A crime is an act or omission that the law forbids under pain of punishment imposed by the State. It is a public wrong: the injury is regarded as done not merely to the individual victim but to the community as a whole, and it is therefore the State that prosecutes, not the victim.
The Bharatiya Nyaya Sanhita 2023 replaced the Indian Penal Code 1860 with effect from 1 July 2024. Section numbers in this note are BNS numbers. The IPC equivalent is noted in parentheses where relevant. Confidence in BNS section numbers is high for Chapter I (S.1 to S.3) as these correspond directly to IPC S.1 to S.4, with minor restructuring.
Definitions
| Source | Definition |
|---|---|
| Blackstone | A crime is an act committed or omitted in violation of a public law either forbidding or commanding it |
| Kenny | Crimes are wrongs whose sanction is punitive and is in no way remissible by any private person, but is remissible by the Crown alone, if remissible at all |
| Halsbury | A crime is an unlawful act or default which is an offence against the public and renders the person guilty of the act or default liable to legal punishment |
| Austin | A wrong which is pursued by the sovereign or his subordinates is a crime; a wrong which is pursued at the discretion of the injured party is a civil injury |
| BNS S.2(24) | "Offence" means a thing made punishable by this Sanhita (with extensions for Chapter III and certain listed sections) |
Why the BNS defines "offence" rather than "crime": The Code is a catalogue of specific acts declared punishable. It does not define "crime" as an abstract concept because that is a matter of jurisprudence, not of positive law. The Code's task is to state what acts are offences and what punishment attaches to each.
Essential Characteristics of a Crime
| Characteristic | Explanation |
|---|---|
| Public wrong | The State prosecutes on behalf of the community, not the individual victim |
| Prohibited by law | Only conduct forbidden by a statute or recognised by law as criminal is punishable (nullum crimen sine lege) |
| Punishable by the State | The sanction is punishment (death, imprisonment, fine, community service) imposed by the State |
| Guilty mind ordinarily required | Mens rea is a general requirement unless the statute dispenses with it |
| Prosecuted by the State | The complainant sets the law in motion, but the prosecution is conducted in the name of the State |
| Standard of proof: beyond reasonable doubt | The prosecution must prove every element of the offence to this standard |
Why Crime is a Public Wrong
The victim of a theft loses his property, but the community loses the security on which all property depends. Punishing the thief serves not only the victim but every person who holds property. This is why the State prosecutes even where the victim forgives, and why compounding of offences requires the court's permission.
The public character of the wrong also explains why the remedy is punishment rather than compensation. Compensation makes the victim whole; punishment vindicates the law and deters. The two are not alternative ways of doing the same thing.
Crime Distinguished from Tort and Other Wrongs
This is developed fully in CRIM-1.8. The key markers at this stage are:
| Basis | Crime | Tort |
|---|---|---|
| Nature | Public wrong | Private (civil) wrong |
| Parties | State v accused | Individual v individual |
| Object | Punishment | Compensation |
| Standard of proof | Beyond reasonable doubt | Preponderance of probability |
| Prosecution | State | Injured party |
| Compromise | Only with court's permission (compoundable offences) | Always open to settlement |
| Intention | Generally required (mens rea) | Liability may be strict |
The Principle of Legality (Nullum Crimen Sine Lege)
No act is a crime unless it is declared so by law before it is done. This is the foundation of criminal law in a constitutional system and is reinforced by:
- Art.20(1) of the Constitution: no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act.
- Art.20(1) also prohibits a penalty greater than that which might have been inflicted under the law in force at the time.
- BNS S.1(3): every person shall be liable to punishment under this Sanhita and not otherwise for every act or omission contrary to its provisions.
Facts: George, a foreign national, carried gold through India in transit, contravening a notification under the Foreign Exchange Regulation Act. He argued he had no knowledge of the notification.
Issue: Whether mens rea is an essential element of a statutory offence, and whether ignorance of law is a defence.
Held: Ignorance of law is no excuse. Mens rea is presumed to be required unless the statute expressly or by necessary implication excludes it. Where the statute creates an absolute or strict liability offence, guilty knowledge need not be proved.
Relevance: The leading Indian authority on the presumption of mens rea and the principle that ignorance of law is no defence.
Classification of Crimes
| Basis | Classification |
|---|---|
| By seriousness | Cognizable / non-cognizable (procedural); bailable / non-bailable |
| By moral content | Mala in se (inherently wrong, e.g. murder) / mala prohibita (wrong only because prohibited, e.g. traffic offences) |
| By punishment | Capital, imprisonment for life, imprisonment, fine, community service |
| By object attacked | Against the person, against property, against the State, against public order, against women and children |
Recall Check
- Why is crime described as a public wrong rather than a private wrong?
- State the principle of legality and identify its constitutional source.
- What is the presumption regarding mens rea in a statutory offence?
Key Cases
State of Maharashtra v MH George (1965) State of Maharashtra v MH George 1965
Issue: Whether mens rea is required for a statutory offence and whether ignorance of law is a defence.
Rule: Mens rea is presumed required unless the statute excludes it. Ignorance of law is no defence.
Held: George was liable despite his ignorance of the notification.
Distinctions
| Basis | Mala in Se | Mala Prohibita |
|---|---|---|
| Nature | Inherently wrong by moral standards | Wrong only because the law prohibits it |
| Examples | Murder, theft, fraud | Driving without a licence, breach of a regulatory statute |
| Mens rea | Always required | May be dispensed with (strict liability) |
| Universality | Recognised across legal systems | Varies with each jurisdiction's statute book |
| Basis | Cognizable Offence | Non-Cognizable Offence |
|---|---|---|
| Police power | May arrest without warrant, may investigate without Magistrate's order | Cannot arrest without warrant, needs Magistrate's order to investigate |
| Seriousness | Generally more serious | Generally less serious |
| First Schedule | Listed in Column 3 as cognizable | Listed in Column 3 as non-cognizable |
| FIR | Mandatory registration under S.173 BNSS | Complaint to Magistrate |
Flashcards
Define crime.
An act or omission forbidden by law under pain of punishment imposed by the State. It is a public wrong prosecuted by the State on behalf of the community.
What is the principle of legality?
Nullum crimen sine lege: no act is a crime unless declared so by a law in force at the time of its commission. Constitutional source: Art.20(1).
What did State of Maharashtra v MH George establish?
Mens rea is presumed to be required for a statutory offence unless the statute expressly or by necessary implication excludes it. Ignorance of law is no defence.
What is the BNS definition of "offence"?
Under S.2(24), "offence" means a thing made punishable by this Sanhita, with extensions for Chapter III and certain listed sections.
Distinguish mala in se from mala prohibita.
Mala in se are acts inherently wrong (murder, theft). Mala prohibita are wrong only because the law forbids them (traffic violations, licensing breaches).
Exam Scenario
Problem: Ramesh, an Indian citizen, commits an act in India that was not an offence when he did it. A month later, Parliament enacts a statute declaring such acts to be offences and prescribing three years' imprisonment. The prosecution charges Ramesh under the new statute. Separately, Sunil, a foreign national, carries prohibited goods through India in transit and claims he did not know Indian law forbade it. Advise both.
Step 1: Test Ramesh's case against Art.20(1)
Art.20(1) provides that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence.
The act was not an offence when Ramesh did it. The new statute cannot be applied retrospectively to create criminal liability for past conduct.
Step 2: Identify the two protections in Art.20(1)
| Protection | Application |
|---|---|
| No conviction for an act not an offence at the time | Ramesh cannot be convicted at all |
| No penalty greater than that in force at the time | Even if the act had been an offence, a heavier penalty enacted later could not be imposed |
The charge against Ramesh must fail.
Step 3: Dispose of Sunil's ignorance defence
Apply State of Maharashtra v MH George (1965). Ignorance of law is no defence in criminal law. Every person present in a jurisdiction is presumed to know its law.
Sunil's foreign nationality does not exempt him. BNS S.1(4) makes any person liable by any law in force in India to be tried for an offence committed beyond India dealt with according to this Sanhita. For an offence committed within India (transit through Indian territory), S.1(3) applies directly.
Step 4: Test whether mens rea is required for the transit offence
The answer depends on the particular statute. If the statute creating the prohibition is silent on mens rea, the presumption is that it is required (MH George). If the statute expressly or by necessary implication creates strict liability, Sunil is liable irrespective of knowledge.
On the facts, the prosecution succeeds if the offence is one of strict liability or if Sunil had the means to know.
Art.20(1) is absolute. It admits no exception. Even a heinous act cannot be prosecuted under a retrospective criminal statute. Distinguish civil statutes, which may be retrospective unless Art.20(1) is engaged.
Ignorance of fact is different from ignorance of law. Under BNS S.14 to S.17, a mistake of fact in good faith may be a general exception. A mistake of law is never an excuse. Sunil pleads ignorance of law, not fact.
Conclusion. Ramesh is acquitted by virtue of Art.20(1). Sunil's ignorance of law is no defence, and his liability turns on whether the statute requires mens rea or imposes strict liability.
See Also
- Stages of Crime : the progression from intention to commission.
- Actus Reus and Mens Rea : the two elements that constitute an offence.
- Distinction between Crime and Tort : the full comparative treatment.