Crimes and Other Wrongs

BY ANAGHA LAKSHMY RAMAN, NUALS

Editor’s Note: The author has given a basic understanding about what is crime. How it originated and is perceived by law. The different scope it has and how it differs from other wrongs.  

CONSTITUENTS OF A CRIME

1)  It is an act of commission or omission, on the art of human being, that is considered harmful by the state;

2)  The transgression of such harmful acts is prevented by a threat or sanction of punishment administered by the state; and

3) The guilt of the accused s determined after the accusation against him has been investigating in legal proceedings of a special kind in accordance with the provisions of law.[1]

DEFINITIONS

Though it is different to give a precise definition of a crime, many scholars have, from time to time, while focusing on one or the other dimension of a prohibited act, defined he term crime.

William Blackstone, in his book, Commentaries on the Laws of England, has defined Crime as “an act committed or omitted in violation of public law forbidding or commanding it.”[2] However, the term ‘public law’ has different accepted connotations.

Austin perceived it to be identical with constitutional law, while some other jurists equate it with positive law or ‘municipal law’. Each of these interpretations has its own merits and demerits. Perhaps, visualizing these inadequacies, Blackstone gave another definition, “a violation of the public rights and duties due to the whole community considered as a community.”[3]

Sergeant Stephen, modified this definition to read, “A crime is a violation of a right, considered in reference to the evil tendency of such violation as regards the community at large.” Again, this definition is inadequate as the essential characteristic of a crime is not the violation of a right, but the doing of prohibited acts (e.g. possession of counterfeit coins).

Both Blackstone and Stephens have stressed the harm or injury committed to the community at large. Though this may be true for many crimes, not all crimes affect the community at large. Also, there may be acts that are illegal and cause harm to a large section of the community but still are not considered crimes. E.g., the negligent management of a company’s affairs.

John Gillin has also defined crimes in terms of harm done to others. Crimes, he says, is “…an act that has been shown to be actually harmful to society, or that is believed to be socially harmful by a group of people that has the power to enforce its beliefs, and that places such act under the ban of positive penalties.”[4]

Professor SW Keeton has stated that “A crime today would seem to be any undesirable act, which the state finds most convenient to correct by the institution of proceedings for the infliction of a penalty, instead of leaving the remedy to the discretion of some injured person.”

Professor Goodhart has simply defined crime as any act which is punished by the state.

Crime is defined in Halsbury’s Laws of England as “an unlawful act or default which is an offense against public and renders the person guilty of the act or default liable to legal punishment.”[5]

Other important and noteworthy definitions of crime are as follows. Crime is a serious anti-social action to which the state reacts consciously by inflicting pain (either punishment or correctional measures).[6] Michael and Adler state that, “the most precise and least ambiguous definition of crime is that it which defines it as a behavior which is prohibited by the criminal code.”[7]

Section 40 of the IPC 1860 states that ‘an offence denotes a thing made punishable by the code.’ Russell, in his classic work, On Crimes says that crime is the result of human conduct which the penal policy of the state seeks o prevent.[8]

BA Wrotley combines moral and legal element and puts forth his definition as follows, “A crime is an offence against the law, and is usually an offence against morality, against a man’s social duty to his fellow members of society; it renders the offender liable to punishment.”

ORIGIN OF CRIMINAL LAW

Understanding the origins of criminal law helps understand its scope better. Broadly, there are four theories regarding the origin of criminal wrong, namely, civil wrong, social wrong, moral wrong and group conflict theory.

1)  The civil wrong theory regards criminal law to have originated from torts.

According to this theory, initially the injured parties sought redress to wrongs done to them, and later, some wrongs came to be realized as affecting the society at large. Thus the group, and later the state, took over the charge of the treatment in its own hands. This may be true for crimes like deceit, defamation etc, but proves inadequate for crimes such as treason, sedition etc that, from the very beginning were regarded as wrongs against society.

2)  Social wrong theory postulates that criminal law originated as a national process of a unified society.

Thus society makes regulations to prevent the repetition of wrongs. Again, though this theory may hold true in cases of serious offences like murder, robbery, dacoity etc, it does not explain how criminal law developed over the course of time.

3)  The moral wrong theory says that criminal law originated in and is the crystallization of morals, traditions and the like.

Customs that persisted over longs periods of time, got an ethical foundation and its violation came to receive hostile reaction from the society. Penal laws and punishments were formulated against such acts. However, this explains only conventional crimes against persons and

property, but not many economic and other social crimes like hoarding, tax evasion etc.

4)  The group conflict theory holds that criminal law developed in the conflicts between rival groups in order to protect each other’s interests. Thus, through criminal law, the powerful group forces the state to prohibit acts that may endanger their position. However, offences against the state and public tranquility etc are not explained by this theory, though some offences relating property interests may be explained away.

SCOPE

I. ECONOMIC CRIMES AGAINST THE SOCIETY

In a Laissez-faire economy, the waste of property is, like its accumulation, a matter of private concern. Today, however, there are only a small percentage of people who still believe in the sanctity of property, immunization from official interference or regulation. An important factor in the change in public philosophy has been the total war in the twentieth century. Outside the emergencies of war conditions, the growing recognition of the social function and use of property has led to more permanent change in the legal values.[9]

In India, since the early 90s, economic have caused havoc in the Government managed institutions like Banks, Public Sector undertakings, Telecom department, Insurance Companies etc. this has become a serious concern to the government and the people.

Even as early at 1860, when the penal code was enacted, provisions for cheating (Sec 420), criminal breach of trust (Sec 409), Counterfeit of coins (Sec 232) etc were provided to deal with these issues. However, with the development of technology, means of transport and communication etc has also resulted in the increase of economic crimes. Economic crimes are committed by intelligent but devious individuals involving huge sums of public or government money.

The main types of such economic crimes include primary and secondary market frauds, bank, insurance, non-banking finance company frauds, issuance of fake currencies and stamps etc. Other forms include tax evasions, money laundering, smuggling, evasion of excise duties, cultural objects’ theft, trade in human body parts, racketeering in employment and travel documents etc.

Several legislations have been made consequently to counter these crimes such as the Income Tax Act, Customs Act 1962, COFEPOSA, 1974, Central Excise and Salt Act, 1944, Banking Regulation Act, 1949, Passport Act, 1920 etc.

II SEXUAL PERMISSIVENESS AND THE CRIMINAL LAW

Certain types of individual behavior, once severely condemned by prevalent concepts of morality and public order, have become widely tolerated and more acceptable to society. This trend is seen greatly in the area of sexual behavior as can be seen from the growing abolition of criminality of homosexual conduct between consenting adults carried out in private. The rapidly growing number of jurisdictions that have abolished, or greatly limited, the criminality of abortion is yet another example.

The greater permissiveness towards homosexuality is essentially a product of changed ideas of social morality.[10] Nowadays, homosexuality is not considered morally so blameworthy that it requires criminal attention. The repealing of Section 377 of the IPC in India in 2009 was following the recognition of this fact.

The changing view on abortion is, however, a product of social change. It is a response to the worldwide population growth- now recognized as one of the major dangers to the civilized survival of mankind. Also, the realization of the fact that millions of illegal abortions have long made a mockery of the law, and that growing pressure towards abortion will make legal sanctions increasingly ineffective may be yet another contributory factor to this. Until recently, the great majority of criminal laws legalized abortion only where the life (and more dubiously the health) of the mother were in danger [11], a rapidly growing number of laws now greatly widens the grounds of permissible abortions, or in some countries even abolishes its criminality altogether.

III ENVIRONMENTAL POLLUTION AND THE CRIMINAL LAW

An increasing use of criminal sanction, which is often complimentary to damages and administrative sanctions, has resulted from the recognition of the dangers of massive pollution of the environment, through despoliation of the land, water and the air, by industrial waste, chemicals, oil, the dumping of garbage, the indiscriminate use of pesticides etc. the awareness has dawned that it threatens the very conditions of social survival. Thus an area, which until recently, has remained outside the legal regulation altogether has become a major object of social condemnation, supported by criminal sanctions.

Under the IPC, section 268 defines ‘public nuisance’. In the section following public nuisance, several specific instances of public nuisances and their punishments are given. Those important from the perspective of environmental protection are the following. Sec.277 covers water pollution, Sec.278 atmospheric pollution, Sec.284 deals with negligent conduct with respect to poisonous substances. Ss. 290 and 291 general sections dealing with punishments for public nuisances not otherwise provided for and for continuance even after issuance of injunction order.

Several legislations have been made for the protection and conservation of the same in several countries across the world. India also has passed many laws such as the Biological Diversity Act, 2002, Environment (Protection) Act, 1986, Forest (Conservation) Act, 1980, Air (Prevention and Control of Pollution) Act, 1981, Water (Prevention and Control of Pollution) Act, 1974, the Wildlife (Protection) Act, 1972 etc.

There are some provisions under the environmental protection laws, the violation of which is visited with penal consequences. Therefore, such acts of violations are offences and hence criminal in nature. For instance, Sec 51 of the Wildlife (Protection) Act, 1972 provides penalties for commission of offences defined and provided for in the Act.

IV CYBER CRIMES

Today, cyber crimes are emerging as a serious threat. Governments, police departments and intelligence units have started to take serious initiatives for counter this threat. Special cyber cells have been created by the Indian police, and steps have to been taken to educate the personnel and the public on the issue.

The emergence of internet and increasing reliance on it for communication, e-commerce etc, has not just improved opportunities and made our lives easier, but has also provided scope for a new type of crime-cyber crime. Cyber crime is a term used to broadly describe criminal activity in which computers or computer networks are a tool, a target, or a place of criminal activity and include everything from electronic cracking to denial of service attacks. It is also used to include traditional crimes in which computers or networks are used to enable the illicit activity.[12]

The several forms of cyber crimes are- unauthorized access and hacking, Trojan horse, virus and worm attack, e-mail and Internet Relay Chat (ICR) related crimes, e-commerce, investment related crimes, defamation, breach of privacy and confidentiality etc.

The criminal activities traditional in nature can be dealt with using provisions of the IPC dealing with forgery, defamation, theft, fraud etc. The Information Technology Act, 2000 is a legislation that provides ways to deal with cyber crimes. This Act aims to provide the legal infrastructure for e-commerce in India. The legal framework provides sanctity to electronic records and other activities carried out by electronic means and also grants acceptance to contracts expressed by electronic means of communication. The Act provides for Regulation of certifying authorities, cyber regulation appellate Tribunal, defines the offences and punishments for specific offences (chapter XI) etc.

V CRIMINAL LAW IN THE WELFARE STATE

A whole new area of criminal law developed out of the steadily increasing responsibilities of the modern state for the maintenance of certain crucial standards demanded by the proper functioning of a modern and industrialized society. These standards are embodied in a great variety of statutory regulations. They concern safety appliances and sanitary standards in factories and mines, the minimum standard in housing accommodation, purity and minimum quality of food stuff, drugs and medical preparations offered to the public, compliance to the statutory obligations, unemployment insurance and other forms of social security, registration of professional and trade qualifications etc. The statutes mostly provide for the fulfillment of such obligations mainly in the form of fines.

The public welfare offences are essentially more standardized and such offences are considered ought to be punished strictly in the interest of public welfare, irrespective of the considerations of guilt. A vast proportion of these offences are imputable to corporations rather than the individuals such as in the case of social-insurance obligations, food and health standards etc. it is in fact desirable that the corporations are held liable instead of individuals. The very large number of cases under such offenses makes the determination of individual guilt very difficult thereby justifying the imposition of strict liability in the light of social welfare.

VI CORPORATION AND CRIMINAL LIABILITY

The corporation, today, is a predominant unit and a normal defendant, in actions of economic and social impact has a profound effect on this branch of criminal law. A corporate body is, by the law, equated to physical individual, but it is not an individual. Except for the purely administrative or welfare offence, the criminal law appears to be individual. It can direct itself to corporate body only by a further process of imputation. According to the criminal responsibility, the corporation itself divides into several aspects.

First – a clear distinction should be made between vicarious liability of the master for the acts of the servant, and imputation of the actions of a person in the employment, or acting on behalf of the corporation which are properly imputable to the latter. Imputed liability is not vicarious but original.

Secondly- the nature of the criminal sanctions imposes certain obvious limitations on the categories of crimes which may be imputed to a corporation. Corporations cannot be executed or imprisoned and therefore would exclude certain grave offences like murder rape etc and neither practice nor doctrine has hitherto extended responsibility off corporation to these offences.

Third- the rejection of vicarious as distinct from imputed, liability in the field of criminal law makes it necessary to define the type of relationship to make to proper to impute the criminal action of an individual to the corporation.

V COMPARISON BETWEEN CRIMES AND OTHER WRONGS

5.1 MORALITY, ETHICS AND CRIMINAL WRONGS

The word ‘crime’ is derived from the Greek word ‘krimos’, which is synonymous with the Sanskrit word ‘karma’ which means social order. It is also derived from a Latin word meaning ‘to accuse’. Combining the modern meaning of both the roots, ‘crime’ is ‘a most validly accusable act’.[13] Thus ‘crime’ would be applicable “to those acts that go against the social order and are worthy of serious condemnation.”[14] Garafalo, an eminent criminologist, says, “Crime is an immoral and harmful act that is regarded as criminal by public opinion because it is an injury to so much of the moral sense as to community-a measure which is indispensable for the adaptation of the individual to society.”[15]

However, Criminal law is narrower than morality. Crime involves some definite, gross, undeniable injury caused by some overt action. Ingratitude, hard heartedness, loathing etc are not crimes and hence not punishable, though they may be considered wrongs from a moral perspective. The overt acts or omissions must be capable of being distinctly proven to inflict some definite evils either on specific persons or at the community at large. Here, the term evil refers to a ‘harm’ and not an ethical or moral value.

Considering wrongs and crimes to be two intersecting circles, the intersection of the two would be the crimes such as rape, robbery, murder etc that are wrongs even without the backing of criminal law.

Distinction between the two can be seen from several instances. While a nieghbour may be morally bound to help a starving neighbour, (if he is capable to do so) it is not a legal obligation to do so. They are not sufficiently serious for an action in crimes or even law for that matter. They are simply immoral or ethical wrongs. On the other hand, wrongs like nuisance, robbery, murder, rape etc are sufficiently serious for legal action.

There are many acts that are prohibited not because of their immoral nature, but for social expediency and other factors. For instance, traffic offences, customs, hoarding etc. Other harmless acts like vagrancy and loitering, possessions of drugs, weapons etc (even without intent to use them) are also criminal in nature.

5.2 CIVIL LAW AND CRIMINAL WRONGS

5.2.1 TORT AND CRIMES

The wrongs serious enough for state actions are responded to by the state in two ways, at the instance of the individual or group, or by itself taking a direct action. i.e., when the gravity or magnitude of injury is more concentrated on the individual, the wrong doer is asked to compensate the injured in terms of money. E.g. libel, nuisance, negligence etc. this type of wrong is termed ‘civil wrong’ or ‘tort’ and civil remedies are open for such wrongs.

Where the gravity or magnitude of the offence is more concentrated on the public at large, public condemnation (as in the case of moral wrongs) and compensation (as in the case of civil wrongs) is ineffective. Such wrongs, like dacoity, murder, rape, treason etc destroy the very fabric of law and order and jeopardize the state’s existence or create widespread panic. Therefore, it becomes appropriate that the state stresses punishment for the wrong doer. These are called ‘public wrongs’ or ‘crimes’ for which criminal proceedings are instituted by the state, and the culprit is punished in a court of law if found guilty.[16]

However, it is not always necessary that all wrongs are either civil or criminal. There are certain wrongs, called ‘felonious tort’ such as deceit, trespass, malicious prosecution etc that fall under the category of tort and crimes depending on whether it is looked upon from the point of view of the individual or as a menace to the society. Thus in all such cases, two different kinds of actions are open against the wrong doer. In India, the rule of ‘merger of tort in felony’ (and later its modified version that the civil wrong is merely suspended till criminal prosecution for the crime) is not accepted. An injured person can maintain an action for damages for a tortious act, even though it amounts to a crime, without, in the first instance, instituting criminal proceedings against the offender.

Though both ‘tort’ and crime are violation of right in rem [17], i.e., right vested in some determinate person and available against the world at large and secondly, in case of both wrongs, the rights and duties are fixed by law irrespective of the consent of the parties, unlike contract. However there are differences between the two-

1)  A tort is a private wrong against an individual whereas crime is a public wrong which affects the society at large.

2)  In tort, the wrong doer has to compensate the injured; in a crime he is punished by the state.

3)  In the case of a tortuous liability, the immediate purpose of the suit is to provide compensation to the injured, whereas in a criminal trial, the criminal is punished and sent to jail, asked to pay fine etc not only for the sake of redress but also to set an example[18] for like minded people do not indulge in such activities again.

4)  In a tort, the action is brought by he injured, whereas in a crime, the proceedings are initiated by the state except for offences such as adultery, defamation etc where complaint has to be made by the aggrieved party.

5)  The emphasis is laid more on the wrong committed by the accused in a criminal trial, but in a tort, the emphasis is on the victim’s injury. He is free to initiate the suit either in a civil court or a consumer forum to seek damages and compensations.

6)  The burden of proof differs as also the standard of proof required, proof beyond reasonable doubt in crimes as against, preponderance of probability in a tort.

5.2.2 BREACH OF CONTRACT AND CRIMES

A few dangerous breach of contract are criminally punishable and few types of debt frauds are crimes. But on the whole, the law in this area is weak and under enforced. For the most part, the breach of contract is a crime. Incurring a contracted debt by deception is often criminal, but getting a contractual benefit and then dishonestly avoiding paying for it generally not. The remedy for the aggrieved party is to bring a civil action for debt damages, specific performance or injunction. A contracting party who fails to comply with the court’s order of specific performance or injunction may be sent to prison for contempt of court, but it is regarded civil, rather than criminal.

5.3 CRIME AS A SOCIAL WRONG

The definition given by John Gillin is a sociological definition of crime. But this view also fails to explain a number of criminal behaviours. When the legislature enacts that a certain act shall become or cease to become a crime, it does not change the nature of the act, but merely its legal classification. In other words, a mere change in the name attributed to the behaviour changes without any change to the ‘social reaction’ to the act remains the same for, the ‘social interest’ has remained unaltered. E.g. though dowry is a crime, there is hardly any change in the people’s attitude. In fact, perhaps it is more evident today with more reported cases of dowry deaths each year.[18]

5.4 CRIMES AND PROCEDURAL WRONGS

Wrongs sometimes are differentiated on the basis of the difference in the procedure initiated. Austin says, “A wrong which is pursued by the sovereign or his subordinates is a crime. A wrong which is pursued at the discretion of the injured party and his representatives is a civil injury.”

However, there are a number of aoffences in which the prosecution can be initiated only at the instance of the injured party, just like in torts. No court will take cognizance of the offence of adultery and of criminal elopement (IPC ss 497, 498), except on complaint by the husband of the woman.

Kenny gives a modified version, “Crimes are wrongs whose sanction is punitive, and is in no way remissible by any private person, but is remissible by the Crown alone, if remissible at all.”[19] However, there are a number of compoundable offences that are remissible by some gratification from the accused.[20]

5.5 CRIMES AND PUBLIC WRONGS

The two definitions given by Blackstone and later by Stephen, limit the scope of crime to violations of ‘public law’. As such they would cover only political offences, i.e. offences against the state which, in actuality only cover a small portion of criminal law. If ‘public law’ is taken as an equivalent of ‘positive law’ or ‘municipal law’, it would become too wide, covering all legal wrongs. It cannot be interpreted to include both constitutional law and criminal law, as it would be fallacious to define crime in terms of constitutional law. Stephen’s subsequent definition also falls short as it covers only rights. Criminal law also encompasses omissions in the performance of duties required by law. Willful omission to provide food, clothing, shelter to a child by a father [21] a police officer remaining passive to another police officer torturing a suspect for extorting confession etc amount to crimes [22]

These definitions also stress for crimes to be breaches of law which injure the community. As has already been seen, neither are all crimes are injurious to community, nor are all acts injurious to community, crimes. In fact, some times, acts advantageous to the community or society as a whole may also be considered a crime as in the case of R v.Ward [23]

BIBLIOGRAPHY

[1] Kenny’s Outline of Criminal Laws, 19th ed, JWC Turner, Appendix, pp.4, 5.

[2] Sir William Blackstone, Commentaries on the Laws of England, vol. 4, 17th ed, 1830, p. 5.

[3] Ibid.

[4] John Gillin, Criminology and Penology, 3rd edn, New York, p. 9

[5] Halbsbury’s Laws of England, 3rd ed, p. 271.

[6] WA Bonger, Introduction to Criminology.

[7]  Michael and Adler, Criminal Law and Social Science, 1933.

[8] Russell on Crime, JW Cecil Turner (ed), vol 1, 12th ed, Stevens & Sons, London, p.39.

[9] W. Friedmann, Law in a changing Society, 2nd edn, p. 195

[10] Strawson, Social morality and individual ideal, 37 Philosophy 1 (1961)

[11] GL Williams, Sanctity of life and the Criminal Law, 1975, ch. 5

[12]  Dr. B. Muthukumaran, Cyber Crime Scenario in India, available at http://www.gcl.in/downloads/bm_cybercrime.pdf, last seen on 31/03/2011

[13]  KS Pillai, Principles of Criminology, TLL, 1920, p.6.

[14]  S.S. Huda, The Principles of the Law of Crimes in British India, TLL, 1902, p 1

[15] Criminology, Little Brown, Boston, 1914, p. 59

[16] D. Gaur, A Text Book on Indian Penal Code, 2nd Edn., Oxford & IBH1998, p. 59-60.

[17] Ibid.

[18] Section 3 of the Dowry Prohibition Act 1961 prescribes punishment for giving dowry or taking of dowry up to minimum of six months’ imprisonment and fine of Rs. 10,000.

[19] Kenny’s Outline of Criminal Laws, nineteenth ed, JWC Turner, Appendix, p. 539.

[20] Code of Criminal Procedure 193, s 320(1) and (2), for offences that may be compounded.

[21] R. v. Russet (1993) VLR 59.

[22] Hari Singh Gaur, The Penal Law of India, vol 1, 10th  ed, 1983, pp 247-248.

[23] (1836) 4 A and E 384

 

 

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