“The Concept of Crime and Characteristics of Criminal Law in Criminology”. 2:Mala in Se and Mala Prohibita in Criminology: A Detailed Analysis

 “The Concept of Crime and Characteristics of Criminal Law in Criminology”. I

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The Concept of Crime and Characteristics of Criminal Law

1. Meaning of Crime

• Crime means an act which is forbidden by law and is punishable by the State.
• It is not just a private wrong but a public wrong, because it affects society’s peace and order.
• In simple words:

  “A crime is an unlawful act which the State punishes in the interest of society.”

Example:

• Theft, murder, rape, cheating – all are crimes because they harm not only the victim but also disturb society’s peace.

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2. Essential Elements of Crime

For an act to be considered a crime, four elements must be present:

1. Human Being – Crime must be committed by a person who is legally responsible.

   • Example: A child below 7 years (Sec. 82 IPC) cannot commit crime because of lack of understanding.

2. Mens Rea (Guilty Mind) – Intention, knowledge, or negligence must be there.

   • Case: State of Maharashtra v. Mayer Hans George (1965) – Supreme Court held that guilty intention is important unless the law creates strict liability.

3. Actus Reus (Guilty Act) – There must be some external act or omission forbidden by law.

   • Example: If a person only thinks of killing someone but does nothing, it is not a crime.

4. Forbidden by Law + Punishment – The act must be prohibited by law and punishable under the Indian Penal Code or other criminal statutes.

   • Example: Murder (Sec. 302 IPC) → Punishable with death or life imprisonment.

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3. Characteristics of Criminal Law

1. Public Wrong – Crime is against the whole society, not just an individual. That’s why cases are filed as State vs. Accused.

   • Example: State of UP vs. Ram Swarup.

2. Punitive in Nature – Criminal law provides punishments such as imprisonment, fine, death penalty.

   • Example: Murder → Sec. 302 IPC → death or life imprisonment.

3. Codified Law – In India, criminal law is mostly written (codified) in statutes like IPC 1860, CrPC 1973, and Evidence Act 1872.

4. Presumption of Innocence – Every accused is presumed innocent until proven guilty.

   • Case: Kali Ram v. State of Himachal Pradesh (1973) – Supreme Court held that benefit of doubt goes to the accused.

5. Burden of Proof on Prosecution – It is the duty of the State (prosecution) to prove guilt beyond reasonable doubt.

   • Example: In murder cases, the prosecution must prove intention, act, and causation.

6. No Retrospective Punishment – A person cannot be punished for an act which was not a crime when committed.

   • Constitution of India, Article 20(1).

7. Mens Rea Principle – Criminal liability is based on guilty mind except in strict liability offences (like traffic rules, food adulteration).

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4. Criminology Angle

In criminology, crime is studied as a social phenomenon:

• Why people commit crime (causes: poverty, illiteracy, unemployment, peer pressure).
• How society and law react to crime.
• Aim of criminal law: not only to punish but also to prevent crimes and reform offenders.

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5. Case Laws (Important for Exam)

• R v. Prince (1875) – Mens rea is essential in most crimes.
• M.H. George Case (1965) – Intention may not be necessary in strict liability offences.
• Kali Ram v. State of HP (1973) – Benefit of doubt must go to the accused.
• State of Punjab v. Rafiq Masih (2015) – Innocent persons should not suffer due to mistakes of authority.

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6. Conclusion

• Crime is a social wrong punishable by the State.
• Criminal law ensures justice, peace, and order in society.
• Its characteristics like public wrong, punishment, presumption of innocence, and codification make it different from civil law.
• Criminology helps us understand causes and prevention of crime, which is equally important along with punishment

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Mala in Se and Mala Prohibita in Criminology: A Detailed Analysis

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1. Crime in Criminology

• In criminology, crime is not only a legal concept but also a social construction.
• Every society has two approaches to labeling crime:
  1. Natural/moral wrongs (mala in se).
  2. Legal/technical wrongs (mala prohibita).
• Criminologists study both types to understand how societies define, prevent, and react to crime.

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2. Mala in Se – Natural Crimes

• These crimes are universally condemned because they harm fundamental values like life, property, or dignity.
• They reflect what criminologists call “consensus crimes” → acts on which all societies agree.
• They often arise from basic human instincts (anger, greed, lust) which criminology tries to explain.

Examples: murder, rape, robbery.

Criminological Analysis:

• Theories like Biological Positivism (Lombroso) tried to link such crimes to “born criminals.”
• Later, sociological theories (Durkheim, Merton) explained them as outcomes of social strain, inequality, and moral breakdown.
• Thus, mala in se crimes are not just wrong in law, but deeply rooted in human behavior and social conditions.

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3. Mala Prohibita – Regulatory Crimes

• These crimes are not immoral by nature but are criminalized by law for maintaining order.
• They are called “conflict crimes” in criminology → society may not agree morally, but law imposes control.
• They often change with time, culture, and politics.

Examples: traffic offences, currency violations, prohibition on liquor, environmental regulations.

Criminological Analysis:

• Labelling Theory (Howard Becker) → crime is not about the act itself, but about how society labels it.
• Many mala prohibita offences create “technical criminals” (e.g., ordinary citizens breaking traffic rules daily).
• These crimes show that criminal law is a tool of social control, not always moral judgment.

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4. Legal Making of a Criminal

• In criminology, a criminal is not born but made through legal definitions and social reactions.
• Mala in se crimes → law reflects universal morality.
• Mala prohibita crimes → law constructs criminality where no moral guilt exists.
• Example:
  • A murderer (mala in se) → condemned morally and legally.
  • A businessman violating tax filing deadline (mala prohibita) → condemned legally but not morally.

Thus, criminal law creates “criminals” by attaching punishments to both natural and regulatory acts.

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5. Importance for Criminology

• Understanding society’s values: Mala in se shows universal moral values; mala prohibita shows political and social control.
• Policy-making: Criminologists study whether criminalizing mala prohibita offences (like minor traffic rules) really helps society or just clogs courts.
• Reformation vs. punishment: Mala in se crimes often need severe punishment + reformation programs; mala prohibita crimes often need regulation + awareness, not harsh punishment.
• Comparative criminology: Shows that crime is relative. What is mala prohibita in India (liquor ban in Gujarat) may not be a crime in another state or country.

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6. Case Laws in Support

• R v. Dudley & Stephens (1884) → example of mala in se crime (murder inherently wrong).
• State of Maharashtra v. Mayer Hans George (1965) → mala prohibita, ignorance of law no excuse.
• Kali Ram v. State of HP (1973) → benefit of doubt goes to accused → shows balance between law and morality.

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7. Conclusion

• In criminology, crime is both natural (mala in se) and constructed (mala prohibita).
• Mala in se crimes reflect universal moral wrongs, studied through psychological and sociological theories.
• Mala prohibita crimes reflect law’s role in creating criminals for order and regulation.
• Together, they show that criminality is a mix of morality, law, and social reaction.

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