It is an almost immemorial commonplace of English judges to state that there can be no conviction on a criminal charge unless the prisoner has a mens rea, or guilty mind. The maxim which lays down the doctrine (actus non facit reum nisi mens sit rea. Non est reus nisi mens sit rea) has been traced by Sir James Stephen backwards through Lord Coke to the laws of Henry I.1 Its meaning was discussed with great elaboration in two recent cases,2 where the judges deferred completely as to its application. In the last case, Stephen J., with characteristic independence, expressed , an opinion that the maxim itself was not of much practical value, and was not only likely to mislead, but was absolutely misleading; and in this opinion, Manisty J., who agreed with him in nothing else, most heartily concurred. When the maxim originated, criminal law practically dealt with common law offences, none of which were defined. The law gave them certain names, such as treason, murder, burglary, larcency, or rape, and left any person who was interested in the matter to find out for himself what these terms meant. To do this he had to resort to the explanations of text writers and the decision of judges. There he found that the crime consisted, not merely in doing a particular act, such as killing a man, or carrying away his purse, but in doing the act with a particular knowledge or purpose. The superadded mental state was generalized by the term mens rea, and the assertion that no one was a criminal unless he had the mens tea really came only to this: that nothing amounted- to a crime which did not include all its necessary ingredients.3 Of course, the mental state which had to be established to make out a crime varied with the crime itself. The maxim that every criminal must have a mens rea was generally true, but was always valueless. The real question was whether in each case the accused had the particular mens rea which proved him a criminal.
Under the Penal Code such a maxim is wholly out of place. Every offence is defined, and the definition states, not only what the accused must have done, but the state of his mind with regard to the act when he was doing it. It must have been done knowingly, voluntarily, fraudulently, dishonestly, or the like. And when it is stated that the act must have been done with a particular knowledge or intention, the definition goes on to state what he must have known, or what he must have intended.
When a man is charged with an offence, he frequently says that he did not intend to commit it, and apparently supposes that the answer, if believed, would be complete. Does he mean that, in doing the act charged against him, he did not intend to commit a crime; or does he mean that he did not intend to do the act which the law declares to be a crime? In the latter case the plea would generally be a good one. In the former case it would always be bad. It would only mean that he had formed a wrong opinion as to the legal aspect of his conduct, or as to the consequences to himself that might flow from it.1[See 2 Steph. Crim. L. 113.] For instance, a man is charged with killing a person by firing a gun at him. He says that he did not intend to kill him. If he means that the gun went off by accident, this is a good defence, independent of section 80 of the Penal Code, as it shows that he never fired the gun. If he means that he fired at the man to frighten him, and did not believe the gun would carry so far, this, if a reasonable belief, would negative the criminal intention necessary under section 299, but would be no answer to a charge under section 304A, which involves no intention to injure. If he means that he fired at him, mistaking him for another person whom he had no right to kill, this is no defence whatever as it is merely a description of the offence defined by section 301. If he means that he fired at him in his house at night honestly believing him to be a burglar, this would be a good defence under section 79, as it shows that he has committed no offence. If he means that he fired at him intending to wound, but not intending to kill him, this, again, would be no defence if the natural result of hitting the man would be to kill him (section 299). -To say that he intended to do a particular act, bat did not intend that the ordinary consequences should follow from it. is merely to say that be expected that the laws of nature would be suspended in the particular instance for his convenience (see post paragraphs 666 and 667).
Where
knowledge of a particular fact is an essential element in an offence, as, for instance,
under section 497 of the Penal Code, it must necessarily be proved. So also,
where a fraudulent or dishonest intent is an ingredient, there must be a
knowledge of the facts which make the act a fraudulent one. Hence, there can be
no theft where the property is taken under a bona fide though mistaken claim of
right (post paragraph 505). Probably some such knowledge is always required in
regard to all crimes properly so called, that is, acts which cannot be done
without a sense that it is wrong to do them. There is, however, a large and
growing class of aututory offences, where acts previously innocent are
forbidden, or acts previously optional are commanded, simply because the State
considers such legislation necessary for its own interests, or for the
protection of some particular class of the community. Here the object of the
State is merely to compel the adoption of a particular line of conduct, and the
penalties that are imposed are intended, not for punishment, but for
prevention, as the only means which the State has at its disposal for the
enforcement of its laws. Now, in regard to such cases, questions have
frequently arisen whether a person is punishable under the statute when he has
violated its provisions in ignorance of the fact on which the violation
depends. In some cases of this sort the judges, influenced by the men rea
doctrine, have sought to solve the question by inquiring whether the proceeding
was really a criminal proceeding or not.1 It is now, however,
settled that the true test is "to look at the object of each act that is
under consideration to see how far knowledge is of the essence of the offence
created.2 In arriving at this decision, it has been held material to
inquire: (1) Whether the object of the statute would be frustrated, if proof of
such knowledge was necessary; (2) whether there is anything in the wording of
the particular section which implies knowledge; (3) whether there is anything
in other sections showing that knowledge is an element in the offence., which
is omitted or referred to in the section under discussion.
Hence, upon the first of these grounds, it was held that knowledge was
immaterial, where a statute imposed a penalty on any one who shall represent
any dramatic production without the consent of the author,3 or where
the acts forbidden were " selling to the prejudice of the purchaser any
article of food or drug which is not of the nature, substance, or quality of
the article demanded by such purchaser,"4 or " having in
his possession and intended for food meat which was unsound and unfit for
man."5 So, where a statute provided that " It shall not be
lawful for any person to receive two or more lunatics into any house, unless
such house shall have been registered under this Act," a conviction was
supported, where it appeared that several persons had been received into an
unregistered house, who were in fact lunatics, but whom the defendant, honestly
and on reasonable grounds, believed not to be lunatics.6
As instance of the second ground, it has been held that, where a penalty is
imposed upon any one who " allows" or "permits" or
"suffers" a prohibited act to be done, this implies knowledge of the
nature of the act.7 So it was held that a person could only be'
convicted of "unlawfully killing pigeons " when he knew the facts
which made it unlawful to kill them.8 The words "knowingly and
willfully"
merely mean that a man did the act being quite aware what he was about, and
what consequences would follow from it.9 A statute which provides
that everyone who sends dangerous goods by railway shall distinctly mark their
quality outside assumes the knowledge which would enable such a description to
be given. Therefore, it was held that a person could not be convicted who had
merely forwarded goods received from their owner with an untrue description
upon them, and who had used proper precautions to find out their true
character.10
As illustration the third ground: a statute, passed for the protection of Government stores made criminal by section 1, the concealing, and by section 2, the possession of stores marked with a broad arrow. The defendant was charged under section 2 with the possession of such stores which were found on his premises in casks which he had lately ' received, and which had not been opened. There was no evidence that he knew of their contents. It was held that he could not be convicted. Hill J. said: "The possession in the second section is put in precisely the same category with the concealing, which is a positive act done by the individual in order to constitute the crime." He also considered that any other construction would reduce the statute to an absurdity.1 On the other hand, where a person was charged under section 13 of the licensing Act with " selling intoxicating liquor to a drunken person," and it was proved that the person was in fact drunk, but did not appear to be so, and was not believed to be drunk by the person who served him, the conviction was upheld. Stephen J. relied upon the word "knowingly" in other sections, and its absence in section 13, and also on the general policy of the Act to put upon the publican the responsibility of determining whether his customer was sober.2
In two later cases, where the circumstances were very similar, a different conclusion was arrived at. In one 3 the defendant was convicted under section 16 (2) of the Licensing Act for having unlawfully supplied liquor to a constable while on duty. He had presented himself without his armlet on, and had been served with liquor without inquiry, but under the bona fide belief that, as he had no armlet on, he was not on duty. The conviction was set aside. In this case the sub-section (2) on which he was convicted did not contain the word "knowingly" which was found in the previous sub-section. Day J. said: "In my opinion the only effect of this is to shift the burden of proof. In cases under sub-section (1) it is for the prosecution to prove the knowledge, while in cases under sub-section (2) the defendant has to prove that he did not know." Wright J. said: "There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence, or by the subject-matter with which it deals, and both must be considered. The principal classes of exceptions may, perhaps, be reduced to three. One is a class of acts which, in the language of Lush j. in Davies v. Harvey,4 are not criminal in any real sense, but are acts Which in the public interest are prohibited under a penalty. Another comprehends some and perhaps all public nuisances. Lastly, there may be cases in which, although the proceeding is criminal in form, it is really only a summary mode of enforcing a civil right. But except in such cases as these, there must in general be a guilty knowledge on the part of the defendant, or of someone whom he has put in his place to act for him generally, or in the particular matter, in order to constitute an offence." So it was held that a person could not be convicted under section 27 of the Sale of Food and Drugs Act, 1875 (38 and 39 Vict.,c. 63) for giving a false warranty as to food, when he did not know and had no reason to believe that the warranty was false.
අදටත් මෙහි අදාළත්වය ප්‍රශ්නගත නොවේ. ලංකාවේ අපරාධ නීතියට අනුව අපරාධ නඩුවකදී වරදේ සාවද්‍ය මනස හා සාවද්‍ය ක්‍රියාව යන අංග දෙකම පැමිණිල්ල විසින් සාධාරණ සැකයෙන් ඔබ්බට ඔප්පු කල යුතුය. එසේ නොවෙන්නේ ව්‍යවස්ථාදායකය විසින් ප්‍රකාශිතවම මානසික අංගය ඉවත් කර ඇති වරදකදී පමණි. මානසික අංගය විවිධ පාඨයන්ගෙන් නීතියට ඇතුලත් කර තිබේ. “වංක ලෙස” යන්න එහි ජනප්‍රියම භාවිතාවයි. දැන් මේ 25 (1) (අ) වගන්තියේදී ඇත්තේ “දනිමින්ම” යන පාඨයයි. මේනිසා වරද කිරීම සඳහා මානසික අංගයක් තිබීම අත්‍යාවශ්‍ය බවට කියා සිටින කරුණු පිළිගත නොහැක.
කෙසේවෙතත් වලංගු චෙක්පත් ගණුදෙනුවකදී හුවමාරු කරගත් විට චෙක්පත ලියනු ලැබුවේ අරමුදල් නොමැති වීම නිසා අගරු කරන බව දනිමින් යැයි පෙන්වන සාක්ෂි පැමිණිල්ලෙන් මෙහෙයවුවහොත් එවිට සාක්ෂි ආඥාපනතේ 106 වගන්තිය අනුව එම දැනුම නොතිබූ බව පෙන්වීමට චූදිතට සිදු වේ. එසේ සිදු නොකලහොත් පැමිණිල්ල විසින් චෝදනා ඔප්පු කලා සේ සැලකිය හැක.
එතෙක් 25 (1) (අ) වගන්තිය යටතේ වන නඩු විභාගයකදී චූදිත වරදකරු කළ නොහැකි වේ. ණය ආපසු අයකර ගැනීමේ විශේෂ විධි විධාන පනතේ 25 (1) (අ) වගන්තිය සරල වගන්තියක් ලෙස බැලූ බැල්මට පෙනුනත් අපරාධ නඩුවකදී එහි ප්‍රතිඵල ලබා ගත හැකි වන්නේ චෝදනාව සාධාරණ සැකයෙන් ඔබ්බට ඔප්පු කිරීමෙන් පමණි. වරද පිළිබඳව පැමිණිලි කරද්දී ඒ පිළිබඳව නිසි අවබෝධයක් තිබීම වැදගත් වේ.
මෙහිදී සැලකිය යුතු තවත් කරුණකි.
මුදල් ණයට දීමේ ව්‍යාපාරයක් කරනු ලබන ඕනෑම තැනැත්තකු විසින් ආඥාපනතේ 1අ(1) වගන්තියට පටහැනිව 1964.01.01 දින හෝ ඉන් පසුව ණයට ලබා දුන් මුදලක් සඳහා නඩුවක් හෝ වෙනත් කෘත්‍යයක් පැවරීම හෝ පවත්වාගෙන යාම සිදු නොකළ යුතු බව මුදල් ණයට දීමේ ආඥාපනතේ 1ආ වගන්තියේ දක්වා තිබේ.
චෙක්පත්‍රය යන්න සඳහා විනිමය බිල්පත් ආඥාපනතේ ලබා දී ඇති අර්ථයම ලබා දිය යුතු බව ණය ආපසු අයකර ගැනීමේ (විශේෂ විධිවිධාන) පනතේ දක්වා ඇත. විනිමය බිල්පත් ආඥාපනතේ 73 වගන්තියේ දැක්වෙන්නේ චෙක්පතක් යනු ඉල්ලූ විට ගෙවනු ලැබීම සඳහා බැංකුකරුවකුට නිකුත් කරන විනිමය බිල්පතක් වන බවයි [A cheque is a bill of exchange drawn on a banker payable on demand]. ඊට අමතරව 73 වගන්තියේ දී වැඩිදුරටත් දැක්වෙන්නේ Except as otherwise provided in this Part, the provisions of this Ordinance applicable to a bill of exchange payable on demand apply to a cheque ලෙසිනි. ආඥාපනතේ 10 වගන්තියේ දී මේ සම්බන්ධයෙන් මෙසේ දැක් වේ.
10. (1) A bill is payable on demand— (a) which is expressed to be payable on demand, or at sight, or on presentation ; or (b) in which no time for payment is expressed. (2) Where a bill is accepted or indorsed when it is overdue, it shall, as regards the acceptor who so accepts, or any indorser who so indorses it, be deemed a bill payable on demand.
දැන් මේ වගන්ති අනුව ඉතා පැහැදිලි කරුණක් වන්නේ ණයක් සම්බන්ධයෙන් ඇපයක් ලෙසින් හුවමාරු වූ චෙක්පතක් විනිමය බිල්පත් ආඥාපනතේ දැක්වෙන ආකාරයට බිල්පතක් නොවන බවයි. එසේම පෙර කී මුදල් ණයට දීමේ ආඥාපනතේ 10 වගන්තිය පොරොන්දු නෝට්ටු සම්බන්ධයෙන් අදාළ වේ. විනිමය බිල්පත් ආඥාපනතේ පොරොන්දු නෝට්ටුව ගැනද දක්වා තිබේ. මුදල් ණයට දීමේ ආඥාපනතේ දී පොරොන්දු නෝට්ටුව භාවිතා කර ඇත්තේ ණයට ලබා ගන්නා ඇපයක අර්ථයෙනි. එහි චෙක්පතක් ගැන සඳහනක් නැත. ඒ අනුව ඇපයක් ලෙසින් චෙක්පත්‍රයක් භාවිතා කිරීම ගැන විනිමය බිල්පත් ආඥාපනතේ හෝ මුදල් ණයට දීමේ ආඥාපනතේ හෝ සඳහනක් නැත.
දැන් ආපසු ණය ආපසු අයකර ගැනීමේ (විශේෂ විධිවිධාන) පනතේ චෙක්පත්‍රය යන්නට අවධානය යොමු කළ විට ණයක් සඳහා හෝ ඇපයක් ලෙසින් එය භාවිතා කර ඇත්නම් 25(1)(අ) වගන්තිය තුළට ඇතුළ් කළ නොහැකි බව පැහැදිලි වනු ඇත. මෙනිසා 25(1)(අ) වගන්තිය යටතේ වන අපරාධ නඩුවකදී ණයක් සඳහා හෝ ඇපයක් සඳහා හුවමාරු වූ චෙක්පත්‍රයක් අගරු වීම මත නඩුව පැවරී ඇත්නම් එය චූදිත නිදොස්වීමට හේතුවක් වේ. එහි පදනම වන්නේ එම බිල්පත ඉල්ලු විට ගෙවීම සඳහා බැංකුකරුවකුට කරනු ලැබූ බිල්පත්‍රයක් නොවීම නිසා චෙක්පත්‍රයක් නොවීමයි.
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