RESEARCH ON:
LEGAL MAXIMS ASSOCIATED WITH CRIMINAL LAW
CONTENTS
[Link]
LEGAL MAXIM Page No.
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1. Crimen Trahit Personam 2
2. Actus curiae neminem gravabit 3
3. In Extremis 4
4. Doli incapax 4-5
5. Necessitas non habet legem 6
6. Respondeat superior 6-7
7. Furiosus furore suo punier 7
8. Qui peccat ebrius luat sobrius 8
9. De minimis non curat lex 9
10. Actus me invito factus non est mens actus 10
SUBMITTED BY:
NEHA SHARMA
1. “Crimen Trahit Personam”
→ DEFINITION:
The literal meaning of this maxim is that – The crime carries the person.
This means that the commission of the crime give the courts of the place, jurisdiction over the
person or the offender. For example, A commits some crime in Delhi. Now the Delhi court
will have the jurisdiction to try the case of A.
Section 2 of IPC relates with this maxim, which is punishment of offences committed within
India (Interterritorial Jurisdiction).
→ CASE LAW:
“Kubic Dariusz v Union of India”
In this case Mr. Kubic Dariusz, a Polish national, holding a Polish passport arriving Calcutta
by air from Singapore via Bangkok was arrested on 29.4.1989 under section 104 of
the Customs Act, by the officers of the Customs Department attached to Calcutta Airport, on
the ground that he was carrying in his possession foreign gold weighing about 70 tolas.
The SC used this legal maxim in this case in Para 22 as follows:
“Preventive detention of a foreign national who is not resident of the country involves an
element of international law and human fights and the appropriate authorities ought not to be
seen to have been oblivious of its international obligations in this regard. The universal
declaration of human fights include the fight to life, liberty and security of person, freedom
from arbitrary arrest and detention…..In this context it may not be out of place to bear in
mind that the fundamental rights guaranteed under our Constitution are in conforming line
with those in the Declaration & The Covenant on Civil and Political Rights and the Covenant,
Economic, Social and Cultural Rights to which India has become a party by ratifying
them. Crimen Trahit personam. The crime carries the person. The commission of a crime
gives the court of the place where it is committed jurisdiction over the person of the offender.
Legal relations associated with the effecting of legal aid on criminal matters is governed in
the international field either by the norms of multilateral international conventions relating to
control of crime of an international character or by special treaties concerning legal
cooperation. Smuggling may not be regarded as such a crime.”
2. “Actus curiae neminem gravabit”
→ DEFINITION:
It’s a Latin expression which means “the act of the Court shall prejudice no one”.
The Courts act through their Orders. This expression is based on the elementary legal
principle that Courts (including Tribunals) exists for dispensation of justice, and whenever it
is brought to their knowledge that a party has suffered due to the “mistake” of the Court, the
Courts should forthwith, after satisfying itself that it has committed a “mistake”, rectify the
mistake by reviewing / recalling or rectifying its said Order. This expression is founded on
the principle that a wrong order should not be perpetuated by keeping it alive and adhering to
it. The legal maxim cannot operate in a vacuum. It has to get the sustenance from the facts.
→ CASE LAW:
“NEERAJ KUMAR SAINY AND OTHERS V. STATE OF U.P. AND OTHERS - LNIND 2017
SC 132 (2017) 14 SCC 136AIR 2017 SC 1524LNIND 2017 SC 132”
Hon’ble Justice Deepak Mishra held in this case:-
“One cannot indulge in luxury of lethargy, possibly nurturing the feeling that forgetting is a
virtue, and thereafter, when the time has slipped through, for it waits for none, wake up and
take shelter under the maxim ‘actus curiae neminem gravabit’. It is completely
unacceptable.”
In “Atma Ram Mittal v. Ishwar Singh Punia” , in the context of interpretation of
Section 13 (1) in juxtaposition with Section 1 (3) of the Haryana Urban (Control of Rent and
Eviction) Act, 1973, adopting the purposive interpretation ruled:-
It is well-settled that no man should suffer because of the fault of the court or delay in the
procedure. Broom has stated the maxim actus curiae neminem gravabit an act of court
shall prejudice no man. Therefore, having regard to the time normally consumed for
adjudication, the ten years exemption or holiday from the application of the Rent Act would
become illusory, if the suit has to be filed within that time and be disposed of finally. It is
common knowledge that unless a suit is instituted soon after the date of letting it would never
be disposed of within ten years and even then within that time it may not be disposed of.
3. “In Extremis”
→ DEFINITION:
The literal meaning of this maxim is- in extreme.
In extreme circumstances. Often used to refer to "at the point of death."
→ CASE LAW:
“COMMON CAUSE A REGD SOCIETY VERSUS UNION OF INDIA AND
ANOTHER LNIND 2018 SC 87”
In this case there was the reference of this maxim:
...The law, however, does recognize that a patient has a right to refuse to be treated, even
when he is in extremis, provided he is in an adult and capable of giving consent. Compliance
with the patients wishes in such circumstances is not the same as voluntary euthanasia.
Where, however, the patient is incapable of giving consent, such as when he is in a coma, a
constructive consent is presumed and the doctor is required to exercise reasonable care in
applying ordinary means to preserve the patients life. However, he is not allowed to resort to
extraordinary care especially where the patient is not expected to recover from the comatose
state...
4. “Doli Incapax”
→ DEFINITION:
Doli incapax means incapable of crime forming a defence for children that a child is
incapable of crime.
The basis of the presumption in doli incapax lies in the theory of Criminal responsibility.
Theory has been built upon the theory that a person should be held criminally responsible
only for acts he intends to commit. According to the English Law a child below the age of ten
years is considered as doli incapax. In Germany and Italy a child below thw age of 14 is
considered as doli incapax and Philipines a child below 9 years.
In India, criminal law also acknowledges an age line below which children are not truly
capable of crime. Below the age of 7, the Indian Criminal Procedure considers that children
are incapable of having the required cognitive and moral process to commit a crime. This is
absolute immunity. Between the age of 7 and 12, the CrPC provides for presumption of
innocence in favour of children, but if the prosecution can prove and provide evidence for the
contrary then the child can be prosecuted. From 14 to 18 years a child is liable only if he has
an insight into both the legality and punishability of the act. A minor can be tried as an adult
only when a general test is done to ascertain whether the child had adequate understanding of
the consequences of his actions.
Doli incapax finds its importance in Section 82 and 83 of the Indian Penal Code and in the
Juvenile Justice Act in India.
→ CASE LAW:
“KAKOO VERSUS THE STATE OF HIMACHAL PRADESH LNIND 1976 SC 65”
In this case Kakoo who was of thirteen years had committed rape on the child of 2 years and
was sentenced to 4 years of rigorous imprisonment by the trial court and the decision was
upheld by the High Court. The defence counsel pleaded defence under section 82 and (Even a
child between seven and twelve who may not have attained sufficient maturity of
understanding to entertain a criminal intent (doli incapax), is presumed to be incapable of
committing an offence) 83 of the Indian Penal Code. This took place in 1976 when laws for
juvenile and child delinquents were not fully developed and Himachal Pradesh did not have
any enactment in force at the time.
The court however stated, “Taking into account all the circumstances of the case. we are of
opinion that the ends of justice will be served by reducing the sentence of the appellant to one
year’s rigorous imprisonment and a fine of Rupees 2,000/-, and in default of payment of fine,
to suffer six months’ further rigorous imprisonment. The appellant shall be detained
separately from adult prisoners. He should preferably be detained in a Reformatory School, if
any, for the said period. The fine, if realised, shall be paid as compensation to Shrimati
Parmeshwari Devi, the mother of the victim baby.”
5. “Necessitas non habet legem”
→ DEFINITION:
The literal meaning of this maxim is that -Necessity has no law.
Necessitas non habet legem is an old age maxim which means necessity knows no law. A
person may sometimes have to succumb to the pressure of other party to the bargain who is
on a stronger position. This kind of bargain can be referred to as bargain under undue
influence.
Section 81 of IPC1 relates with this maxim.
→ CASE LAW:
“Mohd. Bilal and another v State of Delhi” Delhi high court on 1 August, 2014
37. If a person acts in good faith to prevent harm to another person, and that other person
could be the victim himself if the victim is trying to harm himself, and in the process the doer
commits any offence, by virtue of S. 81 of the Penal Code the person concerned does not
commit an offence. The genesis of the principle of law in S. 81 of the Penal Code is
'necessitas non habet legem' - necessity knows no law. Whilst under no circumstances can a
person be justified in intentionally causing harm, but where harm is caused without any
criminal intention, and merely with the knowledge that an offence is likely to ensue, the
person is not held responsible for the result of his act, provided the act was done in good faith
and to avoid or prevent harm to a person or property.
6. “Respondeat superior”
→ DEFINITION:
The Latin term respondeat superior, which translates as “let the master answer,”
It refers to a legal doctrine in which an employer may be held responsible for the actions of
his employees, when the actions are performed “in the course of employment.” In order
1
S.81. Act likely to cause harm, but done without criminal intent, and to prevent other harm.—Nothing is an
offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done
without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other
harm to person or property.
for respondeat superior to apply, there must be a clear employee-employer relationship
established, as the principle does not apply to actions by an independent contractor.
Although it is relatively easy to determine employer liability for an employee’s actions
during the course of employment, the issue of intentional acts, which may be criminal in
nature, is less clear. Many employers believe that any criminal acts committed by an
employee, whether he is on or off the clock, are the sole responsibility of that employee. This
issue is not black-and-white, however, but depends on the specific circumstances of the case.
→ CASE LAW:
“AVNISH BAJAJ VERSUS STATE LNIND 2008 DEL 1209”
"corporate liability is a form of vicarious liability wherein the corporation is held liable for
the wrongs of its agents. Vicarious liability is imposed on corporations under the doctrine
of respondeat superior when an agent (1) commits a crime (2) within the scope of
employment (3) with the intent to benefit the corporation. "
7. “Furiosus furore suo punier”
→ DEFINITION:
The literal meaning of this maxim is that- A madman is punished by his own madness.
Section 84 of IPC deals with insanity which is related to this maxim.
→ CASE LAW:
“Vidhya Devi v. State of Rajasthan 2004 CrLJ 2332 : AIR 2004 SC 1757 .”
In Vidhya Devi v. State of Rajasthan (supra), the Rajasthan High Court while observing that
certain elements must be present to establish that an act done cannot be said to be an offence
as covered by Section 84I.P.C., held as follows:
“26. A fundamental principle of criminal law is that mens rea (guilty mind) is an essential
element in every offence and no crime can be said to have been committed if the mind of the
person doing the act is not guilty. Since criminal act is an indispensable element in every
crime, a person incapable of entertaining such intent cannot incur legal guilt. Idiots and
lunatics are, therefore, not liable in criminal law for their acts. It has been said that a mad
man is best punished by his own madness. (Furiosus furore suo punier); or that a mad man
has no will (Furiosus nulla voluntus est); or a mad man is like one who is absent
(Furiosus absentis loco est).
8. “Qui peccat ebrius luat sobrius”
→ DEFINITION:
The literal meaning of this latin maxim is that- He who does wrong when drunk must be
punished when sober.
The justification for this maxim is that the offender had voluntarily become intoxicated. This
maxim applies to a wider ambit than just being drunk on alcohol. It includes any sort of
intoxication. In criminal law involuntary intoxication is a defence to a crime done as the
person was either unaware of the intoxicant or was forced into taking it. Intoxication is a
defence because the offender was not in a state of mind to form intent. Criminal
jurisprudence requires two things to form a crime i.e. mens rea and actus reus. Thus, in the
absence of mens rea which is the mental element or intent, the crime is not complete. Thus in
both involuntary and voluntary intoxication mens rea is absent. However, since in case of
voluntary intoxication the person had chosen his state of inebriation, he will be punished by a
court of law.
→ CASE LAW:
“PARESH HELA VERSUS STATE OF WEST BENGALI LNIND 2005 CAL 502”
(17) QUI peccat ebrius, luat sobrous, i. e. let him who sins when drunk be punished when
sober. Drunkenness makes no difference to the knowledge with which a man is credited. If a
man knew what the natural consequences of his acts were, he must be presumed to have
intended to cause them, as was held in the case of Basdev (supra). Voluntary drunkenness is
no excuse. In the present case, the accused who is a regular drunkard, abused the victim
filthily and suddenly poured kerosene oil on her person and set fire. Absence of proved
incapacity to form the stated intention brings him to charge of murder. Drunken state of the
accused spurred him to violence is not enough to bestow any immunity on the accused, so,
the above contention of the learned counsel for the appellant is not at all sustainable.
9. “ De minimis non curat lex”
→ DEFINITION:
The literal meaning of this maxim is that- The law does not notice trifling matters.
The Latin legal maxim means that the law does not take notice of trivial matters. It is a
common law principle which provides that the judges will not sit in judgment or take notice
of extremely minor transgressions of the law. As per this Maxim rationale citizens would
deem an appeal for trivial matters an utter waste of time and resources. It will bring the
judicial system into disrepute.
→ CASE LAW:
“Narayanan and other Versus State of Kerala (1986) 1 MLJ (Crl) 357”
“5. When considering the question whether the acts alleged against the petitioners would
amount to an offence of wrongful restraint, the maxim ‘de minimus non curat lex’ (the law
does not take account of trifles) should be borne in mind if the harm caused or intended to be
caused is so slight that no person of ordinary sense and temper would complain of such harm.
The above principle is embodied in Sec.95 of the Code. The definition of various offences in
the Code are so framed as to bring a number of activities within the letter of the penal law. If
we are to go by the definitions alone,”it is left to dip a pen in another man's ink“, it is
mischief to crumble one of his wafers, it is assault to cover him with a cloud of dust by riding
past him, it is hurt to incommode by pressing against him in getting into a carriage”. At the
same time, those are but few of the innumerable acts without the performance of which men
cannot live together in society, and acts which it is desirable that they should do. It depends
upon the degree of the acts and that is why the authors of the Code took particular care in
striking a note of caution by incorporating Sec.95 in the Code.”
10.“ Actus me invito factus non est mens actus”
→ DEFINITION:
The literal meaning of this maxim is that - “An Act done against one’s will is not such
person’s act.”
→ CASE LAW:
“KASHMIR MOTOR DRIVERS ASSOCIATION Versus UNION OF INDIA (UOI) LNIND
1983 JNK 3”
“Actus me invito factus, non est mens actus, that is, an act done by me against my will is
not my act. The decisions relied upon by Mr. Mirdul are, therefore, clearly distinguish able
on facts and no challenge can be thrown to the maintainability of the writ petition on the
ground that it seeks to enforce the rights and obligations “
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