RELEVANCE OF MENS REA IN STATUTORY OFFENCES

THE RELEVANCE OF MENS REA IN STATUTORY

OFFENCES

SUBMITTED BY: - ROHIT

KUMAR

3RD
SEMESTER
Roll-1847
B.B.A. LL. B

SUBMITTED TO: - DR.FR.PETER

LADIS F

FINAL DRAFT SUBMITTED IN FULFILMENT OF THE COURSE TITLED CRIMINAL LAW – 1

FOR OBTAINING THE DEGREE BBA.LLB(HONS.) DURING THE ACADEMIC YEAR 2018-19.

SEPTEMBER 2018

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RELEVANCE OF MENS REA IN STATUTORY OFFENCES

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYANAGAR MITHAPUR PATNA-800001

DECLARATION

I, Rohit Kumar, student of Chanakya National Law University, hereby declare that the
project work entitled “THE RELEVANCE OF MENS REA IN STATUTORY
OFFENCES” submitted to the Chanakya National Law University, Patna is a record of
an original work done by me under the guidance of Dr. Fr. Peter Ladies F, teacher in subject,
Chanakya National Law University, Patna.

THANK YOU,

NAME: Rohit Kumar

COURSE: B.B.A., LL.B. (Hons.)

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ROLL NO: 1847

SEMESTER – 3rd

SESSION- 2017-2022

ACKNOWLEDGEMENTS

I would specially like to thank my guide, mentor, Dr. Fr. Peter Ladies F without whose constant
support and guidance this project would have been a distant reality.

This work is an outcome of an unparalleled infrastructural support that I have received from
Chanakya National Law University, Patna.
I owe my deepest gratitude to the library staff of the college.

It would never have been possible to complete this study without an untiring support from my
family, specially my parents.

This study bears testimony to the active encouragement and guidance of a host of friends and
well-wishers.

THANK YOU,

NAME: Rohit Kumar

COURSE: B.B.A., LL.B. (Hons.)

ROLL NO: 1847

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SEMESTER – 3rd

SESSION- 2017-2022

CONTENTS

MENS REA – MEANING AND DEFINITION ............................................................................................... 7

Presumption requiring mens rea ..................................................................................................... 8

Presumption not used in Statutory Offences – an exception....................................................... 10

Presumption used in Statutory Offences – an exception to the exception ................................. 13

STATUTORY INTERPRETATION .............................................................................................................. 16

The presumption in favour of mens rea: ...................................................................................... 16

The Courts will regard the Statute as a whole ......................................................................... 16

Regulatory offences: ....................................................................................................................... 17

Possession of controlled drugs: ...................................................................................................... 17

The age element in sexual offences: ............................................................................................... 18

Arguments for strict liability: ........................................................................................................ 19

Harm Prevention ......................................................................................................................... 19

Public Protection:........................................................................................................................ 19
OBJECTIVE OF MENS REA: ..................................................................................................................... 20
INTENTION AND CONSEQUENCE .......................................................................................................... 22
Burden of proof:.............................................................................................................................. 23

PUBLIC WELFARE OFFENCES AND MENS REA ....................................................................................... 24

The Factories Act, 1948 .................................................................................................................. 25

Foreign Exchange Regulation Act 1947 ........................................................................................ 25

The Prevention of Food Adulteration Act, 1954 .......................................................................... 25

CONCLUSION......................................................................................................................................... 27

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BIBLIOGRAPHY ...................................................................................................................................... 28

OBJECTIVE OF THE STUDY

The researcher intends to find out the how how mens rea is relevant in statutory offence.

HYPOTHESIS:

1) The researcher presumes that whenever an offence is committed mens rea is essential
in all offences.
2) Offences without mens rea are exceptions.

RESEARCH METHODOLOGY

This study is oriented to examine the relevance of mens rea in statutory offences. It utilizes
the secondary and primary data sources for research. Secondary data involves the collection
of data through past research studies, journals, magazines, books, articles and internet, while
primary data involves statutes, judgements, bare acts.

SOURCES OF DATA
PRIMARY SOURCES

1. IPC
2. Legislative Provisions
3. Case laws

SECONDARY SOURCES

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• Books

• Newspaper

• Websites

• Journals

• Magazines

REVIEW OF LITERATURE

The researcher has examined the primary and secondary sources of data in the project. The
primary sources is the Indian Penal Code, legal provisions and case laws. The secondary
sources are books, journals, magazines, newspaper etc.

LIMITATION
The researcher intends to cover only few areas of marketing strategies adopted by mall
owners relevant to the proposed study.

As study was done within a limited time, the researcher could not select sufficiently large
sample for the study.

SCOPE OF THE STUDY

This research work on “The relevance of mens rea in statutory offences” may be utilised
for studying how mens rea is relevant in any statutory offence with special reference to IPC.

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MENS REA – MEANING AND DEFINITION

Mens Rea

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 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

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qua non of a criminal act, its type and degree may vary from crime to crime. But, there are
cases in which mens rea is not required for an act to be an offence (statutory offence). Such
situations will be discussed in the following sections of this study.

Presumption requiring mens rea1

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 implied2.
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. In the case of Brend v. Wood,
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.3”

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. In Hobbs v. Winchester Corporation,

1
Ksenia Petlakh. 2017. Mens Rea. The Encyclopedia of Juvenile Delinquency and Justice
2
Mens Rea in Statutory Offences
legal India - http://www.legalservicesindia.com/article/831/Mens-Rea-in-Statutory-Offences.html
3
Susan F. Mandiberg. 2013. Strict Liability. The Encyclopedia of Criminology and Criminal Justice

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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 good if Roscoe
Pound’s 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.” There is also another angle to it. 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
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. This would benefit the society at large.

But, since the view against the presumption of mens rea cannot be applied universally in every
case, after Hobbs’ Case, as years passed, the courts again seemed to be favouring the use of the
presumption.4 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.. 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

4
Mens Rea in Statutory Offences. By L. Ll. J. Edwards, m.a., ll.b., ph.d., of the Middle Temple, Barrister-at-
Law, Reader in the Queens University of Belfast. [London: Messrs. Macmillan & Co., Ltd. 1955. xiv and 258
and (index) 31 pp. 21s. net.]

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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 2 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.

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.. In this case, a
contravention had occurred of Article 1 of the Hire-Purchase and Credit Sale Agreements
(Control) Order, 19565. 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 :-

5
http://www.cvc.nic.in/sites/default/files/Vol%201%20Issue%202%202003.pdf

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“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. Gibb. 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.

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. 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 favour 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

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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.”

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. 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 guily.
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 offender’s 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.”

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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 been used. One of the
best and earliest examples of this is the case of Sherras v. De Rutzen. 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
publican 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.”

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Then came the landmark case of Lim Chin Aik v. R. Here, Lord Evershed 6held 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, 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 defendant’s own
right or as on behalf of another, knowing that 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 person’s
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.

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

6
[1963] AC 160, [1963] 1 All ER 223, [1963] 2 WLR 42

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mens rea in Section 7 of the Essential Commodities Act, 1955, in the case of Nathulal v. State
of Madhya Pradesh7. 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 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.”

These above definitions in fact can be criticised and not all crimes held the same mens
rea as it varies in other crimes. However, like any other crime, there are other degree depends
on the state of mind of perpetrator. In Commissioner of Sales Tax v. Rama and Sons8, General
Merchant, Ballia, the court observed mens rea as "The principle of mens rea comes from
English Criminal Law from times when the law was not codified. It was said that actus non
facit reum nisi mens sit rea (the intent and act must both concur to constitute the crime). But
this principle has lost much of its significance owing to greater precision of modern statutes.
The nature of intent or the ingredients of offences are now clearly stated in the statutes and
nothing further is required to establish as offence then what the statute specified. We have
words like 'voluntarily', 'intentionally', 'negligently', 'knowingly', fraudulently', 'dishonestly',
'rashly', 'omits', 'without lawful authority' etc., 'omits', 'without lawful authority' etc., used in
various sections of the Indian Penal Code defining various offence. Proof of the State of mind
or of the conduct of the person as indicated by the aforesaid word establishes the offence and
no further guilty intent or mens rea need be proved. In fact there are many acts which are
offences and do not require proof any mens rea or guilty intention, for example possession of
illicit fire arm."

Chapter IV of the IPC deals with General exceptions, wherein acts which otherwise would
constitute offences, cease to be so under certain circumstances. However, this general or
traditional rule that mens rea is an essential element in the IPC offences is not without its
exceptions. Like all other statutes, the deciding factor on whether the mens rea is required or
not, depends on the language of statute and the intention of the legislature as gathered from
the statute. Section 292, IPC makes the selling, hiring, distributing, publicly exhibiting,

7
AIR 1966 SC 43, 1966 CriLJ 71
8
1979 AIR 545, 1979 SCR (2) 621

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importing, exporting etc of obscene books, pamphlets, writings, drawings etc an offence. In
Ranjeet D Udeshi v. State of Maharashtra9, a person was prosecuted for selling a book named
‘Lady Chatterley’s Lover’ a popular book written by D H Lawrence. The accused pleaded
that he had no knowledge of the contents of the book and hence not the necessary mens rea.
The court rejected this contention and held that in s 292 of the Code unlike in several other
sections did not contain the words ‘knowingly’ or ‘negligently’ etc. So the knowledge of
obscenity is not an offence under s 292. It was held that the liability under this section was
strict and hence mens rea is not required.

An offence of strict liability is one that does not require proof of fault.

STATUTORY INTERPRETATION

Crimes of strict liability are almost always the creation of statute. However, Parliament has
rarely specified that no mens rea is required, preferring to leave the point to the courts to
decide.

The presumption in favour of mens rea:

Where Parliament creates a criminal offence but fails to specify any requisite mens rea, the
courts presume that the offence involves proof of fault, unless there is clear evidence to the
contrary (Sherraz v. De Rutzen (1895), Sweet v Parsley10(1970), an approach confirmed by
Lord Scarman in Gammon (Hong Kong)Ltd v AG of Hong Kong(1984) and most recently by
the house of Lords in B v DPP(2000).

However, even when a court decides that mens rea is required, it may not be necessary for the
prosecution to prove it in relation to every element of the actus reus . For example, in R v
Lemon and Gay News Ltd(1979), in relation to a blasphemous libel, it was held sufficient for
the prosecution to prove an intention to publish. There was no need to establish an intention
to publish. There was no need to establish an intention to blaspheme.

The Courts will regard the Statute as a whole:

9
Air 1965 SC881
10
[1970] AC 132

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In deciding whether or not to impose strict liability, the courts will have to regard to the
statute as a whole. It follows that if a section creating a particular offence is silent as to mens
rea, whereas other offences under the same Act expressly require proof of fault, the court is
entitled to infer that the offence is one of strict liability (Kirkland v Robinson (1987)).

Regulatory offences:
Where the offence is regarded as regulatory or quasi criminal the courts are more prepared to
impose strict liability (Pharmaceutical Society of Great Britain v Storkwain (1986)). The
courts are more likely to impose strict liability in these cases if they view the potential harm
to society posed by the defendant’s conduct to be greater than any injustice to the individual
resulting from the liability without fault.

On the other hand, the more serious the offence, the less likely the courts are to impose strict
liability, in particular, they will be reluctant to impose liability without fault where there is
evidence that the defendant took all the reasonable care (Sherraz v De Rutzen11(1895)).

Possession of controlled drugs:

Following the rather confused decision of the House of Lords in Warner v MPC(1970) and
the subsequent enactment of the Misuse of Drugs Act 1971, it seems that the courts will
impose a degree of strict liability in relation to the possession of controlled drugs.

Section 5 of the misuse of drugs of Drugs Act,1971 creates the offence of possessing a
controlled drug to establish this offence, all the prosecution had to prove was that the
defendant knew that he was in possession of a container holding ‘something’ and that in fact,
it held a controlled drug (R v McNamara(1988)). However s 28(3)(b)(i) of the Act greatly
limits the effect of s 5 providing that a defendant should be acquitted if ‘..he proves that he
neither believed nor suspected nor had reason to suspect that the substance ..in question was a
controlled drug.

In Sweet v parsley(1970)the defendant was convicted of ‘..being concerned in the

management of premises used for smoking of cannabis’, contrary to s5(I)(b) of the
Dangerous Drugs Act 1965, despite the fact that her tenants were engaging in this practice.
However, on appeal, the House of Lords quashed her conviction on the grounds that since the
offence was serious or ‘truly criminal’, proof of mens rea was required.

11
(1875) LR 2 CCR 154

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However, in relation to a charge of permitting premises to be used for the supply of a

controlled drug contrary to s 8(b)of the misuse of drugs act 1971, the prosecution have to
prove that the defendant knowingly permitted the premises to be used for the supply of a
controlled drug, but it is not necessary to prove that the defendant knew the particular identity
or class of the drug in question(R v Bett (1998)).

It seems that, the following an initial enthusiasm for imposing strict liability in relation to
offences concerning possession of controlled drugs, there has been both a legislative and
judicial tendency to require mens rea for these offences.

The age element in sexual offences:

Many sexual offences involve an age element, for example ss 5, 6 and20 of the Sexual
Offences Act 1956; sexual intercourse with a girl under the age of 13, sexual intercourse with
a girl under a the age of 16 and abduction of an unmarried girl under the age of 16. While
paying lip-service to the presumption in favour of mens rea, mentioned above, the courts
have often held that as far as the age element is concerned, strict liability applies

(Prince(1875)). However, in B v DPP(2000), Lord Nicholls with Lords Irvine and Mackay in
agreement, thought that some of the reasoning in Prince at variance with the common law
presumption in favour of mens rea and must now be regarded as unsound. Indeed, Lord
Bramwell thought that the strict liability aspect of Prince was a ‘relic’ from an age dead and
gone’. A similar approach was also adopted in the case of K(2001). An indecent assault was
committed on a consenting girl under the age of 16, but because the defendant honestly
believed her to be over 16, he was found to lack the mens rea for the offence.

Although one might applaud the House of Lords for this strong restatement of the
presumption in favour of mens rea, it must be recognised that the decision has left the law of
sexual offences in something of a mess. Section 20 of the Sexual Offences Act 1956 leaves
no room for doubt that this was intended by the legislature to be an offence. It is unlikely that
the House of Lords’ strengthened commitment to mens rea, yet Lord Steyn is of the opinion
that it is an offence of strict liability. It would be rather odd if he were right in this respect, as
s 5 is the more serious offence with a maximum sentence of only two years, it would seem
that the ss14 and 15 of the 1956 Act (indecent assault on a consenting boy or girl under the
age of 16) create offences which are very difficult to distinguish in principle from those
discussed in B v DPP, but they are clearly still strict liability offences (R v K (200))

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The position post B v DPP regarding sexual offences is clearly inconsistent and confused and
law reform is urgently required. Setting the Boundaries (July 2000) a Home Office
Consultation Paper marks the first stage of the reform process, but at the time of writing there
s no indication of resulting draft legislation.

Arguments for strict liability:

Harm Prevention
The main purpose of the criminal law is to prevent harmful activity. It is therefore illogical to
confine criminal liability to those occasions where the harmful consequence is brought about
with mens rea. The harmful consequence that the law seeks to prevent is the same whether it
is intended or not.

Public Protection:
There are many situations where the public requires protection from negligence and
imposition of strict liability may make the potential harm doer more careful. c)
Efficacy:

The necessity of proving mens rea results in guilty people escaping liability and involves the
criminal justice system in additional costs and delay.

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OBJECTIVE OF MENS REA:

The object of law is always to punish a person with a guilty mind. It does not want to put
behind bard an innocent person who may have had the misfortune of being involved in
incident and event, which he did not have the intention 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,
‘intentionally’, ’voluntary’, ’wilfully’, ’knowledge’, ’reason to believe’. These words have
been used in the different definitions to indicate the state of the mind of the person at the time
of commission of the offence. The existence of the mental element or the guilty mind or mens
rea at the time of commission of the offence. The existence of the mental element or guilty
mind or mens rea at the time of commission of the actus rea or the act alone, will make the
act an offence.

For instance IPC is replete with words which indicate the mental state of the mind. Chapter

16 of the Code defines offences affecting the human body. Culpable Homicide is denied 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

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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 death. Hence
A is not guilty of murder.

Similarly, if a person dishonestly intends to take a moveable property from a person

without his consent, becomes theft. But if a person takes a moveable property from a
person without his consent, but by mistake, the act does not constitute the offence of
theft. For instance, instance, A puts on B’s shoes by mistake, believing it to be his. Is A
committed the offence viz, taking away the moveable property of B, which is the pair
of shoes without B’ consent. For instance, A puts on B’s shoes by mistake, believing it
to be his. Is A committing the offence of 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, will A be guilty
of committing theft.

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INTENTION AND CONSEQUENCE

The intention to commit an act must be differentiated from the consequences of an act. The
distinction between intention and consequence had come up for consideration before the
Supreme Court in cases arising under the Terrorist and Disruptive Activities Prevention Act
1987(TADA) 12. In Niranjan Shah v Jitendra Bhimraj13, the accused wanted to eliminate two
persons by name Raju and Keshav for gaining supremacy in the underworld. They were
charged for committing a terrorist offence under TADA. In this context, the Supreme Court
held that from the evidence, it was clear that the intention of the accused persons was to
eliminate the rivals and gain supremacy in the underworld. So that they may be known as the
bullies of the locality and will be dreaded as such. But it cannot be said that their intention was
to strike terror in the people or the section of the people, the consequence of such killing is
bound to cause panic and fear but the intention of committing the crime cannot be said to strike
terror in the people or any section of the people. Therefore, it was held that in the absence of
an intention to strike terror even if the consequence of their act resulted in creating terror the
accused were acquitted of the charges under TADA. In Hitendra Vishnu Thakur v St. Of
Maharashtra14 the Supreme court once again emphasised that for an offence under TADA, an
act must be committed with the intention and motive to create terror as contemplated under the
Act. Where the causing of terror is only the consequence of the criminal act but was not the
intention, an accused cannot be convicted for an offence under TADA to bring a charge under
TADA, the terror or panic etc must be actually intended with a view to achieve the result as
envisaged by the section and not by merely an incidental fallout or a consequence of a criminal
act. Every crime, being a revolt against the society, involves some violent activity, which

12
AIR 1990 SC 1962
13
AIR 1990 SC 1962
14
AIR 1994 SC 2623

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results in some degree of panic or creates some fear or terror in the people or a section thereof,
but unless the panic, fear or terror was intended and was sought to achieve the objectives as
defined under this Act, an offence would not fall under TADA.

These cases were followed in the case of St. Of Tamil Nadu v Nalini15. This case was in respect
of the assassination of Rajiv Gandhi, the former Prime Minister of India.. the case of the
prosecution was that killing of Rajiv Gandhi was a terrorist act. The Supreme Court held that
the entire evidence on the record pointed towards the fact that the Liberation Tigers of Tamil
Ealem(LTTE) had conspired to kill Rajiv Gandhi because he had played a key role in the Indo-
Srilankan accord. So, the intention of the accused was only to kill Rajiv Gandhi and not to
commit a terrorist act by overawing the Government of India. Though, it could be said that
terror was struck by the assassination of Rajiv Gandhi there was no evidence to establish that
it was the intention of the accused to strike terror. In order to be an offence under TADA
overawing the Government cannot be the consequence, but it has to be a primary object.

Burden of proof:
Every accused of a crime is presumed to be innocent, unless and until proved guilty by the
prosecution. This means that in every criminal proceeding the law starts off with a presumption
of innocence of the accused and prosecution needs to establish beyond all reasonable doubt all
the essential ingredients of the crime including the mens rea to prove the guilt of the accused.
Thus, the burden of proving the guilt of the accused rests solely on the prosecution.

But when a clause for presumption of mens rea exists in the statute, then the job of the
prosecution is made easy. The prosecution only needs to prove that the accused committed
certain acts. Once that is proved, the statutory presumption of mens rea or guilty mind steps in
and the accused is presumed to be guilty. But this presumption is always rebuttable
presumption ie, the accused person will be given an opportunity to prove to the court that
though the person had committed certain acts, it was done innocently and without any criminal
intent. To this extent, the burden on the prosecution to prove the guilt beyond reasonable doubt
is shifted to the accused. It is for the accused to establish his innocence, though the standard of
proof required is not the same.

It is no doubt very difficult to establish mens rea by positive or direct evidence. Courts have
realised this difficulty and it has been held that it is not necessary for the prosecution to prove

15
AIR 1999 SC 2640

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the existence of mens rea by positive evidence. It is open to the prosecution to prove the guilty
mind of the accused by the general conduct of the accused.

It may not be quite possible to evolve any straight jacket formula for the requirement of mens
rea. The considerations are many and may also vary depending on the nature of the statute,
what is the mischief it sought to remedy and so on and so forth. But legislative power is not
unrestricted or unlimited. It has to be on the touchstone of the Constitution and therefore is
subject to certain restrictions.

PUBLIC WELFARE OFFENCES AND MENS REA

Blackstone writing a century and a half ago, summarizing the classical conception of a crime,
declared that “to constitute a crime against human laws, there must be first a vicious will, and
secondly an unlawful act consequent upon such vicious will”.16 Says Bishop. “it is therefore a
principle of our legal system, as probably it is of every other, that the essence of an offense is
the wrongful intent, without which it cannot exist”.

In the face of an almost unbroken line of authorities to similar effect we are witnessing today a
steadily growing stream of offenses punishable without any criminal intent whatsoever.
Convictions ma be had for the sales of adulterated or impure food, violations of the liquor laws,
infractions of anti-narcotic acts, and many other offenses based upon conduct alone without
regard to the mind or intent of the actor.

A number of recent writers, also, reflecting modern developments in the realm of psychology,
are now suggesting that criminality depends upon behaviour, and only behaviour.17

What does this recent movement portend? Does the modern conception of criminality, which
seems to be shifting from a basis of individual guilt to one of social danger, presage the
abandonment of the classic requirement of mens rea as an essential of criminality? Are we to

16
BISHOP, CRIMINAL LAW (9th ed. 1930) pg 287
17
“the mental state is wholly and solely a matter of inference from behaviour and that alone. The Court,
suddenly realizing its behaviouristic function, recognizes this in telling the witnesses that, by the rules of
evidence, they have merely to state ‘facts observed’, that is, in this case, what they observed the external
conduct of accused to have been”. Malan, The Behaviouristic Vais of the Science of Law(1923)9A.B.A.J.44.
“what the court is interested in, is whether the behaviour of the accused was of such and such a character”
J.F.Dashiell, The Objective Character of Legal “intent”(1931) 38 PSYCH REV. 529,533. “Criminal intent, so
important in the language of law, is imputed to persons who have conducted themselves after certain fashions.
Where criminal intent has any psychological meaning, that meaning is derived from theorizing about the
significance of acts.” R.M.Hutchins. The Law and the Psychologists (1927) 16 YALE REV. “A crime does not
consist of an act and an intent, but simply of an act. It is not an act plus an intent.” Levitt, Extent and Function
of the Doctrine of Mens Rea (1923)

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look forward to a day when criminality will be based upon external behaviour alone irrespective
of intent? No such conclusion is warranted. Mens rea is an essential element or ingredient of
crime, though a universally accepted principle, but is not without its limitations. In the last few
decades, an entire range of social or public welfare legislations have been conceived in such a
manner that the law makes the mere omission or commission of acts punishable.

The Factories Act, 1948

In State of Gujarat v Kansara Manilal18: A manager of a factory was prosecuted for

violation of s 63 of the Factories Act 1948. As per this section no worker shall be
required to work in any factory , except as per the notice displayed in the factory
showing the number of hours that a worker is required to work. The manager took
shelter from proceeding by saying actions intended in good faith is acceptable. The
court said that the manager of the factory was liable and is responsible for the
compliance of the provisions of the act. The court further held that the provisions are
peremptory and their compliance essential. ‘it is not necessary that mens rea must
always be established..The responsibility exists without a guilty mind.’

Foreign Exchange Regulation Act 1947

In Director of Enforcement v MCMT Corporation , respondents failed to secure the

receipt of the foreign exchange in India and contravened s 10 of the FERA 1947. The
court held that a penalty imposed under the FERA was in the nature of a civil obligation
and was far different from a fine or from a penalty imposed for a crime. It was held that
in such circumstances the proceedings were ‘adjudicatory proceedings’ and not in the
nature of ‘criminal prosecution’. In view of this, it was held that mens rea was not
required to be established in such cases to bring home the guilt.

The Prevention of Food Adulteration Act, 1954

18
AIR 1964SC 1893

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In Sarjoo Prasad v State of UP, Supreme Court held that the intention of the legislature
must be gathered from the words of the statute and not on any assumptions about the
capacity of the offenders to appreciate the gravity of the acts done by them. There is
also no warrant servants employed in shops dealing in foodstuff are generally illiterate.
The court further held that the legislature has, in the interest of public health, enacted
the Act and has provided that all persons are prohibited from selling adulterated food.
In the absence of any provision, express or necessarily implied from the context, the
courts will not be justified in holding that the prohibition was only to apply to the owner
of the shop and not to the agent of the owner who sells adulterated food. The appellant
was convicted under PFA Act of 1954 for the act of the master in selling adulterated
food.

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CONCLUSION

It is within the power of the legislature to make a certain illegal act of 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 employment may
make the master or principal employer criminally liable, although he may was not aware of
acts or defaults and even where they were against his orders.19
However such liability must be specifically imposed by the terms of the statute or atleast the
fact of implied liability must be sufficiently discernible from the provisions of the statute. In
fact, strict liability clauses in statutes might result in the agents being made liable for the act of
the master.
Mens rea is an essential ingredient of an Offence. An application of the rule of
construction to this principle meant that there is no presumption that mens rea is excluded form
statutory offences. Under common law "It is a sound rule to construe a statute in conformity
with the common law rather than against it, except where and so far the statute is plainly
intended to alter the course of the common law. Let me conclude this article with observation
of the Hon'ble Full Bench of Andhra Pradesh High Court, in Additional, Commissioner,
Income Tax v. Durga Pandari Nath Tulijayya & Co.20, where it is observed as under:- "The
doctrine of mens rea is of common law origin developed by Judge-made law. It has no place
in the Legislator's law. It has no place in the Legislator's law where offences are defined with
sufficient accuracy. Mens rea is an essential ingredient of an offence. However, it is a rule of
construction. If there is a conflict between the common law and the statutory law, it has always
been held that it is a sound rule to construe a statute in conformity with the common law. But
it cannot be postulated that statute cannot alter the course of the common law. The parliament,
in exercise of its constitutional powers makes statutes and in exercise of those powers it can

19
H S Gour, Penal Law of India, Vol1, 11th Edn, 1998, p145
20 1977 Tax LR 258,

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affirm, alter or take away the common law altogether. Therefore, if it is plain from the statute
that it intends to alter the course of the common law, then the plaint meaning should be
accepted. The existence of mens rea as an essential ingredient of an offence has to be made out
by the construction of the statute. Thus the hypothesis stated in this paper stands proved"

-x-

BIBLIOGRAPHY

The researcher has consulted following sources to complete the rough proposal:

Primary sources:

Primary sources include statutes, acts etc.

STATUTES AND ACTS:

1. Indian Penal Code 1860

Secondary sources:

Secondary sources include books, articles, magazines, journals, websites etc.

 BOOKS:
1. Author: Ratanlal & Dhirajlal, Indian Penal Code , Published by Lexis
Nexis, Edition: 35th , (2017)
2. Author: Dr. K. L. Vibhute, PSA Pillai’s Criminal Law, Published by
Lexis Nexis, Edition: 11th, 2012
3. Author: Prof. SN Mishra, Indian Penal Code, Published by Central Law
Publications, 7th Edition, 2016

 WEBSITE:
1. https://fedsoc.org/commentary/publications/the-mens-rea-component-
within-the-issue-of-the-over-federalization-of-crime
2. https://www.heritage.org/courts/report/the-supreme-court-mens-rea-
2008-2015
3. https://indiankanoon.org/docfragment/1906084/?big=3&formInput=me
ns%20rea%20doctypes:%20chennai
4. http://www.legalservicesindia.com/article/831/Mens-Rea-in-Statutory-
Offences.html

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5. https://www.jstor.org/action/doBasicSearch?Query=Criminal+Law.+N
ecessity+of+Mens+Rea+in+Statutory+Offences

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