XVII

LIABILITY

Definition and Nature

Accordingto Salmond
: "Liability or responsibilityis thebond
of necessit
y that existsbetweenthe wrongdoerandthe remedyof
e wrong
th ." Accordingto Markby
: "The wordliabilityis used
todescrib
e theconditionof a personwhohasadutytoperform
."
Liabilityimpliesthestateof a personwhohasviolated the right
or actedcontraryto duty
. ,
However Austinprefers
tousethe
term''imputability to '.'liability To quotehim
: "Those certain
,
es
forbearanc s
commission
or acts
, togetherwith suchoftheir
,
consequences as it was the purpose of the duties to avert
, are
imputableto the personswhohaveforborne
, omittedoracled
.
Ortheplightor predicament
ofthepersonswho haveforborne
,
d
omitte or acted
, is styledimputability
." Theliabilityof a
personconsistsin thosethings which he must do or suffer
. It
is the ultimatum of the law and hasits source in the supreme will
of the Stale
. A personhasa choice in fulfilling his duly and
hisliability arisesindependently of his choice
. It cannotbe
d
evade atall
. Liabilityarisesfromawrongor thebreachof a
.
duty
Kinds of Liability
s
Liabilitie
canbeofmany.kinds Those
arecivilandcrimi
-
l liability
na , remedial
andpenalliability
, vicarious
liabilityand
e
absolut orstrictliability
.
Civil Liability
l liabilit
Civi
y istheenforceme
nt oftherightof theplaintift
st thedefenda
again nt incivilproceedings
. Criminal
lability
isthe
yliabilit tobepunishe
d inacriminal.
proceeding
Acivilhability
s riseto civil proceedings
give whosepurposeis the enforcement
ofcertai
n rightsclaimedby theplaintiffagainstthedefen
-
.
dant Examplesof civil proceedings
are an action for recovery
 LIABILITY 417

of a debt
, restoration of property
, the specificperformanceof
a contract
, recoveryof damages
, the issuing of an injunction
againstthethreatenedinjury
, .
etc It is possiblethat the same
wrongmay giverise to both civil and criminal proceedings
. This
issoin casesof assault
, ,
defamation theft and maliciousinjury
to property
. In such cases
, the criminal proceedingsare not
alternative proceedings but concurrent proceedings
. Those are
independentof the civil procedings
. The wrongdoer may be
punishedby imprisonment
. He may be orderedto pay compen
-
sation to the injured party
. The outcomeof proceedingsin civil
and criminal liability is generally different
. In the caseofcivil
,procedings theremedyis in the form of damages
, a judgment
for the paymentof adebt
, aninjunction
, specificperformance
,
deliveryof possessio
n of properly
, a decreeof divorce
, .
elc The
ss for criminalliabilityis in the formofpunishment
redre which
may bein the form ofimprisonment
, fine or death
. In certain
,
casestheremedyfor both civil and criminal liability may be the
,
same ., the payment of money
viz . In certain cases
, -
imprison
mentmay beawardedfor both civil and criminal liability
. Even
in a civil case
, if aparty daresto defy an injuncion
, he canbe
.
imprisoned Civil liability is measured by the magnitude of the
wrong donebut while measuring criminal liability we takeinto
ion
considerat
themotive
, ,
intention
character
oftheoffender
and
the magnitude of the offence
.

al
Remedi Liability
Accordingto this theory
, if a duty is createdby law
, the
lattershoul
d seetoit thatthe sameis performed
. Theforceof
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 causedby the
violationof a right
, thesamecan be remediedby compellingthe
n
perso boundto complywithit. Thereis noideaofpunishment
in the theory of remedial liability
. ,
However there are three
exceptionsto the general rule that a man must be forced to do
by theforceof law whatheis boundto doby aruleof law
. The
first exceptionis in the case of an imperfect obligation or duty
.
Thebreachof animperfectduty doesnot giveriseto acauseof
.
action A time
-barred debt creates an imperfect duty and the
samecannotbe enforcedby any court of law
. The secondexcep
-
418 JURISPRUDENCEAND LEGAL THEORY .[СнАр

tion is in thosecaseswhereduties are impossible of specific

.
enforcement Oncea libel or defamationhasbeencommitted
,
its specific enforcement is not possible
. Once the michief has
beendone
, it cannot be undone
. Theonly thingsthat canbe
doneis to makeprovisionagainst the future
. The third excep
-
tionisin thosecaseswherethespecificenforcement
oftheduty
is inexpedient or inadvisable
. Law doesnot enforce the specific
performance of a promise of marriage but is prepared to award
.
damages

l
PenaLiability
Thetheoryof penalliabilityis concerned
withthepunish
-
mentof wrong
. Punishmentis of four kindsviz
., deterrent
,
,
preventive retributive and reformative
. The chief object of
t
punishmen
is deterrence
. A penalliability canariseeitherfrom
a criminal or from a civil wrong
. There are threeaspectsof
penalliability and thosearethe conditions
, incidenceand the mea
-
sureof penal liability
. As regardstheconditions of penalliability
,
it is expressedin the maxim aclus non facit reum
, nisi menssit tea
.
This meansthat theact doesnot constitutea guilt unlessit isdone
with a guilty intention
. Two things are required to be consi
-
dered in this connection and those are the act and the mensrea
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 mensrea is called the
formal condition of penal liability
.

Thelaw deemsa personafit subjectfor penaldisciplinewhen

he has committed a prohibited or prescribed act with a guilty
.
mind An act doesnot becomewrongful unlessfollowed by a guilty
.
mind There must be two conditions beforefixing penalliability
.
Thefirstconditionis the actusreusor prescribed .
act Salmond
s it thephysicalor materialconditionofliability
call . If thereis no
, ther
act e canbenopunishment
. Toquote
Justice
:
Bryan"The
t
though of man cannotbe tried
, for the devil itselfknowethnot
e thoug
th ht ofman
." Kenny
gives
thefollowing
:
example
"A
ma takesan umbrellafrom a standat hisclubwithintentto
n
l it, butfindsit ishisown
stea ." He hascommitted
' nooffence
.
e secon
Th d conditionof penalliabilityismens
reaorguiltymind
.
]
XVII LIABILITY 419

Anactispunishabl
e onlyif it isdoneintentionally
ornegligently
.
n
Intentio andnegligencearethealternative formsin whichmens
reacan exhibititself
. To quoteAustin
: "Intention or negligence
is an essentiallycomponentpart of injury or wrong
, of guilt or
,
imputabilityofbreachor violationofduty or obligation
.... -
In
tention or negligenceis a necessarycondition precedentto the
existenceof that plight or predicament which is styled guilt or
."
imputability A personis liable to be punishedif he doesa
wrongful act intentionally or negligently
. Ifa wrongful act is
doneintentionally
, penal action will serveasa deterrentfor the
.
future If it is done negligentlyor carelessly
, punishmentwill
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
thecaseofwrongsofabsoluteliability
, a personis punishedeven
without menstea
.

An attempt to commit a crime can itself be an offence

. A
criminal attemptis an act done with the intent of committing a
.
crime The act already done may be innocent but it becomes
punishablebecauseit is done with a guilty mind andis an overt
act towards the offence intended
. An attempt is madepunish
-
ablebecaus
e it creates
socialalarmwhichitselfis aninjury
, and
the moral guilt of the offender is no lessthan if he had succeeded
in committingthe crime
. Betweenpreparationand attempt
,
there is no sharp line of distinction and the question whether it
is oneor the other dependsuponthe circumstanceof eachcase
.
Where the law presumesthat there can be no will at all
, no
penal liability can be imposed
. Children under the age of seven
are regarded by law asincapable of having menstea
. The same
appliesto an insaneperson In both cases
, penallability cannot
b imposed
e . Whenthewill isnotdirectedto thedeed
, therecan
benoliability This stateof mind usuallyarises from mistake
.
e
Mistak to beadmittedas a ground of exemption fromliability
hasto satisfy three conditions
. The mistake must besuchthat
if thesuppose
d s
circumstance werereal
, theywouldhavepre
-
d
vente anyguilt from attachingto theperson
in doingwhathe
.
did The mistakeshould be reasonable
. It shouldrelate to a
matterof factandnot of law
.
420 JURISPRUDENCEAND LEGAL THEORY .[CHAP
s
VicariouLiability
,
Ordinarily only that person is liable for a wrong which he
hascommittedhimself
. ,
However there are certaincases
where
one person is made liable for the wrongs committed by another
.
Such casesare examples of vicarious liability
.

Criminal liability is never vicarious except in very special

.circumstances However
, civil law recognisesvicariousliability
in two classesof cases
. A masteris responsiblefor the actsof
hisservantsdonein the courseof their employment
. ,
Likewise
legales
representativ
areliable for the actsof deadmenwhom
they represent
.

Asregardstheliability of amasterfor the actsof his servants

,
it is based on the legal presumption that all acts done by his
ts
servaninandabouthismaster's
business
aredonebytheexpress
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 vicariousliability
. It isvery
difficultto proveactualauthority and very easyto disproveit in
all cases
. Therearemany difficultiesin the way ofprovingthe
actual authority which is necessaryto establisha conclusive
presumptionof it. Moreover
, while employersareusuallyfinan-
cially capableof putting up with the burden of civil liability
, that
is not the casewith their servants
. If a servantcommitsany
wrongand a suit is filed againsthim for damages
theinjured
party can never be sure of realizing the damages even if a decree
is passe
d in favour of it. That is due in the financialresources
of the servantsin general
. ,
However if a decreeis secured
against
the employer
, there are better chances of recovering the amount
onaccountofthelargerresources
oftheemployer
.
The common law maxim wasthat a man cannot be punished
in hisgrave
. Underthecircumstance
s, it washeldthatall actions
forpenalredres
s mustbebroughtagainstthelivingoffender
and
st di
mu e withhim
. ,
However
theoldrulehas
been
.supersede
At presen
t therepresentatives
of a deadman areliableforthe
gs done
wron byhimwhileliving
. Therightoftheinjuredparty
torecei
ve redre
ss continu
es against
therepresentativ
es ofthedead
]
XVII LIABILITY 421

.
man Thisis possible
onlyin civil cases
, but in criminalcases
,
criminal liability dies with the wrongdoer himself
.
Vicariousliability is not common in criminal law
. A person
cannotbe punishedfor 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 Codc
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 suchland
, or in the subject of any disputewhichgaverise to
theriot
, orwhohasaccepieror derived any benefittherefrom
,
h perso
suc n shallbepunslable
withfine
, if heorhisagent
or
,
manager havingreasonto believethat such riot waslikely to be
committedorthat theunlawful assemblyby whichsuchriot was
committedwaslikely to beheld
, shall not respectively
useall law
-
ful mean
s in his or theirpowerto preventsuch assembly
orriot
from taking place
, and for suppressingand dispersingthe same
.
UndercertainActs
, evencorporationsare heldliable under
criminal law
. The only acts of which the law takes cognisance
asthe acts of the corporation are those that are connected with
the purposes for which the corporation was created
. The only
s that canbe ascribedto the corporationarethosewhichit is
act
permissible for the corporation to do as being intra vires of its
memorandum of association
. In Slevensv. Midland CountzesRail
-
wayCompany
, BaronAldersonexpressedthe view that asa corpo
-
ration hasno mind
, it cannotbe held liable in any civil actionin
whichmaliceis a necessary.ingredient In AbrathV . NorthEns-
lern Railway Company
, Lord Bramwell observed that as a cospora
-
tion cannothaveany motive or malice
, an action for malicious
prosecutioncannot be maintained against acompany
. The num
-
ber of corporations hasincreased tremendously and under the new
,
situation
s
corporation
cannotbe absolved
of criminal-liabi
lity for the offences commited by them or their agents
. The
view of Salmond is that corporations can be made lable on the
principle of vicarious responsibility
. That principle makes a
r
masteresponsible
for theactsof hisservantsdonein thecousse
of their employment
. Corporations are persons in the eye of law
 422 JURISPRUDENGE
AND LEGAL THEORY .[Снар

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 CulizensLife
e
Assuranc
Company
v. Brown
, ,
Lindley J. held that if a libel is pub
-
lished by the servant of a company in
thecourse ofhisemploy
-
,
mentthecompanycanbe madeliable for it on the principleof
.agency To quotehim
: "It it is oncegrantedthat corporations
arefor certainpurposesto be regardedas persons
, ., asprinci
i.e -
palsacting by agentsand servants
, it is difficult to seewhy the
ordinary doctrines of agency and of master and servant are not
to beappliedto corporationsaswell asto ordinaryindividuals
."
It isgenerallyagreedthat corporationsare 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

Asthe law stands now

, a corporation can be indictedfor
having committedan offence
. The presentpositionis theresult
of manystages
. To beginwith
, whena crime wascommittedby
theordersof a corporation
, criminal proceedings
couldbetaken
onlyagains
t theseparatemembers in theirpersonal
capacities
and
the corporation itself was held immune from criminal hability
.
Later on
, an indictment againsta corporationwas madein the
case of offences of non
-feasance That was due to the fact that
n
omissio ornon
-feasance couldnot beimputableto anyindividual
agentbut solelyto the corporationitself
. Still later on
, indict
-
ments were made even for misfeasance
.

Thereis no difficultyin indictinga corporation

butthere
maybe difficulty in punishingit. A corporationhasno soulto
bedamned
. Thereisa limit to therangeof criminalsanctions
thatcanbeimpose
d in caseof a corporation
. Thatlimitisthat
acorporatio
n canbeprosecuted onlyfor thoseoffenceswhichcan
e punishe
b d by finesinflictedonthe corporation
. If theorders
ofacorporatio
n haveresulted inseriousoffenceswhichcannot be
punisheadequately
d byfinesorpenalties
, theparticularmembers
of the corporation
responsible for themshouldbeindividually
indicted in their own nameand punishedin their ownpersons
.
Theacts
, whether tortious or criminal
, for which corporatepro
-
y becom
pert es ,
liablearetheactsofthedirectors
oragents
of
]
XVII LIABILITY 423

the corporation
. When a corporation is made liable for those
,
acts the propertyof the corporationor its shareholders
ismade
liable for those acts
. The view of Salmond is that the directors
of a corporationareonlythe agentsorservantsof thesharcholders
d ther
an e isno violationof naturaljusticeby makingthecorpo
-
ratepropertyliablefor the actsof thedirectorsof thecorporation
.
TheIndian PenalCode()Amendment Bill hadalsoproposed
some hability for corporations
.
e
Absolut
or StrictLiability
Bothin civil and criminallaw
, mens
reaor guilty mindis
considerednecessarytohold a personresponsible
. ,
However there
aresome exceptionsto the generalrule
. In those cases
, a person
is heldresponsibleirrespectiveof the existenceof either wrongful
intent or negligence
. Such casesare known as the wrongsof
absoluteliability
. In such cases
, apersonis punishedfor com
-
mitting wrongseven if he has no guilty mind
. The law doesnot
enquire whether the guilty person has committed the wrong
,
intentionally negligentlyor innocently
. It merelypresumes
the
presence of the formal conditions ofliability
. There are many
s
reason why provisionismade for absoluteliability but themost
important reason is that it is difficult to secure adequate proof
of the intention or the negligence of the offender
.
The most important wrongsof absoluteliability fall into three
s,
categorie., mistakesoflaw
viz , mistakes
of factandaccidents
.
)( Absolute responsibility in the case of a mistakeof law is
1
based on the legal maxim that ignorance of law is no excuse
(ignorantiajuris neminem
).
excusat Evenifa personcommits an
offenceon accountof a mistakeof law
, that is no excusein the
eyeof law
. He is liable to be punished although he had no guilty
mindat the time of committingtheoffence
. Therearemany
s
reason
whya mistakeof lawis not consideredasanexcuse
for
g
committin the offence
. Law is the embodimentof common
sense and natural justice and hence must be obeyed
. Law both
can and should be limited in extent
. According to Salmond
:
"The lawis in legaltheory definiteandknowable
; it is theduty
of every man to know that part of it which concernshit
; -
there
424 JURISPRUDENGE
AND LEGAL THEORY .[CHAP

,
fore innocentandinevitableignoranceof thelaw is impossible
.
Men are conclusively presumed to know the law
, and are dealt with
asif theydid knowit, because
, in general
, theycanand oughtto
knowit." Accordingto Austin
: "The reasonfor therule in ques
-
tion would seem to be this
. It not frequently happens that the
party is ignorant of the law
, and that his ignorauce 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
ever case
y , ignoranceoflaw wouldbealleged
. Andfor thepurpose
of determiningthe reality andascertaining
the causeof theigno
-
,rance thecourts were compelledto enter uponquestionsof fact
,
inscrutableand interminable
....... That the party shall bepre
-
sumedperemptory cognizance of the law
, or (changing the shape
of the expression
) that his ignorance shall not exempthim
, seems
to bea rule so necessarythat law would becomeineffectualif it
e notapplied
wer bythecourts
generally
,"
,
Howeverthere are certainexceptions
to the generalrulethat
theignoranc
e of law isnoexcuse
. The above principle appliesonly
to the generallawsand not to anyspeciallaw
. Ignoranceof a .
speciallaw is excusable
. No personcan be held guilty for the
violationof the foreignlaw of any country
. It alsodoesnot
applyto the rules of equity asdevelopedin England
.
) In criminal,casesa mistake
(2 of jactis a gooddefence
againstabsoluteliability
. ,
However in the caseof civil law
, a
e
mistakof factinvolves absolute
,
liability Accordingto Salmond
:
I"t is the general principle of law that hewho intentionally or
-intentionally
semi interfereswith the person
, ,
property reputalion
r othe
o r rightfulinterest
s of another
, does
soathisperil
, and
willnotbeheardtoallegethathebelieved
in good
faithandon
le
reasonab
grounds
in theexistence
ofsomecircumstances
which
justifiedhisact
. If I trespassupon another man'sland
, it is no
nce tom
defe e thatIbeliev
ed it ongood
groundr
tobemyown
."
) Ineuitabl
(3 e t
acciden
is commonly
regarded
asa ground
of
ion
exempt
fromliability
incivilandcriminal
.
cases
Anacciden
is either culpableor inevitable
. It is culpable
whenit is dueto
.negligenceIt is inevitable
whenits avoidance
requires
a degree
of careexceeding the standarddemandedby law
. Thereis
]
XVII LIABILITY 425

one important exception to the above rule in civil law

. There
are casesin which law provides that a man shall act at his peril
and shall take his chanceif an accident happens
. Ifa person
s
keep wild beasts
, lightsa fire
, construcis
a reservoirof water
,
s
accumulateuponitsland anysubstancewhich candodamageto
hisneighboursif i escapesor erectsdangerousstructuresby which
s
passengeron the highwaycan be harmed
, he doesall thesethings
at his peril and has to pay damages to the injured parties
. In the
e of Rylands
cas v. Fletcher
, it was held
: "If a person brings or
accumulates on his land anything ,
which it it should ,
escape may
caus damageto his neighbours
e , he is responsible
, If it does
,
e
escap andcauses
,damageheis responsible
, howevercarefulhe
mayhave beenand whatever precaution he may have takento
preventdamage
."
General Conditions of Liability
Certain general conditions must be satisfied before liability
can arise
. Thoseconditionsare the act
, omissionor forbear
-
e contrarytolawonthepartof theperson
anc liablewhichcauses
,
injury mensreaor guilty mind or the breachof strict duty on the
part of the wrongdoer and the consequences which may take the
form of damageor harm to the injured person
.
Aci
An act has been defined as a muscular contraction but such
a definition is nos suitable for penalliability
. A muscular con
-
traction may be dueto a diseaseand there canbe no penalliabi
-
lity for the same
.

Accordingto Salmond
, "an actis anyeventsubjecttohuman
".
control Accordingto Austin
, an act is a bodily movement
d
cause by volition which is a movementof the humanwill
.
Accordinglo Holland
, an act is a determination of will which
producesan affect in the sensibleworld
.
Acts can be classified variously
. An internal act is an act
of themind and an externalactis an act of thebody
. An exterzal
act alwaysinvolvesan internal act butaninternalact doesnot
y
necessarilinvolvean externalact
. Internaland externalacis
e als
ar o knownasinwardandoutward.acts According
toFiol
-
426 JURISPRUDENCEAND LEGAL THEORY .[CHAP

,
land mere determinationsof the will are inward aets
. -
Deter
mination of will which produces an effect on the world of sensesis
calledan outwardact
. Jurisprudenceis concernedonly with out
-
ward acts
.

Acts may be positive or negative

. A positive act is one in
which somethingis actually done
. A negativeact is onewhere
something is refrained from being done
. Positive acts are acts of
commissionand negative acts are called forbearances
.

An act may be intentional or unintentional

. An intentional
act isone whoseresult is foreseenand desiredby the doer
. An
unintentional act is one whose result is not foreseen or desired
.
In both these cases
, the act may be external or internal or positive
or negative
. An act isnot necessarily
confinedto intentionalacts
.
It may also be unintentional
:

Examples
maybe givento illustratethe abovecategories
of
.acts If aperso
n shootsabird
, hisactispositive
andintentional
.
Xhasan intentionof killingX
. It is an internalact
. If he
s a pistolwith thatintention
buy , hisactis bothpositiveand
intentional Xowesmoneyto I and doesnotpaythe samein
e of demand
spit . Theact of Xisnegative
andintentional
. I
aminvitedtoa dinner
. If I donot goto thedinner,intentionally
my act isnegativeandintentional
. If I missthe dinner because
I forgotall aboutit, my act isnegativeandunintentional
.
ors ofa
Fact n act
: Accordi
ng toSalmon
,
d every
actismade
of
ee part
thr s viz
., themental
andbodilyactivity
ofthedoer
, thecir
-
s
cumstance
andtheconsequences
. If a personis murdered
, many
s
thing aredonebeforethemurder
takes.place Firstofall comes
the ideain the mind of the murdererto murder a person
. Then
h ha
e s toplanastohowthemurder
istobecommitted
. Thepistol
s tobebrough
ha t orsomeho
w .
securedThesame
isthecase
with
.
cartridges Thentheoccasion
hasto be foundfor shooting
the
.
n
perso Theperso
n mustbeshotattheplace
where
theshotis
,
likelytobefatal
. Therearesome
writers
whotakeinto account
yonl th
e immediat
e ces
consequen oftheactandnottheincidenta
.
ones g
Accordin
to Austin
: "The bodilymovements which
y
immediatel
followourdesireofthemare the onlyactsstrictly
]
XVII LIABILITY 427

andproperlyso
-called
." ,
However sucha viewis notacceptedas
beingillogical
. An act must include not only the physicalmove
-
ments but also the circumstances and results of the act
. According
toHolland
, theessentia
l elements
ofanactareanexertion
of the
,
will an accompanyingstateof consciousness
andmanifestationof
the will
.

Juristicacts
: Accordingto Holland
, a juristic act is "a
manifestation of the will of private individual directed to the
,
origin terminationor alterationof rights
". Accordingto another
,
definition
a juristicact is "an act theintentionof whichis
d
directe to theproductionof alegalresult
"
Wrongful acts
: Wrongful acts are those which are considered
to be mischievous in the eye of law
. Wrongful acts are of two
.
kinds There are wrongful acts which are actionable per se
without proof of actual damage
. There are others where actual
damage has to be proved before the offender can be punished
.
Examplesof such wrongful acts areslander
, negligentdriving
,
.
etc
Damnum sineinjuria
: There can be casesin which damageis
d
cause but no injury is recognizedin the eyeof law
. All wrongs
are inischievous acts but all mischievous acts are not wrongs
. The
immunity from lability is due to the fact that while some harm
is doneto an individual
, a greatergoodis doneto societyat large
.
This is so in the caseof competitionin tradeor business
. It is
e
possiblthata particularbusinessman
maybe completelyruined
on account of competitionbut he cannotgoto courtof law and
demanddamages
. Fair competition doesnot create any liabilty
.
,
Sometimes
the offencecommittedis so trivial
, indefiniteand
difficult to prove
, that it is not considereddesirableto take action
against the offender
. It is difficult for law to measure the
amount of mental pain or anxiety suffered by a particular
.person There isalsonoliability if a person drains the well of
a neighbour by digging another well on his land
. ,
Likewise
if a personstealsa few grains ofwheat
, law doesnot take notice
of it.
Injuria sine damnum
: There are cases which are actionable
even if there is no proof of actual damage
. This happens when
428 JURISPRUDENCEAND LROAL THEORY .[CHAP

a legalright is violated
. It is not considerednecessaryto prove
thatactual damagehasbeensufferedby the plaintiff
. In the case
of Ashbyv. White
, the plaintiff was aqualifiedvoter for a parlia
-
mentaryseat
. Fe wasnot allowedto vote by the returningofficer
.
,Howeverthe personfor whomhe wantedto voie , wasduly eleci
-
edto Parliament
. In spite of that
, the plaintiff fileda suit against
he returning officer
. The suit was decreed in his favour on the
ground that refusal to record the vole of the plaintiff causedan
injury to the plaintiff in the eyeof law
.
Circumstancesof the act
It is necessaryto take into consideration the time and place
of thiecommissionof theact
. It is important to knowasto where
theactwascommence
d andwherethesame
wascompleted
. These
factshelp to determinethe jurisdiction of the court which has to
try the offence
.
Menstea (guilty mind
)
A fundamental principle of criminal law is that a mere act
doesnot constitute a crime
. It requires a guilty mind of mensrea
d
behinit. Thisprincipleisbasedon the maximaclus
nonfacil
,
reumnisimen
s sit rea
, which meansthat an act doesnot make
guilty unlessthere is a guilty mind
. Two conditionsmustbe
satisfebefor
d e a criminalliabilitycanbeimposed
. Thefirst
n
conditioisaphysical
conditionwhichmeans theexistence
of an
unlawful act
. The secondcondition is the mensrea or the guilty
.
mind Unlessanduntil both conditionsare presentat the same
, nocrimin
e
tim al liability.arisesA guiltymindmustconsist
of
reitheintention
ornegligence
. Veryoften
, evenknowledge
oftbe
ces
consequen will beconsidered
asa partof theguiltymind
e
becausthe mental conditionof an individual can be ascertained
onlythroughhis conductandit is ratherdifficulttoascertain
er
wheth it isdoneintentionally
or with the knowledge of the
.consequenTheguiltyminddoes
ces notdependgenerally
onthe
e
naturormotiv
e behind
theact
. Guilthas tobeintheimmediate
t
inten ornegligence
. Mens reamustextend
tothethreepartsof
anact viz
., the physicaldoingornotdoing
, thecircumstances
d th
an e consequen
.
ces If men
s readoes
notextend
toanypartof
e act
th , ther
e should
benoguiltymindbehind
theact
. Theact
]
XVII LIABILITY 429

ofshontin
g involvesall thethreefactors
. Thereis physicaldoing
or omittingto do A personisin therangeof the revolverand
the revolveris alsoloaded As regardsthe consequences
, the
trigger falls
, thebullet is dischargedand it entersthe body of the
.
victim

Wherethe law prohibits anact

, it prohibits it in respectofits
,origin its circumstancesand its consequences
. Out of the
us
numero s
circumstance
andthe endless
chainofconsequences
,
law selectssome as material and the alone constitute the wrongful
, therestbeingirrelevant
act . In thecaseofthe offenceof theft
,
time of the day whenit is committedis irrelevant
, whereasin the
caseof the offenceofhousebreaking
, thehour during which it is
committedbecomesrelevantin assessing
the magnitudeof the
liability of the offender
. Section 456 of the Indian Penal Code
considers housebreaking by night as an aggravated offence ,
whereas mere housebreaking not at night as a lesser offence
.
In Nathulalv. Stateof MadhyaPradesh
, the Supreme Court of
India has observedthat mensrea is an essentialingredient of a
criminal offence
. Doubtless astatute may exclude the element of
ns rea
me , but it is asoundrule of construction
adoptedin England
and also accepted in India to construe a statutory provision
g
creatinanoffenc
e in conformity
with thecommonlaw rather
than againstit unlessthe statuteexpresslyor by necessary
-implica
tion excluded mensrea
. The mere fact that the object of the
statute is to promote welfare activities or to eradicate a grave
social evil is by itself not decisive of the question whether the
elementof guilty mind is excluded from theingredientsofan
.
offence Mensrea by necessaryimplication may be excluded from
astatute only where it is absolutely clear that the implementation
of the object of the statute would otherwise be defcated
. The
nature of the mensreathat would be implied in a statute creating
an offence depends on the object of the Act and the provisions
.
thereof An offence under Section 7 of the Essential Commodities
,
Act 1955for breach of Section 3 of the Madhya Pradesh Food
-
grainsDealersLicensingOrder
, 1958necessarilyinvolvesa guilty
mind as an ingredient of the offence
. Considering the scope of
theAct
, it wouldbelegitimale
to holdthatanoffence
under
n
Sectio7 oftheActiscommitted
by a person
if he intentionally
430 JURISPRUDENCEAND LEGAL THEORY .[CHAP

s
contraveneanyordermadeunder Section3 of the Act
. The
objectof the Act will be bestservedandinnocentpersonswill also
beprotectedfrom harassment
if Section7 is so construed
. (AIR
1966 SC 43
).

In SrinivasMall Bairoliyav. Emperor

, the PrivyCouncilheld
that it is of the utmost importance for the protection of the liberty
of the subject that the court should always bear in mind that
s
unles
thestatute
, eitherclearlyorbynecessary
,
implicationrules
outmen
s reaasa'constituentpart of the crime
, an accusedshould
not befound guilty of an offenceagainstthe criminal law unless
he has got a guilty mind
. Offencesunder Rule 81)
(2 of the
Defenceof India Rules
, 1939dealingwith the vicarious liability
of master for servant's crime are not within the limited and excep
-
tional class of offences which can be held to be committed without
a guilty mind
. Offences which are within that class are usually
of a comparatively minor character and a person who was morally
t
innocenof the blamecannotbe held vicariouslyliable for a
servant's crime involving contravention of Rule 81
)
(2 and so
punishable with imprisonment for a term which may extendto
thiee years
. (AIR 1947 PC 135
).

The view of Sir J

. Stephens is that the doctrine of mensrea
is misleading
. It originated when criminal law practically dealt
with offenceswhich werenot defined
. This law gavethem certain
namessuchasmurder
, ,
burglary rapeandleft anypersonwhowas
interested in the matter to find out what those terms meant
. Such
a person found that the crime consisted not merely in doing a
ar
particul actsuchaskillingamanortakingawaythepurseof
anotherpersonbut doingit with a particular knowledgeor pur
-
.
pose This principle of mental condition is generalised
by the
termmen
s rea. ,
Howeverwehavetodaycomea longwayfrom
thatstag
e andeachcrimehasaprecisedefinition
. ,
Hence at a
e of criminal
stag lawwhere
every
offence
hasbeen
well,defined
the general doctrine of mensreais misleadingand unnecessary
.
The doctrine of mensrea doesnot find any placein Indian
Penal.Code To quoteJ.D
. ,
Mayne the authorof Criminal
Lawin India
: "Every offenceis defined and the definitionstates
t onlywhattheaccused
no musthavedone
, butthestate
ofhis
]
XVII LIABILITY 431

mind with regard to the act when he was doing it." For
,
example theft must be committed dishonestly
. Cheatingmust
be committed fraudulently
. Murder must be committed either
intentionally or knowingly
. There is no room for the general
doctrine of mensrea in the Indian Penal Code
. Each definition
of the offence is .self
-sufficient All that the prosecution has to do
in India is to prove that a particular act committed by the accused
answersthe various ingredients of the offencein the particular
section of the Indian Penal Code
.

Personswhoare permanently or temporarily incapableof a

guilty mind are not considered liable for their acts In the case
of drunkennessand insanity
, the ofiender is consideredto be
incapableof forming the necessaryintention whichconstitutesa
.
crime ,
Likewise nothing is an offence which is done by achild
under 7 years of age under the Indian Penal Code
. In the case
of a child between7 and12
, heis consideredliable onlyif he has
attained a sufficient maturity of understanding and can judge the
nature and consequences of his actions
.

,
However in certain circumstances
, law doesnot takeinto
consideration mens rea at all
. An offender is held liable
independently of any wrongful intention or culpable negligence
.
Such wrongs are called the wrongsof absolute liability or strict
liability and they are exceptions to the doctrine of menstea
. The
number of wrongs of absolute liability is increasing every day
.
The tendency is to impose responsibility for loss or damage
whether the wrongdoer has a guilty mind or .not The rule of
absoluteliability is of verywide application
.
Mensreawhennot essential
. - There are many exceptional cases
where mensreais not required in criminal law
.

)
(1 Wherea statuteimposesliability
, the presenceor absence
of a guilty mind is irrelevant
. Many laws passed in the interest
of public safety and social welfare impose absolute liability
. This
is soin mattersconcerningpublic health
, ,
food drugsetc
. There
isabsoluteliability in the licensingof shops
, ,
hotels restaurants
and chemists
' .
establishments The same is true of casesunder the
Motor Vehicles Act and the Arms Act
. Although strict liability
432 ,
JURISPRUDENCE
AND LEGALTHEORY .[CHAP

isimposedin thesecases
, courts areexpectedto protect
, as far as
,
possibie the liberty of the subjectsandto satisfythemselvesthat
a particular statuteclearlyimposesabsoluteliability
.

)
(2 Another exception is where it is difficult to prove mensrea
andpenaltiesare petly fines
. A statute may du away with the
y
necessitof mens
ren on thebasisof expediency
. In suchpetty
s,
casespeedydisposilof cases
is necessary
andthe provingóf
s teais not easy An accusedmay be finedevenwithoutany
men
proof of mensren
.

) Anotherexception
(3 tothedoctrineofmens
reaisin cases
of
public nuisance
. In the interestof public safety
, strictliability
must be imposed Whether a person causes public nuisance with
aguiltymindorwithoutaguiltymind
, hemustbe punishable
) Another exception to the doctrine of mensreais to be
(4
found in those cases which are criminal in form but are in fact
onlyasummary mode of enforcing a civil right
. Accordingto
Lord Watson
: "The law of England doesnot takeinto account
motiveconstitutingan elementof civil wrong
. Any invasionof
thecivil rights of another personis itself a legal wrong
, carrying
withit liabilitytorepairits necessary
or naturalconsequences
, in
sofar as theseare injuries to thepersonwhoseright is infringed
whetherthe motivewhich promptedit begood , bad orindifie
-
t " LordMacnaughte
ren n :
writes"It istheact
, notthemotive
for theact
, that mustbe regarded
. Much moreharm than good
wouldbedoneby encouraging orpermittinginquiriesintomotives
whentheimmediateactallegedto have causedthelossfor which
redressis sought is in itself innocent or neutral in character and
onewhichanybody may door leaveundone withoutfear of legal
consequencesSuch an inquisition would
, I think
, be intoler
-
."
able Lord Herschellobserves
: "It is certainlya generalruleof
our lawthat an act primafacielawful isnot unlawful and actiona
-
ble on account of the motives which dictated it" In the caseof
d
Bradforv. Pickles
, it was held that "no useof propertywhich
wouldbe legalif dueto a propermotivecan become
illegal
e
becaus it is promptedby a motive which is imploper or
."
malicious
]
XVII LIABILITY 433

.
Exceptions
There are certain exceptions
to the generalrulethat
wrongful motive is immaterial in a civil wrong and those are
maliciousprosecution
, injuriousfalsehood
, defamationon a
d
privilege occasion
andconspiracy
. The termmaliciousordinarily
meansillwill or spite
, but in the eyeof law it implies a wrongful
intention and wrongful .
motive A malicious wrong is either
intentional or wrong done with a wrongful motive
. Malicious
prosecutionmeansa prosecution based on a wrongful motive
.
If a personis to be held guilty of maliciousprosecution
, it must
be provedthat he had ulterior intent of a wrongfulnature
.
Motive is also relevant in certain casesof defamation
. If the
t
defendantakesup the pleaof privilegein adefamationcase
, he
can succced only if he proves that he had no bad motive
.

In certain offences
, a particular motive is prescribedasan
ingredient of the offence In those cases
, motive also becomes
,
relevant for example
, a personenters the property of another
n
perso withthemotiveof annoyingor intimidatinganyoccupant
ofthat properly
, it amountsto criminal trespass
. ,
However if he
enters the property without any such motive
, there is no criminal
trespass but only a civil trespass for which remedy is only
.
damages
While deciding the sentence to be imposed upon an accused
,
personthecourttakesinto consideration
the motivewith which
the offence was committed If a father steals a loaf of bread to
fee his child
d , heis shownleniencyat the time of punishment
.
,
However if he removesthe ornamentsof a child
, he is punished
.severely It is obvious that the motive with which the offence is
committed is relevant in certain cases
.

Another exception to the doctrine of menstea is relared to the

maxim"ignorance of thelaw isnoexcuse
". If a personviolates
a law without the knowledge of the law
, it cannot be said that he
has intentionally violatedthe las
, though hehas committed an
actwhichis prohibitedby law In suchcases
, thefact thathe
was not aware of the rule of law and hence did not intend to
violate it, is no defence and he would be liable asif he was aware
of thelaw
. Blackstonewrites
: "A mistakein point of law which
every person of discretionnot only may
, but is bound and
434 JURISPRUDENCE AND LEGAL THEORY .[Снар

presumedto know is
, in criminal cases
, no sort of defence
."
The reason is that a man could have known the law if he had
takencare to do so
. ,
Moreoverlaw is mainly basedon logic
,
principles of natural justice and conscience
. Even where law is
,
complicatedlegal advicecanbe takenfrom thosewhoare compe
-
tent to give
.
red
Transfer
.
e
malic- There
isa principle
of criminallawthat
no act is intended unlessall the three aspectsof the act are inten
-
.
ded An exception to this principle is the doctrine of transferred
maliceof transmigration of malice If a person intends to cause
the death of R
, and in his attempt to causethedeath of R
, he
kills S
, hewould he guilty of having committedthe murder of S
though he did not intend to kill him. The general intention to
kill is transferred or is transmigrated to the intention of killing
this particular .
person Section 301 of the Indian Penal Code
provides that if a personby doing anything which he intendsor
knows to be likely to cause death commits culpable homicide by
causing death of any person whose death he neither intends noi
knowshimselflikely to causethe death causedby him
, he shall
make him liable asif he had causedthe death of the personwhose
h heintende
neat d orknew
himself
likely
tocause
.
Presumption
of Innocence
. -What this rule meansis that every
-
one is presumed to be innocent till he is prover to be guilty
. A
person who is accused of a crime is not bound to make any state
-
nt orofferanyexplanatio
me n of thecircumstanc
es which
throw
suspicioon him
n . He standsbeforethe court asaninnocent
n
persotill heis provedto beguilty
. It isthedutyoftheprosecu
-
n to provethathe is guilty
tio . Heneednotdoanything
but
standby andseewhatcasehasbeenmadeoutagainsthim
. It is
e dutyoftheprosecutio
th n to prove
theguiltbeyond
reasonable
doubt without any help from the accused
,
er
Howev
if thedefenc
e oftheaccuse
d isthathefalls
within
oneormoreof theGeneralExceptions
oftheIndianPenal,Code
theburdenofproofisonhimtoprovethathiscaseis coveredby
h exceptio
suc n or exceptions
. Aftertheprosecution proves
that
e deat
th h ofAwasd causebya bulletfroma gunin thehandof
, it isopentoB to provethat hewasactingin .self
B -defence
]
XVII LIABILITY 435

It is the duty of the defence counsel to show that when the bullet
went off
, B wasmerelyactingin .self
-defence
The doctrine of presumption of innocencehas undergone
considerable .
modification There are various statutes which
negativethe presunption of innocence
. The ProhibitionActs
,
the Weights and Measures Act , the Prevention of Adulteration
of Food Act etc restrict the application of the doctrine of presump
-
tion of innocenceto a considerabledegree
. Under thoseActs
, it
is not necessaryfor the prosecution to provethat the accusedis
guilty beyondreasonable.doubt Oncethe prosecutionmakesout
a primafaciecase
, theburden is onthe accusedto provethat heis
.
innocent
Under the Indian Penal Code , there are certamnoffences
relating to trade mark
, property mark and currencynoteswhere
the burden of proof or innocenceis shifted on the accused
, in
,
particular in the following cases:
)
(1 Section 486 provides that any person selling goods
marked with counterfeit trade mark or property mark
shall be punishedunless he provesthat he acted inno
-
cently and had also taken all reasonable precautions
.
)
(2 Section 487 lays down that any person making a false
mark upon any receptacle containing goods shall be
punishedunlesshe provesthat he acted without intent
to defraud
.

) Section488providesanypersonusingsuchfalsemark
(3
shall be punished unless he proves that he acled with
-
out the intent to defraud

)
(4 Section 489
-E lays down that any person making or
using documents resembling currency notes or bank
notes shall be punished and if his name appears on
such documents
, it shall be presumed that he made
the document until the contrary is proved
.
s
Stagein theCommissio
n of a Crime
The commission of every offencehasfour stagesviz
., -
inten
con to commit it, preparation for its commission
, attempt to
commit it and its commission
.
 436 JURISPRUDENCEAND LEGAL THEORY .[СнАР

As
.-
Intention regards the intention . commit
to , it docs not
constitute an offenceif it is not followedby an act
. The will is
not to be taken for the deed unless there is some external act
whichshowsthat progresshas been madein that direction or
towardsmaturing and effectingit. For example
, R comesto
know that S intends to shoot I the next day in & Square at
8 p.m
. R informs the police about it. The following day Sis
d
arreste in & Squarea fewminutesbefore8 p.m On hissearch
,
he is found in possessionof a fully loaded revolver
. In this case
,
Shad not committed any offence assuming that he had a valid
licence 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
doesnot punishactsdonein themerestageof preparation
. Mere
preparation is punishable only when the preparation is to wage
war against the State (Section 152
) or to commit dacoity -(Sec
tion 399
). Beforea personpassesbeyondthestageof preparation
andreachesa point wherehe commits an offence
, hèmay give
up the idea of committing the crime
. In that case
, heis not
punishableunder the Indian Penal Code
. Law allows a locus
spenitentiaandwill not hold that a personhasattemptedto commit
acrimeuntil he has passedthestageof preparation
. A person
whocontemplates murder buysapistol and takesa railway ticket
to the place where he expects to find his victim As he hasnot
e beyondthe stageof preparation
gon , heisnot guiltyof any
.
ofience

Allempl Asregardsattempt
.- , it is the direct movement
s
toward the commission
after preparationsaremade
. Forthe
offenc of attempt
e , there mustbean act donewith theintention
of committingan offence
. An attempt canonly be manifested
by acts which would end in the consummation of the offence but
for theinterventionof circumstancesindependentof thewill of
theparty
. An attemptis possibleevenwhenthe offenceattemp
-
tedcannotbe committed
. For example
, a personintendingto
pickthe pocketof another thrustshis hand into the pocket
, but
findsit empty
.
 ]
XVIl LIABILITY 437

If the attempt to commit a crime is successful

, the crime
itself is committed
. Where attempt is not followed by the inten
-
dedconsequences
, Section511of theIndian PenalCodeapplies
.
A person intends to set a rick of corn on fire
. He takes out a
,
cigarette lights it and blowsout 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 com

-
mit an offence and attempt to commit an offence
. Preparation
consistsin devising or arranging the means or measuresnecessary
for the commission of an offence
. Attempt is the direct move
-
ment towards the commission after the preparations are made.
R may purchase and load a gun with the declared intention to
shoothis neighbour
. ,
However until somemovementis madeto
e the weaponuponthe personof his intendedvictim
us , thereis
only preparation and not an attempt
.

An attempt is made punishable because every attempt

,
er
wheth it failsor succeeds
, mustcreatealarmwhichitselfisan
.
injury The moral guilt of the offender is the sameasif it had
.
succeeded Moral guilt must be united to injury in order to
justify punishment
.

Commissionof crime
. -The last stage in the commission of a
crimeis that it issuccessfullycommitted and the consequences
of
• the crime materialise
.

Jus Necessitalis
Necessitatisnon habetlegemmeans that necessity knows no law
.
The meaning of this maxim is that if an act is done under dire
necessity in circumstances where no fear of punishment would
deter the person from so acting
, he would not be punished
.
severely Wherecircumstancesso warrant
, he ought not to be
punished at all
. In such cases
, law should take into consideration
not the immediate intent but the ulterior intent which means the
motive with which the act was done
. Punishment has a deterrent
effectwhen the wrongdoer has a choice
, but if he is underthe
compellinginfluenceofa motive which is of such strength that
438 JURISPRUDENCEAND LEGAL THEORY .[CHAP

it overcome
s any fear that can be inspired by deterrentpunish
-
,
ment then punishment
becomes
.
futle Wherethreatsare
y
necessaril
,
ineffective theyshouldnot be made
. If suchthreats
aregiveneffectto
, it would be infliction of fruitlessanduncom
-
d
pensate.
evil Hobbeswrites
: "If a man bythe terror of present
deathbe compelledto doa fact against the law
, he is totally
excusedbecauseno law can oblige a man to abandon hisown
."
n
preservatio
The common illustration of the right uf necessity is the case
of two shipwrecked drowning men clinging to a plank that willl
notsupportmorethan oneof them
. If one of thempushesthe
other off theplank to savehimself frow drowning
, the question
would be whether the person who pushed the other would be
justified in doing so
? Though he intentionally pushedthe
r
othenanaway
, will thenotiveof sell
-preservationabsolve
him from penal lability
? According to the docuine of jus neces
-
silalas the person would not be hable
.

Another familar case of necessity is that in which ship

-
wrecked sailors are driven to choose between death by star
-
vation on the one side and nurder and cannibalism on the other
.
A third caseis that of a crime committed under the pressure of
illegal threatsof deathor grievousbodily harm
. In suchcases
,
norality demandsthat nopunishinentbe administered
. It seems
morallyunjust to punisha man for doing somethingwhichhe or
anyordinarymancouldnot morally resist doing
, evengiventhe
ng
countervalli
motiveofthemaximunpunishment
reasonable
for
the offence
.

Wherenecessity
involvesa choice of somevaluehigherthan
thevalueofobedienc
e totheletterofthe law
, it isalways
a legal
.
delence ,
However wherethe issueis merelyone of futility
of punishment
, evidentialdillicultiespreventany but the most
lunitedscopebeingperinittedto thejus necessitatis
. Whilein few
es necessi
cas ty isadmitted
asa groundof excuse
, asforexample
in treason
, it is in mostcasesregarded asrelevantto themeasure
rrathethanto theexistenc
e ofliability
. It isacknowledgedas
on forthereduction
reas of penalty
, eventoanominal ,
amount
t notfor its totalremission
bu . Homicide in theblindfuryof
]
XVII LIABILITY 439

irresistiblepassionis not innocent

, but neitheris it murder
. It is
reduced to the lower level of manslaughter
. Shipwrecked sailors
who kill and cat their comrades to save their own lives are in
law guilty of nurder itself
, but the clemency of the Crown will
commutethesentenceto a short term of imprisonment
.
The leauing caseon the subject is that of R
. v
. Dudley
, )(1884
11 QBD 273 It was held in that case that a man who in order
tosav
e hislife froin starvation
, kills anotherfor the purposeof
feedingon his fleshis guilty of murder
, although at thetime of
the act he is in such circumstances that there is no other chance
of preservinghis life Thiee shipwrecked sailors in a boat were
without food for seven days and two of them killed the third
, a
,
boy and led on his llesh undersuch circumstancesthat there
appeared to the accused every probability that unless they fed
upon the boy or one of them
, they would die of starvation
.
In the circumstances
, the court held that they were guilty of
.
murder Though the court convicted the accused of murder
and sentencedhim tu death
, pardon was recommendedand
.
granted In Englishcruminal,jurisprudence jusnecessilats
maybe
relevant for assessingthe measure of liabilty but it is not a ground
for releasing a person from all penal ability
. Both English
criminal law and the Indian Penal Code do not accept the doctrine
of jusnecessitalsasweli asthe doctrine of .self
-preservation

Intention

Themensreawhich is essential to constitute a lability lakes

two distinct forns uiz
., wrongful intention and culpable negli
-
.
gence According to Salmond
, intention is "the purpose or
design with which an act is done
. It is the fore
-knowledge of
the act
, coupled with the desireof it, suchfore
-knoweldge and
desirebeingthe causeof theact
. Accordingto Paton
, awrong
sintentional only where the particular consequenceswhich result
from the act are foreseen and desired Knowledge and desire are
the necessary consutuents of intention
. According to Justice
:
Holmes "Intent will be found to resolve itself into two things
;
foresightthatcertain consequences
will follow from anact and
the wish for those consequencesworking as a motive which induces
the act
."
440 JURISPRUDENCEAND LEGAL THEORY .[CHAP

Intention does not necessarily involve .expectation The

consequencesdesired may not be expected
. I may intend certain
s
consequencewhich are absolutely improbable
. ,
Likewise -
ex
pectationdoesnot amount to intention
. A surgconmayknow
that his patientwaslikely to die in the courseof operationbut he
intends the recovery of his pauent and not his death
. Intention
implies full advertencein the mind ofthe person to his conduct
.
An intention can only be inferred from the conduct of the doer
.
Thereisno otherbetter method to do so
. According to Brain
,
. J.:
C "It is common knowledge that the thought of man shall not
betried
, for theDevil himselfknowethnot the thought of man
."
Accordi toBowen
ng , .:
L.J "The stateofman's
mindisasmuch
afactasthestateofhisdigestion
."
The doer of an act is imputed the desire as to its inevitable
es
consequencalthoughthosemaynot bepresentin his mind
. A
person causes grievous hurt to another with no intent to kill .
him
,However if the person dies
, the offender is guilty of murder
.
Intentionexcludesnegligenceas negligencerefers to unintended
consequencofaction
es . ,
Geneally intentionand knowledgego
.
together If a personintendsa result
, heknowsthattheresult
will follow the act
. When he knows that a particular result will
,
follow he intends that result
. ,
However this is not alwaysthe
.
case A Generalmay order histroopsto run in front of a firing
-gun
machine and capture the same
, but lie doesnot desireor
intendtheir death
. X shootsat li who is actually out of the
range of his gun
. The intention to kill is there but there is the
knowledgethat I will not bekilled asheis out of the range of
the gun
.

An intentiondiffersfrommotzue An act may be donewith one

immediate intent and another ulterior intent
. The ullerior intent
iscalle
d motive
. A killsB torobhimof Insluggage
. Theimme
-
diate intent is to kill B and the motive is to rob him
. Sometimes
theimmediat
e intentmaybebadbuttheulteriorintent may be
good In spiteofthat
, theactwill bea wrongful
.
one Likewise
motivemaybebadbuttheactmaynot be wrongful
. Thisis so
if a personopensa shopin competition
againstanotherandis
ed
prepar tosellhisgoods
atacheaper
ralewitha viewto ruin
]
XVII LIABILITY 441

the other
. Wherea personsavesa drowningman, the intention
of thepersonis to savehim
, but his motive may be to have him
arrestedunder a warrant
. Motive is said to be the ulterior
.
intent

:
Malice Malice implies wrongful intention
. An act is done
maliciouslyif it is donewith à badintentionor abadmotive
.
Malice includes immediate and ulterior .
intention Malicious
n
prosecutio
impliesa prosecution
whichisinspiredbymotivenot
approvedof by law
. It is onlyin exceptionalcasesthat malice
is considered to be relevant in determining the question of legal
.
liability

:
Negligence
Accordingto Salmond
, negligenceis "the stateof
mind of undue indifference towards onc's conduct and its conse
-
".
quences Accordingto Willes
, neglienceis "the absenceof
suchcareasit wasthe duty of thedefendantto use
". According
to Austin
, negligenceis the breachby omissionof a positive duty
.
In his definition of negligence
, Holland includes all those shades
ofinadvertencewhich resultin injury to othersbut thereis a total
e
absenc of responsibleconsciousness on the part of the doer
.
Negligence can consist either in faciendoor in non faciendo
; being
either non
-performance or inadequate performance of a legal
.
duty According to Clark
: "Negligence is the omission to take
such care under the circumstances it is the legal duty of a person
to take
. It is in no sense a positive idea and has nothing to do
with astateof mind
." Accordingto anotherwriter
, "negligence
is the absenceof careaccordingto circumstances
". It has been
heldin a casethat "negligence is the omitting to do something
that a reasonable man would do or the doing of something which
a rcasonablemanwould not do
". Neglienceis the breach of a
legal duty to take care
. It is carelessnessin a matter in which
carefulness is made obligatory by law
. Negligence essentially
s
consist
in thementalattitudeof undueindifferencewith respect
to one's conduct and its consequences
. Negligence is nothing short
of extreme carelessness
. Carelessnessexcludes wrongful intention
.
A thing which is intended cannot be attributed to carelessness
.
s
Carelessnes
ornegligencedoesnotnecessarilyconsistin thought
-
lessnessor inadvertence
. It is true that it is the commonest form
of negligence but it is not the only form
. There can be a form of
442 JURISPRUDENCEAND LEGAL THEORY .[CHAP

negligencein which there is no thoughtlessnessor inadvertence

.
The essential of negligence is not inadvertence but indifference
. A
carelessperson is a personwho does not care
. To quote Salmond
:
"This term hastwouses
; , it signifiessometimesa particular
for
state of mind and at other times conduct resulting therefrom
. The
former is the subjective and the latter objective sense
. In the
former sense
, negligence is opposed to wrongful intention
; in the
,
latter it is opposednot to wrongful intention but to intentional
."
wrongdoing
Salmonduses the term negligenceonly in the subjective
sense Accordingto him
, negligenceis essentiallya state of mind
.
Negligencehas a wider significance than inadvertence and
.
thoughtlessness

e
Negligenc
isoftwokinds
, according
asit is accompanied
by
inadvertenceor not
. Advertentnegligence
is commonly called
wilful negligence or recklessness
. Inadvertentnegligence
can be
called simple negligence
. In the caseof advertent negligence
,
the harm done is foreseenas probable but it is not willed
.
In the case of inadvertent negligence
, the harm done is
neither foresen nor willed
. In either case
, carelessness01
indifierencasto the consequence
e s is present
. In the caseof
t
adverten ,
negligence theindifferencedoesnot preventthe
ences frombeing
consequ n
foresee
butinthecase
ofinadverten
e
negligenctheindifference
doespreventtheconsequences
from
being foreseen
.

Accordingtosomecritics
, negligenceis not carelessness
or
indifferenin all cases
ce . ,
Howeverthereplyisthatthisviewis
t sound
no . In allcase
s which apparently
showthatthereexists
ce
negligen without,
indifference
acarefulexamination
discloses
the
e
presencof indifference
. A drunkardis walkingalong the road
andhebreak
s ashopwindow
asheknocks
against
thesame
. The
d
drunkar
hasto paydamages
onaccount
ofnegligence
. It is
tru thatthedrunkard
e wastakingall precautionsto avoidany
,
mishap buthewasliableforthelossashe wasindifferentwhen
e gotlfhimsedrunkandstarted
h walking
inthestreet
inastate
of
s.
drunkennes He oughttohaveremained .
sober X wasan in-
tefficienphysician
. In spiteofall hisdevotionandcare
, he could
]
XVII LIABILITY 443

not save the life of the patient on account of his inefficiency

. He
was held liable for damagesfor negligence
. It is true that he was
verycareful in his work but he oughtnot to have undertakenthe
same as he was unfit to do so
.

e
NegligencandInadverlence
: A distinction is also made between
s
gros negligenceandslight negligence
. Gross negligenceimplies
a higher degreeof negligencethan that of the latter
. There is no
such distinction in English law
. Negligence is called wilful if it
is advertent
. It is alsocalledrecklessness
. In this kind of negli
-
,gencetheharm doneisforeseenaspossibleor probablebut it is
notwilled
. In the caseof an inadvertent,negligencetheharm is
neither foreseen nor willed
.

Accordingto somejurists
, all negligenceconsistsin inadver
-
.
tence An act is done negligently when the doer did not know that
the act was wrong but could have found out if he had tried to do
. Two objections are raised by Salmond against this view
so . -
Accor
ding to him
, all negligenceis not inadvertent
. Even if a thing Is
known to be wrong
, I may do the same with the hope that it will
not result in wrong
. I may have no intention that it should result
in wrong
. I may drive fast through a crowdedstreethopingthat
it willnotresult
in anyaccident
. Likewise
allinadvertence
isnot
.
negliegnce I may not appreciate the consequences of my actions
and that way I may not be negligent
. I become neglgent only
if I become indifferent to results
. I am not negligent if I take
full care which can reasonably be expected under the circum
-
.
es
stanc A ma
n drivin
g acarisnegligent
ashedoes
nottake
care to remain sober
.

e
Negligenc
andIntention
: Accordingto Salmond
, bothintention
and negligence are subjective
. Both of them arise out of a state
of mind
. Intention is a mental element and the same is the case
with negligence
.
,
Howeverin thecaseof intention
, the consequences
of the
act are both known and desired by the doer . In the caseof
,negligence the consequencesof a negligent act are neither desired
nor willed whether they are known or not
. In the case of inten
-
,
tion it is presumedby law that the doerintendsthenatural
consequencesof his act
. Intentional wrong is punished as the
477 JURISPRUDENCEAND LEGAL THEORY .[CHAP

injury is willed or desired

. A negligent wrong is punished as the
prevention of the injury is not suficiently desired
. The wrong
-
doer is liable because he is careless or indifferent
. X fires at I
and kills him
. The wrong is intentional as the death was desired
.
X fires in the direction of a crowd believing that the shot will
not goasfar asY
. Anyhow
, X is killed by his shot
. X is guilty of
.
negligence
CulpableNegligence
: Carelessnessbecomesculpable when law
imposesa duty of being careful
. Criminal liability for negli
-
genceexistsonly in very exceptional.cases However
, civil
liability for negligence exists in most cases
. There are certain
s
exceptionto the aboverules
. A falsestatement
isnota civil
wrong if the personwho made the statement honestly believed
the same to be true
. It is immaterial that he was careless in
seekingthe truth An animal or a thing is borrowed gratuitously
andif any damageis done to the borrower on account of dange
-
rousdefectin the animal
, theborroweris entitled to recover the
damages if he is not duly informed of the defects
. While measur
-
ing the degree of carelessness
, two things are taken into consi
-
deration and those are the degree of the seriousnessof the
consequences possible and the extent to which those consequences
were probable
.
Duty of care
: A reference can be made to some casesto have a
clearideaofthedutyofcareinvolvedin thetermnegligence
. In
th cas
e e of Donogh
ue . Stevenso
v ,
n a manufacturerofgingerbeersold
toaretailergingerbeerin anopaque
.bottle Thebottlecontained
thedecomposed
remainsof a deadsnail
. ,
However that fact was
not knownto themanufacturer
. The gingerbeerwasboughtby
a custom
er fromtheretailerandhe poured
some
ofit intoa
rtumbleforaladyfriendwhodrankit andbecameveryill
. It
s heldthatthemanufactur
wa er oweda dutytotakecarethatthe
bottledidnotcontainanynoxiousmatterandhe wasliableif the
y wa
dut s broken
. In another
, thedefendants
case manufactured
s whic
panth containe
d some
chemical
thatgave
theplaintiffaskin
diseasewhen he wore them
. It was held that the defendants were
liable to the ultimate purchaser
.
d
Standarof care
According
.- to Salmond
, Englishlaw recog
-
]
XVII LIABILITY 445

s only onestandardof careandonlyonedegreeof negligence

nise .
r
Wheneve
apersonis undera dutyto takeany careat all
, heis
bound to take that amount of it whichis consideredreasonable
under the circumstancesand the absenceof which is culpable
.
e
negligenc Manyattemptshavebeenmadeto establish
twoor
even three standards of care and degrees of negligence
. Some
writersdistinguish
between
grossnegligence
andslightnegligence
.
Thereare otherswho distinguishbetweengross
, ordinary or slight
.
negligenceThesedistinctionsare basedpartly onRomanlaw
and partly on a misunderstandingof Roman law
. The distinc
-
tion arehopelessly
s indeterminate
and impracticable
. Salmond
s notapproveof thosedistinctionsand contendsthat thereis
doe
no reason or justice or expediency for doing so
. To quote him
:
"The single standard of English law is sufficient for all cases
.
Why should any man be required to show more carethan is
reasonable under the circumstances or excused if he shows less
?"

It ispossibl
e toadopteitherofthetwostandards
ofcarewant
of which amountsto negligence
. Thosetwo standards
are the
highestdegreeof careof which human natureis capableand the amount
of care which would be reasonablein the circumstancesof theparkcular
case The first standard is rejected and the second standard is
accepted in actual practice
. Law requires not what is possiblebut
what is reasonable under the circumstances
. Law does not require
the greatestpossiblecare in every caseas all personsdonot possess
thehighestdegreeof intelligence
. ,
Likewise the standard ofcare
required is not the care that can be exercisedby the ordinary man
or the averageman
. In somecasesthe standardadoptedhas
beenlower than the amountof carewhicha man of average
prudence exercises
. The standard of care is not the amount of
e whic
car h theindividual
concerned
would
becapable
of exercis
-
ing in the circumstances or the amount of care which at the
utmostit ispossiblefor himto exercise
.
,
Theoretically
negligence
is the omittingof thatwhicha
reasonabmanwoulddoor thedoingofthat whicha reasonable
le
man would not do
. ,
However in actual practiceit is hard to
e
defin or discover
that reasonable
manor lay downanyrule
definin theamountofcarenecessary
g in anyparticularcase
. In
thecas
e of England
, that amount
of careis reasonable
in the
446 JURISPRUDENCE AND LEGAL THEORY .[CHAP
s
circumstance
of a parucular casewhicha jury of 82 menor the
Judge thinks ought to have bren observed in that case
. The
d
standar
of carecannotbepredetermined
. It isa variable
thingwhich
varles from caseto caseand time lu lume
.

While determining the amount of care necessaryin any parti

-
cular case
, two factors must be taken into consideration
. Those
arethemagnitudeof risk to which othersare exposed
by theact
and the amount of benefit to be derived from the act If the
driver of a car drives it at the speed of 40 miles an hour in the
,
city he is consideredto be guilty of negligence
. The dangerof
arcirents arising out of high speedin the city is much greaterthan
the benefitderived by the .car
-owner ,
However if a train isrun
at the sperd of 50 miles an hour and accidents take place from
time to time
, it is not considered to be negligence asthe benefits
enjoyed by the public on account of high speedare much greater
than the risk of accidents In the caseof anarchitect
, a physician
or a surgeon
, he isnot required to exercise
the skill of an ordinary
n oranaverage
ma .
man Hemustpossess
specialskillbeforehe
takes up work
. If he starts his work without acquiring the neces
-
y skill requiredby law
sar , he is liableto beheldguilty for
.
negligence

s
Theurleof Neglgence
-There are manytheoriesof negligence
espoundedby various jurists
.
) Accordin
(1 g to Austin
, negligence
consists
essentially
in
.
inadvertence It consists in a failure to be alert
, circumspect or
vigilant Anegligewrongdo
nt er isonewhodoes notknow that
s ac
hi t iswron
g butwhowould have known
it if hehad nolbeen
lly
menta .
indolent
g
Accordin
to Salmond
, thistheoryisinade
-
.
quateAllnegligen
ce isnot.inadvertence
There
issuch
athing
s arvertentnegligenc
a e in whichthe wrongdoer
knows
perfectly
ll th
we e truenatur
,
e ces
circumstan
andprobable
es
consequenc
of
hi act
s . Heforese
es those consequenc
es andyetdoes
notintend
them Hismental
attitude
is notoneofintention
butof negli
-
.
e
genc ,
er
Moreovallinadverten
ce isnotnegligence
. Afailure
on the part of a n
perso
toappreciat
e thenature
ofanactand
ee itsconsequenc
fores ,
es is notculpable
in itself
. There
isno
ation fo
justific
r habil
ity unle
ss itisshow
n that
there
was
-
ss
carele
]
XVII LIABILITY 447

ness in the sense of undue indifierence

. He who is ignorant or
forgetfulisnot negligent Thesignalmanwhosleepsat hispostis
negligentnot becausehe falls asleep
, but becausehe is not
sulticiently anxiousto remain awake
. If his sleepis dueto illness
o1excessiv
e ,
labour he isfree from blame
. Theessence
ofnegligence
is nol inaduertencebut carelessnesswhich may or may not result in
.inadvertence The advocates of the theory point out that there are
in reality three forms of mensreaand not two and those are inten
-
,tion recklessness
and negligence
. In the caseof intention
, the
s
consequence areforeseenand intended
. In the caseof reckless
-
s, theconsequen
nes ces areforeseen
butnotintended
. In thecase
of negligence
, theconsequences areneither foreseennor intended
.
,
However law bracketstogetherrecklessnessand negligenceunder
theheadofnegligenc
e asbothofthemaretheoutcome
of careless
-
ness

) According to Holland
(2 , negligenceisof two kinds
, gross
negligenceand simple negligence
. ,
However this viewis an old
one and not recognised by English law
.

)( Sir John Salmondhas propoundedthe subjective

3 theoryof
.
negligenceAccordingto him
, negligenceis purely subjective
. It
is somethin
g whichis purelyinternalto theindividualconcerned
.
It relatesto hisstateof mind
. It isa mental condition
. It isan
attitude of indifference to the consequencesof the act
. Negligence
is culpable carelessness
. Although negligence is not the same
thingas thoughtlessnes
s or inadvertence
, it is nevertheless
-
essen
tially an attitude of indifference
. Negligence consists in the
mental attitude of undue indifference with respect to one's con
-
ductandits consequences
. According to Winfield
: "As a menta
)
elementin tortious liability
, negligenceusually signifiestctal
inadvertence of the defendant to his conduct and for its conse
-
.
quences In exceptional cases
, there may be full advertenceto
both the conduct and its consequences
. But in any event
, there is
no desire for the consequences
, and this is the touchstone for
distinguishing negligence from intention
."
) Accurdingto theobjective
(4 theoryof negligence
, negligence
is
nist a subjective fact
. It is not a particular state of mind but a
particular kind of conduct
. It is a breach of the duty of taking
 -

448 E
JURISPRUDENC
ANDLEGALTHEORY .[CHAP

careagainstthe harmful results of one'sactions

, and to refrain
fromunreasona
bly s
dangerou
kindsof conduct
. To driveat
t
nigh withoutlightsisnegligence
because
all reasonable
andpru
-
dent men carry lights with aview to avoid accidents To take
care is not a mental attitude or a stale of mind
.

Accordingto the objectivetheory

, negligenceis an external
fact and not a state of .mind It is a conduct resulting in he
breach of duty to take care
. According to Clark and Lindsell
:
"Negligenceconsistsin the omission
to takesuchcareasunder
the circumstancesit is the legal duty of a person to take
."
Negligencelies in pursuing a course of conduct different from that
of a reasonable and prudent person
.

According to Pollock
: "Negligence is the contrary of diligence
andno onedescribesdiligenceasa stateof mind
." Negligenceis
the breach of the duty of taking care against the harmful results
ofone'
s s
actionandtorefrainfrom unrcasonable
dangerous
kind
of conduct
.

In thelaw of torts
, negligenceconsistsin the failure totake
suchcareaswouldbe takenby a reasonablyprudent man
. It is
a conduct which falls short of an external standard and is an
objective one
.

Salmondcriticizesthe objectivetheory of negligence

and
pointsout that negligentconductdiffers from negligence
. -
Negli
gent conduct is a course of action which is the result of negligence
.
It is an objective fact which results from a state of mind
. -
More
,
over all negligenc
e is followedby a failuretotakereasonable
.precautions However
, the converseis nottrue
. The failureto
takeprecautions
is not alwaysdueto negligence
. It maybedue
to accidentor intention
. Fromthe purelyobjectivepointof
,
view it is not possible to decide whether an act was intentional
,
nt
neglige
oraccidental
. Wehavetotakeintoconsideration
the
state of mind as well
.

Neitherthe objectivetheory nor the subjectivetheory is

.
correct Negligenceis both subjectiveand objective
. The two
theoriecanbereconciled
s . They emphasize differentaspects
of
.
negligenceAs contrasted
with wrongful,intention negligence
is
]
XVII LIABILITY 449

.subjective As contrastedwith inevitable accident

, negligenceis
.
objective If the intention is not relevant
, the only thing to be
considered is whether the doer took the amount of care required
by law or not
. The answerdependsupon externalfactswhich
are independentof the state of mind
. According to Keeton
:
"The law takesno heedof man'smind
, exceptin sofar asit
s
expresseitself in material acts
, and it is only when negligence
(considered from the subjective standpoint
) has resulted in acts
ng
occasioni,
damage
thatthelawtakesnoticeofit."
Austin makesa distinction between negligence
, heedlessness
and rashness
. Negligence is the state of mind of the person who
inadvertently omits an act and breaks a positive duty
. To quote
:
Austin "The party whois guilty oftemerity or rashness
, like the
party who is guilty of heedlessness
, doesan act and breaks a posi
-
tive duty
. But the party who is guilty of heedlessness
thinks not
of the probable mischief
. The party who is guilty of rashness
thinks of the probable mischief but in consequence of a missuppo
-
sition begotten of insufficient advertence
, he assumes that the
f
mischiewill not ensue
in the giveninstance
." In thecaseof
,
heedlessness
the person concerneddoes not bother about the
possible consequences
. In the case of ,rashness he knows the
consequencesbut foolishly thinks that they will not occur as a
result of his act
. In the caseof recklessness
, he knows the
consequencesbut does not care whether they result from his act
or not
.

Sit John Salmond does not accept the view of Austin

. He
points out that there may be advertent or wilful negligence as
where a person sees the consequencesof his act and in spite of
that recklessly does it without intending those consequences
.
Austin calls it rashnessbut Salmond calls it negligence
. -
Inadver
tenceor wantof foresightmayproceedfrom ignorancein spiteof
a genuine and anxious effort to attain knowledge
.

In Romanlaw
, there were different degreesof negligence
.
Culpa levis in abstracto was failure to show exactdiligentia or the
care which a bonuspater familias would show in that particular
.
transaction This kind of care was required of a person when a
contract was concluded for his benefit or for the mutual benefit
450 JURISPRUDENCE
ANDLEGAL THEORY .[Снар

of both parties or when he voluntarily undertook a trust

. Culpa
levisconcreto
was a failure by a person to take that care which he
wasaccustomed
to showin his own affairs
. Such a personhas
to showordinary diligence
. Persons were liable for this kind of
negligencewhere both parties had a common interest
. Culpalala
or egregious fault was a failure to show any reasonable care at
.
all It amounted almost to wrongful intention
.
The English law does not recognise different degreesof negli
-
.
gence Sofar ascivil law is concerned
, there is only onestan
-
dard of care and that is of a reasonable and prudent man in the
situationactuallyconsidered
. In criminal law
, degreesof negli
-
genceare recognised
. In Andrewsv
. Directorof Public Prosecutions
,
LordAtkinobserved
: "The principleto beobserved
in cases
of
manslaughterin driving motor cars are but instancesof a gene
-
ral rule applicableto all chargesof homicide by negligence
.
Simplelackof care such as will constitutecivil liability isnot
;
enough for purposes of the criminallaw therearedegrees of
;
negligence anda very high degree of negligenceis requiredto
be provedbeforethe felonyis established
. Probablyof all
epithetsthat can be applied '"reckless most nearly coversthe
.
case It is difficult to visualise a case of death caused by reckless
drivingin theconnotationof that termin ordinaryspeech which
would not justify a conviction for manslaughter
." (1937 AC
576HL).
y
Contributor :
Negligence
- Contributorynegligenceis negligence
,
in not avoidingtheconsequences arising from the negligence of
someother person
, when meansand opportunityareafforded
to doso. It is thenon
-exercise by the plaintiff of suchordinary
,
care diligence and skill as would have avoided the consequences
of thenegligence of the defendant The doctrineof contributory
e
negligenc "rests uponthe viewthat though the defendanthasin
factbeennegligent
, yetthe plaintiff has by its owncarelessness
served the casual connection between the defendant's negligence
d theaccide
an nt which
hasoccurred
; andthatthedefendant'
e
negligencaccordinglyis not the true proximatecauseof the
injury Thelawtakesinto consideration
". an act or conductof
thepartyinjuredorwronged
whichmayhaveimmediately
ed
contribut tothat.resultOnewhohasbyhisown
negligenc
]
XVII LIABILITY 451

d
contributeto theinjuryof whichhecomplains
cannotmaintain
n actio
a n st
againr
anothe
in respect
of it. Heisconsidered
tobe
the author of his own wrong in the eye of law
. According to
Lord Halsbury
, thedoctrineof contributory negligence
is merely
a specialapplicationof the maximthat wherebothpartiesare
y
equall toblame
, neithercanholdtheotherhable
.
Measure of Penal Liability
According to Salmond
, three elements should be taken into
considerationin determiningthe measureof criminal liability and
e
thos arethemotiveof the offence
, the magnitudeof the offence
and the characterof the offender
.

) Asregardsmoliveof offence
(1 , other things beingequal
, the
greaterthetemptation to commit the crime
, the greatershould
bethe punishment
. The object of punishmentisto suppressthose
s
motivewhichleadto crimes
. The strongerthesemotivesare
,
the severermust be the punishment in the case
. If the profit to
begainedfrom the act is great
, the punishmentshouldalsobe
severeproportinately
. ,
However there is an exception to the
general rule
. Certain offences may be committed on account of
urgent necessityor other exceptional circumstances Ifa person
isforcedtosteal to feedhis starving children
, the law generally
takes this fact into consideration to lessenthe punishment
.

) Otherthingsbeingequal
(2 , the greaterthemagnitude
ofthe
,
e
offenc thegreatershouldbeits punishment
. Such a consideration
may seem to be irrelevant
. It may be contended that punishment
should be measuredsolely by profit derived by the offender and
not by the evils causedto other persons
. If two crimes are equal
in point ofmotive
, they shouldbe equal in point of punishment
,
Howeves this is not the casein actual practice andthis is dueto
two causes
. The greaterthe mischiefof any offence
, thegreater
is the punishment which it is profitable to inflict with the hope of
preventing it. It is worthwhile to hangany number of murderers
in order to deter one murdererand saveoneinnocent.person
,However it is not worthwhile to hangone personand stop all
petty thefts
. Anotherreasonwhy differentpunishmentsare given
for differentkindsof offences
is thatsucha systeminducespersons
to com
mit theleas
t seriou
s .
offences
If punishment
forburglary
452 JURISPRUDENCEAND LEGAL THEORY .[Снар

wereto be the sameas that for murder

, the burglar wouldnot
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 stop at the attempt but would
like to complete the act as well
.
)
(3 The characterof the offender should also be taken into
consideration while determining the measure of criminal hability
.
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 appro
-
priate 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
inadsquate 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 losesall sense of shame
. The most degraded criminals are
saidto exhibit insensibility even to physicalpain
. Many murderers
of the worst type show indifference to death itself
. In cases
shortof capital offences
, it is desirableto punishmoreseverelythe
more .
corrupt

The Indian Penal Code provides that a previous convict

shouldbe awardedan enhancedperiodofimprisonment
. The
first offendersareusuallylet off or treated very leniently
. -
Some
s theoffender
time s areletoffonprobation
of good
conduct
on
accountof theirage
, ,
characterantecedents
or physicalormental
condition of the accused and the circumstances in which the
offencewascommitted
.
Measureof Civil Liability
In thecaseof a civil wrong
, motiveis irrelevant
. It is only
the magnitude of the offence that determines civil liability
. The
liability of the offender is not measuredby the consequences
h hemeant
whic to ensue
, but bytheevil whichhesucceeded
in
.doing Theliability consists
of thecompulsory
compensationto
begivento theinjured personandthatisto be considered
asa
]
XVII LIABILITY 453

punishment for the offence

. In penal redress
, compensationin
money is given to the injured person and punishment is imposed
upon the offender
. A rational system of law must combine the
advantagesof 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
anda tort A tort today may be a crime tomorrowand viceversa
.
,
However it is desirableto distinguishbetweenthetwo terms
.
Accordingto Blackstone
, torts areprivate wrongsandinvolve
"infringement of the civil rights which belong to individuals
consideredmerelyasindividuals
". On the other hand
, crimesare
c
publi s
wrongandinvolve"a violation
of thedutiesduetothe
whole community
". ,
Thus the distinctionbetweenthe two
les in the natureof offence
. If theoffenceis serious
, it is to be
treatedasa crime
, andif it is not
, it isto betreatedasa tort
.
Austin does not accept the view of Blackstone
. He points out
that some wrongs are both crimes and torts
. For example
, an
assaultor a maliciousprosecutionmaybe a tort aswell asa crime
.
All public wrongsare 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
cannotbe said that the public is affectedthereby
. The view of
Austinisthat thedistinctionbetweena crime anda tort ispurely
.
procedural If thewrongisa crime
, "the sanctionis enforcedat
thediscretio
n of thesovereign
". In the case
of a tort
, "the sanc
-
tionis enforce
d atthediscretion
ofthepartywhose right hasbeen
".
violated In the caseof crime
, the machineryof law is setin
motionby theState
. In the caseof a tort
, the machineryis setin
motionby theindividual concerned
. In the caseof a crime
, the
State launches the prosecution and it can also withdraw the same
.
In the caseof a tort
, a suit for damagesis brought by theparty
.
concerned If he getsa decreein his favour
, the Statecannot
interfere and lessenthe amount
. The Statealsocannotforce a
privateindividualto withdraw the suit filedby him againstthe
.
wrongdoer
454 JURISPRUDENCEAND LEGAL THEORY .[CHAP

The view of Salmond is that the views of both Blackstone and

Austin are not correct
. He points out that criminal proceedings
can be started in many casesevenby aprivate 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 basedon the nature of the reinedy applied
. In thecaseof
acrime
, the objectof thelegalproceedings
is thepunishment
of
theoffender
. ,
However that objectis the paymentof damagesin
the case of tort
. The view of Salmond has been accepted by the
courtsin England
, and a referencemaybe madeto thecaseof
d
Cluffor andO'Sullivan
, )(1921 2 AC 570
. In that case
, Lord Cave
:
observed "To be a criminal matter it must involve the consi
-
derationof somechargeof 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 distinguishingmark of a crime is that it involvesliabi
-
lity to punishment
. ,
However
it is contended
that theviewof
Salmond does not contain the whole truth
. In criminal cases
,
thecourt can and sometimesdoesorderpaymentof compensation
to the injured party
. In the caseof tort
, exemplarydamages
aresometime
s awardedas punishmentto the wrongdoer
. .
Prof
Allen mantains that although punishment is a distinguishing
rk ofcrim
ma ,
e it doe
s notexplain
thenature
ofcrime
.
itselfTo
quoteAllen
: "It is not enoughto knowthat crimeis punishable
,
wrong the problemiswhyit is punishable
." Allen is in favour
of the view of Blackstone
. Crimeis a crimebecause
it is
wrongdoingand in seriousdegreethreatensthe 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 asa breach of pub -
lic duty
, the sanctionof whichis punishmentexigibleorremis
-
sible at the discretion of the sovereign acting according to law
.
A tort is definedasabreach of duty affectingprivateindividuals
tno arisingoutoftrustorcontract
, thesanctionofwhichiscom
-
n
pensatio exigibleor remissible
at the discretion
of the party
whoseright hasbeen infringed
.
]
XVII LIABILITY 455

In Halsbury'sLawsof England
, crime is definedin 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
, whohasa remedyin a civil action
, it
is an act or default contrary to the order
, peaceand well
-being
of societythat a crime ispunishableby theState
."
ns
Exemptio fromCriminalLiability
The general rule is that a person is liable for any crime
committedby him
. ,
However thereare certain exceptionsto this
generalrule
. The general rule doesnot apply in the caseof a
mistake of fact
. Ifa person does something under a mistake
without intending to do which he actually does
, he is not crimi
-
nally liable for his action A police constable goes to arrest A
but actually he arrestsB thinking B to be A In this case
, the
police constable is not guilty of any crime becausethere wasno
guilty mind whenhearrestedB . ,
However it must be notedthat
the mistakemustbe reasonable
, and there should be no liability
for theact actually done under a mistake
. In the caseof Tolson
,
a woman married another person under a bona fide belief that
her husbandhad died in a shipwreck
. Later on
, it was found
that he had actually survived the shipwreck
. The woman was
d
prosecute for bigamy
. ,
However shewasacquitted
.
Anotherexceptionis that a personis not held guilty whenhe
doessomething under circumstancesin which he is absolutely
.
helpless Thisiscalledtheprincipleof jus necessitatis
. An exam
-
ple was given by Bacon to illustrate .
this Two shipwrecked sailors
caught hold of a single plank which could carry only one of them
.
It wasunder thosecircumstancesthat one sailor pushed the other
into the sea
. Thesailor whowas saved
, wasprosecuted
. It was
held that he was not guilty on account of the circumstancesin
which he was placed
. ,
Likewise if a personkills anotherperson
in self
-defence he also doesnot commit any offence
. ,
However
it is to be noted that therearecertain limitationsonthe princi
-
ple ofjus necessitalis
. In Rv
. ,
Dudlej two shipwreckedsailorsate
& boy who wasin their companyin order to save themselvesfrom
.
stervation They were prosecuted for murder
. They took
up the plea of jus necessitalis
. It was held that the plea ofjus
456 JURISPRUDENCE
ANDLEGALTHEORY .[CHAP

necessitalswas not available to them

. ,
However as the situation
in which they were placed wasan abnormal one
, a recommenda
-
tion was made to the Crown for mercy and their punishment was
reduced to six months
' .
imprisonment
Another exception is in the case of infants when children
under the age of8 are exempted from criminal hability
. It is
presumed that children of tender age have no guilly mind
.
Another exception is in the case of inevitable accident which
cannotbe avertedby taking reasonablecare
. There is no inten
-
tion becaus
e theconsequence
s arenot desired
in thecaseofan
.
accident ,
Howeverthisprinciple
isnotabsolute
. It washeldin
the case of Rylands v
. Fletcher that if a person keeps admittedly
dangerous property on his premises and harm is caused by its
,
escapethat personis liable for the injury caused
. Thepleaof
inevitable accident is not available

SUGGESTED READINGS

Allen : Legal Duties

.
Barnes and Teeters : New Horizonsin Gruninology
.
,Bohlen F.H
. : Studies
intheLawofTorts
, 1926
,
Brett .
P : AnEssayon Contemporary
,
Jurisprudence
,
Butterworths
.
1975
Clark : Analysisof CriminalLiability
.
,
Gault .
R.H : Criminology
,Glueck S. : Grimeand Justice
..
,
Green .
L : Rationale
ofProxsmale
,
Cause
.
1927
,
Hall J. : General
Principles
of GriminalLaw
, .
1960
,
Hall J. : Theft
, LawandSocrety
.
,
Hart .
H.L.A : OxfordEssays
in Jurisprudence
, OxfordUniversity
,
Press .
1961
,
Hart .
fl.L.A and
,
Honore A M
. : Causation
in theLaw
, ,
Oxford .
1959
,
Holland TE
. : TheElementsof Jurisprudence
, ,
Oxford .
1924
,
Holmes .
O.W : TheCommon ,
Law .
1881
,
Hooton .
E.A : CrimeandtheMar
.
,Kecion G W
. : TheElementa
ry Prinaples
ofJuresprudenc
,
e .
1949
,
Kecton .
R.E : Legal
Cause
inshe
Lawof Torts
, OhioStateUniverxity
,
Press .
1963