Difference between Tort and Crime
According to Prof. Kenny- “Crimes are wrongs whose sanction is punitive and is no way
remissible by any private person, but is remissible by the crown alone, if remissible at all”.
A tort is widely different from a crime. A tort differs from a crime in the following four respects-
(i) As regards the consequences of the act or omission : Tort is an infringement of the private or civil right belonging to individuals considered as individuals, whereas crime is a breach of public right and duties which affect the whole community considered as community. In other words, a tort is an injury to a private individual, while a crime is regarded move as an injury to the whole community. Private wrongs or civil injuries are torts, public wrongs are crimes. Since tort is considered to be a private wrong the injured party himself has to file a suit as plaintiff.
Also Read Trespass ab initio
(ii) As regards procedure: In torts the civil suit shall be instituted only by the person wronged and by none else; whereas in a crime since it is wrong to the public at large, proceedings can be instituted, with a few exceptions only, by any member of the public or in some cases
(cognizable offences) the police takes cognizance by its own. In case of criminal proceeding, the State is deemed to be a necessary party and it is taken to be a proper party to institute the proceeding.
(iii) As regards redress or remedy: In a tort the remedy is to claim damages for the injury in a civil court and, therefore, they are only reparatory proceedings meant to compensate the injured party; but in crimes the proceedings are deterrent, meant to prevent its repetition by punishing the wrongdoer, so that he may not do it again. The underlying principle of redress is, therefore, different in both. In crime it is the punishment of the offender to deter him form again committing it; in tort it is reparation or compensation to the person injured and nothing more. As per Criminal Procedure Code, 1973, court are authorised whithin certain limits and in certain circumstances to award compensation to the person injured out of the fine imposed on the offender. In both cases compensation is awarded but there is a difference in their nature. In criminal procedure the compensation is ancillary to the primary purpose of punishing the offender but in a tort action to compensate is the main purpose.
(iv) As regards their history: Both tort and crime differ in their historical origin. Law of crimes is later in origin than the law of torts. This point has been made clear by Sir Henry Maine in his Ancient Law where he has observed that “the penal law of primitive communities was
not the law of crimes but the law of wrongs or torts”.
Also Read Maintenance and Champerty
Over lapping of Tort and Crime[The same act as tort as well as a crime]
The same act may be a tort, when looked upon from the standpoint of an individual, and also a crime when looked upon from the standpoint of the society in general. Assault,libel, theft and malicious injury to property, etc. are wrongs of this kind. Assault, being a violation of the personal safety of an individual, is a tort, but being a menance to the society in general, it is a crime also.
But where the same wrong is both a crime and a tort, its two aspects are not identical, its definition as a crime and as a tort may differ; what is a defence to the tort (as in libel the truth) may not be so in the crime, and the object and result of a prosecution and of an action in tort are different.
Salmond is of the opinion that speaking generally, in all such cases, the civil and criminal remedies, are not alternative but concurrent, each being independent of the other. The wrong-doer may be punished criminally and also compelled in a civil action to make compensation or restitution to the injured person. In England in some cases the view was expressed that where the same injury gives rise to both a tort and criminal action, the action for damages cannot be maintained unless the offender has been prosecuted for the criminal offence, or a reasonable excuse shown for not prosecuting him. But that principle has not been followed by the Courts in India, and there are numerous decisions to the effect, that the injured person can directly bring a suit for damages for an action which also amount to a crime, without in the first instance instituting criminal proceedings.
Distinction between tort and crime has been thus put up by Holdsworth
The only certain lines of distinction are to be found in the nature of remedy given, and the nature of procedure to enforce the remedy. If the remedy given is the compensation, damages or a penalty imposed by a civil action, the wrong so redressed in civil wrong. If the remedy given is punishment of the wrong so redressed is crime of criminal in nature.
Indian Supreme Court while considering the constitutionality of Section 309, Indian Penal Code, also explained the difference of Torts and Crime. The Court held that it cannot be said that the torts only affect the individual; it finally reaches to the society.