This article is written by Chitrankshi, an intern under Legal Vidhiya
ABSTRACT:
This article is regarding the concept of punishment under the Indian Penal Code, 1860. And
why does the same crime have different punishment for different offenders. After reading this
article, the reader will get to know about what all factors are kept in mind while deciding a
punishment sentence for the criminal by the courts.
INTRODUCTION:
In layman language, punishment has now become a necessary revengeful process. Under the
law, punishment is retaliation for the criminal to cause him suffer in person or property
destroyed by the criminal. It is basically how a criminal stops the commitment of crimes
against any person, property and government.
There are numerous types of punishments, namely- rehabilitative, restorative and retributive.
Sentencing policy:
Sentences are those judgements that bring out the punishment for any particular offence.
For the measurement of sentencing policy, the Indian Penal Code has certain factors:
Gravity of the violation
Seriousness of the crime
Its general effect upon public tranquillity
The sentencing policy in any crime is standardized according to the measures of
punishment and the measure of guilt, both of which are interrelated.
The Malimath Committee was established by the Ministry of Home Affairs, in March 2003,
in India. The committee was formed with the purpose to give recommendations on the
sentencing guidelines for the Indian Judiciary. It stated that sentencing needs to have
guidelines issued to minimize the uncertainty of awarding sentences. The lack of uniformity
resulted in wide discretionary power in the hands of the judges to decide the sentencing
duration, which causes uncertainty in the sentencing policy.
The British Parliament’s White paper described the aim of having a sentencing policy as
“deterrence and protection of society from evils”. The lack of sentencing policy will affect
the judicial system and harm the society as well.
There are no standardized sentencing guidelines and hence no uniformity of punishments in
India. Procedural rules just impose the minimum and maximum penalties but don’t specify
the guidelines which need to be followed while imposing those sentences.
The ultimate goal is to give an appropriate and just sentence.
The punishment cannot exclusively depend upon the nature of crime but is also based
considering the personality or the type of the offenders.
Case reference- In the Nirbhaya rape case, four people were convicted for rape and murder.
The juvenile was given a maximum sentence of imprisonment of three years according to the
Juvenile justice act that allows for juveniles 16 years or older to be tried as adults for heinous
offences like of murder and rape. Heinous can be punished with imprisonment of seven years
or more. While the remaining convicts were found guilty and were sentenced to death by
hanging.
Intention:
It is a state of mind which must be necessarily be present with the act of committing the
crime. It is divided into three types- general intention, specific intention and constructive
intention. Intention plays a very important role behind how a crime is affected.
Background:
The criminal history of the defendant and the facts of the case help the judge in deciding the
time period for the defendant to be spent in prison. The circumstances of each case and the
situation of any offender in each case are different.
The depletion of behaviour by the application of an unpleasant stimulus is called positive
punishment. While removing a peaceful stimulus is known as a negative punishment.
THEORIES OF PUNISHMENT:
1)Deterrent theory of punishment:
The main aim of law is to make the offender an example and the punishment given to him- a
warning to the like-minded criminals. To neutralize the satisfaction incurred on committing
the crime, an equal amount of pain is inflicted upon the criminal so that he gives up the idea
of committing the crime.
There are 3 main components of this theory:
Severity being the first. It talks about the degree of punishment. Punishments that are
very severe are unjust. Also, if the punishment is not severe enough, it won’t have any
effect on the criminals to stop them from committing a crime.
Certainty: It means that the punishments happen surely whenever a crime is
committed. Philosopher Beccaria said that if the individuals know that their wrongful
acts will be punished, then they will not commit the crime the future.
Celerity: The punishment for any crime must be given quickly in order to deter the
crime. The faster the punishment is imposed, the more effective it is.
2)Preventive theory of punishment:
This aims to disable a criminal from committing a crime. This is done by sentencing the
criminal to death, imprisonment, etc. This believes that crimes can be prevented when the
criminal and his notorious activities are kept in check. This could be said as another form of
deterrent theory.
Case Law:
Surjit Singh v State of Punjab: In this case, one of the accused, a policeman, entered the
house of the deceased and had an intention to commit rape but he failed to do so as the as
sons of the deceased started shouting for help. Another accused suggested to the policeman
that he should kill the deceased. The accused was then held liable under section 450 of the
Indian Penal Code. While contrarily, the death penalty or capital punishment is more like a
temporary form of disablement.
3)Reformative theory of punishment:
This theory is based on the principle that positive thinking is a crucial point in the stoppage of
crime. This includes renewal of the criminal and the beginning of a new life for him and this
happens to be a rehabilitation process rather than a punishment. It believes in curing the
offender and not killing him.
It is also called the Rehabilitative theory of punishment. According to is, the offenders are not
inherently evil or irredeemable, but individuals who can be reformed and reintegrated into
society with appropriate interventions. Rehabilitation programs are designed to address the
underlying root causes of crime, like poverty, mental illness, substance abuse, etc. They also
provide offenders the skills and resources which they need to lives that abide by laws.
The reformative theory of punishment is based on the following principles:
Human dignity: Offenders have a right to be treated with dignity and respect, even though
they have committed crimes.
Rehabilitation: The goal of punishment should be the rehabilitation of offender and not just
simply punishing them.
Individualization: The punishment should be made according to the individual offender and his circumstances.
Reintegration: The goal of punishment should be reintegration of the offenders into the
society and not their isolation from it.
4)Retributive theory of punishment:
‘An eye for an eye and a tooth for a tooth’. It says that a person should be dealt with in the
same manner in which he treats and deals with other people. This is basically based on the
primitive vengeance theory. It says that a criminal can never be treated in an extremely
forgiving manner but fails to understand and eliminate the root causes of crime.
Case law: Anwar Ahmad v/s. State of Uttar Pradesh and Anr:
the offender had already undergone a six-month imprisonment term, before being officially
convicted by the Court. The Court held that since the convict had already been convicted and
also, the required point has also been imposed upon him, it was not necessary to sentence him
again under; retributive punishment, as it would case a very big loss upon his family, too.
5)Compensation theory of punishment:
This theory says that punishment should not only prevent the happening of any future crime
but should also compensate the victims of the crime. This theory basically provides relief to
the victims.
This theory has a sort of controversial approach
The arguments in support of the compensatory theory are that it can provide a sense of justice
and closure for victims and their families and that it can help in reducing the overall burden
on the criminal justice system.
While the criticism of the compensatory theory of punishment is that this may not be
effective at reducing crime and it may not be possible to always compensate the victims for
the harm they have suffered. And also, that the compensatory approach may not be fair to the
offenders, as it may impose financial and other burdens on them.
IMPORTANCE OF ADEQUATE PUNISHMENT IN THE SOCIETY:
Kalidas 1 mentioned that giving punishment according to the offense was one of the
qualities of the Raghuvanshi Kings. Punishment governs all people and protects them.
Punishment is Dharma if it is properly inflicted with due consideration. It must always be
according to the gravity of the crime and other such important factors. The award of a just
punishment is also an essential element to be kept in mind during proper administration of
criminal justice.
KINDS OF PUNISHMENTS:
Section 53 of the IPC 1860 describes five types of punishments:
1)Death penalty:
It is a capital punishment in which the criminal is hanged until death. This is awarded for
those offences which fall under the sections 121, 132, etc.
This type of punishment is unconstitutional but the Supreme Court recognised this as valid.
According to The Hindu, a total of 165 death penalties were handed out by trial courts in the
year 2022, which is the highest since 2000.
Case law: Jagmohan Singh Vs. Uttar Pradesh (1973): here, the appellant was condemned to
death under the section 302 of IPC. An argument was made that death sentence was
unconstitutional and that it violated articles 14, 19 and 21 of the Indian Constitution.
It was finally said that the courts have the power to impose death penalty after considering
the weightage of the aggravating factors. Also, the Code of Criminal Procedure lays down
that imposing death sentence in accordance with the law, cannot be considered as
unconstitutional.
2)Imprisonment for life:
This type of legal penalty is authorised by governments all over the world as an alternative to
death sentence. Some people still think that life imprisonment means imprisonment for 14 or
20 years but it actually means imprisonment till the person dies.
Case law: Bhagirath and Ors v. Delhi Administration (1985): the Supreme Court in this,
defined life imprisonment as confinement for the balance of the convict’s natural life. In such
a condition of imprisonment for life, a person must at least spend 14 years in the prison.
Life imprisonment has four purposes-
a. punishment – this deprives an offender of his freedom, separates him from the society
and sometimes provide with work to stop crime. This is very important for the offenders.
a. Deterrence- this is another purpose to punish criminals so that they don’t become
repeat offenders.
a. Protection- punishing the criminals with life imprisonment for the commitment of
heinous offences in order to protect the public from harm.
a. Rehabilitation- this means that the prisoner accepts that he did wrong by committing
the crime and takes necessary steps to change himself.
3)Repealed by Act 17 Of 1949:
4)Imprisonments:
a. Rigorous (with hard labour)- hard labour may include activities such as digging earth,
cutting wood etc.
Section 60 of IPC says that it shall be competent to the court to decide which
sentences such offenders to direct, whether such sentence shall be wholly rigorous,
wholly simple or that any part of it shall be rigorous and rest as simple.
b. Simple- this is imposed in the case of small offences like wrongful restraint,
defamation, etc. in this, the convict is not forced to do any hard manual labour.
Example of some offences which are punishable with simple imprisonment are- is to
refuse taking oath (section 178), defamation (sec. 500), wrongful restraint, etc.
Solitary Confinement- this includes keeping the prisoner completely isolated from any
kind of contact with the outside world. The convict is kept in a separate cell to correct
his conduct. But this can only be given when the offence is punishable and allowed to
be punishable with rigorous imprisonment. However, it has certain limitations:
-it should not exceed three months of the substantive term of imprisonment
– can’t be avoided in cases where imprisonment is not a part of the substantive
sentence.
-cannot be given for whole term of the imprisonment.
– it also can’t be awarded when imprisonment is in lieu of fine.
Section 74 of the Indian Penal Code says that solitary confinement sentence should not be
awarded for more than fourteen days at a time and must be imposed at intervals.
5)Forfeiture of property:
This simply means taking away the property of the offender by the State. This is now
abolished with some exceptions.
Section 53 provides for forfeiture of property as a punishment for certain offences like
treason, waging war against the Government, and abetment of mutiny.
Section 33 provides for forfeiture of property of people convicted of certain offences, such as
terrorism, money laundering, and counterfeiting.
Section 452 empowers the court to order the forfeiture of property that is the subject of a
criminal case.
The forfeiture of property is a serious punishment and can have a moving impact on the
offender. It can lead him to financial hardship and loss of all his assets. It can also make it
difficult for him to find employment and housing as a consequence.
6)Fine:
this may be imposed as sole punishment or may be imposed in addition with imprisonment.
In default of this, imprisonment may be imposed.
Section 63 says that the court may impose a fine on a person convicted of an offence. The
amount of the fine is not specified in the section.
Section 64 says that if a person convicted of an offence is unable to pay the fine, the court
may order them to be imprisoned for a period which is not exceeding one-fourth of the
maximum term of imprisonment which could have been given for that particular offence.
Section 65 says that if a person is convicted of an offence and is imprisoned for not paying
the fine, the court may then order them to be released on bail if they pay a sum of money
equal to the fine.
CONCLUSION:
From what all we have studied; it is easy to conclude that punishments must be severe
enough to be deterrent but not be so excessive to be considered as brutal. They are always
decided keeping in certain factreformativeors in mind and keeping in the society and the
humanity’s best interest in mind.
REFERENCE:
Legalserviceindia.com
Blog.ipleaders.in
Indiankanoon.org
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Unacademy.com
Studysmarter.co.uk
Juriscorpus.com
Britannica.com
Lawcorner.in
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lawbhoomi.com
Blog.finology.in
Casemine.com
Indiankanoon.org
Indiacode.nic.in
The Hindu.
The Indian Penal Code
The code of criminal procedure.
