment shall be as under: (a) Written Submissionis : 10 marks. (b) Class Performance : 10 marks5 : 4 Lavor CRIME, Prof. Pathan’s _ S.P. Law Classes, Pune. Page : 5 ‘@ (Class) 25510256; (Res) 26333908. MODULE - 01 NATURE OF CRIMEAND CRIMINAL LIABILITY HISTORICAL DEVELOPMENT OF INDIAN PENAL CODE, 1860 Qt, Discuss the historical development of Indian Penal Code? ~ SYNPSIS:- 1. Introduétion 2. Ancient Hindw Criminal Law 3. Mohammedan Criminal Law i) Kisa/qisas ii) Diya/Dijut or Blood Money Hadd or Specific Penalty iv) Tazeer or Syasa 4, Need to draft Indian Penal Code J Role of Law Commission of India By 1 “Introduetion:- Accredit to draft Indian Penal Code, goes to the First Law Commission constituted int 1834 ‘in pursuance of S.53 of the Charter of 1833. As there was no uniform penal laws for Indian, the task of codification of Penal laws for Indian was giventto thé First Law Commission headed by Lord Macaulay as its President and Macleod, Anderson and Millet as its members. The First Law Commission drafted the Indian Penal Code‘and submitted its report on 15" June 1835 to the then Indian Legislative'Council and after careful consideration and discussion, the draft Penal Code was approved by the Legislative Council and received the assent of Governor-General- in Council on 6" October 1860. aa the first imiform criminal law came into force on 1* January 1862. ‘The present Indian Penal Code and the present criminal system of India was not avidencreation but it has been evolved as the result of slow and gradual process and bears the imprint of the different period of Indianhistory. The criminal law of India developed over years iria systematic format starting from the ancient Hindu Criminal Law and then with the early Muslim Criminal Law. 2. Ancient Hindu Criminal Law:- ‘The gernof criminal jurisprudence came into existence in India at the time of Manu. He gave a comprehensive code which contains not only the ordinances relating to law, but is complete digest of the then prevailing religion, philosophy and customs practiced by people. In primitive society in ancient India the administration of justice was the concern of the cominon people in their various : associations such as Kula, Steni, Guilds etc. The head priest was responsible for administration of justice and justice was deliveréd by him as per the ‘Dharma Shastras’. The King was not involved in the administration of justice. It was “Dharma Sutras’ that mentioned for the first time adminisization of justice as the function of the king. .Lavor crm, Prof, Pathan’sS.P. Law Classes, Pine. Page 76 (Class) 25510256, (Res) 26333008, | In Manu Smriti, Manu-had made distinction between principal offences against persons and roperty. Manu regarded assault, battery theft, robbery, false evidence, slander, libel, criminal breach of trust, adultery, gambling anid homicide as crrtes, In Manu Smriti there is reference that Kinig used ‘o dispense justice either by himself or with the help of counsellors or Judges appointed by him. In Manu Smriti the punishment was given to the offender as per the gravity of the offence aiid the caste and creed. The substantive criminal jurisprudence of Maiu is not free from bias. In case a criminal is distinction between casual offenders and harden criminal. There was also a provision for exemption’ from criminal liability, where the act was done without any criminal intention, or by mistake of fact, or by consent, or was the result of. accident and the right of private defense similar as provided in Chapter IV of IPC i.e. General Exception, ‘Ancient Smriti writers a propounded four methods of punishment, namely, by gentle admonition, by sevete reproof, by fine and by corporal punishment, The punishnient declared shall be inflicted separgtely according to the nature of offence and the caste of the criminal. These Punishments serve four thain purposes, namely, to meet the urge of the person affected, for a revenge or Tetaliation, as deterrent and preventive measures and for reformation of the evil doers. The punishment was discriminatory. Manu’s code continued in India till the Mohammedan rule was established and then the people were forced to the critninal jurisptudence of Muslims. : 3. Mohammedan Criminal Law:- iy : ‘After Hindu Crimirial Law, next phase saw the,ise in Mohammédan Criminal Law over time, Which influenced and brought about measures that formed the base of criminal law system in India, ‘The Mohammedan Criminal Law was based on Koran, which is believed to be of divine origin and ras the first source of Muslim law,-The subsequent sources which are secondary in nature of Muslim law i.e: Sunnah or Hadith, limaa and Qiyas also provides rules of Mohammedan Criminal Law, Thus, the above mentioned sources of Muslim law laid down general principles of Mohammedan Criminal Lav. Even Fatawa-i-Alamgisi i.e collection of case law also expounded criminal law. -. The administration of criminal justice was entrusted inthe hands of Kazis who were appointed by Nawab/Ruler, The punishment varied according tothe nature of crime. The offences were broadly classified into four main categories and accordingly punishment was fourfold te i) Kisa/qisas:- heirs of deceased, if major, were permitted to cause the death.of criminal in presence of Kazi or Nawab and in case of offences short of death, legal heir were permitted to inflict similar injury to the criminal. Thus, the right of retaliation being considered as a private right, the possessors of the right Were at liberty to remit their claim and forgive the offender or to compound with the consent ofLAWOF CRIME. Prof. Pathan’s_§.P. Law Classes, Pune. Page 7 ‘@ (Class) 25510256, (Res): 26333908. murderer, for compensation. Thus, the nearest of kin of deceased was required to execute the sentence of death on the murderer. When willful homicide was established and the crime did not fall under any of the exceptions, the punishment of retaliation was inflicted on the murderer by Kazi/Nawab. ii) ' Diya/Diyut or Blood Money:- In certain cases, where rétaliation was not allowed, the injured party had the right to demand for blood money which was called as Diya’ . The punishment of Kisas in all cases of willful homicide was exchangeable with that of Diyut, ifthe person having right of retaliation wished, the end being relief and satisfaction to the mind. Thus, practically, the punishment of Diyut was an alternative to the punishment of Kisas. iii) Hadd or Specific Penalty:- Itwasa fixed punishment under Mohammedan Law which was defined in the Hedaya/Hadith to comprise-of specific penalties fixed with reference to the right of God or to public justice. Under these kind of punishnient the quantity and quality of punishment was fixed for certain offences and this could not be altered or modified: If the offence was proved, the Kazi had no other alternative bat to sentence the convict to the presctibed punishmént. The aim of Hadd was to deter offenders from perpetration of criniinal acts causing injutries to the community. These being a public right, the Ruler orhis Nawab was exclusively authorizes to enforce it. The punishment of Hadd extended to the crime of adultery’ (zina), of false accusation, of drinking wine, of theft and of highway robbery. The punighments were stoning till death, whipping, banishment ot imprisonment for limited period or to strips etc. iv). Tizeer orSyasa— It is a discretionary or exemplary punishment. The kind and amount of punishment i entirely on the discretion of the Judge : The punishment could be anything from iepesnemns and banishment to public exposure. a ‘The Mohammedan Law vests in the sovereign and his delegates, the power of sentencing criminals to suffer disctetiorary punishment in three cases: First, in the cases of offences for which no specific penalty of Hadd of Kisas has been provided by the law. Secondly, for crimes within the specific provisions of Hadd of Kisas, when the proof of the commission of such crimes niay not be such as the law requires for judgment of the specific penalties. Thirdly, for heinous crimes in‘high degree injury to society and particularly for repeated offences of this deseriptionis, which for the ends of the public justices may appeartto require exemplary punishment beyond the prescribed penalties, _ ~Tazeer was legally defined as an infliction undetermined in its degree by the law, on account of the Zight either of God or of the individual or other words for the ends of public as well as private justice. The penaltjes of Tazeer were of two kinds; one of a private nature, being in-satisfaction of individual right and other public was and considered to be right of God. ‘Though certain broad principles of Mohammedan Criminal Law were laid down, they were not certain and uniform in actual practice as they were conflicting, confusing and incompatible. The inherit defect was in its conceptions and classification of crimes into three categories namely, crimes against God, against the States and against private individual. There was no distinction between public and private law. The weakness of Mohammedan Law was sufficient to encourage many persons to commit murders. The law of Diya or blood money was highly unsatisfactory. The English administrators, found Mohammedan Law suffered from many defects, introduced reforms from time to timeto mould, refrain and amend the Mohammedan Law to regulate the machinery of the justice.uawor cx Prof. Pathan’s _S.P. Law Classes, Pane: Page : 8 ‘@ (Class) 25510256, -(Res) 26333908. 4." Need to draft Indian Penal Codes: . 2 wl : {twas Warren Hastings who introduced Adalat system in Moffusil area’ by his three judicial reforms of 1772,1774 and 1780. There after Lord Comwallis by his criminal reforms of 1790 The very object of drafting penal code was to bring about uniformity in criminallaw. T Hie Law Commission submitted its reports of 15%. June 1835 to Indian Legislative Council and after prolonged discussion, the Draft Penal Code was approved by the Legislative Council and received the assent of Govemnor- Géneral -in- Council of. 6 October 1860 and the Indian Penal Code was brought into force on 1* January 1862, a The Indian Penal Code, is comprehensive piece of legislation, it comiprises 23 Chapters and 511 Sections. The Code embodies the general penal law of the country. The Code supplemenied by the local and special statutes to punish certain categories or behaviours or acts that are prejudicial to the interest of the citizens and the States, . 7 . ! The Indian Penal Code amended in the year 1870, 1921,1953,1957, 1969, 1973, 1978, 2005, 2009, 2013 and 2018. . Asperthe provisions of Regulating Act, 1773 a Supreme Court was constituted at Galcutta in the year. 1774. It was Crown's Court in Calcutta Presidency whereas in Moffasi atea, there were Company's Court. The law and procedures applied by both the courts Were totally different from veach other. There were different law relating to Criminal Procedure applicable to Presidency towns “and out of Presideticy towns ic. in Mofussil area. ‘There was no uniform law relating to criminal procedure for the whole of India. The first Criminal Procedure Supreme Courts Act was enacted in forthe whole of India. This Act was replaced by the Code of 1898, This Code was amended several times, ee 7 pot 5.” Role of Law Commission of India:: : After independence when the Law Commission was set up in 195S'and it studied the old Code extensively and made various suggestions and recommendation and submitted Teports to the Government in the year 1969, Subsequently, the Government of India passed Criminal Procedure Code, 1973 Which came into force from 1* April , 1974, Even this new Codes also amended from time to time as per the changing circumstances, . The Criminal Procedute Code has been amended from time to time specially in the year of 1978, 2005, 2009, 2013 and 2018 to meet the changing needs of the society, The data collected by the National Crime Records Bureau shows that there has been increased in the cases of sexual offences against children and the exploitative use of children in prostitution anid eTLawor enn Prof. Pathan’s ~S,P, Law Classes, Pune. Page : 9 @ (Class) 25510256, (Res) 26333908. | pornographic perforiters and materials hence Government of India enacted Protection of Children from Sexual Offences Act, 2012 to protect children from offences of sexual assault, sexual harassment and porndgraphic and provide for establishment of Special Courts for trial of such offences. Supreme Court in Vishaktha Vs Rajasthan laid down guidelines for the protection of women at work place from sexual harassment and finally Government of India enacted Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 6. Conclusion:- ‘The First Law Commission, héaded by Lord Macaulay submitted its reports on 15® June 1835 to Indian Legislative Council and after prolonged discussion, the Draft Penal Code was approved by the Legislative Council and received the assent of Governor- General ~in- Council on 6" October 1860 and the Indian Penal Code was brought into force on 1° January 1862. The Indian Penal Code, is comprehensive piece of legislation. It comprises 23 Chapters and 51t Sections. The Code embodies the general penal law of the country.LaWoF CRIME a Prof. Pathan’s - .S.P. Law Classes, Pune. Page : 10 ‘@ (Class) 25510256, (Res) 26333908. NATRUE OF CRIME AND DEFINITION OF CRIMEIN: SQCJALAND. LEGALCONTEXT Qin. Discuss the nature of crime and definition of crime in social and legal context? SYNOPSIS. “"L Introduction- : 2. Nature of crime/ Concept of Crime 3. Definition and meaning of crime. , 4) Crime as a public wrong 4) Crime as a moral wrong ©) Crime asa conventional wrong 4) ~~ Crime asa social wrong e) . Crimes a procedural wrong J). Grime as a legal wrong a 4 Conelusion- : 1. Introduction- : Historically crimes were closely related to eligious'sanctions and concepts and were both sins af well as offences. It can be seen from the development of ‘criminal law of Hindu Criminal Jurisptudence and Muslitn Criminal Jurisprudence. The concept of crime was not certain and uniform as there was different classification of crime and theories of punishments. The procedural law including aw of evidence was also not satisfactory as there were illogical rules of evidenve. There is no precise’ definition of crime. Various definitions of crime were propounded by different Juris, 2. Nature of Crime/Concept of Crime:- Many attempts have been made to define crime, but they all fail to help isin identifying what Kind of act or omission zmounts ‘to a crime. Perhaps, this is because of the changing riotions about crime from time to.time and place to place. The very definition and concept of crime Varies riot only according to the values of a particular group and society, it ideals,, faith, religious attitudes, custolns, ttaditions and taboos, but also according to the form of government; political and economic structire of the Society and a number of other factors. For instance, what is an offence against property in a » capitalist culture may be a lawful way of living ina socialist society. Any act, which isa crime today, may not be-a crime tomorrow, if the legislatiare so decides. For instance, polygamy, dowry, Uuntouchability are now crimes that were not so afew years ago. To understand the meaning and Concept of crime in its correct perspective , it would be appropriate to examine some of the definitions propounded by jurists. 3. Definition and meaning of crime i) Crime as a Public Wrong:- Blackstone- “An act committed or omitted in, violation of a public law forbidding or commanding i”. ; The definition appears to be misleading since it limits the scope of crime to violations of a ‘public law’. As such the definition would cover only political offences, viz offences against the State, Such offences are merely a segment of the great bulk ctiminal law. If ‘public law’ is taken as equivalentB LAWOF Cie Prof. Pathan’s S.P. Law Classes, Pune. Page : 11 ‘@ (Class) 25510256, (Res) 26333908. to ‘positive’ or ‘municipal law’ as noted by Kenny, the definition would become too wide and would cover all legal wrongs, while in fact every legal wrong is not a crime. Likewise, if ‘public law’ is interpreted to include both constitutional and criniinal law, the definition ceases to define, because it is fallacious to define ‘crime with the help of constitutional law. Blackstone realized the defect in the definition and subséquently modified the definition as — “Accrime is a violation of the public rights and duties due to the whole community, considered as a community”. Stephen modified this definition slightly and reconstructed in the following words: “A crime isa violation of right, considered in reference to the evil tendency of such violation as regards the community at large”. oe However, the definition is not free from error. It narrows down the scope of crime to the violation of rights only, whereas criminal law fastens criminal liability even on those persons who omit to perform duty required by law. Wilful omission to provide food, clothing, shelter or medical aid to a child by afather, or to a wife by a husband isa crime. The definitions given by Blackstone and Stephen further stress that crimes are branches of “those laws which injure the community’. However, all the acts that are injurious to the community are nit necessatily crimes. ii); Crime asa Moral Wrong:- The word ‘crime owes its genesis to the Greek expression ‘krimos”, which is synonymous with the Sariskrit word ‘krama’ meaning social order. Thus, tlie word ‘crime’ is applied to those acts that go against social order and are worthy of serious condemnation, Garafalo, an eminent criminologist, defines crime in terms of immoral and anti-social acts, He says, oe “Crime is ain immoral and harmful act that is regarded as criminal by public opinion because it is an injury to so much of the motal sense as is possessed by a community-a measure which is indispensable for the adaption of the individual to society”. Inthe definition, the emphasis on moral again breaks down in many respects. No doubt, im}noral Acts like murder, or causing hurt'without any reasonable excuse, stealing or destroying another’s property, kidnapping a child, raping a woman ete. have béen traditiontally considered as crimes. However, there is quite an array of conduct, which, though derogate from the cherished values of the community, aré not considered as crimes. Immoral acts like ingratitude, hard-heartedness, callous disregard for the’suffering of others etc. have ever been crimes for obvious reasons of their triviality, or the impracticability of using criminal law as the meatis to correct such behavior. Instead, they are to be corrected by social, educational and religious institutions. As stated by the authors of the code. ‘There are manly acts that are prohibited not because of their immoral nature, but because of social expediency and a number of other factors. For instance, traffic offences, offences relating to black-marketeering or hoarding of essential commodities, customs, licensing and taxing statues, etc are based upon economic expediency, necessitated by a growing industrialized and urbanized social economy, Likewise there are some harmless ‘crimes’ like vagrancy anid loitering; some prophylactic ‘crimes’ like conisorting and possession of prohibited goods (even without intent to use them) for example, weapons, drugs, illegal imports; and goods (including money) unlawfully obtained.LAWOP CRIME : Prof. Pathan’s _ S.P. Law Classes, Pune. _ Page : 12 2 (Chss) 25510256, (Res) 26333908. iii) Crime as a Conventional Wrong:- Edwin Sutherland, defines crime in terms of criminal betiovict.” “Criminal behavior is behavior in violation of the criininal law. No matter what thie degree of _ immorality, reprehensibility, or indecency of an act, itis not a crime unless it is prohibited by the criminal law. The criminal law, in turn, is defined conventionally as a body of specific niles earing human conduct which have been proniulgated by political authority, which apply uniformly to all members of the ¢lasses to which the rules refer, and which are enforced by punishment administered by the State. Characteristics, which distinguish this body of rules regarding human conduct from other rules, are therefore, politicality, specificity, uniformity and penal sanction”. Sutherland merely enumerated the characteristics of crime instead.of giving a definition of crime. He only says that crime is a violation of the criminal law. iv) Crime as a Social Wrong:- John Gillian gives as sociological definition of crime. . _ “Crime is an act that has been shown to be actually harmful to society, orihatis believed to be socially harmful by a group of people that has the power to enforce its beliefs, and that places such act under the ban of positive penalties”. ‘The sociological definition too, like other definitions, fails to explain a number of criminal behaviors. As stated earlier, when legislature enacts that a particular act shall become a crime or that an act that is criminal shall cease to beso, the acts does not change in nature in any respect other than that ae classification. In other words, the name of the behavior would be changed, but the nature and the social reaction to the behavior would remain the same, for the ‘social interest’ damaged by the ‘behavior would remain essentially unchanged, For instance, though dowry is acrime, there is hardly <_atty change in the attitude ofthe people. Perhaps, itis more in practice today than befote aé is evident ‘from the nuniber of dowry deaths and cases of bride burning repented each at v) Crime as a Procedural Wrong:- : John Austin :- : . “Awrong whichis pursued by the sovereigh or his subordinates is a.crime. A wrong which is ‘pursued at the discretion of the injured party and his representatives is a civil injury”. ~ The definition does not hold well in respect of a number of offences in the which prosecution could be initiated only,at the instance of the injured party as in torts. No court will take cognizance of the offence of adultery'and of-criminal elopement (PCS. 497 498), except upon acomplaint made ~ by the husband of the woman. Accordingly, Kenny modified Austin’s definition and stated: 5 © “Ctimes are wrongs whose sanction is punitive, and is in no way-remissible by any private person, but is remissible by the Crown alone, if remissible at all”. Kenny’s definition is also not free from lecunae and is open to criticism. Iti is with respect to the word ‘remissible’ that the difficulty arises. The definition lays stress on remission by the ‘Crown’, which is not always true. There aré'a number of compoundable offences that are remnissible by some gratification from the accused. Roscoe Pound - ““A final answer to the question ‘what i crime’, is impossible, because law isa living, changing thing, which may at one time be based on Sovereign will and at another time on juristic science, which may at one time be uniform, and at another time give much room for judicial discretion, which may at one time be more specific in its presctiption and at another time much more general”.: ee - Laworéxie Prof. Pathan’s SP, Law Classes, Pune. Page: 13 ‘ (Class) 25510256, (Res) 26333908, vi) Crime asa Legal Wrong:::: tae When a penal statute prescribes punishment for an act or illegal omission (S. 32 IPC), it becomes crime. But as regards the definition of the term ‘crime’, there is no satisfactory definition’ acceptable to all and applicable in all situations. Even the Indian Penal Code is silent on this issue, - though it has codified the bulk of the crimiial law of the country. This provision is nothing but a statement of fact and canriot be regarded as a definition of crime. However, one can understood what constitutes a critne, by thie following three essential attributes: 1) crime is an act of commission or an ait of omission.on the part of a human being, which is . considered harmful by the State; ii) the transgression of such harmful acts is prevented by-d threat or sanction of punishment administered by the State; and . : iii) the guilt of the accused is determined after the accusation against him has been investigatedin egal proceedings of a special kind in accordance with the provisions of law. \ 4. Conclusion:- o From the above discussion it can be seen that there was,no uniform, precise definition of Crime. Many attempts have been made to define crim, but they all fail to help us in identifying what kind of act or omission amounts to a,crime because of changing notions about crime from time to tim and place to place. The very definition aid conéépt of crime varies according to the values of the Patticular group and society, its ideals, faith, religious attitudes, customs, traditions and according to * the form of Gavernment, political and economical structure of the society'and a number of othier factors. DISTINCTION BETWEENMORAL, CIVILAND CRIMINAL WRONGS © Qin. What is the distinction between Mort, Civil and Criminal wrongs? SYNOPSIS:- ; : i 1. Introduction 2. Criminal Law and Morality 3.’ Civil and Criminal Wrongs 4. Crime and Tort. ~ = 5. Conclusion’ ~ 1. Introduction :- : Since the very beginning of human civilization; inan has recognized certain acts committed by an individual, for instance, lying, gambling, cheating, stealing, killing, kidnapping, as reprehensible, because they tend to reduce human happiness. Such acts are called wrongs and are looked upon with disapprobation. The evil tendencies df these anti-social acts widely differ in degree and scope: Fo; instance, lying, refusal to give a mouthful of rice to save a fellow creature, omission to rescue aman from drowning, ete are not considered sufficiently serious for an action in law. Such acts are simply. considered as immoral or ethical wrongs and the concem of social and religious laws. On the other hand, wrongs, like nuisance, deceit, libel, robbery, dacoity, murder, rape kidnapping, etc. considered sufficiently serious for legal action. : :LaWorcRn : Prof. Pathan’s SP. Law Classes, Pune. Page 14 ‘B (Class) 25510256, (Res) 26333908. ‘The State thay respond to any such actin two ways, either at the instance of the injured individual or group, or by itself taking a direct action. In ther words, where the magnitude of injury is supposed tobe more concentrated on the individual, the wrongdoer is asked to compensate the injured in terms of money as in Case of deceit, libel, nuisance, negligence, ete. This type of wrong is called ‘civil ‘wrong’ of ‘tort’ for which civil remedy is open to the injured. Where the gravity of the injury is Comparatively more directed to the public at large, public condemnation or provision for compensation, as in the case of moral and civil wrongs, is ineffective. Wrongs like dacoity, murder, kidnapping; sedition, treason and the like, disturb the very fabric of law and orderand jeopardize the state’s existence or create a widespread panic. Therefore the state stresses punishment of the wrongdoer. This category of wrong is called ‘public wrong’ or ‘crime’ for which criminal. proceedings are instituted by the State, and the culprit is punished by a court of law if found guilty, 2. Criminal Law and Morality:- + Moral Wrong:- . Moral wrongs are actions that violate the rules of morality. Moral wrong is an underlying concept for legal wrong. Some moral wrongs are punishable by law, for example, rape or murder, Othér moral wrongs have nothing to do with law. On the other hand, some legal wrongs, such as Parking offences, could hardly be classified as moral wrongs. {There is the vague concept of ‘morality which is a sort of norm or a part of normative system. ~ Morals are actually certain yardsticks standards in our society which work as prescription to human behavior. The starting of preaching of morals start from the very basic unit of our society i.e. family. Asin the Hindu family, young people touch the feet of elders to wish them. There is no logic behind these morals but still these rhorals do prevail in oar society. This is fully ones own private practice in which .no where law as to intervene. A morality can be one which throws anegative ‘impact on society and the other which can benefit'the Society. Law and morality both are normative systems of our Society as both are normative and institutionalized by nature. The only difference between law and ‘morality is that law is coercive by nature but morality is not. Law is enforced by cgercion as there is sanctioned behind it. Law has gota coercive backing which works through institutions, .__ Law has the characteristic of binding whereas morality has the characteristic of being bouhd. Law is a body of rules which regulates the conduct of the human being within the community and enforced by the community with the concept of community. Law is the alternative to haman development as it work in an ithpartial and efficient manner. The question is always asked that should a law be made to enforce moral standards like pornography, prostitution, homosexuality, etc.? The legal positivist like Bentham, Austin, Kelson have always said that law must never be used as an instrument of enforcement of any moral standard, Therefore, as one carinot see! theimind and conscience, clements of morality become week and not determinable. But law is convenient which has withstood ‘the test of time. Law becomes a technique to establish a certain expected social behavior, at any Particular time, for any situation. Morals may be for enlightenment and would facilitated individual pursues, ~ Allegal system should consist of principles of convenience and feasibility as compulsions and aspiration influence life whereas morality should be late to individual freedom and practice. Legal enforcement of these moralities which causes negative impact in the growth of over society must hever:be determined. It cannot be denied that law and méal cannot be separated from each other as aLawor one. © Prof. Pathan’s _ S.P. Law Classes, Pune. Page: 15 -__, @ (Class) 25510256, (Res) 26333908, ‘major content of law derives it content from that of morality. E.g., all religious and moral norms say not to kill or not to still, and it is'thé Sarite herein law. So, we have almost the same content between law and morality. Itis undisputed fact that religion, morality or law all have the work of controlling the behavior of individuals of our society, hence, we must not exclude the importance of morality in our society.In. the case of International Humanitarian Laws, certain moral standard are also recognized as a part of law. So, the absolute separation of law and morality is not possible in these areas where morality produces a positive effect in society which is prospective in nature. There seems to be quite a strong connection between law and morality. Though we accept that there is connection between law and morality but their domains are clearly not entirely identical eg. it may be wrong.to li to our parents but itis certainly not business of theJaw. "Morality seeks to influence our behavior by way of our desires, whereas law is binding in nature. Some jurists are of the opinion that law and morality are just two sides of the same coin. Lord Devlin wrote'“Society means a community of ideas; without shared ideas on politics morals and ethiics, no society can exist. Each one of us has ideas about what is good and what is evil; they cannot be kept private from the society in which we live. If men and women try to createa society inwhich there is no fundamental agreement about good and evil they will fail; if, having based iton common agreement, the agreement goes, the society will disintegrate. } Forsociety is not Something that is kept together physically; itis held by the invisible bonds pf comimon thought. Ifthe bonds were too farrelaxed. The members would drift apart, A common morality is part of the bondage. ‘The bondage is part of the price ‘of society; and mankind, which needs society, must ‘pay its price”. - * There can never a hard. jacket: ora universal formula which could determine that should Jaw be used to enforce’ morality. It can only be concluded that the level of enforcement of moral standards depends upon case te case. . In the cases where morality shadows a good and beneficial effect on the icity, there if required, law could be used to enforce that positive morality, For example, in the vase of International Humanitarian Laws, certain moral standards are also recognized as a part of law or in another illustration that, all religious and moral norms say not to kill or not to steel, and this moral is enforced through law. On the other hand, that morality which produces any harmful effect in any form in the society, then law should not be used to enforce such morality, for example, the celebration of Valentine Day in _ Indian society is considered as a moral. But such morals never get the institutional stiape of law. 3. Civil and Criminal Wrongs:- Nature of Liability: Itis the basic duty of a State in a civilised society to maintain law and order and to govern the relations between the individual and the individual and the individual and the State by the rule made or recognised by the state.These rules enacted are nothing but laws. Law lays down the rights and duties of the individual. It prescribes what one is to do and what one is not to do. The breach of these rules is called or said to be wrong, When a person has committed a wrong he ‘will be liable, Thus liability isthe | condition*of the person who has committed a wrong. Tee TeLAWOR CRIME : : Prof. Pathan’s _ S.P. Law Classes, Pune. Page : 16: ‘@ (Class) 25510256, (Res) 26333908. Definition of wrong by Salmond: “Itis a bond of nécessity that exists between the wrongdoer aid the remedy for the wrong. The task of the law is not only to lays down rights and duties but to ensures their protections, enforcement and redresses also: Therefore, “liability” is the very important part of the study of law.” Kinds of Liability: 7 A wrong is classified in two groups, Moral wrongs and Legal wrongs. Moral wrongs not actionable whereas Legal wrongs are actionable. Legal wrongs again classified in two groups ~ 1), Civilwrongs and . 2), Criminal wrongs, and hence liabilities arising out of these two wrongs are classified as - 1. Civil Liability, and 2. Criminal Liability... : 2 The differences between the two liabilities are based on nature of remedies applied. For civil "liability an aggrieved party initiate the action against wrongdoer for either liquidated or unliquidated damages whereas for criminal liability State prosecute or take action against a criminal for mainteriance of law and order, and the remedy’ provided are eithér ptihishment by way of death sentence, or imprisonment or fine. Following are the points of distinctions generally between the civil and criminal liability aeeh 1)” Crime is a wrong against the society; heii the nature of right is“right in rem," whereas civil wrong is against a private individual or individuals, ince nature of right is “rights persona.” 2) ‘Theremedy against crimes punishment but remedy against civil wrong is datnages. . 3) The proceedings in case of crime are criminal proceeding but proceeding in case of civil wrong are called civil proceedings. : 4) . Incrime, intention is essential element whereas in civil ‘wrong it is not relevant. 5) + In crime, state takes action against criminal whereas in civil wrong, aggrieved person takes action, ; : i Remedial and Penal Liability: ‘The liability can again be classified as, “Penal” and “Remedial.” This: distinction has been made on the basis of legal consequences of action agairist the wrong. Iffter a successful procéeding the defendant is ordered to. pay damages or to pay debts or to make a specific performance, etc; the liability is called remedial liability. When after a successful proceeding when the guilt of the accused __isproved beyond reasonable doubt by the prosecution then the accused is awartled punishment, which may be the fine, imprisonment etc, itis called penal liability. ’ £ The civil liability is generally remedial and the criminal liability is penal liability, But in some casés the liability is both, civil as well as penal. Therefore civil liability is remedial and penal both. E.g. Defamation. . 4 Crimeand Tort:- Crimne:- ‘Thore'is no precise commonly agreed definition of crinie. Some jurists says that crime is'an ‘ict semtmittéd Or omitted in violation of a public law forbidding or commanding it. A crime is a Violation of the piblic rights and duties due to the whole community, hence, its a public wrong,: Lawor crime Prof. Pathan’s _ S.P. Law Classes, Pune. Page : 17 ‘®@ (Class) 25510256, (Res) 26333908. Some criminologists defines crime in terms of immoral and anti social act whereas some criminologists define crime as a social wrong. Itis said that when a penal statute préscribes punishment for an act or illegal omission, it becomes crime. There is no satisfactory definition acceptable to all and applicable in all situations. However, one can understanid what constitute a crime, by the following three essentials attributes- i)” crimes an act of commission or an act of pmission on the part of a human being, which is considered harmful by the State; : ii) the transgression of such harmful acts is prevented by’a threat or sanction of punishment administered by the State; and : iii) the guilt of the accused is determined after the accusation against him has been investigated in legal proceedings of a special kind in accordance withi the provisions of aw. The remedies provided for prevention of crime and administration of justice are punishments. These punishments differ from country to country and also from time to time depending upon the circumstances. In India, various kinds of punishment have beeni prescribed for different crimes. Itis necessary that the offender should be suitably punished so:as to ensure that they are prevented for committing crime again. Punishment to be awarded to the offender should be in propionate with offence committed by.them, Accordingly different kinds of punishment have been provided for different rims, Some of the punishment have been abolished. Indian Penal Code, provides following kinds of punishments'u/s 53- i) ~ Death. ii) Imprisonment for life. iii) Imprisonment, which is of two descriptions, namely- ” a)" ~ Rigorous, thatis, with hard labour b) Simple iv) . Forfeiture of property. : ; v) Fine. vi) ~ Solitary confinement Tort:- The word ‘tort’ has been derived from the Latin terms “ tortum” which means to twist. Tt impliedly means twisted behavior, which is known as tortuous act: In short’ tort means wrongful behavior. Itis therefore, a conduct, which is not straight or lawful, but, twisted, crooked or unlawful. It'is equivalent to:the English term “ wrong “. ~- Definition of Tort: - Salmond — “Torts civil wrong, for which remedy is a common law action for unliquidated dathages, and which is not exclusively the breach of contract, or breach of trust, or other merely equitable obligations.” Ratanlal and Dhirajlal — “Torts civil wrong, independent of breach of contract for which the appropriate remedy is an action for unliquidated damages.” : ‘Thus from the above definitions it can be said that “Tort is a civil wrong, independent of breach of contract, or breach of trust or breach of equitable obligations and the remedy for which is an action for unliquidated damages.LAWOF CRIME, Prof. Pathan’s _S.P. Law Classes, Pune. Page : 18 ‘@_ (Class). 25510256, (Res) 26333908. Essential Element to Constitute Tort: - To constitute the tort, following three elements are essential — a. Wrongful act committed by defendant: ‘ b. This wrongful act must Have resulted in legal damage of plaintiff, 5 wright of plaintiff. ¢. There s legal remedy in the form of an action for unliquidated damages. a.» Wrongful act or omission - In order to make a person liable for a.tort, he must have. done an act which he was not expected to do, or he must have omittéd to do something which he was supposed to do. Wrongful act is a act which is contrary to provisions of law, thereby, causing injury to the legal rights of another, e.g. A commits the act of trespass is liable for trespass, or publishes a statement defaming another person, is liable for defamation or wrongfully detains another person is liable for false imprisonment. Similarly, whenthere is a legal duty to do some act and a person fails to perform that duty, he * canbe made liable for such omission. In Glasgow Corpn V. Taylor, 1922, a Corporation fails to put proper fencing to keep the children away from a poisonous tree and a child plucks and eats the fruits of the poisonous tree and dies, the Corporation would be liable for such omission. £ InGeneral Cleaning Corporation Ltd. V. Christmas, 1 '953, an employer failed to provide a safety belt for safe system of work, liable for consequences of such omission. ‘The wrongful act or wrongful omission must be recognized by law. Therefore, a mere social or moral wrong is not enforceable, e:g. if somebody fails to help a starving man or save a drowningchild, is only.a moral wrorig, hence, nof'liable. : injury to legal 1b... Legal damage : Infringement of legal right - _Aplaintiff has to prove that there has been a legal damage caused to him. tis nothing but an injury to the legal right of the plaintiff Thus plaintiff has'to prove that there was a wrongful act or omission on the part of defendant, causing thereby breach of a legal duty or the violation of legal ight ofthe plaintiff vested in him and recognized by law. Therefore, there can be no action under the Law ‘of Tort unless there has been thie violition of legal right of the plaintiff. Hence, violation of legal rrightsis actionable. It is immaterial whether plaintiff suffered any loss in terms of money or not. This provision can be expressed by the maxim “injuria sine damno” means injury to the legal right of the plaintiff caused by defendant without any loss in terms of money t6 the plaintiff. Since what is actionable is the violation of legal right, it therefore follows that when there is no violation of legal right, no action can lie in the Court of Law even though defendant” act has caused some loss of harm or daniage to plaintiff c. Legal remedy- ‘The wrongful ac ofthe defendant must come under category of wrongs for which the remedy is civil action for damages. The essential remedy for tort is an action for damages, but there are other remedies also, e.g. injunction obtained in addition to damages in certain cases of wrong. The law of torts is said to be a development of the maxim “ubi jus ibi remedlium “ that there is no wrong without a remedy. Ifa man has a righthe must of necessity have a means to vindicate and maintain it and aeee z : Laivor came Prof. Pathan’s S.P. Law Glassés, Pie. Page : 19 ‘B (Class) 25510256, (Res) 26333908. remedy if it is injured in exercise of or enjoyment of it. It is in vain to imagine a Ba without a remedy. Thus where there is no legal temiedy, there is no legal wrong. If outof above three elements, any elementis absent or missing, then there is no tort. Wrongful aot and legal damage goes hand in hand: Legal damage means violation or infringement of legal right. For tort there is remedy for unliquidated damages means which is not determined, rot pre fixed ornot known before hand. gory All torts are civil wrongs but all civil wrongs are not tort. A breach of contract are breach of trust are breach of equitable obligations are also civil wrongs but different from tort. The remedy provided for these civil wrongs are liquidated damages which is loss in terms of money, known before hand. The difference ‘between tort, breach of contract and crime can be shown as under ina tabular form:- . . Point of difference ‘Tort Contract ~ Crime 1. Nature of right | Rightinrem,itis | Rightinpersonam, | Right intem: against the whole itis against a : particular person. é oni ; 2. Privity There is no contract | ‘There is contract There isino contract | ‘| -betweenthe.. | | ‘betweentwo parties. | betweenthe victim | ‘wronged and wrong: « and the criminal, ~~ doer. 3. Consent ofthe | Irrelevant.Asthere | Relevant.‘Thereis | Inelevant: Thereis parties | is no consent for the | free consent of both: | “absence of consent. tor, the parties to the . , | contract. : t 4. Motive » | Irrelevant. In tort arrelevant.In Relevant. In crime motive goodorbad | contract also the motive is essential has no relevancy. motive is not element. Every relevant. crime is committed with certain motive. 5. Intention Irrelevant. The Inelevant. In Relevant. An intention of the contract also, |_intention is one of Parties of the parties | intention has no | "| the essential has no relevancy. relevancy. element to constitute crime. SELAWOF CRIME Violated Prof, Pathan’s " S-P. Law Classes, Pane, Page 20 ‘@ (Class) 25510256, (Res) 26333908. Point of difference Tort > : Contract . Crime 6: Action by Personaggrieved | Person aggrieved by By State Govt. may >whom ~ can take action by breach of contract Prosecute the filing suitinCivil | maysueinCivil | criminal and ittiate Court. ~. | Court, . action’ in Criminal Court. 7. Remedy Suit for unliquidated | Suit for liquidated Punishment or fine damages: damages. ° on conviction: 8,. What right is Civil/Legal Civil/Legal Penal/Legal 5, -Conclusion:~ : In the cases where morality sha Tequited, aw could be used to enforce tha postive morality, Forexample, in the case of International Hlnfanitarian Laws, certain moral standards are also recognized asa artof law orin another illustration >that, all religious and moral norms say not to kill or not to steel, and this moral ig enforced through law. then law should not be used to enforce su: Indian society is Considered a. a moral. But such morals never get the institutional shape of law. Legal Wrongs are classified in i) criminal wrongs and civil wrongs, Theie are different remedies provided for the criminal wron, Onthe other hard that morality which produces any harmful effect in any form in’the society, dows a good and beneficial effect on the society, there if ch morality, for example, the celebration of Valentine Day in igs and civil wrongs as discussed above.LAWOF CRIME, Prof. Pathan’s:__ S.P. Law Classes, Pune. Page : 21 ‘@ (Class) 25510256, (Res) 26333908. AIMAND FUNCTION OF CRIMINALLAW:- Qin. What are the aim and functions of criminal law? ‘SYNOPSIS:- 1. Introduction 2. Basic functions of criminal law a) Retribution b) Deterrence ; ¢) — Denunciation . ig d). — Incapacitation e) Rehabilitation f) Restoration 3. Conclusion 1. Introduction: Criminal law is distinctive for the uniquely serious potential consequences or sanictions for failuge to abide by its ules. Every crime is composed of criminal elements. Capital punishment may be. ‘imposed i in some jurisdictioné for the most serious crimes. Physical or corporal punishment may be itiposed such as whipping or caning, although these punishments are prohibited in much of the world. Individuals may be incarcerated in prison or jai in a.variety of conditions depending on the ~ jurisdiction. Confinement may be solitary. Length of incarceration may vary from a day.to life. Government supervision may be imposed, inchiding house arrest, and convicts may be required to conform to patticularized guidelines as part of a_parole oF probation regimen, Fines also may be imposed, seizing money or property from a person convicted of a crime. ¢ 2. Basic functions of criminal, law:- . « ‘There are basically two functions of criminal law:- a 1)” Asa protection of primary personal rights. 27 2)° ~ Asaprotection of secondary personal rights. F The main task of government is protection of primary personal: rights against external invasion by means of armed forcés and protection against internal invasion by.means of criminal law. The ultimate aim of criminal law is protection of primary personal rights against intentional invasion by others ie. protection of wéak against the strong, the law-abiding against lawless étc. The secondary function of state is protection of civifand political rights, envisaged in Part-III of Indian Constitution under the heading of Fundamental Rights. The first function of the government is to protect life, liberty and property of persons, individually and collectively, against the criminals. Following are’ main objectives widely accepted for enforcement of the criminal law by punishments: retribution, deterrence, denunciation, incapacitation, rehabilitation, and restoration.LAWOF CRIME -[Prof. Pathan’s:”S.P. Law Classes, Pune. Page : 22 ‘BH (Cliss) 25510256, (Res) 26333908, a) Retribution — PES fae! ___ Criminals ought to be punished in some way. This is the most widely seen goal. Criminals have taken improper advantage, or inflicted unfair detriment, upon others and consequently, the criminal law will put criminals at some: unpleasant disadvantage to “balance the scales.” People submit to the law to receive the right not to be murdered and if people contravene these laws, they sutrender the rights granted to them by the Jaw. Thus, one who murders may be executed himself. A related theory includes the idea of “righting the balance.” a Retribution is a traditional justification for criminal sanction. If a person committed a crime, they deserved to suffer in some way. The public demands to see wrongdoers suffer for their bad actions. Ifa person stole; his victims deserved to see him whipped. If a person commits a murder, he deserved to die. Historically, many crimes were ecclesiastical in nature, meaning that God was deemed the victim, and he wanted to see the criminal suffer as well. In Christian States, people were whipped. in public for violating the rules of lent, bumt for witchcraft, and crucified for apostasy. In ancient states, all kinds of taboo behavior. was punished by:various means of bodily suffering. Today, we use prison terms. The current understanding is that criminals deserve a long period of “time out”. The justification of “keeping them off the streets” is sometimes identified as its own approach to criminal sanction; butis’ likely just a species of retribution. b) * Deterrence’ — a . : : Individal deterténce is aimed toward the'specifié offender. The aim is to impose a sufficient penalty to discourage 'the offender from:ctiminal behavior. General deterrence aims at-society at large. By imposing a penalty on'those who commit offenses, other individuals are discouraged from comunitting those ‘offenses: Deterrencé-is the belief that criminal: punishment is what will prevent criminals from committing crimes. John Lockeidescribes the ideal punishment as being one which is enough to deter people from committing the act, without being so harsh as to have juries be hesitant to carry out the sentence. Y i ©) Denuneiation at a : \ Denunciation is the principle that criminal conduct is that which is reprehensible to society, and therefore, must be punished beyond the usual tort penalties of money payments. Plato writes that any punishthent is apptopriate So long as the public knows that the criminal conduct is ‘unacceptable. Denunciation is condemnation of the act of crimirial being anti-social hence, he must be punished for it. 3 . ‘@) -. Incapacitation ~ ' Designed simply to keep ctiminal’ away from society so that the public is protected from their misconduct, This is often achieved through prison sentences today. The death penalty or banishment have served the same purpose. In Islamic Country incapacitation is a main principle of punishment whereby the capacity of criminal to commit the same crime in future is taken away e.g. Cutting of hand for offence of theft, cutting of sexual male organ in offence of rape, ete. e) Rehabilitation — Aims at transforming an offender into a valuable member of. society. Its primary goal is to prevent further offense by convincing the offerider that their conduct was wrong, Rehabilitation is the belief that prison- or some other punishment- will make a criminal change and not reoffend. This is aLaworcriom. Prof. Pathan’s SP. Law Classes, Pune, Page : 23 ‘@ (Class) 25510256, (Res) 26333908. fairly new approach, beginning in the early 20th century penal reforms. Advocates of rehabilitation believe that prison could be used to téach convicts the ertor in their ways, so that they can be released into society as functional participants. According to Roscoe Pouind criminal mentality is disease, cure it by treatment arid a reformation is the best way of ‘Rehabilitation. Examples of rehabilitation are prisons with substance abuse programs, educational programs, vocational training, psychological/psychiatric treatment, and spiritual programs. All of these are designed to give the piisoner the opportunity to fix whatever was wrong that made him become a criminal, and give him his best shot at success upon release. 4 The Probation of Offender Act, provides for release on admonition or on probation of the offender even if the guilt of accused is proved beyond reasonable doubt in certain minor offences committed by him for the first time not punishable with imprisonment exceeding three years. f) Restoration — This is a victim-oriented theory of punishmient. The goal is to repair, through state authority, any injury inflicted upon the victim by the offender. For example, one who embezzles will be required totepay the amount improperly acqilifed, Restoration is commonly combined with other main goals of criminal justice and is closely related to concepts in the civil law, i.e., returning the victim to his or her original position before the injury. § i ; ” Restoration is connected with victimology whereby the victimi of the offence is given certain relief by way of compensation from the criminal. After Nirbhya case, by an Amendment of 2013 to Indian Penal Code’in acid attack under section 326-A and 326-B reasonable amount of medical treatment of the victim is awarded to the victim and same in case of gang rape u/s 376-D of IPC to meet medical expense s and rehabilitation of the victim and any fine imposed under these sections shall be paid to the vi 3... -. Conclusion:~ ‘The primary function of criminal law is protection of primary personal rights and secondary personal rights against intentional invasion by others, protection of weak against the strong, the law abiding against lawless, the workers against predator, the peaceable against the violent.Lawor cute : Prof. Pathan’s _ §.P. Law. Classes, Pune. Page : 24 “® (Class) 25510256, (Res) 26333908, ~. ” CRIMINALLIABILITY THEORIES. SUBJECTIVE AND OBJECTIVE’ ‘THEORIES. | Qin. Discuss the theories of criminal liabilities or Discuss subjective and objective theories of °° criminal liability? SYNOPSIS: 1. Introduction 2. Meaning of Mens Rea : 3. Subjective theory of Criminal Liability 4. Objective theory of Criminal Liability ’ : : Conclusion 1. Introduction:- i Crime is an act committed or omitted in violation of a public law forbidding or commanding it Some criminologists define crime in terms of criminal behaviour, According to them.” Crime is an act that has been shown to be actually harmful to society or that is believed'to be socially harmful by 4 group of people that has the power to eriforce its beliefs, and that places such act under the ban of posifive penalties.” The meaning of Latin maxim, actus fion facit rein, nisi mens sit rea, there can beno crime without guilty mind, To make a person criminally liable, it must be proved that the conduct Was accompanied by a legally blameworthy attitude of mind, Thus, there are two components of every crime, a physical élemernits anda mental element; usually called actus reus and mens rea respectively. * 2. Meaning of Mens Rea ; Actus reuséfers to the physical aspect ina crime. Besides this; there is a mental element in a ~ crime. Thus, crime consists of actus reus plus inens rea, This can be seen from the maxim, “Actus non facit reum nisi mens sit rea”. ‘ Mens rea is a techriical term, generally taken to mean some blameworthy mental condition, Whether constituted by intention, knowledge or otherwise. There must be mind atfault to consttutea crime. No act per se criminal, the act becomes criminal when the Actor does it with guilty mind, e. g, causing injury to the assailant in self defence is no crime, but the moment injury is caused with intent totake revenge, the act Becomes crimisial. In the same way shooting in air is not crime but shooting with intent to kill a man is. crime, 08 Mens rea is a wider concept. It includes intention, motive, knowledge, recklessness and ~ negligence, etc., which are often used to indicate the different possible mental attitudes constituting actus reus of a particular crime, 3. Subjective theory of Criminal Liability:- Subjective theory of negligence is supported by Salmond. According to subjective theory, negligence is state of mind: Salmond says “Negligence essentially consists in the mental attitude of Lundue indifference with respect to one’s conduct and its consequences? The subjective mens tea or negligence is concerned with the mind and perspective ofthe accuse which asks what was going in his: LAWOF RINE Prof. Pathan’s S.P: Law Classes, Pune. Page : 25 ‘@ (Class) 25510256, (Res) 26333908, mind at the time of the actus reus. Further more subjective meis rea is what the accused was thinking about, desiring, planning etc. The subjective mental state of the siccused cannot be determined by comparison to what the ‘reasonable man’ or ‘to what the judge or jure would have in mind but instead, the prosecution must prove that the accused acted iin an internal state of mind of either intention or recklessness. The subjective mens rea is often referred to as the “guilty mind’ as the mens tea element will only be satisfied if the accused himself or herself; ‘possessed a particular state of mind either with a certain purpose or certain foresight. Eg. for the offence of criminal damage, the accused must have the mens rea recklessness to causing damage which requires that the accused personally foresaw a risk of damage. Thus, subjective test is applicable when foresight of consequences being highly probable to constitute a sufficient intention. ‘ Negligence is similar to the subjective fault of recklessness which is another culpable mens rea term. Recklessness,can be identified where the accused foresaw a risk of relevant element of the actus reus.and unreasonably went on to run this risk. The accuse is aware of a circumstantial risk existing or where accused is aware of a risk that will occur as a result of his or her action, they will have acted a recklessly, meaning that one who genuinely does not perceive a risk will not be culpable. ‘There are nonetheless a sniiall number of exception to the requirement of foreseen risk, such as where the accused was intoxicated or enraged (very angry). : However, there are, of course; disadvantages to a substantive approach looking at an accused’s mens fea, It is extremely difficult for a person that the accused hras possessed a certain state of mind, particularly in sexual offences, which therefore, allows miany guilty parties to unjustly escape criminal In addition it allows those who possesses a mental state of lack of attention to the existence of the circumstances to walk free. : . Furthermore; if exception of intoxication, enrageinent and ‘back of mind’ foresight are allowed, why not also allow recklessness where an accused failed to foresee a risk at fault of his own. Salmond propouttded this theory. His view is that negligence is culpable carelessness, According ‘o this theory negligence essentially consists a medal atiitude or undue indifference withtespect to one’s.conduct and its consequénces. A.person is ade liable on the ground of negligence becausezhe does not sufficiently desire to avoid particular consequences or harm. He is careless about the Consequence and does the act notwithstanding the risk that may ensue (follow). Winfield is also the supporter of this theory. He says, “as a mental element in tortuous liability, negligence usually signifies total or partial inadvertence of the defefdant to his conduct and for its consequences. 4. Objective theory of Criminal Liability:- . Objective is supported by Pollock. According to objective theory, negligence is behavior or type of conduct. According to the objective theory, ‘itis not a state of mind or type oP mens iea, but a articular type of conduct’. Pollock says, ‘Negligence is the contrary of diligence, an no one describes diligence asa state of mind’. Clerk and Lindsell, who also take this view, say that negligence is ana_ sense a positive idea, an has nothing to do with a state of mind. Negligence is particular kind of behavior. Where a person drives a car without taking as much care.as, under the condition of the road the traffic and the time a reasonable driver of normal prudence would be required to take, his behavior what the law would called negligence. Negligence is the a faulty behavior. This faulty behavior is called negligence. In law itis no defence to say that the personLAWOF CRIME “ ‘ . ee Prof. Pathan’s SP. Law Classes, Pune. Page + 26 ‘@ (Class) 25510256, (Res) 26333908. concerned took as much care as looking to his own ability, he could take. A man must be capable in his line and must know the job with such ability as may normally be expected in that line or job. So hegligence js not something subjective but something objective. The law lays down and objective’ ” standard of care and says what normal care means. It is not the care of a particular individual, but the care generally expected of normal individuals under like citcumstances and in the like jobs of life: Negligence, really, is a faulty beliavior of conduct arising our of lethargy of the mind or out of ” ‘faulty thinking negligence is a faulty negative act, a default, a failure of the duty to take as much care as anormal person under the circumstances would take. It is objective because it is ‘something in the nature of external behavior. The objective theory looks inerely to the external and wrongly ignores the internal act i.e. default that precedes the external. And objective mens rea is not looking int6 the mind of an accused but is instead looking externally, despite still beifig concerned with the state of mind of an accused in general terms. On this, basis, Courts finds one liable for the failure to take reasonable precautions ina way that a reasonable ‘person would-have done. An objective test therefore, looks at the perspective of a reasonable person: Itcompares the action of an accused or defefidant to the standards of the réasonable person and th prosecution must show that the conduct dropped below these staniddrds. The judge and jury must therefore look to the quality of the behavior of thie accused or'defendant aid compares it to the perspective of a reasonable person, meaning that the defendants cannot escape liability by simply’ claifhing that they did not intended to do it. In addition, it délivers a clear message to society that an anti social approach which disregards protected values creates a hazard that justifies thei imposition of criminal liability, potentially acting as a deterrent te potential offenders: Thus, this theory says that negligence is an objective fact: Itis not an attitude of mind or a form of mens rea, but it is a kind of conduct. Negligerice is a breach of duty to take care, It means that one should. take precaution against the harmful results of one’s actions and he must refrain'from - Uunreasonably dangerous kind of conchict. Pollock, the founder of the theory, says that negligence is contrary of diligence, and no one describes diligence asa state of mind, So it is never a imental state. Itis submitted that this view holds well in the law of tort where negligerice‘means a failure to achieve the objective standard of a reasonable man. Ifa person failed'to achieve this standard, the defence on’ the ground of mental state that he took, the utmost care shall be of no avail to him. The same is the: principle in criminal law also. 5. ° Conelusion:-~ According to subjective theory, negligence is state of mind.The subjective mens rea or negligence is concerned with the mind and perspective of the accuse which asks what was going in his mind at the time of the actus reus. The subjective mental state of the accused cannot be determined by comparison to what the ‘reasonable man’ or ‘to what the judge or jure would have in mind but instead, the prosecution must prove that the accused acted in an internal state of mind of either intention or recklessness: According to objective theory, negligence is behavior or type of conduct. According to the objective theory, ‘itis not a state of mind or typé of mens rea, but a particular type of conduct’i “ LAWOR CRIME. (Prof. Pathan’s. §.P. Law Classes, Pune. Page’: 27 ‘@ (Class) 25510256, (Res) 26333908. PRINCIPLES OF CRIMINAL LIABILITY:- - : Qt. Discuss two essential ingredients to. constitute an offence as per the, ¢ provision of the IPC. “Actus non facit reium, nisi mens sit rea”. Comment. “Discuss the principle”actus non facit reum, nisi mens sit rea” or there. con be no crime without a guilty mind? Or there are two conditions to be fulfilled before a liability can be imposed, what are they, discuss? State the importance of Mens Rea in criminal offence. Are there any exceptions to.it? “Two ingredients are essential to constitute an offence.” Comment. 7 SYNOPSIS:- 1. Introduction ~ 2. Meaning of actus reus 3... Meaning of mensrea 4. Mens rea under the Indian penal code 5. Strict liability 6 Case law 7. Conclusion uot 1. Introduction j Crimeis an act committed or omitted in violation ofa public law forbidding or commanding it Some criminologists define crime in.terms of criminal behaviour. According to them.” Crime is an act that has been shown to be actually harmful to society or thatis believed to be socially harmful by a group of people that has the power to enforce its beliefs, and that places such act under the ban of positive penalties.” The meaning of Latin maxim, actus non facit reum, nisi mens sit rea, there can be no crime without guilty mind. To make a person criminally liable, it must be proved that the conduct was accompanied by a legally blameworthy attitude of mind. Thus, there are two components of every crime, a physical elements anda mental element, usually called actus reus and mens rearespectively 2, Meaning of Actus Reus:- ° The word actus connotes a ‘deed’, a physical result of human conduct. The word reusieans “forbidden by law’. The word actus reus, may, therefore, be defined as ‘such result of human conduct as the Jaw seeks to prevent’, The actus reus is made up of three constituent parts, namely: i) - “human action which is usually termed as ‘conduct’ ii) theresult of such act in the specified circumstances, which is designated as ‘injury’, and iii) such actis ‘prohibited by law’. i) Humanaction: conduct- ‘The first chief characteristic of a crime is that the offender or accused is human being. Anact is defined as “an event subjéct to the-control of the will of the human being”. Thus an act means something done voluntarily by a human being. These human actions includes acts of commission as well as acts of omissions, e. g. giving a blow, failure to arrest accused, etc. For the purpose of fixing criminal liability the act may be analyzed as consisting of three parts; (@) its origin in some mental or bodily activity or passivity of the doer, that is, a willed movernent or omission, (b) _ itscitcuimstances, and, () _ its consequences.Lawor cui g Prof. Pathan’s _S.P. Law Classes, Pune. ~~ Page : 28 ‘@ (Class) 25510256, (Res) 26333908. Under modern criminal law only persons are made criminally liable. U/s. 11 of Indian Penal ‘Code person includes any company or association or body of persons whether incorporated or not, In short; the word person includes not only human being, but also legal persons. There are ceitain offences which are alsocommitted by legal persons though short of human limbs. Because of the development of industrialization, an emergence of new corporate jurisprudence, corporate criminal liability came into existence. Even publit corporations like State will be subject to criminal liability for the criminal wrongs, unless otherwise provided for. ii) _ Result of conduct - It is one of the essential to constitute the ctime that there must always-be a result brought about by human conduct; a physical event which the law prohibits, e. g. in case of murder the death is caused by the conduct of the accused, which is actus reus. Thus crime is constituted by the event and not by the activity which causes the event, iii). Acts prohibited by law - Only those acts are crimes which are’prohibited by law. Thus no aét is crime unless prohibited. by law, ¢. g. no crime is committed when 4 soldier in a battle field shoots an enemy because the act is, authorized by law. The Queen is not actus reus of crime, for there is a lawful justification for it. Similarly, no crime is committed when a person exercising his lawful right of private defence causing harrpto another. In the same way an act of omission, to be punishable must be an illegal omission of a bréach of legal duty, e.g. a jailor will be guilty of murder if he starves the prisoners in charge to death. 8.32 0fLP.C. provides that words referring to act include illegal omission. The S. 32 reads — “every part of this Code, except where a contrary intention appears from the context words which refer to acts done extend also to legal omissions.” S. 43 defines ‘illegal’ and itreads : ‘The word ‘illegal’ is applicable to every thing which is an offerice or which is prohibited by law, or which furnishes ground for a civil action; and a petson is said'to be”) pe bound to do’ whatever itis illegal in him to omit.’ S.33 ‘Act’ ‘Omission’ - The word ‘act” denotes as well as a series of acts as a single act; the word ‘omission’ denotes as well as a series of omissions as a single omission. S. 36 Effect caused partly by act and partly by omission — Wherever the causing ofa certain effect, or an attempt to cause that effect, by an act or by an omission, is an offence, itis to be understood that the ‘causing of that effect partly by an act and. aly by an omission is the same offence, Illastration - A, intentionally causes Z's déath, partly by illegally omitting to give Z food, and partly by _ beating Z. Ahas committed murder. Illustrations of ‘omission’ to do acts amounting to crimes — ‘There are certain omissions for which IPC expressly provides — i) Omission to produce documents, S. 175 ii) Omission to give notice of information, S. 176. 3. Meaning of Mens Rea:- Actus feus reférs to the physical aspect in a crime. Besides this, there is a mental element ina time. Thus, ctime consists of actus reus plus mens rea. This can be seen from the maxim, “Actus non facit reum nisi mens sit rea”.: Laworerinte Prof, Pathan’s S.P. Law Classes, Pune, Page: 29 ‘@ (Class) 25510256, (Res) 26333908. Mens rea is a technical-term, generally taken to mean some blameworthy mental condition, whether constituted by intention, knowledge or otherwise. There must be mind at fault to constitute a crime. No act per se criminal, the act becomes criminal when the Actor dogs it with guilty mind, e. g causing injury to the assailant in self defence is no crime, but the moment injury is caused with intent to take revenge, the act becomes criminal. In the same Way shooting in air is not.crimié but shooting with intent to kill aman isa crime. Mens rea is a wider concept. It includes intention, motive, knowledge, recklessness and negligence, etc., which are often used to indicate the different possible mental attitudes constituting actus reus of a particular crime. : “Guilty mind” is an intention to do that which one knows to be wrongful or prohibited by law. Where a person does a wrong, he is a wrong doer. It is that condition of mind that attracts liability. Glandwill Williams says that a guilty mind implies — i) that the conduct is voluntary and, it) there should be an intention to produce evil consequences or recklessnéss in producing them, ‘To appreciate the meaning of mens reaitistuecessary fo have a clear conception of words like iniention, motive, knowledge, recklessness, and negligence, etc, which are often used to indicate the different possible mental attitude are conditions constituting the actus reus of a Particular crime. a Intention - : # “Intention means a purpose or desire to bring about a contemplated result or foresight that Certain consequences will follow from the conduct of a person. For instance, if a man throws a boy from a high tower or cut off his head, it is obvious that he desires victim’s death. b. Motive - : i Intention must be distinguished from motive, Motive is the reason or ground of an action, whereas intention is the violation or active desire todo an act. In other words, intention is an operation ofa will directing an open act, while motive is the feeling that prompts the operation of the will the ulterior object ofthe person willing, e.g. A kills B, The intention was to cause déath and the motive Was fo remove political rivalry. Thus motive is ulterior object for which the act is done. One can find Out the motive ofa person by asking why he did that act and the intention of a person by asking haw he didit. Motive is not’a basic for criminal liability- Criminal law takes into account only a man’s intention and not his motive A good motive will notrender lawful that is in fact a crime. If a man steals food in order to feed his starving child, the act. ‘amounts to theft, though the fact that motive behind the act as to save the life. c. Knowledge — Intentions is also distinguishable from. knowledge. An intention to commit an offence may be inferred from knowledge, though, at times, intention ard knowledge merged into each other. Knowledge is the awareness of consequences of an act. A man may be aware of the consequences of the act, though he may not intend to bring them about, e. g. A attacked by a tiger, calls out to B to fire in order {0 save him, B fired and caused the death of A. B isnot liable for A’s death because the act was not Antentional.LAWOF CRIME (Prof. Pathan’s _S.P. Law Classes, Pune. Page: 30 ‘@ (Class) 25510256, (Res) 26333908. d.— Recklessness ~ Itis a state of mind of axperson who foresees the possible consequences of his conduct, but acts without any intention or desire to bring them about. In other words, recklessness is an attitude of ‘mental indifference to obvious risk, e. g. driving at high speed through a narrow anid crowded lane is. areckless act’,e. g. Salman Khan causing death by driving car with recklessness, & Negligence + Negligence is used to denote want of care and precautions, which a reasonable man would have taken under the particular citcumstances of the case. It is a state of mind of a man, who pursues a course of conduct without adverting at all to its consequences. In crimes, negligence, unlike in case of torts, is not the basis of liability in general. Itis only in few cases that IPC fixes criminal liability on the ground of negligence, for instance, if'a man affects the life, or personal safety of others, such as in case of rash and negligent driving, etc. 4. - Mens Rea Under The Indian Penal Code: : The doctrine of mens rea lias no application to the offences in general under the liidian Penal Code unlike the common law. The framers of IPC have not mentioned mens rea as such anywhere in the Code. However, the doctrine has been incorporated in two ways ~ 1. ~The provisions as the state of mind required for a particular offence have been added in the 2 section itself by using such words as “intentionally”, knowingly, voluntarily, fraudulently, and dishonestly, etc. depending upon the gravity of offence. Therefore, itis said that there is no room to the doctrine of mens rea in Indian Penal Code. 2. Theconcept df mienis rea has been incorporated into the proviso is relatig to general exceptions in Chapter of the Code. : Where the legislature has’ omitted to lay down’a particular state‘of mind as an essential ingiedients (elements) of an offence under the Code; the presumption is that such an omission is deliberate and in such case doctrine of mens rea will not apply; e. g. an offences like waging war against Government of India, seditidn, kidnapping, abduction, no elements of mens rea is required for fixing criminal liability. ~ . . tis for the Court to apply the doctrine of mens rea in deciding the ‘cases even whbre the Section does not speak any state of mind. . 5. Strict Liability : ‘The legislature may pass an Act that whoever commits a wrong whether knowingly or ‘unknowingly should be punished. In such cases, even though there is no mens rea, they are punished. These are the cases of absolute or strict liability. Generally, public welfare offences or regulatory offences come under'strict liability, e. g. selling adulterated goods, violating licensing laws. ‘A general rule is that mens rea applies to all criminal offences but it is subject to certain exceptions. In other words, in some exceptional circumstances, a person is held responsible for his criminal act even though there was no mens rea. Such offences to term as offences of strict liability or absolute liability. The doctrine of mens rea not applicable ~ . 1. Theacts are not criminal in any real sense but are of quasi-criminal nature and are prohibited in public interest under penalty, e. g: social and economic offences, offences relating to food and drugs.: LAWOF CRIME [Prof. Pathan’s — S.P. Law Classes, Pune, Page : 31 ‘B (Class) 25510256, (Res) 26333908. 2. Thesecond category includes the cases of public nuisance, libel and contempt of courts. 3. The category includes cases in which although the proceeding is crimisal. tis really amode of enforcing civil right, e. g.cases of violation of municipal law and regulations, The doctrine of strict liability isa departure from the common law principle of actus non facit rem, nisi mens sit rea and therefore itis criticized. Some jurists say that strict liability offences are not offences at all. Prof. Hall preferred to call strict liability offences as offences relating to economic Jaw oradministrative regulations rather than penal offences. The exclusion of mens rea from statutory offences is justified on the ground that such laws are enacted by the legislature to preserve and protect social and economic interest of the community. Moreover, punishment provided in these cases are generally a nominal fine. The object of such regulation isnot to punish the offender, but to'put pressure upon persons to discharge their duties properly in the interest of public health’and safety of the community. and to préserve morals. 6. CaseLaw i) Crown V. Prince (1875).LR 2 CCR 154 (HL): Henry Prince took an untnarriéd gir! named Annine Philips out of the possession and without the consent of her father. She was under 14 but looked very much older than 16, She told Prince that she was 18. Prince’s defence was that when he took her, he believed lier on reasonable grounds to be 18. Held he was guilty w/s 55 of the offences against the Person Act,-1861 which states- Whoever shall unlawfully take or cause to be taken any unmarried girl being under the age of 16 years out of the possession and against the will of her father or mother or any other person having the lawful care or charge of her shall be guilty of a. misdemeattor. i Ona case being reserved for crown cases, by a majority of fifteen to-one, the court was of opinion that the conviction was correct. Itwas proved that the accused believed on reasonable grourids that the girl was above sixteen (eighteen years old) and the jury found upon reasonable evidence that before the accused took her _ away she told him that she was eighteen, and that the’accused bonafide believed that statement and that. such belief was reasonable. The lower court convicted the accused and the House of Lords by a~ majority of fifteen to.one, upheld the conviction. ‘The Courtheld that the accused thotigh has not knowledge actually that the girl was above the eighteen years, he knew that he was committing something immoral and hence possesses mens rea, ii) - Queen V.Tolson (1889) 23 (QBD 168 (HL): In 1888, the prisoner Martha Ann Tolson was convicted of ee at the court of Assizes at Cartisle. The martiage of the prisoner to Tolson took place on 11 September, 1880, that Tolson deserted her on 13 December, 1881; and that she and her father made inquiries about him and learned from his elder brother and from general reports that he had been lost in a vessel bound for America, which went down with all hands on board. On 10 January, 1887, the prisorier, supposing herself to be a “widow, went through the ceremony of marriage with another man. The circumstances were'all known tothe second husband, and the ceremony was in no way concealed. In December, 1887, Tolson returned from America.LAWORCRIME e : ‘ 7 Prof. Pathan’s — S.P. Law Classes, Pane. Page : 32 ‘@ (Class) 25510256, (Res) 26333908, Steplien J. directed the jury that a belief in good faith and on reasonable grounds that the husband cf the prisoner Was dead would not bea defence to a charge of bigamy. The jury convicted the prisoner, stating, however, that they thought that she in good faith and on reasonable grounds believed her husband tobe dead, lal the time of the second marriage, and the judge sentenced het to one day’s imprisonment. The Court for Crown cases, by a majority of nine to five, quashed the conviction. It was held that she bonafide believed that her husband to be dead, she has no mens rea. An “innocent act always miakes a defence in common law. ‘ iii) Supreme Court of India in Director of Enforcement V. M:C.TM,, Corporation Pvt, Ltd. & Others, AIR 1996, SC 1100, observed that mens reais a state of mind. Under Criminal Law, ‘mens rea’ js considered as the “guilty intention’ and unless itis found that the accused had the guilty intention to commit the crime he cahnot be held guilty of committing the crime. 7. Conclusion:- Thus actus and mens ‘rea are the two basic elements to constitute crime: No act per se is criminal. The act becomes criminal when the actor does it with guilty mind. The concept of guilty mind is very wider. It includes intention, motive, knowledge, recklessness and negligence etc. Guilty ‘mind is an intention to do that act which he knows to be wrongful or prohibited by law. é ; : *LAWOF CRIME Prof. Pathan’s _ S.P. Law Classes, Pune. Page : 33 ‘@ (Class) 15510256, (Res) 26333908. a MODULE - 02 GENERAL PRINCIPLES OF CRIMINALLAW NULLA POENA SINE LEGE, NULLUM CRIMENSINE LEGE Qin. Discuss the maxims or explain the maxim ‘nulla poena sine’lege, nullum crimen sine lege’ SYNOPSIS:- 1. Introduction Meaning of maxim, ‘nulla poena sine lege, nullum crimen sine lege? 3. The principles of legality ‘nulla poena sine legé, nullum crimen sine lege’ 4. The basis or theoretical foundation of the maxim ‘nulla poena sine lege, nullum crimen sine lege’ 5. Applications of maxim under common law system and under international law. 6. Incorporation of maxim under Indian Constitution. 7. Cases 8 Conclusion Introduction: Iisa fundamental principle of criminal liability that no one shall be punishéd for an act which isnot an offence atthe time when the act was committed. Itis the basic duty of thestatein-a civilized society to maintain law and order and to govern the relations between the individual and individual and individual and the state by the rule made or recognized by the state. These rules enacted are nothing but laws. Law lays down the rights and duties ofthe individual. It prescribes what oneis to do and what one is not to do. When a person has committed wrong he will be liable. Therefore, any act either Commission or omission which is forbidden by law forthe time being in fotce is punishable. In short, ‘no one shall be punished for any act which is not a crime when the act was committed ' 2. Meaning of tnaxim, ‘nulla poena sine lege, nullum crimen sine lege’ Itis a Latin maxim that means ‘no crime or punishment without a law’. There én be no crime committed, and rio punishment meted out without violation of penal law as it existed atthe time. This basic legal principle has been incorporated into international criminal law and municipal and state criminal law. 3. The prineiples of legality ‘nulla poena sine lege, nullum crimen sine lege’: The principle of legality or nullum crimen in, nulla poena sine lege covers both prohibited criminal conduct (nulllum crimen sine lege) and sanctions for it (nulla poens sine lege) inits broadest sense, the principle of legality covers the following criminal provisions:- a) The principle of non-retroactivity (nullum crimen, nulla poena sine lege praevia) ») The probation against analogy (nullum crimen, nulla poena sine lege stricta) ©)» The principle of certainty. (nulluva crimen, nulla poena sine lege certa) @) The prohibition against uncodified i.e. unwritten or judge-made criminal provisions(nullum crimen, nulla poena sine lege scripta) eeLAWOF CRIME, | Prof. Pathan’s S.P LawClasses, Pune. Page : 34 @ (Class) 25510256, (Res) 26333908. Tn sum, these meais and act can be punished only if, at the’ time of its commission, the act was the object of a valid, sufficiently precise written criminal law to which a sufficiently certain sanction was attached. : 4. ‘The basis or theoretical foundation of the maxim ‘nulla poena sine lege, nullum crimen sine lege’:- : "There are vatious theories in support the principle of legality. Following are four basis of principle of legality:- a) It guarantees individual liberty against state arbitrariness:- ‘The principle of mullum crimen is considered as an indispensible tool for safeguarding individual liberties. The enjoyment of individual liberties requires that citizens no in advance there limits and the consequences for transgressing ‘them. These principle gives protection against state arbitrariness and provides individuals with foreseeability and calculability in the exercise of their rights. b) The need for fairness in criminal law:- Itis one of the essential requirement of substantial fairness that the individual must be able to know before hand whether his acts are liable to punishment. The legality principle is thus and important legitimacy factor of any system: of criminal law. c) Democracy and Separation of Power:- The jurists of social contract theory derived the principle of legality from the doctrine of social contract wherein citizens agree to accept limitations to their liberties only in so far as these is necessary to ensure peaceful co-existence with other members of society. The Legislator is direct representative of the parties to the social contract and therefore the legitimate institution to limit liberties and determined which conduct is punishable. The Legislature defines as precisely as possible criminal conduc! and sanctions for it. Judges only apply laws enacted by the Legislature. The nullum crimen principle serves took ptevent arbitrariness and activism. ‘There is no scope to the judiciary to enlarge and widen the scope of the law when the language of law is clear and precise. d). Purpose of Criminal Law: . ‘The basis of the legality principle is in the specific characteristics of criminal law. If the function of criminal law is to deter citizens from engaging in socially undesirable conduct, criminal conduct and any consequent sanctions must be defined with sufficient precision before the, commission of'such criminal act. The legality principle may finally be presented as a prerequisites of punishment as just retribution for a wrongful act. 5, Applications of maxim under common law system and under international law:- 3) Theidea of law limiting the arbitrary exercise ofthe executive power first gained prominence in the Charter of Liberties of Henry-1. These Charter laid the foundation of article 39 ofthe Magna Carta Libertatum (1215) which guaranteed that no free man shal deprive of his right unless by the law of land. Judicial precedent was the main principle of criminal administration ofjustice which brought legal certainty, law become predictable with the ideas underline the mln crimen principle. Jurists Locke and Blackstone where against retroactive law making aad gave emphasis on codification of aw because doctrine of judicial precedent gives discretions tothe judges. Today, most common law countries have statutory definitions of crimes.. LAWOF CRIME Prof.-Pathan’s. _§.P. Law Classes, Pune. Page : 35, ‘@ (Class) 25510256, (Res) 26333908. ii) Article IQ) (3) of the Constitution of United States of America contained the first explicit \ prohibition against ex post facto laws. Similar provisions are found in Austrian Criminal Code and French Penal Code. iii) - Universal Declaration of Human Rights, 1948 in the Chapter of Civil and Political Rights under Article 11 para 2 provides for freedom from ex-post-facto laws. It gives a very well structured definition of the principle, ‘No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed that the one that was applicable at the time the penal offence was committed.” iv) The same concept with nearly identical wording is found in several international and regional human rights treaties including the International Covenant on Civil and Political Rights, 1966 under Article 15 also provides for non-retroactive application of criminal law, The European Convention for the Protection of Human Rights and Fundamental Freedom (ECHR) 1950 and the American Convention on Human Rights (ACHR) 1969. v) International Criminal Law:- The legality principle was at the heart of the debate about the legitimacy of the Nuremberg and Tokyo judgments when International Military Tribunal where constituted to punish German and Japanese military officers because the pre-existence of crime of aggression, grime against humanity, war crimes was very doubtful as it was not firmly established before 1945. The International Military Tribunal held that the legality principle not binding upon as a matter of strict law, : 6. . Incorporation of maxim under Indian Constitution. Protection against ex-post facto laws:- Art 20 (1):- No person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence, not be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence. Art. 20 (1) has two parts - the first part gives a protection to a person from coivviction for any act which was not an offence at the time when the act was done or committed but that act was made an offence or crime afterwards, e.g. Mr. X has dorie an act in 1980 which was not an offence at thatitime under any law in force. But Government passed a law ini 1982 and thereby made that act as an offence and provides punishment. Now Government cannot prosecute Mr. X and punish him for his act done in 1980 because it was not an offence at that time when Mr. X did this act. The Second part of Art. 20(1) protects the person from the penalty greater than what was applicable at the time of committing the offence. It means whatever was the penalty or punishment at the time when offence was made is only to be given. e.g. Mr.X committed an offence in 1980, when punishment provided was 2 years for that offence. But Government in 1993 by law has increased or enhanced the punishment for that offence for 5 years then Mr. X shall not be given 5 years punishment in 1993 when the trial was conducted, but only two years punishment shall be given which was there when the offence wa’ committed. “This also provides that the punishment, which was greater when the offence was committed if subsequently reduced then the offender, will get benefit of lesser punishment. Mr. X committed an offence in 1990 when the punishment was 5 years. But it was reduced in 1995 andmade 2 years. If X is tried after 1995 and convicted he will given 2 years punishment and not of 5 years.LAWOF CRIME Prof. Pathan’s __S.P. Law Classes, Pune. Page : 36 ‘@ (Class) 25510256, (Res) 26333908, 1. a) b) °) ad Case Laws:- Adolf Eichmann v/s Attorney-General of the Government of Israel, Supreme Court of Israel, In this case the doctrine of ‘nulla poena sine lege, nullum crimen sine lege’. Eichmann was accused of having caused the death of millions of Jews in the Second World ‘War from December 1939 to May 1945. He was also accused of war crimes committed during World War-II. Eichmann was accused of having been and active member of three Nazi organizations that were declared criminal by the International Military Tribunal in Nuremberg. He was arrested in Argentina on 11 May 1960 by the Israeli secret service. The Session Court framed charges against him for crime against Jewish people, crime against humanity, war crimes and belonging to a hostile organization. He took defence that Israel Court has no jurisdiction to try for acts not declared crime i.e. ex-” post-facto law. He acted under the order of the superior ie. Hitler but his argument was rejected by the Distriot Court and he was prosecuted for crimes and was awarded death sentence. He filed an appeal before the Supreme Court of Israel. The Court upheld the decision of the District Court which had observed that abhorrent crimes defined in the law are not crime under Israel law alone. These crimes, which struck at the whole of mankind and shocked the conscience of nations are grave offences against the law of nations itself. Therefore, so from International law relating to or limiting the jurisdiction of countries with respect to such crimes, international law in absence of and International Criminal Court, in need of judicial and Legislative organs of every Country to give effect to its criminal interdictions and to bring the criminals to trial. The jurisdiction to any criminals under International law is universal. Soni Devrajbhai Babubhyai v/s State of Gujrat and others, AIR 1991 SC 2173, In this case Supreme Court of India applied the principle of ex-post-facto-law, The issue was whether accused can be tried for offence under section 304-B IPC which was inserted in the Indian Penal Code in 1986 with effect from 19/11/1986. The death occurred on 13/08/1986 prior the amendment. The Amendment being prospective was in applicable to a death prior to amendment. The Trial Court and High Court rejected the plea of non-application of amendment. Hence, this special leave petition before Supreme Court. Supreme Court held that Section 304-B of IPC is a substantive provision creating anew offence and not merely a provision effecting a change in procedure for trial of a pre-existing substantive offence. As a consequence, accused cannot be tried and punished for the offence of dowry death provided in Section 304-B of the Penal Code with the minimum sentence of seven years imprisonment for an act done by them prior to creation of the new offence of dowry death. In Maru Ram v/s Union of India and others, AIR 1980, SC 2147, Supreme Couit observed that Art.20 (1) of the Constitution provides the rule that there can be no ex-post-facto infliction of a penalty heavier than what had prevail at the time of commission of the offence. In Sarla Mudgal v. India, AIR 1995 SC 1531, Supreme Court while interpreting S. 494 of LPC. ruled that the second marriage of a Hindu husband after conversion to Islam without shaving his first marriage dissolved according to law, would be invalid and the husband would be guilty of offence ws. 494 of LP.C.LAWOF CRIME Prof. Pathan’s “S.P. Law Classes, Pune. Page : 37 ‘B (Class) 25510256, (Res) 26333908. 8. Gonclusion:- ‘The principle of legality is a core value, ahuman right but also a fundamental defense in criminal law prosecution according to which no crime or punishment can exist without a legal ground. Nullum crimen, nulla poena sine lege is infact a guarantee of human liberty. It protects individuals from state abuse and unjust interference, it ensures the fairness and transparency of the judicial authority. The principle of often associated with the attempts to constrain states, governments, judicial and legislative bodies from enacting on retroactive legislation, or ex-post-facto clauses and ensuring that all criminal behavior is criminalized and all punishments established before the commencement of any ctiminal prosecution. NARROW CONSTRUCTION OF CRIMINALLAW OR PENALSTATUTE, Qin. Discuss the rule of interpretation or construction of statute in regard to penal statute? SYNOPSIS: 1. Introduction 2. Meaning of Penal Statute {3 Importanceof Penal Statute £4, Basic rules of Interpretation of Penal Statute a) Construction to be strict 4) Interpretation to be correct and precise ¢) Interpretation to be broad and liberal d).” Principles of natural justice to be considered €) _ _ Suppression of mischief and advancement of remedy A) The concept of guilty miind to be construed'carefully 5. Case law. : 6 Conclusion. ' 1. Introduction - ‘The Interpretation of Penal Statute is done with the help of all basic rule of Interpretation of ‘Statute. While interpreting the Penal Statue one thing must be kept in mind that regard to be given to the intention of the legislature. The object and the language used in the statute helps to determirie the exact intention of the legislature. The penal statue must always be strictly construed. The construction of any one provision in the penal statute must be in harmony with the other provision in the Act. 2, Meaning of Penal Statute Penal statutes are. those which provides penalties for offences committed by the persons. Such statute may be in the form of comprehensive criminal code or consisting of large number of sections providing punishment for different offences. These statutes provide punishment including imprisonment, death sentence, forfeiture of property, fine, etc. S. 2 of Indian Penal Code provides ‘that any person who commits any act which is an offence under Indian Penal Code, is iiabie to be punishied if such act is committed within territory of India irrespective of his caste, creed, religion, nationality etc.-LAWOF CRIME Prof. Pathan’s S.P. Law Classes, Pune. Page : 38, ‘@ (Class) 25510256, (Res). 26333908. Followings are some of the Penal Statutes : Indian Penal Code, 1860 Prevention of Food Adulteration Act, 1954 Prevention of Corruption Act, 1988 Arms Act, 1959, etc. 3. Importance of Penal Statute - The court always has to rememiber that an accused must get fair trial in accordance with principles of natural justice. The court must interpret a penal statute in a manner which will avoid the delay resulting in harm not only to the individual involved but also to the society. 4. Basic rules af Interpretation of Penal Statute - a) _ Construction to be strict - e Penal statute determines the types of offences and provide for the punishment for the those offences. Penal statutes are of two types - i) Substantive and ii) Procedural. The provisions of the Penal statute to be interpreted strictly and precisely. The words and expression used in the statute must be given accurate meaning as. intended by the legislature, In case there are two possible congtruction of any provision in the penal statute then a construction favourable to the person, must be decepted and adopted. In case, if the language of the statute is clear and unambiguous, then no additional meaning to be added or implied by the courts. The provisions of Penal statute must not be interpreted by the court which make them unjust, unfair and oppressive. b) Interpretation to be correct and precise - ‘The provisions of Penal statute to be construed accurately and properly and not merely strictly or liberally. The Court has to give emphasis on a proper construction in order to give effect to the object of the statute and to bring out the true and real intention of the legislature. The court has to apply its mind in consideration of basic rules of interpretation for the correct and precise interpretation of Penal statute. c) Interpretation to be broad and liberal - Whenever the court finds the term of Penal statute ambiguous, it is the duty of the oe to interpret in a broad and liberal sense in a compelling circumstances. The construction of Penal statute miust be iccurate, precise and correct in regards to the terms used in the statute. d) _ Principles of natural justice to be considered - Art. 21 of Indian Constitution provides that right to life also includes right of free and fair tial. Therefore, court is bound to observe principles of natural justice. An accused must get a fair and just trial in accordance with the principles of natural justice. The court shall make every effort to avoid delay in trial. The procedure to be followed by the court must be simple and speedy to ensure fair trial to an accused. ) Suppression of mischief and advancement of remedy - The court has to follow mischief rules of interpretation therefore Penal statute to be construed to suppress the mischief and advance the remedy. In cas¢ of two reasonable and possible construction of any provision occurred, the court shall lean towards the provision which exempts an accused from penalty than imposing the penalty. They shall take every care not to bring an accused in the purview of provision of the statute if the terms of the statute do not expressly include the individual within the provision of Penal statute.LAWOF CRIME Prof. Pathan’s S.P. Law Classes, Pune. Page : 39 ‘FH (Class) 25510256, (Res) 26333908. f) The concept of guilty mind to be construed carefully - It is a basic principle of criminal jurisprudence that no one shall be punished unless the act is done with criminal intention. The Latin maxim, “Actus non facit reum nisi mens sitrea’”, means, an act cannot make a man guilty unless he has criminal intention. Both elements ie. Actus and mens rea. Itis a fundamental rule of criminal jurisprudence that 99 criminals may go unpunished but one innocent should not be hanged. To prove the guilt of the accused beyond reasonable doubts, there are two basic elements of crime to be satisfied for the liability of offender i.e, actus and mens rea. However, some times criminal law dispenses with the element of mens rea i. guilty mind. Such offences are known as offences based on principle of strict liability, In offences based on Strict Liability Principle, the Court needs not to go into the question of mens rea. g. S. 140 of Motor Vehicle Act, 1988 of “No Fault Liability Inthe first interpretation of Penal Statute is that the provision of the penal statute to be construed strictly. It means if the definition of a provision in the statute provides some ingredients of the offence, then it is the duty of the Court to satisfy itself that all these ingredients of this offence have been fulfilled. 5. Caselaw : i) & In Sakshi v. Union of India, (2004) 5 SCC 518 it was held that a statute enacting an offence or imposing a penalty is to be strictly constructed, ii) InState of Jharkhand v. Ambay Cements, (2005) I SCC 368 the Supreme Court ehld that it is settled rule of interpretation that where a statute is penal in character, it must be strictly construed and followed. In Rahul Builders v. Arihant Fertilizers and Chemicals, 2008 (4) Mh. L.J. 365 SC.It was. held that penal provision should be construed strictly. iv) InRam Chandra Bhagat y. State of Jharkhand, (2010) 13 SCC 780 it was held that unless all ingredients of a penal provision are stratified, a person cannot be punished. ¥) _ InGurcharan Singh v, Directorate of Revenue Intelligence, (2008) 17 SEC 28 it was licld that though penal provision is generally construed strictly yet purpose of a statute has also to bekept in view. 6.. Conclusion:- While interpreting Penal statute court has to give effect to the true and real intention of the legislature. The construction of the Penal statute must be strict and literal when words are clear and expressed. When the provisions of Penal statute are ambiguous, the court is empowered to interpret them in liberally. In case there are to alternative construction of any provision of Penal statute is possible, construction in favour of an accuse be taken and applied. There must accurate, precise and correct construction of the provisions of the Penal statute. The court is not prevented to apply beneficial and harmonious consttuction in case of ambiguity or necessity. The court is bound to follow the “principle of natural justice while interpreting provisions of the Penal statute.LAW OF CRIME Prof. Pathan’s _ S.P. Law Classes, Pune. __ Page : 40 ‘@ (Class) 25510256, (Res) 26333908. PRINCIPLE OF MALAINSE MALAPROHIBITA. Qt. Discuss the principle of Mala in Se and Mala-Prohibita? PRINCIPLE OF MALAINSE Meaning:- Itis ain wrong itself, It is an act or case involving illegality from the very nature of transaction. According to Black’s Law Dictionary, ‘an act is said to be mala in se when itis inherently and essentially evil, i..c immoral in its nature and injuries in its consequences, without any regard to the fact of its being noticed or punished by the law of the State’. . Mala in se crime is one which is naturally criminal, on moral grounds e.g. Murder, Assault, false imprisonment, fraud and malum in se crimes because these acts are universally condemned as wrong. Itis a Latin term which means crimes that are thought to be inherently evil or morally wrong, and thus will be widely regarded as crimes regardless of jurisdiction. Mala in se offences are felonies, crimes against properties, immoral acts, corrupt acts by public officials. Mala in se, which is plural of malum in se, are criminal acts that are wrong because they violate the moral, public or natural principles of a society. In the traditional British griminal justice system and the American justice system is based on crimes that offended society where punished by deatli or serious harms. Today, mala in se crimes are not traditionally punishable by death, but still face serious sentences. The mala in se constitute the basis for common law or the system of law established by customs in England prior to colonization of then United States. These are actions that are deemed evil because of the nature of the action and are well recognized as crimes even’if a person has not read the Jaw. Crimes like this are mala in se crimes-those which violates societies view of morality. These are more serious crimes which can result in a prison sentence. PRINCIPLE OF MALAPROHIBITA:- Meaning:- ' These.are the offences because they are result of Legislative structure and not result of nioral condemnation. These are crimes which are regulatory in nature. Mala Prohibita refers to offences that do not have wrongful associated with them. Mala Prohibita statutes are usual lly imposed strictly as there does not need to be mens rea component for punishment under those offences, just the act itself. It can be argued that offences that are mala prohibita aie not are not really crimes at all Itconsist of crimes that are not inherently evil in themselves, but rather are crimes because they violate a law instituted in a particular society. A person may be unaware that he is committing a crime mala prohibita because those actions are not obviously wrong e.g. someone unaware of certain traffic rules ina region might violate those rules without meaning to do so. Mala Prohibita crimes are usually considered less serious and are often charged as misdemeanor crimes or infractions where prison is not a possible penalty. Mala Prohibita crimes are criminal acts that are wrong because they violate a statute or law rather than being an action that harms or offends society. Most of the time, mala prohibita crimes are less severe than mala in se crintee.g. a parking violation, tax fraud and copyright violation are considered tobe mala prohibita crimes. Similarly, white collat crimes are non-violent crimes committed for business or financial gain hence, are classified as mala prohibita crimes.