MANU/CG/0035/2014

Equivalent/Neutral Citation: AIR2014C hh133

IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR

Writ Petition (C) No. 2163 of 2009
Decided On: 11.04.2014
People's Union for Civil Liberties (PUCL) and Ors. Vs. The Union of India and Ors.
Hon'ble Judges/Coram:
Yatindra Singh, C.J. and Prashant Kumar Mishra, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Smt. Sudha Bhardwaj, Advocate
For Respondents/Defendant: Shri J.K. Gilda, Advocate General for the State, Smt. Fouzia
Mirza, Assistant Solicitor General for the Union of India
Case Note:
Civil - Unlawful organization - Declaration of - Article 254(2) of Constitution
of India and Chhattisgarh Vishesh Jan Suraksha Adhiniyam, 2005(Act) -
Present petition filed for challenging validity of Act and notification by which,
six organization was declared as 'unlawful organizations' - Whether
notification was sustainable when State had no legislative competence to
enact such Act - Held, Act was enacted to deal with naxal problems existing
in state, which was covered under Item-I of State-List, in which State can
make law relating to public order - Act has received assent of President in
2006 and in view of Article 254(2), it prevails over any central legislation in
case of any discrepancy between two - Thus, State legislature had legal
competence to enact Act - Organisation as unlawful organization could be
continued for period of one year provided being approved by Advisory Board,
which may be extended for further period of one year - In present case,
alleged notification was for period of one year, thereafter, it was again
extended for period of one year - Notifications declaring six organisations as
'unlawful organisations' was approved by Advisory Board, against which no
revision was filed - Notifications were replaced by new notifications which
were duly approved by Advisory Board - Declaration of organisations as
'unlawful organisations' cannot be held to be illegality - Petition dismissed.
[paras 23, 25, 29, 73, 75 and 80]
ORDER
1. People's Union for Civil Liberties (PUCL) has filed this writ petition challenging the
validity of the Chhattisgarh Vishesh Jan Suraksha Adhiniyam, 2005 (the Act) and the
notifications dated 12.04.2006 and 12.04.2007 (the Notifications) declaring six
organisations as 'unlawful organisations' under the Act.
The Facts
2 . Naxal movement started in village Naxalbari in West Bengal and was result of the
split in Communist Party of India (Marxist) in the year 1967.

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3 . There may be some debate as to the initial motive of the movement, but as time
went by, it lost its track and at present, it is off the track. It has adopted undemocratic
methods; hampers development; extracts illegal money not only from the big
corporations but also from people in general; and commits all kinds of crimes including
murders. It started creating law and order problems.
4 . The Parliament enacted the Unlawful Activities (Prevention) Act, 1967 (the Central-
Act) in order to curb its menace.
5. In times thereafter, it spread to other adjoining States namely Chhattisgarh, Orissa,
Andhra Pradesh, Jharkhand, Bihar, and Maharashtra through underground guerrilla
groups.
6. As the naxal movement spread to other States, it started creating problems in those
States as well. The States enacted their law to meet its menace and the State of
Chhattisgarh also enacted the Act to control it.
7 . The State also declared six organisations as unlawful organisations on 12.04.2006
for a year. It was extended from time to time and at present the six organisations are
declared as unlawful organisations.
8 . PUCL has filed this writ petition challenging vires of the Act and declaration of the
organisations as 'unlawful organisations' by the Notifications.
Points for Determination
9 . We have heard the counsel for the parties. The following points arise for
determination in the case:
(i) Whether the State has got legislative competence to enact the Act;
(ii) Whether the Act is arbitrary, unreasonable, and violative of article 14 of the
Constitution;
(iii) Whether the Act is violative of article 19(1)(c) of the Constitution;
(iv) Whether the Notifications are illegal.
Preliminary Objections
10. The counsel for the Respondents place reliance on some decisions (see below)1 and
raise the following preliminary objections:
• The validity of the Act can be challenged by an aggrieved person and not by
an unaggrieved person;
• PUCL is not an aggrieved person. It has no right to challenge the vires of the
Act or the Notifications;
• In this writ petition, the question regarding validity of the Act is academic. It
should not be decided;
• Though, this WP is not a public interest litigation (PIL), but it is in nature of
the same. The question regarding validity of an enactment should not be
challenged in a PIL.

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11. There is some substance in the preliminary objections raised by the counsel for the
Respondents. The persons affected under the Act or by the Notifications have not
challenged their validity. They have not come forward to file any writ petition. PUCL is
not an aggrieved person.
1 2 . Nevertheless, this writ petition was filed before the Supreme Court and was
dismissed with liberty to the PUCL to file it before the High Court. The parties have also
argued the case on merits; they have requested us to decide it on merits, and we
proceed to decide it.
1st Point: State has Competence
Submissions of the Parties
13. The counsel for the PUCL places reliance upon a decision (see below)2, and submits
that:
• The State has no legislative competence to enact the State Act under item 3 of
List III (the Concurrent List) of seventh Schedule of the Constitution;
• The naxal problem is not only limited to the State of Chhattisgarh, but covers
many other adjoining States namely West Bengal, Orissa, Andhra Pradesh,
Jharkhand, Maharashtra, and Bihar. It is more than public order;
• The Act can also not be justified under item 1 of List II (state List) of the
seventh Schedule of the Constitution.
14. The counsel for the Respondents place reliance on the rulings (see below)3 and
submit that the State has got power to legislate the Act under Item 1 of the State List.
15. In the alternative, the counsel for the Respondents submit that:
• In case the Act is not covered under Item 1 of the State List, then it will be
covered under Item 1 of the Concurrent List;
• It will prevail over the other central legislation as the Act has received assent
of the President on 07.03.2006.
Covered under Item-I of the State List
16. Part XI of the Constitution is titled as 'Relations between the Union and the States.'
Chapter-I of this part is titled as 'Legislative Relations.' Articles 245 to 255 are in this
chapter.
17. Article 245 of the Constitution is titled as 'Extent of laws made by Parliament and
by the Legislatures of States'. It provides that legislature of a State may make laws for
the whole or any part of the State.
1 8 . Article 246 of the Constitution is titled as 'Subject-matter of laws made by
Parliament and by the Legislatures of States'. It provides that:
• The Parliament has exclusive power to make laws with respect to any of the
matters enumerated in List-I (the Union List) of the Seventh Schedule;
• The Parliament as well as the State has a power to make laws with respect to
any of the matters enumerated in List-III (the Concurrent List) in the Seventh

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 Schedule; and
• The State has power to make laws with respect to any of the matters
enumerated in List-II (the State List).
19. Article 254 of the Constitution is titled as 'Inconsistency between laws made by
Parliament and laws made by the Legislature of States'. It provides that in case of any
conflict between the law enacted by the State and the Parliament in respect of the
matters enumerated in the Concurrent List, then the law made by the Parliament shall
prevail in that State. However, the State law is saved, if the President had given assent
to the same.
20. The objects and reasons of the Act states that it was enacted in order to provide for
effective control and prevention of unlawful activities of individuals and organisations
that are involved in the disruptive activities, adversely affecting the security and
development of the State by creating terror and fear (see below for the original objects
and reasons in Hindi)4.
2 1 . The preamble of the Act states that the Act is to provide for more effective
prevention of certain unlawful activities of individuals and organisations and matters
connected thereto.
22. Item 1 of the State List is as follows:
1. Public order (but not including the use of any naval, military or Air force or
any other armed force of the Union or of any other force subject to the control
of the Union or of any contingent or unit thereof in aid of the civil power.
23. We have no reason to doubt that naxal problem is affecting public order. The Act
was enacted to deal with it. It is covered under Item-I of the State-List.
24. The counsel for the PUCL submits that:
• In order to deal with the naxal problems, the forces under control of the
Union are deployed;
• The problem is inter-state and is grave;
• The situation is beyond public order and is not covered under Item I of the
State List.
25. The meaning of Item 1 of the State List is that the State can make law relating to
public order but it cannot make use of armed forces of the Union or any other forces
under the control of the Union thought it may use the State machinery to curb the same.
2 6 . Irrespective of the situation prevailing in the State, the naxal activities include,
killing of innocent people and use of violent means to disturb the development of the
State. It is within public order. The State is competent under Item 1 of the State List to
enact the Act.
27. The forces under the control of the Union are deployed in the State but they are not
deployed under the Act. It cannot be said that the Act is beyond Item 1 of the of the
State List.
28. Even if the submission of the counsel for the PUCL is taken that the situation is

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beyond public order and is not covered under Item 1 of the State List, then it would
undoubtedly be covered under Item 1 of the Concurrent List, which is as follows:
1. Criminal law, including all matters included in the Indian Penal Code at the
commencement of this Constitution but excluding offences against laws with
respect to any of the matters specified in List I or List II and excluding the use
of naval, military or air forces or any other armed forces of the Union in aid of
the civil power.
2 9 . There is no dispute that the Act has also received assent of the President on
07.03.2006 and in view of article 254(2) of the Constitution, it prevails over any central
legislation in case of any discrepancy between the two.
30. In our opinion, the State legislature has legal competence to enact the Act.
2nd Point: not Unreasonable or Arbitrary or Violative of Article 14
31. The counsel for the PUCL places reliance on some rulings (see below)5 in support
of the second point, and submits that:
(i). The words 'unlawful activity' and 'unlawful organisation' are vaguely
defined in the Act, rendering it unreasonable, arbitrary and violative of Article
14 of the Constitution;
(ii). The 'unlawful activities' are also covered under the Chapters VII (Of
Offences Relating to the Army, Navy and Air Force), IX (Of Offences by or
Relating to Public Servants), and X (Of Contempts of the Lawful Authority of
Public Servants) of the Indian Penal Code (IPC). There is no proper guideline as
to when an offender would be prosecuted under the Act or under the IPC. This
renders the Act to be violative of Article 14 of the Constitution;
(iii). Section 8(5) of the Act provides a punishment of seven years; whereas,
section 8(1) and (2) provides only three years and two years. This is arbitrary;
(iv). Under the Act the District Magistrate has been given power to notify the
place used for the purposes of unlawful activity; whereas, under the Central-
Act, the Central Government can notify the place. The power under the Act is
conferred on a petty officer. This is arbitrary;
(v). The penalties under the Act do not include mens rea; whereas, similar
penalties under the Central-Act incorporate mens rea. This is unreasonable.
First Submission
32. Section 2 of the Act is a definition section. Sub-section (e) of section 2{2(e)} of
the Act defines the word 'unlawful activity'. Clauses (i) to (vii) of section 2(e) of the Act
explain what are the unlawful activities.
33. Section 2(e) is as follows:
2. In this Act, unless the context otherwise, requires,-
(e) "Unlawful Activity" in relation to and individual or organization
means any action taken by such individual or organization whether by
committing an act or by words either spoken or written or by signs or

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 by visible representation or otherwise;
(i) which constitute a danger or menace to public order, peace
and tranquillity; or
(ii) which interferes or tends to interfere with maintenance of
public order; or
(iii) which interferes or tends to interfere with the
administration of law or its established institutions and
personnel; or
(iv) which is designed to overawe by criminal force or show of
criminal force or otherwise to any public servant including the
force of the State Government or the Central Government in
the exercise of the lawful powers of such public servant.
(v) of indulging in or propagating acts of violence, terrorism,
vandalism or other acts generating fear and apprehension in
the public or indulging in or encouraging the use of firearms,
explosives and other devices or disrupting communications by
rail or road; or
(vi) of encouraging or preaching disobedience to established
law and its institutions; or
(vii) of collecting money or goods forcibly to carry out any one
or more of the unlawful activities mentioned above;
34. Section 2(e) of the Act essentially provides that if an individual or organisation
takes any action by committing an act by words either spoken or written or by signs or
by visible representation which constitute the different actions mentioned in clauses (i)
to (vii) of section 2(e) of the Act, then that amounts to unlawful activity.
35. Different clauses of section 2(e) of the Act provide the activities that interfere with
the maintenance of the public order, peace and tranquillity or collecting money or goods
to carry out any of the other illegal activities mentioned in sub-clauses (i) to (vii).
There is no vagueness in them.
36. The word 'unlawful activity' is also defined under the Central-Act. It is as follows:
2. Definitions.-(1) In this Act, unless the context otherwise requires,-
(o) "unlawful activity", in relation to an individual or association,
means any action taken by such individual or association (whether by
committing an act or by words, either spoken or written, or by signs or
by visible representation or otherwise),-
(i) which is intended, or supports any claim, to bring about, on any
ground whatsoever, the cession of a part of the territory of India or the
secession of a part of the territory of India from the Union or which
incites any individual or group of individuals to bring about such
cession or secession; or
(ii) which disclaims, questions, disrupts or is intended to disrupt the

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 sovereignty and territorial integrity of India; or
(iii) which causes or is intended to cause disaffection against India.
3 7 . The definition of unlawful activity under the Central-Act is similar but is with
reference to the sovereignty and territorial integrity of India; whereas, under the Act,
unlawful activity is defined with reference to the public order. This difference between
the two is for the reason that both the enactments are enacted under different entries,
which permit them to enact the law.
38. Section 2(f) of the Act defines the word 'Unlawful Organisation'. It is as follows:
Unlawful Organisation' means any organisation which indulges in or has for its
object abets or assists or give aid, succor or encouragement directly indirectly,
through any medium device or otherwise to any unlawful activity.
39. Section 2(f) of the Act explains that an organisation indulging or having its object
to abet, assist or giving aid or encouragement directly or indirectly to the unlawful
activities is an unlawful organisation. There is no vagueness.
40. Section 2(1)(p) of the Central-Act defines the words 'Unlawful Association'. It is as
follows:
2. Definitions.--(1) In this Act, unless the context otherwise requires,--
(p) 'unlawful association' means any association,--
(i) which has for its object any unlawful activity, or which encourages
or aids persons to undertake any unlawful activity, or of which the
members undertake any such activity; or
(ii) which has for its object any activity which is punishable under
section 153A or section 153B of the Indian Penal Code (45 of 1860), or
which encourages or aids persons to undertake any such activity, or of
which the members undertake any such activity:
Provided that nothing contained in sub-clause (ii) shall apply to the
State of Jammu and Kashmir;
41. The definition of unlawful association in the Central-Act is differently worded than
the Act but import is the same.
42. In our opinion, the words 'unlawful activities' and 'unlawful association' are not
vaguely defined in the Act.
Second Submission
43. An illegal act may be an offence under different sections of the same enactment or
under different enactments. A person accused of committing that act is required to be
prosecuted under all those sections in the same enactment or sections of the different
enactments. There is no question of choosing between them or providing guidelines for
the same.
44. In case, a person has done an act which is an offence under the Act as well as
under the IPC, then that person is required to be prosecuted under both the enactments

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and there is no question of providing any guidelines for choosing either one. Both
should be chosen. There is neither arbitrariness or unreasonableness. There is no
discrimination as well.
Third Submission
45. Section 8 of the Act provides punishment for different offences:
• Sub-section (1) of section 8{8(1)} of the Act provides where the member of
unlawful organisation takes part in the meeting or activities or contributes or
receives any contribution for the purpose of such organisation, its punishment
is three years;
• Sub-section (2) of section 8{8(2)} of the Act provides the punishment of two
years for the similar action if the person was not a member of the unlawful
organisation;
• Sub-section (5) of section 8{8(5)} of the Act provides that whoever commits
or abets or attempts to commit or plans to commit any unlawful activity in any
specified area shall be punished with imprisonment for seven years for this
activity.
46. The offence mentioned under section 8(5) of the Act is different from the offence
mentioned in sections 8(1) and 8(2) and in case the offence is different, then the
different punishment can always be provided. Merely because different or higher
punishment is provided for different offence, it cannot be said that it is unreasonable.
Fourth Submission
47. Section 8 of the Central-Act confers power on the Central Government to notify the
place used for the purpose of unlawful organisation. In contradistinction, section 9 of
the Act empowers the District Magistrate to notify the place used for the purpose of
unlawful activities.
48. The District Magistrate is not Central Government or the State Government. He is an
officer of lower rank. But merely for this reason the provision cannot be said to be
arbitrary or unreasonable.
49. The District Magistrate is the highest officer in the District. He is best informed
about the activities that are being done in that district. He is the fittest person to notify
such place.
50. In our opinion, it cannot be said that conferment of power on the District Magistrate
is unreasonable or arbitrary.
Fifth Submission
51. The English criminal law is mostly the common law, the judge-made law and mens
rea forms an important ingredient of the same. However, the Indian criminal law is
statutory law and the position is different.
5 2 . In our country, in criminal law, mens rea is included in the section itself. The
legislature in its wisdom includes different levels of mens rea in defining a particular
offence according to the situation prevailing in the society. It is best explained by Shri
M.C. Setalwad in his classic 'The Common Law in India' (see Appendix-I).

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53. A penal provision may be struck down as discriminatory but an illegal act affecting
public order may not be struck down merely for the reason that it does not encompass
mens rea.
54. Nevertheless, we refrain from finally deciding this submission of the counsel for the
PUCL as this writ petition is not by an aggrieved person. We leave it to be decided in an
appropriate case where an affected person raises this question. This submission may be
raised at that time and decided in accordance with law.
55. In our opinion, the Act is not unreasonable, arbitrary or violative of article 14 of the
Constitution.
3rd Point: not Violative of Article 19(1)(c)
5 6 . The counsel for the Petitioners, places reliance on a decision (see below)6 and
submits that:
• Sub-clause (c) of clause (1) of Article 19{19(1)(c)} of the Constitution
guarantees freedom to form association;
• The objects and reasons of the Act show that the Act was enacted to control
and prevent the adverse affect on development;
• No restriction can be placed under clause (4) of Article 19 {19(4)} of the
Constitution to restrict the right under Article 19(1)(c) of the Constitution to
prevent the adverse affect on development;
• The provisions of the Act are violative of Article 19(1)(c) of the Constitution
of India.
5 7 . Article 19 of the Constitution is titled as 'Protection of certain rights regarding
freedom of speech, etc.' Article 19(1)(c) of the Constitution guarantees the right to form
association or unions.
58. Article 19(4) of the Constitution permits the State to impose reasonable restrictions
in the interest of the sovereignty and integrity of India, or public order, or morality.
59. Under article 19(4) of the Constitution, apart from other reasons, the State can
impose reasonable restrictions in the interest of public order.
60. While dealing with the second point, we have already held that the restrictions are
reasonable. The only question is, whether they are in the interest of public order or not?
61. According to the counsel for the PUCL,
• The object and reasons show that the restrictions are to curb the disturbance
in the development;
• This is not part of public order;
• The restrictions cannot be imposed under article 19(4) of the Constitution.
62. The import of the Act is to be seen by different sections and not by objects and
reasons. Even if the objects and reasons are to be taken into account, they talk about
the adverse effect because of the terror and fear. In case, the development is affected

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because of terror and fear, it is undoubtedly a problem of public order. The State can
impose reasonable restrictions to control the same: it is covered by public order.
63. In our opinion,
• The restrictions are reasonable;
• They have been imposed in the interest of public order;
• The Act is not violative of article 19(1)(c) of the Constitution.
4th Point: Notifications--not Illegal
64. The counsel for the PUCL places reliance on a decision (see below)7 and submits
that:
• Six organisations were declared to be unlawful organisation for a period of
one year by the notification dated 12.04.2006. This was again extended for a
period of one year on 12.04.2007;
• However, the Advisory Board itself was constituted on 22.05.2007 i.e. an year
after the initial declaration;
• The entire initial period of declaring the organisation unlawful was illegal as
there was no recommendation of the Advisory Board regarding declaration.
65. Section 3 of the Act is titled as 'declaration of organisation as unlawful'. Under this
section, if the State Government is of the opinion that the organisation has become an
unlawful organisation, then it may declare such organisation to be unlawful.
66. Nevertheless, mere opinion of the State Government is not sufficient to continue
the organisation as unlawful organisation. It can continue for a period of one year
provided that it is approved by the Advisory Board. This may be extended for a further
period of one year at a time.
67. Section 4 of the Act is titled as 'representation by organisations'. It permits the
unlawful organisation to make representation and it is to be considered by the Advisory
Board.
68. Section 5 of the Act is titled as 'constitution and reference to the Advisory Board'. It
provides constitution of three member Advisory Board. These three members should be
or have been or qualified to be appointed as judges of the High Court.
6 9 . Section 6 of the Act is titled as 'Procedure of the Advisory Board'. It provides
submission of the report of the Advisory Board after giving opportunity of personal
hearing.
70. Section 7 of the Act provides that the government is bound to act in accordance
with the report of the Advisory Board.
71. Section 12 of the Act is titled as 'Revision'. It provides a revision before the High
Court against the notification of the government under section 3(1) of the Act or its
confirmation under section 7(1) of the Act i.e. to say that the orders/notifications
declaring an organisation to be 'unlawful organisation' is subject to revisional
jurisdiction of the High Court. The High Court can see the legality, correctness or

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propriety of the order/notification.
72. The initial opinion/order/notification of the Government as well as its confirmation
after report of the Advisory Board is subject to judicial scrutiny of the High Court. It
shows that the provision cannot be unreasonably exercised. There are sufficient
safeguards. The provision cannot be said to be unreasonable.
73. Initially, the notification dated 12.04.2006 was for a period of one year. Thereafter,
it was again extended for a period of one year on 12.04.2007.
74. It is correct that the Advisory Board was constituted on 22.05.2007 i.e. to say more
than a year after the initial notification dated 12.04.2006. However, the relevant point
to note is that the writ petition itself was filed on 06.04.2009, that is to say even after
expiry of one year of the period of the notification dated 12.04.2007.
75. It is not disputed that the subsequent notifications declaring the six organisations
as 'unlawful organisations' have already been approved by the Advisory Board. At
present, the Advisory Board consists of three senior-most judges of this court. They
have approved the declaration. No revision has been filed against the same.
76. The fact that at the initial stage, there may be some illegality in not constituting the
Advisory Board or not obtaining its opinion, but it cannot be quashed at this stage,
when the fresh notifications have been issued and they have been approved by the
Advisory Board; especially when they are neither challenged by that organisation nor
any revision under section 12 of the Act has been filed.
A Suggestion
77. While hearing the third submission in the second point, it came to our notice that
section 8(5) of the Act used the words 'specified area'. It is nowhere defined in the Act.
This point was not taken by the Petitioners in the writ petition and as such it was not
replied in the return.
78. The counsel for the Respondents also could not point out any provision defining the
words 'specified area'. They submit that once the area is notified by the District
Magistrate, it becomes specified area.
79. We do not wish to adjudicate upon the question, whether the words 'specified area'
used in section 8(5) of the Act are same as the area notified by the District Magistrate
under section 9(1) of the Act or not. However, it would be better for the State
Government to provide appropriate amendments in the Act.
Conclusions
80. Our conclusions are as follows:
(a) The State has got the legislative competence to enact the Chhattisgarh
Vishesh Jan Suraksha Adhiniyam, 2005;
(b) Chhattisgarh Vishesh Jan Suraksha Adhiniyam, 2005 is not arbitrary,
unreasonable or violative of article 14 of the Constitution. It is also not
violative of article 19(1)(c);
(c) The notifications dated 12.04.2006 and 12.04.2007 have out-lifted their
utility. Their place has been taken by the new notifications that are approved by

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 the Advisory Board. The declaration of the organisations mentioned in those
notifications as 'unlawful organisations' cannot be held to be illegal;
(d) The question whether mens rea is included in the penal provisions of the
Chhattisgarh Vishesh Jan Suraksha Adhiniyam, 2005 or not and what is the
meaning of 'specified area' under section 8(5) of the Act may be decided in an
appropriate case.
81. In view of our conclusions, there is no merit in the writ petition. It is dismissed
with the observation mentioned in clause (d) of the preceding paragraph.

APPENDIX-I
Shri MC Setalvad in his book 'The Common Law in India' under title 'Criminal Law' sub-
title 'mens rea' observes as follows:
The recognition of a mental element in criminal liability is inherent in the
English common law. The traditional maxim "actus non facit reum nisi mens sit
rea" expresses, it has been said, a cardinal doctrine of English law.8 Lord
Kenyon C.J. Said that the maxim was "a principle of natural justice, and of our
law.... The intent and the act must both concur to constitute a crime." The
maxim accepted in English courts for centuries, recognises, it is said "that there
are two necessary element in crime, a physical element and a mental element."
At common law no man may be found guilty of the crime unless, in addition to
any overt act which the law forbids or default in doing some act which the law
enjoins, he had at the time a legally reprehensible state of mind that is to say
mens rea or a guilty mind9.
But our law penal law is statutory and Shri Setalvad further explains:
The true position in regard to mens rea in statutory offences would appear to
be as stated in Halsbury10. "A statutory crime may or may not contain an
express definition of the necessary state of mind. A statute may require a
specific intention, malice, knowledge, willfulness, or recklessness. On the other
hand, it may be silent as to any requirement of mens rea, and in such a case in
order to determine whether or not mens rea is an essential element of the
offence, it is necessary to look at the objects and terms of the statute. In some
cases, the courts have concluded that despite the absence of express language
the intention of the legislature was that mens rea was a necessary ingredient of
the offence. In others, the statute has been interpreted as creating a strict
liability irrespective of mens rea.
Unlike in England all offences in India, excepting contempts of the courts of
record like the Supreme Court and the High Courts, are statutory. The offences
defined in Penal Code and also in various other statutes incorporate in the
definition of the offence itself the guilty mind needed in order that the crime
may be committed. Under the English common law mens rea may vary from
crime to crime. So does it vary in the Indian statutory definitions of crime.
What the Indian Code seems to have done is to incorporate into the common
law crime the mens rea needed for that particular crime so that the guilty
intention in generally to be gathered not from the common law but from the
statute itself. This may be regarded as a modification of the common law

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 worked into the code by Macaulay and his colleagues to make it suit Indian
conditions. By adopting this course they have also avoided the doubt and
obscurity which has not frequently arisen in regard to the mens rea required for
certain common law crimes like homicide, assault and false imprisonment. It
has been pointed out that the English system, in which changes in the law are
made gradually by judicial decisions, has often created a situation in which old
and new doctrines have been employed in the course of the same period,
according as the judges are inclined one way or the other, giving rise to
conflicting principles with puzzling results.11 Such uncertainty cannot exist in
India as the necessary guilty mind is indicated in the statutory definition of the
crime.
In a sense, therefore, it may be said that maxim "actus non facit reum nisi
mens sit rea" has, as a maxim, no application to offences under the Code. By
specifying the varying guilty intention for each offence the Code has in effect
built the maxim into each of its definitions and given it statutory effect. Where
the Code omits to indicate a particular guilty intent, the presumption, having
regard to the general frame of the definitions, would be that the omission must
be intentional. In such cases it would perhaps not be permissible to import the
maxim in arriving at a conclusion whether the person charged with that
particular offence has been guilty.
Headlines
Chhattisgarh Vishesh Jan Suraksha Adhiniyam, 2005 is valid.
1 The cases relied upon by the counsel for the Respondents are as follows:
(i) Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra & Others,
MANU/SC/0939/2012 : AIR 2013 SC 58.
(ii) Anand Sharadchandra Oka Vs. University of Mumbai & Others,
MANU/SC/7106/2008 : AIR 2008 SC 1289.
(iii) D. Nagaraj & others Vs. State of Karnataka & Others, MANU/SC/0319/1977
: (1977)2 SCC 148.
(iv) Bhagwan Dass vs. State of UP & Others, MANU/SC/0349/1976 : (1976)3
SCC 784.
(v) Jonala Narsimharao & Company & others, etc. Vs. State of Andhra Pradesh
& Others, MANU/SC/0609/1971 : (1971)2 SCC 163.
(vi) Kusum Ingots & Alloys Ltd. Vs. Union of India & another,
MANU/SC/0430/2004 : (2004) 6 SCC 254.
(vii)Govt. of National Capital Territory, Delhi Vs. Inder Pal Singh Chadha &
others, MANU/SC/1246/2001 : (2002)9 SCC 461.
(viii)Sanjeev Coke Manufacturing Company Vs. M/s. Bharat Coking Coal Ltd. &
another, MANU/SC/0040/1982 : (1983)1 SCC 147
(ix) S.P. Gupta & Others Vs. President of India & Others, MANU/SC/0080/1981
: AIR 1982 SC 149.

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2 LifeInsurance Corporation of India v. Vishwanath Verma and Others,
MANU/SC/1597/1994 : 1994 Supp (3) SCC 569
3 The cases relied by the counsel for the Respondents are as follows:
(i) Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and Others,
MANU/SC/0289/2010 : (2010) 5 SCC 246;
(ii) Bharat Hydro Power Corpn. Ltd. and Others v. State of Assam and another,
MANU/SC/0010/2004 : (2004) 2 SCC 553; and
(iii) M. Karunanidhi v. Union of India and Another, MANU/SC/0159/1979 :
(1979) 3 SCC 431
4 The Hindi version of the objects and reasons of the bill is as follows:

5 The counsel for the PUCL places reliance on the following rulings:
(i) Life Insurance Corporation of India v. Vishwanath Verma and Others,
MANU/SC/0039/1995 : 1994 Supp(3) SCC 569;
(ii) Anwar Ali Sarkar v. The State of West Bengal, {MANU/WB/0163/1951 : AIR
(39) 1952 Cal 150}; and
(iii) State of Madras v. VG Row, {MANU/SC/0013/1952 : AIR 1952 SC 196}
6The counsel for the Petitioners places reliance on Anwar Ali Sarkar v. The State of
West Bengal, MANU/WB/0163/1951 : AIR (39) 1952 Cal 150
7 7Life Insurance Corporation of India v. Vishwanath Verma and Others,
MANU/SC/1597/1994 : 1994 Supp(3) SCC 569.
8 Younghusband v. Luftig [1949] 2 K.B. 354, 370, Goddard L.C.J.
9 Kenny's Outlines of Criminal Law, op. Cit., pp. 12-13, 35; Halsbury, 3rd ed., Vol. 10,
pp. 272-273, para 505
10 Halsbury, Laws of England, 3rd Ed., Vol. 10, p. 273, para. 508.
11 Kenny, Outlines of Criminal Law, op. Cit., p. 25
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