INTRODUCTION

In a civilised society, any act of omission against the fundamentals of humanity is considered a
crime. The person who has committed the crime must carry responsibility/liability for it.
Crime, in general, can be defined as any act that harms other people or the society at large and
disturbs the peace and order of the society. Crimes can be classified into four parts i.e. moral,
social, religious and political in nature. Many sociologists have aimed to define crime…
Sir William Blackstone defined crime as "Crime is an act committed or omitted in Violation of
public law forbidding or commanding it."
Sergeant Stephan stated that crime is an act forbidden by law, and at the same time revolts the
moral sentiments of people.
Similarly, according to Paul, An intentional act or omission is a violation of criminal law without
justification. Hence, crime is like searching for a black cat, a blind man in a dark room while
there is no black cat at all.
Crime can be of two types, namely civil and criminal. The concept of Crime may differ from
place to place; an act may carry a penalty in one country; however, the same act may be
acceptable in another country. Having defined crime, the next big question is what responsibility
does it carry?
This responsibility can be termed as Criminal Liability.

ANALYSIS
CRIMINAL LIABILITY1
A person's act can have positive, negative or neutral effects. A person is responsible for his or
her behaviour in the society. In legal terms, Criminal liability can be described as the
responsibility of the person who has committed a crime. Criminal intent is contrary to having
acted upon or committing an act either accidentally or unconsciously.
For an act to be considered criminal in nature, it must have four essential elements these are:

● Human being
● Mens Reus( mental element)
● Actus reus( act or omission)

1
Sistare, C. T. (1989). Responsibility and criminal liability (Vol. 7). Springer Science & Business
Media.

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● Injury

HUMAN BEING
For any act to be considered a crime, it must be committed by a human against another human,
animal or the society at large. In Ancient European countries, animals were also punished for
committing an offence. This was based on the theory of Retribution, and the right to puns was
with the individual. However, in the Indian legal system, no such act by an animal is considered
a crime.
For example, If one's pet dog has harmed the other person, then the dog will not be punished.
Instead, the owner of the dog would carry the liability of the punishment and would be held
responsible for the negligent act of his pet.

Mens Reus (Mental element)2

Mena Reus is an essential element that constitutes a crime. It is a Latin word which stands for”
Guilty mind.” In simple language, it can be said that a person must have made a mental intention
of committing a crime. Hence, the basic foundation of a crime is the mental state of the person.
The act alone cannot be an offence unless it is done with some criminal mind. This is based on
the legal maxim” Actus non facit reum nisi mens sit rea.”. The believers of this maxim believe
that each human is born free and has the ability to understand what is right and wrong for him.
He has the wisdom to choose the correct path. However, if the person chooses a contrary path,
then he must be held liable and responsible for his actions.

In the case of “B.NATHULAL Vs State of M.P.”3

In this case, the accused, a food grain dealer, applied for a licence and deposited the required
licence fee. He, without knowledge of the rejection of his application, purchased food grains and
sent returns to the licence authority, who, on checking, found that it was in excess of the quality
permitted by section 7 of MP Food Grain Dealers licence order 1958. The accused was
prosecuted; however, he was acquitted on the grounds that he had no guilty mind.

2
Stasi, A., & Stasi, A. (2021). Actus Reus and Mens Rea. General Principles of Thai Criminal Law, 25-
30.
3
AIR 1966 SC 43

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“C.Malhan K.A vs Kora Bibi Kutti”4
The accused was a financer. He seized a vehicle for which he financed but did not receive the
instalments. The person from whom the vehicle was seized complained to police, alleging that
the accused had stolen his vehicle. The apex court held that the element of mens reus is totally
wanting in this case, and the accused was not convicted for the offence of theft.

In the BNS, there are certain provisions where mens reus is not required, for instance-
Public nuisance, cases which are not criminal in nature but are prohibited in the interest of the
public at large, Strict liability offences, absolute liability

Previously, The Indian Penal Code of 1860 did not list the offences that can be defined under
Mens Reus. However, certain words such as wrongful gains, criminal intention, motive,
knowledge and many more constitute Mens Reus.

Act Reus (Act or Omission)5

The word Actus Reus is derived from a Latin word meaning “Guilty act.“
The intention or motive of committing a crime must be carried out by a physical act of the crime
for the act to be considered as a punishable offence. For the act to be considered punishable, it
must be forbidden or be in violation of the legal rules and regulations of the land. People
consider “Actus Reus” as the physical action of human conduct.
The legal maxim that governs Actus Reus is “ Actus me invito factus non est mens actus”. This
maxim states that although a guilty mind is required for an act to be called a crime, it must be
coupled up with a voluntary act that is not carried out under any compulsion.

There can be the absence of mens rea in actus rea sometimes. For example, a person with an
unsound mind commits a murder; there is no mens rea present, but actus rea is present. On the
other hand, there can be mens reas without actus reas. For instance, a person walking on a street
sees a bike and thinks of stealing it but doesn't steal it. Mens reas is present, but actus reas is
absent.

4
1996 SCC 281
5
Chiao, V. (2014). Acts and Actus

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 INJURY
Section 2(14) of the BNS defines injury, which clearly states that “injury is any harm which is
illegally caused to any person, in body, mind, reputation or property.” These harms can be done
through mental harassment, hurt, defamation or by trespass.

All four of these essentials need to go hand in hand to constitute a crime or give rise to criminal
liability.

TYPES OF CRIMINAL LIABILITY6

There are different types of criminal liability that can be categorised as individual criminal
liability, group/joint criminal liability and constructive liability. Understanding these liabilities
plays an essential role in understanding the criminal laws of the country.

● INDIVIDUAL CRIMINAL LIABILITY

When an offence is committed by a person, then he will be held responsible for the crime that
has been committed by him.
For instance, Rohit, Ram and Kumar are three colleagues. One day, Ram steals Kumar’s
smartphone. In this case, Ram is held responsible for the unlawful act of committing theft, while
Rohit will not carry any liability.

● GROUP/JOINT CRIMINAL LIABILITY

Taking the individual criminal liability forward, an offence or unlawful activity involving two or
more people is termed as group criminal liability. All the participants participating directly or
indirectly in the office will be held responsible and punished for the crime. Most of the organised
and planned crimes, such as dacoity, gang rape, etc., will fall under the ambit of criminal joint
liability.
An act done by several persons in furtherance of common intention. section 3(5) of the BNS
2023

6
Sistare, C. T. (1989). Responsibility and criminal liability (Vol. 7). Springer Science &

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 “When a criminal act is done by several persons in furtherance of the common intention of all,
each of such persons is liable for that act in the same manner as if it were done by him alone.
● SECTION 3(6) OF BNS 20237
The provision states that “An act which is criminal by reason of its being done with a criminal
knowledge or intention.”
This provision explains that when an offence is committed with knowledge and intention, then
the other people joining the act with the same intention and knowledge will be held liable for the
offence as the act is committed by him alone.

● SECTION 3(7)8 BNS 2023

Refers to the effect caused partly by act or partly by omission. This section states that if an
offence is done partly by physical act and partly by omission, then the effect will be punishment
for the same.

● SECTION 3(8)9 BNS 2023

When an unlawful activity is carried out through many acts, then all the people who have been
part of the activity will be held responsible for the unlawful activity.

● Section 3(9)10BNS 2023

When more than two people take part in carrying out an unlawful activity, then they may be held
liable for different offences according to their part in the offence.

● CONSTRUCTIVE LIABILITY
Constructive liability is a type of criminal liability where the person is liable for the offence or an
act he has not committed himself. He or she is just an instrument, and the main offender is
someone else.
Example: Abetment.

7
The Bharatiya Nyaya Sahita, 2023
8
The Bharatiya Nyaya Sahita, 2023
9
The Bharatiya Nyaya Sahita, 2023
10
The Bharatiya Nyaya Sahita,

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 “Allauddin Mian Vs State of Bihar”11
The Supreme Court declared this as the classic case of constructive liability, where every
member was charged with punishment for unlawful assembly. A similar verdict was passed in
the case of “Rama Pasi and Another vs State of UP.”12

● STRICT LIABILITY
This concept was highlighted in the case of “ Ryland vs Fletcher.”13
This is a type of liability which is strict in nature. It states that a person can be held liable for an
office without actual proof of its conduct.
E.g.: sale of tobacco/cigarettes to a
minor. Waging war

● NEGLIGENCE
Negligence is a type of offence in which the intent doesn't play an important role; rather, it
focuses on the knowledge that the person has about his or her actions, which may be unlawful,
giving rise to undue risk to others.
E.g., industries emitting harmful gases and polluting the air cause health risks.

WHAT ARE THE CONSEQUENCES OF CRIMINAL LIABILITY

According to the law, which is the common opinion of common people, a criminal act can have a
far-reaching impact on the future of the person or group of people. Depending on the seriousness
of the offence, the punishments can range from minor fines to solitary confinement. Cases that
are serious in nature, such as murder, rape, and terrorist attacks, calls for harsh punishments,
such as life imprisonment and even death penalty in severe cases. Apart from time in jail, a
person may face consequences such as their professional licence being taken away, leading to
loss of livelihood. The government takes away all assets and properties. Last but not least,
conviction for criminal activity will create a permanent record of the individual and the criminal
11
1989 AIR 1456
12
(1989 )1 SCC 437
13
LR 3 HL 330

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 and this would lead to loss of employment opportunities as well as public shame of the
individual.
ISSUES RELATING TO CRIMINAL LIABILITY
We are well into the 21 st century, and with the advancement of technology, the nature of crime
has drastically undergone a change. This requires our judicial system to become robust and enact
laws that take the set of new crimes under its ambit. The government of India has introduced new
criminal laws to tackle the issues relating to criminal liability.
The main issues plaguing criminal liability are the following:

● Proving Mens Reus

It becomes a difficult task, especially in cases of a person suffering from mental issues such as
insanity or bipolar disorder.

● Proving Actus reus

It is difficult to determine if an unlawful act was done voluntarily and with the direct aim of
causing harm.

● Strict liability
It becomes problematic as punishment can be without the presence of proof or knowledge.

● Causation
It becomes difficult to prove the link between the actions of the defendant and the harm caused
by his actions.

● Pendency of cases
According to surveys, it has been found that a large number of cases are pending before the
judiciary especially in the lower and subordinate courts and awaiting verdicts to be passed.

● A large no of under-trials
The Indian jails are filled up with a large number of undertrials who are waiting for the verdict to
be passed.

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● Investigation process
The extensive workload and lack of accountability of the investigating agency is one of the
prime reasons for the lack of speedy judicial reforms.

CONCLUSION
It can be summarised by saying that criminal liability is the base of establishing peace and order
in society. It ensures that people who commit an offence are held responsible for their unlawful
actions and behaviour. Through this essay, we have highlighted the essential elements that
constitute a crime and give rise to criminal liability. Criminaliability has various types which in
which the procedure and the punishment may differ. Having understood criminal liability in
detail, one needs to create new reforms. The government of India has introduced new criminal
laws replacing the laws that have been followed in India since the colonial era. The reform
introduced by the government aims at protecting the rights of the victims by launching victim
protection programmes. The main aim of understanding criminal liability is to create a legal
framework that enables speedy justice by holding people accountable for the act.

REFERENCES
● https://www.aironline.in/login.html
● https://www.manupatrafast.com/?t=desktop
● https://www.jstor.org/

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