Author Name:   shashankshekhar333

A probe into presumption that requires mens rea as an element of crime and whether or not it should be used in cases of Statutory Offences....

Mens Rea in Statutory Offences

In the field of law, it is important to understand each and every cause of each and every act. Only then can a sound judgment be given in a case. If the judge does not consider all possible aspects and possibilities, then he will draw the correct legal conclusion most of the times but, not always. One of the most important things to consider with regard to any offence is the mens rea, or the guily intention. This element of crime (mens rea) has been in the picture almost ever since criminal law has been known to exist. It had been incorporated in definitions of crimes as far back as The Code of Hammurabi (1700 B.C.) through the use of words like “intend” and “knowledge”. But, as the years have passed, complexities regarding the use of mens rea have arisen and the courts constantly keep trying to resolve the issues regarding the application of the rule. Generally the question that arises in cases is that whether mens rea is present or absent in the offender. But, sometimes, the question is whether it is required or not. This happens in case of statutory offences. They may expressly or impliedly rule out the requirement of mens rea. The current research study critically analyzes this situation and takes into account the existing views and decisions on the issue.

Statutory Offence
An offence is basically a violation of law. In legal parlance, the word “offence” is generally construed as a criminal wrong. Hence, offence means a wrong in penal law. The Code of Criminal Procedure, 1973 defines “offence”as “any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle-trespass Act, 1871( 1 of 1871)”. This is a guideline for offences related to the Code. But, there are other types of offences too; the ones that are created by different statutes, like those related to taxation, national security, etc.. These are commonly referred to as Statutory offences. Offences have been classified in many ways. But, for this study, the relevant classification of offences would be into offences malum in se and offences malum prohibitum. Offences that are malum in se are the ones that are inherently wrong or evil, like murder, rape, etc.. The society at large recognizes them as wrong. They have developed as offences over the years and through decisions of the court. Hence, these are also called Common Law offences as they are developed through precedents. On the other hand, offences that are malum prohibitum are the acts that are wrong because they are prohibited by statutes. For example, offences created by Road Traffic Rules are not inherently wrong but, since they are the rules that have to be followed on the road, their violation would lead to penalty. Travelling in a car on the right side of the road is not inherently wrong but, it is an offence as the law does not allow it. It is these kinds of offences that are referred to as Statutory Offences. They are the ones that are created by statutes which require strict interpretation.

Statutory Offences are needed because, it is not only the crimes in the Indian Penal Code, 1860 that can harm the society but, another very important class of crimes (White Collar Crimes) also poses a big threat on the society. Numerous scams have been unveiled in the past 20 years. From Harshad Mehta to 2G scam, all have contributed towards harming the society. In fact, in 1962, the Government of India under Lal Bahadur Shastri (the then Home Minister) set up a Committee (Santhanam Committee) on Prevention of Corruption, which proposed certain socio-economic offences to be made a part of the Indian Penal Code, 1860 as a new Chapter. But, unfortunately this did not happen.

These offences were as follows :-
1. Offences calculated to prevent or obstruct the economic development of the country and endanger its economic health.
2. Evasion and avoidance of taxes lawfully imposed
3. Misuse of position by public servants in making of contracts and disposal of public property, issue of licences and permits and similar other matters
4. Delivery by individuals and industrial and commercial undertaking of goods not in accordance with agreed specifications in fulfillment of contracts entered into with public authorities
5. Profiteering, black-marketing and hoarding
6. Adulteration of foodstuffs and drugs
7. Theft and misappropriation of public property and funds
8. Trafficking in licences, permits, etc.

These crimes are very important for the society and protect public interest. Hence, the offences falling under this class are known as “Public Welfare Offences”. Hence, if a statute is enacted to recognize them as criminal offences, they would be Statutory Offences, commission of which would attract punishments.

Mens Rea
Actus non facit reum nisi mens sit rea
The above well-known latin maxim describes the relation between mens rea and a crime in general. Actus reus means a wrongful act. Mens rea means a wrongful intention. The maxim means that an act does not itself make one guilty unless the mind is also guilty. The mere commission of a criminal act or violation of law is not enough to constitute a crime. These generally require, in addition, some elements of wrongful intent or other fault. Mens Rea is a technical term. It means some blameworthy condition of the mind, 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 offences is said to have been committed only when an act, which is regarded as an offence in law, is done voluntarily. Hence, an act becomes criminal only when done with a guilty mind.

Before a criminal is made liable, he should be proven to have some blameworthy mental condition (mens rea). For example, when someone attacks you, then, causing injury to him in private defence is not a crime but, causing injury with the intention of revenge is a crime. This is how the presence of a guilty mind changes the nature of the offence. But, the requirement of a guilty mind varies from crime to crime. An intention which would qualify as the required mens rea for one crime, may not for some other crime. In case of murder, it is the intent to cause death; in case of theft, it is the intention to steal; in case of rape, it is the intention to have sexual intercourse with a woman without her consent, etc.. Hence, although mens rea is a sine qua non of a criminal act, its type and degree may vary from crime to crime. But, there are cases in which mens rea is not required for an act to be an offence (statutory offence). Such situations will be discussed in the following sections of this study.

Presumption requiring mens rea
In statutory interpretation, certain presumptions are taken into account by the court while interpreting the statutes. The presumption relevant here is that a criminal act in general requires the presence of mens rea. Almost all crimes that exist independently of any statute require, for their commission, some blameworthy state of mind on the part of the actor. Where a statute creates an offence, no matter how comprehensive and absolute the language of the statute is, it is usually understood to be silently requiring that the element of mens rea be imported into the definition of the crime (offence) so defined, unless a contrary intention is express or implied. Hence, the plain words of a statute are read subject to a presumption (of arguable weight), which may be rebutted, that the general rule of law that no crime can be committed unless there is mens rea has not been ousted by the particular enactment. In the case of Brend v. Wood, Lord Goddard, C.J. held that :-

“It is of the utmost importance for the protection of the liberty of the subject that a court should always bear in mind that, unless a statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind.”

Today, the kinds of offences are multiplied by various regulations and orders to such an extent that it is difficult for most of the law abiding subjects to avoid offending against the law at all times. Some law, out of so many, could be violated by chance without a guilty intention at some point of time. In these circumstances, it seems to be more important than ever to adhere to this principle. But, there is more to it. In the past, it also seemed that the importance of this presumption of mens rea was declining in importance. In Hobbs v. Winchester Corporation, Kennedy, L.J. said that “there is a clear balance of authority that in construing a modern statute, this presumption as to mens rea does not exist.” This can particularly hold good if Roscoe Pound’s definition of statutory offences is considered. He said that “such statutes are not meant to punish the vicious will but to put pressure on the thoughtless and inefficient to do their whole duty in the interest of public health or safety or morals.” There is also another angle to it. The world of today is one of machines. There is widespread industrialization and rampant growth thereof. Everywhere, there are high-powered machines. Very often, these machines are dangerous and may pose a health hazard to the worker employed. The Bhopal Gas Tragedy showed the world that compromising on safety standards is the first thing that industries do to cut costs. In respect of hazardous industry, the threat may not be just to the workers of the factory as in Bhopal but, also to persons residing in and around that area. In the said Tragedy, in 1984, there was a major gas leak of MIC gas from the Union Carbide factory in Bhopal. Thousands died and many are still suffering as a result thereof. Hence, it is in the interest of the larger good that there are laws which lay down standards and regulate the functioning of the industries, prevent, food adulteration, corruption, etc., and that these laws are strictly applicable, i.e., they are strictly construed without requiring mens rea in commission of the offences they create. This would benefit the society at large.

But, since the view against the presumption of mens rea cannot be applied universally in every case, after Hobbs’ Case, as years passed, the courts again seemed to be favouring the use of the presumption. But, later on, Lord Evershed analyzed the situation critically in a few of his judgments, one of the most important of which is that in the case of Reynolds v. G.H. Austin & Sons Ltd.. In this case, Lord Evershed said that :-

“Where the subject matter of the statute is the regulation for the public welfare of a particular activity – statutes regulating the sale of food and drink are to be found among the earliest examples – it can be and frequently has been inferred that the legislature intended that such activities should be carried out under conditions of strict liability. The presumption is that the statute or statutory instrument can be effectively enforced only if those in charge of the relevant activities are made responsible for seeing that they are complied with. When such a presumption is to be inferred, it displaces the ordinary presumption of mens rea. But, it is not enough merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended. It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. That means that there must be something he can do, directly or indirectly, which will promote the observance of the regulations. Unless this is so, there is no reason in penalizing him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim.”

Lord Evershed also said that 2 conditions must be satisfied if the presumption as to mens rea is to be rebutted; first, that strict liability must be required to give practical effect to the legislative intention; and, secondly, the person charged with a breach of the statutory requirements must have had some opportunity of furthering their observance. So, if the presumption as to mens rea is a general rule, then presumption against mens rea in statutory offences would be an exception to the rule. In such a case, the presumption of mens rea in statutory offences would in turn be an exception to that exception.

Presumption not used un Statutory Offences – an exception
This situation is one in which a statutory offence is committed and the presumption requiring mens rea is not used to decide the case. There have been many such cases in English as well as Indian courts. One of the early ones is R. v. St. Margarets Trust Ltd.. In this case, a contravention had occurred of Article 1 of the Hire-Purchase and Credit Sale Agreements (Control) Order, 1956. The article provided that a person should not dispose of any goods to which the Order applied in pursuance of a hire-purchase agreement unless the requirements specified in Schedule 2 of the Order were satisfied, the requirement being that 50% of the cash price should be paid before the agreement was signed. But, the said contravention was held to be an offence even though the act was innocently done. The words of the order were “an express and unqualified prohibition”. Its object was to help to defend the currency against the peril of inflation which, if unchecked, would bring disaster upon the country. Donovan, J. said that :-

“The present generation has witnessed the collapse of the currency in other countries and the consequent chaos, misery and widespread ruin. It would not be at all surprising if Parliament, determined to prevent similar calamities here, enacted measures which it intended to be absolute prohibitions of acts which might increase the risk of however small a degree. There would be a little point in enacting that no one should breach the defences against a flood, and at the same time excusing anyone who did it innocently.”

Another important case in this respect would be that of Lockyer v. Gibb. In this case, the Divisional Court held that being “in possession of a drug” contrary to Regulation 9 of the Dangerous Drugs (No. 2) Regulations, 1964 is an absolute offence. Although it must be proved that the accused knew that he had the article which turned out to be a drug, it need not be shown that he knew what the article was. Lord Parker, C.J. said that the regulation was a public welfare provision. If one considered the mischief aimed at alone, there was every reason for treating a provision such as this as a provision imposing absolute liability.

There have been important landmark cases on this in India as well. A fine example was the case of State of Maharashtra v. M.H. George. In this case, the respondent left Zurich on November 27, 1962, and landed at Santa Cruz Airport. He did not get out of the plane, and infact, on being searched, was found to have been carrying Gold slabs. Till November 24th, there was a general permission for a person to bring or send Gold into India if it was on through transit. But, after 24th November, a condition was imposed. When the respondent had boarded the plane at Zurich, he could not have known of the condition. He was prosecuted for having violated Section 8(1) of the Foreign Exchange Regulation Act, 1947, and the question was whether mens rea of the respondent-accused could be established. The majority held that :-

“On the question whether mens rea – in the sense of actual knowledge that the act done by the accused was contrary to the law – is requisite in respect of a contravention of Section 8(1) starting with an initial presumption in favour of the need for mens rea, we have to ascertain whether the presumption is overborne by the language of the enactment, read in the light of the objects and purposes of the Act, and particularly whether the enforcement of the law and the attainment of its purpose would not be rendered futile in the event of such an ingredient being considered necessary. Where the statute does not contain the word ‘knowingly’, the first thing to do is to examine the statute to see whether the ordinary presumption that mens rea is required applies or not. When one turns to Section 8(1) in the present context, one reaches the conclusion that there is no scope for the invocation of the rule of mens rea. It lays an absolute embargo upon persons who, without satisfying the condition bring or send into India any Gold, the absoluteness being emphasized by Section 24(1) of the Act, which throws on the accused the burden of proving that he had the requisite permission. In our opinion, the very object and purpose of the Act and its effectiveness as an instrument for the prevention of smuggling would be entirely frustrated if a condition were to be read into Section 8(1) of the Act qualifying the plain words of the enactment, that the accused should be proved to have knowledge that he was contravening the law before he could be held to have contravened the provision.”

Another very important case in relating to this exception to the rule of mens rea is that of Ranjit D. Udeshi v. State of Maharashtra. In this case, even a provision of Indian Penal Code, 1860 was held to be not requiring mens rea. The Supreme Court had held that :-

“We do not accept the argument that the prosecution must prove that the person who sells or keeps for sale any obscene object knows that it is obscene before he can be adjudged guily. The first sub-section of Section 292 of IPC does not make knowledge of obscenity an ingredient of the offence. The prosecution need not prove something which the law does not burden it with. If knowledge were made a part of the guilty act (actus reus), and required the prosecution to prove it, it would place an almost impenetrable defence in the hands of offenders. It is argued that the number of books these days is so large and their contents so varied that the question whether there is mens rea or not must be based on definite knowledge of the existence of obscenity. We can only interpret the law as we find it and if any exception is to be made, it is for Parliament to enact a law. As we have pointed out, the difficulty, of obtaining legal evidence of the offender’s knowledge of the obscenity of the book, etc. has made the liability strict. Under our law, absence of such knowledge may be taken in mitigation but, it does not take the case out of the sub-section.”

These were some important examples where the exception to the presumption requiring mens rea has been applied. In these cases, punishment was given for statutory offences, without mens rea on the part of the accused. This generally does happen in such offences, due to them being linked with public welfare and national interest. But, in certain other cases, the element of mens rea is somehow or the other incorporated into the definition of the statutory offences, thereby helping out the accused.

Presumption used in Statutory Offences – an exception to the exception
In spite of the rule being developed that the presumption requiring mens rea will not be used in cases of Statutory Offences, there have been situations where it has been used. One of the best and earliest examples of this is the case of Sherras v. De Rutzen. In this case, the defendant was convicted of selling alcohol to a police officer while on duty under Section 16(2) of Licensing Act 1872. It was customary for police officers to wear an armlet while on duty but this constable had removed his. The appellant therefore believed that he was off duty. The statute was silent as to the question of whether knowledge was required for the offence. The appellant was convicted and appealed contending that knowledge that the officer was on duty was a requirement of the offence. The appeal was allowed and his conviction was quashed after the court applied the presumption requiring mens rea in this Statutory Offence. Wright, J. held that :-

“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. It is plain that if guilty knowledge is not necessary, no care on the part of the publican could save him from a conviction under Section 16(2), since it would be as easy for the constable to deny that he was on duty when asked, or to produce a forged permission from his superior officer, as to remove his armlet before entering the public house. I am, therefore, of opinion that this conviction ought to be quashed.”

Then came the landmark case of Lim Chin Aik v. R. Here, Lord Evershed held that the accused could not be guilty of entering and remaining in singapore contrary to an order, prohibiting him from doing so and made under the Singapore Immigration Ordinance of 1959, when that order had not been brought to his attention. Imposing absolute liability on a prohibited person would not have ensured observance of the order since he could not have complied with it if he did not know of it and no practicable means was provided by the Ordinance which would ascertain that he had become a prohibited person.

In another case, i.e., R v. Curr, the facts were that under Section 9(b) of the Family Allowances Act, 1965 (which replaced Section 9(b) of the Family Allowances Act, 1945), it is an offence to obtain or receive “any sum as on account of an allowance, either as in the defendant’s own right or as on behalf of another, knowing that it was not properly payable, or not properly receivable by him or her. It was held that a trafficker in family allowances, who was making 800% interest a year on his dealings, and who had a number of women agents, could not be convicted of soliciting, or conspiring with them to commit an offence under Section 9(b) unless it was proved that the agents knew that the allowances were not properly receivable by them. The Crown argued that an agent must be taken to know the law and hence, that an allowance was not properly receivable by her. But, the court replied that the offence created by the statute was not an absolute one, that there might be circumstances in which receipt of another person’s allowance would be lawful, and that knowledge of the wrongfulness of the transaction must therefore be proved.

Hence, it can be seen that even though a rule of not using the presumption in Statutory Offences has developed, the presumption is still used when the courts feel fit or necessary for it to be used, in order to maintain justice.

To conclude, it can be said that the rules in courts regarding where and how to use the presumption requiring mens rea have been developing since quite a long time. In fact, courts have formed their own rules regarding application of the presumption in normal cases, statutory offences, and even on when not to use the presumption in statutory offences. But, still, at times, conflicts of thoughts do occur on whether to apply it or not. In such a situation, it would be pretty appropriate to cite a judgment of the Supreme Court regarding the implied exclusion of mens rea in Section 7 of the Essential Commodities Act, 1955, in the case of Nathulal v. State of Madhya Pradesh. The court had said that :-

“Mens rea is an essential ingredient of a criminal offence unless the statute expressly or by necessary implication excludes it. The mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil is by itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of an offence. Mens rea by necessary implication may be excluded from a statute only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated.”

Also, in determining whether a statutory provision does or does not create an offence of strict liability, the following considerations seem to be relevant, as given in the judgment of (M.H. George’s Case) :-
1. Phraseology of the statutory provision creating an offence of strict liability, particularly expressions indicating or excluding the mental element required.

2. Object of the Statute

3. Nature of public purpose purportedly preserved by the statute

4. Nature of the mischief at which the provision or statute is aimed, and whether the imposition of strict liability will tend to suppress the mischief, although strict liability should not be inferred simply because the offence is described as a grave social evil.

Hence, in spite of the developed rules regarding the application of the presumption, it still depends on the facts of the case as well as the type of statutory offence whether the presumption will be applied or not, and the courts will still keep developing new rules to decide the same.
***********************
# Section 2(n)
# Report of the Committee on the Prevention of Corruption (1964), p 53
# Freidmann, Law in a Changing Society, 2nd Edition, p 202
# Glanville Williams, Textbook of Criminal Law, 2nd Edition, Stevens & Sons, 1983, p 30
# supra
# P.ST.J. Langan, Maxwell on The Interpretation of Statutes, 12th Edition 16th Impression (2008), LexisNexis Butterworths India, p. 123
# (1946)175 L.T. 306
# [1910] 2 K.B. 471
# Dean Roscoe Pound, The Spirit of the Common Law, p. 52
# [1951] 2 K.B. 135
# [1958] 1 W.L.R. 522
# [1967] 2 Q.B. 243
# AIR 1965 SC 722
# AIR 1965 SC 881
# [1895] 1 Q.B. 918
# [1963] A.C. 160
# [1967] 2 Q.B. 944
# AIR 1966 SC 43
# State of Maharashtra v. M.H. George AIR 1965 SC 722

The  author can be reached at: shashankshekhar333@legalserviceindia.com

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