Vicarious Liability in Criminal Law

By Kratika Singhal, Christ University

Editor’s Note:This paper discusses the doctrine of Vicarious Liability. 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.

TORT LAW OR CIVIL LAW

Essentials to constitute vicarious liability:

1. Relation

There should be some or the other relationship between the wrong doer and the person who gave the order. Relationship can be that of Master-Servant, Principle-Agent, Independent Contractors and alike. Under Independent Contractors two things are there that is Contract of Service and Contract for Service.

Contract of Service- Under such contract you are already in contract and service is of permanent nature. The service is for particular objective. Example Master-Servant relation- taking care of the house for 2-3 years. These are basically general contracts which don’t have any limitation in controlling the acts of others.

Contract for Service- This is a contract for one particular reason. There is a limitation on the power of controlling the acts of another. Example relationship nexus between an  employee and the employer- can only allot the work to the employee, doesn’t control the manner in which work has to be undertaken.

2. Ratification

 Under tort law a person may be liable in respect of wrongful acts or omissions of another in three ways:-

  1. As having ratified or authorised the particular act with the full knowledge of it being tortious;
  2. As standing towards the other in a relation entailing responsibility for wrongs done by that person; and
  3. As having abetted the wrongful act committed by others.

In ratification the relationship can be between any two or more person, it need not be only master-servant relation.

  • Course of Employment

An act is deemed to be done in the course of employment if it is either (a) wrongful act authorised by the master eg. delegation of work by the authorised person to someone unauthorised (b)wrongful & unauthorised mode of doing some act authorised by master i.e unauthorised in the way act is done by the servant.

Case laws

i. Short v. J & Wittendevson Ltd[i]

This is the first case in tort law which gave the control test which need to be fulfilled in order to make the master liable for the acts of servant.

The four criteria to test whether the master is liable are:

  1. Masters power in selection of his servant
  2. Payment of wages or any other remuneration
  3. Masters right to control the method of doing work
  4. Masters right of suspension or dismissal

ii. Dharangadhara Chemical Works Ltd. v. State of Saurashtra[ii]

In this case it was held that the control test has to be diluted, as it is not always possible in these days. But at the same time the master control is not diluted as still he will be made liable in the same extend as before when the servant employed by him has done the wrongful act.

iii. Montreal v. Montreal Locomotive Works Ltd.[iii]

In this case, the court gave few more conditions  to be fulfilled to determine control of master over the acts of the servant. These conditions are:

  1. Control is the desire or extend of control
  2. Ownership of tools
  3. Chance of profit
  4. Risk of loss

iv. Cassidy v. Ministry of Health[iv]

In this case the relationship between Contract of service and Contract for Service was diluted. Lord Danning held that even hospital authority cab ne made liable for the act of professional employed by it for negligence.

v. Lloyd v. Grace, Smith & Co.[v]

In this case plaintiff had 2 houses for herself. She wanted to improve the revenue from the houses so she went to the defendant company for seeking advice. There in the office of the company she was greeted by the managerial clerk. Managerial clerk asked her to sign some papers which he told her to be sale deeds intended to go for public sale. In actual he was making her sign gift deed executed in his own name. He then transferred all the money in his account and then resigned from the office. The Court made the principal liable i.e the company as agent was acting in the capacity of employee.

Reasons why master is held vicariously liable

Historic liability for such an imposition was because of slavery system that existed before. As slave were considered to be the property of the master. So any tortious act committed by the slave was considered to be done on the direction of the master. Therefore slave along with master was made liable.

Now-a-days reasons behind attaching vicarious liability to a master include:

  • Compensation/ Damages: for the purpose of awarding adequate compensation to the injured part and stop the blame game amongst servant and the master.
  • Avoiding exploitation of servant- Hire and fire rule. First directing servant to do tortious act and then after he does it to fire him to avoid the consequences arising from thereof.
  • Respondent Superior: “let the principal be held responsible” or “let the superior make answer”. It is the principle in tort law holding an employer liable for the employee’s/ agent’s wrongful acts committed within the scope of employment of agency.
  • Qui facet alium facet perse: Every act which is done by a servant in the course of his duty is regarded as done by his masters order and consequently it is the same as if it was the masters own act. If A is doing act for X. It will be considered as X himself is doing the act himself and thus is also made liable for the act of A.

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.

Indian Perspective

 IPC makes a departure from the general rule in few cases, on the principle of respondent superior.[vi] 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 committed.[vii]

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.[viii]

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 under Special Statutes

The doctrine of vicarious liability is more frequently invoked under special enactments, such as Defence of India Rules 1962, The India Army Act 1911, The Prevention of Food Adulteration Act 1954, The Drugs Act 1940, etc. A master is held criminally liable for the violation of rules contained under the aforesaid statutes, provided that his agent or servant, during the course of employment, committed such act[ix].  In Sarjoo Prasad v. State of Uttar Pradesh[x] , the appellant, who was an employee, was convicted under the Prevention of Food Adulteration Act 1954 for the act of the master in selling adulterated oil.

Liability of Master

An innocent master is not criminally liable for acts of servants in case of cl 22, of the Motor Spirit Rationing Order 1941, but in the case of absolute prohibition under cl 27A the master is liable.[xi]

Ravula Hariprasada Rao v. State of Madras[xii]

In this case, it was held that the licensed victualler was liable to be convicted although he had no knowledge of the act of his servant. In dealings with case, Blackburn J observed ‘if we hold that there must be a personal knowledge in the licensed person, we would make the enactment of no effect.’ The appeal was allowed in part, and while the conviction and sentence imposed on appellant on the first charge in both the cases were quashed, the conviction and sentence on the third charge in the second case were affirmed.

Liability of Corporations for Criminal Wrongs

Although it was early said that a corporation could not commit a crime,” this view has been rejected. Argument has even supported the opposite extreme that a corporation should be held guilty of any crime if its human agents who commit it so act that their conduct is within the course of their employment as tested by the standards applied to tort liability. In determining whether this contention is justified, the problem first arises whether existing legal concepts permit the imposition of such extreme liability. Second, assuming criminal responsibility can be imposed, under what circumstances is it justified? A corporation can act only through its agents. And as the share-holders are the persons, punished when a corporation is convicted, corporate criminal liability is necessarily vicarious – the liability of shareholders for acts of their agents. Where criminal intent is immaterial, corporate criminal responsibility for the physical acts of agents has long been clear. It should be equally obvious that the distinction between physical acts and mental states of agents presents no logical barrier to imposing vicarious responsibility.” Instead of regarding the problem as one of vicarious liability, however, the courts have stumbled over the theoretical difficulties of ascribing criminal intent to a corporation. It has been affirmed repeatedly that corporations by their very nature are incapable of committing such crimes as bigamy, perjury, rape, and murder. But courts have now progressed to the position of recognizing that corporations can be guilty of crimes involving criminal intent.

i. HL Bolton (Engineering) Co. Ltd. v. T.J. Graham & Sons Ltd.

A company may in many ways be likened to a human body. It has a brain and nerve centre which controls what it does. It also has hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company, and control what it does. The state of mind of these managers is the state of mind of the company and is treated by the law as such[xiii].

 ii. State of Maharashtra v. Syndicate transport Co (P) Ltd.[xiv]

In this case, there was an agreement that bus would be transferred in the name of the complainant, and would be run by the company on the hire purchase agreement till the satisfaction of the advance money.

But the bus was not transferred to the complainant, as per the agreement. Consequently, the complainant moved to the trial magistrate who booked the company under sections 403[xv], 406 and 420, for violating the terms and conditions of agreement. The company preferred a revision before the Sessions Court to quash the charge against the company. The Session’s Judge was of the view that since a corporate body acts only through its agents or servants, the mens rea of such agents or servants can’t be attributed to the company, and he referred it to High Court for quashing charges. Ned so as to make

While accepting the reference and quashing the charge, the Court sent back the case for trial in accordance with law. The court said that the scope within which criminal proceedings can be brought against institutions which have become so prominent a feature of everyday affairs’ ought to be widened so as to make corporate bodies indictable for offences flowing from the acts or omissions of their human agents. Ordinarily, a corporate body like a company acts through its managing directors or board of directors or authorised agents or servants and the criminal act or omission of an agent including his state of mind, intension, knowledge or belief ought to be treated as the act or omission, including the state of mind, intension, knowledge or belief of the company.

iii. Aligarh Municipal Board v. Ekka Tonga Mazdoor Union[xvi]

In this case court held that there is no doubt that a corporation is liable to be punished by imposition of fine and by sequestration for contempt for disobeying orders of competent courts directed against them. A command to a corporation is infact a command to those who are officially responsible for the conduct of its affairs. If, they after being apprised of the order directed to the corporation, prevent compliance or fail to take appropriate action, within their powers, for the performance of the duty of obeying those orders, they and the corporate body are both guilty of disobedience and may be punished for contempt.

Liability of state for acts of employees

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 Calcutta[xvii], a Full Bench of nine judges of the Supreme Court overruled its earlier decision in Director of Rationing and Distribution v. Corpn of Calcutta[xviii] 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[xix] 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.

Responsibilities of Licensees

It is well-settled I England as well as in India that a licensee is responsible for the acts of his employee done within the scope of his authority, although, contrary to the instructions of the licensee. In order to fix a licensee with a liability for the acts of his servants, personal knowledge of the licensee is not always necessary. Otherwise, the very purpose of the enactments granting licenses to persons of good character would stand defeated.[xx]

In Emperor v. Mahadevappa Hanmantappa[xxi], the accused held a licence under Indian Explosive Act 1884, to manufacture gun powder. According to the licence, the manufacturing could take place in a building exclusively meant for that purpose and separated from any dwelling place, highway, street, public thoroughfare or public place by a distance of 100 yards. The accused lived in a village and constructed a building outside the village which complied with this condition and employed women to manufacture gun powder there. One day, the servant took the necessary material for the manufacture of the gun powder, went to the house of accused in the village and performed part of the process of manufacture there. At that time there was an explosion. The accused was charged with breach of conditions of his licence. The accused was held to be liable for the same, in view of the fact that what the servant did was in furtherance of her masters business and not in pursuance of any purpose of her own. What she had done was within the general scope of her employment and the breach of the condition of the licence was committed when she was so engaged.

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.

Edited by Hariharan Kumar

 

[i] (1946) 62 T.L.R. 427

[ii] 1957 AIR 264

[iii] (1947) 1 D.L.R. 161

[iv] [1951] 2 KB 343

[v]  [1912] AC 716

[vi] Gour Hari Singh, The Penal Law of India, Vol II, 11t Ed., 2000, pp 1467-1472

[vii] Munivel vs. State of T.N. AIR 2006 SC 1761

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

[ix] Chairman, Railway Board v. Chandrima Das(2000) 2 SCC 465.

[x] AIR 1961 SC 631. See also State of Orissa v. K Rajeshwar Rao AIR 1992 SC 240.

[xi]  KD Gaur, Criminal Law: Cases and Materials, 4th Ed., 2005, p 180

[xii] AIR 1951 SC 204

[xiii] HL Bolton (Engineering) Co. Ltd. v. T.J. Graham & Sons Ltd. [1957] 1QB 159 at 172

[xiv] AIR 1964 Bom 195

[xv] S.403 deals with- Dishonest misappropriation of the property, s.406-Punishment for criminal breach of trust and 420-Cheating and dishonestly inducing delivery of property.

[xvi] AIR 1970 SC 1767

[xvii] AIR 1967 SC 997

[xviii] AIR 1960 SC 1355

[xix]1990 AIR 513

[xx] Hari Singh Gour, The Penal Law of India, vol 1, 11th Ed., p 146

[xxi] AIR 1927 Bom 209

One Reply to “Vicarious Liability in Criminal Law”

  1. Would like to get in touch with Mr. Hariharan Kumar as need to seek his valueable guideience for my case. I am the complainant .

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