CONCEPT OF CRIME UNIVERSAL CHARACTER OF CRIME The concept of crime is essentially concerned with the conduct of individuals in society. It is as eternal as society and everywhere some human being have fallen outside the pattern of permitted crime. It is best to accept the fact that crime cannot be abolished except in non-existent utopia. Weakness, anger, greed, jealousy, some from the human aberration has come to the surface everywhere and human sanctions have vainly beaten against the irrational, the misguided impulsive and ill conditioned, A code of legal conduct is prescribed by the legislature in order to protect life and property and preservation of human tranquility. Some violations of law are bowed to occur by the members of society. The crime is inevitable and universal phenomenon. According to Durkheirn:
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CONCEPT OF CRIME
UNIVERSAL CHARACTER OF CRIME
The concept of crime is essentially concerned with the conduct of
individuals in society. It is as eternal as society and everywhere some human being
have fallen outside the pattern of permitted crime. It is best to accept the fact that
crime cannot be abolished except in non-existent utopia. Weakness, anger, greed,
jealousy, some from the human aberration has come to the surface everywhere and
human sanctions have vainly beaten against the irrational, the misguided impulsive
and ill conditioned, A code of legal conduct is prescribed by the legislature in
order to protect life and property and preservation of human tranquility. Some
violations of law are bowed to occur by the members of society. The crime is
inevitable and universal phenomenon. According to Durkheirn:
“There is no society that is not confronted with the problem of
criminality. Its form changes the acts thus characterized are not the same
everywhere but everywhere and always, there have been men who have behaved
in such a way as to draw upon themselves penal repression ------- no doubt it is
possible that crime itself will have abnormal forms as e.g. when its rate is
unusually high this excess is indeed undoubtedly, morbid in nature. What is
normal, simply is the existence of criminality, provided that it attains and does not
exceed for each social type, a certain level ------- to classify crime among the
phenomenon of normal sociology is not say merely that it is inevitable although
regrettable phenomenon, due to incorrigible wickedness of men, it is to affirm that
it is factor in public health, an integral of all healthy societies.”1
The reality of our “brave new world” cannot be ignored, where
opportunities for crime abound and impunity is assured at a time when humanity,
having lost its moorings, is still grouping for new methods of social control. Even
a society, according to Durkheim possessing angelic qualities would not be free
from some violation of the norms of that society which may be made
unconsciously or consciously.
S.Venugopai Rao, former Director of the Institute of Criminology
and Forensic Science, gave a similar view when he says, “when it is difficult to
define crime or explain it coherently, it is equally difficult to find ways and mean
of controlling it when criminologists make revolutionary suggestions to eliminate
the prisons and reorient the concept of punishment, they are nearly expressing
their continuous search of the ideal.”2
CONCEPT OF CRIME
Concept:- Crime has been with us in varying degrees since time immemorial. It is
a legal concept and has a sanction of law and is also known as a living concept.
The changing concept of crime is dependent upon the social evolution of the
human beings all ones in the world. What is a crime in one country may not be a
crime in another. The microbe of crime seems to flourish as much as in the culture
medium of poverty as of prosperity and also in all parts of our planet.
Sir Leon Radzinowicz, Director of Institute of Criminology,
Cambridge observed “No national characteristics, on political regime, no system
of social welfare or criminal law of police or justice, of punishment or treatment
has made any country exempt from crime in the modem world and scarcely any
can claim to have saved its relentless increase.3
DEFINITION OF CRIME
Crime is a legal concept and has a sanction of law can not be
disputed in a democratic society. Many attempts have been made to define crime,
but it is not possible to discover the most scientific definition of crime. Many
attempts have been made by Rossi, Kenny, Russel, Blackstone, Ramangnosi and
several others, as: According to the old Utilitarian School the crime was “an act
which it is deemed necessary to forbid because of the harm which it produces or
tends to produce” or merely “an act forbidden by law”, or else “some act which is
detrimental to the public good” or merely, “an act forbidden by law.”
Sir William Blackstone 6 attempted to define at two different places
in his work. At one place, he says that crime is “an act committed in violation of
‘public law’ forbidding or commanding it,”
The ‘Public Law’ has several accepted meanings. Austin takes
public law as identical with Constitutional Law. In this sense, definition covers
only political offences, which are only a small portion of the whole field of crime,
If we were to follow Austin and interpret the definition given by Blackstone as
violation of Constitutional Law,7 i.e. Guarantee of one’s life, liberty and property,
the definition of crime would remain too narrow.
The Germans on the other hand, interpret, ‘Public Law’ to mean
both constitutional and criminal law. In this sense definition given by Blackstone
ceases to define because, we shall be using criminal law in defining a crime.
Others take positive law or municipal law, which would mean all laws made by
the state. In this sense, definition given by Blackstone becomes too wide; crime
would include every legal wrong or violation of law. So, definition given by
Biackstone is not satisfactory.
In second definition, Blackstone defines a crime as,
“A violation of the public rights and duties due to the whole
community considered as community.”8 This definition is slightly altered by
learned editor of Blackstone, Sergeant Stephen, who expressed it thus,
“A crime is a violation of a right, considered in reference to the evil
tendency of such violation as regards the community at large.”
It introduces a new error, namely, it limits to violation of rights only,
whereas Blackstone applied it to violation of both right and duty.
Ramangnosi, a distinguished Italian writer stated that crime is the
“voluntary act of a person of sound mind, harmful to other and the same time
unjust.”
Similarly Rossi, the founder of modern French school maintains that,
“the only thing which the social power can regard as crime is the violation of such
duties towards society and individuals as contribute to the maintenance of the
social order and are capable of absolute legal enforcement.”9
According to a standard French work on criminal law, “every
disturbance inflicted upon the social order is a moral crime, since such disturbance
is the violation of a duty — that of man to society. Hence, the acts with which
primitive justice has to deal with are of two kinds; firstly, those which bear the
imprint of an intrinsic immorality, and; secondly, those which are intrinsically free
from immorality, but assume an immoral character because involving a breach of
duty. In two cases social crime exists.”10
Tappan’s definition of crime as an international act or omission in
violation of criminal law needs explanation. The intention can be said to be guilty
when a man desires to bring about an act which the society or state feels to be
destructive of its own interest or to be dangerous for its stability, safety and
comfort or to be harmful to its members and which is considered to be breach of
duty to the public as a whole for which the offender is punished by the society or
the state. So, it cannot be said that, mens rea or a guilty intention means
knowledge, on the part of the accused that he is breaking law. It is clear from the
definition that intention is an essential ingredient of a crime. The intention is to be
gathered from all the circumstances appearing in the evidence. The intention is to
be inferred from motive of the accused, the nature of the instrument of attack, the
time and place of attack, the position and condition of the victim, number of
injuries inflicted, the force used, previous enmity, relationship of the accused with
the victim, premeditation, nature of attack, opportunity to inflict injuries and
opportunity to aim a particular blow act.”11
Roman jurists called crimes ‘Delicta Publica’ and the criminal trials
‘Judicia Publica’. Some jurists define crime according to the interference by the
state in such acts. In civil acts the State does not interfere until actual wrong has
been committed. In criminal matters the state maintains an elaborate police staff to
prevent offences and if one is committed an action may be instituted by the state
without the co operation of the party injured. To define crime in this way is only to
bring out the contract between civil and criminal wrongs, which can not be the
basis of a definition for two reasons; first, because civil proceedings are often
taken to obtain injunction against some anticipated wrong which has not yet been
committed while criminal acts are so trivial that the police do not interfere before
hand to prevent; second, there are some crimes for which a prosecution can not be
initiated by any private person without permission from the state, for example,
printing or publishing, demoralizing indecent details of judicial proceedings.
According to Austin crime is “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.”12
The definition is not of substance but of procedure only. Moreover,
under Indian Penal Code, 1860, there are several offences, which cannot be
pursued except by the injured party.
Professor Kenny modified Austin’s definition and defines crime to
be, “Wrongs whose sanctions is punitive and is in no way remissible by any
private person, but is remissible by the Crown alone, if remissible at all”.13
Professor Winfield points out that the word ‘Sanction’ used in the
definition must mean ‘Punishment’ and the word ‘Remissible’ must refer to
‘Pardon’ by the Crown and observes that it is on the word ‘Remissible’ that the
definition breaks down, for the only way by which the crown can remit a
punishment as by pardon.
Under the English Common Law, crimes, which are pardonable, are
only those, which are against the public laws and statutes of the realm. The
definition falls when it is applied to our own law because there are many offenses
under Indian Penal Code 1860 which are compoundable without even the
intervention of the court, where the punishment can be remitted by the private
individuals. Therefore, this definition of Kenny also breaks down.
In recent edition of Kenny, Mr. J.W.Cecil has given the following
description of a crime, “It is broadly accurate description to say that nearly every
instance of crime presents all the three following characteristics: -
(i) That it is harm, brought about by human conduct, which the sovereign
power in state desired to prevent.
(ii) That among the measure of prevention selected is the threat of
punishment.
(iii) That legal proceedings of a special kind are employed to decide whether
the person accused did, in fact cause the harm and is according to the
law to be held legally punishable for doing so.”
In British India, where the whole criminal law is codified, crime
means an act punishable by the Indian Penal Code, 1860 or other penal statutes.
Miller defines crime,
“Crime be the commission or omission of an act which the law
forbids or commands under the pain of punishment to be imposed by the state by a
proceeding in its own name.”
Similarly Professor Keeton says, “A crime today would seem to be
undesirable act which the state funds it most convenient to correct by the
institution of proceedings for the infliction of penalty, instead of leaving the
remedy to the discretion of some injured person.” In fact “there is no satisfactory
definition of crime which will embrace the many acts and omissions which are
criminal and which will at the same time exclude all those acts and omissions
which are not. Ordinarily a crime is a wrong which effects the security, well being
of the public generally so that the public has an interest in its suppression. A crime
is frequently a moral in that it amounts to conduct which is inimical to the general
moral source of the community.”14
Sir, Walter Scout says,” Treason arises from mistaken virtue, and
therefore, however, highly criminal cannot be considered disgraceful. A view,
which has been, required legislative approval. Again mere omission to keep
highway in repair shocks no body, yet it is a crime. On the other hand many
grossly cruel and fraudulent breaches of trust are merely civil wrongs e.g. A man
who stands by the river and watches a child drowning. He is a known swimmer,
but does not plunge into river to save the child, He may be guilty of committing a
grossly wicked, immoral act which may arouse universal indignation but he will
not be guilty of committing a crime not even a civil wrong.”15
Under section 40 of the Indian Penal Code, 1860, the word,
‘offence’ denoted a thing made punishable by the Code.
According to Professor Goodhart, “Crime is a serious anti social
action to which the state reacts consciously by inflicting pain.”
Russel says, “Crime is the result of human conduct which the penal
policy of the state seek to prevent.”
Dr. Wechler has said thus,” The purposes of criminal law are to
express a social condemnation of forbidden conduct.”
Firstly, there are offences in respect of which mens rea is
undoubtedly required.
Secondly, there are offences which, though requiring mens rea
possess a special character of their own.
Thirdly, there are offences, which can with a fair measure of
accuracy, be described as offences of strict liability and,
Fourthly, there are acts in respect of which their moral culpability is
a matter of controversy.
The traditional concept of crime is different from the new concept of
social and economic crimes. The traditional concept in criminal law is that no
crime can be committed without a guilty mind, while the requirement of mens rea
in case of social and economic crimes may be excluded either expressly or by
necessary implication.
According to Durkheim, “Crime is to be found in all known
societies. Because of this it seems difficult to regard criminal behaviours in the
general sense as being anything abnormal.”
According to Elener Huber Johnson, “Crime is an act which the
group regards as sufficiently menacing to its fundamental interests, to justify
formed reaction to restrain the violation.”
Aristotle regarded, “Crime as one of the factors of the cycle of
change.”18
Refeale Garofals, formulated his theory of ‘natural crime’.
MENTAL ELEMENT IN CRIME -
“Actus non facit reum nisi mens sit rea” is a well maxim of English
Criminal Law, which means that act itself does not make a man guilty unless his
intentions were so, The maxim is generally supposed to mean that there cannot be
such a thing as legal guilt when there is no moral guilt.
In Criminal Law, there are two essential elements necessary to
constitute a crime, namely
(a) the physical element i.e. actus reus.
(b) mental element i.e. mens reus.
The physical element that constitutes a crime is obvious, because it
is externally manifested by the wrongful act committed by the accused. But the
wrongful act did by the accused in all cases in not punished.
What is the true meaning of mens rea has exercised the minds of the
jurists for a very long time. Stephen says that this expression is meaningless. Dr.
Stallybrass observes: “It is not easy to arrive at a true meaning of mens rea at the
present day.”
Justice Stephen said; “Though this phrase is in common use, I think
it most unfortunate, and not only likely to mislead, but actually misleading, on the
following grounds; it naturally suggests that a part from all particular definitions
of crimes, Such a thing exists as a mens rea or ‘guilty mind’, which is always
expressly or by implication involved in every definition. This is obviously not the
truth, for the mental elements of different crimes differ widely. Mens rea means,
in the case of murder, malice aforethought; in the case of theft an intention to
steal; in case of rape, an intention to have forcible convection with a woman
without her consent. So, it appears confusion to call so many dissimilar states of
mind by one name. It seems contradictory indeed to describe a mere absence of
mind as a mens rea or guilty mind. To non-legal mind, it suggests that by the law
of England no act is a crime which is done from laudable motive, in other words
that immorality is essential to crime”.
“There can be no crime large or small without an evil mind”, says
Bishop,’ “It is therefore a principle of our legal system as probably it is of every
other, that the essence of an offence is a wrongful intent without which it cannot
exist”. The original source of this maxim, actus non facit reurn mens sit rea,
According to Coke in his 3 Institute 20, where it appears in the
following form,
“Reum Linguam Non Facit N/SI Mens Sit Rea”.
Coke’s maxim was repeated in several English decisions.
Pollock and Maitland observed: “Law in its earliest days tries to
make men answer for all the ills of an obvious kind that their deeds bring upon
their fellows”.
Until 12th Century although the modem notion of mens rea was non-
existent, but criminal intent was not entirely disregarded in some offenses where it
was taken into account in awarding punishment.
In 13th century, Roman law and its conceptions of Dolus and Culpa
influenced the English law, common law, which emphasized moral guilt, was also
influencing the English Courts.
In 14th & 15th centuries the notion that mens rea is necessary to
constitute a crime was will established.
During 16th Century, this law was settled that if there is criminal
intent, which is unaccompanied by an act, it will not be punishable.
By the second half of the 17 century, it was firmly established that to
constitute a crime, an evil intent was a necessary as the act itself.
EXCEPTION TO MENS REA
Professor Kenny observes that in statutory crimes it is usually not
necessary to establish more than that the accused committed the act, which was
forbidden by the statute under which he is charged. Such crimes, better known as
crimes of strict liability, are increasing both in number and importance in modem
times. He gives three kinds of cases where the legislature tends to create offences
where no mens rea is to be proved, they are
(a) where the penalty incurred is not great.
(b) The damage caused to the public by the offence is in comparison with the
penalty is very great
(c) The offence is such that there would usually be peculiar difficulty in
obtaining adequate evidence of mens rea, if that degree of guilt was to be
required. The master servant liability may be added for the acts of his
servants e.g. in nuisance and libel cases.
REFERENCES
1. Emile Drukheim; Crime As a Normal Phenomenon---------
2. Venugopal Rao, A Facets of Crime in India 1967 at P.18.
3. Quoted from Mohmood Bid Muhammad Article “Planning and Research for Crime Prevention” Social Defence Journal XII, no.47, Jan.1966 at P.107.
4. Bentham “Traite de legislation Pepnale”
5. Beccaria “Dei dellitir della pene”
6. Commentaries on the law of England. Vol. IV. P.15.
7. Art.21&23.
8. Blackstone, “Commentaries on the law of England. Vol. TV,’
9. Ramagnosi, “Genezi del diritt o penale” 54 et. Seq.
10. Chjauvean and Helia, “Theorie du Code Penal.”
11. Shiv Kumar, Delhi Law Review, Doctrine of Mens Rea, Vol. 3, 1974,
P.102.
12. Jurispridence, Lecture XXVII.
13. Prof. Kenny, Articles of Criminal Law.
14. Halsbury’s laws of England, 4 ed. Vol. II para 1.
15. R Vs Russel (1933), R Vs white (1871), 1 CCR 311.
16. Bonoger “Introduction to Criminology”.
17. Elemer Hubert Johnson: Crime Correction & Society, p. 1.
18. William Clifford-An Introduction to African Criminology.
19. Bishop, Criminal Law (9th Ed.), 287.
20. IN St. Augustine’s Sermons no. 118.C.2.
21. See R.C.Nigam…
CHAPTER-II
HISTORICAL
BACKGROUND OF
CRIME AND
PUNISHMENT
HISTORICAL BACKGROUND OF CRIME
AND PUNISHMENT
HINDU ERA
Kautiiya1 put the Principals of punishment well and he says that
punishment, if too severe, alarm men, if too mild, it frustrates itself. Punishment,
properly determined and awarded, makes the subjects conform to Dharrna (Right),
Artha (wealth) and Karma (desire). When improperly awarded due to ignorance,
under the influence of lust and anger, it enrages even hermits and (religious)
mendicants, not to speak of householders, Punishment not awarded would verily
foster the regime of the fish i.e. in the absence of the up holder of law the strong
would swallow up the weak. Protected by up older they would prosper.
A good summing up of the objects of punishment as conceived in
the Hindu Period is found in a recent study by M.Dutta2 where he says “If we
analyse the implied and explicit purpose of punishment, we find that punishment
was conceived, first, as a deterrent measures calculated to strike fear into the
hearts of the criminal minded and to check their immoral and anti-social passions.
This purpose was served particularly by disproportionately severe punishment and
by ‘branding’, ‘parading’ and ‘publicising’ punishment. The second object was the
prevention of the possibility of the culprits repeating their crime. So, the culprit
was imprisoned, fettered, killed or exiled. Retribution may be said to be the third
motive of punishment in two different senses; Retaliation and making the wrong
doer suffer the fruits of his own Karma. The first is particularly noticed in the
mutilation of that very limb by which the wrong was done (e.g. cutting off fingers
or hand of a thief, a tongue of a defamer). Punishments, fourthly, are conceived to
be an educative & therefore, a reformative process also. Sukra points out that
consistent with the Vedic teaching of non-injury to life, a culprit should be
educated (Siksayet) & made to work, He takes a very modem socio psycho logical
view when he says;
“Such persons were corrupted by bad company. The kind should
punish them and always educate them back on the right path. But punishment was
thought be, not only reformatory, but also purificatory in a moral sense. This is
more evident in the fact that punishment also included in different forms of
repentance, confession, prayer, penitential starvation and long periods of
penance.”
CLASSIFICATION OF PUINISHMENT
Dr. P.K.Sen.3 has elaborately explained the classification of
punishment in Hindu Law
“The chapter headed by Dandhabhedah deals with the usual four
fold classification based on the text of Brhaspati: \ Dhig danda, Dhana and Vadha