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criminal_laws:vicarious-liability

Is Vicarious liability unkown to criminal law?

Doctrine of Vicarious Liability: Vicarious liability is also known as one of the limb of joint responsibility. This type of liability is a legal liability. It empowers the court to hold a person liable for the acts of other. The vicarious liability in criminal matters assigns guilt or criminal liability to a person for wrongful acts committed by someone else. 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, Employment cases.

History

Historically such liability was developed when there was slavery system, that existed before. Slaves were considered to be the property of the master. So any tortuous act committed by the slave was considered to be done on the direction of the master. The slave along with master was made liable.

Present position

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

  1. This is necessary for the purpose of awarding adequate compensation to the injured party and to stop the blame game amongst servant and the master.
  2. There is requirement for avoiding exploitation of servant in Hire and fire rule. Under this rule the employer directs servant to do tortuous act and then after he does it to fire him to avoid the consequences arising from thereof.
  3. There is development of principle of Respondent Superior. Such rule means “let the principal be held responsible” or “let the superior make answer”.
  4. There is development of the maxim “Qui facet alium facet perse”. The maxim means every act which is done by a servant in the course of his duty is regarded as done by his master's order and consequently it is the same as if it was the master's own act.

Tort law

Essentials to constitute vicarious liability:

Relationship

There should be some relationship between the wrong doer and the person against whom liability is charged. Relationship may be of:

  1. Master-Servant,
  2. Principal-Agent,
  3. Independent Contractors and
  4. alike.

Independent Contractors are of two types:

  1. There is Contract of Service and
  2. There is Contract for Service.

Contract of Service: Under such contract one is already in contract and service is of permanent nature. The service is for particular objective. These are basically general contracts.

Contract for Service: This is a contract for one particular reason. There is a limitation on the power of controlling the acts of another.

Ratification

A person may be liable in respect of wrongful acts or omissions of another in three ways:

  1. The act is ratified or authorised with the full knowledge of it being tortuous.
  2. Two person stand towards each other in a relation entailing responsibility for wrongs done by that person; and
  3. One person abetted the wrongful act committed by other.

An act is deemed to be done in the course of employment if it is

  1. wrongful act authorised by the master eg. delegation of work by the authorised person to someone unauthorized
  2. wrongful & unauthorised mode of doing some act authorised by master i.e unauthorised in the way act is done by the servant.

Short v. J & Wittendevson Ltd1) 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. There are four guidelines to test whether the master is liable. Those 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.

In Dharangadhara Chemical Works Ltd. v. State of Saurashtra2) 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 extent as before when the servant employed by him has done the wrongful act.

In Montreal v. Montreal Locomotive Works Ltd.3) 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 extent of control
  2. Ownership of tools
  3. Chance of profit
  4. Risk of loss.

In Cassidy v. Ministry of Health4) the relationship between Contract of service and Contract for Service was diluted. Lord Danning held that even hospital authority was made liable for the act of professional employed by it for negligence.

In Lloyd v. Grace, Smith & Co.5) plaintiff had two houses for herself. She wanted to get the money from the houses. She went to the defendant company for seeking advice. In the office of the company she was greeted by the managerial clerk. The clerk asked her to sign some papers. 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. Then he resigned from the office. The Court made the principal Company liable. The agent was acting in the capacity of employee.

Vicarious liability in criminal law

A person is criminally liable for the acts of another if they are a party to the offence. So the doctrine of vicarious liability is considered to be fundamentally flawed. Under criminal law, it is based on “respondent superior” principles. But it is applied in criminal law if a person is the perpetrator of a crime and whose actus reus is physically committed by someone else. It is believed that person merely performing the actus reus on the direction of another. He is not innocent. So he is 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. 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. Levinson6)

Indian Law

IPC makes a departure from the general rule. It accepts the principle of respondent superior in criminal matters. A master is liable under various sections of the IPC for acts committed by his agents or servants. 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 that employment.

  1. 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.Munivel vs. State of T.N.7)
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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 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.

Case-laws

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.Chairman, Railway Board v. Chandrima Das8)

In SARJOO PRASAD V. STATE OF UTTAR PRADESH9) 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. See also State of Orissa v. K Rajeshwar Rao.10)

An innocent master is not criminally liable for acts of servants. In the case of absolute prohibition the master is liable. In Ravula Hariprasada Rao v. State of Madras11) 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.

An employer can be held liable for his employee’s crime as a general rule only where there is a participation in them within the rules governing. Statutes do occasionally that one person is to be liable for another’s crime. It is more common for the courts to detect such as intension in statutes. 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. Though principle of vicarious liability is a civil concept yet in recent scenario it has taken a wide role under criminal jurisprudence too.

Liability of Corporations for Criminal Wrongs

A corporation can act only through its agents. The share-holders are the persons to be punished when a corporation is convicted. The corporate criminal liability is necessarily vicarious. It is the liability of shareholders for acts of their agents. Where criminal intent is immaterial, corporate criminal responsibility for the physical acts of agents can be fixed as there is no distinction between physical acts and mental states of agents. So the view that corporation could not commit a crime has been rejected. A corporation should be held guilty of any crime if its human agents who commit it so act that their conduct are within the course of their employment as tested by the standards applied to tort liability. In determining such liability the following principles are enunciated:

  1. Whether existing legal concepts permit the imposition of such extreme liability.
  2. Assuming criminal responsibility can be imposed, under what circumstances is it justified?
  3. In HL Bolton (Engineering) Co. Ltd. v. T.J. Graham & Sons Ltd.12) 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.
  4. In State of Maharashtra v. Syndicate transport Co (P) Ltd.13) 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. The bus was not transferred to the complainant, as per the agreement. Consequently, the complainant moved to the trial magistrate who charged the company under sections 403, 406 and 420 for violating the terms and conditions of agreement. S.403 deals with dishonest misappropriation of the property. Section 406 provides punishment for criminal breach of trust and Section 420 provides punishment for cheating and dishonestly inducing delivery of property.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. While quashing the charge, the Court sent back the case for trial in accordance with law. The court held 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. 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, intention, knowledge or belief ought to be treated as the act or omission, including the state of mind, intension, knowledge or belief of the company.
  5. Aligarh Municipal Board v. Ekka Tonga Mazdoor Union14) the 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 in fact 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.
  6. 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. The state was not to be proceeded against under the IPC or under any other statute. In Superintendent and Remembrance of Legal Affairs, West Bengal v. Corpn of Calcutta15) a Full Bench of nine judges of the Supreme Court overruled its earlier decision in Director of Rationing and Distribution v. Corpn of Calcutta16) 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 Police17) 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.
  7. Responsibilities of Licensees: In England as well as in India, 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. In EMPEROR V. MAHADEVAPPA HANMANTAPPA18) 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. What she had done was within the general scope of her employment. The breach of the condition of the licence was committed when she was so engaged.

About the Author

© C.R Nanda Academy is an initiative by Adv. Chittaranjan Nanda to spread legal awareness among Indian Citizens.

1)
1946 62 T.L.R. 427
2)
1957 AIR SC 264
3)
1947 1 D.L.R. 161
4)
1951 2 KB 343
5)
1912 AC 716
6)
1920 2 All ER 823
7)
AIR 2006 SC 1761
8)
2000 2 SCC 465
9)
AIR 1961 SC 631
10)
AIR 1992 SC 240
11)
AIR 1951 SC 204
12)
1957 1QB 159 at 172
13)
AIR 1964 Bom 195
14)
AIR 1970 SC 1767
15)
AIR 1967 SC 997
16)
AIR 1960 SC 1355
17)
AIR 1990 SC 513
18)
AIR 1927 Bom 209


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