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CHANAKYA NATIONAL LAW

UNIVERSITY

A Project On




MALICE & WILFULNESS IN
STATUTORY OFFENCES


Made By: Nidhi Navneet
2
nd
year (3
rd
sem)
ROLL No.570
B.A.LL.B. (Hons)
SUBMITTED TO: - Mr. Manoranjan Jha
FACULTY: - Criminal Law I
Malice & Wilfulness in Statutory Offences


1

ACKNOWLEDGEMENT
I am feeling highly elated to work on the case law Malice &
Wilfulness in Statutory Offences under the guidance of my Criminal Law teacher. I
am very grateful to him for his exemplary guidance. I would like to enlighten my
readers regarding this topic and I hope I have tried my best to pave the way for bringing
more luminosity to this topic.

I also want to thank all of my friends, without whose cooperation this
project was not possible. Apart from all these, I want to give special thanks to the
librarian of my university who made every relevant materials regarding to my topic
available to me at the time of my busy research work and gave me assistance. And at
last I am very much obliged to the God who provided me the potential for the
rigorous research work.

At finally yet importantly I would like to thank my parents for the
financial support.

-----------
Thanking you
Nidhi Navneet
C.N.L.U.


Malice & Wilfulness in Statutory Offences


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CONTENTS

Introduction ...................................................................................... 3
The Common Law Principle ............................................................ 5
Common Law ............................................................................. 5
Mens Rea Under Common Law ................................................. 6
Importance of Mens Rea ............................................................ 7
Limitation in common law principle ................................................ 9
Mens Rea in Indian Penal Code ................................................. 9
Intention while Drafting ........................................................... 10
STATUTORY OFFENCES : an exception .................................... 12
Presumption Under Statutory Offences ................................... 13
Presumption not used in Statutory Offences an exception ... 16
Presumption used in Statutory Offences an exception to the
exception ................................................................................... 18
Liability under a Statute ........................................................... 20
CONCLUSION .............................................................................. 21
BIBLIOGRAPHY .......................................................................... 23

Malice & Wilfulness in Statutory Offences


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INTRODUCTION
In the field of law, it is important to understand each and every cause of each
and every act. Only then a sound judgement can be given in a case. One of the most
important things to consider with regard to any offence is the mens rea or the
blameworthy condition of mind. This element of crime (mens rea) has been in the picture
almost ever since criminal law has known to be exist. It had been incorporated in
definitions of crimes through the use of words like intend or knowledge. In general
terms, Malice which means wrong intention or evil intention is also a kind of mens rea
and Wilfulness which means a deliberate act which shows the intention of doing the act
on part of the doer is also a kind of mens rea. In legal language, "Malice" A person acts
with "malice" if he intentionally or recklessly causes the social harm prohibited by the
offense; and, "Wilfully" "Wilful" has been held in different jurisdictions to be
synonymous with other terms, e.g., "intentional," "an act done with a bad purpose," "an
evil motive," or "a purpose to disobey the law."
Offences have been classified in many ways. But, for this study, the relevant
classification of offences would be into offences malum in se and offences malum
prohibitum. Offences that are malum in se are the ones that are inherently wrong or evil,
like murder, rape, etc.. The society at large recognizes them as wrong. They have
developed as offences over the years and through decisions of the court. Hence, these are
also called Common Law offences as they are developed through precedents. On the
other hand, offences that are malum prohibitum are the acts that are wrong because they
are prohibited by statutes. For example, offences created by Road Traffic Rules are not
inherently wrong but, since they are the rules that have to be followed on the road, their
violation would lead to penalty. Travelling in a car on the right side of the road is not
inherently wrong but, it is an offence as the law does not allow it. It is these kinds of
offences that are referred to as Statutory Offences. They are the ones that are created by
statutes which require strict interpretation. Generally, the question that arises in cases is
that whether mens rea is present or absent in the offender. But, sometimes, the question is
whether it is required or not. This happens in case of statutory offences.
Malice & Wilfulness in Statutory Offences


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Statutory offences are the offences which are created by different statutes and
generally doesnt comes under the guidelines for offences related to the codes. The
statutes like those related with taxation, national security, public welfare, whose mere
omission or commission of acts becomes punishable. In other words, no mens rea or legal
fault is required for criminal liability. I n the large number of modern statutes many have
been interpreted by the courts as using language which, in prescribing punishment for the
specified deeds (each of which is thus an actus reus), has excluded any requirement of
mens rea at all. Where this is so, the question whether the accused may have committed
the deed intentionally, recklessly, negligently or by mistake, is irrelevant so far as his
liability to conviction is concerned. Such a crime is often and suitably termed a crime of
strict liability or of absolute liability.
1

This evolves as an exception to the common law principle of each and every
crime. Thus, it has become a question before the court of law whether to except the
general principle in all the cases or to apply the exception in all where the offences are
socio-legal in nature and are against the public welfare. The current research study
critically analyses this situation and takes into account the existing views and decisions
on the issue with the help of relevant case laws.


1
Taken from RUSSELL ON CRIME by J.W. Cecil Turner, 12
th
edition, Universal publication, pg no. 62.
Malice & Wilfulness in Statutory Offences


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THE COMMON LAW PRINCIPLE
Common Law
The word common law is used in many different contexts. The word common
law is used in the present context to describe the body of legal principles and concepts
which were evolved over many centuries by judges in the English courts of law. The
common law was influential in molding both the area of and restrictions on freedom in
England and those parts of the world which have the common law tradition as their legal
foundation. The common law is the product of long evolved social values which are
judicially articulated and interpreted. "Its roots strike deep into the soil of national ideas
and institutions".
One of the greatest virtues of the common law system is to be found in its
capacity to balance the individual interests in liberty with the common concerns and
interests of the community.
In the modern era, there is a growing belief that the solutions to these
problems can be sought by deliberate and calculated reform of the law through
legislation. Reforms are formulated by law reform agencies and by political and
bureaucratic authorities through processes of abstract rationalization or imperfect
empirical investigation, sometimes based on Marxist and neo-socialist ideological
assumptions. The evolved law is thereby fractured and reshaped with unpredictable
consequences. Another consequence of this method is that it tends to remove questions of
public morality from the community itself. It results in the imposition of restrictions on
liberty which is inadequately founded on public perceptions. Imperfect rationalism and
empiricism are poor substitutes for the accumulated experience of the community,
enshrined in the common law. The common law experience reflects the wisdom and even
the follies of our civilization. However, it represents an evolved public morality which is
the soundest basis for the formulation of legal precepts (subject to comments below
relating to modernisation and legislation).
2


2
Excerpt from Article on Common Law and Statute by Doctor Mark Cooray.
Malice & Wilfulness in Statutory Offences


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Our system of criminal law is not, as is the case in some countries, contained
in a single code promulgated by a legislative body. It is, on the contrary, a conglomerate
mass of rules based upon the ancient common law of England as modified and extended
by the authoritative decisions of the judges in the long passage of history, and vastly
enlarged by the addition of statutory enactments made by parliament from time to time, to
meet the needs of the moment.
Mens Rea Under Common Law
Under common law, it appeared as the ethical conception that it was not
proper to punish a man criminally unless he had known that he was doing wrong.
Attention was thus more strongly directed to the mental element in crime, and the moral
notion gradually crystallized into a rule of law. It happened that long before this period St
Augustine had said: Ream linguam non facit nisi mens rea. This remark, slightly altered,
eventually appeared in the Leges Henrici Primi as a test of guilt in the crime of perjury,
and ultimately it was further refined and used by Coke to express it as Et actus non facit
reum nisi mens sit rea in which there is a clear distinction between a mans deed (actus)
and his mental processes (mens) at the time when he was engaged in the activity which
resulted in the deed. This means that the conduct which resulted in the deed was inspired
and actuated by his mens rea, because in the usual case he intends to produce that result
and regulates his conduct in order to produce it.
3

Mens rea, or "guilty" intent, deals with what the defendant needs to have been
thinking at the time he or she committed the actus reus for criminal liability to attach. In
order to be guilty of most crimes, the defendant must have had the mens rea required for
the crime he was committing at the time he committed the criminal act. As with the actus
reus, there is no single mens rea that is required for all crimes. Rather, it will be different
for each specific crime.
Thus it can be said that mens rea is one of the principles of the common law
that a crime is not committed if the mind of the person doing the act in question be
innocent. It is said that actus non facit reum nisi mens sit rea (the intent and act must both
concur to constitute the crime). Although prima facie and as a general rule there must be

3
Taken from Kennys Outlines of Criminal law by J W Cecil Turner, pg no.13, 19
th
ed., Universal
Publication.
Malice & Wilfulness in Statutory Offences


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a mind at fault before there can be a crime, it is not an inflexible rule and a statute may
relate to such a subject matter and may be so framed as to make an act criminal whether
there has been any intention to break the law or otherwise to do wrong or not.
4

Importance of Mens Rea
Mens Rea is a technical term. It means some blameworthy condition of the
mind, 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 offences is said to have
been committed only when an act, which is regarded as an offence in law, is done
voluntarily. Hence, an act becomes criminal only when done with a guilty mind.
Before a criminal is made liable, he should be proven to have some
blameworthy mental condition (mens rea). For example, when someone attacks you, then,
causing injury to him in private defence is not a crime but, causing injury with the
intention of revenge is a crime. This is how the presence of a guilty mind changes the
nature of the offence. But, the requirement of a guilty mind varies from crime to crime.
An intention which would qualify as the required mens rea for one crime, may not for
some other crime. In case of murder, it is the intent to cause death; in case of theft, it is
the intention to steal; in case of rape, it is the intention to have sexual intercourse with a
woman without her consent, etc.. Hence, although mens rea is a sine qua non of a
criminal act, its type and degree may vary from crime to crime.
The importance of mens rea can be established by common law judgements
which appeared in many cases. For example, in an appeal
5
against conviction and
sentence for murder in Baustoland which came before the judicial committee of the privy
Council
6
, it appeared that the appellants had plotted together to murder a man and to
dispose of his body so that his death should be thought due to an accident. They invited
him to a hut at night where they plied him with beer, after which they beat him with an
intent to kill. Thinking him to be dead, they carried the body out and rolled it over the
cliff to make it appear as accident. Medical evidence, accepted the fact that the death was

4
Excerpt taken from Ratanlal and Dhirajlals The Indian Penal Code by Justice Y.V. Chandrachud & V.R.
Manohar, 33rd Edition Reprint 2012, Lexis Nexis Butterworths Publication.
5
Meli and others v. R. [1954] 1 W.L.R. 228; 1 All E.R. 373.
6
Lord Goddard, C.J., Lord Reid and Mr L.M.D. de Silva.
Malice & Wilfulness in Statutory Offences


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not due to the beating nor due to rolling down the cliff, but because of exposure to the
cold. The appellants were held guilty of culpable homicide and not of murder as their
conduct fell in two parts; 1
st
, the attack in the hut and 2
nd
the subsequent placing of body
outside. Of these the first part was actuated by mens rea but this activity didnt caused the
death and therefore there was no actus reus of murder
7
. On the other hand once they
believed the man to be dead their intention to kill had ceased and their activity was now
prompted merely by their desire to evade detection, and therefore their conduct in leaving
the body in open was not actuated by malice, afterthought, so that the resulting death by
freezing could not make them gulty of murder.
8
In an Indian case in 1890
9
the Court of
Appeal by a majority, in absence of mens rea for the final cause of death quashed the
conviction of murder. Khandu, with intent to kill, had beaten his victim on the head, then,
believing him to be dead, had set fire to the hutin which he was lying in order to remove
all evidence of crime. But medical evidence showed that the blows did not caused the
death, which was in fact caused by burning. The court therefore quashed the conviction
of murder. Again, in the African case of R. v. Shorty
10
it was held that there was a felling
of the deceased with intent to kill by the accused who then went on to place the body in a
sewer; the death however was not due to the blow struck but to drowning. The court held
that the immersion in the sewer was a new, intervening act, and it was not immediately
connected with the assault, adding, we do not feel that at this stage there was any
intention to kill, because there was a genuine, if inadequately founded, belief that the
accused was dead;
11
accordingly Shorty was convicted only of attempt to murder.
12

Thus, it can be said that to decide whether the person is liable with the
punishment of an offence, the person or say, accused, must have along with the actus reus
of that offence, the particular mens rea for that offence too.

7
Acc. to English law they were clearly guilty of attempt to murder, but there is no mention of this in report.
8
Taken from Kennys Outlines of Criminal law by J W Cecil Turner, pg no.14, 19
th
ed., Universal
Publication.
9
R. v. Khandu (1890) I.L.R. 15 Bom., 194.
10
1950 S.R. 280.
11
Per Tredgold, J.
12
Supra 6, pg no. 15.
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LIMITATION IN COMMON LAW
PRINCIPLE
Mens Rea in Indian Penal Code
The Indian Penal Code 1860 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.
13
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, voluntarily, maliciously, etc.. Thus, it can be said that the essence of the
common law principle is present in IPC but that principle is not incorporated completely
in it. So, for interpretations of the provisions of IPC, the common law principle would not
be used and, else, the definition provided by the code will be of utmost importance.
14

Under Indian Penal code, every offence is defined. The full definition of
every crime contains expressly or by implication a proposition as to the state of mind.
Thus, it completely depends on the way the offence is defined by the drafters to constitute
whether that offence requires mens rea or not to be an offence. It, therefore, appears that
the maxim actus non facit reum nisi mens sit rea has not so wide an application as it is
sometimes considered to have. It has undergone a modification owing to the greater
precision of the modern statutes. It is impossible to apply it generally to all statutes and
the substance of all the reported cases is that it is necessary to look at the object of each
Act that is under consideration to see whether and how far knowledge is the essence of
the offence created.

13
For details see Shamshul Huda, The Principles of Law of Crimes in British India, Tagore Law Lectures,
1902, Eastern Book Co., Lucknow, Reprint 1993, ch 5 & ch 6.
14
Taken from PSA Pillais Criminal Law by K I Vibhute, 10
th
ed., Lexis Nexis Butterworths Wadhwa
publication, Pg 57.
Malice & Wilfulness in Statutory Offences


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The maxim actus non facit reum nisi mens sit rea has, however, no
application to the offences under the Penal Code in its purely technical sense because the
definitions of various offences contain expressly propositions as to the state of mind of
the accused. If, in any case, the Indian Legislature has omitted to prescribe a particular
mental condition, the presumption is that the omission is intentional. In such a case the
doctrine of mens rea is not applicable.
But Sherras v. De Rutzen
15
seems very like an emphatic re-assretion of the
doctrine that mens rea is an essential ingredient of every offence except in three case: (1)
cases not criminal in any real sense but which in the public interest are prohibited under a
penalty, e.g. Revenue Acts; (2) public nuisance; (3) cases criminal in form but which are
really only a summary mode of enforcing a civil right. Only limited and exceptional class
of offences can be committed without a guilty mind. The court should always bear in
mind that unless the statute, either clearly or by necessary implication, rules out mens rea
as a constituent part of crime, an accused should not be found guilty of an offence under
the criminal law unless he has got a guilty mind.
Intention while Drafting
Element of Mens Rea is incorporated in most of the offences of IPC but there
are some provisions where no element can be found. There, it is presumed that mens rea
is intentionally omitted and thus for commission of that offence, no mens rea is required;
means only the commission of offence is necessary and there is no need to prove the
mens rea. The burden of proving mens rea or the guilty intention of the accused lies on
the complainant. Most of the times, it so happens that proving the commission of an
offence becomes a difficult task and upon that to prove the intention which is not visible
from the outset, would be a herculean task for the complainant. In such cases or
situations, the person guilty of the offence would get free which will be against the
principles of law. Thus to prevent such condition, the accused is punished for commission
of offence only and it is presumed by the court itself that he is carrying the blameworthy
condition of mind, which is rebuttable. This kind of situation mainly arises in the cases
which deals with socio-welfare legislations which are also called statutory offences.

15
[1895] 1 QB 918.
Malice & Wilfulness in Statutory Offences


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Under IPC also, there are provisions which specially deals with welfare of
society like theprovision related with dowry death
16
. There are certain sections in the
Indian Penal Code also, in which there no element of mens rea is mentioned and it can be
inferred that the drafters intentionally left mens rea from those provisions as to provide
some relief to the prosecution from the extensive burden of proving the act and also
proving the intention lying behind that act. For example, Sec 292 of the code, which talks
about Sale, etc., of obscene books, etc., and provides the punishment only commission of
the act. It is immaterial whether there was any intention or not.

16
Sec. 304 (B) of Indian Penal Code, 1860.
Malice & Wilfulness in Statutory Offences


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STATUTORY OFFENCES : AN
EXCEPTION
An offence is basically a violation of law. In legal parlance, the word
offence is generally construed as a criminal wrong. Hence, offence means a wrong in
penal law. The Code of Criminal Procedure, 1973 defines offence as any act or
omission made punishable by any law for the time being in force and includes any act in
respect of which a complaint may be made under section 20 of the Cattle-trespass Act,
1871( 1 of 1871). This is a guideline for offences related to the Code. But, there are
other types of offences too; the ones that are created by different statutes, like those
related to taxation, national security, etc.. These are commonly referred to as Statutory
Offences. Offences have been classified in many ways. But, for this study, the relevant
classification of offences would be into offences malum in se and offences malum
prohibitum. Offences that are malum in se are the ones that are inherently wrong or evil,
like murder, rape, etc.. The society at large recognizes them as wrong. They have
developed as offences over the years and through decisions of the court. Hence, these are
also called Common Law offences as they are developed through precedents. On the
other hand, offences that are malum prohibitum are the acts that are wrong because they
are prohibited by statutes. For example, offences created by Road Traffic Rules are not
inherently wrong but, since they are the rules that have to be followed on the road, their
violation would lead to penalty. Travelling in a car on the right side of the road is not
inherently wrong but, it is an offence as the law does not allow it. It is these kinds of
offences that are referred to as Statutory Offences. They are the ones that are created by
statutes which require strict interpretation.
17

Statutory Offences are needed because, it is not only the crimes in the Indian
Penal Code, 1860 that can harm the society but, another very important class of crimes
(White Collar Crimes) also poses a big threat on the society. Numerous scams have been
unveiled in the past 20 years. From Harshad Mehta to 2G scam, all have contributed
towards harming the society. In fact, in 1962, the Government of India under Lal Bahadur

17
Excerpt taken from http://legalservicesindia.com/article/article/mens-rea-in-statutory-offences-831-
1.html.

Malice & Wilfulness in Statutory Offences


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Shastri (the then Home Minister) set up a Committee (Santhanam Committee) on
Prevention of Corruption, which proposed certain socio-economic offences to be made a
part of the Indian Penal Code, 1860 as a new Chapter. But, unfortunately this did not
happen.
18

Statutory offences appears as an exception to the concept of general offences.
It appears as a limitation to the common law principle actus non facit reum nisi mens sit
rea i.e., every offence requires mens rea. For a person to be proved guilty of any statutory
offence, there is no need to prove that the person was having the requisite mens rea as it
is presumed beforehand that mens rea was present there whereas to prove general
offences, mens rea is needed to be proved.
Presumption Under Statutory Offences
In statutory interpretation, certain presumptions are taken into account by the
court while interpreting the statutes. The presumption relevant here is that a criminal act
in general requires the presence of mens rea. Almost all crimes that exist independently
of any statute require, for their commission, some blameworthy state of mind on the part
of the actor. Where a statute creates an offence, no matter how comprehensive and
absolute the language of the statute is, it is usually understood to be silently requiring that
the element of mens rea be imported into the definition of the crime (offence) so defined,
unless a contrary intention is express or implied. Hence, the plain words of a statute are
read subject to a presumption (of arguable weight), which may be rebutted, that the
general rule of law that no crime can be committed unless there is mens rea has not been
ousted by the particular enactment.
19
In the case of Brend v. Wood
20
, Lord Goddard, C.J.
held that:
It is of the utmost importance for the protection of the liberty of the subject
that a court should always bear in mind that, unless a statute, either clearly or
by necessary implication, rules out mens rea as a constituent part of a crime,
the court should not find a man guilty of an offence against the criminal law
unless he has a guilty mind.

18
Report of the Committee on the Prevention of Corruption (1964), p 53.
19
Freidmann, Law in a Changing Society, 2nd Edition, p 202.
20
(1946)175 L.T. 306.
Malice & Wilfulness in Statutory Offences


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Today, the kinds of offences are multiplied by various regulations and orders
to such an extent that it is difficult for most of the law abiding subjects to avoid offending
against the law at all times. Some law, out of so many, could be violated by chance
without a guilty intention at some point of time. In these circumstances, it seems to be
more important than ever to adhere to this principle. But, there is more to it. In the past, it
also seemed that the importance of this presumption of mens rea was declining in
importance.
21

In Hobbs v. Winchester Corporation
22
, Kennedy, L.J. said that there is a
clear balance of authority that in construing a modern statute, this presumption as to mens
rea does not exist. This can particularly hold well if Roscoe Pounds definition of
statutory offences is considered. He said that such statutes are not meant to punish the
vicious will but to put pressure on the thoughtless and inefficient to do their whole duty
in the interest of public health or safety or morals.
23

The world of today is one of machines. There is widespread industrialization
and rampant growth thereof. Everywhere, there are high-powered machines. Very often,
these machines are dangerous and may pose a health hazard to the worker employed. The
Bhopal Gas Tragedy
24
showed the world that compromising on safety standards is the
first thing that industries do to cut costs. In respect of hazardous industry, the threat may
not be just to the workers of the factory as in Bhopal but, also to persons residing in and
around that area. In the said Tragedy, in 1984, there was a major gas leak of MIC gas
from the Union Carbide factory in Bhopal. Thousands died and many are still suffering as
a result thereof. Hence, it is in the interest of the larger good that there are laws which lay
down standards and regulate the functioning of the industries, prevent, food adulteration,
corruption, etc., and that these laws are strictly applicable, i.e., they are strictly construed
without requiring mens rea in commission of the offences they create. For example, The
Factories Act 1948, stipulates the machinery should be adequately fenced, minimum
facilities are available to labours; The Minimum Wages Act 1936; The Essential
Commodities Act; etc.
25


21
Glanville Williams, Textbook of Criminal Law, 2nd Edition, Stevens & Sons, 1983, p 30.
22
[1910] 2 KB 471
23
Dean Roscoe Pound, The Spirit of the Common Law, p. 52
24
Excerpt taken from http://www.slideshare.net/praftek/bhopal-gas-tragedy.
25
Excerpt taken from PSA Pillais Criminal Law by K I Vibhute, 10
th
edn, Lexis Nexis Butterworths
Publication, pg no. 69.
Malice & Wilfulness in Statutory Offences


15
But, since the view against the presumption of mens rea cannot be applied
universally in every case, after Hobbs Case
26
, as years passed, the courts again seemed to
be favouring the use of the presumption. But, later on, Lord Evershed analyzed the
situation critically in a few of his judgments, one of the most important of which is that in
the case of Reynolds v. G.H. Austin & Sons Ltd.
27
. In this case, Lord Evershed said that :-
Where the subject matter of the statute is the regulation for the public welfare
of a particular activity statutes regulating the sale of food and drink are to be
found among the earliest examples it can be and frequently has been inferred
that the legislature intended that such activities should be carried out under
conditions of strict liability. The presumption is that the statute or statutory
instrument can be effectively enforced only if those in charge of the relevant
activities are made responsible for seeing that they are complied with. When
such a presumption is to be inferred, it displaces the ordinary presumption of
mens rea. But, it is not enough merely to label the statute as one dealing with a
grave social evil and from that to infer that strict liability was intended. It is
pertinent also to inquire whether putting the defendant under strict liability will
assist in the enforcement of the regulations. That means that there must be
something he can do, directly or indirectly, which will promote the observance
of the regulations. Unless this is so, there is no reason in penalizing him, and it
cannot be inferred that the legislature imposed strict liability merely in order to
find a luckless victim.
Lord Evershed also said that two conditions must be satisfied if the
presumption as to mens rea is to be rebutted; first, that strict liability must be required to
give practical effect to the legislative intention; and, secondly, the person charged with a
breach of the statutory requirements must have had some opportunity of furthering their
observance. So, if the presumption as to mens rea is a general rule, then presumption
against mens rea in statutory offences would be an exception to the rule. In such a case,
the presumption of mens rea in statutory offences would in turn be an exception to that
exception.

26
Supra note 20.
27
[1951] 2 K.B. 135
Malice & Wilfulness in Statutory Offences


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Presumption not used in Statutory Offences an
exception
This situation is one in which a statutory offence is committed and the
presumption requiring mens rea is not used to decide the case. There have been many
such cases in English as well as Indian courts. One of the early ones is R. v. St. Margarets
Trust Ltd
28
. In this case, a contravention had occurred of Article 1 of the Hire-Purchase
and Credit Sale Agreements (Control) Order, 1956. The article provided that a person
should not dispose of any goods to which the Order applied in pursuance of a hire-
purchase agreement unless the requirements specified in Schedule 2 of the Order were
satisfied, the requirement being that 50% of the cash price should be paid before the
agreement was signed. But, the said contravention was held to be an offence even though
the act was innocently done. The words of the order were an express and unqualified
prohibition. Its object was to help to defend the currency against the peril of inflation
which, if unchecked, would bring disaster upon the country. Donovan, J. said that:-
The present generation has witnessed the collapse of the currency in other
countries and the consequent chaos, misery and widespread ruin. It would not
be at all surprising if Parliament, determined to prevent similar calamities here,
enacted measures which it intended to be absolute prohibitions of acts which
might increase the risk of however small a degree. There would be a little point
in enacting that no one should breach the defences against a flood, and at the
same time excusing anyone who did it innocently.
Another important case in this respect would be that of Lockyer v. Gibbs
29
. In
this case, the Divisional Court held that being in possession of a drug contrary to
Regulation 9 of the Dangerous Drugs (No. 2) Regulations, 1964 is an absolute offence.
Although it must be proved that the accused knew that he had the article which turned out
to be a drug, it need not be shown that he knew what the article was. Lord Parker, C.J.
said that the regulation was a public welfare provision. If one considered the mischief
aimed at alone, there was every reason for treating a provision such as this as a provision
imposing absolute liability.

28
[1958] 1 W.L.R. 522
29
[1967] 2 Q.B. 243
Malice & Wilfulness in Statutory Offences


17
There have been important landmark cases on this in India as well. A fine
example was the case of State of Maharashtra v. M.H. George
30
. In this case, the
respondent left Zurich on November 27, 1962, and landed at Santa Cruz Airport. He did
not get out of the plane, and infact, on being searched, was found to have been carrying
Gold slabs. Till November 24th, there was a general permission for a person to bring or
send Gold into India if it was on through transit. But, after 24th November, a condition
was imposed. When the respondent had boarded the plane at Zurich, he could not have
known of the condition. He was prosecuted for having violated Section 8(1) of the
Foreign Exchange Regulation Act, 1947, and the question was whether mens rea of the
respondent-accused could be established. The majority held that:-
On the question whether mens rea in the sense of actual knowledge that the
act done by the accused was contrary to the law is requisite in respect of a
contravention of Section 8(1) starting with an initial presumption in favor of
the need for mens rea, we have to ascertain whether the presumption is
overborne by the language of the enactment, read in the light of the objects and
purposes of the Act, and particularly whether the enforcement of the law and
the attainment of its purpose would not be rendered futile in the event of such
an ingredient being considered necessary. Where the statute does not contain
the word knowingly, the first thing to do is to examine the statute to see
whether the ordinary presumption that mens rea is required applies or not.
When one turns to Section 8(1) in the present context, one reaches the
conclusion that there is no scope for the invocation of the rule of mens rea. It
lays an absolute embargo upon persons who, without satisfying the condition
bring or send into India any Gold, the absoluteness being emphasized by
Section 24(1) of the Act, which throws on the accused the burden of proving
that he had the requisite permission. In our opinion, the very object and
purpose of the Act and its effectiveness as an instrument for the prevention of
smuggling would be entirely frustrated if a condition were to be read into
Section 8(1) of the Act qualifying the plain words of the enactment, that the
accused should be proved to have knowledge that he was contravening the law
before he could be held to have contravened the provision.

30
AIR 1965 SC 722
Malice & Wilfulness in Statutory Offences


18
Another very important case in relating to this exception to the rule of mens
rea is that of Ranjit D. Udeshi v. State of Maharashtra
31
. In this case, even a provision of
Indian Penal Code, 1860 was held to be not requiring mens rea. The Supreme Court had
held that:-
We do not accept the argument that the prosecution must prove that the
person who sells or keeps for sale any obscene object knows that it is obscene
before he can be adjudged guilty. The first sub-section of Section 292 of IPC
does not make knowledge of obscenity an ingredient of the offence. The
prosecution need not prove something which the law does not burden it with. If
knowledge were made a part of the guilty act (actus reus), and required the
prosecution to prove it, it would place an almost impenetrable defence in the
hands of offenders. It is argued that the number of books these days is so large
and their contents so varied that the question whether there is mens rea or not
must be based on definite knowledge of the existence of obscenity. We can
only interpret the law as we find it and if any exception is to be made, it is for
Parliament to enact a law. As we have pointed out, the difficulty, of obtaining
legal evidence of the offenders knowledge of the obscenity of the book, etc.
has made the liability strict. Under our law, absence of such knowledge may be
taken in mitigation but, it does not take the case out of the sub-section.
These were some important examples where the exception to the presumption
requiring mens rea has been applied. In these cases, punishment was given for statutory
offences, without mens rea on the part of the accused. This generally does happen in such
offences, due to them being linked with public welfare and national interest. But, in
certain other cases, the element of mens rea is somehow or the other incorporated into the
definition of the statutory offences, thereby helping out the accused.
Presumption used in Statutory Offences an exception
to the exception
In spite of the rule being developed that the presumption requiring mens rea
will not be used in cases of Statutory Offences, there have been situations where it has

31
AIR 1965 SC 881
Malice & Wilfulness in Statutory Offences


19
been used. One of the best and earliest examples of this is the case of Sherras v. De
Rutzen
32
. In this case, the defendant was convicted of selling alcohol to a police officer
while on duty under Section 16(2) of Licensing Act 1872. It was customary for police
officers to wear an armlet while on duty but this constable had removed his. The
appellant therefore believed that he was off duty. The statute was silent as to the question
of whether knowledge was required for the offence. The appellant was convicted and
appealed contending that knowledge that the officer was on duty was a requirement of the
offence. The appeal was allowed and his conviction was quashed after the court applied
the presumption requiring mens rea in this Statutory Offence. Wright, J. held that:-
There is a presumption that mens rea, an evil intention, or a knowledge of the
wrongfulness of the act, is an essential ingredient in every offence; but that
presumption is liable to be displaced either by the words of the statute creating
the offence or by the subject-matter with which it deals. It is plain that if guilty
knowledge is not necessary, no care on the part of the publication could save
him from a conviction under Section 16(2), since it would be as easy for the
constable to deny that he was on duty when asked, or to produce a forged
permission from his superior officer, as to remove his armlet before entering
the public house. I am, therefore, of opinion that this conviction ought to be
quashed.
Then came the landmark case of Lim Chin Aik v. R
33
. Here, Lord Evershed
held that the accused could not be guilty of entering and remaining in Singapore contrary
to an order, prohibiting him from doing so and made under the Singapore Immigration
Ordinance of 1959, when that order had not been brought to his attention. Imposing
absolute liability on a prohibited person would not have ensured observance of the order
since he could not have complied with it if he did not know of it and no practicable
means was provided by the Ordinance which would ascertain that he had become a
prohibited person. In another case, i.e., R v. Curr
34
, the facts were that under Section 9(b)
of the Family Allowances Act, 1965 (which replaced Section 9(b) of the Family
Allowances Act, 1945), it is an offence to obtain or receive any sum as on account of an
allowance, either as in the defendants own right or as on behalf of another, knowing that

32
[1895] 1 Q.B. 918
33
[1963] A.C. 160
34
1967] 2 Q.B. 944
Malice & Wilfulness in Statutory Offences


20
it was not properly payable, or not properly receivable by him or her. It was held that a
trafficker in family allowances, who was making 800% interest a year on his dealings,
and who had a number of women agents, could not be convicted of soliciting, or
conspiring with them to commit an offence under Section 9(b) unless it was proved that
the agents knew that the allowances were not properly receivable by them. The Crown
argued that an agent must be taken to know the law and hence, that an allowance was not
properly receivable by her. But, the court replied that the offence created by the statute
was not an absolute one, that there might be circumstances in which receipt of another
persons allowance would be lawful, and that knowledge of the wrongfulness of the
transaction must therefore be proved.
Hence, it can be seen that even though a rule of not using the presumption in
Statutory Offences has developed, the presumption is still used when the courts feel fit or
necessary for it to be used, in order to maintain justice.
Liability under a Statute
It is within the power of the legislature to make a certain illegal act or
omission penal and fix an absolute liability upon any person, if, a breach of a certain
enactment is made. Once absolute liability is fixed, then a particular intent or state of
mind is not the essence of the offence. In such cases, acts or defaults of a servant or agent
in the ordinary course of his employment may make the master or principal criminally
liable, although, he was not aware of the acts or defaults and even when they are against
his orders.
35
However, such liability may be specifically imposedby the terms of the
statute or at least the fact of implied liability must be sufficiently discernible from the
provisions of the statutes. In fact, Strict Liability clauses in statutes might result in the
agents being made liable for the acts of the master. In Sarjoo Prasad v. State of Uttar
Pradesh
36
and in State of Orissa v. K. Rajeshwar Rao
37
, the appellant, who was an
employee, was convivted under the Prevention of Food Adulteration Act 1954 for the act
of the master in selling adulterated food items.
38


35
Hari Singh Gaur, The Penal law of India, vol 1, 11
th
edn, Law Publishers, Allahabad, 1998, p145.
36
AIR 1961 SC 631.
37
AIR 1992 SC 240.
38
Supra note 25, pg no. 74.
Malice & Wilfulness in Statutory Offences


21
CONCLUSION
It is a common law principle that to constitute any crime its essential
ingredients i.e. actus reus and mens rea must be present in it but with advances in
technology and of changing socio-legal scenario, various statutory offences have been
enacted. These statutory offences appear as an exception to the general offences as in
these there is no need to prove the presence of mens rea to constitute an offence. The
provisions in the statutes contain no element of mens rea and on this basis it is presumed
that there is no need to prove it. But curiously, the legislatures have taken the easy way
out. In most of the public welfare statutes, nowhere is it stated that mens rea is not an
essential element of the offence concerned. Nor is it stated that mens rea is an essential
ingredient of the crime. This silence has left the field wide open for judicial
interpretation. So, the creation of judge made law has not been without its share of
confusions and contradictions.
To conclude, it can be said that the rules in courts regarding where and how
to use the presumption requiring mens rea have been developing since quite a long time.
In fact, courts have formed their own rules regarding application of the presumption in
normal cases, statutory offences, and even on when not to use the presumption in
statutory offences. But, still, at times, conflicts of thoughts do occur on whether to apply
it or not. In such a situation, it would be pretty appropriate to cite a judgment of the
Supreme Court regarding the implied exclusion of mens rea in Section 7 of the Essential
Commodities Act, 1955, in the case of Nathulal v. State of Madhya Pradesh
39
. The court
had said that:-
Mens rea is an essential ingredient of a criminal offence unless the statute
expressly or by necessary implication excludes it. The mere fact that the object
of the statute is to promote welfare activities or to eradicate a grave social evil
is by itself not decisive of the question whether the element of guilty mind is
excluded from the ingredients of an offence. Mens rea by necessary implication

39
AIR 1966 SC 43
Malice & Wilfulness in Statutory Offences


22
may be excluded from a statute only where it is absolutely clear that the
implementation of the object of the statute would otherwise be defeated.
Also, in determining whether a statutory provision does or does not
create an offence of strict liability, the following considerations seem to be relevant,
as given in the judgment of (M. H. Georges case):-
Phraseology of the statutory provision creating an offence of strict liability,
particularly expressions indicating or excluding the mental element required.
Object of the Statute
Nature of public purpose purportedly preserved by the statute
Nature of the mischief at which the provision or statute is aimed, and whether the
imposition of strict liability will tend to suppress the mischief, although strict
liability should not be inferred simply because the offence is described as a grave
social evil.
Hence, in spite of the developed rules regarding the application of the
presumption, it still depends on the facts of the case as well as the type of statutory
offence whether the presumption will be applied or not, and the courts will still keep
developing new rules to decide the same.

Malice & Wilfulness in Statutory Offences


23
BIBLIOGRAPHY
Sites Referred
http://legalservicesindia.com/article/article/mens-rea-in-statutory-offences-831-
1.html.
www.legalarticle.com/Article-on-Common-Law-and-Statute/Doctor-Mark-
Cooray-56774-3.html.
http://www.slideshare.net/praftek/bhopal-gas-tragedy.

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