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criminal_laws:vicarious-liability [2021/05/25 18:20] LawPage ↷ Links adapted because of a move operation |
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+ | ====== Is Vicarious liability unkown to criminal law? ====== | ||
+ | |||
+ | **Doctrine of Vicarious Liability**: | ||
+ | It empowers the court to hold a person liable for the acts of other. | ||
+ | The vicarious liability in criminal matters | ||
+ | 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: | ||
+ | - 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. | ||
+ | - 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. | ||
+ | - There is development of principle of Respondent Superior. Such rule means “let the principal be held responsible” or “let the superior make answer”. | ||
+ | - There is development of the maxim “[[legal_language: | ||
+ | |||
+ | ===== 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: | ||
+ | - Master-Servant, | ||
+ | - Principal-Agent, | ||
+ | - Independent Contractors and | ||
+ | - alike. | ||
+ | |||
+ | Independent Contractors are of two types: | ||
+ | - There is Contract of Service and | ||
+ | - 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: | ||
+ | - The act is ratified or authorised with the full knowledge of it being tortuous. | ||
+ | - Two person stand towards each other in a relation entailing responsibility for wrongs done by that person; and | ||
+ | - One person abetted the wrongful act committed by other. | ||
+ | |||
+ | An act is deemed to be done in the course of employment if it is | ||
+ | - wrongful act authorised by the master eg. delegation of work by the authorised person to someone unauthorized | ||
+ | - 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 Ltd**((1946 62 T.L.R. 427)) 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: | ||
+ | - Masters power in selection of his servant | ||
+ | - Payment of wages or any other remuneration | ||
+ | - Masters right to control the method of doing work | ||
+ | - Masters right of suspension or dismissal. | ||
+ | |||
+ | In **Dharangadhara Chemical Works Ltd. v. State of Saurashtra**((1957 AIR SC 264)) 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**.((1947 1 D.L.R. 161)) the court gave few more conditions | ||
+ | - Control is the desire or extent of control | ||
+ | - Ownership of tools | ||
+ | - Chance of profit | ||
+ | - Risk of loss. | ||
+ | In **Cassidy v. Ministry of Health**((1951 2 KB 343)) 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**.((1912 AC 716)) 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 | ||
+ | |||
+ | |||
+ | 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; | ||
+ | ==== Indian Law ==== | ||
+ | <wrap em>IPC makes a departure from the general rule. It accepts the principle of respondent superior in criminal matters</ | ||
+ | |||
+ | - **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.**((AIR 2006 SC 1761)) | ||
+ | - **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, | ||
+ | - **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 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, | ||
+ | |||
+ | In **SARJOO PRASAD V. STATE OF UTTAR PRADESH**((AIR 1961 SC 631)) 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.((AIR 1992 SC 240)) | ||
+ | |||
+ | 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 Madras**((AIR 1951 SC 204)) 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. | ||
+ | |||
+ | - Whether existing legal concepts permit the imposition of such extreme liability. | ||
+ | - Assuming criminal responsibility can be imposed, under what circumstances is it justified? | ||
+ | - In **HL Bolton (Engineering) Co. Ltd. v. T.J. Graham & Sons Ltd**.((1957 1QB 159 at 172)) 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. | ||
+ | - In **State of Maharashtra v. Syndicate transport Co (P) Ltd**.((AIR 1964 Bom 195)) there was an agreement that bus would be transferred in the name of the complainant, | ||
+ | - **Aligarh Municipal Board v. Ekka Tonga Mazdoor Union**((AIR 1970 SC 1767)) 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, | ||
+ | - **Liability of state for acts of employees**: | ||
+ | - **Responsibilities of Licensees**: | ||
+ | ===== About the Author ===== | ||
+ | {{page> |