Introduction to Indian Penal Code (IPC)

 Drafting of Indian Penal Code

  • The Indian Penal Code i.e IPC was drafted by the first Indian Law Commission constituted in 1834.

  • Lord Mcloed, Anderson and Millet were Commission members.

  • Its draft code of IPC was revised twice & then finally passed on October 6th , 1860.

  • It became operational from January 1st, 1862.

 Contents of I.P.C

   Indian Penal Code(IPC) mainly contains:

  • General penal law
  • Conditions of liabilities with respect to various offences
  • Definition of specific offences
  • Conditions for exemption from Criminal liability

 Concept of Crime

  I.P.C is nothing but law of crimes. It does not define crime, it rather uses the term ‘Offence’, defined in section 40.

  • Offence – As per Section 40 of IPC, “a thing made punishable by this code”

  • Till date we don’t  have a satisfactory definition of ‘crime’ that would include acts/omissions deemed to be criminal & at the same time exclude acts/omissions that are not criminal.

  • The concept of crime is subject to Spatial, temporal & societal variations .For example- Adultery was an offence in India but now it is not an offence.

In the case of Sevaka perumal vs. State of Tamilnadu, S.C 1991, The Supreme Court observed that crime is a social phenomenon which arises first when a state is organised, people setup rules, breaking of which was called CRIME.

Sir James StephensCrime is an act which is both Forbidden by law & Revolting to the moral sentiments of  the society.

 Essential Ingredients of Crime

There are five essential Ingredients of crime-

  1. PERSON(S)
  2. MENS REA
  3. ACTUS REUS
  4. INJURY
  5. OBJECT

  PERSON(S)

  • The first essential Ingredients of a crime is that it is committed by a person. According to Section 11 of IPC , The word ‘Person’ includes any  Company or Association or body of persons, whether Incorporated or not.

  •  The above definition is merely an inclusive one & not exhaustive.

  Liability of Corporations/Company

As far as question of criminal liability of a corporation is concerned, the view that prevailed earlier was that, a corporation does not entails any criminal liability because of the following reasons :

  • It is not a physical entity therefore it can’t be punished.
  • It has no mind of its own therefore no question of Criminal Intention arises.
  • Moreover, a corporation acts only through its agents / servants and since vicarious liability does not come within the purview of the law of crimes the question of criminal liability of the corporation does not arises.

BUT,

Viscount Haldare in Lennard C. Co Ltd. Vs Asiatic petroleum co. Ltd, 1915 Propounded his famous theory that is alter ego theory. As per this theory, even though a company or a Corporation is an abstract entity having no mind of its own , invariably there will be a person who will be directing the company for its actions. This person will be considered as the alter ego of the company to whom criminal liability can be attributed. “Therefore fault of the corporation is fault of the superior officers who are directing the will / mind of the corporation.”

This alter ego theory was finally extended to the field of criminal law in the case of R. VS haulage Ltd.

INDIAN POSITION

Earlier the notion was that a corporation would generally be liable only for those acts where no mens Rea is required and only fines are imposed. But in the case of:

State of Maharashtra VS Syndicate Transport Company Limited 1964 Bombay,

Bombay High Court held that a corporation could be prosecuted under section 420 (cheating), section 403 (criminal misappropriation of property) and section 406 (criminal breach of trust) of IPC because ‘PERSON’ as per section 11 of IPC includes even a Corporation. Apart from punishment by way of imposition of fine these offences entail imprisonment as well. The court further said that the company could not be indicted for offences which can only be committed by human being or for offences punishable only with imprisonment or corporal punishment and not fine. Barring these exceptions a Corporate body will be held liable for criminal acts or omissions.

Whether a company can be tried and punished for an offence where mandatory punishment is both fine and imprisonment??

The full bench of Delhi High Court in the case of:

Municipal corporation vs J.B bottling company 1975, held that a company didn’t enjoy immunity from prosecution and in a case like this it will be fine only. It further said that criminal liability is an imputed liability and not vicarious liability . So as the corporation itself can’t be punished the liability is to be imputed to its managers / agents who are responsible for conduct of its policy and business.

Eg. Section 17 of prevention of Food Adulteration Act 1954 it provides that every person who at the time of the commission of the offence was in charge for the conduct of business of the company’s / firm shall be deemed guilty. { Maggie case}

MENS REA

          Mens = mind      &     Rea = prohibited

         “Mens rea simply means guilty mind”

  • It has not been defined anywhere in the IPC or for that matter any other statute in India.
  • The literal meaning of mens rea is “guilty mind”.
  • It is for the prosecution to prove that there was “mens” of the accused, which was “Rea”.
  • Mens rea includes Intention, Recklessness & Knowledge while ‘Negligence’ is required in some offences.

Maxim related to Mens Rea

  • Actus non facit reum nisi mens sit reaAn act does not makes a person guilty without guilty mind

  • Actus me invito factus non est mens actusAn act done by me against my will is not my act

 

Position of Mens Rea in England

There is a presumption that mens Rea an even reputation or a knowledge of the wrongfulness of the act is an essential ingredient in every offence but the presumption is liable to be displaced “either by the words of the statute creating the offence or by the subject matters with which it deals” and both must be considered.

This emphatically asserted that mens rea is an essential ingredient in every Offence except in three cases :

  • Cases not criminal in any real sense but which in the public interest are prohibited under a penalty. Eg. Revenue acts.
  • Public nuisance
  • Cases criminal in form but which are really only a summary mode of enforcing a Civil right.

  • Brend vs wood 1946, Lord chief justice Goddard said that general principle of law of crimes is actus non facit reum nisi mens sit Rea.

Unless statute either expressly or by necessary implications rules out mens Rea as a constituent part of Crime, the Court should not find a man guilty unless he has a guilty mind.

  • In  R vs.Tolson, Mrs.Tolson was married to Mr. Tolson in 1880 and after one year in 1881 her husband deserted her . She made all possible enquiries about him and ultimately came to know that her husband had been killed in a ship-wreek. Therefore supposing herself to be a widow She married another man in 1887. She was prosecuted for the offence of bigamy.
  • The court of appeal by majority held that a Bonafide  belief at the time of second marriage is a good defence in an offence of bigamy.

  • The observation of the court in this case are not of Universal application and the courts have refused to apply them.

Position of Mens Rea in India

The Maxim actus non facit reum nisi mens sit Rea is applied to India also but not in strict sense.

State of Maharashtra vs. M.H George, 1965 S.C

On 24th November 1962, RBI placed some restrictions on the entry of gold into India thus superseding its earlier notification, gold can be bought into India if it was on a transit to a place outside India by providing that gold can be bought into India on a transit provided that such gold was declared in the manifest for transit in the same bottom cargo.

The accused left Zurich by plane on November 27 1962 and reached Bombay(on the way to manila) India Custom Officer recovered the  the gold from his jacket the plea of the accused was that  he had no  no mention  and that he had no knowledge  of the  RBI notification.

After considering the object and subject matter of statute {FERA 1947}, their lordship held that there was no scope for the invocation of the  doctrine of Mens Rea in this particular case. According to the provisions of the act  the very concept of bringing or sending would exclude an involuntary  bringing or sending . If the bringing into India was a conscious act the mere bringing constitutes the offence and no further mental condition is postulated as necessary to constitute an offence.

Generally offences created by the prevention of Food Adulteration Act ,weights and measures act are in terms of absolute prohibition & the offender is liable without proof of guilty knowledge.

In State of Gujarat vs. V.D pandey 1970 S.C It was held that the plain words of the statute are read subject to a presumption that no crime can be committed unless there is mens Rea has not been Ousted (बेदखल) by the particular enactment.

But , This rule has several exceptions.

So, “mens rea is an essential element of crime in every penal statute unless the same statute expressly or by necessary implication rules it out.”

 

Cases of strict liability (where mens rea is not an essential requisite)

  1. Socio-economic offences like offences under food adulteration act, drugs act, weights & measures act are in terms of absolute prohibition.
  2. Statutory offences like war against the state( sec. 121), sedition(sec. 124-A), counterfeiting of coins (sec.232), rape(sec.376) of IPC etc
  3. Public nuisance, libel, contempt of court
  4. Offences where the proceedings are criminal in nature but it is really a mode of enforcing a civil right. Eg. Traffic regulations,etc.

Actus reus

  • This is the third essential ingredient of crime.
  • Actus = act. & Reus = prohibited

          So, actus reus implies an act which is prohibited by law.

  • An act is not reus until & unless law prohibits it. Eg. Homicide( killing of a human being by a human being) is prohibited by law. But this is not an absolute rule. An executioner (hangman) who executes people convicted of death sentences even though commits a homicide but the same is not culpable. The reason being that his act is not prohibited by law rather he is legitimately required to carry out those death sentences.
  • Actus reus is constituted by the event and not by the activity which caused the event.

Injury

  • This is the fourth essential Ingredient that constitutes a crime.
  • The end result of any act prohibited by law must be an injury to another person or the society at large
  • Injury has been defined in sec 44 of IPC as: The word ‘Injury’ denotes any harm whatsoever illegally caused to any person in Body, mind, reputation or property.
  • So injury here simply means harm to other person or his property.
  • If by an act injury is not caused then that act will not be punishable.

 

Object

  • Object here means against whom the crime is committed.
  • This is the fifth essential Ingredient of crime.
  • The resultant injury of the crime causes harm to the person against whom the Crime is committed is the object here. Here the object may be an individual or the society as a whole.

 

Also read –

Role of intention, knowledge in IPC

Theft vs. Extortion

Mistake of fact and Mistake of law

Dowry Death -Meaning,Legal Provisions,Essentials & Case Laws

Can we cause death of a person in Private Defence?

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