This article has been written by Arpita Tripathy, pursuing B.A. LLB (Business Honours) from KIIT School of Law. This is an exhaustive article which deals with the State’s responsibility to detect, control, and punish crime.
Table of Contents
Introduction
In every society, an individual would prefer a safe and healthy environment free of crimes. No one wants to live with fear or want to be intentionally hurt by others’ acts or omissions. For such an environment it is important to have a strong and effective Penal law. The Penal law would recognize the crime and would try to deter them by sanction. For the maintenance of even basic human rights, it is important to have strong penal policies. Therefore, a law commission was constituted for the formation of a uniform criminal law for the country, and thus, the Indian Penal Code, 1860 was born.
Evolution of the state’s responsibility
In the ancient time, there was no Penal Code which would lay down the rules and regulations in case of misconduct which is harmful to the community. Every man was attacked and he could be punished on an individual basis. There was no formal system for recognizing and punishing the crime.
In the Ancient Hindu Criminal Law, when Kings came into power it was then that the State and not an individual was given the power to punish the wrongdoer. During that time there was no classification of crime. During the period of Ancient Hindu Law, the Code of Manu was relied on. In the Hindu Law, the power to punish the offender was the duty of the King. However, in Western countries, the power to punish an individual was in the hands of an individual. Later, in the Medieval Period, the power to punish was later shifted to society and was finally handed over to the State.
When the East India Company arrived in India, the Muslim criminal law was prevalent in India. Later, the Company after noticing flaws proposed reforms. The crimes and punishment were tried to make it proportional. Subsequently, the requirement of a Penal Code was felt. In 1834 a law commission was set up under Lord Macaulay which drafted a Penal Code for the country. The drafting was completed in 1850 after revision and was presented in the legislative council which gave its assent. The bill for the Indian Penal Code was passed in 1860 and thus, it became a law.
Responsibility of the state to deter crime
A crime can be said as conduct which causes menace in society and its interests. Crime is forbidden and punishable because of its ill intention towards the interest of the community.
The countries try to keep their citizens safe. No matter what ideology a country and its government follow, a State always formulates laws for maintaining law and order. The weapon that the State uses for criminalizing an act or omission is Penal Law. The Penal law declares that an act should not be done and provides a reasonable justification for why it should not be done. The law also provides the elements in an act or omission which will detect it as a crime. Further, to deter such an undesirable human act, the State attempts to make it punishable. Criminal law allows the State for inflicting punishment on the wrongdoer. It is even said that crimes originate from the Government’s policies.
When the State thinks that the conduct falls within an area which has to be forbidden to maintain protection of individuals, protection of the children, women, aged groups, protection against frauds, protection against violence, etc., then it formulates policies which criminalize such forbidden conduct.
The legislature should only criminalize conduct when it thinks that the conduct is serious enough to be criminalized. If crimes that are not serious in nature start getting criminalized then it will weaken the significance of the Penal law. While formulating policies for criminalizing conducts principles of equality, punishment to be proportionate to the seriousness of the crime, there should be equal treatment and criminal law should be used to criminalize only substantial wrongdoing.
The legislature also has to look if the act or omission really needs a law to intervene. It has to be ascertained that the conduct is necessary to be declared as a crime for the protection of the community, it has to be made sure that the crime and the sanction imposed for its commission are proportional to each other.
General elements of crime
Crime and morality
Morality is an extensive term, crime is a narrower term. Not everything which is immoral can be termed as a crime. Lack of sympathy, ego, anger, greed is immoral deeds that have not and cannot be criminalized. Crime is the narrow term for acts and omissions which have to be proved to be causing harm to a specific individual or the community at large. Acts like rape, theft, fraud, bigamy etc., are both immoral and illegal. Law comes into the picture when ethics and morality fail.
Essential elements to constitute a crime
For a crime to be committed there should be both wrongful intentions and along with it, there should be a wrongful act. A wrongful act without ill intention cannot be said as a crime and just an evil intention without any act cannot also be termed as a crime. ‘ Actus non facit reum nisi mens sit rea’ is the maxim which means that simply an act cannot make a man guilty of a crime if he did not possess any ill intention. No act is a crime unless there is an evil intention behind the conduct. The two most fundamental elements of the crime are actus reus and mens rea.
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Actus Reus
The literal meaning of ‘Actus’ is an act, and ‘Reus’ means prohibiting, thus Actus Reus means an act which is prohibited by law. An evil intention without any overt act cannot be said as a crime. This describes an act to cause harm to another person.
If A thinks about the murder of B but does not commit the crime then such an ill intention cannot be punished without a conduct. There are two categories of Actus Reus. Section 32 and 33 of the Indian Penal Code defines an act and takes into its account both an ‘act’ or ‘omission’.
It has to be seen that the act which has been prohibited by law is voluntary in nature. Conduct will not be considered as a crime if it has not been done with their own free will. If a person’s conduct is out of his own control and the circumstances around him forces him towards such conduct, then it cannot be said as his own voluntary act. Therefore, an act to be criminalized should be committed voluntarily, under their own control.
Conduct to be punishable has to be forbidden by law. Further, if conduct does not even injure anyone even then it can be held as a crime. For example, forgery does need to show that harm was caused. When conduct requires harm or injury to be shown then it has to be ascertained that the conduct directly resulted in injury. The conduct should not be a proximate cause.
When the death of a person occurs after the treatment of that person, it cannot be said that the treatment was not good and therefore, the harm was caused. This principle is called ‘minimal causation’. The concept has been derived from Section 299 explanation 2 of the Indian Penal Code, where it has been said that if after treatment a man dies, then it cannot be said that proper treatment would have saved the person.
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Mens Rea
No conduct can be called a crime without evil intention. It is an essential element for criminal liability. The intent of one kind of offense might not be the intent in another kind of offense. It has to be clearly understood that intention and motive are not synonyms in law, even though we use the terms interchangeably in our daily lives.
Intention means the state of mind while committing the offense and the will of the accused to see the result of his conduct. However, the motive is the reason behind such a conduct. In other words, motive is something that prompts a man to form an intention. For example, if A and B are enemies and A in order to take revenge from B, stabbed B with an intention to kill him. Here, revenge is a motive and the intention to kill and see B dead is intention. For the purpose of determination of crime, the motive is not taken into account, however, the intention is an essential element for determination.
Intention and knowledge are also distinguishable. Knowledge means knowing the consequences of the act. A man might be aware of the result of the act but might not be having the intention to cause it.
Punishment
Punishment can be understood as the sanction and a means of social control imposed by law for the commission of an act or omission forbidden by law. If no punishments would have been imposed then the victims would have lost their trust and belief on the law. Punishment has been a part of our society since ages. In ancient times, punishment was just a form of retaliation or revenge. As time passed, it was realized that the State can protect its citizens from the chaos not only by guaranteeing them rights but also by punishing the ones who create menace. The family members of the victim were asked to retaliate. In Ancient Hindu Law, the provision of providing monetary compensation was also present.
There was also a concept that all the crimes were to be dealt with equal severity and the crime and punishment were not proportional. In the medieval period, severe sanctions were imposed even on minor offenses so that there is deterrence in the society. However, later this concept was abolished and countries started punishing individuals according to the severity of the crime, in other words, crime and punishments started to be proportional in nature. But now, this concept has also vanished. Now, the concept of having sympathy for the offender has taken its place. However, while deciding for punishments it should also be kept in mind that too much sympathy towards the offender would do wrong to the victim and his family.
Reformation, preventive, utilitarian, deterrent and rehabilitation are the main objectives of punishments. The death penalty is an example of prevention as the main objective. The death penalty or life imprisonment would prevent the offender from committing heinous crimes again. However, the focus of punishments should not be only on reformation but also the rights of the criminals. For a reasonable punishment, it has to be seen whether a proper investigation was conducted or not, whether after punishment the offender is transformed and can start a new life or not. Sections 53 to Section 75 of the Indian Penal Code talks about punishments.
Landmark cases
- State of Gujarat v. Hon’ble High Court of Gujarat– The question before the Supreme Court was, whether the prisoners who are doing daily labour should be paid or not. It was correctly stated that reformation should be the main objective of punishment. If a person is working hard then he should be paid. This payment will be used later when he comes out of prison. He will be handed over his payment which will enable him to start a new life. However, in the same judgment, it was also said that the rights of the victim and his family should be kept in mind and not too much emphasis should be given to reformative theory.
- State of Uttar Pradesh v. Arun Kumar– In this case, it was looked into if motive could decide if a person is guilty or not. In the case, the prosecution was only able to determine the motive but could not prove most of the important elements for a conduct to be termed as a crime. It was held that only proof of motive cannot be used for a conviction.
- Rewaram v. State of Madhya Pradesh– In this case, minimal causation was discussed. Here, the husband had caused several injuries on the body of wife. She was admitted and an operation was conducted. During the operation, her body’s temperature rose and she died because of the ruined condition of her body. It was contended by the husband that the death was because of the hyperpyrexia and not because of the injuries. However, the court said that the wife died of hyperpyrexia because of her degraded condition caused by the husband. Thus the injuries inflicted by the husband was the direct cause of the death.
Conclusion
Thus, through the passage of time, the power to control and punish crimes went from the hands of the individuals to the hands of the State. While legislating policies on crimes, it has to be carefully seen that the principles should be followed which will efficiently deal with crimes.
References
- https://grrajeshkumar.com/class-notes-on-criminal-law-i-1st-sem-3-year-ll-b/
- https://www.studocu.com/in/document/osmania-university/general-principles-of-criminal-law/lecture-notes/llb-notes-criminal-law-i/2971775/view
- http://14.139.60.114:8080/jspui/bitstream/123456789/738/14/Criminal%20Law.pdf
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