Liabilities in Criminal Law

Definitions of Liabilities 

According to Markby,

“the word 'liability' is used to describe the condition of a person who must has to perform whether that duty is a primary or secondary or sanctioning one”.^[1]

According to Sir John Salmond,

“Liability or responsibility is the bond of necessity that exists between the wrongdoer and the remedy of the wrong. This vinculum Juris is not one of mere duty or obligation; it pertains not to the sphere of ought but to that of must”.^[2]

Austin prefers to use the term 'imputability' to 'liability'. According to him,

“Those 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”.^[3]  

Liability is one of the important aspects of regulating society. In the article “What is Crime?”  we referred to the theories of Hobbes, Locke, and Rousseau that describe one of the reasons for the formation of the state to be reduction/removal of crime from society. To implement this duty, the state has imposed various liabilities on the offender/wrong-doer. Violation of laws formulated by the state or by the judiciary through precedents will result in liability. Where there is a wrong there is a liability. Crimes are wrongs affecting the society at large for which liability is the result imposed by the state. Liability can be measured by the intention or knowledge of the offender.

1.  Vicarious Liability

According to Salmond, “In general, a person is responsible for his own acts, but there are exceptional cases in which the law imposes on him vicarious responsibility for the acts done by others, however blameless himself.”^[4]

According to Black’s Law Dictionary, the adjective ‘vicarious’ is defined as “performed or suffered by one person as a substitute for another” i.e. an indirect performance or a surrogate action.

Vicarious liability is generally known in law or torts and criminal law where a supervisory party (such as an employer/principal/master) has to bear for the actions or the conduct of their subordinate or associate (such as an employee/agent/servant) based on the duty of the supervisory and subordinate party and on the relationship between the two parties.

For example, a master would be liable for a servant’s action if the criminal act done was under the course of duty of the servant and not for actions that the servant commits outside the purview of duties authorised to him. If a servant was told to drive a car at a speed of 120 Km/hr on a highway which leads to an accident, though the master was not driving the car herself, she would be held liable.

Why is vicarious liability is imposed? (General Law)

1.     The first reason is that an act committed by the servant is considered to be done by the master herself provided that the action was under the course of duty of the servant and was done with the permission of the master. For example, if a driver was driving the car on a Sunday when he was given a holiday and therefore was not authorised to drive the car shall himself be liable for the accident caused due to over speeding. But if he was doing it on a weekday when was asked by the master to do so, the master will be considered to commit the act indirectly through her servant.

2.     Since the master has appointed the servant to perform a certain task on his behalf then it is the duty of the master to take all the reasonable care and precaution to avoid any mishappenings in society. Therefore, if the master fails to appoint such a conscious person, he would be liable for the actions of his servant appointed by him.

3.     It is crucial to understand that for any act done by the servant the master enjoy its results or fruits. Since it is the master who would enjoy the fruits due to the completion of the task given to the servant, it should be the master who should be held liable for the apprehensions caused by the servant.

Similarly, the Principal or owner or employer is liable for any act committed by his agent or independent contractor or an employee during the course of employment.

Vicarious liability is a legal theory of liability that is based on “respondent superior” principles that are concerned with distributing loss caused by the tortious acts. Under this doctrine, individuals can be made vicariously liable for wrongful acts committed by someone because they helped in furtherance of a crime in some way like abetting or aiding criminal activities.

For instance, if a robbery in a jewellery store had a driver who even though did not participate in the actual commission of the crime but was helping in the completion of the task shall be held vicariously liable as well as jointly liable. The essence of vicarious liability in criminal law can be simply understood as when a crime has committed a person can be held liable as the principal offender i.e. the perpetrator of the crime whose act was committed by someone else. It is believed that a person committing an offence merely on the saying of the other would not be innocent and thus should also be held liable.

Unlike in the law of torts, in criminal law, a master is not always held vicariously liable for the actions of his servants or agents on the principle of respondent superior. This is to state that in criminal law it is necessary that the person who has committed the crime should only be held liable.[5] However, IPC, 1860 makes a departure from the general rule in a few cases, on the principle of respondent superior.[6] In such a case a master is held criminally liable under sections 154 to 156 of the IPC for acts committed by his agents or servants.[7]

2.  Strict Liability

A wrong-doer is responsible for his actions but there are certain exceptions to this rule that includes a man being liable for wrongful intent or negligence. This is known as wrongs of strict liability.

According to Black’s Law Dictionary, “Strict Liability does not depend on actual negligence or intent to harm, but that is based on the breach of an absolute duty to make something safe.”

One of the essential element of crime i.e. Mens Rea is applied to all criminal offences except a few. In these exceptions, though there is no mens rea involved the law provides for a liability of the offender for his criminal act, altogether independent of any criminal intention or wrongful state of mind or culpable negligence.[8] Such offences are considered as offences of strict liability or absolute liability.

A criminal act that does not require a guilty mind can be divided under 3 categories:

1.     First, acts that are not criminal in its actual sense, but are considered as quasi-criminal acts and are prohibited in the interest of the public. For example, social and economic offences like that relating to drugs and food or weights and measures, breaking of traffic rules, growing of weed, etc.

2.     Second, cases of public nuisance, libel, and contempt of court, etc.

3.     Third, cases in which, although the proceeding is criminal, it is a mode of enforcing a civil right, for example, cases of violations of municipal laws and regulations, etc.[9]

“The doctrine of strict liability is a departure from the common law principle of actus non facit reum, nisi mens sit rea and is, therefore, vehemently criticised. The jurists have gone to the extent of saying that strict liability offences are not criminal offences. Professor Jerome Hall has preferred to call strict liability offences as offences relating to “economic law” or “administrative regulations”, instead of penal offences.”[10]

What is important to evaluate is the intensity of the crime, strict liability offences though do not consider mens rea but are important for the social welfare. Considering the fact that these acts might be harmful to the offender itself and in such cases the state has to protect its most important asset i.e. Human. And this is the reason why strict liability is considered for certain acts which though might not involve mens rea but may harm people in the long run or intensively in a shorter phase. For example, food or drug crimes are there to help the people and their health, since people are the basis of any state it is important to protect the health of the living. 

Important: The statutory offences that do not include mens rea shall not be subject to strict liability on the ground that such laws are enacted by the state itself and are there to in fact preserve the social and economic interest of the society. Therefore, strict adherence to such laws is necessary and the liability for non-performance is also necessary.

3. Absolute Liability

The rule of absolute liability is similar to the rule of strict liability with certain amendments. Absolute liability applies to every act without any limitation or exception and held the individual liable for any fault. This rule of Absolute liability was accepted by the Supreme Court in the case of M.C. Mehta V UOI[11] and the very known Bhopal Gas Leak[12] case. In these cases, the SC maximised the limit of the rule of strict liability laid under Ryland V. Fletcher[13] also known as the rule of Ryland V. Fletcher.

The difference between Strict and Absolute liability rules was laid down by the Supreme Court in M.C. Mehta v. Union of India, which are as follows:

1.  Firstly, Absolute liability shall be imposed only on those industries that were involved in hazardous and inherently dangerous activities.

2.    Secondly, the actual escape of the dangerous product shall not be necessary i.e. any person hurt by the act of those industries outside or inside the premise can claim absolute liabilities.

3.     Thirdly, the rule of Absolute liability does not have any exception.

4.    Fourthly, the Rule of Ryland V Fletcher i.e. strict liability apply only to the non-natural use of land but the rule of absolute liability applies to even a natural use of land. If any harmful gas is the natural use of land and if it escapes then absolute liability should be imposed.

5.    Though the damages depend on the magnitude and financial capacity of the institute, there is an absolute liability of the damage to pay on the institute.

The Supreme Court in the case of MC Mehta held

"Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity is by far the more appropriate and binding."[14]

The scope of the Rule of Absolute Liability has widened to include not only public negligence or fault but even personal injuries caused due to the negligence of neighbour and also the non-occupier of the land.[15]

4. Joint Liability or Constructive Liability

According to Black’s Law Dictionary,

“Joint Liability may be apportioned either among two or more parties or to only one or a few select members of the group, at the adversary's discretion. Thus, each liable party is individually responsible for the entire obligation, but a paying party may have a right of contribution and indemnity from non-paying parties.”^[16]

A crime is an act that can be committed by an individual or more persons (S.11 of Indian Penal Code, 1860 defines persons as “any Company or Association or body of persons, whether incorporated or not”). An individual who commits the crime is held responsible in accordance with the nature of the crime and subject to defences if any. However, it might be difficult to decide the punishment if the criminal offence is committed by several persons in different capacities.

For example, a murder is committed by 6 people i.e. A, B, C, D, E, and F. A planned the murder and was not present at the crime scene physically, B pulled the victim by chains to the crime scene, C brought the car for their runaway and a knife and gave it to D, D blew the victim with various cuts which did not lead to his death, E threw a rock at the victims head which head to heavy blood loss and F finally took the knife from D’s hand and slit the victim's throat. In such cases, a distinction is drawn between the acts of each of such individuals according to their mode and degree of participation or involvement in the commission of the offence for ascertaining guilt and awarding punishment. Such persons may broadly be classified into principals and abettors.[17]

According to English law, criminals are classified into four categories on the basis of their participation in the act. These are:

1.  principal in the first degree, the actual perpetrator of the crime,

2.  principal in the second degree, the person who is present at the scene of occurrence assists and aids in the commission of a crime,

3.  accessory before the fact (commission of the crime) and

4.   accessory after the fact.[18]

A person who either actually commits the criminal act or aids the commission of the crime while being present at the crime scene, such a person is known as a principal. The principal is held liable as the actual perpetrator under the specific provisions of under joint, or constructive liability.

A person who directly or indirectly assists, aids, counsels, procures or encourages another to commit a crime is called an Abettor.[19] “Accessories before the fact or after the fact” is similar to that of abettors i.e. one who knows the fact that a crime was committed intentionally protects or gives shelter in order to help the culprit to escape the liability of his actions.[20]

However, under Indian law, there is no such distinction between the offenders as the law believes that there is no practical utility (after the commission of the crime) of such a classification since the punishment prescribed for all the categories of criminals is the same.[21]

In cases where one cannot apportion respective criminal guilt on the offenders, al the offenders are held jointly liable. This is based on the fact that the act of the abettors or the presence of the accomplice gives encouragement or support to the person who is actually committing the crime.[22] An important thing is that the participants shall be held liable equally since even though one person was actually committing the crime the intention of all the other participants was similar to that of the principal and he was doing the act on behalf of those participants also. 

The provisions related to joint liability have been elaborately dealt with in sections 34-38, 120A, 120B, 149, 396 and, 460 of the Indian Penal Code, 1860. These provisions may be classified into three categories:

1.   when the offence is committed with the common intention of the group (sections 34-38);

2.   when the accused is a member of a conspiracy to commit an offence (sections 120A, 120B); and

3.   when the offence is committed with the common object of an unlawful assembly (section 149).[23]

 

 

BY,

LAWVASTUTAH

---

^[1] SRD Notes, Definitions of Liabilities, https://www.srdlawnotes.com/2018/02/what-is-liability-and-what-are.html (Last Visited at 18th September 2020).

^[2]Glanville L. Williams ed., 10th ed. 1947.

^[3] Banshlochan Prasad, Jurisprudence of Liabilities, http://www.ngbu.edu.in/newsite/Ontuto/BALLB6SEM_Concept%20of%20Liabilities_Jurisprudence_banslochan.pdf (Last Visited at 18 September 2020).

[4]Vicarious Liability including State Liability, https://indianlegalsolution.com/vicarious-liability-including-state-liability/#:~:text=Vicarious%20Liability%20is%20also%20called,%2C%20however%2C%20blameless%20himself.%E2%80%9D (Last Visited at 18 September 2020).

[5]KD Gaur: Criminal Law-Cases and Materials, 9th ed.

[6]Gour Hari Singh, The Penal Law of India, vol II, 11th Edn, 2000, pp 1467-1472.

[7]KD Gaur: Criminal Law-Cases and Materials, 9th ed.

[8]See State of Maharashtra v Mayer Hans George, AIR 1965 SC 722: [1965] 1 SCR 123; Warner v Metropolitan Police Commr, [1968] 2 All ER 356; Indo-China Steam Navigation v Jasjit Singh (Collector of Customs), AIR 1964 SC 1140: [1964] 6 SCR 594.

[9]Sherras v De Rutzen, [1895] 1 QB 918, G Williams, Salmond on Jurisprudence, 11th Edn, 1957, pp 408-409; Smith and Hogan, Criminal Law, 5th Edn, 1983, pp 86-92; Halsbury’s Laws of England, 3rd Edn, pp 273-74; JLJ Edwards, Mens Rea in Statutory Offences, London: Macmillan, 1955, pp 84-110.

[10]KD Gaur: Criminal Law-Cases and Materials, 9th ed; See Jerome Hall, General Principles of Criminal Law, 2nd Edn, 1960, p 326; Mannheim, (1936) 18 JCL 90.

[11]1987 SCR (1) 819.

[12]AIR (1989)(1)SCC 674.

[13]1866 L.R. 1 Ex.256. 1868 L.R. 3 HL 330.

[14]1987 SCR (1) 819.

[15]J.N. Panday: Law of Torts.

[16]See solidary liability. [Cases: Contracts 181; Negligence 484; Torts 22. C.J.S. Contracts §§ 366, 371; Negligence §§ 154–156; Torts §§ 39–44.] joint liability. Liability shared by two or more parties. [Cases: Negligence 484; Torts 22. C.J.S. Negligence §§ 154–156; Torts §§ 39–44].

[17]KD Gaur: Criminal Law-Cases and Materials, 9th ed.

[18]Ibid.

[19]Ibid.

[20]See Indian Penal Code, 1860, sections 130, 136, 157, 201, 212, 216: See KD Gaur, A Textbook an Indian Penal Code, 3rd Edn, 2004, pp 159-174; Commentary under sections 107- 120, IPC, 1860.

[21]Ibid.

[22]Gour Hari Singh, The Penal Law of India, vol I, 11th Edn, 2000, pp 969-995. See VI ASIL, 1970, pp 480-82; VIII ASIL, 1972, pp 58-60.

[23]Ratanlal and Dhirajlal, The Law of Crimes, 24th Edn, 1997, pp 396-414.