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Merits of the Act of 1935

1.         The Act of 1935 extended franchises to more people to enable them to show more interests in national affairs.

2.         The Act provided considerable autonomy to the provinces.

3.         The political parties were provided an opportunity to known their strength and many   leaders got experience in administering the government.

4.         Principle of Parliamentary from of Government was accepted.

5.         The Indians were provided an opportunity to do some conservative work.

6.         Federal Court at national level was established.

7.         The Indian Constitution was designed more or less on the pattern introduced by the  Government of India Act, 1935.

            Demerits (Criticism)

1.         The Governor-General and Governors were given extraordinary powers.

2.         There was dyarchy at the federal administration thought it was abolished in provinces.

3.         Communalism influenced the Constitution of India and Government which could not  satisfy the either Muslims or Hindus.

4.         Indians were not given full power and not allowed to administer the Government of India. The Indians were not satisfied with this piecemeal system.

5.         The native states were given option either to join or not to join the federation and this led for the failure of federal system in India.

            Pandit Nehru called the Act of 1935 "a machine with strong brakes and no engine".  Jinnah called it as "thoroughly rotten, fundamentally bad, and totally unacceptable". Malaviya said, "The new Act has been Trust upon us. It has somewhat democratic appearance outwardly, but it is absolutely hollow from inside".

            G.Y. Chintamani was of the opinion, "we are given a limp federation full undesirable

features, ill-balanced as between the Stats and the provinces and denied powers which are vital to the every government worthy of the name".

The Indian National Congress was of the opinion that the Act of 1935 "is a prodigy of imperialist statesmanship. It is an elaborate and ingenious device to frustrate the emergence of free India".

Comparison between the Constitution of India, 1950 and the Government of India Act, 1935

            Through the Constitution of India, 1950 resembles to certain provision made in the Government of India Act, 1935. It is not correct that the Constitution of India, 1950 is wholly based on the Act of 1935 and it is also not correct to suggest that the scheme of Federation under the Constitution is fundamentally the same as under the Government of India Act, 1935. The Constitution of India differs from the Governments of India Act, 1935, in essential particulars.

            The main points of resemblance and difference between the provisions of the Constitution of India and the matters detailed in Government of India Act, 1935 are presented in short as under:

1.         Origin: The two documents differ form each other in respect between the their authority as one was made by the Parliament of England while the other is the expression of   supreme will of the people of India who are the source of all power and authority.

2.         Democratic Principles: The presented Constitution makes a wider application of  Democratic principles than the Governments of India Act 1935. Which was determined      and dominated by Imperial will and not by National Considerations.

3.         Fundamentals Rights and Duties: The provision of fundamental rights and duties have been made in the present Constitution, but the Government of India Act, 1935 did not    contain any such thing.

4.         Liquidation of Princes: The present Constitution liquidates all the princes divesting them of their ruling powers. The Government of India Act, 1935 allowed the ruling princes to send their nominees to the Federal Legislature and now there is nothing of that sort.

5.         Abolition of jurisdiction of Privy Council: With the assumption of full sovereignty and  independence, the Jurisdiction of Privy Council is abolished.

6.         Federal Structure: The present Constitution does not, however completely do away with the past. It borrowed its Federal from the Government of India Act, 1935. The present       Constitution is less rigid and more democratic.

7.         More autonomy of States: The presented Constitution grants more autonomy to the  component units of the Union of Indian than that enjoyed by the provinces under the       Government of India Act, 1935.

8.         Powers: The Federal Government as contemplated by the Government of India Act, 1935 was dyarchical from of governments; it was Government with responsibility but without       power which was retained by the British Government. We have, in our Constitution,neither 'reserved subjects' nor' discretionary powers'. Under which the President acts          only as a Constitutional head on aid and advice of the Council of Ministers.   

9.         Executive Heads: Under the Act of 1935, the Governor-General was vested with very     wide powers. He was to select ministers and to dismiss them according to his own     discretion. Now, there is no such discretion with any authority in the presented             Constitution. The executive Heads, viz., the President and the Governors have to act on the aid advice of the Council of ministers.

10.       Social and Secular State; As per Government of India Act, 1935. India is under the rule            of monarchy i.e., Crown of Britain while Constitution of India, 1950 envisases a socialist,   secular, democratic Republic. 

Circumstances for the Passing of the Government of India Act,1935

1.         The nationalists were disappointed with the provision of the Government of India Act, 1919. This did not provide responsible Central Government, and dyarchy in provinces did not mean the transfer of power of Indian hands. The Reforms of 1919 were in the nature of half-way house. The Constitutional Concession continued in the Act, 1919were considered as totally inadequate, unsatisfactory and disappointing. The Congress asked the British Government to take early steps to establish full responsible Government in   India in accordance with the principle of self Determination the Congress resolved to work for reform 'fifty fair as may to possible. With a being about the early establishment            responsible Government in India'.

2.         Augitations had been going on against the British Government which started the hopes of the Indians of self government. in order to curb such lawlessness. The government armed itself with vast police and executive powers   under the Provisions powers of Rawlett  Act the peaceful and unarmed Indians were mercilessly massacred at Jallianwala Bagh    in Punjab on 13 April. 1919. It caused a great stir among the people of India.

3.         Mahatma Gandhi. Disgusted with the British savagery, moved a revolution at Calcutta session at the Indian National Congress to launch non-cooperation moment, in the mean Time the Conges had given new slogan to the mess, namely 'swaraj 'as a ultimate goal of freedom struggle.

4.         The Swaraj Party founded by C. R. Das and   Motilal Nehru resolved to wreck the  legislature from within. There policy of uniform. Continious and constant obstruction breakdown the working of dyarchy and the British were put to much trouble.

Federalism under the Government of India Act,1935.

            The Act ,1935 aimed at establishing the federal system of Government of India for the first time. The Act ran into 1451 clauses and 15 Schedules, almost complicated document ever enacted by the British Parliament. The pattern federalism adopted under the Government of India Act, 1935. Was the most complex due to the following reasons:

i)         The process of federalism was not a process of integration, but a process of  decentralization. The provinces which were part of the British India Empire were never  independent entities. By this Act it was intended to give provincial autonomy to those      provinces and thus from a federal polity.

ii)        The units of the federation did not enjoy a uniforms status. Even in British India there    were Governor's Provincial and Chief Commissioner's Provinces. Besides, it was  intended to bring in the native status as units of the federation.

iii)       The need for bringing in the Native Status as units of federation presented certain peculiar problems as these Status did not want in the units of federation on a uniform basis.

iv)       The federal government was not be a responsible or an independent government but it    was to be essentially subroutine and responsible to the British government.

            These special circumstances made federation an extremely complex machinery under the Government of India Act, 1935.

            The Government under the Government of India Act,1935 exhibited all the normal characteristic of the federal government. There was a scheme of distribution of the legislative  powers. there was rigid constitutional and there was also federal court which was to secure the due observance of the limits place on the Central and the Provincial Governments and legislature. The Constitution was written and amendment was extremely rigid.

            Nevertheless, the federation contemplate under the Government of India Act, 1935 was far from being a normal federation. Some considered it as quasi-federal. In view of the following peculiar characteristics exhibited by the federation contemplated under the government of India Act, 1935. It could hardly be called federal.

i)         The federation under the Government of India Act, 1935 attempted to confer autonomy  on the Provinces and them bring them together under a federation. This process of        decentralization, naturally resulted in allotting comparatively small powers and functions to the Provinces.

ii)        The other units of the federation were to be the States. The peculiar position of the States  was that they were subject to the paramountcy of the British Crown. These sates enjoyed    greater independence and autonomy. Therefore, naturally they were reluctant to surrender     greater powers to the Federal Government in a smaller sphere than the Provinces. This          resulted in there being a federation with the units relating vary degree of powers.

iii)       The native states were to accede to the federation by signing an Instrument of accession. But it was never contemplated to have a uniform Instrument of Accession for all the   States So, each State could surrender powers to the federation different from those    surrendered by other States.

iv)       As a result of the above factor the Constitutional document that accommodate the federal  from of Government would not ne one; there could be multiplicity of such documents.

v)         The Governors of the Provinces were subject to the control of the Governor-General in all matters in which they were required to act at their discretion or in their individual  judgment. Thus, the head of the province was subordinate to the head of the federation.

vi)       The power to amend the Constitution was entirely vested in the British Government and  Parliament, neither the federal legislature nor provincial legislature had any such powers.

vii)      Normally, in the Federal Constitution, the Upper House establishes the principal of  equality of the units and the Lower House national unity. But, under this Act the Council           of States, the Upper House was not consisted on the principal of the equality seats were allotted to the provinces and the representation of the States was made cartingent on several factors. The members of the Council of States were not uniformly elected. The  representatives of the British India Provinces were to be mostly elected directly; while   the representatives of the States. The Federal Assembly was to be elected, But the principal of communal representation was also introduced. Besides, the States were given    a large proportion of seats in the legislature than they deserved on the basis of their population.

viii)     The Government at the center was not a fully responsible government, through larger   element of responsible government was introduced in the Provinces. The principle of     dyarchy, discredited at the provincial level was introduced at the center under this Act.

ix)       Many of the important departments like those pertaining to defence, foreign affairs etc.,  were under the exclusive control of the Governor-General who was responsible only to  the British Crown through the Secretary of State of India. The Central Ministers who were responsible of the Federal Legislature had no powers in respect of such  departments.

x)         The Centre had vast powers to intervene in the affair of the province. The Governor of    the Province was subject to the control of the Governor-General even in provincial    matters which were in the discretion or individual judgment of the Provincial Governor. But in the case of the State even the federal law could be administered only by the result  of the State.

xi)       The Federal Court Constituted under the Act was not the finial custodian and guardian of the Constitution. Constitutionally, issues were delta with partly by the High Court, partly  by the Federal Courts but the final interpretation of the Constitution rested always with the Privy Council. No Indian legislature could Restricted the appellate authority of the  Privy Council.

xii)      The residuary power in the case of the British India could be located by the Governor-       General either in the federal legislature or in the provincial legislature. But, in the case of       State, the residuary power vested in the ruler himself.

Circumstances for the Passing of the Government of India Act,1935

1.         The nationalists were disappointed with the provision of the Government of India Act, 1919. This did not provide responsible Central Government, and dyarchy in provinces did not mean the transfer of power of Indian hands. The Reforms of 1919 were in the nature  of half-way house. The Constitutional Concession continued in the Act, 1919were considered as totally inadequate, unsatisfactory and disappointing. The Congress asked the British Government to take early steps to establish full responsible Government in   India in accordance with the principle of self Determination the Congress resolved to work for reform 'fifty fair as may to possible. With a being about the early establishment            responsible Government in India'.

2.         Augitations had been going on against the British Government which started the hopes of  the Indians of self government. in order to curb such lawlessness. The government armed  itself with vast police and executive powers   under the Provisions powers of Rawlett   Act the peaceful and unarmed Indians were mercilessly massacred at Jallianwala Bagh    in Punjab on 13 April. 1919. It caused a great stir among the people of India.

3.         Mahatma Gandhi. Disgusted with the British savagery, moved a revolution at Calcutta           session at the Indian National Congress to launch non-cooperation moment, in the mean Time the Conges had given new slogan to the mess, namely 'swaraj 'as a ultimate goal      of freedom struggle.

4.         The Swaraj Party founded by C. R. Das and   Motilal Nehru resolved to wreck the       legislature from within. There policy of uniform. Continious and constant obstruction      breakdown the working of dyarchy and the British were put to much trouble.

Simon Commission

5.         Section 84-A of the Government of India Act 1919 provided for appointment with in  years of its passage of Commission of inquiry inter-all into the development of  representative institutions in British India. This Commission setup in 1927 came to be        known as the Simon Commission. It was comprised by seven British members without  Indian representatives. This Commission was boycotted by most of the political parties  including the National Congress. The Commission under the Chairmanship of Sir John      Simon contained the following recommendations:

            i)         The Constitution must be framed in such away so that the self development of the  Country was possible.

            ii)        The main object behind any proposal for constitutional amendments, was to  maintain the sovereignty of British Indian.

            iii)       The Country should become a member of Common Wealth of Nations.

            iv)       The Dyarchy should be abolished and also the limits on Indian ministers be reduced.

            v)         Ministers should be responsible to the Legislature, They should be chosen from the majority.

            vi)       The Provincial administration should be put under the control of the Provincial  Cabinet.

            vii)      Burma was to be given a separate new entity, Politically as well as  Geographically.

            viii)     The Legislative Assembly was given the new name 'Federal Assembly'.

            ix)       The Governor-General -in- Council was to be continued as the Central body.

            The report of the Simon Commission not only failed pacify the Indian National opinion, but it also offended conservative opinion in the United Kingdom as dangerously    generous. However most of its recommendations were in-cooperated in the Government  of India Act, 1935.

6.         Asa challenge of the Simon Commission all parties conference appointed a Committed      under the presidentship of Motilal Nehru known as "Nehru Committee". Its        recommendations were: (i) Dominion status for India; (ii) Provincial Autonomy; (iii)      Creation of New Provinces;

(iv) Fundamental Rights;

(v) The Central Legislature and  Executive;

(vi) Indian Status;

(vii) Rejection of Communal electorate.

7.         Mr Jinneh the leader of the Muslim League put forward own minimum demands acceptable of to muslin for any political settlement He adequate safeguards interest of the Muslim future constitutional setup in India.

8.         After the publication of Simon Commission   Report, the British Government called the  First Round Table Conference in London on 12-12-1930. As the Congress leaders were in        prison, the Government men belonging to yes-men to represent India. After prolonged deliberations, they felt need of Indian National Congress being represented in the  constitutional talks. The Second Round Table conference (which was held from 7-9-1931   to 1-12-1931) as attended by Gandhi as the sole representative of the Congress. As all    agreed to the arbitration of Ramsey MacDonald, The Prime minister of England, he gave           communal award of 16th August 1932 Gandhiji underlook a fast onto death. his life was        saved by the compromise arrived at by the Indian leaders at by the pona pact. The Third             Round Table conference was held between 7-11-1932 and 24-12 -1932. The congress did    not Attained the conference, the delegates of the conference discussed the reports of   various committees appointed by the earlier conference. And finalised few more points. 

            After finalizing the entire scheme regarding the feature constitutional of India, the British  government issued the 'white paper of 1933' on it. This report in detail the working basis        of the new constitution with a dyarchy at the center, and a responsible government in the  provision. The Indian public opinion commended 'white paper.

10.       despite the criticism, the British government referred the paper to the Joint Select Committee of the British Parliament. The Committee headed by Linlithgow, had 32  members, 16 from the House of Lords an d16 from the House of Commons. The             Committee submitted its report on 22nd November, 1934. On the recommendation of the  Joint Selection Committee the bill was drafted and introduced in House of Commons in February, 1935. The bill received the final assent on 2nd August, 1935. And became      famous as "The Government of India Act 1935".

                        DISTINCTION BETWEEN CRIME AND TORT

                                                (CIVIL WRONG)

Meaning of Tort:

            The term 'tort' is derived the Latin word, 'tortum', which means 'twisted' and its equivalent word is 'wrong' or 'wrongful act'.

            Tort may be defined as an injury or a wrong committed with or without force to the person or property of another, and such injury may arise by either the nonfeasance, malfeasance or misfeasance of the wrongdoer.

            Prof. Winfield states that tort means 'tortious' liability which arisos from the beach of duty primarily fixed by the law, this duty is towards persons generally and its breach is redressable by an action for unliquidated damages.

            According to Sir John salmond tort is "a civil wrong for which the remedy is a common law action for unliquidated damages for which is not exclusively the breach of contract or the broach of trust or other merely equitable obligation".

            'Tort is a civil wrong which in a beach of some duty between citizens defined by the general law, which creation a civil causes of action. There might be a private right of action; too facts producing it may or may not also constitute offence punishable by public authority.

            Every tortious act does not amount to a crime, nor does every crime include a tort. Thus, mistake or innocent trespass to one's land or private nuisance is a tortious act, but is not a crime for there is no element of danger to the public interest. However, obstruction of highway, perjury, homicide etc.  are exclusively criminal act and not torts. But there are some causes where a wrong is both criminal and tortious and the State prosecutes the wrongdoer and also affords the suffer an opportunity to claim damages by providing concurrent remedies such as assault, false imprisonment, libel, theft etc. In such cases there is not only the violation of a private right of bodily safety, property or reputation but such violation also constitutes a menace to the safety the society in general.

            Both Crime and tort resemble each other in two respects, namely (i) tort and crime and violation of right in rem; (ii) they are fixed by law irrespective of the consent of the parties, unlike contact. However, crime and tort distinct as given below.

                                    Difference between Crime and Tort

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                        Crime                                                             Tort

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(1)  A Crime is a breach of the public                                    A lot is a violation of the private

    Public rights and duties which                               rights of an individual.

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(2)   A crime is a public wrong                       A tort is a civil wrong. It gives

   Which result in punishment                        rise to civil proceedings.

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(3) A Crime is an offence against                   A tort causes injury or damage

     The public at large or                                to an individual or group of individual

     society as a whole.

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(4) A crime is tired in criminal                       A tort is tired in Civil Court.

    Court.  

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(5) In a crime the victim is an                        In a tort, the plaintiff is the injured

   Individual. The Criminal proceeding          party .

against the wrong doer are instituted by

 the State.

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(6) The object of the Criminal law is to          The purpose of awarding composition to  the protect community or society by preve-   injured party in a tortious wrong is to make

eting and deterring the offenders from           good the loss suffered by him.

committing further offences.

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 (7) In crime intention plays important           In tort, the intention is not an important factor.

      factor.

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(8) Generally an act shall not be punis-         Mens rea (motive) has no place in tort.

    hed as a crime, unless there is mens rea

   (ie. motive) actually present in the wrong-doer.

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(9) In criminal cases, burden of proof lies     Burden of Proof lies on the injured complainant.

on the State. The injured becomes a winess

only.

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(10) Strick rules of procedure and principle               While dealing with civil wrong natural prin-               

       are fallowed in fixing the liability of                   ciple of justice, good conscience, equality,

       the criminal                                                          etc. are fallowed in fixing the wrong-doer's

                                                                                    liability.

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(11) Criminal law, generally, does not                       Law permits the parties to settle the dispute.

       Permit settlement of a cases by                           In other words, the plaintiff can withdraw

       Compromise between parties.                             The suit field by him.

          However Sec.320 of the PC provides

         for an exception to thus rule.

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(12)  The person who commits crime is called          The person who commits tort is call-

        Accused (before guilt is proved) and convict     ed 'the feasor' or 'wrong doer'.

        (after guilt is proved) or criminal.

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(13) Criminal arises on account of Statuory              Tort arises out of liability independ-

        Enactments.                                                        ent of any personal obligation under

                                                                                                A contract.

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(14) All the Crime are defined and punish-               Most of the Law of the torts is judge-

      ments are prescribed and criminal law                 made law. It is not codified.

      is codified.

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(15)  The offences defined under the cri-                   The offences under the torts do not                                            

       minal law are notorious for moral uns-               involve any element of moral trupti- 

      crupulousness. They are treated as                       tude. The wrong-doers of torts are

      morally depraved aggravated heinous                  punished by way of damagers for the

      and dangerous to the individual and also             butter social welfare and efficiency.

      to the society.

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(16) The offender is punished by the State,               The wrong-doer has to compensate the

        Such punishment may be fine or imp-               aggrieved party, such compensation may     

       risonment. The nature of punishment                  be nominal, ordinary or exemplary acco-     

      is heavy.                                                                ding to the magnitude of the tort. The nature

                                                                                    of punishment is generally lighter.

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(17) The amount collected by way of penalty            The payment made by the wrong- doers as

        and fine is not paid to the victim, but that          compensation goes to injured party.

       Amount is created into State account.

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(18) Criminal law is the oldest law.                           Civil law is the latest subject.

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Breach of Contract:

            Contract is an enforceable covenant or agreement between two person, with a lawful consideration or causes, it is a deliberate engagement between competent parties, upon a legal consideration, to do or to abstain from doing some act. Section 2(h) of the Contract Act, 1872 defines contract as "an agreement enforceable by law". In a contract all the parties of both sides have obligation to bid over to the agreement. If any party fails to fulfill the contract obligation, it amounts to 'breach of contract'. Then other party fills a suit in the Civil Court of enforce the agreement. The following are the differences between Crime and Breach of contract.

Distinction between Crime and Breach of Contract

            (1) In crime, the injured party cannot use for damages. The injury to the victim is deemed as an injury to the society. It is the violation of public rights. Hence the State prosecutes the accused. The burden of proof lies upon the State. If the wrongful act is proved, the accused is put in imprisonment or imposed fine, or both. Such fine is not paid to the victim. It is credited into the States account. But, in case of breach of contract, the injured party has right only for liquidated damages i.e. presettled or actual damages.

            (2) The  object of the criminal law is to project the peace of the society, while the object of law on the breach of contract in to protect the rights of the parties in a contract.

            (3) Mens rea (ill intention) is an important factor in imposing the Criminal liability upon the wrong-doer where-as, in breach of contract, the motive is not an essential factor. The defaulting party has to pay the pre-settled and actual damages.

            (4) A wrongful is an infringement of right in rem. The wrong-doer has a 'Duty in rem' i.e., he should not do harm or injury to any person. It is a statutory duty. But, a beach of contract is an infringement of a right in personam i.e., a right available only against some determinate person or body and for which the community at large has no concern.

            (5) The Criminal law which deals with crimes and offences is a separate branch, whereas breach of contract is a species of law of contract, which belongs to civil law.

            (6) The criminal law is completely codified one while the law relating to contracts considers trade customs, through it has been codified.

            (7) In crime, the victims is not paid damages. The caused is sent to jail or imposed fine or both. The fine goes to the State. However, in breach of contract, the party is entitled only for actual damages.

                        STAGES OF CRIME

            A Crime is an act committed or omitted in violation of public law forbidding or commanding it. Commission of crime involves four stages, namely (i) intention; (ii) preparation; (iii) attempt; and (iv) accomplishment.

1.         Intent or contemplation:

            Intent is the first stages on the commission of an offence. At this stage the person has made up is his actually implement or execute his devious plans. Without intention, there is no commission of an offence. Intention is an term which is very difficult to define. It can be variety said to mean the object, purpose, intention was been defined as the fixed direction of the mind to a particular manner and it is distinguishable from motive that which incites or stimulates action.

            Every same person of the age of discretion presumed it intend the natural and probable consequences of his own acts. Every actual consequences is a natural probable consequences unless and until the contrary is affirmatively shown.

            Intention is the result of working of the brain and can be gathered from judging the act from the circumstances under which it was done. Intent is were the person crosses a normal mental boundary. From this point, the person is mentally physically prepared to commit violence in order get what he wants whatever that may be.

            The word 'intention' means that an intended act is in the future and the la makes relevant statements made by a conspirator with reference to the future.

            To form an intention. He should conceive the idea of performing legally declared harm. It is immaterial whether the person conceiving such an idea knows that it is illegal to perform it. At this state there is no action taken to harm anybody. In order possess and to form an intention there must be capacity for reason. and when by some extraneous force the capacity for reason has been ousted the capacity to form an intention must also have been ousted. Intention connotes conscious state in which mental faculties are roused in to activity and summoned in to action for the deliberate purpose being directed towards a particular and specified act and which the human mind conceives and perceives before itself.

            'Criminal intention' means the purpose or design of doing an act forbidden by the criminal law without cause or excuse. The intention of the accused to produce a particular consequence show his intention to do that act. An act is intentional if it exists in idea before it exists in fact, the idea realizing itself in the fact because of the desire by which it is accompanied.

The word 'intent' does not mean ultimate aim and object. When the legislature makes an offence dependent on proof of intention, the Court must have proof of facts sufficient to justify it in coming to the conclusion that the existed. No doubt one has usually to infer intention from conduct, and one matter that has to be taken in to account in the probable affect of the conduct.

            Criminal intent is a psychological fact which is very difficult to prove. Intention to commit the crime is not punishable unless it is made known to the others either by words or conduct. In Indian Criminal Law mere intention to a crime is not punishable. However, law takes notice of such intention in certain offences. For example: in waging war against the Government (Secs. 121 to 123 of IPC) Sedition (Secs 124A of IPC), intention is considered has serious offence and were intention to commit them is punishable. Similarly, were assembly of persons of committing the dacoity without any further preparation in punishable under Secs 402 of IPC.

2.         preparation:

            The second stage in commission of a crime is 'preparation'. Preparation means "to arrange the means are measures necessary for commission of the intended criminal act.

            Preparation is the action of preparing or getting ready (Sec.8, Indian Evidence Act); something that is prepared; something made for a specific (Sec 276 IPC); to ready beforehand. It is preparation is driven by motive. Motive is that which stimulates or incites an action; the mainspring of human  action; some cause or reason that  moves the will and induces action; the moving power which impels to act for a definite result.

            It is a very difficult for the prosecution to person that necessary preparation has been made for the commission of the offence. For example,

            Purchasing knife with the intention to kill someone is not a crime because it cannot be determined whether the knife was ought to kill someone or to cut vegetables.

            More preparation is punishable under the Indian Penal Code in respect of the following offences.

            (i) Waging War (Sec. 122)

            (ii) preparation to commit dacoity (Sec. 399)

            (iii) preparation for counterfeit coins, and Government stamps (Secs, 233 to 235, 255 to                          257), and

            (iv) possessing counterfeit coins, false coins, false weights or measurement and forged documents (Secs, 242, 243, 259, 266 and 474)

            preparation itself constitutes the actus reus.

3. Attempt:

            The third stage in commission of a crime is 'Attempt'. It is also known as 'Preliminary Crime' and 'Inchoate Crime' (Inchoate means incomplete). Attempt is an effort or endeayour to do something; to try to accomplish or attain any action or object.

            An intentional act which a person does towards the commission of an offence but which fails in its object through circumstances independent of the violation of that person is 'attempt'.

            An attempt to commit a crime is an act done with intent to commit that crime, and forming part of serious of acts which-would constitute its actual commission I it were not interrupted.

            The stage of attempt is attained by performing physical action that, if left unstopped, cause injury to someone.

The action clearly show that the person has absolutely no intention to abandon his plane and if the person is left unrestricted, he will complete the commission of the crime. Since by intention of the person can be determined without doubt from his action, an attempt to commit a crime is considered a crime because it left unpunished, crime is bound to happen and prevention of crime is equally important for healthy society.

            Both preparation and attempt are physical manifestations of criminal intention. But attempt goes a lot further then preparation towards the actual happening of crime. While in preparation, there is a possibility that the person may abandon his plan but attempt leaves no room for that.  For example: keeping pistol in pocket and looking for the enemy to kill is a preparation because one can abandon the plan anytime, but taking out the pistol and pulling the trigger is attempt to commit leaving no room for turning back. Thus, in general, preparation involves collecting material, resource, and planning for committing an act while attempt signifies the achievement towards commission after the preparation are made.

            The following are the essential of attempt:

            (i) Guilty intention to commit an offence;

            (ii) Some act done towards the commitment of the crime; and

            (iii) The act must fall short of the completed offence.

            The term 'attempt' is not defined in Indian Penal Code. Under the penal code, attempt has been described as under:

            (i) Completed offences and attempts have been dealt in the same section and same                     punishment is prescribed for the both.

                e.g. Waging War and Attempting to War (Sec. 121).

            (ii) In case of certain offences, attempts are described separately and separate punishment          is prescribed for completed offences and attempt.

                 e.g. Section 302 describes punishment for murder and attempt to murder is punishable                        under Section 307.

            (iii) In other cases of attempt, they are covered under Section 511, which prescribes                           longest term of imprisonment or fine or with both.

                  e.g. Punishment for theft is upto 3 years imprisonment or fine or both fine and                       imprisonment. Punishment for attempt to commit theft is on and half years                                 imprisonment or with fine or with both.

            Chapter XXIII (Sec. 511) of the IPC deals with 'Of Attempt to Commit Offences' and provides for punishment for attempt.

            [See the topic 'XI Attempt to Commit Offences' in Annexures at end.]

            In R.V. Scofield [(1784) Cald 379], it was held that an attempt to commit itself is an offence.

            In R.V. Linneker [(1902) 2 KB 99], a person took loader revolver out of his pocket and said repeatedly that he was going to kill 'B'. His weapon was seized and the Court held that he was guilty of an attempt.

            In R.V. Cheesman 1862, Lord Blackbum identified a key difference between preparation and attempt and said that if the actual transaction has commenced which would have ended in the crime if not interrupted there is clearly an attempt to commit the crime.

            In R.V. King. 1982 the accused was convicted for attempting to steal from the handbag of the women although there was nothing in the beg. Illustration (b) of section 511 of the IPC is based on this decision.

4.         Commission of Crime or Accomplishment:

            Actual Commission of the offence is the final stage where the crime is actually done. The attack is the crime when the Criminal/Violent person commits himself to using force- or threat of force- to get what he wants. If the accused succeeds in his attempt, he is guilty of the offence. For example 'A' fires at 'B' with an intention to kill him. If 'B' dies, 'A' id guilty of murder. If 'B' is injured, 'A' is guilty of attempt.

            If the accused is on of the commission of crime, he may be an accomplice i.e., one who is in some way concerned in the commission of a crime, though not as principle. A person cannot be treated an accomplice merely because he was present when the offence was committed and was fully aware of the person who committed it, but did not disclose it to the proper authorities. He is only an associate in a crime or guilt. An accomplice is a person who has concurred is the crime and who acknowledges himself to be a criminal by being included.

5.         Reaction:

            The new fifth stage of violence crime is reaction. Reaction is how the criminal feels about what he had done.

                                    ELEMENTS OF CRIME

            Criminal guilt of act would attach to a man for violations of Criminal Law However, the Latin Maxim 'acts non fact remu nisi mens sit rea' i.e, no Criminal without a guilty mind. The act should be a wrongful act- 'actus reus'. A mere criminal intention not fallowed by a prohibited act cannot constitute a crime. Similarly, mere 'acts reus' ceases to be a crime as it lacks 'mens rea'. In juristic concept actus reuse represents the physical aspect of crime, and mens rea, its mental aspect, which must be criminal. The criminal act causes harm to others. The Chief elements necessary to constitute a crime are.

            (i) A human being under a legal obligation has to act in a particular way and he is a fit                   subject for appropriate punishment for his wrongful acts;

               (ii) An act committed or omitted in furtherance of such an intent (actus reus);

            (iii) An evil intent on the part of such a human being (mens rea).

            (iv) An injury to another human being or to society at large by such act.

            Among the elements of crime actus reus and mens rea are considered as essential elements of crime.

1.         Human Being:

             The act must have been done by a human being before it can constitute a crime punishable at law. Generally, both the wrongdoer and aggrieved/ injured/ deceased are human beings. In ancient times, punishment used to be inflicted on animals or inanimate objects for injury caused by them. Baring Gould's 'Curiosities of Olden Times' provides "The first time an ass if found in a cultivated field not belonging to its master, one of its ear is chopped off. If it commits the same offence again, it loses the second ear". However, even the owner of the animal is taken to task for the wrongful acts of his animal. For example, if on gores a man to death, the ox was stoned and the owner put to death". With the development of the nation of mens rea as an essential element of crime, the trial and punishment of animals and inanimate objects had to be given up. Therefore, only a human being under a legal obligation can be the subject of criminal law. It means a human being must have a body. Artificial persons corporations are not capable of being punished.

2.         Actus Reus (Physical Act or Omission):

             The expression 'actus reus' has apparently been coined by Prof.Kenny in the first edition of his 'Outilnes of Criminal Law, in 1902.

             The term \ actus reus' has been given a much wider meaning by Glanville Williams in his Criminal Law thus :

             "When we sue the technical term actus reus we include all the external circumstances and consequences specified in the rule of law as constituting the forbidden situation. Reus must be taken as indicating the situation specified in the actus reus as no that, given any necessary metal elements, is forbidden by law. In other words, actus reus means the whole definition of the crime with the exceptions of the mental element and it even includes a mental element in so far as that is contained in the definition of an Act. This meaning of actus reus follows inevitably from the preposition that all the constituents of a crime are either acts reus or mens rea".

            Actus reus connotes an over act, the physical result of human conduct. It is an event that is distinguished from the conduct which produced the result. For instance, in a murder case, the victim's death is the event which is the actus reus. The death or the actus reus was probably caused b the firing of a gun, which is the conduct which produced the result. In other words, the crime is constituted by the event and not by the activity which caused the event. The vicious intention to cause the actus reus i.e., the death is calld mens rea. Every crime involves the combined presence of both actus reus and mens rea.

            The word 'actus' connotes a 'deed', a physical result of human conduct. The word 'reus' means 'forbidden by law'. The term 'actus reus', may, therefore be defined as "such result of human conduct as the law seeks to prevent.

            Ressel calls actus reus as 'physical result of human conduct according to Kenny, 'actus reus' is such a result of human conduct as the law seeks to prevent.

            The actus reus is made up of there constituent parts, namely.

            (i) human action which is usually termed as 'conduct';

            (ii) the result of such act in the specific circumstances, which is designated as 'injury' ;                           and

            (iii) such act as in 'prohibited by law'.

            Conduct: Actus means 'deed of commission, a result of active conduct. Actus reus is the result of the human actus. An act is defied as 'an event subject to the control of the will.' An means something voluntarily done by a human being. Human action includes acts of commission as well as actus of omission.

            According to Section 33 of the IPC, the word 'act' denotes as well a serious of acts as a single act, the word 'omission' denotes as well a series of omissions as a single omission.

As per Section 32 of the IPC, in every part this Code, except where a contrary intention appears from the context, words which refer to acts done extend also to illegal omission.

            The actus reus is the result of conduct and therefore it is an event. For example A stabbed B with a knife. The result is the injury to B it means injury is the result of actus reus.

For the purpose of fixing criminal liability, an act may be analyzed as consisting of three parts:

(i) its origin in some mental or bodity activity or passivity of the dore, that is , a willed movement or omission;

(ii) its circumstances: and

(iii) its consequences.

illustration: A shoots B to death with a rifle. The material elements of the act are: (i) a series of muscular contraction by which the rifle is raised and the trigger pulled: (ii) the rifle is loaded, positioned himself within range iii) the consequences the fall of the trigger, explosion of the power, the discharge of the bullate, striking of the body of the victim resulting in his death. all these constitute 'an act 'i.e , 'A killed B ',for which he will be criminally liable.

            Result of conduct: to constitute a criminal there must always be a result brought about by human; a physical event the law prohibits. Acts reus is the result of human conduct or is an event for example in the case of a murder, it is the victim's death brought by shooting. if the shooting wounds the victim, the accused human being have a body. Artificial person corporation are not capable of being punished. Will be liable for the offence of attempt to murder and for causing simple or grievous hurt and not liable for murder.

            Actus Prohibited by Law : An act is not a crime unless prohibited by law. Only those acts that the law has chosen to forbid are crimes. No crime is committed when a solider, in a battlefield, shoots an enemy. This act being authorized by law, the killing is not the actus reus of crime. Similarly, no crime is committed when a person exercising his lawful right of private defence caused harm to another.

            An act is omission, to be punishable, must be an illegal omission or a breach of legal duty. For instance, a jailor who starves the prisoners in his charge to death is guilty of murder as he failed to discharge his legal obligation to provide melas to the prisoners. Similarly, death of a newly born child, may be caused by a deliberate refusal to feed the baby. Here the unlawful homicide – an actus reus – is caused not by any positive act (a deed of commission) but a negative act (an act of omission). An act of omission attracts criminal liability only when a person is placed under duty to act as recognized by the Criminal law and he, with requisite blameworthy mind, failed to fulfill it.

In Omprakash v. state of Panjab [AIR1956 All 241] the accused omitted to provide food to his wife and looked he in a corner. She had escaped and charged him. The supreme court convicted the accused for attempt to commit murder.

            The requirement of actus reuse various depending o the definition of there crime, actus reus may but with reference to place, fact time, person, consent, the state of mind the victim, possession or even mere preparation. In criminal trespass, the actus reuse is in respect of the place, in house -braking by night, the actus reuse is in respect of both place and time; in offence of kidnapping and abduction, the actus reuse is respect of the person; in the offence of rape, consent is the actus reuse; preparation for dacoity is the actus reuse of an offence; and possession of stolen property constitutes the actus reuse in certain offences.

3. Mens Rea [Actus non facit reum nisi mens sit rea]:

            According to Samshul Huna, the very cornerstone of Criminal Jurisprudence is the mens rea. Mens rea is one of essential element of criminal liability. Mens rea is a technical term. Generally taken to mens some blameworthy mental condition, weather constitutes by intention or knowledge otherwise, the absence of which in any particular occasion, negatives the contention of a crime.

            Mens rea has been often defined to mean a mental element or 'a guilty mind' or 'evil intention'. Mens rea means "an intention to do a forbidden act". It may be defined as the mental element necessary to constitute criminal liability. No act is perse criminal, it becomes criminal only when doer does it with guilty mind. No external conduct, however serious in its consequence s produced bu some wrongful intent, fault or mens rea.

            The doctrine of mens rea is expressed in the familiar Latin maxim, "actus non facit reum nisi sit rea' i.e., the act does not make one guilty unless the mind is also guilty. For example, a person having a gun in his hand shoots at a tiger, but kills a man who was concealing himself behind a bush and was not visible to that person. He could have been held guilty if he know that a man is behind the bush or if he had been negligent but in the present example the person cannot be held guilty because neither he had the knowledge that the victim was behind the bush nor he was in way negligent. So a person cannot be held guilty of an offence if the same could be executable as an accident

            For instance, if A, a blacksmith, is seized by a gang of robbers and is forced to break open the doors of a house for the robbers to enter and commit robbery, he is not liable for committing robbery and for breaking open the doors. A had to concede to the demands of the robbers under a threat of instant death, and to the act of breaking the doors was not a voluntary act for he may be held liable.

            The importance of mens rea can be understood when he consider its application to factual situation. For instance, A supplied as he walked and fell. As he fell he lost his balance and pulled down B with hum. B hit his head against the wall, sustained head injury and died. A satisfies ne portion of the definition of crime, which is doing an act which actus death. But still it does not constitute the offence of murder because another essential element of the offence of murder i.e., the intention to cause death, is absent. Hence A is not guilty of murder. Similarly, if a person intents to dishonestly take a movable property out of possession of a person without his consent, it amounts out of possession of a person without his consent, it amounts to theft But if a person takes a movable property from a person without his consent, but by mistake, the act does not constitute the offence of theft.

            The following acts are considered as offences relating to mens rea under IPC: (i) intentionally joining an unlawful assembly (S. 142); (ii) harbouring rioters knowing fully well that they are rioters (S. 157); (iii) fraudulently dishonestly or with intent to injure making a false claim in a Court (S. 209); (iv) fraudulent use of weighing instrument knowing it to be false (S. 264); (v) uttering words with deliberate intention to wound religious religious feeling (S. 298).

            The principle relation to mens rea is well highlighted by Lord Wright in 'Shenas v. De Ruzlen [(1895) IBQ 918] thus : "There is a presumption that mens rea, an evil intention or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence, but that presumption is liable to be displace either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered.

            In R.S. Joshi v. Ajit Mills Ltd., [AIR 1977 SC 2279] it has been observed that "……Even we may reject the notion that a penalty or a punishment acnnnot be cast in th form of an absolute or no fault liability, but must be preceded by mens rea. The classical view that 'no mens rea, no crime' has long ago been eroded and several laws in India and abroad, especially regarding economic crimes and departmental penalties, have created server punishment even where the offences have been defined to exclude mens rea."

            Mens rea is an essential ingredient in every crime except in the following two types of offence where the presence of mens rea is not important:

            (i) the misdemeanours of causing a public nuisance in which a person may be held liable.

            (ii) the Criminal Contempt of Court.

            According to Wright, J the mens rea is an essential ingredient in every offence except in three cases

            (i) cases which are not criminal but are prohibited in the public interest under penalty;

            (ii) public nuisance; and

            (iii) the case which are in the form of criminal but actually are for enforcing a civil right.

            [in Sherras v. De Rutzon (1895) 1 QB 918]

            Mens rea refuse to the mental element necessary for the particular crime. Mental element may be either intention to do the act or bring about the consequence or in some crimes recklessness as to that consequence, it implies a blameworthy condition of mind which involves a knowledge of the character of the act and foresight of the consequence. Mens rea does not mean a single person state of mind but it takes of different colours in different surroundings. The truth that them is no single precise state of mind common to all crime.

            How to disprove mens rea has been succinctly stated in Halsbury's Laws of England thus. "When the existence of a particular intent or state of mind is a necessary ingredient of the offence, and prime facie proof of the existence of the intent or state of mind has been given by the prosecution, the defendant may excuse himself by disproving the existence in him of any guilty intent of state of mind, for example by showing that he did it accidentally or in ignorance, or that he had an honest belief in the existence of facts which, if they had really existed, would have made the act an innocent one. The existence of reasonable grounds for a belief is evidence of the honesty of that belief".

Origin and Development of Mens rea (Mens Rea in England Law):

Coke traces the origin of the maim 'actus non facit reum nisi mens sit rea to the Sermons of Augustin as rem linguam non facit nisimens rea. The author of 'Leges Henrici' picked it up from some intermediate work in which 'Linguam' may possibly have disappeared. In his institutes,     Coke categorically states the law as follows: "If one shoots at any wild fowl upon a tree, and the arrow killeth any reasonable creature, after all, without any evil intent in him, this is per infortunium." After Coke this maxim was taken in many English decision. Lord Kenyon, C.J. in Fowler v. Padget [(1798) 101 ER 1103] observed that "The intent and the act must both concur to constitute the crime ". Lord Arbinger in R.v. Allday [(1837) 8 C & P 136 at P 139] observed that "It is a maxim older than the Law of England that no man is guilty unless his mind is guilty".

            In olden days English Law was absolute the law made men answerable for all the their deeds may obviously bring upon their fellows The deed was responsible whether he acted innocently because he was the doer.

            The maxim of mens rea has been applied to all common law crimes in England without any reservations its applications its application to statutory offences was however uncertain for a long time. The application of mens rea in statutory offences may be explained through the following leading cases.  

            The Queen v. Prince [88 (1875) LRZ CCR 154 (HL)]

            Henry Prince was tired upon the charge of having unlawfully taken Annie Phillips, an unmarried girl under the age of 16, out of the possession and against the will of her father contrary to Section 55 of the Offences Against the Person Act 1861 (in England). Which states whoever shell unlawfully taken any unmarried girl under the age of 16 out of the possession and against the will of her father or mother, or any other person having the lawful acre or charge of her, shall be guilty of a misdemenanour,"

            It was proved that the accused believed on reasonable grounds that the girl was above 16 and the jury found upon evidence that before the accused took her away she told him that she was 18, and that the accused bona fide believed that statement, and that such belief was reasonable. However, the lower Court convicted the accused and the House of Lords by majority of 15 to one, upheld the conviction.

            The Court though Blackburn J. rejected the contention on the part of the accused that the he bona fied believed and had reasonable ground for believing that the girl so taken by him was over 16 and held that the accused was guilty of misdemeanour (kidnapping) under Sec. 55 of the Offences Against Person Act, 1861.

In the judgement, Blackburn J observed, "But wat the statute contemplates and what I say wrong is, the taking of a female of such tender years that she is properly called a girl, and can be said to be in another's possession, in that other's are or charge. No argument is necessary to prove this; it is enough to state the case. The legislature has enacted that if anyone does this wrong act, he does it at the risk of her turning out to be under 16. This opinion gives full scope to doctrine of mens rea. It he taker believed he had the father's consent, though wrongly, he would have no mens rea. So it he did not known she was in any one 's possession, nor in the care charge of any one, in those case he would not know he was doing the act forbidden by the statute – an act which, if he knew she is in possession and the care or charge of any one, he would know was a crime or not, according she was under 16 of not. He would not know he was doing an act wrong in itself, whatever was his intention, if done without lawful cause.

            The Queen v. Tolson [(1889) 23 QBD 1068] the Case of the Queen v. Tolson is another important case on the subject of mens rea. Martha Ann Tolson married Tolson on 11 September 1818 Mr. Tolson deserted her on 13 December 1881 and went away. Mrs. Tolson and her father made inquiries about him and learn from his elder brother and from general reports there he had been lost in a vessel bound for America, which went down with all hands on board on 10 January 1887, Mrs. Tolson supposing herself to be widow, went through the ceremony for marriage with another man the circumstances were all known to second husband and the ceremony was in no way concealed. 1 December 1887, Tolson retuned from America prosecuted Mrs. Tolson bigamy.

            The accused was tried under section 57 of the offences against the Person Act 1861[of England], which states :"Whoever, being married shell marry any other person during the life of the former husband or wife shell be guilty of felony, punishable with penal served for not more than seven years,  or imprisonment with or without hard labour for not more than two year; with proviso that :……noting in this Act shell extend to any person marring a second time whose husband or wife shell have been continuously absent from such person for the space of seven years last past , and shell been known by such person be living within that time".

            In the trial Court, the jury convicted Mrs. Tolson to one day's imprisonment on the ground that a belief in good faith and on reasonable facts about the death of the husband were no defence to the charge of bigamy. she appealed to the Court of Appeal Crown cases.

            The Court of Crown by majority of nine to five quashed the conviction on the ground that a bona fide belief about the death of the first husband at the time second marriage a good defence in the. Offences of bigamy. It also opined that the statutory limitation for a second marriage of seven years was completed at the time of the second marriage and she informed the real facts to the second husband.

            The Court further observed that it is, however, undoubtedly principal of English Criminal law, that ordinarily speaking a crime not committed if the mind of the person doing the act in questa be innocent. "it is a principal of natural justice and of our law," say Lord Kenyon CJ.in Fowler V Padger, "that act non facit reum fit mens sit rea: the intent act must both concer to constitute to crime".

            Rex v. Wheat & Stock [(1921) 2 KB 119]

            Rex v. Wheat & Stock the accused, who was an uneducated man handed over this case to his solicitor for obtaining divorce for his first wife. He was informed in good faith that he had been grant divorce and he got remarried. His first wife charged him for bigamy he pleaded that he did not know the procedure of law and he believe that he obtained divorce and with bona fide intention he married another lady. The Court held him guilty of bigamy and convicted him because the reasonable belief about the dissolution of marriage would be it defence of charge bigamy, unless the divorce would be obtained from a Court of law. The principal applied in the case are that the accused did an act which was forbidden by law, though he did it by mistake of law, (ii) there is a presumption that mens rea avil intention are knowledge of the wrongfulness of the act is an essential ingredient in every offence, and(iii) the Doctrine of mens rea was resurrected and mode applicable not only common law offence but also to all statutory offences.

            In Dudley v.Stephens case [(1884) 14 Q BD 273], it was observed, at , a man , in ordered escape death from hunger on high seas kills another for the purpose of his flesh, the guilty of murdered although at the time of the act he is in such circumstances that he believes and has reasonable ground for believing  thatit affordes the only chance of preserving his life.

            In R. v. Martinc [(1989) 1 All ER 6529 (A),] the accused was charged with driving whilst disqualified ,sought to raise necessity as a defence the defendant argued that he was forced it drive his wife to so to his work place under the threat of his wife committing suicide unless. He drove her to her son's workplace. The trail court convicted him considering that necessity was no defence to an absolute offence. On appeal, the Court of Appeal quashed the conviction and observed the principle that the defence is available only. If the defendant can be objectively said to be acting reasonably and preparationately to avoid the threat of death or serious injury.

            The above case laws of England make it clear that there had been a confusion with regard to the application of the doctrine of mens rea in statutory offences. Therefore, the doctrine has been resurrected and has been made applicable not only to common law offences, but also to statutory offences.

Mens Rea in Indian Law:

            The term 'mens rea' is not mentioned anywhere in the Indian Penal Code. Though 'mens rea' is an essential ingredient of an offence, it is not essential in respect of certain offences viz waging war (Sec. 121) Sedition (Sec. 124A), Kidnapping (Sec. 759), abduction (SEC. 363), Counterfeit of coins (Sec. 232) etc. of Indian Penal Code.

            Ratanlal & Dhirajlal observe that the maxim 'actus non facit reum nisi mens sit rea' ahs no application to the offences under the penal Code, because the definition of various offences contain expressly a preposition as to the state of mind of the accused."

            According to Mayne, "Under Penal Code a maxim (mens rea) is wholly out of place. Every offence is defined and the definition states not only hat the accused must have done, but the state of his mind with regard also to the act when he was doing it. It must have been done 'knowingly', voluntary', fraudulently', 'dishonesty', or the like…"

            Almost all the offences under the IPC are qualified by one or the other words such as 'wrongful gain or wrongful loss (S. 23), dishonestly (S. 24), fraudulently (S. 25), 'reason to believe (S.26), criminal knowledge or intention (s. 35), intentional cooperation (S. 37), maliciously (Ss. 219 & 220). All these words indicate the blameworthy mental condition required at the time of commission of the offence in order to constitute an offence. Thus though the words 'mens rea' as such are nowhere found in the IPC, its essence is reflected in almost all the provisions of the IPC, 1860. Every offence created under the IPC virtually imports the idea of criminal intent or mans rea in some from or other.

            In Girija Nath v. State [ILR (1954) 2 All 215] it was observed that "mens rea is a loose term of elastic signification and covers a wide range of mental status and conditions, the existence of which would give a criminal to live to actus reus. Sometimes it is used to refer to  foresight of the consequence of the act and at other times to act per se irrespective of its consequences. In some case it stands for a criminal intention of the 'deepest dye' (i.e., a villain or scoundrel of the worst kind) such as is visible in a designed and premeditated murder committed with a full foresight of its fatal consequences. In other cases, it connotes mental conditions of a weaker shade such as are indicated by words like knowledge, belief, criminal negligence or even rashness in disregard of consequences of the act itself irrespective of the consequences of it, or, in other words, a bare capacity to know what one is doing as contrasted, for example, with a condition of insanity  or intoxication which a man is unable to know the nature of the act".

            The Supreme Court of India, on more than one occasions, has reiterated that unless a statute, either clearly or by necessary implication rules out mens rea as a constituent art of crime, a person should not be found guilty of an offence, if he does not have a guilty mind.

            In Stat of Gujarat v. D.P. Panday [AIR 1971 SC 866 P. 868], the Supreme Court Observed thus : "The board principles accepted by Courts in this country as well as in England are : When an offence is created by a statute, however comprehensive and unqualified the language of the statute, it is usually understood as silently requiring that the element of mens rea should be imported into the definition of the crimes, unless a contrary intention is expressed or implied. In other words, the plain words of the general rule of law that no crime cab be committed unless there is mens rea, has not been ousted by the particular enactment".

            As per the IPC mens rea may be of any of the following forms

            Intention : Intention means a purpose or desire to bring about a contemplated result or foresight that certain consequence will follow from the conduct of the person. Intention is the conscious exercise of the mental faculty of a person to do an act, for the purpose of accomplishing or satisfying a purpose. The term 'intention' is expressed also by words such as 'voluntarily', 'wilfully', 'deliberately', 'deliberate intention', with the purpose of, or 'knowingly' in the various sections of the IPC.

            Voluntarily : The word 'voluntarily' has a more extended meaning than the word 'intentionally'. As per Section 9 of the IPC, "a person is said to cause an effect voluntarily when he causes it by means, which at the time of employing those means, he knew or had reason to believe to be likely to cause it".

            Fraudulently : According to Section 25 of the IPC " A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise".

            Dishonestly : Section 24 of the IPC provides that "whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, in said to do that thing 'dishonestly'.

            With knowledge : Knowledge is awareness on the part of the person concerned, indicating his state of mind. Knowledge in an awareness of what he is doing and the consequences of the acts knowledge is the state of mind entertained by a person with regard to existing facts which he has himself observed or the existence of which has been communicated to him by persons whose veracity h has no reason to doubt.

            Corruptly : Corruptly denotes impropriety brought about by bribery, undue influence resulting in acts which are not consistent with the proper discharge of official duty or the right of others. The words 'Corrupt' and 'Corruptly' usually imply that an act is done dishonestly without integrity for the sake of unlawful gain or advantage.

            Malignantly : An act done with a desire to hurt with a deep- rooted ill will or do harm to life violently.

            Maliciously : Russel defines 'malice to be any formed design of doing mischief. Miller says that malice is a wrongful act done intentionally without just cause or excuse. Malice in its ordinary sense means any wicked or mischievous intention, a depraved inclination to mischief or a wanton disregard of the safety and rights of others. A thing is done 'maliciously', if it is done wickedly or in a depraved, perverse or malignant spirit or in a spirit regardless of social duty and deliberately bent on mischief.

            Wantonly : Wantonly means doing a thing recklessly or thoughtlessly without regard to its consequence. It implies a state of mind that is heedless, without excuse, regardless of the rights of others, and perverse.

            Negligence : It does not denote evil intent but denotes that want of care with people of reasonable prudence are excepted to act and the want of which is culpable. In case of negligence the party does not perform an act to which he is obliged; he breaks a positive duty, he does not advert to the act which it is his duty to do. A person is negligent if he fails to exercise such care, skill or foresight as a reasonable man in his situation would exercise.

            Rashly : In rashness, the party does an act which he is bound to forbear; he acts hastely. Here he adverts to the act but not to the consequence of the act he does.

            In Indian Penal Code the words 'rashly' and 'negligently' are used together. The question of liability for negligence or rashness cannot arise until it is established that the man who has been negligent owned some duty to the person who seeks to make him liable for his negligence. For the purpose of criminal law, a very high degree of negligence is required before the felony is established.

Case Law:

               (1) In Srinivasamall v. Emperor [AIR 1947 PC 135], The accused Srinvasmall was a salt distributor. His servant infringed a rule for his negligence. for the purpose of criminal law, a very high degree of negligence is required before the felony is established.

            (2) In Ravula Hari Prasad Rao v. State [AIR 1951 SC 204] a servant of a dealer supplied motor spirit without coupons and also received advance coupons without supplying motor spirit which was an offence under the Motor Rationing Order, 1941. The Supreme Court held that there were no grounds for conviction of the master especially when he was not present at the time of delivery of the spirit. He however was convicted for non-endorsement on coupons by his servant which was mandatory and an absolute rule. Non-observance of such statutory rules was punishable even without mens rea.

            (3) In Sankaran Sukumaran v. Krishna Saraswalthi [1984 CrLJ 317], the Supreme Court observed that mens rea is an essential ingredient of the offence under Section 494 (Bigamy), where the second marriage has been entered in a bona fide belief that the first marriage was not subsisting, no offence under Section 494 is committed.

            (4) In Stall of Maharashtra v. M.H. George, the Supreme Court considered the application of the principle of mens rea in statutory offence, M.H. George carried gold bars on person as a passenger from Zurich of Manila in a Swiss plane and found at Bombay airport as the bringing of gold into India was prohibited except with permission of RBI. The Presidency Magistrate found him guilty but the Bombay High Court held that he was not guilty on the ground that mens rea being a necessary ingredient in the offence, the respondent who bought gold into India for transit to Manila did not know that during the crucial period such a condition had been imposed which brought the case within the terms of the state. On appeal by the State, the Supreme Court allowed the appeal and found the accused guilty for contravention of the provisions of Section 8(1) of the Foreign Exchange Regulation Act, 1947.

            (5) In Nathu Lal v. State of MP [ALR 1966 SC 43] the appellant has a stock of wheat for the purpose of sale without licensing. He contended that he had stored the foodgrains after applying for the licensing and was in the belief that it would be issued to him. He had also deposited the requisite licensing fee. He was purchasing foodgrains from time to time sending returns to the Licensing Authority showing the grains purchased by him. He was prosecuted for committing an offence under Section 7 of the Essential Commodities Act, 1955 for contravening an order made under Section 3 of the same Act, in this case, the Court held that the storage of foodgrains was under a bona field belief that he could legal do so and he did not intentionally contravene the Act. He was acquitted.

            (6) In R.S. Joshi v. Ajit Mills Ltd., [(1977) 4 SCC 94], the Supreme Court observed that a person may be liable for the penal consequences for the at done by him whether he has done it with guilty mind or not. It is matter of common knowledge that for proper enforcement of statutory provision, the rule of strict liability is created and the acts failing in this category are punished even in the absence of guilty mind.

            (7) In Malhan K.A. v. Kora Bibi Kutti [(1996) SCC 281], the accused was a financier. He seized a vehicle for which he financed but did not receive the instalments. The person from whom the vehicle was seized complained to police alleging that the accused had stolen has totally wanting in his vehicle. The Supreme Court held that the element of mens rea is totally wanting in this case and the element of mens rea is under Section 379 of the IPC.

4.         Injury:

            The last element of crime is injury. Injury means to cause harm to any person in body, mind, reputation or property. The act by which injury is caused must be an illegal act. Section 44 of the IPC states: the word 'injury' denotes any harm whatever illegally caused to any person, in body, mind, reputation or property.

            Thus, these are four elements namely, (i) human being, (ii) actus reus; (iii) mens rea; and (iv) injury. However, there are some exceptions to this. There are some crimes without accompanied with guilty mind. There are cause of strict liability such as an offence of bigamy under Section 494 of the IPC. There are crimes even though the actus reus has not been constituted. That means cases where no injury has been caused to any person. There are the cases of inchoate crimes, for example attempt, abetment and conspiracy. There may be a crime when there is neither actus reus nor injury to a human being foe example the offence of making preparation to commit dacoity under Section 399 and assembling for the purpose of committing dacoity under Section 402 of the IPC.

OMBUDSAM

Indian Legal System> Civil Laws> Constitutional and Administrative Laws > Administrative Law> Ombudsman

The concept of Ombudsman at the first originated on Sweden, a Scandinavian state, in 1809. The meaning of Ombudsman is a public official appointed to investigate individual's (citizen's) complaints and the grievance against maladministration, especially against of public authority. Garner defined ombudsman as "an officer of parliament,  having as his primary function. The duty of acting as an agent for parliament, for the purpose of safeguarding the citizens against abuse or misuse of administration power by the executive". Thus the ombudsman is a grievance officer of Commissioner of Administration. If there are gross laps in the functioning o the public administration the citizens have the power to lodge a complaint against the concerned authority. He is an officer of parliament.

Judges Lawyers, or High officers are qualified to be an ombudsman. He is appointed by the parliament, but the parliament does not interface with the functions of the Ombudsman.

Ombudsman can make suggestions or recommendation for changes in the Administrative Law for higher transparency, efficiency, and justice.

Whether appointed by the legislature, the executive, or an organization, the typical duties of an ombudsmen are to investigate constituent complaints and attempt to resolve them, usually through recommendations or mediation. Ombudsman something also aim to identify systemic issue leading to poor service or breaches of people's rights.

Objectives of the Institution of Ombudsman:-

• To correct individual wrong.
• To make bureaucracy more humane.
• To less popular alienation from government.
• To prevent abuse by acting as a bureaucratic watchdog.
• To vindicate civil servants when unjustly accused, and
• To introduce administrative reform.

Ombudsman is a supervisor of the Administrative Authority. It is the duty of the Ombudsman to inquire and investigate complaints made by the Government against the Administrative Authorities. Wide powers are conferred upon the Ombudsman to carry out such actions. The power of Ombudsman are not restricted as power of the Civil Court. Suo Moto action can be taken by him.

Information obtained by the Ombudsman in an investigation is confidential. At the conclusion of an investigation, the Ombudsman may make formal recommendations, including to:

• Refers the matter to another agency;
• Rectify administrative actions;
• Vary administrative practice;
• Reconsider the law which underpins administrative actions; or
• Gives reasons for a decision,

This Institutional has some disadvantage. It can be successful in countries with lower populations but a single person cannot deal with complaints of the large populations as he case of India. Such an institution ma also its hold if there is a large number of sub-ordinate officers on whom the Ombudsman has to rely upon. Some jurists have considered this institution not suitable for India and would amount to impractical and disastrous experiment.

Characteristics of the Ombudsman:

• Established as a separate entity that is functionally autonomous.
• Operationally independent of both the legislature and the execute.
• Ombudsman is a legally established government official, a monitoring specialist, administrative expert and professional.
• Non-partisan.
• Normatively universalistic.
• Client-centered, but not anti-administration.
• Popularly accessible and visible.
• High-status institutions
• Have extensive resource to perform his mission.

The Concept of Ombudsman in India:

The Ombudsman idea is not altogether a new idea for Indian's. it was first talked of in the country by late Mr. K. M. Munishim167, who, in the national debate on the need for a Parliamentary Tribunal of Enquiry commended the Swedish practice of appointing an Ombudsman for controlling maladministration. But the credit of generating a live interest on the Ombudsman goes Later Mr. M.C setalvad, in an inaugural address to the Third All Indi Law Conference in August 1962 (New Delhi) urged upon the participants to undertake a study about its feasibility in India. It was the spoken of by Dr. L.M. Singhiv, M.P., who raised the issue of setting up an office of Ombudsman in emphatic terms and consistently campaigned for it in Parliament during the years 1963-1965.in July 1963, Mr. P.E. Gajendragadkar, Chief Justice of the Supreme Court of India, in his address to the IIPA made a strong plea for its adaptation in India.

Recommendations of the First Administrative Reforms Commission:

In its Report dated 20th October, 1966, ARC left that the redressal of citizen's grievances is a basic to the functioning of the democratic governments, and will strengthen the hands of the governments in administering the laws of the land, its policies "without fear or favour, affection or ill-will" confidence without would progress it would not be possible. It recommended the appointment of one authority called 'LOKPAL' dealing the complaints against the administrative acts of Ministers or Secretaries to Governments at the Center and it in the States and another authority called 'OKATUKTA' in each state and at the Centre for dealing with complaints against the administrative acts of other officials. It also suggested the establishment of inbuilt departmental machinery within each Ministry or Department within each Ministry Department for providing redress against cases that arise at lower levels of administration. This will reduce the number of cases which will have to go to Lokpal or Lokayukta.

The Commission recommended following to be the main feature of the institutions of Lokpal or Lokayukta.

• They should be demonstrably independent and impartial.
• Their investigation and proceedings should be informal in character.
• Their appointments should, as far as, possible be nonpolitical.
• Their status should compare with the highest judicial functionaries in the country.
• They should deal with matters in the discretionary field involving acts of justice, corruption or favouritism.
• Their proceedings should not be subject to judicial interference and they should have the maximum latitude and power in obtaining information relevant to their duties.
• They should not look forward to any-benefit or pecuniary advantage from the executive Government.

Nothing was done to pass he Bill to appoint the Lokapla ad Lokayukta till 2011. Under the pressure of an anti-corruption movements lunched by Anna Hazare, the bill was passed on December 17, 2013, by Rajyasabha and no December 18, 20113, by Lok sabha. The president of India gave assent to it on January 1, 2014, and came into force on January 16, 2014. In 2016 Lok Sabha agreed to amend the Lokpal Act.

Whilst Parliament continued to struggle unsuccessfully with Ombudsman legislation, several states in India took the initiative in the right direction. Act the state level. Orissa 

Was the first state to introduce a Lokyukta Bill in 1970. Maharashtra was the first state to establish the institution of the Lokyukta establish the institution of the including, Bihar, U.P., M.P., Assam, H.P., Gujrat, Kerala, Punjab, Haryana, West Bengal, Chhattisgarh, and Uttrakhand, have also passed Ombudsman Law. retired Supreme Court judge Pinaki Chandra Ghose is appointed as the first Lokpal of India by a committee consisting of Prime Minister Narendra Modi and Chief Justice of the Ranjan Gogoi and Lok Sabha speaker Sumitra Mahajan on 23 March 2019