KARAT LAWZ ACADEMY
INDIAN PENAL CODE, 1860
LECTURE 01
INTRODUCTION
HISTORICAL EVOLUTION OF CRIMINAL LAW
There was no criminal law in the uncivilized society. Every man was liable to be
attacked in his person or property at any time and by anyone. The person attacked
either succumbed or overpowered his opponent. “A tooth for a tooth, an eye for an
eye, a life for a life” was the forerunner of criminal justice. As time advanced, the
injured person agreed to accept compensation, instead of killing his adversary.
Subsequently, a sliding scale came into existence for satisfying ordinary offences.
Such a system gave birth to archaic criminal law.
The germs of the criminal jurisprudence came into existence in India from the time
of Manu. Starting from Vedic age the law in India has evolved from religious
directions, which operate the human conduct between do and don’t. It was not the
law of crime but the law of wrong, and more of religious prescriptions and
philosophy which was shaped by the concept of “Dharma”, or rules of right
conduct. Punishment for wrong was more popular than compensation, and it was
the duty of the King to punish the offender. During the time of Manu, criminal law
was getting it shaped, Manu recognized crime, justice, and punishment. A Hindu
Code was compiled by the pandits of Benaras at the instance of Warren Hastings. It
was called the Gentoo Code.
During Mughal period, administration of justice was regarded by the Muslim kings
as a religious duty; Quran was the first and the most important source of law and
criminal law was Islamic in nature, and Kazi were considered to be administrator of
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Criminal Justice, who explain and clarify the law. Mohemmadan Criminal Law
classified all offences as incurring of one of the classes of punishments, namely: -
1. Kisas or retaliation
2. Hud or specific penalties
3. Tazeer or Discretionary punishment
Under the Mughal rule, Criminal Justice came under Nizamat.
Britishers laid the foundation of Modern Indian Criminal Law. When the Britishers
came into India they adopted a different set of law which was based on British
pattern, and it was not uniform across India. The First major attempt to reform the
criminal justice was made after passing of the Regulating Act 1773. Under this Act,
new courts were set up. A superior revision Court was set up Niazamat Sadar Adalat
was set up at Moorshidabad.
In 1793, another reform in pursuance of Lord Cornwallis’ judicial regulations. Under
this reform, Suddar Nizamat Adalat or Supreme Criminal Court was set up at
Calcutta. This was the final form of courts created by East India Company. Supreme
Court similar to Calcutta was established in Madras in the year 1800 and Bombay in
1823.
First Penal Code in India
The Bombay Province was the first province in India to enact a brief penal code in
the year 1827. It was known as the Bombay Regulation of 1827 (the Bombay Code or
Elphinstone Code) It was finally superseded by Indian Penal Code, 1860.
HISTORY OF INDIAN PENAL CODE
The printed Draft Penal Code prepared by the Indian Law Commissioners and
submitted to the Government of India under date the 14th October, 1837, consisted
of 488 Clauses of which 233 Clauses were comprised in the Chapters reviewed in the
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First Report on the Indian Penal Code submitted on the 23rd July, 1846, with a
Postscript dated the 5th November, 1846. After the First Report ending on the 650th
paragraph was finished, the second Report of Her Majesty's Commissioners for
revising and consolidating the Criminal Law (of England) and submitted to Her
Majesty on 14th May, 1846, came into the hand of the Commissioners here. The
modifications as proposed in the second Report of Her Majesty's Commissioners
were taken notice of so far as they were relevant to the matters treated of in the
Chapters of the Indian Code which had been reviewed in the first Report on the
Indian Penal Code. The findings of the Commissioners, C.H. Cameron and D. Eliott,
were appended, as noted before, to the first Report as a Postscript dated the 5th
November, 1846. The second and concluding Report on the Indian Penal Code
proceeded on all the chapters offences not before examined and was submitted by
C.H. Cameron and D. Eliott, the Indian Law Commissioners, under date the 24th
June, 1847.
The revised Indian Penal Code was prepared and brought in by Barnes P.
Peacock, Sir James William Colvile, J.P. Grant, [Link] and Sir Arthur Buller. It
was read a first time on the 28th December, 1856. The Indian Penal Code Bill was
read a second time on the 3rd January, 1857 and was referred to a Select Committee,
who were to reopen thereon after the 21st of April, 1857. The Supplement to the
Calcutta Gazette of the 21st, 24th and 28th January, 1857, published the Indian Penal
Code Bill after its second reading. The Indian Penal Code was then passed by the
Legislative Council of India, and received the assent of the Governor General on
the 6th October, 1860. This final draft was prepared under the Chairmanship of
Lord Macaulay. It was due to come into force on the first day of May, 1861. The Act
as passed was published in the Appendix to the Calcutta Gazette dated 13th, 17th
and 20th October, 1860, respectively. In order to enable the people, the judges and
the administrators to know the provisions of the new Penal Code, the enforcement of
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the code was deferred till the first day of January, 1862, by the enactment of Act VI of
1861.
The Code came into force on 1st January, 1862. It came into force in Jammu and
Kashmir on 31st October, 2019, by virtue of the Jammu and Kashmir
Reorganization Act, 2019, and replaced the State’s Ranbir Penal Code.
JURISPRUDENTIAL ESSENCE OF INDIAN PENAL CODE
Indian is a matter of public law and protects the rights in rem. It does a balancing
between the interest of the individuals and mainly between the individual and
the societal interests.
It is the state which identifies certain wrongs to be wrong against the society at large
i.e. a wrong which does not affect only the individual concerned rather which affects
the societal conscience and the sense of stability of the society at large. These wrongs
are such which cause a sense of societal alarm i.e. a societal shock. Though they are
primarily a wrong against an individual the larger effect is upon the society as a
whole. The entire society as a matter of policy looks down upon such wrongs. It is a
matter of societal coherence or it can be said to be a case of societal pre-judgment
regarding that act to be the wrong against the society at large. A mere payment of
damages or any other individual remedy would not be sufficient and therefore the
state as representing the society at large prosecutes the individual wrongdoer.
CONCEPT OF CRIME
The term Crime is derived from Latin word ‘crimen’ meaning offence and also
wrong-doer. Crime is living concept. A Public Wrong is a 'Crime'. It is an injury to
the State even though the victim of the crime is an individual. Acts of crime are
considered anti-social. Hence, the States takes the responsibility of punishing the
criminal in the interest of state. Acts that are not punishable by the State are not
treated as crimes even though people violate moral principles.
Definitions of Crime
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• Crime is nowhere defined under the Indian Penal Code, 1860.
• Sir William Blackstone in his 'Commentaries on Law of England', defined
crime as "an act committed or omitted in violation of public law forbidding or
commanding it".
• Bentham defined it as ‘offences are whatever the legislature has prohibited
for good or bad reasons’.
• Oxford Dictionary defined it as ‘An act punishable by law as forbidden by
statute or injurious to public welfare’.
• Supreme Court defined crime in Sevaka Perumal v. State of Tamil Nadu AIR
1991 SC 1463 as ‘a social phenomenon which arises first when state is
organised, people set up rules and breaking of which is called crime’.
Crime and Offence
Crime is wider than offence. Offence is defined in Section 2(n) of Cr.P.C. and section
40 of IPC. The definition provided under Cr.P.C. is wider than IPC definition. The
relationship between crime and offence is that offences are included in crimes.
Crime and Morality
Crimes can be divided into Legal crimes (Mala prohibita) and Moral or social
crimes (Mala in se).
Mala in se – something which is prohibited by the moral standards of the society
will be mala in se.
Mala prohibita - something which is prohibited by the law of the society is called
mala prohibita i.e. the law expressly declares the act to be such which is punishable
by law.
Mala in se and Mala prohibita do not totally overlap with each other i.e. whatever
is immoral may not be prohibited by law and whatever is prohibited by law may
not be immoral in all cases.
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ELEMENTS OF CRIME
The following elements are to be satisfied to constitute an act as a crime.
1) Human being
2) Mens rea
3) Actus reus
4) Injury
1. Human Being
The first essential element of a Crime is that it must be committed by a human being.
In case, the crime is committed by an animal, its owner is subject to Civil/Tortious
liability. Section 11 of IPC defined ‘Person’ [Municipal Corp v. J.B Bottling Co. &
State of Maharashtra v. Sindicate Transport Company]
2. Mens Rea
It is one of the essential principles of criminal jurisprudence that a crime is not
committed if the mind of a person doing the act in question is innocent. A crime is
done with a criminal intent.
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Mens Rea
State of Mind Prohibited by Law
Mere mens rea is not punishable. The maxim “ACTUS NON FACIT REUS, NISI
MENS SIT REA” (an act does not make a man guilty unless the intention to do so),
is considered to be the condition of penal liability.
Not defined an IPC but words like Dishonestly [Section 24], fraudulently [Section
25], Criminal intention or Knowledge [Section 35], Wrongful gain or wrongful
loss [Section 23], Reason to Believe [Section 26], Intentional Cooperation [Section
37], Voluntarily [Section 39], Malignantly [Section 153 & 270], Wantonly [Section
153] & maliciously [Section 219 & 220] explain the relevance of mens rea.
Intention differs from motive and generally law takes notice of intention only.
Intention Motive
➢ It is the means. - It’s the End.
➢ State of mind which can forsee but also - Contemplates something
that can
deserves the consequences of his act. Contribute to give birth or
event to
any kind of action.
Generally, motive is not relevant in cases where direct evidence of the acts of the
accused is present. [State of U.P. v. Arun Kumar 2003 (2) SCC 202.] They are cases
of strongest shade of Mens rea. But when the cases relate to circumstantial evidence,
absence off motive is a factor in the favour of accused. [Weaker shade cases]
In the case of Nathuni Yadav v. State of Bihar (AIR 1997 SC 1808), it was held by the
Apex Court that Motive for a criminal act need not necessarily be proportionately
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grave to do grave crimes. Thus, establishing sufficient motive for committing offence
is not pre-requisite for conviction.
Mens rea is determined on the basis of external conduct. Therefore, the act is judged
not from the mind of the wrongdoer but the mind of the wrongdoer is judged
from the act.
Is Mens Rea required in all cases?
State of Maharashtra Vs. M.H. George AIR 1965 SC 722
Gold restrictions by RBI ‘FERA’ Act involved: The contention was that he didn’t
knew RBI direction. No scope for invoke doctrine of mens rea. This doctrine would
furnishes the object and purpose of Act.
Mens rea is an essential element of crime in every penal statute under the same
unless the statute expressly rules it out. [Nathulal v. State of M.P. AIR 1966 SC 43]
R v. Prince [1875], it was held that if the accused was not having knowledge of the
age of the victim and abduction does not require mens rea. Therefore, Prince was
held guilty by 15 judges out of 16 Judges.
R. v. Tolson [1889], R v Tolson (1889) 23 QBD 168
The appellant married in Sept 1880. In Dec 1881 her husband went missing. She was
told that he had been on a ship that was lost at sea. Six years later, believing her
husband to be dead, she married another. 11 months later her husband turned up.
She was charged with the offence of bigamy.
Held: She was afforded the defence of mistake as it was reasonable in the
circumstances to believe that her husband was dead. The Court Laid down that the
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doctrine of Mens Rea would be applicable in Statutory offences also and unless the
same is ruled out by the statute either expressly or by necessary implication.
Old View: The Doctrine of Mens Rea is not applicable on the penal statute of our
country.
Modern View: Even when law is codified, the application of the doctrine may
sometime be found useful in remedying defective and incomplete definitions.
From the point of view of mens rea, wrongs may be divided into three classes:
- Intentional or reckless wrongs – where mens rea amounts to intention or
knowledge.
- Wrongs of negligence – where mens rea assumes the less serious form of
mere carelessness, as opposed to wrongful intent.
- Wrongs of absolute or strict liability – where mens rea is not a necessary
condition of liability.
Concept offences of strict of Liability where mens rea not required –
- Socio Economic offences like food Adulteration Act, Drugs Act, Weight &
Measures Act.
- Offence against state – Sedition 124A, War against 121, Rape 376,
Counterfeiting coin 232
- Public Nuisance, Contempt, Libel, etc.
- Abduction
- Bigamy
Distinction between knowledge and intention
The main difference between knowledge and intention is that in the former the
consequence is not desired whereas in the latter it is desired.
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
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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.[Kesar
Singh v. State of Haryana, 2008 15 SCC 753].
3. Actus Reus
There should be an external act. The Act and the mens rea should be concurrent and
related.
Actus reus means an act “prohibited by Law”. Actus reus is constituted by the
event and not by the activity which caused the event.
Requirements of actus reus varies depending on the definition of crime. Actus
Reus may be with reference to place, time, person, consent, state of mind of the
victim, possession, preparation etc.
Actus Reus
Act (prohibited by Law) consequences
Unlawful Illegal (s. 43)
Not Defined in IPC
❖ 1st Law Commission itself declared that unlawful in IPC has the same meaning as
illegal.
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Illegal
Offence Prohibited by Law Not Prohibited by law but
(S. 40) giving ground for civil action
eg. all offences eg. Dowry
under IPC Civil suit: eg. Criminal breach
of trust
Act includes Omission – because of co-joint reading of S. 32 read with S. 43
NOTE: There might be mens rea without actus reus and actus reus without mens
rea.
Understanding Causation in Crime
An event is very often the result of number of factors. Then who will be made
criminally liable?
Causa Causans i.e. immediate cause of the effect
Causa Sine Qua Non i.e. proximate cause
For imputing criminal liability it is necessary that the act should be causa causans.
Causa sine qua non is not sufficient for holding anyone liable under criminal law.
4. Injury
There should be some injury or the act should be prohibited under the existing law.
The act should carry some kind of punishment. Section 44 deals with injury
Harm Caused (Illegally)
• Mind
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• Body
• Reputation
• Property
Sr. Ingredients Meaning Qualification Degree
No
1 Mens rea Mental Voluntary criminal intent or Prime / essential
element evil intention • Intention
• Knowledge
• Negligence
• Recklessness
2 Actus reus Action An over act of illegal Secondary
commission or omission
3 Human Human Human being under a legal Prime
being being must obligation to act in a particular
have a way and a fit subject for the
body not a infliction of appropriate
Animal, punishment
and
Artificial
person
4 Injury Hurt / an injury to another human Consequence
Damage being or to society at large by • Mind
such an act • Body
• Reputation
• Property
SOME NOTABLE COMMITTESS FORMED
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1. SANTHANAM COMMITTEE
Constituted in 1962, this high-power committee was formed to check the growth
of the growing menace of corruption in administration among the government
and corporate sector employees. The committee was headed by Shri. K.
Samthanam.
2. MALIMATH COMMITTEE
Constituted in 2000, this committee was established to propose reform in the
criminal justice system and constitutional provisions related to it. This committee
gave 158 recommendations, but hardly any recommendation/suggestions were
taken. This committee was headed by Justice Dr. V.S. Malimath.
3. JUSTICE VERMA COMMITTEE
Constituted in 2012, this committee was constituted after the famous Nirbhaya
case, to recommend amendments to the Criminal Law so as to provide for
quicker trial and enhanced punishment for criminals accused of committing
sexual assault against women. The committee submitted its report on January 23,
2013. It made recommendations on laws related to rape, sexual harassment,
trafficking, child sexual abuse, medical examination of victims, police and
electoral reforms. This committee was headed by former Supreme Court Chief
Justice [Link].
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LIST OF CASES
1. Municipal corp v. J.B Bottling Co.
2. State of Maharashtra v. Sindicate Transport Company
3. Sevaka Perumal v. State of Tamil Nadu AIR 1991 SC 1463
4. State of Maharashtra Vs. M.H. George AIR 1965 SC 722
5. Nathuni Yadav v. State of Bihar AIR 1997 SC 1808
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MAINS QUESTIONS
1) Explain the dictum “Actus non facit reum nisi mens sit rea”
2) How far is motive necessary for determining a crime? Explain with reference
to cases.
3) Differentiate between the following:
a. inchoate and chaote crimes
b. crime and offence.
c. motive and intention.
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