CHAPTER-ONE

AN INTRODUCTION AND HISTORICAL PERSPECTIVE OF MENS REA

INTRODUCTION

No problem of criminal law is of more fundamental importance or has

proved more baffling through the centuries than the determination of precise

mental element or Mens Rea necessary for crime . Mens Rea or the mental

element in crime is one of the most important concepts of substantive criminal

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

say, in order to make a person criminally accountable for an act, it must be

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

blameworthy attitude of mind4. * 6

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

MENTAL ELEMENT IN CRIME

The state of mind of the accused is relevant in several areas criminal

law.

(a) Plea of Infancy*5: * The

* * mental capacity of the accused may be

investigated. For example, a child under 7 is never criminally liable6;

one aged 7-12 is so liable only if he has mischievous discretion7. *

n

(b) Plea of Insanity : The mentally disordered state of mind may be looked

at, e.g. in the defences of insanity9 and diminished responsibility.

(c) At times the state of mind is relevant to the question of voluntariness10.

Is the accused acting of his own free will?

(d) The fourth meaning concerns the particular state of mind required11 in

relation to the other ingredients of the offence. This is mens rea 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 BASIS OF THE CONCEPT OF MENS REA

The foundation for mens rea is that the accused can control his

conduct. He can decide whether to engage in conduct which breaks the

criminal law. Biggs, Chief Judge12 states :

“The Concept of Mens Rea, guilty mind, is based

on the assumption that a person has the capacity to control

his behaviour and to choose between alternative courses

of conduct. This assumption, though not unquestioned by

theologians, philosophers, and scientists, is necessary to

maintain and administration of social controls. It is only

through this assumption that society has found it possible

to impose duties and create liabilities designed to

safeguard persons and property... Essentially these duties

are intended to operate upon the human capacity for

choice and control of conduct so as to inhibit and deter

socially harmful conduct. When person possessing

capacity for choice and control, nevertheless breaches a

duty of this type he is subjected to the sanctions of

criminal law.”

On one approach the law is to prevent harmful behavior. A person

acting when he is in control of his movements and adverts to the possible

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

carelessly, and he is deserving of more punishment than a person who has so

acted. It is usually said that penalizing conduct without mens rea is

inefficacious and unjust . It is thought to be unjust because it is wrong to

impose the stigma of criminal conviction on someone who was not morally

blame worthy14.

Nicola Lacey15 Observes :

“This concept of responsibility [from H. L.A. hart’s

Punishment and Responsibility (1968)] consists in both a

cognitive and a volitional element: a person must both

understand the nature of her actions, knowing the relevant

circumstances and being aware of possible consequences,

and have a genuine opportunity to do otherwise than she

does -to exercise control over her actions, by means of

choice. If she has not a real opportunity to do otherwise, if

she has not genuinely chosen to act as she does, she

cannot be said to be truly responsible, and it would be

unfair to blame, yet alone to punish her for her actions.”

While dealing with mens rea, it would be convenient16 to group17 the

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

(1) Crimes in which mens rea% is found in an intention to commit an

illegal act (General intention).

(2) Crime in which a particular intention is required (e. g., in English law

burglary is house/breaking by night with the intention to commit a

felony).20

(3) Crime in which negligence21 will suffice (e.g. management of vehicles

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

ANALYSIS OF DEFINITIONS OF OFFENCES

In Indian Penal Laws, as well as in every others, every offence is

carefully defined so as to include in the definition the precise evil intent which

is the essence of a particular offence , as well as the other necessary element

to it. If these definition are analysed they generally comprise the following

principle elements24: -

(a) A human being

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

(b) An intention on the part of such a human being to cause a certain

consequence considered injurious to individuals or to society, and which
fore the sake of brevity we call an intent.
(c) The act willed.

(d) The resultant evil consequence.

In case where the intended consequence is not injurious by itself, but is

injurious in conjunction with certain other facts, a further element is

added25, viz:-

(e) A knowledge of the existence of such facts.

(i) A human being under a legal obligation to act in a particular way

and a fit subject for the infliction of appropriate punishment - is

indicated by the use of word ‘whoever’ with which the definition

of every offence begins.

(ii) An evil intent or mens rea on the part of such a human being is

indicated generally by the use of such words as intentionally -

voluntarily -fraudulently -dishonestly- wantonly- maliciously,

etc.

(iii) An act willed -committed or omitted in furtherance of such

intent.

The resultant consequence - an injury to another human being or to

society at large by such an act.

25 Supra note 17.

 An Introduction and Historical Perspective of Mens Rea 7

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

uncertain as to the possibility of ascertaining it accurately. This difficulty is

illustrated by a much quoted observation of Brain C. J. “For it is common

knowledge that the intention of a man will not be probed for the devil does not

know the man’s intention .”

MENS REA -MEANING OF

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

more elementary a proposition of law, the more difficult it is to find an

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

26 Supra note 18.

27 Y. B. 17Ed. IV f. 0.2. The oft - quoted observation is that “the thought of a man is not triable, for
the devil himself knowth not the thought of a man”. The learned editor of Kennny’s out line of
Criminal Law observes (p. 12) that the case arose out of a civil action on an agreement for sale of
growing crops, the point in argument being the purchasers’ uncommunicated approval of the
property sold. The word “trie” in Y.B. Text has times been mistranslated as tribleinstead of probed
or investigated which gives a wrong meaning to the Chief Justice’s declaration.
28 Michael Jafferson , Criminal Law, p. 95.
29 Quoted by H.L. Taneja in his article Mens Rea publish in 1986 (Ap) 16 TLR 51.
 An Introduction and Historical Perspective of Mens Rea 8

kindergarten part of the criminal law..... To define mens rea, and the different

forms that it may take is a complex task .

What is quite clear about the traditional meaning of “mens rea' from its

origin in St. Augustine’s adaptation of Seneca to current discussion is its moral

connotations expressed in terms of “evil mind” or “evil will” by the early

writers, and in terms of “guilt” or moral “culpability” by the modern one31.

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,

which is obviously untrue, as there is always a possibility of a conflict between

law and morals^2.

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

words that immorality is essential to crime.” It is also misleading because, “It

naturally suggests that, apart from all particular definitions of crime, such thing

exists as a -mens rea\ or ‘guilty mind’, which is always expressly or by

implication involved in every crime. This is obviously not the case, for the

mental elements of different crimes differ widely.” In his Tolson opinion he

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

also said: “Of course, it would be incompetent to the legislature to define a

crime in such a way as to make the existence of any state of mind immaterial”.

Accordingly, he concluded: “It appears confusing to call so many dissimilar

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,

varying according to different nature of different crimes.... and therefore the

Of

expression itself is unmeaning ”.

Professor Sayrej6 states, “It is quite futile to seek to discover the

meaning of mens rea by any common principle of universal application

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

rea, chameleon- like, takes on different colours in different-surroundings37”.

He concluded almost in Stephen’s words, “The truth is that there is no single

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

According to professor Stallybrass , “It is not easy to arrive at the true

meaning of mens rea at present day”. He wrote: “In old cases, mens rea did

34 Queen v. Tolson (1889), 23 Q. B. 168,185, 186, 189.

35 Supra note 26.
36 Supra note 2. -
37 Supra, at pp. 1021-1022.
38 Stallybrass, in The Modem Approach to Criminal Law 406 (Ed. Radzinowicz and Turner, 1945).
 An Introduction and Historical Perspective of Mens Rea 10

involve moral blame, and did mean a guilty mind....”. As regards modem

penal law, however, he approves justice Shesrman’s39 statement in a 1925 case,

that, “The true translation to my mind of mens reals.... ‘The intention to do

the act which is made penal by the statute or by common law’.”

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

knowledge of the circumstances that makes that act a criminal offence40”.

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

moral wrong or dishonest intent or conscious guilt. It means an intent to do the

forbidden act (whether you know it is forbidden or not), or (generally)

recklessness as to it, intention includes knowledge”.

A literal meaning of mens rea is ‘guilty mind’. There in no need or the

accused to feel morally guilty. Smith and Hogan42 provide a working definition

of mens rea.

“Intention, knowledge or recklessness with respect to all the elements of

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,

39 Jarome Hall, General Principles of Criminal Law, p.71.

40 Devlin, Statutory Offences, 4J of Soc. Pub. Teachers of L. 213 (1958).
41 Glanville Williams, Text Book ofCriminal Law p.49.
42 Smith and Hogan, Criminal Law, 6* Edn. Butter worth, 1988.
 An Introduction and Historical Perspective of Mens Rea 11

when compounded with the relevant prohibited conduct, constitute a particular

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

or threatens the harm”.

All three above stated definition may be criticized. If mens rea is

defined in term of intentionally, recklessly, and knowingly automatically

negligence is excluded, according to these definitions, from mens rea.

Whichever definition is used, it does not get us for towards knowing

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

must be determined by looking at statutes and cases. Mens rea is at heart an

analytical tool, not a prescriptive norm45 in brief:

“Mens Rea is a technical term, generally to mean some

blameworthy mental condition, whether constituted by

intention or knowledge or otherwise the absence of which

on any particular occasion negatives the contention of

crime”46.

43 DPPv. Majewski(1977) AC. 443.

44 (1968) CL J 273, 274.
45 Supra note 9 at p. 97.
46 Stephen, History of Criminal law ofEngland, (Vol. II, 1983), pp. 94-95; Smith &Hogan, Criminal
Law, (2nd ed., 1969), P. 94; Essays on the Indian Penal Code (I.L.I. 1962) pp. 56-62. Annual Survey
ofthe Indian Law, 1963, (I.L.I; p. 499; Perkins, R.M., ‘A Rationale ofMens rea’, (1938-39) 52 Harv.
L.R. 779; ‘Mental Element’{\960-6\)l 5 Hrv. L.R. 17-21.
 An Introduction and Historical Perspective of Mens Rea 12

However, there is no single state of mind that must be present as

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

case of homicide, by rash or negligent act, recklessness or negligence.

Therefore, in order to appreciate the meaning of the term mens rea, it is

necessary to have a clear conception of words like intention, recklessness and

negligence , which are often used to indicate the different possible mental

attitudes constituting the actus reus of a particular crime.

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

of conduct so as to achieve a particular end at which he aims49. Intention also

connotes a conscious state of mind in which mental faculties are roused in

activity and summoned into action for the deliberate purpose of being directed

towards a particular and specified object and which the human mind conceives

47 K. D. Gaur, Criminal Law: Case & Materials, p. 33.

48 Sayre, Mens Rea, (1932) 45 Harv. L. Rev. 974; S.K.K. V Karev. State ofKerela (1970) Cr. L. J.
688, 692.
49 Russell On Crime, Two 12th Edn. Vol. I, P. 41.
 An Introduction and Historical Perspective of Mens Rea 13

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:

“Intention is the purpose or design with which an act is

done. It is the fore-knowledge of the act, coupled with

desire of it, such fore-knowledge and desire being the

cause of the act, inasmuch as they fulfil them selves

through the operation of the will”.

An act is intentional if, and in so for as, it exists in fact, the idea

realizing itself in the fact because of the desire by which it is accompanied.

Intention was defined by the Court of Appeal of England in Mohan52 as:

“A decision to bring about, in so far as it lies with in the

accused’s power, [a particular consequence] no matter

whether the accused desired that consequence of his act or

not. As the court recognized53, this can be described more

briefly as the ‘aim’. Alternatively, it can be described as

the accused’s ‘purpose”.

50 Faquirav. State MR 1955 All. 321.

51 Kenny’s Outlines ofCriminal Law, 17* Edn., p 31.
52 (1976) Q B1, (1975) 2 All E R 193 at 200.
53 Supra at 198.
 An Introduction and Historical Perspective of Mens Rea 14

“Intention is the result of deliberation upon motive, and is the object

aimed at by the action caused or accompanied by the act of volition54”.

There is no agreement55 in English law as to the meaning of the word

“intention”. There are four main views.

(1) A consequence is intended when it is the aim or the objective of the

actor. This is often called “direct” intent.

(2) A consequence is intended when it is the aim or the objective of the

actor or is foreseen as certain to result.

(3) A consequence is in the aim or objective of the actor, or is foreseen as a

virtual, practical, or moral certainty, or as the Criminal Code Bill

defines it, “being aware that it will occur in the ordinary course of

events56”. (If this state of mind is classed as intention, it is some times

r-7

called" oblique intention”) .

(4) A consequence is intended when it is the aim or objective of the actor,

or is foreseen as a probable or likely consequence of his actions.

While the criminal law takes into account mens rea, as a general rule it

disregards motive. The problem is, therefore, to distinguish motive from

intention. It is often easy to state that the accused’s ultimate purpose was the

motive58.

54 Shamshul Huda, Principles oflaw of Crime in British India, p. 31.

55 C.M.V. Clarkson and H.M. Keating, Criminal Law Text and Materials, p. 153.
56 CL. 18(b) (II) (Law Com. No 177) of England.
57 See for Example, Glanviile Williams, Oblique Intention (1987) EJU 419.
58 Michael Jefferson, Criminal Law, p. 99.
 An Introduction and Historical Perspective of Mens Rea 15

Intention distinct from motive

The terms “intention” and “motive” must be distinguished59 and will be

understood by an illustration, in beating our enemy, we will in the act of

striking intend to cause him pain. Causing pain may be to satisfy our revenge

or cripple him against combating with us in a race or merely to indicate the

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

a chain of other desires of ours.

Holmes, Stephen and Sayre distinguished intention from motive on

traditional lines60, and if they did not always exclude motive from, and

associates intention with, mensrea, it was because negligence, the mentes reae

and strict liability seem to bar the way61.

Motive, for Austin, is a wish (volition or desire) ; and volitions are

desires which result in immediate bodily movements. A motive is a desire that

precedes a volition , and this is the meaning of a “motive determining the

will64.” Austin distinguished motives a “springs of action”, which “urge” from

intention a “state of understanding”. He said, “The intention is the aim of the

fact, of which the motive is the spring65”.

49 Supra note 20 at p. 74.

60 Supra note26 at p. 110-111.
61 Supra note 52 at p. 84.
62 Austin, Lectures on Jurisprudence, p. 168 (4th'ed. 1879).
6j Supra at 428.
64 Supra at 432.
65 Supra at 165.
 An Introduction and Historical Perspective of Mens Rea 16

S almond states66 that intentions are divisible into immediate intentions

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

example, a theft’s immediate intention is to appropriate another’s property, and

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

“motive” are synonyms.

Salmond’s views have had considerable influence, and an American

fn

writer on criminal law agreed:, “In reality motive is the species of intent

Another scholar, summarizing and in the main, also following Salmond,

concluded that, “in many cases whether a crime has been committed will

depend upon the motive.. ,.68”

Intention is an operation of the will directing an overt act; motive is the

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

66 Salmond, Jurisprudence, p. 397 (7th ed. 1924).

67 Hitchler, The Law of Crimes, p. 87 (1939).
68 Cook, Act, Intention, and Motive in the Criminal Law. 26 Yale L.J. 645, 661 (1917).
 An Introduction and Historical Perspective of Mens Rea 17

causes death, the motive is the object which the person had in view, e.g. the

satisfaction of some desire such as revenge, etc.69

Thus intention refers to the consequence which directly follows an act,

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

not his motive .

To conclude, we may state that while intention is a state of mind

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

intentional consequence is brought about. Intention when distinguished from

motive relates to the means, whereas motive to the end .

The relevance of motive under the English Law

One of the mental components often raised in issue is that of motive. If

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

69 Stephen, History ofEnglish Criminal Law Vol II.

70 R.C. Nigam, Law ofCrimes in India, p,77.
71 Ibid at 76; see also Michael Jafferson , Criminal Law, p. 99. Bikan Panday v. State ofBihar, AIR
2004 SC 997 ; Mani Kumar Thapa v. State of Sikkim, AIR 2002 SC 2920 ; Krishna Pillai. Sree
Kumar and anotherv. State ofKerala, AIR 1981 SC 1237 “It is not a sine qua non for the success of
the prosecution that motive must be proved.”
72 K Moideerr, AIR 1959 Ke'r 146; see also Basdeo v. Papsu, AIR 1956 SC 448.
 An Introduction and Historical Perspective of Mens Rea 18

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

example, an accused breaks into a laboratory used for the testing of

pharmaceuticals on animals, the question of guilt is determined by the presence

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

liability. If it has any relevance, it may be addressed in the sentencing part of

the trial when the court considers what punishment, if any, it would be

appropriate to impose given the degree of fault or blameworthiness in the

accused.

KNOWLEDGE

Intention is also distinguishable from knowledge7^. To know a thing

means to have a mental cognition of it . Knowledge is the awareness of the

consequence of an act. A man may be aware of the consequence of an act,

though he may not intent to bring them about. To believe a thing is to assent to

a proposition or affirmation or to accept a fact as real or certain without

immediate personal knowledge. Knowledge and “reason to believe” are to be

•yr
clearly distinguished . For example, a man you know to be poor brings to you

73 K.D. Gour: Cases and Materials on Criminal law, p.35.

74 Supra.
15 Supra note 64 at p. 77.
 An Introduction and Historical Perspective of Mens Rea 19

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.

Section 26 of the Code76 states that “a person is said to have reason to

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

faculties and consists in the perception of the truth of the affirmative or

negative proposition.” A person is supposed to know a thing where there is

direct appeal to his senses, whereas ‘reason to believe’ means sufficient cause

to believe a thing but not otherwise.

Knowledge and reasonable is purely an operation of mind and is often

difficult to prove. Therefore, it is inferred from the surrounding circumstance

sand the acts of the person. Every man is supposed to intend the natural

consequence of his act. Such inferences are sometimes based on certainty,

sometimes on different degrees of probability. Where an inference is more or

less certain, we say it is based on belief. In many cases, however, a reasonable

ground of belief for all practical purposes is a good as knowledge.

76
The Indian Penal Code, 1860.
 An Introduction and Historical Perspective of Mens Rea 20

We may now distinguish between motive, intention and knowledge.

Motive is something which prompts a man to form an intention, and

knowledge is the awareness of all consequences of an act, and a man may be

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

difficult to perceive that they connote different thing77.

NEGLIGENCE

Negligence is used to denote want of care and precaution, which a

reasonable man would have taken under the particular circumstances of the

case . Negligence is non-compliance with a standard of conduct and involves

a blameworthy inadvertence to the influences and consequences mentioned in

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

without adverting at all to its consequences.

In a civil -action for damages for the injuiy caused by the negligence of

the defendant, no question of mens rea arises, in criminal proceeding, on the

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

77 Basdeov. State ofPepsu, AIR 1956 SC. 448.

78 Blyth v. Birmingham Water Work Company,; (1856) II Ex. 781,784.
79 R.C. Nigam, Law ofCrimes ofIndia, P. 80.
 An Introduction and Historical Perspective of Mens Rea 21

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

navigation82 of vessel, negligently conveying for hire any persons by vessel83.

In all these are thirteen sections which deal with cases of criminal

negligence85.

Negligence as opposed to intention indicates a state of mind where there

is an absence of a desire to cause a particular consequence.

Negligence means o non-intentional failure to conform to the conduct of

the reasonable man in respect of the consequence in question, and it really

involves both subjective and objective inquiry. Criminal negligence will

include recklessness and gross negligence.

Negligence must be distinguished from neglect . Neglect, unlike

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

willful neglect87 or recklessness88 in not repairing the brake and wheels.

Criminal negligence under the English Law

Here, the test is both subjective and objective. There is credible

subjective evidence that the particular accused neither foresaw nor desired the

particular outcome, thus potentially excluding both intention and recklessness.

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

requirement. Most legislatures prefer to base liability on either intention or

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

objective tests to establish the minimum requirement of foresight for

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

87 GibbondProctor(1918) 13 G. App. R. 134.

88 Kenny’s Outlines ofCriminal Law 19th Edn. (1966) Edited by J.W. Cecil Turner, p. 35.
89 Supra at 36.
90 Austin, Jurisprudence, 4th Edn, I. p441, ‘The party conceives the future event, and believes that there
is a chance of its following has volition or act. ■
 An Introduction and Historical Perspective of Mens Rea 23

person, who foresees the possible consequences of his conduct, but acts

without any intention or desire to bring them about91. A man is said to be

reckless with respect to the consequences of his act, it he foresees the

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

negligent, or reckless towards the consequences of the act in question.

Eve J. has described it, “as an attitude of mental indifference to

obvious risk.”

Thus recklessness is the wrongful disregard of a foreseen risk. It

connotes knowledge of the likelihood of the existence of the circumstances or

occurrence of the consequences; but it fall short of belief in certainty of these

matters. Recklessness also involves the wrongful assumption of a risk .

Recklessness (willful blindness in the U.S.)

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

always some degree of intention subsumed within recklessness. During the

course of the conduct, the accused foresees that he may be putting another at

risk of injury: A choice must be made at that point in time. By deciding to

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,

the greater the degree of recklessness and, subsequently, sentence rendered.

Foresight of consequences

As a general rule, the accused must have had adequate control of his

bodily movements, knowledge of fact and foresight of consequences. If these

requirements are not fulfilled, the conduct in respect of which he is charged

was not fully voluntary and, unless this was due to his fault, it would be unjust

to punish him.

Nevertheless it is essentially a rule of evidence; the reference to

“natural” and probable” consequences means no more than this, that if in the

opinion of the tribunal, man of “ordinary” or “average” mentality, standing in

the prisoner’s place, would have foreseen the particular consequences, he

would have stopped, or altered, his conduct so as to avoid producing them

unless he intended to produce them, it is therefore, safe to assume that the

accused also foresaw and intended to produce the consequences, an assumption

which therefore must proved unless the defence can abolish it94.

Foresight can be towards a particular and specified object or towards a

forethought desire or towards a desire of the possible consequences of a

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

94 R. v. Smith (1960) 2 All ER 450 at 454.

 An Introduction and Historical Perspective of Mens Rea 25

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

movements or omissions. In other words intention means purpose or desire to

bring about a contemplated result or foresight that certain consequences will

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.

COINCIDENCE OF ACTUS REUS AND MENS REA

A ctiis non facit reum, nisi mens sit rea

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

implied noun hominem : It is therefore a subjective epithet and signifies

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

legally blame worthy attitude of mind”.

Actus me invito factus non estmens actus

In criminal law, two essential elements namely, (a) the physical

elements which is also known as actus reus, and (b) the mental element,

commonly known as mens rea, are necessary to constitute a crime. The

physical element that constitutes the crime is obvious, because it is externally

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

maxim of an equal importance is applicable, which means an act which is done

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

intended act therefore I shall not be punished for it.

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

98 Supra note 66.

 An Introduction and Historical Perspective of Mens Rea 27

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".

In juristic concept, actus reus represented the physical aspect of 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.

A mere criminal intention not followed by any can not constitute an

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.

Blackstone states, “An unvoluntary act, as it has no claim to mens rea so

neither can it induce any guilt; the concurrence of the will, when it has its

99 Halsbury’s Law ofEngland Vol IX, at p. 10.

100Supra note 89 at p. 57.
101 R.A. Nelson ‘Indian Penal Code 5th (1910) Edn. P. 102.
102 Supra note 93 at pp.28,29.
103 L.V. Ganatra and V.B. Ganatra, Is Crime=actus reus + mens rea?(1973) Guj. L.R. 13.
104 Supra note 94.
105 Sir Mathew Hale, History ofPleas ofthe Crown.
106 Supra note 96. p. 15.
107 (154) 1 LR (1954) 2 All 215 (220).
 An Introduction and Historical Perspective of Mens Rea 28

choice either to do or to avoid the fact in question, being the only thing that

renders human action either praise worthy or culpable”. Indeed, to make a

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

hand, an unwarranted act without a vitious will is no crime at all. So that to

constitute a crime against human laws, there must be, first a vitious will; and

secondly an unlawful act consequent upon such vitious will .

According to Smith and Hogan109, “a crime may, for the purpose of

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

also of the surrounding circumstances, is so for as they are relevant.”

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

of “omission” therein was latter development110. Therefore, now actus reus

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”

A Doom of Canute specified: “If any one does anything unintentionally,

113
the case is entirely different from that of one who act deliberately. ” The

meaning of the actus reus can be conveniently explained and illustrated by the

facts and judgment of the following case.

In Fagan v. Commissioner of Metropolitan Police114, it was held by

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

intention to causing that effect.

Austin in his Lectures on Jurisprudents, states, “a voluntary

movement of my body, or, a movement which follows a volition, is an act. The

involuntary movements which are the consequences of certain diseases are not

acts.”

Holmes in his The Common Law states, “An act is a muscular

contraction and something more. A spasm is not an act. The contraction of the

muscles must be willed116”.

112 Glanville William, Criminal Law 2 nd Edn. Pp.11,18,19.

"J Canute, Cap 68 No.3.
114 (1968) 3 W.L.R. 120 =(1964) 3 All E.R. 442.
115 Austin, Lectures on Jurisprudence, Lecture XVIII, 1873, p. 427.
1,6 Ibid note 98 at p. 20.
 An Introduction and Historical Perspective of Mens Rea 30

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

purpose of the present disquisition is termed “conduct”);

(ii) Such circumstances as are specified by the law;

(iii) The result of this conduct in these specified circumstances. These first

three point constitutes the actus reus.

(iv) The conduct must be voluntary,

(v) The result must be foreseen

The intent and the act must both concur to constitute the crime. The

principle is that an accused can be convicted only if it can be shown that he

caused the actus reus of the crime with which he is charged, with the mens rea

of the same crime.

HISTORICAL PERSPECTIVE OF MENS REA

A young child learns very early in life to plead "I did not mean to..."may

evoke at the least a sympathetic response or possible even complete

exoneration from blame . We do, it seems, draws distinctions in every day

life between deliberate destruction of property or harm to another and that

which is accidental. This distinction has become firmly established in the

criminal law through the development of the concept of mens rea.

1.7 Russell On Crime, 12lh Edn. Vol I (164) p. 25.

1.8 C.M.V. Clarkson and H.M. Keating, Criminal Law, Text and Materials, p.!47(2nd Edn,)
 An Introduction and Historical Perspective of Mens Rea 31

Deodand

In Jewish. Greek, Roman and English law, culpability was imputed to

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

stated, "There is a well known passage in Exodus ,which we shall have to

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

shall be quit." if a slave killed a man , he was to be given up to the relatives of

the deceased. If he wounded a man, he was to be given up to the injured party

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.

These objects were known as deodand.

In Kenny's Outlines of Criminal Law120 interesting details are given

regarding deodand. Deodands were abolished in 1846 by statues 9 and 10.

Early Ages and Crime

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

119 R.C. Nigam, Law ofCrime in India Vol. I p.38.

120 Kenny's Outlines ofCriminal Law, 19th Edn. (1966) pp. 7-8.
 An Introduction and Historical Perspective of Mens Rea 32

to preserve the peace by providing an alternative to self help and private

vengeance. To this end it reserved to itself the right of avenging wrongs121.

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

his wrong whether done accidentally or negligently122.

Mens Rea -Origin Of

There can be no crime large or small without on evil mind, says

Bishop , "It is therefore, a principle of our legal system as probably it is of

every other124, that the essence of an offence is a wrongful intent without

which it can not exist". The basis of this principle is in the maxim,actus non

facitreum, nisi mens sit rea.

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

an obvious kind that there deeds bring upon their fellow .

Similarly , Professor Wigmorat127 observes :

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

deed was responsible, whether he acted innocently or

inadvertently, because he was the doer . The owner of the

instrument which causes harm was responsible, because

he was the owner, though the instrument had been wielded

by a thief; the owner of an animal, the master of a slave,

was responsible because he was associated with as owner

as master....”

Prof. Sayre in his article "Mens rea"m observes that in the

recognising law prior to the 12th century , a criminal intent was not

recognised as an indispensable requisite for criminality.

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

development of which we can be reasonably confident was from the distinction

between deliberately wrong doing and accident to more careful analysis of

the former, i.e. of criminal intent.

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

127 R.C. Nigam, Law ofCrime in India, p. 82.

128 Harv. L. Rev. (1931-32) 4 pp. 974-1026.
129 See Case 114 (1212), Se/den Society, Select Pleas ofthe Crown 67 (1887).
 An Introduction and Historical Perspective of Mens Rea 34

punishment. He refers to Leges Henrici Prim/30 compiled about the year

1118 when it is stated:

"If someone in the sport of archery or other form of

exercise kill another with a missile or by some such

accident, let him repay, for the law is that he who

commits evil unknowingly must pay for it knowingly or

who sins unwittingly shall knowingly make amends".

Until the 12^ century although the modern notion of mens rea was non

existent but criminal intent was not entirely disregarded in some offences

where it was taken into account in awarding punishment . By the time of

Edward I the incapacities resulting from infancy and insanity were

recognised as defences131. In 13th century, Roman law and its conception of

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

{voluntate) a thing is done in fact or in Judgement in order that it may be

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

130 Legis Henrici Primi, pp. 81,96 (A.D. 1118).

131 Jerome Hall, General Principles of Criminal Law, p. 79.
132 Bracton, De legibus 101B (A.D. 1640).
 An Introduction and Historical Perspective of Mens Rea 35

injure (non-cledivoluntas) intervenue nor is a theft committed except with

intent to steal".

Of homicide he wrote :

"The crime of homicide, be it either accidental or

voluntary, does not permit of suffering the same penalty,

because in the case the full penalty must be exacted and in

the other there should be mercy".

In the 13^ century if a felony was committed, than the guilt was

determined according to the guilty mind. In other words, "felony is

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

ground of exculpation, though a pardon was required .

Holmes in his " The Common Law135" observes, "It is commonly known

that the early forms of legal, procedure was grounded in vengeance....

Vangeanee imports of feeling of blame, and an opinion, however distorted

by passion that a wrong has been done. It can hardly go very far beyond the

case of a harm intentionally inflicted, even a dog distinguishes between being

133 2 Holdsworth, H.E.L. 51-53 (3rd Edn 1923).

134 Bracton, DeJegibus 134F (A.D. 1640).
Ij5 Oliver Wendell Holmes, The Common Law, pp. 2,3.
 An Introduction and Historical Perspective of Mens Rea 36

stumbled over and being kicked." Whether for this cause or another, " the early

English appeals for personal violence seems to have confined to intentional

wrongs."
136
Roscoe Pound has observed :

" Modem law suppresses revenge, the beginning of law

buy off revenge. As a legal order develops, the injured

party is required to accept a composition for his

vengeance and is prevented from helping himself. The

next step is to enable him to comple payment of

composition; to compel the wrong doer to buy off his

vengeance. The endeavour to satisfy the individual desire

for vengeance is the first step towards a wider concept of

the legal order."

During the 14^ and 15^ centuries the notion that mens rea is

necessary to constitute a crime was well established, though we get some

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

lj6 Roscoe Pound, The Task ofLaw (1963) p. 42.

137 Supra at p. 83.
 An Introduction and Historical Perspective of Mens Rea 37

Fairfax replied:" It was not felony, for felony is of malice aforethought and

as it was against his will it was not Animo Felonia."m

During the 16^ century it was settled that if there is criminal intent,

which is not accompanied by an act, it will not be punishable. It was observed

in Hales v. PatiP9 :

“The imagination to do wrong with out an act done is not

punishable in our law, neither is the resolution to do that

wrong which he does, not punishable; but the doing of

the act is the only point which the law regards; for until

the act is done, it can not be an offence to the world.

When the act is done, it is punishable”.

In other words, this observation indicates that criminal law does not

interfere for moral blameworthiness. On the other hand, if the act was without

wrongful the intention it was excusable. It was held in R. v. Lived40, that

where a man killed an old house- mate thinking of her to be a thief under

mistaken belief, he is not guilty of murder.

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

so well established that he repeats it in more than one connections as accepted

!3S Y.B. 6 Edv. IV. F. 7.

139 Plowdon, p. 259.
140 1629 Cro Car. 538.
 An Introduction and Historical Perspective of Mens Rea 38

law. Coke is quoted as having said," Acts of Parliament are to be so construed

as no man that is innocent or free from injury or wrong' be, by a literal

construction punished or endamaged.141"

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

no just reason to incur the liability." He writes:

“As to criminal proceeding, if the act that is committed is

simply casual, and per in fortumium, regularly that at

which, were it done Exanime, intentione, were punishable

with death, is not by laws of England to under go that

punishment, for it is the will and intention, that regularly

is required, as well as the act and event, to make the

offence capital”.

Sir Fitz James Stephen, the celebrated Judge, Jurist and Historian in his

Judgement in the Queen v. Tolson in 1889 has observed143," I have tried to

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

141 Francis C. Jacobs, Criminal Responsibility, p. 94.

142 R.C. Nigam, Law of Crime in India, p. 84.
143 (1889) 23 Q.B.D. 168,186.
 An Introduction and Historical Perspective of Mens Rea 39

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

attributed the maxim to the sermons of St. Angustinus. Dr Glanville

Williams145 quotes Foster J. as having observed," It is not the part of Judges to

be perpetuated in hunting after forfeiture, while the heart is free from guilt."

And he quoted Erskine as having submitted before the Court of Kings

Bench,"The solemn obligation (re. mens rea) is no doubt written upon the

hearts of all the Judges; but it is unfortunate when it happens to be written in

the illegible a hand that a jury cannot read it."

Sir Williams Blackstone's Commentaries on the Laws of England, are

said to be," The most correct and beautiful outline that ever was exhibited and

the most influential law book in all legal history146.

Blackstone states147:

"An involuntary act, as it has' no claim to mens rea so

neither can it induce any guilt; the concurrence of the will,

when it has no choice either to do or to avoid the fact in

question, being the only thing that renders human actions

either praiseworthy or culpable. Indeed, to make a

complete crime cognisable by human laws, there must be

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

both a will and an act.... And, as a vitious will without a

vitious act is no civil crime, so, on the other hand, an

warrantable act without a vitious will is not crime at all.

So that to constitute a crime against human laws, there

must be, first a vitious will; and secondly an unlawful act

consequent upon such vitious will." Blackstone's "vitious

will" is mensrea and “Unlawful act” actus reus.

LIABILITY OF CORPORATIONS

By the general principles of the criminal law, if a matter is made a

criminal offence, it is essential that there should be something in the nature of

mens rea, and therefore, in ordinary cases a corporation cannot be guilty of a

criminal offence, nor can a master be liable criminally for an offence

committed by his servant. But there are exceptions to this rule in the case of

quasi-criminal offences, as they may be termed, that is to say, where certain

acts are forbidden by law under a penalty, possibly even under a personal

penalty, such as imprisonment, at any rate in default of payment of a fine; and

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

thing through his servant, is responsible and is liable to a penalty. There is no

 An Introduction and Historical Perspective of Mens Rea 41

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.

It may be the intention of the Legislature, in order to guard against

happening of the forbidden thing, to impose a liability upon a principle even

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

without a mens rea.149

While prima facie a principal is not to be made criminally responsible

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.

The Legislature can either clearly or by necessary implication rule out

mens rea as a constituent part of a crime. No question of mens rea arises

where the Legislature has omitted to prescribe a particular mental condition as

an ingredient of an offence, because the presumption is that the omission is

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

Burden of proof rests entirely on the prosecution to establish beyond

reasonable doubt all the ingredients of the offence alleged including the actus
1 ^1
reus and mens rea.

The normal rule, it is no doubt true, is that mens rea is an essential

ingredient before a prosecution can be launched for contravention of an order

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

will be frustrated if mens rea is construed as an essential ingredient, then it can

1 's'S

be taken that mens rea will stand excluded by necessary implication.

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

natural person. In many recent penal statutes, companies or corporations are

deemed to be offenders on the strength of the acts committed by persons

responsible for the management or affairs of such company or corporations e.g.

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

its officers. Hence, there is no scope whatsoever to prosecute a company for

the offence under Section 3(4) of TADA. The corollary is that the conviction

passed against company is liable to be set aside.154

Prosecution against the company cannot be sustained being a juridical

person is in a sense doli incapax and it cannot commit an offence of cheating

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

which involves guilty mind to do an illegal thing. Therefore, although a person

who is victim of deception can be a company, the perpetator of deception

3 C. Devamani\. State, 1983 Cr. LJ 1320 (Mad).

154 Kalpnath Rais/. State, AIR 1998 SC 201.
 An Introduction and Historical Perspective of Mens Rea 44

cannot be a corporate body like a company or association. It can only be a

natural person who is capable of having mens rea to commit the offence.

Consequently, the word "whoever" occurring at the beginning of Sections 415

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. •

In order to trigger corporate criminal liability for the actions of the

employee (who must generally be liable himself), the actor-employee who

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

employer-Corporation or its directing mind. Since the Company/Corporation

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

are no difficulties in our law to fix criminal liability on a company. The

Common Law tradition of alter ego or identification approach is applicable

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,

155 Motorola Incorporated v. Union ofIndia, 2004 Cr LJ, p. 1576.

 An Introduction and Historical Perspective of Mens Rea 45

recklessness or willful blindness. Negligence, on the other hand, measures the

conduct of the accused on the basis of an objective standard, irrespective of the

accused's subjective mental state. Criminal liability of a company arises only

where an offence is committed in the course of the company's business by a

i

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

a juristic person, which requires positive act of omission or commission. Since

this cannot be attributed to a juristic person, it is difficult to accept the

proposition of 'punishing a company' wherein mens rea element is necessary. It

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

that answer for consideration in a more appropriate case.

The question of criminal liability of a juristic person has troubled

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

be extrapolated to the Corporation, enabling even an artificial person to be

prosecuted for such an offence156.

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

time. In 1798 Lord Kenyon observed in Flowery. Padgei51. "It is a principle

of natural justice and of our law that actus non facitreum, nisi mens sit rea .

Lord Abinger repeated a similar observation in R .v. Ailday159." It is a maxim

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

the requisite mens rea.

157 (1798) 7 T. R. 509, 541.

(1837) 8 C and P 136,139.
159 Pollock and Maitland, History ofEnglish Lawp. 470.