Report No. 47
4.11. Instances of provisions for minimum punishment in other Acts.-
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".1
1. 14th Report, Vol. 2.
4.12. Questionnaire on Penal Code.-
In the questionnaire on the Penal Code issued by the previous Law Commission,1 the following question was put:-
"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?"
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 regarded any such amendment as totally unnecessary. Some of them were not happy about the working of the provisions made in special laws for imposing a minimum sentence.
1. Questionnaires on the Penal Code (See 42nd Report).
4.13. Recommendation in 14th Report as to minimum punishment.-
The Law Commission had, in a previous Report1, 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.
* * * *
However, the placing of restrictions on judicial discretion in the matter of the award of a sentence is, 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 adequate sentences or overlooked the need for passing deterrent sentences in appropriate cases."
1. 14th Report, Vol. 2.
4.14. In its Report on the Penal Code1 the Commission said-
"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."
1. 42nd Report (Penal Code), para. 3.30.
4.15. To what has been stated above1, we should add that2 where absolute liability is inserted form offence, the imposition of a minimum punishment raises important questions. Where liability is more likely to be absolute than not, it would be illogical to compel the court, even if it punishes an accused person, to impose some fixed or minimum penalty, without allowing a discretion to the Court not to impose that penalty, for reasons to be recorded in writing. This reasoning applies to mandatory imprisonment also. We shall have occasion to refer again to this aspect later.3
1. See paras. 4.10 to 4.14, supra.
2. See also Chapter 7, infra.
3. Chapter 7, infra.
4.16. Public censure.-
It is a peculiar feature of white-collar crimes that most of them are committed by persons belonging to the upper strata of society. Members of such classes, while they would not mind a sentence of fine, would certainly be deterred by threats of damage to their reputation. The punishment of public censure has, therefore, been considered effective in such cases-there also being the additional considerations that the exposure of a person who indulges in mala fide practices harmful to the society and punishable by law-for example, a manufacturer who wilfully manufactures adulterated articles of food-can affect him in a pecuniary manner, and also put on guard the members of the public.
4.17. Modern precedents.-
Quite a new penal codes of the present day provide for the giving of publicity to the fact of conviction and sentence. Thus, the Colombian Penal Code provides for "special publication of the sentence as an accessory to penal servitude or imprisonment"1. 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.
Social censure is one of the prescribed punishments in the U.S.S.R. According to the Russian Penal Code2, "social censure shall consist in 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".
1. Articles 42, 52 and 54, Colombian Penal Code.
2. Articles 21(9) and 33, R.S.F.S.R. Penal Code.
4.18. Indian Precedent.-
In India, this form of punishment is not unknown. Under the Prevention of Food Adulteration Act1, "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 assessess is made in the Income-Tax Act2.
1. Section 16(2), Prevention of Food Adulteration Act, 1954.
2. Section 287, Income-Tax Act, 1961.
4.19. The Foreign Exchange Act1 enacts that rules under the Act may-
"(c) provide, subject to such conditions as may be prescribed, for the publication of the names and other particulars of persons who have been found guilty of any contravention of the provisions of this Act, or of any rule, order or direction made thereunder."
The Gold Control Act2 has a provision for publicity (modelled on a similar one in the Customs Act).3
1. Section 27(2)(c), Foreign Exchange Regulation Act, 1947.
2. Section 71, Gold Control Act, 1968.
3. Section 120, Customs Act, 1962.
4.20. It may also be noted that one of the forms of punishment provided in the Hindu Criminal Law, was social censure arising out of the wide publication of the guilt of the offender and his identity. Thus, in Narada Smriti (about 6th century A.D.), parading a convict on an ass along public streets was provided as one of the punishments, for a Brahmin committing the offence of 'sahasa' (violence). The relevant verse1 can be translated thus-
"10. 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. Narada Smriti Sacred Books of the East, Vol. XXXIII, Chapter 14, Sloka 10.
4.21. Though such a punishment would be a 'degrading' form of punishment which is prohibited by the International Covenant on Civil and Political Rights,1 and is otherwise uncivilised and barbarous, publicity and social censure can be achieved by providing for publication of the names of the offenders in respect of certain crimes.
1. Article 7, International Covenant on Civil and Political Rights.
4.22. One meets with a variety of forms of publication of the particulars of the offence as a punishment. In the Prevention of Food Adulteration Act, for example, it is ordered by the Court. In the Income-Tax Act, on the other hand, the power is given to the Central Government1. One of the Provincial Acts2 had a provision under which a dealer convicted of black marketing could be required to fix a board outside his place of business, announcing the fact of his conviction. In all these cases, the common element is to bring to the society's knowledge, and to impress upon the convict, in a forceful manner, the guilt which led to his conviction. On the other hand, some foreign Codes employ public censure as a substitute for imprisonment. The provision in the East German Code3 may be quoted-
"37. Public reprimand.-(1) Public reprimand is pronounced if a lesser crime has not caused any major harmful effect or, in spite of heavy damage, the offender, whose guilt is of a minor nature, demonstrates that from now on he will conduct himself in a responsible manner.
1. Section 287, Income-Tax Act, 1961.
2. West Bengal Black Marketing Act, 1948, section 20.
3. The East German Penal Code, section 37. The text is taken from Law and Legislation in
(2) By means of a public reprimand the court expresses to the offender its disapproval of his action with a view to exhorting him conscientiously to fulfil his duties towards socialist society.
(3) The court may state in the sentence that the penalty is not to be recorded."
So far as the present context is concerned, it is, in our view, appropriate to employ it as a form of censure, and leave the question to the discretion of the Court rather than to the Central Government.