CHAPTER-II

THE CONCEPT OF CRIMINAL LAW IN INDIA

Introduction:

The society is group of people living with each other. The basic need of
human being is peace and security though human beings nature is competitive and
self-assertion, due to this nature, the conflicts in the society is the common problem.
Peace and security needed for the development. With the development of society
certain moral values are going to recognize in the society, Certain moral sentiments
develop in the history of human society, how the developed is not our present concern
certain of these moral sentiments become of such interest to the whole group that
conduct out ranging then made a crime. There is a relation between crime and
immorality. In early societies these crimes arrows out of the feeling and conduct that
offended, which direct threatened to the general security. Crime is a changing
phenomenon dependent upon the social development of a people that is upon the
fundamental interests and values dominating their common beliefs. Due to the
different common belief the conflict arise among the individuals, to resolve a conflict
the set patent rule is require therefore the laws are develops in every society. With the
development of the society, the laws are knows as criminal laws, civil laws. The act
which are prohibited by that different laws are known by the different name that is
civil wrong or crime.

Initially the concept is not as a wrong but it is recognizes as a sin, and mostly
it generally regulated by the religious institution. Because the religious institutions are
more powerful, then the sovereignty concentrates towards the kings and the source of
law has undergone change. Now the king or crown is law-making authority and for
the settlements of the conflicts, he set the pattern, which divides the wrongs in civil
wrongs and criminal wrong. In other words, on the basis of the gravity of the
wrongful act it is going to meager, and more grievous acts are considered against the
state and going to be regulated by different law of rule of patter. This rule of set
patterns are known as criminal law, thought the criminal act is directly affect the
individual but it reflect on the entire society therefore the state is taking its cognizance
more seriously and it gives more important to the criminal law.

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 There are various branches of laws, which are regulating the conduct of
human beings. Of all branches of law, the branch that closely touches and concerns
man in his day-to-day affairs is criminal law3. Many attempts have made to define the
crime but they all fail to help us in identifying what kind of act or omission amount to
a crime. The concept of crime is not new but it has been existed from time
immemorial. However, time to time, the concept and nature of crimes have changed.
Moreover, the definition of crimes has changed accordingly. In the era of 20th century
and with the advent of computer, the criminals have changed the mode of committing
the crimes from conventional methods to computer-based methods.

Criminal law is a body of rules and statutes that define conduct prohibited by
the state because it threatens and harms public safety and welfare and that establishes
punishment to be imposing for the commission of such acts. Criminal law differs from
civil law, whose emphasis is more on dispute resolution than punishment. The term
criminal law generally refers to substantive criminal laws. Substantive criminal laws
define crimes and prescribe punishments. In contrast, The Code of Criminal
Procedure describes the process through which the criminal laws are enforced. For
example, the law prohibiting murder is a substantive criminal law. The manner in
which state enforces this substantive law through the gathering of evidence and
prosecution is generally considered a procedural matter.

The crime is an act, which is violation of criminal law and it injurious to the
society. That can make through any means whether that is by the conventional mean,
by the computer, or by any technique that is injurious to the society. The ultimate
object of the culprit is wrongful gain or the wrongful loss to someone or it may be any
kind of the mischief. However, the ultimate aim is to earn or does any unlawful thing.
The modes are developing with the time and therefore the different names are going
to be use as like cybercrime, etc.

The criminal law is the branch of law, which has closely connected with
everyone in the society. The criminal law developed with the changing society. The
concept of the crime is dynamic concept; therefore, it is not possible to define the
crime perfectly. However, the legal system develops the criminal law along with the
time. Maintenance of peace and order is need of every developed society. It is

3
Criminal law: cases and materials, K D Gaur ( 2009) Butterworths Wadhwa Nagpur, Page 33

13
possible only in state where the penal law is strong and effective and enough to deal
with every situation. The society and its needs changes with the time, therefore the
criminal law is required as per the situation. Thus, the prime object of Criminal law is
the protection of public by maintenance of law and order in every situation even in the
information technology age.

The research is pertaining to the conventional criminal law and the cyber laws
and investigation of cyber crime, and its comparative analysis. Investigation is the
process to collect the evidences, the execution and the effect of any criminal law is
much depends on the effective investigation. Cyber crime is the gift of the
informational technology age. The concept of the crime is same but the internet is the
new tool to the criminal for committing the crime. The conventional crimes as like
theft and the cheating, where in the object of the criminals are wrongful gains. The
criminal uses unlawful force or commits fraud while committing these crimes.
However, the object is wrongful gain. The penal laws are develop by every legal
system along with the time and needs of the time. Indian Penal Code is the universal
criminal law of the India, which cover almost all the crimes. Along with the time,
various specific criminal laws are develop by Indian Legal system; however, the
Indian Penal Code is yet most effective criminal law and plays crucial role in curbing
the crime in India.

Today’s age is known as the information technology Age, in this age the
human life is solely depending on the computer and internet. Information Technology
has brought a drastic change in the human life. Human intelligences has advances the
life a easy way of communication, commerce, business and the banking also. The
progress of civilization, as evidenced by the ever-changing information technology,
easily accessible by use of computers was, no doubt put to use for improvement in
standard of living of human being. Information technology made improvements in
every aspect of human life as like education, industry, commerce, governance,
personal life style and social life around the world. However, along with these
developments, it creates various ways to commit the crimes by using this technology,
which known as cyber crime.

The term cyber law generally deals with all aspect of electronic
communication and regulatory aspect of internet. The cyber law is the branch of law,
which regulates the legal aspect while using internet. It means that anything concern

14
with, related to or any legal activity of the internet user in the cyber space covered in
the cyber law. The IT revolution has created a digital world, which is the biggest
challenge to legal system all over the world. Paperless contracts, digital signature,
online transactions have taken the legal world on the verge to think about the new
challenges, this internet completely ignore geographical boundaries. Due to this
digital world, the criminals have also get the new ways to commit the crime, and this
new generation’s crime is known as a cyber crime. Considering the transnational
nature of the cyber crime, International community makes obligatory to State for
enactment of cyber law. The initial enactment specially deals with contract, which
takes place through the internet in digital world.

A person seating in any corner of the world can communicate to other person
without disclosing his identity. Due to this nature of internet, it raised various
challenges not only to the government but also to the trade and individual of the entire
world. Therefore, this new branch of law is emerged, because the conventional
procedure to prevent the crime is useless for offences committed through the
computer or internet. The new way of communication has created certain new crimes,
which called hacking, stalking or cyber terrorism. The Oxford Reference Online
defines 'cyber crime' as crime committed over the Internet. Therefore, rules and
regulation, which deals with the cyber space internet and its regulation, are subject
matter of the cyber laws.

Until 1999, India did not have any legislation to govern to the cyber space.
However, due to the development in communication and e-commerce, internet makes
impact on the cyber world. This compel to the legal system to enact the rules to
govern the cyber space. Due to the hues use of internet, some alert nations of them
world formulate the policy. India is one of the nations among them. Indian legal
system introduced certain enactment and amendment in criminal laws, which is a
Cyber law. However, cyber crime is not different than the conventional crime, but it
need certain new policies to regulate and control the cyber world.

Indian Legal system enacted the Information Technology Act in 2000, and
along with this Act, various amendments takes place in the conventional criminal law,
Substantive and Procedural both. Indian legal system though enacted the IT Act
2000, however it is not a cyber Law, it is enacted for the smooth regulation of the e-

15
commerce. Only one chapter of it deals with offences and penalties, where some
cyber crimes are made punishable, but the Act not defined the term cyber crime.

Therefore, the Indian Penal code is really controlling the cyber crime. In the
research the conventional crime, Criminal Laws and the cyber crimes are discussed.
The researcher tries to prove that, the cyber crime and the conventional crime are not
different form each other, but the way to commit the crime is different. Therefore,
different laws are not required, the conventional laws are sufficient, only the
investigation require to be made by applying the new techniques. The Investigation of
the cyber crime is done by using the scientific tools and therefore the investigation
machineries are having the special knowledge.

In criminal matters, there are different stages of criminal proceeding. Inquiry

and trial are the stages where the courts are concerned. Inquiry, which is much wider
term, So for as the trial is concerns it only regarding crime only, but inquiry is deals
with any act whether it is crime or not, in other words after completing inquiry trial
begins of those act which are crimes. However, the inquiry and trial can takes place
when investigation is completed. The Investigation, inquiry and Trial are three
different stages of criminal proceeding. The first stage is investigation, in which the
Police when get information of any crime, subject to the order of magistrates or
without order of magistrates. However, the Investigation is starting point of criminal
law, its effectiveness needed for implementation of any criminal law.

There cannot be uniform process of investigation. The investigation officers

has to apply different techniques while investigation of any crime. Investigation is
skill and therefore it requires a special knowledge regarding the subject matter, in
which the investigation officers are investigating a crime. Offences whether
conventional or the cyber crime, the same things are require that is nothing but the
techniques. In case of offences where the offenders use special tool, that can
investigate by using the special techniques and expertise in that subjects.

The Code of Criminal Procedure provides the general procedure for

investigation of the crime. The investigation of conventional crime is done by using
the regular methods. The law enforcement agencies are bound by some ground rules
before the evolution of cyber crimes. There were established procedures for
investigation and prosecution of all types of crimes. In case of traditional crimes,

16
large number of physical evidence is generally available at the scene of crime,
Collection of such physical evidence required at lot of commonsense and a little
technical knowledge.

In cyber crime investigation certain special skill and scientific tools are require
without which investigation is not possible. The Indian legal system introduced
certain special provisions while investigating the cyber crime. The Information
Technology Act 2000 has bound to amend certain provision of The Code of Criminal
Procedure and the Indian Evidence Act. Indian legal system enacted certain new
regulations enacted for cyber crime investigation. In the investigation of cyber crime,
generally the evidences are not same as like the conventional crime, those are digital
or electronic evidences. Therefore, the investigation agencies are requiring that
special skill. Considering the need the Indian Evidence Act, 1872 amended by the
legal system, which includes certain new provisions as like section 65A and section
65B in it, which deals with the recognition of electronic or digital evidence. Even the
section 88 A also provides the expert in digital evidences. These amendments started
recognition of digital evidences.

The international perspective is need to be discussed in detail, because the

basic nature of the cyber crime different from that of the conventional crime. The
cyber crime can committed from one corner of the world, which may affect to another
corner of the world. Therefore, the international cooperation is requiring, without
which the cyber crime cannot investigate. All the developed countries enacted cyber
laws. Different countries cyber laws are discussed along with laws of Indian legal
system in the research work.

To curb the cyber crime in real manner, it requires the international

cooperation. The expert investigation machineries is the need of the Indian legal
system. The cyber crime is not different from the conventional crime, but the way of
committing the crime is technical or though the internet and the computers. Therefore,
the social awareness and the international cooperation can curb the cyber crime.

The conventional crime and the cyber crime both are based on the same
footing, the cyber crimes modus operandi is different, and the developed countries
like USA, UK, Australia, Belgium etc. has developed certain new criminal laws along
with the need and developed the techniques, which are necessary to curtail the cyber

17
crime. The cyber crime is worldwide problem therefore mere one country and its
effective law is not sufficient to curb the cyber crime. Cyber crime is not a national
problem but it is a problem found all over the world. The international access to
information and mobility of data is one of the most important functions of world
economic system. One of the peculiar characteristic of the cyber crime is its impact on
the society, which is very wider than the conventional crime. A criminal act
committed in one part of the world may cause impact at some other part of the world.
In view of reach of the cyber crime, entire world has virtually turned in to a small
village. Another feature is that the criminalization increase in the cyber crime is
uniform all around the world. The basic problem in the implementation of the cyber
crime in the global perspective is that the act is crime in one country and not crime in
another country, which create the basic problem. The same problem was faced in the
famous case of ‘love bug” case where in the citizen of the Philippines cannot be
convicted. Now the enactment of the cyber law has resolve the said problem, now any
person who commit crime anywhere and damage the computer of any country, he can
be held liable to the offence.

However, the developing countries like India require the technical assistant of
the developed country in the investigation of the cyber crime. Though Indian legal
system introduced various new agencies and established the cyber cells everywhere
but its lacking the technical knowledge therefore the execution of cyber law is
ineffective. The Indian conventional law is too relevant in every cyber crime.
Whenever any cyber crime is register in India, the provisions of the conventional
criminal laws are attracted and the conventional criminal law is more effective. There
are certain cyber crimes, which are not cover in Information technology Act but the
Indian Penal Code is having the provisions regarding that crime. Therefore, in Indian
legal system the conventional substantive criminal law is sufficient. The new laws are
required for the cyber crime, only the investigation agencies are require the sufficient
training and knowledge to curb the cyber crime. Along with this, the role of Judiciary
and the executive are also important in the prevention of cyber crime.

The most difficult task regarding the regulation of internet use and the cyber
crime is of executives and the investigator. Generally, the executives are facing the
problem to execute the traditional laws and bring the real conviction to the traditional
lawbreaker, now this technological development had increase the difficulties.

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Securing conviction in the real world crime is still not the total success of the law-
enforcers; the intangible crime has left far away from the investigative agencies. The
Indian law enforcement agencies are following the traditional ways of enforcement
and investigation and having experience of tangible procedure therefore, they are very
helpless in this technical age. The first thing which is required by them that is the law
provisions giving them more and more powers enlarge on technical lines to
investigate such crime. Another thing is the technical training, which is lacking now a
day. The most important ways to tackle these things or cyber crimes is to prevent the
things. Means it is good to stop them before the happening, in simple prevention is
better than cure. It should not appear that crime prevention is the complete solution. It
is only one of the strategies for crime prevention. Total crime prevention is infeasible
and unachievable 4 .The prevention fall in the technological, educative approach,
prevention and better policy.

The prevention is possible only by making the better policy and more power
should be conferring on the law enforcing authority. The cyber crime and the misuse
of social media are ramped in the society in the present information technology age.
There are various ways to prevent the cyber misuse and the cyber crime. It can be
done by the industrial cooperation, deterrence as to means of prevention, the nature of
this crime is transnational and therefore the international cooperation is require to
prevent the misuse of the internet and the cyber crime.

In India, there is independences court system, which administers national as

well as state laws. The constitution has by Article 247, clothed parliament with power
to provide for the establishments of additional court for the better administration of
law made by the parliament and of any existing law with respect to the matter
enumerated in the union list. The courts in India are generally control by the state5.
The courts and other tribunals are under the superintendents of High court in the
territorial jurisdiction of the function. The officers of the courts are appointed by state.
The President of India appoints the Judge’s of the High Court and Supreme Court.
The Indian judiciary is quite independent in India. Because all the laws and conflicts
regarding that laws, whether made by center or State going to entertain by the regular
court. This is the independent of the court system in India. Whenever any conflicts
4
L. C. Amarnathan, Cyber crime prevention and control strategies March 2002, CBI bulletin 5 DIG.
5
Cyber Crime law & Policy Perspectives, Dr. Mrs. K. Sita Minikyan (2009), Hind Law House Pune,
Page 198.

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arise about any law, even the offence is technical then also it is going too adjudicated
by the regular Court.

While dealing with the cases of cyber crime, the Indian judiciary had
adjudicated the cases on the equal footing. There are various landmark cases, as like
State of Tamil Nadu v/s. Suhas Kutti, and Avnish Bajaj vs. State (N.C.T.) of Delhi in
which, the issues are regarding the cyber crimes, which are subject to the use of
computer or internet, though the offences are registered in different sections of the
Information Technology Act. However, it is the subjected to Indian Penal Code. The
Judgments shows the effectiveness of the conventional criminal laws in the
informational technology. Only the amendments in the procedural laws are necessary
for the effective prevention of the cyber laws. While dealing with the cyber crime, the
judiciary requires the developed rules of procedure to provide the proper justices. As
like the rules of evidences are required change as per the cyber world.

Recently the Indian legal system established certain tribunals, which deals
with certain special matter as like the recovery of debt, or certain tribunals for Income
tax etc., but lastly these all tribunals are subjects of the judicial review of High Court
and Supreme Court. Therefore, the judiciary plays an important role in all laws.
However, the basic problems arise when the offences are of that nature, which require
the technical knowledge to understand the nature of the act whether it is offence or
not, this nature of cyber crime, due to which the legal system facing various problems.
The laws are sufficient but the policy and the operative system facing the difficulty of
lack of knowledge and in case of judicial perspective the basic question of jurisdiction
arise.

The conventional laws as like Indian Penal Code and the procedural law that
Criminal procedure Code has provide the provisions regarding the territorial and extra
territorial jurisdiction, but the basic nature of the cyber crime require something more
than the provided rules therefore some reformation are require. If we see the decided
cases on the cyber crime, we can find that whenever the provision of Information
Technology Act attracted then along with certain provisions of conventional criminal
law, Indian penal code is also, attracted so it shows that the cyber crime is nothing but
the expansion of the conventional crime.

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 International community concentrated towards the problem of cyber crime,
and brings certain international convention, with intent to enhance international co-
operation in execution of cyber laws. The cyber crime cannot study without the cyber
laws enacted by the other legal systems. Therefore the cyber laws which enacted by
the legal system are analysis to see the position of cyber laws in the countries as like
USA, UK, Australia, Belgium etc. The developed countries are more serious
regarding the cyber security. The developed countries enacted the laws, which are
having the universal jurisdiction. The cyber crimes treated separately by various
countries and they formulated the different policy. The countries like UK and USA
has enacted different laws considering the need. The U K gives the importance to the
data protection from the initial stage. The USA frames the policies considering the
need and the changes the policies as per the need. The small countries like the
Belgium has also developed the cyber policies and enacted the cyber laws.

The international community considering the seriousness and danger of cyber

crime organizes various meets and it result in various conventions dealing with the
cyber problems and enhances the jurisdiction of the cyber crime with the help of the
members of the international community. The Indian legal system had Universal
criminal laws. Though the said act enacted in the 19th century then also it is perfect in
the 21st century. Therefore, various crimes though they are cyber crime or crimes
committed by using the computer are under preview of the Indian penal code. Then
also considering the need and the use of internet in the commercial relations the
Indian legal system enacted the Information Technology Act 2000, which is having
some penal provision dealing with the cyber crime.

The Information Technology Act, 2000 has not covered the various
cybercrime, which are going to be committed in the present time. The Amended
Information Technology Act, 2008 has inserted various new provisions and enhances
the scope of the Information Technology Act, and then also the IT Act is not
sufficient to deals with the cyber crime. However, the Indian Penal code, the
conventional Criminal Law covers criminal act by one or other way. The important
aspect, which is, requires developing the skill and technical knowledge for the
investigation. The investigation process which is followed by the police system in
India is much traditional and old, though the cyber cells are established by every state
then also the working authorities are from the regular process therefore its lacking the

21
technical assistances of the private firms. Therefore, the Indian cyber security and the
implementation are requires the development in the investigation process.

Apart from the legal authorities and the Police system, the society is also
require to take certain precaution to curb the cyber crime. The legal system is unable
to protect to the people from cyber crime if the society or people not take proper care
and caution. In the present days, the internet is the part of life of every one. The
teenagers are connected with the internet frequently, therefore the responsibilities are
more on the parents and that increases the liabilities of the executive authority. Along
with the laws the preventive measures are require to be establish by the legal system
to save to be a victim of the cyber crime.

After the executive, the Judiciary also requires to develop in such a manner to
meet with the needs. The Judiciary, which is following the procedural laws, is also
requiring being deals with the Information Technology. The Indian judiciary is
Independent judiciary. Effective legal machinery can be identified on how properly
rules and regulations are drafted by legislation and more importantly how precisely
principles of jurisdiction is laid down. A court must have jurisdiction, venue and
appropriate service of process in order to hear a case and render an effective
judgment. This concept of universal jurisdiction is necessary to address problem of
cyber crime, but it require to extend the scope to the cyber crimes and criminals
particularly of the serious nature where administration of justices become impossible
for technical requirements of laws of municipal jurisdiction.

The problems of the legal system are subject to the suitable development in
the legislation, executive power and the judicial interpretation. These are developing
things and with the help of the techniques and the experts that can be achieved. The
legal system is however, more depend on the technology rather than the power. Mere
power are not only the solution for the cyber crime, however the technical
development is the solution for the problems of the cyber crime. The cyber space and
its regulations require the strict protection rather than mere criminal laws and the
punishment. In case of cyber world, if the techniques are appropriate then it is easy to
the executive to control and curb the misuse of the internet. Less development and
lack of knowledge, which create the problem to the legal system to control the misuse
of the internet and computer. In some cases of the cyber crime, it can be seen that due
to techniques, the detections are easier and less time consuming; however, it is

22
possible when the legal authorities are perfect in technical aspect rather than legal
aspect.

Apart from the authorities, the members of the society are also having certain
liabilities to deals with the information technology. The main thing in cyber age is,
prevention is better than cure. Therefore, user of internet has to take much precaution,
which can protect them from the misuse of the internet. The awareness in the society
and alert regarding the cyber crime is the need of the hour. Without the support of the
society, the legal authorities cannot curb the cyber crime. In various cyber crimes,
women and children are victims of the cyber crime. Child pornography is the big
problem in the present situation before all legal system. The easy access to internet,
attract the children towards the internet. Criminals take benefit of this thing. The
children become victim due to negligence of the parents. Therefore, the parents are
requiring taking much care while allowing the internet access to the children. The
Protection form cyber crime is possible by taking more care and caution while using
the internet and applies more updated safety guard.

2.1 Origin and development of Criminal law

There was no criminal law in uncivilized society; every man was liable to be
attacked in his person or property at any time by any one. The person attacked either
succumbed or over-powered his opponent.6 ‘A tooth for tooth, an eye for eye, a life
for life’ was the rule of criminal justices. Origin of law can be trace by different
theories, according to K D Gaur there are four theories by which the criminal law may
emerge. Though the theories are discussed accordingly but the real thing is that the
need of the society is hamper to develop the laws whether criminal law or the civil
law, broadly speaking there are four theories which shows the development of
criminal law that’s are civil wrong, social wrong, moral wrong and group conflict
theory.

1. The civil wrong theory regards criminal law as originating in torts or wrong to
individuals. According to this theory all wrongs deals and affect to the
individual and then the society regards it as wrong against the society
therefore, the crime is nothing but wrong against the individual and the group
took over charge of treatment in its own hands, therefore the criminal law

6
The Indian Penal Code. Ratanlal & Dhirajlal, (2003) Wadhwa Publication Nagpur, Page 11.

23
 originated from the civil wrong. No doubt that some crimes like deceit false
imprisonment, defamation are create from the civil wrong but not all the
crime. There are certain crimes as like treason, sedition that, directly affect to
the society.

2. The social wrong theory7 contended that criminal law originated as a national
collective process of unified society. Thus, when any injurious thing or act
happens, which is injurious to the society, society makes regulations in order
to prevent the repetition of such wrongs. But the contention of this theory also
not correct because it covers only some serious crimes as like murder, robbery
and explain how laws are made but fail to explain how criminal law has
developed in the course to time.

3. The moral wrong theory says that the criminal law originated from the morals.
When society follow the custom from the long duration and society accept it
and make obligatory then it turn to be law. When the society accept any
tradition it have a ethical foundation and violation of it create negation
reaction of the society which is going to restrain and punished by criminal law.
This is true in case of conventional crime such as offences against person,
property, reputation and the like. But morality cannot be call base of criminal
law because here is much different is crime and sin. However it does not
explain many social and economic crime as like taxes eviction, licensing.

4. The group confliction theory argues that criminal law developed from this
theory. Due to conflict among group, the powerful group dominate the poor
one and compel to make such rules to protect the interest of such group. Thus,
the criminal law developed at the desire of the powerful group. However, this
theory is also not sole base of the criminal law, because this theory merely
deals with certain property offences. Apart from the property, offences there
are offences against the State, which cannot call the outcome of group
confliction theory.

On the aforesaid discussion, it is clear that criminal law, never created by any
particular theory whether that is civil wrong theory or social wrong theory. However,
according to Sir Henry Maine in his celebrated book Ancient Law, stated that the

7
Law of Crimes ( Indian Penal Code, 1860) S.R.Myneni, (2009) Asia Law House, Hyderabad, Page 2.

24
penal law of ancient community was not the law of crime but was the law of wrong8
The person injured proceed against the wrongdoer by a ordinary civil action for
monetary compensation, if he successes. By this practice we can say that all crimes
(civil wrong) are compoundable, whether intentional or accidental.

Criminal law consistently develops, and is frequently subject to change

dependent upon the ethics and qualities of the time. The fundamental reason for these
laws is dependable to carry equity to the individuals who have deliberately brought
about damage to others and secure the residents of each nation.

2.1.1 Earlier Notion of Crime: Historical Perspective

Law and crime are inseparable; to understand crime one cannot overlook law,
as both crime and laws are understood. To understand the historical perspective of
crime, and criminal law it necessary to see the criminal jurisprudence. Crime or illegal
act is violation of the law of that country or particular time. However, the concept of
law, it is also difficult to understand. As Austin says that law is command of
sovereign is not as universal term .What is the law to a particular country or society
may not be law for another country. Means the term law is not only subject to a
particular time, however, it also dealt with a particular society of country. Thus crime
as according to Stephen, it is an act, which is both forbidden by law and revolting to
the moral sentiments of society.

The old notion of compensation now a day’s get very much important but it is
very old, the origin of this notion of compensation can be seen in old Germanic law,
Code of Hammurabi and Law of Moses. It would be worthwhile to explore the
ancient Indian legal system at this juncture. The Hindu political, legal and economic
thought is included in the Mahabharata, Dharamshastras (of which Manu-Simirti is
the most important), Nitishastra of the science of state-craft (of which the
Shukranitisara, is the most elaborate), and Arthashastras (of which Kautilya’s
Arthashastra is the most popular version that is easily and most recognised and
frequently refereed work to this day). The concept of dhrama governed Hindu life
since the vedic times, and everyone for the king down to the commoner was expected
to follow it. The king had to ensure that all his laws were in conformity with the
dharma and it was said, “Hunger, sleep, fear and sex are common to all animals,
8
PSA Pillai’s Criminal Law: V.Suresh and D.Nagasa (2000) Butterworths Wadhwa, New Delhi, Page
11.

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human and sub-human. It is the additional attribute of dharma that differentiates man
from the beast.” The great economist Kautilya left his imprint on this nation’s thought
with his work, the Arathashastra, a treatise on economic, political and legal
administration, in the 4th century before Christ9

The earliest written law Codes were produced in Babylon. The ruler
Hammurabi (1728-1686 B.C.), considered there great sovereign of his dynasty,
organized the administrative system of the empire. The chief monument of his reign
was the Code of laws, commonly called the ‘Code of Hammurabi’ or the ‘judgments
of the Righteousness. In typical Mesopotamia fashion, Hammurabi claimed that these
laws rested on the authority of the God. Any violation would therefore contravene the
divine order. The discovery of the Code of Hammurabi (1700 B.C.) was a significant
archaeological find. Uncovered by French archaeologists in 1901 at Susa, the
extremely large black stone slab contained 4,000 lines of inscription. At the
uppermost edge of the slab was a depiction of Hammurabi facing the sun God.

Underneath was documented both civil and criminal law, which attempted to
regulate essentially every aspect of the lives of Mesopotamians. The Code of
Hammurabi contemplated the whole population as falling into three classes. The
‘Amelu’ was a patrician who had aristocratic privileges. The ‘Muskinu’ was a free
person who may have been landless. The ‘Ardu’ was a slave. The significance of
defining the social status of the offender and the victim was made clear in the outlined
punishment. Punishments were more severe if the perpetrator was from the lower
class. It was a collection of 282 laws that were wrote down and put on display for
everyone to see. It not only described what was against the law but also what
punishments would give to lawbreakers. For example, the code stated that stealing
property from temples was illegal. Fine is also one of the punishments.

The death penalty was also commonly imposed for such infractions as theft,
for poor architecture that lead to death, for maternal incest, for adultery, for rape, for
false accusation and many other specific acts. Exile and corporeal punishment were
also imposed, but probably the most interesting were those dealing with penal 18
retaliation, such as the cutting off the hand of a son who struck his father, the loss of
an eye that ‘pried into forbidden secrets,’ and the loss of surgeon’s hand that caused

9
http://shodhganga.inflibnet.ac.in/bitstream/10603/28181/9/09_chapter%202.pdf last access on dated
22/8/2015 at 9.30am.

26
the loss of life or limb. However, the most common penalty was a fine, particularly if
the offender was from the upper class. In addition, the concepts of culpability and
suspicion were address, as penalties were less severe if the offence was conducted
unintentionally, and the offender could often only be prosecuted if caught in the act or
in possession of stolen goods. The Code of Hammurabi was so complete that it
outlined a method of appeal that would first be heard by a superior court and
ultimately by the King himself.

However, initially there was no difference between civil law or criminal law,
all laws are based on law of compensation or in other words laws of wrongs. So far as
the historical perspective, the different countries develop their laws and criminal law
on the different footing. However, somewhere the religious impact can be seen on the
historical development. So far as the Indian legal system, Manu-Smirti had a great
impact on the development of the laws and regulating conduct of human in society.
The concept of crime was always changes, even from the very old period. Crime
always changes with the changing social policy and welfare of people. It can be seen
especially about the development in England. In 12 and 13th century, the offences
against state and religions were more serious, and murder and some more serious
crime were less serious than the offences against the state and religion. However, one
thing was common, that all the crimes are subject to the compensation, or recognized
as a wrong, then with the changing policy of the criminal jurisprudence, the notion of
the compensation has undergone change and criminal law develop as a special branch.

The development of the criminal law from the law of compensation has gone
through various steps, that can be develop as the following ways

2.1.2 Law of Wrongs: No distinction between tort and crime

In initial stage, there were no different branches of laws, as like civil law,
criminal law. All wrongs were going to be treating on the same parameter. In initial
position, the concept of right is not properly rooted in the society. The sovereign
authority mere works as a protector, therefore only special kinds of remedy were
available. Sir Henry Maine in his book ‘Ancient Law’ has stated that the penal law of
ancient communities was not the law of crimes; but was the law of wrongs. The
person, injured proceeded against the wrongdoer by an ordinary civil action and
recovered compensation in the shape of money, if he succeeded. In support of this

27
view, we may cite the ancient practice of compounding murder by payment of ‘blood
money’ to the heirs of the person killed

Wer was a price set upon a man according to his rank in life. If such a person
was killed, the wer was to be paid to his relations. Bot was the compensation paid to a
person who was merely injured. Wite was the fine paid to the king or other lords in
respect of an offence. Thus, the early societies recognized no distinction between the
law of crime and torts, but only knew of law of wrongs. Murders and other homicides
are regard as private wrongs. The right to claim compensation was the rule of the day.

A distinction was, however, drawn between casual offenders and hardened

criminals. Also commented by Pollock and Maitland, the English society, prior to
10th century confused crimes with torts, because the bond of family was far stronger
as that of community, the injured party and his kindred would avenge the wrong by
private vengeance and self-redress. It was a period when recourse to legal remedy was
considered nearly as an optional alternative to self-redress. The wrong-doer was
supposed to offer compensation to the person wronged, the quantum of which
depended on the extent of the wrong caused and the status of the sufferers. The
payment of compensation known as “bot”, paid to a person injured by the criminal,
was either at a fixed rate (an gild), or at the marketing price of the stolen goods
washed away the guilt of the wrong-doers and brought him to a position as if he had
done no wrong. The early Anglo-Saxon Laws contained the minutest details of the
compensation ‘bot’ which was payable for different wrongs with a view to help the
person wronged in seeking redress.

However, if the “bot” (compensation) was refused, the law had no provision to
enforce its payment. In that event it was for the victim or his kindred to prosecute a
‘blood-fued,’ against the wrongdoer and the law could help him only by declaring the
wrong-doers as an ‘out-law’ who could be chased and killed by any one like a wild
beast. A human being ‘under a legal obligation to act’ and ‘capable of being
punished’ would, by the first restriction, exclude an out-law who is placed outside the
prosecution and restriction of law. Happily, outlawry as an institution has ceased to
exist.Besides the offences which could be atoned for by ‘bot’ (payment of
compensation to the sufferer), there were certain other wrongs which entail additional
fine known as ‘wite’ was payable to the king, for a crime committed by the accused.

28
 Further the ‘wer’ was a price set upon a person according to his position in
life. If a man was killed, the relatives were paid the value fixed on his life. if a man
was convicted of theft, he had to pay his ‘wer’ to his feudal lord, or to the king; or, if
he was outlawed, his sureties had to pay his ‘wer’. Moreover there were certain
‘botless’ offences for which no amount of compensation could wipe out the guilt and
wrongdoer had to be punished. Such cases were punishable with death, mutilation, or
forfeiture of property by the king. Punishments in the form of detention were
recognized by the legal system. Housebreaking, harboring the out-laws, refusing to
serve the army and breach of peace etc. were some of the early “botless” offences
which entitled compulsory punishment under the law of the state, as a matter of fact,
it is from these “botless” offences that the modern concept of crime has immerged.

After 12th century, the number of “botless” offences increased considerably.

Thus, a distinct line of demarcation could withdrawn between the wrongs which could
be redressable by the payment of compensation (‘bot’) and those which were not so
redressable by money compensation (‘botless’) and for which the wrongdoers were to
be punished by the King. In course of time, the former came to be known as Civil
Wrongs, i.e., ‘torts’, while the later as ‘Crime’. It can therefore be observed that the
law did not play that compelling part in regulating the social relation in early days as
it does today. Therefore, in Anglo-Saxon England the criminal had to mark two
compensatory payments the ‘Wer’ or ‘Bot’ to the victims or his relative and the writ
to the King, or the Feudal Lord.

2.1.3 Modern Times

The middle age gives much contribution in the development of criminal law,
The middle age gives new shape to criminal law, and made the bifurcations of law of
compensation and criminal law. Towards the end of the middle ages, however the
institution of compensation began to lose its force, due to the simultaneous growth of
Royal and Ecclesiastical power, which had a sharp distinction between torts and
crimes. The concept of compensation was closely related to that of punishment and it
was merged to some extent in the Penal Law, but at the same time, a number of
offences like murder, robbery and rape were no longer regarded as torts, which could
be settled by compensation, but were regarded as crimes against society and were
punishable as such. Gradually, as the State monopolized the institutions of

29
punishment, the rights of the injured were separated from the Penal Law and the
obligations to pay damages or compensation became a part of the Civil Procedure.

The demand for compensation for the victims of crimes was revised during the
Penal reforms movement of the 19th Century. It was discussed at fifth International
Prison Congress in the latter half of the century. Despite the strong advocacy of Jermy
Bentham and a number of leading Penologists, the acceptance of the principles of the
state liability to pay compensation for the victims of crime remained as distant as
ever. Among many other suggestions One was that public Tribunals, while passing
sentences in respect of offences preponderances Civil element, breach of trust and
swindling etc. should be empowered to compel solvent offenders to make financial
restitutions to the victims. Another suggestion was that if the offenders were insolvent
they should be work for the State till they earned enough to compensate their
victims.

2.1.4 Development of Criminal Law in India

In the olden period, before the Muslim rulers, the penal law in India was the
Hindu law prevailed in India. The base or rules and the criminal laws were base on
the verge of Smriti. It has provided certain basic kinds of the punishments. Initially
there were certain corporal punishments were recognized during that period. The
various sources of law relied upon by the kings at that time were shrutis, smritis,
puranas, dharmasutras, dharmashastras, etc. The Arthashastra and Manusmriti were
influential treatises in India, texts that were considered authoritative legal guidance.

In course of time, Aryan society developed its political and social organization
and other institutions. They established a mature legal system. Their laws including
the criminal law were fully developed. P.N. Sen in his Hindu Jurisprudence says, “In
the Hindu Law punishment of crimes occupied a more prominent place than
compensation for wrongs or the penalties. Although under certain circumstances
wrong-doer had to compensate the person wronged but it was generally levied in
addition to and in substitution for the penalty”.

It was the duty of the king to punish offenders. Manu says that, it was the
duty of the king to punish those who deserve to be condemned. So penal law of
Hindus was law of crimes and the law of Torts. It recognized various kinds of

30
offences, namely, assault, adultery, defamation, theft, robbery and violence as crimes.
These crimes were recognized by Manu, Yagnavalkya and Nilkanta.

Further various kinds and degrees of punishments were prescribed to be

rendered flexible and kept in the proportion to the enormity of the offence. Measure
of punishment varied according to the gravity of the offence. In meeting out
punishment a number of factors were to be taken into consideration. According to
Yagnavalkya some such factors were: nature of the offence, time and place of the
offence, strength, age, avocation of the offender, wealth etc. End of punishment,
according to Hindu law, was protection of the people and purification of the culprit.
No one was exempt from punishment. Even the king himself was liable if he
committed an offence. However, inflicting the punishment, caste was a very important
factor.

Brahmins was immune from bodily punishment, persons of higher castes were
generally given a lighter punishment. This aspect of Hindu Criminal Law has been
greatly criticized. But one thing has been generally overlooked. It is that the men of
higher castes were given higher punishments for immoral offences. In this way
equality in the matter of punishment was maintained. Many principles which are
corner-stones of Modern Criminal Jurisprudence were well known to Hindu jurists
and were made parts of Hindu Criminal Law. A criminal could never acquire
immunity. Right of private defence, infancy, lunacy and many other conditions, were
recognized as grounds for exemption from criminal liability.

Ancient India represented a distinct tradition of law, and had a historically

independent school of legal theory and practice. The political structure in the Vedic
Period consisted of kingdoms, each tribe forming a separate kingdom. The basic unit
of political organization was the kula (family). A number of kulas formed a grama
(village), Gramani being the head. A group of gramas formed a vis (clan) and a
number of vis formed the jana (tribe). The leader was Rajan (the Vedic King). The
king (raja) was the supreme head of the legislative, executive and judiciary branches.
The members of the council of minister could give advice to the king, but final
decisions were left to the king. The ministers and other officials were directly
appointed by the king. The sabha and the samithi were responsible for the
administration of justice at the village level.

31
 According to Brihaspati Smiriti, there was a hierarchy of courts in Ancient
India beginning with the family Courts and ending with the King. The lowest was the
family arbitrator. The next higher court was that of the judge; the next of the Chief
Justice who was called Praadivivaka, or adhyaksha; and at the top was the King’s
court. Early in this period, which finally culminated into the creation of the Gupta
Empire, relations with ancient Greece and Rome were not infrequent. The
appearances of similar fundamental institutions of international law in various parts of
the world show that they are inherent in international society, irrespective of culture
and tradition. 10

After this period, the Hindu system was diluted and the Muslim period was on
verge. The criminal law very much depends on the Muslim rulers. The ideal of justice
under Islam was one of the highest in the Middle ages. The administration of justice
was regarded by the Muslim kings as a religious duty. Sources of Islamic Law are
divided into Primary and Secondary Sources. Quran is the first and the most important
source of Islamic law. It is believe to be the direct words of God as revealed to
Muhammad through angel Gabriel in Mecca and Medina. Muslim jurists agree that
the Quran in its entirety is not a legal code. Sunna is the traditions or known practices
of Prophet Muhammad, recorded in the Hadith literature. Quran justifies the use of
Sunna as a source of law. Ijma and Qiyas are the secondary sources of Islamic law.
There are 72 Muslim sects in all with the Shia sect being the most popular in India

Under the Moghal Empire, the country had an efficient system of government
with the result that the system of justice took shape. The unit of judicial
administration was Qazi. Every provincial capital had its Qazi and at the head of the
judicial administration was the Supreme Qazi of the empire (Qazi-ul-quzat).
Moreover, every town and every village large enough to be classes as a Qasba had its
own Qazi. During this period, the personal laws of the non-Muslims were applied in
civil matters, but the criminal law was the Islamic in nature. Whenever there was a
conflict between Islamic Law and sacred laws of the Hindus, the former prevailed.11

During the period of the Muslim ruler, the criminal law, though not separated
from the civil law, however it is having much impact of the religion on the criminal

10
http://www.legalindia.com/evolution-of-law-%E2%80%9Ca-short-history-of-indian-legal-theory
%E2%80%9D/ last access on 14/8/14 at 6.4.pm
11
http://www.shareyouressays.com/119646/essay-on-the-history-of-criminal-laws-in-india last access
on dated 20/5/2014 at 9.30 pm.

32
justices system. The religious institutions are having their pre-dominances on the
criminal justices system. Kazi’s were deciding the criminal matter on basis of the
religious aspects. During this period, the uniform rules were absent, but this criminal
justices system is having very much impact on the criminal justices system of India.
Even during the period of the British’s or East India company, the criminal justices
system of was very much depend on the Muslim period. The Sadar Faujdari Adalat
was the criminal court during that period and the Kazi, Mufti were the judges of these
court and dealing with the criminal justices system.

When India came under the domain of East India Company, Britishers wanted
to preserve status quo but the defects of Mohammedan Criminal Law were noticed
and before the Indian Penal Code came into force, the English Criminal Law,
modified by various Acts and was applied in the Presidency-town of Bombay,
Calcutta and Madras while courts in the interior were mainly guided by Muslim
Criminal Law.

The local Governments in the interior framed Regulations to remove the

glaring defects of the Muslim Criminal Law. In the Presidency of Bombay there was a
revision of the administration of Justice in 1827 and the law to be followed in
criminal cases was set forth in a Regulation but the position in the other Presidencies
remained precisely where it was.

The Indian Penal Code drafted by the first Indian Law Commission presided
over by Lord Macaulay and the draft was submitted to the Governor-General of India-
in-Council in 1837 and after revision by several persons Sir Barnes Peacock, Sir J.W.
Colville and other Judges of the Calcutta High Court The draft was finalized in 1850.
It was submitted to the Governor-General-in-Council in 1856 and received the assent
of the Governor-General on October 6, 1860. It was intended to put it into force from
the 1st May, 1861 but enforcement was postponed till the 1st January, 1862, the
interval being utilized by the publication of the Code in vernacular for general
information and mastery of grasp by Indian Judges and officers of the new law
contained in the Code.12

12
https://en.wikipedia.org/wiki/Indian_Penal_Code last access dated 22/5/2014 at 7.00pm.

33
 While enacting the criminal law for India, impact of Bentham, also be seen.
The criminal law can be seen the impact of the pleasure and pain theory. The criminal
Justice system of India is having the great impact of the Bentham. These steps were
found necessary as the Indian Penal Code completely revolutionized the then existing
Criminal Law. Livingstone’s Code and the Code of Napoleon as also English and
Indian law provided the background on which the Indian penal Code has been
prepared. Constitutional changes since August, 1947 have led to revisions and change,
in many sections of the Code. The members of the Law Commission, which prepared
the draft when submitting the draft made the following observations as to nature of
the proposed law, “We cannot admit that a Penal Code is by any means to be
considered as a body of Ethics that the Legislature ought to punish acts merely
because those acts are immoral, or that because an act is not punished at all, it follows
that the Legislature considers that act as innocent. Many things which are not
punishable are morally worse than many things which are punishable. The man who
treats a generous benefactor with gross ingratitude and insolvencies deserves more
severe reprehension than the man who aims a blow in a passion, or breaks a window
in a frolic; yet we have punishments for assault and mischief, and none for
ingratitude. The rich man who refuses a mouthful of rice to save a fellow-creature
from death may be a far worse man than the starving wretch who snatches and
devours the rice; yet we punish the latter for theft and we do not punish the former for
hard-heartedness”.

Thus, the criminal law developed in India. The first codified criminal law of
India is the Indian Penal Code. 1860. Till the enactment of this law, there was no
codified criminal law in India. For the better criminal justices system, the codified and
presses criminal law is require. If the criminal law is not presses then there was just
Khios in the society. After the development of the criminal law, the concept of crime
is new going to deal along with the Indian Penal Code. After the enactment of the
Indian Penal Code, as per the need, the various criminal laws were enacted in Indian
Legal system. The laws, which are subsequently enacted in India though dealing with
different crimes, however the Indian Penal Code is universal and dealing with all
kinds of crime, therefore, entire Indian criminal laws are based on the Indian Penal
Code.

34
2.2 Concept of crime

The term “Crimes” has, nowhere defined in the penal law. Section 40 of
Indian Penal Code, 1860 defines the terms “offence” as a thing made punishable by
this Code. Wikipedia defines the term “crimes” as Crime is the breach of rules or laws
for which some governing authority can ultimately prescribe a conviction. A
normative definition views crime as deviant behavior that violates prevailing norms –
cultural standards prescribing how humans ought to behave normally. This approach
considers the complex realities surrounding the concept of crime. It is very difficult to
give a correct and precise definition of crime, Glanville Williams, admitted the
impossibility of having a workable content based definition of crime, points out that
the definition of crime is one of the sharp intellectual problems of law.

The various jurists like Austin, Blackstone, and Stephen had provided the
definition of crime; considering the need of society the laws enacted by the lawmaker
and the concept of crime is developed along with the time, therefore, the different
definitions were provided by the then jurist. However, while defining the concept of
the jurist themselves admitted the difficulty to define the crime, Russell also admitted
that to define crime is a difficult task, which so far as not been satisfactorily
accomplished by any writer.

Such a difficulty in ultimate analysis arises due to the changing nature of

crime, an outcome of equally dynamic criminal and penal policy of a state. However,
some sociologists, perceiving crime as a social phenomenon feel that criminal law in a
sense, protects certain social interests, and any act which threatens or poses threat to
this interests is define as crime. In general, terms crime is defined as an act punishable
by law as forbidden by statue or injurious to the public welfare. It is very wide
definition, anything, which is injurious to public, is crime, in modern complex society
there are many things, which are injurious or against the public welfare for example
selling contaminated food molestation of young children, etc.

Blackstone defines crime: An act committed or omitted in violation of a public

law either forbidding or commanding it. In the definition the term public law is used,
which is very wide, to understand crime, public law is required to understand.13

13
www.legalservicesindia.com/.../the-elements-and-stages-of-a-crime-1228-1.html last access on
dated13/7/2014 at 9.30pm.

35
 According to Austin, public law is identical with constitutional law. That
being so the crime would then mean an act done in violation of constitutional law.
The definition thus would cover only the political offence leaving aside a vast area of
other criminal behavior.

Blackstone also defines crime as violation of the public rights and duties due
to the whole community considered as a community in its social aggregate capacity.
Stephen slightly modifies this definition and presents it as, “A crime is a violation of a
right considered in reference to the evil tendency of such violation as regards the
community at large”.

Blackstone defines crime only the violation of public rights, while Stephen
includes the element of violation of public duties as well. For example a directors of a
company fail to manage its affairs properly the mill is closed, workers are rendered
unemployed, production of a commodity essential for the society is stopped. Will it
not be an act, which is injurious to public or the society? Can we prosecute the
directors for any crimes? The answer certainly not then what is crime? A crime is
those forms of legal wrong which are regarded by the law as being especially
injurious to the public at large’

Stephen further defines crime is an act forbidden by law and which is at the
same time revolting to the moral sentiments of the society. If we look, up to the penal
codes of different countries we find that there are certainly, some acts which though
not immoral are highly criminal and at the same time, there may be acts, which are
highly immoral but not criminal.14

As Austin contended that, a wrong, which is pursued at the discretion of the

injured party and his representatives, is a civil injury, a wrong, which is pursued by
the sovereign or his subordinates, is a crime. Thus according to Austin, in case of civil
wrong a State does not interfere until the wrong has been committed and proceedings
are initiated by the injured party or by some other person acting on his behalf. In case
of criminal wrong proceeding can be institute by the sovereign or his subordinate
along. There are many cases of crimes under the Indian Penal Code where prosecution
cannot launched unless the aggrieved party makes a complaint. It is only in case of
serious crimes that the State may on its own initiative take action to punish the wrong
14
http://www.articlesbase.com/criminal-articles/definition-of-crime-3317256.html last access on dated
4/08/14 at 5.00 pm.

36
doer by initiation of criminal proceedings in its own name. For example in case of
adultery under section 497 or criminal elopement under section 498 of the IPC a
complaint by the person aggrieved is necessary. No court shall take cognizance of the
offence under the section unless a complaint is made by the husband of the victim
woman. Donald also admitted the same thing "Crime is a social injury and an
expression of subjective opinion varying in time and place.

It is very difficult to define crime, we can describe it and may state that in a
crime, we find main three component. Firstly, it is a harm brought about a anti social
act of human being, which sovereign power want to prevent, second the preventive
measures taken by the state appears in the form of threat of sanction or punishment
and thirdly the legal proceeding, where in the guilt or otherwise.

2.2.1 Elements of Crime

The fundamental principal of criminal liability is that there must be a wrongful

act- actus reus, combined with a wrongful intention, mens rea. This principle is
embodied in the maxim, actus non facit reum nisi mens sit rea. Meaning an act does
not make one guilty unless the mind is also legally blameworthy. The mere criminal
intention not followed by a prohibited act cannot constitute a crime. Similarly, mere
prohibited act without guilty mind also does not constitute the crime. Any act is not
crime, if the actor has committed it without guilty intention.

(a) Mens Rea:

The essence of criminal law has been said to lie in the maxim-"actus non facit
reum nisi mens sit rea." Bishop writes 15 , "There can be no crime large or small,
without an evil mind. It is therefore a principle of our legal system, as probably it is of
every other, that the essence of an offense is the wrongful intent, without which it
cannot exist." This examination of the mental element or mens rea requisite for crime
will be restricted with reference to the use of the term itself as far as it signifies the
mental element necessary to convict for any crime, and only regarding crimes not
based upon negligence.

To comprehend the beginnings of the mens rea concept at the end of the
twelve century, two specific influences must be observed one was the Roman law,

15
scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi last access on dated 7/7/2014 at
9.00pm.

37
recently verified and sweeping over the European continent with renewed vigor. It
was again recalled that Cicero had set it down that it is an implied rule of mankind to
punish not the occurrence but the 'consilium,' and that 'sciens dolo malo' had been
found in the laws of Numa. The Roman 'dolus' and 'culpa' were being grafted onto the
English Law and along with them the notion of mental element in crime."

The second influence, more powerful than the first, was canon law and a
consequent insistence upon moral guilt. A consideration of sin from the view point of
canon law involves the mental element almost equally with the physical act. In the
Sermon on the Mount, Christ seems to have laid the philosophy to support this
proposition here, as was pointed out, the desire, wish, and intent determine
culpability. Although, as previously observed, Leges Henrici Primi clearly set forth
the early notion of absolute liability regardless of evil intent, nevertheless, in
discussing perjury, the same work offers "reum non facit nisi mens rea" as the law
applicable thereto.

"The mutual reactions of the teaching of St. Augustine and Theodore of

Tarsus led to the definite acceptance of the doctrine of mens rea as a part of our
criminal law." St. Augustine taught that good works become compensation for an
injury done to God. In other words, they are the 'bot' of the Anglo-Saxon law as
applied by the Church to spiritual things. It must be here observed that about this
same time the court of chancery was gaining power and its chancellor, a high
ecclesiastic, was softening the rigors of the law with the principles of equity.

Bracton wrote his work, De Legibus et Consuetudinibus Angliae, thereby

strongly influencing the later shaping of the common law. It is worthy of note that
Bracton's work was replete with ideas borrowed from canon law. Maitland' has
asserted that Bracton in writing on homicide has literally taken over a dissertation
from the canonist, Bernard of Pavia, and inserted it as part of the common law.16

Sayre writes: "Although the greater part of Bracton's book is a statement of the
actual English practice, in some passages it is very evident that he is merely pouring
into English common law molds, ideas gained from the canonists." He further

16
scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article. last access on dated 19/8/2014
at 9.10 pm.

38
comments that in De Legibus Bracton writes: "We must consider with what mind
(animo) or with what intent (voluntate) a thing is done, in fact or in judgment, in order
that it may be determined accordingly what action should follow and what
punishment. For, to take away the will makes every act indifferent, because your state
of mind gives meaning to your act, and a crime is not committed unless the intent to
injure, intervene, nor is a theft committed except with the intent to steal."

Bracton's writings reveal, however, that he was conscious of the existing

discrepancies of the Roman legal ideas and the actual English practice, in such
matters, for example, as seeking the king's pardon after the felon has been declared
guilty. He further states that the king "must sometimes as a favor (de gratia) concede
to a man life and limb, as where one has killed a man through misadventure or in self-
defence." Bracton has also emphasized the mental element in felonies other than
homicide, in his time, these being arson, rape, robbery, burglary, and larceny. The
Roman Law inclination of this writer is shown when his writings regarding larceny
are examined. The old appeal of larceny was the early procedure to recover stolen
goods in the possession of another, and was the 'actio furti' in the early English law. It
could be successfully upheld without any proof of a mental element “against one who
is no thief, but an honest man."' However, when Bracton lays down the definition of
larceny, he makes part and parcel of the 'actio furti,' the mental element of 'animus
furandi. It is quite apparent that Roman law and canon law, as evidenced in the
writings of Bracton emphasized to a high degree the mental requisites of criminality,
and in this respect marked the beginning of a mens rea’s concept in criminal law

Mens rea is a legal phrase used to describe the mental state of a person, while
doing any act, some intention is there. It can refer to a general intent to break the law
or a specific, premeditated plan to commit a particular offence. For conviction of an
accused, prosecution must prove a guilt of accuse beyond reasonable doubt that the
suspect actively and knowingly participated in a crime, which harmed another person
or his or her property.

The term mens rea comes from the writings of Edward Coke, an English jurist
who wrote about common law practices. He advocates "an act does not make a person
guilty unless (their) mind is also guilty". This means that while a person may have
committed a criminal act, they can only be found guilty of criminal activity if the deed
was deliberate.

39
 Mens rea is a technical term, generally taken to mean some blameworthy
mental condition, the absence of which on any particular occasion negatives the
condition of crime. It is one of the essential ingredients of criminal liability. A
criminal offence is committed only when an act, which is forbidden by law, is done
voluntarily. The term means rea has been given to the volition, which s the motive
force behind the criminal act. An act becomes criminal only when it performs with
guilty mind. Ordinarily, a crime is not committed, if, the mind of the person doing the
act is innocent. There must be some blameworthy condition of mind before a person if
made criminally liable. For instances, causing injury to an assailant in private defence
is no crime, but the moment injury is cause with intent to take revenge, the act
becomes criminal. However, the requisite guilty state of mind varies from crime to
crime, what is an evil intent for one kind of offences may not be so for another kind.

For example, in the case of murder, it is intention to cause death. In the case of
theft, an intention is to steal. In the case of rape an intention to have forcible sexual
connection with a woman without her consent, in the case of receiving stolen
property, knowledge that the goods were stolen, and in the case of homicide by rash
and negligent act, recklessness or negligence.

In simple, mens rea determines whether someone committed a criminal act

purposefully or accidentally. This idea commonly applies to murder cases. The
perpetrator’s mens rea, or mental state at the time of the killing, is an essential factor
in whether they will be declared guilty or innocent. In order to receive a conviction,
the lawyer must prove that the accused party had some intention or willingness to end
the life of another person. On the other hand, if evidence shows the death to be
accidental and unavoidable, the suspect must be declared innocent and set free.

In 1962, the American Law Institute created the Model Penal Code (MPC) to
better define mens rea. It stated that in order to be blameworthy for any activity, the
suspect must have done the act willingly, with the knowledge of what the final result
would be or in a reckless manner with no consideration for the safety of others.
Actions that meet these qualifications are view as intentional crimes, even if the
perpetrator claims to be unaware that their activities were illegal. This concept falls
under a U. S. law which states "ignorance of the law or a mistake of law is no defence
to criminal prosecution".

40
 In tracing the development of mens rea in the criminal law, it is difficult to
escape the fact that mental intent as a necessity for criminality has ever been a
variable. It seems to have varied directly with the ideals and objectives of criminal
justice. In the very beginning, the main task of criminal administration was to placate
through its efforts, groups of people who would accept it as a substitute for the
prevailing system of blood feuds. In this stage, courts had to decide between a
malicious intent and an accidental happening. After this, there occurred a shifting in
the objectives of criminal justice towards the punishment of unmoral acts. This latter
was due to canon law and Church influence on the morals of the people. Moral
blameworthiness appeared and mens rea was measure by the yardstick of the moral
code. Sayre has written, "Our modern objective tends more and more in this direction,
not of awarding adequate punishment for moral wrongdoing, but of protecting social
and public interests." Instances of this change of 'flavor' in mens rea are noted in cases
where, the intent prompted by religion and ethics did not stay the conviction of a
Mormon who married a second time while his first wife was living. Moreover, where
the violation of a Sunday ordinance by one who in conscience believed the Sabbath
should be observed, was convicted of crime. In earliest times such cases would have
been measure according to their respective degrees of moral blameworthiness,
whereas, now the social and public interests require protection both against such ideas
together with their evil intentions.

However, mens rea has thus come to be a very technical conception with
different technical meanings in different contexts, It has never wholly lost its natural
meaning and, because its natural meaning has never been wholly lost sight of, the
necessity for its presence. In some form has supplied the principle upon which many
of the circumstances, which will negative criminal liability, are based. These in their
turn have been so developed that they have become the foundation of different bodies
of technical doctrine; and in these ways a large part of our modern criminal law has
been developed."

Indian criminal Law and Mens Rea :

In Indian criminal law, the concept of mens rea is recognized but not as the
common law doctrine. However, the mens rea, which is used in the Indian criminal
law is based on the various different term. At the time of making of the Indian Penal
code , Lord Macaulay prefer to import the different term which shown the evil

41
intention of the person who commits criminal act. The mens rea in the criminal law is
recognized by the term as like intention, knowledge, and negligence. Almost all the
offences under the IPC are qualified by one or other words such as ‘Wrongful gain’ or
‘wrongful loss’ ‘Dishonest’ and ‘fraudulent’. All these words shows the guilty
intention or mens rea behind the act. Thus, the mens rea is not found in the any
section of IPC.

The Indian criminal Law, that the Indian Penal Code, chapter IV of it deals
with ‘General Exception’ wherein the act which otherwise constitute offence cease to
do so under certain circumstances set out in this chapter. This chapter provides
certain circumstances under which though the person commits the act, it results in the
injury but due to absence of the blameworthy mind, that act is not liable for any
punishment or it is exempt from the punishment. This chapter provides the
circumstances, which are nothing but the principles of the common law system. All
these general exception are recognized the concept of mens rea in the IPC.

Dr. K. I. Vibhute observed and refer the views of other writer, against this
background, a question as to whether the maxim ‘actus non facit reum nisi mens sit
rea’ in general, and of the common law doctrine of mens rea as an independent
doctrine, in particular, in the interpretation of the provision of the IPC deserves our
attention. However, there seems to be no unanimity amongst jurists in their response
to the query. While contenting this he refers the contention of two jurists, that is as
following

As Mayne Observed, “Under the Penal code such a maxim in wholly out of
place. Every offence is defined and the definition states not only what the accused
must have done, but the state of his mind with regard to the act when was doing it. It
must have been done “knowingly” ‘voluntarily’, ‘Fraudulently’, ‘dishonestly or as
like..as like this the imminent writer Ratanlal & Dhirajlal also contented regarding
mens rea in the Indian Penal Code17.

However, it is general rule that mens rea is essential to constitute the offence.
But there are certain provisions in Indian Penal Code, 1860 in which the mens rea
though absent then also criminal liability can be impose on the person for example
section 292 of the IPC deals with selling, hiring, distributing the obscene books. The

17
P S A Pillai’s Criminal law, K.I. Vibhute (2014) LexisNexis, Gurgaon. Page 41

42
section is dealingwith strict liability therefore no need of mens rea is required to
impose criminal liability under this section.

As the Indian criminal law recognized mens rea which constitute all the
following things:

i) Intention

The term intention is very difficult to define even the Indian Penal Code has
not defined the term intention. It is common to understand the term but difficult to
define. In common use it means object, purpose, ultimate aim or design behind any
act. Intention is the conscious excise of the mental faculties of person to do an act for
the purpose of satisfying a purpose. Therefore, generally the intention is related to the
consequences relating to act and not to the act itself. In IPC the term intention is not
used in every section but in various sections it is express by using the word
voluntarily or knowingly sec 39 of IPC defined the term Voluntarily.

Section 39: “A person is said to cause an effect voluntarily when he causes it

by means whereby he intended to cause it, or by means which at the time of
employing those means he knows or had reason to believe to be likely to cause it .”18

The definition itself gives importance to cause rather than the act means effect
is more important by the term voluntarily it is to be understood in relation to causation
of effect and not to doing of acts, which those affect result. While describing the
concept Indian Penal Code has classified that, there must not only be intent but it
should also be pre planned preconceived and not a shortly caused intention. Intention
does not include the term motive, which is different from it.

ii) Recklessness

This is another state of mind, on which the criminal liability can be imposed
on the person. Recklessness is the state of mind of person who foresees the possible
consequences of his conduct, but act without any intention or desire to bring them
about. In general terms, being reckless refers to the taking of an unjustified risk.
Black's Law Dictionary defines recklessness in American law as "Conduct whereby
the actor does not desire harmful consequence but foresees the possibility and
consciously takes the risk," or alternatively as "a state of mind in which a person does

18
Section 39 Indian Penal Code, 1860.

43
not care about the consequences of his or her actions."19 Thus the recklessness is one
of the state of mind which is sufficient to impose the criminal liability on the person .

Motive and Intention

While discussing the concept of crime, and its essential, the motive and
intention are usually need to discuss, because motive is similar in the preview of the
nonprofessional, but motive and intention are very much different concept. The term
Motive is define by Webster Dictionary as, “An emotion, desire, physiology need or
similar, impels that acts as an incitement to action”. It is one kind of motivation to
commit the crime. This is different from the intent to commits the crime. In crime
motive may be good or bad that never change the criminality of the act, only it may
affect the duration of the imprisonment.

The term motive is very much different from the intention, generally there is
minute difference between motive and intention. To constitute crime, guilty intention
is most important ingredient, but motive is too relevant to constitute the crime.
However, motive is going to considered for reducing the punishment. While any act
is going to perform, it may perform with the different motive and the intention behind
that may be different. The motive behind the crime may be good or bad, it never
makes different. The motive means the final object behind the act, that may be good,
and the Court cannot acquit accuse on the bases of the good motive. When a men
commits theft of bread for keep away his children from starvation, his motive behind
it is good and natural, then also he is liable for the offence of theft. The motive behind
the act may be good or bad, it does not change the illegal act in legal act. The base of
the criminal law is the guilty intention and not the object of the actor considered by
the criminal law.

Intent means conscious objective or purpose. Thus, a person commits a

criminal act with intent when that person's conscious objective or purpose is to engage
in the act, which the law forbids or to bring about an unlawful result. Motive, on the
other hand, is the reason why a person chooses to engage in criminal conduct. If intent
is an element of a charged crime, the prosecution beyond reasonable doubt must prove
that element. In this case, intent is, as I have explained, an element of the crimes

19
https://en.wikipedia.org/wiki/Recklessness_(law) last access on dated 30/082014 at 8.00pm.

44
of:(specify). Motive, however, is not an element of the crimes charged. Therefore, the
People are not required to prove a motive for the commission of the charged crime(s).

Nevertheless, the jury may consider evidence of a motive or evidence of the

lack of a motive. For example, if you find from the evidence that the accuse had
motive to commit the crime charged, that is a circumstance you may wish to consider
as tending to support a finding of guilt. On the other hand, if the proof establishes that
the accused had no motive to commit the crime charged. That is a circumstance you
may wish to consider as tending to establish that the defendant is not guilty of the
crime charged.

iii) Knowledge

Knowledge is also part of the mens rea whenever any person does any act
having knowledge of its consequences then it is called as an intentional act.
Knowledge is awareness on the part of the person concerned indicating his mind. A
person can be supposed to know when there is a direct appeal to his sense knowledge
is an awareness of the consequences of the act. It is the state of mind entertained by a
person with regard to a exciting facts which he has himself observed or the existence
which he has been communicated to him by person whose veracity he has no reason
to doubt. Knowledge is essentially subjective. In various cases intention and
knowledge merge into each other and mean the same thing more or less an intention
can be presumed from the knowledge. Knowledge and intention are quite to much
similar, but having very thin different among it. The different can easily drawn,
knowledge as contract to intention, signifies a state of mental realization in which the
mind is a passive recipient of certain ideas in it, while intention connotes a conscious
state of mind in which mental faculties are summoned into action for the deliberate,
prior conceived and perceived consequences. 20

Having knowledge of the consequences of act is important condition of mind

and hence it is part of the mens rea, therefore, the IPC uses the term knowledge in
various section, for example Section 307 of IPC deals with the offence of attempt to
murder. In this offence the opening words provides that whoever does any act with
such intention or knowledge. This section itself provides that the intention or
knowledge is on same footing while dealing with the guilty mind. Therefore, the

20
P S A Pillai’s Criminal law: K.I. Vibhute (2014)LexisNexis, Gurgaon. Page 45.

45
knowledge is also the component, which includes in the mens rea. Thus, the Indian
Penal Code recognized mens rea in the form of knowledge.

iv) Negligence

The concept of mens rea is not unique, the mens rea is very much depend on
the nature of the crime committed in a particular circumstances. The mens rea can be
trace in some cases on the basis of intention or knowledge and even on the basis of
way of performing any act. The mens rea can be seen in negligence. Thus, law has
developed various levels of mens rea or intent such as negligence, recklessness,
knowledge and purpose. Based on the nature of the offence, the requirement in
particular statutory provisions and the object of the particular statute, the court have to
decide what is the extent or level of criminal intent that is require to convict a person
for offence.

Negligence appears indeed to be an inferior, almost aberrant ground for

criminal liability. Every interest protected by the criminal law is against intentional
violations; but only a few-life, bodily integrity, and sometimes property-are secured
against negligent risks. Although any offence may be committed intentionally, the
prevailing Western rule of statutory interpretation is that negligence is punishable
only if the criminal code so prescribes.' Many common law courts hedge further
against punishing negligence by requiring something more than ordinary negligence
to support a criminal conviction. All of these restrictions reflect the assumption that
intentional conduct occupies the core of the criminal law while negligent risk-taking
is a theory relegated to the fringes of criminal responsibility.21

Negligence is the gross and culpable neglect or failure to exercise that

reasonable and proper care and precaution to guard against any injury either to public
generally or to the individual in particular. A person is negligent when he fails to
exercise the due care and caution while doing any lawful act. The concept of
reasonable care is not define anywhere, however the test of the reasonable care is
depend on the view of prudent man. While performing any act the person must take
care as a prudent man takes, that is called a reasonable care. Therefore, whoever fail
to take that care and caution and if his act affect anyone, that act is called as a

21
The Theory Of Criminal Negligence: A Comparative Analysis * By Georg, P. Fletcher

46
negligence act of the person. This negligence is considered as a mens rea for imposing
the criminal liability on the person.

(b) Actus reus

The most important element of crime is actus reus. It is nothing but physical
act but only physical act does not constitute the elements of crime. The general
meaning of the actu reus is nothing but when any human being perform any act or
result of his physical conduct. Moreover, law prohibits the result of his human
conduct, and then it constitutes the elements of crime. The word actus reus may
therefore define as,” Such result of human conduct as the law seeks to prevents”.
Sometimes it called the external element or the objective element of a crime, it is
Latin term for the "guilty act". Which, when proved beyond a reasonable doubt in
combination with the mens rea.

The term Actus reus has been given a much wider meaning by Prof. Glanville
Williams in his book Criminal Law. He says, circumstances and consequences
specified in the rule of law as constituting the forbidden situation .Res must be taken
as indicating the situation specified in the actus reus as on that, given any necessary
mental elements, is forbidden by law. In other words, actus reus means the whole
definition of crime with the exception of the mental element-and it even include a
mental elements in so far as that is contended in the definition of an act. This meaning
of actus reus follows inevitable from the proposition that all the constitute of a crime
are either actus reus or means rea.”

Human Conduct or an Activity:

An act is, define as ‘an event subject to the control of the will’ In other words
an act means something voluntarily done by human being, for example giving a blow.
An act may be analyzing as consisting of three parts.

A) Its origin in some mental or bodily activity or privacy of doer that is a welled
movement or omission.

B) its circumstances and

C) its consequences

These are essential component of the actus reus as an elements of the crime.
K.D. Gaur has rightfully mention that if A shoots B to death with a rifle, the mental

47
element of act are first is origin or primary stage, namely a serious of muscular
contractions by which the rifle is raised and the trigger is pulled secondly the
circumstances, the fact that the rifle is loaded and is in working order, and that the
person is killed within range, thirdly the consequences, the fall of the trigger ,
explosion of the power, the discharge of the bullet, striking of the body of the victim,
resulting in his death. All these facts are implied in the statement ‘A kills B and they
constitute an act for which he will be criminally liable.

Result of Conduct

To constitute a crime, there must always be result brought about human

conduct, a physical event which the law prohibits Actus reus is the result of human
conduct and is an event. In simply a crime is constitute by the event and not by the
activity which causes the events. Once the desire act is accomplish the acuts reus of
crime is complete and how the contemplated event took place is not of much
significance except for the purpose of fixing criminal liability. If the desired result is
not achieved, the person is not responsible for the intended criminal act, which could
not materialize. Actus reus is the Latin term used to describe a criminal act. Every
crime must be considered in two parts-the physical act of the crime (actus reus) and
the mental intent to do the crime (mens rea).

Act prohibited by Law

To establish actus reus, a lawyer must prove that the accused party was
responsible for a deed prohibited by criminal law. Only that act that law makes them
prohibited or forbid are crime. No crime is committed when a person exercising his
lawful right of private defence cause harm to another. Likewise, if an onlooker who
happens to be a good swimmer does not rescue a child about to be drowned in a pond
he is not liable for any offence because there was no legal duty on his part to rescue a
person. Omission, as an act of criminal negligence, is another form of actus reus. It
lies on the opposite side of the spectrum from assault or murder and involves not
taking an action that would have prevented injury to another person. An omission
could be failing to warn others that you have created a dangerous situation, not
feeding an infant who has been left in your care, or not completing a work related task
properly which resulted in an accident. In all of these cases, the perpetrator's failure to
complete a necessary activity caused harm to others. The exception to actus reus is

48
when the criminal actions are involuntary. This includes acts that occur as a result of a
spasm, any movement made while a person is asleep or unconscious, or activities
participated in while an individual is under a hypnotic trance. In these scenarios a
criminal deed may be done, but it is not intentional and the responsible person will not
even know about it until after the fact.

Actus reus is commonly defined as a criminal act that was the result of
voluntary bodily movement. This describes a physical activity that harms another
person or damages property. Anything from a physical assault or murder to the
destruction of public property would qualify as an actus reus.

Thus the act which is having the aforesaid aspect constitute ingredient of the
crime. The physical act along with all the character which are discussed as above are
required for the crime. There are various act which result in the injury or damage to
the person or property but it does not constitute the crime.

2.3 Crime in present era

The society in the last two decades has distinctly changed and the present era
is known as information technology era, the present life is totally depending upon the
computer and the internet. Therefore, day-to-day life is depending on computer. Even
the banking, LPG gas booking, railway ticket and mere application for any job is
required the computer and internet, therefore the human life is totally change, this
bring the new challenges before the state and the authority which are regulating the
law and order in the society. Two things mark the present era: heavy reliance on
technology and virtual space. However, behind the interfusion of these two there
exists a world of potent threat and risks. These threats and risks are very much latent
in nature and mostly the one committing it or the one upon whom it is committed are
extremely difficult to identify. For instance in crimes like cyber phishing, where a
user shares his credentials to a disguised trustworthy site but subsequently becomes a
victim of fraud.

This internet evolution can be call as second industrial revolution. This

revolution brings certain new things as like paperless contract, digital signature and
online transactions. This new things leads the new way of money gaining by wrongful
ways. Traditional laws formulated to govern a simple and less criminal world are
dumb and toothless. Modern approach to crime is a functional approach. It aims at the

49
function played by the law in a civilized society. Scientific development, industrial
developments, industrial revolution, refinement of political institution, education and
academic enlightenments of the individual, the loosing religious grip of society and
the feeding moral norms have change the configurations of crime in modern society
more so in the information society. Accordingly, the function of law has become
diverse. The wolfendan committee in 1958. highlighted the functional approach to
crime in England and observe that the function of criminal law is preservation of
public order and decency. The protection of citizens against exploitation and corrupt
behavior of other, it particularly protects the weaker, the crime prone and the
inexperienced, the function of law does not go beyond this22.

Initially the criminal law preserves the public order and morality. Then the
phase of civilization comes, during that period also, criminal law was plain and crime
were simple and limited in nature. The jurisprudence today knows that no crime can
be committed unless there is a mens rea and actus reus. Almost all the crime requires
proof of a mental element of some sort. Some court has held that all crime exists
primarily in the mind. Every offence require a particular state of mind express in the
particular provision of the law by the words, ‘with intention’, ‘recklessly’, ‘unlawful’,
‘malicious’, ‘willful’, ‘knowingly’, ‘knowing or believing’, ‘fraudulently’,
‘dishonestly’, ‘corruptly’ etc. there are the various state of mind which are different
from each other. However, these all state of minds are comes under the fundamental
tenets of criminal liability.

Due to the technical development, human activities are subjected to statutory

liability whenever any person performs an act though he is not having any special
state of mind, as require in initial period, then also still he is criminally liable. This is
called strict liability; a statute imposes such a liability. Thus, criminal law has evolved
from the times immemorial to cyber age and is being developing constantly. It should
not forget that criminal law is instrument of criminal law are gearing up for a
revolution. This revolution gives a common way to commit the crime without going
on a particular place that is the computer. In a present days the offences regarding
money or documents can be committed by way of computer or by using the cyber
space or by trespassing the authorize cyber space without the permission of the
concern person or legal occupier. It means the criminal law though not change along

22
Cyber Law: Talat Fatima, (2011) Eastern book company, Locknow. Page 29.

50
with the time but the way of committing the same crime has undergone change.
Therefore, the first schedule to the Information Technology Act of 2000 has amended
certain provisions of the Indian Penal Code 1860. The amended provisions have been
widened to include offences involving electronic records. Sec 192 of the Indian Penal
Code has amended the meaning of fabricating false evidence to include any false
entry in any book or record, or electronic record or making any document or
electronic record containing a false statement.

These amendments show that the notion of crime is not new but the way of
committing the same crime is change. Therefore, the crime in the present era is not
new but it is as like the olden days but the factors are some where change. Every
crime tried in court has two factors: the actus reus, the actual criminal act, and mens
rea, the intent to commit that act. Prosecutors must prove that both of these conditions
existed to win a conviction. Traditional forms of crime violate state, national, and
local laws. High-tech crime (or computer crime) encompasses a wide variety of
criminal activities that also breach state, or federal laws, but is done so through the
computer, including hacking, software piracy, malware, electronic money laundering,
harassment, and even identity theft.

The difference between high tech crime and traditional forms of crime include
technology-allowing individuals to commit traditional types of crime without leaving
their home. Another difference is individuals who are involved in computer crimes
have the ability to commit criminal acts across state lines, or even across international
boundaries, often time making it impossible to prosecute. An illegal act performed via
the internet in one state, might not be illegal in another.

2.3.1 Communication Device and crime

The present era is era of communication. The life is drastically change and the
communication techniques connected the people with each other. The communication
in olden days was quite difficult. Due to the low speed of communication, there are
certain problems in the society. The communication was too slow, due to that the
commercial society faces problems. Then the society develops and certain
communication techniques evolved.

Since the inception of civilization, human being has always been motivated by
the need to make progress and for betterment of the existing technologies. This brings

51
the tremendous development and progress. Among all the developments internet is
most important development. Internet is a global network of computers, which
connect the common person with world.

Internet technology is rapidly becoming a necessary of modern social and

economic life. It is opening new opportunities and new avenues for each individual
members of society. The people who use internet lives in different world but in cyber
space, internet user are not having geographical address. In order to be a cyber society
there have to be people who allow themselves to believe in it. Thus, this cyber society
is worldwide, broadcasting capability, mechanism for sharing information. In simple
words internet is a newly evolved communication device.

Before internet, the communication takes place by different traditional

methods. The traditional methods are like sending a message by letters, by telephone.
This telephone has reduced the time and connect the people, which has change the
preview of communication. By this device, the communication is very easy. However,
along with the development the wireless connectivity is emerged by which man can
talk with the other person. This is possible only by the internet, internet bring the
revolution in the information technology.

The internet revolution has made the world a smaller place. It has changed the
way in which individual communicate and maintain relationship with each other with
national and international level. The World Wide Web (www) is not restricted by
geographical, social or political boundaries and hence it is very difficult tool to carry
out any kind of activity, be it economic, political, administrative, educational,
religious etc. The expenditure incurred can also be considered negligible as compared
to other means of doing same.23

Due to the easy excess to the internet and less expenses, it gets huge
popularity. Every section of the society tries to use it because its having various
merits in comparison with the traditional device of communications. One important
nature of this communication device is that it is possible from one corner of world to
another corner by seating in own house. Therefore, it makes a world as a global
village. By this device person can communicate with the stranger without giving his

23
Anuradhe Parasar (2006): Impact of internet on society, Page 3.

52
identification. This nature of internet leads to the most popular way to do the illegal
activities by using the internet.

Following types of high tech crimes in relation to traditional crimes include

the as:

1) Identity theft is a high tech crime that can be compared to its traditional
counterpart of larceny. Identity theft involves stealing an individual's personal
information, and then using it maliciously. Identity theft occurs on the internet,
as well as in person. Criminals have been known to steal information through
a variety of personal ways, including sifting through people's garbage, or using
a mobile phone, and taping an individual typing in their ATM number.
Compared to victims of traditional larceny, identity theft victims are most
likely not to know who their 'attacker' was. Like larceny, identity theft is a fast
growing crime, and occurs frequently. Larceny involves stealing a person's
property. Similar to identity theft victims, most victims of larceny are not
physically harmed in the process of the crime. "Larceny is the most frequently
occurring property offence”. High tech crimes that involve illegal online
gambling can be compared with the traditional form of illegal gambling. In
certain states, there are legalized forms of gambling, yet internet gambling
allows an individual in one state, that may prohibit such acts, gamble in
another state or country, in which it is legal. Again, this makes it more
difficult to prosecute individuals across state or country lines. Another
comparison is that traditional based casinos are government regulated, while
internet gambling is unregulated, and allows for anyone to participate,
including minors. As well as illegal gambling casinos, internet gambling is
also a source of benefit for members of organized crime.

2) Cyber stalking is comparable to stalking a person offline, and is another

criminal act that proposes problems. Cyber stalking involves using technology
to intimidate, threaten, or abuse an individual online. Unlike traditional
stalkers, cyber stalkers believe that they hide behind the anonymity of the
internet, and nobody will know who they are. Traditional stalking includes
harassment, or abuse through letters, calls, physical contact, or intimidation by
showing up at various places that the victim may visit or resides. Cyber
stalking and stalking are meant to instill fear in the victims. Both traditional

53
 forms of stalking and cyber stalking are harmful, and dangerous. Some
individuals do not believe that cyber stalking is just as threatening to victims
as traditional stalking, since the harassment is done through the computer.
There needs to be more awareness among law enforcement about cyber
stalking, and its potential to be just as dangerous as traditional stalking. Many
individuals believe that someone can stop a cyber stalker by staying off the
internet, but that is not the case. "'There have been reports, for example, that
alleged victims of on-line harassment have been told by police officers,
unfamiliar with the technology involved, simply to turn off their computers.'"
As with other cyber crimes, jurisdiction plays a part in cyber stalking. With
traditional stalking, the stalker is usually within the same proximity as the
victim, but with cyber stalkers, the stalker can be on the other side of the
country, or in across international borders. "This means that a potential
offender may not be within the jurisdiction where an offence is committed."

3) Another high tech crime involving cyber terrorism is comparable to its more
traditional form of terrorism. Traditional terroristic activity encompass
directing the activities at targeted individuals, or often time, buildings. "'The
FBI defines terrorism as the unlawful force or violence against persons or
property to intimidate or coerce a government or population in furtherance of
political or social objectives."

Cyber terrorism involves using the internet as a means of assault through

various activities, and includes wiring money to terrorist organizations, recruiting,
sending virus, malware, trojans, or logic bombs, or any other activity that destroys
information, or promotes terrorism. Unlike traditional terrorism, cyber terrorism
allows for the recruitment of others across nations, as well as communicating plans of
attack with members from all over the world, and even training.

Traditional terrorists have been known to use computers to map attacks. This
allows the terrorists a level of anonymity." both the 1993 and 2001 attacks on the
World Trade Center made use of computers in various ways, from managing
communications to helping plan the attacks in depth." Both forms of terrorism can
result in casualties. While traditional terrorists do not hide their attacks, and often
carry out their attacks in the 'open,' cyber terrorism targets its victims in a 'sneaky'
manner. For example, the United States relies on a computerized system that run

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networks, individuals would be vulnerable if someone hacked into any system that
controlled vital resources, such as water, power, or transportation. As a result of both
traditional terroristic activities and possible cyber terrorism, security has increased.
"In 1998, the federal National Infrastructure Protection Center (NIPC) was created to
serve as a focal point within the U.S. government for threat assessment, warning,
investigation, and response to threats or attacks against the nation's critical
infrastructure."

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