MID TERM PROJECT

Interpretation of Statute

PROJECT ON

Mens Rea in IPC

Submitted to: Submitted by:

Prof. Debashri Sarkar Aparajita

2017BALLB80

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 TABLE OF CONTENTS

Contents
TABLE OF CONTENTS............................................................................................................................2
TABLE OF CASES.....................................................................................................................................3
OBJECTIVE................................................................................................................................................4
HYPOTHESIS.............................................................................................................................................4
RESEARCH QUESTION...........................................................................................................................4
INTRODUCTION.......................................................................................................................................5
COMMON LAW PRINCIPLE....................................................................................................................8
MENS REA UNDER INDIAN PENAL CODE........................................................................................11
CONCLUSION.........................................................................................................................................16
BIBLIOGRAPHY.....................................................................................................................................17
ACKNOWLEDGEMENTS.......................................................................................................................18

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 TABLE OF CASES

 Additional Commissioner, Income Tax v. Durga Pandari Nath Tulijayya & co.
 Commissioner of Sales Tax v. Rama and Sons.
 Deepa and Ors v. S.I. of Police.
 Director of Enforcement v. MCTM Corp Pvt Ltd.
 Gangula Mohan Reddy v. State of Andhra Pradesh
 Girja Nath v. State
 Gujarat Travancore Agency v. Commissioner Income Tax, Kerala.
 Indo China Steam Navigation Co Ltd v. Jasjit Singh.
 Lal Behari v. St of MP.
 Nathulal v. St of MP
 R v. Daviault.
 R v. Khandu.
 R v. Meli and Ors
 R v. Shorty.
 Ravule Hariprasad rao v. The State
 Regina v. St. Margarets
 St. of MH v. MH. George.
 Sherras v. De Rutzen.

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 OBJECTIVE

The aim of this project is to highlight the development of the mens rea principle throughout the
years and to understand how it has been incorporated in Indian jurisprudence.

HYPOTHESIS

Due the slow development of this principle, over centuries and across the globe, from England to
India, there are definitely bound to be some discrepancies. I shall highlight the differences in the
nitty-gritties (which may not be evident prima facie) through the course of my project.

RESEARCH QUESTION

The following questions will be answered in the course of this project:

1. How did the concept of intention in crime originate?

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 INTRODUCTION

The very cornerstone of criminal law is the latin maxim actus non facit reum nisi sit rea, which
means that the act itself doesn’t make a person guilty, unless it was his intention. A person
cannot be held guilty in the absence of a guilty mind and the crime is considered complete only
when both components (the physical act and the guilty mind) coexist. As supported in case law,
mens rea and active act by accused is essential to constitute an offence, Gangula Mohan Reddy
v. State of Andhra Pradesh1.

There are a few categories of wrongs, depending on the level of mens rea. They are as follows:

1) Intentional Wrongs - Where mens rea is equated with intention or purpose.

2) Wrong causes by negligence – In such cases culpa constitute mens rea.

3) Wrong of strict liability – Where mens rea is not necessary.

Intentional Wrongs:

“Mens rea”, says Beg J. in Girja Nath v. State2 “is a loose term of elastic signification and
covers a wide range of mental status and conditions, the existence of which would give a
criminal hue to actus reus. It refers to the foresight as well as the neglect of consequence, for
example a fully formed criminal intention found in a predetermined murder, and also mere
awareness of the act with disregard to the consequences. However, where a person is incapable
of being conscious of nature of the act, that person is exempt on account of incapacity. Such
incapacity may be permanent (such as insanity) or temporary (such as intoxication) in nature.
Both completely preclude a person’s ability to formulate the requisite intention for a crime.

Salmond defines intention “as the purpose or designed with an act is done. It is the
foreknowledge of the act, coupled with the desire of it, such foreknowledge and desire being the
cause of the act”. As stated by Paton, only when the consequences arising from an act are desired
and foreseen, is the act said to be intentional. The presence of knowledge and desire will

1 AIR 2010, SC 327

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determine the level of intention. Intention has 2 further components: immediate intent and
ulterior intent (also called motive).

Negligence:

A third strand, is negligence i.e. the state of culpable carelessness. “It is the absence of such care
as it was the duty of the defendant to use” says Willes, J. Salmond defines negligence as “the
mental attitude of undue indifference with respect to one’s conduct and its consequence”. The
failure to fulfil duty imposed by law, which leads to damage is called negligence.

The mens rea element of crime has therefore been interpreted to include a lot of definitions
within its ambit. Malice and willfulness are also two very important concepts, they refer to evil
intention and deliberate intention respectively.

Strict Liability:

And while offences have several classifications, for the purpose of this project we look toward
offences malum in se and offences malum prohibitum. Those offences that are inherently wrong
and recognized by society as inherent wrongs (such as theft, murder etc.) are known as offences
malum in se. These have been developed over years of jurisprudence and are also called
Common Law offences. On the other hand, offences malum prohibitum are those offences which
are prohibited by statutes (such as driving on the right side of the road, it is not inherently wrong
but it is proscribed by statute). These are also called statutory offences, they generally require
strict interpretation. This means that instead of questioning the presence of the requisite mens
rea, the real question becomes whether the presence of mens rea is even needed or not. Most
statutory offences do not define an element of mens rea, the offence is said to be complete on the
presence of certain specific deeds only (actus reus). An act or omission, as prescribed in the
statute, is sufficient to pin liability. The level of mens rea (intentional, negligent, by mistake,
etc.) is completely irrelevant. Such a crime is often and suitably termed a crime of strict liability
or of absolute liability.3

3 Taken from RUSSELL ON CRIME by J.W. Cecil Turner, 12th edition, Universal publication, pg no. 62.

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 COMMON LAW PRINCIPLE

We use the phrase “common law” here to depict the body of legal principles developed over
hundreds of years in the courts of England. These have been instrumental in shaping the ideal of
freedom (including its restrictions) in not only England but all common law countries in the
world. Thus, it is a body of knowledge based on social values which have been judicially
fortified through centuries worth of jurisprudence. The best characteristic of the common law
system is the level of balance maintained between individualistic ideals of liberty and communal
concerns. All these issues can find their solution through legislation and legal reforms. The
evolution of law with time has led to such a flexible system and has ultimately led to evolved
levels of public morality, which is an infallible basis for the formulation of legal principles.4

The system of criminal law is not condensed in one body, it is rather a multitude of rules based
on the highly evolved body of English common law.

Mens rea under Common Law

The rule promulgated under common law was that it was unethical to punish a person unless he
was aware of his wrong. There was sufficient emphasis placed on mens rea, and that crystallised
as a rule of law eventually. As St Augustine had said: Ream linguam non facit nisi mens rea.
This was also modified and adopted by Coke to become Et actus non facit reum nisi mens sit rea
which sufficiently shows the 2 varied prongs of the actual deed (actus) and the mental element at
the time of the deed (mens). This means that the conduct which resulted in the deed was inspired
and actuated by his mens rea, because in the usual case he intends to produce that result and
regulates his conduct in order to produce it.5

Both actus reus and mens rea should occur simultaneously, in order for there to be a crime. The
defendant must have the requisite mens rea for the crime at the time of committing the deed. Just
like the actus reus, the mens rea too will vary for different crimes. “Thus it can be said that mens
rea is one of the principles of the common law that a crime is not committed if the mind of the

4 Excerpt from Article on Common Law and Statute by Doctor Mark Cooray.
5 Taken from Kenny’s ‘Outlines of Criminal law’ by J W Cecil Turner, pg no.13, 19th ed., Universal Publication.

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person doing the act in question be innocent. It is said that actus non facit reum nisi mens sit rea
(the intent and act must both concur to constitute the crime). Although prima facie and as a
general rule there must be a mind at fault before there can be a crime, it is not an inflexible rule
and a statute may relate to such a subject matter and may be so framed as to make an act criminal
whether there has been any intention to break the law or otherwise to do wrong or not”.6

Importance of Mens rea

There needs to be an underlying blame-worthy mental condition which must be present when a
person carries out a deed, in order for it to be a crime. This may vary in type depending on crime,
however. For example in case of murder, it is the intent to cause death; in case of theft, it is the
intention to steal; in case of rape, it is the intention to have sexual intercourse with a woman
without her consent, etc.

There are a few landmark common law judgements which are noteworthy. The case of Meli and
others dealt with an appeal7 against conviction and sentence for murder in Baustoland and was
heard by the Privy Council8. In this case, there was a plot to murder a man and dispose the body
under the guise of an accident. They invited the man to a hut at night, beat him with an intent to
kill him, and thinking him to be dead threw the body of a cliff. It was later found that the man
had died to exposure to cold and not the actions of these persons. So, the appellants were found
guilty of culpable homicide and not murder. Since it wasn’t their assault which caused the death,
the actus reus was incomplete. And even though they threw him off a cliff, it wasn’t with the
intention to kill, but rather to dispose of the evidence, so due to the lack of malice here, the
resultant death by exposure was also not sufficient to make them guilty of murder.9

6 Excerpt taken from Ratanlal and Dhirajlal’s The Indian Penal Code by Justice Y.V. Chandrachud & V.R.
Manohar, 33rd Edition Reprint 2012, Lexis Nexis Butterworths Publication.
7 Meli and others v. R. [1954] 1 W.L.R. 228; 1 All E.R. 373.
8 Lord Goddard, C.J., Lord Reid and Mr L.M.D. de Silva.
9 Taken from Kenny’s ‘Outlines of Criminal law’ by J W Cecil Turner, pg no.14, 19th ed., Universal Publication.

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The Indian case of R. v. Khandu10, saw the court quash a conviction of murder, due to lack of
mens rea. The medical report showed that the death was not caused by the assault, but rather by
the burning of the hut to destroy evidence.

Again, in the African case of R. v. Shorty11 it was found that the accused beat a person to kill him
and placed the body in a gutter, however the cause of death was drowning.

10 R. v. Khandu (1890) I.L.R. 15 Bom., 194.

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 MENS REA UNDER INDIAN PENAL CODE

The Indian Penal Code 1860 contains not just the punishments prescribed, but also the definition
of offences, the general conditions of liability and exemptions from liability. The common law
doctrine hasn’t been used here directly, rather it has been incorporated indirectly by using varied
terms to indicate the requisite mens rea. It is imported on the basis of knowledge or intention.
Almost all the offences under the IPC are qualified by one or the other words such as “wrongful
gain or wrongful loss”, “dishonestly”, “fraudulently”, “reason to believe”, “criminal knowledge
or intention”, “voluntarily”, “maliciously”, etc. While the essence of the principle has been
encapsulated, it is not taken in its entirety. Therefore, to interpret the provisions, reliance is first
placed on the definitions provided and then on the common law.12

To some extent the maxim actus non facit reum nisi mens sit rea has also been negated, since it
is the drafters who have specifically defined the offences. The specific mental states (if required)
have also been defined, if there isn’t a defined mental element, it is assumed that the omission
was intended.

However, the case of Sherras v. De Rutzen13 states that mens rea is an essential of each and
every offence except in 3 situations: “(1) cases not criminal in any real sense but which in the
public interest are prohibited under a penalty, e.g. Revenue Acts; (2) public nuisance; (3) cases
criminal in form but which are really only a summary mode of enforcing a civil right.” These are
the limited circumstances which are crimes without guilty minds. Mens rea is an element of
crime and unless stated otherwise, it is required to penalize a person.

Intention while drafting

As stated earlier, there are certain offences which do not require mens rea. This is generally
taken to be the drafter’s intention to relieve the prosecution’s burden in certain offences, as
having an additional requirement would mean that many times the perpetrator would walk free.

12 Taken from PSA Pillai’s Criminal Law by K I Vibhute, 10th ed., Lexis Nexis Butterworths Wadhwa publication,
Pg 57.
13 [1895] 1 QB 918.

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This is generally witnessed in provisions dealing with social welfare like the provision related
with dowry death14.

Interpretation by Indian Courts

Almost all crimes in the modern world are defined in some statute and usually have certain
elements of crime, which usually includes some sort of intention. A typical statute, for example,
may require that a person act knowingly, purposely, or recklessly 15. The same has been
interpreted by Indian Courts.

The Supreme Court case of Director of Enforcement vs. M.C.T.M. Corporation Pvt. Ltd.16 held
that “Mens rea is a state of mind. Under the criminal law, mens rea is considered as the ‘guilty
intention’ and unless it is found that the accused had the guilty intention to commit the crime he
cannot be held guilty of committing the crime.”

The case of Nathulal vs. State of Madhya Pradesh17 saw the Supreme Court observe that “The
law on the subject is fairly well settled. It has come under judicial scrutiny of this Court on many
occassions. It does not call for a detailed discussion. It is enough to restate the principles. Mens
rea is an essential ingredient of a criminal offence. Doubtless a statute may exclude the element
of mens rea, but it is a sound rule of construction adopted in England and also accepted in India
to construe a statutory provision creating an offence in conformity with the common law rather
than against it unless the statute expressly or by necessary implication excluded mens rea. The
mere fact that the object of the statute is to promote welfare activities or to eradicate a grave
social evil is by itself not decisive of the question whether the element of guilty mind is excluded
from the ingredients of an offence. Mens rea by necessary implication may be excluded from a
statute only where it is absolutely clear that the implementation of the objection of the statute
would otherwise be defeated.”

14 Sec. 304 (B) of Indian Penal Code, 1860.

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The maxim actus non facit reum, nisi mens sit rea was mentioned in the case of R v Daviault.18
The court stated that it is the duty of the prosecution to show that the offence was committed by
the accused with the intention of committing the crime. As long back as 1895. Wright J.
observed in Sherras v.De Rutzen “There is a presumption that mens rea, an evil intention of
knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that
presumption is liable to be displaced either by the words of the statute creating the offence or by
the subject matter with which it deals, and both must be considered.”

The Apex court in Ravule Hariprasada Rao v. The State19 ruled that only where the statute
exempts the requirement of mens rea, a person can be found guilty of an offence without the
guilty mind. This was also supported in the later judgement of State Of Gujarat & Anr vs
Acharya D. Pandey & Ors20. A blameworthy mental condition of intention or knowledge is
therefore essential. “An honest and reasonable belief entertained by the accused of the existence
of the facts, which, if true, would make the act charged against him innocent, would be enough
to show the absence of mens rea.”

The Apex court Indo-China Steam Navigation Co. Ltd., v. Jasjit Singh 21 in gave a great deal of
importance to the social purposes of legislations, rather than the presumption regarding mental
element. Similarly, the Supreme Court in State of Maharashtra v. Mayer Hans George22 also
acknowledged that the rule of mens rea in Regina v. St. Margarets Trust Ltd.23, had a closer
proximity to the ultimate social objectives and purpose of laws.

Mens rea: Is it required in all cases?

In Gujarat Travancore Agency v. Commissioner of Income-tax, Kerala 24, the Supreme Court
stated that “In the case of a proceeding under Section 271(1) (a), however, it seems that the

18 [1994] 3 SCR 63
19 1951 AIR 204
20 1971 AIR 866
21 [1964] 34 Comp Cas 435 (SC)
22 [1965] 35 Comp Cas 557
23 [1958] 1 WLR 522 (C Cr App)
24 Gujarat Travancore Agency v. Commissioner of Income-tax, Kerala

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intention of the Legislature is to emphasise the fact of loss of revenue and to provide a remedy
for such loss, although no doubt an element of coercion is present in the penalty. In this
connection, the terms in which the penalty falls to be measured are significant. Unless there is
something in the language of the statute indicating the need to establish the element of mens rea,
it is generally sufficient to prove that a default in complying with the statute has occurred. In
para 13, In Commissioner Central Excise vs Kc Alloys And Steel Castings which was decided
on 3 August, 2006, it was held that '' It may also be noticed that though, normally, element of
mens rea is mandatory requirement before penalty can be imposed but it is not always so
required.”

In Deepa and Ors. v. S.I. Of Police 25 the court stated that “Normally a charge must fail for want
of mens rea but there may be offences where mens rea may not be required. But actus reus must
always exist. Without it there cannot be any offence. Mens rea can exist without actus reus, but if
there is no actus reus there can be no crime. Even if mens rea is there, no conviction could be
had without actus reus without which there cannot be a crime. For example a man may intend to
marry during the lifetime of his wife and enter into a marriage believing that he is committing
the offence of bigamy. Mens rea is there. But if unknown to him his wife died before he married
again, in spite of the mens rea there cannot be an offence of bigamy.”

In Commissioner of Sales Tax v. Rama and Sons, General Merchant, Ballia 26, the Allahabad
High Court observed “The principle of mens rea comes from English Criminal Law from times
when the law was not codified. It was said that actus non facit reum nisi mens sit rea (the intent
and act must both concur to constitute the crime). But this principle has lost much of its
significance owing to greater precision of modern statutes. The nature of intent or the
ingredients of offences are now clearly stated in the statutes and nothing further is required to
establish as offence then what the statute specified. We have words like 'voluntarily',
'intentionally', 'negligetly', 'knowingly', fraudulently', 'dishonestly', 'rashly', 'omits', 'without
lawful authority' ect., 'omits', 'without lawful authority' ect., used in various sections of the
Indian Penal Code defining various offence. Proof of the State of mind or of the conduct of the
person as indicated by the aforesaid word establishes the offence and no further guilty intent or

25 1986 CriLJ 1120

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mens rea need be proved. In fact there are many acts which are offences and do not require
proof any mens rea or guilty intention, for example possession of illicit fire arm.”

In the case of Lal Behari v. State 27 the Allahabad High Court stated that mens rea was not needed
to constitute the offence of contempt of court. The act was sufficient without needing to prove
criminal motive.

27 AIR 1953 All 510

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 CONCLUSION

While mens rea is an essential element to constitute offence, it can however see different
treatment in state made law. Though there is no rule to exclude mens rea from statutory offences,
legislature made law may do so. On the other hand, there is a general principle in common law
that a statute has to be construed harmoniously with the judge-made law and not negate common
law.

“It is a sound rule to construe a statute in conformity with the common law rather than against
it, except where and so far the statute is plainly intended to alter the course of the common law”.

This dichotomous nature has been acknowledged in Indian jurisprudence as well. In the case of
Additional, Commissioner, Income Tax v. Durga Pandari Nath Tulijayya & Co. 28, the Andhra
Pradesh High Court held that “The doctrine of mens rea is of common law origin developed by
Judge-made law. It has no place in the Legislator's law. It has no place in the Legislator's law
where offences are defined with sufficient accuracy. Mens rea is an essential ingredient of an
offence. However, it is a rule of construction. If there is a conflict between the common law and
the statutory law, it has always been held that it is a sound rule to construe a statute in
conformity with the common law. But it cannot be postulated that statute cannot alter the course
of the common law. The parliament, in exercise of its constitutional powers makes statutes and
in exercise of those powers it can affirm, alter or take away the common law altogether.
Therefore, if it is plain from the statute that it intends to alter the course of the common law,
then the plaint meaning should be accepted. The existence of mens rea as an essential ingredient
of an offence has to be made out by the construction of the statute.”

Thus, in India the above-mentioned English rule does not sustain, statute cannot alter common
law, both have their respective place. However, in the event of a conflict between the 2, the
offence has to construed in consonance with the statute.

28 1977 TaxLR, 258

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 BIBLIOGRAPHY

Books Referred

 General Principles of Criminal Law, K.N. Chandrasekhran Pillai, 2 nd Edition. Lexis Nexis
Butterworths Publication.
 Criminal Law, Cases and Materials, K.D. Gaur, 6th Edition. Universal Publication.
 Kenny’s outlines of Criminal Law, J.W. Cecil Turner, 19th Edition. Universal Publication.
 O.P Srivastava’s Principles of Criminal law, R. Prakash, 5th Edition. Eastern Book
Company.
 Ratanlal & Dhirajlal, the Indian Penal Code, Justice KT Thomas, 34 th Edition. Lexis
Nexis Publication.

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 ACKNOWLEDGEMENTS

I would like to express my heartfelt gratitude to my teacher,

Prof. Debashri Sarkar

who gave me the golden opportunity to do this enriching project on the topic ‘Mens rea in
IPC’ which has helped me enhance my knowledge exponentially about the concept;
understand the scope in totem; analyse its development throughout history as well its
contribution to it; learn the applicable laws and correlate the present state of affairs in
our country.

Her helpful insights in this subject have guided me to make this project.

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