The administration of justice is the pro

Criminal jurisprudence
Dhanashri M.Chougale @ Kadam.

1. Administration of justice
 What is Administration of
justice?
 Introduction -
 When we think of Criminal
Jurisprudence, we have to think
of the society to which we
belong, because law which is
based on human behavior
varies from society to society.

 All the same present day
civilization leads to a common
goal of protecting human rights
so that there would be peaceful
co-existence and each human
being can have a sense of
security that during his life time
he will live comfortably with
dignity.
PROTECTING

 All laws tend towards the same. This gives rise to the behavior of
man towards others I.e. what he ought to do and what he ought not
to.

Meaning of Administration of justice
 Administration - Administration means management,
 the control or the act of managing something, for example a system, an organization or a business.
 Justice - Justice means to right and equitable(fair and impartial.) implication,
 the fair treatment of people,
 the quality of being fair or reasonable.
Administration of justice - By the administration of justice is meant the maintenance of right
with in a political community by means of the physical force of the state.
For sound administration of justice, physical force of the state is prime requirement.

Definitions to Administration of Justice
 According to Lord Bryce; - “There isn’t any better test of the excellence of a
government than the efficiency of its judicial system”.
 According to George Washington; - “Administration of justice is the
firmest pillar of government. Law exists to bind together the community.”
 According to Salmond; - “Law is the body of principles recognized and
applied by the State in the administration of justice”.

Necessity of Administration of Justice
1). For uniformity.
2). For protection of rights.
3). For peace and stability.
4). For integration of Society.
5). To check Injustice.
6). For smooth running of State.
7). To avoid Lawlessness.
8). To promote equity.
9). To ensure Rule of Law.

Historical Background of Administration of Justice
 The origin of the administration of justice is as old as Man. In primitive stages man used
to redress his wrongs violently by self-help or with the help of his friends or kinsmen.
 As society developed and civilization advanced, quarrels between rival factions were
settled by the elder men. In the beginning, this function was exercised by elder but later
by persons of position, influence and social status.
 At the latest stage of society the King, being the head of justice, administered justice
through appointed jurists. In modern times this function is performed by Magistrates and
Judges appointed by the State.

 Thus, administration of justice passed through three stages.
 The first and primary stage was the period of self-help,
 the second and transitional stage was the period of social force,
 and the third and final stage has been the period of State control.

Differences between civil and criminal justice
Civil justice Criminal justice
1. Civil Law is a general law which solves disputes
between 2 organizations or individuals. As per
Civil Law the wrongdoer will have to
compensate the affected organization or
individual.
1. Criminal Law deals with offences that are
committed against the society. It meets out
varying degrees of punishment in proportion with
the crime committed.
2. Civil Law deals with Property, Money, Housing,
Divorce, custody of a child in the event of divorce
etc.
2. Criminal Law will deal with serious crimes such
as murder, rapes, robbery, assault etc.

Civil justice Criminal justice
3. Civil Law is initiated by the aggrieved individual
or organization or also known as ‘plaintiff.’
3. The Government files the petition in case of
criminal law.
4. In case of Civil Law, to start a case, the aggrieved
party needs to file a case in the Court or Tribunal.
4. As per Criminal Law, to start a case, a petition
cannot be filed directly in a court, rather the
complaint should be first registered with the police,
and the crime needs to be investigated by the Police.
Thereafter a case can be filed in the court.
5. The objective of Civil Law is to protect the rights
of an individual or organization and make sure that
he or the concerned organization receives the
compensation for the wrongs that they have
suffered.
5. The purpose of Criminal Law is to punish the
wrongdoers and protect society, maintain law and
order.

6. In Civil Law, the wrongdoer gets sued by the
complainant or the aggrieved party.
6. In Criminal Law, the accused person will be
prosecuted in the court of law.
7. In the case of Civil Law, there is no punishment
like Criminal Law, but the aggrieved party receives
the compensation and the dispute gets settled.
7. In the case of Criminal Law, punishment is meted
out as per the seriousness of the criminal offence
committed or a fine could be imposed.
8. In Civil Law cases, the defendant is considered to
be either liable or not liable.
8. In Criminal Law parlance, the defendant is
considered either guilty or not guilty by the court.
9. In the case of Civil Law, the power of the court is
to pass judgment or injunction to compensate for
damages caused to the aggrieved party.
9. In the case of Criminal Law, the powers of the court
are charging a fine, imprisonment to the guilty of a
crime, or discharge of the defendant.

Elements of criminal liability

Nature of Criminal Liability
 Meaning –
 responsibility for any illegal behavior that causes harm or damage to someone or
something.
 Criminal liability refers to responsibility for a crime and the penalty, that society
imposes for the crime. Because crimes cause harm to society as a whole in addition to
the victim, prosecutor brings charges against the offender on behalf of its citizens.
 A person can be found liable for a crime if the prosecution proves that the person
committed the criminal act and had the required intent to hold the person accountable.

 Salmond defines liability as, the bond of necessity that exists
between the wrongdoer and the remedy of the wrong.
 The task of law is not finished only by laying down rights and duties;
it ensures their protection, enforcement and redress also.
 Therefore, liability is a very important part of the study of law.

 Remedial and Penal liability
 The liability can be classified as penal and remedial. This distinction has been made on the basis of the
legal consequences of the action against the wrong, if after a successful proceeding the defendant is
ordered to pay damages or to pay a debt, or to make a specific performance etc., the liability is
called remedial liability.
 When after a successful proceeding the wrongdoer is awarded punishment which may be the fine,
imprisonment, etc., it is called penal liability.
 The civil liability is generally remedial and the criminal liability is penal. But this is not always true. As
pointed out earlier, the civil liability in some cases is penal. Therefore, civil liability is remedial and penal
both. So far as criminal liability is concerned, with the very few exceptions, it is always penal.

“Actus non facit reum, nisi mens sit rea”
 “Actus non facit reum, nisi mens sit rea” is the famous Maxim of Criminal Law. It means the act alone
does not amount to guilt, it must be accompanied by a guilty mind, Mere commitment of offense is not
enough but it has to be proved that the offense was committed with "guilty mind".
 Example - If a while playing cricket a person is hit by a ball and dies, a person hitting the ball cannot be
charged with murder as there was no mens rea.
 it is considered to be the condition of penal liability. Thus, there are two conditions of penal liability :
 1. Act or actus reus
 2. Guilty mind or mens rea.

 1. Act or actus reus
 Austin defines act as a movement of the will'.
 It is bodily movement caused by volition, a volition being a desire for a bodily movement which is
immediately followed by such movement provided the bodily member is in a normal condition.
 act is a willed movement of the body.
 Salmond takes act in a wider sense. He says: “We mean by it (act) any event which is subject to the
control of human will'. Salmond's use of the word event is of great significance. Event is not an act in
the strict sense nor is movement, but Salmond by act means those events which are subject to the
control of human will.

 In law, crime consists of two elements - actus reus and mens rea. The former represents the
physical aspect of crime and latter represents its mental aspects.
 Actus reus has been defined as such result of human conduct as the law seeks to prevent. An
act may be positive or negative (omission). A wrong-doer either does that which he ought not
to do or omits to do that which he ought to do.
 An acts may either be internal or external. The former are acts of the mind, while the latter
are acts of the body. To think is an internal act, to speak is an external act. Every external act
involves more or less an internal act, which is related to it, although the converse is not always
true.

 An act may be intentional or unintentional. An act is said to be intended or intentional, when it is the
outcome of a determination of the person's will directed to the end. It is intentional, when it is foreseen and
desired by the doer. It is unintentional, when it is not the result of any determination of the will and when it is
not desired. Whether it is an intentional or unintentional act, it may be internal or it may be external; it may be
also positive or negative.
 An act consists of three stages:
 1. Its origin in some mental or bodily activity or passivity of the doer.
 2. Its circumstances
 3. Its consequences.
 Mens rea covers a wide range of mental states and conditions, the existence of which would give a criminal
shade to actual reus.

 There might be act without mens rea. Thus, for example, if an infant
of 2 years while playing with a loaded pistol lets it go and kills another
person, there is actus reus without mens rea.
 There might also be mens rea without actus reus. In ethics or religion
an evil deed may be committed in mind and might constitute a wrong,
even though it has not manifested itself in physical conduct.

Mens Rea
 Mens Rea is a well settled principle of common law in England. In every
statutory offence, Mens Rea is an essential ingredient. It is presumed that
the wrong-doer did the offence with an ill intention.
 The prosecution must prove the ill intention (Mens Rea) of the accused to
prove the offence committed. Only in the cases where the applicability of
Mens Rea is excluded by the Statutes, then only it can be exempted.

Exception to the Mens rea
 Only in few exceptional circumstances the doctrine of Mens Rea is
excluded. Some of them are:
1. Public Nuisance, - the exception to the doctrine of mens rea is in case
of public nuisance. In the interest of public safety, strict liability must
be imposed. Whether a person causes public nuisance with guilty
mind or without guilty mind, he must be punishable.

2. Strict Liability –
Even though there is no guilty mind the person is held responsible for the act. Only some
special statute creates those liabilities. offences against Public Health for which such strict
or absolute liability is imposed, for example-Essential Commodities Act, Food and Drug Act,
Consumer Protection Act etc.
Example: 1. Environmental Pollution cases, The Court do not enquire into the Mens Rea of an
industrialist who Negligently pollutes the environment and releases hazardous and
noxious effluents into the atmosphere and causes danger and harm to the public at large .
2. deficiency of services under Consumer Protection Laws etc. The manufacturer or occupier
supplies the defective goods or services and causes the injury to the consumers.

3. When it is difficult to prove Mens Rea –
Another exception to the doctrine Mens rea is where it is difficult to prove mens
rea and penalties are petty fines A statute may do away with the necessity of
Mens rea on the basis of expediency. In such petty cases, speedy disposal of cases
is necessary and the proving of mens rea is not easy. An accused may be fined
even without any proof of Mens Rea.
Cases, which are not criminal in nature, but are prohibited in the interest of public
at large .

4. Ignorance of Law no excuse -
Ignorance of law is no excuse. It is presumed that everybody knows
the law of land. The principle of ignorantia juris non excusat is
followed in almost all legal systems. This is an irrebuttable
presumption that every person knows the law of the land.
5. Cases of criminal nature, but are proceedings conducted in the
courts as civil proceedings and safeguard the civil rights of
citizens.

This maxim has been applied to all common law crimes in England without any reservations. Its application to
statutory offences was however uncertain upto 1947. There were to prominent case-laws leading the
Doctrine of Mens Rea. One is R. Vs. Prince and another R. Vs. Tolson.
*R. vs. PRINCE (1875)
Brief Facts: Henry Prince loved Annie Philips an unmarried minor girl. He took away her with an intention to
marry her. The father of girl reported to the police against Henry Prince alleging that Prince had illegally
taken away his minor girl, below the age of 16 years. The Police arrested Henry Prince and filed criminal
proceedings against him. Henry Prince was tried for having unlawfully taken away an unmarried girl below
the age of 16 years, out of the lawful possession and against the will of her father/the natural guardian. The
accused contended that he was under the belief that she completed 18 years. He also contended that the girl
herself told him about her age more than 18 years. The accused also argued that he had no mens rea (ill
intention).

 Judgment: Jury found upon evidence that before the defendant took
her away the girl had told him that she was 18. However Jury held that
the accused's belief about the age of the girl was no defence.
 It was argued that the statute did not insist on the knowledge of the
accused that the girl was under 16 as necessary for conviction, the
Doctrine of Mens Rea, should nevertheless, be applied and conviction be
set aside in the options of criminal intention. 16 Judges tried the case
and all but one collectively held Henry Prince was guilty of kidnapping.

 #R. vs. Tolson (1889)
 Brief Acts: The accused was tried under Section 57 of the Offences Against the Persons Act, 1861 (similar
provision in India is Section 494 of the Indian Penal Code, 1860) for having committed the offence of bigamy.
Under that section, it was an offence for a married person to contract a second marriage during the life time of
the husband or wife, as the case may be. In this case, Mrs. Tolson married in 1880. In 1881, Mr. Tolson deserted
her and went away. She made all possible enquiries about him and ultimately came to know that her husband
Mr. Tolson died in a ship accident in America. Therefore, supposing herself to be a widow, she married another
man in 1887. The whole story was known to the second husband and the marriage was not a secrecy. In the
meantime, Mr. Tolson suddenly re-appeared and prosecuted Mrs. Tolson for bigamy. In the trial Court, she was
convicted for imprisonment on the ground that a belief in good faith and on reasonable facts about the death
of husband were no defence to the charge of bigamy. She appealed to the Court of Appeal. The question before
the Court of Appeal was whether Mrs. Tolson had guilty intention (mens rea) in committing the offence of
bigamy.

 Judgment: The Court of Appeal by majority set asided the conviction
on the ground that a bona fide belief about the death of the first
husband at the time of second marriage was a good defence in the
offence of bigamy. It also opined that the statutory limitation for the
second marriage of seven years was completed at the time of her
second marriage and she informed the real facts to the second
husband. Hence it acquitted the accused.

MENS REA UNDER IPC
 Technically the Doctrine of Mens Rea is not applied to the offences under the Indian Penal
Code. Here it is Wholly out of place In the Indian Penal code, 1860.
 Every offence is defined very clearly. The definition not only states what accused might have
done, that also states about the state of his mind, with regard to the act when he was doing it.
Each definition of the offence is complete in itself.
 The words “mens rea” are not used any where in the Indian Penal Code, However the framers
of the Code used the equivalent words to those of mens rea in the Code very frequently.

 Such expressions are
 Fraudulently (Section 25);
 Dishonestly (Section 24),
 Voluntarily (Section 39).
 Intentionally; etc
 Moreover in Indian Penal Code, a separate Chapter (Chapter-IV) on General Exceptions is
provided. Chapter. - IV (Ss. 76 to 106) explains the circumstances, where options of criminal
intent may be presumed. Comparing with English Law, Mens Rea has been applied by Indian
Courts, and it is now firmly settled law that Mens Rea is an essential ingredient of offence.

 In Sankaran Sukumaran vs. Krishnan Saraswathi (1984 CrLJ 317), the Supreme
Court held that Mens Rea is an essential ingredient of the offence under Section
494 (Bigamy), where the second marriage has been entered into in a bona fide
belief that the first marriage was not subsisting, no offence under Section 494 is
committed.
 In C. Veerudu vs. State of Andhra Pradesh, 1989 CRLJ 52 (AP), the Supreme
Court held that Mens Rea is an essential ingredient of the offence under Section
498-A. Cruelty in Section 498-A means “willful conduct”. Cruelty by husband or
relatives of husband against a wife includes willful conduct. Willful conduct
includes Mens Rea.

 Section 24 of IPC 1860
 “Dishonestly”.—Whoever does anything with the intention of causing
wrongful gain to one person or wrongful loss to another person, is said to
do that thing “dishonestly”.
 Whoever does anything
 with the intention of causing wrongful gain
 to one person or
 wrongful loss to another person,
 is said to do that thing “dishonestly”.

 “Wrongful gain”.—“Wrongful gain” is gain by unlawful means of property to which the person gaining is not legally
entitled.
 Wrongful gain” is gain
 by unlawful means of property
 to which the person gaining
 is not legally entitled.
 “Wrongful loss”.—“Wrongful loss” is the loss by unlawful means of property to which the person losing it is legally
entitled.
 Wrongful loss” is the loss
 by unlawful means of property
 to which the person losing it
 is legally entitled.

 Gaining wrongfully/Losing wrongfully.—A person is said to gain wrongfully when such
person retains wrongfully, as well as when such person acquires wrongfully. A person is said
to lose wrongfully when such person is wrongfully kept out of any property, as well as when
such person is wrongfully deprived of property.
 A person is said to gain wrongfully
 when such person retains wrongfully,
 as well as when such person acquires wrongfully.
 A person is said to lose wrongfully
 when such person is wrongfully kept out of any property,
 as well as when such person is wrongfully deprived of property.

 “Fraudulently”.—A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise.
 A person is said to do a thing fraudulently
 if he does that thing
 with intent to defraud
 but not otherwise.
 “Voluntarily”.—A person is said to cause an effect “voluntarily” when he causes it by means whereby he intended to cause it, or
by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it.
 A person is said to cause an effect “voluntarily”
 when he causes it
 by means whereby he intended to cause it,
 or by means which, at the time of employing those means,
 he knew or had reason to believe to be likely to cause it.

Mens and its importance
 As a general rule every crime requires a mental element, the nature of which will depend upon the definition of the particular crime in question. Even in
crimes of strict liability some mental element is required.
 Expressions connoting the requirement of a mental element include:
 ‘with intent’,
 ‘recklessly’,
 ‘unlawfully’,
 ‘maliciously’,
 ‘willfully’,
 ‘knowingly’,
 ‘knowing or believing’,
 ‘fraudulently’,
 ‘dishonestly’,
 ‘corruptly’,
 ‘allowing’, and
 ‘permitting’

 Each of these expressions is capable of bearing a meaning, which
differs from that ascribed to any other. The meaning of each must be
determined in the context in which it appears, and the same expression
may bear a different meaning in different contexts.
 Under the IPC, guilt in respect of almost all offences is fastened either
on the ground of intention or knowledge or reason to believe.

 All the offences under the Code are qualified by one or the other words such as wrongful
gain or wrongful loss, dishonestly, fraudulently, reason to believe, criminal
knowledge or intention, intentional co-operation, voluntarily, malignantly, wantonly.
 All these words describe the mental condition required at the time of commission of the
offence, in order to constitute an offence. Thus, though the word mens rea as such is
nowhere found in the IPC, its essence is reflected in almost all the provisions of the code.
 The existence of the mental element or guilty mind or mens rea at the time of commission
of the actus reus or the act alone will make the act an offence.

 concepts such as those of intention, recklessness and knowledge are commonly
used as the basis for criminal liability and in some respects may be said to be
fundamental to it:
 Intention:
 To intend is to have in mind a fixed purpose to reach a desired objective;
 it is used to denote the state of mind of a man who not only foresees but also
desires the possible consequences of his conduct.

 The idea of ‘intention’ in law is not always expressed by the words ‘intention’,
‘intentionally’ or ‘with intent to’. It is expressed also by words such as ‘voluntarily’,
‘willfully’ or ‘deliberately’ etc.
 Example - Section 298 IPC makes the uttering of words or making gestures with
deliberate intent to wound the religious feelings punishable under the Act. on a
plain reading of the section, the words ‘deliberate’ and ‘intent’ seem synonymous.
 Intention does not mean ultimate aim and object. Nor is it a synonym for motive.

 Transferred intention:
 Where a person intends to commit a particular crime and brings about the
elements which constitute that crime, he may be convicted notwithstanding that
the crime takes effect in a manner which was un-intended or unforeseen.
 Example - A, intends to kill B by poisoning. A places a glass of milk with poison on
the table of B knowing that at the time of going to bed B takes glass of milk. On that
night instead of B, C enters the bedroom of B and takes the glass of milk and dies in
consequence. A is liable for the killing of C under the principle of transferred
intention or malice.

 Intention and Motive:
 Intention and motive are often confused as being one and the same. The two, however, are distinct
and have to be distinguished. The mental element of a crime ordinarily involves no reference to
motive.
 Motive is something which prompts a man to form an intention.
 Intention has been defined as the fixed direction of the mind to a particular object.
 Sometimes, motive plays an important role and becomes a compelling force to commit a crime and,
therefore, motive behind the crime become a relevant factor for knowing the intention of a person.

 In Om Prakash v. State of Uttranchal [(2003) 1 SCC 648]
 and State of UP v. Arun Kumar Gupta [(2003) 2 SCC 202]
 It needs to be emphasized that motive is not an essential element of
an offence but motive helps us to know the intention of a person.
Motive is relevant and important on the question of intention.

 Intention and knowledge:
 The terms ‘intention’ and ‘knowledge’ which denote mens rea appear in Sections 299 and 300,
having different consequences.
 Intention and knowledge are used as alternate ingredients to constitute the offence of culpable
homicide.
 However, intention and knowledge are two different things. Intention is the desire to achieve a
certain purpose while knowledge is awareness on the part of the person concerned of the
consequence of his act of omission or commission, indicating his state of mind.

 The demarcating line between knowledge and intention is no doubt thin, but it is not
difficult to perceive that they indicate different things. There may be knowledge of the likely
consequences without any intention to cause the consequences.
 Example, a mother jumps into a well along with her child in her arms to save herself and
her child from the cruelty of her husband. The child dies but the mother survives. The act of
the mother is culpable homicide. She might not have intended to cause death of the child
but, as a person having prudent mind, which law assumes every person to have, she ought
to have known that jumping into the well along with the child was likely to cause the death
of the child. She ought to have known as prudent member of the society that her act was
likely to cause death even when she may not have intended to cause the death of the child.

 Negligence:
 If anything is done without any advertence to the consequent event or result, the mental state in
such situation signifies negligence.
 The word ‘negligence’, therefore, is used to denote blameworthy inadvertence. It should be
recognized that at common law there is no criminal liability for harm thus caused by
inadvertence.
 Strictly speaking, negligence may not be a form of mens rea. It is more in the nature of a legal
fault. However, it is made punishable for a utilitarian purpose of hoping to improve people’s
standards of behavior.

 Criminal liability for negligence is exceptional at common law; manslaughter appears to be the only common law
crime, which may result from negligence. Crimes of negligence may be created by statute, and a statute may
provide that it is a defence to charges brought under its provisions for the accused to prove that he was not
negligent.
 Conversely, negligence with regard to some subsidiary element in the actus reus of a crime may deprive the
accused of a statutory defence which would otherwise have been available to him.
 Advertent negligence is commonly termed as willful negligence or recklessness. In other words, inadvertent
negligence may be distinguished as simple. In the former the harm done is foreseen as possible or probable but it
is not willed. In the latter it is neither foreseen nor willed. In each case carelessness, i.e. to say indifference as to
the consequences, is present; but in the former this indifference does not, while in the latter it does prevent these
consequences from being foreseen.

 The physician who treats a patient improperly through ignorance or forgetfulness is guilty of simple or
inadvertent negligence; but if he does the same in order to save himself trouble, or by way of a scientific
experiment with full recognition of the danger so incurred, his negligence is willful.
 It may be important to state here that the willful wrong doer is liable because he desires to do the harm;
the negligent wrong doer is liable because he does not sufficiently desire to avoid it. He who will excuse
himself on the ground that he meant no evil is still open to the reply: - perhaps you did not, but at all
event you might have avoided it if you had sufficiently desire to do so; and you are held liable not because
you desired the mischief, but because you were careless and indifferent whether it ensured or not.
 It is on this ground that negligence is treated as a form of mens rea, standing side by side with wrongful
intention as a formal ground of responsibility.

 Injury to Human Being:
 The fourth element, is an injury to another human being or to society at large. This injury to another
human being should be illegally caused to any person in body, mind, reputation or property.
 Therefore, it becomes clear that the consequences of harmful conduct may not only cause a bodily harm
to another person, it may cause harm to his mind or to his property or to his reputation.
 Sometimes, by a harmful conduct no injury is caused to another human being, yet the act may be held
liable as a crime, because in such a case harm is caused to the society at large.
 All the public offences, especially offences against the state, e.g. treason, sedition, etc. are instances of
such harms. They are treated to be very grave offences and punished very severely also.

 We may state again that there are four essential elements that go to constitute a crime.
 First, the wrongdoer who must be a human being and must have the capacity to commit a crime, so that he may be a
fit subject for the infliction of an appropriate punishment.
 Secondly, there should be an evil intent or mens rea on the part of such human being. This is also known as the
subjective element of a crime.
 Thirdly, there should be an actus reus, i.e. an act committed or omitted in furtherance of such evil intent or mens rea.
This may be called the objective element of a crime.
 Lastly, as a result of the conduct of the human being acting with an evil mind, an injury should have been caused to
another human being or to the society at large.

 Such an injury should have been caused to any other person in body, mind, reputation or property.
 If all these elements are present, generally, we would say that a crime has been constituted. However, in
some cases we find that a crime is constituted, although there is no mens rea at all. These are known as cases
of strict liability.
 Then again, in some cases a crime is constituted, although the actus reus has not consummated and no injury
has resulted to any person. Such cases are known as inchoate crimes, like attempt, abetment or conspiracy.
So also, a crime may be constituted where only the first two elements are present.
 In other words, when there is intention alone or even in some cases there may be an assembly alone of the
persons without any intention at all. These are exceptional cases of very serious crimes which are taken
notice of by the state in the larger interests of the peace and tranquility of the society.

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