MENS REA IN STATUTORY OFFENCES

A probe into presumption that requires mens rea as an element of crime and whether or not it
should be used in cases of Statutory Offences....

INTRODUCTION

"Living under free institutions we submit to public regulation and control in ways that would
appear inconceivable to the spirit of oriental despotism.....”

- Professor Ernst Freund1

The fundamental changes in the relation of individual to community stem from socio-economic
changes which inevitably and profoundly affected the criminal law and its administration. For
the past century and a quarter the proliferation of statutory regulatory offenses has been perhaps
the most important factor producing change in the character of our criminal law and the theory of
criminal liability. This development has left a legacy of problems, many of which are not only
unsolved but largely unexplored.2

As one looks over the legislative materials or turns the pages of the statutory compilation of any
American jurisdiction, one cannot fail to be impressed by the enormous bulk of penal regulations
which have entered the law and the range of human activities sought to be affected or controlled
by these prohibitions. The killing of domesticated pigeons, the fencing of saltpeter caves against
wandering cattle, the regulation of automobile traffic, and the issue of daylight saving versus
standard time have all, at one place or another, been made problems of the criminal law. No
doubt, much of this represents the inevitable price of the new role which, perhaps through
necessity, we have thrust upon government. And thus, there are surely reasons to inquire whether
such broad resort to criminal liability as the regulatory device is necessary or inevitable. The
demand for regulatory legislation first reached flood stage in the last half of the nineteenth
century, when administrative law was in its early period of development and sophistication. The
resort to criminal penalties, in many situations, may have represented the only apparent means of
accomplishing the regulatory purposes. This necessity has abated with the passage of the years
and the development of alternative regulatory techniques. But as one surveys much modern
legislation, he is often struck by the obvious lack of ingenuity displayed in devising sanctions. It

1
FREUND, Standards of American Legislation 21 (1917). He added: "[I]t is well known what deep-seated
repugnance and resistance of the native population to the invasion of their domestic privacy and personal habits
English health officers in India have to overcome in order to enforce the sanitary measures necessary to prevent the
spread of infection or contagious disease."
2
Francis A. Allen, Edwards: Mens Rea in Statutory Offences, Yale Law Journal Volume 66 Issue 7 Article 8,
https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=8576&context=ylj.

1|Page
is clear that criminal penalties are often included in such legislation almost as a matter of course.
Typically, there is no adequate consideration of their necessity or utility in the particular
regulatory situations.3

STATUTORY OFFENCES

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, 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.4

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 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.5

3
Ibid.
4
Shashank Shekher, Mens Rea in Statutory Offence, Legal Service India,
http://www.legalservicesindia.com/article/831/Mens-Rea-in-Statutory-Offences.html.
5
Ibid

2|Page
These offences were as follows:-

1. Offences calculated to prevent or obstruct the economic development of the country and
endanger its economic health.
2. Evasion and avoidance of taxes lawfully imposed
3. Misuse of position by public servants in making of contracts and disposal of public
property, issue of licenses and permits and similar other matters
4. Delivery by individuals and industrial and commercial undertaking of goods not in
accordance with agreed specifications in fulfillment of contracts entered into with public
authorities
5. Profiteering, black-marketing and hoarding
6. Adulteration of foodstuffs and drugs
7. Theft and misappropriation of public property and funds
8. Trafficking in licenses, permits, etc.

These crimes are very important for the society and protect public interest. Hence, the offences
falling under this class are known as “Public Welfare Offences”. Hence, if a statute is enacted to
recognize them as criminal offences, they would be Statutory Offences, commission of which
would attract punishments.

MENS REA

“The jurisprudence of today knows that no crime can be committed unless there is a mens rea.”6

Actus non facit reum nisi mens sit rea

The above well-known latin maxim describes the relation between mens rea and a crime in
general. Actus reus means a wrongful act. Mens rea means a wrongful intention. The maxim
means that an act does not itself make one guilty unless the mind is also guilty. The mere
commission of a criminal act or violation of law is not enough to constitute a crime. These
generally require, in addition, some elements of wrongful intent or other fault. 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 offence 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

6
R.C. NIGAM,” LAW OF CRIMES IN INDIA”, PRINCIPLES OF CRIMINAL LAW, p. 3 (vol. 1, 1965).

3|Page
done with a guilty mind. In criminology, it has been rightly said that a crime will happen where
and only when the opportunity avails itself.7

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. Mens rea has come to be
recognised as an essential element of crime except in statutory offences where liability is strict.8

MENS REA IN STATUTORY OFFENCES

Darkness only appears to be real in the absence of light, guilt only appears to be sinful in the
absence of your consciousness.

In former times it was frequently maintained that the legislature was not competent to override
the established rules of the common law. That view is now quite abandoned and there can be no
doubt that in modem law the authority of statute is paramount.9 Yet it has been laid down that a
statute must be interpreted to confirm with the common law except where and so far as the words
of the statute show plainly that it is intended to alter the course of the common law or cannot in
their plain meaning otherwise construed.10 The question as to whether a criminal intent must be
imported into every crime defined in the statute, even where it is not expressly mentioned as an
ingredient, has been fully discussed in English11 and Indian12 cases. In R .v. Prince13, Henry

7
Shashank Shekher, Mens Rea in Statutory Offence, Legal Service India,
http://www.legalservicesindia.com/article/831/Mens-Rea-in-Statutory-Offences.html.
8
Ibid.
9
Kenny's Outlines of Criminal Law p. 45.
10
See Craies on Statute Law(othed), Ch. IV; R. v. Morris(1867) IC.CR. 90, By les, I., at p. 95.
11
R. v. Prince (1875) L.r. 2C.C. R. 154 R.v. Tolson (1889)23 Q.B.D. 168
12
See State of Maharastra v. Mayer Hans George AIR 1965 S.C. 722
13
(1875) L.R. 2 C.C. R. 154.

4|Page
Prince was tried and convicted upon the charge of having unlawfully taken Anne Phillips, an
unmarried girl, being under the age of 16 years, out of the possession or against the will of her
father or mother or any person having the lawful care and charge of her. The arguments in favor
of the accused that in general, a guilty mind is an essential ingredient in a crime and that the
accused believed on reasonable ground that the girl was above sixteen. By a majority of fifteen
to one the court held that:

“A mistaken belief, even though based on reasonable grounds, that the girl was over sixteen
years of age is no defense to a charge of kidnapping-statutory offence of taking a girl under
sixteen out of possession and against the will of her parents or guardian”.

A distinction was drawn between the acts that were in themselves innocent but made punishable
by statute (malum prohibitum) and acts that were intrinsically wrong and immoral (malum in se).
In the former, a belief, a reasonable belief in the existence of the facts, if true, would take the
case out of the mischief of the statute and would be a. good defense; but in the letter case such a
belief was immaterial unless, of course, the law made it otherwise. Three theories were
propounded in this case.

(i) Brett J. propounds that in order to constitute a crime, mens rea is essential.
(ii) Denman J. held that the liability was based on the ground that the accused knowingly
committed a civil wrong by taking a minor girl from the lawful custody ofher parents.
(iii) Bram well J. held that it was sufficient to establish that Prince had intended to commit
an immoral act. The real reason, as has been stated above, for the conviction was that
the accused had committed an act which was forbidden by the statute.

In Queen v. Tolson14, the court held that

“a reasonable belief in good faith in the death of the first spouse negatives mens rea, and is a
good defense to a charge of bigamy, although he or she has not been continuously absent from
the dependent for seven years".

The marriage of the prisoner to Tolson took place in 1880 and Tolson deserted her on December
13, 1881. She and her father made inquiries about him and learnt from his elder brother and from
general report that he had been lost in a vessel bound for America, which went down with all
hands on board. On January 10, 1887, the prisoner, supposing her to be a widow, went through a
ceremony of marriage with another man. The circumstances were well known to the second
husband and the ceremony was in no way concealed. In December 1887, Tolson returned from
America. Upon these facts Mrs. Tolson was charged of Bigamy under section 57 the Offences
against the Persons Act, 1861.

14
(1889)23 Q.B.D. 168.

5|Page
Upon the words of the statute, it is apparently immaterial whether the parties or either of them
did not know that the former wife or husband, as the case may be, was or was not alive. The
question arose whether a mens rea did, by implication, form part of the definition. The jury
convicted the prisoner to the sentence of one day’s imprisonment.

The question for the opinion of the Court of the Crown Cases was whether direction was right.
The conviction was quashed by the court15 by a majority of nine to five. Cave J. observed:

“At common law an honest and reasonable belief in the existence of circumstances, which if
true, would make the act, for which the prisoner is indicted, and innocent act, has always been
held to be a good defense. This doctrine is embodied in the somewhat uncouth maxim, actus non
facit rcum, nisi mens sit rea. Honest and reasonable mistake stands in fact on the same footing
as an absence of reasoning faculty as in infancy or pervasion of that faculty, as in lunacy.
Instances of the existence of the common law doctrine will readily occur to the mind. So far as I
am aware, it has never been suggested that these exceptions do not equally apply in the case of
statutory offences unless they are excluded expressly or by necessary implication16”.

15
It is interesting to note that 46 years before Tolson case, In American Court, in Common Wealth v. March (1843)
7 Mass 472, held a contrary view, where, Justice Shaw observed: "If the statute has made it criminal to do any act
under particular circumstances, the party voluntarily doing that act is chargeable with the criminal intent to doing
it." This view is the prevailing view in the majority of jurisdictions in America. (See Burdick, The Law of Crime, p.
165.
16
It is interesting to note that the Court of Criminal Appeal in R. v. Wheat( 1921) 2KB 126 said of this observation
of Cave J.: “If the learned Judge was laying this ground as a principle applicable to all statutes, we do not agree
with him. The principles is stated too widely." The present tendency of the courts, how ever, appears to affirm it.
Lord Goodard C.J. in Brend v. Wood (1946) 62T.L.R.462, 463 and Harding v. Prince (1948) 1 K.B. 695, 700;
compere also R. v. Dolman(1949) 1 All E.R. 813.

6|Page