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Report No. 156

Chapter II

Sentences and Sentencing - Policies & Procedure

13.05. 1. In the context of fast changes in the socio-legal scenario warranting application of the reformative theory of punishment, it is necessary to modify provisions of the BORSTAL School Act, 1970, Juvenile Justice Act, 1986 and Probation of Offenders Act, 1958 suitably.

(Para. 2.05)

2. In the Indian Penal Code, the offences are divided into bailable and non-bailable depending upon the gravity of the offence. About 120 offences in the Indian Penal Code are non-cognizable. It is voiced that some trivial offences affecting public order also can lead to serious developments if they are not dealt with promptly and, therefore, it is desirable that such offences are made liable for public intervention.

It is recommended that the offences punishable under sections 290, 298, 431, 432, 434, 504, 505 and 510 be made cognizable.

(Para. 2.06)

3. The amounts of fine to be imposed should considerably be enhanced and it should, as far as possible, be substituted for short-term imprisonment. Further, the poor victims of uses and abuses of criminal law should be compensated by way of reparation and that the amounts of fine prescribed long ago have lost their relevance and impact in the present day and the fines imposed have no relation to the economic structure of society and necessary element of deterrence is generally absent.

An examination of the various sections in the Code where sentence of fine, is provided for, reveals that from a minimum fine of Rs. 100 it varies up to Rs. 1,000. In respect of most of the offences it is below Rs. 500.

Therefore, a change regarding the quantum of fine should be made in all those sections correspondingly, at least by 20 times and make a provision in the Code of Criminal Procedure regarding the powers of the First Class Magistrates to impose such a fine.

(Para. 2.09)

4. The proposed amendment vide clause 18 of the I.P.C. (Amendment) Bill, 1978 making imprisonment for life rigorous, that is, with hard labour, is necessary.

(Para. 2.11)

5. Clause 27 of the I.P.C. (Amendment) Bill, 1978, provides the insertion of a new section 74A exclusively to deal with punishment of community service. It means that convict will have to perform the service without any remuneration. The implementation part of it provides that the work is to be performed under proper supervision as per arrangements to be made by the State Government or any local authority.

The Commission felt that there are a number of difficulties in enforcing the same like that supervisory authority will have to see whether the convict is working and rendering service for the number of hours specified and if he falls to do so by way of default, he has to be sentenced thereafter.

Therefore, we think an open air prison system is better suited from the point of view of correctional measures rather than the proposed punishment of community service.

(Para. 2.13)

6. Another suggestion was whether the punishment "disqualification from holding office" should be incorporated in section 53 of the Indian Penal Code. In some types of cases particularly involving public servants and other ,persons holding office in corporations, companies, registered societies, etc., ending in conviction should necessarily entail with the disqualification from holding office, but such a course is intrinsically connected with the irrespective service rules and regulations. It is a matter of common knowledge that in almost all such service rules we find some provision or other disqualifying such a person after conviction, from holding the office.

It is recommended that it would be appropriate to leave the issue to be decided by the concerned authorities under all those rules and regulations because incidentally some other questions pertaining to the service conditions may also arise which warrant a further inquiry.

(Para. 2.14)

7. The Law Commission in its 154th Report on the Code of Criminal Procedure has recommended insertion of a new provision, namely, 357A providing for framing victim compensation scheme by the respective State Governments under which the compensation can be awarded to the victims on the lines indicated therein wherever it is found to be necessary apart from the compensation awarded by the court under section 357 out of the fines. We may also indicate that awarding sufficient compensation depends upon many circumstances which require some inquiry. Further in some cases an order for payment of compensation need not necessarily be by way of punishment.

Therefore, we are of the view that it is not appropriate to include order for payment of compensation in section 53 by way of punishment.

(Para. 2.16)

8. Another punishment which is sought to be included in section 53 is 'public censure', namely, publication of the name of the offender and details of the offence and sentence. The proposed section 74C provides for imposition of the punishment by way of public censure in addition to the substantive sentence under sub-section (3) and this is limited to offences mentioned in Chapters XII, XIII, sections 272 to 276, 383 to 389, 403 to 409, 415 to 420 and offences under Chapter XVIII of the Code as offences under proposed new sections 420A and 462A under the Indian Penal Code (Amendment) Bill, 1978.

These are all offences where persons entrusted with some public duties commit offences. Such a punishment has great relevance in respect of anti-social offences, economic offences, otherwise called white-collar offences particularly committed by sophisticated persons. It is of common knowledge that while these offences affect a large number of people, the offenders are not readily booked. However at least in such cases which end in conviction, the punishment of public censure is likely to act as a greater deterrence because of the fear of infamy resulting from the publicity and consequent repercussions like loss of business, etc.

Such a censure is one of the prescribed punishments in Russia, Columbia and other countries. In India such form of punishment is included in the Prevention of Food Adulteration Act and Income-tax Act. The Law Commission in its 42nd Report considered the inclusion of such a punishment and recommended that such additional punishment would be useful in the case of persons convicted for the second time of any of the offences under chapter XII and XIII, like extortion, criminal misappropriation, cheating and of offences relating to documents.

It is recommended that such public censure by way of an additional punishment should be there and accordingly be included in section 53 of the Indian Penal Code and it should be left to the discretion of the court regarding imposition of the same in selective cases.

(Para. 2.16)

9. In respect of number of offences the punishment prescribed is "Imprisonment or with fine or with both". It is voiced in various workshops that in view of the changes in the modern society, the type of crimes and the repetition of those crimes or the frequent occurrence of certain types of crimes, it is necessary that the punishment should be imprisonment and in addition fine also.

Having examined various provisions in the I.P.C. and the modern trends of crime, we are of the view that in respect of the offences under sections 153, 153A, 160, 166 to 175, 177, 182, 221, 269 to 291, 292, 294 to 298, 336, 465 and 477A, the punishment should be imprisonment as well as fine. Incidentally, we also suggest that the extent of imprisonment should be enhanced suitably in respect of these offences.

(Para. 2.17)



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