U

LAW OF CRIMES II TOPIC:

CONCEPT OF
PUNISHMENT
SUBMITTED TO- MR. AQUIB HUSSAIN

SUBMITTED BY- AAMIN BINT KHURSHID

B.A. LLB. (HONS.) IV SEM

 ACKNOWLEDGEMENT

In the name of Almighty Allah,

I express my sincere gratitude to our Crimes teacher, Mr. Aquib Hussain for his
continuous inspiration and encouragement, valuable suggestions, and untiring
support. His endless creative ideas have been an important source of my work. I
appreciate academic inspiration and personal help he provided to me.

I am pleased to acknowledge the valuable contribution made by Prof.(Dr.)

Nuzhat Parveen Khan, Head Faculty of law , for allowing me to use the
resources available in the University, which helped me in completion of this
project. I would also like to express my sincere thanks to all other Teachers and
Staff of Faculty of law who directly or indirectly helped me in completing this
work successfully.

Last but not the least, I would like to thank my parents, my sisters for their
affectionate encouragement and support all throughout this project. I would
also like to thank my friends for their support.

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 INTRODUCTION

DEFENITION AND MEANING OF PUNISHMENT:

“The infliction or imposition of a penalty as retribution for an offence.”

“In criminal law, any pain, penalty, suffering, or confinement inflicted upon a
person by the authority of the law and the judgment and sentence of a court,
for some crime or offense committed by him, or for his omission of a duty
enjoined by law.”

Some pain or penalty warranted by law, inflicted on a person, for the

commission of a crime or misdemeanour, or for the omission of the
performance of an act required by law, by the judgment and command of
some lawful court.

The right of society to punish is derived from a supposed agreement which the
persons who composes the primitive societies entered into, in order to keep
order and, indeed, the very existence of the state. According to others, it is the
interest and duty of man to live in society; to defend this right, society may
exert this principle in order to support itself, and this it may do, whenever the
acts punishable would en-danger the safety of the whole. And some are of
opinion that the foundation of this right is laid in public utility or necessity.
Delinquents are public enemies, and they must be disarmed and prevented
from doing evil, or society must be destroyed. But, if the social compact has
ever existed its end must have been the preservation of the natural rights of
the members and, therefore the effects of this fiction are the same with those
of the theory which takes abstract justice as the foundation of the right to
punish for, this justice, if well considered, is that which assures to each
member of the state, the free exercise of his rights. And if it should be found
that utility, the last source from which the right to punish is derived, is so
intimately united to justice that it is inseparable from it in the practice of law, it
will follow that every system founded on one of these principles must be
supported by the others.

To attain their social end, punishments should be exemplary, or capable of

intimidating those who might be tempted to imitate the guilty; reformatory, or
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such as should improve the condition of the convicts; personal, or such as are
at least calculated to wound the feelings or affect the rights of the relations of
the guilty divisible, or capable of being graduated and proportioned to the
offence, and the circumstances of each case; reparable, on account of the
fallibility of human justice.

Punishments are either corporal or not corporal. The former are, death, which
is usually denominated capital punishment; imprisonment, which is either with
or without labour; vide Penitentiary; whipping, in some states, though to the
honour of several of them, it is not tolerated in them; banishment and death.
The punishments which are not corporal, are fines; forfeitures; suspension or
deprivation of some political or civil right deprivation of office, and being
rendered incapable to hold office; compulsion to remove nuisances.

The object of punishment is to reform the offender; to deter him and others
from committing like offences; and to protect society.

Punishment to be just ought to be graduated to the enormity of the offence. It

should never exceed what is requisite to reform the criminal and to protect
society; for whatever goes beyond this, is cruelty and revenge, the relic of a
barbarous age. All the circumstances under which the offender acted should
be considered.

The Constitution of the United States, Amendment 8, forbids the infliction of

"cruel and unusual punishments."

It has been well observed that "when the rights of human nature are not
respected, those of the citizen are gradually disregarded. Those eras are in
history found fatal to liberty, in which cruel punishments predominate. Lenity
should be the guardian of moderate governments; severe penalties, the
instruments of despotism, may give a sudden check to temporary evils, but
they have a tendency to extend themselves to every class of crimes, and their
frequency hardens the sentiments of the people. ‘Une loi rigoureuse produit
des crimes’. The excess of the penalty flatters the imagination with the hope of
impunity, and thus becomes an advocate with the offender for the
perpetrating of the offence."

Punishments are infamous or not infamous. The former continue through life,
unless the offender has been pardoned, and are not dependant on the length
of time for which the party has been sentenced to suffer imprisonment; a
person convicted of a felony, perjury, and other infamous crimes cannot,

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therefore, be a witness nor hold any office, although the period for which he
may have been sentenced to imprisonment, may have expired by lapse of
time. Those punishments which are not infamous are such as are inflicted on
persons for misdemeanours, such as assaults and batteries, libels, and the like.

PURPOSE OF PUNISHMENT:
The Object of Punishment is to protect society from mischievous and
undesirable elements by deterring potential offenders, by preventing the
actual offenders from committing further offences and by reforming and
turning them into law abiding citizens.

Deterrence (prevention)

One reason given to justify punishment is that it is a measure to prevent

people from committing an offence - deterring previous offenders from re-
offending, and preventing those who may be contemplating an offence they
have not committed from actually committing it. This punishment is intended
to be sufficient that people would choose not to commit the crime rather than
experience the punishment. The aim is to deter everyone in the community
from committing offences.

Rehabilitation

Some punishment includes work to reform and rehabilitate the culprit so that
they will not commit the offence again. This is distinguished from deterrence,
in that the goal here is to change the offender's attitude to what they have
done, and make them come to see that their behaviour was wrong.

Incapacitation and societal protection

Incapacitation as a justification of punishment refers to the offender’s ability to

commit further offences being removed. Imprisonment separates offenders
from the community, removing or reducing their ability to carry out certain
crimes. The death penalty does this in a permanent (and irrevocable) way. In

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some societies, people who stole have been punished by having their hands
amputated.

Retribution

Criminal activities typically give a benefit to the offender and a loss to the
victim. Punishment has been justified as a measure of retributive justice,[7] in
which the goal is to try to rebalance any unjust advantage gained by ensuring
that the offender also suffers a loss. Sometimes viewed as a way of "getting
even" with a wrongdoer—the suffering of the wrongdoer is seen as a desired
goal in itself, even if it has no restorative benefits for the victim. One reason
societies have administered punishments is to diminish the perceived need for
retaliatory "street justice", blood feud and vigilantism.

Restoration

For minor offenses, punishment may take the form of the offender "righting
the wrong", or making restitution to the victim. Community service or
compensation orders are examples of this sort of penalty. In models of
“Restorative Justice,” victims take an active role in a process with their
offenders who are encouraged to take responsibility for their actions, "to
repair the harm they've done – by apologizing, returning stolen money, or
community service". The restorative justice approach aims to help the offender
want to avoid future offences.

Education and denunciation

Punishment can be explained by positive prevention theory to use the criminal

justice system to teach people what are the social norms for what is correct,
and acts as a reinforcement.

Punishment can serve as a means for society to publicly express denunciation

of an action as being criminal. Besides educating people regarding what is not
acceptable behaviour, it serves the dual function of preventing vigilante justice
by acknowledging public anger, while concurrently deterring future criminal
activity by stigmatizing the offender. This is sometimes called the "Expressive

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Theory" of denunciation. The pillory was a method for carrying out public
denunciation.

Unified theory

A unified theory of punishment brings together multiple penal purposes —

such as retribution, deterrence and rehabilitation — in a single, coherent
framework. Instead of punishment requiring we choose between them, unified
theorists argue that they work together as part of some wider goal such as the
protection of rights.

Theories of Punishments:

i) Deterrent Theory :

'To deter' means, "to abstain from action/ doing ". Deterrent means, "infliction
of severe punishments with punishments with a view to prevent the offender
from committing the crime again.

According to this theory, the object of punishment is not to only prevent the
wrongdoer from doing a wrong a second time, but also to make him an
example to others who have criminal tendencies. Salmond considers deterrent
aspects of criminal justice to be the most important for control of crime. A
Judge once said, “I don't punish you for stealing the sheep but so that sheep
may not be stolen." The aim of punishment is not revenge but terror.

According to Manu "penalty keeps the people under control, penalty protects
them, penalty remains awake when people are asleep, so the wise have
regarded punishment is a source of righteousness"

According to Paton "The deterrent theory emphasis the necessity of protecting

society, by so treating the prisoners that others will be deterred from breaking
law. The deterrent theory was the basis of punishment in England in the
Medieval Period. Severe and inhuman punishments were order of the day and
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inflicted even for minor offenses like pick pocketing and stealing etc. The
culprits were subjected to the severe punishment of death by stoning and
whipping. In India during the Mughal period, the penalty of a death sentence
or mutilation of the limbs was imposed even for the petty offenses of forgery
and stealing etc. Even today in moat of the Muslim countries, Such as Pakistan,
Iraq, Iran, Saudi Arabia, the deterrent theory is the basis of Penal
Jurisprudence.

There is a lot of criticism of the deterrent theory of punishment in modern

times. It has been criticized on the grounds that it has proved ineffective in
checking crimes and also that excessive harshness of punishment tends to
defeat its own purpose by arousing the sympathy of the public towards those
who are given cruel and inhuman punishment. Hardened criminals are not
afraid of punishment. Punishment losses its horror once the criminal is
punished.

ii) Retributive Theory

'Retributive' means, punitive or payback or make a return to." In Primitive

society punishment was mainly retributive. The person wronged was allowed
to have revenge against the wrongdoer. The Principle of 'an eye for an eye', 'a
tooth for a tooth ', a nail for nail, limb for limb was the basis of criminal
administration.

According to Justice Holmes 'It is commonly known that the early forms of
legal procedure were grounded in vengeance.'

According to Sir John Salmond the retributive purpose of punishment consist in

avenging the wrong done by the criminal to society.

The idea behind this theory is to make the offender realize the suffering / pain.
The advocates of this theory plead that the criminal deserve to suffer. The
suffering imposed by the State in its corporate capacity is considered the
political counterpart of individual revenge. It is urged that unless the criminal
receives the punishment he deserves, one or both of the following effects will
result, namely, the victim will seek individual revenge, which may mean
lynching (killing or punishing violently ), or the victim will refuse to make a
complaint or offer testimony and State will therefore be handicapped in
dealing with criminals . The modern criminology discards retribution in the

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sense of vengeance, but in the sense of reprobation, it must always be an
essential element in any form of punishment.

Critics of retributive theory points out that punishment per se is not a remedy
for the mischief committed by the offender. It merely aggravates the mischief.
Punishment in itself evil and can be justified only on the ground that it yields
better result. Revenge is wild justice. Retribution is only a subsidiary purpose
served by punishment.

iii) Preventive theory

Preventive theory is also known as 'theory of disablement.' According to this

theory, punishment is based on the proposition, "not to avenge crime but to
prevent it" The aim of this theory is to disable the criminal. Offenders are
disabled from repeating the crime by awarding punishments, such as death,
exile or forfeiture of an office. By putting the criminal in jail, he is prevented
from committing another crime.

The supporters of this theory recognize imprisonment as the best mode of

punishment because it serves as an effective deterrent as also a useful
preventive measure. Bentham supported the preventive theory because of its
humanizing influence on criminal law.

According to Justice Holmes "There can be no case in which the law-maker

makes certain conduct criminal without his thereby showing a wish and
purpose to prevent that conduct. Prevention would accordingly seem to be the
chief and only universal purpose of punishment. The law threaten certain pains
if you do certain things, intending thereby to give you a new motive for not
doing them. If you persist in doing them, it has to inflict the pains in order that
its threats may continue to be believed."

Critics point out that Preventative Punishment has the undesirable effect of
hardening first offenders, or juvenile offenders, when imprisonment is the
punishment, by putting them in the association of Harden Criminals.

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iv) Reformative Theory

According to Reformative theory, the object is of punishment is the

reformation of criminals. This theory seeks to bring about a change in the
attitude of offender so as to rehabilitate him as a law abiding member of
society. Even if an offender commits a crime under certain circumstances, he
does not cease to be a human being. The circumstances under which he
committed the crime may not occur again. Crime is a mental disease, caused
by different anti-social elements. Therefore the mental cure of criminals rather
than awarding punishment will serve the purpose. If the criminals are
educated and trained, they will be competent to behave well in the society.

The object of the punishment should be reform the offender. The criminal
must be educated and taught some art or craft or industry during his term of
imprisonment, so that they may be able to lead a good life and become a
responsible and respectable citizen after release from jail. While awarding
punishment judge should study the character and age of the offender, his early
breeding, family background, his education and environment, the
circumstances under which he or she committed the crime, the motive which
prompted him or her indulge in criminal activities, etc. The object of doing so is
to acquaint the judge with the circumstances under which the offence was
committed so that he could award punishment that could be served the ends
of justice.

Critics of this theory state that if Criminals are sent to prison to be transformed
into good citizens, a prison will no longer be a 'prison' but a dwelling house.
This theory has been proved to be successful in case of young offenders.

v) Expiatory Theory

Expiatory theory of Punishment is based on morals. According to this theory

repentance or expiation by offender itself is a punishment. If the offender
expiates or repents, he must be forgiven. Expiatory theory of punishment was
prevalent in ancient Indian criminal law. Expiations were performed by way of
uttering mantras, fasting or even burning oneself to death.

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vi) Theory of Compensation

According to Theory of Compensation the object of punishment must not be

merely to prevent further crimes but also to compensate the victim of the
Crime.

Critics point out that it tends to oversimplify the motive to crime.

PUNISHMENTS IN INDIAN PENAL CODE:

The Penal Law of India is the resource of definitions and descriptions of

substantive offences. It consists of 511 sections specifying different kinds of
offences. For these massive number of offences the punishment prescribed are
mainly 5 in numbers. Every offence describes the punishment also. But in
general the division is provided under Section 53 of IPC. They are as follows:

Section 53 Punishments.- The punishments to which offenders are liable under

the provisions of this Code are-

1. Death;
2. Imprisonment for life;
3. Imprisonment both rigorous and simple;
4. Forfeiture of property;
5. Fine.

1. DEATH SENTENCE:

Death sentence is the harshest of punishments provided in the IPC,

which involves the judicial killings or taking life of the accused as a form
of punishment. The question of whether the state has the right to take
the life of a person, however gruesome the offence he may have
committed, has always been a contested issue between moralists who
feel that the death sentence is required as a deterrent measure (if for
nothing else), and the progressives who argue that the judicial taking of
life is nothing else but court mandated murder.

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 The IPC provides for capital punishment (imprisonment for life as an
alternative punishment) for the following offences:

i) Waging, or attempting to wage war, or abetting waging of war, against

the Government of India (Section 121)

ii) Abetment of mutiny, if mutiny is committed (Section 132)

iii) Giving or fabricating false evidence upon which an innocent person

suffers death (Section 194)

iv) Murder (Section 302)

v) Abetment of suicide of a minor, or insane or intoxicated person (305)

vi) Attempt to Murder by a person under sentence of imprisonment for

life, if hurt is caused (Section 307)

vii) Punishment for murder by a life-convict – Sec. 303 [This Section was
struck down by the Supreme Court holding that it was unconstitutional,
while disposing the case Mithu v. State of Punjab, AIR 1983 SC 4731;

viii) Dacoity with murder (Section 369)

The Courts have a high range of discretionary powers in passing death

sentences. The death punishment is also called “Capital Punishment”. The
word “capital” means “the head or top of the column”. Thus the capital
punishment means “removal of head”, “death penalty” or “beheading”.

It is the maximum punishment possible to be imposed on a criminal. This

punishment occupies topmost position among the grades of punishments. This
punishment can be imposed in extreme cases and rarely that too in extremely
grave crimes.

The capital punishment can be imposed on a criminal who commits a pre-

planned and premeditated murder in cold blood. The offences with sections in
which the death penalty can be imposed are explained above.

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Most of the developed countries have removed death sentences from their
respective penal code due toagitations caused by the suggestions of
sociologists, reformists, criminologists, etc.

In India too, there is a serious discussion on this topic. Sections from 366 to
371 of the Criminal Procedure an. Code, 1973 explain the “Submission of Death
Sentences for Conformation”. Sections from 413 to 416 of Code, 1973 explain
the provisions for “execution, suspension, postponement of capital sentences”

CONSTITUTIONAL VALIDITY OF DEATH PENALTY:

The issue of death penalty has been debated, discussed, studied from a
prolonged time but till now no conclusion can be drawn about the retention or
abolishment of the provision. Death penalty has been a mode of punishment
from time immemorial which is practiced for the elimination of criminals and is
used as the punishment for the heinous crimes.

In many countries the death penalty is dropped and is replaced by life

imprisonment.

Various countries have different outlook towards crime in different ways. In

Arab countries they choose the retributive punishment of “an eye for an eye”
others have deterrent punishment. Of late there has been a shift towards
restorative and reformist approaches to punishment, including in India.

India is one of the 78 retentionist countries which have retained death penalty
on the ground that it will be awarded only in the ‘rarest of rare cases’ and for
‘special reasons’. Though what constitutes a ‘rarest of rare case’ or ‘special
reasons’ has not been answered either by the legislature or by the Supreme
Court.

The constitutional validity of the death penalty was challenged from time to
time in numerous cases starting from Jagmohan Singh v. State of U.P where
the SC rejected the argument that the death penalty is the violation of the
“right to life” which is guaranteed under article 19 of the Indian constitution. In
another case Rajendra Prasad v. State of UP, Justice Krishna Iyer has
empathetically stressed that death penalty is violative of articles 14, 19 and 21.
But a year later in the landmark case of Bachan Singh v. State
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of Punjab, by a majority of 4 to 1 (Bhagwati J.dissenting) the
Supreme Court overruled its earlier decision in Rajendra Prasad. It
expressed the view that death penalty, as an alternative punishment for
murder is not unreasonable and hence not violative of articles 14, 19 and
21 of the Constitution of India, because the “public order” contemplated by
clauses (2 to(4) ofArticle 19 is different from “law and order” and also en
unciated the principle of awarding death penalty only in the ‘rarest of rare
cases’. The Supreme Court in Machhi Singh v State of Punjab laid down the
broad outlines of the circumstances when death sentence should be imposed.

Similarly in various other cases the Supreme Court has given its views on death
penalty and on its constitutional validity. But the punishment of death penalty
is still used in India, some time back the death penalty was given to
Mohammad Ajmal Kasab. The Pakistani gunman convicted in 2008 Mumbai
attacks was sentenced to death by hanging and after a long discussion, politics
and debate was finally hanged on 21 November 2012. Next in the row is Afzal
Guru, convicted in 2001 Parliamentary attacks was also hanged after a huge
political discussion on 9 February 2013.The next convict in the death row is
Devendra Pal Singh Bhullar, convict of 1993 car bombing will be hanged in the
coming days as his mercy petition was rejected by the Supreme Court by
holding that in terror crime cases pleas of delay in execution of death sentence
cannot be a mitigating factor.

There has been a diverse opinion regarding the death penalty in India as some
are in the favour of the retention of the punishment while others are in the
favour of its abolishment. Those who are in the favour of death penalty argue
that it should be given in the most heinous and rarest of the rare crimes as for
example the Delhi gang rape case the demand for death penalty for the
accused was raised . But the people who are against the capital punishment
argue on the religious, moral and ethical grounds and declare it inhuman and
callous investment by unsure and unkempt society. It is also suggested that it
should be replaced with life imprisonment or any substitute must be brought
out.

2. Imprisonment for life

Life Imprisonment means a sentence of imprisonment running throughout the

remaining period of a convict's natural life (till death). But in practice it is not
so. According to Section 55 of Indian Penal Code, in every case in which
sentence of imprisonment for life shall have been passed, the appropriate

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Government may, without the consent of the offender, commute the
punishment for imprisonment of either description for a term not exceeding
fourteen years. Section 57 states that in calculating fractions of terms of
punishment, imprisonment for life shall be reckoned as equivalent to
imprisonment for twenty years.

The general public thinks that imprisonment for life means only 14 years
imprisonment, and the convict shall be released as soon as the 14 years period
is lapsed. It is wrong presumption. Actually, the punishment under the
Imprisonment for Life means imprisonment for the whole of the remaining
period of the convicted person’s natural life. During the British Rule, the
convicts under “transportation for life” was used to be deported to the
Andamans and other Colonies and were taken for ever from the society of all
who were acquainted with him. After independence, such system was
stopped. Now the convicts under imprisonment for life are imprisoned in the
Prisons of the States concerned. The life convict is not entitled to automatic
release on completion of fourteen years’ imprisonment, unless on special
occasions, the Government may pass an order considering the good behaviour
and conduct of the convict remitting the balance of imprisonment for life.

K.M. Nanavati v. State of Maharashtra, (AIR 1962 SC 605)

In this case supreme court held that imprisonment for life means
rigorous imprisonment for life and not simple Imprisonment.

POWER TO SUSPEND, REMIT OR COMMUTE SENTENCE:

This section deals with the remission and suspension of sentences. Remission
implies cutting short the sentence to the period already undergone and wiping
out the remaining sentence which has not been served out. But such remission
or suspension does not in any way interfere with the order of conviction
passed by the Court it only affects the execution of the sentence.

The power to remit or suspend the sentence under this section is vested in the
Government. The power is discretionary and the Government is not required
to record reasons for remitting the unexpired portion of the sentence in the
remission order.

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However, it does not mean that the Government may use (misuse) the power
for personal vendetta or favouritism. An order of remission or suspension
issued on extraneous and unreasonable grounds will vitiate the exercise of
power under this section. It has been held that the exercise of power under
Section 432 is subject to judicial review.

Section 432 empowers the appropriate Government to remit wholly a partly

the sentence of fine which is a substantive sentence but not the sentence of
imprisonment in default of fine which is not a substantive sentence, it being
only a contingent imprisonment. It can be avoided by payment of fine.

The Constitution of India confers power on the Head of the State to tender
pardons and reprieves at any stage and even before conviction. Under Article
161, the Head of the Executive may grant pardon to a prisoner who is
condemned to death even during the pendency of appeal in the Supreme
Court in exercise of its mercy jurisdiction.

Where a State granted certain remission to prisoners belonging to Scheduled

Castes and Scheduled Tribes only and denied the same to other caste
prisoners, such remission was held to be discriminatory and, therefore,
violative of the Constitution.

The Supreme Court in State of Madhya Pradesh v. Mohan Singh, held that the
power to grant remission is no doubt discretionary but it is subject to
constitutional rights of prisoners and cannot be used so as to discriminate the
prisoners exclusively on the basis of caste or race. The Court further observed
that special remission granted to prisoners of SC & ST bears no reasonable
nexus with the advancement of these Castes and Tribes and, therefore, does
not qualify for protection under Article 15 (4) of the Constitution. The Madhya
Pradesh High Court had suggested that if the State Government wanted to
grant remission to SC/ST prisoners at any cost, it should extend similar benefit
to other caste prisoners as well. But the Apex Court did not approve this
reasoning of the High Court and the order of remission was held to be invalid.

As regards the sentence of imprisonment for life, a person so sentenced may

be detained to serve the life-term in prison unless his sentence is commuted or
remitted by the Government in exercise of its powers under Sections 432-433
of the Code. The Court has no interference in the matter of remission of the
sentence of lifers.

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The Courts have no role to play in the matter of granting remission or
commutation of sentences, it being left to the exclusive power of the
Government. The Court becomes functus officio after awarding conviction and
imposing the sentence. The execution of the sentence is the function entrusted
to the Government and suspension, remission or commutation constitute a
part of such execution of sentences.

Therefore, the Court while awarding the sentence of imprisonment for life
cannot specify in the order a particular minimum term of imprisonment which
the convicted person must undergo before he is allowed remission or a release
from jail. Any such direction of the Court would be violative of the
constitutional mandate contained in Articles 72 and 161 of the Constitution of
India.

The Supreme Court in Sher Singh v. State of Punjab, has observed that
petitions filed under Articles 72 and 161 of the Constitution of India or under
Sections 432 and 433 of CrPC must be disposed of expeditiously, within a
period of three months so that the public confidence in the administration of
criminal justice is not shaken due to inordinate delays and laches.

The expression appropriate Government used in Section 432 or 433 refers to

the State in which the prisoner has been convicted and sentenced and only
such Government has the power to remit or suspend the sentence, and not the
State where the prisoner might have been subsequently transferred, or where
the offence is committed.

The Supreme Court has ruled that in respect of offences under Sections 489-A
and 489D IPC which relate to currency notes and Bank notes, the Central
Government would be the appropriate Government for the purpose of Section
432, CrPC.

DIFFERENCE BETWEEN COMMUTATION AND REMISSION:

The difference between both of these is that in Commutation, the punishment

is altered to one of a different sort than that originally proposed whereas in
remission the amount of punishment is reduced without changing the nature
and character of the punishment.

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3. Imprisonment - Rigorous and Simple :
Rigorous Imprisonment –

Imprisonment may be rigorous with hard labour such as digging earth,

cutting wood etc.

According to Section 60 of I.P.C in every case in which an offender is

punishable with imprisonment which may be of either description, it shall
be competent to the Court which sentences such offender to direct in the
sentence that such imprisonment shall be wholly rigorous, or that such
imprisonment shall be wholly simple or that any part of such imprisonment
shall be rigorous and the rest simple.

The Indian Penal Code prescribes imprisonment as punishment for -

(1) Giving or fabricating false evidence with intent to procure conviction of

capital offence (Section 194)

(2) House-trespass in order to commit offence punishable with death

(Section 449)

Simple Imprisonment :

Simple imprisonment is imposed for small offences like wrongful restraint,

defamation etc. In case of simple imprisonment the convict will not be
forced to do any hard manual labour. There are some offences which are
punishable with simple imprisonment are as follows :

1) Refusing to take oath (Section 178)

2) Defamation (Section 500)

3) Wrongful restraint

4) Misconduct by a drunken person, etc. (Section 510)

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 Solitary Confinement

Solitary Confinement means keeping a prisoner thoroughly isolated from

any kind of contact with the outside A harsh and hardened convict may be
confined in a separate cell to correct his conduct. Court can award this
punishment only when the offence is punishable with rigorous
imprisonment.

Solitary confinement may be imposed subject to the following restrictions

(a) Solitary confinement should not exceed three months of the

Substantive term of imprisonment

(b) It cannot be awarded where imprisonment is not part of the

substantive sentence.

(c) It cannot be awarded for the whole of term of imprisonment

(d) It cannot also be awarded where imprisonment is in lieu of fine.

According to Section 74 of I.P.C in no case the sentence of solitary

confinement be awarded more than fourteen days at a time and it must be
imposed at intervals.

4. Forfeiture of property –

Forfeiture of property means taking away the property of the criminal by

the State. Forfeiture of property is now abolished except in the case of
following offences:

1) Committing depredation on territories of Power at peace with the

Government of India (Section 126)

2) Receiving property taken by war or depredation mentioned in sections

125 and 126 (Section 127).

“Forfeiture” is the divestiture of specific property without compensation in

consequence of some default or act of forbidden by law. The Courts may order
for forfeiture of property of the accused in certain occasions.

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In white collar crimes, and where a Government employee or any private
person accumulates black money and black assets, and there is no genuine
answer and proof for such money and properties with such person, the Court
may award for forfeiture of property.

In cases of smugglers, goondas, anti-national personalities, etc., the

Government or the Courts are empowered to forfeiture of property of such
anti-social elements.

5. Fine

The Courts may impose fine as sole imprisonment or alternative or it may

be imposed in addition to the imprisonment. The Indian Penal Code, 1860
prescribes fine along with imprisonment in respect of certain offences. In
default of fine, imprisonment may be imposed. Thus there are various
penalties as discussed above which are imposed differently in different
offences. The term, nature, amount etc. varies in each cases and offences
and also according to Courts. Although all types of punishments like
retributive, reformative, preventive, deterrent are provided in IPC it is
stated that reformative approach to punishment should be the object of
criminal law.

Dull v State (AIR 1958)

In this case the court enunciated the principle of punishment. The object of
punishment has to serve the main purpose namely;

1. To prevent the offender from repeating the crime

2. To prevent the like-minded persons from committing the crime

Appropriate punishment can be determined by the court by taking into

consideration several factors such as:

1. Gravity or magnitude of the offence

2. Circumstance in which the crime was committed
3. Age and character of the accused

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4. Injury to the individual or society
5. Reformation of the offender
6. Maximum penalty prescribed should be confined to worst cases

6 TYPES OF PUNISHMENTS (NOT MENTIONED IN SEC 53

IPC)
1. Compensation to the victim

2. Disqualification for holding office

3. Externment- a form of punishment in which an accused is sent out of

the place of his residence to another place for a specified period of time
as mentioned in an order. This is done within a territory.

Transportation- Here, the person is sent out from one country to

another.

4. Community Service: It was suggested by the IPC Amendment Bill 1978

to incorporate under Sec 53 IPC.

5. Public Censure: It means publication of name of person recorded in

such crimes. The Law Commission of India in 42nd report said that it
should be incorporated under Sec 53 IPC.

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 CONCLUSION
The problem of criminality must be approached from a realistic and not
dogmatic point of view. So viewed, it would be discovered that all men may
not be saints but they certainly are, as a rule, sinners and criminals. Law
abiding citizen is the rule and law breaker, the exception; laws should not be
laid down solely with reference to the exceptions though they must provide for
them too. Secondly, it should not be forgotten that crimes and violations of
law are to no small extent, due to unhappy situations and defective
organisation of society. Hence, the need to approach the problem of the crime
from a sympathetic and humanitarian point of view becomes imminent and
necessary.

Merits and importance of Reformative Theory, in Administration of Criminal

Justice.—After intensive research it has been found that certain human
instincts which germinate crime e.g. greed, jealousy, vengeance, superiority
and killer spirit cannot be obliterated hence wherever human beings will
reside, the crime will also register its presence. To tackle this, it was thought
proper that for humane, humanitarian and human rights and escape
barbarism, the criminal should be treated as a patient and his brain washing
and proper treatment by good behaviour and making him wise regarding the
pros and coins of criminal life, it is possible to get the criminal rehabilitated in
the main stream of the society and the blot of being a prisoner should be
removed by introducing the system of Probation, Parole, Borstal Schools, First
offenders relaxation, etc. for new criminals and for recedivist and hardened
criminals the efforts of making them realise that they are humans and should
behave like humans. The hard core category of criminals happen to be small in
numbers and during their prison term by their proper treatment of their
altitude through Psychological Therapy, Yoga and Surmons and by releasing
them on Parole to check the change in their attitude, criminals may be
reformed and a little success will lead to big results and savings. The
surrendering of big and notorious dacoits to the administration has proved
that brain washing of a criminal is possible and their return to normal life in the
main stream ofthe society is also possible—It is better to apply the scheme of
rehabilitation of criminals to the society rather than to obliterate or eradicate
them. The Socialist School of Thought and Reforms have been successful in
producing positive results of this Reformation Theory of Punishment. In our old

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culture, the device of expiation was permitted and adopted to clean the
blemish of guilt and restitute in him the attributes of innocence.

The criticism that hardcore and habitual criminals cannot be re-formed

becomes tooth and clawless when we find that their degree of killer spirit may
be controlled, lessened and regulated by engaging them in different treatment
devices of reformation. Moreover, the concept of victomology is gathering
grounds and the plea bargaining introduced in Cr. P,C. together will reduce (by
obtaining compensation) the retaliation and vengeance from the side of victim
of the crime and as such reduce criminality.

Salmond concludes that the perfect ‘system of criminal justice is based on the
compromise between reformative and deterrent theories. The deterrent
principle should have the last word.

Administration of justice through courts of law has now become one of the
important functions of the state. The courts administer justice according to
laws framed by the legislature. The chief merits of administrations of justice
are its uniformity, certainty, impartiality and utility. The judges who impart
justice are bound to give their decisions according to the fixed principles of law
and cannot act arbitrarily. The laws being mostly codified, they a e known to
the citizens which enables them to regulate their conduct accordingly.
Codification also helps judges in applying the law uniformly without any fear or
favour.

Despite the aforesaid advantages, the administration of justice suffers from

certain disadvantages also. The main of these are rigidity, formality and
complexity of laws. Sir, Salmond has observed that law, undoubtedly is a
remedy for greater evil, but it brings with it evils of its own.

Be that as it may, it must be stated that the advantages of administration of

justice far outweigh its disadvantages and it is an effective media for
establishment of rule of law in modern democracies.

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 BIBLIOGRAPHY

1. Indian Penal Code, 1860 Bare Act

2. Criminal Law PSA Pillai’s
3. Ratanlal-Dhirajlal
4. Indian Kanoon
5. Manupatra
6. SCC Online

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