THE DIFFERENCE BETWEEN CRIMINAL AND CIVIL LIABILITY

Criminal liability In criminal matters, it is usually the state prosecuting the defendant before a magistrate, or a judge and jury in the Crown Court. The basic assumption in criminal liability is that there is both a mental element and physical element to the offence. For example, theft involves "dishonestly" which is a question of mental attitude, and "appropriating" which is a physical act. The burden of proof for criminal offences is that of "beyond reasonable doubt". It should be realised that various offences in relation to, for example, road traffic law or environmental law have been so structured that the "mental element" is in fact not required for a conviction. This has been as a matter of public policy to make it possible to obtain convictions which otherwise would be very difficult. The penalties for criminal offences are fines and imprisonment, as well as other non-custodial punishments.

Civil liability Civil liability gives a person rights to obtain redress from another person e.g. the ability to sue for damages for personal injury. There is also the right to obtain an injunction. For there to be an award of damages, the injured party has to have suffered an actual loss, be it personal injury, damage to property, or financial loss. The burden of proof is "the balance of probability" which is much lower than for criminal matters.

If there has been a relevant criminal conviction in a particular matter, then the burden of proof in any related civil action is reversed, so that the defendant has to prove he is not liable. An example of this would be a conviction of a company for breach of health and safety legislation, followed by the injured employee suing the company for damages for personal injury. The offence of criminal conspiracy under section 120-A is a distinct offence introduced for the first time in1913 in chapter V-A of the penal code. The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as along as they are co-participators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of to achieve the common goal of the conspiracy and there may be division of performance in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unkown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes mis-fire or over-shooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy.1

Yash pal mittal v state of Punjab (1977) 4 SCC 540

++++++Under section 120-B there must be an agreement between two or more persons to commit an offence or where the agreement does not amount to an offence in the doing of an act which is legal, in an illegal way there should also be established an overt act. There must be a meeting of minds in the doing of the illegal act or the doing of a legal act by illegal means. If in the furtherance of the conspiracy certain persons are induced to do an unlawful act without the knowledge of the conspiracy or the plot they cannot held to be conspirators, though they may be guilty of an offence pertaining to the specific unlawful act. The offence of conspiracy is complete when two or more conspirators have agreed to do or cause to be done an act which is itself an offence, in which case no overt act need be established. It is also clear that an agreement to do an illegal act which amounts to a conspiracy will continue as long as the members of the conspiracy remain in agreement and as long as they are acting in accord and in furtherance of the object for which they entered in to the agreement.2 The parties to an agreement contemplated in Section 120-A of I.P.C. will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a member of acts. Where the accused are charged with having conspired to do three categories of illegal acts, the mere fact that all of them could not be convicted separately in respect of each of the offences has no relevancy in considering the question whether the offence of conspiracy has been committed. They are all guilty of the offence of conspiracy to do illegal acts though for individual offences all of them may not be liable.3

2 3

Lennart Schussler v Director of Enforcement, (1970) 1 SCC 152 Major E.G. Barsay v State of Bombay, (1962) 2 SCR 195

An agreement between parties to do an illegal act is itself punishable even, though the illegal act pursuant to the agreement was not performed.4

Kehar Singh v State of State ( Delhi Admin ) 1988 3 SCC 609