Difference between negligence in civil actions and in criminal cases:
Supreme Court of India
Sushil Ansal vs State Thr.Cbi on 5 March, 2014
Author: .....J.
Bench: T.S. Thakur, Gyan Sudha Misra
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICITION
CRIMINAL APPEAL NO.597 OF 2010
Sushil Ansal Appellant
Versus
State Through CBI Respondent
(With Crl. Appeals No.598/2010, 599/2010, 600-602/2010, 604/2010, 605-
616/2010 and 617-627/2010)
(iv) Difference between negligence in civil actions and in criminal cases:
67. Conceptually the basis for negligence in civil law is different from that in criminal law, only in
the degree of negligence required to be proved in a criminal action than what is required to be
proved by the plaintiff in a civil action for recovery of damages. For an act of negligence to be
culpable in criminal law, the degree of such negligence must be higher than what is sufficient to
prove a case of negligence in a civil action. Judicial pronouncements have repeatedly declared that
in order to constitute an offence, negligence must be gross in nature. That proposition was argued
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by Mr. Ram Jethmalani at great length relying upon English decisions apart from those from this
Court and the High Courts in the country. In fairness to Mr. Salve, counsel appearing for the CBI
and Mr. Tulsi appearing for the Association of Victims, we must mention that the legal proposition
propounded by Mr. Jethmalani was not disputed and in our opinion rightly so. That negligence can
constitute an offence punishable under Section 304A of the IPC only if the same is proved to be
gross, no matter the word gross has not been used by the Parliament in that provision is the
settled legal position. It is, therefore, unnecessary for us to trace the development of law on the
subject, except making a brief reference to a few notable decisions which were referred to at the bar.
68. One of the earliest decisions which examined the question of criminal negligence in England was
R. v. Bateman (1925) 94 L.J.K.B. 791 where a doctor was prosecuted for negligence resulting in the
death of his patient. Lord Hewart L.C.J. summed up the test to be applied in such cases in the
following words:
A doctor is not criminally responsible for a patient's death unless his negligence or
incompetence passed beyond a mere matter of compensation and showed such
disregard for life and safety as to amount to a crime against the State.
69. Nearly two decades later the Privy Council in John Oni Akerele v. The King AIR 1943 PC 72
found itself confronted by a similar question arising out of the alleged medical negligence by a
doctor who was treating patients for an endemic disease known as Yaws which attacks both adults
and children causing lesions on the body of the patient. Following the treatment, 10 children whom
the accused had treated died allegedly because the injection given to the patients was too strong
resulting in an exceptional reaction among the victims. The allegation against the doctor was that he
had negligently prepared too strong a mixture and thereby was guilty of manslaughter on account of
criminal negligence. Relying upon Lord Hewarts L.C.J. observations extracted above, the Privy
Council held:
11. Both statements are true and perhaps cannot safely be made more definite, but it
must be remembered that the degree of negligence required is that it should be gross,
and that neither a jury nor a Court can transform negligence of a lesser degree into
gross negligence merely by giving it that appellation. The further words spoken by the
Lord Chief Justice in the same case are, in their Lordships' opinion, at least as
important as those which have been set out:
It is desirable that, as far as possible, the explanation of criminal negligence to a jury
should not be a mere question of epithets. It is, in a sense, a question of degree, and it
is for the jury to draw the line, but there is a difference in kind between the
negligence which gives a right to compensation and the negligence which is a crime.
70. What is important is that the Privy Council clearly recognized the difficulty besetting any
attempt to define culpable or criminal negligence and held that it was not possible to make the
distinction between actionable and criminal negligence intelligible, except by means of illustrations
drawn from actual judicial opinions. On the facts of that case the Privy Council accepted the view
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that merely because a number of persons had taken gravely ill after receiving an injection from the
accused, a criminal degree of negligence was not proved.
71. In Jacob Mathews case (supra) a three-Judge Bench of this Court was examining a case of
criminal medical negligence by a doctor under Section 304A IPC. This Court reviewed the decisions
on the subject including the decision of the Privy Council in John Oni Akereles case (supra) to sum
up its conclusions in para 48. For the case at hand conclusions 5 and 6 bear relevance which may,
therefore, be extracted:
48. We sum up our conclusions as under:
xxx xxx xxx (5) The jurisprudential concept of negligence differs in civil and criminal
law. What may be negligence in civil law may not necessarily be negligence in
criminal law. For negligence to amount to an offence, the element of mens rea must
be shown to exist. For an act to amount to criminal negligence, the degree of
negligence should be much higher i.e. gross or of a very high degree. Negligence
which is neither gross nor of a higher degree may provide a ground for action in civil
law but cannot form the basis for prosecution.
(6) The word gross has not been used in Section 304-A IPC, yet it is settled that in
criminal law negligence or recklessness, to be so held, must be of such a high degree
as to be gross. The expression rash or negligent act as occurring in Section 304-A
IPC has to be read as qualified by the word grossly.
72. The legal position in England remains the same as stated in R. v. Bateman (supra). That is
evident from a much later decision of the House of Lords in R. v. Adomako (1994) 3 All ER 79 where
the legal principle of negligence in cases involving manslaughter by criminal negligence were
summed up in the following words:
...In my opinion the law as stated in these two authorities is satisfactory as providing
a proper basis for describing the crime of involuntary manslaughter. Since the
decision in Andrews v. DPP (1937) 2 All ER 552, was a decision of your Lordships'
House, it remains the most authoritative statement of the present law which I have
been able to find and although its relationship to R. v. Seymour (1983) 2 ALL ER
1058 is a matter to which I shall have to return, it is a decision which has not been
departed from. On this basis in my opinion the ordinary principles of the law of
negligence apply to ascertain whether or not the defendant has been in breach of a
duty of care towards the victim who has died. If such breach of duty is established the
next question is whether that breach of duty caused the death of the victim. If so, the
jury must go on to consider whether that breach of duty should be characterised as
gross negligence and therefore as a crime. This will depend on the seriousness of the
breach of duty committed by the defendant in all the circumstances in which the
defendant was placed when it occurred. The jury will have to consider whether the
extent to which the defendant's conduct departed from the proper standard of care
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incumbent upon him, involving as it must have done a risk of death to the patient,
was such that it should be judged criminal.
It is true that to a certain extent this involves an element of circularity, but in this
branch of the law I do not believe that is fatal to its being correct as a test of how far
conduct must depart from accepted standards to be characterised as criminal. This is
necessarily a question of degree and an attempt to specify that degree more closely is
I think likely to achieve only a spurious precision. The essence of the matter, which is
supremely a jury question, is whether, having regard to the risk of death involved, the
conduct of the defendant was so bad in all the circumstances as to amount in their
judgment to a criminal act or omission...
73. There is no gainsaying that negligence in order to provide a cause of action to the affected party
to sue for damages is different from negligence which the prosecution would be required to prove in
order to establish a charge of involuntary manslaughter in England, analogous to what is
punishable under Section 304A, IPC in India. In the latter case it is imperative for the prosecution to
establish that the negligence with which the accused is charged is gross in nature no matter Section
304A, IPC does not use that expression. What is gross would depend upon the fact situation in each
case and cannot, therefore, be defined with certitude. Decided cases alone can illustrate what has
been considered to be gross negligence in a given situation.
74. We propose to revert to the subject at an appropriate stage and refer to some of the decided
cases in which this Court had an occasion to examine whether the negligence alleged against the
accused was gross, so as to constitute an offence under Section 304A of the IPC.