SUB- UNIT 1

Meaning and Kind of Person

The term ‘person’ is derived from Latin word ‘persona’ which means a mask
worn by actors playing different roles in a drama. In modern days it has been
used in a sense of a living person capable of having rights and duties. Now it
has been used in different senses in different disciplines. In the philosophical
and moral sense, the term has been used to mean the rational quality of
human being. In law it has a wide meaning. It means not only human beings
but also associations as well. Law personifies some real thing and treats it as
a legal person. This personification both theoretically and practically clarifies
thought and expression. There are human beings who are not persons in legal
sense such as outlaws and slaves (in early times). In the same way there are
legal persons who are not human beings such as corporations, companies,
trade unions; institutions like universities, hospitals are examples of artificial
personality recognized by law in the modern age. Hence, the person is an
important category of concept in legal theory, particularly business and
corporate laws have extensively used the concept of person for protection as
well as imposing the liability.
Definition of ‘Person’

The term ‘person’ is derived from the Latin term ‘Persona’ which means those
who are recognized by law as being capable of having legal rights and being
bound by legal duties. It means both- a human being, a body of persons or a
corporation or other legal entity that is recognized by law as the subject of
rights and duties. In the words of Salmond: “So far as legal theory is
concerned, a person is any being whom the law regards as capable of rights
and duties. Any being that is so capable is a person, whether a human being
or not, and no being that is not so capable is a person even though he be a
man.” Salmond further explains that the extension of the conception of
personality beyond the class of human beings is one of the most noteworthy
achievements of the legal imagination.
Persons can be classified into (a) natural person, and (b) legal or artificial or
juristic person. There are some natural persons who do not enjoy the status
of legal persons and vice versa. Two kinds of persons are recognised by law
and those are natural person and legal persons. Legal persons are also known
as artificial, juristic or fictitious persons.
According to Holland, a natural person is “such a human being as is regarded
by the law as capable of rights and duties—in the Language of Roman law, as
having a status.” According to another writer, natural persons are “living
human beings recognised as persons by the state.” The first requisite of a
normal human being is that he must be recognised as possessing a sufficient
status to enable him to possess rights and duties. Legal persons are real or
imaginary beings to whom personality is attributed by law by way of fiction
where it does not exist in fact. Juristic persons are also defined as those
things, mass of property, group of human beings or an institution upon whom
the law has conferred a legal status and who are in the eye of law capable of
having rights and duties as natural persons.
Law attributes by legal fiction a personality of some real thing. A fictitious
thing is that which does not exist in fact but which is deemed to exist in the
eye of law. There are two essentials of a legal person and those are the corpus
and the animus. The corpus in the body into which the law infuses the
animus, will or intention of a fictitious personality. The animus is the
personality or the will of the person. There is a double fiction in a juristic
person. By one fiction, the juristic person is created or made an entity. By the
second fiction, it is clothed with the will of a living being. Juristic persons
come into existence when there is in existence a thing, a mass of property, an
institution or a group of persons and the law attributes to them the character
of a person. This may be done as a result of an act of the sovereign or by a
general rule prescribed by the government.
A legal person has a real existence but its personality is fictitious.
Personification is essential for all legal personality but personification does
not create personality. Personification is a mere metaphor. It is used merely
because it simplifies thought and expression. A firm, a Jury, a bench of judges
or a public meeting is not recognised as having a legal personality. The
animus is lacking in their case.
Following are the differences between natural person and legal person:
Natural Person

1. A natural person is a human being and is a real and living person.

2. He has characteristics of the power of thought speech and choice.
3. Unborn, dead man and lower animals are not considered as natural
persons.
4. The layman does not recognize idiot, company, corporation, idol etc. as
persons.
5. He is also a legal person and accordingly performs their functions.
6. Natural person can live for a limited period i.e. he cannot live more than
100 years.
Legal Person
1. Legal person is being, real or imaginary whom the law regards as capable
of rights or duties.
2. Legal persons are also termed “fictitious”, “juristic”, “artificial” or “moral”.
3. In law, idiots, dead men, unborn persons, corporations, companies, idols,
etc. are treated as legal persons.
4. The legal persons perform their functions through natural persons only.
5. There are different varieties of legal persons, viz. Corporations, Companies,
Universities, President,
Societies, Municipalities, Gram panchayats, etc.
6. Legal person can live more than 100 years.
Example: (a) the post of “American President” is a corporation, which was
created some three hundred years ago, and still it is continuing. (b) “East
India Company” was established in sixteenth century in London, and now still
is in existence.
Legal personality is a fictitious attribution of personality by law, a sort of
personification of law. Legal persons being artificial creations of law can be of
as many kinds as the law devises

DEFINITION OF ‘LEGAL PERSON’

This term has been defined by jurists in different ways. The use of term
personality is often limited to human beings alone as they are considered to
be the only subject matter of rights and duties. However, it is to be noted that
the term has a much wider ambit and includes within it gods, angels, idols,
corporations etc.

The German jurist Zitelmana defined legal person in the following words,
‘personality is the legal capacity of will, the bodiliness of men for their
personality a wholly irrelevant attribute’.

According to Salmond – “A person is any being whom the law regards as

capable of rights and bound by legal duties. Any being that is so capable is a
person whether human being or not and nothing that is not capable is a
person even though he be a man”.

Gray defines a person as entity to which rights and duties may be attributed.

According to G.W.Paton, legal personality is a medium through which some

such units are created in whom rights can be vested.

A juristic person is therefore not constrained to human beings alone. It may

be any other subject matter to which rights, liabilities and duties can be
attached. Law confers them the capacity of a person and hence they are called
‘legal persons’. a legal personality is a prerequisite to legal capacity, it is a
prerequisite for international organizations to be able to sign international
treaties in its own name.
NATURE OF LEGAL PERSONALITY

A legal person has two essential elements

– Corpus- it is the body into which law infuses a personality i.e., rights,
liabilities and obligations.

– Animus- It is the personality or will of the person.

Legal personality is a creation of the law. Such recognized entities are capable
of entering into legal relationships. While a natural person acquires legal
personality naturally by being born, legal persons are artificial creations. Law
attributes such creations a human persona which makes them dutiful and
accountable. They are treated in the same way as human beings for legal
purposes. A legal person has a real existence but its personality is fictitious,
because such a thing does not exist in fact but which deemed to exist in the
eyes of law.

LEGAL STATUS OF UNBORN PERSON

In general notion a person is a human being who is or was in existence out in

the physical world. They are inferred to have rights, liabilities and duties.
However, over a period of time laws around the world have recognized the
rights, liabilities and duties of non-human entities as they perform functions
that raise questions of accountability.

But what perplexed the legal system was the status of unborn children. They
are humans, but not present in the outer world and hence technically not a
person. Questions regarding their rights stirred discussions.

Law now attributes legal status to unborn children. By legal fiction, a child in
the mother’s womb is treated as already born and can be treated as a person
for a number of purposes. Pre-natal existence of a child as a legal person is
also recognized for the purposes of civil action. This means a child is entitled
to recover damages for injuries caused to him while he was a foetus inside the
womb of mother, after he is born. In the landmark case of Montreal Tramways
Co. V. Leveille, the Canadian Court granted damages to a female infant for the
deformity caused to her while in mother’s womb.

The notions on this matter differ across various legal systems. In a similar
circumstance as mentioned above, in the case of Walker v. Great North
Railway Company, an Irish Court denied damages to an infant for injuries
suffered at pre-natal stages by holding that the company is not duty bound
to person whose existence was unknown to them.

In the case of Eliot v. Lord Joicey (1935) AC 209, it was held that ownership
may be vested in a child in mother’s womb (en ventre sa mere) and such a
child constitutes life for the purpose of the rule against perpetuity. For
example- Sec 99(i) of the Indian Succession Act 1925 provides: All words
expressive of relationship apply to child in the womb who is afterwards born
alive.

In BNSS 2024, Sec 466 states that in case any woman who is sentenced to
death is found pregnant, an order to postpone the execution must be passed
by the High Court, or it deems it fit, the execution can be reduced to life
imprisonment. This is because our legal system recognises the right to full
development of a child. A pregnant woman condemned to death is respite as
of right till the delivery of the child.

The rights conferred on unborn children are contingent upon his taking birth
alive, when they are transformed into vested rights. The Transfer of Property
Act 1882 grants protection to property made in favour of unborn persons. A
child not yet conceived cannot be deemed to be a person, although provision
may be made for such beings contingently coming into existence by vesting
property in trustees for them. The creation of proprietary rights in favour of
unborn persons is governed by the rule against perpetuity.

That rule provides that you cannot postpone vesting of an estate beyond a
longer period than the lifetime of the transferee or transferees existing at the
date of the transfer and the minority of the ultimate unborn beneficiary. The
contingent rights of unborn persons become vested on birth or at the end of
such period not exceeding that prescribed by the rule against perpetuity, as
may be fixed by the person granting the rights to unborn persons.

Under Indian Law (Section 14, Transfer of Property Act, 1882):

 The interest must vest within the lifetime of a person living at the
date of the transfer plus 18 years (minority).

 If it does not, the transfer is void.

Example 1:

Suppose A transfers property “to my son B for life, and then to B’s unborn
grandchild.”

 If the grandchild isn’t born within the allowed perpetuity period, this
future interest fails due to the Rule Against Perpetuity.

Example 2:

Scenario:
Mr. X writes in his will:

“I give my land to my daughter for life, and then to her first great-grandchild
who reaches the age of 21.”

Problem:
  The great-grandchild may not be born during the lifetime of Mr. X or
his daughter.

 And even if born, the condition (reaching age 21) may extend beyond
the permissible period (life in being + 18 years).

 This gift violates the Rule Against Perpetuity and is invalid.

Example 3: Valid Gift Within Time Limits

Scenario:
Mrs. Y transfers property to:

“My son A for life, and then to A’s unborn child, when that child turns 18.”

Problem Solved:

 A is alive at the time of transfer (life in being).

 The interest is for A’s unborn child (which is allowed), and the vesting
is within 18 years after A’s death.

 This transfer is valid under the Rule Against Perpetuity.

Legal Status Of Dead Persons

Dead men are no longer persons in the eye of law. They have laid down their
legal personality with their lives, and are now as destitute of rights as of
liabilities. They have no rights because they have no interests. They do not
even remain the owners of their property until their successors enter upon
their inheritance. However, there are three things, more especially, in respect
of which the anxieties of living men extend beyond the period of their deaths,
in such sort that the law will take notice of them.

These are man's body, his reputation and his estate. Dead men are not legal
persons. They are immune from duties as no sanction can be enforced against
them. They are not the subjects of rights either. With their death they lay
down their legal personality and as such are destitute of legal rights and
duties.

The law, however, interferes with respect to a dead person in the following
ways:

 A corpse is not a property and cannot be disposed of by will. But every

person dying has a right to a decent burial and the criminal law secures
it.
 The law protects the reputation of dead persons from libelous attacks.
Under the BNS it is defamation to impute anything to a deceased person
if the same would harm the reputation of that person if living and is
intended to be hurtful to the feelings of his family or other near
 relations. But here also the law does not protect a dead person from
being libeled but protects the living descendants who would suffer by
an attack upon their deceased ancestor.
 A man has extensive power to regulate by will the disposition and
enjoyment of the property which he leaves, subject of course to the
restriction imposed by law. But here again the testamentary
dispositions are calculated only to protect the interests of living
persons.

Legal Status Of Lower Animal

In the present day context, the animals are deemed incapable of possessing
legal rights & duties. They are merely things, often the objects of legal rights
and duties but they are never subjects of them.
For example:
A beast has no legal personality. Anything done to the animals may be a wrong
to its owner or to the society but it is no wrong to the beast. But the animals
have two rights to be protected.

 Cruelty to animals is made a criminal offence.

 A trust for benefit for a particular class of animals as opposed to one
for individual animal is valid and enforceable as a public and charitable
one.

Causation

In law, a man is held liable either for doing acts which are mischievous or for
causing actual injury to the plaintiff. Causation, therefore, is an important
concept for determining liability in law.

In fact, before deciding the question of liability the question of causation

should be decided first. Thus, if A is to be held responsible for burning B's
house, he must first be shown to have caused it. Causation, therefore, is an
important factor to determine responsibility whether it is of a criminal or civil
nature.

The causation broadly involves two types of occurrences, namely:

 Abnormal factors;
 Human acts

Thus in the above illustration where a house has been burnt down, presence
of inflammable gas, ignition, an electric short circuit, etc. may be abnormal
circumstances causing fire or it may have been caused by some person. Once
either of these factors is found present, it is easy to know the causation and
attribute responsibility. An act may have been caused due to a change of
causation involving several factors. It is the established principle of law that
a man is not held liable for his act if the chain of causation is broken or
interfered with. This is contained in the maxim – novus actus interveniens.
SALMOND explains the maxim through an illustration. He says: if A stabs B
and B is taken to hospital where, despite the fact that he is shown to be
allergic to terramyein, is injected a large dose of it, then his treatment and not
the stab would be treated as a cause of B's death because the treatment which
was abnormal, broke the casual connection between the -wound by the
accused and the victim's death.

The leading case on causation is relation to civil liability is in Re Polemis

wherein the defendant's servant carelessly dropped a plank into the ship's
hold; the plank struck a spark which ignited petrol vapour whose presence in
the hold was unsuspected. The defendants were, however, held liable for
damages caused to the ship. But this decision has been overruled by the Privy
Council in Wagon Mound case and now forcibility of consequences is the test
for determining causation and liability. In certain cases, the law will presume
that a man has intended the natural and probable consequences of his act.

Thus in Scott v. Shepherd the defendant shepherd mischievously threw a

lighted cigarette squib into the market place. It fell where Yates sold ginger-
bread. One will is, to prevent injury to himself and Yates, picked it up and
threw it across when it fell in the shop of one Royal who took it and threw it
across when it struck the plaintiffs eye and injured it.

The court held that the injury to the plaintiff was directly and immediately
caused by the defendant, as will is and royal, the intermediate agents acted
involuntarily and for self-protection. The injury was held to be not too remote.
It is true that the defendant did not intend to injure the plaintiff and much
less to destroy his eye, nevertheless, he was held liable for one must answer
for the consequences which common sense would attribute to his wrong
doing.

SUB- UNIT 2

CORPORATE PERSONALITY

The legal systems of both England and India recognizes the legal personality
of a corporation. A corporation is an artificial person. There are three
conditions that are inferred from the juristic personality attributed to a
corporation. These are-

 There must be a group of human beings coming together for certain

purpose.
 There must be organs through which corporation functions
 The corporation is attributed will (animus) by legal fiction.

The characteristics of a corporation are as follows

– A corporation has a legal personality of its own distinct from that of its
members.
– In a limited liability company no member is bound to contribute anything
more than the nominal value of shares held by them.

– An incorporated company has perpetual succession which means a

company will continue to exist even after its members change or die. In short,
members may come and go but company will remain forever.

– Shares of the company are transferable in the manner provided by the

articles of the company.

– As a juristic legal person, a company can sue in its own name and also can
be sued in its name.

– A company as a separate legal entity is capable of owning its own property.

The property of a company is not equated as the property of its shareholders.

Lifting of corporate veil

This is a legally recognized doctrine where a court, based on circumstances

of the case, alters its perspective and view a corporate and its members in a
different light, and hold the members personally liable for the acts committed
in the name of corporation, instead of suing the corporation.

The instances where modern company law disregards corporate personality

are-

 Where companies are in the relationship of holding and subsidiary or

sub-subsidiary companies, as held in the case of Freewheels (India) Ltd.
V. Dr. Ved Mitra.
 When the limited liability of a company ceases to exist due to defying
the statutory provision which calls for minimum number of
shareholders in a company. For example- if the number of shareholders
in a private limited company falls below 2 or fall below 7 in case of
public limited company, in such case each shareholder is personally
liable to an unlimited extent, to the creditor for any debt or liability
contracted by the company after the expiration of six months from the
date the numbers fall below legal minimum, if the member concerned
knowingly continued as member.
 In certain matters concerning law of taxes, debts, duties and stamps,
where the question of controlling interest is in issue.
 Under law relating to foreign exchange and control.
 Under regulations relating to trading with enemy, where the test of
control is adopted.
 Under express provisions of the statute.
 In any other case where it is necessary to lift the corporate veil in the
interest of justice and truth.

Liabilities of a corporation

– Civil Liability:
As per the vicarious liability principle, a corporation is liable for the acts
committed by its employees or agents during the course of their employment.
However, a perplexing question before the courts where whether corporations
be held accountable for the acts of its servants that involve malice.

In Stevens v. Midland Countries Railway Ltd and Abrath v. North Eastern

Railway Company, it was held that corporation being merely a fiction does
not possess a mind of its own. Therefore, it is incapable of conceiving any
malice and cannot be held liable in an action involving malice.

The decision in Abrath case was overruled in Citizen’s Life Assurance Co. v.
Brown. it was told that a company can be held liable for torts involving malice
such as defamation. It is now settled that a corporation may be sued for
malicious prosecution or deceit or defamation which involves malice as a
requirement. However, corporation will not be accountable for acts of its
servants which are not authorized by the articles of association of the
company.

– Criminal Liability

Previously, companies were not held liable criminally for the acts of its
servants. But in the modern view, a corporation may incur criminal liability
in cases involving malice, fraud, or other wrongful motives. In India also
criminal liability may be imposed upon corporations under the Companies
Act and other statutes.

THEORIES OF CORPORATE LEGAL PERSONALITY

1. Fiction Theory

Savigny, Kelson, Salmond and Holland are the exponents of this theory.
According to them, corporation is merely a fiction. It is a group of persons
which by legal fiction are regarded as a real person.

According to Professor Gray, by fiction an abstract entity called the

corporation is created and by a second fiction the wills of individuals are
attributed to it.

A company in law is different from its shareholders or members. The company

may become bankrupt, but its members may remain rich.

2. Concession Theory

According to this theory, juristic personality is a concession granted by the

state. It is entirely the discretion of a state whether to grant juristic personality
to a corporation or not. It differs from fiction theory on the ground that the
concession theory emphasizes on the State’s power to recognize a corporation.

This over emphasize has been criticized by many jurists as it can open doors
to State dictatorship.
3. Group personality theory

This theory supposes that every collective group has a real mind, a real will
and a real power of action. This theory was mainly contended by Johannes
Althusius and carried forward by Otto Van Gierke. Gierke stated that the
existence of a corporation is real and not based on any fiction. It is a
psychological and not a physical actuality. He further stated that the law has
no power to create an entity but solely has the right to identify or not to
identify an entity.

4. Bracket theory

Ihering, a German jurist is the key propounder of this theory. According to

this a juristic personality is only a symbol to facilitate the working of the
corporation. Only the members of the corporation are ‘persons’ in true sense
and around them a bracket is put to indicate that they are to be treated as
one unit when they have formed themselves into a corporation.

The main criticism against this theory is that it nowhere prescribes the
instance of lifting the corporate veil and holding individual members
accountable for their acts.

5. Purpose theory

Here, corporations are treated as persons for certain specific purposes. In

Germany foundations are treated as juristic person. A foundation is a trust
like setup for charitable purposes. These foundations are treated as juristic
personality in order to facilitate legal transactions.

6. Kelson’s theory of legal personality

Kelsons theory tells that personality is only a technical personification of a

complex of norms, a focal point of imputation which gives unity to certain
complexes of rights and duties. Kelson shows that there is no difference
between the legal personality of an individual and that of a corporation.

SUB- UNIT 3

Liability comes about when someone breaks the law. The law sets out rights
and responsibilities for individuals. It grants legal rights to one person and
places obligations on another. People should not violate the legal rights of
others. If someone does violate these rights, they are considered to have done
something wrong and this leads to liability.

Definition of Liability

Sir John Salmond

Sir John Salmond defines liability as the necessary connection between a

wrongdoer and the remedy for the wrong. In simpler terms, it’s the link
between someone who did something wrong and the solution to make it right.
Markby

According to Markby, the term ‘liability’ describes the situation when a person
has a duty to fulfill, whether that duty is their main responsibility or a
secondary or enforcing one. It’s about having a job to do.

Austin

Austin prefers to use the term ‘imputability’ instead of ‘liability.’ He says that
certain actions, omissions, or acts, along with their consequences, are
attributed to the people who did or didn’t do them. In other words, it’s about
holding people responsible for their actions or inactions.

Kinds of Liability in Jurisprudence

Civil and Criminal Liability in Jurisprudence

Civil Liability

Civil liability refers to the legal responsibility one person or entity may have
towards another in matters related to non-criminal issues. It arises from
violations of civil laws or regulations, typically involving disputes between
individuals or entities over issues such as contracts, property rights, personal
injury, or family matters.

When someone is found civilly liable, they may be required to compensate the
injured party through remedies like monetary damages or specific
performance (fulfilling a contractual obligation). Civil liability cases are
usually initiated by private individuals or organisations seeking compensation
or resolution of a dispute.

Criminal Liability

Criminal liability pertains to the legal responsibility an individual or entity

bears for actions that violate criminal laws and regulations established by the
government. Crimes are generally offences against society as a whole and the
government, represented by prosecutors, initiates criminal proceedings.

If someone is found criminally liable, they may face penalties such as fines,
imprisonment, probation, or other punitive measures. The purpose of
criminal liability is to punish the wrongdoer for violating laws that are
intended to protect public safety and order.

Distinction Between Civil and Criminal Liability

Different jurists have provided varying perspectives on the difference between

civil and criminal liability. Here are some of these views:
 Austin’s Perspective

Austin states that an offence that is pursued at the discretion of the injured
party or their representatives is considered a civil injury. On the other hand,
offences pursued by the sovereign or its subordinates are crimes. All absolute
obligations are enforced through criminal means.

Salmond’s View

Salmond’s view is that the distinction between criminal and civil wrongs is
not based on the nature of the right violated but rather on the nature of the
remedy applied. He identifies four key distinctions between the two:

 Nature of the Wrong: Crime is considered a wrong against society, while a

civil wrong is a wrong against an individual or individuals.

 Remedy: Criminal offences are rectified through punishment, whereas civil

wrongs are remedied through damages.

 Procedure: Criminal proceedings are used for crimes, while civil proceedings
are employed for civil wrongs and they occur in separate sets of courts.

 Liability Measurement: In a crime, liability is measured by the intention of

the wrongdoer, while in a civil wrong, liability is based on the wrongful act
itself, not the intention.

Remedial and Penal Liability in Jurisprudence

Liability can be further classified into two categories:

 Penal Liability: When the wrongdoer is subjected to punishment such as

fines or imprisonment after a successful proceeding, it is termed penal liability
in jurisprudence. Criminal liability falls under this category.

 Remedial Liability: This type of liability in jurisprudence involves remedies

that are not punitive in nature. After a successful proceeding, the defendant
may be ordered to pay damages, settle a debt, or perform a specific action.
Civil liability generally falls under this category.

Remedial Liability Explained

Remedial liability is based on the principle “ubi jus ibi remedium,” which
means that where there is a right, there must be a remedy. When the law
establishes a duty, it also ensures that there is a means to enforce it. In most
cases, the law prescribes a remedy for breaching a duty and this remedy is
enforced by the legal system.
 Exceptions to this rule include:

 Duties of Imperfect Obligation: Some duties exist in law but are not
enforceable. For example, a time-barred debt, though legally recognised,
cannot be compelled for payment.

 Duties That Cannot Be Specifically Enforced: There are duties that, once
broken, cannot be specifically enforced. For instance, in cases of completed
assault, the defendant cannot be made to undo the act.

 Cases Where Damages Are Awarded: In some instances, although specific

performance of a duty is possible, the law, for various reasons, may choose to
award damages to the plaintiff instead of enforcing specific performance. For
example, when a contract involves personal services, the law may not compel
the performance but instead award damages (as per Specific Relief Act).

Penal Liability

The legal principle “actus non facit reum, nisi mens sit rea” (the act alone
does not amount to guilt, it must be accompanied by a guilty mind) is
fundamental to understanding penal liability, which is the liability for
criminal offences.

Two Essential Conditions of Penal Liability

There are two main conditions for someone to be held criminally liable: actus
reus and mens reus.

Act (Actus Reus)

An act is considered a voluntary physical movement, caused by the will or

desire of the person. It involves bodily movement resulting from a person’s
intention, provided the body part involved is in a normal condition. In simpler
terms, it’s a willed bodily action. Some legal scholars, like Holmes, narrow it
down to a voluntary muscular contraction.

However, Salmond has a broader perspective, defining an act as “any event

subject to the control of human will.” An act comprises three aspects: its
origin in mental or physical activity, its circumstances and its consequences.
For example, in the case of theft, there are five essential elements, including
the dishonest intention to take property and the actual physical movement of
the property.

Mens Rea

Mens rea translates to “guilty mind” and represents the mental element
required to establish criminal liability. It delves into the mental attitude of the
person accused of the crime. Various mental states can be included in mens
rea, such as intention, recklessness, malice, negligence, heedlessness and
rashness.
Salmond, however, narrows it down to just two mental attitudes: intention
and recklessness. In essence, a person can be held liable for a wrongful act
only if they do it willfully (intentionally) or recklessly. Sometimes, inadvertent
negligence can also lead to liability in jurisprudence. However, for someone to
be held criminally liable, their actions must align with one of these mental
attitudes.

The concept of mens rea has evolved over time and in some cases, it has been
replaced by legal standards set by the law. Additionally, different classes of
offences may have varying requirements regarding mens rea.

For example, in some cases, an honest and reasonable belief held by the
accused may not be a valid defence in BNSS, as illustrated by the example of
kidnapping a girl under the age of 18. This demonstrates that the level of
subjective guilt or intent required for criminal liability can differ depending on
the specific offence and legal standards in place.

Stages of crime

The stages of crime or elements of a crime include intention, preparation,

attempt and accomplishment. The constitution of a crime includes all the
elements. Some of these elements are even punishable before the
accomplishment of the crime. All the stages can be explained further as
follows:

Intention

The fundamental elements of a crime are ‘mens rea’ and ‘actus reus’, the
former being the intention to commit a crime and the latter being the act
done in furtherance of the intention. The criminal liability of a person shall
be decided only when he or she has a mala fide intention. It is the direction
of conduct towards the objects chosen upon considering the motive which
suggests the choice. Mere intention shall not constitute a crime, as it is
almost impossible to know the intentions of a person. As the famous saying
goes “the devil himself knoweth not the intention of a man”. Since it is hard
to know the intentions of a man, a criminal liability at this stage cannot be
drawn.

Mens rea

Mens rea literally means guilty mind. This basically implies that a person
committing the crime is mindful of his/her actions and knows that
accomplishment of that act would result in a crime. To simplify, the
intention of the person committing a crime should be mala fide. Further,
mens rea can be further divided into four levels depending upon the degree
of intent of committing the crime. These four levels are:
Negligence: This is the least and in fact the mildest form of mens rea where
the person is negligent of his/her actions and does not ensure reasonable
care in his/her act/omission. Recklessness: This is of a slightly higher
amplitude than negligence where the person can anticipate the crime which
may arise out of the act/omission but did not expect or intended the same
and acts negligently. Knowledge: The third level is knowledge where the
person is associated with the risks that may occur on his act/omission and
still continues with such act/omission. Here, he/she is not negligent. Intent:
This is of the highest amplitude where the person intentionally carries out
an act or omits something in order to commit the crime.

Actus reus

Actus reus is the act or omission on part of the person which causes a crime
and involves some physical activity. It is imperative to note that not just an
act but an omission can also be a crime. For example, non-payment of taxes
or maintenance is a crime.

Preparation

The next stage of a crime is preparation. It can be understood as an act in

furtherance of the mala fide intention of a person. It is an act that shall be a
means to the attempt and accomplishment of the crime. In the previous
illustration, if A purchases a weapon legally and carries it with himself, it
shall amount to the preparation of the crime.

Reasons why preparation is not punishable

The general rule under the law is that the preparation of a crime shall not be
punishable. The reason behind the general rule is that it is nearly
impossible to prove that the accused made the preparation to execute the
crime. Apart from this, the test of locus poenitentiae (place of repentance) is
applied in cases where the culpability of preparation is in question. The test
provides that a person has an opportunity to withdraw from his act before
he actually commits the intended crime.

Exceptions in which criminal liability may be imposed

Exceptions to the general rule that a person cannot be held criminally liable
for the preparation of an act have been provided under the Code. These
exceptions include:

Preparation to wage a war against the Government of India – Section

149 of the Code provides that collection of arms, ammunition, or associating
with people with an intention to wage a war against the State shall be a
punishable offence with imprisonment for a term that may not exceed ten
years, and such the offender shall also be liable for fine.

Section 181 of the Bharatiya Nyaya Sanhita (BNS) addresses the crime
of making or possessing instruments or materials for forging or
counterfeiting coins, government stamps, currency notes, or bank
notes. This section criminalizes the making, mending, buying, selling, or
possession of such instruments or materials with the knowledge or belief
that they are intended for counterfeiting purposes.

This section is preventive in nature, aiming to stop counterfeiting before fake

currency or stamps are produced. It covers instruments and materials for
counterfeiting coins, government stamps, currency notes, and bank notes.

Section 181 is a cognizable and non-bailable offense, triable by the Court of

Session. The punishment for this offense can include life imprisonment or
imprisonment up to 10 years, along with a fine. Examples of covered actions
include possessing counterfeit dies or machinery, selling equipment for
creating counterfeit bank notes, or creating or repairing a die for
counterfeiting currency.
Preparation to commit a dacoity – Section 310 Sub Section 4 of the Code
provides that “Whoever makes any preparation for committing dacoity, shall
be punished with rigorous imprisonment for a term which may extend to ten
years, and shall also be liable to fine.”
Possession of forged documents – Section 341 Sub-section 3 & 4 of the
Code provides the punishment for the possession of forged documents. The
intention behind the provision is to prevent any type of fraud that may occur
by using such forged documents.

These offences are punishable at the stage of preparation due to the gravity
of the outcome of the crime, if committed.

Attempt

There exists a very thin line of distinction between the preparation of a

crime and an attempt to commit the same. It may be defined as an action in
furtherance of the intention and preparation of a person to commit a crime.
Thus, an attempt to commit a crime is often termed “preliminary crime”. An
attempt to commit a crime is punishable under the Code. It has been
provided under various provisions for specific crimes. However, in case of
the absence of punishment for an attempt to commit a particular crime,
Section 62 of the Code comes into the picture. Some of the specific
provisions of the Code under which an attempt to commit a crime have been
enumerated hereunder:

Section 147 – Attempt to wage a war;

Section 109 – Attempt to murder;

Section 110 – Attempt to culpable homicide;

Section 135 – Attempt to wrongfully confine a person;

Section 309(5) – Attempt to commit robbery;

Section 311 – Robbery or dacoity with an attempt to cause death or grievous

hurt;

Circumstances under which attempt becomes impossible

In the 19th century, English law established that an attempt to commit an

impossible act shall not be punishable. Cases of the early 19th century were
decided on the notion that an attempt cannot be made on a crime that
cannot be committed. Thus, where a pickpocket thrusts his hand in an
empty pocket of a person, he shall still not be held liable.

However, the courts found the notion to be illogical and unreasonable in the
later part of the 19th century, and hence, overruled the judgements. This
was the first time an attempt to commit an impossible act was made
punishable.

Section 62 of the Code particularly provides that any attempt to commit an

impossible act is punishable. The illustrations provided under the provision
are indicative of the same. Thus, under the Indian Penal Code, an attempt to
commit an impossible act is punishable.

Difference between preparation and attempt

The difference between the preparation and attempt to commit a crime is a

crucial one. It can determine the criminal liability of a person. The prime
difference between the two is the fact that whether the act that has already
been finished during the stages of crime, has an impact on the victim. If it
has an impact, it is considered to be an attempt, otherwise, it is considered
to be mere preparation.
Tests for determining an attempt to commit a crime

Proximity rule – The proximity rule provides that in cases where the accused
accomplishes a series of acts in furtherance of his intention to commit a
crime, the liability shall be decided upon the proximity with the completion
of the Act.
Locus Poenitentiae – The doctrine of locus poenitentiae provides that where
a person withholds himself from the actual commission of the crime, it
would amount to mere preparation. The doctrine was propounded after
analysing that a person has a reasonable opportunity to withdraw himself
from committing the crime.
Equivocality Test – The equivocality test states that when an act of a person
can prove beyond reasonable doubt the likeliness of committing the crime, it
shall constitute as an attempt to commit the crime rather than mere
preparation.

Accomplishment

The accomplishment of a crime is when an attempt to commit a crime is

successfully executed. Every person shall be liable for the act, offence or
crime that he commits or accomplishes. The provisions of the Code provide
for specific punishments for various crimes in the country.

Stage at which liability commences

The above discussion reveals how these four stages of crime decide the
criminal liability of an accused. Undisputedly, at the level of
accomplishment, the criminal liability of a person shall arise. Nevertheless,
the above discussion reveals how the liability can commence even at the
stage of the attempt and in some cases, even at the stage of preparation.
Usually, in such instances, the crime committed is very serious and poses a
threat to society. Hence, the main object of ascertaining liability at such
stages is to create a deterrent effect in the minds of people and prevent them
from committing such heinous crimes.

Judicial Pronouncements

Asgarali Pradhania v. Emperor (1933)

In this case, the Calcutta High Court, while distinguishing between an

attempt to commit an offence and its preparation, was of the opinion that
not every act done by the accused can constitute an attempt to commit the
said offence. The facts of the case included the accusation of an attempt to
cause a miscarriage of his ex-wife. The Court held that if the accused, with
an intention to administer a drug which shall cause a miscarriage,
administers any harmless substance instead, he shall not be liable for the
attempt to cause miscarriage. However, if the failure of the accused is
caused by someone else, it shall result in the contrary.
Madan Lal v. State of Rajasthan (1986)

In this case, the convict was sentenced to rigorous imprisonment for two
years when found guilty of attempting to commit rape of the victim under
Section 376 read with Section 511 of the Code. The facts of the case
included three prime witnesses, who found the convict laid down naked on
the victim, who was also found naked, and the mouth of the victim was
covered by the convict’s hand. It was established the convict himself
removed his clothes and that of the victim and had an intention to rape the
victim.

The Court, while analysing the stage of attempt, held that “It is the stage
beyond preparation and it precedes the actual commission of the offence. An
attempt to commit an offence is not meant to cover only the penultimate act
towards the completion of an offence but it also covers all those acts or
series of acts which travel beyond the scope of preparation and exhibit a
definite intention and determination to commit a particular offence. It need
not be an act which just precedes the last act on the happening of which the
offence itself is committed but it covers all those acts or series of acts which
may precede the penultimate act towards the commission of that offence.”

State of Madhya Pradesh v. Narayan Singh (1989)

In this case, the Hon’ble Supreme Court held that the commission of an
offence involves four stages; i.e. intention, preparation, attempt and
commission. The first two stages of these offences would not attract
culpability, however, the last two stages would attract it. In this case, the
respondents were trying to export fertilisers without a permit from Madhya
Pradesh to Maharashtra. Hence, the act was considered to be an attempt of
the offence rather than just preparation.

Nasim v. Senior Superintendent of Police (2002)

This case is related to cow slaughter which attracts criminal liability as per
UP Prevention of Cow Slaughter Act, 1955. The petitioner, in this case, was
found to be holding a knife, 38cm in length, and to be sitting on the top of a
cow with all of its legs tied. The instant petition was filed for quashing an
FIR registered under Section 3 and Section 8 of the impugned Act. Relying
upon the Narayan Singh case (1989) as discussed above, the Hon’ble
Allahabad High Court held that preparation had been done by the petitioner
and he would have moved to the third stage i.e. attempt had he not been
stopped. Resultantly, he had criminal liability as attempt and
accomplishment of crime would have attracted liability under the said Act.
Mathivanan v. the State of Tamil Nadu (2021)

In this case, the Madras High Court reiterated that the first and the second
stage (intention and preparation) are generally not culpable, whereas the
third and the fourth stage (attempt and accomplishment) are culpable.
However, exceptions to this general notion are the offences under Section
122 and Section 399 of the Code.

Commenting on Section 122 of the Code, the Court opined that “To wage
war would require several steps and crossing of stages. There has to be
mobilisation of men as well as accumulation of arms and ammunition. That
would require a concerted effort. Each individual who is a party to the
conspiracy to wage war may be allotted a particular task. One may be
tasked with collecting men, another with arms and the third with
ammunition. The expression “otherwise prepares” in this context should not
be construed on the application of the principle of ‘ejusdem generis’. A
person may be engaged in fund-raising. Another may be responsible for
providing reinforcements. Some may be engaged in making logistical
arrangements. Some may be engaged in the intellectual front. There could
be several dimensions. All of them would fall within the scope of “otherwise
prepares”. But as already held, when it comes to application of the provision
to concrete facts, courts will apply a higher threshold.”

Satvir Singh v. State of Punjab (2001)

In this case, the appellants were accused of abetting an attempt to commit

suicide, which was done by the wife of the primary appellant. The issue
before the court was whether it was whether, in an episode of an attempt to
suicide made by a person due to harassment by another, the person
harassing such person shall be liable for an attempt to abet the commission
of suicide. The Court answered in negative, stating that an attempt to abet
shall only be punishable if the said offence has been committed, hence
providing successful abetment. In case the said offence has not been
committed, the abettor shall not be held liable.

Abhayanand Mishra v. State of Bihar (1961)

In this case, the appellant was a candidate appearing in an entrance

examination of the Patna University for the course of M.A. in English. In his
application form, the appellant had provided that he was a graduate and
was also teaching in certain schools after his graduation. However, the
University, only after dispatching his admit card for the examination, found
the information to be forged. He was convicted by the lower court and the
High Court under Section 420 read with Section 511 of the Code. Under the
appeal before the Hon’ble Supreme Court, the contention of the appellant
was that it was mere preparation to commit fraud and not an attempt. The
Court rejected the argument and held that when the appellant submitted
the forged information, it constituted preparation to commit fraud, and
when the said forged documents were dispatched, it amounted to an
attempt. The court reiterated that an attempt may not be seen as only the
penultimate act, rather, it means any act in furtherance of the preparation.

SUB- UNIT 4

Negligence is defined as the failure to perform an act that a wise and

reasonable person would not perform, or the performance of an act that a
reasonable man, guided by the principles that typically govern the conduct of
human affairs, would not perform. It comprises the objective standard of
behaviour of a rational man, according to Pollock.

Negligence is defined as a duty violation brought on by the failure to take

action that a reasonable person would have taken in the same situation.
When a defendant fails to apply reasonable care or skill towards an individual
to whom they owe it, it is considered actionable negligence. For example, when
a fridge is neglected and the plaintiff's person or property is harmed.

Some of the Important definitions of Negligence are as follows:

 Prof Winfield: According to Professor Winfield Negligence is the breach

of a legal duty to take care, which results in damage, undesired by the
defendant to the plaintiff.

 Baron Alderson: Negligence is the omission to do something, which a

reasonable man guided upon those considerations, which ordinarily
regulate human affairs, would do or doing something, which a prudent
or reasonable man would not do.

Theories of Negligence

There are two main theories of negligence: subjective and objective theory of
negligence.

The Subjective Theory of Negligence

The subjective theory of negligence focuses on the mental state or intention

of the defendant at the time of the act in question. It considers whether the
defendant had the requisite mental attitude, often referred to as ‘mens rea‘,
when committing the act that resulted in harm. The subjective theory is
primarily concerned with the internal state of mind of the defendant, making
it a more individualised and case-specific approach.
Key Proponents and Legal Thought

Sir John Salmond is a leading proponent of the subjective theory of

negligence. He argued that negligence should be assessed based on the actual
state of mind of the defendant, rather than applying a uniform standard of
care. According to Salmond, negligence is an attitude of undue indifference
towards the consequences of one’s actions, reflecting a lack of concern for the
safety and well-being of others.

Professor Winfield also supported the subjective theory, emphasising the

importance of understanding the defendant’s intentions and awareness of the
risks involved. Winfield suggested that negligence should be viewed as a
breach of a legal duty to take care, which results in harm that the defendant
did not desire.

Applications and Implications of Subjective Theory of Negligence

The subjective theory is often applied in cases where the defendant’s state of
mind is a critical factor in determining liability. For example, in criminal
negligence cases, where the defendant’s conduct was so reckless that it
warrants criminal punishment, the subjective theory is used to assess
whether the defendant acted with a conscious disregard for the safety of
others.

One of the key implications of the subjective theory is that it allows for a more
nuanced assessment of liability. By considering the defendant’s state of mind,
the court can differentiate between individuals who genuinely made a mistake
and those who acted with a deliberate disregard for the consequences of their
actions. This approach can lead to a more equitable outcome, as it takes into
account the specific circumstances of each case.

However, the subjective theory also has its limitations. It can be challenging
to prove the defendant’s state of mind, especially in cases where there is little
direct evidence of their intentions. This can make it difficult for plaintiffs to
establish negligence and secure compensation for their injuries.

The Objective Theory of Negligence

The objective theory of negligence, in contrast to the subjective theory, is

based on an external standard of care. It evaluates the defendant’s actions
against the behaviour of a hypothetical “reasonable person” in similar
circumstances. This theory is concerned with the outward conduct of the
defendant, rather than their internal state of mind.

Key Proponents and Legal Thought

Sir Frederick Pollock is one of the most notable advocates of the objective
theory of negligence. Pollock argued that negligence should be determined by
comparing the defendant’s actions to those of a reasonable person, without
regard to the defendant’s actual state of mind. He believed that this approach
provided a more consistent and predictable standard for assessing liability.

The objective theory has been widely accepted and applied in many legal
systems, particularly in common law jurisdictions. It forms the basis of the
“reasonable person” standard, which is used to determine whether the
defendant’s conduct fell short of what would be expected from an ordinarily
prudent person under similar circumstances.

Applications and Implications of Objective Theory of Negligence

The objective theory is most commonly applied in civil negligence cases, where
the focus is on whether the defendant’s actions met the standard of care
required by law. For example, in personal injury cases, the court will assess
whether the defendant acted as a reasonable person would have in the same
situation. If the defendant’s conduct is found to be below this standard, they
can be held liable for any resulting harm.

One of the key advantages of the objective theory is its clarity and
predictability. By applying a uniform standard of care, the law can provide
consistent guidance on what constitutes negligent behaviour. This makes it
easier for courts to adjudicate cases and for individuals and businesses to
understand their legal obligations.

However, the objective theory also has its criticisms. Critics argue that it can
be overly rigid and may not account for the specific circumstances of each
case. For instance, the reasonable person standard may not consider factors
such as the defendant’s age, experience or knowledge, which could affect their
ability to meet the standard of care. This can lead to outcomes that are
perceived as unjust or unfair.

Theories of Negligence: Comparative Analysis of Subjective and Objective

Theories

The subjective and objective theories of negligence offer two distinct

approaches to assessing liability. While the subjective theory focuses on the
defendant’s state of mind, the objective theory is concerned with their outward
conduct. Each theory has its strengths and weaknesses and their application
can lead to different outcomes in negligence cases.

Flexibility vs. Consistency

The subjective theory is more flexible, allowing for a case-by-case assessment

of the defendant’s intentions and awareness of the risks involved. This can
lead to more individualised and equitable outcomes, as the court can consider
the specific circumstances of each case.
In contrast, the objective theory offers greater consistency and predictability.
By applying a uniform standard of care, the law can provide clear guidance
on what constitutes negligence, making it easier to adjudicate cases and for
individuals to understand their legal obligations.

Challenges of Proof

One of the main challenges of the subjective theory is proving the defendant’s
state of mind. This can be difficult, especially in cases where there is little
direct evidence of the defendant’s intentions. As a result, plaintiffs may
struggle to establish negligence and secure compensation for their injuries.

The objective theory, on the other hand, is based on observable conduct,

making it easier to apply in practice. Courts can assess whether the
defendant’s actions met the standard of care expected of a reasonable person,
without needing to delve into their internal state of mind.

Fairness and Equity

The subjective theory is often seen as more equitable, as it takes into account
the specific circumstances of each case. By considering the defendant’s state
of mind, the court can differentiate between individuals who genuinely made
a mistake and those who acted with a deliberate disregard for the
consequences of their actions.

However, the objective theory is viewed as fairer in the sense that it applies a
consistent standard to all individuals, regardless of their personal
characteristics or circumstances. This helps to ensure that the law is applied
uniformly and that similar cases are treated in the same way.

Subjective Theory of Objective Theory of

Aspect
Negligence Negligence

Defendant’s conduct
Defendant’s mental state
Focus compared to a “reasonable
(mens rea) and intention
person” standard

Key Sir John Salmond, Professor

Sir Frederick Pollock
Proponent(s) Winfield
 Based on the defendant’s Based on an external,
Standard of
personal awareness and uniform standard expected
Care
intentions of a “reasonable person”

Criminal negligence cases, Civil negligence cases,

situations where the personal injury cases,
Application
defendant’s state of mind is where outward conduct is
crucial assessed

Difficult to prove due to Easier to prove, based on

Proof
reliance on internal state or observable behavior and
Requirement
intentions actions

Less flexible, applies a

More flexible, allows for
uniform standard
Flexibility case-specific assessment of
regardless of individual
the defendant’s intentions
circumstances

More equitable, considers

Viewed as fairer in terms of
Fairness and the specific circumstances
consistency, applying the
Equity and intentions of the
same standard to all
defendant

Less predictable, as
More predictable, with
outcomes depend on the
Predictability clearer guidelines on what
interpretation of the
constitutes negligence
defendant’s mental state

Legal Can lead to more Provides a consistent

Implications individualised judgments standard for courts to follow

Used in cases of gross Commonly applied in

Practical
negligence or reckless general negligence cases,
Example
disregard for safety such as traffic accidents
 May not account for
Subjectivity can make it
personal factors such as
Criticism difficult to apply uniformly
age, experience or
across cases
knowledge

Did the defendant act as a

Primary Did the defendant have the
reasonable person would
Legal necessary mental attitude or
have under similar
Question intention?
circumstances?

Measure Of Liability In Negligence In Jurisprudence

In the context of negligence in jurisprudence, the

measure of liability primarily focuses on the wrongful act itself and the
resulting consequences, rather than the intent of the wrongdoer.

1. Focus on the Act:

 Unlike criminal law, where liability is often measured by the intention of the
wrongdoer (mens rea), in negligence, the emphasis is on the wrongful act or
omission itself.

2. Causation and Foreseeability:

 For liability to be established, there must be a causal link between the

negligent act/omission and the harm suffered by the plaintiff.

 The harm must be a reasonably foreseeable consequence of the defendant's

actions.

3. Role of Damages:

 In civil negligence cases, the remedy for the wrong is typically through an
award of damages.

 The measure of damages is aimed at compensating the plaintiff for the loss or
injury suffered due to the defendant's negligence.

 The aim is to place the plaintiff in the position they would have been in had
the negligent act not occurred.
 4. Different types of Damages:

 Compensatory damages (including special and general damages) are awarded

to compensate for the actual loss.

 Special damages cover quantifiable monetary losses (e.g., lost wages, medical
expenses).

 General damages cover non-monetary losses (e.g., pain and suffering,

emotional distress).

 In some cases, punitive damages may be awarded to punish the defendant for
particularly reckless conduct.