MD: ISFAQUL ALAM
LLB(Hon’s) , BIU 15th batch
Qu: What is crime ?
Definition of crime : the word “crime” is derived from the Latin word “kiroms” which means ‘to accuse’. It covers those acts which are against social order and deserve disapprobation and condemnation of society .
Qu: classified of the crime ?
Classification of crime or offence :-
From the view point of considering filing case are two types :-
Cognizable offence .
Non- cognizable offence.
From the view point of considering bail are two types : -
Bail able offence .
Non Bail able offence .
From the view point of considering offence are two types :-
Compoundable .
Non- Compoundable .
From the view point of considering limitation offence are two types :-
Summary offence .
Regular offence .
From the view point of considering consequence offence are two types :-
Result crime .
Conduct crime .
QU : What do you mean by cognizable offence and non cognizable offence ?
Answer :
Cognizable Offence : - A cognizable offence is a criminal offence in which the police is empowered to register an fir, investigate, and arrest an accused without a court issued warrant .
Non Cognizable Offence :- A non cognizable offence is an offence in hich police can neitheir register an fir, investigate, nor effect arrest without the express permission or direction from the court .
QU: What do you mean by bailable offence and non bailable offence ?
Answer :
Bailable Offence : When any person accused for a bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail.
In case of a bailable offence bail is a matter of right
If such officer or Court, thinks it fit such person maybe released on a personal bond without sureties. In case of bailable offence, one has to only file the bail bonds and no application is required.
Non Bailable Offence : In case a person is accused of a non-bailable offence it is a matter of discretion of the court to grant or refuse bail and application has to be made in court to grant bail.
1. When a person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but
i. such person shall not be released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
ii. such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence :
Provided that the Court may direct that a person referred to in clause (i) or clause (ii) as above, be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:
Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:
Provided also that the mere fact that an accused may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.
2. If it appears to such officer or Court at any stage of the investigation; inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provision of section 446-A and pending such inquiry, be released on bail or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
3. When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter 6, Chapter 16 or Chapter 17 of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (!), the Court may impose any condition which the Court considers necessary-
a. in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or
b. in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or
c. otherwise in the interests of justice.
4. An officer or a Court releasing any person on bail under sub-section (1) or sub-section (2), shall record in writing his or its reasons or special reasons for so doing.
5. Any Court, which has released a person on bail under sub-section (1) or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
6. If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is if custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered .
QU: What do you mean by compoundable offence and non compoundable offence ?
Answer :
Compoundable Offence : compoundable offence is which can be compromised at the instance of the complainant before the court .
Non Compoundable Offence : non-compoundable is not permitted to settle before the court.
QU: What do you mean by result crime and conduct crime ?
Answer :
Result Crime : The actus reus may relate to the result of the act or omission of the defendant. The conduct itself may not be criminal, but the result of the conduct may be. Eg it is not a crime to throw a stone, but if it hits a person or smashes a window it could amount to a crime. Causation must be established in all result crimes.
Examples of result crimes:
Assault
Battery
ABH
Wounding and GBH
Murder & Manslaughter
Criminal damage
Conduct Crime : the conduct itself might be criminal. Eg. the conduct of lying under oath represents the actus reus of perjury. It does not matter that whether the lie is believed or if had any effect on the outcome of the case, the actus reus of the crime is complete upon the conduct.
Examples of conduct crimes:
Perjury
Theft
Making off without payment
Rape
Possession of drugs or a firearm
QU: What are the basic element of crime . Answer :
Basic Element of Crime :
AR+MR-DEFFENCE = CRIME
AR(Actus Reus) :- There should be an act or omission to constitute a crime . Intention or means-rea alone shall not constitute a crime unless it is followed by some external act . Generally, omitting to do something will not amount to actus reus of an offence. The criminal law usually punished individuals for positive conduct and not for inaction . There are however some notable exception. For example, a police officer may have a duty to act to prevent and assault and if he does not, he will be liable to be punished under the law.
MR(Mens-rea or guilty mind) :- Mens-rea is one of the essential ingredients of a crime . It may however be direct or implied . The implied mens-rea is otherwise termed as constructive mens-rea.
Mens-rea implies that there must be a state of mind with respect to an actus-reus, that is an intention to act in the prescribed fashion. It is however, important to distinguish mens-rea from motive. Thus if a person steals away few loaves of bread from someone’s Kitchen to feed a child who is dying of hunger. The motive here may be honorable and understandable , nevertheless the mens-rea being to commit the theft , the person would be convicted for theft. His motive may, however, be taken into account in sentencing and he may be less severally punished, because of his good motive . In short motive should be taken into consideration at the sentencing stage and not at the time of deciding the question of mens-rea.
QU: What do you mean by actus reus offence ?
Answer :
Actus reus Offence : The actus reus in criminal law consists of all elements of a crime other than the state of mind of the defendant. In particular, actus reus may consist of: conduct, result, a state of affairs or an omission.
An actus reus consists of more than just an act. It also consists of whatever circumstances and consequences are recognised for liability for the offence in question - in other words all the elements of an offence other than the mental element.
QU: How many ways actus reus offence may be commited ?
Answer :
The actus reus can be committed by an omission where there exists a duty imposed by law. There are three situations in which a duty may be imposed by law. These are where the defendant creates a dangerous situation, where there has been a voluntary assumption of responsibility and misconduct in a public office. Additionally an omission may be classified as part of a continuing act.
a). Creating a dangerous situation and failing to put it right:
R v Miller [1983] 2 AC 161 Case summary
b). Assumption of responsibility:
R v Stone & Dobinson [1977] 1 QB 354 Case summary
c). Misconduct in a public office:
R v Dytham [1979] Q.B. 722 Case summary
An omission can also be classed as part of a continuing act:
Fagan v MPC [1969] 1Q.B. 439 Case summary
QU: What do you mean by omission ?
Omission : Can a person be held criminally responsible for a failure to act? The general rule is that there can be no liability for failing to act, unless at the time of the failure to act the defendant was under a legal duty to take positive action:
(a) DUTY ARISING FROM STATUTE
Liability for failing to act will be imposed where the defendant can be shown to have been under a statutory duty to take positive action.
A leading example of such a case is provided by the Children and Young Persons Act 1933, which creates the offence of wilfully neglecting a child. Hence by simply failing to provide food for the child, or failing to obtain appropriate medical care, a parent could be held criminally liable for any harm that results. Another example is the Road Traffic Act 1988 which creates the offences of failing to provide a specimen when required to do so and failing to give a correct name and address when required to do so. See also:
Greener v DPP (1996) The Times, Feb 15 1996.
(b) DUTY ARISING FROM A CONTRACT
Where a person is under a positive duty to act because of his obligations under a contract, his failure to perform the contractual duty in question can form the basis of criminal liability. See:
R v Pittwood (1902) 19 TLR 37.
(c) PUBLIC DUTY
A person in a public office may be under a public duty to care for others.
(d) VOLUNTARY ASSUMPTION OF RESPONSIBILITY/RELIANCE
There is a common law duty of care where there is a relationship of reliance between defendant and victim. Thus if someone voluntarily assumes responsibility for another person then they also assume the positive duty to act for the general welfare of that person and may be liable for omissions which prove fatal.
(e) DUTY DUE TO DEFENDANT'S PRIOR CONDUCT
If the defendant accidentally commits an act that causes harm, and subsequently becomes aware of the danger he has created, there arises a duty to act reasonably to avert that danger.
QU: What do you mean by causation ? classify it .
Answer :
Causation : Causation refers to the enquiry as to whether the defendant's conduct (or omission) caused the harm or damage. Causation must be established in all result crimes. Causation in criminal liability is divided into factual causation and legal causation. Factual causation is the starting point and consists of applying the 'but for' test. In most instances, where there exist no complicating factors, factual causation on its own will suffice to establish causation. However, in some circumstances it will also be necessary to consider legal causation. Under legal causation the result must be caused by a culpable act, there is no requirement that the act of the defendant was the only cause, there must be no novus actus interveniens and the defendant must take his victim as he finds him (thin skull rule).
Factual causation
Factual causation is established by applying the 'but for' test. This asks, 'but for the actions of the defendant, would the result have occurred?' If yes, the result would have occurred in any event, the defendant is not liable. If the answer is no, the defendant is liable as it can be said that their action was a factual cause of the result.
R v White [1910] 2 KB 124 Case summary
Legal Causation
1. Legal causation requires that the harm must result from a culpable act:
R v Dalloway (1847) 2 Cox 273 Case summary
However, this does not apply where the offence is one of strict liability:
R v Williams [2011] 1 WLR 588 Case summary
2. The defendant's action need not be the sole cause of the resulting harm, but it must be more than minimal:
R v Benge (1865) 4 F. & F 504 Case summary
3. There must be no novus actus interveniens.
A novus actus interveniens is a new intervening act which breaks the chain of causation. Different tests apply to decide if the chain has been broken depending on the intervening party.
a). Act of a third party
The act of a third party will generally break the chain of causation unless the action was foreseeable:
R v Pagett (1983) 76 Cr App R 279 Case summary
b). The act of the victim
Where the act is of the victim, the chain of causation will not be broken unless the victim's actions are disproportionate or unreasonable in the circumstances:
R v Roberts [1971] EWCA Crim 4 Case summary
R v Williams & Davis [1992] Crim LR 198 Case summary
c) Medical intervention
Where medical intervention contributes to death, the courts have been inconsistent in their approach.
R v Jordan (1956) 40 Cr. App. E. 152 Case summary
R v Smith [1959] 2 QB 35 Case summary
R v Cheshire [1991] 1 WLR 844 Case summary
4. Thin skull rule (egg shell skull rule)
Under the thin skull rule, the defendant must take his victim as he finds him. This means if he has a particularly vulnerable victim he is fully liable for the consequences to them even if an ordinary person would not have suffered such severe consequences. For example if D commits a minor assault on V who has a heart condition and V suffers a heart attack and dies. D is liable for the death of V even though such an attack would result in no physical harm to some one without a heart condition.
This rule applies irrespective of whether the defendant was aware of the condition.
R v Hayward (1908) 21 Cox 692 Case summary
The thin skull rule also applies where the victim has refused medical treatment which would have saved them:
R v Holland (1841) 2 Mood. & R. 351 Case summary
R v Blaue [1975] 1 WLR 1411 Case summary
QU: How do you established the factual causation by crime , mention case refference . Answer :
Factual causation
Factual causation is established by applying the 'but for' test. This asks, 'but for the actions of the defendant, would the result have occurred?' If yes, the result would have occurred in any event, the defendant is not liable. If the answer is no, the defendant is liable as it can be said that their action was a factual cause of the result.
R v White [1910] 2 KB 124 Case summary
QU: How many requierments have to fulfill to established the legal causation ?
Answer
Legal Causation
1. Legal causation requires that the harm must result from a culpable act:
R v Dalloway (1847) 2 Cox 273 Case summary
However, this does not apply where the offence is one of strict liability:
R v Williams [2011] 1 WLR 588 Case summary
2. The defendant's action need not be the sole cause of the resulting harm, but it must be more than minimal:
R v Benge (1865) 4 F. & F 504 Case summary
3. There must be no novus actus interveniens.
A novus actus interveniens is a new intervening act which breaks the chain of causation. Different tests apply to decide if the chain has been broken depending on the intervening party.
a). Act of a third party
The act of a third party will generally break the chain of causation unless the action was foreseeable:
R v Pagett (1983) 76 Cr App R 279 Case summary
b). The act of the victim
Where the act is of the victim, the chain of causation will not be broken unless the victim's actions are disproportionate or unreasonable in the circumstances:
R v Roberts [1971] EWCA Crim 4 Case summary
R v Williams & Davis [1992] Crim LR 198 Case summary
c) Medical intervention
Where medical intervention contributes to death, the courts have been inconsistent in their approach.
R v Jordan (1956) 40 Cr. App. E. 152 Case summary
R v Smith [1959] 2 QB 35 Case summary
R v Cheshire [1991] 1 WLR 844 Case summary
4. Thin skull rule (egg shell skull rule)
Under the thin skull rule, the defendant must take his victim as he finds him. This means if he has a particularly vulnerable victim he is fully liable for the consequences to them even if an ordinary person would not have suffered such severe consequences. For example if D commits a minor assault on V who has a heart condition and V suffers a heart attack and dies. D is liable for the death of V even though such an attack would result in no physical harm to some one without a heart condition.
This rule applies irrespective of whether the defendant was aware of the condition.
R v Hayward (1908) 21 Cox 692 Case summary
The thin skull rule also applies where the victim has refused medical treatment which would have saved them:
R v Holland (1841) 2 Mood. & R. 351 Case summary
R v Blaue [1975] 1 WLR 1411 Case summary
QU: How any chain of causation may be broken mention case refference .
Answer : The chain of causation is a fragile concept, easily broken.â Discuss.The chain of causation is a series of events that establishes if the defendantâs act caused harm. Causation can be divided into factual and legal causation. For the purpose of my essay, I will be focusing on legal causation. The key test for legal causation is by proving that the defendantâs act is an operating and substantial causeâ. The chain of causation can be broken through proving the existence of the ânovus actus interveniensâ, as a âfree, voluntary and informed actâ of a third party, rendering the original act no longer a substantial and operating cause of the result.
In my essay, I will be arguing that the chain of causation cannot be easily broken for several reasons. Firstly, for an act to be ânovus actus interveniensâ, it needs to be âfree, voluntary and informedâ. This leads to an increased difficulty for the existence of a ânovus actus interveniensâ as the term âvoluntaryâ can be interpreted broadly. Additionally, it is excluded from being âfree, voluntary and informedâ if it can be justified. Secondly, the courts have shown a reluctance to render a defendantâs action no longer an operating and substantial clause. This is most apparent in medical negligence cases. Thirdly, the courts identified certain circumstances that limit the chain of causation from being broken. This is considered in cases where there is an act of the victim, the victim may have a âthin skullâ, an event of nature and where there are intended results by the defendant.
Firstly, the chain of causation is not easily broken as what constitutes a âfree voluntary and informedâ can be taken broadly. Hart and Honoré assert that âvoluntary is given quite an extended meaningâ, that can be based on several principles. [1] One of the principles, is where âbehavior is to be considered an intervening cause, such behavior cannot consist of involuntary bodily movement.â This is best exemplified where Guy pushes Mary into Ivy who suffers injuries. Guy is said to have caused the injuries as Mary was not acting in a voluntary way so her âactâ could not constitute a ânovus actus interveniensâ. This principle was extended further in Wise v Dunning[2]
QU: What do you mean by means rea ? classify it .
Answer : Mens rea
Mens rea refers to the crime's mental elements of the defendant's intent. This is a necessary element—that is, the criminal act must be voluntary or purposeful. Mens rea is the mental intention (mental fault), or the defendant's state of mind at the time of the offense, sometimes called the guilty mind. It stems from the ancient maxim of obscure origin, "actus reus non facit reum nisi mens sit reas" that is translated as "the act is not guilty unless the mind is guilty."[4] For example, the mens rea of aggravated battery is the intention to do serious bodily harm. Mens rea is almost always a necessary component in order to prove that a criminal act has been committed.[2][3]
Mens rea varies depending on the offense. For murder, the mental element requires the defendant acted with "malice aforethought". Others may require proof the act was committed with such mental elements such as "knowingly" or "willfulness" or "recklessness". Arson requires an intent to commit a forbidden act, while others such as murder require an intent to produce a forbidden result. Motive, the reason the act was committed, is not the same as mens rea and the law is not concerned with motive.[2]
Although most legal systems recognize the importance of the guilty mind, or mens rea, exactly what is meant by this concept varies. The American Law Institute's Model Penal Code has reduced the mental states to four. In general, guilt can be attributed to an individual who acts "purposely," "knowingly," "recklessly," or "negligently." Together or in combination, these four attributes seem basically effective in dealing with most of the common mens rea issues.[5]
QU: What do you mean by direct and indirect intention ? Answer :
Direct Intention : This is the most straightforward form of intention. This is where the consequences of the defendants actions (or his attempt to carry actions out) are desired.
Indirect Intention : here is a slight blurring between indirect intention, and recklessness ,indirect intention and recklessness are not however the same thing.
QU: What do you mean subjective and objective recklessness ?
Answer:
Subjective recklessness : The subjective component of the definition of “recklessly” requires proof that the defendant was aware that she was running a serious risk – more specifically, that the defendant “consciously disregard[ed]” a “substantial and unjustifiable risk.”
Objective recklessness : The objective component requires proof that the defendant’s conduct must be a “gross deviation” from the “standard of care that a law-abiding person would observe” in the defendant’s situation.
QU: Write Short note …………. 1, Volenti non fit injuries 2, Act of state , 3, Act of judiciary 4, Act of god
Answer : Volenti non fit injuries : Latin term meaning “to one who is willing, no harm is done.” This doctrine holds that a person who knowingly and willingly puts himself in a dangerous situation cannot later on sue for any resulting injuries. Volenti non fit injuria is a defense in tort. If a person engages in an event accepting and being totally aware of the risks inherent in that event, then such person can not later complain of, or seek compensation for an injury suffered during the event. Volenti non fit injuria is used often to defend against tort actions as a result of a sports injury.
Act of state : This doctrine says that a nation is sovereign within its own borders, and its domestic actions may not be questioned in the courts of another nation. Each sovereign state has complete control over the laws within its own borders and that its acts cannot be questioned in the courts of another state.
The act-of-state doctrine is a common-law principle that prevents U.S. courts from questioning the validity of a foreign country's sovereign acts that take place within its own territory. The "Act of State Doctrine" says that courts should not decide cases that would interfere with their country's foreign policy.
Act of judiciary : The judiciary (also known as the judicial system) is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes. Under the doctrine of the separation of powers, the judiciary generally does not make law (that is, in a plenary fashion, which is the responsibility of the legislature) or enforce law (which is the responsibility of the executive), but rather interprets law and applies it to the facts of each case. This branch of the state is often tasked with ensuring equal justice under law. It usually consists of a court of final appeal (called the "Supreme court" or "Constitutional court"), together with lower courts.
Act of god : A manifestation especially of a violent or destructive natural force, such as a lightning strike or earthquake, that is beyond human power to cause, prevent, or control.
In the law of contracts, an act of God may be interpreted as an implied defence under the rule of impossibility or impracticability. If so, the promise is discharged because of unforeseen occurrences, which were unavoidable and would result in insurmountable delay, expense, or other material breach.
In the law of torts, an act of God may be asserted as a type of intervening cause, the lack of which would have avoided the cause or diminished the result of liability (e.g., but for the earthquake, the old, poorly constructed building would be standing). However, foreseeable results of unforeseeable causes may still raise liability.
LLB(Hon’s) , BIU 15th batch
Qu: What is crime ?
Definition of crime : the word “crime” is derived from the Latin word “kiroms” which means ‘to accuse’. It covers those acts which are against social order and deserve disapprobation and condemnation of society .
Qu: classified of the crime ?
Classification of crime or offence :-
From the view point of considering filing case are two types :-
Cognizable offence .
Non- cognizable offence.
From the view point of considering bail are two types : -
Bail able offence .
Non Bail able offence .
From the view point of considering offence are two types :-
Compoundable .
Non- Compoundable .
From the view point of considering limitation offence are two types :-
Summary offence .
Regular offence .
From the view point of considering consequence offence are two types :-
Result crime .
Conduct crime .
QU : What do you mean by cognizable offence and non cognizable offence ?
Answer :
Cognizable Offence : - A cognizable offence is a criminal offence in which the police is empowered to register an fir, investigate, and arrest an accused without a court issued warrant .
Non Cognizable Offence :- A non cognizable offence is an offence in hich police can neitheir register an fir, investigate, nor effect arrest without the express permission or direction from the court .
QU: What do you mean by bailable offence and non bailable offence ?
Answer :
Bailable Offence : When any person accused for a bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail.
In case of a bailable offence bail is a matter of right
If such officer or Court, thinks it fit such person maybe released on a personal bond without sureties. In case of bailable offence, one has to only file the bail bonds and no application is required.
Non Bailable Offence : In case a person is accused of a non-bailable offence it is a matter of discretion of the court to grant or refuse bail and application has to be made in court to grant bail.
1. When a person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but
i. such person shall not be released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
ii. such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence :
Provided that the Court may direct that a person referred to in clause (i) or clause (ii) as above, be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:
Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:
Provided also that the mere fact that an accused may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.
2. If it appears to such officer or Court at any stage of the investigation; inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provision of section 446-A and pending such inquiry, be released on bail or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
3. When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter 6, Chapter 16 or Chapter 17 of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (!), the Court may impose any condition which the Court considers necessary-
a. in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or
b. in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or
c. otherwise in the interests of justice.
4. An officer or a Court releasing any person on bail under sub-section (1) or sub-section (2), shall record in writing his or its reasons or special reasons for so doing.
5. Any Court, which has released a person on bail under sub-section (1) or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
6. If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is if custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered .
QU: What do you mean by compoundable offence and non compoundable offence ?
Answer :
Compoundable Offence : compoundable offence is which can be compromised at the instance of the complainant before the court .
Non Compoundable Offence : non-compoundable is not permitted to settle before the court.
QU: What do you mean by result crime and conduct crime ?
Answer :
Result Crime : The actus reus may relate to the result of the act or omission of the defendant. The conduct itself may not be criminal, but the result of the conduct may be. Eg it is not a crime to throw a stone, but if it hits a person or smashes a window it could amount to a crime. Causation must be established in all result crimes.
Examples of result crimes:
Assault
Battery
ABH
Wounding and GBH
Murder & Manslaughter
Criminal damage
Conduct Crime : the conduct itself might be criminal. Eg. the conduct of lying under oath represents the actus reus of perjury. It does not matter that whether the lie is believed or if had any effect on the outcome of the case, the actus reus of the crime is complete upon the conduct.
Examples of conduct crimes:
Perjury
Theft
Making off without payment
Rape
Possession of drugs or a firearm
QU: What are the basic element of crime . Answer :
Basic Element of Crime :
AR+MR-DEFFENCE = CRIME
AR(Actus Reus) :- There should be an act or omission to constitute a crime . Intention or means-rea alone shall not constitute a crime unless it is followed by some external act . Generally, omitting to do something will not amount to actus reus of an offence. The criminal law usually punished individuals for positive conduct and not for inaction . There are however some notable exception. For example, a police officer may have a duty to act to prevent and assault and if he does not, he will be liable to be punished under the law.
MR(Mens-rea or guilty mind) :- Mens-rea is one of the essential ingredients of a crime . It may however be direct or implied . The implied mens-rea is otherwise termed as constructive mens-rea.
Mens-rea implies that there must be a state of mind with respect to an actus-reus, that is an intention to act in the prescribed fashion. It is however, important to distinguish mens-rea from motive. Thus if a person steals away few loaves of bread from someone’s Kitchen to feed a child who is dying of hunger. The motive here may be honorable and understandable , nevertheless the mens-rea being to commit the theft , the person would be convicted for theft. His motive may, however, be taken into account in sentencing and he may be less severally punished, because of his good motive . In short motive should be taken into consideration at the sentencing stage and not at the time of deciding the question of mens-rea.
QU: What do you mean by actus reus offence ?
Answer :
Actus reus Offence : The actus reus in criminal law consists of all elements of a crime other than the state of mind of the defendant. In particular, actus reus may consist of: conduct, result, a state of affairs or an omission.
An actus reus consists of more than just an act. It also consists of whatever circumstances and consequences are recognised for liability for the offence in question - in other words all the elements of an offence other than the mental element.
QU: How many ways actus reus offence may be commited ?
Answer :
The actus reus can be committed by an omission where there exists a duty imposed by law. There are three situations in which a duty may be imposed by law. These are where the defendant creates a dangerous situation, where there has been a voluntary assumption of responsibility and misconduct in a public office. Additionally an omission may be classified as part of a continuing act.
a). Creating a dangerous situation and failing to put it right:
R v Miller [1983] 2 AC 161 Case summary
b). Assumption of responsibility:
R v Stone & Dobinson [1977] 1 QB 354 Case summary
c). Misconduct in a public office:
R v Dytham [1979] Q.B. 722 Case summary
An omission can also be classed as part of a continuing act:
Fagan v MPC [1969] 1Q.B. 439 Case summary
QU: What do you mean by omission ?
Omission : Can a person be held criminally responsible for a failure to act? The general rule is that there can be no liability for failing to act, unless at the time of the failure to act the defendant was under a legal duty to take positive action:
(a) DUTY ARISING FROM STATUTE
Liability for failing to act will be imposed where the defendant can be shown to have been under a statutory duty to take positive action.
A leading example of such a case is provided by the Children and Young Persons Act 1933, which creates the offence of wilfully neglecting a child. Hence by simply failing to provide food for the child, or failing to obtain appropriate medical care, a parent could be held criminally liable for any harm that results. Another example is the Road Traffic Act 1988 which creates the offences of failing to provide a specimen when required to do so and failing to give a correct name and address when required to do so. See also:
Greener v DPP (1996) The Times, Feb 15 1996.
(b) DUTY ARISING FROM A CONTRACT
Where a person is under a positive duty to act because of his obligations under a contract, his failure to perform the contractual duty in question can form the basis of criminal liability. See:
R v Pittwood (1902) 19 TLR 37.
(c) PUBLIC DUTY
A person in a public office may be under a public duty to care for others.
(d) VOLUNTARY ASSUMPTION OF RESPONSIBILITY/RELIANCE
There is a common law duty of care where there is a relationship of reliance between defendant and victim. Thus if someone voluntarily assumes responsibility for another person then they also assume the positive duty to act for the general welfare of that person and may be liable for omissions which prove fatal.
(e) DUTY DUE TO DEFENDANT'S PRIOR CONDUCT
If the defendant accidentally commits an act that causes harm, and subsequently becomes aware of the danger he has created, there arises a duty to act reasonably to avert that danger.
QU: What do you mean by causation ? classify it .
Answer :
Causation : Causation refers to the enquiry as to whether the defendant's conduct (or omission) caused the harm or damage. Causation must be established in all result crimes. Causation in criminal liability is divided into factual causation and legal causation. Factual causation is the starting point and consists of applying the 'but for' test. In most instances, where there exist no complicating factors, factual causation on its own will suffice to establish causation. However, in some circumstances it will also be necessary to consider legal causation. Under legal causation the result must be caused by a culpable act, there is no requirement that the act of the defendant was the only cause, there must be no novus actus interveniens and the defendant must take his victim as he finds him (thin skull rule).
Factual causation
Factual causation is established by applying the 'but for' test. This asks, 'but for the actions of the defendant, would the result have occurred?' If yes, the result would have occurred in any event, the defendant is not liable. If the answer is no, the defendant is liable as it can be said that their action was a factual cause of the result.
R v White [1910] 2 KB 124 Case summary
Legal Causation
1. Legal causation requires that the harm must result from a culpable act:
R v Dalloway (1847) 2 Cox 273 Case summary
However, this does not apply where the offence is one of strict liability:
R v Williams [2011] 1 WLR 588 Case summary
2. The defendant's action need not be the sole cause of the resulting harm, but it must be more than minimal:
R v Benge (1865) 4 F. & F 504 Case summary
3. There must be no novus actus interveniens.
A novus actus interveniens is a new intervening act which breaks the chain of causation. Different tests apply to decide if the chain has been broken depending on the intervening party.
a). Act of a third party
The act of a third party will generally break the chain of causation unless the action was foreseeable:
R v Pagett (1983) 76 Cr App R 279 Case summary
b). The act of the victim
Where the act is of the victim, the chain of causation will not be broken unless the victim's actions are disproportionate or unreasonable in the circumstances:
R v Roberts [1971] EWCA Crim 4 Case summary
R v Williams & Davis [1992] Crim LR 198 Case summary
c) Medical intervention
Where medical intervention contributes to death, the courts have been inconsistent in their approach.
R v Jordan (1956) 40 Cr. App. E. 152 Case summary
R v Smith [1959] 2 QB 35 Case summary
R v Cheshire [1991] 1 WLR 844 Case summary
4. Thin skull rule (egg shell skull rule)
Under the thin skull rule, the defendant must take his victim as he finds him. This means if he has a particularly vulnerable victim he is fully liable for the consequences to them even if an ordinary person would not have suffered such severe consequences. For example if D commits a minor assault on V who has a heart condition and V suffers a heart attack and dies. D is liable for the death of V even though such an attack would result in no physical harm to some one without a heart condition.
This rule applies irrespective of whether the defendant was aware of the condition.
R v Hayward (1908) 21 Cox 692 Case summary
The thin skull rule also applies where the victim has refused medical treatment which would have saved them:
R v Holland (1841) 2 Mood. & R. 351 Case summary
R v Blaue [1975] 1 WLR 1411 Case summary
QU: How do you established the factual causation by crime , mention case refference . Answer :
Factual causation
Factual causation is established by applying the 'but for' test. This asks, 'but for the actions of the defendant, would the result have occurred?' If yes, the result would have occurred in any event, the defendant is not liable. If the answer is no, the defendant is liable as it can be said that their action was a factual cause of the result.
R v White [1910] 2 KB 124 Case summary
QU: How many requierments have to fulfill to established the legal causation ?
Answer
Legal Causation
1. Legal causation requires that the harm must result from a culpable act:
R v Dalloway (1847) 2 Cox 273 Case summary
However, this does not apply where the offence is one of strict liability:
R v Williams [2011] 1 WLR 588 Case summary
2. The defendant's action need not be the sole cause of the resulting harm, but it must be more than minimal:
R v Benge (1865) 4 F. & F 504 Case summary
3. There must be no novus actus interveniens.
A novus actus interveniens is a new intervening act which breaks the chain of causation. Different tests apply to decide if the chain has been broken depending on the intervening party.
a). Act of a third party
The act of a third party will generally break the chain of causation unless the action was foreseeable:
R v Pagett (1983) 76 Cr App R 279 Case summary
b). The act of the victim
Where the act is of the victim, the chain of causation will not be broken unless the victim's actions are disproportionate or unreasonable in the circumstances:
R v Roberts [1971] EWCA Crim 4 Case summary
R v Williams & Davis [1992] Crim LR 198 Case summary
c) Medical intervention
Where medical intervention contributes to death, the courts have been inconsistent in their approach.
R v Jordan (1956) 40 Cr. App. E. 152 Case summary
R v Smith [1959] 2 QB 35 Case summary
R v Cheshire [1991] 1 WLR 844 Case summary
4. Thin skull rule (egg shell skull rule)
Under the thin skull rule, the defendant must take his victim as he finds him. This means if he has a particularly vulnerable victim he is fully liable for the consequences to them even if an ordinary person would not have suffered such severe consequences. For example if D commits a minor assault on V who has a heart condition and V suffers a heart attack and dies. D is liable for the death of V even though such an attack would result in no physical harm to some one without a heart condition.
This rule applies irrespective of whether the defendant was aware of the condition.
R v Hayward (1908) 21 Cox 692 Case summary
The thin skull rule also applies where the victim has refused medical treatment which would have saved them:
R v Holland (1841) 2 Mood. & R. 351 Case summary
R v Blaue [1975] 1 WLR 1411 Case summary
QU: How any chain of causation may be broken mention case refference .
Answer : The chain of causation is a fragile concept, easily broken.â Discuss.The chain of causation is a series of events that establishes if the defendantâs act caused harm. Causation can be divided into factual and legal causation. For the purpose of my essay, I will be focusing on legal causation. The key test for legal causation is by proving that the defendantâs act is an operating and substantial causeâ. The chain of causation can be broken through proving the existence of the ânovus actus interveniensâ, as a âfree, voluntary and informed actâ of a third party, rendering the original act no longer a substantial and operating cause of the result.
In my essay, I will be arguing that the chain of causation cannot be easily broken for several reasons. Firstly, for an act to be ânovus actus interveniensâ, it needs to be âfree, voluntary and informedâ. This leads to an increased difficulty for the existence of a ânovus actus interveniensâ as the term âvoluntaryâ can be interpreted broadly. Additionally, it is excluded from being âfree, voluntary and informedâ if it can be justified. Secondly, the courts have shown a reluctance to render a defendantâs action no longer an operating and substantial clause. This is most apparent in medical negligence cases. Thirdly, the courts identified certain circumstances that limit the chain of causation from being broken. This is considered in cases where there is an act of the victim, the victim may have a âthin skullâ, an event of nature and where there are intended results by the defendant.
Firstly, the chain of causation is not easily broken as what constitutes a âfree voluntary and informedâ can be taken broadly. Hart and Honoré assert that âvoluntary is given quite an extended meaningâ, that can be based on several principles. [1] One of the principles, is where âbehavior is to be considered an intervening cause, such behavior cannot consist of involuntary bodily movement.â This is best exemplified where Guy pushes Mary into Ivy who suffers injuries. Guy is said to have caused the injuries as Mary was not acting in a voluntary way so her âactâ could not constitute a ânovus actus interveniensâ. This principle was extended further in Wise v Dunning[2]
QU: What do you mean by means rea ? classify it .
Answer : Mens rea
Mens rea refers to the crime's mental elements of the defendant's intent. This is a necessary element—that is, the criminal act must be voluntary or purposeful. Mens rea is the mental intention (mental fault), or the defendant's state of mind at the time of the offense, sometimes called the guilty mind. It stems from the ancient maxim of obscure origin, "actus reus non facit reum nisi mens sit reas" that is translated as "the act is not guilty unless the mind is guilty."[4] For example, the mens rea of aggravated battery is the intention to do serious bodily harm. Mens rea is almost always a necessary component in order to prove that a criminal act has been committed.[2][3]
Mens rea varies depending on the offense. For murder, the mental element requires the defendant acted with "malice aforethought". Others may require proof the act was committed with such mental elements such as "knowingly" or "willfulness" or "recklessness". Arson requires an intent to commit a forbidden act, while others such as murder require an intent to produce a forbidden result. Motive, the reason the act was committed, is not the same as mens rea and the law is not concerned with motive.[2]
Although most legal systems recognize the importance of the guilty mind, or mens rea, exactly what is meant by this concept varies. The American Law Institute's Model Penal Code has reduced the mental states to four. In general, guilt can be attributed to an individual who acts "purposely," "knowingly," "recklessly," or "negligently." Together or in combination, these four attributes seem basically effective in dealing with most of the common mens rea issues.[5]
QU: What do you mean by direct and indirect intention ? Answer :
Direct Intention : This is the most straightforward form of intention. This is where the consequences of the defendants actions (or his attempt to carry actions out) are desired.
Indirect Intention : here is a slight blurring between indirect intention, and recklessness ,indirect intention and recklessness are not however the same thing.
QU: What do you mean subjective and objective recklessness ?
Answer:
Subjective recklessness : The subjective component of the definition of “recklessly” requires proof that the defendant was aware that she was running a serious risk – more specifically, that the defendant “consciously disregard[ed]” a “substantial and unjustifiable risk.”
Objective recklessness : The objective component requires proof that the defendant’s conduct must be a “gross deviation” from the “standard of care that a law-abiding person would observe” in the defendant’s situation.
QU: Write Short note …………. 1, Volenti non fit injuries 2, Act of state , 3, Act of judiciary 4, Act of god
Answer : Volenti non fit injuries : Latin term meaning “to one who is willing, no harm is done.” This doctrine holds that a person who knowingly and willingly puts himself in a dangerous situation cannot later on sue for any resulting injuries. Volenti non fit injuria is a defense in tort. If a person engages in an event accepting and being totally aware of the risks inherent in that event, then such person can not later complain of, or seek compensation for an injury suffered during the event. Volenti non fit injuria is used often to defend against tort actions as a result of a sports injury.
Act of state : This doctrine says that a nation is sovereign within its own borders, and its domestic actions may not be questioned in the courts of another nation. Each sovereign state has complete control over the laws within its own borders and that its acts cannot be questioned in the courts of another state.
The act-of-state doctrine is a common-law principle that prevents U.S. courts from questioning the validity of a foreign country's sovereign acts that take place within its own territory. The "Act of State Doctrine" says that courts should not decide cases that would interfere with their country's foreign policy.
Act of judiciary : The judiciary (also known as the judicial system) is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes. Under the doctrine of the separation of powers, the judiciary generally does not make law (that is, in a plenary fashion, which is the responsibility of the legislature) or enforce law (which is the responsibility of the executive), but rather interprets law and applies it to the facts of each case. This branch of the state is often tasked with ensuring equal justice under law. It usually consists of a court of final appeal (called the "Supreme court" or "Constitutional court"), together with lower courts.
Act of god : A manifestation especially of a violent or destructive natural force, such as a lightning strike or earthquake, that is beyond human power to cause, prevent, or control.
In the law of contracts, an act of God may be interpreted as an implied defence under the rule of impossibility or impracticability. If so, the promise is discharged because of unforeseen occurrences, which were unavoidable and would result in insurmountable delay, expense, or other material breach.
In the law of torts, an act of God may be asserted as a type of intervening cause, the lack of which would have avoided the cause or diminished the result of liability (e.g., but for the earthquake, the old, poorly constructed building would be standing). However, foreseeable results of unforeseeable causes may still raise liability.
when anyone give a man money to kill 'k', then what will be punishment of killer and money giver?
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