Week 1 - Criminal Law Concepts - Marada
Week 1 - Criminal Law Concepts - Marada
Week 1 - Criminal Law Concepts - Marada
CONCEPTS
WEEK 1
Hamsini Marada
Assistant Professor, JGLS
© Karina Puente
A BRIEF HISTORY OF THE ANCIENT
JURIDICAL CITY OF FICTIONOPOLIS
GRANT LAMOND
Some other interesting reads to
check-out:
1. Legal Reasoning for Hedgehogs'
(2017) 30 Ratio Juris 507
2. 'Criminal Culpability and Moral
Luck' (2021) 23 Jerusalem Review
of Legal Studies 149
• What is a crime?
- Through the lens of a lawyer
- Through the lens of a criminologist
Facts:
Nathulal 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
• 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.
"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 offence it depends on the
effect of the statute ....... There is a presumption that mens rea 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."
It would be seen from the aforesaid observations that in that case
mens rea was not really excluded but the burden of proof to negative
mens rea was placed upon the accused.
In Pearks' Dairies Ltd. v. Tottenham Food Control Committee
[1919] 88 L.J. K.B. 623 the Court of Appeal considered the scope of
Regulations 3 and 6 of the Margarine (Maximum Prices) Order, 1917.
The appellant's assistant, in violation of their instructions, but by an
innocent mistake, sold margarine to a customer at the price of 1 sh.
per 1b. giving only 14 1/2 ozs. by weight instead of 16 ozs. The
appellants were prosecuted for selling margarine at a price exceeding
the maximum price fixed and one of the contentions raised on behalf of
the accused was that mens rea on the part of the appellants was not
an essential element of the offence.
But there are exception to this rule in the case of quasi-criminal offences,
as they may be termed, that is to say, where certain acts are forbidden by
law under a penalty, possibly even under a personal penalty such as
imprisonment, at any rate in default of payment of fine; and the reason for
his is, that the Legislature has thought it so important to prevent the
particular act from being committed that it absolutely forbids it to be done;
and if it is done the offender is liable to a penalty whether he had any mens
rea or not, and whether or not he intended to commit a breach of the law.
Where the act is of this character then the master, who, in fact, has done
the forbidden thing through his servant, is responsible and is liable to a
penalty. There is no reason why he should not be, because the very object
of the Legislature was to forbid the thing absolutely."
• In Bread v. Wood (1946) 62 T.L.R. 462 dealing with an emergency
legislation relating to fuel rationing, Goddard C.J., observed :
• "There are statutes and regulations in which Parliament has seen
fit to create offences and make people responsible before criminal
Courts although there is an absence of mens rea, but it is certainly
not the Court's duty to be acute to find that mens rea is not a
constituent part of a crime. It is of the utmost importance for the
protection of the liberty of the subject that a Court should always
bear in mind that, unless a statute, either clearly or by necessary
implication, rules out mens rea as a constituent part of a crime, the
Court should not find a man guilty of an offence against the
criminal law unless he has a guilty mind."
25. On that reasoning the Judicial Committee held that the accused
was not guilty of the offence with which he was charged. This decision
adds a new dimension to the rule of construction of a statute in the
context of mens rea accepted by earlier decisions. While it accepts the
rule that for the purpose of ascertaining whether a statute excludes
mens rea or not, the object of the statute and its wording must be
weighed, it lays down that mens rea cannot be excluded unless the
person or persons aimed at by the prohibition are in a position to
observe the law or to promote the observance of the law.
VICARIOUS LIABILITY AND MENS REA
• 26. The Indian decisions also pursued the same line. A division
Bench of the Bombay High Court in Emperor v. Isak Solomon
Macmull MANU/MH/0001/1948 : (1948)50BOMLR190 in the
context of the Motor Spirit Rationing Order, 1941, made under the
Essential Supplies (Temporary Powers) Act, 1946, held that a
master is not vicariously liable, in the absence of mens rea, for an
offence committed by his servant for selling petrol in the absence
of requisite coupons and at a rate in excess of the controlled rate.
• Chagla C.J., speaking for the Division Bench after considering the
relevant English and Indian decisions, observed :
• "It is not suggested that even in the class of cases where the offence
is not a minor offence or not quasi-criminal that the Legislature
cannot introduce the principle of vicarious liability and make the
master liable for the acts of his servant although the master had no
mens rea and was morally innocent. But the Courts must be
reluctant to come to such a conclusion unless the clear words of the
statute compel them to do so or they are driven to that conclusion by
necessary implication."
HOW WOULD YOU CIRCUMVENT THE MAXIM
“IGNORANCE OF THE LAW IS NO EXCUSE”
33.Here, as there, it is conceded that there is no provision providing for the
publication in any form of an order of the kind made by the Reserve Bank of India
imposing conditions on the bringing of gold into India. The fact that the Reserve
Bank of India published the order in the Official Gazette does not affect the
question for it need not have done so under any express provisions of any statute
or rules made thereunder. In such cases the maxim cannot be invoked and the
prosecution has to bring home to the accused that he had knowledge or could
have had knowledge if he was not negligent or had made proper enquiries before
he could be found guilty of infringing the law. In this case the said notification was
published on November 24, 1962, and the accused left Zurich on November 27,
1962, and it was not seriously contended that the accused had or could have had
with diligence the knowledge of the contents of the said notification before he
brought gold into India.
I, therefore, hold that the respondent was not guilty of the offence
under s. 23(1-A) of the Act as it has not been established that he
had with knowledge of the contents of the said notification brought
gold into India on his way to Manila and, therefore, he had not
committed any offence under the said section. I agree with the High
Court in its conclusion though for different reasons.
THIS HOUSE BELIEVES THAT FAIR LABELLING
IS INCONSEQUENTIAL TO CRIMINAL LAW
FAIR LABELLING IN CRIMINAL LAW
- James Chalmers and Fiona Leverick