General Principles of Criminal Liability

1. Human being under a legal duty to act or abstain (a juristic person such as a company is also a "person", BNS s.2(26); IPC s.11).

2. Mens rea: the guilty mind.

3. Actus reus: the prohibited conduct, its circumstances and its result.

4. Injury to another or to society, recognised by law.

• Meaning: the external, physical part of a crime: the act or illegal omission, the surrounding circumstances and (for result crimes) the consequence. The act must be voluntary (a reflex, sleepwalking or a seizure is not an act in law).

• Types: conduct crimes (offence complete on doing the act, e.g., perjury), result crimes (need a consequence, e.g., murder needs death), and state-of-affairs crimes (possession offences, e.g., possession of counterfeit notes or drugs).

• Omission: liable only where a legal duty exists (statute, contract, assumed responsibility, creating a dangerous situation, parent-child). BNS definitions say "act" includes a series of acts and "illegal" covers acts or omissions that are offences or prohibited by law (IPC ss.32-33, 43). Examples: a mother starving her child to death; a railway gateman not closing the gate.

• Causation: the act must be the proximate cause. The "but for" test is the starting point; the chain breaks only by a novus actus interveniens (new, independent, unforeseeable intervening act). Cases: R v. Jordan (grossly abnormal medical treatment broke the chain), R v. Smith (negligent treatment did not break it because the original wound was still operating), R v. White (no causation where the poison was not the cause of death, so only attempt). The "thin skull" rule applies: take the victim as found.

• Concurrence: actus reus and mens rea must coincide in time, but the courts treat a continuing series of acts as one transaction (Thabo Meli v. R; Fagan v. Metropolitan Police Commissioner for continuing act).

• Meaning: the mental element required by the definition of the offence: intention, knowledge, recklessness (rarely named) and in limited cases negligence.

• Intention: the aim or purpose to bring about a result; a person is taken to intend the natural and probable consequences of the act. Motive is different (the reason behind the intention) and is generally irrelevant to guilt but relevant to proof and sentence.

• Knowledge: awareness that a result is certain or likely.

• Recklessness: conscious taking of an unjustified risk; in India shades into "knowledge that the act is likely to cause" death or hurt (see culpable homicide).

• Negligence: failure to take the care a reasonable person would take. Under s.106(1) BNS (IPC 304A) the standard is gross or culpable negligence, not civil negligence (Jacob Mathew v. State of Punjab, 2005, which also set protections for doctors; negligence must be "gross").

• Key mental words in the BNS: voluntarily (intending the result or knowing it likely), dishonestly (intention to cause wrongful gain or wrongful loss), fraudulently (intent to defraud, i.e., deceit plus injury or risk), reason to believe (sufficient cause to believe, not mere suspicion), good faith (due care and attention, IPC s.52, BNS s.2).

• Transferred malice (transmigration of motive): if the accused intends to harm A but harms B, the intent is transferred; BNS s.102 (IPC s.301) applies to culpable homicide. Case: R v. Latimer.

• Malice and motive appear in tort and defamation but are not general criminal law elements.

• Strict liability offences require no proof of mens rea for at least one element. They are typically public welfare offences (food adulteration, drugs, traffic, weights and measures, essential commodities).

• Tests (Gammon (Hong Kong) Ltd v. AG of Hong Kong, 1985): presumption of mens rea; displaced only if the statute clearly or by necessary implication says so; issue must be of social concern; strict liability must promote the statute's objects (by encouraging greater vigilance).

• Indian cases: State of Maharashtra v. M.H. George (1965) (FERA; mens rea not needed for importing gold into India under the notification, so George was liable); Nathulal v. State of M.P. (1966) (Essential Commodities Act; mens rea required, since the offence involved possession of stock without a licence but a dealer who had not delivered under the statutory time got a benefit of doubt); Ravula Hariprasada Rao v. State (1951) (Essential Supplies Act; mens rea is not essential in a regulatory statute); Hariprasada Rao and George are the two most quoted.

• English parallels: R v. Prince (1875) (taking a girl under 16 from her father's possession; honest belief in her age was no defence); Sweet v. Parsley (1970) (presumption of mens rea revived: unless Parliament clearly excludes it, mens rea is required).

• Vicarious liability in crime exists only by statute (employer for acts of a servant under Excise, Food Safety and Standards, Motor Vehicles laws) or by delegation.

• Age of criminal responsibility (BNS ss.20-21; IPC ss.82-83): nothing is an offence if done by a child under 7; a child above 7 and under 12 is protected if of immature understanding (not capable of judging the nature and consequences). Juveniles aged 16-18 charged with heinous offences can be tried as adults after preliminary assessment under the Juvenile Justice (Care and Protection of Children) Act, 2015.

• Corporate criminal liability: BNS s.2(26) includes a company in "person". Cases: Standard Chartered Bank v. Directorate of Enforcement (2005) (a company can be prosecuted even for offences with mandatory imprisonment; the court can impose a fine); Iridium India Telecom Ltd v. Motorola Inc. (2011) (a company can have mens rea through its directing mind; can be liable for cheating); Sunil Bharti Mittal v. CBI (2015) (the directors' acts can be attributed to the company, but the company's liability does not automatically make directors liable: personal role needed); Aneeta Hada v. Godfather Travels (2012) (Negotiable Instruments Act s.141: directors can be prosecuted only if the company is also arraigned).

Individual (direct) liability: a person who personally does the act with the required mind is the principal offender. Several offenders can be "joint" principals when each does part of the act.

Group liability arises when the offence is done by many; Indian law has two main provisions plus conspiracy:

A. Common intention: BNS s.3(5) (IPC s.34)

• Text in essence: when a criminal act is done by several persons in furtherance of the common intention of all, each is liable as if he alone did it.

• Nature: s.3(5) does not create a substantive offence; it lays down a rule of evidence / principle of joint liability. It is read with the main offence (e.g., murder by s.103 read with s.3(5)).

• Ingredients: (1) a criminal act done by several persons; (2) a common intention shared by all; (3) participation of all in doing the act. Common intention needs a prior meeting of minds (can be formed on the spot, even just before the act: Pandurang v. State of Hyderabad, 1955). It cannot be proved by mere presence or association.

• Cases: Barendra Kumar Ghosh v. King Emperor (1925; accused standing guard while another shot the postmaster; Privy Council: "they also serve who only stand and wait"; presence and a part in the plan suffice); Mahbub Shah v. King Emperor (1945; common intention differs from similar intention; requires a pre-arranged plan; Privy Council); Pandurang v. State of Hyderabad (1955); Krishna Govind Patil v. State of Maharashtra (1963); Ramaswami Ayyangar v. State of Tamil Nadu (1976); Virendra Singh v. State of M.P. (2010).

• Number: two or more persons.

• Overt act: ordinarily needed (some act in furtherance, even standing guard); in certain cases omission suffices, but mere presence is not enough.

B. Common object: BNS s.190 (IPC s.149)

• Text in essence: if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members knew to be likely to be committed in prosecution of that object, every person who is a member of that assembly at the time is guilty.

• Nature: a specific offence-creating rule of constructive (vicarious) liability (the liability exists by membership of the assembly). Unlawful assembly itself is BNS s.189 (IPC s.141): five or more persons with a common object falling within the five listed heads (overawe the Government by criminal force; resist execution of law; commit mischief or criminal trespass; obtain property by criminal force; compel a person to do what he is not legally bound to do).

• Cases: Masalti v. State of U.P. (1965; mere presence in an unlawful assembly is enough for liability if the member shares the common object; but courts need caution when many accused are named so that innocent bystanders are not convicted); Lalji v. State of U.P. (1989) (common object can arise on the spot); Charan Singh v. State of U.P. (2004); Yeshwant v. State of Maharashtra (1972) (members can be liable under s.149 even if the offence is outside the original object but within "likely to be committed").

• Number: five or more. If a court acquits all but two, s.149 cannot be applied unless it is clear that others unidentified were also there; if only two or three are convicted and the rest unnamed, the court looks at whether the evidence shows five.

C. Common intention vs common object (very frequent exam point)

D. Other forms of group or constructive liability

• Criminal conspiracy: BNS s.61 (IPC s.120A-B); covered in topic 2.

• Joint liability for certain acts: e.g., dacoity with murder (BNS s.310(3); IPC s.396) makes every member of the gang liable; house-breaking at night by many persons where death or grievous hurt is caused (BNS s.331; IPC s.460).

• Abetment: liability for aiding, instigating or conspiring (topic 2).

• Statutory vicarious liability: employer, partner, director (NI Act s.141; Companies Act; Food Safety and Standards Act; Environment Protection Act).

• Organised crime (BNS s.111): a new group offence for continuing unlawful activity by a syndicate (see topic 4/5).

• Mob lynching (BNS s.103(2)): five or more persons acting together and committing murder on grounds of race, caste, community, sex, place of birth, language, personal belief or similar grounds; each member liable with death or life imprisonment and fine.