Introductory Chapter of the Penal Code

 

Class Minutes for Introductory Chapter of the Penal Code

 

Class Date: 5/6/22

Group A

 

Learning Objective- To learn the basics of criminal law

 

A Brief Origin of Criminal Law :

During the ancient period, there was no criminal law to maintain order against crime. During that time, a victim either took revenge or submitted himself to the attacker. The retributive theory of punishment was prevalent in the ancient period. However, as time advanced, people started to receive money as compensation. This practice laid the foundation of modern criminal law. 

 

In India, the origin of criminal law can be traced back to the ancient Hindu period. The Manusmriti and other sources like Veda, Smritis, and Srutis contained provisions regarding criminal law. Manu, the author of the Manusmriti, recognized various types of crimes, including assault, cheating, rape, adultery, theft, robbery, criminal breach of trust, etc.

 

During the Muslim period, the rules and regulations of criminal law were mainly based on the Islamic Shariah. Mainly the Kazis administered the Mohammedan criminal law in the courts of the country. Quran, the main source of Islamic Shariah, had jurisdiction over both civil and criminal matters.

 

And during the British period, the colonial rulers enacted numerous laws to tackle crimes and civil wrongs. Later, the criminal laws were consolidated and codified under two major laws. The first is substantive law, the Penal Code, 1860, and the second is procedural law, the Code of Criminal Procedure, 1898. 

 

 

 

The objective of the criminal administration of justice

The main objective of the criminal administration of justice is to punish the wrongdoer. In the light of this objective, the question may arise- “what is the end or purpose of punishment?” There were two theories regarding the end of criminal justice. The first one was to protect the victim and bring order and welfare to the society and the State. The second end was retribution. This view supported that the offender must suffer for his wrong.

 

Objects of the civil administration of justice

The object of the civil administration of justice is quite different than the criminal administration of justice. It provides two types of sanctions. They are- primary sanction (ensuring the rights) and secondary sanction (providing damages).

 

There were two stages of criminal justice-

1st Stage- Self-Help

2nd Stage- The King’s Judgement 

Self-help generally refers to a type of justice where one has to undertake the means of justice in his own hands. He may take revenge on his own or take help from his relatives.

The King’s Judgement meant where the King took the matters to resolve by himself or by his counsel. Normally, the royal disputes were resolved by the King.

 

Negative Rights- This type of right or right in rem refers to a right that protects someone from others doing something to him. For example, the right not to get slapped is a negative right. 

 

Liability is of two types- Civil and criminal.

Civil Liability:

Civil liability is the liability one has to take for a civil wrong. It can be either in the form of damages or following court-enforcements. 

 

Criminal Liability:

Criminal liability simply refers to the responsibility that one has to take for doing something illegal to someone. 

 

There are three aspects to criminal liability- 

i) condition

ii) incidence

iii) measure of criminal liability 

 

Actus non facit reum, nisi mens sit rea: 

One should not be held liable merely by observing the act. The mental condition or mens rea should also be taken into consideration. Otherwise, only judging by the physical act may cause providing punishment for an innocent person. It breaches one of the core objectives of justice: “a hundred criminals may get away with a crime, but an innocent person should not be punished.”

 

Municipal Law- The law of the State or Country which covers various issues like crimes, education policies, property laws, taxes, police power, etc., is municipal law.

 

International Law- The law that deals with matters between different countries. Sometimes civil laws also have some international law elements. For example, for passing environmental law, the parliament has to follow some standards of international laws.

 

Class Date:07/06/2022

Group: A

 

CRIME

There’s no specific definition of crime in the Penal Code. All acts tending to prejudice the community are not ‘crimes’ unless they are punishable under the law. Society becomes affected by crime. According to Osborn, crime is an act or default which tends to the prejudice of the community and forbidden law on pain of punishment inflicted at the suit of the State.

 

‘Actus rea’ and ‘mens rea’ are two important parts to constitute a crime. Actus rea means a guilty act, and mens rea means a guilty mind. Actus rea is obvious, and mens rea is taken into consideration to prove a crime. There’s no parameter to measure mens rea. 

“MENS REA”

The meaning of Latin term ‘Mens rea’ means guilty mind. Mens rea is a very important aspect of criminal law. When a person commits a crime, that doesn’t always mean that he is guilty. The commission of that crime could be unintentional, involuntary, or accidental. 

Mens rea is the second of the two most significant elements, the first being actus rea. This usually looks into the real intention of the wrongdoer, whether he did it actually out of his knowledge or out of fault. The prosecution ought to always prove that the wrongdoer has truly intention to commit the crime. Otherwise, he can’t be called a criminal.

There’s Latin maxim that goes “Actus non facit reum, nisi mens sit rea.” The meaning of this term is the act does not constitute guilt unless done with a guilty intent. To constitute criminal liability, it is to be proven that a person has done the act intentionally or at least he had some further wrongful purpose in mind. The penal liability shall fall upon him depending on the state of his mind. If he intentionally chose the wrong, he will be punished with severe punishment. On the contrary, if he had done the act without wrongful intent and later realised his fault, then he should be punished with less penal liability.

 

Three important elements of mens rea are-

(i) intention (ii) knowledge (iii) motive

 

(i) intention

Intention and good faith are two contradictory words. But intention and knowledge are interrelated. Knowledge and desire both are important to constitute intention.

 

Act may be classified into intentional, unintentional, partly intentional, and partly unintentional. 

Intentional acts derive from foresightedness and desire. Besides, intention excludes negligence. 

 

(ii) knowledge

A crime must be distinctly proved, or someone has to have the knowledge to get punished. Knowledge is immaterial, where an act is forbidden by law. Some provisions of the Penal Code 1860 don’t require having the knowledge to punish someone. 

 

(iii) motive

One should not confuse motive with intention. Motive and intention are different from each other. Actually, the motive is precedent to intention. The motive of an act is not a sufficient test to determine its criminal character. The motive may serve as a clue to the intention. The court shall try to find the motive if the act is intentional. Two questions arise before a wrongful act. The first one is whether the act was done intentionally or accidentally. And the second question is, if the act is done with intention, what was the motive.  

 

COMMISSION OF A CRIME

There are four stages of the commission of a crime-

(i) intention (ii) preparation (iii) attempt (iv) completion 

The first two are commonly innocent. But the latter two are offensive and punishable. Mere preparation for a crime is not considered a crime. But in the Bangladeshi Penal Code, the following three preparations can be treated as a crime- 

a) preparation of war against Bangladesh,

b) preparation to commit dacoity,

c) trying to destroy relations with countries that have peaceful relations with Bangladesh.

“Res ipsa loquitur” means the thing speaks for itself. A criminal attempt bears criminal intent upon its face. According to professor Salmond, an attempt is an act of such a nature that it is itself evidence of the criminal intent with which it is done. 

 

KNOWLEDGE AND INTENTION

Knowledge is awareness/foresightedness coupled with desire. In intention, the consequence is desired, but in knowledge, the consequence is not desired. 

Salmond defined intention as “the purpose or design with which an act is done. It is the foreknowledge of the act, coupled with the desire of it, such foreknowledge and desire being the cause of the act.”

Intention has two necessary constituents, namely knowledge, and desire. Intention may be classified into 4 parts. Such as: i) intentional ii) unintentional iii) partly intentional iv) partly unintentional. Intentional is usually the mixture of desire and foresightedness toward certain consequences.

Intention can be divided into two further parts; immediate and ulterior intent. A thief when tries to steal, his immediate intention is to steal from a person, but the ulterior intent may be to purchase food for his child. Ulterior intent, which is also known as the motive, may be good, when immediate intent may be bad. Anyway, the act will always be wrongful.

Knowledge is another essential ingredient in committing a crime. It should be distinctly proved. There may be consequences if the wrongdoer doesn’t have sufficient knowledge. But the question of knowledge becomes immaterial when the act is forbidden by law. Negligence can’t be an excuse in these cases. There are provisions in the Penal Code where certain acts are punishable, whether there is a question of knowledge present or not.

 

MALICE

Malice refers to ill will or spite. It includes both forms of intent, i.e., immediate and ulterior intent. In simple words, any intent which is wrongful under the law is malice. And it is a wrongful act done towards another person without any kind of justification or legal excuse.

Malicious prosecution is the prosecution that is inspired by some motive disappointed by the law and does not normally mean an intentional prosecution.

 

NEGLIGENCE 

Negligence simply means culpable carelessness. 

According to Willes, J., “the absence of such care as it was the duty of the defendant to use.”

Perfect legal rights are related to perfect duties. If these types of rights are infringed, the laws give recognition and also enforce the right. 

Section 304A of the Penal Code refers to causing death by negligence. The section states-

“Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to five years, or with fines, or with both.”

Case Laws

26 DLR 182 - Ahmed Ali Vs. State- Non-consideration of important circumstances by the trial Court vitiates the judgment.

9 DLR 207- Abdur Rashid Mia Vs. State - Driving a car recklessly until it comes so close to a pedestrian that it is impossible to save a collision C but be characterized as rash and negligent driving. Mere negligence on the p of a pedestrian cannot excuse negligence on the part of a driver of such a fast and dangerous vehicle.

 

MISTAKE OF LAW

“ignorantia juris non excusat”- ignorance of the law is not an excuse. Everyone is presumed to know the law of the land. Not having knowledge is not enough to prove innocence here. 

Generally, a person is held liable for his/her negligence, which results from the violation of the rights of others. But there are certain exceptions to this general principle of liability where a person is held liable for his/her act even though he/she didn’t do it intentionally or negligently. Mistake of law is such an exception.

Mistake of law means a mistake involving the misunderstanding or incorrect application of the law with regard to an act or transaction. It is a defense that the criminal defendant misunderstood or was ignorant of the law as it existed at the time. If a person commits any wrong under mistake of law, the law will not hear him or say that just because of not knowing the law, s/he has done the wrong.

Specifically, mistake of law can be used as a defense in the following circumstances:

a) When the law has not been published;

b) When the defendant relied upon a law or statute that was later overturned or deemed unconstitutional;

c) When the defendant relied upon a judicial decision that was later overruled; or

d) When the defendant relied upon an interpretation by an applicable official.

In addition, the defendant’s reliance on any of these sources must be reasonable—much like mistake of fact. Thus, a defendant cannot claim that he was relying on a case from 200 years ago when it is apparent that there have been subsequent developments in the law.

 

Case Law

Mohammad Ali vs. Sri Ram Swarup [AIR 1965 All 161, 1965 CriLJ 413]

Ram Swarup was a head constable and had arrested Mohammad Ali. Mohammad filed a case against Swarup, stating that he had falsely arrested him. It was seen that Swarup had arrested him without particular reasons and had kept him in unlawful detention. It was stated that ignorance of the law, even in good faith, is not justified.

 

MISTAKE OF FACT

“ignorantia facit excusat”- ignorance of fact is a good excuse. One can use a mistake of fact as a plea or an excuse. As per the general rule, a mistake of fact is a complete defense to criminal liability. 

A mistake of fact is when a reasonable person makes a mistake on an important matter leading him or her to commit a crime or act in a prejudicial way. According to criminal law, a person can make a sincere mistake of fact, leading him to the commission of a criminal offense.

According to Cornell law school’s legal information institute, Mistake of fact is any mistaken belief other than a mistake of law.  Examples include erroneous beliefs about the meaning of some term or about the identity of some person.

Mistake of fact can be a huge factor in eliminating criminal culpability or civil liability. A mistake of fact is of little consequence unless it is born of unconscious ignorance or forgetfulness. No one can escape civil or criminal liability for intentional mistakes.

Mistake of fact can take place in many situations, such as

·       Mistake of fact criminal law

·       Mistake of fact contract law

 

INEVITABLE ACCIDENT

In criminal law, Accidents can be of two types-

i) Culpable

ii) Inevitable

A culpable accident is a type of accident where the accident happens due to negligence. On the other hand, in case of inevitable accidents, negligence shall be completely absent. Any occurrence that is not foreseeable and that can not be prevented by the exercise of reasonable care is an inevitable accident. In case of an inevitable accident, nobody can do anything.

 

It acts as a good defense. There needs to be the existence of two principles that need to be satisfied under the defense of Inevitable accident, and they are:

1.    The damage was unintentional.

2.    The circumstance surrounding the damage could not have been avoided by the person despite all care, caution as well as a skill that could have been employed by the person who committed the wrong.

Assigned Group- A
1810616101, 102, 105, 110, 135, 167, 1711016113, 1710916169 = 8 students