Unit I
Introduction – Crime, Difference between Tort, Crime and
Contract, Doctrine of Mens-rea, General Explanation
(Section 1to 52 A)
Synopsis
MEANING, DEFINITION, ELEMENTS AND STAGES OF CRIME
a. Introduction
b. Meaning and Definition

According to Austin:

According to Stephen

According to Donald

According to Keeton

According to Paton,
a. Object of Criminal Law
b. Fundamental elements of Crime

Human Beings

Mens Rea or Guilty mind.

Actus Reus or Illegal Act

Injury to another Human being
c. Stages of Crime

Intention

Preparation

Attempt

Accomplishment or Completion
d. Modern approach
Introduction
Criminal law is a body of rules and statutes that defines conduct prohibited by the state because
it threatens and harms public safety and welfare and that establishes punishment to be imposed
for the commission of such acts. Criminal law differs from civil law, whose emphasis is more on
dispute resolution than in punishment.
The term criminal law generally refers to substantive criminal laws. Substantive criminal laws
define crimes and prescribe punishments. In contrast, Criminal Procedure describes the process
through which the criminal laws are enforced. For example, the law prohibiting murder is a
substantive criminal law. The manner in which state enforces this substantive law—through the
gathering of evidence and prosecution—is generally considered a procedural matter.
What is A Crime?
A crime is something more than an act of mere disobedience to law. It is an act which is both
forbidden by law and revolting to the moral sentiments of society. Here again, one has to be
cautious, because moral sentiments of society are flexible from time to time and place to place.
In fact criminal offences are the creation of policy of the powerful and astute society or
community who safeguard their interests and security.
Peculiarities of a Crime
From what has been said above, it is better to submit that the question as to what is a crime is one
of discussion rather a readymade answer. What is a crime can better be discussed rather than
defined. One must however remember certain peculiarities of crime as moted by Professor Keny.
A crime is:

A public wrong:

A violation of a public right;

More injurious to community than a civil wrong;

It violently affects our moral feelings;

State interposes and punishes the criminal;

State recovers fine from the criminal;

State is the controlling authority to remit the sanctions and the punishments.
Object of Criminal Law
State is the guardian of law and order. It prevents and punishes all injuries to itself and all
disobedience to the rules which it has laid down for the common welfare. The branch of law
which contains the rules upon this subject is accordingly described as criminal law.
It is the essential function of a State to regulate criminal interests, arbitrating conflicting claims
and to manage security of persons and their property. This could be achieved through
instrumentality of the criminal law. Lawlessness ruins a State, therefore protection of security
and stamping out criminal tendencies must be the object of law. Therefore, law as a cornerstone
of the edifice of order should meet these challenges that confront the society.
Definition of Crime
Crime has been defined by various veteran writers but no definition tells us everything about a
crime. Every definition lacks some element and invites criticism; Glanville Williams gives us
three attributes of a crime which are:
a. A harm,
b. Preventive measures and
c. Punishment & legal proceedings by special rules of evidence.
Many prominent jurists have made attempts to define Crime.
According to Austin: A wrong which is pursued at the discretion of the injured party and his
representatives is a civil injury; a wrong which is pursued by the sovereign or his subordinates is
a crime.
Stephen says a crime is a violation of a right considered in reference to the evil tendency of such
violation as regards the community at large. Stephen also indicates the similar nature of crime
violation of right against the community at large.
Donald also admitted the same thing “Crime is a social injury and an expression of subjective
opinion varying in time and place.”
According to Keeton,“ a crime would seem to be any undesirable act which the State find is
most convenient to correct by the institution of proceedings for the infliction of a penalty, instead
of leaving the remedy to the discretion of some injured person.”
Paton, “the normal marks of a crime are the State has power to control the procedure, to remit
the penalty or to inflict the punishment”
As a result it is very difficult to determine a universal definition of crime; Russell also admitted
that – to define crime is a task which so far has not been satisfactorily accomplished by any
writer. However the attributes of crime can be determined i.e.
•
Anti Social Act
•
Prohibited by Society or Sovereign
•
Violation attract punishment
•
Voilation Point of Rules , Law establish by Sovereign Punishment
An action or omission that is deemed injurious to the public welfare or to the interests of the state
and that is legally prohibited.
Sir William Blackstone in his 'Commentaries on Law of England', Sir William Blackstone
defined Crime as "an act committed or omitted in violation of Public Law forbidding or
commanding it".
Fundamental Elements of Crime
There are four elements which go to constitute a crime, these are:I.
II.
Human being
Mens rea or guilty intention
III.
Actus reus or illegal act or omission
IV.
Injury to another human being
Human Being
The first element requires that the wrongful act must be committed by a human being. In
ancient times, when criminal law was largely dominated by the idea of retribution,
punishments were inflicted on animals also for the injury caused by them, for example, a
pig was burnt in Paris for having devoured a child, a horse was killed for having kicked a
man. But now, if an animal causes an injury we hold not the animal liable but its owner
liable for such injury. So the first element of crime is a human being who- must be under
the legal obligation to act in a particular manner and should be a fit subject for awarding
appropriate punishment.
Section 11 of the Indian Penal Code provides that word ‘person’ includes a company or
association or body of persons whether incorporated or not. The word ‘person’ includes
artificial or juridical persons.
I.
Mens Rea
The second important essential element of a crime is mens rea or evil intent or guilty
mind. There can be no crime of any nature without mens rea or an evil mind. Every crime
requires a mental element and that is considered as the fundamental principle of criminal
liability. The basic requirement of the principle mens rea is that the accused must have
been aware of those elements in his act which make the crime with which he is charged.
There is a well known maxim in this regard, i.e. “actus non facit reum nisi mens sit rea”
which means that, the guilty intention and guilty act together constitute a crime. It comes
from the maxim that no person can be punished in a proceeding of criminal nature unless
it can be showed that he had a guilty mind.
II.
Actus Reus [Guilty Act or Omission]
The third essential element of a crime is actus reus. In other words, some overt act or
illegal omission must take place in pursuance of the guilty intention. Actus reus is the
manifestation of mens rea in the external world. Prof. Kenny was the first writer to use
the term ‘actus reus’. He has defined the term thus- “such result of human conduct as the
law seeks to prevent”.
III.
Injury
The fourth requirement of a crime is injury to another person or to the society at large.
The injury should be illegally caused to any person in body, mind, reputation or property
as according to Section 44 of IPC, 1860 the injury denotes any harm whatever illegally
caused to any person in body, mind, reputation or property.
Stages of Crime
Stages Of A Crime If a person commits a crime voluntarily or after preparation the doing of it
involves four different stages. In every crime, there is first intention to commit it, secondly,
preparation to commit it, thirdly, attempt to commit it and fourthly the accomplishment. The
stages can be explained as under1. Intention
2. Preparation
3. Attempt
4. Accomplishment or Completion
1. Intention
Intention is the first stage in the commission of an offence and known as mental stage. Intention
is the direction of conduct towards the object chosen upon considering the motives which
suggest the choice. But the law does not take notice of an intention, mere intention to commit an
offence not followed by any act, cannot constitute an offence. The obvious reason for not
prosecuting the accused at this stage is that it is very difficult for the prosecution to prove the
guilty mind of a person.
2. Preparation
Preparation is the second stage in the commission of a crime. It means to arrange the necessary
measures for the commission of the intended criminal act. Intention alone or the intention
followed by a preparation is not enough to constitute the crime. Preparation has not been made
punishable because in most of the cases the prosecution has failed to prove that the preparations
in the question were made for the commission of the particular crime.
If A purchases a pistol and keeps the same in his pocket duly loaded in order to kill his bitter
enemy B, but does nothing more. A has not committed any offence as still he is at the stage of
preparation and it will be impossible for the prosecution to prove that A was carrying the loaded
pistol only for the purpose of killing B.
Preparation When Punishable
Generally, preparation to commit any offence is not punishable but in some exceptional cases
preparation is punishable, following are some examples of such exceptional circumstances-
a) Preparation to wage war against the Government - Section 122, IPC 1860;
b) Preparation to commit depredation on territories of a power at peace with Government of
India- Section 126, IPC 1860;
c) Preparation to commit dacoity- Section 399, IPC 1860;
d) Preparation for counterfeiting of coins or Government stamps- Sections 233-235, S. 255
and S. 257;
e) Possessing counterfeit coins, false weight or measurement and forged documents. Mere
possession of these is a crime and no possessor can plead that he is still at the stage of
preparation- Sections 242, 243, 259, 266 and 474.
3. Attempt
Attempt is the direct movement towards the commission of a crime after the preparation is made.
According to English law, a person may be guilty of an attempt to commit an offence if he does
an act which is more than merely preparatory to the commission of the offence; and a person will
be guilty of attempting to commit an offence even though the facts are such that the commission
of the offence is impossible. There are three essentials of an attempt:1. Guilty intention to commit an offence;
2. Some act done towards the commission of the offence;
3. The act must fall short of the completed offence.
Attempt Under The Indian Penal Code, 1860 The Indian Penal Code has dealt with attempt in
the following four different waysCompleted offences and attempts have been dealt with in the same section and same punishment
is prescribed for both. Such provisions are contained in Sections 121, 124, 124-A, 125, 130, 131,
152, 153-A, 161, 162, 163, 165, 196, 198, 200, 213, 240, 241, 251, 385, 387, 389, 391, 394, 395,
397, 459 and 460.
Secondly, attempts to commit offences and commission of specific offences have been dealt with
separately and separate punishments have been provided for attempt to commit such offences
from those of the offences committed. Examples are- murder is punished under section 302 and
attempt to murder to murder under section 307; culpable homicide is punished under section 304
and attempt to commit culpable homicide under section 308; Robbery is punished under section
392 and attempt to commit robbery under section 393.
Thirdly, attempt to commit suicide is punished under section 309;
Fourthly, all other cases [where no specific provisions regarding attempt are made] are covered
under section 511 which provides that the accused shall be punished with one-half of the longest
term of imprisonment provided for the offence or with prescribed fine or with both.
4. Accomplishment or Completion
The last stage in the commission of an offence is its accomplishment or completion. If the
accused succeeds in his attempt to commit the crime, he will be guilty of the complete offence
and if his attempt is unsuccessful he will be guilty of an attempt only. For example, A fires at B
with the intention to kill him, if B dies, A will be guilty for committing the offence of murder
and if B is only injured, it will be a case of attempt to murder.
The Modern Approach
The modern approach to crime is a functional approach, that is, to use the concept of crime and
the criminal law as an instrument for the well being of society. As quoted by Nigam in his Law
of Crimes in India, The function of criminal law is to preserve the public order and decency, to
protect citizens from what is offensive or injurious and to provide sufficient safeguards against
exploitation and corruption of others, particularly those who are young, weak in body and mind,
inexperienced, or in a state of physical, official or economic dependence. If we keep the above
functions of criminal law in mind, it would be unnecessary to search for a good definition. This
constitutes a modern approach.
Doctrine of Mens Rea
Introduction
One of the main characteristic of our legal system is that the individual’s liability to punishment
for crimes depends, among other things, on certain mental conditions. The liability of conviction
of an individual depends not only on his having done some outward acts which the law forbids,
but on his having done them in a certain frame of mind or with a certain will.
Mens rea means a mental state, in which a person deliberately violates a law.Thus mens rea
means intention to do the prohibited act
These are known as mental elements in criminal liability. Therefore an act in order tobe a crime
must be committed with a guilty mind
Actus non facit reum nisi mens sit rea, is well known principal of natural justice meaning
no person could be punished in a proceeding of criminal nature unless it can be shown that
he had guilty mind.
In justice concept, actus reus represents physical aspect of crime and mens rea the mental aspect,
which m must be criminal and cooperate with the former. Actus Reus 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 be a criminal hue to actus
reus. No act is per se criminal: it becomes criminal only when the actor does it with guilty mind.
Meaning and Definition
Mens rea is a Latin term meaning guilty mind. It deals with the state of mind of the defendant at
the time he committed the crime. Mens rea means 'guilty mind', and refers to the mental element
of an offence. To be guilty of a crime, an accused needs to have satisfied this mental element
requirement, or the mens rea standard. Different offences will require the accused to have
satisfied different levels of mens rea standards before they are deemed guilty of that offence.
There are two main types of mens rea. These are:
I.
II.
Intention
Recklessness
For some crimes, however, a person can be found guilty without a guilty mind. These are
generally known as crimes of strict liability.
Mens Rea
Actus non facit reumsss nisi mens sit rea
The above well-known Latin maxim describes the relation between mens rea and a crime in
general. Actus reus means a wrongful act. Mens rea means a wrongful intention. The maxim
means that an act does not itself make one guilty unless the mind is also guilty. The mere
commission of a criminal act or violation of law is not enough to constitute a crime. These
generally require, in addition, some elements of wrongful intent or other fault. Mens Rea is a
technical term. It means some blameworthy condition of the mind, the absence of which on any
particular occasion negatives the condition of crime. It is one of the essential ingredients of
criminal liability. A criminal offences is said to have been committed only when an act, which is
regarded as an offence in law, is done voluntarily. Hence, an act becomes criminal only when
done with a guilty mind.
Before a criminal is made liable, he should be proven to have some blameworthy mental
condition (mens rea). For example, when someone attacks you, then, causing injury to him in
private defence is not a crime but, causing injury with the intention of revenge is a crime. This is
how the presence of a guilty mind changes the nature of the offence. But, the requirement of a
guilty mind varies from crime to crime. An intention which would qualify as the required mens
rea for one crime, may not for some other crime. 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.. Hence, although mens rea is a sine qua non
of a criminal act, its type and degree may vary from crime to crime. But, there are cases in which
mens rea is not required for an act to be an offence (statutory offence)
Mens rea under Indian Penal Code
Under the IPC, guilt in respect of almost all the offences is fastened either on the ground of
intention, or knowledge or reason to believe. Though the word mens rea as such is no where
found in the IPC, its essence is reflected in almost all the provisions of the Code. For framing a
charge for an offence under the IPC, the traditional rule of existence of mens rea is to be
followed. Chapter IV of the Code deals with General Exceptions, wherein acts which otherwise
could constitute offences, cease to be so under certain circumstances.
However, this general or traditional rule that mens rea is an essential element in IPC offences is
not without its exceptions. Like all other statutes, the deciding factor on whether mens rea is
required or not, depends on the language of statute and the intention of the legislature as gathered
from the statute.
The maxim does not apply to all the crimes because nowadays offences are accurately defined
and insofar as the Penal Code is concerned, it does not apply in its purely technical sense. Huda
holds the opposite view, because the mental elements or the state of mind of the accursed is
stated in the definition of various offences, e.g.
a. Intentionally,
b. Dishonestly,
c. Fraudulently,
d. Knowingly,
e. Negligently,
f. Voluntarily
g. Rashly, etc,
In this connection one must have clear ideas about will, volition, intention and motive.
Will: a Will is a ripple of thought, a wish or desire.
Volition: Its movement is volition,
Act: When bodily movement follows a will, it becomes an act; thus, will is the author or both:
volition and an act.
As Huda observes, “The longing for an object desired which sets the volition in motion is motive.
The expectation that the desired motions will lead to certain consequences if the intention.”
Intention has been defined as “the fixed direction of the mind to a particular object, or a
determination to act in a particular manner.”
Thus the intention is not a desire, whilst motive is. Motive has a “dynamical”, whilst intention
has a “telescopic aspect”. The one impels the act, the other sees beyond it. Intention in, thus, a
mental formulation involving foresight of some possible end and the desire to seek to attain it.
Intention does not mean ultimate aim and object. It is different from motive. Motive is the
ulterior intention behind the act. On the other hand, motive is the desire for the object we long to
attain for its own sake. Motive is that which prompts a person to a particular course of action. It
is distinguishable from intention, which is the immediate foreseen end to which he directs his
acts. Intention does not necessarily involve expectation: It is the foresight of a desired issue,
however improbable not the foresight of an undesired issue, howsoever probable.
Intention by itself is normally of no legal significance. However when a person does something
the question with what intention he did it is relevant to fix his civil or criminal liability and the
motive for his act is legally irrelevant.
Intention is rarely expressed. It is to be inferred from the circumstances and conduct. As
expressed in Raghbir Singh v. CIT, a man’s intention ought to be judged by his acts and not
from what may be in his mind. Intention is an important element in the definition of each crime.
A person is normally presumed to intend the natural and probable consequences of his acts, so
that his intention will be inferred from what he does. Burden of proving intention lies upon the
prosecution. It has to be proved, unless the same is specifically excluded.
Knowledge
It means certain perception of truth, a belief which results in moral certainty or intelligence
implying truth; proof and conviction see, Section 14 of the Indian Evidence Act, 1872.
Knowledge of the circumstances dissolves itself into three degrees:
•
Actual knowledge which may be inferred from the conduct of the accused.
•
Deliberately refraining from making enquires, the result whereof one might not care
to have; and
•
Unintentionally failing to make injuries which a reasonable and prudent person would
make.
Innocence
It is a dictum that “a man is presumed to be innocent until he is proved guilty”. In India like
England, the accusatorial system prevails and hence it is based upon the presumption of
innocence of the accused. The burden of proof in criminal cases is always upon the prosecution
and never shifts whatever the evidence may be during the progress of the case.
Mistake of fact
Mistake is a kind of ignorance and every mistake involves it, but not vice versa. Ignorance is talk
of true knowledge. Ignorance is a genus and simple ignorance and mistake are its species.
Mistake of fact exists in an unconscious ignorance of forgetfulness of a fact, past or present,
material to the transaction, which does not exist, or in the past existence of a thing which has not
existed. It is a slip made not by design but by mischance.
Mistake of law
Such a mistake happens when a party having full knowledge of the facts comes to an erroneous
conclusion as to their legal effect. It means a mistake as to the existence of the law or the mistake
as to what the law is.
Mens Rea: Is it required in all cases?
Considering the question of requirement of mens rea, the Hon'ble Supreme Court in
Gujarat Travancore Agency v. Commissioner of Income-tax, Kerala observed: ...In the
case of a proceeding under Section 271(1)(a), however, it seems that the 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. vs S.I. Of Police, And Anr1. it was held 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.
1
1986 CriLJ 1120
In Commissioner of Sales Tax v. Rama and Sons, General Merchant, Ballia, the
Allahabad High Court observed as under:"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 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 'Lal Behari v. State (E)', it was held by the Hon'ble Bench of Allahabad High court that
no mens rea is required for an offence of contempt of court; what was meant is that no
criminal intention or motive behind the deliberate doing of an act is required.
In view of these position of law, a fortiori, it is also to be remembered that the degree of
mens rea required for a particular common-law crime varied. For example, The offence of
Murder is required a malicious state of mind, whereas Larceny is required a felonious state
of mind.
DIFFERENCE BETWEEN TORT AND CRIME
a. Meaning of crime
Blackstone defined crime defined crime as an act committed or omitted inviolation of a
public law either forbidding or commanding it. A crime is a violation of the public rights and
duties due to the whole community considered as a community.
Stephen observed a crime is a violation of a right considered in reference to the evil
tendency of such violation as regards the community at large.
According to Austin, crime is any act or omission which the law punishes. A wrong which
is pursued at the discretion of the injured party and his representatives is a civil injury: a
wrong which is pursued by the sovereign or his subordinates is a crime.
b. Meaning of Tort
The word tort comes from the Latin term torquere, which means "twisted or wrong."
The English Common Law recognized no separate legal action in tort. Instead, the British
legal system afforded litigants two central avenues of redress: Trespass for direct injuries,
and actions "on the case" for indirect injuries. Gradually, the common law recognized
other civil actions, including Defamation, libel, and slander. Most of the American
colonies adopted the English common law in the eighteenth century. During the
nineteenth century, the first U.S. legal treatises were published in which a portion of the
common law was synthesized under the heading of torts.
c. Difference between crime and tort
TORT
I.
A tort is an infringement of private
CRIME
I.
rights belonging to an individual
A crime is an invasion of public right
or duties affecting the whole society /
community
II.
In tort civil action is brought by the
II.
injured party himself
III.
In tort the intention of wrong doer is of
secondary importance and in some
In crime the proceedings conducted in
the name of state
III.
In crime intention is of primary
importance
cases of no important to all
IV.
V.
Tort is considered as a private wrong
In tort a wrong-doer has to pay
IV.
V.
damages to the injured party
VI.
VII.
Crime is regarded as public wrong
In crime wrongdoer is punished in
interest of society by the state
Whatever amount paid for tortuous acts
VI.
The amount of fine imposed in criminal
in the form of compensation goes to the
acts goes to Government treasury , in
injured person
exceptional cases goes to victim
Most of the law of torts is judge made VII.
All the crimes are defined and codified.
law. It is not codified
VIII.
The purpose of awarding compensation VIII.
The purpose of the criminal law is to
to the injured party is to make good the
protect the society by preventing and
loss suffered by him.
deterring the offender from committing
further offences
IX.
The nature of punishment is light that
IX.
too in the form of awarding damages
The nature of punishment is heavy and
serious from death to fine as per
severity of the offence.
X.
Mens rea has no place in tort
X.
Generally an act shall not be punished
as a crime unless there is mens rea
actually present in the wrong doer
XI.
Burden
of
proof
lies
on
the
XI.
Burden of proof lies on the state.
complainant/injured.
XII.
Principles of natural justice, good XII.
Strict rule of procedure and principles
conscience, equality, etc., are followed
are followed in fixing the liability of
in fixing the wrong-doer liability.
the criminal.
Distinction between Crime and Breach of Contract
Distinction between Crime and Breach of Contract are as follows:
I.
In crime, the injured party cannot sue for damages. The injury to the victim is deemed as
an injury to the society. It is the violation of public right. Hence the State prosecutes the
accused. The burden of proof lies upon the State. If the wrongful act is proved, the
accused is put in imprisonment or imposed fine, or both. Such fine is not paid to the
victim. It is credited into the State’s account. But, in case of breach of contract, the
injured party has right only for liquidated damages i.e. presented or actual damages.
II.
The object of the criminal law is to project the peace of the society, while the object of
law on the breach of contract is to protect the rights of the parties in a contract.
III.
Mens rea (ill intention) is an important factor in imposing the Criminal liability upon the
wrong-doer where-as, in breach of contract, the motive is not an essential factor. The
defaulting party has to pay the pre-settled and actual damages.
IV.
A wrongful act is an infringement of right in rem. The wrong¬doer has a ‘Duty in rem’
i.e., he should not do harm or injury to any person. It is a statutory duty. But, a breach of
contract is an infringement of a right in personam i.e., a right available only against some
determinate person or body and for which the community at large has no concern.
V.
The Criminal law which deals with crimes and offences is a separate branch, whereas
breach of contract is a species of law of contract, which belongs to civil law.
VI.
The criminal law is completely codified one while the law relating to contracts considers
certain trade customs, though it has been codified.
VII.
In crime, the victims are not paid damages. The accused is sent to jail or imposed fine or
both. The fine goes to the State. However, in breach of contract, the party is entitled only
for actual damages.
General Explanations
Definitions in the Code to be understood subject to exceptions
Section 6 of Indian Penal Code
Throughout this Code every definition of an offence, every penal provision and every illustration
of every such definition or penal provision, shall be understood subject to the exceptions
contained in the Chapter entitled “General Exceptions”, though those exceptions are not repeated
in such definition, penal provision, or illustration.
Illustrations

The sections, in this Code, which contain definitions of offences, do not express that a
child under seven years of age cannot commit such offences; but the definitions are to be
understood subject to the general exception which provides that nothing shall be an
offence which done by child under seven years of age.

A, a police-officer, without warrant, apprehends Z who has committed murder. Here A is
not guilty of the offence of wrongful confinement; for he was bound by law to apprehend
Z, and therefore the case falls within the general exception which provides that “nothing
is an offence which is done by a person who is bound by law to do it”.
Sense of expression once explained
Section 7 of Indian penal code
Every expression which is explained in any part of this Code, is used in every part of this Code
in conformity with the explanation.
Section 8:- Gender
The pronoun “he” and its derivatives are used of any person, whether male or female.
Section 9:- Number
Unless the contrary appears from the context, words importing the singular number include the
plural number, and words importing the plural number include the singular number.
Section 10:- “Man” “Woman”
The word “man” denotes a male human being of any age; the word “woman” denotes a female
human being of any age.
Section 11:- “Person”
The word “person” includes any Company or Association or body of persons, whether
incorporated or not.
Section 12:- “Public”
The word “public” includes any class of the public or any community.
Section 14:- “Servant of Government”
The words “Servant of Government” denote any officer or servant continued, appointed or
employed in India by or under the authority of Government.
Section 17:- “Government”
The word “Government” denotes the Central Government or the Government of a State.
Section 18:- “India”
“India” means the territory of India excluding the State of Jammu and Kashmir.
Section 19:- “Judge”
The word “Judge” denotes not only every person who is officially designated as a Judge, but also
every person –
who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive
judgment, or a judgment which, if not appealed against, would be definitive, or a judgment
which, if confirmed by some other authority, would be definitive, or who is one of a body of
persons, which body of persons is empowered by law to give such a judgment.
Illustrations

A collector exercising jurisdiction in a suit under Act 10 of 1859, is a Judge.

A Magistrate exercising jurisdiction in respect of a charge on which he has power to
sentence to fine or imprisonment with or without appeal, is a Judge.

A member of a panchayat which has power, under Regulation VII, 1816, of the Madras
Code, to try and determine suit, is a Judge.

A Magistrate exercising jurisdiction in respect of a charge on which he has power only to
commit for trial to another Court, is not a Judge.
Section 20:- “Court of Justice”
The words “Court of Justice” denote a Judge who is empowered by law to act judicially alone, or
a body of Judges which is empowered by law to act judicially as a body, when such Judge or
body of Judges is acting judicially.
Illustrations

A Panchayat acting under Regulation VII, 1816, of the Madras Code, having power to try
and determine suits, is a Court of Justice.
Section 21:- “Public servant”
The words “public servant” denote a person falling under any of the descriptions hereinafter
following, namely –
 Every Commissioned Officer in the Military, Naval or Air Forces of India;
 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;
 Every officer of a Court of Justice (including a liquidator, receiver 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 keep any document, or to take charge or dispose of any property,
or to execute any judicial process, or to administer any oath, or to interpret, or to preserve
order in the Court, and every person specially authorized by a Court of Justice to perform
any of such duties;
 Every juryman, assessor, or member of a panchayat assisting a Court of Justice or public
servant;
 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;
 Every person who holds any office by virtue of which he is empowered to place or keep
any person in confinement;
 Every officer of the 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;
 Every officer whose duty it is as such officer, to take, receive, keep or expend any
property on behalf of the Government, or to make any survey, assessment or contract on
behalf of the Government, or to execute any revenue process, or to investigate, 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 Government,
or to prevent the infraction of any law for the protection of the pecuniary interests of the
Government;
 Every officer whose duty it is, as such officer, to take, receive, keep or expend any
property, to make any survey or assessment 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 the people of any village, town or district;
 Every person who holds any office in virtue of which he is empowered to prepare,
publish, maintain or revise an electoral roll or to conduct an election or part of an
election;
 Every person:
 in the service or pay of the Government or remunerated by fees or commission for the
performance of any public duty by the Government;
 in the service 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).
Illustrations
A Municipal Commissioner is a public servant.
Explanations
Persons falling under any of the above descriptions are public servants, whether appointed by the
Government or not.
Wherever the words “public servant” occur, they shall be understood of every person who is in
actual possession of the situation of a public servant, whatever legal defect there may be in his
right to hold that situation.
The word “election” denotes an election for the purpose of selecting members of any legislative,
municipal or other public authority, of whatever character, the method of selection to which is
by, or under, any law prescribed as by election.
Section 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 the earth.
Section 23:- “Wrongful gain”
Wrongful Gain – is gain by unlawful means of property to which the person gaining is not
legally entitled.
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.
Section 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”.
Section 25:- “Fraudulently”
A person is said to do a thing fraudulently if he does that thing with intent to defraud but not
otherwise.
Section 26:- “Reason to believe”
A person is said to have “reason to believe” a thing, if he has sufficient cause to believe that
thing but not otherwise.
Section 29:- “Document”
The word “document” denotes any matter expressed or described upon any substance by means
of letters, figures or marks, or by more than one of those means, intended to be used, or which
may be used, as evidence of that matter.
Explanations
It is immaterial by what means or upon what substance the letters, figures or marks are formed,
or whether the evidence is intended for, or may be used in, a Court of Justice, or not.
Illustrations
 A writing expressing the terms of a contract, which may be used as evidence of the
contract, is a document.
 A cheque upon a banker is a document.
 A power-of-attorney is a document.
 A map or plan which is intended to be used or which may be used as evidence, is a
document.
 A writing containing directions or instructions is a document.
Explanations
Whatever is expressed by means of letters, figures or marks as explained by mercantile or other
usage, shall be deemed to be expressed by such letters, figures or marks within the meaning of
this section, although the same may not be actually expressed.
Illustrations
A writes his name on the back of a bill of exchange payable to his order. The meaning of the
endorsement as explained by mercantile usage, is that the bill is to be paid to the holder. The
endorsement is a document, and must be construed in the same manner as if the words “pay to
the holder” or words to that effect had been written over the signature.
Section 30:- “Valuable security”
The words “valuable security” denote a document which is, or purports to be, a document
whereby any legal right is created, extended, transferred, restricted, extinguished or released,
or who hereby any person acknowledges that he lies under legal liability, or has not a certain
legal right.
Illustrations
A writes his name on the back of a bill of exchange. As the effect of this endorsement is to
transfer the right to the bill to any person who may become the lawful holder of it, the
endorsement is a “valuable security”.
Section 33:- “Act”. “Omission”

The word “act” denotes as well as series of acts as a single act:

the word “omission” denotes as well a series of omissions as a single omission.
Section 34:- Acts done by several persons in furtherance of common intention –
When a criminal act is done by several persons in furtherance of the common intention of all,
each of such persons is liable for that act in the same manner as if it were done by him alone.
Section 36:- Effect caused partly by act and partly by omission
Wherever the causing of a certain effect, or an attempt to cause that effect, by an act or by an
omission, is an offence, it is to be understood that the causing of that effect partly by an act and
partly by an omission is the same offence.
Illustrations
A intentionally causes Z&‘s death, partly by illegally omitting to give Z food, and party by
beating Z. A has committed murder.
Section 37:- Co-operation by doing one of several acts constituting an offence
When an offence is committed by means of several acts, whoever intentionally co-operates in the
commission of that offence by doing any one of those acts, either singly or jointly with any other
person, commits that offence.
Illustrations

A and B agree to murder Z by severally and at different times giving him small doses of
poison. A and B administer the poison according to the agreement with intent to murder
Z. Z dies from the effects the several doses of poison so administered to him. Here A and
B intentionally co operate in the commission of murder and as each of them does an act
by which the death is caused, they are both guilty of the offence though their acts are
separate.

A and B are joint jailors, and as such have the charge of Z, a prisoner, alternatively for
six hours at a time. A and B, intending to cause Z&‘s death, knowingly co-operate in
causing that effect by illegally omitting, each during the time of his attendance, to furnish
Z with food supplied to them for that purpose. Z dues of hunger. Both A and B are guilty
of the murder of Z.

A, a jailor, has the charge of Z, a prisoner. A, intending to cause Z&‘s death, illegally
omits to supply Z with food; in consequence of which Z is much reduced in strength, but
the starvation is not sufficient to cause his death. A is dismissed from his office, and B
succeeds him. B, without collusion or co-operation with A, illegally omits to supply Z
with food, knowing that he is likely thereby to cause Z&‘s death. Z dies of hunger. B is
guilty of murder, but, as A did not co-operate with B. A is guilty only of an attempt to
commit murder.
Section 38:- Persons concerned in criminal Act may be guilty of different offences
Where several persons are engaged or concerned in the commission of a criminal act, they may
be guilty of different offences by means of that act.
Illustrations

A attacks Z under such circumstances of grave provocation that his killing of Z would be
only culpable homicide not amounting to murder. B, having ill-will towards Z and
intending to kill him, and not having been subject to the provocation, assists A in killing
Z. Here, though A and B are both engaged in causing Z&‘s death, B is guilty of murder,
and A is guilty only of culpable homicide.
Section 39:- “Voluntarily”
A person is 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.
Illustrations

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 even 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.
Section 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, 187, 194, 195, 203, 211, 213, 214, 221, 222, 223, 224,225,
327, 328, 329, 330, 331, 347, 348, 388, 389 and 445, the word “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, 216 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 imprisonment for a term of six months or upwards, whether with or without fine.
Section 41:- “Special law”
A “special law” is a law applicable to a particular subject.
Section 42:- “Local law”
A “local law” is a law applicable only to a particular part of India.
Section 43:- “Illegal”, “Legally bound to do”
The word “illegal” is applicable to everything which is an offence or which is prohibited by law,
or which furnishes ground for a civil action; and a person is said to be “legally bound to do”
whatever it is illegal in him to omit.
Section 44:- “Injury”
The word “injury” denotes any harm whatever illegally caused to any person, in body, mind,
reputation or property.
Section 45:- “Life”
The word “life” denotes the life of a human being, unless the contrary appears from the context.
Section 46:- “Death”
The word “death” denotes the death of a human being unless the contrary appears from the
context.
Section 52:- “Good faith”
Nothing is said to be done or believed in “good faith” which is done or believed without due care
and attention.
Section 52A:- “Harbour”
Except in section 157, and in section 130 in the case in which the harbour is given by the wife or
husband of the person harboured, the word “harbour” includes the supplying a person with
shelter, food, drink, money, clothes, arms, ammunition or means of conveyance, or the assisting
a person by any means, whether of the same kind as those enumerated in this section or not, to
evade apprehension.