Tort Distinguished from Crime
Chapter Seven
Syllabus topic 1.2, "Distinction from Crime, Breach of Contract etc., who may sue, who may not be sued."
Pages 29 to 32 of 434
In one line
A crime is a wrong against the whole community, prosecuted by the State and punished; a tort is a wrong against one person, sued on by that person and compensated.
In the wording a student can write in an exam: a tort is a private wrong, the proceeding is a civil suit brought by the person wronged in his own name, the object is compensation, the standard of proof is the balance of probabilities and the parties may compromise; a crime is a public wrong, the proceeding is a prosecution brought in the name of the State, the object is punishment, the standard of proof is beyond reasonable doubt and the offence may be compromised only if it is compoundable.
Why the law divides wrongs this way
The same act can hurt one person and threaten everybody. When Ravi is beaten in the street, Ravi suffers a private loss and the public loses its confidence that the streets are safe. The law answers both, but not in the same proceeding, because the two answers pull in different directions: compensation asks how much Ravi lost, punishment asks how bad the beating was.
Keeping them separate lets each do its own work. Ravi can settle his claim for money without the State losing its power to prosecute, and the State can prosecute without Ravi being obliged to fund the case.
The distinctions in full
| Tort | Crime | |
|---|---|---|
| Nature of the wrong | Against a private individual | Against the community at large |
| Who proceeds | The person wronged, in his own name | The State, in the name of the State |
| Name of the proceeding | A civil suit or claim | A prosecution |
| Court | Civil court, or a statutory forum such as a Claims Tribunal or a Consumer Commission | Criminal court |
| Object | Compensation for the plaintiff | Punishment of the offender |
| Result of success | A decree or an award for damages | Conviction and sentence |
| Standard of proof | Preponderance of probabilities | Beyond reasonable doubt |
| Mental element | Required for some torts, not for others | Ordinarily an essential ingredient |
| Compromise | Free; most claims are settled | Only if the offence is compoundable |
| Who benefits from the order | The plaintiff | The State and the public |
| Law applied | Largely uncodified in India | Codified in the Bharatiya Nyaya Sanhita 2023 and other statutes |
The wrongs that are both
This is where the marks are, because a student who can name the overlapping wrongs and give the current section numbers has answered the question that MU actually sets.
Assault and battery are torts and are also offences: section 131 of the Bharatiya Nyaya Sanhita 2023 punishes assault or criminal force otherwise than on grave and sudden provocation.
False imprisonment is a tort, and wrongful confinement is an offence under section 127 of the Sanhita.
Tort Distinguished from Crime
Defamation is a tort and an offence: section 356 of the Sanhita defines defamation, sets out its ten exceptions, and punishes it.
Trespass to land is a tort, and criminal trespass, which requires an intent to commit an offence or to intimidate, insult or annoy, is an offence under the Sanhita.
Public nuisance is an offence under section 270 of the Sanhita, and it is a tort only for the person who can show special damage beyond that suffered by the public generally. Chapter [Public Nuisance] works that limit out.
Cheating is an offence, and the corresponding civil wrong is the tort of deceit, which chapter [Fraud or Deceit] deals with.
A worked example
Sanjay writes on a public social media page that Meena, a chartered accountant, steals from her clients. The statement is false, and hundreds of people read it. Meena loses two clients.
The tort. Meena may sue Sanjay for defamation in a civil court. She must prove that the statement was defamatory, that it referred to her and that it was published. She need not prove that Sanjay felt any ill will, because malice in law is presumed. If she succeeds she gets damages measured by the harm to her reputation, and she may also get an injunction. The standard of proof is the balance of probabilities.
The crime. The State, or Meena by way of a complaint, may set the criminal law in motion under section 356 of the Bharatiya Nyaya Sanhita 2023. There the prosecution must prove the ingredients of the offence beyond reasonable doubt, and must meet the ten exceptions in that section, which include the imputation of truth made for the public good. If it succeeds Sanjay is punished; Meena gets nothing out of the sentence itself.
Both may run together. The civil suit and the prosecution are independent. An acquittal in the criminal case does not bar the civil suit, because the standards of proof are different. A settlement of the civil suit does not by itself end the prosecution unless the offence is compoundable.
What it does NOT mean
It does not mean a tort is a "small" wrong and a crime a "big" one. Seriousness is not the test. Negligently killing forty people by an industrial escape is a tort, and stealing a bicycle is a crime.
It does not mean the same facts cannot produce both. They frequently do, and the two proceedings run independently.
It does not mean a criminal court can never order compensation. It can, and the Bharatiya Nagarik Suraksha Sanhita 2023 provides for it. But that power belongs to the criminal law and does not turn the prosecution into a civil suit.
Tort Distinguished from Crime
It does not mean an acquittal decides the civil claim. The standards of proof differ, so a defendant acquitted beyond reasonable doubt may still be held liable on the balance of probabilities.
Quick revision
- Tort: private wrong, civil suit by the injured person, compensation, balance of probabilities, freely compromised.
- Crime: public wrong, prosecution by the State, punishment, beyond reasonable doubt, compromise only if compoundable.
- The penal law in force since 1 July 2024 is the Bharatiya Nyaya Sanhita 2023, not the Indian Penal Code 1860.
- Defamation is section 356 of the Sanhita; public nuisance is section 270; wrongful confinement is section 127; assault or criminal force is section 131.
- Overlapping wrongs: assault, battery, false imprisonment, defamation, trespass, public nuisance and deceit.
- Public nuisance is a tort only for a person who proves special damage.
- The two proceedings are independent, and an acquittal does not bar a civil claim.
Test yourself
1. Distinguish between a tort and a crime. A tort is a wrong against a private individual; a crime is a wrong against the community. In tort the injured person sues in his own name in a civil court and the object is compensation; in crime the State prosecutes in its own name in a criminal court and the object is punishment. The standard of proof in tort is the preponderance of probabilities, in crime proof beyond reasonable doubt. A tortious claim may be compromised freely, while an offence may be compounded only if the law makes it compoundable. A mental element is essential to most offences but not to every tort, since strict, absolute and statutory no-fault liabilities dispense with it. In India the criminal law is codified, principally in the Bharatiya Nyaya Sanhita 2023, while the general law of torts is not.
2. Name the wrongs that are both a tort and an offence, with the provisions in force. Assault and the use of criminal force are torts and are punished by section 131 of the Bharatiya Nyaya Sanhita 2023. False imprisonment is a tort and wrongful confinement is an offence under section 127. Defamation is a tort and an offence under section 356, which also contains the ten exceptions. Trespass to land is a tort, and criminal trespass, which requires an intent to commit an offence or to intimidate, insult or annoy, is an offence. Public nuisance is an offence under section 270 and is a tort only at the suit of a person who proves special damage. Cheating is an offence and its civil counterpart is the tort of deceit.
3. Does an acquittal in a criminal case bar a civil action in tort on the same facts? No. The two proceedings are independent, they are brought by different persons for different objects, and above all they apply different standards of proof. A prosecution fails unless the case is proved beyond reasonable doubt; a civil claim succeeds on the preponderance of probabilities. So a defendant acquitted of causing hurt may still be held liable in battery on the same evidence. The converse is also true: a finding in a civil suit does not establish guilt.
Tort Distinguished from Crime
4. Why is public nuisance treated differently from other overlapping wrongs? Because the harm is spread over the public rather than concentrated on one person. As an offence it is punished under section 270 of the Bharatiya Nyaya Sanhita 2023 at the instance of the State, which is the natural plaintiff for a wrong to everybody. As a tort it is actionable only by a person who can show damage particular to himself and different in kind from what the public generally suffers. Without that limit every member of the public could sue for the same obstruction, and the courts would be flooded with identical claims.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.