Judiciary should not show undue sympathy towards criminals

Balakumar Rajendran

Supreme Court has held that the judiciary must not show undue sympathy towards the criminals while awarding the sentence as this would ruin the public trust on laws and judiciary. If the courts lose the basic trust of the society there would be no tranquillity and faith in the Indian legal system. There would be pandemonium proliferating throughout the society.

The law of nature has it that every individual is a combination of both the good and the wicked spirit and thus wicked spirit is chastened only by law. It can be illustrated with one example. The government provides tax supported programs to benefit citizens, in the field of academics. Every human being has a choice t either avail these benefits or drop out of school, and fall prey to all the unlawful activities thus becoming a threat to the society by indulging in criminal activities. The law will chasten these individuals by way of punishment.

It becomes an obligatory function of the judiciary to provide punishment in the event of a wrong doing and for this, criminals have to be awarded punishment based on the nature of the offence and sympathy should never be brought in as it would in-turn melt the sovereignty of the Law. Awarding justice without considering undue sympathy will only protect the public.

In our day to day lives we often come across many crimes and offences being committed in the community. For instance if we talk about rape, we daily come across such heinous crimes being committed in almost every nook and corner of the country.  However, the Nirbhaya gang-rape case that occurred on 16th December 2012 alarmed the whole country. This case becomes very important if we are to analyse the concept of justice with no emotions attached to it. It was Mens Rea or the guilty intention and wilfulness of committing the crime that made the bench award capital punishment for all the four convicts without taking into consideration the aspect of sympathy. This case clearly illustrates why a judgment should not be given on the grounds of sympathy towards the criminals.  These convicts were convicted for besides murder, for offences like gang rape, unnatural offences, attempt to murder, dacoity (robbery by armed gang), and destruction of evidence, conspiracy, kidnapping and various other offences.

The entire legal system functions on the aim of providing and promoting justice. Justice, the sole aim of the Indian judiciary can only be attained if there is no sympathy and emotions attached to it. If we were to bring in the concept of sympathy, the very essence of our legal system shall crumble right before our eyes. Thus, the judiciary made a right move by destroying the dimension of sympathy while awarding sentences.

Analysis of Corporate Criminal Liability in India

Sibani Panda, Research Associate

A company can only act through human beings and a human being who commits an offence on account of or for the benefit of a company will be responsible for that offence himself. The importance of incorporation is that it makes the company itself liable in certain circumstances, as well as the human beings – Glanville Williams

Corporations are considered to be an integral part of the society. Besides the governmental agencies, the corporations are deemed to be the effective agents of action in our society.  But, corporations, as it is understood today, have not been same in the past. But over a period of time, the development of the society has had a direct influence on the structure and functions of the corporation. This had led to an ever increasing demand for the law to recognize the change and suit its applications ((Balakrishnan. K; “Corporate Criminal Liability – Evolution of the concept” (1998) Cochin University Law Review p.255)). Over the last few decades, lot of complexities has evolved in the corporate sector because of globalization and privatization of different kind of business entities all over the world. The word ‘Corporation’ has no strictly technical or legal meaning ((Stanley, Re [1906] 1 Ch. 131)). It may be described to imply an association of persons for some common object. The purposes for which people may associate themselves are multifarious and includes economic and non- economic objectives. But in common parlance, the word ‘corporation’ is normally reserved for those associated for economic purposes, i.e., to carry on a business for gain. A corporation is an artificial entity that the law treats as having its own legal personality, separate from and independent of the persons who make up the corporation ((Salomon v. Salomon (1897) AC 22)). A corporation has an independent existence which is separate from the shareholders constituting it. The corporations are run by natural persons and these people’s actions can be criminal in nature and can sometimes even result in great economical as well as human loss to the society.

CRIMINAL LIABILITY: THE CONCEPT

Criminal Liability is only attached to those acts in which there is violation of Criminal Law ((Abhishek Anand, Holding Corporations Directly Responsible For Their Criminal Acts: An Argument, www.manupatra.com)). The basic rule of criminal liability revolves around the basic Latin maxim actus non facit reum, nisi mens sit rea which means in order to make a person or entity criminally liable, it is required to establish that an act or omission has been committed which is forbidden by law and it has been done with guilty mind. So every crime constitutes two elements ((Russell, W.O., Russell on Crime p.17-51 (J.W.C. Turner Ed., New Delhi; Universal Law Publishing Pvt., 2001).  )):

  • Actus reus: Actus reus connotes those result of human conduct which is forbidden by law and hence constitutes of Human action; result of conduct and act prohibited by law.
  • Mens rea. On the other hand, mens rea is generally considered as blame worthy mental condition.

CONCEPT OF CORPORATE CRIMINAL LIABILITY:

Corporations play a significant role in creating and regulating the business activities and also in managing the lives of the common people, as a result of which, the modern criminal law systems overlooked the possibility of holding the corporations criminally liable for the commission of a criminal offence.

The doctrine of corporate criminal liability turned from its infancy to almost a prevailing rule ((Thiyagarajan, T. Sivananthan; “Corporate Criminality-concept”, available at: http://www.manupatra.com/Articles/artlist.asp?s=Corporate/Commercial)). It is very difficult to define corporate criminal liability in the present day scenario as it covers wide range of offences. However for understanding its purpose, it can be defined as an illegal act of omission or commission, punishable by criminal sanction committed by an individual or group of individuals in the course of their occupation ((Williams, K.S.; “Text Book on Criminology”, Universal Law Publishing Pvt., New Delhi, 2001, p.64)).  It can be even defined as socially injurious acts committed in course of occupations by people who are managing the affairs of the company to further their business interest ((Siegal, L.J.; “Criminology” , Wadsworth/ Thomson Learning, London, 2000, pp.398-99)). Corporate criminal liability also represents a kind of instrumentalities through which the trust of the people continues to be betrayed by persons in positions of responsibility, authority and power in the business sector. Corporate crime has been defined as “the conduct of a corporation or of employees acting on behalf of a corporation, which is prescribed and punishable by law ((Braithwaite, John ; Corporate Crime in the Pharmaceutical Industry, 1st Edition, Routledge and Kegan Paul, London, 1984, p.6.)).” Thus the “Corporate criminal Liability” refers to the imposition of criminal liability on either the corporation or its employees and agents and it is also referred to as white-collar crime.

ORIGIN OF CORPORATE CRIMINAL LIABILITY

During the early sixteenth and seventeenth centuries, the general notion was that corporations could not be held criminally liable. In the early 1700s, corporate criminal liability faced four obstacles:

  • First obstacle was attributing acts to a juristic fiction, the corporation. During Eighteenth-century, courts and legal thinkers approached corporate liability with an obsessive focus on theories of corporate personality; a more pragmatic approach was not developed until the twentieth century.
  • The second obstacle was that legal thinkers did not believe corporations could possess the moral blameworthiness necessary to commit crimes of intent.
  • The third obstacle was the ultra vires doctrine, under which the courts would not hold corporations accountable for acts, such as crimes, that were not provided for in their charters.
  • The fourth obstacle was court’s literal understanding of criminal procedure; for e.g. the Judges required the accused to be brought physically before the court ((V.S. Khanna, Corporate Criminal Liability: What Purpose Does It Serve?, 109 Harv. L. Rev. 1477; Beck & O’Brien, Corporate Criminal Liability, 37 American Criminal Law Review 261; Reinier H. Kraakman, Corporate Liability Strategies and the Costs of Legal Controls, 93 Yale L.J. 857, 857-58 (1984).)).

In the modern era, the activities of the corporations has had a tremendous impact on the society and it has also helped in the development of the society to a large extent  but at times, the activities of the corporation has also been proved disastrous to the society which then falls under the category of corporate crimes. Despite those disastrous activities of the corporations, the law was not willing to impose criminal liability upon corporations because ((Zee Tele films Ltd. v. Sahara India Co. Corporation Ltd., 2001 (3) Recent Criminal Reports (Criminal) 292; Motorola Inc. v. UOI, 2004 Cri LJ 1576)):

  • Corporations cannot have the mens rea or the guilty mind to commit an offence;
  • Corporations cannot be imprisoned.

Even the common law did not impose criminal liability on corporations because it was based on the belief that a corporation lacked moral blameworthiness and the requisite mens rea, which is an essential element of a crime. Further, the thought that was prevalent was that a corporate has ‘no soul to damn and no body to kick’. But from the early 20th century onwards, the importance of the criminal liability of the corporation was recognized by various courts.

THEORIES OF CORPORATE CRIMINAL LIABILITY

  • Theory of Vicarious Liability – The doctrine of vicarious liability recognizes that a person may be bound to answer for the acts of another. Similarly in the case of corporations, the company may be liable for the acts of its employees, agents, or any person for whom it is responsible. The traditional theory of vicarious liability holds the master liable for the acts of the servant in the course of the master’s business without proof of any personal fault on the part of the master.
  • Identification theory– In this theory, the corporations are held criminally liable for true crimes and regulatory offences. This theory recognizes that the acts and state of mind of certain senior officers in a corporation are the directing minds of the corporation and thus deemed to be the acts and state of mind of the corporation itself. The corporation is considered to be directly liable under this theory.
  • Aggregation Theory- – Under the aggregation theory, the corporation aggregates the composite knowledge of different officers in order to determine liability. The company aggregates all the acts and mental elements of the important or relevant persons within the company to establish whether in toto they would amount to a crime if they had all been committed by one person.180 According to Celia Wells, aggregation of employees’ knowledge means that corporate culpability does not have to be contingent on one individual employee’s satisfying the relevant culpability criterion ((Celia Wells, Corporations and Criminal Responsibility, 2nd ed. (Oxford: Oxford University Press, 2001) p. 156.)).

POSITION OF CORPORATE CRIMINAL LIABLITY IN INDIA:

Until recently, courts in India were hesitant to attribute criminal liability to a company for an offence that required a criminal intent and they were of the opinion that they could not prosecute companies for offences that entailed a mandatory sentence of imprisonment because the corporations could not be criminally prosecuted for offenses requiring mens rea as they could not possess the requisite mens rea.

In A. K. Khosla v. S. Venkatesan ((A. K. Khosla v. S. Venkatesan  (1992) Cr.L.J. 1448)), two corporations were charged for committing fraud under the Indian Penal Code. The Magistrate issued orders against the corporations and the Court observed that in order to prosecute corporate bodies, there were two pre-requisites, the first being that of mens rea and the other being the ability to impose the mandatory sentence of imprisonment. A corporate body could not be said to have the necessary mens rea , nor can it be sentenced to imprisonment as it has no physical body.

In Oswal Vanaspati & Allied Industries v. State of U.P. ((1993 1 Comp LJ 172)), the Full Bench of the Allahabad High Court held that a company being a juristic person cannot obviously be sentenced to imprisonment as it cannot suffer imprisonment.

In Zee Tele films Ltd. v. Sahara India Co. Corp. Ltd ((2004 Cri LJ 1576))., the court dismissed a complaint which was filed against Zee Tele films under Section 500 of the IPC. In this case, it was alleged that Zee had telecasted a program which was based on falsehood and thereby defamed Sahara India. The court held that mens rea was one of the essential elements of the offense of criminal defamation and that a company could not have the requisite mens rea.

In Motorola Inc. v. Union of India ((Motorola Inc. v. Union of India,(2004) Cri.L.J. 1576)), the Bombay High Court quashed a proceeding against a corporation for alleged cheating and the court concluded that it was impossible for a corporation to form the requisite mens rea, which was the essential ingredient of the offense. Thus, the corporation could not be prosecuted for cheating under section 420 of the IPC.

In the case of The Assistant Commissioner, Assessment-II, Bangalore & Ors.  v. Velliappa Textiles ((The Assistant Commissioner, Assessment-II, Bangalore & Ors.  V. Velliappa Textiles, (2004) 1 Comp. L.J. 21)), a private company was prosecuted for violation of certain sections under the Income Tax Act. Sections 276-C and 277 of the Income Tax Act provided for a sentence of imprisonment and a fine in the event of a violation. The Supreme Court held that the respondent company could not be prosecuted for offenses under certain sections of the Income Tax Act because each of these sections required the imposition of a mandatory term of imprisonment coupled with a fine and the court could not only impose fine on the corporation. After strict interpretation, the Court held that a corporation did not have a physical body to be imprisoned and therefore could not be sentenced to imprisonment. The Court also noted that while interpreting a penal statute, if more than one view is possible, the court is obliged to lean in favor of the construction that exempts an accused from penalty rather than the one that imposes the penalty.

In MV Javali v. Mahajan Borewell & Co and Ors ((AIR 1997 SC 3964))where the Supreme Court held that mandatory sentence of imprisonment and fine is to be imposed where it can be imposed, but where it cannot be imposed ,namely on a company then fine will be the only punishment.

Thus the Indian courts never felt about inclusion of company on certain criminal liability.

The legal difficulty arising out of the above situation was noticed by the Law Commission and in the 41st Report of Law commission of India, the Law Commission suggested amendment to Section 62 of the Indian Penal Code by adding the following lines:

  • “In every case in which the offence is only punishable with imprisonment or with imprisonment and fine and the offender is a company or other body corporate or an association of individuals, it shall be competent to the court to sentence such offender to fine only.”
  •  In every case in which the offense is punishable with imprisonment and any other punishment not being fine and the offender is a corporation, it shall be competent to the court to sentence such offender to fine.
  •  In this section, “corporation” means an incorporated company or other body corporate, and includes a firm and other association of individuals.

But this bill prepared on the basis of the recommendations of the law commission lapsed and it did not become law. However few of these recommendations were accepted by parliament and by suitable amendment some of the provisions in the taxation statutes were amended. The Law Commission has tried consistently to find a formula which would solve the problem of fixing appropriate punishment for the Corporations which commit offences; this has been done with a view to punish a corporation where mandatory minimum punishment is both punishment and fine, in such a case it needs to be fixed as to how the law courts would advance if this question comes up before them.

But the view of the courts on corporate criminal liability was changed in a landmark case of Standard Chartered Bank and Ors. v. Directorate of Enforcement (([2005] 4 SCC 530)). In this case, Standard Chartered Bank was prosecuted for the alleged violation of certain provisions of the Foreign Exchange Regulation Act, 1973 and the Supreme Court did not go by the literal and strict interpretation rule required to be done for the penal statutes and held that the corporation could be prosecuted and punished with fines, regardless of the mandatory punishment required under the respective statute. The Court observed that all the penal statutes are to be strictly construed in the sense that the Court must see that the thing charged as an offence is within the plain meaning of the words used and must not strain the words on any notion that there has been a slip that the thing is so clearly within the mischief that it must have been intended to be included and would have included if thought of ((Tolaram Relumal and Anr. v. The State of Bombay MANU/SC/0057/1954)).

After the decision of the Standard chartered bank case, the courts were generally of the view that the companies won’t be exempted from prosecution merely because the prosecution is in respect of offences for which punishment prescribed is a mandatory imprisonment.

In Iridium India Telecom Ltd. v. Motorola Incorporated and Ors ((AIR 2011 SC 20)), the Hon’ble Supreme court held that a corporation is virtually in the same position as any individual and may be convicted under common law as well as statutory offences including those requiring mens rea. The criminal liability of a corporation would arise when an offence is committed in relation to the business of the corporation by a person or body of persons in control of its affairs. In such circumstances, it would be necessary to ascertain that the degree and control of the person or body of persons is so intense that a corporation may be said to think and act through the person or the body of persons. In this case, it was also held that the corporations can no longer claim immunity from criminal prosecution on the grounds that they are incapable of possessing the necessary mens rea for the commission of criminal offences.

In CBI v. M/s Blue-Sky Tie-up Ltd and Ors ((CBI v. M/s Blue-Sky Tie-up Ltd and Ors ,Crl. Appeal No(s). 950 of 2004)), an appeal arose from criminal application which was quashed by the Calcutta High Court. The Appellant filed criminal applications against the respondents for committing criminal offences under the provisions of the Indian Penal Code and under Section 13(2) read with 13(1)(c) and (d) of the Prevention of Corruption Act, 1988. Pursuant to that, the Respondents filed applications under Section 482 of the Criminal Procedure Code for quashing of the said proceedings. The Calcutta HC quashed the proceedings against the Respondent No. 1 on the false premise that the company being a body corporate cannot be prosecuted, but the Supreme Court held that the companies are liable to be prosecuted for criminal offences and fines may be imposed on the companies.

The criminal intent of the ‘alter ego’ of the company or corporate body, i.e. the person or group of people that guide the business of the company would be imputed to the corporation. It is now an established legal position in India that a corporation can be convicted of offences that require possession of a criminal intent, and that corporation cannot escape liability for a criminal offence, merely because the punishment prescribed is ‘imprisonment and fine’.

But it is always a controversial issue that Corporations cannot be sentenced to imprisonment and since, there is no explicit provision relating to it, the Supreme court  have held in various cases that it is better to impose fine upon the corporation even in the cases where there is a punishment for imprisonment. The imposition of fines may be made in four different ways as provided in the IPC. It is the sole punishment for certain offences and the limit of maximum fine has been laid down; in certain cases, it is an alternative punishment but the amount is limited; in certain offences, it is imperative to impose fine in addition to some other punishment and in some it is obligatory to impose fine but no pecuniary limit is laid down ((Angira Singhvi ,”Corporate Crime and Sentencing in India: Required Amendments in Law”, International Journal of Criminal Justice Sciences ,Vol 1 Issue.2 July 2006)). Section 357, Cr PC, empowers a Court imposing a punishment of fine or a sentence of which fine forms a part, to order payment of compensation, out of the fine recovered, to a person for any loss or injury caused to him by the offence.

Even the environmental degradation arising out of industrial pollution in recent years has become a positive danger to social security. Thus, Legal provisions have been incorporated in the Indian Penal Code ((Indian Penal Code, 1860 S. 277. Fouling water of public spring or reservoir: Whoever voluntarily corrupts or fouls the water of any public spring or reservoir, so as to render it less fit for the purpose for which it is ordinarily used, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.)), to punish industrial and business organizations which pose danger to public life by polluting water ((Water Pollution (Amendment) Act,1978)), and District Magistrate can initiate proceedings against them under Section 133 of the code of Criminal Procedure, 1973.

Section 16 of Environment (Protection) Act, 1986 and Section 47(2) of the Water (Prevention and Control Pollution) Act, 1974 also explicitly lays down provision for the offences by companies. It states companies can be prosecuted under certain circumstances and thus, reflects the concept of vicarious criminal liability.

Corporate liability may appear incompatible with the aim of deterrence because a corporation is a fictional legal entity and thus cannot itself be “deterred.” In reality, the law aims to deter the unlawful acts or omissions of a corporation’s agents. To defend corporate liability in deterrence terms, one must show that it deters corporate managers or employees better than does direct individual liability ((Lewis A. Kornhauser , An Economic Analysis of the Choice Between Enterprise and Personal Liability for Accidents, 70 CAL. L. REV. 1345 passim (1982).)).

CONCLUSION:

At one point of time, the concept of a separate legal personality of a corporation was exploited by individuals to evade personal liability. But now it is well established that a corporation cannot escape liability for offences simply on the basis that they have no body or soul and cannot possess any mental state. The statutes in India are not in pace with these developments and they do not make corporations criminally liable and even if they do so, the statutes impose no other punishments except for fines. The laws relating to corporate criminal liability in India are vastly insufficient. The legislature needs to be active in this regard and form certain concrete laws which would ensure that the corporations do not go unpunished and a better social order needs to be established. Certain Provisions relating to procedural law also needs to be created and modified so that the corporations can be adequately dealt with. It is therefore recommended that amendments should be carried out by the legislature to avoid the judiciary from defining the law and make certain provisions relating to procedural laws so that the corporations can be adequately dealt with and the courts are also required to make the statutes fit for strict interpretation by providing for infliction of criminal liability on the corporations as also providing for various kinds of punishments apart from fines only.

Principles of Criminal Liability

Ria Tandon, Research Associate

Criminal liability has been defined by lexicon dictionary as something wherein there is accountability and responsibility to another by the ways of legal criminal sanction ((The Lexicon, 3 rd edition)). Through this paper we are trying to understand the principles of criminal liability. Criminal guilt would attack the violator of the criminal law. However it is a very well known fact that the rule is not absolute in nature and there are some restriction the above mentioned explanation and that is the latin maxim , actus non facit reium, nisi mens sit rea ((The act itself does not make a man guilty, unless his intentions were so. The earliest trace of the maxim can be found in St Augutine’s Sermon No 118.02, where it is stated as reum linguam non facit , nisi mens rea cited in Pollock and Maitland, I I,476n; see Flower v Padget(1789) 7 TR 509; The intent and the act must concur to constitute a crime,’ per Lord Keyon CJ in Younghusband v Luffing [ 1949] 2 KB 354)). It means that no crime without the guilty mind ((Russell on crime , vol I, 12 th ed, 1964, pp 22-60. In the past , criminal liability was mental attitude .However , in cases of self- defence (defendo) and accident (per infortium), the King used to pardon the accused)).

The first principle of criminal liability or responsibility is the requisite of an act-the actus reus. The actus reus combines ((Chandrasekharan Pillai, K. N, 2007, General Principles of Criminal Law, pp. 130, Eastern Book Company))both the act and the intention of the person who commits the crime. Unless the evil thoughts which take place in the form of an action will only make law take cognizance to it.

PRINCIPLES OF CRIMINAL LIABILITY

The various examples of criminal liability are as follows:

(1) ACTUS REUS

The word actus connotes the term “deed” which basically means the action which is in physical result of the human conduct. The word “reus is defined to be something which is the result of human conduct on which law seeks imposes restrictions so as to prevent ((Kenny’s Outlines of Criminal Law, 19 th ed, JWC Turner, p 17.))it. Actus reus is made up of three constituents as follows:

(1) Conduct – Human action which is prohibited by law

(2) The result of this act , in a particular circumstances is designated as injury.

(3) Such act should be prohibited by law

Conduct – An act is defined to be an event which would be subject to the restrictions of that will ((Moard and Kadish, Criminal Law and its Process, 1962, p212.))of a person. In other words this act would be something which would be under the total control of the human being for example when a person moves his/ her hand rashly, is walking or speaking or this is considered to be the external manifestation of one’s mind. When we see the idea of conduct broadly then the human action includes both omission ((See Indian Penl Code 1860, s 32))and commission acts. When a person’s criminal liability has to be analyzed in the following ways:

(a) the origin of it in some mental or bodily activity which is a willed movement or omission.

(b) Circumstances of the act

(c) And its consequences ((See Monard and Kadish , Criminal law and its Process , p 213)).

For say take an example where there are two people A and b . Where A shoots B with a rifle where three things are seen (1) origin of the primary stage , namely the muscular contraction where the trigger is pulled (2) the circumstances like where the rifle is loaded and is in working order , the person who needs to to be killed should be in a range (3) the consequence of that act like in this case the fall of the tigger , explosion of the powder , the discharge of the and the death of the victim. Hence all these statement can be compacted in the statement as ‘ A killed B’ which consists of” an act ((See Indian Penal Code 1860, s 33. The word ‘act’ denotes as well a series of acts as a single act; the word omission denotes as well a single omission)).”

Acts which are Prohibited by Law – An act whoever apprehensible it may be unless until it is prohibited by the statute of law. Criminal acts are those only which fall under the ambit of crime under Law.

When we talk with reference to section 43 of the Indian Penal Code  talks about the legal duty which a person is committed to a duty but fails to comply with it or omits to do since he or she is “legally bound to ((See Indian Penal Code 1860, s 43)).” For say when there is a jailor under whose surveillance  a prisoners dies hence in this case he would be amounted to an illegal omission for not discharging his legal obligation of providing meals to the prisoners ((See Om Prakash v State of Punjab AIR 1961 SC 1782)).

Result of Conduct

For an act to be a crime there should always be an end result which is brought about by the Human conduct.  Actus reus is basically the end result of a human conduct and is an event. For say a death occurs by a person X so here death is result of the conduct of the accused person X .  In other words crime is something which happens because of the event and not because of an activity like shooting, stabbing, poisoning etc which might have caused the death of the person Once the desired act is done that is what all matters when we look at the  act of crime except that when we need to access the criminal liability. For say we take an example where A fires ((KD Gaur, Criminal Law: Cases and Materials, 5 th ed.))at B in order to kill him but B get minimal injury hence in this case the aspect of murder will not come into being a in this but the attempt to murder is something which will be regarded here.

MENS REA

The principle of mens rea explains the mental state which ((Chandrasekharan Pillai K.N , General Principles of Criminal Law , pp 137.))is required for accessing the criminal liability. It consists of intention, knowledge, or even the absence of even one of them negatives the contention of a crime ((Stephen James, History of Criminal Law of England, vol II, 1883, pp 94-95; Smith and Hogan, Criminal Law, 5 th ed, 1983, pp 47-48; Essay on the Indian Penal Code, Indian Law Institute, 1962, pp 56-62.’ Annual Survey of the Indian Law’, 1963, Indian Law Institute, p 499; KM Perkins, ‘ A Rationale of Mens Rea’, Harvard Law Review, no 52, 1938-39, p905; ‘ Mental Element’ , Harvard Law Review, no 74, 1960-61, p 779, Harvard Law Review,no 75, 1960-61, pp 17-21)). No act is considered to be criminal unless and until it is done with a guilty mind.

Later on two tests were evolved which determined the mens rea. Firstly whether the act in question was a voluntary act or not and secondly whether the accused could for see the consequences of his conduct ((Jerome Hali, General Principles of Criminal Law, 2 nd ed, 1960, pp 70-77; Deylin, Statutory Offence’, (1938) 4 JSPTL. Mens rea consists of two elements- first , the intent to do an act and secondly, the knowledge of the circumstances that makes that act a criminal offence)).

If we speak generally with reference to mens rea then the commentators accept four mental states which are ((Chandrasekharan Pillai K.N, General Principles Of Criminal Law, pp-137));

(1)   General Intent– This talks about the principle of actus reus wherein it sees the intent of the crime to be committed. For say in rape, sexual penetration is the deed which is done.

(2)   Specific intent–  Besides the normal intention on carrying with the act it is necessary to something in addition to that of actus reus . For example if person breaks into a house with the purpose of theft and in addition to that taking and carrying away is the orocess adopted.

(3)   Transferred Malice-In cases where the offender hurts another person instead of the one he intends to hurt. In such cases the offender is held to be liable for his offence even though the should be person of attack did not get hurt.  The malice of the actual intended victim sifts for the one who is the victim. The transfer does not take place if intent to commit a particular harm is not same. This was made clear through the case of Kurien V. State ((1975 KLT 748)).

(4)   Constructive Intent – In this case we consider not just the intention of committing harm but we look at the knowledge of the offender of the high risk of the injury because of that action In situation where a reckless act happens the person who forsees ((KD Gaur, Crimial Law: Cases and Materials, 5 th ed, pp-46))that consequences are possible because of his conduct but in turns he acts without any intention or desire to bring them in action.  There is only probability of his seeing and not desires it or foresees it. Recklessness is basically “an attitude of mental indifference to obvious risk ((Hudston v Viney [1921] 1 Ch 98)).”

CRIMINAL LIABILITY AND STATUTORY OFFENCES

Statutory Offences

An offence is basically considered to be a violation of the law. Offence is considered to be wrong in the Penal Code. The Code of the Criminal Procedure , 1973 defines offence as any act or omission ((See Criminal Procedure Code, 1973.))which is punishable under any law . The offences which are created by different statutes like taxation and national security. There are two kinds of offences such as malum in se which are inherently wrong and society recognize them as wrong. While malum prohibitum ((Available at www.legalservicesindia.com/article/mens-rea-in-statutory-offence-831-1.html))are acts which are wrong because they are prohibited by law. Statutory Offences is of need  because, it is not only the crimes which can harm the society but  also crimes like white collar crimes also harm the society. There have been many scams in the country like Harshad Mehta ((Articles.timesofindia.timesofindia.com/keyword/harshad-mehta))to 2G scam.

(a)Presumption in statutory offence which require mens rea :

 In statutory interpretation , certain presumption are taken into consideration  when by the court when interpreting the statutes.  Where there is a creation of any offence by the statute , no matter how precise the language maybe, it is taken to be understood that element of mens rea is imported in the definition of crime.

Roscoe Pond’s definition of statutory offence is that “such statutes are not meant to punish the vicious will but to put pressure on the thoughtlessness and inefficient to do their whole duty in the interest of public health or safety or morals ((Available at www.legalservicesindia.com/article/mens-rea-in-statutory-offence-831-1.html)).” The Bhopal gas tragedy brought in front of the world that the presumption of mens rea is not important but again in after Hobbs Case the courts couldn’t deny the aspect of favoring mens rea.

(b) Exception- Where mens rea is not necessary

This situation basically talks with reference to the absence of men rea for deciding a case.  There have been many cases with reference to this in India like for example in State of Maharashtra v M.H. George ((Available at Indiankanoon.org/doc/1564263))where the respondent had left for Zurich on November 27, 1962 and landed at Santa Cruz airport. He remained in plane and when he was searched it was found with gold which violated the section 8(1) of the Foreign Exchange Regulation Act, 1947 and the majority view was that there is no scope with regards to the invocation the rule of mens rea.

PRESENT STATUS QUO IN CRIMINAL LIABILITY

The mere error ((Available at Articles.timesofindia.indiatimes.com/2004-08-09/delhi/27150168_1_criminal-liability-error-doctor))of judgment which is committed by the doctor is not considered to be crime. This is the latest Supreme Court judgment of India Only when the error is rash that it turns to be fatal then in that case it would be regarded as a criminal liability. In criminal law something which has criminal intention attached to it then only it is considered to a crime but if the act is seen then it being fatal needs to be explained.

Aged society members are also held to be liable for criminal liability.  This was the latest judgment by the Bombay High Court with reference to the case where there was lapses ((Articles.timesofindia.indiatimes.com/2013-05-23/Mumbai/39474813_1_jolly-maker-i-justice-s-c-dharmadhikari-fire-safety-equipment))in maintain fire safety equipments.

CONCLUSION

Through this paper it can be concluded that both actus reus and mens rea are important when we further proceed with reference to the measuring the criminal liability of a person. In actus reus the deed is very important for act to make a person liable for crime while and is guided by three principles firstly the muscle contraction showing action, circumstances and the intensity of the hurt. When we talk with reference to mens rea then we have defined the three types but the end results same that intention is of prime value. In statutory offences we talk about the crime which harm the society and how the criminal liability is when mens rea is present in one while absent in another.

Components of Crime: Mens Rea and Actus Reus

Author: Aviral Umrao, Research Associate

The general basis for imposing liability in criminal law is that the defendant must be proved to have committed a guilty act whilst having had a guilty state of mind. The physical elements are collectively called as Actus reus. And the accompanied mental state is called the Mens rea. In order to commit a crime an actor must possess both Mens rea and Actus reus. That is, an act is not guilty unless the mental state by which it was commissioned is also guilty. The crime is the combination of both, and is a single unity.

Mens rea:

Mens rea is a legal phrase used to describe the mental state a person must have been in while committing a crime for it to be intentional. It can refer to a general intent to break the law or a specific, premeditated plan to commit a particular offense. To convict an accused person of a wrong doing, a criminal prosecutor must show beyond any reasonable doubt that the suspect actively and knowingly participated in a crime that harmed another person or their property ((ASHWORTH, ANDREW. Principles of Criminal Law. 2 ed. Oxford: Clarendon Law Series, 1995.)).

To put it simply, Mens rea determines whether someone committed a criminal deed purposefully or accidentally. This idea commonly applies to murder cases. The perpetrators’ Mens rea, or mental state at the time of the killing, is an essential factor in whether they will be declared guilty or innocent. In order to receive a conviction, the lawyer must prove that the accused party had some intention or willingness to end the life of another person. On the other hand, if evidence shows the death to be accidental and unavoidable, the suspect must be declared innocent and set free ((OP Srivastava’s Principles of Criminal Law, EBC, fifth edition, 2010.)).

The law did not always require Mens rea for liability. Early Germanic tribes, it is suggested, imposed liability upon the causing of an injury, without regard to culpability. But this was during a period before tort law and criminal law divided. It seems likely that as the distinction between tort and crime appeared that is, as the function of compensating victims became distinguished from the function of imposing punishment, the requirement of Mens rea took on increasing importance.

The phrase “Mens rea” appears in the Leges Henrici description of perjury — reum non facit nisi Mens rea — which was taken from a sermon by St. Augustine concerning that crime. The sermon is also thought to be the source of the similar maxim in Coke’s Third Institutes, the first major study of English Criminal law: “actus non facit reum nisi mens sit rea” [the act is not guilty unless the mind is guilty] ((Paul H. Robinson, 8346 words, August 19, 1999, University of Pennsylvania Law School, Penn Law)).

Once adopted as a basic principle of criminal law, the legal meaning of Mens rea continued to evolve. The early stages of its development are illustrated by the decision in Regina v. Prince ((L.R. 2 Cr. Case. Res. 154 (1875).)). The defendant took an underage girl “out of the possession” of her father, reasonably believing she was over the age of consent. That the defendant’s conduct was generally immoral was sufficient for Lord Bramwell to find that the defendant had the Mens rea necessary for criminal liability. Lord Brett, on the other hand, would require that Prince at least have intended to do something that was criminal, not just immoral.

A somewhat more demanding requirement is expressed in Regina v. Faulkner ((13 Cox CC 550 (1877).)). In the process of stealing rum from the hold of a ship, a sailor named Faulkner accidentally set the ship afire, destroying it. Building upon Lord Brett’s conception of a more specific and demanding Mens rea, Lords Fitzgerald and Palles conclude that the Mens rea requirement means that Faulkner must have at least intended to do something criminal that might reasonably have been expected to have led to the actual harm for which he is charged. Thus, Faulkner ought not be liable for the offense of burning a ship when he intended only to steal rum from it; such conduct, in the normal course of things, does not lead one to reasonably foresee that a ship will be destroyed.

This last shift in the notion of Mens rea marks not only a dramatic increase in the demand of the requirement, but also a significant qualitative change. No longer does there exist a single Mens rea requirement for all offenses the intention to do something immoral or, later, something criminal. Now each offense has a different Mens rea requirement, the Mens rea required for the offense of burning a ship is different from the Mens rea required for the offense of theft. Liability now requires that a person intend to do something that might reasonably be expected to lead to the harm of the particular offense charged. As some have expressed it, there is no longer a Mens rea for criminal liability but rather mentes reae.

Actus reus:

Actus reus is the Latin term used to describe a criminal act. To establish Actus reus, a lawyer must prove that the accused party was responsible for a deed prohibited by criminal law. Actus reus is commonly defined as a criminal act that was the result of voluntary bodily movement. This describes a physical activity that harms another person or damages property. Anything from a physical assault or murder to the destruction of public property would qualify as an Actus reus.

Omission, as an act of criminal negligence, is another form of Actus reus. It lies on the opposite side of the spectrum from assault or murder and involves not taking an action that would have prevented injury to another person. An omission could be failing to warn others that you’ve created a dangerous situation, not feeding an infant who has been left in your care, or not completing a work related task properly which resulted in an accident. In all of these cases, the perpetrator’s failure to complete a necessary activity caused harm to others ((State v. Mercer, 165 S.E.2d 328 (N.C. 1969).)).

The exception to Actus reus is when the criminal actions are involuntary. This includes acts that occur as a result of a spasm or convulsion, any movement made while a person is asleep or unconscious, or activities participated in while an individual is under a hypnotic trance. In these scenarios a criminal deed may be done, but it is not intentional and the responsible person will not even know about it until after the fact ((People v. Beardsley 113 N.W. 1128 (Mich. 1907).)).

As far as criminal law is concerned, there are five instances under which a failure to act may result in criminal prosecution.

  1. If the defendant has a special relationship to the victim, he may have a duty to act in certain situations. The special relationships that establish the duty to act are parent/child relationships, husband/wife relationships and employer/employee relationships.
  2. There are statutory duties to act. In other words, certain states have passed statutes requiring a person to act and failure to do so will result in criminal prosecution.
  3. A private contract between two parties can generate a duty to act. This is usually the case in situations where the defendant was under a contractual duty to protect or care for someone else ((Commonwealth vs. Pestinikas, 617 A.2d 1339 (Pa. 1992).)).
  4. Where the failure to act can result in criminal prosecution is where the defendant had no legal obligation to aid the victim but he voluntarily undertook to aid the victim. In this situation, if the defendant abandons his rescue efforts and thereby leaves the victim in a condition that was worse than he would have been in had the defendant not started to help at all, the defendant can be criminally liable.
  5. Where a defendant will have the duty to aid another person if he wrongfully placed the victim in harm’s way to begin with. In this situation, failure to help the victim can result in criminal liability. For better or for worse, the law still does not impose criminal liability for an omission to act where the defendant had nothing more than a moral duty to act ((People v. Beardsley 113 N.W. 1128 (Mich. 1907).)).

Coincidence of actus reaus and Mens rea:

Every crime must be considered in two parts-the physical act of the crime (Actus reus) and the mental intent to do the crime [Mens rea] ((R v Church [1966] 1 QB 59)). Where an offence requires Mens rea the prosecution must prove that the accused had Mens rea at the time he did the act which caused the actus reaus ((Jakeman (1982) 76 Cr App R 223)). It is a general principle in criminal law that for a person’s liability to be established it must be shown that the defendant possessed the necessary Mens rea at the time the Actus reus was committed in other words the two must coincide ((Fagan v MPC [1969] 1 QB 439)). This is also known as the contemporaneity rule. In some cases a literal interpretation of this rule would manifestly lead to injustice, and the courts have developed ways of finding coincidence of Mens rea and Actus reus (a) when the events take place over a period of time ((Kaitamaki v R [1985] AC 147.)), and (b) where they constitute a course of events ((Thabo Meli v R [1954] 1 WLR 228)).

Attributing mens rea to Corporations – The Judicial Journey

Author: Tanya Agarwal, Research Associate

Criminal Law is a policy tool to regulate the undesirable conduct in the society. It is a means to an end, not an end in itself. Criminal activities are the worst sorts of behaviour that members of societies can engage in. If corporations commit some of the worst sorts of activities, then we should be entitled to label them as criminal ((Steven Bittle, Still Dying for a Living  Corporate Criminal Liability After the Westray Mine Disaster [1st edn. UCB Press 2012] 112.)). ‘Corporations’ touch every aspect of the society and hence amenability of corporation to criminal law is essential to have a peaceful society with economic stability.

 Actus Reus and Mens Rea are two elements which must concur to constitute a crime ((Lord Keyon CJ in Younghusband V. Luffing [1949] 2 KB 354; Also See Russell, W.O., Russell on Crime [12th edn. 1964] pp 22-60. In the past, criminal liability was absolute. A man was responsible for doing an act prohibited by law irrespective of mental attitude. However in cases of self defence (defendendo) and accident (per infortunium), the King used to pardon the accused.)). These elements are derived from the Latin maxim ‘reum lingum non facit, nisi mens sit rea’ ((Jerome Hall, General Principles of Criminal Law, [2nd edn.1960] pp 77-83. Also known as, actus non facit reum, nisi mens sit rea.))which reflects the fundamental principle of criminal liability. The word ‘actus reus’, may, be defined as, result of human conduct as the law seeks to prevent ((Kenny’s Outlines of Criminal Law, 19th edn. JWC Turner, p.17)).’  On the other hand, mens rea, which is a technical term is generally taken to mean some blameworthy mental condition or mind at fault, covers a wide range of mental states and conditions, the existence of which would give a criminal hue to ‘actus reus’ ((Sk. Mansuri Nizamuddin V. The State AIR 1955 Pat 330)).

In the present article, author have traced the journey of English and Indian law on role of mens rea in holding corporations liable under criminal law. This article excludes acts of corporations falling under the domain of strict liability and absolute liability as the element of mens rea does not play a dominant role in attracting criminal liability ((This happens in cases of mass destructions through pollution, gross negligence of the company resulting in widespread damages like Bhopal Gas Tragedy.)).

English Jurisprudence on criminal liability of corporates can be traced from sixteenth and seventeenth century.  During this period, corporations were deemed to have ‘no soul to damn and no body to kick ((Coffee,Jr., ‘No Soul to Damn: No Body to Kick’: An Unscandalized Inquiry into the Problem of Corporate Punishment, 79 Mich. L. Rev. 386.)).’ In 1800’s ((Citizens Life Assurance Company Ltd. V. Brown [1904] AC 423))and early 1900’s series of judgement ((Director of Public prosecutions V. Kent and Sussex Contractors [1944] I KB 146; R v ICR Haulage [1944] 30 Cr App R 31, Moore v Bresler [1944] 2 All ER 515.))slowly opened the gates for holding corporations criminally liable and finally Lord Reid in Tesco Supermarkets V. Nattrass (([1972] AC 153.))expounded the test of who the ‘directing mind and will’ of the company is. However, the development of the concept can be traced back to House of Lords decisions in 1915 entitled Lennard’s Carrying Co. Ltd V. Asiatic Petroleum Co. Ltd (([1915] AC 713)). The issue was whether the fault of a director, who was actively involved in the operation of the company, was in law the fault of the corporation. In holding that it was, Viscount Haldane laid down a general principle- the directing mind principle-for attributing fault to a corporation. Nonetheless, Tesco Supermarket’s judgement (([1972] AC 153. In this case, Tesco was prosecuted under the Trade Descriptions Act 1968 for displaying a notice indicating that goods were being offered at a price less than that at which they were actually being offered. This occurred because the manager of one of their branches had negligently failed to notice that he had run out of the low price pockets. The House of Lords held that the branch manager could not be held to embody the company as whole, which made available to Tesco a due diligence defence under section 24 of Trade Descriptions Act 1968.))has been subjected to a lot of criticism owing to its peculiar facts. It represents a crude distinction between the ‘hands’ and ‘brains’ of the company. The ‘actus reus’ of the crime is more likely to be committed at a much lower level than director level. Trying to match the ‘actus reus’ committed by a lower level employee with the mens rea of higher level employees has a certain inconsistency of approach.

The strictness of ‘directing mind and will theory’ was diluted to a certain extent in Meridian Global Funds Management Asia Ltd v Securities Commission (([1995] 3 NZLR 7. In this case, the chief investment officer of an investment company purchased substantial shares in a public issuer with the company’s authority but without director’s knowledge. No notice was given as required under New Zealand’s Securities Amendment Act, 1988. The company was held to be in breach of its duty to give notice on the basis that the chief investment officer was the directing mind and will of the company))[also known as Meridian Rule] where in the Privy Council effectively extended the class of persons who might be identified as the company. The Privy Council stated that whether an act is to be attributed to a corporation is a question of construction of the particular statute under which proceedings are brought, and that a statute may impose corporate liability in respect of an employee who could not be said to be the directing mind and will of the corporation under the company constitution. In other words, there was more than one formula under which the acts and knowledge of company officers could be attributed to a company.

The position in Tesco judgment appears to be re-instated in a recent decision R V. St. Regis Paper Co. Limited (([2011] EWCA Crim 2527 In this case employee was a technical manager who had intentionally made a false entry in a record required for environmental pollution control. The issue before Court of Appeal was whether company can also be held criminally liable for his action of employee.))the Court of Appeal held that directing mind and will of the company would normally be the board of directors, the managing director and other superior officers of the company who carry the functions of the management and spoke and acted as the company. Thus mens rea can be attributed to the corporation only when one of the controlling officers performs the alleged conduct with necessary intent.

Indian Criminal Jurisprudence recognizes that corporations are ‘persons’ for the purpose of criminal law ((Section 2 of the Indian Penal Code 1860 provides that every person shall be liable to punishment under the Code. Section 11of Indian Penal Code, 1860 defines a person as including ‘any Company or Association or body of persons, whether incorporated or not’))however the most challenging obstacle to imposing criminal liability on corporations was difficulty of attributing mens rea to an abstract, non human entity called a corporation. In 1960’s legal position in India stated that unless the statute clearly excludes mens rea in the commission of an offense, the same must be treated as an essential ingredient of the act in order for the act to be punishable with imprisonment and/or fine ((State of Maharashtra v. Mayer Hans George A.I.R. 1965 S.C. 722 ; Nathulal v. State of M.P.  A.I.R. 1966 S.C. 43.)).

Post Tesco, English Law had already seen a transition, however, Indian Courts still ruled ((A.K. Khosla V. T.S. Venkatesan (1992) Cr.LJ. 1448 ; Kalpanath rai V. State (1997) 8 S.C.C 732 In this case, a company, accused and arraigned under the Terrorists and Disruptive Activities Prevention (“TADA”) Act, was alleged to have harbored terrorists. In a bench trial, the trial court convicted the company of the offense punishable under section 3(4) of the TADA. On appeal, the Indian Supreme Court referred to the definition of the word “harbor” as provided in Section 52A of the IPC and pointed out that there was nothing in TADA. It held that held that an accused corporation could not possess the requisite mens rea, even if any terrorist had been allowed to occupy the rooms in its hotel.))that corporate body cannot be said to have requisite mens rea and therefore could not be prosecuted for offences under Indian Penal Code.  Even at the beginning of 21st Century Indian Courts in cases Zee Telefilms Ltd. v. Sahara India Co. Corp. Ltd (([2001] 3 Recent Criminal Reports 292. In this case, the court dismissed a complaint filed against Zee under Section 500 of the IPC. The complaint alleged that Zee had telecasted a program based on falsehood and thereby defamed Sahara India.))and Motorola Inc. v. UOI (([2004] Cri.L.J. 1576. In thi case, the Bombay High Court quashed a proceeding against a corporation for alleged cheating.)), held that  mens rea was one of the essential elements of the offense of criminal defamation and that a company could not have the requisite mens rea. The development process of corporate mens rea in India was slower than England.

In 2003, at last a breakthrough on this point came from Supreme Court decision in Assistant Commissioner, Assessment-ll, Banglore & Ors. v. Velliappa Textiles Ltd & Anr (([2004] 1 Comp. L.J. 21.)). Justice B.N. Srikrishna and Justice G.P. Mathur held that a company can be attributed with mens rea on the basis that those who work or are working for it have committed a crime and can be convicted in a criminal case, the judges held that the corporations are liable even where the offence requires a criminal intent. In Standard Chartered Bank & Ors. V. Directorate of Enforcement ((AIR 2005 SC 2622. In this case Standard Chartered bank was being prosecuted for violation of FERA provisions. The FERA statute does not make any distinction between natural person and corporations))the Indian Supreme court did not specifically laid down that a corporation is capable of forming mens rea and acting pursuant to it. However, it held that corporations are liable for criminal offenses and can be prosecuted and punished at least with fines.  Finally, the position in Tesco was expressly approved by Supreme Court in Iridium India Telecom Ltd V. Motorola Inc (([2010] 160 Comp Cas 147; Reversed Motorola Inc V. Union of India (2004) Cri.L.J. 1576.))wherein, the court held that a corporation is virtually in the same position as any individual and may be convicted under common law as well as statutory offences including those requiring mens rea. Also, the Court in Iridium appears to have approved of the theory through which the intention of the directing mind and will of a company is attributed to the company ((Naniwadekar Mihir, Varottil Umakanth, Corporate Criminal Liability and Security offerings: Rationalizing the Iridium Motorola case, NLSIU Review, Vol. 23, No.1, p.109, 2011.)). The principle in Iridium was recently reiterated by the Apex court in CBI V. Blue-Sky Tie- Up Pvt. Ltd. & Ors ((2011(6)SCALE436))which reflects that the position in India on corporate mens rea is settled.

The Journey of Indian law from societas delinquere non potest which means, ‘a legal entity cannot be blameworthy’ till corporate mens rea had been slower in comparison to English law. In light of judicial decisions, though corporations can have guilty mind but Indian Courts still need to address the issue of scope and applicability of Meridian rule in Indian context. It is necessary to determine the class of persons falling under the domain of directing mind and will of the company. Though, keeping in view Corporate Scams like Satyam and Enron recent Companies Bill has imputed criminal liability on auditors if they knowingly or recklessly omit certain information from reports. However, the broader question still remains unresolved.