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Strict Liabilty Offences in India

5.2 Criminal Law – I

Submitted To –

Ms. Divita Pagey, Research Associate

Ms. Priyanka Mardikar, Visiting Faculty of Law

Submitted By – Shivam Shantanu

UID No. - UG17- 94

Academic Year – 2019-20

Semester- V

MAHARASHTRA NATIONAL LAW UNIVERRSITY, NAGPUR


Table of Contents
Introduction ..................................................................................................................................... 3
Research Methodology ................................................................................................................... 3
Research Questions ......................................................................................................................... 3
Liability Under Criminal Law ........................................................................................................ 4
Principle Of Strict Liability ............................................................................................................ 4
Instances Of The Principle Of Strict Liability: ............................................................................... 5
Other Statutory Provisions-............................................................................................................. 7
Analysis........................................................................................................................................... 8
Conclusion ...................................................................................................................................... 9
References ..................................................................................................................................... 10

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INTRODUCTION
As we all know, liability is an inherent feature of human society and rights are always followed
by liabilities, so without the existence of liability in our society, the coherence of our society will
also loose its force, and people would not care and value other's rights even. Now talking about
the concept of 'criminal law' in particular, the liability for one‘s actions is based on two elements,
i.e. actus reus and mens rea. However the principle of strict liability is an exception to this.
Taking such principle into account, the author has made an elaborate discussion about it, by
citing various instances of it in the Indian Penal Code, 1860 and, other statutory provisions.
Finally, towards the conclusion of this research paper, the importance of the principle of strict
liability and justification towards the concept that, 'the act alone is punishable' has been
highlighted.

RESEARCH METHODOLOGY
The research methodology defines what the activity of research is, how to proceed, how to
measure progress, and what constitutes success. It provides us an advancement of wealth of
human knowledge, tools of the trade to carry out research, tools to look at things in life
objectively; develops a critical and scientific attitude, disciplined thinking to observe objectively
(scientific deduction and inductive thinking); skills of research particularly in the age of
information. Also it defines the way in which the data are collected in a research project. In this
paper it presents two components of the research methodology from a real project; the theoretical
design and framework respectively. The research methodology used in this project is doctrinal
method based on secondary data. Researcher has referred bare acts, articles and various cases.

RESEARCH QUESTIONS
1. What is Strict Liability ?
2. Which offences come under the purview of Strict Liability ?
3. What is the scope of Strict Liabilty under Indian Penal Code ?
4. What is the scope of Strict Liabilty under different statutes ?

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LIABILITY UNDER CRIMINAL LAW
Liability can be defined as the responsibility for a crime and a ground for receiving the penalty
fixed by the state for such offense. Anyone who commits a crime against the rules laid down by
the society he or she has to pay the price for such action. The harm or the loss incurred by the
society is made up by the penalty imposed on the offender by the society.

The liability in criminal law for one's actions is based on two elements. Firstly, ‗actus reus‘
which is defined as ‗such result of human conduct as the law seeks to prevent‘1 and secondly,
‗mens rea‘ which means some blameworthy mental condition, whether constituted by intention
or knowledge or otherwise, the absence of which on any particular occasion, negatives the
contention of a crime. 2 The simultaneous product of these two elements leads to criminal
liability. Thus, the maxim Actus non facit reum, nisi mens sit rea rightly explains the principle of
criminal liability as the act itself is not criminal unless accompanied by a requisite guilty mind. 3
The element of guilty mind has to apply in all aspects of the act i.e., the physical act of doing or
not doing, the circumstances under which such commission or omission is done and the
consequences of such action or omission. So it is concluded that a wrongful doer can only be
held liable criminally for his actions or omissions if his action is accompanied with guilty
intention.

However, the principle of strict liability in criminal law acts as an exception to this general
principle. Although the element of mens rea is a sine qua non for criminal liability, still it can be
waived in certain circumstances. A man can be held responsible criminally even if his action is
not accompanied by the guilty intention. Mere actus reus is enough to construct his criminal
liability.

PRINCIPLE OF STRICT LIABILITY


Strict liability crimes are those types of crimes where the defendant is held responsible for the
criminal action even if he did not have the requisite guilty intention for the alleged offense. It
resembles the no-fault liability. The element of mens rea is absent, and on the sole basis of his
actus reus, he is held responsible. This principle was developed in the case of Rylands v.

1
J.W.C. Turner, Kenny's outlines of Criminal Law, 19th ed. 1966, p. 17.
2
S. James, History of Criminal Law of England, 2nd ed. 1883, p. 94-95.
3
Russell on Crime, 20th ed., 1961, p. 22 – 60.

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Fletcher.4 This rule was basically drawn in the area of tortious wrongs. But the nature of this
principle suits certain criminal offenses whereby the offender goes off the hook because of lack
of guilty intention. The mens rea is presumed here, and it is not needed to be proved. The actus
reus is so harmful that it can be concluded as an act prohibited by law.

Section 11 of the Indian Penal Code, 18605 lays down the provision as to who is to be held
liable. The word defined in this section is ―person‖, which includes both natural and juristic
persons. A person is liable for his wrongful or prohibited actions coupled with guilty intention as
per the general principles of the criminal law. But strict liability is an exception to this general
rule. A person can be liable for the penalty even when he does not intend to do such offense.

Intention is not a specific element that can be directly attributed to a particular form or way. It is
an abstract element which has to be construed from the circumstance and facts of the case. The
offenses in the penal code have been worded as such so that the element of mens rea is indirectly
induced from the offense itself. For example the use of words like dishonestly, knowingly,
intentionally, fraudulently, etc. depict the element of guilty intention as required in the offense.
The author shall discuss certain specific provisions of the code which do not have any such
words in the legislative provision yet it is listed under the list of crimes in the code.

INSTANCES OF THE PRINCIPLE OF STRICT LIABILITY:


A. THE INDIAN PENALCODE, 1860- In order to see the application of the principle of strict
liability, the author has to analyze the offenses individually (as mentioned below). Mens rea is
not essential with the following offenses in the Indian Penal Code, 1860.

Section 121: Waging, or Attempting To Wage War, or Abetting Waging Of War, Against the
Government of India.6

The action of rising against the state or the authority has always been seen as a symbol of treason
of highest order. Any action, whether it is a preparation or abetment or attempt to wage war and

4
Rylands v. Fletcher (1868) LR 3 HL 330
5
Section 11 of the Indian Penal Code – ―Person" - The word "person" includes any Company or Association or
body of persons, whether incorporated or not.
6
Section 121 of the Indian Penal Code - Waging, or attempting to wage war, or abetting waging of war, against the
Government of India.—Whoever wages war against the 2[Government of India], or attempts to wage such war, or
abets the waging of such war, shall be punished with death, or 3[imprisonment for life] 4[and shall also be liable to
fine].

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if it creates chaos against a government, has to be nipped in the bud despite the factor of whether
the offender had the intention to do so or not. The action speaks of this offense. This offense has
been included in this code because a person should be self-evaluative of his action before doing
it. Sometimes the action does harm to such a large extent that the injury is beyond repair. It is
immaterial if the intention was to do so or not. This offense is considered as a very serious
offense as it has been provided with the death penalty as the highest punishment for such crime.

Section 124 A: Sedition7

The law of sedition in India has been attributed as a controversial offence largely because of its
strict curtail on the constitutional provision of freedom of speech and expression guaranteed as a
fundamental right under Article 19 (1) (i) of the Constitution of India. This law is stated in
Section 124 Aand 153Aof the Indian Penal Code, 1860 and in other statutes. This offense is
based on the principle that state should have the power to punish the offenders who by their
actions jeopardize the equilibrium and safety of the state or lead to disruption of public order.
The very existence of state will be in danger is such actions are not curbed in their initial stages.
Thus, the doctrine of mens rea cannot be applied in such crimes. Mere actus reus is sufficient to
hold such offender liable for the offense of sedition.

Section 268: Public Nuisance8

This is recognition of the civil principle which states that one can enjoy his or her own property
but cannot injure the right of another at the time of enjoyment of his right. This means one

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Section 124A of the Indian Penal Code - Sedition.—Whoever by words, either spoken or written, or by signs, or by
visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to
excite disaffection towards, 13*** the Government established by law in 14[India], 15*** shall be punished with
16[imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to
which fine may be added, or with fine.
Explanation 1.—The expression ―disaffection‖ includes disloyalty and all feelings of enmity.
Explanation 2.—Comments expressing disapprobation of the measures of the Government with a view to obtain
their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not
constitute an offence under this section.
Explanation 3.—Comments expressing disapprobation of the administrative or other action of the Government
without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this
section.]
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Section 268 of the Indian Penal Code - Public nuisance.—A person is guilty of a public nuisance who does any act
or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the
people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction,
danger or annoyance to persons who may have occasion to use any public right.
A common nuisance is not excused on the ground that it causes some convenience or advantage.

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should exercise his right vis-a- vis his duty of non- interference in other's right. It does not matter
if you intended to create such nuisance or not. You will be held responsible for such nuisance if
you have caused common injury, danger or annoyance to the public or people at large with
regard to their public rights. Intention here plays no role. You will be strictly liable for your
action only. The guilty intention will be presumed.

Section 375: Rape

The second exception to this provision lays down the concept of statutory rape in case of a man
having sexual intercourse with his wife below the age of 15 years even with her consent will be
held responsible for the offense of rape. It is immaterial whether the man intended so or not. The
mens rea or guilty intention is presumed here. By virtue of his act of having intercourse with her
wife below the age of 15 years, he is liable for the said offense.

Further, in the same provision, the sixth description states that even if a female is consenting
completely for the sexual act but is below the age of 18 years, then the consensual sexual act will
be molded as an instance of statutory rape. It will rape because the statute declares it to be so. It
does not matter if the parties have the guilty intention or not. Even a genuine sexual act on a
bonafide relationship can also amount to rape because of the provision.

OTHER STATUTORY PROVISIONS-


Apart from the above provisions, there are some statutes which impose strict liability principle.
Such statutes have been passed in the interest of the public. Example; the Motor Vehicle Act, the
Arms Act, the Narcotic Drugs and Psychotropic substances act, 1985, the Public Liability
Insurance Act, 1991, etc. The Halsbury Laws of England states that if there is silence about the
element of mens rea in any statutory crime, then there is a presumption of essentiality of mens
rea. However, such presumption is not a conclusive one. It can be rebutted either by the terms of
the provision or statute or by the subject matter with which it deals. The legislative intention
behind such presumption is that a man should not be held absolutely responsible for his acts or
omissions just because the statute says so. The presumption has to be established. In the case of
State of Maharashtra v. M. H. George,9 it was held that ―Merely because a statute deals with a
grave social evil is not sufficient to infer strict liability, it must also be seen that whether

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State of Maharashtra v. M. H. George AIR 1965 SC 722.

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imposition of strict liability would assist in the enforcement of the regulations. Unless this is so,
there is no reason in penalizing him and cannot be inferred that the legislature imposed strict
liability merely in order to find a luckless victim.‖ Finally, the court decided that when the
accused was held loaded with gold bars in his jacket beyond the limit allowed under the
provisions of FERA, 1947, the doctrine of mens rea cannot be applied here. The object and
purpose of the Act will be defeated if the accused is allowed to take the plea of ignorance of the
law and validate his action accordingly. Even the ignorance of the law is not allowed as a valid
defense.

According to Sir J. Stephens, the doctrine of mens rea is misleading as the doctrine originated
when criminal law practically dealt with offenses which were not defined. In the present
scenario, however, every crime is defined precisely. The elements of the crime are clearly
marked in such provisions. So it can be easily carved out as to which offenses require clear
mentioning and proving of mens rea and which offenses have to be presumed to have mens rea
implied in it.

ANALYSIS
There is, however, need for public sanction calculated to secure enforcement in situations where
it would be impolitic or unjust to condemn the conduct involved as criminal. In our view, the
proper way to satisfy that need is to use a category of non-criminal offence, for which the
sentence authorized upon conviction does not exceed a fine or fine and forfeiture or other civil
penalty, such, for example, as the cancellation or suspension of a license. This plan, it is
believed, will serve the legitimate needs of enforcement without diluting the concept of crime or
authorizing the abusive use of sanctions of imprisonment. It should, moreover, prove to be of
great assistance in dealing with the problem of strict liability as a phenomenon of such pervasive
scope in modern regulatory legislation. Abrogation of such liability may be impolitic but
authorisation of a sentence of imprisonment when the defendant, by hypothesis, has acted
without fault seems wholly indefensible. Reducing strict liability offences to the grade of
violations may, therefore, be the right solution.

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CONCLUSION
A man should be held liable for the actions that he intended to do. The liability in criminal law
always arises when there are both elements of criminal liability, i.e., actus reus and mens rea. But
the inclusion of the principle of strict liability in the provisions of the Indian Penal Code, 1860
also holds the person liable criminally even if that man has not intended a particular act which
has been prohibited by law. Just by virtue of that act being committed by him, he is held
responsible. However, the principle of strict liability is different from absolute liability. In case
of offenses of strict liability, the element of mens rea is presumed, and it need not be proved. The
intent of the legislators behind taking up this principle in our penal code was that a perpetrator of
offense should not escape from the clutches of the Criminal Law System just because he did not
intend to do so because of his mere callousness or lack of awareness. One should always be
vigilant about his action. You should not simply exercise your rights without any care being
taken by you towards the preservation of other's right in society.

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REFERENCES
1. J. W. C. Turner, Kenny‘s outlines of Criminal Law 19 ed. 1966, Cambridge University
Press, Cambridge, United Kingdom.
2. S. James, History of Criminal Law of England, 2, (1883).
3. Russell on Crime, (20 ed.), (1961).
4. K. W. Simons, When is Strict Criminal Liability just?, The Journal of Criminal Law and
Criminology, (1997) 87(4) U.S.A.
5. R. A. Wasserstrom, Strict Liability in the Criminal Law, Stanford Law Review, (1960)
12(4) U.S.A.
6. J. Hall, General Principles of Criminal Law, (2nd ed.), (1960).
7. Strict Responsibility: Essays on the Indian Penal Code, Indian Law Institute, (1962),
8. KD. Gaur, Criminal Law: cases and materials, (18th ed.), (2015) Haryana, India:
LexisNexis.

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