What is Mens Rea - Principles and Objectives - The Red Carpet


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Tuesday, June 1, 2021

What is Mens Rea - Principles and Objectives

 What is Mens Rea?

Mens rea is a technical term, generally taken to mean some blameworthy mental condition, the absence of which on any particular occasion negatives the condition of crime. It is one of the essential ingredients of criminal liability. A criminal offence is committed only when an act, which is forbidden by law, is done voluntarily. The term mens rea has been given to the volition, which is the motive force behind the criminal act. An act becomes criminal only when it is done with guilty mind. Ordinarily, a crime is not committed, if, the mind of the person doing the act is innocent.

There must be some blameworthy condition of mind before a person is made criminally liable. For instance, causing injury to an assailant in private defence is no crime but the moment injury is caused with intent to take revenge, the act becomes criminal. However, the requisite guilty state of mind varies from crime to crime. What is an evil intent for one kind of offence may not be so for another kind. For instance, in the case of murder, it is the intent to cause death; in the case of theft, an intention to steal; in the case of rape, an intention to have forcible sexual connection with a woman without her consent; in the case of receiving stolen property, knowledge that the goods were stolen, and in the case of homicide by rash and negligent act, recklessness or negligence.

The underlying principle of the doctrine of mens rea is expressed in the familiar Latin maxim actus non facit reum nisi mens sit rea--the act does not make one guilty unless the mind is also guilty. The mere commission of a criminal act (or bringing about the state of affairs that the law provides against) is not enough to constitute a crime, at any rate in the case of the more serious crimes. These generally require, in addition, some element of wrongful intent or other fault.

General Principles

The following illustration is given to enable better understanding of the scope of the principle of mens rea.

If A is walking down a crowded street, and if B accidentally steps on his foot, after the momentary anger and irritation, A is likely to graciously accept the word of apology and carry on walking. Even if B were not to offer an apology, as is wont to happen these days, the worst A would do is to mutter under his breath, rub his injured foot if possible, and keep walking. But suppose C who was not exactly in the best of terms with A, or for that matter even if C were a stranger and he walked up to A and stamped his foot deliberately, A is more likely to turn around and abuse him or stamp his foot in return. Why is there this difference in A's reaction? After all, in both the instances, the nature of injury or hurt caused to A is the same--a person stamped his foot. The difference is in the fact that in the first instance, A felt B stamped his foot by mistake without intending to hurt A and hence is innocent. But in the second instance, C deliberately stamped A's foot clearly, with the intention of hurting A. Hence, the difference in A's reaction and justifiably so.

This is exactly the intention of law when it stipulates that mens rea or guilty intention is the sine qua non of a criminal act and is an essential element of a crime. Just as A's reaction was different to the person who stamped his foot by mistake and the person who stamped his foot deliberately, the law also differentiates between persons who may have acted innocently or by mistake, and those who have acted consciously with intent to cause harm. If A had turned around and slapped or abused B, who stamped his foot by mistake, one can be sure that friends or the general onlookers would have felt that A's reaction and behavior was unjustified and that A lacked grace and decency. On the other hand, if A were to do that with C who walked up to A and stamped his foot deliberately, the reaction of slapping back or abuse would have been felt to be justified and A's reaction and retaliation may even be applauded. Similarly, if law were to punish persons who acted innocently and who had no intention whatsoever to cause harm, then there would be no public acceptance of the same.

The fact that mens rea has been made central to criminal liability, also includes that every person has the capacity to choose between right and wrong. Once a person makes a choice, he has to take the responsibility for the same.

Every person is born free and has the freedom to live in a free manner. Every individual has the freedom to act freely. This freedom is not without its concomitant expectations and obligations. Freedom to act freely also means that every person has the capacity and ability to choose between right and wrong, good and evil. From this, it follows that every person who has the capacity to discern and discriminate, has a moral duty to choose right over wrong and good over evil. Once a person exercises his free will to do or not to do an act, then he is also responsible and liable for the consequences.

Its Objective

The object of the law is always to punish a person with a guilty mind. It does not want to put behind bars an innocent person who may have had the misfortune of being involved in an incident and event, which he did not have the intention of participating in. That is why one would notice that many penal statutes, which define or describe what is an offence, very often bring in the mental element to the act by using the words, 'intentionally', 'voluntarily', 'willfully', 'knowingly', 'reason to believe' etc.

These words have been used in the different definitions of crime to indicate the state of the mind of the person at the time of commission of the offence. The existence of the guilty mind or mens rea at the time of commission of the act us reus or the act alone will make the act an offence. For instance, the IPC is replete with words which indicate the mental state of the mind. Chapter XVI of the IPC defines offences affecting the human body. Culpable homicide is defined as 'whoever, causes death by doing an act with the intention of causing death,...'. Culpable homicide becomes murder, ‘if the act by which the death is caused is done with the intention of causing death'.

The importance of mens rea or intention can be understood when we consider its application to factual situations. For instance, A slipped as he walked and fell. As he fell, he lost balance and pulled down B with him. B hit his head against the wall, sustained head injuries and died. Is A guilty of murder? A satisfies one portion of the definition of murder, which is doing an act which causes death. But still it does not constitute the offence of murder because another essential ingredient of the offence of murder, viz, the intention to cause death, is absent. Hence A is not guilty of murder.

Similarly, if a person intends to dishonestly take a movable property out of the possession of a person without his consent, it amounts to theft. But if a person takes a movable property from a person without his consent, but by mistake, the act does not constitute the offence of theft. For instance, A puts on B's shoes by mistake, believing it to be his. Is A guilty of committing theft? A has satisfied one ingredient of the offence viz, taking away the moveable property of B, which is the pair of shoes, without B's consent. However, there is another essential ingredient to constitute the offence of theft. The taking away of the moveable property must be accompanied by the mental element of dishonest intention. Only if dishonest intention is present, A will be guilty of committing theft.

Intentionally joining an unlawful assembly, harbouring rioters knowing fully well that they are rioters, fraudulently, dishonestly or with intent to injure, making a false claim in a court, fraudulent use of weighing instrument knowing it to be false, uttering words with deliberate intention to wound religious feelings, are all offences under the IPC. It can be noticed that every overt or outward act or the act us reus has also to be accompanied by a guilty mind or mens rea, which is also an essential ingredient of a crime.

The element of mens rea as an essential ingredient of a crime is also approved by the growing modern philosophy of penology. Modern day criminal jurisprudence no longer accepts retribution as the main object of criminal law. Today's emphasis is on reforming the criminal and rehabilitating him. The object is that punishment should fit the offender and not merely the offence. Going back to the analogy of B who stamped A's foot by mistake and C who did it on purpose, it may be noticed that A's reaction was not based on the act or the act us reus, which is the injury to A's foot, but on the basis of the intention of the offender, i.e., B or C as the case may be. Such an approach to sentencing of offenders is possible only if, apart from the crime or the actus reus per se, the mental element, the intention or the mens rea of the offender is also taken into consideration.


The IPC sets out the definition of offences, the general conditions of liability, the conditions of exemptions from liability and punishments for the respective offences. Lord Macaulay and his colleagues have not used the common law doctrine of mens rea in defining these crimes. However, they preferred to import it by using different terms indicating the required evil intent or mens rea as an essence of a particular offence. Guilt in respect of almost all the offences created under the IPC is fastened either on the ground of intention, or knowledge or reason to believe. Almost all the offences under the IPC are qualified by one or the other words such as 'wrongful gain or wrongful loss', 'dishonestly', 'fraudulently', 'reason to believe', 'criminal knowledge or intention', 'intentional cooperation', 'voluntarily', 'malignantly', 'wantonly', maliciously. All these words indicate the blameworthy mental condition required at the time of commission of the offence, in order to constitute an offence. Thus, though the word mens rea as such is nowhere found in the IPC, its essence is reflected in almost all the provisions of the Penal Code . Every offence created under the IPC virtually imports the idea of criminal intent or mens rea in some form or other.

Further, ch IV of the IPC deals with 'General Exceptions', wherein acts which otherwise would constitute offences, cease to be so under certain circumstances set out in this chapter. The chapter on General Exceptions, in ultimate analysis, enumerates the circumstances that appear incompatible with the existence of the required guilty mind or mens rea and thereby exempts the doers from criminal liability. For instance, a crime committed by a person under mistake of fact, or by a child below seven, or a mentally deranged person and so on, does not constitute offence, because in all such cases, the mental element or the mens rea is absent. Thus, the chapter on General Exceptions, though negatively, recognises the common law doctrine of mens rea. In fact, all the General Exceptions are illustrations of the recognition of the concept of mens rea in the IPC.

Against this background, a question as to whether the maxim actus non facit reum nisi mens sit rea, in general, and of the common law doctrine of mens rea as an independent doctrine, in particular, is relevant in the interpretation of the provisions of the IPC deserves our attention. However, there seems to be no unanimity amongst jurists in their responses to the query.

Referring to actus non facit reum nisi mens sit rea, Mayne observed:

Under the Penal Code such a maxim is wholly out of place. Every offence is defined and the definition states not only what the accused must have done, but the state of his mind with regard to the act when was doing it. It must have been done 'knowingly', 'voluntarily', 'fraudulently', 'dishonestly', or the like ....

Ratanlal & Dhirajlal, in a tone similar to that of Mayne, observed:

The maxim actus non facit reum nisi mens sit rea has, ... no application in its technical sense to the offences under the Penal Code, as the definitions of various offences contain expressly a proposition as to the state of mind of the accused.

In Ravule Hariprasada Rao v State, the Supreme Court ruled that unless a statute either clearly or by necessary implication rules out mens rea as a constituent element of a crime, a person should not be held guilty of an offence unless he had guilty mind at the time of commission of the act. The Apex Court reiterated it in State of Maharashtra v Mayer Hans George, wherein it, inter alia, held that the common law doctrine of mens rea is not applicable to statutory crimes in India. However, K Subbarao J, after examining a plethora judicial dicta dealing with the applicability of the doctrine of mens rea to statutory crimes, in his dissenting opinion, observed that though it is a well settled principle of common law that mens rea is an essential ingredient of a criminal offence, a statute can exclude it. But it is a sound rule of construction adopted in England and also accepted in India to construe a statutory provision creating an offence in conformity with the common law rather than against it unless the statute expressly or by necessary implication excluded mens rea. There is, thus, a presumption that mens rea is an essential ingredient of a statutory offence. It, nevertheless, may be rebutted by the express words of a statute creating the offence or by necessary implication. Subsequently, Justice K Subbarao, speaking for the Supreme Court, reiterated this in Nathulal v State of Madhya Pradesh and Kartar Singh v State of Punjab, wherein the court held that the element of mens rea must be read into statutory penal provisions unless a statute either expressly or by necessary implication rules it out.

However, this general or traditional rule that mens rea is an essential element in IPC offences is not without its exceptions. Like all other statutes, the deciding factor on whether mens rea is required or not, depends on the language of statute and the intention of the legislature as gathered from the statute. S 292, IPC makes the selling, hiring, distributing, publicly exhibiting, importing, exporting etc of obscene books, pamphlets, writings, drawings etc an offence. In the case of Ranjit D Udeshi v State of Maharashtra, a person was prosecuted for selling a book by the name Lady Chatterley's Lover, a popular book written by DH Lawrence. The accused pleaded that he had no knowledge of the contents of the book and hence did not have the necessary mens rea. The court rejected this contention and held that as s 292 of the Code, unlike in several other sections, does not contain the words 'knowingly', knowledge of obscenity is not an essential ingredient of the offence under s 292.31 It also ruled that the liability under the section is strict and hence no mens rea is required.

(The content of this post is taken from PSA Pillai’s Criminal Law. The reading of this post is just for research and educational purposes and it is not being used for any commercial purpose)

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