Himachal Pradesh National Law University

THEORY OF STRICT LIABILITY AND ITS APPLICATION UNDER IPC :

AN ANALYSIS

Submitted By : Course In-charge

Keshav Aggarwal1 Mr. Santosh Kumar Sharma

1
1120192022
BBA LLB (Hons.) 3rd Semester
Table of Contents

 Introduction

 Strict Liability in Tort

 Absolute Liability

 Strict Liability in Criminal Law

o Statutory Rape

o Waging War

o Sedition

o Public Nuisance

o Selling Alcohol to Minors

o Traffic Offences

o Keeping wild animals

o Consumer Product Liability

 Defenses

 Difference between Strict Liability in Tort and Criminal law

 Position of Strict Liabilty in India

 Ananlysis of Indian judgement

  Conclusion

Introduction
The basic or the fundamental principle which is laid down in the criminal liability is actus rea
that is wrongful action and the mens rea that is false intention . Technical term in the criminal
law is mens rea , that is generally used to indicate some blameworthy mental condition, and the
absence of mens rea in any particular situation neglects the condition for the crime . Mens rea is
an important part of criminal liability . Actus non facit reum nisi mens sit rea, “the act itself
does not make a man guilty unless his intentions were so” it is an old doctrine which is used to
clear both the essentials of criminal liability . But some of the offences are of the nature which
does not require mens rea to be proved for proving the liability. These types of offences are
generally covered under the rule of strict liability J. Herring gives a very simple definition of
strict liability offence as follows:
“A defendant is guilty of a strict liability offence if by a voluntary act he causes the prohibited
result or state of affairs and in this case, there is no need to prove that the defendant had a
particular state of mind.”
The doctrine of strict liability is a rule that proves or authorizes the conviction of an ignorant
person , even though the crime, by definition, requires proof of a mens rea. An example is the
rule that a person who is ignorant of, or who misunderstands the meaning of a criminal law may
be punished for violating it, even if her ignorance or mistake of law was reasonable.
Strict Liability in Tort
Sometimes the act done are so dangerous that the court has to penalize that acts for instance even if
the act is done by some other person then only the defendant will be responsible . This is exactly
what happens under the rule of strict liability. This rule lays down some important principles for
commercial and other activities that may result in some dangerous damages. The rule of strict
liability is very important under the law of torts as well as the law of crimes . The nature or the basis
of this principle lies on some horrifying nature of some hazardous activities . For example the
escape of poisonous gases in the Bhopal gas tragedy case will attract this rule.
Under the strict liability rule, the law makes people pay compensation for damages even if they are
not at fault. In other words, people have to pay compensation to victims even if they took all the
necessary precautions. In fact, permissions allowing such activities often include this principle as a
pre-condition.

Rylands v. Fletcher
The rule of strict liability was originated from the case of Rylend V. Fletcher2 . The facts of the case
are as follows .
Facts :- The defendant was the mill owner and wants to improve the supply of water in the mill, so
he hired a group of engineers to construct a reservoir . The main problem occurred when the
reservoir was so much filled with the water that water starts overflowing from it and the water
flowed into the mines of the plaintiff resulting in damging the plaintiff’s mines .

2
(1868) UKHL 1 ,(1868) LR 3 HL 330
It is clearly visible that the engineers who were the independent contractors were clearly at fault and
the defendant also took the defence that there was no fault on his side it was the contractors who
were negligent while making the reservoir.
After considering the facts of both the sides the court concluded and laid the rule of strict liability by
stating that whenever a individual keeps something hazardeous on his land , it is his duty that he
checks that the thing shouldn’t escape from his land and if it escapes and damages the other person
property , the person will be strictly liable.

Rule of Absolute Liability

The Stricter version of the rule of strict liability was applied by the honorable Supreme court in the
case of MC Mehta Vs Union of India3 that is also known as Bhopal gas leak case or oleum gas leak
case in which there was an escape of oleum gas from Shriram foods and limited, damaging the
nearby industries and also causing a threat to lives of lot of people. This rule came to know about
the rule of absolute liability.
According to the supreme court the rule of strict liability is not so stringent that it can be used in
modern times . This is because scientific advancements have made modern industries even more
dangerous and hazardous. So finally the court laid down the rule of absolute liability in this case.
The rule of absolute liability states that if a person is keeping some hazardeous thing on his land and
its escapes and damages other person property and causes a danger to the other person life then that
person will be absolutely liable for his acts and no exception of strict liability will apply in this case.
Strict Liabilty in Criminal Law
Strict liability refers to a legal doctrine in which a party is held responsible for their actions or
products, and the plaintiff is not required to prove negligence or fault. A specific example of
strict liability would be if someone partakes in an ultrahazardous activity, such as keeping wild
animals, and another person is injured because of this.
In such a case, the defendant charged with the strict liability crime will likely be held liable for
their animals harming the plaintiff. Even if the defendant did take all necessary precautions and
followed safety requirements, the defendant would still likely be held responsible due to the
nature of strict liability crimes.
The criminal law system states that, generally, people are only punished when they have what is
known as “mens rea,” or a guilty mind. Meaning, if you intentionally break the law, you did so
with a guilty mind. Strict liability crimes do not require the mens rea element. Strict liability
crimes are considered to be criminal regardless of the person’s intentions.
Thus, even if the person engaging in the crime was not aware that their actions were criminal,
nor did they possess criminal intent, that person who committed strict liability crimes would still
likely be convicted.
Statutory Rape
“Any Sexual activity with a woman with or without her consent when she is below 18 years of
age constitutes rape. A woman under the age of 18 is considered incapable of giving consent for
any kind of sexual activity”.

3
MC Mehta V. Union of India & Ors, (2006) 3 SCC 399
The age of consent was raised from 16 to 18 by the Criminal Law (Amendment) Act of 2013.
The Supreme Court in Harpal Singh And Anr. vs State Of Himachal Pradesh 4  held that
‘even if the girl of 14 is a willing party and invited the accused to have sexual intercourse with
her, the accused would be liable for rape under this clause’.
In Mana Ramchandra Jadhav v. State of Maharashtra5 the victim left her mother’s house and
started living with the accused because her mother had declined the proposal of her marriage
with the accused on the ground that she was too young. While she was with the accused they had
sexual intercourse which was against her will. The act of intercourse with the prosecution will be
covered under this clause.;
Section 121: Waging, or Attempting To Wage War
The action of rising against the state or the authority has always been seen as a symbol of
treason of highest order. Any action, whether it is a preparation or abetment or attempt to wage
war and if it creates chaos against a government, has to be nipped in the bud despite the factor of
whether the offender had the intention to do so or not. The action speaks of this offense. This
offense has been included in this code because a person should be self-evaluative of his action
before doing it. Sometimes the action does harm to such a large extent that the injury is beyond
repair. It is immaterial if the intention was to do so or not. This offense is considered as a very
serious offense as it has been provided with the death penalty as the highest punishment for such
crime.
Section 124 A: Sedition
The law of sedition in India has been attributed as a controversial offence largely because of its
strict curtail on the constitutional provision of freedom of speech and expression guaranteed as a
fundamental right under Article 19 (1) (i) of the Constitution of India. This law is stated in
Section 124 Aand 153Aof the Indian Penal Code, 1860 and in other statutes. This offense is
based on the principle that state should have the power to punish the offenders who by their
actions jeopardize the equilibrium and safety of the state or lead to disruption of public order.
The very existence of state will be in danger is such actions are not curbed in their initial stages.
Thus, the doctrine of mens rea cannot be applied in such crimes. Mere actus reus is sufficient to
hold such offender liable for the offense of sedition.
Section 268: Public Nuisance
This is recognition of the civil principle which states that one can enjoy his or her own property
but cannot injure the right of another at the time of enjoyment of his right. This means one
should exercise his right visa- vis his duty of non- interference in other's right. It does not matter
if you intended to create such nuisance or not. You will be held responsible for such nuisance if
you have caused common injury, danger or annoyance to the public or people at large with
regard to their public rights. Intention here plays no role. You will be strictly liable for As we all
know, liability is an inherent feature of human society and rights are always followed by
liabilities, so without the existence of liability in our society, the coherence of our society will
also loose its force, and people would not care and value other's rights even. Now talking about
the concept of 'criminal law' in particular, the liability for one’s actions is based on two elements,
i.e. actus reus and mens rea. However the principle of strict liability is an exception to this.
Taking such principle into account, the author has made an elaborate discussion about it, by
4
AIR 1981 SC 361
5
1984 CriLJ 852 (Bom)
citing various instances of it in the Indian Penal Code, 1860 and, other statutory provisions.
Finally, towards the conclusion of this research paper, the importance of the principle of strict
liability and justification towards the concept that, 'the act alone is punishable' has been
highlighted.

Selling Alcohol to Minors

The rule of strict liability also applies in the case of selling alcohol to the minors and in this case
the defendant can’t take the defence that he was ignorant of the age of the buyer , similar to the
statutory rape it also falls in category of crime .

Traffic Offenses

An example of a traffic offense as a strict liability crime would be speeding. You will likely still
get a speeding ticket, regardless of whether you personally believed or were aware that you were
speeding.

Keeping Wild Animals:

As previously mentioned, keeping wild animals is an example of a strict liability crime because

of its nature as an ultrahazardous activity. Anyone keeping a wild animal are going to be held to
blame for any harm that that animal may cause another person;

Consumer Product Liability:

The manufacturer or seller of a defective product that causes injury or poses a danger to the
common consumer are held liable under strict liability. Any party liable for any a part of the
manufacturing process is also held liable, also as any seller. An example of this is able to be a
defective vehicle. If any a part of the vehicle is flawed, the assembling manufacturer, the
wholesaler, the dealer, and therefore the manufacturer of the defective piece may all be held
strictly responsible for any injuries caused.

Defences
Although available defenses will vary based on the specifics of each case, there are generally
very few defenses to strict liability crimes. There are four defenses that could be available in
regards to strict liability claims:
Contributory Negligence: This assumes that the victim contributed to their injuries in a way. they
need to have done so knowingly, and unreasonably subjected themselves to a risk of harm;
• Assumption of Risk: This defense could also be brought supported the consent doctrine. An
example of this might be if the plaintiff engaged in an ultrahazardous activity. In such a case, the
injured plaintiff might not be ready to recover in a very strict liability claim for injuries sustained
from the expected higher risks of the activity

• Abuse or Misuse: This legal defense utilized in defective products lawsuits. Abuse or misuse
suggests that the merchandise wasn't utilized in how it had been safely intended to be used, and
this use wasn't foreseeable by the manufacturer

• Comparative Fault: The comparative fault defense is predicated on the plaintiff’s own fault.
When applying the comparative fault defense, the injured plaintiff’s award is reduced by the
proportion they're deemed to be guilty for his or her own injuries.
Difference between strict liability in Tort Law and Criminal Law
The case of Rylends v Fletcher first laid down the rule of strict liability in tort, in which it was
held that a person may be liable for harm even though he was not negligent, or he had no
intention to cause harm or he may have done some positive efforts to avert the same. While
remedy in tort is damages, in criminal law the defendant is punished. Tort damages are
understood as a form of taxation on dangerous enterprise or imposed as a “cost of doing
business”. This view of sanction is compatible with the notion of liability without wrongdoing;
one need not do anything wrong to incur a tax or a business cost. But strict liability in criminals
cannot be imposed by analogous meaning. Being sentenced to jail or even being censured by
the court- cannot be thought of as a tax or doing business. For convenience, the phrase “strict
liability” used henceforth is to be understood in a criminal sense. 

Arguments in favour strict liability offences

It is supported protectionism or ‘social defence’ united of the first aims of the legal code is that
the protection of fundamental social interests. Certain areas like sale of food, medical drugs and
alcohol pose a risk to others, hence companies or someone which is getting ready to engage in an
exceedingly potentially dangerous activity, through strict liability, we cannot just make it to
require reasonable steps to forestall harm, but to try and do everything that it possibly can do.
Imposition of strict liability and not negligence, may courage the corporate to drag out every
step to forestall pollution. The offence is civil in nature and no proof of culpability is needed:
Here, the offence is just a civil offence, and fine is imposed irrespective of culpability, proven or
presumed, so as to stimulate more careful behaviour within the future. it'd follow that the matter
should altogether be taken out of the court and treated as an administrative matter, analogous to
the imposition of penalties for the late submission of tax returns.
Arguments against strict liability offences
Some scholars argue that there's no evidence that the strict liability crimes are simpler than
negligence-based offences in preventing harmful activities and it'll be unjust to convict
defendants who have acted in a completely reasonable way but unpredictably caused harm. To
convict such defendants will weaken the stigma that attaches to a criminal conviction and
endangers the excellence between criminal and civil law. this may even have the effect of
discouraging people from engaging in socially beneficial commercial activities. But after
considering both the arguments, arguments in favour of imposing strict liability in certain
offences is more stronger.

Position of strict liability offences in India

One of the explanations why strict liability doctrine isn't as developed in India because
it is within the UK is, in Britain, legal code isn't contained in single code promulgated by the
legislative body, but it's a conglomerate mass of rules based upon the traditional common law of
England modified and extended by the authoritative decisions of the judges within the long
passage of history, and vastly enlarged by the addition of statutory enactments made by
parliament from time to time. On the contrary penal laws in India are exhaustively codified
leaving
If we examine the Indian legal code, 1860 (hereinafter IPC) then, chapter IV (general exception)
mainly deals with matters of the existence of which negate the existence of such an intent. The
definition of offences generally contains respect to evil intent so on exclude all acts where such
an intent isn't present. Even where the definition is silent regarding intent, it's been held that on
general principles an evil intent must be imported into the definitions of all strictly criminal
offences.
The general doctrine of planning isn't of very great importance where, as in India, the law is
codified and offences are carefully defined so on include the planning within the definition itself.
The definitions within the Indian legal code together with the chapter of general exceptions are
perhaps sufficient to exclude all cases to which a malice aforethought can't be attributed. IPC
defies offences with care and precision and also the chapter generally exceptions is
extremely comprehensive.
If definitions of offences are analysed in IPC, they generally comprise the following principal
elements: 

1. A human being, 
2. An intention on the part of such a human being to cause a certain consequence
considered injurious to individuals or to society, which for the sake of brevity can be
called an evil intent,
3. The act willed, 
4. The resultant evil consequence. 
As to (b)-the evil intent- it is indicted generally by the use of such words as intentionally,
voluntarily, fraudulently, dishonestly, malignantly, wantonly, maliciously etc. 

But there are some cases where the words indicating intention don't seem to be utilized
in defining an offence. But these are either cases where the acts with their consequence are so
harmful to the state or society that it's been deemed just and expedient to punish them regardless
of any intention to cause those consequences, or cases where the acts themselves are of such a
personality that they raise a violent presumption that whoever willed the act must have
intended the implications. Section 121 (Waging, or attempting to wage war, or abetting waging
of war, against the govt. of India), 124A (Sedition), 359-363 (Kidnapping and Abduction)
are samples of former. While Section 232 (Counterfeiting Indian coin) is an example of later.
Analysis of IPC crimes suggest that these crimes are traditional common law offences
that accommodate offences against the person, property, state and public morals. 

Analysis of Indian Judgments 

In the case of State of Maharashtra v. M. H. George 6, it was held that “Merely because a statute
deals with a grave social evil is not sufficient to infer strict liability, it must also be seen that
whether imposition of strict liability would assist in the enforcement of the regulations. Unless
this is so, there is no reason in penalizing him and cannot be inferred that the legislature imposed
strict liability merely in order to find a luckless victim.” Finally, the court decided that when the
accused was held loaded with gold bars in his jacket beyond the limit allowed under the
provisions of FERA, 1947, the doctrine of mens rea cannot be applied here. The object and
purpose of the Act will be defeated if the accused is allowed to take the plea of ignorance of the
law and validate his action accordingly. Even the ignorance of the law is not allowed as a valid
defense. According to Sir J. Stephens, the doctrine of mens rea is misleading as the doctrine
originated when criminal law practically dealt with offenses which were not defined. In the
present scenario, however, every crime is defined precisely. The elements of the crime are
clearly marked in such provisions. So it can be easily carved out as to which offenses require
clear mentioning and proving of mens rea and which offenses have to be presumed to have mens
rea implied in it.
In J. K. Industries Ltd. vs. Chief Inspector of Factories and Boilers 7, the Supreme Court
observed, 
“The offences under the Act (the Factory Act 1948) are not a part of general penal law but arise
from the breach of a duty provided in a special beneficial social defence legislation, which
creates absolute or strict liability without proof of any mens rea. The offences are strict statutory
offences for which establishment of mens rea is not an essential ingredient. The omission or
commission of the statutory breach is itself the offence. Similar type of offences based on the
principle of strict liability, which means liability without fault or mens rea, exist[s] in many
statutes relating to economic crimes as well as in laws concerning the industry, food adulteration,
prevention of pollution etc…”
The finding of this case was approved in the recent decision of Hemant Madhusudan Nerurkar
vs. State of Jharkhand. 
In Union of India vs. M/s Ganesh the court recognized three exceptions of mens rea liability i.e.
all cases of public nuisance; acts not criminal in the real sense but prohibited in the public
interest; and civil rights enforced through criminal law. The very strong public interest clubbed
with a comparatively moderate penalty justifies extending criminal responsibility to cases where
there is no mens rea.
Indian Courts have held that mens rea is an integral part of the definition of crime, hence
whenever there is no specific mention of it, courts presume its requirement unless a statute
expressly or by necessary implication exclude mens rea. 
Indian courts have justified the non-requirement of mens rea on the grounds that many of the
Acts impose only payment of fines as punishment or even if imprisonment is provided, very
rarely do courts award it and conviction under public welfare offences does not attach to itself
the same kind of social stigma and damage to reputation that conviction under IPC would
attract. 
General trend is seen that modern legislative bodies often choose not to create “true” crimes,
especially in the areas of traffic, liquor, purity of food, hunting, and narcotic offences, but rather

6
State of Maharashtra v. M. H. George, AIR 1965 SC 722
7
J. K. Industries Ltd. vs. Chief Inspector of Factories and Boilers, 1996 SLP (C) No. 12498
to enact statutes that do not require any proof of mens rea, as it is legislature’s interest in
promoting public safety that justifies strict regulation of acts that threaten that public safety.
India also seems to follow that path. Professor Jerome Hall has rightly preferred to call strict
liability offences as offences relating to ‘economic law’ or ‘administrative regulations’, instead
of penal offences.
Conclusion
It has always been prerogative of the legislature to make laws, which includes the power to
define what constitutes a crime and what are the elements of a particular crime. In defining
crime, the legislature is competent to legislate in respect of a particular crime to omit the
essential requirement of mens rea. But many of the enacted legislation neither mention that
the mens rea is not an essential element of the offence concerned nor does it state that mens
rea is an essential ingredient of the crime. This silence makes the role of judicial interpretation
more crucial and this has led to the creation of judge-made law resulting in confusion and
contradiction when offences are interpreted by various High Court in India differently. The fact
that the defendant can be convicted without proof of his mens rea does not infringe the right to a
fair trial. As strict liability has the potential to create injustice and operate harshly, it is rightly
said that the doctrine of strict liability is a dangerous instrumentality that should be handled with
utmost care. 
References
 https://www.researchgate.net/publication/24015686_A_Positive_Theory
_of_Strict_Liability
 https://www.jstor.org/stable/1226524?seq=1
 https://core.ac.uk/download/pdf/234146692.pdf
 https://blog.ipleaders.in/statutory-rape-laws-india/#:~:text=Statutory
%20Rape%20is%20defined%20in,be%20constituting%20a
%20Statutory%20Rape%E2%80%9D.
 https://mobile.manupatra.in/
 https://indiankanoon.org/doc/1564263/
 https://www.casemine.com/judgement/in/5728ebd3e56109289287f6f3
 https://www.lawctopus.com/academike/section-375-analysis-of-
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4646-83F6-9D8E84F5AA3C.pdf