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CONCEPT OF CRIME
UNIVERSAL CHARACTER OF CRIME
The concept of crime is essentially concerned with the conduct of
individuals in society. It is as eternal as society and everywhere some human being
have fallen outside the pattern of permitted crime. It is best to accept the fact that
crime cannot be abolished except in non-existent utopia. Weakness, anger, greed,
jealousy, some from the human aberration has come to the surface everywhere and
human sanctions have vainly beaten against the irrational, the misguided impulsive
and ill conditioned, A code of legal conduct is prescribed by the legislature in
order to protect life and property and preservation of human tranquility. Some
violations of law are bowed to occur by the members of society. The crime is
inevitable and universal phenomenon. According to Durkheirn:
“There is no society that is not confronted with the problem of
criminality. Its form changes the acts thus characterized are not the same
everywhere but everywhere and always, there have been men who have behaved
in such a way as to draw upon themselves penal repression ------- no doubt it is
possible that crime itself will have abnormal forms as e.g. when its rate is
unusually high this excess is indeed undoubtedly, morbid in nature. What is
normal, simply is the existence of criminality, provided that it attains and does not
exceed for each social type, a certain level ------- to classify crime among the
phenomenon of normal sociology is not say merely that it is inevitable although
regrettable phenomenon, due to incorrigible wickedness of men, it is to affirm that
it is factor in public health, an integral of all healthy societies.”1
The reality of our “brave new world” cannot be ignored, where
opportunities for crime abound and impunity is assured at a time when humanity,
having lost its moorings, is still grouping for new methods of social control. Even
a society, according to Durkheim possessing angelic qualities would not be free
from some violation of the norms of that society which may be made
unconsciously or consciously.
S.Venugopai Rao, former Director of the Institute of Criminology
and Forensic Science, gave a similar view when he says, “when it is difficult to
define crime or explain it coherently, it is equally difficult to find ways and mean
of controlling it when criminologists make revolutionary suggestions to eliminate
the prisons and reorient the concept of punishment, they are nearly expressing
their continuous search of the ideal.”2
CONCEPT OF CRIME
Concept:- Crime has been with us in varying degrees since time immemorial. It is
a legal concept and has a sanction of law and is also known as a living concept.
The changing concept of crime is dependent upon the social evolution of the
human beings all ones in the world. What is a crime in one country may not be a
crime in another. The microbe of crime seems to flourish as much as in the culture
medium of poverty as of prosperity and also in all parts of our planet.
Sir Leon Radzinowicz, Director of Institute of Criminology,
Cambridge observed “No national characteristics, on political regime, no system
of social welfare or criminal law of police or justice, of punishment or treatment
has made any country exempt from crime in the modem world and scarcely any
can claim to have saved its relentless increase.3
DEFINITION OF CRIME
Crime is a legal concept and has a sanction of law can not be
disputed in a democratic society. Many attempts have been made to define crime,
but it is not possible to discover the most scientific definition of crime. Many
attempts have been made by Rossi, Kenny, Russel, Blackstone, Ramangnosi and
several others, as: According to the old Utilitarian School the crime was “an act
which it is deemed necessary to forbid because of the harm which it produces or
tends to produce” or merely “an act forbidden by law”, or else “some act which is
detrimental to the public good” or merely, “an act forbidden by law.”
Sir William Blackstone 6 attempted to define at two different places
in his work. At one place, he says that crime is “an act committed in violation of
‘public law’ forbidding or commanding it,”
The ‘Public Law’ has several accepted meanings. Austin takes
public law as identical with Constitutional Law. In this sense, definition covers
only political offences, which are only a small portion of the whole field of crime,
If we were to follow Austin and interpret the definition given by Blackstone as
violation of Constitutional Law,7 i.e. Guarantee of one’s life, liberty and property,
the definition of crime would remain too narrow.
The Germans on the other hand, interpret, ‘Public Law’ to mean
both constitutional and criminal law. In this sense definition given by Blackstone
ceases to define because, we shall be using criminal law in defining a crime.
Others take positive law or municipal law, which would mean all laws made by
the state. In this sense, definition given by Blackstone becomes too wide; crime
would include every legal wrong or violation of law. So, definition given by
Biackstone is not satisfactory.
In second definition, Blackstone defines a crime as,
“A violation of the public rights and duties due to the whole
community considered as community.”8 This definition is slightly altered by
learned editor of Blackstone, Sergeant Stephen, who expressed it thus,
“A crime is a violation of a right, considered in reference to the evil
tendency of such violation as regards the community at large.”
It introduces a new error, namely, it limits to violation of rights only,
whereas Blackstone applied it to violation of both right and duty.
Ramangnosi, a distinguished Italian writer stated that crime is the
“voluntary act of a person of sound mind, harmful to other and the same time
unjust.”
Similarly Rossi, the founder of modern French school maintains that,
“the only thing which the social power can regard as crime is the violation of such
duties towards society and individuals as contribute to the maintenance of the
social order and are capable of absolute legal enforcement.”9
According to a standard French work on criminal law, “every
disturbance inflicted upon the social order is a moral crime, since such disturbance
is the violation of a duty — that of man to society. Hence, the acts with which
primitive justice has to deal with are of two kinds; firstly, those which bear the
imprint of an intrinsic immorality, and; secondly, those which are intrinsically free
from immorality, but assume an immoral character because involving a breach of
duty. In two cases social crime exists.”10
Tappan’s definition of crime as an international act or omission in
violation of criminal law needs explanation. The intention can be said to be guilty
when a man desires to bring about an act which the society or state feels to be
destructive of its own interest or to be dangerous for its stability, safety and
comfort or to be harmful to its members and which is considered to be breach of
duty to the public as a whole for which the offender is punished by the society or
the state. So, it cannot be said that, mens rea or a guilty intention means
knowledge, on the part of the accused that he is breaking law. It is clear from the
definition that intention is an essential ingredient of a crime. The intention is to be
gathered from all the circumstances appearing in the evidence. The intention is to
be inferred from motive of the accused, the nature of the instrument of attack, the
time and place of attack, the position and condition of the victim, number of
injuries inflicted, the force used, previous enmity, relationship of the accused with
the victim, premeditation, nature of attack, opportunity to inflict injuries and
opportunity to aim a particular blow act.”11
Roman jurists called crimes ‘Delicta Publica’ and the criminal trials
‘Judicia Publica’. Some jurists define crime according to the interference by the
state in such acts. In civil acts the State does not interfere until actual wrong has
been committed. In criminal matters the state maintains an elaborate police staff to
prevent offences and if one is committed an action may be instituted by the state
without the co operation of the party injured. To define crime in this way is only to
bring out the contract between civil and criminal wrongs, which can not be the
basis of a definition for two reasons; first, because civil proceedings are often
taken to obtain injunction against some anticipated wrong which has not yet been
committed while criminal acts are so trivial that the police do not interfere before
hand to prevent; second, there are some crimes for which a prosecution can not be
initiated by any private person without permission from the state, for example,
printing or publishing, demoralizing indecent details of judicial proceedings.
According to Austin crime is “wrong which is pursued at the
discretion of the injured party and his representatives is a civil injury, a wrong
which is pursued by the sovereign or his subordinates is a crime.”12
The definition is not of substance but of procedure only. Moreover,
under Indian Penal Code, 1860, there are several offences, which cannot be
pursued except by the injured party.
Professor Kenny modified Austin’s definition and defines crime to
be, “Wrongs whose sanctions is punitive and is in no way remissible by any
private person, but is remissible by the Crown alone, if remissible at all”.13
Professor Winfield points out that the word ‘Sanction’ used in the
definition must mean ‘Punishment’ and the word ‘Remissible’ must refer to
‘Pardon’ by the Crown and observes that it is on the word ‘Remissible’ that the
definition breaks down, for the only way by which the crown can remit a
punishment as by pardon.
Under the English Common Law, crimes, which are pardonable, are
only those, which are against the public laws and statutes of the realm. The
definition falls when it is applied to our own law because there are many offenses
under Indian Penal Code 1860 which are compoundable without even the
intervention of the court, where the punishment can be remitted by the private
individuals. Therefore, this definition of Kenny also breaks down.
In recent edition of Kenny, Mr. J.W.Cecil has given the following
description of a crime, “It is broadly accurate description to say that nearly every
instance of crime presents all the three following characteristics: -
(i) That it is harm, brought about by human conduct, which the sovereign
power in state desired to prevent.
(ii) That among the measure of prevention selected is the threat of
punishment.
(iii) That legal proceedings of a special kind are employed to decide whether
the person accused did, in fact cause the harm and is according to the
law to be held legally punishable for doing so.”
In British India, where the whole criminal law is codified, crime
means an act punishable by the Indian Penal Code, 1860 or other penal statutes.
Miller defines crime,
“Crime be the commission or omission of an act which the law
forbids or commands under the pain of punishment to be imposed by the state by a
proceeding in its own name.”
Similarly Professor Keeton says, “A crime today would seem to be
undesirable act which the state funds it most convenient to correct by the
institution of proceedings for the infliction of penalty, instead of leaving the
remedy to the discretion of some injured person.” In fact “there is no satisfactory
definition of crime which will embrace the many acts and omissions which are
criminal and which will at the same time exclude all those acts and omissions
which are not. Ordinarily a crime is a wrong which effects the security, well being
of the public generally so that the public has an interest in its suppression. A crime
is frequently a moral in that it amounts to conduct which is inimical to the general
moral source of the community.”14
Sir, Walter Scout says,” Treason arises from mistaken virtue, and
therefore, however, highly criminal cannot be considered disgraceful. A view,
which has been, required legislative approval. Again mere omission to keep
highway in repair shocks no body, yet it is a crime. On the other hand many
grossly cruel and fraudulent breaches of trust are merely civil wrongs e.g. A man
who stands by the river and watches a child drowning. He is a known swimmer,
but does not plunge into river to save the child, He may be guilty of committing a
grossly wicked, immoral act which may arouse universal indignation but he will
not be guilty of committing a crime not even a civil wrong.”15
Under section 40 of the Indian Penal Code, 1860, the word,
‘offence’ denoted a thing made punishable by the Code.
According to Professor Goodhart, “Crime is a serious anti social
action to which the state reacts consciously by inflicting pain.”
Russel says, “Crime is the result of human conduct which the penal
policy of the state seek to prevent.”
Dr. Wechler has said thus,” The purposes of criminal law are to
express a social condemnation of forbidden conduct.”
Firstly, there are offences in respect of which mens rea is
undoubtedly required.
Secondly, there are offences which, though requiring mens rea
possess a special character of their own.
Thirdly, there are offences, which can with a fair measure of
accuracy, be described as offences of strict liability and,
Fourthly, there are acts in respect of which their moral culpability is
a matter of controversy.
The traditional concept of crime is different from the new concept of
social and economic crimes. The traditional concept in criminal law is that no
crime can be committed without a guilty mind, while the requirement of mens rea
in case of social and economic crimes may be excluded either expressly or by
necessary implication.
According to Durkheim, “Crime is to be found in all known
societies. Because of this it seems difficult to regard criminal behaviours in the
general sense as being anything abnormal.”
According to Elener Huber Johnson, “Crime is an act which the
group regards as sufficiently menacing to its fundamental interests, to justify
formed reaction to restrain the violation.”
Aristotle regarded, “Crime as one of the factors of the cycle of
change.”18
Refeale Garofals, formulated his theory of ‘natural crime’.
MENTAL ELEMENT IN CRIME -
“Actus non facit reum nisi mens sit rea” is a well maxim of English
Criminal Law, which means that act itself does not make a man guilty unless his
intentions were so, The maxim is generally supposed to mean that there cannot be
such a thing as legal guilt when there is no moral guilt.
In Criminal Law, there are two essential elements necessary to
constitute a crime, namely
(a) the physical element i.e. actus reus.
(b) mental element i.e. mens reus.
The physical element that constitutes a crime is obvious, because it
is externally manifested by the wrongful act committed by the accused. But the
wrongful act did by the accused in all cases in not punished.
What is the true meaning of mens rea has exercised the minds of the
jurists for a very long time. Stephen says that this expression is meaningless. Dr.
Stallybrass observes: “It is not easy to arrive at a true meaning of mens rea at the
present day.”
Justice Stephen said; “Though this phrase is in common use, I think
it most unfortunate, and not only likely to mislead, but actually misleading, on the
following grounds; it naturally suggests that a part from all particular definitions
of crimes, Such a thing exists as a mens rea or ‘guilty mind’, which is always
expressly or by implication involved in every definition. This is obviously not the
truth, for the mental elements of different crimes differ widely. Mens rea means,
in the case of murder, malice aforethought; in the case of theft an intention to
steal; in case of rape, an intention to have forcible convection with a woman
without her consent. So, it appears confusion to call so many dissimilar states of
mind by one name. It seems contradictory indeed to describe a mere absence of
mind as a mens rea or guilty mind. To non-legal mind, it suggests that by the law
of England no act is a crime which is done from laudable motive, in other words
that immorality is essential to crime”.
“There can be no crime large or small without an evil mind”, says
Bishop,’ “It is therefore a principle of our legal system as probably it is of every
other, that the essence of an offence is a wrongful intent without which it cannot
exist”. The original source of this maxim, actus non facit reurn mens sit rea,
According to Coke in his 3 Institute 20, where it appears in the
following form,
“Reum Linguam Non Facit N/SI Mens Sit Rea”.
Coke’s maxim was repeated in several English decisions.
Pollock and Maitland observed: “Law in its earliest days tries to
make men answer for all the ills of an obvious kind that their deeds bring upon
their fellows”.
Until 12th Century although the modem notion of mens rea was non-
existent, but criminal intent was not entirely disregarded in some offenses where it
was taken into account in awarding punishment.
In 13th century, Roman law and its conceptions of Dolus and Culpa
influenced the English law, common law, which emphasized moral guilt, was also
influencing the English Courts.
In 14th & 15th centuries the notion that mens rea is necessary to
constitute a crime was will established.
During 16th Century, this law was settled that if there is criminal
intent, which is unaccompanied by an act, it will not be punishable.
By the second half of the 17 century, it was firmly established that to
constitute a crime, an evil intent was a necessary as the act itself.
EXCEPTION TO MENS REA
Professor Kenny observes that in statutory crimes it is usually not
necessary to establish more than that the accused committed the act, which was
forbidden by the statute under which he is charged. Such crimes, better known as
crimes of strict liability, are increasing both in number and importance in modem
times. He gives three kinds of cases where the legislature tends to create offences
where no mens rea is to be proved, they are
(a) where the penalty incurred is not great.
(b) The damage caused to the public by the offence is in comparison with the
penalty is very great
(c) The offence is such that there would usually be peculiar difficulty in
obtaining adequate evidence of mens rea, if that degree of guilt was to be
required. The master servant liability may be added for the acts of his
servants e.g. in nuisance and libel cases.
REFERENCES
1. Emile Drukheim; Crime As a Normal Phenomenon---------
2. Venugopal Rao, A Facets of Crime in India 1967 at P.18.
3. Quoted from Mohmood Bid Muhammad Article “Planning and Research for Crime Prevention” Social Defence Journal XII, no.47, Jan.1966 at P.107.
4. Bentham “Traite de legislation Pepnale”
5. Beccaria “Dei dellitir della pene”
6. Commentaries on the law of England. Vol. IV. P.15.
7. Art.21&23.
8. Blackstone, “Commentaries on the law of England. Vol. TV,’
9. Ramagnosi, “Genezi del diritt o penale” 54 et. Seq.
10. Chjauvean and Helia, “Theorie du Code Penal.”
11. Shiv Kumar, Delhi Law Review, Doctrine of Mens Rea, Vol. 3, 1974,
P.102.
12. Jurispridence, Lecture XXVII.
13. Prof. Kenny, Articles of Criminal Law.
14. Halsbury’s laws of England, 4 ed. Vol. II para 1.
15. R Vs Russel (1933), R Vs white (1871), 1 CCR 311.
16. Bonoger “Introduction to Criminology”.
17. Elemer Hubert Johnson: Crime Correction & Society, p. 1.
18. William Clifford-An Introduction to African Criminology.
19. Bishop, Criminal Law (9th Ed.), 287.
20. IN St. Augustine’s Sermons no. 118.C.2.
21. See R.C.Nigam…
CHAPTER-II
HISTORICAL
BACKGROUND OF
CRIME AND
PUNISHMENT
HISTORICAL BACKGROUND OF CRIME
AND PUNISHMENT
HINDU ERA
Kautiiya1 put the Principals of punishment well and he says that
punishment, if too severe, alarm men, if too mild, it frustrates itself. Punishment,
properly determined and awarded, makes the subjects conform to Dharrna (Right),
Artha (wealth) and Karma (desire). When improperly awarded due to ignorance,
under the influence of lust and anger, it enrages even hermits and (religious)
mendicants, not to speak of householders, Punishment not awarded would verily
foster the regime of the fish i.e. in the absence of the up holder of law the strong
would swallow up the weak. Protected by up older they would prosper.
A good summing up of the objects of punishment as conceived in
the Hindu Period is found in a recent study by M.Dutta2 where he says “If we
analyse the implied and explicit purpose of punishment, we find that punishment
was conceived, first, as a deterrent measures calculated to strike fear into the
hearts of the criminal minded and to check their immoral and anti-social passions.
This purpose was served particularly by disproportionately severe punishment and
by ‘branding’, ‘parading’ and ‘publicising’ punishment. The second object was the
prevention of the possibility of the culprits repeating their crime. So, the culprit
was imprisoned, fettered, killed or exiled. Retribution may be said to be the third
motive of punishment in two different senses; Retaliation and making the wrong
doer suffer the fruits of his own Karma. The first is particularly noticed in the
mutilation of that very limb by which the wrong was done (e.g. cutting off fingers
or hand of a thief, a tongue of a defamer). Punishments, fourthly, are conceived to
be an educative & therefore, a reformative process also. Sukra points out that
consistent with the Vedic teaching of non-injury to life, a culprit should be
educated (Siksayet) & made to work, He takes a very modem socio psycho logical
view when he says;
“Such persons were corrupted by bad company. The kind should
punish them and always educate them back on the right path. But punishment was
thought be, not only reformatory, but also purificatory in a moral sense. This is
more evident in the fact that punishment also included in different forms of
repentance, confession, prayer, penitential starvation and long periods of
penance.”
CLASSIFICATION OF PUINISHMENT
Dr. P.K.Sen.3 has elaborately explained the classification of
punishment in Hindu Law
“The chapter headed by Dandhabhedah deals with the usual four
fold classification based on the text of Brhaspati: \ Dhig danda, Dhana and Vadha
Danda.”
“Vag dhig dhanam vadhas caiva caturdha Kathito dameh, Purusam
vibhavam dosam Jnatva tam parikalpayet; Brhaspati”
“Punishment is four fold namely, admonition, re-proof, fine and
corporal. It should be meted out after the crime committed by him.”
The first-Vag-danda may be taken to mean punishing with words i.e.
giving a solemn warning such as “Thou hast acted most improperly.”
The second-Dhig-danda means punishing with strong censure such
as shame on thee, thou miscreant ; if differs from first in intensity, not in kind.
The third-Dhana-danda means punishing with fine, which may be of
two kinds, fixed, and fluctuating. In certain cases the fixed fine may easily be
imposed. Certain other cases don’t admit of such easy handling. Allowance must
be made in the latter class of the cases for some elasticity in view of repeated
inclinations to offence and other circumstances such as violence attending it.
When the offence is accompanied by violence the punishment is graded according
to circumstances, to fit Prathama sahasa (violence of first order). Madhayama
sahasa (violence of second order) & Uttam Sahasa (violence of last and extreme
kind)
Vadha requires detailed treatment. Vadha may be of three kinds,
pidana angaccheda and pramapana. Pidana (afflicting) is sub divided into 4 modes:
(i) tadana such as whipping or flogging.
(ii) Avarodhana or restraint of liberty by means of imprisonment.
(iii) Bandhana, restraint of liberty by chaining, fetters and the like without
actual imprisonment.
(iv) Vidambana i.e. exposing to ridicule and humiliation such as by shaving
the head of the offender, making him ride on an ass, branding his person
with a mark denoting his offence, proclaiming his offence with beat of
drum, making him patrol the city etc.
ANGACCHEDA, mutilation may be of different limbs and organs of the body.
Manu mention ten kinds of mutilation. Brahaspati prescribes fourteen, referring to
fourteen parts of the body which may be mutilated namely, hand, leg, organ of
generation, eye, tongue, ear, nose, half tongue, half leg, thumb and the index
finger taken together, forehead, upper lip, rectum and waist.
PRAMPANA: means capital punishment. It may be of the pure and
the mixed variety i.e. in the latter case mutilation or some other form of
punishment may be combined with the death sentence. The pure variety again is of
two kinds, ordinary (avictram) and extra ordinary (vicitram), The ordinary form of
execution is by means of ordinary weapons such pas sword and the like; the extra
ordinary is by means of impaling, or other awe methods.
It is noteworthy that according to Brahspati Vag-danda & dhig
danda, were within the jurisdiction of Vipras or Pradvivakas, whereas artha danda
and vadha danda were within the sole jurisdiction of the kind himself.6
KINDS OF PUNISHMENT
The different kinds of punishment prescribed by the Hindu Law, and
some of the principles on which they were directed to be administrated, have been
described by P.N,Sen.
“Yajnavalkya speaks of four classes of punishment, viz. censure,
rebuke, pecuniary punishment and corporal punishment, and says that these should
be used either separately or jointly according to the nature of the crime. Of these,
mere censure was the lightest form of punishment and rebuke came after it,
pecuniary punishment included fine and forfeiture of property and corporal
punishment included imprisonment, banishment, branding, cutting of offending
limbs, and lastly death sentence, It goes without saying that the measure of
punishment depended chiefly on the gravity of the offence; if the offence be not
very serious, the punishment must be light, while if the offence be serious the
punishment must be severe too.”
MUSLIM ERA
For the present purpose it its unnecessary to give a detailed
discussion of the theory of punishment in Muslim law. But the following brief
extracts from an authoritative book will suffice to give a general picture.
CLASSIFICATION OF CRIME
According to Muslim jurisprudence crime falls into 3 groups, namely:
22. Offences against God,
23. Offences against the state, and
24. Offences against private individuals.
Punishment for the first of these classes is “the right of God (Haqq
Allah)” while for the other two classes of offences the injured party may forgive or
compound with the wrong doer. Thus, curiously enough, manslaughter is not a
violation of God’s law nor of the king’s peace, but only a damage to the family of
the murdered man, which can be settled by paying money compensation (called
‘the price of blood’) to the next of kind of the victim, without the Executive Head
of the state or the Judge of Canon Law having to take any further notice of it, It
was only when the relatives of the murdered man refused to accept money
damages and insisted on retaliation, that the quazi had to pronounce the sentence
of death and the executive to enforce it.
The institute of Timur puts the matter with great clearness and force.
He writes,
“Robbers and thieves, in whatever place they might be found, or by
whomsoever detected, I commanded to be put to death.
And I ordained that if anyone seized by violence the property of
another the value of that property should be taken from the oppressor, and be
restored to the oppressed.
Concerning other crimes the breaking of teeth, the putting out of
eyes, the slitting and cutting of the ears and nose, wine drinking and adultery — I
ordained that whoever should be guilty of these, or other crimes, they should be
brought into the courts of the ecclesiastical and lay judges (the exact terms being
Qazi and Qazi ahdas meaning “ritual impurity) that the ecclesiastical judge should
decide on those causes which are determinable by the sacred laws (Shara) and that
those which didn’t fall under his cognizance (urfi bashad, i.e. pertain to the
customary or secular law) should be investigated and laid before me by the lay
judge.”
DESCRIPTION OF PUNISHMENTS UNDER MUHAMMADAN
LAW
The punishments for crimes were of four classes:-
Hadd
Tazir
Qisas
Tashhir
Hadd means a punishment prescribed by Canon law and considered
as ‘the right of God’, which, therefore, no human judge can alter.
Hadd must take certain prescribed forms of punishment viz.;
(i) Stoning to death for adultery; scourging for fornication (100 Stripes)
(ii) Scourging for falsely accusing a married woman of adultery (80 Stripes)
(iii) Scourging for drinking wine and other intoxicating liquors. For a free
man the punishment was 80 Stripes for wine drinking.
(iv) Cutting of the right hand for theft.
(v) For simple robbery on the highway, the loss of hands and feet; for
robbery with murder, death either by the sword or by crucifixion.
Tazir is punishment intended to reform culprit tazir is inflicted for
such transgression as have no hadd punishment and no expiation prescribed for
them. The kind and amount of tazir is left entirely to the discretion of the judges....
The judge can completely remit the tazir.
The process of trial is simple in contrast to that for hadd. Hence
attempt was often made to escape tazir by bribery.10
It was not the “Right Of God”. it could take one of these four forms:
(1) Public reprimand (tadib)
(2) Jirr or dragging the offender to the door (of the court house?) & exposing
him to public scorn somewhat like putting a man in the pillory;
(3) Imprisonment or exile;
(4) Boxing on the ear; Scourging. The stripes must not be less than 3 and not
more than 39.
In the Hedaya, a Persian compilation of Islamic law according to the
Hanafi school of jurists drawn up by Mulla Tajuddin, Mir Muhammad Hussain, &
Muila Shariatullah about 1780, that the above punishments should be inflicted
according to the offender’s rank, & that imprisonment and scourging were to be
confined to the 3 & 4 grades of people, the petty traders and common labourers,
respectively ( or as Manu would have put it, the vaishyas and Shudras), while the
lighter forms of punishment were reserved for the nobility and gentry.11
As for tazir-bil-mal or ‘chastisement in property i.e. fine only Abu
Hanifa pronounces it to be legal, but all other learned men reject it as opposed to
the Quranic law. Aurangzeb, who was a strict Hanafl and himself well-read in
canon law o& the literature of precedents (fatawa), issued an order to the Diwan of
Gujrat and also of other Subahs, in 1679, to the effect that as fine was not
permitted by canon law, every civil official (amal), Zamindar or other person
found guilty of an offence should, according to the nature of his act be imprisoned
or dismissed or banished, but not punished with fine.12
PRIVATE VENGEANCE AND PUBLIC DEGRADATION ETC
Qisas or retaliation: This was the personal right of the victim or his
next of kin, in the case of certain crimes notably murder. If he demanded the legal
punishment, the Qazi was bound to inflict it, and neither he nor the kind could
exercise the royal clemency by modification or abrogation of the sentence. If on
the other hand, the next of the kind of the deceased was satisfied with the money
damages, called price of the blood (Arabic diya) offered by the murderer, or
pardoned him unconditionally, it was his look and neither the qazi nor the king
was to take any further notice of the crime. For minor offences, the retaliation was
laid down by the Mosaic Law,” a tooth for tooth & an eye for eye” with certain
exceptions.13
Tashhr or public degradation was a popularly devised punishment of
universal currency throughout the Muslim world and even Hindu India and
medieval Europe. It is neither recognized nor condemned in the law books of
Islam but was inflicted by all Muslim qazis and kings, and even by the lay public,
as it was a mild form of lynching: In India, the offenders head was shaven, and he
was mounted on as ass with his face turned towards its tail, covered with dust,
sometimes a garland of old shoes placed round his neck, paraded through the
streets with noisy music and turned out of the city. “The Judge may blacken the
face of the culprit, cut his hair or have him led through the streets, etc.” This last
refers to Arabians practice.14
As for offenses against the state, such as rebellion, peculation and
default in the payment of revenue, the sovereign inflicted punishment at his
pleasure, because the Quranic law gives no guidance here. Among the prevalent
modes of putting an offender to death were having him trodden to death (the last
being also sanctioned by medieval English law). Tortures of various degrees of
ingenuity were resorted to. Theft (Sarqa) is punishable with the cutting of one
hand, one foot. But if the offender has robbed and killed, he is to be put to death…
and his body publicly exposed for three days on a cross or in some other way. The
punishment of death is here considered a haqq Allah and blood money is out of
question. All accomplices are punished in the same way. The judge can inflict the
above punishments, as hadd, only when all the legal conditions are fulfilled. The
legal inquiry has to be conducted; witnesses are necessary, or a confession. If the
thief has given back the article stolen before the charge is made, he is immune
from punishment.15
The capital sentence (qatl) is inflicted, after the offence has been
legally proved, in the following cases:-
(i) When the next of kin of a murdered person demands the life of the
murdered and refuses to accept the alternative of money compensation
(Diya or ‘price of blood)
(ii) In certain cases of immorality; the women sinner is stoned to death by
public.16
(iii) On highway robbery...
The Muslim Criminal Law compared more favorably with the
English Criminal Law as it was in force at that time, The English Law still
prescribed barbarous punishment and contained some glaring anomalies, while as
Hastings had declared; the Muslim law was founded ‘on the most lenient principal
and an abhorrence of blood-shed.17
A brief summary of Muslim law of homicide is quoted below from
one study18
“The law of the murder e.g. needed radical alteration if life was to be
made secure. Abu Hanifa, whose opinions were generally accepted by the Bengal
Judges, had drawn a sharp distinction between the two kinds of homicide known
by the terms Amd (willful murder) and Shahib (culpable homicide not amounting
to murder) although such distinction was not recognized by the Quran. The
distinction was based on the method by which the crime was committed. If a man
killed another by striking him with his fists throwing him from the upper floors of
a house, throwing him down a well or into a river, strangling him or with a stick,
stone, club or any other weapon on which there was no iron and which would not
draw blood, he was guilty only of shabih-amd, not of murder, and he could not be
capitally punished.’ A man was guilty of murder only if he used a dah (knife) or
some other blood drawing instrument and was liable to sentenced to death.
Persons guilty of Shabih-amd were merely sentenced to pay the blood-fine to their
victim’s relatives if those relatives chose to accept it. Abu Hanifa however,
declared that if a man repeatedly committed murder by strangling, he might be
executed. Abu Hanifa, however, had declared who was boron in the eightieth year
of Jeijira, had never taken part in the administration of justice, though he had been
greatly revered as a virtuous and scholarly theologian. It was said of him that he
left his writings and opinions open to the correction of his disciples in so for as
those opinions might be found to differ to the holy tradition; but although these
disciples, Abu Yusuf and Muhammad, the former being Chief Justice at Bhagdad,
did, it was said, help to bring their master’s doctrines into great renown, yet
nevertheless they entirely differed with him regarding punishment of homicide,
laying down the more rational doctrine that if the intention of murder be proved,
no distinction should be drawn with regard to the method employed.22
Abu Yusuf’s opinion, however never came to supersede that of Abu
Hanifa, and the important point we have to notice is that the latter’s view was
generally accepted and acted upon in Bengal at this time. In several other cases the
Mohammedan law which was administrated in Bengal did not permit murders to
be executed. Provided they were Muslims, neither fathers nor mothers suffered
death for the murder of their children, but were fined, they were liable to be
hanged only for murdering other people’s children. Grandfathers and
grandmothers enjoyed a similar immunity with respect to their grand children so
did a master for the murder of his slave, or a man for the murder of a son-in-law
provided that his daughter was actually living with her husband at that time.
Patricide or matricide however might be punished with death.24
Homicide was justifiable in the following cases: A woman might kill
a man who persisted in carrying on an indecent conversation “with violence and
ill-will” a man using a dangerous weapons in the streets of the town during the
night or outside the town during the day, might legally be killed. Under certain
circumstances a man might kill his wife if caught her in the act of adultery and
also her paramour; and he might slay a man who attempted to rape his wife or his
slave girl. The authorities who were followed in the Courts of Justice in Bengal
differed somewhat on this matter.
One law book lay down that a man might kill another who attempted
to rape his wife or slave girl. Another authority maintained than an adulterer might
be slain provided that, if he “made a noise” who give the offender a chance to
desist; second the adulterer neither fled nor desisted on hearing the noise; third the
offender was a Mussulman; and fourth the offender was seen in the very act.
The third authority asked, “A man finding another with his wife, it is
law full to kill him, should be known that the fornicator will cease his attempt at
his carrying out, or frightening him with weapons nor mortal his not to slay him.
Should be known that his death only will restrain him; it is permitted to slay him.”
A fourth authority emphasizes the necessity of producing witnesses
to prove the act of fornication “if a murder shall state that he has slain anyone on
account of fornication, and the heirs of slain shall deny his allegation, the murderer
having no witnesses, his assertion being without testimony, shall be deemed
inadmissible.”
A man might be slaying a person caught in the act of robbing his
house. But by far the most important reason why murderers frequently escaped the
death penalty was that provision of Mohammedan Law, which gave to the sons or
next of kin the privilege of pardoning the murderer of their parents or kinsman.
This misplaced power of life and death made the fate of a murdered largely
depend on the caprice, venality or indifference of the deceased’s main relatives.
BRITISH ERA
The Policy of the British being to interfere as little as possible with
Muslim Penal law, only such modifications were made as were required to remove
its glaring defects.
In 1772 for suppressing robbery a provision was made that dacoits
were to be executed in their villages, the villagers were to be fined and the families
of the dacoits were to become the slaves of the state. The provision penalizing the
villagers and the family, however, very shortly ceased to be in forced.27 The letter
of Warren Hastings, President of the Council dated 10th July 1973,28 recorded on
proceeding of council and discussed principles of Muslim criminal law as
expounded in theory and as applied in practice, and made several suggestion as to
severe punishment and for dacoits, irrelevance of instrument used for committing
homicide, the requirement of two witnesses in case of positive capital offense, etc.
It also throws considerable light as to the origin of sentence of transportation of
life in respect of every convicted felon and murder” not condemned to death by
the sentence of the Adawlat’. 29
Regarding homicide, by Bengal Regulation of 179330
(a) Nature of the instrument as signifying the intention was made immaterial in
homicide, the intention was to the gathered from the general circumstances
and the evidence, and
(b) The discretion left to the next kind of the murdered person to remit the
death penalty was taken away.
Thus the motive, not the method should determine the sentence. In
1791, the punishment of mutilation was abolished. All criminals adjudged in
accordance with the fatwa of law officers to lose two limbs were to suffer, in stead
of imprisonment with hard labour for seven years.32 Cornwallis introduced a
number of changes in criminal law by Cornwaliis Code.”
A Bengal Regulation of 1797 provided that in the cases of willful
murder, judgment was to be given on the assumption that ‘retaliation’ had been
claimed. The sentence could extend to death if that was prescribed sentence under
Mohammedan law. As regards fine of blood the judges were directed to commute
the punishment to imprisonment, which could extend to life imprisonment.33
By Bengal Regulation 53 of 1803, regarding escape by convicts, i.e.
convicts escaping from their places of transportation if apprehended, were directed
to be tried, and on conviction, were to be sentenced to death,34 “if no
circumstances appear to the court to render such convict an object of mercy.”
By Sec. 15 of Bengal Regulation of XVII of 1817, exemption of
Brahmins of Benaras from capital punishment was abolished.35
By Act 11 of 1857 (36) waging war, and other offences against the
state or instigating the same was made punishable with death or transportation for
life or rigorous imprisonment up to 14 years in addition to forfeiture of property.
By the Act 14 of 1849 regarding Mutiny, it was provided that every
person who, “maliciously and advisedly” endeavored to seduce any person or
persons, in the Military or Naval Forces etc. of East India Company from
allegiance to Her Majesty or duty to the said company, or endeavored to stir up
any person or persons to commit mutiny etc. was on conviction to be transported
for life or imprisoned up to 7 years.
By Act 14 of 1857, the offence of intentionally seducing or
endeavoring to seduce any offence or soldier form his allegiance to the British
Govt. or duty to East India Company exciting or causing others to excite mutiny or
sedition in army was made liable to be punishment of death or transportation for
life or imprisonment with hard labour up to 14 years, besides forfeiture etc.
By Act 5 of 1858, it was passed to deal with the persons, who
escaped from jails during mutiny for which punishment was transportation for life-
Sections 1 &2.
The waging war, the offence was dealt by Act 11 of 1857, preamble
and section 1 of which may be quoted.37
“Whereas it is necessary to make due provision for the prevention,
trial and punishment of offences against the State, it is enacted as follows:
“All persons owing allegiance to the British Govt. who after passing
of this Act, shall rebel, or wage was against the Queen or the Govt.
of East India Company, or shall attempt to wage such war, or shall
instigate or abet any such rebellion or the waging of such war, shall
be liable upon conviction, to the punishment of death, or to the
punishment of transportation for life or of imprisonment with hard
labour for any term not exceeding 14 years; and shall also forfeit all
their property and effects of every description. Regarding the
offence of preparing to wage war we may refer to Act 26 of 1858
(corresponding to 122 of Indian Penal Code, 1860), under which the
collection of men, arms, ammunition or other wise preparing to buy,
war against the Queen or the East India Company or instigating any
other person to commit such offence, was punishable with death or
transportation of life or imprisonment for life or imprisonment with
hard labor unto 14 years and also forfeiture of all property and
effects of every description. There is a proviso to this, “Provided that
nothing contained in this section shall extend to any place subject to
Regulation 14 of 1827 of the Bombay Code.”
Regarding the offence of preparing to wage war, we may refer to Act
26 of 1858 (corresponding to Sec.122 of the Indian Penal Code, 1860) under
which the collection of men, arms, ammunition or otherwise preparing to levy war
against the Queen or the East India Company or instigating any other person to
commit such offence was punishable with death or transportation for life or life
imprisonment or imprisonment with hard labour up to 14 years and also forfeiture
of all property and effects of every description.
An Act of 1857 should also be referred to, which made provisions
for trial of heinous offences in which martial law has been established.
Section 1 and 2 of Act 16 of o1857 may be quoted:
I. Whoever shall commit or attempt to commit any heinous offence in any
District or place in which Martial law has been or shall be established,
had or in any district or place to which this Act shall be extended by
order of Governor General of India in Council shall be liable, on
conviction for punishment of death or to the punishment for
transportation for life, or imprisonment with hard labour for any term
not exceeding 14 years and shall forfeit all his property and effects of
every description.
II. The words “heinous offence” shall be deemed to include an attempt to
murder, rape, maiming, dacoity, robbery, burglary, knowingly receiving
property obtained by dacoity, robbery or burglary, breaking and entering
a dwelling house or stealing therein intentionally setting fire to a village,
house or any public building, stealing or destroying any property
provided for the conveyance or subsistence of troupes, and all crimes
against person or property attended with great personal violence, and all
crimes committed with the intention of assisting those who are waging
war against the state or forwarding their designs.”
Muslim Criminal Laws, broad features as altered by Regulations on
the subject, before Indian Penal Code, 1860 was enacted may be indicated.
Regarding sentences,39 it was felt that discretion which the Muslim
criminal law left for heinous crimes was rather unlimited, and its administration
became arbitrary and uncertain. In the adjudication of punishment under the
discretion thus allowed, the position regarding sentence was often governed by a
consideration of the degree of proof rather that the degree of guilt and criminality
of the act established against the accused. It was considered necessary to amend
the law on these points, and Bengal Regulation did that. Before this position was
that the sentence of the court was to be regulated by Muslim Law except in cases
in which a deviation from it was expressly directed by any Regulation.
The operation of the law may be illustrated with reference to an
actual case. Four persons were charged with murder. The principal was sentenced
to death, one convicted of being an accessory before the fact and of bringing a
false accusation of murder against an innocent person was sentenced to Life
imprisonment; the remaining two convicted of privity of crime, were sentenced to
imprisonment of 3 years.
It was recognized that there was a great difference between an
offence entered upon with deliberation and a criminal intent and one committed
with premeditation and unprovoked by previous enmity and malice Intoxication
was considered as a ground of mitigation for punishment in certain cases, unless
willful.40
In cases where the Sessions court condemns a prisoner to suffer
death penalty or imprisonment for life, it was to transmit a copy of the sentence to
Nizamut Adawlut, and to execute the sentence till the final sentence of that court.
There seems to have been controversy as to whether a person, who is compelled
by another by a menace of death to murder a 3 person, could be excused for
murder.
One view was that in such cases the person compelled, as the
instrument rather than the author of homicide, and therefore, subject to
discretionary punishment only if the circumstances of the case so required.
Another view was, that both the parties were liable to murder.41
PUNISHMENT
The mode by which the state enforces its laws is forbidding the
doing of something or omission to do something. Punishments are of various
types. It may be mere reprimand, it may be fine, may be whipping; it may be
imprisonment-simple or rigorous; it may be even extended to death. But whatever
the form, punishment is always co related to a low of the start forbidding the doing
or the omission to the do something. Punishment is the suffering in person or
property inflicted on the offender under the sanction of law.
Punishment is the retribution due for violation of the rules of society,
which are made for its preservation and peace.
Bentham regarded the prevention, the punishment of mischief as the
sole aim of punishment. Other writers regard retribution as its chief mission, but it
is evident that so long as punishment was the concern of the person aggrieved,
retribution was the sole object.
The true doctrine of punishment in modern civilized state is,
therefore, now based on the prevention of crime, but it is only its main, though not
its sole object. According to Plato, both personal as well as public sentiments
demand that the person who has made others suffer unjustly should himself be
made to suffer in return. It is distinct from the moral side of an act with such
properly the courts are not concerned. They are concerned solely with the nature
of the act viewed as a crime or breach of the law. The law indicates the gravity of
the act by the maximum penalty for its punishment and the courts have to judge
whether the act committed falls short of the maximum degree of gravity or not.
The main object of punishment is the prevention of crime and the measure of
punishment vary from time to time according to the prevalence of a particular
form of crime and other circumstances. To shut a man up in prison longer than is
really necessary is only bad for the man himself, but also it is a piece of cruelty
and economically wasteful and a source of loss as to the community. The sentence
must be such as to serve as a deterrent to other.45 What should be an adequate
punishment with the maximum provided for an offence is primarily for the
convicting Court to decide, but that discretion should exhibit that a reasonable
proportion has been maintained between the seriousness of crime and the
punishment imposed. While courts should not pass a sentence disproportionately
severe as compared with the of offence committed, they should also be careful not
to award a sentence that on account of its manifest inadequacy would produce the
deterring effect on the offender and serve as an eye- opener to the rest. Although
no hard and fast rule can be laid down for measuring what in a particular case
would be proper sentence, yet courts are expected to observe a desirable
proportion between the gravity of the offence and the punishment for it.46 It is an
elementary proposition in criminal jurisprudence that should be proportionate to
the nature & gravity of crime.47
A court in passing a sentence should inflict such sentence as the
gravity or otherwise of the crime of which the accused has been convicted
warrants and merits, irrespective of whether the sentence inflicted will involve a
right of appeal or not. The court cannot take into account the prayer of the accused
that an appeal able sentence should be passed. The court should weigh the
sentence with reference to crime committed and the circumstances of the case and
not with reference to anything which may happen subsequently.
Punishment is in itself an evil and can be justified only by its effects
in deterring the offender from committing the offence in future and in deterring
others by the example from the commission of it, so, in each case punishment
must by minimum that will produce both these effects. Greater discretion should
be exercised in making the penalty fit the crime, and that the practice of
committing petty offenders to the Sessions Courts after 3 or 4 convictions should
cease.50
In case of habitual offenders: - where a man from his past conduct shows that he
intends to adopt a criminal character, three things should by borne in mind…..
(i) It is necessary to pass a sentence upon him, which will make him realize
that a life of crime becomes increasingly hard and doesn’t pay.
(ii) The sentence should serve as a warning to others who may be thinking
of adopting a criminal career.
(iii) The public must be protected against people who show that they are
going to ignore the rules framed for the protection of the society.51
Principles of punishment fall broadly into two classes:
(1) Those in which the Courts have favoured the passing of lenient sentences
and the observance of moderation.
2) Those to which the courts have encouraged the passing of heavy or
deterrent sentences53.
From the above classes of cases the following principles emerge: -
“The twin objects of punishment are to prevent a person who has
committed a crime repeating it and to prevent others from committing similar
crimes. The sentence passed must achieve these objects. The prevalence of a
particular crime in a particular area or during a particular period should also be
taking into account. One’s political, sentimental or religious pre-conceptions
should by strictly disregard.
“No sentence should ever appear to be vindictive. An excessive
sentence defeats its own object and tends to further undermine the respect for law.
The jails should be reserved for the reception of those who perform criminal acts
of not merely a technical but of criminal character. If the law permits a sentence of
fine as an alternative, there is no need of the sentence of imprisonment, unless of
course of the offender demand it.
“First and/or youthful offenders should invariably be treated
leniently, and in applying provisions of law like the first offenders’ Probation Act
or Sec.360 (Sec-562, old), Code of Criminal Procedure, 1973. It wont be better for
the court to err on the side of liberality. On the other hand, a person who has taken
to a life of crime or who has refused to take a lesson from his previous conviction
should be meted out severe punishment.
“A deterrent sentence is wholly justifiable when the offence is the
result of deliberation and pre-planning is committed for the sake of personal gain
at the expense of the innocent, is a menace to the safety, health or moral well
being of the community, or is difficult to detect or ::ace. Unlike those acts which
are universally acknowledged to be of a minal nature, an act which has only
recently been made an offence or which is not unlawful in other parts of the
country or state not essentially criminal in character deserves leniency except in
the case of persistent offenders.”
The dictionary meaning of ‘punishment’ is that which is inflicted as
a penalty.
Chambers Twentieth Chambers Dictionary gives the meaning of
punishment’, “as an act or method of punishing, penalty imposed for an offence
and punishing is defined as causing, suffering or retribution”.
Under the dictionary meaning, therefore, disqualification would be
included in a punishment. In this connection it would be useful to refer
GARANAND SING Vs EMPEROR.54 It was a case where there was an order-
inflicting fine and suspension under Motor Vehicles Act as follows;
‘In the case of convictions under the Motor Vehicles Act, in many
cases an order of suspension of a driving licence is a much more serious part of the
punishment than a sentence of a fine. It was argued that the order of suspension of
the driving licence was merely an execution act and not a part of the judicial
punishment, because the suspension of a licence is not mentioned as one of the
punishments, which can be inflicted under the Penal Code. This may well be, but
the list of punishments given in Section-53, Penal Code, is not exhaustive. Other
punishments, besides those mentioned in the section can be inflicted by Criminal
Court in certain cases e.g. whipping, detention in a Borstal institute or a Training
School, etc.’
The word ‘sentence’ given in Law Lexicon55, is as follows:
‘Sentence’ as a term is used Criminal Law, is the appropriate word
to denote the action of the court before which the trial is had to declare the
consequences to the convict of the fact thus ascertained.
In Strouds judicial Dictionary, 4 Edition, ‘sentence’ is defined as
follows:
“Sentence is defined in criminal Appeal Act, 1907, section — 21 as
amended by Criminal Justice Act, 1967, schedule 4, para 8. It includes any order
of the Court made on conviction. It does not include a sentence of imprisonment
for failure to surrender to bail”56
The natural meaning of the word ‘sentence’ therefore, would show
that disqualification of suspension of the driving licence, which is consequence
upon the conclusion of the guilt, and an order passed on conviction should amount
to sentence.
Besides the forms of punishment here prescribed two other forms,
namely, dismissal from the office and pillory or exhibition of the offender on a
donkey. They considered the first as unfit for executive action, and the second as
unequal.
“To employ a punishment which is more bitter than the bitterness of
death by a man who has still some remains of virtuous and honourable feelings,
and which is a mere matter of justice to the utterly abandoned villain, appears to us
most unreasonable.”
Flogging is not included in the list of punishments provided by the
Code. This punishment was also passed in review by the draftsmen and
condemned for the same reason as pillory and donkey-riding on the ground that, to
a person in decent station in life, it adds disgrace to the severity which could not
be justified except when inflicted upon juvenile offenders.
The draftsmen, however, admitted that their remarks did not apply to
juvenile offenders in whose case that form of sentence is both deterrent as well as
unexceptionable. In 1864, a Whipping Act was passed and it introduced the
sentence of flogging as a punishment for certain crimes, This Act was replaced by
the Whipping Act, 1909 (Act 4 of 1909) which modified the rigour of the old act
and confined the sentence of flogging to old and juvenile offenders only. Then
Abolition of Whipping Act, 1955 (44 of 1955), has abolished whipping and
repealed the Whipping Act, 1909 (Act 4 of 1909). There was an element of
brutality in the sentence of flogging and it was a stain on civilization. The Indian
Parliament has removed this blot disfiguring the statute book.
The list of punishments given in section 53, Indian Penal Code is not
exhaustive. Other punishments besides those mentioned in the section can be
inflicted by Criminal Courts in certain cases e.g. whipping, detention in a borstal
schools or institute, an order under section 356 Code of Criminal Procedure, 1973.
An order passed under Section 25, of Burma Prevention of Crime (young
offenders) Act, is a punishment with in the meaning section 3, Whipping Act. But
an order under Section 360 of Code of Criminal Procedure directing release on
probation is not a punishment. In the Madras Presidency the punishment of stocks
is prescribed for offenders of lower castes.
MEASURE OF PUNISHMENT
General Principles:- Broadly saying the general principles of measure of
punishment have been laid down by various authors on the basis of decided case
on this point, which are as under:
1. The quantum of punishment to be awarded in each case is a matter with in
the discretion of the court and should not exceed the interests of justice.
2. In awarding punishment, the court must bear in mind the objects for which
the law provides for punishment for offences. The court must pass such
sentence as fits the crime in each case.59
3. The punishment must not be too severe and too lenient.
4. There must be proper proportion between the gravity of the offence and the
punishment imposed.60
5. In fixing the punishment for any particular crime the court should take into
consideration the nature of the offence, the circumstances in which it was
committed, the degree of deliberation shown by the offender, the
provocation, if any, which he had received, the antecedents of the offender,
his age & character and so on. All these factors must be established by the
evidence and not by mere impressions formed on the spur of the moment.61
6. Except in cases where a minimum period of imprisonment has been
prescribed, as for instance of sections 397 & 398, the court has a discretion
to adjust the period of imprisonment according to the requirements of the
justice in each case subject to the maximum mentioned in the punishment
section.62
7. In case of fine, where a maximum amount is fixed by the punishment
section, the court ought not to impose the maximum amount as fine unless
the offence is of a serious character.63
8. The punishment to be awarded must be the least that will achieve the
double object of deterring the accused from repeating his offence and other
persons from committing a similar offence.
9. When the court imposes the maximum sentence allowed under the law, it
should record its reasons for doing so.
10. The real object of punishment being prevention of crime, the measure of
punishment naturally varies according to the prevalence of a particular form
of offence at a given time.65
11. The court cannot take into consideration the request of the accused that an
appeal able sentence should be passed.66
12. Justice should be even-handed. Other things being equal, same offence
should receive the same punishment.67
By ‘laying down standards’ it is meant that ‘murder should be
categorized according to the degree of its culpability and all the aggravating and
mitigating circumstances should be exhaustively and rigidly enumerated so as to
exclude all free play of discretion.
According to Cessare Beccaria, “Crimes are only to be measured by
the injury done to society”
But according to Von Hirsch, “Seriousness of a crime depends both
on the harm done by the act and degree of the actor’s culpability.”
So, the measurement of the degree of culpability of a crime is a
serious and intricate problem.
Criminal cases do not fall into set-behaviouristic patterns. Even with
in a single category offence there are infinite, unpredictable and unforeseeable
variations. There are countless permutations and combinations, which are beyond
the anticipatory capacity of human calculus.
A standardization of sentencing process, which leaves little room for
judicial discretion to take account of variations in culpability within single-offence
category, ceases to be judicial.
Legislature’s highest judicial duty is to recognize the limits on
judicial power and to permit the democratic process to deal with matters falling
outside of those limits.
So, the courts should not formulate rigid standards in an area in
which the legislative so warily treads. Only broad guidelines consistent with the
policy indicated by the legislative in Sec.354 (3) of Code of Criminal Procedure
can be laid down.
From Sec.354 (3) and 235(2) and other related provisions of the
Code of Criminal Procedure, 1973, it is quite clear that for making the choice of
punishment or for ascertaining the existence or absence of “special reasons” in that
context, the court must pay regard both to the crime and the criminal, relative
weight to be given to the aggravating and mitigating factors, depending on the
facts and circumstances of the particular case. These two factors are so intertwined
that it is difficult to give a separate treatment to each of them. In many cases cruel
and beastly manner of the commission of the murder is itself a demonstrated index
of the depraved character of the perpetrator. That’s why; it’s not desirable to
consider the circumstances of the crime and criminal in two separate water tight
compartments.
In several countries which have retained death penalty, pre planned
murder for monetary gain, or by an assassin hired for monetary reward is, also
considered a capital offence of first degree which in the absence of any
ameliorating circumstances, is punishable with death. Such rigid categorization
would dangerously overlap the domain of legislative policy. So, in order to qualify
for inclusion in the category of aggravating circumstances which may form the
basis of ‘special reasons’ under Sec,354 (3), circumstances found on facts of a
particular case, must evidence aggravation of an abnormal special degree.
Dr. Chitaley has suggested these mitigating factors:- i.e. In the
exercise of its discretion in the above cases, the court shall take into account the
following circumstances:-
1. That the offence was committed under the influence of extreme mental or
emotional disturbance.
2. The age of the accused if the accused is young or old he shall not be
sentenced to death or life imprisonment.
3. The probability that the accused would not commit criminal acts of
violence as would constitute a continuing threat to society.
4. The probability that the accused can be reformed and rehabilitated. The
state shall by evidence prove that the accused does not satisfy the condition
3 & 4 above,
5. That in the facts and circumstances of the cases the accused believed that he
was morally justified in committing the offence.
6. That the accused acted under the duress or domination of another person.
7. That the condition of accused showed that he was mentally defective and
that the said defect impaired his capacity to appreciate the criminality of his
conduct.
These are undoubtedly relevant circumstances and must be given
great weight in the determination of sentence. Some of these factors like extreme
youth can instead be of compelling importance. In several states of India there are
in force special enactments, according to which a ‘child’ i.e. ‘person who at the
date of murder was less than 16 years of age can not be tried, convicted and
sentenced to death or imprisonment for life for murder, nor dealt with according to
the same criminal procedure as an adult. The special acts provide for a reformatory
procedure for such juvenile offences or children.
Death Sentence is to be awarded in ‘rarest of rare’ cases and life
imprisonment is the rule and death sentence is an exception. The chief arguments
of the abolitionists, which have been substantially adopted by the learned counsel
for the petitioners, are as under: -
(a) The death penalty is irreversible. Decided upon according to fallible
processes of law by fallible human beings, it can be-and actually has been-
inflicted upon people innocent of any crime.
(b) There is no convincing evidence to show that death penalty serves any
penological purpose:
(i) Its deterrent effect remains unproven; as it has not been shown that
incidence of murder has increased in countries where death penalty
has been abolished, after its abolition.
(ii) Retribution in the sense of vengeance is no longer an acceptable end
of punishment.
(iii) On the contrary, reformation of the criminal and his rehabilitation is
the primary purpose of punishment. Imposition of death penalty
nullifies that purpose.
(c) Execution by whatever means and for whatever offence is a cruel, inhuman
and degrading punishment.
The Law Commission of India in its report after carefully sifting all
the materials collected by them, recorded their views regarding the deterrent effect
of deterrent effect of Death sentence as compared to life imprisonment: “Capital
punishment does not act as a deterrent. The main points that weighed in arriving at
this conclusion is: -
(a) Basically, every human being dreads death.
(b) Death, as a penalty, stands on a totally different level from imprisonment
for life. The difference is one of quality and not merely of degree.
(c) Those who are specially qualified to express an opinion on the subject
including particularly the majority of the replies received from state
governments, Judges, Members of Parliament and Legislatures and
Members of the Bar and police officers are definitely of the view that the
different object of capital punishment is achieved in a fair measure in India.
(d) As to conduct of prisoners released from jail (after undergoing
Imprisonment for life), it would be difficult to come to a long period of
years.
(e) Whether any other punishment can possess all the advantages of capital
punishment is a matter of doubt.
(f) Statistics of other countries are inconclusive as proving the different effect;
neither can they be regarded as conclusively disproving it”.
Some of the penologists justify capital penalty and life
imprisonment. According to them, the isolation theory of crime and punishment is
that the criminal law is a device for identifying persons dangerous to society who
are then punished by being isolated from society as a whole, so that they cannot
commit anti-social acts. The isolation theory is used to justify the death penalty
and long-term imprisonment. Obviously, this theory is effective in preventing
criminal acts by those executed or permanently incarcerated.”
The extreme penalty of death need not be inflicted except in gravest
cases of extreme culpability.69 Before opting for Death Sentence the circumstances
of the offender also require to be taken into consideration along with
circumstances of the ‘crime’. ‘Life Imprisonment is The Rule and, Death Sentence
is An Exception.” In other words Death Sentence must be imposed only when Life
Imprisonment appears to be an altogether inadequate punishment having regard to
the relevant circumstances of the crime, and provided, the option to impose
sentence of imprisonment for life cannot be conscientiously exercised having
regard to the nature and circumstances of the crime and all the relevant
circumstances. A balance sheet of aggravating and mitigating circumstances has to
be drawn up and in doing so the mitigating circumstances have to be accorded full
weightage and a just balance has to be struck between the aggravating and
mitigating circumstances before the option is exercised.70
Protagonists of the ‘an eye for an eye’ philosophy demand ‘death for
death’. The ‘humanists’ on the other hand press for the other extreme viz., rarest of
rare case’s formula for imposing death sentence has been evolved by Court. The
crime is viewed from the platform of the motive for, or the manner of commission
of the crime, or the antisocial or abhorrent nature of the crime, such as for
instance:
I. MANNER OF COMMISSION OF MURDER
When the murder is committed in an extremely brutal, grotesque,
diabolical revolting, or dastardly manner so as to arouse intense and extreme
indignation e.g.
(1) When the house of the victim is set aflame with the end in view to roast
him alive in the house.
(2) When the victim is subjected to inhuman acts of torture or cruelty in order
to bring about his/her death.
(3) When the body of the victim is cut into pieces or his body is dismembered
in a fiendish manner.
II. MOTIVE FOR COMMISSION OF CRIME
When the murder is committed for a motive, which evinces total
depravity and meanness, e.g. when
(a) a hired assassin commits murder for the sake of money or reward.
(b) a cold blooded murder is committed with a deliberate design in order to
inherit property or to gain control over property of a ward or a person under
the control of the murderer or vis-à-vis whom the murderer is in a
dominating position.
(c) a murder is committed in the course of the motherland.
III. ANTI-SOCIAL OR SOCIALLY ABHORRENT NATURE
OF CRIME
(a) When murder of a person is committed not for personal reasons but in
circumstances which arouse social wrath. For instance when a crime is
committed in order to terrorize such persons and frighten them into feeling
from place-or in order to deprive them of, or make them surrender, lands or
benefits conferred on them with a view to reverse past injustices and in
order to restore the social balance.
(b) In cases of ‘bride burning’ and what are known as ‘dowry- deaths’ or when
murder is committed in order to remarry for the sake of extracting dowry
once again or to marry another woman on account of infatuation.
IV. MAGNITUDE OF CRIME
When the crime is enormous in proportion
V. PERSONALAITY OF VICTIM OF MURDER:
When the victim of murder is:
(a) an innocent child who could not have or has not provided even an excuse,
much less a provocation, for murder.
(b) a helpless woman or a person rendered helpless by old age or infirmity.
(c) When the victim is a person vis-à-vis whom the murderer is in a position of
domination or trust.
(d) When the victim is a public figure generally loved and respected by the
community for the services rendered by him and the murder is committed
for political or similar reasons other than personal reasons.
Life imprisonment is the rule and death sentence is an exception. In
other to be an altogether inadequate punishment having regard to the relevant
circumstances of the crime, and the option to impose life imprisonment cannot be
conscientiously exercised having regard to the nature and circumstances of the
crime.
NECESSITY OF ADMINISTRATION OF PUNISHMENT
“A herd of wolves” it has been said, is quieter and more at one then
so many men, unless they had one reason in them, or have one power over them.”
According to philosopher Hobbes, “Man is by nature a fighting
animal and force is the ultimate ratio not of kings alone, but of all mankind,
Without “a common power to keep them all in aware,” it is impossible for men to
cohere in any but the primitive forms of society. Without doing so, civilization is
unattainable, injustice is unchecked and the life of man is, as the author of
Leviathan tells “solitary, poor, nasty, brutish, short” and us.
Men being what they are, each keen to see his own interest and
passionate to follow it. Society can exist only under the shelter of state, and the
law and justice of the state is a permanent and necessary condition of peace, order
and civilization.
ORIGIN OF ADMINISTRATION OF PUNISHMENT
In the beginning a man redressed his wrongs and avenged himself
upon his enemies by his own hand, and aided if needed, by the hands of his friends
and kinsmen; but presently, the sword of state defends him. All early codes, shows
us traces of the hesitating and gradual method in which the voice and force of the
state became the instruments of the declaration and enforcement of justice.
In the laws of the Saxon kings, Alfred, for instance, there is no
prohibition of private vengeance, but merely is regulation and restriction. In due
measure and in fitting manner it was the right of every man to do for himself that
which modern times is done for him by the state. As the royal justice grew in
strength, however, the law began to speak in another tone and we see the
establishment of the modern theory of the exclusive administration of justice by
the tribunals of the state. An interesting stage in the transition was trail by battle,
which was a straggly regularized judicial combat introduced into England by the
Normans.
The administration of justice has been already defined as the
maintenance of right with in a political community by means of the physical force
of the state. It is by the application by the State of the sanction of force to the rule
of right.
THE PURPOSES OF CRIMINAL JUSTICE AND PREVENTIVE
PUNISHMENT
The ends of criminal justice are four in number, and in respect of the
purposes so served by it, punishment may by distinguished as:
1. Deterrent.
2. Preventive.
3. Reformative, and
4. Retributive.
1. Of all these aspects first is the essential and all-important one, the others
being merely accessory. Punishment is before all things DETERRENT and
the chief end of the law of crime is make the evil doer an example and a
warning to all that are like-minded with him. As offences are committed by
reason of conflict between the interests, real or apparent, of the wrongdoer
and those of society at large, punishment prevents offences by destroying
this conflict. In the words of Locke, “an ill bargain to the offender.” Men do
injustice because they have no sufficient motive to seek justice, which is the
good of others rather than that of doer of it. The purpose of criminal law is
to supply by art the motives, which are thus wanting in the nature of things.
2. PREVENTIVE OR DISABLING is at 2nd place. Its primary and general
purpose is to deter by fear. And its secondary & special purpose is to
prevent a repetition of wrong doing by the disablement of the offender. The
most effective mode of disablement is the death penalty, which in practice,
in the time of peace, is confined to the crime of murder, though it is legally
possible also for treason & treason forms of piracy and arson. The
opposition to the death sentence is based partly on religions & partly on
social grounds; A similar secondary purpose exists in such penalties as
imprisonment, and forfeiture of office, the suspension of driving licenses,
and the old penalty of exile.
3. RETRIBUTIVE PUNISHMENT It gratifies the instinct of revenge or
retaliation, which exists not merely in the individual wronged but also by
way of sympathetic extension in the society at large. Although the system
of private revenge has been suppressed, the emotions and instincts that lay
at the root of it are well extant in human nature. Although in their lawless &
unregulated exercise and expression they are full of evil, there is in them
none the less an element of good. The emotion of retributive indignation in
its self-regarding and its sympathetic forms is even yet the mainspring of
the criminal law. Did we punish criminals merely from an intellectual
appreciation of expediency of so doing & not because their crimes arouse in
us the emotion of anger and the instinct of retribution, the criminal law
would be but a feeble instrument.
It is a very widely held opinion that retribution is in it, apart
altogether from any deterrent or reformative influences exercised by it, a right and
reasonable thing, and the gist reward of iniquity. Kant e.g. expresses the opinion
that punishment can’t rightly by inflicted for the sake of benefit to be derived from
it either by the criminal himself or by society, and the sole and sufficient reason &
justification of it lies in the fact that evil has been done by him who suffers it.
Punishment is in itself an evil and can be justified only as the means of attaining
greater good. Retribution is in itself not a remedy for the mischief of the offence,
but an aggravation of it.
A more definite form of idea of purely retributive punishment is that
of expiation. In this view, crime is done away with, cancelled, blotted out, or
expiated, by the suffering of its appointed penalty. To suffer punishment is to pay
a debt due to the law that has been violated. Guilt plus punishment is equal to
innocence. According to Lilley, “Whereby he has transgressed the law of right, has
incurred a debt. Justice requires that the debt be paid, that the wrong be expiated...
This is the first object of punishment to make satisfaction to outraged law.”
Revenge is the right of the injured person. The penalty of
wrongdoing is a debt, which the offender owes to his victim, and when the
punishment has been endured the debt is paid, the liability is extinguished,
innocence is substituted for guilt. The object of true redress is to restore the
position demanded by the rule of right, to substitute justice for injustice to compel
the wrongdoer to restore to the injured person that which is his own. The fact that
in the expiatory theory satisfaction is conceived as due rather to the outraged
majesty of the law, than to the victim of the offence, merely marks a further stage
in the refinement and purification of the primitive conception.
4. REFORMATIVE PUNISHMENT: Offences are committed
through the influence of motives upon character and may be prevented
either by a change of motives or by a change of character punishment;
Punishment as deterrent acts in the former method, punishment as
reformative in the latter. This curative or medicinal function is practically
limited to two particular species of penalty, namely, imprisonment and
probation. It would seem that this aspect of criminal law is destined to
increasing prominence. The new science of criminology would go for
towards identifiying crime with disease, and would willingly deliver many
classes of criminal out of the hands of the men of medicine.
The purely reformative theory admits only such forms of punishment
as subservient to the education and discipline of the criminal, & rejects all those,
which are profitable only as deterrent or disabling. Death in this view is no fitting
penalty; we must cure our criminals, not kill them. Flogging and other corporal
inflections have already been exercised from the law as they are degrading and
brutalizing both to those who suffer and to those who inflict them, & so fail in the
central purpose of criminal justice. Imprisonment and probation, indeed, as already
indicated, are the only important instruments available for the purpose of a purely
reformative system. Imprisonment, however, to be fitted for such a purpose,
requires alleviation to a degree quite inadmissible in the alternative system. If the
criminals are sent to prison in order to transform into good citizens by physical
intellectual and moral training, prisons must be turned into dwelling houses for too
comfortable to serve as any effectual deterrent to those classes from which
criminals are chiefly drawn, It is also not effect in case of incorrigible offenders.
The perfect system of criminal justice is based on the neither the
reformative nor deterrent principle exclusively, but is the result of a compromise
between them. In this compromise it is the deterrent principle, which possess
predominant influence. It is an important truth, unduly neglected in times past, that
to a very large extent criminals are not normal and healthy human beings, and that
crime is in great measure product of physical and mental abnormality and
degeneracy. Too much attention has been paid to the crime, and too little to the
criminal. The more efficient the coercive action of the state becomes, the more
successful it is in restraining all normal human beings from the dangerous paths of
crime, and the higher becomes the proportion of degeneracy among those who
break the law.
The reformative element must not be overlooked, but neither must it
be allowed to assume undue prominence. In the case of youthful criminals and
first offenders the chances of effective reformation are greater than that of adults
who have fallen into crime more than once, and the rightful importance of the
reformative principle is therefore, greater also. Sexual offenses admit more readily
of reformative treatment than others. In orderly and law-abiding communities
concessions may be safely made in the interests of reformation, which is more
turbulent societies would be fatal to the public welfare.
PUNISHMENTS UNDER IPC
The punishments are provided under Sections 53 to 75 of the Indian
Penal Code, 1860 out of which five sections (56, 58, 59, 61 & 62) have been
repealed. The offenders are liable to following punishments:
1. Death.
2. Imprisonment of life.
3. Solitary Confinement.
4. Forfeiture of property.
5. Transportation.
It is the duty of the Court to direct in the sentence that the
Imprisonment awarded by it is either rigorous or simple or partly rigorous or
partly simple.72
The maximum term of Imprisonment that can be awarded should not
exceed 14 years73 and should not be less than 24 hours.74
It the accused is charged under Sec. 397 & 398, the Imprisonment
awarded shall not be less than 7 years. In case of rigorous imprisonment, the
prisoner is put to hard labour while in the case of simple imprisonment he is
confined to Jail only.
There is third type of confinement known as solitary confinement.
This can be awarded to persons punished with rigorous sentence with the
condition that whole period of Solitary Confinement should not exceed 3 months.
According to Sec.74
(a) Solitary Confinement shall not exceed 3 months in alleviation;
(b) 14 days at a time with intervals of not less than 14 days;
(c) 7 days in a month with inter vales of at least 7 days if the term of
imprisonment exceeds 3 months;
The Punishment as provided for certain offenses can be enhanced in
case of old offenders. According to Sec.75 if a person having been convicted of an
offence against coins or stamps, punishable with imprisonment 3 years or more is
again found guilty of the same offence, he shall be punished with imprisonment
for life or for a period of 10 years.
Forfeiture of property under the Code was provided in sections 61 &
62, which have been repealed in 1921. But under Sections have 126, 127 & 169,
forfeiture of property can be ordered.
FINE - Where no specific amount of fine is to be imposed is
mentioned, it shall be discretionary but not excessive.
The law of cumulative Punishment is contained in Sections 71 & 72
of Indian Penal Code, 1860.
CONCEPT OF LIFE IMPRISONMENT UNDER DIFFERENT
STATUTES
(A) THE PREPVENTION OF FOOD ADULTERATION ACT,
1954
Proviso to Sec. 16 of the Act provides that:-”If such article of food
or adulterant, when consumed by any person is likely to cause his death or is likely
to cause such harm on his body as would amount to grievous hurt with the
meaning of Sec.320 of Indian Penal Code, 1860, he shall be punishable with
imprisonment for a term which shall not be less than 3 years but may extend to
term of life and with fine which shall not be less than 5,000 Rupees.
(B) COMMISSION OF SAT! PREVENTION ACT, 1987
Sec.4 of the Act, which deals with abetment of Sati, mandates that: -
“(1) notwithstanding anything contained in the Indian Penal Code,
1860, if any person commits sati, who ever abets the commission of such sati,
either directly or indirectly, shall be punishable with death or imprisonment for life
and also liable to fine;
(2) If any person attempts to commit sati, whoever abets either
directly or indirectly, shall be punishable with imprisonment for life and also liable
to fine;
(C) ARMS ACT, 1959
Sec.25 (1-AA) of this Act provides that: -
“Whoever manufactures, sells, transfers, tests or proves or exposes
or offers for sale or transfer or has in his possession for sale, trainer conversion,
repairs text or proof, any prohibited arms shall be punishable with imprisonment
for a term which shall not be less than 7 years may extend to imprisonment for life
and also liable for fine.
Similarly Sec.27 (2) provides that: -
“Whoever uses any prohibited arms or prohibited ammunition in
contravention of Sec.7 shall be punishable with imprisonment for a term which
shall not be less then 7 years but which may extend to life imprisonment & shall
also be liable to fine.
(D) THE DRUGS & COSMETICS ACT, 194075
Sec.27 of the Act, which deal with penalty for manufacture, sale, etc.
of drugs in contravention of this Act, provides that: -
“Whoever himself or by any other person on his behalf,
manufacturers for sale or for distribution, or sells, any drugs deemed to or by
adulterated under Sec. 17-A or spurious under Sec. 1 7B or which when used by
any person or in the diagnosis, treatment mitigation, or prevention of any disease
or disorder is likely to cause his death or is likely to cause such harm on his body
as would amount to grievous hurt with the meaning of Sec.320 of Indian Penal
Code, 1860, solely on of such drug being adulterated or spurious or not of standard
quality, as the case may be shall be punishable with imprisonment for a term
which shall not be less then 5 years may extend to life imprisonment and Rs.
10,000 as fine.
REFERENCES
1. Kautilya cited in Dr. P.K,Sen, “ Penology old and new” (Tagore Law
Lectures 1929), (1943 Edn.), p.104.
2. M.Dutta, “Political, legal and Economic Thought in Indian Perspective”, in
Moore (Editor) Philosophy & Culture-East and West, University of Hawaii,
1962), p.569, 591.
3. SupraNote 1, p.126-128.
4. Dandaviveka Gaekwad’s Oriental Series, Vol.52, p-20.
5. Supra Note 4, p.
6. Supra Note 4, p.12.
7. Dr. P.N.Sen, Hindu Jurisprudence,((Tagore Law lectures, 1909) (1918)
Edn.). pp.342-243.
8. Jadunath Sarkar, Mughal Administration, (1952), page 101 to 109.
9. Davy Institutes of Timur, p-2Sl & 253, corrected by reference to the
Persian text.
10. Encyciopida. Islam iv 710.
11. Hedaya, 203-204; full details in Hughes, 632-634.
12. Mirat-t-Ahmadi, i.293.
13. Hughes, 481, Encyc. 1st. ii. 1038.
14. Encyclopedia, Islam.i.132.
15. Supra Note 14 iv. 173-174.
16. Ency. 1st, S.V.Zina iv 1227.
17. Monckton Jones, Hastings in Bengal, p.331 cited by Aspinall, Cornwallis in
Bangal, (Manchestar University Press), 1931, p.61.
18. Aspinall, Cornwallis in Bengal (1931) p.53-56.
19. Bengal Reve. Cons.28 Nov. 1788; 30-12-1789.
20. Ibid.
21. Supra Note 19,21 July, 1790.
22. Supra Note 19; 19 Aug 1789. This information was given to Janathan
Duncan, the company’s Resident at Benaras, by Mohammadan Judges of
the Benaras Courts.
23. SupraNote 19; 28 Nov. 1789; 30 Dec. 1789.
24. Supra Note 19; 30 Dec. 1789; 20 June 1792.
25. Art. 35 of the Plan for Admn. of Justice in Bengal framed by Committee of
Circuit Prescribed by Hastings.
26. Aspinall, Cornwallis in Bengal (1931), p.65 f.n. 4, citing Bengal letter to
court dated Nov 3, 1772
27. Bengal Revenue Consultations, Dec 29, 1785
28. Cole brook digest, supplement, Calcutta (1807), p 114
29. SupraNotel9,p115
30. (Sections 50,52,55,76 Bengal Regulations 9, 1793 substituted by
Regulation 4, 1797)
31. Harrington, Vol 1 pages 312, 313
32. SupraNote28,p 159
33. Bengal Regulation 4 of 1797 ( March, 1797), Sec 3
34. Bengal Regulation 53, 1803, Sec 3, Clause second
35. BengalRegulationl7ofl8l7,Sec 15
36 An Act for the prevention, trial and punishment of offences against State
(30 May, 1857)
37 Ibid
38 Act 26 of 1858 (Sec 1)
39 Beaufort, Digest of Criminal Law, (1846), p 16, para 43
40 Ibid,p33,parall7
41 Supra Note 39, p 29, para 93
42 Principles of Penal Law, Pt-2 Chapter III, p 396 (Vol I, Coil , Ed)
43 Mercer’s Criminal Responsibility, p-i9
44 Bentham’s Principles of Penal Law, Pt 2, Bk I pp 406
45 State Vs Baichandra Waman Pethe, AIR 1966 Bom 122 at p 126
46 StateVs KapurSinghAlRl953Pepsull8atp 119
47 Emperor Vs Maiku AIR 1930 All 279
48. Emperor Vs. Yar Mohd. AIR 1931 Cal. 448 atp. 450.
49. Mst. Nanhi Gand Vs. Emperor AIR 1972 Nag. 221.
50. Kind - Emperor Vs. Gala Mana AIR 1924 Born. 453.
51. Mohd Hanif Vs. Emperor AIR 1942 Born, 215 at p. 216.
52. Jainarain Shah Vs. Emperor; AIR 1944 Pat. 16, Emperor Vs. Sakinbar
Badrviding, AIR Born. 70.
53. Mohd. Hanif Vs. Emperor AIR 1942 Born. 215.
54. AIR 1965 M.P. 122.
55. Law Lexicon by P.R.Aiyar.
56. R. Vs. Harman (1959) 2 Q.B. 134.
57. Mohd. Shabir Maulamaiya vs. State of Maharasthra, 1977 Mah. U 338.
58. SCR 1091.
59. AIR Manual, IPC, 1860 p. 780.
60. AIR 1944 Pat. 16 (16).
61. Pat. 1820.
62. SC 392, 1983 Raj. LR 854.
63. Cri.LJ415D.B.
64. All. 919, 924.
65. Lab. 239(2).
66. Pepsu9(21).
67. cri. U 1181 (DB).
68. Report of Law commission of Indian on capital Punishment,
69. Bachan Singh Vs. State of Punjab AIR 1980 SC 898.
70. Machhi Singh Vs. State of Punjab. AIR 1983 SC 957.
71. Jeremy Taylor, Works-XII, 306
72. Sec.6OofIPc.
73. Sec.55 of IPc.
74. Sec.5lOofIPC.
75. Sec.27 Substituted by Act 68 of 1982, w.e.f 1-2-1983.