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Synopsis
I. Introduction
II. Strict Construction of Penal Statutes
III. Two interpretations
IV. Where strict construction not applicable
V. "Mens Rea" in statutory offences
VI. Vicarious liability and statutory offences
I. Introduction
Penal statutes provide penalties for disobedience of laws making those who disobey liable to imprisonment,
fine, forfeiture or any other penalty as may be prescribed. Penal statutes do not mearly redress an individual
who has suffered, but they also enforce obedience to the commands of law by punishing the law breaker.
II. Strict Construction of Penal Statutes
A clear language is needed to create a crime, and a statute, enacting an offence of imposing penalty, is
strictly construed. [ Sham Sunder v. State of Haryana (1989)]
A statute providing for penal prosecution has to be construed strictly. However, this rule is not of universal
application which must necessarily be observed in every case. [Chief Inspector of Mines v. Karam Chand
Thapar (1962)]
Virtual Soft Systems Ltd. v. Commissioner of Income Tax (2007)
In this case it was observed that Section 271, Income Tax Act, 1961 is a penal provision and there are well
established principles for the interpretation of such a penal provision. Such a provision has to be construed
strictly and narrowly and not widely or with the object of advancing the object and intention of the
legislature. The statue creating the penalty is the first and the last consideration and must be construed within
the term and language of the particular statute.
Where an ambiguity exists and it has not been possible for the legislature to express itself clearly, the court
exhibits a preference for the liberty of the subject and resolves the doubt in favour of the subject. [ State of
W.B. v. Swapan Kumar Guha (1982)]
W.H. King v. Republic of India (1952)
In this case it was observed that a statute which creates an offence and imposes a penalty of fine and
imprisonment must be construed strictly in favour of the subject. The principle, that no person can be put in
peril of his life and liberty on an ambiguity, is well established.
To put it in other words, the rule of strict construction requires that the language of a statute should be so
construed that no case shall be held to fall within it which does not come within the reasonable interpretation
of the statute. [M.V. Joshi v. M.U. Shimpi (1961)]
Penal provisions should be construed in a manner which will suppress the mischief and advance the object
which the legislature had in view. [ Lalita Jalan v. Bombay Gas Co. ltd. (2003)]
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The provisions of a penal statute cannot be presumed to have retrospective operation. [Collector of Customs
v. East Punjab Traders (1998]
III. Two interpretations
When there are two possible constructions, the court must lean towards that construction which exempts the
subject from penalty, rather than the one which imposes penalty.
It is not competent to the court to stretch the meaning of an expression used by the legislature in order to
carry out the intention of the legislature. [Tolaram Relumal v. State of Bombay (1954)]
The effect of the rule of strict construction might almost be summed up in the remark that, where an
equivocal word or an amiguous sentence leaves a reasonable doubt of its meaning which the canons of
interpretation fail to solve, the benefit of the doubt should be given to the subject and against the legislature
which has failed to explain itself. [Maxwell on Interpretation of Statutes (11th Edn. ) 274-75]
IV. Where strict construction not applicable
Even though the settled rule is that penal statutes must be construed strictly, certain statutes must be
understood in their plain language and with reference to their meaning in common parlance. These are the
provisions relating to human behaviour and, therefore, cannot be given such a narrower meaning, which
would defeat the very purpose of the provisions of the act. Of course, these are penal provisions and must
receive strict construction. But, even the rule of strict construction requires that the provisions have to be
read in conjunction with other relevant provisions and scheme of the act. Further, the interpretation given
should be one which would avoid absurd results on the one hand and would further the object and cause of
the law, so enacted, on the other. [Ashok Kumar vs State of Haryana (2010)]
V. "Mens Rea" in statutory offences
Act and intention together make a crime. This has been expressed in the well known latin maxim, "actus non
facit reum nisi mens sit rea". Mens rea is a state of mind in a human being.
Crimes involving mens rea are of two types,
1. Crimes of basic intent
2. Crimes of specific intent
In crimes of basic intinct, mens rea does not go beyond the actus reus, while in crimes of specific intent,
mens rea goes beyond the contemplation of the prohibited act and foresight of its consequences and has a
purposive element. Mens rea refers to the criminality of the act. It may mean different things in relation to
different types of crimes. In general, actus reus and mens rea mean the conduct of the accused and his state
of mind at the time of committing the crime. The Parliament applies this principle to a statutory offence.
Where offences under the act are really acts prohibited by the police powers of the state in the interest of
public health and well-being and prohibition is backed by the sanction of a penalty, the offences are strictly
statutory offences and intention or mental state is irrelevant. Such acts prescribe a strict liability.
[Dineshchandra J. Gandhi v. State of Gujrat (1989)]. Thus in such acts establishing mens rea is not needed.
Murarilal Jhunjhunwala v. State of Bihar (1991)
In this case the licensing authority accepted renewal fee for licence for successive four years without passing
any order, granting or refusing the renewal of the licence. Prosecution was therefore quashed.
It has to be noted that the principal "no mens rea no crime" has no application in economic crimes. [STO v.
Ajit Mills Ltd. (1977)]
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VI. Vicarious liability and statutory offences
The maxim, "qui facit per alium facit per se" and "respondent-superior" find no place in criminal law.
Criminal liability flows from authorisation and not simply from the relationship of master and servant.
However, Parliament can create a liability in those, who have no mens rea, or in those who have not
committed any actus reus.
The Supreme Court in Hira Lal Hari Lal Bhagwati v. CBI (2003) stated that unless statutorily provided, there
is no vicarious liability under penal law.
State of Gujrat v. Kansara Manilal Bhikalal (1964)
In this case it was observed that responsibility can exist even without a guilty mind. The said case, it was
held that the occupier of the factory would be liable for an offence under section 92, Factories Act, unless the
real offender was booked in the manner provided under section 101. Hence, it is not necessary that means
Riya must always be established.
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