Understanding Mens Rea: Intention, Motive, and Exceptions in BNS

Mens rea or guilty intention is the sine qua non of a criminal act and is an essential element of a crime. The law differentiates between persons who may have acted innocently or by mistake, and those who have acted consciously with intent to cause harm. If law were to punish persons who acted innocently and who had no intention whatsoever to cause harm, then there would be no public acceptance of the same. The object of the law is always to punish a person with a guilty mind. It does not want to put behind bars an innocent person who may have had the misfortune of being involved in an incident and event, which he did not have the intention of participating in.

The underlying principle of the doctrine of mens rea is expressed in the familiar Latin maxim - actus non facit reum nisi mens sit rea - the act does not make one guilty unless the mind is also guilty.

The fact that mens rea has been made central to criminal liability, also includes that every person has the capacity to choose between right and wrong. Once a person makes a choice, he has to take the responsibility for the same.

The necessity of a guilty mind differs with offence. In the instance of murder, it is the intent to kill; in the case of theft, it is the intent to steal; in the case of rape, it is the intent to have sexual relations with a woman without her consent, and so on.

Penal statutes, which define or describe what is an offence, very often bring in the mental element to the act by using the words, 'intentionally', 'voluntarily', 'willfully', 'knowingly', 'reason to believe' etc. These words have been used in the different definitions of crime to indicate the state of the mind of the person at the time of commission of the offence.

The element of mens rea as an essential ingredient of a crime is also approved by the growing modern philosophy of penology. Modern day criminal jurisprudence no longer accepts retribution as the main object of criminal law. The object is that punishment should fit the offender and not merely the offence.

Mens Rea in the BNS

Mens Rea has been recognized in BNS by :

1. Importing different terms indicating evil intent, and
2. Chapter on General Exception

Different Terms Indicating Mens Rea

The BNS sets out the definition of offences, the general conditions of liability, the conditions of exemptions from liability and punishments for the respective offences. Common law doctrine of mens rea has not been specifically provided in the Sanhita. However, it has been imported by using different terms indicating the required evil intent or mens rea as an essence of a particular offence.  Almost all the offences under the IPC are qualified by one or the other words such as 'wrongful gain wrongful loss’, 'dishonestly', 'fraudulently’, ''reason to believe', 'criminal knowledge or intention' 'intentional cooperation', 'voluntarily', 'malignantly', 'wantonly', maliciously. All these words indicate the blameworthy mental condition required at the time of commission of the offence, in order to constitute an offence.

Mens rea is not a unitary concept. Depending on the nature of the crime, mens rea may be presence or existence of intention in some cases, or requirement of knowledge in some, and negligence in some others.

Intention as Mens rea

Intention is the conscious exercise of the mental faculties of a person to do an act with a specific goal or outcome in mind. Intention, therefore, is usually used in relation to the consequences of an act, and not in relation to the act itself. It is not just about doing an act, but doing it with a specific aim or purpose in mind.   

Example 1 - If a person fires a gun at someone with the desire to kill, the act of shooting is accompanied by the intention to cause death this intention forms the mental component (mens rea) of the offence of murder.

Example 2 - If a person strikes another person because they want to cause harm, the intention is to injure and that intention forms the mental element (mens rea) of the offence.

The idea of 'intention' in law is not always expressed by the words 'intention', 'intentionally' or 'with intent to'. It is expressed also by words such as 'voluntarily', 'willfully', 'deliberately', 'deliberate intention', 'with the purpose of'. All these varied expressions find place in the various sections of the IPC.

Intention and Motive

Intention and motive are often mistaken as the same, but they are quite different in criminal law. Intention refers to the immediate purpose behind doing an act that a person wants to achieve. On the other hand, motive is the reason or emotion that drives a person to form that intention such as anger, jealousy, greed, revenge, or love.

Legal scholar Austin explained this difference by saying that motive is the “spring of action”, while intention is the “aim of the act” meaning that motive pushes a person to act, and intention is what the person aims to achieve by that act. For example, if a person kills someone out of jealousy, the intention is to cause death, while the motive is jealousy. In criminal law, intention is essential to establish guilt, but motive is not required to prove a crime. However, motive can still be important in a case especially when deciding how serious the punishment should be. A strong or evil motive can increase the sentence (aggravation), while a sympathetic motive might reduce it (mitigation).

In Shamsher Singh v State of Haryana (2002), wherein evidence of eyewitnesses and the medical evidence disclosed that the death of the deceased was due to the injury caused by the accused, the Supreme Court upheld the conviction of the accused under s 302, IPC, even though there was no direct motive for causing the Homicide. In Om Prakash v State of Uttaranchal (2003), rejecting the plea that the prosecution could not indicate the motive for killing three members of a family, the Supreme Court ruled that failure to prove motive is irrelevant in a case wherein guilt of the accused is proved." Conversely, motive by itself cannot be proof of an offence. Conversely, the Apex Court in State of Uttar Pradesh v Arun Kumar (2003), emphasised that proof of motive in the absence of proof of guilt of an accused does not warrant his conviction.

Knowledge as Mens Rea

In criminal law, knowledge means a person’s awareness or understanding of certain facts or consequences related to their actions. It reflects the mental state where the person knows that what they are doing will likely lead to a particular result. A person is said to have knowledge when they directly perceive something through their senses, or when they are informed of a fact by someone they have no reason to doubt.

Knowledge is subjective, it depends on what the individual personally knew at the time of the act. It is different from intention, though the two often overlap. Intention involves actively wanting a certain outcome, while knowledge involves being aware that a certain outcome will probably happen, even if not desired.

The line between intention and knowledge can be thin but important. For instance:

• Knowledge is a passive mental awareness - the person understands the consequence.
• Intention is an active mental decision - the person wants the consequence to happen.

Example 1 - B supplies drinking water to workers knowing that the water is contaminated. As a result, several workers fall seriously ill. B had knowledge of the harmful nature of the water but still allowed its use, he will be liable even though he did not intend to.

Example 2 - C, the owner of a building, is told by engineers that the structure is unsafe and likely to collapse. He still rents it out. The building later collapses, killing a tenant.  C acted with knowledge of the danger and will be made liable.

Example 3 - D, a pharmacist, knowingly sells expired medicines, which leads to serious harm to a patient. D had no intention to harm but had knowledge of the risk.

Negligence as Mens rea

In criminal law, negligence refers to a person’s failure to take reasonable care to avoid causing harm to others. It means not acting with the level of caution, attention, or skill that a reasonable and prudent person would exercise in similar circumstances. This carelessness can lead to unintended harm, which the law may treat as a criminal offence.

Criminal negligence is more than just an ordinary mistake, it involves a gross or serious lack of care, especially in situations where safety and life are at risk. For example, a doctor performing surgery without proper hygiene, or a driver speeding through a crowded area, may both be criminally negligent.

Although negligence is not a mental state like intention or knowledge, and does not usually involve a guilty mind (mens rea), the BNS (Bhartiya Nyaya Sanhita) still recognizes it as a basis for criminal liability in certain situations. This is because, in such cases, the law punishes negligence not to blame the mind, but to encourage higher standards of responsibility and protect public safety.

Thus, negligence in criminal law is more of a legal fault than a mental state, and its punishment serves a social purpose to discourage careless conduct that endangers others.

Chapter on General Exception

The chapter on General Exceptions ultimately outlines situations that are inconsistent with the presence of the required guilty mind or mens rea, and therefore exempt the individual from criminal liability. For example, acts committed under a mistake of fact, by a child under seven years of age, or by a person of unsound mind, do not amount to offences because the necessary mental element is absent. In this way, the chapter, albeit in a negative form, acknowledges the common law principle of mens rea.

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Exceptions To Mens Rea

This general or traditional rule that mens rea is an essential element of crime is not without its exceptions. Like all other statutes, the deciding factor on whether mens rea is required or not, depends on the language of statute and the intention of the legislature as gathered from the statute.

In Queen v Tolson (1889), it was laid that although prima facie and as a general rule there must be a mind at fault before there can be a crime, it is not an inflexible rule, and a statute may relate to such a subject matter and may be so framed as to make an act criminal whether there has been any intention to break the law or otherwise to do wrong or not. There is a large body of municipal law in the present day which is so conceived.

Wright J., in Sherras v De Rutzen (1895), observed that “there is a presumption that mens rea an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but the 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, and both must be considered”.

Such views of English Courts have also been adopted by Indian Courts too. In Ravule Hariprasada Rao v State (1951), " the Supreme Court ruled that unless a statute either clearly or by necessary implication rules out mens rea as a constituent element of a crime, a person should not be held guilty of an offence unless he had guilty mind at the time of commission of the act”. In State of Maharashtra v Mayer Hans George (1965), it was observed that there is a presumption that mens rea is an essential ingredient of a statutory offence. It, nevertheless, may be rebutted by the express words of a statute creating the offence or by necessary implication.

Considering the above observations of the court, we can say that deciding factor on whether mens rea is required for an offence depends on the language of the statute and the intention of the legislature as inferred from its provisions. For instance, Section 292 of the IPC (now Section 294 of BNS) criminalizes the sale, hire, distribution, public exhibition, import, or export of obscene books, pamphlets, writings, drawings, etc. In the landmark case of Ranjit D. Udeshi v. State of Maharashtra, the accused was prosecuted for selling Lady Chatterley's Lover, a well-known novel by D.H. Lawrence. He argued that he was unaware of the book’s obscene content and therefore lacked the required mens rea. However, the court rejected this defense, observing that Section 292 does not use the word "knowingly", unlike some other sections of the IPC. It held that knowledge of the obscene nature of the material is not a necessary element of the offence under this section. The Court further ruled that Section 292 of IPC imposes strict liability, and hence, mens rea is not required for conviction.

Kenny in his book “Outlines of Criminal Law”, pointed out that legislature create strict liability for offences where small pecuniary penalty is incurred or where it would be difficult to procure adequate proof of mens rea in such offences. To permit such a defence would be to allow every violator to avoid liability merely by pleading lack of knowledge.

Strict Liability in BNS/IPC :

• Public Nuisance
• Obscenity
• Kidnapping
• Abduction
• Bigamy

Public Welfare Offences

Over the past few decades, a wide array of social and public welfare legislations have been framed in a way that the mere act of commission or omission is treated as punishable, regardless of intent. In such cases, criminal liability may be imposed even in the absence of mens rea or legal fault.

The requirement of mens rea has been set aside in the context of social and public welfare legislations. These laws are enacted in the interest of the greater public good. Requiring proof of mens rea to penalize violations under such laws could undermine their purpose and defeat the very objectives they aim to achieve. They often deal with:

• Food safety - Prevention of Food Adulteration Act, 1954
• Drug regulation - Drugs and Cosmetics Act, 1940
• Environmental protection - Environment (Protection) Act, 1986
• Public Health - Cigarettes and Other Tobacco Products Act (COTPA), 2003
• Protection of Workers - Factories Act, 1948
• Economic welfare - Foreign Exchange Management Act, 1999
• Protection of marginalized communities - Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

The exclusion of mens rea cannot be presumed merely because a statute aims to combat a grave social evil or to achieve socio-economic welfare. In Nathulal v. State of Madhya Pradesh, the Supreme Court held that mens rea is an essential ingredient of a criminal offence, unless the statute expressly or by necessary implication excludes it.

Vicarious Liability

Vicarious liability refers to the imposition of liability on one person for the unlawful acts of another, based on a particular relationship between them.

Under certain statutes and situations, a person may be held criminally liable for the acts of another, even without any personal mens rea. It promotes accountability of those in authority, especially when control or supervision is expected.

While BNS largely adheres to the principle of individual mens rea, provisions like Sections 190 and Section 193 introduces vicarious or constructive liability, making them exceptions to the general rule.

Section 190 of BNS (S. 149, IPC) provides that "every member of an unlawful assembly is guilty of the offence committed by any member in prosecution of the common object.” every member of that assembly can be held liable, even if they had no personal intention (mens rea) to commit that specific offence.

Section 193 (1) of BNS (S. 154, IPC) provides for liability of owner/occupier of land for unlawful assembly conducted there if he fails to give notice to authorities.

Section 193 (2) of BNS (S. 155, IPC) provides for liability of persons for whose benefit an unlawful assembly is held. Here, vicarious liability is imposed for benefit-based involvement.

 

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