Elements of Crime
Indian Penal Code, 1860 was drafted by Lord Macaulay with three other Commissioners- Macleod, Anderson and Millet. The first Law Commission prepared the draft of the Indian Penal Code. The Bill was passed on 6th October 1860 and came into operation on 1st January, 1862.
Definitions of Crime
The concept of crime has been in existence since time immemorial. However the concept of crime is not susceptible to a precise definition. Russell has admitted that to define crime is a task which so far has not been satisfactorily accomplished by any writer. It has been interpreted and explained from different perceptions from different strata of society. If we attempt to define crime then it can be said to be an act which is both forbidden by law and against the moral sentiments of society. For an act to be a crime it must be opposed to law prevailing at the time. In T.K. Gopal v. State of Karnataka, (2000) 6 SCC 168, Supreme Court held that a crime is an act that subjects the doer to a legal punishment. Law itself is dynamic concept and it keeps on changing according to needs of society. Therefore, it can
be said that the meaning and scope of crime may also change. What is not crime in one generation may be a crime in another generation. Similarly, moral values also change from society to society. What may be morally wrong in one society may not be so in another society. This varying nature and content of crime
poses problem of precise definition.
Following are the definitions given by various jurists:-
- Bentham: Offences are whatever the legislature has prohibited for good behaviour or for bad reasons.
- Blackstone: A crime is an act committed or omitted in violation of a public law forbidding or commanding it.
- Stephen: A crime is a violation of a right, considered in reference to an evil tendency of such violations as regards the community at large.
- Austin: A wrong which is pursued by the sovereign or his subordinates is a crime.
- Kenny: Crime is a wrong whose sanction is punitive and is in no way remissible by any private person, but is remissible by Crown alone if remissible at all.
Miller: Crime is commission or omission of an act which the law forbids or commands under pain of a punishment to be imposed by the State by a proceeding in its own name
.
P.H. Winfield: Crime is a wrong the sanction of which involves punishment and punishment signifies death, penal servitude, whipping, fine, imprisonment or some other evil which, when
once liability to it has been decreed, is not avoidable by any act of the party offending.
Nature of Crime
Crime is a wrong against the society. It shakes the societal conscience and affects the sense of security in a society. It is for this reason the State is the chief prosecutor in any criminal case. It is the duty of the State to bring the criminal to justice and ensure peace in society. A State is expected to have an efficient law and order mechanism so that subjects can lead a peaceful life with no fear of injury to person or property.
Elements of Crime
One of the most fundamental principles of criminal liability is that there must be wrongful act-actus reus accompanied by wrongful intention -mens rea.
Following are the chief elements of crime:-
Mens rea
Mens rea is a Latin word which means evil intent. The general rule applicable in criminal law is actus non facit reum nisi mens sit rea i.e. the act itself does not make a man guilty unless his intentions are so. The existence of liability with respect to crime is dependent upon certain mental conditions. The intent and act must concur to constitute a crime. The responsibility in crime is dependent on doing a willful and voluntary act with a particular intent behind the act. For any criminal liability there must be a voluntary act. It is derived from the maxim actus me invitio factus non est mens actus i.e. an act done by me against my will is not my act at all. No person can be held liable for an act done against his will. Section 39 of the Code defines the term ‘voluntarily’. A person is said to do an act 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. In earlier times the criminal intention was entirely disregarded in respect of offences. The liability in older English law was absolute. It was during 13th and 14th century that requirement of mens rea as a necessary element of crime was established.
The court held that mens rea is an essential element in every offence except in the cases:
(1) cases not criminal in any real sense but which in the public interest are prohibited under penalty.
Strict liability in law of Crimes
Strict liability offences are those offences in which mens rea is not
required to be proved. In such kind of offences, the accused may be held guilty on proof of actus reus even without guilty mind. English courts have consistently held that the liability will be strict if legislature has not defined the offence with reference to the guilty mind. If the intention of the law makers is to exclude mens rea then the offender will be guilty without mental element. In modern legislations, strict liability offences are generally found in special legislations like taxation, traffic offences, environmental offences etc. In State of Maharashtra v. M.H. George, AIR 1965 SC 722 Supreme Court held that offences which adversely affect the economic conditions of the country will be strict liability offence.
Exceptions to the general principle of mens rea
(1) Public nuisance
(2) Criminal libel
(3) Contempt of court
(4) Bigamy
(5) Kidnapping
Actus reus
Actus reus is a Latin term which means physical result of human conduct or consequence of human conduct which is prohibited by law. According to Kenny, actus reus is such result of human conduct which the law seeks to prevent. For example, in homicide, victim’s death is actus reus. Merely evil intention is not enough to constitute a crime. There has to be some manifest voluntary act or omission on the part of offender. Act includes illegal omission also. Requirement of actus reus varies depending upon the definition of the crime. Each section of Indian Penal Code defining an offence provides for a particular kind of human conduct and consequences thereof It is only when particular consequence required in that section is proved, then the actus reus for the particular offence is said to be proved. Actus reus may be with reference to place, time, person, state of mind, consent etc. In case of offence of house breaking, actus reus is with respect to place. In case of house breaking by night, actus reus is with respect with both place and time.
Extent and territorial application of the Code
The Code shall extend to the whole of India. Jammu and Kashmir Reorganization Act, 2019 passed by both houses of Parliament and received the assent of the President on 9th August, 2019 makes Indian Penal Code applicable in the Union Territories of Jammu and Kashmir and Ladakh.
Intra-territorial operation of the Code
As a general rule, enforcement of statutory law is always intra-territorial. No country will allow any other country to enforce its laws within its territory. Section 2 provides for intra-territorial applicability of Indian Penal Code. If any person commits the violation of Indian Penal Code within the territory of India he shall be punishable under the Code. It provides that every person shall be liable to punishment under this Code and not otherwise for every act of omission contrary to the provisions of the Code. Section 2 uses the word ‘every person’. It means that every person, irrespective of caste, creed, nationality, sex, religion, rank etc shall be amenable to the jurisdiction of the court. The word ‘every person’ under this section means and includes citizen of India as well as non-citizens.
In Mubarik Ali Ahmad v. State of Bombay, AIR 1957 SC 857 Supreme Court clarified that the phrase ‘every person’ means all persons without limitation irrespective of nationality, allegiance, rank, caste, creed or colour. This section must be understood as comprehending every person without exception barring such as may be specifically exempted from criminal proceeding by virtue of Constitution or any other statutory provision. Further, Section 11 defines the term ‘persons’. It is an inclusive definition and includes Company or Association or body of persons, whether incorporated or not. Therefore, in other words, the term ‘person’ includes natural as well as juristic persons. The expression ‘within India’ in Section 2 indicates intra territorial operation of the Code. Supreme Court in Mubarik Ali Ahmad v. State of Bombay, AIR 1957 SC 857
held that the basis of jurisdiction under Section 2 is the place where the crime is committed. Corporal presence of offender is immaterial. If all the ingredients of the offence take place within municipal limits of a country then the accused will be liable even he was physically absent at the time of commission of offence.
Any person who commits the offence from outside India but effected upon the territory of India will also be said to have committed the offence within the territory of India because the effect of the offence will be directly upon the territory of India. Personal presence of the accused in India is not necessary at the time of commission of offence.
Jurisdiction over territorial Sea
Territorial sea is that part of sea over which a country exercises authority. Indian territorial waters extend into sea to a distance of 12 nautical miles measured from appropriate baseline. In International law the generally accepted view is that States have complete sovereignty over territorial sea. Therefore, offences committed within this limit are considered to be offences committed within territory of India. It must be noted that territorial sovereignty does not extend to high seas, however the countries may enact legislations to extend their jurisdiction beyond territorial waters. Section 188-A of Code of Criminal Procedure extends the jurisdiction of Indian Courts to try offences committed in exclusive economic zone as described in Section 7 of Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zone
Act, 1976. In Republic of Italy v. Union of India, (2013) 4 SCC 721 (Italian Marines Case) Supreme Court held that Indian Penal Code and Code of Criminal Procedure duly extend to contiguous zone (24 nautical miles) of India.
Offences by Corporations
Supreme Court in Commr. v. Velliappa Textiles Ltd., (2003) 11 SCC 405 held that liability of corporation arises which the offence is committed in course of corporation’s business by the person in control of the affairs. In Sunil Bharti Mittal v. CBI, (2015) 4 SCC 609 Court clarified that there is no vicarious liability of the directors of the company unless the statute specifically provides so. Therefore, an individual who has perpetrated the commission of offence on behalf of company can be made an accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent.
Extra territorial operation of the Code
Sometimes, penal statutes may have extra-territorial operation. They may empower court to exercise jurisdiction over citizens of the State even though they have committed the crime beyond jurisdictional limits of the State concerned. Section 3 read with Section 4 deals with extra-territorial application of Indian
Penal Code i.e. when a person has committed a violation of the provisions of Indian Penal Code outside the territory of India, but will be punishable under Indian Penal Code. Provisions of these sections extend the jurisdiction of courts in India over citizens of India beyond the territorial limits of India.
Section 3 provides that an act constituting an offence in India shall also be an offence when committed outside India. If any person, liable under Indian law, does an act in a foreign country which is not an offence in that country but is an offence in India, he may be prosecuted in India. This section gives the jurisdiction to Indian courts to try any person for offences committed beyond India, as though it had been committed in India. Following conditions are to be fulfilled:-
Person should have committed an act outside India, which if committed in India would be punishable.
That person is liable under some Indian law to be tried in India for that offence.
Section 4 provides for extension of Code to extra-territorial offences. It provides that the provisions of this Code apply also to any offence committed by-
1. Any citizen of India in any place without and beyond India.
2..Any person on any ship or aircraft registered in India wherever it may be.
3.Any person in any place without and beyond India committing offence targeting a computer resource located in India.
For example, ‘A’ who is a citizen of India, commits a murder in Uganda. He can be tried and convicted of murder in any place in India in which he may be found. The object of Section 4 is to make provisions of the Code applicable to an Indian citizen who commits an offence outside India and also to any non-Indian who commits an offence on any ship or aircraft registered in India or for committing
targeting a computer resource located in India.
An offence Section 4 extends the jurisdiction of the Code to extra-territorial offences, that is offences committed beyond the limits of India but the offender is found within the limits. In Jitender Panchal v. Narcotics Control Bureau, (2009) 3 SCC 57 the Supreme Court held that even if an accused has faced trial in a
foreign country for an offence arising out of same transaction, he may be tried and punished in India for an offence separate and distinct from previously charged offence in the foreign country, and the subsequent trial shall not be hit by prohibition against double jeopardy. The question at what place a victim can file a complaint against the accused if the offence has been committed outside India was decided by Supreme Court in Om Hemrajani v. State of U.P., (2005)
1 SCC 617. The court held that the victim can file a complaint about the said offence to any competent court in India in which he may find convenient. Convenience is of the victim and not of the accused. It is not the requirement that the victim shall state in the complaint as to which place the accused may be found. It is enough to allege that the accused may be found India.
Section 4 of the Indian Penal Code is almost similar to Section 188 of the Code of Criminal Procedure, which lays down that no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government. Language of Section 4 of Indian Penal Code and Section 188 of Code of Criminal Procedure plainly means that if at the time of commission of an offence, the person committing it is a citizen of India, then even if the offence is committed outside India he is subject to the jurisdiction of the courts in India. The rule enunciated in these sections is that qua citizen the jurisdiction of the court is not lost by reason of venue of the offence. In Central Bank of India v. Ram Narain, AIR 1955 SC 36 Supreme Court held that if a person at the time of committing offence is not citizen of India and acquires citizenship subsequently then the trial in India is illegal.
