Report No. 42
Duty to make amends for the Harm Caused
As pointed out by me in my note on "Externment", one of the important omissions in the Penal Code in the absence of a kind of punishment intermediate between (1) imprisonment, and (2) fine. Many petty offences under the Code are committed by poorer sections of society who are not in a position to pay any fine. In consequence, the jails are crowded with short-term prisoners and all the evil effects of short-term imprisonment pointed out in my note on "Externment" operate with full force.
2. The extent of the evil of short-term imprisonment prevalent in India does not appear to have been fully appreciated even in informed circles. A scrutiny of the Report of the Administration of Criminal Justice in the State1 of Bihar during the year 1963 shows that the total number of persons sentenced to imprisonment (both rigorous and simple) in Magistrates' Court during that year was 19,038 plus 7,646-26,684. Of these, 9,340 were sentenced to terms of imprisonment not exceeding 15 days, and 15,032 to terms not exceeding six months. Thus, more than 90 per cent of the persons convicted in Magistrates' Courts in Bihar in the year 1963 were sentenced to short-term imprisonment not exceeding six months.
This figure may be taken as typical not only of Bihar, but of most of the States of India, it is reported (See my note on 'Externment') that in England the percentage of prisoners sentenced to short-term imprisonment of six months or less amounted to only 72 per cent of all prison sentences.2 In India the figure is very high indeed, and the Law Commission will be failing in its duty if it does not suggest reform of the penal law with a view to eradicating this evil of short-term imprisonment as far as possible. There can be no doubt that if there is a kind of punishment intermediate between imprisonment and fine, a substantial number of sentences of short-term imprisonment could be avoided.
1. Report of the Administration of Justice in State of Bihar, (1963), para. 6.
2. Nigel Walker Sentencing in a Rational Society, p. 125.
3. Jurists all over the world have been very much concerned with this problem, and various types of intermediate punishments have been provided in some of the foreign Codes. In the Code of the U.S.S.R.,1 the punishment known as "imposition of duty to make amends for harm caused" has been provided as one of the supplementary punishments, which may be imposed either as the only punishment or as an additional punishment for certain classes of offences. In Article 322, of that Code the nature of this punishment has been fully described as follows.-
"Article 32.-Imposition of the duty to make amends for harm caused.-Execution of the duty to make amends for harm caused shall consist in direct elimination, by one's own resources, of the harm caused, or in compensation, with one's own means, for material loss, or in a public apology before the victim or before members of the collective in a form prescribed by the court.
Punishment in the form of imposing the duty of directly eliminating, by one's own resources, the harm caused may be assigned in the event that the court, taking into account the character of the harm caused, deems that the guilty person is capable of directly eliminating it in the indicated manner.
Punishment in the form of imposing the duty to compensate for material loss may be assigned if the amount of the loss caused does not exceed one hundred rubles.
Punishment in the form of imposing the duty of publicly apologizing before the victim or members of the collective may be assigned if there has been an infringement of personal integrity or dignity or a violation of the rules of socialist communal life not causing material loss.
If the convicted person fails to fulfil his duty to make amends for the harm caused within the period established by the court, the court may replace this punishment by correctional tasks, or a fine, or dismissal from office, or social censure. In such event, and also in the event that material loss is caused is an amount of more than one hundred rubles, compensation for loss caused to the victim shall be effected by way of civil proceedings."
It will be noticed that the main advantage of this type of punishment is that it provides for the direct reparation to be paid by the offender to the injured victim by compensation either in money, labour or in kind, for the harm caused or for public apology where it may suffice.
1. R.S.F.S.R. Penal Code, Article 21(8).
2. R.S.F.S.R. Penal Code, Article 32.
4. One of the important advantages of this type of punishment is the prompt payment of reparation to the victim for the injury caused. It is one of the justified complaints against the penal law (both of Britain and India) that in criminal proceedings the injured party is generally neglected. The conviction and sentence passed on the offender may satisfy the State, which is generally responsible for initiating the prosecution; but it is poor consolation to the innocent victim of the crime. The recent White Paper1 "Penal Practice in a Changing Society" points out that "the assumption that the claims of the victim are sufficiently satisfied if the offender is punished by society becomes less persuasive as society increasingly emphasises the reformative aspects of punishment and adds the view that the concept of reparation might give 'greater moral value' to our penal system".
1. (1959) 227 Law Times, 117, 118.
In India, the victim may rely on section 545, Criminal Procedure Code for payment of compensation out of the fine imposed on the offender if and when it is realised. He may have a right of civil action against the convicted person but in view of the dilatory and costly nature of civil litigation this kind of relief is seldom sought for.
5. In ancient Hindu Law, the law-givers were fully aware of the necessity of directly compensating the victim of the crime. Thus, Manu1 in Chapter VIII, verse 287, says.-
"If a limb is injured, a wound (is caused ) or blood (flows, the assailant) shall be made to pay (to the sufferer) the expenses of the cure, or the whole (both the usual amercement and the expenses of the cure as a) fine (to the king)."
In Chapter VIII, verse 288, Manu says:
"He who damages the goods of another, be it intentionally or unintentionally, shall give satisfaction to the (owner) and pay to the king a fine equal to the (damage)."
Manu, thus, provides for direct reparation to the victim of the crime apart from payment of fine to the king (the State). In Chapter XXI, Verse 10, Brihsaspati2 says:
"He who injures a limb, or divides it, or cuts it off, shall be compelled to pay the expenses of curing it; and who forcibly took an article in a quarrel restore his plunder."
In Chapter XXII, verse 7, he says:
"A merchant who conceals the blemish of an article which he is selling, or mixes bad and good articles together, or sells (old articles) after repairing them, shall be compelled to give the double quantity (to the purchaser) and to pay a fine equal (in amount) to the value of the article."
Here also a distinction is made between imposition of fine which goes to the State and direct reparation to the victim of the crime.
1. The Laws of Manu in Sacred Books of the East, by Max Muller, Vol. 25.
2. Brihsaspati in the Sacred Books of the East, by Max Muller, Vol. 33.
6. In many other countries the victim is permitted to request the prosecution to include his claim in the criminal case against the accused. This is provided in Austria, Norway, Sweden, Spain, Colombia and Italy.1 In France, a special action known as "actione civile" can be started by the injured person, which is heard along with the criminal case against the accused.2 In Germany also, in the criminal proceedings against the accused the injured party may assert his claim in the property rights arising out of the offence.3
In my opinion, section 545, Cr. P.C. is wholly unsatisfactory, for the following reasons:
(1) Under section 545, Cr. P.C. compensation can be given only in money, to the injured party. There is no provision for direct reparation for the harm caused.
(2) The procedure involved in section 545, Criminal Procedure Code, is circuitous, dilatory, expensive and causes much harassment to the injured complainant. The court is required first to impose fine on the accused and then await its realisations. Thereafter, the injured party has to apply for withdrawal of compensation awarded to him and this procedure, as is well known in law courts in India, involves much delay and harassment and also expense in the form of illegal gratification to the subordinate court staff. It will be very rarely indeed that any aggrieved party can hope to receive the full amount of the compensation awarded to him within reasonable time.
(3) It does not cover cases of those accused persons who are unable to pay the fine. The evil effects of short-term imprisonment already pointed out persist and the complainant also may not be able to derive any advantage so far as reparation is concerned
1. "Crime and Punishmen.-Reparation to the Victim", (1959), 227 Law Times, 117.
2. Articles 2 to 4, 85 to 91, 371 to 375, 418 to 426 , 497, French Cr PC.
3. Articles 403 to 406a, German Code of Criminal Procedure.
8. Even in England, learned writers are slowly veering round to the view that apart from payment of fine, personal reparation including the undoing of the damage where possible or performance of other useful services by the convict, is desirable. I may quote the following passage in the Article "Crime and Punishmen.-Reparation to the Victim".1
"Personal reparation-linked, if necessary, to some scheme of national compensatio.-might involve revision of prison earnings and new arrangements for the supervision of offenders who are at liberty, but it would surely emphasise a man's responsibility for his own crime. It need not be confined to money payments but could be extended to undoing the damage, where possible, or performing other useful services. It would at once be just and reformative."
1. (1999), Law Times, 117, 118, 227.
9. The number of minor offences for which the convicted person may be directed to make amends directly to the victim is very high in India. Thus, taking the figures of Bihar for 1963 as how in the Report of the Administration of Criminal Justice referred to above, the number of persons convicted of the following classes of minor offences is as follows:
(Table V)
Hurt |
4,815 |
|
Wrongful restriction and wrongful confinement |
175 |
|
Criminal force and assault |
273 |
|
Theft |
7,231 |
|
Extortion |
43 |
|
Criminal missappropriation |
40 |
|
Receifpt of stolen property |
561 |
|
Cheating |
196 |
|
Mischief |
994 |
|
Criminal Trespass |
1,483 |
|
Defamation |
36 |
|
Criminal intimidation |
||
Insult and annoyance |
50 |
|
Total: |
15,897 |
|
The total number of convicted persons under the Indian Penal Code during that year was 26,050. Thus the percentage of persons convicted of minor offences was more than 60 per cent. For all these offences a sentence of direct payment of compensation to the victim of the crime could easily have been imposed. I fully realise that even if such a sentence is passed many of the convicted persons may not pay such compensation but may prefer to undergo imprisonment in default. Hence, to some extent, sentence of short term imprisonment cannot be wholly avoided. But the number of sentences can be appreciably reduced.
Some of the persons convicted of these offences may prefer to repair the damage caused to the complainant either by their own labour or by replacing the article damaged or lost, rather than go to jail. Moreover, the injured victim may be sufficiently recompensed without the circuitous procedure of awaiting the realisation of fine and payment of compensation. In my opinion, this will be a distinct improvement on the existing law and I would advocate this reform notwithstanding any pessimism that may be entertained in some quarters about its efficacy. I am suggesting below a draft of sections 70A and 70B:
"70A. (1) In the case of conviction for an offence against the human body, and offence against property, defamation or an offence against privacy, the court may direct that the person convicted shall pay compensation to the person mentioned in sub-section (4).
(2) Such compensation need not necessarily be monetary and it may be in any form which the court considers to be a sufficient recompense to the injured party. But while passing the order for compensation, the court shall estimate its monetary value for the purpose of execution of the order.
(3) A court shall not, under this section direct payment of compensation whose monetary value exceeds the amount of fine which it is empowered to impose.
(4) An order under sub-section (1) may be mad.-
(a) in addition to any other punishment to which the person convicted may have been sentenced;
(b) in substitution of fine, where the offence, not being a capital offence, is one punishable with fine.
(5) The compensation under this section may be directed to be pai.-
(a) to any person -who has incurred expenses in prosecution, for defraying, expense properly incurred;
(b) to any person for any loss or injury caused by the offence, when compensation is, in the opinion of the court, recoverable by such person in a civil court;
(c) in the case of a conviction of any offence for having caused the death of another person or of having abetted the commission of such an offence, to the persons who are, under the Fatal Accidents Act, 1855, entitled to recover damages from the person sentenced, for the loss resulting to them from such death; or
(d) in the case of a conviction for any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, to any bona fide purchaser of such property, for the loss of the same, if such property is restored to the possession of the person entitled thereto.
(6) At the time of awarding compensation in Any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section.
70B. (1) In every case in which the offender is sentenced to payment of compensation under section 70A, it shall be competent to the Court which sentences such offender, to direct by the sentence, that in default of the payment of compensation, the offender shall suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence.
(2) The provision of sections 65 to 70 (of the Indian Penal Code) shall, after substitution of references to compensation or its monetary equivalent in place of references to fine, apply in relation to imprisonment in default of payment of compensation, as they apply in relation to imprisonment in default of payment of fine."
10. If this suggestion is accepted, consequential provisions will have to be made in the Criminal Procedure Code also for execution of this type of sentence. Section 545 of the Criminal Procedure Code may be omitted altogether and new sections 388A, 388B and 388C, as shown below, may be inserted in the Criminal Procedure Code:
"388A. (1) Whenever an offender has been sentenced to pay compensation under section 70A of the Indian Penal Code, the Court passing the sentence shall order the payment of compensation to the person concerned within a specified period. If the said compensation is not paid within that period or within such further period as may be extended by the Court, the Court, shall, subject to the provisions of sub-section 2, take the same action for recovery of compensation as it could take for recovery of the fine under section 386 of the Code of Criminal Procedure, 1898, and the provisions of sections 386 and 387 of the Code shall, after substitution of references to compensation in place of references to fine, apply for the purpose as they apply for the recovery of the fine.
(2) Proceedings for recovery of compensation as indicated in sub-section (1) shall be taken up by the court only on the application of the person in whose favour the order for compensation was passed. Such an application shall be filed within one month of the last date of the period specified for payment of compensation. If such an application is not filed within the time so fixed, the right of the person to receive the compensation shall be extinguished.
388B. When an offender has been sentenced only to pay compensation under section 70A of the Indian Penal Code, or to pay such compensation and fine and to imprisonment in default of payment of compensation, and the compensation is not paid within the date ordered by the Court, the Court may suspend execution of the sentence of imprisonment by passing the same orders as it could under sub-section (1) of section 388 (of the Code of Criminal Procedure, 1898) if the offender had been sentenced to fine only; and the provisions of sub-section (1) of that section shall, after substitution of references to compensation in place of references to fine, apply for the purpose as they apply in case of a sentence of fine.
388C. For the purpose of section 388 (of the Code of Criminal Procedure, 1898), an offender sentenced to pay compensation under section 70A of the Indian Penal Code and to fine, shall be deemed to be an offender who has been sentenced to fine only."
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