“Every crime violates the law but every violation of the law does not commit a crime”
An unlawful act which is punishable by the State or any such authority is crime. A crime is an offence which is harmful against the State, society and not just to the individual. Such acts are prohibited and punishable by the State.
Crime is an act of our own will and choice. The person must be conscious and voluntarily choose to perform such act for which he is criminally held liable. The voluntary act not fully from will are committed with extreme indifference to inhuman life. A person who consciously loads the gun against a person and accidentally discharges is liable for any harm caused as loading the gun is voluntary.
The main reason for committing a crime are jealousy, pride, anger, revenge and greed. The condition of mind is an essential element of crime. The person can’t be liable if there’s no proper state of mind. Mens rea, actus reus, concurrence of mens rea and actus reus, act, harm, legal in nature and punishment are the elements of crime.[1]
Examination of the terms of the relevant provisions of the criminal code or statutory provisions are required to determine the conduct constituting a crime.
Principles of Criminal Law
There are several general principles of criminal law despite differences of form and detail. They are –
Rule against retroactivity–
The principle prohibits imposition of laws (ex post facto) that would punish an individual for conduct that was not crime at the time it was carried out. The authority of judges is restricted from declaring new offenses.
Normally an individual without having intended to commit the act in question cannot be convicted of a crime. There is exception that ignorance of the law is no excuse for criminal behavior. If a person performs that act intentionally believing that an act is legal, there is no legal requirement of criminal intention.
Mental impairment may be considered at the time of sentencing as a mitigating factor that reduces the punishment associated with the crime though most types of mental disorder do not affect criminal intention.
For offenses of strict liability, there is no requirement of intention or is allowed only a limited scope.
It applies to those who aid and abet a perpetrator by encouraging or in any way knowingly helping in the commission of such an act along with to those who perform criminal acts. Those who perform the criminal act are principals in the first degree; those who assist at the time of the commission of the offense are principals in the second degree; and those who assist before the crime takes place are accessories before the fact. Usually, everyone are liable to the same punishment as the law considers all equally responsible. [2]
Mens rea –
To decide culpability an act mens rea is an essential part. Specific intent for the commission of the crime by the accused for which he is charged is determined by mens rea. Malafide intention toward the victim and knowingly committing the crime with full knowledge of their actions is a must-have for the accused. For a civil liability to arise the Actus Reus takes precedence in cases, but the defendant must have been aware of the repercussions of their actions.
Actus reus –
The physical aspect of a crime is the actus reus. The accused must result in injury to the plaintiff or the victim by doing or omitting to do something. There can be no crime without a guilty act and no suit for damages can arise. Both the intention of the person and the act itself, and if such act is prohibited, combine to form the crime. In certain cases, to either conclusively prove guilt, or can be used to prove reasonable doubt of intention, the circumstances of the case are also taken into consideration.[3]
Innocent until proven guilty –
This is the basis of criminal justice. A person considered innocent until proved guilty of the offence though charged with an offence. The judgeor magistrate, as the case may be, must be satisfied beyond a reasonable doubt that the person is guilty. The person must be acquitted if there is a reasonable doubt.
It must be clear that at any discussion of the charge the offence is only alleged. The fact that a person has been charged does not mean that he is guilty.
Burden of proof –
The guilt of the person who is charged with an offence must be proved by the prosecution. It must be proved beyond reasonable doubt for the defendant to be found guilty of an offence. Defendant doesn’t have to establish his innocence.
Except where defendant has to give evidence of a certain point in the defense case, this rule applies in all criminal trials.
The burden of proof of a defense such as insanity may be on the defendant. The defense need not be proved beyond a reasonable doubt as the prosecution but only be proved on the balance of probabilities.
Right to remain silent –
Except for some exceptions, the person is not required to answer police questions. However, that a police officer can request the name and address of a person found committing an offence, or who the police officer with reasonable cause suspect is of a person who are able to help in the investigation of suspected offence or an offence or about to commit, or has committed an offence.
It’s an offence for a person who gives a false name and address, or who refuses to give his name and address. Owner of the car, are also required to give their name and address as well as some questions in relations to firearms along with drivers of motor vehicles.
Double jeopardy –
No person for the same offence should be punished more than once and that no person should be placed twice in jeopardy of being convicted. A person who has been acquitted after being charged and tried cannot be charged again for the same matter. However, often a new trial is ordered an appeal court overturns a conviction or where the first trial resulted in a hung jury or a mistrial.
Double jeopardy no longer applies for serious offences such as aggravated rape, manslaughter and murder, provided certain circumstances are met.
A person can be re-tried for an offence for which they have previously been acquitted in two situations which are:
● The fresh and compelling evidence that is substantial and reliable not provided at the original trial is produced; or
● Where the acquittal is a ‘tainted acquittal’. Occurs where a person was not convicted of an offence committed because an administration of justice offence (offences of bribery, attempting to pervert the course of justice, perjury, concealment or fabrication of evidence or juror or witnessintimidation). Charges can be laid against the acquitted person if it is more likely that they would have been convicted for the administration of justice offence.[4]
Theories of Punishment
There are majorly four theories of punishment considered for conception of crime. They are–
Retributive theory:
the most ancient form of punishmentbased on the ideals of revenge or retribution. The punishment should be in equal proportional to the harm caused by the wrongful act.Punishment is considered as an end itself. This theory signifies that no person shall be arrested only if that person has broken the law.
The conditions where a person is considered as an offender are:
● The penalty given will be in equal proportion to the harm caused by the person.
● Performed certain crime of culpability.
● That similar persons for similar offenses have been imposed.
● He was only responsible for the action performed was by him for which he had full knowledge of possible consequences and the penalty.
This theory is condemned in modern times as it disturbs the peace of the society and is based only on vengeance.
Deterrent theory:
Bentham, the founder of this theory believed that it will deter the others from committing a similar offence if punishment is given to one offender. Sense of fear amongst others when the punishment inflicted on one. Such kind of crimes are prevented from being committed. The theory is based on hedonistic concepts and supports strict punishments.
Bentham believed that unpunished crimes create the path for the person having such an evil motive to repeat the same offence again but also leave the path open for the offender.
This theory can be divided further into specific deterrence and general deterrence.
In specific deterrence, punishment is designed to educate the criminals. This is done by a fear of the punishment.
General deterrence is designed to avoid future crime. So, this is done by an example of defendant. Thus, the citizens are frightened to do what the defendant did.
Preventive theory:
rather than taking revenge, prevent the crime. The theory believes that society is protected as it prevents him from committing future crimes when an offender is given punishment.
This theory prevents the further commission of a crime by making the attempt to an offence also punishable. For example, X is imprisoned as he will not be able to do the same with others. Society must be protected from criminals is the notion of the theory giving importance. Defense and solidarity are punished.
A different view is looked by the modern criminologists. They realized that the society must be free from economic and social forces. Attention must be given to individuals who show anti-social behavior. Biological and psychological handicaps is the reason.
Reformative theory:
rather than punishing him, it focuses on reforming the offender therefore the most humane theory. Rehabilitating the offender to the law-abiding citizen of the society is the aim. This theory is supported by modern penology and criminology. By awarding rigorous punishment it helps the offender to reform himself so that he does not commit the offence again as he realizes his mistake.[5][6]
Difference between Crime and Tort –
Crime –
● A wrongdoing hampering the social order of the society.
● Crime happens mostly voluntary. It is an intentional act which people do for some unlawful benefits.
● Well-being of society in general is impacted. The legal bodies try to maintain peace in society by giving proportional punishment to law offenders.
● Crimes are pleaded in the Criminal Court.
● Statutes mentions the compensation for crimes. The court has to decide the amount of compensation by referring to the statutes. In certain cases, judges use their discretions.
● Proceeding between the state and the offender.
Tort –
● A wrongdoing hampering the individual or his property.
● Tort happens mostly due to negligence. It is hardly intentional but still damaging to the individual.
● The well-being of the individual is impacted. Compensation for the damages is asked by the aggrieved party.
● Torts are tried in the Civil Court.
● The damages to the aggrieved party are the basis for compensation for torts.
Proceeding between the aggrieved person and offender.[7]
[1] Tanya Gupta, Elements Constituting A Crime, ipleaders (Jun. 11, 2022, 7:45 PM), https://blog.ipleaders.in/constituent-elements-of-a-crime/ [2] Ian David Edge, crime, Britannica (Jun. 11, 2022, 7:52 PM), https://www.britannica.com/topic/crime-law [3] Maanas Tumuluri, Mens Rea And Actus Reus – Essentials Of A Crime, ipleaders (Jun. 11, 2022, 8:00 PM) Mens Rea And Actus Reus - Essentials Of A Crime - iPleaders [4] Legal Services Commission South Australia, https://lawhandbook.sa.gov.au/ch12s02.php (last visited Jun. 11, 2022) [5] Harshita Gulati, Learn Meaning of Crime Under Indian Penal Code, lawctopus (Jun. 11, 2022, 8:00 PM), https://lawctopus.com/clatalogue/crime-under-ipc/#:~:text=Crime%20means%20wrongs%20done%20by,rea%20and%20actus%20reus%20concurrently. [6] Toppr, https://www.toppr.com/guides/legal-aptitude/indian-penal-code/theories-and-kinds-of-punishment/ (last visited Jun. 11, 2022) [7] toppr, https://www.toppr.com/guides/legal-aptitude/indian-penal-code/difference-between-crime-and-tort/ (last visited Jun. 11, 2022)
This article is written by Harsha Chandrashekar of PES UNIVERSITY.