Introduction

A cardinal principle of criminal law is contained in the Latin maxim actus non facit reum nisi
sit rea. It means that the act itself does not make a man guilty unless his intention was so, in
other words the criminal act must be accompanied by guilty mind. Thus the two
components of a crime are the physical act or actus reus, and the guilty mind or mens rea.

From the viewpoint of mens rea, wrongs may be classified as under.

1) Intentional Wrongs - Where mens rea is equated with intention or purpose.

2) Wrong causes by negligence In such cases culpa constitute mens rea.

3) Wrong of strict liability Where mens rea is not necessary.

Mens rea and active act by accused is essential to constitute an offence, Gangula Mohan
Reddy v. State of Andhra Pradesh1.

Mens rea

Mens rea is an essential part of determining whether the act done is culpable or not. Mens
rea means the guilty mind. One of the cardinal principles of English criminal law is that there
must be guilty mind behind that act which is sought to be labelled as criminal. Without the
mind of the person committing the act being guilty, the person is not guilty. Thus mens rea
in case of murder means malice after thought in case of man slaughter it may mean
inattention or negligence to note a danger signal whereas in case of theft an intention to
deprive the rightful owner of his property, and so on. Without a guilty intent accompanying
the act would not by itself constitute a guilty and may be excusable as an accident.

Mens rea, says Beg J. in Girja Nath v. State2 is a loose term of elastic signification and
covers a wide range of mental status and conditions, the existence of which would give a
criminal hue to actus reus. Sometimes it is used to refer to a foresight of consequence. At
other times, to act per se irrespective of its consciences. In some cases it stands for a
criminal intention of the deepest dye, such as is visible in a designed and predetermined

1
AIR 2010, SC 327
2
ILR (1954), 2 All, 215
murder committed with a full foresight of its fatal consequences. In other cases, it connotes
mental conditions of a weaker shade such as are indicated a colourless consciousness of the
act itself irrespective of the consequences of the act, or, in other words, a bare capacity to
know what one is doing as contrasted, for example, with a condition of insanity or
intoxication which a man is unable to know the nature of the act

A necessary corollary of the requirement of mens rea is that those who are permanently or
temporary incapable of such an intention are excused. The drunkenness and insanity render
the accused incapable of forming the necessary intent to constitute the crime. A person is
exonerated from criminal liability of doing an act by reason of unsoundness of mind if he, at
the time of doing the act, is either incapable of knowing

(a) the nature of the act, or

(b) that he is doing what is either wrong or contrary to law similarly, nothing is an offence
under the Indian Penal Code which is doing by a child under 7 years of age as he is
irrebuttably presumed to be incapable of mens rea.

Intention

Intention has been equally defined by Salmond as the purpose or designed with an act is
done. It is the foreknowledge of the act, coupled with the desire of it, such foreknowledge
and desire being the cause of the act. A wrong is intentional only where, as Paton observes,
the particular consequences which result from the act are foreseen and desired. Knowledge
and desire are the two necessary constituents of intention. An act may be intentional,
unintentional or partly intentional and partly unintentional. An intentional act is one
committed with the foresight and without the desire.

Intention is divisible into immediate and ulterior intent. A crime is seldom committed for its
own sake. There is some ulterior object in the commission of the crime. When a robber robs
a person his immediate intention is to rob him, but the ultimate or ulterior intent is to
purchase food or wine for him. The ulterior object is called motive, while the immediate act
is intention. Thus, the immediate intention may be bad while the ulterior intent may be
good, but the acts will nonetheless be wrongful.
Negligence

Negligence is culpable carelessness. It is the absence of such care as it was the duty of the
defendant to use says Willes, J.

Salmond defines negligence as the mental attitude of undue indifference with respect to
ones conduct and its consequence

Negligence is breach of legal duty to take care which results in damage, undesired by the
defendant to the plaintiff. Thus, its ingredients are

(1) a legal duty on the part of A towards B to exercise care in such conduct of A as falls
within the scope of the duty

(2) breach of the that duty and

(3) Consequential damages to B

The plaintiff cannot win his actions unless he can show in Limine facts from which the court
can deduce a legal obligation on the part of the defendants freedom of conduct, and
particular restriction here is that of behaving as a reasonably careful man would behave in
like circumstances. The decision is always a question of law for the judges.
Vicarious Liability

Normally the liability for the wrong done lies in the person who has committed it. but to the
general rule there are exceptions. The exceptions are provided by the doctrine of vicarious
liability, where one person is made liable for the wrongful act of another. Criminal law is
never vicarious except in a few extreme cases of statutory liability that is where sale is made
by servant of a licenced vendor of arms and ammunitions to an unauthorised person, the
licensee is liable to punishment under the Indian Arms act, public nuisances or neglect of
duty like an engineer was held guilty of manslaughter when he entrusted the management of
steam engine to an ignorant boy who killed a man for want of skill to handle the engine3 . It
is, however, only in civil law that vicarious liability is recognised in two cases. The vicarious
liability is not recognized by IPC, but section 149 of IPC is exception as stated in the
judgement of Munivel vs State of T.N4 which says Section 149 of the Penal Code
provides for vicarious liability, 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. The common object may be
commission of one offence while there may be likelihood of commission of yet
another offence, the knowledge whereof is capable of being safely attributable to the
members of the unlawful assembly. Whether a member of such unlawful assembly
was aware as regards likelihood of commission of another offence or not would
depend upon the facts and circumstances of each case. It is also well settled that if
death had been caused in prosecution of the common object of an unlawful
assembly, it would not be necessary to record a definite or specific finding as to
which particular accused out of the members of the unlawful assembly caused the
fatal injury.5

They are as under:-

1) Master and Servant The liability of a master for the torts of servant is an example of
vicarious liability, i.e., where A as master is liable for the tort to B committed against C
though A is no party to the tort himself is of course usually liable.

A servant is one whose work is under the control of another. Unless wrong done falls within
the course of the servants employment, the master is not liable.

3
Vide Lowe, 3C & K 123
4
AIR 2006 SC 1761
5
Indiankanoon.org
Thus, a master is liable if the wrong be the natural consequence of something done by the in
execution of the specific order of the master. The master is not liable for the servants want
of care in carrying out the work entrusted to him if the servant exceeds the authority given
to him in mistaken notion of his duty provided the servant purported to act on behalf of his
master. The master is also liable for wilful wrongs done by the servant on behalf of the
master because the act done may still be in the course of employment even it was
forbidden by the master. Thus, a master is liable when the driver employed by him raced
with other omnibuses in spite of the instructions from the master not to do so, because the
driver intended to benefit his master to get more passengers. The master is liable for the
mistake of the servant as a misguided enthusiast.

Vicarious Liability in statutory offences

The legislature framed certain statutes under which the employer is strictly liable for the
offences of his servant. For example, the prevention of food Adulteration act, Sale of Liquor,
Drugs, etc., imposes liability on the master. So for example the owner of the sweet shop or
any other such shops has to take care that he is selling unadulterated food articles to his
customers and if caught, he cannot plead that he was unaware of it and his servant should
be held liable, the master cannot escape from the charges. In Ravula Hariprasada Rao v.
State of Madras6 under this the master was held liable for the criminal acts of his servant
under Motor Sprit Rationing order 1941 without his knowledge. The high court of Madras
held him liable as it was an offence under statutory offence. But when he approached the
Supreme Court, the Honourable SC in its judgement said that if a statutory offence does not
clearly or by necessary implication rules out mens rea a constituent part of crime, the
defendant cannot be held guilty unless he has a guilty mind. But the legislature makes the
principle liable even though he has no mens rea as under Food and drugs act.

Liability of Corporations
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

6
1951, SC 204
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.7

Cases- Aligarh Municipal Board v. Ekka Tonga Mazdoor Union

State of Maharashtra v. Syndicate transport Co (P) Ltd.

7
https://www.lawctopus.com/academike/vicarious-liability-in-criminal-law/#_ednref12
Exceptions

As a general rule under criminal law, the master is not held liable for criminal acts of his
servant but in some exceptions he will be held responsible for Abetting and Conspiracy or if
he is an active partner in a crime.

A person is jointly liable for common intention Sec 34 or as having constructive liability and
common object as under sec 149. Examples if a master instructs his servant to murder C
enemy of the master and the servant act upon his masters instructions then the servant
and master both will be liable and punished

Another example is that when A- master and B- servant are both sitting in the car driven by
the servant, A instructs B to drive the car and the servant drives car negligently and in rash
manner and causes accident to C a common person, here the master will be held liable for
the acts of his servant as under law of torts and will have to pay for the damages but, A will
not be held liable under criminal act of B and here B will be held liable under 304-A of IPC
for Rash and Negligence. Here the principle is not held liable for the vicarious act.

Exception under Statutory law

Violations of some penal provisions are punishable under vicarious liability where only the
master is held liable for the criminal offences if he does not obey the rules carefully.

For examples- Under Hyderabad city Police Act, it is prohibited to erect pandal on the twin
cities. A master instructs B to erect pandal on the road, here the master A will be held liable
under criminal provisions of Hyderabad city Police act.

Other such offences are The Environmental (Protection) Act, 1986, the Water (Prevention
& Control of Pollution) Act, 1974, the Air Prevention & Control of Pollution) Act, 1981, etc.,
impose the strict liability upon the occupiers/prospect is not to pollute the atmosphere. If
an occupier instructs his employees to discharge unearned effluents into the surrounding
canal, land and atmosphere, the polluter/ occupier is hearable8

8
Tondons IPC 23rd edition 2005 by justice Rajesh Tondon
Conclusion

Earlier the vicarious liability concept was prevalent in law of torts as the civil wrong where
the master was the respondent superior and has the economical stability over the servant
and he is liable for his servants act as he does the acts during the course of employment
under his master. But with the evolution of the law the courts has started applying the
doctrine of criminal cases also. Earlier the concept of vicarious liability was unknown to the
Criminal law but now as it is now in the interest of public safety the object of the
punishment is in twofold that is (i) Prevention of offences and (ii) Protection of society.