Extracts from Joseph Shine vs Union of India Decided on 27.09.2018.
Writ Petition (Criminal) No. 194 of 2017 (Under Article 32 of the Constitution of India)
Judges Coram:
Dipak Misra, C.J.I., A.M. Khanwilkar, Indu Malhotra, Rohinton Fali Nariman and Dr. D.Y. Chandrachud, JJ.
Basic Case: filed Under Article 32 of the Constitution of India challenging the validity of Section 497 Indian Penal Code. (Adultery is a crime that punishes the married man who sleeps with the wife of another man without his connivance)
Paragraphs dealing with definitions of Crime:
43. Dealing with the concept of crime, it has been stated in "Principles of Criminal Liability"5 thus:
"1. Definition of crime —There is no satisfactory definition of crime which will embrace the many acts and omissions which are criminal, and which will at the same time exclude all those acts and omissions which are not. Ordinarily a crime is a wrong which affects the security or well-being of the public generally so that the public has an interest in its suppression. A crime is frequently a moral wrong in that it amounts to conduct which is inimical to the general moral sense of the community. It is, however, possible to instance many crimes which exhibit neither of the foregoing characteristics. An act may be made criminal by Parliament simply because it is criminal process, rather than civil, which offers the more effective means of controlling the conduct in question."
44. In Kenny's Outlines of Criminal Law, 19th Edn., 1966 by J.W. Cecil Turner, it has been stated that:
"There is indeed no fundamental or inherent difference between a crime and a tort. Any conduct which harms an individual to some extent harms society, since society is made up of individuals; and therefore, although it is true to say of crime that is an offence against society, this does not distinguish crime from tort. The difference is one of degree only, and the early history of the common law shows how words which now suggest a real distinction began rather as symbols of emotion than as terms of scientific classification."
And Again
"So long as crimes continue (as would seem inevitable) to be created by government policy the nature of crime will elude true definition. Nevertheless it is a broadly accurate description to say that nearly every instance of crime presents all of the three following characteristics: (1) that it is a harm, brought about by human conduct, which the sovereign power in the State desires to prevent; (2) that among the measures of prevention selected is the threat of punishment; (3) that legal proceedings of a special kind are employed to decide whether the person Accused did in fact cause the harm, and is, according to law, to be held legally punishable for doing so."
45. Stephen defines a "crime" thus:
"A crime is an unlawful act or default which is an offence against the public, rendering the person guilty of such act or default liable to legal punishment. The process by which such person is punished for the unlawful act or default is carried on in the name of the Crown; although any private person, in the absence of statutory provision to the contrary, may commence a criminal prosecution. Criminal proceedings were formerly called pleas of the Crown, because the King, in whom centers the majesty of the whole community, is supposed by the law to be the person injured by every infraction of the public rights belonging to that community. Wherefore he is, in all cases, the proper prosecutor for every public offence."
46. Blackstone, while discussing the general nature of crime, has defined crime thus:
"A crime, or misdemeanor, is an act committed or omitted, in violation of a public law, either forbidding or commanding it. This general definition comprehends both crimes and misdemeanors, which, properly speaking, are mere synonym terms: though, in common usage, the word "crimes" is made to denote such offences as are of a deeper and more atrocious dye; while smaller faults, and omissions of less consequence, are comprised under the gentler name of "misdemeanors" only."
5 Halsbury‟s Laws of England, 4th Edn., Vol. 11 p.11,
Ends
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