1

Criminology Fundamental of Crime, Criminal Law & Criminal Justice Strict Liability

2

DESCRIPTION OF MODULE

Items Description of Module

Subject Name Criminology

Paper Name Fundamental of Crime, Criminal Justice &

Criminal Law

Module

Name/Title

Strict Liability

Module Id 37

Objectives

The learner will be able to understand the following:

● Meaning of strict liability.

● Justification for strict liability.

● Subject matter of strict liability.

Application of principle of strict liability

Prerequisite Basic understanding of crime

Key words

Strict Liability

Role Name Affiliation Principal Investigator Prof. (Dr.) Ranbir

Singh Vice Chancellor, National Law University, Delhi

Co-Principal Investigator Prof. (Dr.) G.S. Bajpai Registrar, National Law University Delhi

Paper Coordinator Dr. Debdatta Das Assistant Professor of Law, Dept. of Law, Burdwan University

Content Writer/Author Faisal Fasih Assistant Professor, The West Bengal National University of Juridical Sciences

Content Reviewer Dr. Dipa Dube

Associate Professor, Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur

3

INTRODUCTION

The term crime is generally explained by the latin maxim actus non facit reum nisi

mens sit rea. It simply means for imposing criminal liability, prosecution has to prove

concurrence of two elements of an alleged offence: a) actus reus (act or omission

prohibited by the offence in question) and b) mens rea (guilty/criminal/mala fide

intention). This is often referred to as fault-based liability. The objective behind

inclusion of mens rea is to protect a person who has committed an act prohibited by

criminal law by misfortune. However, certain offences do not require mens rea and

mere actus reus is sufficient for conviction. Such offences are called strict liability or

no-fault based liability.1 Consider a hypothetical situation on the point. Mr. Sunil, a

owner of a flour mill, is on the way to his mill in slight hurry and walking down the

crowded street where people are busy in shopping on eve of festival. Mr. Puneet is

strolling in the market and window shopping almost every article displayed outside

the stores. Mr. Sunil being in hurry, steps on the foot of Mr. Puneet, causing severe

pain in the ankle of the latter, but without any mala fide intention. In this scenario,

Mr. Sunil may be exempted from criminal liability at least on two grounds: lack of

mens rea and trifling matters.2 Now, he reaches the mill and comes to know that the

notice has been served to him by the court of law. As per the notice, Mr. Mohan

instituted a case against Mr. Sunil for adulteration in the packet of flour which was

manufactured by the latter’s mill. It is stated in the complaint that after consuming

roti prepared from the alleged packet of flour, Mr. Mohan’s son (Rohan, aged about 5

year) suffered from stomach pain and vomited twice. However, he was cured after

consuming just one tablet. The sample from the packet has been tested in the

laboratory and the report says certain type of harmful powered was mixed with the

flour. This is the first complaint against the products of Sunil’s mill in the forty year

of its functioning. Several other packets of flour manufactured and packed at different

point of time were also examined by the laboratory but there was no trace of any

harmful substance. Every day, around ten thousand packets of flour are sold by the

mill. In defence, Mr. Sunil may argue that since he has received complaint for the first

1 Omerod, David, ed. Smith and Hogan’s Criminal Law. New York: Oxford University Press, 2008. P.

103. 2 Section 95 of IPC

4

time after selling millions of packets, he should be excused on the ground of human

error or genuine mistake and hence absence of guilty intention. This plea may not be

entertained and he may be prosecuted under the essential commodities law even

assuming that the mixing of harmful power was unintentional because in certain

cases, mens rea or mala fide intention is not required to prosecute a person under the

law. Besides, the plea of trifling matter is not a valid defence. Thus, law expects us to

take extra precaution in certain circumstances. Mere lack of intention may not be a

ground of exemption.

1. JUSTIFICATION FOR STRICT LIABILITY

The Common Law presumes the requirement of mens rea except in cases of public

nuisance, outraging public decency, and defamatory libel including blasphemy.3 Mens

rea is also essential ingredient in most of the offences in modern day criminal law.

However, the word ‘mens rea’ is not mentioned in the penal statutes but the import of

mens rea has been provided by some technical words in the definition of offence. For

example, in the Indian Penal Code (IPC), the terms such as intention, knowledge,

reason to believe, voluntarily, dishonestly and fraudulently denote the requirement of

mens rea.

The role of the state was essentially confined to maintenance of peace and order in the

society by punishing the wrongdoer. It is called police state. The police state is more

about protecting from harm or applying power to enforce punitive measures.

However, after the emergence of industrialization and two world wars, apart from

punitive measure, the State is also supposed to perform welfare activities, requiring

proactive action. The transformation of state from police state to welfare state has

played a significant role in the development of strict liability. The State should ensure

equitable distribution of wealth4 and under an obligation to protect life, liberty, health

and sanitation of its citizen.5 One of the adjustments requires for achieving the said

3 Johnson, Eric Alan. “Rethinking the Presumption of Mens Rea.” Wake Forest Law Review 47, no. 4

(2012). http://ssrn.com/abstract=2038958 4 Lala Ram V. Union of India, (2015) 5 SCC 813. 5 Paschim Banga Khet Mazdoor Samity V. State of West Bengal, AIR 1996 SC 2426.

5

goal is by setting higher standard in the criminal statute. Hence, it provides

justification for strict liability in the present capitalist world.6

Scholars argue on utilitarian principle for justifying strict liability. The utilitarian

approach preached for greatest good of the greatest number. The theory assumes that

an individual acts in a rational basis with the primary objective of achieving

happiness. It is generally based on the consequence of an act rather than the act itself.

The happiness of the public at large or greater good should prevail over individual

happiness.7 It can be achieved by occasionally prosecuting an actor who has taken

some care but may be held liable for the bad consequence by applying strict liability,

denying the defence of reasonable mistake of fact or human error. Moreover, strict

liability acts as deterrent for those who are incompetent for certain ventures such as

dealing in essential commodities like food and medicine. It also provides check by

ensuring higher standards for dangerous activities such as dealing in poisoning gases

or chemical.8 Finally, it is argued that strict liability is perhaps the only solution

where it is very difficult to prove mens rea.

There are several criticisms for enforcing strict liability. First, it is against the

principle of criminal law to punish someone who has taken reasonable care. Second,

given that there is a requirement of proving a case beyond reasonable doubt, is it

justified to punish merely because it is difficult to prove mens rea? Third, the

deterrence effect of strict liability is questionable even in essential things because

consumer complaints relating to substandard products and services are increasing by

leaps and bounds. Fourth, it may be create an unfair situation for small businesses.

The case of Pharmaceuticals Society of Great Britain vs. Storkwain Ltd.9 is relevant

on the point. A person presented a forged prescription for purchasing controlled drug.

The chemist attempted to verify the prescription by calling the number given in the

prescription, which was the procedural requirement provided by the regulatory body.

The receiver of the call, who had colluded with the customer, confirmed the

6 See generally Banerji, Eric. “Strict Responsibility” in Essays on the Indian Penal Code, edited by

K.N.C. Pillai and Shabistan Aquil, Delhi: Indian Law Institute, 2005. p 91-112. 7 Cohen, Almagor Raphael. “Ends and Means in J.S. Mill's Utilitarian Theory.” The Anglo-American

Law Review, 26 no. 2 (1997): 141-174. 8 To ensure avoidance of situations like Bhopal Gas tragedy. 9 (1986) 2 All ER 635.

6

genuineness of the prescription and the chemist handed drug to the customer. The

busy chemist was held guilty even though he made an attempt to fulfill the procedural

requirements.

Nevertheless, the parliament has been enacting strict liability laws for fulfilling the

constitutional mandates and bringing actor to the book whenever there is difficulty in

proving mens rea. The Law Commission of India observed that the Indian Penal Code

does not cover all situations of social offenses and proposed special provisions for

dealing with such cases. The Commission emphasized on the offences affecting the

economic conditions of the country which deal with matters relating to tax evasion,

black marketing, adulteration of essential commodities and corruption among other

things.10

2. SUBJECT MATTERS OF STRICT LIABILITY

Since mens rea is presumed for imposing criminal liability, strict liability is the

creation of statute. In other words, unless a statute excludes the requirement of mens

rea expressly or by necessary implication, mens rea is essential for convicting a

person under criminal law.11 At this juncture, it is interesting to note that certain

scholars have argued that strict responsibility is not an offence. For instance, Prof.

Jerome Hall argued that strict liability may be called as economic law or

administrative regulation rather than criminal liability.12 However, offences of strict

liability are recognized by legislation and precedent in the criminal sense.13

10 29th Law Commission Report, 1966 [Santhanam Committee Report] 11State of Maharashtra vs Mayer Hans George, 1965 AIR 722 [The court provides: “Unless the statute

either clearly or by necessary implication rules out mens rea as a constituent part of a crime a defendant

should not be found guilty of an offence against the criminal law unless he has got a guilty mind...”];

State of Gujarat v. D.P. Pandey AIR 1971 SC 866. The Court stated as follows: “The broad principles

accepted by courts in this country [India] as well in England are: Where an offence is created by a

statute, however comprehensive and unqualified the language of the statute, it is usually understood as

silently requiring that the element of mens rea should be imported into the definition of crimes, unless a

contrary intention is expressed or implied. In other words, the plain words of the statute are subject to a

presumption, which may be rebutted, that the general rule of law that no crime can be committed

unless there is mens rea has not been ousted by the particular enactment.” [Paragraph 10]; 12 Hall, Jerome. General Principles of Criminal Law. New York: Bobbs-Merril, 1960. 13 In Sherras vs. De Rutzen (1895) 1 KB 918, the court noted that there are three types of cases which

fall under strict liability: all cases of public nuisance; acts not criminal in real sense but prohibited in

public interest; and civil rights enforced through criminal law. The principle laid down in this case is

followed in several Indian decision such as Union of India vs. M/s Ganesh (AIR 2000 SC 1102) [The

court recognized the exceptions of mens rea liability].

7

Crime may be classified into mala in se and mala prohibitum. Mala is se or truly

criminal acts are those which are inherently wrong or evil in itself whereas; mala

prohibitum offences may not be inherently wrong but are enforced through statute for

the betterment of society. Although there is no clear demarcation between two

categories, but mala prohibitum offences are generally regulatory in nature, 14 and

mostly strictly held liability. The demarcation between offences requiring mens rea

and strict liability offences is not an easy task. There are several borderline cases.

Some of the important considerations in this regard are: First, the objective of the

statute in question is perhaps the most important factor. Strict liability is imposed if

the object of the law cannot be achieved by reading mens rea into the provision.

Second, the quantum of social danger is relevant. The greater the degree of social

danger, the greater chances for construing strict liability. The Bhopal Gas tragedy15

cannot be taken at par with tragedy in normal mill. Third, the judiciary interprets

cases in the light of contemporary situation. For example, prior to demonetization of

certain currencies in India, the government gave opportunity to people for disclosing

black money for granting certain exemptions from tax. In this backdrop, the

interpretation in corruption matter relating to black money, tax evasion etc. would be

very strict. Fourth, strict interpretation is the settled rule in certain cases under social

welfare legislations. Fifth, strict liability may be enforced in cases where it is difficult

to prove mens rea.16 Finally, if the provision doesn’t provide the import of mens rea

expressly and the court is not in position to take concrete call on acquittal or

conviction, balancing is done at the stage of sentencing policy. The court may award

lenient punishment or just impose compensation or fine.17

14 See E.g; Sweet vs. Parsley [1969] 2 WLR 470 [A teacher rented her house. The tenants were caught

smoking cannabis within the premises, which was not permitted by law. The teacher was found guilty

by the trial court for the violation of the provisions of Dangerous Drugs Act, 1965 for mismanagement

of the premises. The teacher appealed on the ground for lack of knowledge about the activities of

tenants and argued that it was not foreseeable for her to anticipate such activities. The court attempted

to differentiate true crime with regulatory offence without any proper categorization and acknowledged

that strict liability was appropriate for regulatory offence. The court added that generally mens rea is

essential for offence to which real stigma is attached. The court considered the instant case as ‘true

crime’ and accused was not held liable by the appellate court for lack of mens rea on the ground that

the stigma would caused her to lose job]. 15 1989 SCC (2) 540 16 Supra note 6 17 UOI vs. Prabhakaran Vijaya Kumar (2008) 9 SCC 527; Jameela & Ors. vs. UOI, (2010) 12 SCC 443

[Both the cases were decided u/s 124-A the Railways Act, 1989. The court noted that the Act provides

8

Most of the cases of strict liability directly affect public welfare.18 There is a serious

overlapping in compartmentalizing offences into different heads. Some of the

common popular themes may be classified into the following categories:

2.1 Regulatory Offences

Several regulatory offences are created by enacting special laws. It is often a mode of

enforcing civil right through criminal law. For example, the Motor Vehicle Act, 1988

punishes certain acts such as rash driving and use of mobile phone while driving.19

The driver will be held liable even if he is in hurry to reach somewhere for protecting

interest of someone or attends an urgent call in his mobile phone while driving

without any actually having mala fide intention to endanger life and safety of others.

2.2 Socio-Economic Offences

Generally, socio-economic offences are those which affect the social and economic

conditions of the country and overall public welfare. The most important topic in this

regard is white collar crimes. In fact, socio-economic offences are often considered

from the angle of white collar crimes.20 White collar crimes are those which are

committed by person holding respectable position in employment. It is considered

very serious and often offenders are punished even without mens rea.21

Moreover, offenders are strictly liable in cases of essential commodities. In State of

Orissa vs. Rajeshwar Rao,22 the Supreme Court of India has stated about the

for strict liability on the railways in case of railway accident]. See also Sarla vs. UOI, 2016 SCC

Online Del. 5501. 18 Sayre, Francis Bowes. “Public Welfare Offences.” Columbia Law Review 33, no. 1 (1933): 55-88.

[In his celebrated paper, he outlined the public welfare offences – “Illegal sales of intoxicating liquor;

Sales of impure or adulterated food or drugs: Sales of misbranded articles; Violations of anti-narcotic

acts; Criminal nuisance; Violations of traffic regulations; Violations of motor-vehicle laws; Violations

of general police regulations, passed for the safety or well-being of the community”]. 19 Section 177 20 Supra note 10 21 Sutherland, Edwin. “White-Collar Criminality.” American Sociological Review 5, no. 1 (1940): 1-

12 22 AIR 1992 SC 240 [The accused sold adulterated cumin, which was in contravention of Sec. 7 of the

Prevention of Food Adulteration Act, 1954 but the trial court and the High Court acquitted him on the

ground that his father was the owner of the shop. The Supreme Court set aside the order of acquittal

and convicted him on the ground of strict liability] Compare with Nathulal vs. State of M.P., AIR 1966

SC 43 [The accused was charged for storing food grain without possessing valid license for the same.

He applied for the license and believed that it would be issued to him but the application was rejected.

However, the authority rejected the application without providing him opportunity for hearing.

Besides, the authority did not intimate the rejection. Acting on the belief that the license would be

9

Prevention of Food Adulteration Act, 1954 in the following words: “the Act is a

welfare legislation to prevent health hazards by consuming adulterated food. The

mens rea is not an essential ingredient. It is a social evil and the Act prohibits

commission of the offences under the Act. The essential ingredient is sale to the

purchaser by the vendor. It is not material to establish the capacity of the person vis-a-

vis the owner of the shop to prove his authority to sell the adulterated food exposed

for sale in the shop. It is enough for the prosecution to establish that the person who

sold the adulterated article of food had sold it to the purchaser (including the Food

Inspector) and that Food Inspector purchased the same in strict compliance with the

provisions of the Act. As stated earlier the sanctioning authority has to consider the

material place before it whether the offence of adulteration of food was committed

and punishable under the Act. Once that satisfaction is reached and the authority is

competent to grant the sanction, the sanction is valid. It is not necessary for the

sanctioning authority to consider that the person sold is the owner, servant, agent or

partner or relative of the owner or was duly authorised in this behalf”.

Smuggling is another notorious subject matter in this regard. In M.H. George vs. State

of Maharashtra,23 the German National was charged under the Foreign Exchange

Regulation Act, 1947 [FERA] read with the notification of the RBI and the Customs

Act for carrying gold in the Bombay airport. He was travelling from Zurich to Manila

but the plane arrived in Bombay. One of the arguments of the defence was that mens

rea was essential ingredient of an offence. The court noted the Common Law

presumption of mens rea but mentioned that the presumption may be displaced by the

words of the Statute. The accused was held liable. The court emphasized that the

objective of FERA was to conserve foreign exchange, which was essential for the

economic survival and the advancement of the country. The courts have been

following strict approach in cases relating to socio-economic offences.24

issued, he was purchasing food items from time to time and sending returns to the authority disclosing

his purchase. The Supreme Court gave the benefit to the accused by setting aside the order of

conviction passed by the High Court and acquitted him]. Sarjoo Prasad vs. State of U. P. (1961) 3 SCR

324 [The employer was held liable for the sale of adulterated food by the servant under the Prevention

of Food Adulteration Act, 1954]. 23 Supra note 11. 24 See E.g; State of Maharashtra vs. Md. Yakub & Ors, AIR 1980 SC 1111 [The accused was trying to

export silver out of the country in contravention of FERA & Imports and Exports (Control) Act, 1947.

10

2.3 Public Nuisance

Generally, nuisance is an act or omission which causes some kind of annoyance or

inconvenience. It may be public or private. The former is the subject matter of crime

as it causes inconvenience to public at large but the latter is a ground for civil law and

is generally punishable under the law of torts because the target is an individual or

certain group of individuals. For example, if a person throws garbage near the door of

his neighbour, civil action may lie. But, criminal jurisdiction may be triggered if the

same garbage is dumped in public place. In certain situations, civil as well as criminal

action may arise out of same case. For example, if a person digs a manhole in the

public place and another person fall into it. Action may be taken by the victim in civil

law and criminal case may also be filed by any interested member of the society.

Section 268 of the IPC doesn’t require mens rea for punishing acts amounting to

public nuisance.25 The term public “includes any class of the public or any

community”.26 The cases decided under IPC arose out of legal activities such as

lawful trading27 as well as illegal activities such as smoking in public place28.

The Central Excise officers chased the vehicles of the accused in the National Highway till it halted

near a bridge. The accused removed certain bundles of silver and placed them on the ground. At this

moment, seized the articles and heard the sound of engine of sea-craft. The defence argued that the act

would only qualify for preparation to commit an offence as there was no direct movement towards the

commission. The court had to decide whether the accused attempted to export silver in violation of the

law beyond reasonable doubt. The court noted the economic effects of such activities in deciding the

case against the accused. The court held “it is important to bear in mind that the penal provisions with

which we are concerned have been enacted to suppress the evil of smuggling precious metal out of

India. Smuggling is an antisocial activity which adversely affects the public revenues, the earning of

foreign exchange, the financial stability and the economy of the country. A narrow interpretation of the

word attempt therefore, in these penal provisions which will impair their efficacy as instruments for

combating this baneful activity has to be eschewed. These provisions should be construed in a manner

which would suppress the mischief, promote their object, prevent then subtle evasion and foil their

artful circumvention”]. 25 “A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which

causes any common injury, danger or annoyance to the public or to the people in general who dwell or

occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or

annoyance to persons who may have occasion to use any public right. A common nuisance is not

excused on the ground that it causes some convenience or advantage” [Section 268 of IPC]. 26 Section 12 of IPC. 27 See E.g; Gobind Singh vs. Shanti Sarup, AIR 1979 SC 143 [The smoke emitted from the chimney

was carried by a strong wind, causing a conflagration was considered as injurious to the health of

people] 28 K. Ramakrishnan vs. State of Kerela, AIR 1999 Ker, 385 [The court held that smoking in public

place makes the non-smoker passive smokers, thereby causing public nuisance].

11

2.4 Offence against Vulnerable Group

Strict liability may be applied in offences caused against vulnerable classes such as

women, children, disabled, scheduled caste and scheduled tribe. For example, mens

rea is not required in offence of kidnapping,29 certain offences related to human

trafficking30 and atrocities to name a few31.

2.5 Offence against State

There are several offences against the security and integrity of the nation where mens

rea is not essential element for convicting the offender.32 It includes waging war

against the state,33 offences relating to official secrets34 and unlawful activities.35

2.6 Labour Welfare Legislations

Strict liability may be imposed for protecting the rights of the working class. For

example, under the Factory Act 1948, the occupier may be strictly held liable.36 In J.

K. Industries Ltd. vs. Chief Inspector of Factories and Boilers,37 the Supreme Court

observed “The offences under the Act are not a part of general penal law but arise

from the breach of a duty provided in a special beneficial social defence legislation,

which creates absolute or strict liability without proof of any mens rea. The offences

are strict statutory offences for which establishment of mens rea is not an essential

ingredient. The omission or commission of the statutory breach is itself the offence.

Similar type of offences based on the principle of strict liability, which means liability

without fault or mensrea, exist[s] in many statutes relating to economic crimes as well

as in laws concerning the industry, food adulteration, prevention of pollution etc…”

Besides, a person may be held responsible without mens rea for acts which obstruct

the administration of justice,38 degrading the environment39 and offences relating to

29 Section 359-369 of IPC. 30 See the Immoral Traffic (Prevention) Act, 1956; Section 370 & 370A of IPC. 31 See the Prevention of Atrocities Act 1989. 32 See generally 43rd Law Commission Report on Offences against the National Security (1971). 33 Section 121, 121A, 122 & 123 of IPC 34 The Official Secrets Act, 1923 35 The Unlawful Activities (Prevention) Act, 1967 36 Section 92. 37 (1996) 6 SCC 665; [The findings of this case is approved in the recent decision of Hemant

Madhusudan Nerurkar vs. State of Jharkhand, (2016) 6 SCC 504]. 38 See E.g; The Contempt of Court Act 1971

12

decency and morality.40 The above list is not comprehensive but it covers most of the

subject matter of strict liability in India.

SUMMARY

The general principle is to punish a person for criminal liability if he intended to

commit an act in contravention of criminal law, and at least attempted to execute his

mental design.41 However, in certain cases, liability is strictly imposed in public

interest. This approach is not free from limitations. However, the recent trend is to

enact special law on particular subject where strict liability is enforced. It is very

difficult to separate various strict liability offences into water tight compartment

under different heads. In certain cases, it is easier for the court to punish without mens

rea but there are several borderline cases, where inconsistencies are evident in

decisions of courts. The objective of the law in question is the most important aspect

which court considers for applying strict liability.

39 M. C. Mehta vs. UOI, (1988) 1 SCC 471; Indian Council of Enviro-Legal Action vs. UOI, AIR 1996

SC 1446. 40 Section 292 of IPC; Ranjit Udeshi vs. State of Maharashtra, AIR 1965 SC 881 [The court found

content of the book titled “Lady Chatterley’s Lover” obscene. The accused, a bookseller, argued that he

was not aware of the content of book and hence didn’t have mens rea. The court convicted him u/s 292

of the IPC by pointing out that there is no import of mens rea in the provision. 41 In few cases, mere preparation is punishable such as waging war against the state, preparation to

commit robbery and possession crimes such as those relating to counterfeit currency.