The Indian Penal Code came into existence with effect from 1-1-1862. In the year 1833, the first law commission was constituted under the chairmanship of Lord Mancanlley, Mecloyed, Enderson and Millet were the members of the law commission. The commission has prepared the draft of Indian Penal Code.
Before we study the Act, it is necessary to know the element of offence:
Intention:– According to the Indian Penal Code no act can be said to be an offence unless there was a presence of malice intention. The circumstance which may convert a deed into offence and that too was in the very knowledge of the accused when he committed the offence is called intention.
Cause: Mental status of a person owing to which one is inspired to do an act is called cause. ‘ cause’ is not the essential element of the ‘ crime’.
Abetment: To help directly or indirectly or to involve in any act or in conspiracy or to abate person to do any of above is called- Abatement’.
Conspiracy: When two or more person do any legal act by illegal means or illegal act by legal means, it is called conspiracy.
ILLUSTRATION: (A) A gives Z fifty strokes with a stick. Here A may have committed the offence of voluntarily causing hurt to Z by the whole beating, and also by each of the whole beatings.
(B) but if, while A is beating Z, Y interface and A intentionally strikes Y, here, as the blow given to Y is not part of the act whereby A voluntarily causing hurt to Z, and no another for the blow given to Y.
- A person sitting on the roof cannot try to murder a person passing over by an aeroplane.
- The act of pick-pocketing of any person sitting on a roof not be done by a person walking on the road.
- A person cannot be murdered by shooting him on his picture.
‘A’ a swimmer see a person ‘B’ sinking in the river, but does not save him and thus ‘B’ died. Here the act of ‘A’ falls on the purview of immorality and not of the crime as he was not legally bound to says ‘B’.
PRINCIPAL OF CONNECTIVITY: Act of crime, attempt and its result all the three should have direct relation.
RULE OF SOCIAL DANGER: If society is deeply affected by the crime, the punishment will be more than the crime affects lesser meaning thereby the gravity of punishment depends upon the gravity of the crime.
RULE OF EXCEPTION: Every criminal act should have to be considered within the parameter of general exception whether the accused has claimed for the exception or not.
PRESUMPTION OF NON-GUILTY:- Every person is to be considered innocent unless he is convicted by the court.
Protection from Retrospective effect of law:– It is the basic principle of criminal law that no act can be put into the definition of crime with retrospective effect. Every statue which takes away vested rights must be presumed not to have a retrospective operation unless the language clearly supports a country construction.
To commit any act or to omit voluntarily:- Any person can be held responsible for doing or omitting the act if it has been done voluntarily.
Principle of tit for tat: What has been behaved by accused of the same treatment should be given by the state with the accused.
Principle of reformation: A person born criminal by birth is the circumstance which makes a person accused or criminal hence the motto of punishment should be for providing one more opportunity.
Thus, besides the right to hearing the above principle are also considered by the court:
Ideal principle of punishment:– Above principle is considered by the court while hearing an accused on punishment, but no principle is complete for taking into consideration as a whole. The aim of punishment should always be to reform and to have a fear of law to get rid of crime in future.
Mens –rea- in Indian Penal Code – Men’s rea has not clearly been defined in Indian Penal Code but it is included impliedly which is clearly seen by the inclusion of word voluntarily, fraudulently, wrongful, illegal profit and wrongful illegal loss.
Existence of Men’s – Rea in Indian Penal Code – In IPC we can see Men ‘s Rea in three forms –
In the form of possibility: Excitement, ignorance, dishonesty, fraud and intentionally.
In the form of Negativity: In a number of instances, where the nature of action has been found to be committed with the offensive intention, the act has not been considered a criminal act such as
In general, exceptions decided under S/76 – 106 and exemption of section 300.
Strict Liability– S/268 – Public nuisance, S/272 – Food adulteration, S/312- Abortion, S/132- Sale of valour books. The principle has been laid down in Rylands v/s Fletcher Vatt. In the past one can be held liable for committing a crime only as it was very difficult to assess one’s intention in the lack of development of such science. A famous legal expert Coke says – even God can not know the inner intention of human beings. Gradually court gave weight that a person can be punished only if it is proved that the person who has committed crime was well aware of his acts and that no crime can be committed without men’s rea.
The chief justice coke of court a common law in his book. “Third Institute” has recognized that source of the principle from the maximum “Reum non facit nisi mens sit rea”.
This was said by Lord coke as “Actus Non-Facit Nisi Mens Sit Rea”.
Meaning of Mens Rea: This is also called wrongful or offensive intention i.e., no act can be termed as offence unless there is the presence of an evil mind. State of Maharashtra v/s Mayor Hans George AIR 1965 S.C. – Held that only act cannot make a person offender unless there is a presence of evil intention. Thus, Men’s Rea means an intention of doing an act which if done, it would fall within the meaning, of ‘Crime’. But if there is the evil intention, but no action has been done then more evil cannot be termed as a crime. Such as: ‘A’ decides to murder ‘B’, but he does not go ahead with his intention. It is not an offence hence not punishable.
According to Stephen, it is a word of a different meaning.
Value of Men’s Rea in English law:
English Penal Code is based on this principle only hence there is much weight of Men’s Rea.
Court of India:- Indian Penal Code and Men’s Rea :
Though in Indian Penal Code Men’s Rea has not been defined , but P.C. in the case of Sri Niwasan v/s Emperor AIR 1947 and SC in the case of Hari Prasad Rao v/s State AIR 1957 S.C. and Mathhu Lal v/s state of MP, AIR 1966 held that in India unless Men’s Rea has not clearly been excluded by any enactment, the Act which is with regard to any offence, the interpretation will be done on the basis of Men ‘s Rea.
Exception of Men’s Rea : Public Nuisance, civil procedure, vicarious liability, a crime punishable with a nominal fine.
Actus Reus: The acts prohibited by law are called Actus Reus.
In a criminal liability testing of physical presence can be ascertained by following six conditions:-
- Where there is no physical partnership vig. Abetment (S/107) and conspiracy (S/120-B)
- The direct presence of physical partnership.
- Where any colleague has interfered physically then both can be held liable.
- Result made out by any own conduct of
- Contributory negligence of
- Where their partnership is not required in committing any act.
In Actus Reus one can either be held wholly liable or acquitted but contributory negligence has not any role.
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