It is one of the principles of the English criminal law that to constitute guilt there must be a guilty intent along with the act itself and that a crime is not committed if the mind of the person doing the act in question be innocent. The maxim governing the above proposition is actus non facit reum, nisi mens sit rea, i.e., the act itself does not constitute guilt unless done with a guilty intent.
There must be an intention to do some act before a person can be guilty of crime. In the words of Lord Kenyon “the intent and act must both concur to constitute a crime.” Thus mens rea in the case of murder means malice aforethought; in the case of theft an intention to seal and in the case of receiving stolen goods knowledge that the goods were stolen.
The maxim, therefore, connotes that the act itself does not make a man guilty unless his intention was to commit a crime. You shoot a jackal but actually killed a man behind a bush who was concealed from your view.
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No offence has been committed if you were not negligent and the act will be excusable as an accident. You are working with a hatchet and the head flies, off, killing a man who is standing by.
There is no offence if you have taken proper precaution and the act is excusable as an accident. But if you kill a man under circumstances which afford you no legal justification, you are guilty of murder.
The maxim actus non facit reum nisi mens sit rea is rooted in the antiquity of English legal history. The requirement of a guilty state of mind at least for the more serious crimes had come to be developed even by the time of Coke. In his Institutes, Coke categorically states the law as follows:
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“If one shoot at any wild fowl upon a tree, and the arrow killeth any reasonable creature after off, without any evil intent in him, this is per infortunium.”
It would thus appear that even from the time of Coke onwards it was well-settled that the doctrine of mens rea epitomised the twin premise of English criminal jurisprudence that in order to constitute a crime, there must be an actus rea accompanied by the requisite mens rea. To put in simple language, a completed offence requires both physical overt acts as also a guilty state of mind.
In crimes, requiring mens rea as well as actus rea, the physical act must be contemporaneous with the guilty mind; it is not enough that a mentally innocent act is subsequently followed by mens rea.
To put in the classic words of Lord Kenyon, C.J. in Fowler v. Pedget, (1798) 101 E.R. 1103 at p. 1106: “The intent and the act must both concur to constitute the crime.”
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Now it is well-settled that the maxim and the doctrine of mens rea, in its pristine essence, was one of criminal law applicable to the common law offences originally.
However, later it came to have its application as a rule of construction in interpreting statutory crimes as well.
Herein it signifies the rule that a guilty mind was an essential ingredient of a crime and if there was a conflict between the common law and the statute law, it was held to be a sound rule to construe the criminal statute in conformity with the common law.
However, the presumption of a guilty mind to constitute a crime in statutory offences was neither inflexible nor irrefutable.
Even in the strict realm of crimes this presumption of a guilty mind could be displaced by the language of the statute expressly or by its necessary intendment.
This principle is well highlighted in the oft quoted words of Lord Wright in the celebrated case of Sherras v. De Rutzen, (1895)1 QB 918, as under:
“There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence, but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals, and both must be considered.”
The aforesaid view has the stamp of approval by their Lordships of the Supreme Court in Ravula Hariprasad Rao v. State, A.I.R. 1965 S.C. 722. However, the more meaningful authoritative enunciation in this context is that by Krishna Iyer, J. In R.S. Joshi v. Ajit Mills Ltd., A.I.R. 1977 S.C. 2279, in the following terms:
Even here we may reject the notion that a penalty or a punishment cannot be cast in the form of an absolute or no fault liability but must be preceded by mens rea. The classical view that ‘no mens rea, on crime’ has long ago been eroded and several laws in India and abroad, especially regarding economic crimes and departmental penalties, have created severe punishments even where the offences have been defined to exclude mens rea.” It would thus be plain that the doctrine of mens rea, in essence, has application to the law of crimes and in its later day development is a rule of construction of criminal statutes.
Even in the realm of criminal offences mens rea may be excluded either expressly or impliedly by legislative mandate. Classic examples of such exclusions are sometimes in crimes of strict or absolute liability and as has been noticed above by Krishna Iyer, J., an offence of economic or anti-social nature. (Commissioner of Income-tax-tax, Patiala v. Mis. Patram Dass Raja Ram Beri, Rohtak, A.I.R. 1982 Punjab and Haryana 1,F.B.)
The maxim has, however, not so wide an application as it is sometimes considered to have. It has undergone a modification owing to the greater precision of modern statues: A statute may be so framed as to make an act criminal whether there has been an intention to break the law or otherwise to do wrong or not.
There is a large body of municipal law which is so conceived. Breach of the municipal bye-laws regulating the width of thoroughfares, the height of buildings the thickness of walls, or bye-laws governing the general welfare, health, etc. constitute an offence, whether the person committing it had made an accidental miscalculation or an erroneous measurement.
It is therefore, not possible to apply the maxim generally to all statutes. What is necessary is to look at the object of each act which is under consideration and see how far knowledge is of the essence of the offence created. Crimes are much more accurately defined by statutes today than they were before.
It has been laid down in Sherras v. De Rutzen, (I.Q.B. 918) by Wright, that mens rea is an essential ingredient in every offence except in three cases:
(1) Cases not criminal in any real sense but which in the public interests are prohibited under a penalty; (2) public nuisances; and (3)- cases criminal in form but which are really only a summary mode of enforcing a civil right.
The maxim actus non facit reum nisi mens sit rea has, however, no application to the offences under the Indian Penal Code as the various offences are carefully defined under the Code and contain expressly a proposition as to the state of mind of the accused.
The definitions clearly visualise that state of mind when they state whether the act must have been done ‘voluntarily’, ‘knowingly’, ‘dishonestly’, ‘fraudulently’, accidentally’, or the like.
Every ingredient of the offence, is, therefore, stated in the definitions. The chapter on General Exceptions governing all offences defined in the Code deal with the general conditions which negative mens rea and thus exclude criminal responsibility.
