The Penal Law Of India

Published Date: 02 Nov 2017

INTRODUCTION

The Penal Law of India is the resource of definitions and descriptions of substantive offences. It consists of 511 sections specifying different kinds of offences. Section 53 deals with the "Punishment". [1] 

The punishments prescribed are mainly 5 in numbers. Every offence describes the punishment also. According to Section 53 of Indian Penal Code, 1860,

The punishments to which offenders are liable under the provisions of this Code are-

First - Death;

[Secondly - Imprisonment for life;]

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

Rigorous, that is, with hard labour;

Simple ;

Fifthly - Forfeiture of property; 

Sixthly – Fine.

This Section enumerates various kinds of punishments to which the offenders are liable under the Penal Code. This section is not exhaustive in so far as the kinds of punishments are concerned because some other punishments may be imposed under some local and special law. These punishments are applicable to offences under this Code only. Generally the Code lays down for the massive number of offence. There are some exceptions to this. The punishments in a particular case shall, within the maximum limits fixed by the Code, be awarded in type discretion of the court. But the discretion should exhibit that a reasonable proportion has been maintained between the seriousness of the crime and the punishments imposed. The sentence should neither be disproportionately severe nor should it be too lenient so as to fail to serve its purpose in producing effect on the offender and as an eye opener to others. [2] 

Considering various aspects of the case and the mitigating circumstances present, if any, the court can reduce the quantum of punishments. In State of Punjab v. Mann Singh, [3] it was held that it was the duty of the court in every case to award a proper sentence having regard to the nature of the offence, the manner in which it was committed and to all the attendant circumstances. [4] 

While passing sentence the court has to consider the totality of factors bearing on the offence and the offender and award a punishment which will promote effectively the punitive objective of the law deterrence and habilitation. [5] Sentencing is always a matter of judicial discretion subject to any mandatory minimum prescribed by law. [6] 

According to some it is the retribution due for the violation of the rules of the society which are made for its preservation and peace and the infraction of which is made punishable. The administration of punishment involves the intention to produce some kinds of pain which may be partly physical and partly mental. The amount of pain actually experienced by the offender will vary from case to case depending on the circumstances and the personality of the offender.

Prof. Hart defines punishment in terms of the following five elements [7] -

It must involve pain or other consequences normally considered unpleasant.

It must be for an offence against legal rules.

It must be for an actual or supposed offender for his offence.

It must be intentionally administered by human beings other than the offender.

It must be imposed and administered by an authority constituted by a legal system against which the offence is committed.

The nature of punishment can be drawn with reference to the following characteristics [8] :

Punishment is a privation (evil, pain, and disvalue).

Punishment is coercive.

Punishment is inflicted in the name of the State; it is authorized.

Punishment presupposes rules, their violations and a more or less formal determination of that, expressed in a judgment.

Punishment is inflicted upon an offender who has committed harm and this presupposes a set of values by reference to which both the harm and the punishment are ethically significant.

The extent or the type of punishment is in some defended way related to the commission of harm.

In sum, punishment is for the transgression of rules; and it is inflicted by legally authorized persons. [9] Modern correctionists hold that punishment is an unmitigated "absolute" evil. Plato regarded it as having instrumental value, as a necessary cure no evil than the bitter medicine which a physician might administer. [10] 

According to Bentham punishment is an empirical question of desire and of the infliction of sufficient pain to provide an effective deterrent. [11] In his opinion there is no subjective difference between punishment and compensation and that all sanctions are punitive. In sum punishment is a coercive deprivation intimately applied to an offender because of his voluntary commission of harm forbidden by penal law and implying his moral culpability. [12] 

THEORIES OF PUNISHMENT:

The object of punishment is achieved partly, by inflicting pain in order to deter criminals and others from indulging in crime and partly, by reforming criminals. [13] The degree of punishment cannot be uniform in all cases. It varies according to the nature of the offence, intention, age, mental condition of the person(s) and the circumstances in which the offence is committed. For instance, a man of unsound mind would be treated differently from a man of sound mind who commits murder intentionally. For this, different theories and approaches were propounded and a strict analysis is done so as to see under what conditions an offender can be severely penalized. A crime may generate three types of reactions against a criminal, viz:

Punitive approach: it considers the criminal as a notoriously dangerous person who deserves severe punishment to protect the society from his criminal conduct;

Therapeutic approach: it aims at curing the criminal tendencies which were the product of deceased psychology; and

Preventive approach: it seeks to eliminate those conditions from the society, which are responsible for crime causation.

The object of protecting society is sought to be achieved by deterrence, prevention, retribution and reformation. Of these, deterrence is usually regarded as the main function of punishment, others being merely secondary.

Deterrent Theory

According to this theory, the object of punishment is not only to prevent the wrongdoer from doing a wrong for the second time, but also to make him an example to other persons who have criminal tendencies. Salmond considers deterrent aspects of criminal justice to be the most important for control of crime. [14] 

The chief aim of the law of crimes is to make the evil doer an example and give a warning to all that are like minded. In other word, the commission of every offence should be made a bad bargain. Among those who advocate deterrent punishment because of its social utility, some claim that infliction of pain upon those convicted of crimes serves to deter others from crime, that it has great value for that reason, even if some individuals are not deterred. The notion that punishment reduces crime is based on the hedonistic assumption that people regulate their behavior by calculation of pleasure and pain. [15] 

The deterrent theory was the basis of punishment in England in the medieval period, and consequently, severe and inhuman punishments were inflicted even for minor offences. In India, sentences for death and mutilation of limbs were imposed even for pretty offences of forgery and stealing, etc, during the Mogul period. Even today, deterrent theory forms the basis of penal jurisprudence in many countries more specifically Islamic countries.

However, this theory has been criticized on the grounds that it has proved ineffective in checking crimes, and also that excessive harshness of punishment tends to defeat its own purpose by arousing the sympathy of the public towards those who are given cruel and inhuman punishment. Deterrent punishment is likely to harden the criminal instead of creating in his mind the fear of the law. Hardened criminals are not afraid of imprisonment.

Preventive Theory

Another object of punishment is to prevent or disable. The offenders are disabled from repeating the crime by punishment like death, exile or forfeiture of an office. By putting the criminal in jail, he is prevented from committing another crime. According to Paton:

The preventive theory concentrates on the prisoner but seeks to prevent him from offending again in the future. Death penalty and exile serve the same purpose of disabling the offender. Critics point out that preventive punishment has the undesirable effect of hardening the first time offenders or juvenile offenders by putting them in association of hardened criminals.

Retributive Theory

In primitive society, punishment was mainly retributive. The victim was allowed to take revenge against a wrongdoer. The principle of ‘an eye for an eye, a tooth for a tooth, a nail for a nail’ was the basis of criminal administration. According to Justice Holmes, ‘It is commonly known that the early forms of legal procedure were grounded in vengeance’.

The advocates of this theory urge that a criminal deserves to suffer punishment. The suffering imposed by the state, in its corporate capacity, is considered the political counterpart of individual revenge. It is said that unless the criminal gets the punishment he deserves, one or both of the following effects will be produced. The victim will seek individual revenge, which may mean lynching the accused ( to murder an accused by mod action and without lawful trial as by hanging) if his friends co-operate with him, or, me victim will refuse to make a complaint or offer testimony, and the state will, therefore, be handicapped in dealing with criminals.

Retributive punishment gratifies the instinct of revenge or retaliation, which exists not merely in the individual wronged, but also in the society at large, in modern times, the idea of private revenge has been discarded, an the state has come forward to have the revenge in place of the private individual. However, the critics of the retributive theory point out that punishment in itself is not a remedy for the wrong. It merely aggravates the mischief. Punishment in itself is an evil and can be justified only on the ground that it is going to yield better results.

Reformative theory

According to the reformative theory, the object of punishment is to reform criminals and that it accomplishes this by classifying or ingraining that crime does not pay or by breaking habits that criminals have formed. Even if an offender commits a crime under certain circumstances, he does not cease to be a human being. The circumstances under which he committed a crime may not occur again. The object of the punishment should be to bring about a moral reform of the offender. The criminal must be given some vocational training in art, craft or industry, in jail so that he may be able to lead a good life and become a respectable citizen of society after his release.

While awarding punishment, the judge should study the character, antecedents and age of the offender, his family background, education and environment the circumstances under which he committed the crime, the motive which promoted him to indulge in criminal activities etc. the object of doing so is to acquaint the judge with the circumstances under which the offence is committed, so that the punishment may be awarded to meet the ends of justice.

Critics of this theory state that if criminal are sent to prison to be transformed into good citizens, the prison will no more remain a prison, but will become a dwelling house. However, the deterrent motive should not be abandoned altogether in favor of the reformative approach. In fact, a perfect system of criminal justice cannot be based on any single theory of punishment. It has to be a combination of all. Every theory has its own merits and every effort should be made to take the good points of all. For instance, the reformative aspect must be given its proper place. The offender is not only a criminal to be punished but also a patient to be treated. Punishment should be in proportion to the gravity of crime. The first time offenders should be treated leniently. Special treatment should be given to juvenile delinquents. Special courts should be set up for the trial of children and those in charge of them must try to find out ways and means of reforming them and not punishing them. A criminal should be able to secure his release by showing improvement in his conduct. The object of the concession, given to an offender, is to convince him that a life free of crime is better than life in jail. Establishment of hospitals in prison on a large scale and improvement of living conditions in jails would serve a better purpose.

However, the courts should not confuse between correctional approach to prison treatment and nominal punishment verging on decriminalization of serious social offences. [16] Courts which ignore the grave injury done to society, implicit in economic crimes committed by the white collar criminals, ill-serve social justice. Passing a soft sentence, when the need of the hour is different, could lead to a situation where innocents could become victims.

PUNISHMENT IN IPC