Crime: meaning, elements and stages
Bharatiya Nyaya Sanhita · Unit I · Topic 1 of 29 · 6 min read
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Cases checked to exist. Read the judgment before quoting a holding.
Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.
1. Conceptions of crime
No single definition of crime has satisfied everyone, and examiners like you to show that you know why. The common approaches are these.
- Moral conception. Crime is conduct that offends the moral sense of the community. Blackstone spoke of a violation of public rights and duties due to the whole community. The difficulty is that many crimes (parking offences, licensing breaches) carry no moral blame, and many immoral acts (ingratitude, lying in private) are not crimes.
- Social conception. Crime is conduct harmful to society, which the State therefore takes up as its own cause. This explains why the State prosecutes even when the victim forgives.
- Procedural or legal conception. Kenny and later writers accepted that the only reliable test is formal: a crime is an act or omission which the law punishes in proceedings brought in the name of the State. The Bharatiya Nyaya Sanhita, 2023 takes this route. Section 2(24) defines “offence” as a thing made punishable by the Sanhita.
2. Crime, morality and tort
Crime and morality overlap without coinciding. Murder and theft are both crimes and moral wrongs. But the law has also withdrawn from purely private morality: the Supreme Court struck down the criminalisation of consensual same-sex relations in Navtej Singh Johar v. Union of India, 2018 INSC 790, (2018) 10 SCC 1, and adultery in Joseph Shine v. Union of India, 2018 INSC 898, (2019) 3 SCC 39. The BNS carries neither offence forward.
Crime and tort differ in four ways worth listing in an answer:
- A crime is a wrong against the community; a tort is a wrong against an individual.
- Crime is prosecuted by the State; a tort is sued on by the injured person.
- The object of criminal law is punishment (and deterrence, reform); the object of tort is compensation.
- A crime cannot generally be settled by the parties (except compoundable offences); a tort claim can be compromised or waived.
The same act can be both: assault, defamation and negligent driving causing death all give rise to a prosecution and a civil claim.
3. The elements: actus reus and mens rea
The maxim is actus non facit reum nisi mens sit rea: the act does not make a person guilty unless the mind is also guilty. Four elements are usually listed: a human being, a guilty mind, a guilty act or omission, and injury to another or to society.
Actus reus is the physical element: a voluntary act or illegal omission, with its circumstances and consequences, as the definition of the offence requires. Section 3(4) BNS provides that words referring to acts extend also to illegal omissions, and s.2(1) and (25) make “act” and “omission” include a series.
Mens rea is the mental element. The Sanhita rarely uses the phrase; it writes the required mental state into each offence: “intentionally”, “knowingly”, “dishonestly” (s.2(7)), “fraudulently” (s.2(9)), “voluntarily” (s.2(33)), “reason to believe” (s.2(29)). Motive, by contrast, is not an element; a good motive does not excuse a crime, though it can matter at sentencing.
4. Strict liability
Some offences, usually created by regulatory statutes, are punished without proof of mens rea. The classic English case is R v. Prince (1875): Prince took a girl under sixteen out of her father's possession, honestly and reasonably believing she was eighteen. He was convicted, because the statute was read as making the girl's age a matter on which the accused acted at his peril.
In India the leading case is State of Maharashtra v. Mayer Hans George, 1964 INSC 176, AIR 1965 SC 722. A German passenger in transit through Bombay carried gold concealed on his person. A Reserve Bank notification restricting such transit had been issued shortly before, and he claimed not to know of it. The majority held him guilty under the Foreign Exchange Regulation Act and the Sea Customs Act: mens rea is presumed to be required, but the presumption is displaced where the statute, by its words or by necessary implication, excludes it, and the object of these laws (protecting the economy against smuggling) would be defeated if ignorance were a defence. Subba Rao J. dissented.
Strict liability is common in food safety, weights and measures, excise, customs and motor vehicle law. It is the exception; the starting point remains that a statute is read as requiring mens rea unless clearly excluded.
5. Stages of crime
- Intention. Not punished: the law cannot try a thought.
- Preparation. Generally not punished, because it is hard to prove the purpose and the person may still turn back. Exceptions exist where the preparation is itself dangerous: preparation to wage war (s.149 BNS), to commit dacoity (s.310(4)), and making or possessing instruments for counterfeiting.
- Attempt. Punished. Section 62 BNS (old s.511 IPC) is the general provision; some offences have their own attempt sections, such as attempt to murder (s.109).
- Commission. The completed offence.
The line between preparation and attempt is treated in the note on conspiracy and attempt.
6. Variations in liability: an overview
The Sanhita relieves or reduces liability in defined situations, mostly in Chapter III, the General Exceptions (ss.14–44). By s.3(1) every offence is read subject to them.
- Mistake of fact in good faith (ss.14, 17); mistake of law is no excuse.
- Intoxication (ss.23, 24): a defence only if involuntary.
- Compulsion by threats of instant death (s.32).
- Legally abnormal persons: a child under seven (s.20), an immature child between seven and twelve (s.21), and a person of unsound mind (s.22).
- Private defence (ss.34–44), consent and necessity.
7. Parties to crime
Where several people are involved, the Sanhita uses distinct doctrines rather than the English categories of principals in the first and second degree:
- Common intention, s.3(5) BNS (old s.34 IPC): each person who acts in furtherance of the common intention of all is liable as if he did the act alone.
- Abetment, ss.45–60: instigation, conspiracy or intentional aid.
- Criminal conspiracy, s.61: the agreement itself.
- Common object of an unlawful assembly, s.190 (old s.149 IPC).
8. The State's obligation
Because crime is a public wrong, the State, not the victim, is responsible for detecting, investigating and prosecuting it. The machinery is in the Bharatiya Nagarik Suraksha Sanhita, 2023 (procedure) and the Bharatiya Sakshya Adhiniyam, 2023 (evidence). Article 21 adds a constitutional dimension: a fair investigation and trial, and protection of the victim, are part of the right to life and personal liberty, and the State's failure to protect life can attract public law compensation.
How this is examined
As an essay: “Define crime and explain its essential elements”, or “Discuss the maxim actus non facit reum nisi mens sit rea with exceptions.” As a short note: mens rea, strict liability, stages of crime, or crime and tort. Structure the essay as conceptions, elements, maxim, strict liability with Prince and M.H. George, and the four stages. Cite the BNS provisions on omissions and definitions of mental states; an answer still quoting only the IPC will lose marks now that the Sanhita is in force.
Now try the real questions: Bharatiya Nyaya Sanhita past question papers.