Important Topics

Bhartiya Nyay Sanhita

Unit-1
Constituent Elements of Crime

A crime is a combination of human action and legal prohibition. To constitute a punishable

offense, certain essential elements must be present. These elements ensure that only culpable
actions are penalized while protecting innocent individuals from unwarranted liability. The
Bharatiya Nyay Sanhita, 2023 (BNS) codifies these elements, which are commonly divided
into Human Being, Mens Rea, Actus Reus, and Injury.

1. Human Being as an Offender

The first essential element is the presence of a human being capable of committing the crime.
Certain individuals, such as minors or persons with mental incapacities, are exempt from
criminal liability due to their inability to form intent.

 Provision in BNS, 2023:

o Section 82: A child below seven years of age is considered incapable of
committing a crime (absolute immunity).
o Section 83: A child aged 7–12 is presumed incapable of crime unless proven
to have sufficient maturity to understand the nature of their act.
 Case Law:
o Hiralal Mallick v. State of Bihar (1977): The Supreme Court emphasized that
legal personality and capacity are prerequisites for criminal liability.

2. Mens Rea (Guilty Mind)

Mens rea, or the guilty mind, refers to the intention or knowledge of wrongdoing. It is a
crucial element in most criminal offenses, distinguishing between accidental and intentional
acts.

 Provision in BNS, 2023:

o Section 114: Recognizes intention, knowledge, or negligence as foundational
for establishing liability.
o Mens rea is not required in strict liability cases, such as certain public welfare
offenses.
 Case Law:
 o State of Maharashtra v. M.H. George (1965): Highlighted that mens rea is
presumed unless specifically excluded by statute.
 Illustration: A person who accidentally hits another in a crowded area lacks mens rea
and, therefore, may not be criminally liable.

3. Actus Reus (Guilty Act)

Actus reus refers to the physical act or omission prohibited by law. It must be voluntary and
directly linked to the prohibited outcome.

 Provision in BNS, 2023:

o Section 115: Punishes preparatory acts only for specific offenses, such as
waging war or counterfeiting.
o Section 118: Addresses attempts, which are incomplete acts aimed at
committing a crime.
 Case Law:
o State of Gujarat v. Kisanbhai (2014): The Supreme Court held that the act
must be voluntary and causally linked to the outcome for criminal liability.
 Illustration: A person who pushes another off a building commits the actus reus of
murder if death results.

4. Injury (Resultant Harm)

Injury refers to the harm caused to another person, property, or society due to the wrongful
act. The harm must be recognized as such by law to constitute a crime.

 Provision in BNS, 2023:

o Section 44: Defines injury as any harm illegally caused to a person in body,
mind, reputation, or property.
 Case Law:
o R v. Ireland (1998): The court expanded the scope of injury to include
psychological harm as an actionable offense.
 Illustration: Defamation causing harm to reputation or theft resulting in financial loss
are examples of injury in law.

Interrelation Between Mens Rea and Actus Reus

For an act to constitute a crime, both mens rea and actus reus must coexist. This principle is
expressed in the Latin maxim actus non facit reum nisi mens sit rea (an act does not make a
person guilty unless there is a guilty mind).

 Case Law:
o R v. Cunningham (1957): The court clarified that the actus reus must coincide
with mens rea for a crime to exist.
Exceptions to Mens Rea

Certain offenses do not require mens rea and fall under the category of strict liability. These
are typically regulatory offenses meant to protect public welfare.

 Example in BNS, 2023:

o Offenses related to environmental violations or food adulteration may impose
liability without the need to prove intent.

Illustrative Table: Constituent Elements of Crime

Element Description Provision Case Law

Human A person capable of committing a Sections 82, 83 Hiralal Mallick v.
Being crime (excludes minors and those BNS, 2023 State of Bihar (1977)
of unsound mind).
Mens Rea Guilty mind or intention to commit Section 114 State of Maharashtra
a crime. BNS, 2023 v. M.H. George
(1965)
Actus Physical act or illegal omission Sections 115, State of Gujarat v.
Reus leading to a crime. 118 BNS, 2023 Kisanbhai (2014)
Injury Harm caused to person, property, Section 44 R v. Ireland (1998)
or reputation. BNS, 2023

Conclusion

The constituent elements of crime ensure a systematic framework for determining criminal
liability. The Bharatiya Nyay Sanhita, 2023 codifies these elements, balancing fairness with
justice. Case laws provide further clarity on their application, ensuring consistency in judicial
interpretation. By assessing these elements, the legal system ensures that only actions with
culpable intent and harmful consequences are punished, upholding the principles of justice
and equity.

Unit-2
Stages of Crime

The stages of crime reflect the gradual development of a criminal act, from the initial thought
to its execution. Recognizing and categorizing these stages is essential for understanding
criminal liability. The Bharatiya Nyay Sanhita, 2023 (BNS) codifies these stages, ensuring
clarity and precision in their application. The stages include intention, preparation,
attempt, and commission of the offense, each with distinct legal implications.
1. Intention (Mens Rea):

Intention, or mens rea (a guilty mind), is the starting point of any crime. It refers to the
mental decision to commit an unlawful act. However, intention alone does not attract
punishment under criminal law, as mere thoughts cannot constitute a crime unless
accompanied by an external act.

 Provision in BNS, 2023:

o Section 114: Establishes intention as a fundamental requirement for most
crimes. Without a guilty mind, no offense is deemed to have occurred, except
in strict liability cases.
 Case Law:
o R v. Mohan (1975): Intention was defined as a decision to bring about a
prohibited consequence, regardless of the likelihood of success. This case
emphasized that mere intention, unaccompanied by any act, is not punishable.

2. Preparation:

Preparation is the stage where the individual begins to arrange resources, tools, or plans
required to execute the intended crime. Although preparation demonstrates intent, it is
generally not punishable unless explicitly stated in the law. Certain grave offenses, such as
waging war or counterfeiting, make preparation itself an offense due to the potential danger
they pose.

 Provision in BNS, 2023:

o Section 115: Punishes preparation for offenses against the state, such as
waging war (Section 120) or counterfeiting currency (Section 232).
 Case Law:
o State of Maharashtra v. Mohammed Yakub (1980): The Supreme Court held
that preparation does not constitute an offense unless a specific law
criminalizes it. The court emphasized that acts must move beyond preparation
into an overt act to attract criminal liability in most cases.

3. Attempt:

Attempt marks the transition from preparation to the execution of a crime. It is defined as a
direct, overt act towards the commission of the intended offense, falling short of its actual
completion. Attempt is punishable because it demonstrates a clear intention and proximity to
the crime.
  Provision in BNS, 2023:
o Section 118: States that an attempt to commit an offense is punishable with the
same punishment as the offense itself unless a specific provision exists for the
attempt.
 Case Law:
o Abhayanand Mishra v. State of Bihar (1961): The Supreme Court clarified that
an act must be proximate to the intended crime and not merely preparatory to
qualify as an attempt. In this case, the accused applied to a university for
admission with forged documents but was caught before admission. The court
held this act constituted an attempt to cheat.
 Illustration: A person mixing poison in food intending to kill someone but being
stopped before the victim consumes it is guilty of an attempt.

4. Commission of the Offense:

This is the final stage, where the crime is successfully executed. At this stage, the individual
is fully liable for the offense, and punishment is determined according to the specific
provisions of the Bharatiya Nyay Sanhita, 2023.

 Example in BNS, 2023:

o Section 302: Deals with the offense of murder and prescribes punishment,
including life imprisonment or the death penalty, depending on the
circumstances.
 Case Law:
o Om Prakash v. State of Haryana (1999): The Supreme Court distinguished
between an attempt to murder (punishable under Section 118) and the actual
commission of murder (punishable under Section 302).

Distinction Between Preparation and Attempt

The distinction between preparation and attempt is crucial in determining criminal liability.
While preparation involves arranging means, attempt indicates a direct movement towards
the commission of a crime.

Aspect Preparation Attempt

Definition The stage of arranging tools or A direct, overt act towards the
means to commit the crime. completion of the crime.
Punishment Generally not punishable, except Always punishable, often with the
for certain grave crimes. same severity as the offense.
Proximity to Remains distant from the actual Comes close to the commission of
Crime commission of the crime. the intended offense.
Legal Section 115 BNS criminalizes Section 118 BNS penalizes
Provision preparation for specific crimes. attempts across all offenses.
Illustration Buying poison to kill someone is Administering poison but failing to
preparation. kill is an attempt.
 Case Law State of Maharashtra v. Abhayanand Mishra v. State of
Mohammed Yakub (1980) Bihar (1961)

Legal and Practical Significance of Stages of Crime

Understanding the stages of crime is vital for determining the degree of culpability and
ensuring justice. While mere thoughts cannot be penalized, acts that move closer to harming
society warrant legal intervention.

The Bharatiya Nyay Sanhita, 2023 provides a comprehensive framework to assess these
stages, offering clarity and consistency in applying the law. Case laws further aid in refining
the interpretation, ensuring fairness and proportionality in punishment.

In conclusion, the stages of crime illustrate the transition from intent to action, allowing the
justice system to distinguish between potential and actual harm. This framework ensures that
criminal liability is proportionate to the level of danger posed by an individual's actions.

Unit-3
1. History of Criminal Law: Hindu and Mohammedan Systems

The evolution of criminal law in India can be traced through its historical roots, which are
deeply influenced by the Hindu legal system and the Mohammedan legal system. These
systems laid the foundational principles for justice, morality, and societal order, influencing
subsequent legal developments.

A. Hindu Criminal Law

The Hindu legal system is one of the oldest legal traditions, based on Dharma, which integrates
religion, law, and morality. The law was primarily derived from sacred texts such as the
Dharmashastras, Manusmriti, and Arthashastra.

Key Features of Hindu Criminal Law:

1. Classification of Crimes:
o Hindu law categorized crimes into offenses against:
 Person (e.g., murder, assault).
 Property (e.g., theft, arson).
 Society (e.g., sedition, sacrilege).
 Morality (e.g., adultery).
2. Punishments:
o Punishments were both retributive and reformative, aiming to deter offenders
and purify their souls.
 o Manusmriti outlines punishments like fines (Danda), exile, and even death for
severe offenses.
3. Role of Kings:
o The king was the chief enforcer of justice and had the authority to prescribe
punishments.
o Arthashastra emphasized the protection of state interests and imposed harsh
penalties for crimes against the state.

Case Study:

 The principle of Dharma mandated proportionality between crime and punishment,

ensuring fairness. For instance, stealing food due to hunger attracted lesser penalties
compared to deliberate theft.

B. Mohammedan Criminal Law

With the advent of Islamic rule in India, the Mohammedan legal system emerged as the
dominant legal framework. It was primarily derived from the Quran, Hadiths, and Sharia,
emphasizing both divine justice and individual accountability.

Key Features of Mohammedan Criminal Law:

1. Classification of Crimes:
o Crimes were divided into:
 Hadd: Serious offenses with fixed punishments, such as theft and
adultery.
 Tazir: Lesser offenses where punishment was discretionary.
 Qisas and Diya: Crimes involving retaliation or compensation (e.g.,
murder).
2. Principle of Intent (Niyat):
o Mohammedan law stressed the importance of intention, and accidental acts
were treated differently.
3. Punishments:
o Fixed punishments (e.g., amputation for theft under Hadd laws).
o Blood money (Diya) was an alternative to retaliation for offenses like murder.

Case Study:

 The concept of Qisas (retaliation) allowed victims or their families to seek equivalent
retribution, promoting both deterrence and societal balance.
Comparison

Aspect Hindu Law Mohammedan Law

Source Dharmashastras, Manusmriti, Quran, Hadith, Sharia.
Arthashastra.
Focus Moral and religious duty (Dharma). Divine will and individual
accountability.
Classification Personal, property, societal, moral Hadd, Tazir, Qisas, Diya.
crimes.
Punishment Retributive and reformative. Fixed, discretionary, and
compensatory.

Conclusion

The Hindu and Mohammedan legal systems laid the groundwork for Indian criminal law by
emphasizing proportionality, intent, and societal balance. Their principles influenced the
colonial legal framework, culminating in the development of the Indian Penal Code, 1860, and
later the Bharatiya Nyay Sanhita, 2023.

2. Development of Criminal Law in India

The development of criminal law in India reflects a synthesis of indigenous traditions, colonial
policies, and post-independence reforms. It has evolved from religiously rooted systems to a
modern, codified framework under the Bharatiya Nyay Sanhita, 2023 (BNS).

A. Ancient Period

1. Hindu Legal System:

o Based on Dharma, with a focus on morality, justice, and order.
o Punishments were proportional and aimed at deterring crime while reforming
offenders (Manusmriti, Arthashastra).
2. Mohammedan Legal System:
o Emphasized divine law (Sharia), intent (Niyat), and proportional retribution
(Qisas).
3. Features:
o Criminal law was intertwined with religious principles.
o Justice was dispensed by kings or religious authorities.

B. Medieval Period

 During Islamic rule, the Mohammedan legal system became dominant.

 The administration of justice relied heavily on Islamic texts like the Quran.
  The system included Hadd, Tazir, and Diya to ensure a balance between divine justice
and societal harmony.

C. Colonial Period

The British introduced significant changes, transitioning from religious to secular laws.

1. Introduction of the Indian Penal Code (IPC), 1860:

o Drafted by Lord Macaulay, the IPC was a comprehensive code influenced by
English criminal law.
o It replaced religious-based justice systems with secular and uniform laws.
o Emphasized codification, clarity, and proportionality of punishments.
2. Criminal Procedure Code (CrPC), 1861:
o Established a systematic process for investigating, prosecuting, and adjudicating
crimes.
3. Key Features:
o Separation of powers between judiciary and executive.
o Shift towards evidence-based adjudication.

Case Law:

 Queen Empress v. Kadar Nath (1884): Demonstrated the British approach to applying
codified laws rather than relying on religious traditions.

D. Post-Independence Era

India retained the IPC and CrPC but introduced amendments to reflect changing societal
needs.

1. Key Reforms:
o Inclusion of laws addressing economic offenses, cybercrimes, and terrorism.
o Focus on human rights and procedural safeguards.
2. Bharatiya Nyay Sanhita, 2023:
o Replaces the IPC to modernize criminal law.
o Emphasizes proportional punishment, speedy justice, and victim rights.

Case Law:

 Maneka Gandhi v. Union of India (1978): Highlighted the need for criminal law to
align with constitutional principles of fairness and due process.
E. Challenges and Way Forward

1. Challenges:
o Backlog of cases leading to delayed justice.
o Outdated provisions failing to address contemporary crimes effectively.
2. Way Forward:
o Adoption of technology for speedy trials.
o Continuous reforms to address new challenges, such as cybercrimes and
organized crime.

Conclusion

The development of criminal law in India reflects a transition from religious and moral
foundations to secular and codified systems. The Bharatiya Nyay Sanhita, 2023 marks a
significant step in ensuring justice in a modern, democratic society while retaining the principles
of fairness and equity rooted in India's historical traditions.