Principles of Criminal Liability

What Actus Reus Means

Criminal law punishes conduct, and not thoughts. The conduct that the law looks at is called the actus reus.

1. Actus reus is the physical element of a crime. Kenny described it as the result of human conduct that the law seeks to prevent. It has three parts: the conduct, the circumstances in which it happens, and the consequence.
2. Murder shows all three parts. The conduct is firing the gun. The circumstance is that the victim is a living person. The consequence is death. If any part is missing, the offence is not complete. If A fires at a corpse, believing it to be alive, there is no murder, because the circumstance is missing.
3. The conduct must be voluntary. The law punishes a person for what he chooses to do. A reflex, a fit or a sleepwalker's movement is not an act for the purposes of criminal law. If A is pushed by a stranger and falls on B, A has not committed assault, because A did not act.

Acts and Omissions

Most crimes are committed by doing something. Some are committed by failing to do something.

1. The general rule is that the law punishes an omission only where there was a legal duty to act. A person who watches a stranger drown commits no crime. He may be blamed morally, but he had no legal duty. The Sanhita deals with omissions in its general explanations.

1. A legal duty to act can arise in several ways.

1. An omission can combine with an act. If A starves Z and also beats him, and Z dies, A commits murder. The Sanhita treats an effect that is caused partly by an act and partly by an omission as the same offence (Section 3(7)).

Causation

The actus reus of many crimes includes a result, such as death. The law must then ask whether the accused caused it.

1. Factual cause. Ask: but for his conduct, would the result have happened? If it would have happened anyway, his conduct was not the cause.
2. Legal cause. His conduct must also be a real and substantial cause. Suppose A wounds B, and B, while recovering in hospital, is killed by a collapsing ceiling. A's act was a cause in fact, but the collapse is a new and independent event, called a novus actus interveniens, and it breaks the chain. A is liable for the wound, and not for the death.
3. A result that did not follow. In R v. White (1910), a man put poison in his mother's drink, intending to kill her. She died of a heart attack before the poison could act. He was guilty of attempted murder, and not of murder, because his act did not cause her death.

What Mens Rea Means and Why It Is Needed

1. Mens rea means a blameworthy state of 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. A man who takes a coat from a cloakroom, honestly believing it to be his own, is not a thief. A man who takes the same coat, knowing it is not his, is.
2. There are three reasons for the rule. Punishment is a moral judgment, and it is fair only for those who chose to do wrong. A person who did not know what he was doing cannot be deterred by the threat of punishment. And the rule protects honest people from being punished for accidents.
3. The Sanhita does not use the words “mens rea”. It describes the mental state in each offence, with words such as “intentionally”, “knowingly”, “voluntarily”, “dishonestly” and “fraudulently”.
4. Courts presume that a statute needs mens rea. In Nathulal v. State of Madhya Pradesh (1966), a grain dealer was prosecuted under the Essential Commodities Act, 1955 for keeping stock without a licence. The Supreme Court held that mens rea is an essential ingredient of the offence unless the statute clearly excludes it, and it acquitted him because he had acted in good faith.

The Four Forms of Mens Rea

The law recognises four mental states, in falling order of blame.

1. Intention and knowledge are different. Intention is what a person wants. Knowledge is what a person is aware of. A person may know that his act is likely to cause death, without wanting that result. The law treats both as serious. Section 100 shows this.

1. The difference is shown by Emperor v. Dhirajia (Allahabad High Court, 1940). A woman jumped into a well with her baby to escape her husband's beating. She survived, and the baby died. She may not have intended the baby's death, but she knew that the jump was likely to kill it, so she was guilty of culpable homicide
2. Rashness and negligence are lower forms. A rash person sees the risk and takes it. A negligent person does not think of the risk at all. Section 106(1) punishes causing death by a rash or negligent act, with imprisonment of up to five years, and up to two years for a registered medical practitioner who does so while performing a medical procedure. The section punishes carelessness, and not an intention or knowledge of death.

The Mental-State Words in the Sanhita

Section 2 defines five words that appear in many offences. Each describes a particular mental state.

Transferred Intention and Motive

1. Transferred intention. If A puts poison in B's milk to kill B, and C drinks it and dies, A is liable for C's death. His intention goes with the harm.
2. Motive is different from intention. Motive is the reason for the act, such as revenge or greed. Intention is the purpose of the act itself. Motive is not an element of the crime, but it helps to prove intention. In Om Prakash v. State of Uttaranchal (2003) and State of U.P. v. Arun Kumar Gupta (2003), the Supreme Court held that failure to prove a motive does not matter where guilt is proved in some other way.

Strict Liability

1. Some statutes punish an act, whatever the mind of the doer. They are usually laws that protect the public, such as laws on foreign exchange, food and essential commodities. The legislature's reasoning is that these harms are serious, and that proof of a guilty mind would make enforcement almost impossible.
2. The courts first presume that mens rea is needed. They then ask whether the words, purpose and context of the statute remove the presumption.
3. State of Maharashtra v. Mayer Hans George (1965).** A German sailor flew from Zurich to Manila. The plane stopped at Bombay, and he was found wearing a jacket with about 34 kilograms of gold. The Reserve Bank had changed its rules a few days earlier, and he did not know of the change. The Foreign Exchange Regulation Act, 1947, which the Foreign Exchange Management Act, 1999 has since replaced, was about conserving foreign exchange. By a majority, the Supreme Court held that mens rea was not needed, and it restored his conviction. Subba Rao J dissented.
4. State of Madhya Pradesh v. Narayan Singh (1989).** Lorries carried fertiliser bags from Madhya Pradesh to Maharashtra without a permit. Section 7(1) of the Essential Commodities Act, 1955 applied to a person who contravenes an order “whether knowingly, intentionally or otherwise”. The Supreme Court held that mens rea was not needed.

Mistake of Fact and Mistake of Law

A mistake can remove mens rea. The law separates two kinds of mistake, and it treats them differently.

1. A mistake of fact can excuse. A person who honestly misunderstands the facts may lack the guilty mind. If A picks up another person's umbrella from a stand, believing it to be his own, he has not acted dishonestly.
2. A mistake of law does not excuse. The maxim is ignorantia juris non excusat. Everyone is presumed to know the law. If it were otherwise, every offender could claim ignorance.

1. The mistake must be honest and reasonable. The words “in good faith” mean that the person must have acted with due care and attention. A careless or invented mistake gives no protection.

Capacity: Who Can Have a Guilty Mind?

Some persons cannot form a guilty mind. The General Exceptions excuse them.

1. Children. The law presumes that a young child cannot understand wrongdoing. Below seven, the presumption is absolute. Between seven and twelve, the court asks whether the particular child had enough maturity to understand what he was doing.
2. Mental illness. The test is legal, and not medical. A person may have a mental illness and still be liable, unless it made him unable to know what he was doing, or that it was wrong. The illness must exist at the time of the act, so a person who commits a crime in a lucid interval cannot claim the exception.
3. Intoxication. The law distinguishes two cases. A person who is drunk without his consent, for example because his drink was spiked, is excused if he could not understand his act. A person who drinks voluntarily is not excused, but the court may consider whether he could form a specific intention. In Basdev v. State of PEPSU (1956), a drunk man shot a boy at a wedding. The Supreme Court held that the man could escape liability only if he was so drunk that he could not form the intention. Mere drunkenness does not remove intent.

The Four Stages

A crime is rarely done in one moment. A person first forms an intention, then prepares, then tries, and then completes the offence. The law must decide at which of these points he becomes liable. The Supreme Court described the stages in State of Madhya Pradesh v. Narayan Singh (1989) as “four stages viz. intention, preparation, attempt and execution”. The first two are generally not punishable, and the last two are.

Intention and Preparation

1. Mere intention is not punishable. In Reg. v. Eagleton (1855), Parke B said that “The mere intention to commit a misdemeanour is not criminal. Some act is required”. A bare intention cannot be proved reliably, a person may change his mind, and a law that punished thoughts would give the State power over the mind of every citizen.
2. Preparation is also generally not punishable. Preparation means arranging the means that are needed to commit the offence. Buying a weapon, collecting poison or studying a route are examples. These acts are usually harmless in themselves, and the person may still give up the plan.
3. The law punishes preparation only for a few grave offences. It acts early in these cases, because waiting for the act to begin could be too late. The main examples are collecting men and arms to wage war against the Government of India (Section 149), making preparation for dacoity (Section 310(4)), concealing a design to commit an offence (Sections 58 to 60), and agreeing with others to commit an offence, which is criminal conspiracy (Section 61).

Attempt

An attempt is a step beyond preparation. The offender has begun to carry out the offence, but he does not complete it.

1. The Sanhita does not define “attempt”. It deals with attempt in two ways. Some offences have their own attempt provisions, and Section 62 is the general rule for the rest.

1. An attempt can be punished even if the offence was impossible. In R v. Shivpuri (House of Lords, 1986), a man dealt in a harmless substance that he believed was a prohibited drug, and he was guilty of attempt. The law punishes the guilty intention and the act, and not only the result.
2. The courts use tests to draw the line between preparation and attempt.

1. he cases show where the line falls.
   • In Malkiat Singh, a truck of paddy was stopped 32 miles from Delhi and about 15 miles from the Delhi-Punjab boundary. There was no attempt to export, because the accused still had time to change their minds.
   • In Mohd. Yakub, the accused unloaded 43 silver ingots, weighing over 1,300 kilograms, at a lonely creek, close to the water, while a sea-craft was heard nearby. They were charged with attempting to export silver under the Customs Act, 1962 and the Imports and Exports (Control) Act, 1947, which the Foreign Trade (Development and Regulation) Act, 1992 has since replaced. It was an attempt, because only loading onto the craft remained.
   • In Narayan Singh, lorries with fertiliser bags, but without a permit, were stopped about eight miles from the Maharashtra border. The trial court and the High Court called it mere preparation. The Supreme Court held that it was an attempt.

Legality and the Rights of the Accused

1. No one is punished except under a law that was in force when he acted. This is the rule of legality. It is found in Section 1(3) of the Sanhita and in Article 20(1) of the Constitution. A person also cannot be given a heavier penalty than the law allowed at the time of the offence.
2. No one is prosecuted and punished twice for the same offence. This is the rule against double jeopardy, in Article 20(2).
3. An accused cannot be compelled to be a witness against himself. This protection against self-incrimination is in Article 20(3).
4. The prosecution must prove guilt beyond reasonable doubt. The accused is presumed innocent. A person who claims a General Exception must prove it, and this rule is in Section 105 of the Indian Evidence Act, 1872, now Section 108 of the Bharatiya Sakshya Adhiniyam, 2023.

Liability for the Acts of Others

1. Joint liability. When several persons commit a criminal act together, each can be liable for the whole act.

1. Corporate liability. A company is a “person” under Section 2(26), so it can be liable. In Standard Chartered Bank v. Directorate of Enforcement (2005), the Supreme Court held that a company can be prosecuted. In Iridium India Telecom Ltd. v. Motorola Inc. (2011), it held that a company can be prosecuted for an offence that needs a guilty mind, because the mind of its directors is treated as the company's mind.
2. Accessories. A person who helps or encourages an offence is liable under the rules on abetment, which are the subject of the next module.

Strict Liability and the Guilty Mind

Motive and Intoxication

Attempt

Joint Liability

A crime is built from a guilty act and a guilty mind, and the law looks at both. The act may be a positive act or an illegal omission, and it must have caused the result. The mind may be intention, knowledge, rashness or negligence, and the Sanhita fixes the meaning of the words that describe it. Strict liability is the exception, and it exists only where a statute clearly requires it.

A crime also has stages. Intention is not punished, preparation is punished only for grave offences, and attempt is punished from the point where the person has committed himself to the offence. Around all of this stand the general principles: legality, protection against double punishment and self-incrimination, the excuses of age and mental illness, and the rules on joint and corporate liability. Together, they decide who is guilty, of what, and how far.