1
PSA Pillai: Criminal Law,12th Edition/PSA Pillai Criminal Law 2014/CHAPTER 1 Nature of Crime
CHAPTER 1
Nature of Crime
INTRODUCTION
Personal safety, particularly security of life, liberty and property, is of utmost importance to any individual.
Maintenance of peace and order is essential in any society for human beings to live peacefully and without
fear of injury to their lives, limbs, and property. This is possible only in states where the penal law is effective
and strong enough to deal with the violators of law. Any state, whatever might be its ideology or form of gov-
ernment, in order to be designated as a state, should certainly have an efficient system of penal laws in order
to discharge its primary function of keeping peace in the land by maintaining law and order. The instrument,
by which this paramount duty of the government is maintained, is undoubtedly the penal law of the land. Pe-
nal law is an instrument of social control. Its approach is condemnatory and it authorises the infliction state
punishment. To criminalise a certain kind of conduct is to declare that it should not be done, to institute a
threat of punishment in order to supply a pragmatic reason for not doing it, and to censure those who never-
theless do it. Penal law does it by prohibiting 'undesired' and 'harmful' human conduct and 'punishing' the
perpetrators thereof or posing threat of punishment to the prospective violators. It, therefore, defines and
punishes 'acts' or 'omissions' that are perceived as:
(1) attacks on public order, internal or external;
(2) abuses or obstructions of public authority;
(3) acts injurious to the public in general;
(4) attacks upon the persons of individuals, or upon rights annexed to their persons; or
(5) attacks upon the property of individuals or rights connected with, and similar to, rights of prop-
erty'.1
However, criminal law, which ultimately censures publicly an individual by labeling a person a criminal, has to
balance between the 'collective (valued) interests' and 'individual interests'. And 'harmful conduct' or 'mis-
conduct' to be condemned by criminal law needs to be judged in terms of its effect on valued interests, which
may be individual interest or some form of collective interest. This essentially involves a few pertinent issues,
namely, how the criminal law ought to be shaped, what its social significance should be, and when it should
be used and when not. Answers and states' responses to these questions may not be uniform and precise.
Criminal and penal policy of a state, which ostensibly varies from state-to-state and time to time, indeed dic-
tates answers to these questions.
Nevertheless, it will be difficult to deny the great importance of this branch of law for the security of life, prop-
erty and maintenance of law and order in the state. People in a state can indeed afford to be without a highly
developed system of constitutional law, or property law, but they could ill afford to remain even a day without
a system of penal law. Professor Wechsler, an eminent American authority on criminal law, has rightly said
thus:
Whatever views are held about the penal law, no one will question its importance in society. This is the law on which
men place their ultimate reliance for protection against all the deepest injuries that human conduct can inflict on indi-
viduals and institutions. By the same token, penal law governs the strongest force that we permit official agencies to
bring to bear on individuals. Its promise as an instrument of safety is matched only by its power to destroy. If penal law
is weak or ineffective, basic human interests are in jeopardy. If it is harsh or arbitrary in its impact, it works gross injus-
tice to those caught within its coils. The law that carries such responsibilities should surely be as rational and just as
law can be.2
, 2
The study of the law of crimes is very interesting and highly beneficial for more reasons than one. It catches
the imagination of people on account of its dramatic character. Very often, the incidents which constitute a
crime become sensational on account of the vivid and violent nature of the act s--forcible interferences with
property and liberty; with persons and life and the penalty imposed on those who commit such acts, naturally
attract the attention of all people in a state. Every person in a society is interested in the maintenance of law
and order, and is anxious to have security of life and property. Again, persons who may have to discharge
the duties as either jurors or assessors, will also gain much by the knowledge of the fundamental principles
relating to the administration of criminal justice. The comparatively high degree of importance and gravity of
the criminal proceedings against a person, which may end in one's answering with one's own life, has natu-
rally led to the high importance of this branch of law than others. The administration of criminal justice has
also led people to think of greater problems, social and ethical, which would introduce a golden era in a
state, where the law-abiding citizens would voluntarily abstain from crimes.
WHAT IS A CRIME?
It is very difficult to give a correct and precise definition of crime.3 Glanville Williams, admitting the impossibil-
ity of having a workable content based definition of a crime, points out that the definition of crime is one of
the thorny intellectual problems of law.4 Russell also admitted that 'to define crime is a task which so far has
not been satisfactorily accomplished by any wrier'.5 JW Cecil Turner, who edited Kenny's Outlines of Criminal
Law, in a similar tone, also conceded that 'the definition of crime has always been regarded as a matter of
great difficulty' and 'the truth appears to be that no satisfactory definition has yet been achieved, and that it
is, indeed, not possible to discover a legal definition of crime'. 6
Such a 'difficulty', in ultimate analysis, arises due to the changing nature of 'crime', an outcome of the equally
dynamic 'criminal and penal policy' of a state. A number of social and political forces and factors, individually
or cumulatively, play a pivotal role in the formulation of criminal policy of a state. It obviously varies according
to cultures, social values and beliefs, and ideology of the ruling social-political power. Only social values and
culture in vogue and the existing power structure dictate the 'values' and 'social interests' that need 'protec-
tion' by using criminal law 'sanctions'. 'In fact criminal offences', observed by Russell, 'are basically the crea-
tion of the criminal policy adopted from time-to-time by those sections of the community who are powerful or
astute enough to safeguard their own security and comfort by causing the sovereign power in the state to
repress conduct which they feel may endanger their position'. 7 Professor Kenny, delving into the 'difficulty',
however was more eloquent, who observed thus:
Any conduct which a sufficiently powerful section of any given community feels to be destructive of its own interests, as
endangering its safety, stability or comfort, it usually regards as especially heinous and seeks to repress with corre-
sponding severity; if possible it secures that the forces which the sovereign power in the State can command shall be
utilized to prevent the mischief or to punish anyone who is guilty of it. ...Of course a variety of factors may operate at
the same time to produce this result, and it is rarely possible to identify them clearly: all that can be said is that an of-
fence may become a crime as a result of the combined effect of a number of different social forces. ...Crimes therefore
originate in the government policy of the moment; ....Since that policy is influenced by many considerations it is not
easy to discover in any specific case of new law, what exactly and exclusively are the forces which have produced it;
nor, of course, is the policy always followed consistently or logically. ...So long as crimes continue ...to be created by
government policy the nature of crime will elude true definition.8
A pattern of human behaviour prohibited by criminal law at a given time in a given society, thus, depends
upon the specific features of its organisation. Developments in science, especially in biology and medicine,
and changes in the predominant moral and social philosophy also influence the making of penal law. 9 A hu-
man conduct that is believed to be inimical to the social interests is labeled as a crime. This explanation also
enables us to understand why crimes change from age to age and differ from state to state. Whenever soci-
ety comes to believe that conduct that was once held to menace any of the consciously recognised interests
no longer act ually menaces them, it ceases to be a crime. Whenever society believes that a kind of conduct
that was once thought to be indifferent to the welfare of the group actually threatens some of the cherished
interests, it applies repressive methods, and that conduct becomes crime. Only political power of the day
decides what human conduct deserves to be a crime. 'The domain of criminal jurisprudence', observed Lord
Atkin, 'can only be ascertained by examining what act s at any particular period are declared by the State to
, 3
be crimes, and the only common nature they will be found to possess is that they are prohibited by the State
and that those who commit them are punished'.10 A truth is that a crime is an act or omission in respect of
which legal punishment is inflicted on the person who is in default either by act ing or omitting to act and
criminal law relates to crimes and their punishment.
W Friedman, approvingly quoting Professor Wechsler, observed: 'The purpose of criminal law is to express a
formal social condemnation of forbidden conduct, buttressed by sanctions calculated to prevent it'. This ob-
servation, according to him, poses three important questions 'to which different societies give very different
answers'. They are:
(1) What kind of conduct is 'forbidden'?
(2) What kind of 'formal' social condemnation is considered appropriate to prevent such conduct?
(3) What kind of sanctions are considered as best calculated to prevent officially outlawed con-
duct?
In examining what kind of conduct ought to be forbidden, it becomes necessary to recall some of the pro-
claimed purposes of criminal law. Nigel Walker11 lists a number of 'purposes of criminal law', of which the fol-
lowing seem to be the most important for the present context. They are:
The protection of the human person (and to some extent animals also) against intentional violence, cruelty or unwel-
come sexual approaches.
The protection of people against some forms of unintended harm (for example from traffic, poisons or infections).
The protection of particularly vulnerable individuals (e.g. the young, the weak-minded, subnormal) against the abuse of
their persons or property.
The prevention of act s which, even if the participants are adult and willing, are regarded as 'unnatural' (for example,
incest, sodomy or bestiality).
The defence of the State (for example, espionage).
The prevention of certain forms of behaviour which, if performed in public, might shock or corrupt other people (for
example, nakedness, obscene language, or copulation between consenting adults in public).
The protection of property against theft, fraud, or damage.
The protection of social institutions, such as marriage and family (by prohibiting bigamy).
A human conduct that, according to the policy-makers, comes within the ambit of the above-mentioned cata-
logue of 'purposes of criminal law' can be labeled as 'crime'.
However, some sociologists, perceiving 'crime' as a 'social phenomenon', feel that criminal law, in a sense,
protects certain 'social interests'. These interests, as classified by Roscoe Pound, are:
Interests in general, including interests in general safety, general health, peace and public order, security of transac-
tions, and security of acquisitions.
, 4
Interests in the security of social institutions. It includes interests in domestic institutions, religious institutions, and po-
litical institutions.
Interests in the general morals. This interest includes all social demands to be secured against acts or courses of con-
duct offensive to moral sentiments of the body of individuals at a given time. Hence, legal policies against dishonesty,
corruption, gambling and other things of immoral tendencies may take form of 'crime'.
Interests in conservation of social resources. It is based on the idea that goods of existence shall not be wasted, which
warrants that dependents, defectives, and delinquents are required to be trained, protected and reformed.
Interests in general progress. It includes interests in economic, political and cultural progress.
Interests in the individual life. This interest takes two forms. First, the interests, which demand that 'individual will', shall
not be subjected arbitrarily to the will of another. Secondly, the interest resulting in the policy that all restraint and legal
enforcement of the claims of others shall leave secured to the individual the possibility of human existence. 12
Sociologists claim that these interests are preserved in every society, and any act that threatens or poses
threat to their realisation finds place in the criminal law. The following crimes generally known to the human
civilisation vis--vis the corresponding social interests listed above exhibit veracity of the claim of sociologists.
Crimes Corresponding Social Interests
1 Crimes against human body and life Out of interests of the community in life and limb of
its members.
2 Crimes against property (e.g. theft, robbery, da- Out of interests of the society in general security. It is
coity, etc.) also partly out the individual of group interest in the
welfare of and partly out of the social interest in the
security of social institutions.
3 Crimes against public peace and order (e.g. trea- Developed partly out of demand for general security
son, sedition, disturbance of public peace, etc.) and partly out of the interest of the group in the sta-
bility of the institutions.
4 Crimes against religion Developed out of the interests of the society in reli-
gious institutions as social institutions.
5 Crimes against the family (e.g. bigamy, adultery, Conduct threatens the stability of the family as a so-
neglect of children, desertion of family, etc.) cial institution.
6 Crimes against morals of (e.g. cohabitation with a Developed out of interests in the morals. Developed
close relative, sodomy, obscenity, corruption of public out of certain sentiments of the society, which feels
morals, etc.) family institution. outraged by such a conduct. Developed out of the
interests in the outraged by such a conduct.
7 Crimes against conservation of resources of socie- The society not only looks at its own welfare but also
ty (e.g. neglect of children and mentally challenged welfare of the future generations. It therefore pun-
individuals) ishes waste of these natural resources.
It is needless to mention that social changes affect criminal law in many ways--through developments in sci-
ence, especially in biology and medicine; through changes in the predominant moral and social philosophy;
through changes in the structure of society, especially in its transition from a rural self-contained and rela-
tively sparsely populated, to a highly urbanised and industrialised pattern. However, criminal offences deal-
ing with the protection of life and liberty have essentially remained unchanged throughout the ages all over
the world. But offences against property have undergone more profound changes, mainly as a result of the
transformation of a primitive agricultural society into a commercial or industrial one. The original crime of
theft has been gradually widened to include embezzlement and fraudulent conversion, so as to protect the
PSA Pillai: Criminal Law,12th Edition/PSA Pillai Criminal Law 2014/CHAPTER 1 Nature of Crime
CHAPTER 1
Nature of Crime
INTRODUCTION
Personal safety, particularly security of life, liberty and property, is of utmost importance to any individual.
Maintenance of peace and order is essential in any society for human beings to live peacefully and without
fear of injury to their lives, limbs, and property. This is possible only in states where the penal law is effective
and strong enough to deal with the violators of law. Any state, whatever might be its ideology or form of gov-
ernment, in order to be designated as a state, should certainly have an efficient system of penal laws in order
to discharge its primary function of keeping peace in the land by maintaining law and order. The instrument,
by which this paramount duty of the government is maintained, is undoubtedly the penal law of the land. Pe-
nal law is an instrument of social control. Its approach is condemnatory and it authorises the infliction state
punishment. To criminalise a certain kind of conduct is to declare that it should not be done, to institute a
threat of punishment in order to supply a pragmatic reason for not doing it, and to censure those who never-
theless do it. Penal law does it by prohibiting 'undesired' and 'harmful' human conduct and 'punishing' the
perpetrators thereof or posing threat of punishment to the prospective violators. It, therefore, defines and
punishes 'acts' or 'omissions' that are perceived as:
(1) attacks on public order, internal or external;
(2) abuses or obstructions of public authority;
(3) acts injurious to the public in general;
(4) attacks upon the persons of individuals, or upon rights annexed to their persons; or
(5) attacks upon the property of individuals or rights connected with, and similar to, rights of prop-
erty'.1
However, criminal law, which ultimately censures publicly an individual by labeling a person a criminal, has to
balance between the 'collective (valued) interests' and 'individual interests'. And 'harmful conduct' or 'mis-
conduct' to be condemned by criminal law needs to be judged in terms of its effect on valued interests, which
may be individual interest or some form of collective interest. This essentially involves a few pertinent issues,
namely, how the criminal law ought to be shaped, what its social significance should be, and when it should
be used and when not. Answers and states' responses to these questions may not be uniform and precise.
Criminal and penal policy of a state, which ostensibly varies from state-to-state and time to time, indeed dic-
tates answers to these questions.
Nevertheless, it will be difficult to deny the great importance of this branch of law for the security of life, prop-
erty and maintenance of law and order in the state. People in a state can indeed afford to be without a highly
developed system of constitutional law, or property law, but they could ill afford to remain even a day without
a system of penal law. Professor Wechsler, an eminent American authority on criminal law, has rightly said
thus:
Whatever views are held about the penal law, no one will question its importance in society. This is the law on which
men place their ultimate reliance for protection against all the deepest injuries that human conduct can inflict on indi-
viduals and institutions. By the same token, penal law governs the strongest force that we permit official agencies to
bring to bear on individuals. Its promise as an instrument of safety is matched only by its power to destroy. If penal law
is weak or ineffective, basic human interests are in jeopardy. If it is harsh or arbitrary in its impact, it works gross injus-
tice to those caught within its coils. The law that carries such responsibilities should surely be as rational and just as
law can be.2
, 2
The study of the law of crimes is very interesting and highly beneficial for more reasons than one. It catches
the imagination of people on account of its dramatic character. Very often, the incidents which constitute a
crime become sensational on account of the vivid and violent nature of the act s--forcible interferences with
property and liberty; with persons and life and the penalty imposed on those who commit such acts, naturally
attract the attention of all people in a state. Every person in a society is interested in the maintenance of law
and order, and is anxious to have security of life and property. Again, persons who may have to discharge
the duties as either jurors or assessors, will also gain much by the knowledge of the fundamental principles
relating to the administration of criminal justice. The comparatively high degree of importance and gravity of
the criminal proceedings against a person, which may end in one's answering with one's own life, has natu-
rally led to the high importance of this branch of law than others. The administration of criminal justice has
also led people to think of greater problems, social and ethical, which would introduce a golden era in a
state, where the law-abiding citizens would voluntarily abstain from crimes.
WHAT IS A CRIME?
It is very difficult to give a correct and precise definition of crime.3 Glanville Williams, admitting the impossibil-
ity of having a workable content based definition of a crime, points out that the definition of crime is one of
the thorny intellectual problems of law.4 Russell also admitted that 'to define crime is a task which so far has
not been satisfactorily accomplished by any wrier'.5 JW Cecil Turner, who edited Kenny's Outlines of Criminal
Law, in a similar tone, also conceded that 'the definition of crime has always been regarded as a matter of
great difficulty' and 'the truth appears to be that no satisfactory definition has yet been achieved, and that it
is, indeed, not possible to discover a legal definition of crime'. 6
Such a 'difficulty', in ultimate analysis, arises due to the changing nature of 'crime', an outcome of the equally
dynamic 'criminal and penal policy' of a state. A number of social and political forces and factors, individually
or cumulatively, play a pivotal role in the formulation of criminal policy of a state. It obviously varies according
to cultures, social values and beliefs, and ideology of the ruling social-political power. Only social values and
culture in vogue and the existing power structure dictate the 'values' and 'social interests' that need 'protec-
tion' by using criminal law 'sanctions'. 'In fact criminal offences', observed by Russell, 'are basically the crea-
tion of the criminal policy adopted from time-to-time by those sections of the community who are powerful or
astute enough to safeguard their own security and comfort by causing the sovereign power in the state to
repress conduct which they feel may endanger their position'. 7 Professor Kenny, delving into the 'difficulty',
however was more eloquent, who observed thus:
Any conduct which a sufficiently powerful section of any given community feels to be destructive of its own interests, as
endangering its safety, stability or comfort, it usually regards as especially heinous and seeks to repress with corre-
sponding severity; if possible it secures that the forces which the sovereign power in the State can command shall be
utilized to prevent the mischief or to punish anyone who is guilty of it. ...Of course a variety of factors may operate at
the same time to produce this result, and it is rarely possible to identify them clearly: all that can be said is that an of-
fence may become a crime as a result of the combined effect of a number of different social forces. ...Crimes therefore
originate in the government policy of the moment; ....Since that policy is influenced by many considerations it is not
easy to discover in any specific case of new law, what exactly and exclusively are the forces which have produced it;
nor, of course, is the policy always followed consistently or logically. ...So long as crimes continue ...to be created by
government policy the nature of crime will elude true definition.8
A pattern of human behaviour prohibited by criminal law at a given time in a given society, thus, depends
upon the specific features of its organisation. Developments in science, especially in biology and medicine,
and changes in the predominant moral and social philosophy also influence the making of penal law. 9 A hu-
man conduct that is believed to be inimical to the social interests is labeled as a crime. This explanation also
enables us to understand why crimes change from age to age and differ from state to state. Whenever soci-
ety comes to believe that conduct that was once held to menace any of the consciously recognised interests
no longer act ually menaces them, it ceases to be a crime. Whenever society believes that a kind of conduct
that was once thought to be indifferent to the welfare of the group actually threatens some of the cherished
interests, it applies repressive methods, and that conduct becomes crime. Only political power of the day
decides what human conduct deserves to be a crime. 'The domain of criminal jurisprudence', observed Lord
Atkin, 'can only be ascertained by examining what act s at any particular period are declared by the State to
, 3
be crimes, and the only common nature they will be found to possess is that they are prohibited by the State
and that those who commit them are punished'.10 A truth is that a crime is an act or omission in respect of
which legal punishment is inflicted on the person who is in default either by act ing or omitting to act and
criminal law relates to crimes and their punishment.
W Friedman, approvingly quoting Professor Wechsler, observed: 'The purpose of criminal law is to express a
formal social condemnation of forbidden conduct, buttressed by sanctions calculated to prevent it'. This ob-
servation, according to him, poses three important questions 'to which different societies give very different
answers'. They are:
(1) What kind of conduct is 'forbidden'?
(2) What kind of 'formal' social condemnation is considered appropriate to prevent such conduct?
(3) What kind of sanctions are considered as best calculated to prevent officially outlawed con-
duct?
In examining what kind of conduct ought to be forbidden, it becomes necessary to recall some of the pro-
claimed purposes of criminal law. Nigel Walker11 lists a number of 'purposes of criminal law', of which the fol-
lowing seem to be the most important for the present context. They are:
The protection of the human person (and to some extent animals also) against intentional violence, cruelty or unwel-
come sexual approaches.
The protection of people against some forms of unintended harm (for example from traffic, poisons or infections).
The protection of particularly vulnerable individuals (e.g. the young, the weak-minded, subnormal) against the abuse of
their persons or property.
The prevention of act s which, even if the participants are adult and willing, are regarded as 'unnatural' (for example,
incest, sodomy or bestiality).
The defence of the State (for example, espionage).
The prevention of certain forms of behaviour which, if performed in public, might shock or corrupt other people (for
example, nakedness, obscene language, or copulation between consenting adults in public).
The protection of property against theft, fraud, or damage.
The protection of social institutions, such as marriage and family (by prohibiting bigamy).
A human conduct that, according to the policy-makers, comes within the ambit of the above-mentioned cata-
logue of 'purposes of criminal law' can be labeled as 'crime'.
However, some sociologists, perceiving 'crime' as a 'social phenomenon', feel that criminal law, in a sense,
protects certain 'social interests'. These interests, as classified by Roscoe Pound, are:
Interests in general, including interests in general safety, general health, peace and public order, security of transac-
tions, and security of acquisitions.
, 4
Interests in the security of social institutions. It includes interests in domestic institutions, religious institutions, and po-
litical institutions.
Interests in the general morals. This interest includes all social demands to be secured against acts or courses of con-
duct offensive to moral sentiments of the body of individuals at a given time. Hence, legal policies against dishonesty,
corruption, gambling and other things of immoral tendencies may take form of 'crime'.
Interests in conservation of social resources. It is based on the idea that goods of existence shall not be wasted, which
warrants that dependents, defectives, and delinquents are required to be trained, protected and reformed.
Interests in general progress. It includes interests in economic, political and cultural progress.
Interests in the individual life. This interest takes two forms. First, the interests, which demand that 'individual will', shall
not be subjected arbitrarily to the will of another. Secondly, the interest resulting in the policy that all restraint and legal
enforcement of the claims of others shall leave secured to the individual the possibility of human existence. 12
Sociologists claim that these interests are preserved in every society, and any act that threatens or poses
threat to their realisation finds place in the criminal law. The following crimes generally known to the human
civilisation vis--vis the corresponding social interests listed above exhibit veracity of the claim of sociologists.
Crimes Corresponding Social Interests
1 Crimes against human body and life Out of interests of the community in life and limb of
its members.
2 Crimes against property (e.g. theft, robbery, da- Out of interests of the society in general security. It is
coity, etc.) also partly out the individual of group interest in the
welfare of and partly out of the social interest in the
security of social institutions.
3 Crimes against public peace and order (e.g. trea- Developed partly out of demand for general security
son, sedition, disturbance of public peace, etc.) and partly out of the interest of the group in the sta-
bility of the institutions.
4 Crimes against religion Developed out of the interests of the society in reli-
gious institutions as social institutions.
5 Crimes against the family (e.g. bigamy, adultery, Conduct threatens the stability of the family as a so-
neglect of children, desertion of family, etc.) cial institution.
6 Crimes against morals of (e.g. cohabitation with a Developed out of interests in the morals. Developed
close relative, sodomy, obscenity, corruption of public out of certain sentiments of the society, which feels
morals, etc.) family institution. outraged by such a conduct. Developed out of the
interests in the outraged by such a conduct.
7 Crimes against conservation of resources of socie- The society not only looks at its own welfare but also
ty (e.g. neglect of children and mentally challenged welfare of the future generations. It therefore pun-
individuals) ishes waste of these natural resources.
It is needless to mention that social changes affect criminal law in many ways--through developments in sci-
ence, especially in biology and medicine; through changes in the predominant moral and social philosophy;
through changes in the structure of society, especially in its transition from a rural self-contained and rela-
tively sparsely populated, to a highly urbanised and industrialised pattern. However, criminal offences deal-
ing with the protection of life and liberty have essentially remained unchanged throughout the ages all over
the world. But offences against property have undergone more profound changes, mainly as a result of the
transformation of a primitive agricultural society into a commercial or industrial one. The original crime of
theft has been gradually widened to include embezzlement and fraudulent conversion, so as to protect the
