Law of Torts
Tort and Crime: The Same Act as Both, the Independence of the Two Proceedings, and Compensation to a Crime Victim
A tort is a civil wrong against an individual, redressed by compensation at the suit of the person injured. A crime is a public wrong against the community, punished by the State. The same act is very often both, and the great majority of the intentional torts have a criminal counterpart. What distinguishes them is not the conduct but the party wronged, the object of the proceeding and the consequence. The two proceedings are independent, and neither concludes the other: an acquittal does not bar a tort claim, and a conviction is admissible in it but not conclusive.
The seven differences, the same act as both, where the ingredients differ, and compensation to a crime victim
1. The Seven Differences
Tort | Crime | |
The wrong | Against an individual, and a violation of a private right | Against the public at large, and a violation of a public duty |
Who proceeds | The person injured, by suit | The State, by prosecution |
The object | Compensation to the person wronged | Punishment of the offender, and deterrence |
The standard of proof | The balance of probabilities | Beyond reasonable doubt |
Compromise | A tort may freely be compromised and settled | An offence may be compounded only if the law makes it compoundable |
Intention | Generally irrelevant. Liability may arise without any guilty mind | Mens rea is ordinarily an essential ingredient |
The result | Damages, an injunction, or restitution | Imprisonment, fine, or another sentence |
2. The Same Act as Both
The tort | Its criminal counterpart |
Assault | Assault, as defined in the Bharatiya Nyaya Sanhita, 2023 |
Battery | The use of criminal force |
False imprisonment | Wrongful confinement, and wrongful restraint for the partial obstruction that is not a tort |
Defamation | Defamation under section 356 |
Conversion | Criminal misappropriation of property, and criminal breach of trust |
Trespass to land | Criminal trespass, where the entry is with intent to commit an offence or to intimidate, insult or annoy |
Negligence causing death | Causing death by a rash or negligent act |
Deceit | Cheating |
Public nuisance | Public nuisance under section 268 |
- The overlap is greatest among the intentional torts, which is unsurprising: the conduct that most clearly wrongs an individual is also the conduct society most clearly condemns.
- It is smallest for negligence, because the criminal law requires a far higher degree of neglect before it intervenes.
3. Where the Ingredients Differ
The tort requires | The offence requires | |
Defamation | Publication to a third person. Telling the plaintiff alone is no tort. Truth alone is a complete defence | Communication to the person defamed himself may suffice. The first exception requires that the imputation be true and for the public good |
Negligence | A want of reasonable care, judged by the standard of the reasonable man | Negligence of a much higher degree: gross and culpable neglect showing disregard for the life and safety of others, per Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 |
Assault | A reasonable apprehension of immediate force, with the apparent present ability to carry it out | A gesture or preparation intending, or knowing it to be likely, that it will cause such an apprehension |
False imprisonment | Total restraint. A partial obstruction is not the tort: Bird v. Jones | Wrongful restraint covers the partial obstruction that the tort excludes; wrongful confinement corresponds to the tort |
Conversion | A dealing inconsistent with the owner's title. Good faith is no defence | A dishonest misappropriation or conversion to one's own use. Good faith is a complete answer |
- The pattern is that the criminal law asks for a guilty mind and the tort does not, and that the tort compensates a loss which the offence need not have caused.
- The negligence divergence is the most important in practice. An act may plainly be negligent for the purposes of a compensation claim and fall far short of criminal negligence, which is why a doctor acquitted of causing death by a rash or negligent act may nonetheless be liable to compensate: TORT 039.
4. The Independence of the Two Proceedings
- An acquittal does not bar a tort claim. The standards of proof differ, so a prosecution that failed to establish guilt beyond reasonable doubt may succeed on the balance of probabilities.
- A motor accident claims tribunal is not bound by an acquittal in the criminal case arising from the same accident, and routinely awards compensation where the driver was acquitted: TORT 083.
- Nor does an acquittal establish malicious prosecution. It proves only the second of the five essentials, that the proceedings terminated in the plaintiff's favour, and says nothing about reasonable and probable cause or about the prosecutor's motive: TORT 066.
- A conviction is admissible in the civil proceeding and is not conclusive. It is strong evidence of the facts on which it rests, having been arrived at on a higher standard of proof, but the civil court reaches its own conclusion.
- The two may proceed simultaneously, and a civil suit is not ordinarily stayed pending a criminal trial on the same facts, though a stay may be granted where the defence in the criminal case would be prejudiced by disclosure in the civil one.
- Compensation received in one is adjusted against the other, so that there is no double recovery.
5. Compensation to a Crime Victim
Sections 395 and 396, Bharatiya Nagarik Suraksha Sanhita, 2023 Section 395: when a court imposes a sentence of fine, or a sentence of which fine forms a part, the court may, when passing judgment, order the whole or any part of the fine recovered to be applied in defraying the expenses properly incurred in the prosecution; in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the court, recoverable by such person in a civil court; and, when any person is convicted of any offence for having caused the death of another person, in paying compensation to the persons entitled to damages under the Fatal Accidents Act, 1855. The court may also, when passing judgment in a case where a fine does not form part of the sentence, order the accused to pay such compensation as it may specify. At the time of awarding compensation in any subsequent civil suit relating to the same matter, the court shall take into account any sum paid or recovered as compensation under this section. Section 396: every State Government, in coordination with the Central Government, shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependants who have suffered loss or injury as a result of the crime and who require rehabilitation. Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependants may make an application for the award of compensation. |
Compensation to a crime victim | Tort damages | |
The forum | The criminal court trying the offence, or the Legal Services Authority under the scheme | A civil court, or a tribunal or commission |
Whether a separate proceeding is needed | No. That is the point of the provision | Yes. A suit or claim petition must be filed |
The measure | What the court thinks adequate, or the schedule under the State scheme | A computed assessment of the plaintiff's loss under the established heads |
Is proof of the offence needed | Ordinarily yes under section 395, and expressly not under section 396 where the offender is untraced | No. The civil wrong must be proved, not the offence |
Adjustment | Expressly taken into account in a subsequent civil suit | Reduced by whatever was paid under the criminal order |
The civil remedy | Expressly preserved | Not applicable |
⚠ Why the acquittal point matters so much in practice The single most common misconception in this area is that an acquittal in the criminal case disposes of the civil claim on the same facts, and it is worth seeing exactly why it does not. A criminal court asks whether the prosecution has established guilt beyond reasonable doubt; a civil court asks whether the plaintiff has established his case on the balance of probabilities. Those are different questions, and a body of evidence that leaves a reasonable doubt may still make a fact more likely than not. An acquittal therefore means only that the higher standard was not met, and it is consistent with a finding, on the same evidence, that the defendant probably did what was alleged. Two practical consequences follow. A defendant who has been acquitted cannot rely on that acquittal to defeat a claim for compensation, which is why motor accident tribunals award against acquitted drivers every day. And a plaintiff who has been acquitted of an offence cannot use that acquittal, without more, to found an action for malicious prosecution, because proving that the charge was not made out beyond reasonable doubt says nothing about whether there was reasonable and probable cause for bringing it. |
6. The Position Stated Shortly
1. A tort is a civil wrong against an individual redressed by compensation; a crime is a public wrong punished by the State.
2. They differ in the party wronged, who proceeds, the object, the standard of proof, compoundability, the relevance of intention, and the result.
3. Assault, battery, false imprisonment, defamation, conversion, trespass, deceit and public nuisance all have criminal counterparts.
4. In defamation the tort requires publication to a third person and the offence does not; truth alone defends the tort, and the offence requires truth and public good.
5. In negligence the offence requires gross and culpable neglect showing disregard for life and safety, a far higher degree than the tort: Jacob Mathew.
6. Wrongful restraint covers the partial obstruction that Bird v. Jones excludes from the tort of false imprisonment.
7. An acquittal does not bar a tort claim, the standards of proof being different, and a motor accident tribunal is not bound by it.
8. An acquittal establishes only the second essential of malicious prosecution and proves nothing about cause or motive.
9. A conviction is admissible in the civil proceeding and is not conclusive, though it is strong evidence of the facts on which it rests.
10. Sections 395 and 396 of the Bharatiya Nagarik Suraksha Sanhita, 2023 provide for compensation by the criminal court and under a State victim compensation scheme, which is adjusted in any later civil suit.