NEW LAW COLLEGE

Name: Karishma Shah

Class: S.Y.LLB ‘D’

Roll No.: 349

Subject: Criminology and Correction Administration

PUNISHMENT OF OFFENDERS
 2
Table of contents

INTRODUCTION...............................................................................................................3

HISTORICAL DEVELOPMENT.......................................................................................4

OBJECT OF PUNISHMENT..............................................................................................5

THEORIES OF PUNISHMENT.........................................................................................5

PUNISHMENT UNDER INDIAN PENAL CODE............................................................6

CONCLUSION..................................................................................................................12
 3

INTRODUCTION
Criminology is a scientific study of the nonlegal aspects of crime and delinquency, including its causes,
correction, and prevention, from the viewpoints of such diverse disciplines as anthropology, biology,
psychology and psychiatry, economics, sociology, and statistics.

Viewed from a legal perspective, the term crime refers to individual criminal actions (e.g., a burglary) and
the societal response to those actions (e.g., a sentence of three years in prison). By comparison, the field of
criminology incorporates and examines broader knowledge about crime and criminals. For example,
criminologists have attempted to understand why some people are more or less likely to engage in criminal
or delinquent behaviour. Criminologists have also examined and attempted to explain differences in crime
rates and the criminal code between societies and changes in rates and laws over time.

Many criminologists consider themselves to be neutral public policy experts, gathering facts for various
governmental officials responsible for drawing policy conclusions. However, some criminologists—like
their counterparts in such fields as the atomic and nuclear sciences—maintain that scientists must shoulder
responsibility for the moral and political consequences of their research. Thus, some criminologists have
actively campaigned against capital punishment and have advocated in favour of various legal reforms.
Criminologists who oppose this activist role contend that the findings of criminological research must be
weighed along with political, social, religious, and moral arguments, a task best left to political bodies. Not
denying the right of criminologists to express their opinions as ordinary citizens and voters, this view
nonetheless maintains that a government by popular will is less dangerous than a government by experts.

In the last decades of the 20th century, criminology grew to encompass a number of specialized study
areas. One of these was criminalistics, or scientific crime detection, which involves such measures as
photography, toxicology, fingerprint study, and DNA evidence (see also DNA fingerprinting). It had
previously been excluded from criminology because of its focus on particular criminal actions rather than
on the broader knowledge about crime and criminals. Criminology further expanded its reach by devoting
significant attention to victimology, or the study of the victims of crime, the relationships between victims
and criminals, and the role of victims in the criminal events themselves. Criminal justice has also emerged
as a separate but closely related academic field, focusing on the structure and functioning of criminal
justice agencies—including the police, courts, corrections, and juvenile agencies—rather than on
explanations of crime.
 4
Historical Development

Criminology developed in the late 18th century, when various movements, imbued with humanitarianism,
questioned the cruelty, arbitrariness, and inefficiency of the criminal justice and prison systems. During
this period reformers such as Cesare Beccaria in Italy and Sir Samuel Romilly, John Howard, and Jeremy
Bentham in England, all representing the so-called classical school of criminology, sought penological and
legal reform rather than criminological knowledge. Their principal aims were to mitigate legal penalties, to
compel judges to observe the principle of nulla poena sine lege (Latin: “due process of law”), to reduce the
application of capital punishment, and to humanize penal institutions. They were moderately successful,
but, in their desire to make criminal justice more “just,” they tried to construct rather abstract and artificial
equations between crimes and penalties, ignoring the personal characteristics and needs of the individual
criminal defendant. Moreover, the object of punishment was primarily retribution and secondarily
deterrence, with reformation lagging far behind.

In the early 19th century the first annual national crime statistics were published in France. Adolphe
Quetelet (1796–1874), a Belgian mathematician, statistician, and sociologist who was among the first to
analyze these statistics, found considerable regularity in them (e.g., in the number of people accused of
crimes each year, the number convicted, the ratio of men to women, and the distribution of offenders by
age). From these patterns he concluded that “there must be an order to those things which…are reproduced
with astonishing constancy, and always in the same way.” Later, Quetelet argued that criminal behaviour
was the result of society’s structure, maintaining that society “prepares the crime, and the guilty are only
the instruments by which it is executed.”

Whereas Quetelet focused on the characteristics of societies and attempted to explain their resulting crime
rates, the Italian medical doctor Cesare Lombroso (1836–1909) studied individual criminals in order to
determine why they committed crimes. Some of his investigations led him to conclude that people with
certain cranial, skeletal, and neurological malformations were “born criminal” because they were biological
throwbacks to an earlier evolutionary stage. Highly controversial at the time he presented it, his theory was
ultimately rejected by social scientists. Lombroso also contended that there were multiple causes of crime
and that most offenders were not born criminal but instead were shaped by their environment. The research
of both Quetelet and Lombroso emphasized the search for the causes of crime—a focus that criminology
has retained
 5
Punishments Under Law Of Crime
The practice of awarding punishments is a very important part of the criminal justice system as it a form of
society’s manifestation of the admonition of the crime by a collective conscience as specified by
Durkheim. The object of the punishment in Manu’s word is
“punishment governs all mankind; punishment alone preserves them; punishment awakes while their
guards are asleep; the wise consider the punishment (danda) as the perfection of justice.

The entire goal of punishment can be justified by a sociological perspective and it attains legitimacy by a
legal framework.
According to H.L.A Hart, there are some important features of a punishment and those are – “It should
inflict some amount of pain and unpleasant consequences to the offender, it should relate to the offense that
the offender has committed, it should be a response for breaking the social norms, and it should be
administered by an authority under the legal framework.

Object Of The Punishment

The object of punishment is the prevention of crime, and every punishment is intended to have a double
effect, viz., to prevent the person who has committed a crime from repeating the act or omission and to
prevent other members of the society from committing similar crimes.

Theories Of Punishment
1. Retributive theory: This theory is based on the principle of an eye for an eye and a tooth for a
tooth. It is based on primitive nature of vengeance against the wrong doer. The Supreme Court has
recently laid down that an eye for an eye approach is neither proper nor desirable. Mandate of
Section 354 (3) Cr.P.C. does not approve of it.

2. Deterrent theory: According to this theory the punishment is awarded to deter people from
committing the emotion of fear plays a vital role in man's life.

3. Preventive theory: This has also been called Theory of disablement as it aims at preventing the
crime by disabling the criminal. In order to prevent the repetition of the crime the offenders are
punished with death, imprisonment for life or transportation of life.

4. Reformative theory: The object of punishment according to this theory should be to reform
criminals. The crime is a mental disease which is caused by different anti-social elements.
Therefore, there should be mental cure of criminals instead of awarding them severe punishment as
mentioned in Case Law: (Ediga Annama v. State of Andhra Pradesh).
 6
Punishment Under The Indian Penal Code

The scheme of the punishment is laid down from Sections 53 to 75 of the Indian Penal Code out of which
five sections (Sections 56, 58, 59, 61 and 62) have already been repealed. Different types of punishments,
rules for their assessment and enhancement in subsequent offences, from the subject- matter of this topic.
According to Section 53 of the Code the offenders are liable to the following punishments:

a) Death.
b) Imprisonment for life.
c) Imprisonment which may be rigorous, simple or solitary;
d) Forfeiture of property.
e) Fine.

The Code as originally enacted contained one more type of punishment known as Transportation for life.
This punishment has now been substituted by imprisonment for life (Section 53 - A)

The aforementioned punishment can also be awarded in conjunction in order to achieve the intended goal
and deter the wrong committed. General provisions related to punishment for different offences are
enumerated in Sections 53 to 75 of IPC. Section 63 to 70 incorporate the provisions related to the
imposition of fines and any alternative sentence, in case fines are not paid.

Section 73 and 74 lay down the punishment of ‘solitary confinement’ and spells out the limitation with
regard to its imposition. Section 75 spells out the provision related to certain offences when committed by
repeat offenders.
 7

a) Death / Capital Imprisonment

It is the punishment wherein the accused is executed to death after he has been found to be guilty of a
criminal offence in accordance to the appropriate legal process. The imposition of the death penalty is a
debatable topic and is agitated in a lot of nation currently. However, U.K has retained it in its legal system
to redress the following cases:

 High treason
 Murder during or of – shooting or causing explosion, a public servant on duty, theft, while resisting
lawful arrest, party to murder.
 Setting ablaze her majesty’s stores, ships
 Committing piracy with violence

In contemporary India, death sentences are only reserved for the rarest of rare case. However, there is no
guideline or structure to define these “rarest of rare” cases.

Further, the 35th Law Commission report said, “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 the 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.”

The Human Rights Commission of the United Nations adopted a resolution demanding a complete
eradication of the death sentence as a punishment. However, the Apex court of India has held a death
sentence constitutionally valid. Yet, the debate regarding the unconstitutionality of death penalty still
continues and finally, the Apex court in the case, Bacchan Singh v State of Punjab, observed that death
sentences can only be awarded in the rarest of rare cases. Complying with this ruling the Parliament has
added Section 354 (3) which read as:
“When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for
life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded,
and, in the case of sentence of death, the special reasons for such sentence.”

Apex court in the case, Macchi Singh v. State of Punjab, expanded the finding laid down in Bacchan
Singh. Hereunder are certain observations made by the court:
 Death sentence can only be awarded in case of gravest of culpability
 8
 Circumstances of the offender must be taken into consideration before pronouncing a death
sentence
 Death sentence can only be imposed when awarding life imprisonment does seem to be adequate
for the crime committed by the offender.
 Before ruling in favour of the death penalty, both, mitigating and aggravating factors must be
considered and doing so according to full weightage to the mitigating factors.

The following are the cases where death sentence may be awarded at the discretion of the Court:
a) Waging war against the Government (Section 121).
b) Abetment of mutiny.
c) Fabricating or giving false evidence as a result of which an innocent person suffers death.
d) Murder.
e) To abet an insane, minor or intoxicated to commit suicide (Section 305).
f) Dacoity with murder.
 9

b) Imprisonment

This is a punishment wherein the accused is confined in a penitentiary. Hawk said that “It seems clear that
any place, whatsoever, wherein a person under a lawful arrest for a supposed crime is restrained of his
liberty, whether stocks at the street, or in in the house of a constable or private person or the prison of the
ordinary is properly a prison within the statute; for imprisonment is nothing else but a restraint of liberty.

Imprisonment was barely known during the primitive age and became a major part of the legal system only
in the 19th century and 20th century. The framers of the India Penal Code even envisaged two kinds of
imprisonments i.e-
 Rigorous
 Simple

Lord Cornwallis had envisioned the removal of mutilation as a punishment which was finally abolished by
the Govt in the year 1791. Thereafter, convicts who were sentenced to lose two limbs were sentenced for
14 years in prison and concurrently those who had to lose one were sentenced for 7 years in prison.

Section 54, IPC lays down that if the Government deems it appropriate then it can, without the consent of
the offender commute the punishment earlier awarded to the offender. Further, it must be noted that the
power provided to the President under Article 72(3) or of the Governor as provided under Article 161 of
the Indian Constitution does not curtail the authority of the concerned government (State or Central)
provided under Section 54. Malimath Committee has recommended that an alternative punishment be
added, namely, “imprisonment for life without commutation or remission”, wherein life imprisonment has
been awarded.

The maximum term of imprisonment that can be awarded should not exceed life time of the accused and be
not less than 24 hours.
Solitary confinement according to Section 73 should be awarded in the following manner:
If term of Solitary
imprisonment is confinement should
not exceed
a) 6 months 1 month
b) 1 year 2 months
c) More than 1 year 3 months
 10

c) Levying of Penalty

The imposition of fine or penalty has been prevalent since the inception of tribal system in the civilisation.
In the case of Ashok Kumar vs. State,[15] the Apex court had opined that “payment of fine brings home
the sense of responsibility in a surer fashion than even short terms of imprisonment in some case.” The
Indian Penal Code and several other Indian statutes have affixed levying of fine as an alternative as well to
the main punishment.

The Law Commission has nonetheless provided a caveat to the judges to impose a proportionate penalty
since it affects the dependants of the accused along with him. Therefore the Apex court in the current times
has to take cognisance of the pecuniary status of the offender with respect to the brutality and character of
the offence committed by him. Additionally, it must be noted that forfeiture of money is allied to
sentencing a person by fining him.

The Indian criminal system has become redundant when it comes to the pronouncement of punishments
due to the absence of a uniform sentencing guideline. A glaring example is a case, Arun Garg v State of
Punjab, wherein the offender who was found guilty for committing ‘dowry death’ under Section 304B was
imposed with a fine of Rs. 2000 and imprisonment.

Later, as a result of an appeal, the High court increased the fine to Rs. 2 Lakhs and interestingly, the Apex
court, set aside the fine in entirety.
 11

d) Forfeiture of Property

Forfeiture of property has been provided by the Indian Penal Code and it was even prevalent in ancient
India. However, the Indian Penal Code (Amendment) Act, 1921 repealed Section 61 and 62 which imposed
the punishment awarding for forfeiture of property. Yet, there exist certain provisions in the current IPC
which provide for forfeiture of property as a punishment:
 Section 126 – Committing depradation on territories of power at peace with the Govt of India
 Section 127 – Receiving property taken by war or depredation mentioned in Sec.125 and 126 of
I.P.C.
 Section 169 – Public servant unlawfully buying

Contemporary Penal System

Currently, the Indian criminal system has witnessed a change in their outlook with respect to the penal
policy and this is evident in certain statutory provisions, those are – the Juvenile Justice (Care & Protection
of Children) Act, 2000, Children’s Acts, the Abolition of Whipping Act, the Probation of Offenders Act,
1958, Section 27 of the Criminal Procedure Code, 1973 and the Repeal of Criminal Tribes Act. The reform
is inevitable of the following two facts:

 The system of punishment cannot be entirely based on the nature of the wrong committed but must
be variable depending on the character of the offender. Two completely different kinds of offenders
could have committed the same kind of crime and hence, punishment must be conditioned to suit
different categories of offenders.

 The idea behind punishment must not only be retribution but also to prevent the offense being
committed in times to come. Therefore, reformation in punishments is advisable when the earlier
punishment could not deter the occurrence of the same offence.

The Indian criminal system barely attracts any attention towards the victim and this apathy of the criminal
justice system has been emphasised by Rattan Singh v State of Punjab,[18] by Krishna Iyer. J as follows:
“It is a weakness of our jurisprudence that victims of crime and the distress of the dependents of the victim
do not attract the attention of law. In fact, the victim reparation is still the vanishing point of our criminal
law. This is the deficiency in the system, which must be rectified by the legislature.”
 12

Conclusion

Time and again various committees like Malimath Committee, Madhav Menon Committee and several
case laws have recommended the inclusion of a comprehensive and uniform guideline for the
pronouncement of punishment i.e. a sentencing policy. This is to ensure that the judiciary will not exercise
unbridled discretion of authority while awarding punishment.

In the absence of such a structured set of guidelines, the ramifications of punishments become highly
arbitrary and harsh. This may lead to undue uncertainty and the indiscriminate imposition of fine and
imprisonment. Further, an amendment must be tendered to any provision where fine is awarded as an
alternative to imprisonment to avoid gross injustice to the victim where the imposition of imprisonment is
appropriate.