MEASURE OF CIVIL AND CRIMINAL liability

Session 2015-2020

SUBJECT – jurisprudence-II

SUBMITTED BY :- SUBMITTED TO :-

Sumit kumar Dr. Manoranjan Kumar

ROLL. No. 1442 Assistant Professor of Law

B.B.A. LLB. (Hons.)

CHANAKYA NATIONAL LAW UNIVERSITY

MITHAPUR ,PATNA
 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.A. LL. B (Hons.) Project Report entitled
“MEASURE OF CIVIL AND CRIMINAL LIABILITY” submitted at CHANAKYA
NATIONAL LAW UNIVERSITY; PATNA is an authentic record of my work carried out
under the supervision of DR.MANORANJAN KUMAR I have not submittted this work
elsewhere for any other degree or diploma. I am fully responsible for the contents of my Project
Report.

(Signature of the Candidate)

SUMIT KUMAR

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

Date:
 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Dr. MANORANJAN

KUMAR as well as my institution CHANAKAYA NATIONAL LAW UNIVERSITY which
gave me the golden opportunity to do this wonderful project on the topic “MEASURE OF
CIVIL AND CRIMINAL LIABILITY”, which also helped me in doing a lot of Research and I
came to know about so many new things I am really thankful to them.

Secondly, I would also like to thank my parents and friends who helped me a lot in finalizing this
project within the limited time frame.

I would also like to extend my gratitude to my college librarian and all those unseen hands that
helped me out at every stage of my project.

Thank you,

Sumit Kumar

Roll no. – 1442 Semester -6th

 CONTENTS

DECLARATION BY THE CANDIDATE................................................................................................... 2

ACKNOWLEDGEMENT ............................................................................................................................ 3
INTRODUCTION ........................................................................................................................................ 5
THEORIES OF LIABILITY ........................................................................................................................ 7
THE MEASURE OF CRIMINAL LIABILTY .......................................................................................... 17
THE MEASURE OF CIVIL LIABILITY .................................................................................................. 18
CONCLUSION ........................................................................................................................................... 19
BIBLIOGRAPHY ....................................................................................................................................... 20
 INTRODUCTION

Liability, as defined by SALMOND, is the bond of necessity that exists between the wrongdoer
and the remedy of the wrong1 has more often been said to have arisen out of contract or delict.
Roman lawyers seem to have had some similar notion, and they tried to squeeze all liability
under those two expressions by adding to each class a number of things which did not properly
holding to it, which they called “quasi-contract” and “quasi-delict"2. Very likely the Roman law
had some good practical reason for so doing. According to MARKBY : “the word liability is
used to describe the condition of a person who has a duty to perform ". According to AUSTIN,
liability consists in those things which a wrongdoer must do or suffer. It is the ultimatum of law
and has its source in the supreme will of the state. Liability rises from a breach of duty which
may be in the form of an act or omission. AUSTIN prefers to call liability as "imputability". To
quote him, “these certain forbearances, commissions or acts, together with such of their
consequences as it was the purpose of the duties to avert are imputable to the persons who have
forborne, omitted or acted. Or the plight or predicament of the persons who have forborne,
omitted or acts is styled imputability”. It is thus evident that liability arises from a wrong or the
breach of a duty in law. This also has felt the impact of new jurisprudence.3

KINDS OF LIABILITY

Liabilities can be of many kinds. There are civil and criminal liability, remedial and penal
liability, vicarious liability and absolute or strict liability.

CIVIL LIABILITY AND CRIMINAL LIABILITY

Civil liability is the enforcement of the right of the plaintiff against tire defendant in civil
proceedings. Criminal liability is the liability to be punished in criminal proceeding. A civil
liability gives arise to civil proceedings whose purpose is the enforcement of certain rights

1
SALMOND : Jurisprudence (12th Ed.) P.349
2
MARKBY : Op.eit. PP 293-294
3
P.B.Mukherji, The new jurisprudence, P.I3.
claimed by the plaintiff against the defendant. Examples of civil proceedings are an action for
recovery of a debt, restoration of property, the specific performance of a contract, recovery of
damages, the issuing of an injunction against the threatened injury, etc. It is possible that the
same wrong may give rise to both civil and criminal proceedings. This is so in cases of assault,
defamation, theft and malicious injury to property. In such cases, the criminal proceeding are not
alternative proceedings but concurrent proceedings. Those are independent of the proceedings.
The wrongdoer may be punished by imprisonment. He may be ordered to pay compensation to
the injured party. The outcome of proceedings in civil and criminal liability is generally
different. In the case of civil proceedings, the remedy is in the form of damages, a judgment for
the payment of debt, an injunction specific performance, delivery of possession or property, a
decree of divorce, etc. The redress for criminal liability is in the form of punishment which may
be in the form of imprisonment, fine or death. In certain cases, the remedy for both civil and
criminal liability may be the same, viz. the payment of money. In certain cases, imprisonment
may be awarded for both civil and criminal liability. Even in a child case, if a party dares to defy
an injunction, he can be imprisoned. Civil liability is measured by the magnitude of the wrong
done but while measuring criminal liability we take into consideration the motive, intention,
character of the offender and the magnitude of the offence.
 THEORIES OF LIABILITY

THEORY OF REMEDIAL AND PENAL LIABILITY

Civil and criminal liability cannot be treated as identical with that between remedial and penal.
For the distinction has been made on the notion of the legal consequences of the action against
the wrong. Thus where after a successful proceeding the defendant is ordered to pay
compensation for damages, or to pay a debt or to make a specific performance of a contract, the
liability" may be known a remedial, but where it after a successful proceeding the wrongdoer is
awarded punishment, which may be the fine, imprisonment etc. it may be called penal liability.
Though civil liability may generally be remedial and the criminal penal, the argument is not
always true, because in some cases liability may be both remedial and penal. So also is true of
criminal liability, though in exceptional cases.4

Remedial Liability: In so far as remedial liability.is concerned it is founded on the well-known

maxim - “ubi jus ubi remedium” which means, where there is right, there is remedy. Thus where
the law creates or imposes duty, it also enforces its specific performance. For every breach of
duty, there is a remedy in the law. But there are certain exceptions where the duty is not
specifically enforced.

Duties of imperfect obligation: In the first place, there are duties of imperfect obligation. A
time-barred debt is an example of it.

Duties which by Nature are Incapable of Specific Performance: Another exception of the rule are
duties of such a nature, which once broken cannot be specifically enforced, for example, in an
act done the defendant cannot be made to refrain from it. In other words, once a mischief has
been done, it cannot be undone. In such case damages are perhaps the only adequate remedy.

Where Specific Performance is Inexpedient or Inadvisable: In the third place, there are cases
where thought eh specific performance of duty is plausible, the law does not enforce its specific
performance but rather awards damages to the plaintiff.

4
Mahajan, V.D., Jurisprudence and Legal Theory, EBC Publication, 5th edition, pg. 366.
In other words, “ubijus ibi" remedium - which means where there is right there must be a
remedy.

Penal Liability

The basic principle underlying penal liability is contained in the maxim - "actus non facit reum,
nisi mens sit rea ” which means that act alone does not amount to crime, unless it is accompanied
by guilty mind. Therefore, two elements i.e

i) act; and ii) guilty mind

are essential to constitute a crime. No person can be punished merely because his act resulted
into some crime unless it was accompanied by “Mens Rea” or guilty mind. Conversely, mere
presence of “mens rea" shall not constitute a crime unless it is accompanied by some act. Thus
"act ” is he physical element of the crime and “mens rea ” is the mental element.

ACT

SALMOND defines act as “any event which is subject to the control of human will”. AUSTIN
defines act as a "movement of the will. It is the bodily movement caused by volition — a volition
being a desire for bodily movement which is immediately followed by such movement provided
the bodily members is in a normal condition”.

An act consists of three stages:

a) Its origin in some mental or Bodily activity or passively ofthe doer

b) Its circumstances, and

c) Its consequences.

It is significant to note that for the purposes of penal liability the "act” also includes within it
“omission An omission consists in not performing an act which is expected of a man because he
normally does it or because he ought to do it. Thus, omissions in our liability where there is a
duty to act.

1) It may be positive or negative, i.e. doing something or omitting to do something.

2) Internal or external i.e. acts of mind or act of body.

3) Intentional or unintentional: an act is intentional when it is foreseen and desired

by the doer.

KINDS OF ACTS

The various kinds of acts are:-

1 Voluntary and Involuntary Acts: If the act is willed, i.e. deliberate, it is a voluntary act.
Involuntary act, on the other hand, is not willed this is, absence of will makes the act involuntary.

2 Intentional and Unintentional Acts When an act is desired and foreseen by the doer, it is called
an intentional act but when it was not willed towards the actual result and cannot be said to be its
consequence, it is called unintentional.

3 Internal and External Acts Internal acts are the acts of mind while external acts are the acts of
body. Every external act is precedent by an internal act, but every internal act need not
necessarily be followed by an external act.

WRONGFUL ACTS

Every wrong is an act which is mischievous in the eyes of law, that is, an act to which the law
attributes harmful consequences. In other words, wrongful acts from the point of view of their
consequences can be placed in the following two categories:-

1) Those which are actionable without the proof of actual damages, e.g. trespass, libel, etc. which
are actionable “per se”.
2) Those which are not actionable without the proof of actual damages e.g. malicious
prosecution, deceit, breach of contract, etc.

DAMNUM SINE INJURIA: All wrongs are mischievous in the eyes of law but the converse is
not true. There may be cases in which damage is caused knowingly and willfully but the law will
not hold the wrongdoer accountable for it.

INJURIA SINE DAMNO: “Injuria sine damno" - literally it means injury without damages and
is limited to those kinds of breach of law which consists in the violations of another’s private
rights.

CAUSATION: In law, a man is held liable either for doing acts which are mischievous or for
causing actual injury to the plaintiff. Causation, therefore, is an important concept for
determining liability in law. The leading case on causation is relation to civil liability is “in Re
Polemis5 ” wherein the defendant’s servant carelessly dropped a plank into the ship’s hold; the
plank struck a spark which ignited petrol vapor whose presence in the hold was unsuspected. The
defendants were, however, held liable for damages caused to the ship. But this decision has been
overruled by the Privy Council in Wagon Mound6 case and now forcibility of consequences is
the test for determining causation and liability.

MENS REA

It refers to the mental element necessary for the particular crime and the mental element may
either be intention to do the act or recklessness “or negligence ” as to consequences of that act.
Thus wrongs incurring penal liability are of three kinds considered from the point of view of
mens rea. 1) International or willful wrongs; 2) Wrongs of negligence; 3) Wrongs of strict
liability which are independent of mens rea.

5
1921) 3 KB 560
6
(1961) AC 388
EXCEPTIONS TO THE DOCTRINE OF MENS REA

Besides the fact that the importance of doctrine of mens rea has receded in modern times, there
are certain special circumstances which the law imposes strict liability. They are exceptions to
the doctrine of mens rea. These exceptions are:

a) Where the law imposes strict liability the requirement of mens rea is dispensed with. For
instance, the statues relating to matters concerning public health, food, drugs, public
safety and social welfare measures impose strict liability and the presence or absence of
mens red is irrelevant in such cases. Likewise, the motor vehicle act, licensing
legislations, etc. are covered under absolute liability rule and presence of guilty mind is
not a relevant factor to decide the guilty of the accused in these cases.
b) In cases where it is difficult to prove mens rea and the penalties are petty fines, the
expediency demands that dispensation of the requirement of mens rea would facilitate
speedy disposal of trials. The accused can be fined even without the proof of mens rea
c) It is not necessary to take mens rea into consideration in deciding cases relating to public
nuisance. It is so in the interests of public safety.
d) Mens rea is unnecessary in those cases which are criminal in form but in fact they are
only summary mode of enforcing a civil right.
e) Mens rea is not relevant in cases in which the plea of ignorance of law is raised in
defence. In such cases the fact that the offender was not aware of the rule of law and that
he did not intend to violate it, is no defence and he shall be liable as if he knew the law.

TRANSFERRED MALICE

Though there is a principle of criminal law that no act is intended unless all the three aspects of
the act, namely: 1) Physical doing, 2) Circumstances, and 3) Consequences are present, there is
an exception to this rule. This exception is covered under what is known as the doctrine of
transferred malice. It is also sometimes called as “transmigration of malice”.
DIFFERENT STAGES IN THE COMMISSION OF CRIME

There are four stages in the commission of every offence. They are: 1) Intention to commit
"intention & motive ” 2) Preparation; 3) Criminal attempt; and 4) Commission of the offence.

Intention & Motive:

Mere intention or will to commit does not constitute an offence if it is not followed by an
external act. Every act of an individual can be analyzed in two stages, namely, i) The ultimate
purpose of it and ii) The immediate intention of doing it. The former is called the motive which
is different from intention of committing an offence. An intention is the design with which an
act is done to bring about the desired consequences. The ultimate object or purpose which
includes a person to do an act is called the motive.

JUS NECESSITATIS

It is generally said that an act which is intentionally done might not be wrongful if it done under
compulsion of dire necessity. The proverb “necessity knows no law' ” fully justifies this
contention.

INTENTION AND KNOWLEDGE DISTINGUISHED

Where a consequence is expected, it is usually intended but this is not always true. To make yet
another example, a military commander orders his troops into action, knowing fully well that
many of them will lose their lives, but he certainly does not intend the deaths to be caused
instead he intends to defend his country. In other words, he has knowledge that loss of lives is
probable but he certainly does not intend the lives to be lost.

Preparation

Preparation consists of devising means for the commission of an offence. The Indian penal code
does not provide any punishment for acts done in the mere stage of preparation. There are,
however, two exceptions when more preparation is also an offence punishable under the criminal
law. Section 122 of IPC provides preparation of wage war against the state is an offence. The
second exception is preparation to commit dacoity which is an offence punishable under section-
399 IPC.

CriminalAttempt

An attempt to commit a crime is itself an offence under Section-511 of the Indian penal code. A
criminal attempt means making a headway towards the commission of a crime after the
preparation is made. An attempt is punishable even though the intended offence is not
completed.

Commission of Crime

This is the last and final stage in the commission of a crime and it is punishable under the
criminal law of the land.

NEGLIGENCE

Jurists have defined “negligence” in different ways. SALMOND observed that negligence is
capable carelessness. To quote him: "negligence is the state of mind of undue indifference
towards one's conduct and its consequences". Negligence can consist either "in faciendo" or “in
non faciendo", being either nonperformance or inadequate performance of a legal duty.

Negligence is oftwo kinds:

a) Advertent negligence and b) inadvertent negligence.

Advertent negligence
It is called willful negligence or recklessness also. In this negligence the harm done is
foreseen as possible or probable, but it is not willed. For example, a person who drives
furiously in a crowded street and causes injury or harm to persons commits it by adverent
negligence.
 Inadvertent Negligence or Simple Negligence
The negligence which is a result of ignorance, thoughtlessness or forgetfulness is
inadvertent negligence. In such negligence the harm caused is neither foreseen nor willful.
For example, a doctor who treats a patient in property though negligence, as forgetfulness is
guilty of inadvertent negligence.

THEORIES OF NEGLIGENCE7

Subjective Theory of negligence

The exponents of the subjective theory maintain that negligence is a state of mind.
According to them, negligence consists in the mental attitude of undue indifference with
respect to one’s conduct and its consequence. The subjective theory is given by SALMOND.
His view is that negligence is culpable carelessness. Recklessness, on the other hand is a
condition of mind where the doer foresees the consequences but does not care whether they
result from his act or not.

Objective Theory of Negligence

According to this theory negligence is not a condition of mind but a particular kind of
conduct which is to be judged objectively. This theory is supported by FREDREIC
POLLOCK. It is the breach of duty to take care which a reasonable person under those
circumstances would take. The tort of negligence is based on objective approach to the
conduct and its consequences.

WRONG OF STRICT LIABILITY

Generally a man is held liable for the negligence which results into harm of violation of
rights of others. But there are certain exceptions to this general principle of liability.
SALMOND has grouped cases of strict liability under the following three heads:-

7
Aggarwal,N. “Jurisprudence (legal theory)”, CLA Publication, 2nd edition.
 Mistake of Law : An act done under the mistake of law is not said to be an intention act
because the doer of it does not know that what he is doing prohibited by law. Ignorance of
law is no excuse in almost all the legal systems. This is expressed in the maxim, “ignorantia
juris meminem excusat 'ignorance of law is no excuse’”.

Mistake of Fact: It is generally said that mistake of fact is a good defence in law of crimes.
But in English and Indian law mistake of fact is not a defence in law of torts, i.e. civil
wrongs. He who interferes with the right of another shall not be allowed to say that he
believed in good faith and on reasonable grounds in the existence of c some circumstances
which justified his act. In other words mistake is a valid defence against a wrongful act. But
this principle applied only in case of a criminal wrong and not a civil wrong.

Inevitable Accident: Inevitable accident is commonly recognized as a ground of exemption

from liability both in civil and criminal law. Accident may either be culpable or inevitable.
It' is culpable when caused due to negligence but inevitable when the avoidance of it would
have required a degree of care exceeding the standard demanded by law.

VICARIOUS LIABILITY

In criminal law the general principle is that a person is not liable for the act of another. A
master is not criminally liability for the unauthorized acts of his servant. However, there are
certain exceptions to this rule. The legislature may prohibit an act or enforce a duty in such
terms as to make the prohibitions or the duty absolute; in that case die principle is liable if
the act is in fact done by his servant. Thus a statue may impose criminal liability upon the
master as regards tire acts or the omissions of his servants. A master or owner is liable in
case of public nuisance done by his agent. Similarly, if a principal neglects the performance
of an act, “which is likely to cause danger to other, and entrusts it to unskillful hands, he will
be in certain cases criminally liable”.8

8
Indian Penal Code, 1860, Sections—154 and 155
Vicarious liability exists mainly in civil law. It is recognized in civil law generally in two
kinds of cases. 1) A master is liable for all tortuous acts of his servants done in the course of
his employment. 2) The representatives of the dead person are, in certain cases, liable for the
acts of the deceased. As pointed out earlier, there is no vicarious liability in criminal law, so
the representatives of a dead man are not liable for the criminal acts done by him before his
death. So far as the civil liabilities of the deceased are concerned most of them are
transferred upon his representatives.
THE MEASURE OF CRIMINAL LIABILTY

The measure of the criminal liability is different in different legal systems. The same conduct
may trigger both civil and criminal liability.9 Therefore, the factors which are taken into
consideration in determining the liability are the following. 1) Motive for the commission of the
offence. 2) The magnitude of the offence 3) the character of the offender.

1. Motive for the Commission of the Offence: The motive of the offence is a very important
factor in determining the liability. If the motive to commit the offence is very strong, the
punishment would be severe, because the punishment aims at counteracting the motives
which made the offender to commit the crime.
2. The Magnitude of the Offence: The other things being equal, if an offence brings greater
evil consequences or has greater evil tendencies the punishment should be severe. Some
criticize this view and say that the liability should not be determined on the basis of the
evil caused to a person, but it should be determined on the basis of the benefit derived by
the offender by his wrongful act. It is submitted that the punishment on the basis of the
magnitude of the offence greatly helps in preventing offences, and where the offender is
to choose one wrongful act out of many of the same nature, he would prefer to commit
one for which there is lesser punishment. Thus the severe punishment for grave offences
deters the wrongdoer from committing it.
3. The Character of the Offender: The character of the offender is also a factor in the
measure liability, in other words, it is a consideration in determining the punishment. The
offenders who have become habitual and have undergone punishment, to them
punishment loses much of its rigor and light punishment does not deter them. Therefore,
they are given severe punishments.

SOME OTHER FACTORS

There are some other factors also which are taken into consideration in determining the
punishment. One such factor is the nature of the offence.

9
https://lawshelf.com/courseware/entry/civil-and-criminal-liability, accessed on 17th Apr’18.
 THE MEASURE OF CIVIL LIABILITY

In the case of a civil wrong, motive is irrelevant. It is only the magnitude of the offence that
determines the liability. The liability of the offender is not measured by the consequences which
he meant to ensure, but by the evil which he succeeded in doing. The liability consists of the
compulsory compensation to given to the injured person. The purpose of civil liability is
compensation to the injured parts. The quantum of damages is, however, dependent on the actual
loss suffered by the plaintiff. It must be noted that neither the character nor motive of the
defendant are relevant in determining he liability in civil cases. Law takes into consideration
only the actual consequences that follow a wrongful act and not the probable or intended ones.
However, in certain cases higher damages may be awarded where defendant’s conduct has
aggravated the plaintiff’s sufferings. Civil liability gives a person rights to obtain redress from
another person e.g. the ability to sue for damages for personal injury.10

10
http://www.rsc.org/images/2_Difference_tcm18-17644.pdf, visited on 17th Apr’18.
 CONCLUSION

In the end the researcher would like to conclude that both criminal and civil liability operate
within their own sphere and there is considerable difference between the measure of criminal
liability and the measure of civil liability. The factors which are taken into consideration in
determining the liability are the following. 1) Motive for the commission of the offence. 2) The
magnitude of the offence 3) the character of the offender. Whereas while determining the
measure of civil liability, motive is irrelevant. It is only the magnitude of the offence that
determines the liability. The liability of the offender is not measured by the consequences which
he meant to ensure, but by the evil which he succeeded in doing. Both also vary in their
procedures.
 BIBLIOGRAPHY

BOOKS

 Mahajan, V.D, Jurisprudence and Legal Theory, 5th edition.

 Aggarwal, Nomita. Jurisprudence (legal theory), 2nd edition.
 Indian Penal Code, 1860

WEBSITES

 http://www.lawyersclubindia.com/articles/Mental-Elements-Essentially-in-Tort-5116.asp
 https://lawshelf.com/courseware/entry/civil-and-criminal-liability
 http://www.rsc.org/images/2_Difference_tcm18-17644.pdf