Concept of Liability as a whole

Author : Rahil Joshi

What is Jurisprudence?

Jurisprudence or legal theory is that the theoretical study of law. Scholars of jurisprudence seek to elucidate the character of law in its most general form and supply a deeper understanding of legal reasoning, legal systems, legal institutions, and the role of law in society.[1]

Jurisprudence is just a theory of law in which the different jurists/scholars have given their ideas/ thoughts regarding the particulars of the ideas to make understand the concept properly to the laymen.

Jurisprudence is the base of every law. Or rather say that it is the source of law from which the law emerges.


Meaning: The state of being legally liable for something or an individual or thing whose presence or behavior is probably going to place one at an obstacle.

 In law, liable means “responsible or answerable in law; legally obligated”. Legal liability concerns both civil law and legal code and may arise from various areas of law, like contracts, torts, taxes, or fines given by government agencies. The claimant is that the one who seeks to determine, or prove, liability.

Liability is responsibility for or an act or an omission. Whosoever commits a wrong is said to be liable for it.

Thus, now we are very much clear of the term “liability”, now let’s understand the meaning of the term liability from the well-known jurists of that time.

There are total two jurists who had defined liability or put forward the concept of liability for the first time in the history, they are:



Salmond: “Liability or responsibility is that the bond necessarily that exists between the wrongdoer and therefore the remedy of the wrongdoer.”

Marky: “the word liability is used to describe the condition of a person who has a duty to perform.”

There are total two kinds of liability,



CRIMINAL LIABILITY: Responsibility for any illegal behavior that causes harm or damage to someone or something: He acknowledged damaging a house without authorization, but a jury acquitted him of any criminal liability.

CIVIL LIABILITY: Civil liability is a legal obligation that requires a party to pay for damages or to follow other court-enforcements in a lawsuit. Different from criminal liability, which is often brought by the state to redress a public wrong,[2] civil liability, is usually brought by a private party to sue for damages or injunctions.

Now the subtypes of liabilities are;

i) Remedial and Penal Liability

ii) Vicarious Liability

iii) Absolute and Strict Liability


Criminal law is that the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of individuals inclusive of one’s self. Most legal code is established by statute, which is to mention that the laws are enacted by a legislature. Legal code includes the punishment and rehabilitation of individuals who violate such laws.[3]

Criminal law varies consistent with jurisdiction, and differs from civil law, where emphasis is more on dispute resolution and victim compensation, instead of on punishment or rehabilitation.

Criminal procedure may be a formalized official activity that authenticates the very fact of commission of a criminal offense and authorizes punitive or rehabilitative treatment of the offender.

Criminal law is distinctive for the uniquely serious, potential consequences or sanctions for failure to abide by its rules. Every crime consists of criminal elements. Execution could also be imposed in some jurisdictions for the foremost serious crimes. Physical or punishment could also be imposed like whipping or caning, although these punishments are prohibited in much of the planet. Individuals could also be incarcerated in prison or jail during a sort of conditions counting on the jurisdiction. Confinement could also be solitary. Length of incarceration may vary from each day to life. Government supervision could also be imposed, including confinement, and convicts could also be required to evolve to particularized guidelines as a part of a parole or probation regimen. Fines also could also be imposed, seizing money or property from an individual convicted of a criminal offense.

Five objectives are widely accepted for enforcement of the legal code by punishments: retribution, deterrence, incapacitation, rehabilitation and restoration. Jurisdictions differ on the worth to be placed on each.

Retribution – Criminals need to Be Punished in how. This is often the foremost widely seen goal. Criminals have taken improper advantage, or inflicted unfair detriment, upon others and consequently, the legal code will put criminals at some unpleasant disadvantage to “balance the scales.” People undergo the law to receive the proper to not be murdered and if people contravene these laws, they surrender the rights granted to them by the law. Thus, one who murders could also be executed himself. A related theory includes the thought of “righting the balance.”[4]

Deterrence – Individual deterrence is aimed toward the precise offender. The aim is to impose a sufficient penalty to discourage the offender from criminal behavior. General deterrence aims at society at large. By imposing a penalty on those that commit offenses, other individuals are discouraged from committing those offenses.[5]

Incapacitation – Designed simply to stay criminals faraway from society in order that the general public is shielded from their misconduct. This is often achieved through prison sentences today. The execution or banishment has served an equivalent purpose.[6]

Rehabilitation – Aims at transforming an offender into a valuable member of society. Its primary goal is to stop further offense by convincing the offender that their conduct was wrong.[7]

Restoration – this is often a victim-oriented theory of punishment. The goal is to repair, through state authority, any injury inflicted upon the victim by the offender. For instance, one who embezzles is going to be required to repay the quantity improperly acquired. Restoration is usually combined with other main goals of criminal justice and is closely associated with concepts within the civil law, i.e., returning the victim to his or her original position before the injury.


Civil liability is the end or cement of the right of the plaintiff against the defendant in Civil proceedings. Criminal liability is the liability to be punished in a criminal proceeding. A civil liability gives rise to civil proceedings whose purpose is the enforcement of certain rights claimed by the plaintiff against the de fondant. Examples of civil pr 0ceedings are an action for recovery of a debt, restoration of property, the specific performance of a contract, recovery of damages, the issuing of an injunction against the threatened injury, etc. It is possible that the same wrong may give rise to both civil and criminal proceedings[8]. This is so in cases of assault, defamation, theft and malicious injury to property. In such cases, the criminal proceedings are not alternative proceedings but concurrent proceedings. Those are independent of the civil proceedings. The wrongdoer may be punished by imprisonment. He may be ordered to pay compensation to the injured party. The outcome of proceedings in civil and criminal liability is generally different.[9] In the case of civil proceedings, the remedy is in the form of damages, a judgment for the payment of a debt, an injunction, specific performance, delivery of possession of property, a decree of divorce, etc. The redress for criminal liability is in the form of punishment which may be in the form of imprisonment, fine or death.[10] In certain cases, the remedy for both civil and criminal liability may be the same, viz, the payment of money. In certain cases, imprisonment may be awarded for both civil and criminal liability. Even in a civil case, if a party dares to defy an injunction, he can be imprisoned. Civil liability is measured by the magnitude of the wrong done but while measuring criminal liability we take into consideration the motive, intention, character of the offender and the magnitude of the offence.

Remedial Liability

According to this theory, if a duty is created by law, the latter should see to it that the same is performed. The force of law can be used to compel a person to do what he ought to do under the law of the country. If an injury is caused by the violation of a right, the same can be remedied by compelling the person bound to comply with it. There is no idea of punishment in the theory of remedial liability.[11] However, there are three exceptions to the general rule that a man must be forced to do by the force of law what he is bound to do by a rule of law. The first exception is in the case of an imperfect obligation or duty. The breach of an imperfect duty does not give rise to a cause of action. A time-barred debt creates an imperfect duty and, the same cannot be enforced by any court of law. The second exception is in those cases where duties are impossible of specific enforcement. Once a libel or defamation has been committed, its specific enforcement is not possible. Once the mischief has been done, it cannot be undone. The only things that can be done are to make provision against the future. The third exception is in those cases where the specific enforcement of the duty is inexpedient or inadvisable. Law does not enforce the specific performance of a promise of marriage but is prepared to award damages.

Penal Liability

The theory of penal liability is concerned with the punishment of wrong. Punishment is of four kinds viz., deterrent, preventive, retributive and reformative. The chief object of punishment is deterrence. A penal liability can arise either from a criminal or from a civil wrong. There are three aspects of penal liability and those are the conditions, incidence and the measure of penal liability. As regards the conditions of penal liability, it is expressed in the maxim actus non facit reum, nisi mens sit rea. This means that the act does not constitute guilt unless it is done with a guilty intention. Two things are required to be considered in this connection and those are the act and the mens rea or the guilty mind of the doer of the act. Mens rea requires the consideration of intention and negligence. The act is called the material condition of penal liability and the mens rea is called the formal condition of penal liability.

The law deems a person a fit subject for penal discipline when he has committed a prohibited or prescribed act with a guilty mind. An act does not become wrongful unless followed by a guilty mind. There must be two conditions before fixing penal liability. The first condition is the actus reus or prescribed act. Salmond calls it the physical or material condition of liability. If there is no act, there can be no punishment. To quote Justice Bryan:”The thought of man cannot be tried, for the devil itself knoweth not the thought of man.” Kenny gives the following example:”A man takes an umbrella from a stand at his club with intent to steal it, but finds it is his own.” He has committed no offence. The second condition of penal liability is mens rea or guilty mind. An act is punishable only if it is done intentionally or negligently. Intention and negligence are the alternative forms in which mens rea can exhibit itself. To quote Austin:”Intention or negligence is an essentially component part of injury or wrong, of guilt or immutability, of breach or violation of duty or obligation. Intention or negligence is a necessary condition precedent to the existence of that plight or predicament which is styled guilt or immutability.”[12] A person is liable to be punished if he does a wrongful act intentionally or negligently. If a wrongful act is done intentionally, penal action will serve as a deterrent for the future. If it is done negligently or carelessly, punishment will make the offender more vigilant and circumspect in future. Punishment is justified only when the doer of a pernicious act exhibits a state of mind that renders punishment effective. In the case of wrongs of absolute liability, a person is punished even without mens rea. An attempt to commit a crime can itself be an offence. A criminal attempt is an act done with the intent of committing a crime. The act already done may be innocent but it becomes punishable because it is done with a guilty mind and is an overt act towards the offence intended. An attempt is made punishable because it creates social alarm which itself is an injury, and the moral guilt of the offender is no less than if he had succeeded in committing the crime. Between preparation and attempt, there is no sharp line of distinction and the question whether it is one or the other depends upon the circumstance of each case.

Where the law presumes that there can be no will at all, no penal liability can be imposed. Children under the age of seven are regarded by law as incapable of having mens rm. The same applies to an insane person. In both cases, penal liability cannot be imposed. When the will is not directed to the deed, there can be no liability. This state of mind usually arises from mistake. Mistake to be admitted as a ground of exemption from liability has to satisfy three conditions. The mistake must be such that if the supposed Circumstances were real, they would have prevented any guilt from attaching to the person in doing what he did. The mistake should be reasonable. It should relate to a matter of fact and not of law.

Vicarious Liability

Ordinarily, only that person is liable for a wrong which he has committed himself. However, there are certain cases where one person is made liable for the wrongs committed by another. Such cases are examples of vicarious liability.

Criminal liability is never vicarious except in very special circumstances. However, civil law recognizes vicarious liability in two classes of cases. A master is responsible for the acts of his servants done in the course of their employment. Likewise, legal representatives are liable for the acts of dead men whom they represent.

As regards the liability of a master for the acts of his servants, it is based on the legal presumption that all acts done by his servants in and about his master’s business is done by the express or implied authority of the master. Under the circumstances, the acts of the servant are the acts of the master for which he can be justly held responsible. Salmond points out that there are two justifications for the principle of vicarious liability. It is very difficult to prove actual authority and very easy to disprove it in all cases. There are many difficulties in the way of proving the actual authority which is necessary to establish a conclusive presumption of it. Moreover, while employers are usually financially capable of putting up with the burden of civil liability, that is not the case with their servants. If a servant commits any wrong and a suit is filed against him for damages the injured party can never be sure of realizing the damages even if a decree is passed in favor Of it. That is due to the financial resources of the servants in general; however, if a decree is secured against the employer, there are better chances of recovering the amount on account of the larger resources of me employer.

The common law maxim was that a man cannot be punished in his grave. Under the circumstances, it was held that all actions for penal redress must be brought against the living offender and must die with him. However, the old rule has been superseded. At present the representatives of a dead man. This is possible only in civil cases, but in criminal cases, criminal liability dies with the wrongdoer himself.

Vicarious liability is not common in criminal law. A person cannot be punished for a crime committed by another. He may be punished as an abettor of a crime committed by another but in that case he is punished for his own act of abetment and not for the criminal act itself. Section 155 of the Indian Penal Code provides that whenever a riot is committed for the benefit or on behalf of any person who is the owner or occupier of any land respecting which such riot takes place or who claims any interest in such land, or in the subject of any dispute which gave rise to the riot, or who has accepted or derived any benefit there from, such person shall be punishable with fine, if he or his agent or manager, having reason to believe that such riot was Likely to be committed or that the unlawful assembly by which such riot was committed was likely to be held, shall not respectively use all lawful means in his or their power to prevent such assembly or riot from taking place, and for suppressing and dispersing the same.[13]

Under certain Acts, even corporations are held liable under criminal law. The only acts of which the law takes cognizance as the acts of the corporation are those that are connected with the purposes for which the corporation was created. The only acts that can be ascribed to the corporation are those which it is permissible for the corporation to do as being intra vires of its memorandum of association. In Stevens v. Midland Counties Railway Company, Baron Alderson expressed the view that as a corporation has no mind, it cannot be held liable in any civil action in which malice is a necessary ingredient. In Abrath v. North Eastern Railway Company, Lord Bramwell observed that as a corporation cannot have any motive or malice, an action for malicious prosecution cannot be maintained against a company. The number of corporations has increased tremendously and under the new situation, corporations cannot be absolved of criminal liability for the offences committed by them or their agents. The view of Salmond is that corporations can be made liable on the principle of vicarious responsibility. That principle makes a master responsible for the acts of his servants done in the course of their employment. Corporations are persons in the eye of law and the principle of vicarious responsibility can be extended to them and they can be held liable for the wrongs committed by their agents in the course of their employment. In Citizens Life Assurance Company v. Brown, Lindley, I. held that if a libel is published by the servant of a company in the course of his employment, the company can be made liable for it on the principle of agency. To quote him: ”If it is once granted that corporations are for certain purposes to be regarded as persons, i.e., as principals acting by agents and servants, it is difficult to see why the ordinary doctrines of agency and of master and servant are not to be applied to corporations as well as to ordinary individuals.” It is generally agreed that corporations are vicariously liable for the acts of their agents done in the course of their employment even if express malice cannot be proved in the corporation itself.

As the law stands now, a corporation can be indicted for having committed an offence. The present position is the result of many stages. To begin with, when a crime was committed by the orders of a corporation, criminal proceedings could be taken only against the separate members in their personal capacities and the corporation itself was held immune from criminal liability. Later on, an indictment against a corporation was made in the case of offences of non-feasance. That was due to the fact that omission or non-feasance could not be imputable to any individual agent but solely to the corporation itself. Still later on, indictments were made even for misfeasance.

There is no difficulty in indicting a corporation but there may be difficulty in punishing it. A corporation has no soul to be damned. There is a limit to the range of criminal sanctions that can be imposed in case of a corporation. That limit is that a corporation can be prosecuted only for those offences which can be punished by fines inflicted on the corporation. If the orders of a corporation have resulted in serious offences which cannot be punished adequately by fines or penalties, the particular members of the corporation responsible for them should be individually indicted in their own name and punished in their own persons. The acts, whether tortuous or criminal, for which corporate property becomes liable, are the acts of the directors or agents of the corporation. When a corporation is made liable for those acts, the property of the corporation or its shareholders is made liable for those acts. The view of Salmond is that the directors of a corporation are only the agents or servants of the shareholders and there is no violation of natural justice by making the corporate property liable for the acts of the directors of the corporation.

Absolute or Strict Liability

Both in civil and criminal law, mens rea or guilty mind is considered necessary to hold a person responsible. However, there are some exemptions to the general rule. In those cases, a person is held responsible’ irrespective of the existence of either wrongful intent or negligence, such cases are known as the wrongs of absolute liability.[14] In such cases, a person is punished for committing wrongs even if he has no guilty mind. The law does not enquire whether the guilty person has committed the wrong intentionally, negligently or innocently. It merely presumes the presence of the formal conditions of liability. There are many reasons why provision is made for absolute liability but the most important reason is that it is difficult to secure adequate proof of the intention or the negligence of the offender.

The most important wrongs of absolute liability fall into three category ties, viz., mistakes of law, mistakes of fact and accidents.

(1) Absolute responsibility in the case of a mistake of law is based on the legal maxim that ignorance of law is no excuse (ignorantia juv ris neminem excusat). Even if a person commits an offence on account of a mistake of law, that is no excuse in the eye of law. He is liable to be punished although he had no guilty mind at the time of committing the offence. There are many reasons why a mistake of law is not considered as an excuse for committing the offence. Law is the embodiment of common sense and natural justice and hence must be obeyed. Law both can and should be limited in extent. According to Salmond:”The law is in legal theory definite and knowable; it is the duty of every man to know that part of it which concerns him; therefore, innocent and inevitable ignorance of the law is impossible. Men are conclusively presumed to know the law, and are dealt with as if they did know it, because, in general, they can and ought to know it.” According to Austin:”The reason for the rule in question would seem to be this. It not frequently happens that the party is ignorant of the law, and that his ignorance of the law is inevitable. But if ignorance of law were a ground of exemption, the administration of justice would be arrested. For, in almost every case, ignorance of law would be alleged. And for the purpose of determining the reality and ascertaining the cause of the ignorance, the courts were compelled to enter upon Questions of fact, inscrutable and interminable. That the party shall be Presumed peremptory cognizance of the law, or (changing the shape of the expression) that his ignorance shall not exempt him, seems to be a rule so necessary that law would become ineffectual if it were net applied by the courts generally.”

However, there are certain exceptions to the general rule that the ignorance of law is no excuse. The above principle applies only to the general laws and not to any special law. Ignorance of a, special law is excusable. No person can be held guilty for the violation of the foreign law of any country. It also does not apply to the rules of equity as developed in England.

(2) In criminal cases, a mistake of fact is a good defense against absolute liability. However, in the case of civil law, a mistake of fact involves absolute liability. According to Salmond: ”It is the general principle of law that he who intentionally or semi-intentionally interferes with the person, property, reputation or other rightful interests of another, does so at his peril, and will not be heard to allege that he believed in good faith and on reasonable grounds in the existence of some circumstances which justified his act. If I trespass upon another man’s land, it is no defense to me that I believed it on good grounds to be my own.”

(3) Inevitable accident is commonly regarded as a ground of exemption from liability in civil and criminal cases. An accident is either culpable or inevitable. It is culpable when it if due to negligence. It is inevitable when its avoidance requires a degree of care exceeding the standard demanded by law. There is one important exception to the above rule in civil law. There are cases in which law provides that a man shall act at his peril and shall take his chance if an accident happens. If a person keeps wild beasts, lights a fire, constructs a reservoir of water, accumulates upon its land any substance which can do damage to his neighbors if it escapes or erects dangerous structures by which passengers on the highway can be harmed, he does all these things at his peril and has to pay damages to the injured parties. In the case of Rylands v. Fletcher, it was held:”If a person brings or accumulates on his land anything which, if it should escape, may cause damage to his neighbors, he is responsible. If it does escape, and causes damage, he is responsible, however careful he may have been and whatever precaution he may have taken to prevent damage.”[15]

Circumstances of the act

It is necessary to take into consideration the time and place of the commission 0f the act. It is important to know as to where the act was commenced and where the same was completed. These facts help to determine the jurisdiction of the court which has to try the offence.

Mens rea (guilty mind)

A fundamental principle of criminal law is that a mere act does not constitute a crime. It requires a guilty mind or mens rea behind it. This principle is based on the maxim nctus non facit reum, nisz’ mens sit rea, which means that an act does not make guilty unless there is a guilty mind. Two conditions must be satisfied before a criminal liability can be imposed. The first condition is a physical condition which means the existence of an unlawful act. The second condition is the mens red or the guilty mind. Unless and until both conditions are present at the same time, no criminal liability arises. A guilty mind must consist of either intention or negligence. Very often, even knowledge of the consequences will be considered as a part of the guilty mind because the mental condition of an individual can be ascertained only through his conduct and it is rather difficult to ascertain whether it is done intentionally or with the knowledge of the consequences. The guilty mind does not depend generally on the nature or motive behind the act. Guilt has to be in the immediate intent or negligence.[16] Mens rea must extend to the three parts of an act viz., the physical doing or not doing, the circumstances and the consequences. If mens rea does not extend to any part of the act, there should be no guilty mind behind the act. The act of shooting involves all the three factors. There is physical doing or omitting to do. A person is in the range of the revolver and the revolver is also loaded. As regards the consequences, the trigger falls, the bullet is discharged and it enters the body of the Victim.

Where the law prohibits an act, it prohibits it in respect of its origin, its circumstances and its consequences. Out of the numerous circumstances and the endless chain of consequences, law selects some as material and they alone constitute the wrongful act, the rest being irrelevant. In the case of the offence of theft, time of the day when it is committed is irrelevant, whereas in the case of the offence of housebreaking, the hour during which it is committed becomes relevant in assessing the magnitude of the liability of the offender. Section 456 of the Indian Penal Code considers housebreaking by night as an aggravated offence, whereas mere housebreaking not as a lesser offence.

Stages in the Commission of a Crime

The commission of every offence has four stages viz., intention to commit it, preparation for its commission, attempt to commit it and its commission.

Intention. -As regards the intention to commit, it does not constitute an offence if it is not followed by an act. The Will is not to be taken for the deed unless there is some external act which shows that progress has been made in that direction or towards maturing and affecting it. For example, R comes to know that S intends to shoot T”the next day in X Square at 8 p.m. R informs the police about it. The following day S is arrested in X Square a few minutes before 8 p.m. On his search, he is found in possession of a fully loaded revolver. In this case, 5 had not committed any offence (assuming that he had a valid license for the revolver). He had so far merely intended to shoot T.

Preparation.-Preparation consists in devising means for the commission of an offence. Section 511 of the Indian Penal Code does not punish acts done in the mere stage of preparation. Mere preparation is punishable only when the preparation is to wage war against the State (Section 152) or to commit dacoity (Section 399). Before a person passes beyond the stage of preparation and reaches a point where he commits an offence, he may give up the idea of committing the crime. In that case, he is not punishable under the Indian Penal Code. Law allows a locus penitentiae and will not hold that a person has attempted to commit a crime until he has passed the stage of preparation. A person who contemplates murder buys a pistol and takes a railway ticket to the place where he expects to find his Victim. As he has not gone beyond the stage of preparation, he is not guilty of any offence.

Attempt. -As regards attempt, it is the direct movements towards the commission after preparations are made. For the offence of attempt, there must be an act done with the intention of committing an offence. An attempt can only be manifested by acts which would end in the consummation of the offence but for the intervention of circumstances independent of the will of the party. An attempt is possible even when the offence attempted cannot be committed. For example, people in tending to pick the pocket of other thrusts his hand into the pocket, but finds it empty.

If the attempt to commit a crime is successful, the crime itself is committed. Where attempt is not followed by the intended consequences, Section 511 of the Indian Penal Code applies. A person intends to set a rick of corn on fire. He takes out a cigarette, lights it and blows out the match. The act of lighting a match was a direct overt act converting preparation into attempt. The man had committed an offence of attempt to set fire to the rick.

There is an important difference between preparation to commit an offence and attempt to commit an offence. Preparation consists in devising or arranging the means or measures necessary for the commission of an offence. Attempt is the direct movements towards the commission after the preparations are made. R may purchase and load a gun with the declared intention to shoot his neighbor. However, until some movement is made to use the weapon upon the person of his intended Victim, there is only preparation and not an attempt.

An attempt is made punishable because every attempt, whether it fails or succeeds, must create alarm which itself is an injury. The moral guilt of the offender is the same as if it had succeeded. Moral guilt must be united to injury in order to justify punishment.

Commission of crime.-The last stage in the commission of a crime is that it is successfully committed and the consequences of the crime materialize.

Measure of Penal Liability

According to Salmond, three elements should be taken into consideration in determining the measure of criminal liability and those are the motive of the offence, the magnitude of the offence and the character of the offender.

(1) As regards motive of ofence, other things being equal, the greater the temptation to commit the crime, the greater should be the punishment. The object of punishment is to suppress those motives which lead to crimes. The stronger these motives are, the severer must be the punishment in the case. If the profit to be gained from the act is great, the punishment should also be severe proportionately. However, there is an exception to the general rule. Certain offences may be committed on account of urgent necessity or other exceptional circumstances. If a person is forced to steal to feed his starving children, the law generally takes this fact into consideration to lessen the punishment.

(2) Other things being equal, the greater the magnitude of the offence, the greater should be its punishment. Such a consideration may seem to be irrelevant. It may be contended that punishment should be measured solely by profit derived by the offender and not by the evils caused to other persons. If two crimes are equal in point of motive, they should be equal in point of punishment. However, this is not the case in actual practice and this is due to two causes. The greater the mischief of any offence, the greater is the punishment which it is profitable to inflict ‘with the hope of preventing it. It is worthwhile to hang any number of murderers in order to deter one murderer and save one innocent person. However, it is not worthwhile to hang one person and stop all petty thefts. Another reason why different punishments are given for different kinds of offences is that such a system induces persons to commit the least serious offences. If punishment for burglary were to be the same as that for murder, the burglar would not stop at a lesser crime. There will be a temptation to commit offences of a very serious nature as punishment is the same in both cases. If an attempt is punished in the same way as a completed offence, the offender would not atop at the attempt but would like to complete the act as well.

(3) The character of the offender should also be taken into consideration while determining the measure of criminal liability. The worse the character or disposition of the offender, the more serious should be the punishment. The fact Which indicates depravity of disposition is a circumstance of aggravation. It calls for a penalty in excess of that which would otherwise be appropriate to the offence. The law imposes upon habitual offenders penalties which bear no relation to the magnitude of the offence. A punishment which is suitable to a normal man will be absolutely inadequate in the case of a hardened criminal. Experience shows that the badness of disposition is commonly accompanied by a deficiency of sensibility. If a person is of a depraved character, he loses all sense of shame. The most degraded criminals are said to exhibit insensibility even to physical pain. Many murderers of the worst type show indifference to death itself. In cases short of capital offences, it is desirable to punish more severely the more corrupt.

The Indian Penal Code provides that a previous convict should be awarded an enhanced period of imprisonment. The first offenders are usually let off or treated very leniently. Sometimes the offenders are let off on probation of good conduct on account of their age, character, antecedents or physical or mental condition of the accused and the circumstances in which the offence was committed.

Measure of Civil Liability

In the case of a civil wrong, motive is irrelevant. It is only the magnitude of the offence that determines civil liability. The liability of the offender is not measured by the consequences which he meant to ensue, but by the evil which he succeeded in doing. The liability consists of the compulsory compensation to be given to the injured person and that is to be considered as a punishment for the offence. In penal redress, compensation in money is given to the injured person and punishment is imposed upon the offender. A rational system of law must combine the advantages of penal redress with a coordinate system of criminal liability. The reason is that penal redress alone is not considered to be sufficient.

Crime and Tort

It is difficult to draw a clear-cut distinction between a crime and a tort. Tort today may be a crime tomorrow and vice versa. However, it is desirable to distinguish between the two terms.

According to Blackstone, torts are private wrongs and involve”infringement of the civil rights which belong to individuals considered merely as individuals”. On the other hand, crimes are public wrongs and involve”a violation of the duties due to the whole community”. Thus, the distinction between the two lies in the nature of offence. If the offence is serious, it is to be treated as a crime, and if it is not, it is to be treated as a tort.

Austin does not accept the view of Blackstone. He points out that some wrongs are both crimes and torts. For example, an assault or a malicious prosecution may be a tort as well as a crime. All public wrongs are not crimes. It is a public duty to pay tax to the state but a refusal to do so is not a crime. All crimes may not be public wrongs. The theft of. A chair is a crime but it cannot be said that the public is affected thereby. The view of Austin is that the distinction between a crime and a tort is purely procedural. If the wrong is a crime,”the sanction is enforced at the discretion of the sovereign”. In the case of a tort,”the sanction is enforced at the discretion of the party whose right has been violated”. In the case of crime, the machinery of law is set in motion by the State. In the case of a tort, the machinery is set in motion by the individual concerned. In the case of a crime, the State launches the prosecution and it can also withdraw the same. In the case of a tort, a suit for damages is brought by the party concerned. If he gets a decree in his favor, the State cannot interfere and lessen the amount. The State also cannot force a private individual to withdraw the suit filed by him against the wrongdoer.

The view of Salmond is that the views of both Blackstone and Austin are not correct. He points out those criminal proceedings can be started in many cases even by a private individual. A criminal complaint can be filed even by the injured party. The view of Salmond is that the distinction between a crime and a tort is based on the nature of the remedy applied. In the case of a crime, the object of the legal proceedings is the punishment of the offender. However, that object is the payment of damages in the case of tort. The view of Salmond has been accepted by the courts in England and a reference may be made to the case of Clifford and O’Sullivan.[17] In that case, Lord Cave observed:”To be a criminal matter it must involve the consideration of some charge of crime, that is to say, of an offence against the public law; and that charge must have been preferred before some court of judicial tribunal having or claiming jurisdiction to impose punishment for the offence or alleged offence.”

The distinguishing mark of a crime is that it involves liability to punishment. However, it is contended that the view of Salmond does not contain the whole truth. In criminal cases, the court can and sometimes does order payment of compensation to the injured party. In the case of tort, exemplary damages are sometimes awarded as punishment to the wrongdoer. Prof. Allen maintains that although punishment is a distinguishing mark of crime, it does not explain the nature of crime itself. To quote Allen:”It is not enough to know that crime is punishable wrong, the problem is why it is punishable.” Allen is in favor of the view of Blackstone. Grime is a crime because it is wrongdoing and in serious degree threatens the well-being of society.

It is to be observed that there is some truth in all the views mentioned above. A crime has been defined as a breach of public duty, the sanction of which is punishment eligible or remissible at the discretion of the sovereign acting according to law. A tort is defined as a breach of duty affecting private individuals not arising out of trust or contract, the sanction of which is compensation eligible or remissible at the discretion of the party whose right has been infringed.

In Halsbury’s Laws of England, crime is defined in these words:”A crime is an unlawful act or default which is an offence against the public and renders the person guilty of the act or default liable to legal punishment. While a crime is often also an injury to private person, who has a remedy in a civil action, it is an act or default contrary to the order, peace and well-being of society that a crime is punishable by the State.”

Exemptions from Criminal Liability

The general rule is that a person is liable for any crime committed by him However; there are certain exceptions to this general rule. The general rule does not apply in the case of a mistake of fact. If a person does something under a mistake without intending to do which he actually does, he is not criminally liable for his action. A police constable goes to arrest A but actually he arrests B thinking B to be A. In this case, the police constable is not guilty of any crime because there was no guilty mind when he arrested B. However, it must be noted that the mistake must be reasonable, and there should be no liability for the act actually done under a mistake. In the case of Tolson, a woman married another person under a bona fide belief that her husband had died in a shipwreck. Later on, it was found that he had actually survived the Shipwreck. The woman was prosecuted for bigamy. However, she was acquitted.

Another exception is that a person is not held guilty when he does something under circumstances in which he is absolutely helpless. This is called the principle of jus necessitatis. An example was given by Bacon to illustrate this. Two shipwrecked sailors caught hold of a single plank which could carry only one of them. It was under those circumstances that one sailor pushed the other into the sea. The sailor, who was saved, was prosecuted. It was held that he was not guilty on account of the circumstances in which he was placed. Likewise, if a person kills another person in self-defense he also does not commit any offence. However, it is to be noted that there are certain limitations on the principle of jus necessitatis. In R v. Dudley, two shipwrecked sailors ate a boy who was in their company in order to save themselves from starvation. They were prosecuted for murder. They took up the plea of jus necessitatis. It was held that the plea of jus necessitatis was not available to them.[18] However, as the situation in which they were placed was an abnormal one, a recommendation was made to the Crown for mercy and their punishment was reduced to six months imprisonments

Another exception is in the case of infants when children under the age of 8 are exempted from criminal liability. It is presumed that children of tender age have no guilty mind. Another exception is in the case of inevitable accident which cannot be averted by taking reasonable care. There is no intention because the consequences are not desired in the case of an accident. However, this principle is not absolute. It was held in the case of Rylands v. Fletcher that if a person keeps admittedly dangerous property on his premises and harm is caused by its escape, that person is liable for the injury Caused. The plea of inevitable accident is not available.

















[17] (1921) 2 AC 570