mukesh gupta (advocate) 25 February 2012

Strict liability

THE IPC, for every offence prescribes different kind of mens rea. the common law principle of mens rea is not applicable. Ther are certain offences like kidnapping, rape, waging war, selling obscene books etc., where the language of section do not requires any particular kind of mens rea. which of the following is correct:-

1} that mens rea is immaterial in such cases and even if accused is innocent and done the act under misconception or otherwise without evil motive. it is a case of strict liability

2} that the prosecution is not bound to prove the existance of guilty mind of accused, the onus to prove absence of guilty mind is upon accused, and only when the accused discharges his onus, the prosecusion is under onus to prove mens rea.

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Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com)) 25 February 2012

The first is correct with respect to strict liability or 'no fault liability' offences. It has to be understood in historical retrospect - Mens Rea was considered to be an essential part of an offence because equity courts (which mitigated the rigours of common law) emphasised that actus facit reum nisi mens sit rea. It is only the offences committed with necessary mental depravitiy that cause societal alarm - and disturb societal equilibrium. Things done without mens rea - are exemplified in chapter relating to general exceptions, where the society takes an exception to the wrong as it does not cause societal alarm. for eg : if an insane man does something - you are likely to laught it off - instead of punishing him. This being the general principle - there are exceptions to it : there are some offences in which the MENS REA Is really tough to prove/ or the objects of the act by get defeated by reading in by necessary implication the requirement of mens rea or where the act as held in R.v Prince is a mahim in se (moral wrong + legal wrong) rather than mahim prohibitum (only legal wrong) in the last case the guiltiness is assumed and not required to be proved. A classic example is the law relating to kidnapping. In such cases the accused is not even allowed to prove lack of intention or his lack of knowledge.

In India Mens Rea is not a requirement unless statute expressly requires so or by necessary implication the object of act so demands. For eg : FERA etc. It is in the national interests that there is no insistence on requirement of Mens Rea because these offences affect the socio economic fabric of the country. Insisting on MR would be first of all difficult to prove, secondly : would let many people go off the hook.

This apparently seems unjust and arbitrary in individual cases such as (M.H.George v. State of Maharashtra, 1966) but serves the larger purpose of laws.

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