Actus Non Facit Reum Nisi Mens Sit Rea

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.