LLM Group 5 Criminal Law and Criminal Administration Criminal Jurisprudence 2025-26 Question Paper with Solutions

For full marks, cover: the second sentence is the question, and it is not the section 377 question the earlier papers asked. Define decriminalisation precisely, then treat it as evidence of something larger: that the boundary of the criminal law moves, in both directions, and that what moves it can be identified. Give the theoretical basis, the Indian instances in both directions, and the mechanisms by which the boundary shifts. A candidate who writes only about section 377 has answered the first sentence and ignored the second.

What decriminalisation means

Decriminalisation is the withdrawal of conduct from the catalogue of offences, so that what the law once punished ceases to be punishable at all. Behind it lies a judgment that the criminal sanction, the most coercive instrument the State possesses, is the wrong instrument for this conduct: because it harms no identifiable person, because it cannot be enforced without arbitrariness, or because the provision offends a constitutional guarantee.

Three distinctions decide marks.

The criminal law has no fixed content. Section 40 of the Penal Code defined an offence as a thing made punishable by the Code, and section 2(24) of the Bharatiya Nyaya Sanhita, 2023 does the same. That definition is formal: an act is a crime because the State has chosen to treat it as one. It follows that the catalogue is a policy instrument, and that it will change as the policy changes.

Three forces move it.

The harm principle. John Stuart Mill's proposition that power may rightfully be exercised over a member of a civilised community against his will only to prevent harm to others. Applied to the criminal law it excludes offences whose only justification is the enforcement of a moral view. The Wolfenden Committee applied it in 1957, reporting that homosexual behaviour between consenting adults in private should cease to be criminal since there must remain a realm of private morality not the law's business. Lord Devlin answered that a recognised morality is as necessary to a society as a recognised government; H. L. A. Hart replied in Law, Liberty and Morality that the mere fact that conduct offends the majority is not a harm, and that Devlin had confused the disintegration of a society with a change in its moral opinions.

The Indian instances of decriminalisation

Section 377. Naz Foundation v. Government of NCT of Delhi, (2009) 160 DLT 277, read it down; Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, restored it in 2013 on the reasoning that it was facially neutral and that only a "minuscule fraction" of the population was affected; and Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, decided by a Constitution Bench on 6 September 2018, overruled that and read the section down for consenting adults, holding it contrary to Articles 14, 15, 19(1)(a) and 21. The Court rejected the "minuscule fraction" reasoning, holding that rights do not depend on the number who need them, and applied constitutional morality against popular morality. It relied on National Legal Services Authority v. Union of India, (2014) 5 SCC 438, and on K. S. Puttaswamy v. Union of India, (2017) 10 SCC 1, which had expressly disapproved Koushal.

Section 497, adultery. Joseph Shine v. Union of India, (2019) 3 SCC 39, struck it down, holding that the offence treated a wife as her husband's property because it turned entirely on whether the husband had consented, and that it violated Articles 14, 15 and 21.

The repeal without a replacement therefore left a gap: the Sanhita carries no general offence covering non-consensual sexual intercourse where the victim is an adult male, and none covering bestiality. Minors remain protected by the gender-neutral Protection of Children from Sexual Offences Act, 2012. The Parliamentary Standing Committee on Home Affairs had recommended during the passage of the Bill that a provision corresponding to section 377 be retained for those residual cases, and the recommendation was not accepted.

The boundary also moves the other way

This is where the answer earns its second half, because a candidate who describes only decriminalisation has described half the evolution.

Triple talaq was criminalised. In Shayara Bano v. Union of India, (2017) 9 SCC 1, a Constitution Bench held instantaneous triple talaq void by three to two. Parliament then enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019, making its pronouncement a cognizable offence punishable with imprisonment up to three years. The same decade that decriminalised consensual sexual conduct and adultery criminalised the pronouncement of a divorce which the Court had already held to be legally ineffective.

And the catalogue has expanded into areas the Penal Code never touched: organised crime and terrorist acts now appear in the Sanhita itself, at sections 111 and 113, having previously been confined to special statutes.

What the evolution reflects

Four propositions, and they are the answer to the question.

The criminal law is retreating from private morality and advancing on collective harm. The offences that have gone were offences against a moral view of private conduct: consensual sexual acts, adultery, the attempt to end one's own life. The offences that have arrived are directed at organised, collective or identity-based violence: lynching, organised crime, terrorism.

The instrument of retreat has been the court and the instrument of advance has been the legislature. Every decriminalisation above began in a courtroom; every new offence began in Parliament. That is a structural feature and not an accident: a court can only remove, and only for unconstitutionality.

Of legislative criminalisation, the objection that new offences are created in response to particular incidents rather than on principle, and that the triple talaq offence is the clearest example: if the pronouncement is void, the marriage subsists, and imprisoning the husband removes the maintenance the wife is meant to receive. That is the criminal sanction being used where the civil consequence had already done the work, which is the opposite of the reasoning in Joseph Shine.

For full marks, cover: the four stages, and then the boundary between preparation and attempt, which is where all the case law is. This answer is organised round the four competing tests for locating that boundary, because naming the tests and then showing which one India adopted is what separates a prepared answer from a recital. Give the impossible-attempt rule with the Code's own illustrations, and close with the exceptional preparation offences. This exact question is printed on 3 of the papers in this folder, and the answer is the same on every one of them: a candidate sitting either paper writes this.

The four stages

A completed crime passes through intention, preparation, attempt and commission.

The four tests for the boundary

The last act or proximity test. R v. Eagleton, (1855) Dears CC 515, where Parke B. said that acts remotely leading towards the commission of the offence are not to be considered as attempts, but acts immediately connected with it are. In its strictest form the accused must have done everything depending on himself. Its merit is certainty; its defect is that it lets the accused go free until the last possible moment, when intervention is least useful.

The equivocality or res ipsa loquitur test. An act is an attempt only if, viewed by itself, it is unequivocally referable to the commission of the offence. Its defect is that very few acts are unequivocal: a man walking towards a house with a knife may be going to kill, to burgle, or to return a borrowed tool.

The social danger test. The court asks how far the act has advanced towards the harm and what would happen if it were not interrupted. Its defect is that it substitutes an assessment of risk for a rule.

The doctrine of locus poenitentiae. The accused is treated as still preparing for so long as he could have withdrawn without anything further happening. Its defect is that it takes no account of how close the harm has come.

Om Parkash v. State of Punjab, AIR 1961 SC 1782, applied that in the most striking way. The appellant confined his wife and deprived her of food over a long period, in what the High Court found to be a scheme of regular starvation designed to accelerate her death; she escaped in a state of extreme emaciation. He argued that no single act of his could have caused death. The Supreme Court upheld the conviction under section 307, holding that a person attempts murder when, with the intention to commit murder, he does an act towards its commission, irrespective of whether that act is the penultimate act. A continuing course of omission can therefore be an attempt.

State of Maharashtra v. Mohd. Yakub, (1980) 3 SCC 57, extended it to smuggling. Silver ingots were carried by jeep to a lonely place near a creek and unloaded near the sea, and the sound of a mechanised vessel was heard; no silver had left India. The Supreme Court held it an attempt, requiring an act proximate to the offence and not the penultimate one.

Attempts that could not have succeeded

Section 511, now section 62, punishes an attempt even where the offence could not have been completed, and the Code's own illustrations are the exposition: A puts his hand into Z's pocket intending to steal and fails because the pocket is empty; A breaks open a box to steal jewels and finds none. Both are attempts, because the stages are measured by what the accused did and intended, not by what was in fact possible.

The limit is Asgarali Pradhania v. Emperor, AIR 1933 Cal 893, where the substance administered was incapable of causing a miscarriage at all. There was no attempt, because nothing the accused did could ever have amounted to the offence. The distinction is between an attempt frustrated by the facts and an act never capable of being the offence.

Two theories compete. The subjectivist view is that the attemptor has shown the same guilty mind and the same willingness to act as the man who succeeded, and that whether the bullet strikes is a matter of luck which should not determine punishment; on that view an attempt should carry the same sentence as the offence. The objectivist view is that the criminal law responds to harm, that no harm has occurred, and that society's alarm and its need for retribution are correspondingly smaller.

Indian law has taken the objectivist side, but not wholly. Section 511 of the Penal Code, now section 62 of the Sanhita, punishes an attempt with imprisonment of any description provided for the offence, for a term extending to one-half of imprisonment for life or one-half of the longest term provided for that offence, or with the fine provided for the offence, or with both.

But the specific attempt provisions depart from that. Section 307 of the Code, now section 109, punishes attempt to murder with imprisonment up to ten years and fine, and, if hurt is caused, with imprisonment for life; and where the attempt is made by a person under sentence of imprisonment for life, and hurt is caused, the sentence may be death. So the more serious the offence attempted, the closer the punishment for the attempt comes to the punishment for the completed crime, which is the subjectivist position operating within an objectivist framework.

Conclusion. The stages of crime are intention, preparation, attempt and commission, and the whole of the doctrine lies in fixing where the third begins. Four tests compete, and India rejected the strictest. After Abhayanand Mishra, an attempt begins when preparation is complete and the accused does any act towards the commission of the offence, whether or not it is the last act in his power; Om Parkash shows that the act may be a continuing omission; Mohd. Yakub requires only proximity; and Koppula Venkat Rao states the modern formula of part-execution of a criminal design. Malkiat Singh marks the other side of the line thirty-two miles from the border. Impossibility is no answer under section 511, now section 62, except where the means were absolutely incapable of producing the result.

The International Military Tribunal at Nuremberg, constituted by the London Agreement of 1945, and its counterpart at Tokyo, tried the leaders of the defeated powers for crimes against peace, war crimes and crimes against humanity. They established the two propositions on which everything since has been built: that international law imposes duties on individuals and not only on States, and that official position is no defence. They were open to the charge of victors' justice, because only the vanquished were tried and the tribunals were created after the acts.

The International Criminal Tribunal for the former Yugoslavia, created by Security Council Resolution 827 of 1993, and the International Criminal Tribunal for Rwanda, created by Resolution 955 of 1994, were established under Chapter VII of the Charter. They were more even-handed but shared the same defects: created after the event, confined to one situation, and dependent on the political will of the Council.

A permanent court answers all three objections. The International Law Commission had a draft statute ready in 1994, and the Rome Conference adopted the Rome Statute on 17 July 1998, by 120 votes to 7 with 21 abstentions. It came into force on 1 July 2002 on the sixtieth ratification. The Court sits at The Hague.

War crimes, Article 8, are grave breaches of the Geneva Conventions of 1949 and other serious violations of the laws and customs applicable in international armed conflict, and, importantly, in armed conflict not of an international character. Article 8 also sets a threshold: the Court has jurisdiction in particular where the crimes are committed as part of a plan or policy or as part of a large-scale commission.

The crime of aggression, Article 8 bis, was defined by the Kampala amendments of 2010 as the planning, preparation, initiation or execution by a person in a position effectively to control or direct the political or military action of a State, of an act of aggression which by its character, gravity and scale constitutes a manifest violation of the Charter. The Court's jurisdiction over it was activated in July 2018 on terms narrower than for the other three.

Temporal and personal limits. Jurisdiction is prospective only, from 1 July 2002 or from a State's later accession. Article 27 removes official immunities, including that of a Head of State. Article 26 excludes persons under eighteen at the time of the conduct.

State Party referral, under Article 14, where a State Party refers a situation. Several situations have come this way, including self-referrals by States on whose territory the crimes occurred.

Security Council referral, under Article 13(b), where the Council, acting under Chapter VII, refers a situation. This route is the only one by which the Court obtains jurisdiction over the nationals or territory of a non-party.

The Prosecutor acting on his own motion, proprio motu. Under Article 15, on his own initiative on the basis of information received, but only with the authorisation of a Pre-Trial Chamber, which is the check the drafters inserted.

Article 16 allows the Council to defer an investigation or prosecution for twelve months, renewably, by a resolution under Chapter VII.

The organs, under Article 34

Article 34 provides that the Court shall be composed of four organs.

There are eighteen judges, elected by the Assembly of States Parties for a single non-renewable term of nine years. They must be persons of high moral character, impartiality and integrity, qualified for appointment to the highest judicial offices in their own States, and the composition must reflect the principal legal systems of the world, an equitable geographical distribution, and a fair representation of women and men. Judges are assigned to the divisions on the basis of their qualifications, in criminal law and procedure or in relevant areas of international law.

The Office of the Prosecutor. It acts independently as a separate organ and its members neither seek nor act on instructions from any external source. It is headed by the Prosecutor, assisted by Deputy Prosecutors, all elected by secret ballot by an absolute majority of the Assembly of States Parties. It is responsible for receiving referrals and substantiated information, for examining them, and for conducting investigations and prosecutions. Article 54 obliges the Prosecutor to investigate incriminating and exonerating circumstances equally, which is a civil-law duty unfamiliar to adversarial prosecutors.

Prosecutor v. Ahmad Al Faqi Al Mahdi, in 2016, was the first conviction for the war crime of intentionally directing attacks against buildings dedicated to religion and historic monuments, being the mausoleums of Timbuktu, and the first case in which the accused pleaded guilty. It established that the destruction of cultural property is prosecutable in its own right.

Prosecutor v. Dominic Ongwen, decided in 2021, is significant for holding that the accused's own abduction as a child by the Lord's Resistance Army did not excuse the crimes he later committed as a commander, though it was relevant to sentence.

Prosecutor v. Omar Hassan Ahmad Al Bashir illustrates both the reach and the weakness of the Court. Sudan is not a party to the Statute. The Security Council referred the situation in Darfur by Resolution 1593 of 31 March 2005, and Pre-Trial Chamber I issued a warrant of arrest against the sitting Head of State on 4 March 2009, with a second warrant in 2010 adding genocide. He was not surrendered, and States Parties which received him did not arrest him.

Criticism

Selectivity. The early docket was almost entirely African, producing accusations of bias and the withdrawals of Burundi in 2017 and the Philippines in 2019.

Cost and delay. Proceedings have been long and the number of final convictions small relative to the resources committed.

Enforcement. This is the structural weakness. The Court has no police force. Every arrest depends on a State executing a warrant, and Al Bashir is the standing demonstration that a warrant against a sitting Head of State may go unexecuted for years. When a State Party declines to arrest, the Court's only recourse is a finding of non-compliance referred to the Assembly of States Parties or the Security Council.

The Council's role, which is India's first objection, is the criticism most often made from outside the Court as well as within it: three permanent members are not parties, yet can expose the nationals of others to the Court's jurisdiction.

For full marks, cover: the question asks for characteristics, not merely elements, so give both and keep them apart. This answer is organised as: the definitional problem, the elements, the characteristics that mark a crime off from a civil wrong, the relationship with morality, and, because the paper is the newest in the folder, the fact that the category is not fixed. Every characteristic should be stated and then tested against an exception, because that is what shows where the boundary actually runs.

The definitional problem

No satisfactory definition of crime has ever been given, and it is right to begin by saying so.

Blackstone defined it as an act committed or omitted in violation of a public law forbidding or commanding it. That is circular: a crime is what the criminal law forbids.

The elements

A human being. The offender must be a person answerable in law. Section 11 of the Code, now section 2(26) of the Sanhita, defines "person" to include any company or association or body of persons, whether incorporated or not. Standard Chartered Bank v. Directorate of Enforcement, (2005) 4 SCC 530, held that a company may be prosecuted even for offences carrying a mandatory sentence of imprisonment and may be fined; Iridium India Telecom Ltd. v. Motorola Incorporated, (2011) 1 SCC 74, held that the mens rea of the directing mind and will may be attributed to the company.

An injury, or the prohibited harm. Section 44 of the Code, now section 2(14), defines injury as any harm whatever illegally caused to any person in body, mind, reputation or property. The harm need not be to an individual: it may be to the State, as in the offences against the State, or diffused across society, as in the offences relating to the currency or to public health.

The two must coincide. Thabo Meli v. R, [1954] 1 WLR 228, softened this for a sequence forming one transaction: the accused beat a man intending to kill him, believed him dead, and rolled the body over a cliff, and the victim died of exposure; the Privy Council refused to divide the transaction.

The characteristics, each tested against its exception

First: a crime is a wrong against the State, not merely against the victim.

This is historical as well as analytical. The earliest response to a wrong was private vengeance; then regulated retaliation under the lex talionis, which limited rather than licensed it; then composition, the payment of wergild. The State then appropriated the wrong: once an offence against a subject became a breach of the King's Peace, prosecution ceased to belong to the victim. Salmond's classification records the result: civil justice enforces a right at the suit of the injured party, criminal justice punishes at the suit of the State.

The exception. Compensation has returned. Sections 395 and 396 of the Bharatiya Nagarik Suraksha Sanhita, formerly sections 357 and 357A of the Code of Criminal Procedure, provide for compensation out of a fine and for a State victim compensation scheme which operates even where there is no conviction and even where the offender is not traced. Ankush Shivaji Gaikwad v. State of Maharashtra, (2013) 6 SCC 770, held that a court is under a mandatory duty to apply its mind to compensation in every criminal case and must record reasons if it declines, though the quantum remains discretionary.

Third: the standard of proof is higher.

Guilt must be proved beyond reasonable doubt, against the balance of probabilities in a civil suit. Woolmington v. Director of Public Prosecutions, [1935] AC 462, calls the prosecution's burden the golden thread of the criminal law, subject only to the defence of insanity and to statutory exceptions.

The exception. State of Maharashtra v. Mayer Hans George, AIR 1965 SC 722. A German national carrying about thirty-four kilograms of gold flew from Zurich towards Manila and the aircraft touched down at Bombay, in breach of a Reserve Bank notification of which he knew nothing. The Supreme Court held the offence one of strict liability, because the object of the Foreign Exchange Regulation Act, 1947 would be defeated if knowledge had to be proved.

Fifth: conviction carries stigma.

This is the characteristic that justifies all the others. A criminal conviction is a public condemnation of the offender, and it is because of that condemnation that the process leading to it is surrounded by protections a civil suit does not have: the presumption of innocence, the privilege against self-incrimination in Article 20(3), the bar on double jeopardy in Article 20(2), and the right to counsel.

The exception. For much regulatory crime the stigma is negligible, which is precisely the argument used to justify strict liability there, and the counter-argument is that stigma cannot be switched off selectively.

Sixth: the same conduct may be both.

The Indian Supreme Court decided that argument in Hart's favour in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, holding that section 377 of the Penal Code, in so far as it criminalised consensual sexual conduct between adults in private, violated Articles 14, 15, 19(1)(a) and 21, and that constitutional morality and not popular morality is the test of a fundamental right.

The category is not fixed

The newest and most important characteristic is that the catalogue changes, and that it changes in both directions.

The Bharatiya Nyaya Sanhita, in force from 1 July 2024, removed the offence of adultery and re-enacted nothing corresponding to section 377, so that the residue Navtej had preserved for non-consensual acts and bestiality went as well. It retained the attempt to commit suicide only in the narrow form of section 226. And it simultaneously added offences: section 103(2), punishing murder by a group of five or more acting in concert on the ground of race, caste, community, sex, place of birth, language or personal belief, which answers Tehseen S. Poonawalla v. Union of India, (2018) 9 SCC 501; section 111 on organised crime; and section 113 on terrorist acts, both previously confined to special statutes.

For full marks, cover: the paper's third instruction is to cite relevant case laws wherever required, so authority must appear at every stage and not only in a block at the end. This answer walks sections 96 to 106 in order, which is the clearest way to show the right has been read, and attaches the governing case to each. Give the four restrictions in section 99 separately, the two lists of occasions on which killing is permitted, the effect of exceeding the right, and the burden of proof.

The foundation: sections 96 and 97

Sections 96 to 106 of the Penal Code, and since 1 July 2024 sections 34 to 44 of the Bharatiya Nyaya Sanhita, 2023, map one to one: 96 is 34, 97 is 35, and so on to 106, which is 44.

Section 96, now section 34: nothing is an offence which is done in the exercise of the right of private defence. The act is not a crime that is forgiven; it is not a crime. The right sits in the General Exceptions, and section 6 of the Code required every definition of an offence to be read subject to that chapter.

Darshan Singh v. State of Punjab, (2010) 2 SCC 333, collects the governing principles: self-preservation is a basic human instinct recognised by the criminal law of all civilised countries; a person facing reasonable apprehension of death or grievous hurt is not required to run away; the right is available against an aggressor only; it is a question of fact and no fixed number of injuries decides it; and the plea need not be expressly taken.

Section 98: against whom the right runs

Section 98, now section 36, gives the right against the act of a person who is himself immune from punishment by reason of want of maturity of understanding, unsoundness of mind, intoxication, or misconception. A man attacked by a child of six or by a person of unsound mind has the same right he would have against a responsible attacker, because the right is directed at the harm and not at the guilt of the person causing it.

Section 99: the four restrictions

Section 99, now section 37, is where most marks are lost, because it contains four separate limitations and candidates commonly give two.

The Explanation preserves the citizen's position: he is not deprived of the right against a public servant unless he knows, or has reason to believe, that the person is a public servant, and, where the act is done under a direction, unless he knows or has reason to believe that it was given by lawful authority, or is shown the written authority on demand.

Section 100: when the defence of the body extends to death

Section 100, now section 38, permits the voluntary causing of death only where the offence occasioning the exercise of the right is of one of seven descriptions: an assault reasonably causing the apprehension that death will otherwise be the consequence; an assault reasonably causing the apprehension of grievous hurt; an assault with the intention of committing rape; an assault with the intention of gratifying unnatural lust; an assault with the intention of kidnapping or abducting; an assault with the intention of wrongfully confining a person in circumstances reasonably causing apprehension that he will be unable to have recourse to the public authorities for his release; and an act of throwing or administering acid, or an attempt to do so, reasonably causing apprehension of grievous hurt. The last was inserted by the Criminal Law (Amendment) Act, 2013 on the recommendation of the Justice Verma Committee.

Jai Dev v. State of Punjab, AIR 1963 SC 612, marks the closing of the window: once the danger has passed and the assailants are disabled or in flight, the right is at an end, and what follows is not defence but retaliation. This is the proposition on which most private-defence pleas actually fail at trial, because the medical evidence discloses injuries inflicted after the assailant was down.

Section 103: when the defence of property extends to death

Section 103, now section 41, permits the voluntary causing of death only where the offence is robbery; house-breaking after sunset and before sunrise; mischief by fire or any explosive substance committed on a building, tent or vessel used as a human dwelling or as a place for the custody of property; or theft, mischief or house trespass in circumstances reasonably causing apprehension that death or grievous hurt will be the consequence if the right is not exercised.

The Sanhita changed one description: the Penal Code said "house-breaking by night", and section 41(b) now reads "after sunset and before sunrise", removing an old argument about when night began.

Section 106: the deadly assault with risk to an innocent person

Section 106, now section 44. Where a person is under a deadly assault reasonably causing apprehension of death and cannot effectually exercise the right of private defence without risk of harm to an innocent person, the right extends to running that risk. A man surrounded by a murderous mob among which children are standing may still fire.

How the necessity in section 99 is measured

Deo Narain v. State of Uttar Pradesh, (1973) 1 SCC 347, is the answer to the argument that a defender must wait. In a dispute over land the deceased's party advanced armed with lathis, one of them struck the appellant on the head, and the appellant used a spear, causing a fatal chest injury. The High Court held that he should have waited to see how serious the blow was. The Supreme Court set the conviction aside, holding that the law does not require a person to wait until he is actually injured, that a reasonable apprehension is enough, and that in the moment of a violent attack a defender cannot be expected to weigh with golden scales the precise force required.

The burden. Section 105 of the Evidence Act, 1872, now section 108 of the Bharatiya Sakshya Adhiniyam, 2023, places on the accused the burden of proving the exception. Salim Zia v. State of Uttar Pradesh, (1979) 2 SCC 648, holds that the burden is not as onerous as that on the prosecution, that it is discharged on a preponderance of probabilities, and that the plea may be founded on the material brought out in the prosecution case without the accused leading any evidence or entering the witness box.

Criticism

The right is attacked from both sides, and both criticisms should be given.

It is said to be too narrow: the enumerated lists in sections 100 and 103 are closed, so a threat not on the list can never justify killing however grave it appeared at the time, and the third restriction in section 99 assumes a responsiveness of the public authorities that policing in much of India does not have.

Conclusion. The right of private defence is an enumerated statutory right and not a general licence. Section 96, now section 34, makes what is done under it no offence at all. Section 97 gives it against any offence affecting the human body and against a closed list of four property offences. Section 98 extends it against attackers who are themselves immune. Section 100 permits killing on seven occasions and section 103 on four; sections 101 and 104 permit lesser harm otherwise; and sections 102 and 105 time the right from the first reasonable apprehension to the moment it ends, section 105 defining continuance offence by offence. Section 99 limits it throughout, and its operative restriction is that no more harm may be inflicted than is necessary, measured after Deo Narain from the position of a man under attack rather than with golden scales, and enforced after James Martin at the point where defence becomes retribution. Amjad Khan shows how generously an occasion is found, Jai Dev when the right dies, and Salim Zia how lightly the accused must prove it.

Two misconceptions have to be cleared at once, because both cost marks.

Mens rea is not a single state of mind. There is no general mental element called wickedness which the prosecution proves. What must be proved is the particular state the offence names, and that differs from offence to offence: an intention in murder, a dishonest intention in theft, knowledge in one limb of culpable homicide, rashness or negligence in causing death by a rash act.

Mens rea is not motive. The distinction is developed below and it is where a third of the marks on this question have always been.

Why the Penal Code never uses the phrase

The Code was drafted so as to make the general maxim unnecessary. Macaulay's method was to write the required mental element into the definition of each offence, using words of precise meaning, and then to supply in Chapter IV a set of general exceptions which negative fault. Section 6 directed that every definition of an offence be read subject to that chapter.

The result is that mens rea in Indian law is found by reading the section charged, not by applying an external doctrine. Chapter IV is now Chapter III of the Bharatiya Nyaya Sanhita, 2023, sections 14 to 44.

Negligence. Failure to take the care a reasonable man would take, without adverting to the risk at all. Section 304A of the Code, now section 106 of the Sanhita, punishes causing death by a rash or negligent act, and the two words are not synonyms. Jacob Mathew v. State of Punjab, (2005) 6 SCC 1, holds that for criminal liability the negligence must be gross, showing such disregard for the life and safety of others as to amount to a crime against the State, and that a doctor is judged by the standard of an ordinary competent practitioner exercising ordinary skill and not by the standard of the highest expert.

Dishonesty and fraud. Sections 24 and 25 of the Code, now sections 2(7) and 2(9) of the Sanhita, define "dishonestly" as doing anything with the intention of causing wrongful gain or wrongful loss, and "fraudulently" as doing a thing with intent to defraud. They are the mental element of the property offences: taking an umbrella believing it to be one's own is not theft because the intention is not dishonest, though every other element is present.

Good faith. Section 52 of the Code, now section 2(11), provides that nothing is said to be done in good faith which is done without due care and attention. Several general exceptions require it, so the absence of mens rea is there proved by establishing its presence.

The leading Indian cases on the presumption

Srinivas Mall Bairoliya v. Emperor, AIR 1947 PC 135. A licensed salt dealer was convicted of selling salt above the controlled price, the sales having been made by his servant without his knowledge. The Privy Council quashed the conviction, saying that it would be a serious departure from principle to hold a man criminally responsible for the act of his servant, and that the presumption that mens rea is required is displaced only by clear words. The case is important because it shows the presumption defeating a wartime control statute at the height of its enforcement.

Ravula Hariprasada Rao v. State, AIR 1951 SC 204. The proprietor of petrol pumps was convicted of breaches of the Motor Spirit Rationing Order committed by his employees in supplying petrol without coupons. The Supreme Court set aside the convictions on the counts where he had no knowledge, applying the same presumption in the first years of the Court's existence.

Where the requirement is displaced

Strict liability. State of Maharashtra v. Mayer Hans George, AIR 1965 SC 722. A German national carrying about thirty-four kilograms of gold in a specially made jacket flew from Zurich towards Manila and the aircraft touched down at Bombay. A Reserve Bank notification, published shortly before, made the transit of gold through India without permission an offence under the Foreign Exchange Regulation Act, 1947, and he knew nothing of it. The Supreme Court held by majority that the offence was one of strict liability, because the object of the Act was to conserve foreign exchange and prevent smuggling and would be defeated if knowledge had to be proved. Read with Nathulal, the test is the purpose of the statute, not the size of the penalty.

Motive is not mens rea

Intention is the mental element the definition requires. Motive is the reason that moved the accused to form it.

A man who kills his terminally ill mother to end her suffering has an admirable motive and a plainly guilty intention, and is guilty of murder. A man who takes another's book believing it to be his own has a neutral motive and no dishonest intention, and is not a thief.

Motive is therefore irrelevant to guilt. It is highly relevant to proof where the case rests on circumstantial evidence, because the chain of circumstances must exclude every hypothesis but guilt, and an unexplained absence of any reason to kill is itself a competing hypothesis. And it is always relevant to sentence, since the reason for the act is precisely what a judge weighs.

How the mental element is proved

A state of mind cannot be observed, so it is inferred.

The presumption that a person intends the natural and probable consequences of his acts is the starting point. It is a rule of evidence and not of law, and it is rebuttable. A man who fires a rifle at another's chest from three feet requires nothing further to establish the intention to cause death.

Conclusion. Mens rea is the mental element the particular offence demands, and Indian law implements the maxim not by a general section but by writing intention, knowledge, rashness, negligence, dishonesty or good faith into each definition and by supplying the general exceptions that negative fault. The requirement is presumed even where a statute is silent, as Srinivas Mall Bairoliya, Ravula Hariprasada Rao and Nathulal establish, and is displaced only where the object of the statute would otherwise fail, as Mayer Hans George found, or by an express presumption confined as Noor Aga confines it, or by a statutory imputation limited as Basdev limits section 86. Motive is no part of it, and the mental element is proved by inference from conduct, with Dahyabhai Thakker holding that a failed exception may still leave the prosecution short of proving it.

It is a rule of policy, not a presumption of knowledge. The law does not pretend that everyone knows it, which would be plainly false in a system with thousands of statutes and far more items of delegated legislation. Three reasons support it. If ignorance excused, the prosecution would have to prove knowledge of the law in every case, which is impossible. The defence would reward the incurious, since the more carefully a person enquired the more likely he would be to discover the prohibition. And a belief about the content of the law is unverifiable, so the plea would be available to every accused and refutable against none.

Where the Code states it. Sections 76 and 79 of the Penal Code, now sections 14 and 17 of the Bharatiya Nyaya Sanhita, 2023, excuse a person who is bound or justified by law, or who "by mistake of fact and not by reason of a mistake of law in good faith believes himself" bound or justified. The maxim appears as an exclusion inside the exception rather than as a section of its own.

The case on the other side of the line. Chirangi v. State, AIR 1952 Nag 282. Chirangi Lohar, a widower living in Bastar, took an axe and went with his young son Ghudsai to a hill to gather leaves, and killed the boy with the axe, saying he had struck at a tiger. Medical evidence showed that a fall, together with his existing ailments and failing eyesight, could have produced a state in which he genuinely took his son for a tiger. The Nagpur High Court held him protected by section 79: the mistake was of fact, it was made in good faith, and on the facts as he supposed them the killing of a tiger would have been lawful.

State of Orissa v. Ram Bahadur Thapa, AIR 1960 Ori 161, adds how good faith is measured. Thapa, a Nepali servant at a site near Balasore locally believed to be haunted, saw lights at night and struck out with a khukri believing he was attacking ghosts, killing a woman gathering mahua flowers. The High Court upheld his acquittal, holding that good faith is judged with reference to the accused's own circumstances, including the beliefs current in the community around him, and not against an abstract standard.

(b) Strict and vicarious liability

They are two different ideas, and the first sentence should say so. Strict liability dispenses with mens rea as to one or more elements of an offence, but the person punished is still the person who did the act. Vicarious liability makes one person answerable for the act of another, and the mental element, if the offence requires one, may still have to be proved against somebody. A statute may create either without the other.

The presumption against strict liability. Sherras v. De Rutzen, [1895] 1 QB 918, holds that mens rea is an essential ingredient of every offence unless displaced by the words of the statute or by the subject matter with which it deals, and identifies the classes where displacement is usual: acts not criminal in any real sense but prohibited in the public interest, public nuisances, and proceedings criminal in form but really a summary means of enforcing a civil right.

The two together establish that the test is the purpose of the statute, and not the label "economic offence" or the size of the penalty.

Vicarious liability barely exists in criminal law. Srinivas Mall Bairoliya v. Emperor, AIR 1947 PC 135: a licensed salt dealer was convicted of selling salt above the controlled price, the sales having been made by his servant without his knowledge, and the Privy Council quashed the conviction, saying that it would be a serious departure from principle to hold a man criminally responsible for the act of his servant. Ravula Hariprasada Rao v. State, AIR 1951 SC 204, followed it, setting aside the convictions of a petrol pump proprietor for rationing breaches by his employees.

Vicarious criminal liability therefore arises only where a statute creates it in terms. The standard form makes a director, partner or manager who was in charge of and responsible for the conduct of the business liable for the company's offence, with a proviso allowing him to escape by proving want of knowledge or the exercise of all due diligence.

Criticism. Strict liability convicts the blameless and attaches the stigma of a criminal conviction; the traditional defence, that the penalties are small and the offences regulatory, has weakened as penalties have grown into years of imprisonment, and the case for a statutory defence of due diligence is now strong. Vicarious liability attracts the sharper objection, that it punishes a person for conduct that was not his and which he may have had no means of preventing, which is why the statutory forms almost always carry a due-diligence proviso.

(c) Abetment of an offence

Definition. Abetment is the offence of procuring, encouraging or assisting the commission of a crime. Section 107 of the Penal Code defined it and sections 108 to 120 punished it; it is now section 45 of the Bharatiya Nyaya Sanhita, 2023, with sections 46 to 60 following.

The three forms. A person abets a thing who (i) instigates any person to do that thing; (ii) engages with one or more other persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing; or (iii) intentionally aids, by any act or illegal omission, the doing of that thing.

Illustrations. A instigates B to murder C; B refuses; A is nonetheless guilty of abetting murder. A instigates B to burn D's house; B sets fire to it and also commits theft there; A is liable for abetting the arson but not the theft. A, a public officer, holds a warrant to apprehend Z; B, knowing that and knowing that C is not Z, wilfully represents to A that C is Z and thereby causes A to apprehend C; B has abetted by wilful misrepresentation.

The cases. Kishori Lal v. State of Madhya Pradesh, (2007) 10 SCC 797, holds that instigation necessarily connotes some active suggestion or support to the commission of the offence, and that for a conviction of abetment of suicide there must be a clear mens rea to instigate or aid; the mere fact that the deceased took his own life after a quarrel is not enough.

S. S. Chheena v. Vijay Kumar Mahajan, (2010) 12 SCC 190, is the leading modern authority. A student committed suicide leaving a note blaming a hostel warden who had been strict with him, and the warden was prosecuted for abetment. The Supreme Court quashed the proceedings, holding that abetment involves a mental process of instigating or intentionally aiding, that there must be a direct or indirect act of incitement, and that without a positive act by the accused a conviction cannot be sustained. The case draws the line between causing distress and abetting.

Conclusion. Taking any two of the three: ignorance of law is no excuse because criminal liability cannot be made to depend on an accused's belief about the legal rule, a proposition sections 76 and 79 write in as an exclusion and Mayer Hans George applied at its harshest, while Chirangi and Ram Bahadur Thapa show the mistake of fact that does excuse and the good faith it requires. Strict liability removes the guilty mind and vicarious liability removes the requirement of personal action, and Indian law after Mayer Hans George, Nathulal and Srinivas Mall Bairoliya treats both as exceptional and permits them only where the purpose of the statute genuinely requires it, the absolute liability of M. C. Mehta belonging to tort and resting on a rationale the criminal law does not share. Abetment reaches the person who instigates, conspires with an act, or intentionally aids, and is complete whether or not the offence follows, but after Kishori Lal and S. S. Chheena what must be proved is a positive act of incitement or aid and not merely a link with the outcome.