HISTORICAL BACKGROUND OF THE INDIAN PENAL CODE

• Under the ancient Hindu kings, the administration of civil and criminal justice was based on the rules of Dharma. In ancient Hindu law, law was discussed under 18 heads covering both modern civil and criminal branches of law.
• A Hindu code was compiled by the pandits of Banaras at the instance of warren Hastings, when the latter was the Governor. General of India. It was called the “Gentoo code”
•  When the Moghal rule was established over major portions of India, naturally Mohammedan criminal law supplanted the ancient Hindu criminal Law.
• Under Moghal rule, civil justice and revenue laws came under the authority known as Diwani, whereas military and criminal justice came under Nizamat.
• By the regulating act of 1773, a supreme court consisting of a chief justice and three puisne judges was established at Calcutta.
• Bombay was the first province in India in which a penal code was enacted. It was mount-stuart Elphinstone, the then the governor of Bombay, who issued a simple brief penal code in 1927, which continued in force till was superseded by the IPC.
• By the act of 1833, the governor-general of Bengal was raised into the position of the governor-general of India. He was empowered for the first time to legislate for the whole of India.
• On lord Macaulay’s arrival in India, a commission was appointed consisting of himself. Millet and sir John Mclead. During the fourth year i.e. 1834-1834, the commission settled the draft of what later became the Indian penal code, of which lord Macaulay was the principal author.
• The draft remained in that shape for no less than 22 years before it became law. This was due to the great mutiny and unsettled condition that prevailed in India.
• The IPC was brought into force from the 1 January 1862.

ACTUS REUS AND MENS REA

• The penal code nowhere defines what a crime is a “crime” can be said to be an act of commission or omission, contrary to law, tending to the prejudice of a community, for which punishment can be inflicted as a result of judiciary proceeding taken in the name of state.
• The fundamental principal of penal liability is Actus non facit reum, nisi Mens sit Rea, i.e., the act itself is not criminal unless accompanied by a guilty mind.

Element of crime

1. Actus Reus :  Actus       : “Act”, Reus        : Prohibited by law and made punishable by law.

An overt act i.e. the physical result of human conduct

2. Mens Rea :                 Mental aspect ie  Guilty mind

3. Concurrence between two

To constitute Actus Reus,

• There must be an act.
• The term act is not defined in IPC.
• Act means movement of any physical part of the body which produces consequences prohibited by law or made punishable by law.
• Case: - Shamsher Khan V.st. of Delhi (AIR 2001 SC)
• Omission to do act is also Actus Reus for the purpose of penal liability.
• Sec 32, 33 of IPC deals with omission. It includes illegal omission (what is illegal is defined U/S 42 of IPC)
• Actus Reus includes series of Act/ Omission.
• Act includes combination of Act/ Omission.
• Actus Reus has to be voluntary. (S.39 of IPC defines voluntary i.e. when act is done with knowledge that certain consequences would follow or had reason to believe)
• Act must produce some consequences or is likely to produce consequences.
• Court have evolved two maxim to facilitate or find out the state of mind of person in particular cases.
• Every person is presumed to know the natural consequences of his Actus Reus.
• Every person is presume to intend Actus Reus, which has caused those consequences.
• Person is liable for natural, proximate, immediate consequences of his Actus Reus.
• Where the connection between Actus Reus and resultant consequences is uncertain/ doubtful then benefit of doubt goes to accused.
• When there is chain of events leading to consequences taken place then the person who is in last of chain of event is answerable for whole consequences.
• Every person is liable for consequences which are attributable to his Actus Reus. Subject to statuary exceptions E.g. section 34, 35, 36, 149, 114, etc.
• Act producing those consequences or likelihood to produce those consequences must be prohibited by law.
• Act producing those consequences or likelihood to produce those those consequences must be punishable under law.

[As per Section 40, offence include Act made punishable under IPC or under any special law (S.41) or local law (S.42)]

MENS REA

• It means guilty mind, evilness of mind and sinfulness of mind, which does not have social approval.
• It relates to state of mind. There is no direct proof except confession.
• It has to be determine in reference to facts and circumstances of the case.
• It changes acc. to the nature of offence. Reason to believe, dishonestly, fraudulently, negligently, rach etc.
• No specific section of IPC provides for requirement of Mens Rea. But is spread over whole of penal code in positive and negative terms.
• Positive: - Use of word like dishonestly, negligently etc.
• Negative: - Exceptions or defenses (because of absence of Mens Rea).

Mens Rea when not essential: Strict liability

• Mens Rea is not essential in respect of five offences in I.P.C., Namely – Sec 121( Waging war), Sec 124 A (Sedition), Secs 359 and 363 (Kidnapping and abduction), and Sec 232 (Counterfeiting coins)
• Where a statute imposes strict liability, the presence or absence of a guilty mind is irrelevant.
• Several modern statutes passed in the interests of public safety and social welfare impose such strict liability Eg. The Arms1212 Act; narcotic drugs and psychotropic substances Act, 1985.

1. Where the penalties are petty fines1212 and where a statute has done away with the necessity of Mens Rea on the basis of expediency.
2. Public Nuisance is another exception to the doctrine of Mens Rea.
3. Another exception that might be mentioned here is related to the maxim1212 “Ignorance of the law is no excuse.”