(A) GENERAL
(..1..)
“NATURE AND CONCEPT OF CRIME”
QUESTION BANK
Q. 1. Define ‘crime’ and distinguish between a ‘crime’ and ‘tort’
Q. 2. Explain crime and distinguish between crime and other wrongs
Q. 3. Define ‘crime and discuss the nature and scope of crime’
Q. 4 Define ‘Crime’. What is the concept of ‘Crime’? Explain the essentials of crime
SYNOPSIS
I] INTRODUCTION
II] DEFINITION OF ‘CRIME’-
III. NATURE OF CRIME
1. Relative to Time (Dynamic Nature)
2. Relative to Place (Geographical Nature)
3. Societal and Technological Evolution
IV. DIFFERENCE BETWEEN CIVIL AND CRIMINAL JUSTICE
1) Objects-
2) Determination-
3) Gravity-
4) Party to the Proceeding-
5) Mens Rea (Guilty Mind)-
V. DIFFERENCE BETWEEN ‘TORT’ AND ‘CRIME’
1) Nature of the Wrong:
2) Nature of the Remedy:
3) Procedural Framework:
4) Parties to the Suit:
5) Requirement of Intent:
VI] DIFFERENCE BETWEEN ‘CONTRACT’ AND ‘CRIME’
1) Nature of the Wrong:
2) Nature of the Remedy:
3) Procedural Forum:
4) Party to the Proceeding:
5) Mental Element:
VIII. CONCLUSION-
THE CONCEPT OF CRIME AND ADMINISTRATION OF JUSTICE
I] INTRODUCTION
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 broadly divided into the civil justice system and the criminal justice system. The criminal justice system is uniquely vital; it directly impacts the day-to-day life of modern civilized society.
Peter Taylor has rightly highlighted the importance of the criminal justice system by noting, “A herd 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.” However, establishing a universal ‘common reason’ among all individuals is practically impossible; hence, the State must exercise its ‘common power’ to regulate behavior. According to Thomas Hobbes, unless men are kept under “a common power to keep them all in awe,” peaceful coexistence is impossible. Therefore, the element of state force is inevitable to maintain social cohesion. Man, in a primal sense, can be a combative animal, and institutionalized force serves as the ultimate controlling factor.
Consequently, the administration of justice backed by the physical force of the State is unavoidable. The maintenance of rights within a political community through the sovereign force of the State remains an absolute necessity.
II] DEFINITION OF ‘CRIME’-
It is notoriously difficult to provide an universally precise and flawless definition of crime, as its scope evolves alongside society. Various legal jurists have defined it as follows:
- John Austin: “Any act or omission which the law punishes.”
- Section 2(24) of the Bharatiya Nyaya Sanhita (BNS): “The word ‘offence’ denotes a thing made punishable by this Sanhita.” (Note: This replaces the erstwhile Section 40 of the Indian Penal Code).
- Sir William Blackstone: “Crime is an act committed in violation of a public law forbidding or commanding it.” He later offered an improved definition: “Crime is a violation of the public rights and duties due to the whole community.”
- Professor C.S. Kenny: “Crimes 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.”
- Osborn: “Crime is an act or default, which tends to prejudice the community, and is forbidden by law on pain of punishment inflicted at the suit of the State.”
Core Elements Deduced from Juristic Definitions:
i. Human Agency: The harm must be brought about by human conduct (the actor must be a legal person).
ii. Mens Rea: A guilty mind or wrongful intent must be present.
iii. Actus Reus: An actual act or omission must occur in pursuance of that intent.
iv. Injury/Harm: The conduct must cause harm to an individual or society at large, which the State deems fit to prevent through punitive legal sanctions.
III. NATURE OF CRIME
The concept of crime is not static; it is dynamic, relative, and evolutionary. It changes according to the geographical location, social values, religious beliefs, and political ideologies of a given society.
1. Relative to Time (Dynamic Nature)
What is considered a virtue or an accepted practice in one era may become a serious crime in another.
Sati System: Burning a widow on her husband's funeral pyre was historically tolerated in parts of India; it is now a severe crime.
Untouchability and Dowry: Practices that were socially pervasive for centuries are now strictly prohibited under the Protection of Civil Rights Act and the Dowry Prohibition Act.
Adultery: Under Section 497 of the old Indian Penal Code, adultery was a criminal offence. However, in the landmark case Joseph Shine v. Union of India (2018), the Supreme Court of India struck it down as unconstitutional. Consequently, the Bharatiya Nyaya Sanhita (BNS), 2023, completely omitted the offence of adultery. It is now a ground for civil divorce, but no longer a crime.
2. Relative to Place (Geographical Nature)
An act may be a crime in one country or state, but perfectly legal in another.
Consuming Alcohol: Prohibited and punishable in dry states (like Bihar or Gujarat in India, or under Saudi Arabian law), but legal in most other places worldwide.
Euthanasia / Assisted Suicide: Strictly prohibited as murder or abetment to suicide in many jurisdictions, yet legally regulated and permitted in countries like Switzerland, the Netherlands, and Canada.
3. Societal and Technological Evolution
As society develops, new forms of harms emerge, requiring the legislature to create new categories of crimes:
Cybercrimes: With the advent of the internet, offences like hacking, identity theft, and online financial fraud came into existence, regulated by statutes like the Information Technology Act.
Environmental Crimes: Air and water pollution were once seen as minor civic issues. Today, ecological damage is prosecuted as a serious public offence under specialized environmental protection acts.
IV. DIFFERENCE BETWEEN CIVIL AND CRIMINAL JUSTICE
As discussed earlier, the administration of justice is divided into civil and criminal categories. The primary differences between the two are as follows:
1) Objects-
The object of civil proceedings is to enforce rights through various civil remedies, such as the recovery of damages, specific performance, or an injunction. In contrast, the object of criminal proceedings is to punish the wrongdoer. In other words, the consequence of criminal liability is of a penal nature (i.e., the death penalty, imprisonment, or a fine).
2) Determination-
A civil proceeding determines the civil rights and liabilities of the parties to the suit, whereas a criminal proceeding determines the accused's guilt or innocence.
3) Gravity-
Crimes are graver and more harmful in their consequences. Therefore, it is said that a crime injures the ‘public at large,’ whereas civil wrongs comparatively cause lesser harm and are called wrongs against the ‘individual.’
4) Party to the Proceeding-
In criminal proceedings, the ‘State’ itself constitutes a party since the crime is a wrong against the entire society. Conversely, in civil proceedings, private individuals are the primary litigants before the court.
5) Mens Rea (Guilty Mind)-
Mens rea (a guilty mind) is generally essential in determining criminal wrongs, whereas it is typically not essential in adjudicating civil wrongs.
V. DIFFERENCE BETWEEN ‘TORT’ AND ‘CRIME’
While both torts and crimes constitute breaches of duties fixed by law (irrespective of consent) and violate rights in rem (rights available against the world at large), they differ fundamentally in application:
1) Nature of the Wrong:
A tort is a private wrong that infringes upon the civil rights of an individual. A crime is a public wrong that invades public rights and duties, threatening the security of the whole community.
2) Nature of the Remedy:
In torts, the remedy is unliquidated damages (monetary compensation) paid to the injured party. In crimes, the primary remedy is punishment inflicted by the State. While modern criminal courts can award victim compensation, the core objective remains punitive rather than compensatory.
3) Procedural Framework:
Tort actions are instituted by the injured plaintiff in civil courts. Criminal actions are prosecuted by the State's machinery in criminal courts.
4) Parties to the Suit:
A tort suit is contested entirely between private litigants. A criminal case is fought between the State (acting for the victim) and the accused.
5) Requirement of Intent:
In torts, mental intent is often secondary (e.g., strict liability or negligence). In crimes, barring exceptional statutory offenses, proof of mens rea is a mandatory prerequisite for conviction.
VI] DIFFERENCE BETWEEN ‘CONTRACT’ AND ‘CRIME’
1) Nature of the Wrong:
A breach of contract is a purely personal wrong arising out of a failure to perform a self-assumed, specific obligation between consenting parties. A crime is a breach of public duties imposed directly by the sovereign state upon all citizens.
2) Nature of the Remedy:
The remedy for a breach of contract is liquidated or unliquidated damages to restore the injured party to their original position. The remedy for a crime is state-mandated penal punishment (imprisonment, forfeiture, or fine).
3) Procedural Forum:
Contractual breaches are disputed via civil suits in civil courts. Crimes are tried through criminal trials conducted by state prosecutors in criminal courts.
4) Party to the Proceeding:
In contract law, the parties are exclusively the contracting entities (Plaintiff vs. Defendant). In criminal law, the State acts as the prosecutor against the accused.
5) Mental Element:
Mens rea is irrelevant in a breach of contract; the mere failure to perform an obligation establishes liability. In contrast, mens rea is an essential backbone of criminal accountability.
VIII. CONCLUSION-
Maintaining peace and order within a society requires a clear distinction between private disputes and public wrongs. While civil wrongs (like torts and breaches of contract) focus on repairing individual harm through compensation, crimes represent a threat to the collective conscience and safety of the community.
As society evolves, so too does our understanding of what constitutes a crime. The state continuously updates its laws—as seen in India's transition from the IPC to the Bharatiya Nyaya Sanhita (BNS)—to decriminalize outdated concepts and address new public harms. At its core, crime remains any act or omission that violates public duty, carries a guilty mind (Mens Rea), results in illegal injury, and is met with the punitive sanction of the State to preserve the rule of law.
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