don't just crack CLAT, come hack CLAT with us.
For both legal GK and legal reasoning, learning some criminal law can be important, because questions are often asked on these concepts. This quick snapshot of criminal law will enable you to learn what you need to know in half an hour. All the best! When you are done reading, try to solve these questions.
What is a crime?
Crime is an unlawful act or omission which shocks the conscience of the society in respect of which legal punishment is inflicted on the person who is in default either by acting or omitting to act. Everything that is declared to be crime by law made by competent authority is crime. A list of such acts declared as crime can be found in IPC.
Criminal law relates to crime and their punishment.
Purpose of criminal law
The purpose of criminal law is to protect persons and property against intentional violence, unintended harm and the protection of property against theft, fraud or damages.
Types of crime
In India, Indian Penal Code (1860) deals with most of the criminal offences. There are also specialised acts like NDPS Act, POTA, Arms Act, SEBI (Insider Trading) Regulations etc.
Basics of Criminal Law
Criminal liability is different from civil liability in the sense that crime is considered to be related to moral turpitude and more blameworthy and harmful for the whole society.
Here are some basic aspects of our legal system which are very important:
• Presumption of innocence
An accused is presumed to be innocent unless the prosecution proves otherwise.
• Standard of proof
The prosecution has to prove its case beyond reasonable doubt. This is different than the standard required in a civil case, where balance of probability is the standard of proof required. The defence lawyer need not prove that his client was innocent, but just show that there is a reasonable doubt that the accused may not be responsible. The recent Ayushi Talwar judgment was heavily criticized because it was believed that there was a reasonable doubt that the judge failed to properly consider.
• Criminal liability
Legal obligation arising out of criminal offences leads to criminal liability. A person who commits a crime incurs such liability.
When does an act constitute a crime?
- Act has to be a voluntary act- Act means a conscious or willful movement. It is only voluntary act that amounts to offence if at all.
- An act per se does not constitute crime. In order to constitute criminal liability, it is not sufficient that there is mens rea or that there is some action; the actus must be reus i.e. the act should be prohibited by law, and there should be means rea or guilty intention behind the act
- Act should result in harm. Exceptions exist: it is not necessary that act should result in harm in case of offences like treason, forgery - these are per se offences.
- Act to be direct cause of harm- Causation. When the causing of harm is a requisite of an offence, then such harm should have a causal effect of the act.
The harm must be a direct result of the act i.e. causa causans - the immediate cause. It is not enough that it may be the proximate cause
Mens Rea + Actus Reus
Mens rea is criminal intention while Actus Reus is the criminal action.
It is important that the criminal act must be accompanied by guilty intent. Without bad intention, there can be no crime even if there is harm caused by an action that fits the description of an offence/crime.
For instance, X as a part of prank on Y, took away Y’s notebook with him to his home with the intention to return it later. Here X cannot be said to have committed theft as there is no guilty intention.
• Criminal Act
The criminal act per se is termed as Actus Reus. Actus reus includes all the acts specified in the rule of law as constituting a forbidden act.
Its basically the whole of crime except the mental element.
• Guilty intention
The term mens rea refers to the volition, which is the motive force behind the criminal act. An act becomes criminal only when it is done with guilty mind.
• However, cases of negligence stand as an exception. A negligent state of mind is a guilty state of mind – as long as the negligence is deliberate or reckless or involves careless disregard for lives or properties of others.
- Negligence is a case of inadvertence. A person is negligent if he fails to exercise such care, skill or foresight as a reasonable man in his situation would exercise.
Example: a doctor forgets to take off a morphin drip inserted into the vein of a patient after he is sufficiently sedated. A doctor knows that such negligence can result in death or paralysis of the patient. Such reckless disregard for the life of the patient is enough to establish guilty state of mind.
A person is generally responsible for his act accompanied by mens rea. However, there are certain exceptions. Accused can use these general defenses to escape liability.
Accident- Nothing is an offence which happens due to accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper caution and care
Mistake of fact- Nothing is an offence which is done by a person who is, or who by reason of mistake of fact and not by reason of a mistake of law in good faith believes himself to be bound or justified in doing such act.
Act of child (tender age)- Nothing is an offence which is done by a child below 7yrs of age. Such a child is excused because he does not have sufficient maturity or understanding to judge the nature and consequences of his act and conduct. Between 7 and 12 years of age culpability depends on whether the child understood the nature and consequences of his action. Above 12 years of age a child is presumed to understand the nature and consequence of his acts.
Insanity- Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act.
However, to be benefited by this defense, it is necessary that the person is unable to understand the nature and consequences of what he is doing.
For instance, X is of unsound mind and is accused of slashing Y’s throat. According to X, he just wanted to play prank with Y, he wanted to hide Y’s head while Y was sleeping and that is why he took it and planned to return Y’s head once he got up. Here X can claim defense of Insanity as he is unable to understand the nature and consequences of his act.
Intoxication- Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or the fact that what he is doing is wrong or contrary to law.
However, the thing that intoxicated him should have been administered to him without his knowledge or against his will.
The person who has voluntarily intoxicated himself cannot take the defense of intoxication for the acts committed in intoxicated state.
For instance, X had a break up, to solace him, X’s friend took him to a bar and got him drunk. While returning from bar, X ran over someone walking on a footpath due to reckless driving. During prosecution X took the defense of Intoxication. However, the defense of intoxication cannot be availed by X as the thing which intoxicated him was not administered to him against his will or without his knowledge.
Private defense- The right of private defense is based on the cardinal principle that it is the primary duty of a man to help himself. Self preservation is the prime instinct of every human being.
- Nothing is an offence which is done in the exercise of the right of private defence
- Every person has the right to protect his own body and the body of other persons against any offence against the human body.
- Every person has the right to protect property of himself or others against any offence falling under the definition of theft, robbery etc.
- Private defense upholds the principle of self preservation. However, to get the benefit of private defense acts done in private defense should be proportionate to the harm faced.
- For instance, X showed a knife to Y and asked Y to handover all the valuables he is having to X. Y took out a revolver from his pocket, after seeing the knife, and Y started running away. In spite of that X fired from the revolver, hitting Y on his back which caused his death.
Here the force used by X on pretext of self defense was not proportionate to the threat possessed by Y. Hence, he cannot claim the benefit under the right of self defense
Other Defences- Necessity, Act done in good faith.
Stages of crime
-The first two stages do not attract criminal liability.
-It is impossible for anyone to be able to look into the brains of criminals and prove the evil intention. Knowing intention of a person accurately is not possible. However, actions of a person, and the context in which the action is taken often clearly indicates the intention of a person.
- There are practical reasons for not punishing preparation of crime.
It is quite possible that the person who originally had the intention to commit an offence, may before actually committing it, give up because of fear or change of heart or any other reason.
Secondly, it is also difficult to state with certainty that the preparation was with the intention of committing the crime.
- An attempt to commit a crime is essentially a positive step towards the commission of the contemplated offence after the preparations are made. An attempt can not be withdrawn. Once an attempt is made, the perpetrator doe not remain in a position to change his mind and go back without committing the crime.
Why is an attempt to commit a crime punishable?
-In attempt to crime, a person is punished for doing something in furtherance of his evil intention and design, for carrying out the contemplated crime. An attempt does not succeed either by chance or due to the faulty designs of the perpetrator, but not for the benefaction of the perpetrator. His mind is guilty and he tried to commit a criminal action, therefore he should be punished.
- An attempt if successful leads to the actual commission of the crime. It is only because of some reason beyond the control of the offender, the offence could not be accomplished. Hence, punishing an accused for the attempt to commit a crime is justified.
For instance, X had a grudge against Y, once he found Y alone, taking benefit of the occasion, X thrashed Y which injured Y. Later on Y died because of the injury. Here X committed a criminal offence of culpable homicide and will be punished for that.
Distinguish criminal attempt and preparation
An attempt is an act which would have led to the actual commission of the crime if not interrupted by some external force or reason beyond the control of the offender. Preparation on the other hand is a step before attempt, a crime is attempted after making all the preparation.
Whether an act amount to mere preparation or an attempt to commit an offence -
There are few tests to determine, whether the act amounts to mere preparation or an attempt to commit a crime.
Proximity- The act or a series of acts, in order to be designated as an attempt to commit an offence, must be sufficiently proximate to the accomplishment of the intended substantive offence
Locus poenitentiae- The doctrine of locus poenitentiae refers to the possibility of a person who, having made preparation to commit an offence, actually backs out of committing it, owing to a change of heart or out of any other fear.
Thus, an act will amount to a mere preparation and not an attempt, if the person, on his own accord, gives up the idea of committing a crime before the criminal act is carried out.
Equivocality test- Equivocality test suggests that an act done towards the commission of the offence would amount to an attempt to commit the offence if, only if, it unequivocally indicates the intention of the doer to accomplish the criminal object
If what is done indicates beyond reasonable doubt that the end is towards which is directed, it is an attempt.
Impossibility- An attempt to commit an offence is doing an act or a series of acts towards the commission of an offence.
-However the question arises that whether there can be an attempt to commit an act which is impossible due to various reasons like legal impossibility (because an act done which the accused think of as crime is not actually a crime), physical impossibility etc.
-The impossibility to do an offence cannot be a defense and a person’s subjective belief to commit a particular crime is sufficient to convict him.
Abetment of an offence and criminal conspiracy forms inchoate crime, in case of inchoate crime a person is punished for the guilty intention.
Abetment of an offence.
- Principals in the first degree- those who actually commit the crime through their own hands or through an innocent agent.
-Principals in the second degree- Who are present actually or constructively at the commission of the crime and extend the aid and assistance for its commission but do not commit the act on their own
-Accessories before the fact- Not present at the scene of occurrence but counsel, procure or command another to commit the crime.
-Accessories after the fact- Knowing that a person has committed an offence knowingly receive, relieve, comfort, harbour or assist him from escaping from the clutches of law.
- Abetment by instigation- To instigate means to provoke, incite, urge on or bring about by persuasion to do anything. Instigation can be conduct also. There needs to be a close causal connection between instigation and the act committed. A person is said to instigate another when he actively suggests, stimulates, supports, hints and insinuates the commission of the act.
Passive or unresponsive approval has been held to be instigation in cases like sati where self-immolation by the widow is applauded by the other members of the family.
- Abetment by conspiracy- The distinction between an offence of abetment by conspiracy and the offence of criminal conspiracy is that in the former, mere agreement is not enough. Ac act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for. The persons who are initially guilty of conspiracy to commit an offence become guilty of abetting the offence as soon as an act or illegal omission takes place in pursuance of the conspiracy.
-Abetment by intentional aiding-
Mere presence of a person at the commission of the crime does not amount to intentional aid unless it is shown that he through his presence intended to have that effect.
-Abetment by illegal omission- When a person is legally bound to do a thing but deliberately refrains from doing that, then the person will be liable for abetment by illegal omission.
Sec 120 A of Indian Penal Code defines Criminal Conspiracy as.
1. When two or more persons agree to do
2. Illegal act or an act which is not illegal by illegal means.
If an illegal act is even merely incidental to the object of conspiracy then it can amount to conspiracy.
Main ingredients of criminal conspiracy:
In the case of a conspiracy, the mere agreement is sufficient to impose liability without the requirement that some overt act in furtherance of the conspiracy should have been committed. In case of conspiracy when a legal act is done by illegal means, the requirement of over act which should have been committed by one or more parties to the agreement, apart from the agreement itself.
Nature of conspiracy
Offence of conspiracy is an exception to the general rule where intent alone does not constitute crime.
It is a continuous offence from the time of agreement to the time of termination.