Report No. 42
3.21. Public censure appropriate for certain anti-social offences.-
Another punishment, which we included in our questionnaire, and considered in the light of opinions expressed, was publication of the name of the offender and details of the offence and sentence, or briefly, public censure. There are certain.anti-social offences committed by persons belonging to the richer and more sophisticated sections of society in regard to which this punishment would appear to be particularly appropriate. While these offences affect a large number of people, the offenders are not readily brought to book. In such cases public censure is likely to act as a greater deterrent than-fine or even imprisonment. The fear of infamy resulting from the publicity given to their misdeeds and consequent loss of business should deter the offenders more effectively than the usual punishments under the Code.
3.22. Ancient Indian preceden.-Narada Smriti.-
In ancient India, public censure with degradation in some form was laid down as a suitable punishment for certain classes of offenders. Thus, the Narada Smriti, believed to have been composed in the sixth century A.D., prescribes for a Brahmin guilty of a violent crime (sahasa) that "shaving his head, banishing him from the town, branding him on the forehead with a mark of the crime of which he has been convicted, and parading him on an ass, shall be his punishment."1 Apart from the degrading form given to the punishment which may not be acceptable to modern notions, the underlying idea of publicly administering social censure to the offender is worth noting.
1. Sacred Books of the East, Vol. 33, Ch. 14, Sloka 10.
3.23. Modern precedents.-
Quite a few penal codes of the present day provide for the giving of publicity to the fact of conviction and sentence. Thus, the Columbian Penal Code provides for "special publication of the sentence as an accessory to penal servitude or imprisonment". The publication is made in an unofficial periodical of the township in which the offence was committed or the convicted person resides. It is made at the expense of the convicted or injured person; and if he fails to pay the cost, it is done by proclamation.1
Social censure is one of the prescribed punishments in the U.S.S.R. According to the Russian Penal Code, "social censure shall consist a public expression by the court of censure of the guilty person and, if necessary, in bringing this to the notice of the public through the press or other means".2
1. Columbian Penal Code, Articles 42, 52 and 54.
2. RSFSR Penal Code, Articles 21(9) and (33).
3.24. Indian precedents.-
In India, this form of punishment has been recognised by Parliament in the Prevention of Food Adulteration Act, 1954. Under section 16(2), "if any person convicted of an offence under this Act commits a like offence afterwards, it shall be lawful for the court before which the second or subsequent conviction takes place to cause the offender's name and place of residence, the offence and the penalty imposed to be published at the offender's expense in such newspapers or in such other manner as the court may direct". A similar provision for publishing the name of a defaulting assessee is made in section 287 of the Income Tax Act, 1961.
3.25. New section 75.-recommended.-
We consider that this additional punishment will be useful in the case of persons convicted for the second time of any of the following offences punishable under the Penal Code.-
(i) offences relating to currency notes, coin and stamps (chapter 12);
(ii) offences relating to weights and measures (chapter 13);
(iii) adulteration of food and drugs (sections 272 to 276);
(iv) extortion (sections 383 to 399);
(v) criminal misappropriation and breach of trust (sections 403 to 409);
(vi) cheating (sections 415 to 420);
(vii) offences relating to documents (chapter 18).
We recommend the addition of a new section 76A as follows.-
"76A. Public censure for certain offences after previous conviction:
(1) When any person, having been convicted by a Court in India of an offence specified in sub-section (3), is convicted of a like offence, it shall be competent to the Court before which the conviction takes place, "to cause the offender's name and place of residence, the offence and the punishment imposed to be published at the offender's expense in such newspapers or in such other manner as the Court may direct."
(2) The expenses of such publication shall be recoverable from the offender in the same manner as a fine.
(3) The offences to which sub-section (1) applies are any offences punishable under chapter 12, chapter 13, sections 272 to 276, sections 383 to 389, sections 403 to 409, sections 415 to 420 or chapter 18 of this Code."
Confiscation, in the sense of forfeiture to the State of all property belonging to the criminal, was provided for in the Indian Penal Code for a few offences. Thus, under section 124, as originally enacted, "whoever wages war against the Queen shall be punished with death or imprisonment for life, and shall forfeit all his property". It was further provided in section 61 that, in such a case, "the offender shall be incapable of acquiring any property, except for the benefit of government, until he shall have undergone the punishment awarded or the punishment to which it shall have been commuted, or until he shall have been pardoned."
Then, under section 62, "whenever any person is convicted of an offence punishable with death, the Court may adjudge that all his property, movable and immovable, shall be forfeited to Government." These draconian punishments were repealed in 1921 and, since then, forfeiture as a punishment is limited to specific propert.-usually property connected with, or acquired by means of, the crim.-and retained only for three offences under the Code.1
It is of interest to find that the Code of Manu prescribed confiscation (sarva-haranam) for those traders who out of cupidity took away for export goods and animals of which the king had a monopoly, or of which the export was prohibited. The commentator Kullooka Bhatta gives elephants and horses as examples of the first category and grain during a famine as an example of the second.2
Of the opinions expressed on the question whether this punishment should be reintroduced in the code, there were not many in favour. We are also of the view that this harsh punishment, which will fall not only on the criminal but also on his dependent family, is not to be commended.
1. See sections 126, 127 and 169.
2.Manu Smritih, Ch. 8, SI. 399.- rajnah prakhyata-bhandani pratishiddhani yani chatani nirharatio lobhat sarvaharanam haren-nripah.
3.27. Minimum sentence.- We included in our questionnaire the following question:
"The Code lays down only the maximum punishment for offences, and no minimum punishment except in very few cases. Are you in favour of laying down a minimum term of imprisonment for any offences? If so, for what offences?"
3.28. Present position in Indian legislation.-
There are only five sections in the Penal Code which prescribe a minimum penalty. Waging war against the State (section 121) and murder (section 302) are punished with death or imprisonment for life. Under section 303, a person committing murder while undergoing a life sentence has to be sentenced to death. A minimum sentence of seven years' imprisonment is provided in section 397 for a dacoit or robber using a deadly weapon, or causing or attempting to cause grievous hurt, and in section 398 for a dacoit or robber being armed with a deadly weapon.
But, as noticed by the Law Commission in a previous Report, "during recent years, several enactments have been passed by the State Legislatures or Parliament providing for minimum sentences. It is true that in some of these enactments the discretion of the court has not been completely fettered. Though the section provides for a minimum sentence, the court has been given the liberty, for sufficient reasons to be recorded, to award a lower sentence".1
Instances of such legislation are section 5 of the Prevention of Corruption Act, 1947 (as amended in 1958), the Prevention of Food Adulteration Act, 1954, the Suppression of Immoral Traffic in Women and Girls Act, 1956, and the Bombay Prohibition Act, 1949. The principal reason for such provisions "appears to be a feeling that courts seldom award sentences which would have a deterrent effect, particularly in certain types of offences which are necessary to be dealt with sternly in the interests of society."2
1. 14th Report, Vol. II.
2. 14th Report, Vol. II.
3.29. Position in other legal systems.-
While in the Anglo-Saxon legal system, minimum punishment is seldom prescribed by statute, the penal codes of many European countries lay down upper and lower limits for punishments in many cases. The usual formula in these codes is to say that the offence is punishable with confinement in a penitentiary (or jailing) for a term of x to y years. These codes, however, usually contain provisions enabling the court to pass sentences lower than the prescribed minimum in extraordinary cases or for special reasons.
3.30. Minimum sentence not desirable save in exceptional cases.-
Most of the opinions expressed on the question were strongly opposed to laying down any minimum punishment. In particular, members of the judiciary at all levels regard any such amendment as totally unnecessary. Some of them are not happy about the working of the provisions made in special laws for imposing a minimum- sentence.
The Law Commission in a previous Report observed:.-
"The determination of what should be the proper sentence in a particular case has always been left to the court for the very weighty reason that no two cases would ever be alike and the circumstances under which the offence was committed and the moral turpitude attaching to it would be matters within the special knowledge of the court which has tried the case. There can be no rule of general application laying down a specific quantum of punishment that should be inflicted in the case of a particular offence. A sound judicial discretion on the part of the trial judge in awarding punishment can alone distinguish between case and case and fit the punishment to the crime in each individual case.
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However, the placing of restrictions on judicial discretion in the matter of the award of a sentence >, on principle, to be deprecated as a general practice. Instances might have occurred occasionally where judges have failed to award sentences proportionate to the gravity of the offences. This cannot, however, warrant the assumption that the judiciary as a whole has failed to award adequate sentences or overlooked the need for passing deterrent sentences in appropriate cases."
We agree with the above view and consider that, save in exceptional cases, there should not be any provision for minimum sentences in the Penal Code.