An introduction to law of crimes

Author: Pragnya Vasishtha, Research Associate

The concept of criminal law has its roots in various traditions. India, having a substantial part of its law derived from the Common Law traditions, a brief overview on the development of criminal law in the western ideology becomes necessary prior to discussing the concept of crime. As per Richard Frase, there are three things every law student (and lawyer) should know about comparative and international criminal justice at the close of the twentieth century: “first, that foreign systems… have successfully employed very different approaches …..on important procedural and substantive issues; second, that foreign systems are increasingly similar to ours, in important ways; and third, that regional and international human rights conventions include many provisions relevant to criminal justice, some of which are more fully complied with in foreign countries than they are [in the domestic criminal justice system] ((Richard S. Frase, Main-Streaming Comparative Criminal Justice: How To Incorporate Comparative And International Concepts And Materials Into Basic Criminal Law And Procedure Courses, 100 W. Va. L. Rev. 773 1997-1998, p. 775)).”

It all began with the Greeks- Plato in his Laws ((English translation by Benjamin Jowett, available at http://www.gutenberg.org/catalog/world/readfile?fk_files=3274645, (last visited July 14, 2013).))has discussed the role of criminal law at great length. Plato casts light on retributive theories of punishment by suggesting that an adjudicator can be committed to retribution and yet rightly believes that it is inappropriate to give an offender the full punishment he deserves. He laid a basis for the view that the “causation” (of the crime), lays the foundation for the just punishment of offenders. Otherwise, the public’s intuitive anger at offenders may lead to civil unrest ((Westen, Peter K., Why Criminal Harms Matter: Plato’s Abiding Insight in the Laws. Available at SSRN: http://ssrn.com/abstract=1008965 (last visited July 8, 2013).)). He also discusses the mental disease and intoxication, negligence, attempts, intentions ((See Jerome Hall,  General Principles of Criminal Law, The Law book Exchange Ltd. (2008).))- basically all the trappings of a general principles of criminal law in modern times. This immaculate differentiation is at odds with the early Anglo-Saxon and criminal jurisprudence which barely had any classification of crimes. The analysis and works of most of the Criminal Law jurors ((Including Bracton, who wrote De Legibus et Consuetudinibus Angliae 399, 400 (Twiss, ed.1879).))focussed on the procedural issues.

Various English writers in the law applied in the English criminal law in royal courts-from Glanvill and Bracton in the twelfth and thirteenth to Sir John Fortes cue and Christopher St. German in the late fifteenth and early sixteenth centuries ((Harold J. Berman, The Origins of Historical Jurisprudence: Coke, Selden, Hale, 103 Yale L.J. 1651 1993-1994, p. 1654)). The next addition to English Criminal law came in the form of Hale’s Historia Placitorium Coronae (also known as the History to Pleas of the Crown) ((Available at http://www.archive.org/stream/pleasofcrownorme00hale#page/n7/mode/2up, (last visited on July 13, 2013).))in 1736 which defined and consolidated criminal laws not only in conventional arenas, but also in many controversial fields, such as witchcraft and crimes against God. Hale’s work found much praise and acceptance by later jurists such as Blackstone and Fitzjames Stephen. The later work of Pollock and Maitland (1895) has been cited as a path breaking academic analysis of the development of law in the United Kingdom.

A crime has been defined in the Halsbury’s Laws of England as “a wrong which affects the security or well-being of the public generally so that the public has an interest in its suppression ((Halsbury’s Laws of England, 1 Vol 25, Criminal Procedure, 5th ed. Lexis-Nexis)).” However, this definition is incomplete in many aspects. A precise definition is not possible as the very nature and concept of crime as envisaged by the society keeps changing with the times. There is no better example than the Naz Foundation ((Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277))case where the Delhi High Court decriminalised homosexuality- something which was unimaginable even a decade back.

In India, the development of Criminal Law has been slightly erratic- prior to the entry of the British East India Company, the customs, usages and laws were not uniform in India ((See M.P. Singh, Outlines of Indian Legal and Constitutional History, Lexis Nexis Butterworths Wadhwa, (2009).)). Arthashastra, Manu Smriti and Yajnavalkya Smriti were the three leading law codes of ancient India ((PSA Pillai’s Criminal Law 14, Lexis-Nexis Butterworths Wadhwa (KS. Vibhute ed., 2012).)). The Indian Penal Code of 1860, Code of Criminal Procedure of 1861 (amended in 1973) and Indian Evidence Act, 1872 are the major criminal legislations in India. Besides these major acts, special Criminal Laws are also passed by Indian Parliament.

As per the Tagore Law Lectures, the following concepts ought to be present in every crime ((Syed Shamsul Huda, The Principles of the Law of Crimes in British India 14, Tagore Law Lectures 1902, Eastern Book Company, (1993).)):

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

2)     An evil intent on the part of such a human being.

3)     An act committed or omitted in furtherance of such an intent;

4)     An injury to another human being or to Society at large by such act.

This definition is found lacking in many terms as crimes need not be committed by human beings alone. Artificial persons such as corporations can also be held liable for crimes. This is remedied by Section 11 of the Indian Penal Code which reads: “The word person includes any Company or Association or body of persons, whether incorporated or not.”

Crimes and Torts – two broad categories of law are criminal and civil with civil law covering all law other than criminal law, including property law, contract law, and tort law. Tort is a civil action in which an individual asks to be compensated for personal harm, either physical or mental.

A theory of penal law should be tested by the significance of its explanation of existing penal law, and the scholar’s primary vocation is to increase that knowledge. If he foregoes the rigours of that task because of his desire to reform law, the results are bound to be problematical ((Jerome Hall,  General Principles of Criminal Law 2, The Lawbook Exchange Ltd., (2008).)). According to Henry M. Hart, focus and effort ought to be spent in comprehending “the method of criminal law” rather than analysing the concept of crime as a natural and social phenomenon ((Henry Hart, Jr., The Aims of Criminal Law, 23 Law & Contemp. Probs. 401 1958, p.402)). Hart goes on to postulate that criminal law needs to be viewed as the pursuit of human purposes through the forms and modes of social organisation. According to him, criminal law is a series of commands binding upon the community the disobedience of which is met with enforceable sanctions ((Ibid, p.403)). The solemn and formal condemnation of the community of the wrong act characterizes physical hardship as punishment ((Gardner, Bailey v. Richardson and the Constitution of the United States, 33 B.U.L. Rev. 176, 193 (1953).)).

Broadly, the main concepts in Criminal law revolve on the principles of criminal liability. This includes the nature of crime, the elements actus reus (wrongful act) and mens rea (guilty conscience or the intention), general defences including those based on the maxim actus me invite factus non set mens actus (An act done by me against my will is not my act), capacity to commit the crime (doli incapax) and immunity from the same. Abetment in the performance of the crimes and inchoate (i.e., incomplete) offences are also included in the same.

The main function of criminal law is to enforce social control so as to control the behaviour of people within its jurisdiction. Criminal law is a written statement of rules to which people must conform. It discourages revenge by delegating enforcement to others (authority in whom power is vested to do so by law), criminal law controls an individual’s need to seek revenge or vengeance against those who violated his or her rights. It reflects the constantly changing public opinions and moral values. The boundaries of moral and immoral behaviour are defined by criminal law. When law fails to keep up with the changing social behaviour, it leads to a crisis in the law and order system. The deterrent power of criminal law is tied to the authority it gives the state to sanction or punish offenders.

“The chief reason for the ferocity of the penalties was the weakness of the machinery of justice. It is generally true that a strong government is a mild one, and that a weak administration of the laws tries to make up for its inefficiency by its cruelty ((Leon R. Yankwich, Changing Concepts of Crime and Punishment, 32 Geo. L. J. 1 1943-1944, p.12)).” Any punishment which does more than what is necessary to disarm the enemy of society is barbarous ((Ibid, p.22)). Criminal law thus has a social control function to control, restrain, and direct human behaviour through its ability to punish and correct law violations. The threat of punishment associated with violating the law is designed to prevent crimes before they occur.

Crimes and other common law wrongs

Author: Pragnya Vasishtha, Research Associate

Blackstone ((William Blackstone, Commentaries on the Laws of England, Book 4, Oxford Clarendon Press, 1765-1769 p.5))in his Commentaries on the Laws of England has stated that crimes are public wrongs. Private wrongs, for Blackstone, refer to “an infringement or privation of the civil rights which belong to individuals, considered merely as individuals”, while public wrongs refer to “breach and violation of the public rights and duties, due to the whole community, considered as community, in its social aggregate capacity… it affects the individual, and it likewise affects the community.” ((Blackstone: Op.Cit. Note 1))Private rights usually relate to the body, mind, reputation and estate (property).

Personal actions are actions founded either on contracts or on torts; that is to say, they are either actions ex contract or actions ex delicto; torts being wrongs independent of contract; and being either (i) non-feasance, or the omission of acts which a man was by law bound to do, or (ii) malfeasances, or the commission of acts, which were themselves unlawful ((Jay Laxmi Salt Works (p) ltd. v. State of Gujarat , 1994 SCC (4) 1, para 15)). A crime presents these characteristics: (1) it is a harm, brought about by human conduct which the sovereign power in the State desires to prevent; (2) among the measures of prevention selected is the threat of punishment; and (3) legal proceedings of a special kind are employed to decide whether the person accused did in fact cause the harm, and is, according to law, to be held legally punishable for doing so ((P Rathinam v. Union of India, AIR 1994 SC 1844, See pp. 1 to 5 of Kenny’s Outlines of Criminal Law, 19th Ed)).

As Lamond observes, “Many crimes, especially traditional crimes against the person and property, have a civil law analogue”. ((Grant Lamond, “What is a Crime?”, Oxford Journal of Legal Studies 27(4) (2007): pp. 609-632 at p. 630))In P. Rathinam v. Union of India, ((AIR 1994 SC 1844))the Supreme Court observed, “In a way there is no distinction between crime and a tort, inasmuch as a tort harms an individual whereas a crime is supposed to harm a society. But then, a society is made of individuals. Harm to an individual is ultimately the harm to the society.”

Being a civil injury, tort differs from crime in all respects in which a civil remedy differs from a criminal one. There are certain essential marks of difference between crime and tort they are ((Lakshmi Somanathan, Nature and scope of law of torts, http://www.legalserviceindia.com/articles/torts_s.htm, (last visited July 25, 2013).)):

  •  Tort is an infringement or privation of private or civil rights belonging to individuals, whereas crime is a breach of public rights and duties, which affect the whole community.
  •  In tort the wrong doer has to compensate the injured party whereas in crime, he is punished by the state in the interest of the society.
  •  In tort the action is brought about by the injured party whereas in crime the proceedings are conducted in the name of the state.
  •  In tort damages are paid for compensating the injured and in crime it is paid out of the fine which is paid as a part of punishment. Thus the primary purpose of awarding compensation in a criminal prosecution is punitive rather than compensatory.
  •  The damages in tort are unliquidated and in crime they are liquidated.

Not every civil wrong is a tort. A civil wrong may be labelled as a tort only where the appropriate remedy for it is an action for unliquidated damages. Thus for example, public nuisance is not a tort merely because the civil remedy of injunction may be available at the suit of the attorney general, but only in those exceptional cases in which a private person may recover damages for loss sustained by him in consequence thereof.

Jeremy Bentham differentiates between civil and criminal wrongs as one which prescribes rights and the other prescribes sanctions.  The Tagore Law Lectures, which are the earliest available comments on the Indian legal system under the British Raj, have claimed that the main distinction between criminal and civil wrongs is that of seriousness. The consequences of crimes have been said to be very grave as compared to that of civil wrongs ((Syed Shamsul Huda, The Principles of the Law of Crimes in British India 5, Tagore Law Lectures 1902, Eastern Book Company, (1993) .)). This leads to the defendant in a criminal case being treated with greater abundance of caution and leniency [so as to live up to the motto of “Better that ten guilty persons escape than that one innocent suffer”] ((Ibid., p.7; see 4 William Blackstone, Commentaries *358)).

Thus rather than saying that criminal law and civil law are each concerned with different kinds of wrongs, it seems more accurate to say that the wrongs that they are concerned with overlap with each other; or maybe more strongly, that the wrongs criminal law are concerned with constitute a subset of the wrongs that civil law are concerned with ((AYK Lee, ‘Public Wrongs and the Criminal Law’ (2013) Criminal Law and Philosophy, p.7, available Here, (last visited July 25, 2013).)). This is evident by the existence of both torts and criminal laws against bodily assaults.  Defamation is another good example of a civil and criminal wrong. The amount of damages payable in such a case will be determined by the stature of the person so defamed, the nature of the defamation, the motive and the gravity of the act. However, it is irrelevant in case it is pursued in a criminal sphere ((See RD Udeshi v. State of Maharashtra, AIR 1965 SC 881)).

The ultimate aim of pursuing a civil remedy is to enforce some right and recover damages for the injury so caused. Criminal law on the other hand, has the objective of punishing the wrongdoer for some acct that he is accused of. The burden of proof lies on the plaintiff in the civil proceedings. A civil case can be filed by a private party whereas a criminal case is always brought by the State. Ultimately, it is upto the person whose rights have been infringed to pursue the matter in a civil or criminal court (if a wrong is of such dual nature).

It can be neatly summed up in this quote by William Geldart:

“The difference between civil law and criminal law turns on the difference between two different objects which law seeks to pursue – redress or punishment. The object of civil law is the redress of wrongs by compelling compensation or restitution: the wrongdoer is not punished; he only suffers so much harm as is necessary to make good the wrong he has done. The person who has suffered gets a definite benefit from the law, or at least he avoids a loss. On the other hand, in the case of crimes, the main object of the law is to punish the wrongdoer; to give him and others a strong inducement not to commit same or similar crimes, to reform him if possible and perhaps to satisfy the public sense that wrongdoing ought to meet with retribution ((William Geldart, Introduction to English Law 146 (D.C.M. Yardley ed., 9th ed. 1984).)).”