is any act of commission or omission, which is contrary to law and
which necessarily violates rights of people. Under the legal system of India,
the criminal liability for an omission or an act arises out of a statute
proscribing an act or omission. Criminal law refers to the set of rules and
statutes that defines actions prohibited by the state because it harms and
threatens public welfare and public safety and therefore it leads to punishment
to be imposed for the commission of such acts.
The Indian Penal Code is the
basic governing statute for determining the criminal liability for offences
stated in it, and also for declaring exceptions to the questions of criminal
liability for the offences covered under the local or special laws. It contains
within itself various provisions that embody the doctrine of common purpose
found in the criminal law system.
The term criminal law
refers to substantive
criminal laws. Substantive criminal laws are the ones that define crimes and
prescribe punishments respectively. There exist four prime elements that
constitute a crime, that is, human being, guilty intention or mens rea, illegal
act or actus reus and injury to another human being.
For crime to take place, there has to be wrong intention behind the commission
of the act. The Maxim 'actus non facit reum, nisi mens sit rea' embodies this
principle that the act alone does not amount to guilt unless the mind is also
legally blameworthy. The fundamental principle of crime itself consists a
wrongful act, actus reus that is amalgamated with a wrongful intend, mens rea
which interpret criminal liability.
is the physical aspect of the
crime while mens rea refers to the mental aspect of the crime. The mens rea must
always be criminal and concurrent to actus reus. An act is intentional when it
is the outcome of determining the person's will and is foreseen and desired by
the person. Thus, mens rea requires both a will direct to a certain act and
knowledge about a particular act's consequences.
The commission of a crime goes through three stages viz. first, conceiving an
intention to commit a crime, secondly, preparation for its commission and
lastly, the attempt made to commit it. Generally, the first two stages are not
punishable but once the act enter into the third stage criminal liability
arises. Thus, an attempt to commit a crime forms part of a series of acts.
Intention has not been sufficiently defined by statute and its meaning therefore
has been distilled from the jurisprudence of the superior courts. It is the
common-sense meaning of intention that coincides with what majority consider is
an objective to do something, that is, the accused's 'aim or purpose'. The
intention is the first stage in the commission of a crime and is generally known
as the 'mental stage'.
The intention is the conscious excise of the mental
faculties of an individual to commit an act for the purpose of satisfying
another purpose. Merely intending to commit a crime is not an offence as mere
mental determination or desire to commit a crime does not amount to culpability.
Law does not observe the intention.
In Hari Mohan Mandal vs. State of Jharkhand,
Hon'ble Supreme Court held that it is not essential that bodily injury capable
of causing death should have been inflicted. Intention to kill or knowledge that
death will be caused is a question of fact which will be subject matter of
trial. Therefore, criminal intent is the conscious decision someone makes to
deliberately engage in a negligent or an unlawful act or to harm someone else.
Intention being the first stage in the commission of a crime deals with the
mental status of a person (mens rea). It is the direction of conduct towards the
object chosen upon considering the motives which suggests the choice. The Indian
Penal Code does not contain a properly defined definition of the term
The word 'voluntarily' as defined under section 39 of IPC is to be
understood with the causation of effects and not to act from which those effects
result. The stage of intention is not punishable because one can revert back
from the idea of carrying out an offence. Criminal intention primarily is
divided into 2 types, that is, Direct intention and Indirect/Oblique intention.
The accused is said to have direct intention when he intended a particular
consequence of the wrongful voluntary act. Several criminal offences specify
intention as the mens rea which may be direct or alternatively indirect where
the prohibited act has result that were not the accused's primary purpose.
Therefore, indirect/oblique intention is bringing about another consequence,
which although the accused foresaw as a probable consequence but did not mean to
do the same.
In general, the law draws a distinction between motive and intention. One may
have a good motive or reason for committing an offence but moral justification
can not excuse where the accused intends prohibited harm. Motive is relevant to
evidence and punishment and therefore is no defence. The law is not interested
in knowing 'why you act' but in 'whether you committed the actus reus of any
crime with the necessary Mens Rea.
Some of the exceptions that do exist are
Section 121 and 123 of IPC (waging war against the government), Section 124-A
(sedition), Section 120-A (criminal conspiracy) and so on. In Sherras's case the
court held that mens rea is an essential ingredient of crime except in:
Thus, any crime requires
wrong intention or mens rea as its element and no crime can be made without it.
- Cases not criminal in real sense but which in the public interest are
prohibited under a penalty,
- public nuisance, and
- cases criminal in form but which are really only a summary mode of
enforcing a civil right.
In criminal law, the first two stages of intention and preparation are generally
not made punishable. As discussed in previous section, law does not as a rule
punish individuals for evil intention. Further, it is always possible for a
person to give up his evil intentions. It is possible that the person, who
originally had the intention to commit a crime gives it up and do not go ahead
with the preparation.
It is when an act has gone beyond the stages of
preparation towards achieving the intention that the law of attempt begins and
criminal liability covers the act committed. 'Preparation' refers to the
arranged means and measures necessary for the commission of an offence. Like
intention, the stage of preparation too is not punishable because it is
impossible to show that preparation was done to meet the wrongful end or was
done with malicious mind.
For example, if A acquires a gun from an ammunition
depot with an intention to kill C, he loads his gun and keep it hidden inside
his home. At this stage A made the preparation to kill C but he did not do so.
In this case A cannot be held liable for the offence of murder because it is not
possible to show that A had loaded the gun to kill C.
While preparation to commit an offence is not generally defined to be an offence
but special variety of acts are defined to be offences although they may
constitute preparation to commit those offences. Under Section 122 the IPC
collecting men, arms and ammunition to prepare to wage war against the
government of India.
If any group of people have assembled to conduct dacoity in
that case their assembly is punishable under Section 402 of the Indian Penal
Code. If a person commits or has an intention to wage a war against the
government in that case mere intention to commit the same is punishable under
the Section 123 of the Indian Penal Code. The dividing line between a mere
preparation and an attempt is sometimes thin and there lies a greater degree of
determination in attempt as compared with preparation.
The distinction is listed
|Stage: It is an act of arranging all the necessary
means or commodities to do an illegal act.
||Stage: Attempt is an act done as per the planning
which amounts to offence in all cases.
|Knowledge: Only the person or group of people who
intend to commit the crime knows the fact.
||Knowledge: Once the attempt is completed it
|Preparation is an executory act, it comes before the
||Attempt is an executed act. Attempt is directed
movements towards the commission after the preparation is made.
|Illustration: X purchases a knife to kill Y. Mere
purchase of knife is just the preparation.
||Illustration: X purchases poison and mixes in the
meal of Y with an intention to kill her. It is an attempt.
The third stage is that of 'Attempt'. First two stages generally are not
punishable but once an act enters into the third stage criminal liability
arises. Thus, an attempt to commit a crime forms part of a series of acts. The
reason why the first two stages in the series, that of mental determination and
that of preparation are not punished is that they are too remote from the
completion of the crime whereas the stage of attempt takes the offender very
close to successful completion of the crime.
The complication for the law to
decide is whether that stage when the accused ought to be punished has been
reached. When a preparation ceases and attempt begins is a difficult problem to
Also known as Preliminary Crime, the term attempt means direct movement
towards the commission of a crime after necessary preparations made to carry out
an offence. The Indian Penal Code does not hold any specific definition of
'attempt' but Section 511 of IPC does provide punishment for stiving to commit a
crime. Criminal law punishes the wrongdoer for this stage depending upon the
nature and gravity of the attempted offence.
Ingredients of attempt include
guilty intention to commit an offence, some act done towards the commitment of
the crime and the act must fall short of the completed offence. Therefore, the
offender's moral guilt is the same as if he is not as severe as in the case of
an actual crime.
The absence of the definition of the attempt to commit offences made the courts
in course of time to evolve certain tests to determine whether the act in
question amounts to attempt:
The Proximity Rule states that the act or a series of act, in
order to be designated as an attempt to commit an offence, must be sufficiently
proximate to the accomplishment of the intended substantive offence. Proximity
is a linkage between time and action or to the intention. It is applied in the
cases third stage that is of attempt. It primarily focuses on whether a person
is 'dangerously close' to complete the crime or 'so near' to the result that the
danger of success is very high.
The proximity calculator is not linked to time
neither it is linked to action, but it is linked to the person's intention. An
act towards the commission of a crime must not be penultimate, but such an act
must be proximate to the intended result. Illustration: Y bought a matchbox and
lit it near a haystack. He then extinguished it perceiving that someone was
looking at him. If he had merely bought the matchbox and not lit the matchstick,
he would be absolved of any responsibility. The lighting of the matchstick is
the actus reus necessary for prosecuting him for an attempt to commit a crime.
This is a doctrine used to determine when an act is merely
preparation rather than when can an act be an attempt. Hence, the doctrine
of Locus Poenitentiae says that when an act is such that there is ample time
with the accused to choose whether to commit such crime or not; and is within
the control of that person. The intender may change his path or may fear the
consequences, if the act is in control of the intender to not to commit the
offence, then it is said to be mere preparation and not an attempt. Hence, it is
not punishable under penal law.
This test is a combination of the above two tests. This test
requires the unequivocal intention through the act done which is considered to
be fulfilled beyond a reasonable doubt that the end is towards the crime
intended. Illustration: Z received an order on buying diesel of good quality and
they asked the customer to come the next day. That night Z was seen mixing the
diesel with kerosene and were charged with the offence by the next day. He
claimed that what they did was mere preparation. On this the court observed that
when Z knew that the customer was going to come the next day and in furtherance,
the accused tried to add diesel and kerosene night itself so that they are not
caught or seen by the customer. And he did so to act in a way to cheat that
diesel was of good quality.
Probable Desistance Test:
The probable desistance test examines how far the
defendant has progressed with commission of the crime, rather than analyzing how
much the defendant has left to accomplish. In accordance with this test, a
defendant commits attempt when he/she has crossed a line beyond which it
is probable he/she will not desist unless there is an interruption from some
outside source, law enforcement, or circumstances beyond his/her control.
Impossibility Test: An act that is impossible to execute cannot be attempted and
is thus cannot be made guilty of. In such cases, there is no possibility to
understand the goal of the accused. Impossible acts are not punishable, but the
impossibility must be absolute and not only relative. Exception to this would be
the case of attempt to theft as though the act was impossible due to some
unfavourable condition, therefore according to section 511, it constitutes an
offence of attempt and thus, would be punishable.
The final stage of an offence is where the crime is completed, that is,
commission or accomplishment. The crime, generally becomes punishable only after
the crime has been committed. If the accused guilty of committing the crime
succeeds in his attempt, he is said to be liable of the complete offence. But if
his attempt is unsuccessful, he will only be guilty of the attempt he made.
Commission is always considered when it has met the desired intend and therefore
caused injury to another person and therefore which the accused will be held
For instance, if A fires at Z with the intention to kill him, and if Z
dies, A will be guilty for committing the offence of murder but if Z is only
injured, the wrongdoer will be liable for a case of attempt to murder. Another
illustration of accomplishment of crime would be, if X who acquires a gun or a
revolver from certified ammunition store with a license, but has an evil
intention of killing his bitter enemy Y. He keeps the weapon in his pocket duty
loaded but does nothing more than that.
Here all the essential elements are
present, which leads to commission of any offence (mens rea + actus reus + act
towards commission). X has the intention of committing the offence and he did
make preparations for the same but he has not yet committed the offence. X
locates Y in the nearby garden and fires aiming at him. If the bullet hits Y
causing fatal injury leading to his death, then the attempt of X is successful
and the intention of X is accomplished. X will be liable for the offence of
'murder' under Section 302 of IPC. If Y got injured then X would be liable for
the offence of 'attempt to murder' under Section 307 of the IPC.
Criminal Law is concerned with results emanating from human conduct and with the
cases which the criminal policy of a given community has singled out as
sufficiently harmful to it to prohibit them, with sanctions for disobedience to
the prohibition. The ancient maxim 'actus non facit reum, nisi mens sit rea' has
remained unchallenged as a declaration of principle at common throughout the
centuries up to the present day which envisages that no man should be convicted
of a crime unless the two requirements of mens rea and actus reus are satisfied
in every crime.
The word Jurisdiction
emerges from combination of two Latin terms, that is,
, and Dicere
, meaning to speak
. Jurisdiction primarily
refers to the extent of the authority bestow upon a legal body to administer
justice within that defined dominion. It is the area wherein the law or the
decisions of a legal body (the courts, political or government office or any law
enforcement agency) remain applicable. The territorial coverage of the Indian
Penal Code extends to the whole of India.
The general principle of criminal
jurisdiction is that it is determined by the locality of the offence or wrong
committed, which is irrespective of the nationality or other similar attributes
of the offender.
Territorial Jurisdiction as laid under Section 2 of the
Indian Penal Code, declares that every person shall be legally responsible for
punishment under the code and not otherwise for every omission or act contrary
to the provisions of the code of which he shall be guilty within India.
Extra-Territorial Jurisdiction is referred to as the situation when a state
extends its legal powers beyond its territorial boundaries. For instance, when a
criminal offence can be prosecuted in a country regardless of where the crime
was committed, or when a country maintains jurisdiction over its citizens while
they are overseas.
Section 3 and Section 4 of the Indian Penal Code, 1860 relate to
extra-territorial jurisdiction as well as extra-territorial operations. Section
3 punishes any person who commits any offence and for which he can be made
liable under Indian law. The offence must be committed outside the territory of
India and its repercussions must affect India.
Thus, the section implies that if
any person who is an Indian citizen, does any act outside the territory of
India, will be liable and can be tried in India even if the act committed was
not an offence in that country. It was also observed that section 3 helped
authorities in India to proceed by treating the offence as one committed within
India. For practical purposes, assumptions were necessary to be made.
Whereas, section 4 expands the scope of extra-territorial jurisdiction of the
Indian Penal Code.
The section shows the extent to which the Code can apply. It
inflicts liability over a person who has committed the offence outside the
territory of India but is found at the present time, in the territory of India.
In exercise of the extra-territorial jurisdiction, the Courts of India are
empowered to try offences which are committed outside India:
- On Land
- On Aircraft; and
- On the High Seas
The concept of section 3 and section 4 of the Indian Penal Code, 1860 can be
understood with the help of Remia v. Sun-Inspector of Police, Tanur & Others
case. The facts of the case are that a complaint was filed by the mother,
brother and widow before the Sub-Inspector of Police. The complaint was
regarding the death of Sulaiman and that in the complaint it was specifically
mentioned that they suspect one who has murdered Sulaiman at Sharjah in UAE.
Sub-Inspector of Police refused to register the case of murder on the grounds
that the alleged crime was committed outside his territorial limits (outside
India). The petitioner, therefore, filed the original petition directing the
Sub-Inspector of Police to prepare on FIR and register the case on basis of Ext.
P3 complaint and to start with the investigation. The learned Government pleader
challenged that the Sub-Inspector of Police has his reasons that are justified
because no police in the State can look into the offence committed beyond the
territorial limits of India.
But, when the Kerala High Court examined section 3,
section 4 of the IPC and Section 188 of Cr PC, it was found and thereafter held
that refusal by the Sub-Inspector of Police, Tanur was illegal. Even when
during the investigation stage, if the person is unavailable in India,
extradition [Section 4(1)] proceedings needs to be restored. The final
conclusion is that the Sub-Inspector of Police can conduct the investigation
because irrespective of where the crime took place, the person on whom the focus
of suspicion turns was laid to be a citizen of India.
Therefore, Jurisdiction is a term referred to as the limits within which Courts
of a State can exercise their powers over cases. With respect to the Indian
Criminal Courts, there are two types of territorial jurisdiction, that is,
intra-territorial jurisdiction and extra-territorial jurisdiction. The
extra-territorial jurisdiction deals with offenses and crimes committed beyond
the territory of India. The Criminal Courts have the authority to exercise their
powers within these jurisdictions and are to stick to the provision of the
Indian Penal Code.
- Mobarik Ali Ahmed v. State of Bombay, A.I.R. 1957 S.C. 857 : 1957 Cr LJ
1346 (SC) : 1958 SCR 328
- Pheroze v. State of Maharashtra, 1964 (2) Cr LJ 533 (Bom).
- Remia v. Sub-Inspector of Police, Tanur & Others, 1993 Cr LJ 1098 (Ker.)
- See also, Muhammad v. State of Kerala, 1994(1) KLT 464 (DB); Samaruddin
v. Assistant Director of Enforcement, Trivandrum, 1995 Cri LJ 2825 (Ker);
Muhammed Sajeed v. State of Kerala, 1995 Cri LJ 3313 (Ker).