The old Roman law says that, without law there is no crime. The legislature,
while defining crime takes into consideration various factors viz. social and
sociological factors, economic factors, political conditions and other things as it
thinks fit.
Crime is a public wrong. Public wrong in the sense it causes injury to the public
or community as a whole and any member of the public can move the court, it
causes threat to social security and creates social disorder. It is a wrong pursued
by the sovereign or its subordinate i.e. Police, Judicial Officials etc. for
example Murder, Rape, Theft, Forgery etc. New crimes in new era :- Use of computer network has given rise to cyber-crimes and other computer
related unlawful activities of twenty-first century's hi-tech world. Cyber-crimes
are harmful acts committed for or against a computer or against information on
computer network. These crimes differ from most terrestrial crimes in four
ways:
(1) It is easy to learn how to commit them, (2) they hardly require any resources. (3) they can be committed in a jurisdiction without being physically
present in it, and (4) they are often not clearly illegal. Some criminals operate around the computer network, undeterred by the prospect of arrest or
prosecution, and therefore are a menace to e-mail or e-commerce users. Frauds,
hackers, viruses, pornography, harassment, stalking, data-diddling etc are these
cyber-crimes cover a wide range of illegal activities. These offences are needed
to recognise the fact that criminal law must continue to address itself
adequately to new developments in information technology. Because of the
cyber crimes' international potential, there is need for an effective anti cyberspace international law for preventing cyber-crimes.
In recent years has made the crime situation still worse as evinced by scams, corrupt practices,
bomb-blasts, sex-scandals and all sorts of violent activities. Information and technology act ,2000 has provided some of the offences under the following sections : 65. Tampering with computer source documents.
66. Computer related offences.
66A. Punishment for sending offensive messages through communication service, etc. (struck down by Supreme Court in Shreya Singhal v. union of India violating the freedom of speech guaranteed under Article 19(1)(a) of the Constitution of India)
66B. Punishment for dishonestly receiving stolen computer resource or communication device.
66C. Punishment for identity theft.
66D. Punishment for cheating by personation by using computer resource.
66E. Punishment for violation of privacy.
66F. Punishment for cyber terrorism.
67. Punishment for publishing or transmitting obscene material in electronic form.
67A. Punishment for publishing or transmitting of material containing sexually explicit act, etc., in
electronic form.
67B. Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form. 71. Penalty for misrepresentation.
72. Penalty for Breach of confidentiality and privacy.
72A. Punishment for disclosure of information in breach of lawful contract.
73. Penalty for publishing electronic signature Certificate false in certain particulars. Many prominent jurists have made attempts to define „Crime
1. Sir William Blackstone
In his 'Commentaries on Law of England', Sir William Blackstone
defined Crime as "an act committed or omitted in violation of Public
Law forbidding or commanding it" 1. As a public wrong
Sir William Blackstone defines crimes in two ways, in his work, first as,
“Committed or omitted act to violate of a „Public Law‟ avoiding or leading it”.
The violation of a „public law it would be only political offences and such
offences are only a part of the criminal law. If „public law is to denote
„positive‟ or „municipal laws it will be wide and cover all legal wrongs, but every
legal wrong is not a crime.
At a second stage Blackstone modified his definition as:
“A crime is violation of the public „rights and duties due to the whole
community, considered as a community”
Sergeant Stephen, while editing Blackstone's commentaries modified the
definition to some extent and his definition is:
“A crime is a violation of a right considered in reference to the evil tendency of
such violation as regards the community at large”. 2. As a moral wrong
The word crime has comes from the Greek statement „Krimos‟, which is the
same with the Sanskrit, word „Krama‟, meaning social order. So the word crime
is applied to those acts against the social order and are earnest of serious guilty
verdict.
The word crime has also its origin in a Latin word, meaning „to accuse‟ and a
Sanskrit word „kri‟(to do). Combining the modem meaning of both the roots,
crime is a „most validly accusable act‟.
Raffaele Garofalo defines crime in some sociological perspective in the
following words:
“An immoral and harmful act is Crime that is viewed as criminal by public
opinion, because it is an injury to the moral sense as is possessed by a community- a measure which is indispensable for the adaptation of the
individual society” In this definition Garofalo says that crimes are that acts, which society
cannot reject to recognise as wrong and which are redressible by penalty. He
takes into account crime means some act „considered as criminal by public
opinion. For example, immoral acts similar to lack of gratitude, hard
heartedness, cruel disregard for miseries of others, and yet immoral, do not
amount to crime. There are, equally, some harmless crimes like begging and
strolling, some crimes like consorting and possession of forbiddengoods, for
example, weapons, drugs, illegal imports, and goods unlawfully obtained, but
because social convenience requires. 3. As a conventional wrong
Edwin Sutherland, noted criminologist defines crime in terms of criminal
behaviour as:
“Criminal behaviour is an act in violation of criminal law. It is not the degree of
immorality, reprehensibility, or indecency of an act; it is not a crime unless it is
prohibited by criminal law. The criminal law is defined conventionally as a
body of specific rules regarding human conduct which has promulgated by
political authority, which apply by all members of the class to which the rules
referred and which are enforced by punishment which is administered by the
state, characteristics which distinguish the body of rules regarding human
conduct from other rules- politically, specificity, uniformity and penal
sanction”. 4. As a social wrong
The definition, form and concept of crime, can change with the time and
regimes and attitudinal scopes of society. Some crimes become obsolete and
some crimes assume new and broader scopes. Therefore, the definitions of
crimes depend on that situation and times. John Gillian has given a definition of
crime:
Crime is an act which harmful to society or that is to be socially harmful by a
group of people which has the power to enforce its beliefs, and that places such
act under the ban of positive penalties.”
In Soviet Russia crime has been defined in terms of socially dangerous acts.
“Commission or omission a socially dangerous act i.e. has provided by the
criminal law, which violates the state system or Soviet social, socialist property,
the social economics system, and the other rights of citizens, or any other
socially dangerous acts provided by the criminal law, which violates the
socialist legal order, shall be considered to be a crime.”
Roscoe Pound was the American Jurist submitted his theory of „Social Interest‟,
which is closely related to crime - oppression. His theory is on the postulation
of legal awareness of a living being is nothing but social awareness. His jurisprudence
is considered as „social engineering. Highlighting on the interest of life, liberty,
religion, security, general progress and social institutions with infringement and
dominance any others right is crimes.
(5) As a procedural wrong
Crime is procedural wrong, John Austin defines crime in the nature of
proceeding “A wrong which is pursued by the Sovereign or his subordinate is a crime
(public wrong). A wrong which is pursued at the discretion of the injured party
and his representatives is a civil wrong (private wrong)”
The present definition is not good with regard to a number of offences alike
offences of Adultery and of Criminal Elopement 15 except the complaint
prepared by the husband or the wife in respect of cruelty by Husband and
relative of Husband, or cognizance can be taken on the complaint of the parents
of wife only.
On the definition of Austin, Prof. Kenny has modified and prefers his own
definition:
“Crimes are wrongs whose sanction is punitive, and is in no way remissible by
any private person, but is remissible by the crown alone, if remissible at all.”
The present definition is not complete also. The definition may be possible to
remission by the crown, in spite of there are number of compoundable offences
are remissible by some gratification from the accused Ss. 320(1), 302(2),
Criminal Procedure Code, 1973. This definition crime has not defined
satisfactorily, in this respect Russel says:
“Criminal offences are basically the creation of the criminal policy adopted
from time to time by those sections of the community who are powerful, or
astute enough to safeguard their own security and comfort by causing the
Sovereign power in the state to repress conduct, which they feel may endanger
their position.” 6. As a legal wrong:
Much harm is both crime and civil wrongs, as for example, libel. Crime
inevitably continues in the present day context, created by government policy,
it becomes more difficult to define crime. Nevertheless, it is a broadly accurate
description to say that nearly every instance of crime presents all of the three
following characteristics: (i) The Sovereign power in the State desires to prevent, that which is
harm, by human conduct, (ii) The measures of prevention selected for the threat of punishment;
and
(iii) The legal proceedings of a special kind are employed to decide,
whether the person accused did in fact causes the harm, and is, according
to law, to be held legally punishable for doing so. Jurists define crime as “the government deems, any wrong which injurious to
public and punishes in a judicial proceeding on its own name” The present
definition of crime be determined by the law circulated by the government
from time to time. Any act any time become sacrament, if it is declared by the
state, and going on by the same notion, as soon as the state deems so the same
act ceases to be a crime.
Tappan In discussing crime is a legal wrong, the definition forwarded by the Paul
Tappan, which needs to be dispensed with some measure of detail.
Tappan defined crime as:
"An intentional act or omission in violation of criminal law committed without
any defence or justification and penalised by the law as felony or
misdemeanour."
From the earlier definitions, it may be said that a crime is an immoral to society
involving the breach of a legal wrong which has criminal consequences
attached to it i.e. prosecution by the State in the criminal court and the
possibility of punishment being imposed on the wrongdoer.
Crime is an act which defined by the law in harmony for the legal approach. If
the elements of crime indicated by statutory or case law are not present and it is
proved beyond a reasonable doubt a person may be acquitted for that crime.
Sir James Stephen
"Crime is an act forbidden by law and revolting to the moral sentiments of the
society".
Every person has been living with his natural rights, nobody can infringement
of others rights. But in everywhere we can see, listen and take experience that
there are running some in convenience with everybody, about property, affair
and family matter, so on. There are some right of person which has obtained by
the law as well as society to maintain smooth and good relation with each other.
If any person used to do any act against the rules of law, against the society,
against the public policy, which applicable to every person, it will be crime.
There is any crime and essential to stop or control it, as early as possible to avoid further consequences. Otherwise government authority will engage to
maintain the crime other than development of country, his mind will divert to
control on it, so, it will effect on parson ,society and consequently on
government. In the definition of Sir James Stephen emphasis has defined the
meaning of crime which is such which is forbidden by law, and may be
possible to effect on morality of society. Kenny:-
"Crimes are wrongs whose sanction is punitive and in no way remissible by an
private person, but is remissible by the Crown alone, if remissible at all"
About the fundamental principles of criminal administration of justice system
the researcher has tried to do study of criminality of person what is reason to do
any criminal act. There are causes of social, economic, mental, geographical
and political reason to crime. After any criminal activity of person he should be
come before the authority or crown to conclude whether he was responsible for
that crime or not, and should be give punishment to him. If there is any wrong
by the side of person, essential to sanction to him punishment and if he is not
responsible that criminal act, his punishment will be obtaining remission, but
his crime should be remissible. This definition does not cover compoundable
offences in which remission is in the hands of private individuals. Victimless Crime
For the crime there should be some elements such as intention, Mens Rea, act
or omission and injury, without its are not punishable under the law, such
offences have known as victimless crime i.e. drunkenness and such related
offences, sale and use of prohibited substances, vagrancy and begging,
soliciting, bestiality etc. are not cause any harm to any other person so this
categorised crimes are known as victimless. Homosexuality is also the
victimless crime in India as well as United Kingdom and many other European
countries when not committed in a public place. Whether the stated legality or
illegality of crimes is depends upon the morality and economic interests of the
community. The justification advanced for decriminalisation of these offences
is that use of non-criminal methods such as social service programmes etc. to
control their behaviour to help drug addicts or drug-traffickers or homosexuals
would perhaps be more helpful. Meaning of Justice
Justice is theory of the legal or philosophical, by which administered
fairness.
In every culture the concept of justice is different. Plato an Ancient
Greek philosopher was starting out early theory of justice in his work „The
Republic‟. Theory of divine command has argued by Advocates those justice
issues from God. Theorists John Locke has argued in the 17th century, for the
theory of natural law. Thinkers have argued in the social contract tradition that
justice is derived from the mutual agreement of everyone concerned. John
Stuart Mill has argued in the 19th century, that justice is what has the best
consequences. Theories of distributive justice are concerned with what is
distributed, between whom to be distributed, and how is the
proper distribution. Egalitarians thinker has argued that justice can only exist
within the coordinates of equality. John Rawls has used to show that justice is
an argument social contract , and especially distributive justice , is a form of
fairness. Like Nozick‟ theorists has argued that property rights-based justice
maximize in general wealth of an economic system and Property rights take a
deontological view of distributive justice. The punishment has concerned for
wrong doing with theories of retributive justice. Restorative justice also
sometimes called "reparative justice" which is an approach to justice focuses on
the needs of victims and offenders restoring what is good, and necessarily. Fundamental Elements Of Crime: There are four elements which go to constitute a crime, these are:-
· Human being
· Mens rea or guilty intention
· Actus reus or illegal act or omission
· Injury to another human being
Human Being- The first element requires that the wrongful act must be committed by a human being. In ancient times, when criminal law was largely dominated by the idea of retribution, punishments were inflicted on animals also for the injury caused by them, for example, a pig was burnt in Paris for having devoured a child, a horse was killed for having kicked a man. But now, if an animal causes an injury we hold not the animal liable but its owner liable for such injury.
So the first element of crime is a human being who- must be under the legal obligation to act in a particular manner and should be a fit subject for awarding appropriate punishment.
Section 11 of the Indian Penal Code provides that word ‘person’ includes a company or association or body of persons whether incorporated or not. The word ‘person’ includes artificial or juridical persons.
Mens Rea- The second important essential element of a crime is mens rea or evil intent or guilty mind. There can be no crime of any nature without mens rea or an evil mind. Every crime requires a mental element and that is considered as the fundamental principle of criminal liability. The basic requirement of the principle mens rea is that the accused must have been aware of those elements in his act which make the crime with which he is charged.
There is a well known maxim in this regard, i.e. “actus non facit reum nisi mens sit rea” which means that, the guilty intention and guilty act together constitute a crime. It comes from the maxim that no person can be punished in a proceeding of criminal nature unless it can be showed that he had a guilty mind.
Actus Reus [Guilty Act Or Omission] - The third essential element of a crime is actus reus. In other words, some overt act or illegal omission must take place in pursuance of the guilty intention. Actus reus is the manifestation of mens rea in the external world. Prof. Kenny was the first writer to use the term ‘actus reus’. He has defined the term thus- “such result of human conduct as the law seeks to prevent”.
Injury- The fourth requirement of a crime is injury to another person or to the society at large. The injury should be illegally caused to any person in body, mind, reputation or property as according to Section 44 of IPC, 1860 the injury denotes any harm whatever illegally caused to any person in body, mind, reputation or property. Stages Of A Crime If a person commits a crime voluntarily or after preparation the doing of it involves four different stages. In every crime, there is first intention to commit it, secondly, preparation to commit it, thirdly, attempt to commit it and fourthly the accomplishment. The stages can be explained as under-
1. Intention- Intention is the first stage in the commission of an offence and known as mental stage. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. But the law does not take notice of an intention, mere intention to commit an offence not followed by any act, cannot constitute an offence. The obvious reason for not prosecuting the accused at this stage is that it is very difficult for the prosecution to prove the guilty mind of a person.
2. Preparation- Preparation is the second stage in the commission of a crime. It means to arrange the necessary measures for the commission of the intended criminal act. Intention alone or the intention followed by a preparation is not enough to constitute the crime. Preparation has not been made punishable because in most of the cases the prosecution has failed to prove that the preparations in the question were made for the commission of the particular crime.
If A purchases a pistol and keeps the same in his pocket duly loaded in order to kill his bitter enemy B, but does nothing more. A has not committed any offence as still he is at the stage of preparation and it will be impossible for the prosecution to prove that A was carrying the loaded pistol only for the purpose of killing B.
Preparation When Punishable- Generally, preparation to commit any offence is not punishable but in some exceptional cases preparation is punishable, following are some examples of such exceptional circumstances-
· Preparation to wage war against the Government - Section 122, IPC 1860;
· Preparation to commit depredation on territories of a power at peace with Government of India- Section 126, IPC 1860;
· Preparation to commit dacoity- Section 399, IPC 1860;
· Preparation for counterfeiting of coins or Government stamps- Sections 233-235, S. 255 and S. 257;
· Possessing counterfeit coins, false weight or measurement and forged documents. Mere possession of these is a crime and no possessor can plead that he is still at the stage of preparation- Sections 242, 243, 259, 266 and 474.
3. Attempt- Attempt is the direct movement towards the commission of a crime after the preparation is made. According to English law, a person may be guilty of an attempt to commit an offence if he does an act which is more than merely preparatory to the commission of the offence; and a person will be guilty of attempting to commit an offence even though the facts are such that the commission of the offence is impossible. There are three essentials of an attempt:-
· Guilty intention to commit an offence;
· Some act done towards the commission of the offence;
· The act must fall short of the completed offence.
Attempt Under The Indian Penal Code, 1860- The Indian Penal Code has dealt with attempt in the following four different ways-
Completed offences and attempts have been dealt with in the same section and same punishment is prescribed for both. Such provisions are contained in Sections 121, 124, 124-A, 125, 130, 131, 152, 153-A, 161, 162, 163, 165, 196, 198, 200, 213, 240, 241, 251, 385, 387, 389, 391, 394, 395, 397, 459 and 460.
· Secondly, attempts to commit offences and commission of specific offences have been dealt with separately and separate punishments have been provided for attempt to commit such offences from those of the offences committed. Examples are- murder is punished under section 302 and attempt to murder to murder under section 307; culpable homicide is punished under section 304 and attempt to commit culpable homicide under section 308; Robbery is punished under section 392 and attempt to commit robbery under section 393.
Thirdly, attempt to commit suicide is punished under section 309.
Fourthly, all other cases [where no specific provisions regarding attempt are made] are covered under section 511 which provides that the accused shall be punished with one-half of the longest term of imprisonment provided for the offence or with prescribed fine or with both.
4. Accomplishment Or Completion- The last stage in the commission of an offence is its accomplishment or completion. If the accused succeeds in his attempt to commit the crime, he will be guilty of the complete offence and if his attempt is unsuccessful he will be guilty of an attempt only. For example, A fires at B with the intention to kill him, if B dies, A will be guilty for committing the offence of murder and if B is only injured, it will be a case of attempt to murder. MENS REA AND MOTIVE :- Motive is something which prompts a man to form an intention while intention is immediate mental condition . intention relates to means while motive relates to end. Motive is not a sine qua non (an essential condition) for bringing the offence home as against the accused but its only relevant on question of intention. If a man kills his starving family for want of food , believing that his family will move on to a better world . His intention is bad but motive is good. Law punishes intention not the motive. A man who dishonestly steals a bread in order to get away from starvation , and motivates himself to pay later for bread when his circumstances are alright . Is guilty of theft notwithstanding the motive. Supreme Court of India
Nathuni Yadav And Ors vs State Of Bihar And Anr on 20 December, 1996
Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impells a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck a note of caution in Reg v. Palmer (Shorthand Report at page 308 SCC May 1850; thus: "But if there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal courts that atrocious crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties". Though, it is a sound proposition that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental Condition existed in the mind of the assailant.
In Atley v. Slate of U.P., AIR (1955) SC 807 it was held "that is true, and where there is clear proof of motive for the crime, that lends additional support to the finding of the court that the accused was guilty but absence of clear proof of motive does not necessarily lead to the contrary conclusion," In .some cases, it may not be difficult to establish motive through direct evidence. While in some other cases inferences from circumstances may help in discerning the mental propensity of the person concerned. There may also be cases in which it is not possible to disinter the mental transaction of the accused which would have impelled him to act. No proof can be expected in all Cases as to now the mind of the accused worked in a particular situation. Sometimes, it may appear that the motive established is a weak one. That by itself is insufficient to lead to any inference adverse to the prosecution.
Difference between intention and motive :
In criminal law, the term intention is explained as the deliberate cause and known effort, to act in a particular manner which is not permitted by law. As against, the motive is defined as the implicit cause, which instigates a person to do or not to do something.
The intention of a person can be determined by the use of particular means and the circumstances, that resulted in the criminal offence. Conversely, the motive is the reason, that drives a person to do an act or refrain from acting in a specific manner.
Intention means to have in mind a fixed purpose to reach a desired objective , so it indicates that a man is consciously shaping his conduct to bring forth a specific event . Motive however is an emotion which impels a man to do a particular act.
While the intention is the expressly defined purpose of the crime, the motive is hidden or implied purpose although its relevant under section 8 of Indian evidence act , 1872.
When the intention of a person, is the element for affixing criminal liability, it must be proven beyond reasonable doubt. On the contrary, the motive is not the primary element for affixing culpability, so it need not be proven beyond reasonable doubt. Difference between knowledge and mens rea : Kesar Singh & Anr vs State Of Haryana on 29 April, 2008 Knowledge denotes a bare state of conscious awareness of certain facts in which the human mind might itself remain supine or inactive whereas intention connotes a conscious state in which mental faculties are roused into activity and summed up into action for the deliberate purpose of being directed towards a particular and specific end which the human mind conceives and perceives before itself. In Jai Prakash v. State (Delhi Administration) [(1991) 2 SCC 32], stating :
"...We may note at this state that 'intention' is different from 'motive' or 'ignorance' or 'negligence'. It is the 'knowledge' or 'intention' with which the act is done that makes difference, in arriving at a conclusion whether the offence is culpable homicide or murder. Therefore, it is necessary to know the meaning of these expressions as used in these provisions...
...The 'intention' and 'knowledge' of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the, weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the code designedly used the words 'intention' and 'knowledge' and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to 'knowledge', 'intention' requires something more than the mere foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end." In Sheo Shankar Singh v. State of Jharkhand & Anr., AIR 2011 SC 1403, while dealing with the issue of motive, this Court held as under:
“Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eye-witness account of the occurrence. That is because if the court upon a proper appraisal of the deposition of the eye- witnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely even if prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eye-witnesses is found unreliable or unworthy of credit, existence of a motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eye- witness account does not lend strength to the prosecution case or fortify the court in its ultimate conclusion. Proof of motive in such a situation certainly helps the prosecution and supports the eye witnesses. (See: Shivaji Genu Mohite v. The State of Maharashtra, AIR 1973 SC 55; Hari Shanker v. State of U .P. (1996) 9 SCC; and State of Uttar Pradesh v. Kishanpal and Ors., (2008) 16 SCC 73)”.
Kenny in "Outlines of Criminal Law" (17th Edition at page 31) has observed:
Intention: To intend is to have in mind a fixed purpose to reach a desired objective; the noun 'intention' in the present connection is used to denote the state of mind of a man who not only foresees but also desires the possible consequences of his conduct. Thus if one man throws another from a high tower or cuts off his head it would seem plain that he both foresees the victim's death and also desires it: the desire and the foresight will also be the same if a person knowingly leaves a helpless invalid or infant without nourishment or other necessary support until death supervenes. It will be noted that there cannot be intention unless there is also foresight, since a man must decide to his own satisfaction, and accordingly must foresee, that to which his express purpose is directed.
Again, a man cannot intend to do a thing unless he desires to do it. It may well be a thing that he dislikes doing, but he dislikes still more the consequences of his not doing it. That is to say he desires the lesser of two evils, and therefore has made up his mind to bring about that one.
Russell on Crime (12th Edition at Page 41) has observed:
"In the present analysis of the mental element in crime the word 'intention' is used to denote the mental attitude of a man who has resolved to bring about a certain result if he can possibly do so. He shapes his line of conduct so as to achieve a particular end at which he aims."
It can thus be seen that the 'knowledge' as contrasted with 'intention' signifies a state of mental realisation with the bare state of conscious awareness of certain facts in which human mind remains supine or inactive. On the other hand, 'intention' is a conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of achieving a conceived end. It means shaping of one's conduct so as to bring about a certain event. Therefore in the case of 'intention' mental faculties are projected in a set direction. Intention need not necessarily involve premeditation. Whether there is such an intention or not is a question of fact. Dishonestly and fraudulently : Dishonestly has been defined under section 24 and fraudulently in section 25. The classic definition of the word "fraudulently" is found in Steplien's History of the Criminal law of England, Vol. 2, at p. 121 and it reads "I shall not attempt to construct a definition which will meet every case which might be suggested, but there is little danger in saving that whenever the words "fraud" or intent to defraud" or "fraudulently" occur in the definition of a crime two elements at least are essential to the commission of the crime : namely, first, deceit or an intention to deceive or in some cases mere secrecy ; and secondly, either actual injury or possible injury or to a risk of possible 'injury by means of that deceit or secrecy. This intent is very seldom the only, or the principal, intention entertained by the fraudulent person, whose principal object in nearly every case is his own advantage. A practically conclusive test of the fraudulent character of a deception for criminal purposes is this : Did the author of the deceit derive any advantage from it which could not have been had if the truth had been known ? If so it is hardly possible that the advantage should not have had an equivalent in loss or risk of loss to someone else, and if so, there was fraud."
It would be seen from this passage that "'fraud" is made up of two ingredients, deceit and injury. The learned author also realizes that the principal object of every fraudulent person in nearly every case is to derive some advantage though such advantage has a corresponding loss or risk of loss to another. Though the author has not visualized the extremely rare situation of an advantage secured by one without a corresponding loss to another, this idea is persued in later decisions.
In Haycraft v. Creasy LeBlanc, observed (1) (1801) 2 East 92.
"by fraud is meant an intention to deceive; whether it be from any expectation of advantage to the party himself or from the ill-will towards the other is immaterial." This passage for the first time brings out the distinction between an advantage derived by the person who deceives in contrast to the loss incurred by the person deceived. Buckley. J., in Re London & Clobe Finance Corporation Ltd. (1) brings out the ingredients of fraud thus : "To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. Supreme Court of India
Dr. Vimla vs Delhi Administration on 29 November, 1962 Dr. Vimla purchased a car in the name of her minor daughter Nalini aged about 6 months. The price of tile car was paid by her. The transfer of the car was notified in the name ofNalini to the Motor Registration Authority. The insurance policy already issued was transferred in the name of Nalini after the proposal form was signed by Dr. Vimla. Subsequently, Dr. Vimla filed two claims on the ground that the car met with accidents. She signed the claim forms as Nalini. She also signed the receipts acknowledging the payment of compensation money as Nalini. Dr. Vimla and her
husband were prosecuted under sections 120 B, 419, 467 and 468 of the Indian Penal Code. Both the accused were acquitted by the Sessions Judge. The State went in appeal and the High Court convicted Dr. Vimla under s. 467 an 468 of the Indian Penal Code. Dr. Vimla came to Supreme Court by special leave. (below is the main principle which forms the benchmark for understanding the expression defraud)
To summarize : the expression "'defraud" inoslves two elements, namely, deceit and injury to the person deceived injury is something other than economic loss that is', deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non economic or non- pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. Supreme court held : "Dr. Vimla was guilty of deceit, for though her name was Vimla, she signed in all the relevant papers as Nalini and made the insurance company believe that her name was Nalini, but the said , deceit did not either secure to her advantage or cause any non-economic loss or injury to the insurance company. The charge does not disclose any such advantage or injury, nor is there any evidence to prove the same. The fact that Dr. Vimla said that the owner of the car who sold it to her suggested that the taking of the sale of the car in the name of Nalini would be useful for income-tax purposes is not of any relevance in the present case, for one reason, the said owner did not say so in his evidence and for the other, it was not indicated in the charge or in the evidence. In the charge framed, she was alleged to have defrauded the insurance company and the only evidence given was that if it was disclosed that Nalini was a minor, the insurance company might not have paid the money. But as we have pointed out earlier, the entire transaction was that of Dr. Vimla and it was only put through in the name of her made minor daughter for reasons best known to herself. On the evidence as disclosed, neither was she benefited nor the insurance company incurred loss in any sense of the term. In the result, we allow the appeal and hold that the appellant was not guilty of the offence under ss. 467 and 468 of the Indian Penal Code. The conviction and sentence passed on her are set aside. Fine, if paid, is directed to be refunded to the appellant, Appeal allowed."
Supreme Court of India
Union Of India & Ors vs Rabinder Singh on 29 September, 2011
It further noted that while the term `dishonestly' as defined under Section 24 of IPC, talks about wrongful pecuniary/economic gain to one and wrongful loss to another, the expression fraudulent is wider and includes any kind of injury/harm to body, mind, reputation inter-alia. The term injury would include non-economic/non-pecuniary loss also. This explanation shows that the term `fraudulent' is wider as against the term `dishonesty'. The Court summarized the propositions in paragraph 14 of the judgment in the following words:-
"14. To summarize: the expression "defraud" involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others In short, it is a non-economic or non- pecuniary loss........" Meghmala & Ors. v. G. Narasimha Reddy & Ors., (2010) 8 SCC 383 It is a settled legal proposition that where a person gets an order/office by making misrepresentation or playing fraud upon the competent authority, such order cannot be sustained in the eyes of the law as fraud unravels everything. "Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law". It is a trite that "Fraud and justice never dwell together"(fraus et jus nunquam cohabitant). Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. Fraud and deception are synonymous. "Fraud is an anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine". An act of fraud on court is always viewed seriously. Some differences between fraudulently and dishonestly : (i) Fraud involves deception while dishonestly does not. (ii) Wrongful gain and wrongful loss of a property is necessary for dishonestly but not for fraud. (iii) An act may be dishonest and yet not fraudulent. (iv) A dishonest intention is intention to cause loss of specified property belonging to a particular person. Fraudulently on other hand may refer to injury in respect of unspecified property as well , to unknown and unascertained person. Fradulently and dishonestly are jointly used as ingredients of offences under many section of IPC
an illustrative list : Section 209 , 246 , 247 , 415 , 422 , 423 , 464 , 471 and 496.
other sections where fraud is one of the main ingredients:
section 206, 207 , 208 , 210 , 239 , 240 , 242 , 243 , 246 to 253 , 261 , 264 to 266 , 415-420 , 421, 422, 423 , 424 , 463 to 471 , 474 , 477 , 477A and 496 etc.
Comments