Criminal Law – Learning Quiz 1

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Section 81 IPC

Act likely to cause harm, but done without criminal intent, and to prevent other harm

Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property.

Explanation.—It is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm.

Illustrations

(a) A, the captain of a steam vessel, suddenly, and without any fault or negligence on his part, finds himself in such a position that, before he can stop his vessel, he must inevitably run down a boat B, with twenty or thirty passengers on board, unless he changes the course of his vessel, and that, by changing his course, he must incur risk of running down a boat C with only two passengers on board, which he may possibly clear. Here, if A alters his course without any intention to run down the boat C and in good faith for the purpose of avoiding the danger to the passengers in the boat B, he is not guilty of an offence, though he may run down the boat C by doing an act which he knew was likely to cause that effect, if it be found as a matter of fact that the danger which he intended to avoid was such as to excuse him in incurring the risk of running down C.

(b) A, in a great fire, pulls down houses in order to prevent the conflagration from spreading. He does this with the intention in good faith of saving human life or property. Here, if it be found that the harm to be prevented was of such a nature and so imminent as to excuse A’s act, A is not guilty of the offence.

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Section 85. Act of a person incapable of judgment by reason of intoxication caused against his will

Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law: provided that the thing which intoxicated him was administered to him without his knowledge or against his will.

Section 86. Offence requiring a particular intent or knowledge committed by one who is intoxicated.

In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will.

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Section 378. Theft.

Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.
Explanation 1.—A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.
Explanation 2.—A moving effected by the same act which effects the severance may be a theft.
Explanation 3.—A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it.
Explanation 4.—A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal.
Explanation 5.—The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied.
Illustrations
(a) A cuts down a tree on Z’s ground, with the intention of dishonestly taking the tree out of Z’s possession without Z’s consent. Here, as soon as A has severed the tree in order to such taking, he has committed theft.
(b) A puts a bait for dogs in his pocket, and thus induces Z’s dog to follow it. Here, if A’s intention be dishonestly to take the dog out of Z’s possession without Z’s consent, A has committed theft as soon as Z’s dog has begun to follow A.
(c) A meets a bullock carrying a box of treasure. He drives the bullock in a certain direction, in order that he may dishonestly take the treasure. As soon as the bullock begins to move, A has committed theft of the treasure.
(d) A being Z’s servant, and entrusted by Z with the care of Z’s plate, dishonestly runs away with the plate, without Z’s consent. A has committed theft.
(e) Z, going on a journey, entrusts his plate to A, the keeper of a warehouse, till Z shall return. A carries the plate to a goldsmith and sells it. Here the plate was not in Z’s possession. It could not therefore be taken out of Z’s possession, and A has not committed theft, though he may have committed criminal breach of trust.
(f) A finds a ring belonging to Z on a table in the house which Z occupies. Here the ring is in Z’s possession, and if A dishonestly removes it, A commits theft.
(g) A finds a ring lying on the highroad, not in the possession of any person. A, by taking it, commits no theft, though he may commit criminal misappropriation of property.
(h) A sees a ring belonging to Z lying on a table in Z’s house. Not venturing to misappropriate the ring immediately for fear of search and detection, A hides the ring in a place where it is highly improbable that it will ever be found by Z, with the intention of taking the ring from the hiding place and selling it when the loss is forgotten. Here A, at the time of first moving the ring, commits theft.
(i) A delivers his watch to Z, a jeweller, to be regulated. Z carries it to his shop. A, not owing to the jeweller any debt for which the jeweller might lawfully detain the watch as a security, enters the shop openly, takes his watch by force out of Z’s hand, and carries it away. Here A, though he may have committed criminal trespass and assault, has not committed theft, inasmuch as what he did was not done dishonestly.
(j) If A owes money to Z for repairing the watch, and if Z retains the watch lawfully as a security for the debt, and A takes the watch out of Z’s possession, with the intention of depriving Z of the property as a security for his debt, he commits theft, inasmuch as he takes it dishonestly.
(k) Again, if A, having pawned his watch to Z, takes it out of Z’s possession without Z’s consent, not having paid what he borrowed on the watch, he commits theft, though the watch is his own property inasmuch as he takes it dishonestly.
(l) A takes an article belonging to Z out of Z’s possession without Z’s consent, with the intention of keeping it until he obtains money from Z as a reward for its restoration. Here A takes dishonestly; A has therefor committed theft.
(m) A, being on friendly terms with Z, goes into Z’s library in Z’s absence, and takes away a book without Z’s express consent for the purpose merely of reading it, and with the intention of returning it. Here, it is probable that A may have conceived that he had Z’s implied consent to use Z’s book. If this was A’s impression, A has not committed theft.
(n) A asks charity from Z’s wife. She gives A money, food and clothes, which A knows to belong to Z her husband. Here it is probable that A may conceive that Z’s wife is authorised to give away alms. If this was A’s impression, A has not committed theft.
(o) A is the paramour of Z’s wife. She gives a valuable property, which A knows to belong to her husband Z, and to be such property as she has not authority from Z to give. If A takes the property dishonestly, he commits theft.
(p) A, in good faith, believing property belonging to Z to be A’s own property, takes that property out of B’s possession. Here, as A does not take dishonestly, he does not commit theft.

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Section 299. Culpable homicide
Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Illustrations
(a) A lays sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be thereby caused. Z, believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide.
(b) A knows Z to be behind a bush. B does not know it. A, intending to cause, or knowing it to be likely to cause Z’s death, induces B to fire at the bush. B fires and kills Z. Here B may be guilty of no offence; but A has committed the offence of culpable homicide.
(c) A, by shooting at a fowl with intent to kill and steal it, kills B, who is behind a bush; A not knowing that he was there. Here, although A was doing an unlawful act, he was not guilty of culpable homicide, as he did not intend to kill B, or to cause death by doing an act that he knew was likely to cause death.
Explanation 1.—A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
Explanation 2.—Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.
Explanation 3.—The causing of the death of a child in the mother’s womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.

Hint

In State of Maharashtra vs MH George case, the respondent i.e. Mayer Hans George who was a German national was charged for bringing gold to India without the permission of the Reserve Bank Of India as per Section 23(1A)(a) of the Foreign Exchange Regulations Act of 1947 and was sentenced for a year; as he was considered being doing so with an intent to defraud the government. The High court acquitted him, but the state made a further appeal in the Supreme Court. There, the apex court delved into question where, apart from in situations where any arrangement in that behalf is in place (a) a subordinate enactment could be said to have been passed, and (b) when it happens.
FACTS:

In exercise of the powers conferred under Section 8 of the Foreign Exchange Regulation Act, 1947; 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 “transshipment cargo“.
The respondent, a German dealer, left Zurich via plane on 27th November 1962 with 34 kilos of gold-covered on his person to be conveyed in Manila.
The plane reached in Bombay on the 28th, however; the respondent didn’t leave the plane. The Customs Authorities analyzed the manifest of the airplane to see if any gold was dispatched by any traveller, and not finding any entry they entered the plane, looked through the respondent, recouped the gold, and accused him of an offense under ss. 8(1) and 23(1-A) of the Foreign Exchange Regulation Act (7 of 1947) and under Section 167(8)(i) of the Sea Customs Act. read with a notification dated November 8, 1962, of the Reserve Bank of India which was published in the Gazette of India on 24th November.
The respondent was initially sentenced by the Magistrate, however, acquitted by the High Court. The state made a further appeal in the Supreme Court to reinstate conviction.
ISSUES:

Whether mens rea is an essential ingredient regarding an offence under Section 23(1A) of the Act?
Whether the respondent is liable for bringing gold to India under ss. 8(1) and 23(1A) of the Foreign Exchange Regulation Act (7 of 1947) which was published in the Gazette of India on 24th November 1962?
What was the ban imposed by the Central Government and the Central Board of Revenue in exercise of the power granted an under section of the Foreign Exchange Regulation Act,1947, against person transporting prohibited goods through the vicinity of India?
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RATIO DECIDENDI:

On the language of 8(1) read with Section 24(1) of the Act, which throws on the accused the burden of proving that he had the requisite permission to bring gold into India, there was no scope for the invocation of the rule that besides the mere act of voluntarily bringing gold into India, any further menta condition or mens rea is postulated as necessary to constitute an offence referred to in Section 23(1A).
Further, the very object and purpose of the Act and its effectiveness as an instrument to prevent smuggling would be entirely frustrated if a condition were to be read into the sections qualifying the plains words of the enactment, that the accused should be proved to have knowledge that he was contravening the law before he could be held to have contravened the provision.

DECISION:

The court held that the very object and purpose of the Act and, its effectiveness as an instrument to prevent smuggling would be entirely frustrated if a condition were to be read into 8(1) of section 23 (1A) of the Act qualifying the plain words of the enactment, that the accused should be proved to have knowledge that he was contravening the law before he could be held to have contravened the provision.
Addressing the second issue the apex court stated that in the case on hand, the notification by the Reserve Bank varying the exemption, was admittedly “Published” in the Official Gazette–the usual mode of publication in India, and it was so published long before the respondent landed in Bombay.
The contravention contemplated by 23(1-A) of the Act is, in the present context, of an order of the Central Government issued under Section 8(1) of the Act and published in the Official Gazette on November 25, 1948 and this order was in force during all this period. For the period, till 8th November, the bringing of gold by through passengers would not be a contravention because of the permission of the Reserve Bank exempting such bringing front the operation of the Central Government’s notification.
It was really the withdrawal of this exemption by the Reserve Bank that rendered the act of the respondent criminal. Being a general rule applicable to every person who passes through India, it would be reasonable to expect that the proper method of acquainting a person with an order which is directed to obey is to serve it on him or so publish it he would certainly know of it, but there would be no question of individual service of a general notification on every member of the public, and all that the subordinate lawmaking body can or need do, would be to publish it in such a manner that persons can, if they are interested, acquaint themselves with its contents.
The knowledge of the existence or content of a law by an individual would not always be relevant, save on the question of the sentence to be imposed for its violation. For an Indian law to operate and be effective in the territory where it operates viz., the territory of India, it is unnecessary that it should either be published or be made known outside the country. It was “published” and made known in India by publication in the Gazette on the 24th November, and the ignorance of it by the respondent who is a foreigner is wholly irrelevant.
Addressing the third issue, the court held that the Central Government, by notification in the Official Gazette imposed a ban on any person bringing gold into India any person who brought such gold in contravention of the notification would be guilty of an offence under this section.
By that notification, it made the bringing of gold into India an offence. It is necessary to remember the Explanation to Section 8(1). By that Explanation it would be seen that even if the gold remained in a ship or an aircraft which is within India without it being taken out and was not removed from the ship or aircraft, it shall be deemed to be a bringing for the section. Reference to this explanation holds significance because if the act of the respondent was an offence under the section 8(1) he should not get any advantage by his having remained on the aircraft without disembarking at Bombay, for if the carrying on his person of the gold was the “bringing” of the gold into India, that he did not remove himself from the aircraft but stayed on in it would make no difference and he would be guilty of the offence by the Explanation to Section 8(1).
The outcome, in this manner, is that the Judges of the High Court failed in clearing the respondent. The intrigue has, hence, to be permitted and the conviction of the respondent restored. In these conditions, however, the intrigue were permitted; the sentence would be decreased to the period previously experienced, which was just specialized impedance with the sentence passed by the Presidency Magistrate; however, in substance, it was not. The appeal was therefore allowed.
Majority opinion: Mens rea in Statutory Offences Excluded

Section 23(1-A) of the Act merely refers to the contravention of the Act or the rule etc. so that it might be termed neutral in the present context, in that it neither refers to the state of the mind of the contravener by the use of the expression such as “wilfully”, “knowingly”, etc nor does it create an absolute liability.
Where the statute does not contain the word “knowingly”, the first thing to do is to examine the statute to see whether it required the ordinary presumption that mens rea applies or not. When one turns to the main provision whose contravention is the subject of the penalty imposed by Section 23(1A) viz. 8(1) in the present context, one reaches the conclusion that there is no scope for the invocation of the rule of mens rea. It lays an absolute embargo upon persons who without the special or general permission of the Reserve Bank and after satisfying the conditions prescribed by the Bank bring or send into India any gold etc., the absoluteness being emphasised, as we have already pointed out, by the terms of Section 24(1) of the Act. The very concept of “bringing” or “sending” would exclude an involuntary bringing or an involuntary sending.
Thus, for instance, if without the knowledge of the person a packet of gold was slipped into his pocket it is possible to accept the contention that such a person did not “bring” the gold into India within the meaning of Section 8(1).
Similar considerations would apply to a case where the aircraft on a through a flight which did not include any landing in India has to make a force landing in India — owing say to engine trouble. But if the bringing into India was a conscious act and was done intending to bring it into India the mere “bringing” constitutes the offence and there is no other ingredient that is necessary in order to constitute a contravention of Section 8(1) than that conscious physical act of bringing. If then under Section 8(1) the conscious physical act of “bringing” constitutes the offence, Section 23(1-A) does not import any further condition for imposing liability than what it provided for in Section 8(1). On the language, therefore, of Section 8(1) read with Section 24(1) we are clearly of the opinion that there is no scope for the invocation of the rule that besides the mere act of voluntarily bringing gold into India any further mental condition is postulated as necessary to constitute an offence of the contravention referred to in Section 23(1-A).

CONCLUSION:

Regarding essentially because it depicted the offence as a grave social wrong, strict liability was imposed. The courts need to apply the law diligently regarding the use of the assumptions, as everything relies upon the realities of the case, just as any other statutory offence.