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CLASSIFICATION OF OFFENCES, THEORIES OF PUNISHMENT

INTRODUCTION:

A violation of a penal law is an offence. Thus, any act which is deemed as an offence by any law
is an offence. In general, such act which causes a violation of rights of others or cause harm to
others and is so dangerous that is also affects the society at large is designated as offence by the
legislature through the acts of the parliament. Section 2(n) of CrPC defines an offence as follows

Section 2(n) - "Offence" means any act or omission made punishable by any law for the time
being in force and includes any act in respect of which a complaint may be made under section
20 of the Cattle-trespass Act, 1871.

Further Section 39(2) says that act committed outside India is also an offence if that act would be
an offence if committed in India.

Under the Criminal Procedure Code, offences can be classified on the basis of the following
three criterions;

 Cognizable and Non cognizable offences


 Bailable and Non bailable offences
 Offences which will invoke a summons case and Offences which will invoke a warrants
case.

Cognizable and Non-Cognizable offences

 Cognizable and non-cognizable offences Cognizable offences have been defined in


Criminal Procedure Code as follows; " `cognizable offence' means an offence for which,
and `cognizable case' means a case in which, a police officer may, in accordance with the
First Schedule or under any other law for the time being in force, arrest without warrant".
 A non-cognizable offence has been defined in Criminal Procedure Code as follows,
"`non-cognizable offence' means an offence for which, and `non- cognizable case' means
a case in which, a police officer has no authority to arrest without warrant".
 Now which offence falls under the category of cognizable offences and which falls under
the category of non-cognizable offences can be determined as per the classification given

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in the First Schedule of the Criminal Procedure Code. The First Schedule has classified
all acts punishable under the Indian Penal Code, 1860 into Cognizable and non-
cognizable offences. Although the Code in itself does not give any reasoning as to this
classification, certain patterns can be traced if the First schedule is studied carefully. All
offences which have a punishment of more than 3 years under the Indian Penal Code are
considered to be cognizable offences and all offences which have a punishment of less
than 3 years are non- cognizable offences. Subsequently, it can be deduced that non-
cognizable offences are relatively less serious in nature than cognizable offences.
 Consequently, in case of cognizable offences, the police officers can arrest the accused
person without any warrant or authority issued by a magistrate. They can initiate
investigation on their own accord and they needn't wait for the prior permission of a
magistrate. In fact, they have a legal duty to initiate investigations. "No proceeding of a
police officer in any such case shall at any stage be called in question on the ground that
the case was one which such officer was not empowered under this section to
investigate."
 On the other hand, police officers necessarily need prior permission of a magistrate to
initiate investigations in cases of non-cognizable offences. Non cognizable offences are
considered more in the nature of private wrongs and therefore the collection of evidence
and the prosecution of offender are left to the initiative and efforts of private citizens.

Bailable And Non-Bailable offences

 Criminal Procedure Code defines bailable and non-bailable offences as "an offence which
is shown as bailable in the First Schedule, or which is made bailable by any other law for
the time being in force; and "non-bailable offence" means any other offence" In here too,
the code does not give any reason as to on what criteria has such classification been based
upon. It just lays down a seemingly arbitrary classification of the same. However, it can
be logically deduced that all serious offences are non-bailable whereas all less serious
offences are bailable.
 Similarly, all offences which have a punishment of more than 3 years under the Indian
Penal Code are considered to be non-bailable offences and all offences which have a

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punishment of less than 3 years are bailable offences. This too is subject to the exception
of existence of a contrary law. If a person accused of a bailable offence is arrested or
detained without warrant he has a right to be released on bail. In case he is accused of a
non-bailable offence, then his bail is subject to the discretion by the authorities.

Warrant Case And Summons Case

 According to the Criminal Procedure Code, a warrant-case "means a case relating to an


offence punishable with death, imprisonment for life or imprisonment for a term
exceeding two years ".
 According to the Criminal Procedure Code, "a summons case means a case relating to an
offence, not being a warrant case".
 This classification helps to determine the type of trial procedure to be adopted in the case.
Naturally, the trial procedure in case of a warrant case is much more elaborate than that
of a summons case. This classification is also useful at the stage of issuing process to the
accused person in the first instance

Bailable And Non-Bailable offences

The Cr. P.C. classifies offences into two categories  bailable and non- bailable. The
classification is done mainly on the basis of the gravity of the offence and the punishment
provided for such offence. Generally speaking, a bailable offence is considered to be less grave
and serious than a non-bailable offence. Bailable

and non-bailable offences aredefined in clause (a) of S. 2 of the Cr. P.C., as under:

“(a) “bailable offence” means an offence which is shown as bailable in the First Schedule, or
which is made bailable by any other law for the time being in force; and “non-bailable offence”
means any other offence;”

It is pertinent to point out that individual offences under IPC have been specifically declared as
bailable or non-bailable in the first part of the first Schedule to Cr. P.C. to find out whether that
offence is bailable or non-bailable;however, in the absence of any such declaration under such
parent Act, the general rules mentioned in the second part of the first Schedule to Cr. P.C. have
to be referred to, for deciding whether that offence is bailable or non-bailable.

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Criminal Procedure Code has classified offences into two groups, namely bailable and non-
bailable depending on the gravity of the offences and the punishment pre- Criminal Procedure
Code (of 1898) (now, see under Ss. 436 to 450 of Cr. P.C. of (1973)). The main provision
relating to bail in bailable cases is contained in Section 496, Criminal Procedure Code (of 1898)
and that relating to non-bailable cases is given in Section 497, Criminal Procedure
Code(of1898).1

The classification of offences into the two categories of bailable and non- bailable offences may
perhaps be explained on the basis that bailable offences are generally regarded as less grave and
serious than non-bailable offences. On this basis it may not be easy to explain why, for instance
offences under Ss. 477, 477-A, 475 and 506 of the Indian Penal Code should be regarded as
bailable whereas offences under S. 379 should be non-bailable. However, it cannot be disputed
that

S. 496 of Cr. P.C. (of 1898) recognizes that a person accused of a bailable offence has a right to
been larged on bail. 2

Bailable offences have been defined under clause (a) of Section 2, Cr. P.C., which means offence
which is shown as bailable in the first Schedule, or which is made bailable by any other law for
the bail being in force and “non- bailable offence” means any other offence. The first Schedule
of Cr. P.C. consists of two parts, the first part is regarding the offences under the I.P.C. and
second part is regarding offences against other law. The second part provides that if the offence
is punishable with imprisonment for less than three years of fine only it shall be bailable and can
be tried byanyMagistrate.3

Section 4(1)(b) of Cr. P.C. (of 1898) defines bailable offence : bailable offence means an offence
shown as bailable in the second schedule, or which is made bailable by any other law for the
time being in force; and “non-bailable offence”means any other offence.4

1
Nirmal Kumar Banerjee v. State, 1972 Cri LJ 1582at p.1583 (Cal).
2
Talab Haji Hussain v. Madhukar Pushottam Mondkar, AIR 1958 SC 376 at p. 378 : 1958 SCR 1226 :
1958Cri LJ 701.
3
Abdul Aziz v. State of U.P.¸2002 Cri LJ 2913 a p.2915 (All).
4
Kanubhai Chhagnlal Brahmbhat v. State of Gujarat, 1973Cri LJ 533 at p.536(Guj).

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Bail is one such mechanism which is used to ensure the presence of an accused whenever
required by the court. CrPC does not define the term Bail, but essentially, Bail is an agreement in
which a person makes a written undertaking to the court. A person who is in custody, because he
or she has been charged with an offence or is involved in pending criminal proceedings, may
apply to be released on Bail. Normally, in signing a bail agreement a person undertakes that he
will be present every time the matter is in court until the proceedings are finished, will comply
with any conditions set out in the agreement as to conduct while on Bail, and will forfeit a
specified sum of money if the person fails, without proper excuse, to comply with any term or
condition of the agreement. Two authorities that may grant bail are the police and the courts. A
person may be required to provide a security as well. But it is not necessary. A person may also
be let off on his own bond. In the case of Moti Ram vs State of MP, AIR 1978, SC held that a
Bail covers both release on one's own bond with or without surety.

When and When not can Bail be granted?

As mentioned earlier, the purpose of Bail is to ensure the appearance of an accused before the
court whenever required. However, granting bail is not advisable in all cases. For example, a
murder, if let loose, may try to intimidate the witnesses, or he may even abscond altogether. This
is very bad for the society in general and reflects bad on the justice system. Thus, various rules
and procedures have been formulated to make sure that only the deserving are released on bail.
They try to achieve a balance between the rights of the accused and the protection of the society
and effectiveness of the justice system.

The working of the bail system in India was highlighted in the case of Hussainara Khaton vs
Home Secretory, 1980. It came to the courts attention for the first time that thousands of people
were rotting in jails for 3 to 10 years for petty crimes which do not have punishment more than 6
months to an year. This was because they were unable to pay bond money for bail and the courts
were too backlogged to hear their cases. In this respect, J Bhagwati observed that the courts must
abandon the antiquated concept under which pretrial release is ordered only against bail with
sureties. Thus, in general, the intention of the justice system is to give bail and not jail before the
accused is convicted. It is said that since the accused is presumed innocence, he must be released
so that he can fight for his defense. Thus, releasing

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Bail for Bailable offences -

A person accused of a bailable offence can demand to be released on bail as a matter of right.
This is provided for by Section 436.

Section 436 - When any person other than a person accused of a non-bailable offence is arrested
or detained without warrant by an officer in charge of a police station, or appears or is brought
before a court, and is prepared at, any, time while- in the custody of such officer or at any stage
of the proceeding before such court to give bail, such person shall be released on bail.

Further, such officer or court, if he or it thinks fit, may, instead of taking bail from such person,
discharge him on his executing a bond without sureties for his appearance.

Section 50(2) imposes an obligation on the police officer to notify the detained person about his
right to get bail if he is detained on a bailable offence.

The right to bail cannot be nullified by imposing a very high amount for bail. Section 440(1)
specifically provides that the amount of bail cannot be unreasonably high.

An amendment to Section 436 mandates that an indigent person, who is unable to provide any
bail amount, must be released. If a person is unable to provide bail amount for a week, then he
can be considered indigent.

Section 436 A allows a person to be released on his own surety if he has already spent half the
maximum sentence provided for the alleged crime in jail. However, this does not apply if death
is one of the punishments specified for the offence.

Bail for Non-Bailable offences -

When a person is detained for a non-bailable offence, he cannot demand to be released on bail as
a matter of right. He can, however, request the court to grant bail. The provisions in this case are
governed by Section 437/

Section 437 - When any person accused of, or suspected of, the commission of any non-bailable
offence is arrested or detained without warrant by an officer-in-charge of a police station or
appears or is brought before a Court other than the High Court or Court of session, he may be

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released on bail. If it appears to such officer or Court at any stage of the investigation, inquiry or
trial, as the case may be, that

there are no reasonable grounds for believing that the accused has committed a non-bailable
offence, but there are sufficient grounds for further inquiry into his guilt, the accused shall be
released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond
without sureties for his appearance. A police officer or the court may also release a person from
custody if he feels that there are any special reasons. But he must record his reasons in writing.

Supreme Court, in the case of Narsimhulu, AIR 1978, has given a set of considerations that must
be given while giving bail in case of non-bailable offences. These are -

1. the nature of the crime

2. the nature of the charge, the evidence, and possible punishment

3. the possibility of interference with justice

4. the antecedents of the applicant

5. furtherance of the interest of justice

6. the intermediate acquittal of the accused

7. socio-geographical circumstances

8. prospective misconduct of the accused

9. the period already spent in prison

10. protective and curative conditions on which bail might be granted.

If, in any case triable by a Magistrate, the trial of a person accused of any non- bailable offence
is not concluded within a period of sixty days from the first date fixed for taking evidence in the
case, such person shall, if he is in custody during the whole of the said period, be released on bail
to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate
otherwise directs. If, at any time, after the conclusion of the trial of a person accused of a non-
bailable offence and before judgment is delivered, the Court is of opinion that there are

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reasonable grounds for believing that the accused is not guilty of any such offence, it shall
release the accused, if he is in custody, on the execution by him of a bond without sureties for his
appearance to hear judgment delivered. If the investigation is not done within 24 hours, the
arrested person must be bought before the court and if required, the police must make a case to
extend the detention. The court may extend the detention by 15 days. However, the detention
cannot extend more than 60 days (or 90 days, if the offence is punishable by death or
imprisonment for life), after which the accused must be released on bail. This provision applies
for bailable as well as non-bailable offence.

Section 436 A allows a person to be released on his own surety if he has already spent half the
maximum sentence provided for the alleged crime in jail. However, this does not apply if death
is one of the punishments specified for the offence.

Difference in Bail Provisions in Bailable and Non- Bailable Offences

In the matter of admission to bail, the Code of Criminal Procedure makes a distinction between
bailable and non-bailable offences. The grant of bail to a person accused of a non-bailable
offence is discretionary under S. 497 of the Cr.

P.C. (of 1898) [equivalent to S. 437 of Cr. P.C. of 1973] and the person released on bail may
again be arrested and committed to custody by an order of the High Court, the Court of Session
and the Court granting the bail. Under S. 498 of the Cr.

P.C. (of 1898) [equivalent to S. 437 of Cr. P.C. of 1973], the High Court and the Court of
Session may release any person on bail and by a subsequent order cause any person so admitted
to bail to be arrested and committed to custody. A person accused of a bailable offence is treated
differently; at anytime while under detention without a warrant and at any stage of the
proceedings before the Court

before which he is brought he has the right under S. 496 of the Cr. P.C. (of 1898) [equivalent to
S. 437 of Cr. P.C. of 1973] to be released on bail. The Cr. P.C. (of 1898) makes no express
provision for the cancellation of a bail granted under S.

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496 of Cr. P.C. (of 1898) for a bailable offence. Nevertheless, if at any subsequent stage of the
proceedings, it is found that any person accused of a bailable offence is intimidating, bringing or
tampering with the prosecution witnesses or is attempting to abscond, the High Court has the
power to cause him to be arrested and to commit him to custody for such period as it thinks fit.
This jurisdiction springs from the over riding inherent powers of the High Court and can be
invoked in exceptional cases only when the High Court is satisfied that the ends of justice will be
defeated unless the accused is committed to custody. This inherent power of the High Court
exists and is preserved by S. 561-A of the Cr. P.C. (of 1898). The person committed to custody
under the orders of the High Court cannot ask for his release on bail under S. 496 of Cr. P.C. (of
1898), but the High Court may by a subsequent order admit him to bail again. 5

The contrast between Ss. 496 and 497 of Cr. P.C. (of 1898) is apparent. Under S. 496 the
Magistrate has no discretion and he has got to enlarge the person, accused of a bailable offence,
on bail provided he is prepared to give bail; while under Section 497, the Magistrate may refuse
to enlarge him on bail in view of certain circumstances which may be brought to his notice.6

If the offence is bailable, bail must be granted under Section 496, Criminal Procedure Code (of
1898) [equivalent to S. 437 of Cr. P.C. of 1973]. But if the offence is non-bailable, the Court
should decide the question of granting the bail in the light of considerations namely, the nature
and seriousness of the offence, a reasonable possibility of the presence of the accused being
secured at the trial, a reasonable apprehension of the evidence being tampering with and the
quantum ofpunishment.7

The basic distinction as to grant of bail in bailable and non-bailable offences is that whereas a
person accused of a bailable offence has a right to be released on bail under S. 496 of J & K Cr.
P.C. (of 1989 Smvt.) [equivalent to S. 437 of Cr. P.C. of 1973] the grant of bail to a person
accused of a non-bailableoffence is in the discretion of the court under S. 497 of the said Code
[equivalent to S. 437 of Cr.

P.C. of 1973], the grant of bail to a person accused of a non- bailable offence is in the discretion
of the court under S. 497 of the said Code [equivalent to S. 437 of Cr. P.C. of1973].8

5
Ratilal Bhanji Mithani v. Asstt. Collector of Customs, Bombay, 1967 Cri LJ 1576 at p. 1577.
6
Kanubhai Chhaganlal Brahmbhatt v. State of Guajrat, 1973 Cri LJ 533 at pp. 535-36 (Guj).
7
Nirmal Kumar Banerjee v. State, 1972 Cri LJ 1582at p.1583 (Cal).

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Whenever an application for bail is made to a court, the first question that it has to decide is
whether the offence for which the accused is being prosecuted is bailable or otherwise. If the
offence is bailable, bail will be granted under S. 496 of the Code of Criminal Procedure (of
1898) [equivalent to S. 437 of Cr. P.C. of 1973] without more ado; but if the offence is not
bailable, further considerations will arise and the Court will decide the question of grant of bail
in the light of those further considerations such as, nature and seriousness of the offence, the
character of the evidence, circumstances which are peculiar to the accused, a reasonable
possibility of the presence of the accused not being secured at the trial, reasonable apprehension
of witnesses being tampered with, the larger interests of the public or the State, and similar other
considerations which arise when acourt is asked for bail in anon-bailableoffence.

Theories of Punishment

Punishment is the authoritative imposition of something negative or unpleasant on a person or


animal in response to behavior deemed wrong by an individual or group. The authority may be
either a group or a single person, and punishment may be carried out formally under a system of
law or informally in other kinds of social settings such as within a family.Negative consequences
that are not authorized or that are administered without a breach of rules are not considered to be
punishment as defined here. The study and practice of the punishment of crimes, particularly as
it applies to imprisonment, is called penology, or, often in modern texts, corrections; in this
context, the punishment process is euphemistically called "correctional process".

Fundamental justifications for punishment include: retribution, deterrence, rehabilitation, and


incapacitations such as isolation in order to prevent the wrongdoer's having contact with
potential victims. Of the four justifications, only retribution is part of the definition of
punishment and none of the other justifications are guaranteed outcomes.

If only some of the conditions included in the definition of punishment are present, descriptions
other than "punishment" may be considered more accurate. Inflicting something negative, or
unpleasant, on a person or animal, without authority is considered either spite or revenge rather
than punishment.In addition, the word "punishment" is used as a metaphor, as when a boxer
experiences "punishment" during a fight. In other situations breaking the rules may be rewarded,

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and is therefore without negative consequences, and so cannot be considered punishment. Finally
the condition of breaking (or breaching) the rules must be satisfied to be considered punishment.

Punishments differ in the degree of severity of their unpleasantness, and may include sanctions
such as reprimands, deprivations of privileges or liberty, fines, incarcerations, ostracism, the
infliction of pain, and the death penalty. Corporal punishment refers to punishments in which
pain is intended to be inflicted upon the transgressor. Punishments may be judged as fair or
unfair in terms of their degree of reciprocity and proportionality.Punishment can be an integral
part of socialization, and punishing unwanted behaviour is often part of a system of pedagogy or
behavioral modification which also includes rewards.

Case law:

State Of Madhya Pradesh vs. Munna Choubey & Anr

The respondents faced trial for alleged commission of offences punishable under Sections 450,
376(1)/109(1) of the Indian Penal Code, 1860 (in short the 'IPC') The respondent- accused
Munna was sentenced to undergo rigorous imprisonment for a period of seven years with a fine
of Rs.2,000/- with default stipulation for the offence relatable to Section 376(1). He was also
sentenced to undergo imprisonment of five years for the offence punishable under Section 450
IPC. Respondent-accused Ghanshyam was similarly sentenced. Both the substantive sentences
were directed to run concurrently. The conviction was recorded by learned Session Judge
Chhatarpur, who imposed the aforesaid sentences. The respondents-accused preferred an appeal
(Crl. Appeal No. 829/2000) in the High Court of Madhya Pradesh. By the impugned judgment,
the High Court directed the sentence to be reduced to the period already undergone. It noted that
the learned counsel for the accused persons who were the appellants before the High Court did
not challenge the finding of conviction but only prayed for reduction in sentence. The High
Court noticed that respondent-accused Munna had undergone sentence of imprisonment for a
period of about three years and six months, while respondentaccused Ghanshyam had undergone
sentence of imprisonment for a period of about two months. The only ground recorded for
reducing the sentence was that the accused persons come from rural areas. That appeared to be a
just and proper ground to the learned Single Judge to reduce the sentence to the period already
undergone.

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In support of the appeal learned counsel for the appellant-State submitted that the reduction of
sentence as done by learned Single Judge was contrary to the law as laid down by this Court in
several cases. While dealing with the offence of rape which was established, the direction for
reduction of sentence should not have been given on the specious reasoning that the respondents-
accused belonged to the rural areas.

Learned counsel appearing for the respondents submitted that the alleged occurrence took place
nearly six years back and after considering the relevant aspects the learned Single Judge had
directed reduction in sentence restricting it to the period already undergone. This Court should
not interfere in the matter particularly under Article 136 of the Constitution of India, 1950 (in
short the 'Constitution').

The crucial question which needs to be decided is the proper sentence and merely because of
lapse of time or that the accused belonged to rural areas, the accused is to be waived from
undergoing it. It is to be noted that the sentences prescribed for offences relatable to Section 376
are imprisonment for life or up to a period of 10 years.

The law regulates social interests, arbitrates conflicting claims and demands. Security of persons
and property of the people is an essential function of the State. It could be achieved through
instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law
must find answer to the new challenges and the courts are required to mould the sentencing
system to meet the challenges. The contagion of lawlessness would undermine social order and
lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of
law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone
of the edifice of "order" should meet the challenges confronting the society. Friedman in his
"Law in Changing Society" stated that, "State of criminal law continues to be as it should be a
decisive reflection of social consciousness of society". Therefore, in operating the sentencing
system, law should adopt the corrective machinery or the deterrence based on factual matrix. By
deft modulation sentencing process be stern where it should be, and tempered with mercy where
it warrants to be. The facts and given circumstances in each case, the nature of the crime, the
manner in which it was planned and committed, the motive for commission of the crime, the
conduct of the accused, the nature of weapons used and all other attending circumstances are
relevant facts which would enter into the area of consideration. For instance a murder committed

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due to deep-seated mutual and personal rivalry may not call for penalty of death. But an
organised crime or mass murders of innocent people would call for imposition of death sentence
as deterrence.

In Dhananjoy Chatterjee v. State of W.B. (1994 (2) SCC 220), this Court has observed that
shockingly large number of criminals go unpunished thereby increasingly, encouraging the
criminals and in the ultimate making justice suffer by weakening the system's creditability. The
imposition of appropriate punishment is the manner in which the Court responds to the society's
cry for justice against the criminal. Justice demands that Courts should impose punishment
befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not
only keep in view the rights of the criminal but also the rights of the victim of the crime and the
society at large while considering the imposition of appropriate punishment.

In order to exercise the discretion of reducing the sentence the statutory requirement is that the
Court has to record "adequate and special reasons" in the judgment and not fanciful reasons
which would permit the Court to impose a sentence less than the prescribed minimum. The
reason has not only to be adequate but also special. What is adequate and special would depend
upon several factors and no strait- jacket formula can be indicated. What is applicable to trial
Courts regarding recording reasons for a departure from minimum sentence is equally applicable
to the High Court. The only reason indicated by the High Court is that the accused belonged to
rural areas. The same can by no stretch of imagination be considered either adequate or special.
The requirement in law is cumulative.

Considering the legal position as indicated above the High Court's order is clearly unsustainable
and is accordingly set aside. The respondents are directed to surrender to custody forthwith to
serve the remainder of sentence. The appeal is allowed to the extent indicated.

Conclusion:

There is an attempt to portray punishments as a method of inflicting of unpleasant circumstances


over the offender.

Though certain theories like the reformative and preventive rely upon humanitarian modes of
punishment, but these has a weakness against the hardcore criminals.

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Punishments such as the retributive and deterrence though the use of fear as an instrument to
curb the occurrence of crime helps in controlling the criminals up to a certain extent. As these
employ the idea of revenge and vengeance these are much harsher than others.

We all know that truth is stranger than fiction and so is the practice of these theories. Though
prisons are meant to be the place where the criminals would be corrected or for that case deterred
from committing a wrong in the future, but the present day witnesses the prisons to have become
redundant in their objective and becoming sites of breeding for hardcore criminals. Furthermore
the techniques applied in executing the punishment are not fool proof, for e.g. the criminals are
able to carry on their illegal activities even during serving the period of sentence. Though in
theory all of the punishments discussed above may seem perfect if used collectively.

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