January 23, 2022


Criminal law

“Crime is what society says is crime by establishing that an act is a violation of criminal law”

-Terence Morris


The law of crimes as old as the civilisation itself. The crime and the criminal in every society is looked with great hatred, but the study of the crimes and discovering the causes of crimes have remain the greatest attraction among the jurists of the jurisprudence. There always lies necessity of devising some ways and methods to curb such criminal tendencies among the section of the people living in the civilised society. The problem arises as to what acts should be forbidden, or what acts should be selected for punishment by the society or the State. The concept of the crime has been always been dependent on the public opinion.

As, H.J. Klare remarked in his book ‘Changing Concepts of Crime and its Treatment’ that, “Law is determined by the political process and accords with what most people recognise as the minimum standards prevailing. The definition of the criminal is also part of the process and the rejection of law by offenders is a form of protest of which they may be dimly aware”. Any deviation from the standards of behaviour fixed by the society is punished and such conduct doesn’t accord with the prescribed standard which is loosely known as crime.

Stephen in his book ‘General View of Criminal Law of England’ said that, “Crime is said to be an act which is both forbidden by law and against the moral sentiments if the society”. Murder, robbery, kidnapping, rape, rioting, counterfeiting of currency, involvement in terrorist organisations, etc. are the acts which the society doesn’t approve and that are termed as the crime. Societies which are the followers of the jihad and engage in the terrorist activities and other immoral acts doesn’t consider these as wrong ones and thus, don’t treat as crime. This classification can only be valid in the societies where civilised people live and proper law is laid down on the humanitarian grounds by the application of sound principles of natural justice and the law of the land. Thus, society plays a very important role in the categorisation of the law and of the crimes which should be followed at all costs but with the rider of application of the sound mind.

But, sometimes, in genuine in civil acts too, the definition changes according to the land. For example, in case of the personal law, people of every religion wants to follow the law for their marriages, divorce, etc. according to their own customs. But, sometimes the law enforcement agencies are successful in curbing down some wrong practices prevailing in the society and sometimes not. Take an illustration of the Muslim Law and the Hindu Law. In case of Hindu customs, in the ancient times, the immoral practises involved the practise of Sati, Johar, widow non- marriage, dowry etc. In case of Muslim Law, the practise deals with the Polygamy, temporary marriage, etc. But the Britishers tried too much of the extent to curb it all and are successful to some extent. Because, every time, the law can’t be enforced on the basis of the fear of the punishment and for its permanent sanction, it need acceptance among the member of the society.


Bentham defined Crime as, “offences are whatever the legislature has banned/prohibited for good or for bad reasons. If the question relates to a theoretical research for the discovery of the best possible laws according to the principles of utility, we give the name of offence to every act which we think ought to be prohibited by reasons of some evil which it produces or tends to produce.” Blackstone in his commentaries on the Law of the England has defined Crime as “an act committed or omitted in violation of a Public Law either forbidding or commanding it.” Stephen has suggested a modification in the Blackstone’s version of definition on Crime and states that, “A crime is a violation of a right, considered in reference to the evil tendency of such violation as regards the community at large.” Austin posits that, “A wrong which is pursued at the discretion of the injured party and his representatives is a civil injury; a wrong which is pursued by the sovereign or his subordinates is a crime.”


The Chief elements necessary to constitute a crime are:

  • A human being under a legal obligation to act in a particular way and a fit subject for the infliction of appropriate punishment;
  • An evil intent on the part of such a human being;
  • An act committed or omitted in, furtherance of such an intent;
  • An injury to another human being or to society at large by such act

The act must have been done by a human being before it can constitute a crime punishable at law. In the ancient legal institutions of punishment being inflicted on animals or inanimate objects for injury caused by them. It changed gradually with the mature thinking of the people. The right of punishment was taken away from the individuals and was transferred to the society. The society undertook to do everything for the individual what he far so far doing for himself. It is a matter of pride that the ancient Hindu criminal jurisprudence did not provide for the trial and punishment of animals and inanimate objects.

They presumed that the offender must be a human being who must have developed maturity of understanding to know the nature of the act of which he is held liable. Therefore, only a human being is under an obligation and capable of being punished can be the proper subject of criminal law. Corporations and other artificial persons known to modern jurisprudence are not capable of being punished, for appropriate punishment means both pecuniary and bodily punishment and the latter cannot be inflicted upon artificial persons.


It is one of the principles of the English criminal law that a crime is not committed if the mind of person doing the act in question is innocent. It is said that actus non facit reum, nisi mens sit rea (the intent and act must both concur to constitute the crime). Although, prima facie and as a general rule, there must be a mind at fault before there can be a crime, it is not an inflexible rule, and a statute may relate to such a subject-matter an may be so framed as to make an act criminal whether there has been any intention to break the law or otherwise to do wrong or not.

In Sherras vs. De Rutzen (1895), the doctrine followed by court states that mens rea is an essential ingredient of every offence, except in three cases:

  • Cases not criminal in any real sense but which in the public interest are prohibited under a penalty, e.g. Revenue acts
  • Public Nuisance
  • Cases criminal in form but which are really only a summary mode of enforcing a civil right.

The maxim actus non facit reum, nisi mens sit rea has, however, no application to the offences under the penal code in its purely technical sense, because the definitions of various offences contain expressly propositions as to the state of mind of the accused. The definitions state whether the act must have been done “intentionally”, “voluntarily”, “knowingly”, “dishonestly”, or “fraudulently”, or the like. Every ingredient of the offence is stated in the definitions. So, mens rea will mean one thing or another according to the particular offence. The guilty mind may thus be a fraudulent mind, dishonest mind, negligent or rash mind. Every offence under the code virtually imports the idea of criminal intent or mens rea in some form or other. If, in any case, the Indian legislature has omitted to prescribe a particular mental condition, the presumption is that the omission is intentional. In such, the doctrine of mens rea is not applicable.


Where knowledge of fact is an essential ingredient of offence, it must be distinctly proved. There are certain offences in the penal code where the accused who commits those offences is punished irrespective of the fact whether he had knowledge or not. Where a particular act is forbidden, the question of knowledge become immaterial.


The law presumes innocence until guilt is proved. The onus of proving everything essential to the establishment of the charge against the accused lies upon the prosecution. Every man is to be regarded as legally innocent until the contrary be proved. Criminality is therefore, never to be presumed. The evidence must be such as to exclude, to a moral certainly, every reasonable doubt regarding the guilt of the accused. If there be any reasonable doubt about the guilt of the accused, he is entitled as of right to be acquitted.

The proof of guilt must depend upon positive affirmation, and can’t be inferred from mere absence of explanation. The prosecution can’t be permitted to take advantage of the weakness of the defence case. The case for the prosecution has to be proved beyond all shadows of the defence case de hors this weakness. In the case of Brij Bhushan Singh vs. Emp. (1946), the Privy Council has affirmed that suspicion however strong, is not proof.


“Criminal Intention” simply means the purpose or the design of doing an act forbidden by the criminal law without just cause or excuse. The intention of the accused to produce a particular consequence shows his intention to do that act. An act is intentional if it exists in idea before it exits in fact, the idea realising itself in the fact because of the desire by which it is accompanied. The word “Intent” doesn’t used as synonym for “motive”. As a general rule, every san man is presumed to intend the necessary or the natural and probably consequences of his act, and this presumption of law will prevail unless from a consideration of all the evidence the court entertains a reasonable doubt whether such intention existed.


If a man knows that a certain consequence will follows from his act, it must be presumed in law that he intended that consequence to take place although he may have had some quiet different ulterior motive for performing the act. The motive for the act is not a sufficient test to determine its criminal character. By motive is meant anything that can contribute to, give birth to, or even to prevent, any kind of action. An act which is unlawful can’t in law, be excused on the ground that it was committed from a good motive.


The maxim ignorantia juris non excusat, ignorance of law excuses no one, in its application to the criminal offences, admits of no exception, not even in the case of a foreigner who can’t reasonably be supposed in fact to know the law of the land. It is indeed a legal fiction to suppose that everyone knows the law of the land but it a fiction which is so basic that without it the administration of criminal justice would come to a standstill.


Actus Reus is the Latin term used to describe a criminal act. Actus Reus is commonly defined as a criminal act that was the result of voluntary bodily movement. This describes a physical activity that harms another person or damages property. Anything from a physical assault or murder to the destruction of public property would qualify as an actus Reus.

The exception to actus Reus is when the criminal actions are involuntary. This includes acts that occur as a result of a spasm or convulsion, any movement made while a person is asleep or unconscious, or activities participated in while an individual is under a hypnotic trance. In these scenarios a criminal deed may be done, but it is not intentional and the responsible person will not even know about it until after the fact.


The Indian Penal Code, like other penal laws, recognises that a pre-planned crime invariably goes through the four successive stages, namely:

  • Intention to commit an offence
  • Preparation to commit it
  • Attempt to commit it
  • The commission of the offence

The IPC exempts the first stage from criminal liability. It doesn’t attach any culpability to a mere mental determination or desire to commit a crime, howsoever evil it may be. A mere intention to commit an offence, not followed by an act, doesn’t constitute an offence under the Penal Code. However, the IPC punishes preparations to commit a few serious offences which are as follows:

  • Preparations made for waging war against the government of India (Section 122 IPC)
  • Preparations made for committing depredations on territories of any power in alliance or at peace with the Government of India (Section 126 IPC)
  • Making or selling or being in possession of instruments for counterfeiting coins or government stamps (Section 233-235 and 257)
  • Possessing counterfeit coins, government stamps, false weight, or measures (Section 242, 243, 259 and 266)
  • Preparations made for committing dacoity (Section 399)

Criminalisation of these preparations is plausibly justified on the need to nip grave offences in the bud and thereby to arrest criminality at incipient stages only. The reason not punishing the first two stages is that they are considered too remote to the completion of the intended crime. They are perceived as harmless acts.

As had been stated in the case of Kailash Chandra Pareek vs. State of Assam (2003), that an attempt to commit an offence is made punishable as it takes the perpetrator very close to the contemplated crime. In the case of Sagayam vs. State of Karnatka (2000), the Supreme Court held that if the attempt succeeds, the culprit has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. In the case of Koppula Venkat Rao vs. State of Andhra Pradesh (2004), the Supreme Court said that it doesn’t take a mere ‘will to commit an offence’ for the deed, unless there is some external act that exhibits some progress in the direction of, or towards maturing and effecting, the contemplated crime. In the case of State of Madhya Pradesh vs. Babulal (1960), the court said that there is a greater degree of determination in attempt as compared with preparation.


  • The Indian Penal Code, 1860 – K.D. Gaur, Universal Law Publishing Co. Pvt. Ltd, 2016
  • The Indian Penal Code, 1860 – Rattan Lal and Dhiraj Lal, Lexis Nexis Butterworths Wadhwa, 2017
  • Indian Penal Code, 1860 – S.N. Mishra, Central Law Publication Company, 2017
  • Essay on Indian Penal Code, 1860 – K.N. Chandrashekhar, Pillai, Universal Law Publication, 2017

Author Details: Vaibhav Goyal (BA LLB Student, Panjab University)

Law Library LawBhoomi

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