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–Kuldeep
Pathak
LECTURE- 01: GENERAL INTRODUCTION TO LAW OF CRIMES
I. KINDS OF LAW
1) Substantive Law: This kind of law defines the rights and liabilities. The rights
which the person is entitled to and the liabilities, under which the person is, if any
act is done or omission is caused.
Example: Indian Penal Code, 1860, Indian Contact Act, 1872, Specific Relief Act
etc.
2) Procedural Law: This kind of law provides the mechanism as to in what manner
the rights and liabilities can be enforced, which are provided under the substantive
law. Thus, in this manner, the procedural law supplements the substantive law.
Example: Code of Criminal Procedure, 1973, Code of Civil Procedure, 1908 etc.
That, apart from the above broad categories, there can be other classification also
like- Civil law and Criminal law, Statutory law and common law, general law and
personal law, domestic law and international law etc.
Crime: In ordinary language, the term crime denotes an unlawful act punishable by
a state. The term "crime" does not, in modern criminal law, have any simple and
universally accepted definition, though statutory definitions have been provided for
certain purposes. The most popular view is that crime is a category created by law;
in other words, something is a crime if declared as such by the relevant and
applicable law. One proposed definition is that a crime or offence (or criminal
offence) is an act harmful not only to some individual or individuals but also to a
community, society or the state ("a public wrong"). Such acts are forbidden and
punishable by law.
Elements in Crime: Generally every act of criminal nature involves two elements:
a) Physical Element- Actus Reus (Guilty act): Actus Reus is physical element
in the crime, which means the physical act by which the offence has been done or
caused to be done. This can be in two manners-
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NOTE: Notes are for internal circulation for general guidance to the office staff and law interns and not for the commercial use.
NOTES ON LAW OF CRIMES. –Kuldeep
Pathak
(i) Act: That, the act consists of doing an act, an affirmative step in order to cause a
particular thing to happen. For example- stealing a thing, beating someone,
inflicting injury, causing damage to anything directly by physical action etc.
(ii) Omission: That, the omission consists in not doing of the act, which the person
is under obligation to do by law. For example- the coast guard at sea shore was
under obligation to save the person at sea shore, however, if he fails to save the
person and due to such failure, if that person lots his life, then coast guard is said to
caused omission and there by caused a crime.
b) Mental Element- Mens Rea (Guilty mind): Mens rea is the Latin for ‘guilty
mind’ and traditionally refers to the state of mind of the person committing the
crime.
Mens rea is the state of mind stigmatized as wrongful by the criminal law
which when compounded with relevant prohibited conduct constitutes a
particular crime. Crimes involving mens rea are of two types- 1) crime of
basic intent and 2) crime of specific intent.
In Crime of basic intent, the mens rea does-not go beyond the actus reus,
however, in crime of specific intent, it goes beyond the contemplation of
the prohibited act and foresight of its consequences and has a purposive
element.
MAXIM: Actus non facit reum, nisi mens sit rea- i.e. the intent and act must
both concur to constitute the crime.
CRIME = ACTUS REUS (Physical Element) + MENS REA (Mental Element)
Crime = Actus Reus + Mens Rea
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NOTE: Notes are for internal circulation for general guidance to the office staff and law interns and not for the commercial use.
NOTES ON LAW OF CRIMES. –Kuldeep
Pathak
However, under certain cases of serious nature a person can be prosecuted
merely on the basis of his guilty intention and such offences are- Waging war
against govt. (Section 121-123), Sedition (Section- 124-A) and assembly of
persons to commit dacoity (Section-402).
The intention of the person has to be inferred from the act/ omission done by
such person.
(ii) Motive:
Motive is an idea, belief or emotion that impels a person to act in accordance
with that state of mind.
Motive is usually used in criminal law to explain why a person acted or
refused to act in certain way or manner.
By motive is meant anything that can contribute to, give birth to, or even to
prevent, any kind of action.
An act which is unlawful cannot, in law, be excused on the ground that it was
committed from a good motive.
Motive, though not a sin qua non for brining the offence home to the
accused, is relevant and important on the question of intention.
Motive alone in the criminal law is not sufficient to bring home the offence.
(iii) Knowledge:
The mens rea of knowledge refers to knowledge about certain facts. It is "a
positive belief that a state of affairs exists."
Knowledge can be actual, constructive, or imputed.
Actual Knowledge: A defendant does not have actual knowledge if he
believes something to the contrary. The standard is subjective and the belief
of the defendant need not be reasonable, only honest.
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NOTE: Notes are for internal circulation for general guidance to the office staff and law interns and not for the commercial use.
NOTES ON LAW OF CRIMES. –Kuldeep
Pathak
Constructive Knowledge: Knowledge is also found where a defendant
suspects that circumstances exist and "deliberately decides not to make any
further enquiries" in case his suspicions prove well founded. A common
example is a person who purchases significantly inexpensive, but desirable
items from a stranger. Such a person is likely to be fixed with constructive
knowledge that the items were stolen. Anderton v. Ryan [1985] AC 560, HL (England)
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NOTES ON LAW OF CRIMES. –Kuldeep
Pathak
Burden of Proof:
That, the onus is on the prosecution to establish mens rea beyond all
reasonable doubt.
That, it is for the prosecution to prove existence of guilty intention, it is not
for the accused to show its absence.
That, the onus to prove prosecution element is on the prosecution and
defence is on defence.
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NOTES ON LAW OF CRIMES. –Kuldeep
Pathak
That, when a person is charged of any offence, he will always be charged/
make liable under the section of liability and not under the section of
culpability.
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NOTE: Notes are for internal circulation for general guidance to the office staff and law interns and not for the commercial use.
NOTES ON LAW OF CRIMES. –Kuldeep
Pathak
LECTURE- 02: INTRODUCTION TO INDIAN PENAL CODE
Section-2 of the IPC deals with the intra-territorial operation of the code.
The section provides for general application of the Indian Penal Code in
respect of all the offences committed by “every person”.
(i) That, the IPC applies to every person (all person without limitation,
distinction or discrimination including a foreigner).
(ii) The liability for punishment would arise for every act or omission
contrary to the provision of this Code.
(iii) Every such person shall be liable to punishment under this code and
not otherwise.
The corporal presence of the accused is not required for holding an accused
liable for committing an offence, provided all the ingredients of the offence
occur within the municipal territory of the country trying the offence.
Where the act is done abroad and the criminal effect is produced in India, the
crime is taken to be committed in India.
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NOTE: Notes are for internal circulation for general guidance to the office staff and law interns and not for the commercial use.
NOTES ON LAW OF CRIMES. –Kuldeep
Pathak
That, unless an act or omission complained is contrary to the provisions of
the IPC, no liability under the code would be incurred. (Dewan Singh v.
Empror- AIR 1937 Nag 55).
(ii) Ambassadors.
(iii) Alien enemies- In respect of acts of war alien enemies cannot be tried
by criminal courts. If an alien enemy commits a crime unconnected
with war i.e. theft, he would be triable by ordinary criminal court.
(iv) Foreign Army- When armies of one State are by consent on the soil of
a foreign State they are exempted from the jurisdiction of the State on
whose soil they are.
(v) Warships- Men-of-war of a state in foreign waters are exempt from the
jurisdiction of the state within whose territorial jurisdiction they are.
Section 3 and 4- deals with the extra territorial operation of the code.
Section 3 deals with- ‘the punishment of offences committed beyond, but
which by law be tried within, India’. The essentials of the Section are-
(i) If a person is liable to be tried for any act committed in India;
(ii) Such liability is by any Indian Law;
(iii) Then such a person would be liable under the IPC, for any such act
though committed outside India.
An Indian citizen when commits an offence outside India will be liable to be
tried at any place where he may be found in India, wherever he might have
committed the offence. This rule is based on the general principle relating to
extra-territorial laws.
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NOTE: Notes are for internal circulation for general guidance to the office staff and law interns and not for the commercial use.
NOTES ON LAW OF CRIMES. –Kuldeep
Pathak
CASE: Murder was committed in Sharjah (UAE) by Indian Citizen but police
refused to register a case and conduct the investigation against him. It was
held that- the action of police was illegal as Section 3 of the code provides
sufficient ground for police authorities to investigate into such offences. It
was in this context that Section 188 has been incorporated in the Criminal
Procedure Code. (Remia v. S.I. Police, Tanur- 1993 CrLJ 1098- Ker)
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NOTE: Notes are for internal circulation for general guidance to the office staff and law interns and not for the commercial use.