Indian Penal Code, 1860 - Section 407 - Criminal breach of trust - Vicarious liability - No criminal liability on the master for the act of his servant - No allegation of mens rea - Accused cannot be held guilty.
"Criminal breach of trust" is an ingredient, part and parcel of offence under Section 407 of the I.P.C. Independent section seems to have been incorporated to govern particular category of persons entrusted with the property. On reference to definition of criminal breach of trust as contained in Section 405 of the I.P.C., it can be seen that "mens rea" is an essential ingredient. Misappropriation or conversion of property to his own use by the person entrusted with the property, in order to constitute criminal breach of trust must be done dishonestly i.e. with an intention to cause wrongful gain to one (himself) and wrongful loss to another (the complainant). This is evident from the use of the word "dishonestly" prefixing the clause "misappropriates or converts to his own use property...."
Considering the facts and circumstances of the present case, in the light of the definition of criminal breach of trust, it must be said that the petitioner is being prosecuted as carrier, for the act of an employee, who tampered with the envelope and removed cash from the same. In other words, the petitioner is being prosecuted by "vicarious liability". The complainant may be justified in filing a suit for compensation against present petitioner for tortious act of his servant by virtue of doctrine of vicarious liability. But, the same relationship cannot fasten criminal liability upon the master for the act of his servant, especially when the crime alleged contains "mens rea" as its essential ingredient. Mens Rea is a state of mind, guilty intention. And unless it is found that accused had the guilty intention to commit the crime, he cannot be guilty of comitting the crime.
Bombay High Court
Manoj Chandulal Shah vs The State Of Maharashtra & Ors. on 28 February, 2001
Equivalent citations: 2001 BomCR Cri, (2001) 2 BOMLR 540, 2001 (2) MhLj 867
Bench: N Dabholkar
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