Name- tushar kant swain

Roll no.- 2182102

Branch- BBA LLB (b)
Subject- law of crimes
Topic- mens rea in statutory offenses

Abstract
Understanding each and every reason behind each and every behaviour is crucial in the legal
profession. A sound decision in a case can only be made after that. The judge will most often,
but not always, reach the right legal judgement if he does not take into account all relevant
factors and scenarios. Mens rea, or the guilty intention, is one of the most crucial factors to
take into account when analyzing any crime. Nearly since criminal law has been understood
to exist, this component of crime (mens rea) has been there. It was mentioned in the
definitions of crimes in The Code of Hammurabi (1700 B.C. ), where words like "intent" and
"knowing" were used. But as time has gone on, there have been complications with the
application of mens rea, and the courts have been working nonstop to find solutions. Whether
the offender has mens rea or not is typically the problem that arises in situations. But
occasionally, the issue is whether it is necessary or not. In the case of statutory offences, this
occurs. They may explicitly or subtly reject the presumption of mens rea. The current
research study conducts a critical analysis of this circumstance and takes into account the
current viewpoints and conclusions.

What are statutory offences?

An offence is essentially breaking the law. The term "offence" in legalese often refers to
criminal conduct. So, in terms of penal law, an offence is wrong. Any conduct or omission
that is punished under any currently in force statute, including any action for which a
complaint may be made under section 20 of the Cattle-trespass Act, 1871(1 of 1871) is
considered an "offence" according to the Code of Criminal Procedure, 1973. This serves as a
standard for Code-related offences. However, there are also other categories of offences;
those that are defined by specific laws, such as those pertaining to taxation, national security,
etc. Statutory offences are the term used frequently to describe these. There are numerous
classifications for offences. However, the proper classification of crimes for our study would
be into crimes malum in se and crimes malum prohibitum. Malum in se offences are those
that are essentially bad or wrong, such as murder, rape, etc. They are acknowledged as wrong
by society at large. Over time and as a result of judicial rulings, they have become offences.
Because they were created through precedent, these are also known as Common Law
offences. However, crimes that are malum prohibitum are actions that are bad simply because
they are against the law. Road Traffic Rules, for instance, may not be fundamentally
unlawful, but because they are the rules that must be obeyed when driving, breaking them is
punishable. Even if driving on the right side of the road is against the law, it is not necessarily
wrong to do so. These offences fall under the category of "Statutory Offenses." They are
those who are governed by laws that must be strictly interpreted.
Statutory offences are necessary because, in addition to the crimes listed in the Indian Penal
Code, 1860, another highly significant category of crime known as "White Collar Crimes"
also poses a serious threat to society. In the last 20 years, a lot of frauds have been exposed.
Harshad Mehta and the 2G fraud are only two examples of those who have harmed society. In
reality, Lal Bahadur Shastri, India's then-Home Minister, established the Santhanam
Committee on Prevention of Corruption in 1962, which advocated adding a new Chapter to
the Indian Penal Code, 1860 to include some socio-economic offences. But regrettably,
nothing like that happened.

The offences are as follows:-

1. Crimes are intended to hinder or prohibit the nation's economic growth and jeopardise its
financial stability.
2. The unlawful avoidance and evasion of taxes.
3. Abuse of power by public employees while awarding contracts, selling off government
property, issuing licences and permits, and dealing with related issues.
4. Deliveries of commodities that do not meet agreed-upon criteria made in fulfilment of
contracts with public bodies by consumers and industrial and commercial enterprises.
5. Hoarding, illegal marketing, and profiteering.
6. Contamination of food and medication.
7. Theft and improper use of resources provided by the government.
These offences are crucial to society and serve to safeguard the general welfare. As a result,
the crimes that fall under this category are known as "Public Welfare Offenses." Therefore, if
a law is passed to recognize them as crimes, they would then be considered Statutory
Offenses and would be punishable upon commission.

Mens Rea
The well-known Latin adage above summarises the relationship between mens rea and
criminal behaviour in general. Actus reus is Latin for an unlawful act. Mens rea is Latin for
having bad intentions. The adage states that unless the mind is also guilty, an act does not by
itself constitute guilt. It takes more than just committing a crime or breaking the law to be
considered a crime. These typically call for additional components of wrongdoing or another
fault. Mens Rea is a legal phrase. It denotes a mental illness whose absence, on any given
occasion, would be detrimental to the situation of crime. It is a necessary component of
criminal responsibility. Only when an act that is legally considered to be an offence is carried
out freely is it considered to have been performed as a criminal offence. So, only when done
with a guilty intent can an act turn into a crime.
A criminal's mental health should be established before he is held accountable (mens rea).
For instance, if someone strikes you, it is not illegal to harm him in self-defence; nonetheless,
it is illegal to harm him with the goal of exact revenge. This is how the existence of a guilty
mind alters the offence’s essence. However, the prerequisite of a guilty mind differs from one
crime to another. For some crimes, a purpose that might meet the criteria for mens rea may
not be for others. The purpose to kill someone constitutes murder; the intention to steal
constitutes theft; the intention to rape constitutes engaging in sexual activity with a woman
against her will, etc. Therefore, even while mens rea is a need for all criminal acts, its nature
and severity might differ from one crime to the next. However, there are situations where
mens rea is not necessary for an act to be unlawful (statutory offence). In the parts that
follow, we'll talk about these circumstances in this study.

Assumption requiring mens rea

Certain assumptions are taken into consideration by the court when interpreting statutes in
statutory interpretation. The assumption that applies, in this case, is that mens rea must
generally be present for criminal conduct to be unlawful. Nearly all crimes that are
committed without the aid of law require the perpetrator to be in some sort of guilty frame of
mind. Unless a contrary intention is expressed or implied, a statute that defines an offence is
generally understood to be implicitly requiring that the component of mens rea be
incorporated into the description of the crime (offence) so described, regardless of how
extensive and ultimate the language of the statute may be.
Today's laws and orders have multiplied the types of offences to such a degree that it is
challenging for the majority of law-abiding citizens to remain law-abiding at all times. Out of
all the laws, one or more may occasionally be broken accidentally and without malice. It
seems more crucial than ever in these circumstances to follow this rule. There is, however,
more to it. In the past, it appeared as well that the significance of this assumption of mens rea
was waning. If Roscoe Pound's concept of statutory offences is taken into account, this can be
especially true. According to him, "such statutes are not intended to punish the evil will but to
put pressure on the careless and inefficient to do their full responsibility in the sake of public
health, safety, or morals." There is even another perspective on things. Today's world is
dominated by machines. Industrialization is pervasive and is growing rapidly. There are
powerful devices around. These devices are frequently hazardous and might endanger the
worker's health. The Bhopal Gas Tragedy demonstrated to the world that industries first
sacrifice safety standards in order to reduce costs. When it comes to hazardous industries,
those living in and around that area may also be at risk in addition to the industrial workers,
like in the case of Bhopal. A significant gas leak of MIC gas from the Union Carbide factory
in Bhopal occurred in the aforementioned tragedy in 1984. Numerous people are still
suffering as a result of the thousands of deaths. It is therefore in the interests of the greater
good that there are laws that establish standards and regulate the operation of the industries,
prevent food adulteration, bribery, etc., and that these laws are strictly applicable, i.e., that
they are strictly interpreted without requiring mens rea in the commission of the offences they
create. The whole of society would profit from this.
However, because the argument against the assumption of mens rea cannot be made in every
circumstance, after the Hobbs Case, as the years passed, the courts once more appeared to be
in favour of its usage. However, Lord Evershed later provided a critical analysis of the
problem in a number of his rulings, the most significant of which being in the case of
Reynolds v. G.H. Austin & Sons Ltd. In this instance, Lord Evershed stated:

“Where the subject matter of the statute is the regulation for the public welfare of a particular
activity – statutes regulating the sale of food and drink are to be found among the earliest
examples – it can be and frequently has been inferred that the legislature intended that such
activities should be carried out under conditions of strict liability. The presumption is that the
statute or statutory instrument can be effectively enforced only if those in charge of the
relevant activities are made responsible for seeing that they are complied with. When such a
presumption is to be inferred, it displaces the ordinary presumption of mens rea. But, it is not
enough merely to label the statute as one dealing with a grave social evil and from that to
infer that strict liability was intended. It is pertinent also to inquire whether putting the
defendant under strict liability will assist in the enforcement of the regulations. That means
that there must be something he can do, directly or indirectly, which will promote the
observance of the regulations. Unless this is so, there is no reason in penalizing him, and it
cannot be inferred that the legislature imposed strict liability merely in order to find a
luckless victim.”1

According to Lord Evershed, there are two requirements that need to be fulfilled in order to
disprove the presumption of mens rea: first, strict liability must be necessary in order to carry
out the legislative intent; and second, the person accused of violating the law must have had
some chance to enhance their observance. The prejudice against mens rea in statutory
offences would therefore constitute an exception to the rule if the assumption as to mens rea
is a general rule. In such a situation, the mens rea presumption in criminal statute offences
would constitute an exception to that exemption.

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Assumption not used in statutory offences
In this instance, a statutory offence has been committed, yet the matter is not decided using
the presumption of mens rea. Such instances have been prevalent in both Indian and English
courts. R. v. St. Margarets Trust Ltd. is one of the first examples. Article 1 of the Hire-
Purchase and Credit Sale Agreements (Control) Order, 1956, had been broken in this case.
According to the article, a hire-purchase agreement must meet all of the requirements listed
in Schedule 2 of the Order before any products covered by the Order may be sold. This
means that 50% of the cash price must be paid before the agreement is signed. However,
notwithstanding the fact that the infringement was committed innocently, it was deemed to be
unlawful. The injunction stated that smoking was "expressly and unqualifiedly prohibited."
Its goal was to protect the currency from the threat of inflation, which, if left unchecked,
would devastate the nation. J. Donovan claimed that:
“The present generation has witnessed the collapse of the currency in other countries and the
consequent chaos, misery and widespread ruin. It would not be at all surprising if Parliament,
determined to prevent similar calamities here, enacted measures which it intended to be
absolute prohibitions of acts which might increase the risk of however small a degree. There
would be a little point in enacting that no one should breach the defences against a flood, and
at the same time excusing anyone who did it innocently.”2
Another significant case in this regard is Lockyer v. Gibb. According to the Divisional
Court's ruling in this case, it is an absolute crime to be "in possession of a narcotic" in
violation of Regulation 9 of the Dangerous Drugs (No. 2) Regulations, 1964. Although it
must be demonstrated that the accused knew he had the item, which turned out to be a drug, it
is not necessary to demonstrate that he understood what it was. According to Lord Parker,
C.J., the regulation was a measure for the general welfare. There was every reason to see a
provision like this as one establishing unlimited culpability if one only considered the harm
intended.
In India as well, there have been significant landmark cases on topic. The case of State of
Maharashtra v. M.H. George serves as a good illustration. On November 27, 1962, the
respondent in this instance departed from Zurich and arrived at Santa Cruz Airport. He didn't
exit the aircraft, and a search revealed that he had been carrying gold slabs. Up to November
24th, it was generally permitted for someone to send or carry gold into India while it was in
transit. But on November 24th, a requirement was put in place. The respondent could not
have been aware of the condition when he boarded the plane in Zurich. The prosecution was
brought against him for violating Section 8(1) of the Foreign Exchange Regulation Act of
1947, and the issue at hand was whether or not the respondent-mens accused's rea could be
proven. The consensus was that:
“On the question whether mens rea – in the sense of actual knowledge that the act done by
the accused was contrary to the law – is requisite in respect of a contravention of Section 8(1)
starting with an initial presumption in favour of the need for mens rea, we have to ascertain
whether the presumption is overborne by the language of the enactment, read in the light of
the objects and purposes of the Act, and particularly whether the enforcement of the law and
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the attainment of its purpose would not be rendered futile in the event of such an ingredient
being considered necessary. Where the statute does not contain the word ‘knowingly’, the
first thing to do is to examine the statute to see whether the ordinary presumption that mens
rea is required applies or not. When one turns to Section 8(1) in the present context, one
reaches the conclusion that there is no scope for the invocation of the rule of mens rea. It lays
an absolute embargo upon persons who, without satisfying the condition bring or send into
India any Gold, the absoluteness being emphasized by Section 24(1) of the Act, which throws
on the accused the burden of proving that he had the requisite permission. In our opinion, the
very object and purpose of the Act and its effectiveness as an instrument for the prevention of
smuggling would be entirely frustrated if a condition were to be read into Section 8(1) of the
Act qualifying the plain words of the enactment, that the accused should be proved to have
knowledge that he was contravening the law before he could be held to have contravened the
provision.”3
These were some significant instances when the presumption requiring mens rea was
disregarded. Without the accused having mens rea, statutory offences were punished in these
situations. Due to their connections to the general good of society and the interest of the
country, this is usually the case with such offences. However, in some other circumstances,
the element of mens rea is somehow included in the definition of statutory offences,
benefiting the accused.

Assumption used in statutory offences

Despite the fact that it has been established as a norm that the presumption of mens rea would
not be used in instances of Statutory Offenses, there have been instances where it has. The
Sherras v. De Rutzen case is among the best and earliest instances of this. According to
Section 16(2) of the Licensing Act of 1872, the defendant in this instance was found guilty of
supplying alcohol to a police officer while the officer was performing his or her official
duties. Police officers typically wore armlets while on duty, but this constable had taken it
off. Therefore, the appellant thought he was off-duty. Regarding the issue of whether
knowledge was necessary for the offence, the statute was silent. After being found guilty, the
appellant appealed, claiming that the offence required knowledge that the officer was on
duty. The court used the presumption needing mens rea in this Statutory Offence, which
resulted in the appeal being accepted and his conviction being overturned. J. Wright believed
that:
“There is a presumption that mens rea, an evil intention, or knowledge of the wrongfulness of
the act, is an essential ingredient in every offence; but that presumption is liable to be
displaced either by the words of the statute creating the offence or by the subject-matter with
which it deals. It is plain that if guilty knowledge is not necessary, no care on the part of the
publican could save him from a conviction under Section 16(2), since it would be as easy for
the constable to deny that he was on duty when asked, or to produce forged permission from
his superior officer, as to remove his armlet before entering the public house. I am, therefore,
of the opinion that this conviction ought to be quashed.”4
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Following that, Lim Chin Aik v. R. became a landmark case. In this case, Lord Evershed
ruled that the accused could not be found responsible for entering and residing in Singapore
in violation of a prohibition imposed by the Singapore Immigration Ordinance of 1959 since
he was unaware of the ban. Absolute accountability for a forbidden person would not have
insured that the order was followed because he could not have cooperated with it if he was
unaware of it, and the Ordinance did not provide any practical ways to determine whether or
not he had become a prohibited person.
Therefore, it is clear that even if there is a prohibition against utilising the presumption in
statutory offences, it is nonetheless employed when the courts deem it appropriate or
necessary to do so in order to uphold the rule of law.
In conclusion, it can be claimed that the rules for using the presumption of mens rea in court
have been evolving for a very long period. In fact, courts have developed their own criteria
for how the presumption should be applied in typical circumstances, statutory offences, and
even when it shouldn't be applied in statutory offences. However, disagreements do
occasionally arise regarding whether to put it into practise or not. In such a circumstance, it
would be very reasonable to reference a decision by the Supreme Court in Nathulal v. State
of Madhya Pradesh concerning the implied inclusion of mens rea in Section 7 of the Essential
Commodities Act, 1955. The judge had declared that:
“Mens rea is an essential ingredient of a criminal offence unless the statute expressly or by
necessary implication excludes it. 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 ingredients 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.”5

5
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