Ist Term Law of Crimes- I LB104 2023 PDF

LL.B. I Term Law of Crimes - I Cases Selected and Edited By Ved Kumari Vandana Anju Vali Tikoo AwektaVerma Vageshwari Deswal Alok Sharma Monica Chaudhary...

LL.B. I Term Law of Crimes - I Cases Selected and Edited By Ved Kumari Vandana Anju Vali Tikoo AwektaVerma Vageshwari Deswal Alok Sharma Monica Chaudhary Megh Raj Krishna Murari Yadav Apeksha Kumari FACULTY OF LAW UNIVERSITY OF DELHI, DELHI-110007 January, 2023 For private use only in the course of instruction  Rubric for Theory Exam Papers: 'All the theory papers, except for CLE subjects*, for LL.B. semester exams carry 100 marks each, for which the University of Delhi conducts an end semester descriptive exam of 3 hours duration. A typical theory question paper contains 8 questions printed both in English and Hindi languages. The student is required to answer 5 out of 8 questions. Each question carries equal marks, that is 20 marks each. Hence the maximum marks for each paper is 100. A student has to secure a minimum of 45 marks out of 100 to pass a paper. Answers may be written either in English or in Hindi but the same medium should be used throughout the paper.' ***************************************************************  Course Wise Content Details for LL.B. Programme: Semester - First Course Name- Law of Crimes- I: Indian Penal Code Course Code- LB-CC-104 Credits – 5 Total Classes 60+15 Course Objectives: The primary objectives of this course are:-  To familiarise the students with the key concepts regarding crime and criminal law.  To expose the students to the range of mental states that constitute mens rea essential for committing crime and to teach specific offences under the Indian Penal Code.  To familiarise the students with the concept of criminal liability and the vastness of its horizons.  To keep students abreast of the latest legislative and judicial developments and changes in the field of criminal law. Learning Outcomes 1. The students should be able to identify the concept of criminal liability as distinguished from the civil liability. 2. Identify the elements of crime in given factual situations entailing culpability. 3. Be familiar with the range of Specific Offences (Bodily offences and Property offences) Teaching Methodology: 1. Classroom Teaching( Lecturing/Discussions) 2. Class Presentations Course Content: Classroom Teaching with help of Legislation and Case Material. Prescribed legislation: The Indian Penal Code, 1860 Prescribed Books: 1) K.T. Thomas, M.A. Rashid (Rev.), Ratan Lal & Dhiraj Lal’s The Indian Penal Code, (35th ed., 2017) 2) K.D. Gaur, Criminal Law : Cases and Materials, (8th ed., 2015) 3) R.C. Nigam, Law of Crimes in India (Vol. I) (1965) 4) V.B. Raju, Commentary on Indian Penal Code, 1860 (Vol. I & II) (4th ed., 1982) 5) K.N.C. Pillai & Shabistan Aquil (Rev.), Essays on the Indian Penal Code (The Indian Law Institute, 2005) 6) K. I. Vibhute (Rev.), P.S.A. Pillai’s Criminal Law (13th ed., 2017) 7) Syed Shamsul Huda, The Principles of the Law of Crimes in British India (1902) 8) K.N. Chandrasekharan Pillai, General Principles of Criminal Law (2nd ed., 2011) UNITS Unit 1 : Principle of Mens Rea and Strict Liability 5 Lectures Common Law principle of actus non facit reum, nisi mens sit rea and exceptions to this principle - strict liability offences Nature of crime Elements of crime 1. State of Maharashtra v. Mayer Hans George, (1965) 1 SCR 123 1 AIR 1965 SC 722 2. State of M.P. v. Narayan Singh, (1989) 3 SCC 596 22 Unit 2 : (a) Culpable Homicide and Murder 16 Lectures (Sections 299-302, 304 read with sections 8-11, 21, 32, 33, 39, 52) Offences of culpable homicide amounting and not amounting to murder distinguished. Culpable homicide of first degree provided in clause (a), second degree in clause (b) and third degree in clause (c) of section 299, IPC. Each clause of section 299 contains comparable clauses in section 300. Every murder is culpable homicide but not vice versa. Culpable homicide is the genus and murder is its species. Intention - clause (a) of section 299 and clause (1) of section 300 3. Rawalpenta Venkalu v. State of Hyderabad, AIR 1956 SC 171 29 Mens rea and actus reus-Relationship 4. Palani Goundan v. Emperor, 1919 ILR 547 (Mad) 34 5. In re Thavamani, AIR 1943 Mad 571 40 Cause and effect relationship- The act of the accused must be the causal factor or direct cause of death (read with section 301, IPC) 6. Emperor v. Mushnooru Suryanarayana Murthy 42 (1912) 22 MLJR 333 (Mad.) Comparison of clause (b) of section 299 with clause (3) of section 300 7. Kapur Singh v. State of PEPSU, AIR 1956 SC 654 57 8. Virsa Singh v. State of Punjab, AIR 1958 SC 465 55 9. State of Andhra Pradesh v. R. Punnayya, AIR 1977 SC 45 60 Comparison of clause (c) of section 299 with clause (4) of section 300 Distinction between intention and knowledge and role of knowledge in S.300 secondly and then comparison of clause (c) of section 299 with clause (4) of section 300. 10. Emperor v. Mt. Dhirajia, AIR 1940 All. 486 70 11. Gyarsibai v. The State, AIR 1953 M.B. 61 75 Unit 3 : Specific Exceptions to section 300 2 Lectures General and partial defences distinguished – general defences in Chapter IV, IPC, if applicable in a given case, negate criminality completely. Partial defences such as exceptions to section 300 partly reduce the criminality, not absolving an accused completely. The law, based on sound principle of reason, takes a  lenient view in respect of murders committed on the spur of the moment. Exceptions I to V to section 300 are illustrative of partial defences. (a) Exception I to section 300 12. K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605 79 Reading Katherine O’Donovan,‘Defences for Battered Women Who Kill’, 18 (2) Journal of Law and Society 219 (1991) 88 (b) Exception IV to section 300 13. Ghapoo Yadav v. State of M.P, (2003) 3 SCC 528 96 Unit 4 : Homicide by Rash or Negligent Act not amounting to Culpable Homicide 2 Lectures (Section 304A) Distinction between negligence and rashness as forms of mens rea; mens rea required is criminal negligence (inadvertent negligence) or criminal rashness (advertent negligence) 14. Cherubin Gregory v. State of Bihar, AIR 1964 SC 205 99 15. S.N. Hussain v. State of Andhra Pradesh, AIR 1972 SC 685 102 Unit 5 : General Exceptions -Chapter IV of the Indian Penal Code 5 Lectures General defences in Chapter IV, IPC, if applicable in a given case, negate criminality completely. (a) Private Defence (Sections 96-106, IPC) The right of private defence has come to be recognized by all civilized societies as a preventive and protective right where the state protection is not available; this right is essentially protective and preventive and never punitive. There are limitations on the exercise of this right both in relation to offences against human body and specific offences against property. The extent of this right, against whom it can be exercised, when this right commences and how long it lasts are dealt with elaborately in IPC. 16. State of U.P. v. Ram Swarup (1974) 4 SCC 764 :AIR 1974 SC 1570 106 17. Deo Narain v. State of U.P. (1973) 1 SCC 347: AIR 1973 SC 473 115  18. Kishan v. State of M.P. (1974) 3 SCC 623 : AIR 1974 SC 244 120 19. James Martin v. State of Kerala (2004) 2 SCC 203 123 Unit 6 : Kidnapping and Abduction (sections 359-363 read with sections 18, 82, 83, 90) 4 Lectures Ingredients of the offence of kidnapping from lawful guardianship (section 362); distinction between taking, enticing and allowing a minor to accompany; Kidnapping from lawful guardianship is a strict liability offence (section 363) and distinction between ‘Kidnapping’ and ‘Abduction’. Relevance of age, consent, force, deception and motive. 20. S. Varadarajan v. State of Madras, AIR 1965 SC 942 132 21. Thakorlal D. Vadgama v. State of Gujarat, AIR 1973 SC 2313 138 22. State of Haryana v. Raja Ram, (1973) 1 SCC 544 138 151 Unit 7 : Sexual Offences 8 Lectures The offence of rape (sections 375, 376, 376A-E read with section 90);Section 377 – Unnatural Offences ;Comparison to be made with the definitions in The Protection of Children from Sexual Offences Act, 2012. Section 354 (Assault or criminal force to woman with intent to outrage her modesty), section 354A (Sexual harassment), section 354B (Assault or use of criminal force to woman with intent to disrobe), section 354C (Voyeurism), section 354D (Stalking) and section 509 (Word, gesture or act intended to insult the modesty of a woman). 23. Kanwar Pal Singh Gill v. State (Admn., U.T. Chandigarh) 158 through Secy., (2005) 6 SCC 161 24. Tukaram v. State of Maharashtra, AIR 1979 SC 185 162 Reading: An Open Letter to the Chief Justice of India, (1979) 4 SCC (J) 17 169 25. State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 175 *26. Independent Thought v. Union of India, (2017) 10 SCC 800. *27. Navtej Singh Johar v. Union of India Through Secretary, Ministry of Law and Justice, (2018) 10 SCC 1  Unit 8 : Joint Liability and Group Liability (Section 34, Sections 141, 149 IPC) 6 Lectures Provisions for providing for group liability in crimes including sections 34 and 149 of the IPC are exceptions to the general rule of criminal liability that a man should be held liable for his own criminal acts and not for those of others. These provisions providing for vicarious liability/group liability are intended to deter people from committing offences in groups and to spare the prosecution to prove specific actus reus of each member of the group 28. Suresh v. State of U.P. (2001) 3 SCC 673 191 29. Mizaji v. State of U.P., AIR 1959 SC 572 207 30. Maina Singh v. State of Rajasthan (1976) 2 SCC 827: AIR 1976 215 SC 1084 Unit 9 : Attempt (Sections 511, 307, 309 IPC) 6 Lectures There are four stages in the commission of crime – (i) intention to commit an offence, (ii) preparation, (iii) attempt and (iv) forbidden consequence ensuing from the act of the accused after the stage of preparation is over. An attempt is direct movement towards the commission of an offence after the preparation is made. An accused is liable for attempting to commit an offence even if the forbidden consequence does not ensue for reasons beyond his control and he is to be punished for creating alarm and scare in the society 31. Asgarali Pradhania v. Emperor, AIR 1933 Cal. 893 224 32. Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698 231 33. Om Parkash v. State of Punjab, (1962) 2 SCR 254 : AIR 1961 SC 240 1782 34. State of Maharashtra v. Mohd. Yakub, (1980) 3 SCC 57 247 35. Gian Kaur v. State of Punjab, (1996) 2 SCC 648 257 Unit 10 : Offences of Theft, Extortion, Robbery and Dacoity 6 Lectures (Sections 378, 379, 383, 384, 390 and 391 read with sections 22-25, 27, 29, 30 and 44)  36. Pyare Lal Bhargava v. State of Rajasthan, AIR 1963 SC 1094 272 37. Jadunandan Singh v. Emperor, AIR 1941 Pat. 129 275 38. Sekar v. Arumugham (2000) Cr.L.J. 1552 (Mad.) 278 39. State of Karnataka v. Basavegowda (1997) Cr.L.J. 4386 (Kant.) 282 Unit 11 : Offences of Criminal Misappropriation, Criminal Breach of Trust and Cheating 4 Lectures (Sections 403-405, 415-416 and 420 read with sections 29-30) 40. Jaikrishnadas Manohardas Desai v. State of Bombay, 288 AIR 1960 SC 889 41. Mahadeo Prasad v. State of West Bengal, AIR 1954 SC 724 294 42. Akhil Kishore Ram v. Emperor, AIR 1938 Pat. 185 298 43. Shri Bhagwan S.S.V.V. Maharaj v. State of A.P., AIR 1999 SC 303 2332 Teaching Plan Week 1: to introduce the concept of civil and criminal liability and to discuss the elements of crime; and to discuss strict liability with the help of cases. Week 2: to wind up discussion on elements of crime and start with the discussion on homicide- lawful and unlawful; constructive homicide; and the types of homicide- amounting to murder and not amounting to murder. Week 3: to discuss the concepts of murder and culpable homicide with the help of the ingredients of the sections 299 and 300 of the IPC. Week 4: to discuss the concepts of murder and culpable homicide with the help of the ingredients of the sections 299 and 300 of the IPC- understanding the operation of various sets of corresponding clauses in sections 299 and 300, IPC. To discuss the relevant judicial decisions at the appropriate junctures. Week 5: to discuss the concepts of murder and culpable homicide with the help of the ingredients of sections 299 and 300 of the IPC with the help of the established doctrines of transferred malice and parts of the same transactions along with the cases. Week 6: to discuss the specific exceptions attached to section 300 IPC and the discussion of section 304-A IPC - causation of death by rash or negligent act, along with the cases. Week 7: to discuss the general exceptions in Chapter IV of the IPC and to discuss the exception of private defence in detail with the help of the cases. Week 8: to discuss the offences of kidnapping and abduction along with the cases while drawing out the main differences between these crimes. Week 9: to discuss the sexual offence of rape with the help of the cases and suggested readings while highlighting the recent amendments in the IPC. Also to bring out the difference in approaches of the IPC and POCSO Act. Week 10: to discuss the sexual offences under secs 354, 377 IPC and other recently modified/ inserted sections with the help of the cases and suggested readings while highlighting the recent amendments in the IPC. Week 11: to discuss the doctrine of combination of crimes indicating various types of complicity with crimes and discussing joint liability under section 34, IPC and the judicial decisions. Week 12: to further discuss the doctrine of combination of crimes indicating various types of complicity with crimes and discussing group liability under sections 141 and 149, IPC and the judicial decisions. Week 13: to discuss inchoate liability and the related provisions on attempt in the IPC- sections 511, 307, 308 and 309 while describing the tests on attempt and the judicial decisions. Week 14: to wind up attempts with the discussion on impossible attempts. To start with the discussion on property offences in the IPC. Week 15: to discuss the property offences- theft, extortion, robbery and dacoity under the IPC and the relevant judicial decisions. Week 16: to discuss the property offences- misappropriation, criminal breach of trust and cheating under the IPC and the relevant judicial decisions. Facilitating the achievement of Course Learning Outcomes Unit Course Learning Teaching and Assessment No. Outcomes Learning Tasks Activity 1. Students will learn Class room As given below about civil and lectures + class criminal liability; presentations + mens rea and strict field visit [if liability. any, scheduled for the week] 2. Students will learn Class room As given below about the lectures + class importance of presentations+ gradation of mens field visit [if rea and the any, scheduled differentiation for the week] between the offences of culpable homicide not amounting to murder and murder. 3. Students will learn Class room As given below about the specific lectures + class exceptions to presentations + section 300, IPC. field visit [if any, scheduled for the week] 4. Students will Class room As given below further learn about lectures + class gradation of mens presentations + rea in criminality, field visit [if concept of culpable any, scheduled negligence and for the week] causation of death by doing rash or negligent acts. 5. Students will learn Class room As given below about general lectures + class defensces contained presentations + in the IPC with field visit [if emphasis on the any, scheduled right of private for the week] defence. 6. Students will learn Class room As given below about the bodily lectures + class offences of presentations + Kidnapping and field visit [if Abduction. any, scheduled for the week] 7. Students will learn Class room As given below about various lectures + class sexual offences presentations + with major thrust field visit [if on the offence of any, scheduled rape. They will also for the week] learn about the  sexual offences penalised by the recent 2013 Amendment to Criminal Laws. 8. Students will learn Class room As given below about the doctrines lectures + class of Joint Liability presentations + and Group Liability field visit [if in Criminal Law. any, scheduled for the week] 9. Students will learn Class room As given below about the doctrine lectures + class of inchoate liability presentations+ and the various field visit [if tests on attempt. any, scheduled for the week] 10. Students will learn Class room As given below about the Property lectures + class Offences of theft, presentations + extortion, robbery field visit [if and dacoity. any, scheduled for the week] 11. Students will learn Class room As given below about the Property lectures + class Offences of presentations+ misappropriation, field visit [if criminal breach of any, scheduled trust and cheating. for the week] IMPORTANT NOTE: 1. The topics, cases and suggested readings given above are not exhaustive. The Committee of teachers teaching the Course shall be at liberty to revise the topics/cases/suggested readings. 2. Students are required to study/refer to the legislations as amended from time to time, and consult the latest editions of books. *****  LL.B. I Term Examination, December 2015 Law of Crimes–I : Question paper Attempt any five questions All questions carry equal marks. 1. (a) Explain the rationale behind punishing a person guilty of a strict liability offence in the absence of guilty mind. (b)Raghav Ram, a film actor, was returning from a party past midnight when he dozed off and the car that he was driving ran over two persons sleeping on the pavement killing them and thereafter rammed into a pole. He was jolted out of sleep by the impact of the accident when his car hit the pole. Tests confirmed high dosage of alcohol in his blood. Discuss his liability for the death of those two persons. 2.(a)What are the circumstances wherein right of private defence of body extends to voluntarily causing death? (b)Can a student leader on indefinite fast during a protest be forced-fed in order to save his life? Discuss in the light of relevant case law. 3.(a)A, a police sub-inspector, in exercise of his lawful powers goes to the house of a murder suspect, B, to arrest him. The sub-inspector behaves in an unusually high-handed manner that provokes B. Due to this, B picks up a kitchen knife lying nearby and thrusts it into the abdomen of A resulting in grievous injury and ultimately death of A. During trial B pleads the defence of grave and sudden provocation. Decide. (b)A is attacked by Z, a person of unsound mind, who has a spear in his hand. In order to protect himself, A strikes Z with a stick on his head, resulting in his death. During trial A pleads the right of private defence. Decide, with the help of relevant legislative provision. 4. Reshma, a 16 year old girl, fed up with her step-mother’s ill treatment and her father’s stand of neutrality, writes a letter to her school principal complaining against the atrocities and requesting him to provide her shelter in his house. The principal assures her that he will talk to her parents, but in the meantime, Reshma leaves her house and goes to the principal’s house and begs him to  allow her to stay there and promises to do domestic work in return for the favour. A week later Reshma is recovered from the Principal’s house. He is charged under Section 363 for kidnapping from lawful guardianship. Discuss his liability. Would the position be any different if he had himself brought Reshma to his place, on receiving her letter, in order to save her from the ill-treatment of her step-mother? Decide. 5. Six persons enter a house at night to commit theft. While the others are busy looking for valuables on the ground floor of the house, one of them climbs up to the first floor of the house and finding the maid-servant sleeping alone there rapes her and threatens to kill her if she raises an alarm. Then, he comes down and joins his associates in the process of collecting valuables after which they all leave the house. Discuss the liability of all of them for the offences of theft and rape. 6. (a)What offence, if any, has been committed by X in the following: (i)X finds a gold ring lying on the road. He picks it up and sells it for Rs. 5000. (ii)Y deposited her pearl necklace with X. X substituted the genuine ones with imitation pearls. (b) Write short notes on any two: (i) Stalking (ii) Voyeurism (iii) Disrobing 7. (a) “Dishonest intention is the gist of the offence of theft.” Explain. Also discuss how extortion is different from the crime of theft. (b) “Rape is a question of Law.” Explain the essentials of the crime of rape. How is this law different from the law against sexual assault provided under the POCSO Act? 8. Discuss the liability of X in the following. Attempt any two out of the three. (a) X stabs B who is five year old son of A in his leg due to which there is significant blood loss. Doctors advise blood transfusion. A refuses to get it done since his religious belief doesn’t allow the same. B dies after three days due to extreme blood loss.  (b) X is learning shooting. Despite being cautioned against practicing in crowded places, he fires shots at his dummy target after placing it in a crowded street. A shot from his gun hits a person there causing his death. (c) X and B are sworn enemies. One day, finding B alone, X gives him a deep wound in his chest with the help of a sharp dagger that pierces his heart and causes his death. LL.B. I Term Examination, December 2014 Law of Crimes–I : Question paper Attempt any five questions. All questions carry equal marks. 1. (a) The fundamental principle of criminal liability is that, “there must be wrongful act combined with wrongful intention”. Elaborate. (b) Having taken loan from Areal Bank, A purchased a vehicle. A was to pay regular monthly instalments. Failure to pay two consecutive instalments would result in impounding of vehicle by the Bank. A went abroad and could not pay three instalments. On his return, he found that the vehicle parked in the premises was taken by the Bank through their musclemen, without his consent. What, if any, offence has been committed by the Bank. 2.(a) Arguments between X ((husband) and W (wife) on repayment of loan to the Bank, turned ugly. Husband slapped his wife and not satisfied with this threw a burning stove (kerosene oil) on her. The oil with flame resulted into fire in which the wife was engulfed. Husband tried to dose it off. However, the burn injuries were beyond 70% which resulted into death of the wife four days later in the hospital. Determine the liability of the Husband X in the case. (b) Annoyed due to insufficient dowry brought by X, her mother-in-law and husband deliberately starved and ill treated her by locking in a room. As a result X’s health deteriorated. One day she managed to escape to reach to a hospital where she was admitted. Doctor refused the request of her husband to send her home in such a critical condition. It took more than 10 months for the lady to recover. Discuss the offence the mother-in-law and husband have committed. Give reasons to support your answer. 3.(a) Due to rivalry arising out of landed property between A and B, A caused multiple injuries to B and various parts of body to teach him a lesson. B was admitted to the hospital, where he was treated and discharged. When B was on  his way to recovery, he became negligent about his medicines. He, therefore, developed fever and septic of two wounds. B died a week later. State the liability of A. Cite relevant legal provisions and decided cases. (b) Accused X was running a bus at a high speed on a dusty and damaged road. While negotiating a curve with the same speed, without applying brakes, the bus over turned, killing a pedestrian and injuring some of the passengers. Prosecution is interested to prosecute X under Section 304-A of IPC. Can they do so and will they succeed? Give reasons. 4. (a) Due to breaking of communal riots between community A and B, members of community A caused loot, plunder and fire of the property belonging to members of community B. X, who was a member of community B was also targeted. He tried to remain within closed door, to save himself and his family. However, the mob reached and started knocking at his door. Before the mob could enter, X fired from his licensed revolver and killed a member out of the mob. Mr. X is charged of murder, however he pleads his right of private defence against his charge. Can he do so? Give reasons. (b) Discuss statutory limitations on the exercise of right of private defence as laid down in the Indian Penal Code. 5.(a) Mr. B and Ms. A who were class fellows from class Xth, developed infatuation towards each other. They carried the relationship for 6 long years till the boy did his master’s course and was employed in good multinational. They had promised to marry each other and were firm to do so, knowing fully well they belonged to different castes. On the basis of this promise and long relationship they entered into sexual relationship many a times. However, finally, when boy disclosed it to his parents, they refused to do so on the basis of caste. They threatened the boy of social ostracisation and even death of both of them in case they do the same. Compelled by these reasons, the boy married another girl. A charges the boy B of having committed rape with her. Decide the fate of B. (b) Write short notes on any two of the following: (i) Voluntarily causing grievous hurt by acid attack (ii) Voyeurism (iii) Stalking 6. A young girl was left to live with his maternal grandfather, as the relationship between her mother and father were strained. One day the father (F) visited the  himself where she was kept and took her with him for a picnic. Mother (M) on reaching home (the place where she was living), found that minor daughter has been taken away without her or maternal grandfather’s consent. She files an FIR, where she alleges that her daughter has been kidnapped. Advise her about the success of her case. 7. (a) “Establishment of an overt act is not a requirement of law to allow section 34 to operate in as much as the section gets attracted when a criminal act is done by common intention of all.” Explain. (b) A, B, C, D and E, all members of an unlawful assembly, decided to attack X, who was member of a rival political party. Each one of them was explained that the attack should not exceed to cause the death. While all of them went on one night to attack X, on reaching D and E found that Mr. X is the same person who has deprived them earlier of some rightful claim, hence they decided to take revenge from him(X). While A, B and C attacked X by using hockey sticks, D and E had hidden pistol, they directly shot X dead. Can A, B, C, D and E be held guilty under Section 149 of the Indian Penal Code. Explain your answer. 8. Write notes on the following: (a) Grave and Sudden Provocation (b) Impossible attempts (c) Distinction between kidnapping and abduction  GENERAL INTRODUCTION NATURE AND DEFINITION OF CRIME I. NATURE OF CRIME WHAT IS A CRIME? We must answer this question at the outset. In order to answer this question we must know first, what is law because the two questions are closely inter-related. Traditionally, we know a law to be a command enjoining a course of conduct. The command may be of a sovereign or of political superiors to the political inferiors; or it may be the command of a legally constituted body or a legislation emanating from a duly constituted legislature to all the members of the society. A crime may, therefore, be an act of disobedience to such a law forbidding or commanding it. But then disobedience of all laws may not be a crime, for instance, disobedience of civil laws or laws of inheritance or contracts. Therefore, a crime would mean something more than a mere disobedience to a law, "it means an act which is both forbidden by law and revolting to the moral sentiments of the society." Thus robbery or murder would be a crime, because they are revolting to the moral sentiments of the society, but a disobedience of the revenue laws or the laws of contract would not constitute a crime. Then again, "the moral sentiments of a society" is a flexible term, because they may change, and they do change from time to time with the growth of the public opinion and the social necessities of the times. So also, the moral values of one country may be and often are quite contrary to the moral values of another country. To cite a few instances, heresy was a crime at one time in most of the countries of the world, because in those days it offended the moral sentiments of the society. It was punished with burning. But nobody is punished nowadays for his religious beliefs, not even in a theocratic state. The reason is obvious. Now it does not offend the moral sentiments of the society. Adultery is another such instance. It is a crime punishable under our Penal Code, but it is not so in some of the countries of the West. Then again suttee, i.e., burning of a married woman on the funeral pyre of her deceased husband, was for a long time considered to be a virtue in our own country, but now it is a crime. Similarly, polygamy was not a crime in our country until it was made so by the Hindu Marriage Act, 1955. This Act, it may be stated, does not apply to Mohammedans or Christians. But Christians are forbidden to practise polygamy under their law  R.C Nigam, LAW OF CRIMES IN INDIA25-37(1965)  of marriage, while Mohammedans are yet immune from punishment for polygamy. All these instances go to show that the content of crime changes from time to time in the same country and from country to country at the same time because it is conditioned by the moral value approved of by a particular society in a particular age in a particular country. A crime of yesterday may become a virtue tomorrow and so also a virtue of yesterday may become a crime tomorrow. Such being the content of crime, all attempts made from time to time beginning with Blackstone down to Kenny in modern times to define it have proved abortive. Therefore, the present writer agrees with Russell when he observes that "to define crime is a task which so far has not been satisfactorily accomplished by any writer. In fact, criminal offences are basically the creation of the criminal policy adopted from time to time by those sections of the community who are powerful or astute enough to safeguard their own security and comfort by causing the sovereign power in the state to repress conduct which they feel may endanger their position". But a student embarking on study of principles of criminal law must understand the chief characteristics and the true attributes of a crime. Though a crime, as we have seen, is difficult of a definition in the true sense of the term, a definition of a crime must give us "the whole thing and the sole thing," telling us something that shall be true of every crime and yet not be true of any other conceivable non-criminal breach of law. We cannot produce such a definition of crime as might be flexible enough to be true in all countries, in all ages and in all times. Nevertheless, a crime may be described and its attributes and characteristics be clearly understood. In order to achieve this object, we propose to adopt two ways, namely, first, we shall distinguish crime from civil and moral wrongs, and secondly, we shall critically examine all the definitions constructed by the eminent criminal jurists from time to time. II. DISTINCTION BETWEEN MORAL, CIVIL AND CRIMINAL WRONGS In order to draw a distinction between civil and criminal liability, it becomes necessary to know clearly what is a wrong of which all the three are species. There are certain acts done by us which a large majority of civilised people in the society look upon with disapprobation, because they tend to reduce the sum total of human happiness, to conserve which is the ultimate aim of all laws. Such acts may be called wrongs, for instance, lying, gambling, cheating, stealing, homicide, proxying in the class, gluttony and so on. The evil tendencies and the reflex action in the society of these acts or wrongs, as we have now chosen to call them, differ in degree. Some of them are not considered to be serious enough as to attract law's notice. We only disapprove of them. Such wrongs may be designated as moral wrongs, for instance, lying, overeating or gluttony, disobedience of parents or teachers, and so on. Moral wrongs are restrained and corrected by social laws and laws of religion. There are other wrongs which are serious enough to attract the notice of the law. The reaction in the society is grave enough and is expressed either by infliction of some pain on the wrongdoer or by calling upon him to make good the loss to the wronged person. In other words, law either awards punishment or damages according to the gravity of the wrong done. If the law awards a punishment for the wrong done, we call it a crime; but if the law does not consider it serious enough to award a punishment and allows only indemnification or damages, we call such a wrong as a civil wrong or tort. In order to mark out the distinction between crimes and torts, we have to go deep into the matter and study it rather elaborately. Civil and Criminal Wrongs: We may state, broadly speaking, first, that crimes are graver wrongs than torts. There are three reasons for this distinction between a crime and a tort. First, they constitute greater interference with the happiness of others and affect the well-being not only of the particular individual wronged but of the community as a whole. Secondly, because the impulse to commit them is often very strong and the advantage to be gained from the wrongful act and the facility with which it can be accomplished are often so great and the risk of detection so small that human nature, inclined as it is to take the shortest cut to happiness, is more likely to be tempted, more often than not, to commit such wrongs. A pickpocket, a swindler, a gambler are all instances. Thirdly, ordinarily they are deliberate acts and directed by an evil mind and are hurtful to the society by the bad example they set. Since crimes are graver wrongs, they are singled out for punishment with four-fold objects, namely,of making an example of the criminal, of deterring him from repeating the same act, of reforming him by eradicating the evil, and of satisfying the society’s feeling of vengeance. Civil wrongs, on the other hand, are less serious wrongs, as the effect of such wrongs is supposed to be confined mainly to individuals and does not affect the community at large. Secondly, the accused is treated with greater indulgence than the defendant in civil cases. The procedure and the rules of evidence are modified in order to reduce to a minimum the risk of an innocent person being punished. For example, the accused is not bound to prove anything, nor is he required to make any statement in court, nor is he compellable to answer any question or give an explanation. However, under the Continental Laws an accused can be interrogated. Thirdly, if there is any reasonable doubt regarding the guilt of the accused, the benefit of doubt is always given to the accused. It is said that it is better that ten guilty men should escape rather than an innocent person should suffer. But the defendant in a civil case is not given any such benefit of doubt. Fourthly, crimes and civil injuries are generally dealt with in different tribunals. The former are tried in the criminal courts, while the latter in the civil courts. Fifthly, in case of a civil injury, the object aimed at is to indemnify the individual wronged and to put him as far as practicable in the position he was, before he was wronged. Therefore he can compromise the case, whereas in criminal cases generally the state alone, as the protector of the rights of its subjects, pursues the offender and often does so in spite of the injured party. There are, however, exceptions1o this rule. Lastly, an act in order to be criminal must be done with malice or criminal intent. In other words, there is no crime without an evil intent. Actus non facit reum nisi mens sit rea, which means that the act alone does not make.a man guilty unless his intentions were so. This essential of the crime distinguishes it from civil injuries. Criminal and Moral Wrongs: A criminal wrong may also be distinguished from a moral wrong. It is narrower in extent than a moral wrong. In no age or in any nation an attempt has ever been made to treat every moral wrong as a crime. In a crime an idea of some definite gross undeniable injury to someone is involved. Some definite overt act is necessary, but do we punish a person for ingratitude, hard-heartedness, absence of natural affection, habitual idleness, avarice, sensuality and pride, which are all instances of moral lapses? They might be subject of confession and penance but not criminal proceeding. The criminal law, therefore, has a limited scope. It applies only to definite acts of commission and omission, capable of being distinctly proved. These acts of commission and omission cause definite evils either on definite persons or on the community at large. Within these narrow limits there may be a likeness between criminal law and morality. For instance, offences like murder, rape, arson, robbery, theft and the like are equally abhorred by law and morality. On the other hand, there are many acts which are not at all immoral, nonetheless they are criminal. For example, breaches of statutory regulations and bye laws are classed as criminal offences, although they do not involve the slightest moral blame. So also “the failure to have a proper light on a bicycle or keeping of a pig in a wrong place," or the neglect in breach of a bye-law to cause a child to attend school during the whole of the ordinary school hours; and conversely many acts of great immorality are not criminal offences, as for example, adultery in England, or incest in India. However, whenever law and morals unite in condemning an act, the punishment for the act is enhanced. Stephen on the relationship between criminal law and morality observes: The relation between criminal law and morality is not in all cases the same. The two may harmonise; there may be a conflict between them, or they may be independent. In all common cases they do, and, in my opinion, wherever and so far as it is possible, they ought to harmonise with and support one another. Everything which is regarded as enhancing the moral guilt of a particular offence is recognised as a reason for increasing the severity of the punishment awarded to it. On the other hand, the sentence of the law is to the moral sentiment of the public in relation to any offence what a seal is to hot wax. It converts into a permanent final judgement what might otherwise be a transient sentiment. The mere general suspicion or knowledge that a man has done something dishonest may never be brought to a point, and the disapprobation excited by it may in time pass away, but the fact that he has been convicted and punished as a thief stamps a mark upon him for life. In short, the infliction of punishment by law gives definite expression and a solemn ratification and a justification to the hatred which is excited by the commission of the offence, and which constitutes the ll1oral or popular as distinguished from the conscientious sanction of that part of morality which is also sanctioned by the criminal law. The crill1inal law thus proceeds upon the principle that it is ll1orally right to hate crill1inals, and it confirms and justifies that sentill1ent by inflicting upon criminals punishments which express it. Criminal Law and Ethics: Let us also distinguish criminal law from ethics. Ethics is a study of the supreme good. It deals with absolute ideal, whereas positive morality deals with current public opinion, and law is concerned with social relationship of men rather than with the individual's excellence of character. The distinction between law and morality has been discussed already. We may now bring out the distinction between law and ethics by citing two illustrations. Your neighbour, for instance, is dying of starvation. Your granary is full. Is there any law that requires you to help him out of your plenty? It may be ethically wrong or morally wrong; but not criminally wrong. Then again, you are standing on the bank of a tank. A woman is filling her pitcher. All of a sudden she gets an epileptic fit. You do not try to save her. You may have committed an ethical wrong or a moral wrong, but will you be punished criminally? However, with the growth of the humanitarian ideas, it is hoped that the conception of one's duty to others will gradually expand, and a day might arrive when it may have to conform-to the ideal conduct which the great Persian Poet. Sheikh Saadi, aimed at, viz.: “If you see a blind man proceeding to a well, if you are silent, you commit a crime.” This was what the poet said in the 13th century. But we may have to wait for a few more decades, when we might give a different answer to the question: “Am I my brother's keeper?" Are Crimes and Torts Complementary? In the foregoing, we have drawn a clear distinction between crimes and civil injuries. In spite of those distinctions, however, it should be remembered that crimes and torts are complementary and not exclusive of each other. Criminal wrongs and civil wrongs are thus not sharply separated groups of acts but are often one and the same act as viewed from different standpoint, the difference being not one of nature but only of relation. To ask concerning any occurrence, "is this a crime or a tort?" is, to borrow Sir James Stephen's apt illustration, no wiser than it would be to ask of a man, "Is he a father or a son? For he may be both." In fact, whatever is within the scope of the penal law is crime, whatever is a ground for a claim of damages, as for an injury, is a tort; but there is no reason why the same act should not belong to both classes, arid many acts do. In fact, some torts or civil injuries were erected and are being erected into crimes, whenever the law-making hand comes to regard the civil remedy for them as being inadequate. But we cannot go so far as to agree with Blackstone when he makes a sweeping observation that "universally every crime is a civil injury." This observation of Blackstone is proved incorrect in the following three offences which do not happen to injure any particular individual. First, a man publishes a seditious libel or enlists recruits for the service of some foreign belligerent. In either of these cases an offence against the state has been committed but no injury is caused to any particular individual. Secondly, an intending forgerer, who is found in possession of a block for the purpose of forging a trade mark or engraving a bank-note or for forging a currency note, commits a serious offence but he causes no injury to any individual. Thirdly, there are cases where though a private individual does actually suffer by the offence, yet the sufferer is no other than the actual criminal himself who, of course, cannot claim compensation against himself, for example, in cases of attempted suicide. However, in England as elsewhere the process of turning of private wrongs into public ones is not yet complete, but it is going forward year to year. For instance, the maiming or killings of another man’s cattle were formerly civil wrongs but they were made crimes in the Hanoverian reign. Then again, it was not until 1857 a crime for a trustee to commit a breach of trust. So also, incest was created a crime in 1908. In fact, the categories of crimes are not closed. In our own country, since Independence, many acts have now been enacted into crimes which we could not even have conceived of, for instance, practice of untouchability or forced labour or marrying below a certain age and so on. A socialistic state does conceive of many anti-social behaviours punishable as crimes more frequently. We must remember that crime is a relative concept and a changing one too. Different societies have different views as to what constitutes a criminal act and the conception of a crime may vary with the age, locality and several other facts and circumstances. For example, people were burned for heresy a few centuries ago, but in modern times no civilised nation punishes a man on the ground that he professes a different religious view. Then again, adultery is a crime according to our penal code, while it is a civil wrong according to English law.  CONSTITUENT ELEMENTS OF CRIME ELEMENTS OF A CRIME The two elements of crime are mens rea and actus reus. Apart from these two elements that go to make up a crime, there are two more indispensable elements, namely, first, “a human being under a legal obligation to act in a particular way and a fit subject for the infliction of appropriate punishment,” and secondly, “an injury to another human being or to the society at large.” Thus the four elements that go to constitute a crime are as follows: first, a human being under a legal obligation to act in a particular way and a fit subject for the infliction of appropriate punishment: secondly, an evil intent or mens rea on the part of such human being; thirdly, actus reus, i.e., act committed or omitted in furtherance of such an intent; and fourthly, an injury to another human being or to society at large by such an act. A Human Being: The first element requires that the act should have been done by a human being before it can constitute a crime punishable at law. The human being must be “under a legal obligation to act, and capable of being punished.”. Mens Rea: The second element, which is an important essential of a crime, is mens rea or guilty mind. In the entire field of criminal law there is no important doctrine than that of mens rea. The fundamental principle of English Criminal jurisprudence, to use a maxim which has been familiar to lawyers following the common law for several centuries, is “actus non facit reum nisi mens sit rea”. Mens rea is the state of mind indicating culpability, which is required by statute as an element of a crime. It is commonly taken to mean some blameworthy mental condition, whether constituted by intention or knowledge or otherwise, the absence of which on any particular occasion negatives the intention of a crime. The term ‘mens rea’ has been given to volition, which is the motive force behind the criminal act. It is also one of the essential ingredients of criminal liability. As a general rule every crime requires a mental element, the nature of which will depend upon the definition of the particular crime in question. Even in crimes of strict liability some mental element is required. Expressions  Edited from:R. C. Nigam, LAW OF CRIMES IN INDIA38-43 (1965); V. Suresh and D. Nagasaila (eds.), P.S. ATCHUTHEN PILLAI’S CRIMINAL LAW 42-47(9thedn., 2006) connoting the requirement of a mental element include: ‘with intent’, ‘recklessly’, ‘unlawfully’, ‘maliciously’, ‘unlawfully and maliciously’, ‘wilfully’, ‘knowingly’, ‘knowing or believing’, ‘fraudulently’, ‘dishonestly’, ‘corruptly’, ‘allowing’, and ‘permitting’. Each of these expressions is capable of bearing a meaning, which differs from that ascribed to any other. The meaning of each must be determined in the context in which it appears, and the same expression may bear a different meaning in different contexts. Under the IPC, guilt in respect of almost all offences is fastened either on the ground of intention or knowledge or reason to believe. All the offences under the Code are qualified by one or the other words such as wrongful gain or wrongful loss, dishonestly, fraudulently, reason to believe, criminal knowledge or intention, intentional co-operation, voluntarily, malignantly, wantonly. All these words describe the mental condition required at the time of commission of the offence, in order to constitute an offence. Thus, though the word mens rea as such is nowhere found in the IPC, its essence is reflected in almost all the provisions of the code. The existence of the mental element or guilty mind or mens rea at the time of commission of the actus reus or the act alone will make the act an offence. Generally, subject to both qualification and exception, a person is not criminally liable for a crime unless he intends to cause, foresees that he will probably cause, or at the lowest, foresees that he may cause, the elements which constitute the crime in question. Although the view has been expressed that it is impossible to ascribe any particular meaning to the term mens rea, concepts such as those of intention, recklessness and knowledge are commonly used as the basis for criminal liability and in some respects may be said to be fundamental to it: Intention: To intend is to have in mind a fixed purpose to reach a desired objective; it is used to denote the state of mind of a man who not only foresees but also desires the possible consequences of his conduct. The idea foresees but also desires the possible consequences of his conduct. The idea of ‘intention’ in law is not always expressed by the words ‘intention’, ‘intentionally’ or ‘with intent to’. It is expressed also by words such as ‘voluntarily’, ‘wilfully’ or ‘deliberately’ etc. Section 298 IPC makes the uttering of words or making gestures with deliberate intent to wound the religious feelings punishable under the Act. ON a plain reading of the section, the words ‘deliberate’ and ‘intent’ seem synonymous. An act is intentional if, and in so far as it exists in idea before it exists in fact, the idea realizing itself in the fact because of the desire by which it is accompanied. Intention does not mean ultimate aim and object. Nor is it a synonym for motive. Transferred intention: Where a person intends to commit a particular crime and brings about the elements which constitute that crime, he may be convicted notwithstanding that the crime takes effect in a manner which was unintended or unforeseen. A, intends to kill B by poisoning. A places a glass of milk with poison on the table of B knowing that at the time of going to bed B takes glass of milk. On that fateful night instead of B, C enters the bedroom of B and takes the glass of milk and dies in consequence. A is liable for the killing of C under the principle of transferred intention or malice. Intention and Motive: Intention and motive are often confused as being one and the same. The two, however, are distinct and have to be distinguished. The mental element of a crime ordinarily involves no reference to motive. Motive is something which prompts a man to form an intention. Intention has been defined as the fixed direction of the mind to a particular object, or determination to act in a particular manner and it is distinguishable from motive which incites or stimulates action. Sometimes, motive plays an important role and becomes a compelling force to commit a crime and, therefore, motive behind the crime become a relevant factor for knowing the intention of a person. In Om Prakash v. State of Uttranchal [(2003) 1 SCC 648] and State of UP v. Arun Kumar Gupta [(2003) 2 SCC 202] the Supreme Court rejected the plea that the prosecution could not signify the motive for the crime holding that failure to prove motive is irrelevant in a case wherein the guilt of the accused is proved otherwise. It needs to be emphasised that motive is not an essential element of an offence but motive helps us to know the intention of a person. Motive is relevant and important on the question of intention. Intention and knowledge: The terms ‘intention’ and ‘knowledge’ which denote mens rea appear in Sections 299 and 300, having different consequences. Intention and knowledge are used as alternate ingredients to constitute the offence of culpable homicide. However, intention and knowledge are two different things. Intention is the desire to achieve a certain purpose while knowledge is awareness on the part of the person concerned of the consequence of his act of omission or commission, indicating his state of mind. The demarcating line between knowledge and intention is no doubt thin, but it is not difficult to perceive that they connote different things. There may be knowledge of the likely consequences without any intention to cause the consequences. For example, a mother jumps into a well along with her child in her arms to save herself and her child from the cruelty of her husband. The child dies but the mother survives. The act of the mother is culpable homicide. She might not have intended to cause death of the child but, as a person having prudent mind, which law assumes every person to have, she ought to have known that jumping into the well along with the child was likely to cause the death of the child. She ought to have known as prudent member of the society that her act was likely to cause death even when she may not have intended to cause the death of the child. Recklessness: Intention cannot exist without foresight, but foresight can exist without intention. For a man may foresee the possible or even probable consequences of his conduct and yet not desire this state of risk of bringing about the unwished result. This state of mind is known as ‘recklessness’. The words ‘rash’ and ‘rashness’ have also been used to indicate this same attitude. Negligence: If anything is done without any advertence to the consequent event or result, the mental state in such situation signifies negligence. The event may be harmless or harmful; if harmful the question arises whether there is legal liability for it. In civil law (common law) it is decided by considering whether or not a reasonable man in the same circumstances would have realized the prospect of harm and would have stopped or changed his course so as to avoid it. If a reasonable man would not, then there is no liability and the harm must lie where it falls. The word ‘negligence’, therefore, is used to denote blameworthy inadvertence. It should be recognized that at common law there is no criminal liability for harm thus caused by inadvertence. Strictly speaking, negligence may not be a form of mens rea. It is more in the nature of a legal fault. However, it is made punishable for a utilitarian purpose of hoping to improve people’s standards of behaviour. Criminal liability for negligence is exceptional at common law; manslaughter appears to be the only common law crime, which may result from negligence. Crimes of negligence may be created by statute, and a statute may provide that it is a defence to charges brought under its provisions for the accused to prove that he was not negligent. Conversely, negligence with regard to some subsidiary element in the actus reus of a crime may deprive the accused of a statutory defence which would otherwise have been available to him. Advertent negligence is commonly termed as wilful negligence or recklessness. In other words, inadvertent negligence may be distinguished as simple. In the former the harm done is foreseen as possible or probable but it  is not willed. In the latter it is neither foreseen nor willed. In each case carelessness, i.e. to say indifference as to the consequences, is present; but in the former this indifference does not, while in the latter it does prevent these consequences from being foreseen. The physician who treats a patient improperly through ignorance or forgetfulness is guilty of simple or inadvertent negligence; but if he does the same in order to save himself trouble, or by way of a scientific experiment with full recognition of the danger so incurred, his negligence is wilful. It may be important to state here that the wilful wrong doer is liable because he desires to do the harm; the negligent wrong doer is liable because he does not sufficiently desire to avoid it. He who will excuse himself on the ground that he meant no evil is still open to the reply: - perhaps you did not, but at all event you might have avoided it if you had sufficiently desire to do so; and you are held liable not because you desired the mischief, but because you were careless and indifferent whether it ensured or not. It is on this ground that negligence is treated as a form of mens rea, standing side by side with wrongful intention as a formal ground of responsibility. Actus Reus: To constitute a crime the third element, which we have called actus reus or which Russell1 has termed as “physical event”, is necessary. Now what is this actus reus?2 It is a physical result of human conduct. When criminal policy regards such a conduct as sufficiently harmful it is prohibited and the criminal policy provides a sanction or penalty for its commission. The actus reus may be defined in the words of Kenny to be “such result of human conduct as the law seeks to prevent.”3 Such human conduct may consist of acts of commission as well as acts of omission. Section 32 of our Penal Code lays down: “Words which refer to acts done extend also to illegal omissions.” It is, of course, necessary that the act done or omitted to be done must be an act forbidden or commanded by some statute law, otherwise, it may not constitute a crime. Suppose, an executioner hangs a condemned prisoner with the intention of hanging him. Here all the three elements obviously are present, yet he would not be committing a crime because he is acting in accordance with a law enjoining him to act. So also if a surgeon in the course of an operation, which he knew to be dangerous, with the best of his skill and 1 Russell, op. cit, p. 27 2 It includes not only the result of active conduct (i.e. a deed), but also the result of inactivity. 3 Kenny, Outlines of Criminal Law (17th Ed.), p. 14. care performs it and yet the death of the patient is caused, he would not be guilty of committing a crime because he had no mens rea to commit it. As regards acts of omission which make a man criminally responsible, the rule is that no one would be held liable for the lawful consequences of his omission unless it is proved that he was under a legal obligation to act. In other words, some duty should have been imposed upon him by law, which he has omitted to discharge. Under the Penal Code, Section 43 lays down that the word “illegal” is applicable to everything which is an offence or which is prohibited by law, or which furnishes a ground for a civil action; and a person is said to be “legally bound to do whatever it is illegal in him to omit.” Therefore, an illegal omission would apply to omissions of everything which he is legally bound to do. These indicate problems of actus reus we have discussed in detail elsewhere. However, the two elements actus reus and mens rea are distinct elements of a crime. They must always be distinguished and must be present in order that a crime may be constituted. The mental element or mens rea in modern times means that the person’s conduct must be voluntary and it must also be actuated by a guilty mind, while actus reus denotes the physical result of the conduct, namely, it should be a violation of some law, statutory or otherwise, prohibiting or commanding the conduct. Injury to Human Being: The fourth element, as we have pointed out above, is an injury to another human being or to society at large. This injury to another human being should be illegally caused to any person in body, mind, reputation or property. Therefore, it becomes clear that the consequences of harmful conduct may not only cause a bodily harm to another person, it may cause harm to his mind or to his property or to his reputation. Sometimes, by a harmful conduct no injury is caused to another human being, yet the act may be held liable as a crime, because in such a case harm is caused to the society at large. All the public offences, especially offences against the state, e.g. treason, sedition, etc. are instances of such harms. They are treated to be very grave offences and punished very severely also. We may state again that there are four essential elements that go to constitute a crime. First, the wrongdoer who must be a human being and must have the capacity to commit a crime, so that he may be a fit subject for the infliction of an appropriate punishment. Secondly, there should be an evil intent or mens rea on the part of such human being. This is also known as the subjective element of a crime. Thirdly, there should be an actus reus, i.e. an act committed or omitted in furtherance of such evil intent or mens rea. This may be called the objective element of a crime. Lastly, as a result of the conduct of the human being acting with an evil mind, an injury should have been caused to another human being or to the society at large. Such an injury should have been caused to any other person in body, mind, reputation or property. If all these elements are present, generally, we would say that a crime has been constituted. However, in some cases we find that a crime is constituted, although there is no mens rea at all. These are known as cases of strict liability. Then again, in some cases a crime is constituted, although the actus reus has not consummated and no injury has resulted to any person. Such cases are known as inchoate crimes, like attempt, abetment or conspiracy. So also, a crime may be constituted where only the first two elements are present. In other words, when there is intention alone or even in some cases there may be an assembly alone of the persons without any intention at all. These are exceptional cases of very serious crimes which are taken notice of by the state in the larger interests of the peace and tranquillity of the society. ***** State of Maharashtra v. Mayer Hans George 1 State of Maharashtra v. Mayer Hans George (1965) 1 SCR 123: AIR 1965 SC 722 K. SUBBA RAO, J. - I regret my inability to agree. This appeal raises the question of the scope of the ban imposed by the Central Government and the Central Board of Revenue in exercise of the powers conferred on them under Section 8 of the Foreign Exchange Regulation Act, 1947 against persons transporting prohibited articles through India. 8. In exercise of the powers conferred under Section 8 of the Act the Government of India issued on August 25, 1948 a notification that gold and gold articles, among others, should not be brought into India or sent to India except with the general or special permission of the Reserve Bank of India. On the same date the Reserve Bank of India issued a notification giving a general permission for bringing or sending any such gold provided it was on through transit to a place outside India. On November 24, 1962, the Reserve Bank of India published a notification dated November 8, 1962 in supersession of its earlier notification placing further restrictions on the transit of such gold to a place outside the territory of India, one of them being that such gold should be declared in the “Manifest” for transit in the “same bottom cargo” or “transhipment cargo”. The respondent left Zurich by a Swiss aeroplane on November 27, 1962, which touched Santa Cruz Airport at 6.05 a.m. on the next day. The Customs Officers, on the basis of previous information, searched for the respondent and found him sitting in the plane. On a search of the person of the respondent it was found that he had put on a jacket containing 28 compartments and in 19 of them he was carrying gold slabs weighing approximately 34 kilos. It was also found that the respondent was a passenger bound for Manila. The other facts are not necessary for this appeal. Till November 24, 1962 there was a general permission for a person to bring or send gold into India, if it was on through transit to a place outside the territory of India; but from that date it could not be so done except on the condition that it was declared in the “Manifest” for transit as “same bottom cargo” or “transhipment cargo”. When the respondent boarded the Swiss plane at Zurich on November 27, 1962, he could not have had knowledge of the fact that the said condition had been imposed on the general permission given by the earlier notification. The gold was carried on the person of the respondent and he was only sitting in the plane after it touched the Santa Cruz Airport. The respondent was prosecuted for importing gold into India under Section 8(1) of the Act, read with Section 23(1-A) thereof, and under Section 167(8)(i) of the Sea Customs Act. The learned Presidency Magistrate found the accused “guilty” on the two counts and sentenced him to rigorous imprisonment for one year. On appeal the High Court of Bombay held that the second proviso to the relevant notification issued by the Central Government did not apply to a person carrying gold with him on his body, that even if it applied, the mens rea being a necessary ingredient of the offence, the respondent who brought gold into India for transit to Manila, did not know that during the crucial period such a condition had been imposed and, therefore, he did not commit any offence. On those findings, it held that the respondent was not guilty under any of the aforesaid sections. In the result the conviction made by the Presidency Magistrate was set aside. This appeal has been preferred by special leave against the said order of the High Court. 9. Learned Solicitor-General, appearing for the State of Maharashtra, contends that the Act was enacted to prevent smuggling of gold in the interests of the economic stability of the country and, therefore, in construing the relevant provisions of such an Act there is no scope for applying the presumption of common law that mens rea is a necessary ingredient of the offence. The object of State of Maharashtra v. Mayer Hans George 2 the statute and the mandatory terms of the relevant provisions, the argument proceeds, rebut any such presumption and indicate that mens rea is not a necessary ingredient of the offence. He further contents that on a reasonable construction of the second proviso of the notification dated November 8, 1962 issued by the Board of Revenue, it should be held that the general permission for bringing gold into India is subject to the condition laid down in the second proviso and that, as in the present case the gold was not disclosed in the Manifest, the respondent contravened the terms thereof and was, therefore liable to be convicted under the aforesaid sections of the Foreign Exchange Act. No argument was advanced before us under Section 168(8)(i) of the Sea Customs Act and, therefore, nothing need be said about that section. 10. Learned counsel for the respondent sought to sustain the acquittal of his client practically on the grounds which found favour with the High Court. I shall consider in detail his argument at the appropriate places of the judgment. 11. The first question turns upon the relevant provisions of the Act and the notifications issued thereunder. At the outset it would be convenient to read the relevant parts of the said provisions and the notifications, for the answer to the question raised depends upon them. 8. (1) The Central Government may, by notification in the Official Gazette, order that subject to such exemptions, if any, as may be contained in the notification, no person shall, except with the general or special permission of the Reserve Bank and on payment of the fee, if any, prescribed bring or send into India any gold.... Explanation.—The bringing or sending into any port or place in India of any such article as aforesaid intended to be taken out of India without being removed from the ship or conveyance in which it is being carried shall nonetheless be deemed to be bringing, or as the case may be, sending into India of that article for the purpose of this section. In exercise of the power conferred by the said section on the Central Government, it had issued the following notification dated August 25, 1948 (as amended upto July 31, 1958): In exercise of the powers conferred by sub-section (1) of Section 8 of the Foreign Exchange Regulation Act, 1947 and in supersession of the Notification of the Government of India... the Central Government is pleased to direct that, except with the general or special permission of the Reserve Bank no person shall bring or send into India from any place out of India:- (a) any gold coin, gold bullion, gold sheets or gold ingot, whether refined or not;.... The Reserve Bank of India issued a notification dated August 25, 1948 giving a general permission in the following terms: The Reserve Bank of India is hereby pleased to give general permission to the bringing or sending of any such gold or silver by sea or air into any port in India provided that the gold or silver (a) is on through transit to a place which is outside both (i) the territory of India and (ii) the Portuguese Territories which are adjacent to or surrounded by the territory of India and (b) is not removed from the carrying ship or aircraft, except for the purpose of transhipment. On November 8, 1962, in supersession of the said notification the Reserve Bank of India issued the following notification which was published in the Official Gazette on November 24, 1962: (T)he Reserve Bank of India gives general permission to the bringing or sending of any of the following articles, namely, State of Maharashtra v. Mayer Hans George 3 (a) any gold coin, gold bullion, gold sheets or gold ingot, whether refined or not, into any port or place in India when such articles is on through transit to a place which is outside the territory of India. Provided that such article is not removed from the ship or conveyance in which it is being carried except for the purpose of transhipment; Provided further that it is declared in the manifest for transit as same bottom cargo or transhipment cargo. The combined effect of the terms of the section and the notifications may be stated thus: No gold can be brought in or sent to India though it is on through transit to a place which is outside India except with the general or special permission of the Reserve Bank of India. Till November 24, 1962, under the general permission given by the Reserve Bank of India such gold could be brought in or sent to India if it was not removed from the ship or aircraft except for the purpose of transhipment. But from that date another condition was imposed thereon, namely, that such gold shall be declared in the manifest transit as “same bottom cargo” or “transhipment cargo.” 12. Pausing here, it will be useful to notice the meaning of some of the technical words used in the second proviso to the notification. The object of maintaining a transit manifest for cargo, as explained by the High Court, is twofold, namely, “to keep a record of goods delivered into the custody of the carrier for safe carriage and to enable the Customs Authorities to check and verify the dutiable goods which arrive by a particular fight”. “Cargo” is a shipload or the lading of a ship. No statutory or accepted definition of the word “cargo” has been placed before us. While the appellant contends that all the goods carried in a ship or plane is cargo, the respondents counsel argues that nothing is cargo unless it is included in the manifest. But what should be included and what need not be included in the manifest is not made clear. It is said that the expressions “same bottom cargo” and “transit cargo” throw some light on the meaning of the word “cargo”. Article 606 of the Chapter on “Shipping and Navigation” in Halsbury’s Laws of England, 3rd Edn., Vol. 35, at p. 426, brings out the distinction between the two types of cargo. If the cargo is to be carried to its destination by the same conveyance throughout the voyage or journey it is described as “same bottom cargo.” On the other hand, if the cargo is to be transhipped from one conveyance to another during the course of transit, it is called “transhipment cargo.” This distinction also does not throw any light on the meaning of the word “cargo”. If the expression “cargo” takes in all the goods carried in the plane, whether it is carried under the personal care of the passenger or entrusted to the care of the officer in charge of the cargo, both the categories of cargo can squarely fall under the said two heads. Does the word “manifest” throw any light? Inspector Darine Bejan Bhappu says in his evidence that manifest for transit discloses only such goods as are unaccompanied baggage but on the same flight and that “accompanied baggage is never manifested as Cargo Manifest”. In the absence of any material or evidence to the contrary, this statement must be accepted as a correct representation of the actual practice obtaining in such matters. But that practice does not prevent the imposition of a statutory obligation to include accompanied baggage also as an item in the manifest if a passenger seeks to take advantage of the general permission given thereunder. I cannot see any inherent impossibility implicit in the expression “cargo” compelling me to exclude an accompanied baggage from the said expression. 13. Now let me look at the second proviso of the notification dated November 8, 1962. Under Section 8 of the Act there is ban against bringing or sending into India gold. The notification lifts the ban to some extent. It says that a person can bring into any port or place in India gold when the same is on through transit to a place which is outside the territory of India, provided that it is State of Maharashtra v. Mayer Hans George 4 declared in the manifest for transit as “same bottom cargo or transhipment cargo”. It is, therefore, not an absolute permission but one conditioned by the said proviso. If the permission is sought to be availed of, the condition should be complied with. It is a condition precedent for availing of the permission. 14. Learned counsel for the respondent contends that the said construction of the proviso would preclude a person from carrying small articles of gold on his person if such article could not be declared in the manifest for transit as “same bottom cargo” or “transhipment cargo” and that could not have been the intention of the Board of Revenue. On that basis, the argument proceeds, the second proviso should be made to apply only to such cargo to which the said proviso applies and the general permission to bring gold into India would apply to all other gold not covered by the second proviso. This argument, if accepted, would enable a passenger to circumvent the proviso by carrying gold on his body by diverse methods. The present case illustrates how such a construction can defeat the purpose of the Act itself. I cannot accept such a construction unless the terms of the notification compel me to do so. I do not see any such compulsion. The alternative construction for which the appellant contends no doubt prevents a passenger from carrying with him small articles of gold. The learned Solicitor-General relies upon certain rules permitting a passenger to bring into India on his person small articles of gold, but ex facie those rules do not appear to apply to a person passing through India to a foreign country. No doubt to have international goodwill the appropriate authority may be well advised to give permission for such small articles of gold or any other article for being carried by a person with him on his way through India to foreign countries. But for one reason or other, the general permission in express terms says that gold shall be declared in the manifest and I do not see, nor any provision of law has been placed before us, why gold carried on a person cannot be declared in the manifest if that person seeks to avail himself of the permission. Though I appreciate the inconvenience and irritation that will be caused to passengers bonafide passing through our country to foreign countries for honest purposes, I cannot see my way to interpret the second proviso in such a way as to defeat its purpose. I, therefore, hold that on a fair construction of the notification dated November 8, 1962 that the general permission can be taken advantage of only by a person passing through India to a foreign country if he declares the gold in his possession in the manifest for transit as “same bottom cargo” or “transhipment cargo”. 15. The next argument is that mens rea is an essential ingredient of the offence under Section 8 of the Act, read with Section 23(l-A)(a) thereof. Under Section 8 no person shall, except with the general or special permission of the Reserve Bank of India, bring or send to India any gold. Under the notification dated November 8, 1962, and published on November 24, 1962, as interpreted by me, such gold to earn the permission shall be declared in the manifest. The section, read with the said notification, prohibits bringing or sending to India gold intended to be taken out of India unless it is declared in the manifest. If any person brings into or sends to India any gold without declaring it in such manifest, he will be doing an act in contravention of Section 8 of the Act read with the notification and, therefore, he will be contravening he provisions of the Act. Under Section 23(l-A)(a) of the Act he will be liable to punishment of imprisonment which may extend to two years or with fine or with both. The question is whether the intention of the legislature is to punish persons who break the said law without a guilty mind. The doctrine of mens rea in the context of statutory crimes has been the subject-matter of many decisions in England as well as in our country. I shall briefly consider some of the important standard textbooks and decisions cited at the Bar to ascertain its exact scope. State of Maharashtra v. Mayer Hans George 5 16. In Russell on Crime, 11th Edn., Vol. 1, it is stated at p. 64:... there is a presumption that in any statutory crime the common law mental element, mens rea, is an essential ingredient. On the question how to rebut this presumption, the learned author points out that the policy of the courts is unpredictable. I shall notice some of the decisions which appear to substantiate the author’s view. In Halsbury’s Laws of England, 3rd Edn., Vol. 10, in para 508, at p. 273, the following passage appears: A statutory crime may or may not contain an express definition of the necessary state of mind. A statute may require a specific intention, malice, knowledge, willfulness, or recklessness. On the other hand, it may be silent as to any requirement of mens rea, and in such a case in order to determine whether or not mens rea, is an essential element of the offence it is necessary to look at the objects and terms of the statute. This passage also indicates that the absence of any specific mention of a state of mind as an ingredient of an offence in a statute is not decisive of the question whether mens rea, is an ingredient of the offence or not: it depends upon the object and the terms of the statute. So too, Archbold in his book on Criminal Pleading, Evidence and Practice, 35th Edn., says much to the same effect at p. 48 thus: It has always been a principle of the common law that mens rea, is an essential element in the commission of any criminal offence against the common law.... In the case of statutory offences it depends on the effect of the statute.... There is a presumption that mens rea, is an essential ingredient in a statutory offence, but this 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. The leading case on the subject is Sherras v. De Rutzen [(1895) 1 QB 918, 921]. Section 16(2) of the Licensing Act, 1872, prohibited a licenced victualler from supplying liquor to a police constable while on duty. It was held that that section did not apply where a licenced victualler bona fide believed that the police officer was off duty. Wright, J., observed: 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, and both must be considered. This sums up the statement of the law that has been practically adopted in later decisions. The Privy Council in Jacob Bruhn v. King on the Prosecution of the Opium Farmer [LR (1909) AC 317, 324] construed Section 73 of the Straits Settlements Opium Ordinance, 1906. Section 73 of the said Ordinance stated that if any ship was used for importation, landing, removal, carriage or conveyance of any opium or chandu contrary to the provisions of the said Ordinance or of the rules made thereunder, the master and owner thereof would be liable to a fine. The section also laid down the rule of evidence that if a particular quantity of opium was found in the ship that was evidence that the ship had been used for importation of opium, unless it was proved to the satisfaction of the court that every reasonable precaution had been taken to prevent such user of such ship and that none of the officers, their servants or the crew or any persons employed on board the ship, were implicated therein. The said provisions are very clear; the offence is defined, the relevant evidence is described and the burden of proof is placed upon the accused. In the context of that section the Judicial Committee observed: State of Maharashtra v. Mayer Hans George 6 By this Ordinance every person other than the opium farmer is prohibited from importing or exporting chandu. If any other person does so, he prima facie commits a crime under the provisions of the Ordinance. If it be provided in the Ordinance, as it is, that certain facts, if established, justify or excuse what is prima facie a crime, then the burden of proving those facts obviously rests on the party accused. In truth, this objection is but the objection in another form, that knowledge is a necessary element in crime, and it is answered by the same reasoning. It would be seen from the aforesaid observation that in that case mens rea, was not really excluded but the burden of proof to negative mens rea, was placed upon the accused. In Pearks’ Dairies Ltd. v. Tottenham Food Control Committee [(1919) 88 LJ KB 623, 626] the Court of Appeal considered the scope of Regulations 3 and 6 of the Margarine (Maximum Prices) Order, 1917. The appellants’ assistant, in violation of their instructions, but by an innocent mistake, sold margarine to a customer at the price of 1 sh. per Ib. giving only 14½ozs. by weight instead of 16 ozs. The appellants were prosecuted for selling margarine at a price exceeding the maximum price fixed and one of the contentions raised on behalf of the accused was that mens rea, on the part of the appellants was not an essential element of the offence. Lord Coleridge, J., cited with approval the following passage of Channell, J., in Pearks, Gunston & Tee, Ltd. v. Ward [(1902) 71 LJ KB 656]: But there are exceptions to this rule in the case of quasi-criminal offences, as they may be termed, that is to say, where certain acts are forbidden by law under a penalty, possibly even under a personal penalty, such as imprisonment, at any rate in default of payment, of a fine; and the reason for this is, that the legislature has thought it so important to prevent the particular act from being committed that it absolutely forbids it to be done; and if it is done the offender is liable to a penalty whether he had any mens rea, or not, and whether or not he intended to commit a breach of the law. Where the act is of this character then the master, who, in fact, has done the forbidden thing through his servant, is responsible and is liable to a penalty. There is no reason why he should not be, because the very object of the legislature was to forbid the thing absolutely. This decision states the same principle in a different form. It also places emphasis on the terms and the object of the statute in the context of the question whether mens rea, is excluded or not. The decision in Rex v. Jacobs [(1944) KB 417] arose out of an agreement to sell price-controlled goods at excess price. The defence was that the accused was ignorant of the proper price. The Court of Criminal Appeal held that in the summing up the direction given by the Judge to the jury that it was not necessary that the prosecution should prove that the appellants knew what the permitted price was but that they need only show in fact a sale at an excessive price had taken place, was correct in law. This only illustrates that on a construction of the particular statute, having regard to the object of the statute and its terms, the Court may hold that mens rea, is not a necessary ingredient of the offence. In Brend v. Wood [(1946) 62 The Times LR 462, 463] dealing with an emergency legislation relating to fuel rationing, Goddard, C.J., observed: There are statutes and regulations in which Parliament has been not to create offences and make people responsible before criminal courts although there is an absence of mens rea, but it is certainly not the Court’s duty to be acute to find that mens rea, is not a constituent part of a crime. 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. State of Maharashtra v. Mayer Hans George 7 This caution administered by an eminent and experienced Judge in the matter of construing such statutes cannot easily be ignored. The Judicial Committee in Srinivas Mall Bairoloya v. King- Emperor [(1947) ILR 26 Pat 460, 469 (PC)] was dealing with a case in which one of the appellants was charged with an offence under the rules made by virtue of the Defence of India Act, 1939, of selling salt at prices exceeding those prescribed under the rules, though the sales were made without the appellant’s knowledge by one of his servants. Lord Parcq, speaking for the Board, approved the view expressed by Goddard, C.J., in Brend v. Wood and observed: Their Lordships agree with the view which was recently expressed by the Lord Chief Justice of England, when he said: ‘It is in my opinion the utmost importance for the protection of the liberty of the subject that a court should always bear in mind 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 got a guilty mind.’ The acceptance of the principle by the Judicial Committee that mens rea, is a constituent part of a crime unless the statute clearly or by necessary implication excludes the same, and the application of the same to a welfare measure is an indication that the Court shall not be astute in construing a statute to ignore mens rea, on a slippery ground of a welfare measure unless the statute compels it to do so. Indeed, in that case the Judicial Committee refused to accept the argument that where there is an absolute prohibition, no question of mens rea, arises. The Privy Council again in Lim Chin Aik v. Queen [(1963) AC 160, 174, 175] reviewed the entire law on the question in an illuminating judgment and approached the question, if I may say so, from a correct perspective. By Section 6 of the Immigration Ordinance, 1952, of the State of Singapore, “It shall not be lawful for any person other than a citizen of Singapore to enter the colony from the Federation or having entered the colony from the Federation to remain in the Colony if such person has been prohibited by order made under Section 9 of this Ordinance from entering the colony” and Section 9, in the case of an order directed to a single individual, contained no provision for publishing the order or for otherwise bringing it to the attention of the person named. The Minister made an order prohibiting the appellant from entering the colony and forwarded it to the Immigration officer. There was no evidence that the order had in fact come to the notice or attention of the appellant. He was prosecuted for contravening Section 6(2) of the Ordinance. Lord Evershed, speaking for the Board, reaffirmed the formulations cited from the judgment of Wright, J., and accepted by Lord de Parcq in Srinivas Mul Bairoliya case. On a review of the case-law on the subject and the principles enunciated therein, the Judicial Committee came to the following conclusion: But it is not enough in their Lordships’ opinion 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, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the regulations. Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim. The same idea was repeated thus: Where it can be shown that the imposition of strict liability would result in the prosecution and conviction of a class of persons whose conduct could not in any way affect the observance of the State of Maharashtra v. Mayer Hans George 8 law, Their Lordships consider that, even where the statute is dealing with a grave social evil, strict liability is not likely to be intended. Dealing with the facts of the case before it, the Privy Council proceeded to illustrate the principle thus: But Mr. Le Quesne was unable to point to anything that the appellant could possibly have done so as to ensure that he complied with the regulations. It was not, for example, suggested that it would be practicable for him to make continuous inquiry to see whether an order had been made against him. Clearly one of the objects of the Ordinance is the expulsion of prohibited persons from Singapore, but there is nothing that a man can do about it, before the commission of the offence, there is no practical or sensible way in which he can ascertain whether he is a prohibited person or not. On that reasoning the Judicial Committee held that the accused was not guilty of the offence with which he was charged. This decision adds a new dimension to the rule of construction of a statute in the context of mens rea, accepted by earlier decisions. While it accepts the rule that for the purpose of ascertaining whether a statute excludes mens rea or not, the object of the statute and its wording must be weighed, it lays down that mens rea cannot be excluded unless the person or persons aimed at by the prohibition are in a position to observe the law or to promote the observance of the law. We shall revert to this decision at a later stage in a different context. This Court in Rahula Hariparasada Rao v. State [(1951) SCR 322] speaking through Fazl Ali, J., accepted the observations made by the Lord Chief Justice of England in Brend v. Wood. The decision of this Court in Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, Additional Collector of Customs, Calcutta [Civil Appeal No 770 of 1962 (judgement delivered on 3-2-64)] is strongly relied upon by the appellant in support of the contention that mens rea, is out of place in construing statutes similar to that under inquiry now. There, this Court was concerned with the interpretation of Section 52-A of the Sea Customs Act, 1878. The Indo-China Steam Navigation Co. Ltd., which carries on the business of carriage of goods and passengers by sea, owns a fleet of ships, and has been carrying on its business for over 80 years. One of the routes plied by its ships is the Calcutta-Japan-Calcutta route. The vessel Eastern Saga arrived at Calcutta on October 29, 1957. On a search it was found that a hole was covered with a piece of wood and over painted and when the hole was opened a large quantity of gold in bars was discovered. After following the prescribed procedure the Customs Authorities made an order confiscating the vessel in addition to imposing other penalties. One of the contentions raised was that Section 52-A of the Sea Customs Act the infringement whereof was the occasion for the confiscation could not be invoked unless mens rea, was established. Under that section no vessel constructed, adapted, altered or fitted for the purpose of concealing goods shall enter, or be within, the limits of any port in India, or the Indian customs waters. This Court in construing the scheme and object of the Sea Customs Act came to the conclusion that mens rea, was not a necessary ingredient of the offence, as, if that was so, the statute would become a dead-letter. That decision was given on the basis of the clear object of the statute and on a construction of the provisions of that statute which implemented the said object. It does not help us in construing the relevant provisions of the Foreign Exchange Regulation Act. 17. The Indian decisions also pursued the same line. A Division Bench of the Bombay High Court in Emperor v. Isak Solomon Macmull [(1948) 50 Bom LR 190, 194] in