The fundamental principle of Anglo-Saxon law is that even if thousands of guilty people escape, no innocent person should be punished. The insistence on the “proof beyond reasonable doubt” is the fall out of this principle. It is for this reason the proof of motive is insisted upon. However in this era of codified/defined offences, in the face of direct evidence, many a time motive takes back seat and convictions are made even if the prosecution is not able to prove the motive. See:
It is an admitted fact that Abdulas (A-2) caused spear blow in the vital part of Nisar Ahmad, which resulted in his instantaneous death. The nature of the injury caused by the weapon used on the vital part of the body, be it noted against an unarmed person negates any just plea for right to self defence. Here we have to point out that it is very well established by a catena of cases of this Court that when the occurrence was spoken to by eye-witness and the same was supported by Medical Report, it will not be necessary to investigate the motive behind such commission of offence. In other words, where a murderous assault has been established by clear ocular evidence, motive pales into insignificance as rightly found by the High Court. [(Baitullah vs State Of U.P, AIR 1997 SC 3946, 1997 (2) ALD Cri 666, 1997 (3) CTC 223 (on 17 October, 1997)]
In yet another case of clear direct evidence it was observed:
The evidence in the present case is so clear to show that these four persons committed the murder of the eight boys that we think it unnecessary to speculate about the motive which induced them to murder the eight boys who had done no harm. Whether it was sadistic pleasure or the fear of discovery of robbory, or anything else, the fact remains proved by overwhelming evidence that these four did actually commit the murder of the eight innocent boys. [Nand Kumar & Others vs State Of Rajasthan on 3 May, 1962]
In another case of Delhi High court refused to convict the accused, without any proof of motive, where the ocular evidence or the version of eyewitnesses was contradictory inter se as well as with medical evidence. (See Parmersh Kumar vs. State Crl. Appeal No 52 of 1993 decided on 06.03.2009followed in Jawahar vs. State, Crl Appeal No. 338 of 1997)
It appears that in case of circumstantial evidence insistence of proof is invariable rule and absence of proof of motive is rare exception.
Some More material: Tarseem Kumar versus Delhi Administration (1994 (Suppl. 3) SCC 367), Jamna and Others versus State of U.P. (1994 (Suppl. 1) SCC 185) and Kuriakose and Another versus State of Kerala (1994 (Suppl. 1) SCC 602).
Bonafide claim as defence
Ordinary rule that mens rea may exist even with an honest ignorance of law is sometimes not sufficient for theft. A claim of right in good faith, if reasonable, saves the act of taking from being theft and where such a plea is raised by the accused it is mainly a question of fact whether such belief exists or not. A bona fide claim of right exists, it can be a good defence to a prosecution for theft. An act does not amount to theft, unless there be not only no legal right but no appearance or colour of a legal right. By the expression “colour of a legal right” is meant not a false pretence but a fair pretence, not a complete absence of claim but a bona fide claim, however weak. (See Chandi Kumar Das Karmarkar v. Abanidhar Roy, 1965(1) CrLJ 496: AIR 1965 SC 585: 1964 All LJ 66: 1964 (1) Ker LR 123: 1964 MadLJ (Cri) 238)
The word harbours used in TADA must be understood in its ordinary meaning as for penal provisions. It is therefore reasonable to attribute a mental element (such as knowledge that the harboured person was involved in a terrorist act) as indispensable to make it a penal act. That apart, there is nothing in the Act, either expressly or even by implication, to indicate that means rea has been excluded from the offence
A juristic entity which could not have mens rea cannot be prosecuted and convicted. There is no question of company to have had the mens rea even if any terrorist was allowed to occupy the rooms in the Hotel The company is not a natural person. In many recent penal statutes, companies or corporations are deemed to be offenders on the strength of the acts committed by persons responsible for the management or affairs of such company or corporations e.g. Essential Commodities Act, Prevention of Food Adulteration Act etc. But there is no such provision in TADA which makes the company liable for the acts of its officers. (See Kalpnath Rai v. State (through CBI), 1998 CrLJ 369: AIR 1998 SC 201 : 1998 SCC (Cr) 134 : 1998 CAR 33 : 1997(4) Crimes 227 : 1997(4) Rec CrR 788)
“Mens-rea” is a state of mind. Under the criminal law, means-rea is considered as the “guilty intention” and unless it is found that the “accused” had the guilty intention to commit the “crime” he cannot be held “guilty” of committing the crime. An “offence’ under Criminal procedure Code and the General clauses Act, 1897 is defined as any act or omission “made punishable by any law for the time being in force”. The proceedings Under Section 23(1)(a) FERA, 1947 are “adjudicator” in nature and character and are not “criminal proceedings’. The officers of the Enforcement Directorate and other administrative authorities are expressly empowered by the Act to “adjudicate’ only. Indeed they, have to act “judicially” and follow the rules of natural justice to the extent applicable but, they are not “Judges’ of the “Criminal Courts” trying an “accused’ for commission of an offence, as understood in the general context. They perform quasi-judicial functions and do not act as “Courts” but only as “administrators’ and “adjudicators’. In the proceedings before them, they do not try “an accused” for commission of “any crime” (not merely an offence) but determine the liability of the contravenor for the breach of his “obligations” imposed under the Act. They impose “penalty’ for the breach of the “civil obligations’ laid down under the Act and not impose any “sentence” for the commission of an offence. The expression “penalty’ is a word of wide significance. Sometime, it means recovery of an amount as a penal measure even in civil proceedings. An exaction which is not compensatory in character is also termed as a “penalty’. When penalty is imposed by an adjudicating officer, it is done so in “adjudicator proceedings’ and not by way of fine as a result of “prosecution” of an “accused’ for commission of an “offence” in a criminal Court. Therefore, merely because “penalty’ clause exists in Section 23(1)(a), the nature of the proceedings under that Section is not changed from “adjudicator’ to “criminal’ prosecution. An order made by an adjudicating authority under the Act is not that of conviction but of determination of the breach of the civil obligation by the offender.
It is thus the breach of a “civil obligation” which attracts “penalty” Under Section 23(1)(a) FHRA, 1947 and a finding that the delinquent has contravened the provisions of Section 10 FERA, 1947 would immediately attract the levy of “penalty’ Under Section 23, irrespective of the fact whether the contravention was made by the defaulter with any “guilty intention” or not. Therefore, unlike in a criminal case, where it is essential for the “prosecution” to establish that the “accused” had the necessary guilty intention or in other words the requisite “mens-rea’ to commit the alleged offence with which he is charged before recording his conviction, the obligation on the part of the Directorate of Enforcement, in cases of contravention of the provisions of Section 10 of FERA, would be discharged where it is shown that the “blameworthy conduct” of the delinquent had been established by wilful contravention by him of the provisions of Section 10, FERA, 1947. It is the delinquency of the defaulter itself which establishes his “blameworthy” conduct, attracting the provisions of Section 23(1)(a) of FERA, 1947 without any further proof of the existence of “mens-rea”.(See Director of Enforcement v. MCTM Corporation Pvt. Ltd., 1996 CrLJ 1623: AIR 1996 SC 1100: 1996 SCC (Cr) 344)
Note: The above provision is an example of principle of strict liability.
Mens rea or ‘Guilty Mind’ is an essential ingredient of a criminal offence.
Doubtless a statute may exclude the element of mens rea, but it is a sound rule of construction adopted in England and also accepted in India to construe a statutory provision creating an offence in conformity with the common law rather than against it unless the statute expressly or by necessary implication excluded mens rea. The mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil is by itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of an offence. Mens rea by necessary implication may be excluded from a statute only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated. The nature of the mens rea that would be implied in a statute creating an offence depends on the object of the Act and the provisions thereof.
Having regard to the object of the Essential Commodities Act, namely, to control in general public interest, among others, trade in certain commodities, it cannot be said that the object of the Act would be defeated if mens rea is read as an ingredient of the offence. The provisions of the Act do not lead to any such exclusion. Indeed, it could not have been the intention of the Legislature to impose heavy penalties like imprisonment for a period upto 3 years and to impose heavy fines on an innocent person who carries on business in an honest belief that he is doing the business in terms of the law. Having regard to the scope of the Act it would be legitimate to hold that a person commits an offence under Section 7 of the Act if he intentionally contravenes any order made under Section 3 of the Act. So construed the object of the Act will be best served and innocent persons will also be protected from harassment. (See Nathulal v. State of Madhya Pradesh, 1966 CrLJ 71 : AIR 1966 SC 43 : 1965 Mah LJ 783 : 1965 MPLJ 832 : 1966 Mad LJ (Cri) 679)