GUMAN MAL LODHA, J. - (1.) THE maxim, 'actus non facit reum nisi mens sit rea', under the Indian Penal Code has ruled criminal law for century in common law. According to Shri M. C. Setalvad, "by specifying the varying guilty intention for each offence the Code has in effect built the maxim into each of the definitions and given it statutory effect. Where the Code omits to indicate a particular guilty intent, the presumption, having regard to the general frame of the definitions, would be that the omission must be intentional" (1 ). THE case-law on this point is, however not uniform as per the study of the Indian Law Institute (2 ).
(2.) THEIR Lordships of the Supreme Court in Ranjit D. Udeshi Vs. State of Maharashtra (3) while considering a case of S. 292, IPC, has discussed the above maxim making a slogan for salary any obscene object as an offence. Paras 10, 11 and 12 of the above decision deserve reproduction for ready reference and guidance: " In prosecution under S. 292 the prosecution need not prove that the person who sells or keeps for salary and obscene object knows that it is obscene, before he can be adjudged guilty. The first sub-section of Section 292 does not make knowledge of absently an ingredient of the offence. The prosecution need not prove something which the law does not burden it with. Something much less than actual knowledge must therefore suffice. Courts can only interpret the law as they find it and if any exception is to be made is for Parliament to enact a law. The difficulty of obtaining legal evidence of the offender's knowledge of the absently of the book etc. has made the liability strict. Under our law absence of such knowledge, may be taken in mitigation but it does not take the case out of the sub-section. " In S. 292, in the matter of the second part of the guilty act (Actus reus), namely, the selling or keeping for sale of an object which is found to be obscene, the ordinary guilty intention (mens rea) will be required before the offence can be said to be complete. The offender must have actually sold or kept for sale, the offending article. The circumstances of the case will than determine the criminal intent and it will be a matter of a proper inference from them. The prosecution need not give positive evidence to establish a guilty intention. In criminal prosecution mens rea must necessarily be proved by circumstantial evidence alone unless the accused confesses. The sub-section makes sale and possession for sale of one of the elements of the offence. Where sale has taken place and the accused is a book seller the necessary inference is readily drawn atleast in this case. Difficulties may, however, arise in cases close to the border. To escape liability the accused can prove his lack of knowledge unless the circumstances are such that he must be held guilty for the acts of another. The Court will presume that he is guilty if the book is sold on his behalf and is later found to be obscene unless he can establish that the sale was without his knowledge or consent. The law against obscenity has always imposed a strict responsibility. " "the problem of scienter (knowingly doing of an act) has caused anxious thought in the United States under the Com stock law (18 U. S. C. S. 14161 (1958) which deals with the non-availability of obscene matter. We were cited Manuel Enterprises Inc. V. J. Edward Day, (1962) 370 U. S. 478:8 Law Ed. 2nd 639 but there was so little concurrence in the court that it has often been said, and perhaps rightly, that the case has little opinion value. The same is perhaps true of the latest case Rice Jacobellis Vs. State of Ohie (decided on June 22, 1964) of which a copy of the Judgment was produced for our perusal. " In the Law Lexicon by Mukherjee (Vol. I the second revised Edn.), the maxim, "actus non facit reum nisi mens sit rea", has been mentioned at p. 53 to mean as under : "an act does not make a man guilty, unless there be guilty intention. " In the Text book of Criminal Law by Glanville Williams published by Stevens & Sons Limited of 11 New Petter Lane, London, at p. 29 under Chapter 2, deals with two elements essential for the criminal law, "actus reus" and "mens rea". Increasing insistence upon the requirement of guilty intention or knowledge as an additional factor to wrongful intent or other fault has been a mark of advancing civilisation. In earlier law, the distinction between crimes and civil wrongs was blurred, and no mental element was requisite. In the animistic period of legal thinking 'punishment' was inflicted even upon animals and inanimate objects, as per the Bolmes, in the treatise, "the common Law, Chap. 1; Williams, Liability for Animals (Cambridge 1939) 9-10, 265-266.
(3.) SMITH & Hogan in their treatise, "criminal Law" (5th Edn. London Butterworths) has discussed the two elements, "actus reus" and mens rea separately. It has been mentioned as under : "if circumstances exist which, in law, amount to a justification or excuse, no crime is committed. There is no actus reus. There is probably no mens rea either. Knowledge of circumstances of justification or excuse negatives mens rea. To intend to kill, knowing of no such circumstances is a mens rea for murder. But self-defence is a defense. If D intends to kill P because he realises that this is the only way to prevent P from murdering him, he does not intent an actus reus and so has no mens rea. Most defences, indeed, require a mental element. If the mental element of the defence is lacking, the defence is not made out. A successful defence of duress cannot be made out by showing that D was threatened with death if he did not commit the crime charged, if D was unaware of the threat. If D struck P a split second before P would have launched a murderous attack upon him, D cannot set up the defence of self-defence if he was entirely unaware of P's intention. So, where the defences succeed, neither actus reus nor mens rea has been proved. " Coming home to the present case, I find that the definition of 'criminal trespass' is contained in S. 441, IPC which defines it as under: "441. Criminal Trespass.- Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit criminal trespass". The crux of the definition for the purpose of this case is, "intent to commit an offence or to intimidate, insult or annoy any person in possession of such property. The 'house trespass' is defined in S. 442 but S. 441 is bedrock of criminal trespass. ;