Week 1 - Criminal Law Concepts - Marada

Download as pdf or txt
Download as pdf or txt
You are on page 1of 44

CRIMINAL LAW

CONCEPTS

WEEK 1

Hamsini Marada
Assistant Professor, JGLS
© Karina Puente
A BRIEF HISTORY OF THE ANCIENT
JURIDICAL CITY OF FICTIONOPOLIS

Fact is often stranger than fiction,


and fiction can sometimes help
us understand fact.
WHAT IS A CRIME?

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

• What methodology to adopt?


- How does the author differentiate between doctrinal and philosophical
methodology?
• Harm based approach and consequential objections:
- Nozick
- Becker

Do all harms have the requisite effects as pointed out by Nozick


and Becker
Wrongs-based approach by Marshall and Duff
CRIME AND PUNISHMENT
Why community (even though not a victim) is the appropriate body
or is responsible to bring proceedings or to impose punishment?
What wrongs merit punishment? Further, what wrongs merit state
punishment?
NATHULAL
V
STATE OF MADHYA PRADESH
[1965, SC]

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.

WOULD THE ABSENCE OF INTENTION/MENS REA


SUFFICE FOR IT TO BE NOT TREATED AS A CRIME?
Additional District Magistrate, Dhar, found on evidence that the
appellant had not the guilty mind and on that finding acquitted him.

Division Bench of the Madhya Pradesh High Court, Indore Bench,


set aside the order of acquittal and convicted him on the basis that
in a case arising under the Act "the idea of guilty mind" was
different from that in a case like theft and that he contravened the
provisions of the Act and the order made thereunder, it sentenced the
appellant to rigorous imprisonment for one year and to a fine of Rs.
2,000 and in. default of payment of the fine he was to undergo
rigorous imprisonment for six months.
Section 7 of the Act.
(1) If any person contravenes any order made under Section 3--
(a) he shall be punishable--
(ii) in the case of any other order, with imprisonment for a term which may extend to three years and shall also
be liable to fine:
The Madhya Pradesh Foodgrains Dealers Licensing Order, 1958:
Section 2.--In this Order, unless the context otherwise requires,--
(a) "dealer" means a person engaged in the business of purchase, sale or storage for sale, of any one or
more of the foodgrains in quantity of one hundred maunds or more at any one time whether on one's own
account or in partnership or in association with any other person or as a commission agent or arhatiya, and
whether or not in conjunction with any other business.
Section. 3. (1) No person shall carry on business as a dealer except under and in accordance with the terms
and conditions of a licence issued in this behalf by the licensing authority.
(2) For the purpose of this clause, any person who stores any foodgrains in quantity of one hundred maunds
or more at any one time shall, unless the contrary is proved, be deemed to store the foodgrains for the
purposes of sale.
WHETHER ON THE FACTS FOUND THE
APPELLANT HAD INTENTIONALLY
CONTRAVENED THE PROVISIONS OF
SECTION 7 OF THE ACT AND THE ORDER
MADE THEREUNDER.
Mens rea is an essential ingredient of a criminal offence. Doubtless a
statute may exclude the element of mens rea, but it is a sound rule of
construction adopted in England and also accepted in India to construe
a statutory provision creating an offence in conformity with the common
law rather than against it unless the statute expressly or by necessary
implication excluded mens rea. The mere fact that the object of the
statute is to promote welfare activities or to eradicate a grave social evil
is by itself not decisive of the question whether the element of guilty
mind is excluded from the ingredients of an offence. Mens rea by
necessary implication may be excluded from a statute only where it is
absolutely clear that the implementation of the object of the statute
would otherwise be defeated. The nature of the mens rea that would be
implied in a statute creating an offence depends on the object of the Act
and the provisions thereof
• J.C. Shah, J.
Definitions of diverse offences under the Indian Penal Code state with
precision that a particular act or omission to be an offence must be
done maliciously, dishonestly, fraudulently, intentionally, negligently or
knowingly.
Certain other statutes prohibit acts and penalise contravention of the
provisions without expressly stating that the contravention roust be
with a prescribed state of mind.
But an intention to offend the penal provisions of a statute is normally
implicit, however, comprehensive or unqualified the language of the
statute may appear to be, unless an intention to the contrary is
expressed or clearly implied, for the general rule is that a crime is not
committed unless the contravenor has mens rea. Normally full
definition of every crime predicates a proposition expressly or by
implication as to a state of mind: if the mental element of any conduct
alleged to be a crime is absent in any given case, the crime so
defined is not committed
It is true that he carried on the business as a dealer in the
expectation based on assurances given to him by the Inspector that a
licence will be issued to him, but in carrying the business as a dealer
he contravened Section 3 of the Order, because he held no licence.
The authorities under the Order are not bound to issue a licence
merely because it is applied for, nor is there any provision in the
Order, as is to be found in certain statutes relating to administration of
Municipalities, that permission shall be deemed to be issued if for a
period specified in the statute no reply is given by the prescribed
authority to an application for grant of permission.
On the facts found, I am of the opinion that the appellant had
contravened Section 3 of the Order with the knowledge that he did not
hold a licence. But there can be no doubt that the State authorities
acted negligently: they did not give the appellant a hearing before
rejecting his application for a licence, and did not even inform him
about its rejection. They continued to accept the returns submitted by
him from time to time, and there is no reason to disbelieve the
statement of the appellant that the Inspector had given him
assurances from time to time that a licence would be issued to him.
I am, therefore, of the view that no serious view of the contravention
of the provisions of the Madhya Pradesh Foodgrains Dealers
Licensing Order, 1958, may be taken, and a fine of Rs. 50 would
meet the ends of justice. The order forfeiting the stocks of foodgrains
must be set aside.
ORDER
Following the judgment of the majority, the appeal is allowed, the
order of the High Court convicting the appellant is set aside and ''
the appellant is acquitted of the offence with which he was charged.
The bail bond is discharged. If any fine has been paid, it shall be
returned.
STATE OF MAHARASHTRA V HANS GEORGE
The question is whether the intention of the Legislature is to punish person
who break the said law without a guilty mind.

In Russell on Crime, 11th edn. Vol. 1, it is stated at p. 64 :


"......... there is a presumption that in any statutory crime the common law
mental element, mens rea, is an essential ingredient."
On the question how to rebut this presumption, the learned author
points out that the policy of the courts is unpredictable. I shall notice
some of the decisions which appear which appear to substantiate the
author's view. 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, willfulness, 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."
Archbold in his book on "Criminal Pleading, Evidence and Practice",
35th end., 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 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

What is Fair Labelling?


- Labelling at macro-level
- Labelling at micro-level
• WHY DOES LABELLING MATTER?
Andrew Ashworth:
- Proportionality
- Maximum Certainty

1. Fair labelling acts as a check on sentencing discretion


2. Fairness to the offender
One of the justifcations for the principle offered by Ashworth is that
‘[f]airness demands that offenders be labelled and punished in
proportion to their wrongdoing’.
This does raise the question, though, of exactly why it is so unfair to
label offenders in a particular way. Why does it matter so much what
the offence is called, as long as the degree of punishment is not
excessive? The answer may well be that it matters for a number of
inter-linked reasons, all of which relate to the communicative function
of the offence name.
3. The symbolic function of offence labels: communication to the
public
- Declaratory function
- If the name of the o¡ence does not accurately re£ect the degree or
nature of the wrongdoing, then the o¡ender could be unfairly
stigmatised.
- Eg: Difference between murder and manslaughter
- the manner of communication – from courts to the public
4. Communication to offenders
Simester and Sullivan have argued that the law should make clear
‘what sort of criminal each o¡ender is’ and should ‘communicate this to
the defendant, so that he may know exactly what he has done wrong
and why he is being punished, in order that his punishment appears
meaningful to him, not just an arbitrary harsh treatment’.
5. Communication to agencies operating within the criminal
justice system

6. Communication to agencies operating outside the criminal


justice system

7. Fairness to the victim


CONSIDERATIONS IN LABELLING OFFENCES

1. Particularism versus Breadth


2. Pragmatism
It may be that a particular offence category appropriately reflects the
nature and seriousness of the offence but that there are still practical
reasons for calling it something else.
3. Public Opinion
Ashworth has suggested that ‘where people generally regard two types
of conduct as different, the law should try to refect that difference’.
4. The symbolism of the name itself
5. The elements of the offence that might be reflected
CRIMINALISATION

THE PRINCIPLE OF INDIVIDUAL AUTONOMY


THE PRINCIPLE OF WELFARE

You might also like