Criminal law

This article is written by Shruti Yadav, currently pursuing an integrated BA-LL.B degree from Jagran Lakecity, Bhopal. This article talks about the criminalisation of omission and related case laws.


A person cannot be penalised for conceiving criminal thoughts. All crimes that can be penalised necessitate “actus reus and mens rea”, which is Latin for guilty act and guilty mind, implying omission and criminal intent. The former represents the physical aspect of crime, and the latter represents its mental aspects. Actus reus has been defined as the result of human conduct as the law seeks to prevent. An act or omission may be positive or negative. Mens rea is a loose term of elastic signification and covers a wide range of mental states and conditions, the existence of which would give a criminal hue to actual reus. There might be actus without mens rea. For example, if an infant of 2 years while playing with a loaded pistol lets it go and kills another person, there is actus reus without mens rea. There might also be mens rea without actus reus. 

An evil deed may be committed in mind in ethics or religion and might constitute a wrong, even though it has not manifested itself in physical conduct. It may further be noted that mens rea as such is not punishable. However, sometimes an act alone is sufficient to constitute a crime without the existence of a mens rea. The guilty intent is not necessarily that of intending the very act or thing done or prohibited by law, but it must at least be the intention to do something wrong. Thus, mens rea requires both a will direct to a specific act and knowledge about the consequences that will follow from a particular act. But to prove whether a crime has been perpetrated, it is usually essential to attest both the actus reus and the mens rea. 

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Still, some crimes do not need proof of mens rea; those crimes are distinguished as strict liability crimes. Actus reus refers to the act or omission of a crime’s physical factors as law and ordinances require. Within the actus reus, there needs to be both a deliberate act and a sequential result. There are, nevertheless, some exceptions to the deliberate act condition known as omissions. A criminal act or a criminal omission of an act must have transpired. This means by refraining from doing something or by not performing an act, and a crime is committed. The omission of an act can also create the basis for criminal liability. An omission is defined as failure to perform a specific act. The act may be done innocently or in negligence, but it can still give rise to an obligation only when the law inflicts a duty to act and the defendant is in violation of that duty. 

Omission and its types 

Omission means when a person is bound to do something but omits to do so. Types of criminal omission are:

Omission as actus reus 

Omission, or the negligence to act, can sometimes be the basis for criminal liability.

  • For example, an expert swimmer who sits by the side of the pool and cordially enjoys watching a child drown is not perpetrating any crime by his act of omission to save the child (assuming he is not the lifeguard). The general reasoning behind this is that people should be penalised only for intentionally adding to human suffering, not for being indifferent towards it. Moreover, in many circumstances, coming to another’s assistance might put the rescuer in jeopardy. There is far too much hassle in determining the exact limit. The risk to the rescuer becomes too much to make them criminally liable. 
  • However, when a law requires specific action on the part of a citizen, inferring he did not do any harm is not adequate. In these cases, wrong is done to society by not acting (in the proper manner). Neglecting to pay taxes, child support, and alimony are several instances of omission as actus reus.

Only when there is no association, physical, contractual, or otherwise, between the witness and the victim there is no practical ground for actus reus. Even when there is a duty to act, the offender must still maintain the requisite mens rea to be criminally liable. A duty to act occurs under the five circumstances discussed below:

Familial relationship 

As stated above, there are limited situations where criminal law imposes a duty to act. Perhaps the most prominent of these is when there is a familial or domestic relationship between parties. 

  • For example, a father, refusing medication to treat his son’s illness because of his religious beliefs will be convicted if consequently, the son dies. The rationale here is practical as a father, it is his requisite duty to keep his son alive; by ignoring to seek medical help, he was liable for his son’s death and the ailment that killed him. The reverse relationship, where a mother living in the home of her daughter, was poorly cared for and acquired infected bedsores as a result of her condition. She passed away after being taken to the hospital for treatment. The daughter was found to have been careless in the care of her mother and was held liable.

Similarly, familial relationships like a mother, father, wife, children have duties regarding each other, and an omission to act on such duty can be penalised.

Public service 

Omissions are also punished when the appellate is a public servant. They have duties to safeguard the citizens, and negligence to do so can have serious repercussions.

  • For example, a police officer can be convicted of misbehaviour in a public office to watch a passer-by be beaten to death and not intervene. This case establishes the indispensable precedent that government officials have a duty of care towards society. Due to the high-stakes reality of their work, neglecting to act when they clearly should have acted can lead to criminal sentences. This assures that they feel compelled to perform their job precisely and comprehensively and that the public receives the security they warrant. 

Creation of danger 

One of the more obscure situations where an individual can be held criminally liable for an omission is in a situation where they created a hazard to others. This establishes a common-sense precedent that a person who creates a threat is under a legal duty to mitigate the effects of that threat. An individual who contributes to a life-threatening state of affairs must take reasonable steps to save the other’s life. These rulings are not consonant with the stress put on autonomy and free will in criminal law, but they are justified. For example, if you hurt someone in self-defence, even then, you have a duty towards them that no harm caused is fatal and to seek medical aid for him. In the pursuit of the common good, such careless behaviour must be criminalised. 

The voluntary postulate of duty 

Possibly the most ambiguous criminalisation of omissions comes in the form of the voluntary postulate of duty.

  • For example, the first defendant took his kids to live with another woman. The woman being the second defendant, failed to feed the kids, and they starved to death. Here both the defendants will be held guilty. There is a grey area here concerning the liability of the second defendant. It may be contended that due to the lack of a concrete relationship between her and the kids and her bona fide attempts to care for them, she should not have been liable for their death. 

Contractual relationship

Contractual obligation, verbal agreement, or even essential involvement can likely lead to criminal liability for omission.

  • For example, if a six-foot man, a lifeguard, or a babysitter would probably be criminally liable for the child if it drowned or died. If he told the parents that he would watch the child while they stepped away and then failed to do so, he would seemingly be liable. Even if he negligently collided with the child in the pool and observed the child drown without help, he could be held criminally liable for killing on the grounds of omission.

Significance of omission in Criminal Law 

Section 33 of the Indian Penal Code 1860 deals with criminal omission. Its importance and usage in criminal law can be understood better through case laws:

Case laws 

R v Miller, 1983

In this case, the appellant had been out drinking for the evening. He went back to the house he had been staying in and fell asleep on a mattress with a lighted cigarette in his hand. He woke up and saw that the cigarette had started a small fire. Upon seeing the fire, he got up, went to another room, and went back to sleep. The state did not rely on the defendant’s acts in falling asleep with a lighted cigarette as being reckless at his trial. However, it relied solely because he failed to take steps to put the fire out or call the fire brigade upon becoming aware of the fire. The defendant had created a hazardous situation and owed a duty to summon the fire brigade upon becoming conscious of the fire. He was accordingly liable for his omission to do so.

R v Gibbons and Proctor, 1918

In this case, the defendants, a father, and mother, starve their 7-year old daughter to kill her. As a result, she died of starvation due to her parent’s neglect. The parents were found guilty of homicide. The parents had a duty to protect their children. The court decided that murder can be committed by a failure to act in circumstances where a duty of care to the victim is imposed on the defendant.

The court suggested it was self-evident that the father was under a duty to look after his own child. Although the child did not belong to his wife biologically, she was also found to be under such a duty. This is because she had taken money for food from her husband which could have been used to feed the victim. The court also said that a calculated and deliberate strategy of starving someone to death must clearly be capable of constituting a killing.

R v Stones, 1989

In this case, the police captured the offender while committing a burglary. He had a knife on him at the time and was accused and convicted of aggravated burglary. He appealed, disputing that he had no intention to use the knife in the burglary and was only carrying it as the lads from Blyth were after him. The conviction was upheld. Possession of the weapon at the time of the burglary is all that is required for aggravated burglary. There is no mens rea required as to the possession. 

DPP v Santana-Bermudez, 2003

In this case, before being examined by a police officer, the defendant was asked whether they possessed any needles or sharp objects. The defendant denied, knowing he did have a needle in his pocket. The police officer was stabbed by the needle in the defendant’s pocket and was wounded. The defendant pleaded his sentence for assault occasioning actual bodily harm. He claimed that he had not committed any positive act which caused the police officer’s injury. 

The court held that the defendant had placed the police officer in a critical situation. The police officer was endangered to a reasonably foreseeable risk of injury by the defendant’s misleading statement. Therefore, the defendant’s omission to correct his statement and avert the dangerous situation constituted the actus reus of the crime.

Good samaritan law

Morality, virtue, and righteousness cannot and must not be mandated by the judiciary. One of the recommended alternatives to this dilemma that we have seen in other spheres, such as France and Germany, is the encumbrance of  ‘Good Samaritan’ laws. These laws vary from requiring a duty to save someone in peril to imposing a duty to act to stop a crime. Both jurisdictions impose a ‘duty to rescue’ inciting a penalty of arrest or a fine. Antagonists of these laws in other jurisdictions claim that the many subtleties involved in selecting to initiate a rescue would make a failure to rescue challenging to prosecute. The latent rescuer may have only a split-second to evaluate their abilities to perform a rescue and the threat they may face in doing so. In any dangerous effort to deal with rescuers under the law, courts would need to approve a subjective test as to the complexity of the rescue from the rescuer’s perspective at the time. Legislative efforts to impose a duty to help others may be well-meaning. However, to be valid, they would have to be no more extensive in scope than the current state of the common law. 


According to the literal definition of actus reus, no omission could constitute a crime. However, the courts have rightly adopted a logical, albeit circumspect, approach to situations where a person’s failure to act should be regarded as criminal. In most of the cases mentioned above, especially those where people have laid back and left their family members to die from negligence, there can be no disbelief that the austerity of a criminal conviction is justified. This desire to issue just verdicts must be carefully pondered with the fundamental legal principles of personal liberty and autonomy.

Only the most outrageous omissions should be criminalised, and even then, only in situations where the person in question had a definite duty to act, be it a consequence of their conduct, their profession, or their familiar relationship to those harmed by their omission. This should be how omissions are to be examined, estimated, and proved. Being the master of the ceremonies, the trial judge should be watchful against cross-examination on trivial omissions and inconsistencies.


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