Law of Crimes

Nature annd Concept of Criminal Law

Personal safety,particularly security of life,liberty and property,is of
utmost importance to any individual.Maintenance of peace and
order is essential in any society for human beings to live peacefully
and without fear of injury to their lives,limbs and property.This is
possible only in states where the penal law is effective and strong
enough to deal with violators of law.Any state,whatever might be its
ideology or form of government, in order to be designated as a state,
should certainly have an efficient system of penal laws in order to
discharge its primary function of keeping peace in the land by
maintaining law and order.The instrument, by which this paramount
duty of the government is maintained, is undoubtly the penal law of
the land.

Penal law is an instrument of social control.Its approach is

condemnatory and it authorises the infliction state punishment.To
criminalise a certain kind of conduct is to declare that it should not
be done,to institute a threat of punishment in order to supply a
pragmatic reason of not doing it, and and to censure those who
nevertheless do it.Penal law does it by prohibiting ‘undisired’ and
‘harmful’ human conduct and ‘punishing’ the prepertrators thereof
or posing threat of punishment to the prospective violators.It,
therefore, defines and punishes ‘act’ or omissions’ that are perceived
as :

1. Attacks on public order,internal or external;

2. Abuses or obstructions of public authority;
3. Acts injurious to the public in general;
 4. Attacks upon the persons of individuals, or upon rights annexed
to their persons; or
5. Attacks upon the property of individuals or rights connected
with, and similar to, rights of property.

However, criminal law, which ultimately censures publicly an

individual by labeling a person a criminal, has to balance between
the ‘collective(valued) interests’ and ‘individual interests’.An
‘harmful conduct’ or ‘misconduct’ to be condemned by criminal law
needs to be judged in terms of its effect on valued interests, which
may be individual interests or some form of collective interest.This
essentially involves a few pertinent issues, namely how the criminal
law ought to be shaped, what its social significance should be, when
it should be used and when not.

Crime
Any conduct which a sufficiently powerful section of any given
community feels to be destructive of its own interests,as
endangering its safety,sability or comfort,it usually regards as
especially heinous and seeks to repress with corresponding severity;
if possible it secures that the forces which the sovereign power in the
State can command shall be utilized to prevent the mischief or to
punish anyone who is guilty of it.

According to Blackstone, crime is defined as ‘as an act committed or

omitted in the violation of public law forbidding or commanding
it.’However, the ‘public law’ has different accepted connotations.

Austin,for example,perceived ‘public law’as identical with

constitutional law.If this meaning is accepted,crimes would cover
only political offences.This view not only narrows scope of the
definition of crime but will also make the definition of no practical
use.

Stephen modified and reconstructed the definition to read as: ‘A

crime is a violation of a right,considered in reference to the evil
tendency of such violation as regards the community at large.’

Elements of Criminal Liability

The fundamental principle of criminal liability is that there must be a
wrongful act—actus reus, combined with a wrongful intention—
mens rea.This principle is embodied in the maxim, actus non facit
reum nisi mens sit rea, meaning ‘an act doesnot make one guilty
unless the mind is also legally blameworthy.’A mere criminal
intention not followed by a prohibited act cannot constitute a crime.
Similarly,mere actus rea ceases to be a crime as it lacks mens rea. No
act is per se criminal;it becomes criminal only when the actor does it
with guilty mind.No external conduct,howsoever serious in its
consequences, is generally punished unless the prohibited
consequences is produced by some wrongful intent, fault or mens
rea.In juristic concept, which must be criminal and cooperate with
the former.

Acuts rea has been defined as ‘such result of human conduct as the
law seeks to prevent.’Mens rea,which is a technical term generally
taken to mean some blameworthy mental condition or ‘mind at
fault’ ,covers a wide range of mental states and conditions, the
existence of which would given a criminal hue to actus rea.
Act to be Voluntary

Act means a conscious or willed movement. It is a conduct, which

results from the operation of the will. According to Austin, any
movement of the body, which is not consequence of the
determination of the will, is a not voluntary act. It is only a voluntary
act that accounts to an offence. Taking the analogy of A pulling the
trigger of a gun, as a result of which a bullet lodged in B’s body
causing his death, A is guilty only if the act of pulling the trigger was
voluntary and conscious act. If the gun had been triggered by
mistake or accidently, then it is not an offence and A is not guilty of
murder. If a person is compelled by force of circumstances to
perform an act forbidden by law, he cannot be said to do it
voluntarily, and therefore, he will not be held liable for the
consequences of that act. An act on the part of the accused is
involuntary where it is beyond his control or beyond the control of
his mind. The situation is known as automatism. Common examples
of automatism are: reflective movements of an external origin,
somnambulism, epilepsy, hypnosis and hypoglycaemia .

In IPC, ss 32 and 33 define the term ‘act’. S32 provides that in every
part of the code (except where a contrary intention appears from the
context) , words, which refers to ‘acts done extent to illegal
omissions’. ‘s33 provides that the word ‘act’ includes ‘a series of acts’
and the word ‘omission’ denotes a series of omissions as a single
omission.’ A combined effect of ss 32 and 33 is that the term ‘act
takes into its fold one or more acts or one or more illegal omissions.
The IPC makes punishable omissions, provided they are legal and
have caused, intend to cause,or likely to cause,like acts, an actus rea.

The term ‘voluntarily’ is defined in 39, IPC. Its runs as under

Section 39: “Volunatrily”.—A person is said to cause an effect
“voluntarily” when he causes it by means where by he intend to
cause it, or by means which, at the time of employing those means,
he knew or had reason to believe to be likely to cause it.

Act to be prohibited by law

In order to create criminal liability, it is sufficient there is mens rea
and an act ; the actus must be reus. However harmful or painful an
event may be it is not actus reus unless criminal law forbids it. In
other words, the act must be one that is prohibited or commanded
by law.

Act should result in Harm

Offences like treason, forgery, perjury and inchoate or incomplete
crimes are per se offences, irrespective of whether they actually
result in harm or not. The causing of actual harm may or may not be
a part of the actus rea.

Act to be direct cause of harm:

Where the causing of harm is a requisite of an offence, then such
harm should have a casual effect to the act. In other words, the harm
caused must be a direct result of the act. It must be causa causans –
the immediate cause, and it is not enough that it may be causa sine
qua non – the proximate cause.

Other requirements of law:

Absence of consent, accused must be sworn as a witness, receipt,
etc.
Actus Rea
The term actus rea has been given a much wider meaning by
Glanville Williams in his Criminal Law. He says :

When we use the technical term actus rea we include all the external
circumstances and consequences specified in the rule of law as
constituting the forbidden situation.

Actus reus includes negative as well as positive elements. For

example, the actus reus of murder is causing of death of a person. It
also includes circumstances such as whose death is caused.

The requirements of actus reus varies depending on the definition of

the crime. Actus reus may be reference to place,time,person,consent
, the state of mind of the victim, possession or mere preparation.

Place : In the offence of criminal trespass, house breaking, or in

aggravated forms thereof, actus reus is in respect of property (ss416-
4620).

Time: In the offences of lurking house trespass or house-breaking

by night in order to commit an offence or after preparation to hurt,
assault, etc. The actus reus is in respect of both place and time
(ss456-58).

Person : In offences of kidnapping and abduction,procuring a

minor girl,etc. The actus reus is in respect of the person (ss359-74).

Consent : In offence of rape, consent is the actus reus.

State of mind of the victim: In offences relating to religion, or
where rape is committed when consent has been obtained by
putting victim in fear of death or of hurt, the actus reus is with
reference to state of mind of victim.

Possession : Possession of stolen property constitutes to actus

reus (410-12).

Preparation : SS399, makes preparation to commit dacoity an

offence. There preparation itself is actus reus.

Negligence : The difficulty of causation arises very often in cases

of negligence. It has to be established that first, the conduct of the
person was negligent and secondly, that but for the negligent act of
the accused, the accident had occurred. In other words, actus reus
should be connected to the act, which should be proved negligent.

If the result is too remorse and accident in its occurrence, then there
is no criminal liability.

Mens Rea
The term mens rea has been given to the violation, which is the
motive force behind the criminal act. An act becomes criminal only
when it is done with guilty mind. Ordinarily, a crime is not committed
if the mind of the person doing the act is innocent. However, the
requisite guilty state of mind varies from mind to mind.

The principle of doctrine of mens rea is :

actus non facit reum nisi mens sit rea

The act does not make one guilty unless the mind is also guilty.

The intention of law is to stipulate that mens rea or guilty intention is

sine qua non of a criminal act is an essential element of a crime.
Mens rea is central to criminal liability, also includes that every
person has capacity to choose between right and wrong. Once a
person makes a choice, he has to take the responsibility for it.

The objective of the law is to punish a person with a guilty mind.

If a person intends to dishonestly take a movable property out of the

possession of a person without his consent, it amounts to theft. But
if a person takes a movable property from a person without his
consent, but by mistake, the act doesnot constitute offence of theft.

The modern criminal jurisprudence no longer accepts retribution as

the main objective of criminal law.

Intention : it can variously said to mean the object, purpose, the

ulti-mate aim or design behind doing the act.

Motive : the mental element of a crime ordinarily involves no

reference to motive. A bad motive cannot be a reason to convict a
person. A bad motive can convict a person and a good motive can
acquit a person.

Knowledge : is awareness on part of the person concerned,

indicating his mind. Knowledge is awareness of consequences of act.
Knowledge is essentially subjective.

Negligence : it is a case of inadvertence. Criminal negligence is

the gross and culpable neglect or failure to exercise that reasonable
and proper care and precaution to guard against any injury either to
public generally or to an individual in particular.
Definitions under Indian Penal Code :
Preamble : WHEREAS it is expedient to provide a general Penal Code
for India it is enacted as follows :--

1. Title and extent of operation of the Code : This Act shall be

called the Indian Penal Code and shall extend to the whole of
India except the State of Jammu and Kashmir.

21. Public Servant : The words “public servant” denote a person

falling under any of the descriptions hereinafter following;namely

[***]

Second -- Every Commissioned Officer in the Military,Naval or Air

Forces of India ;

Third – Every Judge including any person empowered by law to

discharge, whether by himself or as a member of any body of
persons, any adjudicatory functions;

Fouth – Every officer of a Court of Justice (including a liquidator,

reciever or commissioner ) whose duty it is, as such officer ,to
investigate or report on any matter of law or fact, or to make,
authenticate, or to keep any document, or to take charge or
dispose of any property, or to execute any judicial process, or to
administer any oath, or interpret, or to preserve order in the
Court, and every person specially authorized by a Court of Justice
to perform any of such duties ;

Fifth – Every juryman, assessor, or member of a panchayat

assisting a Court of Justice or public servant ;
Sixth – Every arbitrator or other person to whom any cause or
matter has been referred for decision or report by any Court of
Justice, or by any other competent public authority ;

Seventh – Every person who holds any office by virtue of which

he is empowered to place or keep any person in confinement ;

Eighth – Every officer of Government whose duty it is, as such

officer, to prevent offences, to give information of offences, to
bring offenders to justice, or to protect the public health, safety or
convenience;

Ninth – Every officer whose duty it is, as such officer, to take,

receive, keep or expend any property on behalf of the Govern-
ment, or to make any survey, assessment or contract on behalf of
the Government, or to execute any revenue process, or to invest-
tigate, or to report, on any matter affecting the pecuniary
interests of the Government, or to make, authenticate or keep
any document relating to the pecuniary interests of the Govern-
ment, or to prevent the infraction of any law for the protection of
the pecuniary interests of the Government;

Tenth – Every officer whose duty it is, as such officer, to take,

receive, keep or expend any property, to make any survey or asse-
ssment or to levy any rate or tax for any secular common purpose
of any village, town or district, or to make, authenticate or keep
any document for the ascertaining of the rights of any village,town
or district;

Eleventh – Every person who holds any office in virtue or which he

is empowered to prepare,publish,maintain or revise an electoral
roll or to conduct an election or part of an election;

Twelfth – Every person—

 (a) In the service or pay of the Government or remunerated by
fees or commission for the performance of any public duty by
the Government;
(b) In the sevice or pay of a local authority, a corporation
established by or under a Central, Provincial or State Act or a
Government company as defined in section 617 of the
Companies Act, 1956(1 of 1956).
Illustration
A Municipal Commissioner is a public servant.

22. Movable property – The words “movable property” are intended

to include corporeal property of every description, except land and
things attached to the earth or permanently fastened to anything
which is attached to earth.

This expression is important where any offence, involving theft is to

be considered, as theft can only be of movable property.

23. Wrongful gain – “Wrongful gain” is gain by unlawful means of

property to which the person gaining it is not legally entitled.

Wrongful loss – “Wrongful loss” is the loss by unlawful means of

property to which the person losing it is legally entitled.

Gaining wrongfully, losing wrongfully – A person is said to gain

wrongfully when such person retains wrongfully, as well as when
such person acquires wrongfully. A person is said to lose wrongfully
when such person is wrongfully kept out of any property, as well as
when such person is wrongfully deprived of property.

24. Dishonestly – Whoever does anything with the intention of

causing wrongful gain to one person or wrongful loss to another
person, is said to do that thing “dishonestly”.
25. Fraudulently – A person is said to do a thing fraudulently if he
does that thing with intent to defraud but not otherwise.

In 1897 this definition came under critisim by Madras High Court.

Maclean C.J., delivered unanimous judgement of five Judges of that
Court, observed:-- the word ‘defraud’ is of double meaning , in the
sense that it either may or may not imply deprivation, as it is not
defined in Code.

In Calcutta case, it was held that the word “fraud” involves two
conceptions, namely, deceit and injury to the person deceived that
is, an infringement of some legal right possessed by him, but not
necessarily deprivation of property.

In England also, the precise legal meaning to be attached to the word

“defraud” , particularly distinguished “intent to deceive” and “intent
to defraud”, has been a matter of controversy.

39. Voluntarily – A person is a said to cause an effect “voluntarily”

when he causes it by means whereby he intended to cause it, or by
means which, at the time of employing those means, he knew or had
reason to believe to be likely to cause it.

Illustration

A sets fire,by night to an inhabited house in a large town,for the

purpose of facilitating a robbery and thus causes the death of a
person. Here, A may not have intended to cause death; and may be
sorry that death has been caused by his act; ‘yet, if he knew that he
was likely to cause death, he has caused death voluntarily.

40. Offence – Except in the Chapters and sections mentioned in

clauses 2 and 3 of this section, the word “offence” denotes a thing
made punishable by this Code.
In Chapter IV, Chapter VA and in the following sections, namely,
sections 64,65,66,67,71,109,110,112,114,115,116,117,118,119,120,
187,194,195,203,211,213,214,221,222,223,224,225,327,328,329,330
,331,347,348,388,389 and 445, the words “offence” denotes a thing
punishable under this Code, or under any special or local law as
hereinafter defined.

And in sections 141,176,177,201,202,212,2016 and 441, the word

“offence” has the same meaning when the thing punishable under
the special or local law is punishable under such law with imprison-
ment for a term of six months or upwards, whether with or without
fine.

The first clause provides that except in the chapters and sections
mentioned in clauses 2 and 3 the word offence denote “ a thing
made punishable by the Code”. According to clause 2, in chapters IV
and VA and also in some 34 sections enumerated therein, the word
offence means “a thing punishable under the Code or any special law
or local law”.Clause 3 lays down that,in the eight sections mentioned
therein, the word “offence” has “the same meaning when the thing
under the special or local law is punishable under such law with
imprisonment for a term of six months or upwards whether with fine
or without fine.

52. Good Faith – Nothing is said to be done or believed in “good

faith” which is done or believed without due care and attention.

Punjab High Court observed : Good faith implies, not only an upright
mental attitude and clear conscience of a person, also the doing of
an act showing that ordinary prudence has been exercised according
to the standards of reasonable person.