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,, (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).)).”