The Latin expression ‘actus non facit reum nisi mens sit rea’, loosely translated

as “an act does not render a man guilty of a crime unless his mind is equally
guilty,” expresses a foundational concept in criminal law. This means that
proving criminal culpability necessitates not only the presence of the actus
reus and the mens rea, but also the coincidence or concurrence of the mens
rea with the conduct that creates the actus reus. This article aims to explore the
concerned maxim with respect to the criminal laws in India. 

Actus non facit reum nisi mens sit rea 

The Supreme Court of India while deciding on the case of C.K. Jaffer Sharief vs
State (Thr C.B.I.) (2012) had observed that an individual’s criminal culpability
would be attached if they broke the law. The norm, however, is not absolute,
and it is subject to the constraints set out in the Latin maxim actus non facit
reum nisi mens sit rea. It means that there can’t be a crime without a criminal
mind. To hold someone criminally responsible, it must be proven that their
actions resulted in an illegal act and that their actions were accompanied by a
legally blameworthy mental attitude. As a result, every crime has two
components, a physical element and a mental aspect, i.e. actus reus and mens
rea respectively.

Mens rea is the source of the Latin maxim actus non facit reum nisi mens sit
rea. Actus non facit reum nisi mens sit rea clarifies the application of mens
rea in criminal law. It asserts that a person is only guilty of committing a crime
if the conduct is done with the purpose to commit a crime. This maxim is used
to judge whether certain conduct is illegal or not. Crimes done with a particular
intent, rather than unforeseen or inadvertent acts, are subject to harsher
penalties. However, no violation of the law may go unpunished. 

The origins of this adage are yet unknown. Pollock and Maitland tracked the
earliest and most distant reference to this maxim to St. Augustine, but they
were unable to provide a sufficient context for the maxim discovered. This
principle was later acquired from contemporary theology by Lord Edward Coke,
and it is now universally used in the common law. He traced the origins of this
aphorism back to St. Augustine’s Sermon 180. In the sermon’s body, St.
Augustine discusses an instance of perjury. In one instance, he talks of a man
who was asked if it rained in a certain location. The man believed it did not rain
but had further believed it was in his best interests to testify that it did. It did,
in fact, rain there, but the man was unaware of this and believes it did not. The
man, according to Augustine, was, therefore, a liar.

Actus non facit reum nisi mens sit rea under the

Indian Penal Code, 1860
The maxim actus non facit reum nisi mens sit rea has been integrated into
the Indian Penal Code, 1860 in two basic ways: 

1. Through express inclusion of the required state of mind (mens rea) in

the definition of an offence.
2. Through ‘General Exceptions’ enumerated in Chapter 5 of the Code,
some of which, such as mistake of fact, accident, infancy, and insanity,
deny the existence of mens rea.

Exceptions of actus non facit reum nisi mens sit

rea 
In certain situations, the law can create offences based only on the physical act,
disregarding ‘the state of mind’ of the person committing the crime. These
situations are likewise punished and are considered exceptions to the general
rule of actus non facit reum nisi mens sit rea. In basic terms, a crime for
which mens rea is not a necessary criterion is an exception to this rule.
While hearing the case of Ranjit D. Udeshi v. the State of Maharashtra (1964),
the Supreme Court of India observed “We do not accept the notion that the
prosecution must establish that the person who sells or holds for sale any
obscene object knows that it is obscene before he can be declared guilty”. As a
result, mens rea is less significant than the act committed. If obscene material
is discovered in a person’s possession, he will be prosecuted under Section
292 of the Indian Penal Code, 1860. It is not necessary to show his purpose or
awareness of the obscene material.

Ignorance of law  
Because every citizen and non-citizen is expected to know the laws of the nation
they are in or visiting, ignorance of the law cannot be used as a justification to
commit a crime. As a result, in such circumstances, the existence or lack of
purpose is not taken into account, making it an exception to the rule. 
In the case of the State of Maharashtra v. Mayer Hans George (1964), the
Indian Government had issued an order on November 24th, banning gold
transportation outside of India in order to save foreign exchange and combat
smuggling. The appellant, M.H George, a German national, boarded an aircraft
in Zurich on November 27th to travel to Manila. On the 28th of November, the
plane made a stopover in Bombay, where he was apprehended by a customs
official with 34 kg of gold. He was held liable under Sections 8 and 23 of
the Foreign Exchange Regulation Act, 1947. Later, the matter went to the
Bombay High Court, where he was acquitted since he had been exposed to the
law recently and, as a German national, he was unaware of the Indian
legislation and had no intention of smuggling the gold. However, when the
matter went to the Supreme Court, he was found guilty since ignorance of the
law could not be used as an excuse, even though he had no intention of
smuggling the gold.

Public nuisances 
A public nuisance is a criminal offence in which an act or omission obstructs,
harms, or causes trouble to the general public’s right. It may also be described
as conduct that jeopardises the broad public’s interest or comfort. In such
circumstances, strict responsibility is applied since the public’s interest is
jeopardised. As a result, these offences are penalised whether or not there is a
mental purpose.

Petty offences 
Petty offences are the least serious kind of offences. When it comes to minor
offences like running a red light, proving the mens rea behind such an act might
be challenging. As a result, in such instances, acts such as that of jumping the
red light may be considered criminal. As a result, it is an exception to the
general rule of actus non facit reum nisi mens sit rea.

Strict liability 
Strict liability offences are those in which the prosecution does not need to show
that the defendant behaved with a guilty mental state since the conduct is
sufficient to establish the crime. The activities that fall under these categories
are damaging to society or the State. For example, under Section 375 of the
Indian Penal Code, 1860, rape is defined as an act of sexual intercourse without
consent. In this situation, even if mens rea is not required, the physical act
alone is sufficient to convict a person under this provision.
Insanity 
A criminal purpose cannot be attributed to a person who, due to a mental illness
or immaturity, is unable to comprehend the nature of the conduct he has
performed or to discern between good and evil. As a result, the defence of
insanity is an exception to the rule of actus non facit reum nisi mens sit rea. The
essential precept of criminal law, actus non facit reum nisi mens sit rea, is
embodied in Section 84 of the Indian Penal Code, 1860. 

While discussing the case of Hari Singh Gond v. the State of M.P. (2008), the
Supreme Court of India had viewed that in circumstances of suspected insanity,
Section 84 of the Indian Penal Code, 1860 establishes the legal standard for
determining culpability. In the aforementioned Code, there is no definition of
‘unsoundness of mind.’ The courts have largely equated this term with insanity.
However, there is no clear meaning of the term ‘insanity.’ It is a phrase that is
used to characterise various levels of mental illness. As a result, a mentally ill
individual is not automatically free from criminal liability. It’s important to
distinguish between legal and medical insanity. A court of law is concerned only
with legal insanity and not medical insanity. The burden of proof is on the
accused to show his insanity, which arises under Section 105 of the Indian
Evidence Act, 1872, and is less onerous than the prosecution’s burden of proof
to prove that the accused did the act for which he is charged.

The Madhya Pradesh High Court while deciding the case of Ram Bahadur Thapa
v. the State Of M.P. (2021) had viewed that under Section 84 of the Indian
Penal Code, 1860, a person is immune from culpability for an act committed
due to insanity if, at the time of the act, he is either incapable of understanding;

1. The nature of the conduct, or

2. That he is doing something that is either improper or illegal.
The accused is protected not only when, on account of insanity, he was
incapable of knowing the nature of the act, but also when he did not know
either that the act was wrong or that it was contrary to law, although he might
know the nature of the act itself. He is, however, not protected if he knew that
what he was doing was wrong, even if he did not know that it was contrary to
law, and also if he knew that what he was doing was contrary to the law even
though he did not know that it was wrong. The onus of proving unsoundness of
mind is on the accused.

Vicarious liability 
The term “vicarious liability” refers to a situation in which the master is held
liable for the actions of his servant while on the job. If the servant has
committed a criminal offence without the master’s knowledge, this general
norm becomes an exception under the maxim actus non facit reum nisi mens sit
rea. The servant’s condition of mind shall not be blamed on the master in such
a circumstance. This was the finding in the notable case of Chisholm v.
Doulton (1889).

Conclusion 
The Latin maxim actus non facit reum nisi mens sit rea have been playing the
role of a catalyst in criminal law. The very essence of the criminal law system
has been embodied in this maxim. This maxim has not only confined itself in
criminal statutes but also in its practical implementation has been reflected in
several judgments discussed in this article. Overall, the criminal law system
would have been paralysed if this maxim would not have come into existence. 

References