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Report No. 156

Statutory Offence

10.28. The law relating to mens rea in statutory offences is substantially the same. The basic rule of interpretation of statutory offences is that "unless the statute, either clearly or by necessary implication rules out mens rea as a constituent part of a crime, a defendant should not be found guilty of an offence against the criminal law unless he has a guilty mind". This rule is "of the utmost importance for the protection of liberty of the subject". With this view their Lordships of the Privy Council agreed in Srinivasa Mall v. Emperor, AIR 1947 PC 135. This statement of the law by the Privy Council was approved by the Supreme Court in Ravula Hariprasada Rao v. State, AIR 1951 SC 204.

Though it is true that actus non facit reum nisi mens sit rea is a cardinal doctrine of criminal law the Legislature can create an offence which consists solely in doing an act, whatever the intention or state of mind of the person acting may be. Whether mens rea is a constituent part of a crime or not must in every case depend upon the wording of the particular enactment.

The Privy Council observed in Srinivasa Mall's case that in a limited class of offences which are usually of a comparatively minor character the offence can be committed without a guilty-mind. This class is generally made up of acts mala prohibits and the prohibitions are intended to protect the public or to promote the general welfare, and , therefore, mens rea is not insisted upon as an essential ingredient of the offence unless so declared in express words by the Legislature.

However, so far as the Indian Penal Code is concerned, every offence under it virtually imports the idea of criminal intent or mens rea. Intent denotes all those states of mind which the statute creating the offence in question regards as necessary that an accused must have in order to fix the guilt in him.

Needless to mention that to constitute a crime the act must, except in the case of certain statutory crimes, be accompanied by a criminal intent or by such negligence or indifference to duty or to consequences as is regarded by the law as equivalent to criminal intent. Intention, however, is not capable of positive proof: it can only be implied from overt acts.

As a general rule, every sane man in presumed to intend the necessary or the natural and probable consequences of his acts and this presumption of law will prevail unless from a consideration of all the evidence the Court entertains a reasonable doubt whether such an intention existed. This presumption, however, is not conclusive, nor alone sufficient to Justify a conviction and should be supplemented by other testimony.

10.29. The gravity is such that it cannot be left as theft. Therefore, there is an urgent need to make it a separate offence. Therefore, to avoid doubts, it is recommended to incorporate the Crime of "Hijacking of Vehicles" etc. In the I.P.C.. By making this crime a "Statutory Crime", all the controversies (like whether the said crime can be covered or not in Chapter XVII), will disappear.

10.30. In the light of the above, it is recommended that-

I. Section 362A(1) as mentioned in the I.P.C. (Amendment) Bill, 1978 (clause 149) may be omitted but clause (2) may be inserted in the I.P.C. as under:

"362A. Whoever on board a vehicle in India or a vehicle registered in India unlawfully by force or show of threat or force or by any other form of intimidation seizes such vehicle or exercises control over it or attempts to seize or exercise control over it for the purpose of taking it to a place other than the place of its destination or for any other purpose, is said to commit the offence of hijacking of vehicle and whoever commits such hijacking shall be punished with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.

Explanation.-In this section-

(1) The word "Vehicle" include any vessel but does not include an aircraft."

II. Section 432 of the I.P.C. (Amendment) Bill, 1978 (clause 179) may be dropped.

III. In the above mentioned explanation the words, "helicopter, air glider etc." may be inserted. It may read as under:-

(1) The word "Vehicle" include any vessel including helicopter, or air-glider etc., but does not include an aircraft.

OR

The words "helicopter, air-glider etc." may be inserted in section 2(a) of the Anti-Air Hijacking Act, 1982, as well as in the Suppression of Unlawful Acts Against Safety of Civil Aviation Act, 1982.

IV. If need be, necessary amendment may be carried out in the special legislations, mentioned above.



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