LLM Group 5 Criminal Law and Criminal Administration Criminal Jurisprudence 2018 Question Paper with Solutions

For full marks, cover: the paper sets two notes and does not offer a choice, so both must be written and each is worth about twelve marks. On the first, give the maxim in full, say what it does and does not cover, and be precise about the one distinction that carries the marks, which is between a mistake of law and a mistake of fact. On the second, name all four stages, and spend most of the space on the boundary between preparation and attempt, because that is the only stage where liability is actually contested.

(a) Ignorance of Law is No Excuse

The maxim is ignorantia juris non excusat, or in its fuller form ignorantia facti excusat, ignorantia juris non excusat: ignorance of fact excuses, ignorance of law does not. A person who breaks the law is not heard to say that he did not know the law forbade it.

State of Maharashtra v. Mayer Hans George, AIR 1965 SC 722, is the leading Indian illustration. A German national carrying about thirty-four kilograms of gold 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. He said he had never heard of the notification. The Supreme Court held by majority that the offence was one of strict liability and that his ignorance of the notification was no answer, publication in the Gazette being sufficient. The case bears on the note because it shows the maxim doing its hardest work: it was applied to subordinate legislation made days earlier against a foreigner in transit.

(b) Stages in the commission of a crime

A completed crime passes through four stages: intention, preparation, attempt and commission. The criminal law does not attach liability at each of them equally, and the note is really about where it begins.

Intention. A bare intention is not punishable. The reason is partly evidentiary, since a thought leaves no trace, and partly moral, because the law punishes conduct and not character. The maxim is that the thought of man is not triable, for the devil himself knoweth not the thought of man.

Preparation. As a general rule preparation is not punishable either, because the accused may still repent and turn back, which is the doctrine of locus poenitentiae, the opportunity to withdraw. There are exceptions where the preparation is itself so dangerous that the law strikes early: preparing to wage war against the Government, which was section 122 of the Penal Code and is section 149 of the Sanhita; preparation to commit dacoity, section 399 of the Code and section 310(4) of the Sanhita; and possession of counterfeit coin or of forged documents.

State of Maharashtra v. Mohd. Yakub, (1980) 3 SCC 57, extended it. Silver ingots were taken by jeep to a deserted place near a creek and unloaded near the sea, and a mechanised vessel was heard. Nothing had left India. The Court held this an attempt to smuggle: what is required is an act proximate to the offence, though not the penultimate one. Contrast Malkiat Singh v. State of Punjab, AIR 1970 SC 713, where a truck of paddy stopped thirty-two miles from the Delhi border in breach of an export restriction was held to be at the stage of preparation only, since the driver could still have turned back.

Commission. When the actus reus is complete and accompanied by the required mens rea, the offence itself is made out and the earlier stages are absorbed into it.

The mistake that does excuse: two worked cases

Because the whole of the first note turns on the line between law and fact, the two Indian cases on the other side of that line have to be given, and they are the two the examiners expect.

State of Orissa v. Ram Bahadur Thapa, AIR 1960 Ori 161, is the same principle in a harder setting. Thapa, a Nepali servant, had come with his employer to Rasgovindpur in Balasore district to buy aerodrome scrap. The site was locally believed to be haunted. At night the party saw lights near the airfield and Thapa, believing he was attacking ghosts, struck out with a khukri, killing one woman and injuring others; the lights were the lamps of women gathering mahua flowers. The Sessions Judge acquitted him under section 79 and the High Court upheld the acquittal, holding that good faith is to be judged with reference to the accused's own circumstances, including the general belief of the community around him, and not by an abstract standard.

Those two cases mark the boundary from the excusing side, and Mayer Hans George marks it from the other. A man who is wrong about the world may be excused if his error was made with due care; a man who is wrong about the law is not excused however careful he was.

For full marks, cover: two notes again, both compulsory, about twelve marks each. On conspiracy, the marks are in three places: that the agreement is itself the offence, the proviso about the overt act, and how a secret agreement is proved. On the International Criminal Court, resist the temptation to list every article; give the reason a permanent court was created, the principle of complementarity, and India's reasoned refusal to join, which is what an Indian examiner is looking for.

(c) The crime of conspiracy

Criminal conspiracy is the agreement of two or more persons to do, or cause to be done, an illegal act, or an act which is not illegal by illegal means. The offence lies in the agreement. Nothing need be done to carry it out.

The characteristic problem is proof. An agreement is rarely documented and almost never witnessed. Kehar Singh v. State (Delhi Administration), (1988) 3 SCC 609, arising from the assassination of Prime Minister Indira Gandhi, is the leading authority. The Supreme Court held that a conspiracy is hatched in secrecy and may be proved by circumstantial evidence and by the conduct of the parties, but that the circumstances must be consistent only with the inference of an agreement.

Applying that, the Court upheld the conviction of one accused and acquitted Kehar Singh, holding that meetings and association, however suspicious, did not by themselves prove that he had agreed to the killing. The case bears on the note because it marks the line between association and agreement, which is the line the offence turns on.

State of Tamil Nadu v. Nalini, (1999) 5 SCC 253, arising from the assassination of Rajiv Gandhi, added the working propositions: a conspirator need not know every detail or every other conspirator, so long as he shares the design; the agreement may be inferred from acts done in pursuance; and a person who joins later is liable only for what is done after he joins.

Its jurisdiction under Article 5 covers genocide, crimes against humanity, war crimes and the crime of aggression, the last defined by the Kampala amendments of 2010 and activated in 2018. It prosecutes individuals, not States, and no official position, including that of head of State, confers immunity.

Its governing principle is complementarity. Under Article 17 a case is inadmissible where a State with jurisdiction is genuinely investigating or prosecuting it. The Court is a court of last resort and does not sit in appeal over national courts; it acts where a State is unwilling or unable to act. Proceedings begin in one of three ways under Article 13: referral by a State Party, referral by the Security Council under Chapter VII of the Charter, or an investigation opened by the Prosecutor on his own motion with the authorisation of a Pre-Trial Chamber.

Its organs, listed in Article 34, are four: the Presidency; the Judicial Divisions, comprising the Pre-Trial, Trial and Appeals Divisions; the Office of the Prosecutor, which is independent and receives no instructions from any State; and the Registry, which handles the non-judicial administration and, importantly, victim participation and witness protection. There are eighteen judges, elected by the Assembly of States Parties for a single non-renewable term of nine years, and the composition must reflect the principal legal systems of the world and an equitable geographical distribution.

Two features distinguish it from earlier tribunals and are worth naming. Victims are not merely witnesses: Article 68(3) allows them to present their views at stages affecting their interests, and Article 75 empowers the Court to order reparations, which it did in Prosecutor v. Ahmad Al Faqi Al Mahdi by assessing the damage to Timbuktu's mausoleums. And the Statute's own definition of crimes against humanity in Article 7 codified, for the first time in a treaty of general application, offences including enforced disappearance, apartheid and a range of sexual crimes.

That refusal shaped the Rome Statute. Conspiracy as such is not a crime before the International Criminal Court. Article 25(3) instead lists the modes of individual responsibility: committing a crime jointly with another, ordering, soliciting or inducing, aiding and abetting, and, in Article 25(3)(d), contributing in any other way to the commission of a crime by a group of persons acting with a common purpose, where the contribution is intentional and either furthers the criminal activity or is made in the knowledge of the group's intention. Only for genocide, in Article 25(3)(e), is direct and public incitement itself a crime.

The comparison is worth drawing because it shows the same policy problem answered twice. Both systems must reach the organiser who does nothing with his own hands. Indian law reaches him through an offence of agreement, punished whether or not anything follows. The Rome Statute reaches him through a mode of participation attached to a crime that must actually have been committed or attempted. The Indian device is wider and correspondingly harder to control, which is why Kehar Singh had to insist on agreement rather than association; the international device is narrower and correspondingly harder to prove.

For full marks, cover: Here it is explained the other way round, through the four situations in which Indian law displaces it, because a maxim is best understood by its exceptions and because an examiner reading a second answer on the same maxim will reward the candidate who has something else to say. State the maxim and its origin briefly, then take the four displacements in order, each with a case, and then say what survives. This exact question is printed on 2 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 maxim, and why exceptions are the way to understand it

Actus non facit reum nisi mens sit rea: an act does not make a person guilty unless the mind is also guilty. Coke gave it its familiar form, and the idea reached the common law through the canon law's requirement of moral fault.

State of Maharashtra v. Mayer Hans George, AIR 1965 SC 722, is the Indian case where it was displaced. A German national carrying about thirty-four kilograms of gold in a specially made jacket flew from Zurich towards Manila, and the aircraft landed at Bombay. A Reserve Bank notification, made shortly before, prohibited the transit of gold through India without permission, and its breach was an offence under the Foreign Exchange Regulation Act, 1947. He said he had not known of the notification and had not intended to land in India. The Supreme Court held by majority that the offence was one of strict liability: the purpose of the Act was to conserve foreign exchange and to stop smuggling, and requiring proof of knowledge would defeat it. The case bears on the maxim because it identifies the true test for displacement, which is the object of the statute and not the severity of the penalty.

The second displacement: statutory presumptions of a culpable mental state

Where an offence is hard to prove, Parliament has increasingly enacted that the mental element be presumed once foundational facts are established, leaving the accused to displace it. Sections 35 and 54 of the Narcotic Drugs and Psychotropic Substances Act, 1985 presume a culpable mental state and presume possession from unexplained custody. Section 29 of the Protection of Children from Sexual Offences Act, 2012 presumes commission. Section 304B of the Penal Code, now section 80 of the Sanhita, read with the dowry-death presumption in the evidence legislation, casts an inference from the circumstances of the death.

Basdev v. State of Pepsu, AIR 1956 SC 488, marks how far the imputation goes and where it stops. Basdev, a retired military jamadar, drank heavily at a wedding on 12 March 1954 and, when a boy of fifteen or sixteen refused to give up a seat at the meal, shot him in the abdomen and killed him. The plea was that his drunkenness reduced murder to culpable homicide. The Supreme Court held that section 86 imputes knowledge as though the accused were sober, but that the section says nothing about intention, which must still be gathered from the whole of the circumstances with due regard to the degree of intoxication. On the facts the accused could move and speak coherently and had formed the intent, and the conviction under section 302 stood. The case bears on the maxim because it shows a statutory displacement being confined strictly to what the statute actually displaced.

The same problem arises with vicarious liability. Srinivas Mall Bairoliya v. Emperor, AIR 1947 PC 135, refused to import it into criminal law. 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 it would be a serious departure from principle to hold a man criminally liable for the act of his servant, and applying the presumption of mens rea. Ravula Hariprasada Rao v. State, AIR 1951 SC 204, followed it in setting aside the convictions of a petrol pump proprietor for rationing breaches committed by his employees without his knowledge. The case bears on the maxim because it establishes that where a statute is silent the maxim answers the question, and vicarious criminal liability exists in India only where a statute creates it expressly.

What survives

The four displacements look considerable, and it is worth stating precisely what remains.

The maxim remains the default rule of construction. Nathulal is the position, and Mayer Hans George is the exception that has to be earned. A statute that is silent about the mental element is read as requiring one.

Conclusion. Actus non facit reum nisi mens sit rea is not a rule that Indian law states and then obeys; it is the default from which each departure must be justified. Strict liability displaces it only where the object of the statute would otherwise be defeated, which Mayer Hans George found and Nathulal refused to find. Statutory presumptions displace it only after the prosecution has proved foundational facts, as Noor Aga requires. Section 86 of the Code, now section 24 of the Sanhita, displaces it as to knowledge alone, Basdev holding that intention must still be established. And where the Code is silent, Srinivas Mall Bairoliya and Ravula Hariprasada Rao hold that the maxim supplies what the drafter omitted. Taken together the four displacements show the maxim to be, in the phrase that best describes it, a presumption of the criminal law rather than an inflexible rule, and the strength of a presumption is measured by what it costs to rebut it.

Three distinctions decide marks. It is not legalisation, which creates a lawful regulated activity; decriminalised conduct may still be a civil wrong or a ground for divorce. It is not non-enforcement, where the offence survives on the statute book and continues to support arrest, blackmail and disqualification. And it is not the same as reading down, where a court narrows the application of a provision that remains in force.

It happens by two routes. Parliament may repeal, which is clean and complete. A court may strike a provision down or read it down for unconstitutionality, which is quicker but leaves the text standing.

Adultery: decriminalised by judicial invalidation

Section 497 of the Penal Code punished a man who had sexual intercourse with the wife of another man without that husband's consent or connivance. The wife was expressly not punishable, even as an abettor, and the husband of the adulterous wife was the only person who could complain.

The case bears on the question because it also supplies the textbook demonstration of the difference between decriminalisation and legalisation. Adultery ceased to be a crime and remained a civil wrong: it is still a ground for divorce under the matrimonial statutes, and the Court said expressly that if it drives a spouse to suicide it may found a charge of abetment.

The unnatural offence: read down, then repealed

Section 377 punished voluntary carnal intercourse against the order of nature with any man, woman or animal. It was drafted without reference to consent, which decided its fate.

Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, decided on 6 September 2018 by a Constitution Bench, read it down. The Court held that in so far as the section criminalised consensual sexual conduct between adults in private it violated Article 14, since the classification bore no rational relation to any legitimate object, Article 15, since "sex" includes sexual orientation, Article 19(1)(a), since it silenced identity, and Article 21, since the choice of a partner is part of dignity, autonomy and privacy.

Shayara Bano v. Union of India, (2017) 9 SCC 1, concerned talaq-e-biddat, the pronouncement of divorce three times at once, which severed the marriage instantly and irrevocably. A five-judge Bench divided three to two. The majority held the practice void: Nariman and Lalit JJ. on the ground that it was manifestly arbitrary and therefore violated Article 14, and Kurian Joseph J. on the separate ground that what is bad in theology cannot be good in law and that the practice found no sanction in the Quran. Khehar C.J. and Nazeer J., dissenting, would have treated it as protected personal law and injuncted its use while Parliament legislated.

The important point is what Shayara Bano decided. It held the pronouncement legally ineffective. It did not create an offence, and there was none before.

Parliament then enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019, which declares such a pronouncement void and illegal and makes it a cognizable offence punishable with imprisonment up to three years. So the sequence is: a practice that was never a crime, held civilly void by the Court, and then made a crime by Parliament.

What the Bharatiya Nyaya Sanhita did

The Sanhita, in force from 1 July 2024, settled all three. It contains no offence of adultery, so the effect of Joseph Shine is now legislative as well as judicial. It contains no successor to section 377 in any form, so the part of the section that Navtej had deliberately preserved, covering non-consensual acts and bestiality, has gone with the part the Court struck at. And it leaves triple talaq where Parliament put it, in a separate statute.

Legislative decriminalisation is open to the opposite objection, which is what happened in 2024. A section doing two jobs was repealed because a court had invalidated one of them, and no replacement was enacted for the other.

Conclusion. Decriminalisation is the removal of conduct from the criminal law, and it must be distinguished from legalisation, from non-enforcement and from reading down. Two of the paper's three examples illustrate it. Adultery was decriminalised outright by Joseph Shine in 2018 and the Sanhita has not revived it, the conduct surviving as a ground for divorce, which is the cleanest illustration of the distinction from legalisation. The unnatural offence was decriminalised only in part by Navtej Singh Johar, which read section 377 down for consenting adults and preserved it for non-consensual acts, and the Sanhita then removed the whole section including the preserved part. The third example points the other way: Shayara Bano held triple talaq void, not criminal, and Parliament made it an offence in 2019. Taken together the three show that the direction of movement in Indian criminal law is not one way, and that the real question in each case is whether the criminal sanction is doing work that the civil law cannot do.

The Privy Council upheld his conviction of murder read with section 34 of the Penal Code. The Board held that section 34 deals with the doing of separate acts, similar or diverse, by several persons, and that if all are done in furtherance of a common intention each is liable for the result of them all as if he had done them himself. The man at the door was participating: his presence cut off escape and secured the enterprise.

That settles the first proposition of group liability, which is that the "criminal act" the section attributes is the act of the group and not the separate act of each accused. Everything that follows is the courts working out its limits.

Common intention is now section 3(5) of the Bharatiya Nyaya Sanhita, 2023, and not a section of its own; common object is section 190, with unlawful assembly defined in section 189.

Second distinction: participation against presence

Barendra Kumar Ghose holds that a man who does nothing visible may still participate. Suresh v. State of Uttar Pradesh, (2001) 3 SCC 673, carried the point further, holding that the criminal act contemplated by section 34 need not be a positive act and can consist of an omission, and that a person who facilitates the offence while sharing the intention is within the section.

The distinction is not that the accused must do something, but that what he does must be referable to the shared plan. A man who happens to be standing there is not participating; a man standing there because that is his part in the plan is.

Third distinction: section 34 against section 149

Nanak Chand v. State of Punjab, AIR 1955 SC 274, states it. Section 149 creates a specific offence; section 34 does not. Section 34 lays down no punishment and is always read with a substantive section; section 149 makes membership of an unlawful assembly itself the ground of guilt for an offence committed by any member.

Mizaji v. State of Uttar Pradesh, AIR 1959 SC 572, applied it. A party set out to take forcible possession of a field. One of them carried a pistol and used it when the party was resisted, killing a man. The Supreme Court upheld the convictions of the others under the second limb: where men set out to take possession by force and one carries a firearm, a killing is an offence the members knew to be likely in prosecution of the common object. The case bears on the distinction because no agreement to kill existed or could have been proved, and under section 149 none was required.

The limb is controlled rather than unlimited. What must have been known to be likely is an offence committed in prosecution of the common object, so an act done by one member on a private impulse, unconnected with the object of the assembly, falls outside it.

Fifth distinction: membership against mere presence in a crowd

Baladin v. State of Uttar Pradesh, AIR 1956 SC 181, held that mere presence in an assembly does not make a person a member of an unlawful assembly unless it is shown that he did or omitted something which made him a member, or unless he shared the common object as defined in section 141. In a village where the appellants' family and other residents had gathered, some shared the object and others were passive onlookers.

Sixth distinction: the number, and what happens when it falls

Section 141, now section 189(1), requires five or more persons. If the number is not made out, whether because some accused are acquitted or because the evidence does not identify five, section 149 has no application, and the surviving accused can be convicted only with the aid of section 34 or on their individual acts. Where the charge and the evidence permit, the courts have allowed a conviction under section 302 read with section 34 to be substituted in such a case, and it is here that the Nanak Chand prejudice test does its work.

The devices compared

Conclusion. The principle of group liability is the criminal law's answer to collective crime, and its content is the set of distinctions the courts have drawn. Barendra Kumar Ghose, the Postmaster case, settles that section 34 attributes to each the whole of what the group did, so that the man at the door is liable for the shot. Mahbub Shah settles that a shared moment is not a shared plan. Nanak Chand separates section 34, which attributes, from section 149, which creates an offence, and requires the charge to say which. Mizaji shows the second limb of section 149 reaching what was merely known to be likely. And Baladin as qualified by Masalti fixes the line between membership of an unlawful assembly and standing in a crowd, which is the point at which constructive liability either becomes just or becomes guilt by association.

The right in one paragraph, before the questions

The right of private defence occupies sections 96 to 106 of the Penal Code and, since 1 July 2024, sections 34 to 44 of the Bharatiya Nyaya Sanhita, 2023, mapping one for one. Section 96, now section 34, declares that nothing done in the exercise of the right is an offence. Section 97, now section 35, gives the right against any offence affecting the human body, and against theft, robbery, mischief and criminal trespass in relation to property. Sections 100 and 103, now sections 38 and 41, list the occasions on which the right extends to causing death. Section 99, now section 37, contains the restrictions. That is the material; what follows is how it is used.

The first question: did an occasion for the right arise at all?

The right does not arise from fear, or from a bad relationship, or from an expectation of trouble. It arises from a reasonable apprehension of one of the offences the sections name, and the apprehension is judged on the circumstances as they presented themselves to the accused.

The second question: who was the aggressor?

The right is available against an aggressor and not to one. A person who begins an attack cannot claim the right against the resistance he provokes, and the free fight in which both sides came prepared to fight is outside the sections altogether, because neither party can be said to have been defending.

In disputes over land the enquiry becomes one about possession rather than title. A person in settled possession of immovable property may defend it even against the true owner, who must go to law rather than take the property by force; conversely a trespasser who has not acquired settled possession is the aggressor and has no right against the owner's efforts to remove him. That rule is the practical working of the third restriction in section 99, that there is no right where there is time to have recourse to the public authorities.

The third question: when did the right begin, and when did it end?

Sections 102 and 105, now sections 40 and 43, answer this for body and property. The right commences as soon as a reasonable apprehension arises from an attempt or a threat, even though the offence has not been committed, and it continues as long as the apprehension continues.

Deo Narain v. State of Uttar Pradesh, (1973) 1 SCC 347, states how that necessity is measured. In a land dispute the deceased's party advanced with lathis and one blow landed on the appellant's head; he used a spear and caused a fatal chest injury. The High Court held he should have waited to see how serious the blow was. The Supreme Court set the conviction aside, holding that a person facing a reasonable apprehension of grievous hurt need not wait until he is actually hurt, and that the force used cannot be weighed in golden scales in the stress of an attack. The case bears on this question because it fixes the standard as that of a man under attack rather than that of a court at leisure.

James Martin v. State of Kerala, (2004) 2 SCC 203, shows the answer going the other way on the same enquiry. During a bandh a mob came to the accused's flour mill to force it to close and assaulted those inside; the accused and his father fired, killing two. The Supreme Court accepted that an occasion for the right had arisen but held it had been exceeded, and stated that the right is a defensive right circumscribed by the statute, available only when the circumstances clearly justify it, and never a pretext for a vindictive, aggressive or retributive purpose. The case bears on this question because it separates the first enquiry from the fourth: the right may exist and the response still be unlawful.

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

Where the scheme is criticised

The property provisions attract the sharper criticism. Section 103, now section 41, permits killing to defend property against robbery, house-breaking after sunset and before sunrise, and mischief by fire on a dwelling, which values property very highly against life in a way many systems no longer accept. The counter-argument is that each of the listed offences involves a substantial risk to the persons inside, which is why the fourth clause of the section requires an apprehension of death or grievous hurt for ordinary theft or trespass.

The person provisions attract the opposite criticism, that the closed list in section 100 leaves no room for a threat that is grave but unlisted, and that the third restriction in section 99 assumes public authorities who can in fact be reached in time.

For full marks, cover: the question has two commands and they are marked separately. "Enumerate" means the whole chapter, section by section, and a candidate who discusses three exceptions beautifully without listing the rest has answered half the question. So list first, briefly, in a form the examiner can tick off. Then choose three and go deep. The three taken here are mistake of fact, accident and necessity, chosen because the paper says "any three" and because question 10 on the second paper in this scan is compelled to take infancy, intoxication and insanity. Each of the three gets facts, holding and criticism.

The enumeration

The General Exceptions occupy Chapter IV of the Indian Penal Code, sections 76 to 106, and Chapter III of the Bharatiya Nyaya Sanhita, 2023, sections 14 to 44. Section 6 of the Code required every definition of an offence to be read subject to them, so they are part of the definition of every offence and not a plea in mitigation.

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 that his case falls within an exception and presumes the absence of such circumstances. That burden is discharged on a preponderance of probabilities, and the general burden of proving guilt beyond reasonable doubt never leaves the prosecution.

The first: mistake of fact, sections 76 and 79, now 14 and 17

Two sections, one idea. Section 76 protects a person who is bound by law to do an act, or who by mistake of fact and not by mistake of law in good faith believes himself bound. Section 79 protects a person who is justified by law, or who by mistake of fact and not by mistake of law in good faith believes himself justified.

The difference between them is the difference between duty and permission. A soldier who fires on the order of a superior is within section 76 if he believes himself bound; a citizen who arrests a man he takes for an escaped convict is within section 79 if he believes himself justified.

State of Orissa v. Khora Ghasi, 1978 Cri LJ 1305, is the same principle tested on appeal against an acquittal. The accused was guarding his maize field at night in country surrounded by forest where bears and boars frequently damaged crops. Hearing a sound in the field he shot an arrow towards it, believing a bear had entered, and killed a man. There was no enmity between them and no reason for an intentional killing was suggested. The Orissa High Court upheld the acquittal, holding the case one of mistake of fact made in good faith on the circumstances as they appeared to a cultivator in that locality. The case bears on the exception because it shows good faith being assessed against the accused's actual situation rather than an abstract standard.

Criticism. The requirement of good faith makes the defence narrower than it looks, since due care and attention is an objective standard and the accused who was honest but careless fails. That is defensible where the consequence is death. It is harder to defend in the many regulatory offences where the accused's mistake was about a fact the State alone controlled.

Tunda v. Rex, AIR 1950 All 95, is the leading Indian case. Tunda and Munshi were friends and keen wrestlers. In a bout Munshi was thrown, his head struck the hard edge of a chabutra, his skull was fractured and he died. Tunda was charged under section 304A. The Allahabad High Court acquitted him, holding that when two men agree to wrestle each impliedly consents to suffer the accidental injuries that the sport carries, and that in the absence of any proof of foul play the death was accidental and unintentional. The case bears on the exception because it shows sections 80 and 87 working together: the act was lawful because both had consented to the risk, and the outcome was accidental because there was no want of care.

Criticism. The requirement that the act itself be lawful narrows the defence sharply, so a man doing something unlawful in a wholly unrelated respect loses the protection even though the death was pure misfortune. And the line between an accident and a want of proper care is a jury question dressed as a rule, which makes outcomes hard to predict.

R v. Dudley and Stephens, (1884) 14 QBD 273, is the case that fixes the limit of the defence at the common law, and it is the case an examiner expects. The yacht Mignonette was wrecked and four men, Dudley, Stephens, Brooks and the cabin boy Richard Parker, were adrift in an open boat with almost no food and no water. After some twenty days, with the boy weakest and probably dying, Dudley and Stephens killed him and the three survivors fed on his body; they were rescued four days later. The Queen's Bench Division held that necessity is no defence to murder. Lord Coleridge C.J. reasoned that to admit it would require the court to measure the comparative value of lives and to choose whose life should be taken, and that a temptation, however extreme, is not the same as a legal excuse. The men were convicted and sentenced to death; the sentence was afterwards commuted to six months' imprisonment.

The case bears on the exception because it marks precisely where section 81 stops. The section excuses harm caused with knowledge in order to prevent greater harm; it does not authorise the deliberate killing of an innocent person to save others, because that is done with the intention of causing the harm and not merely with knowledge of its likelihood.

Conclusion. The General Exceptions are Chapter IV of the Penal Code, sections 76 to 106, now Chapter III of the Sanhita, sections 14 to 44, and they operate by subtraction: an act within one of them is not an offence at all. Of the three taken in detail, mistake of fact under sections 76 and 79 excuses the accused whose belief about the world was wrong but honest and careful, as Chirangi and Khora Ghasi show; accident under section 80 excuses the unintended consequence of a lawful act carefully done, as Tunda v. Rex shows, and fails the moment care is wanting; and necessity under section 81 excuses harm knowingly risked to avert a greater harm, but stops, as Dudley and Stephens holds, short of the intentional killing of an innocent person. All three are proved by the accused on a preponderance of probabilities under section 105 of the Evidence Act, now section 108 of the Adhiniyam, and in none of them does the general burden of proving guilt leave the State.

For full marks, cover: both notes are compulsory and each is worth about twelve marks. On the rights of the accused, organise by source, constitutional then statutory then judicial, rather than listing rights at random, and give the Bharatiya Nagarik Suraksha Sanhita numbering because the Code of Criminal Procedure has been repealed. On abetment, the marks are in the three forms the section names and in the fact that the abettor is liable whether or not the offence follows; the paper asks for illustrations, so give them.

(A) Rights of the accused

The rights of an accused person come from three sources: the Constitution, the procedural statute, and the decisions that have read the two together.

Statutory. The Bharatiya Nagarik Suraksha Sanhita, 2023, replaced the Code of Criminal Procedure, 1973 on 1 July 2024, and the rights carry across with new numbers. Section 47 requires an arrested person to be informed of the grounds of arrest and of the right to bail, replacing section 50. Section 38 gives the right to meet an advocate of one's choice during interrogation, replacing section 41D. Section 53 provides for medical examination of the arrested person, replacing section 54. Section 58 forbids detention beyond twenty-four hours without a magistrate's authority, replacing section 57. Section 340 gives the right to be defended and section 341 the right to legal aid at State expense, replacing sections 303 and 304. Section 478 governs bail in bailable offences, replacing section 436.

Judicial. Three decisions carry most of the content.

Maneka Gandhi v. Union of India, (1978) 1 SCC 248, held that a procedure established by law under Article 21 must be right, just and fair, and not arbitrary, fanciful or oppressive. Everything that follows about fair trial rests on it.

D. K. Basu v. State of West Bengal, (1997) 1 SCC 416, laid down the well-known requirements on arrest and detention, including accurate identification of arresting officers, a memo of arrest attested by a witness and countersigned by the arrestee, notification to a relative or friend, entry in a diary, medical examination every forty-eight hours and the right to meet a lawyer during interrogation. Most of those requirements are now statutory.

A right that has been narrowed. Section 187(2) of the Sanhita changed the police-custody rule. Under section 167 of the Code the fifteen days of police custody had to be taken within the first fifteen days of remand, after which only judicial custody was possible. Section 187(2) now permits the fifteen days to be authorised "in the whole, or in parts, at any time during the initial forty days or sixty days" of the sixty or ninety day period. The accused therefore remains exposed to a fresh spell of police custody far later in the investigation, and this is the sharpest current criticism of the new procedural code.

Each form has a limit. Instigation means active suggestion, support, stimulation or provocation; mere words uttered in anger or advice given casually are not instigation. Explanation 1 adds that a person who by wilful misrepresentation or wilful concealment of a material fact which he is bound to disclose voluntarily causes or procures a thing to be done is said to instigate it. Abetment by conspiracy, unlike criminal conspiracy itself, requires an act in pursuance. Abetment by aiding requires an intention to facilitate, and Explanation 2 provides that a person who does anything to facilitate the commission of an act, either before or at the time of it, is said to aid it.

Illustrations, which the paper asks for. A instigates B to murder C; B refuses; A is still 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 burning but not the theft. A tells B that C is a public servant, knowing this to be false, and B thereby is induced to commit an offence against C; A has abetted by wilful misrepresentation.

S. S. Chheena v. Vijay Kumar Mahajan, (2010) 12 SCC 190, is the leading modern authority to the same effect. A student committed suicide leaving a note blaming a hostel warden who had been strict with him. 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 on the part of the accused to instigate or aid, a conviction cannot be sustained. The case bears on the note because it draws the line between causing distress and abetting.

Abetment distinguished. From criminal conspiracy under section 61: conspiracy is complete on agreement where the object is an offence, while abetment by conspiracy needs an act in pursuance. From common intention under section 3(5): the abettor need not participate in the act at all, while section 3(5) requires participation. From the offence itself: the abettor is convicted of abetment, a distinct offence, not of the principal offence.

The protection against double jeopardy, and its limits. Maqbool Hussain v. State of Bombay, AIR 1953 SC 325, is the case that fixes how narrow Article 20(2) is. The appellant arrived at an airport carrying gold in breach of a notification; the customs authorities confiscated it, and he was afterwards prosecuted under the Foreign Exchange Regulation Act. He pleaded that he had already been punished. The Supreme Court rejected the plea, holding that the customs authorities are not a court or judicial tribunal and that confiscation is not a prosecution and punishment within the meaning of Article 20(2). The case bears on the note because it shows the constitutional guarantee doing less work than students assume, and why the real protection is the statutory plea of autrefois acquit and autrefois convict, formerly section 300 of the Code of Criminal Procedure and now section 337 of the Sanhita, which bars a second trial for the same offence and not merely a second punishment.

For full marks, cover: Here it is answered the way a trial court actually decides it, as five successive questions, because an examiner who has read fifty section-by-section answers will reward the one that shows how the right is applied. The five are: did an occasion for the right arise, who was the aggressor, when did the right begin and end, was it exceeded, and who has to prove it. Cite a case on each. This exact question is printed on 2 of the papers in this folder, and the answer is the same on every one of them: a candidate sitting either paper writes this.

Amjad Khan v. State, AIR 1952 SC 165, shows how generously that is assessed. During communal rioting at Katni a mob attacked a row of shops. The appellant was inside his shop with his wife and family. He heard the mob break down the door of the adjoining shop and begin to batter his own, and he fired through his door, killing one man and injuring others. He could not see who was outside. The Supreme Court set aside his conviction for murder, holding that on those facts he had reasonable grounds to apprehend death or grievous hurt to himself and his family, so that the occasion described in section 100 had arisen, and that he was not bound to wait until the door gave way. The case bears on this question because it shows an occasion for a lethal defence being found on sound and inference alone.

For property the corresponding enquiry is narrower, because section 97 names only four offences. There is no right of private defence of property against cheating or criminal breach of trust, however dishonest, and an answer that overlooks the closed list gets the first question wrong.

Jai Dev v. State of Punjab, AIR 1963 SC 612, marks the closing of the window. The Supreme Court held that once the danger has passed and the assailants have been disabled or have fled, the right comes to an end; what is done afterwards is not defence but retaliation, and the plea is lost. This is the question on which most private-defence pleas actually fail, because the medical evidence shows injuries inflicted after the assailant was down.

Section 105, now section 43, is unusually precise for property, defining continuance offence by offence: against theft, until the offender has effected his retreat with the property, or the assistance of the public authorities is obtained, or the property is recovered; against robbery, as long as the offender causes or attempts to cause death, hurt or wrongful restraint, or the fear of instant death, hurt or restraint continues; against criminal trespass or mischief, as long as the offender continues in the commission of the offence.

The fourth question: was the right exceeded?

This is the fourth restriction in section 99: the right in no case extends to inflicting more harm than it is necessary to inflict for the purpose of defence.

Where the right is exceeded the plea is not always worthless. Exception 2 to section 300 of the Penal Code, now Exception 2 to section 101 of the Sanhita, reduces murder to culpable homicide not amounting to murder where the accused, in good faith and without premeditation, exceeded the power given to him by law and caused the death of the person against whom he was exercising the right, without any intention of doing more harm than was necessary.

The fifth question: who has to prove it?

Section 105 of the Evidence Act, 1872, now section 108 of the Bharatiya Sakshya Adhiniyam, 2023, puts the burden of proving the exception on the accused and presumes the absence of the circumstances.

Salim Zia v. State of Uttar Pradesh, (1979) 2 SCC 648, states what that burden actually amounts to. The Supreme Court held that it is not as onerous as the burden on the prosecution; that it is discharged on a preponderance of probabilities; and, most usefully, that the accused need not plead the right expressly or lead any evidence, because the plea may be made out from the material in the prosecution's own case. That last proposition is why a defence counsel will cross-examine the prosecution witnesses on the injuries suffered by the accused rather than putting the accused in the box.

Conclusion. Private defence is best understood not as a list of sections but as five questions. Did a reasonable apprehension of one of the named offences arise, which Amjad Khan answers generously and which for property is limited to theft, robbery, mischief and criminal trespass. Was the accused the aggressor, which in land disputes turns on settled possession. Had the right begun and not yet ended, which Jai Dev answers by holding that it stops when the danger stops. Was more harm inflicted than was necessary, which Deo Narain measures from the position of the man under attack and James Martin enforces against the man who went further than defence required. And who must prove it, which Salim Zia answers by placing a light burden on the accused that can be discharged out of the prosecution's own evidence.

Justifiable acts, where the law approves what was done: acts of a person bound by law, sections 76 and 14; judicial acts, sections 77 and 78, now 15 and 16; acts of a person justified by law, sections 79 and 17; necessity, sections 81 and 19; consent, sections 87 to 92, now 25 to 30; communication in good faith, sections 93 and 31; trifling acts, sections 95 and 33; and the whole of private defence, sections 96 to 106, now 34 to 44.

Excusable acts, where the law does not approve but does not punish because the actor lacked capacity or fault: mistake of fact, within sections 76 and 79, now 14 and 17; accident, sections 80 and 18; infancy, sections 82 and 83, now 20 and 21; unsoundness of mind, sections 84 and 22; intoxication, sections 85 and 86, now 23 and 24; and compulsion by threats, sections 94 and 32.

Section 6 of the Code required every offence to be read subject to the chapter, and section 105 of the Evidence Act, now section 108 of the Bharatiya Sakshya Adhiniyam, 2023, places the burden of proving an exception on the accused, on a preponderance of probabilities.

The four topics this question names all belong to the second class. Each is a claim that the accused could not form the mental element the offence requires, and they differ only in the cause of that incapacity: age, disease and drink.

In practice the sections are residual. The Juvenile Justice (Care and Protection of Children) Act, 2015 governs almost every case. A child is a person under eighteen; by section 15 a Juvenile Justice Board must make a preliminary assessment where a child above sixteen is alleged to have committed a heinous offence; and section 18(3) permits transfer to the Children's Court for trial as an adult. In Barun Chandra Thakur v. Master Bholu, 2022 SCC OnLine SC 870, the Supreme Court held that the assistance of a psychologist under the proviso to section 15(1) is in substance mandatory unless the Board itself includes such an expert, and that an average intelligence quotient does not establish the capacity to understand the consequences of an offence. The case bears on the topic because it shows the same enquiry section 83 requires, maturity to judge consequences, being conducted at a much higher age and with expert assistance the Penal Code never contemplated.

Insanity

Section 84, now section 22, exempts a person who, at the time of the act, "by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law".

Dahyabhai Chhaganbhai Thakker v. State of Gujarat, AIR 1964 SC 1563, supplies the procedure and gives the plea a second life. The appellant killed his wife and pleaded insanity. The Supreme Court held that the accused's burden under section 105 of the Evidence Act is no heavier than that on a party to a civil proceeding, and that even where he fails to establish the exception the material he has led may still raise a reasonable doubt about the intention the offence requires, in which case he must be acquitted on the prosecution's own burden. The case bears on the topic because an answer that stops at "the burden is on the accused" has surrendered the better half of the defence.

M'Naghten's Rules

The Rules are the English source of section 84 and are worth setting out as such.

The case. In January 1843 Daniel M'Naghten shot Edward Drummond, private secretary to the Prime Minister Sir Robert Peel, in the back in Whitehall, having mistaken him for Peel. Drummond died some days later. M'Naghten's counsel led evidence that he suffered delusions of persecution, believing himself hounded by the Tories and by spies. The jury returned a verdict of not guilty by reason of insanity and he was confined for the rest of his life in an asylum.

The Rules ask whether the accused knew "the nature and quality" of the act. Section 84 says only "the nature of the act", but the Indian courts have read that as including quality, so nothing turns on the omission.

The Rules say "did not know he was doing what was wrong", and R v. Windle, [1952] 2 QB 826, read "wrong" as legally wrong, so that a man who knew his act was contrary to law but believed it morally right was convicted. Section 84 says "either wrong or contrary to law", in the disjunctive. An accused who by reason of disease did not know his act was morally wrong is within the Indian section even if he knew it was unlawful. This is the single most examinable difference.

The third proposition of the Rules, on partial delusion, has no counterpart in section 84, which asks simply about incapacity and leaves the delusion cases to be worked out under the general words.

What neither system allows. Neither the Rules nor section 84 recognises irresistible impulse. Both are purely cognitive tests, asking what the accused knew and not what he could control. Bapu alias Gajraj Singh v. State of Rajasthan, (2007) 8 SCC 66, confirms that mere abnormality of mind, partial delusion, compulsive behaviour or an irresistible impulse does not attract section 84.

Basdev v. State of Pepsu, AIR 1956 SC 488, resolved it. Basdev, a retired military jamadar, went to a wedding at a neighbouring village on 12 March 1954 and drank heavily. At the midday meal he told Maghar Singh, a boy of fifteen or sixteen, to move from a seat; when the boy did not, Basdev drew a pistol and shot him in the abdomen, killing him. The plea was that drunkenness reduced murder to culpable homicide. The Supreme Court held that section 86 imputes knowledge as though the accused were sober, but that intention must still be gathered from the whole of the circumstances with due regard to the degree of intoxication, and that here the accused could walk and talk coherently and had formed the intent. The conviction under section 302 stood. The case bears on the topic because it establishes that voluntary drunkenness assists only where it made the required intent impossible, never merely because a sober man would not have acted.

Director of Public Prosecutions v. Beard, [1920] AC 479, is the English source, where Lord Birkenhead held that insanity produced by drink is treated as insanity; that evidence of drunkenness rendering the accused incapable of forming the specific intent is to be weighed with the other facts; and that evidence falling short of that merely shows a mind more readily given to violent passion, which does not displace the presumption that a man intends the natural consequences of his acts.

For full marks, cover: both notes are compulsory, about twelve marks each. The first note pairs two ideas that are often run together and must be separated: strict liability dispenses with fault, vicarious liability transfers liability to a different person, and a statute may do either without doing the other. The second note is set again as part of question 1 on the other paper in this scan; here it is worked through the exceptions where preparation itself is punished and through the corporate and inchoate consequences, rather than through the four tests for attempt.

State of Maharashtra v. Mayer Hans George, AIR 1965 SC 722, is the Indian case for displacement. A German national carrying about thirty-four kilograms of gold flew from Zurich towards Manila; the aircraft touched down at Bombay; a Reserve Bank notification made the transit of gold through India without permission an offence under the Foreign Exchange Regulation Act, 1947, and he said he knew nothing of it. The Supreme Court held by majority that the offence was one of strict liability, since the object of the Act was to conserve foreign exchange and prevent smuggling and would be defeated if knowledge had to be proved. The case bears on the note because it fixes the test as the purpose of the statute rather than the size of the penalty.

Nathulal v. State of Madhya Pradesh, AIR 1966 SC 43, is the case against displacement, and shows that the test really is applied. A foodgrains dealer at Dhar held a large stock of wheat without a licence, having applied for one and having sent his returns regularly to the authorities, who did nothing. Prosecuted under section 7 of the Essential Commodities Act, 1955, he was acquitted, the Supreme Court holding that mens rea may be excluded by necessary implication only where it is absolutely clear that the object of the statute would otherwise be defeated. The case bears on the note because it refuses to treat "economic offence" as an automatic answer.

Corporate liability sits at the intersection. Standard Chartered Bank v. Directorate of Enforcement, (2005) 4 SCC 530, held that a company may be prosecuted for offences carrying a mandatory sentence of imprisonment and fined, rejecting the older view that such offences could not be tried against an artificial person. Iridium India Telecom Ltd. v. Motorola Incorporated, (2011) 1 SCC 74, completed the position by holding that the mens rea of the directing mind and will of the company can be attributed to the company itself. Section 3 of the Bharatiya Nyaya Sanhita continues to define "person" as including a company or association.

Criticism. Strict liability punishes the blameless, and criminal conviction carries stigma whatever the statute's purpose. The traditional defence, that the penalties are trivial and the offences regulatory, has weakened as penalties have grown. A defence of due diligence or reasonable mistake, available in several jurisdictions and urged in India, keeps the evidential advantage while sparing the genuinely careful defendant. Vicarious liability attracts the sharper objection, that it punishes a person for conduct that was not his and that he may have had no means of preventing, which is why the statutory forms almost always carry a due-diligence proviso.

But the Code punishes preparation wherever the preparation is itself so dangerous, or so hard to detect later, that waiting is unacceptable. The examples are worth listing because they show the policy: collecting men or arms with intent to wage war against the Government, section 122 of the Penal Code and section 149 of the Sanhita; making preparation to commit dacoity, section 399 of the Code and section 310(4) of the Sanhita; assembling for the purpose of committing dacoity, section 402 and section 310(5); possession of counterfeit coin, of instruments for counterfeiting, and of forged documents. In each the preparation is criminal because the completed offence would be catastrophic or because the preparation is itself unequivocal.

Attempt is where liability normally begins. Section 511 of the Code, now section 62 of the Sanhita, is the residuary provision, punishing attempts to commit offences punishable with imprisonment for life or other imprisonment. Specific attempts are provided for separately: attempt to murder, section 307 of the Code and section 109 of the Sanhita; attempt to commit culpable homicide, section 308 and section 110.

Commission completes the offence, and the earlier stages merge into it. An attempt is not charged separately once the substantive offence is made out.

Why the stages matter beyond attempt. The scheme explains two other doctrines. Abetment and criminal conspiracy attach at the stage of intention made common, which is why they are called inchoate offences and why conspiracy is complete on agreement where the object is an offence. And the impossibility problem belongs here too: under section 511 an attempt is punishable even where the offence could not have been completed, so a man who puts his hand into an empty pocket intending to steal is guilty of an attempt, because the stages are measured by what he did and intended and not by what was in fact possible.

For full marks, cover: Here it is answered through the six distinctions the courts have actually had to draw, because that is where the litigation is and where an examiner can tell a prepared candidate from a memorising one. Begin with the Postmaster case, which the paper names, since it settles the first and most important of them. Give the Sanhita numbering throughout, and end on the criticism that all constructive liability attracts. This exact question is printed on 4 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 Postmaster case, and what it settled

Barendra Kumar Ghose v. King Emperor, AIR 1925 PC 1, is the case the paper names. On 3 August 1923 a group of men entered the sub-post office at Shankaritola in Bengal. The sub-postmaster was counting money when they demanded it and shots were fired, and he was killed. Barendra Kumar Ghose was caught running away. His case was that he had stood at the door, had fired nothing and had done nothing.

First distinction: common intention against similar intention

Mahbub Shah v. Emperor, AIR 1945 PC 118. On 25 August 1943 Allah Dad and others took a boat down the Indus to cut reeds against the wishes of a landowner. Returning, they were stopped by Ghulam Quasim Shah, and Allah Dad struck him with a lari. Quasim Shah shouted for help; Wali Shah and Mahbub Shah came up armed, and Wali Shah shot Allah Dad dead while Mahbub Shah wounded another man.

The Privy Council set aside Mahbub Shah's murder conviction. There was no evidence of a pre-arranged plan to kill. The two men had, at most, the same intention, formed on the spur of the moment, to rescue their kinsman. The Board's warning is the sentence to quote: care must be taken not to confuse same or similar intention with common intention, the partition dividing them is often very thin, and the distinction is real and substantial and if overlooked will result in a miscarriage of justice.

Pandurang v. State of Hyderabad, AIR 1955 SC 216, fixed the requirement in the phrase most often used since: common intention presupposes prior concert, a prior meeting of minds. It added the qualification that saves most prosecutions, that the concert may be formed on the spot or even in the course of the incident, provided it precedes the act.

The practical consequence in that case was severe. A charge under section 302 read with section 149 is a distinct charge from one under section 302 alone or under section 302 read with section 34, and a person charged with the one cannot be convicted of the other without a specific charge being framed. The conviction there was set aside on that ground. Later decisions permit conversion between the two where no prejudice is caused to the accused, but the test is prejudice and it must be applied rather than assumed.

The substantive differences follow from the structure: section 34 needs two persons, section 149 five; section 34 needs a prior meeting of minds, section 149 needs only membership; section 34 requires participation, section 149 does not.

Fourth distinction: the two limbs of section 149

Section 149, now section 190, makes a member liable for an offence committed in prosecution of the common object or for an offence the members knew to be likely to be committed in prosecution of that object. The second limb has no counterpart anywhere in section 34.

Masalti v. State of Uttar Pradesh, AIR 1965 SC 202, is the qualification, and it is the more important case. A Bench of four judges held that the observations in Baladin must be read in the context of the special facts of that case and cannot be treated as laying down an unqualified proposition of law. What follows is the working rule: mere presence is not enough, but an overt act by each accused is not required either, and the question is whether the accused was shown to be a member of the assembly sharing its common object.

Masalti is also the source of the rule of prudence on evidence in mass-casualty cases, that where a large number of accused are charged the court should look for the consistent testimony of a reasonable number of witnesses against each accused before convicting him. The case bears on the distinction because it converts a doctrinal problem, how membership is established, into an evidentiary standard the trial court can apply.

Criticism

Constructive liability convicts a man of an act he did not do, and the objection is that it is guilt by association.

It is weakest against section 34, where a proved prior agreement is a genuine form of authorship, and strongest against section 149, where a person who joined a crowd for one purpose may be convicted of murder on the footing of what the assembly knew to be likely. Baladin and Masalti are the courts' answer, and they show the difficulty: too strict a rule acquits everyone in a riot because no individual act can be traced, and too loose a rule convicts the onlooker.

The sharpest case is section 396 of the Penal Code, now section 310(3) of the Sanhita, under which every participant in a dacoity is liable to death or imprisonment for life if any one of them commits murder in the course of it. The Sanhita reproduced it unchanged, so the criticism is undisturbed by the new Code.

For full marks, cover: Here it is explained the other way round, through the four situations in which Indian law displaces it, because a maxim is best understood by its exceptions and because an examiner reading a second answer on the same maxim will reward the candidate who has something else to say. State the maxim and its origin briefly, then take the four displacements in order, each with a case, and then say what survives. This exact question is printed on 2 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 maxim, and why exceptions are the way to understand it

Actus non facit reum nisi mens sit rea: an act does not make a person guilty unless the mind is also guilty. Coke gave it its familiar form, and the idea reached the common law through the canon law's requirement of moral fault.

State of Maharashtra v. Mayer Hans George, AIR 1965 SC 722, is the Indian case where it was displaced. A German national carrying about thirty-four kilograms of gold in a specially made jacket flew from Zurich towards Manila, and the aircraft landed at Bombay. A Reserve Bank notification, made shortly before, prohibited the transit of gold through India without permission, and its breach was an offence under the Foreign Exchange Regulation Act, 1947. He said he had not known of the notification and had not intended to land in India. The Supreme Court held by majority that the offence was one of strict liability: the purpose of the Act was to conserve foreign exchange and to stop smuggling, and requiring proof of knowledge would defeat it. The case bears on the maxim because it identifies the true test for displacement, which is the object of the statute and not the severity of the penalty.

The second displacement: statutory presumptions of a culpable mental state

Where an offence is hard to prove, Parliament has increasingly enacted that the mental element be presumed once foundational facts are established, leaving the accused to displace it. Sections 35 and 54 of the Narcotic Drugs and Psychotropic Substances Act, 1985 presume a culpable mental state and presume possession from unexplained custody. Section 29 of the Protection of Children from Sexual Offences Act, 2012 presumes commission. Section 304B of the Penal Code, now section 80 of the Sanhita, read with the dowry-death presumption in the evidence legislation, casts an inference from the circumstances of the death.

Basdev v. State of Pepsu, AIR 1956 SC 488, marks how far the imputation goes and where it stops. Basdev, a retired military jamadar, drank heavily at a wedding on 12 March 1954 and, when a boy of fifteen or sixteen refused to give up a seat at the meal, shot him in the abdomen and killed him. The plea was that his drunkenness reduced murder to culpable homicide. The Supreme Court held that section 86 imputes knowledge as though the accused were sober, but that the section says nothing about intention, which must still be gathered from the whole of the circumstances with due regard to the degree of intoxication. On the facts the accused could move and speak coherently and had formed the intent, and the conviction under section 302 stood. The case bears on the maxim because it shows a statutory displacement being confined strictly to what the statute actually displaced.

The same problem arises with vicarious liability. Srinivas Mall Bairoliya v. Emperor, AIR 1947 PC 135, refused to import it into criminal law. 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 it would be a serious departure from principle to hold a man criminally liable for the act of his servant, and applying the presumption of mens rea. Ravula Hariprasada Rao v. State, AIR 1951 SC 204, followed it in setting aside the convictions of a petrol pump proprietor for rationing breaches committed by his employees without his knowledge. The case bears on the maxim because it establishes that where a statute is silent the maxim answers the question, and vicarious criminal liability exists in India only where a statute creates it expressly.

What survives

The four displacements look considerable, and it is worth stating precisely what remains.

The maxim remains the default rule of construction. Nathulal is the position, and Mayer Hans George is the exception that has to be earned. A statute that is silent about the mental element is read as requiring one.

Conclusion. Actus non facit reum nisi mens sit rea is not a rule that Indian law states and then obeys; it is the default from which each departure must be justified. Strict liability displaces it only where the object of the statute would otherwise be defeated, which Mayer Hans George found and Nathulal refused to find. Statutory presumptions displace it only after the prosecution has proved foundational facts, as Noor Aga requires. Section 86 of the Code, now section 24 of the Sanhita, displaces it as to knowledge alone, Basdev holding that intention must still be established. And where the Code is silent, Srinivas Mall Bairoliya and Ravula Hariprasada Rao hold that the maxim supplies what the drafter omitted. Taken together the four displacements show the maxim to be, in the phrase that best describes it, a presumption of the criminal law rather than an inflexible rule, and the strength of a presumption is measured by what it costs to rebut it.

Section 377, unnatural offences. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, decided by a Constitution Bench on 6 September 2018, read the section down so far as it criminalised consensual sexual conduct between adults in private, holding it contrary to Articles 14, 15, 19(1)(a) and 21. It overruled Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, which had restored the section in 2013 on the reasoning that only a "minuscule fraction" of the population was affected. The Court held that rights do not depend on the number of people who need them. It did not strike the section out: it expressly left section 377 standing for non-consensual acts, for acts with minors and for bestiality. The Bharatiya Nyaya Sanhita, 2023 then re-enacted no equivalent at all, so the residue Navtej had preserved has gone as well, and the Sanhita contains no offence covering the non-consensual penetrative assault of an adult male or bestiality.

Section 303, mandatory death for a life convict. Mithu v. State of Punjab, (1983) 2 SCC 277, struck it down as violating Articles 14 and 21, because it withdrew the judicial discretion to consider mitigating circumstances and made death the only sentence. Section 104 of the Sanhita reproduces the offence but provides for death or imprisonment for life meaning the remainder of the person's natural life, so the mandatory element is gone.

Section 124A, sedition. Not decriminalised, and this is the point to make. In S. G. Vombatkere v. Union of India the Supreme Court in May 2022 directed that section 124A be kept in abeyance pending re-examination, and prosecutions were suspended. That was a suspension of enforcement, not decriminalisation. The Sanhita has now replaced it with section 152, "Act endangering sovereignty, unity and integrity of India", punishing anyone who purposely or knowingly excites or attempts to excite secession, armed rebellion or subversive activities, or encourages feelings of separatist activities, by words, signs, visible representation, electronic communication or the use of financial means. The word "sedition" does not appear anywhere in the Sanhita, but the offence has a successor with a wider actus reus, and the criticism is that a provision suspended by the Court for re-examination was replaced rather than repealed.

(F) The principle of jus necessitatis

Jus necessitatis is the right of necessity: the principle that a person may do what would otherwise be an offence in order to avert a greater harm. It is expressed in the maxims necessitas non habet legem, necessity knows no law, and salus populi suprema lex, the safety of the people is the supreme law.

The Indian provision. Section 81 of the Penal Code, now section 19 of the Bharatiya Nyaya Sanhita, 2023, provides that nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm and in good faith for the purpose of preventing or avoiding other harm to person or property. The Explanation makes it a question of fact in each case whether the harm to be prevented was of such a nature and so imminent as to justify or excuse the risk.

The case fixes precisely where section 81 stops. The section covers harm caused with knowledge in order to avert greater harm; the deliberate killing of an innocent person is done with the intention of causing that harm, and falls outside the section's own words.

United States v. Holmes, 26 F. Cas. 360 (1842), reached a comparable result on the William Brown, where a seaman threw passengers overboard from an overloaded lifeboat; the court held that if lots were to be cast the sailors could not simply select the victims, and convicted of manslaughter.

Criticism. Necessity is the exception the courts distrust most, because it invites the argument that law must yield to circumstances and because its boundaries have been fixed by hard cases rather than by principle. The answer is that a law with no room at all for the lesser evil would criminalise the ship's captain in the Code's own illustration, and that section 81 controls the danger by confining the defence to harm caused with knowledge and by requiring good faith, which section 2(11) of the Sanhita defines as demanding due care and attention.

Conclusion. The two notes describe the criminal law contracting and the criminal law bending. Decriminalisation has removed sections 377 and 497 from Indian law altogether and reduced section 309 to a narrow residue, by a combination of Navtej Singh Johar, Joseph Shine, the Mental Healthcare Act, 2017 and the Sanhita's silence, while sedition was suspended and then re-enacted in wider form as section 152, so the movement is not uniform. Jus necessitatis, in section 81 of the Code and section 19 of the Sanhita, bends the law rather than removing it: it excuses harm knowingly risked in good faith to prevent a greater harm, as Bishambher v. Roomal shows, and it stops, as Dudley and Stephens holds, at the deliberate killing of an innocent person, because that is done with intention and not merely with knowledge.