TYPES OF PUNISHMENT[1]

Table of Contents

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PUNISHMENT

QUESTION BANK

Q.1 “Abolition of capital punishment would be a grave danger to the security

of the society” 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

Imprisonment
Fine
Reformative theory
Solitary confinement

SYNOPSIS

I] Punishment; Aims and objects

II] Theories of punishment

1) Deterrent Theory

2) Preventive Theory

3) Retributive Theory

4) Reformative Theory

III] Kind of punishment under I.P.C.

A) Death sentence (Capital punishment)

1) Introduction

2) Death (capital) punishment under I.P.C.

3) Arguments in favour of capital

punishment

a) Deterrence
b) Elimination of dangerous

criminals

c) Reduce expenditure of state
d) Justice to victim
e) Sense of protection
f) Constitutionally valid
g) Pardon or commutation

4) Arguments against capital punishment

a) Cruel and inhuman
b) No reformation
c) Misuse
B) Imprisonment for life
C)

1) Rigorous

2) Simple

3) Solitary

D) Forfeiture of property
E) Fine

-Imprisonment in default of fine

I] PUNISHMENT; AIMS AND OBJECTS[2]:-

According to R. C. Nigam, “Punishment is the suffering in the person (physical) or property, inflicted by the society on the offender who has been adjudged the guilty of a crime under the law”. 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 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[3]:-

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[4]:-

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– “thief is not punished for having stolen a horse but so that others horses may not be stolen”.

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[5]:-

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[6]:-

In primitive society, the punishment was mainly retributive. The victim was allowed to take revenge (retribution) against a wrongdoer. The principle of ‘an eye for an eye, and a tooth for a tooth’ 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 victim’s 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[7]:-

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 doesn’t 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.”

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 ‘retributive’ or ‘deterrent,’ but it is regarded as reformative or ‘rehabilitative.’

Mahatma Gandhi states, “Hate the sin, but not the sinner”. The offender is treated as a patient, and punishment is to be administered to cure his disease.”

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[8]: –

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-

Death[9]
Imprisonment for life[10]
Imprisonment with or without hard work[11]
Forfeiture of property[12]
Fine[13]

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 “shall be punished with imprisonment which may extend to…. years” or “with fine which may extend to … Rupees.”

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

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) Death Sentence (Capital Punishment):-

1) 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-

Waging war[14] against the Government of India (S.121).
Abetting mutiny, actually committed[15] (S. 132).
Giving and fabricating false evidence upon which an innocent person suffers death[16] (S.194).
Murder (S.302).
Abetment of suicide of a minor, insane, or intoxicated person[17] (S.305).
Attempt to murder by a person under sentence of imprisonment for life if hurt is caused[18] (S.307).
Dacoity is accompanied by murder[19] (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 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[20]:-

Prima faci penalty of death has a deterrent effect on prospective

offenders than any other kind of punishment.

b) Elimination of dangerous criminals:-

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 victim’s family’s vengeance, thereby rendering them full justice. The recently constituted Malimath Committee on ‘Reforms of Criminal Justice System’ 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[21]:-

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) ‘Rarest of Rare case’[22]:-

In India, capital punishment is not awarded in all offences wherein capital punishment is provided as an alternative punishment but only in the ‘rarest of rare cases’.

The rarest of the rare case doctrine evolved from the Supreme Court in Bachan Singh’s case. Therefore, in every murder case, death punishment is not awarded. Still, only in rarest and rare cases, e.g., Aanjana Gavit’s 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 ‘Dhananjai Chaterji’ 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.

In the State of Maharashtra, V/s Haresh M. Rajput[23]

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 ‘mostly poor persons get capital punishment than richer’.

d) Cold-Blooded Legal Murder[24]:-

According to some, capital punishment is cold-blooded legal murder.

e) According to Metaphysics[25]:-

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 convict’s natural life. However, the appropriate government may commute the life imprisonment sentence up to fourteen years in case of the offender’s good conduct. Imprisonment for life is rigorous and not simple.

C) Imprisonment: –

There are three kinds of imprisonments, viz-

1) Rigorous[26]:-

In this form of imprisonment, the offender is put to hard labour,

such as grinding, digging the earth, drawing water, etc.

2) Simple:-

In simple imprisonment, the offender is given lighter work or not

given work at all.

3) Solitary Confinement[27] (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 ‘special’ or ‘local laws’. 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-

i) Committing depredation on territories of any power at peace with

the government of India (i.e., friendly State) (S.126).

ii) Waging war against any Asiatic power in alliance with the

Government of India. (S.125).

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).

E) Fine:-

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[28]:-

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.

*****

[1] शिक्षेचे प्रकार [सजा के प्रकार]

[2] शिक्षेची उद्दीश्ठे व हेतू [सजा का उद्देश्य]

[3] शिक्षेसाठीचे सिध्दांत [सजा के सिद्धांत]

[4] भितीदायक [डरावना]

[5] प्रतिबंधात्मक, सिद्द्धांत [निवारक, सिद्द्धांत]

[6] बदला (घेण्यासाठी) [प्रतिशोध (लेना)]

[7] सुधारण्यासाठी / सुधारणावादी सिद्धांत [सुधार करने के लिए]

[8] संहीतेमध्ये नमुद केलेले शिक्षेचे प्रकार [संहिता में उल्लिखित दंड के प्रकार]

[9] मृत्युदंड

[10] जन्मठेप [आजीवन कारावास]

[11] सश्रम अथवा साधा तुरूंगवास/कारावास [कठोर या साधारण कारावास]

[12] मालमत्ता जप्ती [संपत्ति जब्ती]

[13] (अर्थिक स्वरूपातील) दंड [(वित्तीय प्रकृति का) दंड]

[14] युध्द पूकारने [युद्धघोष]

[15] बंड घडण्यास प्रोत्साहन देने व त्याप्रमाने बंड घडणे [विद्रोह को प्रोत्साहित करणा और उसके मुताबिक विद्रोह होणा]

[16] खोटा पुरावा अथवा साक्ष देणे ज्यामुळे निश्पाप व्यक्तीस शिक्षा होते. [एक निर्दोष व्यक्ति की सजा के लिए झूठे सबूत या गवाही देना।]

[17] (गुन्हयास प्रेात्साहन) [अपराध को प्रोत्साहित करणा]

[18] जन्मठेपेची षिक्षा भोगत असलेलया कैदयाने जर एखादयास दुखापत केली तर [अगर आजीवन कारावास की सजा के तहत एक कैदी किसी को घायल कर देता है।]

[19] दरोडा व खून [डकैती और हत्या]

[20] भितीदायक [डरावना]

[21] माफी किंवा शिक्षेत सुट [क्षमा या सजा से मुक्ति]

[22] दुर्मिळातील दुर्मिळ घटना [दुर्लभ से दुर्लभतम घटनाएँ]

[23] 2008 All MR (Cri.) 899

[24] थंड रक्ताने व कायदेषीर पध्दतीने केलेला खून [एक कोल्ड ब्लडेड और लीगल मर्डर]

[25]अध्यात्मिक दृश्टया [आध्यात्मिक द्रष्ठ्या]

[26] सश्रम [कठोर परिश्रम]

[27] एकांतवासाची (कारावासाची) शिक्षा. [एकान्त कारावास (कारावास) की सजा।]

[28] दंड न भरल्यास तुरूंगवास (कारावास) [जुर्माना अदा न करने पर कारावास (कारावास)।]