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Report No. 156

Chapter II

Sentences and Sentencing - Policies and Procedures

2.01. A healthy administration of criminal law is essential for a proper functioning of the constitutional democracy. It is the criminal law that protects the society from the intentional and culpable acts of individuals or group of individuals. Criminal law also prescribes many preventive measures for, it is well-settled that prevention is better than cure. However, we have to refresh our views on the problems of crime and its punishment keeping abreast with the fast developments all around.

2.02. The purpose which punishment achieves or is required to achieve are four-fold.1 First, retribution; i.e. taking of eye for eye or tooth for tooth. The object behind this is to protect the society from the depredations of dangerous persons; and so, if somebody takes an eye of another, his eye is taken in vengeance. This form of punishment may not receive general approval of the society in our present state of social conditions and understanding of human psychology.

The other purpose of sentencing is preventive. We are sure that the sentence of imprisonment suffered would be an eye opener to the convict and he would definitely not venture to repeat the illegal act again.

Deterrence is another object which punishment is required to achieve. Incarceration of sentence undergone by the convict and upholding of his conviction by Court is likely to have its effect, and should deter others from indulging in similar illegal acts.

As against the retributive, deterrent and preventive theories of punishment, the reformative approach to punishment as a measure to reclaim the offender lays emphasis on rehabilitation so that the offenders are transformed into good citizens.

The various theories have been reviewed from time to time. The theory of expiation and the theory of retribution have faded out. Some jurists also have their own doubts about the theory of deterrence. They doubt whether there is something inherent in it which is aimed at the protection of society.

1. Dr. Jacob George v. State of Kerala, 1994 (2) Crimes 100

2.03. Coming to the question of abolition of death sentence which we will examine in the next chapter, it is reasonably felt that the deterrence does work in appropriate cases depending on circumstances and it cannot altogether be eliminated in the administration of criminal Justice. There are certain types of offences for which deterrent sentence is necessary. The growing menace of economic offences does warrant awarding deterrent sentence and a minimum sentence of imprisonment should be made compulsory. We find such provisions in certain enactments dealing with economic offences.

But at the same time there are certain offences which, when examined in the background of circumstances, do not attract deterrent sentence. In the case of juvenile delinquency, it is the reformative theory that has gained significant recognition. By a systematised reformation, the juvenile offenders can successfully be prevented from resorting to criminal activities and the tendency towards crime can be curbed. If they are left untouched they may prove to be greater menace to the society by becoming hardened criminals as they get mentally developed. It is on the mental development that the reformative theory lays its stress.

2.04. Now coming to the other types of offences against person and property, the provisions of the Indian Penal Code have fairly stood the test of time in the matter of awarding punishment. Depending upon the gravity of the offence the punishment varies. It is generally felt that too lenient a sentence does not meet the ends of justice. But the courts are seen generally reluctant to award always a. severe sentence. Therefore, it is well-settled that the punishment is an art which involves the balancing of several factors.

It is accepted that punishment is only the manifestation of crime, the second half of which is necessarily pre-supposed in the first, and the deed of the criminal Judges itself. The State as the punishing authority never thinks in terms of retribution and old notion of retribution has no place in the modern world. Our penal Laws, particularly the Indian Penal Code, gives latitude to the court in awarding the prescribed sentence.

In the matter of infliction, the punishment as a deterrent is expected to serve twofold purpose - individual and general. The object is to teach the offender a lesson and at the same time to demonstrate to the public that such offences would attract a severe punishment. Deterrence does work, but it may not be correct to presume that it works well in all circumstances and in all cases.

2.05. Our system recognises reformative theory also. The Borstal School Act, 1926; The Juvenile Justice Act, 1986; and The Probation of Offenders Act, 1958 are some of the enactments which reflect the reformative approach. Caldwell observes thus:

"Punishment is an art which involves the balancing of retribution, deterrence and reformation in terms not only of the court and the offender but also of the values in which it takes place and in the balancing of these purposes of punishment, first one and then another, receives emphasis as the accompanying conditions change."1

It is generally felt that punishment under the Indian Penal Code needs review. The sentence of 14 years as it works out ultimately in the case of sentence for murder, is considered to be low and lenient. Likewise, the sentences in respect of certain offences against property are considered to be not commensurating with the degree of crime like cheating and forgery, particularly committed in respect of the public institutions. So far as the economic offences are concerned, it is universally accepted that severe and deterrent sentences should be awarded.

Illogical and unreasonable variations in punishment have brought the courts under criticism. To enable the court to arrive at a correct determination of punishment, it is essential that all the information about the antecedents of the accused should be there. There are so many relevant factors in determination of the quantum of sentence. So far as habitual offenders are concerned, section 75 of the I.P.C. provides for enhanced punishment of imprisonment.

Many eminent jurists have pointed out that when the discretion is given to the judges in the matter of awarding punishment and for an effective exercise of such a discretion, the judge has to resort to the additional fact-finding processes.

Therefore, a time has come to consider whether an independent authority like Probation Officer should be required to gather the necessary information about the accused and which information should be made available to the judge before awarding punishment to that individual accused. Having regard to the fast changes in the society and social thinking, it has also become necessary to modify the provisions of the Borstal Schools Act, 1926, Juvenile Justice Act, 1986 and Probation of Offenders Act, 1958 suitably.

1. Caldwell Criminology, p. 403, cited R.C. Nigam Law of crimes in India Principles of Criminal Law, vol. 1 p. 232.

2.06. A survey of the provisions of the Indian Penal Code reveals that out of 511 sections in the Indian Penal Code, 330 are punitive provisions, the remaining being definitions, exceptions and explanations. The offences covered by these punitive provisions are broadly divided into two categories- (i) cognizable, and (ii) non-cognizable on the lines of arrestable and non-arrestable.

In our law the Police are prohibited from investigating the non-cognizable offences mainly on the ground that most of them are trivial. The offences are then further divided into bailable and non-bailable depending upon the gravity of the offence. About 120 offences in the Indian Penal Code are non-cognizable.

In many workshops it was pointed out that this division requires to be re-examined in the context of rapid social changes and that some of them should be made 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.

We are of the view that such a re-examination is necessary and the offences punishable under sections 290, 298, 431, 432, 434, 504, 506 and 510 should be made cognizable.

In section 53 Indian Penal Code, the punishments that can be imposed are mentioned. Section 53 is in the following terms:

"53. Punishments.-The punishments to which offenders are liable under the provision of this Code are-

First, - Death;

Secondly, - Imprisonment for life;

Thirdly, - (Replaced* by Act 17 of 1949);

Fourthly, - which is of two descriptions, namely:-

(1) Rigorous, that is, with hard labour;

(2) Simple;

Fifthly, - Forfeiture of property;

Sixthly, - Fine."

* It seems to be a misprint for 'repealed'.

2.07. The Law Commission in its 42nd Report considered the question whether any changes are necessary but did not recommend any change regarding the types of punishment. It, however, recommended certain changes only in sections 64 to 69, 71 and 75. The Commission also recommended that a new section 55 should be inserted with effect that the imprisonment for life shall be rigorous. To the same effect are the recommendations made by the Law Commission in its 39th Report regarding the punishment of imprisonment for life.

In the Indian Penal Code (Amendment) Bill, 1978, however, certain other types of punishments are proposed to be added in section 53 and these are community service, disqualification from holding office, order for payment of compensation and public censure. In the various workshops held it is highlighted that the punishment of community service is not practicable.

It is also voiced that the fine amount fixed many years ago have no relation to the realities to the present changed economic scenario and therefore, an upward revision is necessary. Doubts have been expressed whether the respective punishments, namely, disqualification from holding office and public censure should be included in section 53.

It is said that when there is conviction and punishment is awarded, disqualification from holding office should automatically be called for by virtue of the service rules or in view of the regulations governing the management of corporations. Likewise, it was voiced that public censure does not relate to the concept of punishment and, therefore, it would be out of place to include the same in section 53. The National Commission for Women recommended that more severe punishment should be awarded under section 376.

At this stage it is necessary to consider a few important criteria in the assessment of the value and impact of punishment. It has to be borne in mind that crime is a phenomenon of time and an opportunity to which the need and compulsion are to be added. These factors reflect the problems like environmental, social, psychological and economic, in the society.

The ultimate object of criminal law is to prevent crime. Regarding the determination of what should be the proper sentence in a particular case should necessarily be left to the court except in respect of the offences where minimum sentences are prescribed, and where the discretion of the court is curtailed. The Law Commission in its 14th 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."

2.08. The Law Commission in its 42nd Report also considered the position whether the present distinction between simple and rigorous imprisonment should be done away with and all offenders deserving jail sentence should be simply sentenced to imprisonment for a specified term, leaving it to the jail authorities and the prison rules to regulate the kind of work to be taken from particular classes of prisoners. The Commission, however, ultimately recommended that the legislative policy underlying the classification is sound and should be maintained.

It may be mentioned that under the Indian Penal Code the majority of the offences are punishable with "imprisonment of either description", and only few with simple imprisonment thereby leaving it to the discretion of the court. No doubt the court while awarding sentence has to take into consideration the nature of the offence, the motive, state of mind, the extent of breach of duty, the manner of commission of a crime, the means employed in its commission, the age and antecedents of the perpetrators, etc.

In view of the changes in the social set up that have taken, a fresh look to consider the efficacy of punishments have become necessary. A serious study on the question of revising the list of offences and also of describing punishments is felt necessary. Then the time scale and the system of punishment has to undergo a change.

Taking up the justification of deterrent punishment, we find that the objective aimed at the protection of the society, and the expectation that people will refrain from committing the offence for fear of deterrent punishment have not resulted in refraining the people from committing offences. However, in the matter of infliction, the deterrent punishment is expected to serve two-fold purpose individual and general.

A survey of the system of punishment obtaining in various countries would show that the concept of deterrence cannot be entirely eliminated from the present day policy of criminal law. However, the reformative theory of punishment has gained considerable importance and it aims at reformation by stressing that the offender should while being punished by detention, there is a need to expose him to educative, healthy and ameliorating influences. If the offender can be re-educated and traits of his character can be re-shaped, he can be put once again in the mainstream.

2.09. Now coming to the sentencing policy in the various workshops it is voiced that the amounts of fine to be imposed should considerably be enhanced and it should, as far as possible, be substitute for short-term imprisonment. It is also expressed that 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.

The main problem with the fine is in respect of the defaulter. In this context, the financial status of the offender also becomes relevant. A rich man can pay the fine and avoid being imprisoned in default whereas a poor man who cannot afford to pay the fine has to undergo the imprisonment.

2.10. A statistical survey shows that imposition of fine by the criminal courts is much more frequent than before. To ameliorate the problem regarding payment of fine by an indigent accused it would be salutary to make him pay the fine in instalments, namely, a gradation between different penalties corresponding to the resources of the offender. Some of the eminent jurists have observed that a provision of instalment payment of fines besides saving the tax-payer's money and the prisoner from an unwholesome experience and incidental demoralisation, creates a wholesome effect on the family of the offender.

In the case of defaulters, even where such benefit is given, some other course can also be evolved. He can be put on compulsory work outside the prison, e.g., on public projects like dams, roads or rural construction. Thus there are so many advantages of fine being the punishment as far as possible besides the same having a reformatory treatment. The fines thus collected can usefully be utilised by the State. Of course, there are certain disadvantages noticed. One of them is that fines in practice are adjusted to the offence and therefore bear unequally on the rich and the poor.

The fear of fine does not stop rich people from committing certain offences. No doubt some of the objections are of some importance; but taking an overall view it cannot be denied that fines have an important role to play in law enforcement but they must be imposed with the sound discretion and understanding particularly the means to pay. They, however, should not be used in dealing with habitual offenders, prostitutes, drug addicts, etc. since imposition of fine on them cannot have expected reformative results.

With this background, we propose to examine the various types of punishment proposed in the Bill.

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