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MENS REA - AN INTEGRAL PART OF CRIME
Aditya Doddala & Shreya Deb
Alliance School of Law, Bengaluru
The most primitive reference to crime can be traced back to the 14th century. It was used
to convey the mind of something disreputable or wicked. In early criminal law, crime was
not distinguished from civil wrongs. The two has been called a viscous intermixture.1 The
definition of crime is one of the thorny intellectual problems of law.2 The clarity of “What
is a crime?” has always been a matter of great difficulty. It has been long hunted for a
general definition of a crime which recognizes the facet of an act or omission which
formulates it as a crime. However, embracing, numerous offences and widely varied
conduct that all attempts to elucidate the fundamental characteristics of a crime, whether
based on moral norms or otherwise, have proved fruitless. The truth appears to be that no
satisfactory definition of crime has yet been achieved, and that it indeed seems impossible
to articulate a legal definition of crime.3 However, several prominent jurists have made
efforts to outline crime.
According to Sir William Blackstone, Crime is ‘an act committed or omitted in violation
of Public Law forbidding or commanding it’.4 According to John Gillin, Crime is an act
that has been shown to be actually harmful to society, or that is 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.5
A crime is an act or behaviour which is prohibited by law; it is based upon the social
structure of a society. The same act may be deemed as a crime or offence in one society and
in another as an act of honor. The legal standing of an act, whether it is a crime; lies not in
the substance of the act itself but in the social response to the conduct. Crime as a result
becomes a socially expressive condemnable act. Consequently, the meaning and elements
of crime are left to criminal and penal policy of a state. Hence crime is bound to differ from
time to time and country to country.
The fundamental principle of crime has said to be based on the Latin maxim ‘Actus non
facit reum nisi mens sit rea’ which denotes ‘The Act and the Intent must both concur to
1
Sir Fredrick Pollock and F.W. Maitland, The History of English Law before the time of
Edward I, Vol.2 (2nd Edn. 1911) 465; Allen, Legal Duties (1931) 4 Yale LJ 222 and Winfield,
Province of the Law of Tort (1931) 190
2
Glanville Williams, The Definition of Criminal Law (1955) Current Legal Problems, 107, 130
3
J.W. Cecil Turner (ed.), Kenny’s Outlines of Criminal Law (18th Edn., Cambridge 1962)
4
Sir William Blackstone, Commentaries on the Laws of England, vol. 4, 17th ed, 1830, p. 5.
5
John Gillin, Criminology and Penology, 3rd edn, New York, p. 9
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constitute the crime’. In plain words, it means an act itself done by a person will not be
considered as a crime unless his intentions were so. For example, murder constitutes an
intentional or recklessness or negligent intervention with another. The necessity of a
wrongful intention is found not only in most common law crimes but as also in almost all
statutory crimes. Therefore, criminal damage, a statutory crime, involves intention or
recklessness. Bishop writes:6 ‘There can be no crime large or small, without an evil mind.
It is therefore a principle of our legal system, as probably it is of every other than, that the
essence of an offense is the wrongful intent, without which it cannot exist.’
Intention is one of the most essential elements of every crime. Mens rea i.e. there must be
a guilty mind to constitute a criminal act. In other words, intention is a state of mind to do
a wrongful act knowing the evil consequences of the same. No act is per se criminal. It only
becomes a crime when the wrong doer does it with a guilty mind. For example, if I push a
person from a cliff and he dies, it is apparent that I knew the consequences and the person’s
death was obvious. There is no legal justification for such act.
The ingredient of Mens rea is indicated by the use of words such as intention, malice,
fraudulent, recklessness etc. The legal meaning of these words should be defined precise
and reasonable, not to go far beyond the general meaning used by public so that the law is
better understood. After more than a thousand years of legal development, the Common
law still lack clear and consistent definitions of words expressing Mens rea. The jurists and
legislators have discordant views regarding the precise meaning of the phrase ‘Mens Rea’.
Some define it in a general and extensive way while others give a narrow and precise, but
with conflicting meanings. The courts believe that there should be a continual need to
expand the criminal liability based on social and moral grounds, although there is
considerable confusion. To understand, the law what it is today, it becomes essential to
scrutinize the mental requisites of criminality and to understand the historical development
of mens rea.
The law always did not involve mens rea for imposing liability. Earlier, (before tort law and
criminal law was divided) liability was imposed upon the causing of an injury, without
regard to culpability. The concept of mens rea has been cited in the Leges Henrici Primi
or Laws of Henry I, written during 12th century (1115 A.D.), description of perjury, “reum
non facit nisi mens rea” which was borrowed from a sermon by St. Augustine concerning
that crime. It gradually developed into Coke's Third Institute as “actus non facit reum nisi
mens sit rea.”7 The new theory of criminal liability emerged as Mens rea became part and
parcel of criminal jurisprudence. It advanced into a shift of emphasis and amendment in
the avenue of approach, which resulted in the acknowledgment of new legal doctrines and
attitudes. Gradually there was a line arranged of differentiation between crime and tort.
6
7
Criminal Law, 9th Edition (1930) 287.
Coke, Third Institute-6, 107. 20 Mens Rea, 45 Harvard Law Review 989.
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The concept of mens rea initially developed in Regina vs. Prince8. Henry Prince, the
defendant was accused of abducting a 14 year old girl, Annie Phillips. He took a juvenile
girl out of her father’s custody, having reasonably believed her to be 18 years old. At that
point of time, such an act was in violation of Article 55. The defendant argued that he
made a reasonable mistake in considering her age of consent. Lord Bramwell, on the other
hand was satisfied that the defendant’s conduct was immoral; the defendant had mens rea
necessary for criminal liability and he was ultimately convicted.
The Courts in earlier days in order to fix the accused’s criminal liability were to establish
whether the accused behaved in a manner which fell below the ethical norms approved in
the society or not.9 If the conduct of a person turns out to be below the ethical standard,
he shall be responsible for his act. Later, two tests were evolved to establish mens rea. The
first was whether the act in question was a voluntary and deliberate act of the accused and
second, whether the accused had the knowledge of the consequences of his act.10
The doctrine of Mens Rea has been adopted by the Indian Penal Code, 1860 in true
essence. If the provisions of Indian Penal Code are analyzed, they generally involve the
following principle elements:
i.
ii.
a individual or a group of individuals who is indicated by the term ‘whoever’ in the
provisions of Indian Penal Code.
malice or guilty mind of the wrong doer is determined by the use of certain term such
as ‘intentionally’, ‘voluntarily’, ‘fraudulently’, ‘dishonestly’, ‘malignantly, maliciously
etc. These words denote different intentions which are generally used as adverbs
qualifying verbs which are supposed to indicate acts.11 For example intentionally
joining an unlawful assembly12, intentionally preventing service of summons13,
intentionally non attendance in regard to summons14, intentionally omitting to produce
a document15, intentionally obstructing sale of property16, intentionally omitting to
assist a Public Servant17, intentionally giving false evidence18, intentionally omitting to
8
L.R. 2 C.C.R. 154 (1875); (13 Cox's Criminal Cases 138 (1875))
See Russell on Crime, vol 1, twelfth edn, pp 17-22.
10
Jerome Hali, General Priciples of Criminal Law, second edn, 1960, pp 70-77; Deylin, ‘Statutory
Offence’, (1983) 4 JSPTL 213. Mens Rea consists of two elements-first, the intent to do an act
and secondly, the knowledge of the circumstance that makes that act a criminal offence.
11
The principles of the Law of Crimes, Syed Shamsul Huda, Eastern Book Company, Lucknow,
1st Edn. Re. 201, p 189
12
Indian Penal Code, 1860, Sec.142
13
Indian Penal Code, 1860, Sec.173
14
Indian Penal Code, 1860, Sec.174
15
Indian Penal Code, 1860 , Sec.175
16
Indian Penal Code, 1860, Sec.184
17
Indian Penal Code, 1860, Sec.187
18
Indian Penal Code, 1860, Sec.193
9
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iii.
iv.
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give information of an offence19, intentionally omitting to apprehend an offender20,
intentionally offering resistance to lawful apprehension21, intentionally offering
insult22, intentionally causing to be returned as a juryman23. Here the adverb
‘intentionally’ is sufficient to ascertain Mens Rea. It builds a notion that verbs are used
to refer mere acts. Most verbs indicate the consequences of acts. For example
‘intentionally’, ‘fraudulently’, ‘dishonestly’, ‘voluntarily’ and such other words of the
same plunk are used to construct Mens Rea. Transitive verbs are verbs which articulate
action from the agent to an object. However, transitive verbs cannot be restrained to
indicate mere acts. For instance, intentionally killing a person is an act, the effect of
which is to cause death. Thus death is the outcome of the act. However, the term
‘intentionally’ is used before killing in order to establish guilty mind.
actus reus or act committed is an essential part of offence under Indian Penal Code.
Without completion of the act, the offence is not complete and it would be termed as
an attempt. According to the maxim, “Actus non facit reum nisi mens sit rea”, the act
and the intent must both concur to constitute the crime. However, in certain cases, the
amount of presumption that whoever willed the act must have intended the
consequences. For instance, possession of counterfeit of coins or offences against the
state is punishable.
Result of conduct: It is not always necessary that the consequence of the act be same
as the intended want. To establish an offence, the consequence is necessary to take
place. For example, section.217 punishes intentional disobedience of any direction of
law on the part of a public servant to save a person from punishment. Later the public
servant cannot plead in defense that the person is punished despite his aid. Section
216A and section 263 are other similar instances. To establish a crime there must be
result of the human conduct or any act which is prohibited by law.
There are various words used in the Indian Penal Code which supply the place of Mens
Rea. Therefore, the study of Mens rea may be divided into 4 categories:
a. Voluntarily: Voluntary act implies that an act is done by a person willingly, and
exclusive of manipulation or compulsion. A voluntary act is neither an act due to
negligence nor accident. For instance: voluntarily obstructing any public servant in the
discharge of his public function.24 Section 39 of Indian Penal Code defines
19
Indian Penal Code, 1860, Sec.202
Indian Penal Code, 1860, Sec.221& Sec.222
21
Indian Penal Code, 1860, Sec.224 , 225, 225A & 225B
22
Indian Penal Code, 1860, Sec.228
23
Indian Penal Code, 1860, Sec.229
24
Indian Penal Code, 1860, Sec. 186
20
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‘voluntarily’25 in relation to the effect of the immediate consequence of the conduct.
The section implicitly lays down the principle that a man is presumed to intend the
probable consequences of his act.26
Indian Penal Code grants a broad meaning to voluntary in comparison to intention. The
Supreme Court has given a new meaning of the word “voluntary” by holding in Olga Tellis
vs. Bombay MC27 that the act of slum dwellers putting up their huts on public footpaths
and pavements cannot be described to be “voluntary” for the purposes of the definition of
‘Criminal trespass’ under Section 441 of Indian Penal Code, because the act is a result of
utter helplessness and their moral right of survival.
b. Intention: An act is said to be intended if the person desires it follow his conduct. The
general opinion is that the term ‘intention cannot be precisely and satisfactorily defined
and also it need not to be defined, as it can only be inferred through the conduct of the
person.’ But philosophically it can be defined as ‘purpose or desire that certain result
shall follow his conduct’.
For example, if a person pushes a boy in front of a running train, it is obvious that he
desired that boy’s death. Similarly if a man offers poison to a child, ultimately this results
in child’s death. Intention to kill or knowledge that death will be caused is a question of
fact and will always be a subject matter of trial. It is not necessary that bodily injury
competent of causing death should have been inflicted.28 Intention must be distinguished
from motive. Motive is the reason or ground of an action whereas intention is the violation
or active desire to do an illegal act. In other words, intention is an operation of will directing
an illegal act, while motive is the feeling that proms the operation of will.
c. Reason to believe: An individual is believed to know something where there is a direct
appeal to his senses; or to have mental cognition without immediately personal
knowledge. Locke quoted, “Knowledge is the highest degree of the speculative faculties
and consists in the perception of the truth of affirmative or negative propositions.”29
Section 26 of Indian Penal Code defines ‘reason to believe’30. The definition emphasizes
on ‘believe’ and gives it a superior place in comparison to suspect. Therefore, suspicion or
25
Section 39 of Indian Penal Code, 1860: ‘a person is said to cause an effect in “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.’
26
Meeru Bhatia Prasand (Dr.) vs. State, 2002 Cr LJ 1674 (Del).
27
(1985) 3 SCC 545: 1986 Cr LR (SC) 23: AIR 1986 SC 180
28
2004 (1) SCC 220
29
John Locke, Essay Concerning Human Understanding, 1689
30
Section 26 of Indian Penal Code, 1860: A person is said to have ‘reason to believe’ a thing, if he
has sufficient cause to believe that thing but not otherwise.
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doubt cannot be raised to the level of ‘reason to believe’31. However, the phrase ‘reason to
believe’ is somewhat weaker than knowledge. It means the adequacy of cause and not
legitimacy of belief. For instance, ‘A’ comes to me at night under suspicious circumstances.
His clothes are stained with blood, and he is in possession of a knife which is drenched
with blood. I may not be aware whether he committed a crime or not, but I have good
reason to believe it.
There are however instances where much emphasis has been provided to the element of
knowledge and mere ‘reason to believe’ is considered insufficient. For example: Offence
under Section 181.
d. Negligently: The words ‘negligently’ and ‘rashly’ have not been defined in the Indian
Penal Code. However, they are used in defining certain crimes, not to establish
malafide intentions but to prescribe the reasonable amount of care and caution which
is expected by the law to be exercised by the offender without which the act is
considered as culpable. These words were defined by Mr. Justice Holway in the case of
Nidamorti Nagabhushanam32 in concurrence with judgement in Empress vs
k.Mandal33 as “Culpable rashness is acting with the consciousness that mischievous
and illegal consequence may follow, but with the hope that they will not, and often
with the belief that the actor has taken sufficient precautions to prevent their
happening. And Culpable negligence is acting without the consciousness that illegal
or mischievous effects will follow, but in circumstances which show that the actor has
not exercised the caution incumbent on him, and that if he had, he would have had the
consciousness.”34 A willful omission to perform certain legal duty always constitutes a
culpable negligence.
The culpable negligence under English law is similar to Indian law. According to the
Stephen’s Digest of Criminal law, Article.232- “Everyone upon whom the law imposes any
duty, or who has by contract or by any wrongful act taken upon himself any duty, tending
to the preservation of life, and who neglects to perform that duty, and thereby causes death
of any person, commits the same offence as if he had caused the same effect by an act done
in the state of mind, as to intent or otherwise, which accompanied the neglect of duty.”
Here the degree of care and caution exercised is to be determined by the courts.
Negligence must not be confused with term neglect. Negligence denotes specific
perception of mind while neglect states a matter of fact which may be the outcome of
intentional or negligent act. For instance, a man is aware of faulty brake of his car however,
31
Prabha Malhotra vs. State, 2000 Cr LJ 549 (All), the Court was examining the conduct of
doctors in reference to a patient and found no departure from the normal medical practices.
32
In Re: Nidamorti Nagabhushanam 7 Mad. HCR 119
33
ILR, 4 Cal. 764
34
Ibid, 31
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he neglects to get it fixed. If the man knocks out a boy due to his faulty brakes, he is liable
for willful neglect.
The doctrine of Mens Rea has no application under Indian Penal Code, 1860 unlike its
counterpart, in common law.35 The phrase, ‘mens rea’ have not been used anywhere in the
Code of 1860. However, the doctrine have been included in two different way; one of
which is by the usage of terms such as ‘intentionally’, ‘knowingly’, ‘voluntarily’,
‘fraudulently’, ‘dishonestly’ etc. depending upon the gravity of the act; While, the other is
by incorporating the provisions relating to the Chapter IV of Indian Penal Code. Where
the legislature has omitted to lay down a particular state of mind as an essential ingredient
of an offence under the Indian Penal Code, 1860 the presumption is that such an omission
is deliberate and in such a case, the doctrine of mens rea will not be applicable.36 For
instance, waging war against the Govt. of India, sedition, kidnapping, abduction,
counterfeiting coins and in such other cases, mens rea is not essential to impose criminal
liability.37
The doctrine of Mens Rea, as we all know, is undeniably an integral part of a crime but
there are different ways in which mens rea can be categorized in order to balance the
punishment of the victim. The application of this doctrine should be exercised with due
care and caution like examining how far intention is relevant in that particular case.
35
Black’s Law Dictionary, West Publishing House, 1968, p. 345-346
MC Setalvad, The Common law in India, p. 139; Mayne, Criminal Law in India, 4th Edn. p. 9
37
Ranjit D Udeshi Vs. State of Maharashtra AIR 1965 SC 881
36
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