The Common Law in India - College of Social Sciences and ...

Criminal Law 137a special meaning. Under the Indian General ClausesAct 45 a thing is deemed to be done in good faithwhere it is in fact done honestly whether it is donenegligently or not. That is a definition borrowedfrom an English statute. 46 But the Code has defined" good faith" negatively and emphasised not thehonesty of the action but the care and attention withwhich it is done. Notwithstanding, however, thesedifferences, owing no doubt to the fundamental notionswhich underlie these expressions, Indian courts haveon occasions referred to English decisions in interpretingthem.MENS REAThe recognition of a mental element in criminalliability is inherent in the English common law. Thetraditional maxim " actus non facit reum nisi menssit rea" expresses, it has been said, a cardinaldoctrine of English law. 47 Lord Kenyon C.J. saidthat the maxim was " a principle of natural justice,and of our law. . . . The intent and the act mustboth concur to constitute a crime." The maxim,accepted in the English courts for centuries, recognises,it is said, " that there are two necessaryelements in crime, a physical element and a mentalelement." At common law no man may be foundguilty of crime unless, in addition to an overt actwhich the law forbids or default in doing some actwhich the law enjoins, he had at the time a legally« Act X of 1897, a. 3 (22).«• (45 & 46 Viet. o. 61) Bills of Exchange Act, 1882, s. 90.** Younghusband v. Luftig [1949] 2 K.B. 354, 370, GoddardL.C.J.H.L.—12 10