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CHANAKYA NATIONAL LAW

UNIVERSITY, PATNA

PROJECT OF JURISPRUDENCE-I
VICARIOUS LIABILITY IN CRIMINAL LAW

SUBMITTED TO: -
DR. MANORANJAN KUMAR
FACULTY OF JURISPRUDENCE

SUBMITTED BY: -
ADITYA VIJAY SINGH
ROLL NO. -1507
6TH SEMESTER
ACKNOWLEDGEMENT

Writing a project is one of the most significant academic challenges, I have ever
faced. Though this project has been presented by me but there are many people
who remained in veil, who gave their all support and helped me to complete this
project.

First, I am very grateful to my subject teacher DR. MANORANJAN


KUMARwithout the kind support of whom and help the completion of the
project was a herculean task for me. He donated his valuable time from his busy
schedule to help me to complete this project and suggested me from where and
how to collect data.

I acknowledge my friends who gave their valuable and meticulous advice which
was very useful and could not be ignored in writing the project. I want to
convey most sincere thanks to my 5th year senior Shri Ashutosh Kashyap, for
helping me throughout the project.

Last but not the least, I am very much thankful to my parents and family, who
always stand aside me and helped me a lot in accessing all sorts of resources.

I thank all of them!

Aditya Vijay Singh

R.No.1507,
SEMESTER 6th
B.A.L.L.B. (Hons.)
CONTENTS
VICARIOUS LIABILITY IN CRIMINAL LAW.................................................................. 1
ACKNOWLEDGEMENT ...................................................................................................... 2
CONTENTS ........................................................................................................................... 3
1. INTRODUCTION .......................................................................................................... 1
2. CONCEPT OF LIABILITY ........................................................................................... 3
3. KINDS OF LIABILITY ................................................................................................ 6
4. VICARIOUS LIABILITY ............................................................................................ 12
5. VICARIOUS LIABILITY IN CRIMINAL LAW....................................................... 17
6. CONCLUSION ............................................................................................................ 21
BIBLIOGRAPHY ................................................................................................................ 22
1. INTRODUCTION

Vicarious liability is a form of a strict, secondary liability that arises under the common law
doctrine of agency ; respondeat superior – the responsibility of the superior for the acts of
their subordinate, or, in a broader sense, the responsibility of any third party. Vicarious
liability also known as joint responsibility liability is a legal theory of liability that empowers
the court to hold a person liable for the acts of other. Under this doctrine individuals can be
made vicariously liable for a criminal act of others even if they merely helped to further the
crime in some way example aiding and abetting criminal activities. This often occurs in the
context of civil law—for example, in employment cases.

In a criminal context, vicarious liability assigns guilt, or criminal liability, to a person for
wrongful acts committed by someone else. This doctrine is considered to be fundamentally
flawed under criminal law because it is based on ―respondent superior‖ principles that are
concerned with distributing loss caused by tortious act.

Vicarious liability is one of those liabilities that is imposed on one person for the wrongful
actions of another person. Such a liability arises usually because of some or the other legal
relationship between the two. The important point to be noted to impose such a liability on
some other person is that an act on which such a liability is imposed should have happened in
the course of employment.

A. AIMS AND OBJECTIVE

I. To study the concept of liability in Jurisprudence.

II. To relate the concept of liability to concept of Vicarious Liability.

B. HYPOTHESIS

I. Vicarious Liability is against the concept of natural justice

II. Liability is imposed only when wrong is done by the party

C. RESEARCH QUESTION

I. What is Liability under Jurisprudence?

II. How is Vicarious Liability explained through Jurisprudence?

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III. What are the different kinds of liability in law ?

D. RESEARCH METHODOLOGY: Doctrinal

E. SOURCES OF DATA

I. Primary sources- .Indian Penal Code, 1860.

II. Secondary sources- Books on Jurisprudence and Legal Liability and Criminal
Law, websites, Journal, articles.

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2. 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 has felt the
impact of new jurisprudence1.

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.

1
SALMOND : Jurisprudence (12th Ed.) P.34

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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 compensation2.

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 wrongdoer and the
remedy of the wrong has more often been said to have 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.

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 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.

2
SALMOND : Jurisprudence (12th Ed.) P.349
3
MARKBY, Elements of Law (3rd Ed. 1885) P.292

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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 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 penal4. All criminal liability is penal while the civil liability is
sometimes penal and sometimes remedial.

4
Paranjape, N.V, Studies in jurisprudence and Legal Theory, Central Law agency, 2018

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3. KINDS OF 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 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 liability5. 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
offence6.

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

5
ALLEN C.K.: Legal rights and duties, P.233
6
SALMOND : Jurisprudence (12th Ed.) P.98.

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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"7.

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.

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 liability8. 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.

7
Dr. M.J.SETHNA, Synthetic Jurisprudence, P.19-21
8
BLACKSTONE : Commentaries, Book IV P.640

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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.

1 DUTIES OF IMPERFECT OBLIGATION

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 enforceable9.

2 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.

3 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.

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 law10. Thus, the purpose of remedial
liability is to ensure the specific enforcement of plaintiffs rather than punishing the
wrongdoer.

9
Paranjape, N.V, Studies in jurisprudence and Legal Theory, Central Law agency, 2018
10
ALLEN C.K.: Legal rights and duties, P.49

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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 marriage11.

-In all above cases duty is there but it cannot be enforced. Remedy is lost.

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.

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 element12.

Generally a man is hold criminally liable only for those wrongful acts which he does either
wilfully or negligently. There are, however, some exceptional cases when law imposes strict
liability as in case of offences under the licensing 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

11
BLACKSTONE : Commentaries, Book IV P.89
12
Dr. M.J.SETHNA, Synthetic Jurisprudence, P.19-21

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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.AUGUSTINE13, 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.

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.

SALMOND 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 of 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 itself14.

13
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
14
BLACKSTONE : Commentaries, Book IV P.640

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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 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 negligence15. The act is called the material condition of penal
liability and the "mens rea” is called the formal condition of penal liability.

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Paranjape, N.V, Studies in jurisprudence and Legal Theory, Central Law agency, 2018
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4. VICARIOUS LIABILITY

VICARIOUS LIABILITY ON THE GROUND OF RELATIONSHIP

The general principle of law is that person is liable for his own-acts and not for the acts of
others. But in certain kinds of cases a person is made liable for the act of another on account
of the standing in a particular relationship with that person. This liability is called vicarious
liability. This kind of liability existed in ancient times also but the grounds of liability were
entirely different from what it is in modern times.

The principle of vicarious liability in ancient times was that a person must be made
answerable for the acts of the person who are akin to him. With the onward march of time
this principle of liability underwent a great change, and in modem times, this liability exists
in a limited kind of cases. Now a person is made liable on the grounds of expediency and
policy, and not on any other ground.

Normally, it is tire wrong-doer himself who is held liable for the act. But there may be certain
circumstances when the liability of the wrongdoer is imposed on some other person than the
wrongdoer himself. That is, some other person is made liable for the wrongful acts of the
wrongdoer. For example, a master is liable for the Wrongful acts of his servant done in the
scope of employment. Likewise a principal is liable for the wrongful acts of his agent done in
the ordinary course of business or a guardian is liable for the wrongful acts of his words.

The doctrine of vicarious liability is based on the principle of "respondent superior".

According to SALMOND16 the rational basis of the rule of vicarious liability, of which the
master-servant liability serves as the best illustration, is mainly evidential. To quote his own
words of SALMOND, “there are such immense difficulties in the way of proving actual
authority, that unless some such conclusive presumption is drawn, masters would make tools
of their servants to commit great wrongs. A word, a gesture or a tone from the master will be
sufficient to induce a servant to commit greatest wrongs, yet who could prove such a measure
of complexity".

CRIMINAL LAW

16
SALMOND : Jurisprudence (12th Ed.) P.349

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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 un skill full hands, he will be in
certain cases criminally liable17 .

The principle of vicarious liability has no application in criminal law for it would be against
the public policy to punish a person for the crime committed by someone else. However,
there are three exceptions to this general rule:-

1) In many cases the law imposes upon the owner of a property the obligation of managing it
so that it does not injure anyone else or the public in general. In such cases if a breach of
obligation is committed the owner cannot escape criminal liability by delegating the
management to someone else18.

For example, the proprietor of a newspaper would be liable and punished for a libel
“defamation" published in it though he was living at a distance and know nothing about the
libel until he read the newspaper.

2) In case of public nuisance under section 268 IPC, also a master is held vicariously liable
for the act of public nuisance committed by his servants.

3) Under the licensing acts the professionals holding licenses would be vicariously punished
for the acts of violations committed by their servants. The same rule shall be applicable in
respect of vicarious price controlling laws. A master of a business firm could be held liable if
his servant committed an act in violation of any provision of the statutory law.

CIVIL LAW

17
See Indian Penal Code, 1860, Sections—154 and 155
18
Section 154 and 155 IPC provide punishment by way of penalty upon the owner of land in certain cases
where breach of duty is committed by his agent or manager

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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 representative of the dead person are, in certain cases, liable for the acts of the
deceased.

Master ’s Liability for the Acts of his Servant

Most of the jurists are of the view that the origin of the liability of the master for the acts of
his servant is in the old institution of slavery. HOLMES tracing the development of the
liability says that in the beginning it was the revenge that was the motive of the punishment.
It was vengeance on the immediate offender. If a slave committed a wrong, the master of the
slave had to surrender him to the person who had suffered the wrong. Even the inanimate
things were surrendered or forfeited if any injury to a person too place on account of them.
Later on, instead of surrendering the slave some compensation was paid to the person
suffering the injury by the master of the slave or the thing. Thus the master paid for the blood
feud for taking back the salve or the thing. In other words, the surrender was substituted by
compensation. Gradually a practice developed that the master was also made a party when
an- action was brought against his servant for his wrongful act. It was only as a matter of
convenience to establish the liability of the master and to realize the money from him.
Though in course of time the institution of slavery was abolished and the nature of the
liability also changed, a master continued to remain liable for the wrongful acts of his
servants on the same analogy19.

The modern jurists are of the view that the liability of the master in modem times is not
linked with the old principle of liability. The liability of the master for the acts of his servants
in modern times is of recent origin and growth. The liability of the master for acts of his
servants is based on a legal presumption which later on, became conclusive that the acts done
by a servant in and about his master’s business are under the express or implied authority
from the master. Therefore, these acts are the acts of the master.

19
SALMOND : Jurisprudence (12th Ed.) P.56

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It is this presumption which has appeared in the shape of the employer’s liability. It has been
embodied in various statues. The reasons of making the master liable are mainly two:-

It is Evidential Importance

To prove in every case of this nature that the servant acted under the actual authority of his
master would involve a lot of difficulties and in most cases the master will escape the liability
on the ground that there was no formal authority given to the servant. Secondly, to make
masters liable for the acts of their servants makes them to remain vigilant and caution in
respect of the acts of their employers.

The Second Reason for making the Master Liable in his Pecuniary Position

The master are in a financial position to redress the injury caused by the acts of their servants.
It is a principle of justice that one who is in a position to make good the loss caused by him or
on his behalf should not escape the liability of the paying it delegating the exercise of it to the
agents from whom no redress can be obtained. If a matter keeps a servant at a place where he
can cause mischief the matter must be answerable for that.

Representatives of a Dead Man are in certain cases liable for the Acts of the
Deceased

This is a second form of vicarious liability. 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 s the civil liabilities of the deceased are concerned
most of them are transferred upon his representatives.

For example, a debt or damages for which a deceased was liable will have to be paid by his
representatives. Whether the representatives of a deceased should be liable or not in cases of
the penal redress which was to be made by the deceased in a question on which there has
been a difference of opinion. The penal redress partakes the nature of punishment and
compensation both20.

According to the principle, the former liability should extinguish with the death of the
wrongdoer, but.. .the latter liability survives him. The main problem was how to transfer this
liability on the representative.

20
Paranjape, N.V, Studies in jurisprudence and Legal Theory, Central Law agency, 2018
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The older view was that the action for the penal redress dies with the wrongdoer and his
representatives cannot be held liable for it. This view is no longer accepted.

In modern times, the representatives of a deceased are liable in cases of penal redress also
and in many legal systems it has been embodied in a statute.

It is considered that although liability to afford redress ought to depend in the point of origin
upon the requirements of punishment, it should depend in point of the continuance upon
those of compensation21.

Representative are held liable on the ground that when a valuable right of a person "against a
wrong has been committed" has come into existence, he should not be disappointed. A person
who has succeeded to the estate of the deceased must pay and he is liable to pay it on the
same ground on which he is liable to pay a debt of the deceased. Secondly, holding
representatives liable will work as a deterrent. The person who commits a wrong shall be
made to think that in any case he shall have to redress the wrong and after his death his
representatives shall be liable. It will deter a person from doing a wrong of this kind.

The principle of vicarious liability also extends to living representatives for the acts of the
dead in certain cases. This is enshrined in the Latin maxim- “action personalis maritur cum
persona ” which means that an action dies with the death of the person. Therefore, all
personal actions such as assault, defamation, trespass, etc. come to an end with the death of a
person. But in cases of unjust enrichment, the heirs or successors of the deceased shall be
vicariously liable for the wrongful acts of the dead man.

21
SALMOND: Jurisprudence

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5. VICARIOUS LIABILITY IN CRIMINAL LAW
A person can be criminally liable for the acts of another if they are a party to the offense. For
instance, the driver of the get-away car is guilty of the armed robbery of a store even though
the driver never left the car, and the entire robbery itself was committed by others. The
essence of vicarious liability in criminal law is that a person may be held liable as the
principle offender that is the perpetrator of a crime whose actus reus is physically committed
by someone else. It is believed that person merely performing the actus reus on the say of
another is not innocent and thus is also made liable for the offence. The law sometimes
focuses upon the relationship between the defendant and the performer of the physical acts
and by virtue of that relationship; it attributes the acts of the latter to the former. It should be
emphasised at the outset that this form of liability in criminal law is very much an exception
rather than the rule. The concept of vicarious liability is mainly a civil law principle whereby
an employer is made liable for the negligence or breach of duty of his employees.

IPC makes a departure from the general rule in few cases, on the principle of respondent
superior22.In such a case a master is held liable under various sections of the IPC for acts
committed by his agents or servants.

 Section 149 provides for vicarious liability, it states that if an offence is committed by
any member of an unlawful assembly in prosecution of a common object thereof or
such as the members of that assembly knew that the offence to be likely to be
committed in prosecution of that object, every person who at the time of committing
that offence was member would be guilty of the offence committed23
 Section 154 holds owners or occupiers of land, or persons having or claiming an
interest in land, criminally liable for intentional failure of their servants or managers
in giving information to the public authorities, or in taking adequate measures to stop
the occurrence of an unlawful assembly or riot on their land. The liability on the
owners or occupiers of land has been fixed on the assumption that such persons, by
virtue of their position as land-holders, possess the power of controlling and
regulating such type of gatherings on their property, and to disperse if the object of
such gatherings becomes illegal.24

22
Gour Hari Singh, The Penal Law of India, Vol II, 11t Ed., 2000, pp 1467-1472
23
Munivel vs. State of T.N. AIR 2006 SC 1761
24
In certain cases, a fellow criminal may be liable for the acts committed by the other accused on the principle
of vicarious liability. Barker v. Levinson (1920) 2 All ER 823- a master isn‘t criminally liable for the acts

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 Section 155 fixes vicarious liability on the owners or occupiers of land or persons
claiming interest in land, for the acts or omissions of their managers or agents, if a riot
takes place or an unlawful assembly is held in the interest of such class of persons.
 Section 156 imposes personal liability on the managers or the agents of such owners
or occupiers of property on whose land a riot or an unlawful assembly is committed.
 Section 268 and 269 explicitly deals with public nuisance. Under this section a master
is made vicariously liable for the public nuisance committed by servant.
 Section 499 makes a master vicariously liable for publication of a libel by his servant.
Defamation is an offence under this section.

VICARIOUS LIABILITY OF STATE

The term administration‘ is used here synonymously with state‘ or Government‘. To what
extend the administration would be liable for the torts committed by its servants is a complex
problem especially in developing countries with ever widening State activities. The liability
of the government in tort is governed by the principles of public law inherited from British
Common law and the provisions of the Constitution. The whole idea of Vicariously Liability
of the State for the torts committed by its servants is based on three principles:

 Respondeat superior (let the principal be liable).


 Quifacit per alium facit per se (he who acts through another does it himself).
 Socialisation of Compensation.

Position in England: Under the English Common Law the maxim was The King can do no
wrong and therefore, the King was not liable for the wrongs of its servants. But, in England
the position of old Common law maxim has been changed by the Crown Proceedings Act,
1947. Earlier, the King could not be sued in tort either for wrong actually authorised by it or
committed by its servants, in the course of employment. With the increasing functions of
State, the Crown Proceedings Act had been passed, now the crown is liable for a tort
committed by its servants just like a private individual. Similarly, in America, the Federal
Torts Claims Act,1946 provides the principles, which substantially decides the question of
liability of State.

Liability of state for acts of employees

committed by his agents or servants in the course of employment in case such acts are outside the general scope
of tat employment.

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In England, the state is not liable for the criminal acts committed by its servants. This is
based on the doctrine Rex non-potest peccare which means the King can do no wrong and
that the king is not bound by a statute unless he is expressly named or unless he is bound by
necessary implication.

In India till 1967 the position was similar to that in England and the state was not to be
proceeded against under the IPC or under any other statute. However, in Superintendent and
Remembrance of Legal Affairs, West Bengal v. Corpn of Calcutta25, a Full Bench of nine
judges of the Supreme Court overruled its earlier decision in Director of Rationing and
Distribution v. Corpn of Calcutta26 and held that common law doctrine, which states that the
Crown is not bound by a statute, save by express provisions or necessary implication, is not
the law of the land after the Constitution of India came into effect. Both civil and criminal
statutes apply to citizens and states alike. In the case of Sahali v. Commissioner of Police
27
also, it was held that with the evolution of strict constitutional regimes and law-sovereign
immunity has been waived by most jurisdictions with respect to most subject matter.

Position in India: Unlike Crown Proceedings Act, 1947(England), we do not have any
statutory provisions mentioning the liability of the State in India. The law in India with
respect to the liability of the State for the tortious acts of its servants has become entangled
with the nature and character of the role of the East India Company prior to 1858. It is
therefore necessary to trace the course of development of the law on this subject, as contained
in article 300 of the Constitution. The position of State liability as stated in Article 300 of the
Constitution is as under: Clause (1) of Article 300 of the Constitution provides first, that the
Government of India may sue or be sued by the name of the Union of India and the
Government of a State may sue or be sued by the name of the State; secondly, that the
Government of India or the Government of a State may sue or be sued in relation to their
respective affairs in the like cases as the Dominion of India and the corresponding Provinces
or the corresponding Indian States might have sued or be sued, ―if this Constitution had not
been enacted‖, and thirdly, that the second mentioned rule shall be subject to any provisions
which may be made by an Act of Parliament or of the Legislature of such State, enacted by
virtue of powers conferred by the Constitution. Consequently, one has to uncover the extend
of liability of the East India Company in order to understand the liability parameters of the

25
AIR 1970 SC 1767
26
AIR 1960 SC 1355
27
1990 AIR 513

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administration today because the liability of the administration today is in direct succession to
that of the East India Company. The East India Company launched its career in India as a
purely commercial corporation but gradually acquired sovereignty. Therefore, in the
beginning, the company did not enjoy the immunity of the Crown. It was only when it
acquired political powers that a distinction was made between sovereign and non- sovereign
functions.

 State of M.P. v. Chironji Lal28: A new question came before the court relating to the
payment of damages for the loss caused by the lathi-charge of the police in a situation
where it was unauthorized and unwarranted by law. It was alleged that the police
resorted to lathi-charge willfully and without any reasonable cause and thus damaged
the plaintiff‘s property. The claim was rejected on the ground that the function of the
state to regulate processions and to maintain law and order is a sovereign function.
 Khatri(II) v. state of Bihar29: An important question was raised regarding liability of
government for wrongful arrest and detention. Moving ahead in the direction of new
dimension of the right to life and personal liberty, Justice Bhagwati said: ―Why
should the court not be prepared to forge new tools and devise new remedies for the
purpose of vindicating the most precious of the precious fundamental rights to life and
personal liberty. It may be noted that the Government of India have not signed treaty
which provides for compensation for wrongful arrest and detention. This amply
proves the lack of government‘s concern for the precious of the precious rights of the
people for the sake of discounting its own inefficiency and lawlessness.
 Rudal Shah v. State of Bihar30 :In this case it was laid down a most important
principle of compensation against government for the wrong action of its official the
important judgement was handed down by the Supreme Court against the Bihar
Government for the wrongful and illegal detention of Rudal Shah in Muzaffarpur jail
for as many as 14 yrs after he was acquitted by the Sessions Court in June 1968. The
Court ordered compensation of Rs 30,000 for the injustice and injury done to Rudal
Shah and his helpless family.

28 A.I.R 1981 M.P. 65.


29 (1981) 1 SCC 627.
30 (1983) 4 SCC 141.

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6. CONCLUSION

An employer can be held liable for his employee‘s crime, as a general rule, only where the is
a participant in them within the rules governing. It is a matter of our understanding that
imposition of vicarious liability is the work of the courts rather than of Parliament. Statutes
do occasionally say, in terms, that one person is to be liable for another‘s crime. It is more
common, however, for the courts to detect such as intension in statutes. The reason most
commonly advocated by the judges for holding a person liable under vicarious liability is that
the statute would be rendered nugatory and the will of Parliament thereby defeated if he were
not made liable. It may seem rather odd for the courts to be willing to impose liability for the
acts of another on grounds of expediency when the foundation of the criminal law is that a
person should be made liable only for his personal wrongdoings. But in certain cases it
becomes utmost important to make the principal also liable for the act of his subordinate so as
to protect the interest of both the parties i.e. the injured and the offender and to stop the blame
game amongst the principle and his subordinate.

It can be concluded by saying that though principle of vicarious liability is a civil concept yet
in a recent scenario it has taken a wide role under criminal jurisprudence too. To a certain
extend it is good also but every case decided under criminal law for vicarious liability should
be guided by basic rationality and clear evidence in order to classify the test of just, fair and
equal.

Also, the State too has vicarious liability in criminal offences. Moreover, the principle of
vicarious liability, though not mentioned specifically under any statute, but is well settled by
the decided case laws. According to American Realism, which relies on judge-made laws,
vicarious liability in criminal wrongs is well established through the judgements, which is
incorporated under the Indian Constitution, under Article 141(law declared by Supreme Court
to be binding on all courts).

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BIBLIOGRAPHY

 Allen, C.K., Legal Rights & Duties, Universal Law Publication, 6th Edition,2016
 Mahajan, V.D., Jurisprudence and legal theory, 5th Ed., Eastern Book Company,
Lucknow,2016
 Morrison, Wayne, Jurisprudence: From the Greek to Post Modernism, Routledge
Taylor and Francis group, London, New York, 2016
 Markby, Sir William, Elements of Law, 6th Edition, Oxford at Clarendon Press,
London.
 Paranjape, N.V, Studies in jurisprudence and Legal Theory, Central Law agency, 2018
 Ratanlal Dheerajlal, Code of Criminal Procedure, 17th Edition reprint 2009, Lexis Nexis
Butterworth Wadhwa, Nagpur.
 Sethna, M.J., Contributions to Synthetic Jurisprudence, 7th Edition 1997, Oceana
Publications, N.Y.
 Salmond Sir, John William, Jurisprudence or the Theory of Law, 2010 Edition, Gale
Publications.

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