Actus Reus (Guilty Act)

To constitute a crime under the Bharatiya Nyaya Sanhita (BNS), generally, two main elements must be present: Actus Reus (the guilty act) and Mens Rea (the guilty mind). These are the foundational principles of criminal liability.

Definition and Nature:

Actus Reus refers to the external element of a crime. It is the physical act or omission, or the state of affairs, that is prohibited by criminal law. It is the conduct that causes or results in a prohibited consequence or state of affairs.

Example: In the crime of theft, the Actus Reus is the act of moving movable property out of the possession of any person without that person's consent. In the crime of murder, the Actus Reus is causing the death of a human being.

Voluntary Act

For an act to constitute the Actus Reus of a crime, it must generally be a voluntary act of the accused. A voluntary act is one performed consciously and willfully. If an act is involuntary (e.g., a spasm, a reflex, or an act performed while unconscious or under duress to the extent of negating will), it may not constitute the Actus Reus, and thus no criminal liability arises.

Involuntary acts do not reflect the will or choice of the actor, which is a basis for attributing blame in criminal law.

Omissions and Duty to Act

Actus Reus can also consist of an omission – a failure to act. However, an omission constitutes Actus Reus only when there is a legal duty to act. Not every failure to act is a crime. The duty to act can arise from:

• Statute: A law explicitly imposes a duty to act (e.g., duty to file income tax returns).

• Special Relationship: Certain relationships create a duty to act (e.g., parent's duty to care for their child, husband's duty to care for his wife).

• Contract: A contractual obligation to perform certain actions (e.g., a lifeguard's duty to rescue swimmers).

• Assumption of Care: Voluntarily assuming the care of someone may create a duty to continue that care.

• Creation of Peril: If a person's actions create a dangerous situation, they may have a duty to take steps to mitigate the danger.

If a person fails to perform a legal duty, and this failure results in a prohibited consequence, their omission constitutes the Actus Reus.

The BNS, like the IPC, criminalizes both acts and omissions where a legal duty exists.

Mens Rea (Guilty Intention/Mind)

Mens Rea refers to the mental element required for most crimes. It signifies a blameworthy state of mind on the part of the accused at the time the Actus Reus is committed. The principle is 'actus non facit reum nisi mens sit rea' – an act does not make a person guilty unless the mind is also guilty.

Concept of Intention, Knowledge, Recklessness, Negligence

Mens Rea is not a single, uniform concept. It encompasses different levels of culpability. The specific Mens Rea required for a crime is usually defined in the section creating the offence. Key concepts of Mens Rea include:

• Intention: The highest level of culpability. The accused deliberately intended to cause the prohibited result or foresaw the result as virtually certain to occur and proceeded with the act. Intention can be direct (desiring the result) or oblique (foreseeing certainty of the result).

• Knowledge: The accused was aware that a certain fact or consequence was likely to occur, although they may not have directly intended it. Knowledge is a strong form of awareness.

• Recklessness: The accused foresaw a risk of a harmful consequence resulting from their conduct but unreasonably took that risk. It involves a conscious disregard of a foreseeable risk.

• Negligence: The least culpable form of Mens Rea (in criminal law). It involves a failure to exercise the standard of care that a reasonable person would have exercised in the circumstances, where that failure creates a foreseeable risk of harm. The focus is on the deviation from the standard of reasonable conduct, not necessarily a subjective awareness of the risk by the accused.

The BNS uses terms like 'intentionally', 'knowingly', 'voluntarily', 'rashly', 'negligently' to denote the required mental state for different offences.

Specific Intent vs. General Intent

Some crimes require a specific intent, while others require only a general intent.

• Specific Intent: Crimes that require proof that the accused intended to achieve a particular result or effect. The intent goes beyond the mere act itself. Example: In the crime of 'theft', the Actus Reus is moving property. The Mens Rea is the intention to take that property dishonestly (specific intent to act dishonestly). Other examples might include burglary (intent to commit a felony inside), or assault with intent to cause grievous hurt.

• General Intent: Crimes where the Mens Rea is simply the intention to perform the prohibited act itself, without requiring proof of an intention to cause a further result. The intention is to commit the physical act. Example: Battery (intention to apply unlawful force). The prosecution only needs to prove the intention to do the act constituting battery, not an intention to cause a specific type of injury.

The distinction is important because certain defences (like voluntary intoxication) may negate specific intent but not general intent.

While Mens Rea is a general requirement, there are exceptions in cases of strict liability, where a person can be held criminally liable for the Actus Reus alone, regardless of their mental state (e.g., certain regulatory offences, offences related to public health or safety). However, the BNS, like the IPC, presumes Mens Rea unless the statute explicitly excludes it.

Concurrence of Actus Reus and Mens Rea

For criminal liability to arise, the Actus Reus and Mens Rea must generally coincide. The blameworthy mental state must be present at the time the prohibited act or omission occurs.

The Principle:

The principle of concurrence requires that the Actus Reus and Mens Rea must coexist. The accused must have the required guilty mind at the moment they perform the guilty act or omission that causes the criminal consequence.

Example: If a person intends to kill someone (Mens Rea) but by mistake performs an act (Actus Reus) that does not cause death, and later performs a different act that does cause death but without the intention to kill at that later moment, the elements may not concur, and liability for homicide might not arise (though liability for other offences might).

Continuing Act Doctrine:

In some complex situations, courts may apply the 'continuing act' doctrine to find concurrence. If the Actus Reus is considered a series of continuous actions, and the Mens Rea is formed at some point during that series, concurrence may be established.

Example: A person assaults someone without intending serious harm, but later, while disposing of the apparently dead body, the person develops the intention to kill and performs actions that actually cause death. Courts might view the entire sequence as a continuing act for the purpose of finding concurrence for murder.

The requirement of concurrence ensures that a person is held criminally liable only when their blameworthy intention or knowledge is directly linked to the harmful conduct that constitutes the crime. This reinforces the principle of fault-based liability.

Mistake of Fact

The Bharatiya Nyaya Sanhita, like the IPC, provides for several exceptions or defences that, if applicable, may negate criminal liability. These exceptions recognise circumstances where, despite the presence of elements of Actus Reus, the accused may not be held criminally responsible because of the absence of Mens Rea or other justifying factors.

Provision:

Mistake of fact is a recognised defence. Section 15 of the BNS states that "Nothing is an offence which is done by a person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be justified by law, in doing it." (Similar to Section 76 of the IPC).

Section 16 of the BNS states that "Nothing is an offence which is done by any person who in consequence of mistake of fact, in good faith, believes himself to be bound by law to do it." (Similar to Section 79 of the IPC).

Explanation:

This defence applies when a person commits an act under a genuine and reasonable misapprehension of facts, and if the facts were as they believed them to be, their act would have been lawful or they would have been legally bound to do it. The mistake must be of fact, not of law, and it must be made in good faith.

Good faith here means acting with due care and attention. The mistake must be such that a reasonable person in the same circumstances would have made it.

Example: A police officer arrests a person, honestly and reasonably believing them to be the person mentioned in a warrant, based on mistaken identity. If the person arrested is later found to be someone else, the officer may not be liable for wrongful arrest because they acted under a bona fide mistake of fact, believing they were justified by law.

Ignorance of Fact vs. Ignorance of Law

The defence of mistake of fact is distinguished from mistake of law. The maxim 'Ignorantia facti excusat, ignorantia juris non excusat' is relevant here: Ignorance of fact is an excuse, but ignorance of law is no excuse.

• Ignorance of Fact: A genuine and good faith misunderstanding of a factual situation may negate the required Mens Rea or provide a legal justification (as per Sections 15 and 16 of BNS). This can be a valid defence.

• Ignorance of Law: The fact that a person was unaware of the law or misinterpreted it is generally not a valid defence to a criminal charge. It is presumed that everyone knows the law. This principle is necessary for the effective enforcement of law. (Section 17 of BNS - similar to Section 79 Exception in IPC - implicitly supports this principle by requiring mistake to be of fact and not law).

However, mistake of law can be relevant in some specific contexts, such as negating a specific intent if proof of knowledge of the law is an element of the crime (though this is rare).

Mistake of Law

As discussed, ignorance of law is generally not a defence in criminal law.

Principle:

Section 17 of the BNS (similar to Section 79 exception in IPC) implies the principle that a mistake of law is not a valid ground for defence. If a person commits an act that is a crime, their unawareness that the act is legally prohibited does not excuse them from liability.

Example: A person commits a crime in India, claiming they were unaware that the act was illegal according to Indian law. This lack of awareness is generally not a defence.

The rationale behind this principle is the need to ensure the enforceability of laws and prevent individuals from evading responsibility by claiming ignorance. It places a duty on individuals to know the laws of the land.

Limited Relevance:

While not a general defence, mistake of law can potentially be relevant in very limited circumstances, such as:

• If the crime requires proof of knowledge of a specific legal status or fact (though this is rare). For instance, a crime requiring knowledge that a person is a public servant might be influenced by a genuine mistake about that person's legal status.

• In sentencing, a genuine, though incorrect, belief about the law might be considered a mitigating factor.

However, as a general rule, mistake or ignorance of law does not excuse criminal liability under the BNS.

Judicial and Official Acts

Acts done by judges and public servants in the course of their official duties, performed in good faith, are generally protected from criminal liability.

Provision:

Section 18 of the BNS (similar to Section 77 of the IPC) states that "Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law."

Section 19 of the BNS (similar to Section 78 of the IPC) states that "Nothing which is done in pursuance of, or which is warranted by the judgment or order of a Court of Justice; if done whilst such judgment or order remains in force, is an offence, notwithstanding that the Court may have had no jurisdiction to pass such judgment or order, provided the person doing the act in good faith believes that the Court had such jurisdiction."

Explanation:

• Judicial Acts: Judges acting judicially are protected from criminal liability for acts done in good faith in the exercise of their powers. This protection is essential for the independence of the judiciary, allowing judges to perform their duties without fear of criminal prosecution for their judgments or orders.

• Acts Done under Court Order: Persons acting in pursuance of a judgment or order of a court are protected from criminal liability, even if the court lacked jurisdiction, provided they act in good faith believing the court had jurisdiction. This protects those who execute court orders (e.g., police officers, court officials).

Section 20 of the BNS (similar to Section 76 read with Section 52 of the IPC, and Section 79) protects public servants acting in good faith and believing themselves to be justified by law.

The requirement of 'good faith' (acting with due care and attention) is crucial for claiming these defences.

Accident

An act that occurs purely by accident, without any criminal intention or knowledge, is generally not a crime.

Provision:

Section 21 of the BNS (similar to Section 80 of the IPC) states that "Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means, with proper care and caution."

Explanation:

This defence applies when harm is caused unintentionally and unexpectedly while a person is engaged in a lawful activity, performed in a lawful manner, and with proper care and caution. It negates the Mens Rea (criminal intention or knowledge) and also requires the absence of negligence (proper care and caution).

Example: A person, while lawfully chopping wood with due care and caution, accidentally causes a piece of wood to fly off and hit a passerby, causing injury. If there was no intention, knowledge, or negligence, it may be considered an accident.

If there is any element of criminal intention, knowledge, or even negligence (lack of proper care), the defence of accident may not be available. The act must be purely an unforeseen and unintended consequence of a lawful act done carefully.

Private Defence

The right of private defence allows a person to use necessary force to protect themselves or others, or their property, from unlawful aggression. It is a fundamental right in many legal systems.

Provision:

Sections 34 to 44 of the BNS (similar to Sections 96 to 106 of the IPC) deal with the right of private defence. Section 34 states that "Nothing is an offence which is done in the exercise of the right of private defence."

The right of private defence is available only against an act which is itself an offence or is punishable by law.

Right of Private Defence of Body

This right extends to defending one's own body or the body of any other person against any offence affecting the human body (e.g., assault, battery, kidnapping).

The use of force must be necessary to avert the danger. The right extends, in certain grave situations (Sections 36 & 37 of BNS, similar to 100 & 101 IPC), even to voluntarily causing death to the assailant, such as in cases of assault causing apprehension of death or grievous hurt, rape, kidnapping, or wrongful confinement causing reasonable apprehension of inability to approach public authorities.

Right of Private Defence of Property

This right extends to defending one's own property or the property of any other person, whether movable or immovable, against certain offences related to property (Sections 38 & 39 of BNS, similar to 103 & 104 IPC), such as theft, robbery, mischief, or criminal trespass.

The right extends, in certain grave situations (Section 38), even to voluntarily causing death of the wrongdoer, such as in cases of robbery, house-breaking by night, mischief by fire to a building, or theft/mischief/house-trespass causing reasonable apprehension of death or grievous hurt.

Limits of Private Defence

The right of private defence is subject to important limitations (Section 35 of BNS, similar to 99 IPC):

• Necessity: The force used must be necessary to avert the apprehended danger. It should not be more than is required for the purpose of defence.

• Proportionality: The harm caused must be proportionate to the harm apprehended. One cannot cause excessive harm for a minor threat.

• No Right if State Aid is Available: The right does not extend to inflicting more harm than is necessary to repel the attack. There is no right of private defence in cases where there is time to have recourse to the protection of public authorities.

• No Right Against Acts of Public Servants: There is no right of private defence against an act done by a public servant or by direction of a public servant acting in good faith under colour of his office, even if that act is not strictly justifiable by law, provided there is no apprehension of death or grievous hurt.

The law provides for the right of private defence not to encourage aggression, but to allow individuals to protect themselves and their property when the state's protection is not immediately available. It is a defence that justifies the use of force that would otherwise be unlawful.

Infancy

The law recognizes that young children lack the mental capacity to form criminal intent and are therefore protected from criminal liability.

Provision:

Section 22 of the BNS (similar to Section 82 of the IPC) states that "Nothing is an offence which is done by a child under seven years of age."

Section 23 of the BNS (similar to Section 83 of the IPC) states that "Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion."

Doli Incapax

The principle of 'Doli Incapax' means 'incapable of crime'. It refers to the presumption in law that a child below a certain age is incapable of forming the necessary criminal intent (Mens Rea) and therefore cannot be held criminally liable.

• Below 7 Years (Section 22 BNS): A child under seven years of age is conclusively presumed to be Doli Incapax. Any act done by a child in this age group is absolutely not an offence, regardless of their understanding. This is an absolute defence.

• Between 7 and 12 Years (Section 23 BNS): A child between seven and twelve years of age is presumed to be Doli Incapax, but this presumption is rebuttable. The prosecution can prove that the child had attained sufficient maturity of understanding to judge the nature and consequences of their conduct. If such maturity is proven, the child may be held criminally liable.

These provisions recognise the developing cognitive and moral capacity of children and provide protection from criminal responsibility for young offenders who lack the understanding of the wrongfulness of their actions.

Insanity

Mental illness or insanity can be a defence to criminal liability, as it may negate the presence of Mens Rea or the capacity to understand the nature and consequences of one's actions.

Provision:

Section 24 of the BNS (similar to Section 84 of the IPC) states that "Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law."

M'Naghten Rules

The legal test for criminal insanity in India is largely based on the M'Naghten Rules, which originated from the English case R v M'Naghten (1843).

According to the M'Naghten Rules (as adapted in Indian law under Section 24 of BNS/Section 84 of IPC), the defence of insanity requires proof that at the time of committing the act, the accused was, by reason of unsoundness of mind, incapable of knowing either:

1. The nature of the act (e.g., did not know they were holding a knife, or did not know stabbing would cause injury); OR

2. That the act was either wrong or contrary to law (e.g., knew they were stabbing, but believed they were morally justified or legally permitted to do so due to their mental delusion).

The unsoundness of mind must be such that it causes this incapacity to know. It is the legal insanity at the time of the act, not medical insanity, that is the defence. The burden of proving insanity is on the accused (on a balance of probabilities). If the defence is successful, the accused is acquitted but may be detained in a mental institution.

This defence is based on the principle that a person who lacks the mental capacity to understand their actions or their wrongfulness should not be held criminally liable.

Intoxication

Intoxication (by alcohol or drugs) can potentially be a defence or affect criminal liability, depending on whether it was voluntary or involuntary.

Provision:

Section 25 of the BNS (similar to Section 85 of the IPC) deals with acts done by a person incapable of judgment by reason of intoxication caused against their will.

Section 26 of the BNS (similar to Section 86 of the IPC) presumes knowledge or intention in case of intoxication unless the contrary is proved.

Voluntary vs. Involuntary Intoxication

• Involuntary Intoxication (Section 25 BNS): If a person commits an act while intoxicated to the extent of being incapable of knowing the nature of the act, or that it was wrong or contrary to law, and the intoxication was administered to them without their knowledge or against their will, they may have a defence. The law treats involuntary intoxication similarly to insanity.

• Voluntary Intoxication (Section 26 BNS): If a person commits an act while voluntarily intoxicated (they consumed the intoxicant willfully), it is generally not a defence. The law presumes that the person had the same knowledge as they would have had if they were not intoxicated. However, voluntary intoxication may be relevant in determining whether the accused had the required specific intent for a crime (e.g., if the intoxication was so severe as to prevent the formation of the specific intent required for theft or murder).

The distinction between voluntary and involuntary intoxication is crucial, and the law takes a stricter approach to self-induced intoxication, generally not allowing it as a complete defence but potentially relevant for negating specific intent in certain crimes.

Consent

In certain circumstances, the consent of the victim to suffer harm can negate criminal liability. The extent to which consent is a defence depends on the nature of the harm caused.

Provision:

Sections 81 to 92 of the BNS (similar to Sections 87 to 94 of the IPC) deal with acts done with consent.

• Section 81 BNS (similar to Section 87 IPC): An act not intended to cause death or grievous hurt, done with consent, is not an offence if done for the benefit of a person above twelve years of age.

• Section 82 BNS (similar to Section 88 IPC): An act not intended to cause death, done with consent, is not an offence if done in good faith for the benefit of a person.

• Section 83 BNS (similar to Section 89 IPC): An act done in good faith for the benefit of a child under twelve years of age or a person of unsound mind, with the consent of the guardian, is not an offence, provided it is not intended to cause death and is not done in a reckless manner.

• Section 84 BNS (similar to Section 90 IPC): Defines 'consent'. Consent is not valid if given under fear, misconception, or by a person of unsound mind or intoxication, or by a child under twelve years.

Effect of Consent on Criminal Liability

• Consent to Minor Harm: Consent can be a defence if the harm caused is minor or not intended to be serious, and the act is done for the benefit of the person consenting (Section 81 & 82 BNS).

• Consent in Medical Context: Consent to medical procedures (even if risky) is a defence if the procedure is done in good faith for the patient's benefit, without intention to cause death (Section 82 BNS). For minors or persons of unsound mind, guardian's consent is required (Section 83 BNS).

• Consent does NOT legalise serious harm or crimes: Consent is generally not a defence to crimes involving serious harm, such as voluntarily causing death or grievous hurt, rape, etc. One cannot consent to be murdered or grievously hurt, and consent obtained through fear, misconception, or from persons lacking capacity (minors, insane, intoxicated) is not valid consent in the eyes of the law (Section 84 BNS).

The defence of consent is limited and applies primarily to situations where the consented act does not constitute a grave crime or where the act is done for the benefit of the consenting person, reflecting the law's balance between individual autonomy and the protection of fundamental interests.

Trifling Acts

The law does not concern itself with minimal matters. An act that causes such slight harm that no person of ordinary sense and temper would complain about it is generally not considered a crime.

Provision:

Section 93 of the BNS (similar to Section 95 of the IPC) states that "Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known by the doer to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm."

Explanation:

This defence applies to acts that cause trifling harm. It prevents the criminal justice system from being burdened with trivial matters. The test is objective: whether a person of ordinary sense and temper would complain, not whether the actual victim complained.

Example: A minor accidental touch, a slight unintentional push in a crowded place that causes no injury, or a very minor trespass without any damage might fall under this defence.

The extent of harm is assessed based on factors like the nature of the injury, the possible loss caused, etc. The defence ensures that the criminal law is applied proportionately to the seriousness of the wrong.

Communication made in Good Faith

Making a communication to someone that causes harm is not an offence if it is done in good faith and for the benefit of the person to whom it is made.

Provision:

Section 94 of the BNS (similar to Section 93 of the IPC) states that "No communication made in good faith is an offence by reason only of its causing harm to the person to whom it is made, for whose benefit it is made."

Explanation:

This defence applies when a communication causes harm (e.g., emotional distress, shock) but is made with good faith and for the benefit of the person receiving it. Good faith implies acting with due care and caution. Benefit is not necessarily limited to physical benefit but can include other forms of well-being.

Example: A doctor informing a patient of a serious illness in good faith, believing it is for the patient's benefit, even though the news causes distress. Or a friend informing someone of a danger in good faith, even if the news is alarming.

The defence protects communications made for legitimate reasons, where the potential harm is an unavoidable consequence of providing necessary information, provided it is done carefully (good faith) and with the intention of benefiting the recipient.

These exceptions and defences in the BNS (like the IPC) are crucial for determining criminal liability, ensuring that only those who are blameworthy and whose actions meet the full legal criteria for a crime are held responsible, and protecting individuals acting under specific justifying or excusing circumstances.