CONCEPT OF LIABILITY

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2 873 CONCEPT OF LIABILITY THE NATURE OF LIABILITY In civilized societies most of the relation between the individual and the state are governed by rules made or recognized by the state; that is, law. Law lays down the rights and duties of the individuals. In other words, it prescribes what one is to do and what one is not to do and what one is entitled to get "it done. A branch of these rules is called wrong. When a person has committed a wrong, he is said to be liable. Thus, liability is the condition of the person who has committed a wrong. Liability or responsibility results from a wrong of breach of duty. It is something which a person must do or suffer on account of his failure to do what he ought to have done "duty. A person has a choice in fulfilling his duty, but liability arises independently of one s choice. Liability is the "vinculum juris, i.e. the bond of legal necessity that exists between the wrongdoer and the remedy of the wrong. Liability differs from obligation in as much as the latter refers to what a person ought to do on account of some duty cast upon him but the former refers to something which the person must do or suffer because he has already failed to do. One of the traditional fields of orthodox jurisprudence is liability. This also ahs felt the impact of new jurisprudence1. 1 P.B.Mukherji, The new jurisprudence, P.I3

3 874 The term liability, which occupied a place of pride in the hierarchy of the legal concepts has in English law been used to express three things. 1) It has been used to express the position of person who has undertaken to do or to abstain from doing something by contract with another person. 2) The term has been used to express the condition of person who has failed in the performance of source duty, and who is consequently, called upon to make compensation to some person who has suffered damage thereby. 3) The term liability has been used to express the condition of a person who has not failed in the performance of any duty, but who has done an act which has caused damage to another for which he is required to make compensation1. The duty to fulfill a contract and the duty to make compensation for damage caused by an act which is not a breach of duty are primary duties, whereas duty to make compensation for damage caused by a breach of duty is a secondary one. Liability ex-conlracto which is liability to a primary duty and liability ex-delicto, which is liability to a secondary duty have long since been recognized as two subdivisions of the same class. DEFINITION OF LIABILITY Liability, as defined by SALMOND, is the bond of necessity that exists between the wrongdoer and the remedy of the wrong2 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-delicit"3. Very likely the Roman law had some good practical reason for so doing. 1 MARKBY, Elements of Law (3rd Ed. 1885) P SALMOND : Jurisprudenc (12th Ed.) P.349 MARKBY : Op.eit. PP

4 875 English lawyers seem to have kept up the distinction between contract and delict chiefly because of the rule which one existed as to the joinder of actions; an important branch of that rule being that causes of action arising on a breach of contract could not be joined with causes of action arising on a delicit1. But there is a good deal of liability which is never considered as arising out of either the one or the other, for instance, the liability of trustees or the liability of a person who has used a ferry to pay the toll. Of course, it would be possible to extend the word "delict" so as to cover any breaches of duty, but this extension has rarely been made. By delicts" only certain classes of breaches of duty are intended. English lawyers often called them torts. According to MARKY : 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 o duty which may be in the form of an act or omission. AUSTIN prefers to call liability as "imputability". To quote him, these certain forbearnaces, 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. Liability is in the first place either civil or criminal and in the second place either remedial or penal. In the case of criminal/ penal liability the purpose of the law, direct or ulterior, is or includes the punishment of a wrongdoer while in the case of remedial liability the law has no such purpose at all; its sole intent being the enforcement of the plaintiffs right, the idea of punishment being wholly irrelevant. The liability of a 1 Some peculiar expressions in English law, such as, a tort founded on a contract, or a tort flowing from a contract, were perhaps invented to get rid ot the objection of misjoinder. The only questions now affected by the considerations of whether a claim is founded on a contract or on a tort seem to be the amount of costs ot be allowed in an action and the jurisdiction of country courts, see, Campbell on Negligence, 2nd Edn. P.19

5 876 borrower to repay the money borrowed by him is remedial and that of the publishers of a libel to the imprisoned or to pay damages to the person injured by him is penal. All criminal liability is penal while the civil liability is sometimes penal and sometimes remedial. 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 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 remfedy is in the fonn 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 he same, viz. the payment of money. In certain cases, imprisonment may be awarded for both civil and criminal liability. Even in

6 877 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. DISTINCTION BETWEEN CIVIL AND CRIMINAL LIABILITY About the distinction between the two, different jurists have given different views. AUSTIN says : "an offence which is pursued at the discretion of injured party or his representatives, is a civil injury. An offence which is pursued by the sovereign or by the subordinates of the sovereign is a crime...all absolute obligations are enforced criminally". SALMOND s view is that "the distinction between criminal and civil wrong is based on any different in the nature of the right infringed, but on a difference in the nature of the remedy applied". One view is that the main difference between the two lies in the procedure. In other words their procedures are different. Generally, four points of distinction between the two have been put forward: 1) Crime is a wrong against the society but a civil wrong is a wrong against a private individual or individuals. 2) The remedy against a crime in punishment but the remedy against the civil wrongs is damages. 3) A third difference between the two is that of the procedure. The proceedings in case of a civil wrong are called civil proceedings and criminal and civil proceedings takes place in two different sets of courts. 4) The liability in a crime is measured by the intention of the wrongdoer; but in a civil wrong the liability is measured by the wrongful act and the liability depends upon the act and not upon the intention.

7 878 POINTS OF DISTINCTION NOT WELL FOUNDED It is submitted that most of those points of distinction between the two are not well founded. To take the first point, there are wrong which are against the sate or society, but they are not considered as crimes, for example, a breach of a contract by an individual made with the state is not a crime. In the same way, there are wrongs which are only against a private individual made with the state is not a crime. In the same way, there are wrongs which are only against a private individual but they are considered as crimes. Secondly sometimes civil proceedings result in punishment. For example, in the case of disobedience of an injunction granted by a court punishment is awarded although it is civil proceeding. Thirdly to say that the measure of criminal liability is intention and of civil liability in the wrongful act itself is also not occrect. In modern times "mens rea (intention) has gone under an eclipse and the question of intention has become more of a form than of a substance. Tire distinction on the basis of proceedings is more sound and contains substantial truth. Though in some cases civil and criminal both the proceedings can be instituted for the same act they are always different and are regulated by two different sets of rules. 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.

8 879 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. fl D UTIES OF IMPERFECT OBLIGA TION In the first place, there are duties of imperfect obligation. A time-barred debt is an example of it. Thought eh debt exists in law, it is not enforceable. Ul 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. Everyone has a right to reputation, and therefore, there is a corresponding duty imposed on others not to violate such right. But if at a libel, is committed the specific enforcement of corresponding duty of defendant i.e. the person who has committed libel is not possible. In other words, once a mischief has been done, it cannot be undone. In such case damages are perhaps the only adequate remedy. in) Where Specific Performance is Inexpedient or Inadvisable In the third place, there are cases where thought eh specific performance of duty is plausible, the tew does not enforce its specific performance but rather awards damages to the plaintiff. For example, law does not enforce the specific performance of a promise of marriage or painting to picture but normally award damages in such cases.

9 880 In other words, ubi jus ibi" remedium - which means where there is right there must be a remedy. When law creates a duty it ensures its fulfillment also. For the breach of duty there is some remedy prescribed by law, and it is enforced by law. Thus, the purpose of remedial liability is to ensure the specific enforcement of plaintiffs rather than punishing the wrongdoer. According to the theory of remedial liability whenever law creates a duty it should enforce the fulfillment of such duty. The law imposes remedial liability on one who fails to perform such duty. Briefly ordinarily a duty is enforced by law except in the following cases where law will not enforce the same. 1) Duties of imperfect application, e.g. time-barred debt 2) Incapable of specific performance due to its intrinsic nature here only compensation will come into play e.g. tarring one s reputation. 3) Specific performance inexpedient - promise of marriage. Court would not insists on enforcing a marriage. -In all above cases duty is there but it cannot be enforced. Remedy is lost. 2) Penal Liability As stated earlier, the main purpose of penal liability is either directly or indirectly, to punish a wrong-doer. 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.

10 881 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. Generally a man is hold criminally liable only for those wrongful acts which he does either willfully or negligently. There are, however, some exceptional cases when law imposes strict liability as in case of offences under the lincensing acts or offences against public health. In such cases, the act itself becomes punishable even without the presence of guilty mind or negligence. That apart, the criminal law exempts certain categories of cases from penal liability. These are commonly known as defences or general exceptions and include mistake of act, accidents, infancy, minority, necessity, self-defence, voluntary intoxication, etc. If the offender succeeds in establishing any of these defences, he is not punished though his offence may satisfy the two conditions of actus and mens rea". The maxim actus non facit reum nisi mens sit rea stated long before by St.AUGUSTINE1, became, with slight change the best known maxim of the English criminal law though the words ultimately used by COKE. As late as in 1798, KENYON, C.J. had stated that the intent and act must both concur to constitute the crime. Since that time the English reports do not show any case in which the authority of Lord KENYON has been denied by the English courts. 1 St AUGUSTINE had said : "Ream Lmguam non facit nisi mens rea", sermons no. 180 C.2; cited m Pollock & MaiHand, Hist. Of English law, 11476, N.5

11 882 The maxi thus, which has been accepted by the English courts as a cardinal doctrine of English law for centuries, recognizes that there are two constituent elements in crime, i) A physical element, and ii) A mental element, and It makes plain that at common law no man may be found guilty of crime and therefore legally punishable unless in addition to having brought about a harm which the law forbids, he had at the time a legally reprehensible state of mind. It is, therefore, necessary to reach an understanding of these two constituent parts of criminal responsibility. According to AUSTIN intention and negligence are the alternative forms in which mens rea can exhibit itself. It is a condition precedent for the existence of guilt. In other words, a person is liable to be punished if he does a wrongful act intentionally or negligently. SALMND calls it the physical or material condition of liability. If there is no act, there can be no punishment. To quote Justice BRYAN : the thought of man cannot be tried, for the devil itself knoweth not the thought of man KENNY gives the following example : a man takes an umbrella from a stand at his club with intent to steal it, but finds it his own. He has committed no offence. The second condition 6f penal liability is mens rea" or guilty mind. An act is punishable only if it is done intentionally or negligently. Intention and negligence are the alternative forms in which mens rea can exhibit itself. The conditions of penal liability, the act does not constitute a guilt unless it is done with a guilty intention. Two things are required to be considered in this

12 883 connection and those are the act and the mens rea or the guilty mind of the doer of the act. "Mens rea requires the consideration of intention and negligence. The act is called the material condition of penal liability and the "mens rea is called the formal condition of penal liability. ACT An act is not capable of being defined in exact terms. It denotes only such physical facts which follow immediately upon the determination of will to effect them. 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. The view of HOLMES is that an act is always a voluntary muscular contraction and nothing else 1. Thus, according to AUSTIN & HOLMES both the jurists an act is a wiled movement of the body. SALMOND takes act in a wider sense. He says "we mean by it (act) any event which is subject to the control of human will. S ALMOND s use of the word "event is of great significance. Event is not an act in the strict sense nor is movement, but SALMOND by act means those events which are subject to the control of human will. An act consists of three stages: a) Its origin in some mental or Bodily activity or passively of the doer b) Its circumstances, and c) Its consequences. The Common Law

13 884 For example, if we take theft it has five ingredients1. 1) Dishonest intention to take property. 2) The property must be movable property 3) It should be taken out of the possession of another person. 4) It should be taken without the consent of the person, and 5) There must be some moving of the property in order to accomplish the taking of it. If we examine the ingredients in the light of the above definition we can say that it is an act according to the definition. Leaving the first ingredient which is the second condition - mens rea that shall be discussed later on if we arrange the other ingredients in the light of the definition, intention to take the property is a mental activity where the act originates. The circumstances are : the property must be movable ingredient-2 it should be taken without the consent of that person ingredient-4 there must be some moving of the property in order to accomplish the making of it imgredient-5 The consequence is that the property is taken out of the possession of another person ingredient-3 A theft would take place when all the ingredients are complete. When we use the word act" as condition of penal liability it is used in its wider sense, and not in its limited as sense as the movement of the body only. Therefore, the definition given by SALMOND is move accurate than the definition by AUSTIN and HOLLAND. The law prescribes under what circumstances and consequences an act shall be punishable or, in other words, a person committing the act shall be under penal liability. The circumstances so prescribed are relevant in determining whether a particular act wrong has taken place or not. A person is liable only for his own acts and not for the acts done by others, or the events which are independent by human activity. 1 See section 378 of the Indian penal code

14 885 From legal point of view, an act does not necessarily mean a bodily movement or a muscular contraction alone, but it must be accompanied by the consequences to the attainment of which the original act is directed or aimed at. For example, a man will not be held liable for gales, thunderstorms and other natural calamities1 which are beyond human control. Nor shall a man be liable for his thoughts and intentions alone unless they are actually transformed into an act. It may be pointed out that a bodily movement or muscular contraction alone shall not be act unless it is caused by volition which is a movement caused by human will. The reason being that muscular contraction may be due to some disease or pain and may not be intentional at all. 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. ACT AND EVENT DISTINGUISHED The distinction between act and event also deserves consideration. An act must be purposeful but an event is purposeless. IHERING illustrates the distinction between an act and an event by an example. A jumped down from a tower because he wanted to kill himself. Here jumping constitutes an act. It is composed of muscular movement which is necessary for jumping. The jumping is also done with a purpose of killing himself. But A s losing life by a fall from the tower is an event. The falling, therefore, is an event and not an act. This is so because it does not consist of any bodily movement following upon volition. An act is an event which is subject to the control of the human will. 1 In legal terms they are called act of God" or vis major

15 886 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. Three aspects of act: a) Origin b) Circumstances c) Consequences Illustration : shooting -physical doing of the act. Origin : a person is in range of revolved Circumstances: the bullet enters the body of the man - consequences. Law punishes acts sometimes considering the hour at which these are done, e.g., house breaking at night. KINDS OF ACTS The various kinds of acts are:- 11 Voluntary and Involuntary Acts For the purposes of law, the distinction between voluntary and involuntary acts in important. A voluntary act consists in a willed muscular contraction which incurs liability by virtue of circumstances in which it is committed or the consequences which flow from it. In short, 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. Activities beyond normal human control such as beating of human control such as beating of one s heart, sneezes and twitches, acts done in sleep or in a fit of automation are the examples of involuntary acts. Involuntary acts incur no liability.

16 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. For instance, A shoots at B with the intention that it should cause B s death, the act of A is intentional and he shall be punished for the offence of homicide under Section 302 IPC. But if A fires at a bird on a tree and the bullet from his gun glanced off the bough of a tree and his B, who carried the cartridges and injured him, A would not be liable because the act is unintentional1. It is rather an accidental act. 3) Internal and External Acts Internal acts are the acts of mind while external acts are the acts of body. Thus, to think is an internal act, to speak is an external act. Every external act is precedent by an internal act, but every internal act need not necessarily be followed by an external act. The internal or external acts may either be positive or negative. According to Dr.SETHNA, mental passivity signifies an internal negative act while mental activity shows an internal positive act. A man who, seeing a drowning person, think whether to rush for help or not, he is said to have committed an internal positive act as soon as he arrives at the decision to rush forwards to help the drowning person. If he actually rushes to help, his physical act is called an external positive act, but if he sits quiet and decides not to move for help, this act of sitting quiet is an external negative act 2. Where a man deliberately abstains from doing an act, his forbearance is an outcome of his desire and, therefore, it is an internal negative act. Whefe a man forgets to do something which he is supposed to do, his act of forgetting is unintentional negative act. 1 STANLEY V. POWELL (1891) 1 QB 86 2 Dr.SETHNA : Jurisprudence P.417

17 888 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. These consequences may be of two kinds, namely, 1) Actual, or 2) Anticipated Thus, there are acts which actually result in harmful consequences while there are others which may not lead to harmful consequences but which are nevertheless regarded as mischievous under the law. 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. The loss if any incurred in these cases may, however, be relevant to decide the quantum of damages. Criminal liability usually arises on proving that the act was dangerous or mischievous even though it did not causes any harm. An unsuccessful attempt is also a ground for criminal liability like a completed offence. Thus, dangerous and rash driving or riding is an offence1 punishable under the law though no harm is caused. As to the civil liability, no corresponding general principle like that of penal liability, can be laid down. In some civil cases proof of actual damages is insisted upon while in others there is no such necessity. As stated earlier, in case of criminal responsibility, persons are judged by their acts and by the mischievous tendencies of them, but so far civil liability is concerned they are often judged by the actual event. The difference between the two, as pointed out by SALMOND can be illustrated thus:- Criminal law says, you should not do this, if you do this you will be punished". Civil law on the other hand, says, you may do this, but if any evil consequences chance to ' Sec. 279 IPC

18 889 follow, you will be held liable The essence of civil liability is contained in two latin maxim, namely, 1) Damnum sine injuria, and 2) Injuria sine damno 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. The law ignores the harm of his nature because no legal injury is caused. Such cases are covered under the maxim - damnum sine injuria. The word "injury signifies an act contrary to law" or violation of legal right. The maxim means that damage without injuria infringement of right is not actionable. Mereloss in money or money s worth does not itself constitute legal damage and is not a good ground of action. There are many acts, which though harmful, give right of action to him who suffers their effects. Damage so done and suffered is called "damnum sine injuria i.e. actual and substantial loss without infringement of any legal right and in such cases no action lies. Hence the maxim implies that loss or detriment is not a ground of action, unless it is the result of a species of a wrong of which the law takes cognizance. Thus if I have a mill, and my neighbour sets up another mill, and thereby the profits of my mill fall off, I cannot bring an action against him eventhough, I have suffered damage. SALMOND S CLASSIFICATION SALMOND classifies the principal cases of damnum sine injuria as follows: i) Where the harm is caused by a persons lawful exercise of his own right, as in the ii) iii) iv) case of loss inflicted on individual traders by competition in trade. Where the defendant exercises alright to his property. Where the damage is caused by a man acting under necessity. Where the harm complained is too trivial, too indefinite or too difficult to prove for effective legal recogniton. v) Where the harm caused is of such a nature that the law considers it expedient to.y confer any right of pecuniary redress upon the individual s injury.

19 890 According to SALMOND, the cases covered under the maxim damnum sine injuria can be grouped in two categories, as under:' 1) Cases in which there is an injury to an individual but the society as a whole is benefited, therefore such acts are not actionable. For example, competition in trade might result into harm to some traders but the society in general is benefited by it. Therefore, harm caused thereby is not "injury1" and hence does not incur civil liability. Again, a land owner may so excavate his land as to withdraw support need for adjoining building or he may drain away water which supplies his neighbour reservoir2. These acts may be harmful to individuals nevertheless they are justified in law for they are in public interest. 2) The second category of cases falling under the maxim damnum sine injuria includes all those cases in which the harm caused is so insignificant or trivial3 in nature or so difficult to prove that any attempt to prevent them shall make the remedy worse than the disease 4. There are number of leading cases on the subject, some of them being Aj Gloucester Grammar School Case The defendant a school maser, set up a rival school next door to the plaintiff. Plaintiff sued the defendant for the loss. It was held that no suit could lie on the ground that bona fide competition can afford no ground of action, whatever damage it may cause. Bj Chasemore V. Richards(1819) 7H.L.C. 349 In this case a land owner and a mil owner who had for about six years enjoyed the use of a stream, which was chiefly supplied by percolating underground water; has lost the use of the stream after an adjoining owner had dug, on his own ground an extensive well for the purpose of supplying 1 Mogul Steanship Co. V. Mac Gregor (1889) 23 GBD Allen V Flood (1898) AC 1 1 De minimus non curat lex 4 Dr. WINFIELD : Textbook of law of torts (7,h Ed.) P.13

20 891 water to the inhabitants of the district. In an action brought by the land owner it was held that he had no right of action. INDIAN CASE U Anand Singh V. Ram Chandra, AIR, 1963 MP. 28 The defendant built two pacca walsl on his land on two sides of his house. The result of this action was that the water flowing through lane belonging to the defendant and situated between defendant s and pliantiff s houses damaged the wall of the plaintiff. This was to be a case of "damnum sine injuria ". 2j Dhadphale V Gurav, (1881) 6Bom. 122 Where the servants of a Hindu temple had a right to get the food offered to the idol, but the person who was under an obligation to the idol of offer food did not do so, and the servants brought a suit against him for damage, it was held that the defendant was under no legal obligation to supply food to the temple s servants, and though the result of his omission to supply food to idol and might involve a loss to the plaintiff, it was damnum absque injuria" and could not entitle the plaintiffs maintain a suit. INJURIA SINE DAMNQ 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. Law recognizes certain permanent importance for an individual s living in the society that an infringement of it ipso facto presents a cause of action. The maxim, therefore, means that where there is an infringement of an absolute private right is so infringe has a direct cause of action. In such a case it is no ndcessary for the plaintiff to prove damage, for the law presumes damage, when an absolute right is infringed. Injuria sine damno therefore in other words, provides that actual perceptible damage, loss or detriment is not indispensable as a foundation in an action for tort. Trespass to person i.e. assault, battery, false imprisonment, libel and trespass to property, whether it be land or goods are instances of tort that are actionable "per se

21 892 The maxim is just converse of the earlier maxim damnum sine injuria. There are certain acts which though not harmful, are actionable. In other words, an injury without damages incurs civil liability. The case of Ashby V. White"1 - the leading case on the maxim is "Ashby V White wherein it was held that where a person is injured in the exercise or enjoyment of a right, an action is maintainable whether or not any material damage has been caused. W, the returning officer, in a parliamentary election wrongly rejected A!s vote. The candidates for whom A would have voted were elected. A sued W and was awarded $200/- damages. In the course of his judgment Hott, C.J., observed if a plaintiff has a right, he must of necessity have a means to indicate and maintain it, and a remedy if he in injured in the exercise or enjoyment of it must be provided; and indeed it is a vain thing to imaging a right without a remedy for want of right and want of remedy are reciprocal. The case of Ashby V. White is an illustration on the point of Injuria sine damno In this case the plaintiff was wrongfully prevented from exercising his right to vote by the defendant returning officers in a parliamentary election. The candidate for whom the plaintiff wanted to caste his vote had come out successful in the election, still the plaintiff could recover damages against the defendants for maliciously preventing him from exercising his statutory right of voting in the election. Lord HOTT CJ. observed that there was the infringement of a legal right vested in the plaintiff hence the defendants were liable. Since no actual damages were caused, the court awarded $20 by way of recognition of plaintiffs legal right. CAUSATION In law, a man is held liable either for doing acts which are mischievous or for causing actual injury to the plaintiff. (1703) 1 ER417

22 893 Causation, therefore, is an important concept for determining liability in law. In fact, before deciding the question of liability the question of causation should be decided first. Thus, if A is to be held responsible for burning B s house, he must first be shown to have caused it. Causation, therefore, is an important factor to determine responsibility whether it is of a criminal or civil nature. The causation broadly involves two types of occurrences, namely, i) Abnormal factors; ii) Human acts Thus in the above illustration where a house has been burnt down, presence of inflammable gas, ignition, an electric short circuit, etc. may be abnormal circumstances causing fire or it may have been caused by some person. Once either of these factor is found present, it is easy to know the causation and attribute responsibility. An act may have been caused due to a change of causation involving several factors. It is the established principle of law that a man is not held liable for his act if the chain of causation is broken or interfered with. This is contained in the maxim - novus actus interveniens. SALMOND explains the maxim through an illustration. He says "if A stabs B and B is taken to hospital where, despite the fact that he is shown to be allergic to terramyein, is injected Math a large dose of it, then his treatment and not the stab would be treated as a cause of B s death because the treatment which was abnormal, broke the casual connection between the -wound by the accused and the victim's death /. RV JORDAN, (1956)40 Cr.App R-152

23 894 The leading case on causation is relation to civil liability is in Re Polemis1 wherein the defendant s servant carelessly dropped a plank into the ship s hold, the plank struck a spark which ignited petrol vapour whose presence in the hold was unsuspected. The defendant s were, however, held liable for damages caused to the ship. But this decision has been overruled by the Privy Council in Wagon Mound2 case and now forcibility of consequences is the test for determining causation and liability. In certain cases, the law will presume that a man has intended the natural and probable consequences of his act. Thus in Scott V. Shepherd the defendant shepherd mischievously threw a lighted cigarette squib into the market place. It fell where Yates sold ginger-bread. One will is, to prevent injury to himself and Yates, picked it up and threw it across when it fell in the shop of one Royal who took it and threw it across when it struck the plaintiffs eye and injured it. The court held that the injury to the plaintiff was directly and immediately caused by the defendant, as willis and royal, the intermediate agents acted involuntarily and for self-protection. The injury was held to be not too remote. It is true that the defendant did not intend to injure the plaintiff and much less to destroy his eye, nevertheless, he was held liable for one must answer for the consequences which common sense would attribute to his wrong doing. MENS REA It may be reiterated that a man is held criminal liable not for his act alone but if it is also accompanied with mens rea or guilty mind with which he does it. Thus, mens rea 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. Generally, the knowledge of the consequences is considered as part of mens rea because mental condition of a man can be judge by his conduct and it is rather difficult to peep whether he did the act intentionally or recklessly with the knowledge of the consequence. '(1921) 3 KB (1961) AC 388

24 895 Guilty mind "mens rea may assume two forms, i.e. 1) Wrongful intention; or 2) Culpable negligence A person shall be punished if he intentionally and willfully does an act which is prohibited by the criminal law of the land. He shall also be criminally liable if he does a forbidden act negligently or carelessly without bothering about the consequences following there from. There are, however, some exceptional cases when a person is held liable irrespective of his wrongful intention or culpable negligence. Such cases are covered under what is known as the strict liability cases. 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 The doctrine of mens rea has been well explained in the famous English case of R.V.TOLSON1. In this case a woman whose husband had deserted her married another man before the expiry of seven years which was against English law relation to marriages. The jury, however, found the woman "not guilty of bigamy as the bonafide believed that her husband had died. The court acquitted her of the charge of bigamy as mens rea was not proved in this case. Thus a mere act does not constitute an offence unless it is coupled with mens rea. In other words, mens rea is an essential ingredient for a crime. Sir J.STEPHENS, however, thinks that the doctrine mens reea is misleading. In his view, the doctrine originated when offences were not defined unless the criminal law. Some persons found that the crime consisted not merely in doing a particular act such as killing, stealing, etc. but doing it with a paxticular knowledge or purpose. The mental condition came to be '(1889) 15 Cox 629

25 896 called as mens rea. But now at the present stage when every offence is well defined, the doctrine of mens rea has become unnecessary if not obsolete. APPLICATION OF THE DOCTRINE OF MNES REA IN INDIA Whatever may be the position of mens rea in English criminal law but this doctrine is wholly out of place with reference to the Indian penal code. As J.D.MAYNE, the learned author of criminal law in India, has pointed out, "every offence is defined and the definition states not only what the accused must have done, but the state of mind with regard to the act when he was doing it. For example, theft must involve dishonestly, cheating must be committed fraudulently, murder must be committed either intentionally or knowingly. Thus, there is no need for the general doctrine of mens rea in India since each definition of the offence is selfsufficient. All that the prosecution has to do is to prove the various ingredients to a particular offence which the accused is alleged to have committed. 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.

26 897 The Privy council, however, observed that tire offences in which liability could be imposed without guilty mind must be comparatively far and few1. 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 v 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. PRESUMPTION OF INNOCENCE It is the fundamental principle of criminal law that everyone is presumed to be innocent until his guilt is proved by the prosecution. This, in other words, means that a person who is accused of a crime is not bound to make any statement or offer any explanation regarding the incidence of crime. He stands before the court as an innocent person. It is for the prosecution to prove the guilt of the accused beyond reasonable doubt. However, there are certain exceptions to this fundamental doctrine of criminal law. They are: a) The court may presume that a person who is in possession of stolen goods soon after the theft is either a thief or a guilty receiver unless he has a satisfactory explanation for the possession of that goods2. b) Where the accused pleads of protection under some of the exceptions i.e. defences, the court need not presume innocence of the accused. In such circumstances if the defence fails the accused will be convicted. 1 Sriniwas Mall Bairoliya V. Emperor (1947) 49 Bom LR Section 114 Illustration (a) of the Evidence Act

27 898 c) There are certain offences relating to trademark1, property mark2 and currency notes3 under the Indian penal code the burden of proof of innocence is shifted on the accused instead of the prosecution. In such cases the presumption of innocence is negatived by the courts. In such cases the burden of proving innocence is on the accused. MAILCE Malice in popular sense means ill-will or spite. In legal parlance it, however, means wrongful intention. It includes any intent which the law deems wrongful. An act done with a bad intention or with bad motive is said to have been done maliciously. An evil motive is called malice. The term malice, therefore, includes both forms of intent, viz. 1) Immediate, and 2) Ulterior Motive is the ulterior object or intent, or the the ultimate purpose with which an act is done. In the case of maliciousprosecution, the term does not mean intentional prosecution, but a prosecution inspired by some motive which is disapproved by law. It is only in exceptional cases that malice is the sense of improper motive is relevant for determining the question of legal liability; otherwise the law merely asks what the defendant has done, and not why he did it. Malice is a wish to injure the party rather than to vindicate the law4". It is indicative of an evil mind which is disdainful of duties, social or legal, and disregards the duties to others. 1 Sec 486 IPC 2 Sec 487 & 488 IPC 1 Sec. 489 E IPC 4 POLLOCK on torts, I5,h Ed. P.237

28 899 In common parlance, malice means ill-will against a person, but in legal acceptation, it means a wrongful act done intentionally without just cause or excuse; Bromage V. Prosser1; Clark V, Malyneux2. It is the doing of a wrongful act to another without legal excuse or justification willfully or purposely. Malice indicates varying shades of wickedness and includes cool depravity and hardness of heart, vindictiveness, perpetration of injurious acts without lawful excuse, cruelty, recklessness of consequences and regardless of one s obligation. It is a disposition which impels injury to another without cause, from a spirit of revenge, or from personal gratification. It may be implied from a deliberate intention to do a wrong without justification. It is not necessarily hate or ill-will, but it is a state of mind which is reckless to law and of the legal rights of others. All acts done with an evil disposition or unlawful motive with an intention to cause injury and without a lawful excuse may be characterized by malicious. Malicious act is not one which is done accidentally, thoughtlessly or negligently but diligently willfully or wantonly. 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. The doctrine is explained by an illustration. 1 (1825)4 B&C247, (1877) 3 QBD 237, 247

29 900 If a person intends to cause the death of A and in his attempt to cause the death of A, he kills B, he would be guilty of having committed the murder of B though he never intended to kill B. In this case, the general intention to kill is transferred to the killing of B. The doctrine of transferred malice is reflected in section 301 IPC which reads as under: "If a person by doing anything which he intends or knows to be likely to cause death of any person, whose death he neither intended nor knows himself to be likely to cause, the death caused by him shall make him liable as if he had caused the death of the person whose death he neither intended nor knew likely to be caused, 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 H 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. For example, if a person steals a few loaves of bread from someone s kitchen for feeding his starving children, his motive or purpose is good nevertheless the intention of stealing constitutes the offence of thought which is punishable under