Law of Crime: Origin, Elements, Stages and General Exceptions

• The first Law Commission for India was constituted under the Charter Act, 1833, with Thomas Babington Macaulay as its leading member.
• The Commission prepared a draft penal code in the 1830s. The draft underwent later revision before enactment.
• The Indian Penal Code, 1860 was enacted as Act 45 of 1860 and came into force on 1 January 1862.
• The IPC remained India's principal general penal code for more than 160 years, subject to amendments, constitutional decisions and special penal statutes.
• The Bharatiya Nyaya Sanhita, 2023 was enacted as Act 45 of 2023 and replaced the IPC as the current general penal law from 1 July 2024.

For examination purposes, criminal liability is commonly analysed through the following concepts:

1. Person capable of liability: there must be a legally attributable act or omission by a person or entity capable of criminal responsibility under the applicable law.
2. Mens rea: the required guilty state of mind-such as intention, knowledge, dishonesty, fraudulence, rashness or negligence-depends on the wording of the offence. Not every offence requires the same mental element.
3. Actus reus: the prohibited act or omission and, where required, the relevant circumstances and consequence.
4. Result or legally recognised harm: many offences require injury, loss, danger, fear, deception or another legally specified consequence, although some offences are complete without proof of actual physical injury.
5. Causation: where an offence depends on a prohibited consequence, the prosecution must establish the legally required causal connection.

Exam caution: "mens rea + actus reus" is a useful analytical formula, but the statutory wording of the particular offence always controls.

1. Intention: formation of the criminal design. Mere intention is ordinarily not punishable unless a statute specifically criminalises the conduct involved.
2. Preparation: arranging the means or measures necessary for commission. Preparation is generally not punishable, but the BNS creates specific exceptions, including preparation for certain grave offences such as dacoity.
3. Attempt: conduct that moves sufficiently beyond preparation towards commission of an offence. BNS Section 62 provides the general attempt provision where no specific attempt provision applies.
4. Commission / completion: all ingredients of the substantive offence are fulfilled.

The BNS places general exceptions in Sections 14-33, followed by the right of private defence in Sections 34-44. Important categories include:

The BNS preserves the right of private defence of body and property. The right is preventive and protective, not punitive. Its availability and extent depend on the circumstances and statutory limitations.

• Section 34: acts done in private defence are not offences.
• Section 35: right of private defence of body and property.
• Section 36: right may operate even against acts of persons lacking criminal capacity in specified circumstances.
• Section 37: limits on the right, including situations involving public servants and availability of recourse to public authorities.
• Sections 38-40: extent and commencement/continuance of defence of the body.
• Sections 41-43: defence of property, including when causing death may be justified.
• Section 44: protection where a defender faces risk of harm to an innocent person while exercising the right against a deadly assault.

Inchoate offences punish participation in or progression towards criminal conduct even before the principal offence is completed.

Abetment

BNS Section 45 defines abetment through instigation, conspiracy accompanied by the required act/illegal omission, or intentional aid. Section 46 defines an abettor. Further abetment provisions continue through Section 60.

Criminal Conspiracy

BNS Section 61 consolidates the definition and punishment of criminal conspiracy. The former IPC provisions were Sections 120A and 120B.

Attempt

BNS Section 62 provides the general punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment where no express attempt provision is separately provided.

Stolen property: BNS Section 317 defines stolen property broadly and punishes dishonest receipt or retention of such property, aggravated receipt from dacoity, habitual dealing and assistance in concealment or disposal.

Under the BNS, offences relating to marriage are placed in the chapter dealing with offences against women and children.

• Section 81: cohabitation caused by a man deceitfully inducing belief of lawful marriage.
• Section 82: marrying again during lifetime of husband or wife, including the aggravated concealment form.
• Section 83: marriage ceremony fraudulently gone through without lawful marriage.
• Section 84: enticing, taking away or detaining a married woman with criminal intent.
• Section 85: cruelty by husband or relative of husband.
• Section 80: dowry death.

BNS Section 356 retains criminal defamation. In substance, a person may commit defamation by making or publishing an imputation concerning another person through spoken words, words intended to be read, signs or visible representations, with the required intention, knowledge or reason to believe that reputation will be harmed, unless an exception applies.

Important statutory exceptions

• truth where publication is for the public good;
• good-faith opinion on the public conduct of public servants;
• good-faith opinion on conduct touching a public question;
• substantially true reports of court proceedings;
• good-faith opinion on the merits of a decided case and conduct of parties, witnesses or agents;
• good-faith accusations to persons having lawful authority;
• imputations made in good faith for protection of interests or for public good; and
• good-faith cautions for the benefit of the recipient, another person or the public.

Punishment: Section 356(2) permits simple imprisonment up to two years, fine, both, or community service. Printing/engraving and sale of defamatory matter are dealt with in Sections 356(3) and 356(4).

Exam correction: Indian criminal defamation does not use a simple rule that "written = libel/tort" and "spoken = slander/crime." BNS Section 356 expressly covers spoken words as well as written/visible forms.

A person commits criminal intimidation when, with the required intent, the person threatens another by any means with injury to person, reputation or property-or to the person or reputation of someone in whom the threatened person is interested-to cause alarm or compel/stop an act in the manner specified by Section 351.

Basic punishment: Section 351(2) provides imprisonment up to two years, fine, or both. More serious threats are addressed by Section 351(3).

Section 355 applies where a person, while intoxicated, appears in a public place or a place where entry amounts to trespass and behaves so as to cause annoyance to another person. The provision allows simple imprisonment up to 24 hours, fine up to ₹1,000, both, or community service.

• BNS Chapter III: General Exceptions.
• BNS 14-33: mistake, judicial acts, accident, necessity, infancy, unsoundness, intoxication, consent, compulsion and slight harm.
• BNS 34-44: right of private defence.
• BNS 45-60: abetment.
• BNS 61: criminal conspiracy.
• BNS 62: general attempt provision.
• BNS 303: theft.
• BNS 309: robbery.
• BNS 310: dacoity.
• BNS 316: criminal breach of trust.
• BNS 317: stolen property.
• BNS 318: cheating.
• BNS 351: criminal intimidation.
• BNS 355: drunken misconduct in public.
• BNS 356: defamation.
• BNS 358: repeal and savings of IPC.