​ Unit I - Introduction

Course Outline of Unit I: Introduction

This Unit contains discussion on following topics :

Meaning and Significance of Crime-Concept of Crime and basis of

Criminalization - Definition of Crime - Criminology - Criminological
Reminiscence: Global Scenario - Renaissance - Modern Age - Focus on
the need for Criminological Study - Ingredients of Crime - Distinguish
Crime from Non-Crime - Classification of Crimes - Development of
Criminal Law - Sources of Crime Data - Crime Reporting - Uses of Crime
Data - Schools of Criminology.

​
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Meaning of Crime
Introduction
To have a universal definition of crime has always been a tough task for legal
philosophers. According to prof. R.C. Nigam there are three attributes of crime. First
that it is harm brought about by some anti social act of human being, which the
sovereign power desires to prevent. Secondly, the preventive measures taken by the
states appear in the form of a threat of a sanction or punishment; and Thirdly, the
legal proceedings, wherein the guilt or otherwise of the accused is determined, are a
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special kind of proceedings governed by special rule of evidence .
From the formal or legal point of view, a crime is an action on which the community
has set a punishment. Unlike traditional crime which were not only fewer in number
but also were arising out of greed, land and lust, modern crimes are more complex
due to changed moral values and social opinions in rising industrialism, rapid means
of communication and scientific developments.
The function of criminal law is to preserve public order and decency, to protect
citizens from what is offensive or injurious and to provide sufficient safe guards
against exploitation and corruption of others.
Role of Criminal Law
The Criminal Law is the law which regulates social interests, arbitrates conflicting
claims and demands. Security of persons and property of the people is an essential
function of the State. It could be achieved through instrumentality of criminal law.
There is a cross cultural conflict where living law must find answer to the new
challenges and the courts are required to mould the sentencing system to meet the
challenges.
Protection of society and stamping out criminal tendency must be the object of the
law and which must be achieved by imposing appropriate sentence. Therefore law
as a cornerstone of the structure of order should meet the challenges confronting the
society. In operating the sentencing system law should adopt the corrective
machinery or the deterrence based on factual medium. Relevant facts which would
enter into the area of consideration are the facts and given circumstances in each
case, the nature of the crime, the manner in which it was planned and committed,
the motive for commission of the crime, the conduct of the accused, the nature of
weapons used and all other attending circumstances.
In prescribing liability the criminal law adheres in general to the principle of
proportionality according to the guilt of each kind of criminal conduct. It ordinarily
allows some significant discretion to the judge in arriving at a sentence in each case.
Judges in the essence affirm that punishment ought always to fit the crime; yet in
practice sentences are determined largely by other considerations.
Nature of Crime
In general terminology a crime may be defined as an act fit for serious condemnation
or an act which is looked down upon with disapprobation. In legal phraseology it
would be an act which the law of the land considers fit for punishment and the
person doing any act in contravention of the same is subjected to the punishment
prescribed therefore. To make it clear a crime may be described as an act committed
or omitted in violation of public law forbidding or commanding it.
All acts tending to the prejudice of the community are not ‘crimes’, unless they are
punishable under the law. A crime is an act or omission which is prohibited by law. A
crime is injurious to the public. It is punishable by the State for the welfare of public
2
at large .
A crime contains two basic elements i.e.. (i) mala-in-se, and ‘mala-prohibita’ for
example, some of the traditional crimes like murder, theft and rape etc. are known as
‘mala-in-se’, while various other crimes in which there is no element of immorality in
the traditional sense are known as ‘mala-prohibita’. They differ from place to place.
Crimes are not static, they are relative. Crimes differ from country to country and
time to time. For example adultery is mala-prohibita in India and a person who
commits the offence of adultery is punished under law, whereas in England it is not
prohibited.
There is vast difference between crime, sin, vice and social wrongs as well as moral
wrongs. The reason is that a crime is forbidden by law. There is also a prescribed
procedure and machinery to punish the persons who commit crime, whereas there is
no mechanism to punish anyone in the case of sin, vices and social or moral wrongs.
‘Sin’ is concerned with religion. Therefore if any person commits a sin, it is said that
he will be punished by God himself. What is ‘sin’ is dictated by that particular religion
to which he belongs. Likewise, vices, social and moral wrongs are wrongs only in the
eye of moral codes, or in social rules, but they are not recognised wrongs in the eyes
of law.
Distinction between Crime and Tort (Civil Wrong)
Meaning of Tort
The term ‘tort’ is derived from the Latin word, ‘tortum’, which means ‘twisted’ and its
equivalent word is ‘wrong’ or ‘wrongful act’. Tort may be defined as an injury or a
wrong committed with or without force to the person or property of another, and such
injury may arise by either the nonfeasance, malfeasance or misfeasance of the
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wrongdoer .
Every tortious act does not amount to a crime, nor does every crime include a tort.
Thus, mistaken or innocent trespass to one’s land or private nuisance is a tortious
act, but is not a crime for there is no element of danger to the public interest.
However, obstruction of a highway, prejury, homicide etc. are exclusively criminal
acts and not torts. But there are some cases where a wrong is both criminal and
tortious and the State prosecutes the wrongdoer and also affords the sufferer an
opportunity to claim damages by providing concurrent remedies such as assault,
false imprisonment, libel, theft etc. In such cases there is not only the violation of a
private right of bodily safety, property or reputation but such violation also constitutes
a menace to the safety of the society in general.
Both Crime and tort resemble each other in two respects, namely (i) tort and crime
are violation of right in rem; and (ii) they are fixed by law irrespective of the consent
of the parties, unlike contract. However, crime and tort are distinct as given below
Difference between Crime and Tort

S Crime Tort
.
N
o
.

1. A Crime is a breach of the A tort is a violation of the

public rights and duties private rights of an
which affect the whole individual.
community

2. A crime is a public wrong A tort is a civil wrong. It gives

which results in rise to civil proceedings
punishment
3. A crime is an offence against A tort causes injury or damage
the public at large or to an individual or group of
society as a whole individuals.

4. A crime is tried in Criminal A tort is tried in Civil Court

Court

5. In a crime, the victim is an In a tort, the plaintiff is the

individual. The Criminal injured party.
proceedings against the
wrong-doer are instituted
by the State.

6. The object of the Criminal The purpose of awarding

law is to protect the
community or society by
preventing and deterring
the offenders from
committing further
offences.
compensation to the
injured party in a tortuous
wrong is to make good the
loss suffered by him

In crime intention plays In tort, the intention is not an

7 important factor important factor
.

Generally an act shall not be Mens rea (motive) has no

8 punished as a crime, place in tort.
. unless there is mens rea
(i.e. motive) actually
present in the
wrong-doer.

In criminal cases, burden of Burden of Proof lies on the

9 proof lies on the State. injured/complainant
.
 The injured becomes a
witness only.
1 Strict rules of procedure and
0 principles are followed in
. fixing the liability of the
criminal.
1 Criminal law, generally, does
1 not permit settlement of a
. case by compromise
between parties.
However, sec. 320 of the
IPC provides for an
exception to this rule.
1 The person who commits
2 crime is called accused
. (before guilt is proved)
and convict (after guilt is
proved) or criminal.
Crime arises on account of
1 statutory enactments
3 personal obligation under
. a contract.
1 All the Crimes are defined
4 and punishments are
. prescribed and criminal
law is codified.
While dealing with civil wrongs
natural principles of justice,
good conscience, equity,
etc. are followed in fixing
the wrong-doer’s liability.
Law permits the parties to
settle the dispute. In other
words, the plaintiff can
withdraw the suit filed by
him.
The person who commits tort
is called ‘the feasor’ or
‘wrong doer’.
Tort arises out of liability
independent of any
Most of the Law of the Torts is
judge-made law. It is not
codified.
 1 The offences defined under
5 the criminal law are
. notorious for moral
unscrupulousness. They
are treated as morally
depraved aggravated
heinous and dangerous
to the individuals and
also to the society.
The offences under the torts
do not involve any element
of moral turpitude. The
wrong-doer of torts are
punished by way of
damages for the better
social welfare and
efficiency.

1 The Offender is punished by The wrong-doer has to

6 the State, such
. punishment may be fine
or imprisonment. The
nature of punishment is
heavy.
compensate the aggrieved
party, such compensation
may be nominal, ordinary
or exemplary according to
the magnitude of the tort.
The nature of punishment
is generally lighter.

1 The amount collected by way The payment made by the

7 of penalty and fine is not wrongdoer as
. paid to the victim, but that compensation goes to
amount is credited into injured party.
State account.

Basis of crime and Criminalization

Criminalization, in criminology, is "the process by which behaviours and
individuals are transformed into crime and criminals". Previously legal acts
may be transformed into crimes by legislation or judicial decision. However,
there is usually a formal presumption in the rules of statutory interpretation
against the retrospective application of laws and only the use of express
words by the legislature may rebut this presumption. The power of judges to
make new law and retrospectively criminalize behaviour is also discouraged.
In a less overt way, where laws have not been strictly enforced, the acts
prohibited by those laws may also undergo de facto criminalization through
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more effective or committed legal enforcement .
‘Definition of Crime’
Definitions
The word ‘Crime’ is derived from Greek expression Krimos’ which means
social order and it is applied ‘to those acts that go against social order and are
worthy of serious condemnation’. The word ‘Crime’ has not been defined in
the Indian Penal Code’, Definitions given by eminent criminologists and
sociologists are as given below:
As a Public Wrong
Sir William Blackstone defines crime in two ways: (i) Crime is “an act
committed or omitted in violation of a public law forbidding or commanding it”.
(ii) “A crime is a violation of the public rights and duties due to the whole
community, considered as a community. Sir James Stephen, while modifying
the Blackstone’s definition, states, “A crime is a violation of a right, considered
in reference to the evil tendency of such violation as regards the community at
large”.
As a Moral Wrong
According to Raffeale Garafalo, “Crime is an immoral and harmful act that is
regarded as criminal by public opinion because it is an injury to so much of
the moral sense as to community- a measure which is indispensable for the
adaptation of the individual to society”.
As a Conventional Wrong
Edwin Sutherland says, “Criminal behaviour is behaviour in violation of the
criminal law. No matter what the degree of immorality, reprehensibility, or
indecency of an act, it is not a crime unless it is prohibited by the Criminal law.
The Criminal law, in turn, is defined conventionally as a body of specific rules
regarding human conduct which have been promulgated by political authority,
which apply uniformly to all members of the classes to which the rules refer,
and which are enforced by punishment administered by the State.
Characteristics, which distinguish this body of rules regarding human conduct
from other rules, are therefore, politically, specificity, uniformity and penal
sanction.”
As a Social Wrong
According to John Gillin, a sociologist, “Crime is an act that has been shown
to be actually harmful to society, or that is believed to be socially harmful by a
group of people that has the power to enforce its beliefs and that places such
crimes under the ban of positive penalties.”
 As a Procedural Wrong
Austin says, “A wrong which is pursued by the sovereign or his subordinates
is a crime. A wrong which is pursued at the discretion of the injured party and
his representatives is a civil injury.”
According to Kenny, “Crimes are wrongs whose sanction is punitive, and are
in no way remissible by any private person, but are remissible by the crown
alone, if remissible at all.”
Other Definitions
As per the Oxford English Dictionary, Crime is “an act punishable by law as
forbidden by statute or injurious to the public welfare.”
Halsbury’s Laws of England provides, “A Crime is an unlawful act or default
which is an offence against the public and renders the person guilty of the act
or default liable to legal punishment.”
Osborn states, “Crime is an act or default which tends to the prejudice of the
community, and forbidden by law on pain of punishment inflicted at the suit of
the State.”
We find that it is very difficult to get a definition of crime suitable to all
countries for all the time. The following are, according to Jerome Hall,
interrelated and overlapping differential of crime:
1. There must be some external consequences or ‘harm’ to social
interests.
2. The harm must be ‘prohibited’ by penal law.
3. There must be ‘conduct’ i.e., intentional or reckless action or inaction
that brings prohibited ‘harm’.
4. There must be ‘mens rea’ or ‘criminal intent’.
5. There must be “concurrence’ of mens rea and conduct.
6. There must be a ‘causal relation between the legally prohibited harm
and the voluntary misconduct.
7. There must be legally prescribed ‘punishment’ or threat of
punishment.

​ Criminology
"Criminology" is derived from the Latin crimen, which means accusation, and
the transliterated Greek logia, which has come to denote "the study of,"
therefore the study of crime. The etymology meaning of criminology is, it
stands for study of the nature, extent, causes and control of criminal
behaviour in individual as well as in society. The Oxford hand book of
criminology indicated wide range of activities in which criminology takes an
interest ; the politics of law and order crime data ; violent white collar,
professional and organised crime ; crime prevention,; policing; pre trial
processes; sentencing policies; probation and community sanction; prison;
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race, gender and mental disorder crime victims .

Criminology Reminiscence
Global Scenario
Criminology is the scientific procedure to examine social and individual
deviances from historical point of view. Criminology have been a centre of
attraction not to the person interested in the criminal law but also for the
people coming from various discipline such as psychology, economics political
science etc., starting with demonic (Middle Ages, 1200-1600), criminology, as
a subject, developed through various schools including Classical School (the
late 1700s and the early 1800s), Neo Classical school (emerged between
1880 and 1920 and is still growing), Positivism (From mid – 1800s to early
1900s) and finally the sociological criminology (mid 1800s till present).
Study on criminology has begun in Europe between the late 1700s and the
early 1800’s with the classic school of criminology. Founders of this school like
Cesare Beccaria and Jeremy Bentham were interested in finding right
proportion of punishment against crime. However few revisions to the earlier
thought were brought in Neo Classical School. Neo classical criminologist
argued that people can be led by behaviour, which can be irrational.
The positivist school of thought also contributed for the development of
criminology. Lombroso is a positivist and said to be a father of criminology. As
per this school all people are different physically as well as intellectually and
therefore their punishment should be based on the individual criminal rather
than crime committed by them. Correctional method including treatment and
rehabilitation has their own limitations. And in this type of cases criminal who
cannot be reformed should be hanged.
During 1920’s Robert E Park and Ernest Burgess started a study on
criminology based on ecology and human environment. This study is called as
Chicago school of thought, which was developed and furnished in university
of Chicago. This school has combined criminology and sociology together and
give explanation to crime and criminal behaviour. According to The Chicago
school of thought crimes tend to be taught by older criminals whom people
 may be associated with either personally or professionally. The research of
Henry McKay and Clifford Shaw’s research on juvenile delinquents latter
developed as a new branch of criminology.
Marx’s theory of surplus value indirectly mentions reference to crime
causation. But Marx’s approach towards explaining human conduct in terms
of economics has helped in developing further criminological philosophy. The
economics of criminality has given absolutely new dimension to criminology.
Criminology is a combination of social action data with criminal activity to
understand motive and establish appropriate consequences. Criminology is
necessary for proper development and execution of criminal justice system. It
is necessary for criminologists to understand why the criminal do what they do
so that people will be safer and better understand and justly punished for
crimes. The main intention behind criminology is prevention of crime.
1. Jurisprudence of Criminology
​ The study of crime and crime causation has been the subject matter of
theoretical explanation. Most of the theories of criminology are concerned with
relationship of state with its subjects. Classical school started the idea of
rationalizing punishment. In the beginning it was a challenge to state’s
authority to punish the offenders. But later the philosophical development
including sociological and economic explanation of crime causation is also
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closely related with the original idea of limiting state in its power to punish .

In India jurist like professor Baxi expressed the view for critical examination of
legal system with “right” based approach basically he was of the opinion
humane aspect should be consider in criminal justice system. His idea about
“Right to be Human” in his criminal justice system is an approach towards
modernizing criminal justice system with new alternatives. Similarly, Professor
B.B. Pandey attempted to reform criminal justice system with humanitarian
approach through reforming juvenile delinquency as well as substantive
criminal law.
This approach became part of judicial development in India. Judicial
pronouncements with reference to the rights of accused during arrest
handcuffing, torture, use of third degree in the police custody, custodial
violence, and protection against illegal investigations are examples of this
approach. Supreme Court’s decision related to police reform, jail reform,
 parole orders, probation orders, and various affirmative actions for protecting
rights of victims are also part of this approach.
1. Radical Criminology
​ Critical criminology focusing on criminalization and administrative criminology
focused simply on crime control. Both left the view that realists supported the
view that the post war period had seen increases in the crime rate combined
with greater sensitivity on the part of victims to its effects. Official statistics
showed an increase in the crime rate and fear of crime had increased and
there was a real increase in crime rate.
In Radical Criminology nature and extent of crimes were analysed within the
context of specific capitalist society. Under this school of thought a society
was seen and characterized by inherent class conflict, and other conflictual
division based upon, patriarchy and racism. Crime, law and social control
were to be understood by locating them within material and ideological
contexts. The final goal was transformation of society along ‘socialist line,
individualised, positivist, explanation of criminality were rejected.
1. Neo- Classical Criminology
​ The ‘free will theory of classical school was challenged by many positivists,
classical school had ignored the individual differences and thereby failed to
distinguish between first offender and habitual offender. According to Neo-
classists’ offenders such as minors, idiots, insane or incompetent had to be
treated leniently in the matter of punishment irrespective of the similarity of
their criminal act because these person were incapable of distinguishing
between right and wrong.
Mental depravity approach followed by neo classists was a progressive step.
Neo- classical approach emphasized that mental disorder deprive a person of
his normal capacity to control his conduct and therefore such condition does
not demand for punishment but same is justified for psychopathic offenders.
Neo classists never deviated from defining and criminalizing particular act as
an ‘offence’ or a ‘crime’ for the perspective of the act. As such, but while doing
so, they stress upon mental causation.
Neo classical school of criminology enriched the criminology with an idea that
an individual might commit criminal acts due to certain extenuating
circumstances and such circumstance should be considered while at the time
of awarding punishment and in this way this school provides an alternative
thought to the free will theory of classical school.
The Modern Age View of Crime
The time when Christianity introduced the merits of forgiveness and
compassion, the views toward crime and punishment began to evolve. The
Roman Catholic theologian Thomas Aquinas best expressed these notions in
his treatise “Summa Theologica.” It was believed that God had established a
“Natural Law,” and violation of the natural law is understood as a crime, which
meant that someone who committed a crime had also committed an act which
separated them from God. It began to be understood that crimes hurt not only
the victim but also the criminal. Criminals, while deserving of punishment,
were also to be pitied, as they had placed themselves outside of God’s grace.
Though these ideas were derived from religious studies, these concepts
prevail today in our secular views of crime and punishment.
Modern Criminology and the Secular Society
The kings and queens of those times claimed their totalitarian authority on the
will of God, claiming to have been placed in power by God and therefore
acting within His will. Crimes against persons, property, and state were all
viewed as crimes against God and as sins. Punishment was often swift and
cruel, with little regard for the criminal. Modern-day criminology developed out
of the study of sociology. At its core, modern criminologists seek to learn the
root causes of crime and to determine how best to address it and to prevent it.
Early criminologists advocated a rational approach to dealing with crime,
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pushing against the abuses by governmental authorities .

The Italian writer Cesare Beccaria promote for a fixed scale of crime and
corresponding punishment based on the severity of the crime. He suggested
that the more severe the crime, the more severe the punishment should be.
Beccaria believed that the role of judges should be limited to determining guilt
or innocence, and that they should issue punishments based on the
guidelines set out by the legislatures. Excessive punishments and abusive
judges would be eliminated. Beccaria also believed that preventing crime was
more important than punishing it. Therefore, punishment of crime should
serve to scare others away from committing those crimes. The thought was
that the assurance of quick justice would convince someone otherwise likely
to commit a crime to think first about the potential consequences.
Lombroso believed that criminality was inherited and that criminals could be
identified by physical defects that confirmed them as being atavistic or
savage. A thief, for example, could be identified by his expressive face,
manual dexterity, and small, wandering eyes. Lombroso did not, however,
confine his views to male criminals. According to Lombroso female criminals
were far more ruthless than male; tended to be lustful and immodest; were
shorter and more wrinkled; and had darker hair and smaller skulls than
‘normal’ women.
As a result Lombroso became known as the father of modern criminology.
Lombroso was the first to realise that crime and criminals could be studied
scientifically, Lombroso’s theory of the born criminal dominated thinking about
criminal behaviour in the late 19th and early 20th century. Today,
neuro-criminology draws on some of Lombroso’s theories to explore causes
of criminal behaviour – examining, for example, whether or not brain injuries
or genetic abnormalities can lead to criminality or whether violence can be
caused by a clinical disorder. Recent studies have found that there may be a
genetic origin for violent crime, and that personality traits including criminality
can be deduced from facial features.
Focus on the need for Criminology Study
Criminology is said to be the most dynamic field of study due to its widest
reach and over branching in many other subjects of science and humanities,
Criminologists often examine various questions but three most important
questions related with ‘types of conduct’ which may be condemned ‘types of
condemnation’ which may be more appropriate and ‘types of sanctions’ which
are best suited to prevent such conducts. Prof Sellin says that the object of
the study of criminology is to study the sequence of law making, law
breaking, and reaction to law breaking point of view of the efficacy of law as
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the method of control .

Criminology is an inter-disciplinary field of study, which include behavioural,

social and natural sciences. Sociologists, psychologists’ natural scientists
have contributed through systematic research. This helped in the study of
criminology. Due to dynamic inherent force criminology has itself classified
and distributed its scope amongst many subjects such as penology; the study
of prison, and prison system; bio-criminology, the study of biological basis of
criminal behaviour; feminist criminology, the study of women and crime ; and
Criminalistics, the study of crime detection which is related to forensic
science. With this dynamism, criminology study has its objective not only to
study the forces operating behind the incidence of crime but also variety of
co-related factors influencing the personality of the offenders and examine the
 deeper inside to formulate penal policy. One main goal of the study of
criminology has been the development of theories expressed sufficient
precision that they can be tested using data collected manner that allows
verification and replications.
1. Prevalence of Crime
​ Crime in India has grown in its various facets. Almost every form of violence
including traditional violent crime to modern cyber crime and money
laundering, all such crime has reached the highest level. The data published
by National Crime Record Bureau (NCRB) suggest that the quantum of total
violent crime is continuously increasing from 2008 to 2012.
1. Study of Crime and Criminal Justice
​ In India crime and crime data relating to criminal incidences are recorded by
National Crime Records Bureau (NCRB), an instrument of ministry of Home
Affairs, Government of India. The data collection is at different level , including
violent crime, offences against human body, offences against property
offences against women, rape etc., These are the only data available for the
government for the purpose of any policy formation on penal issues.
1. Identification of causes of crime - theories
​ There are various approaches towards identifying causes of crimes. Causes
of crime have been based on demonological, rationale choice theory,
biological traits, sociological factors, environmental factors and economic
factors. None of these factors may be said to have universal reason behind
crime causation, though one or more of them may be contributing to crime.
1. Approaches to Crime
​ Crime control in India is based on popular perception about the power of
State. State can regulate any given condition with its best armed forces
civilian as well as military. State create a fear for police power, However in the
era of of terrorist activities, where certain group never fear of their death,
whole idea of regulating crime is now shifted towards more humanitarian
approach
1. Focus on Individual and Environment
​ Crime prevention and mechanism for regulating criminal behaviour is now
shifted to environmental factors. Individual behaviour is now treated as only
contributing factor in crime causation. Human environment including family,
 society, social division, caste system, religion, and economic environment
such as poverty, depravity and economic discrimination are the factors which
are seriously examined.

Ingredients of Crime
Criminal guilt or act would attach to a man for violations of Criminal Law.
However, the Latin Maxim ‘actus non facit reum nisi mens sit rea’ i.e. no crime
without a guilty mind. The act should be a wrongful act- ‘actus reus’. A mere
criminal intention not followed by a prohibited act cannot constitute a crime.
Similarly, mere ‘actus reus’ ceases to be a crime as it lacks ‘mens rea’. In
juristic concept , actus reus represents the physical aspect of crime, and
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mens rea, its mental aspect, which must be of the criminal . The criminal act

causes harm to others. The chief elements necessary to constitute a crime

are:
1. A human being under a legal obligation has to act in a particular way
and he is a fit subject for appropriate punishment for his wrongful
acts;
2. An act committed or omitted in furtherance of such an intent (actus
reus);
3. An evil intent on the part of such a human being (mens rea);
4. An injury to another human being or to society at large by such act.
​ Among the elements of crime, actus reus and mens rea are considered as
essential elements of crime.
1. Human Being
​ The act must have been done by a human being before it can constitute a
crime punishable at law. Generally both the wrongdoer and
aggrieved/injured/deceased are human beings. In ancient times, punishment
used to be inflicted on animals or inanimate objects for injury caused by them.
Baring Gould’s ‘Curiosities of Olden Times’ provides “The first time an ass if
found in a cultivated field not belonging to its master, one of its ear is chopped
off. If it commits the same offence again, it loses the second ear”. However,
even the owner of the animal is taken to task for the wrongful acts of his
animal. For example, if an ox gores a man to death, the ox was stoned and
the owner put to death”. With the development of the notion of mens rea as an
essential element of crime, the trial and punishment of animals and inanimate
 objects had to be given up. Therefore only a human being under a legal
obligation can be the subject of criminal law. It means a human being must
have a body. Artificial persons corporations are not capable of being
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punished .

1. Actus Reus (Physical Act or Omission)

​ Penal liability resolves itself into two aspects, the act and the nature of the
mind behind the act. The concept of an “act” needs some careful
consideration. An act is an event which is subject to the control of the human
will.
Firstly, the act may be either positive or negative. A wrong-doer either does
that which he ought not to do or omits to do that which he ought to do.
Secondly, acts may either be internal or external. The former are acts of the
mind, while the later are acts of the body. To think is an internal act, to speak
is an external act. Every external act involves more or less an internal act,
which is related to it, although the converse is not always true.
Thirdly, an act may be intentional or unintentional. An act is said to intended
or intentional, when it is the outcome of a determination of the person’s will
directed to the end. It is intentional, when it is foreseen and desired by the
doer. It is unintentional, when it is not the result of any determination of the will
and when it is not desired. Whether it is an intentional or unintentional act, it
may be internal or it may be external; it may be also positive or negative.
Every act is made up of the following three factors:
1. Its origin in some mental or bodily activity;
2. Its circumstances;
3. Its consequences
​ For example, the act of shooting involves all these factors. Firstly, there is a
physical doing. Secondly, a person is in the range of the revolver, and also the
revolver is loaded. Thirdly, the consequences follow, namely, the trigger falls,
the bullet is discharged, and the bullet enters the body of the victim.
Where the law prohibits an act, it prohibits an act in respect of its origin, its
circumstances and its consequences. Circumstances and consequences may
be relevant or irrelevant. Out of the numerous circumstances and the endless
chain of consequences, the law selects some as material, and they alone
constitute the wrongful act, the rest being irrelevant. For example, in the case
of offence of theft, the time of the day when it is committed is irrelevant;
whereas, in the case of the offence of house-breaking, the hour during which
it is committed becomes relevant in assessing the magnitude of the liability of
the offender. Sec. 456 of the Indian Penal Code considers house-breaking by
night as an aggravated offence, whereas mere house-breaking (i.e., not at
night) is a lesser offence.
Two kinds of wrongful acts
Every wrong is an act which is “mischievous” in the eyes of law. An act may
be mischievous, either in its actual results or in its tendencies. The law might
punish an act because the act involves certain harm. In some cases, the law
might also punish certain acts as those acts involve a mischievous tendency.
In the case of the wrongs of the second kind, no damage must be proved. For
example, in the case of malicious prosecution, damage must be proved.
Criminal wrongs belong to the wrongs of the second kind, and proof of such
act which the law considers to be dangerous in its tendency. But in the case of
civil liability, proof of actual damage is generally necessary, though in some
cases, the commission of the civil wrong exposes the wrong-doer to liability,
even without proof of actual damage.
Mens Rea [Actus non facit reum nisi mens sit rea]
The doctrine of mens rea is expressed in the familiar Latin maxim, “actus non
facit reum nisi mens sit rea’ i.e., the act does not make one guilty unless the
mind is also guilty. For example, a person having a gun in his hand shoots at
a tiger, but kills a man who was concealing himself behind a bush and was not
visible to that person. He could have been held guilty if he knew that a man is
behind the bush or if he had been negligent but in the present example the
person cannot be held guilty because neither he had the knowledge that the
victim was behind the bush nor he was in any way negligent. So a person
cannot be held guilty of an offence if the same could be excusable as an
accident.
The importance of mens rea can be understood when we consider its
application to factual situation. For instance, A slipped as he walked and fell.
As he fell, he lost his balance and pulled down B with him, B hit his head
against the wall, sustained head injury and died. A satisfies one portion of the
definition of crime, which is doing an act which causes death. But still it does
not constitute the offence of murder because another essential element of the
offence of murder i.e., the intention to cause death, is absent. Hence A is not
guilty of murder. Similarly, if a person intends to dishonestly take a movable
 property out of the possession of a person without his consent, it amounts to
theft. But if a person takes a movable property from a person without his
consent, but by mistake, the act does not constitute the offence of theft.
The following acts are considered as offences relating to mens rea under the
IPC:
1. Intentionally joining an unlawful assembly (S.142);
2. Harbouring rioters knowing fully well that they are rioters (S. 157);
3. Fraudulently dishonestly or with intent to injure making a false claim
in a Court (S. 209);
4. Fraudulent use of weighing instrument knowing it to be false (S.264);
5. Uttering words with deliberate intention to wound religious feelings
(S.298).
​ The principle relating to mens rea is well highlighted by Lord Wright in
‘Shenas v. De Rutzen [(1895) IQB 918] thus : “There is a presumption that
mens rea, an evil intention or a knowledge of the wrongfulness of the act, is
an essential ingredient in every offence, but that presumption is liable to be
displaced either by the words of the statute creating the offence or by the
subject-matter with which it deals, and both must be considered.
Mens rea is an essential ingredient in every crime except in the following two
types of offences where the presence of mens rea is not important:
1. The misdemeanours of causing a public nuisance in which a person
may be held liable.
2. The Criminal Contempt of Court.
​ According to Wright, J the mens rea is an essential ingredient in every offence
except in three cases:—
1. Cases which are not criminal but are prohibited in the public interest
under penalty;
2. Public nuisance; and
3. The cases which are in the form of criminal cases but actually are for
enforcing a civil right.
​ Mens rea refers to the mental element necessary for the particular crime.
Mental element may be either intention to do the act or bring about the
consequence or in some crimes recklessness as to that consequence, it
implies a blameworthy condition of mind which involves a knowledge of the
character of the act and foresight of the consequences. Mens rea does not
mean a single precise state of mind but it takes on different colours in different
surroundings. The truth is that there is no single precise state of mind
common to all crimes.
Mens Rea in Indian Law
The term ‘mens rea’ is not mentioned anywhere in the Indian Penal Code.
Though ‘mens rea’ is an essential ingredient of an offence, it is not essential
in respect of certain offences viz waging war (Sec. 121) Sedition (Sec. 124A),
Kidnapping (Sec. 759), abduction (Sec. 363), Counterfeit of coins (Sec. 232)
etc. of Indian Penal Code.
Ratanlal & Dhirajlal observe that the maxim ‘actus non facit reum nisi mens sit
rea’ has no application to the offences under the Penal Code, because the
definitions of various offences contain expressly a proposition as to the state
of mind of the accused.”
According to Mayne, “Under Penal Code a maxim (mens rea) is wholly out of
place. Every offence is defined and the definition states not only what the
accused must have done, but the state of his mind with regard also to the act
when he was doing it. It must have been done ‘knowingly’, ‘voluntarily’,
‘fraudulently’, ‘dishonestly’, or the like...”
Almost all the offences under the IPC are qualified by one or the other words
such as ‘wrongful gain or wrongful loss (S. 23), dishonestly (S. 24),
fraudulently (S. 25), ‘reason to believe (S. 26), criminal knowledge or intention
(S. 35), intentional cooperation (S. 37), voluntarily (S. 39), malignantly (Ss.
153 & 270), wantonly (S. 153), maliciously (Ss. 219 & 220). All these words
indicate the blameworthy mental condition required at the time of commission
of the offence in order to constitute an offence. Thus though the words ‘mens
rea’ as such are nowhere found in the IPC, its essence is reflected in almost
all the provisions of the IPC, 1860. Every offence created under the IPC
virtually imports the idea of criminal intent or mens rea in some form or other.
In State of Gujarat v. D.P. Pandey [AIR 1971 SC 866], the Supreme Court
Observed thus: “The broad principles accepted by Courts in this county as
well as in England are: Where an offence is created by a statute, however
comprehensive and unqualified the language of the statute, it is usually
understood as silently requiring that the element of mens rea should be
imported into the definition of the crimes, unless a contrary intention is
expressed or implied. In other words, the plain words of the general rule of
law that no crime can be committed unless there is mens rea, has not been
 ousted by the particular enactment.”
Difference between knowledge and intention
Knowledge is the awareness, foresight or even the expectation of the
consequence of an act, whereas intention is such foresight coupled with
desire. When the knowledge is so strong that any person with common sense
would consider the result to be the inevitable consequence of the act of the
wrong-doer, the law implies desire, and a such mental condition will be
considered by law to be constructive intention. This is also known as
constructive dolus. The main difference between knowledge and intention is
that in the case of intention, the consequence is desired whereas in the case
of knowledge, the consequence may or may not be desired.
Injury
The last element of crime is injury. Injury means to cause harm to any person
in body, mind, reputation or property. The act by which injury is caused must
be an illegal act. Section 44 of the IPC states : The word ‘injury’ denotes any
harm whatever illegally caused to any person, in body, mind, reputation or
property.
Thus, there are four elements namely,
1. human being,
2. actus reus;
3. mens rea; and
4. injury.
​ However there are some exemptions to this. There are some crimes which
are not accompanied by guilty mind. There are the cases of strict liability such
as an offence of bigamy under Section 494 of the IPC. There are crimes even
though the actus reus has not been constituted. That means cases where no
injury has been caused to any person. These are the cases of inchoate
crimes, for example attempt, abetment and conspiracy. There may be a crime
where there is neither actus reus nor injury to a human being for example the
offences of making preparation to commit dacoity under Section 399 and
assembling for the purpose of committing dacoity under Section 402 of the
IPC.

Classification of Crime
Crimes can be classified in many ways such as:
1. Crime against body
 2. Crime against property
3. Crime against public order
4. Economic Crimes
5. Crime against women
6. Crime against children
7. Cyber crime
8. Crimes in Railway
9. Other IPC Crimes
​ A crime like assault, battery, or rape tends to injure another person’s body, so
it can be classified as a “crime against the person.” If a crime tends to injure a
person by depriving him or her of property or by damaging property, it can be
classified as a “crime against property.”

The Development of Criminal Law

Criminal Justice in the Mughal Period
The criminal law system was not particularly viewed as a different branch of
the legal system and was not separated as such till recently. It was only after
the advent of Muslim rule in India in the late 11th century and the
establishment of the Mughal Empire that criminal justice took crude form.
Muslim law was applied by the Mughals for the administration of criminal
justice and managed to establish a well-established system in the regions of
Bengal, Bihar and Orissa.
A brief introduction of the Muslim Law in India:
The original Muslim law generally classifies criminal acts into three broad
categories. They include:

1. Crimes against God

​ Crimes against God are generally those crimes that are strictly prohibited in
the Quran and they include apostasy, drinking, intoxicants, adultery.

1. Crimes against the sovereign

​ Crimes against the sovereign are crimes which are viewed with less severity
in the Quran like theft, robbery or murder. These crimes are almost as the
previous category and the punishments are as grave as possible.

1. Crime against private individual

​ They are specifically those crime committed against the human body like
maiming or causing grievous hurt. Accordingly, the Muslim law along with the
classification also prescribes punishments for these crimes.
There are four kinds of punishments which are used in this law.

1. Kisa or Retaliation
2. Diya or Blood Money
3. Hadd or limits
4. Tazeer or Discretionary

​ Criminal law in the Madras Province

The Muslim law of crimes was operative in the mouffisil of the
MadrasPresidency and it suffered with the same weaknesses in Bengal
before 1790. These defects were removed by legislation which followed
practically the same course as in Bengal. The reforms in the criminal law
introduced in Bengal by Cornwallis during 1790 to 1793 and which were
consolidated in Regulation IX of 1793 were introduced in Madras through
Regulations VII and VIII of 1802. Regulation XV of 1803 made provisions,
practically on the same lines as the Bengal Regulation LIII of the same year,
regarding the doctrine of “Tazeer” and also for various types of robberies,
especially those committed with open violence attended with murder or other
physical injuries. Regulation VI of 1811 provided for more effectual
punishment of perjury and forgery were punishable in the discretion of the
judge by beating, Imprisonment and public ignominy. The persons convicted
of these offences were committed to various but inadequate punishments, to
define the punishments for these offences, Regulation VI was passed.
Regulation I of 1818 made murder committed accidentally in execution of an
unlawful intention punishable with death. Regulation I of 1822 made provision
for the more exemplary punishment of robbery by open violence. Regulation I
of 1825 while making a number of modifications in the criminal law also made
evidence of a non- Muslim against Muslim admissible in criminal trials.
Regulation X of 1827 introduced trial by jury in the Province of Madras.
Regulation I of 1830 abolished the practice of sati. Regulation XX of 1802,
while making provision for the trial of those who were regarded as guilty of
these offences, failed to declare the punishment to which person held guilty
were to be subject. To maintain the just authority of the government,
Regulation I of 1834 prescribe the penalty of death for such offences. By the
Act I of 1840, The Fodder Adalat was relieved from the obligation to take a
fatwa from its law officers. The reason to dispense with the fatwa were that
the greater part of the existing criminal law was to be found in the Madras
Code of Regulations and the rest could be ascertained from the precedents of
the Courts. The Judges could therefore, competently administer criminal law
without the aid of those officers.
Criminal law in the Bombay Province
In the matter of criminal law, the position of the Bombay Province was quiet
different from that of the Bengal and Madras provinces. In the mouffisils of
Bombay Presidency, the Muslim law of crime was not the general law and
was not as well entrenched as it had been in the moufissils of Bengal or
Madras. The Reason for this was that the large tract of territories which came
to constitute the Bombay Province had never been under the Muslim Rule.
Therefore, the British Administrators, instead of enforcing the Muslim law of
crimes uniformly to all as the general law of the land, adopted the expedient of
administering personal law of crimes. The Scheme was laid down in section
36 of Regulation V of 1799. In the course of time, the frontier of the Bombay
Province expanded considerably with the annexation of the Maratha Territory.
Mountstuart Elphinstone, the governor of Bombay was convinced of the need
for a better and more uniform system of civil as well as criminal law,
throughout his province and in 1827 his government enacted a series of
regulations known as the Elphinstone code. Regulation XIV in the code
contained the criminal law to be applied in the company's courts in the
mofussil of the Bombay Presidency. The Regulation had only 41 sections and
defined and classified the acts and omissions which constituted punishable
offences along with the scale of punishment for each offence. It applied to
everyone who was not a British subject. The fact remains that the regulation
was neither logical, nor analytical, nor systematic. Many Important classes of
offences were altogether unnoticed by the regulation. The only merit of the
Regulation was that it was the First Attempt to Codify and digest Criminal law
in India.
The effect of English Law in India
In spite of all the efforts by the British authorities to improve the legal system,
the instability between the colonial public and the native private was clearly
exposed during the long-running debates about uniform criminal procedure.
The governments repeated efforts to appease the non-official community by
securing inequality. Under the law indicate that a rule of law, initially conceived
of as a tool to control the influx of unwieldy elements of British society in India,
became increasingly connected to the political stability and economic
prosperity of the empire, and not to the abstract principles of equality and
uniformity.
The Modern Criminal System
At present the most important criminal laws used in India are the Indian Penal
Code, The Criminal Procedure Code and the Indian Evidence Act. The Indian
Penal Code contains 511 Sections covering various aspects of criminal law
including specific crimes like dowry. The Criminal Procedure Code was
enacted in 1973 and came into force on 1st April 1974. The Code of Criminal
Procedure (CrPC ) is the main legislation on procedure for administration of
substantive criminal law in India, contains 484 Sections 2 Schedules and 56
Forms and defines the legal professor adjudicating claims of violation of
criminal law. The Indian Evidence Act of 1872 which originally contained 167
sections contains rules and allied issues governing admissibility of any
evidence in the court of law. Codified laws like this build a firm foundation and
help in the administration of good criminal justice.
Besides these major acts, special Criminal Laws are also passed by the
Indian Parliament i.e. NDPS, Prevention of Corruption Act, Food Adulteration
Act, Dowry Prevention Act, the Defence of India Act, etc. thousands of minor
11
laws are made in India .

Sources of Crime Data

There are two databases that are consolidated by two different agencies in
the government that are used to understand crime data with respect to
communal incidents in India. One is the Ministry of Home Affairs database
(MHA) and the other is the National Crime Record Bureau (NCRB), a wing
within the MHA that maintains its own database about crimes, criminals and
law enforcement nationally.
MHA collects its communal incidents data from the states. Every year, the
NCRB also collects data from the State Crime Records Bureau of the State
Government and compiles it into a Crime in India Report. The data is
collected with the help of a standard template. The report has detailed
information on various types of crimes. The Bureau follows the ‘Principle
Offence Rule’ for counting crime. Hence, among many registered offences in
a single case, only the most heinous crime is considered as a counting unit in
 its data.
For example, in the case of Mohammad Akhlaq being lynched by a mob in
December, 2015 – the FIR states that all the accused have been booked
under the following sections of the Indian Penal Code (IPC).

1. IPC Section 147 – Rioting

2. IPC Section 148 – Rioting Armed With Deadly Weapon
3. IPC Section 149 – Unlawful Assembly
4. IPC Section 302 – Murder
5. IPC Section 307 – Attempt To Murder
6. IPC Section 458 – House Trespassing Or House Breaking
7. IPC Section 504 – Intentional Assault With Intent To Breach peace

​ Whether the state government has some system to report the above as a
communal incident is not known. Hence the MHA data might or might not
have included this crime. In the case of NCRB, only section 302 – Murder
would be counted for data collection because it follows a principle offence rule
by considering only the most heinous crime.
Important details that give context and help define the nature of crime like
rioting with deadly weapon and unlawful assembly of people in large numbers
to kill will be automatically eliminated and will not be part of the data. Same
would be the case of lynching of a Police Officer in Jammu & Kashmir.
Since the basis of both the databases is not uniform and very different, every
year, there is a difference in number of crimes that the MHA and the NCRB
report. The figures for communal incidents in the past three years are
indicated below will help understand it better. It is not just the difference in
numbers at a national level; there is no uniform pattern in the number of
incidents in different states as well.

Crime Reporting
Efficient way of reporting crime is a very important factor in Crime
investigation. Till present, crime reporting system in India is either online FIR
system or manual reporting in Police stations. If any incident happens in any
area, then crime reporting can be done via telephone or in person. No actual
scene reporting is possible till date. People should be able to seek help in
case of emergency on time. A large number of incidents happen in front of
people but people are unable to report those incidents to police immediately.
India must focus on inculcating an automated system for immediate crime
reporting to police surpassing all controllable and uncontrollable factors
responsible for unreported crimes.
According to the current law, information relating to an offence has to be given
orally to an officer in charge at the police station, who shall put it in writing as
a First Information Report (FIR) and register a case if he deems fit. In some
cases, a police officer has right to conduct a preliminary enquiry before
registering a case. This system is largely abused and manipulated to avoid
registering cases and intimidate and harass victims who want to set the
criminal law in motion. Some officers might not be inclined to register the case
because they might not see any personal benefit – monetary or otherwise. In
certain instances, the police stations might be over burdened with existing
investigations and feel that the case might not come to closure. As a result,
crimes tend be under reported and not investigated at all.
Currently, the data is recorded by the states and then reported to the Central
government – Ministry of Home Affairs (MHA.) The National Crime Records
Bureau (NCRB) collects data from the State Crime Records Bureau, which is
again a state government agency. Data is being under reported at the central
level. Creating centralized online data systems that register and store data at
the state level but automatically accessible at the center might be an efficient
way to reform the existing system. This will reduce time and eliminate
discrepancies. The Crime and Criminal Tracking Network & Systems
(CCTNS) may be a step in that direction.

Uses of Crime Data

In general, the uses of existing crime data include operational and resource
allocation decisions by law enforcement, local and state government
agencies, and businesses and other groups. Crime data are also a critical
source of information for program and policy evaluations by researchers in
government, academia, and the public and private sectors. They are also
used by advocates of particular issues and by the public, and are often seen
as measures of accountability. For some of these purposes, existing crime
data appear to be adequate, though users often noted many ways that the
available data could be suggested.

Schools of Criminology
Pre - Classical School
Pre eighteenth century idea of crime causation was based on spiritual
explanation of crime. St. Thomas Aquinas (1225-1274) was of the opinion that
there was God Given ‘natural law’ exposed by observing through the eyes of
faith, that natural tendency of a man is to do ‘good’ rather than evil. If
someone violates the natural tendency of being man and goes against the
nature then he actually commits a ‘sin’ and since committing crime was
declared as a ‘sin’, State claimed ‘moral authority’ to banish the same by
horrible and gruesome torture against such sinner/ offender. And while doing
so state was putting itself as a representative of God, fulfilling ‘divine will’.
In the later period Hobbs Locke, Rousseau and Voltaire have presented their
social contract theory in which they presented the naturalistic argument that
people always pursue their own interest without caring about others. In the
situation of war against all they suggested theory of social contract whereby
they tried to explain existence of State as a social contract. In which individual
surrender some liberties so that State may regulate their interest and
establish peace and security in the society. As per this theory an individual
was explained as rational person having full wisdom as to decide his /her
action. Therefore, the classical ‘social contract theory has substituted the
naturalist argument to describe individual and his action rather than the
12
spiritual argument .

Classical School
During the18th century intellectual development and the existing spiritual
repressions by church resulted into two opposite psychological states of mind
that is hope and fear. This contrasting hope and fear resulted into exploring an
alternative thinking regarding human future. This was the time when there
was imminent fear of the breakdown of society due to rising modernism,
intellectualism, individuality and the fear about the mob, the ragged poverty-
stricken mass of humanity. There was fear that God was slowly dying, and in
the absence of God there will only be the mass of individuals and their
capacities that is reason experience, and human ability to interact with nature.
English social theorist like Thomas Hobbes linked fear and knowledge to
construct a new imperative of human endeavor. His argument based on
intellectual demand, which give us real knowledge of human condition so that
we can create a device to provide social stability. In the answer to this fear
reflected in the alternative idea that is it must be the “‘will of all” which must
command the other. The law must be the instrument to regulate various types
of interest. When it comes to choose between authority and radical
 democracy’ or totalitarianism and radical democracy or command of
sovereign versus law as the expression of the will of the people it was the
13
alternative that is will of all, which was accepted as a future course .

Under this theory human behaviour including criminal behaviour is conceived

as ‘self controlled’, ‘self generated’ and self directed. Thus, being person
centric such behavior must be changed by the way of external instruments.
Such as fear of punishment. The fear of punishment will bring change in
human will and thus a change in behaviour.
According to Beccaria the function of legal punishment is to ensure the
continued existence of society as idealized as reflected in social contract
theory. Beccaria believes that crime is inherent in every society and
punishment is inevitable. But the punishment should be proportional to the
degree of crime violates the sanctity of property, personal well-being, and the
welfare of the state. Punishment in excess of this accord is illegitimate and
contrary to the social contract.
According to Taylor Beccaria has used social contract theory for the purpose
of theorizing his idea of ‘social contract’. Social contract theory set the limits
of:
1. The manner in which state should react to the criminal
2. In the case of deviation, it prescribes labeling of such acts against
those deviation
3. Social basis of criminal law
​ n important contradiction in social contract theory was that on one hand it was
A
talked about men being ‘rationale’ and ‘equal in the eyes of law’ on the other they
always fighting with each other due to their passion of an unthinking self interest.
While, the classical School emphasizes the idea of ‘freewill’ and as method of
reducing criminality suggests instrument of ‘punishment’ for diverting his ‘free will’.
Many States started enhancing punishment for regulating the growing rate of crime.
Even though a punishment has been enhanced States fails in regulating deviant
behaviour and social restlessness which resulted into a new pattern of explaining
crime causation. This resulted into practice of identifying man with the rest of
biological life in nature and accordingly man and his criminal behaviour was tried to
be examined in terms of physiology, anatomy, medicine, psychiatry, and to some
extend psychology. This process resulted into positivist school of criminology.
Neo-Classical School
The ‘free will theory of classical school was challenged by many positivists, classical
school had ignored the individual differences and thereby failed to distinguish
between first offender and habitual offender. According to Neo- classists’ offenders
such as minors, idiots, insane or incompetent had to be treated leniently in the
matter of punishment irrespective of the similarity of their criminal act because these
person were incapable of distinguish between right and wrong.
This tendency of neo-classists to distinguish criminals according to mental depravity
was altogether a different approach and a new trend in examine the criminals it was
not only a progressive step but also helped in developing the alternative theory for
explaining the juvenile delinquency etc., Neo- classical approach emphasized that
mental disorder deprive a person of his normal capacity to control his conduct and
therefore such condition does not demand for punishment but same is justified for
psychopathic offenders. Neo classists never deviated from defining and criminalizing
particular act as an ‘offence’ or a ‘crime’ for the perspective of the act. As such, but
while doing so, they stress upon mental causation.
Neo classical school of criminology enriched the criminology with an idea that an
individual might commit criminal acts due to certain extenuating circumstances and
such circumstance should be considered while at the time of awarding punishment
and in this way this school provides an alternative thought to the free will theory of
classical school. Neo classists have examined causation limited to psychopathy or
psychology, but later on positivists put serious attempts to examine variety of
environmental factors.
The main dispute against neo- classical theory is about its belief that the criminal,
whether responsible or irresponsible, is a threat to society, and therefore, needs to
be eliminated from it.
Positivists School
Positivists’ school has its significance in the ‘shift’ in emphasis from attention to self-
motivated, self directed behaviour to an attempt to find differentiating characteristic’
that would mark off the criminal from non criminal. Positivists searched four ‘Criminal
types’ whereas, physical criminal type, mental type, psychopath, and socio economic
disadvantaged type. Positive school with its dominated American criminological
thinking finds supporters in biology, psychiatry, psychology, social work, sociology,
and anthropology each of whom applies concepts of his science to the study of the
criminal.
Most of the theorists of positive school oriented their study towards, an interest in
individual offenders, his personality, body building, intelligence, family background,
the neighborhood, from which he comes or the group to which he belongs. The
criminologist looks for the etiology of crime in behavior systems rather than in legal
system.
Clinical School
The theory of Modern Clinical School presupposes offender as a product of his
biological inheritance conditioned in his development by experiences of life to which
he has been exposed from childhood up to the time of the commission of crime.
Clinical School takes into account variety of factors for explaining crime causation.
According the Clinical School criminals who do not respond favorably to correctional
methods must be punished with imprisonment or transportation for life while those
who respond favorably and merely a victim of social condition should be subjected to
correctional methods such as probation, parole, reformatories, open air camps, etc.
The main theme of Clinical School is that the personality of a man is a combination
of internal and external factor and therefore punishment should be depend upon
personality of the accused. This is known as correctional trend of reformation
through individualization.
Sociological School
Sociological School follows two different approaches towards examining sociological
perspectives of crime and crime causation. Criminal behaviors are explained either
in terms of social structure or the organisation of society or the environmental factors
facilitating criminal causation. Under this approach individual characteristics are not
examined. Thus, social structural approach does not explain crimes in terms of the
process by which individuals turn to crime. Other sociological perspective, wherein
process of learning criminal behavior is involved explain crime learning process
through various theories such as Ecological theory, subculture theory, routine activity
theory, conflict perspective, learning theory, control theory, social learning theory,
14
labeling theory, and integrated theory .

Sr. Details
N
o.

1 Ahamed Siddique-Criminology Problems and Perspectives

2 Dr. M. Ponnian-Criminology and Prnology

3 Dr. Rajendra K. Sharma-Criminology and Penology

4 Dr. Sirohi-Criminology

5 Paranjape-Criminology

6 Bames and Teeters-New Horizons of Crminology

 7 Sutherland-Criminology

8 Taft and England-Criminology

9 Siegel-Criminology

1. R.C.Nigam , Law of Crimes in India (Vol I) (1965) Asia Publishing

House
2. Supra N1
3. Girjesh Shukla, “Criminology: Crime causation , sentencing and
Rehabilitation of victims” , Lexis Nexis 2013
4. Supra N3
5. Ahmad Siddique, Criminology-Problems and Perspectives, Eastern
Book Company.
6. K.D.Gaur, Crime Aims and Objects in Criminal Law and Criminology,
Deep & Deep Publications, New Delhi
7. Justice Krishna Iyer, Perspectives in Criminology - Law and Social
Change, 1980
8. Edwin H. Sutherland, Principles of Criminology.
9. H.S.Gaur, The Penal Laws Of India, Vol. I , 2000.
10. J.S. Sarkar , I. P.C. 1 8 6 0, Kamal Law House.
11. P.Kamalakara Rao, “Professional Crime in India”, Cosmo Publication
12. Supra N3
13. Supra N3
14. Supra N3
​ Unit II - Crime Causation

Course Outline of Unit II: Crime Causation

This Unit contains discussion on following topics :

Individual Centric Causes - Societal Centric Causes - Theories on Crime

Causation - Juvenile Delinquency - Legislation - Juvenile Justice (Care
and Protection of Children) Act, 2000 - Statutory Bodies and Procedure -
Reformative Institutions under the Act - Rehabilitation Process - Case
Law.

​
Disclaimer: This subject content as provided under AIR Online Education
Support Suite is only Study (Reference) Material for supplementing your
Academic Classroom (Text Book) Learning. These are not Text Books on the
Law Subjects.

Introduction
Crime is an aspect of life that all citizens must deal with as it seems to have
been around as long as civilization itself. Crime has ravished communities for
centuries and one assertion is that crime is more prevalent in poor inner-city
neighborhoods than it is in equivalents that are more affluent. Finding the root
source of this plague has been on the minds of criminologists and others for
centuries. This is because the control, reduction, and prevention of crime has
been a major problem in our society and many others. There have been many
different angles that have been studied as the potential cause of crime.
Currently, the three major aspects include a lack of education, living in
poverty, and being raised in a single parent home. Each of these perspectives
1
offer insight to crime’s true cause .

Crime is a social phenomena with ethical, legal and psychological

parameters. So multitudinous criminogenic causes are attributed to the
incidence of crime . The criminogenic causes can be mainly divided into two
forms:

1. Individual centric causes and

 2. Society centric causes.

​ Individual centric causes are intelligence, heredity, chromosomes, endocrine

disorders, sex, age, alcoholism, drugs, psychological conditions and ecology.
Society centric causes include social disorganisation, mobility, anomie
(normalessness), labelling, family, group, religion, education, mass media,
economic factors and political factors.
All these causes can be responsible for criminal behaviour individually or
taken together. Legally speaking, a criminal is one who is convicted by a court
for violating the law of the land. A person who is arrested by the police but is
let off by the Court cannot be designated as a criminal i.e. technically the term
criminal cannot be applied to one who has not been convicted of a crime.
Systematic study of crime causation is of rather recent origin. During the
medieval and early modem periods many explanations of crime were stated
and accepted. Probably the principle explanation during the time was that
crime was due to innate depravity and the instigation of the devil. Today of
course this view point is considered unscientific and outdated.
Theories of Crime Causation
1. Genetic / Biological Theory of crime causation
​ Biological theories of crime causation are based on the assumption that the
crime is inherited, and offenders differ from non- offenders in physiological
way. Biological explanation for crime causation theory can be subdivided into
1. Born criminal theory of Cesare Lambroso
2. Psychological theory of Sigmund Freud
3. Psychopathology
​ Born criminal theory of Cesare Lambroso
Born criminal theory was propounded by Lombroso, criminals are atavists or
throwback to more primitive beings. They could be recognised by a series of
external features including receding foreheads, development of their jaws,
large or handle shaped ears etc. These external features were attached with
their personality type laziness, moral insensitivity, and absence of guilt
feelings respectively. It is not that Lombroso restricts himself to biological
traits but in his later research he also recognises the role of social factors in
the crime causation.
Follower of Lombroso continued searching biological or genetic reasons for
crime causation. Study like identical twin was conducted assuming that
 genetics determine criminality, when one twin is criminal the other will also be
criminal.
In research conducted by Richard Dugdale he demonstrates that over
generation Jukes family had been characterized by criminality. Though he
believed that crime and heredity were related but his own admission that over
the years the family had established a reputation for deviant behaviour points
to the possibility that other factors such as, learning and labeling might be of
equal or greater importance in explaining his observations.
In recent studies with mixing the biological and social factor, it was observed
that relationship among genetics, the environment, and delinquency have
close relationship. In 1939 Ernest Hooton wrote of the consequences of
biological causes of crime for rehabilitation and control of offenders.
According to Hooton if criminality is inherited, the solution to crime lie in
isolation and /or sterilization and exterminated of offenders to prevent them
from remaining active on the genetic pool of a society. Recent developments
that have made it possible to create human genetic blue prints, hailed as one
of the greatest scientific contribution of the 21st century, make it likely that if
there is a genetic link to crime, it will be discovered.

1. Psychological Approach
​ Human brain is often held responsible for abnormal behaviour including crime.
And with this assumption various psychological theories of delinquency were
propounded supporting the view that individual commit crime due to lack of
intelligence and/or personality disturbances.Psychological school was
convinced about biological factors.Sigmund Freud who is regarded as a father
of psychoanalytic approach in explaining behaviour believes in the technique
of introspection. Freud divided personality into three components: the id, ego
and super ego. The function of id is to provide for the discharge of energy that
permits individual to seek pleasure and reduce tension. The ego controls and
governs the id. And the super ego is equated with the concept of conscience.
Both ego and super ego are thought to develop out of the individual’s
interaction with his or her environment.

1. Psychopathology
​ Psychopath is the most commonly used term to describe certain types of
criminals and delinquents. This term is used to describe aggressive criminals
who act impulsively with no apparent reason. Various attempts have been
 made to clarify the concept of psychopathology but such attempts have
helped in understanding relations between psychopathology and criminality.
Gough conceptualized psychopathy as inability to take role of other and the
scale he developed to measure the role taking ability scored lower for
offenders than non offenders. Additional attempts to explore relationship
between psychopathology and delinquency include those by Ireland, Smith
and Thornberry who focus on the theory of development psychopathology.
The basis of this theory is that development is age- graded and hierarchical in
nature.
1. Sociological Theory of Crime Causation
​ Sociological theories relating to crime causation deals with different external
factors, like some theories deals with social class and/or family differences,
some deals with blocked educational and occupational goal, some deals with
effect of official labeling. However most of theories believe that delinquent
behaviour are the product of social interaction rather than results of heredity
or personality disturbance. Thus they predict and explain criminality in social
2
context .

1. Anomie and Strain Theory

​ Anomie theory of Durkheim’s is a breakdown of social norms or the
disassociation of the individual from a general sense of morality of the times,
led Merton to focus on the discrepancy between societal goals and the
legitimate means of attaining those goals. Merton examines the mismatch
between social and individual goals,he expressed that strain is placed on
those who wish to pursue societal goals but lack the legitimate means of
doing it. Merton advised that people try to adapt to this strain, and while doing
so they tend towards criminality. Cohen applied the same ‘strain theory’ to
explain juvenile gangs.
Sykes and Matza rejected the idea of firm commitment to subculture values
as necessarily a precursor of delinquent behaviour, as argued by Cohen,
Miller and others. In 1985 Agnew revised strain theory and promoted three
type of strain which led into criminality.
Firstly the individual’s failure to achieve goals, Secondly loss of a source of
stability. E.g., death of loved one;thirdly when individual if confronted by
negative stimuli. E.g., lack of success. He expressed that criminal
victimization is due to consequential strain experienced by adolescents and
 therefore might be cause of delinquency. However he examined how specific
form of strain including emotional abuse, physical abuse, sexual abuse,
homelessness, being a victim of robbery, being a victim of violence, being a
victim of theft, relative deprivation, monetary dissatisfaction and
unemployment are related to crime and drug use.He concluded that all types
of strain examined by him lead to criminal behaviour either as main factor or
interacting with conditioning variable.
There is numerous criticism of strain /anomie theory. It tends to focus almost
exclusive on lower- class delinquency.
1. The Ecological/ Social Disorganization Approach
​ This approach focuses on the geographical distribution of delinquency. Shaw
and Mckay(1942) and later others, found that crime and delinquency rates
were not distributed equally within cities. According to Wilks (1967), to predict
delinquency using ecological/social disorganization approach, it is necessary
to be aware of the existing social, structure, social processes and population
composition, as well as the area’s position within large urban societal complex
because these variables affects the distribution of delinquency. The
ecological/social disorganization approach to explaining delinquency has
been challenged on the ground that using only one variable to explain
delinquency is not likely to lead to success. However ‘group crime rates’ does
not tell that a particular individual is likely to become involved in crime. Apart
from this criticism it was concluded that the early development of the
interactionist perspective, control theory, and conflict theory all are reflected in
this group crime approach.
1. Edwin Sutherland’s Differential- Association Theory
​ Sutherland’s differential association theory combines some of the principles of
learning theory with a notion that learning takes place in interaction within
social group. This learning primarily happen in family or gang, individuals
learn how to define different situations as appropriate for law- violating
behaviour where the balance of definition is favorable to law- violating
behaviour he is more likely to commit crime.
Sutherland approach discussed both deviant and normal social behaviour as
learned phenomena and indicates that primary group is crucial in learning
process. Sutherland suggested that it is not differential association with
criminal and non criminal type that determines the individual behaviour but
rather it is differential association with definitions favorable or unfavorable to
 law violating behaviour.
Glaser made an attempt to improve the Sutherland theory, and referred this
theory as differential anticipation. Differential anticipation theory explains that
expectations determine conduct and expectations are determined by social
bond, differential learning, and perceived opportunities. Burgess and Akers
also expanded on leaning theory approach developing the differential
association and differential reinforcement. These theories are diverse as they
extend Sutherland while be compatible with most of the approaches.
1. Labeling Theory
​ This theory suggests that though many individual commit deviant act, but only
some are dealt with officially. The reason behind selective labeling is due to
the time at which it occur or the place where it occur or the people who
observe the act etc., these all factor play crucial role in determining whether or
not official action will be taken. According to labeling theorists society’s
reaction to deviant behaviour is crucially important.Once official action has
been taken against individual’s deviant behaviour the alleged deviant is first,
arrested or taken into custody, second, individual is confronted generally at
trial or hearing, third the verdict or decision is rendered against deviant
individual, and finally the individual is imprisoned or committed to an institution
or put back to society on probation. The result is that the individual is officially
labeled as deviant.
One of the consequences of labeling in our society is that once labeled, the
individual may never be able to redeem him or herself in the eyes of society. It
is more difficult for the rehabilitated deviant to succeed in the larger society
and there are greater chances that he or she will return to old associates and
old ways. It is because of this that labeling individualis forced to continue
his/her career in deviance.
The labeling theory accurately describes how individuals become labeled, and
why some maintain deviant careers, and some of the possible consequences
of labeling. Through this approach, deviance is viewed as a product of social
interaction in which the actions of both the deviant and his or her audience
must be considered.
1. Economics and Crime Causation

2. Conflict Theory
​ Chambliss described conflict theories of crime as focusing on whole political
and economic systems and on class relations in those systems. According to
conflict theorists conflict is inherent in all societies and focus on conflict
resulting from gender, race, ethnicity, power, and other relationships. Conflicts
results from competition for power and those who are successful in this
competition define criminality at any given time. Therefore, criminal behaviour
is viewed not as universal or inherent but as situational and definitional. This
view does not account for individual acts of criminality occurring outside the
group context but it serves as alert to the social factors that may be related to
criminality.
Marxist approach
Marxist Approach to criminology and delinquency finds the causes of such
phenomena in the suppression of lower social class by Ruling class. It means
laws are passed and enforced by those who monopolize the power against
those who are powerless. Many supporter of this approach assumed the root
cause, to be inherent in the social structure of capitalistic societies. Labeling
the dissatisfied as criminal and delinquent allow the ruling class to call on law
enforcement officials to deal with such individual without needing to grant
legitimacy to their dissatisfaction. These are some of the essential elements of
most radical or critical explanations of delinquency and crime.

1. Radical Criminology

​ Relative criminology became popular in the United State during 1970’s and
1980’s; popularity of this criminality has been declined over the years.
Delinquency appears to be rather uniformly distributed across social classes,
contrary to the teaching of Marxist approach.Additionally this approach fails to
recognize that the legal order serves the purpose of maintaining the system in
all known types of societies.

1. Feminist

​ Feminism approach is studying crime and delinquency focusing on women’s

experiences typically in the area of victimization, gender difference in crime,
differential treatment of women by justice network.Traditionally criminology
has largely ignored female crime, concerning that whether the theories of
crime can directly apply to women. There are clearly differences in nature and
extent of crime by gender. But there is a question whether or not these
 theories can explain the difference and the question is still remained the same
because of very less support for this approach.

1. Control Theories

​ Control Theories assume that all of us must be held in check or “controlled” if

we want to oppose to committing delinquent and criminal acts. The types of
systems used to control or check delinquent behaviour fall into two category;
Personal and Social .The containment theory of Reckless, emphasize on both
inner control and external pressures on self concept. A poor self-concept is
thought to increase the chances that a juvenile will turn to delinquency; a
positive self conceptis seen as insulating the juvenile from delinquent
activities. Negative self-concepts and low self-esteem have also been
frequently noted as characteristics of those who abuse or neglect children .
In 1990, Hirschi collaborated with Michael Gottfredson to develop a “general
theory of crime”. In which they sought to examine crime conduct in context of
deviant behaviour. In general they viewed crime as low self control that results
in desire of immediate gratification. This theory has been criticized on several
grounds but, has provoked a good deal of empirical research. Church
Wharton and Taylor investigated family stressors, family cohesion and non
familiar relationship in an assessment of differential association and control
theories and found that only family stressors had direct effect on delinquency.
They also found that being male was the strongest predictor of delinquency.
These finding supports the control theory.

1. Integrated Theories

​ Various attempts have been made to integrate two or more theory to provide
more comprehensive explanation of criminal and delinquent behaviour. Some
theories of more prominent attempts are Developmental and life course theory
. This theory attempts to explain how anti social behaviour develops, how
different risk factors exist at different stages of life, and the differential effects
of life events on antisocial behaviour. Moffitt developed a life course-
persistent/ adolescence limited theory that attempts to explain anti social
behaviour using biological, psychological, and sociological approaches.
According to Hagan and Parker life course capitalization theory proposes that
low intergenerational educational aspirations and educational
underachievement is disadvantageous to adolescents and that subsequent
adult and parenting problems may well result from this disadvantage.
Interactional theory represents an attempt to combine social learning, social
3
bonding and social structural theories . This theory holds that,like all other

human social behaviour, delinquency is the result of interactions among

individuals and is the result of learning and exchanges that occur in such
interactions. Hayes notes that labeling, differential association, social learning,
and social control theory, all provide useful information in the delinquency
process. The author concluded that these findings support the use of
integrated theory in the study of juvenile delinquency. This integrated theories
is important because all criminological theories have implications for criminal
justice policy and practice.

Juvenile Justice
The future of the nation lies in the hands of the Children, who have been
recognized as the supremely assets of the nation but because of the
indifferences of our society in all spheres, these future stake holders are not
brought up properly which leads to child delinquency. Child or juvenile
delinquency is an alarmingly increasing problem causing a source of concern
in all over the world. Children ought to have been the subject of prime focus of
development planning, research, and welfare in India but unfortunately, it has
not been so. Despite the Constitutional vision of a healthy and happy child
protected against abuse and exploitation, and a National Policy for Children,
the majority of children in India continue to live without a cared, protected and
4
meaningful childhood .

History of Child Delinquency in India

The first legislation on juvenile justice in India came in 1850 with the
Apprentice Act which required that children between the ages of 10-18
convicted in courts to be provided vocational training as part of their
rehabilitation process. This act was transplanted by the Reformatory Schools
Act, 1897, the Indian Jail Committee and later the Children Act of 1960. The
first proper intervention by the government of India in justice for children was
via the National Children’s Act, 1960 . This act was replaced later with
Juvenile Justice Act, 1986. In 1992, India ratified the United Nations
Convention on the Rights of the Child (UNCRC). To adapt to the standards of
the convention, the 1986 act was repealed and the JJ Act, 2000 was passed.
The JJ Act 2000 dealt with two categories of children viz. ‘child in conflict with
law’ and ‘child in need of care and protection' .The said act came to be
amended from time to time to incorporate new provisions and concepts
relating to a child.
It was the need of the time to re-enact the Juvenile Justice Act, 2000 taking
into consideration various international conventions. The concept of juvenile in
India, until passing of Children Act, 1960 there was no uniformity regarding
age limitation of juvenile delinquent. Bombay Children Act 1948, Haryana
Children Act defined “Child” to mean a boy who has not attained the age of
sixteen years or girl who has not attained age of eighteen years.
The U.P Children Act and The East Punjab Act, Andhra Pradesh (Telangana
Area) Children Act defined “Child” as a person under age of sixteen years.
Under A.P. Children Act 1920 “child” means a person under 14 years. The
Saurashtra & West Bengal defines a “child” a person who has not attained the
age of eighteen years. Juvenile Justice Act, 1986 defined a juvenile or child to
be a person who in case of a boy has not completed age of 16 years and in
case of a girl 18 years of age. The JJ Act, 1986 was repealed by 2000 Act
and the distinction with regard to age between male and female juveniles has
been done away with by the Government of India in performance of its
obligation to the international obligations. Now age of juvenile in conflict with
law for male and female has been fixed at 18 years.

The Juvenile Justice Act 2000

The Juvenile Justice Act 2000 is an act to consolidate and amend the law
relating to juvenile in conflict with law and children in need of care and
protection, by providing for proper care, protection and treatment by catering
to their development needs, and by adopting a child friendly approach in the
adjudication and disposition of the matters in the best interest of children and
for their ultimate rehabilitation and matters connected therewith or incidental
5
thereto .

Juveniles: Who are They

A “Juvenile” or “Child” means a person who has not completed eighteen years
of age.
According to International Law, a ‘Child’ means every human being below the
age of 18 years. Today this is a universally accepted definition of a child which
comes from the United Nations Convention on the Rights of the Child
(UNCRC).
 Under the Indian Law
Sec. 2 (k) of the Juvenile Justice (Care and Protection of Children) Act,2000
defines “juvenile” or “Child” as a person who has not completed eighteen
years of age.
According to Sec. 2 (d) of Juvenile Justice Act, a child in need of care and
protection means:

1. child who is found without any home or settled place or abode and
without any ostensible means of subsistence.
2. Child who is found begging or who is either a street child or a
working child.
3. Child who resides with a person, whether a guardian of the child or
not, and such person has threatened to kill or injure the child or
abused and there is a reasonable likelihood of the threat being
carried out or has killed, abused or neglected some other child or
children and there is a reasonable likelihood of the child in
question being killed, abused or neglected by that person.
4. Child who is mentally or physically challenged or children suffering
from terminal or incurable disease having no one to support or look
after.
5. Child who has a parent or guardian, such parent or guardian is
unfit or incapacitated to exercise control over the child.
6. Child who does not have parents and no one is willing to take care
of or whose parents have abandoned him or who is missing or run
away child and whose parents cannot be found after reasonable
inquiry.
7. Child who is being grossly abused, tortured or exploited for the
purpose of sexual abuse or illegal acts.
8. Child who is found vulnerable and is likely to be inducted into drug
abuse or trafficking.
9. Child who is being or is likely to be abused for unconscionable
gain.
10. Child who is a victim of any armed conflict civil commotion or
natural calamity.

​ Juvenile/Child in conflict with law?(JICL)

Section 2 (l) of the Juvenile Justice Act, 2000 has defined “juvenile in conflict
with law” as a juvenile who is alleged to have committed an offence and has
not completed eighteenth year of age as on the date of commission of such
6
offence .

Competent Authority
Juvenile Justice Board is the competent authority in relation to juveniles in
conflict with law. Sec. 4 authorizes the State Government to constitute
Juvenile Justice Boards for exercising the powers and discharging the duties
conferred or imposed on such boards in relation to Juveniles in conflict with
the law under this Act.
Juvenile Justice Board has the powers to deal exclusively with all proceedings
relating to juveniles in conflict with law. The Board shall consist of a
Metropolitan Magistrate or a Judicial Magistrate of the first class, as the case
may be, and two social workers of whom at least one shall be a woman.
The object behind constituting a Board is that the matters of children should
not be dealt by regular courts. The purpose is to keep the children away from
the atmosphere of regular courts which may adversely affect the psychology
of a child. A joint proceeding of an adult accused and a child is also not
permitted. Board shall not conduct a trial but an enquiry of the offence
committed by a child and the same shall be completed within four months
unless it is extended for a further maximum period of two months for reasons
to be recorded.
7
In Ajit Kumar v. State of Bihar [AIROnline 2018 pat 1852] , a person who was

juvenile on date of occurrence could not be tried in regular trial under Cr.PC
with those who were not juvenile on date of occurrence. It was held that
petitioner should not face regular trial but instead an inquiry would proceed
under the Juvenile Justice Act.
Procedure In Relation To Board
1. The Board shall meet at such times and shall observe such rules of
procedure in regard to the transaction of business at its meetings, as
may be prescribed.
2. A child in conflict with law may be produced before an individual
member of the Board, when the Board is not sitting.
3. A Board may act notwithstanding the absence of any member of the
Board, and no order made by the Board shall be invalid by reason
 only of the absence of any member during any stage of proceedings.
Provided that there shall be at least two members including the
Principal Magistrate present at the time of final disposal of the case.
4. In the event of any difference of opinion among the members of the
Board in the interim or final disposition, the opinion of the majority
shall prevail, but where there is no such majority the opinion of the
principal Magistrate shall prevail.

​ Orders that may be Passed by the Board

Irrespective of the age of a child in petty offences, serious offences and
heinous crime committed by a child below 16 years, if Board finds that child
has committed an offence, then the board may pass an order to go home after
advice or admonition, or group counseling or community service. A child may
be released on probation and placed under the care of guardian or fit person
or fit facility but he shall be kept only for three years.
In case of heinous crime committed by children between 16-18 years board
shall complete a preliminary assessment within a period of three months from
8
the date of first production .

Where the juvenile Court is satisfied that the offence committed by the
juvenile is of serious nature, it may order him to be kept in safe custody in
such place and under such body as it thinks fit , but such custody shall never
be for a period of more than the period for which he was liable to be
9
sentenced.

Need of New Juvenile Justice Enactment of

2015
The Articles 15(3), 39 (e) and (f), 45 and 47 of the Constitution of India confer
powers and impose duties on the State to ensure that all the needs of the
children are met and their basic rights are fully protected. It was the need of
the time to re-enact the Juvenile Justice Act, 2000 taking into consideration
various international conventions. The concept of juvenile in India, until
passing of Children Act, 1960 did not have uniformity regarding age limitation
of juvenile delinquent. Bombay Children Act 1948, Haryana Children Act
defined “Child” to mean a boy who has not attained the age of sixteen years
or girl who has not attained age of eighteen years. The U.P. Children Act and
The East Punjab Act, Andhra Pradesh (Telangana Area) Children Act defined
“Child” as a person under age of sixteen years. Under A.P. Children Act 1920
“child” means a person under 14 years.
The National Crime Record Bureau (N.C.R.B.) data shows that there had
been an increase of offences committed by juvenile, especially in the age
group of 16-18. One of the preparators in the Delhi gang rape of 2012, was
few months short of 18 years age and he was tried as juvenile. He was sent to
Reformation Home for 03 years and was released in December, 2015. This
had raised the public demand for lowering age of juvenile under the Act. The
provisions of this new enactment is basically generally highlighted only for the
aspect of a much contemplated change in the definition of a child in conflict in
law and making classification based on age and understanding of offence.
This would be indeed injustice to the legislators . Therefore, the Act, 2015 has
been enacted. The Juvenile Justice (Care and Protection of Children) Act
2015 was enforced on January 15, 2016.The Act, passed by the Rajya Sabha
in the winter session of Parliament, received Hon'ble President's assent on
December 31 2015.
Bail to Juvenile
Sec.12 of the JJ Act deals with bail of juveniles. While Sec 12(1) relates to
bail , Sec. 12(2) and Sec. 12(3) are concerned respectively with the custody
of a juvenile who is not released on bail by the officer-in-charge of the police
station or by the Board.
Bail means to set at liberty a person arrested or imprisoned, on security being
taken for his appearance on a day and a place which security is called ‘bail’,
because the party arrested or imprisoned is delivered into the hands of those
who bind themselves for his forthcoming.
The grant of bail under the Act is a matter of course if the requisite conditions
are fulfilled, namely the accused person is apparently a juvenile within the
meaning of the Act, he is arrested or detained or appears or is brought before
a Board , he is accused of an offence which may be bailable or non-bailable,
and there are no grounds for believing that the release is likely to bring him
into association with any known criminal or expose him to moral , physical or
psychological danger or that his release would defeat the ends of justice.
The Law is very much concerned that juveniles do not come in contact with
hardened criminals and their chances of reformation are not blighted by such
contact. It therefore, throws its cloak of protection around juveniles and seeks
 to isolate them from criminal offenders because the emphasis placed by the
10
law is not on incarceration but on reformation .

Bail to juvenile can be denied under three conditions only, namely

1. Release is likely to bring him into association with any known
criminal or
2. Expose him to any moral danger or
3. The release would defeat the ends of justice

​ Child Welfare Committee

The JJ Act empowers the State Government to constitute for any district or a
group of district one or more Child Welfare Committee for exercising the
powers and discharging the duties in relation to child in need of care and
protection under the Act.
Rules governing the procedure of the committee are as follows :
1. The committee shall meet at such times and shall observe such rules
of procedure in regard to the transaction of business at its meetings,
as may be prescribed.
2. A child in need of care and protection may be produced before an
individual member for being placed in safe custody or otherwise
when the committee is not in session.
3. In the event of any difference of opinion among the members of the
committee at the time of any interim decision, the opinion of the
majority shall prevail but where there is no such majority the opinion
of the Chairperson shall prevail.
​ Powers of the committee
1. The committee shall have the final authority to dispose of cases for
the care, protection , treatment , development and rehabilitation of
the children as well as to provide for their basic needs and protection
of human rights .
2. Where a committee has been constituted for any area, such
committee shall, not withstanding anything contained in any other
law for time being in force, but save as otherwise expressly provided
in this Act, have the power to deal exclusively with all proceedings
under the Act relating to children in need of care and protection.
​ Process of Rehabilitation and Social
Reintegration
The Act lays down the process of rehabilitation and social reintegration of a
child shall begin during the stay of the child in a children’s home or special
home and the rehabilitation and social reintegration of children shall be
carried out by any of the following methods:
1. Adoption
2. Foster care
3. Sponsorship
4. Sending the child to an after care organization

​ Adoption
Adoption means the process through which the adopted child is permanently
separated from his biological parents and becomes the legitimate child of his
adoptive parents with all the rights, privileges and responsibility that are
attached to the relationship.
It has been held that the jurisdiction to grant permission to adopt children
vests with the Civil Court. A Civil Court may allow a child to be given in
adoption. Juvenile Justice Board has no jurisdiction to decide matters of
11
adoption .

Foster Care
In Foster care, the child may be placed in another family for a short or
extended period of time, depending upon the circumstances where the
parent’s own parent usually visit regularly and eventually after the
rehabilitation , where the children may return to their own homes.
Sponsorship
The sponsorship program may provide supplementary support to families, to
children’s home and to special homes to meet medical, nutritional,
educational and other needs of the children with a view to improving their
quality of life. The State Government may make rules for the purposes of
carrying out various schemes , such as individual to individual sponsorship ,
group sponsorship or community sponsorship.
After care organization
 Sec.44 relates to after care organization . The State Government may , by
rules made under the Act provide
1. For the establishment or recognition of after care organization and
the functions that may be performed by them under the Act .
2. For a scheme of after- care programme to be followed by such after
care organization for the purpose of taking care of juveniles or the
children after they leave special homes, children homes and for the
purpose of enabling them to lead an honest, industrious and useful
life.
​ juvenile or child over seventeen years of age but less than eighteen years of age
A
would stay in the after care organization till he attains the age of twenty years.

Sr. Details
N
o.

1 Ahamed Siddique-Criminology Problems and Perspectives

2 Dr. M. Ponnian-Criminology and Prnology

3 Dr. Rajendra K. Sharma-Criminology and Penology

4 Dr. Sirohi-Criminology

5 Paranjape-Criminology

6 Bames and Teeters-New Horizons of Crminology

7 Sutherland-Criminology

8 Taft and England-Criminology

 9 Siegel-Criminology

1. Girjesh Shukla, “Criminology: Crime causation , sentencing and

Rehabilitation of victims” , Lexis Nexis 2013
2. Supra N1
3. Jennifer M Allen, “Juvenile Justice: A Guide to Theory, Policy and
Practice” , Sub Publications (2011)
4. H.S.Gaur, The Penal Laws Of India, Vol. I , 2000.
5. Ve d Kumari, “The Juvenilke Justice System in India” Oxford
university 2010
6. Supra N5
7. AIR 1954 Cal 49
8. Manish Dwivedi , “Juvenile Justice System in India” Adhyayan
Publishers2011
9. Awadeshwar Singh v. State of Bihar AIR 1962 SC 955
10. Munna v. State of UP AIR 1982 SC 806
11. Krishnanugraha v. Commissioner Registrar of Birth and Death Udupi
Municipality AIR (2013) Karn 62.
​ Unit III - Types of Crime

Course Outline of Unit III: Types of Crime

This Unit contains discussion on following topics :

White - Collar Crime and Blue - Collar Crime: Implication of White Collar
Crimes - White Collar Crimes in India - Santhanam Committee Report -
th Law Commission Report - Detection
Wanchoo Committee Report - 47

and Investigation - Trial of White - Collar Crimes - Case Law.

Crime and Women: Dowry Prohibition (Amendment) Act, 1986 - Female

Criminality - Crimes of Pasion - New Legislation - Prostitution - Immoral

Traffic Offender (Prevention) Act - Medical Termination of Pregnancy Act

- Pre Conception and Pre Natal Diagnosis Techniques (Regulation) Act -

Domestic Violence Act - Criminal Law Amendment Act, 2013.

Terrorism: Definition - Nature of Terrorism - Causative Factors - Funds for

Terrorism - Kinds of Terrorism - Terroristic Spectrum - Punishments and

Measures for Coping with TADA - POTA - Criticism - Anti - Terrorist

Measures - Communal Violence - Causes and Cures.

Marginal and Victimless Crimes: Social Deviance and Marginal Crimes -

Kinds of Marginal Crimes - Victimless Crimes: Social Deviance and

Marginal Crimes - Kinds of Marginal Crimes - Victimless Crimes -

 Hidden Victims - Drug and Crime - Depiction of Offences and

Punishments - NDPS Act.

Modern Crimes and International crimes: Computer Crime - Kinds of

Computer Crimes - Definition of Computer Crime - Information
Technology Act, 2000 - Human Organ Crimes - International Crime -
Environmental Crimes.

​ Disclaimer: This subject content as provided under AIR Online Education

Support Suite is only Study (Reference) Material for supplementing your
Academic Classroom (Text Book) Learning. These are not Text Books on the
Law Subjects.

​ Introduction
​ White Collar Crime
​ Certain professions offer lucrative opportunities for criminal acts and unethical
practices which hardly attract public attention. There have been people who
used to follow unethical practice while doing business. They carry illegal
activities with impunity and without any fear of loss of their prestige or status.
Such types of crimes are known as ‘white-collar’ crimes which was an
outcome of competitive economy of 20th century.
​ Historical Background
​ The concept of white collar crime is associated with E.H Sutherland who
focused on the study of criminology. It first time came up in 1941 when
Sutherland published his first research paper on white collar crime in the
American Sociological Review.
​ He stated that there are crimes other than fraud, extortion, rape, murder etc.
He further stated that there are offences which are committed by people of
upper strata while they carry their business.
​ However, complaints against such offences are most of the times went
unheeded and unpunished. He termed these crimes as ‘white-collar’ crime
and ‘blue-collar’ crime. The person who belongs to a respectable class of
society and possesses good reputation sells shoddy goods and products he
commits white collar crime.
​ Definition of white collar crime
 Sutherland “Crime committed by persons of
respectability and high social
status in course of their
occupation.”

Sir Walter Reckless White-collar crime represents the

offences of businessmen who
are in a position to determine
the policies and activities if
business.

​ A white-collar criminal belongs to upper socio-economic class who violates

the criminal law while conducting his professional qualities.

​ Types of Crime
​ White Collar Crime and Blue Collar Crime
​ White Collar Crime
​ White collar crime was first defined in criminology by Sutherland in 1939 as “a
Crime committed by a person of respectability and high social status in the
course of his occupation”.
​ White collar Crime could include fraud, bribery, insider trading, labor
racketeering, embezzlement, cybercrime, copyright infringement, money
laundering, identity theft, and forgery. White collar crimes are basically
motivated by finance. It is a non-violent crime committed by business man
1
and government professionals .

​ Blue Collar Crime

​ Blue collar crime is crime committed by lower social class. These crimes are
basically for small scale for immediate gain to the individual or group involved
in them. Blue collar crime not only includes low income earners, but also
includes the unemployed who are also members of the lower classes.
​ This crime includes personal related crimes that can be determined by
immediate reaction, such as during fights or confrontations. These crimes also
include but are not limited to narcotic production or distribution, sexual
assault, theft, burglary, assault or murder.
​ Classification of White-collar crime
​ White Collar Crimes may be divided into the following categories-
 3. Bank Fraud
​ To engage in an act or pattern of activity where the purpose is to defraud a
bank of funds.
3. Blackmail
​ A demand for money under threat to do bodily harm, to injure property or to
expose secrets.
3. Bribery
​ When money, goods, services or any information is offered with intent to
influence the actions, opinions and decisions of the taker, constitutes bribery.
3. Cellular Phone Fraud
​ Unauthorized use or tampering or manipulating cellular phone services.
3. Embezzlement
​ When a person, who has been entrusted with the money or property,
appropriates it for his or her own purpose.
3. Counterfeiting
​ Copies or imitates an item without having been authorized to do so.
3. Forgery
​ When a person passes false or worthless instruments such as cheque or
counterfeit security with intent to defraud.
3. Tax-Evasion
​ Frequently used by the middle-class to have extra-unaccounted money.
3. Adulteration
​ Adulteration of foods and drugs.
3. Professional crime
​ Crimes committed by medical practitioners, lawyers in course of their
Occupation.

​ White Collar Crime in India and Implication of

White Collar Crime
​ In India with the advancement of commerce, technology, globalization and
liberalization white collar crimes are rapidly increasing. Increase in wealth and
prosperity due to change in socio-economic scenario provides the opportunity
to increase white collar crime. Like any other country, India is equally in the
grip of white collar criminality.
​ The recent developments in information technology, particularly during the
closing years of the twentieth century, have added new dimensions to white
collar criminality. There has been unprecedented growth of a new variety of
computer dominated white collar crimes which are commonly called as
cyber-crimes.
​ These crimes have become a matter of global concern and a challenge for the
law enforcement agencies in the new millennium. Because of the specific
nature of these crimes, they can be committed anonymously and far away
from the victims without physical presence.
​ Highlighting the magnitude and gravity of white-collar crime in India, the
Commission on ‘Prevention of Corruption’ classified that white-collar crime
and socio-economic crimes into eight categories and it further made
suggestions to insert a new chapter on white-collar crime under Indian Penal
Code. The matter was referred by the Government to the Law Commission of
India for consideration. However, the proposal was disagreed by the Law
Commission.
​ Laws Related to White Collar Crime in India
​ Though the Indian Penal Code does provide certain provisions dealing with
crimes similar to white collar crimes, but they were not only found inefficient
but also conventional as they were inadequate in prohibiting white collar
crimes.
​ After independence, the Government of India formulated regulatory legislation
relating to white-collar crime. Some of these legislation are Essential
Commodities Act 1955, the Industrial (Development and Regulation) Act,
1951, the Import and Exports (Control) Act, 1947, the Foreign Exchange
(Regulation) Act, 1974, Companies Act, 1956, Prevention of Money
Laundering Act, 2002.
2
​ In J. Jayalalitha v. Union of India [AIR 1999 SC 1912] The Supreme Court

admitted that corruption is rampant amongst the public servants. Court further
stated that corruption corrodes the moral fabric of the society and is harmful to
the national economy. Corruption by persons occupying high posts in
government, by misusing their powers can cause considerable damage to the
national economy, national interest and image of the .

​ Santhanam Committee Report

​ Santhanam Committee was appointed in the year 1962 to investigate and
combat investigation related to corruption. This committee was the first
committee which provides great importance to the emergence of offences and
mal-practices known as “white-collar”. The Santhanam Committee can be
termed as the “The mother of anti-corruption agencies in India” because the
Central Vigilance Commission, the Central Bureau of Investigation (earlier
DSPE) and the Enforcement Directorate (ED) were born out of it.
​ The Santhanam Committee Report in its finding gave a vivid picture of
white-collar crime and criminals where it was mentioned that the crimes are
committed by persons of respectability such as big businessmen, contractors,
industrialists and also by corrupt public officials.
​ The Santhanam Committee provides various important suggestions, which
are:
3. To establish the Vigilance Commission.
4. To make anti-corruption more effective it is required to review the
public services and practical steps to be taken.
5. The committee provides the steps to be taken to fix the
responsibilities of each department for checking corruption.
6. The committee also suggested for making changes in law and
making the law more effective so that speedy trial for bribery,
corruption, and criminal misconduct has been possible.
7. In order to liberalize the existing rules the Committee also suggested
forming the Central Vigilance Commissionand accordingly in 1964
the Central Vigilance Commissioncommittee was constituted.
​ Act Amended on the Recommendation of Santhanam Committee are:

3. On the recommendation of Santhanam Committee the Indian

Penal Code Act was amended in the year 1964 and incorporated
Sec. 5(1)(e) in the old Penal Code.
4. The Prevention of Corruption Act, 1947 was amended in 1964
based on the recommendation of the Committee.

​ Wanchoo Committee Report

​ Wanchoo Committee was formed on 2nd March 1970 by a declaration of
Government of India with following aims:
​ Committee was supposed to urge the ways to look into turning away of
revenue enhancement through assorted legal blank, to unearth black money
 and prevent its enlargement through farther equivocation and to cut down
revenue enhancement arrears.

​ 47th Law Commission Report

​ The 47thLaw Commission Report is based on the trial and punishment of the
Social and Economic Offences. The question whether social and economic
causes had been included in the Indian Penal Code has been considered in
this report.
​ In this report many offences but not all offences are considered as a “White
Collar Crime”. For the purpose of the 47thLaw Commission Report, white
collar crime is a crime committed in the course of the business by a member
of upper class of the society.
​ For example if the manufacturer of the drug deliberately supplies the
sub-standard drug then he is a white collar criminal. But if a person illegally
smuggles the costliest television for his personal use is not a white collar
crime as there is no such relation between his occupation and crime
committed by him. Social offences affect the health or material welfare of the
committee and economic offences affects the country’s economy and not
merely the wealth of the victim.
​ Therefore, it has been said that socio- economic offences and white collar
crime are intersecting circles.
​ White collar crimes in certain professions
​ Some of the professions involving technical expertise and skill provide
sufficient opportunities for white collar criminality.

3. Medical Profession
4. Engineering
5. Legal Profession
6. Educational Institutions

​ Medical Profession
​ White collar crimes which are committed by persons belonging to medical
profession which includes- issuance of false medical certificates/ illegal
abortions/ secret service to dacoits/ selling sample-drugs and medicines to
patients or chemists etc.
​ The persons employed in Government departments or other undertakings
generally face issues of getting leave due to shortage of staff. They procure
medical certificate regarding their false sickness and in return, they have to
pay certain amount to the concerned medical staff. This practice is another
 form of white-collar crime which promotes wrong practice and misuse of
medical science.
​ Fake and misleading advertising is yet another area in which the white collar
criminals operate. They make illegal and misleading claims of medical cure
through advertisements in newspapers, magazines, radio etc. which causes
misery to common man. Many medicines which are also patented are harmful
to health.
​ Engineering
​ Underhand dealings with contractors and suppliers, passing of sub-standard
works and materials and maintenance of bogus records of work-charged
labour are some of the common basic examples of white collar crime. Such
kind of scandals is reported in newspapers and magazines daily.
​ They financially earn more for their low grade works from the contractors, than
they can earn for the genuine work. Therefore, many of them, out of the greed
of earning more and more, play dangerously with thousands of lives of the
individuals.
​ Legal Profession
​ In present scenario legal profession is deteriorating rapidly. The standard of
legal education and unethical practices followed to procure clientage are the
main reasons for the degradation of legal profession. There are various other
reasons such as fabricating false evidence, engaging professional witnesses,
violating ethical standards of legal profession etc.There are criminal lawyers
who arrange professional alibies, cooked witnesses in close liaison with the
police for defending the gangsters.
​ Educational Institutions
​ The governing bodies of these institutions manage to secure large sums by
way of Government grants or financial aid by submitting fictitious and fake
details about their institutions.
​ The teachers and other staff working in these institutions receive a meagre
salary far less than what they actually sign for, thus allowing a big margin for
the management to grab huge amount in this illegal manner. The victimized
teachers can hardly afford to complain about this exploitation to high ups
because of the fear of being thrown out of job.

​ Crime and Women

​ Statutory Provision
​ Dowry Death (Sec. 304B of Indian Penal Code)
​ Where the death of a woman is caused by any burns or bodily injury or occurs
otherwise than under normal circumstances within seven years of her
marriage and it is shown that soon before her death she was subjected to
cruelty or harassment by her husband or any relative of her husband for, or in
connection with, any demand for dowry, such death shall be called “dowry
death”, and such husband or relative shall deemed to have caused her death.
​ Explanation
​ For the purpose of this sub-section, “dowry” shall have the same meaning as
in Section 2 of the Dowry Prohibition Act, 1961.
​ Whoever commits dowry death shall be punished with imprisonment for a
term which shall not be less than seven years but which may extend to
imprisonment for life.
​ Introduction
​ The offence of dowry death has been inserted in the Indian Penal Code as
Sec. 304-B by the Dowry Prohibition (Amendment) Act, 1986. Sec. 304-B has
been inserted with a view to curb the growing atrocities against women, where
thousands of young women were done to death due to failure to pay up the
dowry demanded. The Amendment Act of 1986 has also made several
consequential amendments in the Criminal Procedure Code and the Evidence
Act, in order to make the prosecution of offenders in cases of dowry death
more effective.
​ Definition of Dowry

Dowry Prohibition Act, 1961 Sec. “Dowry” means any property or

2 valuable security given or
agreed to be given either
directly or indirectly-

1. By one party to a
marriage to the other
party to the marriage,
or
2. By the parent of either
party to a marriage or
by any other person, ,
to either party to the
 marriage or to any
other person

According to Merriam Webster Dowry is the money, goods, or

Dictionary estate that a woman brings to
her husband in marriage

​ Essential ingredients: Dowry death

​ To constitute an offence under Sec. 304–B the following essentials must be
satisfied-
3. The death of a woman must have been caused by burn or bodily
injury or otherwise than under normal circumstances.
4. Such death must have occurred within seven years of her marriage;
5. Soon before her death, the woman must have been subjected to
cruelty or harassment by her husband or by relatives of her husband;
​ Important points to remember
3. Such cruelty or harassment must before or in connection with
demand of dowry.
4. For drawing a presumption under Sec. 113-B of the Evidence Act
firstly there should be death of a woman otherwise than in normal
circumstances.
5. Death must have occurred within seven years of marriage.
6. The prosecution must prove that soon before her death she was
subjected to cruelty or harassment in connection with any demand
for dowry by person accused of having committed the offence.
7. It is not open to the Courts to draw a presumption against the
accused invoking Sec. 113-B of the Evidence Act.
8. Merely because an allegation of death within seven years of the
marriage was made presumption is not available against accused
without even the prosecution having proved the required preliminary
facts.
9. The husband and husband’s relatives shall be presumed to have
caused a ‘dowry death’ and shall be liable for the offence unless it is
proved otherwise.
 10. The burden of proof shifts from the prosecution to the accused,
unlike other offences where the accused is presumed to be innocent,
unless it is proved otherwise.

​ Important Case Laws related to Dowry Death

3. Reema Aggarwal v. Anupam [2004 Cr.LJ 892 (SC)]
​ It was observed that if the validity of marriage itself is under legal scrutiny, the
demand of dowry in respect of an invalid marriage would be legally not
recognizable. Even then the purpose for which Sec. 498-A and 304-B of IPC
and Sec. 113-B of the Evidence Act were introduced cannot be lost right of.
The obvious objective of enacting above Sections was to prevent harassment
to a woman who enters into a marital relationship with a person and later on
becomes a victim of the greed for money.
​ The argument that since there was no valid marriage the question of dowry
does not arise is not acceptable. The Court further observed that the
legislative intent is quite clear from the fact that it is not only the husband but
also his relations who are covered by Sec. 498-A of IPC.
3. Kodam Gangaram v. State of A.P. [1999 Cr.LJ 2181 (A.P.)]
​ It was observed that clear statement of deceased that she was forced to
commit suicide due to harassment of dowry demand by husband, and her
statements are fully corroborated by other evidences, it can well be presumed
that it was only harassment which resulted in death, conviction under Sec.
304-B and 498-A IPC is proper and fully justified.
3. Arbind Kumar Ambasta v. State [2002 AIR - JHAR. H. C. R. 920]
​ It was observed that the period of marriage being vital, in this particular case,
for punishment under Sec. 304-B, IPC and there being dispute, in the present
case, relating to period of marriage, specific period having not established, the
accused were entitled to benefit of doubt.
3. Rajayyan v. State of Kerala [AIR 1998 SC 1211]
​ It was observed that death “otherwise than in normal circumstances” would
mean that the death was not in the usual course but apparently under
suspicious circumstances if it was not caused by burn or bodily injury. Death
of a woman by suicide occurring within 7 years of marriage cannot be
described as occurring in normal circumstances.
3. In Dev Prasad v. State of U.P. [2002 Cr. LJ 4291]
​ It was observed that while an ordinary murder can be punished by a death
sentence under Sec. 302 IPC, a dowry death, which is a much worse offence,
has a maximum punishment of life imprisonment. An ordinary murder is
committed in a fit of rage or for property, but a dowry death is not just an
ordinary crime, it is a social crime.
​ It outrages the modern conscience and makes the whole of society revert to
feudal barbarism. Hence, Court recommended to Parliament to amend the
law and provide for death sentence in dowry death cases.
​ Dowry Death and Cruelty
​ The term ‘cruelty’ means-
​ “Any willful conduct which is of such a nature as it likely to drive the woman to
commit suicide or to cause grave injury or danger to life etc. or harassment to
coerce her or any other person related to her to meet any unlawful demand
for any property or valuable security or is an account of failure be her or any
person related to her to meet such demand.”
​ Sec. 304B and 498A of the Indian Penal Code are not mutually exclusive.
These provisions deal with two distinct offences. It is true that “cruelty” is a
common essential to both the sections and that has to be proved.
​ The Explanation to Sec. 498 A gives the meaning of “cruelty”. In Sec. 304 B
there is no such explanation about the meaning of “cruelty” but having
regarded to the common background to these offences the meaning of
“cruelty” or “harassment” will be the same as given in explanation to Sec.
498A under which “cruelty” by itself amounts to an offence and is punishable.
​ Under Sec. 304 B it is the “dowry death” that is punishable and such death
should have occurred within seven years of the marriage. No such period is
mentioned in Sec. 498 A and the husband or his relatives would be liable for
subjecting the woman to “cruelty” any time after the marriage charge being
there, if such a case is made out.
​ But from the point of view of practice and procedure and to avoid technical
defects it is necessary in such cases to frame charges under the both
Sections and if the case is established they can be convicted under both the
sections but no separate sentence be awarded under Sec. 498A in view of the
substantive sentence being awarded for the major offence under Sec. 304 B.

​ Female Criminality
​ Prostitution
​ In India Trafficking is not a modern day development but it existed even during
ancient and medieval periods. Prostitution has been an old age practice in
India. During the medieval period sale and purchase of women was very
common. The trafficking in women was present in one form or another all over
the world.
​ It was observed by Donald Taft, “our attitude towards prostitution varies from
approval through acceptance and tolerance to violent opposition.” Whenever
the institution of marriage is weakened, prostitution declined due to sex
gratification could be obtained without payment. Prostitution in a way is an
index to morality.
​ Women are forced to work in the desire for maximum profit margins, and a
very little has been spend on adequate food, shelter and safe condition. From
the perspective of security is a very big issue in trafficking and it causes
terrible sufferings to women and children, even the loss of lives in many such
cases.
​ The trafficked women and children face almost the same violence, same
health consequence and sexual abuse as women and children who are
battered and raped. Trafficked women who return to their home faces new
difficulties as they get rejections from their families and community, such type
of women’s are very less self-financial supporting and does not get formal
employment opportunities, these women does not had any option other than
to return to prostitution within their own community, or again migrate as this is
their only means of financial support.
​ India’s efforts to fight against Trafficking
​ Trafficking in women for immoral or other purposes is very common in India.
In the case of Vishal Jeet v. Union of India [AIR 1990 SC 1412], the Supreme
Court observed that trafficking in human being has been established in India
from a very long time in the form of selling and purchasing of human being for
the purpose of prostitution.
​ On the basis ofArticle 23(1) of the Constitution of India, the Immoral Traffic
(Prevention) Act, 1956, has been passed.This Act has made in pursuance of
the international Convention for the prevention of immoral trafficking which is
signed by India at New York 09.05. 1950.
​ As per Article 39(e) of the Constitution of India the State should make policy
towards securing the tender age of children not abused. Article 39(f) provided
 that State direct policy towards securing childhood and youth are protected
against exploitations and moral and material abandoned.
​ The Government of India has developed a national policy for the welfare of
the children. The principle originated by the Declaration of the Rights of the
child adopted by the general Assembly of United Nations on November 20,
1959.
​ According to this principle “The child shall be protected against all forms of
neglect, cruelty, and exploitation. He shall not be the subject of traffic, in any
form. Because of this certain drastic amendment has been introduced to the
Immoral Traffic (Prevention) Act, 1956 (earlier Suppression of immoral Traffic
in Women and Girls Act, 1956) by the Amendment Acts of 1978 and 1986.
The aim of this act is suppression of prostitution in women and girls and
provides them an opportunity to become decent members of the society.
​ There are various other provisions provided in the Indian Penal Code, 1860
relating to Procuration of minor girl (Sec. 366A), Offence of importation of girl
for foreign countries (Sec. 366B), offence of buying and selling of minor for
the purpose of prostitution (Sec. 372 and 373).
​ International Dimensions of Human Trafficking
​ The trafficking of women, young girls and children at international level
continues to be a global problem which is generating business every year. It is
third largest illegal transnational business after drugs and arms which is
spreading world-wide at a fast pace.
​ International Conventions to mitigate this rampant violation of human rights.
Some of the Conventions are-

3. CEDAW- Convention on the Elimination of All Forms of

Discrimination Against Women
4. CRC- Convention on the Rights of the Child etc.

​ Procuration of a minor girl

​ According to Sec. 366A of the Indian Penal Code, 1860 if some induces a
minor girl under the age of 18 years to go from any place or to do any act
which is likely to be intended to force or seduce to illicit intercourse with
another person shall be punishable with imprisonment which may extent to
ten years and shall also be liable to fine.
​ Importation of girl from foreign country
​ Under Sec. 366B of Indian Penal Code, If a girl whose age is below 21 years
and has been imported from outside of India with the intention to either
 seduce or compel her to have illicit intercourse with another person it amount
to an offence.
​ Selling or buying of Minor for the purpose of prostitution
​ Sec. 372 and Sec. 373 of Indian Penal Code deals with any person who is
involved in buying or selling of minor or lets to hire or otherwise disposes of
any person under the age of eighteen years with the purpose of prostitution,
or illicit intercourse with any person or any unlawful and immoral purpose
such person shall be punishable with imprisonment which may extend to ten
years and shall also be liable to fine.

​ The Immoral Traffic Offender (Prevention) Act,

1956, (ITPA)
​ Introduction
​ Originally before the enforcement of the Amendment Act, 1986, this
enactment was called “the Suppression of Immoral Traffic in Women and Girls
(SITA)”. Later the name of the Act was changed to Immoral Traffic Prevention
Act; term ‘person’ used under SITA was replaced by the terms ‘women and
girls’. After the said amendment to the Act, the offence of prostitution now
comprises of both women and girls.
​ The Act provides for the appointment of a special police officer for
investigating the offences with inter-State ramifications. Raids and searches
should be conducted in the presence of two police women. This Act is a
special legislation that deals exclusively with trafficking.
​ The main aim of the Act is to inhabit, control and abolish commercialized vice
of trafficking in women and girls for prostitution as an organized means of
living. The purpose under this Act is to reduce and abolish the
commercialization of the trafficking in women and girls for prostitutions as
means of livings.
​ This Act provides offences like keeping a brothel, or allowing the premises to
be used as a brothel, living on the earning of prostitution, procuring, inducing,
or taking persons for prostitution, detaining a person in the premises where
prostitution is carried on, prostitution and around the vicinity of the public
places, seducing or soliciting for the purpose of the prostitution and seduction
of a person in custody.
​ In the case of Delhi Administration v. Ram Singh [AIR 1962 SC 63]- The State
Government may associate with Special Police Officer a non-official body
which consists of not more than five leading social welfare workers of the area
 including women worker to advise them on questions of general importance
regarding working of the Act.
​ Meaning of Brothel
​ According to Sec. 2(a) of the Immoral Traffic (Prevention) Act, 1956, brothel
means any house, place or any portion of the house which is used for the
purpose of sexual exploitation or abuse, for the gain of another person, or for
mutual gain for two or more prostitutes. Essential ingredient is that a girl/ lady
should be a person offering her body for promiscuous sexual intercourse for
hire.
​ Keeping assigning or managing a brothel
​ Sec. 3 of the Act deals with the punishment regarding keeping assigning or
managing a brothel. Therefore a landlord, lessor, tenant, occupier or lessee is
punishable if he knowingly uses the premises or places for prostitution and
allows it for such use.
​ Sec. 23-A of the Act confers power on the Central and State Governments to
establish Special Courts for trial of offenders under the Immoral Traffic
(Prevention) Act. The offence can be tried summarily under the Code of
Criminal Procedure but sentence in such a case cannot exceed one year’s of
imprisonment as given under Sec. 22B of the Act.

​ Constitutional validity of the Act

​ Article 23 of the Constitution of India prohibits immoral traffic in human being
and makes it punishable under the law.
​ The Constitutional validity of the Immoral Traffic (Prevention) Act, was
challenged in the case of Shama Bai v. State of Uttar Pradesh [AIR 1959 All
57]- However, the Court in this held that Sec. 4(2) and 20 of the Act were
constitutional and not violative of the fundamental rights. None of the
provision of the Act are intended to stop trade of prostitution altogether. Only
restrictions can be imposed and punishment can be imposed under Sec. 3 of
the Act if a brothel has been maintained.
​ Person liable to be punished
​ If the person is above the age of 15 years and he lives with the company of
prostitute, habitual in the company of prostitute, exercises control over the
movement of the prostitute and he acts as a tout or pimp on behalf of the
prostitute then in case he liable to be punished under Sec. 4 of the Act
Immoral Traffic (Prevention) Act, 1956.
​ Any person who induces a person to take prostitute and moves from one
place to another intend to carry his or her on prostitution is also liable to be
punished under Section 5 of the Immoral Traffic (Prevention) Act, 1956 and
Sec. 366, 372, 373 of The Indian Penal Code
​ The arrest of the women involve in the prostitution is liable to be punished
which may extend from seven years to life imprisonment under Section 8 of
the Immoral Traffic (Prevention) Act, 1956.
​ As per Sec. 9 the Immoral Traffic (Prevention) Act, 1956 and Sec. 376 (B) (C)
and (D) of the Indian Penal Code, Any person who commits the offence of
custodial seduction, then that person is liable for imprisonment of seven
years and also fine.
​ Sec. 10 of the Immoral Traffic (Prevention) Act, 1956, provides rehabilitation
and correction of female and child offender who found guilty of offence.
​ According to 14 of the Immoral Traffic (Prevention) Act, 1956, any offence
punishable under this Act shall be deemed to be a cognizable offence.
​ Sec. 14 of the Act explains that-
3. Only the special officer shall arrest without warrant,
4. If the special officer requires the subordinate officer to arrest without
warrant he shall give an order in writing and specify the person and
offence for which arrest is being made and such subordinate officer
before arresting the person shall inform the person of the substance
of order and show him the order.
5. Only specially authorized police officer may arrest the arrest the
concerned person without order if he has reason to believe that on
account of delay any valuable evidence is likely to be destroyed or
concealed or the person who committed the offence is likely to
escape or if the name and address of the person is unknown or
suspected that false name and address has been given.

​ Pre Conception and Pre Natal Diagnosis

Techniques (Regulation and Prevention of
Misuse) Act, 1994
​ Introduction
​ Scientific development and technological advancements are expected to be
used by man for general human good, but unfortunately in present times
some specific technologies are leading to greater abuse on humanity. One
 such case is the sex determination through scientific methods resulting in
female feticide. This is commonly known as sex-selection.
​ Sex-selective abortions have become an alarming social evil in several parts
of India. Discrimination and subjugation on the basis of gender is a real social
problem. The enactment and enforcement of comprehensive legislation
prohibiting sex-selections an essential responsibility of the state as it has an
obligation to uphold the right of all citizens to equality and to ensure their
freedom from discrimination.
​ The Act is legislated in a manner that it should be a deterrent for those
indulging in sex determination. The unfortunate decline in the male-female
sex ratio has brought in stringent measures, there is suspension of
registration, filing of criminal cases and sealing of machines.
​ Few basic requirements of the Act are:
3. Registration under Sec. 18 of the PC-PNDT Act.
4. Written consent of the pregnant woman and prohibition of
communicating the sex of fetus under Sec. 5 of the Act.
5. Maintenance of records as provided under Sec. 29 of the Act.
6. Creating awareness among the public at large by placing the board
of prohibition on sex determination.
​ The Pre-Natal Diagnostic Techniques Act, 1994, was enacted to prohibit
sex-selection techniques and its advertisements throughout the country. A writ
petition was filed, CEHAT and others v. Union of India [AIR 2003 SC 3309],
Writ Petition No. 301/ 2000, under the said petition the correctness of the
name of the Act was challenged. The Act was renamed as Preconception and
Prenatal Diagnostic Techniques Act.
​ The amended Act required the Union and State Government to submit their
quarterly reports to the Central Supervisory Board and to deal with the
working of the Act. The Act provides for medical professionals practicing
feticide and sex determination.
​ The PNDT Act, 1994 (as amended by 2003 Amendment) provide for the
prohibition of sex selection, before or after conception, and for regulation of
pre-natal diagnostic techniques for the purposes of detecting genetic
abnormalities or metabolic disorders or chromosomal abnormalities or certain
congenital malformations or sex-linked disorders and for the prevention of
their misuse for sex determination leading to female feticide.
​ Amendment to Pre-natal Diagnostic Techniques Act 1994
​ The Preconception and Prenatal Diagnostics Techniques (Prohibition of Sex
Determination) Act 2003, with Rules made thereunder is an Act to safeguard
the girl child. The Courts have at all material times and in all possible manners
delivered judgments indicating therefore that the PC-PNDT Act is actually a
whip to penalize those indulging in sex determination and to serve as a
deterrent to others.
​ The amendment to the Act came into effect from 14th March, 2003; it covers
the following major points-

3. It brings the technique of pre-conception sex selection within the

ambit of the Act;
4. It brings the use of ultrasound machines within the scope of this
Act to curb the misuse for detection and disclosure of sex of the
unborn child;
5. It empowers the central supervisory board for monitoring the
implementation of the Act;
6. Introduction of State Level Supervisory Board for monitoring the
implementation of the Act;
7. Constitutes a multi-member State Appropriate Authority for better
implementation and monitoring of the Act;
8. Stringent punishments are provided under the Act whoever will
violate the provisions of the Act;
9. Empower the Appropriate Authorities with the powers of the Civil
Court for search, seizure etc.
10. Making mandatory maintenance of proper records regarding
ultrasounds machine use etc.

​ Major aspects of the Act

​ The Act has three aspects viz. prohibitory, regulatory and preventive.

3. It prohibits sex selection completely either before or after

conception.
4. It regulates the use of pre-natal diagnostic techniques for legal or
medical purposes and prevents misuse for illegal purposes.
5. In order to look into various policy and implementation matters the
Act provides for the setting up for various bodies along with their
composition, powers and functions
6. Under the Act, Registration is mandatory for every genetic clinic.
​ Regulation of Pre-natal Diagnostic Techniques
​ According to Sec. 3 of the PNDT Act, no Genetic Counseling Centre, Genetic
Clinic or Genetic Laboratory unless registered under the Act, can conduct or
associate with, or help in, conducting activities relating to pre-natal diagnostic
techniques.
​ They must also enforce codes to be observed by clinics, investigate violations
of this Act, take legal action against violators, advise the supervisory boards
on changes in technology, etc. They have the power to issue warrants,
summon people with information, and ask for any document to be produced
regarding the information. To aid the Appropriate Authority the Government
will also form an Advisory Committee.
​ Prohibition of Sex Determination and Selection under the Act
​ Strict records have to be maintained of the pregnancy related techniques
performed and failure to maintain such records or any deficiency or
inaccuracy in the maintenance of records of ultra-sound shall amount to
contravention of the provisions of Sec. 5 or Sec. 6 of the Act and strict
penalties shall be imposed.
​ No Genetic Counseling Centre or Genetic Laboratory or genetic Clinic or any
person can conduct or cause to be conducted pre-natal diagnostic techniques
including ultra-sound for the purpose of determining the sex of a fetus.
​ Sec.(s) 5 and 6 prohibit the determination or communication of the sex of the
fetus. While sex-selection techniques are strictly prohibited as they are
considered to have no medical indication-natal diagnostic techniques can be
used only for the purposes specified under this Act.
​ According to Sec. 5(2) any qualified person conducting pre-natal diagnostic
procedure shall not communicate by words, signs, or in any manner the sex of
the fetus to the pregnant women or her concerned relative.
​ Offences and Penalties
​ Under this Act it is an offence to advertise techniques used for the purpose of
sex-determination. People who contravene the provisions of this Act are liable
to serve prison time and a fine-

3. But women who have been forced to by their husband or family to

undergo pre-natal diagnostic techniques will not be prosecuted
under this Act.
 4. If the woman was compelled by her husband or relative to
undertake such diagnosis techniques. Such person shall be liable
for abetment of offence under Sec. 23(3) of the Act.
5. Companied and people in the position of responsibility in
companies can also be charged for violation of this Act.

​ Statutory Provisions
​ If any service provider (unit owners, medical professionals, employees of units
who renders professional/ technical services) breaches the provisions of the
Act/Rules shall be liable to the imprisonment for a term which may extend to 3
years and a fine which may extend to Rs. 10,000. And For subsequent
offences, imprisonment may extend to 5 years and fine up to Rs. 50,000.
​ The Appropriate Authority shall report the name of the registered medical
practitioner to the State medical Council for taking the necessary action which
includes
3. Suspension of registration if charges are framed by the court and till
the case disposed of, and,
4. On conviction, for removal of his name from the register of the
Council for a period of 5 years for the first offence and permanently
for the subsequent offence.
​ Any persons seeking in sex determination tests or sex selection may be
punishable with imprisonment for a period which may extend up to 3 years
and with a fine which may extend up to Rs. 50.000. And in case of
subsequent offence, the imprisonment may extend to 5 years and fine up to
Rs. 1 lakh.
​ Any person connected with or any unit issuing advertisements for sex
determination and sex selection services shall be liable for imprisonment of
the term which may extend to 3 years and a fine which may extend up to Rs.
10,000.

​ Medical Termination of Pregnancy Act, 1971

​ Introduction
​ The Medical Termination of Pregnancy Act, 1971, is landmark legislation after
post-independence of India. As abortion has now been liberalized after the
enactment of the Act, the girls and women who are unfortunately become the
victim of sexual offence can abort the unwanted fetus. This Act has saved the
stigma of ‘unwanted mother-hood’.
​ Before 1971, abortion was criminalized under Sec. 312 of the Indian Penal
Code; 1860 and describes it as intentionally causing miscarriage. It was
punishable offense and criminalized women and providers, with whoever
voluntarily caused a woman with child to miscarry shall be liable for the
imprisonment of three years and/or a fine, and the woman availing of the
service shall be imprisoned by seven years and/or a fine.
​ Objective of the Act
​ In order to extend protection to women against illegal abortion, the Medical
Termination of Pregnancy Act has been enacted with the following objectives-
3. Abortion will be legal as a measure of health where there is a danger
to life or risk to physical or mental health of a woman;
4. On humanitarian grounds, such as pregnancy is caused as a result
of sexual offence or sexual activity with a lunatic woman;
5. Eugenic grounds, when there is a substantial risk that the child, if
born, would suffer from deformities and disease.

​ When pregnancies may be terminated

​ According to Sec.3 of the Medical Termination of Pregnancy Act 1971, a
registered medical practitioner shall not be guilty of any offence if the
pregnancy is terminated by him in accordance with provision of the Act.
Termination of pregnancy is permitted for a broad range of conditions up to 20
weeks of gestation.
​ Following are the reason for which termination is permitted
3. When continuation of pregnancy is a risk to the life of a pregnant
woman or could cause grave injury to her physical or mental health;
4. When there is substantial risk that the child, if born, would be
seriously handicapped due to physical or mental abnormalities;
5. When pregnancy is caused due to failure of contraceptives used by a
married woman or her husband (presumed to constitute grave injury
to mental health of the woman).

​ Only Registered Medical Practitioners can terminate the

Pregnancy
​ According to the Medical termination of Pregnancy Act, 1971 pregnancy can
be terminated only by a registered medical practitioner (RMP) who meets the
following requirements:
 3. The person must have a recognized medical qualification as per the
Indian Medical Council Act;
4. The person’s name must be entered in the State Medical Register as
a practitioner;
5. The person must have an experience or training as gynecologist and
obstetrical according to the Medical Termination of Pregnancy Rules

​ Place where pregnancy may be terminated

​ According to Sec. 4 of the Medical Termination of Pregnancy Act 1971, the
pregnancy must be terminated in a Government hospital or a place which is
approved by the Government for the purpose.
​ According to Section 4 of the Medical Termination of Pregnancy Act provides
the places where termination can be permitted other than these place no
termination are permitted by this act:
3. All government hospitals are by default permitted to provide CAC
services.
4. Facilities in the private sector however require approval of the
government. The approval is sought from a committee constituted at
the district level called the District Level Committee (DLC) with three
to five members.

​ Consent of the person required for termination of pregnancy

are
​ It is important to note that no pregnancy shall be terminated without the
consent of woman. As per the provisions of the Medical Termination of
Pregnancy Act, 1971-
3. Only the consent of woman whose pregnancy is being terminated is
required.
4. In the case the pregnant female is a minor i.e. below the age of 18
years, or a mentally ill woman then in that case consent of guardian
is required for termination.

​ Opinion of Registered medical practitioner is needed for

termination of pregnancy
​ According to the Medical Termination of Pregnancy Act 1971, for termination
of pregnancy up to 12 weeks, the opinion of a single Registered Medical
Practitioner is required and for terminations between 12 and 20 weeks the
 opinion of two Registered Medical Practitioners is required. However,
termination is conducted by only one Registered Medical Practitioner.
​ Protection of Action Taken in Good Faith H1
​ Sec. 8 of the Act extends protection to medical practitioners for acts done by
them under the Act. Any willful failure of the compliance of any provision of
the Act or rules made thereunder shall be punishable with fine which may
extend to Rs. 1,000.
​ As per Section 8 of the Medical Termination of Pregnancy Act 1971, when any
damage caused or likely to be caused by the registered medical practioners in
good faith then in such case no suit or legal proceedings shall be taken under
this act.

​ The Protection of Women from Domestic

Violence Act, 2005
​ Introduction
​ Domestic violence is violence or other abuse by one person against another
in a domestic setting, such as in marriage or cohabitation. Domestic violence
is also known as domestic abuse or family violence.
​ Domestic Violence is not limited to particular age, race, social class, culture or
country it is a universal. Article 1 of the Universal Declaration on Human
Rights, 1948 provides that all human are born free and in equal dignity and
rights. The resolution of the General Assembly, 1980 was 1st international
document in which domestic violence is expressly mentioned. Women in India
have never been treated well in workplace and at home.
​ The United Nations Committee on Elimination of All Forms of Discrimination
Against Women (CEDAW) in 1989 had recommended that the State parties
should act to protect women against violence of any kind especially the one
which is occurring with them within their family. Based on the said
recommendation India has enacted a law called as Protection of Women
From Domestic Violence, 2005. The Act came into force on 26th October,
2006 for protecting woman against the domestic violence.
​ Legislations Relating to Domestic Violence in India
​ Domestic Violence involves abuse of power. It is required to achieve universal
respect for the right of women. Therefore in India government adopted various
special legislations like Dowry prohibition Act, 1961, Pre- Natal diagnostic
techniques (Regulation, Prevention and Misuse) Act, 1994, Immoral trafficking
 Act 1956, and incorporated various Sectionsunder Indian Penal Code like 498
A and 304 B, Protection of Women from Domestic Act, 2005.
​ Types of Domestic Violence
​ Domestic violence arises when a family member, partner, or ex-partner
attempts to physically or psychologically dominate or harm the other. It can in
the form of physical violence, sexual abuse, emotional abuse, intimidation,
economic deprivation, or threats of violence. Apart from this confinement of
wife within four wall of the home is also a form of domestic violence.
​ Dowry death is the extreme form of domestic violence. Sec.498- A of Indian
Penal Code makes a husband and relatives liable to imprisonment up to 3
years if they subjected to women cruelty.
​ Purpose of the Protection of Women from Domestic Act, 2005
​ The Act was passed primarily to provide protection to wife or female live-in
partner from violence at the hands of the husband or male live-in partner or
his relatives, the law also extends to protect women who are sisters/ widows
or mothers.
​ Important features of the Act
3. Any conduct of husband or his relative that would lead a woman to
habitual assault or makes her life miserable would lead to domestic
violence;
4. The Judicial Magistrate First Class or the Metropolitan Magistrate
may take cognizance of domestic violence;
5. The Magistrate may inquire and order for interim relief for the
woman, he may order for compensation;
6. Protection Officers are appointed to help the victim of violence in
making application to the Magistrate and in availing her rights;
7. Such protection shall be appointed by the State Government who
shall possess the qualification as prescribed by the Central
Government. The Protection Officer shall be deemed to be a public
servant within the meaning of Sec. 21 of the Indian Penal Code.

​ Domestic Violence
​ According to Sec.3 of the protection of Women from Domestic Act, 2005
domestic violence is any act, omission or commission or conduct of the
respondent shall constitute domestic violence if
3. It harms or injures or endanger the health (mental and physical),
safety, life limb or wellbeing, of the aggrieved person or tends to do
 so which includes physical abuse, sexual abuse, verbal, emotional
and economical abuse.
4. It involves coercion and harasses or harms, injures or endangers the
aggrieved person to meet the need of any unlawful demand for
dowry or any property or valuable security.
5. It has the effect of threatening the aggrieved person or any person
related to her any conduct or otherwise injures or causes harm to the
aggrieved person
​ The protection of Women from Domestic Act, 2005 also ensures that an
aggrieved wife who is taking recourse to the law cannot be harassed for doing
so.
​ The law also provides the following measure for the aggrieved woman-
3. Any woman who is subject to domestic violence can complain;
4. Affected woman can complain to the concerned Protection Officer,
Police Officer, Service Provider or Magistrate;
5. The aggrieved woman must get free legal aid and assistance from
the Protection Officer;
6. Shelter-home and medical facilities can be provided to her;
7. Interim compensation must be made available to her;
8. Proceedings of the complaint if required and requested can be held
in camera;
9. She has a right to reside in a shared house-hold;
10. From the order of the Magistrate and appeal to the Sessions Court
can be made within 30 days

​ Women covered under the domestic violence Act, 2005

​ Protection of Women from Domestic Act, 2005, covers wide range of
domestic violence and covers all ages, all types of women. According to the
Sec.2(f) of the Act, covers women who may be mother, sister, daughter-in law,
sister in law, wife, widow, or partners live with abuser with live-in relationship,
including bigamous and adulterous relations and living in a shared
house-hold. It also includes relationship may be in the nature of marriage or
adoption, family member living together as a joint family.
​ Any person may file a complaint on behalf of the aggrieved woman. A child is
also entitled to relief under the protection of Women from Domestic Act, 2005,
the mother of such child can make an application on behalf of her minor child,
 and in the case where mother makes an application to the Court then the
children can also be added as co-applicant.
​ Respondentunder the Domestic Violence Act, 2005
​ An aggrieved woman may file a complaint against any adult male member
who is or has been in domestic relationship with her. In the case of
relationship in the nature of marriage she can file complaint against a relative
of the husband or the male partner who may be father in law, brother in law.
​ In the case of Ashish Dixit vs. State of UP & Anr [AIR 2013 SC 1077], The
Supreme Court has held that a wife cannot implicate one and all in a
Domestic violence case. In this case, the complainant apart from arraying the
husband and in-­laws in the complaint had also included all and sundry as
parties to the case, of which the complainant didn’t even know names.
​ Reliefs under the Protection of Women from Domestic Act,
2005
​ This Act is comprehensive Law to protect right of aggrieved women and
provide appropriate civil remedy to her.
​ Following are the reliefs which can be given to the aggrieved woman by the
Court-
3. Monetary Relief
​ Sec. 20 of the Protection of Women from Domestic Act, 2005, monetary relief
may be granted to the aggrieved person at any stage of the hearing. The
Magistrate shall have the power to order an appropriate lump sum payment or
monthly payments of maintenance as the case may require.
3. Counseling
​ The Magistrate may, at any stage of the proceedings direct the respondent or
aggrieved person either singly or jointly to undergo counseling with any
member of service provider.
3. Protection order
​ The Magistrate after giving the aggrieved person and respondent an
opportunity of being heard, if satisfied that domestic violence has taken place
or likely to take place may order in favour of aggrieved person which prohibits
the respondent.
3. Custody Order
​ The Magistrate may grant temporary custody of child/children to the aggrieved
person, if necessary, the arrangements for visit of such child by the
 respondent. But if Magistrate is of the opinion that any visit of the respondent
may harm the interest of the child then Magistrate shall refuse to allow such
visit.
3. Compensation Order
​ On application by the aggrieved person the Magistrate may pass an order
directing the respondent to pay compensation and damages for injuries
including mental torture and emotional distress caused by the respondent
while committing the acts of domestic violence.
​ Critical analysis of the Act
​ According to many Scholars the law against domestic violence is highly prone
to get misused, for example Sec. 498-A of Indian Penal Code, as it is always
assumed that woman is right and would never speak lie which at time is a
wrong presumption.
​ In the case of Sushil Kumar Sharma v. Union of India & Others [AIR 1997 SC
3011]- The Supreme Court of India stated that Sec. 498A of IPC is being
misused as ‘legal terrorism’ and asked the Government to plug the loopholes
of the provision.
​ The critics believe that this provision supports broken marriages and genuine
cases still go unreported and out of the knowledge. Husbands seek divorce
on the ground of harassment which is not in the interest of the society.
​ The Act is merely an Anti-Domestic Violence move which is succeeded in its
objective up to some extent. It can also be said that the Act would help in
mitigating the gender inequality to a great extent and strengthen the cause of
woman empowerment in India.

​ Criminal Law Amendment Act, 2013

​ Introduction
​ The Criminal Law (Amendment) Act, 2013 was passed in the 2013, which
provides for amendment of Indian Penal Code, Indian Evidence Act, and
Code of Criminal Procedure, 1973 on laws related to sexual offences.
​ Changes in law
​ According to the Criminal Law (Amendment) Act, 2013-

3. Sec. 370 of Indian Penal Code (IPC) has been substituted with
new Sec.(s) 370 and 370A which deal with trafficking of person for
exploitation, provides that if a person recruits, transports, harbours,
transfers, or receives, a person, by using threats, force, coercion,
 abduction, fraud, or deception, or by abuse of power, or
inducement for exploitation including prostitution, slavery, forced
organ removal, etc. will be punished with imprisonment which may
extent to at least 7 years to imprisonment for the remainder of that
person’s natural life depending on the number or category of
persons trafficked.
4. The definition of the rape under the Indian Penal Code has been
changed. Sec. 375 deals with the 'rape’, and the word rape and
was extended to include acts in addition to vaginal penetration.
The definition is broadly worded with acts like penetration of penis
into the vagina, urethra, anus or mouth; or any object or any part of
body to any extent, into the vagina, urethra or anus of another
woman or making another person do so; to apply mouth or
touching private parts constitutes the offence of sexual assault.

​ Except in certain aggravated situations the punishment of such offence

is imprisonment not less than seven years but which may extend to
imprisonment for life, and shall also be liable to fine. In aggravated
situations, punishment will be rigorous imprisonment for a term which
shall not be less than ten years but which may extend to imprisonment
for life, and shall also be liable to fine.

3. A new Sec. 376A has been added to the Indian Penal Code which
states that if a person committing the offence of sexual assault
which causes injury or which causes the death of the person or
causes persistent vegetative state (extensive and irreversible brain
damage) shall be punished with rigorous imprisonment for a term
which shall not be less than twenty years, but which may extend to
imprisonment for life, which shall mean the remainder of that
person’s natural life, or with death.
4. Persons involved in the gang rape regardless of their gender shall
be punished with rigorous imprisonment which shall not be less
than twenty years, but which may extend to life and the that person
shall pay compensation to the victim which shall be reasonable to
meet the medical expenses and rehabilitation of the victim.

​ In the Criminal Law Amendment Act, 2013, the age of the giving consent for
sexual activity has been increased to 18 years which provides that any sexual
 activity irrespective of presence of consent with a woman below the age of 18
will constitute statutory rape.
​ Certain changes have also been introduced in the Criminal Procedure Code
and Evidence Act, in which the process of recoding statement of the victim is
more victim friendly and easy.
​ The two most important changes which has been introduced in the Criminal
Law Amendment Act, 2013 are-
3. Character of the victim is now considered to be irrelevant.
4. It is now presume that no consent has been given in case of sexual
intercourse is proved and the victim in the Court states that she did
not consent.

​ New Offences
​ The Criminal Law Amendment Act has recognized certain acts as offences;
such new offences have been incorporated in Indian Penal Code are-

Secti Offence Description Punishment

o
n

Sec. Acid This offence is a

3 Attack gender neutral ● Impri
2 and protect both sonm
6 male and female ent
A victim. not
less
than
10
years
● It
may
exten
d to
impri
sonm
ent
for
life
and
with
fine
whic
h
shall
be
just
and
reas
onabl
e to
meet
the
medi
cal
expe
nses
and it
shall
be
paid
to
the
victi
m
Sec. Attempt This offence is a
3 to acid gender neutral ○ Impri
2 attack and protect both sonm
6 male and female ent
B victim not
less
than
five
years
○ It
may
exten
d to
seve
n
years
, and
shall
also
be
liable
to
fine
Sec. Sexual This Section only
3 Haras protects ● Rigor
5 sment women’s the ous
4 provision impri
A includes: sonm
ent
i. Physica
up to
l
three
contact
years
and
, or
advanc
with
es
fine,
involvin
or
g
with
unwelc
both
ome
[For
and
offen
explicit
ces
sexual
menti
overtur
oned
es
unde
ii. A
r (i)
demand
to
or
(iii)]
request
● Impri
for
sonm
sexual
ent
favours
up to
iii. Forcibly
one
showin
year,
g
or
pornogr
with
aphy’s
fine,
iv. Making
or
sexually
with
coloure
 d both
remark [For
v. Any offen
other ces
unwelc menti
ome oned
physical unde
, verbal r (iv)
or & (v)]
non-ver
bal
conduct
of
sexual
nature.

Sec. Act with Protection to

3 intent women against ● Impri
5 to anyone who – sonm
4 disrob ent
B ea 1. Assault not
woma
s; less
n
2. Uses than
criminal three
force years
● It
To any woman or
may
abets such act
exten
with the intention
of disrobing or d to
compelling her seve
to be naked n
years
and
 with
fine

Sec. Voyeuris Includes watching First Conviction

3 m or capturing a
5 woman in
● Impri
4 “private act”
C sonm
ent
not
less
than
1
year
● It
may
exten
d to
3
years
and
fine.

Second
Conviction

● Impri
sonm
ent
for a
term
not
less
than
 three
years
● It
may
exten
d to
seve
n
years
, and
fine

Sec. Stalking
1. To ● Impri
3
5 follow a sonm
4 woman ent
D and whic
contact, h
or may
attempt not
to be
contact less
such than
woman one
to foster year
persona ● It
l may
interacti exten
on d to
repeate three
dly years
even , and
though fine
the
women
 is not
interest
ed.
2. Monitor
women
by the
use of
the
internet,
email or
any
other
form of
electron
ic
commu
nication

​ Terrorism
​ Introduction
​ Terrorism is the unlawful use of force or violence against persons or property
to threaten or compel a Government or its citizens to further certain political or
social objectives. The common definition of Terrorism is the systematic use or
threatened use of violence to intimidate a population or government for
political, religious, or ideological goals.
​ International Terrorism is not a new phenomenon. The word “Terrorism” is
used during the French Revolution of 1789 is used to describe the conduct of
revolutionaries. Even though the presence of terrorism in domestic and
international life is long lasting, there is no definition of terrorism till present
which has been comprehensive, concise and universally accepted.
​ Definition of Terrorism
​ Terrorism can be defined as an unlawful use of violence and intimidation,
especially against civilians, in the pursuit of political aims.
​ Nature of Terrorism
​ The word Terrorism is popularly refers to an act that is wrong, evil, illegitimate,
illegal, and a crime. The term has come to be used to describe a wide range
of violent and sometimes not-so violent, conduct. Acts which are determined
as terrorist in nature can occur both in conflict and peace-time. The Act of
Terrorism is motivated by a complex environment of reasons and ideals.
Terrorism may be domestic and international, and may constitute a crime in
domestic as well as international Law.
​ As Hegel observed that about the master- slave relationship, the possibility of
exchange of roles always exists. Applied terror and terrorism as function of
domination alters the human relation between the parties. Hegel saw this as a
dialectical exchange with social as well psychological complications.
​ Causative Factors
​ Terrorism is not in one form it can take many forms and has many causes. It
can have its roots in religious, social, or political conflicts, specially, when one
community is oppressed by another.
​ There are different forms of terrorism, and each form has its own causes.
Some of the factors are defined as under-

3. Economic Factor
4. Political Factor
5. Social Factor

​ Economic Factor
​ Terrorism also caused because of Poverty. Deprivation of resources and
opportunities can create hatred and cause some to turn to terrorism in order
to express their anger. There are varieties of factor that can be used to
measure poverty including social inequality, low GDP, and low literacy or
education levels, other sources are population, unemployment rates, and
inflation.
​ The economic factors such as rural unemployment, the absence of land
reforms, exploitation of poor laborers by landowners etc. have given rise to
ideological terrorist groups such as the various Marxist/Maoist groups
operating under different names.
​ Hamilton stated that terrorism has arisen among rich and poor, oppressive
and relatively unoppressive societies. It has been used to promote causes
with no popular support as well as causes endorsed by a large majority.
​ Clutter Buck and Lacquer feel that terrorism does not emerge due to poor and
exploited but it emerges due to ideal elites and unparalleled affluence rather
than the desperate poverty.
​ According to the Aristotle and Marx, the principle cause of revolution is the
aspiration for economic or political equality on part of common people and
people were exploited on both level i.e. economic and political.
​ According to Gurr, “Economic values are more salient for most people than
other values because some minimal level of economic good is necessary for
continued physical existence.”
​ Political Factor
​ Political factors like Government suppression leads to terrorism. Government
repression is political rights and civil liberties, unstable, and undemocratic
societies form weak governments due to which people of the nation suffers.
Human rights abuses would also fall into this category since this is a direct
result of government action, and would then be considered a form of
repression. Human rights violations, like dispossession and humiliation which
create severe grievances against the government.
​ Dr. A.S. Anand said that “political ambitions of parties, the party leaders and
established ideological groups also promote terrorism.” With emergence of
democratic system, political aspirations of masses have arisen but there has
been evidence where those aspirations were not allowed in politics or proper
participations were not given.
​ When the Government is unable to provide basic standard of living, citizens
become unsatisfied, which results in recruiting terrorist organizations. It is the
duty of the Government to provide the necessary resources for the people to
survive.
​ Repression can also appear in more violent forms. A United Nations General
Assembly resolution in 1985 found that one of the underlying causes of
terrorism was racism and massive human rights violations. When a State has
very low respect for human rights, the citizens are more likely to have
grievances with those in charge.
​ In order to right the wrongs of the Government, citizens may turn to terrorism.
Terrorist organizations can provide the necessary resources to their members
to fight against political wrongdoings. Due to all such factors it’s proved that
Government repression contributes to the presence of terrorism.
​ Social Factor
​ Some possible factors which are related to Terrorism are social factor, which
are as under-

3. Human development includes per capita income, life expectancy,

and education, which are accounted in regards to terrorism and it
shows that there is co-relation between terrorism and Human
Development.
4. Another social aspect is religion. Enormous increase in religious
extremism, increase in the scale of violence, and the expanded
global reach has been seen in the modern Terrorism.

​ Religious terrorism can be defined as political violence that is motivated by an

absolute belief that other-worldly power has sanctioned, or sometimes
includes, terrorist violence for the greater glory of the faith. People who take
part in the religious terrorism believe that any acts committed by them will be
forgiven and possibly rewarded in the afterlife.
​ There are many different forms of religious terrorism, but the most common is
Islamic extremism. Recently there has been a dramatic increase in religious
terrorism. It is one of the main contributors to terrorism globally.
​ Funds of Terrorism
​ Fund of Terrorism is also termed as terrorism financing. Activities that provide
the finance or financial support to either individual terrorists or non- state
terrorist referred to as terrorism financing. A Government generally maintains
a list of terrorist organizations and passes a law to prevent money laundering
being used to finance those organizations.
​ In India currently, the UAPA (Unlawful Activity Prevention Act) is the primary
anti-terrorism law in force in India. This law was enacted by Parliament in
1967 to enable the imposition of reasonable restrictions on the rights to
freedom of speech and expression, peaceful assembly, and formation of
associations or unions in the interest of sovereignty and integrity of India.
​ In 2013 UAPA (Unlawful Activity Prevention Act) was amended under which
the financial activities relating to terrorism has been penalized. In this
amendment the concept of offences threatening economic security under
Sec.15 of the terrorist act including the smuggling of ‘high value’ counterfeit
currency will rise to the activity of economic terrorism.
​ Sec. 17 of the amended UAPA, 2013, criminalizes the funding of terrorist
activities. It expanded the scope with regard to the activities as well as the
purpose for which financing has been done.
​ Amendments made to the Act related to terrorism financing have been
significantly broadened the scope of Sec. 17, it introduced an element of
uncertainty, especially given the ‘likelihood’ test. However under Sec.15 of the
UAPA, the ‘economic security’ of the country was protected.
​ Kinds of Terrorism
​ In India an act of terror includes any intentional act of violence that causes
death, injury or damage to the property, induces fear, and is targeted against
any group of people identified by their political, philosophical, ideological,
racial, ethnic, religious or any other nature.

3. Ethno-nationalist terrorism
4. Religious terrorism
5. Left-wing terrorism
6. Narco-Terrorism

​ Depending on the country, the political system, and the time in history, the
types of terrorism are varying. In India terrorism is subdivided in four major
groups:
3. Ethno-nationalist terrorism

4. Creating a separate State within India or independent of India or

in a neighboring country, or
5. Providing special importance to the views or the response of one
ethnic group against another. For Example: Violent Tamil
Nationalist groups from India to address the condition of Tamils in
Sri Lanka, as well as insurgent tribal groups in North East India.

6. Religious terrorism
​ Religious terrorism deals with the religious essentials a presumed duty
towards religion, or in harmony for a specific religious group, against one or
more religious groups. For Example: Terror attack on 26/11in 2008 in Mumbai
from an Islamic group in Pakistan.
3. Left-wing terrorism
​ Left-wing terrorism deals with terrorism relating to the economic ideology, in
which all the existing socio-political structures are seen to be economically
exploitative in character and a revolutionary change through violent means is
essential. The ideology of Marx, Engel, Mao, Lenin and others are considered
as the only valid economic path. For example: Maoist violence in Jharkhand
and Chhattisgarh.
 3. Narco-terrorism
​ Narco-terrorism focuses on creating illegal narcotics traffic zones. For
Example: Drug violence in northwest India.
​ Other forms of terrorism that prevails in India are as under-

3. Non-political terrorism

​ It may be defined as a terrorist act which is perpetrated by a group for any

other purpose, most often of a religious nature. Their desired goal is other
than a political objective however the tactics and ideology involved are the
same.

3. Quasi terrorism

​ It is a violent act that utilizes different methods to employ terrorists however it

does not have the same motivating factors. For example- An armed criminal
who is trying to escape from law enforcement utilizing civilians as hostages to
help them escape. The law breaker is acting in a similar manner to a terrorist,
but goal is different and not terrorism.

3. Limited political terrorism

​ These acts are generally one time only plots to make a political or ideological
statement. The purpose is not to overthrow the Government it aims to protest
a Governmental policy or action.

3. State terrorism

​ It may be defined as any violent action initiated by an existing Government to

achieve a particular goal. Most often this goal involves a conflict with another
country.
​ Terrorist and Disruptive Activities TADA
​ TADA was the first anti-terrorism law legislated by the government to define
and counter terrorist activities. TADA was in force between 1985 and 1995
(modified in 1987) under the background of the Punjab insurgency and was
applied to whole of India.
​ Terrorist act under Terrorist and Disruptive Activities, 1987
​ Sec. 3(1) of the TADA provides ‘Punishment for terrorist acts’ as-
​ “Any person with the intent to strike terror in people or any section of people
or adversely affect the harmony amongst different section of the people by
using by using bombs, dynamite or other explosive substances or
inflammable substances or fire-arms or other deadly weapons or poisons or
 noxious gases or other chemicals or by any other substances, which cause or
likely to cause death or injuries to any person or persons or loss, damage or
destruction of property or disruption of any supplies or services essential to
the life of the community or detains any person and threatens to kill or injure
such person in order to compel the Government or any other person to do or
abstain from doing any act, commits a terrorist act.”
​ Punishment for terrorist acts under TADA

Illegal Acts Punishments

Any person who commits terrorists Shall be punishable with death or

act and such act resulted in imprisonment of life and fine
death of any person

Person committing terrorist act Shall be punishable with

imprisonment for a term which
shall not be less than five
years but which may extend to
imprisonment for life and also
be liable to fine

Any person who conspires, Shall be punishable with

attempts to commit, advocates,
abets, advises or provoke or
knowingly facilitates the
commission of a terrorist act or
any act which are related to a
terrorist act
imprisonment for a term which
shall not be less than five
years but which may extend to
imprisonment for life and shall
also be liable to fine

Any person who harbours or Shall be punishable with

conceals, or attempts to
harbours or conceal any
terrorist
imprisonment for a term which
shall not be less than five
years but which may extend to
imprisonment for life and shall
also be liable to fine.
 Any person who is a member of a
terrorist’s gang or a terrorist’s
organization which is involved
in terrorist acts
Shall be punishable with
imprisonment for a term which
shall not be less than five
years but which may extend to
imprisonment for life and shall
also be liable to fine

Any person who acquire any Shall be punishable with

property obtained from
commission of any terrorist act
or has been acquired through
the terrorist funds
imprisonment for a term which
shall not be less than five
years but which may extend to
imprisonment for life and shall
also be liable to fine

​ The Prevention of Terrorism Act, 2002 [POTA]

​ Chapter II of the Prevention of Terrorism Act deals with the Punishment for
and Measures for dealing with Terrorist Activities.
​ Terrorists acts
​ According to Sec. 3 explains terrorists act as-

3. An act committed with the intent to threaten the unity, integrity,

security or sovereignty of India or to strike terror in the people or
any section of the people by using bombs, dynamite or other
explosive substances or inflammable substances or firearms or
other deadly weapons or poisons or noxious gases or other
chemicals or by any other substances.
4. An Act which cause, or likely to cause, death, injuries to any
person or persons, loss, damage or destruction of property or
disruption of any supplies or services essential to the life of the
community or causes damage or destruction of any property or
equipment used or intended to be used for the defence of India or
in connection with any other purposes of the Government of India.
5. If Any State Government or any of their agencies, detains any
person and threatens to kill or injure such person in order to
compel the Government or any other person to do or abstain from
doing any act.
 6. If any person is or continues to be a member of unlawful
association declared under the Unlawful Activities (Prevention)
Act, 1967.
7. If any person or group of person voluntarily does an act which aid
or impose any unlicensed firearms, ammunition, explosive or other
instrument or substance which may cause mass destruction and
commits any act resulting in the loss of human life or grievous
injury to any person or causes significant damage to any property.

​ Punishment for Terrorist Act under the Prevention of Terrorism

Act, 2002

Illegal Acts Punishments

Whoever commits a terrorist act

1. If such act has
resulted in the death
of any person, be
punishable with death
or imprisonment for
life and shall also be
liable to fine;
2. In any other case, be
punishable with
imprisonment for a
term which shall not
be less than five years
but which may extend
to imprisonment for
life and shall also be
liable to fine.

Whoever conspires or attempts to Shall be punishable with

commit, or advocates, abets, imprisonment for a term which
advises or incites or knowingly shall not be less than five
facilitates the commission of, a years but which may extend to
 terrorist act or any act
preparatory to a terrorist act
Whoever voluntarily harbours or
conceals, or attempts to
harbour or conceal, any person
knowing that such person is a
terrorist
Any person who is a member of a
terrorist gang or a terrorist
organisation, which is involved
in terrorist acts
Whoever knowingly holds any
property derived or obtained
from commission of any
terrorist act or has been
acquired through the terrorist
funds
Whoever threatens any person
who is a witness or any other
person in whom such witness
may be interested, with
violence, or wrongfully
restrains or confines the
witness, or any other person in
whom the witness may be
interested, or does any other
unlawful act with the said intent
​ Criticism
​ Lord Denning expressed that; the freedom of individual must take second
place to the security of the State. Recently, it was said that the international
imprisonment for life and shall
also be liable to fine
Shall be punishable with
imprisonment for a term which
shall not be less than three
years but which may extend to
imprisonment for life and shall
also be liable to fine
Shall be punishable with
imprisonment for a term which
may extend to imprisonment
for life, or with fine which may
extend to rupees ten lakh, or
with both
Shall be punishable with
imprisonment for a term which
may extend to imprisonment
for life, or with fine which may
extend to rupees ten lakh, or
with both
Shall be punishable with
imprisonment which may
extend to three years and fine
 community could not fault India if it chose to enact tough measures to deal
with the threat of terrorism.
​ Terrorism has been mainly used as a weapon against Government that
involves pre-meditated attacks with arms, ammunition and explosives against
the civilians of India. Following are the loopholes which prevail in India and
which act as hurdle in dealing with terrorism in India-
3. The problem of terrorism becomes insoluble when individuals acting
under a committed terrorist organization are willing to be killed while
killing civilians in an indiscriminate manner.
4. The terrorists are not only threatening the ideals of democracy and
freedom but also causing a serious challenge to the existence,
progress and development of mankind.
5. There is need for stringent provision for prevention of terrorism.
6. The culprit should not go scot-free just because of loopholes or
lacunas prevailing under the Act.
7. The need for special laws to combat terrorism cannot be under
estimated.
8. The problem lies with the implementation of laws and the abuse of
powers conferred on the authorities under the special laws.
9. The Anti- terrorism legislations also failed in providing punishment to
the terrorists.
​ Suggestions
​ India must also enact stringent laws to curb the terrorist activities likes other
countries are doing.

3. After the attack of 9/11, USA enacted the PATRIOT Act, which
gave sweeping powers to the domestic law enforcement and the
intelligence agencies. It modified the procedures that protected the
confidentiality of private communications, reinforced the curbs on
money laundering, prevented alien terrorists from entering the US
and enhanced the penalties for acts of terrorism.
4. UK passed an Anti-Terrorism Crime and Security Act, 2001, which
provides additional powers to the police and reinforced the security
of airports and laboratories. It even allowed the internment of
foreign nationals suspected of involvement in all this shows that
even after violation of human right and misuse of the laws to fight
from terrorism there is need anti-terrorism legislation.
​ Anti – Terrorists Measures
​ In the last two decades Terrorism in India has grown to a great extent. The
bomb blasts and terrorist attack in many cities like Jaipur, Ahmadabad,
Bangalore, and Mumbai on 26/11and Pune on 14/2/2010. The techniques and
methods adopted by terrorist groups and organization take advantage of
modern means of communication and technology using high tech facilities
available in the form of communication system, transport, sophisticated arms
and various other means.
​ The criminal justice system of India like Criminal Procedure Code (Cr.P.C.)
was not designed to deal with such type of heinous crimes. In view of this
situation it was felt necessary to make special anti-terror laws for giving
rigorous punishment for such enmity of the humanity.
​ There are many laws are made in India but such laws were protested on the
basis of the violation of fundamental rights of the people. But after Mumbai
attack on 26/11 it was felt that there is need to much stringent law to end up
the terrorist activities.
​ India is an “important partner” of the United Nations in countering terrorism
and preventing violent extremism. The Government of India’s contribution to
the United Nations Trust Fund for Counter-Terrorism will support the execution
of capacity-building projects by the United Nations Office of
Counter-Terrorism. Plans are there for cooperation between India and the
United Nations on strengthening capacity in the areas of countering terrorist
financing and on the use of advance passenger information.
​ Laws related to terrorism in India
3. Unlawful Activities (Prevention) Act, 1967
​ The Unlawful Activities (Prevention) Act, 1967 is popularly known as UAPA.
This Act deals with ‘unlawful activities’. This Act defines unlawful activity, as
any action by an individual or association which is intended to bring about
cession/secession or such action as to disrupt or question the sovereignty and
territorial integrity of India.
​ The Act is strictly limited to resolve the challenge to the territorial integrity of
India. The provision of the Act declares the secessionist associations as
unlawful, adjudication by a Tribunal, control of funds and places of work of
unlawful associations, penalties for their members etc. The Act is completely
within the purview of the central list in the 7th Schedule of the Constitution.
3. Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)
​ The Terrorist and Disruptive (Prevention) Act was the second major which
came into force on 3rd September 1987. As compared to UAPA this has much
more stringent provisions. This is specially designed to deal with terrorist
activity in India. The Act introduced unprecedented provisions having
overriding effect over the Criminal Procedure Code and the Constitution in
many written and unwritten ways.
​ Earlier TADA was challenged before Apex Court of the country as being
unconstitutional. But in the case of Kartar v. State of Punjab [1994 Cri. L.J
3139], Supreme Court upheld its constitutional validity on the assumption that
those entrusted with such a strict statutory powers would act in good faith
and for the public good. However this Act has been misused, important
provisions of the Act were abused by the law enforcement officials. The
Terrorist and Disruptive (Prevention) Act was lapsed in the year 1995.
3. The Maharashtra Control of Organized Crime Act, 1999
(MCOCA)
​ The Maharashtra Control of organized Crime Act, 1999 (MCOCA) was
enforced in the year 1999. The Act was mainly enacted to deal with the rising
organized crime in Maharashtra and especially in Mumbai due to the under
World.
​ The Act deals with the evils like illegal trade of narcotics, kidnapping,
collection of protection money etc. According to this Act a person is
presumed guilty unless he is able to prove his innocence. This Act includes
promotion of insurgency as a terrorist act in this organized crime is also
mentioned. MCOCA does not specify prosecution of police officer found guilty
of its misuse.
3. Prevention of Terrorism Act, 2002 (POTA)
​ This Act was enacted by the Parliament in the year of 2002; the Act was
enacted due to several terrorist attacks that took place in India especially the
attack on the Parliament.
​ Sec. 3 of the POTA define terrorist and terrorist act. Special power has been
granted to the investigation authorities under this Act. The Act provides the
legal framework to strengthen the hands of the administration to fight against
the menace of terrorism. It should be applied against such persons and acts
which are covered by the provisions of the Act and it is not meant as a
substitute for action under ordinary criminal laws.
​ The constitutional validity of the Act was discussed in the case of People’s
Union for Civil Liberties v. Union of India [AIR 2003 SC 2363],the Court held
that as per the Constitution of India, Parliament possess power under Article
248 and Entry 97 of List 1 Seventh Schedule.
​ To ensure that the power has not been misused and violation of the human
rights has been take place some specific safeguard have been put together in
the act which are:

3. Without taking previous sanction of Central Government /State

Government no Court can take cognizance of any offence.
4. Officer lower in rank of the Deputy Superintendent of Police cannot
investigate offences under the Act.
5. Confession made by a person before a police officer not below the
rank of Superintendent of Police is admissible as evidence. But
such person shall be produced within 48 hours along with his
confessional statement before a Magistrate

​ Any officer who exercises powers or malicious purpose or with malafide

intentions shall be punished under this Act. A person who has been corruptly
or maliciously proceeded such person shall be provided with the award of
compensation.
3. Unlawful Activities (Prevention) Amendment Act
​ It is an Act which aims at effective prevention of unlawful activities which are
prevailing in India. The main objectives of the Act were to make powers
available to deal with activities directed against the integrity and sovereignty
of India. This Act was amended in 2004; most of provisions of POTA were
re-incorporated.
​ The most recent amendment was held in 2012 to the Act. The definition of
“terrorist act” was expanded to include offences that threaten economic
security, counterfeiting Indian currency, and procurement of weapons, etc.
Additional powers were granted to Courts to provide for attachment or
forfeiture of property equivalent to the value of the counterfeit Indian currency,
or the proceeds of terrorism involved in the offence.

​ Communal Violence
​ Introduction
​ Earlier it was thought that the partition of the country would resolve the
problem of communal violence. But it was proved that the hope of country
 without communal violence is false. In communal violence several causes and
multiplicity of factors are involved each of these factors, individually and
collectively, contributes to creating the communal passion in which even the
mildest of provocations erupts into irrational violence.
​ Communal violence involves people belonging to two different religious
communities mobilized against each other and carrying the feelings of
hostility, emotional fury, exploitation, social discrimination and social
neglect.To fight communalism and stop communal violence, it is necessary to
know the causes behind communal violence.
​ Paul Brass defines riot as a “violent disturbance of peace by an assembly or
body of persons” and a pogrom as “an organized massacre”.
​ The causes responsible for the communal violence are:
3. General Causes
​ The process of communal violence is very complex. The general causes for
communal violence in India are-
3. Divide and Rule
​ British ruler adopted the divide and rule policy in India due to the antagonism
between Hindu and Muslims. This policy had sown seeds of dispute between
the communities, who involved in serious conflict posing threat to the security
of the nation. After the revolt of 1857, the British rulers started to divide
different communities on communal lines, particularly Hindus and Muslims.
3. Partition of Bengal and Swadeshi Movement
​ Since the division of Bengal in 1905 the Hindu-Muslim antagonism has been
started. Another factor of creating gap between two communities by the
British rulers was partition of Bengal and Swadeshi movement. The Britishers
wanted to cut the source of Indian nationalism and therefore they started
dividing the people of the region into two different communities. They divide
the Bengal in Eastern Bengal and Western Bengal. Eastern Bengal consists
of Muslims in majority while in Western Bengal Hindus were in majority.
​ As a result the majority community took hostile attitude towards the minority
community. Due to this unfriendly attitude the Swadeshi Movement has been
started. And while opposing the partition of Bengal several riots took place.
3. Partition of the Country
​ After post independent the partition of the country also create the bitterness
and communalized political process in India. After the partition Muslims were
minority in India and Hindus and Sikhs were minority in Pakistan.
3. Class Conflict
​ In India communal identity and division has always passed through Indian
Society. Communalism is one of the by-products of Colonial under
development of the Indian economy. The rise of modern politics and social
classes occurred in the same period and the crises of Colonial economy
began to be largely felt. The reason for the growth of internal division and
antagonism within society are Colonial economy, underdevelopment and
failure to develop economy of the country.
3. Communal Conflicts and Conflicts of Interest
​ Beside the communal conflicts between the two communities there are also
which sharpen the religious conflicts. Religious conflict may in fact is used to
cover the conflict of interest. Communal conflicts are used as medium for
communities to assert their communal identities and to demand their share in
economic, educational and job opportunities.
3. Political Factor
​ In most of the cases communal violence has been motivated from political
factor. A political factor like usage of ancient identities, money and muscle
power, communal slogans, doctrinaire issue, etc., has been increased. To
achieve maximum political gain such short cuts have been adopted by them.
Before partition the major cause of communal conflict was the struggle
between the Hindu and the Muslim leaders for political power as well as
control of economic resources in the nation.
​ Communalism and communal conflicts are means of Political assertion.
Politics in general is a process of conflict resolution. The effort of each political
group is to acquire as much political power as possible and to enhance the
community or caste interests.
3. Socio Political issues
​ In India disputes between the trends of Hindus and Muslims takes place. uch
socio political issues also create communal violence. The principal aspect that
came to the surface was ‘cow protection’ and ‘Urdu-Devanagari’ controversy.
The social factors include social traditions, stereotyped images of religious
 communities, caste and class ego or inequality and religion-based social
stratification.
3. Economic Factor
​ Economic competition leads to social tension which can later be turn into the
communal violence. An unbalanced and exploitative economic relation is one
of the most important factors to communal violence.
​ Example:
​ Due to the economic factors communal violence occurred in Udaipur (1965 &
1966); Godhra (1980-81); Bihar Sharif (1981); Meerut and Baroda (1982) and
in the industrial belt of Bhiwandi-Thane-Mumbai (1984). Some major riots
have been developed due to the electoral politics and economic competition
during 1980.
3. Business Rivalry
​ The cause behind communal disturbance also included business rivalry.
Indian society is so much inter-dependent in its business activity that it is not
possible to visualize non-existence of give and take relationship between
various sections of the society.
​ Hindu and entrepreneurs and artisans are so much interdependent among
each other that they cannot flourish the business without each other’s
assistance and any bitterness among them affects the whole industry
adversely.
​ The economic targeting of Muslims in the Gujarat riots in 2002 gives evidence
of the divesting loss of property of the Muslim community in the state. The
anti-social elements are encouraged to attack the opposite business
establishment due to business rivalry.
3. Administrative Failure
​ The main reason for administrative failure is weak law and order. Weak laws
and order is one of causes of communal violence. There was failure of the
police in determining the intensity of communal situation in advance due to
which communal violence arises.
​ In riots like Ahmadabad and Baroda (1969), Bhiwandi (1970), Hyderabad
(1978 & 81), Bihar Sharif (1981), Bhagalpur (1989), and several other major
riots are the result of lack of administration.
3. Partisan Behaviour of police
​ Communal violence also arises due to the Partisan role of State officials
including police. The partisan attitude of police permits the petty clashes to
turn into a major communal violence. The biased behaviour of the police has
been seen many incidents including, Mumbai riots (1992- 93), Gujarat killings
and in Orissa riots (2008).
3. Rumors
​ One of the causes of communal violence is the false and exaggerated rumors
which increases the flames of the communal violence. In the case of Gujarat
killings (2002), the Gujarati press became agent provocateur. Sandesh
published false reports, rumours and biased reports, which aggravated the
flames of communal violence.
3. Lack of Communication
​ At the time of communal violence both communities does not exchange views
and opinions freely such absence of inter group communication creates
favorable situation for communal violence.
​ An individual or personal attack is sometimes misconstrued as an attack
against the entire community. As a result, people become scared and
frustrated and thereby more violence takes place.
3. Insecurity and Fear
​ Communal violence takes place when one community feels the threat,
harassment, fear and danger from the members of the other community. Lack
of interpersonal trust and mutual understanding resulting in fear and worry
among the communities. People who are living as a neighbors and
acquaintances become enemies to one another and participate in communal
violence. People do not report many communal incidents to police, as they
are afraid of personal assaults by the criminals due to inadequate protection
by police.
3. Religious Factors
​ Religious factors is the another cause of the communal violence in the Indian
society. A religious conflict arises from a belief of the superiority. Every religion
teaches its follower that the understanding and teachings of their God or
prophet is the best teaching. Due to tremendous faith in one religion and a
feeling that non-believers are generally misguided by the people who derive to
be told regarding the correct path leads to the religious conflict.
3. Trivial Causes
​ Some trivial causes responsible for communal violence and disturbance are

3. Clashing of times of prayers of different communities.

4. Cow slaughter.
5. Demarcating new places for Tazias.
6. Desecration or destruction of places of worship.
7. Disputes over places of worship.
8. Distribution of objectionable pamphlets.
9. Disturbances in religious processions/functions
10. Due to the migrated Muslims and refugees.
11. Intolerance during fairs and festivals
12. Laying the foundation for new statues
13. Marriage, eve-teasing and sexual relations between members of
the opposite groups or cases of elopement
14. Mischievous media reporting.
15. Objectionable speeches.
16. Obstructions placed during religious processions.
17. Performing Qurbani (i.e. sacrifice) in a public place.
18. Petty quarrels between members of different communities.

​ The basic cause of all communal violence is the communal atmosphere

spread throughout the country and the communal tension built up between the
two communities.
​ Prevention of communal violence
3. It is important to ensure that the minority interests are protected
along with the interests of majority without any partiality. This can
only be ensured by a well-structured and capable Police force in
the country.
4. There is a need to bring a strong “Communal Violence Prevention
Bill.”
5. Such bill is necessary to protect the interests of all the
communities affected by communal violence. The bill must also
deal with all the necessary steps to stop the communal riots
immediately.
6. There should be provisions such as rehabilitation and
compensation for the affected persons.
7. Those who instigate the communal violence must be brought to
justice and must be strictly punished.
​ In India the laws related for the prevention of communal
violence are
​ Indian Penal Code: Communal Violence
3. Sec.(s) 141 and 142 of the Indian Penal Code dealt with the
unlawful assembly and being a member of unlawful assembly.
4. Sec. 143 of the Indian Penal Code prescribes punishment for
unlawful Assembly, which explains that any person who is a
member of unlawful assembly shall be punished with imprisonment
of either description for a term which may extend to six months, or
with fine, or with both.
5. Sec. 144 speaks about joining the unlawful assembly with deadly
weapons.
6. Sec.(s) 146, 147, 148, 149 deals with rioting and punishment for
rioting is imprisonment of either description for a term which may
extend to two years, or with fine, or with both.
7. Sec. 153 deals with the provisions relating to the violence on the
grounds of religion. The violence in the religious worship place and
provides punishment for any misconduct at the place.
8. Sec.153A of the Indian Penal Code has been enacted especially to
deal with the offences related to communities or religion.

​ Provisions in the Constitution of India

​ According to Article 355 it is the duty of the Union to protect State against
external aggression and internal disturbance.

​ Crime against Marginal Group

​ Introduction
​ Criminality is a global phenomenon; with the advancement of time and
development of knowledge the complexities of life have been multiplied. It has
resulted to many anti-social elements think it profitable to embrace criminality
as a profession to earn profit through wrong ways.
​ Crimes against international law are committed by men, not by abstract
entities, and only by punishing individuals who commit such crimes can the
provisions of international law be enforced.
​ According to Dr. Walter an organized crime may be defined as an act of
unlawful misadventure which is carried by the senior member of the group.
​ Marginalized group
​ It may be defined as an experience which affects the lives of millions of
people. People who are in marginalized group have less control over their
lives, and the resources available to them. It makes them handicapped in
delving contribution to society.
​ There is lack of positive and supportive relationships and people of
marginalized group are prevented from participating in local life, which leads
to their isolation. This has a tremendous impact on development of human
being.
​ Marginalization deprives a large majority of people across the globe from
participating in the development. It is important that this complex and serious
issue must be addressed at the policy level.
​ Meaning of marginalization

Peter Leonard “Being outside the mainstream of

productive activity and/or social
reproductive activity.”

Encyclopedia of Public Health To be marginalized is to be placed

in the margins, and thus
excluded from the privilege and
power found at the center

Observation of Latin Marginality is so thoroughly

demeaning, for economic
well-being, for human dignity,
as well as for physical security.
Marginal groups can always be
identified by members of
dominant society, and will face
irrevocable discrimination.

​ ‘Marginalization’ may be defined as a process of pushing a particular group of

people to the edge of society by not allowing them an active participation.
​ Concept and characteristics of Marginalized group
​ In simple words we can say that marginalized group means people who are in
minority in a particular society.
​ Following are some of the features of the marginalized groups-
 3. They suffer from discrimination and subordination;
4. They feel neglected and disapproved by the dominant section of the
society;
5. They share common burden and feel collective when remain in their
group.
6. They share common beliefs and ideologies within their group.

​ Marginalized group: Victims

​ ‘Marginalization’ means when a certain person or a sect of people is made to
feel of lesser importance. Marginalized persons are forced to the periphery or
the edge of society.

3. Against women

​ Women face hate crimes not just because of their gender but also because of
their caste or religion. It is important for authorities to recognize the complexity
of the discriminatory motives behind these crimes, and not just record these
cases as crimes against women.

3. Disadvantaged groups in society

​ Crime and disorder significantly diminish the quality of life for many citizens.
Since the mid-1980s, there has been a growing awareness that crime impacts
most harshly on already disadvantaged groups in society.

3. Scheduled Tribes

​ Scheduled tribes are pushed out of their homes and they are forced to
migrate to different parts of the country. They face a lot of difficulties due to
their inability to mix up with society. They are illiterate, even after working hard
manual labour jobs or working in factories, they remained extremely poor.
​ Social marginalization in India can be overcome by identifying committed
non-State individual and institutions. It is important to provide support to the
marginalized group so that they can successfully contribute to the
Government’s reform and policies.
​ Victimless crimes
​ It may be defined as the crime which is illegal in nature and which directs to
involve only the perpetrator or occurs between consenting adults. This is a
crime of consensual nature and no one is considered as a victim in it. It may
be an act related to sexual behaviour or involvement in drug addiction etc.
​ Victimless crime sounds differently but there are crimes in world which are
without victim. There is no third party who is the victim in it either perpetrator
suffers in it. Victimless crime is private in nature but society is ready to
relinquish its own privacy to punish the offender in victimless crime. There is
need to prevent the victimless crime to protect the society interest, thus
society has given State power to punish such crimes.
​ Characteristics of victimless crime
​ Three characteristics can be used to identify whether a crime is victimless
crime, which are as under-
3. If the act is excessive
4. It is indicative of a distinct pattern of behavior
5. Its adverse effects impact only the person who has engaged in it
​ Many victimless crimes begin because of desire to obtain illegal products or
services that are in high demand. The supply of penalized which in turn drives
the “black market price” up creating monopoly profits for those criminals who
remain in business. This “crime tariff” encourages the growth of sophisticated
and well organized criminal groups.
​ Drugs and crime: Victimless crime
​ Compulsion for narcotic makes every drug-addict a law violator and criminal.
Possession of narcotics is also an offence which is punishable under law. The
drug addicts generally lead to criminal life. Most people become delinquent
once they start taking drugs. Drugs may result into mental impairment.
​ The National Committee on Drug Addiction was set-up by the Government of
India in 1976 to inquire into the following aspects-
3. The extent of addiction to drugs in the country;
4. To determine motivation for drug addiction;
5. To identify types of drugs that are misused and suggest steps to
prevent misused and suggest steps to prevent misuse;
6. To recommend suitable de-addiction and rehabilitation programs.
​ Classification of Drugs
​ The International Convention on Drugs to which India is a signatory has
classified drugs under two categories-

3. Narcotics Drugs- It includes- Opium; Cocoleaf; cocaine; cannabis;

hebaine
4. Psychotropic substances include valium, diazepam, morphine etc.

​ Causes of Drug Addiction

 3. Rapid industrialization and urbanization is one of the main cause of
drug abuse among the youngsters;
4. Unemployment is another factor that contributes to drug addiction
among the youngsters;
5. Lack of parental care and control amounts to drug addiction among
their children;
6. Frustration and emotional stress due to sorrows amounts to drug
abuse;
7. Social disorganization is also a contributing factor for menace of drug
abuse or misuse.

​ Indian Law
​ The Parliament enacted the Narcotics Drugs & Psychotropic Substance Act,
1985 which was later amended and renamed as the Prevention of Illicit Traffic
in Narcotic Drugs & Psychotropic Substances (Amendment) Act, 1988 which
came into force on 4th July, 1988.
​ The Act emphasized on the prevention aspect of drug evil and covers a wide
list of substances that are recognized as narcotic drugs. It prevents people
from the dangers of drug-abuse. The Act prohibits supply and distribution of
prohibited drugs which has minimum 10 years of sentence which may extend
to 20 years of punishment. The Act has no distinction between drug addict
and drug trafficker in regard to the punishment except under Sec. 27 and Sec.
64-A of the Act.
​ Sec. 27 of the Act provides that a drug addict proves that he possessed drug
of less than small quantity as notified by the Central Government and it was
for his own consumption and not for sale, then he shall be liable to be
punished which may extend to one year of imprisonment.
​ Sec. 64A of the Act provides immunity to a drug addict from criminal liability
which provides that he proves that the offence is committed for the first time
and he or she voluntarily agrees to be treated for de-addiction in a recognized
institution.
​ Sec. 71 provides for rehabilitative and reformative measures for an addict.
​ Important Case Laws related to Drug Abuse
​ Joseph Dawood Lama v. State of Maharashtra [(1990) Cr. LJ 1034]
​ In this case the conviction of the accused was confined, a foreign national
under the Narcotic Drugs & Psychotropic Substance Act, 1985 and sentenced
him to 10 years of rigorous punishment and with fine of Rs. 10,000. The
 Supreme Court further ruled that under NDPS Act the police officer taking
search is duty bound to inform the person arrested that if he so desired he
shall be searched in the presence of the Magistrate.
​ Birendra Kumar Rai v. Union of India [AIR 1993 SC 942]
​ The Supreme Court in this case held that falling under the Prevention of
Illegal Traffic in Narcotic Drugs & Psychotropic Substance Act, 1988, the
accused should be sternly dealt with under Sec. 3 of the Act and the
provisions of Article 22(5) of the Constitution of India are not attracted in such
cases. Hence, the detention of the accused under the Act shall not be held
arbitrary.
​ Modern and International Crimes
​ Computer related crimes: Cyber crime
​ The development in information technology and electronic media from 1980’s
onwards have been given rise to a new type of computer related crime called
as ‘cyber crimes’. The growth of the crimes has become a matter of global
concern and a challenge for the law enforcement agencies in the new
millennium.
​ Definition of cyber crime
​ A cyber-crime may be defined as any criminal activity that uses a computer
either as instrumentality, target and means of perpetrating further crime.
​ It is an unlawful act wherein the computer is either a tool or a target or both.
​ Reasons of cyber crime
​ Following are the various reasons for growth of cyber-crime globally-
3. The computer has the unique characteristic of storing data in a very
small space; this allows easy removal of information through physical
or virtual medium.
4. Computers are easy to access and therefore unauthorized access by
the use of cyber space is possible in an easy manner.
5. It is easy for hackers to hack the computers and misuse it.
6. The criminals find it easy to destroy the evidence easily as it is easy
to delete information from the computer in no time.
7. Negligence on the part of computer user amounts to illegal access to
criminals.

​ General Classification of computer crimes

3. Cyber crimes against persons
4. Cyber crimes against all forms of property
 5. Cyber crimes against State and society

​ Hacking
​ It is the most common form of cyber-crime in these days. The reason why
hackers indulge in such crimes may vary from monetary gain to political
benefits. It involves spoofing, e-mail bombarding, virus attacks etc.
​ Hacking means seeking unauthorized access through computer network,
web-jacking is a kind of hacking where there is forceful control of a website
someone else.
​ Email-spoofing
​ It may be defined as misrepresentation of the origin, it shows its origin to be
different from where it actually originates.
​ Computer Vandalism
​ The term ‘vandalism’ means to destroy or damage the property of another.
Computer vandalism includes any physical damage done to the computer of
any person. It is a form of theft of a computer’s data.
​ Cyber defamation
​ It is not different from conventional defamation except that it involves the use
of cyber space medium. Any derogatory statement which is intended to injure
a person’s reputation on a web-site amounts to cyber defamation.
​ Data diddling
​ This offence involves changing or erasing of data in subtle ways that makes it
difficult to put the data back. This crime is committed for illegal monetary
gains or for commission of financial crimes.
​ Information Technology Act, 2000
​ The Information Technology Act, 2000, came into force on 17th October,
2000. It has been amended in 2008 and the Amended Act has been effective
from 5th February 2009. The Rules under the Amended Act have also been
framed, which became effective from 27th October, 2009.
​ This Act was enacted in India for prevention and control of cyber-crimes. Prior
to the enactment of the Act, cyber offences were dealt by the Indian Penal
Code, 1860. After enactment of the Act, various changes were brought and
new introductions were made in the field of cyber space crimes.
​ Cyber law is important as it deals with almost all aspects of transactions and
activities related to internet, World Wide Web and cyberspace. Every action
and reaction in cyberspace has some legal and cyber legal perspectives.
Cyber law encompasses laws relating to –

3. Cyber crimes
 4. Electronic and digital signatures
5. Intellectual property
6. Data protection and privacy

​ The Act is based on UNCITRAL Model Law on e-commerce, 1996 in

furtherance of the U.N General Assembly which urges the member States to
enact or revise their cyber space laws to create a uniform environment for
regulating e-commerce at the international level.
​ Sec. 2(1)(t) of the Act defines ‘electronic record’ which means “data record or
data generated image or sound stored or received or sent in an electronic
form or micro-film or computer generated micro-fiche.”
​ This brought an amendment to the Indian Penal Code, it now includes all
offence related to ‘documents’ which shall also include offences related to
‘electronic record’ which are committed through internet/ cyber space.
​ Salient features of the I.T. Act, 2000
3. The IT Act provides legal recognition to e-commerce, which
facilitates commercial e-transactions.
4. The Act also recognises records which are maintained in electronic
form like any other documentary record.
5. It provides legal recognition to digital signatures which need to be
duly authenticated by the certifying authorities.
6. Cyber Law Appellate Tribunal has been set up to hear appeals
against adjudicating authorities
7. It includes all electronic contracts which are made through secure
electronic.
8. Security measures for electronic records and also digital signatures
are secured after the enactment of IT Act.
9. A procedure for the appointment of adjudicating officers for holding
inquiries under the Act is finalized.
10. The Act provides legal sanction and it also facilitates the electronic
transfer of funds between banks and financial institutions.
​ Various offences and punishment under the IT Act
3. Sec. 10A has been inserted to the Act with an aim to the effect that
contracts concluded electronically shall not be deemed to be
unenforceable solely on the ground that electronic form or means
was used.
 4. Unauthorised Access (Sec. 43A) has been inserted to the IT Act with
the purpose to protect sensitive personal data or information
possessed, dealt or handled by a body corporate in a computer
resource which such body corporate owns, controls or operates. It
deals with unlawful switching over a computer, using software
program, viewing content of a floppy disk etc.
5. Tampering with computer source documents (Sec. 65)- It is
punishable under IT Act, it includes illegal act such as concealment,
destroying, altering of date.
6. Hacking of computer date (Sec. 66)- Sec.(s) 66A to 66F has been
added to Sec. 66 which prescribes the punishment for offences
which includes obscene electronic message transmissions, identity
theft, cheating by impersonation using computer resource, violation
of privacy and cyber terrorism.
7. Publishing of information which is obscene in electronic form (Sec.
67)- This Section of the Act has been amended to reduce the term of
imprisonment for publishing or transmitting obscene material in
electronic form to three years from five years and increase the fine
thereof from Rs.100,000 to Rs. 500,000. Sec.(s) 67A to 67C have
also been inserted.
8. Failure to assist in decryption (Sec. 69)- This Section of the Act was
amended to give power to the State to issue directions for
interception or monitoring of decryption of any information through
any computer resource. Sec.(s) 69A and 69 B, grant power to the
State to issue directions for blocking for public access of any
information.
9. Sec. 79 of the Act which exempted intermediaries has been modified
to the effect that an intermediary shall not be liable for any third party
information data or communication link made available or hosted by
him with certain conditions added to it.

​ International crime
​ In an ever more complex and globalized world, war, terrorism and criminality
are increasingly intertwined. It leads to looting, killing, and recruitment of child
soldiers, genocide and even terrorism.
​ It further leads to cross-border crimes for example human trafficking,
kidnappings and wildlife crimes. International organizations,
 non-governmental (interest) groups and governments are confronted to deal
with the solution to prevent and respond to these criminal acts, and to deal
with their harmful consequences.
​ These crimes have been defined over time in a range of international
conventions and agreements, beginning with the first Hague Conventions at
the end of the 19th century, which established rules for military conduct during
wartime. These agreements extended criminal responsibility not just to the
direct perpetrators of a particular crime, but also to those who commanded,
planned or allowed the crimes to take place.
​ Definition of international crime
​ The term “international crime” is a collective term for certain extremely serious
violations of international law: genocide, war crimes, crimes against humanity,
torture and enforced disappearances. Other heinous crimes like slavery,
piracy, and aircraft hijacking, are not considered international crimes, despite
their having an international component.
​ Concept of international crime
​ It is a crime against international law. Following are the condition when it is
said that international crime has occurred-

3. Violation of an International Law

4. Offence is punishable under International Law
5. Treaty established liability for the act done

6. If there is a violation of a criminal norm derived out of an international

treaty and other international customary law which is binding on
individuals;
7. The crime is punishable under the International law
8. The treaty establishes a liability for the act done, and this must be
binding on majority of countries.
​ Following are the various examples of international crimes-
3. Crime against humanity
4. Crime against peace;
5. War crimes;
6. Drug trafficking, arm trafficking, money laundering etc.

​ Crime against humanity

​ It defines as the crime which is a part of widespread or systematic attack on
the civilian population. It includes deportation or forcible transfer of a
 population, torture, enslavement, rape, forced prostitution or any other
comparably grave form of sexual violence, and murder.
​ Organ Trafficking
​ Transplantation of healthy organs to the body of persons, whose organs have
failed, improves and saves thousands of lives every year. However, the
demand for organs has outstripped supply, creating an underground market
for illicitly obtained organs.
​ Organ traffickers exploit the donors to improve the economic situation of
themselves and their families. They exploit the recipients who may have few
other options to improve or prolong their lives.
​ One factor that is distinct in this form of trafficking in persons is the profile of
culprits; while some may live solely from criminal trafficking activities, others
may be doctors, nurses, ambulance drivers and health care professionals who
are involved in legitimate activities when they are not participating in
trafficking in persons for the purpose of organ removal.

Sr. Details
N
o.

1 Ahamed Siddique-Criminology Problems and Perspectives

2 Dr. M. Ponnian-Criminology and Penology

3 Dr. Rajendra K. Sharma-Criminology and Penology

4 Dr. Sirohi-Criminology

5 Paranjape-Criminology

6 Bames and Teeters-New Horizons of Crminology

 7 Sutherland-Criminology

8 Taft and England-Criminology

9 Siegel-Criminology

​
3. Sutherland, Edwin Hardin (1949) White Collar Crime. New York:
Dryden Press.
4. AIR 1999 SC 1912
Unit IV - The Police and Criminal Justice System

Course Outline of Unit IV: The Police and Criminal Justice System

This Unit contains discussion on following topics :

Police: Organizational Structure of Indian Police - Police Bureaucracy - Police
Setup - Custodial Deaths - Modernization in Police - Crime Records
Management - Traditional Vis-a-Vis Modern Crime Records Mangement -
Police Community Relations - Thana Level Committee - Police Advisory
Committees - Media and Police - Discipline and Lawlessness - Interpol.

Criminal Justice System: Objectives of Criminal Justice System - Rights of

Accused and Arrested Person - Plea Bargaining - Human Rights and
Administration of Criminal Justice.

Disclaimer: This subject content as provided under AIR Online Education Support
Suite is only Study (Reference) Material for supplementing your Academic
Classroom (Text Book) Learning. These are not Text Books on the Law Subjects.

Introduction
Police has to play a crucial role as a functionary of criminal justice; it functions to
maintain peace and enforcement of law within its territorial jurisdiction. The primary
duty of police is to safeguard the lives and property of people. Crime prevention
involves investigation of crime, maintaining law and decorum in the society,
punishing the law violators etc. Once the police frame charges against the accused,
his trial begins in the Criminal Court.

The Court records the evidence and decides whether the charges against the
accused are proved or not. After the guilt of the accused is proved, he is then
convicted by the Court and sent to the prison to undergo the term of his sentence.

The police are expected to be the most accessible, interactive and dynamic
organisation of any society. Their roles, functions and duties in the society are
natural to be varied and multifarious on the one hand; and complicated, knotty and
complex on the other. Broadly speaking the twin roles, which the police are expected
to play in a society are maintenance of law and maintenance of order.

Origin of Police
The Police are basically concerned with the maintenance of law and order and
security of person and property of individuals. It plays a major role in criminal justice.
With the change in time, police duties have increased tremendously and have
become more diverse. The modern police is duty bound to protect public against
physical dangers, regulate traffics, ensure security of high officials, preserve law etc.

The term ‘police’ has been derived from the Latin word ‘politia’ this means the
condition of a Polis or State and from the Greek word ‘Politeia’ which stands for
‘State’ or ‘administration’.

Oxford dictionary ‘Police’ means a system of regulation

for the preservation of order and
enforcement of law; the internal
Government of State

Ernest Fround Police functions generally related to

promoting public welfare by
restraining and regulating the use of
property and liberty of persons

The term ‘police’ broadly refer to purposeful maintenance of public order and
protection of persons and property, from the hazards of public accidents and the
commission of unlawful acts. It refers to civil functionaries charged with maintaining
public order and safety and enforcing the law including the prevention and detection
of crime.

Maintaining law and order in world’s largest democratic country is a difficult task. The
police personnel provide for the security of people and enforcement of laws of the
country. It determines the manner in which democratic decisions are implemented in
the country.

In view of the growing violence, social conflicts and serious threats of terrorist
activities, the role of police is becoming even more important. The assurance of
equality and dignity to the weaker sections of the society is also dependent upon the
performance of the police.

Development of Police Organisation

The beginning of civil protection against crime and disorder in England came with the
promulgation of the Edict West Minister in 1285 by King Edward I. Under this
system, local groups of property owners were responsible for the maintenance of
peace in their district. This system was prevalent in Great Britain for centuries.

th
During 18 Century United Kingdom witnessed a considerable increase in crimes of

violence. A police force was set up by the Middlsex Justice Act to arrest and
maintain a check of growing crime and criminals.

A regular system was established in England by the Act of Parliament which was
passed in 1787 for maintaining peace of Ireland. The constables were liable to
maintain law and order in the society.

The most important development in British police system was of rural police force, it
was an outcome of historical development. The police had to perform his duty the
whole day and he was never off duty. He had to do night patrolling for prevention of
crime and to maintain law and order.

Police system in America

USA came under the influence of Britain earlier; the civilians were used to perform
the function of night guard to protect crime and criminals in their society. Later, a
regular police force was set up in America by the Dougan Charter of 1886.

The modern police in America are vested with the authority of using legitimate and
justified force against the citizens. The police is authorised to use force for curbing
violence in the society.

Police force in India

Police force in India has been in existence from very ancient times. Following are the
various periods in which Police system existed and modified with a period of time-

● Ancient India
● Medieval India
● East India Company's Impact
● Modern India

Ancient India
There are references of existence of police system in epics namely, Mahabharata
and Ramayana. During Vedic period, exact references of criminal justice
organization are not available. However, Mauryan period showed important features
of criminal justice system.
Manu, who was the ancient law-giver emphasised the need to police force for
maintenance of law and order. According to him, police functions could be entrusted
to only those who were well acquainted with local people and dedicated to the cause
of protection to society against law violators.

Arthasastra of Kautilya throws light on the state of the society and the administration,
system of administrating justice and also the state of crime during that period. The
Arthasastra is a treatise on the criminal justice system. It reads like a manual for the
police in modern times. According to Arthasastra, the smallest administrative police
unit was the village.

The ancient history of Indian further reveals that there was well organised police
force during the period of ruling of ancient Hindu rulers. There were three types of
police officers, namely-

● Dandapala,
● Durgapala and
● Antpala

During Gupta period, Dandika were the highest ranked police officers. Chauro,
Dhanmika and Dandaparika were other police officers under Dandikas. Nagar
Shreshthi was responsible for peace and security of the city. Rabasika or Rahasaga
was in-charge of the secret and confidential service.

The administration system during Mauryan system was centralized while it was more
decentralized during the Gupta period. However, it may be noticed that basic
structure of police was nearly the same. The village police, the city police and the
palace police were the basic systems which was suitably developed or changed by
various Kings.

Medieval India
The Mughals in India also had well-organised police force system for maintaining law
and order in the society. The police officials were called as ‘fauzdar’ who were
in-charge of the complete police force and the number of sub-ordinate officials called
as ‘Darogas’ who had to work under the Fauzdars.

The policeman was called as Sipahi, the detective branch was also there which was
called as ‘khuphia’. The chief administrator of the Province was called as ‘subedar’
or ‘Nizam’. The Government under the Mughals was autocratic and military in nature.
It did not take responsibility or devote itself to manifold functions, as a modern
government generally does.

Police system under East Indian Company

The leading organization was the East India Company. Initially, the British presence
was maritime and commercial in character. The Company officials functioned with
the cooperation of local rulers. By early 19th century, Mughal Empire started
disintegrating. The native rulers emerged at various nooks and corners of the
country. Infighting among the native rulers and prevalence of greed & corruption
among the ruling class and several other factors paved the way for conversion of the
Company administration into a full-fledged Colonial State.

The British Government in India retained the system of police prevailing in each
Province with modifications. According to the Regulations of 1816, village headmen
were made ex-officio heads of police also. They apprehend offenders and forwarded
them to District authorities. The Police Commission of 1860 recommended the
continuation of policing with minor changes, which are as under-

a. Police functions were to be entrusted to civil constabulary separating them

from the military police;
b. The civil police administration was to be headed by an Inspector General of
Police for each Province;
c. Inspector General would be responsible to the Provincial Government
whereas the Superintendent of Police would be responsible to the Collector
of the District;
d. The village police were to be under the supervisory control of the
Superintendent of Police.

The Indian Police Act, 1861

The events of 1857 necessitated an instrument to control the vast lands at an
economical cost. After facing a real threat of losing power in 1857, the British rulers
were determined to ensure complete suzerainty and suppression of all challenges to
their power. A Police Commission was appointed in August 1860 with the aim of
making police an efficient instrument for the prevention and detection of crime.

Commission was instructed to bear in mind that functions of a police are either
protective and repressive or detective and that the line which separates the
protective and repressive functions of a civil force from functions purely military, may
not always be very clear.The primary objectives were to meet the exigencies of trade
and company profit. The emphasis was on order maintenance, on keeping the trade
routes safe and ensuring that the exploitation of resources could continue
unhindered.

The Act imposed a uniform police system on the entire country. The Act established
organized police forces the responsibility of the various provincial governments.
Within the provinces the police was to be recruited, trained, disciplined and control
by British officers.

Modern India
Modern police in India is primarily concerned with detection and investigation of
crime and apprehending criminals by making arrests. They are concerned with the
protection of the society against crimes and safeguarding the person and his
property. The Police also deal with juvenile delinquents and enforcement of various
Acts in the State.

After the Independence of India, the police system was transformed from police
State to Welfare State which has brought a radical change in the activities and
functioning of the police. The role of the police is to preserve and protect the basic
human needs which are essential for their survival.

The Police set-up

The hierarchy of police working in the State police force includes, Director General of
Police; Inspector General of Police; Deputy Inspector General of Police,
Superintendent of Police, Deputy Superintendent of Police, Circle Inspectors,
Sub-Inspectors, Assistant Sub-inspectors, Head Constables and Recruit Constables
etc.

The Superintendent of Police is in-charge of the entire police force in the District and
is responsible to the District Magistrate. In the Metropolitan cities of Mumbai,
Chennai, Kolkata etc. the powers of Superintendent of Police and of the District
Magistrate are combined in one single official called the ‘Police Commissioner’.

The Constitution confers exclusive power on the States to control and regulate the
functioning of the police as the maintenance of police order and police, including the
railway and village police are State subjects.

Police Organisation under the State Government

● Director General of Police (DGP) {In-charge of the State}
● Additional Director General of Police (Addl. DGP)
 ● Inspector General of Police (IGP) [In-charge of a zone]
● Deputy Inspector General of Police (Dy. IGP) {In-charge of a range, which
comprises a group of districts}
● Senior Superintendent of Police (SSP) {In-charge of the bigger District
● Superintendent of police (SP) {In-charge of the District}
● Deputy Inspector General of Police (Dy. IGP) {In-charge of a range, which
comprises a group of districts}
● Additional Superintendent of Police
● Assistant/ Deputy Superintendent of Police (ASP/Dy. SP)
● Inspector of Police {In-charge of a Police Station}
● Sub-Inspector of Police (SI) {In-charge of a smaller Police Station}
● Assistant Sub-Inspector of Police (ASI)
● Police Head Constable (HC) {Staff of the Police Station}
● Police Constable {Staff of Police Station}

Police system at Centre

The Central Government is concerned with the administration of Central Police
Reserve Force, the Border Security Force and the Central Industrial Security Force
and the Central Bureau of Intelligence & Investigation.

Police organisation under Central Government

1. Central Para-Military Forces

● Assam Rifles
● BSF [Boarder Security Force]
● CRPF [Central Reserve Police Force]
● CISF [Central Industrial Security Force]
● ITBP [Indo-Tibetan Border Police]
● NSG [National Security Guard]

2. Unarmed Police Organisations

● BPR&D
● C.B.I
● DCPW
● IB
● NCRB
● NICSF
 ● NPA

3. UT Police Force

● DIG

● PHQ
● CID
● MT Section
● Training & Modernistic
● Police Hospital
● Home Guards
● Crime
● Economic Offences Wing

● SSP

● SDPO
● PCR
● Crime Branch

● SP

● City

Note: Full Forms of the Abbreviations used above-

[Under the heading- Unarmed Police Organisations]

● BPR&D- Bureau of Police Research & Development

● C.B.I- Central Bureau of Investigation
● DCPW- Directorate of Co-ordination, Police Wireless
● IB- Intelligence Bureau
● NCRB- National Crime Record Bureau
● NICSF- National Institute of Criminology & Forensic Science
● NPA- National Police Academy

[Under the heading SSP]

● SDPO- Sub-Divisional Police Officer

● PCR- Police Control Room

Functions and Duties of Police at Centre Level

Police and public order are State subjects, but this does not minimize the role of
Central Government in Police administration. Constitution of India empowers the
Central Government to intervene in some situations or perform special function in
police matters.

Article 355 of the Constitution of India, specifies that it is the duty of the Centre to
protect the States against internal disturbances and to ensure that the governance of
every State is carried in accordance with the provisions of the Constitution.

Constitution enumerates a list of subjects like All India Services, arms, ammunition,
passports etc. under the Union List. As per List 1 of the 7th Schedule, the Parliament
of India has exclusive powers to make laws with respect to the armed forces of the
Union, the Central Bureau of Intelligence and Investigation, the Union agencies and
institutions for training of police officers, promotion of special studies or research,
scientific and technical assistance in the investigation or detection of crime, all India
Services, extension of the powers and jurisdiction of members of one state police
force to another with the consent of that state or to outside railway areas.

Police Commissioners
A number of States in India have introduced the system of appointing a Police
Commissioner for better and effective maintenance of law and order. The working of
Police Commissioner in the Metropolitan Cities such as Delhi; Mumbai; Chennai etc.
has shown that functional autonomy leads to prompt and coordinated police action.
Specifically in urban areas various issues have been noticed regarding social
tensions; occurrence of crime etc. Solution to this is an organised police system.

In the Police Commissioner system, a senior and experienced police officer is

directly the in-charge of policing and he has complete control and authority over his
force. He is accountable directly to the Government.

Women Police
After the independence of India, women police have been recruited in the police
establishment from the year 1947. They deal with the offences relating to juvenile
and women delinquents. Women Police were introduced in United Kingdom for the
first time in 1917. The Indian women police perform functions of escorting women
offenders from one place to another or arrest and apprehend them.

The service of women police officers are utilised for helping the pardanashin ladies
for obtaining the passports etc. Recently, the growth in crime rate related to dowry
deaths, harassment of women, Indian women police have gear up to suppress these
crimes.

Roles and functions of Police

The role and functions of the police in India are as under-

a. To uphold and enforce the law impartially, and to protect life, liberty,
property, human rights, and dignity of the members of the public;
b. To promote and preserve public order;
c. To protect internal security, to prevent and control terrorist activities,
breaches of communal harmony, militant activities and other situations
affecting Internal Security;
d. To protect public properties including roads, railways, bridges, vital
installations and establishments etc. against acts of vandalism, violence or
any kind of attack;
e. To prevent crimes, and reduce the opportunities for the commission of
crimes through their own preventive action and measures as well as by
aiding and cooperating with other relevant agencies in implementing due
measures for prevention of crimes;
f. To accurately register all complaints brought to them by a complainant or
his representative, in person or received by post, e-mail or other means,
and take prompt follow-up action thereon, after duly acknowledging the
receipt of the complaint;
g. To register and investigate all cognizable offences coming to their notice
through such complaints or otherwise, duly supplying a copy of the First
Information Report to the complainant, and where appropriate, to
apprehend offenders, and extend requisite assistance in the prosecution of
offenders;To create and maintain a feeling of security in the community, and
as far as possible prevent conflicts and promote amity; etc.

Legal functions of Police

● Patrolling and Surveillance
● Preventive functions
● Investigation by police
● Interrogation of Offenders & Suspects
● Search & Seizure

A. Patrolling and Surveillance

Patrolling is the prime function of the police where it is duty bound to watch and ward
the society against crime. Surveillance is another important function of the police
which is based on anti-crime work. Every police station has a list of criminals and
anti-social elements which need a special watch on them. The police must be vigilant
and must perform its duties lawfully.

B. Preventive functions

The most important task assigned to police officers is to make arrest of law-breakers
and of the suspected criminals. The preventive powers and functions of the police
are mentioned under Code of Criminal Procedure [Sec. 149 to 158 of Cr.PC]. The
Code also provides legal limit of arrest and detention of the criminals.

C. Investigation by police

The purpose of investigation is to collect evidence and apprehend the offender. It is

the duty of everyone concerned to assist the police in their work. The police can
question any person supposed to be acquainted with the facts and circumstances of
the case. That person shall be bound to answer the questions raised by the Police.

D. Interrogation of Offenders & Suspects

The police have the power to interrogate and question the suspect if he has
committed any offence. However, there are certain limitations to the power of police
to search which is provided under Sec. 156 of the Code of Criminal Procedure.

E. Search & Seizure

It should not be unreasonable; it may be conducted by the police with or without

warrant. If a search is conducted on a warrant issued by a Magistrate, it must contain
the following mentioned details-

i. Information as to the statement of facts showing probable cause that a

crime has been committed;
ii. A specification of a place or places to be searched;
iii. A reasonable time-limit within which it must be conducted.

Police Custodial Torture & Human Rights

Custodial torture has become a common phenomenon and a routine police practice
of interrogation. It leads to an uproar for a moment but after sometime the incidence
fades away and public forgets everything about the incidence.
Custodial torture ranging from assault of various types to death by the police for
extortion of confessions and imputation of evidence are not uncommon. Such a
method of investigation and detection of a crime, in the backdrop of expanding idea
of ‘humane’ administration of criminal justice, not only disregards human rights of an
individual and thereby undermines his dignity but also exposes him to unwarranted
violence and torture by those who are expected to ‘protect’ him.

The Supreme Court in the case of Sheela Barse v. State of Maharashtra [AIR 1983
SC 378] expressed its concern about the mental agony of the arrested person in
custodial investigation, where it observed that, whenever a person is arrested by the
police without a warrant, he must be informed immediately the grounds of his arrest.
The Court held in this case that the nearest relative or a friend of the arrested person
should also be informed immediately about such an arrest.

In the case of Raghubir Singh v. State of Haryana [AIR 1974 SC 1516] - The
Supreme Court put emphasis on the need to organise special strategies to prevent
and punish brutally of police methodology.

The term ‘torture’ in regard with the police custody implies the infliction of severe
pain and suffering which may be physical, mental, intentional etc. Sec. 23 of the
Indian Police Act, 1861 provides the duties of the police officer which should be
carried out and enforced with vigilance and discretion by the police.

In the case of Gauri Shankar v. State of U.P [AIR 1990 SC 709], the Supreme Court
observed the tendency of custodial torture and use of third degree methods by the
Police. The Court stated, “It is generally difficult in case of death in police custody to
secure evidence against policemen responsible for resorting to third degree methods
since they are in-charge of police station records which they do not find difficult to
manipulate. It is only in few cases that some direct evidence is available.”

The Court in this case further held that the evidence on record conclusively proved
that the death of the arrested person occurred because of the third degree methods
used by the Police.

In the case of Yusuf Ali v. State of Maharashtra [AIR 1968 SC 150]- The Supreme
Court reiterated that if the accused is beaten or tortured in any way during the course
of investigation by the Police, it will be taken as a case of custodial torture.

In Niranjan Singh v. Prabhakar Rajaram [AIR 1980 SC 785]- The Court observed
that while dealing with cases of custodial torture in police stations, the police instead
of becoming the protector of law, they have become engineer of terror which puts the
victim in fear.”

In the case of Kishore Singh v. State of Rajasthan [AIR 1981 SC 625]- The Supreme
Court expressed its concern for the act of police torture, which is observed as under-

“Nothing is more cowardly and unconsciously than a person in police custody being
beaten up and nothing inflicts a deeper wound on our constitutional culture than a
State official running berserk regardless of human rights.”

The Apex Court has also laid down guidelines for arrest by police which are as
under-

a. Arrests are not made in a routine manner. The officer making arrest must be
able to justify its necessary on the basis of some preliminary investigation.
b. An arrested person should be informed the grounds of his arrests and
allowed to inform his friends or relatives about the same. An entry in the
police diary about the arrest and the persons who were informed about the
arrest must be made by the police officer at the police station.
c. The Magistrate concerned must satisfy that the above requirements have
been complied with by the Police.

In the case of Prem Shankar Shukla v. Delhi Administration [AIR 1980 SC 1535]-
The Court observed, “Handcuffing is prima facie inhuman and therefore
unreasonable, it is over-harsh and arbitrary. Absent fair procedure and objective
monitoring to inflict ‘irons’ is to resort to zoological strategies repugnant to Art. 21 of
the Constitution of India.”

Supreme Court’s Directives for avoidance of custodial crimes

The Apex Court has expressed its concern for custodial commission of crimes during
investigation and interrogation and laid down certain principles to be followed by
concerned police officers in its historic decision in the case of D.K Basu v. State of
West Bengal [AIR 1997 SC 3017].

Following were the requirements which are to be followed in all the cases related to
arrest or detention till legal provisions which are made in that behalf to prevent
custodial violence-

a. The police personnel carrying out the arrest and handling the interrogation
of the arrestee should bear accurate, visible and clear identification and
name tags with their designations.
 b. The police officer carrying out the arrest shall prepare a memo of arrest at
the time of arrest and such memo shall be attested by at least one witness
who may either be a member of the family of the arrestee or a respectable
person of the locality from where the arrest is made.
c. A person who has been arrested or detained and being held in custody in
police station or interrogation shall be entitled to inform his friend or a
person having interest in his welfare, that he has been arrested and is being
detained at a particular place, unless the attesting witness of the memo of
arrest is himself such a friend or relative.
d. Time, place of arrest and venue of custody of an arrestee must be notified
by the police.
e. The person arrested must be made aware of his right to have someone
informed of his arrest and major or minor injuries, if any, must also be
recorded.
f. An entry must be made in the diary at the place of detention giving all
details about friend and relative or person informed.
g. The arrestee should be subjected to medical examination by a trained
doctor every 48 hours during his detention in custody.
h. Copies of all documents including the memo of arrest should be sent to the
Magistrate for his record.
i. The arrestee may be allowed to meet his lawyer during interrogation.
j. A police control room should be provided at all District and State
headquarters regarding arrest and the place of arrest of the arrestee shall
be communicated by the officer causing the arrest within 12 hours of
effecting the arrest and this should be displayed on a conspicuous notice
board at the police control room.

The Court condemned the tortuous methods adopted by the police and observed,

“Torture has not been defined in the Constitution of India or any other penal laws.
Torture of human beings by another human being is essentially an instrument to
impose the will of the ‘strong’ over ‘weak’ by suffering.”

As the custodial violence and torture involves serious breach of human rights, the
Government of India has come out with the protection of Human Rights Act, 1993
with a view to prevent human rights violations and combating torture cases. The
Commission has issued instructions and held meetings of District Magistrate and
Superintendents from time to time to initiate adequate measures to prevent custodial
torture and protect the innocent people from the violation of their basic rights.

Modernisation of Police
The setting up of a Central Finger Print Bureau at Calcutta in 1956 and the Crime
Record Bureau in the Central Bureau of Investigation in 1964 for maintaining
up-to-date date crimes and criminals at national and international level was indeed a
significant step in the process of modernization of police functioning in India.

In India, police and law and order come under the purview of State Governments.
Accordingly, each State has its own police force for maintaining law and order and
investigating crimes. However, due to financial and other constraints, States have
critical gaps in their policing infrastructure.

A National Crime Record Bureau was set up in 1985 which maintains complete
record of crime statistics throughout the country. In its annual publication ‘Crime in
India’, all important statistical information relating to crime and criminals, juveniles,
police, courts, prisons etc. is furnished for the guidance of the concerned
departments.

The Bureau of Police Research and Development head-quartered in Delhi is actively

involved in scientific research and development of new technologies in police
investigating methods. There are at present more than 200 forensic laboratories
functioning in India including eight central laboratories and 138 mobile units which
function under different State Governments.

Police Community relationship

Robert Reiner stated that policing is an inherently conflict ridden enterprise. Police
has a professional responsibility that demands highest standard of conduct which is
basically honesty, impartiality and integrity. The police are accountable to people and
they are duty bound to serve the society without misusing their power given to them.

“Accountability” here denotes an obligation or willingness to accept responsibility and

account for one’s actions. In the sphere of governance ‘accountability’ means that
public officials have an obligation to explain their decisions and actions to citizens. It
can be achieved through different mechanisms such as- political, legal and
administrative. A delicate balance must be struck between control and the initiative
of policemen.

It is a complex task of balancing control over the use of powers of police and the
need for operational autonomy necessitates the division of police functions into
prevention, investigation and service provision. The police perform different functions
and the accountability required for each function is quite different.

The development of modern techniques has given new challenges before the Police.
The law-breakers have become smart with the advancement in the technology; they
use different means and measures to commit offence. The use of computer system
would serve a useful purpose for boosting up the efficiency of the police.

The reason for failure of police to perform its duties promptly is the lack of public
co-operation. People in general are reluctant to help police as witness and assist the
police in apprehending the offenders and the law-breakers. At times general public
helps the offenders to escape from detection and their conviction.

The major issue for the police after modernization in India is to inspire people to
appreciate police values and to keep a check on the activities of people after the
introduction of modern technology. The general impression which people carry about
police is that they are rude, brutal, corrupt and lawless. It is important to brush away
such kind of thinking from the minds of people to give them a better police support
and to develop their faith in police system.

National Police Commission

The Government of India appointed a National Police Commission on 15th
November, 1977 under the Chairmanship of Mr. Dharmavir. The terms of reference
of the Commission were as under-

a. For redefining of the role of police and review its powers and responsibilities
in the changed context as a machinery for maintaining public order and
prevention of crime.
b. Reviewing of the work of the police and suggest concrete measures for
reform.
c. Suggested for remedial measures for elimination delays in investigation and
prosecution of cases.
d. To examine the existing methods and sources of preparing crime.
e. To review the system of policing in non-rural areas.
f. To examine the scope of utilization of scientific devices in police work.
g. Paying special attention to the responsibility of police about the welfare of
the society of people.
h. Exploring the areas of greater police public participation.
In the case of State of U.P v. Niyamat [AIR 1987 SC 1652]- The Apex Court in this
case acknowledged the right of private defence of the accused against illegal police
arrest and observed, “Indiscriminate arrests by police not only sustain its anti-people
image but also cause unnecessary drain on Exchequer for such detention.”

Police Advisory Committee

An Advisory Committee at Police Commissioner’s level and at the State level has
been constituted in different parts of India. Such Committees are functioning
successfully in the metropolitan cities such as Delhi, Mumbai, and Chennai etc.
These Committees consists of members belonging to all political parties. The
members are free to express their views.

The Committee was established to deal with the issue of corruption in the police
system this leads to the criminalisation of the force. The Committee has
recommended a serious enforcement of the code of conduct and effective
procedures for removing corrupt police officers.

It is not possible to organize police functions at hourly shift basis, police personnel
should be given a weekly off. They must be compulsorily required to go on earned
leave every year.

It is important that investigation should be separated from law and order work. Each
and every police station should be equipped with ‘investigation kits’ and every
sub-division should have a mobile forensic science laboratory.

Police leadership, through proper manpower and career planning, improved training,
effective supervision and by inculcating a sense of values amongst the members of
the force, playsa significant role in encouraging specialisation, promoting
professionalism and increasing morale in the force. There is an urgent need to
encourage specialisation in various aspects of policing.

It was further recommended that in every District, there should be a crime prevention
cell which should be headed by officers who have specialised in crime prevention
work. To manage and deal with cybercrime in an effect manner, police capabilities in
various areas need to be developed. The entire classification and the powers of the
police to investigate should be reviewed by the Law Commission of India.

These Committees serve as an effective media to improve police and public

relationship. The members bring to the notice of the administration the important law
and order issues of their areas. The police officials also can explain their difficulties
in dealing and handling crime related issues.
Media and police
Crime detection and investigation are primarily the functions of the police but it is
rather difficult for the policemen to perform these duties efficiently without public
co-operation. The desirability for public participation in crime detection hardly needs
to be emphasised. It is important that police-pubic interface must be improved and
this would help in disclosure of appropriate information from the police to the public.
This requires cooperation and mutual understanding between the police and public/
the media. In a democratic society police and media perform vital roles with a
common objective to serve the general public.

Nowadays police agencies are increasingly using Online Social Media to acquire
intelligence and connect with citizens. With the development and advancement in
technologies, the police system has thought of strategies to use Online Social Media
for policing.

Developing nations such as India are exploring and evolving with time the Social
Media as a policing solution. In recent years, India is experiencing many events
where rumors and fake content on Social Media is instigating communal violence.
However, traditional media such as television and print media, which is used by
Indian police departments, provides limited information. Social Media offers velocity,
variety, veracity and large volume of information.

It is important that police must act within the confines of the law. It is also essential
that the media and the police must be aware of legal boundaries. This would be
useful in promoting understanding and awareness between the media and the police
which for the common interest of the public.

Article 19 of the Constitution of India, enshrines the right to freedom of speech and
expression. It is important to understand that right is not absolute in nature and it is
subject to reasonable restriction which can to imposed to ensure the security of the
State, public order, and defamation.

In a democratic country the role of the police is to protect individual liberties and civil
rights. They are to be charged with the preservation of public order including crime
prevention and detection and promotion of public health, safety and morals.

It is essential to promote good police-public relationship. It must be strengthened in

order to bring public involvement and cooperation in the functioning of the police. It
helps and aids the understanding which further promotes improved communication,
returning to an increased understanding.
Discipline and lawlessness in India
Policing is one of the most important requirements of a peaceful coexistence of the
society. It is a practice that is put in place to maintain social order in the society. In
general way it can be defined as installing ways to control crime in the community. It
concentrates on the maintenance of law and order and the prevention and detection
of offences.

There are three ways of policing-

● There is watchman which emphasizes maintaining order;

● There is legalistic that emphasizes law enforcement and professionalism;
● There is servicewhich focuses on the treatment of the individual.

Meaning of Ethics
It is essential to understand the meaning and importance of ethics while dealing with
or explaining the discipline amongst Police. The concept of ‘ethics’ was introduced
by Socrates and it was defined as ‘philosophical discipline’ by Aristotle. Discipline
tries to set up criteria for “good” and “bad” behaviour, and to evaluate the motives for
these behaviours and the consequences.

Ethics isalso known as moral philosophy and it is a branch of philosophy which is

linked with the questions of right and wrong. It involves making moral judgments
about what is right or wrong, good or bad. Right and wrong are qualities or moral
judgments we assign to actions and conduct.

In police system it is must to follow ethics and discipline. It is essential to follow the
code of conduct; otherwise it would lead to anarchy and dictatorship. Every citizen is
bound to follow rules and even police is subject to it.

When there is a violation of law, it is the duty of the police to apprehend the
offenders and produce them before the court to be dealt with the procedures
established by law. Whenever violations of human rights by police are reported, it
causes an overall effect of loss of faith in the police as a protector and upholder of
citizens’ rights.

Interpol
India has joined Interpol in 1949 and is one of the oldest members of Interpol.
Criminality has become a global phenomenon in the modern age of computer world.
There is tremendous growth of transport and inter-communications has brought new
issues and challenges before the police, related to criminality.
The dangers of international crime have to be faced squarely by every country.
Hence, it is essential that every country has its own international agency to deal with
the issues of international crime. This agency is known as ‘INTETPOL’ (International
Criminal Police Organisation). It was established to maintain the direct contact with
the Police forces outside the ordinary channels of diplomacy.

Interpol has assumed great importance in recent years due to rising incidence of
drugs trafficking, gold smuggling, forgery of passports and other important
documents etc. The assistance of Interpol is invariably sought in making arrest of
criminals involved in hijacking of aircrafts.

The Central Bureau of Investigation (CBI) which is a Federal/Central investigating

agency functioning under the Central Government, Department of Personnel &
Training is designated as the National Central Bureau of India. The Director of the
Central Bureau of Investigation is the ex-officio Head of the NCB-India. All matters
relating to the NCB India are, however, dealt with by the Ministry of Home Affairs,
Government of India.

Interpol Wing of the C.B.I. which is the National Central Bureau for India endeavours
to maintain close and continuous liaison with various departments and police
organisations within the country on one hand and with the General Secretariat of the
ICPO-Interpol and the foreign National Central Bureau on the other.

The activities of Interpol also include searching and chasing of international

criminals; circulation of information regarding crimes held at international platform,
criminal gangs received from member police forces, assisting in arrest of
international criminals and making arrangements for keeping them under
surveillance etc.

Following are the various goals and purpose of Interpol-

a. To ensure and promote assistance between all criminal police authorities

within the limits of laws existing in different countries and in the spirit of the
Universal Declaration of Human Rights;
b. To establish and develop all institutions to contribute effectively to the
prevention and suppression of ordinary crimes.

Interpol enables the police forces in various countries to co-ordinate their work
effectively in the areas of law enforcement and crime prevention. It refrains from
indulging in any activity relating to cases which have a political, military and religion
character.
International perspective of the Police
The issues of the police system have also been discussed at International Forums.
The Second United Nations Congress on the Prevention of Crime and Treatment of
Offenders, London, 1960 discussed with the detail of Police Services for prevention
of delinquency. A number of programmes have been organised in Anglo-American
countries for training of police related to prevention of juvenile delinquency.

The various such programmes are- International Criminal Police Organisation,

International Federation of Senior Police Officer and International Association of
Chiefs of Police have often made important suggestions related to police training.

An International Conference was also held on ‘urban police’ which was held at Rome
in September, 1985. The Conferences was conducted to discuss the issues related
to handling of the problem of urban crimes and it also suggested measures for
prevention of urban delinquency. The problem of rural policing is to engage the
attention even of developed countries like USA, UK, France etc.

Criminal justice system

It is the delivery of justice to those who have committed offences. The criminal
justice system may be defined as a series of Government agencies and institutions,
which have their goals to identify the law breakers and unlawful individuals and to
impose punishment in them. It serves certain other purposes as well, such as
prevention of crime, rehabilitation of law offenders, moral support to victims etc.

The criminal justice system is complex part of society and it plays an important role
in our lives. Every individual is responsible to enforce rule of law

The primary institution of the criminal justice system are-

● Police
● Prosecution/ Defence Lawyer
● Courts
● Prisons

Malimath Committee Report on Police Functioning

In the year of 2004, the Government had appointed Malimath Committee to report on
Police and Criminal Justice System in India. Dr. V.S Malimath was the former Chief
Justice of Karnataka and Kerala High Courts.
The Committee made a detail study and analysis of criminal justice system and it
also gave recommendations related to fundamental principles of justice,
investigation, prosecution and functioning of offences against women, organised
crime and arrears in Court. The Committee were analysed by the Police
administration in a National Level Seminar on police and criminal justice system at
the Punjab Police Academy Phillaur.

Recommendations
Following are some of the recommendations of the Malimath Committee related to
develop a better Criminal Justice System in India-

● Courts and Judges

● National Judicial Commission
● Separate criminal division in higher Courts
● Right to silence
● Justice to the victims
● Victim Compensation Fund
● Appointment of Superintendent of Police
● Addition of a new position
● Offences classification
● Substitution of death sentence
● Central law for organized crime and terrorism
● Periodic review

a. Courts and Judges

Committee made a suggestion that there must be more Judges in the Courts for
speedy disposal of matters.

b. National Judicial Commission

It was recommended that the Constitution of a National Judicial Commission must

deal with the appointment of Judges to the Higher Courts.

c. Separate criminal division in higher Courts

Higher Courts must have a separate criminal division that shall consist Judges who
are experts and specialised in criminal laws.

d. Right to silence
An amendment to Article 20(3) of the Constitution of India was recommended that
would protect the accused and would give him a right of being silent. The accused
cannot be compelled to be a witness against himself in the Court.

e. Justice to the victims

The victims should be allowed to take part in the cases that involves serious crimes.
They must also be awarded adequate compensation. In case of death of the victim,
his/ her legal representation shall have the right to be impleaded as a party in
serious crimes.

f. Victim Compensation Fund

It must be created under the victim compensation law and the assets confiscated
from organised crimes can also be made part of the fund.

g. Appointment of Superintendent of Police (SP)

SP must be appointed in each District to maintain crime data and an organisation of

specialised squads to deal with organised crime.

h. Addition of a new position

A new post must be created in every State, i.e. of Director of Prosecution to facilitate
an effective co-ordination between the investigating and prosecuting officers.

i. Offences classification

It should be changed to the social welfare code, correctional code, criminal code,
and economic and other offences code instead of the current classification of
cognisable and non-cognisable.

j. Substitution of death sentence

Capital punishment must be substituted with imprisonment for life without

commutation or remission.

k. Central law for organized crime and terrorism

Crime is a State subject; a central law must be enacted to deal with organised crime,
federal crimes, and terrorism.

l. Periodic review
A Presidential Commission was recommended for a periodical review of the
functioning of the Criminal Justice System.

Essentials of Criminal Justice system

● It includes the institutions/ agencies which are established by the
Government to control crime in India, it also includes components like
police and Courts.
● Aim of criminal justice system is to protect the rights and personal liberty
of individuals in the society.
● There are various codified provision in India related to criminal law such
as Indian Penal Code, Criminal Procedure Code; Dowry Prohibition Act;
etc.
● The criminal justice system can impose penalties on those who violates
the established laws; punishment to law violators.
● The criminal law and procedure is the matter of Concurrent List of 7th
Schedule of the Constitution of India.

Objective of the Criminal Justice System

The essential object of criminal law is to protect society against criminals and
law-breakers. For this purpose the law holds out threats of punishments to
prospective lawbreakers as well as attempts to make the actual offenders suffer the
prescribed punishments for their crimes.

● Substantive criminal law

● Procedural criminal law

Criminal law, in its wider sense, consists of both the substantive criminal law and the
procedural criminal law.

○ Substantive criminal law defines offences and prescribes punishments for

the same
○ Procedural law administers the substantive law

Two main statues which deals with administration of criminal cases in our country
are-

● Criminal Procedure Code and

● Indian Penal Code
One deals with the procedural aspect and other deals with the substantive
respectively. With the changing needs and time the societal norms also change.
People being the part of this society have to accept this change.

There was no criminal law in uncivilized society earlier. Every man was liable to be
attacked in his person or property at any time by any one. The person attacked
either succumbed or over-powered his opponent. “A tooth for a tooth, an eye for an
eye, a life for a life” was the forerunner of crimi­nal justice in earlier times.

Rights of the arrested person

● At the time of arrest
● At the time of trial

In India accused have more rights as compared to victim:

a. Right to be informed of ground of arrest

Sec. 50(1) of the Criminal Procedure Code- Every police officer or other person
arresting any person without warrant shall forthwith communicate to him full
particulars of the offence for which he is arrested or other grounds for such arrest.

Article 22 of the Constitution of India also confers fundamental right on every

arrested person to be informed the grounds of his detention. The object was
observed in the leading case of Madhu Limaye, AIR 1969 SC 1014- The rule was
embodied under the Constitution of India for safeguarding the personal liberty in all
legal systems.

b. Obligation of person making arrest to inform about the arrest etc. to a

nominated person

Sec. 50A of the Criminal Procedure Code- This is a new provision inserted by the
Cr.P.C (Amendment) Act of 2005.

1. Every police officer or other person making any arrest under this Code shall
forthwith give the information regarding such arrest and place where as may
be disclosed or nominated by the arrested person for the purpose of giving
such information.
2. The police officer shall inform the arrested person of his rights under
sub-section (1) as soon as he is brought to the police station.
3. An entry of the fact as to who has been informed of the arrest of such form
as may be prescribed in this behalf by the State Government.
 4. It shall be the duty of the Magistrate before whom such arrested person
produced, to satisfy himself that the requirements of sub-section (2) and
sub-section (3) have been complied with in respect of such arrested person.

Provisions of Sec. 50A are mandatory in nature, it means that the police officer is
bound to inform about the arrest of the person to his friend, parents, and relative or
to some nominated person. The Magistrate must be satisfied that the provisions of
the Section has been complied with by the police officer.

c. Right to be informed of right to bail: Sec. 50(2) of Cr. P.C.

Where a police officer arrests without warrant any person other than a person
accused of a non-bailable offence, he shall inform the person arrested that he is
entitled to be released on bail and that he may arrange for sureties on his behalf.

d. Right to be produced before the Magistrate without delay

Sec. 56 of Cr. P.C. and Article 22(2) of the Constitution of India: Person arrested to
be taken before Magistrate or officer in charge of police station.

A police officer making an arrest without warrant shall, without unnecessary delay
and subject to the provisions herein contained as to bail, take or send the person
arrested before a Magistrate having jurisdiction in the case, or before the officer in
charge of a police station.In Khatri v. State of Bihar [AIR 1991 SC 928]- It was
observed that this provision enables the Magistrate to keep check over the
investigation of police.

e. Right of not being detained for more than twenty-four hours

Sec. 76 of Cr. P.C, Person arrested to be brought before Court without delay.

The police officer or other person executing a warrant of arrest shall (subject to the
provisions of Sec. 71 as to security) without unnecessary delay bring the person
arrested before the Court before which he is required by law to produce such person:
Provided that such delay shall not, in any case, exceed twenty-four hours exclusive
of the time necessary for the journey from the place of arrest to the Magistrate’s
Court.

f. Right to consult lawyer

Article 22(1) of the Constitution of India confers on every person who is arrested, the
right to consult a legal practitioner of his own choice. The arrested person is also
entitled to free legal aid if he is an indigent person (D.K Basu v. State of West Bengal
[AIR 1997 SC 610])

g. Right to be examined by the Doctor

Sec. 54 of the Code confers right on the arrested person to have medically examined
to enable him to defend effectively.

Nandini Sathpathy v. P.L. Dani [AIR 1978 SC 1025]- In this case it was held that no
one can forcibly extract statements from the accused and that the accused has the
right to keep silent during the course of interrogation (investigation).

Suk Das v. Union Territory of Arunachal Pradesh [AIR 1986 SC 991]-Wherein it was
laid down that the constitutional rights cannot be denied if the accused failed to apply
for it. It is clear that unless refused, failure to provide free legal aid to an indigent
accused would vitiate the trial entailing setting aside of the conviction and sentence.

Plea Bargaining
Historical Background
The concept of ‘plea bargaining’ was originated in recent past. In 19th century, it was
used in the American Judiciary. In 1969, James Earl Ray pleaded guilty to
assassinating Martin Luthar; to avoid execution sentence and he got punished for 99
years of imprisonment. Most of the cases in America are not tried.

In the countries like England and Wales, Victoria, Australia, ‘plea bargaining’ was
allowed only to the extent that the prosecutor and defence can agree that the
defendant will plead to some charges and prosecutor shall drop the remainder.

The European Nations are also legitimizing the concept of plea bargaining, however
Scandinavian countries are against the practice of plea bargaining.

Plea Bargaining and Criminal Jurisprudence

The introduction of the concept of plea bargaining is contained under Chapter XXIA
of the Code of Criminal Procedure. Sec. 265A to 265L of Cr.P.C. deals with ‘plea
bargaining’. Plea bargaining has a wide scope than pleading guilty for an offence. In
plea bargaining we can say that there is an implied conduct of pleading guilty.
Advantages

1. It helps the Court and State to manage the local case burden.
 2. It reduces the work load of the prosecutors and enables them to prepare for
the case by putting less efforts and to settle petty issues through the
method of plea bargaining.
3. It helps in reforming the offender by accepting the responsibility for their
wrongful actions.
4. The prosecution will get a chance to find the accused as guilty, by
cooperating with the accused for a plea bargaining.

Disadvantages

a. The prosecution has the power to present accused with unconscionable

pressure.
b. The procedure pleas as voluntary, but there are chances of being coerced.
c. The more likely is an acquittal at trial, the more attractive a guilty plea is to
the prosecution.
d. The defense lawyers who represent accused do not have the resources to
independently investigate every case.

Express and implicit bargaining

There are two kinds of plea bargaining as mentioned in the International
Jurisprudence-

● Express plea bargaining

● Implicit plea bargaining

Express Plea Bargaining

It occurs when an accused or his lawyer negotiates directly with a prosecutor or with
the trial Judge concerning with the benefits which may follow the entry of a plea of
guilty.
Implicit Plea Bargaining

It occurs without any face to face negotiations. In this the trial Judge, establishes a
pattern of treating the accused who plead guilty more leniently than those who
exercise the right to trial, and the accused therefore come to expect that the entry of
guilty pleas will be rewarded.

Plea Bargaining under Cr.P.C

The system of plea bargaining was introduced as a result of criminal law reforms
which was introduced in the Criminal Law (Amendment) Act, 2005. Sec. 4 of the
Amendment Act introduced Chapter XXIA to the Code having Sections 265A to
265L. The Act was passed on 11th January, 2006 and the provision came into effect
from 5th July, 2006.

Benefit of plea bargaining can be extended in two circumstances-

● If a report is forwarded by a Station House Officer of a police station after

the completion of investigation to the Magistrate.
● If the Magistrate has taken cognizance of an offence on a complaint
under Sec. 190, followed by examination of a complainant and witnesses
under Sec. 200 or Sec. 202 and issuance of process under Sec. 204.

Procedure of plea bargaining

According to Sec. 265B the process of plea bargaining starts with an application
from accused. The application is to be filed before the trial Court only. The
application must be in writing, with brief explanation of facts of the case supported
with an affidavit sworn by the accused affirming the genuineness of application as
voluntarily submitted Sec. 265A(2) of the code gives power to notify offences to the
Central Government.

The trial Court has to issue notice to the prosecution and also to the accused
intimating the date of hearing of application. While appearing before the Court, the
examination of the accused shall be done in-camera. If after examination of the
accused, the Court feels that the accused is not eligible for plea bargaining then the
Court drops the proceedings.

Human Rights and administration of criminal justice

Criminal justice System of any country is the basis of establishing peace and
tranquillity which not only includes judicial system but investigating machinery also.
Administration of justice is an essential component of governance, rule of law is the
base of democracy, which is considered as the best system of governance to ensure
respect for human rights in every Nation.

Constitutional governance in a democratic set up is the safest guarantee for the

protection of human rights in a country. Equal respect for the rights of all sections of
the society is necessary to obtain full human resource development respecting the
basic human right of non-discrimination.

Preamble of the Constitution of India ensures to secure human rights and provide-
justice, social, economic and political; liberty of thought, expression, belief, faith and
worship. It also ensures the equality of status and opportunity and to promote among
them all and fraternity assuring the dignity of the individual and the unity and integrity
of the Nation.

The administration of criminal justice is composed of various components such as

police, prosecution, defence, Courts and correctional institutions. In India, as also
followed in many other Countries, a person who is innocent can plead guilty. This is
called as an adversarial system as opposed to an inquisitorial system.

The adversarial system presumes that the best way to get the truth is to have an
adversary system which presumes the best way to get the truth is to have a contest
between two sides, the State or the prosecution and the defence.

In inquisitorial system, the accused is presumed guilty and is supposed to prove his/
her innocence. This involved ascertaining the guilty by ordeal or through trial by
battle.

The criminal law and procedure in India is based on the English law of crime which is
suited to the changing needs of the Indian society and its tradition. ‘Justice to
Common men’ is the primary objective of the legal mechanism of India. But in the
present situation the common men have no hope of getting justice. The unspoken
law of delays in Indian Courts is the main roadblock in the way of distributive justice.

The Supreme Court has also stated that the Constitution’s procedural guarantees
the protection of human rights by requiring the Police to follow detailed guidelines for
arrest and interrogation. It further guarantees the right to counsel of the defendant’s
choice, and the legal assistance must be provided to indigent defendants at
government expense, a right that attaches at the first appearance before a
Magistrate (D.K Basu v. State of West Bengal [AIR 1997 SC 3017]).

In the case of Pathumma v. State of Kerala [AIR 1978 SC 771],the Supreme Court of
India has interpreted that the fundamental rights guarantees expansively. The
Constitution of India protects ‘equality before the law’ and ‘equal protection of the
laws’ under provisions which embody a broad guarantee against arbitrary or
irrational state action more generally.

In the case of Maneka Gandhi v. Union of India [AIR 1978 SC 597],the Supreme
Court observed and stated that the Constitution of India, does prohibit deprivation of
life or personal liberty from any person except according to ‘procedure established
by law,’ and the Supreme Court has broadly interpreted this guarantee to encompass
a range of procedural and substantive rights that approximate the concept of ‘due
process’.
Sr. No. Details

1 Ahamed Siddique-Criminology Problems and Perspectives

2 Dr. M. Ponnian-Criminology and Prnology

3 Dr. Rajendra K. Sharma-Criminology and Penology

4 Dr. Sirohi-Criminology

5 Paranjape-Criminology

6 Bames and Teeters-New Horizons of Crminology

7 Sutherland-Criminology

8 Taft and England-Criminology

9 Siegel-Criminology
Unit V - Correctional Institution and Crime Prevention

Course Outline of Unit V: Correctional Institution and Crime Prevention

This Unit contains discussion on following topics :

Probation and Parole: Origin - Salient Features of Probation of Offenders Act,
1958 - Parole - Parole Regulations - Parole Recommendations.

Prison: Prison System in India - Problems of Prisoners - Organised Setup -

Prison Discipline - Prison Labour - Prison Education - Open Prison - The
Prison Community - Prison Reform in India - Dr. Wreckless Committee Report -
International Perspective.

Crime Prevention: Theories of Punishment - Kinds of Punishment - Recidivism

- Various forms of Recidivist - Prevention of Crime and Delinquency.

Disclaimer: This subject content as provided under AIR Online Education Support
Suite is only Study (Reference) Material for supplementing your Academic
Classroom (Text Book) Learning. These are not Text Books on the Law Subjects.

Probation of Offenders
Introduction
The problems of easing pressure on prisoners have been engaging the attention of
penologist throughout world. Probation is one of the measures that Court may adopt
to improve form of non-custodial alternative. This correctional device is increasingly
used by Magistrates nowadays.

The old custodial measure presents two major problems-

● It increases the dependence of offender; and

● It decreases his capacity to readjust to normal society after release

Conformity with the strict prison discipline has no guarantee that the prisoner has
transformed into a law abiding citizen. It also amounts to loss of job, separation from
the family and other adverse consequences.

Reformative treatment measure is the form of guidance and supervision has proved
effective in meeting the needs of the delinquents for their rehabilitation. Probation of
offenders has been widely accepted as one of the non-institutional methods to deal
with corrigible offenders, especially while dealing with young and first offenders.

This aims at rehabilitation of offenders by returning them to society during a period of

supervision rather than by sending them into the unnatural and socially unhealthy
environment of prison.

Origin of the Probation System

The origin and history of probation can be traced back to the medieval concept of
‘benefit of clergy’ which was prevailing in England and America and till the middle of
the 19th Century. The privilege of ‘benefit of clergy’ permitted clergy and other
literates to escape the severity of the criminal law.

During early times harsh punishments were imposed on adults and children were
treated alike for offenses that were not always of a serious nature. Punishments and
sentences such as branding, flogging, mutilation, and execution were common.
During the rule of King Henry VIII not less than 200 crimes were punishable by
death, many of which were minor offenses.

This led to discontent in certain progressive segments of English society that were
concerned with the evolution of the justice system. Slowly in an effort to mitigate
these inhumane punishments, a variety of measures were devised and adopted.
Methods such as benefit of clergy, judicial reprieve, sanctuary, and abjuration offered
offenders a degree of protection from the enactment of harsh sentences. The Courts
began the practice of “binding over for good behaviour” a form of temporary release
during which offenders could take measures to secure pardons or lesser sentences.
Controversially, certain Courts began suspending sentences.

Probation in U.S.A
John Augustus, the “Father of Probation” is recognized as the first true probation
officer. Augustus was born in Woburn, Massachusetts in 1785. By 1829, he was a
permanent resident of Boston and the owner of a successful boot-making business.
It was undoubtedly his membership in the Washington Total Abstinence Society that
led him to the Boston Courts.

John Augustus of Boston in 1841 volunteered to stand bail for a person who was
charged with drunkenness in a local Court. He noticed that the defendant was
showing some signs of reform. John Augustus started standing for bail for more
number of offenders and he took it as his duty of helping and supervising them. He
also started helping women and children in their rehabilitation, he was careful while
helping offender and used to help only those whom he found to be genuine and
willing to change.

The Juvenile Court movement contributed greatly to the development of probation as

a legally-recognized method of dealing with offenders. The first Juvenile Court was
established in Chicago in 1899. Formalization of the intake process is credited to the
founders of the Illinois Juvenile Court. Soon after, 30 states introduced probation as
a part of the juvenile Court procedure.

Later, Father Cook of Boston took keen interest in the rehabilitation of young
offenders; he drew the attention of the Court to the fact that these offenders were
mostly the victims of their circumstances. He volunteered and associated himself
with the criminal Courts of Boston to advise the Judges in the matter of juvenile
trials.

In USA particularly in Massachusetts, different practices were being developed.

“Security for good behaviour” also known as “good aberrance,” was much like
modern bail: the accused paid a fee as collateral for good behaviour. Filing was also
practiced in cases that did not demand an immediate sentence. However, these
American practices were precursors to probation; it is the early use of recognizance
and suspended sentence that are directly related to modern probation.

In some of the American States probation is being used extensively for all offenders
except recidivists who are excluded from the scope of probation law.

Under the American Probation Law, the benefit of release on probation extends to
the following offences-

a. Crimes of violence
b. Crimes involving use of deadly weapons
c. Sexual offences
d. Crime against the Government or treason
e. Offences for which specific mandatory punishment is provided
f. Recidivists

Probation in European Countries

Probation as a measure of treatment of delinquent is practiced in several other
countries; it has been extensively used as an effective measure. In France, Germany
and Russia, probation has been adopted as a measure of social defence.
In Austria, probation remedies are compulsory for offenders under 18 years of age.
Greece accepted probation as a correctional measure in 1951. Same system was
adopted in Ireland, Italy, Netherlands and Switzerland.

Probation in India
Probation is used as an institutional method of treatment which is necessary of the
concept of crime. The objective of the institutional treatment of probation is to correct
the effects of the causative factors of criminality in the controlled atmosphere of
probationary supervision, utilising the helpful factors, his behaviour and family
situations etc.

The probation law in India provides that judicial power should be solely vested in the
judiciary. The reason is that if the power of probation is delegated to extra-judicial
agencies which lack judicial techniques, it would create serious problems at these
agencies which will be guided by their own value considerations.

Historical perspective of probation law in India

In India, probation received statutory recognition for the first time in 1898 through
Sec. 562 of the Code of Criminal Procedure, 1898 [New Sec. 360 of CrPC, 1973].
Under this provision the first offender under the Indian Penal Code is punishable for
maximum two years of imprisonment and could be released on probation of good
conduct at the discretion of the Court.

Later the Children Act, 1908, empowered the Court to release certain offenders on
probation of good conduct. Now that Act has been repealed and Juvenile Justice Act
was passed in the year 1986 which has been amended several times to meet the
changing scenario.

The Government of India in 1931 prepared a draft of Probation of Offenders Bill and
circulated it to the Provincial Government for views. The Bill could not be preceded
further due to pre-occupation of the Provincial Governments. In 1934, the
Government of India informed the local Governments that there were no prospects of
a central legislation being enacted on probation and they were free to enact suitable
laws on the lines of the draft Bill.

After the independence of India, certain important steps were taken to popularise
probation as a correctional measure of treatment of offenders. On the advice of Dr.
Walter Reckless, a Probation Conference was held in Bombay in 1952.This was a
milestone in the progress of probation law in India. Dr. Walter Reckless addressed
the Conference as a U.N. technical expert and gave valuable suggestions on Prison
Administration in India. All India Jail Manual Committee was formed to review the
working of Indian jails and suggest measures for reform in the system.

The Probation of Offenders Act, 1958

The Act contains provisions related to probation of offenders which are made
applicable throughout the country. The Act provides the four modes of handling the
young offenders based on the following conditions-

a. Release after admonition;

b. Release on entering a bond on probation of good conduct with or without
the supervision and payment by the offender the compensation and costs to
the victim;
c. Persons under the age of 21 years are not to be sentenced to imprisonment
unless the Court calls for a report from the probation officer or records
reasons to the contrary in writing;
d. The person released on probation does not suffer a disqualification
attached to a conviction under any other law.

Provisions of the Probation of Offenders Act are not limited to juveniles alone, it
extends to adults also. It is not confined to the offences committed under the Indian
Penal Code but also applies and extends to offences which are committed under
Prevention of Corruption Act, Narcotics Drugs Act etc.

Release on Probation
Sec. 4 of the Actdeals with the power of the Court to release certain offenders on
probation of good conduct. According to Sec. 4, if any person is found guilty of
having committed an offence not punishable with death or imprisonment for life and
the Court by which the person is found guilty is of opinion that, having regard to the
circumstances of the case including the nature of the offence and the character of
the offender.

In the case of Dasappa v. State of Mysore [AIR 1965 Mys. 224] it is laid down as
follows-

“It is only when the Court forms an opinion that the offender in a given case should
be released on probation of good conduct that it has to act as provided by Sec. 4 of
the Act . It was for the accused to have placed all the necessary material before the
Court which could have enabled it to consider that the first accused was an offender
to whom the benefit of Sec. 4 would be extended.”
It is expedient to release him on probation of good conduct, then, notwithstanding
anything contained in any other law for the time being in force, the Court may,
instead of sentencing him at once to any punishment, direct that he be released on
his entering into a bond, 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.

Sec. 11 of the Act widens the scope of probation by inserting an enabling provision
regarding the competence of the Courts to make order under the Act in appeal and
revision and powers of the appellate and revisional Courts in this regard.

Concept and definition of ‘Probation’

Releasing the offenders on probation is a treatment device which is prescribed by
the Court for persons who are convicted of offences against the law, during which
the probationer lives in the community and regulates his own life under conditions
imposed by the Court or other constituted authority and is subject to supervision by
the probation officer.

The term ‘probation’ is derived from the Latin word ‘probare’ this refers ‘to test’ or ‘to
prove’. Homer suggested that probation is a matter of discipline and treatment. He
further stated that if probationers are carefully chosen and work is supervised with
care and performed with caution then it would do miracles in the field of rehabilitation
of the offender.

Webster dictionary meaning of Probation is the act of proving, proof, any proceeding
designed to ascertain character. Thus probation means a period of proving or trial.
The offender has to prove that he is worthy of probation.

Meaning of Probation

According to Don M. Gotfriedson ‘Probation’ “is a procedure which a

convicted person is released by the
Court without imprisonment and is
subject to conditions imposed by the
Court. Thus probation is part of the
decision-making process of Judges at
the time of sentencing.”
 According to Donald Taft Probation can be defined as the
postponement of final judgment or
sentence in a criminal case which
gives the offender an opportunity to
improve his conduct and to readjust
himself to the community, often a
condition is imposed by the Court.

Constitutional View Point “Probation is a status of a convicted

offender during the period of
suspension of his sentence in which
he is given liberty conditioned on
good behaviour and the State helps
him in such an instance of good
behaviour.”

Probation in simple words can be defined as a treatment reaction to law-breaking

and an attempt to mitigate the rigours of the offender rather than making him suffer
incarceration in the prison institution.

According to some Scholars, ‘probation’ ‘is a method of dealing with specially

selected offenders and consists of conditional suspension of punishment while the
offender is placed under the personal supervision and is given individualised
treatment’.

Probation is a conditional release of an offender who is under supervision. There are

two methods to use ‘supervision’ which is before and after custody. If it is applied to
an offender before custody then it is known as ‘probation’ and if it is applied after
custody then it is known as ‘parole’.

Probation involves conditional suspension of punishment. An offender may be

released on probation either after the sentence is passed in his case or without
passing of a sentence. In the former case, the sentence is suspended and
delinquent is placed under probation while in the latter one, the offender is put under
probation without any sentence being passed on him.

The offender in the following conditions be released on probation after the

suspension of his sentence, which are as under-

a. His case may be considered as really hopeful when judicial leniency is

expedient;
 b. Probation may be intended to serve a positive role as a method of
guidance, assistance and supervision of the probationer so that he may
rehabilitate himself for the normal law abiding life.

According to Howard Jones, the following conditions must be fulfilled before allowing
the benefits of release on probations to an accused person-

i. No punishment should be imposed initially;

ii. The offender should be given a definite period to redeem himself;
iii. Delinquent during this period should be placed under supervision of a
probation officer for two reasons-

● To keep the Court informed about his progress;

● To help him to make the best use of the opportunity given to him.

iv. If the offender responds positively, his initial offence should be deemed to
have been scrapped but if he fails to do so, then he may be brought back to
the Court and sentenced for the original crime as also for any other crime
which he might have confirmed.

Object of probation
The main purpose of this is to reclaim back the young and first offenders to orderly
society who have for certain reasons fell into bad company. The aim of the Act is to
provide for the release of offenders on probation or after due admonition and for
matters connected therewith.

a. Object of probation is to bring law breakers and anti-social persons into

willing cooperation with the community of which he is a member , thus
giving him security which he needs and society protection against his
attacks on person or property.
b. The function of probation is to effect improvement in character of the
offender and permanent rehabilitation and reformation of the offender.
c. Probation involves moulding of the individual’s habits in more constructive
way.
d. It’s a substitute to imprisonment .Punishment will not serve the purpose in
all cases of offenders.
e. The object is that an accused person who is convicted of a crime should be
given a chance of reformation which he would lose by being incarcerated by
prison.
Ramji Missar v. State of Bihar [AIR 1963 SC 1088]
The Supreme Court pointed out the object of probation, as to stop conversion of
youthful offenders into stubborn offenders as a result of their association with
hardened criminals of mature age in case of youthful offenders are sentenced to
undergo imprisonment in jail. Modern criminal jurisprudence recognises that nobody
is a born criminal and that a good many crimes are the result of socio-economic
milieu. The Probation of Offenders Act gives statutory recognition to all the
mentioned objectives.

The Act recognizes the importance of environmental influence in the commission of

crimes and prescribes a remedy whereby the offenders can be reformed and
rehabilitated in society.It is important to note that the Probation Act is not meant for
hardened and habitual offenders who are beyond redemption and are incorrigible.

The reason for the enactment of the Probation of Offenders Act is that there are no
separate probation laws in several States. Even in States where there are probation
laws, they are not uniform nor they adequate to meet the present requirements.

With the change in time there has been an increasing emphasis on the reform and
rehabilitation of the offenders as a useful and self-reliant member of society without
subjecting him to the deleterious effects of jail life. The Government of India
proposed to have a Central law on the issue which should be uniformly applicable to
all the States.

Judicial Trends-Important Case Laws

The role of Courts in bringing about rehabilitation of offenders need not be
over-emphasised. The final verdict as to whether an offender deserves to be
admitted to the benefit of release on probation or not, lies with the Court. The
decision as regards the release of an offender on probation is to be taken only after
his guilt is proved. Probationary disposition being a post-conviction process depends
largely upon the probability of the offender to reform oneself.

According to Mr. Justice K. Sadashivan of the High Court of Kerala while addressing
the National Conference on Probation in October, 1971. He stated that the need of
Judges and the Magistrate to be solicitous to implement the penal reforms envisaged
by the law of probation which is a correctional measure.

In the case of Kamaroonissa v. State of Maharashtra [AIR 1968 Goa 103]- The
Supreme Court confirmed the sentence of accused, a girl below the age of 21 years
who was convicted for theft and observed that it was not desirable to admit her to the
benefit of probation.

In the case of Sunna v. State [AIR 1967 Orissa 4]- The accused aged 21 years was
found guilty of an offence under Sec. 380 of IPC for committing theft of a bicycle and
some clothes. The Court ordered his release after admonition under Sec. 3 of the
Probation of Offender Act, because there was no previous conviction of the accused
and the theft was committed due to sudden temptation without any premeditation.

In the case of Ranjit Singh v.The State [AIR 1963 Pat. 262]- The Patna High Court
awarded a sentence of 6 years of simple imprisonment and fine of Rs. 1,000 to the
accused for the offence of forgery under Sec. 467/ 468/ 471 and 420 of the Indian
Penal Code. Denying the benefits of release on probation to the accused the Court
observed that the case deserved no compassion keeping in view the nature and
gravity of the offence and the standing of accused as a pleader having a lucrative
practice.

In the case of Sanchu Ray v. State of Assam [1987 Cr. LJ 1378] - The accused was
of 19 years of age approx. and he had no previous criminal antecedents. He was
sentenced to one year’s rigorous imprisonment. Keeping in mind the fact that the
accused was of a tender age and the offence was committed 10 years ago, the
Supreme Court directed him to be released on probation, considering his good
conduct.

Parole
Introduction
Over-crowding in prisons and increasing prison torture in utter disregard of the
Standard Minimum Rules for the treatment of prisoners approved by the U.N
Congress on Treatment of Offenders held in Geneva in 1955 is a serious cause of
concern for those who believe in correctional penology philosophy. In the
subsequent U.N. Congress held in London in 1960 it was stated that it should be
customary that prisoners should spend later part of their sentences on parole or in
open institution where they can live with their families.

Release of prisoners on parole is a reformative and rehabilitative measure which

seeks to protect society and assist the prisoner in re-adjusting himself to a normal
free-life in the community. Parole is an individualized method of treatment of
offenders who respond favourably to the disciplined life inside the prison.

Definition of Parole
 According to Prof. Gillin The release from a penal or
reformative institution, of an offender
who remains under the control of
correctional authorities, in an attempt
to find out whether he is fit to live in
the free society without supervision.

According to Donald Taft Parole is a release from prison after

part of the sentence has been served,
the prisoner still remaining in custody
and under stated conditions until
discharged and liable to return to the
institution for violation of any of these
conditions.

Penal Reform International Parole is defined as the early release,

under certain conditions, of a
convicted offender from custody.
Individuals who are placed on parole
are subjected to the supervision of a
parole officer and must adhere to
conditions imposed by the custodial
authorities. The length of the parole
period is generally established by law
or by a court on the basis of law.

Types of Parole
Following are the types of Parole-

A. Conditional release

It is the type of parole which is given to the offender allotting some conditions.
Conditional release are of two types:

● Full Parole

Full Parole is a form of conditional release that allows an offender to serve part of a
prison sentence in the community. The offender is placed under supervision and is
required to abide by conditions designed to reduce the risk of re- offending, and to
foster reintegration of the inmate into the community.
 ● Day Parole

Day Parole provides offenders with the opportunity to participate in on- going
community-based activities. Offenders are also granted day parole in order to
prepare for full parole and statutory release.

B. Statutory Release

Statutory Release requires for sentenced offenders to serve the final third of their
sentence in the community, under supervision and under conditions of release
similar to those imposed on offenders released on full parole. Offenders serving life
or indeterminate sentences are not eligible.

C. Release on Expiry of Sentence

Release on expiry of sentence is not a conditional release. It is the full release which
is required when someone has served the entire sentence. It applies to offenders
who were considered too dangerous to return to the community under statutory
release

Concept of Parole
The release of prisoners on parole is one of the most important but at the same time
it is a controversial devices for reducing pressure on prison institutions. It is believed
that a prisoner who is released from a prison institution is dangerous for society.

According to Sir Robert Cross, parole is the release of very long term prisoner from a
penal or correctional institution after he has served a part of his sentence under the
continuous custody of the State and under conditions that permit his incarceration in
the event of misbehaviour.

Prof. Sutherland considers parole as the liberation of an inmate from prison or a

correctional institution on condition that his original penalty shall revive if those
conditions of liberation are violated. The conditional release from prison under parole
may begin any time after the inmate has completed at least one-third of the total
term of his sentence but before his final discharge.

Parole is a concept known to military law and denotes release of prisoner of war on
promise to return. Parole has become an integral part of the Anglo-American criminal
justice system, evolution of changing attitudes of the society towards crime and
criminals.
All fixed term sentences of imprisonment above 18 months are subject to release on
licence. Parole is an act of grace and not as a matter of right and the convict prisoner
may be released on condition that he abides the promise. It is a provisional release
from confinement but is deemed to be a part of the imprisonment. The release on
parole does not change the status of the prisoner.

Comparison between Parole and Probation

Probation Parole

The system of probation owes its The Parole came into existence
origin to John Augustus of Boston around 1900 which was much later
which was around 1841. than probation.

It is merely the suspension of It is granted to a prisoner when he

sentence and is granted as a has already lived in prisons or a
substitute for punishment. similar institution for a certain period
of time and has shown good behavior.

A probationer is considered as a Parolee is considered to be in custody

treatment when the person is under
threat of being punished if he violates
the conditions of probation.
undergoing both punishment and
treatment while under threat of more
severe punishment, return to the
institution from which he has been
released.

It is the first stage of correctional It is the last stage of correctional

scheme. scheme.

There is no stigma or disqualification A prisoner released on parole suffers

attached to an offender who is stigmatization as a convicted criminal
released on probation of good in the society.
conduct.

Origin of Parole
U.S.A.
It can be traced back to the earlier system of prisoners which meant removal of
prisoners and handing them over to the employers for work and supervision on
condition of being returned back to prison if they did not behave properly.

By the end of the 18th century many Prison Aid Societies were formed to assist and
help the ex-convicts in their rehabilitation in the society. By 1940s similar functions
were assumed by the Federal States. The idea gained momentum through
successful working of the system of parole in England. This system was adopted by
other States in America. After passing of Parole Reforms Act, 1977, a uniform
system of parole has been implemented throughout the country.

The British Parole system

The failure of British system of penal transportation and its unsatisfactory
consequences led to the origin of parole in England. The abolition of the system of
transportation of prisoners as a penal resulted into overcrowding of British prisons.

A new method known as ‘Ticket on Leave’ was introduced in the later decades of
18th century as a measure for reducing the prison population. The system did not
yield good results because prisoners were discharged from prisons merely on surety
for good behaviour without being prepared and trained for a disciplined life in the
community.

The British Parole system admits the following categories of persons for parole-

a. People who are convicted for serious offences for which sentence exceed 3
years, in such cases the parolee must be report to the police every month
during period of parole.
b. Ones’ who are habitual offenders and sentenced under the preventive
detention laws.
c. Juvenile delinquents who are institutionalised in rehabilitation centres.

Parole in India
Prison reforms in India did not emerge out of social movement but were necessarily
an outcome of the worst conditions of treatment faced by the political sufferers in
prison during the period of their imprisonment. In India, the grant of Parole is largely
governed by the rules made under the Prison Act, 1894 and Prisoner Act, 1900.
Each of the States has its own parole rules, which have minor variations with each
other. There are two types of parole-custody and regular.
The custody parole is granted in emergency circumstances like death in the family,
serious illness or marriage in the family. It is limited to a time span of six hours during
which the prisoner is escorted to the place of visit and return therefrom.The grant of
parole is subject to verification of the circumstances from the concerned police
station and is granted by the Superintendent of Jail.

Post-independence era in India brought in its wake a growing realisation of the need
of change in attitude towards the treatment of offenders. The institutions such as
parole and open air camps occupy a significant place in correctional treatment of
offenders as they are directed towards narrowing down the gap between the prison
life and the free life outside the world.

Structure of Parole Board and its functions

The Parole Board consists of parole administration that is from the respectable
members of the society. Members of the Parole Board takes administrative decisions
on paroling out prisoners while acting as such, they are performing a quasi-judicial
function.

Other important function assigned to the parole personnel is to prepare a case

history of parolees and to help and advise them in the process of rehabilitation. Apart
from the Parole Board there is also a set of field workers who works outside the
prison. They keep a close supervision over parolees and report the cases to parole
authorities.

Conditions of Parole
Following are the essential condition on which parole’s success depends; those
factors are as under-

a. Family conditions of the offender upon which failure and success of parole
is based.
b. The offender is the first offender or a habitual offender; good parolees get
released soon and get adjusted in the society easily after being released
from the parole.
c. Social status of the offender also plays an important role in the success of
the parole. Generally offender who has higher social status and is educated
show better results and behave decent after parole.
d. Parole should be administered only to those prisoners who have displayed
an interest or inclination for good behaviour and shows respect towards law
and justice.
Essentials of an ideal parole system
Reformation of the parole through surveillance and assistance is the foremost object
of parole. 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.

The essential requisites of an ideal parole system may briefly be summarised as

under-

i. Emphasis must be on supervision as well as guidance and assistance to

parolees so as to make the system useful to the society.
ii. The parolees must be prepared for parole administration.
iii. The parolees must be assured an honourable employment and favourable
surroundings at the time of their release on parole.
iv. The parolees have to be rehabilitated within the society through society
various social agencies, it is desirable that the parole authorities should
seek active co-operation of the public in this task.
v. Parole Boards should be completely free from political pressures and only
persons of proven ability and integrity should be inducted in these Boards.
vi. The staff associated with parole agency should also be whole-time workers.

The object of parole

1. To enable the inmate to maintain continuity with his family life and deal with
family members.
2. To save the inmates from the evil effects of continuous prison life;
3. To enable the inmate to retain self-confidence and active interest in life
(BhikhabhaiDevshi v. State of Gujarat [AIR 1987 Guj. 136])
4. To conserve government resources, reduce cost and reduce overcrowding
in the prison system; to increase ‘rotation’ of the prison population;
5. To reintegrate convicted offenders into society by providing supervision and
treatment service;
6. To preserve community safety by supervising convicted offenders
7. To control the behaviour of inmates who are in custody by offering parole for
good behaviour
8. To encourage positive behaviour of convicted persons while they are
serving sentences that deprive them from the liberty.
Merits and Demerits of Parole

Merits of Parole Demerits of Parole

● It creates hopes among ● If any negligence in the

other prisoners.
● Once you have been
released on parole, there is
the opinion of the society is
liberal.
● Securing family life of the
parolee.
● It eradicate over burden of
the jails.
● It is also economical to the
State. The cost of
expenditure of parolee also
decreases.
● It creates threats on the mind
of the parolee to maintain
good conduct in the society.
selection of the parolee, it
results in serious
consequences.
● Parole Board is bound to act
on the aid and advice of the
jail authority.
● It is not necessary that the
prisoners who are
maintaining their good
conduct in the prisons will
maintain their good conduct
in the society.
● Political interference.
● Ill-treatment and doubtful
behaviour by the society
makes him impediment in his
character development.

Judicial Trends
In India, the Courts have favoured the view that the prisoners who have kept in
prison without trial for a long period of time. They must be released on parole and
must be allowed to maintain unity in the family. Following are some of the important
judgments which would support the stated contention-

Babulal Das v. State of West Bengal [AIR 1975 SC 606]

In this case Justice Krishna Iyer of the Supreme Court observed-

“It is fair that person kept incarcerated and embittered without trial should be given
some chance to reform themselves by reasonable recourse to parole power under
Sec. 15 of the Maintenance of Internal Security Act, 1971.”

Samir Chatterjee v. State of West Bengal [AIR 1975 SC 1165]

In this case the Supreme Court set aside the order of the Calcutta High Court
releasing on parole a person who was detained under Sec. 3(1) of Maintenance of
Internal Security Act, 1971 and disfavoured the observation that long term preventive
detention can be self-defeating and criminally counter-productive.

GurdeepBagga v. Delhi Administration [1987 Cr. LJ 1419]

A petition by life convict for parole on ground of illness of mother was rejected by the
High Court on the ground of illness of mother was rejected by the High Court on the
ground that the petitioner was earlier continuously on parole for more than two years
and had two elder sister to look after the ailing mother. The Supreme Court,
however, took a lenient view and recommended annual leave for life convict to
maintain unity of family.

Veerumchanni Raghvendra Rao v. State of Andhra Pradesh [1985 Cr. LJ 1009]

The Supreme Court ruled that release on parole and suspension of sentence during
pendency of appeal in Supreme Court is liable to stuck down being ultra vires the
statutory powers of State Government. The Andhra Pradesh Parole Rules, 1981 and
Andhra Pradesh Prison Rules, 1979 were struck down in this case being inconsistent
with Sec. 432(5) read with Sec. 389 of the Code of Criminal Procedure, 1973.

The prison administration

Introduction
Prisonisation symbolises a system of punishment and also a sort of institutional
placement of under trials and suspects during the time of trial. As it is impossible to
have a society without criminals, the institution of prison is indispensable for every
country. The imprisonment system represents a curious combination of different
objectives of punishment. Prison system may be used to deter the accused of an
offence or may be used as a method of retribution by punishing the offender and
making his life miserable.

The origin of prison is linked with the system of imprisonment which is originated
during early 19th century. Prisons were used as detention house for under trials.
With the passage of time, advancement of knowledge and civilisation, the conditions
of the prisons have improved significantly. The modern techniques of punishment lay
greater emphasis on reformation, correction and rehabilitation of criminals.

In India, the modern prison system is based on the British model period which is an
outcome of prison development in America during the late 18th century. The
evolution of prison system was started from America, Britain, Russia etc. and later it
was introduced in India.

The American Prison System

The medieval period in history of American colonies witnessed an era of barbarism
and deterrent punishment for criminals. The offenders were tortured and were
treated brutally. Minor offenders were also punished and tortured mercilessly. The life
of the prisoners during that period was very difficult and they were treated inhumanly.

To resolve such barbarous method of treating the prisoners which eventually led to
the passing of famous Penn’s Charter of 1862. The purpose of the Charter was to
put an end to brutal methods of punishment on humanitarian grounds and bring out
reforms in prison administration.

Following were the basic objectives contained in the Charter:

a. The practice of releasing prisoners on bail must be introduced;

b. Compensation should be allowed to persons who were wrongfully
imprisoned and this amount should be double the amount actually suffered
by the victim of the Offender’s Act;
c. Prisoners should be allowed the choice of their food and lodging to a certain
extent;
d. The system of Pillory which means punishing the offender in public places
should be abolished.

The Quaker’s Movement of 1775 led to remodelling of prisons on a new pattern. The
prisoners were classified into two main categories-

i. Incorrigible or hardened criminals- The prisoners were subject to solitary

confinement in cells without any labour.
ii. Corrigible or ordinary criminals who were capable of reformation- These
prisoners were lodged together in rooms and were put to work during day
time.

The British Prison System

In England also the prisoners were treated brutally and punishments were
barbarous in nature. John Howard in his book titled ‘The State of Prisons’ described
and highlighted the awful conditions of British Prisons during the period of 18th
century. Prisoners in England and Wales are enduring the “most disturbing
conditions ever seen” as authorities fail to take action to curb soaring levels of
violence and self-harm in jails.

Beccaria was the first European criminologist who raised an alarm against the harsh
and brutal treatment over convicted prisoners. Pope XI also supported and
advocated the cause of humanly treatment of prisoners.

The Act of 1778 was passed by the British Parliament which marks the beginning of
prisons reform in England. There were elaborated provisions in the Act related to
prison reforms. The complete functioning of the prisons were reformed and modified.
The prisoners were made to work during the day time and at night they were kept in
solitary cells.

During latter half of 19th century significant changes were brought to the
administration of the prison systems. The British prisoners were released on ‘Ticket
on Leave’ on the ground that they would not resort to criminal activities.

In 1894, the Gladstone Committee recommended the abolition of unproductive

labours in prisons and emphasised the need for work in groups. It recommended
further separate reformatories for juvenile offenders. In 1989 on recommendation of
the Committee the Prison Act was enacted in England and was followed by the
enactment of Children Act, 1908.

Present scenario of prisoners- Despite the Government’s ambition to improve

training and education by getting inmates out of cells, many prisoners remain locked
up in them for up to 22 hours a day.

The Government must now take responsibility for some of the worst prison
conditions that Inspectors have ever seen. Instead of tinkering around at the edges,
the government needs to outline an emergency plan and new funds to make our
prisons safe and humane.

Salient features of the present prison system in Britain may be summarised as

under-

a. The prisoners are classified into different categories through Group therapy
methods.
b. Inmates are provided vocational training inside the prison for their physical,
moral and mental betterment.
c. Reformation of the prisoners is sought within the community itself.
d. After the release of prisoners, his rehabilitation is ensured to after care
institutions or voluntarily service organisation.
 e. Basic rights of the prisoners must be recognised in the prisons.

Prison system in India

Legal system in India can be retrospectively divided into-

● Ancient period
● Medieval period
● Modern period

During earlier times, the whole legal system was dominated by the religious
principles. It wasbased on the verses of the Vedas in the contemporary social
conditions. India had a well-organised prison system from the very beginning.

The Ancient period: Prison System

On the records Brahaspati put great stress on imprisonment of convicts in closed
prisons. Various jurists gave their own theories of punishment. It is known as
dandaniti, which literally means principle of punishments.Manu was not in favour of
prison system. Kautilya in Arthashastra stated that rulers during ancient India made
frequent use of prisoners.

A lot of ancient Indian literature contained about Danda-niti i.e. Vedas,

Smritishastras, Dharamsastras, Kautilya’sArthsashtra. According to the work done
by Bana, there are indirect references to crimes and rigorous imprisonment. Manu
said that after considering the inclination in the offender, his antecedents and
capacity punishment should be given. According to Brihaspati, a gentle admonition
should be given to a man for light offence. Kautilya advised the king to award
punishment which should neither be mild nor severe.

In ancient India, great emphasis was laid down on the spiritual aspect of human life
and the prisons were modelled to provide sufficient opportunity for penance. The
object of punishment during the Hindus and the Mughals rule in India was to deter
the offenders from repeating offences. The recognised mode of punishments was
death-sentences, mutilation, hanging, whipping, starving to death etc. The prisoners
were ill-treated, tortured, subjected to inhuman conditions, there was an environment
of torture and rigorous punishments were given for the crime.

Development of prisons during Britishers: Medieval India

The British colonial rule in India marked the beginning of penal reforms in India. The
British prison authorities made great efforts to improve the conditions of prisons in
India; they introduced radical changes in the existing conditions of the prisons and
prisoners.

The Prison Enquiry Committee was appointed by the Government of India in 1836
which recommended for abolition of the practice of prisoners working on road and
under inhumane conditions. Adequate steps were taken to eradicate corruption
among the staff members of the prison.

In 1862 the Second Jail Enquiry Committee expressed concern about the unhygienic
conditions of prisons in India which caused death of many of the prisoners. The
Committee put stress on proper food and clothes for the prisoners and for keeping a
check of medical conditions of prisoners. Third Jail Committee in 1877 also made
certain important recommendations which were followed by further suggestions in
1889 and 1892.

As an outcome of these suggestions, the Prison Act, 1894 was enacted. The Act
brought uniformity in the working conditions of the prisoners in India. The Act
empowered the Provinces to enact their own rules for the prisons. The medical
facilities were also made available for the prisoners.

During the period from 1907 onwards vigorous efforts were made to improve the
conditions of the juvenile and young offenders. A number of reforms took place
which improved the conditions of prisoners. After the implementation of the
recommendations by these Committees, certain changes had come to the prison
system in India. However, most of the freedom fighters were sent to the prisons,
because they were demanding independence for Indian, as India was governed by
the Britishers. Due to which they were given very deterrent punishment in jails.
Indian Jail Reforms Committee 1919-20

The appointment of the All India Jail Committee (1919-1920) was a landmark in the
history of prison reforms in India. It identified reformation and rehabilitation of
offenders as one of the objectives of prison administration. The constitutional
changes brought about by the Government of India Act, 1935 resulted in the transfer
of the subject of prisons from the Centre to the control of Provincial Governments,
and this reduced the possibility of uniform implementation of the jail committee
recommendations.

This Committee was appointed to suggest measures for prison reform which was
headed by Sir AlexenderCardew. The Committee suggested that the prisons should
not only have deterring influence but they should have a reforming effect on inmates.
It recommended the utilisation of prison inmates in productive work to bring reform in
their behaviour. It also emphasised on the need for after-care programme for the
release of prisoners for their rehabilitation.

The main idea behind the appointment of the Committee was to overhaul the jail
administration and to introduce the upto date changes in it. It was evident that the
prison administration was lagging behind in reformative approach, it was devoid of
humanitarian elements and the prisoners were denied the attention for their
individual and social rehabilitation.

The Committee recommended the establishment of separate institutions like Borstal

School for Juvenile Delinquents. The under trials were to be kept separate from the
convicted and the adult convicts were to be classified as habitual and casuals.

It also took a serious view of the transportation of convicts to Andaman Island and
recommended for the discontinuation of the practice. Solitary confinement was to be
abolished and convicts were to share barracks in groups as habitual and casuals.

After independence of India- Prison System: Modern Period

After independence the Constitution of India placed ‘jail’ along with police; law and
order in the State list of the Seventh Schedule. The Union Government had no
responsibility of modernising prisons and their administration. The treatment of
prisoners has received some attention and it was considered as an important aspect.

The rehabilitative activities of the modern prisons are of two kinds-

a. Psychological treatment;
b. Educational or vocational training program

The Government of India invited Dr. W.C. Reckless, a technical expert of the United
Nations on crime prevention and treatment of offenders, to make recommendations
on prison reforms in 1951. Later, a Committee was adopted to prepare an All India
Jail Manual in 1957 on the suggestion of Mr. Walter Reckless.

He made a plea for transforming prisons into reformation centres and advocated
establishment of new prisons. With India’s republican Constitution choosing to place
prisons in the State List of the Seventh Schedule of the Constitution, the problem of
ensuring uniformity in prison reforms across the States remained.

Although some organisations have suggested that the subject of prisons should be in
the Concurrent List so that Parliament and the State Assemblies will have concurrent
jurisdiction to legislate on the subject, the governments at the Centre and in the
States have not shown sufficient interest in the proposal so far.
Following major guidelines for reformation of prisoner were accepted which are as
under-

i. The correctional services should form an integral part of the Home

Department of each State and a Central Bureau of Correctional Services
should be established at Centre level;
ii. The reformative methods of probation and parole should be used to lessen
the burden on prisons;
iii. State Alter-care units should be set up in each State;
iv. Solitary confinement should be abolished;
v. Classification of prisoners for their treatment was necessary;
vi. The State Jail Manuals should be revised periodically.

The modern Indian prison is an institution for the treatment and reformation of
inmates. There were several latest developments in this area which were beneficial
for prison community. The inmates were given liberty and they were put on
correctional methods.

However, the general condition of prison in India is still far from satisfactory
condition. The social contempt for prison life keeps all sections of society uninformed
about what actually happens inside the prison cells. Public opinion shows concern
about modernising of the prisons.

The utility of prison as an institution for rehabilitation of offenders and preparing them
for normal life has always been a controversial issue. According to Dr.Verma “a
prison symbolises evil and evil doers find themselves in perfect harmony inside
house of evils”.

Problems of prisons in India

The management of prisons falls exclusively under the domain of the State
Government, according to seventh schedule of the Constitution of India. In every
State, the prison administrative machinery works under the chief of prisons who is a
senior ranking IPS officer.

Indian prisons face three long-standing structural constraints: overcrowding, thanks

to a high percentage of undertrials in the prison population, understaffing and
underfunding. The inevitable outcome is sub-human living conditions, poor hygiene,
and violent clashes between the inmates and jail authorities.

● Prison Discipline
 ● Health issues
● Criminality in prisons
● Over-crowded prisons
● Problems of under-trial prisoners
● Custodial torture

Following are the various issues and problems of prison-

a. Prison Discipline

It has always been a problem throughout the world. The main object of Prisonisation
is negative as it aims at generating a feeling of dislike for prison life among the
members of the society. According to Donald Taft prisons are deliberately planned to
provide unpleasant compulsory isolation from the general society. The prison staffs
are untrained and they have no specialised training in this field.

b. Problems of prisoners’ health

The state of prisoners’ health is a major concern which needs proper attention. The
term ‘state of health’ includes the description regarding past and present suffering of
the disease of the new entrants and its duration and treatment taken etc.

Sec.(s) 37, 39-A, 39-B and 39-C of the Prisons Act, deal with sick prisoners and
require that prisoners at the time of their entry in prison be asked about their health,
particularly relating to tuberculosis and AIDS etc. and the treatment which they have
undergone for the disease, so that such prisoners apart from being given special
treatment may be segregated from rest of the inmates.

It is the duty of the State to ensure that such type of serious diseases are cured and
not allowed to spread, not only to other prisoners but also the other persons living
outside the prison.

In the case of Anil Kumar v. State of M.P. [2000 Cr. LJ 118 (MP)], enumerated the
factors which account for increase in the number of prisoners exposed to infection of
tuberculosis in prisons. The factors are mentioned as under-

● Delay in diagnosis, neglect of prisoner’s health problems, insufficient

health services in prison and inadequate sputum smear microscopy
facilities;
● Failure of medical services to refer T.B. suspects for diagnosis or to
initiate timely treatment;
 ● Transfer of prisoners with infectious tuberculosis between and inside
prisons;
● Overcrowding and prolonged confinement inside cells;
● Failure to segregate infectious cases from other prisoners;
● Sub-standard treatment resulting in failure to cure patients and prolonged
infectiousness etc.

c. Issues of criminality among prisoners

There are various reasons for criminality among the prisoners, one of the major
causes is that every prisoner tries to maintain his superiority in the prison and tries to
dominate his inmates. There are instances where the inmates fight on trifling matters
and issues, the reason may be difference of their opinions etc.

d. Over-crowded prisons

It is unfortunate that the prisons are overcrowded. Prisoners also have human rights
and they cannot be kept in jails like animals. The Law Commission in its 78thReport
(1979) made some recommendations for easing congestion in prisons. These
suggestions include liberalisation of conditions of release on bail, particularly release
of certain categories of undertrials on bail. Other methods of reducing overcrowding
in prisons may include extensive use of fine as an alternative punishment for
imprisonment, civil commitment and release on probation.

e. The problems of under-trial prisoners

This is a recently known problem which has been recognised in recent few years.
There are several number of under trial prisoners who are in prison for a long period
of time in many States. Many of the under-trial prisoners are innocent who are
caught and being put in the prisons.

In the case of Kalyan Chandra Sarkar v. Rajesh Ranjan [AIR 2005 SC 972]- The
Supreme Court in this case observed that the fundamental right of an under-trial
prisoner is not absolute which is enshrined under Article 21 of the Constitution of
India. It may be circumscribed by prison manual and other relevant Statutes
imposing reasonable restrictions on such right.

f. Custodial torture in prisons

The victims of injustice in prison, especially those who are poor and helpless, who
cannot afford legal representation have been protected against torture and
harassment. A victim of custodial torture can move to the Court directly by filing a
writ petition for the protection of his fundamental rights.

In the case of PrabhakarPandurang v. State of Maharashtra [AIR 1966 SC 424]- The

Supreme Court held that detention in prison cannot deprive the fundamental rights to
a prisoner.

In the case of Sunil Batra v. Delhi Administration [AIR 1978 SC 1675]- The Supreme
Court ruled that the prisoners are entitled to all fundamental rights which are
consistent with their incarceration.

In the case of Sheela Barse v. State of Maharashtra [AIR 1983 SC 378]- The Apex
Court on a complaint of custodial violence to women in jails directed that those
helpless victims should be provided legal assistance at the State cost.

In Sanjay Suri v. Administration [AIR 1988 SC 414] - The Supreme Court held that
the prison authorities should change their attitude towards prison inmates and
protect their human rights for the sake of humanity.

Open prison
Introduction
The study of criminology describes various theories of punishments and the most
useful in this regard is the ‘Reformative Theory’. The concepts of parole and
probation are recommended as the best measures to reclaim offenders to the
society as reformed persons. The Governments pursuing the same objective have
come up with a concept of ‘Open Jails’. Though the concept has been in existence
for quite some time, but it is still developing and introducing new junctures to a better
life of prisoners.

Open prisons have relatively less stringent rules as compared to the controlled jails.
They go by many names like minimum-security prison, open air camps or prison
without bars. The fundamental rule of an open prison is that the jail has minimum
security and functions on the self-discipline of the inmates. Every State law defines
the eligibility criteria of inmates who can be in an open prison. The principal rule is
that an inmate eligible for open air prison has to be a convict.

Definition of open prison

 United Nations Congress on
Prevention of Crime and Treatment of
Offenders
An open institution is characterised by
the absence of material and physical
precautions against escape such as
wall, locks, bars and armed-guards
etc. and by a system based on
self-discipline and innate sense of
responsibility towards group in which
he lives.

The open prisons are ‘minimum security’ devices for inmates to rehabilitate the
society after final release. In India they are known as ‘open jails’.

According to Sir Lionel Fox described the importance of open prison as the method
by which a prison regime may hope to inculcate self-responsibility and prepare the
prisoners for a rational life in society, the open prison institutions appears to be the
most effective approach.

Origin of open prisons- International perspective

U.S.A
During the 19th century America had open air prisons in which the prisoners who
were near to finishing of their sentence would be transferred as labourers, under
supervision and close watch of guards. Some prison camps were also organized in
Massachusetts and California around 1915. A farm type institution with suitable
facilities for work was proposed near the town of Chino in South California, under the
guidance of State Board of Prison Directors. However the idea of minimum security
did not settle with the existing Prison Board, finally in 1938 a new Prison Board was
proposed supporting the objective.

The philosophy underlying behind ‘minimum security’ institution is based on the

following assumptions-

a. A prison is sent to prison as a punishment and not for punishment;

b. A person cannot be trained for freedom unless conditions of his captivity are
relaxed;
c. The dictum that ‘trust begets trust’ holds well in case of prisoners also.

The success of open prison led to the establishment of ‘hostel system’ for prisoners
in U.K and it was inspired by the English experience which was also adopted by
India in the form of reformative schemes.
France
The open prison institution was also developed in France. The inmates in these
institutions used to go for work as free workers and there was no supervision over
them. The scope for the expansion of air camps is limited in France which allows the
prisoners to work outside the prison under private employers and under proper
supervision.

Australia
The first open prison camp was started in the State of Victoria in the year of 1939. It
has now been adopted as an integral part of penal-program of Australia. Recidivists
have served a considerable part of their sentence in a closed prison which is then
brought to open-prison camps for rehabilitation before their final release.

Open Air Camps in India

Important years

● First All India Jail Committee 1836

● Second Jail Committee 1877
● All India Jail Committee 1956-57
● Sir Walter Reckless 1952

After getting inspired from Anglo-American developments in the correctional field of

penology, the penologists of India was convinced that India cannot deal with prison
system and it problem need to be resolved through some different method.

The development of the open prison system in India can be traced back in the
1830s. With the appointment of the First All India Jail Committee in 1836, to review
the prison administration of the country, however the results did not prove
successful.

It was later followed by the appointment of the Second Jail Committee, and then it
was in 1877 that the question of employing prisoners on the major work sites was
put forth in the Prison Conference of the year. The recommendation was accepted
and has since been in practice though with some changes as thought fit.

During 1920-27, a number of committees were appointed by the Provincial

Governments for further reviews of prison administration but nothing could actually
be done in the direction until post-independence.

Post-independence of India
The post-independence periods witnessed some significant changes in the policies
and techniques of prison administration. It was realized that the inmates (offenders)
shall be given proper opportunities to associate and communicate freely with the
society and the gap between the outside and the inside world should be cut down as
far as possible.

The first commendable effort was made by Sir Walter Reckless, the U.N. Technical
Expert who visited India in 1952. The appointment of an All India Jail Committee
1956-57 was the result. This committee worked hard for over three years and made
appreciative recommendations for prison reforms. One of these recommendations
was the establishment of open jails and the main emphasis was on self-discipline
and self-help.

The primary function of law and punishment is to protect the society from criminals
and this can best be achieved by bringing a change in the attitude of offenders
towards their fellowmen. The open air camps have been used as one of the best
tools for rehabilitation of offenders in society.

Main features of open prisons

a. Informal living in small groups with minimum measure of custody
b. Efforts to promote consciousness among the inmates
c. Adequate facility for training inmates in agricultural field
d. Greater opportunity for inmate to meet their relatives and friends
e. Proper attention towards health care
f. Payment of wages in part to the inmates and sending part of it to his family
g. Financial assistance through inmates through liberal bank loans
h. Regular and paid work for inmates under expert supervision as a method of
reformation

Advantages of Open Prison System

● Reducing over-crowding
● Construction cost reduction
● Engaging inmates in open prison
● Open opportunities for self-development
● Conservation of natural resources
In the open prison system the selected offenders are placed under open air camps,
farm colonies or other outside work with a reasonable degree of safety. And the
obvious advantages of such system are;

○ They help in reducing overcrowding in jails.

○ Construction cost is fairly reduced.
○ Operational cost is far lesser than that of the enclosed prisons.
○ Engaging the inmates of open air prisons in productive work keeps them
mentally and physically fit.
○ Open opportunities for self-development and resocialization.
○ Help in conservation of natural resources and widens the scope of
rehabilitative process.

Critical analysis
Even though the working of open-jail during the first two decades of its beginning in
India proved to be successful but there was a decline in the popularity of these
prisons in the recent past. The reason was that there had been no significant
addition to the existing jails after 1980. And the idea of special jails for women did
not get much support either.

The Jail Reforms Committee suggested two kinds of open prisons-

○ Open jails
○ Semi-open jails

The criterion for segregation of prisoners should not be on the basis of their term of
sentence, but overall possibility of prisoner’s propensity to reform and resocialisation.

Punishments
Definitions of Punishment

According to Hobbes Punishment is for the transgression of

rules; and it is inflicted by legally
authorised persons

As per Bentham Punishment is an empirical question

of desire and of the infliction of
sufficient pain to provide an effective
deterrent
Punishment may be defined as an evil resulting to an individual from the direct
intention of another, on account of some act that appears to have been done, or
omitted. Punishment then is an evil- that is a physical evil; either a pain, or a loss of
pleasure, or else of that situation or condition of the party affected, which is the
immediate cause of such pain or loss of pleasure.

It is an evil resulting from the direct intention of another. It is not punishment, if it be

obliquely intentional on the part of the person from whose agency it results, but an
evil of some other nature, but which, however, is not in all cases distinguished by a
specific name.

Synonyms of Punishment

New Roget’s Thesaurus Dictionary The synonyms of ‘punishment’ are

‘penalty, liability, forfeiture, conviction,
domination, purgatory, penance,
nemesis, castigation, penalisation,
discipline, correction, desertion’

‘Punishment’ is synonymous with ‘penalty’. And ‘liability’ and ‘forfeiture’ are

synonymous with ‘punishment’ in connection with crimes of the highest grade. The
punishment or penalty is fixed by the law defining the criminal act.

‘To punish’ means to impose a penalty upon; to afflict with pain or loss or suffering for
a crime on fault; to inflict a penalty for an offence upon the offender; to impose a
penalty for the commission of crime.

Both sanction and punishment mean the evil inflicted upon a wrong-doer, such as
bodily pain, imprisonment etc., through the physical force of the State for the
enforcement of law. Punishments are pre-eminently the sanctions of Criminal law
and they are ultimate sanctions.

Meaning of the term ‘sanction’

However, the term ‘sanction’ is wider than punishment. Sanctions of civil matters
such as restitutions or compensations are not punishments but they are sanctions.
Hence a sanction is not necessarily a punishment or penalty. Sanctions are the
means whereby obedience to a rule is enforced and secured by the instrument of
coercion by which any system of imperative law is enforced.

Liability differs from Sanction and Punishment. Liability is incurred by the

commission of a wrong and consists in those things which a person must do or suffer
for the violation of his duty whereas sanction is applied because he has done
something when he ought not to have done so.

The Elements of Punishment

According to Prof. Hart, the elements of punishment are:

i. It must involve pain or other consequences normally considered

unpleasant;
ii. It must be for an offence against legal rules;
iii. It must be of an actual or supposed offender for his offence;
iv. It must be intentionally administered by human beings other than the
offender;
v. It must be imposed and administered by an authority constituted by a legal
system against which the offence is committed.

The Nature of Punishment

The nature of punishment is in part, determined by reference to its purposes and
functions. According to Jerome Hall, the nature of punishment can be drawn with
reference to the following characteristics:

i. punishment is a privation (evil, pain);

ii. punishment is coercive;
iii. punishment is inflicted in the name of the State; it is authorised;
iv. punishment presupposes rules, their violations and a more or less formal
determination of that, expressed in a judgment;
v. punishment is inflicted upon an offender who has committed a harm and
this presupposes a set of values by reference to which both the harm and
the punishment are ethically significant;
vi. the extent or the type of punishment is related to the commission of a harm,
e.g., proportionately to the gravity of the harm, and aggravated or mitigated
by reference to the personality of the offender, his motives and temptation.

Measure of Punishment or Penal Liability

The determination of the right measure of punishment is often a point of great
difficulty and no hard and fast rule can be laid down, it being a matter of discretion
which is to be guided by a variety of considerations, but the Court has always to bear
in mind the necessity of proportion between an offence and the penalty.
The appropriateness of the nature and measure of sentence in each case depends
upon the gravity of offence, the position and status of the offender, the previous
character and the existence of aggravating or extenuating circumstances.

The Court can use its discretion in fixing the punishment. Court’s discretion depends
upon the measure of penal liability of the crime. In every crime there are three
elements to be taken into consideration in determining the appropriate measure of
punishment. They are:

1. The motives to the commission of the offence

Motive is an inducement or that which leads or tempts the mind to indulge in a

criminal act. The object of punishment is to counteract by the establishment of
contrary and artificial motives with natural motives which lead to crime. The stronger
the natural motives the stronger must be the counteractive which the law supplies.

2. The gravity or magnitude of the offence

The second measurement of punishment is the magnitude of the offence. The

greater the sum of the evil consequences of the offence, the greater will be the
punishment imposed by law. The law also imposes severe penalties and
punishments depending upon the quantum of the profit and benefit accrued by the
offender.

3. The Character of the Offender

In proving a particular criminal act, law does not consider the past character of the
accused according to the law of evidence. However, once his guilt is proved in the
Court, the law then considers his past character in measuring the punishment.

The law adopts the principle that the worse the character or disposition of the
accused the more severe should be his punishment. The person who loses the
sensibility and humanity creates more violence in the society and is awarded severe
punishments. If a man commits the crime under unavoidable circumstances such as
emotional moments, anger, psychological weakness etc., a lesser punishment may
be imposed.

Concept of punishment
Sir Walter Moberly suggests that punishment presupposes the following concepts-

a. What is inflicted is an ill and it is something unpleasant;

b. It is a sequel of an act which is not approved by the authority;
 c. There is some correspondence between the punishment and the act which
has evoked it;
d. Punishment is inflicted by someone’s voluntary act;
e. It is inflicted upon the criminal for his wrong doings.

Theories of Punishment (Purposes of Punishment)

Various theories are advocated to explain the purposes of punishment, namely-

● Retributive Theory
● Deterrent Theory
● Preventive Theory
● Expiatory Theory
● Reformative Theory

A. Retributive Theory of Punishment

The origin of this theory lies in the primitive notion of vengeance against the wrong
doer. According to this theory, it is right and proper, without regard to ulterior
consequences that evil should be returned for evil.

Retribution, in this sense, is based on the saying: “An eye for an eye, a tooth for a
tooth, a limb for a limb, and a life for a life”. Thus, this theory considers punishment
as an end in itself. If an evil has been done it can be undone or negative only by
doing an evil against the wrong doer. Most of the ancient law-givers and jurists
considered retribution as the chief purpose of the criminal justice.
Views of Scholars regarding Retributive Theory of Punishment

According to Sir Walter The retributive theory is based on the

view that punishment is a particular
application of general principle of
justice that men should be given their
due.

According to Kant “Punishment cannot rightly be inflicted

for the sake of any benefit to be
derived from it, either by the criminal
himself or by society, and that the sole
and sufficient reason and justification
of it lies in the fact that the evil has
been done by him who suffers it”
 According to Salmond The retributive purpose of punishment
consists in avenging the wrong done
by the criminal to society.

According to Sir James Stephen “Criminals deserved to be hated and

the punishment should be contrived
as to give expression to that hatred
and to justify by granting a healthy
natural sentiment”

A crime is not only aimed at the sufferer but also at the community and therefore the
community should avenge the wrong and see that retribution overtakes the
wrong-doer. The purpose of punishment is thus to gratify the desire for vengeance
by making the criminal pay with his body.
Criticism of retributive theory

● Critics of retributive theory of punishment say that retribution is in itself

not a remedy for the mischief of the offence but an aggravation of it.
Punishment involves pain and suffering.
● The infliction of suffering, if unredeemed by some corresponding and
compensating good, can only add to the sum total of misery already
occasioned by the offence of the criminal.
● It ignores one of the main purposes of punishment, viz., to reform the
criminal.
● Reformation is not possible by returning the evil to the wrong-doer.
● The theory is regarded by all as a relic of barbarism. It is a cruel form of
punishment.
● In modern times, it cannot be said that the punishment is based only on
vengeance. It is, more or less, considered to be a measure to maintain
order and peace in the society.

B. Deterrent Theory of Punishment

Punishment is said to be deterrent when it is inflicted with the object of showing the
futility of crime and setting a lesson unto others.
 According to Salmond “Punishment is before all things
deterrent and the chief end or law of
crime is to make the evil-doer an
example and a warning to all that are
like- minded with him”.

According to the exponents of the Punishment is meant to prevent other

theory of deterrent punishment
persons from committing similar
offences. The advocates for the
retention of capital punishment rely on
this theory in support of their
contention.

The deterrent theory of punishment requires that the more hardened a criminal; the
severe should be his punishment. The highest punishment of death is justified if the
offence is very grave and such a punishment is called for to deter other people from
committing similar offences.

Main supporters of this theory are-

○ Bentham
○ Plato
○ The Sophists
○ Fischte
○ Locke etc.

The futility of deterrent punishment is evinced from the fact that quite a large number
of hardened criminals return to prison soon after they get released. They prefer to
remain in the prison rather than leading a free life in the society. The object
underlying deterrent punishment is defeated.

If deterrence is really to be brought about and if prevention of crime is to be

substantially effected, one of the ways of doing so is to introduce compensation as a
factor in punishment. If every offender then is made to pay punitive damages to the
aggrieved party in addition to his liability by way of detention for a sufficiently long
term, that would go a long way in deterring the wrong-doer. What the offender
dreads is the loss of liberty for a long time and having to give back what he took after
such heavy pains and risks. So compensation will help in deterrence.
If deterrence alone is treated as the object of punishment, punishment will tend in the
direction of cruelty. The more painful a punishment, the more deterrent it is likely to
be and since no punishment succeeds in deterring everybody from the commission
of the crime, there is always a ground for making it still more severe in order to
increase its impact. Such a notion naturally opens up a prospect of tortures without
limit.
Criticism of deterrent theory

Holmes “This theory is immoral inasmuch as it

gives no measure of punishment
except the law givers’ subjective
opinion ... It is said to conflict with the
sense of justice that the members of
such communities have equal rights
to life, liberty and personal security”

● This theory has also been criticised on the ground of its severity. The
deterrent theory is based on the idea of severe punishments.
● Some prison authorities are of the view that there is a type of prisoners,
who have no foresight, who cannot learn even from the experience of
punishment, much less from the threat of it. In such cases, deterrent
punishment has no say, no effect.
● Deterrent theory is based on the presumption that an offender weighs the
pros and cons of his act and in doing so the prospect of deterrent
punishment would prevent him from consummating his evil designs.
● This presumption stands rebutted at the hands of habitual offenders and
hardened criminals.

C. Preventive Theory of Punishment

According to Justice Holmes “There can be no case in which the

law-maker makes certain conduct
criminal without his thereby showing a
wish and purpose to prevent that
conduct. Prevention would
accordingly seem to be the chief and
only universal purpose of punishment.
The law threatens with certain pains if
 you do certain things, intending
thereby to give you a new motive for
not doing them. If you persist in doing
them, it has to inflict the pains in order
that its threats may continue to be
believed”.

According to Salmond “We hang murderers not merely that it

may put into the hearts of others like
them the fear of a like fate, but for the
same reason for which we kill snakes,
namely, because it is better for us that
they should be out of the world than in
it”

In England, the supporters of the theories are Bentham, Stuart Mill and Austin. They
asserted that it is the certainty of law and now its severity which has a real effect on
offenders.

The preventive theory says that the punishment is for the purpose of disabling or
preventing the offender from committing the offence again. In olden days the
offender was prevented from committing the offence again by forfeiture of the
offending limb. Thus a thief could be made to lose his hand, or a sexual offender
could be castrated. Mutilation was very common. The offender who has committed
a murder may be punished with death, thus removing all possibility of any further
crime by him. Prevention of crime is served also by the exilement of the offender.

Prevention can also be brought about by imprisoning the offender for a sufficient
period of time, so as to immediately prevent him from committing crime and bring
about a change in his character or outlook. In such cases, prevention is sought for,
not by elimination, but by reformation, enabling the preventive and reformative ideas
of punishment going hand in hand.

In modern times, certain other preventive measures are adopted in various new
kinds of offences e.g. forfeiture of office, suspension or cancellation of licence etc.
There are other preventive measures such as preventive detention applied against
the persons who threaten to commit offences, or, are otherwise dangerous to the
society. But these preventive measures must be distinguished from punishment
which is punitive.

Preventive mode of punishment works in three ways-

 1. By inspiring all prospective wrong-doers with the fear of punishment;
2. By disabling the wrong-doer, and
3. By transforming (by re-education) the offender so that he would not commit
crime again.

The real object of the penal laws is to make threat generally known rather than
putting it occasionally into execution. It makes the theory realistic and humane. It is
effective for discouraging anti-social conduct and a better alternative to deterrence or
retribution which now stand rejected as methods of dealing with crime and criminals.

It is now generally recognised that, with the advance of civilization, death penalty has
become incongrous. Murders in a preponderently large number of cases are never
premeditated. They are committed in a moment of excitement. Provocation and
anger may be the other causes. They benumb all sense of reason and blind him to
its consequences. This torrent of anger and provocation deadens his intellect, chills
sense, debases his soul and enervates him, but this state is only ephemeral and,
after he gets over the temporary insanity, the murderer becomes a normal human
being and is repentant for his conduct. In such cases to punish the offender with
capital punishment to prevent the wrong-doer commit crime again is meaningless.
Criticism of the Preventive Theory

The main critic of the preventive theory is Kant. He says that this theory treats a man
as a thing, not as a person, as a means not as an end in itself. The idea of
prevention of crime is simply not possible by detaining a criminal for a long time in
jail as the wrong doer in prison learns many bad things from other criminals.

D. Expiatory Theory of Punishment

This theory is linked with the retributive theory and is, sometimes, considered to be a
part of it. Hegel and Kohler are the main supporters of this theory. Hegel says that
the punishment makes the criminal to expiate for the wrong done. This theory is
based on morals.

According to this theory if the offender expiates or repents for the crime, he should
be forgiven - as his expiation or repentance is itself a punishment. This method of
punishment was also common in ancient India where expiations were performed by
way of penance which varied in form and severity. The severity of the penance did
not always depend either upon the degree of moral culpability or upon the baneful
result of the act. In some cases the penance consisted of uttering certain mantras,
ablution, fasting, amputation of a limb caused by the penitent himself,
self-immolation, or burning oneself to death, etc.

This theory is now obsolete. The principles of morality now cannot wholly and solely
come under the domain of law. At present the organisation of state, its functions,
human habits, attitudes have all developed to a great extent. According to Paton this
theory is based on moral doctrines, and, therefore, is beyond the limits of modern
law and jurisprudence.

E. Reformative theory of Punishment

This theory is of recent origin. This theory owes its origin to the Italian school
headed by Lombrosa and the French writer La Gassaque.

The main object of this theory is to reform the character of the criminal so that he will
desire to do what is right instead of fearing to do what is wrong.

The sociological school headed by Ihering has evolved this theory of punishment
according to which criminal sanctions should be adjusted to the criminal and not the
crime. According to them punishment should be subservient to the education and
discipline of the criminal.

Important characteristics of reformative theory

1. This theory points out that a crime is a disease so proper care should be
taken of those who have committed a crime instead of awarding a severe
punishment.
2. The punishment should be curative, medicinal, clinical and educative rather
than inflicting of physical injury or pain upon the wrong-doer.
3. This theory takes into account the factors which compel the criminal to
commit crime namely his family, education, culture, socio-economic
background etc.
4. It concentrates not on crime but on the criminal, his personality and all other
related factors which led him to do wrong.
5. The subject of punishment is to find out the cause, the reason which
compelled an individual to commit a crime and then try to eradicate the
criminal tendency in him through education.
6. This theory makes a study of the psychology of the criminal and takes
punishment as a means to a social end.
7. The defective mental condition of the criminal is also a reason for the
commission of crime. In other words, crime is the result of a disease.
 8. This theory puts more emphasis upon the personality of the offender and
considers him to be a patient who should be given a proper treatment.
9. It makes punishment not an end in itself, but as a means to an end.
10. According to this theory, the purpose of punishment should be to reform the
criminal and to make him a good citizen.

As Prof. Vinogradoff observes-

“The Judge stands to the criminal in the position of the doctor who selects his
remedy after diagnosing the disease and the resources of the patient’s organisation”.

Crime is a pathological aberration and the criminal can ordinarily be redeemed. The
State has to rehabilitate rather than avenge. The sub-culture that leads to anti-social
behaviour has to be countered not by undue cruelty but by re-culturisation.

Human society today views sentencing as a process of reshaping a person who has
deteriorated into criminality and the modern community has a primary stake in the
rehabilitation of the offenders as a means of social defence. No criminal, however
heinous his offence, may therefore, be punished with death. For the same reason, it
is urged that floggings and other corporal inflictions which degrade and brutalise the
criminal should be abolished.
Criticism of reformative theory

It has been criticised on a number of grounds. It is said that there are dangers in the
practical application of the theory.

i. If criminals are sent to prison in order to be transformed into good citizens,

prisons will be turned into dwelling houses far too comfortable to serve as
any effectual deterrent to such class of persons
ii. Here are in the world men who are incurably bad and are beyond the reach
of reformative influences
iii. Crime will be a profitable industry which will flourish accordingly.
iv. Its application is limited in the sense that it cannot be applied in cases of
habitual offenders, because it is not easy to change habits.
v. This is a type of theory which cannot be applied in every society.

Salmond concludes that the perfect system of criminal justice is based on neither the
reformative nor the deterrent principle exclusively, but the result of a compromise
between them. In this compromise it is the deterrent principle which possesses
predominant influence. The reformative element must not also be overlooked,
though it should not assume undue importance.
Forms of punishment
● Flogging
● Mutilation
● Stoning
● Fines
● Forfeiture of property
● Banishment
● Solitary confinement
● Imprisonment for life
● Imprisonment
● Capital Punishment

a. Flogging

It was one of the most common methods of punishing criminal which was used in
earlier period. In India also this mode of punishment was recognised under the
Whipping Act of 1864 which was later abolished in 1955. The method used was
whipping the offenders and punishing them for their offence. However, the method
was criticised by several scholars as improper and not useful in correcting the
behaviour of the offenders.

b. Mutilation

It was a kind of corporeal punishment which was in common use during early times.
This mode was adopted in India also during ancient period. Brutal methods were
adopted to punish the offenders such as chopping of their hands; legs in case they
were found guilty of some offence.

c. Stoning

Stoning the criminals to death was also one of the form of the mode of punishment
which was given to offenders. Generally the offenders who were found guilty of
sexual offences were punished by stoning. This punishment was barbaric in nature
which was usually given to habitual offenders involved in heinous offences such as
sex-crimes.

d. Fines
Imposition of fine was a common mode of punishment which was imposed when the
offence was not of very grave in nature. Fine as penalty was imposed for the crimes
such as theft, fraud, gambling etc.

In the case of Adamji Umar Dalal v. State [AIR 1952 SC 14], it was observed, “In
imposing fine, it is necessary to have as much regard to the pecuniary
circumstances of accused person as to the character and magnitude of the offence.”

e. Forfeiture of property

Sec. 53 of the Indian Penal Code provides for forfeiture of property as a form of
punishment. There are two offences specified under Sec. 126 and 169 of IPC that
provides for confiscation of property besides the punishment with or without fine.

f. Banishment

It may be defined as a practice of transporting of habitual offenders to far off places

and eliminate them from the society for punishing them. The practice of
transportation was also existed in penal system of British India. It was known as
‘Kalapani’.

g. Solitary confinement

Confining the convicts in solitary prisons without work was a common mode of
punishment for hardened criminals. This form of punishment was intended to
eliminate criminals from society and incapacitating the habitual offenders to repeat
the offence. Sec. 73 and 74 of the Indian Penal Code deals with the provisions of
‘solitary confinement’.

h. Imprisonment for life

The Indian Penal Code prescribed five types of punishment which are as under-

○ Death
○ Life imprisonment
○ Imprisonment- Simple or rigorous
○ Forfeiture of property
○ Fine

Sec. 53 of Indian Penal Code provides ‘imprisonment for life’. In the case of Naib
Singh v. State [AIR 1983 SC 855]- The Supreme Court held that the ‘nature’ of the
punishment of imprisonment for life is rigorous imprisonment only and a criminal
Court may issue warrant and direct the punishment to the offender for imprisonment
of life.

i. Imprisonment

It is the simplest penal and common form of punishment. It proved to be an efficient

method of punishment. Conditions of imprisonment in civilised counties have
undergone radical changes in recent decades.

j. Capital Punishment

It is also known as death penalty. It may be defined as an execution of an offender

sentenced to death after conviction by a Court of law of offenders. In India, capital
punishment is awarded for murder, gang robbery with murder, abetting the suicide of
a child or insane person, waging war against the government, and abetting mutiny by
a member of the armed forces.

It is also given under some anti-terror laws for those convicted for terrorist activities.
The death sentence is imposed only when the Court comes to the conclusion that life
imprisonment is inadequate based on the facts and circumstances of the case.

Article 21 of the Constitution of India states that no person shall be deprived of his
life and liberty except according to the procedure laid down by law. Under Article 21,
every person has the Right to Life which has been guaranteed by the Constitution.

The Indian Penal Code, 1860 provides for the provision of a death sentence for
various offenses like criminal conspiracy, murder, waging war against the nation,
dacoity and murder, etc. Various other legislations like the NDPS Act and Unlawful
Activities Prevention Act also provides for the death penalty.

Bachan Singh v. State of Punjab [AIR 1980 SC 898]- The question of the validity of
capital punishment and in this case, the doctrine of “rarest of the rare” was
formulated. The five Judge Bench stated that the taking of human life should not be
encouraged even in the form of punishment except in “rarest of the rare” cases
where no alternative method can be used and is foreclosed.

Recidivism
Introduction
The term ‘recidivism’ may be defined as the habit of relapsing into crimes by the
criminals and recidivist is a person who relapses into crime again and again.
The term is derived from the Latin term which means ‘back’ and it means an act of a
person repeating an undesirable behaviour after they have either experienced
negative consequences of that behaviour. It also refers to the former prisoner who is
arrested for same offences.

Categories of Offenders
● Innocent Convicts
● Insane Criminals
● Criminals by accident
● White Collar criminals
● Habitual offenders
● Habitual offenders
● Occasional criminals
● Political offenders

Recidivism means ‘a falling back’ and usually implies ‘into bad habits’. It comes from
the Latin word ‘recidivus’ which means ‘recurring’. ‘Recidivists’ tend to relapse, or
‘fall back’ into old habits and particularly crime.

Definition of Recidivism

Merriam Webster Dictionary It is a tendency to relapse into a

previous condition or mode of
behaviour; or

Relapse into criminal behaviour

Recidivism is one of the most fundamental concepts in criminal justice. It refers to a

person’s relapse into criminal behaviour, often after the person receives sanctions or
undergoes intervention for a previous crime. It is measured by criminal acts that
resulted in rearrests, reconviction or return to prison with or without a new sentence
during a three-year period following the prisoner's release.

Causes of Recidivism
According to G.B Vold, “prevalence of recidivism offers a serious stumbling block to
a too ready acceptance of the idea of readily achieved reformation.”

He prefers to classify criminals into four major categories which are as under-
 a. Psychologically disturbed criminals who commit crime due to their mental
depravity or emotional instability. According to Vold, there are around 30%
of offenders who belong to this category.
b. Criminals who are uneducated and unskilled usually gets effected by it as
they commit crime again and again even after getting punished. Around 40
% of criminals fall under this category.
c. Criminals who are psychologically abnormal, in indulge in illegal activities
and commits crime again and again. Only 10% of criminals fall under this
category.
d. This consists of criminals of hardened category who are professional
criminals, they are engaged in prostitution houses; gambling dens; selling of
liquors illicitly etc. There are around 20% of criminals falling under
this.
e. According to some Scholars, recidivism depends to a large extent on the
response to the initial act of the offender. It is based on society’s/
community’s response to change the habitual offender.

Measures to combat recidivism

1. Corrective work inside the prison institution and keeping the inmates
engaged during the period of their incarceration is the most effective
method of the reformation of criminals.
2. Greater importance to treatment of offenders must be given; shifting of
emphasis from crime to criminals.
3. Every possible endeavour must be made to ascertain the cause of
criminality to be cured through a process of diagnosis.
4. The modern corrective method seeks to mitigate the emotional
maladjustments of the offenders.
5. The aim is to make the inmate realise the undesirability of his unacceptable
behaviour and to assist him to follow a socially acceptable course of
conduct.

Recidivism in India
Reformative measures of treatment completely fail in case of recidivists offenders.
Imprisonment is the only alternative to prevent them from repeating crime. Various
State and jurisdictions may have laws targeting recidivists, and specifically providing
for enhanced or exemplary punishments or other sanctions.
Various Countries are designed to counter recidivists by physical incapacitation via
imprisonment. Laws punishing recidivists are existent in several jurisdictions, right
from the U.S.A to Pakistan, India and Australia.

The substantive content of the law and the sentence prescribed therein may vary
from country to country, and from State to State, but generally they apply when a
person has been convicted a minimum of twice for various crimes.

It must be stated that incidence of crimes in urban areas is more than rural regions.
According to research and studies conducted in this regard, it was concluded that
male are more prone to commit offences as compared to females.

In the case of Mhd. Giasuddin v. State of Andhra Pradesh [AIR 1977 SC 1926]- The
Apex Court observed, “The State has to rehabilitate rather avenge.”

Crime Prevention
Introduction
Prevention of Crime and protection against criminals may broadly be defined as
anything which reduces the incidence of crime. The focus is on making the
environment safe from crime and reducing the potential for crime in high-risk
situations.

It may be defined as reduction of the incidence of crime or perceive fear of crime.

The aim is to make the society safe from crime by punishing criminal for their
offence.

The term ‘crime prevention’ in the broadest sense, encompasses any activity that
has the effect of reducing crime. It includes a broad spectrum of activities, ranging
from the social development approach to the prevention of opportunity through to
deterrence. These include diversion of offenders prior to charging and dealing with
offenders after sentence. A comprehensive strategy for crime prevention would
include a complete range of activities covering all levels of intervention and elements
of the crime event.

Meaning of the term ‘crime’

Crime is any action or offence that defies a State or Country and is punishable by
law. Crime has many definitions. In fact the most common thing about these
definitions is that crime is punishable. Crime cuts across many disciplines such as
sociology, psychology and criminology.

There are two main types of crime-

 ○ Violent crimes- Violent crime constitutes when someone decides to harm
threaten and conspire against someone else.
○ Property crime- It constitutes someone who damages destroys or steals
someone’s property. Both violent and property crimes are offences which
involve force and damage to society.

The United Nations Universal Declaration of Human Rights, 1948 had emphasised
that crime prevention involves programs for protection of witnesses and victim’s
assistance, reparation, reconciliation, re-integration etc.

Modes of prevention of crime

According to Brantingham, the crime prevention involves three areas-

● Primary Prevention
● Secondary Prevention
● Tertiary prevention

a. Primary prevention

It refers to location such as residence, school, neighbourhood, society etc. which

involves altering of the environment in such a way that the basic cause of crime is
eliminated. It is based on social disorganisation theory.

b. Secondary prevention

It refers to reducing opportunities for crime and increasing the risk of committing
crimes. It deals with the enforcement of law process. It deals with the prevention of
delinquents in falling into bad company.

c. Tertiary prevention

It is derived from the field of medicine to describe procedure to be followed after

threat of crime is manifested. It includes personal injury and property insurance as
well as self-protective measure etc.

Tertiary prevention involves the full range of responses that occur after a crime has
been committed. The vast majority of the activities of the criminal justice system are
tertiary interventions. The objective is to rehabilitate or incapacitate the offender
(deter recidivism), deter others who might consider similar behaviour, and repair
some of the damage done to the victim.

Objective of crime prevention

 1. Crime prevention includes reducing and deterring crime and criminals from
committing crimes.
2. Crime reduction is quite similar to crime prevention, for crime reduction to
occur we need to prevent it at first.
3. Crime prevention strategies are usually implemented by criminal justice
agencies, individuals, businesses and non-governmental agencies in order
to maintain order and enforce the law.
4. Crime prevention strategies not only deter crime but also reduce the risk of
increasing victimization in the society.
5. Crime prevention has many objectives but the most main objective is to
reduce and deter crime. Many criminal justice agencies have developed
strategies through public policy in order to prevent crime.

‘Juvenile or Delinquent crimes’

When a juvenile commits an act that would be criminal if committed by an adult, the
juvenile is determined to be delinquent. Delinquent acts may include crimes against
persons, crimes against property, drug offenses, and crimes against public order.

Prevention of juvenile crimes

Delinquency prevention efforts seek to redirect youth who are considered at-risk for
delinquency or who have committed a delinquent offense from deeper involvement in
the juvenile justice system.The problem of youth crime is complex and requires the
involvement of the families, communities, schools, and often other agencies, to
develop and implement prevention initiatives.

In dealing with children it is very important to understand the cause of criminal

behaviour. Factors such as family violence, lack of support and supervision,
substance abuse, etc., should become the focus. Early intervention plays an
important role in keeping minors from embarking on a life of crime. Swift and
consistent punishment for offences can help reduce the incidence of crime.

Socio-economic status is another interesting risk factor. While in some studies it is

directly associated with delinquent behaviour, other studies have found that
regardless of socio-economic status, those children who were raised by distressed
and unsupportive caregivers in unstable families had a greater chance of developing
problem behaviour than did children who had nurturing caregivers and grew up in
supportive homes.
After serving their sentence, young offenders receive support aimed at preventing
re-offending.Lack of support to victims can result in victimization which leads to
further suffering for the victim.

The provision of victim support services to deal with the effects of the crime is
essential for responding effectively. The use of alternatives to the traditional Court
system allows more involvement of victims in the process.

Criminality and domestic violence in families need to be attended to check crime

prevention. Emotional pressure and frustration build in family which leads to
disturbed childhood of youth. Other reasons could be poverty; male dominance;
domestic violence; illiteracy etc.

Problems involved in juvenile crime prevention

Juvenile crimes cannot be stopped only through the proper implementation and
amendments of Juvenile Justice Act. In order to reform the juvenile in conflict with
law, the juvenile system as a whole needs to be reformed first.

The nation must strike to provide education, health care, sanitation and housing to
every child. Apart from multiple laws governing children, there exist many other
problems at the grassroots level. Government-sponsored children’s homes are often
unable to accommodate neglected children. Children are sometimes even kept in
jail.

Thus, there is a problem in the execution of laws pertaining to children and the
maintenance of children’s homes due to both a lack of awareness of child rights and
India’s burgeoning child population.

Remedies for juvenile delinquency

● Preventive Methods
● Reh abilitative or curative method

Preventive Methods

○ Creating and inspiring a team of work of private and public agencies

devoted to preventive work.
○ Giving proper training to the members and staff of all organisations
concerned with delin­quency control.
○ Establishing child guidance clinics to give appropriate treatment to the
disturbed and mal­adjusted children.
 ○ Establishing wholesome recreational agencies to prevent young children
from becoming the victims of illicit or unwholesome recreation.
○ Giving proper assistance to under-privileged children to build in them
good character and law-abiding attitude.

Method of Rehabilitation
Legislative Measures

a. Apprentices Act of 1850

The Act provides for the binding of children, both boys and girls, between the ages of
10 to 18 as apprentices. The Act also dealt with children who committed petty
offences.

b. Reformatory Schools Act of 1897

This Act can be considered a landmark in the history of treatment of delinquency.

This Act is in force in almost all the states of India. No person may be detained in it
after he attains the 18th years.

c. Provision in the Criminal Procedure Code

Under Sec. 399 of the Criminal Procedure Code convicted young offenders below
the age of 15 could be sent to Reforma­tory Schools established by the State
Government.

Under Sec. 82 of the Indian Penal Code children under seven cannot be held
responsible for their crimi­nal acts. Sec. 83 of IPC relaxes this age upto 12 under
some conditions.

e. Probation of Offenders’ Act

Under these Acts Juvenile Courts can place the youthful offenders under the
supervision of probation officers.

Sr. No. Details

1 Ahamed Siddique-Criminology Problems and Perspectives

2 Dr. M. Ponnian-Criminology and Prnology

3 Dr. Rajendra K. Sharma-Criminology and Penology

4 Dr. Sirohi-Criminology

5 Paranjape-Criminology

6 Bames and Teeters-New Horizons of Crminology

7 Sutherland-Criminology

8 Taft and England-Criminology

9 Siegel-Criminology