Mens-rea- Actus non facit reum nisi mens sit rea – (act alone does not make a man guilty unless his intentions were so.) Mens –rea is the foundation of Criminal Liability- PCS-J mains answer series by Sudhanshu Mishra

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Mens-rea- Actus non facit reum nisi  mens sit rea – (act alone does not make a man guilty unless his intentions were so.)

Mens –rea is the foundation of Criminal Liability


The role of mens-rea in our criminal law is a most controversial question among our jurists. But in routine it is imported in every crime though at some place it is not expressly mentioned.

In various definition of offences in Cr.p.c. , mens-rea seems an important ingredient of that offence and also to decide the liability.

We can mention two behold of thoughts on the issue of mens-rea.

First one is fraud in the judgment of Wright J. in Sherraz v/s De-Rutzen, According to that, in every statute mens-rea   is to be implied unless the contrary is shown and second one is of Justice Kennedy in Hobbs v/s Winchester corporation, According to which there should be shown literally in law or statute that mens-rea is required or not.

In case of R v/s Prince, this issue is discussed widely. In this case, Henry Prince, the prisoner was charged for having taken an unmarried girl, being under the age of 16 years, out of possession and against the will of her father and also that she was under age of 16 years.

All these facts necessary to support for conviction existed except that the girl, though proved by her father to be fourteen years old looked much older than the Jury found. Upon reasonable evidence that before the defendant took her away she had told him that she was of 18 years and that the defendant bonafide believed on that statement. On the part of the prisoner law of mens-rea should nevertheless be applied and there be no conviction in the absence of criminal intention.

On the other hand, it was held by Black born J., that the prisoners’s belief that the girl was of 18 years old is no defence.  He further said that as the case is reserved, we must take it as proved that the girl was in the possession of her father and that he took her, proving that he trespassed on the father’s right and had no color of excuse for so doing.

The Queen v/s Tolson, is another case on the subject of mens-rea.

It was held in Mantu Lal. v/s State of M.P., that mens-rea is an essential element of a criminal offence. Doubtless a statute may exclude the element of mens-rea but it is sound role of construction adopted in England and also accepted in India to construe a statutory provision creating an offence in conformity with the common law rather than against it unless the statute expressly or by necessary implication excluded mens-rea.

The mere fact that the object of the statute  expressly or by necessary implication excluded mens-rea or the mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil is by itself not decisive  of the question whether the element of guilty mind is excluded from the ingredient of an offence.

Mens-rea by necessary implication may be excluded from a statute only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated. The nature of mens-rea that would be implied in a statute creating an offence depends on the object of the Act and the provisions thereof.

In India, law is codified and offences are carefully defined. The definition itself contains the essential requirement to constitute the crime.

In Indian panel code, Words denoting mens-rea are voluntary, reason to believe, dishonestly, fraudulently which are defined and words corruptly, malignantly and maliciously, wantonly, rashly and negligently are used occasionally but not defined in the code.




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