Analysis of Corporate Criminal Liability in India

Sibani Panda, Research Associate

A company can only act through human beings and a human being who commits an offence on account of or for the benefit of a company will be responsible for that offence himself. The importance of incorporation is that it makes the company itself liable in certain circumstances, as well as the human beings – Glanville Williams

Corporations are considered to be an integral part of the society. Besides the governmental agencies, the corporations are deemed to be the effective agents of action in our society.  But, corporations, as it is understood today, have not been same in the past. But over a period of time, the development of the society has had a direct influence on the structure and functions of the corporation. This had led to an ever increasing demand for the law to recognize the change and suit its applications ((Balakrishnan. K; “Corporate Criminal Liability – Evolution of the concept” (1998) Cochin University Law Review p.255)). Over the last few decades, lot of complexities has evolved in the corporate sector because of globalization and privatization of different kind of business entities all over the world. The word ‘Corporation’ has no strictly technical or legal meaning ((Stanley, Re [1906] 1 Ch. 131)). It may be described to imply an association of persons for some common object. The purposes for which people may associate themselves are multifarious and includes economic and non- economic objectives. But in common parlance, the word ‘corporation’ is normally reserved for those associated for economic purposes, i.e., to carry on a business for gain. A corporation is an artificial entity that the law treats as having its own legal personality, separate from and independent of the persons who make up the corporation ((Salomon v. Salomon (1897) AC 22)). A corporation has an independent existence which is separate from the shareholders constituting it. The corporations are run by natural persons and these people’s actions can be criminal in nature and can sometimes even result in great economical as well as human loss to the society.

CRIMINAL LIABILITY: THE CONCEPT

Criminal Liability is only attached to those acts in which there is violation of Criminal Law ((Abhishek Anand, Holding Corporations Directly Responsible For Their Criminal Acts: An Argument, www.manupatra.com)). The basic rule of criminal liability revolves around the basic Latin maxim actus non facit reum, nisi mens sit rea which means in order to make a person or entity criminally liable, it is required to establish that an act or omission has been committed which is forbidden by law and it has been done with guilty mind. So every crime constitutes two elements ((Russell, W.O., Russell on Crime p.17-51 (J.W.C. Turner Ed., New Delhi; Universal Law Publishing Pvt., 2001).  )):

  • Actus reus: Actus reus connotes those result of human conduct which is forbidden by law and hence constitutes of Human action; result of conduct and act prohibited by law.
  • Mens rea. On the other hand, mens rea is generally considered as blame worthy mental condition.

CONCEPT OF CORPORATE CRIMINAL LIABILITY:

Corporations play a significant role in creating and regulating the business activities and also in managing the lives of the common people, as a result of which, the modern criminal law systems overlooked the possibility of holding the corporations criminally liable for the commission of a criminal offence.

The doctrine of corporate criminal liability turned from its infancy to almost a prevailing rule ((Thiyagarajan, T. Sivananthan; “Corporate Criminality-concept”, available at: http://www.manupatra.com/Articles/artlist.asp?s=Corporate/Commercial)). It is very difficult to define corporate criminal liability in the present day scenario as it covers wide range of offences. However for understanding its purpose, it can be defined as an illegal act of omission or commission, punishable by criminal sanction committed by an individual or group of individuals in the course of their occupation ((Williams, K.S.; “Text Book on Criminology”, Universal Law Publishing Pvt., New Delhi, 2001, p.64)).  It can be even defined as socially injurious acts committed in course of occupations by people who are managing the affairs of the company to further their business interest ((Siegal, L.J.; “Criminology” , Wadsworth/ Thomson Learning, London, 2000, pp.398-99)). Corporate criminal liability also represents a kind of instrumentalities through which the trust of the people continues to be betrayed by persons in positions of responsibility, authority and power in the business sector. Corporate crime has been defined as “the conduct of a corporation or of employees acting on behalf of a corporation, which is prescribed and punishable by law ((Braithwaite, John ; Corporate Crime in the Pharmaceutical Industry, 1st Edition, Routledge and Kegan Paul, London, 1984, p.6.)).” Thus the “Corporate criminal Liability” refers to the imposition of criminal liability on either the corporation or its employees and agents and it is also referred to as white-collar crime.

ORIGIN OF CORPORATE CRIMINAL LIABILITY

During the early sixteenth and seventeenth centuries, the general notion was that corporations could not be held criminally liable. In the early 1700s, corporate criminal liability faced four obstacles:

  • First obstacle was attributing acts to a juristic fiction, the corporation. During Eighteenth-century, courts and legal thinkers approached corporate liability with an obsessive focus on theories of corporate personality; a more pragmatic approach was not developed until the twentieth century.
  • The second obstacle was that legal thinkers did not believe corporations could possess the moral blameworthiness necessary to commit crimes of intent.
  • The third obstacle was the ultra vires doctrine, under which the courts would not hold corporations accountable for acts, such as crimes, that were not provided for in their charters.
  • The fourth obstacle was court’s literal understanding of criminal procedure; for e.g. the Judges required the accused to be brought physically before the court ((V.S. Khanna, Corporate Criminal Liability: What Purpose Does It Serve?, 109 Harv. L. Rev. 1477; Beck & O’Brien, Corporate Criminal Liability, 37 American Criminal Law Review 261; Reinier H. Kraakman, Corporate Liability Strategies and the Costs of Legal Controls, 93 Yale L.J. 857, 857-58 (1984).)).

In the modern era, the activities of the corporations has had a tremendous impact on the society and it has also helped in the development of the society to a large extent  but at times, the activities of the corporation has also been proved disastrous to the society which then falls under the category of corporate crimes. Despite those disastrous activities of the corporations, the law was not willing to impose criminal liability upon corporations because ((Zee Tele films Ltd. v. Sahara India Co. Corporation Ltd., 2001 (3) Recent Criminal Reports (Criminal) 292; Motorola Inc. v. UOI, 2004 Cri LJ 1576)):

  • Corporations cannot have the mens rea or the guilty mind to commit an offence;
  • Corporations cannot be imprisoned.

Even the common law did not impose criminal liability on corporations because it was based on the belief that a corporation lacked moral blameworthiness and the requisite mens rea, which is an essential element of a crime. Further, the thought that was prevalent was that a corporate has ‘no soul to damn and no body to kick’. But from the early 20th century onwards, the importance of the criminal liability of the corporation was recognized by various courts.

THEORIES OF CORPORATE CRIMINAL LIABILITY

  • Theory of Vicarious Liability – The doctrine of vicarious liability recognizes that a person may be bound to answer for the acts of another. Similarly in the case of corporations, the company may be liable for the acts of its employees, agents, or any person for whom it is responsible. The traditional theory of vicarious liability holds the master liable for the acts of the servant in the course of the master’s business without proof of any personal fault on the part of the master.
  • Identification theory– In this theory, the corporations are held criminally liable for true crimes and regulatory offences. This theory recognizes that the acts and state of mind of certain senior officers in a corporation are the directing minds of the corporation and thus deemed to be the acts and state of mind of the corporation itself. The corporation is considered to be directly liable under this theory.
  • Aggregation Theory- – Under the aggregation theory, the corporation aggregates the composite knowledge of different officers in order to determine liability. The company aggregates all the acts and mental elements of the important or relevant persons within the company to establish whether in toto they would amount to a crime if they had all been committed by one person.180 According to Celia Wells, aggregation of employees’ knowledge means that corporate culpability does not have to be contingent on one individual employee’s satisfying the relevant culpability criterion ((Celia Wells, Corporations and Criminal Responsibility, 2nd ed. (Oxford: Oxford University Press, 2001) p. 156.)).

POSITION OF CORPORATE CRIMINAL LIABLITY IN INDIA:

Until recently, courts in India were hesitant to attribute criminal liability to a company for an offence that required a criminal intent and they were of the opinion that they could not prosecute companies for offences that entailed a mandatory sentence of imprisonment because the corporations could not be criminally prosecuted for offenses requiring mens rea as they could not possess the requisite mens rea.

In A. K. Khosla v. S. Venkatesan ((A. K. Khosla v. S. Venkatesan  (1992) Cr.L.J. 1448)), two corporations were charged for committing fraud under the Indian Penal Code. The Magistrate issued orders against the corporations and the Court observed that in order to prosecute corporate bodies, there were two pre-requisites, the first being that of mens rea and the other being the ability to impose the mandatory sentence of imprisonment. A corporate body could not be said to have the necessary mens rea , nor can it be sentenced to imprisonment as it has no physical body.

In Oswal Vanaspati & Allied Industries v. State of U.P. ((1993 1 Comp LJ 172)), the Full Bench of the Allahabad High Court held that a company being a juristic person cannot obviously be sentenced to imprisonment as it cannot suffer imprisonment.

In Zee Tele films Ltd. v. Sahara India Co. Corp. Ltd ((2004 Cri LJ 1576))., the court dismissed a complaint which was filed against Zee Tele films under Section 500 of the IPC. In this case, it was alleged that Zee had telecasted a program which was based on falsehood and thereby defamed Sahara India. The court held that mens rea was one of the essential elements of the offense of criminal defamation and that a company could not have the requisite mens rea.

In Motorola Inc. v. Union of India ((Motorola Inc. v. Union of India,(2004) Cri.L.J. 1576)), the Bombay High Court quashed a proceeding against a corporation for alleged cheating and the court concluded that it was impossible for a corporation to form the requisite mens rea, which was the essential ingredient of the offense. Thus, the corporation could not be prosecuted for cheating under section 420 of the IPC.

In the case of The Assistant Commissioner, Assessment-II, Bangalore & Ors.  v. Velliappa Textiles ((The Assistant Commissioner, Assessment-II, Bangalore & Ors.  V. Velliappa Textiles, (2004) 1 Comp. L.J. 21)), a private company was prosecuted for violation of certain sections under the Income Tax Act. Sections 276-C and 277 of the Income Tax Act provided for a sentence of imprisonment and a fine in the event of a violation. The Supreme Court held that the respondent company could not be prosecuted for offenses under certain sections of the Income Tax Act because each of these sections required the imposition of a mandatory term of imprisonment coupled with a fine and the court could not only impose fine on the corporation. After strict interpretation, the Court held that a corporation did not have a physical body to be imprisoned and therefore could not be sentenced to imprisonment. The Court also noted that while interpreting a penal statute, if more than one view is possible, the court is obliged to lean in favor of the construction that exempts an accused from penalty rather than the one that imposes the penalty.

In MV Javali v. Mahajan Borewell & Co and Ors ((AIR 1997 SC 3964))where the Supreme Court held that mandatory sentence of imprisonment and fine is to be imposed where it can be imposed, but where it cannot be imposed ,namely on a company then fine will be the only punishment.

Thus the Indian courts never felt about inclusion of company on certain criminal liability.

The legal difficulty arising out of the above situation was noticed by the Law Commission and in the 41st Report of Law commission of India, the Law Commission suggested amendment to Section 62 of the Indian Penal Code by adding the following lines:

  • “In every case in which the offence is only punishable with imprisonment or with imprisonment and fine and the offender is a company or other body corporate or an association of individuals, it shall be competent to the court to sentence such offender to fine only.”
  •  In every case in which the offense is punishable with imprisonment and any other punishment not being fine and the offender is a corporation, it shall be competent to the court to sentence such offender to fine.
  •  In this section, “corporation” means an incorporated company or other body corporate, and includes a firm and other association of individuals.

But this bill prepared on the basis of the recommendations of the law commission lapsed and it did not become law. However few of these recommendations were accepted by parliament and by suitable amendment some of the provisions in the taxation statutes were amended. The Law Commission has tried consistently to find a formula which would solve the problem of fixing appropriate punishment for the Corporations which commit offences; this has been done with a view to punish a corporation where mandatory minimum punishment is both punishment and fine, in such a case it needs to be fixed as to how the law courts would advance if this question comes up before them.

But the view of the courts on corporate criminal liability was changed in a landmark case of Standard Chartered Bank and Ors. v. Directorate of Enforcement (([2005] 4 SCC 530)). In this case, Standard Chartered Bank was prosecuted for the alleged violation of certain provisions of the Foreign Exchange Regulation Act, 1973 and the Supreme Court did not go by the literal and strict interpretation rule required to be done for the penal statutes and held that the corporation could be prosecuted and punished with fines, regardless of the mandatory punishment required under the respective statute. The Court observed that all the penal statutes are to be strictly construed in the sense that the Court must see that the thing charged as an offence is within the plain meaning of the words used and must not strain the words on any notion that there has been a slip that the thing is so clearly within the mischief that it must have been intended to be included and would have included if thought of ((Tolaram Relumal and Anr. v. The State of Bombay MANU/SC/0057/1954)).

After the decision of the Standard chartered bank case, the courts were generally of the view that the companies won’t be exempted from prosecution merely because the prosecution is in respect of offences for which punishment prescribed is a mandatory imprisonment.

In Iridium India Telecom Ltd. v. Motorola Incorporated and Ors ((AIR 2011 SC 20)), the Hon’ble Supreme court held that a corporation is virtually in the same position as any individual and may be convicted under common law as well as statutory offences including those requiring mens rea. The criminal liability of a corporation would arise when an offence is committed in relation to the business of the corporation by a person or body of persons in control of its affairs. In such circumstances, it would be necessary to ascertain that the degree and control of the person or body of persons is so intense that a corporation may be said to think and act through the person or the body of persons. In this case, it was also held that the corporations can no longer claim immunity from criminal prosecution on the grounds that they are incapable of possessing the necessary mens rea for the commission of criminal offences.

In CBI v. M/s Blue-Sky Tie-up Ltd and Ors ((CBI v. M/s Blue-Sky Tie-up Ltd and Ors ,Crl. Appeal No(s). 950 of 2004)), an appeal arose from criminal application which was quashed by the Calcutta High Court. The Appellant filed criminal applications against the respondents for committing criminal offences under the provisions of the Indian Penal Code and under Section 13(2) read with 13(1)(c) and (d) of the Prevention of Corruption Act, 1988. Pursuant to that, the Respondents filed applications under Section 482 of the Criminal Procedure Code for quashing of the said proceedings. The Calcutta HC quashed the proceedings against the Respondent No. 1 on the false premise that the company being a body corporate cannot be prosecuted, but the Supreme Court held that the companies are liable to be prosecuted for criminal offences and fines may be imposed on the companies.

The criminal intent of the ‘alter ego’ of the company or corporate body, i.e. the person or group of people that guide the business of the company would be imputed to the corporation. It is now an established legal position in India that a corporation can be convicted of offences that require possession of a criminal intent, and that corporation cannot escape liability for a criminal offence, merely because the punishment prescribed is ‘imprisonment and fine’.

But it is always a controversial issue that Corporations cannot be sentenced to imprisonment and since, there is no explicit provision relating to it, the Supreme court  have held in various cases that it is better to impose fine upon the corporation even in the cases where there is a punishment for imprisonment. The imposition of fines may be made in four different ways as provided in the IPC. It is the sole punishment for certain offences and the limit of maximum fine has been laid down; in certain cases, it is an alternative punishment but the amount is limited; in certain offences, it is imperative to impose fine in addition to some other punishment and in some it is obligatory to impose fine but no pecuniary limit is laid down ((Angira Singhvi ,”Corporate Crime and Sentencing in India: Required Amendments in Law”, International Journal of Criminal Justice Sciences ,Vol 1 Issue.2 July 2006)). Section 357, Cr PC, empowers a Court imposing a punishment of fine or a sentence of which fine forms a part, to order payment of compensation, out of the fine recovered, to a person for any loss or injury caused to him by the offence.

Even the environmental degradation arising out of industrial pollution in recent years has become a positive danger to social security. Thus, Legal provisions have been incorporated in the Indian Penal Code ((Indian Penal Code, 1860 S. 277. Fouling water of public spring or reservoir: Whoever voluntarily corrupts or fouls the water of any public spring or reservoir, so as to render it less fit for the purpose for which it is ordinarily used, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.)), to punish industrial and business organizations which pose danger to public life by polluting water ((Water Pollution (Amendment) Act,1978)), and District Magistrate can initiate proceedings against them under Section 133 of the code of Criminal Procedure, 1973.

Section 16 of Environment (Protection) Act, 1986 and Section 47(2) of the Water (Prevention and Control Pollution) Act, 1974 also explicitly lays down provision for the offences by companies. It states companies can be prosecuted under certain circumstances and thus, reflects the concept of vicarious criminal liability.

Corporate liability may appear incompatible with the aim of deterrence because a corporation is a fictional legal entity and thus cannot itself be “deterred.” In reality, the law aims to deter the unlawful acts or omissions of a corporation’s agents. To defend corporate liability in deterrence terms, one must show that it deters corporate managers or employees better than does direct individual liability ((Lewis A. Kornhauser , An Economic Analysis of the Choice Between Enterprise and Personal Liability for Accidents, 70 CAL. L. REV. 1345 passim (1982).)).

CONCLUSION:

At one point of time, the concept of a separate legal personality of a corporation was exploited by individuals to evade personal liability. But now it is well established that a corporation cannot escape liability for offences simply on the basis that they have no body or soul and cannot possess any mental state. The statutes in India are not in pace with these developments and they do not make corporations criminally liable and even if they do so, the statutes impose no other punishments except for fines. The laws relating to corporate criminal liability in India are vastly insufficient. The legislature needs to be active in this regard and form certain concrete laws which would ensure that the corporations do not go unpunished and a better social order needs to be established. Certain Provisions relating to procedural law also needs to be created and modified so that the corporations can be adequately dealt with. It is therefore recommended that amendments should be carried out by the legislature to avoid the judiciary from defining the law and make certain provisions relating to procedural laws so that the corporations can be adequately dealt with and the courts are also required to make the statutes fit for strict interpretation by providing for infliction of criminal liability on the corporations as also providing for various kinds of punishments apart from fines only.

Variations in liability – Mistake, intoxication, compulsion, legally abnormal persons

Ria Tandon, Research Associate

DIFFERENCE IN LIABILITY IN GENERAL EXCEPTION

Criminal liability has been clearly defined by the lexicon dictionary as something where there is a presence of accountability and responsibility to the other person by the ways like that of criminal sanction ((The Lexicon, 3 rd edition)). Through this paper the author wishes to bring forth the meaning the liability with reference to exceptions like intoxication, mistake, legally abnormal person and compulsion.

The provision of the exception cases are dealt with the Indian Evidence Act section 105 which talks about the burden of proving that the case of the offender comes under the exceptions. It states that when a person has been accused of some offence, then the burden to prove the circumstances of the offence to fall under the criteria of exception in Indian Penal Code, or any proviso ((Anthony F., Law of Evidence, pp-337, Dhingara and Company , Patna Law House.))present in that code lies on him.

s in general- In Halsbury’s Laws of England ((4 th ed, Vol XI ,Para 19, Page 22.)), it is explained as follows – The general principle when it comes to common law is that  the prosecution has to prove the guilt of a defendant beyond all the reasonable doubt; it is not upon the defendant so as to establish his innocence. While when it comes to the justification in the common law, such things like  accident , consent , compulsion, drunkenness, self defense , the burden of proving all this lies on the prosecution.  The burden of proving the insanity lies with the defense ((Raghavan V.V, Law Of Crimes, 3 rd ed, pp-127, Orient Law House.)).

Whatever be the position of the enactments of the Indian Evidence Act earlier , section 103 and 105 of the Evidence places the burden of proof on the accused himself. It is not solely on the  to prove his innocence, he has to also base his arguments on basis of the proof provided by the prosecution. It is upon the court to decide whether the evidence provided by the defense was falling under the ambit of the exception ((Mst. Anandi v. Emperor, 24 Cr Lj 225.)).

Private defense or self defense of personal property is of the most prime importance to be discussed when we speak of the general defenses. Self defense is known to be the clearest of all the laws: and this very fact they didn’t make it. When we talk about the mental capacity, then in this case insanity is taken to be a valid defense. General exception is found ((Ratanlal and Dhirajlal, Law of Crimes, 23 rd ed, pp-191, Bharat Law House PVT . Ltd))to be in the law where it is developed with respect to the  state of mind of the person who commits an offence  because mental element is of great importance.

COMPULSION

Duress or The act of compelling or the state of being compelled ; the act of driving or urging by force or by physical or moral constraint; subjection to force. The compulsion which will excuse a criminal act must be present, immediate and impending and of such a nature as to induce a well- grounded apprehension of death or serious bodily harm. To constitute ((Henry Campbell Black, Black’s Law Dictionary, 5 th ed, pp-260, West Publishing Company))“compulsion” or coercion rendering payment involuntary, there must be some actual or threatened exercise of power possessed, or supposedly possessed, by payee over payer’s person or property, from which payer has no means of immediate relief except by advancing money. This has been stated as the meaning of compulsion by Black’s Law dictionary.

The accused who is forced in committing a crime claim at times compulsion as a defense. Compulsion gives rise to four major ((Chandrasekharan Pillai K.N. , General Principles of Criminal Law , pp- 264, Eastern Book Company))problems like (1) what kind of crime can be excused under compulsion? (2) What are the ingredients of compulsion? (3) How close would the commission of a crime be to the coercion which takes place? (4)  A person is of the honest belief that in a threat sufficient or it is necessary for a belief to be reasonable?

The Penal Code has basically incorporated the English position

Acts through which a person is compelled

Section 94 of the Indian Penal Code reads Act to which a person is compelled by threats- Except for the murder and the offences which are committed against the state. There are two instances where a person will liable or not based on the two situations. Firstly -Where a person because of the threat like being beaten up , join a group of violent people , knowing their character , cannot take the defense of being forced and will be held liable for the act. Secondly- A person who is being compelled by a gang of dacoits ((Available at http://bdlaws.minlaw.gov.bd/sections_detail.php?id=11&sections_id=2769))and is threatened by the threats of his death to do an illegal act as stated by the statutes..

Murder aspect

Murder is defined under section 300 of the IPC. The defense with respect to concerion or compulsion cannot be applied under this aspect when a person under a fear of death which is sudden or instant in manner. Any other offence which is found to be against the state including the factor of culpable homicide wherein the intention is not of murder but is committed because of threat is considered to be under the protection.

Instant Death

Under the fear of death that is instant in nature will only be considered as a valid point for the defense under the exception duress or compulsion and not fear of distant.

The IPC (Amendment) Bill, 1972 ((Available at http://www.shareyouressays.com/118500/section-94-of-indian-penal-code-1860-explained.))vide clause 31 had suggestion of widening the ambit of the scope of section 94 , so as to include point of the physical hurt of the victim as well the threat to his / her family but this suggestion was not take up .

INTOXICATION

For understanding the liability in case of intoxication we basically deal with two sections 85 and 86 ((Section 85 and 86 of Indian Penal Code))which talk about intoxication in IPC . Section 85 states that a person commits a crime without knowing the nature of act under the influence and the wrong committed by him without his knowledge about the thing which intoxicated him. Section 86 talks about the aspect where a person has the intention and full knowledge about the act and he will be held liable whether he does it under intoxication or he does it when he doesn’t know the thing which intoxicated him.

Intoxication is basically by way of consumption of alcohol or drugs which affect the person’s judgment power, perception and the self-control. These things may cause a person to commit crime.

The attitude ((Chandrasekharan Pillai K.N. , General Principles of Criminal Law , pp- 267, Eastern Book Company.))of courts in the Common law countries like India or UK has been ambivalent. In theory they detect that there is no element of mens rea in a crime committed by a drunk person. Though Drunkness doesn’t serve any good to the society at large but Criminal Law distinguishes it as voluntary intoxication and involuntary intoxication. Though voluntary intoxication is never a  but always the aspects of mens  rea is seen.

MISTAKE OF FACT

Mistake of Fact ((Id at p. 274))can be taken as a defense only when it helps in negating the material elements in the crime. Mistake prevents a person from forming mens rea for example when the accused mistakes women’s  consent for sexual intercourse. The mistake of fact leads to the distortion of the surrounding of a crime scene where the offender believes that he is being attacked while in the real sense he is being arrested lawfully.

Section 79 of IPC explains the act which is justified by the person based on mistake of fact made by him which is in the rightful justification by the law.

Illustration so as to explain is A sees Z committing an Act of murder as it seem to A .  Hence A in good faith seizes Z in order to bring the act of Z before the proper authorities. So in this case A has not committed any offence per se but it can seem as if he committed it in self.

This is kind of analogous of section 76 ((Section 76 of the Indian Penal Code))which talks about the fact that person who commits some act will not be liable for it if there is a mistake of fact and not the mistake of law with reference to the act he believes is bounded by law.

A person will be justified in doing an act even the following condition (1) When his or her country is between war. (2) Where is some kind of destruction as like rebellion and (3) When the act is done by the state based on the instructions from the Centre or by the subsequent satisfaction ((Forester, 12 BLR (SC) 12; See also Kamatchi Bai Sabeha, 13 Moor PC Cases 22; Hari Bhanji, 5 Mad 273.))or the when the Martial Law ((Channappa Shantirappa V Emperor, AIR 1937 Bom 57.))is promulgated.

Section 79 makes offence as a non-offence, only on the fact when the offending turns to an act which can be justified by Law or in bona fide intention it is seen to be in the mistake of fact something which is to be justified ((Raj Kapoor, AIR 1980 SC 605 1980 Cr LJ 436: 1980 UJ (SC) 180.)).

LEGALLY ABNORMAL PERSON

The definition of the term legally abnormal person is not very clear but here we take insanity as abnormal attributes since Insanity has been defined by Black’s Law Dictionary as a social or legal term rather than a medical condition in this case. The person is seen to be unfit to enjoy liberty of action since his actions are not reliable.

Insanity as a to Crime

There are various ways by which court tests the criminal liability of a person. The test is provided under the Model Penal Code ((Black’s Law Dictionary, 5 th ed))where it states that a person is not responsible for criminal conduct if during the time of the conduct because of the mental illness or that he lacks the proper thinking capability.

The basis which is looked after when it comes to the aspect of Insanity as an excusatory is based on the assumption that the offender does not possesses the element of malice aforethought ((This means that the offender does not have the capacity to entertain a guilty before committing the act)). The person does not possess a normal working mind. Hence it is very clear fact that the person does not voluntarily commit the particular act. However these acts surely affect the society at large.  The criminal law has taken this issue very seriously so that is why it has made some special provisions which are govern the punishment and the criminal liability of the such people who are seen to be abnormal.

The element of morals is totally absent when it comes to abnormal person since they lack the “ free will” and the autonomy which is in possession of the law. There is really no point in granting punishment to the offenders since they are unlikely to understand any command of law covering the wrongful act committed by them.

CONCLUSION

Through this paper the author tries to bring forth the various instances which exists in the different exceptions of the criminal Law. Paper answers the incidents like Intoxication where the liability of a offender lies where the stress lies on the knowledge of the act done again it can same be as mens rea .While on the other hand a person can take protection intoxication too. Then when we talk about abnormal persons wherein a person of unstable mind is taken to be safe from the liability of the criminal punishment. Although both of these exceptions are against the public Mistake of facts is can be taken as a while in case of the mistake of law is not considered as a  . In case of compulsion where the person is under threat of some person with regards to his instant death without knowing the outcome of act is held liable.

Principles of Criminal Liability

Ria Tandon, Research Associate

Criminal liability has been defined by lexicon dictionary as something wherein there is accountability and responsibility to another by the ways of legal criminal sanction ((The Lexicon, 3 rd edition)). Through this paper we are trying to understand the principles of criminal liability. Criminal guilt would attack the violator of the criminal law. However it is a very well known fact that the rule is not absolute in nature and there are some restriction the above mentioned explanation and that is the latin maxim , actus non facit reium, nisi mens sit rea ((The act itself does not make a man guilty, unless his intentions were so. The earliest trace of the maxim can be found in St Augutine’s Sermon No 118.02, where it is stated as reum linguam non facit , nisi mens rea cited in Pollock and Maitland, I I,476n; see Flower v Padget(1789) 7 TR 509; The intent and the act must concur to constitute a crime,’ per Lord Keyon CJ in Younghusband v Luffing [ 1949] 2 KB 354)). It means that no crime without the guilty mind ((Russell on crime , vol I, 12 th ed, 1964, pp 22-60. In the past , criminal liability was mental attitude .However , in cases of self- defence (defendo) and accident (per infortium), the King used to pardon the accused)).

The first principle of criminal liability or responsibility is the requisite of an act-the actus reus. The actus reus combines ((Chandrasekharan Pillai, K. N, 2007, General Principles of Criminal Law, pp. 130, Eastern Book Company))both the act and the intention of the person who commits the crime. Unless the evil thoughts which take place in the form of an action will only make law take cognizance to it.

PRINCIPLES OF CRIMINAL LIABILITY

The various examples of criminal liability are as follows:

(1) ACTUS REUS

The word actus connotes the term “deed” which basically means the action which is in physical result of the human conduct. The word “reus is defined to be something which is the result of human conduct on which law seeks imposes restrictions so as to prevent ((Kenny’s Outlines of Criminal Law, 19 th ed, JWC Turner, p 17.))it. Actus reus is made up of three constituents as follows:

(1) Conduct – Human action which is prohibited by law

(2) The result of this act , in a particular circumstances is designated as injury.

(3) Such act should be prohibited by law

Conduct – An act is defined to be an event which would be subject to the restrictions of that will ((Moard and Kadish, Criminal Law and its Process, 1962, p212.))of a person. In other words this act would be something which would be under the total control of the human being for example when a person moves his/ her hand rashly, is walking or speaking or this is considered to be the external manifestation of one’s mind. When we see the idea of conduct broadly then the human action includes both omission ((See Indian Penl Code 1860, s 32))and commission acts. When a person’s criminal liability has to be analyzed in the following ways:

(a) the origin of it in some mental or bodily activity which is a willed movement or omission.

(b) Circumstances of the act

(c) And its consequences ((See Monard and Kadish , Criminal law and its Process , p 213)).

For say take an example where there are two people A and b . Where A shoots B with a rifle where three things are seen (1) origin of the primary stage , namely the muscular contraction where the trigger is pulled (2) the circumstances like where the rifle is loaded and is in working order , the person who needs to to be killed should be in a range (3) the consequence of that act like in this case the fall of the tigger , explosion of the powder , the discharge of the and the death of the victim. Hence all these statement can be compacted in the statement as ‘ A killed B’ which consists of” an act ((See Indian Penal Code 1860, s 33. The word ‘act’ denotes as well a series of acts as a single act; the word omission denotes as well a single omission)).”

Acts which are Prohibited by Law – An act whoever apprehensible it may be unless until it is prohibited by the statute of law. Criminal acts are those only which fall under the ambit of crime under Law.

When we talk with reference to section 43 of the Indian Penal Code  talks about the legal duty which a person is committed to a duty but fails to comply with it or omits to do since he or she is “legally bound to ((See Indian Penal Code 1860, s 43)).” For say when there is a jailor under whose surveillance  a prisoners dies hence in this case he would be amounted to an illegal omission for not discharging his legal obligation of providing meals to the prisoners ((See Om Prakash v State of Punjab AIR 1961 SC 1782)).

Result of Conduct

For an act to be a crime there should always be an end result which is brought about by the Human conduct.  Actus reus is basically the end result of a human conduct and is an event. For say a death occurs by a person X so here death is result of the conduct of the accused person X .  In other words crime is something which happens because of the event and not because of an activity like shooting, stabbing, poisoning etc which might have caused the death of the person Once the desired act is done that is what all matters when we look at the  act of crime except that when we need to access the criminal liability. For say we take an example where A fires ((KD Gaur, Criminal Law: Cases and Materials, 5 th ed.))at B in order to kill him but B get minimal injury hence in this case the aspect of murder will not come into being a in this but the attempt to murder is something which will be regarded here.

MENS REA

The principle of mens rea explains the mental state which ((Chandrasekharan Pillai K.N , General Principles of Criminal Law , pp 137.))is required for accessing the criminal liability. It consists of intention, knowledge, or even the absence of even one of them negatives the contention of a crime ((Stephen James, History of Criminal Law of England, vol II, 1883, pp 94-95; Smith and Hogan, Criminal Law, 5 th ed, 1983, pp 47-48; Essay on the Indian Penal Code, Indian Law Institute, 1962, pp 56-62.’ Annual Survey of the Indian Law’, 1963, Indian Law Institute, p 499; KM Perkins, ‘ A Rationale of Mens Rea’, Harvard Law Review, no 52, 1938-39, p905; ‘ Mental Element’ , Harvard Law Review, no 74, 1960-61, p 779, Harvard Law Review,no 75, 1960-61, pp 17-21)). No act is considered to be criminal unless and until it is done with a guilty mind.

Later on two tests were evolved which determined the mens rea. Firstly whether the act in question was a voluntary act or not and secondly whether the accused could for see the consequences of his conduct ((Jerome Hali, General Principles of Criminal Law, 2 nd ed, 1960, pp 70-77; Deylin, Statutory Offence’, (1938) 4 JSPTL. Mens rea consists of two elements- first , the intent to do an act and secondly, the knowledge of the circumstances that makes that act a criminal offence)).

If we speak generally with reference to mens rea then the commentators accept four mental states which are ((Chandrasekharan Pillai K.N, General Principles Of Criminal Law, pp-137));

(1)   General Intent– This talks about the principle of actus reus wherein it sees the intent of the crime to be committed. For say in rape, sexual penetration is the deed which is done.

(2)   Specific intent–  Besides the normal intention on carrying with the act it is necessary to something in addition to that of actus reus . For example if person breaks into a house with the purpose of theft and in addition to that taking and carrying away is the orocess adopted.

(3)   Transferred Malice-In cases where the offender hurts another person instead of the one he intends to hurt. In such cases the offender is held to be liable for his offence even though the should be person of attack did not get hurt.  The malice of the actual intended victim sifts for the one who is the victim. The transfer does not take place if intent to commit a particular harm is not same. This was made clear through the case of Kurien V. State ((1975 KLT 748)).

(4)   Constructive Intent – In this case we consider not just the intention of committing harm but we look at the knowledge of the offender of the high risk of the injury because of that action In situation where a reckless act happens the person who forsees ((KD Gaur, Crimial Law: Cases and Materials, 5 th ed, pp-46))that consequences are possible because of his conduct but in turns he acts without any intention or desire to bring them in action.  There is only probability of his seeing and not desires it or foresees it. Recklessness is basically “an attitude of mental indifference to obvious risk ((Hudston v Viney [1921] 1 Ch 98)).”

CRIMINAL LIABILITY AND STATUTORY OFFENCES

Statutory Offences

An offence is basically considered to be a violation of the law. Offence is considered to be wrong in the Penal Code. The Code of the Criminal Procedure , 1973 defines offence as any act or omission ((See Criminal Procedure Code, 1973.))which is punishable under any law . The offences which are created by different statutes like taxation and national security. There are two kinds of offences such as malum in se which are inherently wrong and society recognize them as wrong. While malum prohibitum ((Available at www.legalservicesindia.com/article/mens-rea-in-statutory-offence-831-1.html))are acts which are wrong because they are prohibited by law. Statutory Offences is of need  because, it is not only the crimes which can harm the society but  also crimes like white collar crimes also harm the society. There have been many scams in the country like Harshad Mehta ((Articles.timesofindia.timesofindia.com/keyword/harshad-mehta))to 2G scam.

(a)Presumption in statutory offence which require mens rea :

 In statutory interpretation , certain presumption are taken into consideration  when by the court when interpreting the statutes.  Where there is a creation of any offence by the statute , no matter how precise the language maybe, it is taken to be understood that element of mens rea is imported in the definition of crime.

Roscoe Pond’s definition of statutory offence is that “such statutes are not meant to punish the vicious will but to put pressure on the thoughtlessness and inefficient to do their whole duty in the interest of public health or safety or morals ((Available at www.legalservicesindia.com/article/mens-rea-in-statutory-offence-831-1.html)).” The Bhopal gas tragedy brought in front of the world that the presumption of mens rea is not important but again in after Hobbs Case the courts couldn’t deny the aspect of favoring mens rea.

(b) Exception- Where mens rea is not necessary

This situation basically talks with reference to the absence of men rea for deciding a case.  There have been many cases with reference to this in India like for example in State of Maharashtra v M.H. George ((Available at Indiankanoon.org/doc/1564263))where the respondent had left for Zurich on November 27, 1962 and landed at Santa Cruz airport. He remained in plane and when he was searched it was found with gold which violated the section 8(1) of the Foreign Exchange Regulation Act, 1947 and the majority view was that there is no scope with regards to the invocation the rule of mens rea.

PRESENT STATUS QUO IN CRIMINAL LIABILITY

The mere error ((Available at Articles.timesofindia.indiatimes.com/2004-08-09/delhi/27150168_1_criminal-liability-error-doctor))of judgment which is committed by the doctor is not considered to be crime. This is the latest Supreme Court judgment of India Only when the error is rash that it turns to be fatal then in that case it would be regarded as a criminal liability. In criminal law something which has criminal intention attached to it then only it is considered to a crime but if the act is seen then it being fatal needs to be explained.

Aged society members are also held to be liable for criminal liability.  This was the latest judgment by the Bombay High Court with reference to the case where there was lapses ((Articles.timesofindia.indiatimes.com/2013-05-23/Mumbai/39474813_1_jolly-maker-i-justice-s-c-dharmadhikari-fire-safety-equipment))in maintain fire safety equipments.

CONCLUSION

Through this paper it can be concluded that both actus reus and mens rea are important when we further proceed with reference to the measuring the criminal liability of a person. In actus reus the deed is very important for act to make a person liable for crime while and is guided by three principles firstly the muscle contraction showing action, circumstances and the intensity of the hurt. When we talk with reference to mens rea then we have defined the three types but the end results same that intention is of prime value. In statutory offences we talk about the crime which harm the society and how the criminal liability is when mens rea is present in one while absent in another.

Distinction between Crime & other wrongs – at Common Law

Tanya Agarwal, Research Associate

Penal law of ancient communities is not the law of crimes: it is the law of wrongs. The person injured proceeds against the wrongdoer by an ordinary civil action and recovers compensation in the shape of money damages, if he succeeds. – Sir Henry Maine

In early law there was no distinction between criminal and civil wrongs. The two had been called a vicious intermixture ((Sir Federick Pollock and FW Maitland, The History of English law before the time of Edward I, vol II, second edition, 1911, p 465)). However an attempt was made by Scholars like Jeremy Bentham, Sir William Blackstone, and John Austin to distinguish ‘crime’ from ‘civil’ wrong. Accordingly, ‘private wrong’ affecting the civil rights of individuals was perceived as a ‘civil wrong’ whereas a ‘public wrong’ or breach and violation of public rights and duties owed to the whole community crime was termed as ‘crime’ ((Sir William Blackstone  Commentaries on the Laws of England,[ 17th edn. University of Chicago Press 1830].)). On this basis, notion of private wrong can be extended to encompass not only torts but also other kinds of civil laws such as contracts, which is also concerned with wrongs, also not to the whole community at large, but to individuals (groups of individuals or legal persons) qua contractual parties ((John Gardner, “Torts and Other Wrongs”, Florida State University Law Review 39 (2011): pp. 43-64 at p. 46)).

Distinction between Crime and Tort- Is it a Functional or/and Structural?

‘Tort law prices, while criminal law prohibits ((‘Does “Unlawful” Mean “Criminal”?: Reflections on the Disappearing Tort/Crime Distinction in American Law’ (1991) 71 Boston ULR 193.)).’

At early common law, a victim could pursue justice for the same wrongful act either through a forerunner of criminal law or through a forerunner of tort law ((David J. Seipp, The Distinction Between Crime and Tort in the Early Common Law, 76 B.U.L.REV. 59, 59 (1996).)). However, the objectives of the criminal law and law of tort are essentially disparate. Criminal law is public, punitive law, which exists to maintain security through the control of certain forms of behaviour ((Williams, ‘The Definition of Crime’ (1955) CLP 107.)). The law of tort, on the other hand, is concerned with the identification of personal rights and the award of remedies to vindicate those rights. This has been recognized by Lord Scott in Ashley v Chief Constable of Sussex Police (([2008] UKHL 25, [2008] AC 962, at [17]. See also Lord Carswell, at [76].))as:

‘this plea for consistency between the criminal law and the civil law lacks cogency for the ends to be served by the two systems are very different. One of the main functions of the criminal law is to identify, and provide punitive sanctions for, behaviour that is categorised as criminal because it is damaging to the good order of society… The function of the civil law of tort is different. Its main function is to identify and protect the right that every person is entitled to assert against, and require to be respected by, others. The rights of one person, however, often run counter to the rights of others and the civil law, in particular the law of tort, must then strike a balance between the conflicting rights.’

The distinction between crime and tort law is not only restricted to functional sense. The structure and nature of legal proceedings in criminal and tort law are quite dissimilar.

Firstly, the state prosecutes violations of criminal law. A victim’s consent is neither necessary nor sufficient for a prosecution to be brought. In tort law, by contrast, the victim decides whether to bring a tort claim and is free to choose not to do so ((John C.P. Goldberg & Benjamin C. Zipursky, Accidents of the Great Society, 64 MD. L.REV. 364, 402-03 (2005); Benjamin C. Zipursky, Civil Recourse, Not Corrective Justice, 91 GEO. L.J. 695 (2003).)). Secondly, tort law typically requires harm as a prerequisite to a remedy. By contrast, tort law mainly provides a remedy for harmful acts, not for acts that create risks of future harm, and not for acts that are considered immoral but not harmful ((Id at 3)).

Tort and criminal law may be further distinguished in terms of standard or burden of proof. In tort law, the plaintiff’s case must be affirmed by a preponderance of evidence, i.e. the plaintiff must persuade the judge or jury that his or her version of the facts is more likely than not and that he or she is entitled to judgment. This degree of proof is sometimes called presenting a prima facie case, or “crossing the 51 percent line”, because the plaintiff must out prove the defendant by more than half the evidence ((In some cases, such as those involving misrepresentation, fraud, intentional infliction of emotional distress, and probate contests, the plaintiff must prove his or her case by clear and convincing evidence, which is a higher standard and more difficult to meet that a mere preponderance)). By contrast, in criminal law the prosecutor must prove the case is beyond a reasonable doubt meaning that the judge or jury must believe the defendant’s guilt without significant reservations. This burden of proof is much more difficult than either of the proof levels required in tort cases.

Lastly, criminal law is statutory. The doctrine of common-law crimes is largely defunct. By contrast, tort law remains mainly a set of common-law, judge-made doctrines (although the statutory overlay is increasing). Apart from this, there are certain conducts that cause same kind of harm as a criminal act, but nevertheless, does not receive criminal punishment. That is, certain torts and contract breaches only receive monetary damages while the equivalent crime, causing the same harm, receives criminal punishment.

Conclusion

In spite the dissimilarities discussed in this article it won’t be appropriate to say that tort law and crime are mutually exclusive. However, certain conduct creates both tort and criminal liability ((Nathan Isaac Combs, Civil Aiding and Abetting Liability, 58 VAND.L.REV. 241, 250 (2005).)). For instance, the act of taking someone’s property would constitute theft, a crime, and conversion, a tort breach ((Thomas Colby, Clearing the Smoke From Phillip Morris v.Williams: The Past, Present, and Future of Punitive Damages, 118 YALE L.J. 392, 424 (2008).)). Apart from this, there are some instances in which people have brought civil claims in an effort to encourage prosecutions in criminal law. For example, the family of a woman who was killed by her former boyfriend succeeded in having him branded as a killer in a successful civil claim for assault and battery heard in the High Court in 1998. The Crown Prosecution Service had decided not to prosecute ((Francisco v Diedrich (1998) The Times, 13 April)).

To enquire whether an act is a crime or a tort in Sir James Stephen’s opinion is no wiser than it would be to ask of a man “Is he a father or a son? For he may be both”.  However it’s obvious that we cannot make a sweeping generalization that ‘universally every crime is a civil injury’. We should bear in mind that torts and crimes are complementary to each other and they cannot be detached from each other because the same act can be viewed from different perspectives.

The web of the law should, be conceptually seamless and a unified institution which works in essential harmony. But that harmony can tolerate difference; it is ‘intolerable fissures’ which are unacceptable ((Hall v Hebert (1993) 101 DLR (4th) 129, 165, citing Weinrib (1976) 26 UTLJ 28, 42)).