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INTRODUCTION
proved more baffling through the centuries than the determination of precise
mental element or Mens Rea necessary for crime . Mens Rea or the mental
law. Criminal guilt would attach to a man for violations of criminal law.
However, the rule is not absolute and is subject to the limitations indicated in
the Latin maxim, actus non facit reum. nisi mens sit rea. “There can be no
crime, large or small, without an evil mind,” says Bishop. “It is therefore a
principle of our legal system, as probably it is of every other, that the essence
of an offence is the wrongful intent, without which it can not exist13”.2 That is to
proved that a certain event, or state of affairs, which is forbidden by law, has
been caused by his conduct, and that the conduct was accompanied be a legally
1 The term Mens Rea is used throughout' this paper as signifying the mental element necessary to
convict for any crime. The discussion is restricted to crimes not based upon negligence.
2 Sayre, Mens Rea, 45 Harv. L. Rev. 974 (1932).
3 Bishop, Criminal Law, 287 (9th ed. 1930).
4 R. Balakrishna Pillai v. State of Kerala, AIR 2004 SC1012=2003 AIR SCW 6646 = (2003)9 SCC
700; K.D. Gaur, Criminal Law - Cases and Material, 3rd ed., p. 23; Smith & Hogan, Criminal Law,
6th ed., p. 31 ; Salmond, Juriprudence (3rd ed. 1910) 127.
An Introduction and Historical Perspective of Mens Rea 2
law.
(b) Plea of Insanity : The mentally disordered state of mind may be looked
(d) The fourth meaning concerns the particular state of mind required11 in
crime.
5 Pratap Singh v. State ofJharkhand, AIR 2005 SC 2731, “mind at that age could not be said to be
mature for imputing mens rea as in the case of an adult” ; Also see Umesh Chandra v. State of
Rajasthan, AIR 1982 SC 1057.
6 Section 82,The Indian Penal Code, 1860.
7 Section 83, The Indian Penal Code, 1860.
8 TN. Lakshmaiah v. State ofKarnataka, AIR 2001 SC 3828 ; 2001 AIR SCW 4271 ; “Where he lacks
mens rea-even through insanity - he is entitled to an acquittal” J. R. Spencer, Case and Comments:
2000, The Cambridge Law Journal, p. 10.
9 Section 84, The Indian Penal Code, 1860; Section 2(1) of the Trial of Lunatics Act, 1883 and Section
5 of Criminal Procedure (Insanity) Act 1964 under the English Law ; Sheralli Waii Mohammed v.
State ofMaharashtra, AIR 1972 SC 2443.
10 The principal embodied in the chapter, for General Exceptions is based upon the maxim, “actus non
facit reum nisi mens sit red' i.e. an act is not criminal unless there is criminal intent.
11 J. F. Stephen, History of Criminal Law of England, Vol. II, 1883, p. 94-95 “The truth is that the
maxim about mens rea means no more than the definition of all or nearly all crimes contains not only
an outward and visible element, but a mental element, varying according to the different nature of
different crimes. Thus in reference to murder, the mens rea is any state of mind which comes within
the description of malice aforethought. In reference to theft the mens rea is an intention to deprive
the owner permanently .................... Hence the only means of arriving at a full comprehension of
expression mens rea is by a detailed examination of the definitions of particular crimes, and
therefore the expression itself is unmeaning.”
An Introduction and Historical Perspective of Mens Rea 3
The foundation for mens rea is that the accused can control his
criminal law.”
12 United States v. Currans 290, F. 2 d 751 (3 rd Cir. 1961), (United'States Court of Appeals).
An Introduction and Historical Perspective of Mens Rea 4
harmful consequences of his behavior is more culpable than someone who act
impose the stigma of criminal conviction on someone who was not morally
blame worthy14.
various crimes (basing on different meaning of mens rea) into four classes :
13 H. Parker (1962) Sup. Ct. Rev. of England 107, 109. The Accused will not be deterred from
behaving in like fashion again; other will not be deterred.
14 Michael Jefferson, Criminal Law, 96.
15 Nicola Lacey, State Punishment: Political Principles and Community Value (1988) p.63.
An Introduction and Historical Perspective of Mens Rea 5
(2) Crime in which a particular intention is required (e. g., in English law
felony).20
in public streets).
(4) Crime in which the requirement of mens rea is reduced to a minimum (i.
e. abducting a girl under 16 from her parents, though the girl is believed
to be above 16).22
carefully defined so as to include in the definition the precise evil intent which
to it. If these definition are analysed they generally comprise the following
principle elements24: -
16 See twenty-ninth report of the Law Commission of India, February, 1966, pp.27-28
17 The grouping is based on that given in Stephen, Commentaries on the Law ofEngland, (1950) Vol.
IV p. 10-12
18 Stephen’s criticism of the expression “mens red’ will be found in his judgement in R. v. Tolson,
(1989) 23QBD. 168,185,189.
19 Knowledge can be added, vide R. v. Hudson, (1965) 2, W.L.R. 604, 609.
20 Vide Dobbs, (1770)2 East P.C. 513 discussed in Perkin’s Criminal Law (1967) P.672.
21 Negligence is a type of mens rea. For a contrary view, see Glanville Williams, Criminal law, 102
and 262.
22 R. v. Prince, (1875) L.R. 2 C.C.R. 154.
2> Shamshul Huda, Principles ofLaw of Crime in British India, p. 189.
24 R.C. Nigam, Law ofCrime in India Vol. I p.38.
An Introduction and Historical Perspective of Mens Rea 6
added25, viz:-
(ii) An evil intent or mens rea on the part of such a human being is
etc.
intent.
The above two elements, namely, the human being that is, the wrong
doer and mens rea on his part do not go to constitute a crime . Criminal law
does not punish a mere intent. The reason was that the courts were not
possessed of facilities, for investigating the working of a man’s mind and were
knowledge that the intention of a man will not be probed for the devil does not
Mens rea or the mental element in crime is one of the most important
concepts of substantive criminal law28. Lord Halsbury has once said29, the
authority for it. “It can be equally said that the more fundamental a concept in
law, the more difficult it is to explain its exact scope and application. So also,
in the words of Dr. Glanville Williams, the concept of mens rea is “the
kindergarten part of the criminal law..... To define mens rea, and the different
What is quite clear about the traditional meaning of “mens rea' from its
Stephen in his writing could not accept the view that crime implied
immorality. Thus, he started his inquiry on the premise: “actus non facit
reum, nisi mens sit rea .... is frequently though ignorantly supposed to mean
that there can not be such a thing a legal guilt where there is no moral guilt,
Stephen maintained that actus non facit reum,nisi mens sit rea implies
wrongly that “no act is crime which is done from laudable motives, in other
naturally suggests that, apart from all particular definitions of crime, such thing
implication involved in every crime. This is obviously not the case, for the
30 Dr. Glanville Williams, The Mental Element in Crime, p 9 (1927) United States v. Currens 290. F.
ed. 751 (3 rd Cir. 1961). United States Court of Appeals).
31 Infra.
j2 Stephen, A History ofCriminal Law ofEngland, pp. 94-95, (1883).
33 (1889), 23 Q. B. 168, 185, 186, 189.
An Introduction and Historical Perspective of Mens Rea 9
crime in such a way as to make the existence of any state of mind immaterial”.
states of mind by one name34”. “There is no one such state of mind ... The
truth is that the maxim about ‘ mens rea' means no more than that the definition
of all or nearly all crimes contains not only an outward and visible element,
running alike through all the cases. A mens rea does not mean a single precise
state of mind which must be proved as a prerequisite for all Criminality. Mens
precise state of mind common to all crime.... The old conception of mens rea
must be discarded, and in its place must be substituted the new conception of
mantes read'.
TO
meaning of mens rea at present day”. He wrote: “In old cases, mens rea did
involve moral blame, and did mean a guilty mind....”. As regards modem
Justice Devlin has stated the view very aptly: “Mens rea consists of two
elements. It consists first of all of the intent to do an act, and secondly of the
Dr. Glanville Williams states41, “Mens rea refers to the mental element
required for many crimes. It must not be read in its literal senses requiring
accused to feel morally guilty. Smith and Hogan42 provide a working definition
of mens rea.
the offence together with any ulterior intent which the definition of the crime
requires.”
There are other definitions also. According to the Lord Simon43, “Mens
rea is.... the state of mind stigmatized as wrongful by the criminal law which,
offence”.
S.H. Kadish44 stated: “Mens rea refers only to the mental state which is
required by the definition of the offence to accompany the act which produces
what the mens rea required for each crime is, for it varies from crime to crime
just as the actus reus varies from crime to crime. Its Meaning in each crime
crime”46.
prerequisite for all crime. Mens rea takes on different colors in different
surroundings. What is an evil intent for one kind of offence may not be so for
another kind47. For instance, in the case of murder, it is the intent to cause
death; in the case of theft, an intention to steal; in the case of rape, an intention
to have forcible sexual intercourse with a woman without her consent; in the
case of receiving stolen goods, knowledge that good were stolen; and in the
negligence , which are often used to indicate the different possible mental
INTENTION
The word ‘intention’ denotes the mental attitudes of a man who has
resolved to bring about a certain result if can possibly do so. He shapes his line
activity and summoned into action for the deliberate purpose of being directed
towards a particular and specified object and which the human mind conceives
and perceives before itself50, and represents that state of mind of a person in
which he not only foresees but also desires the possible consequences of his
conduct51.
Salmond Explains:
An act is intentional if, and in so for as, it exists in fact, the idea
defines it, “being aware that it will occur in the ordinary course of
While the criminal law takes into account mens rea, as a general rule it
intention. It is often easy to state that the accused’s ultimate purpose was the
motive58.
striking intend to cause him pain. Causing pain may be to satisfy our revenge
superior strength of arms. Each one of these interest is called the motive. It is
this reason why we do the act. Motive is traceable directly or indirectly through
traditional lines60, and if they did not always exclude motive from, and
associates intention with, mensrea, it was because negligence, the mentes reae
and ulterior intentions. The former “relates to the wrongful act itself; the
latter....relates to the objects....for the sake of which the act is done”. For
his ulterior intention is to buy food or pay a debt. He applied the marginal
meaning of “motive” to the latter by saying; “The ulterior intent is the motive
of the act”. The immediate intent is “coincident with the wrongful act itself; the
ulterior intent or motive is that part of the total intent which lies outside the
boundaries of the wrongful act.” Thus, for Salmond, “ ulterior intent” and
writer on criminal law agreed:, “In reality motive is the species of intent
concluded that, “in many cases whether a crime has been committed will
feeling which prompts the operation of the will, the ulterior object of the
person willing, e.g., if a person kills another, the intention directs the act which
causes death, the motive is the object which the person had in view, e.g. the
while motive corresponds to an ulterior and which is the root of the intention .
/
It is clear that the proof of the existence of motive is not necessary for
conviction. Criminal law takes into consideration only the man’s intention and
consisting of desire that certain consequence shall follow from the party’s
physical act or omission, motive is the ulterior intention -the intention with
which an intentional act is done or more clearly the intention with which an
the accused admits to having a motive consistent with the elements of foresight
and desire, this will add to the level of probability that the actual outcome was
intended (it makes the prosecution case more credible). But if there is clear
evidence that the accused had a different motive, this may decrease the
probability that he or she desired the actual outcome. In such a situation, the
motive may become subjective evidence that the accused did not intend, but
was reckless or wilfully blind. But, motive cannot be a defence. Say for
of an actus reus, i.e. entry without consent and damage to property, and a mens
rea, i.e. intention to enter and cause the damage. That the accused might have
had a clearly articulated political motive to protest such testing does not affect
the trial when the court considers what punishment, if any, it would be
accused.
KNOWLEDGE
though he may not intent to bring them about. To believe a thing is to assent to
for a sale a valuable gold ornament and offers it to you for one tenth of the real
price. He comes to you at night under suspicious circumstances. Here you may
not know that the article is stolen, but you have reason to believe that it is
stolen. Thus belief is some what weaker than knowledge, but a well-grounded
belief that certain consequence will follow a certain act is ordinarily as good as
knowledge.
believe a thing if he has sufficient cause to believe that thing, but not other
wise.” “knowledge”, says lock, “is the highest degree of the speculative
direct appeal to his senses, whereas ‘reason to believe’ means sufficient cause
sand the acts of the person. Every man is supposed to intend the natural
76
The Indian Penal Code, 1860.
An Introduction and Historical Perspective of Mens Rea 20
aware of the consequences, though he may not intend to bring them about But
in many cases intention and knowledge merge into each other and mean the
same thing more or less, and intention can be presumed from knowledge. The
demarcating line between knowledge and intention is no doubt thin but it is not
NEGLIGENCE
reasonable man would have taken under the particular circumstances of the
the definition of the offence . It means the absence of such care as it is legal
duty to use. It is the state of mind of a man, who pursues a course of conduct
In a civil -action for damages for the injuiy caused by the negligence of
other hand, the liability of the accused to punishment depends upon the
existence of mens rea. Negligence, in the law of crimes, unlike in the case of
QA
the law of torts, is not the basis of liabilities in general . Under the Indian
Penal Code only a few negligent acts have been made penal, when they affect
Q1
the safety of the public, such as rash driving or riding on the public road, rash
In all these are thirteen sections which deal with cases of criminal
negligence85.
negligence does not indicate a specific attitude of mind, but state a matter of
fact, which may be the result of either intentional or negligent act. A, a man
who knows that the brakes or wheels of his scooter are defective, neglect to
80 Jacob Mathew v. Sate ofPunjab, AIR 2005 SC3180, “The jurisprudential concept of negligence
differs in civil and criminal law. What may be negligence in civil law may not necessarily be
negligence in criminal law. For negligence to amount to an offence, the element of mens rea must
be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be
much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher
degree may provide a ground for action in civil law but cannot form the basis for prosecution.”
81 Section 279, The Indian Penal Code,l 860.
82 Section 280,The Indian Penal Code,1860.
Sj Section 283, The Indian Penal Code,1860.
84 Section 279,280, 283,284,285; 286, 287, 288,289, 304A, 336, 337, and 338
85 Supra note 73.
86 Ratan Lai, Law of Crimes, 20th Edn. (1961), p.798.
An Introduction and Historical Perspective of Mens Rea 22
have them set right, and thereby caused harm not by his negligence, but by his
subjective evidence that the particular accused neither foresaw nor desired the
But a reasonable person with the same abilities and skills as the accused would
have foreseen and taken precautions to prevent the loss and damage being
sustained. Only a small percentage of offences are defined with this mens rea
recklessness and, faced with the need to establish recklessness as the default
mens rea for guilt, those practising in most legal systems rely heavily on
recklessness.
RECKLESSNESS
Intention cannot exist without foresight, but foresight can exist without
OQ
intention . For a man may foresee the possible or even probable consequences
of his conduct and yet not desire them to occur; nonetheless if the risk of
bringing about the unwished result90. So, recklessness is the state of mind of a
person, who foresees the possible consequences of his conduct, but acts
probability that it will occur, but does not desire it, nor foresees it as certain. It
may be that the doer is quiet indifferent to the consequences or that he does not
care what happens. In all such cases the doer is said to be advertently
obvious risk.”
In such cases, there is clear subjective evidence that the accused foresaw
but did not desire the particular outcome. When the accused failed to stop the
given behaviour, he took the risk of causing the given loss or damage. There is
course of the conduct, the accused foresees that he may be putting another at
91 K.D. Gaur, Cases and Materials on criminal law, 2nd edn. (1985) p.36.
92 Hudstonv. Viney(\92\)\ ch. 98, 104.
9j Supra at p.79.
An Introduction and Historical Perspective of Mens Rea 24
proceed, the accused actually intends the other to be exposed to the risk of that
injury. The greater the probability of that risk maturing into the foreseen injury,
Foresight of consequences
As a general rule, the accused must have had adequate control of his
was not fully voluntary and, unless this was due to his fault, it would be unjust
to punish him.
“natural” and probable” consequences means no more than this, that if in the
which therefore must proved unless the defence can abolish it94.
particular conduct of the wrong doer which in his opinion is bound to result
from his deliberate action towards that end. To intend is to have in mind a
fixed purpose to reach a desired objective and the intending person not only
foresees but also desires the possible consequences of his conduct or willed
follow from the conduct of a person. This presumption will prevail unless
from the consideration of all the evidence the court entertains a reasonable
doubt whether such intention existed or not. For instance if a man throws a boy
from a high tower or cuts off his head it is obvious that he desired the victim’s
death and foresaw it. Similarly if a man abandons his two months old child in a
forest who ultimately dies, it is apparent that the consequences were known to
him. In all such cases the man is said to have intended the desired act.
The Latin words of the maxim95 should be carefully read96: the word
reum is an adjective which does not qualify the noun acts but does qualify the
legally guilty, punishable as criminal (his deed does not make a man
)
punishable unless....etc); on the other hand the word rea does qualify the noun
mens but not in same subjective sense (hence the grammatical clumsiness of
the whole maxim, which nevertheless has a telling aphoristic quality, for it
95 Which has been judicially described as “uncouth” : per Cave J. in R. v. ToIson23 Q.B.D. 168.
96 Russel On Crime,11th Edn. (1958) p.22.
97 Ibid
An Introduction and Historical Perspective of Mens Rea 26
signifies legally blame worthy i.e., attitude of mind which the law prohibits).
The noun actus is of full generic import in the maxim which could be slightly
enlarged and paraphrased as “what-ever the deed a man may have done, it can
not make him criminally punishable unless his doing of it was actuated by a
elements which is also known as actus reus, and (b) the mental element,
manifested by the wrongful act committed by the accused. But the wrongful
act done by the accused in all cases is not punished. These are cases, where this
by me against my will is not my act. This maxim also supports mens rea. If the
act has been done by me against my will, it will not be my deliberate act or
There are two conditions to the fulfilled before penal responsibility can
rightly be imposed..., says Salmond . One “is the doing of some act by the
person to be held liable.... [the other] is the mens rea or guilty mind with which
the act is done. It is not enough that a man has done some act, which on
account of its mischievous result the law prohibits; before the law can justly
punish the act, an enquiry must be made into the mental attitude of the mind of
the doer. The intent and the act must both concur to constitute the crime".
and mens rea, its mental aspect100, which must be criminal and co-operate with
the first101. Actus reus has been defined “as such result of human conduct as
law seeks to prevent102. “Prof. Sayre observes “It is your state of mind which
gives meaning to your act, and a crime is not committed unless the intent to
injure (Nocendi Voluntas) intervene, nor is theft committed except with the
intent to steal”103.
offence104 .The first systematic105 treatment was provided by Sir Mathew Hale
in his book “History ofPleas of the Crown” who stated “where there is no will
to commit an offence, there can be no just reason to incur the penalty106. Mere
actus reus ceases to be criminal because, in so far as it lacks mens rea, it ceases
to be the act of the individual and is put more or less on a par with accident or
nature107.
neither can it induce any guilt; the concurrence of the will, when it has its
choice either to do or to avoid the fact in question, being the only thing that
complete crime cognisable by human laws, there must be both a will and an
act.... as a vitious will without a vitious act is on civil crime, so, on the other
constitute a crime against human laws, there must be, first a vitious will; and
analysis, be divided into two elements, actus reus and mens rea. Mens rea is to
be found in the mind of the accused. It follows that actus reus includes all the
elements in the definition of crime except those which relates to the accused’s
state of mind and is not merely an “act” in the ordinary, popular usage of the
term. It is made up not only of the accused conduct and its consequences, but
Actus reus has been defined as such result of human conduct as the law
seeks to prevent. The expression “conduct” initially covered acts and inclusion
covers both acts and omissions a law seeks to prevent*111.* According to Dr.
Glanville Williams, “the view that actus reus means all the ingredients of the
108 Commentaries on the Laws in England in Four Books By Sir William Blackstone, Vol. IV, 18 Edn.
By Thomas lee pp. 20-21 (1829).
109 Smith & Hogan, Criminal Law, 2nd Edn. 1969. p.28.
110 R. v. Senior{\m) 1 Q.B. 283.
111 Supra note 96 p. 20.
An Introduction and Historical Perspective of Mens Rea 29
crime is not only the simplest and clearest but the one that gives the most
in
satisfactory result”
meaning of the actus reus can be conveniently explained and illustrated by the
Parker, C.J. and James J. “for an assault to be committed both the element of
actus reus and mens rea must be present at the same time. The “actus reus” is
the action causing the effect on the victim’s mind. The mens rea is the
involuntary movements which are the consequences of certain diseases are not
acts.”
contraction and something more. A spasm is not an act. The contraction of the
117
Russel says , “There are five main points in the totality of criminal
liability:
(i) Human action or abstention or abstention from action (which for the
(iii) The result of this conduct in these specified circumstances. These first
The intent and the act must both concur to constitute the crime. The
caused the actus reus of the crime with which he is charged, with the mens rea
A young child learns very early in life to plead "I did not mean to..."may
Deodand
animals and even to inanimate objects; animals and in animate objects were
tried, convicted and sentenced119. Mr. Oliver Wendell Holmes, Jr. (Late Justice
of the Supreme Court of the United State ) in his "The common laW' has
remember later, "If an ox gore a man or a woman, that they die :than the ox
shall be surely stoned, and his flash shall not be eaten ;but the owner of the ox
to use him as he pleased. If a tree fell upon a man or if a man fell from the tree,
the tree was condemned. If he drowned in a well, the well was to be filled up.
Early law know no distinction between civil and criminal wrongs .In the
absence of a legal remedy injured or his kin might avenge the wrong; and the
act of vengeance might itself in turn be avenged. The law's main function was
Tracing the growth and development of the notion of mens rea from
very early law to this day, it can be said that the idea of guilty mind in early
primitive society was never of any application. It is the view of historian that in
early Germanic and Anglo-Sexon law the idea of criminal intent never
prevailed. A man was 'prima facid answerable for all the consequences of
which it can not exist". The basis of this principle is in the maxim,actus non
Mens rea is an abbreviation125 of "actus non facit reum, nisi mens sit
rea'' (the intent and act must both concur to constitute the crime.)
Law in its earliest days tries to make man answerable for all the ills of
121
F. Jacabs, Criminal Responsibility (1971), pp 13-14.
122
B.S. Sinha, Principles ofCriminal Law 2nd Edn. (1979) p.59.
123
Bishop, Criminal Law, 9th Edn. p. 287.
124
Supra.
125
L.V.Ganatra and V.B. Ganatra,/? Crime =Actus Reus + Mens Rea 1973 Guj LR 13.
126
Pollock and Maitland, History ofEnglish Law, p. 470.
An Introduction and Historical Perspective of Mens Rea 33
“In early law the liability was absolute . The doer of the
as master....”
recognising law prior to the 12th century , a criminal intent was not
But because the old records failed to set forth a mens rea as the general
requisite of criminality one must not reach the conclusion that even in very
early times the mental element was entirely disregarded. The chief line of
Sayre further observes that the intent of the defendent seems to have
been a material factor, even in the earliest times in determining the extent of
Until the 12^ century although the modern notion of mens rea was non
existent but criminal intent was not entirely disregarded in some offences
Dolus and Culpa influenced the English law. Common law, which
emphasised moral guilt , was also influencing the English courts. For
Bracton wrote:
"We must consider with what mind {amino) or with that intent
determined accordingly what action should follow and what punishment. For
take away the will and every act will be indifferent, because your state of mind
gives meaning to your act and a crime is not committed unless the intent to
intent to steal".
Of homicide he wrote :
In the 13^ century if a felony was committed, than the guilt was
according to the intent," or "the will may be taken for the deed." By the reign
of Edward III, (AD 1327-77) coercion was a defence in certain cases of treason;
and it had become settled that in order to hold the owner of an animal criminal
liable for the injuries done to it, his knowledge of its ferocity must be
1 TT
shown . Self defence was like wise becoming recognised as a regular
Holmes in his " The Common Law135" observes, "It is commonly known
by passion that a wrong has been done. It can hardly go very far beyond the
stumbled over and being kicked." Whether for this cause or another, " the early
wrongs."
136
Roscoe Pound has observed :
During the 14^ and 15^ centuries the notion that mens rea is
evidence to the contrary also137. In 1467 Catesby put the case that" if I cut my
tree and the boughs fall on a man and kill him, I shall not be attained of felony
for the cutting was permissible and the falling was against my will." To which
Fairfax replied:" It was not felony, for felony is of malice aforethought and
During the 16^ century it was settled that if there is criminal intent,
in Hales v. PatiP9 :
the act is the only point which the law regards; for until
In other words, this observation indicates that criminal law does not
interfere for moral blameworthiness. On the other hand, if the act was without
where a man killed an old house- mate thinking of her to be a thief under
Sir Edward Coke's (1552-1633) Institutes are one of the most important
works of criminal law in his 3r^ institute (1641,4,107) occurs the maxim "actus
non facit reum, nisi mens sitrea" By Coke's time the maxim was apparently
By the second half of the 17^ century, it was firmly established that to
constitute a crime, an evil intent was necessary as the act itself142. The first
systematic treatment of mens rea was provided by Sir Mathew Hale (1609-
1676) one of English's greatest Judges and author of History of Pleas of the
Crown, who stated," Where there is no will to commit an offence, there can be
offence capital”.
Sir Fitz James Stephen, the celebrated Judge, Jurist and Historian in his
ascertain its origin. (Origin of the maxim re. mens rea) but have not succeeded
in doing so. It is not one of the "regulea jurist' in the Digest. The earliest case
of its use which I have found is in the "Leges HenriciPrimi" V. 28, in which it
is said ........' reum non facit nisi mens sit rea.' Pollock and Maitland144
be perpetuated in hunting after forfeiture, while the heart is free from guilt."
Bench,"The solemn obligation (re. mens rea) is no doubt written upon the
said to be," The most correct and beautiful outline that ever was exhibited and
Blackstone states147:
144 Pollock of Maitland, History ofEnglish Law 2n<^ (1968) Edn. p. 474.
145 Glanville Williams, Criminal Law 2n ^ (1961) Edn. p. 215.
146 (1960) 76 L.Q.R. 48; See Also 73 Bom L.R. 96 Journal p. 279.
147 Sir William Blackstone, The Commentaries on the Laws ofEngland 181^ Edn. by Thornes Lee,
(1829) p. 20-21.
An Introduction and Historical Perspective of Mens Rea 40
LIABILITY OF CORPORATIONS
committed by his servant. But there are exceptions to this rule in the case of
acts are forbidden by law under a penalty, possibly even under a personal
the reason for this is, that the Legislature has thought it so important to prevent
the particular act from being committed that it absolutely forbids it to be done;
and if it is done the offender is liable to a penalty whether the had any mens rea
or not, and whether or not he intended to commit a breach of law. Where the
act is of this character then the master, who in fact, has done the forbidden
reason why he should not be, because the very object of the Legislature was to
forbid the thing absolutely. The same principle applies in the case of a
1 Jft
corporation, and if it does the act which is forbidden it is liable.
though he does not know of, and is not party to, the forbidden act done by his
servant. Many statutes are passed with this object. Act done by the servant
of the licensed holder of the licensed premise render the licensed holder in
r
some instances liable even though the act was done by his servant without the
knowledge of the master. Under the Food and Drugs Act there are again
instances well known in these courts where the master is made responsible
even though he knows nothing of the act done by his servant and he may be
fined or rendered amenable to the penalty enjoined by the Law. In those cases
the Legislature absolutely forbids the act and makes the principal liable
for the acts of his servants, yet the Legislature may prohibit an act of enforce a
duty in such words as to make the prohibition or the duty absolute; in which
case the principal is liable if the act is done by his servants. To ascertain
whether a particular Act of Parliament has that effect or not regard must be had
148 Pearks, Gunston & Tee Ltd. v. Ward, LR( 1902) 2 KBD 1.
149 MouselBrothers Ltd. v. London andN. W. Railway, LR (1917) KB 836.
An Introduction and Historical Perspective of Mens Rea 42
to the object of the statute, the words used, the nature of the duty laid down,
the person upon whom it is imposed, the person by whom it would in ordinary
circumstances be performed and the person upon whom the penalty is imposed.
intentional. If the essence of the offence is solely in the doing of an act and
nothing more was required, question of Mens rea would not arise.150
reasonable doubt all the ingredients of the offence alleged including the actus
1 ^1
reus and mens rea.
passed under the Act. However, it is equally well settled that the Legislature
has power to exclude mens rea for launching a prosecution under any Act for
contravention of its provisions. Even a century ago152 the proper tests which
are to be applied for determining the question whether mens rea is an essential
ingredient or not have been sufficiently laid down. They are: (1) the object of
the statute and the subject matters dealt with; (2) the wording of the provisions
150 Food Inspector, Kozhikode Municipality v. Calcutta Co-operative Milk Supply Union Ltd. 1963
MLJ (Crl) 421.
151 Ashokanv. State ofKerala, 1982 Cr.LJ 173 (Kerala).
132 Sherrasv. DeRutzcn(1895) I QB 918.
An Introduction and Historical Perspective of Mens Rea 43
of the Act; (3) whether the achievement of the object of the Act will be
frustrated if mens rea is not excluded. It is found that the object of the Act
There is no question of company to have had the mens rea even if any
terrorist was allowed to occupy the rooms in its Hotel. The company is not a
Essential Commodities Act, Prevention of Food Adulteration Act etc. But there
is no such provision in TADA which makes the company liable for the acts of
the offence under Section 3(4) of TADA. The corollary is that the conviction
within the meaning of section 415, which positively involves criminal intention
to deceive others, The same is also true in respect of the offence of conspiracy
natural person who is capable of having mens rea to commit the offence.
and 120B cannot include in its sweep juridical person like a company. Thus the
company cannot be prosecuted for the offence under Section 420, read with
section 120B155. •
physically committed the offence must be the ego, the centre of the corporate
personality, the vital organ of the body corporate, the alter ego of the
has no mind of its own, its active and directing Will must consequently be
sought in the person of somebody who for some purposes may be called an
agent, but who is really the directing mind and Will of the Corporation, the
very ego and centre of the personality of the Corporation. To this extent there
under our existing laws. But the problem crops up in mens rea offences. Mens
rea and negligence are both fault elements, which provide a basis for the
imposition of liability in criminal cases. Mens rea focuses on the mental state
of the accused and requires proof of a positive state of mind such as intent,
person in control of its affairs to such a degree that it may fairly be said to
think and act through him so that his actions and intent are the actions and
intent of the company. And it is not possible to attribute element of mens rea to
is all the more difficult in the event of mandatory punishment that leads to
imprisonment. However, I need not dilate on this aspect of the case and reserve
Legislatures and Judges for long. Though, initially, it was supposed that a
Corporation could not be held liable criminally for offences where, mens rea
was requisite, the current judicial thinking appears to be that the mens rea of
the person in-charge of the affairs of the Corporation, the alter ego, is liable to
156 Assistant Commissioner, Assessment-IJ, Bangalore and others, v. M/s. Velliappa Textiles Ltd.,
2004 CRI. L. J. 1221: Overruled in Standard Chartered Bank and others etc., v. Directorate of
Enforcement and others etc., AIR 2005 SC 2622)
An Introduction and Historical Perspective of Mens Rea 46
REVIEW
This maxim was repeated in several English decisions long after Coke's
of natural justice and of our law that actus non facitreum, nisi mens sit rea .
older than the law of England that no man is guilty unless his mind is guilty."
To sum up, it can rightly be said that in order to obtain conviction for
any crime, it is to be proved that the actus reus of that offence was done with