CRIMINOLOGY, PENOLOGY & VICTIMOLOGY

MODULE 1

CRIMINOLOGY- NATURE SCOPE AND IMPORTANCE

The success in eliminating crimes from society which is otherwise known as Social Defence, largely depends
on the efficacy of criminal law administered in a particular country. That is the reason why past few decades
have witnessed revolutionary changes in criminological thinking and frequent shifting of criminal policies.
The ultimate object is to minimise incidence of crime by an effective administration of criminal justice through
agencies such as the court, police, prison, reformatories and other modern correctional institutions.

The problem of crime control essentially involves the need for a study of the forces operating behind the
incidence of crime and a variety of co-related factors influencing the personality of the offender. This
eventually led to development of modern criminology during the preceding two centuries. The purpose of
study of this branch of knowledge is to analyse different aspects of crime and device effective measures for
treatment of criminals to bring about their resocialisation and rehabilitation in the community. Thus,
criminology as a branch of knowledge has a practical utility insofar as it aims at bringing about the welfare of
community as a whole. The principles of criminology serve as effective guidelines for formulation of penal
policy.

The modern clinical methods and the reformatory measures such as probation, parole, indeterminate sentence,
open prisons and other correctional institutions are essentially an outcome of intensive criminological
researches during the twentieth century.

DEFINITION OF CRIMINOLOGY

The term ‘criminology’ is derived from the combination of two Latin words crimen and Greek word logia.
Etymologically, it stands for ‘scientific study of the nature, extent, causes and control of criminal behaviour’.

According to Coleman and Norris, criminology is the analysis of the nature of crime, the perpetrators of crime,
the causes of crime, the formulation of criminal laws and law enforcement and the ways the crime can be
controlled.

Donald Taft preferred a simplistic definition of criminology and observed that it includes a scientific analysis
and observation of crime and criminals whereas penology is concerned with the punishment and treatment of
offenders. He pointed out that the development of criminology has been much later than that of penology
because in early periods, the emphasis was on punishment and treatment of offenders rather than scientific
investigation into causation of crime.

Sutherland has come out with a more comprehensive definition of criminology. He defined criminology as
“the body of knowledge regarding delinquency and crime as a social phenomenon and it includes within it,
the process of making laws, breaking laws, and of reacting towards the breaking of laws. The objective of
criminology is the development of a body of general and verified principles and other types of knowledge
regarding this process of law, crime and reaction to crime”.

NATURE AND SCOPE

Criminology seeks to study the phenomenon of criminality in its entirety. The science of criminology may
further be split into two, namely, (1) theoretical or pure criminology and (2) applied or practical criminology.

Prof. W.A. Bonger preferred to study theoretical criminology under the following sub heads:

1. Criminal Anthropology: It seeks to understand the personality of the offenders in physical terms.
Cesare Lombroso was the first to propound this view which eventually led to the origin of modern
criminology. He was first in point of time to explain criminal behaviour in terms of physical
characteristics of the offender and emphasised that criminals were different physically from normal
persons and possessed inferior characteristics. Though this view is no longer supported by modern
criminologists but it does have its theoretical importance.
2. Criminal Sociology: It is based on Sutherland’s theory of’ differential association’ which explains
criminal behaviour as a process of learning through association with other criminals. However, this
theory does not adequately take into account the personality traits or psychological variables in
criminal behaviour.
3. Criminal Psychology: It seeks to correlate criminality to emotional aspects of human nature.
4. Criminal Psycho-neuro-pathology – This branch of criminology attributes criminality to functional
deviations and mental conflicts in the personality of the offender. The factor such as inferiority
complex, frustration, depression, anxiety, etc. may lead a person to commit crime. Dr. Glueck and
Freud are the main exponents of this view.
5. Penology : It concerns itself with the various aspects of punishment and penal policies. The various
mechanisms of punishing the offenders are also studied under penology.
6. Victimology: Towards the end years of the 20th century, victimology has emerged as a new branch of
criminology which deals exclusively with victims of crime. It primarily concerned with the study as
to why and how people fall a victim to crime and how they can be helped against abuse of power or
criminal acts of the offenders through access to criminal justice. The study also outlines the steps that
can be taken to prevent victimisation against crimes and legal remedies which are available to victims
of crime.
Applied criminology on the other hand, includes the study of criminal policy which is founded on solid
derivative conclusions.

Besides these two, there is yet anther branch of criminology called criminalistics which connects the police-
techniques of crime investigation and detection. It provides very useful material for study and understanding
o criminal justice administration from the point of view of field officers whose main pre-occupation is to deal
with the law and procedure relating to investigation and prosecution of criminal cases.

Dr. Kenny opines that criminology is a branch of criminal science which deals with crime causation, analysis
and prevention of crimes.

Criminology as a branch of knowledge is concerned with those particular conducts of human behaviour which
are prohibited by society. It is therefore a socio-legal study which seeks to discover the causes of criminality
and suggests remedies to reduce crimes,

Sociologists, however, differ in their view about criminology. In their opinion, every anti-social act emanates
from some criminogenic tendency which needs to be cured by society. Thus, they attempt to correlate the
concept of crime with other sociological and environmental factors.

However, judicial approach to criminology suggests that an act to become a crime must conform to two
cardinal principles of criminal liability, namely:

(i) Nullum crimen sine lege,

(ii) Nulla poena sine lege

According to the first , no one is held criminally liable unless he has done an act which is expressly forbidden
under the existing criminal law of the land and has a reprehensible state of minds to do it. The second principle
suggests that no one can be punished for an act unless it is made punishable under the law.

A universally acceptable definition of criminology seems to be rather difficult. Criminologists have always
differed in their views about approach to this subject. Legalistic approach to criminology is altogether different
from that of sociologists, psychologists, biologists or economists.

Some authorities suggest that criminology deals with the discoursal study of all anti-social acts which are
disapproved by the society. But it may be pointed out that the term ‘anti-social’ itself is very comprehensive
and wide in its scope. There are several conditions which may ultimately contribute to the incidence of crime.
In case of juvenile delinquency, a child left without proper care and attention is often not able to adjust himself
or herself to the accepted norms of society. It is, therefore, the concern of a sociologist to find out as to what
conditions or factors have really contributed to the delinquent nature of the child. Here again, purely
sociological approach shall not serve the desired purpose unless other personality traits of the delinquent are
also taken into consideration to determine his/her guilt.
It was once believed that some persons inherit devilish tendencies by birth. They were , therefore, known as
born criminals or criminals by nature and were considered incorrigibles. The only way to keep them off was
their complete elimination from the society. Later, by the mid-eighteenth century Beccaria, the pioneer of
modern criminology advocated his classical theory of criminal behaviour which was founded on ‘free will’ of
individual. Through a series of systematic researches he successfully exploded the theory of born criminals
and established that everyone is master of his ownself and is free to act as he wants. Thus, a man resorts to
criminal act out of his own intelligence and free will.

Beccaria’s ‘ free will’ theory was, however, subsequently challenged by positivists, notably Lombroso and
Tarde who suggested that man is not self-determining agent free to act as he likes but is fundamentally a
biological organism. It is, therefore , the biological consideration which determines his acts and behaviour.
Every person, as a biological creature tries to adjust himself to social environment. It is with this pre-
supposition that sociologists precipitated the theory of ‘Differential Association’ by correlating crime to
environment. With the advance of knowledge and development of criminal science, it was gradually realised
that no one is a born criminal but it is the circumstances that make him so; not because he wants to be a
criminal but he is rather forced to lend into criminality.

Later, sociologists started gauging into the real cause of crime which may be etiological, psychological,
economic, political, cultural or social. Thus, it cannot be denied that environment plays a vital role in crime
causation.

Prof . Sutherland characterised crime as a symptom of social disorganisation. In his view, just as the pain in
human body is the notification of disorganisation of some organ of the human body, so is the crime with
society. Thus, sociologically ‘ crime’ is a symptom of maladjustment in the society.

Modern criminologists lay great emphasis on multiple causation because they are convinced that crime is a
social phenomenon, the political society reacting to it through punishment, treatment or preventive measures
and this sequence of interaction is the ultimate object of criminology.

Thus, it may be stated that criminology , contrary to popular perception is not the study of how to solve the
problem of crimes. Instead, it is the study of the psycho-socio-economic factors that make a criminal and how
people are processed by the criminal justice system once they are arrested and tried as offenders under the
law. It is the study of what happens to a person once he or she comes into the criminal justice web and how to
integrate him in mainstream of society.

Criminology provides an opportunity to study and examine the working of various institutions dealing with
crime, law and justice such as police, courts, lawyers, prisons, etc. from a rights-based perspective. It provides
the theoretical underpinnings on human rights and the criminal justice system and also deals with area related
to juvenile justice, gender-based violence, transnational crimes, terrorism and role of State and correctional
agencies in prevention of crime and rehabilitation of offenders. It is thus essentially a multi-faceted and multi-
dimensional branch of knowledge dealing with crimes and criminal.
OBJECTIVE OF CRIMINOLOGY

The primary object of criminology is to study the sequence of law-making, law-breaking and reaction to law-
breaking from the point of view of efficacy of law as a measure of crime control. It focuses on causation of
crime various factors that leads a person to criminality and prevention of crime and criminals. It is a field of
study, which is related to a variety of branches of social sciences such as sociology, economics, biology,
psychology, topography, political set up, statistics, etc. and therefore, essentially inter-disciplinary in nature.

The ultimate objective of criminological studies is to “curb criminality within the human being by effective
administration of criminal justice and not the humanity with the criminal”.

IMPORTANCE OF CRIMINOLOGY

Some of the significant attributes of criminology are:

(i) The most significant aspect of criminology is its concern for crime and criminals. It presupposes
the study of criminal with basic assumption that no one is born criminal. It treats reformation as
the ultimate object of punishment while individualisation the method of it. Most criminologists
and penologists generally agree that every criminal is corrigible if offered adequate opportunities
through treatment methods.
(ii) As Donald Taft rightly puts it, the study of criminology also offers a background for profession
and an opportunity for social workers. The police, the lawyers, attorneys, judges, jurors, probation
officers, detectives and other specialists such as psychologists, psychiatrists and sociologists, etc.
need perfect knowledge of criminology and administrative machinery for criminal justice system
for their professional pursuits.
(iii) Criminology also seeks to create conditions conducive to social solidarity inasmuch as it tries to
point out what behaviours are obnoxious and anti-social. It tries to convince the offenders through
punitive sanction that anti-social conduct on their part is bound to entail them punishment, misery,
misfortune and dis-repute in society. The reformative treatment offered to first offenders, juvenile
delinquents and insane criminals is intended to reform them as law-abiding members of society.
Various correctional methods are devised to achieve this purpose. The ultimate object is to render
a crime-free society as far as possible with a view to attaining social harmony,
(iv) It is further to be noted that with the advance of scientific knowledge and technology, the
complexities of life have also considerably multiplied. This has led to enormous increase in crime
rate and many new crimes have emerged. This in turn has led criminal law administrators to devise
new methods and techniques to tackle these problems through intensive scientific researches. Thus,
 modern criminologists keep themselves acquainted with the new criminological developments and
work out strategies to tackle these intricate problems for the protection of society.

SCHOOLS OF CRIMINOLOGY

PRE-CLASSICAL SCHOOL

The pre-classical school is commonly known as the demonological school for the sole reason that during the
17th century, the demonological theory flourished in Europe with the dominance of the church and religion.
Since during this time, the scientific explanation was not given preference and, concept of crime was vague
and based on superstitions and myths.

Hence, the explanations for criminal behaviour were sought through spirits, demons and unknown power. The
principle behind such a concept was that a man commits a crime due to the stimulus of some external force or
an evil spirit which is beyond the control and understanding of man and that he was possessed by such a spirit.
The wrath of God and the natural agencies were considered to give punishment to the offenders. The offenders
were subjected and had to go through battles, pelting of stones and was believed that no harm would be caused
if the offender was innocent which was termed as the Ordeal test and was a method of torturing or subjecting
the offender to severe torture to determine whether or not such an offender was guilty of the offence which he
was charged with. The justification advanced for these rituals was the familiar belief that "when the human
agency fails, recourse to divine means of proof becomes most! inevitable". However, such practices were the
most irrational according to the modern mind, they were universally accepted.

This demonological theory of criminality or the pre-classical was based upon the omnipotence of spirit, which
they regarded as a divine and superior power. The offender was made victim to the worships, sacrifices and
ordeals by water and fire which were usually prescribed to determine the guilt of the offender. However, as
the times developed people started analysing and questioning the demonological theory which led to the
scientific development and therefore, led to the formation of the classical school of criminology.

THE CLASSICAL SCHOOL

The pioneers and the scholars of the classical school of criminology are Cesare Beccaria, Jeremy Bentham
and Romilly. The main belief of this school is that all men are self-seeking and therefore they attempt to
commit the offence on account of the free will and not on account of being possessed by an evil spirit.
According to the theory of this school, men possess free will and therefore, act as per their pleasure and in
order to cause pain (hedonism) to the victim. The theory devised by the pre-classical school was rejected.
Beccaria, a renowned criminologist proposed that, the punishment of a crime that is decided should be
proportionate and in accordance with its seriousness. This thought was based on the simple reason that torture
was inappropriate and thus allowed the weak to incriminate and the strong would be found innocent before
the adjudication because of social position. The ideology of Beccaria was supported by various criminologists
that emphasises upon the criminal rather than the crime. The classical school focuses on the principle of
deterrence instead of the retributive theory.

The main tenets of classical school of criminology are noted below:

(i) Man’s emergence from the State’s religious fanaticism involved the application of his reason as a
responsible individual. The theory is based on the assumption that an individual can control his
conduct by exercising his power of will and mind. Thus, human behaviour including the behaviour
is ‘self-generated’ and ‘self-control’ The fear of punishment can bring a change in human ‘will’
and persuade him to desist from committing crime.
(ii) It is the act of an individual and not his intent which forms the basis for determining criminality
within him.
(iii) The classical writers accepted punishment as a principal method of infliction of pain, humiliation
and disgrace to create ‘fear’ in man to control his behaviour.
(iv) The propunders of this school, however considered prevention of crime more important than the
punishment for it.
(v) The advocates of classical school supported the right of State to punish the offenders in the interest
of public security. Relying on hedonistic principle of pain and pleasure, they pointed out that
individualisation was to be the basis of punishment.
(vi) The exponents of classical school further believed that the criminal law primarily rests on positive
sanctions. They were against the use of arbitrary powers of judges.

The major drawback of the classical school was that it was based upon an abstract presumption of free will
and relied solely on the act (i.e., the crime) without devoting any attention to the state of mind of the criminal
or on the criminal. Another shortcoming of this school was that they prescribed equal punishments for same
offence and created no distinction between first offenders and habitual criminals irrespective of the gravity of
the offence. However, the greatest achievement of this school of criminology lies in the fact that it recognized
and suggested for the development of a substantial and robust criminal policy which would overcome the
barrier of allotting arbitrary punishments. Due to the theory devolved by Beccaria the earlier concepts of crime
and criminals which were based on religious beliefs and myths were denounced and therefore, the emphasis
was upon the criminal rather than the crime which eventually led to the need for concentrating on the
personality of an offender in determine the causation of crime.

NEO-CLASSICAL SCHOOL

The 'free will' theory developed by the classical school did not survive for too long because of ignoring the
individual differences under certain situations and treating first offenders and the habitual alike irrespective
of the crime committed. The neo-classists asserted that certain categories of offenders such as minors, idiots,
insane or incompetent had cannot be treated equally as a prudent man in matters of punishment irrespective
of the similarity of their criminal act because these persons were incapable of understanding the nature or the
conduct of the act committed. The Neo-classical school was greatly appreciated because of evolution of the
theory of differentiating the aforementioned categories from the other criminals on the basis of their mental
depravity was indeed a progressive step.

Thus, it would be seen that the main contribution of neo-classical school of criminology lies in the fact that
the theory of classical school and suggested that an individual might commit criminal acts due to certain
justifying circumstances and such situations must be taken under consideration while discharging the criminal
liability. Therefore, along with the criminal act, the other factors such as the, the personality of the criminal,
the motives, previous life, history, general character, etc., should not be lost while assessing his guilt. Today’s
jury system has inculcated the approach of the Neo-classists by granting leniency to the aforementioned
classes.

During the classical era, the imposition of sentences was considered to be a routine exercise because the law
ordained specific punishment for specific offences and judge had no discretion except to award the prescribed
punishment. However, the neo-classists for the first time recognised the need for variations in sentencing by
Judges depending on sex, age, mental conditions, etc. of the offender. The neo-classists asserted that certain
categories of offenders such as minors, idiots, insane or incompetent had to be treated leniently in matters of
punishment irrespective of similarity of their criminal act because these persons were incapable of appreciating
the difference between right and wrong.

This tendency of neo-classists to distinguish criminals according to their mental depravity was indeed a
progressive step inasmuch as it emphasised the need for modifying the classical view.

The main tenets of neo-classical school of criminology can be summarised as follows:

(i) Neo-classists approached the study of criminology on scientific lines by recognising that certain
extenuating situations or mental disorders deprive a person of his normal capacity to control his
conduct. Thus, they justified mitigation of equal punishment in cases of certain psychopathic
offenders. Commenting on this point, Prof. Gillin observed that neo-classists represent a reaction
against the severity of classical view of equal punishment for the same offence.
(ii) Neo-classists were the first in point of time to bring out a distinction between the first offenders
and the recidivists. They supported individualisation of offender and treatment methods. Though
the ‘act’ i.e., the criminal act still remained the sole determining factor for adjudging criminality
without any regard to the intent, but the neo-classists focussed at least some attention on mental
causation indirectly.
(iii) The advocates of this school started with the basic assumption that man acting on reason and
intelligence is a self-determining person and therefore is responsible for his conduct. But those
lacking normal intelligence are irresponsible to their conduct as they donot possess the capacity to
 distinguish between good or bad and should be therefore treated differently from the responsible
offenders.
(iv) Although they believed that all criminals, whether responsible or irresponsible must be kept
segregated from the society.
(v) It is though this school that attention of criminologists was drawn for the first time to the fact that
all crimes do have a cause.
(vi) Neo-classists adopted subjective approach to criminology and concentrated their attention on the
conditions under which an individual commits crime.

Thus, the main contribution of neo-classical school is that it came out with certain concessions in the ‘free
will’ theory of classical school and suggested that an individual might commit criminal acts due to certain
extenuating circumstances which should be duly taken into consideration while awarding punishment.

As a shortcoming, the exponents of this theory believed that the criminal, whether responsible or irresponsible
is a menace to society, and therefore needs to be eliminated from it.

POSITIVE SCHOOL

The earlier schools focussed on the crime rather than the criminal therefore, this school was the beginning of
a new era wherein the focus was on the criminal and the various reasons leading to the causation of crime.
The real cause of criminality lay in anthropological features of the criminal which helps in demonstrating the
functioning of brain in order to establish a corelationship between criminality and the structure and functioning
of brain. The main exponents of this school were three eminent Italian criminologists, namely, Cesare
Lombroso, Raffaele Garofalo and Enrico Terri and therefore, it is known as the Italian School of Criminology.

Cesare Lombroso (1836-1909)

The first attempt to understand the personality of offenders in physical terms was made by him, who is
regarded as the originator of modern criminology. He was the first to employ scientific methods in explaining
criminal behaviour and shifted the emphasis from crime to criminal.

Lombroso adopted an objective and empirical approach to the study of criminals through his anthropological
experiments. After an intensive study of physical characteristics of his patients and later on of criminals, he
came to a definite conclusion that criminals were physically inferior in standard of growth and therefore,
developed a tendency for inferior acts.

Lombroso’s theory devised that there were 3 kinds of criminals:

(i) The Atavists or hereditary criminals. —Lombroso also termed them as born criminals. In his opinion born-
criminals could not refrain from committing crimes because they aspect of criminality was hereditary in nature
and he termed such a class at the Atavists. He, therefore, considered these criminals beyond reformation.
(ii) Insane Criminals. —The second category of criminals according to Lombroso consisted of insane
criminals who are unable to understand the nature and conduct of their act on account of mental depravity or
disorder.

(iii) Criminoids. —Lombroso devised the third category of criminals which were deemed as criminoids who
had devised a physical criminal type and had a tendency to commit crime in order to overcome their inferiority
complex in order to survive in the society.

Even though, Lombroso’s theory was not accepted in the earlier centuries but was widely appreciated however,
with the focus being shifted upon the criminal rather than the crime, the Atavist theory of Lombroso was
rejected upon the sole reason that no criminal is beyond reformation.

It must however be stated that at a later stage Lomroso himself was convinced about the futility of his theory
of atavism and therefore extended his theory of determinism to social as well as economic situations of
criminals. Thus, he was positive in method and objective in approach with subsequently paved way to
formulation of multiple-causation theory of crime by the propounders of sociological school of criminology.

Though, the importance of Lombroso’s work lies in its scientific methodology and his rejection of free- will
theory.

Enrico Ferri (1856-1928)

The major contribution of Ferri to the field of criminology is his theory of "Law of Criminal Saturation". This
theory presupposes that the crime is basically the produce of three main factors: —

(1) Physical or geographical;

(2) Anthropological; and

(3) Psychological or social.

Thus, Ferri emphasised that criminal behaviour is an outcome of a variety of factors which have effect upon
such an offender and instigate him to commit a certain offence. According to him social change, which is
inevitable in a dynamic society; results in disharmony, conflict and cultural variations but change cannot be
avoided.

Ferri classified the criminals into 5 types mainly:

(1) born criminals;

(2) occasional criminals;

(3) passionate criminals;

(4) insane criminals; and

(5) habitual criminals.

He suggested an intensive programme of crime prevention and recommended a series of measures for
treatment of offenders and therefore, believed in the rehabilitation and reformation of the criminal.

Raffaele Garofalo ( 1852-1934)

Raffaele Garofalo was one of the three main exponents of positive school of criminology, he emphasised that
lack of pity generates crimes against person while lack of probity leads to crimes against property. He stressed
the need for a closer study of the circumstances and living condition of criminals. He firmly believed that a
criminal is a creature of his own environment. He placed criminals mainly into four categories, namely:

(1) murderers whom he called “endemic” criminals lacking sentiments of pity and probity

(2) violent criminals who are affected by environmental influences such as prejudices of honour, politics and
religion indicating lack of pity

(3) criminals lacking in sentiment of probity such as thieves , and

(4) lascivious or lustful criminals who commit crimes against sex and chastity. They have deficient moral
perception.

Garofalo was not very optimistic about reformation of offenders. He therefore, strongly pleaded for
elimination of habitual offenders who were incapable of social adaptation as a measure of social defence.

Gabriel Tarde (1843- 94) was a critic of positive school of criminology. He pointed out that the law of
insertion and imitation was responsible for the incidence of crime. The members of society are prone to
imitate the behaviour of their associates. As regards crime, the beginners have a tendency to imitate the acts
of habitual criminals and thus they lend into criminality. Particularly, the impact of movie, cinema, and
television is so great on teenagers that it perverts their mind and actions which eventually makes them
delinquents. Thus, ther is considerable truth in Tarde’s assertion that, “crime, like other social phenomenon
starts as a fashion and becomes a custom”. Trade also classified criminals into urban and rural types and
expressed a view that crimes in urban areas are far more serious in nature than those in rural places.

AN APPRAISAL OF POSITIVE SCHOOL OF CRIMINOLOGY

It would be seen that the positive school of criminology emerged essentially out of the reaction against earlier
classical and neo-classical theories. The advocates of this school completely discarded the theories of
omnipotence of spirit and free will on the ground that they were hypothetical and irrational.

Alternatively, they attributed criminality to anthropological, physical and social environment. The greatest
contribution of positive school to the development of criminal science lies in the fact that the attention of
criminologists was drawn for the first time towards the individual. , that is personality of criminal rather than
his act(crime) or punishment. This certainly paved way for the modern penologist to formulate a criminal
policy embodying the principle of individualisation as a method and reformation. Thus, positivists introduced
the methodology and llogic of natural science in the field of criminology.

With the predominance of positive school, the emphasis was shifted from penology to criminology and the
objects of punishment were radically changed inasmuch as retributory methods were totally abandoned. The
positivists suggested elimination of only those criminals who did not respond favourably to extra- institutional
methods.

5. CLINICAL SCHOOL OF CRIMINOLOGY

With the development of human psychology there is greater emphasis on the study of emotional aspect of
human nature. This branch of knowledge has enabled modern criminologists to understand the criminal
behaviour of offenders in its proper perspective.

Prof Gillin, therefore, rightly remarked that the theory of modern clinical school on the side of crimogenesis
presupposes offender as a product of his biological inheritance conditioned in his development by experiences
of life to which he has been exposed from infancy up to the time of the commission of crime. Thus, clinical
school takes into account variety of factors.

It further suggests that the criminals who do not respond favourably to correctional methods such as probation,
parole, reformatories, open-air camps, etc. Thus, briefly stated, individualisation became the cardinal principle
of penal policy in modern penology.

The main theme of clinical school is that personality of man is a combination of internal and external factors
therefore, punishment should depend on personality of the accused. This is known as correctional trend of
reformation through individualisation.

6. SOCIOLOGICAL SCHOOL OF CRIMINOLOGY

Sociological School of criminology seeks to locate causation of crime in social environment. Tarde was the
first to reject the anthropological approach of positivists and held that crimes were the outcome of human
tendency to imitate others. Sociologist however carried their researches and attempted to co relate variations
in crime rate to changes in social organisation. They successfully established that other factors such as
mobility, culture, religion, economy, political ideologies, density of population, employment, situations etc
have a direct bearing on the incidence of crime in a given society. Placing reliance on this multiple courses
Sutherland sort to explain various processes through which a person becomes criminal. In his theory of
Differential Association he suggested that human personality and culture are directly related and a person
becomes a criminal mostly by the chain of circumstances in which he associates or moves. It is for the reason
that sociological school has often been characterised as a rational School of criminology which recommends
the application of humanitarian methods for treatment of offenders. The persons prone to criminality should
be corrected through persuasive methods rather than traditional punitive methods.
However, the advocates of recent 'multiple factor theory' while explaining causations of crime contemplate
that crime is a product of great variety of factors which cannot be reduced into general propositions. In other
words, no specific theory of criminal behaviour is ever possible. This crimes are caused due to combination
of a number of factors or circumstances.

7. CONTROL THEORY OF CRIME

The main propounder of this theory Durkheim believed that crimes generate when social and personal controls
that prevent most people from engaging in criminality, weakens. In other words weakening of bond between
individuals and group is an indication that social control is not working.

8. MODERN CRIMINOLOGY

There seems to have been a transformation of criminological views regarding somewhat sceptical question of
criminal accountability in recent times.
Modern critics attack the traditional criminological view on the ground that there search for characteristic
differences between the class of criminals and the class of non criminals rest upon erroneous assumption. The
proponents of modern criminology attempt to explain criminality in terms of social conflict. Engels (1971)
pointed out that resentment among the deprived class of society due to their exploitation and demoralisation
was one of the reasons for growing criminality. Therefore there was a need to change the whole of the social
and economic structure of society. Thus, modern criminology attribute societal reasons for general criminality
and suggest a pragmatic approach to the resolution of the problem.
The advocates of modern criminology firmly believe that distinction between criminals and non criminals is
the direct outcome of a mistaken notion of labelling certain individual offenders as 'criminal types'.
Modern criminologists prefer to identify the criminal with a particular social type who has been a victim of
well known inequalities between social classes, private wealth, private property social power and life chances.
Thus there is nothing like 'criminal type' as suggested by traditional criminologists.

9. SOCIAL LEARNING THEORY

Burgess and Akers came out with a new social learning theory mainly based on combination of Sutherland's
theory of Differential Association and Psychological concept of crime. The theory is founded on learning
process operating in social structure, interaction and situation which tend to make persons law confirming or
law-deviant. According to Ronald L. Akers, the factors which account for generating crime and deviant
behaviour or otherwise mainly include:
(1) differential association
(2) individual's own values and perceptions
(3) individual's own experience and capacity to anticipate probable consequences of his act or behaviour,
which, Akers termed as 'differential reinforcement', and
(4) individual's observation about how others behave in a given situation especially following the norms or
values of leaders, elders and family members. This is analogous to what Tarde termed as imitation.
The social learning theory mainly focuses on social behaviour approach and reciprocal interaction between
cognitive and environmental determinants of human behaviour.

Mathew Robinson has expressed a view that crime causation can better be explained by integrating different
theories propounded by various criminologists. He prefers to call it in the Integrated Theory of Anti- social
Behaviour which is based on the assumption that -
(1) individual perception regarding values and morality makes a person choose his behaviour whether he
should commit crime or keep away from it.
(2) This choice is influenced by factors which are at times beyond his control.
(3) The choice is further regulated by risk factors or protective measures which can enable him to escape
detection and prosecution
(4) the groups, organisations and surroundings of the society in which the person lives and moves about also
influence his decision to commit crime or to refrain from law- breaking.

Thus, Robinson firmly believed that no single theory could fully explain crime causation as criminality is the
result of integration of variety of socio- psychological factors.

However, the current theory of Indian criminal jurisprudence is based on 7 fundamental notions such as the
principle of legality, mens rea , conduct, consequence of mens rea and conduct, harm, causation and
punishment. With the change in time the criminal law has radically changed and the concept of criminal
liability therefore faces new problems. Consequently there is need for complete replacement of punishment
by recent rehabilitative measures for certain categories of offenders so as to make the administration of
criminal justice efficacious and meaningful.
SOCIAL INSTITUTIONS & CRIME CAUSATION THEORIES

SOCIAL INSTITUTIONS AND CRIME CAUSATION

(i) FAMILY
Family plays an extremely important role in the evolution of a child’s personality and behaviour. Lack of
affection to the child from the family is considered to be one of the prime reasons for the anti-social behaviour
in a child. Death of the parents, divorce or desertion, another instance is “broken family” which refers to the
parents and children not living together, or either of parents not living with the children, “size” of the family.
According to psychologists, the formation of the basic personality of a child is complete in the first ten or
twelve years of his life and the family’s impact is exclusive. ‘Broken family’ play a significant role in
increasing juvenile delinquency.
(ii) RELIGIOUS CONTROL
Interrelation between religion and delinquency may be viewed from two angles ie, religion is considered in
its positive sense as a source of constructive morality or as a negative instrument in terms of its undesirable
leadership, distorted practices and abuse due to corruption and commercialisation.
According to sociologists, the influence of religion in the first sense plays a significant role in preventing
criminal behaviour by moulding the individual personality. In this sense, it can also be used as an instrument
of reformation of a delinquent. In its negative aspect, it may promote delinquent behaviour among young
persons as a result of their disillusionment with the system based on hypocrisy and dishonesty.
(iii) FORMAL EDUCATION AND DELINQUENCY
After family, it is the school which provides the most important oppurtunity to a child for the development of
his social attitudes. School is the place where a child spends most of its time. It also affects a child’s mental
psyche and it builds the reasoning, thinking and learning abilities of the child to another level as compared to
the before school phase of a child.

Factors such as low socioeconomic status of the family, low intelligence, lack of motivation and poor school
performance, emotional instability and personality defects, ineffective adjustment of instruction and subjects
to pupils needs, lack of participation in extracurricular activities, disinterest in subjects, unsympathetic attitude
of parents to education, are the important factors affecting the attitudes towards school.

(iv) ECONOMIC FACTORS AND CRIME

Money and economic stability have been traditionally considered to be one of the main reasons for crime
causation. A large number of crimes are done to gain some or the other monetary benefit. Poverty play an
important role in delinqueny and the capitalistic system may also contribute to poverty

(v) STATE AND CRIME

 • State is the external institution established with legitimate physical force to regulate, supervise and
control public and private affairs of the individual.Aristotle - “Man is a social animal and by nature,
he is a political being.” The existence of life is merely a skeleton without liberty of speech and
expression provided to us by us. The people are also bound by their obligations to perform their duties
for the welfare of society at large.

THEORIES OF CRIME CAUSATION

Crime has been a baffling problem ever since the dawn of human civilization and man's efforts to grapple with
this problem have only partially succeeded. There is hardly any society which is not beset with the problem
of crime and criminality . As rightly pointed out by Emile Durkheim, crime is a natural phenomenon which
constantly changing with the social change.
Subjective aspect of crime causation includes anthropological, biological, physiological and psychiatric study
of the offenders. The objective approach which insists on analysis of socio-economic, ecological,
topographical and cultural environment under which crimes usually generate.
Heredity and Crime
Lombrosian anthropologists through their biological and anthropological researches succeeded in establishing
a correlation between heredity of the criminal and his criminogenic tendencies. Lombroso was the first
criminologist to correlate crime with the heredity of the criminal.
His influence on contemporary criminologists was so great that they also accepted Lombroso's view that
heredity was the sole cause of criminal behaviour of the offender. Lombroso asserted that there are certain
criminals who imbibe criminality by birth. He called them atavists and held that such criminals were
incorrigibles. He attributed this atavistic tendency in them due to hereditary influences. Modern researches
have however shown that heredity have little effect on criminality. It must be stated that Lombrosian theory
equating propensity to commit crime with physical built-up has long been discarded. Even Lombroso, in his
subsequent writings had accepted that his theory was too simplistic.

Mental Disorder and Criminality

• The term 'mental disorder' is also referred to as mental abnormality denotes that the mind is in a state
of confusion or is suffering from some disease. Studies have shown that there is no evidence to prove
that the crimes committed by criminals were induced by their mental disorder.
• Be that as it may, law does take mental illness or insanity into account while determining the criminal
liability of the offender. It is also taken into account in sentencing offenders where they are subjected
to clinical treatment rather than being sentenced. Insanity has been recognised as a defence in most
penal laws.
 • The rules recognising the defence of insanity in criminal law were first laid down in 1843 in the historic
M' Naghten's case.
• M' Naghten's Rule of Criminal Responsibility
In M' Naghten's case' a political maniac who wanted to shoot Britain's Foreign Minister, Robert Peel instead
killed his Private Secretary, Drumond on 20th January, 1843 in daytime. The killer was declared to be mentally
insane by the medical experts. The case involved two important issues before the Court.
The point raised on the one hand, was that an insane person is incapable of distinguishing between right and
wrong, while on the other hand, the argument that public safety demanded that this plea should not be readily
accepted as a defence to shield the criminal from penal consequences needed proper attention.After a careful
consideration their Lordships found M' Naghten not guilty on the ground of his mental insanity. It was
observed that every man is presumed to be sane and to possess sufficient degree of reason to be held
responsible for his crime until the contrary is proved.
Insanity under Indian Criminal Law - Under the Indian Penal Code, insanity has been accepted as a defence
to a charge of crime. Section 84 of the Indian Penal Code extends immunity from criminal liability to a person,
who, by reason of unsoundness of mind, is unable to know the nature of the act or is unable to know that what
he is doing is "either wrong or contrary to law." In recognising such a state of mind on the part of the accused
as a complete defence to criminal responsibility, the law postulates that it is futile to punish a person who does
not know the nature of his act, or that what he is doing is either wrong or contrary to law.

BIO-PHYSICAL FACTORS AND CRIMINALITY

Biological differences in human personality also account for criminality in human beings. The logic behind
biological explanation of crime is that structure determines function and persons behave differently owing to
the fact that they are somehow structurally different. The physical and biological abnormalities are generally
responsible for criminal behaviour. In other words, the criminal is viewed as a biological organism
characteristically different, abnormal, defective and inferior, both biologically and physiologically, The
genetic or biological theory of crime causation pre-supposes that criminality is inherited and criminals differ
from non-criminals in their physio-biological built. Glandular mal-functioning, racial heritage, moral
insensitivity etc. contribute to crime causation.
This theory is an improved version of Lombroso's theory of 'born-criminals (Atavists) insofar as it attributes
criminality to external features of human personalty rather than his heredity. Individuals with these criminal
features are generally incapable of resisting impulse to commit crimes. Bio-chemical researches have tried to
show that hormonal imbalances have an adverse effect on criminality. In other words, hormonal imbalances
affect the thinking power of the brain and control over nervous system and this may lead to criminality.
But the general consensus does not accept these findings. The more accepted view is that hormonal imbalances
may act as catalyst for criminal behaviour and provide a favourable biological environment for crime causation
but criminality cannot be attributed to these imbalances alone. Likewise, physiological factors such as age,
sex and certain endocrinal imbalances also seem to have a correlation with the criminality of offenders
Adolescents and juveniles are more prone to offences like stealing, and sexual assaults as they readily fall a
prey to the urges of sex and other lustful activities because of their tender age. The offences of theft, gambling,
drunkenness, breach of traffic rules etc., are more common with young persons who are normally between the
age group of 18 to 30 years.
This is probably because of the fact that these offences involve considerable display of courage, boldness and
adventure which these young persons normally possess. Persons advanced in age and experience are more
prone to offences like white collar crime, fraud, cheating. embezzlement etc., because the nature of these
crimes require maturity of mind and tact to handle intricate situations in case of detection.
SOCIOLOGICAL THEORY OF CRIMINAL BEHAVIOUR
This theory pre-supposes that criminals are a product of society. The impact of sociological factors is so great
on persons that they either shun criminality embrace it, depending on their environment and immediate social
conditions. Prof Sutherland made an intensive study of criminals and offered two major explanations for
criminal behaviour, namely:-
• (1) the processes operating at the time of the occurrence of crime which he called the dynamic
explanation of crime; and
• (ii) the processes operating in the earlier life-history of the criminal which he termed as the historical
or generic explanation of crime.
The dynamic explanation of crime causation was subsequently favoured by the psychologists, biologists
and psychiatrists and in fact formed the basis for subjective approach to crime. It suggests that the cause
of criminal behaviour lies in the immediate favourable situation which the criminal finds conducive for
the criminal act. It is true that personal situations of the criminal do play a vital role in the causation of
crime yet these 'situations' alone can hardly be sufficient to motivate a person to commit crime if his
previous life experiences are otherwise different. Therefore, a crime usually generates when a person from
his past experiences considers a particular situation conducive to it.
• As regards the historical or generic explanation of criminal behaviour, Sutherland drew the following
conclusions:
(1) Criminal behaviour is learnt' and not inherited.
(2) The process of learning criminal behaviour operates through interaction of the criminal with other
persons and his association with them.
(3) The greatest influence on the individual is that of his intimate personal group which moulds his
conduct in many ways.
(4) Criminality in human society can best be explained through Sutherland's principle of Differential
Association which pre-supposes that there are criminal as well as non-criminal associations and these
two forces are constantly counteracting.
The criminal behaviour results in when the circumstances favourable to violations of law outweigh
those which are unfavourable to law-breaking.
 (5) The association with regard to criminal behaviour and anti-criminal behaviour may vary in respect
of its duration, priority or intensity.
(6) Some criminologists have attempted to explain criminal behaviour in terms of economic needs,
acquisitive tendencies of men and urge for gaining social status and seeking pleasure in life. But this
argument is untenable inasmuch as it equally applies to lawful behaviours as well. Thus, theft may be
committed by a person for monetary gains but similar results are achieved by earning wages honestly
through hard labour.
Sutherland’s Theory of Differential Association - The theory of differential association was
propounded by Edwin H. Sutherland in 1939 which was later modified' in 1947. The theory asserts
that crime is learnt by association with others. According to him. behavioural learning takes place
through personal contacts with other people. Sutherland's theory of differential association and
individual criminality has been critised on three main grounds, namely,-
(1) It is incorrect to say that persons become criminals because of their association with criminal
behaviour patterns. If that were so, everyone in contact with criminals would adopt or follow
criminality, which is not true.
(2) There may be cases when a person learns criminal behaviour patterns from non-criminals and non-
criminal behaviour patterns from criminals. The theory of differential association takes no notice of
this factual situation.
MULTIPLE FACTOR APPROACH TO CRIME CAUSATION
• Despite repeated attempts on the part of criminologists propounding different views to formulate a
singular theoretical explanation for criminal behaviour, no hypothesis could answer the issue
satisfactorily. Eventually, the sociologists made use of 'multiple-factor approach' to explain the
causation of crime.
• The supporters of this view believe that crime is a product of a combination of a variety of factors
which cannot be narrated in terms of general propositions.
• This view finds support from the writings of eminent American criminologist William Healy,
expressing his views on multiple causation theory, Prof. Healy observed that it is not one or two factors
which turn a man delinquent but it is a combination of many more factors say eight or ten-which
cumulatively influence him to follow criminal conduct
• But this theory has been vehemently criticised by Albert Cohen on the ground that it offers no single
explanation which can explain crime causation.

• The greatest shortcoming of the multiple factor approach to crime according to Cohen is that the
adherents of this theory confused 'factors' with those of 'causes' of crime.

Multiple factors includes:

1. Mobility
2. Culture conflicts
 3. Family background
4. Political ideology
5. Religion and Crime
6. Economic Conditions
7. Ecology of Crime
8. Influence of media
CONFLICT THEORY OF CRIME
• The propounders of conflict theory contend that conflict is inherent in all societies, may it result from
culture, race, gender, ethnicity or any other relationships.
• Conflict results from competition for power among various groups or cultures.
• Sellin wrote about his conflict theory in 1938 and asserted that culture conflict emanates from conflict
of conduct norms, where each separate culture sets out its own norms i.e. rules of behaviour to be
instilled into its members. In homogeneous society these are enacted into laws and followed by the
members of that society because they consider them to be right. However, where the society is
heterogeneous, this does not occur and culture conflict is bound to arise."
• Vold was also one of the proponents of the conflict theory of criminal behaviour.
• He argued that people are naturally group oriented and those who live same interests come together to
form a group in order to carry forward these interests.
• The central theme of Vold's theory is that different groups have different and often incompatible
interests which gives rise to conflicts. Where groups have a similar strength, then they often resolve
their conflict by compromise thus lending stability to society.
• But if the groups are of differing strength, the powerful one dominates which creates frustration and
feeling of discontent among the weaker group which eventually leads to crimes. Therefore, crime
according to Vold is not the result of abnormality, but it is rather a natural response to an attack on the
way of life of the deprived or weaker group."
• Conflict theory suggests that society is a relatively segmented and unstable system, consisting of
multiple of groups with somewhat destructive values, desires, needs, aspirations etc.
• Each group wants to retain its identity and desires its existence acknowledged by the society. Conflict
among groups is therefore. inevitable.
• In this process, the powerful groups gain and maintain control by manipulating social institutions
including the legal system. Thus, the criminal law expresses the values and interests of the powerful
and serves to counter the resistance of the powerless
ECONOMIC THEORY

During eighteenth century, intensive researches were conducted by criminologists in Europe on the impact of
economic conditions on criminality. But unfortunately their findings differed radically and it was difficult to
reach any positive conclusion in this regard. The relationship between economic conditions and crime is
founded broadly on two main conflicting views, namely:
(1) The relationship between economy and crime is inverse; that is when economic conditions are favourable,
the incidence of crime is comparatively low but in times of economic depression criminality records an upward
trend. This assumption finds support in all Marxist doctrines and leftist policies. William Aldrian Bonger, the
noted Dutch social scientist strongly supported this contention.
(2) The relationship between economic structure and crime is direct or positive; that is to say, criminality being
an extension of normal economic activity, increases or decreases with the rise or fall in economy. Thus,
according to this preposition, the crime rate shows an increase in periods of prosperity and decreases during
periods of economic depression. This view has been most explicity developed by Fillips Polett as a supplement
to the original research of Enrico Ferri and his famous work 'Law of Criminal Saturation'. Thorsten Sellin,
however, concluded that unemployment which is necessarily an off-shoot of depression, did not have an
adverse effect on crime rate perhaps because of governmental relief measures

MARXISTS THEORY
Marxists have propagated a view that crimes emerge solely out of capitalist domination of society. Under such
society the upper class can exploit the weak, put them in physical danger, and transgress their human rights
either with impunity or with only lighter punishment. The Marxists believe that unfair division of labourand
capital would eventually lead to a conflict between rich and the poor and finally to the overthrow of capitalist
ideals. In result, communism would replace capitalism.

Richard Quinney, supporting the Marxist ideology alleged that capitalist State was creating a criminalogenic
society and there was need to replace it by socialist society in which people's socio-economic rights would be
more safe and secure and this would surely lead to reduction in crime. According to him, criminal law in the
capitalist regime is an instrument of the State and ruling class to perpetuate the capitalist social and economic
order and it is meant for the protection of their interests. Under these circumstances, the poorer sections of
society remain oppressed through the coercion of legal system and their discontentment generates crimes.' It
is only with the collapse of capitalistic society that the problem of criminality can be solved.
 MODULE 2

PUNISHMENT

PENOLOGY

Penology is a multi-disciplinary subject that aims to study and evaluate the application of penal sanctions to
wrongdoers. It broadly explains the justification, characteristics and effectiveness of punishment in its various
forms. In other words, it is a systematic study of different facets of punishment and its impact on crime,
criminals and the society. As a matter of fact, penology owes its origin to Cesare Beccaria, the propounder of
classical school of criminology who argued that justification of punishment must be to deter potential
criminals, and not merely to punish the offender. Later, it was during the end of the 19th century that different
theories of punishment were propounded focusing on the aims and objectives of the punishment.

PUNISHMENT

Punishing the offenders is a primary function of all civil States. Punishment is a process by which the state
inflicts some pain to the persons or property of person who is found guilty of Crime. The Object of Punishment
is to protect society from mischievous and undesirable elements by deterring potential offenders, by
preventing the actual offenders from committing further offenses and by reforming and turning them into law
abiding citizens.

Sir Walter Moberly whole accepting the definition of punishment as given by Grotious, suggests that
punishment presupposes that:

1. What is inflicted is an ill, that is something unpleasant

2. It is sequel to some act which is disapproved by authority
3. There is some correspondence between the punishment and the act which has evoked it
4. Punishment is inflicted, that it is imposed by someone’s voluntary act
5. Punishment is inflicted upon the criminal, or upon someone who is supposed to be answerable for him
and for his wrong doings.

JUSTIFICATION FOR PUNISHMENT

There are valid reasons for justification of punishment to offenders who are convinced for an offence. They
may briefly be stated as follows:

1. Deterrence: Punishment dissuades a person from future wrong doing by making punishment severe
enough so that the benefit or pleasure derived from the offence is outweighed by the pain and
probability of punishment.
 2. Incapacitation: Incarceration has the effect of confining the prisoner and physically incapacitating him
from committing a crime. The most dangerous criminals may be sentenced to life imprisonment for
life or even a sentence of death may be invoked for heinous and brutal crimes such as murder, etc.
3. Restoration : For some minor offences punishment may in the form of restoration such as fines or
payment of compensation to the victims of crime of his/her relatives or families.
4. Rehabilitation: Some punishments are directed to reform the offender and ensure his rehabilitation as
a law-abiding citizen. It aims at bringing about a change in the offender’s attitude to make him socially
acceptable.

THEORIES OF PUNISHMENT

The types of Punishments to be inflicted are backed by the different theories. Theories of punishment contain
generally policies regarding handling crime and criminals. There are four generally accepted theories of
punishment, namely:

1. Deterrent Theory
2. Retributive Theory
3. Preventive Theory
4. Reformative Theory

These theories are not mutually exclusive and each of them plays an important role in dealing with potential
offenders.

In Dr. Jacob George v. State of Kerala 1994 SCC (3) 430 JT., the Supreme Court held that the ultimate aim
of punishment was to be deterrent, reformative, retributive, preventive, as well as compensatory. If one theory
was to be preferred over others, it would not amount to a sound punishment. Each theory needs to be
understood independently and applied according to the facts of the case as well as the nature of offence and
offender. The Supreme Court stated the quote “every saint has a past and every sinner has a fortune”, meaning
that where a person is not an offender in the eyes of law, it cannot be claimed that he never committed any
wrongful act, and where a person is an offender in the eyes of law, it cannot be claimed that he had been an
offender all his life. What the Supreme Court essentially did here was that it provided a concoction of all the
theories of punishment, and suggested that each theory be applied according to the facts and circumstances of
each case.

1. DETERRENT THEORY

This theory says that such a punishment be inflicted that others will not repeat the specific offence. Deter =
Abstain from action, Deterrent Punishment = Severe Punishment; Intended to prevent the offender from doing
again committing the crime. The aim of this theory is to inflict various penalties on the offenders with a view
to deterring them from committing crime. This theory also seeks to create a sense of fear in the mind of others
with a view to keep them away from committing such crime. The rigor of the punishment acts as a warning to
others . Deterrence is the use of punishment as a threat which is considered as a means to prevent people from
offending or to reduce the probability and/or level of offending. The concept of deterrence has two key
assumptions: the first is that specific punishments imposed on offenders could prevent the offender from
committing further crimes; the second is that fear of punishment could prevent others from committing similar
crimes.

The concept of the deterrent theory is simplified by philosophers like Thomas Hobbes (1588- 1678), Cesare
Beccaria (1738-1794), and Jeremy Bentham (1748-1832).

In the Hobbesian view, people generally pursue their self-interests, such as material gain, personal safety and
social reputation and make enemies, not caring if they harm others in the process. Since people are determined
to achieve their self-interests, the result is often conflict and resistance without a fitting Government to
maintain safety. To avoid, people agree to give up their egocentricity as long as everyone does the same thing,
approximately. This is termed as “Social Contract”. According to this social contract, he stated that individuals
are punished for violating the social contract and deterrence is the reason for it to maintain the agreement
between the State and the people, in the form of a social contract workable.

According to Cesare Beccaria, while discussing about punishments, the proportion of the crime and
punishments should be equal for it to serve as a deterrence or have a deterring value.

According to J. Bentham, who is known as the founder of this theory, a hedonistic conception of man and that
man as such would be deterred from crime if punishment were applied swiftly, certainly, and severely.

Bentham however believed that offenders must be provided an opportunity for reformation by the process of
rehabilitation.

From different Deterrent theories of different philosophers, it was seen that the theory of deterrence consists
of 3 major components.

• Severity: It indicates the degree of punishment. To prevent crime, criminal law must emphasize penalties to
encourage citizens to obey the law. Excessively severe punishments are unjust. If the punishment is too severe
it may stop individuals from committing any crime. And if the punishment is not severe enough, it will not
deter criminals from committing a crime.

 Certainty: It means making sure that punishments must happen whenever a criminal act is committed.
Philosopher Beccaria believed that if individuals know that their undesirable acts will be punished, then
they will refrain from offending in the future.
• Celerity: The punishment for any crime must be swift in order to deter crime. The faster the punishment is
awarded and imposed; it has more the effect on deterring crime.

CASE LAWS

Phul Singh v. State of Haryana 1980 AIR 249: In this case, a 22-year-old man raped a 24-year-old girl in broad
day-light. Four years rigorous imprisonment was awarded to him by the Sessions Court. Further in appeal, the
High Court confirmed the sentence given by the Sessions Court. But the sentence was reduced to two years
rigorous imprisonment by the Supreme Court. The Supreme Court held that an incriminating company of
criminals for a long period of time may be counterproductive. With this view, the Supreme Court blended
deterrence with correction and reduced the sentence to rigorous imprisonment for two years rather than four
years.

Nirbhaya gang rape (Mukesh & Anr v. State for NCT of Delhi & Ors. (2017) 6 SCC 1): In this case, the Court
gave the death sentence to the four convicts for committing gang rape. it’s being suggested that justice has
finally been served to “India’s Daughter” and though the decision came after a staggering seven years, it will
help to secure the safety of women and prevent rape cases in the future. We can say that it is a great example
of future crimes like this. So, according to this theory, after Nirbhaya’s judgment crimes like rape should not
have happened. But they are happening till now. Every day we hear a new rape case happening around us,
increasing the rate in our society.

Criticism of the Theory: This theory is not practical and thus is not followed nowadays. This theory fails to
create any effect over the hardcore criminals or the repeated offenders as they are not deterred by the
punishments inflicted over them. So it defeats the very purpose of this theory as when criminals are not
deterred then how such punishments are going to deter general public. Thus it will not reduce the extent of
crime in the society. On the other hand, it also fails to affect an ordinary criminal, as very often, a crime is
committed in the spur of the moment. If the crime is pre-mediated, the offender commits the crime, knowing
fully well, the consequences arising from his act and performs the act because he cannot help but do it. This
method is still in use in Muslim countries

2. RETRIBUTIVE THEORY

While deterrent theory considered punishment as a means of attaining social security, the retributive theory
treated it as an end in itself. It was essentially based on retributive justice which suggests that evil should be
returned for evil without any regard to consequences. The supporters of this theory did not view punishment
as an instrument of securing public welfare. The theory, therefore, underlined the idea of vengeance or
revenge. The pain to be inflicted on the offender by way of punishment was to outweigh the pleasure derived
by him from the crime. In other words, retributive theory suggested that punishment is an expression of
society’s disapprobation for offender’s criminal act.
The most classic form of retributivism is derived in Code of Hammurabi’s lex talionis, which stands for ‘an
eye for an eye and a tooth for a tooth’. Most retributivists believe that a guilty person should suffer pain.
Herbert Hart defined retributivism as ‘the application of the pains of punishment to an offender who is morally
guilty’ .

Retributive justice is a theory of justice that considers punishment, if proportionate, to be the best response
to crime. When an offender breaks the law, s/he thereby forfeits or suspends her/his right to something of equal
value, and justice requires that this forfeit be enacted. This theory supports that for any crime committed by
the individual then same act is to be done with him. This theory is also called by the name of revenge Theory.
For example if someone commits murder then revenge is taken from the offender in the same manner.

Supporting the theory of retribution Emmanuel Kant observed :

‘ Judicial punishment can never be used merely as a means to promote some other good for the criminal
himself or civil society, instead, it must in all cases be imposed on him only on the ground that he has
committed a crime; for a human being can never be manipulated merely as a means to the purposes of someone
else”.

Retributive theory is closely associated with the notion of expiation which means blotting out the guilt by
suffering an appropriate punishment. It is this consideration which underlies the mathematical equation of
crime, namely, guilt plus punishment is equal to innocence,

Hegel opposed the theory of retribution and observed that it is the manifestation of revenge for an injury. To
quote him, he said:

“ You hurt me so I will hurt you. Indeed that is the literal meaning of retribution. And if I cannot hurt you
myself, I demand that you should be hurt by others. The desire to make the offender suffer, not because it is
needed so that the guilt is purged, not also because suffering might deter him from future crime, but simply
because it is felt that he deserves to suffer, is the essence of retribution”.

Criticism: This theory is not followed nowadays as it defeats the basic purpose of punishment and also the
principle of natural justice. Taking a revenge of crime done by one will not create any effect over the society.
One fact cannot be ignored is that before infliction of punishment it is to be observed that under which
circumstances the crime has been committed by the offender. Moreover it is not justified to give same
punishment to all the offender committing same offences as no two cases have same set of facts and
circumstances. Another point of criticism is that one chance should be given to all to reform him. It is not like
this that once an offender is always an offender. Sometimes pardoning or reprimanding can do big things that
a punishment cannot.

However, the modern penology discards retribution in the sense of vengeance, but in the sense of reprobation
it must always be an essential element in any form of punishment.

Pros and Cons:

Pros-

 Acts as a strong deterrent.

 Helps in giving moral justice to the victim.

 Instils the feeling of trust within the society, towards the judiciary.

Cons-

 Sometimes, may become disproportionate with the seriousness of the crime.

 Society develops feelings of vengeance and destructive tendencies follow.

 The State may become autocratic in its functioning, using the punishment to torment people.

3. PREVENTIVE THEORY

Preventive theory of punishment is based on the proposition ‘not to avenge crime but to prevent it’. It
presupposes that need for punishment of crime arises simply out of social necessities. In punishing a criminal,
the community protects itself against anti-social acts which endanger social order in general or person or
property of its members.

In England, utilitarians like Bentham, Stuart Milland Austin supported this theory because of its humanising
influence on criminal law. They asserted that it is the certainty of law and not its severity which has a real
effect on offenders.

Preventive theory is also known as 'theory of disablement.' According to this theory, punishment is based on
the proposition, "not to avenge crime but to prevent it" The aim of this theory is to disable the
criminal. Offenders are disabled from repeating the crime by awarding punishments, such as death, exile or
forfeiture of an office. By putting the criminal in jail, he is prevented from committing another crime.

According to Paton: " The Preventive theory concentrates on the prisoner and seeks to prevent him from
offending again in the future. The death penalty and exile serve the same purpose.

As an off-shoot of preventive view regarding crime and criminals, the development of prison institution gained
momentum. The preventive theory seeks to prevent recurrence of crime by incapacitating the offenders. It
suggests that prisonisation is the best mode of punishment because it serves as an effective deterrent and a
useful preventive measure. According to the supporters of this theory, murderers are hanged not merely to
deter others from meeting similar end, but to eliminate such dreadful offenders from society.

Criticism of the theory: Critics points out that Preventative punishment has the undesirable effect of
hardening first offenders, or juvenile offenders, when imprisonment is the punishment, by putting them in the
association of Harden Criminals.

4. REFORMATIVE THEORY

With the passage of time , developments in the field of criminal science brought about a radical change in
criminological thinking. There was a fresh approach to the problem of crime and criminals. Individualised
treatment became the cardinal principle for reformation of offenders. This view found expression in the
reformative theory of punishment.

As against the deterrent, retributive and preventive justice, the reformative approach to punishment seeks to
bring about a change in the attitude of offender so as to rehabilitate him as a law-abiding member of society.
Punishment is used as a measure to reclaim the offender and not to torture or harass him. Reformative theory
condemns all kinds of corporeal punishments. The major emphasis or reformist movement is rehabilitation of
inmates in peno-correctional institutions so that they are transformed into law-abiding citizens. The reformists
advocate human treatment of inmates inside prison institutions. They also suggest that prisoners should be
properly trained to adjust themselves to free life in society after their release from the institution. The agencies
such as parole and probation are recommended as the best measures to reclaim offenders to society as reformed
persons.

The reformative view of penology suggests that punishment is only justiciable if it looks to the future and not
to the past.

Undoubtedly, modern penologists reaffirm their faith in reformative justice but they strongly feel that it should
not be stretched too far. The reformative methods have proved useful in cases of juvenile delinquents, women
and the first offenders. However, recidivists and hardened criminals do not respond favourably to the reformist
ideology. The reformative theory takes into account serious factors which lead the person to commit the crime.
For example- his family, education and his socio-economic background. It tries to find out the causes and
reasons which compels and individual to commit a crime and then price to eradicate the criminal tendency by
providing appropriate education to him.

This theory emphasizes that in prison; the prisoner should be taught and trained so after being released he can
secure a better living. It takes the view that punishment is justiciable only if looks to the future not the past.
This theory is based on the principle given by Mahatma Gandhi that ‘Condemn the sin, not the sinner’. This
theory supports the view that a criminal is not always a criminal. There might be a possibility that one has
committed an offence under grave provocation or anger then in such cases he is not a hard core criminal. In

such cases efforts are to be made so as to reform them instead of criminalizing them or punishing them.
Moreover keeping such persons with actual hard core criminals in prisons will further reduce their chances of
becoming good human beings and such company will further create bad impact over them. According to this
theory, crime is like a disease.

This theory maintains that "you cannot cure by killing". The exponents of the reformative theory believe that
a wrong-doers stay in prison should serve to re-educate him and to re-shape his personality in a new mould.
They believe that though punishment may be severe, it should never be degrading. To the followers of this
theory, execution, solitary confinement and maiming are relics of the past and enemies of reformation. Thus,
the ultimate aim of the reformists is to try to bring about a change in the personality and character of the
offender, so as to make him a useful member of society . Not looking to criminals as inhuman this theory puts
forward the changing nature of the modern society where it presently looks into the fact that all other theories
have failed to put forward any such stable theory, which would prevent the occurrence of further crimes.
Though it may be true that there has been a greater onset of crimes today than it was earlier, but it may also
be argued that many of the criminals are also getting reformed and leading a law-abiding life alltogether.
Reformative techniques are much close to the deterrent techniques .

Purposes of Reformative Theory of Punishment

• Rehabilitation - The primary purpose of punishment is to rehabilitate offenders by addressing the

underlying causes of their criminal behaviour, such as social, psychological, and environmental
factors.

Rehabilitation may involve providing education, vocational training, counselling, drug and alcohol treatment,
mental health services, and other interventions that aim to reform offenders and equip them with the skills and
resources necessary to reintegrate into society as law-abiding citizens.

• Prevention of Recidivism - By addressing the root causes of criminal behaviour, the reformative
theory of punishment aims to prevent recidivism, which refers to the relapse into criminal behaviour
by offenders after being released from prison or serving their sentence.

By providing opportunities for offenders to address and overcome the factors that contributed to their criminal
behaviour, rehabilitation can reduce the likelihood of repeat offences and promote long-term public safety.

• Reintegration - The reformative theory of punishment also emphasizes the reintegration of offenders
back into society as productive citizens. This may involve providing assistance with housing,
employment, education, and other resources that can help offenders successfully reintegrate into their
communities and reduce their risk of reoffending.
Reintegration is seen as an important aspect of punishment, as it helps offenders to become responsible and
law-abiding members of society, and also reduces the burden on the criminal justice system.

Principles of Reformative Theory of Punishment

• Individualisation - Offenders are treated as individuals with unique needs and circumstances, and
rehabilitation programs are tailored to address their specific risks and needs. This may involve
conducting assessments to identify the factors contributing to their criminal behaviour and developing
individualized treatment plans accordingly.

• The individualization principle recognizes that offenders may have different underlying causes of
criminal behaviour and require personalized interventions to address those causes effectively.

Non-Punitive Approach

• The reformative theory of punishment emphasizes a non-punitive approach that focuses on addressing
the root causes of criminal behaviour rather than inflicting suffering or retribution on offenders.

• This may involve using positive reinforcement, rewards, and incentives to encourage pro-social
behaviour and discourage reoffending.

Human Dignity and Rights

• The reformative theory of punishment recognizes the inherent dignity and rights of offenders, even
though they have committed crimes. Offenders are treated with respect and are afforded their
fundamental human rights, including the right to fair treatment, privacy, and due process.

• Rehabilitation programs are designed to promote the well-being and dignity of offenders and to help
them develop a sense of self-worth and responsibility towards themselves and society.

• In such cases efforts are to be made so as to reform them instead of criminalizing them or punishing
them. Moreover keeping such persons with actual hard core criminals in prisons will further reduce
their chances of becoming good human beings and such company will further create bad impact over
them.

• According to this theory, crime is like a disease.

• This theory maintains that "you cannot cure by killing".

• The exponents of the reformative theory believe that a wrong-doers stay in prison should serve to re-
educate him and to re-shape his personality in a new mould.

• They believe that though punishment may be severe, it should never be degrading.
 • To the followers of this theory, execution, solitary confinement and maiming are relics of the past and
enemies of reformation.

Criticism: This Reformative Theory of Punishment cannot be applied to hardcore or repeated criminals.

COMMUTATION & REMISSION

There are different Constitutional and Statutory Provisions which suspend, remit or commute sentences given
to the convict. The Chapter 32 of the Code of Criminal Procedure, 1973 deals with the suspension, remission
and Commutation of sentence. And also the Article 72 and Article 161 of the Indian Constitution empowers
the President and Governor to grant pardon, suspend, remit or commute the sentence. These all powers are
exercised by the head of the state.

DIFFERENT TERMS

• Commute- Commutation changes the nature of the sentence to a lighter one. To illustrate, a sentence
of death may be turned into life imprisonment or a sentence of rigorous imprisonment into a simple
sentence.

• Remit- In the case of remission, the nature or character of the sentence remains the same; however,
the term is reduced. Here, a sentence of life imprisonment may be reduced to fourteen years.

• Respite: It denotes awarding a lesser sentence in place of one originally awarded due to some special
fact, such as the physical disability of a convict or the pregnancy of a woman offender.

• Reprieve: It implies a stay of the execution of a sentence (especially that of death) for a temporary
period. Its purpose is to enable the convict to have time to seek pardon or commutation from the
President.

Statutory Provisions to Remit the Sentence

• The power of remission has been recognized under the Constitution of India, the Indian Penal Code of
1860 (IPC), the Code of Criminal Procedure of 1973 (CrPC), and the Prisons Act of 1894.

• Under Article 72 and Article 161, the Constitution bestows on the President and the Governors of the
state, respectively, the pardoning and the above-mentioned related powers.

• In the CrPC, these powers (related to remission and commutation of sentence) are mentioned
under Sections 432 to 435, and in the IPC, under Sections 54 and 55, and are to be exercised by the
appropriate government.
 • In the CrPC, these powers (related to remission and commutation of sentence) are mentioned
under sections 432 to 435, and in the IPC, under sections 54 and 55, and are to be exercised by the
appropriate government.

Section 54 in The Indian Penal Code

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.

Section 55 in The Indian Penal Code

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.

• In Swamy Shraddananda v. State of Karnataka the Court was called upon to consider as to what
would constitute ‘life imprisonment’ in a case where death sentence was commuted to life sentence.
Swamy Shraddananda was convicted under Section 302 and 201 I.P.C and was sentenced to death
for the offence under Section 302 IPC. In appeal the High Court affirmed the conviction and the death
sentence awarded. The matter then travelled to the Supreme Court and came up for disposal before a
Bench of three Judges.

While one of the learned Judges took the view that the appellant deserved nothing but death, the others
made it clear that life imprisonment, rather than death, would serve the ends of justice. But the Hon’ble
Judges also made it clear that the appellant would not be released from prison till the end of his life.

• Having examined various decisions on the point which have also been referred to hereinabove, the
Hon’ble Judges substituted the death sentence given to the appellant by the Trial Court and confirmed
by the High Court with imprisonment for life with a direction that the convict would not be released
from prison for the rest of his life.

• Mohd. Munna v. Union of India, it was reiterated that life imprisonment was not equivalent to
imprisonment for 14 years or 20 years. Life imprisonment means imprisonment for the whole of the
remaining period of the convicted person’s natural life. This Court observed that there was no provision
either in the Indian Penal Code or in the Criminal Procedure Code, whereby life imprisonment could
be treated as either 14 years or 20 years without there being a formal remission by the appropriate
Government.

• In ‘Laxman Naskar v. Union of India’ (2000) the SC laid down five grounds on which remission is
considered:

• Whether the offence is an individual act of crime that does not affect the society
 • Whether there is a chance of the crime being repeated in future

• Whether the convict has lost the potentiality to commit crime

• Whether any purpose is being served in keeping the convict in prison

• Socio-economic conditions of the convict’s family

• Supreme Court in Maru Ram vs Union of India (1981 (1) SCC 107) clarified, ”The president and the
governors in discharging the functions under Article 72 and Article 161 respectively must act not on
their own judgment but in accordance with the aid and advice of the ministers.

All public power, including constitutional power, shall never be exercisable arbitrarily or mala fide.
Consideration of religion, caste, colour or political loyalty are totally irrelevant and fraught with
discrimination.“

• In Swaran Singh vs state of UP (1998 (4) SCC 75) Supreme Court said, “We cannot accept the rigid
contention that this court has no power to touch the order passed by the governor under Article 161 of
the Constitution.

• The Supreme Court in Satpal vs state of Haryana (2000 (5) SCC 170) noted, ”The power of granting
pardon under Article 161 is very wide and does not contain any limitation as to the time on which and the
occasion on which and the circumstances in which the said powers could be exercised.

• The Supreme Court declared, “It would be justified in interfering with such order if the governor is found
to have exercised the power himself without being advised by the government or if the governor
transgresses the jurisdiction in exercising the same or it is established that the governor has passed the
order without application of mind or the order in question is mala fide one or the governor has passed the
order on some extraneous consideration.”

• Some of the relevant illustrative considerations culled out from the judicial dicta for the exercise of the
power of pardon are:
(a) Interest of society and the convict;
(b) The period of imprisonment undergone and the remaining period;
(c) Seriousness and relative recentness of the offence;
(d) The age of the prisoner and the reasonable expectation of his longevity;
(e) The health of the prisoner especially any serious illness from which he may be suffering;
(f) Good prison record;
(g) Post-conviction conduct, character and reputation;
(h) Remorse and atonement;
(i) Deference to public opinion.
Bilkis Bano case

• Bilkis Bano was gangraped and her three-year-old daughter Saleha was among 14 killed by a mob on
March 3, 2002, in Limkheda taluka of Dahod district, during the post-Godhra riots. In 2008, the Special
 CBI Court sentenced 11 accused to life imprisonment on the charges of conspiring to rape a pregnant
woman, murder and unlawful assembly under the Indian Penal Code. The court acquitted seven other
accused for lack of evidence. The Bombay High Court, in 2017, upheld the conviction and life
imprisonment of 11 people in the gang rape case. In 2019, the Supreme Court awarded compensation
of Rs 50 lakh to Bilkis — the first such order in a case related to the 2002 riots.

THE GUJARAT government told the Supreme Court on Monday that it decided to release the 11
convicts in the Bilkis Bano case as they had “completed 14 years and above in prison… their behaviour
was found to be good” and the Centre had also “conveyed (its) concurrence/ approval”.

The Court stated that “The question is whether the government applied its mind and what material
formed the basis of its decision to grant remission,” said Justice K M Joseph, heading a bench that also
comprised Justice B V Nagarathna, before adding, “Today it is this lady, tomorrow it can be you or
me.”

• The Supreme Court on July 11 adjourned to July 17 the hearing of a batch of pleas challenging the
remission granted last year to all the 11 convicts in the gang-rape case of Bilkis Bano and murder of
seven of her family members during the 2002 post-Godhra Gujarat riots.

CONNSTITUTIONAL PROVISIONS

 Art. 72. Power of President to grant pardons, etc, and to suspend, remit or commute sentences in certain
cases(1) The President shall have the power to grant pardons, reprieves, respites or remissions of
punishment or to suspend, remit or commute the sentence of any person convicted of any offence(a) in
all cases where the punishment or sentence is by a court Martial;

• (b) in all cases where the punishment or sentence is for an offence against any law relating to a matter
to which the executive power of the Union extends;

• (c) in all cases where the sentence is a sentence of death

• (2) Noting in sub clause (a) of Clause ( 1 ) shall affect the power to suspend, remit or commute a
sentence of death exercisable by the Governor of a State under any law for the time being in force

• Article 161 in The Constitution Of India 1949

Art. 161. Power of Governor to grant pardons, etc, and to suspend, remit or commute sentences in certain
cases.

The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of
punishment or to suspend, remit or commute the sentence of any person convicted of any offence against
any law relating to a matter to which the executive power of the State extends
• Crpc Section 432. Power to suspend or remit sentences.(1) When any person has been sentenced to
punishment for an offence, the appropriate Government may, at any time, without Conditions or upon
any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the
whole or any part of the punishment to which he has been sentenced.

• Sec. 433. 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.

• CRPC Section 433A. 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.
ALTERNATIVES TO PUNISHMENTS

INTRODUCTION

The main problem of prison administration has been related to prison overcrowding. Prisons in most countries,
including India, face dearth of resources to provide for proper accommodation, health care and constructive
activities for prisoners, leading to overcrowding and neglect of schemes for reformation and offender
rehabilitation.

Prison overcrowding adversely affects the justice system and has repercussions on the safety and health of
society.

INDIAN POSITION

In India, alternatives to imprisonment are available at all the three stages: pre-trial, sentencing and post
sentencing stage with varying degrees of success in different states.

PRE-TRIAL STAGE
Bail- A frequently used measure of an alternative to pre-trial detention is bail. The right to bail is an important
right given to an accused person. The Supreme Court of India has laid the rule of bail not jail. Amount of bail
sureties is set by the court which gets forfeited if the defendant does not appear for the trial.

At present, Section 167 Cr.P.C. provides outer limit of 90 or 60 days for keeping the arrested person in custody
(both police and judicial custody put together) before filing chargesheet against him in the court depending
upon the length of imprisonment with which the offence is punishable.

However, there is no outer limit laid down for detaining a person in custody after filing of chargesheet against
the accused in judicial custody.

To remove this travesty of justice, an amendment has been made in the Criminal Procedure Code in year 2006
by way of adding Section 436-A in Criminal Procedure Code, 1973.

Section 436A provides that where an under trial prisoner other than the one accused of an offence for which
death has been prescribed as one of the punishments, has been under detention for a period extending to one-
half of the maximum period of imprisonment, provided for the alleged offence, should be released on a
personal bond with or without sureties.

It also provides that in no case will an under trial prisoner be detained beyond the maximum period of
imprisonment for which he can be convicted.

Section 436(1) has also been amended to provide that if a person is accused of a bailable offence and cannot
furnish surety, the Court shall release him on a personal bond without sureties.

Plea Bargaining:

Plea bargaining system has been introduced by way of Code of Criminal Procedure (Amendment) Act, 2005,
passed by the Parliament and it has come into the effect from July, 2006.

Sections 265A to 265L of the Criminal Procedure Code, 1973, to allow plea-bargaining under specified
conditions.

 Plea bargaining is applicable only in criminal cases where maximum punishment is up to seven years.
 It is not applicable in criminal cases against women and children.

The plea-bargaining system has been introduced in India through the Code of Criminal Procedure
(Amendment) Act, 2005.

Plea bargaining in its most basic form means bargaining for a lesser sentence.

Under plea bargaining, the accused and the public prosecutor bargain wherein the accused presents and content
in exchange for a lesser sentence. The Law Commission of India recommended the introduction of the concept
of plea bargaining under the Criminal Procedure Code in their 154th Report.
In the beginning the concept of plea bargaining was opposed by the legal experts as well as the
judiciary. However, with inclusion in the criminal law it has been recognised of utmost importance in criminal
law in order to avoid trial.

Section 265A to 265L of the Code provides provisions for plea bargaining with respect to certain conditions.
The section mention that plea bargaining is only applicable to cases which carry imprisonment of less than 7
years and is not applicable in criminal cases against women and children.

The practice of plea bargaining has its roots in the American criminal law where it has been followed for more
than a century.

The Supreme Court of USA in Brady v United States upheld the constitutional validity and recognised the
role that plea-bargaining plays in effective disposal of cases.

One of the most important argument in favour of plea bargaining is that it leads to speedy disposal of backlog
of cases and therefore, expedited the delivery of justice.

In India, the concept of plea bargaining was upheld for the first time in the case of State of Gujarat V. Natwar
Harchanji Thakor, wherein a division bench of the Gujarat High Court ruled that the very object of law is to
provide easy, cheap and expeditious justice and therefore fundamental reforms like plea bargaining are
inevitable and necessary.

Compounding of Offences:

Section 320 of the Criminal Procedure Code provides for compounding of offences which basically means
that the court allows settlement of differences between the injured parties and the accused in exchange for
some gratification.
There are certain category of offences like mischief, criminal trespass and assault which can be compounded
without the permission of the court and between the parties themselves. However, certain more serious
offences like theft, cheating, criminal breach of trust etc, require prior permission from the court before being
compounded.

Under Section 320 of the Code of Criminal Procedure, 1973, some minor offences punishable under Indian
Penal Code, (e.g. small theft, house trespass, cheating, voluntarily causing hurt) can be compounded with the
permission of the court before which the prosecution for such an offence is pending. It is suggested that there
should be a review of these offences and to enlarge the offences under this category, e.g. the theft committed,
the amount may be raised to Rs. 1000/-. A committee of professionals drawn from cross sections of
stakeholders should be appointed to examine this issue and to submit recommendations.

The classification of offences under Section 320 is as follows:

Court permission is required before compounding– Causing miscarriage, Voluntarily causing grievous
hurt, Criminal breach of trust, bigamy, etc.
Court permission is not required before compounding– Voluntarily causing hurt, Wrongfully restrainment
or confinement of any person, Assault or use of criminal force, Theft, Cheating, Fraudulent removal or
concealment of property, Criminal trespass, Adultery, Criminal intimidation, etc.

While non-compoundable offences are those offences that are slightly more serious in nature than
compoundable offences. Due to their gravity, these offences, cannot be compounded and can only be
quashed. All the offences which are not mentioned under section 320 of CrPC are classified as non-
compoundable offences. In these cases, the State or the police files a case and acts as the complainants hence
it is not possible for them to enter into a compromise.

SENTENCING STAGE

Fine and other monetary penalties: Fine and other monetary penalties are imposed for various minor
offences on the offenders at the pre-trial stage. It is expected this measure will lead to reduction of the large
percentage of pre-trial detention of undertrials.

Fines are economical in terms of both money and man power and are also humane alternative as it inflicts
minimum damage to the offender. However, fines cannot be used for poor offenders who cannot pay. Many
times, prisoners are committed to prison in default It is for such cases that community service will be a better
option than simple imprisonment.

Compensation:

Under Sections 357 to 359 of the Cr.P.C, 1973, the Courts may order offenders to pay such compensation as
the court thinks reasonable for loss or injury caused to any person by the commission of the offences. The
courts order compensation along with any other addition sentence. It is not an independent sentence alternative
to short term imprisonment.

A fine is a preliminary penalty imposed upon a person who is held guilty of a crime. Fines have been a more
modern development in criminal law and is a very important instrument to punish small time offenders.
However, very little attention is paid to this form of punishment. Even in cases where a fine is imposed but
the offender is unable to pay such fine, they are sent to prison.

The benefit of attaching fines to penalties are multiple because the courts can avoid overcrowding of jails, fine
acts as a revenue for the state, fines can be adjusted according to the offenders means, avoids the imprisonment
of offender which further helps in rehabilitation in society and much more.

The problem with fines arises when the offender is unable to pay the fine. In this case, Section 64 of the Indian
Penal Code provides for imprisonment in default in payment of fine.
The courts have the power to sentence the person who defaults in payment to imprisonment. This is a very
regressive approach to this alternate to imprisonment. The thing that should be adopted instead is that fines
should be allowed to be paid in installments so that the main motive of reducing imprisonment can be
achieved. A number of distinguished authors of criminal law like M.J. Sethna have supported the idea of
payment of fine on instalment basis by saying that persons who are genuinely unable to pay fine should be
allowed sufficient time for the payment of fine by installment if necessary.

Probation:

Probation is one of the outstanding non-custodial measures which is designed to work for early reformation
and re-socialization of criminals while they remain in the communities as ordinary citizens by subjecting them
to certain conditions with which they must comply. Section 360 (1), such a release is permissible only if the
following conditions are satisfied:

 There is no previous conviction proved against the offender.

 When the person convicted is a woman of any age, or any male person under 21 years of age,
and the offence of which he or she is convicted is not punishable with death or imprisonment
for life.
 When the person convicted is not under 21 years of age, and the offence of which he is
convicted is punishable with fine only or imprisonment for a term of seven years or less.
Under the provisions of Probation of offenders Act, 1958, these measures can be applied to offenders who
have committed minor crimes for the first time.

 They can be released on probation with the supervision of probation officers.

 Offenders may be released on probation without the supervision of probation officers on condition that
they promise to conduct themselves well.

Probation is a form of extra-mural form of treatment i.e. treatment outside the four walls of the prison.

It has been perfectly defined by the United Nations in their publication, ‘Probation and Related Measure’ as
an act of conditional suspension of punishment while the offender is placed under personal supervision and
given individual guidance on treatment.
Section 4 of the Act empowers the Courts in appropriate cases to release any offenders on probation of good
conduct instead of sentencing him at once to any punishment.

In the case of Abdul Qayyum v. State of Bihar, the court observed that where the offender was 18 years of
age and physically and mentally normal, was interested in his work, the father exercised reasonable control
over him, there was no report against character of the offender and no previous conviction has been proved
against, he was entitled to be released on probation.

In Jugal Kishore Prasad v. State of Bihar (1972) 2 SCC 633., the Supreme Court explained the rationale of
the provision:
“The object of the provision is to prevent the conversion of youthful offenders into obdurate criminals as a
result of their association with hardened criminals of mature age in case the youthful offenders are sentenced
to undergo imprisonment in jail.”

Release After Admonition

Crpc Section 360(3)- Having regard to the age, character, antecedents or physical or mental condition of the
offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was
committed, the court may, after convicting the accused person, release him after due admonition. Such a
release is permissible only if the following conditions are satisfied:

 There is no previous conviction proved against the accused person.

 The offence of which he has been accused of is either theft, theft in a building or dishonest
misappropriation or is punishable under the IPC with not more than 2 years’ imprisonment or
is one punishable with fine only.
Subsection (3) is applicable only in respect of the specified offences and such other offences under the IPC
that are not punishable with more than two years’ imprisonment. Under this sub-section the court has got the
discretion to release the offender after admonition instead of sentencing him to any punishment.

POST SENTENCING STAGE

Parole :

Parole as a non-institutional treatment results in conditional release of the offender from the prison before
termination of his sentence. It is a conditional suspension of sentence for a short duration in order to
enable the prisoners to attend to their personal

Problems at home like agricultural, harvesting, etc. or to attend family related emergent needs.

Pardon :

Since offences are committed against the State, the Indian law does not permit the victim to grant pardon. The
power to grant pardon or executive clemency is vested to the Head of the State i.e. the President of India or
Governor of the State (Articles 72 and 161 of Constitution). In addition to this, State Governments also
commute the sentence for all categories of prisoners in commemoration of certain special events. This has the
effect of shortening the period of imprisonment of convicted prisoners, thereby reducing the prison population.
The Supreme Court is also looking at the issue of granting pardon by the Heads of the State Governments with
a view to rationalizing the grounds of pardon.

Open Prisons :

An open prison can be understood to mean any penal establishment in which the prisoners serve their sentence
with minimal supervision and perimeter security, and are not locked up in prison cells. The concept is based
on principles of self-discipline and “trust begets trust” which, if managed properly, can reform the human
resource.

The philosophy on the basis of which the open prison exists is reflected in the two dictums of Sir Alexander
Paterson. First, a man is sent to prison as punishment and not for punishment. Second, one cannot train a man
for freedom unless conditions of his captivity and restraints are considerably relaxed.

In Ramamurthy vs State of Karnataka (1997), the Supreme Court had explicitly observed that open prisons
represent one of the most successful applications of the principle of individualisation of penalties with a view
to social readjustment.

DETERMINATE & INDETERMINATE SENTENCING

DETERMINATE & INDETERMINATE

Determinate and indeterminate sentencing are two types of criminal sentencing .Determinate sentencing
involves a fixed amount of prison time whereas indeterminate sentencing involves a range of time such as two
to five years. An “indeterminate” prison sentence is one for which an offender’s date of release cannot be
predicted with fair accuracy from the court’s sentence at the conclusion of a criminal trial. The length of term
will be fixed by one or more decision makers who exercise later-n-time release discretion in a way that is
neither routinized nor reasonably knowable in advance.

A “determinate” prison sentence is one for which an offender’s date of release can be predicted with fair
accuracy from the court’s judgment at the conclusion of a criminal trial. When the time of release of the
offender from prison is determined by an Administrative Board, the Court imposes minimum and the
maximum limits of the penalty, the sentence is known as indeterminate sentence.

The system originated in the west, favoured by most European countries. The success of probation and parole
as a measure of treatment reaction to crime, has, however, overshadowed the system of indeterminate sentence
which is fast losing its significance in modern penology.

The first manifestation about the abhorrence of retribution and deterrence and inclination for individualisation
and reformation came in the shape of protest against fixed sentences. Flexibility and elasticity in penal
sentence was deemed necessary for proper rehabilitation of inmates through treatment methods.

The reformation of prisoners could not be possible if the sentences were determinate and the term of
imprisonment fixed and definite. The system of indeterminate sentence was therefore, regarded quite
consistent with the requirements of the principle of individualisation. Under this system the Penal Code
prescribes a minimum and a maximum sentence for a particular offence thus leaving sufficient scope for the
discretion of Prison Board to release the offender on parole if he reacted favourably to treatment methods of
the prison

INDETERMINATE OR INDEFINITE SENTENCE- THE DIFFERENCE IN OPINION

• When the time of release of the offender from prison is determined by an Administrative Board, and
the Court imposes minimum and the maximum limits of the penalty, the sentence is known as an
indeterminate sentence. In a sense, it is akin to an indefinite sentence but since a maximum limit is laid
down by the court, it is appropriate to call it an indeterminate sentence rather than an indefinite
sentence. The word 'indefinite' connotes an impression that the sentence is endless which is not true in
case of indeterminate sentence.

• The reason for laying down a minimum and a maximum limit in case of indeterminate sentence is to
check the court or the Parole Board, as the case may be, from being unduly sentimental and liberal or
unduly harsh in awarding the punishment

• Some penologists, argue that it is a misnomer to call such a sentence as indeterminate, particularly
when the minimum and the maximum limits are set out under the law. In their opinion, it ought to be
called as 'indefinete sentence’. But it is difficult to agree with this view because the word 'indefinite
carries with it an impression that the sentence is to continue for an inordinately longer period which is
certainly not the object of indeterminate sentence. The term "indeterminate sentence" therefore, seems
to be fitting and appropriate.

There is no denying the fact that rehabilitation is the prime object of sentencing process particularly in
case of juvenile and young offenders. The system of indeterminate sentence first began as an agency
of correctional method for your offenders so that they could be reeased earlier if they responded
favourably to the rehabilitative processes during the period of custody and control in the
institution. The main object of indeterminate sentence is to inculcate hope rather than fear in the mind
of inmate undergoing imprisonment.

• It also makes the inmate realise that his future lies in his own hands and he could secure an early
release from the institution if he showed interest and sincerity in work and labour allotted to him. The
greatest advantage of indeterminate sentence lies in the fact that it is aimed at correcting the inmate
rather than ill-treating him.

ORIGIN OF INDETERMINATE SENTENCE

• Historically, the system of indeterminate sentence is known to have originated from Spanish prisons
in 1835.

• Under the Spanish system, the prisoners were organised into groups of 1000 to 1500 called a
"company" One of the prisoners was to lead the company and control and supervise the prisoners under
 him. He was called the commander of the company. Thus, the system was modelled on military pattern.
Under this arrangement, good behaviour of the prisoner entitled him to proportionate reduction in his
sentence to the extent of one-third.

• Later, Bolivia also adopted a similar system and established Prison Aid Societies to supervise the
released prisoners.

• Dr. Marsongy, a French penologist wrote his 'Preparatory Liberation' in 1846, which contained an
elaborate discussion on topics connected with the power of pardon, conditional liberation, ticket on
leave system, aid to the discharged prisoners, etc.

• In this work, he pointed out that detention of inmates in prison was rather inhuman and at the same
time an additional burden on the State exchequer.

• He therefore, supported indeterminate sentence on the ground that it gave moral courage to the
offenders and offered them opportunities for proper education and discipline, thus helping them to
improve their socio-economic condition.

• With the introduction of the system of probation in 1859, France succeeded in amalgamating
suspended sentence with probation.' The Irish penal system also preferred indeterminate sentence to
the determinate one

• The system was greatly appreciated in USA. and subsequently it received statutory recognition in New
York State in 1867.

• Indeterminate sentencing in USA came under severe attack from most quarters in late 1960's and early
1970's because of its over-emphasis on individualised justice. It was criticised mainly on two grounds,
namely,

(i) whether sentencing should be based on rehabilitative considerations; and

(ii) procedure to determine the form and length of sentence leaves sufficient margin for miscarriage of
justice.

(iii) As to the desirability of indeterminate sentence, Dr. Sutherland observed that as a treatment reaction
to crime this mode of sentence is essentially selective in nature as its application is restricted only to a
few categories of offenders, mostly juveniles and the first offenders.

(iv) It has generally been argued that indeterminate sentence is most unsuited in case of serious offenders
and habituals or recidivists and those who are guilty of white collar crimes.

INDIAN POSITION
 • The Indian penal law, however, does not provide for indeterminate sentence for the reason that similar
objective is attained by resorting to certain other correctional techniques such as probation, parole and
open air camps for prisoners.

• In fact, the system of parole is itself a modified form of indeterminate sentence.

• Moreover, certain Indian penologists have expressed a view that adoption of the system of
indeterminate sentence would extend the scope of discretion for the magistracy which might be
detrimental to the interests of criminal justice.

CRITICAL APPRECIATION OF INDETERMINATE SENTENCE

The greatest advantage of the system is that the inmate is placed for his own salvation and he contributes to a
considerable curtailment of his own sentence by good work and effective change in his mentality.
Indeterminate sentence bears testimony to the fact that at times judicial individualisation may fail but the
administrative individualisation may work successfully.

The system seeks to adjust the treatment of the offender according to his personal traits.From this standpoint,
indeterminate sentence has been rightly recognised as a progressive measure. It has affinity with good time
laws and indirectly prepares the offender for a better life in future.

Lord Clove of the International Penal and Penitentiary Commission, the oldest inter-governmental agency in
the correctional field, in his address on 'Indeterminate Sentence' in London Conference (1925) made the
following observations with regard to this mode of sentence:

• (i) petty offenders should not be subjected to prolonged sentence;

• (ii) determinate sentence be limited to offenders above twenty five years of age whereas those below
this age should invariably be awarded indeterminate sentence, unless they are habitual criminals or
guilty of a serious crime;

• (iii) no minimum sentence need be prescribed but only a legal maximum limit may be laid down;

• (iv) lastly, the Administrative Boards or the Parole Boards which are entrusted with the arduous task
of releasing the prisoners undergoing indeterminate sentence,, should include well-qualified and
experienced staff.

MERITS OF INDETERMINATE SENETNCING

One of the most urgent priorities in the development of individualised prison programmes. As a matter of fact,
the system of parole cannot function without indeterminate sentence. If best results are to be obtained from
the prison sentence and the ensuing parole period, the date of the release must be flexible one. Indeterminate
sentence is further preferred to definite sentencing which creates problems because the standards of judicial
sentencing may depend on the predilections of the Judges. Since inequalities of sentences create problems in
prison, correctional administrators have always preferred alternatives to definite sentencing.

DEMERITS OF INDETERMINATE SENTENCING

The first and the most potential objection so often raised against the system is the uncertainty about the
exactness of the sentence which in itself is a severe punishment from the psychological standpoint. Most
persons would certainly prefer a longer but a definite term of sentence rather than a shorter but an uncertain
period of anxiety and agony.

Moreover, prisoners with indeterminate sentence always suffer from a feeling of injustice about their sentence
in absence of any specified pre-determined definite rules. During the term of their sentence, however short it
may be, they remain completely in dark about the exact time of their release.

Secondly, mistaken judgment of the Prison Board about the fitness of a particular offender for release is
likely to result into his stay in the prison institution for a longer period than that actually necessary in his case.

Thirdly, in absence of any satisfactory method to gauge with accuracy the offender's fitness for release, it
might happen that a prisoner is released prematurely or conversely, he might be detained for an unduly longer
period.

Fourthly, since the release under indeterminate sentence generally depends on the reports of the prison wardens
the prisoners who antagonise the wardens are likely to be held in prison for a longer time due to adverse
reports against them. Conversely, those who flatter the wardens may manipulate an early release through
favourable reports.

Fifthly, indeterminate sentence produces sycophancy among the prisoners thus making them to work for
securing early release rather than to reform themselves sincerely for a normal life.

SENTENCING

INTRODUCTION

In the modern era, crime rates have increased all around the world, and India is no exception to it. The main
legislations which govern criminal law in India are the Indian Penal Code, of 1860, The Indian Evidence Act,
of 1872, and The Code of Criminal Procedure, of 1973. Sentencing is basically a statement provided in the
judgments which show the quantum of punishment for a particular offence as per the law. And when this
sentence is put into action or operationalized, then it becomes punishment.
“Sentences” are declarations in judgments that specify the legal penalty to be applied to a certain offence.
When the same is put in action, and is operationalized, it would be termed as ‘punishment’. A sentence is
considered to be the predecessor of the actual inflicting of punishment if any.

AIM OF SENTENCING

The main objective of a criminal trial is sentencing. The ultimate focus of the sentencing policy is to keep an
eye on crime and punish offenders.

• The criminal justice system is a series of government agencies and institutions which performs three
basic functions.

1. It defines what a ‘crime’ is, it adjudicates guilt of crimes and it imposes punishment for crimes.

2. The object is to suppress criminality and punish the guilty. Every criminal trial is a voyage of
discovery in which truth is the quest.

3. Goals include the rehabilitation of offenders, preventing other crimes, and moral support for
victims.

Every criminal trial is essentially divided into two stages- the Conviction and Sentencing. Conviction is
where the guilt of the accused is determined. The sentencing thus, comes at a stage after the person has been
found guilty. As the fundamental validation of any criminal justice delivery system is determined based on the
kind of punishment given for various offences, therefore the sentencing must be just and proportional.

SIGNIFICANCE OF SENTENCING AND SENTENCING POLICY

Sentencing can be perceived as an idea that is dependent on moral and social values existing in a given society
at a given point of time. Sentencing guidelines are a set of standards that are generally put in place to establish
rational and consistent sentencing practices within a particular jurisdiction. The sentencing policy is necessary
to promote a particular just society, protection of rights of both the victim and the convict. The sentencing
policy simply reflects the measure of judgement and the rationale, the society has for a certain crime and can
be considered as a formula for calculating what is right for a particular crime

TYPES OF SENTENCING

 A concurrent sentence is served at the same time with another sentence imposed earlier or at the same
proceeding.

 A consecutive (or cumulative) sentence occurs when a defendant has been convicted of several counts,
each one constituting a distinct offence or crime, or when a defendant has been convicted of several
crimes at the same time. The sentences for each crime are then "tacked" on to each other, so that each
sentence begins immediately upon the expiration of the previous one.
  A life sentence represents the disposition of a serious criminal case, in which the convicted person is
sentenced to spending the remainder of their life in prison.

 A maximum sentence represents the outer limit of a punishment, beyond which a convicted person
may not be held in custody.

 A mandatory sentence is created by state or federal statutes and represents the rendering of a
punishment for which a judge has no room for discretion. Generally it means that the sentence may
not be suspended and that no probation may be imposed, leaving the judge with no alternative but the
"mandated" sentence.

 A minimum sentence represents the minimum punishment or the minimum time a convicted person
must spend in prison before becoming eligible for parole or release.

 A suspended sentence actually has two different meanings. It may refer to a withholding or postponing
of pronouncing a sentence following a conviction or it may refer to the postponing of the execution of
a sentence after it has been pronounced.

COMMITTEE REPORTS

• Malimath Committee- in March 2003, a Committee was formed by the Ministry of Home Affairs to
look into the Reforms of the Criminal Justice System.

• Madhav Menon Committee - In 2008, the Committee on Draft National Policy on Criminal Justice
(the Madhava Menon Committee), reasserted the need for statutory sentencing guidelines.

• The Malimath Committee further observed that, in order to bring “predictability in the matter of
sentencing,” a statutory committee should be established “to lay guidelines on sentencing guidelines
under the Chairmanship of a former Judge of Supreme Court or a former Chief Justice of a High Court
experienced in criminal law with other members representing the prosecution, legal profession, police,
social scientist and women representative.”

In an October 2010 news report, the then Law Minister stated that the government is planning to establish a
“uniform sentencing policy” in line with the United States of America and the United Kingdom so as to ensure
uniformity while awarding sentences. However despite all such recommendations, still there are no steps taken
by the legislature to form uniform sentencing guidelines. whether a particular offence should be punished with
the minimum or maximum penalty prescribed for it, or somewhere from between the gap, depends solely on
the judge’s discretion.

Section 354(1)(B) of the CrPC directs judges to record reasons behind awarding a particular sentence, and
according to Section 354(3), whenever any sentence authorizes life imprisonment or death penalty, special
reasons must be laid down.
Despite the above provisions, it is undisputable that the absence of a sentencing policy in India, leaves the
judges and the judiciary with a lot of power. There can be various reasons why similar crimes may attract
different punishments for offenders:

One of the reasons could be differences in the severity of the crime, where even though two crimes might
appear similar on the surface, there might be nuances in the details that affect the severity of the offence.

Another reason could be differences in the criminal history of the offender

• Additionally, aggravating or mitigating circumstances, such as premeditation or self-defence, can

also impact the severity of the crime and corresponding punishment.

• Furthermore, bias or discrimination could also play a role in different punishments for the same crime,
which is a serious issue that should be addressed and corrected.

• It is important for the legal system to strive for consistency and fairness in sentencing, while also
considering the unique circumstances of each case.

PUNISHMENTS UNDER IPC

Section 53 of the Indian Penal Code, 1860 describes various types of punishments that a court of law can give
to a wrongdoer while awarding punishment.

(1) Death

(2) Life imprisonment

(3) Imprisonment which may be – rigorous or simple

(4) Forfeiture of property

(5) fine

AGGRAVATING & MITIGATING FACTORS

When two different people are given different punishments for committing similar offences, it can be
perceived as unfair or unjust. However, there can be several reasons for this discrepancy. Some of the possible
explanations include:

a) differences in the severity of the crime,

b) the criminal history of the offender,

c) the circumstances of the offence,

d) the presence of aggravating or mitigating circumstances,

e) and bias or discrimination

Each case is unique, and the court must consider all relevant factors when determining an appropriate
punishment. Ultimately, it is important to remember that the goal of punishment is not only to punish the
offender but also to deter others from committing similar crimes. The punishment must be proportional to the
offence and serve the interests of justice.

• Aggravating circumstances refer to any factors or circumstances that may increase the severity or
culpability of a wrongdoing or offence.

• . Examples of aggravating circumstances may include premeditation, use of a weapon or violence,

involvement of minors or vulnerable individuals, or a history of similar offences.

• Mitigating circumstances refer to any factors or circumstances that may lessen the severity or
culpability of a wrongdoing or offence. These circumstances may be considered in legal or
disciplinary proceedings, such as in criminal trials or in academic misconduct cases.

Examples of mitigating circumstances may include :

• mental illness, coercion, or duress, self-defence, etc.

• Lack of a prior criminal record.

• Minor role in the offense;

• Culpability of the victim.

• Circumstances at the time of the offence, such as provocation, stress, or emotional problems that might
not excuse the crime but might offer an explanation.

• Mental or physical illness; and

• Genuine remorse.

Thus, aggravating circumstances refers to factors that increase the severity or culpability of a criminal act.
The presence of an aggravating circumstance will lead to a harsher penalty for a convicted criminal. It includes
heinousness of the crime, lack of remorse, and prior conviction of another crime.

A mitigating factor is the opposite of an aggravating circumstance, as a mitigating factor provides reasons as
to why punishment for a criminal act's ought to be lessened.

In the case of Bachan Singh v. State of Punjab, the Court established the principle that the punishment for a
crime should be proportionate to the crime committed and the offender’s circumstances. This decision
highlighted the need for the sentencing Judge to consider the nature of the crime, the motive, the method of
commission, and the offender’s previous conduct, as well as the nature of the society and the public
conscience.The Court emphasised that the sentence should not be excessively harsh or unduly lenient.
Similarly, in State of Maharashtra v. Sukhdev Singh, the court held that while the law prescribes a maximum
sentence for a particular offence, it does not mandate that sentence in every case. The court emphasised that
the sentencing Judge must exercise discretion in determining the appropriate sentence based on the facts and
circumstances of the case, including aggravating, and mitigating factors.

LOWER JUDICIARY

Lower courts in the sentencing process work in hierarchy in terms of power to pass sentences.

 The judicial magistrates have limited powers to sentence that the judicial magistrate second class can
only sentence up to one year; Judicial Magistrate First Class can sentence up to three years.

 Power to take cognizance of offence is vested with judicial magistrates even though such crimes may
be tried by the Court of sessions.

 Chief Judicial Magistrate cannot pass sentence of imprisonment exceeding seven years.

 An Assistant Sessions Judge may pass any sentence up to ten years.

 A Sessions Judge or Additional Sessions Judge may pass any sentence including death.

HIGH COURT

• High Court may pass any sentence authorised by law. Every death sentence awarded by the Session’s
Court has to be confirmed by the High Court.

 In the interest of justice, High Court can also quash the FIRs where amicable settlement has been
reached by the parties.

 On the appellate side, High Courts can reverse, modify, enhance or reduce the sentence awarded by
the lower Courts including enlarging the accused on bail if his confinement is otherwise not warranted
for.

 The role of the High Courts in India to a greater extent has been of a ‘modifier’ and ‘moderator’ of
lower court sentence.

SUPREME COURT

 The Supreme Court plays the role of a moderator of High Court as the High Court checks
proportionality and legality of sentences passed by the lower courts.

 Certain guidelines have been issued by the Supreme Court to check arbitrary sentencing by lower
courts and smaller benches.

 Apart from this traditional sentencing structure, few legislations establish separate Courts for trial of
special offences.
  Such special Courts are also bound by Criminal Procedure Code, 1973 unless specially so excluded.

THE QUESTIONS RAISED

• Judicial authorities all over the world have been struggling hard to establish a coherent set of principles
for judicial sentencing but the fundamental question is as to which of the four, namely, deterrence,
retribution, prevention or reformation, should take precedence in the process of sentencing.

• It is on this point that the judges, the lawyers, the magistrates and the people in general disagree. The
crucial problem in context with judicial sentencing is whether it is the 'protection of society, or the
prevention of crime', which should gain primacy in awarding the sentence.

SUGGESTIONS

1. In ordering punishments, if a Judge leans too far towards uniformity, but is not displaying the wisdom,
compassion, and judiciousness which the people expect from him.

• Rather the personality of the offender and the gravity of the offence should be the guiding factor for a
Judge in judicial sentencing.

• The age

• antecedents,

• past criminal record,

• responsiveness and prospects of reformation of the offender

• as also the circumstances in which he committed the crime, should be taken into consideration while
deciding the quantum of punishment.

As rightly pointed out by Bentham, quantum of punishment should vary according to the offender's capacity
to suffer. He enumerated as many as thirty-two invariables of capacity for suffering some of which are sex,
age, physical and mental health. religion, lineage etc.

The use of individualised methods of punishment such as probation, parole, suspension of sentence, etc. may
achieve some element of rationality in the penal policy.

2. Humanity, consciousness about societal values are some the limiting factors in judicial sentencing.
Disparities in sentencing may be due to disparities between individual Judges, disparities between offenders
convicted for the same offence under similar situations, disparities due to locational comparisons or disparities
due to racial or class prejudices' etc. These are rather inevitable in the modern complex society.

3. The discretion of the Judge in matters of sentencing is limited by the penal law itself which sets a legal
maximum sentence for a particular offence. However, there may be mandatory penalties for certain offences
where the law gives the court no choice. For example, the offence of murder carries the minimum sentence of
life imprisonment under Section 302 of the Indian Penal Code. The terms minimum and maximum may serve
to mark the extremes of punishment, which require equal attention.

Spelling out the limits of minimum punishment, the Supreme Court held that, "the value of the punishment
must not be less in any case than what is sufficient to outweigh that of the profit of the offence. By the profit
of the crime, must be understood not only pecuniary profit, but every advantage real or apparent, which has
operated as a motive to the commission of the the crime."

4. For professional criminals or political terrorists who indulge in ruthless Violence and are a potential danger
for the community, an extended period of preventive detention after serving the penal sentence may prove
appropriate keeping in view the public safety and security against these dangerous hardened offenders.

5. The offences committed by public servants should be severely dealt with and deserve no leniency in
sentencing. Particularly, a public servant found guilty of accepting or obtaining illegal gratification or persons
guilty of food adulteration or any other socio-economic offence such as hoarding, profiteering, black-
marketing. tax evading etc. must be sternly punished as they are a menace to society.

6. Judicial sentencing is a personal responsibility of the Judge, a matter for his conscience alone. Any intrusion
into his decision should be considered most unreasonable. But things have now considerably changed. It is
said that today 'even Judges are judged'.’ They are expected to be fair and free from prejudices in pronouncing
sentences. A Judge should also be aware of the various issues involved in the crime and the factors influencing
the criminal who is standing trial before him

Needless to say, that despite legal training and limitations of criminal law, personal backgrounds and attributes
of the Judge do play a vital role in judicial sentencing. (Justice Cardozo’s Sub conscious elements)

8. The standards of sentencing are bound to differ depending on whether the Judges are drawn from among
the lawyers or laymen from public. It is generally presumed that lawyers with adequate legal training are better
sentencers for the reason that they are able to take an account of genuinely relevant factors, can weigh
arguments and reach conclusions and beyond all, they are rigid and less vulnerable to pressures.

9. Sentencing by the Judge largely depends on the way and the manner in which the case is presented before
him by the police or the prosecutor. Therefore, conviction or acquittal shall inevitably depend on the evidence
put forth by these personnel which may be biased or mistaken thus jeopardising the interests of criminal-
justice. Miscarriage of justice is generally due to distortion or manipulation of evidence or the witnesses
turning hostile due to pressure or threat exercised by the dreadful offender.

10. In order to eliminate chances of injustice to the accused due to miscalculated sentencing, the law provides
for appeal to higher courts. The appellate courts not only remove individual injustices but also formulate
precedents which the subordinate courts are bound to follow in their verdicts. This is indeed an effective
method of eliminating possibilities of miscarriage of justice.
The Supreme Court in Gurumukh Singh v. State of Haryana 2009, enumerated number of factors which should
be taken into account while determining sentence of the accused. They are:-

• (1) motive or previous enmity;

• (2) whether incident had taken place in a spur of moment;

• (3) intention/knowledge of the accused while inflicting injury or blow,

• 4) gravity, dimension or nature of injury caused;

• (5) the age and general health of the accused;

• (6) whether injury was caused without pre-meditation or in a sudden fight

• (7) the nature and size of weapon used for inflicting injury;

• (8) force used in committing the offence;

• (9) criminal background or adverse history of the accused;

• (10) whether death was caused due to shock;

• (11) number of other criminal cases pending against the caused;

• (12) whether the incident occurred within the family members or close relations;

• (13) conduct and behaviour of the accused after the incident;

• (14) whether accused has taken the injured/deceased to the b immediately to ensure the latter gets
proper medical treatment

CONSTRAINTS IN THE USE OF PUNISHMENT

1. "Punishment should not be so severe or torturous as to be inhumane or cruel.

2. It should not be imposed in a manner that results into violation of offender's protective rights. That is,
punishment should not only be in accordance with the procedure established by law but also conform to due
process of law.

3. The rule of proportionality should be the guiding principle of sentencing policy. That is, graver the offence,
more severe should be the punishment.

4. Where there is doubt as to the choice between two punishments, less severe should be imposed as a general
rule
PRE-SENTENCE HEARING

• Section 235 (2) of the Code of Criminal Procedure 1973 provides that once the accused is convicted
of an offence and the Court is not proceeding on the line of probation, the court must hear the accused
on the question of sentencing and then pass a sentence according to law.

• A similar provision is also incorporated in section 248 (2) of Cr.PC in relation to trial of warrant cases
by magistrates.

The law seems to urge the courts to not simply look at the crime but also at the criminal before deciding
upon the sentence. It seeks to trigger a legal adaptation of the modern understanding of the criminal as not
a menace which needs to be eliminated but a diseased mind which must be cured and rehabilitated. In this
context, the Courts must take into consideration facts which otherwise may not be relevant in a criminal
trial. Thus, the Courts must not simply look at the crime but also at the background of the criminal and
assess the socio-economic consequences and psychological repercussions before deciding upon a sentence

SECTION 235 CRPC

Section 235. Judgment of acquittal or conviction -

(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.

(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions
of section 360, hear the accused on the question of sentence, and then pass sentence on him according
to law.

PREVIOUS POSITION

Earlier Code of Criminal Procedure of 1898 did not contain such a provision and the same was incorporated
into the Code of Criminal Procedure 1973 pursuant to the recommendation of the Law Commission of India
in its 48th Report

While recommending the insertion in the nature of Section 235 (2), the Law Commission mentioned that-

It is now being increasingly recognised that a rational and consistent sentencing policy requires the
removal of several deficiencies in the present system. One such deficiency is the lack of comprehensive
information as to characteristics and background of the offender….that the taking of evidence as to the
circumstances relevant to sentencing should be encouraged, and both the prosecution and the accused
should be allowed to co-operate in the process.

In Ediga Anamma v State of Andhra Pradesh (1974) - Even before Section 235 (2) came into force, the
Supreme Court in the case of Ediga Anamma v State of Andhra Pradesh (1974) recognised the importance of
this provision which at that time was considering the lack of comprehensive provision in the earlier Criminal
Procedure Code for collection of sufficient personal and social information regarding the offender for an
appropriate sentence to be awarded.

The Supreme Court in the case of Santa Singh v State of Punjab (1976) has held that the provision of pre-
sentence hearing is oriented towards a socio-economic purpose and towards the goal of attaining an ideal
balancing in the sentencing process.

HEARING ON SENTENCING PRIOR TO SECTION 235 (2)

As was categorically stated in the case of Ediga Anamma v State of Andhra Pradesh (1974), prior to the
enactment of Section 235 (2) under the Code of Criminal Procedure 1973, there existed no procedural system
for collection of social and personal data of the offender to assist the court in determining an appropriate
sentence.

The Supreme Court in the case of Jagmohan Singh v State of U.P (1973) [prior to the enactment of Section
235 (2)] had sought to highlight the inherent procedural safeguards for ensuring proper sentencing in India.
Though the case dealt primarily with the imposition of death sentence, it sought to explain the several
provisions through which an appropriate sentence can be awarded by the court. The court primarily relied on
the following propositions:

1. The accused at the time of being charged is aware of the sentence which may be passed against him
and thus attempts to fill the record with as many mitigating circumstances as possible.

2. Apart from cross-examination Cr.PC also requires the accused to be questioned in regard to
circumstances appearing against him in evidence. The accused also has the opportunity to say what he
wants when he is being questioned generally.

3. The accused and his counsel are at liberty to address the court not simply on the issue of guilt but
also on the issue of sentencing.

• It is not that there was no scope at all under the earlier law for the Court to hear the parties on the
question of sentencing but that the scope was haphazard, random and uneven.

• There existed no definitive framework which would induce and equality of opportunity to the offenders
of being heard on the issue of questioning.

• It is in this context that the legislature designed Section 235 (2) of the Code of Criminal Procedure
1973 which makes pre-sentence hearing a mandatory element of the trial process.

BIFURCATION OF TRIAL UNDER SECTION 235 (2)

As has been noted in the case of Santa Singh v State of Punjab (1976), the purpose of behind enactment of
section 235 (2) is to bifurcate the entire criminal trial into two clearly divisible and identifiable phases-
 1. In phase one, the trial process concerns the determination of whether the accused person is guilty or
innocent.

2. In phase two, the trial process concerns the determination of the sentence which should be imposed on
the convicted person.

This view was reiterated in the case of Bachan Singh v State of Punjab (1982) wherein it was emphasised that
section 235 bifurcates the criminal trial into a pre-conviction and post-conviction phase with both being
equally important.

The Supreme Court in the case of Santa Singh v State of Punjab (1976) held that the term ‘hear the accused’
in section 235 (2) has been used in the context of providing the accused with the opportunity to place before
the court various circumstances which have a bearing on the sentence which may be passed against such
accused. For this purpose, the court held that the hearing contemplated under section 235 (2) should provide
the platform for all kinds of factors to be presented in the court which have a bearing on the question of
sentencing. The Court held that the hearing need not be confined to merely oral submissions and the parties
are free to place such facts and materials before the court which they feel is relevant for the question of
sentencing.

If the facts or materials placed on record by one party are not agreed upon and are contested by the other party,
then the parties can also produce evidence in support of their claim.

This view regarding adducing evidence as to circumstances relevant to sentencing was also endorsed by the
Law Commission of India in its 48th Report.

This view was emphatically reiterated in the case of Bachan Singh v State of Punjab (1983). The Court held
that though Section 235 (2) does not make any specific mention regarding adducing evidence and only
provides for hearing of the accused, it is implicit in the provision that if either of the parties make a request
for producing evidence or other materials having a bearing on the issue of sentencing, the court should grant
such permission.

The Court in Santa Singh v State of Punjab (1976) has however cautioned that the hearing contemplated in
section 235 (2) should not be abused and used as a modality for undue protraction of the proceedings. The
court noted that it has not been the parliamentary intent to provide a platform for delaying tactics under the
cover of pre-sentence hearing.

FACTS RELEVANT FOR SENTENCING ARE SPECIAL AND DIFFERENT

• Once it is established that evidence can be adduced in a hearing under Section 235 (2), it is important
to note that the nature of facts relevant in a pre-sentence hearing are significantly different than the
ones which are relevant in a pre-conviction hearing.
 • Till the time a person is convicted of crime, all facts which have a bearing on the innocence or guilt of
the accused are relevant to the parties and to the court.

• However, for the purpose of determining the sentence of person already convicted, many of such facts
may no longer be relevant.

• For example, the manner of commission of crime may be relevant for both the purpose of conviction
and for the purpose of sentencing.

• However, the social status of the offender or his educational qualifications are not at all relevant in
determining his guilt but may be important information in determining his sentence.

• Thus, many social and personal facts pertaining to the offender which may not be relevant for the
purpose of determining the guilt may be extremely important for deciding upon the sentence to be
passed.

• Sevaka Perumal v State of Tamil Nadu (1991).- The principles of law applicable in relation to the pre-
sentence hearing also vary from that of a pre-conviction hearing. This has been most suitably
exemplified in the case of Sevaka Perumal v State of Tamil Nadu (1991). In this case, the argument
before the Supreme Court was against the death penalty awarded to A-1. The petitioners argued that
since A-2 was acquitted from the charge of murder having been given the benefit of doubt, A-1 should
not be punished with the death penalty and should instead be given a similar benefit of doubt. The
Court held that the principle of benefit of doubt operates only so far as the issue concerns the
commission of an offence and the guilty of an accused.

Once the guilt of an accused has been proved beyond reasonable doubt, the same principle does not control
the decision of the Court regarding imposition of an appropriate sentence

CONSEQUENCES OF NON-COMPLIANCE WITH SECTION 235 (2)

• The language in section 235 (2) is that the Court ‘shall’ hear the accused and not that the court ‘may’
hear the accused on the question of sentencing.

• The requirement of the pre-sentence hearing as mandated under section 235 (2) has been held to be
obligatory in nature.

• Failure to comply with the requirements of section 235 (2) before awarding a sentence will vitiate the
final order of the court.

• Not hearing the accused before passing a sentence is as fatal to the case as not hearing the accused
before pronouncing him guilty.

• The pre-sentence hearing is not supposed to be a ritualistic or symbolic exercise and is supposed to be
a substantial exercise in the criminal justice administration.
 • The provision of pre-sentence hearing under section 235 (2) are fundamental and indispensible in the
administration of criminal justice its non-compliance results in implicit and inherent prejudice to the
accused.

• Imposition of a sentence on the accused while completely depriving him of the opportunity to present
his case in relation to the proposed sentence is a violation of the principles of natural justice

• The same was evidenced in the case of Alluddin Mian v State of Bihar (1989) wherein a sentence of
death awarded by the trial court and confirmed by the High Court was overturned by the Supreme
Court on the ground that section 235 (2) was not complied with before determining the sentence.

• The court noted how the true motive of the murders were never enquired into and other important
details like antecedents of the accused, socioeconomic conditions of the accused, the impact of the
crime on the community have not been brought on record.

• Till the decision regarding the guilt of the accused is reached, the courts are occupied with facts which
have a bearing on the guilt and innocence of the accused and do not get the scope to judge the
implications of the sentence they seek to impose subsequent to the conviction.

• Thus, section 235 (2) not only provides the parties a chance of being heard before a sentence is passed
but also provides the Court with the valuable opportunity to be better informed before passing a
sentence.

TO SUM UP

1. The function of criminal law does not end with the mere determination of the guilt of an accused as it
does in case the accused is adjudged innocent.

2. Section 235 (2) of the Code of Criminal Procedure 1973 provides that once the accused is convicted
of an offence and the court is not proceeding on the line of probation, the court must hear the accused
on the question of sentencing and then pass a sentence according to law.

3. It is not that there was no scope at all under the earlier law for the court to hear the parties on the
question of sentencing but that the scope was random and uneven.

4. Section 235 bifurcates the criminal trial into a pre-conviction and post-conviction phase with both
being equally important.

5. Though Section 235 (2) does not make any specific mention regarding adducing evidence and only
provides for hearing of the accused, it is implicit in the provision that if either of the parties make a
request for producing evidence or other materials having a bearing on the issue of sentencing, the court
should grant such permission.
6. Thus, many social and personal facts pertaining to the offender which may not be relevant for the
purpose of determining the guilt may be extremely important for deciding upon the sentence to be
passed.

7. The provision of pre-sentence hearing under section 235 (2) are fundamental and indispensable in the
administration of criminal justice its non-compliance results in implicit and inherent prejudice to the
accused.

8. Non-compliance with Section 235 (2) is not a mere technical irregularity which can be cured under
section 465 of the Code of Criminal Procedure and it will vitiate the entire order.
 MODULE 3

HISTORY OF PRISON SYSTEM & PRISON SYSTEM IN INDIA

INTRODUCTION
The term prison is derived from the Latin term which means to seize. Prison institutions are also known as
‘Correctional Facilities’, ‘Detention Centre’, ‘Jails’, ‘Remand Centre’ etc. Prison means a place in which
persons are kept in custody when trail is pending or in which they are confined as punishment after conviction.
The system of imprisonment represents a curious combination of different objectives of punishment. Thus,
prison may serve to deter the offender or it may be used as a method of retribution or vengeance by making
the life of the offender miserable and difficult. The isolated life in prison and incapacity of inmates to repeat
crime while in the prison, fulfils the preventive purpose of punishment. It also helps in keeping crime under
control by elimination of criminals from the society. That apart, prison may also serve as an institution for the
reformation and rehabilitation of offenders. It therefore, follows that whatever be the object of punishment,
the prison serves to keep offenders under custody and control.
The attitude of society towards prisoners may vary according to the object of punishment and social reaction
to crime in a given community. If the prisons are meant for retribution or deterrence, the condition inside them
shall be punitive in nature inflicting greater pain and suffering and imposing severe restrictions on inmates.
On the other hand, if the prison is used as an institution to treat the criminal as a deviant, there would be lesser
restrictions and control over him inside the institution.
The modern progressive view, however, regards crime as a social disease and favours treatment of offenders
through non-penal methods such as probation, parole, open jail etc. Whatever be the reaction of society to
crime, the lodging of criminals in prison gives rise to several problems of correction. rehabilitation, and
reformation which constitute vital aspects of prison administration.
It is significant to note that the prison inmates are to be dealt with different punishments because uniform
punishment for all of them would hardly serve the ends of justice. It therefore, necessitates classification of
prisoners into different categories depending on the gravity of their offence and the term of punishment
awarded to them. Proper classification of offenders for the purpose of treatment is pre-condition for an ideal
penal program. The introduction of modem classification methods in prisons are essentially directed to meet
this end.
Since the present day penology centres round imprisonment as a measure of rehabilitation of offenders, the
prisons are no longer mere detention houses for the offenders but they seek to reform inmates for their future
life. The modern techniques of punishment lay greater emphasis on reformation, correction and rehabilitation
of criminals.

Prisons‟ is a State subject under List-II of the Seventh Schedule to the Constitution of India.
The management and administration of Prisons falls exclusively in the domain of the State Governments, and
is governed by the Prisons Act, 1894 and the Prison Manuals of the respective State Governments. Thus,
States have the primary role, responsibility and authority to change the current prison laws, rules and
regulations.

HISTORY OF PRISON SYSTEM

The institution of prison is indispensable for every country. The history of prisons in India and elsewhere
clearly reflects the changes in society's reaction to crime from time to time. Initially, prisons were used as
detention houses for under-trials. Persons who were guilty of some political offence or war crime or who
failed to pay their debts or fines were lodged in prison cells with a view to extracting confession from them
or securing the payment of debts o fines. Subsequently, with the march of time and advancement of knowledge
and civilisation, the conditions of prisons also improved considerably.

The modern prison system in India is essentially based on the British prison model which in itself is an
outcome of prison developments in America during the late eighteenth century.

THE AMERICAN PRISON SYSTEM

The medieval period in the history of American colonies witnessed an era of barbarism and deterrent
punishment for criminals. The offenders were mercilessly tortured and brutally treated. Even for minor
offences they were subjected to sever punishment such as death, public humiliation, whipping and so on.
Those who were to be tried for political offences, war-crimes or blasphemy, were kept in prison as undertrials.

Thus, imprisonment was used only in rare cases. The life inside the prison was hard, unbearable and painful.
With the march of time, public opinion mobilised against these barbarous methods of treating the prisoners
which eventually led to the passing of famous Penn's Charter of 1862.

Penn's Charter of 1862

The main object of this Charter was to put an end to brutal methods of punishment on humanitarian grounds
and bring out reforms in prison administration. The Charter inter alia contained that :-

1. The practice of releasing prisoners on bail should be introduced.

2. Compensation should be allowed to persons who were wrongfully imprisoned and this amount should
be double the amount of lost actually suffered by the victim of the offender's act.
3. Prisoners should be allowed the choice of their food and lodging to certain extent.
4. The system of pillory'.i.e. punishing the offender in public places should be abolished.
 5. In Pennsylvanian system the prisoners were to live and work in isolated cells and therefore, they could
not even know each other while the Auburn system provided congregate work in shops during day
where the prisoners could see and know each other but could not, however communicate.

6. It is primarily, for this reason that Donald Taft characterised the Pennsylvanian system as the separate
system and the Auburn system as the silent system.

THE ELMIRA REFORMATORY

The Elmira Reformatory in New York which provided for indeterminate sentence, parole and probation. The
inmates were categorised as hardened criminals and incorrigibles for the purpose treatment in prison.With
new developments in penology during the early decades of twentieth century, the prisons no longer remained
the dump-houses for convicts but were used as places of industry to train inmates for skilled work. This
obiviously served a dual purpose. .

Firstly, it helped in the rehabilitation of prisoners, and secondly, work in prisons kept inmates engaged during
their stay in prison, with the result they were mentally and physically fit to return as a useful member of society
after their release. It was around 1930 that individualisation of prisoners became the object of punishment and
hence the criminals were graded not according to their age, sex or dangerousness but according to their
individual needs and chances of rehabilitation.

The Illionis Prison, 1933

The opening of Reception Centre at Illionis in 1933 marked the beginning of reformative era in the American
prison system. The cells in this prison were airy, ventilated and equipped with adequate arrangement of lights.
The conditions of health and sanitation were considerably improved and inmates were provided facilities for
reading, writing and schooling. Adequate arrangements were also made for physical exercise and recreation
of inmates.The prisoners were to dine together in a common mess and they could meet their relatives and
friends on certain fixed days.

The sentence of solitary confinement was completely abolished and general tendency was to narrow down the
gap between the outside free-life and the life inside the prison to the maximum possible extentUntil the mid-
half of the 20th century, even the U.S. Courts had little regard for the rights of prisoners as they believed that
as a result of his conviction the prisoner has "forfeited his liberty and personal rights except those which the
law in its humanity accords to him". However, this attitude of indifference has now radically changed due to
human rights consciousness of the American Judges and the constitutional rights of prisoners in USA are now
well honoured and safeguarded

THE BRITISH PRISON SYSTEM

Like United States, in England also, the prisoners were treated brutally and punishments were barbarous in
nature. John Howard, in his famous work entitled, The State of Prisons' has described the awful condition of
British prisons during the eighteenth century.
 • The prisons according to him were damp and vermin infected and were the places full of filth,
corruption, sex indulgence and all sorts of vices.

• Beccaria was the first European criminologist who raised a voice against the continuance of harsh and
painful treatment to convicted prisoners.

• Pope XI also advocated the cause of human treatment to inmates in prisons.

THE BEGINING OF PRISON-REFORMS IN U.K.

The Act of 1778 passed by the British Parliament marks the beginning of prison reforms in England. The Act
contained elaborate provisions relating to prison reforms. The entire working of prisons was remodeled Under
the new system, the inmates were put to work during day and kept in solitary cells during night.

Efforts were made to make them understand that despite their offensive acts, they still had a chance of
rehabilitating themselves in the community after their release from jail. By 1833, the inmates could meet their
friends and relatives more frequently at fixed intervals and outside visitors were also permitted to go around
the prison and hear complaints from the inmates.

Some significant changes were further introduced in the prison administration in the later half of the 19th
century. In order to ease the pressure on British prisons, the prisoners were released on Ticket on leave' on
condition that they would not resort to criminality. By this time the prison administration was transferred from
local municipal authorities to the national Government by the Act of 1877 which was a landmark change in
the history of prison development in Britain.

In 1894, Gladstone Committee recommended the abolition of unproductive labour in prisons and emphasised
the need for work in groups and improved classification of prisoners. The Committee also recommended
separate reformatories for juvenile offenders. As a result of the Committee's recommendations the Prison Act
was enacted in England in 1898, which was followed by the Children Act, 1908.

The salient features of the present prison system in Britain may be summarised as follows:-

1. The prisoners are classified into different categories through Group therapy method.

2. The inmates are provided vocational training inside the prison for their physical, moral and mental
upliftment.

3. After the prisoner's release from the prison, his rehabilitation and socialisation is entrusted to after care
institutions or voluntary social service organisations.

4. Prisons are treated as minimum security institutions wherein basic rights of prisoners should be duly
recognized.

HISTORY OF PRISON SYSTEM IN INDIA

A well-organised system of prisons is known to have existed in India from the earliest times. It is on record
that Brahaspati laid great stress on imprisonment of convicts in closed prisons. In ancient India, greater
emphasis was laid on the spiritual aspect of human life and therefore, prisons were so modelled as to provide
sufficient opportunity for penance

It was a common practice to keep the prisoners in solitary confinement so as to afford them an opportunity of
self-introspection.The object of punishment during the Hindu and Mughal period in India was to deter
offenders from repeating crime. The recognised modes of punishment were death sentence, hanging,
mutilation, whipping, flogging, branding or starving to death.

During the Mughal rule in India the condition of prisons was awfully draconic. The prisoners were ill-treated,
tortured and subjected to most inhuman treatment. They were kept under strict surveillance and control. The
prisons were places of terror and torture and prison authorities were expected to be rough and tough in
implementing the sentences.

PRISONS IN BRITISH INDIA

The concept of modern prison in India began with the sugestions of TB Macaulay in 1835. Introduced radical
changes in the then existing prison systemClassified the prisoners into two heads namely, violent and
nonviolent prisoners. The Prison Enquiry Committee appointed by the Government of India in 1836
recommended for the abolition of the practice of prisoners working on roads.

Adequate steps were also taken to eradicate corruption among the prisons staff.An official called Inspector
General of Prisoners was appointed for the first time in 1855, who was the Chief Administrator of prison in
IndiaHis main function was to maintain discipline among the prisoners and the prison authorities.

Conditions of prisoners were harsher than animals in India and prisoners were treated with hatred. The Prison
Act was passed by the Government of India in 1870. This Act laid down that there should be a Superintendent,
a medical officer, a jailor and some other subordinate officers as the local government thinks necessary. This
Act also specified and categorised the duties of the prison officers. This Act also provide provision related to
the separation of male prisoners from female, separation of children offenders from adult, and separation of
criminal from civil offenders.

On the recommendations of the committees the Prison Act 1894 was passed. Due to the effect of this Act there
was a considerable material progress in the concept of jails during this period. In 1919 the British government
appointed a joint commission of officials which investigate about the management of jails and suggest
improvement in the maintenance of jails. This commission gave recommendations related to the separate
institution like Borstal school for juvenile delivements. Offenders whose trial is pending should be kept
separate from the convicted offender, there should be classification of habitual and casuals offenders between
the adults.
The report of the committee also through some light on the view of the transportation of offenders to the
Andaman Island and recommended to stop this practise. Solitary confinement was also abolished after this
report. All convicts who were the below of 29 years of age were to be cared under the adult education
programmes and libraries were also established in the jails. The quality of food was also improved and two
pairs of clothes should be provided to the prisoners.

The main idea or purpose of the committee was the reformation of the inmates which was the ultimate object
of imprisonment and rehabilitation of prisoners as social necessity.
This prison reform system received a sudden obstruction due to the constitutional changes which was brought
by the Government of India Act, 1919. This Act transferred the control of the Jail Department from the
Government of India to the Provincial Government.

After the Independence of India there was increasement in the reforms of prison. Indian leaders were ready
with blue print for the industrial development of the country, but the jail reforms could not escape their eyes
as all of them passed their prime life in the jail. Under the Indian constitution prison administration was the
subject of state. This organisation was headed by the Inspector General of Prisons. This organisation consist
several central prisons, sub jails, district jails. All states adopt different patterns of jail administration. The
central jails are intended for long term prisoners who were convicted in court.

PRISONS ACT, 1894

• The Prisons Act, 1894 regulates the prison system.

• It contains XII Chapters and 62 sections

• The Act lists out the duties of the various categories of prison officials

• The Act provides for classification of prisoners and the sentences of whipping was abolished.

• The rights of prisoners are covered under the Prison Act, 1894.

• The Management of the prisons in all matters relating to discipline, labour, expenditure, punishment
and control shall be under the Superintendent, subject to the orders of the Inspector General

• The Act lays down the details regarding records to be maintained, the medical and employment
programmes etc., in prisons.

• It provides for separation, of male and female prisoners, of male prisoners under the age of 21 years
and those above it, of unconvicted and convicted prisoners and of civil and criminal prisoners.

The Act also prescribes the number of hours the criminal prisoners should be kept on work. From a
correctional point of view the significance of the Act lies in its provision for classification, award of marks,
shortening of sentences, reward for good conduct and lastly prison employment for which the state
government may make rules.
PRISON OFFENCES IN PRISONS ACT, 1894

• willful disobedience to any regulation of the Prison

• Any assault or use of criminal force

• The use of insulting or threatening language

• Immoral or indecent or disorderly behaviour

• Willfully disabling himself from labour refusing to work

• Willful idleness or negligence at work by any prisoner sentenced to rigorous imprisonment
• Willful mismanagement of work by any prisoner sentenced to rigorous imprisonment

• Willful damage to prison property

• Tampering with or defacing any records or documents
• Receiving possessing or transferring any prohibited article

PUNISHMENT FOR SUCH OFFENCES

The Superintendent can punish such offences by:

• formal warning- recorded in punishment book and on prisoners history ticket

• Change of labour to some severe form

• Hard labour for a period not exceeding seven days in the case of convicted criminal prisoners not
sentence to rigorous imprisonment

• loss of privileges admissible under the remission system

• Imposition of handcuffs
• Separate confinement for any period not exceeding three months
• Penal diet- prescribed by the state government (not more than 96 hours and repeat after an interval of
1 week)

• Cellular confinement for any period not exceeding fourteen days

• Penal diet combined with cellular confinement

SOME COMMITTEE RECOMMENDATIONS

RECOMMENDATIONS OF THE MULLA COMMITTEE

 The condition of prisons should be improved

 The prison staff should be properly trained and organized
 After-care, rehabilitation and probation should constitute an integral part of prison service.
 The media and public men should be allowed to visit prisons

 Lodging of under trials in jail should be reduced to bare minimum and they should be kept separate
from the convicted prisoners.
THE KRISHNA IYER COMMITTEE

• In 1987, the Government of India appointed the Justice Krishna Iyer Committee to undertake a study
on the situation of women prisoners in India.

• There should be necessary provisions to restore the dignity of women even if convicted under criminal
code. Government should make use of all possible material, moral and spiritual resources for the
purpose.

• It has recommended induction of more women in the police force in view of their special role in
tackling women and child offenders.

ACTS GOVERNING PRISONS

• The Indian Penal Code, 1860.

• The Prisons Act, 1894.

• The Prisoners Act, 1900.

• The Identification of Prisoners Act, 1920.
• Constitution of India, 1950

• The Transfer of Prisoners Act, 1950.

• The Representation of People‟s Act, 1951.
• The Prisoners (Attendance in Courts) Act, 1955.

• The Probation of Offenders Act, 1958.

• The Code of Criminal Procedure, 1973.
• The Mental Health Act, 1987.

• The Juvenile Justice (Care & Protection) Act, 2000.

• The Repatriation of Prisoners Act, 2003

The Supreme Court of India- three principles

1. A person in prison does not become a nonperson;

2. A person in prison is entitled to all human rights within the limitations of imprisonment; and

3. There is no justification for aggravating the suffering already inherent in the process of incarceration
Types Of Prison In India

In India there are three levels of Prison such as Taluka level, district level and central level (sometime it is
also known as zonal /range level). The jails in these levels are known as Sub jails, district jails and central jails
respectively. In general the infrastructure, security, medical facilities, educational and rehabilitation facilities
are better from sub jail to central jail. There are also some other types of jail such as women jails, Borstal
school, open jails, and special jails.

Central Jail

The criteria for dividing a jail as a central jail are different from state to state. The common feature of all states
central jail is that those prisoners are confined in the central jails who are sentenced to imprisonment for a
long period that is more than two years. These jails are made for lifers and for those people who commit
heinous crime. In this type of prison, effort is made to re-establish the morality and integrity of the prisoners.

District Jail

There is not much difference between the central jails and district jails. District jails are the main jails for those
states and union territories where there is no central jail.

Sub Jails

In India these sub jails play the role of the sub-divisional jails. These jails are the smaller institution situated
at the sub- divisional level of the state. These jails have the well organised and better set up of prison because
they are formed at the lower level.

Open Jails
The name of these types of jails may appear contradictory but this is true. These jails are the minimum security
prisons. According to the Rajasthan Prison Rules open jails means the prison without walls,bars and locks. In
these jails only those convicted prisoners are admitted who possess good behaviour and satisfying the norms
which are prescribed in the prison rules. Minimum security is kept in these jails and prisoners are engaged in
the agricultural activities and allowed to earn for their families.

Special Jail

These jails are the maximum security prisons and have special arrangements for the prisoners. In these jails
prisoners of particular class or classes are confined. Prisoners who are confined in special jails are those who
are convicted for the offence of terrorism, violent crimes, habitual offenders, serious violation of prison
discipline and inmates are violent and aggressive towards other inmates.

Women's Jails

Women's jails are those which are exclusively only for the female prisoners. These jails are established for the
safety of the women prisoners. These jails comprise of female staff members. These jails are existing at sub-
divisional, district and central level.

Borstal School

It is a type of youth detention centre and is used exclusively for the confinement of minors or juveniles. The
main and primary object of these schools are to ensure care, welfare and rehabilitation of young offenders in
which environment which is suitable for children and keep them away from infecting atmosphere of the prison.
The juveniles in conflict with law are detained in Borstal School and provide various vocational and
educational training with the help of trained teachers. For the reformation of juvenile and to prevent him from
crime main emphasis given to the education, training and moral influence.
Prison Problems
The Supreme Court in Rama Murthy v. State of Karnataka, identified as many as nine issues facing prisons
which need reforms. They are:
(1) Overcrowding:
(ii) Delay in trial;
(iii) Torture and ill-treatment
(iv) Neglect of health and hygiene
(v) Insufficient food and inadequate clothing
(vi) Prison vices
(vii) Deficiency in communication
(viii) Streamlining jail visits
(ix) Management of open air prisons.

Thus, a prison is something that is defined as a place of incarceration used for the individuals who have
committed an offence and whose trial is pending.
Prison and their administration is a State subject covered by item number 4 under the state list of seventh
schedule of Indian Constitution. State government has exclusively power related to the management and
administration of prison. It is governed by the Prison Act 1894 and the prison manuals of the respective state
governments. The state has primary role and responsibility and authority to change the current prison laws,
rules and regulations.
The central government only have power to give assistance to the states to improve security in prisons, medical
facilities, for the repair and renovation of old prisons, development of borstal schools, facilities to women
offenders, vocational training, modernisation of prison industries, training to prison personnel and for the
creation of high security enclosures.

PRISON SYSTEM IN KERALA

• The Department is functioning under the Administrative Control of Home Department.

• The Prison Administration in Kerala is decentralized and organized into three ranges i.e.
 South Zone
 Central Zone and
 North Zone.

GOVERNANCE
(a) DIRECTORATE:
• The Director General of Prisons & Correctional Services is Head of the Department of Prisons and
Correctional Services at State level and is assisted by Headquarters Deputy Inspector General of
Prisons and other supporting staff.
(b) REGIONAL ADMINISTRATION
Deputy Inspector General of prisons heads each ranges: South Zone, Central Zone and North Zone

ACTS
 • 1. Rights to Service Act 2012
• 2. The Kerala Prisons and Correctional Services Management Act 2010
• 3. The Kerala Borstal School Act 1961
• 4. The Travancore Cochin Prisons Act 1950 (Act XVIII of 1950)
• 5. The Prisons Act 1894 (Central Act IX of 1894)

RULES
• 1. The Kerala Prisons and Correctional Services Management Rules 2014
• 2. The Kerala Sub Jail Rules 1959
• 3. The Kerala Prisons Rules 1958
MANUAL
• 1. The Kerala Prison Manual 1979
SERVICE RULES
• 1. The Kerala Jail Service Amendment Special Rules 2010
• 2. The Kerala Jail Subordinate Service (Amendment) Rules 2010

KINDS OF PRISONS IN KERALA

CENTRAL PRISON – 4

• Central Prisons & Corrcetional Homes are meant for confining persons sentenced to undergo
imprisonment above 6 months, detenues, prisoners convicted by Court Martial and civil prisoners.

• Remand / Under Trial prisoners are also accommodated there, when overcrowding is felt in nearby
District Jails/Special Sub Jails/Sub Jails.

• There are 4 Central Prison & Correctional Homes, situated at Thiruvananthapuram, Thrissur, Kannur
and Malappuram.

HIGH SECURITY PRISON

• The first high security prison in the State was opened at Viyyur on July 03, 2019. The Jail, constructed
with state-of-the-art security facilities, has the capacity to house 600 prisoners. It has 192 cells. The
three-storey building is situated in a nine-acre compound and has an administrative block.

• A body scanner has been installed at the prison as part of the security arrangements. A biometric
fingerprint lock system is also in place for the entry and exit of staff and others. Cells have been built
 in such a manner that the inmates in the other cells will not see each other. CCTV cameras have been
installed in all cells and premises.

OPEN PRISONS -3
• Open Prison & Correctional Homes are Prisons without walls having minimum security.

• There are 2 Open Prison & Correctional Homes for male prisoners situated at Nettukaltheri,
Thiruvananthapuram and Cheemeni, Kasargod and the only one Open Prison & Correctional Home
for female prisoners is situated at Poojappura, Thiruvananthapuram.

DISTRICT JAILS -13

• District Jails are meant for confining persons sentenced to undergo imprisonment up to 6 months
besides Remand / Under Trial prisoners.

• There are 13 District Jails, situated at Thiruvananthapuram(Poojappura), Kollam, Pathanamthitta,

Alappuzha, Kottayam, Idukki
(Muttom),Ernakulam,Thrissur(Viyyur),Palakkad(Malampuzha),Kozhikode,Kannur,Wayanad
(Mananthavady) and Kasaragod (Hosdurg).

SPECIAL SUB JAIL -15

• Special Sub Jails are meant for confining persons sentenced to undergo imprisonment up to 3 months
besides Remand / Under Trial prisoners.

• There are 15 Special Sub Jails, situated at Thiruvananthapuram(Poojappura), Neyyattinkara,

Kottarakkara,Mavelikkara, Ponkunnam, Devikulam, Muvattupuzha, Irinjalakkuda, Chittoor, Manjeri,
Kozhikode, Vythiri, Kannur, Thalassery, Kasaragod.

SUB JAILS -16

• Sub Jails are meant for confining persons sentenced to undergo imprisonment up to one month besides
Remand / Under Trial prisoners.

• There are 16 Sub Jails, situated at Attingal, Meenachil, Peerumade, Mattancherry, Ernakulam, Aluva,
Chavakkad, Viyyur, Alathur, Ottappalam, Perinthalmanna, Ponnani, Tirur, Koyilandy, Vatakara,
Kannur.

WOMEN PRISONS 3

• Women Prison & Correctional Homes are meant for confining women offenders sentenced to undergo
imprisonment irrespective of tenure and all Remand / Undertrial women prisoners.

• Three Women Prison & Correctional Homes are situated at Thiruvananthapuram, Viyyur and Kannur.
BORSTAL SCHOOL

• Borstal School is meant for housing adolescent offenders between the age of 18 – 21. It is situated at
Thrikkakkara, Ernakulam. It was shifted from Kannur on 05.08.1995.

DRAWBACKS IN THE PRISON SYSTEM

The Supreme Court in Rama Murthy v. State of Karnataka, identified as many as nine issues facing prisons
which need reforms. They are:

(1) Overcrowding:

(ii) Delay in trial;

(iii) Torture and ill-treatment

(iv) Neglect of health and hygiene

(v) Insufficient food and inadequate clothing

(vi) Prison vices

(vii) Deficiency in communication

(viii) Streamlining jail visits

(ix) Management of open air prisons.

OVER CROWDING

Congestion in jails, particularly among undertrials has been a source of concern. Law Enforcement Assistance
Administration National Jail Census in 1970 had revealed that 52% of the jail inmates were awaiting trial.

Obviously, if prison overcrowding is to be brought down then the under-trial population has to be reduced
drastically. This cannot happen without the courts and the police works together. The wings of the criminal
justice system would have to act harmonically.

Speedy trials are frustrated by a heavy court workload and complicated procedures, police’s inability to
produce the witnesses promptly, and a defense lawyer who was bent upon seeking adjournments, even if such
tactics harm his/her client.
Fast track courts have helped to a much extent, but it has not made any measurable differences to the problem
of pendency. Increasing the number of courts could not bring about the desired difference as long as the current
`adjournments culture’ continues

India’s overcrowded prisons confined more than half a million inmates at the end of 2021, with a majority of
them being those under trial for crimes they had allegedly committed. Among the 5,54,034 inmates across
India’s prisons, 77.1% were under-trials and 22.2% were those who had been convicted by a court of law, data
from the National Crime Records Bureau (NCRB) shows. (Wire)

UNHEALTHY LIVING CONDITIONS

The overcrowding in the prisons leads to unsatisfactory living conditions. Although several jails have reformed
outlined earlier have focused on issues like diet, clothing, and cleanliness, unsatisfactory living conditions
continue in many prisons around the country.

STAFF SHORTAGE AND INADEQUATE TRAINING

Prisons in India have a sanctioned strength of around 49030 prison staff at various ranks, of which, the present
staff strength is around 40000.

The ratio between the prison staff and the prisoners in the Indian prison is approximately 1:7.

It means only one prison officer is available for 7 prisoners in India, while in the UK, 2 prison officers are
available for every 3 prisoners.

UNEQUAL TREATMENTS AT PRISON

Special privileges are accorded to the minority of the prisoners who came from the upper and middle classes
of their irrespective of the crimes they have committed or the way they comport themselves in prison.

INSUFFICIENT LEGAL AID

In India, legal aid to those who cannot afford to retain counsel which is only available at the time of trial and
not when the detainee is brought to the remand court.

Since the majority of prisoners, who are in lock up as well as those in prisons have not been tried, the absence
of legal aid until the point of trial reduces greatly the value of the country’s system of legal representation to
the poor.

The lawyers are not available at the point when many of them need such assistance.

INADEQUATE PRISON PROGRAM

Despite the problems of overcrowding, manpower shortage, and other administrative difficulties, innovative
initiatives have been undertaken in some prisons.
For example, the Art of Living is carrying out a SMART program in Tihar Jail. It includes two courses per
month with follow up of the sessions every weekend.

A Srijan project is aimed at providing social rehabilitation there. Still, such programs are few and far from
Indian prisons.

In India, many prisons have vocational training activities, but these are often outdated even. Hardly any of the
prisons have well-planned prison programs providing daily structured activities, vocational training, pre-
discharge guidance, and post-prison monitoring.

ABUSE OF PRISONERS

Physical abuse of prisoners by the guards is another chronic problem in the prisons of India. Some countries
are still continuing to permit corporal punishments and the routine uses of leg irons, fetters, shackles, and
chains.

In many prison systems in India, unwarranted beatings are an integral part of prison life. Women prisoners in
Indian prisons are particularly vulnerable to custodial sexual abuse.

CUSTODIAL TORTURES /DEATHS

The torture brutal physical treatment in custody by police official is another major Problem of jails in India.

Third degree tortures within four walls of prison occur frequently and many times they remain unnoticed, such
cases comes light when media or human rights commission gives any attention on it.

The proper treatments of inmates mentioned in the prison acts and in various manuals along with the guidelines
of the apex courts are neglected by the police staff and sometimes it lead to deaths of prisoner under the
custody.

These tortures make victim to suffer mentally and physically and sometimes it gets long time for them to
recover from that trauma.

The Reports of national human rights commission and state human right commission depicts growth of such
incidents in last two decades.

SUGGESTIONS

 The basic dignity of an arrested person or convicted person must be given proper respect.
 Protections of such dignities are mentioned in the universal declaration of human rights as well as
under Article 21 of the Indian constitution.
 It is the need of the hour that provisions of the security of prisoners mentioned in jail manuals must be
followed strictly and also well-equipped and trained prison staff should be appointed to look for safety
measures.
 Regular and timely inspections from judicial officers must be conducted.
  All the organs of police and administration must combine together so that effective social rehabilitation
of inmates can be secured.
 There is a need to make jails modern and technologically adept with stringent security measures.
 It is also required to introduce better living and health facilities, libraries, and training programs for
prisoners to help them get back into society and initiatives to promote mental development.
 if prison overcrowding is to be brought down then the under-trial population has to be reduced
drastically and this cannot happen without the courts and the police working together.

WOMEN PRISONERS

As per Prison Statistics India 2021 of NCRB, Out of the total 1,319 prisons in the country, 32 are Women
Jails. Only 15 States/UTs were having Women Jails (32 Women Jails) with a total capacity of 6,767 in India.

These States/UTs (Number of Jails) (Capacity) are Rajasthan (7) (998), Tamil Nadu (5) (2018), Kerala (3)
(232), Andhra Pradesh (2) (280), Bihar (2) (202), Gujarat (2) (410), Uttar Pradesh (2) (540), Delhi (2) (680),
Karnataka (1) (100), Maharashtra (1) (262), Mizoram (1) (96), Odisha (1) (55), Punjab (1) (320), Telangana
(1) (260) and West Bengal (1) (314) and the rest of 21 States/UTs have no separate Women Jail as on 31st
December, 2021.

The occupancy rate in Women Jails was 56.3% as on 31st December, 2021. The occupancy rate of women in
other jails is 84.4%.

Thus, a majority of women inmates are housed in women’s enclosures of general prisons.

SPECIAL PROCEDURE FOR ARREST OF WOMEN

The CrPC contains certain special provisions for the arrest of women – the arrest of women after sunset and
before sunrise (except with the prior permission of Judicial Magistrate First Class) is prohibited and a female
arrestee is mandated to only be searched by a female officer with due regard to decency.

The police official arresting the woman should ideally be dressed in plain clothes and not their uniform so as
to reduce the stigma associated with incarceration.

Provisions should also be made for the custody of minor children of the woman at the time of arrest. She must
provide in writing the name and details of the person with whom she wishes her minor children to stay during
her period of incarceration, and this must be complied with strictly. In case where no family/friends are
available to care for the child and he/she cannot accompany the mother to prison, the child should be
appropriately plac ed in a Child Care Institution.

WOMEN PRISONER’S RIGHT UNDER THE PRISONER’S ACT, 1894:-

Section 27. Separation of prisoners.— The requisitions of this Act with respect to the separation of prisoners
are as follows:- (1) in a prison containing female as well as male prisoners, the females shall be imprisoned in
separate buildings, or separate parts of the same building, in such manner as to prevent their seeing, or
conversing or holding any intercourse with, the male prisoners

The United Nations Standard Minimum Rules for the Treatment of Prisoners

Separation of categories Rule 11 The different categories of prisoners shall be kept in separate institutions
or parts of institutions, taking account of their sex, age, criminal record, the legal reason for their detention
and the necessities of their treatment; thus: (a) Men and women shall so far as possible be detained in separate
institutions; in an institution which receives both men and women, the whole of the premises allocated to
women shall be entirely separate;

Rule 28 In women’s prisons, there shall be special accommodation for all necessary prenatal and postnatal
care and treatment. Arrangements shall be made wherever practicable for children to be born in a hospital
outside the prison. If a child is born in prison, this fact shall not be mentioned in the birth certificate.

Rule 48(2). Instruments of restraint shall never be used on women during labour, during childbirth and
immediately after childbirth.

Rule 81

1. In a prison for both men and women, the part of the prison set aside for women shall be under the authority
of a responsible woman staff member who shall have the custody of the keys of all that part of the prison.

2. No male staff member shall enter the part of the prison set aside for women unless accompanied by a woman
staff member.

3. Women prisoners shall be attended and supervised only by women staff members. This does not, however,
preclude male staff members, particularly doctors and teachers, from carrying out their professional duties in
prisons or parts of prisons set aside for women.

PROBLEMS - Ministry of Women and Child Development Government of India REPORT

 There is a huge shortage of staff in almost every jail of the country - The lack of staff in the context of
women prisoners translates to the reality that male staff often becomes responsible for female inmates,
 which is undesirable. The presence of women inmates necessitates gender-specific services, which
should be provided by female staff
 overcrowding is one of the key problems plaguing Indian prisons - The effects of overcrowding often
become even more pronounced in the case of women, as they are usually restricted to a smaller
enclosure of the jail due to lack of proper infrastructure for them
 women did not even have adequate sleeping arrangements in jails and had to sleep on the floor
 There are usually a small number of bathrooms and toilets catering to a disproportionately large prison
population
 Women’s health needs, covering mental, physical, sexual and reproductive health, require particular
attention.
 not only the absence of disease but also the presence of a feeling of wellbeing and happiness - Women’s
health needs, covering mental, physical, sexual and reproductive health, require particular attention.
 basic education is not universally available to women prisoners. Access to higher levels of education
is almost entirely missing - Visits by NHRC to various prisons have revealed that basic education is
not universally available to women prisoners. Access to higher levels of education is almost entirely
missing. Even in cases where libraries exist in jails, they are many times not accessible to women
inmates.
 prison administration must ensure that female inmates are paid at par with male inmates
 All staff assigned to work with women prisoners is to receive training on gender specific needs and
human rights of women
 Prison administrations should be extremely strict in dealing with cases of violence against women
prisoners.
 The social stigma attached to women living in prison is often so severe that female inmates do not
receive visits or phone calls very frequently.

KERALA

Women Prison & Correctional Homes serve as facilities for incarcerating female offenders, regardless of their
sentence length, as well as accommodating women prisoners awaiting trial or those under remand.

These institutions are located in three distinct areas: Thiruvananthapuram, Viyyur, and Kannur.
 MODULE 4

PROBATION

The criminal justice system is slowly advancing from being retributive to reformative. It has been realised that
incarcerating first time offenders often does no good as they may come into contact with hardened criminals,
and go their way. This is where the concept of probation becomes important. It is a kind of non-custodial
sentence, where the person is released so that he can associate with the people in society and lead a normal
life.

 The term Probation is derived from the Latin word ‘probare’, which means to test or to prove.

 which refers to determining if a person can live in a free society without breaching the law.

 The definition of probation in Webster’s dictionary is “any proceeding intended to ascertain character.”

 Therefore, probation refers to a period of proving.

 The criminal must demonstrate his eligibility for probation.

 The goal of probation is to help offenders improve their character and undergo long-term rehabilitation and

reformation.

 Probation entails changing a person’s habits in a positive direction.

 It serves as an alternative to imprisonment. In some circumstances of offenders, punishment won’t be effective.

 The goal is to provide an accused criminal with the opportunity for reformation that his imprisonment would deny

him.

 It is a reformative approach

 It is a kind of non-custodial sentence, where the person is released so that he can associate with the people in society

and lead a normal life.

 It has been realised that incarcerating first time offenders often does no good as they may come into contact with

hardened criminals, and go their way.

 Probation was developed as a result of the gradual transformation of the doctrine of deterrence into the principle of

reformation, which paved the way for the introduction of the clinical approach and the principle of individualization

in the treatment of offenders.

  It is a socialised penal device and an extramural alternative to institutionalisation.

 It is a treatment device, developed as a non-custodial alternative where guilt is established but it is considered that

imposing of a prison sentence would do no good.

 Imprisonment decreases the convict’s capacity to readjust to the normal society after the release and association

with professional delinquents often has undesired effects.

LAW OF PROBATION IN INDIA

Section 562 of the Code if Criminal Procedure, 1898, was the earliest provision to have dealt with probation.

 After amendment in 1974 it stands as S.360 of The Code of Criminal Procedure, 1974. S.361 makes it mandatory for

the judge to declare the reasons for not awarding the benefit of probation.

 In 1958 the Legislature enacted the Probation of Offenders Act, 1958 which lays down for probation officers to be

appointed who would be responsible to give a pre-sentence report to the magistrate and also supervise the accused

during the period of his probation.

CODE OF CRIMINAL PROCEDURE

Section 360. Order to release on probation of good conduct or after admonition.

 In Jugal Kishore Prasad v. State of Bihar (1972) 2 SCC 633., the Supreme Court explained the rationale of the

provision:

“The object of the provision is to prevent the conversion of youthful offenders into obdurate criminals as a result

of their association with hardened criminals of mature age in case the youthful offenders are sentenced to undergo

imprisonment in jail.”

Section 360(1)

 Having regard to the age, character or antecedents of the offender, and the circumstances in which the offence was

committed,

 if the Court convicting the accused person considers it expedient to release the offender on probation of good conduct

(instead of sentencing him at once to any punishment),

  it may direct the offender to be released on his entering into a bond, with or without sureties, to appear and receive

sentence when called upon

 during such period (not exceeding three years) as the court may fix and in the meantime to keep the peace and be of

good behaviour.

Such a release is permissible only if the following conditions are satisfied:

 There is no previous conviction proved against the offender.

 When the person convicted is a woman of any age, or any male person under 21 years of age, and the offence of

which he or she is convicted is not punishable with death or imprisonment for life.

 When the person convicted is not under 21 years of age, and the offence of which he is convicted is punishable with

fine only or imprisonment for a term of seven years or less.

 No offender can as a matter of right, on fulfilling the conditions laid down in this section, claim to be released on

probation of good conduct.

 It is a discretionary power given under this section to the court.

RELEASE AFTER ADMONITION

Section 360(3)

 Having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial

nature of the offence or any extenuating circumstances under which the offence was committed,

 the court may, after convicting the accused person, release him after due admonition.

 Such a release is permissible only if the following conditions are satisfied:

 There is no previous conviction proved against the accused person.

 The offence of which he has been accused of is either theft, theft in a building or dishonest misappropriation or is

punishable under the IPC with not more than 2 years’ imprisonment or is one punishable with fine only.

BREACH OF RECOGNISANCES

Section 360(8) & Section 360(9)

In case the offender fails to observe the conditions of his recognizance, the court which convicted the offender or any court

which could have dealt with him in respect of his original offence may issue a warrant for his apprehension and when brought

before it may either remand him in custody until the case is heard or admit him to bail with a sufficient surety and after hearing

the case, pass sentence.

SECTION 360 OF CRPC AND PROBATION OF OFFENDERS ACT EXCLUSIVE OF EACH OTHER

Section 360 itself makes it quite clear that it shall not affect the provisions of the Probation of Offenders Act.

 According to Section 18 of POA read with section 8(1), General Clauses Act, 1897, Section 360 of the Code would

cease to apply to the States or parts thereof in which the POA is brought into force.

 However, the offender can be still released after admonition or on probation of good conduct under sections 3 and 4

POA which is wider in its scope than the provisions of section 360.

Chhanni v. State of Uttar Pradesh 2006 Cri. L.J. 4068 (S.C.)., is a case relating to applicability of section 360, Cr.P.C. In the

instant case it was held that provisions of the two statutes regarding probation have significant differences and they cannot

coexist. Hence, provisions of section 360 are wholly inapplicable in areas where Probation of Offenders Act is made

applicable. The difference between the two statutes is that section 360 of the Code relates only to persons not under 21 years

of age convicted for an offence punishable with fine only or with imprisonment for a term of 7 years or less, to any person

under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life.

The scope of section 4 of the probation of offenders act is much wider. It applies to any person found guilty of having

committed an offence not punishable with death or imprisonment for life. Therefore the court held that the provisions in the

two statutes with significant differences could not be intended to co-exist at the same time in the same area.

ADMONITION V. PROBATION

Jai Narain v. Municipal Corporation of Delhi (1972) 2 SCC 637 an inconsistency has crept in the point raised on
the appellant's behalf, in the formulation of the question for decision by the Supreme Court and in the answer thereto by the
Supreme Court. The appellant Jai Narain was an employee in a sweetmeat shop at New Delhi. On March 15, 1967 a Food
Inspector of the Municipal Corporation of Delhi purchased "Patisa" from him which, according to the report of the Public
Analyst, were prepared with unpermitted coaltar dye. The presence of unpermitted coaltar dye rendered patisa adulterated
under Section 2(i)(j), read with Rules 28 and 29 of the Prevention of Food Adulteration Rules, 1955. Its sale is prohibited
under Section 7(i) and is at penal offence under Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954. Under
Section 16(1)(a) the offence is punishable with imprisonment for a term which shall not be less than six months but which
may extend to six years and with fine which shall not be less than Rs 1000.
It was observed here that under Section 3, the accused can be released after due admonition only if the offence
is punishable with imprisonment for not more than two years under any other law. The Prevention of Food
Adulteration Act, 1954, is any other law but the offence under Section 16(1)(a) under which the appellant was
convicted and sentenced is punishable with imprisonment which may extend to six years. In the circumstances
no Court was empowered to release the appellant after due admonition.

THE PROBATION OF OFFENDERS ACT, 1958

 An Act to provide for the release of offenders on probation or after due admonition and for matters connected

therewith.

 This law was enacted to offer offenders a chance to demonstrate that they can behave better in public and continue

to live in the same community without doing anything to endanger it.

 Section 4 of the Act -According to Section 4, if a person is found guilty of an offence that is not punishable by death

or life in prison and the court that finds them guilty decides that, given the circumstances of the case, such as the

nature of the offence and the offender’s character, it is appropriate to release them on probation of good behaviour,

then, despite any other laws currently in effect, the court has the right to do so .
The court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond,

with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as

the court may direct, and in the meantime to keep the peace and be of good behaviour

 Section 7- Report of probation officer to be confidential.—

The report of a probation officer referred to in sub-section (2) of section 4 or sub-section (2) of section 6 shall be treated as

confidential:

Provided that the court may, if it so thinks fit, communicate the substance thereof to the offender and may give him an

opportunity of producing such evidence as may be relevant to the matter stated in the report.

 Section 9. Procedure in case of offender failing to observe conditions of bond.—(1) If the court which passes an order

under section 4 has reason to believe, on the report of a probation officer or otherwise, that the offender has failed to

observe any of the conditions of the bond or bonds entered into by him, it may issue a warrant for his arrest or may,

if it thinks fit, issue a summons to him and his sureties, if any, requiring him or them to attend before it at such time

as may be specified in the summons.

 Section 13. Probation officers.—(1) A probation officer under this Act shall be—

(a) a person appointed to be a probation officer by the State Government

(b) a person provided for this purpose by a society recognised in this behalf by the State Government; or

(c) In any exceptional case, any other person who, in the opinion of the court, is fit to act as a probation officer in the special

circumstances of the case.

(2) A court which passes an order under section 4 or the district magistrate of the district in which the offender for the time

being resides may, at any time, appoint any probation officer in the place of the person named in the supervision order.

(3) A probation officer, in the exercise of his duties under this Act, shall be subject to the control of the district magistrate of

the district in which the offender for the time being resides

 Section 14. Duties of probation officers.—A probation officer shall, subject to such conditions and restrictions, as

may be prescribed,—

(a) inquire, in accordance with any directions of a court, into the circumstances or home surroundings of any person accused

of an offence with a view to assist the court in determining the most suitable method of dealing with him and submit reports

to the court;
(b) supervise probationers and other persons placed under his supervision and, where necessary, endeavour to find them

suitable employment;

(c) advise and assist offenders in the payment of compensation or costs ordered by the Court;

(d) advise and assist, in such cases and in such manner as may be prescribed, persons who have been released under section

4; and

(e) perform such other duties as may be prescribed.

SCHEME IN KERALA

 Nervazhi scheme was launched by SJD in December 2017 based on the Probation of Offenders Act of 1958.

 Nervazhi’ has been rolled out to bring about a change in those who have committed non-heinous crimes through the

probation system, instead of imprisoning them. Besides preventing overcrowding in jails, it significantly helps avoid

the stigma attached to conviction, mingling of offenders with hardened criminals, preserves family and social life,

and aids offenders’ transformation.

DISTINCTION BETWEEN PROBATION AND PAROLE:

1. Offenders who are released into the community under supervision as opposed to being imprisoned are given

probation. However, parole is just a short-term release for inmates, and it comes with rules they must abide by.

2. The Probation of Offenders Act and the Code of Criminal Procedure govern probation in India. However, we are

unable to locate a consistent and detailed set of guidelines for parole. The state governments are permitted to set their
 own parole guidelines, which results in variation in parole criteria across the country even though it is recognised by

the Prisons Act and Prisoners Act.

3. The sentence imposed by the court on guilty parties is known as probation. Parole is merely a plan for the short-term

release of inmates.

4. While parole is given while incarcerated, probation is an alternate type of punishment given in place of jail. No,

parole is not a substitute for incarceration.

5. The court issues a sentence of probation. The nature of probation is judicial. In India, the District Magistrate or the

Deputy Secretary of the State's Home Ministry make the majority of the decisions about parole. The majority of

parole is quasi-judicial in nature.

6. Prior to being imprisoned, the convict is given probation, and after serving a minimal amount of time behind bars,

the prisoner is granted parole.

7. Offenders who have previously served time in jail or been found guilty are not eligible for probation. Prison-serving

convicts are eligible for parole.

8. An offender who has been released on probation gets resentenced to jail for a specific amount of time if he violates

any probationary requirements. However, breaking the terms of parole leads a felon back to jail, where their previous

sentence of incarceration resumes.

9. The initial phase of an offender's correctional process is probation. However, parole comes after a term of punishment

for the perpetrator

10. Since a person on probation is not receiving a prison sentence, there is less stigma associated with them.

However, a parolee would experience prejudice after he was let back into society.

PAROLE

MEANING OF PAROLE
Parole is a type of release that is only available to criminals who are serving their jail sentence. The person
who is released on parole is considered as Parolee.

The Prisons Act, 1894 and the Prisoners Act, 1900 define the parole requirements in India. However, because
State governments are free to enact their own parole rules, there isn't a fully unified system of parole laws in
India. The criteria for parole differ slightly from state to state.
Refers to a prisoner’s temporary or permanent release before the end of a sentence. Requires periodic reporting
to the authorities for a set period of time. It is a reformative process. The object is to assist them in reintegrating
into the society.

In India, parole and furlough are covered under The Prisons Act of 1894 and The Prisoners Act 1900. Since
prison is a State subject under 7th Schedule of the Constitution, each State Government makes its own Rules.

Parole is not a matter of right. Parole can be denied if the competent authority is satisfied that the releasing
the convict would not be in the interest of society.

OBJECTIVES

 The main purpose of Parole was that Prisoner can maintain continuity together with his family, friends,
and community.
 To save the prisoner from the harmful effects of continuous prison life.
 Parole enables a prisoner to develop a feeling of self-confidence there is a life beyond prison.
 Parole helps a prisoner to develop a sense of hope and active interest in his life.
 It aims to rehabilitate the prisoner
 Reduces overcrowding of jail population
 Reduces taxpayer expenses

As already stated, parole is a penal device which seeks to humanise prison justice. It enables the prisoner to
return to the outside world on certain conditions.

The main objectives of parole technique as stated in the Model Prison Manual are:

(1) to enable the inmate to maintain continuity with his family life and deal with family matters;

(2) to save the inmate from the evil effects of continuous prison life;

(3) to enable the inmate to retain self-confidence and active interest in life. The Jail Reforms Committee (1983)
recommended that besides the system of parole, there should also be the system of release of prisoners on
furlough under Mich well behaved prisoners of certain categories should, as a matter of right, have spell of
freedom occasionally after they undergo a specified period of prisonment, so that they may maintain contact
with their near relatives and eds and may not feel uprooted from society.

Thus the object of parole is :

 parole is a penal device which seeks to humanise prison justice.

 to enable the inmate to maintain continuity with his family life and deal with family matters;
 to save the inmate from the evil effects of continuous prison life
 to enable the inmate to retain self-confidence and active interest in life.
KINDS OF PAROLE IN INDIA
Custody Parole- It is granted in emergency situations and circumstances such as:

 Death of a family member

 Marriage of the family member
 Serious illness of a family member.
 Any other situations in which the presence of a family member is compulsory.

So, in Custody Parole, the Prisoner is surrounded by the Police for the specified time period. At the completion
of the period, the prisoner will be brought back to jail.

Regular Parole— In Regular Parole, the prisoner is released based on certain terms and conditions.

So, the Parolee (Prisoner) must follow the rules mentioned in the Parole. So, in regular Parole, there are no
police with the prisoner like in custody parole, therefore, it is considered discretionary parole.

DISADVANTAGES OF PAROLE SYSTEM

Allows criminal to start committing crimes again- In Saibanna v State of Karnataka, the appellant who was
arrested for killing his first wife killed his second wife and child during the parole period.

 Difficulty in supervision
 Difficult to find work during parole
 Executive arbitrariness in granting parole
 Misuse of parole

PRISONERS ACT (1900)

Section 31-A. Constitution of District Parole Board. – There shall be established for each district a District
Parole Board consisting of

 the District Magistrate,

 the Superintendent of Police,
 two members of the State Legislature to the nominated by the State Government and
 the Superintendent of the Jail, or, if there is a Central Jail in the District, the Superintendent of that
Jail.

Section 31-B. Release of prisoners on parole. – (1) The State Government, or any authority to which the State
Government may delegate is powers in this behalf, may, on recommendation of this District Parole Board,
direct that a prisoner may be released, either without conditions or upon such conditions as may be specified
in the direction, for any period not exceeding thirty days at a time, excluding the time required for journeys
and the days of departure from, and the arrival at, the prison:
Provided that no prisoner shall be released under this sub- section, unless –

a) he has served a period of not less than one year

b) his conduct in prison has been, in the opinion of the District Parole Board, uniformly good;

c) there is, in the opinion of the District Parole Board, reasonable probability that during the period of his
release he shall not commit any crime; and .

d) in the case of a second or subsequent release, not less than six months have elapsed from the date of the
expiry of this previous release:

Provided further that no prisoner shall be released under this sub-section more than three times.

THE KERALA PRISONS AND CORRECTIONAL SERVICES (MANAGEMENT) ACT, 2010

Section 2(xxxi) ― defines parole - means the system of releasing the prisoners temporarily for such period by
following such procedures and conditions, as may be, prescribed.

Section 73. Release on parole.—The State Government may, subject to such conditions as may be prescribed,
release on parole for such period as it may deem necessary, any convicted prisoner in case of any serious
illness or death of any member of the prisoner’s family or of any of his nearest relatives or for any other
sufficient cause.

Section 74. Prisoner to surrender himself on the expiration of the period of parole.—(1) On the expiry of the
period for which a prisoner was released on parole under section 73, he shall surrender himself to the officer
in-charge of the prison from which he was released.

Section 76. Cancellation of order and parole.—Whenever any prisoner fails without sufficient cause to observe
any of the conditions on which he was released on parole, the Government or the competent authority, as the
case may be, may cancel such order granting parole.

Section 78(2) parole granted to the prisoners shall in no case exceed one third of the sentence

THE SUCCESS OR FAILURE OF PAROLE GENERALLY DEPENDS ON THE FOLLOWING

FACTORS:
(1) It has generally been accepted that the offenders committed for crime against person are more suited for
parole than those committing crime relating to property. The latter, often resort to recidivism and do not
respond favourably to the conditions of release on parole.

(2) Family circumstances of the offender have much to do with the success or failure of parole. The noted
criminologist, Donald Taft rightly contends that prisoners with domestic liabilities and family responsibilities
are "good-risks" as compared to those who are bachelors or without family liabilities.
(3) Recent methodical researches on parole clearly demonstrate that recidivists often derogate from parole
conditions and have to be brought back to prison sooner or later. The first offenders, on the other hand, are
usually good parolees and readily adjust themselves to the conditions of normal society.

(4) Social status of the offender also has a direct bearing on the parole success. It is generally observed that
offenders who belong to higher socio-economic strata or those who have a better educational background,
respond favourably to the system of parole. The obvious reason for this is that such persons are generally
committed to prison for an act which they might have committed due to sudden impulse of emotional
disturbance for which they are usually repentant.

(5) As a matter of policy, parole should be administered only to those prisoners who display an inclination for
good behaviour and show respect for law and justice. The adaptability of prisoners can be assessed through a
method of careful diagnosis by trained and qualified parole staff.

THE SUCCESS OR FAILURE OF PAROLE GENERALLY DEPENDS ON THE FOLLOWING

FACTORS:

(1) It has generally been accepted that the offenders committed for crime against person are more suited for
parole than those committing crime relating to property. The latter, often resort to recidivism and do not
respond favourably to the conditions of release on parole.

(2) Family circumstances of the offender have much to do with the success or failure of parole. The noted
criminologist, Donald Taft rightly contends that prisoners with domestic liabilities and family responsibilities
are "good-risks" as compared to those who are bachelors or without family liabilities.

(3) Recent methodical researches on parole clearly demonstrate that recidivists often derogate from parole
conditions and have to be brought back to prison sooner or later. The first offenders, on the other hand, are
usually good parolees and readily adjust themselves to the conditions of normal society.

(4) Social status of the offender also has a direct bearing on the parole success. It is generally observed that
offenders who belong to higher socio-economic strata or those who have a better educational background,
respond favourably to the system of parole. The obvious reason for this is that such persons are generally
committed to prison for an act which they might have committed due to sudden impulse of emotional
disturbance for which they are usually repentant.

(5) At times, certain parolees prefer to waive off their clemency of being paroled out if their final discharge
from prison or similar institution is not far off or if they feel that their release on parole under the supervision
of parole staff is indirectly an expression of distrust fir them.
(6) As a matter of policy, parole should be administered only to thos prisoners who display an inclination for
good behaviour and show respect for law and justice. The adaptability of prisoners can be assessed through a
method of careful diagnosis by trained and qualified parole staff.

(7) Parole violators are denied the benefit of earning good-time after their return to prison to serve the
remaining part of sentence.

ESSENTIALS OF AN IDEAL PAROLE SYSTEM

It must be emphatically stated that reformation of the parolee through surveillance and assistance is the
foremost object of parole. But neither supervision nor assistance alone can make the system effective. The
system must therefore. inevitably include a combination of the two for its successful implementation.
Excessive supervision over parolees without proper guidance would virtually mean that the parole authorities
are performing the police functions of keeping a close watch on the prisoner under threat of punishment taking
it for granted that the later would definitely repeat the crime if not kept under surveillance. Conversely,
assistance to parolees without proper supervision will also yield poor results. It is erroneous to think that
parolees can reform themselves merely by affording them "easy freedom". It is a part of parole officer's duty
to ensure that the parolee makes the best use of the opportunities placed before him after his release from
prison. While handling parolees, priority should be on the protection of society against crimes rather than
undue leniency towards the parolees. The essential requisites of an ideal parole system may briefly be
summarised as follows:-

1. Emphasis must be on supervision as well as guidance and assistance to parolees so as to make the
system useful to the society in general and the parolees in particular
2. Before release on parole, the parolees must be thoroughly prepared for parole administration. This task
can be assigned to Classification Committees functioning under the parole system.
3. The criterion governing selection of prisoners for grant of release on parole should not be the particular
category to which the offender belongs nor the length of his sentence, but his suitability to respond
favourably to the rehabitative processes and the fact that his social re-adjustment is more likely to be
achieved by allowing him the benefit of parole than by treatment under detention in prison.
4. The parolees must be assured an honourable employment and favourable surroundings at the time of
their release on parole. This will inculcate hope, confidence and social responsibility in them. It would
also help them in overcoming their inferiority complex for being ex-convicts.
5. Since the parolees have to be rehabilitated within the society through various social agencies, it is
desirable that the parole authorities should seek active co-operation of the public in this task.
6. Parole Boards should be completely free from political pressures and only persons of proven ability
and integrity should be inducted in these Boards. They should be well qualified full-time officials.
 7. The staff associated with parole agency should also be whole-time workers. Experience alone should
not be the criterion for selecting field officials but well qualified and trained personnel should be
recruited for this job.

JUDICIAL TREND

The courts in India have generally favoured the view that the prisoners who have been incarcerated or kept in
prison without trial for a long time, should be released on parole to maintain unity of family. It may be useful
to refer to some of the decisions to support this contention.

The need to paroling out long-term prisoners periodically for reasonable spells, subject to sufficient safeguards
ensuring their proper behaviour outside and prompt return inside, was highlighted by the Supreme Court in
Hiralal Mallick v. State of Bihar. In this case the appellant was found guilty of the offence under Section 326
(causing grievous hurt) of the Indian Penal Code and sentenced to eight years' imprisonment. He was only 12
years of age at the time of commission of the offence. The High Court reduced the sentence to four years
keeping in view the tender age of the accused. The Supreme Court directed release of the appellant on parole
for reasonable spells so that his family ties are not snapped for long being insulated from the world and he
does not become beastial and dehumanised. The Apex Court, however, noted that granting of parole for
reasonable spells is subject 10 sufficient safeguards ensuring prisoner's proper behaviour outside the prison
and prompt return inside on completion of parole term. The Court in this case observed:

"One method of reducing tension is by providing for vital links between the prisoner and his family. A prisoner
insulated from the world becomes bestial and, if his family ties are snapped for long, he becomes dehumanised.
Therefore, we regard it as correctionally desirable that this appellant be granted parole and expect the
authorities to give consideration to paroling out prisoners periodically, particularly of the present type, for
reasonable spells. subject to sufficient safeguards ensuring their proper behaviour outside and prompt return
inside the prison."

The High Court of Punjab & Haryana in Hari Singh v. State of Haryana, held that denial of parole on flimsy
ground that the prisoner's release would endanger the public order was not justified. The Supreme Court, in
Dharamvir v. State of Uttar Pradesh,' was once again called upon to consider the desirability of release of
long-term prisoners on parole at regular intervals so that they are not totally cut-off from the society. In the
instant case, the appellant was found guilty of murder and convicted for imprisonment for life.There being no
scope for reduction of period of sentence, the Apex Court found parole desirable in such cases. It therefore,
issued directions to the State Government and the jail authorities that such prisoners be allowed to go on parole
two weeks once in a year throughout the period of imprisonment, provided they behaved well while on parole.

The Apex Court, in Suresh Chandra v. State of Gujarat, pointed out the importance of the penological
innovation in the shape of parole to check recidivism. It recommended liberal use of parole as a viable
alternative for reducing crowding in prisons.

JUVENILE JUSTICE

MOVEMENT FOR JUVENILE JUSTICE

The movement for special treatment of juvenile offenders started towards the end of eighteenth century. Prior
to this, juvenile offenders were dealt with exactly like those of adults. They were prosecuted in criminal
courts and were subjected to same penalties as adults. That apart, they served their sentence in the same prison
in which other hardened criminals were lodged. The obvious result of lodging juveniles and habitual offenders
in the same prison was that these institutions virtually turned into breeding centres of vices and criminality.
The greater evil of the system was that it exposed young offenders to contamination due to their incarceration
with other criminals.

The period of industrialisation did not bring any remarkable change in the attitude of reformists towards the
young offenders. However, the wave of liberalism and legislative reforms during the mid-eighteenth century
brought in its wake a radical change in the attitude of law reformists towards young offenders.

In modern era, the penal laws of most countries have adopted the principle that a child below a certain age' is
doli incapex, that is, incapable of committing a crime, and hence cannot be convicted; whereas a child between
the age of seven and twelve can only be convicted if he has attained sufficient maturity of understanding to
judge the nature and consequences of his conduct on that occasion. This age range, however, varies from
country to country. Thus, the age of responsibility in France was previously sixteen years which is now
extended to eighteen years while under the Roman law, it is the age of attainment of puberty.

JUVENILE DELINQUENCY-WHAT IT MEANS?

Etimologically, the term 'delinquency' has been derived from the Latin word delinquer which means 'to omit'.
The Romans used the term to refer to the failure of a person to perform the assigned task or duty. It was
William Coxson who in 1484, used the term delinquent to describe a person found guilty of customary offence.
In simpler words it may be said that delinquency is a form of behaviour or rather misbehaviour or deviation
from the generally accepted norms of conduct in the society.
It has been accepted the world over that children are national assets and they constitute the most vulnerable
group in any population. They can be exploited, ill-treated and directed into undesirable channels by anti-
social elements in the community.
Highlighting this issue and need to care and protection of children, the Supreme Court in its decision in the
case of Legal Aid Committee v. Union of India, observed:
"Children require the protective umbrella of society for better growth and development as they are not in a
position to claim their entitlements....... State is the foster father for all those children, who are deprived of
parental care because it is on their physical and mental well-being that the future of nation depends. Ideally
speaking, every home should be a 'Child Care Home', but the ground realities are different. Materialism has
adversely affected familial relationship........ homes are breaking and indifference has settled in community
behaviour."

It is in this background that the Juvenile Justice Act, 1986 which was enacted incorporating the fundamental
principles of juvenile jurisprudence had to be modified and redrafted and which eventually led to the
enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000 which came into force w.e.f
April 01, 2001.

The Act was amended twice in 2006 and 2011 to address gaps in its implementation and make the law more
child-friendly. However, taking note of increasing cases of crimes committed by juveniles in the age-group of
16-18 years in recent years, it was proposed to repeal the Juvenile Justice (Care and Protection of Children)
Act, 2000 and re-enact a comprehensive legislation. It is in this background that the Juvenile Justice (Care and
Protection of children) Act, 2015 (2 of 2016) which received Presidential assent on 31st December, 2016 has
been enacted. It is a beneficial legislation conferring benefits on juveniles.

In the Juvenile Justice (Care and Protection of Children) Act, 2000, the term 'delinquent juvenile' used in the
earlier Juvenile Justice Act, 1986 was substituted by the words 'juvenile in conflict with law.

Similarly, the children who are incorrigible, uncontrollable, destitute or orphans etc. and need active support
and care of the community, and who were termed as 'neglected children' under the repealed Juvenile Justice
Act of 1986, Justice (Care and Protection of Children) Act, 2000 which came into force on were called as
'children in need of care and protection',' under the Juvenile December 30, 2000. Under the Act, juvenile or
child in conflict with law means a person who has not completed eighteenth year of age, be he a boy or a girl.
HOW JUVENILE JUSTICE SYSTEM IS DIFFERENT FROM
CRIMINAL JUSTICE SYSTEM

The Supreme Court, in Dr. Subramanian Swamy and Others v. Raju, Through member of J.J. Board & another,
has clarified that juvenile justice system and criminal justice system are different from each other. They have
different aims. While criminal trial is adversarial, the juvenile trial is child-friendly. The difference between
the two systems are as follows:-

(1) In case of juvenile offenders, FIR and charge-sheet are filed only in serious cases, where the punishment
for the offence exceeds seven years.
(2) A juvenile in conflict with law is not 'arrested' but 'apprehended', only when allegation is for serious crime.
(3) One apprehended the police must immediately place such juvenile under the care of welfare officer who
produces him/her before the Juvenile Justice Board. Thus, police does not retain pre-trial custody over the
juvenile.
(4) Under no circumstances is the juvenile to be detained in jail or police custody.
(5) Grant of bail to juvenile offender in conflict with law is a rule.
(6) J.J. Board conducts child-friendly inquiry and not an adversarial trial.
(7) The criminal trial aims at finding the guilt or innocence with the object to punish the offender but juvenile
trial aims at reformation and rehabilitation of the errant juvenile who is in conflict with law.

HISTORY OF JUVENILE JUSTICE LAW IN INDIA

The Juvenile Justice Act, 1986 remained operative for nearly thirteen years when it was repealed and replaced
by the Juvenile (Care and Protection of Children) Act, 2000 which became the central law operative
throughout the country with effect from December 30, 2000. This Act has also been repealed by the Juvenile
Justice (Care and Protection of Children) Act, 2015 (2 of 2016).
Prior to the enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000 which came into
force w.e.f. December 30, 2000, the Juvenile Justice Act, 1986 was the governing law on the subject. Before
this Act introduced w.e.f. October 2, 1987, the Children Act, 1960 was operative throughout the country. The
States were, however, authorised to enact their own laws' for the care and protection of the delinquent children
and juveniles.

It must be stated that the Children Act, 1960 was preceded by the United Nations Declaration of the Rights of
the Child in 1959. Thereafter, 113 nations, by consensus, promulgated the Vienna Declaration & Programme
of Action where the rights of child in general and girl child in particular, received worldwide recognition. It
was resolved that the member States should integrate the Convention on Rights of the Child into their national
action plan. This provided a blue-print for juvenile justice legislation for developed and developing nations.
India, being a signatory to the Convention, drew up a comprehensive uniform legislation to replace the
Children Act, 1960 and the State enactments framed thereunder. Consequently, the Juvenile Justice Act, 1986
was enacted which came into force w.e.f. October 2, 1987.

THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015

The Beijing Rules' and Riyadh Guidelines, had declared the fundamental rules, which should be applied to
deal with juvenile delinquency and India, being a signatory to all the conventions on Rights of Child had a
legal and moral obligation to enact laws confirming to the international norms. Therefore, it enacted Juvenile
Justice Act, 1986 which was later modified and replaced by the Juvenile Justice (Care and Protection of
Children) Act, 2000. The Parliament enacted Juvenile Justice (Care & Protection of Children) Act, 2015 (2 of
2016), which received the assent of the President of India on 31st December, 2015. Section 3 of the Act
enumerates the principles that are to be followed in the administration of the Act. Among them are:-

(i) Principle of presumption of innocence;

(ii) Principles of dignity and worth;
(iii) Principle of participation;
(iv) Principle of best interest;
(v) Principle of family responsibility:
(vi) Principle of safety;
(vii) Positive measures;
(viii) Principles of non-stigmatising semantics;
(ix) Principle of non-waiver of rights;
(x) Principle of equality and non-discrimination;
(xi) Principle of right to privacy and confidentiality:
(xii) Principle of institutionalisation as a measure of last resort;
(xiii) Principle of repatriation and restoration;
(xiv) Principle of fresh de novo start
(xv) Principle of diversion
(xvi) Principle of natural justice

MAIN FEATURES OF JUVENILE JUSTICE (CARE & PROTECTION OF CHILDREN)

AMENDMENT ACT, 2015
Prior to the enactment of the Juvenile Justice Act, 2015, several offences against children which were not
adequately covered under any other law, have been included in this Act. These include sale and procurement
of children for any purpose (including illegal adoption) corporeal punishment in child care institutions, use of
children by militant groups, offences against disabled children and kidnapping.
The new Juvenile Justice Act, 2015 mandates that anyone subjecting a child to corporal punishment at a
school, orphanage, hostel or any child-care institution can be jailed for three months, and may also face
dismissal from service and fine. The Act allowed children above 16 years of age to be treated as adults if they
are accused of heinous crimes like gang-rape, murder or acid attack. The Amendment Act came into force
with effect from January 16, 2016. The law enforcement agencies hope that the JJ Act of 2015 amended law
will effect a change in the behaviour of the legal juveniles, or those under the age of 18 who cannot be tried
in the regular courts. Now the juvenile charged of a heinous crime will be tried by a Sessions Court which
hears cases of serious crimes against adult accused. However, he could still get some relief from the court as
the new JJ Act has a provision for the court to take a re-look and decide whether the teenager is to be tried as
an adult or not. If it decides against it, it will send the case back to the Juvenile Justice Board (JJB).

The Supreme Court in Bachpan Bachao Andolan v. Union of India, while enumerating the aforesaid principles
emphasised the need for intervention strategies for curbing and eliminating the increasing use and abuse of
drugs, alcohol and other narcotic abusive substances in children, mostly adolescents and desired that a
National Policy be framed on this very crucial aspect juvenile problem.

Thus, it would be seen that fundamental principles for administration of juvenile justice, as elaborated in the
Juvenile Justice Act, 2015 and the Rules made thereunder include right to be heard, positive rehabilitative
measures and avoidance of maltreatment to juveniles who are in conflict with law. The law seeks to ensure
best interest of the juveniles and protect their right to dignity by providing care and support.

The Juvenile Justice (Care and Protection of Children) Act, 2015 recognises two categories of Juveniles,
namely,
(i) Juveniles in conflict with law, and
(ii) Juveniles in need of care and protection.

A child, who is alleged to have committed an offence, and has not completed 18 years of age on the date of
commission of an offence is defined as Juvenile in conflict with law'.
Section 2(d) of the Act describes the juveniles who need care and protection. The Juvenile Justice Act, 2015
requires that the State should provide infrastructure facilities and set up child welfare committees for these
neglected children and they should be placed in 'Children Home' and Shelter Homes with prescribed facilities.
The object is to ensure social reintegration of every child as a normal citizen. The Act provides for setting up
of after-care organisations to prepare juveniles who have attained adulthood, to rise on their feet and become
orderly citizens.
As stated earlier, one of the special features of the J.J. Act, 2015 is that a juvenile who has committed an
offence is not addressed as 'juvenile delinquent', instead he is called a 'juvenile in conflict with law'. Perhaps
the object is to avoid stigma which the word 'delinquent' carries with it, in case of juvenile offenders.

The trial of a juvenile in conflict with law' is held by the Juvenile Justice Board which has to consider the
following issues in respect of the age of the juvenile before proceeding with the trial:
(i) whether the person before it i.e. Juvenile Justice Board, is within the prescribed age of 18 years or not;
and
(ii) for the purpose of determining the age, the relevant date is the date on which the offence is committed,
and not the date on which the juvenile is brought before the Board for inquiry and proceedings.

The JJ. Act mandates that no juvenile in conflict with law shall be subjected to any harm, abuse, neglect,
maltreatment, corporal punishment or solitary confinement. Further the use of accusatory words such as arrest,
remand, accused. trial, prosecution, conviction etc. in proceedings against juveniles is strictly prohibited. The
Act requires that the juvenile's right to privacy and confidentiality should be protected by all means. Every
child has a right to be united with his family.
A child, who is alleged to have committed an offence, and has not completed 18 years of age on the date of
commission of the offence shall be treated as a juvenile in conflict with law and dealt with under the provisions
of the Juvenile Justice Act, 2015 and the rules framed thereunder.
Police can arrest a juvenile offender only where he is alleged to have committed a serious offence punishable
with imprisonment of more than seven years. Soon after the juvenile is apprehended, he should be placed
under the charge of Juvenile Welfare Officer posted in the Police Station, who shall produce him before the
Juvenile Justice Board within 24 hours as per Section 10(1) of the Act. The Act prohibits lodging of juvenile
offenders in police lock up or jail' nor can he be hand-cuffed. A policeman in uniform is not allowed to handle
the juvenile in conflict with law

THE BASIS FOR DECIDING JUVENILITY

The Supreme Court in Prabhunath Prasad v. State of Bihar, reiterated that in case of trial of a juvenile accused,
the trial court should suo motu hold an inquiry as to the exact age of the accused so as to eliminate any kind
of dispute or doubt as to the eligibility of the accused for being tried under the Juvenile Justice Act.

The Supreme Court in Ramdeo alias Rajnath Chouhan v. State of Assam, observed that for the determination
of the age of juvenile for the purpose of his trial under the Juvenile Justice Act, his date of birth as recorded
in the school register may be accepted provided it is entered by a competent authority. In the instant case, the
accused was a juvenile according to his date of birth as recorded in the school register but there was no
evidence to prove that it was recorded by a public servant or a competent authority in discharge of his official
duty and therefore, it could not be accepted as an authentic evidence for the determination of the age of the
accused.

JUVENILE JUSTICE BOARD

Section 4 of JJ Act, 2015 provides for the constitution of Juvenile Justice Board for the inquiry and hearing in
the case of a juvenile in conflict with law. The section also lays down the qualifications for appointment,
removal etc. of the members of the Board. The procedure in relation to the working of the Juvenile Justice
Board is contained in Section 7 of the JJ Act, 2015 . In order to keep the juveniles alleged to be in conflict
with law away from the accusatory procedure and provide them a child-friendly environment, their cases are
adjudicated upon by the Juvenile Justice Board and not the conventional law court.

The Juvenile Justice Board shall consist of a Principal Magistrate and two social workers, one of whom must
be a woman. A Judicial Magistrate, First Class or Metropolitan Magistrate maybe appointed as the Principal
Magistrate who shall be the Head of the Board. The two social workers shall be appointed by the Government
through a Selection Committee headed by a retired High Court Judge. Petty cases may be disposed of by the
JJ Board by summary proceedings while in heinous offences, due process of inquiry may be followed. The
Board shall follow the procedure of trial as in summons cases. Even a single member of the Board can
undertake proceedings on behalf of the Board, but such proceedings need to be confirmed by the Board in its
next meeting. The final decision shall be taken by a majority in which presence of the Principal Magistrate is
mandatory. The Principal Magistrate should have special knowledge or training in child psychology or child
welfare. The Act casts a duty upon the State to arrange short term training for the members and Principal
Magistrate of the Juvenile Justice Board.
The Act requires that under no circumstances can the Juvenile Justice Board to operate from regular court
premises, but in reality almost all the Juvenile Justice Boards are located and functioning from the regular
court premises, contrary to law.There should be no raised platform or witness box inside the meeting room of
the Board.

SPECIAL PROCEDURE OF THE JUVENILE JUSTICE BOARD

The procedure followed in the proceeding against juvenile offender under the Juvenile Justice Act differs from
that of an ordinary criminal trial, and therefore, it can be rightly termed as 'special procedure' in view of the
following considerations :-
(i) The hearing is informal and strictly confidential.
(ii) The juvenile offender while under detention, is kept in separate Observation Home.
(iii) The young offender may be reprimanded on security or bond for good behaviour.
(iv) The trial of juvenile in conflict with law is usually conducted by lady Magistrate specially deputed
for the purpose.
 (v) The procedure followed in the trial of juvenile in conflict with law being informal, he has no right
to engage the services of a lawyer in the case.
(vi) No appeal lies against the order of acquittal made by the Juvenile Justice Board in respect of a
juvenile alleged to have committed an offence. An appeal shall, however, lie against the order of
the Board holding the juvenile guilty of an offence to the Sessions Court within a period of 30 days
whose decision shall be final and there shall be no second appeal.

RELEASE OF JUVENILE ON BAIL

Section 12 of the JJ Act, 2015 provides that the juveniles should be released on bail as a general rule and
should be sent to jail only in special cases. A juvenile in conflict with law may be released on bail even by the
officer-in-charge of the Police Station. However, grant of bail to a juvenile in conflict with law may be denied
on the following grounds-

(i) Where there is reasonable apprehension that such release would bring the juvenile in association with
known criminals;

(ii) there is possibility of his being exposed to moral, physical or psychological exploitation;

(iii) where juvenile's release on bail would defeat the ends of justice

In Gopinath Ghosh v. State of West Bengal,' the Supreme Court observed that when a juvenile is brought
before the Juvenile Court (now Juvenile Justice Board under the Juvenile Justice Act of 2015) and in the
opinion of the Court, after release on bail he is not likely to fall in company of hardened or known criminals
or exposed to physical, mental or psychological danger or his release is not going to result in failure of justice,
the bail should be granted to him and he should be released.

Where the Board rejects the bail application of the juvenile keeping in view the gravity of the offence and his
antecedents, he should not be remanded to jail custody but sent to Observation Home or any other safe place
or institution. Where after holding a preliminary inquiry or hearing in the case of a juvenile in conflict with
law, the Juvenile Justice Board finds that the offence is not of a serious nature, then it may dispose off the
case following the procedure for trial in summons case under the Code of Criminal Procedure, 1973. The
inquiry in such cases shall be completed within specified period.

In Jaipal Singh Tej Singh v. Ram Avtar Devilal, the High Court of Madhya Pradesh held that for allowing the
benefit of release after admonition to the accused under Section 15(1)(a) (now Sec. 18 of JJ Act, 2015), the
Court (now Juvenile Justice Board) shall take into consideration the
(1) circumstances of the case;
(2) the nature of the offence; and
(3) the character and antecedents of the accused or juvenile as the case may be.

While discharging the juvenile after admonition, the Juvenile Justice Board should warn him that he shall
have to face the sentence in case he repeats the offence or commits any other offence.

DISPOSITIONAL ORDER

The Juvenile Justice Board may pass any of the following dispositional order after due enquiry in the case of
juvenile in conflict with law :-
1. Admonition;
2. Group counselling.
3. Community Services;
4. Fine if age of juvenile is above fourteen years;
5. Release on probation;
6. Detention in Special Home (Maximum up to three years);
7. Attend vocational school or therapeutic centre or de-addiction centre.

The dispositional order (in fact it is a conviction order but in order to avoid the use of the word 'conviction'
which is accusatory, the term dispositional order is used) shall direct the State or District Child Protection
Units to arrange adequate counselling or community service as the case may be, for the juvenile or get the
bond executed from the parent/guardian/fit person, where the juvenile is released on probation for good
behaviour or in their custody.

The Juvenile Justice Act, 2015 envisaged three types of Juvenile Homes where the juvenile in conflict with
law may be housed (lodged) during the police enquiry and adjudication proceedings against him or after his
misconduct (offence) is proved :-

1. Observation Home. To house juveniles during the pendency of police enquiry. (Section 47).
2. Special Home. To house juveniles who are found guilty of offence and who are to be detained under any of
the abovementioned dispositional order.(Section 48).
3. Place of Safety. To house juveniles who are more than 16 years of age serving detention order. (Section 49)

RELEASE OF JUVENILE ON PROBATION

The Juvenile Justice Board may order the release of juvenile in conflict with law on probation of good conduct
and place him under the care of his parents, guardian or any other proper person. Having regard to the
circumstances of the case, the Board may also direct the juvenile to enter into a bond, with or without sureties.
But the period of such order of release on probation shall not exceed three years. Besides, the Board may order
the placement of juvenile in a Special Home." but the period of such placement-

(i) shall not be less than two years where the age of juvenile is more than seventeen years but less than eighteen
years;

(ii) in case of other juveniles, until they cross the age-limit of 18 years, both for boys as well as girls. The
release of a person on probation being a treatment reaction to crime offers an opportunity to the juvenile to
reform and rehabilitate himself. It is a violable alternative for juvenile being placed in jail where there is
possibility of his contamination in association with hardened offenders.' But at the same time, the Board should
make sure that release of juvenile on probation is not misused by him for ulterior purposes.

The Juvenile Justice Board is also empowered to order the placement of the juvenile found guilty of an offence
to be placed under the supervision of the Probation Officer for a period not exceeding three years and the
Probation Officer shall submit the periodical report about the juvenile and his progress in reformation.
However, where on the basis of the report of the Probation Officer, the Board finds that the juvenile is not
keeping good behaviour or it is difficult to keep him under control, it may order the placement of such
probationer juvenile in Special Home.'

ORDERS WHICH THE JUVENILE JUSTICE BOARD CANNOT MAKE :

Section 21 of the JJ Act, 2015 prohibits the Juvenile Justice Board from making certain orders against the
juvenile who is found guilty of an offence. The following orders cannot be made by the Board-

(i) an order awarding death sentence; or

(ii) an order awarding the sentence of imprisonment for life; or
(iii) an order for imprisonment in default of payment of fine; or
(iv) an order for imprisonment in default of furnishing security.

The purpose of these provisions is to prevent the juvenile from contamination d stigmatisation. and s

The Act does not permit joint trial of a juvenile with a person who is not a juvenile. The reason being that if
the juvenile has to go through the general criminal procedure of arrest, prosecution, defence, burden of proof,
conviction, imprisonment etc. as in case of adult offenders, the very purpose of Juvenile Justice Act will be
defeated. The Juvenile Justice Board can make an order against the juvenile on his being found guilty of
having committed an offence, only under the Juvenile Justice(Care and Protection of Children) Act, 2015 and
under no other law.
CHILDREN IN NEED OF CARE & PROTECTION
The provisions relating to child in need of care and protection are contained in Chapter VI of the JJ Act, 2015
which consists of eleven sections (ie., Sections 31 to 38). A child in need of care and protection as defined in
Section 2(14) of the Act means a child who is found without any home or settled place of abode and without
means of subsistence or who is neglected by his parent or guardian or does not have parent and no one is
willing to take care of him or who is likely to be grossly abused, tortured or exploited or who is found
vulnerable and is likely to be induced into drug abuse or trafficking or who is a victim of any armed conflict,
civil commotion or natural calamity.

The Act empowers the State Government to constitute Child Welfare Committees for care and protection of
children who are in need. The Child Welfare Committee shall consist of the Chairperson and four other
members of whom least one shall be a woman and another an expert on matters concerning children. The
functions and procedure etc. in relation to Committee are contained in Sections 27 to 30 of the JJ Act, 2015.

Section 30 provides that when a report under Section 29 of the Act about a child is received by the Child
Welfare Committee, the Committee or a police officer of Special Juvenile Police Unit or the designated police
officer shall hold an inquiry in the prescribed manner and the Committee may pass an order to send the child
to the Children's Home for speedy inquiry by a social worker or a Child Welfare Officer. Where on the basis
of inquiry it is found that the child has no family or any ostensible support, the Committee may allow the child
to remain in Children's Home or Shelter Home till suitable arrangement for the rehabilitation is made for him
or till he attains the age of 18 years.

The Act provides for the establishment of Children's Home for the reception of the child in need of care and
protection.' The Supreme Court has directed that children in Children's Home should not be subjected to begar
i.e., work without wages and they should be paid adequate remuneration for the work taken from them. These
Homes may be inspected periodically by the Inspection Committees appointed by the State Government.

In addition to the Observation Homes (for under-trial juveniles) and Children's Home (for juvenile found
guilty of an offence), the Act also provides for establishment of Shelter Homes under Section 43 for destitute
and shelterless children. The main object of providing Shelter Homes is to ensure protection and restoration
of destitute and neglected children.'

The ultimate aim and objective of establishment of Children's Home and Shelter Homes is protection and
restoration of children who are deprived of the family atmosphere and are leading a shelterless life. The
restoration of child as envisaged by Section 40 of JJ Act, 2015 implies handing over the child to care of his
parent or parent by adoption or foster parent for the purposes of rehabilitation and social re-orientation. For
the purposes of this Section, "restoration of and protection of a child" means restoration to (a) parents; (b)
adopted parents; (c) foster parents; (d) guardian; (e) fit person; or (f) fit institution.
It may be stated that the Chief Justices Conference in 2016 emphasised the need for ensuring institutional
support for children in need of care and protection and juveniles in conflict of law and resolved that:

(a) Cases pending for a period of more than one year should be disposed of on priority basis;

(b) Juvenile Justice Committees of the High Courts shall monitor the pendency and disposal of adoption cases
and applications for declaring children free from adoption on priority basis;
(c) Steps should be taken to ensure that every district is equipped with a Child Protection Unit, Special Juvenile
Police Unit, Observation Homes and Children Homes;
(d) Pending cases of orphaned, abandoned and surrendered children should be monitored by the Juvenile
Justice Committees of High Courts;

(e) Training and refresher courses should be imparted to judicial officers;

(f) vacancies in Juvenile Justice Institutions should be filled on a mission mode basis within three months;
(g) State Legal Services Authorities should actively discharge their role to ensure effective implementation of
the provisions of the Child Rights Act, 2005 and Juvenile Justice Act, 2015.

SOCIAL REINTEGRATION OF JUVENILES IN CONFLICT WITH LAW AND NEGLECTED

CHILDREN

Contained in Chapter VII of the Act which comprises Sections 39 to 55. Four alternative measures for the
rehabilitation and re-orientation of such juveniles and children are suggested in the Act which a as follows:-

(1) Adoption of orphaned, abandoned, neglected or abused children through institutional or non-institutional
means;
(2) Foster care is used for temporary placement of those infants who an
ultimately to be sent to some institution or individual for adoption;
(3) Sponsorship programme may provide supplementary support to families, Children Home, Special Homes
etc. to meet the medical, nutritional, educational and other needs of children.
(4) After-care Programme provides necessary supervision and guidance to juvenile and children after their
release from Children's Home or Special Home so that they may be rehabilitated and lead an honest and
industrious life in future.'

The Court may allow a child to be given in adoption :-

(a) to a person irrespective of marital status; or
(b) to parents to adopt a child of same sex irrespective of the number of living biological sons or daughters;
or
(c) to childless couples.

TREATMENT OF JUVENILE IN CONFLICT WITH LAW AND CHILDREN IN NEED OF CARE

& PROTECTION

It would be worthwhile to review the functions of various institutions which are presently engaged in handling
juvenile offenders. Reformation of offenders is the central theme of domiciliary treatment in these correctional
institutions. The institutions such as Observation Homes, Children's Homes, Special Homes, Shelter Homes,
Reformatory Schools and Borstals are meant to eliminate prisonisation of children and adolescents under a
particular age group.

OBSERVATION HOMES

The juveniles who need only a short-term custody during inquiry or trial are kept in an Observation Home.'
This institution is also used for the custody of under-trial children and juveniles in conflict with law about
whom inquiry is pending or who are awaiting trial or removal to an appropriate Home or Borstal.

There are Children's Homes for the treatment of neglected children for whom a short-term regulatory
protective care is necessary but a long term residential training is not necessary. This reform has, however,
not resolved the contradictory approaches of welfare and punishment which still persist. The focus in this
institution is on strict discipline rather than constructive training. The system has, however, been subjected to
severe criticism in Britain due to enormous increase in juvenile crimes in recent times.

SPECIAL HOMES OR CORRECTION HOMES

The Juvenile Justice Act, 2000 also provides for setting up Correction Home for custody of delinquent
juveniles. Basic amenities such as accommodation medical care, education and vocational training are
available to delinquent juvenile in these Homes. However, in actual practice, the Correction Homes to which
juvenile offenders are sent are barely cut out to effect behavioural reforms. Thes Homes are actually crime
nurseries for the juveniles in conflict with the lav because of the mismanagement and lack of clear vision as
also inadequate infrastructure. There are series of incidents when the minor inmates not only flet the Homes
but also vandalised them and set them ablaze before leaving. More thar a dozen of break-outs from correctional
homes have been reported during 2013-14.

REHABILITATION AND AFTER CARE

The main object of after-care is to extend help, guidance, counseling, support, the removal of any social stigma and protection

to all released prisoners whenever it necessary. In the absence of proper after care and a strict follow-up the best of penological

practices will be meaningless.

The hardest part of punishment that ex-prisoners, particularly young ex-prisoners, will have to face is when they come out of

the correctional institution. The new thinking is based on the essential premise that since crime is social fact and human act,

the process of dealing with a criminal does not come to an end after the offence has been legally defined and penalty imposed

on the offender in accordance with law. It is also necessary to understand the crime as a social and individual phenomenon

and the need to prevent its commission or repetition by adopting an attitude conducive to the re-socialization and reformation

of the criminal.

The term ‘After-Care’ refers to the programme and services organized for the rehabilitation of inmates from correctional

institutions. In its wider sense, after-care implies all efforts to enable the prisoner to overcome all the various social, economic

and psychological problems after his release. The main aim of after-care services, therefore, is to reconstruct and restore

institutionalized person to social positions of self-respect and also to enable them in settling down as law- abiding citizens in

the community.

OBJECTS OF AFTER-CARE

The Model Prison Manual (2016) has outlined the objects of after-care service as:

 Extending help, guidance, counseling, support and protection to all released prisoners, whenever necessary.

 Helping a released person to overcome his/her mental, social and economic difficulties.

 Helping in the removal of any social stigma that may have been attached to the inmate or his/her family because of

his incarceration.

 Impressing upon the individual the need to adjust his/her habits, attitudes, approaches and values to a rational

appreciation of social responsibilities and obligations and the requirements of community living.
  Helping the individual in making satisfactory readjustment with his/her family, neighbourhood, work group, and the

community.

HISTORY

 In India, the after-care work was done for a very long time by philanthropic organizations which, in spite of some

good work done by them, had all the limitations which such private organizations tend to have in this country.

 The Indian Jail Conference of 1877 for the first time discussed the question of helping ex-convicts but did not take

any positive steps to implement it.

 However, a Discharged Prisoners Aid Society was organized as a non-official agency in UP in 1894.

 Similar societies were organized in Bengal in 1907 and in Bombay in 1914, but these societies could not continue to

function for want of government support and public sympathy.

 Various Jail Committees in their reports emphasized the need for having effective after-care programmes but hardly

anything was achieved. The All India Jail Manual Committee, 1957, observed:

“After-care is the released person’s convalescence. It is the process which carries him from artificial

and restricted environment of institutional custody to satisfactory citizenship, re-settlement and ultimate rehabilitation in the

free community. Institutional training, treatment and post-release assistance is a continuous process. After-care service,

therefore, should form an integral part of correctional work.”

As a consequence of the Gorey Committee’s report on the subject, a comprehensive aftercare programme was
envisaged in the second and third Five- year Plans at the instance of the Central Government. A few after-care
homes and shelters were set up in some states but because of lack of sustained interest and paucity of funds,
most of them closed or become defunct. As could be expected, the Jail Committee, 1980-83 has pleaded for
the revival and re-strengthening of these programmes and several recommendations have been made for the
development and functioning of after-care programmes.

CONSTITUTIONAL PROVISIONS AND AFTER-CARE

 Article 39 (f) of the Constitution of India specifically states that the state shall, in particular, direct its policy towards

securing that ‘the children are given opportunities and facilities to develop in a healthy manner and dignity and that

childhood and youth are protected against exploitation and against moral and material abandonment.’
  The article specifically requires the state to ensure of its people adequate means of constitutional-maker envisaged

development in social, economic and political fields, they did not desire that it should be a society where a citizen

will not have the dignity of individual.

Model Prison Manual, 2016

The Model Prison Manual, 2016 provides guidelines relating to the process and planning and functioning of after-care and

the role of Probation/Welfare/Correctional Officer:

PLANNING OF AFTER-CARE

 After-care should be in the interest of the individual, and based on his needs.

 While planning post-release assistance, factors like the inmate’s personality, his weaknesses and strengths, limitations

and capabilities, and his rehabilitation needs should be taken into consideration.

FUNCTIONING OF AFTER-CARE AND THE ROLE OF PROBATION/

WELFARE/CORRECTIONAL OFFICER:

An officer of appropriate rank is to be appointed as Probation/ Welfare/ Correctional officer in each prison.
The Probation/ Welfare/ Correctional officer should contact the inmate during his/her admission-quarantine
period. Such an early contact will be helpful in planning over-all help for the inmate and his family. The
Probation/ Welfare/ Correctional officer should meet the inmate at least once a month throughout his stay in
the institution.

The Probation/ Welfare/ Correctional officer should extend all possible assistance in maintaining the inmate’s
continued relationship with his family, employer and community. The welfare of the family members and
departments of offender, as well as of their victims, should be looked after.
The Probation/ Welfare/ Correctional officer should be associated with the prisoner’s welfare services at the
headquarter level.

SCOPE OF AFTER-CARE ASSISTANCE

The scope of after-care assistance will be determined by the District Committee and may include the following matters:

 Subsistence money to cover initial expenditure after release, till such time as the released person reaches his/her

family or obtains employment.

 Provision of food.
  Stay in a District Shelter/After-care Hostel/ State Home, wherever available.

 Assistance in securing housing in urban areas.

 Assistance in securing apprenticeship in a workshop/technical institute/Industry.

 Assistance in starting a cottage industry, any small business, a small trade or a stall.

 Assistance in getting employment.

 Assistance in getting land, agricultural equipment, draught or milk cattle and seeds for those opting to take up

agriculture.

 Assistance in starting a small dairy, poultry, duck, or sheep farm/piggery/ vegetable garden/ Seri-culture/ bee-

keeping.

 Supply of artisan’s tools or trade equipment

AFTER CARE AND THE RULE OF N.G.OS/ INDUSTRY ASSOCIATIONS:

The participation of approved N.G.Os in the rehabilitation programmes should be extensively encouraged.
Voluntary organization, which wishes to help the government in rehabilitation projects, should be given
necessary financial and other help. Their services should be given due appreciation by the Inspector General
of Prisons.
The public should be educated about the need for rehabilitation of ex-prisoners through print and audio-visual
media.
Continuous liaison should be maintained with the agencies/ individuals which are willing to give employment
to the released prisoners.

AFTER-CARE AND FAMILY ADJUSTMENTS:

The following adjustments would be required:

 Explaining to the police the background and problems of the individual and getting help and co-
operation from the police in the process of re-settlement.
 Communicating to the Panchayat/ Community Development Authorities about the background,
problems and needs of the released person. Getting the co-operation and help of the panchayat,
Community Development Officer, National Extension Service Worker and Gram Sevak, in the re-
settlement of a prisoner.
 Reference to a Social Service Organization in the neighbouring area where the prisoner is likely to
settle after release.
 Assistance in continuation of education and vocational training.
  Creating interest in education and study. Motivating them to acquisition and improvement of skills,
healthy recreation, and constructive use of leisure.
 Encouragement in building good habits.
 Help in planning and balancing his budget.
 Encouraging thrift and savings. Making them leave costly habits.
 Medical treatment on long-term basis for tuberculosis, venereal diseases, leprosy and cancer, in an
outside hospital

UNDER THE JUVENILE JUSTICE ACT, 2015

Rehabilitation and social reintegration of children shall be carried out alternatively by:

1. Adoption

2. foster care;

3. sponsorship; and

4. sending the child to an after-care organization

THE LAWS GOVERNING REHABILITATION FOR JUVENILES ARE:

 Juvenile Justice (Care and Protection of Children) Act, 2015

 Integrated Child Protection Scheme (ICPS), 2014

 Juvenile Justice (Care and Protection of Children) Model Rules, 2016

AFTER-CARE ORGANIZATION

Section 2(5) of JJ Act, 2015 “aftercare” means making

 provision of support, financial or otherwise, to persons,

 who have completed the age of eighteen years but have not completed the age of twenty-one years,

 and have left any institutional care to join the mainstream of the society.

 Section 46. Any child leaving a child care institution on completion of eighteen years of age may be provided with

financial support in order to facilitate child’s re-integration into the mainstream of the society in the manner as may

be prescribed.
In essence, the focus of above prescriptions is on:

 Independent living

 Making youth capable to face critical situations of life

 Making them skilled or capable for employment

 Guidance for successful rehabilitation and social reintegration

 Rules 2016, formulated for administration of provisions of the JJ Act 2015, are in consonance with the provisions of

the ICPS and provide further clarity to management of aftercare programme in the country.

The key highlights of Rule 25 which deals with aftercare programme are :

 The State government shall prepare a programme for education of young adults, giving them employable skills and

placement. Places for stay will also be provided to them in order to facilitate their rehabilitation and reintegration

into the mainstream of the society.

 Order for placement of young adults under aftercare schemes will be passed by the Child Welfare Committee (CWC)

or the Juvenile Justice Board (JJB) as per Form 37. Aftercare services are provided till the age of 21 years, and in

exceptional circumstances, two more years after completion of 21 years.

 DCPU shall prepare a list of organizations, institutions and individuals interested for aftercare services as per their

areas of interest like education, medical support, nutrition, vocational training etc., and the list shall be forwarded to

the CWC or JJB of the district for their record.

 A post-release plan shall be prepared by the probation officer or child welfare officer or case worker or social worker,

keeping in view the needs of the child, two months before the child’s due date of departure.

 The power of monitoring post-release plan and examining effectiveness of aftercare programmes remains with the

JJB or CWC.
The services provided under aftercare programme include the following:

 Funds by the State Government, which are transferred directly to the bank accounts of beneficiaries, for meeting their

essential expenses.

 Temporary community group housing for 6 to 8 persons

 Stipend during vocational training, scholarship for higher education and support till employment

 Skills training and placement in commercial establishments through coordination with National Skill Development

Programme, Indian Institute of Skill Training and other Central or State Government programmes and corporates

 Provision of a counselor to stay in regular contact with the beneficiaries to discuss their rehabilitation plans

 Loans and subsidies for entrepreneurial activities

 Encouragement to sustain themselves without external support from State or other institutions
 MODULE 5

VICTIMOLOGY- CONCEPT & PHILOSOPHY

"Victimology must find fulfillment not through barbarity but by compulsory recoupment by the wrongdoer of
the damage inflicted, not by giving more pain to the offender but by lessening the loss of the forlorn."

- J. Krishna Iyer in Maru Ram & Ors. v. Union of India & Ors

THE CONCEPT OF VICTIM

The legal definition of the term 'victim' typically includes:-

"A person who suffered directly or threatened physical, emotional or pecuniary harm as a result of commission
of a crime, or in the case of a victim being an institutional entity, any of the similar harm by an individual or
authorised representative of another entity or group who are essentially covered under civil or constitutional
law and deserves assistance by the criminal justice system"

The UN General Assembly Declaration of 'Basic Principles of Justice for Victims and Abuse of Power', which
was adopted in November 1985 contains an exhaustive definition of the term 'victim of crime' in Articles 1
and 2 which reads as follows:

“(1) ‘Victims’ means natural persons who, individually or collectively, have suffered harm, including physical
or mental injury, emotional suffering or economic loss or violations of fundamental rights in relation to
victimizations identified under ‘scope’.

(2) A person is a victim regardless of whether the crime is reported to the police, regardless of whether the
perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship
between the perpetrator and victim. The term ‘victim’ also includes, where appropriate, the immediate family
or dependents of the direct victims and persons who have suffered in intervening to assist victims in distress
or to prevent victimization.”

In Section 2 (wa) of the Code of Criminal Procedure, 1973, “Victim means a person who has suffered any
loss or injury caused by reason of the act or omission for which the accused person has been charged and the
expression victim includes his or her guardian or legal heir.”
Classification of Victim:

(i) Primary Victim–

Any person, group or entity who has suffered injury, harm or loss due to illegal activity of someone is
called a primary victim. The harm may be physical, psychological or financial.

(ii) Secondary Victim–

There may also be secondary victim who suffer injury or harm as a result of injury or harm to the primary
victim.

(iii) Tertiary Victim–

Tertiary victim are those who experience harm or injury due to the criminal act of the offender. He is
another person besides the immediate victim, who is victimized as a result of the perpetrator’s action.

Example, in case of rape, the woman raped is the primary victim, while a child, if born out of such rape,
is the secondary victim because he/she suffers from lack of paternity. But the general shame and disgrace
which the entire family of the raped victim has to suffer at the hands of the society and the system makes them
tertiary victims. However, it cannot be assumed that secondary and tertiary victims are less traumatized than
the primary victims.

The U.N. Declaration of 1985 places victims under two broad heads, namely, (1) Victims of Crime; and (2)
Victims of Abuse of Power.

The noted Canadian Criminologist Abdel Fattah has classified victims of crime into five major categories as
follows:-

(1) Non-participating victims are those who are completely innocent. For example, foeticide, a crime against
being born, which is punishable under Section 315/316 of the Indian Penal Code. Miscarriage, kidnapping,
etc. are some other crimes the victims of which fall under this category. Infanticide, that is, crime against
unborn child, geronticide, i.e., killing of one's father or mother to get rid of them because of their advanced
age etc. are offences the victims of which are non-participating.

(2) Latent victims are those who have fallen a prey to a crime but do not know that they are in any way effected
thereby, e.g., blackmailing affects several victims but they do not feel its impact or evil effect. (3) Provocative
victims, e.g., victims of dowry death who are provoked by the offender to commit suicide. (4) Participating
victims. The crimes like sati, deodasi, prostitution, cyber-crimes on internet are some of the examples of
participating victims.

(5) The defiant or retaliating victims. Certain crimes by their very nature are such that the victim does not
readily yield to the offence and retaliates to the extent possible to see that the offence is not committed by the
perpetrator, but eventually fails in his effort to avoid the occurrence of crime. The common illustrations are
victims of rape, robbery, dacoity, cruelty against women, domestic violence etc.

The broad contents of victimology as a branch of criminology, may be stated as follows:

1. Victimization;
2. Victim-offender relationship;
3. Victim criminal justice perspective;
4. Victim and media;
5. Victims vis-a-vis societal relations;
6. Victims and costs of crime;
7. Compensatory redress for victims.

Hans Von Hentig (1948) carried out the work of Mendelsohn (1937) further and placed victims in five main
categories as follows:-

1. The innocent who fell a victim to crime being in the wrong place at the wrong time.
2. The depressive type who are easy target, being careless and unsuspecting. They mostly contribute to their
own injury.'
3. The greedy type who are easily duped because of craze for money and easy gain. of life
4. The 'wanton type' who are particularly vulnerable to stresses such as juveniles, preganant women, prostitutes
etc.
5. The tormentor type who are the victims of attack from the target of their abuse such as battered women, or
those in living-in-relationship

THE CONCEPT OF VICTIMOLOGY

The word “VICTIMOLOGY” was coined in 1947 by a French lawyer, Benjamin Mendelsohn from a Latin
word ‘VICTIMA’ and a Greek word ‘LOGOS’. Victimology is basically a study of crime from the point of
view of the victim, of the persons suffering from injury or destruction by action of another person or a group
of persons.
Victimology may be defined as the scientific study of victimization, including the relationships between
victims and offenders, the interactions between the victims and the criminal justice system; that is, the police
and courts, and correctional officials. It also includes connections between victims and other social groups
and institutions, such as the media, businesses and social movements.

In a narrow sense, victimology is empirical, factual study of victims of crime and as such is closely related to
criminology and thus maybe regarded as a part of the general problem of crime.

In broader sense, victimology is the entire body of knowledge regarding victims, victimization and the
efforts of society to perverse the rights of the victim. Hence, it is composed of knowledge drawn from such
fields as criminology, law, medicine, psychology, social work, politics, education and public administration.

The term ‘victim’ in general parlance refers to all those who experience injury, loss or hardship due to any
cause and one of such causes maybe crime. Therefore, victimology may be defined as a study of people who
experience injury or hardship due to any cause.

 Some Definitions:

According to New Webster’s Dictionary defines the word ‘victim’ means “a person destroyed, sacrificed, or
injured by another, or by some condition or agency; one who is cheated or duped; a living being sacrificed to
some deity, or in the performance of a religious rite”.

Schultz (1970)-

“Victimology is the study of degree of and type of participation of the victim in the genesis or development
of the offences and an evaluation of what is just and proper for the victim’s welfare.”

Drapkin and Viano (1974)-

“Victimology is the branch of criminology which primarily studies the victims of crime and everything that is
connected with such a victim.

Victimology has thus emerged as a branch of criminology dealing exclusively dealing exclusively with the
victims of crime who need to be treated with compassion and rendered compensation and assistance under the
criminal justice system.

THEORIES OF VICTIMOLOGY
With the advance of victimological studies, the theory of 'victim precipitation" came to be perceived as a
negative approach to victim because it only focused on how victim's own contribution led to his victimization.
Therefore, most of the criminologists refuse to accept this theory, it being destructive in nature.

Marvin Wolfgang, who opposed the theory of 'victim precipitation', believed in the phenomenon, of 'victim
facilitation' rather than 'victim blaming'. He did not blame the victim but asserted that the interactions of the
victim make him/her vulnerable to a crime. Thus, the idea behind victim facilitation is to study the elements
that make victim more accessible or vulnerable to a crime attack. Benjamin Meldelsohn propounded a three
model theory of victimology and observed that the conditions that precipitate crime can be classified into three
general categories as follows:-
(1) In terms of time and space, the victim being in the wrong place at a wrong time. (2) Attracting factors and
life-style also create a fertile ground for incidence of crime.
(3) There are certain pre-disposing factors such as being too young, being too poor, being in minority, being
unemployed etc. which may lead to the victimization of a person to crime.

Later, Cohen and Felson (1979) came out with their 'Routine Activities Theory', which pre-supposes that a
crime occurs when three conditions come together, namely (i) suitable target, (ii) motivated offender(s), and
(iii) absence of security or parental care or guardianship.

Earlier, when criminology was in its emerging stage, victimology simply meant study of crime from the
perspective of the victim. Mendelsohn and Von Hentig were the first to explore the possibility of developing
victimology as an independent branch of criminology and therefore, they are considered as the 'father of
victimology."
It has now been universally accepted that victim of crime is an identifiable person who has been harmed
individually and directly by the perpetrator of crime. However, there are certain crimes, such as white collar
crimes, wherein victims are not clearly identifiable or not directly linked to the crime but these crimes do
affect the society as a whole. Thus, in such cases, society in general, becomes a victim to the unlawful activities
of white collar criminals. Other crimes in which society itself is the victim are homicides, felonies, national
frauds, etc.

The modern trend is to study victimology as a multi-disciplinary subject. It is not only focused on victims of
crime but also encompasses within it, the study of victims of traffic hazards, natural disasters, war crimes,
abuse of power, corruption etc. The professionals involved in victimological studies may, therefore, be legal
practitioners, judges, policy makers, law teachers etc.
The expression 'primary', 'secondary' and 'tertiary' victimisation suggests that there is some sort of hierarchy
in the level of suffering experienced as a result of a crime. But it cannot be assumed that secondary and tertiary
victims necessarily suffer less trauma than the primary victims. They may also face the physical. psychological
and emotional pain similar to that of the primary victim. Therefore, it would not be correct to define primary,
secondary and tertiary victims in terms of more suffering, less suffering or least suffering. For example, where
a person meets with an auto-accident when a truck negligently being driven by the driver hits an autorikshaw
and the person (occupant) was instantly killed, the deceased is the prime victim who has died. His wife is the
secondary victim, because now she is left with entire responsibility of supporting her children and family and
if she is not a working woman or sufficiently educated woman, her suffering would aggravate much more.
The three kids of the deceased person would be tertiary victims in this case because they suffered the impact
of the untimely loss of their father's support and now are burdened with the responsibility of helping their
mother financially or otherwise. Though they are the tertiary victims, suffering is perhaps far more than their
mother who is secondary victim of crime and the primary victim i.e. the deceased, having died there is hardly
any question of his suffering in strict sense of the term though it was unfortunate and fatal to his family.

The study of victims of crime and specially the reasons why some people are more vulnerable to victimization
than others, constitutes the core subject of study for victimologists around the world.' The entire philosophy
behind victimology therefore, centres round the 'victim' who is the lynch-pin' of victimological studies.

NATURE:

 Whether victimology is part of criminology?

There is a constant strife on this topic. According to Kirchhoff, “there is a criminology that calls itself
victimology when analyzing problems from a victim’s perspective.” But victimology is not criminological
victimology. Historically, however, victimology bloomed in criminology but victimologists started asking
different questions and they developed different strata of interests and explanations. Though victimology has
close connection to the concept of crime, the focus of victimology is the victim and not the whole social
structure and role of crime and criminal law in it. Hence, victimology is now evolved into an independent
subject matter of study.

 The Science of victimology

In the first symposium of Victimology held in Jerusalem it was stated that, “Victimology is the scientific
study of victimization, including the relationships between victims and offenders, the interactions between
victims and the criminal justice system- that is, the police and courts and the correctional officials, and the
connection between victims and other societal groups and institutions, such as the media, businesses and social
movements.
 Victimology as a science cannot be isolated from reality, even difficult realities. Science needs to go
beyond the purely observable ‘fact’ of victimization. Therefore, victimology as a science requires an analysis
and interpretation of victimization.

 Whether victimology is science or service?

The Vienna Declaration on Crime and Justice in 2000 declared that “We establish 2000 as a target date for
states to review their relevant practices, to develop further victim support services and awareness campaigns
on the rights of victims and to consider establishment of funds for the victims, in addition to developing and
implementing witness protection policies.”[11] Thus, victimology is also a service.

 Scope of Victimology

The victim is the forgotten party in the criminal justice system. It would be factually wrong if this type of
criticism would still be maintained today. Victimology has come of age. Victims, their needs and their rights,
are being consistently acknowledged in words, if not in deeds.

1. Victimology is study of crime from victim’s point of view:

Victimology is study of crime from victim’s point of view. After the Second World War the plight of
victims was seriously considered by many criminologists in Europe. B. Mendelsohn developed this branch of
criminology as there was growing concern for the plight of victims of all crime. The First International
Conference on Victimology under the auspices United Nations was held in Jerusalem in the year 1973
followed by another conference in Boston in 1976. There are many seminars and studies on victimology at
the regional, national and international level highlighting the problems of victims, legal position of victims in
criminal proceedings, compensation for victims.

2. Victimology analysis the victim-offender relations and the interactions between victims and the
criminal justice system:

The process of being a victim involves two dimensions, individual and societal. It is therefore incumbent
upon victimology to develop theoretical models that cut across levels of analysis and which incorporate the
dynamics of normal social intercourse as a basis of understanding how victims cope and in addressing victim
needs. There are three interfacing roles:

 Victim
 Persecutor
 Rescuer
 The victim requires a ‘persecutor’ the one who victimizes and the process is complete when there is a
‘rescuer’, one who saves the persecutor.

3. Victim of abuse of power:

Term ‘victim of abuse of power’ is such a broad and ambiguous concept that sometimes it is argued that
this concept includes, for example, abuse of power between States or between races, and even economic
exploitation of employees and consumers by large enterprises. An important object of the criminal justice
system is to ensure justice to the victims, yet he/she is not given any substantial right, not even to participate
in the criminal proceedings. To achieve this goal, training and education in victimology by trained
professionals of criminal justice will help.

‘Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power’ (UN, 1985) also
defines the victims of abuse of power like the victims of crime. The suffering through impairment of
fundamental rights is included. The Declaration makes it clear that far more victimization occurs as a result
of the actions of governments and business institutions than ever arises from what are defined as crimes under
national laws.

4. Victimology is study of restitution and compensation of the damages caused to the victim by the
perpetrator of crime:

Modern state is a welfare state in which the welfare of its citizens is of paramount importance. With new
developments in the field of victimology, the victims of crime have assumed a significant role. Now, efforts
are made to provide restitution to the victims. Compensation is given with the object of making good the loss
sustained by the victims or the legal representatives of the deceased.

5. Victimology is the study of Victimological clinic:

If we look at clinical victimological work, the treatment of victims, we have not only to look at hospitals;
we have to look at whole array of victim assistance organizations who are actively working to alleviate the
burden of victimization.

Thus, it is important to understand:

 Victim’s crime-related mental health problems

 What aspects of the criminal justice system process are stressful to victims?
 What can be done to help victims with their crime-related health problems and stress regarding the
criminal justice system?
IMPACT OF VICTIMISATION

The impact of crime on victim may be physical, financial or psychological.

PHYSICAL IMPACT
The victim is likely to experience a number of physical reactions to crime to which he has fallen a victim.
These may include hyper-tension, attributed either to fight against the perpetrator of crime and offer resistance
or the subdue and increased heart-beats, numbness, grief, sadness etc. At the time of crime being committed
against a person, he/she has to choose between "fight or flight", that is as being in meekly fall a prey to his
criminal act. Many a times, the physical reaction may not occur until the threat or danger has passed away and
the victim may suffer from a mental trauma at a later stage when his memory returns and he may suffer the
distress or shock even throughout his/her life.

Another significant physical impact of crime on the victim is physical injury by the son which may be apparant
and immediate or may be realised by the victim at a later stage. The injuries caused by knives or fire-arms are
usually fatal and more damaging. There may be some physical injuries which have a permanent effect whereas
some may be of a temporary nature i.e. healable in course of time.

FINANCIAL IMPACT.
The financial impact of crime on the victim may be in any one or more of the following forms:---
1. Costs and expenses incurred in medical treatment for physical injuries:
2. Damage to property or articles in possession;
3. Litigation cost incurred in fighting against the crime and criminal i.e. perpetrator;
4. Employment loss or financial suffering due to loss of earnings
5. Funeral or burial expenses, if any.

Besides the physical and financial impact of victimization, the marital and other relationships of crime victim
are also likely to be adversely affected which may result in fatal consequences and even destroy his settled
family life. This generally happens in case of women who are victims of rape or any other sexual offence.

The offences such as murder, rape, torture, assault, robbery etc. have a lasting effect of insecurity, fear,
helplessness, anger etc. not only in the victim but the community as a whole which might also feel victimised
and insecure.
Researches on victimology have shown that the effect of victimization is particularly too hard on poor,
disabled and socially neglected people. In many cases, it so happens that once a victim has fallen a prey to a
crime, he/she is susceptible to subsequent victimisation by the same crime or other form of crime. This is often
true in case of victims of rape These "repeat-victims" find it difficult to get out of the clutches of the perpetrator
of crime for a variety of reasons.

PSYCHOLOGICAL IMPACT

Where the victim is confronted with the crime perpetrator immediate reaction will be anger or fear depending
on his physical strength and capacity to face the misfortune. Shock and mental trauma follow subsequently
after the crime has been committed and the victim regains senses and is able to recapitulate as to how he has
been victimised. He gets so much distressed that he loses self-confidence and self-esteem and life seems to
have no meaning for him. The psychological impact of victimization is clearly reflected in the behavioural
responses of the crime victim, which may include increased alcoholism, excessive use of drugs, segregation
of social relationships, avoidance of people's contact or social withdrawal and so on. There may, however, be
some victims who are able to shed aside their distress and shock and return to normal life in course of time.
The capacity of victims to cope with the effect of crime varies spending on his/her mental frame. While some
victims may develop a serious post-traumatic stress disorder (PTSD), others may not be so affected. The PTSD
assumes a more serious form when victim finds that he/she is not believed or people do not want to share her
horrible experiences and attribute his/her victimization to his/her own fault or carelessness. This is more true
in case of a rape victim when people blame her for having 'walked alone' or "dressed attractively".

SECONDARY VICTIMIZATION

From Criminal Justice and Society Having suffered primary victimization in the form of physical, financial
or emotional impact of crime, the crime victim, more often than not is also subjected to secondary
victimization from tiresome court proceedings and also the society as a whole. The victim suffers from
secondary victimization if his/her human or legal rights are refused by the court due to manipulated evidence
put forth by the criminal and the court gives its decision against the victim on the basis of that evidence.

This institutionalised victimisation is more painful for the victim. Even at the investigation and trial stage of
the case, the victim may have to suffer secondary victimization at the hands of police and investigation
personnel. It is mainly due to procedural processes and procedure of the criminal justice system which shows
little concern for the mental torture and suffering of the victim and concentrates more on the prosecution of
the offender.
RIGHTS OF VICTIMS

In India, the rights of victims are recognized and protected under both penology (the study of punishment and
the penal system) and victimology (the study of
victims and their experiences). Over the years, various laws and legal provisions have been enacted to
safeguard the rights and interests of victims in the criminal justice system. Here are some key rights of victims
in India under the subjects of penology and victimology:

Right to Dignity and Fair Treatment

Victims have the right to be treated with dignity and respect throughout the
criminal justice process. They should not be subjected to any form of harassment, intimidation, or
discrimination.

Right to Information
Victims have the right to be informed about their rights, the progress of the case and the stages of the criminal
justice process. They should be provided with information about the accused, the charges, and court
proceedings.

Right to Compensation
Victims of certain crimes are entitled to compensation under the Victim Compensation Scheme, which
provides financial assistance to help victims recover from physical and emotional injuries. Compensation may
be awarded for medical expenses, loss of property, loss of earnings, and pain and suffering.

Right to Participation
Victims have the right to participate in court proceedings, including the right to be heard during the trial and
sentencing stages. They can also file complaints and seek redress for any injustices they may have suffered.
Right to Protection
Victims have the right to protection from threats, intimidation, and retaliation by the accused or their
associates. Special measures, such as witness protection, may be provided to ensure their safety.
Right to Restitution
Victims may seek restitution from the offender to recover losses suffered as a result of the crime. Restitution
can include compensation for stolen property, medical bills, and other tangible losses.

Right to Privacy
Victims have the right to privacy and confidentiality regarding their personal
information and statements. Their identity should not be disclosed without their
consent, except when required by law.
Right to Speedy Justice
Victims have the right to a timely and expeditious trial process. Delays in court
proceedings should be minimized to ensure swift justice.

Right to Legal Assistance

Victims may seek legal assistance and can be represented by a lawyer during court proceedings. Legal aid
may also be provided to victims who cannot afford legal representation.

Right to Relief and Rehabilitation

Victims of certain crimes, such as human trafficking and sexual assault, are entitled to rehabilitation and
support services. These services may include counseling, medical care, and vocational training.

These rights of victims are enshrined in various laws and guidelines, including the Code of Criminal Procedure
(CrPC), the Indian Evidence Act, and the National Legal Services Authority (NALSA) guidelines.
Efforts are ongoing to strengthen the legal framework and improve victim support services in India.

In India, compensation to victims of crimes is an essential aspect of victimology and penology, aimed at
providing financial assistance and support to individuals who have suffered physical, emotional, or financial
harm as a result of criminal acts. Compensation is granted under various legal provisions and schemes to help
victims recover and rebuild their lives.

POSITION IN INDIA:

The police play a pivotal role in victim assistance as it is the first agency victims come into contact with
after being victimized by a crime. The attitude of the victims towards the entire criminal justice system will
be based on the kind of treatment the victims get from the police whom they first encounter. Unfortunately, in
India the police are still not oriented to meet the expectations of the victims as per the UN Handbook on Justice
for Victims. The police at the field level who are in actual contact with the victims in day–to-day crime
situations are blissfully ignorant of the international developments in the field of Victimology and the better
treatment victims deserve from the police.

The UN Handbook says that “victims have a valid interest in the prosecution of the case and should be
involved at all stages of the proceedings”. In practice, the entire court proceedings protect the rights and
interest of the accused, neglecting the victims’ interest. Excepting that the victims are summoned to tender
evidence in courts, the various services and assistance to be rendered by the prosecution to victims are not
practiced in the criminal courts in India. With regard to the role of the judiciary in justice for victims, though
judges are by and large sympathetic towards victims, on many of the requirements, such as separate waiting
halls, information about the criminal proceedings, special services and support, ordering of restitution to
victims, victim participation, victim protection etc. we have a long way to go to realize victim justice in India.

However, in the last decade, there is greater awareness on the part of the higher judiciary of the need for a
better treatment of crime victims by the criminal justice agencies at different stages in India and this is reflected
in the recommendations of the different committees and commissions calling for reforms in the criminal
justice system.

Affirmative Action by the Higher Judiciary

 Restitution to Victims– Despite the absence of any special legislation to render justice to victims in
India, the Supreme Court has taken a proactive role and resorted to affirmative action to protect the
rights of victims of crime and abuse of power. The court has adopted the concept of restorative justice
and awarded compensation or restitution or enhanced the amount of compensation to victims,
beginning from the 1980s.
 Justice for Rape Victims – Guidelines for Victim Assistance in Bodhisattwa Gautam v. Subhra
Chakraborty, the Supreme Court held that if the court trying an offence of rape has jurisdiction to
award compensation at the final stage, the Court also has the right to award interim compensation. The
court, having satisfied the prima facie culpability of the accused, ordered him to pay a sum
of Rs.1000 every month to the victim as interim compensation along with arrears of compensation
from the date of the complaint. It is a landmark case in which the Supreme Court issued a set of
guidelines to help indigenous rape victims who cannot afford legal, medical and psychological
services, in accordance with the Principles of UN Declaration of Justice for Victims of Crime and
Abuse of Power, 1985:
1. The complainants of sexual assault cases should be provided with a victim’s Advocate who has to
explain to the victim the proceedings, and to assist her in the police station and in Court and to guide
her as to how to avail of psychological counselling or medical assistance from other agencies;
2. Legal assistance at the police station while she is being questioned;
3. The police should be under a duty to inform the victim of her right to representation before any
questions are asked of her and the police report should state that the victim was so informed;
4. A list of Advocates willing to act in these cases should be kept at the police station for victims who
need a lawyer;
5. The Advocate shall be appointed by the Court, in order to ensure that victims are questioned without
undue delay;
6. In all rape trials, anonymity of the victims must be maintained;
 7. It is necessary, having regard to the Directive Principles contained under Article 38(1) of the
Constitution of India, to set up a Criminal Injuries Compensation Board. Rape victims frequently incur
substantial financial loss. Some, for example, are too traumatized to continue in employment;
8. Compensation for victims shall be awarded by the Court on conviction of the offender and by the
Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will
take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the
expenses of childbirth if this occurred as a result of the rape.
 State Compensation for Victims of Abuse of Power– As early as 1983, the Supreme Court
recognized the need for state compensation in cases of abuse of power by the State machinery. In the
landmark case of Rudul Shah v. State of Bihar, the Supreme Court ordered the Government of Bihar
to pay to Rudul Shah a further sum of Rs.30,000 as compensation, which according to the court was
of a “palliative nature”, in addition to a sum of Rs.5,000, in a case of illegal incarceration of the victim
for long years. Similarly in Saheli, a Women’s Resources Centre through Mrs . Nalini Bhanot v.
Commissioner of Police, Delhi Police, the Court awarded a sum of Rs.75, 000 as state compensation
to the victim’s mother, holding that the victim died due to beating by the police.
 Victims right to challenge bail– In Puran v. Rambilas and P. Rathinam v. State, the Apex Court
interpreted Section 439 (2) Cr.P.C. in a way that the victim has a say in the grant of bail to an accused.
The Court recognized the right of the complainant or any ‘aggrieved party’ to move the High Court or
the Court of Sessions for cancellation of a bail granted to the accused.

Recommendations of Commissions and Committees on Justice to Victims in India

During the last decade, there has been significant change in the thinking of the judiciary about the human
rights of victims. The concern of the courts and the judicial commissions and committees about the need to
have a law on victim compensation or a comprehensive law on victim justice has been reflected in their
judgments and reports.

 The Law Commission of India, 1996

The Law Commission, in its report in 1996, stated that, the State should accept the principle of providing
assistance to victims out of its own funds,

1. in cases of acquittals; or
2. where the offender is not traceable, but the victim is identified; and
3. also in cases when the offence is proved
 The Justice Malimath Committee on Reforms of Criminal Justice System
 The Justice V. S. Malimath Committee has made many recommendations of far-reaching significance to
improve the position of victims of crime, including the victim’s right to participate in cases and to adequate
compensation. Some of the significant recommendations include:

1. The victim, and if he is dead, his legal representatives shall have the right to be impleaded as a party
in every criminal proceeding where the charge is punishable with 7 years imprisonment or more.
2. The victim has a right to be represented by an advocate of his choice, provided that if the victim is not
in a position to afford a lawyer, the State would provide him with so.

The victim’s right to participation in a criminal trial shall, inter alia, include:

3. To produce evidence, oral or documentary, with leave of the court and/or to seek directions for
production of such evidence
4. To ask questions to the witnesses or to suggest to the court questions which may be put to the witnesses
5. To know the status of investigation and to move the court to issue directions for further investigation
on certain matters or to a supervisory officer to ensure effective and proper investigation to assist in
search of truth
6. To be heard in respect of the grant or cancellation of bail
7. To be heard whenever prosecution seeks to withdraw
8. To advance arguments after the prosecutor has submitted arguments
9. To participate in negotiations leading to settlement of compoundable offences
10. The victim shall have a right to prefer an appeal against any adverse order passed by the court
acquitting the accused, convicting him for a lesser offence, imposing inadequate sentence or granting
inadequate compensation
11. Victim compensation is a State obligation in all serious crimes, whether the offender is apprehended
or not, convicted or acquitted. This should be organized in a separate legislation by the Parliament.
12. The victim compensation law will provide for the creation of a Victim Compensation Fund to be
administered possibly by the Legal Services Authority.

Amendments to the Code of Criminal Procedure in 2008:

The Code of Criminal Procedure was amended to bring in various victim-friendly provisions, such as:

 Definition of Victim
 The definition of Victim was added in Section 2 (wa), which states that, “Victim means a person who has
suffered any loss or injury caused by reason of the act or omission for which the accused person has been
charged and the expression ‘victim’ includes his or her guardian or legal heir.”

 Victim’s right to engage his advocate

Section 24 (8) gives the victim the right to engage his advocate, “provided that the Court may permit the
victim to engage an advocate of his choice to assist the prosecution.”

 Recording of statement of rape victim under Section 157

In Section 157, a proviso has been inserted after sub-section (1), “Provided further that in relation to an
offence of rape, the recording of statement of victim shall be conducted at the residence of the victim or in the
place of her choice and as far as practicable by a woman police officer in the presence of her parents or
guardians or near relatives or social worker of the locality.”

Section 327, has been amended to the following effect, “Provided further that in camera trial shall be
conducted as far as practicable by a woman judge or magistrate.” Also that publication of trial proceedings
relating to rape cases shall be prohibited, however, the ban on printing or publication can be lifted, subject to
maintaining confidentiality of name and address of the party.

 Investigation within three months in case of Child Rape

Section 173 (1A) provides that, “The investigation in relation to rape of a child may be completed within
three months from the date on which the information was recorded by the officer in charge of the police
station.”

 Victim’s right to appeal

Proviso to Section 372 gives right of a private appeal to a victim, thus providing the victim with a locus
standi, however, the right to appeal against inadequacy of punishment is available only on two grounds:

 If accused has been convicted for a lesser offence, example, he was convicted for robbery instead of
dacoity
 If inadequate compensation is given.
 The victim, however, cannot appeal on quantum of punishment.

The Criminal Law (Amendment) Act, 2013

 The Criminal Law (Amendment) Act, 2013 is a result of the Justice Verma Committee Report which
dealt in the rape laws and their amendment. This Committee was constituted in the aftermath of the brutal
Delhi Gang rape case of 16th December 2012.

The Committee recommended that the gradation of sexual offences should be retained in the Indian Penal
Code, 1860 (IPC).

The Committee was of the view that rape and sexual assault are not merely crimes of passion but an
expression of power. Rape should be retained as a separate offence and it should not be limited to penetration
of the vagina, mouth or anus. Any non-consensual penetration of a sexual nature should be included in the
definition of rape.

The IPC differentiates between rape within marriage and outside marriage. Under the IPC sexual
intercourse without consent is prohibited. However, an exception to the offence of rape exists in relation to
un-consented sexual intercourse by a husband upon a wife. The Committee recommended that the exception
to marital rape should be removed. Marriage should not be considered as an irrevocable consent to sexual
acts. Therefore, with regard to an inquiry about whether the complainant consented to the sexual activity, the
relationship between the victim and the accused should not be relevant. However, non-consensual sexual act
within marriage is still not made punishable, even though the amount of punishment has been increased.

The Indian Penal Code (IPC) was amended to provide death penalty in rape cases that cause death of the
victim or leave her in a vegetative state. The Act also introduced several other new offences such as causing
grievous injury through acid attacks, sexual harassment, use of criminal force on a woman with intent to
disrobe, voyeurism and stalking.

In the case of State (Govt. of NCT of Delhi) v. Ram Singh (deceased), Mukesh, Akshay Kumar Singh, Vinay
Sharma and Pawan Kumar, Shri Yogesh Khanna, Additional Sessions Judge, New Delhi, awarded death
penalty to the accused person as the facts showed a brutality of such a nature that it fell into the category of
rarest of rare cases, the entire intestine of the prosecutrix was perforated, splayed and cut open due to repeated
insertions of rods and hands. The convicts, in the most barbaric manner, pulled out her internal organs with
their bare hands as well as by the rods and caused her irreparable injuries, thus exhibiting extreme mental
perversion not worthy of human condonation. They brutally gang raped the prosecutrix, inflicted inhuman
torture and threw the defenceless victims out of the moving bus in naked condition, profusely bleeding in a
cold winter night.

The Court further held that, “These are the times when gruesome crimes against women have become
rampant and courts cannot turn a blind eye to the need to send a strong deterrent message to the perpetrators
of such crimes. The increasing trend of crimes against women can be arrested only once the society realize
that there will be no tolerance from any form of deviance against women and more so in extreme cases of
brutality such as the present one and hence the criminal justice system must instil confidence in the minds of
people especially the women. The crime of such a nature against a helpless woman, per se, requires exemplary
punishment.”

Another amendment is the addition of Section 326 A regarding the acid attacks, the proviso clearly states
that the fine which is imposed on the convict shall be such that it is just and reasonable to meet the medical
expenses of the treatment of the victim of acid-attack. Such fine shall be imposed directly to the victim.

Other enactments regarding benefits to victims

 The Protection of Women from Domestic Violence Act, 2005

This Act is a major achievement of the women’s movement towards protection of domestic violence
victims after a struggle of 16 years. This Act aims to provide for more effective protection of the rights of
women guaranteed under the Constitution. The definition of domestic violence is wide enough to include
physical, sexual, verbal and emotional abuse. The unique feature of the Act is that it prohibits denying the
victim “continued access to resources or facilities which the aggrieved person (victim) is entitled to use or
enjoy by virtue of the domestic relationship, including access to the shared household”. A police officer,
protection officer or a magistrate who has received a complaint of domestic violence has a mandatory duty to
inform the victim of her right to obtain a protection order or an order of monetary relief and other rights.

 The Maintenance and Welfare of Parents and Senior Citizens Act, 2007

This is also an innovative law aiming to protect elders and prevent elder abuse and victimization, which is
a growing problem in many countries, including India. Under this law, an obligation is created of the children
or adult legal heirs to maintain their parents, or senior citizens above the age of 60 years who are unable to
maintain themselves out of their own earnings, to enable them to lead a normal life. If children or legal heirs
neglect or refuse to maintain the senior citizen, the Tribunal can pass an order asking the children or legal
heirs to make a monthly allowance for their maintenance.

 Protection of Children from Sexual Offences Act, 2012

This Act has been enacted with a view to prevent of child abuse and victimization. It makes any kind of
sexual gratification from a child punishable with strict punishments.

 Prevention of Caste-Based Victimization and Protection for Victims

The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is an act to prevent
atrocities against the members of the Scheduled Castes and Scheduled Tribes. Under this Act, compensation
to victims is mandatory, besides several other reliefs depending on the type of atrocity. The victims are entitled
to receive monetary compensation ranging from Rs. 25,000 to 200,000 depending on the gravity of the offence.

 Motor Vehicles Act, 1988

The victims of vehicular accidents or their legal representatives are entitled to compensation from the
offender under Section 5 of the Act.

INTERNATIONAL POSITION:

The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (UN General
Assembly, 1985), considered the ‘magna carta’ for victims, provides the basic framework of principles which
in the last two decades have been vociferously debated and converted as victims’ rights by some of the
developed countries. The international standards expected of the countries in the treatment of victims have
been elaborately detailed in the UN Handbook on Justice for Victims.

The newly generated interest in crime victims has led to certain trends and policies, some of them are as
follows:

 It is being increasing realized that the victim must be treated with dignity and respect by the criminal
law agencies, viz. The police and the courts. Often secondary victimization results because of the
indifferent and callous attitude not only of the criminal law agencies but also of the people in vicinity,
hospitals and mass media as well. In the USA and some European countries, statutory guidelines in
the form of “Victims Bill of Rights” are being provided.
 A victim has hardly any role in the criminal justice system though there is an increasing awareness
now that the victim must be given rightful participation in the trial. For instance, in USA under the
Witness Protection Act, 1982, victims are to be consulted in the plea bargaining process. In Germany,
compensation is now payable to a victim if the charges are dropped against an offender.
 Innovative use is being made of certain sentencing techniques like probation to provide relief to the
victims. An offender, in appropriate circumstances, may be released on probation, if willing to
compensate the victim. For instance, in England, under the Criminal Justice Act, 1982, as amended in
1988, the court must specify the reasons for not making an order for compensation.
 In certain kinds of situations where the guilt of the offender is clear, efforts are made to bring the victim
and wrong-doer together in order to lead them to agreement or adjustment for the restoration of losses
to the victim, there being a greater potential in this kind of approach rather than the mere punishment
of the offender.

At the International arena, the adoption by the General Assembly of the United Principles of Justice for Victims
of Crime and Abuse of Power, hereafter UN Declaration) constituted an important recognition of the need to
set norms and minimum standards in international and national legal framework for the rights of victims of
crime.
The UN Declaration recognised four major components of the rights of victims of crime:
(i) access to justice and fair treatment;
(ii) restitution
(iii) compensation
(iv) assistance

i) Access to justice and fair treatment - This right includes access to the mechanisms of justice and to prompt
redress, right to be informed of victim's rights, right to proper assistance throughout the legal process and right
to protection of privacy and safety.

ii) Restitution- including return of property or payment for the harm or loss suffered; where public officials or
other agents have violated criminal laws, the victims should receive restitution from the State.

iii) Compensation - when compensation is not fully available from the offender or other sources, State should
provide financial compensation at least in violent crimes, resulting in bodily injury for which national funds
should be established.

iv) Assistance- victims should receive the necessary material, medical, psychological and social assistance
through governmental, voluntary and community based means. Police, justice, health and social service
personnel should receive training in this regard.

ACCESS TO JUSTICE AND FAIR TREATMENT

Victims should be treated with compassion and respect for their dignity. They are entitled to access to the
mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they
have suffered

Judicial and administrative mechanisms should be established and strengthened where necessary to enable
victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and
accessible. Victims should be informed of their rights in seeking redress through such mechanisms.

The responsiveness of judicial and administrative processes to the needs Of victims should be facilitated by:

(a) Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition
of their cases, especially where serious crimes are involved and where they have requested such information;
(b) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the
proceedings where their personal interests are affected, without prejudice to the accused and consistent with
the relevant national criminal justice system;

(c) Providing proper assistance to victims throughout the legal process;

(d) Taking measures to minimize inconvenience to victims, protect their privacy. when necessary, and ensure
their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation;

(e) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting
awards to victims

Informal mechanisms for the resolution of disputes, including mediation, arbitration and customary justice or
indigenous practices, should be utilized where appropriate to facilitate conciliation and redress for victims.

RESTITUTION
Offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to
victims, their families or dependants. Such restitution should include the return of property or payment for the
harm or loss suffered, reimbursement of expenses incurred as a result of the victimization, the provision of
services and the restoration of rights.

Governments should review their practices, regulations and laws to consider restitution as an available
sentencing option in criminal cases, in addition to other criminal sanctions.

In cases of substantial harm to the environment, restitution, if ordered, should include, as far as possible,
restoration of the environment, reconstruction of the infrastructure, replacement of community facilities and
reimbursement of the expenses of relocation, whenever such harm results in the dislocation of a community.

Where public officials or other agents acting in an official or quasi-official capacity have violated national
criminal laws, the victims should receive restitution from the State whose officials or agents were responsible
for the harm inflicted. In cases where the Government under whose authority the victimizing act or omission
occurred is no longer in existence, the State or Government successor in title should provide restitution to the
victims.

ASSISTANCE
Victims should receive the necessary material, medical, psychological and social assistance through
governmental, voluntary, community-based and indigenous means.

Victims should be informed of the availability of health and social services and other relevant assistance and
be readily afforded access to them.

Police, justice, health, social service and other personnel concerned should receive training to sensitize them
to the needs of victims, and guidelines to ensure proper and prompt aid.

In providing services and assistance to victims, attention should be given to those who have special needs
because of the nature of the harm inflicted.

COMPESNSATION TO VICTIMS

UNDER INTERNATIONAL LAW

Article 8 of the Universal Declaration on Human Rights, 1948 recognizes the right to appropriate
compensation.

Article 13 of the European Convention on Human Rights, 1950 provides the right for an effective remedy
before national authorities for violations of human rights contained therein.

Article 9 (5) of the international Covenant on Civil and Political Rights, 1966:
‘Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to
compensation.’

Article 5, Para 5 of the American Convention on Human Rights, 1969: Right to Compensation which is
enforceable by victims of arrest or detention.

Article 10 of the American Convention on Human Rights, 1969: Right to Compensation for miscarriage of
justice.

Article 3 of the Protocol No. 7 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms, 1984: Right to Compensation for wrongful conviction.

INDIAN POSITION

Compensation to victims

Section 357 (1) and Section 357 (3) Cr.P.C. vest power in the trial court to award compensation to victims of
crime whereas similar power is vested in the Appellate and Revisional Court under sub-section (4). The Court
may appropriate whole or any portion of the fine recorded from the offender to be paid as compensation to the
victim of crime.
This compensation may be for costs, damage or injury suffered or loss caused due to death or monetary loss
incurred due to theft or destruction of property, etc.

Sub-section (3) empowers the court, in its discretion, to order the accused to pay compensation to victim of
his crime, even though no fine has been imposed on him.

Section 357-A has been inserted after the 2008 Amendment, it provides that:

"Section 357-A Victim Compensation Scheme (1) Every State government in co-ordination with the Central
Government, shall prepare a scheme for providing funds for the purpose of compensation to the victim or his
dependants who have suffered loss or injury as a result of the crime and who require rehabilitation.

(2) Whenever recommendation is made by the Court for compensation, the District Legal Services Authority
or the State Legal Services Authority, as the case may be, shall decide the quantum of compensation to be
awarded.

(3) If the trial court, at the conclusion of trial is satisfied, that the compensation awarded under Section 357 is
not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be
rehabilitated, it may make recommendation for compensation.

(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place,
the victims or his dependants may make an application to the State or the District Legal Services Authority
for the award of compensation.
(5)On receipt of such recommendation or on the receipt of application under sub- section (4), the State or the
District Legal Services Authority shall, after due enquiry, award adequate compensation after completing the
enquiry within 2 months.
(6) The said authority, to alleviate the suffering of the victim, may order for immediate first aid facility or
medical benefits to be made available free of cost on the certificate of police officer not below the rank of
officer in charge of the police station or a magistrate of the area concerned, or any other interim relief as the
authority may deem fit."

The scheme contained in the section is indeed a progressive measure to ameliorate the woes of crime victims
and providing them restorative justice. The Code also provides compensatory relief to victims of unlawful
arrest or detention by police without sufficient cause.

Where an accused is convicted of a non-cognizable offence on a complaint, the court may order him to pay
costs to the complainant or in default, suffer simple imprisonment for a period not exceeding thirty days.

In the Code of Criminal Procedure Section 357 B and Section 357 C have been added.

Section 357B CRC provides that, "The compensation provided under Section 357 A shall be in addition to the
payment of fine to the victim under Section 326A or Section 376D of the Indian Penal Code."

Section 357C Cr.PC provides that all hospitals, whether public or private, run by Central Government or State
Government, local bodies or any other person, shall immediately provide the first-aid or medical treatment,
free of cost, to the victim of any offence under Section 326 A, Section 376, Section 376 A to E of the Indian
Penal Code, and shall immediately inform the police of such incident.

Under the Victim Compensation Scheme, which is a part of the Criminal Injuries Compensation Scheme,
victims of various crimes, including violent and sexual offenses, can seek compensation. This scheme is
administered by the State Legal Services Authorities (SLSAs) and District Legal Services Authorities
(DLSAs) in each state and union territory. Compensation can be awarded to victims for various losses,
including medical expenses, loss of income, and pain and suffering. The amount of compensation may vary
depending on the severity of the injury and the nature of the crime. Victims can apply for compensation by
filing an application with the SLSA or DLSA, and the authorities will determine the eligibility and quantum
of compensation.
IMPLEMENTATION: SUCCESS & GAPS
In 2018, an amount of Rs 131.62 Crore was paid as compensation under Victim Compensation Schemes.
During the year 2019 – 20 (till November, 2019), an amount of Rs. 181.98 crores awarded as compensation.
Often there is gap between compensation awarded and compensation disbursed. Adequate amount not
received from State Governments at beginning of financial year. Sufficient amount from Nirbhaya Fund not
transferred to Victim Compensation Funds. Less references from Courts even in cases of victims of sexual
offences.

COMPENSATORY RELIEF TO VICTIMS-JUDICIAL TREND

The contribution of judiciary to redress the claims of victims of crime is no less significant. The higher courts
have played a dominant role in assuring compensatory justice to the victims of crime. While awarding such
compensatory relief, they have exercised due care and caution to ensure that people's faith in judicial process
is not shattered and the victims protective rights are not denied to them. Some of the landmark judgments of
the Supreme Court ensuring restorative justice to victims of crime reflect the growing concern of judiciary to
protect the rights of victims. Elaborating the scope of award of compensation to victim of crime under Section
358 of Cr.P.C.. Justice V Y. Chandrachud, CJI (as he then was), in Rudal Shah v. State of Bihar,' observed that
a person is entitled to compensation for the loss or injury caused by the offence, and it includes the wife,
husband, parent and children of the deceased victim.

The Apex Court in Sarwan Singh v. State of Punjab, enumerated the factors which the courts should take into
consideration while ordering award of compensation to the victim of crime. These factors include capacity of
the accused to pay, nature of the offence and the nature of injury suffered by the victim as also the overall
effect of crime on the victim's familial and social life and emotional or financial loss caused to to him/her. The
Court ruled that the quantum of compensation must be reasonable, depending upon the facts, circumstances
and justness of victim's claim. The accused must be given reasonable time for payment of compensation and
if necessary, it may be ordered to be paid in instalments.

In Bhim Singh v. State of J. & K., the Apex Court observed that "compensation for illegal arrest and detention
is an area which unearthed new doctrines pertaining to compensatory jurisprudence in India. In this case, the
appellant was a Member of the J.&K. Legislature Assembly who was arrested by the police in connivance
with the local A.D.M. while on his way to attend the Assembly session. He was maliciously and deliberately
arrested and detained in policy custody in order to prevent him from attending the Assembly session. Allowing
the petition. Justice Chinnappa Reddy, speaking for the Apex Court observed that where a person has been
arrested and detained with a malicious and mischievous intent and his legal and constitutional rights are
invaded, the malice and the invasion is not washed away by his being set free. The court has the jurisdiction
to order compensation to the victim. The State was therefore, directed to pay a compensation of Rs. 50,000/-
to the petitioner for the violation of his legal and constitutional right.

In Phoolwati v. NCT, Delhi, the Court awarded a compensation of three lakh rupees to the wife of the deceased
for the death of her husband caused in police custody.

The Supreme Court in the case of Nilabati Behera v. State of Orissa, emphasised on the need to evolve new
tools and mould the remedies for harm done to victims of crime. In this case, the petitioner had claimed
compensation for the death of her 22 years old son in police custody in District Sundergarh of Orissa. The
State Government on behalf of police contended that the deceased had escaped from police custody and he
was run over by a train while being chased by the police party. Therefore, it was not a custodial death.
However, the Supreme Court rejected the plea of the Government as there was no evidence of death having
been caused by the accident and awarded a compensation of one-and-a-half lakh rupees to the mother of the
deceased i.e. the petitioner.

The question of award of compensation to a victim of rape came up for adjudication before the Supreme Court
in the historic Bodhisarva Gautam v. Subhra Chakraborty's case. The Court in this case noted:

"Rape is a crime not only against the person of a woman, it is a crime against the entire society. It destroys the
entire psychology of a woman and pushes her into deep emotional crisis. It is, therefore, a most dreaded crime.
It is violative of the victim's most cherished right, namely right to life, which includes right to live with human
dignity as contained in Art. 21 of the Constitution." The Court ordered that the accused shall pay an interim
compensation of Rs 1000/- per month to the victim (woman) of his crime (i.e. rape) during the entire period
of trial proceedings. The Court further ruled that "compensation to victim under such conditions will be
justified even when the accused was not convicted. In State of Maharashtra v. Christian Community Welfare
Council of India, the Supreme Court was called upon to decide whether the compensation paid by the State to
the victim can be recovered from the guilty officer. Justice Hedge, speaking for the court held that it will
depend on the fact whether the alleged misdeed by the officer concerned was committed in the course of the
discharge of his official duties and whether it was beyond or in excess of his lawful authority. If it was found
that the appellant officers did cause the death of the deceased and exceeded their lawful authority, then they
cannot escape the liability to compensate the heirs of the deceased victim.

In R. Gandhi v. Union of India, the District Collector of Coimbatore had recommended that the State
Government shall pay Rs. 33.19.003/- as compensation to those families of Sikhs and others living in
Coimbatore, who were victims of arson and rioting in the wake of assassination of the former Prime Minister
of India, Shri Rajeev Gandhi. The High Court of Madras, upheld the order of the District Collector. Justice
S.A. Kadar of the Court observed:
"Legally and morally by all canons of fair play, by all principles of justice, equity and good conscience, the
State of Tamil Nadu is bound to pay compensation to victims as assessed and recommended by this senior
officer ie the Collector of Coimbatore.

In yet another landmark case on victim's compensatory relief, namely, D.K Basu v. State of West Bengal, the
Supreme Court, inter alia made the following observation:

"The monetary and pecuniary compensation is an appropriate and indeed. an effective and sometimes perhaps
the only suitable remedy for the redressal of the established infringement of the fundamental right to life of a
citizen by the public servants. The State is vicariously liable to which the defence of sovereign immunity is
not available and the citizen must receive the amount of compensation from the State; which shall have the
right to be indemnified from the wrongdoer." The Supreme Court in State of Andhra Pradesh v. Challa
Ramakrishna

Reddy, relying on its earlier decision in D.K. Basu, awarded Rs. 1,44,000/- as compensation against the State
Government for death of a person caused while he was in judicial custody. Rejecting the defence plea that the
prisoner was put in jail in exercise of State's sovereign function, the Court ruled that the concept of sovereign
power is not an exception to the right to freedom of life, and constitutional guarantee of right to live overrides
the theory of State immunity.

In Delhi Democratic Working Women Forum v. Union of India' seven military jawans raped six village girls
who were travelling by train. The court directed the Central Goverment to pay Rs. 10000/- to each victim as
compensation and ordered that the names and identity of the victimised girls be kept secret to save them from
social stigma. The court also directed the National Women Commission. to prepare a rehabilitation scheme
for such victims and expressed the need for setting up of a Criminal Injuries Compensation Board which
should decide the quantum of compensation to be paid to victims of rape after taking into consideration their
shock, suffering as well as loss of earning due to pregnancy and the expenses of child birth, if caused as a
result of rape.

In the case of SAHELI (a women social activist organisation) the Apex Court directed the Delhi administration
to pay Rs.75,000/- as exemplary compensation to the mother of a nine-year-old boy who died due to beating
by police officer while extracting information from him regarding the offence. The dispute in this case was
related to the land lord (house owner) trying to oust the appellant (mother of the deceased boy) from his house
and the police was allegedly favouring the landlord. The Supreme Court in its historic judgment in Mallikarjun
Kodagali v. State of Karnataka, dealt with the miserable plight of crime victims and observed :- "The
tribulations of victims of crime begin with the trauma of the crime itself, and, unfortunately, continue with the
difficulties they face in something as simple as the registration of the FIR. The ordeal continues, quite
frequently, in the investigation that may not necessarily be unbiased, particularly in respect of crime against
women and children. Access to justice in terms of affordability, effective legal aid and advice as well as
adequate and equal representation are also problems that the victim of crime has to contend with and which
has impact on society, the rule of law and justice delivery....what follows in a trial is often secondary
victimization through repeated appearances in court in a hostile or semi-hostile environment in the
courtrooms."

In another progressive move in [Suresh Vs State of Haryana, (2015) 2 SCC 227], the Supreme Court
interpreted Section 357 of Cr. P. C, to include interim compensation also. The Court observed that:
It is the duty of the Courts, on taking cognizance of a criminal offence, to ascertain whether there is tangible
material to show commission of crime, whether the victim is identifiable and whether the victim of crime
needs immediate financial relief. On being satisfied on an application or on its own motion, the Court ought
to direct grant of interim compensation, subject to final compensation being determined later.

COMPENSATION TO THE VICTIMS IN THE SPECIAL LAWS

a) Under the Probation of Offenders Act, 1958

According to Section 5 of Probation of Offenders Act, 1958, a court directing the release of an offender under
Section 3 or under Section 4 of the Act may, if it thinks fit, at the same time, a further order directing him to
pay such compensation as the court thinks reasonable for the loss or injury caused to any person due to the
commission of the offence by him.

b) The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Act, 1989

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, provides the monetary relief
to the victims of crime ranging from Rs 25,000 to 2,00,000 depends on the nature of offence and circumstances
of the case.

c) Domestic Violence Act. 2005

This Act provides for more effective protection of the rights of women guaranteed under the Constitution who
are victims of violence of any kind occurring within the family setting as domestic violence. In this context,
Sections 20 to 24 are relevant in protection of victims of domestic violence through compensatory justice.
The trial court may on an application being made by the aggrieved person, pass an order directing the
respondent to pay compensation and damages for the injuries, including mental torture and emotional distress,
caused by the acts of domestic violence committed by that respondent.

DUTY OF STATE TO MAINTAIN THE DEPENDANTS

In the context of victimology, which is the scientific study of victims and their experiences within the criminal
justice system and society at large, the duty of the state to maintain state dependents takes on specific
relevance. Victimology focuses on understanding and addressing the needs, rights, and experiences of
individuals who have been victimized, including those who may be considered state dependents due to their
victimization. Here are some key considerations:

Protection of Vulnerable Victims: The state has a duty to protect vulnerable individuals who are at risk of
victimization. This includes children, the elderly, individuals with disabilities, and others who may be more
susceptible to victimization due to their circumstances. The state may implement policies and programs aimed
at preventing victimization among these groups.

Support for Victims: When individuals become victims of crimes or abuse, the
state has a responsibility to provide support and assistance. This can include access to counseling, medical
care, legal representation, and other services to help victims cope with the physical, emotional, and financial
consequences of victimization.

Access to Justice: State dependents who are victims of crimes should have equal access to justice. This means
that they should be able to report crimes, participate in legal proceedings, and seek remedies and justice
without discrimination or undue hardship.

Legal Protections: Victimology emphasizes the importance of legal protections

for victims. Laws and regulations should be in place to safeguard the rights and
interests of victims, and the state is responsible for enforcing these laws and
ensuring that victims receive fair treatment within the criminal justice system.
Restitution and Compensation: In cases where victims suffer financial losses as a result of victimization, the
state may have a duty to facilitate restitution or
compensation, either through the criminal justice system or other mechanisms.
This helps victims recover their losses and regain their financial stability.
Prevention and Awareness: The state should also work to prevent victimization through public awareness
campaigns, educational programs, and policies aimed at addressing the root causes of crime and victimization.
This includes efforts to reduce domestic violence, child abuse, and other forms of victimization.

Research and Data Collection: Victimology relies on research and data collection to better understand the
needs and experiences of victims, including state dependents who are victims. The state may fund and support
research initiatives in this field to inform policy and practice.

International Standards: Many countries adhere to international standards and

conventions related to victims rights and support. The state may have obligations under these international
agreements to ensure the protection and support of victims, including state dependents who are victims.

WHY IS THE REHABILITATION OF VICTIMS NECESSARY?

Rehabilitation means to restore and repair the harm suffered by the victim. All the rights and other measures
such as assistance, compensation, restitution, etc availed to the victims are the measure adopted for
rehabilitation.

 Removing the victim from a negative environment is very important to make the victims believe in the
criminal justice mechanism.
 It helps them to come out of what may have been caused due to victimization.
 It provides medical and psychological aid which is very necessary for crime victims who may have
undergone physical and mental trauma.
 For social reintegration and repairing the reputation damage that happened following the victimization
 For making victims financially independent.

RIGHT TO VICTIMS' REHABILITATION:

In a landmark case-Custodial Torture of Rakesh Kumar Vij by Uttar Pradesh Police (NHRC Case No.
12982/96-97), the NHRC asked the UP Government to constitute a Medical Board to assess the extent of
physical disability suffered by the victim due to torture by UP Police. The Medical Board, gave a report to the
Commission, stating that the victim did not suffer from any gross structural damage, on which the victim
raised doubts and communicated to the Commission.
In view of grave apprehensions of miscarriage of justice, the Commission got the victims examined by the
Delhi Trauma and Rehabilitation Centre, which gave an entirely different report and assessment. Then, the
Commission thus directed the UP Government to pay Shri Rakesh Vij Rs. 10 lakhs by way of immediate
interim relief. The Government was also directed to arrange for the complete medical treatment of victim. The
expenses of the treatment as well as the traveling expenses of victim along with one attendant, from his native
place to the place of medical treatment at AIIMS, New Delhi or PGI, Lucknow, would also be borne by the
State Government. This way the Commission has recognised the right to rehabilitation of victims in holistic
manner.

Besides establishments of NHRC and SHRCS at National and State level, under Section 30 of the Protection
of Human Rights Act, the State Governments may, with the concurrence of the Chief Justice of the concerned
High Court, by notification specify for each district a Human Rights Court to try the offences arising out of
the violation of Human Rights. The NHRC time and again has stated that in order to give a better focus to this
laudable provision and to provide justice at the district level itself in case of human rights violations, the
section needs amendment. Further the lack of clarity as to what offences. precisely, can be clarified as human
rights offences, has been the biggest impediment in the effective functioning of human rights courts, which
have been set up by some of the states. The NHRC urged the Central Government through its annual reports
for amendment Section 30 of the Protection of Human Rights Act, 1993. It is rather unfortunate that the Central
and State Governments have so far failed to resolve issues that are creating impediments in the setting up of
fully functioning human rights courts. In order to provide access to justice for victims of human rights
violations including victims of crime at the local level (District level) the human rights courts could be an
effective and speedy justice mechanism, however due to lack of clarity of offences to dealt by these courts
and procedure to followed, this mechanism is under utilisation.

BEYOND COMPENSATION

 Need to understand and eliminate Secondary Victimization.

 Discourse on victimization must take into consideration the secondary victimization that follows the
offence. Secondary Victimization happens due to the medical processes, police processes during
investigation and criminal proceedings.
 Cases of Secondary Victimization are generally seen among victims of sexual assault.
 Criminal Proceedings meant for granting justice to a victim are often the source of secondary
victimization. It also happens due to society at large.

Attitude of society has a major impact on victims.

WITNESS PROTECTION SCHEME: A POSITIVE STEP

Will provide confidence to the witnesses to come forward to assist law enforcement and Judicial Authorities
with full assurance of safety. Will safeguard witnesses and their family members from intimidation and threats
against their lives, reputation and property.

Supreme Court of India in its Judgment dated 05.12.2018 in Writ Petition (Criminal) No. 156 of 2016 titled
Mahendra Chawla v. Union of India, has approved the Scheme, and directed the States to implement it.

STATE LIABILITY

Modern state has assumed the role of 'Parenspatriae' (Parent of the Country) hence duty of the state to
maintain law and order in the society. The state achieves its purpose through enactment and promulgation of
laws and it enforces obedience to the laws by the exercise of power.

Another functional justification for victim compensation is the welfare theory

arising from the assumption that the government exists and functions for the people. This approach holds that,
just as the state has a humanitarian duty to the poor, the sick, the unemployed, the underprivileged, the disabled
veteran, and so on, it has a duty towards the victims of crime also. However, this duty is based not on any
contractual obligation on the part of the state, but on the social conscience of its rulers and its citizenry.
Hardly any state victim compensation legislation admits of this orientation; yet, such provisions as financial
need requirements or minimum loss requirements are clearly based on the theory of welfare state.

Rudal Shah v .State of Bihar

In this case it was laid down a most important principle of compensation against government for the wrong
action of its official the important judgment was handed down by the Supreme Court against the Bihar
Government for the wrongful and illegal detention of Rudal Shah in Muzaffarpur jail for as many as 14 yrs
after he was acquitted by the Sessions Court in June 1968. The Court ordered compensation of Rs 30,000 for
the injustice and injury done to Rudal Shah and his helpless family.

The Court observed that:

The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name
of public interest and which present for their protection the powers of the State as a shield. If civilization is
not to perish in this country as it has perished in some others too well-known to suffer mention, it is necessary
to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy.
Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse
against those officers.
Saheli, A Women’s Resources v. Commissioner Of Police
Saheli v. Commissioner of Police was another milestone in the evaluation of compensation jurisprudence in
writ courts. The State was held liable for the death of nine-year-old child by Police assault and beating. Delhi
Administration was ordered to pay compensation of Rs. 75000/-. The significance of this case is that firstly,
the revival of Vidyawati ratio and secondly that the Delhi Administration was allowed to recover money from
those officers who are held responsible for this incident.

In Bhim Singh v. State of J. & K., the Apex Court observed that "compensation for illegal arrest and detention
is an area which unearthed new doctrines pertaining to compensatory jurisprudence in India. In this case, the
appellant was a Member of the J.&K. Legislature Assembly who was arrested by the police in connivance
with the local A.D.M. while on his way to attend the Assembly session. He was maliciously and deliberately
arrested and detained in policy custody in order to prevent him from attending the Assembly session. Allowing
the petition. Justice Chinnappa Reddy, speaking for the Apex Court observed that where a person has been
arrested and detained with a malicious and mischievous intent and his legal and constitutional rights are
invaded, the malice and the invasion is not washed away by his being set free. The court has the jurisdiction
to order compensation to the victim. The State was therefore, directed to pay a compensation of Rs. 50,000/-
to the petitioner for the violation of his legal and constitutional right.

In Phoolwati v. NCT, Delhi, the Court awarded a compensation of three lakh rupees to the wife of the deceased
for the death of her husband caused in police custody.

The Supreme Court in the case of Nilabati Behera v. State of Orissa, emphasised on the need to evolve new
tools and mould the remedies for harm done to victims of crime. In this case, the petitioner had claimed
compensation for the death of her 22 years old son in police custody in District Sundergarh of Orissa. The
State Government on behalf of police contended that the deceased had escaped from police custody and he
was run over by a train while being chased by the police party. Therefore, it was not a custodial death.
However, the Supreme Court rejected the plea of the Government as there was no evidence of death having
been caused by the accident and awarded a compensation of one-and-a-half lakh rupees to the mother of the
deceased i.e. the petitioner.

In State of Maharashtra v. Christian Community Welfare Council of India, the Supreme Court was called upon
to decide whether the compensation paid by the State to the victim can be recovered from the guilty officer.
Justice Hedge, speaking for the court held that it will depend on the fact whether the alleged misdeed by the
officer concerned was committed in the course of the discharge of his official duties and whether it was beyond
or in excess of his lawful authority. If it was found that the appellant officers did cause the death of the deceased
and exceeded their lawful authority, then they cannot escape the liability to compensate the heirs of the
deceased victim.

In R. Gandhi v. Union of India, the District Collector of Coimbatore had recommended that the State
Government shall pay Rs. 33.19.003/- as compensation to those families of Sikhs and others living in
Coimbatore, who were victims of arson and rioting in the wake of assassination of the former Prime Minister
of India, Shri Rajeev Gandhi. The High Court of Madras, upheld the order of the District Collector. Justice
S.A. Kadar of the Court observed:

"Legally and morally by all canons of fair play, by all principles of justice, equity and good conscience, the
State of Tamil Nadu is bound to pay compensation to victims as assessed and recommended by this senior
officer ie the Collector of Coimbatore.

In yet another landmark case on victim's compensatory relief, namely, D.K Basu v. State of West Bengal, the
Supreme Court, inter alia made the following observation:

"The monetary and pecuniary compensation is an appropriate and indeed. an effective and sometimes perhaps
the only suitable remedy for the redressal of the established infringement of the fundamental right to life of a
citizen by the public servants. The State is vicariously liable to which the defence of sovereign immunity is
not available and the citizen must receive the amount of compensation from the State; which shall have the
right to be indemnified from the wrongdoer."
The Supreme Court in State of Andhra Pradesh v. Challa Ramakrishna Reddy, relying on its earlier decision
in D.K. Basu, awarded Rs. 1,44,000/- as compensation against the State Government for death of a person
caused while he was in judicial custody. Rejecting the defence plea that the prisoner was put in jail in exercise
of State's sovereign function, the Court ruled that the concept of sovereign power is not an exception to the
right to freedom of life, and constitutional guarantee of right to live overrides the theory of State immunity.

THE WAY FORWARD -SUGGESTIONS

 Need to spread awareness about Victim Compensation Schemes and other welfare schemes amongst
masses.
 Capacities of duty holders be enhanced by regular training programmes. Coordination between Duty
holders must for maximising reach and implementation.
 Customisation of Court infrastructure to avoid secondary victimization.
 Procedures in Criminal Trial be made victim friendly.
 Need to connect Victims with available welfare Schemes.
 Creating eco-system for providing timely psychological counselling and rehabilitation.