When Civil Wrongs Are Prosecuted As Crimes: The Growing Crisis Of Overcriminalisation

A plywood seller supplied goods worth nearly ₹15 lakh to a couple. Only part of the amount, around ₹3.5 lakh, was paid. What followed was not a civil suit for recovery, not a commercial negotiation, but a criminal complaint. The police were set in motion. Allegations of cheating, criminal breach of trust, and conspiracy were levelled. Arrest loomed. Anticipatory bail was denied by the Rajasthan High Court on the reasoning that police custody might be necessary to recover the remaining money. However, the Supreme Court stepped in and set aside the High Court's order and granted anticipatory bail, expressing clear discomfort with the routine conversion of payment disputes into criminal cases. Once a sale transaction has taken place, the Court reiterated, there is no question of criminal breach of trust. The police, the Bench led by Justice J.B. Pardiwala observed pointedly, are not debt-recovery agents.^[1] Criminal law cannot be deployed to “squeeze” money out of one party for the benefit of another.

This was not an isolated intervention. Around the same time, the Supreme Court rebuked multiple High Courts for permitting criminal proceedings in matters that were plainly civil in nature. Rikhab Birani and Sadhna Birani entered into an oral agreement in June 2020 to sell a godown in Kanpur to Shilpi Gupta for ₹1.35 crore, of which ₹19 lakh was paid as part consideration. The purchaser failed to pay the agreed advance, and a cheque of ₹10 lakh was dishonoured. What followed was not a civil suit for recovery, not a commercial negotiation, but a criminal complaint. The police were set in motion. Allegations of cheating, criminal breach of trust, and conspiracy were levelled. Arrest loomed. After the High Court refused to quash the proceedings, the appellants approached the Supreme Court. The Supreme Court set aside the High Court's order, quashed the FIR and chargesheet, and strongly deprecated the growing tendency to convert contractual and payment disputes into criminal cases.^[2]

Recent decisions of the Karnataka High Court reflect the same. In N.H. Poornima v. State of Karnataka,^[3] the dispute arose from an alleged property transaction dating back to 2007. Despite claiming to have paid substantial consideration, the complainant neither sought specific performance nor recovery for over a decade. Instead, after earlier criminal proceedings between the parties were settled, a fresh FIR was lodged alleging cheating and trespass, even against individuals who were not executants to the original agreement. The High Court quashed the proceedings, recognising that criminal law was being invoked to resurrect a stale civil claim and to circumvent the appropriate civil remedies.

Similarly, in Sanjit Kumar v. State of Karnataka,^[4] the petitioner, a former General Manager of a cooperative sugar factory, was arrayed as an accused several years after his resignation. His implication was premised solely on his role in placing agenda notes before the board and signing documents as a witness. The High Court rejected this expansive attribution of criminal liability, reiterating that criminal culpability must be personal, intentional, and proximate. Mere administrative association or hierarchical position cannot substitute for mens rea. To hold otherwise would amount to criminalising office-holding rather than criminal conduct.

The message was unmistakable: the criminal justice system is being misused as a shortcut for civil enforcement, and courts are complicit when they fail to draw the line. This phenomenon, often described as overcriminalization, is not merely about the growing number of offences on the statute book. It reflects a deeper constitutional failure: the erosion of principled limits on when the State may legitimately criminalise conduct. As recent Supreme Court and High Court decisions make clear, preserving the boundary between civil liability and criminal culpability is not a technical exercise. It is essential to protect personal liberty, prevent arbitrary State action, and maintain the moral authority of criminal law itself.

Overcriminalisation, in constitutional terms, is not merely about the proliferation of offences or penal statutes. It refers to the dilution of principled limits on criminalisation, where conduct lacking public harm, culpable intent, or social dangerousness is nonetheless subjected to criminal prosecution. In India, this is frequently witnessed in contractual disagreements, property disputes, and commercial failures being reframed as offences of cheating, criminal breach of trust, trespass, or intimidation. Such practices distort the purpose of criminal law and transform it into an instrument of private leverage rather than public justice.

Civil Liability and Criminal Culpability: A Doctrinal Divide

The distinction between civil liability and criminal culpability is foundational to criminal jurisprudence. Civil law is premised on corrective justice, aiming to restore parties to their original position or compensate loss arising from breach of obligation. Criminal law, by contrast, addresses public wrongs, conduct that threatens social order or collective interests and warrants condemnation and punishment by the State. This distinction is reflected in the essential elements of criminal offences themselves, particularly the requirement of mens rea.

The Supreme Court has consistently emphasised this doctrinal boundary. In Hridaya Ranjan Prasad Verma v. State of Bihar,^[5] it was held that breach of contract cannot give rise to criminal prosecution unless a fraudulent or dishonest intention existed from the outset. In S.N. Vijayalakshmi & Ors. vs. State of Karnataka & Anr.,^[6] the Court held that vague allegations are not enough to sustain criminal charges and that legal disputes, such as those involving property or contractual obligations, should not automatically lead to criminal prosecution. These decisions underscore that criminal law cannot be permitted to function as an alternative forum for civil enforcement or as a coercive strategy to bypass evidentiary and procedural limitations of civil litigation.

The problem of overcriminalisation becomes stark when viewed through everyday, routine transactions. Consider a simple consumer scenario, an individual orders a product online, makes full payment, but the item is never delivered. At its core, this is a civil wrong, a breach of contract or deficiency of service, for which remedies lie under consumer protection law or civil recovery. However, it is increasingly common for such grievances to be escalated into criminal complaints alleging cheating under the Bharatiya Nyaya Sanhita, accompanied by threats of arrest and police intervention. In such cases, unless it can be shown that the seller had a dishonest intention at the very inception, for instance, that the platform or vendor never intended to deliver the product at all, the essential mens rea required for cheating is absent. The mere non-fulfilment of a promise, even if negligent or commercially irresponsible, does not metamorphose a civil breach into a criminal offence.

Overcriminalisation also imposes high institutional costs. Every unnecessary FIR triggers police deployment, investigation, documentation, court hearings, and prosecutorial time, all funded by public resources. This model reflects a misplaced faith in deterrence rather than a rational assessment of harm or necessity. When scarce investigative capacity is expended on minor or civil disputes, it directly undermines the State's ability to address serious crime, thereby weakening both efficiency and legitimacy of the criminal justice system.

The concern of overcriminalisation is no longer theoretical but empirically established. The Vidhi Centre for Legal Policy's State of the System (SOS)^[7] database reveals that nearly 42 per cent of India's 882 central laws contain criminal provisions, collectively criminalising over 7,300 actions and omissions. This pervasive reliance on incarceration persists despite its well-documented social, economic, and institutional costs, and has extended criminal sanctions deep into regulatory and administrative domains such as taxation, municipal governance, and financial regulation. As a result, minor procedural lapses and regulatory non-compliance are penalised alongside grave violent crimes, collapsing the principle of proportionality and blurring the constitutional distinction between public wrongs and civil or regulatory infractions.

Constitutional Consequences of Overcriminalisation

Criminal law represents the most coercive assertion of State power in a constitutional democracy. Unlike civil law, which regulates private disputes and provides compensatory remedies, criminal law authorises the State to stigmatise conduct, restrict personal liberty, and impose punishment. Its invocation, therefore, attracts the highest level of constitutional scrutiny under Articles 14 and 21 of the Constitution. The increasing tendency to deploy criminal law to address disputes that are fundamentally civil in nature raises serious concerns of overcriminalisation, arbitrary State action, and erosion of due process guarantees.

Every criminal prosecution entails investigation, repeated appearances, the threat of arrest, and prolonged exposure to the criminal justice system. Subjecting individuals to this process without a constitutionally valid basis infringes substantive due process under Article 21. Liberty is not compromised only by incarceration; it is eroded through the anxiety, stigma, and coercive pressure that accompany criminal proceedings.

Overcriminalisation also violates Article 14 by enabling arbitrary and selective enforcement. When identical civil breaches attract criminal prosecution in some cases but not others, depending on the complainant's access to State machinery, criminal law loses its uniformity and predictability. Such uncanalised discretion fosters arbitrariness and undermines the rule of law. Further, the looming threat of criminal liability in commercial and administrative contexts produces a chilling effect, discouraging legitimate decision-making and risk-taking not because conduct is unlawful, but because it may later be characterised as criminal.

At a structural level, overcriminalisation burdens an already strained criminal justice system. Investigative resources are diverted to disputes that do not warrant penal sanction, while genuinely serious offences await adjudication. This not only affects judicial efficiency but also dilutes the moral authority of criminal law by trivialising its use.

Criminalisation is justified only where certain principled thresholds are met: the conduct must cause or threaten public harm, civil or regulatory remedies must be inadequate, culpable intent must be clearly established, and the penal response must be proportionate to the gravity of the wrongdoing.^[8] Criminal law is meant to be a measure of last resort, not a default mechanism for dispute resolution.

It is within this framework that the inherent powers of the High Courts, now preserved under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, assume constitutional importance.^[9] These powers exist not as an exception but as a safeguard against the misuse of the penal process. The Supreme Court's jurisprudence, from R.P. Kapur v. State of Punjab^[10] to State of Haryana v. Bhajan Lal,^[11] mandates judicial intervention where the allegations, even if accepted at face value, do not disclose a criminal offence. Judicial restraint in such cases does not protect the process; it permits constitutional injury.

Overcriminalisation ultimately corrodes the legitimacy of criminal law itself. When penal sanctions are deployed to enforce private bargains or to exert strategic pressure, criminal law ceases to operate as an instrument of public justice. The recent approach of the Karnataka High Court serves as an important corrective, reaffirming that criminal law exists to punish public wrongs, not to compensate private loss or resolve civil disputes through coercive means. Preserving this boundary is essential to upholding the constitutional promise that personal liberty may be curtailed only for reasons that are principled, proportionate, and justified in law.

1. Krishna Kripa, Supreme Court Bench Led by Justice Pardiwala Grants Anticipatory Bail in Civil Dispute Case, OneIndia News, Aug. 16, 2025. ↑

2. Rikhab Birani v. State of Uttar Pradesh, 2025 2025 LiveLaw (SC) 438↑

3. N.H. Poornima v. State of Karnataka, 2025: KHC-K: 7828. ↑

4. Sanjit Kumar v. State of Karnataka, 2025:KHC:32597. ↑

5. Hriday Ranjan Prasad Verma and Ors. V. State of Bihar and Anr., 2000 (2) SCR 859. ↑

6. S.N. Vijayalakshmi & Ors. vs. State of Karnataka & Anr. (2025 LiveLaw (SC) 758). ↑

7. Vidhi Centre for Legal Policy, The State of the System: Understanding the Scale of Crime and Punishment in India (2025). Here ↑

8. Ashworth, Principles of Criminal Law, 9th Edition, Oxford University Press, 2019, pp. 45-50. ↑

9. The Bharatiya Nagarik Suraksha Sanhita 2023, s 528. ↑

10. R.P. Kapur v State of Punjab 1960 SCR (3) 311. ↑

11. State of Haryana v Bhajan Lal 1990 SCR Supl. (3) 259. ↑

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