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Civil Vs Criminal Procedures: Scope of Application

Depending on the purposes and the ultimate objectives underlying their very establishment the types of relationships they chiefly govern; the nature of the legal interests that would be affected at their violations and, hence, the parties who would have sufficient stake therein so as to invoke a justiciable controversy, laws may also be classified into ‘civil’ and ‘criminal’. Here, a point has to be made of the fact that the very phraseology of the two terms is a purposive employment. That is, the adjective ‘civil’ is used, in this context, in contradistinction to the word ‘criminal’ so as to signify the distinction between their respective areas of applications since the former deals with ‘civil’ matters whereas, the latter is concerned with ‘ criminal’ cases. Thus, as a natural corollary to this, there comes a need to identify the essential attributes of the two areas of laws; the nature of the legal interests each intend to preserve and the basis of their classification. A brief introductory remark is thus in order.

Legal rules, in the general parlance, have, to reiterate what has already been said herein above, the purpose of adjusting human relations at various levels so as to preserve and ensure   the wellbeing of the public at large. In spite of this, however, the ever-growing complexities and interdependability of human relations have made it clear that there are a good number of situations whereby the legal interests of others may adversely be affected and an eventual evil maybe inflicted there upon.

The inevitability of such unfortunate instances, in turn, calls for corresponding remedial measures if the societal harmony is to be meaningfully preserved. Accordingly, the infringements or violations of legal interests which are so recognized and protected by law -are considered to be legal wrongs thereby entailing liabilities and incurring legal sanctions upon the wrongdoer. These wrongs and the attending liabilities are, in turn, considered to have either private or public nature. The former are breaches of private rights, affecting individual interests; and are called civil injuries; whereas, the latter are violations of public interests, affecting the society as a whole; and, are called crimes.  Even though both of the wrongs do, in a way, affect the private individual, the nature of certain wrongs are conceived to be so grave enough to affect; and, hence, involve the public at large in the controversy as an eligible interested party-represented through the state.

From the preceding discussions, it can be understood that the major distinction between the two lies in the degree of gravity of evils involved in their eventual consequences-wherein the severe ones are placed in the category of crimes. Thus, crimes are more serious and sufficiently injurious to the public as compared to civil wrongs which affect only the private victim.

 In sum, a crime is an offence against the community as a whole for which the offender is held criminally liable and faces penal sanctions. A civil wrong, on the other hand, is an infringement of the legal interests of private individuals and is redressable, principally, through reparation of damages. Moreover, consequential to the nature of the legal interests affected in a civil dispute, the cases are to be initiated and instituted in a court of law by the aggrieved party himself (or his legal pleader); wherein law enforcement organs are but to avail remedies for those who have valid claims. In other words, in a civil litigation, the judge is there, in the whole, to decide whether any legal right of the plaintiff is affected; and, if so, whether one is entitled to any relief. It thus follows that the main purpose of administration of civil justice is primarily to enforce rights; and, hence, a civil case may end up in an award of compensation to the individual victim or dismissal of the case.

On the other hand, penal prosecutions, being the concern of the public at large, have the final aim of ensuring the overall peace and security of the nation as a whole and, may result into an acquittal or conviction of the accused- carrying with it, primarily, an element of penal liability, namely, punishment.

At this juncture, it would be of help, or, at least, not out of place, to say few words about the jurisprudential grounds for the establishment of civil or criminal liability. The basis of remedial liability is to be found in the legal maxim ubi jus ibi remedium”, which means, where there is a right, there must be a remedy –taking into consideration the bare act irrespective of the intention of the wrongdoer. On the other hand, the fundamental rule underlying penal liability is contained in the jural dictum actus non facit reum, nisimens sirea”; which means that a mere act does not amount to crime unless it is accompanied by guilty mind.   That is, one is held criminally liable only for those wrongful commissions or omissions for which he does either willfully or negligently. In other words, criminal liability invariably requires moral guilt (intention or negligence), plus, personal act or forbearance.

Generally speaking, all legal disputes before a court of law are thus either one of remedial or penal in nature; and, civil procedure is, needless to mention, a set of rules employed in the disposition of civil cases while criminal procedure is, by the same token, meant to govern the steps to be followed in penal prosecutions. These specific areas of implementation of the two procedural laws, on the one hand ,obviates the scope of application of civil procedure; and, on the other, brings into picture the need to draw distinctions between civil and criminal cases.

In this regard, with a view to differentiating civil cases from criminal ones, three parameters, inherently based on the jurisprudential background of the two areas of laws discussed above, are commonly employed.

The first factor relates to the nature of the parties instituting the legal action. A civil case is naturally initiated by a private person claiming redress for some wrong alleged to have been committed against him by another.

Accordingly, parties involved in a civil case can appear in either of the following ways:

  • “A physical person against another physical person”; or,
  • “A physical person against a legal person “, or,
  • “A legal person against another legal person”.

Talking of legal persons, it has to be mentioned that a state is not usually interested and, hence, involved in civil proceedings. Sometimes, however, the government may initiate a legal action and be a party to a civil case. This occurs when it acts in and exercise its private capacity.  A government is said to have acted in its private capacity when it engages in matters typically undertaken by individuals. Such is the case when, for instance, it runs business transactions, essentially for the purposes of deriving profit from such commercial activities.  In its public aspect, the functions of a government are, predominantly, dispensing justice; defending the state and its population from foreign aggression; maintaining domestic peace and order; regulating social, economic and political activities; and levying and collecting taxes to finance these activities.

But, if the government is engaged in commercial transactions and a dispute arises from such activities, the matter is considered to be a civil case and disposed of as such by the legal tribunals.  In criminal cases, nonetheless, the parties are commonly the state (represented by the public prosecutor, usually, in place of the plaintiff) and an individual suspect (defendant) – who has allegedly committed a penal offence. There are, however, some limited possibilities for a penal prosecution to arise between an individual victim and the alleged offender. These are limited to cases for ‘offences upon complaints’ -as the law calls them. That is why, a criminal case is generally considered to be one not between the individual victim (and / or his relatives) and the alleged offender as such, but, a matter between the state and the offender.

The purpose of initiating a law suit and the nature of the relief sought thereby is the other yardstick used to make a distinction between civil and criminal cases. The relief demanded in a civil case is mostly the payment of money or is usually to be assessed in monetary values. This may include, for instance, the payment of damages for an alleged injury sustained by the victim (plaintiff).

In some exceptional civil cases, however, a specific relief (personal performance) or forced performance of legal obligations, such as, restitution or delivery of goods or an injunction could also be demanded. Whatever the case may be, nonetheless, the relief sought in either of such civil litigations has nothing to do with the loss of personal liberty, or deprivation of life of the parties involved therein. Consequently, a court entertaining a civil litigation cannot, in principle, impose a sanction depriving a party of his personal liberty; such as, an order of detention; or, of his life as in the case of death penalty. Nonetheless, one, who either refuses to furnish security for appearance-while the case is pending- (Arts 147-150);or, fails, without good cause, to satisfy a decree(Art 389),  may exceptionally be detained in a civil prison for a period not exceeding six months.  

On the other hand, the over all purposes and aims for initiating a criminal case is the  maintenance of peace and order of the general public by, primarily, punishing the law breaker. That is, the state initiates a criminal case for the purpose of securing obedience to its laws by inflicting punishment and/ or other measures on the criminal offender. A penal case, thus, aims at punishing an offender- which appears in the form of loss of liberty (as in imprisonment) or deprivation of life (as in capital punishment) and fine.

The third test is concerned with the availability of alternative dispute settling mechanism in either of the cases. Seen from this perspective, civil cases are subject to negotiations; and, hence, a compromise could be reached upon independently between the parties themselves. This, by implication, means that the parties are not under legal obligations to bring their civil disputes before a court of law and have them disposed of. They, rather, bring them to the attention of a legal tribunal if and when they fail to settle their disputes peacefully as between themselves.   At this juncture, however, one must take note of the fact that a certain single act may give rise to both a civil and a criminal case whereby the parties are at liberty to negotiate over the civil aspect of the matter. To sum up, a civil case is one instituted primarily by an individual for the purpose of securing redress in monetary terms. Understandably, civil procedure is, thus, a method employed in the initiation and disposition ofsuch civil disputes. Moreover, the parties are at liberty to negotiate over their disputes even while the case is still pending; and have it withdrawn from the court any time, but before a final judgment is rendered. In contrast to this, criminal cases are not subject to such alternative dispute settlement mechanisms. This means, the matter lies exclusively within and is done under the power of the prosecution officers irrespective of the negotiations and the agreement that may be made between the victim and the offender; unless, of course, the case falls within the category of ‘offences upon complaint’.  

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