CH 5

Uttarakhand Judicial & Legal Review
PREPARATORY LEGAL ASPECTS OF

CRIMINAL TRIAL
Justice Irshad Hussain*
We all know that the adversarial system of trial prevalent in India

was brought in vogue in India by the English. This system in ancient India
was not known and the Judge took an active role in eliciting truth as in the
continental system. The theory of the common law that justice can be
dispensed by giving each party full opportunity to present his own case
was the development of the common law in England. Civil and Criminal
Procedure Codes in India and the Law of Evidence enacted in the later
half of the nineteenth century are in conformity with this common law
doctrine. In the adversary system of trial the Judge is supposed to perform
the duty impartially, maintaining the balance between the two adversaries
and ensure that the proper procedure is being followed. The duty cast on
the Judge is to render his decision at the end of the trial and it is not open
to the Judge to consider matters extraneous to the evidence or let his
personal knowledge come into play.
Criminal law concerns with the protection of life, liberty and
property of an individual. In fact criminal law is narrower than morality
and this has been the reason that no attempt has ever been made to treat
every moral defect as crime. The idea of crime involves some defect,
gross undeniable injury to someone where some definite overt act is
necessary. None is liable to be punished for ingratitude, hard-heartedness,
absence of natural affection, habitual idleness, sensuality and pride. Law
is concerned with relationship between the individuals rather than with the
individual excellence of their characters. According to Austin’s definition
‘crime is an act or omission which the law punishes.’ According to
Blackstone ‘a crime is a violation of public rights and duties due to the
whole community.’ Broadly speaking a crime presents all of the following
three characteristics:-
(1) that it is a harm brought about by human conduct which the
State (Sovereign power) desires to prevent;
* Hon’ble Judge (Retd.), High Court of Uttarakhand at Nainital
24
Preparatory Legal aspects of Criminal Trial
(2) that among the measures of prevention is the threat of

punishment to the potential wrong doer;
(3) that legal proceedings of particular nature are initiated to take
a decision as to whether the person accused did, in fact, cause
the harm and is held liable for punishment provided thereto.
Section-40 of the Indian Penal Code (Act 45 of 1860) states that
an offence denotes a thing which may be punishable by the Code. An
ideal criminal justice system is one which is able to reach out to every
individual, who has committed a crime and after affording a fair trial to
those accused is able to punish each one of them while ensuring that no
innocent person is convicted. Acquittal of a guilty person is as much failure
of criminal justice system as conviction of an innocent person. It is therefore
vital that criminal trials are held and conducted skillfully and methodically
according to the procedure established and the trial Judge should be
conversant with the legal process and be able to communicate the same
in letter and spirit to do complete justice to the society or the individuals
and to avoid miscarriage of justice.
The fundamental principle of criminal law is that there must be
wrongful act (Actus reus) combined with wrongful intention - mes rea.
This principle is embodied in the maxim Actus non facid reum risim
mens sit rele meaning, ‘an act does not make one guilty unless the mind
is also guilty.’
Actus reus connotes an overt act, the physical result of human
conduct. For example in an assault case the injury sustained by the victim
is the event which is the Actus reus. In other words the crime is constituted
by the event and not by the activity which caused the event. The intention
to cause the injury by assault is called mens rea. In order to create a
criminal liability the act must be one which is prohibited by law and it is
not merely sufficient that there is mens rea, the actus must be reus.
Mens rea is motive forced behind the criminal act. There must be
a wrongful intention or such condition of mind which may be blame-worthy
before a person is made criminally liable. Mens rea or guilty intention is
sine qua non of a criminal act. Ordinarily, a crime is not committed, if the
mind of a person doing the act is innocent. The fact that mens rea has
been made pivotal to the criminal liability is based on the premise that
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every person has the capacity to choose between right and wrong. Once
a person makes a choice, he has to take the responsibility for the same.
Under the Indian Penal Code guilt in respect of almost all the offences is
fastened either on the ground of intention, or knowledge, or reason to
believe. All offences under the Indian Penal Code are qualified by one or
the other words such as wrongful gain, or wrongful loss (Section 23),
dishonestly (Section 24), fraudulently (Section 25), reason to believe
(Section 26), criminal knowledge or intention (Section 35), intentional co-
operation (Section 37), voluntarily (Section 39), malignantly (Sections 153,
270), wantonly (Section 155). Although the word ‘mens rea’ as such is
nowhere found in the Penal Code, its spirit and essence is reflected in
almost all the provisions of the Code. Intention is a term, which is very
difficult to define and this is the reason that it is expressed by words such
as ‘voluntarily’ and ‘willfully’, ‘deliberately’, ‘deliberate intention’, ‘with
the purpose of’ or ‘knowingly’. In the Indian Penal Code all these
expressions find place in different sections of the Code with reference to
the offences defined therein.
It also needs to be impressed that mens rea is not a unitary
concept. Depending on the nature of the crime mens rea may be present
or existence of intention in some cases, the requirement of knowledge in
some and negligence in some other. The negligence is the failure of a
person to act with the standard of care expected of a reasonable or a
prudent person.
Chapter IV (Sections 76 to 106) deals with general exceptions,
wherein acts otherwise would constitute offences ceased to be so under
certain circumstances set out in the various sections. Therefore, these
exceptions are in itself a recognition of the principle of mens rea.
For framing of a charge of an offence under the Penal Code, the
traditional rule of existence of mens rea is to be followed (See also Sections
211 to 216 of the Code of Criminal Procedure). It need to be stated here
that this traditional rule that mens rea is an essential element of an offence
is not without its exception. In the last few decades social or public welfare
laws have been so drafted that the law makes the mere omission or
commission of acts punishable. In other words no mens rea is required.
Such acts are termed as ‘strict liability’ or sometimes ‘absolute liability
offences’. Enactments for instances to be referred are:-
26
Preparatory Legal aspects of Criminal Trial
(a) Factories Act and other Labour Legislations.

(b) Prevention of Food Adulteration Act.
(c) Essential Commodities Act.
(d) Motor Vehicles Act.
(e) Negotiable Instruments Act etc.
Example of ‘strict liability offences’ may be found in the Indian
Penal Code such as Section 292 which makes the sale, hiring, distributing,
publicly exhibiting, importing, exporting etc. of obscene books, pamphlets,
writings, drawings etc. offence.
Every person accused of a crime is presumed to be innocent unless
and until proved guilty by the evidence adduced by the prosecution or the
complainant. The burden of proving the guilt of the accused rests solely
and entirely on the prosecution and this burden does not shift. Generally
an accused cannot be asked to bring his innocence but when the element
of mens rea exists in the statutes; the prosecution only has to prove that
the accused committed certain wrongful act. The presumption is always
rebuttable one, that is, the accused person shall be given an opportunity to
prove that the person had committed certain acts, but it was done innocently
and without any criminal intent (see Section 8-A of Dowry Prohibition
Act).
An offence that has been committed generally divided into four
distinct and successive stages:-
(1) intention of commit it;
(2) preparation;
(3) attempt to commit; and
(4) the actual commission of the offence;
In criminal law, the first two stages of intention and preparation are
generally not made punishable. Law does not as a rule punish individuals
for evil thing or intention. It is impossible for anyone to be able to look into
breast of criminals to ascertain and prove the evil intentions. Further, it is
always possible for a person to give up his evil intentions or designs. It is
based on these considerations that a principle of law has come to be
evolved which make only those intentions punishable that are accompanied
27
by some overt act aimed towards achieving the intention. On the same
ground preparation, as a general principle, is not made punishable. It is
quite possible that the person, who originally had the intention to commit
an offence, gives it up and do not go ahead with the preparation. It is
when an act has gone beyond the stages of preparation towards achieving
the intention that the law of attempt begins and criminal liability covers
the act committed.
While preparation to commit an offence is not generally defined
to be an offence but special variety of acts are defined to be offences
although they may constitute preparation to commit those offences. For
example under Section 122 I.P.C. collecting men, arms and ammunition to
prepare to wage war against the government of India; under Section 126
I.P.C. committing depredations on territories of any power in alliance or
with the peace with the government of India; under Sections 233, 235 and
257 I.P.C. making or selling or being in possession of instrument for
counterfeiting coins or government stamps; under Sections 242, 243, 259
and 262 I.P.C. the possession of counterfeit coin, government stamps,
false weight or measures and under Section 399 I.P.C. making preparation
to commit dacoity have been made punishable, offences.
The I.P.C. does not clearly define the ‘attempt’. However it makes
provision covering the categories of acts amounting to an offence to attempt
to commit an offence. For example attempt to commit suicide under Section
309 I.P.C. and another category relates to attempt to commit the offences,
in which no specific punishment has been provided in I.P.P. (Section 511
I.P.C.).
Thus, the above introductory concepts have to be taken note thereof
while cognizance of offence is taken and to proceed with the criminal
trials/cases according to the procedure provided under code of Criminal
Procedure and any other enactment.
*********
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Uttarakhand Judicial & Legal Review

PREPARATORY LEGAL ASPECTS OF

Justice Irshad Hussain*

We all know that the adversarial system of trial prevalent in India

* Hon’ble Judge (Retd.), High Court of Uttarakhand at Nainital

(2) that among the measures of prevention is the threat of

(a) Factories Act and other Labour Legislations.

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