One of the cardinal principles of English criminal law is that there must be guilty mind behind that act which is sought to be labelled as criminal. Without the mind of the person committing the act being guilty, the person is not guilty. The guilty intent and the act must both concur.
This is expressed by the maxim actus non facit reum, nisi mens sit rea, i.e., the act by itself does not constitute guilt unless done with guilty intent.
Thus, mens rea in case of murder means malice aforethought; in case of manslaughter it may mean inattention or negligence to note a danger signal; in case of the theft and intention to deprive the rightful owner of his property and so on.
Without a guilty intent accompanying the act, the act would not by itself constitute guilt and may be excusable as an accident.
Mere absence of mind, however, is not mens rea or guilty minu. So also motive of the act is irrelevant when finding the guilty mind, although motive and absence of mind are both mental elements responsible for a large number of acts.
Morality or immorality of the act, laudable or depreciable motives of the act, have accompanying them the immediate cause or intent of the act, and it is with these immediate intents that the law is concerned and to these intents the term mens rea is applied.
A thief may deprive a person of his property to use it in the defence of his country, but it is theft, the immediate purpose being guilty mind, the intention to steal.
Every crime must have some guilty intent accompanying it though the mental elements of each may differ widely. But this is a wide statement to make. The Indian Penal Code does not follow the English maxim of mens rea to the fullest extent, and there are a large number of municipal laws which make an act itself punishable as a crime without there being any elements of guilty intent.
The Indian Penal Code, however, itself defines various offences with various mental contents of each. The mental contents are denoted by use of the words “voluntarily”, “knowingly,” “fraudulently.” “Dishonestly,” “negligent,” “rashly,” and the like.
The mental contents of offences in the definition of which one or the other of these words occur differ widely from those in which they do not occur is also in which different words occur.
The guilty mind may be thus a fraudulent mind or a dishonest mind or a rash mind or a negligent, mind according to the circumstances of the case, and each of these minds differs widely from the other, it is thus said that mental elements of different crimes differ widely. There are, however, crimes when the act itself constitutes a crime and no mental element is necessary to constitute the same a crime.
There is also an example where an act done in good faith for the purposes of avoiding or preventing other harm, done without criminal intent, is not an offence, even though it may have been done with the knowledge that it is likely to cause harm. (S. 81, I.P.C.).
Tort differs from crime both in principle and in procedure. In the first place, the former constitutes an injury or breach of duty to an individual or individuals concerning his or their private or civil rights, while the latter constitutes a breach of public rights and duties affecting the whole community considered as a community. In the second place, in tort the wrongdoer has to compensate the aggrieved party, but in crime he is punished by the State in view of the interests of the society.
In the third place, in tort the action is raised by the aggrieved party, but in crime the State is supposed to be injured by wrong to the community and ay such the proceedings are conducted in the name of the State and the guilty person is punished by it.
And, lastly, in tort or civil wrong, intention on the part of the wrong-doer is immaterial, but criminal intention is an essential element in crime.
Every tortious act does not amount to a crime nor does every come include a tort. Thus, mistaken or innocent trespass to one’s land or private nuisance is a tortious act, but is not a crime for there is no element of danger to public interest. In the same way obstruction of a highway, perjury, homicide, etc. are exclusively crimes and not torts.
But there are cases where a wrong is both criminal and tortious, and the State prosecutes the wrongdoer and also affords the sufferer an opportunity to claim damages by providing concurrent remedies. Examples of such wrongs are assault, false imprisonment, libel and theft.
In such cases there does not only the violation of a private right of bodily safety, property or reputation but such violation also constitute a menace to the safety of the society in general? Thus, in the case of assault not only the injured can recover damages for the right infringed is his right to bodily safety, but the wrongdoer will be punished by the State for violation of the safety of the society generally.
Section 2 of the Indian Penal Code provides that every person shall be made liable to punishment under the Code, without distinction of nationality, rank, caste or creed, provided the offence with which he is charged has been committed in some part of India.
A foreigner who enters the Indian territories also submits himself to the operation of Indian laws and he cannot be allowed to plead in defence that he did not know that he was doing wrong as the act was an offence in his own country.
Although the Indian Penal Code does not provide any exception in favour of any person from the jurisdiction of criminal courts, such a statutory exception is available under Art 361 of the Constitution.
It provides that no criminal proceeding whatever shall be instituted or continued against the President or the Governor of a State and no process for his arrest or imprisonment shall issue in or from any court during his term of office.
Besides the above statutory exception the doctrine of exterritoriality exempts the following persons from the jurisdiction of the criminal courts of every country;
(1) Sovereigns whilst travelling or resident in foreign countries:
This privilege is extended to sovereigns even when they are living incognito’,
(2) Foreign State:
A Foreign State cannot be made a party to a proceeding in another State;
(3) Ambassadors and other diplomatic agents:
They and their families, enjoy complete immunity from criminal jurisdiction of the courts of the country to which they are accredited;
(4) Public vessels whilst in foreign ports or territorial waters:
They are exempt in foreign waters from the jurisdiction of the State within whose territorial jurisdiction they happen to be;
(5) The armed forces of a State when passing through a foreign territory:
They are exempted from the jurisdiction of a foreign State, when, by consent, they happen to pass from its soil;
(6) Alien Enemies:
In respect of acts of war they cannot be tried by criminal courts but can only be dealt with by martial law. In respect of offences unconnected with war, they are triable by ordinary criminal courts; and
(7) International Institutions:
These institutions, e.g., the United Nations and its various branches have been conceded immunity from territorial jurisdiction.