āLaw Masterās Publicationā
āNature and Concept of Crimeā
Prof. Santosh D. Bhosale
1
(A) GENERAL
(..1..)
āNATURE AND CONCEPT OF CRIMEā
QUESTION BANK
Q. 1. Define ācrimeā and distinguish between a ācrimeā and ātortā
Q. 2. Explain crime and distinguish between crime and other wrongs
Q. 3. Define ācrime and discuss the nature and scope of crimeā
Q. 4 Define āCrimeā. What is the concept of āCrimeā? Explain the essentials of
crime
SYNOPSIS
I] Introduction
II] Definition of ācrimeā
III] Nature of crime
IV] Difference between ācivilā and ācriminalā justice
1)
2)
3)
4)
Objects
Determination
Gravity
Party to the proceeding
āLaw Masterās Publicationā
āNature and Concept of Crimeā
Prof. Santosh D. Bhosale
2
5)
Menās Rea (Guilty mind)
V] Difference between ātortā and ācrimeā
VI] Difference between ācontractā and ācrimeā
Administration of justice is one of the essential functions of the State. In
other words, maintaining law and order is the foundation of a civilized society.
Justice is administered through courts and is divided into the criminal justice
system. and the civil justice system. The criminal justice system is more
important; it touches the day-to-day life of the present civilized society. J Taylor
has rightly marked the importance of the criminal justice system. He says, āA
hard of wolves is quieter and more at once than so many men unless they have
got common reason among them all or common power over them all.ā However,
a ācommon reasonā among them is not possible, but the State can easily exercise
the common power against them. According to Hobbs, unless men are under āa
common power to keep them all in aweā, it is impossible for men to live together.
Therefore, the element of force is inevitable to keep them together. A man is a
fighting animal, and force alone is a controlling factor.
Therefore, the administration of justice with the physical force of the State
is unavoidable. Thus, the maintenance of rights within a political community
through the physical force of the State is a must.
II]
DEFINITION OF āCRIMEā: -
It is difficult to give a correct and precise definition of crime.
Austin defines ācrimeā as: -
1)
2)
3)
āAny act or omission which the law punishesā
S. 2 (24) of the BNS defines āoffenceā: -
āThe word offence denotes a thing made punishable by this code.ā
Blackstone:-
According to Blackstone, āCrime is an act committed in violation of a
public law forbidding or commanding it.ā He gave another improved definition :
āCrime is a violation of a public right and duties due to the whole community.ā
4)
According to Kenny:-
āCrimes are wrongs whose sanction is punitive and is in no way remissible
by any private person, but is remissible by the Crown (State) alone if remissible
at all.ā
5)
According to Osborn:-
āCrime is an act or default, which tends to prejudice the community, and
āLaw Masterās Publicationā
āNature and Concept of Crimeā
Prof. Santosh D. Bhosale
3
the above definitions, the following elements of the crime can be deduced. Viz.
i)
ii)
It is harm to another.
Brought about by human conduct.
Which the State desires to prevent through law.
(i.e. by providing punishment for its violation)
iii)
III]
NATURE OF CRIME:-
A crime is an act or omission which is prohibited by law. It is harmful to
the public at large. It affects the elementary social interest, i.e. the integrity of
life, liberty and property. Society changes; therefore, the law must change
according to the needs of the changing society. The concept of law and crime
changes from time to time and from place to place. For instance, āAdulteryā is
not a crime under English law, but but under I.P.C. it was prohibited under S.497.
However, BNS does not prohibit adultery, it is no more an offence even in India.
The āSatiā system (i.e. burning of a wife on the funeral pyres of her dead husband)
was a practice in India, but now it is an offence. Until recently, environmental
pollution was not recognised as an offence. Practices like āSlaveryā,
'untouchabilityā, and ādowryā were considered prestigious until recently. They are
now crimes prohibited by law. Therefore, any act that is a crime today may not
be a crime tomorrow if the legislature legislates it. It depends upon the values
that society preserves from time to time.
IV]
DIFFERENCE BETWEEN āCIVIL AND CRIMINALā JUSTICE:-
As discussed earlier, an administration of justice is civil and criminal.
There are the following differences between these two. Viz-
1 (a)A crime āis an act committed or omitted in violation of a public law forbidding or commanding it.ā
(b) According to Miller-āA crime is the commission or omission of an act which the law forbids or commands under pain of a
punishment to be imposed by the state by a proceeding in its own nameā.
(c) According to Paton- āIn crime we find that the normal marks are that the state has power to control the procedure, to remit the
penalty or to inflict the punishment.ā
(d)According to infliction of a penalty, instead of leaving the remedy to the discretion of some injured person.ā
(e)According to Keeton- āA crime today would seem to be any undesirable act which the state finds it most convenient to correct by
the institution of proceedings for the Haisburyās Laws of England- āA crime is an unlawful act or default which is an offence against
the public and renders the person guilty of the act or default liable to legal punishment. While a crime is often also an injury to a
private person, who has a remedy in a civil action, it is an act or default contrary to the order, peace and well-being of society that a
crime is punishable by the state.ā
(f)According to Glanville Williams: āA crime (or offence) is a legal wrong that can be followed by criminal proceedings which may
result in punishmentā.
āLaw Masterās Publicationā
āNature and Concept of Crimeā
Prof. Santosh D. Bhosale
4
1)
Objects:-
The object of civil proceedings is to enforce rights through various civil
remedies such as the recovery of damages, specific performance, injunction, etc.
In contrast, the object of criminal proceedings is to punish the wrongdoer.. In
other words, the object of criminal liability is of a penal nature (i.e. death,
imprisonment, fine, etc.)
2)
Determination:-
The civil proceeding determines the rights and liabilities of the parties to
the suit, whereas the criminal proceeding determines the accused's guilt.
3)
Gravity:-
Crimes are graver and more harmful in their consequence. Therefore, it is
said that crime injures the āpublic at largeā whereas civil wrongs are
comparatively of lesser harm. Therefore, they are called wrongs against the
āindividualā.
4)
Party to the proceeding: -
In criminal proceedings, the āStateā itself constitutes a party since the crime
is a wrong against the whole society, whereas, in civil proceedings, private
individuals are the litigants before the court.
5)
Mens Rea (Guilty Mind):-
Mens rea (guilty mind) is essential in determining criminal wrongs,
whereas it is not essential in adjudicating civil wrongs.
V]
DIFFERENCE BETWEEN āTORTā AND āCRIMEā:-
Originally, wrongs were either civil or criminal. Thus, detention,
conversion, and wrongful dismissals are purely civil wrongs, i.e. torts, whereas
Dacoity, Murder, Forgery, etc., are purely criminal wrongs, i.e. crimes. Both a
tort and a crime resemble each other in that both are violations of rights in rem,
and both rights and duties are fixed by law, irrespective of the parties' consent.
The following are the three points of distinction between these two-
1)
As to the nature of wrong: -
A tort is a private wrong. It is an infringement of an individual's private or
civil rights.
On the other hand, a crime is an invasion of public rights and duties
affecting society.
2)
As to the remedy available: -
In tort, the wrongdoer has to pay compensation to the other party, whereas
in crime, the State punishes him. Even in crime, compensation to the victim may
āLaw Masterās Publicationā
āNature and Concept of Crimeā
Prof. Santosh D. Bhosale
5
be awarded in addition to punishment. However, this does not change the nature
of the remedy, i.e. punitive.
3)
As to the procedure: -
In tort, the suit is filed by the injured party himself in civil court, whereas,
in crime, the proceeding is taken and conducted in the name of the State in
criminal courts.
4)
Party to the proceeding: -
In a criminal proceeding, the āStateā itself acts as a party (on behalf of the
victim) since the crime is wrong against the whole society.
In a suit for tortuous wrong, private individuals are the litigants before the
court.
5)
Mens Rea (Guilty Mind):-
Mens rea (guilty mind) is essential in determining criminal wrongs,
whereas it is not essential in adjudicating wrong under tort.
VI]
1)
DIFFERENCE BETWEEN āCONTRACTā AND āCRIMEā.
As to the nature of wrong: -
A cause of action to claim damages or compensation arises in favour of an
individual under contract when one party to the contract commits a breach of its
terms, and it is purely personal.
On the other hand, a crime is an invasion of public rights and duties
affecting society.
2)
As to the remedy available: -
The person making a breach of contract has to pay damages or
compensation to another party, whereas, in crime, he is punished by the State.
3)
As to the procedure: -
For breach of contract, the suit lies in civil court, whereas in crime, the
proceedings are taken and conducted in the name of the State in criminal courts.
4) Party to the proceeding:-
In criminal proceedings, the āStateā itself constitutes a party (prosecutor)
since the crime is wrong against the whole society, whereas, in a suit for breach
of contract, private individuals are the litigants before the court.
5)
Mens Rea (Guilty Mind):-
Mens rea (guilty mind) is essential in determining criminal wrongs,
whereas it is not essential in a suit for breach of contract.
*****