Quantum of punishment is a curse or elixir of life for the victim

QUANTUM OF PUNISHMENT IS CURSE OR ELIXIR OF LIFE FOR VICTIM ?

Introduction

Punishment is a consequence against the offence given by the state or the respective authority. In criminal law there are three players who play an important role. They are the state, victim, and offender. The state has the power to punish the accused on behalf of the victim and make laws. Article 246 of the Constitution of India defines that Parliament and State legislature has exclusive power to make the laws with respect to any of the matters enumerated in List I, II in the Seventh Schedule respectively[1]. The Concurrent List enumerated in The constitution includes laws of both the Indian Penal Code (hereinafter referred to as IPC) and Criminal Procedure Code.[2]

Hobbes stated that every person is free to do what he or she wants to do for his survival. Human nature is completely based on his desires. He is selfish in nature. He always wants to become superior to another person. As a result, everyone is suffering from fear of death, poor, nasty, and brutish life. But, his views were criticised because there should an authority for surveillance in the society who take cares of citizen and ensure the protection of the rights of the individuals. The state or authority authorized by the state should deter the wrongdoer and thereby give lessons to other people in society.

Manu, in his Dandaniti(penal policy) recognized punishment itself as a form of Dharma,  It is the duty of the king to punish the offender[3].

According to H.L.A Hart, Punishment is divided into five parts, that is unpleasant experiences, punishment for breach of legal rules, the ground of the offence, mens rea of the offender and constituted authority within the legal system. Similarly, Hugo Grotius defines punishment in the following manner:

1. The one who is inflicted is the ill one, which is something unpleasant.
2. It is a sequel to some act which is disapproved by the state;
3. There is some co-relation between punishment and the criminal act which is invoked it;
4. Punishment is inflicted or imposed by someone’s voluntary act;
5. It is inflicted upon the criminal or someone who is supposed to be answerable for his wrongdoing[4].

In the case of SurendraNath Banerjee v Chief Justice and Judges of the High Court^[5]Sir B. Peacock held that “Code merely defines the several offences thereby created, and provides the punishments to which offenders are to be liable”.ButIPC does not define the definition of punishment under section 53 of chapter III[6].

The aim of the punishment is to protect the society against crime and criminals. Punishment is a method of reducing criminal behavior either by deterring the offender for non-repetition of an offence or by reforming them into law-abiding citizens. Offence is classified into two categories such as cognizable offense and non-cognizable offence. In cognizable offenses, a police officer has the right to make an arrest without a warrant and to initiate an investigation with or without the permission of the court. Whereas in the non-cognizable offence, a police officer has to take permission from the court and is not vested with the authority to make an arrest without a warrant. Totooffences can be classified according to the intensity of committing offence such as murder, rape, theft, etc. Quantum of punishment is given according to the offence committed by the offender.

Fine is a token of money, which is imposed by the state or authority over the accused. The importance of fine is when an offence is not grievous, at that time fine will be imposed. Sometimes offender has to undergo imprisonment as well as pay fine.

Research would be confined on express provisions of fine under IPC. IPC 1860, has successfully completed one sixty years. Still there is no drastic change in IPC. In today’s scenario,there is an urgent need for some reforms in IPC.Punishment should be symbolic so that offender deters to repeat that offence again. A high penalty  levied by court will help in funding victim for his compensation.

Impact of Punishment

There are two school of thoughts working in punishment theories. According to first thought, punishment is a weapon, which helps to restrain crime, and thus punishment must be strict. Whereas according to other thought, purpose of punishment is not only to focus on deterring the offender from committing the offence again, but also to focus on reintegration of offender into society. Punishment must be therefore flexible, curative and protective in nature or in another words it should be reformative.

Theories of punishment reflects the changing reaction towards crime and transformation of society in contempory world. The main theories of punishment are as following:

1) Deterrent Theory

Bentham is the founder of deterrent theory of punishment. It is based on principles of hedonism, which state that punishment should deter wrongdoer, and give lesson to others who might be attracted to do an offence.

The primary objective of the theory is to create some kind of fear in the mind of others by providing punishment or heavy penalty to offender thereby keeping him away from criminal act. In India, deterrent theory lie in offence of theft, Unlawful Assembly etc. G W Paton supported deterrent theory and stated that this kind of punishment leads to protecting society and others are deterred from law breaking[7].

2) Retributive Theory

Retributive Theory mainly belongs to primitive society. This theory is based on “as you sow, so shall you reap” in another words eye for an eye and tooth for a tooth.The supporter of the punishment does not believe in welfare society. It emphasized that pain should be inflicted on the offender in the form of punishment and thereby make the offender realize his act.

ButIndian criminal system does not accept this theory. The reason is this theory is based on revenge and our Indian society, culture and laws are based on reformation or in another words consider forgiveness as the biggest charity.

3) Preventive theory

The preventive theory tries to disable him or incapacitate him through measures such as imprisonment, forfeiture, suspension of licenses. The sole purpose of punishment is to prevent the accused from doing an offence or take away his physical power of committing an offence. The development of the institution of prison, open jail etc. is an outcome of the preventive theory. This theory applicable in India. 

4) Reformative theory

Reformative theory of punishment, which is based on reformation of offender and thereby send him back in the society. In other wordsit tries to socialize the offender so that the factor-affecting offender to do a crime gets eliminated and he gets a chance to live in society with same respect as that of others.

Parole and probation is an outcome of this theory. India follows this theory and have statue for this which is The Probation of Offender Act, 1958.

Each of the theory of punishment has its own merits and demerits. Therefore, no single theory will serve the interest of criminal justice system. India Penal Code is based on compilation of all these theories of punishment.

Any conduct, which harms an individual to some extent harms the society, because society is made up of individuals; and therefore although it is true to say that crime is an offence against society[8]. Therefore,the crime has direct effect on society. If evil- doer is roaming in a society freely then following issues raise. Such as there is no authority to take care of society member, no fear in the eyes of criminal and there are more chances to do crime in society and lastly it gives a lesson to other members in the society. To prevent these issues in the society, punishment’s are imposed. There is no specific definition of crime in IPC, 1860 but under section 53 (Punishment) mentions types of punishment. The punishments are as follows:

1)      Death ;

2)      Imprisonment for life;

3)      Imprisonment, which is of two descriptions, namely-

a)      Rigorous

b)      Simple

4)      Forfeiture of property;

5)      Fine.

To understand impact of punishment we need to focus on psychology or human behavior of theperson. For this, two school of thought works. First school says that punishment has weak effect, suppressing the punished behavior is more important[9]and second School of thought says severe punishment are more effective and may produce complete suppression of offence.[10]

According to the report of Statistical Branch of National Crime Records Bureau (NCRB), 2018[11] states that 31, 32,954 cases of crime under IPC, 1860were registered in 2018. Data shows that awareness to register a case increases but frequency of committing crime does not decrease.

29,017 cases of murder were registered during 2018, showing an increase of 1.3% over 2017(28,653). Cases of Kidnapping and abduction increased by 10.3%. The crime rate per lakh women population is 58.8 in 2-18 in comparison with 57.9 in 2017. The crime rate per lakh children population is 31.8 in 2018 as compare to 28.9 in 2017.

Above data indicate that there is need to do reform in punishment laws in India. The Indian system does not support retributive theory of punishment[12] . In ShivajiBobadevs State of Maharashtra[13]it was held that primitive strategy of IPC does not sufficiently reflect the modern trends in correctional treatment and personalized sentencing. Capital punishment is given only in rarest of the rear case. This was held in Bachan sing vs State of Punjab[14].

Therefore Indian criminal justice system is basedon reformative and rehabilitation theory. The sole goal of punishment is curative. This was held in Nadella Venkatakrishna Rao case. Ttherefore,Indian Criminal justice system need to be morerigid in the light of increased crime rate in India. Data shows that offenders are not deterring from consequences of crimes. If there is no fear in society and there is no inflation of pain then crime rate increases. At least Indian Criminal Justice needs to classify crimes, which have inflations of pain according to intensity of crime then it will be symbolic otherwise crime rates will increase day by day.

Is fine an adequate relief?

Fine is a price paid for a certain behavior. Fine is a form of penalty.According to Mr. J.R. Lucas punishment is for mala in se offenses, whereas penalty is mala prohibita in nature[15]. Indian penal code, 1860 has not defined the term fine but has provisions relating to it under section 63-67. The purpose of fine[16] are following:

1. Any monetary penalty imposed by a court for an offence
2. Any monetary penalty imposed by a court for contempt of court,
3. Any amount payable under a penalty notice enforcement order
4. Any court fees or charges payable by a person under an order made by a court in proceeding for an offence
5. Any victims support levy

Indian Penal Code, 1860 defines fine into categories such as,expressed fine in which fine   amount is mentioned in terms of rupees whereas the other is that fine where fine amount is not mentioned but one condition is imposed that  extension of amount of fine  would be unlimited, but shall not be excessive[17].

Indian Penal Code, 1860 successfully completed one sixty years. At that time calculating the quantum of fine was difficult. The reason was because at that time gold and silver coins used by the people and it was difficult to estimate the value of money. In today’s regime, various indicator are there to estimate currency value of India. 1 USD = 71.2564 INR. In IPC, the express provision of fine are following:

Section No	Offence	Penalty
137	Deserter concealed on board merchant vessel through negligence of master	500/-
140	Wearing garb or carrying token  used by soldier or airman	500/-
171	Wearing grab or carrying token used by public servant with fraudulent intent	200/-
172	Absconding to avoid serving summons or other proceedings If summon or notice is to attend in person or by an agent or to produce a document or an electronic record in a court of justice	500/-       1000/-
173	Preventing service of summons or other proceeding , or preventing publication thereof	1000/-
174	Non- attendance in obedience to an order from public servants Summon or notice attend in person , or any agent	500/- 1000/-
175	Omission to produce document or electronic record to public servant by person legally bound to produce it	500- 1000/-
176	Omission  to give notice or information to public servant by person legally bound to give it	500-1000/-
177	Furnishing false information	1000-2000/-
178	Refusing oath or affirmation when duly required by public servant to make it	1000/-
179	Refusing  to answer public servant authorized to question	1000/
180	Refusing to sign statement	500/-
182	False information, with intent to cause public servant to use his lawful power to the injury of another person	1000/-
183	Resistance  to the taking of property by the lawful authority of a public servant	1000/-
184	Obstructing sale of property offered for sale by authority public servant	500/-
185	Illegal purchase or bid for property offered for sale by authority of public servant	200/-
186	Obstructing public servant in discharge of public functioning	200/-
187	Omission to assist public servant when bound by law to give assistance	200 - 500/-
188	Disobedience to order duly promulgated by public servant	200-1000/-
272	Adulteration of food or drink intended for sale	1000/-
273	Sale of noxious food or drink	1000/-
274	Adulteration of Drugs	1000/-
275	Sale of adulterated drugs	1000/-
276	Sale of drugs as a different drug or preparation	1000/-
277	Fouling water of public spring or reservoir	500/-
278	Making atmosphere noxious to health	500/-
279	Rash driving or riding on a public way	1000/-
280	Rash navigation of vessel	1000/-
282	Sending a person by water for hire in an unsecured or overloaded ship	1000/-
283	Danger or obstruction in  public way or line of navigation	200/-
284	Negligent conduct with respect to poisonous substance	1000/-
285	Negligent conduct with respect to fire or combustible matter	1000/-
286	Negligent conduct with respect to machinery	1000/-
288	Negligent conduct with respect to pulling down or repairing buildings	1000/-
289	Negligent conduct with respect to animal	1000/-
290	Punishment for public nuisance in case not otherwise provided for.	200/-
293	Sale, etc. of obscene objects to young person	2000-5000/-
294 A	Keeping lottery office	1000/-
334	Voluntarily causing hurt on provocation	500/-
335	Voluntarily causing grievous hurt on provocation	2000/-
336	Act endangering life or personal safety of others	250/-
337	Causing hurt by act endangering life or personal safety of others.	500/-
338	Causing grievous hurt by act endangering life or person safety of others	1000/-
341	Punishment of wrongful restraint	500/-
342	Punishment for wrongful confinement	1000/-
491	Breach of contract to appear on and provide wants of helpless person	200/-
510	Misconduct in public by a drunken person	10/-

 

Above table of express provision of fine indicates that lowest fine in IPC is 10/- and highest fine is 5000/-.

Therefore, current value of rupees is 10 is equivalent to 1 rupees. Fine need to be reform according to the contempory situation and periodically revise. These amount of fines do not fit in today’s scenario and therefore should be amended accordingly taking into consideration the relevant factors of change occurred in people’s lifestyle, thought, increasing monetary support etc.

Conclusion

Indian Penal Code, 1860 needs to be reformed according to contemporary situation. Punishment and penalty should be symbolic thus, offender or those thinking to commit an offencewould be deterred and should worry about the inclination of pain so that crime rate will reduce. The government should impose heavy penalties and fine to support the victim to move ahead in his life. Moreover,every law needs to be revised periodically to cope up with the everyday changing scenario.

References

N.V.Paranjape,STUDIES IN JURISPRUDENCE AND LEGAL THEORY, central law agency, 7th ed.,2013,p.245.

[1] N.V Paranjape, CRIME AND PUNISHMENT TRENDS AND REFLECTIONS,1sted.,2016,p.230

Anupama Sharma, Fines as a punishment in Indian Penal Code: A jurisprudential failure or commodification of an offence? , vol.  32(3), journal of contemporary criminal justice, 2016

Australian Fines Act, 1996, no 99, sec.

https://www.legislation.nsw.gov.au/#/view/act/1996/99/part1/sec4, visited on 7-02-2020.

Indian Penal Code, 1860.

Lerman  andVorndran, on the Status of Knowledge for Using Punishment: Implications for Treating Behavior Disorders, vol. 35, 2002, Journal of Applied Behavior Analysis, pp. 431-464.

Azrin N.H, Effects of punishment intensity during variable-interval reinforcement, vol. no. 3 (part 2), Journal of Experimental Analysis of Behavior, pp. 123-142.

Report on crime in India 2018 , National Crime Records Bureau Ministry of Home Affairs, http://ncrb.gov.in/StatPublications/CII/CII2018/cii2018.html, visited on 07-02-2020.

Nadella Venkatakrishna Rao vs. State of A.P, AIR 1978  SC 480.

ShivajiSahebraoBobade vs. State of Maharashtra AIR 1973 SC 2622.

Bachan Sing Vs. State of Punjab, 1980.

Joseph shines vs. union of India, 2018

G.W.Paton, A TEXTBOOK OF JURISPRUDENCE, 4th ed.,1972, p.201.

SurendraNath Banerjee v Chief Justice and Judges of the High Court at Fort William in Bengal 10 ILR Cal 109.

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Drafted by Advocate Ankita Verma 

BA LLB BARKATULLAH UNIVERSITY, BHOPAL,

LLM MNLU NAGPUR

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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[1]CONSTITUTION OF INDIA.art.246, cl.1, 2, article 246 subject-matter of the laws made by the Parliament and by the legislature of the state-

1) Notwithstanding anything in clause (2) and (3) parliament has exclusive power to make the laws with respect to any of the matters enumerated in List I in the seventh schedule ( in this constitution referred to as the “Union List”.

2) notwithstanding anything in clause(3), parliament and, subject to clause 91), the legislature of any state also, have power to make laws with respect to any of the matters enumerated in List III in the seventh Schedule( in the Constitution referred as the “Concurrent List”.

3)  subject clause (1) and (2), the legislature of any state has exclusive power to make laws for such state or any part thereof with respect to any of the matters enumerated in List II in the seventh schedule( in this Constitution referred as the “State List”.

 4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in the state notwithstanding that such matter is a matter enumerated in the State List.

[2] CONSTITUTION OF INDIA, Entry 1, 2 Concurrent List, Schedule 7.

[3] N.V.Paranjape,STUDIES IN JURISPRUDENCE AND LEGAL THEORY, central law agency, 7th ed.,2013,p.245.

[4] N.V Paranjape, CRIME AND PUNISHMENT TRENDS AND REFLECTIONS,1st ed.,2016,p.230.

[5]SurendraNath Banerjee v Chief Justice and Judges of the High Court at Fort William in Bengal 10 ILR Cal 109.

[6] Indian Penal Code, 1860, No.45,Act of parliament,1860, sec. 53, Punishment- The punishment to which offenders are liable under the provisions of this code are-

First- Death;

Secondly- Imprisonment for life;

Fourthly – Imprisonment, which is of two descriptions, namely:-

1)       Rigorous, that is, with hard labour;

2)       Simple;

Fifthly- Forfeiture of property;

Sixthly- Fine.

[7] G.W.Paton, A TEXTBOOK OF JURISPRUDENCE, 4th ed.,1972, p.201.

[8] Joseph shines vs. union of India, 2018

[9]Lerman  andVorndran, on the Status of Knowledge for Using Punishment: Implications for Treating Behavior Disorders, vol. 35, 2002, Journal of Applied Behavior Analysis, pp. 431-464.

 

[10]Azrin N.H, Effects of punishment intensity during variable-interval reinforcement, vol. no. 3 (part 2), Journal of Experimental Analysis of Behavior, pp. 123-142.

[11] Report on crime in India 2018 , National Crime Records Bureau Ministry of Home Affairs, http://ncrb.gov.in/StatPublications/CII/CII2018/cii2018.html, visited on 07-02-2020.

[12] Nadella Venkatakrishna Rao vs. State of A.P, AIR 1978  SC 480.

[13]ShivajiSahebraoBobade vs. State of Maharashtra AIR 1973 SC 2622.

[14]Bachan Sing Vs. State of Punjab, 1980.

[15]Anupama Sharma, Fines as a punishment in Indian Penal Code: A jurisprudential failure or commodification of an offence? , vol.  32(3), journal of contemporary criminal justice, 2016

[16]  Australian Fines Act, 1996 No 99, sec. 4, https://www.legislation.nsw.gov.au/#/view/act/1996/99/part1/sec4, visited on 7-02-2020.

[17] Sec. 63, Indian Penal Code, 1860.