KINDS OF PUNISHMENT UNDER INDIAN

PENAL CODE

A research proposal submitted in fulfillment of the course Criminal Law I for

the requirement of degree of BA.LL.B(Hons.) for the Academic Session 2019-
20

SUBMITTED BY:
Andlib Imrose
1915
SUBMITTED TO:
Dr. Fr. Peter Ladis

August, 2019

Chanakya National Law University

Nyaya Nagar, Mithapur

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 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.A. LL.B (Hons.) Project Report entitle
“Kinds Of Punishment Under Indian Penal Code”

Submitted at Chanakya National Law University, Patna is an authentic record of my work

carried out under the supervision of Dr. FR. PETER LADIS F. I have not submitted this work
elsewhere for any other degree or diploma. I am fully responsible for the contents of my
Project Report.

(Signature of the Candidate)

ANDLIB IMROSE
Chanakya National Law University, Patna

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 ACKNOWLEDGEMENT

Any project completed or done in isolation is unthinkable. This project, although prepared by
me, is a culmination of efforts of a lot of people. Firstly, I would like to thank our Professor
Dr. FR. PETER LADIS F. for, helping me in making the project on “KINDS OF
PUNISHMENT UNDER INDIAN PENAL CODE” for his valuable suggestions towards
the making of this project.

Further to that, I would also like to express my gratitude towards our seniors who did a lot of
help for the completion of this project. The contributions made by my classmates and friends
are, definitely, worth mentioning.

I would like to express my gratitude towards the library staff for their help also. I would also
like to thank the persons asked for help by me without whose support this project would not
have been completed.

I would like to express my gratitude towards the Almighty for obvious reasons. Moreover,
thanks to all those who helped me in any way be it words, presence, Encouragement or
blessings.

ANDLIB IMROSE

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 INTRODUCTION
The sword represented in the statute of Goddess of Justice- Iustitia conveys the idea that
justice can be swift and final. This idea is very well reflected in the justice delivery system
through the concept of punishments. Penal laws have played a very significant role in
balancing peace and harmony in the society. The purpose behind writing this draft is to
analyze various forms of punishments that have originated from time immemorial. The topic
is interesting because it conceptualizes various modes of punishment and their role in shaping
the society. The problem sought in the draft is to categorize different kinds of punishments
based on theories and origin. At the same time, various landmark precedents in reference to
capital punishments have been analyzed. The research methodology used is descriptive. It can
be concluded that punishments have been changed from time to time as per the needs and
demands of the ever-changing society.

OBJECTIVES
The objectives of this research work are:

 To have an understanding of different kind of punishment.

 To know about various kind punishment given under Indian Penal Code.
 To analyze whether the current legislations and penal laws are sufficient enough to
manage the crimes in the ever developing digital society.

HYPOTHESIS
1. Under IPC, the maximum punishment is given but not the least
2. The kinds of punishment under IPC are not sufficient to curb all kinds of crime.

RESEARCH METHODOLOGY
References in the project will be taken from web journals, articles, newspaper, websites and
books. However every reference will be taken in an unplagiarised manner and due credit will
be given to each source in the bibliography section. Views would be presented on each topic
with no outsourcing of facts. Every view presented will be completely original in form of
comments and the facts and other contents will be interpretation of authentic materials. The
reason for choosing doctrinal way of research is because this is such a topic on which facts

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and data is already available and it depends on an individual that how he interprets such facts.
No discovery or invention of facts is required for this topic of project.

SOURCES OF DATA

The researcher has utilized the primary and secondary sources of information in the project.
The primary sources include judicial enactments, international enactments etc. The secondary
sources books, web journals, magazines, articles and blogs.

LIMITATION

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 CHAPTER I: PUNISHMENT DEFINITION AND HISTORICAL BACKGROUND

With the evolution of societies and humans, the different forms of punishments have also
undergone sea changes. The development of humans from unsocial individual to a social
being could only be possible due to fear and reciprocity. With the man turning out to be a
social animal his actions were more into the radar of other fellow humans who ended putting
more limitation on his social actions. Therefore if there were any instances where the action
of man were non-social in nature, he came in direct conflict with other fellow beings. A set of
some sort of rule and regulations gradually emerged which kept a check on such kinds of
unsocial activities. Such a mechanism gave birth to archaic criminal law.

Any act which deliberately inflicts any form of suffering on an offender which is similar to
that which the perpetrator of the offence has inflicted on his / her victims is referred to as
punishment. Punishment can be regarded as the response to the deviance in a society and can
take various forms. Certain punishments such as imprisonment and death sentences are
dispensed by the government authorities whereas other formal punishments involve civil law
suits either to restore the relations among the parties or to compensate for personal injuries,
and further prevent any wrongful conduct. An informal sanctions by the family, friends or
any other extralegal groups to promote their agendas can also be regarded as part of
punishments. The primary purpose of punishments is to maintain the and regulate the social
order by serving to dramatize the evil of a particular conduct in the society, and provide the
means for social engineering by aiming at enhancing the quality of life.

In order to have a clear understanding of various variation in punishments over time and
place it is equally important to have a historical investigation of punishments. Owing to
current aspects of global development and new world order which have emerged in the
recent times, the investigation of punishments from a comparative historical perspectives
become even more important in order to differentiate between the good and the bad practices
on the cultural and national experiences. It is on the basis of this potential discovery of
punishment responses and principles which help in improving our understanding of criminal
sanctions and punishments in various societies across the globe.

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One of the crucial part of criminal justice system is punishment which is primarily a form of
expression of social condemnation of crime by collective conscience. Durkheim.The basis of
punishment has been some or the other proposition that there must be certain penalty for
misdemeanor or the wrongdoing. Punishment is inflicted broadly for two reasons; one is that
the person who has done any wrong should also undergo the same circumstances and suffer
for it; the other aspect is that inflicting punishment deters other fellow beings from doing
wrong. Similar proposition is followed while inflicting the capital punishment.

Various theories of punishment help in determining the purpose and goals of the punishment
and can further be used as a basis to analyze the viability of punishment as they exist in the
given criminal justice system. The first part of the article deals with the definition of
punishment and as to how has the definition have evolved into the present aspect. Second part
of the paper tries to touch upon the constraints in the use of punishments in India. The article
further tries to evaluate different kinds of punishment under the Indian Penal Code of 1860.
The fourth part of the paper deals into the very controversial question whether death penalty
should be abolished or not followed by conclusion suggestion and criticism.

CHAPTER II: CONSTRAINTS IN THE USE OF PUNISHMENT IN INDIA

In present time there exists no structured criminal sentencing guidelines in India neither the
legislature nor the judiciary has come up with any of such structured criminal sentencing
guidelines. According to section 235 (2) of Cr.P.C. merely the hearing procedure has to be
adhered to while deciding the quantum of sentence after the conviction is done. In a manner
one can say that it is is rather more of a mercy plea provisional opportunity as the
submissions made by the convict may even be outside the facts in issue and the judge could
easily be influenced by the social economic standing of the convict in deciding a sentence.

Supreme Court being fully aware of the absence of such guidelines has come up with
provision of judicial guidance in the form of principles and factors that the courts must
adhere to do while exercising sentencing discretion. It is rather worrisome and insufficient in
order to determine the appropriate sentence owing to the individualization while sentencing
and has ended up creating enormous amount of uncertainties in the quantum of punishments
being awarded with almost similar sets of facts.

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For justice to be delivered punishment requires deliberation outside the nature of crime
committed. Currently there exists a vacuum in the machinery of justice dispensation in India
since the sentencing of the case is left to the discretion of the judges.

This was duly noted by the Malimath Committee Report on Criminal Law Reform in the year
2003 which recommended incorporation of sentencing guidelines for aiding the judiciary in
deciding appropriate sentence. Even the Law Commission has recorded the existing disparity
in sentencing owing to discretion and personal biases of the judges. Since independence
Indian judiciary has paved a long journey and has come of age which makes it even more
crucial to have an appropriate sentencing policy. Certainty and logicality needs to be
emphasized upon which is possible through sentencing guidelines. It is only by so doing that
the retributive and just desert theories of criminal punishments can be met.

Court in the case of SushilMurmu v. State of Jharkhand 1 whereby a human sacrifice of nine
year old was made in order to appease the deity have observed that:

A convict hovers between life and death when the question of gravity
of the offence and award of adequate sentence comes up for
consideration. Mankind has shifted from the state of nature towards a
civilized society and it is no longer the physical opinion of the
majority that takes away the liberty of a citizen by convicting him and
making him suffer a sentence of imprisonment. Award of
punishment…..is the outcome of cool deliberations and the screening
of the material by the informed man i.e. the Judge that leads to
determination of the lis.
The principle of proportion between crime and punishment is a
principle of just desert that serves as the foundation of every criminal
sentence that is justifiable. As a principle of criminal justice it is
hardly less familiar or less important than the principle that only the
guilty ought to be punished. Indeed, the requirement that punishment
not be disproportionately great, which is a corollary of just desert, is
dictated by the same principle that does not allow punishment of the
innocent, for any punishment in excess of what is deserved for the
criminal conduct is punishment without guilt.
The criminal law adheres in general to the principle of
proportionalityin prescribing liability according to the culpability of
each kind of criminal conduct. It ordinarily allows some significant
discretion to the Judge in arriving at a sentence in each case,
presumably to permit sentences that reflect more subtle
considerations of culpability that are raised by the special facts of
each case. Judges in essence affirm that punishment ought always to
fit the crime; yet in practice sentences are determined largely by other
considerations. Sometimes it is the correctional needs of the
1
(2004) 2 SCC 338. (Accessed on 15th August 2019; 3:00pm)

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 perpetrator that are offered to justify a sentence. Sometimes the
desirability of keeping him out of circulation, and sometimes even the
traffic results of his crime.Inevitably these considerations cause a
departure from just desert as the basis of punishment and create cases
of apparent injustice that are serious and widespread
The task of sentencing function of the Indian judiciary, sometimes, is a matter of ‘feelings’ of
the judges and may not be strictly statutory provisional pronouncement. That further attests to
the fact that gravity of punishment is individualised - differs or varies from individual to
individual case. It could also be a ‘view’ and the intent may be implicit in the minds of the
arbiters.

CHAPTER III: KINDS OF PUNISHMENT UNDER IPC

History of punishment is as old as Man himself the instance can be found from the story of
Adam and Eve who violated God's commandment due to which they were descendant to
earth. Broadly speaking the development of punishment could be possible because of the
impulse of vengeance or with the sense of imparting stability in the societies.
India is considered to have the oldest cultural society in the world. For a good governanace of
any society the adherence to social norms and values is pivotal. The same was realised in the
ancient India as well whereby the concept of danda evolved into the legal and the social
system. The term danda is similar to that of Punishment inn mordern times whereby those
violating the various laws were punished accordingly. The laws were promulgated by the
ruling classes on the principles of Varna or class legislation. Various dharmashastras,
material, demonstrate the judiciary as an integral part of the governance. Various rules and
regulations relating to punishments to be awarded were duly prescribed under the smritis. Of
the most important crimes were the abuse and defamation and the punishments were decided
on the basis of castes through which the culprit fell in.

Indian penal code under sections 53 has prescribed for the mode of punishment applicable on
the existing system in India. Primarily there are 5 kinds of punishment under the said section
and they are as follows:-
 death penalty
 life imprisonment
 imprisonment:- rigorous and simple
 forfeiture of property and

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  fines

III.1. Death Penalty

The word capital punishment is execution of a person through means of judicial process for
the crimes as has been prescribed under various criminal law justice mechanism in India.The
origin of the word capital can be traced from the Latin language word capitalis which literally
means regarding the head, therefore a capital crime is one where by the offender is punished
by the serving of the head.
Capital punishment or death sentence is one of the most effective means of retributive form
of justice and has been in practice for centuries whereby a person who kills another must be
eliminated from the society. Primarily the punishment is the combination of deterrent and
retributive theories of punishment. In the current time period few of the common modes of
execution of death sentences includes electrocution, shooting, gas chamber, hanging, lethal
injection which are in practice in various parts of world. The issue of death penalty has been
the subject of an age old debate among the retentionist and the abolitionists who argue in
favourof and against the utility of this form of punishment. It won't be wrong to say that
capital punishment is definitely against the notions of modern rehabilitative aspects of
treating the offenders

III.2. Imprisonment for life

Imprisonment for life is also one among the five form of punishments as has been prescribed
under section 53 of Indian penal code 1860. The said section classifies the punishment into
two, which is, rigorous imprisonment for life and simple imprisonment for life. It is to be
noted that it is the meaning of imprisonment for life must be read with section 45 of the
Indian penal code whereby the word life denotes the life of human being unless the contrary
appears from the context.
A sentence of imprisonment for life does not automatically expire at the end of 20 years
including the remission because the administrative rules framed under various jail manuals
cannot supersede the statutory provision of the Indian penal code. Moreover the discretion
lies in the hand of the appropriate government to remit or refuse to remit the sentence and
that no writ can be issued directing the state government to release the prisoner. In case when

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the government of the state wishes to grant remission to the convict person then the state
government can do so under section 401 of the code of criminal procedure2
Further, the Supreme Court has held in the case of GopalVinayakGodse v. State of
Maharashtra3that the sentence for transfer of life must prima facie be treated as transportation
or imprisonment for whole of the remaining period of the convicted persons natural life

III.3. Imprisonment- Rigorous and Simple

Imprisonment primarily was considered as a mode of custody for the under trial persons.
Among the main purpose of imprisonment disabling the offender who is or might be a
potential danger to the society is disabled by locking him up. Another purpose is to stop the
prospective offender by threat of long-term lock up. In a way we can say that the main
purpose of imprisonment is not only punitive but also restorative that is to make an offender
non- offender by providing healthy and transforming conditions to the offender and
rehabilitate.

Among the widely accepted theories of punishment correctional techniques introduced in

prison institutions all throughout the world is widely accepted forms of punishment as it aims
at serving as an efficient measure for reforming the criminal and at the same time also aims at
protecting the society from anti-social elements. Imprisonment May broadly be categorised
into two kinds one being rigorous and the other being simple.
Under the rigorous imprisonment it is made sure by the present authority that the offender is
put to hard labor such as digging earth, drawing water, etc and thereby give effect to the court
sentence.4However this must be clearly understood that giving effect to the sentence means
that it shall be illegal to exceed it and therefore it is the duty of the present official not to go
beyond doing things which are not covered by the sentence eggs as they are in violation of
article 19 of the Constitution of India. It was held in the case of Sunil Batra v. Delhi
Administration5that sense and sympathy are not enemies of penal asylums.

2
State v. Ratan Singh AIR 1976 SC 155 (Accessed on 15th August2019; 3:15pm)
3
1961 SC 600 (Accessed on 15th August 2019; 3:45pm)
4
Section 16, Prison Act 1900 (Accessed on 16th August 2019; 3:00pm)
5
AIR 1980 SC 1579 (Accessed on 16th August 2019; 3:47pm)

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While talking about simple imprisonment the offender is confined to jail and is not put to any
kind of labour. In the case of Phul Singh v. State of Haryana6it was held that the age of the
offender, signs of repentance, no criminal antecedent and the victim and her parents having
forgiven the offender shall be taken into consideration to record the sentence.Further the apex
court in the case of Moti Ram Lal v. State of M.P. 7 held the question of sentence is always a
difficult and complex question...and that the sentence should bring home consciousness of the
guilty party that, "... the offence which was committed was against his own interest as well as
the interest of the society of which he happens to be a member."

In one of the landmark judgment the supreme court held that then position of hard labour on
prisoner who is undergoing the rigorous imprisonment is not violative of article 23 (1) of the
Constitution of India as it is lawful to employ the prisoner sentenced to rigorous
imprisonment despite the fact that he consents to do it or not.8

III.4. Fines
Finance in present day have been increasingly favoured by the law as well as the judicial
authorities as an alternative form of punishment. Fines are mostly composed when it comes
to you crying related to property such as embezzlement, fraud, theft, violation of minor
offences, gambling offences, etc.

In minor offences, imposition of fines is the most prevalent punishment, the amount of which
goes either to the treasury or to the victim in the form of compensation. According to the
penal code the fine may be imposed in four different ways:
1. Offences where fines with maximum limit is the sole punishment.
2. Offences where limited amount of fine is imposed as an alternate punishment.
3. Offences where fines are crucially imposed along with some other kind of punishment.
4. Offences in which it is compulsory to impose fine but there is no financial limit to it.

The challenges involved in imposing financial penalties is the amount of fine, and ensuring
its payment. Provisions of section 421 of the code of criminal procedure 1973 9 are applied
6
AIR 1980 SC 249 (Accessed on 17th August 2019; 5:00pm)
7
AIR 1972 SC 2438(Accessed on 17th August 2019;9:00pm)
8
State of Gujarat versus Hon’ble High Court of Gujarat, AIR 1998 SC 3164 (Accessed on 18th August
2019;6:00pm)
9
Section 421 in The Code Of Criminal Procedure, 1973 (Accessed on 18th August 2019;6:15pm)
Warrant for levy of fine.

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when it comes to recovery of fines in India. If the accused fails to pay the fine, the unpaid
fine is converted into imprisonment by Court decision, based on the gravity of that individual
case.

III.5.Forfeiture of Property
Although Section 61 has been repealed but in Section 126, 127, 169 forfeiture of property is
still there. It can also be known as attachment of property. The one who is punished with
forfeiture of property will not be allowed to enjoy his movable or immovable property which
has been forfeited.

(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the
recovery of the fine in either or both of the following ways, that is to say, it may-
(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the
offender;
(b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land
revenue from the movable or immovable property, or both, of the defaulter: Provided that, if the sentence directs
that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the
whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be
recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses
or compensation out of the fine under section 357.
(2) The State Government may make rules regulating the manner In which warrants under clause (a) of sub-
section (1) are to be executed, and for the summary determination of any claims made by any person other than
the offender in respect of any property attached in execution of such warrant.
(3) Where the Court issues a warrant to the Collector under clause (b) of sub- section (1), the Collector shall
realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant
were a certificate issued under such law: Provided that no such warrant shall be executed by the arrest or
detention in prison of the offender.

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 III.5Solitary Confinement in India
Every imprisonment is a confinement. When a person is not allowed to move freely beyond
that circumsanbing limit. The person is confined in a particular circumscribing limit, Solitary
Confinement takes away society from a criminal. There is no access with any human being.
Criminal is denied of his fellow beings. Since the basic neccessaity of socializing is snatched
from human they behave just like animal.

Many prisoners are released directly to the streets after the isolation of years. Numerous
studies had expressed the physiological effects of the solitary confinement , which can
produce the symptoms, such as:

● Visual and auditory hallucinations

● Hypersensitivity to noise and touch

● Insomnia

● Uncontrollable feelings of rage and fear

● Distortions of time and perception

Solitary Confinment is a cruel and hrash punishment and it is the most cruel punishment.
Since it is the wrost form of punishment the court give certain guidelines like:
a. Not more than 7 days a month, it can be given

b. At a stretch cannot given for more than 14 days.

c. No person can be given solitary confinement for a term of 3 months.

It is the power of the court to decide that who will be given solitary confinement.

A punishment is something which were given to the wrong doer to make them realise their
mistake and faults. Those punishments should be given in such a way which should make the
person not to do any wrong again. So the punishment should be learnable, it should not make
the prisoners mentally and physically week and get affected with stress. So many people who
undergone the punishment were requesting to cancel this kind of punishment. In order to

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abolish this punishment many researchers were stating their researches against the solitary
confinemen

In Unni Krishnan & Ors. v. State of Andhra Pradesh & Ors., 1993 SC As per the order from
Supreme Court ―Right against solitary confinement‖ is one of the rights that falls under
Article 21 (Right to Life) of the Constitution. In this case, the Apex court declares that the
right against solitary confinement falls under the Right to Life in Article 21 of the Indian
Constitution.

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 CHAPTER IV: DEATH PENALTY: SHOULD IT BE ABOLISHED?

Death penalty has been in existence in almost all parts of the world from the very ancient
times itself. For the primitive societies death by violence was considered to be an ordinary
phenomena in order to eliminate the dangerous element from the group that and excise were
considered to be the two main principal devices therefore that in the primitive days who was
considered to be the quickest mode of retribution as well as deterrence.

Considered as one of the strictest form of punishment death penalty depends, as a rule,
largely upon the degree of culpability of criminal act and danger posed by it to the society at
large and alsothe depravity of the offender. The feeling of retaliation in the primitive society
used to be very high and to pay the kith and kin of the victim was regarded as an honorable
act. With the societies coming under the organization of state and state assuming the role of
guardians of the people, it is now the state who is held answerable to the family members of
the victim by appropriately punishing the murderer who had no regard for the life of the
victim. In present time it is the state who is bestowed with the responsibility to guard the
society against any form of criminal elements and therefore it becomes the duty of the state to
polish any offender.The prime object of capital punishment is based on the theory of
deterrent value. "Punishment is before all things deterrent and the chief and of the criminal
law is to make an example and the warning to all thelike minded with him."10

The propounders of utilitarianism had emphasized that punishment is primarily an evil. The
very first person to propose that death penalty ought to be abolished was the stallion
philosopher and reformer CesareBeccaria.

Time and purpose have a strong influence on deciding as to what the punishment should be.
In the earlier days the main purpose of punishing a person was to inflect a satisfy human
desire to take vengeance. In present days punishment has become more of an egg for
reforming the criminal. This, however, is not possible as death penalty admits no reformation.
Thus the abolitionists want that capital punishment should be done away with from the statute
books. One of the famous saying by Mahatma Gandhi is as follows:-

10
Salmond (Accessed on 18th August 2019;6:45pm)

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 'An eye for an eye makes the whole world blind.'

Regarded as one of the most crucial debates in of the 21st century have been revolving
around death penalty as to whether it should be stopped or not and whether is it ever justified
as for the most heinous crimes. There are many reasons why the death penalty should be
abolished some of which in future as follows:

In any given justice system the risk of executing innocent people always does exist.
Moreover the arbitrary approach towards that penalty can never be ruled out. This has been
duly noted by Justice Bhagwati in the landmark judgment of Bachan Singhv. State of Punjab
death penalty for murder under section 302 of Indian penal code read with section 354 (3) of
Cr.P.C is is arbitrary and unreasonable primarily because of of being cruel in human
disproportionate and excessive

Also it was totally e unnecessary and fail to serve any social purpose towards the
advancement and betterment of the society and constitutional values. It is to be noted that
back then justice Bhagwati's view was considered to be in minority and stated that there
existed no proper guidelines by the legislature for imposition of death penalty and that section
302 of IPC and section 354 (3) of Cr.P.C are violating the fundamental rights under Article
14 and 21 of the Constitution of India.

Although for some retribution Indian initiation is regarded as a means to an end of

punishment however it cannot have any legitimate place in an enlightened philosophy of
punishment. Even there exist no real Nexus having some rationality with any legitimate
penological goal or any rational in a logical purpose and is rather arbitrary and irrational in
approach making it violative of article 14 and article 21 of the Constitution of India.11

Capital Punishment or the death penalty is the institutional practice whereby the person is
deliberately executed due to actual or supposed misconduct and violation of settled norms
which demands the warrant execution. The range of conduct which resulted in punitive
executions were diverse ranging from political or religious beliefs or a status beyond one's
control or at times even without employing any significant due process and procedures. If
one takes a cursory glance at the practice of punitive execution, the practices is still continued
more informally by various terrorist organizations, urban gangs or mobs.

11
Para 65 of Bachan Singh case (Accessed on 19th August 2019;12:15am)

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It has been almost more than a millennia that capital punishments have existed in various
societies which is evident from the various ancient law codes and Plato's famous rendition of
Socrates's trial and execution by the democratic Athens in 399 B.C.E. In the present
philosophic attention and with emergence of an international human rights regime in the post-
world war scenario, a much new philosophic discussions on theories of punishment and death
penalty along with questions of arbitrariness, mistakes and discrimination in the institution of
capital punishments have emerged.

The question which remains central pillar of the philosophic discussions about capital
punishment is the one of moral justification, i.e., on what grounds is the state taking the life
of identified offenders and whether is it morally justifiable response to voluntarily criminal
act which the individual have engaged in, even for the crime which is serious in nature, such
as murder? With such questions in mind two broad approaches emerges: one of the
retributivism where by the past record of the offender shall be taken into account before
pronouncing a judgment and other being utilitarianism whereby the effects of such death
penalty shall result into preventing more crimes through means of deterrence

With the evolution of different societies there were various forms of punishments which were
well recognized and have continued to be the common forms of punishments inflicted for
almost most of the offences. Punishments such as death penalty, imprisonment for life,
banishment, mutilation branding, pillory, and flogging have remained in practice since time
memorable whereas fines, forfeiture and confiscation of property, imprisonment for life and
imprisonment are the result of rise of humanitarianism aspect in penal philosophy. In present
times most of the offences under the Indian Penal Code are awarded with imprisonment and
capital punishment being inflicted only in rarest of rare instances. It would not be wrong to
speak that imprisonment has gained different stature altogether in India.

On tracing the history of evolution of imprisonment as a form of punishment, one could

easily draw the dots not more than two hundred years back when the criminal were handled
by institutionalization which took place in the late 18th century. Gradually with time this
replacement of prisons came in the Indian setting as well by a less rigid reformative treatment
of offender on the basis of rationality and science. It was in the nineteenth century which
witnessed the English Law being introduced in the realms of Indian Territory as well. Lord
Macaulay laid down the foundation of Indian Penal Code by pursuing the House of

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Commons to codify for the Indian Laws. This code contained various definitions and
prescribed for the punishments. At the later stage Indian Parliament soon after attaining
independence from the British Raj enacted and amended various penal laws based on the
demands and necessity of the time.

In present times death penalty is only applied to cases where the crime is of rarest of rare
nature and that it cannot be done away without the penalty of death. The first instance can be
traced to records of Hammurabi in the 18th Century B.C.E. However with the evolution of
time and societies most of the western cultures have done away with the practice of capital
punishment regarding it as gross violations of human rights and its allied requirements. The
judiciary and legislature across the globe have possessed contrasting approach towards the
same. Under Indian laws it was the case of Bachan Singh which mentioned the circumstances
need to be of extraordinary in nature so as to define whether the death sentence is to be
awarded or not. It is to be noted that mere grievousness of the cause of murder in itself is not
to be regarded or considered as sufficient grounds to pass the punishment of death sentence.

Death penalty or the capital punishment may be regarded as the legal process through which
the person is put to death by the state as a result of punishment for a crime committed by him.
The term death sentence is primarily the judicial decree whereas the actual process of
terminating or killing the person is called execution. India despite the global trend of
abolition of capital punishment has yet no adopted the said position.

The Article 21 of the Constitution of India mentions for the protection of life and personal
liberty. It states that no person shall be deprived of his life or personal liberty except as
according to procedure established by law. It is through this article that constitutional validity
of the capital punishment has been brought in question at various instances. This shall be
covered in the next few sections of the paper.

Various provisions of the Indian Penal Code awards death penalty as a matter of punishment
for various offenses. Criminal Conspiracy (under section 120 B of the IPC), murder (under
section 302), dacoity with murder (Section 396) and others. Apart from this, there are
provisions for the death penalty in various legislations like the NDPS Act, anti-terrorism laws
etc.

Under the Constitution of India the provision has been provided for clemency for capital
punishment by the President whereby if the appeal to the Supreme Court fails, the accused

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has the option of submitting a mercy petition to the President of India and Governor of the
said state. The Ministry of Home Affairs provides for the detailed instructions for dealing
with the petitions for mercy from or on behalf of the convicts.

The very first case which dealt with the question of constitutional validity of capital
punishment was the case of Jagmohan Singh v. State of Uttar Pradesh12. In the said case the
counsel representing the appellant had put forth three arguments which invalidated the
Section 302 of the Indian Penal Code. The very first argument stated that the execution takes
away all the fundamental rights guaranteed under clauses (a) to (g) of the sub-clause (1) of
the Article 19 and thus the law relating to capital punishment was violating the basic
fundamental rights and was not in the interest of the masses in general.

Second argument advanced was that there was absence of any set standards or policy which
the judges was required to exercise leaving it to their discretion for imposing any form of
capital punishment in preference to imprisonment for life.

The third contention advanced was that the uncontrolled and unguided discretion in the
judges to impose the capital punishment was violative of article 14 of the Constitution. In the
said case there were two persons who were found guilty on similar facts however there were
being treated differently whereby one had to forfeiting his life and the other undergoing a
mere sentence of life imprisonment.

After thoroughly analyzing the arguments the constitutionality validity of the death penalty
was upheld by the five-judge bench and came up with the narration that it is constitutionally
permissible to deprive the life for being recognized as a permissible punishment by the
drafters of the Constitution.

Even the Law Commission Report after making an extensive study on the death penalty
relied upon the judgment pronounced in the case of Jagmohan 13 and submitted its 36th
Report in the year 1967 summed up its conclusions as follows:-

It is difficult to rule out the validity of the strength behind many of the
arguments for abolition nor does the Commission treat lightly the
argument based on the irrevocability of the sentence of death, the
need for a modern approach, the severity of capital punishment and
the strong feeling shown by certain sections of public opinion in
stressing deeper questions of human values.

12
1973 1 SCC 20 (Accessed on 2nd September 2019;12:15am)
13
Jagmohan Singh v. State of U.P , (1973 1 SCC 20) (Accessed on 2nd September 2019;12:30am)

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 Having regard, however, to the conditions in India, to the variety of
the social upbringing of its inhabitants, to the disparity in the level of
morality and education in the country, to the vastness of its area, to
diversity of its population and to the paramount need for maintaining
law and order in the country at the present juncture, India cannot
risk the experiment of abolition of capital punishment.14

In the year 1983 the Supreme Court through its landmark case of Mithu v. State of
Punjab15strucked down the IPC Section 303 which provided for mandatory death sentence for
the offenders. However it is interesting to know that India has voted against a UN General
Assembly resolution calling for prohibition on the death penalty in the Sixty Second General
Assembly Plenary 76th and 77th Meeting.

It was the case of Bachan Singh v. State of Punjab16 which again raise the quest of validity of
capital punishment. The doctrine of rarest of rare was the result of this particular case and
still happens to be one of the most landmark cases in this aspect. the constitutional bench of
five judges pronounced that:-

“A real and abiding concern for the dignity of human life postulates
resistance to taking a life through law instrumentality. That ought not
to be done except in rarest of rare cases where the alternative
opinion is unquestionably foreclosed.”

The another aspect which was challenged and questioned in this case was the constitutional
validity Section 354(3) on the grounds that it gives unguided discretion to the Court and
allows the death sentence to be arbitrarily awarded. The majority of the judges held that
neither Article 19 nor 21 is violated by capital punishment. The fact that our Constitution
makers were fully cognizant of the fact that death sentence may be given in certain extreme
crimes is proven by the existence of provisions for appeal (Article 134) and Pardoning power
of the President (Article 72).

14
Ibid (Accessed on 2nd September 2019;1:15am)
15
1983 SCR (2) 690 (Accessed on 2nd September 2019;1:18am)
16
Bachan Singh v. State of Punjab , AIR 1980 SC 898 (Accessed on 5th September 2019;4:15pm)

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 CHAPTER V: CONCLUSION, SUGGESTIONS AND CRITICISMS

From the above study one can easily comprehend that human society is the nexus of
cooperative endeavor secured through means of coercion, whereby the recognized authority
is compelled to punish the individual who does not adheres to the rules and regulation
prescribed for the greater good. It is equally important to practice the punishment for
maintaining the social cohesion and that can be done only through law and order. Justice can
be administered only by imposing what is proper punishment for the crime so committed.
However one must also realize the fact that social sanction is an efficient instrument only if it
is associated with irresistible force of the community. And punishment is nothing but a means
of social control. It is the restorative justice which seeks to heal & right the wrongs, focusing
on the needs of the harmed & those responsible for the harm. It encourages accountability,
healing & closure for all.

Sentences must be framed in a manner which meets the individual offender, and typically
include aspects of rehabilitation such as community service, compulsory therapy or
counseling. This theory favors the humanitarian sentiments of the age. The one aspect is that
the punishment is imposed for the welfare of the criminal himself. As per the retributive
theory the transformation of the criminal minds can be done in a manner that the inmates of
the peno-correctional institutions can lead the life of a normal citizen.

The main aim is to rehabilitate and confirm to the norms of the society; into the law-abiding
member. This theory condemns all kinds of corporal punishments. It looks at the seclusion of
the criminals from society as an attempt to reform them and to prevent the person from social
ostracism. However one may advocate that this theory may not work with the effectiveness.
And apart from all given kinds of punishment in IPC crime still exists in Indian Society.
People dare to commit crime. The Law Commission of India in number of times emphasized
the need to enhance the punishment to different offences in the Code. The important
recommendations of the ILC are mentioned below. This is desirable, in view of the greater
importance of the offence under Section 304A as assumed since the section was inserted due
to the wide use of fast moving mechanically propelled vehicles and the frequency in the

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commission of the offence, accompanied by callousness of the offender towards the victim;
often there are cases tried under this section which are very near to culpable homicide and
deserve a severe sentence. In the views expressed by various kinds of people, organization
and institution as to the quantum of punishment under the Code, there has been a strong
demand for increase in the punishment under this section. The suggestions vary from three
years to seven years. There is also a suggestion to increase the period to seven years if more
than one death has been caused. After taking into account of the proposal of Law
Commission to fix the maximum punishment for culpable homicide not amounting to murder
at ten years, these Commission recommend that the maximum punishment for causing death
by negligence may be half that period, namely five years." In any society act of deviance will
always exist. We cannot put it in a water tight container that all this kind of punishment will
be suffient to curb all kind of crimes. Hence we safely conclude that the kinds of punishment
which is given under IPC are not sufficient to curb all kinds of Crime.   India neither the
legislature nor the judiciary has issued structured sentencing guidelines.  Several
governmental committees have pointed to the need to adopt such guidelines in order to
minimize uncertainty in awarding sentences.  The higher courts, recognizing the absence of
such guidelines, have provided judicial guidance in the form of principles and factors that
courts must take into account while exercising discretion in sentencing The Indian Penal
Code prescribed offences and punishments for the same.  For many offences only the
maximum punishment is prescribed and for some offences the minimum may be prescribed.
The Judge has wide discretion in awarding the sentence within the statutory limits.  There is
now no guidance to the Judge in regard to selecting the most appropriate sentence given the
circumstances of the case.  Therefore each Judge exercises discretion accordingly to his own
judgment.  There is therefore no uniformity.  Some Judges are lenient and some Judges are
harsh. In 2008, the Supreme Court of India, in State of Punjab v. Prem Sagar & Ors., also
noted the absence of judiciary-driven guidelines in India’s criminal justice system, stating,
“in our judicial system, we have not been able to develop legal principles as regards
sentencing.  The superior courts except for making observations with regard to the purport
and object for which punishment is imposed upon an offender, had not issued any
guidelines.17”  The Court stated that the superior courts have come across a large number of
cases that “show anomalies as regards the policy of sentencing,”adding, “whereas the
quantum of punishment for commission of a similar type of offence varies from minimum to

17
State of Punjab v. Prem Sagar & Ors., (2008) 7 S.C.C. 550, para. 2 (Accessed on 5th September
2019;5:15pm)

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maximum, even where the same sentence is imposed, the principles applied are found to be
different.  Similar discrepancies have been noticed in regard to imposition of fines.  In 2013
the Supreme Court, in the case of Soman v. State of Kerala, also observed the absence of
structured guidelines:
Giving punishment to the wrongdoer is at the heart of the criminal justice delivery, but in our
country, it is the weakest part of the administration of criminal justice.  There are no
legislative or judicially laid down guidelines to assist the trial court in meting out the just
punishment to the accused facing trial before it after he is held guilty of the charges.
However, in describing India’s sentencing approach the Court has also asserted that “the
impossibility of laying down standards is at the very core of the Criminal law as administered
in India, which invests the Judges with a very wide discretion in the matter of fixing the
degree of punishment.”18
Sentencing procedure is established under the Code of Criminal Procedure, which provides
broad discretionary sentencing powers to judges.  In a 2007 paper on the need for sentencing
policy in India, author R. Niruphama asserted that, in the absence of an adequate sentencing
policy or guidelines, it comes down to the judges to decide which factors to take into account
and which to ignore.  Moreover, he considered that broad discretion opens the sentencing
process to abuse and allows personal prejudices of the judges to influence decisions. 19In the
Supreme Court’s judgment in Soman v. Kerala, the Court cited a number of principles that it
has taken into account “while exercising discretion in sentencing,” such as proportionality,
deterrence, and rehabilitation.20 As part of the proportionality analysis, mitigating and
aggravating factors should also be considered, the Court noted.
In State of M.P. v. Bablu Natt, the Supreme Court stated that “the principle governing
imposition of punishment would depend upon the facts and circumstances of each case.  An
offence which affects the morale of the society should be severely dealt with. 21”  Moreover,
in Alister Anthony Pareira v. State of Maharashtra, the Court held that
sentencing is an important task in the matters of crime.  One of the prime objectives of the
criminal law is imposition of an appropriate, adequate, just and proportionate sentence
commensurate with the nature and gravity of the crime and the manner in which the crime is
done.  There is no straitjacket formula for sentencing an accused on proof of crime.  The

18
Jagmohan Singh v. State of Uttar Pradesh, (1973) 2 S.C.R. 541, para. 26 (Accessed on 5th September
2019;6:45pm)
19
http://www.mcrg.ac.in/Spheres/Niruphama.doc. (Accessed on 5th September 2019;7:18pm)
20
Soman v. State of Kerala, (2013) 11 S.C.C. (Accessed on 5th September 2019;7:46pm)
21
State of M.P. v. Bablu Natt, (2009) 2 S.C.C. 272, para. 13 (Accessed on 10 th September 2019;10:45pm)

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courts have evolved certain principles: the twin objective of the sentencing policy is
deterrence and correction.  What sentence would meet the ends of justice depends on the facts
and circumstances of each case and the court must keep in mind the gravity of the crime,
motive for the crime, nature of the offence and all other attendant circumstances. 22From the
above discussion we can negate our first assumption that under IPC maximum punishment is
given but not the least. Its totally depend upon discretion of judge.

The article in its conclusion suggests the following:

1. There is an urgent need of updating (or provide updated figures of fine after a fixed
interval) with respect to IPC as it is still suffering from the colonial hangover and outdated
amounts of fine.

2. Certain sentencing guidelines with respect to the application of fines should be drafted
where criteria such as calculable loss, restoration amount, wealth of the offender, and
administrative costs can be made the criteria for ascertaining the amount of fine (Malley,
2009).

3. The provisions where fine is provided as an alternative to imprisonment should be

amended at the earliest so that there is no gross violation of the principles of criminal justice
where imprisonment becomes essential. Even if this may be justified for petty offenses, then
the amendment should take place for grave crimes such as culpable homicide and death by
negligence.  

 The implementation of the sections of criminal law to specific new types of crimes emerging
from the technological advances and compatible social changes give rise to new procedures
for the adjudication of offences of criminally oriented accused persons. This situation has
raised the question of reforming the system of punishment. 
  Though punishment is a kind of power against a section of people exercised by multiple
institutions apart from the courts viz. Prisons, probation officers, governor’s office ( in

22
Alister Anthony Pareira v. State of Maharashtra, (2012) 2 S.C.C. 648, para. 69 (Accessed on 5th September
2019;11:48pm)

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respect of remission) , The President of India’s office ( in respect of mercy petition) the
specific area envisaged in this proposal is the work belonging to the courts of law. The need
for reform of the law has arisen owing to new kinds of crimes about which the existing
system of punishment is found to be inadequate and the rising trend of criminality about
which the existing system of prevention is found to be ineffective.
  There is demand for introducing various new punishments for certain crimes with a view to
improve the system of criminal justice and make the criminal law strong enough to deal with
the criminality. This is where the need arises of making a thorough study keeping in view
what was the system of punishment previously and what it is at present.  

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 BIBLIOGRAPHY

Books:

1. Barnes and Teeters: New Horizons in Criminology (3rd Ed.)

2. SMA Qadri: Criminology and Penology; Eastern Book Company (6th Ed.)
3. Prof NV Paranjape: Criminology, Penology and Victimology; Central
Law Publications (6th Ed.)
4. K.I.Vibhute, PSA Pillai’s Criminal Law, 11th Edition, Lexis Nexis
Butterworths Wadhwa
5. Ratanlal and Dhirajlal, The Indian Penal Code,35th Edition, Lexis Nexis.
6. K.D.Guar, Indian Penal Code, Universal Law Publishing Co. Pvt. Ltd.

Refrences:

1. https://www.lawnotes.in/Kinds_of_Punishments
2. https://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199673599.001.0001/oxfordhb-
9780199673599-e-41

3. https://thebusinessprofessor.com/knowledge-base/types-of-punishment-for-criminal-
activity/
4. https://shodhganga.inflibnet.ac.in/bitstream/10603/127654/14/09_chapter%202.pdf
5. https://devgan.in/ipc/section/73/
6. http://www.shareyouressays.com/knowledge/solitary-confinement-in-india-explained-
sections-73-and-74-of-ipc/119778
7. https://www.bbc.com/news/world-asia-india-19410108
8. https://www.indiatoday.in/mail-today/story/death-penalty-abolition-study-1104083-
2017-12-10

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