INTRODUCTION

A crime or an offence can be described as an act which is prohibited by law and is so grave or serious in nature that it revolts against the moral sentiments of the society. Precisely speaking, the gravity or seriousness attached to an offence distinguishes it from a civil wrong and makes the offender liable for punishment. The criminal liability of an offender is adjudged on the touchstone of the legal principle which is embodied in the latin maxim "actus non facit reum nisi mens sit rea"; the maxim implies that an act of a person does not make him guilty unless he does that act with a guilty mind.

ACTUS NON FACIT REUM NISI MENS SIT REA

The Latin maxim "actus non facit reum nisi mens sit rea" embodies the foundational principle of criminal law and literally means that "an act does not make one guilty unless the mind is also legally blameworthy". In other words, an act to be criminal must be done with a legally blameworthy or guilty mind.

This maxim forms the very basis and foundation of criminal law and establishes both, a guilty act (actus reus) as well as a guilty mind (mens rea), as the necessary elements of a crime. It guards against wrongful punishment of an innocent person and ensures the establishment of a fair and effective criminal justice delivery system.

Moreover, this maxim underscores the importance of mental state in determining culpability for criminal actions. In other words, it distinguishes a crime from civil injuries by making the guilty mind an essential ingredient of an offence.

In view of the maxim, "Mens Rea" and "Actus Reus" are the two essential elements of a crime. Besides "Mens Rea" and "Actus Reus", reference to two other indispensable elements of a crime is also necessary; they are namely: First, a human being who is under legal obligation to act in a particular way and is also a fit subject for infliction of punishment and second, an injury to another human being or to the society at large.

Therefore, the four essential elements of a crime are as under:

Offender: A human being who is under legal obligation to act in a particular way and is a fit subject for the infliction of the appropriate punishment by law.

Mens Rea: A legally blameworthy or guilty state of mind of the offender.

Actus Reus: An act or omission which is forbidden by law but is nevertheless done by the offender in furtherance of his mens rea.

Injury: An injury to another human being or to society at large by such an act of the offender. The injury means violation of a legal right and implies harm to another person or the society at large in body. mind, property or reputation.

Exceptions to the maxim "Actus Non Facit Reum Nisi Mens Sit Rea"

Absolute or Strict Liability Offences: In certain offences, the law does not require proof of mens rea for criminal liability but punishes the offender on a mere commission or omission of the guilty act. These offences are referred to as the offences imposing absolute or strict criminal liability. These offences are generally regulatory in nature and emphasise on compliance rather than on intent (eg. traffic violations, Statutory rape).

Public Welfare Offences: These offences are the species of absolute/ strict liability offences and are primarily concerned with the protection of public health, safety, or welfare (e.g. The Prevention of Food Adulteration Act, 1954; The Essential Commodities Act, 1955, various Pollution Control laws etc.).

MENS REA

"Mens Rea"represents the mental aspect of a crime. It is such mental state of the accused which is criminal in nature, ie. prohibited by criminal law. It covers a wide range of mental conditions, the presence of which attach criminality to the act or omission of the offender.

It is important to note that mens rea must coexist with Actus Reus" which represents the physical element of a crime. Therefore, a mere criminal intention, not followed by a criminal act/omission, does not constitute a crime.

It is important to note that BNS does not use the word "Mens Rea" in any one of its provisions. However, the essence of mens rea is reflected in almost every offence of BNS in one or the other form.

Depending upon the nature of a particular offence, BNS has incorporated the doctrine of mens rea in almost every offence by using the words such as "voluntarily", "intentionally", "knowingly", "with reason

to believe", "dishonestly", "fraudulently", "maliciously", "intentional cooperation" etc. The aforesaid words invariably indicate the legally blameworthy mental condition which is an essential ingredient of a particular. offence and is required to be present at the time of commission of such offence.

Intention: The highest degree of mens rea, where the person aims to bring about a particular consequence. Intent is a subjective state of mind that must accompany the acts of certain crimes to constitute a violation.

Knowledge: Awareness of certain facts or circumstances, leading to a conscious. decision to act or refrain from acting. It is a person's state of mind towards existent facts that he has personally observed or whose existence has been transmitted to him by others whose veracity he has no cause to dispute.

Recklessness: Conscious disregard of a substantial and unjustifiable risk. A person is said to be reckless when it comes to the consequences of his actions if he foresees the possibility of them happening but neither desires nor expects them to happen.

Negligence: Failure to be aware of a substantial and unjustifiable risk where such failure constitutes a deviation from the standard of care that a reasonable person would observe.

Case Laws Illustrating Mens Rea

State of Maharashtra v. M.H. George (1965), in this case M.H. George was caught smuggling gold into India without declaring it to customs authorities. The Supreme Court held that mens rea was not a necessary ingredient in this case because the relevant statute imposed strict liability. The act of smuggling gold itself was sufficient for conviction, irrespective of the intent or knowledge.

Kartar Singh v. State of Punjab (1994), in this case Kartar Singh was involved in acts of terrorism under the Terrorist and Disruptive Activities (Prevention) Act (TADA). The Supreme Court emphasised that mens rea is a fundamental principle of criminal jurisprudence. For conviction. under TADA, it must be proved that the accused had the intent or knowledge that their actions would result in terrorist acts.

State of Haryana v. Rajender Singh (1996), in this case Rajender Singh was accused of causing the death of a person by dangerous driving. The Supreme Court held that mens rea could be in the form of gross negligence. In this case, the accused's recklessness in driving constituted sufficient mens rea for a conviction of causing death by negligence.

Emperor v. Sardarkhan Jhaveri Khan (1927), in this case the accused was involved in the illegal transport of opium. The Bombay High Court held that mens rea was an essential ingredient for conviction under the Opium Act. It had to be proven that the accused had knowledge or intent regarding the illegal nature of the act.

Significance of Mens Rea

Distinguished Levels of Culpability: The principle of mens rea allows for proportionate punishment to the offender depending on the nature and degree of his state of mind.

Protection of Innocents: It ensures that individuals who inadvertently commit an act without criminal intent are not wrongfully punished.

Moral Blameworthiness: It reflects the moral blameworthiness of the accused, ensuring that punishment is justly meted out.

Principle of Mens Rea and Strict Liability

It is a universally accepted legal principle that mens rea is an essential ingredient of offences. However, the principle of mens rea has certain exceptions. This necessarily implies that mens rea is not an essential

ingredient of some offences and mere commission or omission of certain specified acts is made punishable in law.

Statutes imposing strict or absolute criminal liability do not require mens rea as an essential element of crime and constitute the exception to the principle of mens rea.

The principles of mens rea and strict liability form the bedrock of criminal law in India, each serving distinct purposes. Mens rea ensures that moral culpability is a cornerstone of criminal responsibility, aligning punishment with intent and awareness.

In contrast, strict liability addresses specific regulatory and public welfare concerns, streamlining the prosecution process by eliminating the need to prove mens rea. Both principles are integral to maintaining a balance between individual rights and societal interests in the Indian legal system.

Characteristics of Strict/Absolute Criminal Liability

No Need for Mens Rea: Strict or absolute criminal liability does not require proof of mens rea. The mere commission or omission of the actus reus (guilty act) is sufficient for criminal liability. Therefore, it can be concluded that strict liability prioritises public protection and regulatory compliance, often at the cost of individual intent.

Public Welfare Offences: These are the offences in respect of which the principle of absolute/ strict criminal liability is utilised for the protection of public health, safety, or welfare (e.g., The Prevention of Food Adulteration Act, 1954; The Essential Commodities Act, 1955, various Pollution Control laws etc.).

Statutory Interpretation: Often arises from specific statutes where the legislature has explicitly removed the requirement for mens rea.

Important Case Laws

State of Maharashtra v. M.H. George (1965)

Facts: In this case, M.H. George was charged under the Customs Act for smuggling gold into India without declaring it to customs authorities.

The prosecution argued that George was in possession of uncustomed goods, which constituted a strict liability offence under the Customs Act.

Legal Issue: The primary legal issue was whether the offence under the Customs Act required proof of mens rea (a guilty mind) or if it was an offence of strict liability, where the act itself (possession of uncustomed goods) was sufficient for conviction.

Court's Decision: The Supreme Court of India held that the offence under the Customs Act was one of strict liability. The court reasoned that the language and purpose of the Customs Act indicated that Parliament intended to impose strict liability for certain offences related to customs duties and regulations.

Strict Liability: The court emphasised that strict liability offences do not require proof of mens rea. The focus is on the act itself (actus reus), such as possession of uncustomed goods, rather than the intent or knowledge of the accused.

Legislative Intent: The court interpreted the Customs Act to reflect Parliament's intention to impose strict liability for offences related to customs duties and regulations. This interpretation was based on the language and objectives of the statute.

Public Policy: The court considered the public policy behind customs regulations, emphasising the importance of compliance and deterrence in maintaining fiscal discipline and preventing smuggling activities.

Brend v. Wood (1946)

The case involved a statutory offence where the defendant was charged under a regulation that made it an offence to have uncustomed goods (goods on which customs duty had not been paid) in his possession.

Legal Issue: The primary legal issue in Brend v. Wood was whether the statute under which the defendant was charged required proof of mens rea (guilty mind) or whether it imposed strict liability, meaning that the defendant could be convicted regardless of intent or knowledge.

Court's Decision:

Presumption of Mens Rea: The court reaffirmed the general principle that mens rea is a fundamental component of criminal liability. It emphasised that for someone to be convicted of a criminal offence, it is generally necessary to prove that they had a guilty mind, unless the statute creating the offence explicitly states otherwise.

Strict Liability: The court acknowledged that certain statutes impose strict liability for regulatory or public welfare offences, where proving mens rea is not required. However, this should be clearly indicated by the wording of the statute or be necessary due to the nature of the offence.

Interpretation of Statutes: When interpreting a statute, courts should look for explicit language or necessary implication that mens rea is not required. If the statute is silent or ambiguous, the presumption in favour of mens rea applies.

The court had to decide if the statute implicitly required mens rea or if it intended to create an offence of strict liability.

The court ultimately held that unless a statute explicitly or by necessary implication excludes mens rea, it is presumed that mens rea is required to establish criminal liability.

Nathulal v. State of Madhya Pradesh (1966)

Facts: Nathulal was charged with selling food grains without a licence, believing he had a valid licence.

Issue: Whether mens rea was required for conviction under the Essential Commodities Act.

Court's Decision: The Supreme Court of India acquitted Nathulal, emphasising that mens rea was a necessary element of the offence. This case reflects the influence of principles similar to those in Brend v. Wood, affirming the need for mens rea in criminal liability unless explicitly excluded by statute.

Sherras v. De Rutzen (1895)

Facts: In Sherras v. De Rutzen, the defendant, a publican (pub owner), was charged under a statute which made it an offence to serve alcohol to a police constable on duty.

The defendant served a drink to a police constable who was not wearing his armband, which indicated he was on duty. The defendant believed, reasonably, that the constable was off duty.

Legal Issue: The legal issue was whether the statute imposing the offence required proof of mens rea (a guilty mind) or if it was an offence of strict liability, meaning that the defendant could be convicted regardless of intent or knowledge.

Court's Decision: The court had to determine whether the offence under the statute required mens rea or if it was a strict liability offence. The court held that mens red was required and that the defendant could not be convicted if he had a reasonable belief that the constable was off duty.

Sherras v. De Rutzen is significant because it highlights the importance of mens rea in criminal law and establishes a strong presumption that mens rea is required for criminal liability unless a statute clearly indicates otherwise. This case serves as a leading authority on the interpretation of statutory offences and the necessity of mens rea in criminal law.

Subhash Shamrao Pachunde v. State of Maharashtra (2005)

Facts: Subhash Shamrao Pachunde was charged under Section 138 of the Negotiable Instruments Act, 1881, for dishonour of a cheque.

The complainant alleged that a cheque issued by Pachunde was dishonoured due to insufficient funds. Pachunde contended that he had issued the cheque as a security and not for repayment of any debt.

Legal Issue: The main legal issue was whether Pachunde could be held criminally liable under Section 138 of the Negotiable Instruments Act, which imposes strict liability for dishonour of cheques due to insufficient funds.

Court's Decision: The Supreme Court of India held that Section 138 of the Negotiable Instruments Act imposes strict liability on the drawer of a cheque in case of its dishonour due to insufficient funds or if it exceeds the amount arranged to be paid from that account. The court emphasised that under Section 138, the intent or knowledge of the drawer of the cheque about the insufficiency of funds is immaterial for establishing criminal liability.

• Strict Liability under Section 138: The court clarified that Section 138 of the Negotiable Instruments Act is a strict liability offence.

• Legislative Intent: The court interpreted Section 138 in line with its purpose to enhance the credibility of negotiable instruments in business transactions and ensure prompt payment.

• Public Interest: The court underscored the public interest in ensuring the efficacy of cheques as instruments of payment and deterrence against their misuse, which justifies the imposition of strict liability.

Difference between Actus rea and Mens rea

Aspect	Actus rea	Mens rea
Meaning	Latin for “guilty act” – it refers to the physical act or omission that constitutes a crime.	Latin for “guilty mind” – it refers to the mental state or intention behind the act.
Nature	It is the external or physical element of a crime.	It is the internal or psychological element of a crime.
Focus	Concerned with what the accused did – the conduct, the circumstances, and the result.	Concerned with what the accused was thinking or intending at the time of the act.
Example	A person physically hits someone with a stick – that is the actus reus.	The person intended to cause harm or knew the harm was likely – that is the mens rea.
Requirement in law	Without actus reus, there can be no crime, even if someone had bad intentions.	Without mens rea, most crimes (except strict liability offences) are not complete.
Presence without the other	If only actus reus is present, it could be a pure accident or mistake.	If only mens rea is present, it is mere thought or preparation, not punishable by itself.
Voluntariness	Must be voluntary to be considered criminal. Reflexes or spasms don’t count.	Must show awareness, intention, recklessness, or negligence – depending on the crime.
Forms	Commission (doing an act) -Omission (failing to act when legally obligated	- Intention - Knowledge - Recklessness - Negligence (in some offences)
Proved by	Usually proved through evidence of action, CCTV, witness statements, physical injury, etc.	Proved through circumstances, behavior, confession, or inference from the conduct.
illustrations	A driver runs over a pedestrian. The act of running them over is actus reus.	If the driver saw the pedestrian and still didn’t stop, that shows reckless mens rea.
Type of Component	It is a conduct-based component of crime.	It is a state-of-mind-based component of crime.
Relevance in Strict Liability	In strict liability offences (e.g., traffic violations), actus reus alone is enough.	Mens rea is not required in strict liability crimes.
Legal Importance	Helps identify what criminal act occurred.	Helps determine whether the person can be blamed for that act.
Key Legal Principle	“There can be no crime without an act.” (actus non facit reum nisi mens sit rea)	“There can be no crime without a guilty mind.”