Criminal Jurisprudence Notes | LL.M. Semester 1 | Mumbai University | munotes

Kenny. In Outlines of Criminal Law he defined crimes as wrongs whose sanction is punitive and is in no way remissible by any private person, but is remissible by the Crown alone if remissible at all.

Kenny is describing the machinery rather than the conduct, which is progress, and the modern law shows why he was right to look there. But even this fails at the edges: many Indian offences are compoundable, meaning the victim may compromise them with the court's permission, so the sanction is in a real sense remissible by a private person.

Halsbury. Halsbury's Laws of England defines a crime as an unlawful act or default which is an offence against the public and renders the person guilty of it liable to legal punishment.

This is the most honest of the four because it is nearly circular, and being nearly circular is the correct answer. It says that a crime is what the law punishes as a crime.

The Sanhita's own definition

The Bharatiya Nyaya Sanhita, 2023 is India's general criminal statute, in force from 1 July 2024 in place of the Indian Penal Code, 1860. It does not define crime. It defines offence, which is the word it actually uses, and the definition is in section 2(24).

The word "offence" means, with the exceptions the clause lists, a thing made punishable by this Sanhita. In Chapter III, which holds the General Exceptions, and in a list of named sections, it means a thing punishable under the Sanhita or under any special law or local law; and in another shorter list it reaches an act punishable under a special or local law only where that law punishes it with imprisonment for six months or more.

Read that first limb again, because it is the whole point. A thing made punishable by this Sanhita. The definition is formal. It does not say what kind of thing, or why. It says only that the legislature has attached punishment to it.

Why the formal definition is the right one

Three consequences follow, and each of them is examinable.

The catalogue is a policy instrument. If an offence is an offence because the legislature says so, then the list of offences is a list of choices, and the choices can be revisited. That is the entire subject of Module IV. Decriminalisation is not a paradox; it is the ordinary working of a formal definition.

Nothing is a crime by its nature. The old distinction between conduct wrong in itself and conduct wrong only because prohibited survives as a way of describing the moral weight of an offence. It does not survive as a test of whether something is an offence.

The definition of the offence is where the answer lives. Because there is no general test, every criminal question is answered by reading the particular provision that creates the particular offence. A student who has learnt this early stops looking for a shortcut.

Worked example

Ravi runs a small dairy in Thane. He waters the milk he sells. Anjali, who buys it, falls ill.

Is watering milk a crime? Not because it is dishonest, and not because it disgusts anybody. It is a crime if and only if a provision makes it punishable. Under the Sanhita, adulteration of food or drink intended for sale is an offence; under the food safety legislation it is separately punishable. Ravi's liability is found by reading those provisions, not by asking whether his conduct was wrong.

Is it also a civil wrong? Yes, and independently. Anjali may sue him for the harm and may complain as a consumer. The same conduct sits in two systems at once, and neither answer decides the other.

Suppose the legislature repeals the provision tomorrow. Then from the date of repeal the same conduct is not a crime, though it remains a civil wrong and remains, to most people, wrong. That is the formal definition doing its work, and it is exactly what happened to adultery in 2018.

And suppose Ravi is prosecuted and Anjali forgives him. Her forgiveness does not end the prosecution unless the offence is one the law allows to be compounded. The case is the State's, not hers, and that is Kenny's point.

What it does NOT mean

A crime is not simply an immoral act. Stephen's definition is quotable and wrong, and an answer that gives only Stephen has given the weakest of the four.

A crime is not defined by its seriousness. The Sanhita punishes both murder and a public nuisance, and both are offences in exactly the same sense.

A crime is not "an act against society" in any way that helps. Every crime is said to be a wrong against society, but that is a description of who prosecutes, which is the next chapter, and not a test of what is criminal.

And the word "offence" is not always used in the same sense even inside one statute. Section 2(24) itself carries two exceptions, so a student who quotes only the first limb has quoted a third of the definition.

Quick revision

• A crime is conduct the State has forbidden on pain of punishment. There is no test based on the content of the conduct.
• Blackstone: violation of a public law forbidding or commanding an act. Too wide, and "public" is undefined.
• Stephen: forbidden by law and revolting to the moral sentiments of society. Fails both ways.
• Kenny: sanction punitive and not remissible by a private person. Describes the machinery; fails on compoundable offences.
• Halsbury: an unlawful act which is an offence against the public and renders the doer liable to punishment. Nearly circular, and therefore nearly right.
• Section 2(24) of the Sanhita: "offence" means a thing made punishable by this Sanhita, extended in Chapter III and named sections to a thing punishable under any special law or local law, and in a shorter list to such a law's offences carrying six months or more.
• Three consequences: the catalogue is policy, nothing is criminal by nature, and every answer is found in the particular provision.

Test yourself

1. Give the definition of "offence" in the Sanhita and say which section it is in. Section 2(24). Except in the Chapters and sections the clause names, "offence" means a thing made punishable by the Sanhita; in Chapter III and a list of named sections it means a thing punishable under the Sanhita or under any special or local law; and in a shorter list it covers a special or local law offence punishable with imprisonment for six months or more.

2. Why is Stephen's definition unsatisfactory? Because it is both too narrow and too wide. Many offences, particularly regulatory ones, revolt nobody, and much conduct that society finds revolting is not punished at all.

3. What follows from the definition being formal rather than substantive? That the content of the criminal law is chosen and can be changed, which is what makes both criminalisation and decriminalisation ordinary rather than exceptional.

4. Is every unlawful act a crime? No. A breach of contract and a tort are unlawful and are not crimes. What makes an act criminal is that a provision attaches punishment to it and that the State prosecutes for it.

The exception. Offences of strict liability, which is the subject of the whole of topic 11, dispense with the mental element for one or more elements of the offence. That is a real and growing exception, which is why the maxim is a characteristic and not a rule.

4. It is forbidden by a law in force when it was done. This is the principle of legality, and in India it is a fundamental right: no person may be convicted of an offence except for the violation of a law in force at the time of the act charged.

The exception. None. This one is constitutional and admits of no exception at all, which makes it the strongest item on the list.

5. It carries a punishment inflicted by the State. Compensation, restitution and an injunction are civil consequences. What marks the criminal law is a sanction whose purpose is to punish, and which the State alone can impose or remit.

The exception. The line has blurred. A criminal court now regularly orders compensation to the victim as part of the sentence, and some regulatory statutes impose penalties through officers rather than courts.

6. The proceeding is brought in the name of the State. The title of a criminal case is State against the accused, or in older reports Emperor or Rex. The victim is a witness, not a party, though the modern law has given the victim rights of participation and of appeal.

The exception. A complaint case may be instituted by a private person, and certain offences may be taken cognizance of only on a complaint by a particular person. But even then the prosecution, once begun, belongs to the State.

7. Its content is variable. What is criminal changes with time and with place. Attempted suicide, adultery and consensual homosexual conduct have all left the Indian criminal law within living memory, and instantaneous triple talaq entered it in 2019.

The exception. None, and this characteristic is the one that connects Module I to Module IV.

The characteristics, in a table

Worked example

The State of Maharashtra amends a law so that failing to segregate household waste becomes punishable with a fine of five hundred rupees, recoverable by a municipal officer without any prosecution.

Is it a crime? Test it against the list. There is conduct, an omission. There is a law in force. There is a sanction. But the sanction is imposed by an officer and not by a court, there is no conviction, and no guilty mind is required.

So what is the answer? It is on the boundary, and the honest answer says so. Modern regulation has produced a large class of penalties that look criminal in form and civil in operation, and where a matter falls is decided by asking whether a conviction results, whether the ordinary criminal procedure applies, and whether the consequences include the disqualifications a conviction carries.

Why does that matter to the citizen? Because if it is a criminal conviction, it must be recorded, disclosed on forms, and may bar employment; and because the constitutional protections of Module III's topic 10 attach to a criminal proceeding and not to a civil penalty.

What it does NOT mean

The characteristics are not a definition. A thing does not become a crime by having all seven, nor cease to be one by lacking two. They describe a family.

"Guilty mind" is not one of the seven in every book. Some writers put it in and some leave it out precisely because of strict liability. An answer should say which view it takes and why.

Public wrong does not mean public harm. A murder harms one family. It is a public wrong because the law treats the wrong as done to the whole community, not because the whole community suffers.

Quick revision

• Seven characteristics: public wrong; act or omission; generally a guilty mind; forbidden by a law in force; punishment by the State; proceeding in the State's name; variable content.
• The two with no exception are a law in force at the time and variable content.
• The two weakest are the guilty mind, defeated by strict liability, and the public wrong, qualified by compoundable offences.
• The examiner's marks are in the exceptions, not the list.

Test yourself

1. Which characteristic admits of no exception at all, and why? That the act must be forbidden by a law in force at the time. It is a constitutional guarantee against being convicted under a law made after the event.

2. Give one characteristic that strict liability defeats. The requirement of a guilty mind. In a strict liability offence the prosecution need prove no mental element as to at least one element of the offence.

3. If a victim forgives the accused, does the case end? Only if the offence is compoundable and the court permits, where permission is needed. Otherwise the prosecution continues, because the wrong is treated as done to the community.

4. How do the characteristics connect Module I to Module IV? Through the last of them. Because the content of the criminal law is variable, conduct can be added to it or removed from it, which is the whole subject of decriminalisation.

The prosecution is conducted by a public officer. A Public Prosecutor appears for the State. He is not the victim's lawyer and owes duties to the court that a private advocate does not.

And the case cannot be dropped by agreement alone. Some offences may be compounded, which means lawfully compromised, and the procedure statute lists which; for many of them the court's permission is needed. Everything not on that list stays alive however completely the parties have settled.

Worked example

Farhan is assaulted by Girish outside a shop in Kalyan. A bystander telephones the police. Farhan, who does not want trouble, tells the officer he has nothing to say.

Can the case still begin? Yes. Section 173 lets any person give information of a cognizable offence, and the officer records it. Farhan's reluctance is a difficulty of proof, not a bar of law.

Can Farhan withdraw the case a week later? He can decline to support it, which may cause it to fail. He cannot withdraw it, because it is not his. If the offence is one the law allows to be compounded, the parties may apply to compound it and the court will decide.

Suppose Girish pays Farhan fifty thousand rupees. That is relevant to sentence and may be relevant to compounding. It does not by itself extinguish an offence the law does not permit to be compounded.

And if the police refuse to register the information? The theory that the wrong is public is also a duty on the State, and the law provides remedies: the informant may send the substance in writing to the Superintendent of Police, and may apply to a Magistrate to direct an investigation.

What it does NOT mean

It does not mean the victim has no rights. The modern law has given the victim a right to be heard on bail, a right to a copy of the report, a right to compensation and a right of appeal against an acquittal. These are corrections to the theory, made because a system that treated the victim only as a witness was found to have forgotten them.

It does not mean a private person can never prosecute. A complaint may be made directly to a Magistrate, and some offences may be taken cognizance of only on a complaint by a specified person. But even a complaint case, once instituted, is conducted under the State's procedure and can be taken over.

And it does not mean the State always prosecutes. Prosecutorial discretion is real, and the power to withdraw from a prosecution exists, exercised by the Public Prosecutor with the court's consent.

Quick revision

• The wrong is treated as done to the community, which is why the proceeding runs in the State's name.
• The historical root is the replacement of private vengeance by the King's peace; the three modern justifications are proportion, equality and certainty.
• Section 173 of the Bharatiya Nagarik Suraksha Sanhita: information of a cognizable offence, from anyone, reduced to writing, read over and signed.
• Section 193: the report on completion of investigation, which is the charge-sheet, forwarded to the Magistrate.
• Compounding is the exception and is confined to the offences the procedure statute lists, several of them only with the court's permission.
• The victim's modern rights are corrections to the theory, not departures from it.

Test yourself

1. Who may set the criminal law in motion for a cognizable offence? Anyone. Section 173 provides for information to be given to the officer in charge of a police station by any person, and the officer must reduce it to writing.

2. Why is the victim not the party to a criminal case? Because the wrong is treated as done to the community, so the State prosecutes in its own name. The victim is in principle a witness, with statutory rights added later.

3. What is the effect of a settlement between the accused and the victim? None on the existence of the offence, unless the offence is compoundable and, where required, the court permits the composition. Otherwise the settlement goes only to sentence.

4. Name the two provisions that carry the State's control of the case from beginning to end. Section 173, which starts it by recording the information, and section 193, which ends the investigation with the report to the Magistrate.

Worked example

Devika reverses her car in a Pune housing society and injures Suresh, who is standing behind it, and damages his motorcycle.

The crime. If she drove rashly or negligently so as to endanger human life or the personal safety of others, the Sanhita makes that an offence, and causing hurt by an act done rashly or negligently is another. The State prosecutes. The question is whether her driving fell below the standard the criminal law demands, and it must be proved beyond reasonable doubt.

The civil wrong. Suresh sues in negligence for his injuries and the damage to the motorcycle, or claims before the Motor Accidents Claims Tribunal. He must prove a duty, a breach and resulting damage, on the balance of probabilities, and he recovers what he has lost.

Can both run? Yes, at the same time, in different courts, on the same facts. The criminal court may also order Devika to pay compensation as part of the sentence, and a civil court will take that into account so that Suresh is not paid twice.

Suppose she is acquitted. Suresh's claim survives. Criminal negligence is a higher standard than civil negligence, and an acquittal decides only that the higher standard was not met.

Suppose Suresh settles for two lakh rupees and gives a receipt in full. The suit ends. The prosecution does not, unless the offence is compoundable and the court permits.

Where the boundary blurs

Compensation in the criminal court. A criminal court may order the accused to pay compensation to the victim, and the Supreme Court has treated the duty to consider doing so as mandatory. That is a civil remedy administered by a criminal court.

Punitive damages. A civil court may in a narrow class of case award damages beyond the loss, which is a punitive purpose in a civil proceeding.

Regulatory penalties. Modern statutes impose money penalties through officers and tribunals, without a conviction and often without a mental element. They are neither ordinary crimes nor ordinary civil wrongs, and this class is growing.

Public law compensation. A constitutional court may award compensation for a violation of a fundamental right, which is a third remedy belonging to neither system.

What it does NOT mean

It does not mean crimes are always more serious. A large breach of contract may ruin a family; a minor offence may cost five hundred rupees.

It does not mean the victim gets nothing from a prosecution. Compensation, restitution of property and a victim compensation scheme all operate through the criminal court.

And it does not mean a person may be punished twice for the same thing. A conviction and a decree are not two punishments. The rule against double jeopardy bars a second criminal prosecution, and that is a different question, taken up in Module II.

Quick revision

• The difference is in the proceeding, not the conduct.
• Crime: State prosecutes; object is punishment; proof beyond reasonable doubt; compromise only if compoundable.
• Civil wrong: the injured person sues; object is compensation; proof on the balance of probabilities; compromise at will.
• Tort is the branch of civil wrongs independent of contract, remedied by unliquidated damages.
• The two proceedings are independent: an acquittal is no bar to a suit and a decree is no proof of guilt.
• The boundary blurs at compensation orders, punitive damages, regulatory penalties and constitutional compensation.

Test yourself

1. Give three points of distinction between a crime and a tort. The crime is a wrong against the community and the tort a wrong against an individual; the State prosecutes the crime and the injured person sues in tort; the crime must be proved beyond reasonable doubt and the tort on the balance of probabilities.

2. Can an acquitted person still be made to pay damages on the same facts? Yes. The standards of proof differ, so what could not be proved beyond reasonable doubt may still be proved on the balance of probabilities.

3. Name two places where the criminal law does something that looks civil. An order to pay compensation to the victim as part of the sentence, and restitution of property to the person entitled to it.

4. Why does the identity of the conduct not matter to the distinction? Because the same conduct routinely gives rise to both, and the categories are defined by who proceeds, on what standard, for what relief.

That is the modern Indian position, and it is the single most useful sentence a student can carry from Module I into Module IV.

Worked example

A State legislature proposes to make it an offence, punishable with six months' imprisonment, for a person to eat in public during a religious fasting month.

Is the conduct immoral? To part of the population, plainly; to another part, not at all. The circles do not coincide.

Would criminalising it be legitimate? Ask the three questions above. It is enforceable, so that objection fails. It is cheap to enforce, so that objection is weak. But it fails the third: it selects one community's morality and imposes it on everyone.

And in constitutional terms? It would have to survive articles 14, 19 and 21, and the argument would be that it imposes a disability on the ground of religion, restricts liberty without a legitimate aim, and rests on popular rather than constitutional morality.

What if the offence were framed neutrally, as eating within fifty metres of a place of worship? The neutral form does not save it if the object and effect remain the enforcement of one community's practice. Courts look at substance.

What it does NOT mean

It does not mean the criminal law is morally neutral. Every offence expresses a judgment. The argument is about which judgments the State may enforce with punishment, not about whether it makes any.

It does not mean an immoral act should never be criminal. The most serious offences are also the gravest moral wrongs, and nobody argues otherwise.

And it does not mean that decriminalising conduct approves of it. Removing the criminal sanction says that punishment is the wrong instrument. It leaves the moral question exactly where it was.

Quick revision

• Sin answers to conscience or religion; crime answers to the State.
• Three circles: immoral but not criminal, criminal but not immoral, and both.
• The overlap is limited by enforceability, cost and disagreement.
• India's rule: the criminal law may enforce constitutional morality, not popular morality. That proposition decides both the section 377 line of cases and the adultery case.
• Decriminalisation is a statement about the instrument, not about the morality.

Test yourself

1. Give one example each of an immoral act that is not a crime and a crime that is not immoral. Ingratitude to a parent is immoral and not punishable. Driving without a licence is punishable and offends no moral rule.

2. What is constitutional morality, and why does it matter here? It is the morality of the constitutional text and its guarantees, as opposed to the morality the majority happens to hold. It matters because the Supreme Court has made it the test by which a prohibition resting on popular disapproval is judged.

3. Why can the criminal law not enforce the whole of morality? Because much of morality concerns states of mind and relationships that cannot be proved in a court, because enforcement is costly, and because in a plural society enforcing one morality imposes it on those who do not share it.

4. Does decriminalisation mean the conduct is now approved? No. It means the criminal sanction has been judged the wrong response, which leaves every moral, social and civil consequence untouched.

5. Delay converts the process into the punishment. Where a trial takes ten years, the accused is punished by the process whatever the verdict, and the right to a speedy trial exists precisely because the courts recognised this.

The answer to each harm

An answer that only lists the harms has argued for abolition, which is not a defensible position. Each harm has a response, and the response is the second half of the marks.

Against permanence, the law has developed release on probation and admonition, so that a first or a young offender need not carry a conviction's full weight.

Against the damage of imprisonment, the reformative theory of punishment, the alternatives to custody, and now community service as a punishment in its own right under the Sanhita.

Against selective enforcement, decriminalisation. Where a prohibition cannot be enforced evenly it should be removed, which is the entire argument of Module IV.

Against extortion, the constitutional review of vague and overbroad offences, and the requirement that the grounds of arrest be given.

Against delay, the right to a speedy trial read into article 21, the outer limits on detention during investigation, and the statutory ceiling on how long an under-trial may be held.

Worked example

A State makes it an offence, punishable with up to one year, to keep a shop open beyond ten at night. Thousands of shops in the State do it every day.

Is the prohibition harmful? Test it. It covers conduct a very large number of people engage in, so it cannot be enforced against all of them; the officer therefore chooses; the choice will be made by locality, by community or by payment; and the provision becomes a licensing system run informally.

Is the answer to repeal it? Not necessarily. The answer may be to keep the rule and change the sanction: a fixed civil penalty, imposed administratively, with no conviction and no imprisonment. That preserves the regulation and removes the harm.

What does that show? That the question "is criminal law harmful" is really the question "is the criminal sanction the right instrument for this rule", and the answer differs rule by rule.

What it does NOT mean

It does not mean the criminal law should be abolished or minimised on principle. The offences against life, liberty and property are not candidates for removal, and nobody proposes it.

It does not mean punishment is the harm. The harms listed above are mostly collateral: the conviction, the delay, the enforcement pattern, the effect on dependants. Punishment properly imposed on a proved offender is the institution working.

And it does not mean the answer is a matter of taste. The costs are measurable and the arguments are old. An answer should give the harms, the responses and a conclusion, and not merely balance opinions.

Quick revision

• The institution is necessary: the alternative is private vengeance.
• Five harms: the permanence of a conviction; the damage of imprisonment to dependants; selective enforcement of widespread prohibitions; the extortion a rarely enforced provision enables; and delay that becomes the punishment.
• Five answers: probation and admonition; reformative sentencing and community service; decriminalisation; constitutional review of vague offences; and the right to a speedy trial.
• The real question is not whether criminal law is harmful but whether the criminal sanction is the right instrument for the particular rule.

Test yourself

1. State the harm that follows from criminalising conduct a large part of the population engages in. Selective enforcement. The police cannot proceed against everyone, so they choose, and the choice is made on grounds unconnected with the offence, which produces inequality and invites corruption.

2. Why is a conviction often worse than the sentence? Because the sentence ends and the conviction does not. Disqualification from employment, from licences and from public office follows the person permanently, and no court measures it when sentencing.

3. Give the answer the law has developed to the harm imprisonment does. Alternatives to custody: release on probation or after admonition, and community service, which the Sanhita made a punishment in its own right in 2023.

4. Restate the question in the form that can actually be answered. Not "is the criminal law harmful" but "is the criminal sanction the right instrument for this particular rule", which is answered rule by rule.

The dates matter, and the next chapter takes them up, because ten of the eleven question papers this book is checked against were sat before the Sanhitas came into force.

Worked example

Hemant is arrested in Nashik on suspicion of theft. He says three things: that what he did was not theft; that the police had no power to arrest him without a warrant; and that the confession he gave to the officer cannot be used.

Which statute answers the first? The Bharatiya Nyaya Sanhita. Whether the ingredients of theft are made out, and in particular whether he took the property dishonestly and without consent, is a substantive question.

Which answers the second? The Bharatiya Nagarik Suraksha Sanhita, section 35, which sets out when an officer may arrest without a warrant, including on credible information that a person has committed a cognizable offence punishable with imprisonment of a particular length, and requires the officer to record reasons.

Which answers the third? The Bharatiya Sakshya Adhiniyam, which governs the admissibility of confessions, and the procedural statute's provision on the recording of confessions and statements by a Magistrate.

And if the offence was committed in 2023? Then the substantive law applied is the Indian Penal Code as it stood, because article 20(1) forbids applying a later substantive law; but the trial may well proceed under the new procedure, subject to the saving provisions the new statute itself carries.

The distinctions, in a table

What it does NOT mean

It does not mean the two never mix. Limitation for taking cognizance, and the compounding of offences, sit in the procedural statute and affect substantive liability directly.

It does not mean evidence is a third kind of law. Evidence is procedural in nature; it is separately enacted for convenience.

And it does not mean a procedural breach never matters. A breach that causes prejudice, or that violates a constitutional protection such as the right to be informed of the grounds of arrest, can vitiate the whole proceeding.

Quick revision

• Substantive law defines offences and punishments; procedural law regulates how they are tried; evidence governs proof and is procedural in character.
• The three statutes of 2023: Bharatiya Nyaya Sanhita (Act 45), Bharatiya Nagarik Suraksha Sanhita (Act 46), Bharatiya Sakshya Adhiniyam (Act 47), all in force from 1 July 2024.
• Article 20(1) bars retrospective substantive criminal law; procedure is generally applied as it stands.
• Section 2(24) of the Nyaya Sanhita defines "offence"; section 35 of the Nagarik Suraksha Sanhita is the arrest power. One is substance, the other machinery.

Test yourself

1. Name the three Sanhitas of 2023 and say what each replaced. The Bharatiya Nyaya Sanhita replaced the Indian Penal Code 1860; the Bharatiya Nagarik Suraksha Sanhita replaced the Code of Criminal Procedure 1973; the Bharatiya Sakshya Adhiniyam replaced the Indian Evidence Act 1872. All came into force on 1 July 2024.

2. Why can a procedural change be applied to a pending case when a substantive one cannot? Because article 20(1) protects against conviction under a law not in force when the act was done, and that protection attaches to the definition of the offence and its penalty. No person has a vested right in a particular form of procedure.

3. Under which statute would you look to find whether the police could arrest without a warrant? The Bharatiya Nagarik Suraksha Sanhita, section 35.

4. Are the General Exceptions substantive or procedural? Substantive. They provide that the conduct is not an offence at all. The burden of proving them is a separate, evidential question.

It was brought into force on 1 July 2024. Assent and commencement are eighteen months apart, and the house rule is to check commencement and never assent.

One provision was held back. The sub-section of section 106 dealing with a driver who causes death by rash and negligent driving and escapes without reporting the incident was not brought into force with the rest and remains uncommenced. Section 1(2)'s power to appoint different dates for different provisions is what allowed that.

What the change means for a student answering a 2019 paper

Nearly every question paper in this subject is written in Penal Code numbering: "General Exceptions under ss. 76-106", "Section 377 of the Indian Penal Code", "sec. 76-106". The 2026 paper drops the reference.

The rule this book follows, and which an answer should follow. Give the provision the question names, then give its successor, then answer on the substance. An answer that gives only the old number is answering a repealed statute. An answer that gives only the new number has not answered the question as printed.

The mapping for the parts this paper is about. The General Exceptions of Chapter IV of the Code, sections 76 to 106, are Chapter III of the Sanhita, sections 14 to 44, in the same order. Common intention, which was section 34, is now section 3(5), a sub-section of the general explanations clause and not a section of its own. Abetment, which was sections 107 to 120, is sections 45 to 60. Criminal conspiracy, which was sections 120A and 120B, is now one section, 61. Attempt, which was section 511, is section 62. Unlawful assembly, which was section 141, is section 189(1), and the common object provision, which was section 149, is section 190.

Two traps. There is a section 34 in the Sanhita and it is not common intention; it is the opening provision on private defence. And section 377 of the Code has no successor at all; the Sanhita contains no offence of carnal intercourse against the order of nature, which is the subject of a chapter in Module IV.

Worked example

A 2019 paper asks: "Enumerate 'General Exceptions' under ss. 76-106. Discuss in detail any three of them."

Step one. Say what the question refers to: sections 76 to 106 of the Indian Penal Code, 1860, being Chapter IV of that Code, headed General Exceptions.

Step two. Say where the law now is: those provisions are re-enacted, in the same order and with the same substance, as sections 14 to 44 of the Bharatiya Nyaya Sanhita, 2023, being its Chapter III, in force from 1 July 2024.

Step three. Enumerate, giving both numbers for each: mistake of fact and being bound by law, section 76 and now section 14; judicial acts, 77 and 15; and so on to private defence, 96 to 106 and now 34 to 44.

Step four. Discuss the three chosen on the substance, using the current text and noting any change.

Why not just answer in old numbers? Because a candidate sitting the paper today is being examined on the law, and the law is the Sanhita. Giving both is not padding; it is the accurate answer.

What it does NOT mean

It does not mean the Penal Code is irrelevant. Every offence committed before 1 July 2024 is still tried under it, article 20(1) requires that, and the cases decided under it remain authority because the provisions were re-enacted in substance.

It does not mean the Sanhita is a new law. Most of it is the Code renumbered. The new material is a small proportion, and an answer that describes the Sanhita as a fresh codification is overstating it.

And it does not mean every section maps neatly. Some were merged, some were split, one was dropped, and a concordance is the only safe way to work.

Quick revision

• Five sources: the Constitution; the general penal statute; special and local laws; the procedural and evidentiary statutes; and judicial decisions.
• Section 2(30): a special law is a law applicable to a particular subject. Section 2(18): a local law applies only to a particular part of India.
• The Bharatiya Nyaya Sanhita, 2023, Act 45 of 2023, assented 25 December 2023, in force 1 July 2024 under section 1(2), replaced the Indian Penal Code, 1860.
• Section 106(2) alone was held back and is not in force.
• Key mapping: General Exceptions 76 to 106 become 14 to 44; common intention 34 becomes 3(5); abetment 107 to 120 becomes 45 to 60; conspiracy 120A and 120B become 61; attempt 511 becomes 62; unlawful assembly 141 becomes 189(1); common object 149 becomes 190.
• Section 377 has no successor.
• The rule for an answer: the number the question uses, then its successor, then the substance.

Test yourself

1. When did the Bharatiya Nyaya Sanhita come into force, and how do you know it is not the date of assent? 1 July 2024. Section 1(2) leaves commencement to a notification and permits different dates for different provisions, and the assent of 25 December 2023 therefore brought nothing into force.

2. Which provision of the Sanhita was not brought into force with the rest? Section 106(2), the sub-section on a driver who causes death by rash and negligent driving and escapes without reporting.

3. Is "section 34 of the Bharatiya Nyaya Sanhita" a correct reference for common intention? No, and it is a positively wrong one. Common intention is section 3(5). Section 34 of the Sanhita is the opening provision on private defence.

4. How should a candidate answer a question framed in Penal Code numbering? By naming the provision the question uses, giving its successor in the Sanhita, and then answering on the substance under the current law.

The Schedule is the practical answer to all of these, and a student should know that they are read off a table and not deduced from the offence.

Mala in se and mala prohibita

Mala in se means acts wrong in themselves. Mala prohibita means acts wrong only because they are prohibited. Murder is the standard example of the first; driving on the wrong side of the road is the standard example of the second.

The distinction is old, and the first chapter showed why it cannot be a test of what is criminal. It survives for three purposes and they are worth knowing.

It predicts where mens rea will be required. Courts presume a mental element for offences that are wrong in themselves and are readier to dispense with it for regulatory offences. That is the doctrinal bridge from this chapter to topic 11.

It predicts sentencing. A court sentences an act wrong in itself more heavily than a regulatory breach of the same maximum.

It predicts what will be decriminalised. Almost every modern decriminalisation has concerned conduct in the second class, or conduct in neither class that the law had wrongly placed in the first.

Other classifications worth naming

Offences against the body, against property, against the State, against public tranquillity, against women and children, and against public health and safety. This is the Sanhita's own arrangement, and it is how the offences chapters are ordered.

Continuing offences. An offence that is committed afresh each day it persists, which matters for limitation.

Inchoate offences. Abetment, conspiracy and attempt, punished because of what they threaten rather than what they achieve. They have a chapter of their own in topic 4.

Petty offences and offences of strict liability, which are the modern regulatory mass and belong to topic 11.

Worked example

Ismail is accused of criminal breach of trust in respect of forty thousand rupees. He wants to know four things.

Can the police arrest him without a warrant? That depends on whether the offence is cognizable. The Schedule to the procedure statute answers it, and where it is cognizable, section 35 governs the officer's power and requires him to record his reasons.

Will he get bail? If the offence is bailable, as of right. If not, on an application to the court, which will consider the nature of the accusation, the severity of the punishment, the risk of absconding and the risk of interference with witnesses.

If he repays the money, does the case end? Only if the offence is compoundable, and if it is compoundable only with permission, then only if the court permits.

Which court tries him? As the Schedule provides for that offence and that amount.

What has he learnt? That none of these four questions is answered from the definition of the offence. They are read off the classification.

What it does NOT mean

Non-bailable does not mean unbailable. It means bail is discretionary.

Cognizable does not mean serious. It is a rough proxy for seriousness and no more, and the Schedule contains surprises in both directions.

Compoundable does not mean the offence disappears. Compounding with the court's permission has the effect of an acquittal; it does not mean nothing happened.

And mala prohibita does not mean trivial. A great many regulatory offences carry heavy punishment, and some of them protect life.

Quick revision

• Four working classifications: cognizable or non-cognizable; bailable or non-bailable; compoundable or non-compoundable; and by the court of trial.
• The First Schedule to the procedure statute answers the first, second and fourth for every offence; the compounding section answers the third.
• Section 173: information in cognizable cases. Section 35: arrest without a warrant.
• Mala in se and mala prohibita are not tests of criminality. They predict where mens rea is required, how a court will sentence, and what is likely to be decriminalised.
• Non-bailable means bail is discretionary, not unavailable.

Test yourself

1. What is the practical difference between a cognizable and a non-cognizable offence? In a cognizable offence a police officer may arrest without a warrant and investigate without a Magistrate's order. In a non-cognizable offence he may do neither.

2. Where does one find whether an offence is bailable? In the First Schedule to the Bharatiya Nagarik Suraksha Sanhita, which states for every offence whether it is cognizable, whether it is bailable and which court tries it.

3. Does mala in se decide whether conduct is an offence? No. It describes the moral weight of an offence and predicts the treatment of the mental element, the sentence and the likelihood of decriminalisation.

4. If the parties settle a non-compoundable offence, what happens? The prosecution continues. The settlement may be relevant to sentence, and in a narrow class of case a High Court may quash proceedings in the exercise of its inherent power, but the parties cannot compound what the law does not allow them to compound.

Adjudication. Deciding guilt on the evidence, by a tribunal that is independent and impartial, following a procedure fixed in advance.

Sentencing. Deciding what to do with a convicted person, which is topic 9.

Correction and reintegration. Carrying out the sentence and returning the person to society, which is the concern of penology and of Group V's Paper V.

To those four the modern law has added a fifth, which older writers omitted.

Attending to the victim. Informing, protecting, compensating and hearing the person harmed. Its omission is the standing criticism of the Indian system, and it is the subject of a chapter of its own.

What the system is measured by

An answer that says the system is measured by its conviction rate has said something false and examinable.

Accuracy. Are the people convicted the people who did it. A high conviction rate obtained by low standards of proof measures nothing.

Fairness. Is the process one that a person who lost would accept as having been fair.

Speed. Justice delayed is a familiar phrase and it is more than a phrase: delay destroys evidence, keeps unconvicted persons in prison, and punishes the acquitted.

Consistency. Like cases treated alike, which in India is weakest at the sentencing stage because there are no sentencing guidelines.

Public confidence. If people do not believe the system works, they do not report, they do not testify, and in the worst case they take the law into their own hands, which is where this subject began.

Worked example

A theft is reported in Dombivli. The police record the information, investigate for two months, and file a report naming Kavita. She is tried, and after four years she is acquitted because the only identification evidence is unreliable.

Did the system work? On the due process model, yes. An unproved case ended in an acquittal, which is exactly what the standard of proof requires.

On the crime control model? No. A thief was probably not caught, the complainant recovered nothing, and four years of court time produced no result.

What actually failed? Almost certainly the investigation, not the trial. The identification evidence was weak because it was gathered badly, and no rule of evidence can repair that afterwards.

And what did the four years cost? Kavita's employment, probably; the complainant's confidence, certainly; and the court's capacity, which could have been spent elsewhere. That is why speed is a measure of the system and not a luxury.

What it does NOT mean

Criminal justice is not the same as the criminal law. The law is the set of rules; criminal justice is the machinery that applies them, and a good law administered by a broken machinery produces nothing.

It is not only the courts. Most cases never reach a contested trial, and most of what determines the outcome happens before one.

And it is not a machine for producing convictions. An acquittal on a properly conducted trial is the system working, not failing.

Quick revision

• Criminal justice is the process and the institutions by which an allegation of crime is investigated, tried, decided and answered.
• Justice has two senses, result and process, and they conflict. The criminal law is the compromise.
• Packer's two models: crime control, a conveyor belt valuing speed and finality; due process, an obstacle course valuing reliability.
• Functions: investigation, adjudication, sentencing, correction, and now attending to the victim.
• Measures: accuracy, fairness, speed, consistency and public confidence. Not the conviction rate.

Test yourself

1. Name Packer's two models and give the metaphor for each. The crime control model, a conveyor belt that values speed and finality; and the due process model, an obstacle course in which the State must clear each stage.

2. Why do the two senses of justice conflict? Because rules that make the process fair, such as the exclusion of a coerced confession, sometimes prevent a true result, and rules that maximise true results, such as unlimited interrogation, destroy the fairness of the process.

3. What is the fifth function modern criminal justice has added? Attending to the victim: informing, protecting, compensating and hearing the person harmed.

4. Why is the conviction rate a poor measure of a criminal justice system? Because it can be raised by lowering the standard of proof or by prosecuting only easy cases, neither of which improves accuracy, and because an acquittal in an unproved case is the system working correctly.

A declared body of rules. Not merely a general power to punish, but rules stating in advance what is punishable and with what, which is the principle of legality.

Independent adjudication. A tribunal that decides the facts and applies the rules, and that is not the same body that investigates or prosecutes. The separation of the judiciary from the executive is a directive principle of the Indian Constitution for this reason.

An executive able to give effect. A judgment nobody enforces is not justice administered. This is where the International Criminal Court is weakest, as Module IV shows, and it is a useful comparison to keep.

Worked example

A village panchayat in a district of Maharashtra hears a complaint that a man has stolen a buffalo, decides he did, and orders him to pay ten thousand rupees and to be beaten.

Is this the administration of criminal justice? Test it against the four requirements. There is a tribunal, and it applied something like a rule. But it is not the sovereign, its rules were not declared in advance, and its sanction was not one any law authorises.

What is it, then? It is the exercise of private force, which is what the administration of justice exists to displace. The beating is itself an offence, and the persons who ordered it are liable for it.

Does the panchayat's decision bind anyone? No. It does not bar a prosecution of the thief, and it does not bar a prosecution of the panchayat.

Could a village body ever administer criminal justice? Only if the State conferred the power by law, defined its rules and its limits, and made its decisions reviewable. The point is not that local bodies cannot judge; it is that they can only do so as part of the State's machinery.

What it does NOT mean

It does not mean the courts alone. Administration includes investigation, prosecution, trial, sentence and execution of the sentence. A student who describes only the trial has described a quarter of it.

It does not mean the State always acts. The administration of justice is a power, exercised with discretion at every stage, and the exercise of discretion is itself part of the subject.

And it is not the same as law and order. The maintenance of public order is a preventive executive function. The administration of criminal justice is what happens after the fact and through the courts.

Quick revision

• Salmond: the administration of justice is the maintenance of right within a political community by means of the physical force of the State, and its criminal branch is the punishment of wrongs.
• Four elements: maintenance of right; physical force; a political community; rules fixed in advance.
• Two branches: civil, the enforcement of rights; criminal, the punishment of wrongs.
• Four requirements: a sovereign monopoly of force; declared rules; independent adjudication; an executive able to enforce.
• It is not the courts alone, and it is not the same as law and order.

Test yourself

1. Give Salmond's definition of the administration of justice. The maintenance of right within a political community by means of the physical force of the State.

2. Which element of the definition separates it from the exercise of raw power? That the force is applied according to rules fixed in advance, which is the principle of legality.

3. Name the four conditions without which the phrase has no application. A sovereign with a monopoly of force; a declared body of rules; independent adjudication; and an executive able to give effect to the judgment.

4. Why is a panchayat's punishment of a thief not the administration of criminal justice? Because the body is not the sovereign, its rules were not declared in advance, and its sanction is unauthorised. It is private force, which the administration of justice exists to displace, and it is itself an offence.

The modern qualification: necessity is not a licence

An answer that stops at the argument above has given half of what MU asked, because her question joins necessity to the harm criminal laws can do.

The qualification is this. The argument establishes that the State must have the power and must exercise it. It does not establish how much conduct should be criminal, how severe the punishment should be, or how far the process may go in pursuit of a conviction. Every one of those is a separate question, and the necessity of the institution answers none of them.

The Indian evidence for the qualification is in the chapter on whether criminal laws are harmful: the permanence of a conviction, the damage imprisonment does to dependants, selective enforcement, extortion and delay.

Worked example

In a district where the police are believed to be ineffective, a group of villagers beats a man to death on a rumour that he was transporting cattle for slaughter.

What does this show about necessity? That the argument's second premise is true. Where the State is not believed to answer wrongs, private answers appear at once.

Is the group's belief that they were doing justice relevant? Not to their liability. They were not the sovereign, they applied no declared rule, and their sanction was not one any law authorises. The killing is murder, and the fact that they believed the deceased had committed an offence is no defence to it.

What is the State's failure here? Two failures, and both matter. The first is not preventing the killing. The second, older, is having allowed a belief to grow that it would not act, which is what made the killing possible.

What follows for the answer? That the necessity of the administration of criminal justice is not only the necessity of punishing offenders. It is the necessity of being seen to punish them, because the institution's real function is to make private punishment unnecessary.

What it does NOT mean

It does not mean punishment works. The empirical evidence that severe punishment deters is weak, and the argument here does not depend on it. The argument is that the alternative to public punishment is private punishment, which is worse whether or not either deters.

It does not mean the State's monopoly is absolute. The law permits private force in narrow circumstances, and one of them is the whole of Module II's topic 8, the right of private defence. But private defence prevents a wrong in progress; it does not punish a wrong that is past, and the difference is exactly the line this chapter draws.

And it does not mean more criminal law is better. The necessity of the institution says nothing about its extent.

Quick revision

• The argument in four steps: rules need enforcement; the victim will enforce if the State does not; private enforcement is disproportionate, unequal and self-perpetuating; therefore the State must take the power and must use it.
• Salmond: a sanctionless law would work only where nobody wished to break it, and there law would be unnecessary.
• Four purposes of punishment: deterrent, preventive, reformative, retributive.
• The qualification: necessity establishes that the State must punish, not how much conduct should be criminal or how severely.
• Private defence is the permitted exception, and it prevents a wrong in progress rather than punishing a past one.

Test yourself

1. State the argument for the necessity of the administration of criminal justice in four steps. Rules that are not enforced are not universally obeyed; if the State does not answer a wrong the victim will; private answers are disproportionate, unequal and self-perpetuating; so the State must take the power of punishment and, having taken it, must exercise it.

2. Does the argument depend on proving that punishment deters? No. It depends on the comparison between public punishment and private punishment, and the second is worse whether or not either deters.

3. What is the one lawful survival of private force in the criminal law? The right of private defence, which permits force to prevent a wrong in progress but never to punish one that is past.

4. Why does necessity not justify any amount of criminal law? Because it establishes only that the State must have and use the power. How much conduct is criminal, how severe the punishment is, and how far the process may go are separate questions it does not answer.

Stage three: the ruler's peace

The third stage is the decisive one. The ruler asserts that certain wrongs are not merely wrongs against a family but breaches of his own peace, and that he alone may punish them.

Why rulers did it. Partly to end feuds, which are destructive of a kingdom. Partly for revenue, since the fine went to the ruler where the compensation had gone to the family. And partly because the claim to punish is a claim to sovereignty, and asserting it is how a ruler becomes a sovereign.

What changed. Three things, and all three survive. The prosecution became the ruler's. The sanction became punishment rather than compensation. And the wrong was reconceived as public, which is the proposition worked in the chapter on crime as a wrong against the State.

What did not change. The ruler was not bound. He punished as he chose, which is the defect the fourth stage answers.

Stage four: the modern State

The fourth stage adds the element that makes the modern institution defensible: the State that punishes is itself bound by rules.

Rules fixed in advance. No conviction except for the violation of a law in force at the time, which is article 20(1) of the Indian Constitution.

Courts separate from the executive. The body that decides is not the body that investigates.

Rules that limit the process. The presumption of innocence, the burden on the prosecution, the privilege against self-incrimination, the right to counsel and the right to a fair trial, all of which are Module III's topic 10.

Rules that limit the punishment. No cruel or degrading punishment, the requirement of proportion, and the constitutional review of a sentence.

The four stages, in a table

Worked example

Take one incident, a killing, and run it through the four stages.

Stage one. The dead man's brothers kill the killer, or his brother, or whoever they can reach. The killer's family now has a death to answer, and the cycle continues.

Stage two. The elders assess the life at a fixed number of cattle. The killer's family pays it and the matter is closed. If the dead man had been of higher status the number would have been larger.

Stage three. The killing is a breach of the King's peace. The King prosecutes and hangs the killer. The dead man's family receives nothing.

Stage four. The State prosecutes. The accused is presumed innocent, is defended by counsel, and is convicted only on proof beyond reasonable doubt. If convicted, he is sentenced according to a scale the legislature fixed in advance, and the court may also order him to compensate the family, which is stage two returning inside stage four.

What it does NOT mean

The stages are not a strict chronology. They overlap, they recur, and elements of all four are visible in any developed system today. They are a way of organising an answer, not a history.

Compensation was not abolished. It was displaced from the centre and has returned at the edge.

And the fourth stage is not the end. Restorative justice, victim compensation schemes and the compounding of offences all move authority back towards the parties, and it is arguable that a fifth stage is under way.

Quick revision

• Four stages: private vengeance; compensation; the ruler's peace; the modern State bound by rules.
• The talion, an eye for an eye, is a ceiling on vengeance and therefore the first limit, not the absence of law.
• Compensation introduced the third party who declares the measure, which is the ancestor of the court.
• The ruler's peace made the prosecution public, the sanction punishment, and the wrong against the State.
• The fourth stage's contribution is that the State is bound: rules fixed in advance, separate courts, limits on the process and limits on the punishment.
• Compensation has returned as an order of the criminal court, so the oldest stage is also the newest reform.

Test yourself

1. Name the four stages in the growth of the administration of criminal justice. Private vengeance, compensation, the assertion by the ruler that wrongs breach his peace, and the modern State bound by declared rules.

2. Why is the rule of talion better described as a limit than as barbarism? Because it fixes a maximum, not a minimum. It is the first attempt to say that vengeance may go this far and no further.

3. What did the third stage change and what did it fail to change? It made prosecution public, the sanction punitive and the wrong a wrong against the ruler. It did not bind the ruler, who punished as he chose.

4. Where does the second stage survive in modern Indian law? In the criminal court's power to order compensation to the victim, in the victim compensation schemes, and in the compounding of offences.

The qazi was the judge, the muhtasib enforced public morals, and the faujdar was the executive officer of the district.

The colonial period

The East India Company acquired the diwani of Bengal, Bihar and Orissa in 1765, which gave it revenue authority and, with it, a growing involvement in justice. Warren Hastings reorganised the courts in 1772, and over the following decades the Company progressively removed the discretionary and family-controlled elements of the existing criminal law, principally the power of the heirs to pardon a killer.

The decisive period is the middle of the nineteenth century.

The First Law Commission, appointed under the Charter Act of 1833 with Thomas Babington Macaulay as its chairman, produced a draft Penal Code in 1837.

The Indian Penal Code, Act 45 of 1860, was passed in 1860 and brought into force on 1 January 1862.

The Code of Criminal Procedure, 1861 was the first of a series of procedure codes, replaced in 1872, 1882 and 1898.

The Indian Evidence Act, 1872, drafted by Sir James Fitzjames Stephen, completed the trio.

The result was a single criminal law for the whole territory, applied without regard to the religion of the parties, which is the colonial period's one unambiguous contribution.

The modern period

At independence the codes were retained. The Constitution then added what the colonial system had lacked: articles 14, 20, 21 and 22, the separation of the judiciary from the executive as a directive principle, and judicial review of criminal legislation.

The Code of Criminal Procedure, 1973 replaced the 1898 Code with effect from 1 April 1974, following the Law Commission's Forty-First Report.

The Malimath Committee reported in 2003 on reforms to the criminal justice system, and has a chapter of its own.

The three Sanhitas were assented to on 25 December 2023 and brought into force on 1 July 2024. Section 1(2) of the Bharatiya Nyaya Sanhita is the provision under which that was done: it provides that the Sanhita shall come into force on such date as the Central Government may by notification appoint, and that different dates may be appointed for different provisions.

Section 1 also states the reach of the Sanhita: by section 1(3) every person is liable to punishment under it for every act or omission contrary to it of which he is guilty within India, and by section 1(5) it applies to offences committed by a citizen of India anywhere beyond India, by any person on a ship or aircraft registered in India wherever it may be, and by any person anywhere committing an offence targeting a computer resource located in India.

The dates, in a table

Worked example

An examiner asks how the administration of criminal justice in India grew, and a candidate has ten minutes.

Do not start at 1860. The answer begins with the shift from a system in which the wrong belonged to the injured family to one in which it belongs to the state, because that is the change the whole topic is about.

Use four periods and one fact for each. Ancient, in which the king's duty to punish sat alongside private composition; medieval, in which two systems of law ran together; colonial, in which the Company's acquisition of the diwani in 1765 put criminal administration into the hands of a trading company; and modern, in which a codified law replaced the mixture.

Anchor the colonial period on three dates. The Law Commission provided for in 1833; the Penal Code enacted in 1860 and in force from 1 January 1862; and the procedure code of 1898 that lasted until 1974.

Then say what changed and what did not. The codes were replaced in 2024 by the three Sanhitas, assented on 25 December 2023 and in force on 1 July 2024. What did not change is the structure: an offence is still prosecuted by the state, and the victim is still a witness, which is the point the chapters on the victim and on compensation take up.

And close on the direction of travel. Codification made the law uniform and the process state driven; everything since, from the sentencing hearing to the victim's right of appeal, has been an attempt to put the injured person back into a process that had been built without him.

What it does NOT mean

It does not mean the ancient system was lawless. It had rules, forums and a theory of punishment. Its defect was the grading by status, not the absence of law.

It does not mean the Penal Code was original. Macaulay drew on English law, on the Code Napoleon and on the Louisiana code, and the result was the first successful codification of criminal law in the common law world, exported afterwards to many other jurisdictions.

And it does not mean 2024 is a fresh start. Most of the Sanhita is the Code renumbered, as the sources chapter shows.

Quick revision

• Four periods: ancient (danda, dandaniti, grading by status); medieval (hadd, qisas, diya, tazir, the qazi); colonial (Macaulay 1837, Penal Code 1860 in force 1862, Evidence Act 1872, procedure codes 1861 to 1898); modern (Constitution 1950, CrPC 1973 in force 1974, Malimath 2003, Sanhitas 2023 in force 1 July 2024).
• The medieval system's structural feature is that qisas and diya left homicide with the victim's family.
• The colonial contribution is a single criminal law applied regardless of religion.
• Section 1(2) of the Sanhita is the commencement power; 1(3) and 1(5) are its territorial and extra-territorial reach.

Test yourself

1. What are hadd, qisas, diya and tazir? Hadd, offences with punishments fixed by scripture; qisas, retaliation claimable by the heirs for homicide and wounding; diya, blood money accepted in place of retaliation; tazir, discretionary punishment in the ruler's hands.

2. Which feature of the medieval system corresponds to the second stage of the general growth of criminal justice? Qisas and diya, because they left the answer to a homicide substantially with the victim's family, which is the compensation stage.

3. Give the two dates for the Indian Penal Code and say why both matter. Enacted in 1860, in force on 1 January 1862. The gap is the same lesson as 2023 and 2024: commencement, not assent, is what makes a criminal statute operate.

4. Under which provision were the Sanhitas brought into force, and what does it permit? Section 1(2) of the Bharatiya Nyaya Sanhita, which leaves the date to notification and permits different dates for different provisions. That power is why section 106(2) is still not in force.

Section 187 deals with the case where the investigation cannot be completed within twenty-four hours. The accused is forwarded to a Magistrate, who may authorise detention. The provision sets the outer limit on that detention, and when the limit expires without a report the accused becomes entitled to be released on bail. That entitlement is the statutory edge of the right to a speedy trial and has a chapter of its own in Module III.

Step 3: The report

Section 193 requires the officer in charge to forward a report to the Magistrate on completion of the investigation, in the prescribed form, stating the names of the parties, the nature of the information, the names of the persons who appear to be acquainted with the circumstances, whether an offence appears to have been committed and by whom, whether the accused has been arrested, and whether he has been released on bond.

Where the investigation shows that no offence was committed, the report says so, and it is then called a closure report. The Magistrate is not bound by it and may direct further investigation or take cognizance himself.

Step 4: Cognizance

Taking cognizance is the Magistrate's application of his mind to the offence for the purpose of proceeding. It is not a formal order and is not defined; it is inferred from what the Magistrate does.

He may take cognizance on a police report, on a complaint, or on information received from any person other than a police officer, or on his own knowledge.

Step 5: The charge

Section 251 provides for the framing of a charge. In a Sessions trial the judge considers the record and the documents, hears the prosecution and the accused, and if he is of opinion that there is ground for presuming that the accused has committed the offence, frames a charge in writing. The charge is then read and explained to the accused, who is asked whether he pleads guilty or claims to be tried.

The step before this is discharge. If the judge considers that there is not sufficient ground for proceeding, he discharges the accused and records his reasons.

The charge is the accused's fundamental protection at this stage, because it fixes what he has to answer and prevents the prosecution shifting its case during the trial.

Step 6: Trial

The prosecution leads its evidence. Each witness is examined by the prosecutor, cross-examined by the defence and, if necessary, re-examined.

The accused is then examined so that he may personally explain the circumstances appearing in the evidence against him, and that examination is not on oath.

If the court considers there is no evidence that the accused committed the offence, it may acquit at that stage. Otherwise the accused is called on to enter his defence and may lead evidence, though he is under no obligation to lead any, since the burden is on the prosecution throughout.

Then arguments, and the case is closed for judgment.

Step 7: Judgment

Section 392 governs the judgment. It is pronounced in open court, is written in the language of the court, contains the point or points for determination, the decision on them and the reasons for the decision, and specifies the offence and the section under which the accused is convicted, or states the offence of which he is acquitted.

Step 8: Sentence

On a conviction the court hears the accused on the question of sentence before passing it. This step is separate from the finding of guilt and is the whole subject of Module III's topic 9. The court may also order compensation to the victim at this stage.

Step 9: Appeal

Section 413 states the governing rule: no appeal lies from any judgment or order of a criminal court except as provided by the Sanhita or by any other law for the time being in force. There is no general right of appeal in a criminal case; there is only the right the statute gives.

Section 415 provides the appeals from convictions, stating which court hears an appeal against a conviction according to the court that passed the sentence.

Beyond appeal lie revision, which is a supervisory power exercised on the record, and the constitutional jurisdictions of the High Court and the Supreme Court.

The nine steps, in a table

Worked example

A house in Bhiwandi is broken into on a Tuesday night. The owner telephones the police at six the next morning.

Step 1. The officer in charge records the information under section 173, reads it over, has it signed and gives the owner a free copy.

Step 2. He proceeds to the spot under section 176, seizes a broken lock, examines two neighbours and records their statements. He arrests a suspect on Thursday, and because the investigation cannot be completed in twenty-four hours, forwards him to the Magistrate under section 187.

Step 3. Three weeks later he files a report under section 193, naming the suspect and stating that an offence appears to have been committed.

Step 4 and 5. The Magistrate takes cognizance, and the court frames a charge under section 251, reads it over and asks the accused whether he pleads guilty.

Step 6, 7 and 8. The trial is held, judgment is delivered under section 392, and on conviction the accused is heard on sentence and may be ordered to compensate the owner.

Step 9. He appeals under section 415 to the court the section names. If the statute gave no appeal, section 413 would be a complete answer to him.

What it does NOT mean

The steps are not always in this order. Bail applications, discharge applications and further investigation cut across the sequence.

Not every case has all nine. A complaint case begins at the Magistrate, not at the police station. A case ending in discharge never reaches trial.

And the first information report is not evidence of what it states. It is a statement fixing the beginning, usable to corroborate or contradict its maker.

Quick revision

• Nine steps: information, investigation, report, cognizance, charge, trial, judgment, sentence, appeal.
• 173 information; 176 investigation; 183 confessions and statements before a Magistrate; 187 investigation not completed in twenty-four hours; 193 the report; 251 the charge; 392 the judgment; 413 no appeal except as provided; 415 appeals from convictions.
• Cognizance is not defined and is inferred from the Magistrate's application of mind.
• Section 413 is the rule that surprises: there is no general right of appeal in a criminal case.

Test yourself

1. Which section governs the recording of the first information, and who may give it? Section 173, and any person may give it. It must be reduced to writing if given orally, read over to the informant and signed, with a free copy to the informant.

2. What happens when the investigation cannot be completed within twenty-four hours? Section 187 applies. The accused is forwarded to a Magistrate who may authorise detention, and when the outer limit expires without a report the accused becomes entitled to be released on bail.

3. What must a judgment contain? Under section 392, the point or points for determination, the decision on them and the reasons, and the offence and section of conviction or the offence of which the accused is acquitted. It is pronounced in open court.

4. Is there a general right of appeal against a criminal judgment? No. Section 413 provides that no appeal lies except as provided by the Sanhita or by another law in force.

The courts

What they do. Take cognizance, discharge or frame a charge, try the case, decide guilt, sentence, and hear appeals and revisions.

The structure. Courts of Session and Additional and Assistant Sessions Judges; Chief Judicial Magistrates and Judicial Magistrates of the first and second class; and above them the High Court and the Supreme Court. Special courts sit under a great many special laws.

The duty that defines the function. Impartiality, and its institutional guarantee, the separation of the judiciary from the executive, which the Constitution directs the State to secure.

The criticism. Delay, in a class of its own. Cases pending for a decade are ordinary, and delay defeats every function of the system at once: evidence decays, witnesses turn, under-trials remain in custody, and the acquitted have already been punished.

The correctional system

What it does. Executes the sentence: prisons, and the machinery of probation, parole, remission and release.

What it is for. Not storage. The reformative theory in Module III's topic 9 supplies the aim, which is to return the person to society better able to live in it, and the Supreme Court has said repeatedly that a prisoner does not lose his fundamental rights at the gate.

The criticism. Overcrowding, and its principal cause, which is not the number of convicts but the number of under-trials. A prison population made up mostly of unconvicted persons is a failure of the courts and the police showing up in the correctional system's statistics.

The four agencies, in a table

Worked example

A murder is investigated badly: the scene is not preserved, the recovery is not properly witnessed, and the only eye-witness is examined a month late.

Can the prosecutor repair it? No. He can present what exists and no more, and if he is doing his duty he will tell the court frankly what the weaknesses are.

Can the court repair it? No. It can summon a witness of its own motion and can direct further investigation at the right stage, but it cannot create a scene that was not preserved.

Where does the failure surface? As an acquittal, years later, described in the newspapers as a failure of the court.

And what does that show about the agencies? That they are sequential and not parallel. Each works on what the previous one produced, and a defect introduced early is not curable late. That single proposition is what an answer on this topic is really being asked for.

What it does NOT mean

It does not mean the agencies are independent of each other. They are functionally separate and operationally dependent, which is a different thing.

It does not mean the police decide guilt. They form an opinion and report it; the opinion binds nobody.

And it does not mean the correctional system begins after everything else. It holds under-trials throughout, which is why it is affected by delay more than by sentencing.

Quick revision

• Four agencies: police, prosecution, courts, correctional system.
• Section 35: arrest without warrant, with reasons recorded for offences punishable with less than seven years. Section 43: how an arrest is made and the limits on force. Section 193: the report at the end of the investigation.
• The prosecutor's duty is to place the whole of the material before the court, including what helps the accused.
• Characteristic failures: investigation quality and custodial abuse; want of prosecutorial independence; delay; overcrowding driven by under-trials.
• The agencies are sequential: a defect introduced early cannot be repaired late.

Test yourself

1. Name the four agencies and one function of each. The police investigate and report; the prosecution independently assesses the material and conducts the case; the courts frame the charge, try, decide and sentence; the correctional system executes the sentence and works towards reintegration.

2. What distinguishes a public prosecutor from a party's advocate? His duty is to place the whole of the material before the court, including material favourable to the accused, and to assist the court in reaching the truth rather than to secure a conviction.

3. Why is the quality of investigation the most important single variable? Because the agencies are sequential. Evidence not gathered at the scene cannot be produced at the trial, and no later agency can repair the defect.

4. What does a prison population composed mostly of under-trials indicate? Not a failure of the correctional system but of the courts and the police, since it measures delay and the use of custody before conviction.

The criticisms of each

Against the adversarial system. It treats the trial as a contest, so the outcome depends on the quality of the advocates and not only on the facts. It rewards concealment: neither side is obliged to lead evidence that damages it. It leaves the truth undiscovered where both parties prefer it undiscovered. And it is hard on the victim, who is a witness and nothing more.

Against the inquisitorial system. The judge who supervised the investigation has formed a view before the trial begins, and a fact-finder who has already read a dossier constructed by the State is not neutral in the way the adversarial model requires. There is less protection against a long pre-trial detention used to secure a confession.

Where India actually stands

India is adversarial in structure and has borrowed inquisitorial elements, and an answer that says only "India is adversarial" is incomplete.

The adversarial features. The prosecution proves; the accused is presumed innocent; there is cross-examination; the rules of evidence are codified and strict; the judge does not investigate.

The inquisitorial borrowings. The court may summon any person as a witness of its own motion, and may recall and re-examine any witness, if it thinks his evidence essential to the just decision of the case. The court may direct further investigation. The accused is examined by the court to explain the circumstances appearing against him, though not on oath and without any obligation to answer. And the police investigation is conducted under a duty to record everything, including material favourable to the accused, which is inquisitorial in spirit.

What was proposed and not adopted. The Malimath Committee, whose chapter follows, recommended importing a good deal more: a duty on the court to search for the truth, a power to question the accused, and a lower standard of proof. Those recommendations were not enacted, and the reasons are worked in that chapter.

Worked example

A prosecution witness in a trial in Nagpur gives evidence that plainly leaves out the middle of the story. Neither the prosecutor nor the defence asks about it, each for its own reasons.

In a pure adversarial system. Nothing happens. The gap remains, and the judge decides on what he was given. That is the system's characteristic failure and it is a real one.

In an inquisitorial system. The judge asks the question, because finding out what happened is his responsibility.

In India. The judge may summon or recall a witness of his own motion where he thinks the evidence essential to the just decision of the case, and may put questions to any witness at any stage. So the Indian judge is not confined to what the parties give him.

Why does the Indian position matter to the answer? Because it shows that the two models are ends of a range rather than two boxes, and that India sits nearer the adversarial end with deliberate exceptions.

What it does NOT mean

Inquisitorial does not mean unfair. The word is a description of who investigates, not a judgment. European systems produce fair trials and are bound by the European Convention.

Adversarial does not mean the judge is powerless. In India he can call witnesses, direct further investigation, and put questions.

And the choice of system does not settle the fundamental principles. The presumption of innocence and the right against self-incrimination exist in both families, in different forms, which is exactly what MU's question about the fundamental principles in an adversarial system is testing.

Quick revision

• Adversarial: parties investigate and present, judge is umpire, cross-examination tests the evidence, prosecution bears the burden throughout, strict rules of admissibility.
• Inquisitorial: the court investigates or supervises, a dossier is compiled, the judge questions, admissibility is looser.
• The real difference is who is responsible for finding out what happened.
• India is adversarial with inquisitorial borrowings: the court may summon or recall a witness of its own motion, may direct further investigation, and examines the accused to explain the circumstances against him.
• The characteristic risk of each: the better-resourced party wins in one, the investigation's early view becomes the verdict in the other.

Test yourself

1. State the single difference from which all the others follow. Who is responsible for finding out what happened. In the adversarial system the parties are; in the inquisitorial system the court is.

2. Give two inquisitorial elements present in Indian criminal procedure. The court's power to summon, recall and question any witness of its own motion where the evidence appears essential to a just decision, and the examination of the accused by the court to enable him to explain the circumstances appearing against him.

3. What is the characteristic weakness of an adversarial trial? That the outcome turns partly on the quality of the advocacy and on what the parties choose to lead, so a fact neither side wants explored may never be explored.

4. Why does the question of system matter to the fundamental principles? Because some of those principles, such as the presumption of innocence and the burden on the prosecution, take their shape from the adversarial model, and an answer must say which are artefacts of the model and which would survive a change of system.

6. Prosecution. It recommended a Directorate of Prosecution independent of the police, and a national judicial commission for appointments.

7. Confessions to police. It recommended making a confession to a senior police officer admissible, subject to safeguards, which the law had excluded since 1872.

8. Sentencing. It recommended a statutory sentencing policy and a permanent sentencing commission to reduce the wide disparity between courts.

9. Offences and classification. It recommended reclassifying offences into a social welfare code and a correctional code, and a schedule of offences graded by the punishment.

The criticism

The report was strongly attacked, and an answer that gives only the recommendations has given half of it.

On the standard of proof. The presumption of innocence and proof beyond reasonable doubt are not adversarial ornaments; they are the practical expression of the proposition that it is worse to convict an innocent person than to acquit a guilty one. Lowering the standard in a system whose investigations are already criticised would convert weak investigation into conviction.

On the right of silence. Permitting adverse inferences from silence approaches compulsion by another route, and article 20(3) of the Constitution provides that no person accused of an offence shall be compelled to be a witness against himself. A recommendation whose effect is to penalise the exercise of a constitutional right invites the objection that it does indirectly what cannot be done directly.

On confessions to the police. The exclusion exists because of what custodial interrogation was and in many places still is. To make such confessions admissible without first fixing custodial practice is to reward the practice.

On the transplant itself. The inquisitorial safeguards were not proposed along with the inquisitorial powers. Continental systems have a judicially supervised investigation, a professional judiciary trained for the role, and a dossier that must record what favours the accused. Importing the court's power to question without importing the supervised investigation takes the part that helps the State and leaves the part that protects the accused.

On the victim. This is where the criticism was mildest, and the recommendations were the most influential.

What survived

Three of the recommendations have substantially become law, and an answer should name them because it converts a description into an assessment.

Victim compensation. A statutory victim compensation scheme was introduced into the criminal procedure law in 2009 and is now section 396 of the Bharatiya Nagarik Suraksha Sanhita, with the mandatory compensation power in section 395 and compensation for a groundless arrest in section 399.

The victim's right of appeal. A right of appeal for the victim against an acquittal, against a conviction for a lesser offence, or against inadequate compensation was introduced in 2009 and is carried forward.

Forensic support and time limits. The Sanhitas of 2023 adopted a good deal of the Committee's emphasis on scientific investigation and on statutory time limits at each stage.

What did not survive. The standard of proof was not altered. The right of silence was not altered. Confessions to police officers remain inadmissible.

Worked example

A student is asked whether India should adopt the Malimath Committee's recommendation on the standard of proof.

State the recommendation accurately. Not that guilt should be proved on the balance of probabilities, but that the standard should be an intermediate one: that the court is convinced the accusation is true.

Give the argument for it. Proof beyond reasonable doubt is an English inheritance, was framed for a jury, and in practice produces acquittals in cases where the court believes the accused is guilty. Victims are the losers.

Give the argument against it. The standard is the operative form of the presumption of innocence, which the Supreme Court has treated as an aspect of the fair procedure article 21 requires. The Indian investigation, on the Committee's own findings, is weak; a lower standard converts that weakness into convictions. And the error it invites is the one error the system is designed to avoid.

Conclude. That the recommendation identified a real problem, the low rate of conviction in contested cases, and prescribed for the symptom rather than the cause, which is the quality of investigation. That is the standard answer and it is defensible.

What it does NOT mean

The report is not law. Not one of its central recommendations was enacted in the form proposed, and quoting it as though it were the law is an error.

It was not only about the standard of proof. The victim recommendations were the most significant and are the ones that became law.

And it did not propose adopting the inquisitorial system. It proposed borrowing from it, which is a materially different claim.

Quick revision

• The Committee on Reforms of the Criminal Justice System, chaired by Justice V. S. Malimath, constituted by the Ministry of Home Affairs in 2000, reported in March 2003 with 158 recommendations.
• Central diagnosis: the adversarial system does not seek the truth. Central recommendation: make the search for truth the court's duty.
• Most attacked: the lower standard of proof; adverse inference from silence; confessions to police made admissible.
• Most influential: the victim package.
• What became law: victim compensation (now sections 395, 396 and 399 of the Nagarik Suraksha Sanhita), the victim's right of appeal, and the emphasis on forensic investigation and time limits in the 2023 Sanhitas.
• What did not: the standard of proof, the right of silence, and the admissibility of police confessions.

Test yourself

1. Who chaired the Committee, when did it report, and how many recommendations did it make? Justice V. S. Malimath; it reported in March 2003; and it made 158 recommendations.

2. State its central diagnosis in one sentence. That the adversarial system leaves the court dependent on what the parties choose to present, so it is not directed at finding the truth.

3. Give the strongest objection to its recommendation on the standard of proof. That the standard is the operative form of the presumption of innocence, and that lowering it in a system whose investigations are admittedly weak converts weak investigation into wrongful convictions.

4. Name two recommendations that became law. The statutory victim compensation scheme, now section 396 of the Bharatiya Nagarik Suraksha Sanhita, and the victim's right of appeal against an acquittal, a conviction for a lesser offence or inadequate compensation.

Two: the State-funded scheme.

Section 396 is the victim compensation scheme. Every State Government, in co-ordination with the Central Government, is to prepare a scheme for providing funds for compensating the victim or his dependants who have suffered loss or injury as a result of the crime and who require rehabilitation. Its two important features are that the District Legal Services Authority or the State Legal Services Authority decides the quantum, and that compensation may be awarded where the offender is not traced or identified and no trial takes place, as well as where the trial ends in acquittal or discharge.

That second feature is the answer to the deepest form of the criticism. A system that compensates only on conviction leaves the victim of an undetected crime, who is the commonest victim of all, with nothing.

Three: compensation for a groundless arrest.

Section 399 provides that where a person causes a police officer to arrest another without sufficient ground, the Magistrate may award compensation not exceeding a specified amount to be paid to the person arrested, for his loss of time and expenses. It is the mirror image of the others: the victim here is the person the criminal process wronged.

The cases

Delhi Domestic Working Women's Forum v. Union of India, (1995) 1 SCC 14, decided on 19 October 1994.

Facts. A petition under article 32 brought by a forum for domestic workers on behalf of four domestic servants who were sexually assaulted by army personnel on 10 February 1993 while travelling on the Muri Express from Ranchi to Delhi. The petition complained of how the victims had been treated by the investigating and trial machinery and asked for a scheme of compensation and rehabilitation.

Held. The Court laid down parameters for assisting victims of rape. The victim is entitled to legal representation and to be told of that right when she reports; a lawyer is to be appointed by the court on the police's application and is authorised to act at the police station before the court's leave is obtained, so that she is not questioned without assistance; a list of willing advocates is to be kept at the police station; anonymity is to be maintained in all rape trials as far as necessary; and, having regard to article 38(1) of the Constitution, a Criminal Injuries Compensation Board is to be set up, compensation being awarded by the court on conviction and by the Board whether or not a conviction has taken place, taking into account pain, suffering and shock as well as loss of earnings.

Why it matters here. It is where Indian law first treated compensation as something the State owes a victim independently of convicting anybody. The statutory scheme that is now section 396 is the legislative form of that idea.

Ankush Shivaji Gaikwad v. State of Maharashtra, (2013) 6 SCC 770, decided on 3 May 2013.

Facts. At about ten at night on 3 February 2006 the deceased and his wife were guarding their jaggery crop in their field. The appellant, walking past with two others, was angered by the barking of the deceased's dog and struck it with an iron pipe. The deceased objected, a scuffle followed, and the appellant struck him on the head with the pipe. He died four days later of a fracture at the base of the skull. The trial court convicted the appellant of murder and the High Court upheld it.

Held. On the offence, the nature of the injury, the part of the body struck, the weapon and the circumstances did not establish an intention to kill but did establish knowledge that the injury was likely to cause death, so the conviction was altered to culpable homicide not amounting to murder. On compensation, the section confers a power coupled with a duty on courts to apply their mind to the question of awarding compensation in every criminal case. Unless it is read that way the provision is a dead letter, because courts will ignore it altogether; the power to award compensation is not ancillary to other sentences but in addition to them; and a failure to consider it is a non-application of mind of the kind for which a sentencing order may be set aside.

Why it matters here. It is the exact answer to MU's question. The Court did not create a right to compensation. It held that the discretion carries a duty to consider, and the reason it had to say so is that the discretion had been going unexercised, which is the proposition in the question proved by the Supreme Court itself.

Answering the question

An answer should take a position, and the defensible position is this.

The proposition is true as a description of the system's design. The criminal law is organised around the offender and gives the victim no standing as of right.

It is no longer true as a description of the law on the books. There is a mandatory duty to consider compensation, a State-funded scheme that operates without a conviction, and a right of appeal.

It remains true as a description of practice. Schemes are unevenly funded across States, awards are modest against the losses they answer, and the duty to consider is complied with by a line in the judgment.

And the structural reason is unchanged. As long as the victim is a witness and not a party, everything he gets is given to him and nothing is claimed by him as of right. That is what a vanishing point means, and it is the sentence to end an answer on.

Worked example

A woman is assaulted and robbed on her way home. The accused is tried and acquitted for want of identification. She has spent forty thousand rupees on treatment and has been unable to work for four months.

Is she a party to the prosecution? No. She is a witness, which is the structural point the whole chapter turns on.

Has the court any duty to her? Yes, at the sentencing stage in a case that ends in conviction. Ankush Shivaji Gaikwad: the section confers a power coupled with a duty to apply the mind to compensation in every criminal case, and a failure to do so is a non-application of mind for which the order may be set aside.

But this case ended in an acquittal. Then the court's power to order compensation against the accused does not arise, and the State scheme does. The trial court may recommend compensation where the case ends in acquittal or discharge and the victim has to be rehabilitated, and the Legal Services Authority fixes the quantum.

Suppose the assailant had never been identified at all. She may apply directly to the State or District Legal Services Authority, and no trial is needed.

Where does the idea come from? Delhi Domestic Working Women's Forum, which directed that compensation be awarded by the court on conviction and by the Board whether or not a conviction has taken place, taking into account pain, suffering and shock as well as loss of earnings.

And what is she still not? A party. She cannot compel the prosecution, cannot be heard on sentence, and everything she receives is given rather than claimed. That is the answer to MU's question.

What it does NOT mean

It does not mean the criminal court awards damages. Compensation under section 395 is not a civil assessment, and the section itself requires a later civil court to take account of what was paid.

It does not mean the victim can insist on compensation. The duty is to consider; the outcome remains a judgment.

And it does not mean compensation is a substitute for punishment. Both are imposed, and paying compensation does not purchase a lower sentence, though it is relevant to sentence.

Quick revision

• The claim: in a system built around the offender, the victim's claim is at the margin and is the first thing dropped.
• Four supports: the victim is not a party; punishment gives him nothing; the fine is revenue; the discretion to compensate went unused.
• Section 395: order to pay compensation, out of a fine or independently, with a later civil court bound to take it into account.
• Section 396: the victim compensation scheme, quantum fixed by the District or State Legal Services Authority, available where the offender is not traced and no trial takes place, and on acquittal or discharge.
• Section 399: compensation to a person groundlessly arrested.
• Delhi Domestic Working Women's Forum (1994): representation, anonymity, and a Criminal Injuries Compensation Board awarding whether or not there is a conviction.
• Ankush Shivaji Gaikwad (2013): the power to award compensation is a power coupled with a duty to apply the mind in every criminal case.
• The conclusion: true of the design, no longer true of the statute, still true of the practice.

Test yourself

1. What does "vanishing point" claim? That in a system organised around the guilt and punishment of the accused, the victim's claim recedes to the margin and disappears, not because it is denied but because nothing in the structure is built around it.

2. Which provision compensates a victim whose attacker was never caught, and who fixes the amount? Section 396 of the Bharatiya Nagarik Suraksha Sanhita, the victim compensation scheme. The District Legal Services Authority or the State Legal Services Authority decides the quantum, and the section expressly covers the case where the offender is not traced or identified and no trial takes place.

3. State the holding in Ankush Shivaji Gaikwad on compensation. That the provision confers a power coupled with a duty on courts to apply their mind to the question of awarding compensation in every criminal case, since otherwise the provision would be a dead letter.

4. Give the structural reason the criticism survives all three statutory answers. Because the victim remains a witness and not a party, so everything he receives is conferred on him by the court's discretion or by an administrative scheme, and nothing is his as of right in the proceeding itself.

Heinous offences are defined as including offences for which the minimum punishment under the Penal Code or any other law in force is imprisonment for seven years or more. Serious offences carry three to seven years, and petty offences up to three years.

The system

The Juvenile Justice Board. Not a criminal court. It consists of a Magistrate and two social workers, at least one of whom is a woman, and it conducts an inquiry rather than a trial.

The dispositions. Where the Board finds that a child has committed an offence it may allow the child to go home after advice or admonition, direct participation in group counselling, order community service, order the payment of a fine by the parent or guardian, release on probation of good conduct under the care of a parent or a fit person, or send the child to a special home for a period not exceeding three years. There is no imprisonment and no sentence of death, and a child cannot be sentenced to life imprisonment without the possibility of release.

The record. The proceeding is not a conviction and is not to be treated as a disqualification, and the relevant records are to be destroyed after the period the statute fixes, so a childhood offence does not follow a person for life.

The exception introduced in 2015

Section 15 of the Act provides that in the case of a heinous offence alleged to have been committed by a child who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, his ability to understand the consequences of the offence, and the circumstances in which he allegedly committed it. The Board may take the assistance of experienced psychologists, psycho-social workers or other experts.

The Explanation to the section states expressly that the preliminary assessment is not a trial: it is an assessment of the child's capacity to commit and to understand the consequences of the alleged offence.

If the Board is satisfied on the assessment that the matter should be disposed of by the Board itself, it follows the procedure for a summons case. If not, the case goes to the Children's Court, which may try the child as an adult, but even then the child may not be sentenced to death or to imprisonment for life without the possibility of release, and is kept in a place of safety until he is twenty-one.

The debate about the 2015 exception

The provision was enacted after a case of extreme public feeling in which one of the offenders was a few months short of eighteen. An answer should give both sides.

For it. Sixteen-year-olds today are not the sixteen-year-olds the 1960 legislation had in mind; a bright line at eighteen lets a person who understands exactly what he is doing escape the ordinary consequence; and the assessment is individual rather than a blanket lowering of the age.

Against it. The assessment asks a Board to determine a child's mental capacity and understanding on a preliminary inquiry, which is a judgment the psychological literature says cannot reliably be made; it reintroduces into the law the very individualised capacity test that the fixed age was adopted to replace; it applies only to heinous offences, so it is driven by the gravity of the offence rather than by the maturity of the child, which is the opposite of what the assessment purports to measure; and the international obligation India has accepted treats everyone under eighteen as a child.

Worked example

A boy of sixteen years and four months is alleged to have committed an offence for which the minimum punishment is seven years.

Which system? The juvenile justice system, because he was under eighteen on the date of the offence.

Is it a heinous offence? Yes, on the statutory definition, because the minimum punishment is seven years or more.

What happens first? The Board conducts a preliminary assessment under section 15 of his mental and physical capacity to commit the offence, his ability to understand its consequences, and the circumstances in which he allegedly committed it, with expert assistance if it chooses.

And then? If the Board keeps the matter, it follows the summons case procedure and may make any of the orders open to it. If it does not, the case goes to the Children's Court, which may try him as an adult, but he may not be sentenced to death or to life imprisonment without the possibility of release, and is kept in a place of safety until twenty-one.

Suppose he was fifteen years and eleven months. Then section 15 does not apply at all, whatever the offence, and the Board alone deals with him.

What it does NOT mean

It does not mean a juvenile commits no offence. Except where the infancy sections apply, he does. He is dealt with differently.

It does not mean the age is at trial. It is at the date of the offence.

It does not mean every sixteen-year-old accused of a serious matter is tried as an adult. The exception is confined to heinous offences and requires an individual assessment.

And the ages in the infancy defence did not change in 2023. Sections 20 and 21 of the Sanhita carry forward seven and twelve exactly as the Penal Code had them, and several commentaries said the lower age would rise. It did not.

Quick revision

• A child in conflict with law is one who was under eighteen on the date of the offence.
• The Juvenile Justice Board inquires rather than tries; a Magistrate and two social workers, one of whom must be a woman.
• Dispositions: admonition, counselling, community service, a fine on the parent, probation, or a special home for up to three years. No imprisonment, no death sentence, no conviction, and records destroyed.
• Heinous offences carry a minimum of seven years or more; serious, three to seven; petty, up to three.
• Section 15: for a heinous offence by a child of sixteen or above, a preliminary assessment of capacity, understanding and circumstances, expressly not a trial; the case may then go to the Children's Court to be tried as an adult.
• Even then: no death sentence and no life imprisonment without the possibility of release, and a place of safety until twenty-one.
• The infancy defence is a different rule: sections 20 and 21 of the Sanhita, under seven and seven to twelve, and they say there is no offence.

Test yourself

1. Which date fixes whether a person is a child in conflict with law? The date of commission of the offence. A person who crosses eighteen during the inquiry is still dealt with as a child.

2. What is a heinous offence for this purpose? One for which the minimum punishment under the Penal Code or any other law in force is imprisonment for seven years or more.

3. What does the Board decide on a preliminary assessment, and what is the assessment expressly not? It assesses the child's mental and physical capacity to commit the offence, his ability to understand its consequences, and the circumstances in which he allegedly committed it. The Explanation to section 15 states that it is not a trial.

4. Distinguish juvenile delinquency from the infancy defence in one sentence each. The infancy defence, in sections 20 and 21 of the Sanhita, provides that in defined circumstances a child commits no offence at all. Juvenile justice provides that a person who did commit an offence while under eighteen is dealt with by a different forum, procedure and set of dispositions.

The other three papers of Group V

For completeness, because a student choosing this group should know what the six papers are.

Paper I, Criminal Jurisprudence. This book.

Paper II, Penal Laws. The substantive offences, principally the Sanhita that replaced the Penal Code, together with the special penal statutes MU prints.

Paper III, Criminology. The causes and measurement of crime.

Paper IV, Collective Violence and Criminal Justice System. Riot, mass violence, atrocities and the machinery for dealing with them.

Paper V, Penology, Treatment of Offenders. Punishment in practice, prisons, probation and correction.

Paper VI, Forensic Science and Scientific Investigation of Crime. Scientific evidence and its use in investigation and proof.

Worked example

An examiner in this paper asks: "Discuss in detail about various 'Theories of Punishments'."

What is being asked? The justification of punishment: what makes it right for the State to inflict suffering deliberately. Deterrent, retributive, preventive, reformative, expiatory, and which of them Indian law follows.

What would be the wrong answer? A description of Indian prison conditions, remission policy and the machinery of parole. That is a good answer to a Paper V question and a poor one here.

Where does the empirical material fit? In the assessment. That the deterrent effect of severity is weakly supported by evidence is a criminological finding, and it is exactly what a strong answer uses to attack the deterrent theory's claim to be the primary justification.

Quick revision

• Criminal jurisprudence: what a crime is, when the State may punish, and why. Analytical and normative.
• Criminology: why crime happens. Empirical.
• Penology: what to do with the offender. Theory of punishment plus the practice of correction.
• Group V's six papers: Criminal Jurisprudence; Penal Laws; Criminology; Collective Violence and Criminal Justice System; Penology, Treatment of Offenders; Forensic Science and Scientific Investigation of Crime.
• Empirical material belongs in this paper where it supports a claim about what the law should be, not where the question is what the law is.

Test yourself

1. Distinguish criminology from criminal jurisprudence in one sentence. Criminology studies crime as a social fact and asks why it happens; criminal jurisprudence studies the criminal law as a system of concepts and asks what a crime is and when the State may punish.

2. Why are the theories of punishment set in this paper and also in Paper V? Because the question differs. Here it is whether and why punishment is justified, which is a question about the legitimacy of State power. In Paper V it is how punishment should be administered.

3. When is criminological evidence properly used in an answer to this paper? When it supports a normative claim, for example that a prohibition cannot be enforced evenly and should therefore be repealed, or that severity does not deter and cannot justify a sentencing policy.

Blame. Punishment is a deliberate infliction of suffering. It can be justified against a person who chose to do the forbidden thing. It is much harder to justify against a person who did it without choosing.

Deterrence. A rule can only deter a person who is in a position to conform to it. Punishing a person who could not have known what he was doing deters nobody, because nobody can take a precaution against being punished for something they had no way of avoiding.

Fair warning. The criminal law tells people in advance what will be punished. That warning is worth nothing to a person whose conduct was innocent in his own mind and criminal only in fact.

Where the maxim sits in the Sanhita

The Bharatiya Nyaya Sanhita nowhere states the maxim, and nowhere uses the words "mens rea". It does two things instead.

It writes the mental element into each definition. The Sanhita's offences are drafted with words such as "intentionally", "knowingly", "voluntarily", "dishonestly", "fraudulently", "rashly", "negligently" and "with the intention of". Those words carry the mens rea, offence by offence. Section 2 defines several of them: by section 2(7) "dishonestly" means doing anything with the intention of causing wrongful gain to one person or wrongful loss to another; by section 2(9) "fraudulently" means doing anything with the intention to defraud but not otherwise; by section 2(33) a person causes an effect "voluntarily" when he causes it by means whereby he intended to cause it, or by means which, at the time of employing them, he knew or had reason to believe to be likely to cause it; and by section 2(11) nothing is said to be done or believed in "good faith" which is done or believed without due care and attention.

It provides the General Exceptions. Section 3(1) states that every definition of an offence, every penal provision and every illustration in the Sanhita is to be understood subject to the exceptions in the Chapter entitled General Exceptions, though those exceptions are not repeated in the definition. Those exceptions, sections 14 to 33, are in substance a list of situations in which the mind is not guilty: mistake of fact, accident, necessity, infancy, unsoundness of mind, involuntary intoxication, consent and compulsion.

So the maxim is not in the Sanhita as a sentence. It is in the Sanhita as a method.

The cases

Nathulal v. State of Madhya Pradesh, AIR 1966 SC 43, decided on 22 March 1965.

Facts. A dealer in foodgrains at Dhar was prosecuted for storing 885 maunds of wheat for sale without a licence. He had applied for the licence, deposited the fee, submitted fortnightly returns which were accepted without objection, been assured by the Inspector that the licence would come, and had never been told his application was rejected. The Magistrate found he had no guilty mind and acquitted him; the High Court convicted him and imposed a year's rigorous imprisonment.

Held. Mens rea is an essential ingredient of a criminal offence. A statute may exclude it, but it is a sound rule of construction to read a provision creating an offence in conformity with the common law unless the statute expressly or by necessary implication excludes mens rea. The mere fact that the object of the statute is to promote welfare or to eradicate a grave social evil is not by itself decisive. Mens rea may be excluded by necessary implication only where it is absolutely clear that the object of the statute would otherwise be defeated. On the facts the appellant had stored the grain under a bona fide belief that his licence had issued, so he had not intentionally contravened the Order, and he was acquitted.

Why it matters here. It is the Supreme Court's own statement that the maxim survives the arrival of the modern regulatory statute, and it supplies the test by which the exception is measured.

Srinivas Mall Bairoliya v. Emperor, (1947) 49 Bom LR 688, decided by the Privy Council on 28 April 1947.

Facts. A salt agent's employee demanded a rupee for each bag of one kind of salt and two rupees for each bag of another over and above the controlled price, and released the salt only on payment. Both the agent and the employee were convicted under the Defence of India Rules on price control, the agent of abetment, and were sentenced to eighteen and twelve months' rigorous imprisonment.

Held. The Board expressly dissented from the High Court's view that where there is an absolute prohibition the master is criminally liable for his servant's acts without any question of mens rea. Offences that can be committed without a guilty mind are a limited and exceptional class, usually of a comparatively minor character, and it would be surprising if a person morally innocent of blame could be held vicariously liable for a servant's crime and imprisoned for up to three years. The Board approved the statement that unless the statute clearly or by necessary implication rules out mens rea, a defendant should not be found guilty unless he has a guilty mind.

Why it matters here. It is the source of the proposition that offences without a guilty mind are exceptional, which is what makes the maxim a rule rather than a preference.

Worked example

Ismail hands his friend Prakash a bag to carry to Pune. The bag contains contraband. Prakash does not know.

The actus reus. Prakash transported the contraband. The physical element is complete.

The mens rea. Whether Prakash is guilty depends on what the offence requires. If the definition requires knowledge, he has none, and on the maxim he is not guilty.

Now change one fact. Prakash suspected the bag held something unlawful and deliberately refrained from asking. Many offences are satisfied by that state of mind, either because knowledge includes wilful blindness or because the statute uses "reason to believe", which section 2(29) defines as having sufficient cause to believe a thing.

And change it again. The statute expressly provides that possession alone is punishable and casts the burden of proving innocent possession on the accused. That is a reverse onus, and it is the subject of the strict liability topic. The maxim has then been displaced by the legislature, which is what Nathulal says the legislature may do.

What has the example shown? That the maxim does not decide any case by itself. It tells you to look for the mental element the definition requires, and the definition tells you what it is.

What it does NOT mean

It does not mean the accused must be morally wicked. The mens rea required is the state of mind the definition specifies, and nothing more. A person who takes property honestly believing it his own lacks the dishonesty theft requires; a person who takes it knowing it is not his has the mens rea of theft even if his motive is charitable.

It does not mean motive is part of the offence. Motive is why he did it and is not an element. That is a separate chapter.

It does not apply without exception. Strict liability offences are real and are the whole of topic 11.

And it does not mean the prosecution must prove a state of mind directly. Intention is proved by inference from conduct, and the law has always accepted that a person is presumed to intend the natural consequences of his acts, which is a rule of evidence and not a rule of substance.

Quick revision

• Actus non facit reum nisi mens sit rea: the act does not make a person guilty unless the mind is also guilty.
• Two elements, which must coincide and must relate to each other: the actus reus and the mens rea.
• Three justifications: blame, deterrence and fair warning.
• The Sanhita states the maxim nowhere. It carries it in the words of each definition and in the General Exceptions, which section 3(1) applies to every definition in the statute even where they are not repeated.
• Definitions in section 2 that carry the mental element: 2(7) dishonestly, 2(9) fraudulently, 2(11) good faith, 2(29) reason to believe, 2(33) voluntarily.
• Nathulal (1965): mens rea is essential; a welfare object is not by itself decisive; it is excluded by necessary implication only where it is absolutely clear the object would otherwise be defeated.
• Srinivas Mall Bairoliya (1947): offences without a guilty mind are a limited and exceptional class, usually minor.

Test yourself

1. Translate the maxim word by word. Actus, an act; non facit, does not make; reum, guilty; nisi, unless; mens, the mind; sit, be; rea, guilty. The act does not make a person guilty unless the mind is also guilty.

2. What are the two requirements that connect the two elements? They must coincide in time, and the mens rea must relate to the very actus reus the offence defines. General wickedness is not mens rea.

3. Where does the Sanhita carry the maxim, given that it never states it? In the words of each offence definition, such as intentionally, knowingly, voluntarily, dishonestly and fraudulently, several of which section 2 defines; and in the General Exceptions, which section 3(1) applies to every definition in the statute.

4. State the test in Nathulal for when a statute excludes mens rea. Only where the statute does so expressly or by necessary implication, and by necessary implication only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated. A welfare object is not by itself decisive.

The Indian statute reaches most of this ground through the General Exceptions rather than through a general doctrine of voluntariness: accident under section 18, and the provisions on unsoundness of mind and on compulsion. But the underlying proposition stands, and an answer should state it.

Section 2(33) defines "voluntarily" for the purposes of the Sanhita, and it is worth noticing that the statutory definition is about causing an effect, not about willing a movement: a person causes an effect voluntarily when he causes it by means whereby he intended to cause it, or by means which he knew or had reason to believe to be likely to cause it. So the statutory word "voluntarily" is a mens rea word, while the general requirement of a willed movement is an actus reus requirement. The two are not the same thing and an answer that runs them together loses marks.

Omissions

The general rule is that the criminal law punishes acts and not failures to act. A person who watches a stranger drown commits no offence merely by watching.

The exception is where there is a legal duty to act. Section 3(4) of the Sanhita brings illegal omissions within the words that refer to acts, and section 2(15) supplies the meaning of illegal: the word is applicable to everything which is an offence, or which is prohibited by law, or which furnishes ground for a civil action, and a person is said to be legally bound to do whatever it is illegal in him to omit.

Read those two together and the rule emerges. An omission attracts liability where the person was legally bound to do the thing omitted, and he is legally bound where the omission is itself an offence, or prohibited by law, or a ground for a civil action.

The duties recognised in practice arise from statute, from a contract or office, from the relationship of parent and child, and from a person having voluntarily assumed the care of another who cannot care for himself.

A moral duty is not enough, and that is the point of the drowning stranger.

Causation

Where the offence requires a consequence, the prosecution must prove that the accused's conduct caused it. Two questions are asked in order.

Factual causation. But for the accused's conduct, would the consequence have occurred as and when it did? If it would, he did not cause it.

Legal causation. Is his conduct a sufficiently operative and substantial cause that the law should attribute the consequence to him? This is where the arguments live.

Three propositions of Indian law are worth carrying.

The victim is taken as he is found. That the deceased had a thin skull, or a weak heart, or was elderly, does not break the chain. The Sanhita's own homicide provisions contain explanations to this effect, and the principle is old.

An intervening act breaks the chain only if it is independent and unforeseeable. Ordinary medical treatment, even negligent treatment, will usually not break it.

A refusal of treatment does not break it. A victim who declines an operation on religious grounds does not relieve the assailant.

Worked example

Farida pushes Rahim, who falls, strikes his head on a kerb, is taken to hospital, and dies a week later of an infection acquired in the ward.

Conduct. A push. A willed movement, so voluntary.

Circumstances. None special.

Consequence. Death, which the homicide offences require.

Factual causation. But for the push he would not have been in that ward at that time, so the push is a factual cause.

Legal causation. The question is whether the hospital infection is an independent intervening cause. Ordinarily it is not: being taken to hospital is the natural and foreseeable consequence of a head injury, and what happens in the ordinary course of treatment is part of the chain. Only treatment so extraordinary as to be independent of the original injury would break it.

And the mens rea? Entirely separate. Whether this is murder, culpable homicide, or causing death by a rash act depends on Farida's state of mind, which is the next chapter. The actus reus is the same in all three.

What it does NOT mean

Actus reus does not mean "act". It means the whole external element, and in some offences it is a state of affairs with hardly any act in it.

Voluntariness in the actus reus is not the Sanhita's word "voluntarily". The first is a willed movement; the second, in section 2(33), is about intending or foreseeing an effect and belongs to mens rea.

An omission is not generally criminal. It is criminal where the person was legally bound to act, and section 2(15) says when that is.

And causation is not common sense alone. It is two questions asked in order, and the second is a question of attribution rather than of physics.

Quick revision

• Actus reus is the whole external element: conduct, circumstances and, in result crimes, a consequence.
• Section 2(1): "act" covers a series of acts. Section 2(25): the same for omissions. Section 3(4): words referring to acts extend to illegal omissions.
• Section 2(15): "illegal" covers what is an offence, what is prohibited by law and what founds a civil action; and a person is legally bound to do whatever it is illegal in him to omit.
• Conduct must be a willed movement. Section 2(33)'s "voluntarily" is a different idea and belongs to mens rea.
• Omissions are criminal only where there is a legal duty, arising from statute, office or contract, a recognised relationship, or a voluntary assumption of care.
• Causation is factual (but for) then legal (operative and substantial). The victim is taken as found; ordinary medical treatment does not break the chain; a refusal of treatment does not either.

Test yourself

1. Name the three components of an actus reus and give an offence in which the third is absent. Conduct, circumstances and consequence. Theft has no required consequence: it is complete on the dishonest moving of property out of another's possession without consent.

2. When does an omission attract criminal liability, and which provisions carry that in the Sanhita? Where the person was legally bound to do the thing omitted. Section 3(4) extends words referring to acts to illegal omissions, and section 2(15) defines illegal and states that a person is legally bound to do whatever it is illegal in him to omit.

3. Distinguish the actus reus requirement of voluntariness from section 2(33). The actus reus requires a willed bodily movement, so a convulsion or an arm seized by another is not conduct at all. Section 2(33) defines causing an effect voluntarily, in terms of intending it or knowing it to be likely, which is a state of mind and belongs to mens rea.

4. State the two questions of causation and the rule about a thin skull. First, but for the conduct would the consequence have occurred as and when it did; second, is the conduct an operative and substantial cause to which the law should attribute the consequence. The victim is taken as he is found, so an unusual susceptibility does not break the chain.

Why the Sanhita never says "mens rea"

This is the paragraph that separates a good answer from a repeated one.

The Penal Code, and the Sanhita after it, were drafted on a deliberate policy of not stating a general doctrine. Macaulay's plan was that each offence should carry its own mental element on its face, in ordinary words, so that a court need never ask an abstract question about the guilty mind and could ask instead whether the words of the section were satisfied.

The result is three things, and all three are examinable.

There is no general mens rea section. There is nothing in the Sanhita corresponding to the maxim.

The mental element is in the definition. Read the section and the mental element is in it, usually in a single adverb.

And the General Exceptions supply the rest. Section 3(1) provides that every definition of an offence, every penal provision and every illustration is to be understood subject to the exceptions in the Chapter entitled General Exceptions, though those exceptions are not repeated. Sections 14 to 33 are, in substance, the situations in which the mind is not guilty even though the act was done.

So the Sanhita's method is: state the mental element in each offence, then subtract the General Exceptions from all of them at once.

How mens rea is proved

No witness can testify to what was in another person's mind. The mental element is therefore always an inference.

From the act itself. A person is presumed to intend the natural and probable consequences of his act. That is a rule of evidence and it is rebuttable; it is not a rule that intention is the same as consequence.

From the surrounding circumstances. The weapon used, whether it was carried or picked up, the part of the body struck, the force used, whether the incident was sudden or premeditated, whether there was prior enmity, whether one blow was struck or many. That list is the Supreme Court's own, set out in Ankush Shivaji Gaikwad, and it is the practical answer to how intention is found.

From what the accused said and did afterwards. Concealment, flight and the fabrication of an explanation are all evidence, though none is conclusive.

The two rules that limit it

Contemporaneity. The mens rea must exist at the time of the actus reus. An intention formed after the act does not make the act criminal, and an intention abandoned before the act does not make an accident murder.

Correspondence. The mens rea must relate to the elements of the offence charged. A person who intends to damage property and accidentally kills has the mens rea of mischief, not of murder, and the law bridges the gap only where a specific provision does so.

Worked example

Sanjay, angry at a neighbour, throws a heavy stone over a wall into the neighbour's yard, where children sometimes play. It strikes a child, who dies.

What mens rea does murder require? Whichever of the states described in the homicide provisions the prosecution alleges. The relevant one here would be knowledge that the act is so imminently dangerous that it must in all probability cause death.

Did he intend to kill? On the facts as stated, no. He intended to throw a stone into the yard.

Did he know death was likely? That is the question, and it is answered by inference: did he know children played there; was the stone heavy enough that a strike would probably kill; did he look before throwing.

Suppose he knew children were there at that moment. Then knowledge of likelihood is much easier to infer, and the offence moves up the scale.

Suppose the yard was always empty and a child had climbed in for the first time that day. Then he neither intended nor knew, and the question becomes whether he was rash or negligent, which is a lesser offence.

What has the example shown? That the actus reus was identical in all three versions, and the offence changed entirely with the mental element. That is what it means to say mens rea is the state of mind the definition requires.

What it does NOT mean

It does not mean an evil motive. A mercy killing is done from a good motive and the mens rea of homicide is present.

It does not mean the accused knew his act was against the law. That is ignorance of law, which is no excuse and has its own chapter.

It does not mean one state of mind for all offences. Kenny's correction is the point of the whole chapter.

And it does not mean the prosecution must prove the mind directly. It proves it by inference, and the presumption that a person intends the natural consequences of his acts is a rule of evidence, not of substance.

Quick revision

• Mens rea is whichever state of mind the definition of the offence requires. There is no mens rea in the abstract.
• Forms: intention, knowledge, rashness, negligence, reason to believe, and the compound definitions.
• Section 2(7) dishonestly; 2(9) fraudulently; 2(11) good faith; 2(29) reason to believe; 2(33) voluntarily.
• The Sanhita never uses the phrase. It writes the mental element into each definition and subtracts the General Exceptions from all of them through section 3(1).
• Proof is by inference: from the act, from the circumstances the Supreme Court listed in Ankush Shivaji Gaikwad, and from later conduct.
• Two limits: contemporaneity and correspondence.

Test yourself

1. Why is it wrong to ask whether the accused "had mens rea"? Because there is no mens rea in the abstract. The question is what state of mind the particular offence requires, and whether the accused had that one.

2. Give three definitions in section 2 that carry a mental element, with their effect. Section 2(7), dishonestly, meaning with the intention of causing wrongful gain or wrongful loss; section 2(9), fraudulently, meaning with the intention to defraud but not otherwise; and section 2(33), voluntarily, meaning by means intended to cause the effect or known or believed on sufficient cause to be likely to cause it.

3. How does the Sanhita carry the doctrine without stating it? By putting the mental element into the words of every offence, and by section 3(1), which applies the General Exceptions to every definition in the statute even though they are not repeated in it.

4. State the two rules that limit mens rea. Contemporaneity, that the guilty mind must exist at the time of the act; and correspondence, that it must relate to the elements of the offence charged.

That illustration is the Sanhita teaching the point of this chapter in its own words. Purpose and foresight are different states, and the statute deals with both by naming both.

How intention is proved

Intention is never proved directly. The Supreme Court in Ankush Shivaji Gaikwad set out the circumstances from which it is gathered, and the list is the most practically useful thing in this chapter.

The nature of the weapon used; whether the weapon was carried by the accused or picked up on the spot; whether the blow was aimed at a vital part of the body; the amount of force used; whether the act was in the course of a sudden quarrel or a free fight; whether the incident occurred by chance or there was premeditation; whether there was prior enmity or the deceased was a stranger; whether there was grave and sudden provocation and what caused it; whether it was in the heat of passion; whether the person inflicting the injury took undue advantage or acted in a cruel and unusual manner; and whether a single blow was dealt or several. The Court said the list is not exhaustive.

To these the law adds the rebuttable presumption that a person intends the natural and probable consequences of his acts. That is a rule of evidence. It does not make consequence the same thing as intention, and evidence that the accused did not foresee the consequence rebuts it.

Worked example

Two versions of the same incident. In each, Prakash strikes Ravi once and Ravi dies.

Version one. Prakash goes home, fetches a heavy iron bar, waits an hour, and strikes Ravi on the head with full force. He then conceals the bar.

Apply the list. The weapon was brought, not picked up; the blow was to a vital part; the force was full; there was premeditation, shown by the hour's wait; the conduct afterwards was concealment. Intention to cause death is a comfortable inference.

Version two. A sudden quarrel over a parking space. Prakash pushes Ravi, who falls against a projecting bolt and dies.

Apply the same list. No weapon; no blow to a vital part; no premeditation; a sudden quarrel; no prior enmity. Intention to cause death cannot be inferred, and the question becomes whether Prakash knew death was likely, which on these facts he did not, so the offence falls to one of causing death by a rash or negligent act.

Version three, to test the point. Prakash intends only to frighten Ravi and fires a gun over his head in a crowded street, where a ricochet kills him.

There is no direct intention to kill. But the analysis is not over: firing a gun in a crowded street is an act done with knowledge that it is likely to cause death, and the statute's separate limb for knowledge catches it. This is where the Indian drafting saves the court from the English argument.

Intention distinguished

What it does NOT mean

Intention is not desire. A man may intend a consequence he deeply regrets, as the illustration to section 2(33) says in terms.

Intention is not the same as premeditation. Premeditation is intention formed in advance; intention formed in the instant is still intention.

Intention is not proved by consequence alone. The presumption that a person intends the natural consequences of his acts is rebuttable.

And a good motive does not negative intention. A person who kills to end suffering intends the death.

Quick revision

• Direct intention: the consequence is the purpose. Oblique intention: the consequence is a virtually certain side effect.
• The Sanhita defines no general intention; it defines compounds: 2(7) dishonestly, 2(9) fraudulently, 2(33) voluntarily.
• The illustration to 2(33) is the statute's own teaching: a man who sets fire to an inhabited house to facilitate a robbery causes death voluntarily if he knew it was likely, even if he did not intend it and is sorry for it.
• Indian drafting avoids the English argument about foresight by adding knowledge as a separate limb of the same offence.
• Intention is proved by inference, from the eleven circumstances listed by the Supreme Court in Ankush Shivaji Gaikwad, and by the rebuttable presumption that a person intends the natural and probable consequences of his acts.
• Intention is not desire, not premeditation, and not established by consequence alone.

Test yourself

1. Distinguish direct from oblique intention. In direct intention the consequence is what the accused was trying to achieve. In oblique intention it was not his purpose but he knew it was virtually certain to follow from what he was trying to achieve.

2. Why does the Indian statute rarely need to decide whether foresight is intention? Because its offences state intention and knowledge as separate limbs, so a court decides which limb is satisfied instead of deciding whether foresight amounts to intention.

3. Give five of the circumstances from which intention is inferred. The nature of the weapon; whether it was carried or picked up on the spot; whether the blow was aimed at a vital part; the force used; and whether there was premeditation or a sudden quarrel.

4. Does a good motive negative intention? No. Motive is no part of any offence. A person who kills from compassion intends the death, and the motive goes only to sentence.

Where the standard is knowledge proper, an Indian court will ordinarily infer knowledge from the same circumstances that establish sufficient cause, which produces the same result by a different route. An answer should say both.

Knowledge against intention, in a table

Worked example

Sameer, a contractor, removes the barricades around an open trench on a public road at night so that his lorries can pass, intending to replace them in the morning. A cyclist falls in and dies.

Did he intend the death? Plainly not. The death served no purpose of his and he would have prevented it if he could.

Did he know death was likely? That is the question, and it is answered from the circumstances: the depth of the trench, the darkness, the fact that it is a public road, the traffic he could expect, and whether he left any warning. A man who removes barricades from a deep trench on a used road at night is a long way towards knowledge that a death is likely.

Was the danger imminent, so that death must in all probability follow? Probably not, on these facts. A cyclist might pass safely; many did. So the higher grade is not reached, and the case falls in the lower one.

And if he had left a lamp and a watchman? Then even the lower grade fails, and the question becomes rashness or negligence, which is the next chapter.

What has changed across those versions? Only the mental element. The trench, the removal and the death are constant. That is why knowledge is worth a chapter.

What it does NOT mean

Knowledge is not intention. A person who knows a consequence is likely and proceeds is not thereby shown to have wanted it, and the Sanhita's own illustration says so.

Knowledge is not certainty. The statute's own language is "likely", and "must in all probability", neither of which is certainty.

"Reason to believe" is not knowledge. Section 2(29) sets a standard of sufficient cause to believe, which a person may satisfy without having believed at all.

And knowledge is not to be equated with what a reasonable person would have known. That is negligence. Knowledge is actual awareness, though it is proved by inference from what a person in his position must have been aware of.

Quick revision

• Knowledge is awareness of a circumstance or of a consequence, without purpose.
• Three statutory levels: likely to cause death; so imminently dangerous that it must in all probability cause death; and reason to believe, defined by section 2(29) as having sufficient cause to believe a thing but not otherwise.
• The illustration to section 2(33): the man who fires an inhabited house to facilitate a robbery causes death voluntarily if he knew it was likely, though he did not intend it and is sorry for it.
• Where a section states intention or knowledge, either limb suffices.
• Wilful blindness is caught in India mainly through "reason to believe", and otherwise by inferring knowledge from the same facts.

Test yourself

1. Give the two ways the Sanhita uses knowledge. As awareness of a circumstance, such as that goods are stolen, and as awareness that a consequence is likely or almost certain to follow from an act.

2. Distinguish "likely to cause death" from "so imminently dangerous that it must in all probability cause death". The first requires awareness of a real risk. The second requires awareness of a danger so immediate that death is the probable outcome, which is a materially higher bar and is the knowledge limb of the graver offence.

3. What does section 2(29) provide, and why does it exist? That a person has reason to believe a thing if he has sufficient cause to believe it but not otherwise. It exists so that a person who has enough before him cannot escape by declining to draw the obvious conclusion.

4. Does knowledge that a consequence is likely establish that the accused wanted it? No. The illustration to section 2(33) says in terms that a person may cause an effect voluntarily through knowledge while not intending it and even regretting it.

In the objective sense, which English law adopted for a period and later abandoned, a person was reckless if he did an act creating an obvious risk, and either gave no thought to the possibility of the risk or recognised it and went on. The second limb of that definition covers a person who never adverted to the risk at all, which in Indian terms is negligence, not rashness.

So the safe statement is: modern English recklessness corresponds to Indian rashness; the discarded objective form did not, because it merged rashness with negligence.

The distinctions, in a table

Worked example

Three drivers each cause a death on the same road.

The first drives at high speed into a crowded market at a religious festival, having seen the crowd, believing that people will get out of the way. He is aware that people may be struck. He hopes they will not be. That is rashness, and on stronger facts it becomes knowledge that death is likely.

The second drives at a normal speed but has not had his brakes checked for three years, and does not think about them at all. The brakes fail. He never adverted to the risk. That is negligence, and whether it is criminal depends on whether it was gross.

The third drives at high speed through the same market intending to run down a man he has quarrelled with. That is intention, and the offence is homicide.

What separates the first two? Not the road, not the speed, and not the death. Only whether the risk was in the driver's mind. That single question is the whole of this chapter.

And a fourth version. He drives at high speed into a crowd so dense that a person must in all probability be killed. Now the state of mind has climbed past rashness to the knowledge limb of the graver offence.

What it does NOT mean

Rashness is not carelessness. Carelessness is a description of conduct; rashness is a state of mind.

Rashness is not a lesser kind of negligence. It is a different state, and it is the higher of the two, because the rash actor knew of the risk.

Negligence in the criminal law is not the civil standard. The neglect must be gross and culpable, and a departure from reasonable care that would found a civil claim is not by itself criminal.

And a rash act need not be dangerous in the abstract. Driving is lawful; driving in a particular way, in particular conditions, is rash.

Quick revision

• The ladder: intention (wants it), knowledge (aware it is likely), rashness (aware it might happen, expects to avoid it), negligence (unaware, and should have been).
• The line that matters is advertence: a rash actor adverts to the risk, a negligent one does not.
• Classical formulation: rashness is hazarding a dangerous act with knowledge that it may cause injury but without intention or knowledge that it will probably be caused, the criminality lying in running the risk with recklessness or indifference.
• Criminal negligence is the gross and culpable failure to take the care it was the imperative duty of the accused to take.
• Modern English recklessness corresponds to Indian rashness; the discarded objective form merged rashness with negligence and is not a safe equivalent.

Test yourself

1. State the single question that separates rashness from negligence. Whether the risk was in the accused's mind. A rash actor adverted to it and misjudged it; a negligent actor never adverted to it at all.

2. Give the classical formulation of criminal rashness. Hazarding a dangerous or wanton act with the knowledge that it may cause injury, but without intention to cause injury or knowledge that it will probably be caused, the criminality lying in running the risk with recklessness or indifference as to the consequences.

3. Is English recklessness the same as Indian rashness? In its modern subjective form, effectively yes. In the objective form English law once used, no, because that form also caught a person who gave no thought to an obvious risk, which is negligence in Indian terms.

4. What is the standard of negligence in the criminal law? Gross and culpable neglect of the care it was the imperative duty of the accused to take. Civil negligence is not enough.

The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not be negligence in criminal law. For negligence to amount to an offence the element of mens rea must be shown to exist, and the degree of negligence must be much higher, gross or of a very high degree. Negligence which is neither gross nor of a high degree may found a civil action but cannot form the basis of a prosecution.

The word "gross" does not appear in the section that punishes causing death by a rash or negligent act, yet it is settled that the expression must be read as qualified by "grossly".

Professional negligence calls for a treatment with a difference. A simple lack of care, an error of judgment or an accident is not proof of negligence in a medical professional. So long as a doctor follows a practice acceptable to the profession of that day he is not liable merely because a better alternative was available, or because a more skilled doctor would have chosen differently. The standard is that of an ordinary competent person exercising ordinary skill in that profession, judged by the knowledge available at the time of the incident and not at the date of trial, and a charge founded on the absence of particular equipment fails if that equipment was not generally available at the time.

To prosecute a medical professional it must be shown that he did or omitted something which, in the given circumstances, no medical professional in his ordinary senses and prudence would have done or omitted, the hazard taken being such that the resulting injury was most likely imminent.

Why it matters here. It is the authoritative Indian statement of the difference between civil and criminal negligence, and the seventh conclusion supplies a test a court can actually apply.

The comparison, in a table

Worked example

A surgeon operates on the wrong limb.

Is it negligence? On the civil standard, plainly. There was a duty, an obvious breach and resulting damage.

Is it criminal? Apply the seventh conclusion. Would any medical professional in his ordinary senses and prudence have done it? No, and that is the point of the example: operating on the wrong limb is not an error of judgment within a range of acceptable practice, it is a failure of a precaution the ordinary experience of the profession has found to be indispensable.

Now change the facts. The surgeon chooses between two accepted techniques and the one he chooses fails, where the other would have succeeded.

Civil? Not on the Bolam test, if the technique he chose was acceptable to a responsible body of professional opinion.

Criminal? Certainly not, and the Court said so in terms: a doctor is not liable merely because a better alternative course was available or because a more skilled doctor would not have chosen that procedure.

And a third version. The hospital's oxygen cylinders are checked once a year instead of weekly, and one is empty when it is needed.

Whose negligence? That is the real question in the case this chapter is built on, and it is the reason the Court insisted the standard be gross: a system failure in a hospital is not converted into the criminal negligence of the individual doctor who reached for the cylinder.

What it does NOT mean

It does not mean negligence is not mens rea. The Court said the element of mens rea must be shown to exist; what it requires is a degree of negligence high enough to carry that quality.

It does not mean a doctor cannot be prosecuted. It means the test is a high one and is applied to the individual's conduct.

It does not mean the word "gross" is in the statute. It is not, and the Court said so; it is read in.

And it does not mean the accident itself proves the negligence. That is res ipsa loquitur, and it has its own chapter for the reason the eighth conclusion gives.

Quick revision

• Negligence: breach of a duty by omitting what a reasonable man would do or doing what a prudent man would not. Components: duty, breach, resulting damage.
• Jacob Mathew (2005): the concept differs in civil and criminal law; the degree must be gross or of a very high degree; negligence neither gross nor high may found a civil action but not a prosecution.
• The word "gross" is not in the section but is read into "rash or negligent act".
• Professional negligence: an error of judgment is not negligence; the standard is the ordinary competent practitioner, judged on the knowledge available at the time; and a charge based on missing equipment fails if it was not then generally available.
• The test for prosecuting a professional: something no professional in his ordinary senses and prudence would have done or omitted, with the resulting injury most likely imminent.
• Res ipsa loquitur is a rule of evidence in civil law and cannot determine criminal liability.

Test yourself

1. State the difference between civil and criminal negligence. The standard of care is the same but the departure must be gross or of a very high degree before it becomes criminal. Negligence sufficient for a civil action is not sufficient for a prosecution.

2. The section punishing a rash or negligent act does not use the word "gross". How does the requirement arise? It is read in. The Supreme Court held in Jacob Mathew that although the word does not appear, it is settled that the expression must be read as qualified by "grossly".

3. Give the test for prosecuting a medical professional. That he did or omitted something which, in the given facts and circumstances, no medical professional in his ordinary senses and prudence would have done or omitted, the hazard being such that the resulting injury was most likely imminent.

4. By what date is a doctor's conduct judged? By the knowledge available at the time of the incident, not at the date of trial, and a charge founded on the absence of equipment fails if that equipment was not generally available at that time.

The correct way to describe this is not that motive has become relevant, but that the draftsman has taken what would otherwise be a motive and made it an ulterior intention, which is part of the mental element. The distinction between the two is then a matter of drafting rather than of principle.

The table

Worked example

Vandana's husband is terminally ill and in great pain. He asks her to end his life. She gives him a fatal dose.

Her intention. To cause his death. That is the intention the homicide provisions require and it is plainly present.

Her motive. Compassion, and his request.

Is the offence made out? Yes. Consent is not a defence to causing death, and the General Exceptions on consent expressly exclude acts intended to cause death. The motive does not touch the definition.

Does the motive do anything at all? A great deal, but not to liability. It is relevant to the sentence, to the exercise of the power to remit, and to the wider argument about whether the law should provide for assisted dying, which is a decriminalisation question and belongs to Module IV.

Now reverse it. Vandana wants her husband's property and gives him the same dose, and he happens to have asked her the same thing an hour earlier. The intention is identical, the motive is different, and the offence is the same offence. Only the sentence will differ.

What it does NOT mean

It does not mean motive is irrelevant. It is evidence, and in a circumstantial case it can decide the outcome.

It does not mean the absence of motive requires an acquittal. Crimes are committed without discoverable motive, and the courts have said so repeatedly.

And it does not mean that every ulterior purpose is a motive. Where the statute writes the ulterior purpose into the definition, it has become an ulterior intention and the prosecution must prove it.

Quick revision

• Intention is the immediate purpose; motive is the reason for forming it.
• Motive is not an ingredient of any offence. A good motive does not excuse and a bad motive does not criminalise.
• Motive is evidence, especially in a circumstantial case, and it is relevant to sentence.
• Where a statute says "with intent to defraud" or "for the purpose of gain", the ulterior object has been made an ulterior intention and is part of the mental element. Section 2(9) is the Sanhita's example.

Test yourself

1. Give the distinction in one sentence and one example. Intention is what a person meant to do and motive is why he meant to do it: a man who steals bread to feed his child intends the dishonest taking and is moved by hunger, and only the first is part of the offence.

2. Does the absence of motive entitle an accused to an acquittal? No. It is a circumstance in his favour, and it may be a weighty one in a case built on circumstantial evidence, but crimes are committed without discoverable motive and its absence proves nothing by itself.

3. When does an ulterior object become part of an offence? When the statute writes it in, as with "with intent to defraud" or "with intent to cause fear in the public". It is then an ulterior intention forming part of the mental element, not a motive.

4. Name two places where motive operates although it is no part of the offence. As evidence, particularly in a circumstantial case; and at the sentencing stage, where the reason for the crime bears directly on the punishment.

But where the exclusion is made out, a person is convicted without any guilty mind at all, and the proposition in the question is then simply false.

The third inaccuracy: liability without personal intention

Two further classes complete the answer.

Omissions. A person is liable for failing to do what he was legally bound to do. He may have intended nothing; he may have been asleep. What makes him liable is the duty and the failure.

The acts of others. A person may be liable for what somebody else did, through the group liability provisions of Module II's topic 5, through abetment, and in the statutory offences that impose vicarious criminal liability on a person in charge of a business. Common intention requires a shared intention, so it is not a counter-example; but a statutory provision making a manager liable for his company's contravention is.

The Sanhita's own answer

The most economical way to show the proposition is too wide is to point at the statute.

The homicide provisions themselves state alternative limbs: an act done with the intention of causing death, or with the intention of causing an injury likely to cause death, or with the knowledge that it is so imminently dangerous that it must in all probability cause death. Two of those three are not intention.

Beside them stand the offences of causing death by a rash or negligent act, which require neither intention nor knowledge.

A statute that grades the same physical act by four different mental states, only one of which is intention, has answered the question in the paper.

Worked example

Four people cause a death on the same day.

Anil shoots a man he has quarrelled with. Intention to cause death. The proposition holds.

Bina sets fire to an occupied building to claim insurance, knowing the occupants must in all probability die. No intention that they die; knowledge that they will. The proposition fails, and the illustration to section 2(33) of the Sanhita covers exactly this case.

Chandan drives at speed through a crowded lane, aware of the risk and confident he will avoid it. Rashness. The proposition fails again.

Devi, a factory occupier, is convicted of a contravention of a safety statute that her manager committed while she was abroad, because the statute makes the occupier liable. She intended nothing and did nothing. The proposition fails completely.

What is the conclusion? That the proposition describes the paradigm case of criminal liability and does not describe its boundaries. That is the answer the question wants.

How to structure the answer in the exam

One. State the proposition and give it its due: the general principle is that liability rests on a guilty mind, and the authorities say so.

Two. Correct the word "intention": mens rea takes many forms, and name them.

Three. Correct the word "no": strict liability offences exist, and give the Nathulal test for when they are made out.

Four. Add the two further classes: omissions and statutory vicarious liability.

Five. Conclude with the Sanhita's own grading of homicide, which shows the point on the face of the statute.

What it does NOT mean

It does not mean the maxim is wrong. The maxim speaks of a guilty mind, which is wide enough to hold all the mental states. The proposition in the question narrows it to intention, and that is where it fails.

It does not mean strict liability is the ordinary case. It is exceptional, and the Privy Council said so.

And it does not mean an answer should simply say "false". The proposition is a compressed truth, and the marks are in showing where the compression loses the law.

Quick revision

• The proposition is a good statement of principle and an inaccurate statement of law.
• Three inaccuracies: intention is only one form of mens rea; strict liability offences require none; and there is liability for omissions and, by statute, for the acts of others.
• Nathulal: mens rea is essential, excluded only expressly or by necessary implication, and by necessary implication only where it is absolutely clear the object of the statute would otherwise be defeated.
• Srinivas Mall Bairoliya: offences without a guilty mind are a limited and exceptional class.
• The Sanhita's own homicide provisions state intention and knowledge as alternative limbs, and the offences of causing death by a rash or negligent act require neither.
• Answer structure: give the proposition its due, correct "intention", correct "no", add omissions and vicarious liability, conclude from the statute.

Test yourself

1. Give the three reasons the proposition is too wide. Because intention is only one of several mental elements the law uses; because offences of strict liability require none at all; and because a person may be liable for an omission or, under a statutory provision, for another person's act, having intended nothing.

2. What is the correct form of the proposition? That criminal liability generally requires a guilty mind, in whichever form the definition of the offence prescribes, and that offences dispensing with it are exceptional.

3. Which two authorities should be cited, and for what? Nathulal, for the test by which a statute is held to exclude mens rea; and Srinivas Mall Bairoliya, for the proposition that offences committable without a guilty mind are a limited and exceptional class.

4. Show from the Sanhita itself that the proposition is too wide. Its homicide provisions state intention and knowledge as alternative limbs of the same offence, and it separately punishes causing death by a rash or negligent act, which requires neither.

"Illegal" and "legally bound to do", section 2(15). The word illegal applies to everything which is an offence, which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be legally bound to do whatever it is illegal in him to omit.

"Act" and "omission", sections 2(1) and 2(25). Each denotes a series as well as a single one.

"Injury", section 2(14). Any harm whatever illegally caused to any person, in body, mind, reputation or property. Note that it covers harm to the mind and to reputation, not only physical harm.

How the words combine with the General Exceptions

Section 3(1) provides that throughout the Sanhita every definition of an offence, every penal provision and every illustration of such a definition or penal provision shall be understood subject to the exceptions contained in the Chapter entitled General Exceptions, though those exceptions are not repeated in the definition, penal provision or illustration.

Its own illustrations make the mechanism plain. The sections defining offences do not say that a child under seven cannot commit them, but they are to be understood subject to the general exception that provides so. And a police officer who without warrant apprehends a person who has committed murder is not guilty of wrongful confinement, because he was bound by law to apprehend him, so the case falls within the general exception that nothing is an offence which is done by a person bound by law to do it.

Section 3(2) adds that every expression explained in any Part of the Sanhita is used in every Part in conformity with the explanation, which is what makes section 2 govern the whole statute.

The method, in a table

Worked example

A section provides that whoever dishonestly takes movable property out of another's possession without that person's consent commits theft.

What must be proved? Not "mens rea". The section's own word, dishonestly, and section 2(7) defines it: with the intention of causing wrongful gain to one person or wrongful loss to another.

So a man who takes an umbrella believing it to be his own? No dishonesty, because he intends no wrongful gain and no wrongful loss. He is not guilty, and the court never has to reach the General Exceptions.

A man who takes his own umbrella out of a repairer's possession without paying? Section 2(38) matters: a person is said to lose wrongfully when he is wrongfully kept out of property. The repairer has a lien, so the owner may be causing him wrongful loss even though the property is the owner's own.

A man who takes a neighbour's ladder for an hour, intending to return it? The intention is to cause a temporary wrongful loss, and on the statutory definitions that is enough, because loss includes being kept out of property.

What has the example shown? That the whole mental enquiry ran through one defined word, and that the answer came from section 2 and not from any doctrine.

What it does NOT mean

It does not mean the Sanhita rejects the doctrine. It implements it by another method, which is the point of the previous chapters.

It does not mean the words are interchangeable. Dishonestly and fraudulently are different, and a charge that uses the wrong one fails.

It does not mean good faith is honesty. Section 2(11) makes due care and attention part of it.

And it does not mean section 2 is exhaustive of the mental elements. Many offences use words the section does not define, such as "intentionally", "knowingly" and "rashly", which carry their ordinary meanings as the courts have settled them.

Quick revision

• 2(1) act, 2(25) omission: a series as well as a single one.
• 2(7) dishonestly: with the intention of causing wrongful gain or wrongful loss; 2(36), 2(37) and 2(38) define those, and 2(38) includes wrongful retaining and being kept out of property.
• 2(9) fraudulently: with the intention to defraud but not otherwise.
• 2(11) good faith: nothing is in good faith which is done without due care and attention. A negative definition.
• 2(14) injury: any harm illegally caused in body, mind, reputation or property.
• 2(15) illegal, and legally bound to do whatever it is illegal to omit.
• 2(29) reason to believe: sufficient cause to believe, but not otherwise.
• 2(33) voluntarily: by means intended, or means known or believed on sufficient cause to be likely to cause the effect. Its illustration is the arson case.
• 3(1) applies the General Exceptions to every definition; 3(2) makes every explained expression carry the same meaning throughout.

Test yourself

1. Give the statutory definition of "voluntarily" and say why it matters. A person causes an effect voluntarily when he causes it by means whereby he intended to cause it, or by means which he knew or had reason to believe to be likely to cause it. It matters because one word carries both intention and foresight, so an offence drafted with it is satisfied by either.

2. Why is the definition of good faith unusual? Because it is negative and objective: nothing is done or believed in good faith which is done or believed without due care and attention. Sincerity alone is therefore not good faith.

3. Which provision applies the General Exceptions to offences that do not mention them? Section 3(1), which provides that every definition of an offence, every penal provision and every illustration is to be understood subject to the General Exceptions although they are not repeated.

4. Does section 2 define every mental element the Sanhita uses? No. It defines the recurring compounds. Words such as intentionally, knowingly and rashly appear in the offences and carry the meanings the courts have settled for them.

The limits

Same kind of harm. The malice transfers only between harms of the same kind. A man who throws a stone at a person and breaks a window has an intention as to the person and has caused damage to property; the intention does not transfer, because the two offences protect different interests. He is liable for an attempt on the person and, as to the window, only if he was rash or negligent.

No transfer where the offence requires a relationship to the particular victim. Where an offence is defined by reference to a particular person, for example an offence against a public servant in the discharge of his duty, the doctrine cannot supply what the definition requires.

The mental element must be complete. Transferred malice moves an existing guilty mind. It does not create one.

Worked example

Farhan, intending to kill Gopal, fires at him in a crowded street.

Version one. The bullet misses Gopal and kills Harish, a stranger. Farhan intended to cause the death of a person and caused the death of a person; the offence is complete and the identity of the victim is immaterial. He is also guilty of an attempt on Gopal.

Version two. The bullet misses everyone and shatters a shop window. His intention as to Gopal does not transfer to the property offence, because the harms are of different kinds. He is guilty of an attempt on Gopal, and of a property offence only if the requisite mental element as to the property is made out.

Version three. The bullet strikes Gopal, who survives, and the ricochet kills Harish. Farhan is guilty of the attempt on Gopal and of the homicide of Harish, and the two are separate offences on separate facts.

Version four. Farhan fires at what he believes to be a scarecrow and kills a man behind it. There is no intention to kill a person at all, so there is nothing to transfer, and the analysis moves to knowledge, rashness or negligence.

What the four versions show. That the doctrine moves a guilty mind between victims of the same kind of harm, and does nothing else.

What it does NOT mean

It does not create liability where there was no mens rea. Version four is the test of that.

It does not transfer between different kinds of offence. Version two is the test of that.

And it is not a separate Indian doctrine. Indian offences are drafted so that the result follows from their own words, which is why the statute has no section for it, and an answer should say so.

Quick revision

• Transferred malice: a guilty mind directed at one victim attaches to the same kind of harm caused to another.
• The Indian statute needs no separate section, because its offences speak of "any person".
• Section 3(9): persons engaged in one criminal act may be guilty of different offences, which is the converse principle that the mental element is individual.
• Section 3(7): an effect caused partly by an act and partly by an omission is the same offence.
• Limits: the harms must be of the same kind; the doctrine cannot supply an element the definition requires as to the particular victim; and it cannot create a mental element that was never there.

Test yourself

1. State the doctrine and say why the Indian statute has no section for it. That a guilty mind directed at one victim attaches to the same kind of harm caused to another. The Indian statute needs no section because its offences are drafted to speak of causing harm to "any person", so the result follows from their own words.

2. Does malice transfer from a person to property? No. The harms are of different kinds and protect different interests, so an intention to injure a person does not supply the mental element for an offence against property.

3. What is the effect of section 3(9), and how does it relate to this doctrine? It provides that persons engaged in one criminal act may be guilty of different offences by means of that act. It is the converse of transferred malice: the physical act is shared and the mental element remains individual to each participant.

4. A man fires at what he believes to be an animal and kills a person. Does the doctrine apply? No. There is no guilty mind directed at a person to be transferred, and liability, if any, rests on knowledge, rashness or negligence.

Held. The appeal was allowed. Lord Reid: the first duty is to consider the words of the Act, and if they show a clear intention to create an absolute offence that is an end of the matter, but such cases are very rare; where a section is silent as to mens rea there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did, so that words appropriate to require mens rea must be read in. Lord Morris: it is a cardinal principle that mens rea is in all ordinary cases an essential ingredient of guilt, and to be concerned in the management of premises used for smoking cannabis necessarily imports knowledge of that use.

Why it matters here. It is the modern statement, and Lord Reid's observation that clear cases are very rare is the sentence that keeps the presumption strong.

The Indian pair

The Indian law is best taught as a pair of cases that go opposite ways, because the second is the first's dissent turned into a judgment.

State of Maharashtra v. Mayer Hans George, AIR 1965 SC 722, decided on 24 August 1964.

Facts. The respondent, a German, left Zurich by air on 27 November 1962 with thirty-four kilograms of gold concealed on his person, for delivery in Manila. The aircraft landed at Bombay on 28 November and he did not leave it. The customs authorities searched him and recovered the gold. He was charged under the Foreign Exchange Regulation Act read with a Reserve Bank notification dated 8 November 1962 and published in the Gazette on 24 November, three days before he left Zurich. It was not disputed that he did not know of the notification. The Magistrate convicted him; the High Court acquitted him.

Held, by the majority. The conviction was restored. On the language of the section, read with the provision throwing on the accused the burden of proving that he had the requisite permission, there was no scope for reading in any further mental condition beyond the voluntary bringing of gold into India; and the very object of the Act and its effectiveness as an instrument for the prevention of smuggling would be entirely frustrated if the accused had to be proved to have known that he was contravening the law. On publication, in the absence of a statutory requirement subordinate legislation need only be published in the usual form, and publication in the Official Gazette is the ordinary method of bringing a notification to the notice of those concerned.

Held, by Subba Rao J, dissenting. There is a presumption that mens rea is an essential ingredient of a statutory offence, rebuttable by express words or by necessary implication; the mere fact that the object of a statute is to promote welfare or to eradicate a grave social evil is not in itself decisive; and mens rea can be excluded by necessary implication only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated.

Why it matters here. It is the leading Indian case for strict liability in a regulatory statute, and the reason a student must know it is that its dissent became the law within a year.

Nathulal v. State of Madhya Pradesh, AIR 1966 SC 43, decided on 22 March 1965.

Facts. A dealer in foodgrains at Dhar was prosecuted for storing wheat for sale without a licence. He had applied, deposited the fee, submitted returns which were accepted without objection, been assured the licence would come, and had never been told his application was rejected.

Held. Mens rea is an essential ingredient of a criminal offence. A statute may exclude it, but it is a sound rule of construction to construe a provision creating an offence in conformity with the common law unless the statute expressly or by necessary implication excludes mens rea. 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. Mens rea may be excluded by necessary implication only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated. On the facts he had acted on a bona fide belief and was acquitted.

Why it matters here. It is the test the Indian courts now apply, and it is Subba Rao J's dissenting reasoning of the previous year adopted as the judgment of the Court.

The two Privy Council and Supreme Court cases on the employer

Srinivas Mall Bairoliya v. Emperor, (1947) 49 Bom LR 688, decided on 28 April 1947.

Facts. A salt agent's employee exacted an extra rupee for each bag of one kind of salt and two rupees for each bag of another over the controlled price, releasing the salt only on payment. The agent was convicted of abetment and sentenced to eighteen months' rigorous imprisonment.

Held. The Board dissented from the High Court's view that where there is an absolute prohibition the master is criminally liable for his servant's acts without any question of mens rea. Offences committable without a guilty mind are a limited and exceptional class, usually of a comparatively minor character, and it would be surprising if a person morally innocent of blame could be held vicariously liable for a servant's crime and imprisoned for up to three years.

Why it matters here. It refuses to import vicarious criminal liability, and it fixes the class of strict liability offences as exceptional and minor.

Ravula Hariprasada Rao v. State, AIR 1951 SC 204, decided on 19 March 1951.

Facts. The appellant held the licence of a petrol filling station at Guntur. His employees supplied petrol without taking the required coupons, and failed to endorse on the coupons the identifying mark of the vehicle. He was absent and had no knowledge. Special leave was granted limited to the single question whether mens rea was necessary.

Held. Unless a statute clearly or by necessary implication rules out mens rea, a person should not be found guilty unless he has a guilty mind. The clauses requiring coupons to be taken did not rule out mens rea, so the absent and ignorant licensee could not be convicted on those charges. But a differently worded clause imposed a duty on the supplier himself to endorse or cause to be endorsed the identifying mark, and on that charge he was liable even without knowledge of his employees' omission.

Why it matters here. It is the clearest demonstration that the answer is given per provision and not per statute. Two clauses of the same Order, one requiring mens rea and one not, decided in a single judgment. Any answer that describes a whole Act as strict or not strict is answering too coarsely.

The factors that displace the presumption

Gathering the cases, a court asks:

The words. Does the section use a mental element word? Does another section in the same statute use one, so that its absence here is deliberate? Does a provision cast a burden on the accused, as in Mayer Hans George?

The subject matter. Is the statute regulatory, addressed to a trade or activity that a person chooses to enter?

The penalty. Is it a fine, or is it imprisonment? Srinivas Mall treats three years' imprisonment as an indication against.

The social object, but only so far. Both Mayer Hans George's dissent and Nathulal say a welfare object is not by itself decisive.

Would reading in mens rea defeat the object? This is the operative question in Nathulal, and the answer must be that it is absolutely clear that it would.

Would strict liability actually promote enforcement? If the person charged could have done nothing differently, punishing him encourages nothing, and this is the reasoning behind the English cases that read mens rea back in.

Worked example

A State enacts that a person who transports sand from a river bed without a permit shall be punishable with imprisonment up to two years. A lorry owner's driver, without his knowledge, carries a load of sand.

Words? The section says nothing about a mental element, and the statute elsewhere uses "knowingly" for a different offence, which is an indication that its absence here is deliberate.

Subject matter? Regulatory: it protects a public resource and is addressed to those who choose to enter the trade.

Penalty? Two years' imprisonment, which on Srinivas Mall points away from strict liability.

Would mens rea defeat the object? Not obviously. Prosecuting the driver, or an owner who knew, catches the mischief.

And the vicarious point? Srinivas Mall and Ravula Hariprasada Rao both say the master is not liable for his servant's contravention unless the provision itself imposes a duty on him. So the analysis turns on whether the section says a person shall not transport, or says that an owner shall ensure that no transport takes place without a permit. The second imposes a personal duty.

What it does NOT mean

It does not mean strict liability is illegitimate. Parliament may create it, and the courts have said so consistently.

It does not mean the presumption is weak. Lord Reid said the clear cases are very rare.

It does not mean a whole statute is strict or not. Ravula Hariprasada Rao decided two clauses of one Order in opposite directions.

And it does not mean an accused escapes by pleading ignorance of the law. That is the next chapter, and Mayer Hans George is the leading Indian illustration of the point.

Quick revision

• Sherras v. De Rutzen: a presumption that mens rea is an essential ingredient, displaced by the words or the subject matter, and both must be considered.
• Sweet v. Parsley: where a section is silent there is a presumption Parliament did not intend to criminalise the blameless, and clear cases of an absolute offence are very rare.
• Mayer Hans George: majority upheld strict liability in a smuggling statute where a provision cast the burden on the accused and the object would otherwise be frustrated. Subba Rao J dissented.
• Nathulal: the dissent became the law. Excluded only expressly or by necessary implication, and by necessary implication only where it is absolutely clear the object would be defeated. A welfare object is not decisive.
• Srinivas Mall Bairoliya: no vicarious criminal liability; such offences are a limited and exceptional class, usually minor.
• Ravula Hariprasada Rao: the answer is per provision, not per statute.

Test yourself

1. State Wright J's proposition and its two displacers. That there is a presumption that mens rea is an essential ingredient in every offence, which is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, both of which must be considered.

2. Why must Mayer Hans George and Nathulal be learnt together? Because they go opposite ways on similar reasoning, and because Subba Rao J's dissent in the first became the judgment of the Court in the second, which is the test the Indian courts now apply.

3. What does Ravula Hariprasada Rao add that no other case does? That the question is decided provision by provision. Two clauses of the same Order were held to differ, one requiring mens rea and one imposing a personal duty on the supplier that made him liable without knowledge.

4. Is a welfare object enough to exclude mens rea? No. Both the dissent in Mayer Hans George and the judgment in Nathulal say that the mere fact that the object of a statute is to promote welfare or to eradicate a grave social evil is not by itself decisive.

Group two: acts where the harm was not chosen.

Section 18, accident in doing a lawful act. Section 19, an act likely to cause harm but done without criminal intent and to prevent other harm, which is necessity.

Group three: incapacity.

Section 20, an act of a child under seven years of age. Section 21, an act of a child above seven and under twelve of immature understanding. Section 22, an act of a person of unsound mind. Section 23, an act of a person incapable of judgment by reason of intoxication caused against his will. Section 24, an offence requiring a particular intent or knowledge committed by a person who is intoxicated.

Group four: consent, communication, compulsion and triviality.

Sections 25 to 30, the consent provisions: an act not intended and not known to be likely to cause death or grievous hurt done by consent; an act not intended to cause death done by consent in good faith for the person's benefit; an act done in good faith for the benefit of a child or person of unsound mind by or with the consent of a guardian; consent known to be given under fear or misconception; the exclusion of acts which are offences independently of the harm caused; and an act done in good faith for a person's benefit without consent. Section 31, communication made in good faith. Section 32, an act to which a person is compelled by threats. Section 33, an act causing slight harm.

How the Chapter operates

Section 3(1) is the provision that makes the Chapter work. Every definition of an offence, every penal provision and every illustration is to be understood subject to the General Exceptions, although the exceptions are not repeated in the definition.

Its first illustration says the point exactly: the sections defining offences do not express that a child under seven cannot commit them, but they are to be understood subject to the general exception that provides so.

Who proves what

The burden is dealt with in Module II's chapter on that question, but the rule is stated here because it belongs to the map.

The prosecution proves the offence, including its mental element, beyond reasonable doubt. The accused who relies on a General Exception carries the burden of bringing his case within it, under section 108 of the Bharatiya Sakshya Adhiniyam, 2023, and he discharges it on a preponderance of probabilities rather than beyond reasonable doubt. He may discharge it out of the prosecution's own evidence.

The second class, in outline

Strict liability is the whole of Module III's topic 11 and only its shape is given here.

The offence dispenses with the mental element as to one or more elements. It arises from the construction of the statute, on the principles in the previous chapter. It is typically regulatory, addressed to a trade or activity, and typically carries a fine rather than imprisonment, though not always. The Privy Council has described such offences as a limited and exceptional class, usually of a comparatively minor character.

The two classes, in a table

Worked example

A pharmacist sells a scheduled drug without a prescription.

Version one. He was shown a prescription that was a forgery so good that he could not have detected it. If the offence requires knowledge, that is a mistake of fact in good faith and section 14 or 17 may apply, or the mental element simply fails. This is class one.

Version two. The statute provides that no person shall sell a scheduled drug except against a prescription, and says nothing about knowledge. On the construction principles, and given a regulatory subject matter and a scheme that casts a burden on the seller, the court may hold no mental element is required. Then the forgery is irrelevant to guilt and relevant only to sentence. This is class two.

Why the difference matters to him. In version one he is acquitted. In version two he is convicted and, if he is fortunate, fined a nominal sum. His conduct was identical.

And that is the standing criticism of class two, taken up in the chapter on the case for and against strict liability.

What it does NOT mean

The General Exceptions are not exceptions to the criminal law. They are part of the definition of every offence, by section 3(1).

They are not all about the mind. Private defence and the judicial act sections are justifications: the act is right, not merely blameless.

And strict liability is not an exception to mens rea in the same sense. In class one the mind is examined and found innocent; in class two it is never examined. Calling both "exceptions to mens rea" is MU's phrase, and an answer should distinguish them within it.

Quick revision

• Two classes: the mind was not guilty (General Exceptions) and the law does not ask (strict liability).
• Chapter III runs sections 14 to 44; the last eleven are private defence.
• Group one, legal authority and mistake about it: 14, 15, 16, 17.
• Group two, harm not chosen: 18 accident, 19 necessity.
• Group three, incapacity: 20 and 21 infancy, 22 unsoundness of mind, 23 and 24 intoxication.
• Group four, consent and the rest: 25 to 30 consent, 31 communication in good faith, 32 compulsion, 33 trifles.
• Section 3(1) applies the Chapter to every definition though not repeated in it.
• The accused bears the burden of bringing himself within an exception, under section 108 of the Bharatiya Sakshya Adhiniyam, on a preponderance.

Test yourself

1. Give the two classes of exception and the difference between them. The General Exceptions, in which the accused's mind is examined and found not guilty or his act is found justified; and strict liability offences, in which the mental element is not an ingredient at all so the mind is never examined.

2. Name the four groups of General Exceptions with their sections. Legal authority and mistake about it, sections 14 to 17; harm not chosen, sections 18 and 19; incapacity, sections 20 to 24; and consent, communication, compulsion and trifles, sections 25 to 33.

3. Which provision applies the Chapter to an offence that never mentions it? Section 3(1), which provides that every definition of an offence, penal provision and illustration is to be understood subject to the General Exceptions although they are not repeated.

4. Where do the private defence sections sit? At the end of the same Chapter, sections 34 to 44. They are General Exceptions, but they are justifications rather than statements that the mind was innocent, and they have their own topic.

Held. By the majority the conviction was restored. In the absence of a statutory requirement, subordinate legislation need only be published in the usual form, and publication in the Official Gazette is the ordinary method of bringing a notification to the notice of persons concerned. The object of the Act and its effectiveness against smuggling would be entirely frustrated if the accused had to be proved to have known that he was contravening the law. Subba Rao J dissented, holding that mens rea was an essential ingredient and had not been proved.

Why it matters here. It is the maxim at its hardest: a foreigner in transit, who never entered India, held liable under a notification published in an Indian Gazette three days earlier that he could not realistically have seen. An answer that gives the maxim without this case has not shown what it costs. An answer that gives the case without the dissent has not shown that the Court itself was divided.

The qualifications

The maxim is not quite absolute, and the qualifications are where the marks are.

Ignorance of a fact that happens to be created by law. A person's belief about who owns a thing, or whether a marriage subsists, is a belief about a fact even though the answer is supplied by law. Such a belief is treated as a mistake of fact where the offence requires a mental element that the belief negatives. This is the narrow but real doorway, and the classic instance is a person who takes property honestly believing it to be his own: he lacks the dishonesty theft requires, and it is no answer that his belief rested on a mistaken view of the law of property.

Where the statute makes knowledge of the law an element. Some provisions punish a person who acts "knowing that he is not authorised" or "in contravention of an order of which he has notice". There the legislature has made notice part of the offence, and the maxim is displaced by the statute itself.

Where the law was not published at all. Mayer Hans George assumed publication in the Gazette. The case would be different if the instrument had never been published in any form, and the Court in that very case suggested that an enactment on the lines of the United Kingdom Statutory Instruments Act 1946, or a suitable amendment of the General Clauses Act, would be desirable to clarify when subordinate legislation comes into effect.

At sentence. Ignorance of the prohibition, where the prohibition is genuinely obscure, is a mitigating circumstance, and courts use it.

The criticism

The criticism is worth a paragraph in a long answer.

The maxim was framed when the criminal law consisted of a small number of offences that everybody knew. It now operates over tens of thousands of provisions, most of them in subordinate legislation, many of them amended without notice to anybody outside a trade. In that setting the fiction that everyone knows the law is not a description of anything, and it functions as a rule of convenience.

The answer to the criticism is not that the fiction is true but that no workable alternative has been found. Every proposal to allow a defence of reasonable ignorance founders on proof: the court would have to decide what each accused could reasonably have been expected to know, which is a question without an answer.

Worked example

Meera, who runs a small shop, sells a food product whose sale was prohibited by a State notification issued last week and published in the State Gazette. She has never seen a Gazette in her life.

Is her ignorance a defence? On the maxim, no. Publication in the Gazette is the ordinary method of notice, and Mayer Hans George holds that it suffices.

Does the offence require knowledge? That is the real question, and it is answered by construing the section. If it requires knowledge of the prohibition, the prosecution must prove it. If it is a strict liability provision, it does not.

Is there a mistake of fact anywhere? If she believed the product was a different product, that is a mistake of fact. If she knew exactly what she was selling and did not know it was banned, that is a mistake of law and it does not help her.

What survives for her? The sentence. A court told that the notification was a week old, unpublicised in her language and unknown in her trade will not impose the maximum, and may impose the minimum the section allows.

What it does NOT mean

It does not mean everybody actually knows the law. It means the law is administered as if they did.

It does not mean a mistake about a legal fact is worthless. A belief about ownership or status can negative a required mental element.

It does not mean a statute cannot require notice. Many do, and where they do the maxim is displaced.

And it does not mean ignorance is irrelevant. It is irrelevant to guilt and often decisive at sentence.

Quick revision

• Ignorantia juris non excusat, and its counterpart ignorantia facti excusat.
• The Sanhita carries it by exclusion: sections 14 and 17 protect a mistake "of fact and not by reason of a mistake of law".
• M'Naghten's Case: the law is administered on the principle that everyone must be taken conclusively to know it, without proof that he does.
• Four reasons: proof, incentive, certainty and publication.
• Mayer Hans George (1964): publication in the Official Gazette is the ordinary method of notice; a foreigner in transit was convicted under a notification published three days before he left Zurich; Subba Rao J dissented.
• Qualifications: a mistake about a fact supplied by law; a statute that makes notice an element; a law never published; and mitigation at sentence.

Test yourself

1. Where does the Indian general criminal statute state the maxim? Nowhere directly. It states its opposite's limit, in the words of sections 14 and 17 that protect a mistake "of fact and not by reason of a mistake of law".

2. Why is Mayer Hans George the hardest illustration of the maxim? Because the accused was a foreigner in transit who never entered India, and the notification he was convicted under had been published in an Indian Gazette three days before he left Zurich. The majority held that publication in the Gazette is the ordinary method of notice.

3. Give the qualification that most often decides a real case. That a mistake about a fact whose answer happens to be supplied by law, such as who owns a thing, is treated as a mistake of fact where it negatives a required mental element. A person who takes property honestly believing it his own lacks dishonesty.

4. What is the answer to the criticism that nobody can know tens of thousands of provisions? Not that the fiction is true, but that no workable alternative exists: a defence of reasonable ignorance would require a court to decide what each accused could be expected to know, which is a question that cannot be answered consistently.

Good faith is relative, and that is the Indian contribution

State of Orissa v. Ram Bahadur Thapa, AIR 1960 Ori 161, decided on 9 November 1959.

Facts. An abandoned aerodrome in Balasore district held valuable scrap and had a local reputation for being haunted, so that the villagers around it would not use its footpaths alone at night. The respondent, a Nepali servant of a Calcutta buyer, and two companions set out at about midnight on 20 May 1958 specifically to see the ghosts. Crossing the aerodrome they saw a flickering light some four hundred cubits away, moving in a strong wind, with figures around it, and one of the party cried out that it was a ghost. The respondent ran ahead and attacked the figures indiscriminately with his khurki. They were women of the locality collecting mohua flowers by the light of a hurricane lantern. One was killed and two were grievously injured. The Sessions Judge acquitted him and the State appealed.

Held. The acquittal was confirmed. Good faith requires due care and attention, but there is no general standard of care and attention applicable to all persons and in all circumstances. The question must be considered with reference to the position of the accused and the circumstances in which he acted, and the law does not expect the same standard from all persons regardless of the position they occupy. On the facts he was a newcomer, a firm believer in ghosts, confirmed in that belief by companions who had come out for the same purpose and one of whom shouted that a ghost was there. That greater care, such as flashing the torch he carried, might have averted the incident was no ground for denying him the protection.

Why it matters here. It is the case on good faith, and its relativity is what makes the exception usable in a country of very unequal education. An answer that states the good faith requirement without this qualification has stated half of it.

Chirangi v. State, AIR 1952 Nag 282, decided on 19 February 1952.

Facts. Chirangi, a widower of forty-five with an abscess on his leg, went with his twelve year old son to a hillock to gather leaves. In the evening his nephew found him asleep with a blood-stained axe and the boy missing. Waking at midnight he said he had become insane, that it had occurred to him that a tiger had come, and that he had struck with the axe. He repeated the account the next morning. He had abrasions consistent with a fall. There was no evidence of insanity before or after, and father and son were devoted to each other. The trial judge convicted him of murder against the unanimous opinion of the four assessors.

Held. The conviction was set aside. The medical evidence showed that his fall, with his existing ailments, could have produced a state of mind in which he in good faith believed the object of his attack was a tiger, and his conduct afterwards was consistent with that. He had no intention of doing wrong. Following earlier decisions holding a person protected who killed believing his target to be a ghost, the ground being that mens rea did not exist and that the object of culpable homicide can only be a living human being, he was protected by the mistake of fact provision.

Why it matters here. It is the strongest illustration in the reports, because the mistake was extreme and the victim was the accused's own child, and the protection was nevertheless given on a finding of good faith.

State of Orissa v. Khora Ghasi, 1978 Cri LJ 1305, decided on 21 March 1978.

Facts. On a dark, drizzling night the deceased entered the accused's maize field to steal maize, wearing a black blanket. The field was surrounded by forest in which bears and boars were abundant and often damaged crops, and the maize stood about four feet high. The accused, watching his field, heard a sound, thought a bear had entered, and shot an arrow. It struck the deceased, who died. There was no enmity, and the accused admitted his mistaken belief consistently before the village panchayat, before a Magistrate and at his trial. He was acquitted and the State appealed.

Held. The appeal was dismissed. The better judicial opinion is that a person who believed in good faith that the object of his assault was not a living human being cannot be convicted of murder or culpable homicide, because mens rea does not exist and because the object of culpable homicide can only be a living human being. The act came clearly within the mistake of fact provision or the accident provision.

Why it matters here. It is the same principle on an ordinary rural fact pattern rather than an exotic one, and it shows the good faith enquiry being conducted from the surrounding circumstances rather than from the accused's assertion.

The comparison, in a table

Worked example

Iqbal, a security guard at a warehouse, sees a man climbing the perimeter wall at two in the morning. He shouts, gets no reply, and strikes the man with his lathi, causing grievous hurt. The man turns out to be the owner's son, who had lost his keys.

Mistake of fact or of law? Of fact: he was mistaken about who the man was and what he was doing, not about what the law permits.

Good faith? The question is whether he acted with due care and attention judged by his own position and the circumstances: the hour, the darkness, his instructions, the absence of any answer to his shout, and whether he had a light he could have used and any reason to doubt.

Would the belief, if true, have made the act lawful? Partly. If the man had been an intruder, Iqbal would have had a right of private defence of property, but only within the limits that topic 8 sets. If he struck a man who was merely climbing and not threatening, the belief does not justify grievous hurt even on his own version.

So what is the outcome? The mistake gets him past the first question and probably past the second, and he fails at the third if his force exceeded what the assumed facts would have justified. That third question is the one most answers forget.

Change one fact. Iqbal shouted, and the man answered "it is me, Rohit, I have lost my keys", and Iqbal struck him anyway. Now there is no mistake of fact at all.

What it does NOT mean

It does not mean a reasonable mistake always excuses. It must also be the kind of mistake that would have made the act lawful.

It does not mean good faith is subjective. Section 2(11) makes due care and attention part of it, so a belief held carelessly is not held in good faith, however sincerely.

It does not mean the standard is the same for everyone. Ram Bahadur Thapa says the opposite in terms.

And a mistake of law is not saved by being reasonable. That is the subject of the previous chapter, and the words "and not by reason of a mistake of law" appear in both sections.

Quick revision

• Section 14: bound by law, or by mistake of fact in good faith believing himself bound. Section 17: justified by law, or by mistake of fact in good faith believing himself justified.
• Both sections say "and not by reason of a mistake of law".
• Three conditions: the mistake must be of fact; held in good faith, which section 2(11) defines as with due care and attention; and such that, if true, it would have made the act lawful.
• Ram Bahadur Thapa (1959): no general standard of care and attention; good faith is judged by the accused's own position and circumstances; the possibility that greater care would have averted the harm is no ground for refusing the protection.
• Chirangi (1952): a father who killed his son believing him a tiger was protected, because mens rea did not exist and the object of culpable homicide can only be a living human being.
• Khora Ghasi (1978): the same principle on an acquittal appeal; the belief is tested from the surrounding circumstances.

Test yourself

1. Quote the words in sections 14 and 17 that exclude a mistake of law. "By reason of a mistake of fact and not by reason of a mistake of law".

2. What does good faith require, and is the standard the same for everyone? Section 2(11) requires due care and attention. The standard is not the same for everyone: Ram Bahadur Thapa holds that there is no general standard applicable to all persons in all circumstances, and that the question is judged by reference to the position of the accused.

3. Give the third condition, which candidates most often omit. That the belief, if it had been true, would have made the act lawful. A mistake that would not have justified the act even on the assumed facts is no defence.

4. On what ground was the accused in Chirangi protected? That he in good faith believed the object of his attack to be a tiger, so mens rea did not exist, and because the object of culpable homicide can only be a living human being.

The case

Syad Akbar v. State of Karnataka, (1980) 1 SCC 30, decided on 25 July 1979.

Facts. The appellant was driving a bus along a village road with deep ditches on either side. A mother crossed ahead of him and went out of sight. Her daughter, a girl of four, followed at a distance, hesitated at the roadside and then dashed across suddenly. The bus had slowed because a narrow bridge lay a few feet ahead. The driver sounded his horn and swerved to the right, but the child came under the left front wheel and was killed. The prosecution declared all its eye-witnesses hostile and cross-examined them. The Sessions Judge and the High Court held that even if that evidence were discarded entirely, the circumstances and nature of the accident were enough, on res ipsa loquitur, to establish rash and negligent driving.

Held, on the witnesses. Evidence cannot be rejected wholesale merely because the party calling a witness declared him hostile and cross-examined him. It is for the judge of fact to decide in each case whether the witness stands thoroughly discredited or can still be believed as to part of his testimony.

Held, on the maxim. Res ipsa loquitur is more a convenient label for certain fact situations than an abstract legal doctrine, and it belongs in reality to the law of torts. Its two-fold requirement is that the res must bespeak negligence and pin it on the defendant, which needs the event to have been within his control. The first of the two approaches above, the presumption that shifts the burden, cannot be invoked in a criminal trial, for two reasons: in a criminal trial the burden of proving everything essential to the charge always rests on the prosecution, and while a preponderance of probability suffices in a civil case a criminal court must be convinced beyond all reasonable doubt. Further, where negligence is an ingredient of the offence, the negligence proved must be culpable or gross and not merely an error of judgment.

Held, on what survives. The second approach may be used. As a convenient aid in the assessment of evidence and in drawing a permissive inference, the maxim can be invoked in a criminal trial where the accused's negligence is a fact in issue, and doing so does not conflict with the law of evidence. But it is subject to every condition that governs a conviction on circumstantial evidence alone: all the circumstances, including the objective circumstances of the accident, must be firmly established; they must be of a determinative tendency pointing unerringly to the guilt of the accused; and they must make the chain so complete that no reasonable hypothesis other than guilt remains.

Why it matters here. It is the direct answer to the printed question, and it is the case that draws the line: the maxim survives in a criminal court only as a way of reasoning, never as a way of relieving the prosecution of its burden.

The point was repeated in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1, whose eighth conclusion is that res ipsa loquitur is only a rule of evidence, operates in the domain of civil law, cannot be pressed into service to determine liability for negligence in the criminal law, and has at most a limited application on a charge of criminal negligence.

Where the evidence statute fits

The Bharatiya Sakshya Adhiniyam, 2023 supplies the framework the maxim has to fit inside.

Section 104 provides for the burden of proof: whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. In a criminal case that is the prosecution.

Section 119 provides that the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. That is a permissive power to infer, and it is exactly the doorway through which the second, weaker form of the maxim enters a criminal trial.

So the correct statement is that res ipsa loquitur in an Indian criminal court is not a doctrine at all: it is an application of the court's ordinary power to presume a fact.

Worked example

A lorry mounts an empty pavement in daylight and kills a pedestrian standing against a wall. The driver is prosecuted. There are no eye-witnesses.

Would the maxim assist a civil claim? Yes. Lorries do not mount pavements in the ordinary course of things without negligence, and the lorry was in the driver's control. The two-fold requirement is satisfied.

Does it prove the criminal charge? No. The prosecution still has to prove gross negligence beyond reasonable doubt, and the maxim cannot shift that burden.

What may the court do with the circumstances? Under section 119 it may presume what is likely, having regard to the common course of natural events. If the circumstances are firmly established, point unerringly to the driver's gross negligence, and leave no reasonable hypothesis consistent with innocence, a conviction may follow.

What would defeat it? A hypothesis consistent with innocence that the circumstances do not exclude: a mechanical failure that could not have been foreseen, a sudden medical event, or another vehicle forcing him off the road. On the tort side those would have to be proved by the defendant; on the criminal side it is enough that they are not excluded.

What it does NOT mean

It does not mean the accident proves the offence. The Court said the mere fact that an accident has happened, the cause of which is unknown, is not evidence of negligence even in tort.

It does not shift the burden in a criminal case. That is the first approach, and it is the one Syad Akbar excluded.

It is not a doctrine of Indian criminal law. It is a label for a way of reasoning, admitted through the ordinary power to presume a fact.

And it does not lower the degree of negligence required. Where negligence is an ingredient, it must still be culpable or gross.

Quick revision

• Res ipsa loquitur: the thing speaks for itself. A tort maxim.
• Two-fold requirement: the res must bespeak negligence and pin it on the defendant, which needs the event to have been within his control.
• Two approaches: a presumption of law shifting the burden; and an aid to evaluating evidence permitting an inference of fact.
• Syad Akbar (1979): the first cannot be used in a criminal trial, because the burden always rests on the prosecution and the standard is beyond reasonable doubt; the second may, subject to every condition governing a conviction on circumstantial evidence.
• Those conditions: the circumstances must be firmly established, of a determinative tendency pointing unerringly to guilt, and must exclude every other reasonable hypothesis.
• Jacob Mathew (2005), conclusion eight: the maxim is only a rule of evidence, operates in civil law, and has at most a limited application on a charge of criminal negligence.
• The statutory doorway is section 119 of the Bharatiya Sakshya Adhiniyam, the power to presume, read against section 104, the burden of proof.

Test yourself

1. Translate the maxim and give its two-fold requirement. The thing speaks for itself. The occurrence must both bespeak negligence and pin it on the defendant, which requires that the thing causing the accident was within his control.

2. Why can the presumption form of the maxim not operate in a criminal trial? Because the burden of proving everything essential to the charge always rests on the prosecution, and because a criminal court must be satisfied beyond reasonable doubt while a civil court decides on a preponderance of probabilities.

3. What form of the maxim does survive, and subject to what? Its use as an aid to evaluating evidence and drawing a permissive inference, subject to the conditions for a conviction on circumstantial evidence: firmly established circumstances, of a determinative tendency, excluding every reasonable hypothesis but guilt.

4. Which provision of the evidence statute is the doorway for that surviving use? Section 119 of the Bharatiya Sakshya Adhiniyam, under which the court may presume the existence of a fact it thinks likely to have happened, having regard to the common course of natural events and human conduct.

Why it matters here. It is the whole of this topic stated by the Supreme Court in a single passage, including the justification for punishing an attempt and the definition of preparation, and it is the most quotable authority a candidate can carry into the hall.

State of Maharashtra v. Mohd. Yakub, (1980) 3 SCC 57, states the same division and adds the modern test.

Facts. The respondents carried forty-three silver ingots by truck and jeep from Bombay to a lonely creek, some concealed in a shawl and some in sawdust bags. When the ingots were unloaded near the creek the customs officials heard the engine of a mechanised sea-craft on the creek side. The Sessions Judge acquitted them, holding that they had only made preparations and had done no act amounting to a direct movement towards the offence, and that until the silver was put in the boat the matter remained at preparation. The High Court agreed.

Held. Allowing the appeal. The expression attempt is wide enough to take in any one or series of acts committed beyond the stage of preparation in moving contraband goods deliberately to the place of embarkation, such acts being reasonably proximate to the completion of the unlawful export. What constitutes an attempt is a mixed question of law and fact and defies precise definition. Crimes consisting of affirmative acts are preceded by conduct in three stages: entertaining the idea or intention; making preparations; and taking deliberate overt steps. The overt step need not be the penultimate act; it is enough that the acts were deliberately done, manifest a clear intention to commit the offence aimed at, and are reasonably proximate to its consummation. Attempt begins where preparation ends.

Why it matters here. It supplies the sentence a student should memorise, attempt begins where preparation ends, and the test the courts now apply.

Why the law starts at the third stage

Three reasons, and an answer that gives them is better than one that lists the stages and stops.

Because a thought harms nobody. Punishing intention would require the State to prove a state of mind with no external evidence at all, and would license punishment for character rather than for conduct.

Because preparation is usually equivocal. Buying a knife, filling a car with petrol and travelling to a place are all consistent with innocence. The law waits until the conduct is unequivocally referable to the offence.

Because an attempt is already an injury. That is Koppula Venkat Rao's answer: the attempt creates alarm, and the alarm is itself a harm; the moral guilt is the same as if the offender had succeeded, and only the injury is less.

The exceptions at each stage

Intention. Not punishable, ever, and there is no exception. The nearest thing is the offence of concealing a design, which punishes a positive act of concealment rather than the design.

Preparation. Punishable in the cases the statute names. Under the Bharatiya Nyaya Sanhita, section 149 punishes collecting men, arms or ammunition or otherwise preparing to wage war with the intention of waging or being prepared to wage war against the Government of India; and section 310(4) punishes whoever makes any preparation for committing dacoity. Section 310(5) goes further and punishes being one of five or more persons assembled for the purpose of committing dacoity.

Attempt. Punishable, either by an express provision for the particular offence or by the residuary section.

Commission. Punishable as the substantive offence, and the attempt merges in it.

The four stages, in a table

Worked example

Nilesh decides to burgle a warehouse.

Stage one. He decides. Nothing is punishable, and if he tells a friend of his decision and does nothing, still nothing.

Stage two. He buys a cutter, studies the guard's shifts and hires a van. Every one of those acts is lawful in itself, and on Malkiat Singh's test, if he changed his mind now the acts already done would be completely harmless. This is preparation.

Stage three. He drives to the warehouse at night, cuts the padlock and pushes the door. On Mohd. Yakub's test these acts are beyond preparation and reasonably proximate to the offence. On Koppula Venkat Rao's, they show the greater degree of determination that marks an attempt. He is guilty of attempt even if he is caught at the door.

Stage four. He enters and takes goods. The offence is complete and the attempt merges.

Now change the offence to dacoity. At stage two Nilesh is already punishable, because section 310(4) punishes preparation for dacoity, and if he is one of five or more assembled for the purpose, section 310(5) punishes that too.

What it does NOT mean

The stages are not always separable in time. In a sudden assault, intention, preparation, attempt and commission may occupy a second, and a court does not have to locate each of them.

Not every crime has four stages. An omission offence has no preparation to speak of. A strict liability offence may be complete without any mental stage at all.

And an attempt is not a lesser version of the offence. It is a distinct offence with its own ingredients, punished on its own footing.

Quick revision

• Four stages: intention, preparation, attempt, commission.
• Intention is never punishable; preparation only under sections 149 (waging war) and 310(4) and (5) (dacoity); attempt under section 62 or an express provision; commission as the substantive offence.
• Koppula Venkat Rao: an attempt is punished because it creates alarm, which is itself an injury, and the moral guilt is the same, only the injury being less, which is why the punishment is half.
• Koppula Venkat Rao on preparation: devising or arranging the means, differing widely from attempt, which is the direct movement towards commission after preparations are made; there is a greater degree of determination in attempt.
• Mohd. Yakub: attempt begins where preparation ends, and the test is acts beyond preparation that are reasonably proximate to the consummation, which need not be the penultimate act.

Test yourself

1. Name the four stages and say which are punishable. Intention, preparation, attempt and commission. Intention is never punishable; preparation only where the statute expressly says so, namely preparing to wage war under section 149 and preparation for dacoity under section 310(4), with assembling for dacoity under section 310(5); attempt and commission are punishable.

2. Why does the law punish an attempt at all? Because, in the Supreme Court's words, every attempt though it falls short of success must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded; only the injury is less, which is why the punishment is half.

3. Give the sentence that marks the boundary. Attempt begins where preparation ends.

4. State the modern test for whether an act is an attempt. Whether the act or acts were committed beyond the stage of preparation, deliberately done, manifesting a clear intention to commit the offence aimed at, and reasonably proximate to its consummation. The act need not be the penultimate act.

The answer to the objection is that there is still conduct: possession is a fact, and belonging to a gang is a fact. But the class is where the rule against punishing intention comes under its greatest strain.

Conspiracy. An agreement is a mental meeting given effect by words, and the offence is complete on the agreement, subject to the proviso requiring an overt act where the agreement is not to commit an offence. The nearest the criminal law comes to punishing a shared intention is conspiracy, and its chapter in Module II says so.

Where intention does its real work

Not as a stage but as an element. The whole of topic 3 is about the mental element in a completed offence, and the intention there is contemporaneous with the act.

The distinction is worth stating plainly: as a stage, intention is not punished; as an element, it is what makes the punished act criminal. A candidate who confuses the two writes that intention is irrelevant, which is the opposite of the truth.

Worked example

Sameer tells three friends that he intends to kill his business partner, repeats it over several weeks, and writes it in a diary.

Is he guilty of anything? No. There is no offence in the intention, and the statements are evidence of it and not an offence in themselves.

What if he asks a friend to help him? That is instigation, and if the friend agrees there is an agreement. Abetment and conspiracy are then in question, and both are Module II's topic 5.

What if he buys a weapon? Preparation, and not punishable for this offence.

And what is the diary for? Evidence. If he later kills, or attempts to, the diary proves the intention that is an element of the offence. That is the difference between intention as a stage and intention as an element.

What it does NOT mean

It does not mean the intention is irrelevant. It is the element that will convict him if he acts.

It does not mean expressing an intention is always lawful. A threat may be an offence in itself, and so may an incitement, but each of those punishes an act of communication, not the state of mind behind it.

And it does not mean the criminal law never reaches early. Conspiracy and the preparation offences reach very early indeed, and they are the exceptions that prove the rule.

Quick revision

• Intention is never punishable as a stage. The will is not taken for the deed unless there is an external act showing progress towards it.
• Four reasons: no harm; it may be abandoned; it cannot be proved; it would punish character.
• The two near-exceptions: possession and association offences, such as section 310(6), belonging to a gang associated for the purpose of habitually committing dacoity; and conspiracy, complete on the agreement.
• As a stage intention is not punished; as an element it is what makes the punished act criminal.

Test yourself

1. Why does the law not punish an intention? Because it causes no harm, may be abandoned, cannot be proved except from the accused's own words, and because punishing it would be to punish a person for his character rather than for his conduct.

2. Quote the Supreme Court's formulation. That mere intention not followed by any act cannot constitute an offence, and that the will is not to be taken for the deed unless there be some external act which shows that progress has been made in the direction of it.

3. Name the offence that comes closest to punishing a shared intention. Criminal conspiracy, which is complete on the agreement, subject to the proviso requiring an overt act where the agreement is not an agreement to commit an offence.

4. Distinguish intention as a stage from intention as an element. As a stage it precedes any act and is not punished. As an element it accompanies the act and is what makes the act criminal.

The offender may still turn back. That is Malkiat Singh's reasoning in terms, and it is the reason the Latin phrase locus poenitentiae, room for repentance, attaches to this stage. The law leaves the door open until the last moment it safely can.

And the harm has not begun. Preparation, by definition, is everything before the direct movement towards the offence. So the general rule is that preparation is not punishable, and the exceptions have to be found in the statute.

The cases where preparation IS punishable

MU asked for these by name. There are four kinds and they should be given in this order.

One: preparing to wage war. Section 149 of the Bharatiya Nyaya Sanhita punishes whoever collects men, arms or ammunition, or otherwise prepares to wage war, with the intention of either waging or being prepared to wage war against the Government of India, with imprisonment for life or imprisonment up to ten years and a fine.

Two: preparation for dacoity. Section 310(4) punishes whoever makes any preparation for committing dacoity with rigorous imprisonment up to ten years and a fine. Section 310(5) goes a step earlier and punishes whoever is one of five or more persons assembled for the purpose of committing dacoity with rigorous imprisonment up to seven years and a fine. Section 310(6) punishes belonging to a gang of persons associated for the purpose of habitually committing dacoity.

Three: possession offences that punish preparation in substance. Where a section punishes possession of a counterfeiting instrument, or of materials with intent to use them for forgery, the conduct punished is preparation given a different name.

Four: the concealment offences, which every answer omits. Section 58 punishes a person who, intending to facilitate or knowing it likely that he will facilitate the commission of an offence punishable with death or imprisonment for life, voluntarily conceals by any act or omission, or by the use of encryption or any other information hiding tool, the existence of a design to commit such offence, or makes a representation about the design that he knows to be false. The punishment is up to seven years if the offence is committed and up to three years if it is not. Section 59 is the same offence for a public servant whose duty it is to prevent the offence, punished more severely. Section 60 is the corresponding provision where the offence concealed is punishable with imprisonment.

The reference to encryption and information hiding tools is new in 2023 and is worth naming, because it shows the legislature extending a nineteenth century offence to a modern method.

The distinction, in a table

Worked example

Take Malkiat Singh's facts and change them one at a time.

As decided. The lorry is stopped thirty-two miles from Delhi, inside Punjab. He might have turned back. Preparation, and no offence.

Change one. The lorry is stopped a hundred yards from the boundary, on the highway, moving towards it. Now the acts are not harmless if he stops, because he is at the point of crossing, and on Mohd. Yakub's test they are reasonably proximate. This is an attempt.

Change two. The paddy is not paddy but the load for a dacoity, and five men are sitting in the lorry with weapons. Sections 310(4) and 310(5) apply at once, and the men are punishable at the stage of preparation and even at the stage of assembling.

Change three. One of them has sent an encrypted message concealing the plan from a person who would have reported it. Section 58 is in question, and the punishment differs according to whether the dacoity is afterwards committed.

What the four versions show. That the same conduct at the same stage is punishable or not according to what offence is being prepared, which is exactly what MU's question asks for.

What it does NOT mean

It does not mean preparation is innocent. It means it is not punished, which is a different proposition.

It does not mean the line is easy to draw. The Supreme Court has said the dividing line is sometimes thin and must be decided on the facts of each case.

And it does not mean an act of preparation cannot be an offence in itself. Buying a weapon may be an offence under the arms legislation, and that is a separate offence, not a punishment of preparation.

Quick revision

• Preparation is devising or arranging the means; attempt is the direct movement towards commission after preparations are made.
• Malkiat Singh: preparation where, if the offender changes his mind and does not proceed, the acts already done would be completely harmless.
• Locus poenitentiae, room for repentance, is the reason the law waits.
• Punishable preparations: section 149, collecting men, arms or ammunition or otherwise preparing to wage war against the Government of India; section 310(4), preparation for dacoity; section 310(5), being one of five or more assembled for dacoity; section 310(6), belonging to a gang; the possession offences; and the concealment offences, sections 58, 59 and 60, which now extend to concealment by encryption or any other information hiding tool.

Test yourself

1. Give the test for distinguishing preparation from attempt. Whether the overt acts already done are such that, if the offender changes his mind and does not proceed further, the acts already done would be completely harmless. If they would, the stage is preparation.

2. In which cases is preparation itself an offence? Preparing to wage war against the Government of India, under section 149; making preparation for dacoity, under section 310(4), with assembling for that purpose under 310(5) and belonging to a gang under 310(6); the possession offences that punish preparation in substance; and the concealment of a design under sections 58, 59 and 60.

3. What is new about the concealment offences in 2023? They now extend to concealing the existence of a design by the use of encryption or any other information hiding tool, which brings a nineteenth century offence to a modern method.

4. Why does the law leave room for repentance? Because acts of preparation are equivocal and consistent with innocence, and because the offender may still change his mind, so that punishing at that stage would catch those who would have turned back along with those who would not.

Why it matters here. It is the definition every later Indian case starts from, and its rejection of the penultimate act test is what makes the definition workable. The identification of the exact moment, the despatch of the application, is the model for how a court decides these cases.

The rejection of the penultimate act test

The older view, in England and in some Indian decisions, was that an attempt is the last act the accused can do before the offence is complete. The Supreme Court rejected it twice in the same month.

Om Parkash v. State of Punjab, AIR 1961 SC 1782, decided on 24 April 1961.

Facts. The appellant's wife, married to him in 1951, was ill-treated and undernourished, and in 1956 was deliberately starved and not allowed to leave the house, being only sometimes thrown a morsel. On 5 June 1956 she escaped and reached the Civil Hospital at Ludhiana, where the doctor sent a note to the police saying she was seriously ill and might collapse at any moment. The High Court found his object was to confine her and deprive her of regular food in pursuance of a scheme of regular starvation to accelerate her end, and convicted him of attempt to murder. He argued that depriving her of food could not by itself have caused death, the starvation needing to continue longer.

Held. A person commits an attempt to murder when he has an intention to commit murder and, in pursuance of that intention, does an act towards its commission, irrespective of whether that act is the penultimate act or not. The word "act" in the section does not mean only a particular act but denotes, under the general explanations, a series of acts as well as a single act. Abhayanand Mishra was followed.

Why it matters here. Its facts show why the penultimate act test is unworkable. A scheme of starvation has no single last act, so a test that asks for one produces an acquittal in the clearest possible case.

The statutory provision

Section 62 of the Bharatiya Nyaya Sanhita: whoever attempts to commit an offence punishable by the Sanhita with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made for the punishment of such attempt, be punished with imprisonment of any description provided for the offence for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term provided for that offence, or with such fine as is provided for the offence, or with both.

Its two illustrations are the statute teaching the impossible attempt point. A makes an attempt to steal jewels by breaking open a box and finds after opening it that there is no jewel in it: he has done an act towards the commission of theft and is guilty. A makes an attempt to pick Z's pocket by thrusting his hand into it and fails because Z's pocket is empty: A is guilty.

Why the punishment is half

Koppula Venkat Rao v. State of Andhra Pradesh, (2004) 3 SCC 602, gives the reason in the Court's own words: an attempt is made punishable because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded; moral guilt must be united to injury to justify punishment, and as the injury is not as great as if the act had been committed, only half the punishment is awarded.

That single sentence explains both why an attempt is an offence and why the section fixes the penalty at half.

Worked example

Anita, intending to poison her employer, buys poison, keeps it in her bag for a week, then pours it into his tea and places the cup on his desk. He is called away and never drinks it.

Intention to commit that offence? Yes, to cause death.

Preparations complete? Yes, when the poison was bought and carried.

An act towards the commission? Yes, pouring the poison and placing the cup. On Abhayanand Mishra it need not be the last act; the offence would be complete on drinking, and the pouring is an act during the course of committing it.

Would it matter that he never drank? No. It is not necessary that the transaction commenced must end in the offence if not interrupted.

Would it matter that the poison was too weak to kill? That is a different question, and it is the subject of the chapter on impossible attempts.

When exactly did the attempt begin? Follow Abhayanand Mishra's method and identify the moment: not at the purchase, not at the carrying, but at the pouring, which is the first act referable to nothing but the offence.

What it does NOT mean

It does not mean any act after preparation is an attempt. The act must be reasonably proximate to the offence, and that is the next chapter.

It does not mean the attempt must be capable of succeeding on the facts. The illustrations to section 62 show the opposite for two cases.

And it does not mean an attempt is a half-offence. It is a distinct offence, punished at half the maximum because the injury is less, not because the guilt is.

Quick revision

• Three ingredients: the intention to commit that particular offence; preparations made; and an act towards its commission.
• Abhayanand Mishra: the act need not be the penultimate act but must be an act during the course of committing the offence; and it is not necessary that the transaction would have ended in the offence if uninterrupted. Preparation was complete on preparing the application; the attempt began the moment he despatched it.
• Om Parkash: an attempt to murder is complete on an act in pursuance of the intention irrespective of whether it is the penultimate act, and "act" includes a series of acts.
• Section 62: any act towards the commission, where no express provision exists, punished with up to one-half of the imprisonment provided for the offence. Its two illustrations cover the empty box and the empty pocket.
• Koppula Venkat Rao: an attempt is punished because it creates alarm, which is itself an injury, and the punishment is half because the injury is less.

Test yourself

1. State the three ingredients of an attempt. The intention to commit that particular offence; preparations having been made; and an act done towards the commission of the offence with that intention.

2. Must the act be the last act the accused could do? No. Abhayanand Mishra holds that it need not be the penultimate act, and Om Parkash applies the same rule to attempt to murder, where a scheme of starvation has no single last act.

3. What punishment does section 62 provide, and when does it apply? Up to one-half of the imprisonment for life or of the longest term provided for the offence, or the fine provided, or both. It applies only where no express provision is made for the punishment of the attempt.

4. Why is the punishment half? Because the moral guilt is the same as if the offender had succeeded, but the injury is less; the alarm created by the attempt is itself an injury, and punishment requires moral guilt united to injury.

Malkiat Singh v. State of Punjab, AIR 1970 SC 713.

Facts. An Order under the Essential Commodities Act prohibited the export of paddy from Punjab without a permit. A lorry carrying paddy booked to Delhi was stopped thirty-two miles from Delhi, that is inside Punjab, the boundary being eighteen miles from Delhi.

Held. There was no attempt. The paddy was seized well inside Punjab, and the appellants might have changed their minds at any place between the place of seizure and the boundary. The test is whether the overt acts already done are such that, if the offender changes his mind and does not proceed further, the acts already done would be completely harmless.

Why it matters here. It is the only test that gives a candidate a question that can be applied mechanically to a set of facts, and it is the test MU's problem questions reward.

Its weakness. Almost any conduct short of the very last act leaves some room for repentance, so the test taken alone would push the boundary too late. The Supreme Court's own answer is Mohd. Yakub, where the accused could still have driven away and yet was held to have attempted.

Test three: equivocality

The question. Do the accused's acts speak for themselves, so that they are consistent with no purpose except the offence?

On this test an act is an attempt when it is unequivocally referable to the commission of the offence. Buying a box of matches and standing near a haystack is equivocal; striking the match beside the haystack is not.

Its use. It is the best explanation of Abhayanand Mishra's choice of moment: preparing the application was consistent with many things, and despatching it was consistent with nothing but the fraud.

Its weakness. It excludes cases where the accused has confessed his purpose, since the act's own ambiguity is then irrelevant; and it can exclude a man caught at the very door of the offence if his conduct is capable of an innocent reading.

Test four: social danger

The question. Has the conduct reached a point at which the community's security is endangered, judged by the seriousness of the offence intended and the nearness to it?

Its use. It explains why the law reaches earlier for graver offences, and it is the principle behind the punishable preparations for waging war and for dacoity.

Its weakness. It is not a test at all but a policy, and it gives a court no way of saying where the line falls in a particular case.

The four tests, in a table

Worked example

Bhaskar intends to burn down a rival's godown. Take the story one act at a time and apply the tests.

He buys a can of petrol. Proximity: far. Repentance: total, the acts are harmless. Equivocality: high, people buy petrol. Not an attempt.

He drives to the godown at two in the morning with the can. Proximity: closer. Repentance: he could still drive away, and Malkiat Singh says so. Equivocality: reduced but not gone. On the authorities this is still preparation, and Malkiat Singh is the case for saying so.

He pours the petrol against the godown wall. Proximity: reasonably proximate on Mohd. Yakub. Repentance: the acts done are no longer harmless, because petrol has been poured against a building. Equivocality: gone. This is an attempt.

He strikes a match and it blows out. Plainly an attempt on every test, and on the rejected last act test too.

He is arrested at the second stage but has told a friend what he means to do. Equivocality would still call the acts equivocal, which shows the test's weakness; proximity and repentance both say preparation; and the Indian answer is preparation, because Malkiat Singh was decided on facts no stronger.

What it does NOT mean

The tests are not alternatives a court chooses between. They are ways of asking the same question, and an Indian judgment will usually use proximity and repentance together.

No test produces a mechanical answer. Mohd. Yakub says in terms that what constitutes an attempt is a mixed question of law and fact and defies precise definition.

And the last act test is not the law. It is the position the Supreme Court has twice rejected, and an answer that gives it as the Indian rule is wrong.

Quick revision

• Four tests: proximity, locus poenitentiae, equivocality, social danger.
• The last act form of proximity is rejected in India: Abhayanand Mishra and Om Parkash.
• The Indian test is Mohd. Yakub's: acts beyond preparation, deliberately done, manifesting a clear intention, and reasonably proximate to the consummation. Attempt begins where preparation ends.
• Malkiat Singh: preparation where, if he stopped now, the acts already done would be completely harmless.
• Equivocality explains Abhayanand Mishra's choice of the moment of despatch; social danger explains the punishable preparations.

Test yourself

1. Which test does an Indian court apply, and what is its formula? Reasonable proximity, from Mohd. Yakub: acts committed beyond the stage of preparation, deliberately done, manifesting a clear intention to commit the offence aimed at, and reasonably proximate to its consummation.

2. State the locus poenitentiae test and its weakness. Whether the overt acts already done would be completely harmless if the offender changed his mind and did not proceed. Its weakness is that almost any conduct short of the last act leaves some room for repentance, so used alone it would place the boundary far too late.

3. Why was the last act test rejected? Because it acquits in the clearest cases. Om Parkash involved a scheme of starvation, which has no single last act, and Abhayanand Mishra held that the act relied on need not be the penultimate one.

4. What does the equivocality test add? It explains why the moment of despatch was the moment of attempt in Abhayanand Mishra: preparing the application was consistent with innocent purposes, and posting it was consistent with nothing but the fraud.

Why it matters here. It supplies the dividing line for this classification, in a phrase: was the failure due to a factor independent of the offender.

Classification three: by how the law punishes

By an express provision. Some attempts are separate offences with their own sections and their own punishments: attempt to murder, attempt to commit culpable homicide, attempt to commit robbery or dacoity when armed with a deadly weapon, and attempt to commit suicide as it once stood.

As part of the substantive offence. Some offences are drafted so that the attempt is included in the definition. Dacoity is committed by five or more persons who conjointly commit or attempt to commit a robbery, so an attempt is dacoity. Sedition-type offences and offences of waging war are drafted to include attempting.

By the residuary section. Section 62 of the Sanhita catches everything else: whoever attempts to commit an offence punishable with imprisonment for life or imprisonment, and in such attempt does any act towards its commission, is punished where no express provision is made for the punishment of such attempt.

The order matters: the residuary section applies only if neither of the first two does, and an answer that reaches for it first has got the structure wrong.

The fourth question: abandonment

Not a classification but the question a classification of attempts invites, and worth a paragraph.

If a person begins an attempt and then voluntarily desists before the offence is complete, is he guilty of the attempt he had already committed?

The Indian answer is yes. The offence of attempt is complete as soon as an act towards the commission is done with the necessary intention. Nothing in the section makes subsequent abandonment a defence, and Abhayanand Mishra holds that it is not necessary that the transaction, if uninterrupted, would have ended in the offence.

What abandonment does affect. The sentence, powerfully; and the earlier question of whether the stage of attempt had been reached at all, because Malkiat Singh's test asks precisely whether the accused might still have changed his mind. So a person who abandons early is likely to be at the stage of preparation and not guilty; a person who abandons late has already committed the attempt and is guilty, with mitigation.

The classifications, in a table

Worked example

Four men each try to steal from the same house on the same night.

Ganesh breaks the lock, enters, finds the safe empty and leaves. A complete attempt, failing through a factor independent of him, punished under the residuary section unless an express provision covers house-breaking with intent.

Harish is seized on the compound wall with a crowbar. An incomplete attempt, and the question is whether he had passed beyond preparation, on which the crowbar in his hand at the wall is strong.

Ilyas tries to open the door with a key he had made from a photograph, which does not fit any lock in the world because he copied the wrong photograph. Inherently impossible means, and on Asgarali Pradhania his failure was not due to a factor independent of himself. But contrast the illustrations to section 62: the empty box and the empty pocket are attempts. The distinction is that in those the method would have worked and the object was absent, while here the method could never have worked at all.

Jamal cuts the padlock, then thinks better of it and goes home. The attempt was complete when he cut the padlock, and abandonment is no defence, though it will weigh heavily at sentence.

What it does NOT mean

The kinds are not different offences. They are ways of describing attempts, and the charge is the same.

A complete attempt is not more serious in law. It is more serious in fact, and the difference appears in the sentence.

And abandonment is not a defence in India. It goes to whether the stage was reached, and to sentence.

Quick revision

• By failure: complete or finished; incomplete or unfinished. Affects sentence, not liability.
• By impossibility: failure through a factor independent of the offender, which is an attempt, and inherently impossible means, which on Asgarali Pradhania is not.
• By punishment: an express provision; included in the definition, as dacoity includes attempting robbery; or the residuary section 62, which applies only where no express provision is made.
• Abandonment is no defence once the attempt is complete, but bears on whether the stage was reached and on sentence.

Test yourself

1. Distinguish a complete from an incomplete attempt and say what turns on it. In a complete attempt the accused did everything he intended and the offence did not follow; in an incomplete one he was stopped before finishing. Liability is the same, since the section punishes any act towards the commission; the difference goes to sentence.

2. Which case supplies the test for the impossibility classification, and what is it? Asgarali Pradhania. The question is whether the failure was due to a factor independent of the offender; where the means could never have worked, it was not.

3. Give the three modes by which the law punishes attempts, in order of application. An express provision creating a separate offence; a definition that includes attempting, as dacoity does; and the residuary section 62, which applies only where no express provision is made.

4. Is voluntary abandonment a defence? No. The attempt is complete as soon as an act towards the commission is done with the necessary intention, and it is not necessary that the transaction would have ended in the offence. Abandonment goes to sentence, and early abandonment may show the stage of attempt was never reached.

Held. The conviction was set aside and the appellant acquitted. What he did was not an act done towards the commission of the offence of causing a miscarriage. Neither the liquid nor the powder being harmful, they could not have caused a miscarriage. The appellant's failure was not due to a factor independent of himself. The judgment reviews the English authorities, notes that the illustrations to the section show that the drafters of the Indian Code did not intend to follow the older English decisions in which an attempt at the impossible could not be an attempt, and declines to lay down any general proposition.

Why it matters here. It supplies the phrase by which the boundary is drawn, and it is the only Indian authority a candidate needs on this point. The examiner's expectation is that the illustrations and this case will be reconciled, not that one will be preferred.

Reconciling them

The reconciliation is straightforward once it is seen.

In the illustrations, the method would have worked. Thrusting a hand into a pocket is exactly how a pocket is picked, and it succeeds every time there is something in the pocket. The reason for failure was a fact outside the accused: what happened to be in the pocket.

In Asgarali Pradhania, the method could never have worked. Copper sulphate does not cause miscarriage in any quantity that a person would survive. No amount of luck would have produced the offence, and the reason for failure was inside the accused's own choice of means.

Hence the phrase: was the failure due to a factor independent of himself. In the illustrations it was; in the case it was not.

The criticism

The distinction is criticised, and an LL.M. answer should say why.

It rewards incompetence. A man who tries to poison with sugar is acquitted and a man who tries with arsenic and is stopped is convicted, though both are equally dangerous in intention.

It is unstable. A dose too small to cause a miscarriage is inherently insufficient; a dose that would have worked in a stronger woman is not. The line depends on expert evidence about quantities that, in Asgarali Pradhania itself, were never ascertained.

And it does not fit the reason for punishing attempts. If the reason is the alarm created and the moral guilt of the offender, as the Supreme Court has said, then the man with the harmless powder has the same guilt and creates the same alarm.

The answer to the criticism. That the section requires an act towards the commission of the offence, and an act that could not possibly advance the offence is not such an act. The rule is a consequence of the statutory words rather than of a policy about dangerousness.

Worked example

Four attempts at the same offence.

One. Kamal fires at Lalit with a loaded pistol and misses. An attempt: the method works and the failure was outside him.

Two. Kamal fires at the bed where Lalit usually sleeps, and Lalit is out. An attempt, and this is illustration (a) in another form.

Three. Kamal fires at Lalit with a pistol whose firing pin was removed a year ago without his knowledge. Debatable, and the answer is that the failure was a factor independent of him, since he believed the weapon loaded and functional, so on the illustrations this is an attempt.

Four. Kamal, believing in witchcraft, performs a ceremony intended to kill Lalit at a distance. On Asgarali Pradhania this is not an attempt: the means could never have worked and the failure was not due to any outside factor. It is also the case that shows the criticism at its weakest, because nobody thinks the ceremony endangered Lalit.

What the four show. That the operative question is always the same, and that the hard cases are those in which the accused's belief about his means was reasonable.

What it does NOT mean

It does not mean impossibility is a defence in India. The two illustrations say the opposite for factual impossibility.

It does not mean legal impossibility is the same question. Where the intended conduct was not an offence at all, there is nothing to attempt, and that is not an impossibility rule but the ordinary principle of legality.

And it does not mean the older English rule applies. Asgarali Pradhania records expressly that the drafters of the Code did not intend to follow it.

Quick revision

• Factual impossibility: the illustrations to section 62, the empty box and the empty pocket. Both are attempts.
• Legal impossibility: no offence to attempt, so no attempt.
• Asgarali Pradhania: where the means could never have worked, no act towards the commission has been done, and the failure was not due to a factor independent of the offender.
• The reconciliation: in the illustrations the method would have worked and the failure was outside the accused; in the case the method could never have worked.
• The criticism: it rewards incompetence, is unstable on the evidence, and does not fit the alarm-and-guilt justification for punishing attempts.

Test yourself

1. Give the two illustrations to the residuary section and say what they establish. A breaks open a box to steal jewels and finds it empty, and A thrusts his hand into Z's empty pocket. Both are guilty. They establish that factual impossibility is no answer in India.

2. What is the test in Asgarali Pradhania? Whether the failure was due to a factor independent of the offender. Where the means were inherently incapable of producing the result, it was not, and no act towards the commission of the offence has been done.

3. Reconcile the case with the illustrations. In the illustrations the method used was one that would have worked, and the failure was caused by a fact outside the accused. In the case the method could never have worked in any circumstances, so the failure lay in the accused's own choice of means.

4. Give one criticism of the distinction and the answer to it. That it rewards incompetence, since the man who chooses a useless poison is acquitted and the man who chooses a real one is convicted though both are equally guilty in intention. The answer is that the section requires an act towards the commission of the offence, and an act incapable of advancing the offence is not such an act.

One: the attempt is the offence. Some definitions include attempting. Dacoity is committed by five or more persons who conjointly commit or attempt to commit a robbery, so an attempted robbery by five is dacoity itself.

Two: an express section for the attempt. Attempt to murder and attempt to commit culpable homicide have their own provisions with their own punishments, which is why Om Parkash was decided under the attempt to murder section and not under the residuary one.

Three: an express section for an attempt in a particular circumstance. Section 312 punishes an attempt to commit robbery or dacoity when armed with a deadly weapon.

Four: the residuary section 62. Everything else.

What changed in 2023

The numbering. Section 511 of the Indian Penal Code became section 62 of the Sanhita. A candidate answering a paper written in Penal Code numbering should give both.

The words "transportation" removed. The old section spoke of an offence punishable with transportation or imprisonment, transportation having been replaced by imprisonment for life in 1955 while the word lingered in some texts. The Sanhita speaks of imprisonment for life or imprisonment.

The illustrations unchanged. Both illustrations, the empty box and the empty pocket, were reproduced word for word, which matters because they are the whole of the Indian rule on factual impossibility.

The substance unchanged. The three ingredients, the rejection of the penultimate act requirement and the ceiling of one half all survive, so the entire case law under section 511 remains good.

The relationship with abetment and conspiracy

Section 62 sits at the end of a run of provisions that all punish conduct short of a completed offence, and the three should be seen together.

Sections 45 to 60 punish abetment, which is participation in an offence by another. Section 61 punishes criminal conspiracy, which is an agreement. Section 62 punishes attempt, which is an individual's own act towards the offence.

The three are the inchoate offences and they have a chapter of their own.

Worked example

Nandini tries to commit criminal breach of trust in respect of a sum entrusted to her. She transfers the money to her own account and is detected before she can withdraw it.

Which of the four routes? The Sanhita makes no express provision for an attempt to commit criminal breach of trust, and the definition does not include attempting. So the residuary section 62 applies.

Is the offence within the section? Criminal breach of trust is punishable with imprisonment, so yes.

Did she do an act towards the commission? Transferring the money is an act during the course of committing the offence, and on Abhayanand Mishra it need not be the last act.

What is the maximum sentence? Half the longest term provided for the substantive offence, plus the fine the offence provides, of the description of imprisonment the offence provides.

Now change the offence to murder. Section 62 does not apply at all, because the Sanhita makes express provision for attempt to murder, and the sentence is what that section provides rather than half of the punishment for murder.

What it does NOT mean

It does not apply to every attempt. It is expressly residuary.

It does not halve the fine. Only the imprisonment is halved.

It does not reach offences punishable with fine only. The section names imprisonment for life or imprisonment.

And it does not reach special laws. An attempt under a special law is punishable only if that law says so.

Quick revision

• Section 62, formerly section 511 of the Penal Code.
• Applies to an offence under the Sanhita punishable with imprisonment for life or imprisonment, and only where no express provision is made for the attempt.
• Requires any act towards the commission, not the last act.
• Punishment: up to one-half of the imprisonment for life or of the longest term, of the description provided for the offence, or the fine provided for the offence, which is not halved, or both.
• Two illustrations, the empty box and the empty pocket, reproduced unchanged in 2023.
• Four routes: the definition includes attempting; an express attempt section; an express section for a circumstance; or section 62.

Test yourself

1. When does section 62 not apply, and give an example. Where the Sanhita makes express provision for the punishment of the attempt. Attempt to murder has its own section, so section 62 does not apply to it.

2. What is the maximum punishment under section 62? Imprisonment of any description provided for the offence, for a term up to one-half of the imprisonment for life or of the longest term provided for the offence, or the fine provided for the offence, or both. The fine is not halved.

3. What changed from section 511 in 2023? The numbering, and the removal of the obsolete reference to transportation. The three ingredients, the illustrations and the ceiling of one half are unchanged, so the case law under section 511 is still good.

4. Does section 62 reach an attempt to commit an offence under a special law? No. It is confined to offences punishable by the Sanhita. An attempt under a special law is punishable only if that law provides for it.

Liability of others, through the group liability provisions, which is Module II's topic 5.

Punishment, which is Module III's topic 9.

Worked example

Rohan enters a shop after closing, opens the till, takes the cash and is caught in the doorway.

Theft. Complete the moment he moved the cash out of the shopkeeper's possession with the dishonest intention. Being caught in the doorway is irrelevant to completion.

Was there an attempt at any point? Yes, from breaking the shutter until the moving of the cash. It merged.

Suppose the till was empty. Then the theft was never completed, the attempt stands alone, and the empty till is illustration (a) to section 62 in another form.

Suppose he took the cash and then put it back. Still theft. The offence was complete on the moving, and returning the property afterwards is relevant to sentence and, if the offence is compoundable, to composition.

Suppose he entered intending to steal and left having stolen nothing. House-trespass with intent may be complete on entry, and the attempted theft stands or falls on whether he passed beyond preparation.

What it does NOT mean

Commission is not the same as success. A man who kills the wrong person has completed the offence, because the definition speaks of causing the death of any person.

Completion does not end the analysis. Whether the offence is murder or culpable homicide, and whether an exception applies, are questions that arise after the offence is complete.

And merger is not double jeopardy. Double jeopardy bars a second prosecution; merger governs which offence is charged in the first.

Quick revision

• The offence is complete when every ingredient of its own definition is satisfied. There is no general rule.
• Conduct crimes complete on the conduct; result crimes on the result.
• The attempt merges in the completed offence, and section 9 states the principle that where an offence is made up of parts which are themselves offences, the offender is punished for only one unless expressly provided.
• Merger does not prevent alternative charges, and there is no merger where the attempt and the completed offence concern different victims.

Test yourself

1. When is an offence complete? When every ingredient of its own definition is satisfied. A conduct crime is complete on the conduct and a result crime only when the required consequence is caused.

2. What happens to the attempt when the offence is completed? It merges in the completed offence, and the offender is charged and punished for the offence.

3. Which provision states the principle behind merger? Section 9 of the Bharatiya Nyaya Sanhita, that where anything which is an offence is made up of parts, any of which is itself an offence, the offender shall not be punished with the punishment of more than one of them unless it is expressly so provided.

4. Give an offence that is complete at what would elsewhere be the stage of attempt. Dacoity, which is committed where five or more persons conjointly commit or attempt to commit a robbery.

Three further reasons apply to the group.

Prevention. The police cannot be required to wait until a murder has happened before intervening.

Danger. A person who has agreed with another, or who has begun, is more dangerous than one who has merely thought.

Desert. He has done everything he could to bring the offence about, and the fact that it did not follow is often luck.

The three, in a table

The boundaries between them

Abetment by conspiracy is not the offence of conspiracy. Under the abetment provision, engaging in a conspiracy is abetment only where an act or illegal omission takes place in pursuance of it. Section 61 needs no such act where the agreement is to commit an offence.

Conspiracy is not attempt. An agreement is complete without any act towards the offence. Where the conspirators then act, they may commit both.

Attempt is not abetment. Abetment is participation in an offence to be committed by somebody else; attempt is the accused's own movement towards it.

Worked example

Prakash and Qadir agree to set fire to a shop. Prakash urges Qadir on. Qadir buys petrol, drives to the shop, pours the petrol and is arrested.

The conspiracy. Complete when they agreed, before anything else happened. Both are liable.

The abetment. Prakash instigated. He is liable for abetment, and because the offence was not committed the punishment is the one the statute prescribes for that case.

The attempt. Qadir's pouring is an act towards the commission, reasonably proximate on Mohd. Yakub's test. He is liable for attempt.

Is Prakash liable for the attempt? Not for his own attempt, since he did no act towards the offence. He is liable for abetting Qadir, and if the acts were done in furtherance of their common intention the group liability provisions of Module II's topic 5 may make him liable as though he had done them.

And if Qadir had been arrested buying the petrol? The conspiracy and the abetment stand; the attempt does not, because on Malkiat Singh's test the acts done would have been completely harmless if he had stopped.

What it does NOT mean

Inchoate does not mean minor. A conspiracy to commit a serious offence is punished as an abetment of it.

It does not mean the target offence is irrelevant. Each inchoate offence takes its ingredients and its punishment from the offence aimed at.

And it does not mean the three are alternatives. The same facts often make out all three, and a prosecution may charge them together.

Quick revision

• Inchoate means begun but not completed. The three are abetment (sections 45 to 60), criminal conspiracy (section 61) and attempt (section 62 and the express provisions).
• Common features: they punish before the harm, require the mens rea of the target offence, are generally punished less, and frequently overlap.
• The justification, from Koppula Venkat Rao: the attempt creates alarm, which by itself is an injury, and the moral guilt is the same; the punishment is half because the injury is less.
• Abetment by conspiracy needs an act in pursuance; the offence of conspiracy does not, where the agreement is to commit an offence.
• Conspiracy needs two; attempt can be committed by one.

Test yourself

1. What does inchoate mean, and which three offences are inchoate in Indian law? Begun but not completed. Abetment, criminal conspiracy and attempt.

2. Give the Supreme Court's justification for punishing an attempt, which serves for all three. That every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded; since the injury is less, only half the punishment is awarded.

3. Distinguish abetment by conspiracy from the offence of criminal conspiracy. Abetment by conspiracy requires that an act or illegal omission take place in pursuance of the conspiracy. The offence of criminal conspiracy is complete on the agreement, where the agreement is to commit an offence.

4. Can one person commit all three? He can commit an attempt alone. Abetment and conspiracy each require at least two, though one of the two may be unidentified or may never be prosecuted.