Report No. 42
Principles of Punishments to be provided in the Penal Code
In the new Criminal Procedure Code recommended by us we have specially provided for the hearing of the accused on the question of sentence by a court before passing sentence according to law. See draft sections 241(2) and 256(2). It seems therefore desirable to formulate in the Penal Code the main principles to be borne in mind by a court while passing sentence on a convicted person. The necessity for such formulation arises mainly because it is notorious that in India the Magistracy is not fully conversant with the principles of punishment.
It is true that these principles have been repeatedly laid down by the High Court and the Supreme Court in several decisions. But these are not available in a convenient form for the benefit of the trying Magistrates. In the Draft German Penal Code of 1962, Article 60(2) laid down the various matters to be considered by a court in fixing the punishment and they are reproduced below:
"(2) In fixing a punishment the court shall weigh against each other such circumstances, other than definitional elements, as speak for and against the perpetrator.
Especially there shall be considered:
the motives and aims of the perpetrator;
the state of mind which the act be speaks and the exercise of volition involved;
the extent of breach of duty;
the manner of perpetration and the wrongful effects of the act;
the prior life of the perpetrator, his personal and economic circumstances, as well as his conduct after the act, especially his endeavour to make restitution."
In Argentinian Penal Code also Articles 40 and 41 which are relevant on the subject may be quoted:
"40. In the case of punishments divisible as to time and amount, the Court shall determine the sentence in accordance with the mitigating and aggravating circumstances of each particular case, under the provisions of the next following article.
41. To effectuate the preceding article, the following shall be taken into consideration:
(1) The nature of the deed and the means employed in its commission, as well as the extent of the damage and danger created thereby.
(2) The age, education, habits and previous conduct of the individual, the nature of the motives which lead him to commit the crime, especially his poverty or his difficulty to obtain the necessary sustenance for himself and his family, the extent of his participation in the deed, his criminal and his personal record, as well as his personal relations, i.e. the character of the persons and the circumstances of time, place, occasion and others, which may indicate his greater or lesser dangerousness.
The judge shall take direct and visual cognizance of the subject, the victim and the factual circumstances to the extent necessary for each case."
The main advantages of inserting a similar provision in the Penal Code are these.-
(1) The trying court's attention is prominently drawn to the principles of punishment so as to enable the court to properly discharge the duty conferred on it by Draft Articles 241(2) and 256(2) of the Criminal Procedure Code.
(2) Both the prosecutor and the defence counsel get due notice of the matters that will be taken into consideration in imposing sentence and this enables them to collect the necessary materials for making their submissions on this point.
I, therefore, recommend that at the end of Chapter dealing with punishment, Chapter 3, a new section 75A may be inserted as follows.-
"75A. In fixing a punishment the court shall take into consideration, amongst others, the following matters.-
(1) The motives and aims of the perpetrator.
(2) The state of mind of the perpetrator at the time of the commission of the crime.
(3) The extent of breach of duty, if any.
(4) The manner of commission of the crime and the wrongful effects of the crime.
(5) The nature of the deed and the means employed in its commission.
(6) The age, education, habits, previous conduct of the perpetrator, his personal and economic circumstances and the extent of his participation in the deed.
(7) His conduct after the commission of the crime, especially his endeavour to make restitution and to help the authority in tracing out his accomplices."
Judicial Pardon or Expunging or Cancellation of Conviction
The positive school of crime and punishment has been strongly advocating the principle of complete rehabilitation of a convict under certain conditions. The necessity for such rehabilitation arises because conviction in a criminal case carries with it a certain stigma which persists throughout the life of the person even though he might have turned from his criminal activity and taken to legitimate activity and led an exemplary life. It also carries with it certain penalties and disabilities which persist so long as the conviction remains on record. In a very illuminating article entitled "Criminal Law in the Seventies, Some Suggestions" (published in the New York State Bar Journal, June, 1970), James V. Brands, who is an Assistant District Attorney of Dutchess County, New York, stated:
"It has been estimated that at one time or another throughout their lives approximately 91 per cent. of our adult population have committed crime for which they could be sent to jail. We might consider that those in prison are to some degree only the unlucky ones, the failures are those without money for adequate counsel. In that light, an understanding that of all those convicted of misdemeanours he who leads a life free of convictions for five years thereafter should have his first conviction dropped from the record.
This should be allowed to the extent that he can answer no to any question on a Questionnaire asking whether he has been convicted or arrested for a crime."
The well-known international jurist of Norway, Johannes Andenaes, in his book "The General Part of the Criminal Law of Norway", p. 79, has commented on this subject as follows.-
"According to modern views, the resocialization of the convict must be accorded the greatest significance. Both purely humanitarian and social considerations make it clear that one who has served his sentence should be helped to his feet again. Of course, the traits which he has revealed by his offence may be of such a nature as to require that certain cautions be taken. But within these limits he should be allowed to support himself in an honest way and to regain his lost respect."
This subject has been dealt with in an article "Rule of Law in Criminal Justice" by Helen Silving who has been acclaimed as the "first lady of modern criminal law" by G.O.W. Mueller in his "Essays in Criminal Science." She observed at p. 139 ibid:
"Retribution implying 'rehabilitation', a limit should be set to the legal and social disabilities attaching to a 'criminal record'. After lapse of a certain period, unless there is reincidence, the conviction should be completely erased from the record, so that no one be permitted to disclose the fact of such conviction in any context and that the person concerned need never admit it to anyone, including state authorities. When probation is granted and is successful, certain convictions should be deemed never to have occurred (French system).
When probation is denied on grounds not connected with the actor's guilt provision should be made to afford him appropriate relief against the disadvantage of such denial. Finally, reports of criminal cases should not disclose the name of the defendant. Such disclosures, particularly in small communities, is highly prejudicial to the defendant throughout his life. It also adversely affects innocent family members."
In P.G. Fitzgerald's Criminal Law and Punishment, Clarendon Law Series, p. 204, the learned author points out:
"There is, however, a valuable claim concealed in the notion of expiation, namely, the idea that the wrong-doer who has been punished has by paying his debt wiped the state clear for a fresh start; and this claim is worth pressing in the face of practical consideration which operate to prevent the criminal making a fresh start. The known fact that a man has been convicted, the stigma of a prison sentence, together with various other factors make it impossible for his start to be entirely fresh, but in so far as the notion of expiation involves the demand for a possibility for such a start it goes hand in hand with the demand for reformation and rehabilitation."
The Hindu jurists also have laid down that once a person has been punished for an offence he becomes completely pure like a sinless person. Manu, Chapter 8, Sloka 318, enunciates the principles of rehabilitation of convicts in the following manner.-
(But men who have committed crimes and have been punished by the King go to heaven being pure like those who performed meritorious deeds.)
Kulluka Bhatta (15th century) the great commentator on Manu, while commenting on this verse says:
(Having committed crimes such as theft of gold etc., the criminal after undergoing the punishment inflicted by the King becomes pure just like a person who has done good deeds (sadhus) and goes to heaven. It is indicated that the punishment purifies the criminal and absolves him from all sin in the same manner as expiation ceremony).
Again in the XIth Book, in Sloka 189, Manu says:
(Let him not transact any business with unpurified sinners but let him in no way reproach those who have made atonement.)
While commenting on this, the famous commentator Medhatithi (early 10th century) says:
(Expiation is purification, wiping off of the sin. When this has been done, one should not despise the men. That is, no one should reproach one who has duly performed the prescribed expiation).
Kulluka Bhatta also says:
(Once a person has expiated for his sin, he should never be despised for his sin, but he should be treated in the same manner as he was treated before he committed the sin.)
It is thus clear that Manu condemns the action of those persons who despise and reproach those unfortunate people who after having committed crimes have undergone the prescribed punishment. Though Manu Smriti might have been written at the commencement of the Christian era (the exact date is not known), nevertheless the fact that commentators like Medhatithi (early 10th century) and Kulluka Bhatta (15th century) reiterate the view of Manu on this point, shows that the Hindu law-givers took a very humane view of punishment and emphasised that after the purification ceremony either by expiation or punishment the offender should be completely rehabilitated into society without any stigma attached to him.
The aforesaid view of distinguished jurists on the principle of rehabilitation of a convict has now been recognised in the international covenant on Civil and Political rights which was passed unanimously by the General Assembly of the United Nations on the 16th December, 1966. Article 10.3 of the Covenant (already quoted) says that the primary aim of the treatment of prisoners should be their reformation and social rehabilitation. The subject has thus now passed beyond the stage of mere discussion or controversy and the question for law reformers all over the world (including the Law Commission here) is only one of how to implement this resolution.
It will be useful to study the provisions in the Penal laws of some of the countries of the world where this principle has been given legislative recognition.
Thus in the California Penal Code, p. 1203.4:
"Even defendant who has fulfilled the conditions of his probation... shall at any time thereafter be permitted by the Court to withdraw his plea of guilty and enter a plea of not guilty; or if he has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and in either case the court shall thereupon dismiss the accusations or information against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offence or crime of which he has been convicted provided, that in any subsequent prosecution of such defendant for any other offence, such prior conviction may be pleaded and provided and shall have the same effect as if probation had not been granted or the accusation or information dismissed."
In para. 1203, it is provided that probation, however may not be granted to inter alia, any defendant:
"convicted of robbery, burglary, burglary with explosives, rape with force or violence, arson, murder, assault with intent to commit murder, commit murder, train wrecking, kidnapping, escape from a state prison, conspiracy to commit any one or more of the aforementioned felonies."
In the Yogoslav Criminal Code [article 87(2)1 the court is given power on the application of the convict after lapse of a specified period to order the removal of all legal consequences arising out of his conviction provided the convict has deserved it by reason of his behaviour. Article 88 further says that some sentence may be expunged from the criminal record provided the convict does not commit a fresh criminal offence within five years of the date on which the punishment has been served.
In the German Penal Code, 1875, section 25, permits the court to pass an order restricting information about the conviction of a convict if his conduct is found to be exemplary. This has been described as "Judicial Pardon".
In the French Criminal Procedure Code also there is a separate chapter entitled "Rehabilitation of Convicts" (Book Five, Title Nine) where detailed provisions for complete rehabilitation of a convict under certain conditions have been made and the effect of such rehabilitation is mentioned as follows in Article 799. "The rehabilitation shall wipe out the conviction and cause all the incapacities that result from it to cease for the future".
In the Criminal Law and Procedure of Russian Soviet Federated Socialist Republics, Article 57 provides for cancellation of the record of conviction of certain classes of offenders by a court under certain conditions. Similarly in the Japanese draft Penal Code also there is a separate section (article 108) dealing with the subject of extinguishments of sentences.
In India there is no such power with the court of justice to wipe out the stigma of conviction. It is true that in the Criminal Procedure Code, section 562, permits the suspension of a sentence in the case of first offenders. The probation of Offenders Act also permits the court to release a person after conviction without sending him to jail. But these provisions are of restricted application and deal with the problem of rehabilitation in, a half-hearted way. The court has no power to completely obliterate the conviction and to remove the stigma arising out of it. This power is conferred only on the executive by the right of pardon conferred by Article 72 (for the President) and Article 161 (for the Governors of States).
This power of pardon is generally exercised on political or quasi-political grounds and cannot be claimed as of right. Hence a person who through sudden temptation commits a crime and afterwards sincerely repents for the same, undergoes the full penalty of law and thereafter leads,a blameless life cannot wipe out the stigma during his lifetime except by asking for pardon and dePending on the whims of the executive. Under Explanation (2) to section 54 of the Indian Evidence Act, his previous conviction is evidence of bad character and can be brought on record to discredit him.
Then again, there are certain statutes such as the Passport Act, the Representation of the People Act and the Municipalities Acts of certain states which impose statutory disabilities for a certain period on persons who are convicted and sentenced to imprisonment. Apart from these statutory disabilities, for many public appointments, the applicant is specifically asked to disclose whether he was previously convicted or not and the conviction will always be used as a circumstance for rejecting his application.
In my opinion, bearing in mind the covenant of the United Nations Organisation to which India is a party there should be a provision in the Penal Code itself conferring a right on a convict (subject to certain conditions and restrictions) to apply to the court for judicial pardon or cancellation or expunging of the conviction. The scheme in its broad outlines may be as follows.-
(1) Expunging of conviction should be available whether the sentence is one of imprisonment or fine or both.
(2) The jurisdiction will be on the court which passed the original conviction or its successor in office.
(3) The right of the convicted person to apply for such expunction will arise after the expiry of the period mentioned below, from the date of payment of fine or the date of release from imprisonment:
Imprisonment for not more than one year
Imprisonment for not more than five years
Imprisonment for five years or more
(4) In considering the application for expunction of the conviction, the court will take into consideration the following facts arrd circumstances:
(a) That this is the convict's first conviction;
(b) That his previous behaviour has been good;
(c) That his character, the nature and circumstances of the crime and the determining motives therefore are such as to convince the Judge that the person to enjoy this benefit is not dangerous to society and that he will not revert to crime.
(5) If after the expunction of the conviction the convict is convicted on another offence during one half of the period mentioned in para. (3), the order of expunction shall stand cancelled.
(6) The effect of such expunction of the conviction shall be as follows:
(a) No court or authority shall take notice of the conviction expunged notwithstanding section 75 Indian Penal Code and similar provisions in other laws (See Explanation 2 to section 54 of the Evidence Act.)
(b) Notwithstanding anything to the contrary in any other law for the time being in force, the convicted person shall not be bound to disclose his conviction to any person or authority.
Consequential provisions will have to be made in the Criminal Procedure Code also dealing with the procedure to be followed by the Court while disposing of an application for expunging conviction. There should be provision for notice to the Public Prosecutor and also to the Private Prosecutor, if any, and to the party aggrieved by the commission of the offence. The order should be made appealable. Article 370 of the Soviet Criminal Law and Procedure may be taken as a guide for this purpose.