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Criminal Offences Under Indian Jurisprudence

Recognizing Instances Of Disobeying Imperfect Obligations As Criminal Offences Under Indian Jurisprudence

Under the Indian Jurisprudence, for an act or omission to constitute the criminal offence it needs to have four basic elements that are-

  1. Such act or omission must be done by a human being;

  2. There must be a guilty mind (mens rea);

  3. There must be an act done or omitted in forbearance to such a guilty mind; and

  4. Such act or omission must cause injury to another person or to the society at large.

The first element makes only human being liable for committing any criminal offences and there is no doubt about the need of such recognition since the other creatures cannot be charged with criminal offences for any acts committed thereby causing harm to any human beings. However, amongst the community of human beings also, a child below 7 years of age or to some extent below 12 years of age will not be made criminally liable for any acts committed by such child only due to lack of rationality. Thus, rationality is the need for constituting a crime by human beings.

The second element speaks for the need for the guilty intention for amounting to offences. It means any act committed or any omission to perform any act which leads to the injury of another person or the society, without the intention of causing such injury will not amount to a crime. However, there are exceptions to this Rule. For instance u/s 269 of IPC, it is provided that if a violation of public order is made knowing that such an order exist, which may or may not lead to injury to other persons, it may be charged with criminal offences even though the person violating such orders did not intend to cause any harm to others. Similarly, the concept is also recognized u/s 270, 271 and several other provisions. The Rules of Strict Liability and Absolute Liability can also be held as an exception to this Rule.

The third element which is the most important provides for actus reus to constitute an offence. U/s 43 of IPC it is provided that an illegal act will also include illegal omissions to perform a legal duty which a person is bound to do with a criminal intention. But the question is- Will such illegal activities include human inactivities or refusal to perform imperfect obligations? For instances- if a person supposes, A sees a newborn baby abandoned on the road which will die if not rescued on time and the rationality of A is sufficient to understand that fact but he still does nothing and passes away. The next day the baby dies, here A will not be liable for any offence since his omission lacked guilty intention and he was even not legally bound to save the child under any law. However, it was his moral duty as well as Fundamental duty to protect the child but still, the law cannot punish him. Similarly, Amartya Sen explained imperfect obligation with the help of a case where a husband brutally assaulted his wife in the presence of many people who were watching that incident from their apartments. In this case, he mentioned that three things happened-

At first, the wife’s right and freedom, not to be assaulted was violated, second, the husband violated the immunity that everyone possesses against assault or killing thereby violating his perfect obligation while third, most importantly the other people who remained inactive but was capable enough for rescuing the woman violated their imperfect obligation.

Now look at the fourth element for constituting the offence, it becomes clear that for any act or omission to become an offence, it is essential to cause injury to other persons or society. But in the above cases even violating one’s imperfect obligations, which does not cause injuries directly but could have prevented such injuries. Thus, all humans being rational animals shall be made criminally liable for such inactivity or for violating their imperfect obligations for preventing crimes under Indian Jurisprudence. However, we must also acknowledge that such a concept has been given recognition under the POCSO Act recently where not informing about any sexual offences committed against children has also been made a punishable offence. But similar provisions are required to be made for other criminal offences also.


Jayanta Boruah, PhD scholar from North-Eastern Hill University.

Editor: Vijayalakshmi Raju

you can contact the author at https://www.linkedin.com/in/jayanta-boruah-9624a1196

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