In criminal law, any pain, penalty, suffering, or confinement inflicted upon a person by the authority of the law and the judgment and sentence of a court, for some crime or offense committed by him, or for his omission of a duty enjoined by law.
Punishment, the infliction of pain or loss upon a person for a misdeed i.e. the transgression of a law or command. Punishment may take forms ranging from capital punishment, flogging, forced labour, and mutilation of the body to imprisonment and fines. Deferred punishments consist of penalties that are imposed only if an offense is repeated within a specified time.
KINDS OF PUNISHMENT PRACTICED IN INDIA
Six kinds of punishment were described in the original Indian Penal Code. In the year 1949 the third punishment Penal Servitude was removed. Now there are five kinds of punishment under I.P.C. They are described hereunder: -
1) Death: -
The punishment of death may be imposed on the following offences: -
(a) Waging or attempting to wage war or abetting the waging of war against the Government of India -Section 121 I.PC.
(b) Abetment of mutiny committed – Sec. 132 of I.P.C.
(c) Giving or fabricating false evidence upon which an innocent person suffers death – Sec. 194
d) Murder – Section 302
(e) Punishment for murder by a life-convict – Sec. 303. This Section was struck down by the Supreme Court holding that it was unconstitutional, while disposing the case Mithu v. State of Punjab.
(f) Abetment of suicide of a child, an insane or intoxicated person – Sec. 305 of IPC.
(g) Attempt to murder by a person under sentence of imprisonment for life, if hurt is caused – Sec. 307 I.PC.
(h) Dacoity with murder – Sec. 396 I.P.C.
The Courts have a high range of discretionary powers in passing death sentences. The death punishment is also called Capital Punishment. The word capital means the head or top of the column. Thus, the capital punishment means removal of head, death penalty or beheading.
It is the maximum punishment possible to be imposed on a criminal. This punishment occupies topmost position among the grades of punishments. This punishment can be imposed in extreme cases and rarely that too in extremely grave crimes.
The capital punishment can be imposed on a criminal who commits a pre-planned and premeditated murder in cold blood. The offences with sections in which the death penalty can be imposed are explained above.
Most of the developed countries have removed death sentences from their respective penal code due to agitations caused by the suggestions of sociologists, reformists, criminologists, etc.
2) Imprisonment for Life: -
Before 1955, the words transportation for life was used. The Code of Criminal Procedure Amendment Act, 1955 (Act No. 26 of 1955) substituted the words “Imprisonment for life” in place of transportation for life.
The general public thinks that imprisonment for life means only 14 years imprisonment, and the convict shall be released as soon as the 14 years period is lapsed. It is wrong presumption.
The punishment under the Imprisonment for Life means imprisonment for the whole of the remaining period of the convicted person’s natural life. During the British Rule, the convicts under transportation for life was used to be deported to
the Andaman’s and other Colonies and were taken for ever from the society of all who were acquainted with him.
After independence, such system was stopped. Now the convicts under imprisonment for life are imprisoned in the Prisons of the States concerned. The life convict is not entitled to automatic release on completion of fourteen years imprisonment, unless on special occasions, the Government may pass an order considering the good behaviour and conduct of the convict remitting the balance of imprisonment for life.
3) Penal Servitude: -
Servitude means slavery. Penal Servitude means the convict becomes a slave of the State. The British Courts used to impose Penal Servitude as a severe punishment next to the Death Sentence. Generally, this punishment was imposed on Indians, who revolt against the then British Rule.
Penal Servitude is coupled with the punishment of Transportation i.e. the convicts under these two punishments were sent to uninhibited lands and areas, such as Andaman and Nicobar, South Africa, etc., or to any other British territories or dominions to work in their factories, plantations, mines, etc.
These punishments were also called Extermination or Exterminating before the independence, such punishments were called as Kala Pani. A cinema Kala Pani was also picturised showing heinous circumstances in those days.
Several thousands of freedom fighters were punished under these punishments before the independence. As soon as India got independence, our Indian Government abolished Penal Servitude punishment, by the Criminal Justice Act, 1948 (Act No. 58 of 1948).
The Fourth kind of punishment is Imprisonment. It is of two descriptions, viz -
i. Rigorous Imprisonment i.e. with Hard Labour:
There are certain offences defined in the Indian Penal Code, for which rigorous imprisonment may be imposed by the Courts. Examples - House- trespass under
Section 449 of IPC; fabricating false evidence with intent to procure conviction of an offence which is capital by the Code (Sec. 194) etc.
For such offences, rigorous imprisonment may be imposed. In rigorous imprisonment, the convicted person is put to do hard labour such as digging earth, cutting stones, agriculture, grinding corn, drawing water, carpentry, etc. The Supreme Court suggested that the offenders imposed hard labour should be paid minimum wages.
The Trial Court, while disposing Bombay Blast Case (2007), sentenced Sanjay Dutt, a Bollywood Hero, for rigorous imprisonment for a period of six years. Until the Supreme Court gave the Bail, Sanjay Dutt did carpentry work for 30 days and earned Rs. 39/- during that period.
While disposing the case Sunil Batra v. Delhi Administration2, the Supreme Court observed, Hard labour in Sec. 53 must receive a humane meaning.
A girl student or a male weakling sentenced to rigorous imprisonment may not be forced to break stones for nine hours a day. The prisoner cannot demand soft jobs but may reasonably be assigned congenial jobs. Sense and sympathy are not enemies of penal asylums.
ii. Simple imprisonment:
This punishment is imposed for the lighter offences. Examples - public servant unlawfully engaging in trade or unlawfully buying or bidding for property (Sections 168-169), absconding to avoid service of summons or other proceedings, or not attending in obedience to an order from a public servant (Sections 172-174), to obstruct traffic or cause public nuisance, eve- teasing, drunken brawls, etc. refusing oath when duly required to take oath by a public servant (Section 178), wrongful restraint (Sec. 341), defamation (Sec. 500) etc.
5) Forfeiture of Property:
Forfeiture is the divestiture of specific property without compensation in consequence of some default or act of forbidden by law. The Courts may order for forfeiture of property of the accused in certain occasions.
In white collar crimes, and where a Government employee or any private person accumulates black money and black assets, and there is no genuine answer and proof for such money and properties with such person, the Court may award for forfeiture of property.
In cases of smugglers, goondas, anti-national personalities, etc. the Government or the Courts are empowered to forfeiture of property of such anti-social elements.
The Courts may impose fine along with or without imprisonment. The Indian Penal Code mentions the punishment of fine for several offences, generally with or without imprisonment.
Amount of fine: According to Section 633, where no sum is expressed to which a fine may extend, the amount of fine to which the offender is liable is unlimited but shall not be excessive.
Sentence of imprisonment for non-payment of fine: According to Section 64, in every case of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment, and in every case of an offence punishable with imprisonment or fine, or with fine only, in which the offender is sentenced to a fine, it shall be competent to the Court which sentences such offender to direct by the sentence that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence.
Limit to imprisonment if fine imposed is not paid: Section 65 lays down that the term for which the Court directs the offender to be imprisoned in default of payment of a fine shall not exceed one- fourth of the term of imprisonment which is the maximum fixed for the offence, if the offence be punishable with imprisonment as well as fine.
Description of imprisonment for non-payment of fine: Section 66 lies down that the imprisonment which the Court imposes in default of payment of a fine may be of any description to which the offender might have been sentenced for the offence.
Imprisonment for non-payment of fine when offence punishable with fine only: According to Section 67, if the offence be punishable with fine only, the imprisonment which the Court imposes in default of payment of the fine shall be simple, and the term for which the Court directs the offender to be imprisoned, in default of payment of fine, shall not exceed the following scale -
When the fine shall not exceed fifty rupees – the term of imprisonment shall not exceed two months.
Termination of Imprisonment on Payment of Fine: According to Section 68, whenever the fine is paid the imprisonment shall be terminated forthwith.
According to Section 69, if, before the expiration of the term of imprisonment fixed in default of payment, such a proportion of the fine be paid or levied that the term of imprisonment suffered in default of payment is not less than proportional to the part of the fine still unpaid, the imprisonment shall terminate.
FINE VS. IMPRISONMENT
It is the general presumption that if the offender passes the imprisonment in default of fine imposed upon him, such imprisonment shall liberate the fine. It is wrong presumption. Section 70 says that fine and imprisonment for default of fine are two different things.
Imprisonment for default of fine shall not liberate the offender from his liability to pay the full amount of fine imposed upon him. Imprisonment in default of fine is not a satisfaction for the fine, but it is a punishment for non-payment or contempt or resistance to the due execution of the sentence.
Such fine shall be recoverable from the offender within six years from the date of sentence passed by the trial Court or during imprisonment. Fine may be recovered
from the property of the offender. Death of the offender shall not discharge property from liability.
Theories of Punishment
In administration of criminal justice five theories of punishment have come into light. They are as follows:
i. Preventive Theory: According to this theory punishment is awarded with a view to prevent the offender from repeating the offence in future. In older days the prevention was secured by disabling the offender permanently for example, for the offence of theft the hands of the offender were cut away. The death sentence is the most effective mode of preventing the offences by an offender.
It is awarded only in those offences which are of very grave nature such as murder and treason. Now-a-days some other measures are adopted in order to secure prevention. Some such measures are forfeiture of office, suspension or cancellation of licences etc. Further preventive detention and security also are adopted to prevent the offence though these are not punitive.
ii. Deterrent Theory: This theory says that punishment to the wrong-doer must not only create awe, not only in the mind of wrong-doer but in the minds of others also, to deter them from committing the crime. In olden days execution in the public was done only with this view.
iii. Retributive Theory: The origin of this theory lies in the primitive notion of vengeance against the wrong doer. When the society progressed, crimes were considered as a wrong against the whole of the society and not only against an individual.
Now the State was substituted at the place of the individual and as such the State indicates the proceedings against the criminal and is also a party in such proceedings. Now, the punishment gratifies the instinct of revenge not only of a single individual (against whom the wrong has been committed) but of the whole of the society because if a wrong of a criminal nature is committed against an individual the extension of social sympathy in his favour makes it a wrong against the whole of the society. Therefore, the society is interested in the punishment of the wrong-doer, and thus, the punishment satisfied a social instinct.
This theory considers punishment as an end. It aims at restoring the social balance disturbed by the offender. The offender should receive as much pain and suffering as inflicted by him on his victim to assuage the angry sentiments of the victim and the community. This theory proceeds on practical grounds, and therefore, it concentrates upon the moral culpability of the wrong doer. In modern times though retribution has an important place yet there is a growing tendency to regard punishment to an end and not an end.
iv. Expiatory Theory: This theory says that by undergoing punishment the crime is expiated. Ancient Hindu Lawgivers like Mann and some western philosophers also, like Hegal, say that the punishment makes the criminal to expiate for the wrong doer. This theory is based on morals.
v. Reformative Theory: According to this theory the purpose of punishment should be to reform the criminal and to make him a good citizen. In support of this theory Supreme Court has in Mohammad Gias Uddin v. State of A.P4 observed.
THEORIES APPLICABLE IN INDIA
In India the theories applicable are preventive theory and reformative theory. Earlier people used to think that the criminal has been influenced by some supernatural power and this concept was base of deterrent theory. After that the thoughts of people change from that to concept of an eye for an eye that is a criminal who has murdered someone has to die. This thought is basis of retributive theory.
But now the concept has totally changed. The system now focuses on to prevent the crime rather than avenging it. Looking at punishment from a more humane perspective it vests on the fact that the need of punishment for a crime arises out of mere social needs i.e. while sending the criminals to the prisons the society in turn trying to prevent the offender from doing any other crime and thus protecting the society from any anti-social element. And this is the basis of preventive theory, which is applicable to Indian penal system now.
And there is another theory on which the Indian penal system is based is reformative theory. This theory is mainly basing on reformation of criminals. This theory doesn’t look criminals as inhumane this theory puts forward the changing nature of the modern society.
CRITISMS OF INDIAN PENAL SYSTEM
Under section 3095 there is punishment for committing suicide which according to me is not right as the person who has committed suicide is already suffering from pain and giving him punishment leads the mental status of the person to worst and may also lead him to commit suicide.
It is believed that corrupt social environment is responsible for crime and not individual which is the philosophy on which Indian Penal System which is hard to digest. Many a times the system overlooks the victim’s claims.
Many hardcore criminals, highly educated and professional criminals cannot be reformed into a better person.
The entire focus of the system is on the offender, to punish him or to seek his reformation and rehabilitation with all the resources and goodwill available through courts and other governmental and non-governmental agencies. The victims of crimes are, on the other hand, forgotten people in the system.
Section of 357(1) of Criminal Procedure Code 1973 (CrPC) empowers court to grant amount to victim of the offence out of fine imposed as part of the sentence. Under section 357(3) of CrPC, court may nevertheless order accused person to pay a certain sum of compensation to victim where no fine is imposed as part of sentence. Compensation is payable to victim of the crime only when fine is not imposed as part of sentence which is unfair because amount of fine is meagre compare to the compensation. Moreover, incurred expenses of prosecution are deducted from the fine and remaining amount is paid to victim of crime, therefore, victim gets small amount that would not amount to justice.
The punishment mention given under section 309 for suicide should be remove instead of that the person should be given counselling so that the reason behind the act can be find out and cure.
The amount of compensation which is given to the victim should be increased and in places where compensation is not given there should be addition of compensation clause. System thinks compensation and fine to be one which is wrong.
The focus of system is reformation of criminals, but the system should also focus on reformation of victims. Because they have suffered a lot and their mental status should also be reform, so they come out of the pain of suffering.
At last I want to conclude that the Indian Penal System is according to me is good for Indian society but at the same time it only focuses on criminals not victims. It needs to focus on victim also. The changes occurred in the system from past times is remarkable.