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Mens rea and strict liability

Ignoratia facti doth excusat :

1.Mistake of fact -an erroneous mental condition or conception induced by ignorance , misapprehension of misunderstanding of truth and resulting in some act or omission done or suffered erroneously by one or both of the parties to a transaction but without its erroneous character being intended or known at the time . Under IPC , a mistake must be one of fact and not of law . Where through a mistake , a man , intending to do a lawful act ; does that which is unlawful the deed and the will will act separately and law may not penalise a man for such transgression . However , Where an act is clearly a wrong in itself and a person under a mistaken apprehension commits that act , he will be guilty of a criminal offence . Thus , a burglar cannot escape punishment by saying he entered a wrong house through mistake or he intended to rob another man not the victim . Nor can a murderer be heard to say that deceased was not his intended victim .

2.Ignorantia juris non excusat or ignorantia legis neminem excusat (Latin for "ignorance of the law excuses not" and "ignorance of law excuses no one" respectively) is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely because one was unaware of its content.

Mistake of law - It happens when a party having full knowledge of the facts comes to an erroneous conclusion as to their legal effects . Mistake of law in criminal cases is no defence. Mistake of law ordinarily means mistake as to existence or otherwise of any law on a relevant subject as well as a mistake as to what law is.

Mens Rea :

It is a state of mind indicating culpability (guilty intention) which is required by statute as an element of crime.

Doctrine of mens rea is incorporated in two ways in IPC :

The provision of IPC itself states the necessary element of state of mind by usage of words such as : Intentionally , knowingly , voluntarily , fraudulently an dishonestly.

Secondly , it may have been incorporated in provisions relating to general exceptions.

Mens rea must extend to all three parts of an act viz , (i) An act or omission , (ii) the circumstances , (iii) the consequences.

In Halsbury's Laws of England, 3rd edn. Vol. 10, in para, 508, at p. 273, the following passage appears:

"A statutory crime may or may not contain an express definition of the necessary state of mind. A statute may require a specific intention, malice, knowledge, wilfulness. or recklessness. On the other hand, it may be silent as to any requirement of mens rea, and in such a case in order to determine whether or not mens rea is an essential element of the offence, it is necessary to look at the objects and terms of the statute." This passage also indicates that the absence of any specific mention of a state of mind as an ingredient of an offence in a statute is not decisive of the question whether mens rea is an ingredient of the offence or not: it depends upon the object and the terms of the statute.

So too, Archbold in his book on "Criminal Pleading, Evidence and Practice", 35th edn., says much to the same effect at p. 24 thus:

"It has always been a principle of the common law that mens rea is an essential element in the commission of any criminal offence against the common law In the case of statutory offences it depends on the effect of the statute...... There is a presumption that mens era is an essential ingredient in a statutory offence, but this presumption is liable to be displaced either by the works of the statute creating the offence or by the subject matter with which it deals."

The leading case on the subject is Sherras v. De Rutzen(1). Section 16(2) of the Licensing Act, 1872, prohibited a licensed victualler from supplying liquor to a police constable while on duty. It was held that section did not apply where a licensed victualler bona fide believed that the police officer was off duty Wright J., observed "There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, isan essential ingredient in every offence; but thatpresumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered."

Wills J. in R. v. Tolson :

"Although, prima facie and as a general rule, there must be a mind at fault before there can be a crime, it is not an inflexible rule, and a statute may relate to such a subject-matter and may be so framed as to make an act criminal whether there has been any intention to break the law or otherwise to do wrong or not".

Situations where mens rea is not essential (Strict liability)

Common law at earliest point of time presumed the element of mens rea even where the statute never prescribed it .

Sherras v. De Rutzen (1865) 1 QB 918 - held that although , mens rea , an evil intention or knowledge of a wrongful act is an essential ingredient of every offence , there are certain limited and exceptional classes of offences which are outside the rule.

In R v. prince for the first time literal interpretation of penal statute was done rejecting the underlying idea of mens rea.

Regina v. Prince, L.R. 2 C.C.R. 154 (1875), However , later the courts in some held the mens rea necessary for criminal liability should be required for the elements central to the wrongfulness of the act, and that strict liability should apply to the other elements of the statute, such as the believed age of an abductee being irrelevant. In this case accused was charged for kidnapping a minor girl , his plea of honest belief that the girl was not a minor was rejected.

There are some cases of absolute or strict liability which mandate a person to be punished even though he lacks mens rea.

1. Mens rea is not an essential ingredient in respect of five offences in IPC : Section 121 , 124A , 359 and 363 (kidnapping and abduction) and section 232 (counterfeiting of coins).

2. When a statute imposes strict liability , then presence or absence of a guilty mind is irrelevant.

Such as in matters concerning public health , public safety and social welfare causes , strict liability is imposed. Illustration : Motor vechicles Act , The Arms Act , Narcotics Drug and Psychotropic Substances Act , Public Liability Inusrance Act etc.

Underlying principle of justification of such offences is pointed out by Roscoe Pound :

"Statutory crimes express the needs of the society . Such statutes are not meant to punish vicious will but to put pressure on the thoughtless and inefficient to do their whole duty in interest of public health , safety or morals"

Such offences are listed with a view to stamp out evil from the society and also that an offender , whether he knows about the offence or not , should not be permitted to take shelter of mens rea or lack of true knowledge.

3. When its difficult to prove mens rea or where penalties are petty fines an where statute has done away with the necessity of mens rea on basis of expediency.

4. Public nuisance is another exception to doctrine of mens rea .

5. Cases which are a summary mode of enforcing a civil liability in a criminal law form .Such as section 138 of Negotiable Instruments Act.

6. Strict liability is enforced on matters also where the plea of ignorance of law is taken . As ignorance of law is no excuse.

In Mousell Brothers v. London and North-Western Railway([1) [1917] 2 K.B.D. 836 at 844'), Viscount Reading C.J., dealing with a case under the Railways Clauses Consolidation Act, 1845, observed as follows :--

"Prima facie, then, a master is not to be made criminally responsible for the acts of his servant to which the master is not a party. But it may be the intention of the Legislature, in order to guard against the happening of the forbidden thing, to impose a liability upon a principal 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. Acts done by the servant of the licensed holder of licensed premises render the licensed holder in some instances liable, even though the act was done by his serv- ant without the knowledge of the master. Under the Food and Drugs Acts 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.

Safeguards against strict liability :

Ravula Hariprasada Rao vs The State on 19 March, 1951

Unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of the crime, a person should not be found guilty of an offence against

the criminal law unless he has got a guilty mind.

Supreme Court of India

State Of Maharashtra vs Mayer Hans George on 24 August, 1964

Facts :

In this case a German smuggler, left Zurich by plane on 27th November 1962 with 34 kilos of gold concealed on his person to be delivered in Manila. The plane arrived in

Bombay on the 28th but the respondent did not come out of the plane. The Customs Authorities examined the manifest of the aircraft to see if any gold was consigned by any

passenger, and not finding any entry they entered the plane, searched the respondent, recovered the gold and charged him with an offence under ss. 8(1) and 23(1-A) of the Foreign

Exchange Regulation Act (7 of 1947) read with a notification dated 8th November 1962 of the Reserve Bank of India which was published in the Gazette of India on 24th November.

The respondent was convicted by the Magistrate, but acquitted by the High Court on appeal. In the appeal by the State to the Supreme Court, the respondent sought to support the judgment

of the High Court by contending that : (i) Mens rea was an essential ingredient of the offence charged and as it was not disputed by the prosecution that the respondent was not aware of the notification of the Reserve Bank, he could not be found guilty,

Supreme court held :

"The presumption is that the statute or statutory instrument can be effectively enforced only if those in charge of the relevant activities are made responsible for seeing that they are complied with. When such a presumption is to be inferred, it displaces the ordinary presumption of mens rea." Reference was then made to legislation regulating sale of food and drink and he then proceeded to state :

"It is not enough merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended. It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. That means that there must be something he can do, directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the regulations. Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim."

Summarizing accepted propositions in this case where :

1 - Unless a statute either clearly or by necessary implication rules out mens rea as the constituent part of crime , an accused should not be found guilty unless he has a guilty mind.

2. Question of necessary implication is to be determined by the object of statute . strict liability would be implied , if the very object of the statute would be defeated by reading into it the element of mens rea.

3. Mere fact that object of statute is to promote public welfare or curb a grave social evil , by itself is not enough to exclude mens rea.

4. The maxim ignorance of law is no excuse does not apply to delegated legislation when there is no provision for publication of the order to enable a person to find out by appropriate inquiry what the law is.

In this case majority of the judges spoke that object of the act would be defeated by reading into it the necessary constituent of mens rea.

In R v. St. Margaret's Trust Ltd (1958) 2 All ER 289 - Mens rea was justifiably excluded . IN this case the company company innocently transgressed upon the credit agreement order meant to control inflation in british economy. The company was held liable.

Inder Sain v. State of punjab (1973) 2 SCC 372 - A case under Opium Act , 1978 mens rea was held excluded .

In Indo China steam navigation co. v. jasjit singh AIR 1964 SC 114 - Under the offences in SeaCustoms Act , 1878 , mens rea was excluded.

Nathulal vs State Of Madhya Pradesh on 22 March, 1965

The appellant was a dealer in foodgrains at Dhar in Madhya Pradesh. He was prosecuted in the Court of the Additional District Magistrate, Dhar, for having in stock 885 maunds and 21/4 seers of wheat for the purpose of sale without a licence and for having thereby committed an offence under Section 7 of the Essential Commodities Act, 1955 (Act X of 1955), hereinafter called the Act. The appellant pleaded that he did not intentionally contravene the provisions of the said section on the ground that he stored the said grains after applying for a licence and was in the belief that it would be issued to him. One day food inspector checked his godowns and found food stored without any licence .

Supreme Court held : How to disprove mens rea has been succinctly stated in Halsbury's Laws of England, 3rd Edition, Col. 10, at p. 288, thus:

"When the existence of a particular intent or state of mind is a necessary ingredient of the offence, and prima facie proof of the existence of the intent or state of mind has been given by the prosecution, the defendant may excuse himself by disproving the existence in him of any guilty intent or state of mind, for example, by showing that he was justified in doing the act with which he is charged, or that he did it accidentally, or in ignorance, or that he had an honest belief in the existence of facts which, if they had really existed, would have made the act an innocent one. The existence of reasonable grounds for a belief is evidence of the honesty of that belief"

object of the Act, namely, to control in general public interest, among others, trade in certain commodities, it cannot be said that the object of the Act would be defeated if mens rea is read as an ingredient of the offence. The provisions of the Act do not lead to any such exclusion. Indeed, it could not have been the intention of the Legislature to impose heavy penalties like imprisonment for a period upto 3 years and to impose heavy fines on an innocent person who carries on business in an honest belief that he is doing the business in terms of the law. Having regard to the scope of the Act it would be legitimate to hold that a person commits an offence under Section 7 of the Act if he intentionally contravenes any order made under Section 3 of the Act. So construed the object of the Act will be best served and innocent persons will also be protected from harassment.

Even though appellant contravened the provision of the act but his requisite intention was lacking to prove the offence against him . His conviction was set aside. (after this case an amendment was brought to section 7 of Essential commodities act and it introduced strict liability in the section)

In Swastik Oil Industries v. State, (Special Criminal Application) 1978 (19) Gujarat Law Reporter 117.

In that case, M/s. Swastik Oil Industries, a licencee under the Gujarat Groundnut Dealers Licensing Order, 1966 was found to be in possession of 397 tins of groundnut oil in violation of the conditions of the licence and the provisions of the Licensing Order. Consequently, the Collector ordered confiscation of 100 tins of groundnut oil from out of the 397 tins under Sec. 6(1) of the Essential Commodities Act. The firm was held liable even though there was a bonafide mistake on part of the firm.

Supreme Court of India

State Of Madhya Pradesh vs Narayan Singh & Ors on 25 July, 1989

Essential Commodities Act, 1955: Sections 3 & 7 (as

amended by Act 36 of 1967)--Issue -Whether it includes

unintentional contravention?

The respondents who were lorry drivers, cleaners and coolieware carrying fertiliser ags in trucks from Indore (Madhya Pradesh) to Maharashtra. They were intercepted at a

Sales Tax Barrier near the border of Maharashtra State. The documents seized from the lorry drivers contained the in- voices and other records, but did not include permits issued

under the Fertilisers (Movement Control) Order, 1973. Conse quently, they were prosecuted under the Fertiliser (Movement Control) Order, 1973 read with sections 3 and 7 of the

Essential Commodities Act, 1955 for exporting fertilisers from Madhya Pradesh to Maharastra without a valid permit.

The Trial Court acquitted the respondents holding that:

(i) the prosecution had failed to prove mens rea on the part

of the respondents,

and (ii) the act of transportation of

the fertiliser bags in trucks by the respondents constituted

merely preparation and not attempted commission of the


The words used in section 7(1) are "if any person contravenes whether knowingly, intentionally or otherwise any Order made under section 3". The section is

comprehensively worded so that it takes within its fold not only contraventions done knowingly or intentionally but even otherwise, i.e., done unintentionally. The element of mens rea in export of fertiliser bags without a valid permit is therefore not a necessary ingredient for convicting a person for contravention of an order made under section 3 if the factum of export or attempt to export is established by the evidence on record.

The crucial words "whether knowingly, intentionally or otherwise" were inserted in section 7 in order to prevent persons committing offences under the Act escaping punishment on the plea that the offences were not committed deliberately. The amendment was brought about in 1967 in order to achieve the avowed purpose and object of the legislation.

In Sarjoo Prasad v. The State of U.P., [1961] 3SCR 324, it was contended that a servant who sold food on behalf of his employer was not liable unless it was known that he has done it with knowledge that the food was adulterated. This court held that s.7 of the Act enjoins everyone whether an employer or a servant not to sell adulterated food and anyone who contravenes this provision is punishable under s. 16 without proof of mensrea. This court repelled the argu- ment that the legislature could not have intended, having regard to the fact that large majority of servants in the shops which deal in food are illiterate to penalise servants who are not aware of the true nature of the article sold. The intention of the legislature must be gathered from the words used in the statute and not by any assumption about the capacity of the offenders to appreciate the gravity of the acts done by them. There is also no warrant for the assumption that the servants employed in shops dealing in food stuff are generally illiterate. In the interest of the public health, the Act was enacted prohibiting all persons from selling adulterated food. In the absence of any provi- sion, express or necessarily implied from the context, the courts will not be justified in holding that the prohibition was only to apply to the owner of the shop and not to the agent of the owner who sells adulterated food.

This view was reiterated in Ibrahim Haji Moideen & Anr. v. Food Inspector' & Anr., (1976) 2 All India Prevention of Food Adulteration Cases 66 - Supreme court held that for the purpose of conviction under charge on which A-2 was tried. it was immaterial whether he was an agent or a partner of A-1. Once it is proved that he sold the adulterated articles, he was liable to be convicted under s. 16(1) read with s.7 of the Act. The contention that it is only the owner of the shop that could be convicted was held to be wholly an unsustainable contention.

The Act is a welfare legislation to prevent health hazards by consuming adulterated food. The mensrea is not an essential ingredient. It is a social evil and the Act pro- hibits commission of the offences under the Act. The essen- tial ingredient is sale to the purchaser by the vendor. It is not material to establish the capacity of the person vis-a-vis the owner of the shop to prove his authority to sell the adulterated food exposed for sale in the shop. It is enough for the prosecution to establish that the person who sold the adulterated article of food had sold it to the purchaser (including the Food Inspector) and that Food Inspector purchased the same in strict compliance with the provisions of the Act. (State Of Orissa vs K.Rajeshwar Rao 1992 AIR 240 reiterates a similar principle).

Corporate liability of a company :

in Corpus Juris Secundum, para 1363 it has been observed as under:-

"A corporation may be criminally liable for crimes which involve a specific element of intent as well for those which do not, and, although some crimes require such a personal, malicious intent, that a corporation is considered incapable of committing them, nevertheless, under the proper circumstances the criminal intent of its agent may be imputed to it so as to render it liable, the requisites of such imputation being essentially the same as those required to impute malice to corporations in civil actions."

The Courts in England have emphatically rejected the notion that a body corporate could not commit a criminal offence which was an outcome of an act of will needing a particular state of mind. The aforesaid notion has been rejected by adopting the doctrine of attribution and imputation. In other words, the criminal intent of the "alter ego" of the company / body corporate, i.e., the person or group of person that guide the business of the company, would be imputed to the corporation. It may be appropriate at this stage to notice the observations made by the MacNaghten, J. in the case of Director of Public Prosecutions Vs. Kent and Sussex Contractors Ltd.36:

"A body corporate is a `person' to whom, amongst the various attributes it may have, there should be imputed the attribute of a mind capable of knowing and forming an intention -- indeed it is much too late in the day to suggest the contrary. It can only know or form an intention through its human agents, but circumstances may be such that the knowledge of the agent must be imputed to the body corporate. Counsel for the respondents says that, although a body corporate may be capable of having an intention, it is not capable of having a criminal intention. In this particular case the intention was the intention to deceive. If, as in this case, the responsible agent of a body corporate puts forward a document knowing it to be false and intending that it should deceive, I apprehend, according to the authorities that Viscount Caldecote, L.C.J., has cited, his knowledge and intention must be imputed to the body corporate."

The principle has been reiterated by Lord Denning in the case of H.L.Bolton (Engg.) Co. Ltd. Vs. T.J.Graham & Sons in the following words:-

"A company may in many ways be likened to a human body. They have a brain and a nerve centre which controls what they do. They also have hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company, and control what they do. The state of mind of these managers is the state of mind of the company and is treated by the law as such. So you will find that in cases where the law requires personal fault as a condition of liability in tort, the fault of the manager will be the personal fault of the company. That is made clear in Lord Haldane's speech in Lennard's Carrying Co. Ltd. Vs. Asiatic Petroleum Co. Ltd. (AC at pp. 713, 714). So also in the criminal law, in cases where the law requires a guilty mind as a condition of a criminal offence, the guilty mind of the directors or the managers will render the company themselves guilty."

a corporation is virtually in the same position as any individual and may be convicted of common law as well as statutory offences including those requiring mens rea. The criminal liability of a corporation would arise when an offence is committed in relation to the business of the corporation by a person or body of persons in control of its affairs. In such circumstances, it would be necessary to ascertain that the degree and control of the person or body of persons is so intense that a corporation may be said to think and act through the person or the body of persons. The position of law on this issue in Canada is almost the same. Mens rea is attributed to corporations on the principle of `alter ego' of the company.

So far as India is concerned, the legal position has been clearly stated by the Constitution Bench judgment of this Court in the case of Standard Chartered Bank Vs. Directorate of Enforcement On a detailed consideration of the entire body of case laws in this country as well as other jurisdictions, it has been observed as follows:

"There is no dispute that a company is liable to be prosecuted and punished for criminal offences. Although there are earlier authorities to the effect that corporations cannot commit a crime, the generally accepted modern rule is that except for such crimes as a corporation is held incapable of committing by reason of the fact that they involve personal malicious intent, a corporation may be subject to indictment or other criminal process, although the criminal act is committed through its agents." Supreme Court also rejected the submission that a company could avoid criminal prosecution in cases where custodial sentence is mandatory. Upon examination of the entire issue, it is observed as follows:-

" In the case of Penal Code offences, for example under Section 420 of the Indian Penal Code, for cheating and dishonestly inducing delivery of property, the punishment prescribed is imprisonment of either description for a term which may extend to seven years and shall also be liable to fine; and for the offence under Section 417, that is, simple cheating, the punishment prescribed is imprisonment of either description for a term which may extend to one year or with fine or with both. If the appellants' plea is accepted then for the offence under Section 417 IPC, which is an offence of minor nature, a company could be prosecuted and punished with fine whereas for the offence under Section 420, which is an aggravated form of cheating by which the victim is dishonestly induced to deliver property, the company cannot be prosecuted as there is a mandatory sentence of imprisonment.

Next in line of important case law comes Iridium india telecom v. Motorola case which reiterated the position: where the Supreme Court of India ) held that the corporations can no longer claim immunity from criminal prosecution on the ground that they are incapable of possessing the necessary mens rea for the commission of criminal offences.

In this Judgment it was held by the Hon’ble Supreme Court that a corporation is virtually in the same position as any individual and may be convicted of common law as well as statutory offences including those requiring mens rea. The criminal liability of a corporation would arise when an offence is committed in relation to the business of the corporation by a person or body of persons in control of its affairs and relied on the ratio in Standard Chartered Bank Case.

Iridium India Telecom Ltd vs Motorola Incorporated & Ors on 20 October, 2010

"As the company cannot be sentenced to imprisonment, the court cannot impose that punishment, but when imprisonment and fine is the prescribed punishment the court can impose the punishment of fine which could be enforced against the company. Such a discretion is to be read into the section so far as the juristic person is concerned. Of course, the court cannot exercise the same discretion as regards a natural person. Then the court would not be passing the sentence in accordance with law. As regards company, the court can always impose a sentence of fine and the sentence of imprisonment can be ignored as it is impossible to be carried out in respect of a company. This appears to be the intention of the legislature and we find no difficulty in construing the statute in such a way. We do not think that there is a blanket immunity for any company from any prosecution for serious offences merely because the prosecution would ultimately entail a sentence of mandatory imprisonment. The corporate bodies, such as a firm or company undertake a series of activities that affect the life, liberty and property of the citizens. Large-scale financial irregularities are done by various corporations. The corporate vehicle now occupies such a large portion of the industrial, commercial and sociological sectors that amenability of the corporation to a criminal law is essential to have a peaceful society with stable economy.

We hold that there is no immunity to the companies from prosecution merely because the prosecution is in respect of offences for which the punishment prescribed is mandatory imprisonment (sic and fine). "

In the recent judgment of C.B.I. vs. M/s. Blue –Sky Tie-up Limited & Ors. (2012 cri lj 1216 ) the Supreme Court reiterating the position of law held that companies are liable for prosecution of criminal offences and fines may be imposed on the companies.

territorial jurisdiction and territorial waters :

Referring to article 1 and article 297 of the Constitution and Maritimes Zones Act 1976 the territorial waters are extended Upto 12 nautical miles.

Section 4 of IPC :

Extradition procedure in India is governed by Extradiction act of 1962 .

State Of West Bengal vs Jugal Kishore More & Anr on 10 January, 1969

Extradition is the surrender by one State to another of a person desired to be dealt with for crimes of which he has been accused or convicted and which are justiciable in the courts of the other State. Surrender of a person within the State to another-State-whether a citizen or an alien-is a political act done in pursuance of a treaty or an arrangement ad hoc. It is founded on the broad principle that it is in the interest of civilized communities that crimes should not go unpunished, and on that account it is recoginised as a part of the comity of nations that one State should ordinarily afford to another State assistance towards bringing offenders to justice. The law relating to extradition between independent States is based on treaties. But the law has operation national as well as international It governs international relationship between the sovereign States which is secured by treaty obligations. But whether an offender should be handed over pursuant to a requisition is determined by the domestic law of the State on which the requisition is made. Though extradition is granted in implementation of the international commitments of the State, the procedure to be followed by the Courts in deciding whether extradition should be 'granted and on what terms, is determined by the municipal law.

003. Mens rea and strict liability
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