Hiralal Mallick Vs. State of Bihar
 INSC 165 (16 August 1977)
CITATION: 1977 AIR 2236 1978 SCR (1) 301 1977
SCC (4) 44
CITATOR INFO :
RF 1979 SC1519 (14) RF 1980 SC2147 (43) RF
1983 SC 1 (108)
Indian Penal Code, sections 302 and
34-Vernier scale of mens rea, reasonable and probable consequences of the ActDegree
of criminality gauged by personalised approach to circumstances of involvement,
doli capax, age and expectation of consequences by offender-Desideratum of
sentence-Welfare and therapeutic orientation of jus juvenalis-Correction and
rehabilitation of luvenile delinquent.
Hiralal Mallick was 12 years old when he
along with his two elder brothers, was convicted by the Trial Court under s.
302 read with s. 34, I.P.C., and sentenced
for life. In appeal, the High Court directed the conversion of the convictions
from s. 302 into one under s. 326 read with s.
34, I.P.C., and the appellants sentence was
reduced to 4 years in consideration for his young age.
The appellant contended that his
participation in the crime could only attract s. 324 I.P.C., that he was too
infantine to understand the deadly import of the sword wounds delivered by him,
that his involvement had been circumstanced by the fraternal company, and that
he had only inflicted superficial injuries showing a lesser degree of intent.
Dismissing the appeal, but prescribing
guidelines for the appellants treatment in Jail. the Court.
HELD : (1) The vernier scale of a maws mens
rea is, the pragmatic one ,of the reasonable and probable consequences of his
act. Except in pronounced ,categories, the intent is spelt out objectively by
the rough-and-ready test of the prudent man and not with psychic sensitivity to
retarded individuals. [303F, G] Observation:
Man is a rational being, and law is a system
of behavioral cybernetics where noetic niceties, if pressed too far, may defeat
its societal efficacy. [303F] (2) When a crime is committed by the concerted
action of a plurality of persons the degree of criminality may very , depending
not only on the injurious sequal but also on the part played and the
circumstances present, a personalised approach with reference to each
participant has to be made regarding the circumstance of involvement, his doli
capax, age and expectation of consequences. [304-A, C] Observation (i) Adult
intent, automatically attributed to infant mens is an error, but at the same
time, doli capax is not so much measured by years and days as by the strength
of the delinquent's understanding and judgment. [304H, 305A] Criminal Pleading,
Evidence & Practice by Archibold, An Introduction in Criminal Law by Cross
and Jones, R. v. Owen  4 C & P 236; R. v. Kershaw  18 T.L.R.
Criminology Problems and Perspective, page
127 by Ahmad Siddique; referred to.
(ii) The ultimate desideratum of most
sentences is to make an offender a non-offender. The Indian legal system must
be sensitized by juvenile justice. The Bench and the Bar should be alerted about
jus juvenalis. The compassion of the penal law for juvenescent cannot be
reduced to jeunity by forensic indifference, since justice to juvenile justice
desiderates more from a lively judicial process. The establishment of a welfare
oriented jurisdiction over juveniles is predicated and over judicialisation and
over formalisation of Court proceedings is contra-indicated.
Correctionally speaking, the perception of
delinquency as indicative of the person's underlying difficulties, inner
tensions and explosive stresses similar to those of maladjusted children, and
the belief that court atmosphere is psychically traumatic and socially
stigmatic, argues in favour of more 302 informal treatment by a free mix of
professional and social workers and experts operating within the framework of
the law. Our nation can never be descriminalised until the States legislate a
children Act, set up the curial and other infrastructure and give up
retributions in favour of restorative arts in the jurisdiction of young deviants,
and the crime of punishing them is purged legislatively, administratively and
judicatively. [305D-E, 306C, 307A-D] 'Sentencing and Probation' (published by :
National College of the State Judiciary, Reno, Nevada, U.S.A.)'-, Kent v.
United States, 383 U.S. 541, 556 ;
Social Defence, Vol. VII No. 25, July 1971 (published by : the Central Bureau
of Correctional Services, Department of Social Welfare, Government of India)
Direction It is essential that the
therapeutic orientation of the prison system, vis-a-vis the appellant, must be
calculated to release stresses, resolve tensions and restore inner balance.
Work designed constructively and curatively with special reference to the needs
of the person involved, may have a healing effect and change the personality of
the quondam criminal. It is correctionally desirable to grant parole to
prisoners periodically, and it is important for the prison department to
explore, experiment and organise gradually some reformative exercise like Transcendental
Meditation, in order to eliminate recidivism, and induce rehabilitation. The
brooding presence of judicial vigilance is the institutional price of prison
justice. The sentencing process should be reformed with flexibility humanity,
restoration and periodic review informing the system and involving the court in
the healing directions and corrections affecting the sentencee whom judicial
power has cast into the 'cage'. [310G-H, 313A-E, 314A-B] Guidelines for
sentencing (published by : the National Probation and Parole Association, New
York 1957); Rigveda 189-i; Bhavan's Journal, July 17, 1977, page 57; Kentucky
J., Vol. 60 1971-72 No. 2; University of
Maryland Law Forum, Vol. III, No. 2, Winter 1973; State of Arizona v. Jean
Coston Presley (Case No. 6878) Judgment dated 5-3-76; and United States of
America v. Robert Charles Rusch Jr.
(Criminal Action No. 4-8-1750 in the U.S.
District Court for Eastern District of Michigan) referred to.
CRIMINAL, APPELLATEJURISDICTION : Criminal
Appeal No. 256 of 1977.
Appeal by Special Leave from the Judgment and
Order dated 29-16-76 of the Patna High Court in Criminal Appeal No. 464 of
D. Goburdhan for the Appellant.
U. P. Singh, and S. N. Jha for the
The following Judgments were delivered :
KRISHNA IYER,. J.-This appeal involves an
issue of criminal culpability presenting mixed questions of fact and law and a
theme of juvenile justice, a criminological Cinderella of the Indian
Hiralal Mallick, the sole appellant before
us, was a 12-year old lad when he toddled into crime, conjointly with his two
elder brothers. The three, together, were charged with the homicide of one
Arjan Mallick which ended in a conviction of all under S. 302 read with S. 34
IPC. The trial judge impartially imposed on each one a punishment of
imprisonment for life. On appeal by all 'the three, the High Court, taking note
of some pecularities, directed the conversion of the convictions from S. 302
(read with S. 34) into one under s. 326 (read 303 with's. 34) IPC and,
consequently, pared down the punishment awarded to the co-accused into rigorous
imprisonment for 8 years. The third accused, the appellant before us, was shown
consideration for his tender age of 12 years (at the time of commission of the
crime) and the, court, in a mood of compassion, softened the sentence on the
boy into rigorous imprisonment for 4 years.
A close-up of the participatory role of the
youthful offender, as distinguished from that of his elder brothers, discloses
a junior partnership for him. For, argued Shri Goburdhan, while accused 1 and 2
caused the fatal stabs, the appellant was found to have inflicted superficial
cuts on the victim with a sharp weapon, probably angered by the episode of an
earlier attack on their father, induced by the stress of the reprisal urge and
spurred by his brothers' rush after the foe, but all the same definitely
helping them in their aggression. That he was too infantine to understand the
deadly import of the sword blows he delivered is obvious; that he inflicted
lesser injuries of a superficial nature is proved; that he, like the other two,
chased and chopped and took to his heels, is evident. The immature age of the
offender, the fraternal company which circumstanced his involvement, the degree
of intent gaged by the depth of the wounds he caused and the other facts surrounding
the occurrence, should persuade us to hold that this juvenile was guilty-not of
deayh-dealing brutality-but of naughty criminality, in a violent spree.
Measured by his intent and infancy, his sinister part in the macabre offence
ran upt o infliction of injury with a cutting weapon attracting s. 324 IPC, not
more. Such was the mecaronic submission of counsel anxious to press for an
extenuatory exoneration from incarceration.
This mix-up of degree of culpability and
quantum of punishment is unscientific and so we have first to fix the
appellant's guilt under the Penal Code and then turn to the punitory process.
Criminality comes first, humanist sentence next.
Ordinarily, the vernier scale of a man's mens
rea is the pragmatic one of the reasonable and probable consequences of his
act. The weapon he has used, the situs of the anatomy on which be has inflicted
the injury and the like, are inputs. If that be the mental standard of the
turpitude, the offender's faculty of understanding becomes pertinent.
Man is a rational being and law is a system
of behavioral cybernetics where noetic niceties, if pressed too far, may defeat
its societal efficacy. So, except in pronounced categories, which we will
advert to presently, the intent is spelt out objectively by the rough-and-ready
test of the prudent man and not with psychic sensitivity to retarded
individuals. Viewed in this perspective, the materials present in the case,
especially the medical evidence, shows that this young offender armed himself
like his brothers with a cutting instrument and set upon the victim using the
sword on his neck. The autopsy evidence discloses that the injuries caused by
the appellant were not the lethal ones;
but multiple sword cuts on the neck of a man,
leave little room for doubt in the ordinary run of cases as to the intent of
the assailant. When three persons, swords in hand, attack a single individual,
fell him on the ground and strike on his neck and skull several times with a
sharp 304 weapon, it is not caressing but killing, in all conscience and
commonsense. The turpitude cannot be attenuated, and the inference is
inevitable that the least the parties sought to execute was to endanger the life
of the target person. In this light, the malefic contribution of the appellant
to the crime is substantially the same as that of the other two.
When a crime is committed by the concerted
action of a plurality of persons constructive liability implicates each
participant, but the degree of criminality may vary depending not only on the
injurious sequel but also on the part played and the circumstances present,
making a personalised approach with reference to each. Merely because of the
fatal outcome, even those whose intention, otherwise made out to be far less
than homicidal, cannot, by hindsight reading, be meant to have had a murderous
or kindred mens rea. We have, therefore, to consider in an individualised
manner the circumstances of the involvement of the appellant, his nonage and
expectation of consequences.
When a teenager, tensed by his elders or
provoked by the stone-hit on the head of his father, avenges with dangerous
sticks or swords, copying his brothers, we cannot altogether ignore his impaired
understanding, his tender age and blinding environs and motivations causatory
of his crime.
It is common ground that the appellant was
twelve years old at the time of the occurrence. At common law in England, as
noticed by Archbold in Criminal Pleading, Evidence and Practice, a child under
14 years is presumed not to have reached the age of discretion and to be doli
incapax; but this presumption may be rebutted by strong and pregnant evidence
of a mischievous discretion... for the capacity to commit crime, do evil and
contract guilt, is not so much measured by years and days as by the strength of
the delinquent's understanding and judgment.
Cross & Jones in 'An Introduction to
Criminal Law' state :
"It is conclusively presumed that no
child under the age of ten years can be guilty of any offence; a child of ten
years or over, but under the age of fourteen, is presumed to be incapable of
committing a crime, but this presumption may be rebutted by evidence of
'mischievous discretion' i.e., knowledge that what was done was morally
wrong." R. V. Owen (1830) 4 C & P. 236. Cross & Jones further
state : "The rebuttable presumption of innocence in the case of persons
between the age of ten and fourteen is still wholly dependent on the common
law. The Crown cannot, as in most other cases, rely on the actus reus as
evidence of mens rea; other evidence that the child knew it was doing something
morally wrong must be adduced." : R. v. Kershaw (1902) 18 T.L.R. 357.
In English Law, when an adolescent is.
charged with an offence, the prosecution has to prove more than the presence of
a guilty mind but must go further to make out that 'when the boy did the act,
he knew that he was doing what wrongnot merely what was wrong but what was
gravely wrong, seriously wrong' (emphasis added).
Adult intent, automatically attributed to
infant mens, is itself an adult error. It is everyday experience that little
boys as a class have 305 less responsible appreciation of dangers to themselves
or others by injurious acts and so it is that the new penology in many
countries immunises crimes committed by children of and below ten years of age
and those between the ages of 10 and 14 are 'in a twilight zone in which they
are morally responsible not as a class, but as individuals when they know their
act to be wrong. The Indian Penal Code, which needs updating in many portions,
extends total immunity upto the age of seven (s. 82) and partial absolution
upto the age of twelve (s. 83). The latter provision reads :
"83. Nothing is an offence which is done
by a child above seven years of age and under twelve, who has not attained
sufficient maturity of understanding to judge of the nature and consequences of
his conduct on that occasion.
The venal solicitude of the law for vernal
offenders is essentially a modern sensitivity of penology although from the
Code of Hammurabi, the days of the Hebrews and vintage English law, this
clement disposition is a criminological heritage, marred, of course, by some
periods and some countries. Dr. Siddique mentions that there have been
instances in England where children of tender years were given death sentences
like the case where two kids of eight or nine years were given ,capital
punishment for stealing a pair of shoes (p. 127, Criminology: Problems & Perspectives,
by Ahmad Siddique : Eastern Book Co.). At least as mankind is approaching the
International Year of the Child (1979), the Indian legal system must be
sensitized by juvenile justice. This conscientious consciousness prompted us to
counsel to examine the statutory position and criminological projects in the
'child' area. We had to make-do with what assistance we got but hope that when
a near-pubescent accused is marched into a criminal court, the Bench and the
Bar will be alerted about jus juvenalis, if we may so call it. The compassion
of the penal law for juvenescents cannot be reduced to jejunity by forensic
indifference since the rule of law lives by law-in-action, not law in the
books. Unfortunately, at no stage, from the charge-sheet to the petition for
special leave, has awareness of s. 83 of the Panel Code, the Probation of Offenders
Act, 1958 or the Bihar Children Act, 1970, been shown in this case. May be, the
offence charged being under s. 302 IPC and the guilt ultimately found being of
an offence punishable with life imprisonment, account for this
non-consideration. Even so, justice to juvenile justice desiderates more from a
lively judicial process.
Back to Hiralal Mallick and his crime and
punishment. Was he guilty under s. 326 IPC as the High Court has found, or was
he liable only under s. 324 as Shri Goburdhun urges He was twelve; he wielded a
sword; he struck on the neck of the deceased; he rushed to avenge; he ran away
like the rest.
No evidence as to whether he was under
twelve, as conditioned by s. 83 IPC is adduced; no attention to feeble
understanding or youthful frolic is addressed. And we are past the judicial
decks where factual questions like this can be investigated. The prima facie
inference of intent to endanger the life of the deceased with a sharp weapon
stands unrebutted. Indeed, robust realism easily imputes doli capax to a twelver
who cuts on the neck of another with 306 a sword; for, if he does not know this
to be wrong or likely to rip open a vital part he must be very abnormal and in
greater need of judicial intervention for normalisation.
The conviction under S. 326, IPC, therefore,
must be reluctantly sustained. When such is the law, we cannot innovate to
attenuate, submit to spasmodic sentiment, or ride an unregulated benevolence.
We cannot forget Benjamin Cardozo's caveat that "the Judge, even when he
is free, is still not wholly free'. Fettered by the law, we uphold the
Now to the issue of 'sentence'. Guidelines
for sentencing are difficult to prescribe and more difficult to practice.
Justice Henry Alfred McCardie succinctly puts
it "Trying a man is easy, as easy as falling off a log, compared with
deciding what to do with him when he has been found guilty."(1) (p. 362)
Speaking broadly, the ultimate desideratum of most sentences is 'to make an
offender a non-offender. Only as judges impose effective sentences with a
proper attitude and manner will they perform their expected function of
decreasing the rising number of criminal and quasi-criminal activities in this
nation' (p. 364) (1) Penal humanitarianism has come to assert itself, although
Sir Winston Churchill put the point of the common man and of the judge with
forceful clarity "The mood and temper of the public with regard to the
treatment of crime and criminals is one of the most unfailing tests of the
civilization of any country. (p. 68) (1) By that unfailing test we fail, if we
betray brutality towards children and burke the human hope of tomorrow and the
current trust in our hands and hearts. So it is that in the words of the
Archbishop of York in the House of Lords' debate in 1965 :
"Society must say, through its officers
of law, that it repudiates certain acts as utterly incompatible with civilized
conduct and that it will exact retribution from those who violate its ordered
code. . . " (p. 1 8) (1) It is a badge of our humanist culture that we hold
fast to a national youth policy in criminology. The dignity and divinity, the
self-worth and creative potential of every individual is a higher value of the
Indian people; special protection for children is a constitutional guarantee
writ into Art. 15(3) and 39(f). Therefore, without more, our judicial processes
and sentencing paradigms must lead kindly light along the correctional way.
That is why Gandhiji emphasized the hospital setting, the patient's profile in
dealing with 'criminals'. In-patient, out-patient and domiciliary treatment
with curative orientation is the penological reverence to the Father of the
Nation. A necessary blossom of this ideology is the legislative development of
criminological pediatrics. And yet it is deeply regrettable that in Bihar, the
land of the Buddha-the beacon-light whose compassion encompassed all living
beingsthe delinquent child is inhospitably treated. Why did this (1) All
quotations from 'Sentencing and Probation'Published by National College of the
State Judiciary, Reno, Nevada, U.S.A.).
307 finer consciousness of juvenile justice
not dawn on the Bihar legislators and government. Why did the State not pass a
Children Act through its elected members ? And one blushes to think that a
belated Children Act, passed in 1970 during President's rule, was allowed to
lapse Today, may be, the barbarity of tender-age offenders being handcuffed
like adult habituals, trooped into the crowded criminal court in hurtful
humiliation and escorted by policemen, tried along with adults attended by
court formalities, survives in that hallowed State; for, counsel for Bihar
surprised us with the statement that there now exists no Children Act in that
State. With all our boasts and all our hopes, our nation can never really be
decriminalized until the crime of punishment of the young deviants is purged
legislatively, administratively and judicatively. This twelve-year old
delinquent would have had a holistic career ahead, instead of being branded a
murderer, had a Children Act refined the Statute Book and the State set up
Children's Courts and provided for healing the psyche of the little human.
Conceptually, the establishment of a
welfare-oriented jurisdiction over juveniles is predicated and overjudicialisation
and over-formalisation of court proceedings is contraindicated. Correctionally
speaking, the perception of delinquency as indicative of the person's
underlying difficulties, inner tensions and explosive stresses similar to those
of maladjusted children, the-belief that court atmosphere with forensic robes,
gowns and uniforms and contentious disputes and frowning paraphernalia like
docks and stands and crowds and other criminals marched in and out, are
psychically traumatic and socially astigmatic, argues in favour of more informal
treatment by a free mix of professional and social workers and experts
operating within the framework of the law. There is a case to move away from
the traditional punitive strategies in favour of the nourishing needs of
juveniles being supplied by means of a treatment-oriented perspective. This
radicalisation and humanisation of jus juvenalis has resulted in legislative
projects which jettison procedural rigours and implant informal and flexible
measures of freely negotiated nonjudicial settlement of cases. These advances
in juvenile criminology were reflected inter alia in the Children Act, 1960.
The rule of law in a Welfare State has to be
operational and, if the State, after a make-believe legislative exercise, is
too insouciant even to bring it into force by a, simple notification, or renew
it after its one year brevity, it amounts to a breach of faith with the humanism
of our supreme lex, an abandonment of the material and moral well-being
promised to, the children of the country in Art.
39(f) and a subtle discrimination between
child and child depending on the State where it is tried. We hopefully speak
for the neglected child and wish that Bihar and, if there are other States
placed in a similar dubiety or dilemma, they too-did make haste to legislate a Children
Act, set up the burial and other infrastructure and give up retributivism in
favour of restorative arts in the jurisdiction of young deviants. Often, the
sinner is not the boy or girl but the broken or indigent family and the
indifferent and elitist society. The law has a heart-or, at least, must 308
have. Mr. Justice Fortas, speaking for the U.S. Supreme Court in Kent v. United
States, said "There may be grounds of concern that the child receives the
worst of both worlds; that he gets neither the protection accorded to adults
nor the solicitous care and regenerative treatment postulated for
children." [383, U.S. 541, 556 (1966), quoted in Siddique, supra, p. 149]
The Indian child must have a new deal.
Now we move on to a realistic appraisal of
The absence of a Children Act leads to a
search for the probation provisions as alternative methods of prophylaxis and
healing. In 1951, the UNESCO recommended a policy of probation as a major
instrument of therapeutic forensics.
Far more comprehensive than S. 562 of the
Code of Criminal Procedure, the Indian Act still leaves room for improvement in
philosophy, application, education and periodical review through Treatment
Tribunals, to mention but a few. We, as judger., are concerned with the law as
it is. And one should have thought that counsel in the courts below would have
pleaded, when the appellant was convicted, for probationary liberation. The decisive
date for fixing the age under S. 6 is when the youth is found guilty. But here
the offence charged is one punishable with death or life imprisonment and the
crime proved at the High Court level is one punishable with life-term. The Act
therefore does not apply. We venture to suggest that in marginal cases this
age-punishability rigidity works hardship but making or modifying laws belongs
to the Legislature. Even so, Chief Justice Sikri complained, inaugurating the
Probation Year (1971) "... But is it enough to pass a law and say that
probation is a good thing ? Not only should the serious student and Probation
Officers be convinced of its advantages but the Judiciary and the Bar must also
become its votaries. Unfortunately at present, very little serious attention is
paid to this aspect by the Judiciary and the Bar. As a matter of fact I was
shocked to see that in a number of cases, which came to the Supreme Court
recently, even the existence of the local Probation of Offenders Act was not
known, or easily ascertainable. No reference to the relevant Probation Act was
made in the court below but the point was for the first time taken in the
grounds for special leave to appeal to the Supreme Court." "It seems
to me that if an accused person is likely to be covered by the Act, and his age
appears to be about 21, efforts should be made by the investigating agency or
the prosecuting counsel to collect material regarding the age.
309 You are all aware that the exact age is
known to very few persons in rural areas.
I also think that a Magistrate should himself
try this question early, if there is any possibility of the applicability of
the Probation of Offenders Act." (Social Defence : Vol. VII, No. 25, July
1971-Quarterly review published by the Central Bureau of Correctional Services,
Department of Social Welfare, Government of India).
We repeat that liberal use of the law is its
Anyway, now that probation also is out of the
way, what incarceratory impost is just ? 'Prison should serve the purposes of
confining people, not of punishing them (Justinian). As the 'Guidelines for
Sentencing' published by the National Probation and Parole Association, New
York, 1957 states :
"Imprisonment is the appropriate
sentence when the offender must be isolated from the community in order to
protect society or if he can learn to readjust his attitudes and patterns of
behavior only in a closely controlled environment." So we come up to the harm
of long shut-up behind the bars.
Subjected to hard labour that rigorous
imprisonment implies and exposed to the deleterious company of hardened adult
criminals, a young person, even if now twenty one, returns a worse man, with
more vices and vengeful attitude towards society. This is self-defeating from
the correctional and deterrent angles.
How then shall we rehabilitate this youth who
has stood nine years of criminal proceedings, suffered some prison life and has
the prospect of hardening years ahead ? This is not a legal problem for
traditional methods. A vehement critic, in overzealous emphasis, once said what
may be exaggerated but carries a point which needs the attention of the, Bench
and the Bar. H. Barnes wrote :
"The diagnosis and treatment of the criminal
is a highly technical medical and sociological problem for which the lawyer is
rarely any better fitted than a real estate agent or a plumber. We shall
ultimately come to admit that society has been unfortunate in handing over
criminals to lawyers and judges in the past as it once was in entrusting
medicine to shamans and astrologers, and surgery to barbers. A hundred years
ago we allowed lawyers and judges to have the same control of the insane
classes as they still exert over the criminal groups, but we now recognize that
insanity is a highly diversified and complex medical problem which we entrust
to properly trained experts in the field of neurology and psychiatry. We may
hope that in another hundred years the treatment of the criminal will be equally
thoroughly and willingly submitted to medical and sociological experts."
(p. 74, Sentencing and Probation, supra) 3 10 We have to turn to correctional
and rehabilitative directions while confirming the four-year term. We affirm
the period of the sentence since there is no particular reason why a very short
term should be awarded. When a young person is being processed correctionally,
a sufficient restorative period to heal the psychic wounds is necessary.
From that angle also a term which is neither
too short nor too long will be the optimum to be adopted by the sentencing
judge. However, the more sensitive question turns on how, behind the prison
walls, behavioral techniques can be built in to repair the distortions of his
Stressologists tell us, by scientific and
sociological research, that the cause of crime in most cases is inner stress,
mental disharmony and unresolved tension. In this very case, the lad of twelve
was tensed into irresponsible sword play as a result of fraternal provocation
and paternal injury. It is, therefore, essential that the therapeutic
orientation of the prison system, vis a vis the appellant, must be calculated
to release stresses, resolve tensions and restore inner balance.
This is too complicated a question and, in
some measure, beyond the judicial expertise, so that we have to borrow tools
and techniques from specialists, researchers and sociologists. The ancient
admonition of the Rigveda, ('Let noble thoughts come to us from every
side-Rigveda 1-89-i) is a good guideline here. From Lenin and Gandhi to leading
sociologists, criminologists and prison-management officials, it is established
that work designed constructively and curatively, with special reference to the
needs of the person involved, may have a healing effect and change the
personality of the quondam criminal. The mechanical chores and the soulless
work performed in jail premises under the coercive presence of the prison
wanders and without reference to relaxation or relish may often be counter-productive.
Even the apparel that the convict wears burns into him humiliatingly, being a
distinguishing dress constantly reminding him that he is not an ordinary human
but a criminal. We, therefore, take the view that within the limits of the
prison rules obtaining in Bihar, reformatory type of work should be prescribed
for the appellant in consultation with the medical officer of the jail. The
visiting team of the Central Prison will pay attention to see that this
directive is carried out. The appellant, quite a young man, who was but a boy
when the offence was committed, shall not be forced to wear convict costume
provided his guardians supply him normal dress.
These harsh obscurantism must gradually be
eroded from our jails by the humanizing winds that blow these days. We
mentioned about stressfully. One method of reducing tension is by providing for
vital links between the prisoner and his family. A prisoner insulated from the
world becomes bestial and, if his family ties are snapped for long, becomes debumanised.
Therefore we regard it as correctionally desirable that this appellant be
granted parole and expect the authorities to give consideration to paroling out
periodically prisoner-,, particularly of, the present type for reasonable
spells, subject to sufficient safeguards ensuring their prober behavior outside
and prompt return inside.
311 More positive efforts are needed to make
the man whole, and this takes us to the domain of mind culture.
Modern scientific studies have validated
ancient vedic insights bequeathing to mankind new meditationa. yogic and other
therapeutics, at once secular, empirically tested and trans-religious. The
psychological, physiologic and sociological experiments conducted on the
effects of Transcendental Meditation (TM, for short) have proved that this
science of creative intelligence, in its meditational applications,
transquillises the tense inside, helps meet stress without distress, overcome
inactivations and instabilities and by holistic healing normalises the severed
and fatigued man. Rehabilitation of psychatric patients, restoration of
juvenile offenders, augmentation of moral tone and temper and, more
importantly, improvement of social behaviour of prisoners are among the proven
findings recorded by researchers. Extensive studies of TM in many prisons in
the U.S.A. Canada, Germany and other countries are reported to have yielded
results of improved creativity, higher responsibility and better behaviour.
Indeed, a few trial courts in the, United States have actually prescribed(1) TM
as a recipe for rehabilitation. As Dr. M.
P. Pai, Principal of the Kasturba Medical
College, Mangalore, has put down "Meditation is a science and this should
be learnt under guidance and cannot be just picked up from books. Objective
studies on the effects of meditation on human body and mind is a modern
observation and has been studied by various investigation at MERUMaharishi
European Research University. Its tranquillising effect on body and mind,
ultimately leading to he greater goal of Cosmic Consciousness or universal
awareness, has been studied by using over a hundred parameters. Transcendental
Meditation practised for 15 minutes in the morning and evening every day brings
about a host of beneficial effects. To name only a few :
1. Body and mind gets into a state of deep
2. -B. M. R. drops, less oxygen is consumed.
3. E.E.G. shows brain wave coherence with
'alpha' wave preponderance.
4. Automatic stability increases.
5. Normalisation of high blood pressure.
6. Reduced use of alcohol and tobacco.
7. Reduced stress, hence decreased plasma
cortisol and blood lactate.
8. Slowing of the heart etc.
1. In the Superior Court of the State of
Arizona-judgment d/5-3-76 in State of Arizona v. Jean Boston Presley-Case No.
Criminal Action No. 4-81750 in the U.S.
District Court for Eastern District of Michigan-United States of America v.
Robert Charles Rusch Jr. 312 The self of
every man has been found to be his consciousness, and its full potential is
found in the state of least excitation of consciousness, which is the most
simple of awareness.
To sum up, inadequacy of 'alpha' waves is
disease, and mental health could be restored by increasing 'alpha' wave
production in the cerebral hemisphere instead of other type of waves seen in
disease. Five years' research has' given encouraging results, and more work in
this field is being done and results are awaited." Lecture on 'Ancient
Insights and Modern Discoveries delivered under the auspices of Bharatiya
Vidhya Bhavan sponsored two-day symposium-Published in Bhavan's journal d/July
17, 1977 : P. 57 under the caption: The Mind of Man : Importance of Mental
A recent Article on TM and the Criminal
Justice System in the Kentucky Law Journal and another one in the Maryland Law
Forum highlight the potency of TM in the field of criminal rehabilitation
(Kentucky L. J. Vol. 60, 1971-72 No. 2; and University of Maryland Law Forum,
Vol. 111, No. 2, Winter 1973). There is no reason, prima facie, if TM
physiologically produces a deep state of restful alertness which rejuvenates
and normalises the functioning of the nervous system, to reject the conclusion
of David E. Sykes which he has summarized thus "Physiologically, T.M.
produces a deep state of restful alertness which rejuvenates and normalizes the
functioning of the nervous system.
Psychologically, T. M. eliminates mental
stress, promotes clearer thinking and greater comprehension; it enriches
perception, improves outlook and promotes efficiency and effectiveness in life.
Sociologically, T. M. eliminates tension and
discordance and promotes more harmonious and fulfilling interpersonal
relationships, thus making every individual more useful to himself and others
and bringing fulfillment to the purpose of society.
The combined physiological, psychological and
sociological changes produce an overall effect of fullness of life. The
elimination of mental, physical and behavioral abnormalities through the
release of deep stress produces a sense of fulfillment and internal hartnony. It
is interesting to note that this development of life in increasing values of
contentment and fulfillment has long been understood in terms of spiritual
development. With the tools of modern science, we can now systematically
evaluate the objective causes and expressions of this inner, personal
development produced by transcendental meditation." 313 It has been
repeatedly pointed out in the literature bearing on the subject that TM is just
not religion, and is like physics applied to human consciousness. Even so, it
is not for the court, at the present stage, to prescribe what the prison
authorities should do with the appellant while he is in their charge.
Nevertheless, we emphasize how important it is for the prison department to
explore, experiment and organize gradually some of these reformative exercises
in order to eliminate recidivism and induce rehabilitation. We make these
observations in the expectation that, facilities being available and the
prisoner's consent being forthcoming, he will be given, under proper initiation
and medical authorisation, courses which will refine his behaviour, develop his
full potential and thereby justify the justice of his forced tenancy for four
An afterword on power. Within the limits of
the Prison Act and rules, there is room for reform of the prisoner's progress.
And the court, whose authority to sentence deprives the sentence of his
constitutional freedoms to a degree, has the power-indeed, the duty to
invigorate the intramural man-management so that the citizen inside has
spacious opportunity to unfold his potential without over such inhibition or
sadistic overseeing. No traditional judicial hand off doctrine nor Prison
department's Monroe doctrine can dissuade or disentitle this Court from issuing
directives, consistently with law, for the purpose of compelling the
institutional confinement to conform to the spirit and standards of the
fundamental rights which belong to the man walled off. We cannot, in all
conscience, order him to be shut up and forget about him. The breading presence
of judical vigilance is the institutional price of prison justice.
We have son journed in the sentencing chapter
of this judgment for so long, our anxiety being to work out purposeful
incarceration shot with just and effective prescription. Red-hot rhetoric or
flaming recommendations can have no more than romantic value since statutory
authority is the only sanction behind a court's directive.
So we requested counsel to search for the
sections and rules under the Prisons Act bearing on constructive correctionoriented
orders the Court has power to pass. Counsel for the State drew our attention to
the vintage measures lost in the statute book like the Reformatory Schools Act
as well as the Borstal Schools Act, apart from the Probation of Offenders Act
and the rules under these laws. This study has served only to convince us that,
while statutory guidelines to fix the quantum of punishment are marked by un canalised
fuidity, the court's correctional role in meaningful sentencing is marginal,
justifying judge Marvin E. Frankel's cynical expression-Criminal Sentences :
Law without Order. The Rai prisons continue gerentologically in their grimy
grimness; the dress, diet, bed, drill, Organisation and discipline why, even
the philosophy and fears-have hardly responded to rehabilitative penology or human
decency. Indeed, it is still an attitude of 'lock them up and throw away the
key', save for some casual 'open Jail' experiments and radical phrases in
academic literature. We omit the Chambal oasis where changes are being tried
out. And this is a startling anti-climax when we remember that our Freedom
Struggle had found nearly all post-Independence leaders 314 in wrathful
incarceration and most India Ministers, now and before, had been no strangers
to prison torments. The time, has come, for reform of the sentencing process
with flexibility, humanity, restoration and periodic review informing the
system and involving the court in the healing directions and corrections
affecting the sentence where judicial power has cast into the 'cage'. For the
nonce, however, we,, as judges, have to work within the law as it now stands.
And we cannot impose what is not sanctioned or is not accepted by the State. So
we have couched what would have been binding man dates in terms of hopeful hal fim
peratives. Subject to the observations regarding imprison and parole treatment
of the appellant, we dismiss the appeal.
GOSWAMI, J.-I agree that there is no merit in
this appeal which is dismissed.
My learned Brother has dealt with both the
lethargy in lawmaking and indifference and indolence in implementing laws in
and attractive and trenchant manner.
So far as the post-sentencing aspects are
concerned, my learned Brother has gone into depth on matters which he has
studied extensively. These will appertain to law reforms as well as prison
forms which the legislature and the implementing executive can profitably
undertake. I hope and trust that my learned Brother's earnest and anxious
observations in this judgment will not be a cry in the wilderness.