When a person has committed a wrong, they will be liable for their actions. In the words of Sir John Salmond, liability is a bond of necessity that exists between the wrongdoer and the remedy for the wrong. The law dictates asto under what circumstances and consequences an act shall be punishable by law or the person committing the act shall be under penal liability.
The idea of punishment is relevant and operative to both criminal and civil laws. Its main motive is the protection of society. Protection of society can be achieved by deterrence, prevention, and reformation. Deterrence is considered the primary function of punishment. The inquiry of punishment as deterrent will fall into three divisions, which are relating to the condition, to the incidence, and the measure of penal liability.
Liability can be classified into penal and remedial liability. The general conditions of a penal liability are indicated in the legal maxim, ‘Actus non facit reum, Nisi mens sit rea’ which means that the act does not become wrongful unless it is followed by a guilty mind. It mentions the co-existence of two conditions, which can justify penal liability. The first condition being Actus reus, meaning the guilty act, as Salmond calls, is the physical and material condition. Actus Reus can be a Positive, Negative, Voluntary, Involuntary, Internal or External Act. The origin of the act, its circumstances and its consequences are also taken into consideration. A person is only to be accounted for, what they do and not for others’ actions or events independent of human activity. However blameworthy a person’s intentions may be, they are not punished by the law, unless they act on it.
If A takes an umbrella from a public stand with the intention of stealing it but finds it as his own, no guilt attaches to him legally.
The second condition is mens rea or guilty mind with which the act is done. According to Salmond, this is the formal condition of liability. It is not enough that a person has done some act that is prohibited by law, but before the law can punish the act in a justified manner, an inquiry is made into the mind of the wrongdoer. It is not the act alone, but the guilty mind going with the act, which constitutes a crime that results in penal liability.
The act is judged not from the mind of the wrongdoer, but the mind of the wrongdoer is judged from the act.
The act is only considered as deserving of punishment if they are done intentionally or negligently. Intention and Negligence are alternate forms in which mens rea may exhibit itself.
The character of the offender is also one of the factors taken into consideration by the Court while deciding the nature and volume of the punishment. In the case of habitual offenders, reformative measures such as Probation, Parole, etc hardly serve any useful purpose. Therefore, deterrent punishment can only be adequate in such cases. Whereas first time offenders, juveniles, and people who have committed an offence under compelling circumstances may be dealt comparatively with lenience. In proving the wrongdoings of the accused, the law does not consider his past character, but evidence. However, once his guilt is proved in the Court, the law then considers his past character in measuring his criminal liability and punishment.
In India, the maximum punishment for different offences has been laid down in the Indian penal code, 1860 and it is left to the judicial disposition of the magistrate to decide the quantum of punishment keeping in view the motive of the offender, his character, the gravity of the offence and all other mixed factors.
Under Section 194 of the IPC, it is stated that “Whoever gives or fabricates false evidence, intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of an offence which is capital by the law for the time being in force in shall be punished with 1. imprisonment for life, or with 2. rigorous imprisonment for a term which may extend to ten years, and 3. shall also be liable to fine; if an innocent person is thereby convicted and executed.
The amount of fine is not mentioned in the Section, and it is left to the judgement of the Court. The judge can use his foresight in determining the punishment. The law imposes severe penalties and punishments depending upon the seriousness of the offence. It imposes lesser punishment if the crime is a petty offence and comparatively severe punishments for the heinous offences.
A, a thief enters into a house with an intention to steal valuable items assuming that there will be no people in the house, B watches the theft takes place in his house and tries to call the police. While doing so A notices B and hits him with a rod which results in his death. If A only committed theft (Section 378 IPC) without culpable homicide (section 304 IPC), the law would have imposed comparatively lesser punishment on him.
Though intention and negligence are regarded as the two alternative formal conditions of liability, sometimes the law considers another state of mind to determine a crime called motive. Intention or negligence is a necessary condition to the existence of the case or situation which proves guilt. The general rule is that punishment is justified only when the offender renders a state of mind that displays punishment as effective. But this deduction is subject to two qualifications. First, the criminal law may include provisions penalizing mere negligence, even though this may result simply from heedlessness. Secondly, the law may create offences of strict liability, where guilt may exist without intention, recklessness, or even negligence. Hence inevitable accident or mistake in the absence of both wrongful intention or recklessness and negligence, is, in general, a sufficient ground for exemption from penal responsibility There are, however, certain wrongs known as wrongs of absolute liability when the law, without looking for mens rea imposes liability as soon as the physical or mental conditions are satisfied.
Author: Neha S Menon,
ICFAI Law School, 3rd Year