Report No. 156
2.11. Section 53 to 75 in Chapter III of the Code deal with punishments that can be awarded under the Code. Clause 18 of the Bill provides for substitution of section 53 by a new section which is as follows:
"53. Punishments.-The punishment which may be imposed on conviction for any offence are-
(ii) imprisonment for life which shall be rigorous, that is, with hard labour;
(iii) imprisonment for a term which may be-
(a) rigorous, that is, with hard labour; or
(b) simple, that is, with light labour;
(iv) community service;
(v) disqualification from holding office;
(vi) order for payment of compensation;
(vii) forfeiture of property;
(ix) public censure."
We find that in the proposed section the imprisonment for life shall be rigorous, that is, with hard labour. This description of imprisonment is not there in the existing section. Likewise simple imprisonment can be with light labour.
Four new types of punishments are included, namely, (i) community service, (ii) disqualification from holding office, (iii) order for payment of compensation, and (iv) public censure. In section 53 the punishment, namely, "transportation for life" was substituted by the words "imprisonment for life" by Act 26 of 1959.
Section 53A which has been added by Act 26 of 1959 states that in every case in which a sentence of transportation for a term has been passed, the sentence shall be dealt with in the same manner as rigorous imprisonment for the same. Questions often arose before the courts whether the punishment "imprisonment for life" means "rigorous imprisonment for life".
The Law Commission in its 39th Report noted that there is no clear provision as to how the person sentenced to imprisonment for life should be dealt with under the law as it now stands, namely, whether it should be same as sentence of rigorous imprisonment for life or simple imprisonment for life and whether it is a punishment different in quality despite being different in duration when the sentence of imprisonment of either description or for a specified term and whether it is legally permissible for a court passing a sentence to lay down that the imprisonment for life shall be rigorous or simple.
Since there is no clear provision, a new section 56 is sought to be inserted in the Code of Criminal Procedure to the effect "imprisonment for life shall be rigorous with a view to resolve the doubts". Correspondingly, the proposed amendment making imprisonment for life rigorous is necessary. The other change, namely, that simple imprisonment as compared to rigorous imprisonment can be with a light labour is also a desirable change.
2.12. Now coming to the "community service" by way of punishment, the question is whether it is practicable. The punishment by way of community service is a new concept and closely connected with reformative theory. In "Declaration of Principles of Crime and Punishment of the Cincinnati, Ohio meeting of the First Congress in 1880", it was observed, "the supreme aim of present discipline is the reformation of criminals, not the infliction of indigent suffering".
On these lines the All India Jail Manual Committee has also suggested the system of open jails for the rehabilitation and pre-release preparation of the prisoners. It is an accepted principle that the ultimate object of punishment is to make the anti-social person a good citizen. The open-air jail system is recommended to achieve this object of rehabilitation and pre-release of the prisoners by giving them necessary training and adopting correctional methods.
It is recognised that with a view to rehabilitate the prisoners socially, they should be employed in work which will prepare them for useful and remunerative employment after release. However, it is to be borne in mind that in this open air prison system the prisoner enjoys a degree of freedom but not fully. The community service no doubt is another innovation in the direction of correctional methods but as voiced in many workshops it may not be practicable to give an effect to and also may not amount to a punishment.
Clause 27 of the Bill provides for insertion of a new section 74A exclusively to deal with punishment of community service and is in the following terms:
"74A. (1) Where any person not under eighteen years of age is convicted of an offence punishable with imprisonment of either description for a term not exceeding three years or with fine, or with both, the court may, instead of punishing him as aforesaid or dealing with him in any other manner, make an order (hereinafter in this section referred to as the Community Service Order) requiring him to perform, without any remuneration, whether in cash or in kind, such work and for such number of hours and subject to such terms and conditions, as may be specified in the said Order:
Provided that the number of hours for which any such person shall be required to perform work under a Community Service Order shall be not less than forty hours and not more than one thousand hours:
Provided further that the court shall not make a Community Service Order in respect of any such person, unless-
(a) such person consents in writing to perform the work required of him under such Order;
(b) the court is satisfied that such persons a suitable person to perform the work required of him and that for the purpose of enabling him to do such and such work under proper supervision, arrangements have been made by the State Government or any local authority in the area in which such person is required to perform such work.
(2) Every Community Service Order made under sub-section (1) shall specify the nature of the work to be performed by such person which shall be of general benefit to the community.
(3) Where the court by which any Community Service Order was made is satisfied at any time that-
(a) any person against whom a Community Service Order has been made under sub-section (1) has failed, without reasonable cause or excuse, to comply with any of the terms and condition specified in such Order; or
(b) having regard to the circumstances that exist subsequent to the date of making the Community Service Order, it is necessary or expedient in the interests of justice so to do, it may
(i) in a case falling under clause (a), modify or revoke the Community Service Order and deal with the person convicted of the offence in such manner as he may have been liable to be dealt with for the offence in relation to which such order was made or, without prejudice to the continued operation of the Community Service Order, impose on him a fine not exceeding one hundred rupees; or
(ii) in a case falling under clause (b), modify or revoke the Community Service Order and deal with the person convicted of the offence in such manner as he may have been liable to be dealt with for the offence in relation to which such Order was made.
(4) Where a court makes two or more Community Service Orders against a person convicted of two or more offences at the same trial, it may direct that the hours of work required to be done under any Community Service Order shall be concurrent with or in addition to the hours of work under any of the Community Service Orders made by the court at the same trial, subject to the condition that the total number of hours of work to be done by such person under all or any such Community Service Orders shall not exceed one thousand hours."
2.13. A careful reading of this new section shows that the punishment of community service can be awarded to any person above eighteen years of age convicted of an offence punishable with imprisonment of either description for a term not exceeding three years or with fine or with both and the court instead of sending him to the prison or dealing with any other manner make an order, namely, "community service order" requiring the said convict to perform without any remuneration such work for such number of hours subject to certain terms and conditions.
In other words, an order called community service order is passed after conviction by way of punishment with all those conditions mentioned in the proposed section 74A. The implementation part of it is provided in sub-sections 1A and 1B and work is to be performed under proper supervision as per the arrangements to be made by the State Government or any local authority. Sub-section (2) lays down that the nature of the work to be performed by the convict has to be specified.
The object underlying in awarding this kind of punishment though outwardly appears to be attractive, but there are any number of difficulties in enforcing the same. A mere reading of sub-section (3) makes the point clear. This section contemplates a supervisory authority to see whether the convict is working and rendering service for the number of hours specified and if he fails to do so by way of default, he has to be sentenced thereafter. We think an open air prison system is better suited from the point of view of the correctional measures rather than the proposed punishment of community service.
2.14. The next aspect is 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 their respective 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. Therefore, 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.
2.15. Coming to the payment of compensation by way of punishment, the Supreme Court in Bodhisattawa Gautam v. Miss Subhra Chakraborty, JT 1995 (9) 509 citing its earlier decision in Delhi Domestic Working Women's Forum v. Union of India, JT 1994 (7) 183, observed:
"It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some, for example, are too traumatised to continue in employment.
Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy as a result of the rape."
The Court added:
"The decision recognises the right of the victim for compensation by providing that it shall be awarded by the Court on conviction of the offender subject to the finalisation of Scheme by the Central Government. If the Court trying an offence of the rape has jurisdiction to award the compensation at the final stage, there is no reason to deny to the Court the right to award interim compensation which should also be provided in the scheme."
On the basis of principles set out in the aforesaid decision in Delhi Domestic Working Women's Forum, the jurisdiction to pay interim compensation shall be treated to be part of the overall jurisdiction of the Courts trying the offences of rape which, as pointed out above is an offence against basic human rights as also the Fundamental Right of Personal Liberty and Life."
2.16. 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.
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 case as offences under proposed new sections 420A and 462A under the Indian Penal Code (Amendment) Bill.
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 USSR, 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 chapters XII and XIII, like extortion, criminal misappropriation, cheating and of offences relating to documents. We are also of the view 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.
2.17. There are only few sections in the Indian Penal Code which prescribe death as penalty. They are sections 121, 132, 194, 302, 305, 2nd Part of 307 and 396. However, by virtue of Criminal Law Amendment Act of 1983, minimum sentence in respect of offence of rape has been prescribed under section 376(1) and (2). A question whether there should be such minimum sentence in respect of some more offences was debated and ultimately consensus is that restrictions on judicial pronouncements in the matter of award of sentence on principle is not a healthy practice.
There may be instances occasionally where judges have failed to award proportionate sentences, but that cannot, however, be a factor to assume that the judges as a whole have failed to award adequate sentences. In the 14th Report as well as in the 42nd Report, the Law Commission examined this question and took the view that except in exceptional cases there should not be any provision for a minimum sentence. We agree with this view.
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.