Concept and Elements of Crime

Crime has no perfect definition, because its content changes. The Bharatiya Nyaya Sanhita, 2023 (BNS), which replaced the Indian Penal Code, 1860 (IPC), does not define "crime". It defines each offence separately, and it defines the word "offence" in Section 2(24). The clause has one rule and two exceptions, so it is easier to read in parts.

A crime is generally an act that is prohibited by law and goes against society's moral values. For example, robbery and murder are crimes because they are considered seriously wrong by society. However, breaking a contract is generally a civil wrong because it does not offend society's moral sense in the same way.

Jurists have defined crime in different ways.

No definition of crime is perfect. A definition should explain what is common to all crimes and what separates them from other legal wrongs. R.C. Nigam (author of Law of Crimes in India) says that thinkers like Blackstone and Kenny failed to create such a definition. So it is better to understand crime by studying its main features.

The content of crime changes with time and place.

• Heresy was once punished by burning. No civilised State punishes a person for his religious belief today.
• Sati was long praised in parts of India. It is now a crime under the Sati (Prevention) Act, 1987.
• Bigamy among Hindus became a crime after the Hindu Marriage Act, 1955. It is now punished by Section 82 of the BNS.
• Adultery was an offence under Section 497 of the IPC. In Joseph Shine v. Union of India (2018), the Supreme Court struck the section down, and the BNS has no adultery offence.

1. Crime is a public wrong. It harms society as a whole, and not only the person who suffers. For this reason, the State prosecutes the offender, usually even if the victim does not want to go on.

2. Crime is an act or omission that a law forbids or commands. A person can be punished only under the Sanhita, and only for what it makes an offence.

3. Crime carries a punishment. The punishment may be death, imprisonment, fine or community service. The aim is to deter, reform and protect society.

4. Crime is relative. Different societies and different ages treat different acts as crimes. A welfare State creates new crimes, such as untouchability, forced labour and child marriage, when it thinks that a civil remedy is not enough.

5. Most crimes need a guilty mind. The maxim is actus non facit reum nisi mens sit rea, which means that an act does not make a person guilty unless his mind is also guilty.

Crime and Civil Wrong

Crime and a civil wrong differ in their purpose, legal process, and the level of proof required in court.

1. Crimes are considered more serious wrongs. They cause greater harm to individuals or society, are often deliberate, and are hard to detect, so the law punishes them.
2. One act can be both a crime and a civil wrong. As Stephen explained, a person can be both a father and a son. Similarly, if someone beats another person, it can be a criminal offence (hurt) as well as a civil wrong (battery). The victim can claim compensation, while the State can prosecute the accused.
3. The difference between crime and civil wrong can change. An act that was once treated only as a civil wrong can later become a crime if the law considers compensation insufficient. For example, killing another person's cattle and breach of trust were once treated only as civil wrongs.
4. Not every crime harms a private individual. Some crimes harm the State or society rather than a particular person. Sedition and possessing tools for forging currency are examples. Attempted suicide, historically discussed as an example, primarily affects the person himself. Therefore, Blackstone's statement that every crime is a civil injury is not entirely correct.

Crime and Moral Wrong

1. Criminal law is narrower than morality. No society has made every moral wrong a crime. Ingratitude, idleness and pride are moral faults, but no court punishes them.
2. Some acts are both immoral and criminal. Murder, rape, arson, robbery and theft are examples. Where law and morality agree, the punishment is generally heavier.
3. Some acts are criminal but not immoral. Breach of a by-law, or failure to keep a light on a bicycle, is an offence, though it carries no moral blame.
4. Some acts are immoral but not criminal. If a neighbour is dying of hunger while your granary is full, you do not commit a crime by refusing to help him. The law has no general duty to rescue.
5. Stephen’s view is that the two should work together. Anything that increases moral guilt is a reason to increase the punishment, and a conviction turns a passing public disapproval into a lasting judgment.

The scope of criminal law refers to the types of offences it covers, the people and places to which it applies, and the limits of its authority.

The Interests that Criminal Law Protects

Criminal law does not cover every wrong. It covers acts that threaten an interest which society treats as important. The table groups these interests.

The scope of criminal law is wider than one law or code. Special laws, such as the Arms Act, 1959, also create offences related to specific subjects. The general principles of criminal law apply to these offences as well.

The Territorial Scope

1. Criminal law applies to every person within India. It does not matter whether he is a citizen or a foreigner. Section 1(3), quoted above under "Nature of Crime", fixes this rule.
2. It also reaches some offences committed abroad.

1. A foreigner abroad can be tried in India if his offence is completed here. In Mobarik Ali Ahmed v. State of Bombay (1957), a man in Karachi cheated a Bombay firm through representations that reached it in Bombay. The Supreme Court held that he could be tried in India, because the offence of cheating was completed within India.
2. Some persons are outside the reach of ordinary criminal courts. The President and the Governors are immune from criminal proceedings during their term of office under Article 361 of the Constitution. Foreign diplomats have immunity under the Diplomatic Relations (Vienna Convention) Act, 1972.

The Limits of Criminal Law

1. Only conduct that the law makes punishable is a crime. This is the rule in Section 1(3) and in Article 20(1) of the Constitution. No one can be punished for an act that was not an offence when he did it.
2. Even punishable conduct may be excused. The General Exceptions apply to every offence, as Section 3(1) says.

1. Criminal law must satisfy the Constitution. A court can strike down an offence that violates a fundamental right. In Shreya Singhal v. Union of India (2015), the Supreme Court struck down Section 66A of the Information Technology Act, 2000, which punished certain online speech, because it was vague and restricted free speech. In Joseph Shine v. Union of India (2018), it struck down the offence of adultery. In Navtej Singh Johar v. Union of India (2018), it read down the offence in Section 377 of the IPC, so far as it covered consensual acts between adults.
2. Criminal law should be used as a last resort. John Stuart Mill’s harm principle, in On Liberty (1859), says that the State may restrict a person’s liberty only to prevent harm to others. On this view, the State should use criminal punishment only where a civil or administrative remedy is not enough.

Not all offences are treated in the same way. For example, murder and a minor quarrel require different investigation, trial procedures and punishments. Therefore, the law classifies offences to determine how each should be handled by the police and courts. Offences are mainly classified on four bases: procedure, nature of the wrong, subject matter and seriousness.

Classification By Procedure

This is the most practical classification. The First Schedule of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the CrPC, 1973, classifies every offence under the Bharatiya Nyaya Sanhita into four pairs of categories.

The classification is not based only on how serious an offence is. Therefore, we must refer to the First Schedule to determine its category. The following two sections explain how this classification works.

The table shows that seriousness and procedure do not always go together. A cognizable offence can still be bailable, as in Section 106(1).

Classification By Nature of the Wrong

By Subject Matter and Seriousness

By Source

A crime is generally explained through four essential elements: a human being, mens rea, actus reus and injury.

1. The human being must be capable of committing a crime. The BNS defines “person” widely.

1. Mens rea is the mental element. Mens rea refers to the guilty mind or mental state required to commit a particular offence.
2. Actus reus is the physical element. It can be an act or an illegal omission.
3. Injury covers the person and society. Any harm illegally caused to a person's body, mind, reputation or property. The BNS defines “injury” in Section 2(14).

Exceptions to the Ordinary Rule

The four elements are a general explanation of crime, not an absolute requirement in every offence. Two important exceptions are:

1. Strict liability offences need no mens rea. The statute punishes the act, whatever the state of mind of the doer. In State of Maharashtra v. Mayer Hans George (1965), a sailor was convicted for carrying gold through Bombay, although he did not know of a new Reserve Bank rule. In State of Madhya Pradesh v. Narayan Singh (1989), lorries carried fertiliser bags towards another State without a permit, and the Supreme Court again held that mens rea was not needed.
2. Inchoate offences are offences where the law punishes conduct before the intended crime is completed or the final harm occurs. Attempt, abetment and criminal conspiracy are punished early so that serious harm can be prevented.

Strict liability offences exist to protect the public, even when there is no guilty intention. Inchoate offences are punished to prevent serious crimes before they are completed.

Crime is a public wrong that the law forbids and punishes. It differs from a civil wrong in its aim, its procedure and its proof, and it is narrower than a moral wrong. Its scope is set by the interests that it protects, by the rules on who and where the law reaches, and by the limits that legality, the General Exceptions and the Constitution place on it. Offences are classified by procedure, by nature and by seriousness, and each classification has a practical use.

Every crime has four elements: a human being, a guilty mind, a guilty act and an injury. The next topic examines the two central elements in detail, and then follows a crime through its stages to its completion.