Criminology - Semester IV

LL.B. IV Term Paper: LB - 4036 - Criminology

Topic 1 : Theoretical and Historical Perspectives of Criminology

(i) Perspective of Crime and Criminal –

Salmond defined law as rule of action regulating the conduct of individuals in society.

Emile Durkheim is his treatise ‘Crime as a normal phenomenon’ says, “a society composed of persons with angelic qualities would not be free from violations of the norms of that society.

Crime – Dynamic concept

Fedrick Pollock & Maitland observed that English society prior to 10th century confused crimes with torts because the bonds of the family was far stronger than that of the community, the injured party & his kindred could avenge the wrong by private vengeance & self redress. Recourse to legal remedy merely an optional alternative to self-redress.

Payment of ‘bot’ washed away guilt of wrongdoer.
Botless offences entailed additional fines (wite) payable to King.

Dharmashastras – ordeal – as divine methods with various names Samayakriya, Sapatha, Divya or Pariksa. Ordeals were taken as a divine means of proof about guilt or innocence of the accused. Two important aspects of ordeals were (i) indicated the divine aspect of trial (ii) the basic idea underlying this method of trial was the need of divine intervention at a crucial moment in dispensing justice. Thus ordeal was an antique institution, a deep rooted custom, practiced by the people in ancient India. Yajnavalkya mentions 5 kinds of ordeals – Balance, Fire, Water, Poison and Kosa.

Crime defined
Kenny – “Crimes are wrongs whose sanction is punitive, and is in no way remissible by any private person, but is remissible by the Crown alone, if remissible at all”. This definition has received criticism on the ground that there are a number of compoundable offences that are remissible by the consent of the parties.

Roscoe Pound – “A final definition of crime is impossible, because the law is a living & changing thing which may at one time be based on sovereign will and at another time on juristic science, which may at one time be uniform, and at another time give much room for judicial discretion, which may at one time be more specific in its prescription & at another time much more general.”

Cross & Jones define crime as a legal wrong the remedy for which is punishment of the offender at the instance of the State.

John Gillin defines crime as an act that has been shown to be actually harmful to the society or that is believed to be socially harmful by a group of people that has power to enforce its belief and that places such act upon the ban of positive penalties. Thus he considers crime as an offence against the law of the land.

Blackstone – A crime is an act committed or omitted, in violation of a public law either forbidding or commanding it. (realized – above defn limits the scope – does not include political wrongs against the state – Modified his definition – “A crime is a violation of the ‘public rights & duties’ due to the whole community.”

Italian criminologist - Raffeale Garafalo – rejecting juridical concept of crime preferred sociological definition – “Crime is an act which offends the basic sentiments of ‘pity’ & ‘probity’.
Sutherland characterises crime as a symptom of social disorganization.

Donald Taft – Crime is a social injury & an expression of subjective opinion varying in time & place.

Halsbury – crime as an unlawful act which is an offence against the public & the perpetrator of that act is liable to legal punishment.

Crime without a victim – drunkenness, vagrancy, etc

Classification of crimes –
Legal – theft, dacoity, hurt, rape, murder, rioting etc
Political – Violation of election laws, with political motive
Economic – tax evasion, smuggling, gambling, Foreign exchange violations,
Social – Child Marriage Restraint, Dowry, SC & ST prevention of atrocities act
Misc – Prevention of food adulteration act, 1961 as amended in 1983.

Classification - IPC – Offences (i) against person (ii) against Property (iii) relating to documents (iv) Affecting mental order (v) against public tranquillity (vi) Against State (vii) Relating to public servants

Characteristics of Crime
(i) External consequences
(ii) Actus reus
(iii) Mens Rea
(iv) Prohibited act
(v) Punishment

Sin, Wrong and Crime – Sin – religion , Crime – Statutes, Sin violation of breach & morality, Crime breach of law. Sinner believed to be punished by God, Criminal punished by the law, May not be any direct injury in case of a sin, crime necessarily involves some of direct injury. Remedy for sin is penance, for crime its sentence by the court.

Crime – latin word krimos which means to accuse.

Garafalo – crime is an immoral & harmful act that is regarded as criminal by public opinion because it is an injury to so much of the moral sense as is possessed by a community.

Authors of Indian penal code – Many things which are not punishable are morally worse than many things which are punishable. Rich man refuses mouthful of rice worse than starving wretch who snatches & devours rice. We punish the latter for theft & we do not punish the former for hard heartedness.

Changing concept of crime in varying social formations –

Crime viewed through consensus or conflict perspectives -

(ii) Relationship between Criminal Policy, Criminal Law and Criminology

Prof WA Bonger – following subheads for theoretical criminology
(i) Criminal Anthropology – Cesare Lombroso – physical characteristic – no longer supported
(ii) Criminal Sociology – Sutherland’s theory of differential association – criminal behaviour as a process of learning through association with other criminals – theory does not adequately take into account the personality traits or psychological variables in criminal behaviour.
(iii) Criminal Psychology – co relate criminality to emotional aspect of human behaviour – French psychologist Alfred Binet & Prof Jerman of USA – main pro-pounders of this view. Dr Arnold & Dr E.A. Hooton carried further researches on this aspect of criminal behaviour.
(iv) Criminal Pyscho-neuro-pathology – Attributes criminality to functional deviations & mental conflicts in the personality of the offender. Factors such as inferiority complex, frustration, depression & anxiety etc. may lead a person to commit crimes. Dr Gluek & Freud  main exponents of this view.
(v) Penology – Concerns itself with various aspects of punishment & penal policies.

Applied criminology – includes the study of criminal hygiene & criminal policy which is founded on derivative conclusions.

Criminalistics – connotes police techniques of crime investigation & detection.

Judicial approach to criminology – Two cardinal principles of criminal liability
(i) Nullum crimen sine lege ("No crime, no punishment without a previous penal law)
(ii) Nulla poena sine lege. (one cannot be punished for doing something that is not prohibited by law.)

Criminal Science
1. Criminology
a. Criminal Biology – causes of criminality
b. Criminal sociology – effect of surroundings & environment
2. Penology – study of custody, treatment, prevention & control of crime
3. Criminal Law – implement policies envisaged by Criminology & Penology

Readings:
1. Donald R. Taft and Ralph W. England, “Crime and Criminology", Criminology 3-17 (1964) 1

LEGAL Definitions
Crime – act punishable by law. Criminal – committed such legally forbidden act. Other criteria
(i) Competent age – English common law (seven: not capable of sense of guilt) – American courts – age fixed by statutes or constitutionally – considerably above common law limit – very young children – juvenile courts – punished as well as treated constructively under the faction that the courts acts in loco parentis(as a parent would act) & in the best interest of a child.
(ii) Crime – voluntary, w/o compulsion. Compulsion defined by courts – evident & immediately related to a particular criminal act. Impulsion towards life of crime  influences of parents, associates or conditions – indirect influences of the past however compelling – not recognized as compulsion.
(iii) Especially serious crimes – must be shown to have criminal intent – Intent tested by knowledge of right & wrong – of nature and consequences of his behaviour – motive – reason for crime – sample crimes – example running a stop light, question of intent will not be raised.
(iv) Degree of intent - heavy penalty – assault must be shown to have been perpetrated “maliciously” or “wantonly” – personal injury  negligence.
(v) Act – must be classed legally as an injury to the state & not merely a private injury or tort – as society is becoming more & more progressive – large number of acts – considered torts = crime now – example – white collar crimes

SOCIAL Viewpoint
Two aspects of social view point
(i) Injury acts – defined by group mores – either derived from past or from the more current opinions of the people who keep the codes & deny it to those who do not – Criminal law influenced by group definitions Example – fornication traditionally immoral act but not punishable as criminal behaviour
(ii) In traditional criminal laws – criminal is one who in the past committed generally with evil intentions, an act made punishable by law.  Societal viewpoint more concerned to protect society against future acts than to requite the criminal for past acts. Concern – not past wickedness but future dangerousness – does not neglect past behaviour as past behaviour may suggest future behaviour – Punishment not to take vengeance but to reform and assure not repetition of the crime – and deter others from committing crimes.

Difficulties, needs & dangers involved in above trend (increasing concern of future behaviour)
(i) Increased knowledge of crime
(ii) Criminology not opposed to crime per se. Changes required may be known but can be too costly. Example Job/marriage – difficult to find someone to take the risk.
(iii) Too great control over future is inconsistent with & dangerous to democracy.
(iv) Much of general public and many influential groups haven’t accepted the validity of concern for the future & desirability of constructive aid to criminals.

NATURE & SCOPE of Criminology
Criminology – both general & special sense –

Broadest sense - study (not complete science yet) which includes all the subject matter necessary to the understanding & prevention of crime & to the development of law, together with the punishment or treatment of delinquents & criminals.

Narrow sense – study which attempts to explain crime. If the latter narrow definition is adopted then one must recognize related fields including penology concerned with treatment of adult criminals, crime detection, the treatment of juvenile delinquents & the prevention of crime.

Science – phenomena - homogeneous – crimes – diverse – dilemma – various solutions – concentrating attention on various kinds of crime – Cressey believes that he has arrived at sociologically meaningful subdivisions by isolating types of embezzlement. Cressey’s plan – theories of specific crimes rather than any general theory of crime.

E H Sutherland – tried to discover processes or relationships which will explain all crime, in spite of its great variety.

IMPORTANCE OF CRIMINOLOGY
Cost of crime in US  $18 Billion.
Many types of criminal, no criminal type.
Two extreme philosophies explaining human behaviour
(i) Human behaviour is essentially unpredictable because a man is free to choose the course he will pursue. This view conceives of the offender as choosing to be social or antisocial, criminal or noncriminal.
(ii) Opposite philosophies equally concerned over the danger of crime. Implies equal willingness to punish when and only when punishment seems the only way to protect society. It conceives the crime and the criminal as products.

2. David Garland, “Of Crimes and Criminals: The Development of Criminology in Britain”, in Mike Maguire, Rod Morgan, Robert Reiner (ed.), The Oxford Handbook of Criminology

Emergence of British discipline into four parts
(i) Traditional representation of crime – discourse about crime & criminals – or sin, villainy, roguery, deviance – as old as the human civilization -  did not disappear w/ coming of modern scientific age
Literature of 17th & 18th century indicating causes of crime are very much applicable today – Faller’s research suggests what was lacking in 17th & 18th Century was not secular or materialist explanation of the roots of the crime, which were present alongside the spiritual explanations of the roots of the crime.
What was lacking was a developed sense of differential aetiology. Crime was seen as an omnipresent temptation to which all humankind was vulnerable –but when it became a question of why some succumbed & others resisted, the explanation trailed off into the unknowable, resorting to fate, God’s will, providence.

(ii) Scientific analysis of crime in 18th & 19th Centuries –
Radzinowic monumental history(1948) begins in 1750 as does his historical essay on Ideology & Crime(1966) – Mannheim’s earliest ‘pioneer’ is Beccaria, whose ‘Of Crimes & Punishments’ first appeared in 1764. The New Criminology (Taylor, Wanton & Young 1973)  the radically & immensely influential textbook of the 1970s, begins its account with Beccaria & the classical school of criminology’. Writing of Beccaria & Bentham did not classify as criminology but yet important ingredients.

Literature Bentham, Beccaria & Howard. – Enlightenment writers wrote secular, materialist analyses, emphasizing the importance of reason & experience & denigrating theological forms of reasoning.

Papers developed by Rawson W Rawson, Joseph Fletcher & John Glyde to the Statistical society of London used judicial statistics & census data to chart the distribution & demography of crime  & to match up crime rates with other social indices. (Similar A.M. Guery & Adolph Quetlet in France & Belgium)
Henry Mayhew – Ethnographic survey methods, life history, & statistical data.

1760s & 1770s – Henry Dagge & Mannasseh Dawes – argued laws notion of a free willed offender were often enough fictions in the face of real social & psychological circumstances which limited choice arid human conduct and they drew upon the materialist psychologies of the time to explain how it was that casual processes could be acknowledged without entirely destroying the belief in man’s free will.  Both Thomas Zeman(1981) & Piers Beirne(1993) have recently shown that Cesare Beccaria’s account of human conduct is shaped not by metaphysical assumptions about the freedom of the will, instead by John Locke’s empiricist psychology & the new science of man developed by the thinkers of the Scottish Enlightenment.

Re-conceptualization of human character & conduct – field of medicine – psychological medicine – art of physiognomy – practitioners judge character & disposition  physical features (external) – known since 17th century – essays of J.C. Lavater(1792)  purported to give a scientific foundation to this useful skill. Craniometry & phrenology of F.J. Gal & J.C. Spurzheim made similar claims in the early 19th century. By 1830 physiognomy & phrenology had lost much of their scientific credibility & had become the obsession of a few enthusiastic publicists, but the quest to uncover the links between physical constitution & physiological character was continued in a different & more important line of research: the new science of psychiatry.

Emergence of n/w of pvt asylums – 18th century – new quasi medical specialism 1st called alienism – subsequently known as psychological medicine (psychiatry)

Lombroso’s L’Uomo Delinquente(1876) –

Colquhoun - Crime & Police.


(iii) Emergence of a Positive Specialist Science of the Criminal –
the Lombrosian Project in the 19th Century

From criminal anthropology to the science of criminology

Lombrosoan Project -  Central idea of Lombroso's work came to him as he autopsied the body of a notorious Italian criminal named Giuseppe Villela. As he contemplated Villela's skull, he noted that certain characteristics of it (specifically, a depression on the occiput that he named the median occipital fossa) reminded him of the skulls of "inferior races" and "the lower types of apes, rodents, and birds".

The term Lombroso used to describe the appearance of organisms resembling ancestral (prehuman) forms of life is atavism. Born criminals were thus viewed by Lombroso in his earliest writings as a form of human sub-species (in his later writings he came to view them less as evolutionary throwbacks and more in terms of arrested development and degeneracy). Lombroso believed that atavism could be identified by a number of measurable physical stigmata, which included protruding jaw, drooping eyes, large ears, twisted and flattish nose, long arms relative to the lower limbs, sloping shoulders, and a coccyx that resembled "the stump of a tail." The concept of atavism was glaringly wrong, but like so many others of his time, Lombroso sought to understand behavioral phenomena with reference to the principles of evolution as they were understood at the time. If humankind was just at one end of the continuum of animal life, it made sense to many people that criminals — who acted "beastly" and who lacked reasoned conscience — were biologically inferior beings. Thus understood, atavism became a popular concept, used for instance by the novelist Emile Zola in the Rougon-Macquart.

In addition to the "atavistic born criminal", Lombroso identified two other types: the "insane criminal", and the "criminaloid". Although insane criminals bore some stigmata, they were not "born criminals"; rather they become criminal as a result "of an alteration of the brain, which completely upsets their moral nature." Among the ranks of "insane criminals" were alcoholics, kleptomaniacs, nymphomaniacs, and child molesters. "Criminaloids" had none of the physical peculiarities of the "born" or "insane criminal", became involved in crime later in life, and tended to commit less serious crimes. "Criminaloids" were further categorized as "habitual criminals", who become so by contact with other criminals, the abuse of alcohol, or other "distressing circumstances." This category included "juridical criminals", who fall afoul of the law by accident; and the "criminal by passion", hot-headed and impulsive persons who commit violent acts when provoked.

(iv) How these two projects converged in a way and to an extent which facilitated the formation of a criminological  discipline in Britain in the middle years of the 20th century.


3. Nicola Lacey, “Criminology, Criminal Law and Criminalization”, in Mike Maguire, Rod Morgan, Robert Reiner (ed.), The Oxford Handbook of Criminology, (2nd ed., 1997)

Relationship between criminology, criminal law & criminal justice studies
What can criminology bring to the study of criminal law?
What can critical criminal law bring to the study of criminology & criminal justice?
From critical criminal law to criminalization


Topic 2 : Crime causation generally and in the context of specific offenses such as White Collar Crimes, Crime against Women and Children, Terrorism etc.
(i) Prominent criminological thought currents –

Classicalism
Classical School in criminology is usually a reference to the 18th-century work during the Enlightenment by the utilitarian and social contract philosophers Jeremy Bentham and Cesare Beccaria. Their interests lay in the system of criminal justice and penology and, indirectly through the proposition that "man is a calculating animal", in the causes of criminal behaviour. The Classical school of thought was premised on the idea that people have free will in making decisions, and that punishment can be a deterrent for crime, so long as the punishment is proportional, fits the crime, and is carried out promptly

The social contract

John Locke considered the mechanism that had allowed monarchies to become the primary form of government. He concluded that monarchs had asserted the right to rule and enforced it either through an exercise in raw power, or through a form of contract, e.g. the feudal system had depended on the grants of estates in land as a return for services provided to the sovereign. Locke proposed that all citizens are equal, and that there is an unwritten but voluntary contract between the state and its citizens, giving power to those in government and defining a framework of mutual rights and duties. In Leviathan, Thomas Hobbes wrote, "the right of all sovereigns is derived from the consent of every one of those who are to be governed." This is a shift from authoritarianism to an early model of European and North American democracy where police powers and the system of punishment are means to a more just end.

Beccaria
In 1764, he published Dei Delitti e Delle Pene ("On Crimes and Punishments") arguing for the need to reform the criminal justice system by referring not to the harm caused to the victim, but to the harm caused to society. In this, he posited that the greatest deterrent was the certainty of detection: the more swift and certain the punishment, the more effective it would be. It would also allow a less serious punishment to be effective if shame and an acknowledgement of wrongdoing was a guaranteed response to society's judgment. Thus, the prevention of crime was achieved through a proportional system that was clear and simple to understand, and if the entire nation united in their own defense. His approach influenced the codification movement which set sentencing tariffs to ensure equality of treatment among offenders. Later, it was acknowledged that not all offenders are alike and greater sentencing discretion was allowed to judges. Thus, punishment works at two levels. Because it punishes individuals, it operates as a specific deterrence to those convicted not to reoffend. But the publicity surrounding the trial and the judgment of society represented by the decision of a jury of peers, offers a general example to the public of the consequences of committing a crime. If they are afraid of similarly swift justice, they will not offend.

Bentham
In this context, the most relevant idea was known as the "utilitarian principle", i.e. that whatever is done should aim to give the greatest happiness to the largest possible number of people in society. Bentham argued that there had been "punishment creep", i.e. that the severity of punishments had slowly increased so that the death penalty was then imposed for more than two hundred offences in England. For example, if rape and homicide were both punished by death, then a rapist would be more likely to kill the victim (as a witness) to reduce the risk of arrest.
Bentham posited that man is a calculating animal who will weigh potential gains against the pain likely to be imposed. If the pain outweighs the gains, he will be deterred and this produces maximal social utility. Therefore, in a rational system, the punishment system must be graduated so that the punishment more closely matches the crime. Punishment is not retribution or revenge because that is morally deficient: the hangman is paying the murder the compliment of imitation.
But the concept is problematic because it depends on two critical assumptions:
if deterrence is going to work, the potential offender must always act rationally whereas much crime is a spontaneous reaction to a situation or opportunity; and
if the system graduates a scale of punishment according to the seriousness of the offence, it is assuming that the more serious the harm likely to be caused, the more the criminal has to gain.

Spiritual explanation of crime.
Spiritualistic understandings of crime stem from an understanding of life in general, that finds most things in life are destiny and cannot be controlled, we are born either male or female, good or bad and all our actions are decided by a higher being. People have held such beliefs for all of recorded history, “primitive people regarded natural disasters such as famines, floods and plagues as punishments for wrongs they had done to the spiritual powers”.[2] These spiritual powers gained strength during the Middle Ages as they bonded with the feudal powers to create the criminal justice systems. Under a spiritualistic criminal justice system, crime was a private affair that was conducted between the offender and the victim’s family. However this method proved to be too revengeful, as the state took control of punishment. Spiritual explanations provided an understanding of crime when there was no other way of explaining crime. However, the problem with this understanding is it cannot be proven true, and so it was never accepted.

The idea of man as a calculating animal requires the view of crime as a product of a free choice by offenders. The question for policy makers is therefore how to use the institutions of the state to influence citizens to choose not to offend. This theory emerged at the time of the Enlightenment and it contended that it should focus on rationality. But, because it lacks sophistication, it was operationalised in a mechanical way, assuming that there is a mathematics of deterrence, i.e. a proportional calculation undertaken first by policy makers and then by potential offenders. This School believed that there are constants of value in pain and gain that can swing a decision to offend or not to offend. But not everyone is the same nor has the same view of what constitutes a price worth paying. It also had a certain utopianism in assuming that the policing system could rapidly grow and deliver a better service of investigation and detection. If certainty of punishment is to be achieved, there must be a major investment in policing.
As other Schools of thought developed, Classicism slowly grew less popular. But it has seen revival through the Neo-Classical School and the theories of Right Realism such as the Rational Choice Theory.
(Source: Wikipedia)
Positivism

In criminology, the Positivist School has attempted to find scientific objectivity for the measurement and quantification of criminal behaviour. As the scientific method became the major paradigm in the search for all knowledge, the Classical School's social philosophy was replaced by the quest for scientific laws that would be discovered by experts. It is divided into Biological, Psychological and Social.

Biological positivism

If Charles Darwin's Theory of evolution was scientific as applied to animals, the same approach should be applied to "man" as an "animal".

Physical characteristics
Historically, medicine became interested in the problem of crime, producing studies of physiognomy (see Johann Kaspar Lavater and Franz Joseph Gall) and the science of phrenology which linked attributes of the mind to the shape of the brain as reveal through the skull. These theories were popular because society and any failures of its government were not the causes of crime. The problem lay in the propensities of individual offenders who were biologically distinguishable from law-abiding citizens. This theme was amplified by the Italian School and through the writings of Cesare Lombroso (see L'Uomo Delinquente, The Criminal Man and Anthropological criminology) which identified physical characteristics associated with degeneracy demonstrating that criminals were atavistic throwbacks to an earlier evolutionary form. Charles Goring (1913) failed to corroborate the characteristics but did find criminals shorter, lighter and less intelligent, i.e. he found criminality to be "normal" rather than "pathological" (cf the work of Hooton found evidence of biological inferiority). William Sheldon identified three basic body or somatotypes (i.e. endomorphs, mesomorphs, and ectomorphs), and introduced a scale to measure where each individual was placed. He concluded that delinquents tended to mesomorphy. Modern research might link physical size and athleticism and aggression because physically stronger people have the capacity to use violence with less chance of being hurt in any retaliation. Otherwise, such early research is no longer considered valid. The development of genetics has produced another potential inherent cause of criminality, with chromosome and other genetic factors variously identified as significant to select heredity rather than environment as the cause of crime (see: nature versus nurture). However, the evidence from family, twin, and adoption studies shows no conclusive empirical evidence to prefer either cause.
Intelligence
There are a number of reputable studies that demonstrate a link between lower intelligence and criminality. But the evidence is equivocal because studies among the prison population simply test those criminals actually caught, which might be because they failed to plan the crimes properly or because they were unable to resist interrogation techniques and admitted their crimes. If their intelligence is poor, they are also less likely to be deterred.
Other medical factors
Testosterone and adrenaline have been associated with aggression and violence, and the arousal and excited state associated with them. The excessive consumption of alcohol can lower blood sugar levels and lead to aggressiveness, and the use of chemicals in foods and drinks has been associated with hyper-activity and some criminal behaviour.
Psychological positivism

Sigmund Freud divided the personality into the id, the primitive biological drives, the superego, the internalised values, and the ego, memory, perception, and cognition. He proposed that criminal behaviour is either the result of mental illness or a weak conscience. John Bowl by proposed an attachment theory in which maternal deprivation was a factor that might lead to delinquency. This has been discounted in favour of general privation (Michael Rutter: 1981) or "broken homes" (Glueck: 1950) in which absentee or uncaring parents tend to produce badly behaved children.
Hans Eysenck (1987) stated that, "... certain types of personality may be more prone to react with anti-social or criminal behaviour to environmental factors of one kind or another." He proposed three dimensions of personality: introversion/extroversion, neuroticism, and psychoticism. For these purposes, personality is the settled framework of reference within which a person addresses the current situation and decides how to behave. Some traits will be dominant at times and then in a balanced relationship to other traits, but each person's traits will be reasonably stable and predictable (see Marshall: 1990 and Seidman: 1994). Hence, once conditioned into a criminal lifestyle, the relevant personality traits are likely to persist until a countervailing conditioning force re-establishes normal social inhibitions. Some forms of criminal behavior such as sexual offences, have been medicalised with treatment offered alongside punishment.

Social positivism.
In general terms, positivism rejected the Classical Theory's reliance on free will and sought to identify positive causes that determined the propensity for criminal behaviour. Rather than biological or psychological causes, this branch of the School identifies "society" as the cause. Hence, environmental criminology and other sub-schools study the spatial distribution of crimes and offenders (see Adolphe Quetelet, who discovered that crimes rates are relatively constant, and the Chicago School which, under the leadership of Robert E. Park, viewed the city as a form of superorganism, zoned into areas engaged in a continuous process of invasion, dominance, and succession). Meanwhile, Émile Durkheim identified society as a social phenomenon, external to individuals, with crime a normal part of a healthy society. Deviancy was nothing more than "boundary setting," pushing to determine the current limits of morality and acceptability.

Radicalism

Radical criminology holds that crime is caused by the social and economic forces of society. It states that society "functions" in terms of the general interests of the ruling class rather than "society as a whole" and that while the potential for conflict is always present, it is continually neutralized by the power of a ruling class. Given its nature, radical criminology is not well funded by governments and is generally not supported by government policies.

Conflict theory is based upon the view that the fundamental causes of crime are the social and economic forces operating within society. The criminal justice system and criminal law are thought to be operating on behalf of rich and powerful social elites, with resulting policies aimed at controlling the poor. The criminal justice establishment aims at imposing standards of morality and good behavior created by the powerful on the whole of society. Focus is on separating the powerful from have nots who would steal from others and protecting themselves from physical attacks. In the process the legal rights of poor folks might be ignored. The middle class are also co-opted; they side with the elites rather the poor, thinking they might themselves rise to the top by supporting the status quo.

Thus, street crimes, even minor monetary ones are routinely punished quite severely, while large scale financial and business crimes are treated much more leniently. Theft of a television might receive a longer sentence than stealing millions through illegal business practices. William Chambliss, in a classic essay “The Saints and the Roughnecks,” compared the outcomes for two groups of adolescent misbehavers. The first, a lower class group of boys, was hounded by the local police and labeled by teachers as delinquents and future criminals, while the upper-middle class boys were equally deviant, but their actions were written off as youthful indiscretions and learning experiences.

Radical criminology or critical criminology is a branch of conflict theory, drawing its ideas from a basic Marxist perspective. For Karl Marx (1818-1883), modern capitalist societies were controlled by a wealthy few (bourgeoisie) who controlled the means of production (factories, raw materials, equipment, technology, etc.) while everyone else (the proletariat) was reduced to the lot of being wage laborers. While Marx himself never really addressed in detail the criminal justice system’s specific role in keeping such a system in place, from his writings a radical tradition has emerged. From this perspective, certain types of crime take on a different character. Stealing can be seen as an attempt to take away from the rich. Eric Hobsbawn referred to the like as “social banditry.” Protest-related violence may

(ii) Learning Theories of Causation – Differential Association Theory of Sutherland

The principles of Sutherland's Theory of Differential Association can be summarized into nine key points:
1. Criminal behaviour is learned.
2. Criminal behaviour is learned in interaction with other persons in a process of communication.
3. The principal part of the learning of criminal behaviour occurs within intimate personal groups.
4. When criminal behaviour is learned, the learning includes techniques of committing the crime, which are sometimes very complicated, sometimes simple and the specific direction of motives, drives, rationalizations, and attitudes.
5. The specific direction of motives and drives is learned from definitions of the legal codes as favourable or unfavourable.
6. A person becomes delinquent because of an excess of definitions favourable to violation of law over definitions unfavourable to violation of the law.
7. Differential associations may vary in frequency, duration, priority, and intensity.
8. The process of learning criminal behaviour by association with criminal and anti-criminal patterns involves all of the mechanisms that are involved in any other learning.
9. While criminal behaviour is an expression of general needs and values, it is not explained by those needs and values, since non-criminal behaviour is an expression of the same needs and values.

(iii) Social Disorganization Theories – Durkheim, Merton

In The Division of Labor in Society, Durkheim proposed two concepts. First, that societies evolved from a simple, nonspecialized form, called mechanical, toward a highly complex, specialized form, called organic. In the former society people behave and think alike and more or less perfom the same work tasks and have the same group-oriented goals. When societies become more complex, or organic, work also becomes more complex. In this society, people are no longer tied to one another and social bonds are impersonal.

Anomie thus refers to a breakdown of social norms and it a condition where norms no longer control the activities of members in society. Individuals cannot find their place in society without clear rules to help guide them. Changing conditions as well as adjustment of life leads to dissatisfaction, conflict, and deviance. He observed that social periods of disruption (economic depression, for instance) brought about greater anomie and higher rates of crime, suicide, and deviance.

Durkheim felt that sudden change caused a state of anomie. The system breaks down, either during a great prosperity or a great depression, anomie is the same result.

(iv) Psychodynamic Theory - Freud
Freud proposed that much deviance resulted from an excessive sense of guilt as a result of an overdeveloped superego.  Persons with overdeveloped superegos feel guilty for no reason and wish to be punished in order to relieve this guilt they are feeling and committing crimes is a method of obtaining such desired punishment and relieving guilt.  In effect, a person commits the crime so that they can get punished and thus relieve guilt – the guilt comes before the crime.  According to this view, crime is not the result of a criminal personality, but of a poorly integrated psyche.

Freud also identified the “pleasure principle”; that humans have basic unconscious biological urges and a desire for immediate gratification and satisfaction.  This includes desires for food, sex, and survival. Freud believed that if these could not be acquired legally, people would instinctively try to do so illegally. Freud also believed that people have the ability to learn in early childhood what is right and what is wrong and though we may have an instinctive nature to acquire what we desire, such nature can be controlled by what is learned in our early years. He believed that people primarily get moral principles as a young child from their parents and that if these were missing because of poor parenting, that child would grow up into being less able to control natural urges to acquire whatever is needed.

August Aichorn is probably the best known neo-Freudian in criminology.  Aichorn felt that there were three predisposing traits that had to be present before the emergence of a life of crime: the desire for immediate gratification, placing greater desire on one’s personal desires over the ability to have good relationships with other people and a lack of guilt over one’s actions.

(v) Economic Theory of Crime – Marxist – WA Bonger – Thorston Sellin
Dutch criminologist, Willem Bonger,who believed in a causal link between crime and economic and social conditions. He asserted that crime is social in origin and a normal response to prevailing cultural conditions. In more primitive societies, he contended that survival requires more selfless altruism within the community. But once agricultural technology improved and a surplus of food was generated, systems of exchange and barter began offered the opportunity for selfishness. As capitalism emerged, there were social forces of competition and wealth, resulting in an unequal distribution of resources, avarice and individualism. Once self-interest and more egoistic impulses assert themselves, crime emerges. The poor would commit crime out of need or out of a sense of injustice. Hence, those with power exercise control and impose punishment, equating the definition of crime with harm or threat of harm to the property and business interests of the powerful. Although the inherent activities comprising, say, a theft, may be identical, theft by the poor will be given greater emphasis than theft by the rich. This will have two consequences: direct which will increase the pressure for survival in an unequal society, and indirect in that it will increase a sense of alienation among the poor. Crime in the streets was a result of the miserable conditions in which workers lived in competition with one another. He believed that poverty alone could not be a cause of crime but rather poverty coupled with individualism, materialism, false needs, racism, and the false masculinity of violence and domination among street thugs.

Thorsten Sellin
Sellin was a sociologist at the University of Pennsylvania and one of the pioneers of scientific criminology. His method involved a comprehensive view of the subject incorporating historical, sociological, psychological, and legal factors into the analysis. He applied both Marxism and Conflict Theory to an examination of the cultural diversity of modern industrial society. In a homogeneous society, norms or codes of behaviour will emerge and become laws where enforcement is necessary to preserve the unitary culture. But where separate cultures diverge from the mainstream, those minority groups will establish their own norms. Socialization will therefore be to the subgroup and to the mainstream norms. When laws are enacted, they will represent the norms, values and interests of the dominant cultural or ethnic groupd in a state which may produce Border Culture Conflict. When the two cultures interact and one seeks to extend its influence into the other, each side is likely to react protectively. If the balance of power is relatively equal, an accommodation will usually be reached. But if the distribution of power is unequal, the everyday behaviour of the minority group may be defined as deviant. The more diversified and heterogeneous a society becomes, the greater the probability of more frequent conflict as subgroups who live by their own rules break the rules of other groups.

ii
Readings:
1. Harry Elmer Barnes and Negley K. Teeters, “The Eternal Quest for the Causes of Crime”, New Horizons in Criminology 116-119 (3rd ed., 1959)

The Dilemma of Causation

Two phases of crime causation & prevention call for maximum attention.

Professor Frank Tannenbaum – Crime is eternal as eternal as society - Ever present condition – sickness, disease & death.

Italian criminologist Giorgio Florita – like sin, crime is normal in society & it is our sanctions & laws, made by men that are abnormal.

2. George B. Vold, Thomas J. Bernard, Jeffrey B. Snipes, “Classical and Positivist Criminology”, Theoretical Criminology (5th ed., 2002)

Socialist & Intellectual Background of Classical Criminology

Beccaria & the classical school
9 Principles summarizing Beccaria

1. Legislature – both define crimes & punishment – those days general laws & judges discretion
2. Role of judges to strictly determine guilt
3. Seriousness of a crime should be determined by the extent of harm inflicted on society
4. Proportionate punishments. Purpose to deter crime.
5. Punishments unjust when severity exceeds what is necessary to achieve deterrence.
6. Excessive severity not only fails to deter crime but increases it.
7. Punishments should be prompt.
8. Punishments should be certain.
9. Laws should be structured to prevent crimes in the 1st place.

Beccaria’s principle – list of forbidden books (Roman Catholic church) – later used as a basis for French Code – After French revolution.

Transition to positivist criminology

1st annual national crime statistics – 1827 France – (60 years after Beccaria’s book written) – crime statistics – astonishingly regular – free will theory suffered a jolt – showed failure of classical punishment policies

Cesare Lombroso – Physician – Criminal Anthropology – Discussed above

Relation between positivist & classical theories – Not really opposed to each other.

Roshier in defence of Classical theory argues – In general there was nothing inherent in Beccaria’s intellectual position to preclude a consideration of the socio-economic context of crime, any more than there was to necessitate his sole concentration on deterrence…. Indeed it is an oddity that he seemed to see the criminal justice system as being the only aspect of the environment that influences individual decisions about whether it is worthwhile to commit crime or not.

Gottfredson & Hirchi in defence of positive criminology argue – No deterministic explanation of crime can reasonably exclude the variables of the classical model on deterministic grounds. These variables may account for some of the variation in crime. If so they can have as much claim to inclusion in a “positivistic” model as any other set of variables accounting for the same amount of variation.

3. Edwin H. Sutharland and Donald R. Cressey), “A Sociological Theory of Criminal Behavior”, Criminology (10th ed.).

Two types of explanations for criminal behaviour – (i) response to situations – (ii) opportunities.

4. Katherine S. Williams, , “Anomie, Strain and Juvenile Subculture”, Textbook on Criminology, 343-367 (3rd ed., 1997)

Anomie & Criminality
Chambers 20th Century Dictionary defines ‘anomie’ as: ‘a condition of hopelessness caused by a breakdown of rules of conduct, and loss of belief & sense of purpose in society or in an individual.’ In criminological terms used to depict a state of lawlessness or normlessness.

Emile Durkheim – homogeneous societies  mechanical. Interdependent societies  organic

Both societies  imp role of law. Crime normal occurrence – impossible to have a society devoid of crime. All societies generate rules & sanction and these are broken. Crime up to certain level  healthy. Claimed that best level of healthy level of criminality were found in simple mechanical societies. Unhealthy level more likely in organic societies.

Three categories of crimes arising from unbalanced division of labour
- Combination of financial & industrial conflict
- Rigid & unnatural class divisions
- Abnormal division of labour such that workers – alienated from jobs - disinterested

Merton – Robert K Merton (USA) – built upon Durkheim’s idea to explain crime problem in USA
Instead of centering problems of anomie on the insatiable desires of human beings, he explains them as something which may exist when desires & needs, though limited, still go beyond what could be satisfied in socially accepted ways.

Merton introduced both desires and means – he stressed mere desires won’t create anomie if the means are socially acceptable. Link between means & desires has led to formation of strain theory – one in which everyone is pressured to succeed – but those less likely to succeed are under most strain to use illegitimate or illegal means.

Dukheim – individual desires from within, according to Merton – desires largely defined by society. Eg. In USA – wealth is supposed to be strived for. Any one who does not is considered lazy and or less worth.

Merton lays down that healthy society lays down acceptable means of achieving the ends or goals.

Merton’s theory also known as ‘Means-End theory of deviance’ – Involves assessment both of desired goals & of structural means. Used their interaction to describe 5 types of social activity or reaction by individuals to the society in which they live.
1. Conformity – People accept both desires & means.
2. Innovation – Accept goals but reject means in favour of more effective but officially prescribed means. Crimes against property, theft & burglary, organized crime where goal is financial gain.
3. Ritualism – Goals abandoned but means adhered to. Does not involve criminality.
4. Retreatism – Rejects both goals & means. Vagrant, tramps, alcoholics & drug addicts. Also members of religious sects.
5. Rebellion – Reject goals & means but attempt to establish new goals in place of old ones. Eg. Destructive crimes, wilful damage to property, crimes of public disorder.

Above not mutually exclusive – focus of Merton more on crimes according to lower income group – accepting the statistics of crime reported.

Differences Merton / Durkheim
1. Durkheim – desires of individuals are natural & fixed, the level of criminal behaviour and of anomie is decided by the efficiency with which these desires are restrained, and that they are most likely to crumble & generate crime in periods of rapid change. Merton on the other hand says that society, not the individual sets the desires & goals. Same society sets the acceptable means of achieving the ends. If rewards are bestowed only for obtaining the ends, the restraining means become weakened, encouraging the use of unacceptable & illegal means.
2. Dukheim talks about the whole society being anomic, and Merton only considers anomie affects only certain parts of the society( Lower classes). Opportunities (legitimate) to achieve wealth. Exist for higher classes not for the lower classes.

5. George B. Vold, Thomas J. Bernard, Jeffrey B. Snipes, “Durkheim, Anomie and Modernization”, Theoretical Criminology, (5th ed. 2002)

1969 – Travis Hirschi – Used Durkeim’s theory as a basis for his Control theory

Emile Durkheim – (1858-1917) – Best known least understood social thinkers – 19th Century turmoil in France – French revolution 1789 + Rapid industrialization.

“Revolutions,” Nisbet has pointed out that “In terms of immediacy & massiveness of impact on human thought & values, it is impossible to find revolutions of comparable magnitude anywhere in human history.”

Sociology developed by August Comte in 1st half of the century, largely in response to the effects of the two revolutions.
CRIME AS NORMAL IN MECHANICAL SOCIETIES
Dukheim – collective conscience – society to be formed– perpetual & costly sacrifices”. Solidarity – crime helps in maintaining – solidarity in the society – moral superiority – Superiority of goodness & righteousness  primary source of social solidarity.

Punishment of criminals also a source of social solidarity – not because of retribution & deterrence but because without them those who are making the “perpetual & costly sacrifice” would become severely demoralized.

Crime – price society pays for the possibility of progress. Progress  Originality finds expression. In this expression of originality the originality of the criminal is also possible.

Society without crime compared to child who never misbehaves  Pathologically over controlled.

ANOMIE AS A PATHOLOGICAL STATE IN ORGANIC SOCIETIES

The Division of Labour in Society – Industrialization – destroyed traditional solidarity based on uniformity

Le Suicide – Statistically analyzed data that showed that suicide rate tends to increase sharply both in periods of economic decline and economic growth.

Suicide in Economic Decline easily understood – Suicide in economic progress- Durkheim animal & man, animal  physical needs satisfied  animal satisfied. Human  active imagination  always new wants & needs. Human appetites naturally unlimited.

Only mechanism to limit human appetites is society  moral rules
Various situations where rules weaken or even breakdown

ASSESSING DURKHEIM’S THEORY OF CRIME

Erikson – Durkheim Theory on stability of punishment in mechanical society, based on a study of the Puritan colony in 17th century Massachusetts. Relatively constant level of punishment throughout the century despite three crime waves attributed to Antinomians, Quakers, and witches.

Blumstein – similar study – USA (1924 – 1974), Canada(1880 to 1959) Norway (1880 to 1964).

Durkheim’s theory does not predict that punishment levels in modern industrialized societies remain constant, since those cannot be considered mechanical societies.

3 arguments of Durkheim about crime during transition period from Mechanical to Organic
- Greater variety of behaviours would be tolerated [Wolfgang – Contemporary American society illustrates Durkheim’s first argument.]
- Punishment  less violent  repression to restitution [ Spitzer found more developed societies were characterized by severe punishments while simple societies were characterized by lenient punishments, which is the opposite of what Durkheim predicted. Spitzer’s finding consistent with several studies ]
- Vast expansion of functional law. [ Gurr found veritable explosion of laws & administrative codes ]

Criticism of Durkheim’s theory – Crime was not rising during the time of industrial revolution. Lodhi & Tilly concluded that incidence of theft & robbery declined during the period of 1831 to 1931.

Neuman & Berger

Bennet challenged Durkheim’s theory – (using data from 52 nations [1960-84]) argued that
(i) The rate of increase of crime should be directly proportional to the rate of growth in the society.
(ii) both theft & homicide should increase during periods of rapid growth;
(iii) The level of development itself should not affect crime rates as long as the country is not rapidly changing.

CONCLUSION

6. Geilbert Geis and Colin Goff, “The Problem of White Collar Crime”, Edwin H. Sutherland, White Collar Crime ix-xxxiii, 3-10 (1983)

Historical background – EH Sutherland – Albert Morris refers to a paper ‘Criminal Capitalist’ read by Edwin C Hill before the Int’l Congress on the Prevention & Repression of Crime at London in 1872. Sutherland examined 70 large corporations involved in WCC.

Definition of White Collar Crime – Sutherland  “Crime committed by persons of respectability & high social status in course of their occupation. Further pointed out that WCC more harmful than ordinary crimes because of the financial loss to society from white collar crimes is far greater than the financial loss from burglaries, robberies, larcenies etc. Most dismal aspect of WCC is that there is no effective programme for the enforcement of criminal law against them.

US Prez Roosevelt 1933 insisted on withdrawal of  Caveat Emptor from adjudication of WCC cases.

Sir Walter Reckless(US) – WCC represents offence of businessmen who are in a position to determine the policies & activities of business.

Lord Acton – Power tends to corrupt & absolute power tends to corrupt absolutely.

Criticisms of Sutherland’s view on White Collar Crime

Coleman & Moynihan – Sutherland’s defn – lack of definite criteria for determining who are ‘people of respectability & status’. – Included theft & frauds by middle or even lower class workers as WCC – should have been called occupational crimes. – Special tribunals –hence not crimes, Sutherland defends special tribunals – protect offender from stigma of criminal prosecution. Tax evasion not limited to upper strata – not in course of occupation. – WCC does not require mens rea. – statutory offence.

Contributing Factors – Economic & Industrial growth – Marshal B Clinard – WCC roots in competitive business community -

White Collar Crime in India

Sanathanam Committee on Prevention of Corruption – in its report observed – advancement of Science & Tech contributing to ‘mass society’ with small controlling elite, encouraging growth of monopolies, rise of the managerial class, intricate institutional mechanisms. strict adherence to high standards of ethical behaviour is essential for the even & honest functioning of the new social, political & economic processes. Inability of all sections of society to appreciate this need in full results in WCC & economic crimes…. Examples tax evasion, hoarding, black market, etc…

Vivin Bose Commission report into the affairs of Dalmia Jain group of companies in 1963 highlights how these big industries indulge in WCC. Mr Justice MC Chagla similar observation about Mundhra group – 124 prosecutions between 1958 – 1960. 113 resulted in convictions.

Hoarding, Black Marketing & Adulteration

Tax Evasion

White Collar Crime in certain professions
- Medical
- Engineering
- Legal Profession
- Educational Institutions
- White collar crimes in business deals
- Fake Employment Placement deals

White collar crimes distinguished from conventional crimes

Remedial Measures
- Media, Special tribunals, Separate chapter in IPC on WCC, Stiffer punishments, Urgent need for national crime commission, Public vigilance cornerstone of anti WCC

Legislation currently in force
IT Act, Customs Act 1962, Central Excise & Salt Act 1944, FERA 1973, Banking Regulation Act 1949, Prevention of Corruption Act, 1988. POTA 2002, AFSPA, Copyright Act, TM Act, Competition Act, Companies Act

Topic 3 : The Indian Crime Reality

(i) Organized Crimes
- Organized predatory crime [no service to affected person – one way transaction – theft, robbery, extortion, dacoity, kidnapping, etc. Sutherland professional criminal gangs involve greater skill than occasional crime.]
- Crime Syndicate – a gang of criminals engaged in business of providing some forbidden or illegal service to the customers who are desirous of having it and willing to pay handsomely for it – David Dressler observed  quasi immunity of top level gangsters (known as fix)
- Criminal Racket [Donald Taft- as an organized crime where some kind of service is provided to the affected persons – Illegal exploitation for some legitimate or illegitimate demand. Types – Business Labour Racket – Gambling Racket - Other]
- Political Graft -

(a) Cyber Crime
Definition of cyber crime
Reasons for cyber crime
Viruses
Virus Hoax
Computer as a target of the crime
Computer as an instrument facilitating crime
Traditional Classification
- Cyber crime of economic type
- Cyber crime against privacy
General Classification
- Cyber crime against person – against property – against state or society

Hacking – Email Spoofing, Computer Vandalism, Cyber terrorism, Cyber pornography, Cyber defamation, Email frauds(Spam), Money Laundering, Data Diddling, Intellectual property crimes,

Preventive legal measures against Cyber Crime
- Information Technology Act, 2000 S29A IPC refers to S2(1)(t) of Information Tech Act 2000, which defines electronic record. Data record or data generate image or sound stored, received or sent in an electronic form or micro-film or computer generated micro-fiche.

Salient features of IT Act 2000,
- Legal recognition to ecommerce
- recognizes electronic records
- Legal recognition to digital signatures
- Cyber law appellate tribunal has been set up to hear appeal against adjudicating authorities
- Provisions of IT Act have no application to negotiable instruments, power of attorneys, trust, will, and any contract for sale or conveyance of immovable property.
- Act applies to any cyber offense or contravention committed outside India by a person irrespective of his/her nationality.
- S90  St Govt may make rules by publishing in official gazette to carry out the provision of the act.
- Consequent to this act SEBI had announced that trading of securities on the internet will be valid in India, but initially there was no specific provision for protection of confidentiality & net trading. This lacuna has been removed by IT(Amendment) Act 2008.

Offences under the Act
1. Unauthorized access (S43)
2. Failure to furnish information, return etc, (S44)
3. Tampering with computer source documents (S65)
4. Hacking (S66)
5. Publishing of info  obscene (S67)
6. Failure to comply with directions of controller (S68)
7. Power to issue directions of interceptions or monitoring or decryption of any information through any computer resource.
8. Accessing protected system (S70)
9. Misrepresentation (S71)
10. Penalty for breach of confidentiality or privacy (S 72)
11. Publishing digital signature certificate false in certain particulars (S73)
12. Publishing digital signature certificate for fraudulent purposes. (S74)
13. Compounding of offences (S77-A)
14. Offences with 3 years punishments to be bail-able (S77B)


(b) Trafficking

(c) Narcotic Trade

(d) Money Laundering

(ii) Privileged Class Deviance
Reading:
B.B. Pande, “Privileged Class Deviance – Nature and Dimensions”, The Other Side of Development (1987)

Topic 4 : Juvenile Delinquency

(i) Concept of Juvenile Delinquency

Delinquency derived from Latin word delinquer which means ‘to omit’. Romans used the term to refer to the failure of a person to perform the assigned task or duty. Found in Shakespearean play Macbeth.

However penologists interpret the term ‘juvenile delinquency’ differently. Generally speaking, the term refers to a large variety of disapproved behaviours of children and adolescents which the society does not approve of, and for which kind of admonition, punishment or corrective measure is justified in public interest. Thus the term has a very extensive meaning and includes rebellious and hostile behaviour of children and their attitude of indifference towards society.

Albert Cohen observed that the only possible definition of delinquency is one that relates to the behaviour in question to some set of rules. The rules themselves are a heterogeneous collection of regulations, some common to all communities & others only to be found in one or two.

Broad generic sense – variety of anti-social behaviour, defined differently by societies. Some acts considered as juvenile delinquency, are  non criminal in nature & freely tolerated if done by adults i.e. smoking, drinking alcohol etc.

General assembly of UN – adopted the convention on Rights of the Child on 20 Nov 1989. – emphasized on social reintegration of child victims, to the extent possible, without resorting to judicial proceedings. GoI ratified Convention on 11 Dec 1992 and it became

Causes of Juvenile Delinquency

- Industrial development – urbanization – housing, slum, overcrowding, lack of parental control
- Disintegration of family system – broken homes
- Unprecedented divorce cases.
- Rapidly changing patterns -modern living – cultural conflict – unable to distinguish right wrong
- Early physical maturity
- Migration of deserted & destitute boys to slums brings them in contact with anti-social elements carrying on prostitution, smuggling of liquor or narcotic drugs & bootleggers.
- Poverty – yet another potential cause – failure of parents to provide for basic needs
- Illiteracy, child labour, squalor etc.

Justifications which the juveniles may advance against their Delinquent act
- Deny responsibility claiming act was a result of uncontrolled passion, accident, poverty or parental neglect.
- May take plea that no one is actually harmed
- May claim that Victim was also criminal or wrong.
- May claim that everyone has at sometime or the other committed a criminal act – hence no moral justification to blame or condemn him.
- Approval of gang/ criminal group may be more important than that of family/society.

Juvenile Justice in UK
‘Ragged industrial school movement’ started in 2nd qtr of the 19th century – Miss Mary Carpenter – House of Lords enacted legislation in 1847

1838 – Park Hurst prison setup for treatment of juveniles.
Int’l Congres on Prevention of Crime & Treatment of offences held in Paris 1895 – unanimously agreed for special procedure & greater discretion of courts while dealing with juvenile offenders.
Probation of offenders act 1907
Juvenile Courts 1st established in 1908
Children & Young offenders act 1933 conferred civil powers to juvenile courts in certain important matters. Act provided that any child(<14 years) & young person (14 to 17) should be tried by a juvenile court.

Juvenile Justice in USA

Origin of Juvenile courts traced back to appointment of State Agents in Massachusetts(Boston) 1869. State agents – protective care of juveniles. 1878 work of State agents transferred to probation officers.

Presently Juvenile court in each state of the US. – Simple procedure. Police custody – discretion to keep or release him immediately.  then contacts juvenile court for notification of parents & the person notified by the court assumes responsibility of custody of the delinquent.

Incase of violation of probation rules- Child sent to Certified school or to Children’s Home.

Age limit 17 years – can be waived in case of repeat offenders or danger to society (esp in case where age is close to statutory limit).

(ii) Legal Position in India

3 fundamental assumptions which form the basis of juvenile laws in India
- Should not be tried but corrected
- Not be punished but reformed
- Exclusion of delinquents in conflict with law from the ambit of the Court & stress on their non penal treatment through community based social control agencies such as a Juvenile Justice Board, Observation Homes,

Clear cut definition of juvenile delinquency – Any violation of existing penal law committed by  a child under 18 years, shall be an act in conflict with law for the juvenile board.

Special provisions
IPC Ss 82 & 83 elaborate provisions – below 7 yrs doli incapax – incapable of committing a crime.
Btw 7 to 12 years only limited criminal liability.

S360 CrPC 1973, below 21 yrs of age or any woman convicted of an offence not being punishable with life imprisonment or death, & no previous conviction is proved – court having regard to character, antecedents of offender & to the circumstances in which offence was committed, may order release of the offender on probation of good conduct for a period not exceeding 3 years on entering into a bond with or without sureties, instead of sentencing him to any punishment. Such 1st offenders are not to be tried in a criminal court through ordinary procedure. Instead they are to be dealt with & corrected through special methods or treatment under the law. The object is to segregate the young offenders from the hardened criminals.

S27 CrPC – Lenient treatment to juveniles – below 16 years commits an offence (other than one punishable with Life Imprisonment or death) should be awarded lenient punishment depending upon previous history, character, circumstances(offence), further sentence can be commuted for good behaviour.

History of JJ Act in India

UND of Rights of Child 1959 - Children’s Act 1960 –

Thereafter 113 nations by consensus promulgated the Vienna Declaration & Programme of Action where rights of child in general & girl child in particular, received world wide recognition.

Standard minimum rules for the Administration of Juvenile Justice adopted by UN in Nov 1985  JJ Act 1986, - w.e.f October 2, 1987.

Main Objectives of JJ Act 1986
- lays down uniform frame work for juvenile justice
- Spelled out machinery & infrastructure reqd fr care, protection, treatment, development, rehabilitation of various categories of children within the purview of Juvenile Justice system.
- Sets out the norms & standards for administration of justice in terms of investigation & prosecution, adjudication.
- Sought to develop appropriate linkage & coordination between the formal system of juvenile justice & voluntary agencies engaged in the welfare of neglected & socially maladjusted children.
- Constituted certain special offences in relation to juveniles & provided punishment for them.
Act remained operative for 13 yrs, repealed by JJA(C&P of C) 2000 w.e.f Dec 30, 2000.

Readings:
The Juvenile Justice (Care and Protection of Children) Act, 2000

(1) Basis of determining whether accused is a juvenile
SC in Deepak Nandan Dayma v State of UP – SC held that entry in the school register as to the DoB of student is admissible in evidence to show whether juvenile or not.
Prabhunath Prasad v St of Bihar – SC held that TC should suo motu hold an inquiry as to the exact age of the accused so as to estimate any kind of dispute or doubt as to eligibility of the accused for being tried under the Juvenile Justice Act.
Ku Anita v Atal Behari – HC of MP ruled that DoB of juvenile recorded in Registrar of Birth & Death more authentic than one entered in the medical report hence former should be given priority.
Ramdeo alias Rajnath Chouhan v St of Assam – DoB in school register may be accepted provided it is entered by a competent authority. [In this case it could not be proved that entered by authentic authority or public servant hence evidence not accepted by the bench.]

In Dhruvendra Singh v State of Rajasthan the HC observed that for the purpose of application of JJ Act, court should not depend on medical report of the accused or his physical built of the body for determination of age but should take into consideration the DoB in the school register or any other available evidence of the age.

(2) Relevant date – determination of age – whether it should be the date on which the offence is committed or the date on which the juvenile is brought before the court for trial?

In Pratap Singh v St of Raj  3 judge bench found conflict between Arnit Das v St of Bihar (date when juvenile is brought before court) & Umesh Chandra v St of Raj (date of offence) referred to CB in 2000. CB unanimously held that date for determining age is the date on which the offence was committed.

Later the amendment by August 22, 2006 made it clear that even juveniles who were below the age of 18 years prior to 1st April 2001 would be treated as juveniles even thought the claim of juvenility was raised after they had attained the age of 18 years on or before the commencement of the act.

Release of Juvenile on Probation -

Orders which the Juvenile Justice Board cannot make –
Section 16 prohibits the following
(i) Order awarding death sentence.
(ii) Order awarding Life imprisonment.
(iii) Order for imprisonment for default of payment of fine.
(iv) Order for imprisonment in default of furnishing security.

Act does not permit joint trial of juvenile with a non juvenile.
Order against juvenile found guilty under JJ Act 2000 only, not any other act.

Removal of Disqualification attaching to Conviction of Juvenile (Sec 19)
A juvenile shall not suffer disqualification if any attaching to a conviction of an offence under such law. Analogous to S12 of Probation of Offenders Act 1958.
19(2) requires board to issue directions that the relevant records of conviction of juvenile should be removed after the expiry of the period of appeal or a reasonable period as prescribed under the rules in pursuance of the Act.

Pending cases – (disposal of) (Sec 20)
If juvenile on date of enforcement of this act (1st April 2001) then to be dealt under JJ2000, otherwise JJ1986.

Penalties under JJA 2000.
S23. Punishment for cruelty to juvenile or child. – upto 6 months, fine or both

S24. Employment of juvenile or child for begging.-
(1) Whoever, employs or uses any juvenile or the child for the purpose or causes any juvenile to beg shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine.
(2) Whoever, having the actual charge of, or control over, a juvenile or the child abets the commission of the offence punishable under sub- section (1), shall be punishable with imprisonment for a term which may extend to one year and shall also be lia le to fine.

S 25. Penalty for giving intoxicating drug or psychotropic substance to juvenile or child. – upto 3yrs fine or both.

S 26. Exploitation of juvenile or child employee – 3yrs fine or both.

Children in need of Care & protection (Chapter III, Ss 29 to 39)

S29 Child Welfare Committees
(1) St Govt – notification – one or more CWC
(2) Chairman + 4 members (1 woman + 1 child expert)
(3) Qualification may be prescribed
(4) Disqualifications of members – (i) misuse of powers u/ this act (ii) conviction – proviso reversed, full pardon (iii) non attendance for 3 consecutive months or more.
(5) Confers power = a Bench of Magistrate, power conferred u/ CrPC (MM or JM 1st Class)

Functions & procedures Ss30 - 33
S30 Procedures in relation to committees – majority – chairperson in case of no majority – absence of members
S31 Powers of committee
S32 Production before committee
S33 Inquiry

S34 Estb of Children’s Home for the reception of Child in need of care & protection
S35 Inspection
S36 Social auditing

S37 Shelter Homes (object– for destitute & shelter less children)

Social Reintegration of Juveniles in Conflict with Law & Neglected Children (Ss 40 to 45)
1. Adoption S41
2. Foster Care S42
3. Sponsorship S43
4. After-care programs S44

S41 sub clause (5) & (6)
(5) No child shall be offered for adoption-
(a) until two members of the Committee declare the child legally free for placement in the case of abandoned children,
(b) till the two months period for reconsideration by the parent is over in the case of surrendered children, and
(c) without his consent in the case of a child who can understand and express his consent.
(6) The Board may allow a child to be given in adoption-
(a) to a single parent, and
(b) to parents to adopt a child of same sex irrespecitve of the number of living biological sons or daughters.

Miscellaneous Provisions (Chapter V JJ Act 2000)
Section 46. Attendance of parent or guardian of juvenile or child
Section 47. Dispensing with attendance of juvenile or child
Section 48. Committal to approved place of juvenile or child suffering from dangerous diseases and his future disposal
Section 49. Presumption and determination of age
Section 50. Sending a juvenile or child outside jurisdiction
Section 51. Reports to be treated as confidential

Section 52. Appeals
(1) Subject to the provisions of this section, any person aggrieved by an order made by a competent authority under this Act may, within thirty days from the date of such order, prefer an appeal to the Court of Session: Provided that the Court of Session may entertain the appeal after the expiry of the said period of thirty days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
(2) No appeal shall lie from-
(a) any order of acquittal made by the Board in respect of a juvenile alleged to have committed an offence; or
(b) any order made by a Committee in respect of a finding that a person is not a neglected juvenile.
(3) No second appeal shall lie from any order of the Court of Session passed in appeal under this section.

Section 53. Revision
Section 54. Procedure in inquiries, appeals and revision proceedings
Section 55. Power to amend orders
Section 56. Power of competent authority to discharge and transfer juvenile or child
Section 57. Transfer between children’s homes, under the Act, and juvenile homes, of like nature in different parts of India
Section 58. Transfer of juvenile or child of unsound mind or suffering from leprosy or addicted to drugs
Section 59. Release and absence of juvenile or child on placement
Section 60. Contribution by parents
Section 61. Fund
Section 62. Central, State, district and city advisory boards
Section 63. Special juvenile police unit
Section 64. Juvenile in conflict with law undergoing sentence at commencement of this Act
Section 65. Procedure in respect of bonds
Section 66. Delegation of powers
Section 67. Protection of action taken in good faith
Section 68. Power to make rules
Section 69. Repeal and savings
Section 70. Power to remove difficulties


Juvenile Justice (Care & Protection of Children) Amendment Act, 2006
Objectives:-
- Clarify that the JJ Act shall apply to all cases involving detention or criminal prosecution of juveniles under any other law
- Remove doubts as to relevant date in determining the juvenility of a person & applicability of Juvenile Justice Act;
- To provide alternatives to detention in Observation Homes to achieve the objective of the JJ Act;
- Elimination of association of any police officer from the inquiry process in case of a child in need of care & protection, as this work is assigned to the Child welfare committees.
- Extend scope of adoption of a child to childless parents and to limit the same under JJ Act to Indian citizens only.
- Provide flexible period of leave that may be given to child on special occasions like examination, marriage of relatives, death of kith & kin or accident or serious illness or any emergency of like nature. S59(2) JJ Act 2000.

Special Juvenile Police Units (Sec 63)
- One in every Police station (Child welfare officer)
- Training, Supervisory field work, Coordination (with Social welfare agencies), Counselling,
- Justice Krishna Iyer in report submitted to Govt recommended women police for handling women and juvenile offenders.

Grant of Bail to Juvenile
12. Bail of juvenile.-
(1) When any person accused of a bailable or non- bailable offence, and apparently a juvenile, is arrested or detained or appears or is brought before a Board, such person shall, notwithstanding anything contained in the Code of Crim nal Procedure, 1973 (2 of 1974 ) or in any other law for the time being in force, be released on bail with or without surety but he shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him into asso iation with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice.
(2) When such person having been arrested is not released on bail under sub- section (1) by the officer in charge of the police station, such officer shall cause him to be kept only in an observation home in the prescribed manner until he can be brought efore a Board.
(3) When such person is not released on bail under sub- section (1) by the Board it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regard ng him as may be specified in the order.

Trial of Juvenile Prisoners where there is no Juvenile Justice Board ( Sessions Judge)

Special Procedure for Juvenile Justice Board
(i) Proceedings cannot be initiated on a complaint from a citizen or the Police.
(ii) The hearing is informal & strictly confidential
(iii) Juvenile offender while under detention is kept in separate observation home
(iv) Young offender may be reprimanded on security or bond for good behaviour
(v) Trial of juvenile in conflict with law is usually conducted by lady magistrate specially deputed for the purpose.
(vi) Procedure informal – hence no right to engage the services of a lawyer.
(vii) No appeal lies against the order of acquittal made by the JJB S59(2) appeal however shall lie against an order of the Board holding the juvenile guilty of an offence to the sessions court within a period of 30 days whose decision shall be final & there shall be no second appeal.

Treatment of Juvenile’s in Conflict with Law & Children in Need of Care & Protection
Observation Homes – Juveniles who need only a short term custody during inquiry or trial are kept in an observation home. Also used for juveniles in conflict with law about whom inquiry is pending or who are awaiting trial or removal to an appropriate Home or Borstal.

Children’s Homes for the treatment of neglected children for whom a short term regulatory protective care is necessary but a long term residential training is not necessary.

Special Homes – for custody of delinquent juveniles. Basic amenities, medical care, vocational training available to delinquent juveniles in these homes.

Certified schools:- To provide training to those juveniles who are unfit for release on probation. (period of term min 6 months, maximum 3 years).

Separate Schools & Hostels for Children of Prostitutes

Borstals (established Borstal village in England, Rochester Prison converted to reformatory for boys)
English Borstal Institution meant for age (15 to 21 years)


1.Raghbir v. State of Haryana, AIR 1981 SC 2037
Whether a person under 16 years of age and accused of an offence under Section 302, Penal Code can get the benefit of the Haryana Children Act, 1974.

Appellant along with three others was convicted of the offence of murder and sentenced to imprisonment for life by the Sessions Judge. The appeal was dismissed by the High Court. The appellant then filed an application for special leave to appeal under Article 136 of the Constitution. Leave was granted confined to the question of the applicability of the Act to his case. It is also not disputed that the appellant was less than 16 years at the time he first appeared before the trial Court. He was thus a 'child' within the meaning of that term under Clause (d) of Section 2 of the Act.

Counsel appearing for the appellant, submitted that in view of Section 5 of Criminal P.C. 1973 (hereinafter called ''the Code'), the appellant would get the benefit of the Act; while on the other hand, Mr. Bhagat appearing for the State, relying on Section 27 of the Code submitted that an offence punishable with death or imprisonment for life would not be triable under the Act.

There is a decision of this Court on ' the point in the case of Rohtas v. State of Haryana that held the trial of a child under the provisions of the Act was not barred. In that case, however,)' appears, Section 27 of the Code was not brought to the notice of the Court.

1. The trial of a chid under the provisions of the Haryana Children Act, 1974 for the offence of murder was not barred. The appellant here was a child within the meaning of that term under clause (d) of section 2 of the Act.

2. A perusal of section 22 of the Central Children Act, 1960 (Act LX of 1960) which is in pari materia with section 21 of the Haryana Children Act and other provisions of the State and Central Children Acts shows that the procedure for trial, conviction and sentence under the Children Acts are simple humane and by Courts manned with persons with knowledge of child psychology and child welfare; but not so under the Criminal Procedure Codes of 1898 and 1973. The intention of the State Legislature of Haryana and of the Parliament in enacting the Children Acts was to make provisions for trial of delinquent children and dealing with them in accordance with such procedure so that the delinquent children do not come in contact with accused persons who are not children and but are hardened criminals. The purpose undoubtedly was to reclaim delinquent children and rehabilitate them in such a way that they become useful citizens later in life.

3:1. The purpose of the Haryana Legislature as well as of the Parliament in enacting the Haryana Children Act and the Central Children Act respectively was to give separate treatment to delinquent children in trial, conviction and punishment for offences including offences punishable with death or imprisonment for life

3:2. Section 27 of the Criminal Procedure Code, 1973 is not 'a specific provision to the contrary' within the meaning of section S of the Code the intention of the Parliament was not to exclude the trial of delinquent children for offences punishable with death or imprisonment for life, inasmuch as section 27 does not contain any expression to the effect "notwithstanding anything contained in any Children Act passed by any State Legislature". Parliament certainly was not unaware of the existence of the Haryana Children Act coming into force a month earlier or the Central Children Act coming into force nearly fourteen years earlier. What section 27 contemplates is that a child under the age of 16 years may be tried by a Chief Judicial Magistrate or any court specially empowered under the Children Act, 1960. It is an enabling provision and has not affected the Haryana Children Act in the trial of delinquent children for offences punishable with death or imprisonment for life.

4:1. If there be any conflict between any provisions of the Act and the Criminal Procedure Act, in view of Article 254(1) of the Constitution, the provision of the Haryana Children Act repugnant to any provision of the Criminal Procedure Code will be void to the extent of repugnancy

4:2. Criminal Procedure appears in Item 2 of the Concurrent List of the Seventh Schedule of the Constitution. One of the circumstances under 'which repugnancy between the law made by the State and the law made by the Parliament may result is whether the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable. In the case in hand the relevant provisions of the Criminal Procedure Code and the Haryana Children Act can co-exist.

2. Sanjay Suri v. Delhi Administration, AIR 1988 SC 414

The petitioners, a News Editor and a trainee sub- editor, filed writ petitions in the Supreme Court pointing out features of maladministration within the Central Jail at Tihar relating to juvenile undertrial prisoners and praying for appropriate directions to the respondents. The Court made several orders with reference to juvenile prisoners and undertrials. Under the orders of the Court, the Sessions Judge visited the jail on more than one occasion and made several reports. Pursuant to the Court's directions, certain suggestions were made by the petitioners as well as the respondents.

HELD: 1.1 Those who are in charge of jail administration from bottom to top must generate the proper approach to deal with prisoners and under trials. Whatever may have been the philosophy of punishment in the pas', today the prison house is looked upon as a reformatory and the years spent in jail should be with a view to providing rehabilitation to the prisoner after the sentence is over. Therefore, the Prison House, in case the true purpose is to be achieved, has to provide the proper atmosphere, leadership, environment, situations and circumstances for the re-generation. Members of the staff of the jail from bottom to top must be made cognizant of this responsibility and that awareness must be reflected in their conduct. Judicial notice can be taken of prevailing conditions in the jails.

1.2 The work load of superintendence should be distributed in a graded way and the officers should have direct charge of such divided responsibilities. It is necessary that a large dose of good living should be introduced in the jail life. The jail administration, and, in particular, the Administrator should take into consideration this aspect and try to generate a sense of humanism in these officers and those in the ranks below them so that the prisoners have direct contact with them and benefit by every contact with those officers in getting round to the right approach in life.

1.3 Every magistrate or trial Judge authorised to issue warrants for detention of prisoners should ensure that every warrant authorising detention specified the age of the prisoner to be detained. Judicial mind must be applied in cases where there is doubt about age-not necessarily by a trial-and every warrant must specify the age of the person to be detained. The authorities in the jail throughout India should not accept any warrant of detention as a valid one unless the age of the detenu is shown therein. It shall be open to the jail authorities to refuse to honour a warrant if the age of the person remanded to jail custody is not indicated. It would be lawful for such officers to refer back the warrant to the issuing court for rectifying the defect before it is honoured.

1.4 Due care should be taken to ensure that the juvenile delinquents are not assigned work in the same area where the regular prisoners are made to work. Care should be taken to ensure that there is no scope for their meeting and having contacts.

1.5 Steps should be taken to shift the warders at the end of every three years. This is a principle which has been accepted in the Punjab Jail Manual (Chapter VI, Rule 273).

1.6 The Visitors' Board should consist of cross sections of society; people with good background, social activists, people connected with the news media, lady social workers, jurists, retired public officers from the Judiciary as also the Executive. The Sessions Judge should be given an acknowledged position as a visitor and his visits should not be routine ones. Full care should be taken by him to have a real picture of the defects in the Administration qua the resident prisoners and undertrials.

Monitoring the affairs of a jail is a difficult for this Court. On account of the fact that the Tihar jail is in the Capital of the country and on account of the advantages of publicity available through the media and otherwise, affairs of the jail have received due publicity over the last four years. If a change has to be brought about it has to start from somewhere and Tihar Jail is most suited for that purpose being under the direct management of the Union of India.


3.Pratap Singh v. State of Jharkhand 2005 (1) SCALE 763
CB of SC held that New Juvenile Justice Act of 2000 would be applicable even in those cases which were initiated & pending for offences committed u/Act 1986 provided the offender has not completed 18years of age on 1st April, 2001 i.e. on the date of the coming into force of the Act but the accused already being 17 years of age on 13-6-1989 is not covered by this provision. Held the accused be taken into custody along with others and his bail bond be cancelled.

4. Sudesh Kumar v. State of Uttarakhand (2008) 3 SCC 111
Question related to section 6 of PO Act which provides that when any person u/ 21 years of age is found guilty of having committed an offence punishable with imprisonment (but not imprisonment for life), the court by which the person is found guilty shall not sentence him to imprisonment, unless it is satisfied, that having regard to the character of the offender, it would not be desirable to deal with him u/S3 or S4 & release him on probation. In such case he shall record his reason for not allowing the benefit of release on probation to the offender.

Topic 5 : Punishment and its Justifications

(i) Theories of Punishment –

Punishment – Sir Walter Moberly suggests that punishment presupposes that;-
- what is inflicted is an ill, that is something unpleasant
- Sequel to some act which is disapproved by authority
- There is some correspondence between the punishment and the act which has evoked it.
- Punishment is inflicted, that is imposed by someone’s voluntary act
- Punishment is inflicted upon the criminal, or upon someone who is supposed to be answerable and for his wrong doings.

Retribution – Evil to be returned for evil without any regard to consequences.

Proportionality requires that the level of punishment be scaled relative to the severity of the offending behaviour. However, this does not mean that the punishment has to be equivalent to the crime. A retributive system must punish severe crime more harshly than minor crime, but retributivists differ about how harsh or soft the system should be overall.
Traditionally, philosophers of punishment have contrasted retributivism with utilitarianism. For utilitarians, punishment is forward-looking, justified by a purported ability to achieve future social benefits, such as crime reduction. For retributionists, punishment is backward-looking, justified by the crime that has been committed and carried out to atone for the damage already done

Emanuel Kant observed: Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime."
Kant regards punishment as a matter of justice, and it must be carried out by the state for the sake of the law, not for the sake of the criminal or the victim. He argues that if the guilty are not punished, justice is not done. Further, if justice is not done, then the idea of law itself is undermined.

Two schools of retributive justice – The classical definition embraces the idea that the amount of punishment must be proportionate to the amount of harm caused by the offence. A more recent version advocated by the philosopher Michael Davis dismisses this idea and replaces it with the idea that the amount of punishment must be proportionate to the amount of unfair advantage gained by the wrongdoer. Davis introduced this version of retributive justice in the early 1980s, at a time when retributive justice was making resurgence within the philosophy of law community, perhaps due to the practical failings of reform theory in the previous decades.

Criticisms of retributive theory - Many more jurisdictions following the retributive philosophy, especially in the United States, follow a set tariff, where judges impose a penalty for a crime within the range set by the tariff. As a result, some argue that judges do not have enough discretion to allow for mitigating factors, leading to unjust decisions under certain circumstances. In the case of fines, the financial position of an offender is not taken into account, leading to situations where an unemployed individual and a millionaire could be forced to pay the same fine, creating an unjust situation; either the fine would be too punitive for the unemployed offender, or not large enough to punish the millionaire.[ In some countries, such as Finland, fines are fixed as percentages of the offenders personal income, rather than a certain dollar amount. This allows for the law to remain fair, in that it applies to all citizens equally, yet prevents the wealthy from simply paying to break the law without suffering any substantial punishment.


Deterrence Theory -
Deterrence is the use of punishment as a threat to deter people from offending. Deterrence is often contrasted with retributivism, which holds that punishment is a necessary consequence of a crime and should be calculated based on the gravity of the wrong done.
The concept of deterrence has two key assumptions: the first is that specific punishments imposed on offenders will "deter" or prevent them from committing further crimes; the second is that fear of punishment will prevent others from committing similar crimes

Deterrence can be divided into three separate categories.

Specific deterrence focuses on the individual in question. The aim of these punishments is to discourage the criminal from future criminal acts by instilling an understanding of the consequences.
General or indirect deterrence focuses on general prevention of crime by making examples of specific deviants. The individual actor is not the focus of the attempt at behavioural change, but rather receives punishment in public view in order to deter other individuals from deviance in the future. The argument that deterrence, rather than retribution, is the main justification for punishment is a hallmark of the rational choice theory and can be traced to Cesare Beccaria whose well-known treatise On Crimes and Punishments (1764) condemned torture and the death penalty, and Jeremy Bentham who made two distinct attempts during his life to critique the death penalty.

Incapacitation is considered by some to be a subset of specific deterrence. Incapacitation aims to prevent future crimes not by rehabilitating the individual but rather from taking away his ability to commit such acts. Under this theory, criminals are put in jail not so that they will learn the consequence of their actions but rather so that while there they will be unable to engage in crime.

Not all crime deterrence comes from a criminal justice system. Controversial academic Gary Kleck concludes evidence suggests that private gun ownership and use significantly deter crime, although several academics have since concluded otherwise.

Marginal deterrence is a principle in theory of criminal justice, stating that a more severe crime should be punished harder than a lesser crime, and that a series of crimes should be punished harder than a single crime of the same kind.
Marginal deterrence is intended to deter criminals to limit their criminal acts. Without marginal deterrence, a criminal could benefit from committing additional crimes, or using illegal methods to suppress law enforcement, witnesses or evidence. As an example, if robbery without force gave the same punishment as robbery by murder, a robber could make a rational choice to kill the victims, to evade their testimonies.

Effectivenes:   A study by a Canadian criminologist Paul Gendreau brought together the results of 50 different studies of the deterrent effect of imprisonment involving over 300,000 offenders. The report said: "None of the analyses found imprisonment reduced recidivism. The recidivism rate for offenders who were imprisoned as opposed to given a community sanction was similar. In addition, longer sentences were not associated with reduced recidivism. In fact the opposite was found. Longer sentences were associated with a 3% increase in recidivism. This finding suggests some support for the theory that prison may serve as a ‘school for crime’ for some offenders.

A 2000 study by Uri Gneezy and Aldo Rustichini, A Fine Is a Price, has shown that introducing a fine for a previously unfined behavior may increase, rather than decrease, the unwanted behavior. This happens as the fine replaces a previous set of moral or ethical norms, and if it is low enough, it is going to be easier to overcome than the non-monetary criticism was. In other words, putting a price on something previously not on a market changes its perception drastically, and on occasion it can change it contradictory to what a deterrence theory would predict

Reform (Rehabilitative Sentencing)
Probation – Borstal institutions

Prevention (Incapacitate Sentencing)
 Identify offender or group of offenders who are likely to do such serious harm in the future that special protective measures be taken against them.

Restorative & Reparative Theories
Not theories of punishment, rather their argument is that sentences should move away from punishment of the offender towards restitution & reparation, aimed at restoring the harm done & calculated accordingly.  Restorative theories therefore victim centred. Less resort to custody, with onerous community based sanctions requiring offender to work order to compensate the victims & also contemplating support & counselling for offenders to reintegrate them into the community.

(ii) Kinds of Punishment – with a special emphasis on Capital Punishment.

The general forms of punishment are:
Flogging
Mutilation
Branding
Stoning
Pillory
Fine / Penalty
Forfeiture of Property
Security Bond
Banishment
Penal Servitude
Simple Imprisonment
Solitary confinement
Imprisonment for Life
Death or Capital Punishment
Punishments in Mohammedan Law

Before the Indian Penal Code came into existence, the Mohammedan Criminal Law was applied to both Hindus and Muslims. The following are the various types of Punishments in Mohammedan Law.
Qisas - Victim or his relatives inflict similar pain / punishment to the offender
Diya - Offender can be exempted by paying money to the victim or heir of victim
Hadd - Fixed punishment to various crimes. Judge does not have a say.
Tazeer - Judge has the complete discretion to award punishment to the offender
Siyasat - King, in the interest of public could award punishment to the offender

Types of Punishments according to IPC
Section 53 of the Indian Penal Code, 1860 prescribes five kinds of punishments.

Death Penalty
Life imprisonment
Imprisonment
Rigorous
Simple
Forfeiture of property
Fine

(iii) Probation as a form of Punishment


Readings:
1. Andrew Ashworth, “Sentencing” in Mike Maguire, Rod Morgan, Robert Reiner (ed.), The Oxford Handbook of Criminology (2nd ed. 1994). 108
2. B.B. Pande, “Face to Face with Death sentence: The Supreme Court’s Legal and Constitutional Dilemmas” (1979) 4 SCC 714
3. S.S. Srivastava, “Capital Punishment”, Criminology and Criminal Administration, 89-99 (2nd ed. 2002)
4. Bushan Tilak Kaul, “Criminal Law”, XXXVIII Annual Survey of Indian Law 181-226, 195-20 (2002). 114
5. Lewis Diana, “What is Probation?”, in Robert M. Carter, Leslie & T. Wilkins (ed.), Probation and Parole (1970)

Summary History of Probation

The concept of probation, from the Latin, probatio, "testing," has historical roots in the practice of judicial reprieve. In English common law, prior to the advent of democratic rule, the courts could temporarily suspend the execution of a sentence to allow a criminal defendant to appeal to the monarch for a pardon. Probation first developed in the United States when John Augustus, a Boston cobbler, persuaded a judge in the Boston police court in 1841 to give him custody of a convicted offender, a "drunkard," for a brief period and then helped the man to appear rehabilitated by the time of sentencing. Even earlier, the practice of suspending a sentence was used as early as 1830 in Boston, Massachusetts, and became widespread in U.S. courts, although there was no statutory provision for such a practice. At first, judges, most notably Peter Oxenbridge Thatcher of Boston, used "release on recognizance" or bail and simply refrained from taking any further action. In 1878 the mayor of Boston hired a former police officer, the ironically named "Captain Savage," to become what many recognize as the first official probation officer. By the mid-19th century, however, many Federal Courts were using a judicial reprieve to suspend sentence, and this posed a legal question. In 1916, the United States Supreme Court, in the Killets Decision, held that a Federal Judge (Killets) was without power to suspend a sentence indefinitely. This decision led to the passing of the National Probation Act of 1925, thereby, allowing courts to suspend the imposition of incarceration and place an offender on probation. Probation developed from the efforts of a philanthropist, John Augustus, who looked for ways to rehabilitate the behavior of criminals.

Massachusetts developed the first state-wide probation system in 1880, and by 1920, 21 other states had followed suit. With the passage of the National Probation Act on March 5, 1925, signed by President Calvin Coolidge, the U.S. Federal Probation Service was established. On the state level, pursuant to the Crime Control and Consent Act of 1936, a group of states entered into an agreement wherein they would supervise probationers and parolees who reside in each other's jurisdictions on each other's behalf. Known as the Interstate Compact For the Supervision of Parolees and Probationers, this agreement was originally signed by 25 states in 1937. By 1951, all the states in the United States of America had a working probation system and ratified the Interstate Compact Agreement. In 1959, the new states of Alaska and Hawaii, the Commonwealth of Puerto Rico, and the territories of the Virgin Islands, Guam, and American Samoa ratified the act as well.

Definition of Probation
- Probation as a legal disposition only – Judge McKenzie Cleland :- “Probation is a plan of suspending over offenders the maximum sentence permitted by law” and of allowing them “to determine by their subsequent conduct whether they should lose or retain their liberty… with the full knowledge that further delinquency meant .. Severe punishment.”
- Probation as a measure of leniency – accidental slips (only one author who took this approach)
- Probation as a Punitive Measure – found little acceptance in the literature on probation
- Probation as an Administrative Process
o More than 30% authors have seen admin framework as a major framework of probation. Only few have explained this concept further.
o Dr Philip Parsons – rehabilitation field – research & admin all the more important.
o Jessie Keys in ‘World’s Work’ (1909) – search for the ultimate causes is not the least important work of the Juvenile court
 Boy who had a mania for stealing pocket knives.
- Probation as a Social Case Work Treatment


6. S.C.Raina, Probation, Philosphy, Law and Practice (1996).

7. The Probation of Offenders Act, 1958

Mahatma Gandhi once said, "Hate the crime not the criminal". This means that we need to eliminate crime and eliminating criminals is not the way to do it. While it is true that punishment gives a sense of satisfaction to the victims and to the society in general, it has been observed that in most of the cases punishment, especially imprisonment, does not actually reform the criminal. In most cases, once a person comes out of a prison, he gets back to his old ways of being in conflict with the law. This is true even more with young criminals, whose minds are not fully mature. They get influenced in the wrong way because of their interaction with hardened criminals in jails.

One way to counter this problem is to provide opportunities and guidance to young and first time offenders instead of committing them to jails. The idea behind such treatment is that, normally, human beings do not resort to crime unless they are forced due exceptional circumstances. If we want to reduce crime, we should make sure that chance criminals are given an opportunity to get reformed instead of turning into hardened criminals. This is the aim behind Probation of Offender's Act, 1958. It allows the court to take into account the nature of the crime, the age of the offender, and the circumstances of the crime, and instead of committing the offender to jail, release him under supervision and guidance of a probation officer. This ensures that the offender is integrated back into the society. The act is based on the reformatory approach, which is adopted in many countries of the world. For example, in USA, almost 60% of the offenders are released on probation.

The object of probation has been laid down in the judgment of Justice Horwill in In re B. Titus - S. 562 is intended to be used to prevent young persons from being committed to jail, where they may associate with hardened criminals, who may lead them further along the path of crime, and to help even men of mature years who for the first time may have committed crimes through ignorance or inadvertence or the bad influence of others and who, but for such lapses, might be expected to make good citizens. In such cases, a term of imprisonment may have the very opposite effect to that for which it was intended. Such persons would be sufficiently punished by the shame of having committed a crime and by the mental agony and disgrace that a trial in a criminal court would involve.

It must, however, be kept in mind that reformation does not always work. Some crimes are so abhorrent and some criminals are so unrepentant that it is best to punish them so that the price of committing the crime keeps them from committing it again. For some of them, there is no hope for reform, and it is best to protect the society from them by locking them away for life.

Main Features of the Act / Powers of the court regarding release of certain offenders

Depending on the circumstances of the case, a court may release the person in two ways - release after admonishing the person, which is provided in Section 3, and release on probation of good conduct, which is provided in Section 4. Both are explained below.

Release After Admonishing
Admonishing means to warn or reprimand. In this mode of release, the court scolds the person, and in a way, tries to appeal to the good conscious of the person and releases him. Section 3 says thus:
When any person is found guilty of having committed an offence punishable under Section 379 or Section 380 or Section 381 or Section 404 or Section 420 of the Indian Penal Code or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition.

The conditions required to be released under this section are -
1. The offence must be punishable with imprisonment for less than 2 yrs or with only fine or with both. Or if the offence is punishable under any of the Sections 379, 380, 381, 404, and 420.
2. The offender does not have any prior convictions.

If the above conditions are satisfied, then the court must take into consideration the nature of the crime and the antecedents and character of the offender and if it thinks suitable, it can release the offender after warning.

Release on Probation
As per Section 4, if any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct and in the meantime to keep the peace and be of good behaviour. The section further requires that the offender or his surety has a fixed place of residence or regular occupation in a place where the court exercises jurisdiction.

Also, before making any such order, the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. However, it is not necessary that the court has to act on probation officers report. It can also gather information from other source and on its own analysis.

The court may also require the offender to remain under the supervision of a probation officer during certain period, if it thinks that it is in the interests of the offender and of the public. It can also impose appropriate conditions which might be required for such supervision. In case the court does specify such conditional release, it must require the offender has to enter into a bond, with or without sureties, enumerating the conditions. The conditions may relate to place of residence, abstention from intoxicants, or any other matter as the court thinks appropriate to ensure that the crime is not repeated.

As per Section 5, the Court directing the release of an offender under section 3 or section 4, may, if it thinks fit, make at the same time a further order directing him to pay-
(a) such compensation as the court thinks reasonable for loss or injury caused to any person by the commission of the offence ; and
(b) such costs of the proceedings as the court thinks reasonable.

Offenses in which benefit of probation can and cannot be granted

Section 4, as described above, gives a general direction to the court for deciding when and when not to give the benefit of probation. The words, "if the court is of the opinion" basically give discretionary power to the court in this respect. Section 6, however, tries to impress upon the court to lean in favor of giving benefit in cases of young and immature adults. When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under section 3 or section 4, and if the court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so. For the purpose of satisfying itself whether it would not be desirable to deal under section 3 or section 4, the court shall call for a report from the probation officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender.

Thus, even though no mathematical rule is given, the general intention of the legislature is to give the benefit of probation as much as possible. In Jugal Kishore Prasad vs State of Bihar 1972, the Supreme Court observed that the object of the Probation of Offenders Act, "is in accordance with the present trend in the field of penology, according to which efforts should be made to bring about correction and reformation of the individual offenders and not to resort to retributive justice. Modern criminal jurisprudence recognizes that no one is a born criminal and that a good many crimes are the product of socio-economic milieu."

In absence of a precise formula to determine when and when not the benefit of probation can be given, we have to look at SC court judgments to understand what kind of offenses are eligible for this benefit. SC has accepted the applicability of probation for many kinds of offences. For example, in Isherdas v. State of Punjab, the Supreme Court held that the Probation of Offenders Act was applicable to the offenses under the Prevention of Food Adulteration Act, 1954.

In case of Mohamad Aziz Mohamed Nasir vs State Of Maharashtra, AIR 1976, the appellant was below 21 years of age. The appellant was at one time a well known child film actor and won several awards for acting in films. Subsequently he fell in bad company and took to evil ways. SC held that even if the point relating to Section 6 is not raised before the High Court, the court was bound to take notice of the provisions of the section and give its benefit to the applicant. It further held that Section 6 lays down an injunction not to impose a sentence of imprisonment on a reason who is under 21 years of' age and if found guilty of having committed an offence punishable with imprisonment other the that for if unless it is satisfied that it would not be desirable to deal with him under Section 3 or Section 4. This inhibition on the power of the court to impose a sentence of imprisonment applies not only at the state of trial but also at the stage of High Court or any other court when the case comes before it in appeal or revision.

However, in Uttam Singh vs Delhi Administration, 1971, the appellant was of 36 yrs of age and was caught with 3 sets of playing cards and obscene photographs. SC refused to allow him the benefit of release on probation having regards to his age and nature of crime.

There have been cases where the court has let of even rapists on probation and there have been cases where even minor offenses have not been given the benefit of probation. It can be said that this benefit is given on case to case basis after looking at the peculiarities of the case. It is not possible to categorize the offences in this respect.

Procedure when the offender breaches the conditions of Probation
As per Section 9, if the court which passes an order under section 4 in respect of an offender or any court which could have dealt with the offender in respect of his original offence has reason to believe, on the report of a probation officer or otherwise, that the offender has failed to observe any of the conditions of the bond or bonds entered into by him, it may issue a warrant for his arrest or may, if it thinks fit, issue a summons to him and his sureties, if any, requiring him or them to attend before it at such time as may be specified in the summons.

The court before which an offender is so brought or appears may either remand him to custody until the case is concluded or it may grant him bail, with or without surety, to appear on the date which it may fix for hearing.

If the court, after hearing the case, is satisfied that the offender has failed to observe any of the conditions of the bond or bonds entered into by him, it may forthwith
(a) sentence him for the original offence; or
(b) where the failure is for the first time, then, without prejudice to the continuance in force of the bond, impose upon him a penalty not exceeding fifty rupees.
(4) If a penalty imposed under clause (b) of sub-section (3) is not paid within such period as the court may fix, the court may sentence the offender for the original offence.

It is important to note that the sentencing in respect of which the probation is given is merely suspended when the offender is released on probation under Section 4. Thus, if any condition of the probation is violated, the court may sentence the offender for the original offence without conducting a fresh trial.

Probation Officer and his duties
As per Section 13, a probation officer under this Act shall be - (a) a person appointed to be a probation officer by the State Government or recognised as such by the State. Government ; or (b) a person provided for this purpose by a society recognized in this behalf by the State Government; or (c) in any exceptional case, any other person who, in the opinion of the court, is fit to act as a probation officer in the special circumstances of the case.

Section 14 - Duties of probation officers
A probation officer shall, subject to such conditions and restrictions, as may be prescribed,-
(a) inquire, in accordance with any directions of a court, into the circumstances or home surroundings of any person accused of an offence with a view to assist the court in determining the most suitable method of dealing with him and submit reports to the court.
(b) supervise probationers and other persons placed under his supervision and, where necessary, endeavor to find them suitable employment ;
(c) advise and assist offenders in the payment of compensation or costs ordered by the court ;
(d) advise and assist, in such cases and in such manner as may be prescribed, persons who have been released under section 4; and
(e) perform such other duties as may be prescribed.

Section 360 of CrPC and Section 4 of Probation of Offenders Act
As per Section 19, in the states where Probation of Offenders Act is enacted, Section 360 of CrPC shall cease to apply. Thus, it is clear that Section 4 of Probation of Offenders Act has overriding effect.

Section 360 of CrPC - Order to release on probation of good conduct or after admonition :--(1)When any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, Character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct, and in the meantime to keep the peace and be of good behavior.
(Source: http://hanumant.com/CrPC-Unit1314-ProbationOfOffendersAct.html)

Death Penalty:

Lehna Case - In rarest of rare cases when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances:-
(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.
(2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis--vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in
the course for betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of 'bride burning' or 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
(5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis--vis whom the murderer is in a dominating position, or a public figure generally loved and
respected by the community.

Ruli Ram v State of Haryana

According to the prosecution, two young boys were thrown into a pond by the accused- appellants. The boys were taken to the hospital, where they were declared dead. Accused allegedly committed the crime because of refusal by the family members of the deceased to cast their votes in favour of the candidate supported by the accused, in the Panchayat election. Accused- appellants were tried for offence u/s 302 IPC. Trial Court convicted the accused-appellants under Section 304 Part-II IPC. High Court allowed the State appeal and convicted the accused under Section 302 IPC. Hence this appeal. It was contended for the appellants that evidence were not credible; that witnesses were partisan and biased; that no case under Section 302 IPC was made out; and that the maximum sentence, as awarded, was highly disproportionate since one of the accused was aged 80 years. On behalf of the State, it was contended that Section 304 Part-II IPC could not be applied when none of the exceptions to Section 300 cover the instant case.

The trial Court and the High Court analysed the evidence in detail and have held it to be plausible and acceptable and that it suffers from no infirmity. It has been noted that in a faction ridden village, independent witnesses are difficult to get. Enmity is a double sword. While it can be basis for false implication, it can also be basis for the crime. The Court has to weigh the evidence carefully and if after doing so, holds the evidence to be acceptable; the accused cannot take the plea that it should not be acted upon. When a plea of false implication is advanced by the accused, foundation for the same has to be established.

1.2. The academic distinction between `murder' and `culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. [432-C, D] 1.3. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not, in the ordinary way of nature, be sufficient to cause death of a person in normal health or condition. It is noteworthy that the `intention to cause death' is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to Section 300.

1.4. In clause (3) of Section 300, instead of the words `likely to cause death' occurring in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature" have been used. The distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and, if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. It is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word `likely' in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words "bodily injury......sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature. The test laid down by Virsa Singh's case for the applicability of clause "Thirdly" is now ingrained in the legal system and has become part of the rule of law. [433-H; 434-A, B, C, D; 435-G] Rajwant and Anr. v. State of Kerala, AIR (1966) SC 1874 and Virsa Singh v. State of Punjab, AIR (1958) SC 465, relied on. 1.5. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of the instant case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons-being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury. [436-C, D] State of Andhra Pradesh v. Rayavarapu Punnayya and Anr, [1976] 4 SCC 382 and Abdul Waheed Khan @ Waheed and Ors. v. State of Andhra Pradesh, JT 2002 (6) SC 274, referred to. 1.6. In the instant case, trial Court noted several factors to conclude that the intention of the accused was not to commit murder, but to create some disturbances at the polling station in order to divert attention of the crowd collected, so that the booth capturing would be facilitated. No injuries were caused to the deceased before they were thrown in the pond, and there was no attempt to even strangulate them. However, the accused- appellants could be attributed the knowledge that the natural and proper consequence of their acts was likely to cause death. The High Court did not indicate any basis to hold that the case was covered by Section 302 IPC. There was only a casual observation that the murders were committed intentionally because relatives of the deceased did not agree to vote in favour of the accused-appellant's candidate. There is absolutely no discussion to fortify the conclusion. The inevitable result is that the proper provision to be applied is Section 304 Part-II IPC. [437-A, B, C] 2.1. 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 should 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. [437-F, G, H; 438-A] 2.2. Proportion between crime and punishment is a goal respected in principle, and inspite of errant notions, it remains a strong influence in the determination of sentences. But in fact quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences. Therefore, the sentence of rigorous imprisonment, as awarded by the trial Court, is quite appropriate.


5. Bishnu Deo Shaw v. State of West Bengal, AIR 1979 SC 964

The appellant was convicted by the Additional Session's Judge Alipore for the murder of his son and sentenced to death. The reason given by the Sessions Judge was that the murder was "cruel and brutal" and that the facts showed the "grim determination" of the accused to kill the deceased. The Sessions Judge made no reference to the motive of the accused for the commission of the murder. The High Court while confirming the conviction and sentence observed that the accused had previously murdered his wife, suspecting her infidelity that the sentence of imprisonment imposed on him for the murder of his wife had no sobering effect, that he suspected that the deceased in the present case was not his own son and so he murdered him without any mercy or remorse, and that he, therefore deserved no mercy.

HELD: 1. There were no "special reasons" justifying the imposition of the death penalty.
(a) The Sessions Judge was wrong in imposing the sentence of death without even a reference to the reason why the appellant committed the murder.
(b) The observation of the High Court that the appellant deserved no mercy because he showed no mercy smacks very much of punishment by way of retribution.
(c) From the evidence, it is clear that the appellant was a moody person who had for years been brooding over the suspected infidelity of his wife and the injury of having a son foisted on him. The mere use of adjectives like "cruel and brutal" does not supply the special reasons contemplated by section 354(3) of the Criminal Procedure Code, 1973.

2. "Special reasons" are reasons which are special with reference to the offender, with reference to constitutional and legislative directives and with reference to the times, that is, with reference to contemporary ideas in the fields of criminology and connected sciences. Special reasons are those which lead inevitably to the conclusion that the offender is beyond redemption, having due regard to his personality and proclivity, to the legislative 356
policy of reformation of the offender and to the advances made in the methods of treatment etc. Section 354(3) of the 1973 Code has narrowed the discretion of sentence for murder. Death sentence is ordinarily ruled out and can only be imposed for "Special reasons". Judges are left with the task of discovering "special reasons". [368 D-E, 370E-F] (a) Apart from Section 354(3), there is another provision in the Code which also uses the significant expression "Special reasons". It is Section 361, Section 360 of the 1973 Code re-enacts, in substance, Section 562 of the 1898 Code and provides for the release on probation of good conduct or after admonition any person not under twenty-one years of age who is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or any person under twenty-one years of age or any woman who is convicted of an offence not punishable with death or imprisonment for life, if no previous offence is proved against the offender, and if it appears to the Court having regard to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct or after admonition. If the Court refrains from dealing with an offender under Section 360 or under the provisions of the Probation of Offenders Act, or any other law for the treatment, training, or rehabilitation of youthful offenders, where the Court could have done, so, Section 361, which is a new provision in the 1973 Code makes it mandatory for the Court to record in its judgment the "Special reasons" for not doing so. Section 361 thus casts a duty upon the Court to apply the provisions of Section wherever it is possible to do so and, to state "special reasons" if it does not do so. [368F-H, 369A-B]
(b) In the context of Section 360, the "Special reasons" contemplated by Section 361 must be such as to compel the Court to hold that it is impossible to reform and rehabilitate the offenders, after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the legislature that reformation and rehabilitation of offenders, and not mere deterrence are now among the foremost objects of the administration of criminal justice in our country. Section 361 and Section 354(3) have both entered the Statute Book at the same time and they are part of the emerging picture of acceptance by the Indian Parliament of the new trends in criminology. Therefore, the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors. [369B-E]
3. Criminal justice is not a computer machine. It deals with complex human problems and diverse human beings. It deals with persons who are otherwise like the rest of us, who work and play, who laugh and mourn, who love and hate, who yearn for affection and approval, as all of us do, who think learn and forget. Like the rest of us they too are the creatures of circumstances. Heredity, environment, home neighbourhood, upbringing, school, friends, associates, even casual acquaintences, the books that one reads, newspapers, radio and TV, the economics of the household, the oppor- 357
tunities provided by circumstances and the calamatics resulting therefrom the success and failure of one's undertakings the affairs of the heart, ambitions and frustrations, the ideas and ideologies of the time, these and several other ordinary and extra-ordinary incidents of life contribute to a person's personality and influence his conduct. Differently shaped and differently circumstanced individuals react differently in given situations. A judge has to balance the personality of the offender with the circumstances the situations and the reactions and choose the appropriate sentence to be imposed. A judge must try to answer a myriad question such as was the offence committed without premeditation or was it after due deliberation ? What was the motive for the crime ? Was it for gain ? Was it the outcome of a village feud ? Was it the result of a petty drunken, street brawl, or a domestic bickering between a helpless husband and a helpless wife ? Was it due to sexual jealousy ? Was the murder committed under some, stress, emotional or otherwise ? What is the background of the offender ? What is his social and economic status ? What is the level of his education or intelligence ? Do his actions betray a particularly callous indifference towards the welfare of society, or on the other hand, do they show a great concern for humanity and are in fact inspired by such concern ? Is the offender so perpetually and constitutionally at war with society that there is no hope of ever reclaiming him from being a menace to society ? Or is he a person who is patently amenable to reform ? [369 E- H, 370 A-C]
(a) Judges in India have the discretion to impose or not to impose the death penalty. It is one of the great burdens which judges in this country have to carry. In the past, the reasons which weighed in the matter of awarding or not awarding the sentence of death varied widely and there was certainly room for complaint that there was unequal application of the law in the matter of imposition of the sentence of death. [367C-D]
(b) There cannot be any higher basic human right than the right to life and there can not be anything more offensive to human dignity than a violation of that right by the infliction of the death penalty. It is in the light of the right to life as a basic concept of human dignity, in the context of the unproven efficacy of the death penalty as a deterrent and in the background of modern theories of criminology based upon progress in the fields of science, medicine, psychiatry and sociology and in the setting of the march of the movement for abolition of Capital Punishment, that Judges in India are required to decide which sentence to impose in a case of murder, death or imprisonment for life? [366D, 367B-C]
Furman v. Georgia, 33 Lawyers Edn. 2nd Series 346 referred to.
(c) Realising that discretion, even judicial, must proceed along perceptive lines, but, conscious, all the same that such discretion cannot be reduced to formulate or put into pigeon-holes, this Court has been at great pain ever since Ediga Annamma to point out the path along which to proceed. In the latest pronouncement of this Court in Rajendra Prasad v. State of Uttar Pradesh, several relevant principles have been enunciated to guide the exercise of discretion in making the choice between the penalties of death and life-imprisonment. [367F-G]
Ediga Annamma v. State of A.P. [1974] S.C.C. 443, Rajendra Prasad v. State of U.P. [1979] 3 SCR 78 referred to.
358
4. Among the several theories of punishment the reformative theory is irrelevant where death is the punishment since life and not death can reform; the preventive theory is unimportant where the choice is between death and life imprisonment as in India; the retributive theory is incongruous in an era of enlightenment and inadequate as a theory since it does not attempt to justify punishment by any beneficial results either to the society or to the person punished. Equally, the denunciatory theory is as inadequate as the retributive theory since it does not justify punishment by its results. [359H, 360A-B, 361B]
5. (a) The very nature of the penalty of death makes it imperative that at every suitable opportunity life imprisonment should be preferred to the death penalty. [359E]
Furman v. Georgia, 33 L.ed. 2nd Edn. 346; relied on. (b) All studies made on the subject whether capital punishment is the most desirable and most effective instrument for protecting the community from violent crime than other penalties say, a sentence of imprisonment for long terms, have led to the conclusion that the death penalty is inconsequential as a deterrent. (c) There is no positive indication that the death penalty has been deterrent. In other words, the efficacy of the death penalty as a deterrent is unproven.
6. The death penalty, rather than deterring murder, actually deters the proper administration of criminal justice.
(a) There is the absolute finality and irrevocability of the death penalty. Human justice can never be infallible. The most conscientious judge is no proof against any mistakes. Cases are unknown where innocent persons have been hanged in India and elsewhere.
(b) Some Judges and Jurists have an abhorrence of the death penalty that they would rather find a guilty person not guilty than send even a guilty person to the gallows. The refusal of juries to convict persons of murder because of the death penalty is a well known phenomenon throughout the world. A perusal of some of the judgments of the Superior Courts in India dealing with cases where Trial Courts have imposed sentence of death reveals the same reluctance to convict because the result would otherwise be to confirm the sentence of death. Thus a guilty person is prevented from conviction by a possibility that a death penalty may otherwise be the result. [365C-D] (c) Yet a more 'grievious injury' which the death penalty inflicts on the administration of Criminal Justice is that it rejects reformation and rehabilitation of offenders as among the most important objectives of Criminal Justice, though the conscience of the World Community speaking through the voices of the Legislature of several countries of the world has accepted reformation and rehabilitation as among the basic purposes of Criminal Justice. Death penalty is the brooding giant in the part of reform and treatment of Crime and Criminals, 'inequitably sabotaging any social or institutional programme to reformation'. It is the 'fifth column' in the administration of criminal justice.
(d) There is also the compelling class complexion of the death penalty. A tragic by-product of social and economic deprivation is that the 'have-nots' 359
in every society always have been subject to greater pressure to commit crimes and to fewer constraints than their more affluent fellow citizens. So, the burden of capital punishment falls more frequently upon the ignorant, the improverished and the underprivilege.

6. Bachan Singh v. State of Punjab, AIR 1980 SC 898

Bachan Singh, the appellant in this case, was tried and convicted and sentenced by the Sessions Judge to death under section 302, Indian Penal Code for the murders of Desa Singh, Durga Bai and Veeran Bai. The High Court confirmed his death sentence and dismissed his appeal. He appealed to the Supreme Court by special leave. A Bench of the Supreme Court consisting of Sarkaria and Kailasam, JJ. heard the appeal and directed the records of the case to be submitted to the Hon'ble Chief Justice, for constituting a larger Bench to resolve the question of constitutional validity of death penalty for murder provided in section 302 of the Indian Penal Code, and the sentencing procedure embodied in sub-section (3) of section 354 of the Cr.P.C., 1973.

Issue: Constitutional validity of death penalty for murder.

Judgment : Article 21 clearly brings out the implication that the Founding Fathers recognized the right of the State to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law. There are several other indications also in the Constitution which show that the Constitution makers were fully cognizant of the existence of death penalty for murder and certain other offences in the Indian Penal Code. Entries 1 and 2 in the Concurrent List of the Seventh Schedule specifically refer to the Indian Penal Code and the CrPC as in force at the commencement of the Constitution. Article 72(1)(c) specifically invests the President with power to suspend, remit or commute the sentence of any person convicted of any offence, and also "in all cases where the sentence is a sentence of death". Likewise, under Article 161, the Governor of a State has been given power to suspend, remit or commute, inter alia, the sentence of death of any person convicted of murder or other capital offence relating to a matter to which the executive power of the State extends. Article 134, in terms, gives a right of appeal to the Supreme Court to a person who, on appeal, is sentenced to death by the High Court, after reversal of his acquittal by the trial court. Under the successive Criminal Procedure Codes which have been in force for about 100 years, a sentence of death is to be carried out by hanging. In view of the aforesaid constitutional postulates, by no stretch of imagination can it be said that death penalty under section 302, Indian Penal Code, either per se or because of its execution by hanging, constitutes, an unreasonable, cruel or unusual punishment. By reason of the same constitutional postulates, it cannot be said that the framers of the Constitution considered death sentence for murder or the prescribed traditional mode of its execution as a degrading punishment which would defile "the dignity of the individual" within the contemplation of the Preamble to the Constitution. On parity of reasoning, it cannot be said that death penalty for the offence of murder violates the Basic Structure of the Constitution.

Sections 432 and 433 of the Code of 1973 continue sections 401 and 402 of the Code of 1898, with necessary modifications which brings them in tune with Articles 72 and 161 of the Constitution. Section 432 invests the "appropriate Government" as defined in sub-section (7) of that section with power to suspend or remit sentences. Section 433 confers on the appropriate Government power to commute sentence, without the consent of the person sentenced. Under clause (a) of the section, the appropriate Government may commute a sentence of death, for any other punishment provided by the Indian Penal Code.

Section 354 (3) mandates the Court convicting a person for an offence punishable with death or, in the alternative with imprisonment for life or imprisonment for a term of years, not to impose the sentence of death on that person unless there are "special reasons" to be recorded for such sentence. The expression "special reasons" in the context of this provision, obviously means "exceptional reasons" founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal.
The only effect is that the application of those principles is now to be guided by the paramount beacons of legislative policy discernible from sections 354(3) and 235(2) of the Code of 1973, namely: (1) The extreme penalty can be inflicted only in gravest cases of extreme culpability; (2) In making choice of the sentence, in addition to the circumstances of the offence, due regard must be paid to the circumstances of the offender also.
That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate water-tight compartments. In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that "special reasons" can legitimately be said to exist.
Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India, show that in the past Courts have inflicted the extreme penalty with extreme infrequency-a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter.

Held: Section 302 of the Indian Penal Code insofar as it provides for the death sentence as also section 354(3) of the Code of Criminal Procedure, 1973 is constitutionally valid.
Exercise of discretion under section 354(3), Cr.P.C. should be in exceptional and grave circumstances and imposition of death sentence should only be in rarest of rare cases.


7. Macchi Singh v. State of Punjab, AIR 1983 SC 957

A feud between two families has resulted in tragic consequences. Seventeen lives were lost in the course of a series of five incidents which occurred in quick succession in five different villages, situated in the vicinity of each other, in Punjab, on the night between August 12 and August 13, 1977. The seventeen persons who lost their lives and the three who sustained injuries included men, women and children related to one Amar Singh and his sister Piaro Bai. In this connection one Machhi Singh and his eleven companions, close relatives and associates were prosecuted in five sessions cases, each pertaining to the concerned village in which the killings took place. Machhi Singh was the common accused at each trial. The composition of his co- accused differed number-wise and identity-wise from trial to trial At the conclusion of the series of trials, the accused found guilty were convicted under appropriate provisions. Four of them were awarded death sentence, whereas sentence of imprisonment for life was imposed on nine of them. They were also convicted for different offences and appropriate punishment was inflicted on each of them in that behalf. The order of conviction and sentence gave rise to five murder references and fourteen appeals by the convicts before the High Court of Punjab and Haryana. Having lost their appeals and the death sentences having been con-firmed, the appellants have come in appeal by way of special leave. The Court considered the following:
(a) What normal guidelines are to be followed so as to identify the "rarest of rare cases" formula for imposing death sentence, as spelled out in Bachan Singh v. State of Punjab, [1980] 2 SCR 864; (b) Reliability of eye witnesses to a crime under light shed by the lantern in a village to identify connect an accused to the crime; (c) invocation of the doctrine of benefit of doubt;
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and (d) the effect of non-summoning the magistrate for recording dying declaration.
Allowing the Criminal Appeals Nos. 79/81 and 86/81 and dismissing the other appeals, the Court
^
HELD : 1:1. The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'. Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. [433 A-E]
Bachan Singh v. State of Punjab [1980] 2 S.C.C. 684, relied on,
1;2. In order to apply these guidelines inter-alia the following questions may be asked and answers : (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and called for a death sentence ? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender. [433 E- G]
1:3. If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed here in above, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so. [433 G-H]
2. The villagers living in villages where electricity has not reached as yet, get accustomed to seeing things in the light shed by the lantern. Their eyesight gets conditioned and becomes accustomed to the situation. Their powers of seeing are therefore not diminished by the circumstance that the incident is witnessed in the light shed by the lantern and not electric light. Paucity of light cannot, therefore, improbablise the commission of the crime by the accused. [417 C-D]
3:1. When a piece of evidence introduced and relied upon by the prosecution itself creates a doubt (a reasonable doubt) as regards the complicity of the accused, even if there are no infirmities in other evidence, the doctrine of benefit of doubt must be invoked by the court in favour of the accused.

In the instant case, though there is no infirmity in the evidence of PW Amar Singh and PW Mohindo to connect Mohinder Singh to the crime, the fact that the second rifle used in the commission of crime having been originally issued to one Kashmir Singh does not satisfactorily establish the link.

3:2. When the deceased was making good recovery and having regard to the condition of his health, no danger to his life was apprehended and therefore in that fact situation, the magistrate was not summoned, no fault can legitimately be found on this score for getting the benefit of doubt in favour of the accused. Any statement made to the police by such deceased can be subsequently allowed to be treated as dying declaration and evidence scanned.

8. Allauddin Mian v. State of Bihar, AIR 1989 SC 1456

Accused Nos. 1 to 6, constituting an unlawful assembly the common intention of which Was to kill Baharan Mian, came to his house armed with deadly weapons. Baharan Mian, appre- hending trouble, ran inside Co arm himself but his wife prevented him from coming out again. At that time, Baharan Mian's two infant daughters, Sahana Khatoon aged about seven years and Chand Tara aged about seven months, were playing in the 'dalan' of his house. Failing in their object to kill Baharan Mlan, accused No. 1 gave farsa blows on the head, abdomen and left thumb of Sahana Khatoon causing serious injuries, and accused No. 2 gave one farsa blow on the head of infant Chand Tara. As a result of these injuries, Sahana Khatoon died the same day while Chand Tara died after 28 days.
Accused Nos.1 and 2 were charged under sections 302, 452 and 148 I.P.C., whereas accused Nos. 3 to 6 were sought to be held vicariously liable under section 302/149 I.P.C. Accused Nos. 3 and 4 were further charged under sections 447 and 148, I.P.C. and accused Nos. 5 & 6 were charged under sections 447 and 147, I.P.C. The Trial Court convicted accused Nos. 1 and 2 on all the three counts and awarded the sentence of death to both of them for the commission of the offence punishable under section 302, I.P.C. Accused Nos. 3 and 4 were convicted under sections 302/149, 447 and 148, I.P.C. and for the offence under section 302/149, each of them was directed to suffer imprison-
499
ment for life. Accused Nos. 5 and 6 were convicted under sections 302/149, 447 and 147, I.P.C. For the offence under sections 302/149, I.P.C., they were sentenced to undergo imprisonment for life.
The High Court dismissed the appeal of accused Nos. 1 and 2 and, while accepting the reference, confirmed the sentence of death awarded to them for the murder of the two infant girls. The conviction of the remaining four accused under section 302/149 was, however, altered to sections 326/149 and the sentence of imprisonment for life given to each of them was substituted by a sentence of rigorous imprisonment for seven years. Their convictions and sen- tences on the other counts were, however, maintained: Before this Court it was contended on behalf of the appellants that (1) the evidence adduced by the prosecution was not reliable; (2) Even on the facts found proved by the courts below, accused Nos. 1 to 6 could not be held guilty of murder with the aid of section 149, I.P.C. as the kill- ings of the two girls was outside the common object of the unlawful assembly; (3) the facts of the case did not warrant a death penalty in the case of accused Nos. 1 and 2, more so because the procedural requirement of section 235(2) of the Cr. P.C. was not followed in letter and spirit; and (4) section 302, I.P.C., and section 354(3), Cr.P.C., insofar as they permit the imposition of the death penalty were viola- tive of Articles 14, 19 and 21 of the Constitution of India. While partly allowing the appeals by converting the sentence of death in the case of accused nos. 1 and 2 to imprisonment for life under section 302, I.P.C., and setting aside the conviction of accused nos. 3 to 6 under section 326/149 I.P.C., the Court,
HELD: (1) There is no substance in the contention that the prosecution evidence is unreliable and should not be acted upon for confirming the conviction of the accused persons. [508B-C]
(2) If the prosecution did not examine some persons who were admittedly present at the scene of occurrence, on learning that they were won over, it cannot be said that the prosecution was unfair to the accused persons. The non- examination of these persons cannot affect the probative value of the evidence of other prosecution witnesses. [508F] (3) Section 149. I.P.C., creates a. specific offence. Since this section imposes a constructive penal liability, it must be strictly construed. [509G]
500
(4) It is not the intention of the legislature in enact- ing section 149 to render every member of an unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to invoke section 149 it must be shown that the incriminating act was done to accom- plish the common object of the unlawful assembly. Even if an act incidental to the common object is committed to accomplish the common object of the unlawful assembly, it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. If the mem- bers of the assembly knew or were aware of the likelihood of a particular offence being committed in. prosecution of the common object they would be liable for the same under sec- tion 149. I.P.C.
(5) What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was one which the members knew to be likely to be committed. There must be a nexus between the common object and the offence committed, and if it is found that the same was committed to accomplish the common object, every member of the assembly will become liable for the same. [509H; 510A-B]
(6) In the instant case, the common object of the unlaw- ful assembly, as alleged in the charge, was to kill Baharan Mian. When accused Nos. 1 and 2 realised that Baharan Mian was beyond their reach. they. frustrated at their failure to accomplish their mission, wielded their weapons on the innocent girls, which was no part of the common object of the unlawful assembly. For accomplishing their common object it was not necessary to kill the two girls who were not a hinderance to accused Nos. 1 and 2 accomplishing their common object. Accused Nos. 3 to 6 cannot, therefore, be convicted for the injuries caused to the two minor girls by accused Nos. 1 and 2, with the aid of section 149. [511A-B] (7) Section 302, I.P.C, casts a heavy duty on the Court to choose between death and imprisonment for life. When the Court is called upon to choose between the convict's cry 'I want to live' and the prosecutor's demand 'he deserves to die', it goes without saying that the Court must show a high degree of concern and sensitiveness in the choice of sen- tence. [511D-E]
(8) In our justice delivery system several difficult decisions are left to the presiding officer, sometimes without providing the scales or the weights for the same. In cases of murder, however, since the choice
501
is between capital punishment and life imprisonment, the legislature has provided a guideline in the form of sub- section (3) of section 354 of the Code of Criminal Proce- dure, 1973. [511E-F]
(9) When the law casts a duty on the Judge to state reasons it follows that he is under a legal obligation to explain his choice of the sentence. It may seem trite to say so but the existence of the 'special reason clause' in the above provision implies that the Court can in fit cases impose the extreme penalty of death which negatives the contention that there never can be a valid reason to visit an offender with the death penalty, no matter how cruel, gruesome or shocking the crime may be. [512A-C] (10) Where a sentence of severity is imposed, it is imperative that the Judge should indicate the basis upon which he considers a sentence of that magnitude justified. Unless there are special reasons, special to the facts of the particular case, which can be cataloged as justifying a severe punishment, the Judge would not award the death sentence. If a Judge finds that he is unable to explain with reasonable accuracy the basis for selecting the higher of the two sentences, his choice should fail on the lower sentence. [512D-E]
(11) The choice of the sentence has to be made after following the procedure set out in sub-section (2) of sec- tion 235 of the Code. Since the provision is intended to give the accused an opportunity to place before the Court all the relevant material having a bearing on the question of sentence, there can be no doubt that the provision is salutary and must be strictly followed. [513D, H; 514A] (12) The requirement of hearing the accused is intended to satisfy the rule of natural justice. In the case of life or death, the presiding officer must show a high degree of concern for the statutory right of the accused and should not treat it as a mere formality to be crossed before making the choice of the sentence. If the choice is made without giving the accused an effective and real opportunity to place his antecedents, social and economic background, mitigating and extenuating circumstances, etc. before the Court, the Court's decision on the sentence would be vulner- able. [514C]
(13) A sentencing decision taken without following the requirements of sub-section (2) of section 235 of the Code in letter and spirit may have to be replaced by an appropri- ate order. In the instant case, the Trial Court actually treated it as a mere formality as is evident from 502
the fact that it recorded the finding of guilt on 31st March, 1987, and on the same day before the accused could absorb and overcome the shock of conviction they were asked if they had anything to say on the question of sentence. Immediately thereafter the decision imposing the death penalty on the two accused was pronounced. [514B, E] (14) As a general rule, the Trial Courts should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender. [514F-G]
(15) In the instant case, the Trial Court did not attach sufficient importance to the mandatory requirement of sub- section (2) of section 235 of the Code. The High Court also had before it only the scanty material placed before the Sessions Judge when it confirmed the death penalty. Absence of particulars of ancedents of accused, their socio economic conditions, the impact of their crime on the community, etc. makes the choice of punishment difficult. [514G-H] (16) It is necessary that the maximum sentence pre- scribed by law should be reserved for 'the rarest of rare' cases which are of an exceptional nature. Sentences of severity are imposed t9 reflect the seriousness of the crime, to promote respect for the law, to provide just punishment for the offence, to afford adequate deterrent to criminal conduct and to protect the community from further similar conduct. [515G]
(17) In the instant case, unfortunately the material for choice of sentence is scanty. The motive for the crime is obscure, the one stated. namely, the quarrel between two infants of both sides, does not seem to be correct. The killings were not for gain. The change shows that the target was Baharan Mian, the father, and not the two infants. The killing of the two infants was not in the contemplation of any of the accused. Both the girls were the victims of the offenders' ire resulting from frustration at the escape of their target. There is nothing so uncommon about the crime as to make the case an exceptional one. The mere fact that infants are killed, without more, is not sufficient to bring the case within the category of 'the rarest of rare' cases.

9. Mohd. Chaman v. State (2001) 2 SCC 28

Accused had committed rape on a minor girl Ritu aged 1n a half years when her parents & two sisters were away from home. As a result of this brutal and ghastly act, the child suffered several injuries and died. The trial Court convicted the accused under Sections 302 & 376 IPC and sentenced him to death which was confirmed by the High Court. On appeal, the Supreme Court held that, when the murder is committed so as to arouse intense and extreme indignation of the community, these should be construed as aggravating circumstances for imposition of death sentence. In the instant case, the crime committed is undoubtedly serious and heinous and reveals a dirty and perverted mind of a person who has no control over his carnal desires. But taking guidelines laid down in Bachhan Singh case, the case is one which deserves humanist approach and therefore, capital sentence imposed against the appellant is commuted to imprisonment for life.

10. Lehna v. State of Harayana (2002) 3 SCC 76

Probation:

13.Jogi Nayak v. State, AIR 1965 Orissa 106

15 yr old boy found guilty of robbery u/S 394 IPC. Accused removed jewellery from the body of a young girl after inflicting grievous injuries on her. Sessions court  1 yr RI, did not grant probation as offence was punishable with Life Imprisonment.
HC upheld conviction reduced sentence for period already undergone and directed his release.

Issue whether benefit of probation can be given to the accused in this case which is punishable with Life Imprisonment or RI for 10 years.

Contended for appellant that sentences provided for S394 being alternative in nature it cannot be said to be an offence punishable with life imprisonment, thus no bar to court to exercise jurisdiction u/S 4 or 6 of the PO Act & S360 CrP.

Ruled that construction of such provision as “Death or imprisonment for life” and “Imprisonment for life or imprisonment with fine came up in many cases (State v Sheo Shankar, Chetti v State of MP, Sarkar v Jalam Singh) and it was held to mean that they are not in the nature of alternative sentences. They must be read disjunctively and not conjunctively (or jointly).

Even under S6 where the offence committed is not punishable with life imprisonment the court may deny probation, but it has to record its reasons for doing so. Objective of S4 & S6 PO Act is to not give probation to those found guilty of serious offences. Seriousness of the offence can be judged from the punishment provided for it.

14. Abdul Qayum v. State of Bihar, AIR 1972 SC 214

Appellant aged 16 years pick pocketed Rs. 56/-. Despite Probation officer’s favourable report he was sentenced to 6 months RI by the Trial Court – On appeal to SC – SC directed TC to place him under probation.

16. Dalbir Singh v. State of Haryana (2000) 5 SCC 82
Appellant was driving a bus which belonged to Haryana Roadways. It was on 4.7.1994 at 6.15 P.M. that the cyclist was knocked down in front of the main gate of the Boards of school Education at Bhiwani. The cyclist was just going out of the office of the Board where he was working. The bus, after hitting him down, dragged him for some distance. He was crushed to death. The driver was convicted under Section 279 and Section 304A of the IPC, and was sentenced to imprisonment for three months and one year respectively under the above two counts. He made a two-fold plea in the trial court. One was that he was not the person who drove the vehicle. The other was that the accident happened due to the negligence of the cyclist. Both the pleas were repelled by the trial court and the Sessions Court. On the positive side both the said courts found that the incident happened within the town area whereat offices are situated and hence the need to be greatly circumspect while driving motor vehicles was not adhered to by the appellant and such carelessness resulted in the instantaneous death of a young man who was crushed under the wheels of the vehicle. The revision filed by the appellant before the High Court was dismissed in limine.

Decision of the Hon’ble Apex Court
Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304A IPC as attracting the benevolent provisions of Section 4 of the PO Act. While considering the quantum of sentence, to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly that even if he is convicted he would be dealt with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of vehicle he cannot escape from jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles.

Thus, bestowing our serious consideration on the arguments addressed by the learned Counsel for the appellant we express our inability to lean to the benevolent provision to Section 4 of the PO Act. The appeal is accordingly dismissed.

17. M.C.D. v. State of Delhi (2005) 4 SCC 605

Held that HC before extending the benefit of S4 PO Act to the accused did not call for a report from the authorities to check upon the conduct of the accused as required (by S4 PO Act), therefore his release on Probation without such report is wholly illegal. Moreover the accused also concealed the fact that he was convicted on an earlier occasion as well.

18. Chhanni v. State of U.P. (2006) 5 SCC 396

Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the Probation Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for Probation Officers in assisting the Courts in relation to supervision and other matters while Probation Act does make such a provision. While Section 12 of the Probation Act states that the person found guilty of an offence and dealt with under Section 3 or 4 of the Probation Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes with such significant differences could not be intended to co-exist at the same time in the same area. Such co-existence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the Probation Act as applicable at the same time in a given area cannot be gathered from the provisions of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8(1) of the General Clauses Act, where the provisions of the Act have been brought into force, the provisions of Section 360 of the Code are wholly inapplicable.

Topic 6 : Female Criminality and victimity
(i) Female Criminality as an aspect of Marginal Criminality
(ii) Female Victimity and Victimology
Readings:
S.S. Srivastava, “Female Criminality and Victimity in Indian Context: Women and Crime”, Criminology and Criminal Administration 89-99 (2nd ed., 2002) 205

Topic 7: Restitutive Justice
(i) The Concept of Restitutive Justice
(ii) Legal Position in India

Readings:
1. Lucia Zender, “Victims”, in Mike Maguire, Rod Morgan, Robert Reiner (ed.), The Oxford Handbook of Criminology, (2nd ed. 1997)
2. S.P. Singh Makkar and Paul C. Friday (ed,), Global Perspectives in Victimology 147-163 (1993)

3. S.C. Raina, “Rights of Victims”, in Renu Ghosh (ed.), Branded (2001)

Early history of victimology
Law in own hands – to reduce violence & feuding amongst clans – concept of compensation – Method formulized in Code of Hammurabi.

Scope of Victimology
Beginning in 1940s & by late 1960s developed into an emerging science, significantly boosting the victims status.

Separovic – “Victims are persons threatened, injured or destroyed by an act or omission of another man (man, structure, organization or institution). Suffering may be caused by another structure where people are also involved.”

Separovic therefore interprets crime as the violation of basic human rights contained in the general universal concept of human rights as accepted by the int’l community with reference to right to life, health, security & well being.

Parallel development of thought in North America expressed by legal professional Elias Neumann (in 1984).

Indian Experience
(i) Constitutional Mandate – Art 21, Art 38
(ii) Other legal safeguards [Ss 250, 357, 358 CrPC, S5 of PO Act, Ss 140 -144 MV Act]
a. Ss 250 CrPC deals with compensation instituted upon a complaint or information given to a police officer or magistrate on false or frivolous accusations. (Does not include complaint or info given by police officer regarding a cognizable offence.)Conditions
i. case instituted on a complain or on information given to a police officer or magistrate
ii. Person against whom complain is filed or info given must be accused of an offence
iii. Offence must be try-able by a magistrate
iv. Magistrate discharges or acquits the accused
v. No reasonable ground for making the accusation
b. S357 – object to provide compensation to victims from fines from sentences on accused.
c. S358 – Compensation to those arrested w/o any grounds
d. S5 PO Act – Court can order released offender to pay compensation & cost
e. Ss 140 – 144 – application for recovery of damages to be filed within 6 months of date of accident.
f. No legal right as such of the victims to claim compensation. Courts too don’t have much wide powers to deal with plight of victims. Two reasons why courts are reluctant – 1st think offenders not capable of paying compensation – 2ndly hesitant to keep files open indefinitely therefore award other sentences.
g. 41st Law Comm report expressed its view about the rigid attitude of the courts & rare use of this provision, similarly fines under CrPC are part of the penalty, whereas under PO Act it has no penal element. U/S 357 CrPC no order of compensation can be passed if fine cannot be imposed.
(iii) Protection of Human Rights Act, 1993 & Victimology – 5 decades after UNDHR 1948 Parliament enacted the Protection of Human Rights Act 1993. functions of NHRC detailed in S12 of the act.
(iv) Indian Society of Victimology estb 1992– drafted Victims( Criminal Injuries) Right to Assistance Bill, 1996 providing assistance to victims of criminal injuries & abuse of power.
(v) Jurisprudential approach
a. Compensatory technique for victims of crime
i. Hari Shankar v Sukhbir Singh – SC directed all TC to exercise power of compensation u/S 357 CrPC
ii. Bodhisatva Gautam v Subhra Chakraborty – Respondent filed a complaint against the appellant for developing sexual relationships with her on false assurance of marriage – Apex court held that it had jurisdiction to pass orders compelling the accused to pay maintenance to victim during pendency of proceedings. Case was unique because compensation was awarded even when accused was not convicted. Further emphasized when compensation can be awarded in the final stage (in a rape case) there is no reason to deny the court the right to award interim compensation.
iii. Dr Jacob George v St of Kerala – Apex court enhanced fine amount from Rs. 1000/- to Rs. 1 Lakh/- to be paid to deceased’s minor son.
iv. St of Punjab v Ajiab Singh – Compensation by accused even after acquittal as he had promised.
v. Delhi Domestic Working Women’s Forum v Union of India – SC held that jurisdiction to pay compensation shall be treated as part of the overall jurisdiction of the courts trying the offense of rape, which is an offence against basic human rights & FR of liberty & life.
vi. In Inder Sinha v State of Punjab – Violation of Human rights by Punjab Police – SC ordered State to pay compensation as a token for failure to enforce the law & order and protect its citizens.
b. Victims of abuse of power & constitutional remedy – Art 21 – SC used its power u/A32 to fill the lacunae in the field of compensation for Police excesses.
i. In Rudul Shah v St of Bihar granted compensation of Rs 35000/- against the lawless act of Bihar Govt that kept victim in illegal detention. Observed that Article 21 would be denuded of its significant content if the power of the court was limited to passing orders of release from illegal detention.
ii. PUDR v St of Bihar –21 people died in unwarranted police firing - Working principle of compensation- accused not absolved by paying compensation but as a working principle and for convenience & with a view to rehabilitate the dependents of the deceased such compensation is paid.
iii. Nilabati Behra v St of Orissa – case of custodial death – SC held In case of violation of FR by State’s instrumentalities the court can direct the State to pay compensation to the victim or his heirs by way of ‘monetary amends’ and redressal. Principle of sovereign immunity will be inapplicable in such cases. Court referred to Art 9(5) of Int’l Convention on Civil & Political Rights 1966 & held that the said provision indicates enforceable right to compensation is not alien to the concept of a guaranteed right.
(vi) New trends & Future action plan – So far within criminology therefore being understood only as victims of crime. Broader picture includes other victims as well. Role of Media – further victimizing victims – Such reports  adverse effects on the victims of crime.

19. State of Punjab v. Ajaib Singh, AIR 1995 SC 975
Bench; RM Sahai J.

Facts: Section 100 First and Secondly-Exercise of right of private defence resulting in death-Two policemen killed in altercation between police officers on authority to check trucks-Whether accused entitled to use of firearm where he was attacked by dandas-Held, whether assault such as to cause reasonable apprehension that death would otherwise be the consequence depends on facts of each case-In the facts of the case, held, interference with acquittal by High Court not warranted-Dependants of deceased to be compensated from Rs. 5 lakhs which accused had offered out of remorse

Held:
1. It shall depend on the facts of each case whether the assault was such as could cause reasonable apprehension that death would otherwise be the consequence of such assault. The respondent had nine injuries. They have been found not to be self-inflicted. He was attacked by the deceased and his companions. The trial judge found that there was no previous enmity. The submission that the respondent was not entitled to use firearm as he was attacked with dandas only cannot be accepted. That is not what is provided by clauses (I) and (II) of Section 100 IPC. [505-D-C]

2. The finding of the High Court is neither perverse nor infirm nor palpably erroneous. While a court hearing appeal against acquittal is not prevented from examining and reappreciating the evidence on the record, the duty of such court is to satisfy itself whether the view taken by the acquitting court was possible view or not. The prosecution case has not been found authentic even by the trial judge being solely based on failure to establish that the respondent had not exceeded his right of self- defence. The order of acquittal passed by the High Court upheld.

3. Speedy trial, early hearing and quick disposal are sine qua non of criminal jurisprudence. Keeping an accused in custody for a day more than necessary is constitutionally impermissible and violative of human dignity. The overcrowded court dockets, the phenomenal rise of public interest litigation, duty to ensure enforcement of fundamental rights undoubtedly keeps this court under stress and strain. But that cannot be an excuse for keeping the sword of Damocles hanging on the accused for an indefinite period of time. If the courts have been rendered helpless and the exasperating delay is threatening to eat away the system then the government may consider either to increase the strength to clear the backlog or devise some mechanism by which criminal appeals pending for more than reasonable time in higher courts should stand disposed of.

4. The manner in which the government not only reinstated, but promoted the officer when the appeal by it against his acquittal was pending in this Court is disapproved. The government would have been well advised to adopt the sealed cover procedure, a firmly established and well known practice in service law. Murder by a police officer is provocative. The confidence of the common man is shaken when a person who is standing trial in appeal is promoted.

5. The respondent shall deposit Rs. 5 lakhs within a period of one month as was offered on his behalf. Out of this amount, Rs. 3,50,000 will be paid to the dependants of ASI Gurnam Singh, and Rs. 1,50,000 to the dependants of constable Paramjit Singh.

20. Dr. Jacob George v. State of Kerala (1994) 3 SCC 430
Bench: Hansaria J.

After the enactment of the Medical Termination of Pregnancy Act, 1971, the provisions of the Penal Code relating to miscarriage have become Subservient to this Act because of the non obstante clause in Section 3, which permits abortion/miscarriage by a registered practitioner under certain Circumstances. This permission can be granted on three grounds:
(i) Health when there is danger to the life or risk to the physical or mental health of the woman;
(ii) humanitarian such as when pregnancy arises from a sex crime like rape or intercourse with a lunatic woman;
(iii) eugenic where there is substantial risk that the child, if born, would suffer from deformities and diseases.

The allegations which led the High Court to find the appellant guilty under Section 314 were these. Deceased Thankamani was married to one Sathyan. After the marriage they lived as husband and wife for about one and half years and a son was born out of the wedlock. About six months hereafter, Sathyan reportedly deserted Thankamani but then there was reconciliation three months prior to the death of Thankamani who became pregnant again. For reasons not quite known, Thankamani told her mother hat she would desire to go for abortion since she did not want another child. The mother, who was examined as PW 2 in the trial, sent for PW 1 her brother-in-law and told him about the predicament of Thankamani. PW 1 happened to know the clinic (hospital) being run by the appellant in Nilambur where abortions were being done.

10. Prosecution case is that on 14-1-1987, PW 1 and Thankamani went to the clinic and the matter was discussed with the appellant. Thereafter, she was admitted and the appellant agreed to abort her on payment of Rs 600 of which Rs 500 was paid immediately undertaking to pay the balance afterwards, which amount was paid on 15-1-1987. On that day Thankamani was taken to operation theatre at about 10 p.m. and at midnight the appellant told that the operation was successful. PW 1 however found Thankamani unconscious. She regained consciousness at about 5 a.m. on 16th and asked for some water. PW 1 instead brought a cup of tea which Thankamani could drink with difficulty and started shivering. On information given to appellant he came with a nurse and on examination found Thankamani in sinking condition. Froth came out from her mouth and life ebbed out of her. What happened thereafter is not material, except that after sometime police was informed which set it into motion resulting in charge-sheeting of the appellant under various sections including Section 314. In the trial which commenced, 16 witnesses were examined, apart from bringing many documents on record. The learned trial court, however, held that charges had not been established beyond reasonable doubt and therefore acquitted the appellant.

11. On appeal being preferred by the State and suo motu cognizance being taken by the High Court, the acquittal order has been set aside and the appellant has been convicted and sentenced as aforesaid, after refusing to give the benefit of Probation of Offenders Act as prayed for. Hence these appeals under Article 136 of the Constitution.

12. A perusal of the impugned judgment of the High Court shows that it has placed reliance principally on the evidence of PW 1, who is the cousin (sic) of Thankamani. As he had played a vital role in the entire episode and is a near relation of Thankamani, we find no reason to disagree with the High Court in having placed reliance on his evidence. The defence case that it was PW 1 who sought to abort the pregnancy by crude method i.e. insertion of stick and rod into the uterus was rightly disbelieved by the High Court as if the condition of Thankamani became serious because of such a crude method and Thankamani was brought to hospital for some emergent treatment, as is the defence case, the appellant, being the head of the clinic, must have informed police in view of the medico-legal significance, as pointed out by the High Court. The failure of the appellant to do so definitely speaks volumes against the veracity of the defence suggestion, as pointed out by the High Court.

13. The submission of Shri Jain that evidence of PW 1 is the only evidence to find the appellant guilty inasmuch as PWs 3 and 4 had turned hostile, and so there was virtually nothing to corroborate the evidence of PW 1, is not quite correct. As to PWs 3 and 4 turning hostile it was an expected somersault because they were the nurses of the clinic and discretion must have been taken by them to the better part of valour. But then, PW 5, who too was an employee in the clinic did admit that Thankamani had been admitted in the clinic on 14th and not on 15th night as was the defence case. The postmortem examination conducted by PW 11, according to whom the death should have taken place at about 36 hours prior to his examination which was at about 3.00 p.m. on 17th, would also corroborate the evidence of PW 1 as to the date and time of the death of Thankamani. What was found in autopsy would clearly show that the uterus got perforated because of employing scientific gadgets by the appellant a homeopath, which shows that he had absolutely no training to handle the gadgets. The High Court has rightly described the exercise of the appellant in this regard as "daring, crude and criminal". We therefore, agree with the High Court that an innocent life was sacrificed at the altar of a quack.

14. We would, therefore, uphold the conviction as awarded by the High Court, as the case is apparently not covered by any exception mentioned in the aforenoted Pregnancy Termination Act. It may be pointed out that the High Court did not accept the case of the prosecution insofar as the offence under Section 201 of the Indian Penal Code, or for that matter, under Section 342, is concerned.

15. This takes us to the question of sentence. The High Court has awarded sentence of 4 years and a fine of Rs 5000, of which a sum of Rs 4000 was made payable to the children of the deceased towards compensation for the loss of their mother. Shri Jain has urged that the appellant has undergone imprisonment for about two months, and the sentence may be reduced to the period already undergone. Indeed the learned counsel has further prayed in this regard to grant the benefit of Probation of Offenders Act and referred us to a decision of Madras High Court in V. Manickam Pillai v. State' where the High Court had granted such a benefit. We are, however, of the opinion that keeping in view the nature of the offence and character of the appellant, he does not deserve the benefit of probation. If a homeopath takes to his head to operate a pregnant lady and perforate her uterus by trying to abort, he does not deserve the benefit of probation. It would have been a different matter if a trained surgeon while carrying out the operation in question with the consent of the lady, as in the present case, would have committed some mistake of judgment resulting in death of the patient. The present case is poles apart.

16. We, therefore, refuse to give benefit of the aforesaid Act to the appellant. We may, however, put on record that Shri Jain advanced this submission as granting of probation would have removed the disqualification attached to conviction because of what has been stated in Section 12 of the aforesaid Act. We do not, however think that if the appellant is required to be given this protection and if his practice were to suffer because of the unwanted act undertaken by him, let it suffer, as it is required to suffer.
17. Let us now deal with Shri Jain's submission that the substantive period of imprisonment may be reduced to the one already undergone which is of about 2 months. To decide whether this contention merits acceptance, we have to inform ourselves as to why a punishment is required to be given for an offence of criminal nature. The purpose which punishment achieves or is required to achieve are four in number. First, retribution: i.e. taking of eye for eye or tooth for tooth. The object behind this is to protect the society from the depredations of dangerous persons; and so, if somebody takes an eye of another, his eye is taken in vengeance. This form of protection may not receive general approval of the society in our present state of education and understanding of human psychology. In any case, so far as the matter at hand is concerned, retribution cannot have full play, because the sentence provided by Section 314 is imprisonment of either description for a term which may extend to ten years where the miscarriage has been caused with the consent of the woman as is the case at hand. So death penalty is not provided. The retributive part of sentencing object is adequately taken care of by the adverse effect which the conviction would have on the practice of the appellant.

18. The other purpose of sentence is preventive. We are sure that the sentence of imprisonment already undergone would be an eye-opener to the appellant and he would definitely not repeat the illegal act of the type at hand.

19. Deterrence is another object which punishment is required to achieve. Incarceration of about two months undergone by the appellant and upholding of his conviction by us which is likely to affect the practice adversely, would or should deter others to desist them from indulging in an illegal act like the one at band.

20. Reformation is also an expected outcome of undergoing sentence. We do think that two months' sojourn of the appellant behind the iron bars and stone walls must have brought home to him the need of his changing the type of practice he had been doing as a homeopath. The reformative aspect of punishment has achieved its purpose, according to us, by keeping the appellant inside the prison boundaries for about two months having enabled him to know during this period the trauma which one suffers in jail, and so the appellant is expected to take care to see that in future he does not indulge in such an act which would find him in prison.

21. Section 314 has not visualised the sentence of imprisonment only, but permits imposition of fine also. The High Court has imposed a fine of Rs 5000. According to us, however, the fine is required to be enhanced considerably. We have taken this view, inter alia, because of what has been provided in Section 357 of the Code of Criminal Procedure which has a message of its own in this regard. It was spelt out by this Court in Hari Singh v. Sukhbir Singh2 in which Shetty, J. speaking for a two-Judge Bench stated that the power of imposing fine is intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well as reconciling the victim with the offender. It is to some extent a constructive approach to crimes and a step forward in a criminal justice System. It is because of this that it was recommended that all criminal courts should exercise this power liberally so as to meet the ends of justice, by cautioning that the amount of compensation to be awarded must be reasonable.

22. What is reasonable has to depend upon the facts and circumstances of each case. Let us see what should be the quantum of fine to be imposed in the present case. We are concerned here with the death of a woman deserted by a husband who wanted to abort. We understand that she had a son born to her earlier and that son must have become a destitute with no one to look after. The appellant, on the other hand seems to have had a roaring practice as would appear, inter alia, from the photographs of his clinic put on record. The building is an RCC one and is three-storeyed and presents a good look.

23. If a child has to be nursed in these days and nursed reasonably, a sum of Rs 1000 per month would definitely be necessary. We, therefore, think that the fine to be imposed should be of Rs one lakh, and so, we enhance the fine from Rs 5000 as awarded by the High Court to a sum of Rs one lakh. We grant six months' time to the appellant for depositing this amount, as prayed by Shri Jain. On this amount being deposited with the Registry of this Court, steps would be taken to deposit the same in a nationalised bank in the name of the son of the deceased after ascertaining the same from appropriate authority. The bank would allow the guardian of the aforesaid son to withdraw the interest on the aforesaid amount till the son becomes major. On the son becoming major, it would be for him to decide as how to use the money and the bank would therefore act in accordance with the decision taken by the son.
24. Before closing, we may state that this judgment of ours may not be understood to have expressed any opinion on the right of Thankamani or for that matter of any woman of this country to go for abortion, as this question has not arisen directly in this case. We are not expressing any opinion whether such a right can be read in Article 21 of the Constitution; and if so, to what extent.

25. The result is that the appeals are disposed of by upholding the conviction of the appellant. The sentence awarded by the High Court is modified by reducing the substantive sentence of imprisonment to the one already undergone and by enhancing the fine to a sum of Rs one lakh to be deposited and dealt with as stated above. If the fine as enhanced by us would not be paid within six months from today, the sentence as awarded by the High Court would get revived and the appellant would undergo the remaining part of imprisonment. To enable the High Court to monitor the matter, the appellant would inform the High Court also about the fact of his depositing the sum of Rs one lakh if and when he would do so. The High court would wait for a period of six months from today to see whether the aforesaid amount has been deposited.

21. Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988
Constitution - right to life - Article 21 of Constitution of India - whether right to life extends to foreign citizens - whether Government of India can be made vicariously liable to compensate for offence of rape committed by it's employees - foreign citizens are entitled to protection under Article 21 - offence of rape is violation of fundamental right to life - constitutional liability to pay compensation arises where rape is committed with foreign national by employees of Government abusing their authority.

The only question argued before us was that the Railways would not be liable to pay compensation to Smt. Hanuffa Khatoon who was a foreigner and was not an Indian national. It is also contended that commission of the offence by the person concerned would not make the Railway or the Union of India liable to pay compensation to the victim of the offence. It is contended that since it was the individual act of those persons, they alone would be prosecuted and on being found guilty would be punished and may also be liable to pay fine or compensation, but having regard to the facts of this case, the Railways, or, for that matter, the Union of India would not even be vicariously liable. It is also contended that for claiming damages for the offence perpetrated on Smt. Hanuffa Khatoon, the remedy lay in the domain of Private Law and not under Public Law and, therefore, no compensation could have been legally awarded by the High Court in a proceeding under Article 226 of the Constitution and, that too, at the instance of a practising advocate who, in no way, was concerned or connected with the victim.

Smt. Hanuffa Khatoon should have approached the civil court for damages and the matter should not have been considered in a petition under Article 226 of the Constitution, cannot be accepted. Where public functionaries are involved and the matter relates to the violation of Fundamental Rights or the enforcement of public duties, the remedy would still be available under the Public Law notwithstanding that a suit could be filed for damages under Private Law.
In the instant case, it is not a mere matter of violation of an ordinary right of a person but the violation of Fundamental Rights which is involved. Smt. Hanuffa Khatoon was a victim of rape. This Court in Bodhisatwa vs. Ms. Subdhra Chakroborty (1996) 1 SCC 490 has held "rape" as an offence which is violative of the Fundamental Right of a person guaranteed under Article 21 of the Constitution. The
Court observed as under:
"Rape is a crime not only against the person of a woman, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. Rape is therefore the most hated crime. It is a crime against basic human rights and is violative of the victims most cherished right, namely, right to life which includes right to live with human dignity contained in Article 21."

Rejecting, therefore, the contention of the learned counsel for the appellants that the petition under Public Law was not maintainable, we now proceed to his next contention relating to the locus standi of respondent, Mrs. Chandrima Das, in filing the petition.

The main contention of the learned counsel for the appellants is that Mrs. Chandrima Das was only a practising advocate of the Calcutta High Court and was, in no way, connected or related to the victim, Smt. Hanuffa Khatoon and, therefore, she could not have filed a petition under Article 226 for damages or compensation being awarded to Smt. Hanuffa Khatoon on account of the rape committed on her.
This contention is based on a misconception. Learned counsel for the appellants is under the impression that the petition filed before the Calcutta High Court was only a petition for damages or compensation for Smt. Hanuffa Khatoon. As a matter of fact, the reliefs which were claimed in the petition included the relief for compensation. But many other reliefs as, for example, relief for eradicating anti-social and criminal activities of various kinds at Howrah Railway Station were also claimed. The true nature of the petition, therefore, was that of a petition filed in public interest.
The existence of a legal right, no doubt, is the foundation for a petition under Article 226 and a bare interest, may be of a minimum nature, may give locus standi to a person to file a Writ Petition, but the concept of "Locus Standi" has undergone a sea change, as we shall presently notice. In Dr. Satyanarayana Sinha vs. S. Lal & Co. Pvt. Ltd., AIR 1973 SC 2720 = (1973) 2 SCC 696, it was held that the foundation for exercising jurisdiction under Article 32 or Article 226 is ordinarily the personal or individual right of the petitioner himself. In writs like Habeas Corpus and Quo Warranto, the rule has been relaxed and modified.

SP Gupta v UoI - If by illegal state action, the independence of judiciary is impaired – lawyers would certainly be interested in challenging the constitutionality or legality of such action – thus the practicing advocates (appellants) have the locus standi to challenge the circular of Law Ministry affecting the terms and conditions and transfer of HC judges.

In State of Rajasthan vs. Mst. Vidhyawati AIR 1962 SC 933, it was held that the Govt. will be vicariously liable for the tortious act of its employees. This was a case where a claim for damages was made by the heirs of a person who died in an accident caused by the negligence of the driver of a Govt. vehicle.

The theory of Sovereign power which was propounded in Kasturi Lal's case has yielded to new theories and is no longer available in a welfare State. It may be pointed out that functions of the Govt. in a welfare State are manifold, all of which cannot be said to be the activities relating to exercise of Sovereign powers. The functions of the State not only relate to the defence of the country or the administration of justice, but they extend to many other spheres as, for example, education, commercial, social, economic, political and even marital. These activities cannot be said to be related to Sovereign power.

Running of Railways is a commercial activity. Establishing Yatri Niwas at various Railway Stations to provide lodging and boarding facilities to passengers on payment of charges is a part of the commercial activity of the Union of India and this activity cannot be equated with the exercise of Sovereign power. The employees of the Union of India who are deputed to run the Railways and to manage the establishment, including the Railway Stations and Yatri Niwas, are essential components of the Govt. machinery which carries on the commercial activity. If any of such employees commits an act of tort, the Union Govt., of which they are the employees, can, subject to other legal requirements being satisfied, be held vicariously liable in damages to the person wronged by those employees. Kasturi Lal's decision, therefore, cannot be pressed in aid. Moreover, we are dealing with this case under Public Law domain and not in a suit instituted under Private Law domain against persons who, utilising their official position, got a room in the Yatri Niwas booked in their own name where the act complained of was committed.
No other point was raised before us. The appeal having no merit is dismissed with the observation that the amount of compensation shall be made over to the High Commissioner for Bangladesh in India for payment to the victim, Smt. Hanuffa Khatoon. The payment to the High Commissioner shall be made within three months. There will be no order as to costs.

22. Rachhpal Singh v. State of Punjab, AIR 2002 SC 2710
Civil dispute – fight among two feuding groups (with sharp metal weapons & guns) – TC death sentence + 2 lac fine each (total 4 lac fine) HC reduced sentence from death to life imprisonment & ordered to pay compensation of Rs 2 Lac each to the victim’s family. SC reduced the fine amount to Rs 1 Lach each (total 2 lakh) observed that HC did not have sufficient material before hand to assess the paying capacity of the accused in this case.

Topic 8: Indian Police and Prison System
(i) Reforms in Police System (Prakash Singh v UoI)
(ii) Reforms in Prison System (Rama Murthy v State of Karnataka)

23. Prakash Singh v. Union of India (2006) 8 SCC 1
Bench: Y.K. Sabharwal , C.K. Thakker  & P.K. Balasubramanyan JJ.

Far reaching changes since India Police Act, 1861 – absence of any comprehensive review @national level of the Police system–GoI on 15th Nov 1977 appointed a National Police Commission – fresh examination of the role & performance of the police both as a law enforcing agency & as an institution to protect the rights of the citizens enshrined in the Constitution.

1st Report Feb 1979 dealt with the modalities for inquiry into complaints of police misconduct in a manner which will carry credibility & satisfaction to the public
In 2nd Report Aug 1979 noticed that crux of police reform is to secure professional independence for the police to function truly & efficiently as an integral agent of the law of the land & at the same time, to enable the Govt to oversee the police performance in conformity to the law.

8th & final report in May 1981 – certain basic reforms for effective functioning  of the police to enable it to promote the dynamic role of law & to render impartial service to the people where recommended & a draft new Police Act incorporating the recommendations was annexed as an appendix.

All the Commissions and Committees above noted, have broadly come to the same conclusion on the issue of urgent need for police reforms. There is convergence of views on the need to have (a) State Security Commission at State level; (b) transparent procedure for the appointment of Police Chief and the desirability of giving him a minimum fixed tenure; (c) separation of investigation work from law and order; and (d) a new Police Act which should reflect the democratic aspirations of the people.

The question, however, is whether this Court should further wait for Governments to take suitable steps for police reforms. The answer has to be in the negative.
Having regard to (i) the gravity of the problem; (ii) the urgent need for preservation and strengthening of Rule of Law; (iii) pendency of even this petition for last over ten years; (iv) the fact that various Commissions and Committees have made recommendations on similar lines for introducing reforms in the police set-up in the country; and (v) total uncertainty as to when police reforms would be introduced, we think that there cannot be any further wait, and the stage has come for issue of appropriate directions for immediate compliance so as to be operative till such time a new model Police Act is prepared by the Central Government and/or the State Governments pass the requisite legislations. It may further be noted that the quality of Criminal Justice System in the country, to a large extent, depends upon the working of the police force. Thus, having regard to the larger public interest, it is absolutely necessary to issue the requisite directions.


In Vineet Narain & Ors. v. Union of India & Anr. [(1998) 1 SCC 226], this Court noticed the urgent need for the State Governments to set up the requisite mechanism and directed the Central Government to pursue the matter of police reforms with the State Governments and ensure the setting up of a mechanism for selection/appointment, tenure, transfer and posting of not merely the Chief of the State Police but also all police officers of the rank of Superintendents of Police and above. The Court expressed its shock that in some States the tenure of a Superintendent of Police is for a few months and transfers are made for whimsical reasons which has not only demoralizing effect on the police force but is also alien to the envisaged constitutional machinery. It was observed that apart from demoralizing the police force, it has also the adverse effect of politicizing the personnel and, therefore, it is essential that prompt measures are taken by the Central Government.


(1) State Security Commission – State Govt directed to form state security commission recommendations of which will be binding on the state govt. 3 options given to State Govt. Watch dog body to ensure State Police acts according to the laws of the land & Constitution of the country.


NHRC Ribero Committee Sorabjee Committee
1 CM/HM Minister i/c Police Minister i/c Police(ex officio chairperson)
2 Lokayukta or in his absence Retd HC J. to be nominated by CJI or a member of the St HRC Leader of Opposition Leader of Opposition
3 Sitting or Retd Judge nominated by CJ HC Sitting or Retd Judge nominated by CJ HC Chief Secretary
4 Chief Secretary Chief Secretary DGP (ex officio secretary)
5 Leader of Opposition in Lower House 3 non-political citizens of proven merit & integrity 5 independent members
6 DGP as ex officio secretary DGP as Secretary

(2) Selection & Minimum tenure of DGP – Selection from amongst the 3 Senior most officers empanelled for promotion to that rank by the UPSC on the basis of their length of service, very good  record & range of experience for heading the Police force. – Minimum tenure of 2 years irrespective of date of superannuation. However maybe relived of his responsibilities by the State Govt acting in consultation with the State Security Commission consequent upon any action taken against him under the All India Service(Discipline & Appeal) Rules or following his conviction in a court of law in a criminal case or in a case of corruption, or if he is otherwise incapacitated from discharging his duties.

(3) Selection & Minimum tenure of IGP & other officers – Police officers on operational duties like IGP incharge Zone, DIG of Police in-charge Range, SP in-charge district. 2 years. Removal as in (2) for DGP. Above subject to promotion & retirement.

(4) Separation of Investigation – Investigating police separated from law & order police to ensure speedier investigation, better expertise & improved rapport with the people. However full coordination between the two to be ensured. Separation to start with maybe effected in towns/urban areas population > =10 Lakh gradually extended to small towns as well.

(5) Police Establishment Board – transfers, postings, promotions & other service related matters of officers of & below the rank of Deputy Superintendent of Police. Departmental body comprising DGP & 4 other senior officers of the Dept. State Govt may interfere with the decision of the board in exceptional circumstances only after recording its reasons for doing so. Board to make appropriate recommendation for transfer & posting of officers of and above the rank of Superintendent of Police, and the Government is expected to give due weight to these recommendations and shall normally accept it. It shall also function as a forum of appeal for disposing of representations from officers of the rank of Superintendent of Police and above regarding their promotion/transfer/disciplinary proceedings or their being subjected to illegal or irregular orders and generally reviewing the functioning of the police in the State.

(6) Police Complaints Authority - There shall be a Police Complaints Authority at the district level to look into complaints against police officers of and up to the rank of Deputy Superintendent of Police. Similarly, there should be another Police Complaints Authority at the State level to look into complaints against officers of the rank of Superintendent of Police and above. The district level Authority may be headed by a retired District Judge while the State level Authority may be headed by a retired Judge of the High Court/Supreme Court. The head of the State level Complaints Authority shall be chosen by the State Government out of a panel of names proposed by the Chief Justice; the head of the district level Complaints Authority may also be chosen out of a panel of names proposed by the Chief Justice or a Judge of the High Court nominated by him. These Authorities may be assisted by three to five members depending upon the volume of complaints in different States/districts, and they shall be selected by the State Government from a panel prepared by the State Human Rights Commission/Lok Ayukta/State Public Service Commission. The panel may include members from amongst retired civil servants, police officers or officers from any other department, or from the civil society. They would work whole time for the Authority and would have to be suitably remunerated for the services rendered by them. The Authority may also need the services of regular staff to conduct field inquiries. For this purpose, they may utilize the services of retired investigators from the CID, Intelligence, Vigilance or any other organization. The State level Complaints Authority would take cognizance of only allegations of serious misconduct by the police personnel, which would include incidents involving death, grievous hurt or rape in police custody. The district level Complaints Authority would, apart from above cases, may also inquire into allegations of extortion, land/house grabbing or any incident involving serious abuse of authority. The recommendations of the Complaints Authority, both at the district and State levels, for any action, departmental or criminal, against a delinquent police officer shall be binding on the concerned authority.


(7) National Security Commission - The Central Government shall also set up a National Security Commission at the Union level to prepare a panel for being placed before the appropriate Appointing Authority, for selection and placement of Chiefs of the Central Police Organisations (CPO), who should also be given a minimum tenure of two years. The Commission would also review from time to time measures to upgrade the effectiveness of these forces, improve the service conditions of its personnel, ensure that there is proper coordination between them and that the forces are generally utilized for the purposes they were raised and make recommendations in that behalf. The National Security Commission could be headed by the Union Home Minister and comprise heads of the CPOs and a couple of security experts as members with the Union Home Secretary as its Secretary.

Directions given are to be complied by the Central, State Govt, UTs by December 2006 or before.

24. Rama Murthy v. Karnataka, AIR 1997 SC 1739
Bench: KULDIP SINGH, B.L. HANSARIA, S.B. MAJMUDAR JJ.
Letter from prisoner (Rama Murthy) to Hon’ble CJI – Letter ordered to be treated as a Writ Petition.

Court went into previous decisions regarding prison reforms.

(1) In State of Maharashtra v. Prabhakar, AIR 1966 SC 424 (#1966 (1) SCR 702) aid of Article 21 was made available perhaps for the first time to a prisoner while dealing with the question of his right of reading and writing books while in jail.
(2) Suresh Chandra vs. State of Gujarat, 1976 (1) SCC 654; and Krishan Lal v. State of Bihar 1976 (1) SCC 655 saw this court stating about penological innovation in the shape of parole to check recividism because of which liberal use of the same was recommended.
(3) A challenge was made to the segregation of prisoners in Bhuvan Mohan Pattnaik v. State of Andhra Pradesh, AIR 1974 SC 2092 (#1975-2 SCR 24) and a three Judge bench stated that resort to oppressive measures to cub political beliefs (the prisoner was a Naxalite because of which he was put in a `quarantine' and subjected to inhuman treatment) could not be permitted. The Court, however, opined that a prisoner could not complain of installation of high-volt live wire mechanism on the jail walls to prevent escape from prisons, as no prisoner had fundamental right to escape from lawful custody.
(4) In Charles Sobraj it was stated that this Court would intervene even in prison administration when constitutional rights or statutory prescriptions are transgressed to the injury of a prisoner. In that case the complaint was against incarceratary torture.
(5) Sunil Batra (I) dealt with the question whether prisoners are entitled to all constitutional rights, apart from fundamental rights. In that case this Court was called upon to decide as to when solitary confinement could be imposed on a prisoner. in Kishor Singh v. State of Rajasthan, AIR 1981 SC 2625 (#1981 (1) SCC 503) also the Court dealt with the parameters of solitary confinement.

(6)Prem Shankar v. Delhi Administration, AIR 1980 SC 1535 (#1980 (3) SCR 855); and Kadra Pahadiya v. State of Bihar, AIR 1981 SC 959 (#1981-3 SCC 671) prohibited putting of undertrial prisoners in leg-irons.

(7) In Sunil Batra (II) the Court was called upon the deal with prison vices and the judgment protected the prisoners from these vices with the shield of Article 21, Krishna Iyer. J. Stated that "prisons are built with the stones of law".

(8) A challenge was made to a prison rule which permitted only one interview in a month with the members of the family or legal advisor in Francis Coralie v. Union Territory of Delhi AIR 1981 SC 746(+1981 (8) SCR 516) and the rule was held violative, inter alia, of Article 21.

(9) In series of cases, to wit, Veena Sethi v. State of Bihar, AIR 1983 SC 339 (=1982 (2) SCR 583); (ii) Sant Bir v. State of Bihar, AIR 1982 SC 1470 (= 1982 (3) SCC (31); and (ii) Sheela Barse v. Union Territory,1993 (4) SCC 204, this Court was called upon the decide as to when an insane person can be detained in a prison. In Sheela Barse it was held that jailing of non-criminal mentally ill persons is unconstitutional & directions were given to stop confinement of such persons.

It would be of some interest to point that in Sheela Barse, an order was passed to acquaint the Chief Secretaries of every State with the decision and he was directed to furnish some information to the Standing Counsel of his State. On being found that State of Assam had not complied with the order, this Court appointed Sr. Advocate Shri Gopal Subramanium as its Commissioner by its order dated 13.5.1994 to have discussion with the Chief Secretary of that State and to ensure immediate obedience of the orders passed in that case. Shri Subramanium's voluminous report dated 15.9.1994 running into 532 pages tells a story too wet for tears. All concerned were found ignorant of the decision in Sheela Barse which was rendered in August, 1993; and what is more, a disturbing nexus between the judiciary, the police and the administration came to light. This was said to have led to a most shocking state of affairs negating the very basis of the existence of human life.
We do hope that by now all the States of the Country must have acted as per the directions in Sheela Barse.

10) The judicial work done by this Court on the subject at hand would not be complete without mentioning what was held in Mohammad Giasuddin v. State of Andhra India,1996 (2) SSC 616 in which harsh provisions of TADA were horne in mind and the bench felt that a pragmatic and just approach was required to be adopted to release TADA detenues on bail because of delay in conclusions of trails. The Bench classified these undertrials in four categories and passed different orders relating to their release on bail. More comprehensive view was adopted in two later decisions - these being (1) RD Upadhyay v. State of Andhra Pradesh. 1996 (3) SCC 422; and (ii) "Common Cause" v. Union of India, 1996 (4) SCC 33. The first of these cases dealt with undertrial prisoners lodged in Tihar jail and directions were given to release them on bail depending upon the type of offences alleged against them on the completion of period mentioned in the judgment. The second case is more general inasmuch as it dealt with undertrial prisoners lodged in various jails of the country. The bench directed for their release on conditions laid down in the order. It was stated that directions shall be valid in all the States in Union Territories and would apply not only to pending cases but also to future cases. The directions were, however, not made applicable to certain classes of cases mentioned in the order.

(11) On top of all, there is the undoubted right of speedy trial of undertrial prisoners, as held in a catena of cases of this Court. The first decision in this regard is by a two-Judge bench in Supreme Court Legal Aid Committee representing Undertrial Prisoners v. Union of India, 1994 (6) SCC 731, wherein the bench was concerned with the detention of large number of persons in jail in connection with various offences under Narcotic Drugs and Psychotropic Substances Act. 1985. The Court, after noting the stringent provisions relating to bail as incorporated in that Act, directed for release of those undertrial prisoners who were languishing in jail for a period exceeding half of the punishment provided in the Act. This decision was cited with approval by another two-Judge bench in Shaheen Welfare Association v. Union of ill persons is unconstitutional and directions were given to stop confinement of such persons.

Facts: this petition has its origin in a letter from one Rama Murthy, a prisoner in Central Jail, Bangalore, addressed to the Hon'ble Chief Justice of this Court. In the letter the main grievance was about denial of rightful wages to the prisoners despite doing hard work by them in different sections of the prison. Mention was also made about "non- eatable food" and "mental and physical torture". On the matter being taken up judicially, a need was felt, in view of the denial of the allegations in the objection filed on behalf of the respondent, that the District Judge, Bangalore, should visit the Central Jail and should find out the pattern of payment of wages and also the general conditions of the prisoners such as residence, sanitation, food, medicine etc. This order was passed on 26.11.1992 and the District Judge, after seeking time for submitting report from this Court, did so on 28.4.1993. His report runs into more than 300 pages (along with voluminous annexures), which shows the earnestness and pains which the District Judge evinced and took in submitting the report.

Para 23 summary of the report by the district judge.
1. The general condition of the prisoners is satisfactory. Their treatment by the Jail Authorities is also satisfactory.
2. The quality, quantity and timely supply of food to the prisoners are satisfactory.
3. The pattern of payment of wages is as per Annexure -F and it is being followed properly. The wages
are correctly recorded and paid to the prisoners as per rules.
4. The residence (the accommodation) to the prisoners in the jail are adequate and satisfactory. But the maintenance of buildings by the P.W.D. authorities is hopelessly bad for want of funds from the Government according to them.
5. The sanitation is not satisfactory due to accute scarcity of water. The jail premises is normally maintained clean and tidy with great efforts. But it is improving since about a month after opening 3 or 4 borewells.
6. The medical facilities in the Jail Hospital and supply of medicines to the prisoners are satisfactory. Due to overt population in the jail the two Doctors and their staff at present in the jail Hospital are unable to cope up with the demands but still there is no slackness or negligence in their work. for want of Lady Doctor and women staff in the hospital the Medical attendance to women prisoners is not proper or satisfactory.
7. Visit of prisoners to their homes or their places is not prompt or regular as per rules due to want of Police Escorts. This has caused lot of dissatisfaction and depression among the prisoners.
8. The production of prisoners in Courts on the dates of hearing in their cases is not regular or prompt due to want of Police Escorts and vehicles. This has affected the expeditious disposal of custody cases in Courts. The prisoners are very much agitated over this.
9. The production of prisoners in the Hospitals outside the jail for examination or treatment by the
experts is not prompt or regular due to want of Police Escorts.
10. Mental patients in the jail and the prisoners with serious diseases requiring treatment outside the
jail are compelled to remain in jail for want of accommodation in such hospitals.
11. The place and procedure followed for interviews between the prisoners their kith and kin, friends and visitors is not satisfactory.
12. Canteen facilities should improve. The sale of articles in the Canteen at the price above market prices to make profit is causing great hardship to the prisoners."

Para 24 Recommendation by District Judge
1. P.W.D. Authorities in charge of the maintenance of the buildings and the premises of the jail are to
be directed to maintain the buildings properly as per the requirement in the jail by getting necessary funds from the Government on priority basis. Necessary instructions may be issued to the Government in this regard to provide funds and to accord permission.
2. Sanitation in the jail premises requires lot of improvement. P.W.D. Authorities are to be directed to repair the existing pipe lines and the sewerage lines in addition to providing Electric pumps to the bore-wells in the jail premises.
3. The staff in the jail hospital has to be increased by providing at least 2 more Doctors preferably who
have specialised in the particular field where the prisoners may require their services in special cases. One Lade Medical Officer, a Lady Nurse and two lady attendants for the purpose of attending the women prisoners. The location of their office may be provided in the separate block meant for women prisoners. If regular posting of Doctors cannot be made for the purposes stated above, the services of the Doctors from other Government Hospitals in Bangalore may be secured as a routine periodically or in case of emergencies by providing them some conveyance. It is suggested that doctors in-charge of the Hospital may visit each barrack at least once in a week and meet the inmates to know their health problems and to treat them in jail Hospital. In case of emergency as agreed by them, they may visit the prisoners whenever their services are required.
4. The Jail Authorities may be directed to arrange for the regular visit of the prisoners to their homes or their places periodically as per the rules without insisting any deposit or security or police report unless it is inevitable and in case of emergency like death, serious illness and other important festivals, functions arrangements should be made for their visit relaxing all the required formalities. By way of follow up action, the Jail Authorities may be instructed to submit the report of the returns to the prl. City Civil & Sessions Judge, Bangalore once in a month in this regard in addition to special reports as and then it is necessary or as per the directions of the prl. City Civil and Session Judge, Bangalore. For
this purpose the Home Department has to be requested to spare sufficient number of police Escorts
and the vehicles as and when it is required by the Jail Authorities. If possible as suggested by the Superintendent of Jail, some fixed number of escorts may be permanently posted to work in the jail to assist the Jail Authorities in cases of visits due to emergencies.
5. The Superintendent of the jail may be instructed to produce the UTPs before the Courts in which their cases are pending on the dates of hearing fixed by the Courts regularly and promptly. For this purpose, the Home Department of the Government may be requested to spare sufficient number of police Escorts and the vehicles as and when it is required by the Jail Authorities. The Superintendent of
the Jail has to be instructed to submit a report in this regard at least once in a month to the prl.City Civil & Sessions Judge, Bangalore compliance of such instructions.
6. The Superintendent of the jail should take all the steps to produce the prisoners to the Hospitals outside the jail for the purpose of examination and treatment whenever necessary as per the opinion of the Jail Doctors and for this purpose also, the same procedure may be followed regarding police Escort as stated above.
7. All the hospitals under the control of the Government who are expected to treat the prisoners either in the normal cases or in special cases may be strictly instructed to treat the prisoners either as in-patients or otherwise as per the recommendation of the jail Doctors and the Superintendent of the Jail without referring them back to the jail for treatment, particularly in case of mental patients, the NIMHANS authorities may be requested to treat them as in-patients till they become normal without referring them back to the jail.
8. It is absolutely necessary to provide proper accommodation with sufficient space of the interviews between the prisoners with their kith and kin, friends and visitors. The procedure which is being followed at present also required to be modified as suggested in the discussions stated above in para-20. If possible separate portions may be made in the accommodation for the purpose of interviews. The
Superintendent of the jail may be instructed to submit the report in this regard at least once in 3 months to the prl. City Civil & Sessions Judge, Bangalore who may review the same issue instructions as and when it is necessary.
9. Canteen facilities in the jail require improvements. Some more articles for day to day use of the inmates may be sold in the Canteen. The Superintendent of the Jail may in consultation of the prisoners
submit a report in this regard to the prl. City Civil & Sessions Judge, Bangalore mentioning the articles which may be sold in the Canteen. The Jail Authorities should be strictly instructed not to sell any of the articles to the prisoners at a rate more than the market price or for profit. For this purpose, they may adopt any procedure whereby the articles can be held on the Principle `no loss no profit' basis.
10. It may be necessary to instruct follow up action by all the concerned Authorities in regard to the implementation of the items stated above."

NHRC is of the view that prison system is need of reform.
nine major problems which afflict the system and which need immediate attention. These are : (1) overcrowding; (2) delay in trial ; (3) torture and ill- treatment; (4) neglect of health and hygiene; (5) insubstantial food and inadequate clothing ; (6) prison vices; (7) deficiency in communication; (8) streamlining o jail visits; and (9) management of open air prisons.

Overcrowding – US SC judgements – Wolfe v Mc Donald, Rhodes v Chapman – Held two prisoners in one cell was not unconstitutional, Constitution did not mandate comfortable prisons. Even if overcrowding be not constitutionally impermissible, there is no doubt that the same does affect the health of prisoners for the reason noted above. The same also very adversely affects hygienic condition. It is, therefore, to be taken care of. Overcrowding may also be taken care of by taking recourse to alternatives to incarceration. These being: (1) fine; (2) civil commitment; and (3) probation.

Another baneful effect of overcrowding. The same is that it does not permit segregation among convicts - Those punished for serious offences and for minor. The result may be that hardened criminals spread their influence over others. Then, juvenile offenders kept in jails (because of inadequacy of alternative places where they are required to be confined) get mixed up with others and they are likely to get spoiled further. Overcrowding is reduced by releases on parole as well, which is a conditional release of an individual from prison after he has served part of the sentence imposed upon him.

Neglect of Health & Hygiene -

Delay in Trial – Production of UTP on remand dates a statutory obligation. Conscious of the fact that the Police force is overworked. Required the requisite authority to take decision in 6 months.

Torture & Ill treatment- Horror Stories – Cellular jail in Port Blair resounds with cries of prisoners who were subject to various forms of torture. This is now being brought home in the Light and Sound programme being organised in that jail, which after Independence has been declared as a national monument. Other jails would also tell similar stories.
Apart from torture, various other physical ill- treatment like putting of fetters, iron bars are generally taken recourse to in jails. Some of these are under the colour of provisions in Jail Manuals. The permissible limits of these methods has been spelt out well in many earlier decisions of this Court. Strong need for All India Jail Manual – century old Prison Act 1894 needs reform. NHRC has also felt the need for such an exercise Para 4.18 & 4.21 of its report.

Chapter IX on `Prison Discipline' in RN Datir's book on `Prison as a Social System', shows that in some Jail Manuals even flogging/whipping has been retained as a punishment, which would not be permissible in view of the right enshrined in Article 21 of the Constitution.

Apposite in this context to refer to the recent decision of the United States Supreme Court in Hudson v. Mc Millian, 403 US 1, in which that Court was required to decide whether the use of excessive physical force against a prisoner may constitute cruel and unusual punishment even when the inmate does not suffer serious injury. This question was answered in affirmative by majority of 7:2. As already mentioned Article 21 of our Constitution also does not permit cruel punishment.

The ideal prison and the advance prison system which the enlightened segment of the society visualise would not permit torture and ill-treatment of prisoners. Of course, if for violating prison discipline some punishment is required to be given, that would be a different matter.

Insubstantial food & inadequate clothing – complain box – short notice period of inspection – appropriate action against the delinquent must be taken – full assurance to prisoners – will not suffer evil consequences.

Prison Vices – sympathetic approach required – not saying that jail authorities need not take action against the prisoners indulging in vices.

Deficiency in communication(kith & kin) – liberalised view is desirable – some rationale for restricting visits, but insofar as communication by post is concerned – no plausible reason to deny the same.

Stream lining of Jail visits - Prison visits fall into three categories: (1) relatives and friends; (2) professionals; and (3) lay persons. Spouse – majority of criminals 18-34 – denial of conjugal life creates emotional problems – visits by spouse extremely important.

Difficult for visitors – isolated prisons – lack of facilities for visitors – no privacy – screening – emphasizes separation rather than retaining common bonds – Urgent need to streamline visits. – Dr Mir Mehraj-ud-din in his book ‘Crime & Criminal Justice System in India’ – Chap VI – Resocialization: Search for goals - frequent jail visits by family members go a long way in acceptance of the prisoner by his family and small friendly group after his release from jail finally, as the visits continue the personal relationship during the term of imprisonment, which brings about a psychological communion between him and other members of the family.
As to visits by professionals, i.e. the lawyer, the same has to be guaranteed to the required extent. If the prisoner be a pre-trial detainee, in view of the right conferred by Article 22(1) of the Constitution.

Management of Open Air prisons. – play an important role in the scheme of reformation of a prisoner which has to be one of the desideratum of prison management. They represent one of the most successful applications of the principle of individualization of penalties with a view to social readjustment as stated by B. Chandra in the Preface to his book titled "Open Air Prisons". It has been said so because release of offenders on probation, home leave to prisoners, introduction of wage system, release on parole, educational, moral and vocational training of prisoners are some of the features of the open air prison (camp) system. Chandra has stated in the concluding portion of Chapter 3 at page 150 (of 1984 edition) that in terms of finances, open institution is far less costly than a closed establishment and the scheme has further advantage that the Government is able to employ in work, for the benefit of the public at large, the jail population which would have otherwise remained unproductive. According to the author, the monetary returns are positive, and once put into operation, the camps pay for itself.

Open air prison, however, create their own problem which are basically of management. We are, however, sure that these problems are not such which cannot be sorted out. For the greater good of the society, which consists in seeing that the inmates of a jail come out, not as a hardened criminal but as a reformed person, no managerial problem is insurmountable.

Instructions of the Hon’ble Bench summarized
(1) To take appropriate decision on the recommendations of the Law Commission of India made in its 78th Report on the subject of `Congestion of undertrial prisoners in jail' as contained in Chapter 9. (Para 20A).

(2) To apply mind to the suggestions of the Mulla Committee as contained in Chapter 20 of Volume I of its Report relating to streamlining the remission system and premature release (parole), and then to do the needful. (Para 23).

(3) To consider the question of entrusting the duty of producing UTPs on remand dates to the prison staff. (Para P7).

(4) To deliberate about enacting of new Prison Act to replace century old Indian Prison At, 1894. (Para 31). We understand that the National Human Rights Commission has prepared on outline of an All-India statute, which may replace the old act; and some discussions at a national level conference also took place in 1995. we are of the view that all the States must try to amend their own enactments, if any, in harmony with the all India thinking in this regard.

(5) To examine the question of framing of a model new All India Jail Manual as indicated in para 31.

(6) To reflect on the recommendations of Mulla Committee made in Chapter 29 on the subject of giving proper medical facilities and maintaining appropriate hygienic conditions and to take needed steps. (Paras 35 & 36).

(7) To ponder about the need of complaint box in all the jails. (Para 37).

(8) To think about introduction of liberalisation of communication facilities. (Para 40).

(9) To take needful steps for streamlining of jail visits as indicated in para 42.

(10) To ruminate on the question of introduction of open air prisons at least in the District Headquarters of the country.