UNIT 3 PRINCIPLES OF LIABILITY

Structure
3.1 Introduction
3.2 Objectives
3.3 Crime and Civil Wrong
3.4 Basic Principle of Liability
3.5 Summary
3.6 Terminal Questions
3.7 Answers and Hints

3.1 INTRODUCTION
It is not easy to define the term 'crime'. However, we can only give a broad
meaning to it by saying that it means an act which is prohibited by law and
revolts to the moral sentiment of the society. It is considered to be an act which
endangers life, property and peace and tranquility of the members of the society
protection of which is primary function of the state. It can also be stated to be
wrong which the criminal policy of the state treats as a wrong which should be
punished by impinging on the civil liberties of wrongdoer. In order to draw a
distinction between civil and criminal liability it is necessary to know what is a
wrong of which moral, civil and criminal wrongs are species. There are certain
acts done by us which majority of civilized members looked upon with
disapproval because they have the tendency to reduce the sum total of human
happiness. However, evil tendencies and the reflex action in the society of various
wrongs differ in degree. Some of them are not considered to be serious enough
of which law should take notice. Such acts or wrongs are only disapproved like
disobeying or showing scant respect for elders or speaking of a lie etc. which
may be designated as moral wrongs and are left to be corrected by social laws
and laws of religion.

3.2 OBJECTIVES
After reading this unit, you should be able to:

• discuss the difference between crime and civil wrong; and

• analyse the basic principle of criminal liability.

3.3 CRIME AND CIVIL WRONG

There are other wrongs which are considered serious enough to attract the notice
of law. They are considered grave enough by the society and are visited with by
infliction of some pain on the wrongdoer or by calling upon him to make the
good loss to the wronged person. Those wrongs for which punishment is
prescribed, we call them as crimes; but if the law does not consider it serious
enough to award a punishment and allows only indemnification or damages, we
call such a wrong as a civil wrong or tort. All crimes are graver than torts or civil
wrongs. Crimes constitute greater interference with the happiness of others and
18
 affect the well being not only of the particular individual wronged but also of the Principles of Liability
community as a whole.

Further, the impulse to commit crime is very strong and the advantage to be
gained from the wrongful act is often so great and the risk of detection so small
that human mind is tempted to commit such wrongs. This can be illustrated by
referring to the cases of pickpockets, gamblers and swindlers. Also crimes are
ordinarily deliberate acts directed by an evil mind, are harmful and affect the
very security of the society. They are singled out for punishment for achieving
the following objects:

i) Making an example of the criminal and to deter him from repeating the
same cnme.

ii) Reforming him by making him become a better person.

iii) By satisfying society's feeling of vengeance and retribution.

• Civil wrongs on the other hand are less serious wrongs primarily directed against
individuals and do not directly affect the society at large.

It may be noted that since punishment for a crime directly impinges the civil
liberties which the law zealously guards, the accused is treated with great care
than the defendant in'civil cases. The procedure and rules of evidence are modified
in order to minimise the chances of innocent being punished. It is a fundamental
principle of criminal jurisprudence that if there is a reasonable doubt regarding
the guilt of the accused, benefit of doubt is always given to the accused. In case
of civil wrongs mere preponderance of evidence is sufficient to prove the case of
the plaintiff while as in criminal trial the guilt of the accused is to be proved to
the hilt i.e. beyond reasonable doubt. A defendant in a civil case is not given any
such benefit of doubt. Crimes and civil actions are generally dealt with by different
tribunals/courts. Crimes are tried in criminal courts while as the civil wrongs
are tried in the civil courts. In case of a civil injury the purpose to be achieved is
to identify the individual who has been wrong and to put him, as far as practicable,
in the position he was before he was wronged. In civil cases the individual
wronged can compromise the case where as in criminal cases generally speaking
it is the state alone, as the protector of the rights of its subjects, which pursues
the matter against the offender inspite of the injured party. Subject to certain
exceptions, it is the state which takes all the steps to bring the culprit to book on
the basis of the evidence procured against him during investigation to prove his
guilt inspite of the injured party.

3.4 BASIC PRINCIPLE OF LIABILITY

It is the fundamental principle of criminal law that an act in order to be criminal
must be done with malice or mens rea or with criminal intent. Actus non facit
reum, nisi mens sit rea which is the basic principle of criminal liability is a
celebrated rule of criminal jurisprudence and it means that the act alone does not
make a man guilty unless the intentions were so. This basic principle of criminal
law which makes guilty mind as an essential ingredient of an offence
accompanying an unlawful act which distinguishes a crime from civil injuries.
It must at the same time be remembered that inspite of the above distinctions,
however, crimes and torts are complementary and not exclusive of each other.
19
General Principles of Certain acts can give rise to both criminal and civil actions. Negligent driving as
Criminal Law
well as defamation are both actionable under criminal law as well as under law
of torts. Rash driving resulting in injury or death of the pedestrian can make a
person liable for punishment under criminal law as well as damages under the
law of torts.

Besides mens rea and actus reus as two basic elements of crime, there are two
more indispensable elements, reference to which is necessary and they are namely:
Firstly, "a human being under legal obligation to act in a particular way and a fit
subject for infliction of punishment" and secondly, "an injury to another human
being.or to the society at large." Thus the four elements that go to constitute a
crime are as under:

i) A human subject under legal obligation to act in a particular way and a fit
subject for the infliction of the appropriate punishment;

ii) An evil intent or mens rea on the part of such a human being;

iii) Actus reus i.e. an act committed or omitted in furtherance of such an intent;
and

iv) An injury to another human being or to society at large by such an act. Such
an injury should have been caused to another person in body or mind or
reputation or property.

It must be remembered, however, that the form of mens rea, actus reus and the
forbidden consequence resulting from the act of the accused varies from offence
to offence and also in respect of offences against human body, property and
other offences. However, it can generally be said that if all the above four elements
are present, generally, we say that a crime has been committed. However, in
some cases it will be noticed that a crime is constituted merely by doing an act or
acts or committing illegal omission or omissions resulting in forbidden
consequences even though there is no mens rea as all. They are known as cases
of strict liability. Again in some cases an offence is constituted, although the
actus reus has not resulted into a forbidden consequence and no injury has resulted
to any person. Such cases are known as inchoate crimes, like attempt, abetment
or conspiracy. These become punishable because they create alarm in the society
and jeopardize the security of the society and are nonetheless punishable although
no forbidden consequence ensues. In attempts the offender does everything to
commit the offence but the forbidden consequence does not ensue not because
the accused did not intended but because of certain circumstances supervening
which were beyond the control of the accused.

Self Assessment Question

1) What are the four elements of crime?

..

20
 Principles of Liability
3.5 SUMMARY
It is a fundamental principle of criminal law that an act in order to be criminal
must be done with malice or mens rea or with criminal intent. "actus non facit
reum, nisi mens sit rea" is the cardinal rule of criminal liability which means that
••
an act alone does not make a man guilty unless the intentions were so. Besides,
"mens rea" and "actus rea" as two basic elements of crime, there are two more
indispensable elements, reference to which is necessary and they are namely,
firstly, a human being under legal obligation to act in a particular way and a fit
subject for infliction of punishment and secondly, "an injury to another human
being or to the society at large".

3.6 TERMINAL QUESTIONS

1) Discuss in detail the basic principle of criminal liability.
2) Differentiate between crime and civil wrong .
.
r
3.7 ANSWERS AND HINTS
Self Assessment Question
1) Refer to Section 3.4

Terminal Questions
1) Refer to Section 3.4

2) Refer to Section 3.3

21