Project Ipc(133).docx

UNIVERSITY OF PETROLEUM & ENERGY STUDIES COLLEGE OF LEGAL STUDIES B.A., LL.B(Hons.) SEMESTER –V ACADEMIC YEAR: 2016-17

SESSIONS: AUGUST-DECEMBER PROJECT FOR LAW OF CRIMES

State of Maharashtra v. MH George (1965) 1 SCR 123 – Case Law Analysis (LLBL211) Under the Supervision of: Anubhav Kumar

NAME: MAYANK SRIVASTAVA SAP NO:

500041270

ROLL NO:

R450214133

ACKNOWLEDGEMENT I would like to take this bright opportunity to thank all the personalities to whom I am indebted for their assistances. I am specifically thankful Indian Penal Code faculty Mr. Anubhav Kumar for his immense support and guidance; Moreover I would even like to appreciate all the resources in the Library as well as the Internet for providing me with the all the necessary materials for the completion of this IPC project. For any suggestion from teachers and counter parts are most welcome.

Mayank Srivastava

Table of contents

1 Fact of the case. 2 Identification of the issue. 3 Brief discussion of the case along with judgments. 4 Elements using in this case. 5 Judgments related to case. 6 Conclusion.

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

Identification of the issues The main issue which is identified in this project is the mens rea part which is conflicting in many areas and situations. Mens rea is not an unitary concept. Depending on the nature of the crime, mens rea may be presence or existence of intention in some cases, or requirement of knowledge in some, and negligence in some others. Thus, law has developed various levels of mens rea or intent such a negligence, recklessness, knowledge and purpose. Based on the nature of the offence, the requirements of particular statutory provisions and the object of the particular statute, the courts have to decide what is the extent or level of criminal intent that is required to convict a person of an offence. The fundamental principle of criminal liability is that there must be a wrongful act – actus reus, combined with a wrongful intention - mens rea. This principle is embodied in the maxim, actus non facit reum nisi mens sit rea meaning, 'an act does not make one guilty unless the mind is also guilty'. In juristic concept, actus reus represents the physical aspect of crime and mens res, its mental aspects, which must be criminal and co-operate with the first. Actus reus has been defined as 'such result of human conduct'. Mens rea covers a wide range of mental states and conditions, the existence of which would give a criminal hue to actus reus. Actus reus connotes an overt act, the physical result of human conduct. In order to create criminal liability, it is not sufficient that there is mens rea and an act; the actus must be reus. In other words, the act must be one that is prohibited by law. Actus reus includes negative as well as positive elements. The requirements of actus reus varies depending on the definition of the crime. Actus reus may be with reference to place, fact, time, persons, etc. This is exactly the intention of law when it stipulates that mens rea or guilty intention is the sine qua non of a criminal act and is an essential element of a crime. Intention is the conscious exercise of the mental faculties of a person to do an act, for the purpose of accomplishing or satisfying a purpose.

Brief discussion of the case along with judgments As intention is an abstract idea, it is difficult to establish it and the help is taken of surrounding facts or factors i. ii. iii.

Previous relation between the accused and the victim, any object of hostility between them. Existence of instigation, i.e. Whether accused was hired and what prompted him to commit crime; and Whether the accused had something to gain out of the whole affair.

Thus, guilty intention is always preceded by a motive or real causal factors. In R. v Prince (1875) the accused was an adult person who got an affair with a girl he believed the girl to be adult as she seems adult due to physical built up but she is near about 14 Yrs of age. They involved in relationship (physical etc.). The boy was caught and charged with the offence of Kidnapping and Rape. Court said this is a case of strict liability therefore the mens rea can't be taken as an Excuse.

Judgment The appellant Mayer Hans George, who is a German National, has been sentenced to a year's term by the leaned Presidency Magistrate, 23rd Court, Bombay, for offences under Section 23 (l-A) (a) of the Foreign Exchange Regulation Act, 1947 and 167(81) of the Sea Customs Act, 1878. Stated simply, the charge against the appellant is that he brought gold into India without the permission of the Reserve Bank of India and with intent to defraud the Government of the duty payable thereon. The facts which are relevant for the decision of this appeal are mostly admitted. The appellant boarded a Swiss Air Plane at Zurich, Switzerland, on the 27th of November 1962, holding a ticket for Manila, Phillipines. The plane touched the Santacruz-Airport, Bombay, at 6.05 a. m. on the 28th for a brief halt. Acting on previous information, two Customs Officers, Turilay and Bhappu, looked out for the appellant and not finding him in the Transit Passengers' Lounge, they boarded the plane and saw the appellant sitting solitarily in the plane. Inspector Bhappu verified the name of the appellant and asked him if he was carrying gold. The appellant, who knows and can speak in English, is stated to have indicated a 'no' by the shrug of his shoulders. Inspector Bhappu, however, felt the back of the appellant, suspected that the appellant was carrying gold on his person, off-loaded him and took him to the Customs Baggage Hall for a search. The search showed that the appellant was wearing a specially orepared jacket, having 28 compartments, which was attached to his body by adhesive tapes. In these compartments were found 34 slabs of gold weighing I Kilo each, of the total value of Rs. 3,06,000/- at the local market rate. Soon after the search, the appellant admittedly made a statement (Ex. P) which shows that he is a professional carrier of gold. It appears from the statement that the appellant was once a sailor, then a porter and is now employed by an agency to smuggle gold into various countries. The appellant has stated in Ex. P that on the occasion in question, he was asked to carry gold from Zurich to Manila on a wage of 500 German Marks and that the gold did not belong to him. It is on these facts that the appellant was charged with having brought gold into India without the requisite permission and with intent to defraud the Government of the duty payable thereon. The appellant admitted that he was carrying gold on his person, but denied, that he brought it into India or that he intended to defraud the Government by evading paying the duty. According to the appellant, he never intended to remove the fold from the airship, that the gold was on through transit from Zurich to Manila, that is to say from a place out of India to another place out of India, that by a notification dated the 25th of August 1948 the Reserve Bank of India had granted a general permission to carry gold if it was on through transit, that when he boarded the plane at Zurich on 27th November 1962 he had no knowledge, of the subsequent notification dated the 8th of November 1962 published on the 24th of November 1962 by which the Reserve Bank purported to withdraw the earlier permission and that he had no guilty intention in carrying the gold. The appellant finally stated that he was carrying gold on his person partly as a measure of safety and partly as a measure of economy to save freight and insurance charges. The learned Presidency Magistrate has held that the appellant must be deemed to have had notice of the notification dated the 8th of November 1962 which was published in the Government Gazette on the 24th of November 1962, that the appellant was carrying gold contrary to the terms of that notification, that the appellant had cancelled the gold on his person with intent to defraud the Government of the duty payable on the gold and that, therefore, the appellant had committed the two offences of which he was charged. This appeal is directed against the order of conviction and the concurrent sentence of one year. Mr. Sorabjee, who appears on behalf of the appellant, has raised three principal contentions, the first of which relates to the construction of the notification dated the 8th of November 1962. The argument of the learned

Counsel is that the general permission which was granted by the Reserve Bank in 1948 to carry gold on through transit remains unaffected by the subsequent notification in case in which the gold is carried on person or as a part of personal baggage. It is necessary, for a proper appreciation of this contention, to refer to the relevant provisions of the Foreign Exchange Regulation Act (Act VII of 1947) and to set out the notifications issued by the Reserve Bank of India, permitting the import of gold under stated qualifications. The court in this case held that the very object and purpose of the Act and its effectiveness as an instrument for the prevention of smuggling would be entirely frustrated, if condition of mens rea were to be read into the plain reading of the enactment. Therefore the accused M H George was convicted.

Elements of using in this case Mens Rea in the Indian Penal Code Under the IPC, guilt in respect of almost all the offences is fastened either on the ground of intention, or knowledge or reason to believe. 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. For framing a charge for an offence under the IPC, the traditional rule of existence of mens rea is to be followed. Chapter IV of the Code deals with General Exceptions, wherein acts which otherwise could constitute offences, cease to be so under certain circumstances. However, this general or traditional rule that mens rea is an essential element in IPC offences is not without its exceptions. Like all other statutes, the deciding factor on whether mens rea is required or not, depends on the language of statute and the intention of the legislature as gathered from the statute. Negligence as Mens Rea Mens rea is not an unitary concept. Depending on the nature of the crime, mens rea may be presence or existence of intention in some cases, or requirement of knowledge in some, and negligence in some others. Thus, law has developed various levels of mens rea or intent such a negligence, recklessness, knowledge and purpose. Based on the nature of the offence, the requirements of particular statutory provisions and the object of the particular statute, the courts have to decide what is the extent or level of criminal intent that is required to convict a person of an offence. In R vs. Wheals & Stock Mr. Wheals a person of very little education, want divorce from her wife. He asked solicitor for the purpose. One day when he was enjoying holiday, received some papers as required to be signed by him in order to file the divorce case. He signed them and sent back to solicitor, believing that he got divorced. He entered into marriage with Ms. Stock. His first wife filed a case of Bigamy against him. He pleaded before the court that he was not aware of the facts as he is a person of very little education and he had no mens rea . Held by the court that Bigamy is an offence under the rule of 'Mala in Se' and can not be tolerated by the state and he was held liable.

Mens rea when not essential (Strict Liability) Although mens rea is a sacrosanct principle of criminal law, it can be waived in certain circumstances. There are some special circumstances under which the law imposes a strict or absolute liability, and such cases may be treated as exception to the doctrine of mens rea. Or it can be said that mens rea is an exception to the maxim 'actus non facit reum, nisi mens sit rea. But the principle of strict liability cannot be imposed upon those people who are generally excepted ( like insane, child, etc.)The following are the exceptional cases in which mens rea is not required in criminal law: 1- Language of the Statute and subject matter of legislation: - Language of the Statute and the intention of the legislation as gathered from statute shows whether the act imposes the strict liability or there is a requirement of mens rea in order to prosecute a accused person. This could be established by the following two modes :-(a) Express Words :- Whether language of the statute expressly gives indication regarding the requirement of the mens rea or not.(b) Fair Implication :- If it is not clearly expressed in the statute then the language of the statute should be observed that what kind of liability it intend to impose. 2- Nature of the act: - Involving acts that are in real sense not criminal in nature, they are quasi-criminal in nature. They are prohibited in public interest. It includes public welfare offence. They are called as white collar crimes. Committed by persons at high position e.g. Crime relating foods and drugs weights and packages etc. 3- Mens rea is not essential in respect of certain offence in I.P.C. Where the nature of offence is such that in commission bring a very serious damage to the society which cannot be compensated e.g. kidnapping, counterfeiting coins, etc. 4- When it is difficult to prove mens rea, where the penalties are petty fines and where a statute has done away with the necessity of mens rea on the basis of expediency, strict liability in criminal law may be imposed, e.g. Violation of traffic rules. 5- Cases of Public Nuisance:-Under this head comes lible, defamation where intention of defamer is not real required. 6- Cases in which although the proceedings are of criminal form but civil rights are to be enforced. E.g. Rights of property is infringed by a trespasser, trespasser will be prosecuted. 7- Another exception that might be mentioned here is related to the maxim “Ignorance of the law is no excuse”. Jurisdiction of these exceptions These are the cases where we regulate certain activities as far as regulation of those activities is concerned it is possible only when we deal with them strictly the approach is not to punish but to ensure that the duty is carried out responsibly such regulations are enacted to protect and preserve social interest of the community. If concession is given we will not be in a position to achieve the objective.

In order to determine whether to use doctrine of strict liability or prinicple of mens rea the following points should be considered :1- Language of the Statute. 2- Policy behind the statute. 3- By examining as to how far the statute would differ by adherence to the principle of mens rea. Burden of Proof When a clause for presumption of mens rea exists in the statute, then the job of the prosecution is only 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 a rebuttable presumption, i.e., 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 of the accused 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. Public Welfare Offences and Mens Rea In the last few decades, an entire range of social or public welfare legislation has been conceived in such a manner that the law makes the mere omission of commission of acts punishable. In other words, no mens rea is required.It must be appreciated that one is living in a world of machines. Very often, these machines are dangerous and may pose a health hazard to the worker and persons residing in and around that area. So, it is in the interest of larger good that there are laws, which lay down standards and regulate the functioning of the industries. For instance, the Factories Act 1948. This Act is labour welfare legislation. The management of the factory is responsible to comply with the provisions of the Act and they are liable for breach, even if there is no mens rea or guilty mind. There are a host of other labour laws for which mens rea may not be necessary. The legislature is well within its power to legislate that in respect of a particular offence, the existence of mens rea is not an essential requirement.

Judgments related to cases Further in R vs. Tolson(1889) Tolson got married in. After 1 Yr. Mr. Tolson became missing there was no information about him for seven years. Mrs. Tolson waited for her husband during this period. Elder brother of Tolson told her that he has gone in vessel and it was sunk. So she decided to marry again as she believed vessel was lost and he is dead. Tolson came back when his wife get married again. He filed a case against her. In this case the court held that, “Although, prime facie and as a general rule, there must be a mind at fault before there can be a crime, it is not an inflexible rule, and a statute may relate to such a subject-matter and may be so framed as to make an act criminal whether there has been any intention to

break the law or otherwise to do wrong or not.” After considering the plight and circumstances during the period of 7 Yrs. of the wife they acquitted the wife from charges. In the case of Lim Chin Aik v. Queen the Privy Council reviewed the entire law of the Immigration Ordinance of the State of Singapore. The Minister made an order under the powers conferred by the Ordinance in an instance of the exercise of delegated legislation, prohibiting the appellant from entering the colony and forwarded it to the Immigration Officer. There was no evidence that the order had in fact come to the notice of attention of the appellant. He was prosecuted for contravention of the Ordinance. On a review of the case on the subject and the principles enunciated therein, the Judicial Committee came to the conclusion that 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, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim. Another reference was of Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh Co. carries on the business of carriage of goods and passengers by sea, owns a fleet of ships. On its route a vessel arrived at Calcutta. On a search it was found that a hole was covered with a piece of wood, when the hole was opened a large quantity of gold was discovered. Custom Authorities ceased the vessel. One of the contentions raised was that S 52 A of Sea Custom Act. Under that section no vessel constructed, adapted, altered or fitted for the purpose of concealing goods shall enter, or be within, the limits of any port in India, or the Indian customs waters. The Court in construing the scheme and object of the Sea Custom Act came to the conclusion of the offence, as, if that was so, the statute would become a dead letter. That decision was given on the basis of the clear object of the statute and on a construction of the provisions of that statute which implemented the said object.

Conclusion To conclude, it can be said that the rules in courts regarding where and how to use the presumption requiring mens rea have been developing since quite a long time. In fact, courts have formed their own rules regarding application of the presumption in normal cases, statutory offences, and even on when not to use the presumption in statutory offences. But, still, at times, conflicts of thoughts do occur on whether to apply it or not. In such a situation, it would be pretty appropriate to cite a judgment of the Supreme Court regarding the implied exclusion of mens rea in Section 7 of the Essential Commodities Act, 1955, in the case of Nathulal v. State of Madhya Pradesh. 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.”