Penal Policy in India

║ChapterIII║
Punishment and SentencingPolicy

under the Penal Laws in India
Chapter III
Punishment and Sentencing Policy

under the Penal Laws in India
“It would seem imperative that each successive generation

should realize its duties to work out afresh its views on
the problem of crime and turn these views into the small
coin of legislation instead of retaining unchanged, as a
matter of course, the law is inherited from its
predecessors.” 1
3.1 INTRODUCTORY
It is a general observation that courts dedicate much time and

energy on trial of cases and question as to the determination of
punishment is disposed of in minutes, without much articulation. If
severe punishments were considered appropriate remedy for crime at
some stage, it not only made society brutal but also resulted in
antagonism and resentment getting fixed in the mind of the criminal,
so that after standing the punishment, instead of refraining from
infraction of law he attacked society with double the vigour. A vicious
circle starts with more brutality more heinous crimes, still more
severity in dealing with the offender. For breaking this vicious circle,
it is necessary to learn from past experience and review the law in its
light.
1 Manheim, Criminal Justice and Social Reconstruction, Oxford University

Press, New York, (1946), p. 4.
| Punishment and Sentencing Policy under the Penal Laws in India | 80 |

The Indian Penal Code, 1860 was framed in an age when it was
thought that terror alone could stop the offender from indulging in
crime. Deterrence had the place of prime for remedying the crime
problem and protecting society against it. Since then, thinking has
undergone revolutionary change. The offender is no longer
considered an enemy of society who must be physically crushed; it is
felt that he is victim of his bringing up and environment. He is not a
free agent who has consciously and voluntarily made a choice for
committing crime; he is circumstanced in such a situation that he is
moved in his thinking by the pressure of circumstances. His decision
is delimited by complexity of many things engulfing him. This has
shifted the emphasis on determination of punishment from offence to
offender and reformative treatment is considered rather than
instilling fear in the offender. 2 Punishment on this understanding is
necessary, either as a condition for the existence of a social order
at all or as a condition for the kind of social orders that makes
possible just relationships amongst its members. On either
version of this appeal to necessity, the practice of punishing
people for breaking the law is said to be necessary. 3
3.2INTERPRETATION OF A PENAL STATUTE
The penal law performs two interlocking functions. By

threatening unpleasant consequences, it seeks to discourage
criminal behaviour. Through censure expressed by sanctions, the
law registers disapprobation of the behaviour. Citizens are thus
2 Kirpal Singh, Quantum of Punishment in Criminal Law in India, Publication

Bureau Panjab University, Chandigarh, (1970), pp. v-xi.
3 David Boonin, The Problem of Punishment, Cambridge University Press,
Cambridge, (2008), p. 13.

provided with moral and not just prudential reasons for
desistence. 4 In Pratap Singh v. State of Jharkhand 5 court opined:
“Interpretation of a statute depends upon the text and context
thereof and having regard and object with which the same was
made”.
The principle is that a penal statute is to be interpreted strictly.

While interpreting a provision in a penal statute if there appears
to be a reasonable doubt or ambiguity, it shall be resolved in
favour of the person who would be liable to the penalty. If a penal
provision can reasonably be so interpreted as to avoid the
punishment, it must be so interpreted. If there can be two
reasonable constructions of a penal provision, the more lenient
one to the accused should be given effect to. Punishment can be
meted out to a person only if the plain language of penal
provision is able to bring that person under its purview. No
extension of meaning of the words is permissible. A penalty
cannot be imposed on the basis that the object of statute so
desired. 6
Maxwell says that strict construction of penal statutes seems to

manifest itself in the following four ways 7:
4 Andrew Von Hirsch, Censure and Proportionality, A Reader on Punishment,

Oxford University Press, New York, (1994), p. 122.
5 (2005) 3 SCC 551.
6 Tolaramv. State of Bombay, AIR 1954 SC 496 at p. 498. Chief Justice
Mahajan observed as under: “if two possible and reasonable constrictions
can be put upon a penal provision, the court must lean towards that
construction which exempts the subject from penalty rather than the one
which imposes penalty. It is not competent to the court to stretch the
meaning of an expression used by the legislature in order to carry out the
intention of the legislature”.
7 T. Bhattacharya, The Indian Penal Code, Central Law Agency, Allahabad,
(2013), p. xxxiv.

a) In the requirement of express language for the creation of an
offence 8;
b) In interpreting strictly words setting out the elements of an

offence;
c) In requiring the fulfilment to the letter of statutory conditions

precedent to the infliction of punishment; and
d) In insisting on the strict observance of technical provisions

concerning criminal procedure and jurisdiction.
Judges in criminal cases cannot have the authority to interpret laws,

and the reason again is that they are not legislators. Such judges
have not received the laws from our ancestors as a family tradition or
legacy that leaves to posterity only the burden of obeying them, but
they receive them, rather, from the living society, or from the
sovereign representing it, who is the legitimate depository of what
actually results from common will of all. Each man has his own view
point and at each different time, a different one. The spirit of the law
would be the product of a judge’s good or bad logic, it would depend
on the violence of his passions, on the weakness of the accused, on
the judge’s connections with him, and on all those minute factors
that alter the appearances of an object in the fluctuating mind of
man. The disorder that arises from rigorous observance of the letter
8 Dyke v. Elliott (1872-1874) AC 184, Lord Justice James observes, “no doubt
all penal statutes are to be constrained strictly that is to say the court must
see that the thing charged as an offence is within the plain meaning of the
words used, and must not strain the words on any notion that there has
been a slip, that there has been casus dmnissus, that the thing is brought
within the spirit of the enactment but where the thing is brought within the
words and within the spirit, there a penal enactment is to be construed, the
any other instrument according to the fair common sense meaning of the
language used, and the court is not to find or make any doubt or ambiguity
in the language of the penal statute, where such doubt of ambiguity would
clearly not be found or made in the same language in any other
instrument”.

of a penal law is hardly comparable to the disorders that arise from
the interpretations. 9
3.3 THE ORIGIN OF PUNISHMENT AND TYPES OF SANCTIONS
Punishment is a basic fact of human life. We impose punishment in

formal and informal settings for a variety of purposes of social
control, social change and maintenance. No man ever freely
sacrificed a portion of his personal liberty merely for the sake of the
common good. Laws are the conditions under which independent
and isolated men united to form a society. Weary of living in a
continual state of war, and of not enjoying a liberty rendered useless
by the uncertainty of preserving it, they sacrificed a part so that they
might enjoy the rest of it in peace and safety. The sum of all these
portions of liberty sacrificed by each for his own good constitutes the
sovereignty of a nation and their legitimate depository and
administrator is the sovereign. But merely to have established this
deposit was not enough; it had to be defended against private
usurpations by individuals each of whom always tries not only to
withdraw his own share but also to usurp for himself that of others.
Some tangible motives had to be introduced, these motives were the
punishments established against infractions of the laws. It was,
thus, necessity that forced men to give up part of their personal
liberty, and it is certain, therefore, that each is willing to place in
public fund only the least possible portion, no more than suffices to
induce others to defend it. 10
9 Eugene McLaughlin, John Muncie and Gordon Hughes, Criminological

Perspectives Essential Readings, Sage Publications, London, (2014), p. 17.
10 Social Contract Theory: (a) for Hobbes, the necessity of an absolute
authority in the form of sovereign followed from the utter brutality of the
State of Nature. The State of Nature was completely intolerable and so
rational men would be willing to submit themselves even to absolute
authority in order to escape it. (b) John Locke states that having created a
political society and government through their consent, men again three

All societies and social groups develop ways to control behaviour that
violates norms. Social contract is also achieved directly through
external sources that compel individuals to conform or through the
threat of societal reaction. Regardless of whether conformity results
from personal desires or external compulsion, conformity is
ultimately achieved through the use and threats of sanctions.
Positive sanctions are rewards meant to encourage conformity to
norms, whereas negative sanctions are punishments to discourage
them. 11
TABLE: TYPES OF SANCTIONS (EXAMPLES)
Positive (Rewards) Negative (Punishments)

FORMAL Promotions Fines/Forfeitures
Bonus Probation/Revocation
Awards/Medals Incarceration
Honorary Titles Torture/Death Penalty
INFORMAL Praise Ridicule
Respect Exclusion from
Trust group/society (Ostracism)
3.3.1 Definition of Punishment
The year 2000 was the target year of United Nation International Plan
of Action for Crime Prevention and Treatment of Offenders which
envisioned a more far more effective and humane system of crime
control but one in which ultimately crime will be largely controlled by
socio-economic policies, rather than the criminal justice system
acting alone 12.
things which they lacked in the State of Nature: laws, judges to adjudicate
and the executive power necessary to enforce these laws. Each man
therefore gives over the power to protect himself and punish transgressors
of the law of nature to the government that he has created through pact.
Retrieved from <www.iep.utm.edu/soc-cont/#SH2> last visited on May 24,
2015 at 20:50 IST.
11 Marshall B. Clinard and Robert F. Meier, Sociology of Deviant Behavior,
Holt, Rinchart and Winston, New York, (1985), p. 14.
12 Brian A. Grosman, New Directions in Sentencing, Butterworth, Toronto,
(1980), p. 16.

Punishment involves a stigmatizing condemnation of the punished. It
does so, because the person has been judged to be guilty inter alia of
some moral wrong doing, that of violating basic conditions of our
human engagement... punishment is for a breach of standards that
are believed to be of fundamental significance in our human course.
Bentham simply declared that ‘all punishment is mischief, all
punishment in itself is evil’. Ten states that Punishment ‘involves the
infliction of some unpleasantness on the offender or it deprives the
offender of something valued. Hobbes provides that punishment is
an: “evil inflicted by public authority on him that hath done or
omitted that which is judged by the same authority to be a
transgression of the law; to the end that the will of men may thereby
better be disposed to obedience. The aim of punishment is not
revenge, but terror”. Herbert Morris defines punishment as ‘the
imposition upon a person who is believed to be at fault of something
commonly believed to be a deprivation where that deprivation is
justified by the person’s guilty behaviour’ and Duff defines
punishment as the infliction of suffering on a member of the
community who has broken its laws’ 13.
Hart defines it as ‘an agreement resulting from a restorative justice

conference that imposes obligations on the offenders lies close to the
paradigm of punishment:
(i) It may involve consequences normally considered unpleasant;
(ii) It is for an offence against legal rules;
(iii) It is of an actual or supposed offender for his offence
(iv) It may be intentionally administered by human beings other

than offender; and
13MirkoBagaric, Punishment and Sentencing: A Rational Approach, Cavendish

Publishing Ltd., London, (2001), p. 34.

(v) The authority is constituted by the relevant legal system.
Hart’s definition purports to take an objective view, dependent not on

the purpose of what is done or the offenders’ perception of it, but
rather on whether it fulfils certain criteria. 14 Punishment may indeed
be an effective agent of change, but only if it scores highly on the
following recognised features:
a) Certainty: Punishment should be the inevitable and

unavoidable consequence of the offending behaviour.
b) Promptness: Punishment should follow the offending

behaviour rapidly, so as to impress the connection upon the
individual. The more promptly and the more closely
punishment follows upon the commission of a crime, the more
just and useful it will be. As the criminal is thereby spared the
useless and cruel torments of uncertainty, which increase with
the vigour of imagination and with the sense of personal
weakness; more just, because privation of liberty, being itself a
punishment, should not precede the sentence except when
necessity requires. Imprisonment of a citizen, then, is simply
custody of his person until he be judged guilty; and this
custody, being essentially penal should be of the least possible
duration and of the least possible severity. The time limit
should be determined both by the anticipated length of the
trial and by seniority among those who are entitled to be tried
first. The strictness of confinement should be no more than is
necessary to prevent him from taking flight or from concealing
the proofs of his crimes. The trial itself should be completed in
the briefest possible time. Promptness of punishments is more
useful because when the length of time that passes between
the punishment and misdeed is less, so much the stronger and
more lasting in the human mind is the association of these two
idea, crime and punishment; they then come insensibly to be
considered, one of the cause, the other as the necessary
inevitable effect. 15
c) Severity: if punishment is not applied with great intensity, its

effects are uncertain.
14Andrew Ashworth, Sentencing and Criminal Justice, Cambridge University Press,

Cambridge, (2010), p. 95.
15 Supra Note 9, p. 19.

d) Comprehensibility: The reason and justification for the
punishment should be understood by the individual on whom
it is inflicted.
The great criminologist Beccaria is still generally thought to have

been absolutely right in his maxim that, ‘certainty, rather than
severity, is the test of an effective antidote for crime’. The delays that
have become endemic in our criminal justice mean that the
commission of an offence and any eventual punishment for it are
widely separated in time. 16
3.3.2Limitations of Punishment
A criminal act (e.g., theft, murder, rape) is directed towards an

immediate satisfaction- immediacy is of its essence-whereas
punishment is remote. As compared with crime's effect,
punishment is a slow and complicated process. First, the crime
must be discovered, than we have to trace the criminal, catch
him, and finally convict him. Every one of these steps is beset by
obstacles. Here lays, in practice, the chief problem of
punishment. How can uncertain punishment compete
successfully in the criminal's mind with certain satisfaction? The
law's only answer hitherto has been to increase the severity of its
punishment instead of perfecting the machinery of detection and
proof; and little or no consideration has been given to the fact
that, the youth greedy for adventure and the reckless gambler will
always take a rosy view of the chance of 'getting away with it,' and
therefore fear punishment just about as much as the atheist fears
Hell. All these objections concern the psychological limitation of
punishment. There are, however, other limitations of sociological
character. Punishment carries with it social degradation, which
16 Yvonne Jewkes, Gayle Letherby, Criminology: A Reader, Sage Publications,

New Delhi, (2003), p. 325.

has motivating force in a curtailment of existence. This assumes,
of course that the culprit has hitherto enjoyed a tolerable position
in life-more tolerable, that is, than imprisonment. But
unfortunately the assumption is not always justified. There is
such a thing as acute economic distress. We have seen how mass
unemployment can plunge millions into hunger and privation,
through no fault of their own. In such a case the healthy self-
preservation instinct can but choose the lesser evil-that is,
punishment plus food, clothing and warmth where life is harder
than the punishment of man, law and order stands at the limit of
its power. 17
We may also remind our self that the word punishment comes
from Greek word poine which literally means the exchange of
money of harm done. Guilt as well although etymologically fuzzy
in its origin seems to be derive from Anglo Saxon word to pay. It
is well established that the Mosaic Dictum of any eye for an eye is
not an expression of retribution but a tort concept of no more nor
less than the value of the harm done. The classical model was
clearly articulated by Italian criminologist CeasreBeccaria in 1764
in his book on Crimes and Punishment. According to him crime
was viewed as a product of free will and to be both just and
effective. Punishment must be proportionate to the crime. The
nature as well as the extent of punishment should correspond to
the offence. Theft should be punished with fines acts of violence
with corporal punishment and murders with death. 18
17 Hans Von Henting, Punishment: Its Origin, Purpose and Psychology, William
Hodge and Company Limited, London, (1937), pp. 1-16.
18 Supra Note 12, pp. 26.

3.4 PENOLOGICAL PERSPECTIVES
In the past several reasons have often been cited for the purpose of
justifying the penal sanction. One of these reasons is retribution.
Another reason, historically associated with utilitarianism, is that
punishment serves to deter others from offending i.e. deterrence. A
third reason is partly that punishment or a practice of treatment,
secures the fewer offences will be committed in the future, but not
through deterrence. This could be described as reformative aspect,
recommending the moral regeneration of individuals as an end in
itself and also as a means to the prevention of crime. Thus,
Punishment serves numerous social-control functions, but it is
usually justified on the principles of retribution, incapacitation,
deterrence, rehabilitation, and/or restoration. The courts have also
held that the ultimate purpose of sentencing is community
protection. InChannon, J. Brennan stated: “the necessary and
ultimate justification for criminal sanctions is the protection of
society from the conduct which the law proscribes...Criminal
Sanctions are purposive, and they are not inflicted judicially except
for the purpose of protecting society; nor to an extent beyond what is
necessary to achieve that purpose” 19.
The specific principles that underlie these dominant philosophies for

punishment are summarized hereafter. 20
3.4.1 Retribution
One of the oldest and most basic justifications for punishment

involves the principles of revenge and retribution. This equation of
punishment with the gravity of the offense is embedded in the
19 Channon (1978) 20 ALR 1, p. 15.

20 J.P.S. Sirohi, Criminology and Criminal Administration, Allahabad Law
Agency, Faridabad, (2004), p. 108.

Judeo–Christian tradition in the Mosaic laws of the Old Testament
that emphasize the idea of “an eye for an eye.” Neither constrained by
questions of offender culpability nor directed at preventing future
wrongdoing, have offenders under a retributive philosophy simply got
what they deserve. Punishment is justified on its own grounds, a
general principle that has remained popular throughout Western
history in both law and widespread public beliefs about how justice
should be dispensed in democratic societies.
The classical retributive principle of “let the punishment fit the

crime” was the primary basis for criminal sentencing practices in
much of Western Europe in the nineteenth century. This principle of
punishment was subsequently modified in neoclassical thought to
recognize that some offenders who commit similar offenses may be
less blameworthy or culpable due to factors outside of their control
(e.g., diminished capacity, mental disease or defect, immaturity).
Under this revised retributive theory of just deserts, punishment
should fit primarily the moral gravity of the crime and, to a lesser
extent, the characteristics of the offender. A current example of
retributive principles being used as the basis for punishment
involves mandatory sentencing policies and sentencing guidelines
systems in the United States. Mandatory sentences dictate uniform
sanctions for persons who commit particular types of offenses (e.g.,
enhanced penalties for crimes committed with firearms), whereas
determinate sentencing guidelines prescribe specific punishments
based on the severity of the criminal offense and the extensiveness of
the offender’s prior criminal record.
Consistent with a retributive philosophy, punishment under these

sentencing systems focuses primarily on the seriousness and
characteristics of the criminal act rather than the offender.

Although retribution is often linked to criminal sanctions, it is
equally applicable to other types of legal sanctions and informal
sanctions. For example, civil litigation that is based on the principle
of strict liability is similar to retributive philosophy in that
compensatory and punitive damages focus on the gravity of the
prohibited act rather than characteristics of the offender. Lethal and
nonlethal sanctions that derive from blood feuds between rival
families, range wars in agrarian communities, terrorist attacks on
civilian and government targets, and acts of “street justice” by
vigilante groups and other extrajudicial bodies are often fuelled by
the twin motives of revenge and retribution. Various economic
punishments and sanctions that restrict business practices (e.g.,
asset forfeitures, injunctions, product boycotts, worker strikes and
slowdowns, revocation of licenses, decertification of programs, cease-
and-desist orders, denial of benefits) may be justified on various
utilitarian grounds like protecting society or deterring wrongdoing,
but they may ultimately reflect the widespread belief in letting the
punishment fit the crime.
Retribution as a penal philosophy has been criticized on several

fronts when it is actually applied in practice. First, strict retributive
sanctions based solely on the nature of the offense (e.g., mandatory
sentences for drug trafficking, the use of firearms in the commission
of crimes) are often criticized as being overly rigid, especially in
societies that recognize degrees of individual culpability and
blameworthiness. Second, the principle of lextalionis(i.e., the “eye for
an eye” dictum that punishment should correspond in degree and
kind to the offense) has limited applicability. For example, how do
you sanction in kind, acts of drunkenness, drug abuse, adultery,
prostitution, and/or traffic violations like speeding? Third, the
assumption of proportionality of punishments (i.e., that punishment

should be commensurate or proportional to the moral gravity of the
offense) is untenable in most pluralistic societies because there is
often widespread public disagreement on the severity of particular
offenses.
Under these conditions, a retributive sentencing system that

espouses proportional sanctions would be based on the erroneous
assumption that there is public consensus in the rankings of the
moral gravity of particular types of crime. Even with these criticisms,
however, the retributive principle of lextalionis and proportionality of
sanctions remains a dominant justification of punishment in most
Western cultures. Retribution under a Judeo–Christian religious
tradition offers a divine justification for strict sanctions and it clearly
fits popular notions of justice (e.g., “he got what was coming to him”).
The dictum of “let the punishment fit the crime” also has some
appeal as a principled, proportional, and commensurate form of
societal revenge for various types of misconduct. 21
One of the most convincing statements of the retribution theory was

given by Immanuel Kant in the eighteenth century as follows 22:
….Punishment can never be administered merely as means for

promoting another good, either with regard to the criminal
himself to civil society, but must in all cases be imposed only
because the individual on whom it is inflicted has committed a
crime. For one man ought never to be dealt with merely as a
means of subservient to the purpose of another, not be mixed
up with the subjects of Real Rights (i.e. goods or property).
Against such treatment his inborn personality has a right to
protect him , even although he may be condemned to loose his
21 Peter Rossi, Emily Waite, Christine Bose, and Richard Berk, “The
Seriousness of Crime: Normative Structure and Individual Differences.”
AmericanSociological Review 1974, pp. 224–237; Terance D. Miethe, “Types
of Consensus in Public Evaluations of Crime: An Illustration of Strategies
for Measuring ‘Consensus.’” Journalof Criminal Law and Criminology 1984,
pp. 459–473.

civil personality. He must first be found guilty and punishable,
before there can be any thought of drawing from his
punishment any benefit for himself or his fellow citizens.
3.4.2 Incapacitation
A primary utilitarian purpose for punishment involves various

actions designed to decrease the physical capacity of a person to
commit criminal or deviant acts. This principle of incapacitation
focuses on the elimination of individuals’ opportunity for crime and
deviance through different types of physical restraints on their
actions. The conditions of confinement may be so deplorable that
they reduce the offender’s subsequent desire to engage in
misconduct, but such a deterrent effect is not a necessary
component of incapacitation in its pure and earliest form. A plethora
of devices, techniques, and structures have been used throughout
history as means for incapacitation. The early tribal practices of
banishment to the wilderness, the English system of “transportation”
of convicts to other colonies in the seventeenth and eighteenth
centuries, the exile of citizens in ancient Greek society, and political
exile in more modern times are examples of incapacitated sanctions
because they involve the physical removal of persons from their
former communities, thereby restricting their physical opportunity
for misconduct in the original setting. The stocks and pillory in
English history and Colonial America were devices used for both
public ridicule and incapacitation.
The function of incapacitation may also be served by other types of

legal and extra legal restrictions on one’s behaviour. Other legal
forms of incapacitation involving civil or administrative decrees
include court-ordered injunctions and restraint-of-trade agreements,
restraining orders in domestic violence cases, revocations of licenses,

foreclosures, and the passage of certification requirements to perform
particular tasks (e.g., college degree requirements for teaching,
passing medical board and bar exams for practicing medicine or law).
Many of these actions are economic sanctions in that they carry
financial consequences for those involved, but these civil and
administrative rules can also be seen as incapacitated in that they
place physical restrictions on one’s possible actions. The most widely
known type of incapacitation involves some form of incarceration, or
what others have termed “penal bondage.” Aside from their
incapacitated effect on restricting immediate criminal opportunities,
penal bondage of criminals, vagrants, debtors, social misfits, and
other disadvantaged groups across time periods and geographical
contexts has often included a component of forced labour (e.g.,
public works projects, forced servitude in military campaigns) as a
condition of confinement 23.
Physical structures for incapacitation may have different purposes or

functions besides the physical restraint of the body. These places of
confinement are described across time and space in context-specific
terms like towers, workhouses, jails, prisons, correctional or
treatment facilities, cottages, and mental institutions. The specific
language used for descriptive purposes also signifies their functions
beyond physical incapacitation. During the last half century, several
new forms of incapacitation have emerged. For example, shock
incarceration programs involve short-term incarceration of juvenile
offenders to show them the pains of imprisonment and scare them
into a future life of conformity. Another variant of incapacitation,
intensive-supervision probation (ISP), leaves adjudicated criminals in
23 Pieter Spierenburg, “The Body and the State: Early Modern Europe.”, in
Norval Morris and David J. Rothman, The Oxford History of the Prison,
Oxford University Press, New York, (1935), pp. 49–77.

their community but under the watchful eye of probation officers or
other legal authorities.
Although research suggests that a small pool of people commits the

predominant share of violent and property crime, efforts to
successfully predict these high-risk offenders suffer from numerous
ethical and practical problems, including high rates of both “false
positives” (i.e., falsely labelling someone as a high-risk offender)and
“false negatives” (i.e., releasing high-risk offenders because they were
erroneously characterized as low-risk). 24
Contrary to early historical patterns of incapacitation that

emphasized the reduction of the physical opportunity for crime and
deviance, modern versions of this philosophy are more “forward-
looking” in terms of focusing on the utility of punishments for
changing offenders’ criminal motivations once they are no longer
physically restrained from committing deviance. In this way,
incapacitation is united with other utilitarian philosophies for
punishment. Different types of incapacitated sanctions may serve as
the initial framework for establishing successful programs of
deterrence and rehabilitation.
3.4.3 Deterrence
The doctrine of deterrence asks a fundamental question about the

relationship between sanctions and human behaviour: Are legal and
extra legal sanctions effective in reducing deviance and achieving
conformity? Punishment is said to have a deterrent effect when the
fear or actual imposition of punishment leads to conformity.
Specifically, punishments have the greatest potential for deterring
24 Joan Petersilia, Peter W. Greenwood, and Marvin Lavin, Criminal Careers of

Habitual Felons, Santa Monica, Rand Corp., California, (1978), p. 5.

misconduct when they are severe, certain, and swift in their
application. Punishments are also widely assumed to be most
effective for instrumental conduct and for potential offenders who
have low commitment to deviance as a livelihood (e.g., the person is
not a professional criminal) 25 The deterrent effect of a particular type
of punishment depends upon several factors. These are 26:
(1) the social structure and value system under consideration
(2) the particular population in question
(3) the type of law being upheld
(4) the form and magnitude of the prescribed penalty
(5) the certainty of apprehension and punishment, and
(6) the individual’s knowledge of the law as well as the prescribed

punishment, and his definition of the situation relative to these
factors
Deterrence is based on a rational conception of human behaviour in

which individuals freely choose between alternative courses of action
to maximize pleasure and minimize pain. From this classical
perspective on crime and punishment, criminal solutions to
problems become an unattractive option when the costs of this
conduct exceed its expected benefit. Swift, certain, and severe
sanctions are costs that are assumed to impede the likelihood of
engaging in deviant behaviour. From a deterrence standpoint, any
type of punishment (e.g., monetary, informal, incapacitative,
25 William J. Chambliss, “Types of Deviance and the Effectiveness of Legal

Sanctions.” Wisconsin Law Review Summer, 1967, pp. 703-719. For a
review of the more recent literature on deterrence, Also see Daniel S. Nagin,
“Criminal Deterrence Research at the Outset of the Twenty-First Century.”,
1998. In Michael Tonry (ed.), Crime and Justice: A Review of Research, pp.
1–42; Raymond Paternoster, “The Deterrent Effect of the Perceived
Certainty and Severity of Punishment: A Review of the Evidence and
Issues.” Justice Quarterly, 1987, pp. 173–217.
26 John C. Ball, “The Deterrence, Concept in Criminology and Law”, Journal of
Criminal Law, Criminology and Police Science, 1955, pp. 347-352.

corporal) has a potential deterrent effect as long as it is perceived as
a severe, certain, and swift sanction.
The research literature on the effectiveness of criminal punishments

outlines the four major types of deterrence, which include the
following:
• Specific deterrence involves the effectiveness of punishment on

that particular individual’s future behaviour. Recidivism rates
(e.g., rates of repeat offending among prior offenders) are often
used to measure the specific deterrent value of punishments.
• General deterrence asks whether the punishment of particular

offenders deters other people from committing deviance. A
comparison of crime rates over time or across jurisdictions is
typically used to ascertain the general deterrent value of
punishment.
• Marginal deterrence focuses on the relative effectiveness of

different types of punishments as either general or specific
deterrents. For example, if recidivism rates for drunk drivers
are higher for those who receive monetary fines than those who
received jail time, jail time would be rated higher in its
marginal deterrent value as a specific deterrent for drunk
driving. Similarly, debates about capital punishment often
focus on the marginal deterrent value of life imprisonment
compared to the death penalty as a general deterrent for
murder.
• Partial deterrence refers to situations in which the threat of

sanction has some deterrent value even when the sanction
threats do not lead to law abiding behaviour. For example, if a
thief picked or “lifted” someone’s wallet rather than robbing
them at gunpoint (because the thief was fearful of the more
serious penalty for committing an armed robbery), the thief
would be treated as a “successful” case of partial deterrence.
When the philosophy of deterrence is used in the context of penal

reform, it is often as a justification for increasing the severity of
sanctions, particularly in Western developed countries. Legislative
responses to terrorist attacks, drug trafficking, child abductions,

etc., have been directed primarily at increasing the severity and/or
duration of punishments. Although these greater punitive measures
may serve to pacify widespread public demands to “get tough” on
crime, the specific and general deterrent effect of such efforts is
probably limited without attention to the other necessary conditions
for effective deterrence (i.e., high certainty and high celerity of
punishments) 27.
Empirical efforts to assess the effectiveness of deterrence are limited

by several basic factors. First, persons may abide by laws or desist in
deviant behaviour for a variety of reasons other than the looming
threat or fear of legal sanctions. Some of these non deterrence
constraints on behaviour include one’s moral/ethical principles,
religious beliefs, physical inability to commit the deviant act, and
lack of opportunity. Second, neither swift nor certain punishment
exists in most legal systems in the contemporary world. The majority
of criminal offenses are typically unknown to the legal authorities
and, even among the known offenses, only a small proportion result
in an arrest and conviction. Third, the severity of punishment
actually received by offenders is often far less than mandated by law,
due to the operation of such factors as plea bargaining, charge
reductions, etc.
3.4.4 Rehabilitation
Although it may seem contradictory or at least somewhat odd to

assert that we punish for the treatment and reform of offenders, this
basic principle underlies the rehabilitation purpose of punishment.
27 Jack P. Gibbs, Crime, Punishment, and Deterrence, Elsevier, New York,

(1975); Raymond Paternoster, “The Deterrent Effect of the Perceived
Certainty and Severity of Punishment: A Review of the Evidence and
Issues.” Justice Quarterly, 1987, pp. 173–217; Daniel S. Nagin, “Criminal
Deterrence Research at the Outset of the Twenty-First Century.” 1998.

The ultimate goal of rehabilitation is to restore a convicted offender
to a constructive place in society through some combination of
treatment, education, and training.
The salience of rehabilitation as a punishment philosophy is

indicated by the contemporary jargon of “correctional facilities,”
“reformatories,” and “therapeutic community” now used to describe
jails, prisons, and other institutions of incapacitation. The link
between places of incapacitation and reform is established
throughout much of written history. The earliest forms of penal
confinement in dungeons, towers, caves, and other dark and dreary
places were largely incapacitative in their primary function, but some
degree of moral and spiritual enlightenment was expected of those
condemned to long periods of solitary confinement 28.
This idea of restraint to reform is evident within the context of

religious penance in Judeo–Christian practices in Western Europe
and the British colonies in North America and elsewhere. It is also
manifested in U.S. history in the early development of reformatories
and penitentiaries. These large-scale incarceration structures
punished misguided youth and criminals by isolating them so they
could reflect on their deviant actions, repent, and subsequently
reform their behaviour. Confinement and reflection for spiritual
reform are also of central importance in the religious principles
found in Hinduism and Buddhism.
In contrast to retribution that emphasizes uniform punishments

based on the gravity of the misconduct, rehabilitation focuses on the
particular characteristics of individual offenders that require
treatment and intervention. This individualized treatment approach
28 Todd R. Clear and George F. Cole, American Corrections, West/Wadsworth,

Belmont, (2000), p. 513.
is logically consistent with indeterminate sentencing structures that
give judges enormous discretion to tailor punishments for the
greatest good to the individual offender and provide parole boards
with equally high discretion to release or retain offenders for future
treatment. Through the application of current theories of human
behaviour and the latest therapeutic techniques for behavioural
modification, rehabilitation experienced growing acceptance in many
countries throughout much of the twentieth century 29.
National fiscal restraints, declines in correctional budgets for

program development, high public outcry for more severe and longer
prison sentences, and a growing crime-control political ideology that
focuses on suppression of criminal behaviour rather than its early
prevention are current conditions in Western societies that are
largely antithetical to the ideas of treatment and rehabilitation. 30
3.4.5 Restoration
One of the most recent goals of punishment derives from the

principles of restoration. As an alternative to other punishment
philosophies (e.g., retribution, incapacitation, rehabilitation),
restorative justice fundamentally challenges our way of thinking
about crime and justice. The global victims’ rights movement is a
relatively new phenomenon, but, the general roots of restorative
29 Charles B. Fields and Richter H. Moore, Jr., Comparative Criminal Justice —

Traditional and Non Traditional Systems of Law and Control, Waveland,
Prospect Heights, IL, (1996), pp. 453-478.
30 Greg Newbold and Chris Eskridge, History and Development of Modern
Correctional Practices in New Zealand, (1996). In Charles B. Fields and
Richter H. Moore, Jr. Comparative CriminalJustice — Traditional and Non
traditional Systems of Law and Control. Prospect Heights, Waveland, IL,
(1996), p. 472.; R. Izzo and R. R. Ross, “Meta-Analysis of Rehabilitation
Programs for Juveniles: A Brief Report.” Criminal Justice and Behaviour,
(1990), pp. 134–142.
justice can be traced back to the early legal systems of Western
Europe, ancient Hebrew justice, and precolonial African societies. 31
Restorative justice literally involves the process of returning to their

previous condition all parties involved in or affected by the original
misconduct, including victims, offenders, the community, and even
possibly the government. Under this punishment philosophy, the
offender takes full responsibility for the wrongdoing and initiates
restitution to the victim. The victim and offender are brought
together to develop a mutually beneficial program that helps the
victim in the recovery process and provides the offender a means of
reducing their risks of re-offending. 32
The theory of reintegrative shaming developed by John Braithwaite is

based on the principles of restorative justice. Offenders take personal
responsibility for their actions and condemnation is focused on the
deviant act, rather than the offender, and its impact on the victim
and the community. Both the offender and the community need to be
reintegrated as a result of the harm caused by the criminal
behaviour. Community mediation groups, neighbourhood councils,
local support groups, and victim–offender conferences are the
primary means of achieving these restorative efforts. The principles
of restorative justice have been applied to the study of both criminal
and civil sanctions. For example, the institutionalized practice of
“written apology” and “letter of forgiveness” in the Japanese criminal
justice system is designed to express remorse and make restitution.
By accepting the apology, the victim forgives the offender. In all cases
of restorative justice, the goal is to restore both the individual parties
31 Evelyn Zellere and Joanna B. Cannon, “Restorative Justice, Reparation,

and the Southside Project.” In David R. Karp and Todd R. Clear, What is
Community Justice, Thousand Oaks, Sage, CA, (2000), pp. 89–107.
32 Frank Schmalleger and John Ortiz Smyka, Corrections in the 21st Century,
Glencoe McGraw Hill, New York, (2001), p. 486.
and their community’s sense of wholeness. 33 It stresses the harm
caused to victims of crime and requires offenders to engage in
financial restitution and community service to compensate the victim
and the community and to ‘make them whole once again’.
Kant argued that, even if no possible advantage can be found in

punishing a given criminal, the punishment must nonetheless be
imposed. To illustrate the categorical nature of this imperative, he
constructed his famous example: “Even if a civil society resolved to
dissolve itself with the consent of all its members- as might be
supposed in the case of a People inhabiting an island resolving to
separate and scatter themselves throughout the whole world- the last
murderer lying in the prison ought to be executed before the
resolution was carried out. This ought to be done in order that
everyone may realize the desert of his deeds and that guilt may not
remain upon the people; for otherwise they might all be regarded as
participators in the murder as a public violation of justice”. 34
Thus, it is clear that no theory of punishment can achieve the real

purpose of punishment solely. Caldwell observes in this regard:
“Punishment is an art which involves the balancing of retribution,
deterrence and reformation in terms not only of the court and the
offender but also of the circumstances in which it takes place and in
the balancing of these purposes of punishments, first one and then
the other, receives emphasis as the accompanying conditions
change”. 35
3.5 PHILOSOPHIES OF PUNISHMENT
33 Ibid.
34 Report of The Twentieth Century Fund Task Force on Criminal Sentencing,
Fair and Certain Punishment, McGraw-Hill Book Company, New York,
(1976), p. 72.
35 Caldwell, Criminology,Ronald Press Company, New York, (1956), p. 403.
One theory sees the institution of punishment as rectifying the
‘unfair advantage’ which law breakers obtain by offending. The other
focuses on punishment’s role as expressing censure or reprobation 36:
The Unfair Advantage: the unfair advantage theory has been

attributed to Kant. The view offers a retributive, retrospectively
oriented account of why offenders should be made to suffer. The
account focuses on the criminal law as a jointly beneficial enterprise.
The law requires each person to desist from certain kinds of
predatory conduct. By so desisting, the person benefits others; but
he also benefits from their reciprocal restraint. The person who
victimizes others while benefiting from the self restraint thus obtains
an unjust advantage. Punishment’s function is to impose an
offsetting disadvantage. The theory has various perplexities. It is
arguable that offender, by benefitting from others’ self restraint, has
a reciprocal obligation to restrain himself. If he disregards the
obligation and does offend- the unfair advantage he supposedly
thereby gains can somehow be eliminated or cancelled by punishing
him. This theory provides little or no assistance for determining the
quantum of punishment. Another problem is that the theory would
distort the way, the gravity of crimes is assessed. As Finnis puts the
point, the unfair advantage that the offender enjoys is “the advantage
of indulging a wrongful self preference of permitting him an excessive
freedom in choosing. So that he has enjoyed more freedom than
everyone else. 37
Censure Based: Reprobative accounts of the criminal sanction are

those that focus on that institution’s condemnatory features, that is,
its role as conveying censure or blame. The penal sanction clearly
36 Supra Note 4, pp. 119-122.

37 Supra Note 3, pp. 132-133.
does convey blame. Punishing someone consists of visiting a
deprivation on him, because he supposedly has committed a wrong,
in a manner that expresses disapprobation of the person for his
conduct. Treating the offender as the wrongdoer is central to the idea
of punishment. Tax and fine does not rest in kind of material
deprivation. It consist rather in the fact that the fine conveys
disapproval or censure whereas tax does not. A censure based
account is also easier to link to proportionality: if punishment
conveys blame, it would seem logical that the quantum of
punishment should bear a reasonable relation to the degree of
blameworthiness of the criminal conduct. Also, the censure cannot
be expressed in purely verbal or symbolic terms; that hard treatment
is needed to show that disapprobation is meant seriously. Thus, the
criminal law seems to have preventive features in its very design.
When the State criminalises conduct, it issues a legal threat: such
conduct is proscribed, and violation will result in the imposition of
specified sanctions. The threat appears to be explicitly aimed at
discouraging the proscribed conduct. 38
Utilitarian: Utilitarianism is the theory that the morally right action is

that which produces the greatest amount of utility. It provides that
the utility which should be maximised is happiness or pleasure,
which is the sole intrinsic good, while pain is the sole inherent evil.
The utilitarianism starting point regarding punishment is to consider
the most direct and immediate effect of punishment and from this
perspective it is a bad thing because it causes unhappiness to the
offender. It is only justified because of the wider contingent benefits
it produces, which it is felt outweigh the bad consequences. The good
consequences of punishment which are traditionally thought to
38 N. Jareborg, Essays in Criminal Law, Uppsala, Iustus, (1988), pp. 76-78.
outbalance the suffering inflicted on the offender is apprehended,
rehabilitating him or her and, where necessary, incapacitating the
offender. If there are several forms of punishment which produce the
same good consequences, we must choose the one which imposes
the least unpleasantness to the offender, thus, unlike retributivism,
the utilitarian theory of punishment is forward looking: the
commission of a criminal act does not justify punishment; rather,
punishment is only warranted if some good can come from it. 39 Even
if utilitarian theory renders it permissible to punish people for
breaking law, it cannot render permissible to punish an institutively
appropriate amount of punishment.
3.6 JUSTIFYING STATE PUNISHMENT
It must first be established on what basis punishment is justified

and why are we punishing. For example, the lextalionis, an eye for an
eye theory of punishment, requires us to select a sanction which as
far as possible equates with the nature of the crime, whereas a
communicative theory of Punishment favours sanctions which will
best inform offenders of the wrongfulness of their crimes. 40 There is a
distinction between seeing punishment as the way in which a society
expresses blame, and seeing it as a way to secure particular
objectives of the reduction of crime by changing offenders behaviour
or circumscribing their freedom of action. There are various sub-
plots within these major themes- such as the argument that a
credible system of State punishment is required to divert victimised
individuals from feeling the need to exact their own vengeance. HLA
Hart drew a distinction between the ‘general justifying aims’ for
having a system of punishment and the principles of distribution

40 Id, p. 4.
that should determine how punishment is allocated to individual
offenders. Hart argued that the general aim is the prevention and
control of crime, while individual distribution should be according to
the principle of desert. 41
The Importance of punishment being in the hands of state

institutions rather than victims or other individual resides in rule-of-
law values. Decisions on punishment should be taken by an
independent and impartial tribunal, not by individuals with an
emotional involvement in the events. The outcome should not be
dependent on the impartial application of settled principles, notably
principles that recognize the offender as a citizen capable of choice
and that regard proportionality of sentence to offence as a key value.
Whether all these considerations are taken care of is still a doubtful
question. This area of doubt makes it all the more important to
scrutinize the justifications for sentencing policy in general, for the
types of sentence that are used, and for the conditions that they
impose on offenders. 42 It follows that the general practice of
punishment by the state is only justified if it has two objectives, the
reduction of crime, and the promotion of respect for the criminal law.
The criminal law can only work successfully if the practice of
punishing for its breach as well as the nature and extent of the
punishment is accepted by a very substantial part of society; and it
is reasonable to assume that such a majority would in general
approve of punishments which are deserved. 43
3.7PUNISHMENTS UNDER THE INDIAN PENAL CODE

42 Supra Note 14, pp. 75-76.
43 Rupert Cross, The English Sentencing System, Butterworths, London,
(1975), p. 109.
Punishments for offences are provided in more than two hundred
Indian statutes. Bulk of the penal law is however, to be found in the
Indian Penal Code, 1860. Provisions of any enactment are related to
objective sought to be achieved. The framers of the Indian Penal
Code, 1860 have given deterrence as the only objective of various
punishments and have accordingly laid emphasis on severity of the
provisions. Imprisonments too were prescribed lavishly with the
same object. Punishments must be severe enough to act as a
deterrent but not too severe to be brutal. Similarly punishments
should be moderate enough to be humane but cannot be too
moderate to be ineffective. 44 Also, to mention, that a careful analysis
of crimes would indicate that the chief underlying causes are
poverty, unemployment, inadequate education and broken home. In
order to reduce crime, the social environment and circumstances
have to be radically improved. With the objective of deterrence at the
back of their mind, the Law Commissioners provided for
punishments as per order of gravity.
3.7.1 Death Penalty
Capital offences in most time periods and places have included both
acts that are considered Mala en se and acts that are Mala Prohibita.
Mala en se crimes are wrong because of their intrinsic evil nature
whereas Mala Prohibita crimes are wrong because some political
authority has defined them as illegal. Capital punishment is the
execution of a perpetrator for committing a heinous crime, and it is a
hotly debated topic in the present scenario. A dispassionate analysis
of criminological jurisprudence would reveal that capital punishment
is justified only in extreme cases in which a high degree of culpability
44 Report of the Committee on Reforms of Criminal Justice System, (2003),

p.169.
is involved causing grave danger to society. Capital punishment is
awarded for capital offences involving planned murder, multiple
murders, rape and murder etc. Throughout history, civilizations have
used capital punishment as a means of keeping social order as well
as retribution. Many cultures throughout the ages have used capital
punishment for grave offences, ranging from theft to murder. Many
ancient societies accepted the idea that certain crimes deserved
capital punishment.
"The Code of Hammurabi a legal document from ancient Babylonia

(in modern-day Iraq), contained the first known death penalty laws.
Under the code, written in the 1700s B.C., twenty-five crimes were
punishable by death. These crimes included adultery (cheating on a
wife or husband) and helping slaves escape. Murder was not one of
the twenty-five crimes." Ancient Roman and Mosaic Law authorized
the thought of retribution, they believed in the rule of “an eye for an
eye and a tooth for a tooth”, in the same way, the ancient Egyptians,
Assyrians and Greeks all executed citizens for a variety of crimes.
The most prominent people executed are Socrates and Jesus.
In England, during the reigns of King Canute and William the

Conqueror the death penalty was not used. Later, Britain reinstated
the death penalty and brought it to the American colonies. Most of
the death sentences involved torture, such as burning at the stake,
breaking on the wheel, slow strangulation and many more severe
punishments, but as humanitarian movement grew in strength and
the intensity of the punishments by then, have reduced. At present
the common modes of execution of death sentence, which are
prevailing in the different parts of the world are, electrocution,
guillotine, shooting, gas chamber, hanging and lethal injection. 45
TABLE: PROVISIONS/LAWS PROVIDING DEATH PENALTY
Provisions under Nature of Offense

the Indian Penal
Code/Other Laws
Section 120B IPC Being a party to a criminal conspiracy to commit a capital offense
Section 121 IPC Waging, or attempting to wage war, or abetting waging of war,
against the Government of India
Section 132 IPC Abetting a mutiny in the armed forces (if a mutiny occurs as a
result), engaging in mutiny
Section 194 IPC Giving or fabricating false evidence with intent to procure a
conviction of a capital offense
Section 302 IPC Murder
Section 303 IPC Punishment for Murder by Life Convict
Section 305 IPC Abetting the suicide of a minor, mentally ill person, or intoxicated
person
Section 364A IPC Kidnapping, in the course of which the victim was held for ransom or
other coercive purposes.
Section 396 IPC Banditry with murder - in cases where a group of five or more
individuals commit banditry and one of them commits murder in the
course of that crime, all members of the group are liable for the
death penalty.
376A of IPC and Rape if the perpetrator inflicts injuries that result in the victim's
Criminal Law death or incapacitation in a persistent vegetative state, or is a
(Amendment) Act, repeat offender
2013
Part II Section 4 of Aiding or abetting an act of Sati
Prevention of Sati
Act
Bombay Prohibition In Gujarat only - Manufacture and sale of poisoned alcohol which
(Gujarat results in death(s)
Amendment) Bill,
2009
Capital Offences in other laws
Sl.
Section Number Description
No.
1. Sections 34, 37, and 38(1) The Air Force Act, 1950
The Andhra Pradesh Control of Organised Crime Act,
2. Section 3(1)(i)
2001
3. Section 27(3) The Arms Act, 1959 (repealed)
4. Sections 34, 37, and 38(1) The Army Act, 1950
5. Sections 21, 24, 25(1)(a), The Assam Rifles Act, 2006
45TeranceMiethe and Hong Lu, Punishment: A Comparative Historical Perspective,

Cambridge University Press, Cambridge, (2005), p. 38.
and 55
6. Section 65A(2) The Bombay Prohibition (Gujarat Amendment) Act, 2009
Sections 14, 17, 18(1)(a),
7. The Border Security Force Act, 1968
and 46
8. Sections 17 and 49 The Coast Guard Act, 1978
9. Section 4(1) The Commission of Sati (Prevention) Act, 1987
10. Section 5 The Defence of India Act, 1971
11. Section 3 The Geneva Conventions Act, 1960
12. Section 3 (b) The Explosive Substances Act, 1908
Sections 16, 19, 20(1)(a),
13. The Indo-Tibetan Border Police Force Act, 1992
and 49
14. Section 3(1)(i) The Karnataka Control of Organised Crime Act, 2000
15. Section 3(1)(i) The Maharashtra Control of Organised Crime Act, 1999
The Narcotics Drugs and Psychotropic Substances Act,
16. Section 31A(1)
1985
Sections 34, 35, 36, 37, 38,
17. 39, 43, 44, 49(2)(a), 56(2), The Navy Act, 1957
and 59
The Petroleum and Minerals Pipelines (Acquisition of
18. Section 15(4)
rights of user in land) Act, 1962
Sections 16, 19, 20(1)(a),
19. The SashastraSeema Bal Act, 2007
and 49
The Scheduled Castes and Scheduled Tribes (Prevention
20. Section 3(2)(i)
of Atrocities) Act, 1989
The Suppression of Unlawful Acts against Safety of
21. Section 3(1)(i) Maritime Navigation and Fixed Platforms on Continental
Shelf Act, 2002;
Sections 10(b)(i) and
22. The Unlawful Activities Prevention Act, 1967
Section 16(1)(a)
Source: India. Law Commission of India, Report no.262 on Death Penalty, August 2015,
pp.31-32
Death Sentence has been used as an effective weapon of retributive

justice for centuries. The justifications argued that it is lawful to
forfeit the life of a person who takes away another life. A person who
kills another must be eliminated from the society and therefore, fully
merits his execution, thus the motive for death penalty may include
vengeance, which is compensatory and reparatory satisfaction for an
injured party, group or society. The fear of being condemned to death
is perhaps the greatest deterrent, which keeps a person away from
criminality. The topic of capital punishment is difficult to discuss as
there are varied opinions on the issue. 46
Capital punishment in the past was intended to inflict pain and

suffering and the same time to be a public spectacle delivering a
moral message through a dreadful example of the cost of sin and
crime 47. To take but one example: David Johnson explains that in
Japan in the period up to 1867, when most crimes were punished by
death, 'execution methods ranged from boiling, burning and
crucifixion to several levels of beheading ... Prior to execution,
condemned criminals were paraded through the streets on
horseback. Afterwards, bodies and heads were displayed on
platforms or carried through the streets’. 48
Because it results in the death of the accused, capital punishment is

the ultimate corporal sanction. The wide variety of methods of
execution used over time and place can be distinguished according to
whether they involve instant or slow death. Beheadings, hangings,
and strangulations have been identified as the most common means
for merciful or instant death. 49 The use of firing squads, gas
chambers, and lethal injections are modern forms of instant death.
In contrast, lethal methods associated with a slow or lingering death
included the acts of burning, boiling, stoning, crucifixion, draw and
quartering, and being “broken on the wheel.”
46 Areti Krishna (ed), Death Penalty: New Dimensions, ICFAI University Press,
Amicus Books, Hyderabad, (2007), pp. I-III.
47 Stuart Banner, The Death Penalty: An American History, Harvard University
Press, US, (2002), p. 31.
48 David T. Johnson, “Where the State kills in Secret. Capital Punishment in
Japan”, Punishment and Society, 2006, pp. 251-285.
Public executions have been condemned by the United Nations
Human Rights Committee as 'incompatible with human dignity 50. In
Resolution 2004/67 the Commission on Human Rights urged states
to ensure that where capital punishment occurs it shall not be
carried out in public or in any other degrading manner. Yet
executions have taken place in public, or been broadcast on
television, in at least 19 countries or territories since 1995. To take a
few recent examples: In Uganda military executions took place in
2002 in the presence of about 1,000 people and again in 2003 before
200 people. 51
In Kuwait, in January and May 2004, the bodies of prisoners

executed by hanging were afterwards publicly displayed and four
men were hanged in public in Kuwait City in October 2005 for
trafficking in drugs. A public execution for murder took place by
firing squad in Equatorial Guinea in April 2006, and in Vietnam, in
April 2004, a woman was executed by firing squad 'in front of
hundreds of spectators' for smuggling heroin 52. In Saudi Arabia,
where public executions by beheading persist, four Sri Lankans were
executed in February 2007 and subsequently their bodies were
publicly displayed. 53 The most important amongst these all is the
execution of Saddam Husain which was broadcasted over the
television and was available on the internet over the social
networking sites and YouTube etc.
50 UN Doc. No. CCPR/C/79/Add. 65, 24 July 1996, para. 16, referring to

public executions in Nigeria.
51 FIDH, Uganda: Challenging the Death Penalty, Report 425/2 October 2005,
p. 35. See, <www.fidh.org/IMG/pdf/ug425a.pdf>.
52 Amnesty International, Report 2005, p. 277. See, <
http://www.amnesty.org/en/library/info/POL10/001/2005/en>.
53 Human Rights Watch, Saudi Arabia: Four Sri Lankans Executed without
Warning, 21st February, 2007 at
<http://hrw.org/english/docs/2007/02/21/saudia15377.htm>.
There remains much dispute about the proper role of doctors in the
administration of the death penalty. In India the Supreme Court
ruled in January 1995 that doctors employed in prisons had an
obligation to participate in hangings by examining the body every few
minutes after the drop to ensure that death had occurred 54. In
strong contrast, the World Medical Association at its fifty-second
meeting, held in Edinburgh in 2000, 'Resolved, that it is unethical for
physicians to participate in capital punishment, in any way, or
during any step of the execution process. 55
3.7.1.1 Views on Retention or Abolition of Death Penalty
Abolitionist of capital punishment argues that it leads to miscarriage

of justice and the life imprisonment is a better substitute. They also
argue that it violates the right to life of the criminal. The legal
imposition in the society involves long and unavoidable delays.
Retentionist argues that as it is served when someone is put to death
for committing murder with aggravating circumstances, capital
punishment removes criminals from the society and reduces the
crime in long run.
It is to be stated that some of the arguments on both sides have

substance and carry weight: Prof. H.L.A. Hart sums up the position
in the following words: "There are indeed ways of defending and
criticizing death penalty which are quite independent of the
utilitarian position and of the questions of fact which the utilitarian
54 Amnesty International, “India: Supreme Court Judgment Violates Medical

Ethics,” Medical Death Penalty Newsletter, 1995, p. 1.
55 British Medical Association, Medicine Betrayed, 1992, pp. 100-102.
Available at
<http://books.google.co.in/books?id=fSZwglgRnHsC&pg=PA168&lpg=PA16
8&dq=British+Medical+Association,+Medicine+Betrayed,+1992,+pp.+100-
102&source=bl&ots=gbh8sFam26&sig=O46VQgBvHLzV1kcGF6s5DvYzh6U
&hl=en&sa=X&ei=hARQUY2JK8yWrgegmoG4Cw&ved=0CCwQ6AEwAA>.
will consider as crucial. For some people the death penalty is ruled
out entirely as something absolutely evil which, like torture, should '
never be used however many lives it might save. Those who take this
view find that they are sometimes met by the counter assertion that
the death penalty is something which morality actually demands, a
uniquely appropriate means of retribution or 'reprobation' for the
worst of crimes, even if its use adds nothing to the protection of
human life." However, there has been some proximity between these
two views on some points. 56
The United Nations Committee that studied capital punishment

found that 'it is generally agreed between the retentionist and
abolitionists, whatever their opinion about the validity of comparative
studies of deterrence, that the data’s which now exist show no
correlation between the existence of capital punishment and lower
rates of crime.
Eight Objections to Death Penalty: The American Civil Liberties

(ACLU) Union believes the death penalty inherently violates the
constitutional ban against cruel and unusual punishment and the
guarantees of due process of law and of equal protection under the
law.
Arguments against the retention of the Capital Punishment:
1. The Capital Punishment is neither deterrent nor has the

retributive value as witnessed by the history.
2. It is uncivilized, indecent, barbaric, cruel and revengeful and is

stigma on the society.
56 Retrieved from
<www.retfaerd.org/gamle_pdf/.../Retfaerd_115_2006_4_s96_101.pdf> last
visited on 26th March 2013 at 12:01 IST.
3. It is inhuman, if one cannot give life how is it justified to take
it.
4. If injustice happens with an innocent it cant be corrected.
5. It serves no economical gains and is immoral too.
6. It leaves no room for reformation of the guilty neither he gets

the opportunity thereof
Arguments for retention of the Capital Punishment
1. All the social contracts theories have sanctioned rights of the

State to penalize the criminal in the interest of the
administration of justice and same a necessary effective tool.
2. Those offenders who are incorrigible and dangerous should be

eliminated from the society in as much as they act heinously
and have no regards for Human Values.
3. It has a deterrent and retributive effect which is the main aim

of the administration of justice, as is substitute of private
vengeance and revenge and to protect the society, the sentence
is must.
4. The possibility of death sentence being wrongly used and

abused can be eliminated by good laws and proper executions.
5. It is a sort of right of private defence to the society against the

criminal.
6. It is constitutional as held by the judiciary.
7. It serves to protect the life and liberty of the individuals of the

society.
8. It is economical and less cruel than keeping the one under

imprisonment for life, leaving him to die at an indefinite time,
with no hope to come out of prison.
9. It prevents overcrowding of prison. It has a great value in

satisfying the victims of the crime.
At the initial stage, the provisions under the Indian Penal Code, 1860
prescribed death as a rule and life as an exception in case of a
murder. But slowly with the passage of time the trend tilted towards
liberalization of the interpretation and provided that if death
sentence is to be awarded reasons for the same were to be mentioned
and now the courts try to find out the special reasons while awarding
death sentence. It is in the rarest of the rare case, that death
sentence should be awarded. But the million dollar question still
remains to be answered - what are those cases which come under
the category of rarest of rare cases. The judges of the apex court and
other courts subordinate to the apex court have not been able to
specify the category rarest of rare cases". Thus there is inconsistency
in the judgments delivered by the courts including the apex court
while dealing with cases that carry death sentence or life
imprisonment.
In India also a serious debate on the abolition of death sentence has

been going on for quite a long time. Even during the British Rule, the
Indians made a serious attempt to procure abolition of capital
punishment. In the year 1931, Gaya Prasad Singh introduced a bill
for the abolition of capital punishment in the Legislative Assembly,
but a motion for circulation of the Bill was defeated after it was
opposed by the government. After India became independent, a
similar Bill was the introduced in the Lok Sabha by MukandLal
Agarwal, a sitting Member of Parliament, in the year 1956, but the
same was rejected by the Government. In the year 1958 a resolution
for abolition was moved in Rajya Sabha by Prithvi Raj Kapoor. The
same was withdrawn after a debate in the Rajya Sabha. On this
Prithvi Raj said: "The ripples are created and it is in the air." Its
purpose has been served, said Kapoor. In the year 1961, a further
resolution was moved by Savitri Nigam, another Rajya Sabha
member. But the same was negatived after debate. 57
In the year 1962, another resolution of abolition of capital

punishment was moved in the Lok Sabha by Raghunath Singh, a
sitting member of Parliament. The said resolution received a serious
attention but was withdrawn on the undertaking given by the
Government that a transcript of the whole debate would be
forwarded to the Law Commission for consideration in the context of
its review of the Indian Penal Code, 1860 and the Criminal Procedure
Code, 1973. The Law Commission in the year 1967 submitted a
separate report on capital punishment to the Government. 58 The
Report hence favoured the retention. The 35th Law Commission
Report’s recommendations stated:
It is difficult to rule out the validity of, or the strength behind,

many of the arguments for abolition. Nor does the Commission
treat lightly the argument of irrevocability of the sentence of
death, the need for a modern approach, the severity of capital
punishment, and the strong feeling shown by certain sections
of public opinion, in stressing deeper questions of human
values. Having regard, however, to the conditions in India, to
the variety of the social upbringing of its inhabitants, to the
disparity in the level of morality and education in the country,
to the vastness of its area, to the diversity of its population,
and to the paramount need for maintaining law and order in
the country at the present juncture, India cannot risk the
experiment of abolition of capital punishment. Arguments
which would be valid in respect of one area of the world may
not hold good in respect of another area in this context.
Similarly, even if abolition in some parts of India may not
make a material difference, it may be fraught with serious
consequences in other parts. On a consideration of all the
issues involved, the Commission is of the opinion that capital
57 Retrieved from <www.fiacat.org/en/IMG/pdf/dpindia-en.pdf> last visited

on 26th March 2013 at 12:13 IST.
58 Janak Raj (ed.), “Movement for Abolition of Capital Punishment”, in Death
Penalty, Regency Publications, New Delhi, (2005), p. 13.
punishment should be retained in the present state of the
country. 59
The international community’s consensus against the death penalty

is growing; India thus is becoming increasingly isolated in its
commitment to the death penalty. India has complied with the
International Human Rights Instruments such as the International
Covenant Civil and Political Rights but has not followed with
abolishing the death penalty as so many other nations have done. In
December 2007, India voted against a United Nations General
Assembly resolution calling for a moratorium on the death penalty.
In November 2012, India again upheld its stance on capital
punishment by voting against the UN General Assembly draft
resolution seeking to ban death penalty 60. On 31 August 2015, the
Law Commission of India submitted 262nd Report to the government
which recommended the abolition of capital punishment for all
crimes in India, excepting the crime of waging war against the nation
or for terrorism-related offences. The report cited several factors to
justify abolishing the death penalty, including its abolition by 140
other nations, its arbitrary and flawed application and its lack of any
proven deterring effect on criminals.
3.7.1.2 Code of Criminal Procedure and Death Sentence
- It is only the Sessions Court who alone can declare the death
sentence as per the set of offences enlisted in the Indian Penal
Code, 1860i.e. the Judicial Magistrate below the rank of
Sessions Judge has no authority to impose a death sentence.
59 Law Commission of India, 35th Report, 1967, at para 1 (Summary of Main

Conclusions and Recommendations), Retrieved from
<http://lawcommissionofindia.nic.in/1- 50/Report35Vol1and3.pdf> last
visited on 19th April, 2017 at 19:16 IST.
60 Retrieved from < http://india.blogs.nytimes.com/2012/11/21/as-un-
votes-to-abolish-death-penalty-a-wave-of-executions-in-south-asia/> last
visited on 25th March 2013 at 11:39 IST.
- Prior to 1955, Section 367(5) of the Code of Criminal Procedure,
1898 insisted upon the Court to state its reasons if the
sentence of death was not imposed in case of murder. But in
1955 Sub-Section (5) of Section 367 was deleted. The deletion
of Sub-Section (5) of Section 367 meant that normally the
sentence of life imprisonment should be the rule and death
sentence should be imposed only if there were aggravating
circumstances.
- In the present Code of Criminal Procedure it is provided in

Section 354 that the judge has to give special reasons for
imposition of death sentence. Also, it is mandatory for the
judge to allow hearing, for the punishment imposed.
- Section 366 of the Code of Criminal Procedure provides that

when a Sessions Court passes a sentence of death, it will not
be executed until the High Court confirms the same.
3.7.1.3 Constitutionality and Death Sentence
The Constitutionality aspect of Death Sentence will be discussed

hereafter with the help of principles held in Case Laws:
Serial Case and Citation Held

No
1. Jagmohan Singh v. The first challenge to the constitutionality of the death
State of U. P penalty in India came in the 1973. he petitioners argued
(1973) 1 SCC 20 that the death penalty violated Articles 14, 19 and 21 of
the Constitution of India. It was argued that since the
death sentence extinguishes, along with life, all the
freedoms guaranteed under Article 19(1) (a) to (g), it was
an unreasonable denial of these freedoms and not in the
interests of the public. Further, the petitioners argued that
the discretion vested in judges in deciding to impose
death sentence was uncontrolled and unguided and
violated Article 14. Finally, it was contended because the
provisions of the law did not provide a procedure for the
consideration of circumstances crucial for making the
choice between capital punishment and imprisonment for
life, it violated Article 21. This case was decided before
the Code of Criminal Procedure was re-enacted in 1973,
making the death penalty an exceptional sentence. The
Supreme Court found that the death penalty was a
permissible punishment, and did not violate the
Constitution.
2. EdigaAnamma v. In commuting the death sentence to life imprisonment,
State of Andhra the Court observed the following: “In any scientific system
Pradesh which turns the focus, at the sentencing stage, not only
(1974) 4 SCC 443. on the crime but also the criminal, and seeks to
personalise the punishment so that the reformatory
component is as much operative as the deterrent
element, it is essential that facts of a social and personal
nature, sometimes altogether irrelevant if not injurious at
the stage of fixing the guilt, may have to be brought to the
notice of the Court when the actual sentence is
determined.” the court also said, “a legal policy on life or
death cannot be left for ad hoc mood or individual
predilection and so we have sought to objectify to the
extent possible, abandoning retributive ruthlessness,
amending the deterrent creed and accenting the trend
against the extreme and irrevocable penalty of putting out
life”.
3. Rajendra Prasad v. The Court found itself confronting, not the constitutionality
State of Uttar of the death sentence, but that of sentencing discretion.
Pradesh The Court per majority (of two judges) said, “special
1979) 3 SCC 646 reasons necessary for imposing death penalty must
relate, not to the crime as such but to the criminal”.
4. Bachan Singh v. The Court adopted the ‘rarest of rare’ guideline for the
State of Punjab, imposition of the death penalty, saying that reasons to
(1980) 2 SCC 684 impose or not impose the death penalty must include the
circumstances of the crime and the criminal. Justice
Bhagwati in his dissenting opinion found the death
penalty necessarily arbitrary, discriminatory and
capricious. He reasoned that “the death penalty in its
actual operation is discriminatory, for it strikes mostly
against the poor and deprived sections of the community
and the rich and the affluent usually escape, from its
clutches. This circumstance also adds to he arbitrary and
capricious nature of the death penalty and renders it
unconstitutional as being violative of Articles 14 and 21.”
5. Mithu v. State of The Supreme Court was confronted with the mandatory
Punjab sentence of death enacted in Section 303 of the IPC. The
(1983) 2 SCC 277. Court held that the mandatory death sentence was
unconstitutional, stating: “A standardized mandatory
sentence, and that too in the form of a sentence of death,
fails to take into account the facts and circumstances of
each particular case. It is those facts and circumstances
which constitute a safe guideline for determining the
question of sentence in each individual case”.
6. Deena v. Union of Rejecting a constitutional challenge to execution by

India hanging, held that while a prisoner cannot be subjected to
(1983) 2 SCC 277. barbarity, humiliation, torture or degradation before the
execution of the sentence, hanging did not involve these
either directly or indirectly.
7. ParmanandKatara v. The Court accepted that allowing the body to remain
Union of India hanging beyond the point of death – the Punjab Jail
1995) 3 SCC 248. Manual instructing that the body be kept hanging for half
an hour after death – was a violation of the dignity of the
person and hence unconstitutional.
8. T.V. Vatheeswaran v. The Court held that a delay in execution of sentence that
State of Tamil Nadu exceeded two years would be a violation of procedure
(1983) 2 SCC 68 guaranteed by Article 21.
9. Sher Singh v. State of It was held that delay could be a ground for invoking
Punjab Article 21, but that no hard and fast rule could be laid
1983) 2 SCC 344 down that delay would entitle a prisoner to quashing the
sentence of death.
10. Trivenibenv. State of The Court said, “the only delay which would be material
Gujarat for consideration will be the delays in disposal of the
1989) 1 SCC 678 mercy petitions or delay occurring at the instance of the
Executive.”
11. Shatrughan Chauhan This case also laid down guidelines for “safeguarding the
v Union of India. interest of the death row convicts” which included
(2014) 3 SCC 1. reaffirming the unconstitutionality of solitary or single cell
confinement prior to rejection of the mercy petition by the
President, necessity of providing legal aid, and the need
for a 14- day period between the rejection of the mercy
petition and execution.
Shatrughan Chauhan The Supreme Court has characterized the nature of
v. Union of India, mercy provisions (Articles”72 and 161) as constitutional
(2014) 3 SCC 1, at duty rather than privilege or a matter of grace.
paras 98-103
12. Vikram Singh v. The Supreme Court acknowledged that “punishments

Union of India, must be proportionate to the nature and gravity of the
(Criminal Appeal No. offences for which the same are prescribed” However, it
824 of 2013, held that “Section 364A cannot be dubbed as so
Supreme Court of outrageously disproportionate to the nature of the offence
India, decided on as to call for the same being declared unconstitutional”
August 21, 2015) saying death sentences would only be awarded in the
rarest of rare cases.
13. EpuruSudhakar v. The exercise of power under Article 72 by the President
Govt. of A.P. and Article 161 by the Governor is subject to limited form
(2006) 8 SCC 161 of judicial review.
Source: India. Law Commission of India, Report no.262 on Death Penalty, August 2015
3.7.1.4 Alternative to Death Penalty
Section 53 of the Indian Penal Code, 1860 enumerates various kinds

of punishments 61 that can be awarded to the offenders, the highest
being the death penalty and the second being the sentence of
imprisonment for life. At present there is no sentence that can be
awarded higher than imprisonment for life and lower than death
penalty. In USA a higher punishment called “Imprisonment for life
61 Various Punishments laid down in the Indian Penal Code, 1860 are: Death
Penalty, Life Imprisonment: Simple and Rigorous Imprisonment, Fine.
without commutation or remission” is one of the punishments. As
death penalty is harsh and irreversible the Supreme Court has held
that death penalty should be awarded only in the rarest of the rare
cases, the committee considers that it is desirable to prescribe a
punishment higher than that of imprisonment for life and lower than
death penalty. Section 53 is suitably amended to include
“Imprisonment for life without commutation or remission” as one of
the punishments. Wherever imprisonment for life is one of the
penalties prescribed under the Indian Penal Code, 1860 the following
alternative punishment be added namely “imprisonment for life
without commutation or remission”. Wherever punishment of
imprisonment for life without commutation or remission is awarded,
the State Governments cannot commute or remit the sentence.
Therefore, suitable amendment may be made to make it clear that
the State Governments cannot exercise power of remission or
commutation when sentence of “Imprisonment for life without
remission or commutation” is awarded. This however cannot affect
the Power of Pardon etc. of the President and the Governor under
Articles 72 and 161 of the Constitution of India, 1950 respectively. 62
Countries that seek to abolish the death penalty face the task of
establishing viable alternatives that sufficiently satisfy the demands
of retribution while remaining proportionate to the gravity of the
crime; that appear not to greatly lessen any possible marginal
deterrent effect; that incapacitate those who continue to pose a
genuine threat to public safety; and that provide a humane
environment with opportunities for the prisoner to be rehabilitated,
or at least not made more dangerous by the conditions of
confinement.
62 Supra Note 44, pp. 175-176.
In considering what should replace the death penalty they will, of
course, need to bear in mind that there is a difference between:
(i) providing a suitable penalty in cases where the executive

reprieves or commutes a death sentence;
(ii) replacing the death penalty for crimes of lesser seriousness

than murder when the scope of capital punishment is being
retracted;
(iii) finding a replacement penalty for murder when a mandatory

death sentence is abolished and the courts are allowed
discretion as to punishment; and
(iv) replacing capital punishment de jure at what is often the last

cycle of the abolition process, when executions have been
reserved for a small number of the most egregious murders: in
other words, replacing the death penalty for what are
commonly called the 'worst of the worst' or the 'rarest of the
rare' murders.
Retentionist countries, whether they are considering partial or total

abolition, will naturally turn to examine the experience of countries
that have already gone through this process. It is, as Hugo Bedau
stated, 'the oldest of all the issues raised by the two-century struggle
in Western civilization to end the death penalty. 63
Mercy Petitions Decided by the President of India
Number of Number of
Sl. Mercy Mercy
Name of the President Tenure Total
No. Petitions Petitions
Accepted Rejected
26.1.1950 –
1. Dr.Rajendra Prasad 180 1 181
3.5.1962
13.5.1962 -
2. Dr.SarvapalliRadhakrishnan 57 0 57
13.5.1967
13.5.1967 –
3. Dr.ZakirHussain 22 0 22
3.5.1969
3.5.1969 –
4. Shri V.V. Giri 3 0 3
20.7.1969;
63 H. Bedau, 'Imprisonment vs Death: Does Avoiding Schwarzschild's Paradox

lead to Sheleff's Dilemma?' Albany Law Review,1990, pp. 481-495 at 481.
24.8.1969 –
24.8.1974
24.8.1974 –
5. Dr.Fakrudhin Ali Ahmed NA NA 0
11.2.1977
25.7.1977 –
6. Shri N Sanjeeva Reddy NA NA 0
5.7.1982
25.7.1982 –
7. GianiZail Singh 2 30 32
25.7.1987
25.7.1987 –
8. Shri R. Venkatraman 5 45 50
25.7.1992
25.7.1992 –
9. Dr. Shankar Dayal Sharma 0 18 18
25.7.1997
25.7.1997 –
10. Shri K.R. Narayanan 0 0 0
25.7.2002
25.7.2002 -
11. Dr. A.P.J. AbulKalam 1 1 2
25.7.2007
25.7.2007 –
12. Smt. PratibhaDevisinghPatil 34 5 39
25.7.2012
13. Shri Pranab Mukherjee 25.7.2012 -- 3 31 34
Total 307 131 438
Source: India. Law Commission of India, Report no.262 on Death Penalty, August 2015,
pp.188-189
3.7.2 Transportation
Again, when describing the utility of punishment of transportation,

they said, “The consideration which has chiefly determined us to
retain that mode of punishment is our persuasion that it is regarded
by the natives of India, particularly by those who live at a distance
from the sea, with a peculiar fear. The pain which is caused by the
punishment is an unmixed evil. It is by the terror which it inspires
that it produces good and perhaps no punishment inspires in
proportion to the actual pain which it causes as the punishment of
transportation in his country. Prolonged imprisonment may be more
painful in actual endurance but it is not so much dread before hand,
nor does the sentence of imprisonment strike the offender or the
bystanders with so much horror as a sentence of exile beyond what
they call black water... it is natural that this fate should impress
them with a deep feeling of terror. It is on this feeling that the
efficacy of the punishment depends”. 64 Lord Cornwallis sent the first
batch of Indian convicts to Bencoolen in Sumatra in 1787.
Transportation has now been substituted by life imprisonment. The

sentence of transportation either for life or for a term inexorably
meant, rigorous imprisonment in the sense of exaction of hard
labour from the convict. Sub Section (2) read with Sub Section (1) of
Section 53-A 65 of Indian Penal Code, 1860 affords clear indication by
necessary implication that a sentence of “imprisonment for life” must
be regarded as equivalent to “rigorous imprisonment for life”. In case
of Gopal VinayakGodsev. State of Maharashtra 66 court held that ‘a
person sentenced to transportation for life, or any other term before
the enactment of the impugned section, was to be treated as a
person sentenced to rigorous imprisonment for life or for a lesser
period as the case might be.’
65 Section 53-A of the Indian Penal Code, 1860: Construction of reference to
transportation.—
(1) Subject to the provisions of sub-section (2) and sub-section (3), any
reference to “transportation for life” in any other law for the time
being in force or in any instrument or order having effect by virtue
of any such law or of any enactment repealed shall be construed as
a reference to “imprisonment for life”.
(2) In every case in which a sentence of transportation for a term has
been passed before the commencement of the Code of Criminal
Procedure (Amendment) Act, 2[1955] (26 of 1955), the offender shall
be dealt with in the same manner as if sentenced to rigorous
imprisonment for the same term.
(3) Any reference to transportation for a term or to transportation for
any shorter term (by whatever name called) in any other law for the
time being in force shall be deemed to have been omitted.
(4) Any reference to “transportation” in any other law for the time being
in force shall,—
(a) if the expression means transportation for life, be construed
as a reference to imprisonment for life;
(b) if the expression means transportation for any shorter term,
be deemed to have been omitted.]
66 AIR 1961 SC 600.
3.7.3 Imprisonment for Life
Imprisonment for life, as a distinct punishment for certain grave

offences under the Indian Penal Code, 1860, was authorized by law
with effect from the 1st January, 1956, when the Code of Criminal
Procedure (Amendment) Act, 1955, came into force. Though this Act
was mainly concerned with making extensive amendments in the
Code of Criminal Procedure, for diverse purposes, it also amended
Indian Penal Code in one important aspect. The punishment of
transportation was abolished altogether, and the old punishment of
transportation for life was repealed by the punishment of
“Imprisonment for Life”.
An analysis of the relevant sections of the Indian Penal Code, 1860

shows that the punishment of transportation was, in all except two
instances, for life only two sections provided for a sentence of
transportation for a shorter term, namely Section 121A dealing with
the conspiracy to commit offences punishable under Section 121 and
Section 124 A dealing with sedition. These two sections were inserted
by an Amending Act of 1870. Under Section 121A, the offender could
be punished with transportation for life or for “any shorter term” and
under Section 124 A, the offender could be punished with
transportation for life or for “any term”.
TABLE: PROVISIONS RELATED TO THE PUNISHMENT OF TRANSPORTATION
Serial Punishment Offences (Sections)

No.
1. Offences punishable only with • Thug- Section 311
transportation for life • Extortion by threat of accusation of
an offence punishable with death or
imprisonment for life, etc.
2. Offences punishable with death or • Murder-Section 302
transportation for life • Waging War against the
Government of India- Section 121
3. Offences punishable with death or • Dacoity with Murder-Section 396
transportation for life or rigorous • Fabricating False Evidence with the
imprisonment for a term usually intent to procure conviction of a
upto 10 years. capital offence, if an innocent
person is convicted and executed in
consequence thereof- Section 194
4. Offences punishable with death or • Attempt to murder by life convicts-
transportation for life or Section- 307
imprisonment of either description • Abetment of suicide of a child or
of a term (usually upto 10 years) insane person-Section 305
5. Offences punishable with • Kidnapping in order to murder-
transportation for life or Rigorous Section -364
imprisonment for a term usually • Dacoity-Section 395
upto 10 years • House trespass in order to commit
an offence punishable with death-
Section 449.
6. Offences punishable with • Intentional Omission by a public
transportation for life or servant to apprehend a person
imprisonment of either description under sentence of death- Section
for a term upto 7 years 222
• Rape- Section 376
• Other provisions relating to transportation (as they stood before the Amending Act
of 1955) are: Section 55, 57, 58 and 59 of the Indian Penal Code, 1860.
3.7.3.1 Interpretation of “Life Imprisonment”
Section 45 of the Indian Penal Code, 1860 defines life as “The word
“life” denotes the life of a human being, unless the contrary appears
from the context”. The word “imprisonment” has not been defined
either in the Code of Criminal Procedure, 1973 or in the Indian Penal
Code. As per the General Clauses Act, 1897 under Section 3(27) –
“imprisonment” shall mean imprisonment of either description as
defined in the Indian Penal Code, 1860. The definition of
imprisonment under the General Clauses Act, 1897 would, therefore,
in case of life imprisonment mean imprisonment for
life/imprisonment for the remainder of the convict's life.
The sentence of imprisonment for life must prima facie be treated as

imprisonment for the whole of the remaining period of the convicted
person’s natural life. There is no provision of law under which a
sentence for life imprisonment, without any formal remission by
appropriate government can be automatically treated as one for
definite period. The question of remission is exclusively within the
province of appropriate government. 67 Interpretations in regard to
meaning of Life Imprisonment are stated below:
S. Name of the Case Citation Held

No.
1. Naib Singh v. State of (1983) Cri.L.J A sentence of imprisonment running

Punjab 1345 throughout the remaining period of a
convict’s natural life.
2. SubashChander vs. (2001) 4 SCC This Court held that life
KrishanLal&Ors. 458 imprisonment means imprisonment for the
whole of the remaining period of the
convicted person’s natural life unless the
appropriate Government chooses to
exercise its discretion to remit either the
whole or a part of the sentence under
Section 401 of the Code of Criminal
Procedure, 1973.
3. Shri Bhagwan vs. (2001) 6 SCC The Court held that life
State of Rajasthan 296. imprisonment means imprisonment for the
whole of the remaining period of the
convicted person’s natural life.
4. Mohd. Munna v. Union (2005) 7 SCC The Court held that
of India 417. the life imprisonment means imprisonment
for whole of the remaining period of the
convicted person’s natural life. There is no
provision either in the Indian Penal Code,
1860 or in the Code of Criminal
Procedure,1973
whereby life imprisonment could be
treated as either 14 years or 20 years
without there being of formal remission by
the appropriate Government.
5. Duryodhan Rout v. 1 July, 2014 In view of the fact that life
State Of Orissa imprisonment means imprisonment for full
and complete span of life, the question of
consecutive sentences in case of
conviction for several offences at one trial
does not arise.
This opinion was recently restated in Ramesh Bhai

ChandubhaiRathode v. State of Gujarat 68, and State of U.P. v. Sanjay
Kumar 69, where the Supreme Court affirmed that life imprisonment
cannot be equivalent to imprisonment for 14 or 20 years, and that it
67 BhagiRath v. Delhi Administration, 1985 Cri.LJ 1179. Also, Ashok Kumar

alias Golu v. Union of India, 1991 CriLJ 2483, Abdul Azad v. State, 1976
Cri.LJ 315, State of M.P. v. Ratan Singh, AIR 1976 SC 1552.
68 (2011) 2 SCC 764.
69 (2012) 8 SCC 537
actually means (and has always meant) imprisonment for the whole
natural life of the convict. 70
Also, provisions of the Criminal Law (Amendment) Act, 2013 explain

Imprisonment for Life to be reminder of that person’s natural life.
Following are some of the provisions prescribing Life Imprisonment:
Section Offence Punishment

Section 370 - Person convicted of offence of - Imprisonment for life which shall
trafficking of minor more than mean the reminder of that
one occasion person’s natural life and with fine
- Public servant or a police officer - Imprisonment for life which shall
involved in trafficking of minor mean the reminder of that
person’s natural life and with fine
Section 376 Rape by Police/Public servant / Rigorous Imprisonment not less than
member of armed forced / staff of 10, but which may extend to
jail/person on the imprisonment for life which shall
management/staff of hospital/ mean the remainder of that person’s
relatives etc. natural life and with fine
Section 376- Person committing an offence of Rigorous Imprisonment not less than
A rape and inflicting injury which 20, but which may extend to
causes death or causes the woman imprisonment for life which may
to be in a persistent vegetative extend to imprisonment for life which
state shall mean imprisonment for the
remainder of that person’s natural life
and with fine.
Section 376- Gang Rape Rigorous Imprisonment not less than
D 20, but which may extend to
imprisonment for life which may
extend to imprisonment for life which
shall mean imprisonment for the
remainder of that person’s natural life
and with fine to be paid to the victim.
Section 376- Repeat offenders Imprisonment for life which mean
E imprisonment for the remainder of
that person’s natural life or with
death.
3.7.3.2 Imprisonment for Life is Rigorous Imprisonment
Providing the categories of Simple or Rigorous nature of

imprisonment has imposed a question as to what form is the
punishment of Imprisonment for life, that is, does it belong to the
simple or rigorous or is it a third category. The Supreme Court
70 Report of the Committee on Amendments to Criminal Law, 2013, p. 239.
decided “we consider that the ends of justice would be met if we
sentence the accused to rigorous imprisonment for life” 71. Also, in
case of Urlikia Medina v. State 72, the Orissa High Court has held that
“imprisonment for life” means “rigorous imprisonment for life”. The
main grounds on which the decision is based are:
(a) The proposition laid down by the Privy Council 73 and

reaffirmed by the Supreme Court 74, that a person sentenced to
transportation could be treated as a person sentenced to
rigorous imprisonment.
(b) The Report of the Joint Committee which considered the Code
of Criminal Procedure (Amendment) Bill of 1954 observed that
substitution of “imprisonment” for “transportation” should not
change the nature of the punishment.
(c) The non applicability of Section 60 of IPC to the punishment of

imprisonment for life 75.
In the case of K. M. Nanavativ. State of Maharashtra,(1959)the court

held that in such a case life imprisonment in such a case meant
rigorous imprisonment for life and not simple imprisonment. The
39th Report of Law Commission suggests the insertion of express
provision stating, “Imprisonment for Life shall be Rigorous”. In
regard to the punishment of imprisonment, it should be noticed that
none of the sections of the Indian Penal Code, as enacted in 1860 or
subsequently, made any offence punishable with imprisonment for
71 State of Madhya Pradesh v. Ahmadullah, AIR 1961 SC 998.

72 AIR 1964 Orissa 149.
73 KishoriLalv. Emperor, AIR 1945 P.C. 64.
74 G. V. Godse v. State, AIR1961 SC 602.
75 Section 60 of the Indian Penal Code, 1860 Provides that, Sentence may be
(in certain cases of imprisonment) wholly or partly rigorous or simple.—“In
every case in which an offender is punishable with imprisonment which
may be of either description, it shall be competent to the Court which
sentences such offender to direct in the sentence that such imprisonment
shall be wholly rigorous, or that such imprisonment shall be wholly simple,
or that any part of such imprisonment shall be rigorous and the rest
simple”. Since in the case of a conviction under Section 302, the offender is
punishable with imprisonment for life and not with imprisonment of either
description. Section 60 does not seem to be applicable.
life. In fact where rigorous imprisonment is prescribed in the Code as
a punishment, the maximum term is 14 years or less. Even in the
case of consecutive sentences, the Code of Criminal Procedure limits
the total period of Imprisonment to a maximum of 14 years. 76
It was also held in the case of Nawal Thakur v.Brahmu Ram 77that
subjecting prisoners to Rigorous imprisonment to do hard work is
not bad at all or illegal. However, the same has to be done keeping in
view their will, physical strength and the upper most obligations so
make payment for work done.
3.7.3.3 Commutation and Remission of Sentence of

Imprisonment for Life
There is no provision either in the Indian Penal Code, 1860 or in the

Code of Criminal Procedure, 1973, whereby, life imprisonment could
be treated as fourteen years or twenty years without there being a
formal remission by the appropriate government. An accused
convicted of imprisonment for life may be granted remission for good
conduct. It was also held in the case of State of Madhya Pradesh v.
Ratan Singh, 78that as per Section 5779 of the Indian Penal Code,
1860, for the purpose of calculating remission, it is treated as a
sentence of 20 years.
In the case of LaxmanNaskarv. State of West Bengal 80the court stated

that, ‘solely on the basis of completion of a term in jail, serving
imprisonment and remissions earned under the relevant rules or law
76 39th Law Commission Report on “The Punishment of Imprisonment for Life

under the Indian Penal Code”, 1968, p. 1.
77 1985 Cri.L.J 244.
78 AIR 1976 SC 1552.
79 Fractions of terms of punishment.—In calculating fractions of terms of
punishment, [imprisonment] for life shall be reckoned as equivalent
to [imprisonment] for twenty years.
80 AIR 2000 SC 2762.
will not entitle an automatic release, but the appropriate government
must pass a separate order remitting the unexpired portion of the
sentence.
It is also held in the case of S.N. Ghandokarv. State of

Karnataka 81that Section 55 82, a supplement to Section 54 83 of the
Penal Code, empowers the Governments to commute the sentence of
imprisonment for life to imprisonment of either description for a term
not exceeding fourteen years. The power under this section is
executive in nature and is exercised by the Government without
consent of the accused. 84
A distinction must be drawn between commutation and remission

of a sentence as provided under Section 55 of Indian Penal Code,
1860 and Sections 433 and 433A of Code of Criminal Procedure,
1973. For, instance in the case of commutation the punishment
is altered to one of a different sort than that originally proposed.
While in the case of remission the amount of punishment is
reduced without changing the nature and character of the
punishment. Thus, an accused upon his release from jail after the
expiry of the period of imprisonment of 14 years, which was
commuted for the sentence of life imprisonment under Section 55
of Indian Penal Code, 1860 will not be regarded as being under
the sentence of imprisonment for life. On the other hand where
81 AIR 1981 SC 764.

82 Commutation of sentence of imprisonment for life.—In every case in which
sentence of [imprisonment] for life shall have been passed, [the appropriate
Government] may, without the consent of the offender, commute the
punishment for imprisonment of either description for a term not exceeding
fourteen years.
83 Commutation of sentence of death.—In every case in which sentence of
death shall have been passed, [the appropriate Government] may, without
the consent of the offender, commute the punishment for any other
punishment provided by this Code.
84 AIR 1981 SC 764.
the sentence of life imprisonment is remitted under Section
433 85Code of Criminal Procedure, 1973 the accused must be
regarded as still being under sentence of imprisonment for life.
Similarly, Section 433-A 86 puts restrictions on the powers of
remission or commutation in cases where sentence of death is
one of the alternative punishments for the offence or Death
Sentence has been commuted. Section 57 of Indian Penal Code,
1860 does not state that imprisonment for life shall be reckoned
as imprisonment for 20 years. A prisoner’s sentence of life
imprisonment will not automatically come to an end by lapse of
20 years. It is only the government that can remit, suspend or
commute the sentence.
A sentence for life would endure for the lifetime of the accused, as
it is not possible to fix a particular period of a prisoner’s death, so
any remission given under the rules cannot be regarded as a
substitute for a sentence for life. The rules framed under the
Prisons Act, 1894 or under a Jail Manual do not affect the total
period which the prisoner has to suffer, but merely amount to
administrative instructions regarding the various remissions to be
given to the prisoner from time to time in accordance with the
85 Power to commute sentence: The appropriate Government may, without the

consent of the person sentenced, commute-
(a) a sentence of death, for any other punishment provided by the Indian
Penal Code;
(b) a sentence of imprisonment for life, for imprisonment for a term not
exceeding fourteen years or for fine;
(c) a sentence of rigorous imprisonment, for simple imprisonment for any
term to which that person might have been sentenced, or for fine;
(d) a sentence of simple imprisonment, for fine
86 Restriction on powers of remission or Commutation in certain cases:
Notwithstanding anything contained in Section 432, where a sentence of
imprisonment for life is imposed on conviction of a person for an offence for
which death is one of the punishments provided by law, or where a
sentence of death imposed on a person has been commuted under Section
433 into one of imprisonment for life, such person shall not be released
from prison unless he had served at least fourteen years of imprisonment.
rules. The question of remission of the entire sentence or part of it
lies within the exclusive domain of the Government under Section
432 of Code of Criminal Procedure, 1973 and neither Section 57 of
the Indian Penal Code, 1860, nor any rules or local acts can
nullify the effect of the sentence of life imprisonment given by the
court under the penal code. The prisoner cannot be released
automatically on the expiry of 20 years. Section 433(b) of Code of
Criminal Procedure, 1973, empowers a Government to commute
the sentence of life imprisonment after he had served 14 years in
Jail. 87
Also, to mention that Section 427 Code of Criminal Procedure,

1973, provides- when a person already undergoing a sentence for
imprisonment for life is sentenced on a subsequent conviction to
imprisonment for a term of imprisonment for life, the subsequent
sentence shall run concurrently with such previous sentence.
It was held in the case of Ranjit Singh v. Union Territory of

Chandigarh 88the earlier sentence of imprisonment for life being
understood to mean as sentence to serve the remainder of life in
prison unless commuted or remitted by the appropriate authority
and a person having only one life span, the sentence on a
subsequent conviction of imprisonment for a term of
imprisonment for life can only be superimposed to the earlier life
sentence and certainly not added to it since extending the life
span of the offender or for that matter anyone is beyond human
might.
87 Mahak Singh v. State of Uttar Pradesh, AIR 1999 All 274.

88 1991 CriLJ 3354.
Section 428 of the Code of Criminal Procedure, 1973 provides the
benefit of set off in the case of life imprisonment 89. The provision set
off the period of imprisonment already undergone by him as an
under trial prisoner against the term of imprisonment imposed on
him or else the petitioner would be forced to languish in jail despite
completion of his sentence. 90
3.7.3.4 Imprisonment for Life as an Alternative to Death

Sentence
At present there is no sentence that can be awarded higher than

imprisonment for life and lower than death penalty. In USA a higher
punishment called “Imprisonment for life without commutation or
remission” is prescribed. As death penalty is harsh and irreversible
the Supreme Court has held that death penalty should be awarded
only in the rarest of rare cases, the Committee considers that it is
desirable to prescribe a punishment higher than that of
imprisonment for life and lower than death penalty. Section 53 be
suitably amended to include “Imprisonment for life without
commutation or remission” as one of the punishments.
Wherever imprisonment for life is one of the penalties prescribed

under the IPC, the following alternative punishment be added namely
“Imprisonment for life without commutation or remission”. Wherever
punishment of imprisonment for life without commutation or
remission is awarded, the State Governments cannot commute or
89 Section 428 of the Code of Criminal Procedure, 1973 states that, “Where an
accused person has, on conviction, been sentenced to imprisonment for a
term, not being imprisonment in default of payment of fine], the period of
detention, if any, undergone by him during the investigation, inquiry or
trial of the same case and before the date of such conviction, shall be set off
against the term of imprisonment imposed on him on such conviction, and
the liability of such person to undergo imprisonment on such conviction
shall be restricted to the remainder, any, of the term of imprisonment
imposed on him”.
90 Zile Singh v. State GNCT of Delhi on 12 December, 2013.
remit the sentence. Therefore, suitable amendment may be made to
make it clear that the State Governments cannot exercise power of
remission or commutation when sentence of “Imprisonment for life
without remission or commutation” is awarded. This however cannot
affect the Power of Pardon etc., of the President and the Governor
under Articles 72 and 161 respectively. 91
3.7.4 Penal Servitude
Punishment of Penal Servitude has been repealed vide Act XVII of

1949, foreigners for whom it was provided for as a concessional
measure being no longer rulers of the country.
3.7.5 Imprisonment- Simple and Rigorous
The primary objective of the criminal sentence, especially the

sentence of imprisonment, is to reduce the frequency and/or severity
of the harms caused by criminal acts and omissions. The pursuit of
this objective may emphasize any or all of three considerations:
isolating the convicted criminal from the non criminal population,
which will then be protected from any harm he might do; punishing
the convicted prisoner from doing harm by the prospect of the
painful response he may incur if convicted; and rehabilitating the
convicted criminal so that his desire nor need to commit future
crimes will be diminished. Imprisonment involves deprivation of
liberty and is the most onerous and one of the intrusive sentences
available in the code, engaging several rights. Deprivation of liberty
and incarceration in a punitive institution therefore require special
justification. To understand the practical meaning of this custodial
sentence, dependence is on the various provisions for calculating the
proportion of the nominal sentence that the offender will spend in
91 Supra Note 44, pp. 169-175.
custody, on the conditions in which prisoners are held, and on the
terms on which they are later released. 92
Before imposing a custodial sentence, the court must be satisfied,

that the offence was so serious that neither a fine nor a community
sentence can be justified, a formula that requires the court to
dismiss all lesser alternatives before resorting to custody. If it decides
on custody, in determining the length of any sentence, courts are
bound to apply any relevant guidelines and to take due account of
aggravating and mitigating factors and of previous convictions.93
There is now widespread international assent to the principle of
restraint in the use of imprisonment. Resolution VIII of the Eighth
United Nations Congress on the Prevention of Crime and the Treatment
of Offenders states in paragraph 5(e) that ‘imprisonment should be
used as a sanction of last resort’. 94 It is an inferior formulation
because it implies that the custody may justifiably be used for
someone who persistently commits minor offences, and for whom all
other measures have been tried. Brief consideration is given here to
three justifications for the principle of restraint- doubts about the

93 Id, pp. 5-6.
94 The International survey by Dirk Van ZylSmit and FriederDunkel
demonstrates the continuing centrality of imprisonment to the sentencing
policy of most nations: ‘The sentence of imprisonment remains the
backbone of the system of penal sanctions- in spite of repeated
proclamations at international congresses and in the resolutions of the
United Nations and the Council of Europe and other regional bodies that
imprisonment should be seen solely as an ultima ratio. Alternatives to
imprisonment continue in most countries to derive their credibility from the
residual function of imprisonment, which, in as far as the death penalty
has been abolished, is the most serious reaction to conduct that is seen as
particularly dangerous to society or that repeatedly contravenes the law.
This is strikingly demonstrated by the threat of imprisonment being used
as the primary sanction for infringement of conditions of probation or the
failure to pay fine’. Also see, Supra Note 14, pp. 287-288.
reformative potential of custody, doubts about its individual
deterrent effect, and humanitarian concerns 95.
(1) Doubts about the Rehabilitative Potential of Penal Institutions:

in the 1930s Alexander Paterson, declared, ‘it is impossible to
train men for freedom in a condition of captivity’. It is also
argued that a prison can be an ‘expensive way of making bad
people worse’ whether and to what extent the experience of
imprisonment makes offenders worse may be difficult to
establish; but such factors as loss of employment, loss of
housing, loss of contact with family, increased financial
problems and possible deterioration in physical and mental
health must all be taken into account’.
(2) Doubts about Preventive Effects of Custody: Imprisonment

hardly seems a persuasive basis for penal policy, since (a) it is
a short-sighted kind of effectiveness when so many of the
prisoners then reoffend on release (b) it is also short sighted if
there is little possibility of innovative schemes of prisoners,
especially in the context of considerable overcrowding in local
prisons and; (c) the impact of keeping these offenders in prison
is slight in terms of additional security for the ordinary citizen.
(3) Human Rights and Humanitarian Concerns: Custody entails a

deprivation of freedom of movement, which is one of the most
basic rights and often involves considerable ‘hard treatment’.
Loss of liberty takes away the freedom to associate with one’s
family and friends. Insofar as particular prisons do not attain
the minimum standards required internationally, this may be a
reason for reducing the number of people sent to prison and
the length of their sentences.
The aims of imprisonment are imperfect and confuse attempts at

serious and coherent policy making precisely because they contain
ideas of both punishment (the social, expressive function) and crime
control (which is policy-oriented and directed at offending in terms of
its violation of laws). 96 The penalty of imprisonment, by its nature,
spread across the categories of justification in a way that other forms
of punishment do not. An offender who is given a prison sentence
95 Supra Note 14, pp. 288-292.

that is primarily chosen on grounds of retribution will inevitably also
be incapacitated from committing offences during the duration of his
sentence; an optimist might hope that the prison experience and
knowledge of the punishment would act as a deterrent to the
offender and/or others. The confusion of rationales has always
hampered the pursuit of a rational sentencing and imprisonment
policy. It has in the past meant that policy-makers have slid from
one rationale to another. As empirical analysis has undermined
previous justifications; it still means that politicians can lump
together different justifications in a way that confuses serious
analysis; and it has been called a ‘cafeteria’ approach from the menu
of competing rationales to find the justification that most supports
their gut feeling about the sentence they sense to be appropriate.
Great increase in the use of imprisonment has been encouraged and
planned in the last few years on the ostensible basis that it is a
necessary part of an effective crime control strategy, whereas the
truth is that it has been an exercise in retribution that has
demonstrably had little to do with crime control. 97
Imprisonment too was prescribed lavishly with the same object. This
aim of the authors of the Code is to be gathered from their
observations on terms of imprisonment. “We entertain a confident
hope that it will shortly be found practicable greatly to reduce the
terms of imprisonment we propose. Where a good system of
discipline exists, where a criminal without being subject to any cruel
severities, is strictly restrained, regularly employed in labour not of
an attractive kind and deprived of any indulgence not necessary to
health, a year’s confinement will generally prove as efficacious as
confinement for two years in a prison where the superintendence is
lax, where the work undertaken is light, and where the convict finds
means of enjoying as many luxuries as if they were at liberty. As the
intensity of punishment is increased its length may safely be
diminished”. In the same strain they believed that Prison
Commission will prepare such a code of prison discipline as may be
terror to the most hardened wrong doers. It is only then that
contemplated reduction of terms they said, should take place in the
penal code. 98
The Maximum imprisonment that can be awarded for an offence is

fourteen years as per Section 55 and the lowest term actually named
for a given offence is twenty Four hours. As a matter of policy,
minimum terms of imprisonment have not been fixed for offences.
Those have, however been prescribed in the following two cases in
the Indian Penal Code, 1860:
(a) If at the time of committing of Robbery or dacoity, the offender

uses any deadly weapon, or causes grievous hurt to any
person, he is punished with imprisonment of not less than
seven years. (Section 397)
(b) If at the time of attempting to commit robbery or dacoity, the

offender is armed with any deadly weapon he is punished with
imprisonment of not less than seven years. (Section 398)
Punishments permitted upto six months or even upto one year,

which cannot be said to be large in absolute terms, are generally for
technical types of crimes which cannot be strictly said to be of
criminal nature. We cannot say that failure to assist a public servant
or a police officer in fulfilment of latter’s duties is in any way a
criminal act on anybody’s part. For that matter failure of an owner to
give earliest notice to police about the possibility of a riot on his land
does not in itself impute him with any criminal intention required for
liability under Law of Crimes. Such provisions are for administrative
convenience for enforcement of or for efficient procurement of justice
but without any criminal intent with the person sought to be
punished. 99
Law Commissioners in their Second Report of 1847, while giving

summary disposal to opposition against length of imprisonment
terms again referred to pious hope of the authors of the code in this
regard and said “they seem to have anticipated that the terms might
be reduced to about one half, that one year confinement under a
good system would prove as efficacious as confinement for two years
under lax one. 100
The Criminal Law (Amendment) Act, 2013, has introduced changes

where in sexual cases minimum of twenty years of Imprisonment is
prescribed which may extend to imprisonment for life, which shall
mean the remainder of that person’s natural life, or with death.
Certain changes have been introduced in the Code of Criminal
Procedure, 1973 and Evidence Act, like the process of recording the
statement of the victim has been made more victim friendly and easy
but the two critical changes are: 1. the 'character of the victim' is
now rendered totally irrelevant, and 2. there is now a presumption of
'no consent' in a case where sexual intercourse is proved and the
victim states in the court that she did not consent.
The Prison Code as contemplated was prepared in 1890 but the

anticipated and advised fifty percent reduction in terms of
imprisonment has not come about, this aspect having remained
unattended. In the meantime, change in the very objectives of
99 Id, p. 19.
100 Note M. of Second Report on Indian Penal Code. Also see, Supra Note 2, p.
129.
punishment has taken place and consensus now is that we cannot
depend on severity of punishment alone as prevention of crime and
for safety of the society is also to be considered. Deterrence is no
longer accepted as sole objective. Provisions which create terror in
the minds of the wrong doer are not considered to be appropriate for
checking crime. The condition of increasing intensity of punishment
and length as a part 101 of it, embitters the criminal and hardens him
to attack the society with more vigour. It is observed that change of
thinking at the level of Governmental bodies is required. They have
exhibited proneness for reformation in departmental reports as also
referred to in the Parliament. 102 Some enactments too have been
passed for pursuing the path of correcting the offenders. Judiciary
has also veered away from deterrent objectives, majority of the cases
are disposed of by non- imprisonment penalties or by very short
sentences.
3.7.5.1 SimpleImprisonment
In case of simple imprisonment, the offender is confined to jail and is

not put to any kind of work. It was held in the case of State of Gujrat
and Anr. v. Hon’ble High Court of Gujrat 103 that, ‘A person sentenced
to simple imprisonment cannot be required to work unless he
volunteers himself to do the work. But the Jail Officer who requires a
prisoner sentenced to rigorous imprisonment to do hard labour
would be doing so as enjoined by law and mandated by the court’.
Following are the Sections under which the penalty of simple
imprisonment can be levied:
101 TheProbation of Offenders Act, 1958 etc.

102 Indian Jails Committee Report, 1919-20, Report of the Criminals Tribes Act
Enquiry Committee, 1949-50.
103 (1998) 7 SCC 392.
(a) Public Servant unlawfully engaging in trade, or unlawfully
buying or bidding for property (Section 168, 169)
(b) A person absconding to avoid service of summons or other

proceedings from a public servant or preventing service of
summons or other proceedings or preventing publication
thereof; or not attending in obedience to an order from a public
servant (Section 172, 173, 174).
(c) Intentional omission to produce a document to public servant

by a person legally bound to produce such document; or
intentional omission to give notice or information to a public
servant by a person legally bound to give; or intentional
omission to assist a public servant when bound by law to give
assistance (Section 175, 176, 187).
(d) Refusing oath when duly required to take oath by a public

servant; or refusing to answer a public servant authorised to
question or refusing to sign any statement made by a person
himself before a public servant (Section, 178, 179, 180).
(e) Disobedience to an order duly promulgated by a public servant

if such disobedience causes obstruction, annoyance or injury
(Section 188)
(f) Escape from confinement negligently suffered by a public

servant; or negligent omission to apprehend or negligent
sufferance of escape, on the part of a public servant in cases
not otherwise provided for (Section 223, 225A).
(g) Intentional insult or interruption to a public servant sitting in

any stage of a judicial proceedings (Section 228)
(h) Continuance of nuisance after injunction to discontinue

(Section 291)
(i) Wrongful restraint (Section 341)
(j) Defamation (Section 500,501, 502)
(k) Uttering any word or making any sound or gesture with an

intention to insult the modesty of a woman (Section 509)
(l) Misconduct in a public place by drunken person (Section 510)
Class of persons involved in these offences, are usually not
intellectuals. Apart from their having neither the aptitude nor mental
capacity to devote to literary work, nor are there any well equipped
libraries in jails. Therefore, the complete idleness is forced on them
by these terms of simple imprisonment. If one has no literary
aptitude, as the offenders of the type have generally not, then
alternative for him is either to languish in idleness, or engineer
mischief. Former leads to morbid state of mind and the latter creates
problem of prison discipline of authorities. Either of the situations
thus cropping up is most undesirable. The prolonged incarceration,
which ranges up to three years as per provisions, is most likely to
create these results. On the positive side, simple imprisonment has
no merits to present. It involves no initiative or fruitful work in it and
as such cannot add anything to the gain of either the person
concerned or of any bode else. Indian Jails Committee 1918-19
seems to have recognised that simple imprisonment was anomalous.
Mr. Barker, records, “It is putting mildly to say that this (Simple
imprisonment) does no physical or moral good to the prisoner; it is
definitely harmful to him.” 104 If prolonged detention without work
engenders in him, and it is bound to do so, habit of idleness, he will
not be able to work even after discharge, and may prey on others by
continuing crimes he may have learnt inside jail by association with
hardened criminals.
3.7.5.2 Rigorous Imprisonment
In case of Rigorous imprisonment, the offender is put to hard labour

such as grinding corn, digging earth, cutting firewood etc. It was held
104 Barkar, Modern Prison System of India, Macmillan, London, (1994), p. 24.
in the case of, PhoolKumariv. Office of Superintendent Central Jail105
that, ‘while a person sentenced to simple imprisonment has the
option of choosing to work, a person sentenced to rigorous
imprisonment is required by law to undergo hard labour. The
undertrials are not required to work in jail.’ An offender is punished
with rigorous imprisonment without the alternative of simple
imprisonment, in the case of :-
(a) Giving or fabricating false evidence with intent to procure

conviction of an offense which is capital (Section 194)
(b) Unlawful return from transportation (Section 226)
(c) House trespass in order to the commission of an offence

punishable with death (Section 449)
Basis of emergence of rigorous imprisonment was to obtain severity

in punishment and it was recommended to the British Government
by the Jails Enquiry Committee 1836. Authors of the Penal Code and
the Law Commissioners who reviewed the drafted provisions too, as
has been observed from the extracts of their reports quoted earlier,
were wedded to the theory of deterrence and introduced rigorous
imprisonment in provisions of the code. 106 As to rigorous
imprisonment, it is meant to increase severity of punishment and as
such, on principle, the offender must be put to boring, arduous and
tasteless work. The jobs required to be done are invented to be
tiresome rather than productive and are rarely economic. They are
time stuffing, dragged out, do-again, de-energising and demoralising.
These are therefore likely to brutalise him and thereby make him
unfit for the normal society. This unnecessary severity is bound to
embitter him against society and instigate him to prey on society
105 AIR 2012 SC 3198.

with greater vigour after release for taking revenge for treatment
meted out to him. 107
It is also to be noted that putting a prisoner to hard labour while he

is undergoing sentence of rigorous imprisonment awarded to him by
a court of competent jurisdiction cannot be equated with ‘begar’ or
‘other similar forms of forced labour’ and there is no violation of
clause (1) of Article 23 of the Constitution of India. 108Article 23, when
it originally stood, contained the words “except as a punishment for
crime whereof the party shall have been duly convicted” but these
words have since been omitted. It was held in the case of Sunil
Batrav. Delhi Administration 109 states that, ‘punishments of rigorous
imprisonment oblige the inmates to do hard labour, not harsh labour
and so a vindictive officer victimising a prisoner by forcing on him
particularly harsh and degrading jobs violates law’s mandate’.
R.E Knowlton remarks, “the distinction is not recognised in many

places and it does not accord with sound prison administration.
Nothing can be more debilitating than imprisonment without work
and on the other hand, nothing can destroy the possibility of
reformation faster than forced labour or degrading work” 110 We no
longer send an offender to prison for punishment; he is sent there as
punishment.
New out-look demands that the prisoner while in jail is given

physical, mental and spiritual training so that when he comes out he
is fit for settlement in the community. For physical work he is to be
put to work in workshop/field after giving him requisite vocational

108 State of Gujrat v. Hon’ble High Court of Gujrat, AIR, 1998 SC 3164.
109 1980 Cri.L.J 1099 SC.
110 R. E. Knowlton, “Punishment Provisions in the Penal Code”, Burma Law
Journal, 1960, p. 40.
education under qualified and competent expert in the line so that he
can fit industry on coming out of jail. He is to be given literary
education so that he is developed mentally to be able to do things
with foresight. Religious lectures will advance him spiritually so that
he abjures and hates line of crime. Under this set up of things as per
present day approach to the problem of crime, noxious and tiring
labour as is signified by rigorous imprisonment has no place. Nor
does the simple imprisonment fit in. It is therefore essential that
distinction between simple and rigorous imprisonment is removed.
All offenders should be subject to one type of imprisonment which
requires them to work to the extent that they are physically capable.
The objective of this work should not be increasing severity of the
punishment. It should be meant to keep him occupied usefully so
that he is trained for useful work and is disciplined to adopt it after
release. This will have its necessary reformative effect and save him
and society from the scourge of crime in the future. 111
3.7.5.3 Short Term Sentences
The meaning of the phrase ‘short term’ imprisonment needs some

clarification in so far as ‘short’ is a relative conception. What we have
in mind when using the term from the angle of a penologist is
probably too short to achieve the modern objects of imprisonment i.e.
to be of any constructive value. In the Memorandum of Prison
Commission of England and Wales of 1945, it was stressed that in
order to derive full benefit of the training provided at a training
prison, minimum sentence of twelve months would as a rule be
required. Allowing for remission and the inevitable delay arising
through the selection for and transfer to, the training prison, such a
sentence would be sufficient to provide necessary minimum training
of six months. Similarly, in the semi official Report on the
Psychological Treatment of Crime by W. Norwood East, the sentence of
less than six months is regarded as generally insufficient for
psychotherapeutic treatment in prison and sentences between 6 and
12 months are recommended for offenders likely to benefit from such
treatment. 112
Without going more deeply into the matter, one might therefore,
conclude that sentences which do not provide for the offender an
undisturbed period in prison of atleast six months for vocational
and character training, general education and in suitable cases
for therapeutic treatment have to be regarded as too short from
any constructive point of view. Such sentences cannot therefore
be justified, if at all only for the purposes purely of retribution
and deterrence. In conformity with the prevailing tendency in
modern penology we take it for granted that sentences which do
not provide that undisturbed period of at least six months are
harmful. Since under scheme of things proposed hereafter, there
should be no system of automatic remissions but release should
depend on report of Advisory Body, the period of sentence of
imprisonment should be at least nine months. This keeps a
margin of three months required for initial check ups and for
classification of prisoners. Without this, the institutions are
generally unable to do anything constructive for the prisoners
sent there. One of the most important aims of punishment viz.
Rehabilitation cannot be realised during few weeks. The time is
too short for implementing any rehabilitation programme.
112 W. Norwood, Report on the Psychological Treatment of Crime, H.M.

Stationery Off., London, (1939), p. 158.
The prison does in these cases of short termers provide for
unnecessarily contaminating them by contact with habitual and
confirming them thereby into life of crime. The process is further
accelerated by unnecessary stigma which public attaches to one who
has been to prison for whatever time. Pilgrimage to jail even for a day
is sufficient to permanently lower down the person in the estimation
of the society. Henting while discussing short sentences observes as
under:
“These short terms of imprisonment have no important

function; the period is otherwise much too short to allow of an
earnest educative effect or even of only training for a
profession. But this period is also quiet sufficient to infect the
condemned with the seeds of moral contagion and discharge
them into liberty as previously convicted after the
comparatively well equipped buildings and relatively good
treatment have robbed them of their fear of prison”.
Hague Conference of 1951 in their resolution held that short term

imprisonment presents serious inconveniences from a social,
economic and domestic point of view. While accepting appeal in
Tirath Ram v. Emperor, the court observed “to send a youth aged 17
years who is a first offender and commits the offence of criminal
breach of trust being prompted by another person, to the jail is to
put him in the way of becoming a hardened criminal in association in
jail with other criminals. The subordinate courts should therefore
ordinarily avoid passing sentences of imprisonment for short terms
especially on first offenders of immature age”. 113
This short term puts the offender on the life of crime both on account
of learning from association of hardened criminals and removal of
any ideas of grave hardship in jail life. Due to interruption by jail
sentence, he cannot maintain his employment in the society, if at all
113 AIR 1930 Lahore 424.
he is able to get one. This leads to economic trouble which then
starts a vicious circle. Some privation outside makes him jump into
crime without much resistance as fear for prison life has been
removed by his earlier imprisonment. This also in turn is likely to
lead to disruption in domestic life. Under economic strain wife goes
astray and children lose respect for parents and are also released
from their control. This throws them into delinquency.
Bhattacharya, while dealing with overcrowding in prisons records,

“the danger and uselessness of short term imprisonment should be
appreciated”. Short term sentences beyond having nuisance value
accomplish little. Extra pressure is necessarily put on jail population
apart from the fact that reformation is impossible during such a
short period of time, the fear is lost upon this class of prisoners.
Short term sentences should be eliminated as far as possible. In no
case should young people be sent to prison on a short sentence. As
an opportunity of training, short term is useless. It is merely harmful
and cruel. The element of constructive punishment is absent from a
short term prison sentence”. 114
Realising adverse effects on short term sentences, the Government of

India under the British regime framed, Rule No. 102 under the
Criminal Rules of Practice which says, “the Government consider the
awarding of short imprisonment as undesirable and the magistrates
before passing such sentences should consider whether
imprisonment till the rising of court allowed by law could not
appropriately be passed instead, or the provisions of Section 562
Criminal Procedure Code, 1973 applied in favour of the accused
persons”.
114 Bhattacharya, Prisons, S.C. Sarkar & Sons, Calcutta, (1958), p. 42.
Sorting out reasons for it, Indian Jails Committee 1919-20 pointed
out that “there were many sections of IPC under which the
imprisonment had to be awarded when a conviction occurred. These
they considered should be amended so as to give discretion to the
court to award fine or some other form of punishment, the short
sentence continues to be awarded.” In para 21 of the Report, it is
recommended that all possible measures should be taken to avoid
commitments to prison, when any other course can be followed
without prejudice to public interest. Para 444 is very strongly worded
it recommends that sentences of imprisonment for less than 28 days
be entirely prohibited. 115
As to various sections of criminal statutes providing for sentences

less than a year, the same should be substituted by provision of fine
alone. The court may avail of the other substitutes like probation
provided under Probation of Offenders Act, 1958 and of admonition
contemplated under the Criminal Procedure Code.
3.7.5.4 Need to Reduce Long Terms of Imprisonment
The long terms of imprisonment provided for by the code appears to

be infliction of so much needless pain and useless expense entailed
on the Government. The only notion of the punishment the criminal
can now form is that it has been a long separation from his home;
and that idea is as strong, when imprisonment has been ten as when
it has been fourteen years. Mill has very frankly accepted this fact.
He says, “it will not be pretended that any of the knowledge, local or
general, required for the purpose was not possessed by the
commissioners, some of whom had never set foot in India”. 116 By

116 B. S. Sinha, Legal History of India, Central Law Agency, Allahabad,(1976),
p. 197.
Indian conditions being brought to their notice, the commissioners
were pointedly made conscious about over lengthy doses of
punishment they were prescribing. Over deterrent attitude had,
however, grip over their mind, and they side tracked the argument
for reduction by referring to the probability of such action later as
per observations of the authors of the code, “When such a code shall
come into operation, we conceive that it will be advisable greatly to
shorten many of the terms of imprisonment which we have
proposed.” 117
Dr.Hari Singh Gaur, the eminent jurist of India, observes, “No

Civilised country today imposes such heavy sentences as does the
penal code. Heavy sentences have long gone out of fashion in
England and the odour of sanctity and perfection attaching to the
Penal Code should not deter indigenous legislatures to thoroughly
revise the sentences and bring them in conformity with modern
civilised standards”. He further observes, “it is a standing complaint
against the code that it is draconian in its severity as regarding
punishment”. 118
Abu Hasant while observing that the code is now centuries old
records, “The world have moved space and the code itself in
consequence has grown out of date in many parts”. 119
The matter came up before All India Penological Conference 1950.

Shri P. N. Sapru, the eminent jurist observed: “The lapse of time
which has elapsed since Macaulay’s Code was drawn up, it is
necessary that we should review its working and bring it into

118 Hari Singh Gaur, The Penal Law of India, Allahabad Law Publishers,
Allahabad, (1998), p. 330.
119 AbulHasant, Crime and Criminal Justice, Standard Library, Dacca Bengal,
Calcutta, (1939),p. 132.
conformity with the modern ideas. It may be that on an examination
of it we shall find that it is in some places not in conformity with
progressive thought of the age.” 120
Justice Gajendragadkar observed, “it is true that modern criminology

does not encourage the imposition of severe or savage sentences
against criminals, because the deterrent or punitive aspect of
punishment is no longer treated as a valid consideration in the
administration of criminal law. But it must be remembered that
ordinary offences with which the normal criminal law of the country
deals are committed by persons either under the pressure of
provoked and unbalanced emotions or as a result of adverse
environment and circumstances. 121
Beccaria says that the very severity of a punishment leads man to

dare so much the more to escape it, according to the greatness of the
evil in prospect and many crimes are committed to avoid the penalty
of a single one. When punishment provision is high the natural urge
with the offender is to sweep away the evidence of the crime so that
he is not detected and put to punishment. Instead of stopping short
at lower crime, say for stealing away money, he may kill the person
who has seen him stealing or has caught him red handed. Since
such situation cannot be ruled out it will not be a wise policy to keep
the maximum at very high level and thereby take risks which can be
avoided. 122
When the maximum is at a high level the judge is naturally to use

his discretion for deciding individual cases. Unfortunate thing,
however is that no guiding principles have been laid down whereby
120 P. N. Sapru, Proceedings of All India Penological Conference, (1950), p. 85.

121 AIR 1964 SC 1140.
122 Beccaria, On Crimes and Punishment, W.O. Little and Co., Albany, (1872),
p. 43.
this discretion may be exercised. In such circumstances the
possibility of abuse of power cannot be ruled out and the judge may
impose unnecessarily heavy punishment simply because the
maximum laid down in the code enables him to do so. In view of this,
it does not seem advisable to leave wide discretion, especially when
no directives for use thereof have been specified. Articulate
presentation of facts in the file and judgment binds down the hands
of the Appellate courts who are otherwise too, as a matter of policy,
loath to interfere with exercise of discretion by lower courts in the
matter of punishment. 123 The punishment in many cases runs
conveniently by whole number of years. The maximum laid down is
hardly ever approached even, far from anybody contemplating to
outstrip. Just because only maximums have been provided for,
which leave scope for adjustment, is no ground that a relic of the
past must be continued to be worshipped. Severe punishments
belong to barbaric age and we at this stage of our progress should
not stigmatize ourselves by holding on with it in our statute book. It
is necessary, therefore, to review the law so as to reprobation
quantum of punishment in conformity with the current thinking; it is
harmful to stick on with the present provisions just on the ground
that these prescribe only maximum terms which can be allegedly
adjusted for individual cases 124.
3.7.5.5 Need to Introduce Intermediate Punishments In lieu

ofImprisonment
M. Tonry seeks to promote a greater use of ‘intermediate’

punishments in place of imprisonment, and argues that too rigid an
adherence to proportionality will hinder the deployment of such
123 Sutherland and Cressy, Principles of Criminology, Rowman and Littlefield

Publishers, Oxford, (1992), p. 382.
124 Supra Note 2, pp. 71-73.
measures. Intermediate punishments (sanctions such as intensive
probation or supervision, substantial fines and the community
service, which fall between imprisonment and regular probation) are
playing expanding role in penal policy of various nations across the
world. Developed in response to the soaring financial and human
costs of overcrowded prisons, and the perception that traditional
alternatives to imprisonment were insufficiently punitive or
controlling, these new sanctions have yet to find a settled place in
sentencing practice. Their effective use will depend upon sentencers
being willing in appropriate cases to impose intermediate sanctions
on offenders who would otherwise receive a custodial sentence;
without such a willingness, such sanctions will simply widen the net
of penal control.
We must establish ‘interchange ability’ between sentences, and allow

sentencers the discretion to decide whether a custodial or a non
custodial sentence is most appropriate for the individual offender.
Strict adherence to the principle of proportionality, and the
enactment of obligatory sentencing scales which arrange penalties in
a single hierarchy of severity, would be failure for this ideology. If
intermediate punishments are to be used more widely, procedures
and principles governing their use must be developed. Although new
intermediate punishments are often conceived in large part for use in
lieu of incarceration, judges prefer to impose such penalties on
offenders who would not otherwise be bound for prison. Working out
principles governing imposition of penalties in individual cases may
be harder. 125
125M. Tonry, “Proportionality, Parsimony, and Interchangeability of Punishments”,

A Reader on Punishment, Oxford University Press, New York, (1994), p. 133,
136.
In many countries, intermediate punishment programmes have failed
to achieve their objective. Initiated in hopes of reducing prison
crowding, reducing recidivism, and reducing costs, in many
programmes, none of these goals are being realized. When tested,
these programmes generally achieve no worse, but no better,
recidivism rates than do prisons when comparable groups of
offenders are compared. If intermediate punishments are to achieve
their goals, it has become clear that standards are needed both for
assigning offenders to particular penalties and for setting ‘back-up’
penalties for violations of programme conditions. For example,
Washington allows for modest interchange ability of punishments of
punishments (like day-for-day substitution of community service
days for up to thirty days’ confinement). There are however, no well
established models for devising comprehensive systems of structured
sentencing discretion that incorporate intermediate punishments.
Both mechanics and normative rationales need development along
with the attention by the policy makers. 126
If for normative reasons, sentencing guidelines and guidance are to

be scaled proportionally to the severity of the crime, objectively
measured and expressed in standardized units of incarceration,
objectively characterized, the scope for non custodial penalties will
necessarily be slight. It is not easy to devise non custodial penalties
that are objectively equivalent to twenty three months incarceration.
If non custodial penalties are to be widely adopted and used,
proportionality constraints must be loosened to take account of the
almost infinite variety of offender circumstances, offence contexts,
and punishment dimensions. If ways can be devised to
institutionalize principles of both proportionality and parsimony in
126 Id, p. 138.
punishment, we are likely to do less injustice than if we establish
systems that seek an illusion of equality of suffering for offenders in
whose lives equality in most other things has been conspicuously
absent. 127
3.7.6 Solitary Confinement
Solitary confinement can be awarded as a part of rigorous

imprisonment and the offender is shut up alone in a separate cell.
The court can order a portion of rigorous imprisonment to be served
in solitary confinement. Section 73 128 and 74 129 of the Indian Penal
Code, 1860 lay down scales by which it can be prescribed by the
judge. Solitary confinement amounts to keeping the prisoner
thoroughly isolated from any kind of dealing with the outside world
and other inmates. It was held by the court in the case of
SundarLalv. Emperor 130that ordering a person to be kept in solitary
confinement it is necessary that he should be convicted for an
offence. Persons who have been called on to provide security for good
127 Id, p. 158.

128 Section 73 of the Indian Penal Code, 1860 states that, Whenever, any
person is convicted of an offence for which under this Code the Court has
power to sentence him to rigorous imprisonment, the Court may, by its
sentence, order that the offender shall be kept in solitary confinement for
any portion or portions of the imprisonment to which he is sentenced, not
exceeding three months in the whole, according to the following scale, that
is to say-
a time not exceeding one month if the term of imprisonment shall not
exceed six months;
a time not exceeding two months if the term of imprisonment shall exceed
six months and [shall not exceed one] year; a time not exceeding three
months if the term of imprisonment shall exceed one year.
129 Section 74 of the Indian Penal Code, 1860 states that, In executing a
sentence of solitary confinement, such confinement shall in no case exceed
fourteen days at a time, with intervals between the periods of solitary
confinement of not less duration than such periods; and when the
imprisonment awarded shall exceed three months, the solitary confinement
shall not exceed seven days in any one month of the whole imprisonment
awarded, with intervals between the periods of solitary confinement of not
less duration than such periods.
130 AIR 1933 All. 676.
behaviour and having failed and confined to jail cannot be ordered to
be kept in solitary confinement.
Also, it is held in the case of K. Velambalv. State of Tamil Nadu 131and

Perrarivalanv. I.G. od Prisons 132, Madras that, “Prisoners undergoing
sentences of imprisonment were kept in separate cells in whose
cases, only for maintaining the discipline within the prison does not
amount to either solitary confinement or cellular confinement”. The
court has also held in the case of Sunil Batrav. Delhi
Administration 133 that, “the court has to strike a just balance
between the dehumanising prison atmosphere and the preservation
of internal order and discipline the maintenance of institutional
security against escape and the rehabilitation of the prisoner”.
It originated from the Jail experiment at Wymondhamn, England,

started in 1784 by Sir Thomas Beevor to carry out some ideas of
John Howard. Howard is supposed to have been influenced by Papal
Hospice of Saint Michael, which used cellular isolation as means of
penitential reformation for delinquents. Sellincontends that the
concept of cellular segregation for penitence and reflection in cell
belongs to monasteries and to mosaic rule. The cardinal idea was
basis of experiment in Pennsylvania system.
Although in the medieval times, under the influence of

Ecclesiastics it was considered that cellular confinement was a
means of promoting reflection and penitence, it has since come to
be realised that this kind of treatment leads to a morbid state of
mind and not infrequently to mental derangement. Solitary
confinement provides an unusual invitation to self examination
131 (1981) Cri.L.J 1506 Mad.

132 1992 Cri.L.J 3125 Mad(DB).
133 AIR 1980 SC 1579.
and self reproach in solitude. It was considered productive of
earnest introspection and consequently of determination to
reform. By stressing sin and inducing remorse, the system was
supposed to bring about reformation. It may possibly have
chastening effect on normal men but persons to be subjected to it
have debased nature on whom these considerations do not work.
Moreover, it remained out of appreciation that remorse without
understanding cannot bring rehabilitation. Thus, the experience
was initiated on wrong and inadequate premises and has
consequently met with natural failure.
Another ground which developed a little later for adopting this

sentence was that solitary confinement itself would be unusually
deterrent since men crave above all else, association with their
fellows. Solitary confinement being isolation of a prisoner from
human intercourse and society, he will feel oppression and terror in
it by severe pick to his gregarious instinct. Prolonged isolation from
human communion is generally intolerable, but it often leads to
derangement. The prisoner therefore, instead of coming out as a
deterred man and thereby trying, if at all, to avoid crime, loses
control over himself. In this state of uncontrollable mind, he is liable
to commit more frenzy crimes instead of less 134.
It has been observed that regarded as a rational method of

treatment, cellular confinement is curious monument of human
perversity. Havelock Ellis writes:
....that it should have been established shows the ignorance of

criminal nature which existed at the time; that it should still
persist shows the present necessity for a wide-spread popular
knowledge of these matters. It may be possible to learn to ride
on a wooden horse, or to swim on a table, but solitary cell does
not provide even a wooden substitute for the harmonising
influences of honest society. To suppose that cellular
confinement will tend to make a reasonable human being is as
rational as to suppose that it will tend to make him a soldier,
sailor or a clergy. 135
This punishment was provided in the Indian Penal Code by way of

copy from British Statute i.e. Larceny Act. The punishment had died
out in practice even at that time in Britain, though it still existed on
statute book of that country. As already remarked the persons from
whom we borrowed this punishment have been disillusioned with it
and have given it up as long ago in 1893. There is no reason why it
should continue in our Penal Code and thereby give the same stigma
barbarism. Judiciary has not looked upon it with favour and has
seldom pronounced it in any case. When pronounced, High Courts
have generally struck it down considering it undeserved. It is stated
by the Madras High Court in 1947 that, “In fact when the provision
in Section 73 was introduced, there was a similar provision in the
corresponding English Act, but even in those days the power to
impose solitary confinement rarely exercised by a criminal court by
way of a sentence. Even that provision was done away with during
the reign of Queen Victoria. Solitary confinement should not be
ordered unless there are special features appearing in the evidence
such as extreme violence or brutality in the commission of the
offence.”
Thus, the imposition of the sentence of solitary confinement,

although it is legal, should be very rarely exercised by a criminal
court. It should be administered if ever, in most exceptional cases of
unparalleled atrocity or brutality. 136
135 Havelock Ellis, Criminal,Scribner & Welford, New York, (1890), p. 387.
136 SubbaRayadu v. Subbamma, AIR 1947 Mad 386; In Re: Ramanjutu Naidu,
AIR 1947 Mad 381.
Even if we get legislation for penalties as per upto date Penological
thoughts, and the judiciary functions with a motive aimed at those
thoughts, success in mission will not be possible unless functioning
itself is on correct lines. The appropriateness of this trend is to be
judged by its effect on crime. The challenge to effective reconstructive
and rehabilitative work of courts, correctional institutions and other
treatment measures clearly comes from the amount of relapse into
crime as shown by the persons who have been handled by these
agencies. If the programmes that offer opportunities of readjustment
are really allowed functioning to reconstruct the lives of delinquents
and criminals, their effectiveness should be indicated by low
proportion of relapses among the cases handled. Since functioning of
programs depends on time to be spent in jail, the effect of toning
down of punishments should be observable from its reflection on
recidivism. If rate of recidivism goes up, it means that our
experience, apart from other contributory factors, has not succeeded
in stopping them from crime.
3.7.7 Forfeiture of Property
Sentence of forfeiture of whole of the property as laid down under

Section 61 of the Indian Penal Code, 1860, was repealed by the
Indian Penal Code (Amendment) Act, 1921. Section 62 of the Indian
Penal Code, 1860 which provided for Forfeiture of property in respect
of offenders punishable with death, transportation or imprisonment
has been repealed by the Indian Penal Code (Amendment) Act, 1921.
There are only three offenses in which the offender is liable to
forfeiture of specific property such as:
(a) Whoever commits or prepares to commit, depredation on
territories of any power at peace with the Government of India
shall be liable, in addition to other punishments, to forfeiture
of any property used, or intended to be used in committing
such depredation, or acquired thereby (Section126).
(b) Whoever knowingly receives property taken as above

mentioned or by waging war against any Asiatic power at peace
with the Government of India shall forfeit such property
(Section 127)
(c) A public servant who improperly purchases property which by

virtue of his office he is legally prohibited from purchasing,
forfeits such property (Section 169).
3.7.8 Fine
In note ‘A’ appended to Draft Penal Code, while discussing non-

payment of fine, Law Commissioners expressed this objective and
observed, “The object of penal law is to deter commission of offences,
and this can only be done by means of infliction disagreeable to
offenders”.
Fine is the only punishment in the following cases:-
(a) A person in charge of a merchant vessel, negligently allowing a

deserter from the Army, or Navy or Air Force to obtain
concealment in such vessel, is liable to a fine not exceeding Rs
500/- (Section 137)
(b) The owner or occupier of land on which a riot is committed or

an unlawful assembly is held, and any person having or
claiming any interest in such land, and not using all lawful
means to prevent such riot or unlawful assembly is punishable
with a fine not exceeding Rs. 1,000/- (Section 154)
(c) The person for whose benefit a riot has been committed not
having duly endeavoured to prevent it. (Section 155)
(d) The agent or manager of such person under like circumstances

(Section 156)
(e) False statement in connection with an election (Section 171G)
(f) Illegal payment in connection with an election (Section 171H)
(g) Failure to keep election Accounts (Section 171 I)
(h) Committing a public nuisance not otherwise punishable, is

punishable with a fine not exceeding Rs 200/- (Section 290)
(i) Voluntarily vitiating the atmosphere so as to render it noxious

to the public health, is punishable with a fine of Rs. 500/-
(Section 278)
(j) Obstructing a public way or line of navigation, is punishable

with a fine not exceeding Rs. 200/- (Section 283)
(k) Publication of a proposal regarding a lottery, punishable with a

fine not exceeding Rs. 1000/- (Section 294 A)
Its only in three Sections that is 155 137,156 138 and 171G 139 that
amount of fine is unlimited in other cases the maximum has been
fixed. Fine is additional or alternative punishment in case of large
number of offenses punishable with imprisonment and death. In
case of non payment of fine, the courts can direct the offender to be
imprisoned up to one fourth of the terms of imprisonment which is
137 Section 155 of the Indian Penal Code, 1860 states that, Whenever a riot is
committed for the benefit or on behalf of any person who is the owner or
occupier of any land, respecting which such riot takes place or who claims
any interest in such land, or in the subject of any dispute which gave rise
to the riot, or who has accepted or derived any benefit there from, such
person shall be punishable with fine, if he or his agent or manager, having
reason to believe that such riot was likely to be committed or that the
unlawful assembly by which such riot was committed was likely to be held,
shall not respectively use all lawful means in his or their power to prevent
such assembly or riot from taking place, and for suppressing and
dispersing the same.
138 Section 156 of the Indian Penal Code, 1860 states that, Whoever, harbors,
receives or assembles, in any house or premises in his occupation or
charge, or under his control any persons, knowing that such persons have
been hired, engaged or employed, or are about to be hired, engaged or
employed, to join or become members of an unlawful assembly, shall be
punished with imprisonment of either description for a term which may
extend to six months, or with fine, or with both
139 Section 171 G of the Indian Penal Code, 1860 states that, Whoever, with
intent to affect the result of an election makes or publishes any statement
purporting to be a statement of fact which is false and which he either
knows or believes to be false or does not believe to be true, in relation to the
personal character or conduct of any candidate shall be punished with fine.
the maximum fixed for the offence, if the offence is punishable with
imprisonment as well as fine. If the offence is punishable with fine
only, imprisonment in default of payment of fine is to be simple and
can be up to two months when the amount of fine does not exceed
Rs 50/- up to four months when fine does not exceed Rs100/- and
upto six months in any other case. 140
Indian Jails Committee 1991-1920 recommended in para 21 of their

Report that all possible measures should be taken to avoid
commitment to prison when any other course can be followed
without prejudice to public interest. For fines, the Framers of the
Indian Penal Code say, “Fine is the most common punishment in
every part of the world and it is a punishment, the advantages of
which are so great and obvious that we propose to authorize the
court to inflict it in every case”. 141 Bentham advocates the fines and
recounts the following advantages for them:
1. It has the striking advantage of being convertible to profit.
2. It implies no infamy for the offender.
3. It can be regulated according to the means of the offender.
4. It is remissible so that complete reparation can be made for

unjust sentence.
5. It is a popular penalty.
The loss of money in the shape of fine causes privation and thereby
makes one realize one's folly and the necessity of keeping away from
crime. Of course, this sensibility varies with the economic position of
the man. If he has more money, it is higher amount of fine which
achieves the objective of stopping him from crime. On the other
140 Sections 64-67 of the Indian Penal Code, 1860.

141 Note A appended to Second Report of the Law Commissioners on Draft
Penal Code, p. 97.
hand, if he is a man of limited means, even smaller amount of fine is
enough for his becoming cautious to avoid the track of crime. The
nature of man, apart from his economic position, has also a part to
play in render the fine efficacious. Imposition of fine on such a
person immediately checks his propensity for crime.
The Law Commission on the Indian Penal Code were so much

attracted by the efficacy of fine that in discussion in another context
they remark: “We are satisfied that if offenders are allowed to choose
between imprisonment and fine, fine will lose almost its whole
efficacy, and will never be inflicted on those who dread it most. We
therefore propose that the imprisonment which an offender has
undergone shall not release him from the pecuniary obligation under
which he lies.” It is for this reason that fine has been prescribed as
penalty, whether exclusive alternative or additional, for almost every
offence, in the Indian Penal Code. The fine occupies the same
important position in the Special and Local Laws also. In a few
offences punishable exclusively with fine and a large number of cases
where it is alternated with or is additional to imprisonment, the
amount of fine is unlimited. It has, of late come to occupy still
greater importance as a substitute of short term imprisonments.
Hermann Mannheim says that ever since fight against short

sentences of imprisonment, fine has regarded as one of the most
important weapons. At the Hague Congress, 1951, while saying that
short term imprisonment presents serious inconveniences from a
social, economic and domestic point of view, it was resolved that
fines are quite properly suggested as a suitable substitute for short
prison terms. Similarly, Indian Jails Committee, 1991-1920 feeling
fed up with the practice of magistrates awarding short sentences,
emphasized that fines should to a large extent replace short terms.
There is no doubt that determination of quantum of fine is not
always easy. It varies subjectively according to variable criterion; the
convicted sensibility in terms of the money he possesses. But fixing
of too small fines as a matter of routine for majority of the cases
shows that the said reconciliation is not bothered about and there is
no endeavour to take benefit of the real merits of fine as a
punishment. In order to avoid resultant ill-effect on the law itself, it
is necessary that more attention may be devoted while imposing
fines.
Its importance is in the fact that non-payment results in

imprisonment. Section 64 authorizes the court which sentences an
offender to fine to direct by the sentence that, in default of the
payment of fine, the offender shall suffer imprisonment for a certain
terms. Scales of imprisonment have been laid down in section 65, 66
and 67 IPC. If the offence is punishable with imprisonment as well as
fine, the term of imprisonment in default of payment of fine shall be
up to 1/4th of the maximum fixed for the offence. In case the offence
is punishable only with fine, the imprisonment shall be up to two
months against fine up to Rs.50/- and up to four months against
fine up to Rs.100/- and up to six months in any other case.
The difficulty with fine is its problem of dealing with defaulters,

not on account of the money unpaid but on account of the
obligation under the law to resort to punishment which was
initially not considered appropriate. Furthermore, the existing
system of imprisonment in default of payment of fine in India is
automatic. Section 64 IPC as already observed authorizes the
court to prescribe the punishment for default by the very
judgment which fixes the original sentence of fine. It will be noted
that Section 64 says that the court is competent to do so; it does
not make it obligatory that this needs must necessarily be done in
the primary judgment itself. It is to botheration of fresh
proceedings that this practice is being adopted as a matter of
routine. The result is that without any rethinking about
circumstances of the offender the defaulter is put behind the
bars. This practice is defective in so far as the proclaimed
objective and propriety, basing whereon the fine was preferred to
imprisonment stands defeated. When imprisonment was not
considered proper for the man concerned in the first instance how
does it become appropriate after default, especially when process
of the change about type of punishment is automatic and court
does not allow to itself second opportunity of thinking about the
matter?
Mannheim while advocating fine as substitute to short terms

imprisonment says 'To achieve its object, however, it has to be
backed by suitable legal provisions and court should avoid, wherever
possible, imprisonment for non-payment of fine: Hague Congress of
1951 deprecating this automatic conversion resolved, “Un-paid fines
should be converted into imprisonment not automatically but by a
court decision in each individual case”. The court should first pass
orders for payment of fine alone where other forms of punishment
are not considered suitable by it and suitable amendment should be
made in Section 64 IPC for making it obligatory for the court to follow
this course. In case the offender cannot pay, he may be allowed the
facility of paying by instalments.
In spite of all these provisions, there may be some hard cases where
fine is not paid. Only if we go back to the power of working which the
majority of the offenders, possess by engaging them on work outside
prisons will the idea of non-payment disappear, will a mild form of
punishment cease to be transmuted into a severe one, which is
indeed only supposed to enforce payment and, if it does not work,
only causes the state expense: there will disappear from the world
the unbearable fine is first inflicted, then because it is not paid,
transmute into imprisonment and then imprisonment in turn does
not succeed in realisation of fine because the convict with the best
will in the world, was unable to pay.
Indian Jails Committee 1991-20 favours this alternative when it says

that if the offender is an adult without means to pay he should be
given forced labour for such period as will earn the fine.
Bhattacharya, in his book “Prison” also advocates that in case of
default in payment of fine may be put to compulsory work outside on
public projects like dams, road or rural reconstruction. It should not
be necessary to send the person to prison for forcing him to work. It
should be arranged in such a way that it is done in leisure time of
the convict. If a cultivator is involved he should be required to work
in off season. If any other person is concerned, he should be allowed
to carry on with normal work and family responsibilities and the
work in lieu of fine may be taken mornings, evenings and on public
holidays. Such a scheme will not dispute his regular employment
and thereby create other complications which may ultimately again
throw him into the arms of crime. Another benefit, which is very
important from punitive angle, will be that spread of work on longer
period, though of small duration at a time, will keep him conscious
about ill-bargain of crime for long and this will discourage his mental
approach for crime.
The court at the time of passing the sentence will check up from the
offender whether he will pay the fine or do above said work. If he
shows his inability to pay and consents to work, court will
straightway record judgment accordingly giving the number of hours
for work. Such convict will be required to report to a coordinating
office which is liaison with municipal and others body will prepare
the work plan. The convict is given time and date for work and he is
picked up along with other similar convicts from his residence and
conveyed to the site of work. The public body concerned will remit
remuneration for work to the fine account through the co-ordinating
office. The scheme should not be unmanageable as only a small
office with a conveyance at its disposal will be able to deal with
limited number of offenders who will be covered by the operation.
This in turn will have the healthier effect of making them more
hardworking and responsible towards their future. Now however,
Probation of Offenders Act has come into force and regular agency
has been set up under it. Healthy effects of probation, if properly
used on the basis of individualization of offenders under properly
trained hands are too well known to be recapitulated here. This new
instrument of dealing with the offenders especially new entrants in
crime adds to existing operative modes of dealing with the offenders.
The court is no longer under a necessity to limit its choice between
fine and imprisonment and rely on the former as the latter is
considered too much or too much harsh for a particular days. They
can now rationalize sentencing of the offenders with this widened
choice of punishments. Probation is technically not a declared
punishment but in substance it is so. A prolonged period of living
under supervision is sufficient curtailment of liberty to be treated as
punishment though of a lighter type. Probation therefore provides an
intermediate stage between imprisonment and fine. Its proper and
oftener use can go a long way in improving our system of
administration of punishment and also reduce the problem of
imprisonment for non payment of fine. 142
3.7.8.1 Need for Reforms and Revisions of Fines
So far as sentences of fine are concerned, time has come to have a

fresh look on the amounts of fine mentioned in the IPC and the mode
of recovery. As the law stands we have two classes of offences for
which only fine can be imposed. Then there are offences for which
fine can be imposed in addition to imprisonment. Further for non-
payment of fine, imprisonment is also provided. So far as
imprisonment in case of default of payment of fine is concerned it is
time that the same is done away with. In view of the acceptance that
custodial sentences are only to be imposed in grave crimes there are
many areas where correctional approach or community sentences
etc., will have the desired effect.
Section 64 143 of the IPC should be amended and Section 65144 which
says that where in addition to imprisonment, fine is imposed as also
punishment in default of the payment of fine imprisonment shall not
exceed 1/4th of the sentence that may be fixed should also be
142 Supra Note 2, pp. 200-217.

143 Section 64 of the Indian Penal Code, 1860 states that, in every case, of an
offence punishable with imprisonment as well as fine, in which the offender
is sentenced to a fine, whether with or without imprisonment, and in every
case of an offence punishable [with imprisonment or fine, or] with fine only,
in which the offender is sentenced to a fine,]
it shall be competent to the Court which sentences such offender to direct
by the sentence that, in default of payment of the fine, the offender shall
suffer imprisonment for a certain term, which imprisonment shall be in
excess of any other imprisonment to which he may have been sentenced or
to which he may be liable under a commutation of a sentence.
144 Section 65 of the Indian Penal Code, 1860 states that, the term for which
the Court directs the offender to be imprisoned in default of payment of a
fine shall not exceed one-fourth of the term of imprisonment which is the
maximum fixed for the offence, if the offence be punishable with
imprisonment as well as fine
deleted. Section 66 145, 67 146, 68 147 and 69 148 of the IPC should be
amended and in all these provisions community services for specified
periods should be prescribed.
The amount of fine as fixed in 1860 has not at all been revised. We
live in an age of galloping inflation. Money value has gone down.
Incomes have increased and crime has become low risk and high
return adventure particularly in matters relating to economic
offences and offences like misappropriation, breach of trust and
cheating. For all matters involving money or money related crimes
new legislations have also created offences, a case in point is Section
138 149 of the Negotiable Instruments Act, 1881 where huge sums of
145 Section 66 of the Indian Penal Code, 1860 states that, he imprisonment
which the Court imposes in default of payment of a fine may be of any
description to which the offender might have been sentenced for the
offence.
146 Section 67 of the Indian Penal Code, 1860 states that, If the offence be
punishable with fine only, [the imprisonment which the Court imposes in
default of payment of the fine shall be simple, and] the term for which the
Court directs the offender to be imprisoned, in default of payment of fine,
shall not exceed tile following scale, that is to say, for any term not
exceeding two months when the amount of the fine shall not exceed fifty
rupees, and for any term not exceeding four months when the amount shall
not exceed one hundred rupees, and for any term not exceeding six months
in any other case
147 Section 68 of the Indian Penal Code, 1860 states that, the imprisonment
which is imposed in default of payment of a fine shall terminate whenever
that fine is either paid or levied by process of law.
148 Section 69 of the Indian Penal Code, 1860 states that, If, before the
expiration of the term of imprisonment fixed in default of payment, such a
proportion of the fine be paid or levied that the term of imprisonment
suffered in default of payment is not less than proportional to the part of
the fine still unpaid, the imprisonment shall terminate.
149 Section 138 of the Negotiable Instruments Act, 1881 states that, Where any
cheque drawn by a person on an account maintained by him with a banker
for payment of any amount of money to another person from out of that
account for the discharge, in whole or in part, of any debt or other liability,
is returned by the bank unpaid, either because of the amount of money
standing to the credit of that account is insufficient to honor the cheque or
that it exceeds the amount arranged to be paid from that account by an
agreement made with that bank, such person shall be deemed to have
committed an offence and shall, without prejudice to any other provisions
of this Act, be punished with imprisonment for [a term which may be
extended to two years], or with fine which may extend to twice the amount
money are involved, fine extending to twice the cheque amount can
be imposed/levied. In matters of sentence of fine it is not desirable
that the paying capacity of the rich criminal and that of the poor is
taken into account.
Further it is universally accepted that victims rights should not be

ignored for the victim, he or she, pays a heavy price. Therefore from
out of the fine imposed victim, is also to be compensated. Another
aspect is the cost of living has to be taken into account. The
provisions of Minimum Wages Act, 1948 are applicable to many wage
earners. Therefore in the organised sector or even in un-organised
sector wages have gone up and then even the earning capacity of
individuals has increased. Hence time has come when attention
should be focussed on increasing the amount of fine in many cases.
There are certain sections where Penal Code authorises the
imposition of fine but the amount of fine is not mentioned. In such
cases Section 63 of the IPC says where the sum is not indicated then
the amount of fine may be unlimited but should not be excessive.
When a fine is imposed and is not paid the court can prescribe
default sentence of imprisonment. This may act harshly in some
cases of genuine incapacity to pay. Therefore, the Committee
suggests that community service may be prescribed as an alternative
of the cheque, or with both: Provided that nothing contained in this section
shall apply unless—
(a) the cheque has been presented to the bank within a period of six
months from the date on which it is drawn or within the period of its
validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be,
makes a demand for the payment of the said amount of money by giving
a notice in writing, to the drawer of the cheque, [within thirty days] of
the receipt of information by him from the bank regarding the return of
the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said
amount of money to the payee or, as the case may be, to the holder in
due course of the cheque, within fifteen days of the receipt of the said
notice.
to default sentence. In view of the circumstances enumerated the
fine amounts should be revised. Time has come when the amount of
fine statutorily fixed under the Penal Code also should be revised by
reasonable times. 150
3.7.9 Punishment of Habitual Offenders
Section 75 makes a provision for enhanced punishment. Under this

section when a person has been convicted once by a court of an
offence punishable under Chapter XII or Chapter XVII of the Indian
Penal Code, 1860 with imprisonment of either description for a term
of three years or upwards and subsequently he is guilty of any
offence punishable under Chapter XII or Chapter XVII of the penal
code with imprisonment of either description for a term of three years
or upwards may be sentenced for every such subsequent offence to
imprisonment for life or to imprisonment of either description for a
term which may extend to 10 years.
Section 75 of the Indian Penal Code, 1860 provides for enhanced

punishment of life imprisonment, or upto ten years, if an offender,
who has already been convicted of an offence punishable under
chapter-XII or chapter XVII of the code with imprisonment for a
terms of three years or upwards, is again found guilty of any offence
punishable under either of those chapters for like terms of
imprisonment. It showed that judges had generally not paid any
regard to the fact of recidivism in the matter of fixation of quantum of
punishment. Nature of the offence alone and not the previous
standing of the offender in criminal career concerns the judges. It
may be pointed out that Section 75 provides for enhanced
punishment for repetition of offences pertaining to property and the
150 Supra Note 44, pp. 175-178.
High Courts have laid great emphasis on value of the property
involved in the last crime. In Re Munnuswamy 151 it has been held
that although the fact of previous convictions is an element in
determining the sentence, essential regard should be had to the facts
of the case, the gravity of the offence and the circumstances in which
it was committed. In assessing the punishment and the mere
circumstance that there were previous convictions should not result
in the infliction of a sentence i.e. far out of proportion to the merits of
the case.
We may be able to ignore those who have committed offence once or

twice. May be that they do not seek to live by crime and momentary
weakness made them commit the crime. However, those who are
being convicted and put behind the bars for third, fourth or fifth time
cannot be taken lightly. Their conduct of repeated indulgence in
crime shows that they have adopted crime career and do not want to
live by honest means. They are either not prepared or are incapable
of following a disciplined life which requires living by hard work and
by shouldering responsibilities of family. Prison experience as per
existing practice has not been helpful in diverting them from their
bad livelihood, and sending them off and on to prisons with a view to
punish for the particular offence committed, is a mere wastage of
energies of police, judiciary, and prison authorities, apart from
unnecessary load on Government Exchequer. They come out of jail
and again prey upon public. If they have to come to jail again and
again, why not keep them away from society permanently and save
the public from their consent depredations and hallucination? It
appears inefficient to base punishment of persistent offender on the
objective criterion i.e. on the gravity of his last offence alone.
151 AIR 1947 Mad. 386.
Subjective criterion i.e. degree of probability of committing further
crimes, as inferred from his personality and criminal record should
be adopted. This point of view was expressed in England in the
following words by the Gladstone Committee 1895, “To punish them
for the particular offence in which they are detected is almost
useless- the real offence in the wilful persistence in the deliberately
acquired habit of crime. We venture to offer the opinion formed
during the inquiry that a new form of sentence should be placed at
the disposal of the judges, by which those offenders might be
segregated for long periods of detention” 152.
Before we proceed further, a distinction needs being drawn between

various types of habituals. Dr.D.J.West classifies them into three
categories according to their mental plane, firstly, non-deviants who
have no mental illness and constitute the so-called socialized
delinquents and are well adjusted to a criminal milieu. Such men
trend towards the professional type of crime; secondly, active
aggressive deviants who are actively predatory in their attitude and
habits and tend to show, to a marked degree, the psychopathic
qualities; thirdly, passive inadequate deviants consisting of
ineffective, feckless people, conspicuously lacking in drive but prone
to dependency and parasitism. The second group requires
psychiatric treatment and leaving them only incarcerated in prison
without attention for their cure cannot make us free of them. Their
lace is in hospital with necessary security arrangements. 153
It does not appear reasonable that mere number of prior convictions

should be the decidratum. If there is a substantial time lag between
the last conviction and the one in the hand of the court and there is
152 Supra Note 2, pp. 190-193.

153 D. J. West, Crime and Personality, University of Cambridge, Cambridge,
(1962), p. 104.
evidence of offenders honest living during this time, it shows that the
man means to and has been able to keep away from crime.
Accordingly, for the purpose of being defined habitual offender the
criminal should have got three convictions on different occasions for
substantive terms of imprisonment within a period of five years,
release from imprisonment for the last one being not more than one
year old on the date of commission of present offence.
Suggestions: With these constituents as part of the definition, it may

be added as an explanation under Section 75 154, and the section
itself may be suitably amended by adding a proviso that the court
shall commit habitual offenders to penal colonies for life on his
conviction for the fourth time for offences carrying substantive term
of imprisonment. The section will also be suitably amended to
become applicable to offences under Sections 215 155, 489-A 156, 489-
154 Section 75 of the Indian Penal Code, 1860 states that, whoever, having been
convicted:
(a) by a court in [India], of an offence punishable under Chapter XII or
Chapter XVII of this Code with imprisonment of either description for a
term of three years or upwards, shall be guilty of any offence punishable
under either of those Chapters with like imprisonment for the like term,
shall be subject for every such subsequent offence to [imprisonment for
life], or to imprisonment of either description for a term which may extend
to ten years.]
155 Section 215 of the Indian Penal Code, 1860 states that, Whoever takes or
agrees or consents to take any gratification under pretence or on account of
helping any person to recover any movable property of which he shall have
been deprived by any offence punishable under this Code, shall, unless he
uses all means in his power to cause the offender to be apprehended and
convicted of the offence, be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with
both.
156 Section 489-A of the Indian Penal Code, 1860 states that, Whoever,
counterfeits, or knowingly performs any part of the process of
counterfeiting, any currency-note or bank-note, shall be punished with
[imprisonment for life], or with imprisonment of either description for a
term which may extend to ten years, and shall also be liable to fine.
B 157, 489 C 158 and 489 D 159 and under chapter XVI, besides those
under chapters XII and XVII as at present.
3.7.10 Abolition of the Punishment of Whipping
Whipping as a form of punishment added subsequently by Whipping

Act, 1909 has also been abrogated. 160 It is pertinent to mention that
the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (the “Torture Convention”) was
adopted by the General Assembly of the United Nations on 10
December 1984. he term "torture" means any act by which severe
pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him or a
third person information or a confession, punishing him for an act
he or a third person has committed or is suspected of having
committed, or intimidating or coercing him or a third person, or for
any reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the consent or
157 Section 489-B of the Indian Penal Code, 1860 states that, Whoever, sells to,
or buys or receives from, any other person, or otherwise traffics in or uses
as genuine, any forged or counterfeit currency-note or bank-note, knowing
or having reason to believe the same to be forged or counterfeit, shall be
punished with [imprisonment for life], or with imprisonment of either
description for a term which may extend to ten years, and shall also be
liable to fine.]
158 Section 489-C of the Indian Penal Code, 1860 states that, Whoever has in
his possession any forged or counterfeit currency-note or bank-note,
knowing or having reason to believe the same to be forged or counterfeit
and intending to use the same as genuine or that it may be used as
genuine, shall be punished with imprisonment of either description for a
term which may extend to seven years, or with fine, or with both.]
159 Section 489-D of the Indian Penal Code, 1860 states that, Whoever, makes,
or performs, any part of the process of making, or buys or sells or disposes
of, or has in his possession, any machinery, instrument or material for the
purpose of being. used, or knowing or having reason to believe that it is
intended to be used, for forging or counterfeiting any currency-note or
bank-note, shall be punished with [imprisonment for life], or with
imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine.]
160 Supra Note 2, pp. 1-3.
acquiescence of a public official or other person acting in an official
capacity. It does not include pain or suffering arising only from,
inherent in or incidental to lawful sanctions. Each State Party shall
take effective legislative, administrative, judicial or other measures to
prevent acts of torture in any territory under its jurisdiction. No
exceptional circumstances whatsoever, whether a state of war or a
threat of war, internal political instability or any other public
emergency, may be invoked as a justification of torture 161.
3.7.11 Proposed Forms of Punishment
The Indian Penal Code (Amendment) Bill, 1978 proposed to add

Community Service (Section 74 A), Compensation to victims of crime
(Section 74 B), Public Censure (Section 74 C) and Disqualification
from holding Public Office and Contest Elections (Section 74 D).
• Community Service: community service or corrective labour is a

form of punishment in which the convict is not deprived of his
liberty. A corrective sentence is served either at the place of
accused’s ordinary work place, or in a special corrective labour
institution in the locality where the accused is domiciled.
Corrective labour is the standard penalty given in those cases
where it is considered that the accused need not be isolated
from the society. The accused is paid emoluments for the work
after adjusting a part of the amount towards establishment
and maintenance cost etc. The period ranges between one
month to one year in such cases. An important feature of this
type of punishment is that the accused is not deprived of his
liberty and he may go home after the day’s work.
• Compensation to Victims of Crime: Recently, the Code of

Criminal Procedure, 1973, in Section 357 has empowered the
court to award compensation to the victims of crime in very
limited cases at the time of passing, judgment. The apex court
in the case of Swaran Singh v. State of Punjab 162, and State of
161 Retrieved from <http://www.un.org/documents/ga/res/39/a39r046.htm>

last visited on 19th April, 2017 at 19:59 IST.
162 AIR 1978 SC 1525.
Haryana v. Sukhbir Singh 163, recommended to all courts to
exercise this power of grant of compensation under Section
357 of Code of Criminal Procedure, 1973, liberally and said
that, “This power of Court to award compensation is not
ancillary to other sentences, but it is in addition thereto”.
• Public Censure: Public censure or social censure is one of the

methods of punishment prescribed in some of the countries,
such as Russia, Colombia etc., in respect of certain offences of
anti-social nature, such as white collar crimes, tax crimes,
food adulteration, etc. It is believed that such a punishment
will have more deterrent effect on the individuals in view of
social stigma attached due to publication of names of persons
involved in such crimes. The Law Commission of India in its
42nd Report on Indian Penal Code has suggested ‘Public
Censure’ as one of the modes of punishment in respect of
certain class of offences prescribed under the Indian Penal
Code.
• Disqualification from Holding Public Office and Contest

Elections: Disqualification to hold public office and to contest
an election of legislature and local bodies as a form of
punishment will have the adequate and desired deterrent
sanction, if sincerely implemented. Sub Section (3) of Section 8
of the Representation of the People Act, 1951, disqualifies a
person convicted for a period of two years or more to contest
an election for period of six years. 164 But the provisions are
very limited in scope and are being abused with impunity. It is
high time that, ‘disqualification from holding office’ as
proposed under Section 74D, Indian Penal Code Amendment
Bill, 1978 is added in Section 53 A, of Indian Penal Code, 1860.
3.7.12 Over Elaboration of the Code
One of the main things observed is that Penal Code suffers from
over-elaboration and its harmful effect is that it hinders
individualization of punishment. This elaboration is also in a way
individualization of punishment but by reference to acts and not by
reference to the personality and circumstances of the offender. Sir
Hari Singh Gaur observes in his ‘Penal Law of India’ that though the
163 AIR 1988 SC 2131.

164 B.R. Kapurv. State of Tamil Nadu, 2001(7) Supreme 1: AIR 2001 SC 3435.
principal offences found to have been dealt with in code would not
exceed 25 or 30 in number, the penal sections would number no less
than 366. For example, in the chapter on public tranquility we find
that Sections 152 165 is needless and superfluous as its objective is
fully covered by Sections 332 166 and 352 167. There is nothing to
justify its existence in this chapter. Section 153 168 is so worded that
it is difficult to bring home the offence and in consequence no
prosecution under it has come to notice. Same is the position of
165 Section 152 of the Indian Penal Code, 1860 states that, Whoever assaults or
threatens to assault, or obstructs or attempts to obstruct, any public
servant in the discharge of his duty as such public servant, in endeavoring
to disperse an unlawful assembly, or to suppress a riot or affray, or uses, or
threatens, or attempts to use criminal force to such public servant, shall be
extend to three years, or with fine, or with both.
166 Section 332 of the Indian Penal Code, 1860 states that, Whoever voluntarily
causes hurt to any person being a public servant in the discharge of his
duty as such public servant, or with intent to prevent or deter that person
or any other public servant from discharging his duty as such public
servant, or in consequence of anything done or attempted to be done by
that person in the lawful discharge of his duty as such public servant, shall
be punished with imprisonment of either description for a term which may
extend to three years, or with fine, or with both.
167 Section 352 of the Indian Penal Code, 1860 states that, Whoever, assaults
or uses criminal force to any person otherwise than on grave and sudden
provocation given by that person, shall be punished with imprisonment of
either description for a term which may extend to three months, or with
fine which may extend to five hundred rupees, or with both.
Explanation- Grave and sudden provocation will not mitigate the
punishment for an offence under this section. if the provocation is sought
or voluntarily provoked by the offender as an excuse for the offence, or
if the provocation is given by anything done in obedience to the law, or by a
public servant, in the lawful exercise of the powers of such public servant,
or
if the provocation is given by anything done in the lawful exercise of the
right of private defense.
Whether the provocation was grave and sudden enough to mitigate the
offence, is a question of fact.
168 Section 153 of the Indian Penal Code, 1860 states that,Whoever
malignantly, or wantonly, by doing anything which is illegal, gives
provocation to any person intending or knowing it to be likely that such
provocation will cause the offence of rioting to be committed, shall, if the
offence of rioting be committed in consequence of such provocation, be
extend to one year, or with fine, or with both; and if the offence of rioting be
not committed, with imprisonment of either description for a term which
may extend to six months, or with fine, or with both.
Section 157 169 and 158 170 which have seldom been used. Many of
the sections have been added only by imagining the original offences
to be attended with some aggravating circumstances. Section 148171
could be washed away by enhancing, if at all, punishment in Section
147 172. After all being armed with a deadly weapon is only an
aggravating circumstance like whereof there are so many. 173
3.7.13 Restorative Justice
In addition to the classic justifications of punishment set out above

there is the alternative approach that offenders should compensate
their victims and/or wider society for the wrong they have done. That
principle is represented in our law by compensation orders, which
require the offender to make a payment to the victim or his family,
169 Section 157 of the Indian Penal Code, 1860 states that, Whoever, harbors,
receives or assembles, in any house or premises in his occupation or
charge, or under his control any persons, knowing that such persons have
been hired, engaged or employed, or are about to be hired, engaged or
employed, to join or become members of an unlawful assembly, shall be
extend to six months, or with fine, or with both.
170 Section 158 of the Indian Penal Code, 1860 states that,Whoever is engaged,
or hired, or offers or attempts to be hired or engaged, to do or assist in
doing any of the acts specified in Section 141, shall be punished with
imprisonment of either description for a term which may extend to six
months, or with fine, or with both, or to go armed- and whoever, being so
engaged or hired as aforesaid, goes armed or engages or offers to go armed,
with any deadly weapon or with anything which used as a weapon of
offence is likely to cause death, shall be punished with imprisonment of
either description for a term which may extend to two years, or with fine, or
with both.
171 Section 148 of the Indian Penal Code, 1860 states that,Whoever, is guilty of
rioting, being armed with a deadly weapon or with anything which, used as
a weapon of offence, is likely to cause death, shall be punished with
imprisonment of either description for a term which may extend to three
years, or with fine, or with both.
172 Section 147 of the Indian Penal Code, 1860 states that, Whoever, is guilty of
rioting, shall be punished with imprisonment of either description for a
term which may extend to two years, or with fine, or with both.
173 Supra Note 2, pp. 74-76.
and which courts have to consider ordering in every case involving
death, injury, loss or damage. Community Service orders are a way
of punishing an offender by making him do useful work for the
community as a whole. At the present time a debate is developing on
restorative justice, which seeks to move away from the conventional
analysis as the researcher has described here, and into new areas of
mediation and involvement of victims and offenders. 174
A popular proposed alternative to the institution of punishment is to

treat what are presently criminal acts in a similar manner to civil
wrongs. In this vein, it has been suggested that the emphasis of the
sentencing system should be reconciliation and reparation, not
punishment. One of the main advantages of restorative theories of
criminal justice is that they allow victims of crimes, who are almost
totally marginalized by the traditional criminal justice process, a far
more central role at sentencing stage. The advent of victim impact
statements, which enable victims to detail the effects that the crime
has had on them, and victim compensation schemes, have stemmed
from a growing appreciation of the importance of the victim in the
criminal justice system. Reforms of this nature, however, are unlikely
to diminish the perceived need to punish offenders. At its highest, it
can be argued that compensation and reconciliation should have a
more prominent role in the process of State imposed punishment.
Thus restorative Justice is not a substitute for the process of
criminal punishment. There are also several others intractable
difficulties with restorative theories. First, they conflict with
fundamental aspects of criminal law ideology. The criminal law
punishes behavior that is so repugnant that it is an affront to society
174 Supra Note 16, p. 323.
as a whole, not merely the victim. This breaks the nexus between the
accused and victim. Secondly, restorative ‘justice’ is too arbitrary.
This was a point acknowledged by the Court of Appeal in Nunn
Case 175 where it was observed that the opinions of victims cannot be
a guide to the appropriate sentence, as this would impair consistency
in sentencing. 176
3.8 PUNISHMENT OF ARTIFICIAL PERSONS
The old maxim that a corporation cannot commit a criminal offense

is no longer entirely valid based on practice at the domestic and
international levels. Originally, because criminal law focused on
assigning moral culpability for the commission of certain acts, it was
considered inappropriate that a legal person such as a business or
corporation, incapable of moral culpability, could be subjected to it.
This idea has changed greatly, particularly in response to current
crime trends in which serious criminal offenses such as organized
crime, corruption, money laundering, and the financing of terrorism
are perpetrated through corporate entities as well as through
individuals. Given the complex structures of corporate entities, it is
sometimes difficult to identify a natural person who is the
perpetrator of the criminal offense. The introduction of legal
provisions in domestic law that provide for liability of legal persons
serves to address the difficulty of identifying the natural person who
is the perpetrator, to tackle serious criminal offenses perpetrated by
those who try to shield their criminal conduct through the use of
corporations, and to target the assets of a corporation used as a front
for criminal conduct. 177
175 Nunn [1996] 2 Cr. App. R(S) 136.

176 Supra Note 13, pp. 9-10.
177Retrieved from <http://www.usip.org/sites/default/files/MC1/MC1-
Part1Section8.pdf> last visited on 10th February, 2017 at 10:06 IST.
In Salomon v. Salomon & Co., it was held that “like any juristic
person, a company is legally an entity apart from its members,
capable of rights and duties of its own, and endowed with the
potential of perpetual succession” 178.
Sr. No. Case Principle Held

1. State Trading Corporation of The court held that unlike an
India v. Commercial Tax Officer unincorporated company, which has got
((1963) 33 Comp Cas 1057 (SC) no separate existence and which the law
does not distinguishes from its members,
an incorporated company has separate
existence and the law recognizes it as a
legal person separate and distinct from its
members.
2. Dredge & Dock Case (1985) A corporation may have several directing
mind. Thus where corporate activities are
wide spread, it will be inevitable that there
will be delegation and sub delegation of
authority from the centre and thus leading
to several directing minds.
The action and intent of the directing mind
is merged with the intent of the corporate
entity, thus there exists no defence for the
company to claim.
It is the Courts adopted rule the mental
state of mind is equally same to that of the
virtual body that is the corporate entity.
As per the assessment of the Court if the
agent’s directing mind and will assigned of
the duties and responsibilities of the
corporation then it shall be intended to be
the act of the Company itself.
The main essence of the test is to identify
the existence of the meeting of the minds
of the company with that of the agent.
3. State of Maharastra v. Syndicate Numerous corporate bodies have come
Transport Co. Pvt. Ltd. into existence. These corporate bodies
AIR 1964 Bom 195. necessarily act through the human
agency of their directors or officers and
authorized agents. These seem to be no
reason to exempt them from liability for
crimes committed by their agents or
servants while purporting to act for or on
behalf of the corporate bodies. The
ordinary citizen is now very much
exposed to the activities of persons
acting, in the name of corporate bodies.
4. Tesco Supermarkets v The HOUSE OF LORDS gave the
Nattrars[1972] AC 153 judgment that the manager was not the
178 (1897) AC 22 H.L.
directing mind of the corporation and
therefore he was not attributable to the act
of the corporation. Lord Reid held that, in
order for liability to attach to the actions of
a person, it must be the case that "The
person who acts is not speaking or acting
for the company. He is acting as the
company and his mind which directs his
acts is the mind of the company. If it is a
guilty mind then that guilt is the guilt of the
company"
5. Oswal Vanaspati & Allied “A company being a juristic person cannot
Industries v. State Of Uttar obviously be sentenced to imprisonment
Pradesh (1993) 1 Comp. LJ 172. as it cannot suffer imprisonment. . . . It is
settled law that sentence or punishment
must follow conviction; and if only corporal
punishment is prescribed, a company
which is a juristic person cannot be
prosecuted as it cannot be punished. If,
however, both sentence of imprisonment
and fine is prescribed for natural persons
and juristic persons jointly, then, though
the sentence of imprisonment cannot be
awarded to a company, the sentence of
fine can be imposed on it. Legal sentence
is the sentence prescribed by law. A
sentence which is in excess of the
sentence prescribed is always illegal; but
a sentence which is less than the
sentence prescribed may not in all cases
be illegal”
6. Zee Telefilms Ltd. v. Sahara The Court held that to commit a crime
India Co. Corp. Ltd (2001) 3 under defamation it was required to find
Recent Criminal Reports 292. out the presence of the requisite mens rea
which is one of the most essential
elements of the offence of criminal
defamation and in this case the company
could not have the requisite mens rea.
Thus it was decided that the company will
not be held liable for the criminal acts.
7. Assistant Commissioner v. Initially it left the Court startled because it
Velliappa Textiles Ltd (2004) 1. could not impose only fine upon the
Comp. L.J. 21. company because it was a mandatory
provision of the INCOME TAX ACT to
impose both imprisonment and penalty.
As per the penal provisions are concerned
it was to be strictly interpreted. It was
basically impossible to put the company
behind the bars because it was
impossible. The Court focused on two of
the important maxims:
“Lex non cogit ad impossibilia” which
means “the law forces not to
impossibilities”.
“Impotentiaexcusatlegem” which means
“impossibilities excuses the law”.
Hence it was held that a company cannot
be prosecuted for offences which required
imposition of a mandatory term of
imprisonment and fine. The Supreme
Court stated that the legislative mandate
of the Court is to prohibit the deviation
from the minimum rate of punishment.
The Court was further of the view that it is
to favor the construction of a statute that
exempts a penalty rather than to impose
another penalty.
Criminal liabilities of legal bodies have been a legal agenda since the
mid-nineteenth century, when the corporations began to play a role
in social and economic life on the wake of Industrial Revolution and
urbanization process. Now, in India certain Statutes like Indian
Penal Code talks about various types of punishment that are defined
under Section 53 of the Act. This Section quotes that punishment
can be of various types: death or imprisonment which can be further
sub-divide into rigorous imprisonment and simple imprisonment,
forfeiture of property and fine. Section 420 of the Act states any
person committing crime under this provision is bound to
imprisonment and this punishment is also applicable for the
Companies. We are all aware of the fact that the Penal statutes are
only interpreted by means of Strict Interpretation. The growing trend
of corporate criminality is at an alarming rate which makes the Court
consider for the establishment of the fact of the presence of mens rea
when it comes to the companies of India.179
The difficulty that arose out of the conflicting situation between the
Court and the Statutes seemed to be never ending. At that point of
time the 41st Law Commission Report was established which
suggested certain amendments to Section 62 of the Indian Penal
179 Retrieved from <http://jcil.lsyndicate.com/wp-

content/uploads/2016/03/CORPORATE-CRIMINAL-LIABILITY-Shreya-
Bhattacharjee.pdf> last visited on February 10, 2017 at 10:59 IST.
Code, 1860. It stated as follows: “In every case in which the offence is
only punishable with imprisonment or with imprisonment and fine
and the offender is a company or other body corporate or an
association of individuals, it shall be competent to the Court to
sentence such offender to fine only”
By far the most common sanction is the monetary fine. Only in cases
investigated, unique amongst regulatory bodies established as a part
of criminal justice legislation, is imprisonment of individuals likely to
be an outcome. Most generally, following successful prosecution for
corporate crimes, fines are levelled at companies, and these are
almost uniformly low. Even the few large fines appear insignificant
when set against a company’s annual profits or turnover. Whilst fine
following successful prosecutions are low, it might be argued that
,were they to be raised to sufficiently high levels to have a deterrent
effect, this might be counter productive: the company may pass the
costs on to workers, consumers or both rather than to the
shareholders who are legitimate object of the sanction. Indeed,
ultimately, fines that do impact too much upon a company may lead
to its closure, thus affecting the innocent again- notably employees,
but also other organizations (which, for example, may supply goods
or services to the offending company) or consumers, who might find
themselves buying goods or services in a less competitive market.
None of these are reasons why large fines should not be used in
principle. Such factors do, however, indicate that fines need to be
used more sensitively and also that they may take forms other than a
direct monetary penalty, such as for example, the use of an equity
fine, which involves the confiscation of a block of shares by the
Government or a local authority. Moreover, even if we accept that
there are problems with the use of monetary sanctions, sentencing of
corporations involved in a corporate crime is an area in which there
now exists a range of imaginative proposals, some of which have
been introduced in limited fashion, others of which remain at the
proposal stage. Amongst these are:
• Disqualification of individual directors, a sanction used in the

case of financial crimes, but rarely beyond the context;
• The withdrawal of licenses to operate and the barring of

convicted companies from bidding for government related
contracts
• The use of community service or restitution orders, whereby a

convicted company is required to make good damage caused,
or to use its resources and expertise to provide goods and
services to a victimized community;
• The use of probation and rehabilitation orders, whereby a

company is required to hire outside ‘experts’ to reform, for
example, Safety training or financial reporting systems;
• The use of adverse publicity and shaming, requiring a

company to name itself, or to be named, as an offender in
appropriate media outlets. 180
3.9 Need for Sentencing Policy
There are certain purposes for having a sentencing policy:
(a) to ensure that the offender is adequately punished for the

offence,
(b) to prevent crime by deterring the offender and other persons

from committing similar offences,
(c) to protect the community from the offender
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions
(f) to denounce the conduct of the offender,
180 Chris Hale, Keith Hayward, AzriniWahidin and Emma Wincup, Criminology,
Oxford University Press, New York, (2009), p. 314.
(g) to recognize the harm done to the victim of the crime and to
the community
(h) to be certain about the penalty to be inflicted
(i) to curb discretion and avoid arbitrariness
(j) to impose adequate, swift and proportional punishment
(k) to minimize disparities and variation in sentences imposed for

similar crimes in similar circumstances
(l) to clearly lay down the alternative forms which can be opted
over custodial measures
(m) to ensure that the judge has considered all the factors and
circumstances.
(n) to ensure individualization of sentences
(o) to ensure reasons for all the harsher sentences pronounced

etc.
3.9.1 Sentencing Policy in USA and UK
The object of the criminal trial is to determine whether the accused

person is guilty of the offence he is charged with and to provide
suitable action for the same if proven guilty. The choice of an
appropriate sanction out of many permitted by law in a particular
situation is of as enormous consequence to the individual offender as
it is to society at large. While the offender’s life, liberty or property
and his entire future hinge on the outcome of sentencing process, it
is also bound to have some impact on social interest, which ought to
be the primary concern for criminal justice system. The increasing
volume of offenses and offenders continues to overwhelm the entire
system. The sentencing system prevailing in our nation is flawed by
some profound imbalance between the severity of the punishment
among these convicted of crimes. Some convicted offenders are
suffering an extraordinarily harsh punishment, which sometimes
clearly seems to be in excess of the maximum sentence they deserve,
measured against the standards of fairness and effectiveness, for too
many criminals receive sentence that are simply not severe enough.
Unless, these fair disparities are drastically reduced, our criminal
justice system will suffer loss of respect, faith and credibility
amongst every segment of our society from those who obey or enforce
law to those who violate the law. 181
There is no statutory or case law definition of sentence. Certainly, it

must include the punishment, such as fine or a custodial sentence,
which the court imposes upon an offender for the offence. It should
also include orders imposed upon the offender on conviction which
cannot properly be described as punishments. For instance, the
ancillary orders are made against the offender to benefit individuals
who have suffered loss or have been put to expense by reason of the
offence like compensation orders. 182
The objectives of sentencing, to which the courts are required to have

regarded when dealing with the offenders, are 183:
• Punishment of offenders
• Reduction of Crime
• Reform and Rehabilitation of offenders
• Protection of the public
• Making of reparation by offenders to persons affected by their

offences.
3.9.2 U. S. Federal Sentencing Model
181 Supra Note 34, pp. vii-4.

182 Martin Wasik, Emmins on Sentencing, Oxford University Press, New York,
(2007), p. 6.
183 The City Law School (London), Criminal Litigation and Sentencing, Oxford
University Press, New York, (2009), p. 292.
The federal sentencing guidelines are, in a sense, simply a long set of
instructions for one chart: the sentencing table, a two dimensional
grid which measures the seriousness of the current offense on its
vertical axis and the defendant’s criminal history on its horizontal
axis. The goal of the guidelines calculations is to determine an
offense level and a criminal history category, which together generate
an intersection in the body of the grid. Each intersection designates a
sentencing range expressed in months. Most American sentencing
guideline systems use some form of sentencing grid measurements of
offense seriousness and criminal history to place defendants within a
sentencing range. The federal system, however, is unique in the
complexity of its sentencing table, which has 43 offence levels, 6
criminal history categories and 258 sentencing range boxes.
The criminal history category reflected on the horizontal axis of the

sentencing table attempts to quantify the defendant’s disposition to
criminality. The offense level reflected on the vertical axis of the
sentencing table is a measurement of the seriousness of the present
crime. The offense levels has three components: (1) the “base offense
level”, which is a seriousness ranking based purely on the fact of
conviction of a particular statutory violation, (2) a set of “specific
offense characteristics”, which are factors not included as elements
of the offense that cause us to think of one crime as more or less
serious than another and (3) additional adjustments.
A unique and controversial aspect of the guidelines is “relevant

conduct”. The guidelines require that a judge calculating the
applicable offense level and any adjustment must consider not only a
defendants conduct directly related to the offense or offenses for
which he was convicted, but also the foreseeable conduct of his
criminal partners, as well as his own uncharged, dismissed or even
acquitted conduct undertaken as a part of the same transaction or
common scheme or plan as the offense of conviction 184. The primary
purpose of the relevant conduct provision is to prevent the parties
from circumventing the guidelines through manipulation. Once a
court has determined a defendants range for sentencing, the judge
retains effectively unfettered discretion to sentence within that range.
However, to sentence outside the range, the judge must justify the
departure on certain limited grounds, specifically; there must be
aggravating or mitigating circumstances of a kind or to a degree, not
adequately taken into consideration. Critically, both the rules
determining the guideline range and those governing the judge’s
departure authority are made enforceable by a right of appeal given
to both parties. 185
3.9.3 English Sentencing Model
In England the Sentencing Guideline Council has set out the process
that the sentence should follow a sequence of decisions that should
serve as the foundation of the guidelines approach. The seven main
steps are as follows:
1. Identify the appropriate starting point
2. Consider relevant aggravating features
3. Consider relevant mitigating factors and personal mitigation
4. Consideration any reduction for a guilty plea
5. Consider making an ancillary order
6. Consider the totality principle
184 United States v. Watts, 519 U.S. 148 (1997).

185 Sanford H. Kadish, Stephen J. Schulhofer and Carol S. Steiker, Criminal
Law and its Processes, Wolters Kluwer, Aspen Publishers, New York, (2007),
pp. 1055-1056.
7. Give reasons if the sentence is outside the range.
The assessment of weight of aggravating and mitigating matters is for

the court 186. The only step in sentencing that is mathematical is the
reduction for a guilty plea, where the Sentencing Guidelines
Council’s guidelines indicates a sliding scale although judgement has
to be used in applying it to the facts. Court of Appeal in Wilson’s
Case 187 states, “the sentencing process must allow for flexibility and
variability. The suggested starting points and sentencing ranges
contained in the offence guidelines are not rigid, and movement
within and between ranges will be dependent upon the
circumstances of individual cases and, in particular, the aggravating
and mitigating factors that are present. Since guidelines do not in
general indicate the factors that will increase or reduce the weight of
a particular factor, one way of making up for this lack of substantive
guidance is to insist on transparency, i.e. on the court specifying why
it has given great weight to some factors and less to others. The
frequent judicial repetition of the phrase ‘guidelines are only
guidelines’, while obviously true in itself, gives insufficient
recognition to the importance of a common approach or process”. 188
From the point of view of consistency and predictability, there is one

respect in which sentencing guidelines on the English Model seems
deficient. The sentencer identifies the range and starting point that
seems to fit most closely the facts of the case and then if that range
straddles two forms of sentence, the court is obliged to apply the
relevant statutory threshold before deciding on the level of sentence.
After that, when deciding how far from the chosen starting point the
186 Supra Note 14, pp. 32-33.

187 [2008] 1 Cr App R (S) 542, at 16.
provisional sentence should be moved, and in deciding on the effect
of personal mitigation, the court has relatively little guidance.
Moreover, if considerations of justice and punishment were ignored,

then sentencing determinations would rationally be made on the
basis of simplistic Benthamite calculus. Sentencing officials would
consider such factors as available space in prisons; likelihood that a
given defendant, if permitted to remain free, would commit serious
crimes; projected impact of sentence on the future criminality of this
defendant and others; and the balance of advantages and
disadvantages to society of imprisoning the particular defendant.
Sentencing officials do, of course consider such factors, especially in
our current age of relatively indeterminate sentencing. But they also
consider the gravity and culpability of the underlying crime. But
where to strike the appropriate balance between “past looking”
considerations of proportionality and “future looking” considerations
of crime reduction is a question that has perennially troubled and
will continue to trouble concerned people. 189
3.10 NEED TO ADOPT MODERN SENTENCING POLICY IN INDIA
The criminologists are required to suggest a model sentencing code

keeping in view Articles 14, 19, and 21 of the Indian Constitution.
Presently, most of the codes are bereft of guidelines, devoid of
flexibility and unaware of curative goals. Lawlessness in sentencing
matters is hidden in the mask of judicial discretion and must be
removed by a new penal phenomenon blended with effective and
flexible rules and guidelines. Formulation of such guidelines or
directions is the first step in ushering the rule of law where judicial
vagary rules sentencing by judges must be according to the rule of
law and fair play there must be a policy guideline; there must be a
goal oriented imposition of sentence; there must be a social defence
functionally served by the strategy of sentence prescribed by the
court. The basic principles of sentencing policy may be outlined so
that arbitrariness may be excluded. 190
A model has been provided herewith as a sample for guiding the

Sentencing discretion of the judges. 191 The researcher suggests
either a model should be adopted with exhaustive guidelines
formulated by a legal body (Sentencing Commission or Council) or
the courts trying offences may be provided with a checklist to assure
that all relevant points have been taken into consideration and steps
have been followed. The Model stated below has been adopted from
the UK system of sentencing as the Federal system involves
mathematical calculations of penalty which may sometimes be too
harsh to impose. The Grid system itself is not followed in every
region of United States.
Step 1: Determining the offence category- The court should determine

the offence category with reference to the parameters below. In order
to determine the category the court should assess culpability and
harm.
 Culpability: The level of culpability is determined by weighing

up all the factors of the case to determine the offender’s role
and the extent to which the offending was planned and the
sophistication with which it was carried out. Culpability
demonstrated by one or more of the following:
A- High Culpability
190 Supra Note 20, p. 184.

191 Retrieved from <https://www.sentencingcouncil.org.uk/wp-
content/uploads/MCSG_web_-_October_2014.pdf> last visited on October
19, 2015 at 20:55 IST.
• A leading role where offending is part of a group activity
• Involvement of others through pressure, influence
• Abuse of position of significant power or trust or responsibility
• Intended corruption (directly or indirectly) of a senior official

performing a public function
• Intended corruption (directly or indirectly) of a law enforcement

officer
• Sophisticated nature of offence/significant planning
• Offending conducted over sustained period of time
• Motivated by expectation of substantial financial, commercial

or political gain
B- Medium Culpability
• All other cases where characteristics for categories A or C are

not present
• A significant role where offending is part of a group activity
C- Lesser Culpability
• Involved through coercion, intimidation or exploitation
• Not motivated by personal gain
• Peripheral role in organised activity
• Opportunistic ‘one-off’ offence; very little or no planning
• Limited awareness or understanding of extent of corrupt

activity
Where there are characteristics present which fall under different

levels of culpability, the court should balance these characteristics to
reach a fair assessment of the offender’s culpability.
Harm: Harm is assessed in relation to any impact caused by the

offending (whether to identifiable victims or in a wider context) and
the actual or intended gain to the offender. Risk of harm involves
consideration of both the likelihood of harm occurring and the extent
of it if it does. Risk of harm is less serious than the same actual
harm. Where the offence has caused risk of harm but no (or much
less) actual harm, the normal approach is to move to the next
category of harm down. This may not be appropriate if either the
likelihood or extent of potential harm is particularly high.
Harm demonstrated by one or more of the following factors:
Category 1:
• Serious detrimental effect on individuals (for example by

provision of substandard goods or services resulting from the
corrupt behaviour)
• Serious environmental impact
• Serious undermining of the proper function of local or national

government, business or public services
• Substantial actual or intended financial gain to offender or

another or loss caused to others
Category 2
• Significant detrimental effect on individuals
• Significant environmental impact
• Significant undermining of the proper function of local or

national government, business or public services
• Significant actual or intended financial gain to offender or

another or loss caused to others
• Risk of category 1 harm
Category 3
• Limited detrimental impact on individuals, the environment,

government, business or public services
Category 4
Step 2: Starting Point and Category Range
Having determined the category at step one, the court should use the
corresponding starting point to reach a sentence within the category
range specified for the same. The starting point applies to all
offenders irrespective of plea or previous convictions.
Specify the Sections or Provisions providing Penalty
For example, Section 19 of NDPS Act, Embezzlement of opium by

licensed farmer
Maximum Punishment: Rigorous imprisonment -10 to 20 years + fine

Rs. 1 to 2 lakhs (regardless of the quantity).
Sample:
Harm Culpability
A B C
Category 1 Starting point: Starting point: Starting point:

15 years 12 years 10 years
Imprisonment Imprisonment Imprisonment
Category Category Category

Range: Range: Range:
15-20 years 7-15 years 5-10 years

imprisonment imprisonment imprisonment
Consecutive sentences for multiple offences may be appropriate

where large sums are involved.
Factors Increasing Seriousness
Statutory Aggravating Factors:
• Previous convictions, having regard to a) the nature of the

offence to which the conviction relates and its relevance to the
current offence; and b) the time that has elapsed since the
conviction
• Offence committed whilst on bail
Other Aggravating Factors:
• Steps taken to prevent victims reporting or obtaining

assistance and/or from assisting or supporting the prosecution
• Attempts to conceal/dispose of evidence
• Established evidence of community/wider impact
• Failure to comply with current court orders
• Offence committed on licence
• Offences taken into consideration
• Failure to respond to warnings about behaviour
• Offences committed across borders
• Blame wrongly placed on others
• Pressure exerted on another party
• Offence committed to facilitate other criminal activity
Factors reducing seriousness or reflecting personal mitigation
• No previous convictions or no relevant/recent convictions
• Remorse
• Good character and/or exemplary conduct
• Little or no prospect of success
• Serious medical conditions requiring urgent, intensive or long-
term treatment
• Age and/or lack of maturity where it affects the responsibility

of the offender
• Lapse of time since apprehension where this does not arise

from the conduct of the offender
• Mental disorder or learning disability
• Sole or primary carer for dependent relatives
• Offender co-operated with investigation, made early

admissions and/or voluntarily reported offending
Step 3: Consider any factors which indicate a reduction, such as

assistance to the prosecution.
Step 4: Reduction for pleading guilty
Step 5: Totality principle- If sentencing an offender for more than one

offence, or where the offender is already serving a sentence, consider
whether the total sentence is just and proportionate to the overall
offending behaviour.
Step 6: Confiscation, Compensation and ancillary order
Step 7: Reasons and Consideration for time spent on bail
The Law Commission of India suggested guidelines for award of

Death Penalty. The Apex court in Bachan Singh’s Case AIR 1980 SC
898 did not favour it and emphasized that judicial discretion as such
is appropriate. In 2008, the Committee on Draft National Policy on
Criminal Justice (the Madhava Menon Committee), reasserted the
need for statutory sentencing guidelines. In an October 2010 news
report, the Law Minister is quoted as having stated that the
government is looking into establishing a “uniform sentencing policy”
in line with the United States and the United Kingdom in order to
ensure that judges do not issue varied sentences. At the same time
judicial discretion must be there to be in consonance with the
criminal justice jurisprudence on sentencing i.e. relevant factors for
the award of punishment are:
1. Circumstances of the crime, as well as;

2. Circumstances of the Criminal.
3.11 CONCLUSION
The researcher attempts to draw the following conclusion:
1. Rationales for sentencing should be declared and where these

rationales conflict, priorities should be stated, and where
possible a primary rationale should be declared.
2. Setting up of a sentencing council bringing together

sentencers, lawyers, other criminal justice professionals, and
academicians to keep sentencing practice under the review and
to offer coherent packages of authoritative guidance.
3. There should be periodic review of the crime categories; of

minimum, maximum and presumptive sentence (if included);
and mitigating and aggravating factors. The code should be so
revised as to define offences and mention maximum
punishments instead of prescribing them for various
aggravations. Sections may accordingly be regrouped which
will further reduce the bulk of the code.
4. Distinction between simple and rigorous imprisonment is

harmful to the offenders and is unscientific in its approach for
adjusting quantum of punishment. The distinction should be
abolished and all offenders should be required to work as per
their capacity.
5. Solitary Confinement which is meant to enhance severity of

punishment or to infuse introspection is no longer favoured. It
should therefore be abolished.
6. Short term imprisonments neither provide deterrence nor are

sufficient for reformative or treatment programmes to be
effective on them. Either a judge should resort to probation
provisions or the legislature should prescribe a minimum for
an offence.
7. There are illogical variations in quantum of punishment

administered in almost similar cases by different judges. It is
proposed that the distribution of the work amongst the judges
should be as far as possible be crime wise rather than area
wise. Lack of guiding principles is also one of the reason.
8. Provisions relating to habitual offenders for confinement for

enhanced terms in prisons are not comprehensive for dealing
with the problem. Moreover, only the instant crime has usually
been taken into account for fixing punishment. Detention of
such criminals in prisons has unhealthy effect on them as also
on other inmates.
9. Elimination of barriers in case of employment of ex-convicts.
10. When Imprisonment is not prescribed at the first instance and

fine is levied, there is no justification for levying it in case of
default of non-payment of fine. Many jurisdictions have
implemented other measures to prevent imprisonment for fine
default such as unpaid work. Both Austria and Scotland have
implemented the possibility of unpaid work as an alternative to
imprisonment for fine default. While Scotland has almost 20
years of experience, Austria has just recently implemented the
option of community work for fine defaulters in 2008.
11. As suggest by the 262nd Report of the Law Commission, Death

penalty should be retained only for dealing with the offences of
Waging War against the Government and Terrorism. The
Researcher also suggest that a moratorium can be imposed for
a limited time period to see if our nation can survive without
such harsh punishment. At the end of the Moratorium the
decision in regard to retention of Death Sentence can be
considered or rejected.
We need to formulate and implement a sentencing policy in India

that is more just to the persons held guilty in terms of fairness and
more effective in terms of reducing crime than the one currently in
operation as well as to address the grievances of the victims. Its
essential attributes must be that it is definitive as appropriate and
should serve the ends of justice for all concerned that is society;
victim; and the offender too.

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Penal Policy in India

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║ChapterIII║

Punishment and SentencingPolicy

Punishment and Sentencing Policy

“It would seem imperative that each successive generation

It is a general observation that courts dedicate much time and

1 Manheim, Criminal Justice and Social Reconstruction, Oxford University

| Punishment and Sentencing Policy under the Penal Laws in India | 80 |

3.2INTERPRETATION OF A PENAL STATUTE

The penal law performs two interlocking functions. By

2 Kirpal Singh, Quantum of Punishment in Criminal Law in India, Publication

| Punishment and Sentencing Policy under the Penal Laws in India | 81 |

The principle is that a penal statute is to be interpreted strictly.

Maxwell says that strict construction of penal statutes seems to

4 Andrew Von Hirsch, Censure and Proportionality, A Reader on Punishment,

| Punishment and Sentencing Policy under the Penal Laws in India | 82 |

b) In interpreting strictly words setting out the elements of an

c) In requiring the fulfilment to the letter of statutory conditions

d) In insisting on the strict observance of technical provisions

Judges in criminal cases cannot have the authority to interpret laws,

| Punishment and Sentencing Policy under the Penal Laws in India | 83 |

3.3 THE ORIGIN OF PUNISHMENT AND TYPES OF SANCTIONS

Punishment is a basic fact of human life. We impose punishment in

9 Eugene McLaughlin, John Muncie and Gordon Hughes, Criminological

| Punishment and Sentencing Policy under the Penal Laws in India | 84 |

TABLE: TYPES OF SANCTIONS (EXAMPLES)

Positive (Rewards) Negative (Punishments)

3.3.1 Definition of Punishment

| Punishment and Sentencing Policy under the Penal Laws in India | 85 |

Hart defines it as ‘an agreement resulting from a restorative justice

(i) It may involve consequences normally considered unpleasant;

(ii) It is for an offence against legal rules;

(iii) It is of an actual or supposed offender for his offence

(iv) It may be intentionally administered by human beings other

13MirkoBagaric, Punishment and Sentencing: A Rational Approach, Cavendish

| Punishment and Sentencing Policy under the Penal Laws in India | 86 |

Hart’s definition purports to take an objective view, dependent not on

a) Certainty: Punishment should be the inevitable and

b) Promptness: Punishment should follow the offending

c) Severity: if punishment is not applied with great intensity, its

14Andrew Ashworth, Sentencing and Criminal Justice, Cambridge University Press,

| Punishment and Sentencing Policy under the Penal Laws in India | 87 |

The great criminologist Beccaria is still generally thought to have

A criminal act (e.g., theft, murder, rape) is directed towards an

16 Yvonne Jewkes, Gayle Letherby, Criminology: A Reader, Sage Publications,

| Punishment and Sentencing Policy under the Penal Laws in India | 88 |

| Punishment and Sentencing Policy under the Penal Laws in India | 89 |

The specific principles that underlie these dominant philosophies for

One of the oldest and most basic justifications for punishment

19 Channon (1978) 20 ALR 1, p. 15.

| Punishment and Sentencing Policy under the Penal Laws in India | 90 |

The classical retributive principle of “let the punishment fit the

Consistent with a retributive philosophy, punishment under these

| Punishment and Sentencing Policy under the Penal Laws in India | 91 |

Retribution as a penal philosophy has been criticized on several

| Punishment and Sentencing Policy under the Penal Laws in India | 92 |

Under these conditions, a retributive sentencing system that

One of the most convincing statements of the retribution theory was