Crime and Criminal Law
1. Introduction
2. What is a Crime?
3. Basic Principles of Criminal Law
Rafiq Ahmed v. State of Uttar Pradesh, AIR 2011 SC 3114
3.1. Nullum Crimen Sine Lege
Bijaya Kumar Agarwala v. State of Orissa, AIR 1996 SC 2531
3.2. Nulla Poena Sine Lege
3.3. The Principle of Minimal Criminalization
3.4. Principle of Fair Labeling
3.5. Presumption of Innocence
3.6. Burden of proof is on the prosecution
3.7. Proof of guilt beyond reasonable doubt
3.8. Proof is made during a fair and public hearing
4. Purposes of Criminal Law
5. Relationship between Ethics/Morality and Criminal Law
5.1. Criminal law and social morality
5.2. Criminal Law and Constitutional morality
6. Criminal Law in Context: the Criminal Justice Process
7. Territorial and extraterritorial application of criminal law
7.1. Territorial jurisdiction
Mobarik Ali Ahmed State of Bombay, AIR 1957 SC 857
7.1. Extraterritorial jurisdiction of criminal law
7.2. Extradition
7.3. Offences committed onboard ships, aircrafts etc.
Republic of Italy v. Union of India, (2013) 4 SCC 721
(Enrica Lexie case)
7.4. Special case of cyber crimes
Chapter II
1. The Hindu Criminal Jurisprudence
2. The Islamic Criminal Jurisprudence
3. Criminal Law in the British Period
4. Making of the Indian Penal Code
Chapter III
1. Scheme of Punishment in IPC
2. Object of Sentencing
Maru Ram v. Union of India, AIR 1980 SC 2147
Modi Ram v. State of M.P., AIR 1972 SC 2438
Shiv Mohan Singh v. State (Delhi Administration), AIR 1977 SC 949
3. To be or Not to Be: the Death Penalty Debate
Bachan Singh v. State of Punjab, AIR 1980 SC 898 Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra,
AIR 2010 SC (Supp) 612
Swamy Shraddananda v. State of Karnataka, AIR 2008 SC 3040
4. Alternative to Death Penalty: Meaning of “Imprisonment for Life”
4.1. Cases “falling just short of rarest of rare”
5. Imprisonment
5.1. Term of imprisonment and judicial discretion
5.2. Minimum mandatory punishment
5.3. Solitary confinement as part of sentence of imprisonment
6. Fine
6.1. Quantum of fine
6.2. Fine as an alternative to sentence of imprisonment
6.3. Imprisonment in default of payment of fine
6.4. Fine vis-a-vis compensation
7. Forfeiture
7.1. Requirements of Criminal Forfeiture
8. Need for a comprehensive sentencing policy
State of Punjab v. Prem Sagar, AIR 2008 SC (Supp) 261
9. Alternative punishments
Chapter IV
Elements of Crime
1. Introduction
2. Human Being (or a person)
3. Actus Reus (the conduct element)
3.1. The Voluntary Act Requirement
3.2. Omissions
3.3. Omission of Statutory Obligation
3.4. Omission of a Contractual Obligation
Aruna Ramchandra Shanbaug v. Union of India and Ors.,
AIR 2011 SC 1290,
3.5. State of Affairs Offences
4. Mens Rea (the fault element)
4.1. The problem of assigning mens rea an exact meaning
4.2. Case law analysis—English cases
R v. Prince [1874-1880] All ER Rep 881
R v. Tolson, [1886-18901 All ER Rep 26
Sweet v. Parsley. [1970] AC 132
B (A Minor) v. Director of Public Prosecutions, [2000] 2 AC 428
R v. K, 12002] 1 AC 462
4.3. Mens Rea and IPC
4.4. Mens Rea in non-IPC offences
4.5. Mens rea is essential unless expressly or by necessary implication ruled out
Nathulal v. State of M.P., AIR 1957 SC 557
4.6. Express exclusion of mens rea
4.7. Mens rea in anti-terror laws
5. Kinds of Mens Rea in IPC
5.1. Intention
5.2. Knowledge
5.3. Rashness
5.4. Negligence
5.5. Dishonestly
5.6. Fraudulently
5.7. Reason to believe
5.8. Motive and Intention
5.9. Subjective and Objective mens rea
6. Injury (or Harm)
6.1. Offences without any harm to “others”: Victimless crimes
Chapter V
Concurrence and Causation
1. Introduction
1.1. Explanation of the principle
1.2. Leading English and Indian cases
The Public Prosecutor v. Mushunooru Suryanarayana Moorty, 13 Ind. Cas. 833.
2. Requirement of Causa Causans (the immediate or primary cause)
3. Breaking the Chain of Causation
(i) Novus Actus Interveniens
(ii) Act or Status of the Victim
4. Year and a day rule
5. Assault-Manslaughter Rule: Whether Applicable in India
Chapter VI
Strict Liability
1. Introduction
2. The beginning
3. Strict liability in India
3.1. Nature of liability under the existing food adulteration law
3.2. Taxing statutes: Whether strict liability?
3.3. Unsettled position vis-a-vis tax legislations: no liability if mens rea not proved
3.4. Strict liability under the Negotiable Instrument Act, 1881
3.5. Strict liability under other public welfare legislations
3.6. Corruption- not a strict liability offence
3.7. Other instances of strict liability
4. How to infer whether the liability is strict
5. What if the prosecution proves guilty mind in a strict liability offence?
6. Is strict liability in criminal law unjust?
Chapter VII
1. Introduction
2. Principles of joint liability in IPC
2.1. Common intention
2.2. “Common intention of all” vis-a-vis “same or similar intention”
2.3. Prior meeting of minds- meaning and scope thereof
2.4. Requirement of ‘some act’ for liability
2.5. Necessity of physical presence of the accused on the crime scene
2.6. Is Section 34, IPC applicable only where ‘intention’ is the requisite mens rea?
2.7. Conviction of only one accused with the aid of Section 34, IPC
2.8. “Common intention” beyond Section 34, IPC
3. Common Object
3.1. Scope of Section 149 explained
3.2. “In prosecution of common object”- meaning thereof
3.3. Is there a requirement of proof of an overt act?
3.4. Withdrawal from unlawful assembly- effect thereof
3.5. Relationship/ difference between Section 34 and Section 149
3.6. Substitution of Section 34 for Section 149
3.7. Conviction of less than five persons
4. Corporate Criminal Liability
4.1. Origin in England
4.2. Search for a rational basis of corporate criminal liability
4.3. Corporate criminal liability blossoms: vicarious liability vis-a-vis
identification principle
4.4. Indian position vis-a-vis corporate criminal liability
4.5. The Law Commission’s recommendation
4.6. Modern judicial approach to corporate criminal liability in India
4.7. Conditions for making the Chief Executive Officer/ Director/Manager liable for the
offences committed by companies
4.8. The way forward
Chapter VIII
Abetment, Conspiracy and Attempt
(The Inchoate Offences)
1. Introduction
2. Abetment
2.1. Abetment by instigation
2.2. Abetment by intentional aid
2.3. Abettor’s liability where the person abetted is acquitted
3. Abetment by conspiracy and criminal conspiracy
3.1. Ingredients of criminal conspiracy explained
3.2. Two ‘persons’ are necessary for conspiracy
3.3. Conspiracy where one party is a body corporate
3.4. Should all conspirators know each other?
3.5. Conspiracy- a continuing offence
3.6. A conspiracy comprising of several criminal acts- treated as a single conspiracy
3.7. Procedural safety against misuse of Section 120B- statutory bar on taking cognizance
3.8. Criminal conspiracy- agenda for reform
4. Abettor’s liability under Section 114, IPC
5. Attempt
5.1. Attempt under common law
5.2. Judicial delineation of attempt in India
5.3. The proximity test
5.4. The equivocality test
5.5. locus poenitentiae
5.6. The social danger test
5.7. Attempt to commit murder and culpable homicide
5.8. Attempt to commit rape
5.9. Attempt to commit suicide
5.10. Impossible attempts: legal and factual impossibility
5.11. Absurd attempts
5.12. Attempt is more about the mental state of the accused than about the act or its result
5.13. Modern English law of attempt
Anderton v. Ryan, [1985] 2 All ER 355
R v. Shivpuri, [1986] 2 All ER 334
5.14. Effect of withdrawal
5.15. Reform of law of attempt in India
Chapter IX
(Excusable and Justifiable Defences)
1. Defences which negate element(s) of crime (excusable defences)
1.1. Mistake
1.2. Mistake of fact is excused
1.3. Exceptions to the defence of mistake of fact
1.4. Acts must have been done in “good faith"
1.5. Defence of superior order: legal obligation to act under commands
1.6. Belief of the accused that he was “justified’’-defence when available
1.7. Mistake of law is no defence
State of Maharashtra v. Mayer Hans George, AIR 1965 SC 722
1.8. Ignorance of law- when may be an excuse
1.9. Mistake of law—New paradigms
1.10. Judicial and executive acts are excused
1.11. Mistake of mixed question of law and fact
2. Accident and misfortune
2.1. Accident
2.2. Misfortune
3. Defence of infancy
3.1. The English law on defence of infancy
3.2. Indian case law
3.3. The Juvenile Justice (Care and Protection of Children) Act, 2015 and criminal liability of a child
3.3.1. Child or Juvenile—who is?
3.3.2. Child in conflict with law—who is?
3.3.3. Extension of benefit of the JJ Act 2015
3.3.4. No adversarial trial of a child
3.3.5. Stage of raising claim of juvenility
3.3.6. Innovative dispositional orders against a child found to be in conflict with law
4. Defence of Insanity
McNaghten’s Case, [1843-1860] All ER Rep 229.
4.1. Legal and medical insanity
4.1.1. Medical insanity is no defence-only legal insanity is
Tolaram v. Emperor, AIR 1927 Lah 674.
4.1.2. Unsoundness of mind- the contours of legal insanity
4.1.3. Relevancy of state of mind before and after the commission of act
4.1.4. “Is incapable of knowing the nature of the act”- meaning
4.1.5. Incapacity to know- meaning thereof
4.1.6. “what is either wrong or contrary to law"- explained
4.1.6.1 “Legal wrong’’ and not “moral wrong”
4.2. What medical conditions or infirmities of mind are covered under “insanity?”
4.2.1. Paranoid Schizophrenia
4.2.2. Somnambulism
4.2.3. Epileptic fits
4.2.4. Mental imbalance or partial delusion
4.2.5. Irresistible impulse
4.2.6. Some other forms of mental disease
4.3. Insanity defence—The procedural law aspects
4.4. Modern global trend in insanity defence
4.5. Future of McNaghten Rule in India and possible reforms
5. Intoxication
5.1. Application of the defence of intoxication
DPP v. Beard, [1920] AC 479
Basdev v. Pepsu, AIR 1956 SC 448
5.2. Intoxication vis-a-vis crimes of basic and specific intent
5.2.1. English law
5.2.2. Indian law
5.2.3. Voluntary intoxication as a mitigating factor: some recent cases
6. Defences which justify the alleged criminal act (justifiable defences)
6.1. Necessity, coercion and duress of circumstances
6.1.1. Necessity
6.1.2. The development of the common law of necessity
6.1.3. Indian position
6.2. Coercion or duress
6.2.1. A comparative view of Indian and English law of duress
6.3. Duress of circumstances
6.4. Defence of consent
6.4.1. Acts done with consent and for benefit— General
6.4.2. Acts done for the benefit with consent-children below 12 years of age
and insane persons
6.4.3. Acts done for benefit and without consent
6.4.4. Valid Consent—Meaning thereof
6.4.4.1. Defence of consent in the offence of rape and sexual assault
6.4.4.2. Consent obtained by misrepresentation and/or fraud
6.4.4.3. Revocation of consent
6.5. Harm caused by communication made in good faith
6.6. Acts causing slight harm
6.6.1. Socio-economic offences and the de minimis rule
6.7. Private defence or self-defence
6.7.1. Extent and scope of right of private defence
6.7.1.1. General scheme of right of private defence
6.7.1.2. No duty to retreat
6.7.1.3. Burden of proof
6.7.1.4. Right of private defence may not be exercised against a trespasser
6.7.1.5. No right of private defence in a free fight
6.7.1.6. Aggressor has no right of private defence
6.7.1.7. Private defence against those who are incapable of committing crime
6.7.1.8. No right of private defence against certain acts of public servant etc.
6.7.1.8.1. Acts of public servant and private defence
6.7.1.8.2. No right of private defence if recourse to public authorities can
be taken
6.7.1.8.3. Harm caused must not exceed the threat quotient
6.7.1.9. Right of private defence of body may extend to causing death
6.7.1.10. Right of private defence of body- when death may not be caused
6.7.1.11. Commencement and extinction of the right of private defence
of body
6.7.1.12. When right of private defence of property extends to causing
death
6.7.1.13. Right of private defence of property- when death may not be
caused
6.7.1.14. Beginning and end of right of private defence of property
6.7.1.15. Injury to an innocent person in exercise of right of private defence
7. Exceeding right of private defence- consequences
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