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TYPES OF PUNISHMENT
(..7..)
PUNISHMENT
QUESTION BANK
Q.1âAbolition of capital punishment would be a grave danger to the security
of the societyâ Do you agree?
Q.2 Describe the different kinds of punishments.
Q.3 Explain the theories of Punishments.
Q.4 What is the object of punishment? State various kinds of punishments
under the I.P.C.
Q.5. Discuss fully the different types of punishments provided under Indian
Penal Code.
Q.6 What are the types of punishment? Explain social relevance of capital
punishment.
Q.7 What are the types of punishment? Explain with special reference to
capital punishment.
SHORT NOTES
1. Imprisonment
2. Fine
3. Reformative theory
4. Solitary confinement
SYNOPSIS
I] Punishment; Aims and objects
II] Theories of punishment
1)
Deterrent Theory
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Preventive Theory
Retributive Theory
Reformative Theory
3)
4)
III] Kind of punishment under I.P.C.
A)
Death sentence (Capital punishment)
1)
2)
3)
Introduction
Death (capital) punishment under I.P.C.
Arguments in favour of capital
punishment
a) Deterrence
b) Elimination of dangerous
criminals
c) Reduce expenditure of state
d)
e)
f)
Justice to victim
Sense of protection
Constitutionally valid
Pardon or commutation
g)
4)
Arguments against capital punishment
a) Cruel and inhuman
b) No reformation
c)
Misuse
B)
C)
Imprisonment for life
Imprisonment.
1)
2)
3)
Rigorous
Simple
Solitary
D)
E)
Forfeiture of property
Fine
-Imprisonment in default of fine
PUNISHMENT; AIMS AND OBJECTS:-
According to R. C. Nigam, âPunishment is the suffering in the person
I]
(physical) or property, inflicted by the society on the offender who has been
adjudged the guilty of a crime under the lawâ. The suffering in property may be
forfeiture or fine.
Punishment aims to protect society from mischievous elements by
deterring potential offenders and preventing actual offenders from committing
further offences. It also eradicates evils, reforms criminals, and turns them into
law-abiding citizens.
However, the amount of punishment is not uniform in all cases. It
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changes from time to time and from place to place. It depends upon the value that
society preserves. Therefore, adultery is an offence in India, which is not so in
England. The punishment for any offence in India is not as severe as in Arabic
countries. Punishments also vary according to the nature of the offence, intention,
age, mental condition, etc, of the offender, and the circumstances in which the
offence is committed. For instance, a boy of ten years will be treated differently
from a grown-up man for committing the same offence. Likewise, a person of
unsound mind would be treated differently from a man of sound mind for the
commission of murder. Similarly, for habitual offenders, professional offenders
will be punished more severely than a first-time offenders.
II]
THEORIES OF PUNISHMENT:-
The object of punishment is to protect society from antisocial behaviour
and reduce the crime rate. This object or purpose can be achieved by deterrence,
prevention, retribution, and criminal reformation. These are also called the
justifications for punishment. Among these objects, the deterrent is regarded as
the main function of punishment, and others are merely secondary.
1)
Deterrent Theory:-
According to this theory, the object of punishment is not only to prevent
the wrongdoer from doing wrong again but also to make him an example to other
persons with criminal tendencies so that the others would also deter him from
committing a crime in the future. Therefore, a general (i.e., to the other potential
criminals in the society) and particular (i.e., particular criminal) deterrence is the
object behind the deterrent theory.
The instances or kinds of such punishments may be death, hanging in
public, stoning till death, whipping in public, maiming, etc.
According to Justice Brunet- âthief is not punished for having stolen a
horse but so that others horses may not be stolenâ.
However, this theory has been criticised on several grounds, such as the
theory is ineffective in reducing crimes, excessive harshness of punishment
creates sympathy in the minds of the public about criminals, it is likely to harden
the criminal instead of creating in his mind the fear of law, etc.
2)
Preventive Theory:-
Another object of punishment is preventing or disabling. Punishments like
death, exile, jail imprisonment, etc., disable offenders from repeating the crime.
Preventive punishment has been criticized for having the undesirable effect of
hardening first-time offenders or juvenile offenders by making them associated
with hardened criminals.
3)
Retributive Theory:-
In primitive society, the punishment was mainly retributive. The victim
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was allowed to take revenge (retribution) against a wrongdoer. The principle of
âan eye for an eye, and a tooth for a toothâ was the basis of the criminal justice
system.
According to this theory, a criminal deserves to suffer punishment. In
modern times, the satisfaction of an individual victimâs revenge is made by the
state inflicting punishment on the offender. Thus, the theory gratifies the instinct
of revenge, which exists not merely in the individual wronged but also in society
at large.
However, this theory has been criticised because punishment is not a
remedy for a wrong. It merely aggravates the mischief. Punishment in itself is evil
and cannot be justified if it does not yield better results.
4)
Reformative Theory:-
According to this theory, the object of punishment is to reform the
criminal. This object can be achieved by convincing the futility of crime (i.e.,
crime doesnât pay) and by breaking the habit that the criminal has formed of
continuing crime. Reformation may be defined as "The effort to restore an
offender in a society as a better and wise man and a good citizen.â
According to this theory, the criminal is treated as a patient, and his
tendency to commit a crime is a disease that the well-designed administration can
cure of medicine or punishment. It treats punishment as medicine to reform the
criminal. For this purpose, leniency to severe punishments is taken into
consideration. This theory suggests giving some vocational training in art, craft,
or industry in jail so the criminal can lead a good life and become a respectable
citizen after release.
The judge should consider the character and age of the offender, his early
breeding, family background, education, and environment, the circumstances
under which he committed a crime, and the motive that prompted him to indulge
in criminal activities, etc., while awarding the punishment. This is to acquaint the
judge with the offender's nature and administer a suitable punishment to achieve
the ends of justice.
In Sunil Batra V/s Delhi Administration
Facts:- A prisoner sent a letter to the Supreme Court for brutal assault by a Head
Warden of jail on another prisoner. The court treated the letter as a writ of Habeas
Corpus.
Justice Krishna Iyer observed: -
The object of the punishment is to correct the wrongdoer and not wreak
vengeance on him. Punishment is no longer regarded as âretributiveâ or
âdeterrent,â but it is regarded as reformative or ârehabilitative.â
Mahatma Gandhi states, âHate the sin, but not the sinnerâ. The offender is
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treated as a patient, and punishment is to be administered to cure his disease.â
Criticisms on the following grounds are levelled against this theory, viz-
Firstly, Reformists are concerned solely with the criminal, but they do not
consider the plight of the victim. Thus, if a young girl is raped, they will follow
the rapist and take care of him to cause reformation in him, but what about the
suffering of raped girl and her family? In short, a reformist shows sympathy for
criminals but not the victim.
Secondly, the deterrent theory's importance cannot be forgotten.
Reformation is an important object of punishment, but it is not a sole end in itself.
Thirdly, Reformative treatment is more likely to succeed in an educated
and orderly society than in uneducated and underdeveloped communities.
Fourthly, Reformation costs more to the state funds.
Fifthly, the success of reformative treatment is doubtful.
In conclusion, only one theory of punishment will not cause proper effect
unless administered with any other or the rest of the theories.
III]
Kinds of Punishments under IPC: -
Chap. III of the I.P.C. from Ss. 53 to 75 deal with the general provisions
relating to punishments. The Code has provided a graded punishment system to
suit different crime categories. S. 53 provides for five types of punishments that
can be awarded to a man convicted of an offence under I.P.C. Viz-
1.
2.
3.
4.
5.
Death
Imprisonment for life
Imprisonment with or without hard work
Forfeiture of property
Fine
Out of these five kinds of punishments, the first three concern the body of
the offender, whereas the latter two concern his wealth or property. A wide
discretionary power is given to the courts to award any punishment within the
maximum limits prescribed for an offence by the Code. The Code generally does
not provide a minimum limit of punishment to be imposed but lays down the
maximum limit beyond which the court cannot award punishment. Therefore, the
Code provides the sentence âshall be punished with imprisonment which may
extend toâŚ. yearsâ or âwith fine which may extend to ⌠Rupees.â
While exercising its discretion, in awarding punishment, the court shall
take into consideration the nature of the offence, the circumstance in which it was
committed, the degree of deliberation, the age, sex, character, and antecedent of
the offender, i.e., whether he is first-time offender, or a habitual or a professional
offender, etc.
In State of U P V/s M.K. Author
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Facts: - The accused killed his ailing wife as he could not provide the money
for her operation. He also killed his two children, as there would be no one to care
for them after their mother. However, the offence was committed out of poverty
and not for lust, vengeance, or gain.
Supreme Court held that life imprisonment and not capital
punishment were the appropriate sentences
.
A)
1)
Death Sentence (Capital Punishment):-
Introduction:-
Various forms of punishment have evolved and applied throughout the
ages. Torture, sadistic forms of executing death sentences, and all sorts of
cruelties in prison were the distinguishing features of the penal philosophy all
over the world until recent times.
Capital or death punishment is the most debated of the above punishments,
even since the time of Lord Budha when principles of Ahinsa were prevalent.
There are arguments for and against the retention of capital punishment. There
are merits as well as demerits to the retention of capital (death punishment).
2)
Death (Capital) Punishment under IPC:-
The sentence of death is the most extreme punishment provided under the
Code. This punishment occupies the topmost position among the grades of
punishments. It is imposed in extreme and grave cases. I.P.C. provides death
punishment as an alternative for the following offences Viz-
1.
2.
3.
Waging war against the Government of India (S.121).
Abetting mutiny, actually committed (S. 132).
Giving and fabricating false evidence upon which an innocent person
suffers death (S.194).
4.
5.
Murder (S.302).
Abetment of suicide of a minor, insane, or intoxicated person
(S.305).
6.
7.
Attempt to murder by a person under sentence of imprisonment for
life if hurt is caused (S.307).
Dacoity is accompanied by murder (S. 396).
In Mohd. Arif, Sunder, etc. v. State, etc. (Laws (SC) 2014-9-9)
The Supreme Court observed that- an extinguishment of the life of a subject by
the State as a punishment for an offence is still sanctioned by law in the country.
Art. 21 itself recognises the authority of the state to deprive a person of his life.
No doubt, many constitutional limits circumscribe such authority.
However, there has been great controversy for ages among judges,
lawyers, administrators, and social reformists. They question the utility of death
punishment. In most developed countries, death punishment has been abolished
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from the penal statutes. We will discuss some of the arguments for and against
the retention of capital punishment.
3)
Arguments in favour of Capital Punishment:-
The supporters of capital punishment base their claim on the following
arguments.
a)
Deterrence:-
Prima faci penalty of death has a deterrent effect on prospective
offenders than any other kind of punishment.
Elimination of dangerous criminals:-
b)
Death is the only punishment to eliminate dangerous and habitual
criminals from society forever.
c)
Reduce expenditure of State:-
Capital punishment reduces the unwanted increase in the number of people
in jail and increases the state's expenditures at the cost of citizens.
d)
Justice to Victim:-
Capital punishment by eliminating offenders assuages the victimâs
familyâs vengeance, thereby rendering them full justice. The recently constituted
Malimath Committee on âReforms of Criminal Justice Systemâ has also
suggested the need to make the criminal justice system more victim-oriented by
providing participation to them in the proceeding and giving compensation to
the victim.
e)
Sense of protection:-
Elimination of offenders provides a sense of protection and justice in
society
f)
Constitutionally valid:-
Capital punishment is held constitutionally valid by the Supreme Court in
Bachan Singh V/s State of Punjab
g)
Pardon or Commutation:-
S.54 of the I.P.C. empowers the appropriate government, i.e., either
Central or State, to commute the sentence of death to any other punishment.
Moreover, the constitution of India invested the Presidents of India and the
Governors of the states under Art. 72 and 161, respectively, with the power to
grant pardon (absolute or conditional), reprieve (temporary suspension of
punishment), respite (postpone punishment to a future date), remission (to
reduce the amount of punishment), or suspend, remit or commute the sentence
of any person convicted of any offence. These powers are purely executive in
nature, and the judiciary has nothing to do with it. However, the Governor can
not grant a complete pardon to a death sentence.
h)
âRarest of Rare caseâ:-
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In India, capital punishment is not awarded in all offences wherein capital
punishment is provided as an alternative punishment but only in the ârarest of
rare casesâ
.
The rarest of the rare case doctrine evolved from the Supreme Court in
Bachan Singhâs case. Therefore, in every murder case, death punishment is not
awarded. Still, only in rarest and rare cases, e.g., Aanjana Gavitâs case decided
in Kolhapur, wherein the accused woman with her two daughters, having
themselves women, used several children for committing pickpocketing and
eventually killed them. High Court of Mumbai has recently confirmed the
punishment of death for the other two female accused (Anjanabai has already
died). In the recent âDhananjai Chaterjiâ case, capital punishment was executed
on the accused, Dhananjai, who raped and killed mercilessly a teenage girl.
Therefore, awarding capital punishment is not a general trend but an exception.
In my view, this doctrine rather prohibits the execution of capital punishment in
general cases, even though capital punishment is provided therein.
Facts: - Accused committed brutal rape on the innocent girl of ten years. Eight
serious injuries on the private part of the victim girl show extreme brutality and depravity.
After such a brutal rape, the accused again, in a cruel manner, using a rope to throttle,
extinguished the life of a small girl.
Held: - that it is a fit case for enhancement of life imprisonment into the death
penalty
4)
Arguments against Capital Punishment:-
Following are some of the arguments levelled against the retention of
capital punishment, viz-.
a)
Cruel and Inhuman:-
Capital punishment is a cruel and inhuman type of punishment. It is the
punishment by which a person's life is put to an end through the legal process. In
short, capital punishment is cold-blooded legal murder. According to Baccaria,
the State has no right to take life since it cannot put life.
b)
No Reformation:-
Reformists stress the need to reform criminals more than to eliminate them.
Capital punishment does not provide any chance of improvement for criminals.
c)
Misuse:-
Justice Douglas says âmostly poor persons get capital punishment than
richerâ.
d) Cold-Blooded Legal Murder:-
2008 All MR (Cri.) 899
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According to some, capital punishment is cold-blooded legal murder.
e)
According to Metaphysics:-
According to metaphysics, life in all creatures is put by God alone, and
God alone has to take it out. Life cannot be taken away by any other person or
body (State, etc.) other than God.
B)
Imprisonment for Life: -
Imprisonment for life technically means a sentence that runs throughout
the remaining period of a convictâs natural life. However, the appropriate
government may commute the life imprisonment sentence up to fourteen years in
case of the offenderâs good conduct. Imprisonment for life is rigorous and not
simple.
C)
Imprisonment: -
There are three kinds of imprisonments, viz-
1)
2)
3)
Rigorous:-
In this form of imprisonment, the offender is put to hard labour,
such as grinding, digging the earth, drawing water, etc.
Simple:-
In simple imprisonment, the offender is given lighter work or not
given work at all.
Solitary Confinement (Ss. 73 and 74):-
It is an aggravated form of imprisonment wherein an offender is
put in an isolated cell. Thus, all his contacts with the other world are
severed. It is given to harsh and hardened convicts.
However, solitary confinement shall not exceed-
i) Beyond 3 months as a whole. (S. 73)
ii) Maximum 14 days at one time, and next with an interval of not less
than 14 days.
iii) 7 days a month with intervals of not less than 7 days if the
substantive imprisonment sentence exceeds 3 months but does not
exceed 6 months (S.74).
Solitary imprisonment is awarded for offences committed under I.P.C only,
but not under other âspecialâ or âlocal lawsâ. It cannot be awarded where
imprisonment is not part of the substantive sentence (i.e., where imprisonment is
awarded in default of a fine) or where the imprisonment awarded is simple.
However, according to many criminologists, this kind of punishment is
inhuman and perverse. If used in excess, it might turn a man of sound mind into
a lunatic.
D)
Forfeiture of Property:-
Forfeiture of property is inflicted in the following four types of offences-
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i)
Committing depredation on territories of any power at peace with
the government of India (i.e., friendly State) (S.126).
Waging war against any Asiatic power in alliance with the
Government of India. (S.125).
ii)
iii) Receiving property taken by war or depredation, as mentioned above
(S.127)
iv)
Improper purchase by a public servant of a property which, by virtue
of his office (he) is legally prohibited from purchasing (S.169).
Fine:-
E)
The fine is forfeiture of money by way of penalty. The court may impose a
fine along with or without imprisonment. The I.P.C. provides fines as punishment
for several offences.
Where no maximum fine limit is laid, the fine amount in such a case is
unlimited. However, such a fine should not be excessive (S.63).
IMPRISONMENT IN DEFAULT OF FINE:-
The court can also award imprisonment in default of a fine (S.64). In
this case, imprisonment is not in lieu of a fine but in default, i.e., it is the penalty
for non-payment of a fine and not a substitute punishment. Imprisonment in
default of payment of a fine does not liberate an accused from his liability to pay
the fine imposed upon him. Such imprisonment does not serve as a discharge of
fine but is imposed as a punishment for nonpayment. Fine awarded can be
recovered within six years from its award. Even his death does not discharge his
liability for a fine; it can be recovered from his property afterwards.
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 is
punishable with imprisonment as well as fine (S.65). Such extra punishment may
be rigorous or simple according to the substantive term of imprisonment. (S.66)
When the offence is punishable with a fine only, imprisonment in default
of the fine shall always be simple and-
i) It shall not exceed 2 months when the fine does not exceed Rs.50, and
ii) Shall not exceed 4 months when the fine does not exceed Rs.100, and
iii) Shall not exceed 6 months in any other case (S.67).
But when the offender is imprisoned in default of a fine and pays the fine,
his remaining imprisonment (in default of the fine) shall be terminated.
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