PRINCIPLES OF

CRIMINAL LAW

Dr. Sanjay Bang

Concept of Crime
• Man by nature is a social but at the same time selfish and fighting by
nature. Hence it is difficult to imagine a Crimeless society. Truly
speaking there is no society without crime from time immemorial.
• The Law of Crimes took birth along with our civilization. As soon as
people grouped themselves into an organized society, the need for
criminal law was immediately felt.
• The law reflects public opinion and it is particularly true about the
criminal law.
• E.g:- Suicide was not crime in India and attempt to suicide was crime
till recently in India but both are crime even today in England.
Continued
• Although most people believe in “ live and let live” policy, yet there are few
who for some reason or for other deviate from their normal pattern and
associated themselves with anti social elements.
• This obviously imposes liability on the State to maintain normalcy in the
society. That’s why Salmond has defined law as a, “rule of action regulating
the conduct of individual in the society”.
• Thus, crime spheres no continent, country, state , city or even street. Crime
is a concept which is in existence since creation of mankind.
• There are few points which we have to address to proceed further
• 1) Whether crime is universal concept around the whole world?
• 2) Is it a static concept?
Continued
• 3) A thing which is offence in India can we say the
same thing will be offence in the USA?
• 4) Whether the element of Crime is universal allover
the country?
• 5) Once crime is always crime or once crime is always
crime?
Points to be covered today
• I) The inclusion of information and technology in crime and
investigation and the difference taken place.
• II) The meaning of crime.
• III) Definitions of crime.
• IV) Difference between Civil wrongs and Crime
Continued
• The concept of crime is not stable one, it changes from time to time
and from place to place.
• In England till 13th century only those acts which were against State or
religion were considered as crimes.
• That’s why sedition, wagering war against State or rape were
considered as crime but surprisingly murder was only tort.
• They failed to distinguish between Tort and crime.
• In the language of Fedric Pollock, “English society was confused
between Tort and Crime as family bond was stronger than community
bond”.
Continued
• Undoubtly, as the civilization started to grow the concept of crime has
also been changed.
• Now in todays hi-tech world and use of computer network has given
rise to cyber crimes and other computer related unlawful activates.
• Because of these drastic changes the concept of crime has also been
changed drastically.
• E.g of theft in section 379 of the Indian Penal Code-1860
• I) Moveable property II) Must move from that place III) Without the
consent of the owner IV) Unlawful gain
Challenges of Cyber crime
• I) Easy to learn how to commit the crime.
• II) They hardly require any resources.
• III) They can be committed in a jurisdiction without being physically
present in it.
• IV) Its bit difficult to prove them illegal.
• But at the same time we cant ignore the other side of the coin as
investigating machineries are simplying finding out the criminals by
tracking the location of mobile, the use of Forensic science as a tool
of investigation is a boon for those agencies.
Definition and meaning of crime
• The object of criminal law is mainly to protect the society and the
interest associated with life, liberty and the property.
• Section 302 is Murder against life, 340 is Wrongful Restraint against
liberty and 379 is Theft against property are the example of that.
• The most difficult task is to give a complete definition of crime which
is universally accepted.
• As all societies have certain norms, beliefs, customs and traditions
which are accepted by its members for their well being and all round
development.
Ingredients of crime
• Many writers have attempted this definition of crime by inclusion
with the following Three elements
• I) Anti social II) Immoral III) Sinful behaviour.
• 1) Kenny:- Crimes are wrongs whose sanction is punitive and is in no
way remissible by any private person, but remissible by the Crown
alone, if it is remissible at all”.
• 2) Cross and Jones define crime as a legal wrong the remedy for
which is punishment of the offender at the instance of the state.
Continued
• 3) Paranjpayee has defined crime as, “ crime is a form of conduct
which is declared to be socially harmful in a state and as such
forbidden by law under some pain or punishment”.
• 4) James Stephen, “ crime is an act which is both forbidden by law
and revolting to the moral sentiments”.
• Thus in general we can say crime includes
• I) Act or omission prohibited by law II) Injurious to public at large III) It
should be a social offence as per the beliefs of the society.
Food for brain
• On 4th June 2011 at midnight by 2, at Ramleela ground, New Delhi
Ramdevbaba and his followers were attacked by Delhi police because
of which stamped took place and the mob was totally disturbed. Delhi
police was criticized by all corner, specially by media. The police took
the defense as follows
• I) The permission was sought for Yoga classes and the hunger strike
was started II) Section 144 of the CrPc was declared near Ramleela
ground, whereas 20000 followers were gathered III) Ramdevababa
declared that the followers are his army and they are ready to fight
against UPA government. How would you look into that matter as far
as definition of crime is concerned.
The definition of crime in Indian Penal Code-
1860
• We don’t find any definition of crime in the Indian Penal
Code-1860.
• Whereas in section 40 of the Code, there is definition of the
term “offence”.
• Whether these two terms are same? Is there any difference
between the two?
Difference between Civil wrong and Crime
• 1) The basic object in case of civil wrong is to enforce of the rights of
the person whose right is violated where as in crime to punish the
wrong doer.
• 2) In case of civil wrong it is private wrong where as in crime it is
public wrong.
• 3) In civil wrong the person whose right is infringed has to initiate the
action where as in crime the State will initiate the action on its own.
• 4) Civil wrongs are compoundable at the instance of the parties
where as crime is not compoundable at the instances of the parties
with certain exception given in section 320 of the CrPc.
Continued
• 5) The outcome in civil wrong is remedial in nature whereas in crime
it is punitive.
• 6) Then purpose of civil wrong is to compensate the individual or to
recognize his right in criminal law to protect the society by preventing
and deterring the offender from committing further offences.
• 7) In civil wrong the burden of the proof is on individual whereas in
criminal law it is on state.
• 8) Most of the civil wrongs are based upon moral turpitude and that
is not the case I criminal law with certain exceptions.
Crime and Society
• Crime is basically defined through the eyes of society. An act is not a crime
until society doomed it to be and if society considers some act not opposed
to their group sentiments than that act is not a crime at all.
• Crime is an act which offends and threatens the society, and thus such acts
need to be punished. The basic reasons behind the making of law are to
penalize those who commit a crime and these laws are the result of
society’s need to stop happening of such acts.
• Practising of untouchability had been following continuously in India, same
we can talk about “Sati system” which was considered as offence from
societal point of view.
• Thus, society play an important part to give shape to the particular act as
an offence if it goes against the sentimental of society.
Continued
• These are values which are likely to be changed with the passage of time.
• For Eg in Bangalore in 1977 around 10000 third gender people gathered
outside State assembly and they were demanding that sec 377 of the
Indian Penal Code-1860 should be abolished.
• As nature has played against them and they are not at par the human
being.
• But neither the State of Karnataka nor Govt of India even thought to
amend section 377 of the Indian Penal Code-1860.
• And around 40 years later in 2018 the Supreme Court of the country
declared half of the part of sec 377 as unconstitutional.
• All the wings of the state reflects the societal value.
Sources of Criminal Law
• 1) The Constitution of India.
• 2) The English Statutes.
• 3) The Statutes passed by the Government of India and the
concerned state Government.
• 4) The judicial decisions.
• 5) The societal approach.
• 6) The development going around the countries in the world.
Place of Criminal Law in Criminal Science

• Science is systematic study of any particular thing.

• The basic aim of Criminal Science is to study the causes of crime, the study
to prevent it and finally the mechanism to deal with the criminals.
• So Criminal science deals with Criminology, that is systematic study of
criminal and their behaviour, causes and so on, Penology which talks not
only about the punishment but the reformative measures and Criminal law
which is the mechanism to implement the policies of Criminology and
Penology.
• The recent development in this field is “Victimology” which talks about the
welfare of victims and related schemes.
• Criminal Law talks about offences like Indian penal Code-1860 which is
considered as substantive law and the criminal Procedure Code-1973 which
talks about the procedural part.
Continue
• Hence the Criminal Law forms an important part of the Criminal Science. It
sets the policies and the law in motion.
• If the criminal law is effective in terms of contents and its implementation,
then only the Criminal law will achieve its object.
• An effective mechanism is very important in criminal law for the research
in criminal science as it provides practical input to the theoretical aspects.
• E.g:- Domestic violence cases increased during the time of lock down, after
every economic depression probability of increasing crime against property
is more.
• Thus, Criminal Law acquires an important part in Criminal science.
Theories of Crime
• Darwin developed a Principal ,”struggle for existence”. He came to that
conclusion because in the beginning of human civilization, human beings
fought with each other for food, sex and existence.
• There was less difference between human being and the animals.
• It developed “private vengeance”.
• But with the passage of time a serious injury to the individual was treated
as injury to the society.
• For this purpose two wings of the state were established namely police and
the courts.
• This system was formulated centuries ago and still continues as an integral
part of the criminal justice system.
Purpose of Criminal Justice system
• Though punishment is in existence since long but its purpose, nature and
execution method has been changed from time to time.
• The following purposes the State wants to achieve by the mechanism of
punishment
• I) Peace II) Prosperity III) Deterrence IV) Reformation V) Fear of punishment
• All the theories of punishment have been developed with the passage of
time keeping into the mind all above factors, which is very much common
all over the world.
• Theories means the philosophy. Theories have been developed in one
particular era keeping the existence scenario into the mind.
• Hence comparison of the theories is non scientific and non logical as well.
Theories of Punishment
• 1) Deterrent theory, name itself indicates the object of the theory to deter
the prospective criminal from committing the crime.
• This is the oldest theory in the era of philosophy of punishment.
• If the quantum of punishment is less then the prospective criminals will not
refrain themselves away from committing the crimes.
• Jethro Brown has developed theory “ Pleasure and pain”.
• If we want to put the deterrent effect then the pain should be more than
pleasure.
• This theory is based upon that principal though Jethro Brown talked about
this much latter and in filtered way than the existence of this theory.
Continued
• 2) Retributive Theory- This theory is the development after deterrent
theory.
• This theory is more deterrent than the deterrent theory itself.
• This theory talks about “Eye for eye” or “tooth for tooth”.
• Capital punishment which is given in most of the countries is based upon
this example.
• Here I am considering only offence of murder and not the other offences as
in such situation it would not strictly fall under the category of Retributive
theory but under the Deterrent theory.
• This theory was developed by the legal thinkers considering its effect to
prevent such type of crimes from the society.
• Whether this theory has solved out the problems?
Continued
• 3) Preventive theory:- This theory is based upon the maxim “prevention is
better than cure”.
• Every state will always prefer to prevent the crime rather than correcting it
later which will be burden upon the state .
• Indian criminal system also prefers this theory as it will not only reduce the
burden from the state but will give a second life to the accused to reform.
• In most of the cases the crimes are committed in sudden and grave
provocations.
• The Indian police system is performing this task at tri level.
• I) To prevent II) To correct III) To prevent the recedivism
Continued
• 4) Expiation theory:- This is much recent theory in comparison with past
three theories.
• Expiation means the act of expiating or compensation. According to this
theory compensation is being awarded to the victim from the wrong doer.
• Though in crime the victim is individual but the act is considered wrong
against the state.
• Now every country including India is focusing on this aspect.
• Accordingly we have amended the Criminal Procedure Code-1973 in 2010
and inserted section 357 (A) and 357 (B) which talk about Victim
compensation and accordingly the compensation is being awarded from
that fund to the victims.
Food for Brain
• “A” who is the alone bread earner of the family murdered “B” again the
sole bread earner of the family. “A” was found guilty of the offence and
sent for life imprisonment. Who can apply for the compensation from the
Victim fund which is established under section 357 (A) of the Criminal
Procedure Code-1973?.
• This theory is considered by the Indian judiciary in number of cases as well.
• State vs Sayyududdin 1996 AP
• In the case , there was fight between the accused and his brother one side
and the victim on the other side. Sudden and grave fight turned into death
of the victim.
• The AP High Court awarded 3 years rigorous imprisonment to the accused
and 60000 rs fine to the family members as the victim was the only bread
earner of the family.
Continued
• 5) Reformative theory:- This is most recent theory of all the theories of
punishment.
• This theory treats crime as disease and stressed on “no one is born
criminal, criminal is the product of social and economical circumstances”.
• This theory strongly believes that adamant and the habitual offender can
also be changed into a law abiding citizen by reformation.
• The modern penologists believe that punishment is no longer regarded as
Retributive or Deterrent but it is regarded as Reformative or Rehabilitative.
• Most important task of reformation is put on the Prison Authorities to
trained the prisoners in such a way to adjust themselves to free life in
society after their release from the institution.
Continued
• The reformative view of Penology suggests that punishment is only
justiciable if it looks to the future and not the past.
• They are of the opinion that the Prisonisation should not be for the
purpose of isolation and eliminating the criminal from the society for which
it has become threat but to bring about a change in their mental outlook
through effective measures of reformation during the term of their
sentences.
• Dr P K Sen a very well known authority on Indian Penology asserted that
the concept of punishment has now radically changed in such a way that it
is no longer regarded as a reaction of the aggrieved party against the
wrong doer but has become an instrument of social defense for the
protection of society against crime.
• Whether this theory is useful in its application and outcome?
Philosophy of Criminology
• Criminology in simple words can be said as the study of the crime
caution and analysis and prevention of crime.
• It stresses on the factors which are contributing in crime.
• Thus, Criminology focuses on the study of
• 1) Criminal Anthropology
• 2) Criminal Sociology
• 3) Criminal Psychology
• 4) Criminal Psycho-neuro pathology
• 5) Penology
Theories of Crime
• This is also known as the schools of Criminology.
• These theories have been developed in different era considering the
changing nature of the crime and the societal reaction towards it.
• It has been generally accepted that a systematic study of Criminology
was first taken up by the Italian scholar Cesare Beccaria who is
considered as the founder of modern Criminology.
• Each school of Criminology explains crime in its own manner and
suggests punishment and preventive measures to suit its ideology.
• It must be stated that each of the schools represent the social
attitude of people towards crime and criminal in a given time.
Pre-Classical School
• The Seventeenth and Eighteenth century was consider as dominance of
religion on the state.
• It was generally believed that man is by nature simple and his actions are
controlled by some superpower.
• These external spirit called “demon” or “devil”.
• It was believed that human being was committing crime not because of his
free will but his actions are controlled by some super power.
• The principle of divine intervention especially through ordeals we found in
ancient India as well.
• The Oath has played a very important role in ancient judicial system to
determine the guilt of the person, which is still in existence.
Continued
• So during that time not only the society but the state was also
thinking crime from “Demon” and “Devil” point of view.
• The punishment was also considered as punishment to demon and
not to human being, and that’s why it was harass as well.
• Punishment was also very much inhuman like cutting the limbs of the
person, troughing him before wild animal, to burn alive and keeping
him without food and water ultimate result would be death.
• This theory perhaps dominated the will of state for more time than
any other theory. It was replaced much recently and the next theories
have also been changed rapidly.
The Classical School
• During the middle of 18th Century, Beccaria, the pioneer of modern
Criminology expounded the theory of crime by rejecting the idea of evil
spirit.
• He put greater emphasis on mental phenomenon of the individual and
considered crime as an element of “free will” of the individual.
• He sought to humanize the criminal law by insisting on “natural rights” on
human beings.
• Beccaria's view on Crime and Punishment were accepted initially in most of
the European countries and they started to redraft the criminal code and to
abolish the rigorous punishment in most number of cases and some
countries even went up to the extent to abolish capital punishment from
their Codes.
Continued
• The supporters of Classical school are of the opinion that punishment
should be awarded to the offender keeping following two things into the
mind
• I) Pleasure derived by the offender 2) The pain suffered by the victim.
• Unfortunately this is one of the pitfall of Classical school as well.
• As they are fully focusing on the Act only and not the state of mind which
an integral part of crime analysis.
• The point which is considered in Classical School is Free will, though upto
the extent it is correct as well, specially when we compare with Pre-
classical school of Criminology, but what about the reason, it is not given
any weightage which is not only, incorrect but non logical as well.
• Right of Private Defence.
Continued
• The supporter of this theory are against the arbitrary power of the judges. They
are of the opinion that judges should not go beyond the authority granted to him
under the Penal Law.
• Is it right?
• They are against arbitrary ness but not against discretion.
• But the fact which is accepted by this theory is as follows
• I) There is no alternative to punishment. An offender should be inflicted with
pain, though they are the initiator of the Human Rights.
• II) They also believe that, “Prevention is better than cure”. That’s why they
suggested to make certain changes to Penal Code of France, Germany and Italy
where you will find the impact of this theory more than any other part of the
world even today as well.
Continued
• The major setback of this theory is that it fails to distinguish between the
First offender and the second and the habitual offenders, by prescribing
the same punishment to all of them.
• Today, all over the world this has been taken up in the mind and the
punishment varies according to its repetitions.
• But the major achievement of this theory is that it advocates to form a
good “Criminal Policy” which took out the age old belief of “Demon and
Devil” theory.
• This theory started the wave in the human rights concept and change the
form of punishment from torture to rational. After this theory only, the
Capital Punishment was considered from a fresh look and now is a burning
topic of discussion “whether abolition or retention”.
Neo-Classical School
• Pre Classical and Classical Schools did not survive after mid of the 18th century
because of the limitations we discussed as above.
• The first advantage of this theory was, this theory started to distinguish between
The first offender, and the habitual criminal which was the major drawback of the
Classical school.
• This School identifies the mental condition of the offender as well, apart from his
free will condition by putting them according to their mental capacity.
• This School identifies minors, idiots, insane or incompetent had to be treated
leniently irrespective of the similarity of the Act, as those persons are incapable
to distinguish between right and wrong.
• Amruta vs State of Maharashta 1996 CrLJ 1416 (Bom)
• What's your opinion about punishment for woman, should be at par with men or
little bit leniently?
Continued
• Advantages of this School of thought are as follows
• I) This is the first school approached the thoughts of Criminology in
scientific way by considering the vital differences like mental, physical or
social.
• According to Prof Gillin, “this school of thought has represented their
reaction against the severity of same punishment for same offence of the
Classical school of Criminology”.
• II) This theory supported the individualization of offender and treatment
methods which required the punishment to suit the psychopathic
circumstances of the accused. The “Act” or “Crime” are still the pinpoints
of determining the act of the accused. But still some importance is given to
mental condition as well.
Continued
• III) This theory says that man is acting on reason and intelligence is self
determining person and is responsible for his own conduct. Thus, this
theory discarded the views of Pre-classical theory of “Free will”.
• IV) Though this theory stresses on lenient treatment to those persons who
are not in true position of mental capacity but advocates that
“Responsible” or “Non responsible” criminals must be kept segregated
from the society. Sanity and insanity are two major points upon which this
revolves but at the same time, didn’t promotes the idea of waiving of the
punishment to those are not in position to distinguish the criminal acts.
• V) Because of this school only, the considerable attention has been given to
crime and the environment surroundings. This theory paved the way for
some reformative measures like Probation, parole, open prison etc.
Continued
• The shortcoming of this theory , is it believes that responsible or
irresponsible criminal both are dangerous to society and must be
eliminated from the society. If this is the case, then the reformative
measures are useless from state point of view.
• It means if we follow tis theory strictly Parole or Furlough, Probation
can not be given to any one else. Some times it may go negatively and
the person because of the environment where he was kept after
eliminating from the society will be forced to commit the crime.
• Undoubtly, this theory is also not free from the short comings but this
has contributed a lot by overcoming the loopholes from previous two
theories.
Socialist School
• The school is also known as Marxist school of Criminology. This schools
revolves the philosophy of Marx and his colleague Friedrich Engels, even
William Bonger also contributed to the development of this school.
• Marx believed that social phenomenon including crime is governed by the
universal principle , namely the economic principle.
• According to him the Capitalist society by giving false picture, made the law
to suit their selfish purpose. This school believes that crime is by product of
economic system and that is the result of poverty.
• According to Marx, the Capitalist took the undue advantage of the hard
work of the labour which leads to criminality.
• In Capitalist society, those who are in power control the definition of crime
Continued
• The crimes of rich Capitalist are either not punished or punished leniently.
• E.g Corporate crimes, Tax frauds etc.
• According to Bonger Laws are made by the people in power only for their
own protection, even though criminal laws may appear to protect
members of both classes of society.
• According to him if the wealth is distributed unequally, there will be
criminality.
• Hence he suggested that reduce the gap between “haves” and “not haves”
which will surely reduce the crime.
• Provide your analysis about this theory…….
Drawbacks of this theory
• 1) The followers of this theory has exaggerated the economic influence on
criminality, though that is not the only cause of crime. They have over
looked all the remaining causes which are equally important.
• Traffic Laws, due to aggression, lust revenge are not based upon economic
factors
• 2) Marx has mentioned that law is the instrument of domination and
exploitation which is not totally correct, it is for the benefit of people at
large.
• 3) According to this theory alcoholism and prostitution are outcome of
capitalism. But capitalism only can not be blamed for that.
• But this theory has contributed by putting the stress that economical
inequalities are the root causes of crime.
Cartographic School of Criminology
• This School is also known as Geographical School or Ecological School of
criminology.
• This is a development from 19th century, specially developed between 1892
to 1942.
• According to this theory crime causation sees crime as the expression of
the environmental influence. This School considers that the geographical
area determine the culture of the community concerned. Unfavorable
social condition in that area may be responsible for criminality. Social
condition may be linked with the ecology or the geographical surroundings
of the people.
• According to C. A.Mill who was the strong supporter of this School
barometric pressure and with direction of the wind.
Continued
• The other supporters of this theory are of the view that Crime against
Property will take place during winter and crime against body takes place in
summer. Up to the extent this is correct. As well.
• Some of the supporters are of the view that crimes are frequent in
mountainous areas than in plain areas.
• Montesquie after studying crime in different hemispheres come to the
conclusion that crime rate is very high near equator.
• The climate on equator is intensively hot and humid and this renders
people irritable. This is a vital factor of occurring of crime, particular
physical violence and offence.
• Your analysis about this theory……………………….
Criticism of Cartographic School
• According to Sutherland,that crime rates and geographical conditions has
no concern. In the same geographical area, one may comite crime and the
other one may not.

• Sociological or Socialist Psychological School

• The origin of Sociological school of crime can be traced back to late 19th
Century.
• According to this theory that apart from personality of criminal and the
effect of biological , mental and psychological factors it is necessary to
consider social and environmental factors as well.
• Rasco Pound, Sutherland, Walter Reckless are the main follower of this
theory.
Continued
• According to this school, the criminals are product of the society.
• Sutherland offered two major explanations for criminal behaviour
• 1) The process operating at the time of occurrence of crime to which he
called the dynamic explanation of crime.
• 2) The process operating at the earlier life history of the criminal which he
learned as the historical or generic explanation of crime.
• These explanations later on accepted by psychologists, biologist.
• It suggested that cause of crime lies in the immediate favourable situation,
which the criminal finds conducive for the criminal act.
• Misappropriation of public fund can be done only by those who normally
handle large sum.
Continued
• Offence of theft normally committed in lonely houses.
• Edwin Sutherland considering all these factors adopted Differential
Association Theory. According to him behaviour whether criminal or non
criminal learnt in association and not inherited. He observed the following
things
• 1) Criminal behaviour is learnt and not inherited.
• 2) Criminal behaviour is learnt through interaction of the criminal with
other persons in the process of communications.
• 3) The greatest influence on the individual is that of his inmate personal
group which moulids his conduct in many ways.
• 4) Criminal behaviour is an expression of general needs and values.
Continued
• When we analysis this theory we find, it operates on more than one level.
• First is Individual, second is group and the third is cultural conflict. Cultural
conflict is in existence since long, but specifically realized after the First and
Second World War.
• The greatest advantage of this theory is it attempts a logical, systematic
formulation of the chain of interrelations that makes crime.
• This theory has contributed more than any other theory as this is most
recent and got the opportunity to study all the previous theories.
• But this theory has given most importance to Social factors and given
secondary importance to other factors including economical , emotional
factors which are equally important like the sociological factor.
Positive School of Criminology
• In the late nineteenth century, some of the principles on which the classical
school was based began to be challenged by the emergent positivist school
in criminology, led primarily by three Italian thinkers: Cesare Lombroso,
Enrico Ferri, and Raffaele Garofalo.
• The positivist school introduced the problem of causality into
criminological thinking. Examining the potential causes of crime has been
tackled from a range of differing perspectives, including:
• Biological: Are criminals born or made?
• Psychological: What are the individual factors that lead to criminal
behaviour?
• Sociological: Why do some neighborhoods have higher crime rates than
others?
Continued
• This School rejects the idea that it is nature which cause the criminal to
commit the crime but it is his individual nature which causes him to
commit the crime.
• As all the three pioneer members who discussed this school, were from
Italy, sometimes tis school is referred as “Italian School of Criminology”.
• The key characteristic of the positive school is its emphasis on applying the
methods of the natural sciences to the study of human behaviour. Within
criminology, positivist approaches have focused on searching for the causes
of criminal behaviour and have assumed that behaviour is predictable and
determined.
• Lombroso, the first to employ scientific methods in explaining criminal
behaviour and shifted the emphasis from crime to criminals.
Food for brain
• Mr. Rajesh a research scholar in Psychology, once carried an empirical
study on “use of mobile during study or in the class by the students”. He
picked a class consists of 40 students. After proper interview through
questionnaire and personal interview, he found that student did not use
the mobile during study or when they are in the class. All the 40 students in
fact never use the mobile in the above two situations as well. Rajesh came
to the conclusion
1) That students don’t use the mobile when they are in the class or at the
time of study.
2) No need to go for any separate policy on use of mobile at the time of
study or in the class for students.
Critically evaluate the above situation and answer.
Continued
• Lombroso was the physician and serving in Italian Army. He studied on 842
War criminals and then come to his conclusions.
• After an intensive study he came to conclusion that criminals are physically
inferior in the standard of growth and therefore developed the tendency
for inferior acts.
• He further generalized that criminals are less sensitive for pain and that’s
why they don’t feel the pain of the society.
• Through his biological and anthropological study on criminals he justified
Darwins theory “struggle for existence”.
• He classified the criminals into following three categories
• 1) Hereditary criminal 2) Insane criminals 3) Criminoids.
Continued
• In the first category, He said that criminals are born and considered them
beyond reformation. He said that because certain biological factors present
makes them to commit the crime.
• In the second category he said the criminals are committing the crime
because of certain mental disorder.
• In the third category he mentioned that criminals commit the crime to
overcome the physical shortcomings into them to meet the requirement
for survival.
• So, we can say, Lombroso emphasized on the individual personality of the
criminal. Though his theory attracted number of criticism but today, the
modern criminologist are having aim of individualization of treatment to
the criminals.
Criticism against Lombroso
• Ferri, his own disciple criticized Lombroso by saying that if non criminals
put into the favourable conditions they may commit the crime, in the same
sense if criminals put in healthy surroundings they may be reformed, that’s
why saying a particular class will be beyond reformation is incorrect. Here
instead of his (Lombroso) approach of individual study he focused on
group.
• Suterland mentioned that by shifting attention from crime as a social
phenomenon to an individual phenomenon, Lombroso delayed the
progress of criminology by 50 years which was there during his time.
Sutherland came to this conclusion, that Lombroso didn’t make any
considerable contribution in the field of criminology.
• But in penology, we are easily observing the influence of Lombroso today
by giving individual treatment.
Continued
• Lombroso did not study the group of non criminals, hence it is bit difficult
to accept that a particular physical characteristics were associated with the
criminal type.
• This shortcoming in his research was studied properly by an English Doctor
Dr Charles Goring studied around 3000 British convicts and compared them
with controls from normal population and concluded that there was
absolutely no evidence for the existence of “physical crime type”. Dr Goring
concluded that there is no significant difference between the criminal and
non criminal.
• Even Lombroso accepted in the last part of his life that there are certain
other factors like social or economical which we need to consider apart
from all he explained in his theory.
Continued
• His work in criminology is no where less, as it was empirical research and
he came to conclusion accordingly. In fact the sample selection was
incorrect for him.
• Whatever the sample he had selected was giving that result but
unfortunately it was not tested and there was no scientific support
available to his theory.
• The second in this series was Enric Ferri, who was student of Lombroso.
• He developed the “Law of Criminal saturation” theory and expressed that
crime is the synthetic product of
• 1) Physical or geographical condition
• 2) Anthropological
• 3) Psychological or Social.
Continued
• Ferri classified the criminals in following 5 category
• 1) Born criminal 2) Occasional criminal 3) Insane criminal 4) Habitual
criminal
• 5) Passionate criminal.
• Ferri, emphasized that a criminal should be treated as product of the
conditions which played his life. Therefore the basic purpose of the
crime prevention programme should be to remove conditions making
the crime.
• He suggested an intensive programme of crime prevention and
recommended a series of measures of treatment of the offenders.
Raffaele Garofolo
• Just like the other two Italian thinkers Garofolo, stressed on individual
treatment of the criminals by suggesting to study circumstances and the
living conditions of criminals.
• He firmly believed that criminal is the creature of his own environment.
• Garofolo worked as Judicial Officer, Professor of Law and administrator as
well, hence he got the opportunity to study the criminals at different
counters. Being judicial officer he was well acquainted with the then
existing criminal laws and procedures.
• He classified the criminals like murderer to whom he called endemic,
violent criminals lacking the sentimate of the society and lustful criminals.
Continued
• He had given importance to the personality of the criminals.
• He propounded that criminals are of different traits and that they can be
gradually transformed into normal human being. He discarded the idea of
Lombroso that there are some criminals who are beyond reformation.
• But as far as punishments are concerned he was very strict and was strong
supporter of death penalty, life imprisonment transportation or keeping
criminal in isolation these punishments he suggested.
• Though he belived that criminal can be reformed but he had not given any
method regarding the reformation of the criminals, which Ferri put into his
theory.
• Today all over the world reformation is considered as one of the important
procedure into penology.
Continued
• Every theory was propounded at different time and at different angle,
hence comparison is quite difficult.
• Non of the theory is complete in itself, but every theory has its utility and
had given a path for its successive theory.
• Eg:- Pre classical School had given the opportunity to Classical school by
showing the path through “Demon and devil” concept and in the Classical
School rejected the idea by proclaiming the “Free Will” theory.
• Modern Criminologist and penologists are giving due weightage to all the
theories, and its quite difficult to say that a particular theory is outdated
the reason is the aim and objective of the punishment has been gradually
changing from time to time.
Food for Brain
• In India, the Domestic Violence Act-2005 when enacted, it was with
the aim to reduce the domestic violence. But by that time, the action
according to this law was limited up to the males in the family and
not against the females. Instead of going into gender or constitutional
debate, this Act in which School of Criminology we put?
• Recently, the murderer of Jessica Lal was released on Parole after 21
years who is undergoing the life imprisonment sentence. The action
taken by the state is valid one? In which theory of punishment we can
put his example and why?
Criminalization
Dr Sanjay Bang
Introduction
• The overall aim of the criminal law is the prevention of certain kinds
of behaviour that society regards as either harmful or potentially
harmful.
• The criminal law is applied by society as a defense against harms that
injure the interests and values that are considered fundamental to its
proper functioning.
• Sec 279 of the Indian Penal Code talks about the punishment for Rash
driving.
Continued
• These interests and values cover a wide area.
• They include the bodily integrity of people, the security of property,
protection of the environment and moral values.
• E.g:- Till the Bhopal gas disaster case, the criminal liability was not
imposed on those persons who were controlling the unit from where
the massive environment pollution cases harm to the people and in
such case the concerned person would be punished with
imprisonment.
Continued
• The criminal law identifies certain wrongful behaviour that society
regards as deserving of punishment.
• People breaching the criminal law are labelled as criminals and are
penalised by the state.
• The ultimate aim of the criminal law is to regulate the society and
thereby achieves maximum happiness to the people. Unless the
society is regulated, the powerful one will always take the law into
their own hands and against the interest of the state.
Principle of Autonomy
• One of the fundamental concepts involved in the justification of
criminalization is the principle of individual autonomy, and as far as
criminalization is concerned, a key concept here is that of individual
rights.
• Ashworth, the legal philosopher in England points out that the
principle of individual autonomy has two elements: factual and
normative.
• The factual element of the autonomy principle perceives individuals
as having the capacity and sufficient free will to make meaningful
choices.
Continued
• Normative element in the Principle of autonomy is rendered as self-
law, self-government, self rule and self determination.
• Criminal law regards individuals as autonomous and rational agents
who have conceptions of what they are doing, generally considered
as not compelled in their respective areas.
• The most basic autonomy-right is the right to decide how one is to
live one’s life, in particular how to make the critical life-decision -what
course of study to take, what skills and virtues to cultivate, what
career to choose, to enter, whom or whether to marry, which church
if any to join, whether to have children, and so on.
Continued
• Thus, the autonomy is the freedom given to an individual in such a
way that it should not restrict his choice how to live his life.
• One person can think whatever best possible for him.
• In this way, in criminal law principle of autonomy is considered as
valid element to decide whether the act falls under the ambit of
criminality and if so, what are the parameters for deciding in such a
way.
• E.g:- Giving and taking of dowry has been an offence as per Dowry
Prohibition Act-1961.
Food for brain
• A farmer who was selling the vegetables and foods grown from his
farm in the open market was selling to all the people irrespective of
the thing whether they are from that area or not. But to few people
because they were from specific class he refused to sale them the
same vegetables and fruits. He was charging excess price, if he finds
that the vegetables and fruits are left in the end.
• I) Can he refuse to do so as he is the owner, it is his discretion.
• II) Can he charges excess price from those people?
Principle of Welfare

• Undoubtly an individual is free to make the choice of his own, but his right
of choice should not disturb somebody freedom, otherwise, the State
would not be in position to respect the individual autonomy in full sense.
• From the perspective of the welfare principle, the protection of collective
or aggregate interests is necessary to enhance the general well-being of
the community, and criminal law is one way of denouncing and punishing
any behaviour which might threaten these interests, even if it results in the
liberty of individuals .
• E.g Sec 279 of the Indian penal Code-1860 or Sec 494 of the Indian Penal
Code-1860 talks about Bigamy.
Continued
• Thus, it is the duty of the state to balance between the Principle of
Autonomy and the Principle of Welfare.
• When certain act of an individual has become dangerous for the
society, the state can curtail the autonomy at the cost of welfare.
• During the lock down period people were prohibited to go outside, as
their autonomy was curtailed at the cost of society by imposing the
provisions given under sec 144 to 147 of the Criminal Procedure
Code-1973
Examples
• Practicing untouchability in one form or other was strictly prohibited
in the Constitution but still it was continue in one or other form, then
finally The Prevention of Atrocities Act-1988 was passed to make such
practice criminal liable.
• Taking bribe by the Government servant is an offence under The
Prevention of Corruption Act-1988.
• In both the cases exact number is not taken into consideration but
interest of group, not necessarily in majority was taken into
consideration.
Food for brain
• Under Right to Information Act-2005 any Indian citizen can ask for
information. One can file as many application as he can. The
autonomy of the applicant and liability of the public servant are
considered here. But most of the public servant are claiming that the
Act is inclined towards the applicant and have ignored the autonomy
and welfare of the public servant as the applicant is not liable even
after he threatens the public servant and demands money, whereas if
the same case occurs in other side the public servant could have been
held liable for bribe under Prevention of Corruption act-1988. What
your opinion ?
Harm Principle and Public Wrong
• The harm principle states that the only actions that can be prevented are ones
that create harm.
• In other words, a person can do whatever he wants as long as his actions do
not harm others.
• If a person’s actions only affect himself, then society, which includes the
government, should not be able to stop a person from doing what he wants.
This even includes actions that a person may do that would harm the person
himself.
• Attempt to commit suicide was covered under sec 309 of the Indian Penal
Code-1860 till the section was declared unconstitutional by the Supreme
Court of the country.
Harm Principles and Authority
• The state will always try to avoid those acts which causes unnecessary
harm to the other person. Though reasonable harm is covered under
statutory provisions.
• E.g:- During the police custody police can use reasonable force for the
investigation.
• Harm Principles now a days have put certain questions which are
going against the encounters and have raised certain questions from
legal corner of the country, including the media from world.
J S Mill opinion on the Principle of Harm
• According to Mill, the interference by the State is allowed for
following
• I) If by harming themselves, someone harms other people by violating
their rights, then we can interfere with their actions on this ground.
• For E.g;-, if through being unable to control their spending, someone
becomes unable to pay their debts or unable to support their children,
then we can condemn and punish them.
Continued
• II) Second, a person’s specific duties can change self-regarding actions
into ones regulated by the Harm Principle.
• If a doctor or policeman got drunk while on duty, they may be punished,
because they have a duty to the public to be capable of doing their job
during that time.
• E.g- The officer who comes for training a day before comes in drunken
position.
Continued
• Mill asserts that society should maximize individual liberty. His harm principle posits 'The only
purpose for which power can be rightfully exercised over any member of a civilized community,
against his will, is to prevent harm to others.
• His own good, either physical or moral, is not a sufficient warrant.' Mill was strongly individualist:
he believed that the consequence of actions should be the guiding moral principle to society.
• His principle of utility is a base on which moral foundation concern the greatest happiness for the
greatest number.
• Actions are morally judged through their consequences.
Continued
• In Indian penal Code-1860, under section 302 punishment for murder
is provided which will be either death penalty or life imprisonment.
• Again in the Indian penal Code-1860, under section 299 the
punishment for Culpable homicide not amounting to murder is given
which is maximum up to 10 years.
• In section 96 of the Indian Penal Code-1860 right to defend own body
upto extend to kill someone else is covered, though it is controlled by
section 99 of the Indian Penal Code-1860 which says no excess force
to be used.
Food for brain
• The villagers approached to Forest Officer and complained that a
leopard has taken away a child from the village. The forest officer
went to the concerned place which was shown by the villagers. He
heard the sound of boy along with some movement in the bush.
Realizing that it might put the child's life into danger, the Forest
officer fired in the bush and surprisingly the bullet hit to a man in the
bush who died on the spot and there was no leopard at the spot. The
villagers took the child into their custody and latter on charged the
forest officer with murder of the person from was from the same
village. What's your opinion?
Right not to be punished
• It is the general principle of Criminal law not to punish a person till
the case is proved beyond reasonable doubt.
• It is followed in the theory, that let the Hundred offender set aside,
but don’t punish one innocent person.
• A person will not be punished twice for the same offence and it has
been considered as one of the Fundamental Right under Art. 20(2) of
the Indian Constitution.
Continued
• A person will not be entitled for that punishment which was not set
on the day of offence and it is also covered under the Indian
Constitution , Fundamental Right Art 20(1) which is considered as Ex
post facto laws and it will be considered from following three ways
• I) A law which declared some act or omission as an offence for the
first time after the completion of that act or omission.
• E.g Dowry Prohibition Act-1961 came into force on 20th May 1961,
hence a person will be punished for accepting dowry after 20th May
1961 and not before that.
Continued
• II) A law which enhances the punishment or penalty for an offence
subsequent to the commission of that offence.
• E.g- Death penalty for the offence of rape was introduced in India by
Criminal Law Amendment -2013, hence it was very clear, that the
criminals in Nirbhaya case could never have been hanged for the
offence of rape and because of death of Nirbhaya sec 302 of the
Indian Penal Code-1860 came into scene and they were hanged for
offence of murder and not for rape.
Continued
• III) A law which prescribes a new and different procedure for the
prosecution of an offence subsequent to the commission of that
offence.
• Procedural part is very important as even before the trail begun, all
the documents are being sent to the accused so that he can find a
proper defense for himself.
• It means he can not be punished without giving him the opportunity
to defend himself by hearing his side.
Punishment must be judicious
• The object of the punishment must be judicious and not to take the
personal revenge through judicial ways.
• The object of the punishment is justice, deterrence and reformation.
• Hence before the judgement of the case a person is entitled for Bail
and if he is punished with imprisonment then certain procedural part
like Probation, Parole or Furlough are applicable as per the case may
be.
Principle of respect for human rights
• The concept of human rights is not a new one, it is in existence since
long, but came into picture during the Second World War in 1942.
• At the end of the Second World War, it was realized that unless we
give due respect to the human rights of the individual and protect
them, we could not stop the Third World War.
• If the Third World War is being fought, it will destroy the whole
mankind and all leaving creatures. The science and technology is not
properly utilized, it is more curse than boon.
Continued
• After the end of the Second World War, in December 1945, the
drafting began for the framing of Universal Declaration of Human
Rights, which was finalized and implemented from 10th December
1948.
• Being an international instrument it is not binding on the countries to
accept the same at the cost of their national interest.
• For E.g in Art 51 (D) of the Indian Constitution, it is given that, the
state shall promote international peace and security by the
maintenance of justice and respect for treaty obligations unless it is
not in contravention with local laws.
International Human rights instruments
• So, finally in 1948 The Universal declaration of Human Rights given to
the world.
• But two optional protocols in 1966 in the form of International
Covenant on Civil and Political Rights was adopted.
• In 1966 only, International Covenant on Economic, Social and Cultural
Rights was adopted.
• Since that time the human rights have spread in the whole world
rapidly.
Continued
• Different countries have tried to implement the Statutory provisions
in their local laws for the due respect to the Universal declaration of
Human Rights.
• From Indian point of view, in the Constitution of India, we have tried
to give the human rights in the form of Fundamental Rights. Not all
human rights are fundamental but most of them are fundamental in
nature.
• In 1993, The National Human Rights act was passed and the National
Human Rights Commission was established to promote and protect
the Human Rights.
Continued
• Unless the procedure is completely followed, we can not give death
penalty to anyone else.
• Even if we arrest an alien enemy, still we can not punish him, till we
follow complete procedural part.
• E.g:- Kasab was given opportunity almost in all the procedural aspect,
before we finally hanged him.
• Not only the procedural part, we need to get connect with him in his
own language.
Continued
• In sexual assault cases, after 2000 some positive changes have taken
place. In State of Karnataka vs Manjana 2000 SC Cri LJ (1031)
3471/2000 (6) SCC 188, the doctor was supposed to examine the rape
victim only after the intimation from doctor. But in the landmark case,
the Supreme Court reversed the decision and now doctor has to
examine the rape victima nd then inform the police.
• Even the amendments took place in the procedural laws like the
Criminal Procedure Code-1973 to deal with rape victims.
Continued
• Many victims of rape do not want to register a police complaint due to the
cumbersome procedures that it involves, and the unsupportive atmosphere at
police stations. Further, they must narrate their ordeal to male police officers.
Even if a woman musters up the courage to initiate criminal proceedings, there
are inordinate delays in the trial of the case, with needless adjournments. She is
always psychologically harassed in open courts, undergoes long trials and is
forced to repeatedly describe her traumatic experiences in front of people who
view her testimony with suspicion. It has also been found that in most cases the
accused gets acquitted for lack of evidence. The courts have also failed to provide
immediate and long term relief to the victim, let alone punishment to the
accused. All these issues were looked at when the CrPC was amended in 2008.
These amendments came into effect in 2009.
• Now the police officer has to go and record the statements of the rape victim at
her place or any other place of her choice.
Nuclear weapons and human rights era
• After 6th and 9th August 1945, the world is always in the threat of
atom bombs. Now a days (2018) 36000 nuclear bombs are there in
the whole world.
• Russia-22500, USA-12070, France-500, China-450, England-380, India-
65, Pakistan-25 and North Korea-23, nuclear bombs of Russia and
USA are capable to reach 11000kms and Pakistan 1500kms.
• It means in 1945 only one country was having the nuclear bomb and
we saw the consequences, now 36000 nuclear bombs, just
imagine…………….
Continued
• So we have to respect the human rights more than the past and
criminals or any one else, deserves all the procedural part which has
adopted human rights have to be followed perfectly.
• Afterall the core value of punishment in Penology is justice.
• We cant give proper justice unless we consider the human rights not
only of the victims but of the offenders as well.
• Almost all the countries are trying to implement this aspect in their
substantive and procedural laws.
Criminalization as a last resort
• The aim of any state is obviously welfare of the people and peace in
the society.
• But because of conflict in interest at every step this aspect is being
challenged by the people.
• In the context of criminalization of conduct, it requires the national
legislator to take the path of criminalization only as a last resort, and
to consider alternatives to criminal law measures. Today, the
criminalization of conduct is no longer automatically the outcome of
national law-making, but is increasingly imposed by the international.
Continued
• The criminals are burden to the state in one way or other. It not only
impacts on the state money but put extra responsibility on the state
for the reformation of the individual.
• In reformation, the mix experience the state has received. If it is
negative on the individual and the task which the state is performing
if carried negatively, to the society, the important aspect of
deterrence will be gone from the prospective criminals.
Continued
• Even if the person is reformed , the societal approach is very
important to decide. If it is negative , it will lead to some serious
problems in future.
• Thus, if the civil remedy is available the state will try to give that first
and then only rely on the criminal remedy.
• The Law Commission Report 277 talks about mindless application of
criminal law which has caused more problems than the solution.
Continued
• IT’S surprising, if not alarming, that we don’t know the exact number
of laws that criminalize actions and provide for punishment in India.
Rough estimates range from 12,000 to 1.5 lakh.
• But, for sure, we have more laws than we require. Many laws mean
many crimes; it also means ‘overcriminalization’.
• The R Ramanujan Committee (2014) observed the existence of 2,781
laws in the central statute book. This Committee and the Law
Commission have been recommending the repealing of many laws
which have become redundant.
Continued
• The traditional starting point of criminalization is the "harm
principle". John Stuart Mill stated "the only purpose for which power
can be rightly exercised over the member of a civilized community
against his will is to prevent harm to others".
• This was approved in India by the Supreme Court in its 'adultery
judgment', in September, 2018.
• Slowly but steadily , Indian thinking is also going in the direction of
decriminalization.
Continued
• In June 2019, a discussion continued for a long regarding
decriminalization of “Defamation” contains in sec 499 and 500 of the
Indian penal Code-1860.
• A group raised the voice that, these two sections are unconstitutional
and curtails the fundamental right granted under Article 19(1)(a)
which authorize freedom of speech and expression and still regarding
the defamation the colonial mind set up is going on.
Balance between criminalization and
decriminalization
• Its difficult to imagine a society without a crime because of conflicting
interest in the society.
• Having excess law doesn’t mean we can expect crime free society but
at the same time, we should have the penal provisions to protect the
society and to deter the prospective criminals.
• Hence it is the responsibility of the state to review the existing laws
after a parodic intervals and study its utility.
Principle of not criminalizing where this
would be counter productive
• The State has to consider criminalization a last resort and in
continuation to that the philosophy is not to criminalize where this
would lead to be counter productive.
• Before criminalizing any act, the state has to think on positive as well
as negative aspect and its impact on the individual in general and
society in particular.
• That’s why wherever it is possible the state will think for that option
where it will be more productive than simply imposing the
punishments on the individual.
Continue
• Punishment should not be based upon revenge but for the
reformation and deterrence effect and considering the counter
productive method is in reformation model and to reduce the burden
from the state as well.
• The best example from Indian scenario is The Probation of Offenders
Act-1958, where after fulfilling certain criteria the offender is eligible
to escape the punishment of imprisonment.
• Banishment from his area for some specific time, is also considered in
the same way, specially during festivals.
Continued
• The vast majority of offenders released from prison will re-offend, about
two-thirds will be re-arrested with three years.
• Most current prison inmates have prior prison experience, and many
repeat offenders are devoted to what has been termed a criminal lifestyle.
• It means the philosophy behind the punishment should think from
future point of view and not just the present situation.
• It will reduce the burden from the Prison system as well and they can
effectively implement the reformative policies.
Continued
• But at the same time, it has to be taken into consideration, that in the
whim of counter effect we should not create any injustice on the
victim.
• Second the accused should consider it as a privilege and not right and
should not mutualize the position considered by the state for him.
• Afterall balancing the system is the task of the state.
Food for brain
• If a person is released on probation and if commits the crime again,
what approach we should adopt for such criminal.
• I) For the second offence he will be punished but at the same time
should we think to give the punishment for the first offence as well?
• II) In your opinion, whether probation is fulfilling the aspect of “not
criminalsing by considering the counter effect”.
Principles of Criminal Liability
Dr Sanjay Bang
Introduction to criminal liability
• It is generally agreed that for any crime following criteria will be taken into consideration
• (1)Physical- a voluntary act or omission ( actus reus) accompanied by
• (2) Mental-a certain state of mind (mens rea) that is guilty mind.
• Further it is said that there are five main points in the totality of criminal liability, they are as follows
• 1) Human action or abstention from action.
• 2) Such circumstances as are specified by law.
• 3) The result of this conduct, in this specified circumstances
Continued
• All the three points are concerned with Actus reus
• Apart from this the fourth and fifth points are related to Mens Rea
• 4) The conduct must be voluntary
• 5) The result must be foreseen
• Although most legal systems recognize the importance of the guilty mind, or mens
rea, the statutes have not always spelled out exactly what is meant by this concept.
Continued
• The Model Penal Code has attempted to clarify the concept by reducing the variety of mental states to
four. Guilt is attributed to a person who acts “purposely,” “knowingly,” “recklessly,” or, more rarely,
“negligently.”
• Broadly speaking, these terms correspond to those used in Anglo-American courts and continental
European legal theory. Singly or in combination, they appear largely adequate to deal with most of the
common mens rea problems.
• 1) Purposefully:- When the act is done by the person purposefully, it will have a greater impact to fix
the criminal liability. It will be taken into consideration that whether the person acts purposefully or
innocently.
• That’s why in most of the countries while fixing the criminal liability, the act of insane person will be
dealt with different parameters and will not be considered as criminal act.
Continued
• 2) Knowledge:- The second important factor is knowledge. If a person is
aware that his action will lead to crime, the liability of fixing the crime is
more than a person who did it without any knowledge.
• E.g:- If a child from age group of 7 to 12 commits crime, then his rational
thinking will be taken into consideration and not age only.
• If a crime is committed by insane person, his liability is not like a common
man.
• 3) Reckless:- In Tort and in crime , the actor intends to commit ( the act in
question) the crime knowingly it may commit harm. It means again
knowledge will be taken into consideration.
• Knowingly that the brakes of vehicle are failed give the vehicle to someone
else to cause accident.
Continued
• Negligently:- I) Duty to take care II) Breach of that duty III) Result in harm
• E.g:- Some farmers use to set electric current in their farm to avoid harm
for their crops by the animal. But if someone (human being) touches the
same mistakenly and dies, the farmer will be held liable.
• Sec 279 of the Indian Penal Code talks about rash driving.
• A bus was taken by unauthorized person and drove the bus for 7 to 8 kms
and killed around 8 persons, the person was held liable for 302 and 279,
but not 279 alone.
• Thus, primarily the criminal liability will be set after considering different
elements.
Actus Reus
• In law, crime consists of two elements - actus reus and mens rea. The
former represents the physical aspect of crime and latter represents
its mental aspects.
• There are two tests of criminality of our law which is based on English law
i.e. actus reus and mens rea. But in Indian law, there are four elements that
go to constitute a Crime, these are –
• 1) Human Being
• 2) Actus reus
• 3) Mens rea
• 4) Injury
Continued
• The first essential element of crime is a 'Human being'. It requires that an
act to be a crime, it is necessary that the act must be committed by a
human being.
• In ancient time, the punishment was inflicted on animals as well for injury
done by them.
• Today, the punishment is inflicted not on animals but on the owners.
• Sec 2 of the Indian Penal Code-1860 “"Every person shall be liable to
punishment under this Code for every act or omission contrary to the
provisions thereof, of which he shall be guilty within India”.
• Sec 11 defines the term person in broader sense by including the artificial
person as well but not animals.
Continued
• R vs Barimingham, where the Construction company was held liable for
not maintaining the highway properly.
• Actus reus:-
• The word “Actus” connotes a deed, a physical result of the conduct. Actus
reus is the result of the human conduct.
• E.g:- A stabbed B with knife. The result is the injury to B. It means injury is
the result of actus reas. Therefore we may say, in criminal law, “actus reus
is the result of human conduct as the law seeks to prevent”.
• The basic principle of criminal liability is embodied in the legal maxim, “
actus non facit reum, nisi mens sit rea”. It means “the act alone does not
amount to guilt, the act must be accompanied by guilty mind”
Continued
• Actus reus includes act or omission as well. Salmond defined an act, “any
event which is subject to the control of human will”.
• Actus reus is well explained in English case Gibbons and Proctor(1918) 13
Cri, where a woman was living with man and with his concurrence she
withheld food from mans child, intending his death. Both of them held
liable, as they failed the legal duty to feed the child and were reason for
child's death.
• 1) Where there is no physical participation of a person.
• 2) Where the participation is indirect.
• 3) Intervention of another person
• R vs Jordon (1956) 40
Mens Rea
• Mens rea is a well settled principle of common law in England. It is
presumed that the wrong doer has done the offence with ill intention.
• Mens rea is the attitude of mind which results in Actus reus. The act is not
judged from the mind of the wrong doer, but the mind of the wrong doer is
judged from the mind of the wrong doer.
• Mens rea is judged from the external conduct of the wrong doer by
applying an objective standard, intention, Negligence and Recklessness.
• Leading case in Mens rea are
• 1) R vs Prince (1875 LR 2 CCR 154)
• 2) R vs Tolson (1889 23 QBD 168)
Mens rea in Indian Law
• Technically speaking Mens rea is not applied to the offences under the
Indian Penal Code-1860
• The Code has defined every offence very clearly.
• Each definition of the offence is complete in itself.
• Surprisingly, Mens rea is not defined in the Indian Penal Code-1860 but its
equivalent expressions like Fraudulently (sec 25), Dishonestly (sec 24),
Voluntarily (sec 39) etc.
• Moreover there is a separate chapter of “General Defenses” from sec 76 to
106 is provided which talks about presumptions of certain act in some
specific circumstances.
• Nathulal vs State of Madhya Pradesh (AIR 1951 SC 204)
Strict and Vicarious liability in Criminal Law
• Generally a man is liable for his own wrongful acts. He is not liable for the
wrongful acts done by others.
• But under certain circumstances a man may be held liable for the wrongful
acts of others.
• This principal is known as Vicarious liability, in Law of Torts master is liable
for the acts done by his servant under this principle because of his
superiority in money, position and influence etc.
• But in Criminal Law, the person who does the wrongful act must be
punished in the interest of the state. The object of the punishment is as
follows
• 1) Prevention of offences
• 2) Protection of the society.
Vicarious Liability in Criminal law
• There are few legislations where the legislatures put certain liability on the
employer, otherwise in absence of those the employer would have taken
the defense that their servants have done the same without their
knowledge.
• Prevention of Food adulteration Act, Sale of Liquor and Drugs Act, Driving a
vehicle etc put liability on the employer.
• If the employer wants to prove that the adulteration has happened without
this knowledge, then the burden of proof will be on him.
• Generally the vicarious liability will arise in following two cases
• 1) Under licensing act
• A, a master has car. He allows B a servant to drive the vehicle. B has no
license and A is aware about this as well. Then A is liable if B commits an
accident.
Continued
• 2) The law imposes upon the owner of the property the obligation of
managing in such a way that it should not injure the other. Where the
breach of obligation arises criminally, the owner is liable.
• E.g:- A propertier of news paper is liable for the “Libel” published in the
news paper.
• Thus, in Vicarious liability one person will be held liable for the act done by
the others, but where he will have certain control over the acts of the
other person.
• This principle is very common in Civil Law but it is very uncommon in
Criminal Law.
• Both in England and in India it is applicable but with certain conditions.
Vicarious liability in English Criminal Law
• It is not common in English Criminal Law.
• Generally, the master will not be liable for the acts done by his servant.
• But to this rule of liability, there are two exceptions as mentioned below.
• 1) A master would be held punishable for a libel published by his servant.
This rule was designed mainly to catch the newspaper propertier.
• 2) A master will be held liable for the public nuisance committed by his
servant. It would be extremely difficult to check effectively acts of public
nuisance of public servants, unless their masters are made responsible.
• Ramanand Raicar case in Goa. ( Indian case) of 2002
Vicarious liability in Indian Criminal Law
• Criminal liability in India is never vicarious, except under few circumstances
• Under the Indian Penal Code, the owners and occupiers are vicariously
liable under section 154 and 155.
• Sec 154 says that the owner or occupier of land is vicariously liable for any
unlawful assembly or riot takes place in his land.
• Sec 155 of the Code says, the owner is held liable for a riot committed on
his land for his benefit, if his agent or his manager takes no steps to
prevent it.
• R vs Prayag Singh ( ILR 1890 12 ALL), A riot took place in the land of Prayag
Singh and one person got killed, Prayag Singh was held liable under section
154 of the Indian Penal Code and accordingly a fine of rs 1000 was imposed
upon him.
Food for Brain
• A tank was constructed by the State in park. The waterflow in the
tank was causing disturbance, it was informed to the State that the
tank is causing hardship. It was under consideration of the state,
meanwhile the Engineer ordered to change the location of the tank
and rapidly finished the task as well. In that year, heavy rain took
place and because of that the water into the tank crossed its
maximum level and busted out. Because of that water, which entered
into the locality, not only affected the property of the people but
killed 3 persons there as well. Under the above situations, can we
held the State liable for the act done by the Engineer?
Corporate Liability
• Nowadays, the form of liability is getting changed rapidly
• Even a Company is liable for the acts of its directors, managers and its
employees.
• Specially, the provisions under the Companies Acts were misutilised for tax
avoidance, but now it will be considered liable for the acts of the
employees.
• This new term is know as Corporate Liability.
• Even in environment issues, the employer will be held liable for not
following the standards set under the Environment Protection Act-1986.
• Even in case of animals the vicarious liability is arising, but uptil now in
india, such cases are dealt in Law of Torts.
Derivative liability
• Derivative liability refers to being held accountable for the acts of another,
based upon assistance provided to that person. Anyone who intentionally
participates in a crime as an aider, abettor, or co-conspirator may be held
responsible for it.
• Derivative criminal liability includes inchoate offenses (criminal attempt,
conspiracy, preparatory offenses, etc.), complicity (joint perpetration,
perpetration through another, incitement, solicitation, accessory ship,
etc.), organized crime, natural and probable consequences liability, post-
crime aid, enterprise liability, terrorism and terrorist infrastructure, and
many more forms of criminal liability, clearly making it a major pillar of
modern criminal law. Although derivative criminal liability affects countries
worldwide, there is still no general legal theory that covers this issue.
Derivative liability in Indian Penal Code
• Under section 34 which talks about Common Intention and sec 149 talks
about Common object deals with derivative liability.
• Under Derivative liability the person will be considered equally liable as if
he has committed the offence by aiding the main accused, that’s why
under Indian Laws and in English laws, the offence will be considered at
different parameters and the person will be considered Principle criminal
as well.
• Sec 511 of the Indian also talks on the derivative liability of the offence.
This type of liability is very important specially, when the benefit of doubt
is going wrongly to the accused.
• Hence it is the responsibility of the Judicial Magistrate to calculate the
Vicarious liability and then the Derivative liability
Food for Brain
• Two boys and two girls invited a third girl for the party. Without her
knowledge, some intoxicated food was given to her and because of
that she felt unconscious. Meanwhile the two boys raped on her. Now
the state has filled criminal case against all Four under section 376 (D)
and section 34 of the Indian penal Code-1860. The defense lawyer
was trying to argue that section 376(D) is not gender neutral section
and it is applicable only against males and not females. If section 376
is not made applicable section 34 will go out automatically. Explain
your opinion with reasoning.
Corporate Liability
• The economic aspects have changed rapidly. Because of inclusion of
Technology, a person can transfer the Crores of rupees in a flash
through his computer.
• The Companies Act-2013 has curtailed the options of scam up to the
extent by adding Criminal Liability for Directors and so on which was
missing in the previous Act of 1956.
• The authority of Auditor was also negligible in previous Act and that’s
why we witnessed scandals like Satyam.
• Now even The Securities Exchange Board of India have also
regularized stock market to avoid scandals which took place in stock
market in 1988 and the Act was enacted in 1992.
Variations in liability
• The Criminal Liability depends upon the knowledge and reasonableness of the
person.
• Sections 76 and 79 of the Indian Penal Code-1860 talk on the defense based upon
the mistake of facts.
• Conditions to be fulfilled for availing mistake of fact as a defence – Sections 76 &
79 of IPC. The mistake must relate to FACT and not to LAW. The state of things
believed to exist would, if true, have justified the act done. The mistake must be
reasonable.
• State of West Bengal vs Shew Mangal Shaha,(1981) here Mangal Shah gets the
benefit that he worked under the order of Superior and he followed his directions
only.
• Mistake of fact will be considered but not mistake of Law
Intoxication
• Involuntary intoxication is covered under section 85 of the Indian Penal
Code-1860. But section 85 talks on following Three grounds
• 1) Incapacity to know the nature of his Act.
• 2) Incapacity to know that whatever he is doing is wrong or contrary to the
law.
• 3) Intoxication without knowledge or against his Will.
• Voluntary intoxication is covered under section 86 of the Indian Penal
Code-1860 which is not a valid defense to get free from the Criminal
Liability.
• Thus, it is one of the important grounds to see the criminal liability upon
the person.
Compulsion
• An act done by me against my will, is not my act of Defence of compulsion
under Section 94 of IPC (except murder and offences against the State
punishable with death.
• Defence of necessity (Section 81 of IPC) is based on the maxim ‘necessitas
vincit legem i.e., necessity overcomes law.
• Necessity as a reason for homicide – R v Dudley and Stephens, 1884
• There are few categories of person who are completely exempted from
Civil or Criminal Liability. If the State is taking any action, the State has to
remove them from the position first and then can initiate the action.
• These persons are given the exemptions based upon their special position,
it is privilege and it can be taken out in exceptional conditions.
Continued
• 1) Infants:- Incapacity to understand the nature and consequence of an act
or omission – basis exempting a child below seven years from criminal
liability (Section 82 of IPC)
• 2) The Sovereign: Based on the doctrine that the sovereign or government cannot commit a legal wrong
and is immune from civil suit or criminal prosecution.
• 3) Insane persons: A complete defence to criminal liability in offences involving mens rea. Insanity in IPC Sec.
84. Every type of insanity is not a legal insanity unless the cognivance faculty is destroyed as a result of
unsoundness of mind. Baburam Mahali v. State of West Bengal, 2005.
• 4) The President and the Governor:- As per Article 361 of the Indian Constitution, President and the
Governor have been given the privilege and away from the Criminal Liability.
•
Continued
• 1) If a country has declared war against other country without the
Will of the people and caused huge loss to human resources, money
and other resources as well. In this circumstances can we held the
State criminally Liable?
• 2) Japan stopped the Second World War on 14th August 1945, even
after suffered huge loss on 6th and 9th August 1945 by two atom
bombs. The American President was about to drop the Third atom
bomb had Japan not surrendered on 14th August. The loss, which was
easily visible to common people was not taken into consideration and
it was continued even for next five days. In this situation can we held
the King of Japan liable?
Classification of crimes
Dr Sanjay bang
Associate professor law
Points to be covered
• After going through this simple unit you will be able to understand
• I) The classification of crime. The initial and the modern as well.
• II) The purpose of classification of crime.
• III) The comparative classification of crime in India and England.
• IV) Whether such classification is needed or not.
• V) The role of legislatures in classification of crime.
Need of classification
• Classification is a process of categorization. It is the process where the
objective is identified in anticipation.
• Classification is also recognized for the process and to understand the
classes to whom this assignment can be given.
• Classification is required for the smooth administration and to achieve the
object is a proper way.
• Warren Heisting, introduced the concept of collector to collect the revenue
from each unit, in todays language district, after introduction of this
system, the process of collection of revenue has become very simple and
easy.
• The success of any organization depends upon how effectively it has
recognized the object and set the method to achieve this.
Classification in crime
• The purpose of the Criminal Administration is to justice in broader sense.
• This justice is equally applicable for the victims and the accused.
• If the process of justice may be from the investigation, trial and
punishment if not categorized, it will not only create injustice to the victim
and the accused but it will take huge resources of the state and it will be a
potential threat to the law and order issue as well.
• The classification will give clear idea and the objective to achieve to the
agencies and it will create transferency in the administration of justice
which requires for a common man to put his faith in the State.
• Based upon the classification only, the agencies can work.
• E.g:- CBI, NCB, ED and probably the NIA may become the Fourth federal
agency to be involved in the case.
English position
• In England, till the period of Norman conquest there was no true criminal
law procedure.
• There is no clear indication as to what are the factors that should be taken
into account in the matter of assessing the sentences to be imposed.
• In many countries there are laws prescribing sentencing guidelines.
• Because of this it was on the discretion of the Crown to punish a guilty
person , and it was not a uniform type of punishment for the offences.
• If there is no uniformity in the punishment and the administration of
justice, there will be threat to Law and order and it will be injustice to the
accused.
• The best example is the offence of adultery is still tort in England and not
crime and never the pains were taken to consider it as a crime.
Introduction
• Most legal systems divide the crimes in categories for various purposes
connected with the court procedures and administration.
• The primary part of division of crime is thus, for the administration of court
procedure.
• The procedure of the court differed significantly according the offence
committed by the offender and nature of the crime.
• Common law originally divided the crime into two categories 1) Felonies
crimes, generally punishable with death and forfeiture of the property of
the criminal. 2) Misdemeanours , where the punishment would be
imprisonment or penalty.
• But with the passage of time, it was realized that this classification further
requires subcategory as it was causing hardships in few matters.
Continued
• For example, theft was always considered as felonies irrespective of the
amount stolen and fraud was always considered misdemeanour. It was
realized first time I England and specially in the beginning of 19th century.
• However this could not take proper shape in England till 1957, when first
time the offences were divided into arrestable offence and non arrestable
offence.
• Further the subcategories were formed like “indictable” “either way” and
“summary”. But we can consider this for the procedural part particularly.
• In India, the same type of classification has been adopted in the Criminal
Procedure Code-1973.
• The Cognizable and Non-cognizable offences.
• The Warrant trial, Summons trial and the summary trial.
Points to be covered today
• 1) Offences in the Indian penal code-1860
• 2) Offences under Special laws and the Local laws.
• 3) Classification of offences under the Criminal Procedure code-based
upon the procedural part.
Classification of crime in Indian Penal Code
I) Offence against body
II) Offence against property
III) Offence against State
IV) Offences relating to documents and property mark
V) Offences relating to marriage
VI) Offences relating to false evidence and public justice
VII)Offences by or relating to public servants
VIII)Offences against public tranquility
IX) Offence against reputation
Offences under special laws and local laws
• I) Offences under forest legislations
• II) Offences under narcotic drugs and substances
• III) Offences under the motor vehicle
• IV) Offences related to sexual harassments at work place
• V) Offences covered under the atrocities and the protection of civil rights.
• VI) Offences related to Information and Technology
• VII) Offences in maintenance of internal securities
• VIII) Offences in Karnataka ownership of apartment
• IX) Offences under the land acquisition acts
Food for Brain
• Mr. A made a false certificate and appeared for the UPSC interview. In fact he
was having that experience, but it was for 7 years and he showed it 11 years.
Based upon that he got little higher post than what he was eligible for. What's
your opinion? Which offence he had committed?

• Mr. B had taken the alcohol in state “x” where it was not banned. Mr. B was from
state “Y” where it was banned. After consuming the alcohol, he entered into state
“Y”. The police stopped him. In your opinion, what offence Mr. B has committed?
• Mr . C who was sitting in other country, has purchased from the Credit Card of
Mr. S for 15 dollars without his consent. Mr. S traced the matter in the morning as
the country where this fraud took place, it was gap of 4 hours. Mr S has filled the
case against unknown offender. Whether we can held him liable under the
Information Technology Act-2000?
The procedural part
• The procedure to deal with these offences is given under the Criminal
Procedure Code-1973 in Schedule 1.
• Part A talks about the matters under the Indian Penal Code-1860
• Part b talks about the matter under the Special Laws and the local laws.
• Based upon that the Criminal Procedure Code-1973 has classified the
offences under broad 3 categories
• A) Bailable and Non bailable offences.
• Arnesh Kumar vs State of Bihar (Appeal number 1277 of 2014)
• B) Compoundable offences and Non compoundable offences
• C) Cognizable and Non cognizable
Cognizable and Non cognizable offence
• A Cognizable offence or case is defined as the one which an officer in-
charge of a police station may investigate without the order of a magistrate
and effect arrest without warrant.
• The Police have a direct responsibility to take immediate action on the
receipt of a complaint or of credible information in such crimes, visit the
scene of the crime, investigate the facts, produce him before a Court of
law having jurisdiction over the matter.
• Non-Cognizable crimes are defined as those which cannot be investigated
by police without the order of a competent magistrate. The Police do not
initiate investigation in Non cognizable crimes except with magisterial
permission.
• First Schedule of the Cr.P.C. gives the classification of the offences of the
IPC into Cognizable and Non-Cognizable categories.
Procedural part to deal with the offences
• Sec 468 of the CrPc talks the procedural aspects
• I) All those offences where the punishment is fine, the charge sheet
(complaint) should be filed up to 6 months.
• II) All those offences where the punishment is from 1 day to 1 year
and fine, the charge sheet (complaint) should be filed up to 1 year.
• III) All those offences where the punishment is more than 1 year but
upto 3 years and fine, the charge sheet (complaint) should be filed up
to 3 years.
• IV) All those offences where the punishment is more than 3 years and
fine, the charge sheet (complaint) cab ne filled at any time .
Continued
• 1) Warrant trial:- Grave offences are dealt here, where the punishment is
more than 3 years, here formal charge is fixed.
• 2) Summons trial :- In this type the less severe offences are dealt. Those
Offences where the punishment is more than 6 months but less than 3
years. The procedural aspects is easier than Warrant trial, which could save
the time of court.
• 3) Summary trial:- In this type , the small and petty offences are dealt. All
those offences where the punishment is up to 6 months can be handled by
the court in this type of trial.
• Thus, the Indian system works to deal with the offences and the procedural
part though it is clear but still ends in complication only. Neither the
parties, investigating agencies and the judiciary are finding any satisfaction.
Indictable Offence
• What is cognizable offence in India, is known as indictable offence in many
western countries.
• It is a serious criminal offence which is triable only on indictment in the Crown
court as per English laws.
• The same is considered as Felony in American Legal systems, specially in USA.
• In England Magistrate handles mostly summary cases like motor accident cases,
common assault where injury is not so serious and those criminal cases where
the damage is negligible.
• Most serious cases are transferred from the Magistrate to the Crown like Murder,
rape, robbery.
• In England there is a separate act called Indictable Offences Act-1848.
• The jury will frame the charge and put the same before crown and the solicitor
will tell in detail in court exactly what happened.
Continued
• If a person is not satisfied with the decision of the Crown Court, he can prefer
appeal.
• This appeal can be filed in the Court of appeal.
• There is again a separate legislation called as , “Appeal in Criminal Act-1968”.
• Thus, the indictable crimes are handled in England and the western countries.
• In USA, all offences where the punishment is more than 1 year are considered as
Felony.
• The punishment will vary and it is different than what we see in India.
• Felony is divided into 5 category A, B, C, D and E.
• For A punishment will be life imprisonment or death.
• For B more than 25 years.
Continued
• For C less than 25 years but more than 10 years.
• For D less than 10 years bur more than 5 years.
• For E less than 5 years but more than 1 year.
• In all 5 category, the maximum possible punishment which the USA
criminal court can impose, is $ 2,50,000.
• In USA however, 38 States have already abolished the Capital punishment
and only 13 have retained the same. The States where Capital Punishment
is not given, the life imprisonment is highest punishment.
• Generally, the categories for offence Indictable, misdemeanour but in the
USA, there is one more category and that s known as infraction where the
punishment is less than 5 days.
Different types of Felonies
• Felony charges have some of the most serious penalties that any type of crime can have.
Substantial prison time and fines are just the beginning of the consequences.
• Felony charges have a major effect on your rights as a citizen of the United States. It can
affect your ability to obtain a job, to find and acquire a home, and so much more.
• A criminal charge is detrimental in both your personal and professional life. It may
suspend the rights forever which will impact to get the loan related to education, housing
and personal.
• Though in US, now some of the offences which are serious in nature but if the person has
committed the same for the first time, his offence will be put into misdemeanor.
• E.g- Manufacturing the controlled drugs or delivery of the same are covered under felony
but if the person has possessed a small quantity of the same it is misdemeanor.
•
Petty Offences
• Legal provisions regarding special summons in cases of petty offence under
section 206 of the Code of Criminal Procedure, 1973.
• Sec 206 of the Criminal Procedure Code-1973 provides a detailed procedure
regarding disposal of the petty offences.
• But sec 206(2) of the Criminal Procedure Code-1973 explains that petty offences
are those offences which are punishable only with fine not exceeding with
thousand rupees but it does not include any offence under the Motor vehicle Act-
1988 or any other Act where the provision of imprisonment is there.
• Sec 206(3) of the Criminal procedure Code-1973 empowers the State to give
guidelines to the Magistrate to deal the matter under sec 206 of the Criminal
Procedure Code-1973 which are covered under sec 320 which are compoundable
in nature and punishment is not more than three months.
Continued
• In 245th Law Commission Report Justice Shah who was Chairman submitted his
report and tried to reduce the burden and back lock from the lower courts in a
scientific way.
• He said that the petty offences should not be dealt by the courts and should be
handled to the independent department, which we can create.
• Chandigarh police, in 2018 submitted its report to the Home Ministry where they
mentioned that out of 470 petty offences 401 are committed by the educated
people.
• Now the Court have taken a different approach, instead of putting the person
behind the bar, even in those cases which don’t fall under the category of petty
offence is trying to impose fine, deferred sentences, economic sanctions, release
under judicial sentences and impose fine etc.
• The person who has been considered under petty offences is undergoing one or
other punishment and literally it doesn’t mean decriminalization.
Continued
• Thus, we can say, that petty offences are those offences where punishment
is small fine or just short term imprisonment.
• In such type of cases the Magistrate can initiate the proceedings even
without summoning the accused. These offences are dealt under the
Summary trial.
• As per section 376 of the Criminal Procedure Code-1973, there will not be
any appeal under petty offences.
• It doesn’t mean that there will not be any appeal in all the cases which are
dealt in summary trials.
• Though it is not the effect of any amendment, but now a days the mindset
of the court is not to put any person in prison, just to reduce the burden
from the system.
Continued
• With an aim to put speedy justice to the people, in petty offences the Allahabad
High Court has issued the guidelines in May 2015 and initiated the scheme “ Saral
petty offences deposit scheme” through which the offenders in such offences will
directly deposit the amount in the provided bank account and will get rid of
further matters associated with such petty offense.
• The scheme would ensure disposal of such cases under section 206(2) of the
Criminal Procedure Code-1973.
• The name of the account given in the State is “Power Jyoti” account in the State
bank of India.
• The scheme is initiated with the aim to ensure quicker justice and save the time
of judiciary and the offender.
• The Bank is charging 50 rs extra than the amount which is to be deposited in the
account.
Continued
• The Scheme would ensure that such kind of cases would be disposed under
section 260 and 261 of the Criminal Procedure Code-1973.
• Section 260 provides a detailed list of those offences which can be tried
under Summarily trial. If a person is depositing the amount in the above
petty offences, the matter will be automatically disposed as per new
guidelines in Uttar Pradesh.
• The offences covered under Motor Vehicle Act-1988, the challan's under
Police Acts, Public gambling Act are primarily covered under the scheme.
• The scheme is providing good result in Uttar Pradesh but other states have
not yet implemented such kind of scheme, except in violation of traffic
signals, where now a days direct challans are sent to the violator of the rule
and he can deposit the same into the provided account.
• If any person is not satisfied, he can approach to the court directly.
Evaluation of Petty Offences
• Undoubtedly, the petty offences and the procedural part in inserted in the
Criminal Procedure Code-1973 with the intention to save time, resources and to
give extra time for those cases which are serious in nature and pending for a long
time.
• Infect, this is a privilege and can not be claimed as right.
• The Supreme court of the country, in May 2020, rejected the plea seeking
quashing of FIR, in section 188 of the Indian Penal Code-1860. Number of people
sought this from the Apex Court who violated the order given by the State
intentionally during COVID-19
• In the same matter the Supreme Court cleared the question, in other matter , as
well, people requested the High Courts through pleas and some in Supreme
Court regarding not filing of the matters under the Disaster Management Act-
2005, and thereby order the State Governments to continue the filing of the
cases under the same Act.
Continued
• Section 188 of the Indian penal code, talks about punishment in case of willful
disobedience of the order of the Public servant.
• Section 188 of the Indian Penal Code-1860 attracts punishment of 1 year or fine
of 200 rs or both and if willful disobedience causes danger to the life of any one
else, this punsiment will be 6 months imprisonment and fine upto 1000 rs.
• As per the interpretation, these cases falls under section 206 of the Criminal
Procedure Code-1973.
• But the Apex Court rejected the same under the Bench headed by Justice Ashok
Bhushan and cleared the position of petty offences much better which was not so
clear before the decision of the Supreme Court during lockdown because of
COVID-19.
• Even the claim taken that registration of cases under section 188 of the IPC is in
violation of Article 14 and 21. the registered cases in Uttar Pradesh were 15378
for 48503 persons.
Petty offences in United States
• The U.S Code section 18 and 19 talk about Petty offences in the United States.
• These offences are called Misdemnour B category or Misdemnour C types of
offences.
• Sixth Amendment to the Constitution of the USA in 1789, assures that all the
defendants in the Criminal Law, will get the right to be tried before Jury and since
more than 200 years this system is in existence.
• But now the USA federal Court has expressed that there are few offences where
the public resources are not worth to spend and it is in no way violation of the
Sixth amendment to the Constitution.
• These offences are petty offences. The accused if accepts the offence will directly
pay the fine and will get rid of all the formalities in the trial.
• The concept of Plea Bargaining emerges from the USA only in petty offences.
Petty Offences in England
• This guidance has been prepared to help decision-makers who are reviewing cases involving
minor offences to decide whether a prosecution or an alternative disposal is more appropriate.
• In cases involving minor offences, a decision to prosecute may have serious ramifications if the
prosecution is a disproportionate response to the offending. For instance, the cost to the person
charged and to the criminal justice system (CJS) may be disproportionately high in relation to the
loss or harm caused by the offence; and even if the prosecution is successful, it may result in only
a nominal penalty being imposed by the courts.
• Such kind of cases will be dealt by police in some cases and there is one alternate method as
caution, conditional caution, penalty notices for disorder, warning to youths and even in some
cases no action against the offender.

•
Misdemeanour
• These are recognized as lesser serious offences than Felony. Misdemeanours are
normally defined as offences punishable by fine or short term imprisonment in
local jail. Misdemeanor comes from “demenor” which means “ behaviour
towards others”.
• In US, the classification of crime is as Felony or misdemeanour is determined by
the punishment attached to it. If punishment is more than 1 year it will be
considered as felony.
• Thus, in the USA, the Federal Government considers those crime which are
punishable for lesser than one years imprisonment as misdemeanour.
• In Misdemeanour community service, probation, fine and imprisonment for less
than one year is normally given in these offences.
While the federal criminal system occupies an outsized place in the national
conversation over serious crime, in the misdemeanor world, federal authority is
something of a footnote.
Continued
• Misdemeanor reform is a quintessentially local affair. States, counties, and
municipalities control every aspect of the petty-offense system, from defining
and decriminalizing offenses, setting penalties, providing counsel, running jails
and probation programs, to collecting fines .
• The functional hallmark of misdemeanors is sloppy, informal speed: Convictions
are produced through plea bargaining quickly and in bulk, without much due
process .
• Police are the first and most powerful players in the misdemeanor world. They
decide who will encounter the criminal system in the first instance.
• Policing policies and practices fill the enormous petty-offense pipeline. With
approximately 15 million arrests per year, the vast majority of which are for
misdemeanors, the scope and nature of low-level policing determine who will
sustain a misdemeanor conviction and what sorts of offenses will be pursued.
Continued
• Police make low-level arrests for all kinds of reasons. They may be
responding to a 911 call or a victim’s report of a theft or assault, the kind of
reactive, investigatory policing common to felonies where a crime has
already been committed.
• But much of misdemeanor policing is proactive, preventative, and highly
discretionary. Police may use arrests to clear a corner, to send a message of
high authority in the society.
• Police may also be under pressure to make arrests for professional
reasons. Many departments impose formal or informal quotas under which
officers are required to generate large numbers of arrests gain promotion.
• Once a person is arrested, they may be required to pay bail. Bail is an
amount of money set by the court to ensure that the defendant shows up.
Misdemeanour in England
• In England, the type of sentences is to be imposed by the Statues. There
are four main types of sentences.
• Discharge, fine, community service and imprisonment.
• In case of misdemeanour, at the most the English courts have tried to
impose fine or custodial service which means conditional release if the
offender is first time offender.
• In Misdemeanour, the imprisonment is for a short period.
• Crime and Misdemeanour are in used in British system since 14th century.
• But after passing of The Criminal Law Act-1967 and its amendment in 2003,
the British system has tried to abolish the distinction between Felony and
Misdemeanour as in England, the citizens wont lose any civil rights like the
USA.
Continued
• Thus, today, in England, the Magistrate court handles the offences which are
punishable up to 6 months, directly or indirectly it is like misdemeanour.
• Though procedural aspects is different but misdemeanour is not considered as
privilege in England and the accused cant claim to discharge him from the liability
or impose lessor serious punishment upon him.
• One record is suggesting that the women are negligible in offences of
misdemeanour and fine imposed upon them or community sentencing is almost
5%.
• Does it mean that women in England are not committing crimes?
• Different researches have shown that the procedural aspects in women offenders
is much informal.
• Thus, technical difference of misdemeanour and felony lies in USA but not in
England.
Parties to Crime
Dr Sanjay Bang
Associate Professor Law
Introduction
• Three persons with intention to rob a girl who was working in a call center,
took her to a isolated place after she finished the days duty around 9pm.
Later on they found that she was carrying only 400 rs . She promised that
she will withdraw the amount from ATM and will give the same to those
three persons, to which they didn’t accept. Out of three two raped on that
girl and one out of two murdered her with the fear that she will disclose
the incident to police and it will be dangerous for them. Later on same
person went to one of his friend who was not involved into this incident
and narrated him that he wants to stay with him for certain days and
threatened him that he will kill him if he discloses his stay and incident to
someone else. In the above situation, if you are Police Inspector, how
would you frame the charges against all Four?
Points to be covered
• I) To be able to identify in which circumstances the person will be held
liable as a party to the crime.
• II) To decide the severity of the offence and the act committed by the
persons
• III) Classification of parties to crime
• A) Principal Offender.
• B) Joint Principlal
• C) Secondary parties
• D) Innocent agents
• IV) Apart from the Indian penal Code-1860, the Accessories and Abettors
Act-1861 concerned provisions.
Introduction to unit
• Often more than one criminal defendants play a role in commission of crime.
• When the participation and criminal conduct varies among the defendants, an
issue arises as who is responsible for which crime and up to what degree.
• We need to know about the accomplice liability of the parties in the following
way
• I) A Principal in the first degree who actually committed the crime.
• II) A Principal in the second degree who was present at the scene of crime and
assisted the first degree offender in commission of crime.
• III) An accessory before the facts were not present at the scene of crime but
helped in preparing the same.
• IV) An accessory after the fact by providing the principal offender with aid,
comfort and assistance in order to avoid the arrest and prosecution.
Principle Offender
• When an offence is committed the following persons will be considered as taken
part in committing the offence and guilty under the same. They will be charged as
Principal offenders
• I) Every person who actually does the act or makes the omission which constitutes
the offence;
• The example which we shared the person who committed the murder directly will
be charged for murder.
• 2) Every person who does or omits to do any act for the purpose of enabling or
aiding another person to commit the offence;
• In the above example had the other persons had not stopped the main accused
from committing the crime and they were equally liable for the same.

•
Continued
• 3) Every person who aid the another person in committing crime.
• If a person passively assist like providing the accused with any weapon,
misguiding the victim and taking him to isolated place where the accused
will kill him.
• 4) Any person who procures or councils the other person to commit the
crime.
• In Gulshankumar murder case, though Nadeem who was acting from
England had given the amount to the accused to kill Gulshan Kumar has
been charged with the offence of murder and he is the principle offender.
• Thus, the principal offender carries the actus reus and he is the main
proprietor to the crime.
Food for Brain
• A doctor knows asked the nurse to give a medicine. He knows that it
is poison and it will kill the patient slowly. Nurse administrated the
dose regularly without having any idea that she is giving the poison to
the patient. After a week, patient dies. It was detected by the police
in the above case, that patient dies because of continuous
administration of poison. The nurse said that she was unaware of the
fact that it was poison and she innocently did the same thing. Doctor
put entire blame on nurse. If the case comes before you, how would
you judge the case?
• 1) Whether the nurse is totally innocent?
• 2) Whether the doctor is principal offender?
A principal in the second degree
• The principal in the second degree is one by whom the actual perpetrator
of the crime is aided and abetted at the very time of its commitment.
• Common Law for the purpose of punishment has kept abettor and principal
criminal on the same footing.
• Before a person is charged as a principal in the second degree it must be
established that he had aided or assisted the principal criminal.
• It is immaterial whether the person is present on the scene or not, if he
assisted he will be considered as a principal in the second degree.
• The essential principle is that the accomplice should be rendering aid,
assistance or encouragement.
Continued
• But at the same time, mere presence of accused on the crime scene will
not be considered or is not sufficient for rendering him liable as abettor.
• A man may be unwillingly encourage another I fact by his presence, by
misinterpreted words or by his silence or may by non interference.
• Sometime the presence of the accused may encourage intention or actions
intended by expression, gestures or actions intended to signify approval.
• If we compare both the situations undoubtedly, the offenders in the first
category can not be held a principal in the second degree just because of
their presence, where as in the second category, their action is approving
the action and they will be held liable for the principal in the second
degree.
• Difference between active and passive participation makes a big difference.
The position under the Indian Penal Code
• Such type of offences are covered under the Indian penal Code-1860 in two
sections properly.
• Sec 109 and sec 114 of the Indian penal code.
• Sec 109 talks about the abetment of offence by a person.
• If a person offers bribe to a public servant for discharging his official duty
and the public servant accepts the same, the person who offers the same
will be held as abettor and he will be considered as principal of second
degree.
• Sec 114 of the Indian penal code talks about the presence of the offender
at crime scene and will be considered as abettor, but as already pointed
out the degree of the offence will be considered based about the different
factors which we discussed in the last slide.
Classification of abetment under the Indian
Penal Code-1860
• We need to see section 107 of the Indian penal code-1860 for that
purpose.
• A person abets the doing of a thing
• I ) Instigate any person to do that thing
• II) Engages with one or more person or persons in any conspiracy for the
doing of that act, if an act or illegal omission takes place in pursuance of
that conspiracy, and in order to doing of that thing.
• III) Intentionally aids by an act or illegal omission for doing the thing
• Thus, the abatement is classified in following three ways
• 1) By instigation
• 2) By Conspiracy 3) By intentional aiding
Examples
• 1) By instigation:- The master mind example falls under this category
• 2) By conspiracy:- Two or more persons are coming together to commit
crime. After 1913 it is a specific offence in the Indian Penal Code-1860
under sec 120A and 120B.
• Two prisoners mutually decided to run from the prison and they did as well
by beating the security guard. In this case, both the accused will be
considered under conspiracy and both will be equally liable for the act
done.
• 3) By intentional aiding:- The task is divided among the members and one
person is assisting the other for completion of the task.
• 3 persons went to cut the trees in forest, one was directly cutting the tree,
the other one was guarding the same and the third one was ready with
vehicle.
Case laws
• Baby John vs state AIR 1953 Tra Co 251
• Certain persons decided to march in prosecution against the public
authority. One of the members of the prosecution asked the others to use
force and commit violence against police officials. He will be liable for
Abetment…………?
• Faguna Kanth Nath vs State of Assam AIR 1959 SC 673
• The complaint was carrying two carts full of paddy for sale. The Police
Inspector stopped him and asked for bribe, without which he will not allow
him to go. The complainant also supported him. Both of them were
charged for sec 109, 161 and 165(A) of the Indian Penal Code-1860. The
High Court acquitted the complainant but punished the Police inspector.
The matter went into appeal. Whats your opinion? Abetment…………………?
Food for Brain
• A was beating to B badly. Infect B shouted for long time and the
incidence was taking place in a market where a huge crowd gathered.
But non of them tried to stop this incidence. They were just looking
towards the fight between A and B as spectators. Even two policemen
were also there and they also didn't try to stop the incidence. Judge
the case from the abetment from following
• 1) Whether the public will be deemed as abettor?
• 2) Whether the policemen will be considered as abettor?
• 3) This abetment will fall under which category?
• R vs Mohit Pandey (1871) 3NWPR 316
Difference between English and Indian Laws
• The classification of criminals in England like Principal Offender and Joint
Principal are not followed in India.
• In England, the liability will vary from person to person based upon his
participation, but in India joint liability will be considered and it is
immaterial what was his participation in commencing the offence.
• That’s why the example which we discussed, all the three were held liable
for the offence of murder, though the other two were not ready and mens
rea was completely absent in the case.
• The joint liability concept is discussed in the Indian Penal Code-1860 under
section 34 with the title “Common Intention”.
• Which law is better Indian or English?
Common Intention
• Section 34 of the Indian penal Code-1860 talks about “Acts done by several
persons in furtherance of common intention”.
• Joint liability is defined as “ when a criminal act is done by several persons
in furtherance of common intention of all, each of such persons is liable for
that act in the same manner as if it were done by him alone”.
• The essential ingredients of the section are
• 1) A criminal act done by more than one person.
• 2) Common intention of all.
• 3) There must be participation of all in the commission of the offence in
furtherance of that common intention.
Case law
• Tannu vs State of Orissa (1988 CRLJ 524 Ori)
• In this case four persons attacked on the deceased with a pre-arranged
plan on a public road. The other four persons blocked the road so that the
previous four can give effect to the offence. The police officer prosecuted
the actual four and also the remaining four who blocked the road.
• The Orissa High Court held that the other four persons facilitated by
blocking the road were also having the criminal liability because they
shared the common intention to cause death of the deceased.
• To prove the common intention following three factors we need to prove
• 1) That there was common intention or pre arranged plan 2) That the
person had participated in some manner in the act constituting the offence
3) That there was a criminal act done.
Continued
• This section is inserted to deal with the cases where it is difficult to
distinguish between the acts of the individual members of the party to
prove exactly what part was taken by each of them in furtherance of the
common intention of all.
• As the purpose must be common, the responsibility also must be common.
• Where the parties go with a common purpose to execute a common
object, each and everyone becomes responsible for the acts of each and
every other.
• All are guilty of principal offence and not for abetment.
• Common intention implies the pre-arranged plan and acting in concert in
pursuant to that plan.
• There must be prior meeting of the minds.
Continued
• Parichhat vs State of Madhya Pradesh (1972) 4 SCC 694
• Common intention doesn’t mean similar intention of several persons.
• To constitute common intention it is necessary that the intention of
each of them be known to the rest of them and shared by them.
• Thus, we may say, that the prosecution must prove that each of the
wrong doers must have shared the intention of other.
• The basic difference between “Similar intention” and the “common
intention” is the criminal act is not carried out in furtherance of a pre-
arranged plan by the accused persons in similar intention, where as in
common intention, it is carried out with the same purpose.
Barendra Kumar Ghosh vs King Emperor (AIR
1925 PC 1)
• The sub postmaster of Sankaritolla post office was counting money.
Suddenly a group of people attacked on him and three of them fired.
Because of this staff came there, all the accused ran away from the place
except the accused.
• The Staff caught the accused and the state filed criminal case against him.
The accused said he didn’t fire and nor he was aware about this as well.
• The Trial court and the High Court given him death penalty under section
302 of the Indian Penal Code-1860. The appealed to the Privy Council.
• The Privy Counsel reversed the decision and held that it should be unity of
criminal behaviour.
• Sec 34 should unless it is a necessary interreference deducible from the
circumstances of the case.
Continued
• Though the object of an unlawful assembly is common, the intention of the
several members may differ and indeed may be similar only in the respect
that they are all unlawful.
• Participation in action which is the leading feature of sec 34 is replaced in
sec 149 by the membership of the assembly at the time of committing of
the offence.
• Both sections have a certain resemblance and may to some extent overlap,
but sec 149 cannot at any rate relegate sec 34 to the position of joint
action by the members in the group.
• Both the sections deal with liability for constructive criminality liability of
the persons for an offence not committed by the person or persons
charged.
Continued
• Section 149 is wider than sec 34. However common intention implies a
meeting of the minds of the persons charged of the crime requiring
preliminary meeting, whereas common object refers to a purpose shared
by the members of the group.
• Common intention is considered as joint liability whereas common object
is constructive liability and it can be used only if the number of members
are five or more where as in common intention the number of members
must be more than two.
• Section 34 puts liability without any substantive offence where as sec 149
is itself a substantive offence.
• All the persons committing the crime are equally liable in sec 34 whereas
this is not the case in sec 149 and crime may be or may not be liable.
Comparison between 34 and 114 of the
Indian Penal Code-1860
• Both the sections are not punitive but they state a principle of criminal
liability.
• In sec 34 the act is required to be done by all in furtherance of common
intention whereas under section 114 the abettor simply remains present
and doesn’t commit the offence with his own hands.
• Allahabad High Court in Jaimangal vs Emperor AIR 1936 All 437 explain the
key factor related to both the sections, is to provide for cases in which the
exact share of one of several criminals cannot be ascertained, though the
moral culpability of each is clear and identical.
• Hence in India, while framing the liability in criminal case number of factors
we need to check and not simply putting the liability in joint manner.
Food for brain
• A person was attacked by three persons in the night around 11.30 after he
was returning to home from the movie theater. He was forcefully given the
poison and this was seen by huge public who was also returning to home
after the end of show. The person died after around 3 hours and in
postmortem it was detected that he died because of heart attack. The
charge sheet was filled against the accused but because of the postmortem
report the offence of murder cannot be proved and the accused were held
liable for simple hurt. The media played an effective role and later on it was
traced that the postmortem report was manipulated. The case was
reviewed by the trial court and the doctors were also made the part of the
case and the charges were framed for sec 302, 34 and sec 201 of the Indian
Penal Code-1860? Is this the correct step?
Other Important provisions related to joint
offences in India
• Section 400 of the Indian Penal Code talks on that. According to the
contents in the section, if a person is a member of the gang of the dacoits ,
he will be punished with life imprisonment or rigorous punishment up to
10 years.
• It is immaterial, whether he was actually taken part in the dacoity or not, it
is sufficient enough to held him liable if he is the member of that gang.
• The punishment for being the member of the gang of dacoits is equal to
the punishment like dacoity.
• In this section, common intention or common object will not be taken into
consideration directly as section , itself provides the punishment, and
unlike the other sections, where the liability of the accused will be fixed
upon the satisfaction of section 34 or section 149 as per the case may be.
Provision for section 401
• Section 401 is very similar to section 400, but instead of the member of the
gang of dacoits, here the thieves word is replaced with dacoits and the
punishment is lighter than section 400.
• Here the maximum punishment is rigorous punishment up to 7 years is
considered.
• Even section 402 of the Indian Penal Code-1860 is taking about the liability
in common.
• If the gang of dacoits is ready to commit the offence of dacoity, they will be
punished with rigorous punishment up to 7 years.
• These sections are not generally considered but these are also based upon
the common liability.
Accessories before and after the fact
• An accessory is a person who assists the commission of crime but not
participated in the same.
• The Criminal Law in various jurisdiction makes a distinction among the
parties who take part in the commission of crime. Though Indian Penal
Code doesn’t do so.
• The Indian penal Code makes the difference in punishment in different
sections 136, 157, 201, 212, 216, 216(A),310, 411 and 412.
• This distinction is usually aimed at determining the degree of involvement
which will suffice for criminal responsibility commensurate with the level of
participation in the commission of crime.
• Accessory before the fact means a person who aids, abets or encourages in
commission of crime but who is not present there.
• Many jurisdictions make them liable just like the Principal Offender.
Continued
• Sec 136 of the Indian penal Code-1860 talks about the harbouring the navy,
army officer or soldier, who knows and believes, he will be considered,
under section 34 of the Indian Penal Code-1860.
• Sec 157 of the Indian Penal Code-1860 harbouring, assembling or receiving
knowing that these persons are involved into offence, either in his home,
office , premises in his occupation etc.
• Sec 201 the Indian Penal Code-1860 destruction of evidence.
• Sec 212 talks about harbouring the person to whom the punishment is
given by the court, either shelters, conceals the facts, he will be punished.
• Sec 216 is very much closer to sec 212 but the difference lies is the criminal
who has escaped from the prison.
Continued
• 216 A the Indian Penal Code-1860 any person who is aware that a person is
going to commit robbery or dacoity or has recently committed the same
will be punishable in the court.
• Sec 310 the Indian Penal Code-1860, any person who is associated with any
gang in robbery or child stealing, will be punished by this section.
• Sec 411 and 412 talk about the offence related to dishonestly receiving the
property who know that it is stolen property.
• Indian Penal Code doesn’t talk specifically about the Accessories before
and after the fact like its western counterparts.
• These offences are covered in specific sections as we discussed in th above
sections.
Food for Brain
• A has stolen the weapons of enemy country and kept the same with
his friend at his home. A is a civilian person. Later on it was traced by
the army of the country. They wanted to take action against both the
persons, advice in following two situations.
• 1) If the friend who is residing in the jurisdiction for the same country
whose common man has stolen the weapons?
• 2) If the other person who is native of that country but for his job has
come to other country?
Theories of Punishment
Dr Sanjay Bang
Associate Professor Law
Danger Alaram
• After Delhi ganga rape and murder case, the Criminal Law
Amendment -2013 took place and for offence of rape, death penalty
is introduced for some circumstances. It was expected that the
offender will think twice before committing this heinous crime. From
2014 to 2018 175696 rape cases were registered in India with highest
number in Madhya Pradesh 25259 followed by Uttar Pradesh 19406,
Rajasthan on number 3 with 18542 and followed by 15613 in
Maharashtra. Delhi which was in limelight because of Nirbhaya case
8889 registered for these 5 years . All this data is compiled by the
National Crime Record Bureau. In 2016 38947 total cases were
registered by a Central agency under the Union Home Ministry.
Certain questions to be answered
• I) Why the rape offences are increasing so fast?
• II) Even the death penalty which is considered for the offence of rape
fails to deter the offenders, what is the best solution to come out
from this evil of society?
• III) Do you think population of the state is in proportion?
• IV) The investigation ,the trial and the execution part requires deep
consideration from its utility to the society?
Introduction
• In the beginning of human civilization, human beings were fought
with each other. According to Darwin's theory it was “struggle for
existence”.
• With the passage of time, things changed. The private vengeance
among the members of the society was replaced by “Administration
of justice”.
• A injury to the individual was considered as the injury to the State.
Hence punishing authority was transferred from individual to the
State.
• For this purpose, two wings of the State have been created Courts
and police to look into the administration of justice.
Continued
• The primary operation of punishment consists simply in announcing
certain standards of behaviour and attaching penalties for deviation,
making it less eligible, and then leaving individuals to choose.
• This is a method of social control which maximizes individual
freedom within the coercive frame work of the law.
• It is expected that though the Court is an integra part of the State, but
still the State will not interfere into the activities of the Court, so that
Court can act independently and impartially.
• This concept begin from England, when a group of people to whom
King use to consult before awarding punishment were given individual
status.
Continued
• Punishing the offender is the primary function of the State.
• The object of the criminal justice is to protect the society against
criminals by punishing them under the existence penal Laws.
• Punishment can be used to reduce the incidence of criminal
behaviour either by deterring the criminals or by incapaciting and
preventing them from repeating the offence.
• Theories of punishment contain general policies handling of crime
and criminals.
Relation of punishment and crime
• Sir Walter Moberely has suggested following things
• I) What is inflicted is an ill, that is something unpleasant.
• If it is well and pleasant, people will not afraid of committing the
crime. Everyone loves his liberty more than any other thing, but if the
person is arrested definitely it will be unpleasant for him. The
potential offender will keep themselves away from repeating the
same.
• II) It is a sequel to some act, which is disapproved by the Authority.
• Plastic ban is in Maharashtra, the punishment for disobeying will be
limited in Maharashtra
Continued
• III) There should be correspondence between the act and the
punishment.
• We can easily not the difference of punishment between the offence
of dacoity and theft.
• In case of theft as well, if a person commits offence under open place
he will be punished with imprisonment up to three years where as
the same person if commits crime in dwelling house as per sec 381,
he may be punished up to 7 years.
• Thus, if act is serious, the punishment should be in that proportion
only, otherwise, the object of the punishment will be lost.
Continued
• IV) Punishment is inflicted upon the criminal or upon someone who is
answerable for the same.
• It means only that person who has committed crime, must be
punished. It is the principal of criminal law, that 100 offenders let go
but not one innocent person should be punished.
• That’s why the investigation process and the trial process take time.
• As per sec 167 of the Criminal Procedure Code-1973, the police
officer is having right to remove the name of the person who in his
investigation found not involved in the crime. It is also useful to save
the time of court.
Purpose of the punishment
• I) Peace:- By inflicting the punishment on the criminals, they will be
taken away from the society and the peace will prevail in the society.
• II) Prosperity:- Punishment creates apprehension in the minds of law
abiding citizens, probable offenders and criminals. They afraid to
commit crime and the crime rate will be decreased. The people in the
society then can effectively concentrate on agriculture, industry and
the economy will grow and there will be prosperity in the society.
• III) Fear of punishment is also one of the reason how we can prevent
the offenders from repeating the crime.
Continued
• IV) Deterrence:- When a criminal is punished for the offence by him,
he afraid to commit the offence in remaining life. Thus, it can create
deterrent effect in the society and people will keep themselves from
committing the crime or repeating the same.
• V) Reformation:- If a criminal is reformed, chances are there that such
crimes wont be repeated in the society again. If one criminal is
reformed and spending normal life in the society, it will give the
confidence to other criminal as well. If the State has shown faith in
him, probability is there that he will not break the faith. Criminologist
all over the world profess the criminals are not good or bad, they are
like patients and need to be treated.
Theories of Punishment
• Punishing a criminal has been implemented from the time
immemorial and since the human civilization started.
• In the preliminary stage, sever punishments were imposed to the
criminals even for civil offences such as nonpayment of debt,
panchayat violation, adulteration etc.
• There was no mercy and the punishment used to be imposed on the
whims and wills of the king. There was no strict rule for punishment.
• The modern Penology has come into force from England and the
Western Countries.
Continued
• According to this rule, the punishment s are imposed depending upon
the nature of offences and lighter punishments or penalties for lighter
offence and severe punishment for the severe offences.
• In imposing the punishments, there are different important theories,
propounded by criminologists, sociologists, penologists, reformists
etc.
• There are Five important theories for punishment as follows
• 1) Deterrent theory 2) Retributive theory 3) Preventive theory
• 4) Reformative theory 5) Expiation theory
Deterrent Theory
• Proponents of deterrence believe that people choose to obey or
violate the law after calculating the gains and consequences of their
actions.
• They strongly believe if the punishment is severe than the crime,
people will be automatically remain away from the act itself.
• Bentham explained about “Utilitarian Theory”. According to him, that
greatest pleasure to greatest number of people.
• He first time propounded the idea of pleasure and pain concept while
giving the punishment to the criminal.
Continued
• The word “deter “ means “to abstain from action”
• This is the oldest theory in existence.
• The theory says to impose strict and severe punishments depending
upon the nature of offences.
• This theory only has given birth to Capital Punishment, Life
imprisonment, solitary confinement and during British Administration
Black water decorating for those Indian criminals who were in the
eyes of Britishers were extremely dangerous.
Continued
• The deterrence theory of punishment can be traced to the early
works of classical philosophers such as Thomas Hobbes (1588–1678),
Cesare Beccaria (1738–1794), and Jeremy Bentham (1748–1832).
• The theory of deterrence that has developed from the work of
Hobbes, Beccaria, and Bentham relies on three individual
components: severity, certainty, and celerity.
• The more severe a punishment, it is thought, the more likely that a
rationally calculating human being will desist from criminal acts.
• To prevent crime, therefore, criminal law must emphasize.
Continued
• Certainty of punishment simply means making sure that punishment
takes place whenever a criminal act is committed.
• In short, deterrence theorists believe that if punishment is severe,
certain and rational person will measure the gains and losses before
engaging in crime and will be deterred from violating the law if the
loss is greater than the gain.
• Classical philosophers thought that certainty is more effective in
preventing crimes than the severity of punishment.
• Thus, these factors make the deterrent theory more effective.
Evaluation of Deterrent theory
• Prior to 1960s studies focused only on the philosophical ideas of the
deterrence doctrine, its humanitarian orientation, and its implications for
punishment.
• First time the utility of Deterrent Theory was tested in 1968 in England and
then certain drawbacks of the theory has come forward.
• It explains the general tendency of the people and it failed to prevent
recidivist.
• Several crime occur suddenly on psychological frictions and it is difficult to
say that every time people will calculate gain and loss.
• Punishment for murder and culpable homicide not amounting to murder is
different in the Indian Penal Code-1860
Continued
• The deterrent theory does not create any fear in the minds of the
potential offender. It is based upon the individual thinking capacity.
• Most of the empirical research's have shown that Capital punishment
doesn’t deter the potential offender, if he is recidivist in particular.
• Most of the time, the act of the person is based upon the concept of
revenge and that time the person doesn’t calculate the actual loss
and gain and thereby the deterrent theory doesn’t have the answer
to this solution as well.
• The supporters of death penalty forget about the crime in general and
speak about the crime in particular, which is not the object of the
theory.
Continued
• Further this theory could not stop the recedivism.
• Habitual offenders are far away from the fear which will be imposed
on him.
• That’s why we have witnessed number of people on whom more than
10 cases of murder are registered at a time.
• All these persons are aware about the punishment but still they
continue with these offences.
• But at the same time the impact of deterrent theory is much more on
the common public and here also we need to consider maximum
number of people.
Five points about deterrence concept
• The National Justice Department of the US has pointed out Five facts
about the deterrence in 2016 as follows
• I) The certainty of being caught is more powerful than the actual
punishment.
• II) Sending an individual convicted of a crime in prison is not a very
effective way of deterrence.
• A) They come in contact with different inmates who may spoil their
thinking capacity. B) After staying apart from the society they may
turned non sensitive towards society. C) The reformation system
which is going on with modern prison system is favourable to them
instead of deterring.
Continued
• III) Police deter crime by increasing the perception that criminal will be
caught and punished.
• IV) There is no scientific proof that Capital punishment deter the people.
• In 1864 , in England there was execution of Capital Punishment in open
ground. People went there to see, if it is deterrent why people would have
gone there? They went there as if any sports event is organized. In
stampede which took place during that incidence, killed 7 people.
• Is it really determent?
• V) Increasing severity does little for deterrent effect.
Final touch to deterrent theory
• Justice Holmes from England , was very critical on this theory. He
expressed , “ the theory is immoral as it doesn’t give any way of
measuring the punishment apart from the subjective opinion of the
law givers”.
• Despite this theory has been criticized since long, but it is important
to not that this theory has not been abolished from the book of
penology.
• The Supreme Court of India in State of Karnataka vs Shankar
Basgonda (2002) 3 SCC 738, expressed , “The sentence imposed by
the courts should have deterrent effect on potential wrongdoers and
it should commensurate with the seriousness of the offence.”
Reflection of Deterrent punishment under the
IPC and CrPC
• Sec 53 First of the Indian penal Code-1860 talks on the death penalty.
• Sec 53 Second of the Indian penal Code-1860 talks on the Life
Imprisonment.
• In the Indian Penal Code-1860 there are only 7 section where death
penalty or life imprisonment is provided. Apart from that only in the
offence of Dacoity or Criminal Trespass during the time rigorous
imprisonment or punishment for more than 10 years is provided.
• For offences where the death penalty was an option, Section 367(5)
of the CrPC 1898 required courts to record reasons where the court
decided not to impose a sentence of death.
Continued
• In 1955, the Parliament repealed Section 367(5), CrPC 1898,
significantly altering the position of the death sentence.
• The death penalty was no longer the norm, and courts did not need
special reasons for why they were not imposing the death penalty in
cases where it was a prescribed punishment.
• The Code of Criminal Procedure was re-enacted in 1973 by repealing
the Code of 1898. As per section 354(3) of the Code, the judges
needed to provide special reasons for why they are imposing the
death sentence.
• By that time the deterrent effect was very high but later on we have
changed the attitude towards Reformation of the criminal.
The Supreme Court on Deterrent theory
Supreme Court in Maru Ram vs Union of India AIR 1980 SC2147 sounded
apprehensive and justified deterrent theory as , “In the present distressed
and disturbed atmosphere if deterrent punishment is not resorted to, there
will be complete chaos in the entire country and criminals will be let loose
endangering the lives of thousands of innocent people of our country”.
In State of Madya Pradesh vs Balaram ( 2005) 8 SCC1 , “the Apex Court
observed that the deterrent punishment is the need of the time to ensure
that the civilized society should not go into the era of eye to eye and tooth to
tooth”.
Probably Hyderabad and Kanpur encounter incidences are the best example
of that.
Retributive theory
• To retributive means punitive, to make return to or to pay back.
• This theory says to return the same injury to the wrong doer which he
had committed against the victim.
• According to this theory the wrong doer should suffer the same loss
and experience the pain which he has inflicted on the victim.
• Thus, Eye for eye and tooth for tooth is the principal of this theory.
• While deterrent theory considered punishment as a means of
attaining social security, the retributive theory treated is as end in
itself.
Continued
• According to Sutherland, “ at least since the formulation of Hammurabi‟s
code (in about 1875 B.C.) of ,an eye for eye and a tooth for tooth‟, it has
been urged by leaders and accepted by the general public that criminal
deserves to suffer. The suffering imposed by the state in its corporate
capacity is considered as Political counterpart to the individual revenge”.
• Historically, the principle of lextalion is, that is, an eye for an eye and a
tooth for a tooth, entered the western thought through Mosaic Legal
Tradition, and was applicable to both intentional and non intentional
offences.
• However, the principle of lextalion is “came to be used as justification for
the cruelest and most disproportionate of punishment, particularly in the
Middle Ages”
Continued
• The supporters of this theory don’t treat punishment as a tool to
reduce the criminality.
• The theory there by underline the idea of revenge in the way of State.
• The retributive theory expects that the pleasure gets by the offender
should be outweigh by implementing the pain upon him.
• According to this theory punishment should serve the right thinking
people of the society.
• It will give a satisfaction and will prevent them to take the law into
their hands.
Continued
• It must be stated that the theory of retribution has its origin in the
crude animal instinct of individual or group to retaliate when hurt.
• The modem view, however, does not favour this contention because it
is neither wise nor desirable.
• On the contrary, it is generally condemned as vindictive approach to
the offender.
• The retributive idea implores for some kind of proportionality
between crime and punishment and it disregards all punishments
which are misappropriate in every sense.
The supporters of Retributive theory
• Retributive theory and the principle of lextalionis is found support in the
writings of Hegel and Kant, two philosophers who have made rich
contribution to the understanding of this theory.
• Immanuel Kant explains, “right to impose criminal punishment as the right
of the sovereign as the supreme power to inflict pain upon a subject on
account of a crime committed by him”.
• According to Hegel , a crime is an infringement of rights; this infringement
is erased by the infringement, caused by the infliction of punishment, of
the rights of the criminal, and in particular of his right to freedom.
• He said this theory is purely for past crime and present punishment and
past crime, not between present punishment and future effects.
Criticism of Retributive theory
• The critics of this theory say that retributive punishment is barbaric and
brutal.
• Bentham criticized this theory by saying no peace and prosperity shall be
accorded to majority people in the society by adopting retributive
punishment.
• The critics also opine that the retributive theory could not show any
solution for social and economic offences.
• This theory also fails to explain upon those people who have committed
crime in sudden and grave provocation and they are not the permanent
criminals.
• Retribution is often assimilated to revenge, but a public rather than a
private revenge.
Continued
• Salmond criticized this theory by saying that crimes are not like debt and
credit accounts in the banks. Revenges can not be retributed just like bank
accounts.
• The Act must be enacted to remove the defects in the society if they are
traced.
• The primary object of the criminal justice administration is to prevent the
crime in future and not just to take the temporary revenge.
• Thus, we can say this theory focus on short term goal and not the long
term goal.
• In recent times, the discourse of penal philosophy in criminal law seems to
be undergoing a paradigm shift. Doctrine of proportionality has gained
much acceptance now a days.
Supreme Court on Retributive theory
• In Lehna v. State of Haryana (2002) 3 SCC 76, the Supreme Court observed,
“The principle of proportion between crime and punishment is a principle
of just desert that serves as the foundation of every criminal sentence that
is justifiable.”
• Justice Chinnappa Reddy in the celebrated case Bishnu Deo Shaw v. State of
W.B. (1979) 3 SCC 714 ““The retributive theory is incongruous in an era of
enlightenment. It is inadequate as a theory since it does not attempt to
justify punishment by any beneficial results either to the society or to the
persons punished”.
• Justice Krishna Iyyer was against retributive theory. He considered capital
punishment as “ crime against criminal”. According to him punishment
should not be to harsh and to lenient.
Continued
• The Hon’ble Supreme Court in Nadella Venketkrishna Rao v State of
AP, AIR 1978 SC 480 held that the whole goal of punishment is
curative. Accent must be more and more on rehabilitation rather than
on retributive punitively inside the prison.
• In Rajendra Prasad v. State o f UP, AIR 1979 SC 916 The retributive
theory had its days and is no longer valid. Deterrence and reformation
are the primary special goals which make deprivation of life and
liberty reasonable as penal panacea.
Food for Brain
• A cricketer who was charged with the murder of his wife, who was in
live in relationship with one rich person. In the court he tried to say
that when he comes to know about his wife's affair he wanted to
commit suicide but mistakenly the bullet hit in the head of his wife. In
the postmortem, 7 bullets found in the body of his wife. All the three
courts refused to accept his defense and ordered death penalty.
There was a debate in the society regarding the punishment. One
group was saying this is cruel punishment and he should have been
sent for the imprisonment considering his background where not a
single crime was registered against him.
• Continued
Continued
• The other group was saying that he killed his wife at his home only.
Why he carried a gun fully loaded and then also he put one bullet and
fired. Mistakenly one bullet can be fired and not 7. He should have
been awarded death penalty only.
• 1) Which group you are supporting?
• 2) In such kind of offences, whether deterrent or retributive theory is
useful?
• 3) Is there any third theory which may be applicable to solve this
issue?
Give a thought over a minute
• “ Let the Hundreds offender set aside but not punish the innocent one”.
• “ Benefit of doubt always go to the accused”.
• “If the offender is not in a position to engage the advocate , it is the
responsibility of the State to provide him with”.
• There is limitation period given in section 468 of the Criminal Procedure
Code-1973, which permits the time limit for the agencies to file the case,
within that limit, otherwise the case would be discharged, even without
hearing of the facts of the case as well.
• Even in prison , it is the responsibility of the Authority, to reform the
prisoner.
Expiation Theory
• The expiatory theory is based upon moral principles, had little to do with
law or legal concepts.
• This theory is more related to ancient religious perceptions regarding crime
and punishment when prisoners were placed in isolated cells to repent or
expiate for their crime or guilt from the core of their heart and resolve to
shun crime.
• It was believed that anyone who sincerely repents for his misdeeds or
crimes, deserves to be forgiven and let off.
• In tortious liability and in criminal laws as well under section 320 of the
Criminal Procedure Code-1973 we find the reference of compoundable
offence.
• Hegel and Kopler are supports of this theory
Introduction
• Expiation means the act of expiating, or atonement.
• According to this theory the compensation is awarded to the victim
from the wrong doer.
• By awarding compensation from the pocket of the wrong doer he is
punished and prevented from committing such offences in future.
• It would be a lesson for the other wrong doers as well.
• This is not the new concept, if we look towards the epic period. Valia
a famous dacoit turned into a sage (Maharishi) Valmiki and wrote the
Ramayana. It is the greatest example of the expiation and
reformation.
Continued
• The theory of restoration takes a victim-oriented approach to crime
that emphasizes compensation for victims, rather than focus on the
punishment of criminals.
• This theory advocates restoring the victim and creating constructive
role for victim in the criminal judicial process.
• The promoters of this theory believe that such victim involvement in
the process helps in repairing the harm caused by crime and
facilitates community reconciliation.
• According to this theory compensation is awarded to the victim from
the wrongdoer.
Continued
- By awarding compensation from the pocket of the wrongdoer he is
punished and is prevented from doing such offences in his remaining
life. This also becomes a lesson to the remaining people.
- The crime has been paid for by the punishment and accordingly the
slate is clean again. This principle of some sort of balance between
crime and punishment occurs in the doctrine of retribution and it is
often difficult to disentangle one concept from the other.
- Generally in other system of punishment , the victim is not taken into
consideration. The criminal justice system concentrates only on
punishing and reforming the criminals.
Development of Expiation theory
• The Courts are not in a position to point out the aggrievance of the
victim or his family members. ( Before 2009)
• They only have the aim to punish the criminals and in recent times to
reform them.
• Even the Criminologist, Penologists and even the sociologists,
psychologists focused less on this theory, but in the past few years a
separate branch of Criminology has developed, “Victimology” which
primarily focuses on the rights of victim.
• Most of the time a question is raised whether this theory is of tort or
of crime?
Continued
• According to the Victimologists the chain reactions of personal
revenges can be decreased in the society by awarding the
compensation to the victims from the property of the criminals.
• Economically too, the victims or his family members satisfy with the
money and can lead their remaining life safely.
• It also creates fear in the mind of the other criminal in the society.
• Today a portion of the criminologist, penologist, sociologist,
psychologist and jurist supports the compensation scheme of victim.
Indian position of Expiation or Victimology
• Sec 320 talks about compoundable offences where the parties
mutually can settle the dispute.
• Sec 357A has been introduced in the Criminal Procedure Code-1973
in 2009 which talks about victim compensation scheme,
• In 2013 357 B and 357 C have been introduced in the Criminal
Procedure Code-1973 which talks respectively about minimum 3
Lakhs compensation in acid attacks case by State Government in
addition to the amount which the victim has received from the
criminal.
• 357 C Free of cost treatment by Central, State of Local hospitals
immediately
Continued
• Amicus curie is one another example which courts in India follow.
• It means friend of court. There are lots of example where an offender
during the time of trial narrated the facts before court, to solve the
case.
• In such cases to court either reduce the term or some time even
forgive him as well, which depends upon the facts of the case.
• Though not strictly, but in case of divorce matter as well, the court
use to give Judicial separation for 6 months so that both the partners
should realize the importance of other one.
• This is the example of Civil Law and not of Criminal Law.
Critics about Expiation theory
• The idea that the element of expiation should deliberately enter
punishment is rejected by many.
• Sir Leo Page states that he believes it to be not only wrong but
actively mischievous.
• To do this would impose on court the duty to determine the degree
of pain preciously adequate to expiate moral guilt.
• This is patently impossible. Moreover, the theory of expiation rests
upon the premises that it is man’s duty to punish sin which is a legacy
from the times .
Continued
• The Italian Criminologist Enrico Ferry put criticized said that “The
question of moral guilt of criminal or of any other human being lies
within the domain and moral philosophy.”
• “The State and its system of criminal justice can do no more than
adopt such measures to defend the community against criminals as
are reasonable in themselves and proportionate to the danger
threatened to society.”
• They have mentioned that tis theory is good for small offences like
assault, battery, trespass in general but not in offences like murder,
rape or criminal trespass in the night.
Continued
• The rich people will get the license to commit the crime and get rid of
the punishment according to the principles of this theory.
• By using their money power, they may become the recidivist and can
escape from the punishment.
• By using this theory, the crimes can not be prevented though up to
the extent the monetary aspects of the victim may be sort out in
proportion.
• Therefore, it is not correct theory in the modern era, when people by
using electronic and technology.
Supreme Court on Expiation theory
• In Palampa Gondar vs State of Tamilnadu AIR 1977 SC 1323 , the Apex
Court said that it is the duty of the court to take into account the
nature of the crime, the injury suffered, the justness of the claim for
compensation, the capacity of the accused to pay and other relevant
circumstances in fixing the amount of fine or compensation.
• Rachhapal Singh v. State o f Punjab, AIR 2002 SC 2710 The Hon’ble
Supreme Court while upholding the principle held that, it is open to
the court under section 357 (3) of the Code, to award compensation
to the victim or his families. Thus, the courts can consider to grant the
amount to the victims.
Andhra High Court on State of A.P vs
Sayyaduddin 1996
• Sayyaduddin and his brother injured one Maleshuddin and he died in
the consequences.
• The Court punished both brothers for 3 years rigorous imprisonment
and awarded 60000 compensation to the victims.
• Justice Motilal Naik observed, “ by imposing the imprisonment on the
accused to the family members of the victim. It is better to help the
family members of the victim as there is no one who is left to look
after the family members.
• Therefore it is justified to impose penalty along with three years
imprisonment.
Preventive Theory
• As the name suggests that the preventive theory of punishment aims at preventing prospective crimes by
disabling the criminal.
• This idea of punishment is similar to that of the deterrent theory.
• The deterrence theory tries to put an end to the crime by causing fear of punishment and by setting an
example for the society.
• Whereas the preventive theory aims at preventing a crime by disabling the offender from committing any
prospective crimes.
• The main object of the Preventive theory is to disable the criminal either temporary or permanent like
banishment from a particular are, imprisonment for a term or even the Capital Punishment.
Continued
• All these punishment are prevalent today.
• Banishment of a person from a particular place for the time being
under preventive laws or even under the Prevention of Atrocitiesj Act-
1988 are the best example of that.
• Sec 144 of the Criminal Procedure Code-1973 is also outcome of the
Preventive theory.
• As mentioned in the case of Dr Jacob George v. State of Kerala, one
theory cannot be preferred over another, there should be independent
usage of each theory of punishment and should combined according to
the merits of the case
Introduction
• This theory is based upon the proverb , “ prevention is better than cure”.
• This theory says that to imprison all the criminals and keep them at a long
distance not connecting the society.
• Thus, the society can be prevented from the crimes.
• Peace will prevail in the society and prosperity can be achieved by picking
up the criminals and keeping them within four walls of the prison.
• State should take the precautionary steps to prevent the crimes and to
protect the society from criminal behaviour besides the punishing the
criminals after they do offences.
Continued
• Utilitarian’s such as Bentham, Mill and Austin of England supported the preventive theory of
punishment due to its humanizing nature.
• The profounder of the preventive theory stated that the objective of punishment is to prevent
offences, which can be done when the offender is checked by disablement.
• The disablement of the criminal may be limited or unlimited.
• It varies from person to person and it is bit difficult to say that this
theory is the answer to all the crimes.
Preventive Theory ( Protection theory)
• This theory is based upon the proverb “prevention is better than
cure”.
• It is always better to avoid the harm rather than curing it latter.
• Preventive means with the purpose of preventing something used or
devised to stop something from happening, or to stop people from
doing a particular thing.
• Preventive theory punishes the offenders, to prevent the future
crime in the society, by isolating the criminals from society.
• This theory believes that, the goal of punishment is restraint.
Continued
• If a criminal is confined, executed, or otherwise incapacitated, such
punishment will deny the criminal ability or opportunity to commit
further crimes and prevent the society from that harm.
• This theory seeks to prevent the recurrence of crime by incapacitating
the offenders.
• The supporters of this philosophy believe that imprisonment is the
best mode of punishment because it serves as an effective deterrent
and is a useful preventive measure too.
• It presupposes some kind of physical restraint of offenders.
Continued
• Peace will prevail in the society and prosperity can be achieved by
picking up the criminals and keeping them in the four walls of the
prison.
• This theory supports to impose rigorous imprisonment, capital
punishment, banishment, whipping stoning etc.
• This theory says that the State should take the precautionary steps to
prevent the crimes and to protect the society from criminal
behaviour.
• Famous Criminologist Fichte observes , “ the primary object of the
criminal justice system is to establish peace and crime less society
without using the sections of Penal Code repeatedly.”
Continued
• He has given the example that the land owners put a board
“trespassers will be prosecuted”.
• By this he does not want an actual trespasser and to have the trouble
and expenses of setting the law in motion against him ( trespasser).
• By this he will hope that the threat will render any such action
unnecessary , his aim is not to punish the trespasser but to prevent
him from entering into the premises.
• If trespass still takes place, he undertakes prosecution.
Supporter of this theory
• Bentham is the strong supporter of this theory because of its
humanizing influence on criminal law.
• He asserted that it is the certainty of law and not its severity which
has real effect on the criminals.
• According to him the real object of the criminal law, is to make the
threat generally rather than putting it occasionally into execution.
• It is effective to discourage anti-social conduct and a better
alternative to deterrent and retributive theories.
Indian position of Preventive theory
• Section 144 of the Criminal Procedure Code-1973 is the best example
of this theory. It prevents a group of more than 5 persons at a time.
• Curfew is also a good example of this.
• Section 41 of the Criminal Procedure Code-1973 permits police officer
to arrest offender without warrant.
• Section 152 of the Criminal Procedure Code-1973 permit to arrest a
person to maintain public peace.
• In Prevention of Atrocities Act-1988, banishment of a person with a
criminal record on person on certain occasion is another example.
Constitutional validity of preventive detention
In India
• Preventive detention is coming under the purview of clause 3 of
Article 22 of our constitution of India.
• The Constitution permits the Parliament and the State Legislature to
enact Preventive Detention Acts under Entry 9 of the Union List.
• The Parliament has power to pass laws relating to Preventive
Detention for reasons connected with defences, foreign affairs or the
security of India and also in respect of persons subjected to such
detention. Both the Parliament and the State Legislatures have under
Entry 3 of the Concurrent List power to pass laws.
Continued
• The State can pass the law in respect of the Preventive Detention for
reasons connected with the Security of State, the maintenance of
public order or the maintenance of supplies and services essential to
the community and persons subject to such detention.
• The protection is considered in the Constitution for Law and Order
issue and other issues connected as well.
• But under Article 22 of the Constitution a person can be arrested but
after following the procedure established by law.
• Preventive detention is considered valid under Article 22(3) of the
Constitution.
The Supreme Court on Preventive theory
• First time the constitutional validity of the Preventive Detention-1950
was challenged in the landmark case A.K. Gopalan vs Union of India
(AIR 1950 SC 27).
• Chief Justice Kanaia observed ,” Preventive detention in normal times,
i.e. without the existence of an emergency like war, is recognized as a
normal topic of legislation in List I, and List III”.
• But at the same time a person a can not be detained for more than 3
months under preventive detention. For that as per Article 22(4) of
the Constitution a permission from Advisory Board is essential.
Continued
• Ashok Kumar vs Delhi Administration (AIR 1982 SC 1143)
• In preventive detention, the act might affect on the liberty of the
individuals. The act by itself therefore is not determinant of its own
gravity.
• It is the potentiality of the act to disturb the even tempo of the life of
the community, which makes it prejudicial to the maintenance of
public order.
• Thus, the Supreme Court of the country has played a very important
role in the balancing between the individual liberty and the security
issue of Law and Order which is a vital element for the progress of the
society.
Criticism of the Preventive Theory
• The defects which are appliable to the deterrent theory are applicable to
the preventive theory as well.
• Afterall the aim of both theories are same.
• The additional drawback to the preventive theory , from the legislatures
point of view, under the whim of Law and Order issue they are curtailing
the liberty of the individual.
• ADM Jabalpur vs Shukla, which is the landmark case is the best example of
that.
• During the time of National Emergency how this concept was misutilised
we all know and that’s why 25h June 1975 is considered as black day.
Reformative Theory
• With the passage of time, developments in the field of Criminal
Science brought about a radical change in the Criminological thinking.
• According to this theory crime is like a disease and criminal is like a
patient.
• This theory strongly believes that the adamant and habitual criminal
can also be changed into law abiding citizens by reformation.
• This is a fresh approach towards the problem of crime and criminals.
Thus, according to this theory another possible goal of punishment is
reformation of the offender.
Introduction of Reformative theory
• Reformation is synonymous to the word ‘improvement’,
‘modification’, ‘transformation’, ‘alteration’, ‘change’, ‘development’,
‘amendment’.
• Reform means change and it improves somebody by correcting faults,
removing inconsistencies and abuses
• This theory imposes modern methods or values or to adopt a more
acceptable way of life and mode of behaviour or persuade or force
somebody else to do so.
• Reformation is the act or process of reforming somebody especially a
general improvement in his behaviour.
Philosophy of Reformative theory
• This theory considers the causes of crime like social, economical, physical
or psychological factors first and try to analyze the punishment based upon
that.
• This theory strongly believes that a criminal is a product of social and
economic circumstances. He is not a born criminal.
• The causing factors are within the society inherently, first these causes
should be removed then the crime rate will surely go down.
• The criminal is in the need of a doctor-cum-guide and not of the jailer.
• This theory says that the offender should not be punished but he should be
treated and converted into a law-abider citizen by giving training.
Continued
• He should be trained to rehabilitate in the society after completion of
his sentence.
• The aim of reformative theory is found in the poem of George
Bernard Shaw, which read as
• “If you are going to punish a man retributively - You must injure
him, I f you are to improve him - You must improve him, And men
are not improved by injuries.”
• This poem was quoted by Supreme Court in the case of Mohd.
Giasuddin v. State of AP, AIR 1977 SC 1926 .
Continued
• It is a social persuasion defences to extend whenever possible the key note
on modern penology, reformation of the delinquent.
• The probation is a part of the reformative process. Many offenders are not
criminals but circumstances made them criminals and through misfortunes
are brought within the operation of judicial system.
• By extending benefits of probation as per section 360 of the Criminal
Procedure Code, courts encouraged their own sense of responsibility of
future of the accused and saved him from the stigma and possible
development of criminal propensities. It is thus in tune with the
reformative trend of modem criminal justice to rehabilitate the young
offenders as usual citizens.
Origin of Reformative Theory
• This is the most recent theory which has spread all over the world
after 1945 after the adoption of Universal declaration of Human
Rights.
• The modern criminologist, penologists, psycho-analysists, sociologists
are in support of this theory.
• As against deterrent, retributive and preventive theories the
reformative approach to seek to bring about a change in the attitude
of offender so as to rehabilitate him as a law-abiding member of
society.
• Thus this punishment is used as a measure to reclaim the offender
and not to torture or harass him.
Continued
• This theory is not giving punishment on the seeing of the past but of
the future.
• It means the modern penologists are of the opinion that the
punishment is justiciable if it looks towards future and not only to the
past.
• The reformists advocates humanly treatment for the inmates inside
the prison so that they should get adjust with the society later on.
• Thus two most important element of this theory are I) the offender
should be treated humanly in the in the prison II) He should be
trained in the prison to maintain himself once he completes the
sentence under which has come to the prison.
The reformative theory practically
implementation
Evaluation of Reformative Theory
• Undoubtedly, modern penologists reaffirm their faith in reformative
justice but they strongly feel that it should not be stretched too far.
• The reformative method has proved useful in cases of the juvenile
delinquents and the first offenders.
• Harder criminals, however, do not respond favourable to the
reformist ideology. It, therefore, follows that punishment should not
be regarded as an end in itself but only a means.
• The end being the social security and rehabilitation of the offender in
the society.
Judiciary on Reformative Theory
• In Saradhakar Sahu v. State of Orissa, 1985 Cr LJ 1591 , the Supreme
Court, the reformative theory is in tune with reformative trend of
modern criminal justice to rehabilitate the young offenders as usual
citizens.
• In Mohd. Giasuddin v. State of AP, AIR 1977 SC 1926 , the Supreme
Court observed, the criminal can ordinarily be redeemed and the
State has to rehabilitate rather than avenge. The subculture that leads
to anti-social behaviour has to be countered not by cruelty but by re-
culturalisation. Therefore, the focus of interest in penology is the
individual, and the goal is salvaging him for society.
Continued
• Prakash v State of MP, 1993 Cr LJ 119 (MP) , the Madhya Pradesh
High Court, explained, “ criminal jurisprudence dealing with
imposition of sentence has undergone a change and the Probation of
Offenders Act-1958 is a milestone in the progress in the modern
liberal trend of reform in the field of penology.”
• It is the result of recognition of this doctrine that the object of the
criminal law has become more to reform than to punish the individual
offender.
• In Sunil Batras case as well the Supreme Court observed, “ the object
of the punishment is to correct the wrongdoer and not wrecking
vengeance on him.
The Executives on Reformative theory
• Central jail Superintendent of Hyderabad, C. H Ramkrishna in 2003
told the Press that out of 1000 prisoners, 282 come out of theft, 154
for murder, 105 for prohibition of liquor cases and 38 for assault and
majority of the criminals are from poor and middle class families.
• He opined that majority of the youth are young and if poverty is
removed the criminality will be decreased considerably.
• He also mentioned that habitual offenders who are majority thieves
are 25% and rest of the criminals are either first time offenders or the
young offenders.
After care programme
• One of the merit of the Reformative theory is it simply doesn’t speak about
theoretical aspects but the practically implemented by extending the
assistance to the criminals for his rehabilitation.
• To teach any profession in the prison is the first step. Vocational training
should be an integral part of it.
• To give all guidance's to the criminal from prison to establish his own
livelihood.
• To provide the financial assistances to the convict from the Government or
take help of the banks for that.
• These programme reduced the criminal behaviour of the accused and
provides a security upon him.
Criticism of Reformative Theory
• Many penologists have denounced “rehabilitative ideal” or the
“reformist ideology” which practically doesn’t work.
• Writing about the conditions of prison in France and Russia, Peter
Kropotkin, observed “prisons are seen as symbols of our hypocrisy
regarding rehabilitation”.
• A point of criticism on the Reformative theory is it thinks too much
about the criminals but what about the victims? After all the object
of the punishment is “Justice, deterrence and reformation”.
Reformative theory takes the step exact in opposite way.
Continued
• If the Reformative theory is applied fully and if the victims feel, that
there is no justice if we approach to the judiciary or police, they will
take the law into their own hands.
• A lenient approach towards punishment may not have any effect on
people in terms of dissuading them from committing crimes.
• The reformative theory is far too individualistic in approach without
taking into consideration the wider impact of the punitive scheme on
people at large in the society.
• Punishment is the highly subjective nature of individualized
punishments and the resulting inequality in sentencing the outcome.
Continued
• Today, everything has become materialistic. Because of increase in
population and the throat cut competition, human beings are more
aggressive and less sensitive towards others. ( mind is fickle and
because of science speed is an integral part of our life).
• The financial gap is increasing day by day and it leads to increase of
crime.
• Today, we have witnessed so many new offences which were not even
in existence before 20 years. Reformative theory doesn’t have any
answer to all these problems.
• If social problems are not serves any theory including reformative
theory don't have answer to this.
Final touch
• The aim of all the theories is punishment, however they explain the
punishment in their own approach.
• Each theory has its own merit and demerit. It is difficult to say that this
theory is better than other, as crime is not uniform, punishment can not be
either.
• The interest of social defense and individualization of punishment may be
combined rational sentencing process”.
• Taking approach of adopting one particular theory should not be correct
and which theory is suitable it should be decided from case to case.
• Afterall, the Reformative theory has mentioned crime as disease and for
any disease same treatment can not be provided.
The Beginning

•Thank You so much dear students for all the

motivation, co-operation and love you have
given to me…………………………..