What is Crime?

o Introduction
o Crime as Public Wrong
o Crime as Moral Wrong
o Crime as Conventional Wrong
o Crime as Social Wrong
o Crime as Procedural Wrong
o Crime as Legal Wrong
o Distiction Between Crime and Sin
o Distinction Between Tort and Crime
o Distinction Between Intention and Motive

The word crime is difficult to define, but an attempt at definition essentially must
precede the study of crime. Legally, a crime is an act made punishable by law. A
criminal is one who has committed such a legally forbidden act. Yet there are other
criteria which determine whether a person may be dealt with as a criminal. R. C.
Nigam (Law of Crimes in India) says that to answer the question, as to what is a
crime, it is to be known at first, what is Law because these two questions are
interrelated. The law is a command enjoining a course of conduct. A crime may,
therefore, be an act of disobedience to such a law forbidding or commanding it.
But then, sometimes, disobedience of all laws may not be a crime, for instance,
disobedience of civil laws. Therefore, crime would mean something more than
mere disobedience of law. Crime may be viewed from various perspectives with the
definitions put forth by various jurists or criminologists or sociologists from time to
time.

Crime as a Public Wrong:

Sir William Blackstone in his book, Commentaries on the Laws of England,

defines crimes in two ways, in his work, at the first stage he defines crime as, “An
Act committed or omitted in violation of a ‘Public Law’ forbidding or
commanding it”. At a second stage, he modified his definition as: “A crime is a
violation of the public ‘rights and duties’ due to the whole community, considered as a
community”

Crime is defined in Halsbury’s Laws of England as “an unlawful act or default which
is an offense against public and renders the person guilty of the act or default liable to
legal punishment”.

According to Salmond, the distinction between crimes and civil wrongs is

that crimes are public wrongs, whereas civil wrongs are private wrongs.
Thus, Salmond maintains that a crime is an act deemed by law to be harmful to
society in general, even though its immediate victim is an individual.

Sergeant Stephen, while editing Blackstone’s commentaries modified the definition to

some extent as: “A crime is a violation of a right considered in reference to the evil
tendency of such violation as regards the community at large”. The definition stresses
that crimes are breaches of those laws, which injure the community. The definition
narrows down the scope of crime to violation of rights only, whereas criminal law
fastens criminal liability even on those persons who omit to perform the duty required
by law. For instance, a police officer who silently watches another police officer
torturing a person for the purpose of extorting confession is liable for abetting the said
offence, as he is under a legal duty to prevent torture. Thus the definition fails to give
an adequate and comprehensive definition.

Crime as Moral Wrong:

Raffaele Garofalo defines crime in some sociological perspective as: “Crime is an

immoral and harmful act that is regarded as criminal by public opinion because it is an
injury to so much of the moral sense as is possessed by a community- a measure
which is indispensable for the adaptation of the individual society”. He considers
crime to have been some act ‘labelled’ as criminal by public opinion. His emphasis is
also on the moral wrong, but there are some of the conducts though derogate from the
moral value of the community, are not considered crimes, for instance, immoral acts
like ingratitude, hard-heartedness, callous disregard for sufferings of others, though
immoral, do not constitute crime.

Crime as Conventional Wrong:

Edwin Sutherland, noted criminologist defines crime in terms of criminal behaviour

as: “Criminal behaviour is behaviour in violation of criminal law. No matter what the
degree of immorality, reprehensibility, or indecency of an act, it is not a crime unless
it is prohibited by criminal law. The criminal law, in turn, is defined conventionally as
a body of specific rules regarding human conduct which has been promulgated by
political authority, which apply uniformly to all members of the class to which the
rules refer, and which are enforced by punishment administered by the state,
characteristics which distinguish the body of rules regarding human conduct from
other rules, are therefore, politicality, specificity, uniformity and penal sanction”. This
definition is consistent with the concept ‘nulla poena sine lege’, which means there is
no crime without a law. He merely enumerates the characteristics of crime and says
that crime is a violation of a criminal law.

Crime as Social Wrong:

John Gillin, a renowned sociologist defines crime as: “Crime is an act that has been
shown to be actually harmful to society, or that is believed to be socially harmful by a
group of people that has the power to enforce its beliefs, and that places such act
under the ban of positive penalties.”

According to Donald Taft, ‘Crime is a social injury and an expression of subjective

opinion varying in time and place”.

Crime as a Procedural Wrong:

John Austin defines crime in terms of the nature of the proceeding, as: “A wrong
which is pursued by the Sovereign or his subordinate is a crime (public wrong). A
wrong which is pursued at the discretion of the injured party and his representatives is
a civil wrong (private wrong)”.

Prof. Kenny defined crime as: “Crimes are wrongs whose sanction is punitive, and is
in no way remissible by any private person, but is remissible by the crown alone, if
remissible at all.”

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Crime as a Legal Wrong:

Cross & Jones define crime as a legal wrong the remedy for which is the punishment
of the offender at the instance of the State.

A person is not a criminal ‘officially’ until he or she has been defined as such by law.
The process of defining what constitutes a crime and who will be defined as a criminal
is an important part of criminology. Before the law can properly call a person a
criminal, it must go through a series of actions governed at all junctures by well
defined legal rules collectively called criminal procedure and in this study are
included the Criminal Procedure Code (Code of Criminal Procedure, 1973, Act 2 of
1974), the India Penal Code, 1860 and the Indian Evidence Act, 1872, These
procedural rules, however, vary greatly from culture to culture, but almost all modem
cultures have a set of rational rules guiding the serious business of officially labelling
a person a criminal.

Criminologist Paul Tappan defines crime as “an intentional act or omission in

violation of criminal law …, committed without defense or justification, and
sanctioned by the state as a felony or misdemeanor.”

This definition is the best fit for a country where a mechanism is installed (e.g. India.
In India there being established procedure and criminal and penal laws including laws
of evidence, in the form of the Criminal Procedure Code, the Indian Penal Code, the
Indian Evidence Act, the task of enforcing the law and administering the criminal
justice through various organs of the mechanism established for the purpose, is
 followed in the strict legal terms. In a society where ‘Rule of Law’ reigns supreme,
there has to be a well-built legal system and to run the affairs in the most effective
manner enforcement of the law is of utmost necessity.

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Distinction Between Crime & Sin:

CRIME SIN

It is an action that is against the law or rule written Sin is a religious concept that is a violation of God’s will or an
and created by government body against some religious, spiritual or moral belief.

It is identified by the state Sin is identified by God.

The punishment of crime is given in this world by the

The punishment of sin is given after death by the God.
State

Every crime is a sin Every sin is not a crime

It is something that is set by social codes of the

Sin is a subjective term, and has no parameters to base exactly
country we live in, and if broken a penalty is to be
is. It is believed by religious people and ignored by others as a d
paid.

Brief of crime is given in criminal statutes, penal

Brief of sin is given in religious books.
code, CrPC, etc

For both believers and non-believers anti-social

For non-believers anti-social activities are not sin
activities are crime.

TORT CRIME

Tort implies a wrongful act causing injury or harm for which Crime refers to an offence or wrong or illegal
recovery is sought by the aggrieved party as per civil law, from the act for which the person conducting it, will be
person who is responsible for the act. punished under the court of law.

It affects the social order of the community we

A tort is a wrong doing that goes against an individual,
live in.

The intent of a tort can be unintentional, it may be accidental and It is an intentional wrong for obtaining
caused by negligence. wrongful gain.

The defendant will be prosecuted in criminal

The defendant will be sued in civil court.
court.

On being liable the defendant has to pay damages/compensation On being guilty of the offence, the defendant
decided by the court. will be sentenced.

Burden of proof lies on the plaintiff. Burden of proof lies on the prosecution.
There is an infringement of individual rights. There is a violation of public rights.

Law of tort is not codified. Law of crime is codified

Aim of law of crime is to maintain law and

Aim of law of tort is to protects the rights of a person. order in society and prevention of crime and
punish the wrongdoer.

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Distinction Between Tort and Crime:

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Intention and Motive of a Crime:

Criminal intent (intention) refers to the mental state of mind possessed by a defendant
in committing a crime. While the motive is usually used in connection with the
Criminal Law to explain why a person acted or refused to act in a certain way.

If ‘X’ has an insurance policy of Rs. 20 lakh and ‘Y’ is the beneficiary of the policy in
case of death of ‘X’. ‘Y’ plans a murder of ‘X’ so that he would get the insurance
amount. He plans his crime so that it looks like an accident. In this case, the intention
of ‘Y’ is to murder ‘X’, while his motive is to get the insured amount after the death
of ‘X’.

‘A’ is so poor that she is not able to feed her child. She plans to commit a theft and to
use money obtained from it to feed her child. In this case, the intention is to steal but
the motive is to feed her child.

A defendant’s motive is important in police investigation and sentencing. Law

enforcement personnel often consider potential motives in detecting perpetrators.
Judges may consider the motives of a convicted defendant at sentencing and either
increase a sentence based on avaricious motives or decrease the sentence if the
defendant’s motives were honorable.

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INTENTION MOTIVE

Intention refers to a purposeful action and a conscious Motive alludes to the ulterior cause, which induces a
decision to perform an act, which is forbidden by law. person to do or abstain from doing a particular act.

It is the objective of the act It is the driving force for the act
It is expressed It is implied

It is substantial to determine criminal liability. It is insubstantial to determine criminal liability.

With few exceptions the prosecution in a criminal case must Proof of motive is not required in a criminal
prove that the defendant intended to commit the illegal act. prosecution.

Distinction Between Intention and Motive:

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In Ganesan v. State, Criminal Appeal (MD) No. 22 of 2011, the Madurai bench of
Madras High Court observed that intention is different from motive or ignorance or
negligence. Intention requires something more than the mere foresight of the
consequence s. The intention is a conscious state in which mental fac

Conclusion:

A crime is an offence that requires community condemnation and punishment, usually

by way of fine or imprisonment. Crime is different from a civil wrong (a tort), which
is an action against an individual that requires compensation or restitution. Criminal
offences are normally prosecuted by the State, whereas it is usually up to an individual
to take a civil action to court. It is also possible for an individual to begin criminal
proceedings, but this is very rare. Some matters, such as assault, can be both crimes
and civil wrongs at the same time. The police can prosecute for assault and the victim
can take civil action to recover money (or some other kind of compensation) for any
injury suffered.

What are the Ingredients of Crime?

Law and You > Criminal Laws > Bharatiya Nyaya Sanhita, 2023 > What are
the Ingredients of Crime?

In the last article we have seen what is meant by crime. In this article, we shall study
the characteristics or ingredients of crime. Main ingredients of crime are human being,
guilty mind (mens rea), Act (Actus Reus), injury to victim of crime, prohibited act and
punishment.

List of Sub-Topics:

o Introduction:
o Human Being
o Guilty Mind (Mens Rea)
 o Act (Actus Reus)
o injury to Victim of Crime,
o Prohibited Act
o Punishment
o External Consequences
o Relativity

The word crime is difficult to define, but an attempt at definition essentially must
precede the study of crime. Legally, a crime is an act made punishable by law. A
criminal is one who has committed such a legally forbidden act. Yet there are other
criteria which determine whether a person may be dealt with as a criminal. R. C.
Nigam (Law of Crimes in India) says that to answer the question, as to what is a
crime, it is to be known at first, what is Law because these two questions are
interrelated. The law is a command enjoining a course of conduct. A crime may,
therefore, be an act of disobedience to such a law forbidding or commanding it. But
then, sometimes, disobedience of all laws may not be a crime, for instance,
disobedience of civil laws. Therefore, crime would mean something more than mere
disobedience of law. Crime may be viewed from various perspectives with the
definitions put forth by various jurists or criminologists or sociologists from time to
time.

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Ingredients of Crime:

Human Being:

The first essential element of the crime is a ‘Human being’. It requires an act to be a
crime, it is necessary that the act must be committed by a human being. In ancient
times when the criminal law was dominated by the idea of retribution, then the
punishments were also inflicted on animals for the injury done by them. But now, if
an animal causes injury, the animal is not liable for that act but its owner is liable for
it.

Section 2 of Indian Penal Code provides that – “Every person shall be liable to
punishment under this Code for every act or omission contrary to the provisions
thereof, of which he shall be guilty within India”.

Section 11 of Indian Penal Code, which provides that the word ‘Person’ includes a
company or association or a body of persons whether incorporated or not. It means the
artificial persons are also liable for the breach of the statutory duty imposed on them
but they are not liable for the act which can be committed only by the living person as
Murder, Rape, and Bigamy etc.
Before industrialization corporates were not considered legal entities. The logic was if
corporations didn’t have a soul, they couldn’t be outlawed since outlawry is the act of
summoning someone to court and a corporation was not a person who could be
compelled to due the same. But the corporations can be punished for not doing their
statutory duties.

In R. v. Birmingham Rly. Co, (1840) 2QB 47 case, the Court held the corporation
liable for having neglected to repair a highway

In R. v. Great North of Eng. Rly. Co. (1846) 9QB 315 case, the Court held the
corporation liable for obstructing a high way whereby public nuisance was created.

In Lennard Carrying Co. Ltd. v. Asiatic Petroleum Co. Ltd, 1915 AC 705 at p.
715 case, it has been held, “A corporation is an abstract. It has no mind of its own any
more than it has a body of its own, its acting and directing will must consequently be
sought in the person of somebody who is really the directing mind or will of the
corporation. The fault of a corporation is, therefore, fault of its superior officers who
are the directing mind or will of the corporation.

Thus the first element of crime is human beings and artificial legal entities who must
be given appropriate punishment and should be under legal obligation to be held
criminally liable.

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Guilty Mind (Mens Rea):

3‘Mens rea’ is the second and important essential elements of crime. It is also known
as ‘evil intent’. A Latin maxim “Actus reus non facit reum nisi mens sit” means the act
itself does not constitute guilt unless done with a guilty intent.

In United States v. Currans 290, F. 2 d 751 (3 rd Cir. 1961) case, Biggs, Chief
Justice observed: “The Concept of Mens Rea, guilty mind, is based on the assumption
that a person has the capacity to control his behaviour and to choose between
alternative courses of conduct. This assumption, though not unquestioned by
theologians, philosophers, and scientists, is necessary to maintain and administration
of social controls. It is only through this assumption that society has found it possible
to impose duties and create liabilities designed to safeguard persons and property…
Essentially these duties are intended to operate upon the human capacity for choice
and control of conduct so as to inhibit and deter socially harmful conduct. When
person possessing capacity for choice and control, nevertheless breaches a duty of this
type he is subjected to the sanctions of criminal law.”
Mens rea may, however, be direct or implied. Mens rea implies that there must be a
state of mind with respect to an actus reus, that is, an intention to act in the prescribed
fashion. It is, however, important to distinguish mens rea from motive. Thus, if a
person steals away a few loaves of bread from someone’s kitchen to feed a child who
is dying of hunger, the motive here may be honourable and understandable,
nevertheless the mens rea being to commit the theft, the person would be convicted
for theft. His motive may, however, be taken into account in sentencing and he may be
less severely punished because of his good motive. In short, motive should be taken
into consideration at the sentencing stage and not at the time of deciding the question
of mens rea i.e. during the investigation.

If the offender has been found guilty of wrongful intentions, he shall be prosecuted by
the court of law. Absence of Guilty intentions may save him from punishment.

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Act (actus reus):

‘Actus Reus’ is the third and important essential element of crime. It is the Latin
term used to describe a criminal activity and is defined as a criminal activity that
was the result of voluntarily bodily movement. This describes a physical Activity
that harms another person or damages property. Prof. Kenny has defined it as, “such
result of human conduct as the law seeks to prevent.” He was the first writer who uses
the term ‘Actus reus’. Russel called it “Physical result of human conduct.” Prof.
Jerome Hall said that it is something in addition to a mens rea is required to produce
criminal harm.

Only a human being and evil intent are not enough to constitute a crime because
you can’t know the intentions of a man. The only intent of a person is not
punishable. Intention or mens-rea alone shall not constitute a crime unless it is
followed by some external or overt act which is forbidden by some prevailing
law. Generally, omitting to do something will not amount to actus resus of an offence.
The criminal law usually punishes individuals for positive conduct and not for
inaction. There are, however, some notable exceptions. For example, a police officer
may have a duty to act to prevent an assault and if he does not, he will be liable to be
punished under the law.

Section 32 of the Indian Penal Code provides that “ Words referring to acts include
illegal omissions.—In every part of this Code, except where a contrary intention
appears from the context, words which refer to acts done extend also to illegal
omissions.”

The words ‘illegal or legally bound to do’ have been defined under Section 43 of
Indian Penal Code, which provides that – “Illegal”, “Legally bound to do”.—The
word “illegal” is applicable to everything which is an offence or which is prohibited
by law, or which furnishes ground for a civil action, and a person is said to be “legally
bound to do” whatever it is illegal in him to omit.”

So the act or omission must be forbidden by the law and to constitute a crime the
intent and act must both concur.

Notes:

o When the criminal actions are involuntary the concept of actus reus is not
applied. This includes acts that occur as a result of a spasm, any movement
made while a person is asleep or unconscious, or activities participated in while
an individual is under a hypnotic trance. In these scenarios a criminal deed may
be done, but it is not intentional and the responsible person will not even know
about it until after the fact.
o A crime is constituted even though the act is not done with a guilty mind. For
Example:- The offence of Bigamy under Section 494 of Indian Penal Code.
o There are some cases although where no injury has been caused to any person
but they are Crimes, such as ‘Attempt’, ‘Abetment’ and ‘Conspiracy’.
o There are some crimes where there is neither actus reus nor injury to a human
being but still, they are crimes such as making Preparation to commit Dacoity
under Section 399 and Assembling for the purpose of Committing Dacoity
under section 402 of Indian Penal Code.

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Injury to Victim of Crime:

The fourth essential of crime is the ‘Injury’ to another person or to society at large.
Such injury must be illegally caused to a person. To constitute a crime, there must
always be result brought about human conduct, a physical event which the law
prohibits.

The word ‘Injury’ has been defined under Section 44 of Indian Penal Code as “the
word ‘injury’ denotes any harm whatever illegally caused to any person in body,
mind, reputation or property”. Thus, the word ‘injury’ is wide enough to include all
injuries caused by tortious act.

The threat of injury is also punishable under the Indian Penal Code as there are three
sections in the Code which specifically deals with the threat of injury

o Section 189- Threat of injury to a public servant,

o Section 190 – Threat of injury to induce a person to refrain from applying for
protection to a public servant, and
o Section 385- Putting a person in fear of injury in order to commit extortion.
Whenever the crimes are committed, the loss to the person (injury) is stated as a
public wrong. The victim’s loss is not that essential to commit a crime, as there are
certain crimes on the basis of culture, morality or decency e.g. Adultery.

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Prohibited Act:

An offence when committed, ought to have been prohibited under some prevailing
law unless specifically mentioned. It is a general rule of criminal law that no offence
can be punished retrospectively if the said act did not constitute an offence at the time
the said act was committed. The prosecution must prove that the accused party was
responsible for a deed prohibited by criminal law. Note that an act, howsoever
immoral shall not be an offence unless it is prohibited by law of the land.

No crime is committed when a person exercising his lawful right of private defence
cause harm to another. Likewise, if an onlooker who happens to be a good swimmer
does not rescue a child about to be drowned in a pond he is not liable for any offence
because there was no legal duty on his part to rescue a person.

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Punishment:

The act in order to constitute a crime should not only be prohibited by the law but
should also be punishable by the State. The punishment is usually set out in terms of a
maximum and the actual punishment in any particular case is left to the discretion of
the judge. The punishment ranges from capital punishment to paltry fine. Similarly, it
should be ensured that the offender is not subjected to ‘double jeopardy’ i.e. being
subjected to double punishment for the same crime. Both, the defence and the
prosecution have a right to appeal against the quantum of sentence.

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External Consequences:

Crime always has a harmful impact on society be it social, personal, mental, or

physical.

Relativity:

An activity which is termed as a crime (e.g. alcohol consumption, gambling, etc.) at

one place (say public places) may not be crime at the other place.
Concept of Mens Rea (guilty Mind)
Concept of Mens Rea (guilty Mind)

List of Sub-Topics:

o Introduction
o Mens Rea
o Intention
o Knowledge
o Negligence
o Recklessness
o Transferred Intent

There is a Latin maxim “actus non facit reum nisi mens sit rea” which means an act
does not make one guilty unless there is criminal intent. This maxim can be
considered as a cardinal rule of criminal law. There are two necessary elements in a
crime, namely, a physical element i.e “actus reus” and secondly, a mental element
“mens rea”. The actus reus may be an act of omission or an act of commission’ but in
order that the actus reus may be punishable, it must jointly be accompanied by a guilty
mind i.e. mens rea. The existence of the mental element or guilty mind or the mens rea
at the time of the commission of the actus reus or the act alone will make the act of the
actor an offence.

Mental Element in Crime:

The state of mind of the accused is relevant in several areas of criminal law. Chapter
IV of General Exceptions of the Indian Penal Code, 1860 gives provision in which
mental state of accused is. The principle behind chapter IV, for General Exceptions, is
based upon the Latin maxim, “actus non facit reum nisi mens sit rea‘ i.e. an act is not
criminal unless there is criminal intent. considered.

Plea of Infancy:

Under Section 82 of the Indian Penal Code, 1860, a child under 7 is never criminally
liable. Under Section 83 of the Indian Penal Code, 1860, one aged 7-12 is so liable
only if he has mischievous discretion.

In Pratap Singh v. State of Jharkhand, AIR 2005 SC 2731, the Court observed:
“mind at that age could not be said to be mature for imputing mens rea as in the case
of an adult”.
Plea of Insanity:

Under Section 84 of the Indian Penal Code, 1860, the mentally disordered state of
mind may be looked at, e.g. in the defences of insanity and diminished responsibility.

In T. N. Lakshmaiah v. State of Karnataka, AIR 2001 SC 3828 case the Court held
that where he lacks mens rea even through insanity, he is entitled to an acquittal”

Act under Free Will?

The principle behind the chapter IV, for General Exceptions is based upon the maxim,
“actus non facit reum nisi mens sitred’ i.e. an act is not criminal unless there is
criminal intent. At times the state of mind is relevant to the question of voluntariness.
Is the accused acting of his own free will?

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Mens Rea:
Mens rea is the state of mind which indicates culpability, which is required by a
statute as an element of the crime. As a general rule, every crime requires a mental
element i.e. some blameworthy mental condition. Expressions connoting the
requirement of blameworthy mind mental element include: “with intent, knowingly,
recklessly, unlawfully, maliciously, knowing or believing, fraudulently, dishonestly,
corruptly allowing and permitting.”

Mens rea may, however, be direct or implied. Mens rea implies that there must be a
state of mind with respect to an actus reus, that is, an intention to act in the prescribed
fashion. It is, however, important to distinguish mens rea from motive. Thus, if a
person steals away a few loaves of bread from someone’s kitchen to feed a child who
is dying of hunger, the motive here may be honourable and understandable,
nevertheless, the mens rea being to commit the theft, the person would be convicted
for theft. His motive may, however, be taken into account in sentencing and he may be
less severely punished because of his good motive. In short, motive should be taken
into consideration at the sentencing stage and not at the time of deciding the question
of mens rea i.e. during the investigation.

If the offender has been found guilty of wrongful intentions, he shall be prosecuted by
the court of law. The absence of guilty intentions may save him from punishment.

In the United States v. Currans 290, F. 2 d 751 (3 rd Cir. 1961) case, Biggs, Chief
Justice observed: “The Concept of Mens Rea, guilty mind, is based on the assumption
that a person has the capacity to control his behaviour and to choose between
alternative courses of conduct. This assumption, though not unquestioned by
theologians, philosophers, and scientists, is necessary to maintain and administration
of social controls. It is only through this assumption that society has found it possible
to impose duties and create liabilities designed to safeguard persons and property…
Essentially these duties are intended to operate upon the human capacity for choice
and control of conduct so as to inhibit and deter socially harmful conduct. When
person possessing capacity for choice and control, nevertheless breaches a duty of this
type he is subjected to the sanctions of criminal law.”

In Ganesan v. State, Criminal Appeal (MD) No. 22 of 2011, the Madurai bench of
Madras High Court observed that intention is different from motive or ignorance or
negligence. Intention requires something more than the mere foresight of the
consequences. The intention is a conscious state in which mental faculties aroused
into activity and summoned into action for the purpose of achieving the conceived
end. Thus in the case of intention, the mental faculties are projected in a set direction.

In Basdev v. State of Pepsu, AIR 1956 SC 488 case, the Court observed that
‘Motive’ is something which prompts a man to form an ‘intention’ and a ‘knowledge’
is the awareness of the consequences of the act.

In Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420 case the Court
observed that sometimes, ‘motive’ being a compelling force to commit a crime
becomes a relevant factor.

In State of U.P. v. Arun Kumar Gupta, (2003) 2 SC 20, the Court has categorically
declared that proof of ‘motive’ in the absence of the proof of the essential ingredients
of the offence would of no avail for convicting the accused.

In Virsa Singh v. State of Punjab, AIR 1958 SC 465 at 467 the court was dealing
with a case where the accused had thrust a spear into the abdomen of the deceased
woman which penetrated deep cutting through the intestine. The court held in the
absence of evidence or reasonable explanations, that the person did not intend to stab
in the stomach with a degree of force sufficient to penetrate that far into the body or to
indicate that his act was a regrettable act and that he intended otherwise, it would be
perverse to conclude that he did not intend to inflict the injury that he did. Once that
intent was established the rest was a matter for objective determination from the
medical and other evidence about the nature and seriousness of the injury. Therefore,
whether the intention is there or not is one of fact and not one of law.

In Rawalpenta Venkalu v. State of Hyderabad, AIR 1956 SC 171 case, the

Supreme Court observed that the intention to kill the deceased was clear from the fact
that the accused took care to lock the door from the outside so that his servant sleeping
outside could not be of help to the deceased who had been trapped in his own cottage
which was set on fire by the accused. Furthermore, when the villagers were roused
from their sleep and tried to proceed towards the cottage which was on fire, they were
prevented from rendering any effective help to the helpless deceased, by the use of
force against them by the accused. Thus the accused took active steps to prevent the
villagers from bringing any succour to the man who was being burnt alive. Thus the
intention of the accused to kill the deceased was clear.

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Intention:
“Intention is the result of deliberation upon motive. Intention is a conscious state of
mind in which mental faculties are roused in the activity and summoned into action
for the deliberate purpose of being directed towards a particular and specified object
and which the human mind conceives and perceives before itself, and represents that
state of mind of a person in which he not only foresees but also desires the possible
consequences of his conduct.

Salmond Explains: “Intention is the purpose or design with which an act is done. It is
the fore-knowledge of the act, coupled with the desire of it, such fore-knowledge and
desire being the cause of the act, inasmuch as they fulfill themselves through the
operation of the will”

According to Salmond intentions are divisible into immediate intentions

and ulterior intentions. The former “relates to the wrongful act itself; the
latter relates to the objects for the sake of which the act is done”

Distinguishing Between Intention and Motive:

Intention Motive

Intention refers to purposeful action and a conscious Motive alludes to the ulterior cause, which i
decision to perform an act, which is forbidden by law. person to do or abstain from doing a particul

It is the objective of the act It is the driving force for the act

It is expressed It is implied

It is substantial to determine criminal liability. It is insubstantial to determine criminal liabil

With few exceptions, the prosecution in a criminal case

Proof of motive is not required in
must prove that the defendant intended to commit the illegal
prosecution.
act.

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Knowledge:
 To know a thing means to have a mental cognition of it. Knowledge is the awareness
of the consequence of an act. A man may be aware of the consequence of an act,
though he may not intend to bring them about. Thus a knowledge indicates that the
accused is aware of the nature of the act and its probable consequences.

Knowledge and reasonable is purely an operation of the mind and is often difficult to
prove. Therefore, it is inferred from the surrounding circumstances and the acts of the
person.

In Emperor v. M.T. Dhirajia AIR 1940 All. 486 at p.488. case, bringing out the
distinction between ‘intention’ and ‘knowledge’ the Allahabad High Court has
observed that some degree of ‘knowledge’ must be attributed to every sane person.
Obviously, the degree of ‘knowledge’ which any particular person may assume to
possess must vary for instance to instance. We cannot attribute the same knowledge to
an uneducated as to the educated person. But to some extent knowledge must be
attributed to everyone who is of sane mind. However, primitive a man and woman
may be and how frightened he or she may be the knowledge of the likely consequence
of jumping into the well with a child, as in the instant case, being so eminently
dangerous an act must be supposed to have remained with him or her. Knowledge of
the consequence that can be attributed to an accused in a given case will depend upon
the facts of each case. A blow is not per se and necessarily a fatal act, especially if the
blow be given with the fist or one of the less-lethal weapons. This is a question of
degree, a question of force, a question of position and so forth and, therefore, in these
cases, there is ample room for argument as to whether in any particular case having
regard to the manner in which the particular blow or blows in that case was or were
delivered, there was behind it the knowledge that it was likely to result in death. The
court observed that in Dhirajia’s case the character of the act was fundamentally
different. The act of jumping into the well with a six months old baby in one’s arm
could, but for a miracle, for only one conclusion that the consequences must have
been within her knowledge, but not within her intention. Though she did not intent to
kill or cause bodily injury to her daughter but the court held that as a sane person she
ought to have known that the act of jumping into the well along with the child was in
all probability likely to cause the death of the child and she could not escape the
liability under the criminal law even though she had no intention to kill or intention to
cause bodily injury to the child.

Distinguishing Between Intention and Knowledge

Intention Knowledge

Intention is a desire of a conscious mind to commit an Knowledge is a state of mental realisation that causes the
act. mind to receive passive ideas and impressions on it.

Intention to commit a crime is seen from the act which In knowledge there is a possible information of the
a person commits. consequences of an act.
An intention is considered as a careful action and effort
A knowledge may or may not lead us to crime.
to break the law and commit the criminal offence.

In intention there is certainty of outcome In knowledge there is no certainty.

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Negligence:
A person is said to be negligent when he does not use such care and attention as it was
his duty to use. Negligent wrongdoing is that which is not intentional but results from
culpable inadvertence or indifference. The mental attitude of the wrong dower consists
not in any desire to do harm, but in the absence of a sufficient desire to avoid it. The
law is not satisfied with the mere absence of any intention to inflict injury but
demands a positive direction of the Will towards the avoidance of it. Thus negligence
means the absence of such care as it is legal duty to use. It is the state of mind of a
man, who pursues a course of conduct without adverting at all to its consequences.
Negligence is used to denote want of care and precaution, which a reasonable man
would have taken under the particular circumstances of the case. Criminal negligence
will include recklessness and gross negligence.

There is no question of mens rea in civil suits for damages for the injury caused by the
negligence of the defendant, but in criminal proceedings, the liability of the accused to
punishment depends upon the existence of mens rea.

Under the Indian Penal Code, only a few negligent acts have been made penal, when
they affect the safety of the public, such as rash driving or riding on the public road,
rash navigation of the vessel, negligently conveying for hire any persons by vessel. In
all these are thirteen sections viz: Sections 279, 280, 283, 284, 285; 286, 287, 288,
289, 304A, 336, 337, and 338 which deal with cases of criminal negligence.

Distinguish Between Intention and Negligence:

Intention Negligence

Intention is a desire of a conscious mind to Negligence is the state of mind of a man, who pursues a c
commit an act. conduct without adverting at all to its consequences.

There is a desire to create harmful

Negligent wrong doer is careless.
consequences.

The willful wrong doer is liable because he The negligent wrong doer is liable because he does not su
desires to do the harm. desire to avoid it.
 What is done intentionally is not
What is done negligently is not done intentionally
done negligently

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Recklessness:
Recklessness is the state of mind of a person, who foresees the possible consequences
of his conduct, but acts without any intention or desire to bring them about. It may be
that the doer is quiet indifferent to the consequences or that he does not care what
happens. In all such cases, the doer is said to be advertently negligent, or reckless
towards the consequences of the act in question. It is a lower level of culpability than
knowledge. The degree of risk awareness is key to distinguishing a reckless intent
crime from a knowing intent crime. The main essentials of recklessness are:

o the defendant must consciously disregard a substantial risk of harm

o the defendant must take an unjustifiable risk.

Distinguish Between Intention and Recklessness:

Intention Recklessness

Recklessness is the state of mind of a person, who foresees the

Intention is a desire of a conscious
consequences of his conduct, but acts without any intention or desire
mind to commit an act.
them about.

There is a desire to create harmful

There is indifference towards consequences of conduct
consequences.

The willful wrong doer is liable

The reckless wrongdoer is liable for careless behaviour
because he desires to do the harm.

Murder is willful homicide. death caused by rash or negligent act is culpable homicide

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Transferred Intent:
When a person intends to commit a particular crime and does an act which would
constitute an offence, if directed against the person who actually becomes the victim
of his act, he may be convicted notwithstanding that the crime takes effect in a manner
which was unintended or unforeseen. This has been treated so on the ground that there
is a transferred intention or transfer malice. Transferred intent is only relevant in
crimes that require a bad result or victim. In a case where the intent is transferred, the
defendant could receive more than one criminal charge, such as a charge for
“attempting” to commit a crime against the intended victim.

For instance, A and his friend B get into an argument at a crowded bar. A punches his
fist aiming for B’s face. B ducks and A punches C in the face instead. A did not intend
to attack C. However, it is unjust to allow this protective action of B’s to excuse A’s
conduct. Thus A’s intent to hit B transfers in some jurisdictions over to C. A can also
be charged with attempted battery, which is assault, of B, resulting in two crimes
rather than one under the transferred intent doctrine.

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Conclusion:
Mens rea is an important element of crime means guilty mind. “Intention” is a state of
mind consisting of desire that certain consequences shall follow from the act or illegal
omission. “Intention” may be inferred from that act. The presumption relating to
“intention” is that every person is presumed to intend the natural consequences of his
act. If the offender has been found guilty of wrongful intentions, he shall be
prosecuted by the court of law. The absence of guilty intentions may save him from
punishment.

Stages of Commission of Crime

Law and You > Criminal Laws > Bharatiya Nyaya Sanhita, 2023 > Stages of
Commission of Crime

In last articles, we have discussed what is crime and what are are its ingredients. In
this article, we shall discuss different stages of commission of crime.

List of Sub-Topics:

o Introduction
o Stage 1: Intention
o Stage 2: Preparation
o Stage 3: Attempt
o Stage 4: Accomplishment

If a person commits a crime voluntarily or after premeditation, the doing of it involves

four stages. As in every crime firstly, there must be an intention to commit it, then
there must be necessary preparation to commit it, then there is an attempt to commit it.
If such attempt succeeds, he is said to have committed the offence. If such an attempt
fails he is said to have committed the attempt to commit the offence. Thus, the Stages
in the Commission of Crime are:-

o Intention
o Preparation
o Attempt
o Accomplishment.

Intention:

The intention is the first stage in the commission of an offence and known as a mental
stage. The intention is the conscious excise of the mental faculties of a person to do an
act for the purpose of satisfying a purpose. Criminal intent is the conscious decision
someone makes to deliberately engage in an unlawful or negligent act or to harm
someone else. For example, in the case of murder, the intention is to cause death. In
the case of theft, an intention is to steal. In the case of rape an intention to have
forcible sexual connection with a woman without her consent.

This stage exists when the culprit first entertains the idea or intention to commit an
offence. The law does not take cognizance as mere entertaining an idea or intention is
too early a stage to make a person punishable given the fact, there is enough scope and
time for a person to change his mind
and not to give effect to his idea or intention;

In the Indian Penal Code, the term intention is not used in every section but in various
sections, it is express by using the word voluntarily or knowingly section 39 of IPC
defined the term voluntarily. According to Section 39: “A person is said to cause an
effect voluntarily when he causes it by means whereby he intended to cause it, or by
means which at the time of employing those means he knows or had reason to believe
to be likely to cause it”. The definition itself gives importance to cause rather than the
act means the effect is more important by the term voluntarily it is to be understood in
relation to causation of effect and not to doing of acts, which those affect the result.

Mens rea is a legal phrase used to describe the mental state of a person while doing
any act, some intention is there. A mere intention to commit a crime is not punishable
because it is very difficult for the prosecution to prove the guilty intention of a person
and the court is also unwilling in punishing a person for mere guilty intention. In
Indian criminal law also, a mere intention to commit a crime is not punishable except
in following exceptional cases where the law takes notice of an intention to commit a
crime as they have been considered to be the serious offences and mere preparation of
it is punishable as it is to be checked or prevented at the earliest stage.

o ‘Waging War against the Government’ under Section 121 to 123 of the Indian
Penal Code
o ‘Sedition’ under Section 124 A of Indian Penal Code,
 o A mere ‘Assembly of Persons for Committing the Dacoity’ is punishable under
Section 402 of Indian Penal Code.
o Under section 292 of the Indian Penal Code, criminal liability can be imposed
on the person dealing with selling, hiring, distributing the obscene books.
o The persons who have been engaged in the ‘Criminal Conspiracy’ specified
under Section 120 A of Indian Penal Code shall be liable to be punished
although he has not himself committed the impugned act.

According to Section 120-A of Indian Penal Code- “When two or more persons agree
to do or cause to be done:- (i) an illegal act or (ii) an act which is not illegal by illegal
means, such an agreement is designated a criminal conspiracy”. But the mere
agreement is not punishable as proviso added to the section requires that some act
besides the agreement must be done.

Chapter IV of the Indian Penal Code deals with ‘General Exception’ wherein the act
which otherwise constitutes offence ceases to do so under certain circumstances set
out in this chapter. This chapter provides certain circumstances under which though
the person commits the act, it results in the injury but due to absence of the
blameworthy mind, that act is not liable for any punishment or it is exempt from the
punishment. This chapter provides the circumstances, which are nothing but the
principles of the common law system. All these general exceptions are recognized the
concept of mens rea in the IPC.

Preparation:

‘Preparation’ is the second stage in the commission of a crime. It means arranged

means and measures necessary for the commission of a crime. Generally, it is not
punishable because it is impossible to show that preparation was directed towards the
wrongful end or was done with evil intent or mind. The existing laws allow a principle
of ‘Lous poenitantae’ which means an ‘opportunity to repent’.

Here again, the law does not take cognizance, except in certain cases for which
provision has been made in the Indian Penal Code itself making preparations
punishable, as there is still enough time for a person to change his mind. Thus the law
doesn’t punish the person unless he has passed beyond that stage of preparation.

If ‘A’ acquires a revolver from certified ammunition store with a license with
intention to kill his bitter enemy ‘B’ and keeps the same in his pocket duty loaded. But
he does nothing more than that. A has an intention and made preparation to carry out
his intention but he has not committed the offence. At this stage, it is impossible to
prove that ‘A’ had the loaded revolver only with the intention of killing ‘B’.

In Noorbibi v. State, AIR 1952 J and K 55 case, the accused without proper
permission was going towards the border with the object of stepping into Pakistani
territory and was arrested before reaching the border. It was held that there could be
no presumption that whosoever moved towards the border would necessarily cross
over.

In R. v. Robinson, 14 (1915) 2 KB 342 case, a Jeweller in order to make a false claim

to an Insurance Company pretended that his shop had been burgled and informed the
police accordingly. The investigation was held by the police, in which the truth was
made known to them that the Jeweller had made the false complaint. Then he was
prosecuted for it. But he was held not guilty as he was still preparing to commit the
crime. He could have been guilty for it only if he had submitted the claim to the
insurance company.

In Malkiat Singh v. State of Punjab, (1968) 2 SCR 663 case, a truck carrying paddy,
was stopped before the Delhi-Punjab boundary. The question was whether the accused
were attempting to export paddy from Punjab to Delhi without a permit in violation of
the Essential Commodities Order. It was held that on the facts of the case that the
offence of attempt had not been completed. The Court observed: The test for
determining whether the act of the appellants constituted an attempt or preparation is
whether the overt acts already done are such that if the offender changes his mind and
does not proceed further in its progress, the acts already done would be completely
harmless. In the present case, it is quite possible that the appellants may have been
warned that they had no licence to carry the paddy and they may have changed their
mind at any place between Samalkha Barrier and the Delhi-Punjab boundary and not
have proceeded further in their journey.

There are some offences, so grave that it would be of utmost importance to stop them
at the stage of preparation itself. That is why such offenses are punishable even before
the actual commission of the crime i.e. at the very preliminary stage i.e. mere at the
preparation stage.

o Preparation to wage war against the Government (Section 122).

o Preparation to commit depredation on territories of power at peace with the
Government of India (Section 126).
o Making or selling instrument for Counterfeiting of Coins (Section 233 to 235 )
o Making or selling instrument for printing Government Stamps (Section 255 and
257)
o Possessing Counterfeit Coins, False Weight or Measurement and Forged
Documents (Section 242, 243, 259, 266 and 474)
o Preparation to commit dacoity (Section 399).

Mere possession of these things is a crime and a possessor can’t plead that he was still
at the stage of preparation.

Attempt:
The ‘Attempt’ is the third stage in the commission of a crime. It is also known as a
‘Preliminary Crime’. The term ‘Attempt’ means “the direct movement towards the
commission of a crime after necessary preparation has been made.” Prof. Kenny and
Sir James Stephen called the term ‘attempt’ as ‘inchoate crime’ which connotes
something which is yet to be completed.

Ingredients of the Attempt

o Guilty intention to commit an offence;

o Some act done towards the commitment of the crime; and
o The act must fall short of the completed offence.

The term ‘attempt’ has nowhere been defined in the Indian Penal Code but simply
provides for its punishment. An attempt is made punishable because every attempt;
although it falls short of success, must create alarm, which itself is an injury. Although
the injury is not as great as it would be if the act had been committed but it is
punishable because it creates an alarm to other person.

In State of Maharashtra v. Mohd. Yakub, (1980) 3 SCC 57 case, the customs

department received some secret information from their sources that a jeep and truck
of particular registration number were transporting silver from Mumbai to a lonely
coastal area which lies near Bassein. After receiving this information, authorities went
to keep watch on the two vehicles. In Midnight they saw the said vehicles coming
from Mumbai. The customs department followed them. The vehicles stopped near the
sea-coast and the people started removing some bundles and packets from the truck
and placing them on the ground. At the same time, the sound of the engine of a
mechanized sea-craft from the side of the creek was heard by the authorities. The
authorities of the Customs department surrounded and caught them. Officers found
four silver ingots on the ground and 39 silver ingots concealed in a shawl and dust
bags. The authorities prosecuted the accused for the offence of attempting to smuggle
silver ingots from India. The Supreme Court held that the intention of the accused to
export the sliver from India by sea was clear from the circumstances enumerated
above. They were taking the sliver ingots concealed in the two vehicles under cover of
darkness. They had reached close to the seashore and had started unloading the sliver
there near a creek from where the sound of the engine of a sea-craft was also heard.
The court held that the accused had gone beyond the stage of preparation, and most of
the steps necessary in the course of export by sea had been taken. The only step that
remained to be taken towards the export of the silver was to load it on a sea-craft for
moving out of the territorial waters of India. But for the intervention of the officers of
the law, the unlawful export of silver would have been consummated. The clandestine
disappearance of the sea-craft when the officers intercepted and rounded up the
vehicles and the accused at the creek reinforced the inference that the accused had
deliberately attempted to export silver by the sea in contravention of the law.
In Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698 case, the appellant
wanted to get enrolled himself in Patna university to give an M.A. examination by
misrepresenting that he has a B.A. degree and currently he had been working as a
teacher in a school. The university after giving him admission got to know that he
forged those documents which he submitted and he had not been working as a teacher
anywhere. The university brought the charges against the appellant. The court held
that the preparation was complete when he had prepared the application for the
purposes of submission to the University in which he had made false representation
about his qualification and about his experience that he was an experienced teacher
when he was neither qualified to apply for the admission nor had he the requisite
teaching experience to entitle him consideration for admission to the course. The court
held that the moment he dispatched it, he entered the realm of attempting to commit
the offence of “cheating”. He did succeed in deceiving the University and induced it
to issue the admit card. He just failed to get it and sit for the examination because
something beyond his control took place inasmuch as the University was informed
about his being neither a graduate nor a teacher. The court accordingly held that he
had been rightly convicted of the offence under Section 420, read with Section 511 of
the IPC.

In Om Parkash v. State of Punjab, AIR 1961 SC 1782 case, Bimla Devi, was
married to the appellant in October 1951. Their relations got strained by 1953. She
was, ill-treated and her health deteriorated due to alleged maltreatment and deliberate
under-nourishment. In 1956, she was deliberately starved and was not allowed to
leave the house. On June 5, 1956, she happened to find her room unlocked and
availing of the opportunity went out of the house and managed to reach the Civil
Hospital, Ludhiana. She informed there that she was kept locked in a room for a long
time and was beaten by all the above and was starved.

the Supreme Court held that the principles which govern the liability under Section
511 also govern the attempt to commit murder under Section 307. The court held that
a person commits an offence under Section 511, when he intends to commit that
particular offence and, having made preparations and with the intention to commit that
offence does an act towards its commission and that such an act need not be
penultimate act towards the commission of that offence, but must be an act during the
course of committing such offence. It follows, therefore, that a person commits an
offence under Section 308 when he has an intention to commit culpable homicide not
amount to murder and in pursuance of that intention does an act towards the
commission of that offence whether that act is the penultimate act or not. The court
further observed that Sections 308 and 511 are expressed in similar language and,
therefore, on parity of reasoning, a person commits an offence of culpable homicide
amounting to murder under Section 307 when he has an intention to commit murder
and in pursuance of that intention does an act towards its commission irrespective of
the fact whether that act is the penultimate act or not. The court further held that the
word act denotes. a series of the act and similarly and so does an illegal omission
denote series of illegal omissions. In this case, the husband and the mother-in-law of
the victim had subjected her to acts of cruelty and they had the intention to kill her by
starvation. The girl had become a bonny skeleton by their willful omission to provide
food to her. She had managed to run away and thus was saved. The court nonetheless
held that the accused having guilty mind by subjecting her to starvation by providing
her occasionally only the morsel of food, had not only prepared to commit an offence
of murder but had illegally been omitting their duty to provide her food and, therefore,
had attempted to commit her murder and, therefore, were liable to punishment under
Section 307.

In Asgarali Pradhania v. Emperor, AIR 1933 Cal 893 case, where accused
attempted to cause miscarriage of the woman with whom he had illicit relations and
who had become pregnant by administering a substance which could have caused a
miscarriage. But the preparation of that substance was defective and there was no
miscarriage. The Court didn’t held accused guilty of attempting to cause a miscarriage
of the woman. The Court observed that although he had brought mixture which he
tried to administer with intent to cause miscarriage, the substance that he administered
was innocuous and was not capable of causing miscarriage and, therefore, the
preparation was defective and the act done by him was a useless act which could not
be said to be an act towards the commission of an offence of causing miscarriage. The
court held that there is a distinction between acts which are capable of producing
forbidden consequences but the consequence do not result in one because of some
supervening circumstance intervening independent of the accused and an act which is
intrinsically useless and incapable of producing forbidden consequence because
impossibility lies with the accused. In the former case he is while as in the latter he is
not liable for an attempt to commit the offence.

Attempts which are Punishable:

Under the Indian Penal Code, the term ‘Attempt’ has been described in three different
ways

o Completed offences and attempts have been specified in the same section and
same punishment is prescribed for them. Such provisions are Sections 121,
124, 124-A, 125, 130, 131, 152, 153-A, 161, 162, 163, 165, 196, 198, 200, 213,
239, 240, 241, 251, 385, 387, 389, 391, 394, 395, 397, 459 and 460.
o There are some grave offences, where attempts are described separately and
specific punishment is prescribed for them. These provisions are as follows:-

1. The offence of ‘Murder’ is punishable under Section 302 and the offence of
‘Attempt to Murder’ is punishable under Section 307.
2. The offence of ‘Culpable Homicide’ is punishable under Section 304 and the
offence of ‘Attempt to Commit Culpable Homicide’ is punishable under
Section 308.
3. The offence of ‘Attempt to Commit Suicide’ is punishable under Section 309.
In Gian Kaur v. State of Punjab, (1996), 2 SCC 648) case the Supreme Court
has held constitutional validity of Section 309. In this case, the completed
 offence is not punishable (since offender would be dead) and as such, there is
no provision for the punishment.
4. The offence of ‘Robbery’ is punishable under Section 392 and the offence of
‘Attempt to Commit Robbery’ is punishable Under Section 393 and ‘if such
Attempt is committed by a person Armed with the Deadly Weapons’, he is
liable to be punished under Section 398.
5. The offence of ‘Dacoity with Murder’ is punishable under Section 396 and the
offence of Dacoity with an ‘Attempt to cause Death’ is punishable under
Section 397.
6. The offence of ‘Voluntarily causing Hurt in committing Robbery’ is punishable
Under Section 394 and the offence of ‘Attempt to cause Grievous Hurt in
committing the Robbery’ is punishable Under Section 397.

o All other cases where no specific provisions have been made in the code
relating to Attempt shall be covered under Section 511 of the Code, which
provides that the accused shall be punished with the 1/2 of the largest term of
imprisonment provided for the offence or with the fine or with both. For
Example:- A person has committed an offence of attempt to commit theft and
there are no specific provisions for the punishment but the offence of theft is
punishable with the imprisonment for a term of three years. So, the punishment
for the offence of attempt to commit theft would be one and a half years of
imprisonment or with fine or with both, by virtue of Section 511 of the Code.

Accomplishment:

This is the final stage of a crime. Generally, most of the crimes are punishable only
after the crime has been committed. If the accused commits an attempt to commit the
crime and such attempt succeeds, he will be liable for the offence. If such an attempt
is unsuccessful, he will be liable for the attempt to commit the offence.

If ‘A’ acquires a revolver from certified ammunition store with a license with
intention to kill his bitter enemy ‘B’ and keeps the same in his pocket duty loaded. But
he does nothing more than that. A has an intention and made preparation to carry out
his intention but he has not committed the offence. ‘A’ locates ‘B’ in the garden and
fires at him. If the bullet strikes ‘B’ causing fatal injuries leads to death, then the
attempt is successful and the intention of ‘A’ accomplished. ‘A’ would be liable for
the offence of ‘Murder’ under Section 302 of the Indian Penal Code. If ‘B’ got injured
then ‘A’ would be liable for the Offence of ‘Attempt to Murder’ under Section 307 of
the Indian Penal Code.

Conclusion:

Mere intention to commit a crime except for some exceptions is not punishable. To
make a person liable for an attempt to commit an offence the Court has been at a point
to make a distinction between “attempt” which is punishable and preparation” which
except for in some exceptional cases is not as much punishable because the theory is
that a person can always change his mind and not proceed beyond the stage of
preparation. Accomplishment or commission of a crime is always punishable under
IPC.

Act of Commission and Act of Omission

Law and You > Criminal Laws > Bharatiya Nyaya Sanhita, 2023 > Act of
Commission and Act of Omission

Act means to do something. A criminal act, also known as a criminal offense or crime,
refers to any act or behaviour that is prohibited by law and punishable by the state.
Criminal acts encompass a wide range of behaviours, from minor infractions such as
traffic violations to serious offenses such as murder or terrorism. According to Section
2(1) of the Bharatiya Nyaya Sanhita, 2023, an “act” denotes as well a series of acts as
a single act. In this article let us discuss act and omission under the Sanhita.

Kinds of Criminal Acts:

‘Actus Reus’ is the important essential element of crime. Intention or mens-rea alone
shall not constitute a crime unless it is followed by some external or overt act which is
forbidden by some prevailing law. The words ‘illegal or legally bound to do’ have
been defined under Section 43 of Indian Penal Code, which provides that – “Illegal”,
“Legally bound to do”.—The word “illegal” is applicable to everything which is an
offence or which is prohibited by law, or which furnishes ground for a civil action,
and a person is said to be “legally bound to do” whatever it is illegal in him to omit.”

Criminal acts can be classified as acts of commission or acts of omission, depending

on whether they involve the performance of an action or the failure to act when there
is a legal duty to do so.

Acts of Commission:
Criminal acts of commission refer to actions that are taken by individuals that directly
violate the law. These are active behaviours that are expressly prohibited by statutes or
legal codes. Some examples of criminal acts of commission are as follows:

o Assault and Battery: The intentional and unlawful use of force or violence
against another person, which can result in physical harm or injury.
o Theft: The unlawful taking of someone else’s property without their consent,
with the intent to permanently deprive them of it. This includes offenses such
as burglary, robbery, and shoplifting.
o Fraud: Deliberately deceiving someone for personal gain, often involving false
representation or omission of information. Examples include identity theft,
credit card fraud, and insurance fraud.
o Drug Trafficking: The illegal sale, transportation, or distribution of controlled
substances, such as narcotics or illegal drugs, often on a large scale.
o Homicide: The unlawful killing of another person, which can range from
murder (intentional killing) to culpable homicide (unintentional killing) based
on the circumstances and intent.
o Arson: The intentional setting of fires to property or structures without
permission, often for malicious reasons or financial gain.
o Sexual Assault: Non-consensual sexual contact or behaviour, including rape,
molestation, and sexual harassment.
o Terrorism: Acts of violence or intimidation carried out for political,
ideological, or religious purposes, with the intention of instilling fear in a
population or influencing government policies.
o Cyber Crimes: Illegal activities conducted using computers or computer
networks, such as hacking, malware distribution, or cyber espionage.
o Public Order Offenses: Behaviours that disrupt public order or violate societal
norms, such as unlawful assembly, disorderly conduct, public intoxication, or
disturbing the peace.

These are just a few examples of criminal acts of commission, but there are many
other offenses that fall under this category, ranging from relatively minor infractions
to serious felonies, each with its own legal consequences and penalties.

Acts of Omission:

Criminal acts of omission refer to situations where individuals fail to perform actions
that they are legally obligated to do, resulting in harm or violating the law. These are
instances where individuals have a duty to act, but they fail to fulfil that duty, leading
to criminal liability. Some examples of criminal acts of omission are as follows:

o Failure to Provide Assistance: In some jurisdictions, individuals are legally

required to provide assistance to those in need, especially in emergency
situations. Failing to render aid to someone in danger, such as leaving the scene
 of an accident without reporting it or failing to help a person who is injured,
may be considered a criminal act.
o Child Neglect or Abuse: Parents or guardians have a legal duty to care for and
protect their children. Failing to provide adequate food, shelter, medical care,
or protection from harm can constitute neglect or abuse, resulting in criminal
charges.
o Elder Abuse: Similar to child neglect, caregivers or family members may have
a legal obligation to provide for the needs and safety of elderly or vulnerable
adults. Failing to do so, such as withholding necessary medical care or financial
resources, can lead to criminal charges for elder abuse.
o Failure to Report a Crime: In some cases, individuals may be required by law
to report certain crimes or suspicious activities to the authorities. Failing to
report a crime, especially if it results in harm to others or facilitates criminal
behaviour, may constitute a criminal act known as misprision of felony or
obstruction of justice.
o Breach of Fiduciary Duty: Individuals in positions of trust or authority, such
as corporate officers, trustees, or guardians, have a legal duty to act in the best
interests of those they represent. Failing to fulfil this duty, such as embezzling
funds or mismanaging assets, can result in criminal charges for breach of
fiduciary duty.
o Health and Safety Violations: Property owners, employers, and professionals
may have legal obligations to maintain safe and healthy environments for
others. Failing to comply with health and safety regulations, such as neglecting
to address hazardous conditions in the workplace or ignoring building code
violations, can lead to criminal liability.

These examples illustrate how criminal acts of omission involve the failure to fulfil
legal duties or obligations, resulting in harm or violation of the law. Like acts of
commission, acts of omission can vary in severity and may lead to different legal
consequences depending on the specific circumstances of the case and the applicable
laws in the jurisdiction.

Case Laws for Omission of Care of Dependants:

There are circumstances in which a certain kind of a legal relationship arises between
the accused and the victim which eventually gives rise to a duty to act. The most
commonly listed instances arising out of duty based upon a relationship are the duty of
the parents to assist their children, husbands to support their wives, and a master-
servant relationship and ship captains to aid their passengers and crew.

In R v Gibbins and Proctor, (1919) 13 Cr App R 134 case, where the defendants,
Gibbins and Proctor were in a relationship. Gibbins was the father of a child named
Nellie from a previous marriage. The defendants lived together, but Nellie was
deliberately starved to death while in their care. The evidence presented during the
trial suggested that Gibbins and Proctor willfully neglected to provide Nellie with
food, leading to her death. The main legal issue in the case was whether the
defendants owed a duty of care to Nellie and whether their failure to fulfill this duty
amounted to murder. The defendants were found guilty of murder. The court held that
Gibbins, as Nellie’s father, had a legal duty to provide her with the necessities of life,
including food. Proctor, as an adult living in the same household, also had a duty of
care towards Nellie. Their deliberate failure to provide her with food, resulting in her
death, constituted murder. The case reaffirmed the principle that individuals have a
common law duty of care towards dependent children under their care. Failure to
fulfill this duty, particularly when it results in death, can lead to criminal liability for
murder.

In R v Instan, (1893) 1 QB 450 case, the defendant, Emily Instan, was convicted of
the manslaughter of her aunt, Martha, by failing to provide her with the necessaries of
life. Emily had lived with Martha, who was infirm and unable to care for herself. Over
a period of several weeks, Martha became increasingly ill and bedridden. During this
time, Emily failed to provide Martha with food or medical attention, resulting in her
death. The court held that Emily had a duty of care towards Martha, given their
familial relationship and the fact that Martha was unable to care for herself. By
neglecting to provide Martha with the necessaries of life, Emily breached this duty of
care and was therefore guilty of manslaughter. This case established the principle that
individuals can be criminally liable for manslaughter if they have a duty of care
towards another person and fail to fulfill that duty, leading to the other person’s death.
It underscores the importance of recognizing and upholding duties of care, particularly
in relationships where one person is dependent on another for their well-being.

In R v Stone and Dobinson [1977] 1 QB 354 case, where the defendants in this case
Gwendolyn Dobinson and James Stone were couple. James Stone’s sister, Fanny, was
elderly, mentally ill, and living in squalid conditions. Gwendolyn Dobinson and James
Stone took Fanny into their home to care for her, but they were ill-equipped to handle
her deteriorating health and mental state. Despite Fanny’s declining condition, they
failed to seek medical help or provide adequate care. The main legal issue in the case
was whether the defendants owed a duty of care to Fanny and whether their failure to
provide necessary care amounted to gross negligence, leading to her death. The court
found both defendants guilty of manslaughter by gross negligence. The judge
emphasized that the defendants had voluntarily undertaken the responsibility of caring
for Fanny and therefore owed her a duty of care. By neglecting to seek medical
assistance or provide adequate care, they breached this duty, leading to Fanny’s death.
The case reaffirmed the principle that individuals who voluntarily assume
responsibility for vulnerable persons owe them a duty of care. Failure to fulfill this
duty, particularly when it results in death or serious harm, can lead to criminal liability
for manslaughter by gross negligence.

In Om Parkash v. The State of Punjab, AIR 1961 SC 1782 case, where Bimla Devi,
was married to the appellant. Their relations got strained and she went to her brother’s
place and stayed there for about a year, when she returned to her husband’s place at
the assurance of the appellant’s maternal uncle that she would not be maltreated in
future. She was, however, ill-treated and her health deteriorated due to alleged
maltreatment and deliberate undernourishment. She was deliberately starved and was
not allowed to leave the house. She was denied food for days together. One day, she
happened to find her room unlocked. Availing of the opportunity, went out of the
house and managed to reach the Civil Hospital, Ludhiana. Brother of Bimla Devi after
learning all facts, sent information to the Police Station.

The appellant (husband of Bimla Devi) was prosecuted for the offence of attempting
to murder Bimla Devi under S. 307 of the Indian Penal Code. The trial Court acquitted
him but, on appeal, the High Court came to a finding, on the evidence, that the object
of the appellant was to confine Bimla Devi and deprive her of regular food in
pursuance of a scheme of regular starvation in order to accelerate her end, and
convicted him under S. 307 Of the Indian Penal Code. Hence appeal was made to the
Supreme Court by Special Leave petition.

On behalf of the appellant it was contended, inter alia, that whereas under S. 511 of
the Code for an Act to amount to the offence of attempting to commit an offence it
need not be the last act and can be the first act towards the commission of the offence,
under S. 307 it is the last act which, if effective to cause death, would constitute the
offence of an attempt to commit murder, and that even if Bimla Devi had been
deprived of food for a certain period, the act of so depriving her did not come under s.
307 as that act could not, by itself have caused her death, it being necessary for the
period of starvation to continue for a longer period to cause death.

The Court held that a person commits an offence under s. 307 Of the Indian Penal
Code when he has an intention to commit murder and in pursuance of that intention
does an act towards its commission irrespective of the fact whether that act is the
penultimate act or not.

Case Laws For Statutory Omissions:

There are instances where a particular statute or a piece of legislation imposes a duty
to assist certain categories of persons. It is usually stated that the failure to act in a
prescribed manner is considered a crime or an offence. For instance, in the Indian
Penal Code,1860 the public servant has to prevent any kind of an offence that disturbs
public peace and security.

In R V Dytham, [1979] QB 722 (Court of Appeal) case, where the case involved a
police officer named Dytham who failed to intervene in an assault outside a nightclub.
During the incident, a man named Bedder was violently assaulted by other
individuals. Despite being present at the scene, Dytham did not take any action to stop
the assault or to assist the victim. Bedder ultimately died as a result of the injuries
sustained during the assault. The main legal issue in the case was whether Dytham
could be held criminally liable for failing to intervene and prevent the assault or
provide assistance to the victim. The court found Dytham guilty of misconduct in a
public office. The judge emphasized that police officers have a duty to uphold the law
and protect members of the public. Dytham’s failure to intervene and his neglect of
duty constituted misconduct in his role as a police constable. The case established the
principle that police officers have a duty to intervene and take reasonable steps to
prevent crimes or breaches of the peace when they occur in their presence. Failure to
fulfill this duty can result in criminal liability, particularly in cases involving serious
harm or loss of life.

In Airedale NHS Trust V Bland [1993] AC 789 (House of Lords) case, Anthony
Bland was a victim of the Hillsborough disaster in 1989 and suffered severe brain
damage that left him in a persistent vegetative state (PVS). He was kept alive with the
help of medical treatment, including artificial feeding and hydration (Support System).
The medical staff, his family, and the hospital authority all agreed that there was no
prospect of recovery and sought a legal declaration to discontinue treatment. The main
legal issue in the case was whether it was lawful to withdraw life-sustaining treatment,
namely artificial feeding and hydration, from Anthony Bland, who was in a persistent
vegetative state, where there was no prospect of recovery. The House of Lords ruled
that it was lawful to discontinue life-sustaining treatment in the case of Anthony
Bland. The court held that there was a distinction between withholding treatment (i.e.,
not starting treatment in the first place) and withdrawing treatment (i.e., stopping
treatment that was already being administered). In cases where the patient is in a
persistent vegetative state with no prospect of recovery, it may be in the patient’s best
interests to withdraw life-sustaining treatment, provided certain legal and ethical
criteria are met. Although the court recognized the intention was to cause Bland’s
death, the withdrawal of treatment was properly characterized as an omission. If there
is a duty for the hospital to act, the hospital would be criminally liable for the
omission. However, there is no duty for a hospital to treat a patient if it is not in the
best interest of the patient. Since there was no prospect of the treatment improving his
condition the treatment was futile and there was no interest for Tony Bland in
continuing the process of artificially feeding him upon which the prolongation of his
life depends. The case established the principle that in certain circumstances, it may
be lawful to withdraw life-sustaining treatment from patients in a persistent vegetative
state, where there is no prospect of recovery and continued treatment would only
prolong suffering.

Case Laws for Omission by Landlord:

The landowner must protect those who come upon his land as a tenant or the
landholder. He has the responsibility to protect the trespassers, licenses, residents,
investors and occupants.

In Rowland v. Christian, 69 Cal. 2d 108 case, where the plaintiff was a social guest
in Defendant’s apartment. Plaintiff asked to use the bathroom and was injured when a
cracked handle of the cold-water faucet on the basin broke and severed tendons and
nerves on his right hand. Defendant had known for two weeks that the handle was
cracked, and had complained to the manager. However, she did not warn Plaintiff. A
summary judgment was given to Defendant. Plaintiff appealed. The issue in the case
was whether the ordinary principles of negligence be used to determine the liability of
a landowner to a person coming onto the property. The Court observed that the
Defendant was aware that the faucet handle was defective and dangerous, that the
defect was not obvious, and that Plaintiff was about to come into contact with the
defective condition. Defendant did not warn Plaintiff of the dangerous condition.
From these facts the trier of fact can reasonably conclude that a failure to warn or to
repair the condition constitutes negligence. Hence the previous decision was reversed.

Case Laws for Omission of Contractual Duty:

A duty is imposed upon the person under the contractual obligation to the victim or a
third party. For instance, the doctor and the nurse have a duty to care for their patients.
If there is any kind of a failure to perform any kind of a contractual obligation then it
would form the basis for the omission liability. If the contract is public then the duty is
owed to the members of the general public, who are not even parties to the contract.

In R v Pittwood, (1902) 19 TLR 37 case, where the defendant, George Pittwood, was
employed as a gatekeeper for a railway level crossing. His duty was to close the gates
whenever a train was approaching and to ensure the safety of pedestrians and vehicles
crossing the railway tracks. However, Pittwood failed to close the gates on one
occasion, leading to a fatal accident involving a horse and carriage that was struck by
a train. The key legal issue in the case was whether the defendant owed a duty of care
to the public in the performance of his duties as a gatekeeper. The court held that
Pittwood had breached his duty of care by failing to close the railway gates, which
directly contributed to the fatal accident. The judge emphasized that individuals in
certain positions of responsibility, such as gatekeepers, have a legal obligation to take
reasonable steps to prevent harm to others. By neglecting his duty, Pittwood had
committed gross negligence, resulting in the loss of life. The case established the legal
principle that individuals who undertake specific roles or responsibilities, especially
those involving public safety, owe a duty of care to others. Failure to fulfill this duty
can lead to criminal liability, particularly in cases involving gross negligence or
recklessness.

In Donoghue v Stevenson [1932] A.C. 562 case, where the case involved a woman
named Mrs. Donoghue, who consumed a ginger beer purchased for her by a friend.
The ginger beer was in an opaque bottle, and Mrs. Donoghue only discovered the
decomposed remains of a snail in the bottle after she had consumed some of its
contents. She suffered shock and gastroenteritis as a result. The key legal issue in the
case was whether the manufacturer of the ginger beer owed a duty of care to Mrs.
Donoghue, a consumer who had not directly purchased the product, and whether they
could be held liable for negligence. The House of Lords ruled in favour of Mrs.
Donoghue. They held that the manufacturer, Stevenson, owed a duty of care to
consumers of their products to take reasonable care to prevent harm. Lord Atkin
famously articulated the “neighbour principle,” stating that “you must take reasonable
care to avoid acts or omissions which you can reasonably foresee would be likely to
injure your neighbour.” This laid the foundation for the modern concept of duty of
care in negligence law. The case established the principle that manufacturers owe a
duty of care to consumers to ensure that their products are safe and do not cause harm.
This principle extends beyond contractual relationships and applies to anyone who
could reasonably be affected by the manufacturer’s actions or omissions.

Main points of Atkin’s Neighbour Principle are:

o Neighbours are those persons who are so closely and directly affected by one’s
act that he/she ought reasonably to have them in contemplation as being so
affected when he/she directing his/her mind to the acts or omissions which are
called in question.
o The rule that you are to love your neighbour becomes in law, you must not
injure your neighbour;
o You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour.

In Anns v Merton London Borough Council [1978] AC 728 case, where the case
involved a tenant named Mrs. Anns who suffered injuries when her ceiling collapsed
due to negligent construction work. The construction of the building had been
approved by the Merton London Borough Council, and Mrs. Anns sought to hold the
council liable for the injuries she sustained. The main legal issue in the case was
whether local authorities owed a duty of care to tenants like Mrs. Anns in approving
building plans and ensuring compliance with building regulations. The House of
Lords ruled in favour of Mrs. Anns, establishing a two-stage test for determining
whether a duty of care existed in cases involving negligent misstatements or
omissions. The first stage involved asking whether a relationship of proximity existed
between the defendant (in this case, the local authority) and the plaintiff (Mrs. Anns).
If such proximity existed, the second stage required considering whether there were
any policy reasons why the duty of care should not be recognized. The case
established the two-stage test for determining the existence of a duty of care in
negligence cases. This test was later refined in subsequent cases, particularly in
Murphy v Brentwood District Council (1991), which introduced the concept of
“incrementalism” in the development of the law of negligence.

Case Laws for Omission as Actus Reus:

There are instances where the accused can be held for the liability of omissions where
he has caused some danger. So it would be the duty of the accused to remove the
danger that was caused intentionally or non-intentionally.

In R v. Miller, [1983] 1 All ER 978 (HL) case, where the defendant, Mr. Miller, was
a homeless man who fell asleep on a mattress in a house he was squatting in. He
carelessly left a lighted cigarette on the mattress. Upon waking and seeing that the
mattress he was lying on was on fire he got up, went into the next room and went back
to sleep. When he awoke again, the house was on fire. The main legal issue in the case
was whether the defendant’s reckless conduct constituted the mens rea (guilty mind)
necessary for the offense of arson. The House of Lords upheld Miller’s conviction for
arson. They ruled that his reckless conduct, in leaving a lighted cigarette on the
mattress in a way that created a substantial risk of fire, demonstrated the requisite
mens rea for the offense of arson. The court held that recklessness in this context
meant being aware of the risk and, nonetheless, consciously disregarding it. Diplock,
writing for the court, states that the actus reus can be deemed to have occurred,
because Miller created a situation that would result in harm if he recklessly failed to
prevent the harm. As the appellant created the liability himself it would make no sense
to excuse him of criminal liability. An omission can be treated as actus reus if a
person creates a situation in which harm to a person or property will occur, and he or
she intentionally or recklessly fails to take steps to prevent the harm; if the accused
does not live up to the created duty, then it is a crime by omission. The case
established the principle that recklessness, in the context of criminal liability, involves
consciously taking an unjustified risk. It clarified that a person can be found guilty of
a crime if they act recklessly by knowingly taking actions that create a substantial and
unjustifiable risk, even if they did not intend the specific consequences that occurred.

In Fagan v. Metropolitan Police Commissioner , [1969] 1 QB 439 case, where the

defendant, Fagan, who was sitting in his car when a police officer approached and
asked him to move it. Initially, Fagan began to move the car, but then accidentally
drove onto the officer’s foot. When the officer told Fagan to remove the car from his
foot, Fagan refused to do so for a period of time. As a result, Fagan was charged with
assault and criminal damage. The main legal issue in the case was whether Fagan
could be convicted of assault and criminal damage for his actions of driving onto the
officer’s foot and subsequently refusing to move the car. The court held that Fagan’s
actions constituted both assault and criminal damage. Although the initial act of
driving onto the officer’s foot may have been accidental, Fagan’s refusal to move the
car when asked to do so transformed the act into a deliberate assault. Similarly,
Fagan’s continued presence with the car on the officer’s foot amounted to criminal
damage. The case established the principle that a continuing act can form the actus
reus of an offense even if the mens rea was only present at the beginning of the act. In
other words, if a person commits a criminal act and then continues to act in a way that
causes harm or damage, they can be held liable for the entire course of their conduct.

In R V Speck [1977] 2 ALL ER 859 (Court of Appeal) case, the defendant (D) was
sitting on a chair when an eight-year-old girl put her hand on his penis outside his
trousers for about five minutes. The pressure of the child’s hand caused him to have
an erection. He remained inactive throughout and did nothing to encourage the child,
although he did not remove her hand. The Court held that D was found guilty of gross
indecency. Although this may be seen as an omission by the man (i.e. he omitted to
move her hand), the court held it to be – in effect – an act by the man.
A Series of Acts as a Single Act:

A criminal act can indeed be understood as a combination or series of acts that, when
taken together, constitute a violation of the law. Criminal acts are often defined by
specific statutes or legal codes that outline what behaviours are considered illegal
within a particular jurisdiction. Understanding criminal acts as combinations of series
of acts is important for law enforcement, prosecutors, and courts in determining guilt
or innocence, as well as in determining the appropriate charges and penalties for those
found guilty of committing crimes.

These acts can range from relatively minor offenses such as petty theft or vandalism to
more serious crimes like assault, murder, or fraud. In many cases, a single criminal act
may involve multiple steps or actions that are necessary to complete the offense.

For example, in the case of a bank robbery, the criminal act may involve planning the
robbery, obtaining weapons or other tools, entering the bank, threatening bank
employees or customers, stealing money, and fleeing the scene. Each of these
individual actions may constitute separate criminal offenses, but taken together, they
form the overall crime of bank robbery.

Similarly, in cases of conspiracy or organized crime, a series of coordinated actions by

multiple individuals may be necessary to carry out illegal activities such as drug
trafficking, racketeering, or money laundering.

Section 2(25) of the Bharatiya Nyaya Sanhita, 2023 “omission” denotes as well as a
series of omissions as a single omission.

In Satyendar Kumar Jain v. Directorate of Enforcement on 6 April, 2023 case, the

Supreme Court observed: “Section 3 of the PMLA defines the offence of money
laundering. There are certain key words under Section 3 which can be noted – (i)
directly or indirectly (ii) attempts to indulge; or knowingly assists; or knowingly is a
party; or is actually involved in any process or activity connected (proceeds of crime
including its concealment, possession, acquisition or use and projecting or claiming) it
as untainted property. Thus, if we read the definition minutely, it is necessary that a
person must be directly/indirectly involved and such person should be taken as
involved if he is connected in any manner with the proceeds of crime including its (i)
concealment, (ii) possession, (iii) acquisition (iv) use, (v) projecting and (vi)
claiming”.

In legal contexts, a series of criminal acts can sometimes be treated as a single

criminal act under certain circumstances. This legal concept is often referred to as
“continuous conduct” or “continuous course of conduct.” Here’s how it works:

Unity of Purpose or Design:

Unity of purpose or design refers to the idea that despite multiple individual acts, there
is a cohesive plan or overarching goal guiding the actions. This unity suggests that the
acts are not isolated incidents but are interconnected and part of a broader scheme or
criminal enterprise. For example, in cases involving complex fraud schemes, such as
Ponzi schemes or securities fraud, the various acts committed by the perpetrator may
be viewed as part of a unified effort to deceive investors and unlawfully obtain
money. Despite involving multiple individual acts, the unity of purpose lies in the
overarching goal of defrauding victims through a systematic scheme. The concept of
unity of purpose or design allows prosecutors and courts to recognize the broader
criminal intent behind a series of acts and ensure that perpetrators are held
accountable for the full scope of their criminal behaviour. It enables the aggregation of
charges and imposition of appropriate penalties that reflect the seriousness of the
overall criminal conduct.

The acts must occur in close temporal and spatial proximity to each other. In other
words, they must be closely related in terms of time and location. Temporal and
spatial proximity are key aspects of treating a series of criminal acts as a single
criminal act. Here’s how they factor into the legal analysis:

Temporal Proximity:

This refers to the closeness in time between the individual criminal acts. When
determining whether a series of acts should be treated as a single criminal act, courts
consider whether the acts occurred in quick succession or were part of a continuous
course of conduct. If the acts are temporally close to each other, it suggests a unified
plan or scheme guiding the perpetrator’s behaviour.

An example of temporal proximity in criminal acts can be seen in a series of

burglaries committed by an individual within a short timeframe. Let’s say a
perpetrator breaks into several homes in a neighbourhood over the course of one night.
The burglaries occur within a span of a few hours, with the perpetrator moving from
one house to another in rapid succession. Each burglary involves similar methods of
entry and theft of valuable items such as electronics, jewellery, and cash. The
temporal proximity in this scenario is evident because the burglaries occur within a
concentrated period, such as a single night. This close timeframe suggests a continuity
of criminal activity rather than isolated incidents. It indicates that the perpetrator had a
unified plan or intent to commit multiple burglaries during this specific timeframe.

Due to the temporal proximity of the burglaries, law enforcement agencies may treat
them as part of a single criminal event rather than separate offenses. Prosecutors may
aggregate the charges related to each burglary and present them as a pattern of
criminal behaviour with a unified purpose, potentially leading to more severe penalties
for the perpetrator.
In Paranagouda vs The State Of Karnataka on 19 October, 2023 case the Supreme
Court said: “We are aware that the word “soon” finds place in Section 304-B; but we
would prefer to interpret its use not in terms of days or months or years, but as
necessarily indicating that the demand for dowry should not be stale or an aberration
of the past, but should be the continuing cause for the death under Section 304-B or
the suicide under Section 306 IPC. Once the presence of these concomitants is
established or shown or proved by the prosecution, even by preponderance of
possibility, the initial presumption of innocence is replaced by an assumption of guilt
of the accused, thereupon transferring the heavy burden of proof upon him and
requiring him to produce evidence dislodging his guilt, beyond reasonable doubt.”

In Deena Lal and Ors. V. State of Rajasthan, 1988(1) WLN 6 case, where Smt.
Roop Kanwar was burnt alive (sati) with corpse of her husband Mal Singh. Sumer
Singh, father of deceased Mal Singh, and others took Smt. Roop Kanwar in funeral
procession while it is not the custom that ladies accompany the funeral procession.
She was dressed and was having all ‘Shringar’ and everybody in the village knew
when the funeral procession was passing through the market that Roop Kanwar is to
be made a Sati. The allegations are that the accused petitioners have prepared the
funeral pyre of Mal Singh. The allegations against the father of deceased Sumer Singh
uncle Mangal Singh are that after the funeral pyre had been prepared and dead body of
Mal Singh had been placed on it, they took Smt. Roop Kanwar and made her sit in the
funeral pyre and put the head of deceased Mal Singh in her lap. When as a result of
some movement of Roop Kanwar, which allegedly is said to have been to avoid
herself being burnt alive, the pyre had been disturbed, they re-set the pyre to resist her
movement. The Rajasthan High Court held that the series of acts prima facie answer a
charge of abetment of murder.

Spatial Proximity:

This refers to the closeness in location between the individual criminal acts. When
assessing whether a series of acts should be considered a single criminal act, courts
examine whether the acts occurred in the same or nearby locations. Spatial proximity
can indicate that the acts were part of a coordinated effort or were committed within
the same criminal context.

An example of spatial proximity in criminal acts can be illustrated by a series of

armed robberies targeting businesses located within the same vicinity. Let’s consider a
scenario where a group of individuals plans and executes a string of armed robberies
targeting convenience stores along a specific street in a city. Over the course of a
week, the perpetrators commit robberies at several different stores located within close
proximity to each other. Each robbery involves similar tactics, such as entering the
store with weapons, demanding money from the cashiers, and fleeing the scene with
stolen cash and merchandise. Despite the different targets, the spatial proximity of the
crimes is evident because all the targeted businesses are located within the same area
or neighbourhood. The spatial proximity in this scenario suggests a common plan or
purpose underlying the criminal conduct. It indicates that the perpetrators deliberately
selected businesses within close proximity to each other to facilitate their criminal
activities. The geographic concentration of the robberies further reinforces the notion
that the acts are interconnected and part of a unified course of conduct.

Law enforcement agencies investigating these robberies may recognize the spatial
proximity of the crimes and treat them as part of a single criminal event rather than
isolated incidents. Prosecutors may aggregate the charges related to each robbery and
present them as a pattern of criminal behaviour committed within a specific
geographic area, potentially leading to more severe penalties for the perpetrators.

In Nehal Mahto v. Emperor, AUR 1939 Pat 625 case, where Nehal Mahto was
prosecuted for the murder of Nisi mahatain. Deceased Nisi was seriously assaulted
and due to which she became unconscious. The accused dragged her from place of
assault to railway line and placed on the track when she was unconscious and in
helpless condition to be run over by the next train. He told ‘Duli’ accompanying ‘Nisi’
to run away and not to tell anybody of the incidence and threatened her that if she
revealed the incidence to anybody he would kill her and her son. The Court held that
the series of acts are so closely connected that the intention to cause death can be
ascribed.

By considering both temporal and spatial proximity, courts can evaluate whether the
series of acts constitutes a unified course of conduct, rather than isolated incidents.
This analysis helps ensure that perpetrators are held accountable for the entirety of
their criminal behaviour and can facilitate the aggregation of charges to reflect the
seriousness of the overall criminal conduct.

Interdependence:

Interdependence of acts refers to the idea that each individual act within a series of
criminal acts is connected to and dependent on the others to achieve a common
criminal purpose or goal. In the context of treating a series of criminal acts as a single
criminal act, interdependence is a crucial aspect that helps establish the continuity and
unity of the overall criminal conduct.

For example, let’s imagine a case where an organized crime syndicate engages in a
series of drug trafficking operations. Each individual within the syndicate plays a
specific role in the overall scheme, such as production, transportation, distribution,
and sales of illegal narcotics. These roles are interdependent because the success of
each operation relies on the cooperation and coordination of all involved parties. For
instance, the individuals responsible for producing the drugs depend on others to
transport them to distribution points, while those involved in distribution rely on
suppliers to provide a steady stream of narcotics. Each step in the process is
interconnected, and the failure of one part can disrupt the entire operation. If law
enforcement authorities investigate and prosecute the members of the syndicate, they
may treat the series of drug trafficking activities as a single criminal enterprise rather
than separate offenses. By recognizing the interdependence of the criminal acts,
prosecutors can present evidence demonstrating how each individual act contributes to
the overall criminal purpose of the syndicate.

This approach allows courts to impose more significant penalties on the perpetrators,
reflecting the seriousness of their collective criminal conduct. Moreover, by treating
the series of acts as a single criminal act, law enforcement agencies can better
dismantle organized criminal networks and disrupt their illegal activities

Aggregation of Charges:

Aggregation of charges refers to the legal process of combining multiple related

offenses into a single charge or indictment when they are part of a series of criminal
acts that are treated as a single criminal act. This aspect is important in cases where
prosecutors seek to present a comprehensive picture of the defendant’s criminal
behaviour and ensure that they are held accountable for the full extent of their actions.
The steps in aggregation of charges are as follows:

o Consolidating Related Offenses: Prosecutors may choose to aggregate

charges when the defendant has committed multiple criminal acts that are part
of the same course of conduct or scheme. This typically involves consolidating
charges related to each individual act into a single charge or indictment, rather
than treating them as separate offenses.
o Establishing a Unified Pattern of Criminal Behaviour: Aggregating charges
allows prosecutors to present evidence of the defendant’s entire pattern of
criminal behaviour as part of a single case. By demonstrating the continuity
and interconnectedness of the criminal acts, prosecutors can establish a unified
narrative that underscores the defendant’s culpability and the seriousness of
their conduct.
o Streamlining Legal Proceedings: Aggregating charges helps streamline legal
proceedings by reducing the complexity and duplication of evidence and
testimony. Rather than litigating each individual offense separately, prosecutors
can focus on presenting a cohesive case that encompasses all relevant criminal
acts.
o Enhancing Penalties: Aggregating charges may result in more severe
penalties for the defendant, as they are held accountable for the full scope of
their criminal conduct. By combining multiple offenses into a single charge,
prosecutors can seek maximum penalties that reflect the seriousness of the
defendant’s overall criminal behaviour.
o Ensuring Fairness and Efficiency: Aggregating charges promotes fairness
and efficiency in the legal system by ensuring that defendants are prosecuted
for their criminal conduct in a comprehensive and effective manner. It allows
courts to adjudicate cases more efficiently while still providing defendants with
due process and a fair trial.
Overall, aggregation of charges is a critical aspect of treating a series of criminal acts
as a single criminal act, as it enables prosecutors to present a coherent and unified case
that accurately reflects the defendant’s culpability and ensures that they are held
accountable for their actions.

In Anda And Ors. vs The State Of Rajasthan, AIR 1966 SC 148 case, where the
deceased (Bherun) was assaulted by a number of persons and received numerous
injuries. He died as a result on the same day. Prosecution proved satisfactorily that
deceased and his father were on inimical terms with the appellants and that certain
criminal proceedings were going on between them. When the deceased was on his
way to the fields, caught hold of by appellants and was assaulted. They and the other
accused, dragged deceased inside the house and beat him severely with their sticks.
When the deceased was admitted in the hospital he was bleeding profusely from his
injuries and had many fractures. At the autopsy the lungs were pale and the heart
empty which showed that enormous quantity of blood must have been lost. The
presence and participation of appellants in the assault has been concurrently accepted
by the High Court and the Sessions Judge. There can be no question that the
appellants were actuated by a common intention which must have been the result of a
prior concert, regard being had to the time, and the place and the circumstances of the
visit of deceased.

The analysis of Court was as follows: “In the present case the accused were obviously
present at the spot by previous arrangement. The time and the place and the errand on
which Bherun was engaged clearly show that they intended to waylay and beat
Bherun. This intent was obviously shared and was the result of prior arrangement. The
question is whether they can be brought within any one of the three clauses of Section
300. The injuries were not on a vital part of the body and no weapon was used which
can be described as especially dangerous. Only lathis were used. It cannot, therefore,
be said safely that there was an intention to cause the death of Bherun within the first
clause of Section 300. At the same time, it is obvious that his hands and legs were
smashed and numerous braises and lacerated wounds were caused. The number of
injuries shows that everyone joined in beating him. It it also quite clear that the
assailants aimed at breaking his arms and legs. Looking at the injuries caused to
Bherun in furtherance of the common intention of all it is clear that the injuries
intended to be caused were sufficient to cause his death in the ordinary course of
nature even if it cannot be said that his death was intended. This is sufficient to bring
the case within 3rdly of Section 300.”

Court further said that it is not necessary that there should be an appreciable passage
of time between the formation of the intent and the act for common intention may be
formed at any time. Next one must look for the requisite ingredient that the injuries
which were intended to be caused were sufficient to cause death in the ordinary course
of nature. Next we must see if the accused possessed the knowledge that the injuries
they were intending to cause were sufficient in the ordinary course of nature to cause
death. When these circumstances are found and death is, in fact, caused by injuries
which are intended to be caused and which are, sufficient in the ordinary course of
nature to cause death the resulting offence of each participant is murder.

Judicial Discretion:

Judicial discretion plays a significant role in determining whether a series of criminal

acts should be treated as a single criminal act. Judicial discretion refers to the
authority given to judges to make decisions based on their judgment and interpretation
of the law, within the bounds of legal guidelines and principles. Here’s how judicial
discretion applies to treating a series of criminal acts as a single criminal act:

o Case Evaluation: Judges have the discretion to evaluate the facts and
circumstances of each case individually to determine whether the series of
criminal acts should be considered a single criminal act. They consider factors
such as the nature and severity of the offenses, the defendant’s intent, the level
of interdependence between the acts, and the impact on victims.
o Legal Interpretation: Judges interpret relevant statutes, case law, and legal
principles to determine whether the series of criminal acts meets the criteria for
being treated as a single criminal act. They consider legal concepts such as
temporal and spatial proximity, unity of purpose, and interdependence of the
acts in making their decision.
o Sentencing Considerations: Judicial discretion extends to sentencing
decisions, where judges have the authority to impose appropriate penalties
based on the severity of the offense and the defendant’s culpability. In cases
where a series of criminal acts is treated as a single criminal act, judges may
consider the overall pattern of behaviour in determining the appropriate
sentence.
o Fairness and Equity: Judicial discretion ensures that decisions regarding the
treatment of a series of criminal acts are fair and equitable. Judges weigh the
interests of justice, the rights of the defendant, and the need for public safety in
making their determinations.
o Case Management: Judges use their discretion to manage court proceedings
effectively, including the consolidation of charges, the admission of evidence,
and the conduct of the trial. They may exercise discretion to streamline legal
proceedings and ensure that cases are adjudicated efficiently while upholding
the principles of fairness and due process.

Thus, judicial discretion is a crucial aspect of determining whether a series of criminal

acts should be treated as a single criminal act. Judges play a central role in assessing
the facts and applying the law to make decisions that promote justice and uphold the
integrity of the legal system.

This concept is often applied in cases involving complex criminal schemes, such as
conspiracy, racketeering, or organized crime, where multiple individual acts are part
of a larger criminal enterprise. By treating the series of acts as a single criminal act,
prosecutors can simplify the legal proceedings and ensure that the perpetrator is held
accountable for the full extent of their criminal behaviour.

Provisions Under Bharatiya Nagarik Suraksha Sanhita, 2023:

According to Section 243(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) ,

2023, (Section 220(1) CrPC, 1973) if, in one series of acts so connected together as to
form the same transaction, more offences than one are committed by the same person,
he may be charged with, and tried at one trial for, every such offence.

According to Section 243(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS),

2023, (Section 220(3) CrPC, 1973) if the acts alleged constitute an offence falling
within two or more separate definitions of any law in force for the time being by
which offences are defined or punished, the person accused of them may be charged
with, and tried at one trial for, each of such offences.

According to Section 243(4) of the Bharatiya Nagarik Suraksha Sanhita (BNSS),

2023, (Section 220(4) CrPC, 1973) if several acts, of which one or more than one
would by itself or themselves constitute an offence, constitute when combined a
different offence, the person accused of them may be charged with, and tried at one
trial for the offence constituted by such acts when combined, and for any offence
constituted by any one, or more, of such acts.

In Aftab Ahmad Khan v. The State of Hyderabad, AIR 1954 SC 436 case, the
Court observed that the incidents related in the evidence left no doubt that from the
moment the accused (a Reserve Inspector of Police) started from the Police State, he
committed a series of acts involving killing, injuring people, unlawfully confining
others and extorting money from one of them and therefore the series of acts attributed
to him constituted one transaction in the course of which two offences which were
alleged to be distinct were committed.

Conclusion:

According to Section 2(1) of the Bharatiya Nyaya Sanhita, 2023, an “act” denotes as
well a series of acts as a single act. Criminal acts can be classified as acts of
commission or acts of omission. Acts of commission involve actively engaging in
behaviour that is prohibited by law. Acts of omission involve failing to perform an
action that is legally required. In both cases, whether it’s commission or omission, the
key factor is whether the behaviour or lack thereof violates the law and is punishable
by the state. In most of the cases a criminal act can be understood as a combination or
series of acts that, when taken together, constitute a violation of the law.

In criminal law, an omission refers to a failure to act or a failure to perform a legal

duty. While criminal liability typically arises from positive actions (acts), there are
circumstances where criminal liability can also result from omissions, especially when
there is a legal duty to act. It’s important to note that in cases involving omissions as
criminal acts, the prosecution must establish that the defendant had a legal duty to act
and that their failure to act was a significant contributing factor to the harm or
criminal outcome. Additionally, the law surrounding omissions as criminal acts may
vary depending on jurisdiction and specific circumstances.

General Principles of Criminal Liability

Law and You > Criminal Laws > Bharatiya Nyaya Sanhita, 2023 > General
Principles of Criminal Liability

Criminal liability in India is based on a set of fundamental principles and legal

concepts that define when a person can be held accountable for committing a criminal
offense. These principles are rooted in Indian law and legal traditions. In India, the
principles of criminal liability are primarily governed by Bharatiya Nyaya Sanhita,
2023 (BNS)) and procedural laws such as the Bharatiya Nagarik Suraksha Sanhita,
2023 (BNSS) and the Bharatiya Sakshya Adhiniyam, 2023 (BSA). The concept of
criminal liability revolves around holding an individual legally responsible for
committing an offense. In this article, we shall discuss general principles of criminal
liability.

Cardinal Principle of Criminal Justice:

Presumption of Innocence:

One of the fundamental principles of criminal law is the presumption of innocence. In

India, as in many legal systems, a person accused of a crime is considered innocent
until proven guilty in a court of law. The burden of proving the guilt of the accused
lies with the prosecution. This principle is also known as cardinal principle of criminal
law. This principle is based on the idea that the burden of proof lies with the
prosecution, meaning it is up to the state or accuser to prove the defendant’s guilt
beyond a reasonable doubt. It is enshrined in many legal systems worldwide and is
often recognized in human rights frameworks, such as Article 11 of the Universal
Declaration of Human Rights and similar provisions in national constitutions. Here’s
what the presumption of innocence entails in practice:

o Burden of Proof: The prosecution must present enough evidence to prove the
defendant’s guilt. The defendant does not have to prove their innocence. If the
evidence presented does not satisfy the legal standard (usually “beyond a
reasonable doubt”), the defendant must be acquitted.
 o Fair Trial: The presumption of innocence guarantees the accused the right to a
fair trial, where all evidence is evaluated impartially. Prejudicing the trial by
assuming guilt before the trial begins undermines this fairness.
o Treatment of the Accused: The accused is entitled to be treated as innocent,
meaning they should not face harsh conditions such as pre-trial detention
without just cause or media prejudice that assumes guilt.
o Legal Safeguard: This principle prevents wrongful convictions and ensures
that innocent people are not punished without proper legal proceedings. It
aligns with the principle that it is better for a guilty person to go free than for
an innocent person to be unjustly convicted.

Thus, the presumption of innocence serves as a cornerstone of criminal justice

systems, aiming to protect individuals from wrongful conviction and ensuring that
justice is administered fairly.

General Principles of Criminal Liability:

Criminal liability is typically based on two essential elements: mens rea, which refers
to the guilty mind or criminal intent, and actus reus, which is the guilty act. Both
elements must be present for an individual to be held criminally liable for an offense.

Actus Reus (Guilty Act)

Actus Reus refers to the physical act or conduct or omission that constitutes a criminal
offense. It is one of the key components needed to establish criminal liability, along
with mens rea, which is the mental state or intent of the defendant at the time of
committing the crime. Together, these elements form the basis for criminal liability
under most legal systems.

For a person to be criminally liable, the prosecution must prove that they committed
an act that is prohibited by law (actus reus), and this act must be accompanied by the
requisite mental state (mens rea). In other words, the physical action must be wrongful
and committed with the necessary state of mind (e.g., intentional, reckless, or
negligent).

In many cases, the actus reus must cause a particular result for criminal liability to
attach. For instance, in homicide cases, the defendant’s actions must cause the death
of another person. This often involves proving both factual causation (“but for” the
defendant’s actions, the result would not have occurred) and proximate causation (the
result was a foreseeable consequence of the defendant’s actions). For an act to count
as actus reus, it must generally be voluntary. Actions that are involuntary, such as
reflexive movements or actions taken while unconscious, are not considered actus
reus. The actus reus and mens rea must occur together, meaning the act must be
committed with the intention (or recklessness/negligence, depending on the crime)
necessary to establish criminal liability. If a person acts without the proper mental
state, they may not be criminally liable, even if they perform a prohibited act.

Mens Rea (Guilty Mind)

Mens Rea, which translates to “guilty mind” in Latin, is one of the essential elements
in establishing criminal liability. It refers to the mental state or intention of the
defendant at the time of committing a criminal act (actus reus). To be criminally
liable, the prosecution generally needs to prove not only that the defendant committed
a prohibited act but also that the defendant had the requisite mental state or awareness
of the consequences of their actions.

Elements of Mens Rea:

o Intention: There must be intention. It may be direct or indirect. When a person

intentionally performs an act with the purpose or aim of bringing about a
specific result, it is called direct intent. For example, if a person shoots another
with the intention of causing harm or death, this is direct intent. When a person
may not intend to cause a specific result, but the result is a virtually certain
consequence of their actions, then it is called indirect or oblique intent. For
example, if a person throws a bomb into a crowded area, even if they do not
specifically intend to kill someone, the death of others may be considered an
indirect intent.
o Recklessness: Recklessness occurs when a person is aware of a substantial and
unjustifiable risk that their conduct will cause harm or result in a criminal
outcome but consciously disregards that risk. This is a lower mental state than
intent. For example, if someone drives at high speed through a busy area and
causes an accident, even though they didn’t intend to harm anyone, they might
be acting recklessly.
o Negligence: Negligence is when a person fails to be aware of a substantial and
unjustifiable risk that a result will occur, but a reasonable person would have
been aware of it. It is a lower form of culpability than recklessness. For
instance, if a person fails to maintain their car’s brakes, leading to an accident,
they might be criminally negligent because they failed to take reasonable steps
to prevent the risk.

o Knowledge: Knowledge refers to when a person is aware that their conduct is

likely to result in a particular outcome. For example, knowing that a person is
carrying illegal drugs without intending to commit the illegal act can still
constitute criminal liability if the defendant knowingly facilitates the illegal
action.
o Willful Blindness: Sometimes, a defendant may deliberately avoid knowledge
of a criminal act, but courts may treat this as equivalent to actual knowledge.
For example, if someone avoids learning about the criminal nature of their
 actions to escape liability, they may still be considered to have the required
mens rea.

Importance of Mens Rea in Criminal Liability

o Differentiating Degrees of Criminal Responsibility: Mens rea helps

distinguish between different levels of criminal culpability. For instance, first-
degree murder typically requires a specific intent to kill, whereas manslaughter
(culpable homicide) might involve recklessness or negligence.
o Preventing Punishment for Innocent Acts: The mens rea requirement
ensures that individuals are not punished for actions they did not know were
criminal or did not intend to commit. It protects individuals from liability when
they did not have the required mental state for a crime.
o Justice and Fairness: Mens rea reflects the moral blameworthiness of the
defendant. It helps ensure that individuals are only held criminally liable when
their actions and mental states align with the severity of the crime.

Mens Rea is a fundamental element of criminal law, determining the level of intent or
awareness behind a criminal act. The mental state of the defendant can vary from
intentional conduct (direct or indirect intent) to recklessness, negligence, or even strict
liability. By requiring that the prosecution prove both actus reus (the act) and mens rea
(the mental state), the legal system seeks to ensure that only those who are morally
and legally responsible for their actions are held criminally liable.

Thus according to general principle of criminal liability, for criminal liability to be

established, both actus reus (the prohibited act) and mens rea (the guilty mind) must
be present, with certain exceptions like strict liability crimes where mens rea is not
required. Thus, actus reus is an essential element of criminal liability, as it defines the
physical act or conduct that violates the law. Without actus reus, there can be no
criminal liability, even if there is a corresponding mental state (mens rea) present.

Concurrence of Actus Reus and Mens rea:

The principle of concurrence is a key concept in criminal law that requires both the
actus reus (guilty act) and the mens rea (guilty mind) to occur together in order to
establish criminal liability. In other words, a criminal offense is only committed when
the defendant’s guilty mind (intention, recklessness, or negligence) coincides with the
prohibited conduct or act at the same time. This principle ensures that an individual
cannot be held criminally liable for an offense unless their mental state aligns with the
physical act, meaning they had the required intent, knowledge, or recklessness when
they committed the actus reus.

This principle is based on the Latin maxim ‘actus non facit reum nisi mens sit rea’
meaning an act does not render one guilty unless the thought is also guilty, i.e. there
can be no crime without a guilty mind.
Elements of the Principle of Concurrence

o The actus reus and mens rea must occur simultaneously, meaning that the
defendant’s mental state must exist at the time the act is performed. If the
defendant forms the intent after performing the act, or if they perform an act
without the requisite mental state, concurrence is not present, and they may not
be criminally liable. For example, a person who plans and then commits a theft
with the intent to steal is acting with the required concurrence. However, if the
person steals something impulsively without prior intent, the act and mental
state might not align, depending on the jurisdiction’s legal standards.
o In crimes that require specific intent (e.g., murder), the defendant must have the
intent to commit the crime at the time the prohibited act occurs. If the
defendant commits an act without the required mental state, they may be
charged with a lesser offense, depending on the circumstances. For example, if
someone acts in a way that causes harm, but they didn’t intend to cause that
harm (e.g., reckless driving), they might be guilty of a lesser crime like reckless
manslaughter (culpable homicide) rather than murder.
o In cases where a crime involves a continuous act (e.g., a series of thefts or
ongoing fraud), the principle of concurrence applies throughout the entire
process. The mental state must align with the act at every stage. For example,
in a series of fraudulent transactions, the individual must have the necessary
mental state (e.g., knowledge that their actions are fraudulent) at the time of
each transaction to establish criminal liability.

Importance of the Principle of Concurrence

o The principle prevents individuals from being held criminally liable for actions
that they did not intend or have awareness of. It ensures that individuals are
only penalized for actions where both their conduct and mental state are
criminal in nature.
o By requiring both actus reus and mens rea to occur simultaneously, the
principle of concurrence helps define the level of responsibility the defendant
has for the offense. A person may not be guilty if they acted without the
requisite mental state, even if they committed the act.
o The principle of concurrence helps differentiate between crimes that require
specific intent and those that involve negligence or recklessness. For instance,
murder typically requires an intent to kill (or act with a depraved heart),
whereas manslaughter (culpable homicide) may only require recklessness or a
lesser mental state, reflecting a lower degree of blameworthiness.

In Fowler v. Padget, 101 E.R. 1103 (1798) case, Lord Kenyon stated that the intent
and the act must both concur to constitute a crime. From the judgment we can
conclude that mere negligence or the absence of due care in certain situations might
lead to civil liability but would not automatically result in criminal liability without
the presence of a guilty mind. Criminal liability demands a higher threshold of
culpability, requiring proof that the defendant acted with wrongful intent or was aware
of the illegality of their conduct.

The principle of concurrence ensures that both the physical act (actus reus) and the
mental state (mens rea) of the defendant align to establish criminal liability. This
principle is vital in ensuring fairness and justice in criminal proceedings, as it prevents
individuals from being unjustly punished for acts they did not intend or were unaware
of. In practice, it acts as a safeguard to ensure that the criminal justice system holds
individuals accountable only when their actions and mental states meet the legal
requirements of the offense.

Conclusion:

The general principles of criminal liability aims to ensure that criminal laws are
applied fairly, justly, and proportionately. By requiring both an external act (actus
reus) and a guilty mind (mens rea), the legal system ensures that individuals are only
held accountable for crimes they intentionally or recklessly commit, while protecting
their rights and ensuring fairness.

These principles also help ensure that criminal responsibility is appropriately

assigned, accounting for both individual actions and intent, and recognizing the
possibility of defences or other mitigating factors that may excuse or justify certain
actions. However, exceptions like strict liability provide a way to address regulatory
offenses where public welfare concerns outweigh the need for proving mental state,
helping to maintain public order and safety.

Ultimately, the general principles of criminal liability balance the rights of the accused
with the need to protect society, ensuring that individuals are held accountable for
criminal conduct in a manner that reflects fairness, justice, and proportionality.

Strict Liability and Absolute Liability

Strict liability is a legal concept in tort law that holds a person or entity liable for
certain actions or activities, regardless of fault or intent. Unlike traditional negligence-
based liability, strict liability does not require proof of negligence, recklessness, or
intentional wrongdoing. Instead, the focus is on the inherently dangerous nature of the
activity or product. Strict liability has five exceptions. While absolute liability is a
strict liability without exceptions.

Essential Ingredients of Strict Liability:

The essential ingredients of strict liability are as follows:

 o There should be dangerous thing.
o There should be escape of dangerous thing.
o There should be some damage out of this escape
o There should be a non-natural use of the land or property.

Escape of Dangerous Things:

The “escape of dangerous thing” concept is often associated with the legal doctrine of
strict liability in tort law. It typically refers to situations where a person is held strictly
liable for the harm caused by a dangerous substance or object that escapes from their
control. This principle is closely related to the broader category of strict liability for
abnormally dangerous activities. In cases involving the escape of a dangerous thing,
the key elements are:

o Dangerous thing: There must be a substance or object that is inherently

dangerous or poses a high risk of harm if it escapes. This could include things
like toxic chemicals, hazardous materials, or other potentially harmful
substances. Dangerous things also includes fire, fire arms, fireworks, explosive
materials, poisonous drugs, gas, machinery etc.
o Escape: The dangerous thing must escape from the control of the person
responsible for it. This could involve a spill, leak, explosion, or any other event
that allows the dangerous substance or object to move beyond its intended
confinement.

Common examples of situations where the escape of a dangerous thing might lead to
strict liability include:

o Chemical Spills from Industrial Facilities: If a company is storing or using

hazardous chemicals and there is a spill that causes harm, the company may be
held strictly liable. Example: In Bhopal, thousands of people died due to
licking of Methyl Isocyanide (MIC) gas from Union Carbide Plant.
o Fire: A man is not liable for damaged caused by a domestic fire. Every person
who lights a fire for non-domestic purpose have a heavy responsibility to his
neighbours as regards the lighting, safe-keeping, and spreading of such fire.
o Fire Arms: Loaded fire arms are regarded as highly dangerous things, even if
they have taken apparently sufficient precaution.
o Fireworks and Explosive Materials: Fireworks and explosive materials are
very dangerous and destructive.
o Escape of a Dangerous Animal: If someone is keeping a wild or inherently
dangerous animal, and it escapes and causes harm, the owner may be strictly
liable. Dangerous animals include lion, tiger, crocodile, ferocious dog, etc.
o Gas: All persons dealing with gas are bound to exercise the greatest care for
they are using material difficult to manage, and has dangerous character.
Example: Oleum Gas case (M.C. Mehta v. Union of India).
In T.C. Balakrishnan Menon v. T.R. Subramanian, AIR 1968 Ker 151 case, the
Court held that the use of explosives in an open ground on a festival day was non-
natural use of land. The reason was that under the Explosives Act, for making and
storing explosive substances even on such places and at such occasions, licenses have
to be obtained.

Rylands v. Fletcher (1868) L.R. 3 H.K. 330 (The water Reservoir case):

Strict liability is a legal concept in tort law that holds a person or entity liable for
certain actions or activities, regardless of fault or intent. Fletcher was working in a
coal mine under a lease. On the neighbouring land, Rylands desired to erect a
reservoir for storing water, and for this purpose, he employed a competent
independent contractor whose workmen, while excavating the soil, discovered some
disused shafts and passages communicating with old workings and the mine in the
adjoining land. The shafts and passages had been filled with loose earth and rubbish.
The contractor did not take the trouble to pack these shafts and passages with earth, so
as to bear pressure of water in the reservoir, when it is filled. Shortly after the
construction of the reservoir, whilst it was partly filled with water, the vertical shafts
gave way and burst downwards. The consequence was that the water flooded the old
passages and also the plaintiff’s mine, so that the mine could not be worked. The
plaintiff sued for damages. No negligence on the part of the defendant was proved.

The only question was whether the defendant would be liable for the negligence of the
independent contractor who was admittedly a competent engineer. The Court held that
the question of negligence was quite immaterial. The defendant, in bringing water into
the reservoir, was bound to keep it there at his peril. Lord Cairns, delivering the
judgment in the House of Lords in 1868, held that the defendants were strictly liable
for the damage caused by the escape of water, even though they were not negligent.
The key elements established in the case are:

The strict liability under the rule in Rylands v. Fletcher is based on following
conditions:

o Accumulation of something on land: There must be an accumulation of

something on the defendant’s land, whether it be water, chemicals, or any other
substance.
 o Non-natural use of the land: The use of the land must be non-natural and
involve a special risk to others. In the case, the construction of a reservoir for
industrial purposes was considered a non-natural use.
o Escape: There must be an escape of the dangerous thing from the defendant’s
land, and this escape must cause harm to the plaintiff.

The Rylands v. Fletcher doctrine has been influential in shaping the law of strict
liability for hazardous activities or conditions in various jurisdictions.

Scienter Rule:

The word “scienter” is Latin for “knowingly” or “having knowledge.” The scienter
rule holds an owner liable for harm caused by their domestic animals if the owner
knew or had reason to know of the animal’s dangerous propensities. In other words, if
an owner is aware that their animal has a tendency to act in a way that could cause
harm, they may be held strictly liable for any harm caused by the animal, even if they
were not negligent in controlling the animal at the time of the incident.

The scienter rule is often applied in cases involving injuries caused by dogs or other
domestic animals. For example, if an owner is aware that their dog has a history of
aggressive behaviour and the dog bites someone, the owner may be held strictly liable
for the injuries under the scienter rule.

Exceptions to Rule of Rylands v. Fletcher:

While Rylands v. Fletcher established the principle of strict liability for harm caused
by the escape of a dangerous thing from one’s land, there are certain exceptions and
limitations to this rule. Some common exceptions and limitations to the Rylands v.
Fletcher rule include:

Act of God (Vis Major):

If the escape of the dangerous thing is the result of an unforeseeable and

uncontrollable natural event, often referred to as an “act of God,” the defendant may
not be held strictly liable. The key is that the escape must be due to circumstances
beyond human control. These events include earthquake, cyclone, tsunami, etc.

In Nicholas v. Marsland, (1875) L.R. ex. 225 case, the defendant, Marsland,
constructed a dam on his land to create ornamental lakes. The dams were properly
constructed and safe for all ordinary occasion. The reservoir was designed to hold a
vast amount of water. However, during an unusually heavy rainfall and storm, the
embankment of the reservoir collapsed, leading to the escape of a large volume of
water. The rushing water caused considerable damage downstream, including the
destruction of a bridge owned by the plaintiff, Nicholas. The court held that Marsland
was not strictly liable for the damages caused by the escape of water because,
Marsland had taken reasonable care in the construction and maintenance of the
reservoir, and the collapse was an unforeseeable result of an extraordinary natural
event (the heavy rainfall).

In Vohra Sadikbhai Rajakbhai v. State of Gujarat, (2016) 12 SCC 1 case, the

Supreme Court of India relied upon a similar definition of act of God. It stated that:
“An act of God is that which is a direct, violent, sudden and irresistible act of nature
as could not, by any amount of ability, have been foreseen, or if foreseen, could not by
any amount of human care and skill have been resisted. Generally, those acts which
are occasioned by the elementary forces of nature, unconnected with the agency of
man or other cause will come under the category of act of God.”

Act of a Stranger:

If a third party or a stranger’s deliberate act causes the escape of the dangerous thing,
the person who originally brought the substance onto the land may not be held strictly
liable. If, however the act of the stranger is or can be foreseen by the defendant and
the damage can be prevented, the defendant must, by due care, prevent the damage.
Failure on his part to avoid such damage will make him liable.

In Box v. Jubb, (1879) 4 Ex. D. 76 case, the overflow from the defendant’s reservoir
was caused by the blocking of a drain by strangers, the defendant was held not liable
for that.

In M.P. Electricity Board v. Shail Kumar, AIR 2002 SC 551 case, the rule of strict
liability was applied and the defect of the dangerous thing being an ‘act of the
stranger’ was not allowed because the same could have been foreseen. Thus, the
authorities manning such dangerous commodities have an extra duty of care to prevent
damage.

Default of Plaintiff:

If the harm is a result of the plaintiff’s own default or misconduct, the defendant may
not be held strictly liable. The plaintiff’s actions must be a significant contributing
factor to the harm suffered.

In Ponting v. Noakes, (1849) 2 Q.B. 281 case, the plaintiffs horse intruded into the
defendant’s land and died after having nibbled the leaves of a poisonous tree there.
The defendant was held not liable because damage would not have occurred but for
the horse’s own intrusion to the defendant’s land.

Statutory Authority:
If the defendant’s use of the land is authorized by law or a valid statute, it may provide
a defence against strict liability. If the activity is conducted in compliance with legal
requirements, the defendant may argue that they should not be held strictly liable.

In Green v. Chelsea Waterworks Co., (1894) 70 L.T. 547 case, the defendants
operated a waterworks company and were engaged in supplying water to the
inhabitants of Chelsea. The company had constructed a reservoir and employed
independent contractors to construct a new filter bed. The contractors, in the course of
their work, dug a well that eventually reached a layer of sand, causing water to flow
into it. The water, which contained impurities, flowed into the plaintiff’s well and
contaminated the plaintiff’s water supply. The Court held that bursting of such water
supplies was without any defendant’s fault and statutory protection would be granted.

Consent of the Plaintiff:

If the plaintiff has given their consent to the defendant’s use of the land or to the
activity causing the harm, it may serve as a defence against strict liability. However,
the consent must be informed and voluntary.

In Carstairs v. Taylor, (1871) L.R. 6 Ex. 217 case, the plaintiff rented the ground
floor of the building owned by the defendant. The upper floor was occupied by the
defendant himself. On the defendant’s floor, large quantity of water was stored. The
water seeped down and destroyed the goods stored by the plaintiff. However, since the
water was stored for the benefit of both the defendant and the plaintiff, the defendant
was not held liable under the rule of strict liability.

Rule of Absolute Liability:

In M.C. Mehta v. UOI, AIR 1987 SC 1086 case, the Supreme Court evolved the rule
of ‘absolute liability’ as part of Indian law in preference to the rule of strict liability. It
expressly declared that the new rule was not subject to any of the exceptions under
Rylands rule. For instance when the escape of the substance causing damage is due to
the act of a stranger, say due to sabotage, there is no liability under the Rylands rule.
The court observed: “This rule (Ryland v Fletcher) evolved in the 19th century at a
time when all these developments of science and technology had not taken place….we
have to evolve new principles and lay down new norms which would adequately deal
with new problems which arise in a highly industrialized economy.”

In Union Carbide Corporation v. Union of India, (1991) 4 SCC 548 case, the
doctrine of absolute liability was upheld in the infamous Bhopal Gas Tragedy which
took place between the intervening night of 2nd and 3rd December, 1984. Leakage of
methyl-iso-cyanide (MIC) poisonous gas from the Union Carbide Company in
Bhopal, Madhya Pradesh led to a major disaster and over three thousand people lost
their lives. There was heavy loss to property, flora and fauna. The effects were so
grave that children in those areas are born with deformities even today. A case was
filed in the American New York District Court as the Union Carbide Company in
Bhopal was a branch of the U.S. based Union Carbide Company. The case was
dismissed there owing to no jurisdiction. The Government of India enacted the Bhopal
Gas Disaster (Processing of Claims) Act, 1985 and sued the company for damages on
behalf of the victims. The Court applying the principle of ‘Absolute Liability’ held the
company liable and ordered it to pay compensation to the victims.

In Gittam Ram v. State of Jammu and Kashmir, AIR 2013 J&K 83 case, the High
Court of Jammu and Kashmir discussed the liability of an enterprise generating,
transmitting, supplying or using electricity of high voltage. It was held that such a
person or company has to endure that proper precautions are taken to ensure that such
electric current will not escape. The basis of such liability is a foreseeable risk and the
inherent danger of the very activity.

Thus the exceptions discussed above are not applicable in India.

Difference between Strict Liability And Absolute Liability

Strict Liability Absolute Liability

The principle of strict liability makes the defendant strictly liable The principle of absolute liability m
where he brings something on his land which constitutes as non- defendant absolutely liable where he c
natural use of land and when that thing escapes the land, it causes an activity that is hazardous and in
injury to the plaintiff. dangerous.

The principle of absolute liability

The principle of strict liability was laid down in the case
down in the case of MC Mehta v. U
of Rylands v. Fletcher
India

It is subject to certain exceptions like vis major, act of a third

It has no exceptions.
party, volenti non fit injuria etc.

Conclusion:

Absolute and strict liability are two related but distinct concepts within the same body
of law, the Law of Torts. Strict Liability is narrower than an absolute liability. Both
systems of law are founded on no-fault liability. Still, strict liability has several
exceptions, and if a case falls under one of those exceptions, the defendant is not held
accountable for the act. Absolute liability is a situation in which the defendant must
pay damages and is not permitted to raise defences. In India the doctrine of absolute
liability is used.

Group or Joint Criminal Liability

On
February 17, 2025
By
Adv Hemant More
In
Bharatiya Nyaya Sanhita

Law and You > Criminal Laws > Bharatiya Nyaya Sanhita, 2023 > Group or
Joint Criminal Liability

The principle of criminal liability is that the person who commits an offence is
responsible for that and he can only be held guilty for that offence. Normally criminal
liability is an individual liability because it requires proof of both mens rea and actus
reus. But crime need not be done individually. Many times criminal acts of serious
nature are done in a group. When several persons are involved in the prosecution of a
criminal act, it becomes difficult to distinguish the role of different participants if the
result of all actions combined is the intended criminal consequence. Sections 3(5) to
3(9), 190, 61(1), 148, 310(3) and 331(8) of the Bharatiya Nyaya Sanhita, 2023 (BNS)
deals with joint criminal liability. Sections 3(5) to 3(8) deal with the provisions which
fix criminal liability on the basis of common intention and common object. In this
article, we shall discuss the concept of group or joint criminal liability

Offence committed by groups of persons are of frequent occurrence and courts are
called upon to determine the liability of each member for the crime committed by the
entire group or by any member or members thereof.

Group liability is a term used for people who have committed an act in pursuance of a
common intention, where each of the persons is liable in the same manner, as this act
was done by them alone. The Indian Penal Code contains a few provisions laying
down principles of joint and constructive liability in this behalf. Amongst these
Sections 3(5) BNS and 190 BNS present constantly recurring problems in the matter
of interpretation of the language used in those sections.

Section 3(5) BNS:

Acts done by several persons in furtherance of common intention:

When a criminal act is done by several persons in furtherance of the common

intention of all, each of such persons is liable for that act in the same manner as if it
were done by him alone.

Ingredients of Section 3(5) BNS:

o Criminal act done by several persons

o The act is done in furtherance to common intention
o The nature of participation is irrelevant.

Common Intention:

Intention means guilty mind, ‘purpose of desire to bring about a contemplated result
or foresight that certain consequences will follow from the conduct of the person.’
When two or more persons share this guilty desire it is common intention. The term
‘common intention’ means a prior concert, i.e. a meeting of minds and involvement of
all group members in the execution of that plan. The acts performed by each
participant may vary in personality but must be carried out with the same common
intention.

If A, B and C make a plan to kill D and in the execution of the crime, A buys a poison,
B mixes it in food and C gives it to D as a result of which D dies, it would be unjust to
hold only C liable for murder. To deal with such cases, criminal law has provisions for
joint liability or group liability or vicarious liability. As a result of this law, a person
becomes vicariously liable for the result of the action of the group of which he is a
member.

Characteristics of Common Intention:

o Common intention is different from same or similar intention

o It should be Prior or Antecedent to the Occurrence
o It may develop during the course of the occurrence and could develop on the
spot
o It is different from same or similar Intention

Common intention denotes the meeting of mind of the persons accused of an offence.
This requires prior concert. It can also develop on the spot after the offenders have
gathered there.

In Surendra Chauhan v. State of Madhya Pradesh, AIR 2000 SC 1436 case, a

doctor was neither competent to terminate pregnancy nor had the approval of the
government. His clinic lacked the basic instruments necessary for the purpose. The
victim was taken to that clinic by a person for termination of the pregnancy of the
victim and she died in the process. The doctor and the person who took her to the
clinic were held liable for the death of the victim as the crime was committed in
furtherance of the common intention. In this case, the two accused knew that the clinic
did not have the facility for termination of pregnancy and the doctor did not have the
competence to complete the procedure without hazard. Still, they concerted and
carried on the termination of the pregnancy of the victim. Hence there was the
common intention of the two accused to undertake a procedure illegally and in
furtherance of their common intention, they subjected the victim to the abortion
process as a result of which the victim dies. Hence there was a common intention, an
act was done in furtherance of the common intention and each of the two accused
participated in the criminal act. One brought the victim to the clinic and the other
applied the procedure on the victim.

In Kripal Singh v. State of Uttar Pradesh, AIR 1954 SC 706 case, there was a
dispute over land between the accused and the victim. One morning the three accused
tried to stop labourers from working in the field which the labourers tried to resist.
When the victim intervened two accused hit him with sharp weapons. The third
accused stabbed the victim with a spear blade which struck the victim in the jaw. The
victim died on the spot. The court held that the three accused were liable under s. 326
read with s. 34. However, the third accused alone was liable for murder. The common
intention which developed on the spot was to attack the victim with sharp weapons.
The other two accused did not intend to murder the victim.

In Barendra Kumar Ghose v King-Emperor, AIR 1924 Cal 545 case, four men
attacked the office of the postmaster while he was counting money. Three of them
entered the office and demanded the money. Thereafter they opened fire at the
postmaster and fled with the money. Appellant who was one of the party was standing
outside the office all this time. He was visible from inside and could see what was
happening inside. The defence of the appellant was that he was frightened and he did
not participate in the crime and was merely standing outside the office. Lord Summer
observed: “the leading feature of s. 34 of the Indian Penal Code is ‘participation’ in
action. To establish joint responsibility for an offence, it must of course be established
that a criminal act was done by several persons; the participation must be in doing the
act, not merely in its planning. A common intention–a meeting of minds–to commit an
offence and participation in the commission of the offence in furtherance of that
common intention invites the application of s. 34 IPC (S. 3(5) BNS). But this
participation need not in all cases be by physical presence. In offences involving
physical violence, normally the presence at the scene of the offence of the offenders
sought to be rendered liable on the principle of joint liability may be necessary, but
such is not the case in respect of other offences where the offence consists of diverse
acts which may be done at different times and places.” The Court held that his
participation was sufficient to make him vicariously liable for the actions of the other
participants in the group. Whether the accused had participated or not has to be
decided on the basis of facts surrounding the case.
In Jaikrishnadas Manohardas Desai v. The State of Bombay, AIR 1960 SC
833 case, J M Desai and his co-appellant were the Managing Director and a Director
cum technical Expert respectively of a cloth dyeing company Parikh Dyeing and
Printing Mills Ltd. The company entered into a contract with the Textile
Commissioner undertaking to dye a large quantity of cloth which was supplied to the
company for that purpose. In pursuance of the contract certain quantity of cloth was
dyed and delivered to the Textile Commissioner by the company but it failed to dye
and deliver the balance of cloth which remained in its possession and was not returned
to the Textile Commissioner in spite of repeated demands. Ultimately the two
appellants were prosecuted for criminal breach of trust under S. 409 IPC (S. 316(5)
BNS) read with S. 34 of the Indian Penal Code (S. 3(5) BNS) and were convicted for
the same in a trial by jury. In appeal, the High Court found that the two appellants
were liable to account for the cloth over which they had dominion, and having failed
to do so each of them was guilty of the offence of criminal breach of trust. In this case,
the Court observed: “The essence of liability under S. 34 of the Indian Penal Code
(S. 3(5) BNS) is the existence of a common intention animating the offenders and the
participation in a criminal act in furtherance of the common intention. The physical
presence at the scene of the offence of the offender sought to be rendered liable
under S. 34 IPC (S. 3(5) BNS) is not, on the words of the statute, one of the
conditions of its applicability in every case.”

Difference Between Common Intention and Same Intention:

Common intention is different from same or similar intention. ‘To constitute common
intention it is necessary that the intention of each person be known to all the others
and be shared by them.’

In Mahboob Shah v. Emperor, AIR 1945 PC 118 case, Allah Dad and few others
were trying to collect reeds from the bank of the Indus river. They were warned by
Mahboob Shah against collecting reed from lands belonging to him. Ignoring the
warning the deceased collected reeds but was stopped by Qasim Shah, nephew of
Mahboob Shah while he was placing them on the boat. Qasim Shah was hit by the
victim by a bamboo pole. On hearing Qasim Shah’s cries for help, Mahboob Shah and
his son Wali Shah came armed with their guns. Wali Shah fired at the victim who died
instantly and Mahboob Shah fired at another person causing him some injuries.
Lahore High Court sentenced Mahboob Shah with the murder of the victim under s.
302 IPC (S. 103(1) BNS) read with s. 34 IPC (S. 3(5) BNS). But on appeal Privy
Council set aside the conviction for murder for Mahboob Shah stating that common
intention required pre-arranged plan and it has to be proved that the criminal act was
done in concert pursuant to a prearranged plan. Here the two accused might be having
the same or similar intention but not the common intention and since the firing of
Mahboob Shah did not kill anyone he was not held liable for murder by the
application of s. 34 IPC (S. 3(5) BNS).

Section 3(6) BNS:

When such an act is criminal by reason of its being done with a criminal
knowledge or intention:

Whenever an act, which is criminal only by reason of its being done with a criminal
knowledge or intention, is done by several persons, each of such persons who joins in
the act with such knowledge or intention is liable for the act in the same manner as if
the act were done by him alone with that knowledge or intention.

Section 3(7) BNS:

Effect caused partly by act and partly by omission:

Wherever the causing of a certain effect, or an attempt to cause that effect, by an act
or by an omission, is an offence, it is to be understood that the causing of that effect
partly by an act and partly by an omission is the same offence. Illustration A
intentionally causes Z’s death, partly by illegally omitting to give Z food, and partly
by beating Z. A has committed murder.

Section 3(8) BNS:

Co-operation by doing one of several acts constituting an offence

When an offence is committed by means of several acts, whoever intentionally co-

operates in the commission of that offence by doing any one of those acts, either
singly or jointly with any other person, commits that offence.

Illustrations

A and B agree to murder Z by severally and at different times giving him small doses
of poison. A and B administer the poison according to the agreement with intent to
murder Z. Z dies from the effects of the several doses of poison so administered to
him. Here A and B intentionally co-operate in the commission of murder and as each
of them does an act by which the death is caused, they are both guilty of the offence
though their acts are separate.

Section 3(9) BNS:

Persons concerned in criminal act may be guilty of different offences:

Where several persons are engaged or concerned in the commission of a criminal act,
they may be guilty of different offences by means of that act.

Illustration:
A attacks Z under such circumstances of grave provocation that his killing of Z would
be only culpable homicide not amounting to murder. B, having ill-will towards Z and
intending to kill him, and not having been subject to the provocation, assists A in
killing Z. Here, though A and B are both engaged in causing Z’s death, B is guilty of
murder, and A is guilty only of culpable homicide.

Section 190 BNS:

Every member of unlawful assembly guilty of offence committed in prosecution of

common object:If an offence is committed by any member of an unlawful assembly in
prosecution of the common object of that assembly, or such as the members of that
assembly knew to be likely to be committed in prosecution of that object, every
person who, at the time of the committing of that offence, is a member of the same
assembly, is guilty of that offence.

Acts under Section 3(5) BNS must be carried out with a single purpose, but criminal
acts under Section 190 BNS must be carried out with a common object. Section 3(5)
BNS requires active engagement, no matter how minor or inconsequential but Section
190 BNS, however, simply being a member of an unlawful assembly is enough to
bring criminal charges.

in Amar Singh v. State of Haryana, AIR 1973 SC 2221 case, where the conviction
for an offence under Section 302 (S. 103(1) BNS) read with Section 34 IPC (S. 3(5)
BNS), despite the fact that the accused was charged under Section 302 IPOC (S.
103(1) BNS) read with Section 149 IPC (S. 190 BNS), was not illegal because the
facts proved and evidence adduced would have been the same if the accused had been
charged under Section 302 (S. 103(1) BNS) read with Section 34 of the Indian Penal
Code, 1860 (S. 3(5) BNS).

In Barendra Kumar Ghosh v. Emperor, (1925) 27 BOMLR 148 case, the

distinction between Sections 149 IPC (S. 90 BNS) and 34 IPC (S. 3(5) BNS), was
pointed out. It was observed that Section 149 IPC (S. 190 BNS) postulated an
assembly of five or more persons having a common object, namely, one of those
objects named in Section 141 IPC (S. 189(1) BNS), and then the doing of acts by
members of the assembly in prosecution of that object or such as the members knew
were likely to be committed in prosecution of that object. It was pointed out that there
was a difference between common object and common intention; though the object
might be common, the intention of the several members might differ. The leading
feature of Section 34 (S. 3(5) BNS) is the element of participation in action, whereas
membership of the assembly at the time of the committing of the offence is the
important element in Section 149 IPC (S. 190 BNS). The two sections have a certain
resemblance and may to a certain extent overlap, but it cannot be said that both have
the same meaning.
In Nanak Chand v. State of Punjab, AIR 1955 SC 274 case, where the prosecution
had argued that s. 149 does not create any offence and merely provides for
constructive guilt similar to s. 34 of the IPC. Negating the contention of the
prosecution, the Supreme Court stated that section 34 is merely explanatory and does
not create any specific offence but same is not true about s. 149. The Court observed
that the principal element in section 34 of the Indian Penal Code is the common
intention to commit a crime. In furtherance of the common intention several acts may
be done by several persons resulting in the commission of that crime. In such a
situation section 34 provides that each one of them would be liable for that crime in
the same manner as if all the acts resulting in that crime had been done by him alone.’
There is no question of common intention in section 149 of the Indian Penal Code. An
offence may be committed by a member of an unlawful assembly and the other
members will be liable for that offence although there was no common intention
between that person and other members of the unlawful assembly to commit that
offence provided the conditions laid down in the section are fulfilled. Thus if the
offence committed by that person is in prosecution of the common object of the
unlawful assembly or such as the members of that assembly knew to be likely to be
committed in prosecution of the common object, every member of the unlawful
assembly would be guilty of that offence, although there may have been no common
intention and no participation by the other members in the actual commission of that
offence.

In Chikkarange Gowda And Ors. vs State Of Mysore, AIR 1956 SC 731 case,
where a mob of about 100 persons rushed towards a house at noon where two brothers
Putte Gowda and Nanje Gowda were found. The mob sprinkled kerosene oil on the
roof and started burning the house. When the inmates of the house came out the two
brothers were brutally assaulted and this resulted in their death. Four appellants were
members of the mob. Appellant 1 had hit Putte Gowda on Abdomen with a cutting
instrument, appellant 4 hit Putte Gowda on the knee with a chopper. Second appellant
hit Nanje Gowda with a spear and third appellant hit Nanje Gowda on the head with
axe. The appellants along with several others were charged under section 148, 302 and
302 with ss. 34 and 149 on the ground that the common object of the assembly was to
kill Putte Gowda. However, it was found that the common object of the assembly was
only chastisement of Putte Gowda. The question was whether four appellants can be
held liable for separate common intention of causing death of Putte Gowda? The
Supreme Court held that appellant 1 and 4 could not be held guilty of murder on the
principle of joint liability under section 34 because they were not given any notice and
reasonable opportunity to present their case on separate common intention of three
persons of causing death of Putte Gowda and Nanje Gowda as separate from common
object of the unlawful assembly which was chastisement only. Hence they had to be
judged for their individual actions which went beyond the common object of the
unlawful assembly. None of the injuries caused by the two appellants was fatal in
nature. Hence they were held liable under ss. 326 and 148 IPC only. Appellant 2 was
charged with causing spear wound to Nanje Gowda which was not found to exist in
the medical evidence, hence he was also charged only under s. 148. Appellant 3 had
hit Nanje Gowda on head with axe which was found to sufficient to cause death and
hence he was held guilty under section 302 IPC.

Distinguish Between Common Intention and Common Object:

Common Intention Common Object

Common object refers to the end result or t

There is a pre-existing understanding and agreement
purpose of committing the crime. It is the obj
between two or more individuals to commit a crime
goal that the accused had in mind when comm
together.
crime

Common intention is established before the commission Common object is established during the com
of the crime as pre-agreement for crime. of the crime as end goal of committing crime.

Common object must be the same as th

Common intention does not have to be the same as the
intention of the accused, as it refers to the obj
actual intention of the accused due to pre-agreement.
goal

Common intention can be inferred from the actions and Common object must be proven through evide
statements of the accused refers to the objective or goal of committing cri

Common intention is often used in cases involving

Common object is often used in cases involvin
conspiracy and criminal breach of trust, as it refers to a
such as murder, theft, and rioting, as it refe
pre-existing agreement between individuals to commit a
objective or goal of the crime that is being com
crime.

The punishment for common intention is the same as the The punishment for common object is the sam
punishment for the intended crime punishment for the committed crime.

Section 310(3) BNS:

Dacoity with murder:

If any one of five or more persons, who are conjointly committing dacoity, commits
murder in so committing dacoity, every one of those persons shall be punished with
death, or 1[imprisonment for life], or rigorous imprisonment for a term which may
extend to ten years, and shall also be liable to fine.

Mistake of Fact as General Exception

(S. 14 BNS)
Law and You > Criminal Laws > Bharatiya Nyaya Sanhita,
2023 > Chapter III: General Exceptions > Mistake of Fact as General
Exception (S. 14 BNS)

Chapter III of the Bharatiya Nyaya Sanhita, 2023 deals with the
“General Exceptions” which a person, accused of an offence under
the Sanhita or any special or local law can plead. This chapter
exempts certain acts from criminal liability. Throughout this Sanhita
every definition of an offence, every penal provision, and every
illustration of every such definition or penal provision, shall be
understood subject to the exceptions contained in the Chapter
entitled “General Exceptions”, though those exceptions are not
repeated in such definition, penal provision, or illustra0tion. If the
existence of facts, or circumstances bringing the case within any of
the exemptions is proved, negatives the existence of ‘Mens rea’
necessary to constitute the offence and thereby furnishes a ground
for exemption from criminal liability. In this article, we shall discuss
the defence of mistake of fact as general exception.

List of Sub-Topics:

o Introduction
o Section 14 BNS
o Terminology Used in Section 14
o Orders From Superiors
o Mistake of Law is No Exception
o Conclusion

Section 108 of the Bharatiya Sakshya Adhiniyam, 2023, lays

down that a person accused of an offence bears the burden
of proving the existence of circumstances to bring the case
within any of the General Exceptions. The court shall
presume the absence of such circumstances. The Section
clearly declares that the Court will presume that there are
no circumstances in the case which would bring the case
under Chapter III of General Exceptions of the Bharatiya
Nyaya Sanhita, 2023. Now it is on the part of the accused to
bring the evidences and prove the existence of
circumstances to bring the case within any of the General
Exceptions. Chapter III of the Bharatiya Nyaya Sanhita, 2023,
entitled ‘General Exceptions,’ which includes sections 14 to
44, exempts certain individuals from criminal liability. An
accused’s act or omission, even if prima facie falls within the
terms of a section defining an offense or prescribing
punishment for it, is not an offense, if it is covered by any of
the exceptions listed in chapter III of the Bharatiya Nyaya
Sanhita, 2023.

Section 14 of the Bharatiya Nyaya Sanhita, 2023:

Act done by a person bound, or by mistake of fact believing

himself bound, by law:

Nothing is an offence which is done by a person who is, or who by

reason of a mistake of fact and not by reason of a mistake of law in
good faith believes himself to be, bound by law to do it.

Illustrations:

(a) A, a soldier, fires on a mob by the order of his superior officer,

in conformity with the commands of the law. A has committed no
offence.

(b) A, an officer of a Court of Justice, being ordered by that Court to

arrest Y, and after due enquiry, believing Z to be Y, arrests Z. A has
committed no offence.

Note:

This Section corresponds to Section 76 of the Indian Penal Code,

1872

Ingredients of Section 14:

o The person is under a legal obligation to obey orders of the

government or the superior in question;
o The accused believed that he is bound by law to obey orders;
o The person did not know that the order was unlawful;
o There is some law or colour of law to justify the act;
o It is a mistake of fact;
o It is not a mistake of law.
o It is done honestly and in good faith;

The purpose of this section is to provide protection to persons, who

are bound by law or justified by law doing a particular act, but due
to mistake of fact committed an offence. The mistake must be in a
good faith and after exercise of due diligence. The justification for
such exemption is that a man who is mistaken about facts cannot
form necessary intention to commit the offence.

“Ignorantia facti excusat ignorantia legis neminem excusat” is well

known Maxim of Criminal Law, which means ignorance of fact is an
excuse, ignorance of law is no excuse. This maxim follows the
doctrine of Mens rea. Nothing is an offence which is done by a
person bound, by law nothing is an offence which is done by a
person who is, or who by reason of a mistake of fact, in good faith
believe himself to be bound by law to do it.

Section 14 excuses a person from criminal liability who, into good

faith, commits an act. Provided he believes he is bound to do so
under law, due to mistake of fact. The legal presumption is that
everyone knows the law of the land. An act will not be an offense if it
is committed in a manner by a person who by mistake of fact
believes to be bound by law or who bound by law. However, mistake
of law per se is not excusable.

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Terminology Used in Section 14 BNS:

Meaning of Good Faith:

A person can take the defence only when he acts in good faith and
with good intention and believes that his act is justified by law.
According to Black’s law dictionary, the word “justified” means “the
act done on adequate reason sufficiently supported by credible
evidence, when weighed by the unprejudiced mind, guided by
common sense and by correct rule of law”.

One of the essential ingredients that an offender requires to get

Sections 14 and 17 defence is that his conduct must be taken in
‘good faith’.

o The term ‘good faith’ has been defined in section 2(11) of BNS
as “Nothing is said to be done or believed without due care
and attention”.
o Section 3 (22) of the General Clauses Act 1897 defines the
term ‘good faith’ as “A thing shall be deemed to be done in
‘good faith’ where it is in fact done honestly, whether it is done
negligently or not”.
In Farrell v. State, 32 Ohio St. 456, 459 (877) case, the Court
observed that the term “honest belief”, and equivalent phrases, are
sometimes used to express two different ideas: (1) that the belief
must have been sincere and (2) that what was done would have
been proper had the facts been as they were mistakenly supposed
to be.

Meaning of “Mistake of Law”:

The maxim “ignorantia legis neminem excusat” means “ignorance

of the law excuses no man”. A mistake involving the
misunderstanding or incorrect application of the law with regard to
an act or transaction is called a mistake of law. A mistake of law is
where you are mistaken or ignorant about the law. Mistake of law is
a defence that the criminal defendant takes that they
misunderstood or was ignorant of the law as it existed at the time. It
is expected that individuals must be aware of the laws of land. This
defence of mistake of law applies in very limited circumstances.
Generally, the mistake of law is not excusable.

In Mohammad Ali v. Sri Ram Swarup, AIR 1965 All 161 case, it
was held that mistake or ignorance of the law, even in good faith, is
not a defence. It, nevertheless, may operate as a mitigating factor.
And the arrest of a person without a warrant not justified.

Meaning of “Mistake of Fact”:

Ignorance or mistake of fact is very often an excuse for what would

otherwise be a crime. Mistake of fact takes place when one of the
party or both the parties misunderstand each other leaving them at
a crossroads. It arises when accused misunderstood some fact that
negates an element of crime. Such a mistake can be because of an
error in understanding, or ignorance or omission etc. But a mistake
is never intentional, it is an innocent overlooking. A mistake of fact
is only a defence if it negates a material element of the crime and
where offence is so defined that proof of intention or foresight is
unnecessary.

In State of Orissa v. Khora Ghasi, 1978 CrLJ 1305

(Orissa) case, the accused while guarding is field short an arrow at
a moving object in the bona fide belief that it was a bear and in the
process caused a death of a man who was hiding there. The Court
held that he could not be held liable for the murder as his case was
fully covered by Sections 79 and 80 of IPC (S. 17 and 18 BNS).
In Keso Sahu v. Saligram Shah, 1977 CriLJ 1725 case, the
accused showed that he in good faith and believing that the offence
of smuggling rice was going on in the plaintiff’s house and thus he
brings the cart and Cart man to the police station. The said suspicion
was proved to be wrong. The court held that the accused can take
the defence of mistake of fact as he is doing the act in good faith
and believing it to be justified by law.

In Dhaki Singh v. State, AIR 1955 All 379 case, the accused shot
an innocent person mistaking him to be a thief, although he believes
that he is bound to nab the thief. According to the officer’s
finding, he was not in the position to apprehend him, fired at him.
The Court held that accused cannot take the defence of mistake of
fact as the act done by him was not justified.

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Orders from Superiors:

An act is not an offence if it is done by a person who because of

mistake of fact and not of mistake of law in good faith believes that
he is bound by law to do it. When a person is in fact not bound by
law to do something but he does that by reason of a mistake of fact
and not mistake of law in good faith believing that he is bound by
law to do it, it is not an offence. Mistake of fact and good faith must
be proved to be present while mistake of law must be proved to be
absent under this part of the section.

Illustration (a) attached to this section states that A, a soldier, fires

on a mob by the order of his superior officer, in conformity with the
commands of the law. A has committed no offence. The key words in
this illustration are ‘in conformity with the commands of the law’.
The subordinate officer is protected only when the orders of the
superior officer are in conformity with the commands of the law. If
such is not the case, he is liable for obeying the order. The
expression means that the orders are justified and valid in the eye
of law. All the legal requirements of a just order must have been
fulfilled, only then is a subordinate officer protected under this
section. Thus the orders are illegal, neither the superior officer who
gives the order nor the subordinate officer who executes or follows
the same is protected under this section. Thus in case of order from
superior, the Sanhita does not recognize mere duty of blind
obedience by the subordinate to the commands of superior as
sufficient to protect him from penal consequences of his act. In such
case the Sanhita expects that the subordinate must use his own
judgment.

In State of West Bengal v. Shew Mangal Singh, AIR 1981 SC

1917 case, where the facts were that a police patrol party opened
fire under the orders of a Deputy Commissioner of Police after it was
attacked on a dark night. One Assistant Commissioner of Police was
injured in the attack. As a result of the firing by the patrol party, two
persons were killed. After a lapse of about nine years, the police
personnel were prosecuted for murder. The Supreme Court in the
appeal against their acquittal held that the prosecution did not
succeed in proving the case against them. There was no question of
proving the defence of mistake of fact by the accused. It is clear that
the order of firing given by the superior officer to his subordinates
was given under commands of the law and, therefore, the patrol
party was bound to obey the orders under the first part of section 76
of IPC (S. 14 BNS). Since the first part of the section was applicable
there was no question of proving of mistake of fact and good faith
by the accused at all. Consequently, they were not held liable for
murder.

In Charan Das Narain Singh v. State, AIR (37) 1950 (P & H)

321 case, where information was received that some persons were
gambling in a tent. A party consisting of Harnam Singh, a superior
officer, and the accused, Charan Singh, a soldier, were sent to make
an inquiry. The party arrived and surrounded the tent. Soon after the
sound of a gun was heard and the deceased who was inside the tent
was found dead. At the trial, Charan Singh admitted that he had
fired the shot but pleaded that he had done so in obedience to the
order of his superior. The Court held that the order issued by the
superior was wholly unjustified and manifestly illegal. Hence, the
accused did not have any duty to follow such an order. In fact, it was
under his duty to defy any irrational and illegal order. Sections 76,
79 IPC (Ss. 14 and 17 BNS) or Exception 3 of section 300 IPC (S. 101
BNS) did not apply. Since the order was wholly unjustified, the firing
by Charan Das and the killing in obedience to the order was murder.

In R.S. Nayak v A.R. Antulay, 1986 SCR (2) 621 case the
Supreme Court held that the superior’s direction is no defence in
respect of criminal acts, as every officer is bound to act according to
law and is not entitled to the protection of a superior’s direction as a
defence in the matter of commission of a crime.

In Niamat Khan v. Empress, 17 PR 1883 case, Rattigan J.

observed: “Now to entitle a person to claim the benefit of Section 76
IPC (S. 14 BNS) is necessary to show the existence of a state of facts
which would justify the belief in good faith, interpreting the latter
expression with reference to Section 52 IPC (S. 2(11) BNS), that the
person to whom the order was given was bound by law to obey it.

Liability of Private Person to Assist Police:

Private person who are bound to assist the police under Section 40
of the Bharatiya Nagarik Suraksha Sanhita, 2023 is protected under
Section 14 BNS.

Mistake of Law is No Exception

In State Of Maharashtra vs Mayer Hans George, AIR 1965 SC

722 case the accused was a German national. He was on his way
from Zurich to Manila on a Swiss aircraft which arrived in Bombay
while in transit. He remained within the aircraft and did not come
out. He did not file a declaration under the Foreign Exchange
Regulation Act, 1947, regarding the gold he was carrying. During the
checking, the customs found the gold on aircraft. The accused was
booked under the Foreign Exchange Regulation Act, 1947. The
cause of action arose in India. The Supreme Court held that his trial
and conviction under the Indian law was valid. The Court also held
that it is not necessary for Indian law to be published outside India
so that foreigners can know about them. Thus Ignorance about the
Law or any change in it cannot be pleaded.

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Conclusion:

It can be concluded from the above discussion that the law does not
expect a person to obey illegal orders of his superior. In case of
order from superior, the Sanhita does not recognize mere duty of
blind obedience by the subordinate to the commands of superior as
sufficient to protect him from penal consequences of his act. In such
case the Sanhita expects that the subordinate must use his own
judgment. There is a possibility that if he does not obey an order
even though illegal, he may be liable under a departmental action
for disobeying his superior officer. Similarly, even though the
defence may fail, the circumstances of the case may justify
mitigation of penalty. Private person who are bound to assist the
police under Section 40 of the Bharatiya Nagarik Suraksha Sanhita,
2023 is protected under Section 14.
Mistake of Law and Mistake of Fact under BNS
Bharatiya Nyaya Sanhita, 2023 > Chapter III: General Exceptions >
Mistake of Law and Mistake of Fact
In legal terms, a “mistake” refers to an error made by an individual that
affects their understanding or actions related to a legal situation. This error
can fall under two main categories: Mistake of Law and Mistake of Fact.
Both concepts play a crucial role in legal defences, as they can sometimes
determine whether a person should be held legally accountable for their
actions.
A Mistake of Law occurs when an individual is unaware of a law or
misinterprets its meaning, leading them to unknowingly commit an illegal
act. In most legal systems, ignorance of the law is not typically accepted as
a valid defence, meaning that individuals are expected to be aware of the
laws governing their actions. On the other hand, a Mistake of Fact involves
a misunderstanding or incorrect belief about a fact that is central to the
case. For example, if someone accidentally takes another person’s property,
believing it to be their own, this could be a mistake of fact. In many
instances, a mistake of fact can serve as a valid defence, especially if it
negates the intent required to commit a crime.
Understanding the difference between these two types of mistakes is vital
for determining criminal liability and the defences available to a defendant.
In this article we shall understand the concept of mistake of law and
mistake of fact, which are very important in understanding general
exceptions under BNS.
List of Sub-Topics:
o Introduction
o Ignorantia facti doth excusat and ignorantia juris non excusat
o Mistake of Law
o Mistake of Fact
o Conclusion
A plain reading of sections 14 and 17 in the Bharatiya Nyaya Sanhita, 2023,
with special attention to the words ‘who by reason of a mistake of fact and
not by reason of a mistake of law in good faith believes’ appearing therein,
shows us that the protection of the sections applies only to mistake of fact
and not to mistake of law.
For example, if a man is caught by a ticket conductor for travelling on a
train without a ticket. He cannot claim that he was not aware that a ticket
is required while travelling on the train and shall be punished under
Section 138 of The Indian Railways Act, 1989. Before studying Section 14
and 17 of the Bharatiya Nyaya Sanhita, 2023, we have to study the concept
of mistake as a general defence. There are two types of defences based on
mistake: (1) Mistake of law and (2) Mistake of fact.
Chapter III of the Bharatiya Nyaya Sanhita, 2023, entitled ‘General
Exceptions,’ which includes sections 14 to 44, exempts certain individuals
from criminal liability. An accused’s act or omission, even if prima facie
falls within the terms of a section defining an offense or prescribing
punishment for it, is not an offense if it is covered by any of the exceptions
listed in chapter IV. These provisions can be used as general defences.
General defences are the excuses that help a person to escape his liability if
his action qualified under the given provision of defences. If the defendant
fails to prove why he has to do that act, he cannot escape from his liability.
There are some specific defences which are available for the wrongful acts:
1. Volenti non-fit injuria
2. Plaintiff, himself the wrongdoer
3. Inevitable accident
4. Act of God
5. Private defence
6. Mistake
7. Necessity
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Ignorantia facti doth excusat and ignorantia juris non excusat:
The maxims “Ignorantia facti doth excusat” and “ignorantia juris non
excusat” mean ignorance of fact is an excuse, but ignorance of the law is no
excuse. Thus the mistake of fact can be used as a defence during the trial.
In many situations, a criminal defendant may wish to argue that he or she
never intended to commit a crime and that the criminal act that occurred
was a result of a mistake of facts regarding the circumstances of the crime
or a misunderstanding concerning the law at the time. Such mistakes of
fact can be applied to a variety of criminal activities, but mistakes of law
are only rarely allowed as full defenses to criminal conduct.
Honest and Reasonable Belief or Good Faith:
A person can take the defence only when he acts in good faith and with
good intention and believes that his act is justified by law. According to
Black’s law dictionary, the word “justified” means “the act done on
adequate reason sufficiently supported by credible evidence, when weighed
by the unprejudiced mind, guided by common sense and by correct rule of
law”.
One of the essential ingredients that an offender requires to get Sections 76
and 79 defence is that his conduct must be taken in ‘good faith’. The term
‘good faith’ has been defined in section 52 IPC as “Nothing is said to be
done or believed without due care and attention”. Section 3 (22) of the
General Clauses Act 1897 defines the term ‘good faith’ as “A thing shall be
deemed to be done in ‘good faith’ where it is in fact done honestly, whether
it is done negligently or not”.
In Hamilton v. State, 29 S. W. (2d) 777 (1930) case, the Court held that if no
specific intent or other special mental element is required for the guilt of
the offense charged, a mistake of fact will not be recognized as an excuse
unless it was based upon reasonable grounds.
In Farrell v. State, 32 Ohio St. 456, 459 (877) case, the Court observed that
the term “honest belief”, and equivalent phrases, are sometimes used to
express two different ideas: (1) that the belief must have been sincere and
(2) that what was done would have been proper had the facts been as they
were mistakenly supposed to be.
In Hill v. State, 194 Ala. II, 69 So. 941 (1915) case, the Court held that who
kills another because of a mistaken belief that his own life is in imminent
peril at the hands of the other, is not excused if there is no reasonable
ground for this belief.
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Mistake of Law:
The maxim “ignorantia legis neminem excusat” means “ignorance of the
law excuses no man”. A mistake involving the misunderstanding or
incorrect application of the law with regard to an act or transaction is
called a mistake of law. A mistake of law is where you are mistaken or
ignorant about the law. Mistake of law is a defence that the criminal
defendant takes that they misunderstood or was ignorant of the law as it
existed at the time. It is expected that individuals must be aware of the laws
of land. This defence of mistake of law applies in very limited
circumstances. Generally, the mistake of law is not excusable.
Illustration1: A, a foreigner, kills a wild buffalo in India. He believes that
killing a wild buffalo to be lawful in India. ‘A’ is guilty of killing the wild
buffalo. He can’t take the defence that he was unaware of the law.
Illustration 2: If a man is caught by a ticket conductor for travelling on a
train without a ticket. He cannot claim that he was not aware that a ticket
is required while travelling on the train and shall be punished under
Section 138 of The Indian Railways Act, 1989.
In Mohammad Ali v. Sri Ram Swarup, AIR 1965 All 161 case, it was held
that mistake or ignorance of the law, even in good faith, is not a defence. It,
nevertheless, may operate as a mitigating factor. And the arrest of a person
without a warrant not justified.
In R v. Esop, (1836) 173 E.R. 203 case, where the person charged with
violating a published law is a stranger to the jurisdiction (India) and claims
in defence that the act in question was not an offence under the law of that
person’s home jurisdiction (Baghdad). The Court rejected this defence and
convicted him for the offence.
In Mayer Hans George v. the State of Maharashtra (AIR 1965 SC 722) case
the accused was a German national. He was on his way from Zurich to
Manila on a Swiss aircraft which arrived in Bombay while in transit. He
remained within the aircraft and did not come out. He did not file a
declaration under the Foreign Exchange Regulation Act, 1947, regarding
the gold he was carrying. During the checking, the customs found the gold
on aircraft. The accused was booked under the Foreign Exchange
Regulation Act, 1947. The cause of action arose in India. The Supreme
Court held that his trial and conviction under the Indian law was valid.
The Court also held that it is not necessary for Indian law to be published
outside India so that foreigners can know about them. Thus Ignorance
about the Law or any change in it cannot be pleaded.
When Can a Mistake of Law Be a Defence?
There are a few very limited circumstances in which a mistake of law can
serve as a defence to criminal charges. The circumstances in which a
mistake of law can serve as a defence include:
o When the law is not published
o When statute relied upon was later overturned or held to be
unconstitutional
o When the defendant relied upon a judicial decision
o When the defendant relied upon an interpretation by an appropriate
official
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Mistake of Fact:
Ignorance or mistake of fact is very often an excuse for what would
otherwise be a crime. Mistake of fact takes place when one of the party or
both the parties misunderstand each other leaving them at a crossroads. It
arises when accused misunderstood some fact that negates an element of
crime. Such a mistake can be because of an error in understanding, or
ignorance or omission etc. But a mistake is never intentional, it is an
innocent overlooking. A mistake of fact is only a defence if it negates a
material element of the crime and where offence is so defined that proof of
intention or foresight is unnecessary.
Under Section 17 of the Bharatiya Nyaya Sanhita, 2023, an act may not be
justified by law, yet if it is done under the mistake of fact, in good faith
under the belief that it is justified by law it will not be an offence.
Essentials of Mistake of Fact:
 o It must be honest done in good faith;
o It must be reasonable;
o It is not mere forgetfulness;
o It is not made by design but by mischance; and
o It must not be the mistake of law.
Illustration 1: Jacklyn went for dinner with her friend in a restaurant. She
and her friends enjoyed dinner and made a lot of fun. She had to leave
early, she hurriedly lifted a Samsung Mobile on the table and left the
venue. When she reached home, she noticed that her own Samsung mobile
was in her bag and in a hurry she had lifted someone else’s mobile thinking
it to be of her. She had mistaken because both mobiles were of the same
brand and same model with the same colour. She had no intention to steal
the mobile. Here Jacklyn made a reasonable mistake of fact. Hence Jacklyn
is not guilty of the offence of theft.
Illustration 2: Jacklyn went for dinner with her friend in a restaurant. She
and her friends enjoyed dinner and made a lot of fun. She had to leave
early, she hurriedly lifted the Samsung Mobile on the table and left the
venue. When she reached home, she noticed that her own Motorola mobile
was in her bag and in a hurry she had lifted someone else’s Samsung
mobile thinking it to be of her. Actually, the two models were totally
different from each other. She had no intention to steal the mobile. Here
Jacklyn made a reasonable mistake of fact. Hence Jacklyn is not guilty of
the offence of theft. She can defend herself that she had no intention to
permanently deprive the owner of the property, which is the main
ingredient of theft.
Illustration 3: In India hunting of a Wild Buffalo is an offence as per
section 9 of the Wildlife Protection Act 1972. If a person, who is ignorant of
section 9 of the Wildlife Protection Act, shoots a wild Buffalo thinking that
it is a domestic buffalo he is said to be acting in ignorance of the law as well
as of a fact.
In R. v. Prince, LR 2 CCR 154 case, Henry Prince (H) was convicted under
Section 55 of the Offences Against the Person Act 1861 of taking an
unmarried girl under the age of 16 out of the possession of her father
without the father’s consent. The girl, Annie Phillips (A), was in fact 14
years old, however, A had told H that she was 18, and H reasonably
believed that that was her age. The appellant appealed against his
conviction. Section 55 of the Offences Against the Person Act 1861 is silent
as to the mens rea required for the offence. The issue in question was
whether the court is required to read a mens rea requirement into a statute
which is silent as to the mens rea for an offence, and therefore if H’s
reasonable belief was a defence to the offence under Section 55. The Court
held that where a statute is silent as to the mens rea for an offence, the
court is not bound to read a mens rea requirement into the statute. The
offence was one of strict liability as to age, therefore a mens rea of
knowledge of the girl’s actual age was not required to establish the offence.
H’s reasonable belief was therefore no defence, and the conviction was
upheld. Court further laid down the following rules on a mistake of facts:
1. That, when an act is in itself, is plainly criminal, and is more severely
punishable if certain circumstances co-exist, ignorance of the
existence of such circumstances is no answer to a charge for the
aggravated offence;
2. That where an act is prima facie innocent and proper unless certain
circumstances co-exist, then ignorance of such circumstances is an
answer to the charge;
3. That even in the last-named cases, the state of defendant’s mind must
amount to absolute ignorance of the existence of circumstances,
which alters the character of the act, or to belief in its non-existence;
and
4. Where an act which is in itself wrong is, under circumstances,
criminal, a person who does the wrong act cannot set up as a defence
that he was ignorant of the facts which turned the wrong into crime.
In State v. McDonald, 7 Mo. App. 510 (1879) case, a streetcar conductor,
who forcibly ejected a passenger from the car under the honest and
reasonable (though mistaken) belief that his fare had not been paid. The
Court held that the conductor is liable to the passenger in a civil action but
not guilty of criminal assault and battery.
In People v. Cohn, 193 N. E. 150, 153 (934) case the Court held that an
honest mistake of fact will generally shield one from criminal prosecution.
In Keso Sahu v. Saligram Shah, 1977 CriLJ 1725 case, the accused showed
that he in good faith and believing that the offence of smuggling rice was
going on in the plaintiff’s house and thus he brings the cart and Cartman
to the police station. The said suspicion was proved to be wrong. The court
held that the accused can take the defence of mistake of fact as he is doing
the act in good faith and believing it to be justified by law.
In Dhaki Singh v. State, AIR 1955 All 379 case, the accused shot an
innocent person mistaking him to be a thief, although he believes that he is
bound to nab the thief. According to the officer’s finding, he was not in the
position to apprehend him, fired at him. The Court held that accused
cannot take the defence of mistake of fact as the act done by him was not
justified.
In State of Orissa v. Khora Ghasi, 1978 CrLJ 1305 (Orissa) case, the
accused while guarding is field short an arrow at a moving object in the
bona fide belief that it was a bear and in the process caused a death of a
man who was hiding there. The Court held that he could not be held liable
for the murder as his case was fully covered by Sections 79 and 80 IPC (Ss.
17, 18 BNS).
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Conclusion:
There are two types of defences based on mistakes: (1) a mistake of law and
(2) a mistake of fact. The defence of the mistake of law applies in very
limited circumstances. Generally, the mistake of law is not excusable. A
mistake of fact is only a defence if it negates a material element of the crime
and where offence is so defined that proof of intention or foresight is
unnecessary.

Judicial Acts as Exception to Criminal

Liability (Ss. 15 and 16 BNS)
Law and You > Criminal Laws > Bharatiya Nyaya Sanhita,
2023 > Chapter III: General Exceptions > Judicial Acts as Exception to
Criminal Liability (Ss. 15 and 16 BNS)

The concept of a judicial acts as exception to criminal liability holds

significant importance within criminal law. Generally, individuals
who commit illegal acts are held accountable for their actions.
However, there are specific circumstances in which certain actions,
typically performed by public officials, are exempt from criminal
liability. One of the key exceptions to this principle is when the act is
a result of a judicial or quasi-judicial process. In such cases, the law
recognizes that judges, magistrates, and other legal authorities may
perform certain actions as part of their official duties, even if those
actions might otherwise be deemed unlawful.

Judicial acts include actions like issuing a court order, making a

ruling, or carrying out decisions within the bounds of their legal
responsibilities. The rationale behind this exception lies in the idea
of ensuring judicial independence and the proper functioning of the
legal system. If judges and other officials were to face criminal
liability for their decisions or actions within the scope of their duties,
it could undermine the integrity of the judicial system and hinder the
fair administration of justice. This article discusses judicial acts as
exception to criminal liability, highlighting the legal framework and
the underlying principles that justify such immunity.

List of Sub-Topics:

o Introduction
o Section 15 BNS
o Section 16 BNS
o Distinguishing Ss. 15 and 16 BNS
o Conclusion

Chapter III of the Bharatiya Nyaya Sanhita, 2023, entitled ‘General

Exceptions,’ which includes sections 14 to 44, exempts certain
individuals from criminal liability. An accused’s act or omission, even
if prima facie falls within the terms of a section defining an offense
or prescribing punishment for it, is not an offense, if it is covered by
any of the exceptions listed in chapter III. General Exceptions (Sec.
15 and 16 BNS) relates acts of Judges and Courts (Judicial Acts),

The principles enunciated in Chapter 4 are in fact rules of evidence

carrying either conclusive or rebuttable presumptions. They deal
with the circumstances which preclude the existence of ‘Mens rea’.
They are the principles “Condition of non imputability” or “condition
of exemptions from criminal liability”. If the existence of facts, or
circumstances bringing the case within any of the exemptions is
proved, negatives the existence of ‘Mens rea’ necessary to
constitute the offence and thereby furnishes a ground for exemption
from criminal liability.

A person can take the defense only when he acts in good faith and
with good intention and believes that his act is justified by law.
According to Black’s law dictionary, the word “justified” means “the
act done on adequate reason sufficiently supported by credible
evidence, when weighed by the unprejudiced mind, guided by
common sense and by correct rule of law”.

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Section 15 BNS:

Act of Judge When Acting Judicially:

Nothing is an offence which is done by a Judge when acting judicially in

the exercise of any power which is, or which in good faith he believes to
be, given to him by law.

Note:

This Section corresponds to Section 77 of the Indian Penal Code,

1872

Ingredients of S. 15 BNS:

o The act must be done by a judge;

o He must be exercising his power judicially;
o He is acting in a good faith; and
o He believes that such power are given to him by law.

Provisions contained in this section is analogous to the what has

been addressed in the Judicial Officers Protection Act 1850.Under
this section a Judicial officer is protected for acts bona fide done in
exercise of judicial power. Thus, according to the section a Judge is
exempted not only in those cases in which he proceeds irregularly
in the exercise of a power which the law gives him, but also in cases
where he exceeds his jurisdiction in good faith and has no lawful
powers. For example: a judge who sentences a prisoner to death
(even wrongly) is not responsible for his death by hanging. The act
of judge is exempted under the code from criminal liability where
the judge is not charged of the crime committed. As the acts show
absence of mens rea i.e., guilty mind.

Case Laws:

In Albert v. Levin, (1981) 1 All ER 628 (D.C.) case, the Court

held that under Section 77 IPC (S. 15 BNS) a Judge is exempted not
only in those cases in which he proceeds irregularly in the exercise
of power which the law gives him, but also in cases where he, in
good faith, exceeds his jurisdiction and has no lawful powers.

In Megh Raj vs Zakir Hussain, (1875) ILR 1 All 280 case, the
High Court of Allahabad has held that no person acting judicially is
liable for an act done or ordered to be done in the discharge of his
official duty within the limits of his jurisdiction and in such a case the
question of acting in good faith does not arise. The question of good
faith is irrelevant only when a judge acts without jurisdiction. But
when there is jurisdiction, the immunity extends even to acts which
constitute even an abuse of it.

In A K Chaudhary v. State of Gujrat, 2006 CrLJ 726 (Guj) case,

the Court held that the Judicial officers Protection Act provides
protection of two broad categories of acts done or ordered by a
judicial officer in his judicial capacity. In the first category falls the
acts which are within the limits of his jurisdiction. The second
category encompasses the acts which are not within the jurisdiction
of the judicial officer, but are done or ordered by him, believing in
good faith that he had jurisdiction to do or order them.

In Surendra Kumar Bhatia v. Kanhaiya Lal, AIR 2009 SC

1961 case, the Court held that a Collector who exercises powers of
enquiry and award under the Land Acquisition Act, 1894 is not
acting judicially because he is not a judge. He is not entitled to the
protection of section 77 IPC (S. 15 BNS).

In Megh Raj vs Zakir Hussain (1875) case, the High Court of

Allahabad has held that ‘no person acting judicially is liable for an
act done or ordered to be done in the discharge of his official duty
within the limits of his jurisdiction and in such a case the question of
acting in good faith does not arise. The question of good faith is
irrelevant only when a judge acts without jurisdiction. But when
there is jurisdiction, the immunity extends even to acts which
constitute even an abuse of it.

In ES Sanjeeva Rao v. CBI, Mumbai, 2012 CrLJ 4053

(Bom) case, the ‘Regional Provident Fund Commissioner while
passing order under section 7-A of 1952 Act is entitled to get
protection as envisaged under section 77 of IPC (S. 15 IPC) and
section 3(1) of Judges (Protection) Act, 1985.

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Section 16 BNS:

Act Done Pursuant to the Judgment or Order of Court:

Nothing which is done in pursuance of, or which is warranted by the

judgment or order of, a Court of Justice; if done whilst such judgment or
order remains in force, is an offence, notwithstanding the Court may
have had no jurisdiction to pass such judgment or order, provided the
person doing the act in good faith believes that the Court had such
jurisdiction.

For example: A, an officer of the court, arrested B, following the

court’s order. Here, A has committed no offence.

Note:

This Section corresponds to Section 78 of the Indian Penal Code,

1872

Ingredients of Section 16 BNS:

o Act done by a person is warranted by the judgment or order of,

a Court of Justice;
o Such order or judgment is in a force;
o The Court giving judgment or issuing order may or may not
have required jurisdiction; and
o The person is doing his part in a good faith believing that the
Court has such jurisdiction.

This section is a result of Section 15 BNS. This section provides

protection to officers acting under the authority of a court’s decision
or order of a Court of justice. The section states that if an act is
committed at the time of the imposition of a decision or order of a
 court, it will not be considered an offence, even if the court does not
have jurisdiction to pass such a decision. However, the act must be
done believing in good faith that the court has such jurisdiction.
Under this section, one can plead a mistake of law as a defence.

In Kapur Chand vs State (1976) In pursuance of an order of the

Magistrate, the accused (husband) had withdrawn the property of
his wife from her control without her consent. It was held that the
husband had not committed any offence as he was protected under
section 78 of the IPC (S. 16 BNS).

Difference Between Section 15 and Section 16 BNS:

Section 16 differs from section 15 on the question of Jurisdiction. In

Section 16, the officer is protected in carrying out an order of a court
which may have no jurisdiction at all, if he believed that the court
had jurisdiction; whereas under section 15 the judge must be acting
within his jurisdiction to be protected by it.

Section 15 Section 16

This Section deals with act of a person acting under

This Section deals with act of a Judge or Magistrate
the direction of a Judge or Magistrate

This Section provides an exception for judicial officers This Section extends similar protection to any person
performing their duties in good faith. who acts under the direction of a judge or magistrate.

This section states that an act done by a judge or

According to this Section, if an individual commits an
magistrate in the course of their judicial duties will not be
act on the instructions of a judicial officer, they are not
considered an offense, even if it would otherwise be
criminally liable, provided the action was performed in
illegal, as long as the act is performed in the discharge of
good faith and within the scope of judicial authority.
their official duty.

Example: A judge who passes a judgment that may later

be overturned is still protected under Section 15 BNS as Example: A police officer executing an arrest warrant
long as they acted within their official role and didn’t based on a judge’s order would not be liable
engage in corruption or misconduct.

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Conclusion:

Provisions contained in this section is analogous to the what has

been addressed in the Judicial Officers Protection Act 1850.Under
this section a Judicial officer is protected for acts bona fide done in
exercise of judicial power. Thus, according to the section a Judge is
exempted not only in those cases in which he proceeds irregularly
in the exercise of a power which the law gives him, but also in cases
where he exceeds his jurisdiction in good faith and has no lawful
powers.

Mistake of Fact Justified by Law (S. 17

BNS)
> Bharatiya Nyaya Sanhita, 2023 > Chapter III: General Exceptions >
Mistake of Fact Justified by Law (S. 17 BNS)

Chapter III of the Bharatiya Nyaya Sanhita, 2023 deals with the “General Exceptions”
which a person, accused of an offence under the Sanhita or any special or local law
can plead. This chapter exempts certain acts from criminal liability. Throughout this
Sanhita every definition of an offence, every penal provision, and every illustration of
every such definition or penal provision, shall be understood subject to the exceptions
contained in the Chapter entitled “General Exceptions”, though those exceptions are
not repeated in such definition, penal provision, or illustration. If the existence of
facts, or circumstances bringing the case within any of the exemptions is proved,
negatives the existence of ‘Mens rea’ necessary to constitute the offence and thereby
furnishes a ground for exemption from criminal liability. In this article, we shall
discuss the defence of mistake of fact justified by law.

List of Sub-Topics:

o Introduction
o Section 17 BNS
o Terminology Used in Section 17
o Comparing Section 14 and Section 17 of BNS
o Mistake of a Law is No Exception
o ‘Conclusion

Section 108 of the Bharatiya Sakshya Adhiniyam, 2023 lays down that a person
accused of an offence bears the burden of proving the existence of circumstances to
bring the case within any of the General Exceptions. The court shall presume the
absence of such circumstances. The Section clearly declares that the Court will
presume that there are no circumstances in the case which would bring the case under
Chapter III of General Exceptions of the Bharatiya Sakshya Adhiniyam, 2023. Now it
is on the part of the accused to bring the evidence and prove the existence of
circumstances to bring the case within any of the General Exceptions. Chapter III of
the Bharatiya Sakshya Adhiniyam, 2023, entitled ‘General Exceptions,’ which
includes sections 14 to 44, exempts certain individuals from criminal liability. An
accused’s act or omission, even if prima facie falls within the terms of a section
defining an offense or prescribing punishment for it, is not an offense, if it is covered
by any of the exceptions listed in chapter IV. In this article, we shall study provisions
of Section 17 of the Bharatiya Sakshya Adhiniyam, 2023 regarding an act justified by
law. To understand Section 17 of the Bharatiya Sakshya Adhiniyam, 2023 you should
be clear about the concept of mistake of law and mistake of fact.

Section 17 of the Bharatiya Nyaya Sanhita, 2023:

Act done by a person justified, or by mistake of fact believing himself, justified,

by law:

Nothing is an offence which is done by any person who is justified by law, or who by
reason of a mistake of fact and not by reason of a mistake of law in good faith,
believes himself to be justified by law, in doing it.

Illustration:

A sees Z commit what appears to A to be a murder. A, in the exercise, to the best of

his judgment exerted in good faith, of the power which the law gives to all persons of
apprehending murderers in the fact, seizes Z, in order to bring Z before the proper
authorities. A has committed no offence, though it may turn out that Z was acting in
self-defence.

Note:

This Section corresponds to Section 79 of the Indian Penal Code, 1872

Ingredients of Section 17 BNS:

o The act of a person is justified by law or by mistake he believes that his act is
justifiable by law;
o It is a mistake of fact;
o It is not a mistake of law;
o It is done honestly and in good faith.
Section 17 BNS excuses a person from criminal liability who, into good faith,
commits an act. Provided that his act is justifiable by law or he believes himself that
his act to be justified by law.

The first part states that when any person is justified by law to do something, the
doing of that thing is not an offence. A person is justified by law to do something
when the law provides him a right to do that thing. According to this part of the
section, therefore, doing what is justified is not an offence under law. Matters relating
to mistake of fact, mistake of law or good faith do not come up for consideration
under this part at all, because it is justified by law.

The second part of the section, deals with the defence of mistake of fact. Under this
part a thing is not an offence if it is done by a person who because of mistake of fact
and not of mistake of law in good faith believes that he is justified by law to do it.
Under this part of the section mistake of fact and good faith must be proved to be
present whereas mistake of law must be proved to be absent.

Private persons acting under Sections 32 (Aid to person, other than a police officer,
executing warrant), 40 (Arrest by private person and procedure on such arrest), 74
(Warrant to whom directed), and 75 (Warrant may be directed to any person) of the
Code of Criminal Procedure are protected under this Section.

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Terminology of Section 17 BNS:

Meaning of Good Faith:

A person can take the defence only when he acts in good faith and with good intention
and believes that his act is justified by law. According to Black’s law dictionary, the
word “justified” means “the act done on adequate reason sufficiently supported by
credible evidence, when weighed by the unprejudiced mind, guided by common sense
and by correct rule of law”.

One of the essential ingredients that an offender requires to get Sections 14 and 17
defence is that his conduct must be taken in ‘good faith’.

o The term ‘good faith’ has been defined in section 2(11) of BNS as “Nothing is
said to be done or believed without due care and attention”.
o Section 3 (22) of the General Clauses Act 1897 defines the term ‘good faith’ as
“A thing shall be deemed to be done in ‘good faith’ where it is in fact done
honestly, whether it is done negligently or not”.
In Farrell v. State, 32 Ohio St. 456, 459 (877) case, the Court observed that the term
“honest belief”, and equivalent phrases, are sometimes used to express two different
ideas: (1) that the belief must have been sincere and (2) that what was done would
have been proper had the facts been as they were mistakenly supposed to be.

Meaning of “Mistake of Law”:

The maxim “ignorantia legis neminem excusat” means “ignorance of the law excuses
no man”. A mistake involving the misunderstanding or incorrect application of the
law with regard to an act or transaction is called a mistake of law. A mistake of law is
where you are mistaken or ignorant about the law. Mistake of law is a defence that
the criminal defendant takes that they misunderstood or was ignorant of the law as it
existed at the time. It is expected that individuals must be aware of the laws of land.
This defence of mistake of law applies in very limited circumstances. Generally, the
mistake of law is not excusable.

In Mohammad Ali v. Sri Ram Swarup, AIR 1965 All 161 case, it was held that
mistake or ignorance of the law, even in good faith, is not a defence. It, nevertheless,
may operate as a mitigating factor. And the arrest of a person without a warrant not
justified.

Meaning of “Mistake of Fact”:

Ignorance or mistake of fact is very often an excuse for what would otherwise be a
crime. Mistake of fact takes place when one of the party or both the parties
misunderstand each other leaving them at a crossroads. It arises when accused
misunderstood some fact that negates an element of crime. Such a mistake can be
because of an error in understanding, or ignorance or omission etc. But a mistake is
never intentional, it is an innocent overlooking. A mistake of fact is only a defence if
it negates a material element of the crime and where offence is so defined that proof of
intention or foresight is unnecessary.

In State of Orissa v. Khora Ghasi, 1978 CrLJ 1305 (Orissa) case, the accused
while guarding is field short an arrow at a moving object in the bona fide belief that it
was a bear and in the process caused a death of a man who was hiding there. The
Court held that he could not be held liable for the murder as his case was fully covered
by Sections 79 and 80 of IPC (S. 17 and 18 BNS).

In Keso Sahu v. Saligram Shah, 1977 CriLJ 1725 case, the accused showed that he
in good faith and believing that the offence of smuggling rice was going on in the
plaintiff’s house and thus he brings the cart and Cart man to the police station. The
said suspicion was proved to be wrong. The court held that the accused can take the
defence of mistake of fact as he is doing the act in good faith and believing it to be
justified by law.
In Dhaki Singh v. State, AIR 1955 All 379 case, the accused shot an innocent person
mistaking him to be a thief, although he believes that he is bound to nab the thief.
According to the officer’s finding, he was not in the position to apprehend him, fired
at him. The Court held that accused cannot take the defence of mistake of fact as the
act done by him was not justified.

In Bonda Kui v. Emp, AIR 1943 Pat 64 case, Bonda Kui and her niece were the sole
residents of the house. In the middle of the night, she saw a figure dancing in a state of
complete nudity with a broomstick tied on one side and a torn mat around the waist.
The woman thought it is an evil spirit which consumes humans and so she gave
repeated blows by a hatchet and felled the thing to the ground. She immediately
informed her niece that she had killed an evil spirit. Examination showed, however,
that she had killed a human being who was the wife of her husband’s brother. The
only evidence, in this case, was the statements made by the appellant from time to
time. All along she maintained that she did not take the unfortunate deceased to be a
human being at all but thought that it was something which eats up human beings.

Reversing the judgment of conviction and sentence of six years’ imprisonment of the
lower court, the Patna High Court allowed the defence of mistake of fact under section
79 IPC (S. 17 BNS) and observed that the state of society to which the appellant
belonged and the fact that she was a superstitious woman were important
considerations to decide as to whether she had acted in good faith.

In Hayat v. Emp., AIR 1932 Lahore 243 case, the accused in the early gloaming saw
a stooping child in a place which was believed by him and other villagers to be
haunted. Believing the child to be a spirit or demon he attacked it and gave blows
which resulted in its death before he realised his mistake. He was convicted under
section 304-A IPC (S. 106(1) BNS) and his defence under section 79 IPC (S. 17 BNS)
was rejected on the ground that he had not acted in good faith.

In Chirangi v. State (1952) Cri LJ 1212 case, the accused in a moment of delusion
believed his son to be an animal, he assailed him with an axe. It was held that he was
justified as he mistook a human being to be a dangerous animal and was not held
liable for his mistake.

In Prof. Sumer Chand v. Union of India, AIR 1993 SC 2579 case, the Court held
that if the performance of the act which constitutes the offence is justified by law, i.e.
by some other provision, then Section 79 IPC (S. 17 BNS), exonerates the doer
because the act ceases to be an offence. Likewise, the act was done by one who by
reason of a mistake of fact in good faith believes himself to be justified by the law in
doing it then also, exception operates and the bona fide belief, although mistaken,
eliminates the culpability.

In Raj Kapoor v. Laxman, AIR 1980 SC 605 case, Mr. Raj Kapoor was prosecuted
for exhibiting the film “Satyam Shivam Sundaram” on the charge of Section 292 IPC
(S. 294 BNS) (obscenity). In this case, Raj Kapoor exhibited the film after getting a
certificate in respect of the film under Section 5A of the Cinematograph Act, 1952.
The Supreme Court observed that if the offender can irrefutably establish that he is
actually justified by the law in doing the act or alternatively, that he entertained a
mistake of fact and in good faith believed that he was justified by the law in
committing the act, then the weapon of Section 79 demolishes the prosecution. The
Court held that Raj Kapoor committed no offence in view of Section 79 of IPC (S. 17
BNS).

In Regina vs. Prince, 154 (1875), where the defendant was convicted of taking an
unmarried girl under 16 years out of the possession and against the will of her father.
The jury found that the girl had told the defendant she was 18, the defendant honestly
believed the statement, and his belief was reasonable. Defendant argued that the
statute has a requirement read into it that the prosecution must prove that the
defendant believed the girl he had taken was over 16. State argued that the statute does
not require this proof. The act of taking a girl out is wrong in and of itself – that is the
mens rea. It does not matter that he thought the girl was older. Just like it would not
matter whether he knew or did not know whether she is under 16. However, it would
have mattered if he did not know the girl was in the custody of her father. The Court
held conviction. The Court reasoned that the court interpreted the statute to require a
strict liability application. The Common Law does not allow defences to strict
liability.

In R v. Tolson (1889) case, where in September 1880, the appellant and defendant
married. In December 1881, the appellant went missing after the ship, he was on sank
in the sea. The defendant waited for her spouse (the appellant) for six years in the
hopes that he would return. The defendant eventually remarried, believing her spouse
is dead. After learning of his wife’s (the defendant) remarriage, the appellant returned
eleven months later and filed a bigamy appeal against her. The appellate court stated
that Ms. Tolson was protected in this scenario by an old common law norm. The court
found that an “honest and reasonable belief” in the presence of circumstances that, if
true, would render the accused’s actions innocent constituted a valid defence.

In Sheo Surun Sahai v. Mohamed Fazil Khan, (1868) 10 WR (Cri) 20 case, a

police officer saw a horse tied up in B’s premises resembling one which father had
lost a short time ago. He jumped to conclusion that B had either stolen the horse
himself or had purchased it from the thief. He compelled B for its possession. He
came to know that B had bought the horse from one S. He sent for S and charged S
with the theft, and compelled him to give bail when an investigation was pending.
During this period officer failed to take the trouble to find credible information as to
whether it was his father’s horse or not. The Court held that the police officer had
neither acted in good faith nor with due care and hence Section 79 IPC (S. 17 BNS)
does not protect him.

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 Distinction between Section 14 and Section 17 of BNS:

Section 14 Section 17

An act done by a person bound, or by mistake of An act done by a person justified, or by mistake of fact
fact believing himself bound, by law: Nothing is an believing himself, justified, by law: Nothing is an offence
offence which is done by a person who is, or who which is done by any person who is justified by law, or who
by reason of a mistake of fact and not by reason of a by reason of a mistake of fact and not by reason of a mistake
mistake of law in good faith believes himself to be, of law in good faith, believes himself to be justified by law,
bound by law to do it. in doing it.

Section 14 deals with those class of cases where

Section 17 deals with those class of cases where person by
person by reason of mistake (or ignorance) of the
reason of mistake of fact considers himself justified by law to
fact, in good faith, considers himself bound by law
do the act in a particular way.
to do an act.

There is real or supposed obligation in doing a There is real or supposed justification in doing a particular
particular act. act.

Illustration: A sees Z commit what appears to A to be a

murder. A, in the exercise, to the best of his judgment exerted
Illustration: A, a soldier, fires on a mob by the order in good faith, of the power which the law gives to all persons
of his superior officer, in conformity with the of apprehending murderers in the fact, seizes Z, in order to
commands of the law. A has committed no offence. bring Z before the proper authorities. A has committed no
offence, though it may turn out that Z was acting in self-
defence.

Liability of Private Person:

Private persons acting under Sections 32 (Aid to person, other than a police officer,
executing warrant), 40 (Arrest by private person and procedure on such arrest), 74
(Warrant to whom directed), and 75 (Warrant may be directed to any person) of the
Code of Criminal Procedure are protected under this Section.

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Mistake of Law is No Exception

In State Of Maharashtra vs Mayer Hans George, AIR 1965 SC 722 case the
accused was a German national. He was on his way from Zurich to Manila on a Swiss
aircraft which arrived in Bombay while in transit. He remained within the aircraft and
did not come out. He did not file a declaration under the Foreign Exchange Regulation
Act, 1947, regarding the gold he was carrying. During the checking, the customs
found the gold on aircraft. The accused was booked under the Foreign Exchange
Regulation Act, 1947. The cause of action arose in India. The Supreme Court held that
his trial and conviction under the Indian law was valid. The Court also held that it is
not necessary for Indian law to be published outside India so that foreigners can know
about them. Thus Ignorance about the Law or any change in it cannot be pleaded.

Conclusion:

Section 14 BNS deals with those class of cases where person by reason of mistake (or
ignorance) of the fact, in good faith, considers himself bound by law to do an act,
while, Section 17 BNS deals with those class of cases where person by reason of
mistake of fact considers himself justified by law to do the act in a particular way. In
Section 17 BNS there is real or supposed justification in doing a particular act. Section
17 BNS excuses a person from criminal liability who, into good faith, commits an act,
provided that his act is justifiable by law or he believes himself that his act to be
justified by law.

Accident in Doing Lawful Act (S. 18 BNS)

Law and You > Criminal Laws > Bharatiya Nyaya Sanhita, 2023 > Chapter
III: General Exceptions > Accident in Doing Lawful Act (S. 18 BNS)

To constitute a crime, the act must consist mens rea and actus rea, where mens rea is
a guilty mind and actus rea is the guilty act. Chapter III of the Bharatiya Nyaya
Sanhita, 2023 is based on the absence of a mens rea. Excusable defences are those
defences that the accused can take, even though the wrongful act took place, but there
existed no criminal intent. In this article, we shall study an accident in doing lawful
act as exception to criminal liability.

Accident in Doing Lawful Act (S. 18 BNS)

The word accident is derived from the Latin verb accidere, signifying “fall upon,
befall, happen, chance.” On this basis of this meaning ‘accident’ may be defined as
some sudden and unexpected event taking place without expectation, upon the instant,
rather than something that continues, progresses or develops; something happening by
chance; something unforeseen, unexpected, unusual, extraordinary, or phenomenal,
taking place not according to the usual course of things or events, out of the range of
ordinary calculations; that which exists or occurs abnormally, or an uncommon
occurrence.

The word ‘accident can be used for denoting a calamity, casualty, catastrophe,
disaster, an undesirable or unfortunate happening; any unexpected personal injury
resulting from any unlooked-for mishap or occurrence; any unpleasant or unfortunate
occurrence that causes injury, loss, suffering, or death; some untoward occurrence
aside from the usual course of events.

Section 18 of BNS exempts a person from criminal liability if, the act must have been
done without any criminal intention or knowledge; the act alleged to have been done
against the accused must be lawful; the act must have been done in a lawful manner
by lawful means and with proper care and caution.

Section 18 BNS:

Accident in doing a lawful act:

Nothing is an offence which is done by accident or misfortune, and without any

criminal intention or knowledge in the doing of a lawful act in a lawful manner by
lawful means and with proper care and caution.

Illustration:

A is at work with a hatchet; the head flies off and kills a man who is standing by. Here
if there was no want of proper caution on the part of a, his act is excusable and not an
offence.

Note:

This Section corresponds to Section 80 of the Indian Penal Code, 1872

Essentials of Section 18 BNS:

The act done by the accused,

o must have been done without any criminal intention or knowledge;

o must be lawful;
o Must have been done in lawful manner;
o Must have been done in lawful means;
o There is no want of proper caution on part of accused

Other Examples:

o In a game of cricket batsman hits a ball, which strikes a man on the head and he
dies. Such death is an accident and batsman has not committed an offence.
o A shoots at an owl sitting on a bush with an intention to kill it but kills B who
was behind the bush. A commits no offence.
 o A takes up a gun, and without examining whether it is loaded or not points it in
sport at B, and pulls trigger. B dies. It is not accident because proper caution is
not taken by A. A is guilty of culpable homicide.
o A shoots at a bird in B’s house in order to steal it, and kills B. A is liable, as his
act was not lawful as stealing a bird is not a lawful act.

The section specifically mentions that a lawful act in a lawful manner by lawful
means. If an act is lawful but done it through unlawful manner the section doesn’t
have any application. Further the section emphasis act must be done with proper care
and caution. What is expected is not utmost care, but sufficient care that a prudent and
reasonable man would consider adequate, in the circumstances of cases

More Examples:

o A firecracker worker working with Gun powder knows that it can cause
explosion and must take precaution against it. If it causes an explosion and kills
a third person, he cannot claim defence of this section because the outcome was
expected even though not intended.
o If a car explodes killing a person, it is an accident because a person on average
prudence does not expect a car to explode and so he cannot be expected to take
precautions against it.
o A prepares a dish for B and puts poison in it so as to kill B. However, C comes
and eats the dish and dies. The death of C was indeed an accident because it
was not expected by A, but the act that caused the accident was done with a
criminal intention. Thus, A cannot claim protection under Section 18 BNS.
o Requesting rent payment from a renter is a lawful act but threatening him with
a gun to pay rent is not lawful manner and if there is an accident due to the gun
and if the renter gets hurt or killed, defence under this section cannot be
claimed.
o A owner of a borewell must fence the hole to prevent children falling into it
because any person with average prudence can anticipate that a child could fall
into an open borewell. An accident caused due to negligence is not excusable.

Thus to bring an act within the meaning of the term accident used in section 18 BNS,
an essential requirement is that the happening of the incident cannot be attributed to
human fault. It is something that happens out of an ordinary course of things.

In order for an accused to avail the benefit under S. 18 BNS, proof of no criminal
intention or knowledge is of high significance and necessary. The court shall view the
case in the absence of certain circumstances, making it a part of S. 108 of the
Bharatiya Sakshya Adhiniyam, 2023.

In K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605 case, it had been held
that the burden of proof for availing a defence lies upon the accused. The accused
needs to satisfy the court that there existed no mens rea.
In Tunda v. Rex, AIR 1950 All 95 case, appellant Tunda and deceased Munshi were
friends and fond of wrestling, participated in a wrestling match and Munshi suffered
an injury which resulted in his death. Tunda was charged under Section 304 A IPC
(106(1) BNS). The High Court held that when both agreed to wrestle with each other,
there was an implied consent on the part of each to suffer accidental injuries. In the
absence of any proof of foul play, it was held that the act was accidental and
unintentional. The section specifically mentions that a lawful act in a lawful manner
by lawful means. If an act is lawful but done through unlawful manner the section
doesn’t have any application. Further, the section emphasis act must be done with
proper care and caution. What is expected is not utmost care, but sufficient care that a
prudent and reasonable man would consider adequate.

The illustration under Section 25 BNS is relevant for the purposes of this case. It runs
as follows: “A and Z agree to fence with each other for amusement. This agreement
implies the consent of each to suffer any harm which in the course of such fencing,
may be caused without foul play; and if A, while playing fairly, hurts Z, A commits
no offence.”

In State of Orissa v. KhoraGhasi,1978 Cri.LJ 1305 case, the accused killed the
victim by shooting an arrow with the bona fide belief that he was shooting a bear who
had entered his field to destroy his crops. The Orissa Divisional Bench of High court
acquitted the accused under Section 80 of IPC (S. 18 BNS).

In Jagesher v. Emperor, AIR 1924 Oudh 228 case, the accused was beating a
person with his fist. The latter’s wife intervened with two-month-old baby on her
shoulder. The accused hit the woman also the blow struck the child on the head and
the child died from the effects of the blow. The accused was held liable, even though
the child was hit by accident. The reason is that the accused was not doing a lawful act
in a lawful manner by lawful means.

In Bhupendrasinh A. Chudasama V. State Of Gujarat, 1998 Cri.LJ 57

(S.C.) case, the appellant, who was an armed constable shot his superior, the head
constable which resulted in his death. Both the persons were posted in the same
platoon at Khampala Dam which was in danger on account of heavy rainfall. One
evening, the accused noted the victim walking near the tower of the dam at which he
aimed his rifle at short range and shot the victim. The accused pleaded he was doing
his patrolling duty. The Supreme Court refused to give the accused the benefit under
S. 80 IPC (S. 18 BNS) as the act was not committed with proper care and caution and
he was convicted under Section 302 IPC (S. 103(1) BNS) and sentenced to life
imprisonment.

Contributory negligence cannot be a defence to a criminal charge under the exception

of an accident.
In R v. Walker, 1 C and P 330 case, the accused was driving a horse buggy without
any reins, the victim was walking on the road intoxicated. The accused called out to
the victim twice to get him out of the way but the victim did not comply due to his
state. The victim was run over by the horse and killed. The accused was held for
manslaughter as it was his duty to drive the buggy with proper care and caution even
if the other person is negligent.

In Sukhdev Singh v. State of Delhi, Appeal (Crl.) 54 of 2003 case, the accused
pleaded that while doing a lawful act, he accidentally committed the murder of the
deceased. But the evidence showed that the accused during the course of the scuffle
deliberately used a gun and fired shots at the deceased. Hence, the Supreme Court
held that it was not a case of an accident covered under Section 80 IPC (S. 18 BNS).

In Dr Saroja Patil v. State of Maharashtra, CRI.APP. 2502.2005 case, The Court

said that medical negligence under criminal law is that act which is done or failed to
be done by any medical practitioner. To prosecute under medical negligence, it has to
be proved that in the given facts and circumstances no medical professional in his
ordinary senses and prudence would have done or failed to do so. Moreover, the
criminal liability cannot be laid unless the negligence was so obvious and of such a
high degree that it would be culpable by applying the settled norms.

Conclusion:

In order for an accused to avail the benefit under S. 18 BNS, proof of no criminal
intention or knowledge is of high significance and necessary. The court shall view the
case in the absence of certain circumstances, making it a part of S. 108 of the
Bharatiya Sakshya Adhiniyam, 2023. The act must be lawful; the act must have been
done in a lawful manner by lawful means and with proper care and caution. In such a
case, the accused may be acquitted by the Court.

Doctrine of Necessity or Doctrine of Necessitatis

(S. 19 BNS)
Law and You > Criminal Laws > Bharatiya Nyaya Sanhita,
2023 > Chapter III: General Exceptions > Doctrine of Necessity or
Doctrine of Necessitatis (S. 19 BNS)

The Doctrine of Jus Necessitatis, often referred to as the “Doctrine of

Necessity,” is a principle under the Bharatiya Nyaya Sanhita, 2023,
that permits actions which would otherwise be considered illegal if
they are necessary to protect vital national interests or life. The
doctrine is primarily invoked during times of emergency or
exceptional circumstances, when a state or individual is faced with a
choice between violating a legal norm or suffering a greater harm or
loss. In essence, it justifies acts that might be deemed unlawful if
they are carried out to avert a crisis, such as protecting sovereignty,
national security, or survival.

Historically, this doctrine has been applied in various contexts, such

as self-defence, humanitarian intervention, and situations involving
the preservation of life or territorial integrity. The underlying
philosophy is that certain actions, although potentially infringing
upon established legal norms, may be excused due to the urgent
need to safeguard fundamental interests. In this article, we shall
discuss the Doctrine of Necessity, which is the basis of Section 19
BNS.

Chapter III of the Bharatiya Nyaya Sanhita, 2023 containing Sections

14 to 44 deals with provisions for General Exceptions. A person
committing an offence under the circumstances and exceptions
mentioned in Chapter III is excused from criminal liability and
punishment shall not be imposed upon him in such case. Section 19
of Bharatiya Nyaya Sanhita, 2023 is one such provision that deals
with the act done in necessity. It is based on the doctrine of jus
necessitatis. This doctrine emanates from two maxims: necessitas
non habet meaning necessity knows no law and necessitas vincit
legume necessity meaning necessity.

The Doctrine of Jus Necessitatis:

The term “necessity” is defined in Black law’s dictionary as

a controlling force; irresistible compulsion; a power or impulse so
great that it admits no choice of conduct. This doctrine is based
on ‘Salus populi suprema lex esto’ which means that the welfare of
people must be supreme.
The doctrine of the jus necessitatis recognizes that the law has to be
broken to achieve a greater good. According to doctrine the violation
of a law may be excused by necessity. Defence of necessity applied,
when a person in order to prevent a greater harm to any person or
property from taking place, commits a crime or a criminal act during
an emergency situation, wherein accused can escape criminal
liability because his/her act was justified as he/she had the intention
to prevent a situation which would cause a greater harm as
compared to the criminal act committed by him or her. This is not a
rule of general application in international law, but it may be applied
in some exceptional cases for reasons of equity. This maxim may be
invoked for no better reason than as a cynical excuse for departing
from one’s legal obligations. The illustration of Section 19 explains
how the Doctrine of Jus Necessitatis works. It is to be noted that
although section 19 does not specifically refer to greater evil or
lesser evil, it in effect deals with the case of the lesser evil.

Examples:

o Fire is spreading and to prevent the spreading of fire further, if

someone pulls down the hut or house, then he has not
committed a crime.
o If a small child is locked in a house, if someone break open the
door to rescue the child has not committed a crime.
o If A attacks against the person or property of B. B can kill A to
save his life or property, B has not committed a crime. (Right
of private defence, Sections 96 – 106)
o A tries to commit rape against B. B to save herself kills A. C has
not committed a crime.
o A and B drowning in sea catch hold of plank which can support
only one person. Stronger among the two throws out the
weaker and catch hold of the plank. The weaker person dies of
 drowning in the sea. The stronger person cannot be convicted
for a crime because of self-preservation.

Section 19 BNS:

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.

Explanation:

It is question of fact in such a case whether the harm to be

prevented or avoided was of such a nature and so imminent as to
justify or excuse the risk of doing the act with the knowledge that it
was likely to cause harm.

Illustrations:

(a) A, the captain of a steam vessel, suddenly and without any fault
or negligence on his part, finds himself in such a position that,
before he can stop his vessel, he must inevitably run down to boat
B, with twenty or thirty passengers on board, unless he changes the
course of his vessel, and that, by changing his course, he must
incur risk of running down a boat C with only two passengers on
board, which he may possibly clear. Here, if A alters his course
without any intention to run down the boat C and in good faith for
the purpose of avoiding the danger to the passengers in the boat B,
he is not guilty of an offence, though he may run down the boat C
by doing an act which he knew was likely to cause that effect, if it
be found as a matter of fact that the danger which he intended to
avoid was such as to excuse him in incurring the risk of running
down the boat C.

(b) A, in a great fire, pulls down houses in order to prevent the

conflagration from spreading. He does this with the intention in
good faith of saving human life or property. Here, if it be found that
the harm to be prevented was of such a nature and so imminent as
to excuse A’s act. A is not guilty of the offence.

Note:

This Section corresponds to Section 81 of the Indian Penal Code,

1872

Ingredients of Section 19 BNS:

o the act must have been done under good faith;

o there must not be mens rea (absence of mens rea).
o there is no other choice.

It embodies the principle that where the accused chooses lesser evil,
in order to avert the bigger, then he is immune. An act of the
accused in order to prevent greater harm without any criminal
intention falls under the ambit of necessity. Such an act must be
done in good faith in order to prevent the happening of greater
harm. The question of motive is of no importance, where positive
evidence does exist in the favour of the accused.

The genesis of this principle emanates from two maxims: quod

necessitas non habet legum- necessity knows no law and necessitas
vincit legum, necessity overcomes the law. This doctrine of necessity
recognises that the law has to be broken to achieve a greater good.
This section mandates act to be done in good faith and without any
criminal intention i.e., there should be absence of Mens Rea.

Killing a person in self-defence may appear to be an example of

necessity. While self-defence may overlap necessity, the two are not
the same. Private defence operates only against aggressors.
Generally, the aggressors are wrongdoers, while the person against
whom action is taken by necessity, may not be an aggressor or
wrongdoer. Unlike necessity, private defence involves no balancing
of values.

Case Laws:
In Gopal Naidu v. Emperor (1923) ILR 46 Bom 605 case, a
drunken man was carrying a revolver in his hand was disarmed and
put under restraint by the police officers for the offence of public
nuisance. Though the offence of public nuisance was a non-
cognizable offence without a warrant, it was held that they can
plead justification under this defence. In this case, the Madras High
Court held that they could plead justifications under this section.
Further added, the person or property to be protected may be the
person or property of the accused himself or of others.

In R v. Dudley and Stephens, 14 Q.B.D. 273 (1884) case, three

seamen and a minor cabin boy were the crew of an English vessel.
Due to the shipwreck, the three seamen and the boy escaped and
were put into an open boat. Dudley suggested sacrificing the minor
boy as he was too weak to which Brook refused. On the 20th day,
when they had no food for eight days and no water for five days,
Dudley and Stephens without the consent of Brooks killed the boy as
he was close to death and had no family and fed on the flesh and
blood for four days to survive. On the fourth day, they were picked
up by a passing vessel and subsequently they were prosecuted for
the offence of murder of the boy. The accused pleaded the defence
of necessity to get exemption from the criminal liability. The Privy
Council held they are guilty of murder and convicted them on the
ground of, self-preservation is not an absolute necessity, no man has
a right to take another’s life to preserve his own, and there is no
necessity that justifies homicide.

In Dhania daji v. Emperor (1868) 5 BHC (CrC) 59 case, the

accused was a toddy tapper. He observed that his toddy was being
stolen from the trees regularly. To prevent it, he poisoned today in
some of the trees. He sold toddy from other trees. However, by
mistake, the poisoned toddy was mixed with other toddy, and some
of the consumers were injured and one of them died. He was
prosecuted. During the trial, he took the defence of Section 81 IPC
(S. 19 BNS). The Privy Council did not accept his contention of jus
necessitates, as mixing poison was done by the accused
intentionally and also with a knowledge that it would cause grave
danger to the people. The accused was convicted and punished
under Section 328 IPC (S. 123 BNS).
 In United States v. Holmes, 18 U.S. 5 Wheat. 412 412
(1820) case, the accused was a member of the crew of a boat after
a shipwreck. Fearing that the boat would sink, he under the order of
the mate threw 16 male passengers overboard. The accused though
not convicted for murder, was convicted for manslaughter and
sentenced to six months imprisonment with hard labour.

Killing a person in self-defence may appear to be an example of

necessity. While self-defence may overlap necessity, the two are not
the same. Private defence operates only against aggressors.
Generally, the aggressors are wrongdoers, while the person against
whom action is taken by necessity, may not be an aggressor or
wrongdoer. Unlike necessity, private defence involves no balancing
of values.

Distinguishing between Section 18 and Section 19 BNS:

Section 18 Section 19

Section 18 deals with accidents Section 19 deals with inevitable accidents.

Section 18 stipulates the absence of criminal

Section 19 stipulates the absence of criminal intention alone.
intention as well as knowledge.

Section 18 contemplates a situation where Section 19 clearly contemplates a situation where the accused has
the accused has no intention and knowledge knowledge that he is likely to cause harm, but is specifically
that he is likely to cause harm stipulated that such knowledge shall not be held against him.

Conclusion:

A person committing an offence under the circumstances and

exceptions mentioned in Chapter IV is excused from criminal liability
and punishment shall not be imposed upon him in such case.
Section 19 of BNS is based on the doctrine of jus necessitatis or
docrine og necessity.

In conclusion, the Doctrine of Jus Necessitatis remains a complex

and controversial principle within international law. It operates on
the premise that certain actions, which would typically be prohibited
by legal norms, can be justified when undertaken out of necessity to
safeguard national interests, security, or survival. The doctrine has
historical roots in state practice, particularly in situations involving
self-defense or the protection of territorial integrity. It serves as a
legal and moral exception in times of emergency, allowing states to
act outside the bounds of standard legal frameworks when faced
with imminent threats or crises.

However, the application of Jus Necessitatis is fraught with

challenges and risks. The flexibility inherent in the doctrine can lead
to subjective interpretations, where the justification of necessity
might be used as a pretext for actions that exceed what is truly
needed. This raises concerns about potential abuses of power, as
the threshold for invoking necessity can be difficult to define and
regulate. Furthermore, the principle does not provide a clear-cut
solution to balancing the competing interests of national survival
and international legal obligations.

Despite these challenges, Jus Necessitatis continues to play a crucial

role in shaping the conduct of states in exceptional circumstances.
Its application highlights the tension between upholding legal norms
and responding to urgent, real-world situations where strict
adherence to law could result in greater harm. To prevent misuse,
the doctrine requires careful scrutiny, ensuring that any action taken
under its justification is proportionate, limited in scope, and
consistent with broader international legal principles, such as human
rights and the protection of peace. As global challenges evolve, the
relevance and boundaries of Jus Necessitatis will likely continue to
be debated, emphasizing the need for a balanced, nuanced
approach.
Defence of Intoxication or Law of Intoxication (Ss.
23 and 24 BNS)
Law and You > Criminal Laws > Bharatiya Nyaya Sanhita,
2023 > Chapter III: General Exceptions > Defence of Intoxication or Law of
Intoxication (Ss. 23 and 24 BNS)

The term Intoxication means the person is incapable of doing things

mentally as well as physically because of the consumption of alcohol
or other narcotic substance. It is commonly known as a condition of
addiction. In this drunken state, the person cannot understand
whether what they are doing is right or wrong, and they cannot
understand the consequences of their actions. He has no control
over his actions or reacts in any particular way. The Indian Law on
Intoxication (drunkenness) is contained in Sections 23 and 24 of the
Bharatiya Nyaya Sanhita, 2023. It is voluntary intoxication having
same effect as insanity which exempts the accused from the
criminal liability and not voluntary drunkenness. Section 23 BNS
which deals with involuntary intoxication, affords the same
protection as Section 22 BNS affords to a person of unsound
mind. A person voluntarily intoxicated will be deemed to have the
same knowledge as the would have if he had not been intoxicated.
he can only be punished on – The basis of knowledge of any
particular intention. Involuntary drunkenness is the defence but
voluntary drunkenness is no defence for the commission of a crime.
Section 23 BNS deals with offences committed under the
influence of drugs or alcohol which is caused by fraud or
coercion. Section 24 BNS deals with intoxication which is
self-induced.

Section 23 BNS:

Act of a Person Incapable of Judgment by Reason of Intoxica-

tion Caused Against His Will:

Nothing is an offence which is done by a person who, at the time of

doing it, is, by reason of intoxication, incapable of knowing the
nature of the act, or that he is doing what is either wrong, or
contrary to law; provided that the thing which intoxicated him was
administered to him without his knowledge or against his will.

Note:

This Section corresponds to Section 85 of the Indian Penal Code,

1872

Ingredients of Section 23 BNS:

o At the time of committing the offence, the accused was

intoxicated.
o Intoxication should be without his knowledge or against his
will.

o Because of the intoxication, he was not capable of knowing the

nature of the act at the time of committing the offence. Or
o Because of the intoxication, he was not capable of knowing
that he was doing something either wrong or contrary to law at
the time of committing the offence.

Notes:

o Section 23 BNS can be called Law of Involuntary Intoxication.

o If the criminal was drunk against his will or without his
knowledge then he can take a defence under section23 BNS,
that the criminal was intoxicated without his knowledge or with
his will or consent, on the contrary, it must be shown that he
was administered or given.
o Such a person could not know the nature of the act or what he
was doing was wrong or illegal because of the sickness when
the crime was committed: one person had the crime suppose
you know or understand it when it’s done, it shouldn’t be done,
or it’s against the law, and he’s still doing it. In this case, he
cannot protect himself and will be held liable for the crime he
committed.
o The disability must be the result of addiction to a person

Case Laws:

In Chet Ram v. State, 1971 CrLJ 1246 case, the Court held that
voluntary drunkenness is no excuse for the commission of a crime.
In Bablu alias Mubarik Hussain V. State of Rajasthan, AIR
2007 SC 697 case, the Supreme Court examined Section 85 of IPC
(S. 23 BNS) and held that evidence of drunkenness, the evidence
which proves that the accused is incapable of forming the wrongful
intent has also been considered along with the other facts, and then
it should be proved of the accused person has the intention to
commit crime. These sections do not protect someone who
voluntarily consumed intoxicants as the person loses his mental
ability because of his consensual act i.e., by self-induced
intoxication.

In Director of Public Prosecutions v. Beard,(1920) AC

479 case, the accused ravished a girl of 13 years of age and
infurtherance of the act of rape, placed his hand upon her mouth
and his thumb upon her throat, thereby causing death by
suffocation. The sole defence was a plea of drunkenness. It was
confined that drunkenness was no defence unless it could be set
that the accused at the time of committing rape was so drunk that
he was incapable of forming the intent to commit it inasmuch as the
death resulted from a succession of acts, the rape and the act of
violence causing suffocation, which could not be regarded
independently of each other and that the accused was guilty of
murder.

Section 24 BNS:

Offence Requiring a Particular Intent or Knowledge

Committed by One Who is Intoxicated:

In cases where an act done is not an offence unless done with a

particular knowledge or intent, a person who does the act in a state
of intoxication shall be liable to be dealt with as if he had the same
knowledge as he would have had if he had not been intoxicated,
unless the thing which intoxicated him was administered to him
without his knowledge or against his will.

Note:

This Section corresponds to Section 86 of the Indian Penal Code,

1872
Ingredients of S. 24 BNS:

This section clarify something regarding presumption. There may be

cases in which a particular knowledge is an ingredient, and there
may be other cases in which a particular intent is an ingredient. In
case of voluntary intoxication, Knowledge is to be presumed in the
same manner as if there was no intoxication but there is no such
presumption with regard to intention.

Notes:

o Section 24 can be called Law of Voluntary Intoxication.

o Section 24 includes the term mens rea (guilty mind) because in
this section intention or knowledge is always there for
committing any crime.
o If a person commits any crime or acts in the state of
intoxication then that action must be an offence because it is
presumed that the defendant knows about the crime unless
the person proves that he was involuntarily drunk.

Case Laws:

In Jethu ram vs. state of MP, AIR 1960 MP 242 case, where
accused drank liquor at the persuasion of his father to alleviate his
pain, it cannot be said that administration of liquor to him was
against his will and therefore, he could not claim any benefit under
section 85 (S. 23 BNS). “Will” is the faculty of our mind which guides
or controls our actions. So where the mind goes with the act, it can
be said that a person had acted in accordance with his will.

In Basdev vs. State of Pepsu, 1956 SCR 363 case, where

Basdev (retired military personnel) and a boy (aged 15 years) had
gone to attend a wedding. At there, Basdev boozed quite a lot and
he became very drunk and intoxicated. However, the evidence
showed that although at times he staggered and was incoherent in
his talk, he was still capable of moving himself independently and
talking coherently as well. He asked the boy to step aside a little so
that he may occupy a convenient seat. The boy refused. On that
Basdev whipped out a pistol and shot the boy in the abdomen which
proved fatal. It was also in evidence that after shooting the boy,
Basdev had made attempt to get away and when he was caught
hold off by the witnesses, he had requested them to be forgiven.
There was also no evidence that when he was taken to the police
station, he had to be specially supported. Keeping all these facts in
view, the court held that he was not so much under the influence of
the drink that his mind was so obscured by the drink that there was
incapacity to him to form the required intention. The court observed
that so far as knowledge is concerned, we must attribute to the
intoxicated man the same knowledge as if he was quite sober. But
so far as intent or intention is concerned, we must gather it from
attending circumstances of the case paying due regard to the
degree of intoxication.

The court laid down some important propositions with regard to the
effect of voluntary intoxication on criminal liability:-

o The absence of understanding of the nature and consequence

of an act, whether produced by drunkenness or otherwise, is a
defence to the crime charged.
o Drunkenness is ordinarily neither a defence nor an excuse for
crime.
o If due to excessive drunkenness actual insanity supervenes, it
furnishes a complete defence to a criminal charge.
o However, there may be cases falling short of insanity. In such
cases and when the crime is such that the intention of the
party committing it is one of its constituent elements, there
should be evidence to show that he had become “incapable of
forming the specific intent essential to constitute the crime.”
o Where the evidence does not prove such incapacity and
merely establishes that the mind of the accused was so
affected by drink that he more readily gave way to some
violent passion, that would not rebut the presumption that
accused intended the natural consequences of his acts

In the present case, the accused had not gone so deep in drinking,
and from the fact it could be found that he knew what he was about
to do

Distinguishing Between Section 23 and Section 24 BNS:

Section 23 BNS Section 24 BNS

 According to Section 24 BNS, in cases where
According to Section 23 BNS, nothing is an an act done is not an offence unless done
offence which is done by a person who, at the with a particular knowledge or intent, a
time of doing it, is, by reason of intoxication, person who does the act in a state of
incapable of knowing the nature of the act, or intoxication shall be liable to be dealt with as
that he is doing what is either wrong, or if he had the same knowledge as he would
contrary to law; provided that the thing which have had if he had not been intoxicated,
intoxicated him was administered to him unless the thing which intoxicated him was
without his knowledge or against his will. administered to him without his knowledge or
against his will.

Section 23 BNs covers involuntary intoxication Section 24 BNS covers voluntary intoxication.

If the person is intoxicated against his will, Under tis section a person is liable for the
there shall be no liability as stated in section offences which require particular intent or
23 BNS. knowledge, even if the person is intoxicated.

This section takes care of such offences and

If it is voluntary then only knowledge of the
states that if intoxication is involuntary,
offence on the part of the offender will be
neither knowledge nor intention in
presumed but not intention in committing it.
committing the offence will be presumed.

In State of Maharashtra v. Ashok Yashwant, 1987 CrLJ 1416

(Bom.) case, the Court held that the reading of sections 85 and
86 IPC (Ss. 23 and 24 BNS) together makes it clear that section 86
IPC (S. 24 BNS) is an exception to Section 85 (S. 23 BNS). The
sections show that when the intoxication is instigated voluntarily,
then done act is an offence even if the person is incapable of
knowing the nature of the act or the act was contrary to law or the
act was wrong. This section obviously covers all offences.

Conclusion:

The Indian Law on Intoxication (drunkenness) is contained in

Sections 23 and 24 BSA. It is voluntary intoxication having same
effect as insanity which exempts the accused from the criminal
liability and not voluntary drunkenness. Section 23 which deals with
involuntary intoxication, affords the same protection as Section 22
affords to a person of unsound mind. A person voluntarily
intoxicated will be deemed to have the same knowledge as the
would have if he had not been intoxicated.

Consent as Defence(Ss. 25 to 30 BNS)

Law and You > Criminal Laws > Bharatiya Nyaya Sanhita, 2023 > Chapter
III: General Exceptions > Consent as Defence (Ss. 25 to 30 BNS)

Consent means a person agrees to the act of another person after knowing the
consequences of the act. Concept of consent is based on the legal maxim volenti non
fit injuria which means harm caused with the consent cannot be considered as an
injury and it does not amount to an offence. Consent given by a person may either be
express or implied. Implied Consent can be inferred from one’s conduct /actions or
nature of the operation. Consent plays a very important role in determining the
criminal liability of a person. In the context of the Bharatiya Nyaya Sanhita, 2023
(BNS), consent is a crucial concept, particularly concerning various criminal offenses.
Consent refers to the voluntary agreement of an individual to engage in a particular act
or to permit something to occur. However, the BNS outlines certain provisions where
consent may not be considered as a defence or may be vitiated (rendered invalid).

Consent plays a very crucial role in establishing the liability in all criminal cases.
Whether to lessen the seriousness of an offence depends on consent. This defence is
that if a knowledgeable adult voluntarily agrees to a crime against himself and knows
that they have agreed, the harm resulting from the Act in this way as a result of the
consent is a criminal liability to the perpetrator

The word consent is however not separately defined under the Bharatiya Nyaya
Sanhita, 2023; there are some specific sections which talk about consent as an
exception under BNS. Section 25 of BNS saves the person from the criminal
liability on the ground of consent as a general exception. Ss. 26, 27, and 30 gives
immunity to those persons (doctors, philanthropist etc.) whose act(s) caused
harm to other person but that act was actually done for the benefit of that person
that means the harm caused to the person is unintentional. Section 28 BNS lays
down four situations under which the consent given by a person is not considered
as a valid consent. Section 29 BNS states the exclusion of those acts which are
offences independently of harm caused. Section 63 BNS also talks about some
other important and relevant aspects of consent like what forms a valid consent,
when sexual intercourse amounts to rape and under what circumstances an act
constitutes an offence despite of the fact that the other party has given his
consent for the same.

Types of Consent:
Consent can take various forms depending on the context in which it is given. The
different types of consent are as follows:

o Express Consent: This type of consent is explicitly stated either verbally or in

writing. It involves a clear and direct agreement to participate in a particular
activity or to allow something to happen.
o Implied Consent: Implied consent is inferred from a person’s actions or
conduct rather than being explicitly stated. It is understood based on the
circumstances and the reasonable expectations of the parties involved. For
example, a patient extending their arm to allow a doctor to take their blood
pressure implies consent.
o Informed Consent: Informed consent is given when an individual has been
provided with all relevant information about a particular situation or activity,
including its risks, benefits, alternatives, and consequences. Informed consent
is often required in medical procedures, research studies, and certain legal
agreements.
o Consent by Coercion: This type of consent occurs when someone agrees to
something under duress or coercion, such as threats, intimidation, or
manipulation. Consent obtained through coercion is not considered genuine or
valid in many jurisdictions.
o Consent by Deception (Fraud): Consent obtained through deception or fraud
is not considered genuine because the person providing consent is unaware of
the true nature of the situation. For example, if someone misrepresents their
identity or intentions to obtain consent for a particular action, it may be deemed
invalid.
o Consent by Incapacitation: Consent given by a person who is not capable of
making rational decisions due to intoxication, mental incapacity, or other
factors may not be legally valid. Individuals must have the capacity to
understand the nature and consequences of their actions in order to provide
valid consent.
o Revocable Consent: Consent that can be withdrawn or revoked at any time is
known as revocable consent. Even if consent was initially given, the individual
has the right to change their mind and withdraw consent at any point during the
activity or interaction.

Understanding the different types of consent is important in various legal, medical,

and interpersonal contexts to ensure that individuals’ rights and autonomy are
respected and protected.

Conditions Needed to Plead the Defence of Consent:

Section 25, 26, 27 and 28 of the Code deals with conditions that are necessary to plead
consent as a defence. These conditions are enumerated as follows:

1. A person who has consented to the risk

 2. The person must be at least 12 years old. In such a case, the consent of the legal
guardian or its responsible person must be obtained.
3. Consent can be given without fear or misunderstanding of the facts.
4. This consent must be given explicitly or implicitly.
5. Consent is not intended to cause death or serious injury.

When consent is not a defence:

Section 28 BNS:

Consent Known to be Given under Fear or Misconception

A consent is not such a consent as is intended by any section of this Sanhita,—

(a) if the consent is given by a person under fear of injury, or under a misconception
of fact, and if the person doing the act knows, or has reason to believe, that the
consent was given in consequence of such fear or misconception; or

(b) if the consent is given by a person who, from unsoundness of mind, or

intoxication, is unable to understand the nature and consequence of that to which he
gives his consent; or

(c) unless the contrary appears from the context, if the consent is given by a person
who is under twelve years of age.

Section 28 BNS, defines what does not constitute a valid consent. Similarly, Section
14 of Indian contract act lays down some grounds that forms the basis of a free
consent. A consent is not considered as a valid consent if;

1. Such consent is given by the person under fear of some injury. If consent is
obtained from an individual due to fear of injury and the person performing the
act knows or has reason to believe that the consent was given because of such
fear, the consent is not valid.
2. The consent is given under the misconception of some facts and the person
obtaining the consent is aware of the same or has a reason to believe the same.
If consent is obtained from an individual under a misconception of fact, and the
person performing the act knows or has reason to believe that the consent was
given because of such misconception, the consent is not valid.
3. The consent is given by a person who is not of sound mind. Consent given by a
person who, due to unsoundness of mind and is unable to understand the nature
and consequence of the act to which they are consenting is not considered
valid.
 4. The consent is given by a child who is below the age of 12 years. Consent
given by a person who is under twelve years of age is not considered valid
unless the context indicates otherwise.
5. The consent is given by an intoxicated person. Consent given by a person who,
due to intoxication, is unable to understand the nature and consequence of the
act to which they are consenting is not considered valid.

Section 28 BNS aims to protect individuals from exploitation, coercion, or situations

where they are unable to give genuine consent due to fear, misconception, mental
incapacity, or age. It is crucial in various legal contexts, including criminal law, where
consent plays a significant role in determining the legality of certain actions. Thus,
Section28 BNS is crucial in understanding the circumstances under which consent
may be deemed invalid. It helps safeguard individuals who may be vulnerable or
unable to provide genuine consent due to various factors.

Consent Given for Any Harm Other than Death or Grievous Hurt:

Section 25 BNS:

Act not Intended and not Known to be Likely to Cause Death or Grievous Hurt,
Done by Consent:

Nothing which is not intended to cause death, or grievous hurt, and which is not
known by the doer to be likely to cause death or grievous hurt, is an offence by reason
of any harm which it may cause, or be intended by the doer to cause, to any person,
above eighteen years of age, who has given consent, whether express or implied, to
suffer that harm; or by reason of any harm which it may be known by the doer to be
likely to cause to any such person who has consented to take the risk of that harm.

Illustration:

A and Z agree to fence with each other for amusement. This agreement implies the
consent of each to suffer any harm which, in the course of such fencing, may be
caused without foul play; and if A, while playing fairly, hurts Z, A commits no
offence.

Ingredients of Section 25 BNS:

o The act done must be without any intention and knowledge to cause death or
grievous hurt;
o The act must be done to a person who has attained the age of majority i.e. who
is above 18 years of age;
o The person must have given his consent;
o It may be express or implied; and
 o The consent given should be for the purpose of suffering that harm

Section 25 BNS refers to the consented acts which did not intent to cause death or
grievous hurt to any person. It states that nothing is an offence just by the reason of
harm which might be caused, if it is not intended and is not known by the person to
cause or likely to cause death or grievous hurt to any person who has attained the age
of majority and who has consented to suffer the harm or by the reason of any harm
which might be known by doer to likely cause to such a person who has given his
consent to take the risk of that harm; irrespective of the fact whether the consent was
express or implied.

The defence of consent is based on two submissions:

o Every person is the best judge for itself.

o No man will give consent for what he thinks will be hurtful to him.

Section 25 BNS is often invoked in cases where individuals engage in activities that
carry inherent risks, such as sports or adventure activities, and where participants
willingly consent to those risks. It aims to balance the principles of personal autonomy
and individual responsibility while providing protection from criminal liability in
situations where harm occurs with consent and without malicious intent.

In Tunda v. Rex, AIR 1950 Allah 95 case, where two of the friends participated in
wrestling match and one of them suffered injuries and died. Later a suit was instituted
against the other person under section 304 A of IPC (S. 106(1) BNS). In this case high
court upheld that both the parties agreed for wrestling match and themselves
consented to suffer injuries. since both the parties played a fair game and there was no
foul play, so it was held that the case falls under section 87 of IPC (S. 25 BNS) and
thus the other party was freed from the criminal liability.

In Dasrath Paswan v. State Of Bihar, AIR 1958 PAT 190 case, where the accused
has failed at an examination for three consecutive years. By disappointing these
continuous failures he decided to end his life. He discussed his decision with his wife
who was a literate woman of 19 years of age. His wife said to kill her first and then
kill himself. Accordingly, the accused killed his wife first and was arrested before he
could kill himself. It was held that the wife had not given her consent under the fear of
injury or misconception of fact. Hence, the accused would not be liable for murder.

Act Done in Good Faith for the Benefit of Another Person with Their Consent:

Section 26 BNS:

Act not Intended to Cause Death, Done by Consent in Good Faith for Person’s
Benefit
Nothing, which is not intended to cause death, is an offence by reason of any harm
which it may cause, or be intended by the doer to cause, or be known by the doer to be
likely to cause, to any person for whose benefit it is done in good faith, and who has
given a consent, whether express or implied, to suffer that harm, or to take the risk of
that harm.

Illustration:

A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who
suffers under the painful complaint, but not intending to cause Z’s death, and
intending, in good faith, Z’s benefit, performs that operation on Z, with Z’s consent. A
has committed no offence.

Ingredients of Section 26 BNS:

1. The act done must be without any intention to cause death of a person;
2. Act must be done in good faith;
3. Act must be done for benefit of the person;
4. The person must have consented to suffer the harm which might be caused as a
result of that act

Section 26 BNS deals with those acts which are done in good faith for the benefit of a
person for which the person consents to take the risk of the harm that might be caused
are not offences. It states that nothing is an offence just by the reason of harm which
might be caused, if it is not intended and is not known by the doer to cause or likely to
cause death of any person for whose benefit that act was done, in good faith and who
has consented to suffer the harm irrespective of the fact whether the consent was
express or implied.

Section 26 BNS is often invoked in medical contexts, where certain medical

procedures or treatments may carry risks of harm but are performed for the benefit of
the patient with their consent. It provides legal protection to healthcare professionals
and others who act in good faith to benefit others, even if harm results from their
actions.

Under section 26 BNS, the wrong-doer is protected even for an act causing grievous
hurt but not death. In cases where a person gives consent with his will to take the risk
of an operation, and the operation becomes fatal, the doctor who has done the
operation cannot be punished even if it causes that person’s death.

In Samira Kohli v. Dr Prabha Manchanda, (2008) 2SCC 1 case, the Supreme

Court stated that consent in the context of a doctor-patient relationship is defined as
grant of permission by the patient for an act to be carried out by the doctor, such as a
diagnostic, surgical or therapeutic procedure. Consent can be implied in some
circumstances from the action of the patient.
This order gives the principles of consent with regard to medical treatment and
therapeutic investigations and not for medical research/clinical trials as follows:

1. A doctor has to seek and secure the consent of the patient before commencing a
treatment. The consent so obtained should be real and valid; the consent should
be voluntary; and the consent should be on the basis of adequate information
concerning the nature of the treatment procedure, so that she/he knows what
she/he is consenting to.
2. A balance should be maintained between the need for disclosing necessary and
adequate information and at the same time avoid the possibility of the patient
being deterred from agreeing to a necessary treatment or offering to undergo an
unnecessary treatment.
3. Consent given only for a diagnostic procedure cannot be considered as consent
for treatment. Consent given for a specific treatment procedure is not valid for
some other treatment or procedure.
4. There can be a common consent for diagnostic and operative procedures where
they are contemplated. There can also be a common consent for a particular
surgical procedure and an additional or further procedure that may become
necessary during the course of surgery.
5. The nature and extent of information to be furnished by the doctor to the
patient.

In Sukaroo Kobiraj v. The Empress, (1887) ILR 14 CAL 566 case, the appellant, a
qualified doctor performed an operation of internal piles by cutting the vital part with
an ordinary knife. The patient died because of copious bleeding. He was prosecuted
for causing death by rash and negligent act. The Court held him liable as he did not act
in good faith. Further the court also said that it was a negligent act done on part of the
doctor and thus he is not entitled to seek protection under section 26 BNS.

In Dr R.P. Dhanda v. Bhrelal, 1987 Cri LJ 1316 MP case, criminal proceedings

were instituted against the doctor who performed a surgery for cataract which resulted
in the loss of his eyesight. The doctor took the defence under section 26 BNS. High
Court while delivering the judgment upheld that since the doctor took the patient’s
consent and did the surgery in good faith with proper care and caution as per the
Indian Medical system thus, he is not liable for the harm caused to the patient.

Act Done with the Consent of a Guardian for the Benefit of a Child or a Person
of Unsound Mind:

Section 27 BNS:

Act Done in Good Faith for Benefit of Child or Person of Unsound Mind, by, or
by Consent of Guardian:
Nothing which is done in good faith for the benefit of a person under twelve years of
age, or person of unsound mind, by, or by consent, either express or implied, of the
guardian or other person having lawful charge of that person, is an offence by reason
of any harm which it may cause, or be intended by the doer to cause or be known by
the doer to be likely to cause to that person: Provided that this exception shall not
extend to—

(a) the intentional causing of death, or to the attempting to cause death;

(b) the doing of anything which the person doing it knows to be likely to cause death,
for any purpose other than the preventing of death or grievous hurt, or the curing of
any grievous disease or infirmity;

(c) the voluntary causing of grievous hurt, or to the attempting to cause grievous hurt,
unless it be for the purpose of preventing death or grievous hurt, or the curing of any
grievous disease or infirmity;

(d) the abetment of any offence, to the committing of which offence it would not
extend.

Illustration:

A, in good faith, for his child’s benefit without his child’s consent, has his child cut
for the stone by a surgeon knowing it to be likely that the operation will cause the
child’s death, but not intending to cause the child’s death. A is within the exception, in
as much as his object was the cure of the child.

Ingredients of Section 27 BNS:

1. Act done must be for the benefit of a person who is of unsound mind or a child
under 12 years of age.
2. Such an act must be done in good faith.
3. Act must be either done by the guardian or by the guardian’s consent or such
other person who has lawful charge of that person.
4. The consent may be either express or implied.

Section 27 BNS deals with those acts which are done for the benefit of a child or
insane person in good faith either by the guardian himself or by some other person
with his consent. It states that nothing amounts to an offence just by the reason of any
harm which might be caused or intended and known by the doer to be caused or likely
to cause to that person, if the act is done with the consent (either express or implied)
of his guardian or any other person having the lawful charge, in good faith for the
benefit of that person who is below the age of twelve years or for the person who is of
unsound mind.
Following four provisos have been attached to the Section to make sure some
additional safeguards other than the fact that the doer should act in ‘good faith’:

1. Act shall not extend to intentional causing of death, an attempt to cause death.
For instance, A in good faith intentionally kills his son, who is suffering from
incurable heart disease just to give him a peaceful death. A would not be
protected under this Section.
2. This provision will not apply in the situations wherein the person was aware or
had a knowledge of his act which is likely to cause death unless it was done for
the prevention of death or grievous hurt, or the curing of any grievous disease
or infirmity. For instance, A in good faith, for his daughter’s benefit without
her consent, has consented for transplantation, knowing it to be likely to cause
death in the process, but not intended to cause her death. A will be given the
defence of section 27 BNS, since his objective was to cure her daughter.
3. This provision will not apply in the situations wherein the person voluntarily
causes grievous hurt or attempted to cause grievous hurt unless it was done for
prevention of death or grievous hurt, or the curing of any grievous disease or
infirmity. For instance, A in good faith, for his child’s pecuniary benefit,
emasculates him. Here A would not be protected under this provision as A has
caused grievous hurt to his child for a purpose, other than preventing death or
grievous hurt.
4. This provision will not extend to the abetment of any offence, which is not
covered under this provision. For instance, A, in good faith, abets B, his friend,
to sleep with his daughter Y, who is under 12 years of age for pecuniary
benefits. Neither A nor B would be given protection under this section.

Section 27 BNS deals with acts done in good faith for the benefit of a person without
that person’s consent in certain emergency situations.

In K. A. Abdul Vahid v. State Of Kerala, (2005) Cr. L.J. 2054 Ker case the
question that was raised before the Kerala High Court was the case where a
schoolteacher hits the student with a cane who disobeyed the rules will the teacher be
prosecuted for the same under Indian Penal Code (BNS). The court in this case said
that the scenario of a schoolteacher hitting a child for disobeying the rules falls under
section 89 of IPC (S. 27 BNS). Thus, the teacher will be given protection under
section 86 of Indian Penal Code (S. 26 BNS). The court justified the same by saying
when a child is admitted to the school the guardian gives an implied consent to the
school authorities for any such act. Further the court stated that the teacher was acting
in good faith and hence the teacher will not be prosecuted under IPC (BNS).

Section 27 BNS is particularly relevant in emergency situations where immediate

action is required to protect the life or well-being of a child or a person who is unable
to give consent due to unsoundness of mind. It aims to balance the necessity of prompt
intervention with the protection of vulnerable individuals.
Act Done in Good Faith for Benefit of a Person without Consent:

Section 30 BNS:

Act Done in Good Faith for Benefit of a Person Without Consent:

Nothing is an offence by reason of any harm which it may cause to a person for whose
benefit it is done in good faith, even without that person’s consent, if the
circumstances are such that it is impossible for that person to signify consent, or if that
person is incapable of giving consent, and has no guardian or other person in lawful
charge of him from whom it is possible to obtain consent in time for the thing to be
done with benefit:

Provided that this exception shall not extend to—

(a) the intentional causing of death, or the attempting to cause death;

(b) the doing of anything which the person doing it knows to be likely to cause death,
for any purpose other than the preventing of death or grievous hurt, or the curing of
any grievous disease or infirmity;

(c) the voluntary causing of hurt, or to the attempting to cause hurt, for any purpose
other than the preventing of death or hurt;

(d) the abetment of any offence, to the committing of which offence it would not
extend.

Illustrations:

(1) Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires to
be trepanned. A, not intending Z’s death, but in good faith, for Z’s benefit, performs
the trepan before Z recovers his power of judging for himself. A has committed no
offence.

(2) Z is carried off by a tiger. A fires at the tiger knowing it to be likely that the shot
may kill Z, but not intending to kill Z, and in good faith intending Z’s benefit. A’s
bullet gives Z a mortal wound. A has committed no offence.

(3) A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an
operation be immediately performed. There is no time to apply to the child’s guardian.
A performs the operation in spite of the entreaties of the child, intending, in good
faith, the child’s benefit. A has committed no offence.
(4) A is in a house which is on fire, with Z, a child. People below hold out a blanket.
A drops the child from the house top, knowing it to be likely that the fall may kill the
child, but not intending to kill the child, and intending, in good faith, the child’s
benefit. Here, even if the child is killed by the fall, A has committed no offence.

Explanation:

Mere pecuniary benefit is not benefit within the meaning of sections 26, 27 and this
section.

Section 30 BNS reflects the legal principle that certain actions undertaken for the
public good or the benefit of others, especially in emergency situations or where
obtaining consent is impossible, should be protected from criminal liability as long as
they are performed in good faith and with the intent to benefit the person involved.

Section 30 BNS lays down that any act which is done without the consent then the
performance of that particular act is in good faith or for the well-being of the person
and that the person for whom such act is been done is either unable to understand or
incapable to give consent or the guardian cannot take the consent of such person in
question. Section 30 BNS is subjected to the following four provisions-

1. First provision states that if any person intentionally causes or attempts to cause
death of a person that person will not be given protection under this section.
2. As per the second provision if any person does any act of which he has the
knowledge that it will likely cause death for any other purpose other than
curing some grievous disease or infirmity or the prevention of death or
grievous hurt then in that case this section will not protect that person.
3. The third provision says that if any person voluntarily causes or attempts to
cause grievous hurt to any other person then that person will not be given
protection under this section, unless the purpose of that person was to cure
some grievous disease or infirmity or to prevent death or hurt.
4. The fourth provision says this section shall not be applicable to the abetment of
any offence, to the committing of which offence this section will not extend.

Section 30 BNS provides legal protection to individuals who, in good faith and for the
benefit of another person, perform acts that may cause harm, even without the explicit
consent of the person benefited.

Example: A, is found unconscious due to a severe allergic reaction. Dr. B, a passer-by

who is a highly qualified doctor, notices that A is in anaphylactic shock and requires
immediate administration of epinephrine. He has an epinephrine injector with him.
Knowing that any delay in treatment could be fatal and that A is unable to consent as
he is unconscious, Dr. B administers the epinephrine shot in good faith for A’s
benefit. In this case, even though Dr. B acted without A’s consent, he has not
committed an offence under Section 92 IPC (S. 30 BNS), since his actions were done
in good faith for A’s benefit, during a situation where it was impossible for him to
consent and there was no time to seek consent from a guardian or lawful charge.

In Queen v. Poonai Fattemah, 12 W.R. Crim. Rul. 7, case, where the accused,
professing to be a snake charmer, persuaded the deceased to allow himself to be bitten
by a poisonous snake under the impression of a belief that he possessed the powers to
protect him from the bite which he could not subsequently. It was held that the
deceased’s consent did not excuse the accused from criminal liability.

Act Done in Good Faith for Benefit of a Person without Consent:

Section 29 BNS:

Exclusion of Acts which are Offences Independently of Harm Caused:

The exceptions in sections 25, 26 and 27 do not extend to acts which are offences
independently of any harm which they may cause, or be intended to cause, or be
known to be likely to cause, to the person giving the consent, or on whose behalf the
consent is given.

Illustration:

Causing miscarriage (unless caused in good faith for the purpose of saving the life of
the woman) is an offence independently of any harm which it may cause or be
intended to cause to the woman. Therefore, it is not an offence “by reason of such
harm”; and the consent of the woman or of her guardian to the causing of such
miscarriage does not justify the act

Section 29 BNS addresses the situation where certain acts which would otherwise be
considered offenses are not punishable under specific circumstances. Section 29 BNS
talks about the cases where despite of the fact that the person consented for an act, it
amounts to an offence not because of the reason that harm is caused but because of the
reason that the act is illegal. This section also makes it clear that the exceptions given
under section 25, 26 and 27 of BNS is not applicable to acts which are considered as
offences independently of any harm which might be caused or intended to be caused
or is likely known to be caused to the person consenting for the same or on whose
behalf the consent is given. The acts done against public safety, public moral or any
act of public nuisance falls within the ambit of section 29 BNS and are the examples
of offences irrespective of the harm being caused.

Example: A professional boxer consents to a boxing match, understanding the risk of

bodily harm. If during the match, the opponent boxer lands a legal punch that
inadvertently causes serious injury, the opponent may not be held criminally
responsible due to the exceptions in sections 25, 26, and 27 concerning consent in
sports. However, if the same opponent boxer, outside of the sporting context,
intentionally hits the consenting boxer with the intention to cause grievous hurt, this
act would be an offence under the BNS, as the consent given for the sports match does
not extend to justify an assault with the intention to cause serious injury outside of the
match. Section 29 clarifies that consent is not a defence in this case because the act is
an offence independently of any harm consented to within the sporting event.

In Bishambher v. Roomal AIR 1951 All 500 case, where the complainant had
molested a girl. Two hundred people assembled to punish him. Three localities
intervened to find an alternate way. The crowd gathered in front of the Panchayat,
when the plaintiffs agreed to obey the Panchayat’s decision. Panchayat blackened his
face, tonsured his head and gave him a shoe-beating with the consent of the plaintif
(Bishambhar) made in writing by affixation of his signatures. Following this the
complainant made a complaint against the accused who were charged under sections
323 IPC (S. 115(2)) and 506 IPC (S. 351 (2/3) BNS) read with section 114 IPC (S. 54
BNS). Allowing the pleas of defence to the accused under sections 81 and 87 IPC (S.
19 and 25 BNS), the court observed, “It is true that if an act is unlawful in the sense of
being in itself a criminal act, it cannot be rendered lawful because the person to whose
detriment it is done consents to it; but there are many acts the commission of which in
the circumstances mentioned in the section 87 IPC (S. 25 BNS) may not amount to an
offence.”

Rape

Section 63 BNS:

Section 63 the Bharatiya Nyaya Sanhita, 2023 gives the definition of rape. This
section lays down certain grounds under which sexual intercourse between a man and
a woman amounts to rape.

Penetration is sufficient constitute sexual intercourse amounting to the offence of rape.

A man is said to commit rape if he has sexual intercourse with a women under any of
the circumstances mentioned below.

1. Against the will of the women

2. Without the consent of the women
3. If her consent is not a free consent, if it is influenced by fear of hurting her or
causing her death or of any other person in whom she is interested in.
4. When she gives her consent under the impression that he is another man to
whom she is or believes herself to be married lawfully, but the man is aware of
that he is not her husband.
5. When she gives her consent, but she was not in a sound state of mind or was
intoxicated while she was consenting for the same as a result of which she was
not able to understand the nature and consequences of the act of the same.
 6. With or without the consent of the women below the age of sixteen years of
age.

Exception- There is an exception to this, if a man has sexual intercourse with a

woman under any of the grounds mentioned above; provided that woman is his wife
and is not below the age of fifteen years in that case it does not amounts to the offence
of rape.

In Uday v. State of Karnataka (Crl.) No.393 of 2020 case the accused expressed his
love for the women (prosecutrix) and promised to marry her on some future date. The
women was aware of the fact that both of them belonged to different castes and their
families would oppose their marriage. Despite of this, the women started cohabiting
with the accused consciously and became pregnant. Later the accused delayed the
marriage, and the women lodged an FIR against him for the offence of rape. The court
in this case held that the victim had sufficient knowledge and intelligence to
understand the moral quality of the act which she consented to and that is the reason
she kept it a secret for long. Thus, taking into consideration all the facts the court
further said that she freely, voluntarily and consciously gave her consent for having
sexual intercourse with the accused and moreover her consent was not a result of any
misconception. Thus, the court stated that it cannot be said that the women consented
for the act under misconception of facts and thus the accused was not held liable for
the offence of rape.

Consent to a sexual intercourse, as in this case, cannot be based on a misunderstanding

of facts. The false promise of marriage is not a fact in the criminal sense.

In Rao Harnarain Singh Sheoji Singh v. State, AIR 1958 P H 123 case, where the
accused who was an advocate and a public prosecutor, forced his tenant to fulfil carnal
lust of Rao Harnarian and his friends by giving his wife. Thereafter the entire night the
men ravished her which immediately led to the death of his wife. The accused then
stated that it was a consented act and the victim and his husband gave their consent for
the same and hence they should not be held liable. The court stated that women gave
her consent to the accused for the sake of her husband’s safety as they threatened him
and hence it was not a free consent. The court further held all the parties liable for
committing the offence of rape.

In Jayanti Rani Panda vs State Of West Bengal, 1984 CRI LJ 1535 case, where the
accused frequently visited the house of the complainant. In the course of time, they
developed feelings for each other and he promised to marry her soon. Upon this
assurance, sexual relationships have developed between them. The complainant
became pregnant and pressured to perform marriage soon. When the complainant did
not agree to undergo abortion, the accused disowned his promise and stopped visiting
her house. A case of rape was filed against the accused. The Court held accused not
liable as section 90 IPC(S. 28 BNS) will not be applicable because the complainant
has given her free consent to series of sexual relations and also the prosecution is
unable to establish beyond a reasonable doubt that the accused begin sexual contacts
without the intention to marry her.

Conclusion:

In the context of the Bharatiya Nyaya Sanhita, 2023 (BNS), consent is a critical legal
concept that applies to various criminal offenses. Consent refers to the voluntary
agreement of an individual to engage in a particular act or to permit something to
occur. However, the BNS recognizes that there are situations where consent may not
be a valid defence or may be vitiated (rendered invalid) under certain circumstances.
Consent is vital in medical procedures and treatments. Performing medical procedures
without consent can lead to legal repercussions under the BNS. In contractual matters,
consent plays a significant role. Contracts made under duress or coercion may not be
considered legally binding. In various activities and interactions, consent is crucial.
Whether it’s participation in sports, entertainment, or other events, voluntary consent
is often required. The criminal liability of a person basically depends on the facts and
circumstances of a case and the liability varies from case to case. Although consent is
a valid ground of to seek protection against the criminal charges which are being
imposed on a person but it does not mean absolute submission to any harmful act.