According to Osborn, crime is an act or default which tends to the prejudice of the community, and forbidden by law on pain of punishment inflicted at the suit of the State. In its legal sense, therefore, crime includes such offences being acts or defaults which have been made punishable by the Indian Penal Code.
It is apparent from the above that there is nothing which by itself is a crime, unless it has been declared by the legislature as punishable.
The authors of the Indian Penal Code themselves remark that a Penal Code is not by any means to be considered a body of ethics, nor ought the legislature to punish acts merely because those acts are immoral, nor, further, from the fact that an act is not punished at all should it follow that the legislature considers that act as innocent. Many things which are not punishable are morally worse than those which are punishable.
The man who treats a generous benefactor with ingratitude and insolence deserves more severe reprehension than the man who aims a blow in the heat of passion, or breaks a window in mere frolic: yet the Indian Penal Code provides for punishment for assault and mischief in the case of the latter but not for ingratitude.
The rich man who refuses a handful of rice to save a fellow creature from death may be a far worse man than the starving wretch who snatches and devours the rice, yet the Indian Penal Code punishes for theft, and not the former for hard-heartedness.
Crime is, therefore, a relative conception. Different societies view different acts of commission and defaults as crime in different ages and according to different localities and circumstances.
History is replete with examples where heresy, i.e., religious belief other than that recognized by the State, has been treated as an offence punishable with death, but no nation can today think of prescribing punishment merely for holding such views.
Similarly adultery is a civil offence against the law of matrimony in England and leads to divorce, the husband having claim to compensation from the co-respondent. But in India it is a crime within the meaning of Section 497 of the Indian Penal Code and is punishable with imprisonment of either description for a term which may extend to five years or with fine or with both.
The Code however, absolves the wife from punishment as an abettor and excuses her infidelity on account of some peculiarities in the state of society in this country where, according to the authors of the Code, a woman is sometimes married while still a child and is neglected for other wives while still young.
They were, therefore, reluctant to make laws for punishing the inconstancy of the wife, while the law admitted the privilege of the husband to polygamy. But it has to be remembered that our great Hindu law-giver Manu provided punishment for the wife also in such a case.
And even in modern times countries like France and China have made laws which punish the infidelity of wives as well. That is all the more important when now the Hindu Marriage Act, 1955, enacts the rule of monogamy.
The recognition of a crime, therefore, varies with public opinion of a given society at a given time and there cannot be any rigid or absolute criterion to determine it.
Ideas may change; standards of ethical morality may differ, and with them may differ the recognition of any offence by the legislature within the ambit of its Penal Code.
It has, therefore, been rightly said that crime is not quantity, nor can it be considered in absolute terms. There is actually no such thing as a crime in se or crime by itself.