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UNIT 1
Introduction:

In any study on any subject, it is necessary at the beginning to have a conception of the
subject with some sort of a definition so as to be able to do proper justice to the study.
Further, an analysis of the subject in an objective manner is also a necessity and hence, it has
been tried, in this chapter to look at crime to form a conception of it along with analysis of
various definitions put forth by various jurists, criminologists and sociologists to adopt a
definition found suitable for the study. The very first question that would arise in proceeding
with the study is - What is crime? This question has to be answered at the very outset It is
indeed a Herculean task to define crime. It has been always regarded as a matter of great
difficulty. R.C. Nigam says that to answer the question, as to what is crime, it is to be known
at first, what is Law, because these two questions are closely interrelated. Traditionally, it is
known that law is a command enjoining a course of conduct A crime may, therefore, be an act
of disobedience to such a law forbidding or commanding it. But then, sometimes,
disobedience of all laws may not be a crime, for instance, disobedience of civil laws.
Therefore, crime would mean something more than mere disobedience of a law.

Definition of crime:

The concept of crime involves the idea of a public as opposed to a private wrong with the
consequent intervention between the criminal and injured party by an agency representing the
community as whole. Crime is thus the international commission of an act deemed socially
harmful; or dangerous and the reason for making any given act a crime is the public injury
that would result from its frequent participation. The society therefore takes steps for its
prevention by prescribing specific punishments for each crime.

1. The word ‘crime’ is of origin viz; ‘Crimean’ which means ‘charge’ or ‘offence’ Crime is a
social fact.

2. The Waverly Encyclopaedia defines it as, “An act forbidden by law and for performing
which the perpetrator is liable to punishment”.
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3. James Anthony Froude (1818-94) wrote, “Crime is not punished as offence against God,
but as prejudicial to society”.

4. Sir John Hare (1844 - 1921) Explains, “Crimes sometimes shock us too much: Vices
always too little”.

5. Dr. Gillian J.L. points out, “More important is the feeling of danger to ourselves and our
property than the criminal–induces”.

Criminology perspectives:

As we have indicated, there are competing definitions of crime. This produces kinds of
responses to crime. Criminologists vary in how they approach the study of crime. For the
sake presentation, it is useful to present ideal types of the various theoretical strands within
criminology. Of course an ideal type does not exist in the real world, rather the intention
behind the construction of an ideal type is to obstruct exaggerate these elements in order to
highlight the general tendency or themes of a particular perspective. So, an ideal type is an
analytical tool, not a moral statement about what it ought to be. It refers to a process of
identifying different aspect of social phenomena and combining them into a typical model.

There are tree broad levels of criminology explanation;

a) Individuals
b) Situational
c) Social-structural

Different theories within criminology tend to locate their main explanation for criminal
behavior at one of these levels. Occasionally, a theory attempt to combine all three levels in
order to provide a more sophisticated and comprehensive picture of crime and criminality.

a) Individual; The main focus is on the personal or individual characteristics of the offender
or victim. The study may consider e.g. the influence of appearance, dress, public image or
things such as tattoos. This level of analysis tends to look at the psychological or
biological factorswhich are said to have an important role in determining why certain
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individuals engage in a criminal activity. The key concern is to explain crime or deviant
behavior in terms of the choices or characteristics of the individual person.
b) Situational; The main site of analysis is the immediate circumstances or situations within
which criminal activity or deviant behavior occurs. Attention is directed to the specific
factors that may contribute to an event occurring such as how the participants define the
situations, how different people are labeled by the others in the criminal justice system
and the opportunities avail for the commission of certain types of offences.
c) Social-structural; this approach tends to look at crime in terms of the broad social
relationships and the major social institutions of society as a whole. The analysis makes
references to the relationship between classes, sexes, different ethnic and racial groups,
the employed and unemployed; and various other social divisions in society. It can also
involve the investigation of the operation specific institutions such as indication, family,
work and the legal system in the construction of social responses to crime and deviant
behavior.

Clinard and Quincy in their Criminal Behaviour Systems: A Topology, 1967 have mentioned
the following six types of crime:

1. Violent Personal Crimes

2. Occasional Property Crimes
3. Occupational Crime
4. Political Crimes
5. Public Order Crimes
6. Conventional Crimes

Definition of Criminology:

"Criminology" is derived from the Latin crimen, which means accusation, and the
transliterated Greek logia, which has come to denote "the study of." Therefore, the term
literally means "the study of crime."

Criminology is a branch of sociology and has, in effect, been studied in one way or another
for thousands of years. Despite its long history, though, it has only been in recent years that
criminology has been recognized as a scientific discipline in its own right.
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Criminology is the scientific study of crime, including its causes, responses by law
enforcement, and methods of prevention. It is a sub-group of sociology, which is the
scientific study of social behaviour. There are many fields of study that are used in the field
of criminology, including biology, statistics, psychology, psychiatry, economics, and
anthropology.

Just as criminology is a sub-group of sociology, criminology itself has several sub-groups,

including:

• Penology: the study of prisons and prison systems

• Biocriminology: the study of the biological basis of criminal behaviour

• Feminist criminology: the study of women and crime

• Criminalistics: the study of crime detection.

Need for Criminal Study:

 Increase in the horrendous growth of crime

 Larger damage on the physiological and psychological conditions of the human
society
 Criminal can be redeemed, reculturisation of criminal behaviour
 Scientific analysis of the causes of crime
 Control of crime
 Identify the causes of crime, identification and analysis of basic components of
human behaviour.
 Criminology as a source of philosophy of life.

Importance of Criminology

a) It is important for the understanding of the individual and the best way to treat and
reform him/her.
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b) For lawyers; to allow them to better understand their client and their particular
circumstances for purposes of giving proper legal advice and pursuing a logical line of
defense.

c) For judicial officers to be able to understand the offender for the purpose of awarding
appropriate sentencing and also understand the society’s perspectives and emotions on a two-
given offence.

d) For law enforcement for purposes of investigation, prosecution, surveillance and

crime prevention.

e) For prison officers, social workers, psychologists, etc to understand the criminal better
or more.

f) To enhance official understanding of criminology, the types of offences, the

prevalence of offences committed generally or specifically by a class of people or in certain
localities. This kind of understanding is supported by the date which is important for crime
detection and control.

The government is based to plan better in terms of allocation of resources towards fighting
different types of crime.

g) For the vocational criminologist, he will also be concerned with research that will lead
to alternative theories that can lead to improving the immediate practices of the criminal
justice system, to bring about reform of some kind e.g. a program, an institution or strategy.
Often, the goal is to solve an administrative difficulty within the existing system.

h) For the critical or analytical strand of criminology, the research or study will be aimed
at making major changes within the existing institutional frameworks of the criminal justice
system. The approach looks into the deeper philosophical questions of the day and also the
bigger questions as to why do we continue to have and use institutions such as prisons when
we do not work to prevent offending or re-offending? The approach here is not to suggest
improvement, to the existing penal system; but to question whether it is valid or viable to
begin with. Indeed, on informed opinion might simply advocate. Both approaches are
however, relevant.
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Schools of Criminology:

It has been generally accepted that a systematic study of criminology was first taken up by
the Italian scholar, Ceasare Bonesana Marchese de Becaria (1938-94) who is known as the
founder of modern criminology. His greatest contribution to the science of criminology was
that he, for the first time, proceeded with the study of criminals on a scientific basis and
reached certain conclusions from which definite methods of handling crime and criminals
could be worked out. Thus the ‘theories of criminology’ or ‘the schools of criminology’ are of
a later origin.

Meaning of the ‘School of Criminology’:

Edwin Sutherland pointed out that a school of criminology connotes

“the system of thought which consists of an integrated theory of causation of crime and of
policies of control implied in the theory of causation”.

Therefore, a school of criminology implies the following three important points:

1. The adherents of each school try to explain the causation of crime and criminal behavior in
their own way relying on the theory propounded by the exponent of that particular school.

2. Each school of criminology suggests punishment and preventive measures to suit its
ideology.

3. And, each of the school represents the social attitude of people towards crime and criminal
in a given time.

In an attempt to find a rational explanation of crime, a large number of theories have been
propounded. Various factors such as evil spirit, sin, disease, heredity, economic
maladjustment etc. have been put forward either singly or together to explain criminality.
With the advance of behavioral sciences, monogenetic explanation of human conduct is no
longer valid and the modern trend is to adopt an eclectic view about the genesis of crime.
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However, some criminologists still tend to lay greater emphasis on physical traits in order to
justify exclusive resort to correctional methods for the treatment of offender.

Pre-Classical School of Criminology:

The period of seventeenth and eighteenth century in Europe was dominated by the
scholasticism of Saint Thomas Aquinas. The dominance of religion in State activities was the
chief characteristic of that time. In political sphere, thinkers such as Hobbes and Locke were
concentrating on social contract as the basis of social evolution. The concept of Divine right
of king advocating supremacy of monarch was held in great esteem. As scientific knowledge
was yet unknown the concept of crime was rather vague and obscure. There was a general
belief that man by nature is simple and his actions are controlled by some super power. It was
generally believed that a man commits crime due to the influence of some external spirit
called ‘demon’ or ‘devil’. Thus an offender commits a wrongful act not because of his own
free will but due to the influence of some external super power. No attempt was, however,
made to probe into the real causes of crime. This demonological theory of criminality
propounded by the exponents of pre-classical school acknowledged the omnipotence of spirit,
which they regarded as a great power.

The pre-classicals considered crime and criminals as an evidence of the fact that the
individual was possessed of devil or demon the only cure for which was testimony of the
effectiveness of the spirit. Worships, sacrifices and ordeals by water and fire were usually
prescribed to specify the spirit and relieve the victim from its evil influence. An ordeal is an
ancient manner of trial in criminal cases. When an offender pleaded “not guilty”, he might
choose whether he would put himself for trial upon God and the country, by 12 men or upon
God only, and then it was called ‘the judgment of God’, presuming that God would deliver
the innocent. Examples of such ordeals are, throwing into fire, throwing into water after tying
a stone to his neck, administration of oath by calling up God’s wrath, trial by battle, etc.

Trial by battle was common mode of deciding the fate of criminal. The oaths and ordeals
played a very important role in the ancient judicial system in determining the guilt of the
offender. The justification advanced for these rituals was the familiar belief that “when the
human agency fails, recourse to divine means of proof becomes most inevitable”. Though
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these practices appear to be most irrational and barbarous to the modern mind, they were
universally accepted and were in existence in most Christian countries till thirteenth century.
The Roman law completely ignored the system of ordeals and it was forbidden in Quran.

The right of society to punish the offender was, however, well recognized. The offender was
regarded as an innately depraved person who could be cured only by torture and pain. The
evolution of criminal law was yet at a rudimentary stage. Hobbes suggested that fear of
punishment at the hands of monarch was a sufficient deterrent for the members of early
society to keep them away from sinful acts which were synonymous to crimes. Thus the
theosophists, notably St. Thomas Aquinas and the social contract writers such as Donte
Alighieri, Machiavelli, Martin Luther and Jean Bodin provided immediate background for
Beccaria’s classical school at a later stage. The pre-classical thinking, however, withered
away with the lapse of time and advancement of knowledge.

The Classical School:

The Classical School in criminology is usually a reference to the eighteenth-century work

during the Enlightenment by the utilitarian and social contract philosophers Jeremy Bentham
and Cesare Beccaria. Their interests lay in the system of criminal justice and penology and,
indirectly through the proposition that "man is a calculating animal", in the causes of criminal
behaviour. The Classical school of thought was premised on the idea that people have free
will in making decisions, and that punishment can be a deterrent for crime, so long as the
punishment is proportional, fits the crime, and is carried out promptly.

Beccaria, the pioneer of modern criminology expounded his naturalistic theory of criminality
by rejecting the omnipotence of evil spirit. He laid greater emphasis on mental phenomenon
of the individual and attributed crime to ‘free will’ of the individual. Thus he was much
influenced by the utilitarian philosophy of his time which placed reliance on hedonism,
namely, the “pain and pleasure theory”. As Donald Taft rightly put it, this doctrine implied
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the notion of causation in terms of free choice to commit crime by rational man seeking
pleasure and avoiding pain.

Main Reforms Advocated by the Classical School:

The system of law, its mechanisms of enforcement and the forms of punishment used in the
eighteenth century were primitive and inconsistent. Judges were not professionally trained so
many of their decisions were unsatisfactory being the product of incompetence,
capriciousness, corruption or political manipulation. The use of torture to extract confessions
and a wide range of cruel punishments such as whipping, mutilation and public executions
were commonplace. A need for legal rationality and fairness was identified and found an
audience among the emerging middle classes whose economic interests lay in providing
better systems for supporting national and international trade.

John Locke

John Locke considered the mechanism that had allowed monarchies to become the primary
form of government. He concluded that monarchs had asserted the right to rule and enforced
it either through an exercise in raw power, or through a form of contract, e.g. the feudal
system had depended on the grants of estates in land as a return for services provided to the
sovereign. Locke proposed that all citizens are equal, and that there is an unwritten but
voluntary contract between the state and its citizens, giving power to those in government and
defining a framework of mutual rights and duties. In Leviathan, Thomas Hobbes wrote, "the
right of all sovereigns is derived from the consent of every one of those who are to be
governed." This is a shift from authoritarianism to an early model of European and North
American democracy where police powers and the system of punishment are means to a more
just end.

Cesare Beccaria (1738-1794)

In 1764, Beccaria published Dei Deliti e Delle Pene ("On Crimes and Punishments") arguing
for the need to reform the criminal justice system by referring not to the harm caused to the
victim, but to the harm caused to society. In this, he posited that the greatest deterrent was the
certainty of detection: the more swift and certain the punishment, the more effective it would
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be. It would also allow a less serious punishment to be effective if shame and an
acknowledgement of wrongdoing was a guaranteed response to society's judgment. Thus, the
prevention of crime was achieved through a proportional system that was clear and simple to
understand, and if the entire nation united in their own defence. His approach influenced the
codification movement which set sentencing tariffs to ensure equality of treatment among
offenders. Later, it was acknowledged that not all offenders are alike and greater sentencing
discretion was allowed to judges. Thus, punishment works at two levels. Because it punishes
individuals, it operates as a specific deterrence to those convicted not to reoffend. But the
publicity surrounding the trial and the judgment of society represented by the decision of a
jury of peers, offers a general example to the public of the consequences of committing a
crime. If they are afraid of similarly swift justice, they will not offend.

In his book "On Crimes and Punishments" Beccaria presented a coherent, comprehensive
design for an enlightened criminal justice system that was to serve the people rather than the
monarchy. According to Beccaria, the crime problem could be traced not to bad people but to
bad laws. A modern criminal justice system should guarantee all people equal treatment
before the law. Beccaria’s book supplied the blue print. That blue print was based on the
assumption that people freely choose what they do and are responsible for the consequences
of their behavior. Beccaria proposed the following principles:

Laws Should Be Used To Maintain Social Contract: “Laws are the conditions under which
men, naturally independent, united themselves in society. Weary of living in a continual state
of war, and of enjoying a liberty, which became a little value, from the uncertainty of its
duration, they sacrificed one part of it, to enjoy the rest in peace and security.”

Only Legislators Should Create Laws: “The authority of making penal laws can only reside
with the legislator, who represents the whole society united by the social compact.”

Judges Should Impose Punishment only in Accordance with the Law: “[N]o magistrate then,
(as he is one of the society), can, with justice inflict on any other member of the same society
punishment that is not ordained by the laws.”

Judges Should not Interpret the Laws: “Judges, in criminal cases, have no right to interpret
the penal laws, because they are not legislators….Everyman has his own particular point of
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view and, at different times, sees the same objects in very different lights. The spirit of the
laws will then be the result of the good or bad logic of the judge; and this will depend on his
good or bad digestion.”

Punishment Should be Based on the Pleasure/Pain Principle: “Pleasure and pain are the only
springs of actions in beings endowed with sensibility….If an equal punishment be ordained
for two crimes that injure society in different degrees, there is nothing to deter men from
committing the greater as often as it is attended with greater advantage.”

Punishment Should be Based on the Act, not on the Actor: “Crimes are only to be measured
by the injuries done to the society they err, therefore, who imagine that a crime is greater or
less according to the intention of the person by whom it is committed.”

The Punishment Should be Determined by the Crime: “If mathematical calculation could be
applied to the obscure and infinite combinations of human actions, there might be a
corresponding scale of punishment descending from the greatest to the least.”

Punishment Should be Prompt and Effective: “The more immediate after the commission of a
crime a punishment is inflicted the more just and useful it will be….An immediate
punishment is more useful; because the smaller the interval of time between the punishment
and the crime, the stronger and more lasting will be the association of the two ideas of crime
and punishment.”

All People Should be Treated Equally: “I assert that the punishment of a noble man should in
no wise differ from that of the lowest member of the society.”

Capital Punishment Should be Abolished: “The punishment of death is not authorized by any
right; for….no such right exists….The terrors of death make so slight an impression, that it
has not force enough to withstand forgetfulness natural to mankind.”

The Use of Torture to Gain Confessions Should be Abolished: “It is confounding all relations
to expect…that pain should be the test of truth, as if truth resided in the muscles and fibers a
wretch in torture. By this method the robust will escape, and the feeble be condemned.”
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It is Better to Prevent Crime than to Punish Them: “Would you prevent crimes? Let the laws
be clear and simple, let the entire force of the nation be united in their defence, let them be
intended rather to favour every individual than any particular classes…. Finally, the most
certain method of preventing crimes to perfect the system of education.”

Perhaps no other book in the history in the history of criminology has had so great an impact.
After the French Revolution, Beccaria’s basic tenets served as a guide for the drafting of the
French Penal Code, which was adopted in 1791.

Jeremy Bentham(1748-1832)

Legal scholars and reformers throughout Europe proclaimed their indebtedness to Beccaria,
but none owed more to him than the English legal philosopher Jeremy Bentham. Bentham
had long and productive career. He inspired many of his contemporaries, as well as
criminologists of future generations, with his approach to rational crime control.

Bentham devoted his life to developing a scientific approach to the making and breaking of
laws. Like Beccaria he was concerned with achieving “the greatest happiness of the greatest
number.” His work was governed by utilitarian principles. Utilitarianism assumes that all
human actions are calculated in accordance with their likelihood of bringing happiness
(pleasure) or unhappiness (pain). People weigh the probabilities of present future pleasures
against those of present and future pain.

Bentham proposed a precise pseudo-mathematical formula for this process, which he called
“felicific calculus.” According to his reasoning individuals are “human calculators” who out
all the factors into an equation in order to decide whether or not a particular crime is worth
committing. This notion may seem rather whimsical today, but at a time when there were
over 200 capital offences, it provided a rationale for reform of the legal system. Bentham
reasoned that if prevention was the purpose of punishment, and if punishment became too
costly by creating more harm than good, then penalties need to be set just a bit an excess of
the pleasure one might derive from committing a crime, and no higher. The law exists in
order to create happiness for the community. Since punishment creates unhappiness, it can be
justified only if it prevents a greater evil than it produces. Thus, Bentham suggested if a
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hanging a man’s effigy produced the same preventive effect as hanging the man himself there
would be no reason to hang the man.

In this context, the most relevant idea was known as the "felicitation principle", i.e. that
whatever is done should aim to give the greatest happiness to the largest possible number of
people in society. Bentham argued that there had been "punishment creep", i.e. that the
severity of punishments had slowly increased so that the death penalty was then imposed for
more than two hundred offences in England (Landau, Norma, 2002). For example, if rape and
homicide were both punished by death, then a rapist would be more likely to kill the victim
(as a witness) to reduce the risk of arrest.

Bentham posited that man is a calculating animal who will weigh potential gains against the
pain likely to be imposed. If the pain outweighs the gains, he will be deterred and this
produces maximal social utility. Therefore, in a rational system, the punishment system must
be graduated so that the punishment more closely matches the crime. Punishment is not
retribution or revenge because that is morally deficient: the hangman is paying the murder the
compliment of imitation.

But the concept is problematic because it depends on two critical assumptions:

if deterrence is going to work, the potential offender must always act rationally whereas much
crime is a spontaneous reaction to a situation or opportunity; and

if the system graduates a scale of punishment according to the seriousness of the offence, it is
assuming that the more serious the harm likely to be caused, the more the criminal has to
gain.

In this context, note Bentham's proposal for a prison design called the "panopticon" which,
apart from its surveillance system included the right of the prison manager to use the
prisoners as contract labour.

Spiritualistic understandings of crime stem from an understanding of life in general, that finds
most things in life are destiny and cannot be controlled, we are born male or female, good or
bad and all our actions are decided by a higher being. People have held such beliefs for all of
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recorded history, “primitive people regarded natural disasters such as famines, floods and
plagues as punishments for wrongs they had done to the spiritual powers” (Vold, G. Bernard,
T. and Snipes, J. 1998). These spiritual powers gained strength during the middle ages as they
bonded with the feudal powers to create the criminal justice systems. Under a spiritualistic
criminal justice system, crime was a private affair that was conducted between the offender
and the victim’s family. However this method proved to be too revengeful, as the state took
control of punishment. Spiritual explanations provided an understanding of crime when there
was no other way of explaining crime. However, the problem with this understanding is it
cannot be proven true, and so it was never accepted.

The main tenets of classical school of criminology why noted below

1. Man’s emergence from the State’s religious fanaticism involved the application of his
reason as a responsible individual.

2. It is the ‘act’ of an individual and ‘not his intent’ which forms the basis for determining
criminality within him. In other words, criminologists are concerned with the ‘act’ of the
criminal rather than his ‘intent’. Still, they could never think that there could be something
like crime causation.

3. The classical writers accepted punishment as a principal method of infliction of pain,

humiliation and disgrace to create ‘fear’ in man to control his behaviour.

3. The propounders of this school, however, considered prevention of crime more important
than the punishment for it. They therefore, stressed on the need for a Criminal Code in
France, Germany and Italy to systematize punishment for forbidden acts. Thus the real
contribution of classical school of criminology lies in the fact that it underlined the need for a
well-defined criminal justice system.

4. The advocates of classical school supported the right of the State to punish the offenders in
the interest of public security. Relying on the hedonistic principle of pain and pleasure, they
pointed out that individualization was to be awarded keeping in view the pleasure derived by
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the criminal from the crime and the pain caused to the victim from it. They, however, pleaded
for equalization of justice which meant equal punishment for the same offence.

5. The exponents of classical school further believed that the criminal law primarily rests on
positive sanctions. They were against the use of arbitrary powers of Judges. In their opinion
the Judges should limit their verdicts strictly within the confines of law. They also abhorred
torturous punishments.

Thus, classical school propounded by Beccaria came into existence as a result of the
influence of writings of Montesquieu, Hume, Bacon and Rousseau. His famous work ‘Essays
on Crime and Punishment’ received wide acclamation all over Europe and gave a fillip to a
new criminological thinking in the contemporary west. He sought to humanize the criminal
law by insisting on natural rights of human beings. He raised his voice against severe
punishment, torture and death penalty. Beccaria’s views on crime and punishment were also
supported by Voltaire as a result of which a number of European countries redrafted their
penal codes mitigating the rigorous barbaric punishments and some of them even went to the
extent of abolishing capital punishment from their Penal Codes.

Major Shortcomings of the Classical School:

The contribution of classical school to the development of rationalized criminological

thinking was by no means less important, but it had its own pitfalls.

The classical school proceeded on an abstract presumption of free will and relied solely on
the act (i.e., the crime) without devoting any attention to the state of mind of the criminal.

It erred in prescribing equal punishment for same offence thus making no distinction between
first offenders and habitual criminals and varying degrees of gravity of the offence.

However, the greatest achievement of this school of criminology lies in the fact that it
suggested a substantial criminal policy which was easy to administer without resort to the
imposition of arbitrary punishment. It goes to the credit of Beccaria who denounced the
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earlier concepts of crime and criminals which were based on religious fallacies and myths
and shifted emphasis on the need for concentrating on the personality of an offender in order
to determine his guilt and punishment. Beccaria’s views provided a background for the
subsequent criminologists to come out with a rationalized theory of crime causation which
eventually led the foundation of the modern criminology and penology.

Neo-Classical School:

In criminology, the Neo-Classical School continues the traditions of the Classical School
within the framework of Right Realism. Hence, the utilitarianism of Jeremy Bentham and
Cesare Beccaria remains a relevant social philosophy in policy term for using punishment as
a deterrent through law enforcement, the courts, and imprisonment

The ‘free will’ theory of classical school did not survive for long. It was soon realized that the
exponents of classical school faultered in their approach in ignoring the individual differences
under certain situations and treating first offenders and the habitual alike on the basis of
similarity of act or crime. The neo-classists asserted that certain categories of offenders such
as minors, idiots, insane or incompetent had to be treated leniently in matters of punishment
irrespective of the similarity of their criminal act because these persons were incapable of
appreciating the difference between right and wrong. This tendency of neo-classists to
distinguish criminals according to their mental depravity was indeed a progressive step
inasmuch as it emphasized the need for modifying the classical view. Thus the contribution of
neo-classical thought to the science of criminology has its own merits.

When crime and recidivism are perceived to be a problem, the first political reaction is to call
for increased policing, stiffer penalties, and increased monitoring and surveillance for those
released on parole. Intuitively, politicians see a correlation between the certainty and severity
of punishment, and the choice whether to commit crime. The practical intention has always
been to deter and, if that failed, to keep society safer for the longest possible period of time
by locking the habitual offenders away in prisons (see Wilson). From the earliest theorists,
the arguments were based on morality and social utility, and it was not until comparatively
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recently that there has been empirical research to determine whether punishment is an
effective deterrent.

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

1.Neo-classists approached the study of criminology on scientific lines by recognizing that

certain extenuating situations or mental disorders deprive a person of his normal capacity to
control his conduct. Thus they justified mitigation of equal punishment in cases of certain
psychopathic offenders. Commenting on this point, Prof. Gillin observed that neo-classists
represent a reaction against the severity of classical view of equal punishment for the same
offence.

2. Neo-classists were the first in point of time to bring out a distinction between the first
offenders and the recidivists. They supported individualization of offender a treatment
methods which required the punishment to suit the psychopathic circumstances of the
accused. Thus although the ‘act’ or the ‘crime’ still remained the sole determining factor for
adjudging criminality without any regard to the intent, yet the neo-classical school focused at
least some attention on mental causation indirectly.

3. The advocates of this school started with the basic assumption that man acting on reason
and intelligence is a self-determining person and therefore, is responsible for his conduct.
But those lacking normal intelligence or having some mental depravity are irresponsible to
their conduct as they do not possess the capacity of distinguishing between good or bad and
therefore should be treated differently from the responsible offenders.

4. Though the neo-classists recommended lenient treatment for “irresponsible” or mentally

depraved criminals on account of their incapacity to resist criminal tendency but they
certainly believed that all criminals, whether responsible or irresponsible, must be kept
segregated from the society.

5. It is significant to note that distinction between responsibility and irresponsibility, that is

the sanity and insanity of the criminals as suggested by neo-classical school of criminology
paved way to subsequent formulation of different correctional institutions such as parole,
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probation, reformatories, open-air camps etc. in the administration of criminal justice. This is
through this school that attention of criminologists was drawn for the first time towards the
fact that all crimes do have a cause. It must, however be noted that though this causation was
initially confined to psychopathy or psychology but was later expanded further and finally the
positivists succeeded in establishing reasonable relationship between crime and environment
of the criminal.

6. Neo-classists adopted subjective approach to criminology and concentrated their attention

on the conditions under which an individual commits crime.

Thus it would be seen that the main contribution of neo-classical school of criminology lies
in the fact that it came out with certain concessions in the ‘free will’ theory of classical school
and suggested that an individual might commit criminal acts due to certain extenuating
circumstances which should be duly taken into consideration at the time of awarding
punishment. Therefore, besides the criminal act as such, the personality of the criminal as a
whole, namely, his antecedents, motives, previous life-history, general character, etc., should
not be lost sight of in assessing his guilt. It may be noted that the origin of jury system in
criminal jurisprudence is essentially an outcome of the reaction of neo-classical approach
towards the treatment of offenders.

As to the shortcomings of neo-classical school of criminology, it must be stated that the

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

Positivist School of criminology or Italian School of Criminology (Itabau Positive School):

The prominent philosophers of this school are:

 Cesare Lombroso
 Raffaele Garofalo
 Enrico Ferri
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The positivist school opposed the classical school’s understanding of crime. All people are
different, and thus vary in their understanding of right and wrong; this needed to be a
barometer for punishment. The person and not the crime should be punished.

Positivism saw its role as the systematic elimination of the free will metaphysics of the
classical school—and its replacement by a science of society, taking on for itself the task of
the eradication of crime, Ian Taylor, Paul Walton and Jock Young wrote in The New
Criminology: For a Social Theory of Deviance. This new, deterministic movement was
consolidated by Enrico Ferri, who championed the approach then being employed by an
Italian military physician, Cesare Lombroso.

The positive method consisted of carefully observing the characteristics of criminals to gain
insight into the causes of antisocial conduct or behavior. Ferri did not endorse all of
Lombroso’s conclusions, such as that some people are born criminals and that some physical
features, like the shape of a person’s head or the placement of one’s cheekbones, can predict
criminal behavior. However, Ferri adopted the inductive method and set out to create a
science that would explain the causes of crime within society and the individual offender.

The school started by considering crime a product of heredity and environment. Instead of
criminal conduct, criminal behavior became the focus. Environmental factors such as societal
conditions and pressures interact with hereditary factors in a person to cause that individual to
be predisposed to criminal acts. The deterministic school was more concerned with the actual
or would-be criminal rather than criminal conduct.

Positivism’s focus on the individual may have been the greatest contribution to criminology
and the criminal justice system. It led to classifications of offenders, such as habitual
criminals, as well as categories between insanity and sanity. It also led to the use of
psychology in studying offenders, opening the way for different kinds of sentences and
treatments that fit the criminal and not the crime.

Cesare Lombroso was an Italian physician who changed the approach to crime from a
legalistic to a scientific one.
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He disagreed with the classical studies that crime was a characteristic trait of human nature,
and argued that criminality is inherited and that criminals can be identified by their
physiognomy.

He made a clear distinction between criminals and noncriminals on the base of multiple
physical anomalies. It all started when he autopsied the body of Giuseppe Villela – infamous
Italian criminal.

While studying Villela’s skull, he noticed that it had some characteristics that reminded
Lombroso of the skulls of “inferior races” and “the lower types of apes, rodents, and birds.”

Relying on the theories about physiognomy, degeneration theory, psychiatry and Social
Darwinism, Lombroso based his theory on atavism, explaining that criminal appears in
organisms in a way that it resembles ancestral (prehuman) forms of life.

Hence, he called criminals modern “savages.” He argued that the physical characteristics of
criminals were reminiscent of apes, lower primates, and early humans.

According to Lombroso, criminals cannot easily adapt to the morals, rules, and laws of the
modern civilized society because their “nature” ,which is a result of an evolutionary
throwback (atavism), is more naturally demonstrated through “primitive or savage acts”,
contradictory to those of the modern men.

Sociological theory of crime:

A trend in bourgeois criminal law that originated in the late 19th and early 20th centuries. The
views of the adherents of the sociological school are often eclectic and seem to be a
compromise between the classical and anthropological schools of criminal law. The
sociological school deals with problems of crime and punishment (classical trend) and the
personality of the criminal (anthropological trend). With regard to the criminal personality
and the causes of crime, the sociological school, recognizing not only biological but also
societal explanations for human behavior, subscribes to the theory advanced by E. Ferri, a
follower of C. Lombroso, that a variety of factors contribute to criminal behavior. Many
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sociological criminologists have maintained that criminality depends on biological factors

(including heredity), physical factors (season, climate, time of day), and societal factors.

Sociological criminologists believed that the science of criminal law encompasses criminal
law in the narrow sense (formulation of law), criminology, and the measures adopted by a
society to prevent crime. Some felt that the science should also include penology—the study
of the treatment of offenders. The most prominent representatives of the sociological school
of criminal law during its formative period included F. von List and G. Aschaffenburg
(Germany), C. Stooss (Austria), G. Tarde and J. Lacassagne (France), A. Prins (Belgium), G.
van Hamel (Netherlands), and I. Ia. Foinitskii, Chubinskii, and S. V. Poz-nyshev (Russia).

Today, the influence of the sociological school is appreciable, especially in the United States.
The school has given rise to a number of theories about the causes of crime and the methods
of crime prevention. According to one theory, technological progress is to be regarded as an
all-embracing cause of criminality. (This view provided the basis for the Fourth UN Congress
on the Prevention of Crime and the Treatment of Offenders, held in Japan in 1970.)
Adherents of this view analyze only the superficial causes of crime, ignoring the real causes,
which are rooted in the socioeconomic basis of an exploitative regime.

There are several variants of the sociological school of criminal law. The theory of
differential association of E. Sutherland, for example, regards crime as an age-old
phenomenon resulting from contact within small groups. The representatives of the theory of
social disorganization (R. Quinney, J. Pinatel, E. Schur, R. Clark, T. Sellin, D. Taft) proceed
from the assumption that crime results from anomie, that is, a breakdown in the power of
social norms to regulate men’s actions, both with regard to the immediate environment and
the society as a whole; they see “culture conflict” as the cause of crime (sociocultural theory).
The theory that crime is to be accounted for by a multiplicity of factors (Guerry, Stanius)
distinguishes two groups of criminogenic factors. The first relates to personality and takes
into consideration heredity, race, sex, age, psychological makeup, ability to deal with others,
and mental faculties. The second group pertains to a person’s surroundings and takes into
consideration social disorganization, urbanization, family, education, immediate environment,
and use of free time
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Sociological theories focus on the social situation or environment as a cause of crime.

Chicago-school researchers concluded that social disorganization causes crime.

Edwin Sutherland developed differential association theory, which claims that crime is
learned.

Ronald Akers contends that crime is learned according to the principles of operant
conditioning.

Robert Merton’s strain theory of delinquency was influenced by French sociologist Emile
Durkheim’s theory of anomie or “normlessness.”

Travis Hirschi’s social control theory explores why most people do not commit crimes.

Gresham Sykes and David Matza developed neutralization theory to describe how offenders
deflect feelings of blame and shame.

Edwin Lemert helped develop labeling theory, which contends that people commit deviant
behavior because they consider themselves “outsiders” and attempt to live up to that label.

Elements of Crime:

The main criminal laws in India include the Indian Penal Code, Indian Evidence Act and
Criminal Procedure Code. People often refer to these three as general laws. Apart from these
three laws, we also have other laws that relate to specific kinds of offences.

For example, the Prevention of Money Laundering Act deals with particular financial crimes.
Even other laws that do not specifically regulate crimes, like the Companies Act, contain
some offences and penalties.

The most important thing common in all these laws is that they contain certain basic
elements. The following are four basic elements of crime:

 Accused person
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 Mens rea
 Actus reus
 Injury

1. Accused person

No crime can ever occur out of thin air because that would simply be an accident. In order to
constitute a crime, it is important for somebody to commit it. The law should always be able
to pinpoint the person who is responsible for committing an offence.

The term accused “person” does not suggest that only a human being can commit offences.
According to Section 11 of IPC, the term “person” also includes a company and an
association or body of persons. Therefore, even a trust, an NGO and a public company can
commit offences.

Furthermore, certain offences can implicate more than one person for the same crime. In such
cases, all persons will face trial and may have to face punishment together.

2. Mens rea

A mere person will never commit a crime unless he possesses some intention to commit it.
The law generally refers to this intention as mens rea, which means “guilty mind” in Latin.

The term mens rea has been derived from a famous Latin maxim: Actus non factit reum nesi
mens sit rea. This basically means that an act cannot be guilty if it does not accompany a
guilty mind.

The element of mens rea itself comprises of certain inherent elements. These include
intention, motive or knowledge. Which of these elements must exist in order to constitute an
offence generally depends on the relevant provision?

For example, Section 300 of IPC contains various kinds of acts which amount to the offence
of murder. These acts may include an act done with the “intention” of causing bodily injury
sufficient to cause death.
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Furthermore, it also includes an act of which the offender has “knowledge” of it being
imminently dangerous. Therefore. we need to look at the relevant provisions to understand
what kind of intention is necessary.

Crimes in the absence of mens rea:

Although mens rea is an essential element of crime, some offences can occur without it. For
example, Section 304-A of IPC makes death by negligence a criminal offence. In such cases,
a “negligent act” would not include the intention to cause death. However, negligence or
mistake itself is sufficient to constitute a crime.

3. Actus reus

Merely possessing a guilty mind and thinking of committing a crime is not enough. The
accused person must also act on that intention and do something in its furtherance. Actus reus
basically refers to an act or omission which leads to the completion of an offence. Both mens
rea, as well as actus reus, together are important to create an offence.

Actus reus can be a positive act, such as stabbing a person to cause his death. It can also be an
omission (failure) to perform an action. For example, driving a vehicle without a driving
license is an omission.

4. Injury

The last of the basic elements of crime is an injury. There can be no crime if no person faces
some kind of an injury. According to Section 44 of IPC, “injury” means any harm caused to a
person illegally either in mind, body, reputation or property.

Distinguish Crime from Non-Crime:

A Criminal behaviour must satisfy the following conditions:

1. A definite harm must have been caused.

2. The harm must have been outlawed.
3. The harm should have been caused by intentional or reckless conduct.
4. Criminal intent
5. There must be concurrence of mens rea and conduct.
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6. There must be a legally prescribed punishment.

An act to become a crime should have the following two cardinal principles of criminal
liability:

1. Nullum crimen sine poena (No crime without punishment)

2. Nulla poena sine lege (No punishment without law)

Classification of Crime:

1. Crime against person

a. Heinous Crime (murder)
b. Non-Heinous Crime (grievous injury, hurt)
2. Crime against property (theft)
3. Crime against state (waging war)
4. Crime against public decency, public order, public justice (unlawful assembly)
5. Economic Crimes – White-Collar Crimes (Black Marketing, Tax-Evasion)
6. Marginal Crimes, Victimless Crimes (begging, homo-sexuality)
7. Super Crimes (terrorism, communal violence)
8. Modern Crimes (computer crimes, nuclear theft)

Crime Statistics:

Crime Statistics is an important and essential input for assessing quality of lifeand the human
rights situation in the society. Crime Statistics broadly reflects thestatus of operations of
Criminal Justice System in a Country. Crime Statisticsincludes data on Offences - Breaches
of the law Offenders - Those who commitoffences Victims - Those who are offended against
In India Crime statistics aregenerated on the basis of crime records maintained by different
law enforcingagencies like the Police, the Judiciary at different level of
administrative/legaljurisdiction under the federative system of India. These statistics are
normally readilyavailable and are generally used for assessing how crime is being dealt with
by lawenforcement organisations, However, these statistics being based on those caseswhich
are generally reported to the law enforcement agencies and recordedthrough all stages of
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action on the cases reported. 'Crime Statistics' in India gives anincomplete picture of crime
situations in the country. The deficiency is not particularto India, as some studies have shown
that even data collected by British CrimeStatistics provides a picture of 30% of the actual
crime in the country.

Source of Crime Statistics:

National Crime Records Bureau(NCRB) is the nodal agency at the centre to collect, compile
and disseminate theinformation related with crime. “Crime in India”, an annual compilation
of NCRB, isbeing published since 1953. For this publication, the information in
standardizedformats is being collected from all the 35 States/UTs as well as from 35 mega
cities.

Procedure for Collection of Crime Statistics:

The flow of information starts from the Police stations wherein the cognizable offence is
reported in the form of First Information Report (FIR).FIR sets the process of Criminal
Justice in motion. The information thereafter flows from District Crime Record Bureaus to
State Crime Record Bureau and the same is finally consolidated by National Crime Records
Bureau

Genesis of National Crime Records Bureau:

Setting up of National Crime Records Bureau was recommended by the National Police
Commission set up in 1977. Accepting the recommendations, the Ministry of Home Affairs
constituted a Task Force in 1985 to work out the modalities for setting up of the National
Crime Records Bureau (NCRB). The Government accepted the recommendations of the Task
Force and constituted the NCRB with headquarters at New Delhi in January, 1986. The
objectives of the Bureau are :

i. To function as a clearing house of information on crime and criminals including

those operating at National and International levels so as to assists the
investigators, and others in linking crimes to their perpetrators.
ii. ii. To store, coordinate and disseminate information on inter-state and
international criminals from and to respective States, national investigating
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agencies, courts and prosecutors in India without having to refer to the Police
Station records.
iii. iii. To collect and process crime statistics at the National level.

The various crimes that are being recorded, can be grouped under the following categories for
statistical information purposes:

i)Crimes against body: Murder, Attempt to commit murder, Culpable homicide not amounting
to murder,Kidnapping& Abduction, Hurt,Causing death by negligence;

ii) Crimes against property: Dacoity, Preparation and assembly to commit Dacoity, Robbery,
Burglary and Theft;

iii) Crimes against public order: Riots and Arson;

iv) Economic crimes: Criminal breach of trust, Cheating & Counterfeiting;

v) Crimes against women: Rape, Dowry death, Cruelty by husband or his relatives, Assault
on women with intent to outrage her modesty, Insult to the modesty of women and
Importation of girl from foreign country;

vi) Crimes against children: Child rape, Kidnapping & abduction of children, Procuration of
minor girls, Selling and buying of girls for prostitution, Abetment of suicide, Exposure and
Abandonment, Infanticide and foeticide;

vii) Other IPC crimes.

Crimes under the Special and Local Laws (SLL)

i) Arms Act, 1959; ii) Narcotic Drugs & Psychotropic Substances Act, 1985; iii) Gambling
Act, 1867; iv) Excise Act, 1944; v) Prohibition Act; vi) Explosives & Explosive Substances
Act, 1884 & 1908; vii) Immoral Traffic (Prevention) Act, 1956; viii) Indian Railways Act,
1989; ix) The Foreigners Act, 1946; x) Protection of Civil Rights Act, 1955; xi) Passport Act,
1967; xii) Essential Commodities Act, 1955; xiii) Antiquities & Art Treasures Act, 1972; xiv)
Dowry Prohibition Act, 1961; xv) Prohibition of Child Marriage Act 2006; xvi) Indecent
Representation of Women (Prohibition) Act, 1986; xvii) Copyright Act, 1957; xiii)
Commission of Sati Prevention Act, 1987; xix) SC/ST (Prevention of Atrocities) Act, 1989;
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xx) Forest Act, 1927; xxi) Other crimes (not specified above) under Special and Local Laws
including Cyber Laws under Information Technology Act (IT), 2000.

Internationally, data on crime& drugs is maintained by United NationsOffice of Drugs and

Crime (UNODC) . UNODC collects data on crime and theoperation of criminal justice
systems in order to make policy-relevant information andanalysis available in a timely
manner to the international community. UNODC workson the development of standards for
national crime and criminal justice informationsystems and for the conduct of victimization
surveys. The office also aims toenhance the cross-national comparability of data through the
development of keyindicators and data reporting tools. Periodic reports of UNODC on
selected crimeissues provide in-depth analysis on key topics of concern at the global and
regionallevel.

Recognizing the importance of Crime Statistics, UNODC in cooperation with United Nations
Statistical Division launched the Eleventh United Nations survey of Crime Trends and the
Operations of Criminal Justice Systems (11th UN-CTS) for the period 2007-08. The major
goal of the survey was to collect the data on incidence of reported crimes and operations of
criminal justice system. India has also participated in the survey. The survey results provide
an overview of trends and interrelationships between various parts of the criminal justice
system to promote informed decision-making in administration, nationally and
internationally. Data collection through the CTS is conducted on an annual basis. The First &
Second UNCTS was conducted during 1970-80.

The information maintained by UNODC includes:

• Statistics on Crime: Homicide, assaults sexual violence, robbery, kidnapping, theft burglary,
drug related crime.

• Statistics on Drug Use.

• Statistics on Criminal Justice: Persons prosecuted, convicted, detained, Criminal Justice

system resources etc.
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UNIT 2
CRIME CAUSATION

There is no one ‘cause’ of crime. Crime is a highlycomplex phenomenon that changes across
culturesand across time. Activities that are legal in onecountry (e.g. alcohol consumption in
the UK) aresometimes illegal in others (e.g. strict Muslimcountries). As cultures change over
time, behavioursthat once were not criminalised may becomecriminalised (and then
decriminalised again – e.g.alcohol prohibition in the USA). As a result, there is nosimple
answer to the question ‘what is crime?’ and therefore no single answer to‘what causes crime?’
Different types of crime often have their own distinct causes. The criminogenic factors can be
mainly divided into two forms:

 Individual Centric Causes

 Society Centric Causes

Individual Centric Causes

 Physical type, Criminoid, Criminal Atavism, Phrenology

 Intelligence and mental deficiency, Feeble-mindedness
 Heredity
 XYZ Chromosomal abnormality
 Endocrine disorder, Endocrinology
 Sex
 Opportunity, Poverty
 Alcohol, Drug etc
 Psychology
 Age
 Physical Environment
 Race
 Epilepsy
 Bonger’s theory
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Society Centric Causes

 Social Disorganization
 Mobility
 Theory of Differential Association
 Anomie
 Labelling
 Gang Delinquency
 Family
 Neighbourhood
 Religion
 Education
 Mass Media
 Economic condition
 War and immigration
 Politics
 Police-Population

THE JUVENILE JUSTICE CARE AND PROTECTION ACT, 2000

Reasons for enacting this act -

WHEREAS the Constitution has, in several provisions, including clause (3) of article 15,
clauses (e) and (f) of article 39, articles 45 and 47, impose on the State a primary
responsibility of ensuring that all the needs of children are met and that their basic human
rights are fully protected;

AND WHEREAS, the General Assembly of the United Nations has adopted the Convention
on the Rights of the Child on the 20th November, 1989;

AND WHEREAS, the Convention on the Rights of the Child has prescribed a set of
standards to be adhered to by all State parties in securing the best interests of the child;
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AND WHEREAS, the Convention on the Rights of the Child emphasizes social reintegration
of child victims, to the extent possible, without resorting to judicial proceedings;

AND WHEREAS, the Government of India has ratified the Convention on the 11th
December, 1992.

AND WHEREAS, it is expedient to re-enact the existing law relating to juveniles bearing in
mind the standards prescribed in the Convention on the Rights of the Child, the United
Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the
Beijing rules), the United Nations Rules for the Protection of Juveniles Deprived of their
Liberty (1990), and all other relevant international instruments.

Constitution Provisions:

Art 15(3) - State can make any special provision for women and children.

Art 39 (e) - It shall be the duty of the state to ensure that the health and strength of workers,
men and women, and the tender age of children are not abused and that citizens are not forced
by economic necessity to enter avocations unsuited to their age or strength;

Art 39 (f) - It shall be the duty of the state to ensure that children are given opportunities and
facilities to develop in a healthy manner and in conditions of freedom and dignity and that
childhood and youth are protected against exploitation andagainst moral and material
abandonment.

Art 45/Now Art 21A - The State shall endeavour to provide, within a period of ten years from
the commencement of this Constitution, for free and compulsory education for all children
until they complete the age of fourteen years.

Art 47 - The State shall regard the raising of the level of nutrition and the standard of living
of its people and the improvement of public health as among its primary duties and, in
particular, the State shall endeavor to bring about prohibition of the consumption except for
medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
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Art 51(k) - It shall be the duty of the citizen of India who is a parent or guardian to provide
opportunities for education to his child or, as the case may be, ward between the age of six
and fourteen years.

Child in need of care and protection

As per Section 2(d), "child in need of care and protection" means a child -

1. who is found without any home or settled place or abode and without any ostensible
means of subsistence,

2. who resides with a person (whether a guardian of the child or not) and such person
has threatened to kill or injure the child and there is a reasonable likelihood of the threat
being carried out, or has killed, abused or neglected some other child or children and there is
a reasonable likelihood of the child in question being killed, abused or neglected by that
person,

3. who is mentally or physically challenged or ill children or children suffering from

terminal diseases or incurable diseases having no one to support or look after,

4. who has a parent or guardian and such parent or guardian is unfit or incapacitated to
exercise control over the child,

5. who does not have parent and no one is willing to take care of or whose parents have
abandoned him or who is missing and run away child and whose parents cannot be found
after reasonable inquiry,

6. who is being or is likely to be grossly abused, tortured or exploited for the purpose of
sexual abuse or illegal acts,

7. who is found vulnerable and is likely to be inducted into drug abuse or trafficking,

8. who is being or is likely to be abused for unconscionable gains,

9. who is victim of any armed conflict, civil commotion or natural calamity;

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Neglected Child:

The term neglected child has been removed from the current JJA and has been replaced with
"Child in need of care and protection" defined above. The old act defines "neglected juvenile"
as a juvenile who-

(i) is found begging; or

(ii) is found without having any home or settled place of abode and without any ostensible
means of subsistence and is destitute;

(iii) has a parent or guardian who is unfit or incapacitated to exercise control over the
juvenile; or

(iv) lives in a brothel or with a prostitute or frequently goes to any place used for the purpose
of prostitution, or is found to associate with any prostitute or any other person who leads an
immoral, drunken or depraved life;

(v) who is being or is likely to be abused or exploited for immoral or illegal purposes or
unconscionable gain;

Section 2(k) - "juvenile" or "child" means a person who has not completed eighteenth year of
age;

Section 2(l) - "juvenile in conflict with law" means a juvenile who is alleged to have
committed an offence;

Section 2(b) - "Begging" means -

i. soliciting or receiving alms in a public place or entering into any private premises for the
purpose of soliciting or receiving alms, whether under any pretence;

ii. exposing or exhibiting with the object of obtaining or extorting alms, any sore, wound,
injury, deformity or disease, whether of himself orof any other person or of an animal;

Composition and Procedure followed by Juvenile Justice Court:

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Composition

As per Section 4

(1) The State Government may constitute for a district or a group of districts specified in the
notification, one or more Juvenile Justice Boards for exercising the powers and discharging
the duties conferred or imposed on such Boards in relation to juveniles in conflict with law
under this act.

(2) A Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of the first
class, as the case may be, and two social workers of whom at least one shall be a woman,
forming a Bench and every such Bench shall have the powers conferred by the Code of
Criminal Procedure, on a Metropolitan Magistrate or, as the case may be, a Judicial
Magistrate of the first class and the Magistrate on the Board shall be designated as the
principal Magistrate.

(3) No Magistrate shall be appointed as a member of the Board unless he has special
knowledge or training in child psychology or child welfare and no social worker shall be
appointed as a member of the Board unless he has been actively involved in health,
education, or welfare activities pertaining to children for at least seven years.

(4) The term of office of the members of the Board and the manner in which such member
may resign shall be such as may be prescribed.

(5) The appointment of any member of the Board may be terminated after holding inquiry, by
the State Government, if -

i. he has been found guilty of misuse of power vested under this act,

ii. he has been convicted of an offence involving moral turpitude, and such conviction has not
been reversed or he has not been granted full pardon in respect of such offence,

iii. he fails to attend the proceedings of the Board for consecutive three months without any
valid reason or he fails to attend less than three fourth of the sittings in a year.
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Section 5 – Procedure:

(1) The Board shall meet at such times and shall, observe such rules of procedure in regard to
the transaction of business at its meetings, as may be prescribed.

(2) A child in conflict with law may be produced before an individual member of the Board,
when the Board is not sitting.

(3) A Board may act notwithstanding the absence of any member of the Board, and no order
made by the Board shall be invalid by reason only of the absence of any member during any
stage of proceedings: Provided that there shall be at least two members including the
principal Magistrate present at the time of final disposal of the case.

(4) In the event of any difference of opinion among the members of the Board in the interim
or final disposition, the opinion of the majority shall prevail, but where there is no such
majority, the opinion of the principal Magistrate, shall prevail.

Section 6 - Powers of the Board:

(1) Where a Board has been constituted for any district or a group of districts, such Board
shall, have power to deal exclusively with all proceedings under this Act, relating to juvenile
in conflict with law.

(2) The powers conferred on the Board by or under this Act may also be exercised by the
High Court and the Court of Session, when the proceedings comes before them in appeal,
revision or otherwise.

Orders that can be passed for delinquent children

Section 15 - Orders that may be passed regarding a Juvenile

1. Where a Board is satisfied on inquiry that a juvenile has committed an offence, then
notwithstanding anything to the contrary contained in any other law for the time being in
force, the Board may, if it thinks so fit,-
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(a) allow the juvenile to go home after advice or admonition following appropriate inquiry
against and counseling to the parent or the guardian and the juvenile;

(b) direct the juvenile to participate in group counseling and similar activities;

(c) order the juvenile to perform community service;

(d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen
years of age and earns money;

(e) direct the juvenile to be released on probation of good conduct and placed under the care
of any parent, guardian or other fit person, on such parent, guardian or other fit person
executing a bond, with or without surety, as the Board may require, for the good behavior and
well-being of the juvenile for any period not exceeding three years;

(f) direct the juvenile to be released on probation of good conduct and placed under the care
of any fit institution for the good behavior and well-being of the juvenile for any period not
exceeding three years;

(g) make an order directing the juvenile to be sent to a special home,-

i. in the case of juvenile, over seventeen years but less than eighteen years of age for a period
of not less than two years;

ii. in case of any other juvenile for the period until he ceases to be a juvenile :

Provided that the Board may, if it is satisfied that having regard to the nature of the offence
and the circumstances of the case it is expedient so to do, for reasons to be recorded, reduce
the period of stay to such period as it thinks fit.

2. The Board shall obtain the social investigation report on juvenile either through a
probation officer or a recognized voluntary organization or otherwise, and shall take into
consideration the findings of such report before passing an order.

3. Where an order under clause (d), clause (e) or clause (f) of sub-section (1) is made, the
Board may, if it is of opinion that in the interests of the juvenile and of the public, it is
expedient so to do, in addition make an order that the juvenile in conflict with law shall
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remain under the supervision of a probation officer named in the order during such period,
not exceeding three years as may be specified therein, and may in such supervision order
impose such conditions as it deems necessary for the due supervision of the juvenile in
conflict with law .

Provided that if at any time afterwards it appears to the Board on receiving a report from the
probation officer or otherwise, that the juvenile in conflict with law has not been of good
behavior during the period of supervision or that the fit institution under whose care the
juvenile was placed is no longer able or willing to ensure the good behaviour and well-being
of the juvenile it may, after making such inquiry as it deems fit, order the juvenile in conflict
with law to be sent to a special home.

The Board shall while making a supervision order under sub-section (3), explain to the
juvenile and the parent, guardian or other fit person or fit institution, as the case may be,
under whose care the juvenile has been placed, the terms and conditions of the order shall
forthwith furnish one copy of the supervision order to the juvenile, the parent, guardian or
other fit person or fit institution, as the case may be, the sureties, if any, and the probation
officer.

In case of Municipal Corporation of Delhi vs Rattanlal, 1971, it was held that while
allowing the release of a juvenile, the court should consider the following - circumstances of
the case, circumstances of the accused, age, and family background.

Section 16 :Orders that may not be passed against a Juvenile

(1) Notwithstanding anything to the contrary contained in any other law for the time being in
force, no juvenile in conflict with law shall be sentenced to death or life imprisonment, or
committed to prison in default of payment of fine or in default of furnishingsecurity :

Provided that where a juvenile who has attained the age of sixteen years has committed an
offence and the Board is satisfied that the offence committed is of so serious in nature or that
his conduct and behavior have been such that it would not be in his interest or in the interest
of other juvenile in a special home to send him to such special home and that none of the
other measures provided under this Act is suitable or sufficient, the Board may order the
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juvenile in conflict with lawto be kept in such place of safety and in such manner as it thinks
fit and shall report the case for the order of the State Government.

(2) On receipt of a report from a Board under sub-section (1), the State Government may
make such arrangement in respect of the juvenile as it deems proper and may order such
juvenile to be kept under protective custody at such place and on such conditions as it thinks
fit:

Provided that the period of detention so ordered shall not exceed the maximum period of
imprisonment to which the juvenile could have been sentenced for the offence committed.

In RejeshKheton vs State of W B, 1983, it was observed that the main object of the
provision contained in Section 16 of the act is to prevent the juvenile from the contact of
hardened criminals so that they are saved from contamination.

In Sheela Barse vs UOI , AIR 1986, it was held that juveniles should not be held in jail but
in Shelter Homes.

Constitution of a child welfare committee in a district

Inquiry – Section 33

Children’s Home – Sec34(1)

Observation Home - Section 8

Special Home - Section 9

Bail to Juvenile - Section 12

Protections given by the legislature and the judiciary to juvenile delinquents

Protection by Legislature - The legislature has enacted several laws for the protection of
Juveniles. Most important among them is Juvenile Justice (Care and Protection) Act, 2000.

Legal Protection
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Through Juvenile Justice (Care and Protection) Act, 2000, several measures have been
adopted to ensure that a juvenile is not punished or treated like hardened criminals. Some of
the measures are -

1. Hearing of cases involving juvenile by Juvenile Justice Board

2. Bail Provisions for juvenile

3. No prison term to juvenile.

4. No joint proceeding of Juvenile and Non Juvenile

5. Removal of disqualification attached to conviction

Social Protection

Juvenile Justice Act also contains measures to ensure that a juvenile in conflict of law is
given opportunities to reform.

1. Establishment of Observation and Special Home

2. Education and Training facilities

Preventive Measures

1. Several acts such as employment of juveniles in dangerous activities, forcing

juveniles to beg, or steal, or giving intoxicating substances to a juvenile, publication of names
or other details of a juvenile in conflict of law in media, have been made cognizable offences
by JJA.

2. Supervision by Probation Officer to ensure that a juvenile is not influenced by bad

elements.

Several other acts such as Factories Act, 1948 include provisions for protection of Juveniles.

Constitutional Provisions

Article 21A - Right to education

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Article 24 Prohibition of employment of children in factories, etc. No child below the age of
fourteen years shall be employed to work in any factory or mine or engaged in any other
hazardous employment.

Article 39 provides that that children are given opportunities and facilities to develop in a
healthy manner and in conditions of freedom and dignity and that childhood and youth are
protected against exploitation and against moral and material abandonment.

Article 45 Provision for free and compulsory education for children

Protections given by Judiciary

Judiciary has always been very sympathetic to the cause of Juveniles. Even before
appropriate laws were enacted, Judiciary promoted directives for the protection of juveniles
through its judgement. For example, it was the judiciary, which emphasized on Education for
children by making it a fundamental right under Article 21.

Preventive and Curative programmes for Juvenile Delinquency:

 Correctional and Rehabilitation Centres

 Identification of Political delinquency
 Moral Education
 Counteracting delinquent propensities
 Community programmes

Case laws:

Raghubir vs State of Haryana

Satto Vs Satte of U.P
Munna and others Vs State of U.P
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Sunil Kumar Vs State

Jeyachandra and another Vs State of U.P
UNIT 3
TYPES OF CRIME
White collar crimes:
White-collar crime is relatively a new idea. It has been present in courtyards for quite a long
time but the idea may still be ambiguous for some. Lawyers and law practitioners continue
their dispute regarding the grounds and scope for white-collar crimes. It has many aspects
that are viable for scrutiny and further interpretation to clear some of its grey areas.
White-collar crime was defined by Edwin Sutherland as a “crime committed by a person of
respectability and high social status in the course of his occupation.” Since this term was
coined by Sutherland in 1939 during his speech for American Sociological Society, debates
have risen as to what particular crimes will be considered as white-collar crimes. In general,
and ambiguous terms, non-violent crimes for financial gain were considered to be under this
category. Some of the most common activities under white collar crimes include antitrust
violations, different types of fraud (computer and Internet, credit card, bankruptcy, mail,
financial and healthcare frauds), insider trading and environmental law violations. Powers of
the members of the government, through another means of checks and balances, are also
limited by including public corruption and money laundering under white-collar crimes as
well.

In the modern judicial systems, common sanctions given to white-collar crimes offenders
include house arrest, fines and financial penalties, sentences of up to 30 years, and offenders
of economic crimes can be sentenced as much as that of offenders for violent street crime.
The sentencing guidelines are particularly applied by computing the effects or loss caused by
the fraudulent acts.

Despite the continuous development of the concept of white-collar crimes, no consensus has
been made about a criminology theory that explains white-collar crimes. Experts of the
sociology, legal, and criminology areas have clashing theories.

Blue-Collar Crime

Blue-collar crimes are crimes committed by people who are from a lower social class. Learn
more about blue-collar crimes from examples and test your knowledge with a quiz.

Blue-collar crime is a term used to describe crimes that are committed primarily by people
who are from a lower social class. This is in contrast to white-collar crime, which refers to
crime that is usually committed by people from a higher social class.So, where does the term
'blue collar' come from? The phrase 'blue collar' was coined in the 1920s to refer to American
workers who perform manual labor jobs. These jobs are very messy, so the workers would
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wear dark clothing in order to minimize the appearance of stains. Many also wore uniforms
or shirts that were usually blue, hence the term 'blue collar.' Blue-collar workers include
janitors, construction workers, millwrights, and production laborers.

Most blue-collar workers are paid a low hourly wage, though the pay varies greatly
depending upon the specific occupation and the worker's level of skill. In contrast, white-
collar workers generally have higher paying jobs that do not involve manual labor. White-
collar workers tend to work in an office setting; therefore, they are able to wear 'white collars'
without fear of getting them dirty. White-collar workers include accountants, business
managers, lawyers, and doctors.

Legal Classification

Blue-collar crime is not a formal legal classification of crime. It's an informal term that is
used to describe certain types of crimes. Blue-collar crimes are those that are most commonly
committed by people who are from a lower social class, such as blue-collar workers. Blue-
collar workers may not have access to the same resources as white-collar workers, so they
tend to commit crimes that are immediate and personal in nature, such as robbery, rather than
crimes that involve elaborate planning.

This is not to say that white-collar workers don't commit blue-collar crimes. Rather, it's just
that the people that commit the majority of these crimes are from a lower social class.

Examples of blue-collar crimes include:

 Armed robbery
 Murder and other violent crimes
 Sexual assault
 Burglary and theft
 Breaking and entering
 Drug abuse

Causes of White-Collar Crime:

The general perception is that the white-collar crimes are committed because of greed or
economic instability. But these crimes are also committed because of situational pressure or
the inherent characteristic of getting more than others. However, there are various reasons for
white collar crimes.

 Not really a crime: Some offenders convince themselves that the actions performed by
them are not crimes as the acts involved does not resemble street crimes.
 Not realizable: Some people justify themselves in committing crimes as they feel that
the government regulations do not understand the practical problems of competing in
the free enterprise system.
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 Lack of awareness: One of the main reasons of white-collar crime is the lack of
awareness of people. The nature of the crime is different from the traditional crimes
and people rarely understand it though they are the worst victims of crime.
 Greed: Greed is another motivation of the commission of crime. Some people think
that others are also violating the laws and so it is not bad if they will do the same.
 Necessity: Necessity is another factor of committing crimes. People commit white
collar crimes in order to satisfy their ego or support their family.

Elements of white collar crimes:

The main elements of white collar crimes are:

 It involves violation of legal codes.

 It takes place directly or indirectly in connection with a legitimate occupation.
 It aims as gaining money.
 The crime is not against a specific individual or a firm but is against society at large.
There istherefore, no specific victim who would complain.
 Earlier on a “person of high status” committing this crime was considered (white
collar)criminal but now a „person of any class violating law (different from one who
commits an immoral or unethical act) in the course of occupational activity‟ is
described as anoccupational offender.
 The person involved in white collar crimes which involves high stakes but carries the
mostnegligible danger of detection and identification. Further, it is most negligible
crime againstwhich the victims are least likely to fight.
 The offender does not regard himself as a criminal but considers himself a law
breaker whoseact has no victim.
 The persons involved in illegal occupational activities adopt a policy of fixing cases.
It is notonly the law enforcement officers are fixed up but the services of politicians,
bureaucrats andinfluential People are also used for „protection‟.
 The effect of this crime is much more serious for society than an ordinary crime.

Cases

State of Gujrat V/s Mohanlal JitamaljiPorwal&Anr. -Supreme Court has differentiated

betweenthe general crimes and white-collar crimes. Justice Thakkar had stated that murder
can becommitted in the heat of moment but these economic offences are committed with a
coolcalculation and planned strategy to gain personal profits.

Types Of White-Collar Crimes

TYPE OF WHITE COLLAR CRIMES

1. Bank Fraud: Bank fraud means to engage in such activities in order to defraud to bank or

using illegal means to obtain assets held by financial institutions.

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2. Blackmail: Blackmail means demand for money by threating some person to cause
physical

injury or exposing his secrets.

3. Embezzlement: When someone entrusted with money or property uses it for his own, it is

embezzlement.

4. Bribery: Bribery means offering money, goods or any gift to someone in order to have
control

over his actions. It is a crime whether someone offers or accepts a bribe.

5. Tax fraud: Tax fraud means evading tax by providing wrong information in tax forms or

illegally transferring property in order to avoid tax.

6. Money Laundering: It means the concealment of origin of illegally obtained money.

7. Insider Trading: When someone uses the confidential information to trade in shares of
publicly held corporation.

Professional White-Collar Criminality:

Medical Profession: white collar crimes which are commonly committed by persons
belonging tomedical profession include issuance of false medical certificates, helping illegal
abortion, secretservice to doctors by giving experts opinion leading to their acquittal and
selling sample drug andmedicines to patients or chemists in India.

Engineering: In the engineering profession underhand dealing with contractors and

suppliers,passing of sub-standard works and material and maintenance of bogus records of
work changedlabour are some of the common examples of white-collar crimes.

Legal profession: The instances of fabricating false evidence, engaging professional witness,
engaging professional witness, violating ethical standards of legal profession and dilatory
tacticsin collusion with the ministerial staff of the courts are some of the common practices
which are,

truly speaking, the white-collar crimes quite often practiced by some legal practitioners.

Educational Institutions: White collar criminals operate with impunity are the privately-
runeducational institutions in this country. The governing bodies of those institutions manage
tosecure large sums by way of government grants of financial aid by submitting fictitious and
fakedetails about their institutions. Also collecting substantial sums in the name of uniform,
books,donation etc. apart from the usual heavy fees they collect.
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Computer related white collar crimes: The developments in information technology

andelectronic media have given rise to a new variety of computer related white collar crimes
which iscommonly called cybercrimes. The wide spread growth of these crimes has become a
matter ofglobal concern and a challenge for the law enforcement agencies in the new
millennium, becauseof the peculiar nature of these crimes, they can be committed
anonymously and far away from thevictim, without being physically present there.

Further, cybercriminals have a major advantage, they can use computer technology to
inflictdamage without the risk of being caught the cybercrimes over a wide range of illegal
computerrelated activities which include offences such as theft of communication services,
industrialespionage, dissemination of pornographic and sexually offensive material in
cyberspace,electronic money laundering and tax evasion, electronic vandalism, terrorism and
extortiontelemarketing frauds, illegal interception of telemarketing frauds, illegal interception
oftelecommunication etc. presently, viruses are the most common problems which are
causingserious damage to computer systems. There are now more than 5000 different strains
virusesacross the globe. There are some common cyber offences which are directed against
computersystems, networks or data.

Implications of White-Collar Crimes:

 Financial Loss to the public

 Social Damage to morale and institutions
 Privileged class deviance
 Trade Union deviance

The changing dynamic of white-collar crime in India:

The Santhanam committee report for thefirst time attached great importance to the emergency
of offences and mal practices known as“white collar crimes”, which was also acknowledged
by the 29th Law Commission report in 1972.

The Santhanam Committee report recognized the emergency of mass Society with
smallcontrolling elite, encouraging growth of monopolies and the deviance from ethical
behaviourwhich led to growth of white collar and economic crimes. The report expressed its
concerntowards such crimes by opinion that this crime was more dangerous, not only because
thefinancial stakes were higher but also they caused irreparable damage to public morals.
Theawareness of the common man towards these crimes is dismal or there is a relatively
unorganizedresentment of the public towards such crimes as the violations in such cases can
be appreciatedonly by experts, secondly due to the complexity of these crimes they cannot be
easily presented asnews and probably because these agencies of communication are owned
by businessmaninvolved in the violations of many of these laws, white collar crimes, it is
stated goes undetectedbecause it transcends. The visibility of ordinary cheating practices of
small merchants. It canhowever, be gathered from reports of investigating committees or
from conversation withintimate friends.
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Another fact that merits serious attention is that white collar crimes being a characteristic of
acquisitive and affluent society, they do not exists in India on the scale on which it exists
inEngland and America, but is not totally absent. The Indian society is by no means affluent,
but itis gradually becoming acquisitive particularly in the urban areas. Corruption of
administrativeofficers, embezzlement by top officials of MNC‟S and corporations, evasion of
tax (particularly ofincome tax) by person who fall in the higher income group, smuggling of
goods which are scarcein the our country (such as gold watches and gold biscuites, gun,
rifals, pistol etc.) and deliberatebreach of foreign exchange regulations, may be cited as
instances of white collar crimes in ourcountry.

As the human race progress, every aspect of the society gets upgraded and developed, even
theunfathomable greed of an individual from times immorial man also is an animal, has
aspired formore power and wealth zealously though all scrupulous and unscrupulous means.
It is an era ofaffluent crimes where a CEO sitting in his AC chambers breaches the fiduciary
relationshipbetween his company and clients by misappropriating certain information or
embezzling thepublic money. This person is vividly different from our traditional blue collar
criminal, as he isintellectual and is bestowed upon by God with all the material comforts,
despite which he daresto commit an act which can have starting consequences which may
vary from the downfall of theeconomy to the commission of suicides by his shareholder.

According to a new report by EY, between 2004 and 2016, the serious fraud investigation
officewas asked to probe 469 cases, of which 184 companies were alone probed in 2015-16.
The reporttitled “The changing dynamics of white collar crimes in India shows that over the
past 10 years,the central bureau of investigation (CBI) has prepared 6,533 corruption cases,
of which 517 havecome up in the past two years.

Further, an estimated Rs.4,000/- crore of trading is carried out on the BSE using fake or
duplicatePAN Cards and online fraud is on the rise with Maharashtra reporting 999 cases.
India‟s share inblack money concealed across global tax havens is estimated to be $181
billion and the situation isgrim.

On its part, the government has launched several initiatives to tackle fraud, bribery,
corruptionand other white collar crimes. Recent data suggest that some forms of crime night
havemoderated of late.

In 2015, India ranked 76th on Transparency International‟s Corruption Perception Index

(CPI), upfrom 85th in 2014. This improvement in ranking mirrors the fall in corruption
complaint‟s receivedaccordingly to the report, the number of corruption complaint received
by the chief vigilancecommissioner declined from 64,000/- in 2014 to 29,838 in 2015. But,
despite this improvement,India ranks lower on CPI.Perceptions over the extent of corruption
in India also seem to have improved in 2016, 58% ofsurvey respondents felt that bribery and
corruption are ongoing challenges in India-down from70 in 2012. The global average for
2016 is 39%.

Laws relating to White Collar Crimes

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The government of India has introduced various regulatory legislations, the breach of which
will amount to white-collar criminality. Some of these legislations are Essential Commodities
Act 1955, the Industrial (Development and Regulation) Act, 1951., The Import and Exports
(Control) Act, 1947, the Foreign Exchange (Regulation) Act, 1974, Companies Act, 1956,
Prevention of Money Laundering Act, 2002.

The Indian Penal Code contains provisions to check crimes such as Bank Fraud, Insurance
fraud, credit card fraud etc. In case of money laundering several steps have been taken by the
government of India to tackle this problem. The Reserve Bank of India has issued directions
to be strictly followed by the banks under KYC (Know Your Customer) guidelines. The
banks and financial institutions are required to maintain the records of transactions for a
period of ten years.

In order to tackle with computer-related crimes, Information Technology Act, 2000 has been
enacted to provide legal recognition to the authentication of information exchanged in respect
of commercial transactions.

Section 43 and 44 of Information Technology Act prescribes the penalty for the following
offences:

 Unauthorised copying of an extract from any data.

 Unauthorised access and downloading files.
 Introduction of viruses or malicious programmes.
 Damage to computer system or computer network.
 Denial of access to an authorised person to a computer system.

Providing assistance to any person to facilitate unauthorised access to a computer.

Though the focus of Information Technology Act is not on cybercrime as such, this Act has
certain provisions that deal with white collar crimes. Chapter XI deals with the offence of
cybercrime and chapter IX deals with penalties and adjudication of crime. Apart from this,
many issues are unresolved due to lack of focus. Some of them are:

 Inapplicability
 Qualification for appointment as adjudicating officer not prescribed
 Definition of hacking
 No steps to curb internet piracy
 Lack of international cooperation
 Power of police to enter and search limited to public places
 Absence of guidelines for investigation of cyber crime.

Thegovernment of India has introduced various regulatory legislation, the breach of which
willamount to white collar criminality. Some of these legislations are Essential Commodities
Act 1955,the Industrial (development and regulation) Act, 1951.

 Central Excise and Salt Act, 1944

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 Companies Act, 1956.

 Drugs and Customs Act, 1940

 Emblems and Names (Prevention of improper use) Act, 1950

 Essential Commodities Act, 1955

 Foreign Corrupt practice Act, Foreign exchange regulation, forward contracts (regulation
act,

1952)

 Immoral Traffic (prevention) Act, 1956

 Income Tax Act 1961

 Narcotic Drugs & Psychotropic Substance Act, 1985

 Prevention of Corruption Act, 1988

 Prevention of Food Adulteration Act, 1954

 The Anti-corruption Laws (Amendment) Act, 1961

 The Anti-corruption Laws (Amendment) Act, 1967

 The Central Vigilance Commission Act, 2003

 The Custom Act, 1962

 The Import and Exports Control Act 1947

 The Foreign Exchange Management Act, 1991

 Companies Act, 1956

 Prevention of Money Laundering Act, 2002

There are some measures to deal with white-collar crimes. Some of them are, creating public
awareness of crimes through media or press and other audio-visual aids and legal literacy
programmes. Special tribunals should be constituted with power to sentence the offenders for
at least 5 years and conviction should result in heavy fines rather than arrest and detention of
criminals. Unless the people will strongly detest such crimes, it is not possible to control this
growing menace.
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It is clear that due to advancement of science and technology newer form of criminality
known as white-collar crime has arisen. The term “white-collar crime” has not been defined
in the code. But the dimensions of white-collar crime are so wide that after analysing the
provisions of Indian Penal Code 1860, we may conclude that certain offence under Indian
Penal Code is closely linked with white collar crimes such as bribery, corruption and
adulteration of food, forgery etc. The provisions of Indian Penal Code dealing with white-
collar crimes should be amended to enhance punishment particularly fine in tune with
changed socio-economic conditions. The special Acts dealing with white collar crimes and
the provisions of Indian Penal Code should be harmoniously interpreted to control the
problem of white-collar crimes.

Case law:

 MurlidharMeghrajLoya and another vs State of Maharasthra

 State of Haranya Vs Yad Ram
 Som Prakash Vs State of Delhi
 State of U.P Vs G.K.Gosh
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Crime and Women:

Dowry Prohibition Act:

Dowry Prohibition Act, Indian law, enacted on July 1, 1961, intended to prevent the giving or
receiving of a dowry. Under the Dowry Prohibition Act, dowry includes property, goods, or
money given by either party to the marriage, by the parents of either party, or by anyone else
in connection with the marriage. The Dowry Prohibition Act applies to persons of all
religions in India.

The original text of the Dowry Prohibition Act was widely judged to be ineffective in curbing
the practice of dowry. Moreover, specific forms of violence against women continued to be
linked to a failure to meet dowry demands. As a result, the legislation underwent subsequent
amendment. In 1984, for example, it was changed to specify that presents given to a bride or
a groom at the time of a wedding are allowed. The law required, however, that a list be
maintained describing each gift, its value, the identity of the person giving it, and the person’s
relation to either party to the marriage. The act and relevant sections of the Indian Penal Code
were further amended to protect female victims of dowry-related violence. Another layer of
legal protection was provided in 2005 under the Protection of Women from Domestic
Violence Act.

Definition of ‘dowry’. -

In this Act, “dowry” means any property or valuable security given or agreed to be given
either directly or indirectly.

(a) By one party to a marriage to the other party to the marriage, or

(b) By the parent of either party to a marriage or by any other person, , to either party to
the marriage or to any other person, at or before or any time after the marriagein
connection with the marriage of the said parties, but does not include dower or mahr in
the case of persons to whom the Muslim Personal Law (Shariat) applies.
(c) The word ‘dowry’ should be any property or valuable given or agreed to be given in
connection with the marriage. The customary payments in connection with birth of
child or other ceremonies are not involved within ambit of dowry; Satbir Singh v.
State of Punjab, AIR 2001 SC 2828.
(d) “Dowry” in the sense of the expression contemplated by Dowry Prohibition Act is a
demand for property of valuable security having an inextricable nexus with the
marriage, i.e., it is a consideration from the side of the bride’s parents or relatives to
the groom or his parents and/or guardian for the agreement to wed the bride-to-be. But
where the demand for property or valuable security has no connection with the
consideration for the marriage, it will not amount to a demand for dowry; Arjun
DhondibaKamble v. State of Maharashtra, 1995 AIHC 273.
(e) Any property given by parents of the bride need not be in consideration of the
marriage, it can even be in connection with the marriage and would constitute dowry;
Rajeev v. Ram Kishan Jaiswal, 1994 Cri LJ NOC 255.
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(f) The definition of dowry is wide enough to include all sorts of properties, valuable
securities, etc., given or agreed to be given directly or indirectly;
VemuriVenkateswara Rao v. State of Andhra Pradesh, 1992 Cri LJ 563 AP HC.
(g) There had been no agreement between either parties to give any property or valuable
security to the other party at or before or after the marriage. The demand of T.V.,
refrigerator, gas connection, cash of Rs. 50,000 and 15 tolas of gold are not demand of
dowry but demand of valuable security in view of section 2; Shankar Prasad Shaw v.
State, I (1992) DMC 30 Cal.
(h) While dowry signifies presents given in connection with marriage to the bridal couple
as well as others, Stridhan is confined to property given to or meant for the bride;
Hakam Singh v. State of Punjab, (1990) 1 DMC 343.
(i) Dowry, means, any property given or agreed to be given by the parents of a party to
the marriage at the time of the marriage or before marriage or at any time after the
marriage in connection with the marriage. So, where the husband had demanded a sum
of Rs. 50,000 some days after the marriage from his father-in-law and on not being
given became angry, tortured the wife and threatened to go for another marriage, it
was held that the amount was being demanded in connection with the marriage and it
was a demand for dowry though it was demanded after the marriage; Y.K. Bansal v.
Anju, All LJ 914.
(j) The furnishing of a list of ornaments and other household articles such as refrigerator,
furniture, electrical appliances, etc., at the time of the settlement of the marriage
amounts to demand of dowry within the meaning of section 2 of the Dowry
Prohibition Act, 1961; Madhu Sudan Malhotra v. K.C. Bhandari, 1988 BLJR 360
(SC).
(k) A sum of money paid by a Mohemmadan in connection with his daughter’s marriage
to prospective bridegroom for the purchase of a piece of land in the joint name of his
daughter and would-be son-in-law is not ‘dowry’ within the meaning of the Act;
Kunju Moideen v. Syed Mohamed, AIR 1986 Ker 48.
(l) Where the demand was made after the marriage for the purchase of a car, it was held
that it did not fall within the definition; Nirdosh Kumar v. Padma Rani, 1984 (2)
Rec Cr R 239.
(m)Where the demand was made at the time when marriage ceremony was in progress and
was repeated after the marriage, it was held that it fell within the definition of dowry;
L.V. Jadhav v. Shankar Rao, (1983) 2 Crimes 470.
(n) Definition of ’dowry’ is not restricted to agreement or demand for payment of dowry
before and at the marriage but also includes demands made subsequent to marriage;
State of Andhra Pradesh v. Raj Gopal Asawa, AIR 2004 SCW 1566.
(o) Demand of dowry in respect of invalid marriage would not be legally recognisable;
Reena Aggarwal v. Anupam, AIR 2004 SC 1418.
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Penalty for giving or taking dowry.- (Section 3)

Sec 3(1) - If any person, after the commencement of this Act, gives or takes or abets the
giving or taking of dowry, he shall be punishable with imprisonment for a term which shall
not be less than 3 five years, and with fine which shall not be less than fifteen thousand
rupees or the amount of the value of such dowry, whichever is more

Provided that the Court may, for a adequate and special reasons to be recorded in the
judgment, impose a sentence of imprisonment of a term of less than 4 five years.

(2) Nothing is sub section (1) shall apply to, or in relation to, –

(a) Presents which are given at the time of a marriage to the bride (without any demand
having been made in that behalf).

(b) Presents which are given at the time of a marriage to the bridegroom (without any
demand having been made in that behalf).

Provided that such presents are entered in a list maintained in accordance with the rules made
under this Act.

Provided further that where such presents are made by or on behalf of the bride or any person
related to the bride, such presents are of a customary nature and the value thereof is not
excessive having regard to the financial status of the person by whom, or on whose behalf,
such presents are given .

(i) Section 3 does not contravene articles 14, 19, 21 and 22 of the Constitution and therefore
this section is not ultra vires of the said articles; Indrawati v. Union of India, I (1991) DMC
117 (All).

(ii) The offence is founded in the relationship of the property demanded as abettor with the
nature of demand. It should not bear a mere connection with marriage; Madan Lal v. Amar
Nath, (1984) 2 Rec Cr. 581.

(iii) Abetment is a preparatory act and connotes active complicity on the part of the abettor at
a point of time prior to the actual commission of the offence; Muthummalv.Maruthal, 1981
Cr. LJ 833 (Mad).

Penalty for demanding dowry.-(Section 4)

Penalty for demanding dowry.- If any person demands, directly or indirectly, from the parents
or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he
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shall be punishable with imprisonment for a term which shall not be less than six months, but
which may extend to two years and with fine which may extend to ten thousand rupees.

Provided that the Court may, for a adequate and special reasons to be mentioned in the
judgment, impose a sentence of imprisonment for a term of less than six months.

(i) The mere demand of dowry before marriage is an offence; Pandurang

ShivramKawathkar v. State of Maharashtra, 2001 Cr LJ 2792 (SC).

(ii) The offence of demanding dowry stood committed even before the marriage was
performed and also when the demand was repeated again and again after the performance of
marriage in respect of the same items of dowry; Harbans Singh v. Smt. Gurcharan Kaur
alias Sharan Kaur, 1993 Rec Cr R 404 (Del).

(iii) The deceased had before being set on fire by her in-laws written a letter to her father that
she was being ill-treated, harassed and threatened of dire consequences for non-satisfaction of
demand of dowry. Thereby proving that an offence of demanding dowry under section 4 had
been committed; Bhoora Singh v. State of Uttar Pradesh, 1993 Cri LJ 2636 All.

(iv) There had been no agreement between either parties to the marriage nor their relations to
give any property or valuable security to the other party at or before or after the marriage.
Held that the demand of TV, refrigerator, gas connection, cash of Rs. 50,000 and 15 tolas of
gold will not amount to demand of dowry but demand of valuable security and the said
offence does not attract section 4 of the Dowry Prohibition Act; Shankar Prasad Shaw v.
State, I (1992) DMC 30 Cal.

(v) Furnishing of a list of ornaments and other household articles at the time of settlement of
marriage amounts to demand of dowry and accused are liable to be convicted under section 4;
Raksha Devi v. Aruna Devi, I (1991) DMC 46 (P&H).

(vi) Section 4 of Dowry Prohibition Act is not ultra vires nor does it contravene articles 14,
19, 21, 22 of the Constitution; Indrawati v. Union of India, 1 (1991) DMC 117 All.

Section 4A. Ban on advertisement .-

If any person –

(a) Offers through any advertisement in any newspaper, periodical, journal or through any
other media, any share in his property or of any money or both as a share in any business or
other interest as consideration fore the marriage of his son or daughter or any other relatives.
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(b) Prints or published or circulates any advertisement referred to in clause (a),he shall be
punishable with imprisonment for a term which shall not be less than six months, but which
may extend to five years, or with fine which may extend to fifteen thousand rupees.

Provided that the Court may, for adequate and special reasons to be recorded in the judgment,
impose a sentence of imprisonment for a term of less than six months.

Section 5 Agreement for giving or taking dowry to be void –

Any agreement for the giving or taking of dowry shall be void.

Section 6: Dowry to be for the benefit of the wife or heirs.

(1) Where any dowry is received by any person other than the woman in connection with
whose marriage it is given, that person shall transfer it to the woman –

if the dowry was received before marriage, within three months after the date of marriage; or

if the dowry was received at the time of or after the marriage within three months after the
date of its receipt; or

if the dowry was received when the woman was a minor, within three months after she has
attained the age of eighteen years, and pending such transfer, shall hold it in trust for the
benefit of the woman.

(2) If any person fails to transfer any property as required by sub-section (1) within the time
limit specified therefor or as required by sub-section(3), he shall be punishable with
imprisonment for a term which shall not be less than six months, but which may extend two
years or with fine which shall not be less than five thousand rupees, but which may extend to
ten thousand rupees or with both.

(3)Where the woman entitled to any property under sub-section (1) dies before receiving it,
the heirs of the woman shall be entitled to claim it from the person holding it for the time
being:

if she has no children, be transferred to her parents, or

if she has children, be transferred to such children and pending such transfer, be held in trust
for such children.

(3-A) Where a person convicted under sub-section (2) for failure to transfer any property as
required by sub-section (1)or sub-section (3) has not, before his conviction under that sub-
section, transferred such property to the women entitled thereto or, as the case may be, her
heirs, parents or children, the Court shall, in addition to awarding punishment under that sub-
section, direct, by order in writing, that such person shall transfer the property to such
woman, or as the case may be, her heirs, parents or children within such period as may be
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specified in the order, and if such person fails to comply with the direction within the period
so specified, an amount equal to the value of the property may be recovered from him as if it
were a fine imposed by such Court and paid to such woman, as the case may be, her heirs,
parents or children.

(4)Nothing contained in this section shall affect provisions of Sec. 3 or Sec. 4.

Section 7 :Cognisance of offences.-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2of 1974),-
no Court inferior to that of a Metropolitan magistrate or a Judicial Magistrate of the first class
shall try any offence under this Act; no Court shall take cognizance of an offence under this
Act except upon –

its own knowledge or a police report of the facts which constitute such offence, or

a complaint by the person aggrieved by offence or a parent or other relative of such person, or
by any recognized welfare institution or organization:

Explanation.- For the purposes of this sub-section, "recognised welfare institution or

organization" means a social welfare institution or organization recognized in this behalf by
the Central or State Government.

(2) Nothing in Chapter XXXVI of the Code of Criminal Procedure, 1973 (2of 1974), shall
apply to any offence punishable under this Act.)

Notwithstanding anything contained in any law for the time being in force, a statement made
by the person aggrieved by the offence shall not subject such person to a prosecution under
this Act.

The point of time at which the legality of cognizance is to be judged is the time when
cognizance is actually taken; M.L. Sethi v. R.P. Kapur, AIR 1967 SC 528.

The expression ‘to take cognizance’ has not been defined in this Act nor in the Criminal
Procedure Code The word ‘Cognizance’ is however, used in the Code to indicate the point
when the Magistrate takes judicial notice of an offence. It is a word of indefinite import and
is perhaps not always used in exactly the same sense; Darshan Singh v. State of
Maharashtra, AIR 1971 SC 2372.

Taking cognizance is a judicial action taken with a view eventually to prosecution and
preliminary to the commencement of the inquiry or trail; Food Inspector v. Laxmi Narayan,
1969 Cut LT 863.

If a Magistrate has no jurisdiction to try an offence, he is not barred from taking cognizance
of the offence; Jaddu v. State, AIR 1952 All 873.
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Section 8- Offences to be congnizable for certain purposes and to be bailable and non-
compoundable.

(1) The Code of Criminal Procedure, 1973 (2 of 1974) shall apply to offences under this Act
as of they were cognizable offences-

for the purpose of investigation of such offences; andfor the purpose of matters other than-
matters referred to in Sec. 42 of that Code, andthe arrest of person without a warrant or
without an order of a Magistrate.

(2) Every offence under this Act shall be non-bailable and non-compoundable.

Section 8-A. Burden of proof in certain cases: Where any person is prosecuted for taking
or abetting the taking of any dowry under Sec. 3, or the demanding of dowry under Sec.4, the
burden of proving that he had not committed an offence under those sections shall be on him.

(i) Where no specific suggestions given to any of the prosecutions witnesses regarding plea of
alibi, the plea is not maintainable; Pandurang ShivramKawathkar v. State of
Maharashtra, 2001 Cr LJ 2792.

(ii) If death of wife is within 4 years of marriage in abnormal circumstances and demand of
dowry and cruelty is established, the onus to rebut the presumption of dowry death shifts to
defence vide Cr. Appeal No. 431 of 1997, decided on 4-2-2004.

Section 8-B. Dowry Prohibition Officers:

(1) The State Government may appoint as many Dowry Prohibition Officers as it thinks fit
and specify the areas in respect of which they shall exercise their jurisdiction and powers
under this Act.

(2) Every Dowry Prohibition Officer shall exercise and perform the following powers and
functions, namely, -

to see that the provisions of this Act are complied with;

to prevent, as far as possible, the taking or abetting the taking of, of the demanding of, dowry;

to collect such evidence as may be necessary for the prosecution of persons committing
offences under the Act; and

to perform such additional functions as may be assigned to him by the State Government, or
as may be specified in the rules made under this Act.
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(3) The State Government may, by notification in the official Gazette, confer such powers of
a police officer as may be specified in the notification, the Dowry Prohibition Officer who
shall exercise such powers subject to such limitations and conditions as may be specified by
rules made under this Act.

(4) The State Government may, for the purpose of advising and assisting the Dowry
Prohibition Officers in the efficient performance of their functions under this Act, appoint an
advisory board consisting of not more than five social welfare workers (out of whom at least
two shall be women) from the area in respect of which such Dowry Prohibition Officer
exercises jurisdiction under sub-section (1).

Section 9 :Power to make rules:

(1) The Central Government may, by notification in the official Gazettee, make rules for
carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules
may provide for-

the form and manner in which, and the persons by whom, any list of presents referred to in
sub-section (2) of Sec. 3 shall be maintained and all other matters connected therewith; and

the better co-ordination of policy and action with respect to the administration of this Act.

(3)Every rules made under this section shall be laid as soon as may be after it is made before
each House of Parliament while it is in session for a total period of thirty days which may be
comprised in one session or in two or more successive sessions, and if, before the expiry of
the session immediately following the session or the successive sessions aforesaid both
Houses agree in making any modification in the rule or both Houses agree that the rule
should not be made, the rule shall thereafter have effect only in such modified form or be; of
no effect, as the case may be, so, however, that any such modification or annulment shall be
without prejudice to the validity of anything previously done under that rule.

The Supreme Court directed to States and Union Territories for awareness regarding
provision of the Act and Rules in the public; In Re: E & I of Dowry Prohibition Act, 1961
v. Union of India, AIR 1999 SC 1538.

Section 10:Power of the State Government to make rules.-

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The State Government may, by notification in the official Gazette, make rules for carrying
out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules
may provide for all or any of the following matters, namely:

the additional functions to be performed by the Dowry Prohibition Officers under sub-
section(2) of Sec. 8-B;

limitations and conditions subject to which a Dowry Prohibition Officer may exercise his
functions under sub-section (3) of Sec. 8-B.

(3) Every rule made by the State Government under this section shall be laid as soon as may
be after it is made before the State Legislature.

Female Criminality in India

Criminality of women has for quite some time been dismissed in light of customary
conviction that women are honest and are less crime inclined. The women in Indian culture
are approached with deference and poise. They are thought to be the preservers of social
standards, conventions, traditions, ethical quality, and cohesiveness in the family. Usually
faith in the Indian culture that the role women are confined to home, she commits her life in
serving all individuals from the family. Her happiness lies in the prosperity of different
individuals from the family; her prosperity lies in the accomplishment of individuals from
family. Women have the less opportunity to blend with other individuals other than
individuals from the family. The family framework in India is man centric in nature. Oldest
male part heads the family. Family is distinguished by the family name or for the sake of
leader of the family. Women have a subordinate and supporting position to men in the
family. As a young lady she is secured by father, as a spouse by the husband and as an old
individual by the child. A lady in the family is secured by the male individuals. Their
involvement in criminal exercises is at a minimal level comparing men. Male criminality is
generally examined and has dependably created interest in Criminology and parcel of
research work is done on this territory (Simon, 2005).

The point of women crime has started to attract much consideration because of
reestablished interest in women and monetary improvement. The role of women in Indian
culture has under gone significant change since two decades leading to a more prominent
investment in criminal exercises by them.
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Like women criminality women prisonization and privileges of the women detainees has
likewise been disregarded by the thinkers and furthermore by the specialists. The custodial
equity for the women specifically has turned out to be vital in view of the changing financial
and social scenario improved women's involvement in crimes and increased quickly. The
custodial offenses against women detainees have additionally increased making it important
to embrace a basic investigation of the existing lawful arrangements, their orderly
infringement and the ways and imply, legitimately and essentially, to connect the escape
clauses to the treatment of women detainees at different phases of allegation conviction
and confinement.As women's role in the general public change and women are more
presented to different open doors related with male role, the level of increase in female
criminal conduct will be keeping pace with male criminality. Women's investment in crimes
will increase as their work openings extend according to their interest, want and definition
of self-move from conventional to a more liberal one. We find that the quantities of
aggressive behavior at home are increasing which is observed to be mainly because of the
settlement framework; by this the disobedience state of mind is created that has
constrained women to carry out crime. Crime is an ever-current condition, for example,
infection, sickness and demise. It is an enduring as spring and as repetitive as winter.
Criminal isn't conceived; however is a result of social elements. The main sources of crime
might be extensively isolated in five main classes viz; Social, Economic, Physical,
Geographical and Political. Among the social causes i.e. Family, blemished education,
Cinema, Newspaper, Absence of social control, utilization of liquor, forbiddance of dowager
remarriage, imperfections of marriage and settlement framework and so on, and the
Economic causes i.e. destitution, joblessness, Industrialization, Urbanization, and so on are
observed to contribute a noteworthy part in the commission of the criminal demonstration
(Pattanaik& Mishra, 2011).

Keeping in see the examination considers relating to female criminality and female
prisonisation by different thinkers at the national and international level the essentialness and
pertinence of the present work on women detainees of Karnataka is specified as under and it
is likewise explained how the investigation is significant in the advanced circumstances.

Causes of Female Criminality in India

Causes based on biological viewpoint postulated by early criminologists were baselessand

does not apply to women in India. The early researchers attributed female criminalityto
biological or sociological antecedents. Crime, as a behavioural or social problem,
iscomplicated and not easily understood. Women are considered as turning crime as
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aperversion of feminine role whether their causes are biological, psychological, social or
environmental.

Biological Viewpoint:

Under the Biological Viewpoint, Caesar Lombroso's contribution is considered as

thefoundation of scientific study on female crime. He viewed, "female deviance as rooted
inthe biological make up or as inherent feature of the female species". He stated that
femalecriminals are more terrible than the male criminals because cruelty by a female was
muchmore ‘refined' and diabolic than men. Lombroso thought women shared many
qualitieswith children and they were morally deficient and their lack of intelligence was the
reasonof their relatively small participation in crime. Lombroso and Ferrero (1895) postulated
atheory that was based on a belief that all individuals displaying anti-social behavior
werebiological throwbacks. The born female criminal was considered to have the
criminalqualities of men and the worst qualities of women. However, we feel that, Indian
womenare inclined to crime more because of social or economic deprivation than
beingbiological throwbacks.

Psychological Viewpoint

Women who are not passive and content with their traditional roles as mothers andwives are
maladjusted. Maladjusted women refuse or fail to internalize the valuesassociated with the
role in the society. Women convict(s) display emotional instability,insecurity, rejection or
frustration. They would have encountered harsh living conditions,disappointments in love
and a large number of unfortunate experiences which generallymade it difficult for them to
face realities of life. Stress is higher for women on averagethan for men, primarily due to
blocked opportunities, and the conflicting message ofmotherhood versus work. Women with
lower social status experience higher stress, onaverage, than women with higher social status.
Women are afraid to express anger becauseit could alienate those around them. So they
suppress anger and most women cope bychanging anger to guilt, failure, and sadness. Women
“bottle up "their feelings until itfinally explodes in lethal violence. Women experiencing
peaks of stress are more likelythan men to explode with episodes of extreme uncontrolled
violence. Situations that causecontinuous stress and isolation combine with poor coping skills
and the over-controlledpersonality to result in violence. Psychological viewpoint is applicable
to Indian scenario asthere are several crimes committed because of depression and
frustration.

Sociological Viewpoint

A plethora of writings on sociological viewpoint emerged during the last few decades.This
viewpoint stress upon how social factors lead to a woman turning a criminal. Womenin India,
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in spite of so much development and awareness face inequality in every phase oflife. Equality
for women is not practiced as it is stated in Constitution of India. Due toinequality, women
miss most of the opportunities in life which in turn affect her financialindependence and thus
her economic status is lowered. Women in Indian society arealways expected to understand
and adjust according to the world around her. This unequalposition of women in society due
to social oppression and economic dependency on menand the state needs to be addressed. In
most ways, crimes women commit are consideredto be final outward manifestations of an
inner medical imbalance or social instability.

The Immoral Traffic (Prevention) Act, 1986:

The Immoral Traffic (Prevention) Act, 1986, originally theSuppression of Immoral Traffic in
Women and Girls (SITA),1956, is the Central legislation dealing with trafficking inIndia.
However, even though the name refers to immoraltrafficking of persons, the ITPA’s scope is
limited to commercialsexual exploitation or prostitution and penalizes those whofacilitate and
abet commercial sexual exploitation, includingclients and those who live off the earnings of
prostitutes. Italso provides for welfare measures towards rehabilitationof victims in the form
of protective homes to be set up andmanaged by state governments. Unfortunately, even as a
lawdealing with sexual exploitation it leaves a lot to be desired.

ITPA does not proscribe sex work per se but deal with severely specific activities related to
commercial sex. It also provides for liberation & rehabilitation of persons in sex work. The
Act is applied through Police & the Magistracy. Acts is carrying a punishment under ITPA
include:

§ Brothel keeping (Section 3)

§ Living on earnings of sex work (Section 4)

§ Procuring, inducing or detaining for prostitution (Section 5 & Section 6) Penalties are of
more degree where offences involve children (under age of 18 years)

§ Prostitution in areas notified by Police & near public places (Section 7)

§ Soliciting (Section 8) all offences are cognizable i.e. police do not require a warrant to
arrest or search. (Section 14) Police personnel entrusted with the application of the Act
locally (Special Police Officers) as well as at the national level (Trafficking Police Officers)
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are conferred special powers (Section 13) to raid, rescue & search properties suspected of
serving as brothels (Section 15). Magistrates are authorized to order arrests & removal, direct
custody of rescued persons, close down brothels & remove sex workers (Sections 16, 17, 18
& Section 20).The Act provides institutional rehabilitation for „rescued‟ sex workers.
(Sections 19, 21, 23 & ITPA State Rules)

Consequences:

§ Sex work per se is not illegal under the Act, but, its de facto criminalization through
prohibition of soliciting, brothel & street work, has effectively weakened sex workers‟ ability
to claim protection of law.

§ Absence of safeguards has intensified violence & exploitation by brokers, agents & the
mafia.

§ Punitive provisions are unreceptive to public health interventions to reduce HIV.

§ Terror of arrest, infringement by Police makes negotiation of safer sex difficult.

§ Peer educators carrying condoms are detained for “promoting sex work”.

§ Efforts to promote condom use in brothels have been aborted.

§ Disempowerment of sex workers increase harms of HIV & Trafficking Specific Problems.

Prohibition of Brothels: Section 2(a) defines „brothel‟ as “„any house, room, conveyance or
place or any portion of any house, room, conveyance or place which is used for purposes of
sexual exploitation or abuse for the gain of another person or for the mutual gain of two or
more prostitutes‟.” Section 3 provides punishment for keeping, running & managing a
brothel. The term “mutual gain of two or more sex workers”, eases premises shared by sex
workers illegal, including their residence. There have been several occasions where sex
workers have lost their homes & earnings under the pretext of “closing down brothels”. As
long as brothels remain illegal, widespread condom use cannot be achieved.
Criminalization of Earnings of Sex Work: Section 4 punishes adult persons being
economically supported by sex workers including those living with sex workers. Therefore,
aged parents, siblings, partner(s), and offspring over 18 years, who are reliant on on sex
workers are treated as criminals. In reality, a significant majority of persons, particularly
women, turn to sex work to upkeep their families including children & parents. Ironically,
these very persons are punishable by law.
Penalties for Soliciting: Section 8 punishes a sex worker drawing attention of potential
customers from a visible, noticeable site, whether in a street or private dwelling. The
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criminalization of soliciting is one of the most apparent legal problems for sex workers, who
are faced with arrests, court hearings & convictions on a repetitive basis. Sex workers are
arrested even when they are not soliciting. Number of them pleads guilty finding themselves
in a vicious cycle of criminalization. Though this provision does nothing to prevent or halt
trafficking, it is “most-used”, with maximum arrests & convictions being reported under
Section 8, Immoral Traffic Prevention Act.
Statutory Powers & Procedures: Immoral Traffic Prevention Act confers wide-ranging
powers on Police to conduct & Magistrates to order:
Raid Police can enter and search any properties on suspicion. Raids are often carried out in
breach of legal procedure for public witness, female Police etc. Violence, abuse &
humiliation of sex workers are day to day phenomena. Raids impair sex workers‟ ability &
result in greater than before harm. Medical examination Section 15 (5A) mandates medical
examination of persons removed from brothels for, inter alia detection of sexually transmitted
diseases. Sex workers are reportedly against their will are tested for HIV & their results are
revealed in open Court. This is opposing to national policy, which requires consent, secrecy
& counseling for HIV Testing. Rescue & Rehabilitation Police can remove any person found
in premises where sex work is carried out irrespective of age & consent. Rehabilitation is
synonymous with detention in State run homes for unspecified periods. Viable economic
substitutes are either non-existent or inaccessible to sex workers on account of stigma.
Expulsion of sex workers: Section 18 & Section 20 authorizes Magistrates to close down
brothels & oust persons from premises where sex work is being carried out, including their
residence. Vulnerable with eviction, sex workers are forced to relocate with no access to
health & HIV services. Over the last 50 years, Immoral Traffic Prevention Act has failed to
prevent & stop trafficking. On the contrary, it has become a source of cruelty on sex workers,
who face routine harassment & repeated arrests.
If a person if found with a child it is presumed that he has imprisoned that child there for the
purpose of sexual intercourse and hence shall be punishable to seven year in prison up to life
imprisonment, or a term which may extend to ten year and also a maximum fine of one lakh
rupees. If a child is found in a brothel and after medical examination has been found to have
been sexually abused, it is presumed that the child has been detained for the purpose of
prostitution.
Any person committing prostitution in public with a child shall be punishable to seven year in
prison up to life imprisonment, or a term which may extend to ten year and also a maximum
fine of one lakh rupees. If prostitution of a child is being committed with knowledge of an
establishment owner such as a hotel the license of the hotel license is likely to be cancelled
along with the given prison sentence and or fines.
Any child found in a brothel or being abused for the purpose of prostitution can be placed in
an institution for their safety by a magistrate. Landlords, leasers, owner, agent of the owner
who unknowingly previously rented their property to a person found guilty of prostituting a
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child, must get approval from a magistrate before re-leasing their property for three years
after the order is passed.

The Medical Termination of Pregnancy Act, 1971:

During the last thirty years many countries have liberalized their abortion laws. The
worldwide process of liberalization continued after 1980. Today only 8% of the world's
population lives in countries where the law prevents abortion. Although the majority of
countries have very restricted abortion laws, 41% of women live in countries where abortion
is available on request of women. In India, Shantilal Shah Committee (1964) recommended
liberalization of abortion law in 1966 to reduce maternal morbidity and mortality associated
with illegal abortion. On these bases, in 1969 Medical termination of pregnancy bill was
introduced in Rajya Sabha and Lok Sabha and passed by Indian Parliament in Aug. 1971.
Medical Termination Of Pregnancy Act, 1971 (MTP Act) was implemented from Apr.1972.
Implemented rules and regulations were again revised in 1975 to eliminate time consuming
procedures for the approval of the place and to make services more readily available. The
MTP Act, 1971 preamble states" an Act to provide for the termination of certain pregnancies
by registered medical practitioners and for matters connected therewith or incidental thereto".

The preamble is very clear in stating that termination of pregnancy would be permitted in
certain cases. The cases in which the termination is permitted are elaborated in the Act itself.
Moreover, only a registered medical practitioner who is defined in Sec.2(d) of the Act as "a
medical practitioner who possess any recognize medical qualification as defined in Cl.(h) of
sec.2 of the Indian Medical Register and who has such experience or training in gynecology
and Obstetrics as may be prescribed by rules made under this Act" is permitted to conduct the
termination of pregnancy. Also other matters connected there with the incidental thereto are
incorporated, for example, the question of consent of termination of pregnancy, the place
where the pregnancy could be terminated, the power to make rules and regulations in this
behalf.

Grounds for termination of pregnancy:

Sec.3: When pregnancies may be terminated by registered medical practitioner.

(i) Notwithstanding anything contained in the Indian Penal Code (45 of 1860) a registered
medical practitioner shall not be guilty of any offence under that Code or under any other law
for the time being in force, if any pregnancy is terminated by him in accordance with the
provisions of this Act".

This makes it clear that the provisions of the MTP Act, so far as abortion is concerned
suppresses the provisions of the Indian Penal Code. Sub-sec. (2) of Sec.3: "Subject to the
provisions of sub-sec (4), a pregnancy, may be terminated by a registered medical
practitioner.
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(a) Where the length of the pregnancy does not exceed 12 weeks if such medical practitioner
is, or

(b) Where the length of the pregnancy exceeds 12 weeks but does not exceed 20 weeks, if not
less than 2 registered medical practitioners are of opinion, formed in good faith that:

1: The continuance of the pregnancy would involve a risk to the life of the pregnant
women ;or

2: A risk of grave injury to the her physical or mental health ;or

3: If the pregnancy is caused by rape; or

4: There exist a substantial risk that, if the child were born it would suffer from some physical
or mental abnormalities so as to be seriously handicapped; or

5: Failure of any device or method used by the married couple for the purpose of limiting the
number of children; or

6; Risk to the health of the pregnant woman by the reason of her actual or reasonably
foreseeable environment.

The Act does not permit termination of pregnancy after 20 weeks. The medical opinion must
of course be given in "good faith". The term good faith has not been defined in the Act but
sec. 52 if the IPC defines good faith to mean as act done with 'due care and caution'. It is
important to note that certain loopholes exist in the provisions. Firstly, nowhere has the Act
defined what would involve a risk or a grave injury to her mental health. The term grave
injury or substantial risk remains undefined. The gravity of the injury or the extent of the risk
being left to the interpretation of the clause by the medical practitioner. However the MTP
Act provides some guidance for the doctors in the form of two explanations.

Sec 3(2) Explanation 1: where any pregnancy is alleged by the pregnant woman to have been
caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave
injury to the mental health of the pregnant woman.

Therefore, rape per se is not an indication. It is the mental anguish following pregnancy due
to rape, which is the main indication. In other words, mental anguish is to be taken into
consideration; proving rape and affecting her character is not necessary. Her allegation that
she has been raped is sufficient. Further proof of rape like medical examination, trial,
judgment is not necessary.

Explanation 2: where any pregnancy occurs as a result of failure of any device or method
used by any married woman or her husband for purpose of limiting the number of children
they anguish caused by such unwanted pregnancy may be presumed to constitute a grave
injury to the mental health of the pregnant woman.
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The Act says that mental anguish due to pregnancy due to contraceptive failure in a married
woman is an indication. Can an unmarried woman avail of this clause? She cannot use this,
but she can get abortion under the general clause of mental indication.

Sub Section (3) clarifies that:

Sub-Sec.3 (3) In determining that whether the continuance of a pregnancy would involve
such risk of injury to the health as is mentioned in sub-sec (2), account may be taken of the
pregnant woman's actual or reasonable foreseeable environment. Therefore in determining
whether the continuation of pregnancy would constitute a risk to the physical or mental health
of the pregnant woman the Indian Law permits the consideration of the woman actual or
reasonably foreseeable environment. The terms reasonably or foreseeable being left to the
interpretation of the medical practitioner. Environmental clauses could include, by
interpretation, drunkard husband, low-income group, large family etc. By and large, these
explanations provide for two instances where continued pregnancy is assumed to constitute a
grave injury to the mental health of the pregnant woman, namely where the pregnancy is
alleged by a woman to have being caused by rape and second where the pregnancy occurs as
a result of failure f any device by a married woman or her husband for purpose of limiting the
number of children. The provision provides the doctors with a yardstick for a broad
interpretation of the basic concept of the potential injury to the mental health of the pregnant
woman.

The rest of the matters come in the case of mental indication where abortion is allowed and
continuation of pregnancy would involve grave injury to her mental health. This is a
subjective indication and commonly restored one.

In one of the case, where a girl detained in a Women's Welfare institution applied to the High
Court during the pendency of her writ petition that the Court be pleased to order termination
of her pregnancy and the Court found that the Pregnancy was against her will and that unless
it was terminated the girl would suffer traumatic and psychological shock, the High Court
directed termination in a govt. Maternity hospital if the doctors there on examination found
that the termination would not affect her life and safety.

Qualification of Doctors:

According to the Act, 'a medical practitioner who possess any recognized medical
qualification as defined in cl. (h) of Sec.2 of the Indian Medical Council Act, 1956 whose
name has been entered in a state medical register and who has such experience or training in
gynecology or obstetrics as may be prescribed by rules made under this Act is permitted to
conduct the termination of pregnancy'. Allopathic doctors who are duly registered with the
State Medical Council are authorized to do abortion. Other like homeopathic, ayurvedic,
unani doctors and unqualified doctors like RMP, Quacks, et al are not entitled to perform
abortion. Even among allopathic doctors, only those who satisfy one or the other of the
following qualifications are eligible to do MTP. Once a doctor satisfies the require
qualifications, he automatically becomes eligible to do abortions. He need not apply for
eligibility to any authority. A doctor cannot refuse to do abortions on religious grounds. If he
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does so, his name is liable to be erased from the Medical Council. If he is a Govt. doctor, he
is liable for departmental action.

Consent for Abortion:

Section 3(4) of MTPA clarifies as to whose consent would be necessary for termination of
pregnancy.

(a) No pregnancy of a woman, who has not attained the age of 18 years, or who having
attained the age of 18 years, is a lunatic, shall be terminated except with the consent in
writing of her guardian.

(b) Save as otherwise provided in cl (a), no pregnancy shall be terminated except with the
consent of the pregnant woman.

It is important to note, in this section, that the consent of the woman is the essential factor for
termination of her pregnancy. The husband's consent is irrelevant. Therefore, if the woman
wants an abortion but her husband's objects to it, the abortion can still be done. However, if
the woman does not wants an abortion but her husband wants, it cannot be done. However,
the consent of the guardians is needed in the case of minors or lunatics.

Where the pregnancy can be terminated:

Section 4 specifies the place where, under MTP, a pregnancy can be terminated. It stipulates
that an operation must take place in either "a hospital established or maintained by the
government" or in "a place which has been approved for the purpose of this Act by the
government." However exceptions are made for emergencies. Under section 5(1), a doctor
may terminate a pregnancy if it is "immediately necessary to save the life of the pregnant
woman". In such situations, the requisites relating to the length of pregnancy, the need for
two medical opinions and the venue for operation do not apply. However, it needs to be
pointed out that one aspect of this emergency clause tends to restricts rather than liberalize
the old law. Section 312 of the IPC permitted abortions by anyone with the object of saving
the life of the mother, but under MTPA only a doctor can terminate the pregnancy.

Approval of a Place:

No place shall be approved under Cl (b) of sec.4

(1) Unless the Government is satisfied that termination of pregnancy may be done therein
under safe and hygienic conditions.

(2) Unless the following facilities are provided therein namely:

i. An operation table and instruments for performing abdominal gynecological surgery

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ii. Anesthetic equipment, resuscitation equipment and sterilization equipment

iii. Drugs and parental fluids for emergency use.

Thus, the oft-argued following justifications in favour of the permissive abortions are found
in the Indian law.

(1) Therapeutics: The old restrictive Indian abortion law has permitted abortion to save the
life of the mother. In addition, the reformed law, as seen above allows abortions when the
mother's life is not threatened, but when continued pregnancy will cause damage to her
mental and physical health.

(2) Eugenics: the basic of eugenic abortion is that there is a justification for abortion when it
is known before birth that the child will be born mentally or physically deformed. The unborn
child should be relieved of a life of misery.

(3) Pregnancy caused by rape: the problem of a pregnancy caused by rape may effect the
mental health of the mother. It is assumed that the victim mother does not want the child and
does not want to bear the continuing result of a crime for which she was not culpable.

(4) Social and economic considerations: A popular argument in favour of abortion is based on
the absolute right of the woman to control the use of her body. She has a right to an abortion
on demand to terminate any pregnancy, which she decides she does not want. Admittedly, the
right to control the use of one's body is founded on ideas of liberty, and restrictions thereon
may amount to an invasion of privacy.

In countries where abortion is legal, death rates are usually below 1 per 100,000 procedures.
Abortion is a very safe operation if the operation is performed by skilled medical
practitioners, having proper facilities and equipments. In developing countries like India with
scarce medical resources treatment of complications of abortion often posses a heavy burden
on the health care system. According to recent estimates made by the World Health
Organization, about one-quarter to one-third of maternal deaths are due to complications of
(illegally) induced abortion. This can be prevented through offering easily accessible safe
abortion services and through family planning services and education. Reliable statistics
show that in many countries where abortion is legally available, the abortion rate is much
lower than in countries where it is completely illegal.

The key features of the Medical Termination of Pregnancy Act, 1971 were as follows:

# It indicated when pregnancy could be terminated i.e. upto twenty weeks of pregnancy.

# It specified the indications when termination of pregnancy could be done.

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# It indicated that only a qualified registered medical practitioner as defined under the Act
could conduct termination of pregnancy and relied upon the Indian Penal Code for
punishment if conducted by any other.

# It also indicated that termination of pregnancy could be done only in a place established,
maintained or approved by the Government.

Thus it did help to legalize and regulate the termination of pregnancy and really did much for
upliftment of women. Gradually, with an increasing number of centers and with new
problems cropping up, the Act was amended and passed on December 18, 2002.Essential
features of the amendment are as follows: -

# In the amended Act, the word "mentally ill person" covers a wider variety of mental
diseases and disorders than the word

# lunatic" of the Principal Act.

# In the amended Act, recognition of a place for the purpose of carrying out MTP is now at
district level rather than the state capital and hence procedural delays should be less.

# In the Principal Act, there was dependence on IPC to enforce discipline. In the amended
Act, the punishment is incorporated in the Act itself.

Protection of Women from Domestic Violence, Act 2005

Introduction:

The origin of the Act lies in Article 15 (2) of the Constitution of India, which clearly says that
“State can make special provisions for women and children” towards realizing the right to
equality. This indicates the use of affirmative action to remedy a wrong. It is often said that
India has several laws but they are not implemented. The problem, however, is not the lack of
implementation, but the lack of a mechanism by which it can be implemented. Women have
insufficient understanding of the law and lack of access to the courts. Hence it is necessary
not only to enact a law but to provide the necessary infrastructural tools with which to access
the law. The way of doing this is to put a mechanism in place in the law itself. In the Act, this
has been done by creating the office of the Protection Officer and recognizing the role of the
Service Providers. Affirmative duties have been imposed on the government to provide legal
aid, medical facilities and shelter homes in the hope that women in distress be given all these
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facilities. The Act is a statement of commitment by the State that domestic violence will not
be tolerated.

Background:

Domestic Violence remains one of the most prevalent yet largely invisible forms of violence.
Contrary to the general belief, Domestic Violence is not restricted to certain social sections.
Domestic Violence occurs in many forms- physical, emotional, sexual, economic, verbal, etc.
Woman faces Domestic Violence as a daughter, sister, wife, mother, or a partner in her
lifetime. As per the NCRB Report 2003, 36.1% of the total reported crimes against women
relate to domestic violence. As per NFHS (2) 1998-99, 1 in 5 married women in India
experience domestic violence from the age of 15.

Prior to Protection of Women from Domestic Violence Act (PWDV) Act 2005, under the civil
law, for acts of domestic violence a married woman can initiate proceeding for divorce/
judicial separation. However, this fails to provide any kind of immediate relief and protection
to the woman. She remains at the mercy of her parents/ relatives. Also it leads to problems of
costs and delays in litigation. Most commonly used provision of criminal law in dealing with
cases of Domestic Violence is Section 498A of the Indian Penal Code. It makes cruelty to a
wife by her husband or relatives an offence and attracts a maximum punishment of three
years on conviction. Limitation of this provision is that it is not aimed at providing reliefs,
namely maintenance, shelter, etc. It is confined to the prosecution and possible conviction of
the offender.

Protection of Women from Domestic Violence Act (PWDV) Act 2005 recognizes the right of
a woman to live in violence free home.

What Is “Domestic Violence:

A “Physical abuse”- any act that causes bodily injury or hurt. E.g. beating, kicking, punching,
etc.

B “Sexual abuse”- any humiliating or degrading sexual act. E.g. forced sexual intercourse etc.
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C. “Verbal and emotional abuse”- insults, threat causing harm or injury.

D. “Economic abuse”- deprivation of the basic necessities of life.

Who can claim Relief:

• Any woman facing violence in domestic relationship [S. 2(a)].

• Domestic relationships are relationships between a woman and a man living in a shared
household.

Domestic relationship:

Marriage -such as wives, daughter-in-laws, sister-in-laws, widows etc. with other members of
the family.

Blood relationships-such as mothers-sons, sisters brothers, daughters- Fathers ,etc.

Other relations -through adoption, relationships in the nature of marriage (including victims
of legally invalid marriages).

How can a woman get relief from the court:

• Woman or any person on her behalf can give information of domestic violence to the PO,
Police or the Magistrate (S. 4).

• Duty to inform of her right to make an application under DV Act, availability of services of
POs (S. 5).

• Complaint to be registered by PO in Domestic Incident Report (DIR) format.

• DIR is a record of the fact that an incident of violence has been reported (similar to NCR).

• Copy of DIR to be forwarded by PO to the Magistrate and the police officer in charge of the
police station in the jurisdiction.
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• DIR be kept in record for future reference.

• An application for reliefs (S.12) under DV Act to Magistrate can be made by:

a. the woman herself, directly to the court,

b. through Protection Officer,

c. if there is a pending case between a woman and her husband and she can ask for Orders
under DV Act in that proceeding itself (S.26).

Major reliefs are available under Act:

1. Protection Order (Section 18)

2. Residence Order(Section 19)

3. Monetary Relief(Section 20)

4. Custody Order(Section 21)

5. Compensation Order(Section 22)

6. Interim / Ex parteorder(Section 23)

7. Breach of Protection Order (Section31) Violation of the Protection Order cognizable and
non-bailable offence (Section 31-32).

Role of Protection Officer:

Protection Officer as a facilitator helps woman:

• In registering complaints in DIR (Form I)

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• Filing applications before the Magistrate for orders (Form II)

• Helping her in getting support like medical aid, shelter, legal aid, counseling etc.,

• Conducting field inquiries on court orders.

• Making sure that the orders passed by the court are enforced.

Shelter and medical assistance to the aggrieved person:

■ The shelter homes and the medical facility are under a legal obligation to provide shelter or
medical facility to the aggrieved person.

■ Copy of medical examination report is to be provided free of cost to the aggrieved person.

Form and manner of making complaint—

(Domestic Incident Report) and applications for relief under the PWDV Act

■ Complaints and applications under the Act can be made by filling in the prescribed forms.

■ The forms can be availed of from any source including Service Providers, Protection
Officers or Police Stations.

■ The aggrieved person has a right to seek assistance for filling in the forms or filing the
applications before the Court.

■ The aggrieved person can also file the complaint or applications directly before the Court.

■ In case the aggrieved person files the complaint or applications through the Protection
Officer or a Service Provider, she has a right to receive a copy of the complaint or the
applications free of cost.

■ The service of the notice or summons shall be by handing over the same to the respondent
or any male member of his family.
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■ The summons / notice can be delivered by registered post.

■ Court can direct service in accordance with the Code of Criminal Procedure or the Civil
Procedure Code or employ any other effective way of service in view of the facts and
circumstances of the case.

■ Appointment of counselors and counseling

■ The Court can direct counseling for an amicable of the matter by the parties.

■ Counseling can be directed on admission of alleged misconduct and undertaking not to

repeat the same by the respondent.

■ Enforcement of orders passed under the Act and consequences of breach of protection
order.

■ The breach of orders of the court under the Act shall amount to cognizable, non-bailable
offence warranting immediate arrest and summary trial.

Terrorism:

What is terrorism?

Terrorism is the most heniousactivites in the world.. The term "Terrorism" comes from the
French word Terrorisme, which is based on the Latin verb “terrere” (to cause to tremble). The
Jacobins cited this precedent when imposing a Reign of Terror during the French Revolution.
After the Jacobins lost power, the word "terrorist" became a term of abuse.In modern times
"Terrorism" usually refers to the killing of innocent people by a private group in such a way
as to create a media spectacle. In November 2004, a United Nations Security Council report
described terrorism as any act "Intended to cause death or serious bodily harm to civilians or
non-combatants with the purpose of intimidating a population or compelling a government or
an international organization to do or abstain from doing any act". In many countries, acts of
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terrorism are legally distinguished from criminal acts done for other purposes, and
"terrorism" is defined by statute.

History of terrorism in India:

Terrorism in India is started before india got independence on 1947 but that times terrorist
activites aim create a fear among the British Ruler and not killed the general People. So we
not called these freedom fighters as a terrorist but after 1947 the terrorism actitivites to kill
the innocent people. In early times the Kashmir, Punjab and North East Frontier part was
affected of terrorism. But in current cinario the terrorism scope has been increase. The
regions with long term terrorist activities today are Jammu and Kashmir, Mumbai, Central
India (Naxalism) and Seven Sister States (independence and autonomy movements). In the
past, the Punjab insurgency led to militant activities in the Indian state of Punjab as well as
the national capital Delhi.

In Indian concern for the terrorism, it is the main attribute of the terrorist activities in form of
religious terrorism. Religious terrorism is terrorism performed by groups or individuals, the
motivation of which is typically rooted in the based tenets. Terrorist acts throughout the
centuries have been performed on religious grounds with the hope to either spread or enforce
a system of belief, viewpoint or opinion. The terrorist activities in India primarily attributable
to Islamic, Hindu, Sikh, Christian and Naxalite radical movements. In current scenario the
domestic and external terrorist activities is increasing in India.

Laws related to terrorism in India:

Terrorism has immensely affected India. The reasons for terrorism in India may vary vastly
from religious cause and other things like poverty, unemployment and not developed etc.

The Indian Supreme Court took a note of it in Kartar Singh v. State of Punjab [1994] 3 SCC
569, where it observed that the country has been in the firm grip of spiralling terrorist
violence and is caught between deadly pangs of disruptive activities..
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Anti-terrorism laws in India have always been a subject of much controversy. One of the
arguments is that these laws stand in the way of fundamental rights of citizens guaranteed by
Part III of the Constitution. The anti-terrorist laws have been enacted before by the legislature
and upheld by the judiciary though not without reluctance. The intention was to enact these
statutes and bring them in force till the situation improves. The intention was not to make
these drastic measures a permanent feature of law of the land. But because of continuing
terrorist activities, the statutes have been reintroduced with requisite modifications.

Indian anti-terror law has evolved from the Unlawful Activities (Prevention) Act, 1967
(UAPA) through the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)
to the Prevention of Terrorism Act, 2002 (POTA).

Section 15 of the UAPA defines a ‘terrorist act’ as “whoever does any act with intent to
threaten or likely to threaten the unity, integrity, security [economic security] or sovereignty
of India or with intent to strike terror or likely to strike terror in the people or any section of
the people in India or in any foreign country”. Courts read these specific laws with various
sections of the Indian Penal Code, 1860.

In PUCL versus Union of India, the Supreme Court upheld the constitutional validity of
POTA as not “offending Article 19(1)(a) and 19(1)(c) of the Constitution of India”.

In Kasab versus State of Maharashtra, the Supreme Court approved the death sentence of
the terrorist given “the death penalty remains on the statute book as punishment for certain
offences, including waging war and murder.”
A Constitution bench in Kartar Singh versus State of Punjab, however, reaffirmed that “no
civilised democratic country has accepted confession made by an accused before a police
officer as voluntary and above suspicion, therefore, admissible in evidence.” Indeed, police
atrocities and coerced confessions violate the civil liberties of the accused. The lack of
evidence haunts investigating agencies that often use force, an unlawful means, to strengthen
their cases.

Since 2008, the National Investigation Agency Act has made the NIA the central counter-
terrorism law enforcement agency in India. Section 1(2)(a) of the NIA Act applies “to citizens
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of India outside India”. While terror financing keeps the NIA busy, currently it is
investigating about 63 cases involving jihad and ISIS in various states.

Meanwhile, the UAPA, with amendments in 2013, replaced TADA and POTA. Sections 20
and 38 of the UAPA define punishment for “any person who is a member of a terrorist gang
or a terrorist organisation” with imprisonment for 10 years. The schedule of the UAPA lists
banned organizations. Besides, the UAPA gives an additional 90 days to file charge sheets.
By 2018, the NIA has investigated roughly 185 cases; 37 cases have been finally or partially
decided in trial with convictions in 35 cases.

However, in September 2018, in Watali versus NIA, the Delhi High Court found “no
reasonable grounds to form an opinion” that “the accusations against the appellant under the
UAPA are prima facie true.” A day later, the Gujarat High Court, in Shaikh versus State of
Gujarat, after “minutely and objectively” reading “the evidence” found nothing to believe
that a “secret witness” to terrorist activity “committed any offence which renders him liable
to be tried along with other accused”. In November 2018, the Central Bureau of Investigation
expanded the ambit of terrorist activities by invoking the UAPA against persons accused of
killing Narendra Dabholkar.

Terrorism is often read with “secessionist activities” in Kashmir. For example, in Farooq
Ahmad Bhat versus State of Jammu & Kashmir, the high court noted the accused “to have
indulged in various terrorist and secessionist activities, aimed at seceding the State of Jammu
and Kashmir from the union of India.”

Significantly, Indian laws await prosecution of Indians for committing terrorism anywhere in
the world.

Marginal and Victimless Crimes:

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A victimless crime is an act that is illegal but has no direct victim. Typically, the parties
involved are voluntarily acting. Also, the parties may be consenting adults. Therefore, there is
no harm directly and specifically imposed upon another person and as a result, there is no
victim.

A characteristic feature of such laws is that since no third party is harmed, there is no one
who has an immediate interest in complaining to the police and presenting evidence against
the culprits.

Victimless crime is mainly related to awareness and unawareness of victim for crime. When
victim aware about crime and he or she knows he or she is a harmed and in this case he or she
is a victim of crime but when the victim is unaware of crime and harm caused to him it is a
case of victimless crime.

Consent leads awareness and if the subject of the crime is not harmed unless he becomes
aware of the crime, then such crime is victimless, i.e. the victim doesn’t know about crime
until he becomes aware of the crime. For e.g. a person trespassing through a neighbor’s yard,
without being observed or causing damage is committing the victimless crime.

Types:

 Prostitution
 Drug use
 Trespassing
 Traffic citations
 Gambling
 Bootlegging
 Public Drunkenness
 Gambling etc

Some activities that are considered victimless crimes in majority of jurisdictions are drug
abuse, bigamy, prostitution, ticket scalping etc. although it is debate as to whether they are
really “victimless” or not, while some are legally regarded as victimless, such as prostitution,
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stand in the forefront of debate over whether anyone harmed or not, physically, morally or
otherwise.

Health protection and youth protection is in interest of the society. Deceased people and
youth involved illicit activities can be causing of the degradation of nation thus it is
responsibility of society to protect health and youth thus it made laws in above matters.

There is a debate on whether prosecution to consensual crimes should be maintained or

should they be decriminalized. There are several arguments for maintaining the prosecution
of victimless crime, such as costs, but the main thrust of maintaining prosecution tends to be
rooted in arguing that society as a whole is enhanced by locking up victimless criminal
offenders.

The reason being:

1. By decriminalizing such activities like drug abuse, no seat belt etc. although the cost of law
enforcement would be controlled but the other costs would become unacceptably high.

2. Decriminalizing such acts would cost the core values of the society and overall diminish
the quality of life and causing real harm to the society.

Conclusion:

(1) Victimless crime doesn’t harm third party person thus there is problem of complaining of
it and evidence while prosecuting.

(2) When the victim is unaware of crime and harm caused to him it is a case of victimless
crime.

(3) There are kind of victimless crimes as suicide, truancy or drug use, Traffic citations,
prostitution, pornography and gambling etc.
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(4) Victimless crimes normally don’t harm the individual but harms society at large.

(5) Victimless crimes can capable of creating gang subculture because of involvement of
demand and money.

(6) In criminalizing victimless crime acts, society makes a judgment that there can be no
privacy interest in those acts.

(7) Victimless crime has importance of consent and because of it is an offence of private
nature not involving society at large like prostitution but it is against the social norms thus
though it is private and with consent society interferes with it with instrument of law.

(8) Health protection and youth protection is in interest of the society thus legal instruments
penalize victimless crime which is against health and youth protection.

(9) Victimless crime criminalized for the quality of life and causing no real harm to the
society.

NDPS Act:

The Narcotic Drugs and Psychotropic Substances (NDPS) Act came into force on
November 14, 1985, and has become the statute under which all cases relating to possession,
consumption, and sale of ‘Narcotic drugs’ are prosecuted. However, it is necessary to
understand that this Act has evolved over the years, and has been amended thrice (1988, 2001
and 2014) which has changed its scope and direction. The Prevention of Illicit Trafficking in
Narcotic Drugs and Psychotropic Substances Act was passed in 1988 and was brought in to
ensure full implementation and enforcement of the NDPS act. This article traces the roots of
the NDPS, highlight the kinds of cases that are booked under the NDPS and explain the
various anomalies that exist in the NDPS with relation to State legislations.

History of NDPS:

Before 1985, there was no law which criminalised the possession and use of drugs, and so the
social convention prevailed. Religious and mythological history had references to the usage
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of drugs, and throughout India marijuana and its various derivatives were sold freely, and
were viewed in the same light as alcohol, and consumed, albeit in different forms. It is
believed that one of the reasons behind the NDPS coming into force is the Single Convention
on Narcotic Drugs which was an international treaty drafted in 1961. The Convention aimed
at preventing the production and sale of specified narcotic substances. It was far broader in its
scope than previous treaties because it covered newer drugs that did not exist when the
previous treaties had been drafted. However, the Convention is not in itself applicable to any
nation, but instead recommends nations to adopt similar measures. Such laws were amended
by the US in the form of the Controlled Substances Act and by the UK through the Misuse of
Drugs Act. India did not buckle under international pressure, particularly from America, and
kept the sale of marijuana for nearly 25 years. However, as the War on Drugs gained
momentum and India’s economic position weakened, Rajiv Gandhi-led administration had to
finally buckle under the pressure and the NDPS Bill was introduced on August 23, 1985, and
assented by the President on September 16, 1985.

The NDPS Act of 1985:

The NDPS Act contains 5 Chapters, with each chapter dealing with a certain subject with
respect to the statute. The first chapter serves as a Preliminary chapter, introducing and
defining the various narcotic drugs and psychotropic substances, and finally highlighting that
the Central government has the power to omit or add other substances to the list under the
NDPS Act.

The second chapter highlights the relevant Authorities and Officers that have been created
under the NDPS Act. It also sets the guidelines for the Central government to appoint a
Narcotics Commissioner, to set up a Narcotic Drugs and Psychotropic Substances
Consultative Committee and to fund a National Fund for Control of Drug Abuse.

The third chapter lays out the Prohibition, Control and Regulation of the previously
mentioned substances. It prevents the cultivation or production of the coca plant, opium
poppy or any cannabis plant by anybody, while reserving these rights with both the Central
and State governments if they wish to do so, by creating rules later. Furthermore, all Inter-
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State and International smuggling of such substances have been prohibited. Finally, this
chapter looks at the regulation on other controlled substance that can be used to create
narcotic drugs and also has clauses which illustrate cases under which opium poppy, coca
plant, and cannabis plant can be legally cultivated.

Chapter four deals with the Offences and Penalties under the NDPS Act. It describes with
punishment duration the various possible crimes that can be tried under this Act, such as
possession of such substances, for commercial or recreational use, cultivation or preparation
of such substances and smuggling of such substances.

The fifth chapter looks at the Procedure of how the cases are to be dealt with, and also set the
guidelines for the officers empowered under this Act.

Establishment of specialized courts:

When the NDPS Act was in its infancy, cases pertaining to the offences delineated in the Act
were dealt with by conventional Sessions Courts. However, this further exacerbated the
problem of judicial overburden which has plagued Indian courts for decades. In order to
remedy this problem, the Government of India vide an amendment to the NDPS Act in 1989
paved the way for the establishment of specialized courts to deal with offences set out in the
Act. Sec. 36 of the Act empowers the government to set up as many Special Courts as it
deems fit for the expeditious resolution of disputes. The Special Court consists of a single
judge who is appointed with the concurrence of the Chief Justice of the concerned High
Court and who must be a sitting Sessions Judge or Additional Sessions Judge at the time of
his appointment. A Special Court has the same powers as the Magistrate when cases are
forwarded to it. The Special Court is empowered to take cognizance of any offence under the
Act on the basis of a report submitted to it by the relevant police authority or any complaint
made by officers in the central or state government who are authorized to make such
complaints. Even though Special Courts have played a pivotal role in the effective
implementation of the NDPS Act, they have not been able to develop efficacious strategies
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for grappling with the systemic challenges that are faced by courts across the country. For
example, even though Mumbai has 8 Special Courts, most cases come up for trial only after
2-3 years.

An overview of key offences and punishments:

The quantum of punishment under the NDPS Act is based on the quantity of drugs found
which may be classified into 3 categories: small, less than commercial and commercial. As a
result, the punishment may be as low as rigorous imprisonment for one year if the drugs
found are in small quantity and as high as 20 years imprisonment for a large quantity of
drugs. The amount of small and commercial quantity is specified by the Central Government.
The quantity for some common drugs is as follows:
A. Amphetamine: small quantity – 2 grams, commercial quantity – 50 grams.
B. Cocaine: small quantity – 2 grams, commercial quantity – 100 grams.
C. Codeine: small quantity – 10 grams, commercial quantity – 1 kg.
D. Ganja: small quantity – 1 kg, commercial quantity – 20 kg.
E. Heroin: small quantity – 5 grams, commercial quantity – 250 grams.
F. Morphine: small quantity – 5 grams, commercial quantity – 250 grams.
G. Poppy straw: small quantity – 1 kg, commercial quantity – 50 kg.

Sec. 8 of the Act explicitly prohibits the cultivation of opium, poppy, coca or cannabis plants
as well as the production, manufacture, distribution including warehousing, transport,
purchasing and selling of prohibited drugs and psychotropic substances. It also prohibits their
financing as well as consumption and harboring offenders guilty under the Act. As per Sec.
19, any farmer who cultivates opium in accordance with a license but embezzles it shall be
punished with rigorous imprisonment for a term ranging between 10 and 20 years and shall
also be liable to pay a fine ranging between Rs. 1 and 2 lakh rupees. The production,
manufacture, possession, sale, purchase, transport, import and export among states or use of
narcotic drugs and psychotropic substances such as poppy straw, prepared opium, opium
poppy, cannabis, etc shall result in:
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 In case of small quantity, rigorous imprisonment up to one year with/ without fine up
to Rs. 10,000;
 In case the quantity is between small and commercial, rigorous imprisonment up to 10
years and fine up to Rs. 1 lakh; and
 In cases involving commercial quantity, rigorous imprisonment between 10-20 years
and fine ranging between Rs. 1 and 2 lakh rupees.

However, if the contravention pertains to ganja, the punishment would be significantly less
i.e. rigorous imprisonment for a term which may extend up to 5 years and fine up to Rs.
50,000. In all the aforementioned cases, the court can increase the fine by recording the
reasons for the same in the judgment.
As per Sec. 23, any person who engages in illegal import/ export/ transshipmentof narcotic
drugs/psychotropic substances shall have to face punishment ranging between rigorous
imprisonment for 1 to 20 years and fine ranging between Rs. 10,000 and Rs. 2 lakh based on
the quantity of the prohibited substance. Sec. 24 clearly states that any person who engages in
external dealings in contravention of the Act shall be punished with rigorous imprisonment
ranging between 10-20 years and fine ranging between 1-2 lakh rupees. Any person who
knowingly allows his premises to be used for the commission of any offence under the Act
shall be punished with rigorous imprisonment ranging between 10-20 years and fine ranging
between 1 and 2 lakh rupees. Any person financing illicit traffic or harboring an offender
shall also face the same punishment. In case a person consumes a narcotic drug or
psychotropic substance; the punishment would vary depending on the substance consumed. If
the substance consumed is cocaine, morphine or diacetyl-morphine, then the punishment
would be rigorous imprisonment up to 1 year with or without fine up to Rs. 20,000. If the
accused consumes any other substance, he would have to face rigorous imprisonment up to
six months with or without fine up to Rs. 10,000. The court is empowered to send any person
who is imprisoned for consumption of drugs to an appropriate medical centre for seeking
necessary treatment. Agencies seizing the drugs are required to destroy them suitably in the
prescribed manner. In addition, if the accused is found to have any illegal property, it shall be
forfeited to the central government. The proceeds from the sale of such illegally acquired
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properties shall be pooled into the National Fund for Control of Drug Abuse in order to
facilitate the treatment of drug addicts and to promote initiatives for drug control.

Punishment for repeat offences:

As drug abuse is often a habitual problem for those who engage in it, the Act imposes a far
stricter punishment on repeat offenders. Broadly speaking, the punishment for repeat offences
can be up to one and half times the quantum of punishment for the first offence. As a result,
the punishment would vary from 1.5 years of rigorous imprisonment to 30 years of rigorous
imprisonment depending on the gravity of the offence. Similarly, the quantum of fine for a
subsequent conviction would also be up to one and half times the fine for the first offence.
One provision pertaining to punishments for second convictions which has been hotly
debated pertained to the death penalty embodied in Sec. 31A of the Act. Before the 2014
amendment, the Act provided for a mandatory death sentence if the quantity of drugs
involved in an offence committed after the first conviction exceeded a certain threshold. For
example, the threshold is 10 kg in case of Opium and 1 kg in case of Morphine and Heroin.
However, in a move that was widely hailed by the human rights community, the 2014
amendment made it abundantly clear that the death penalty can be imposed as a substitute for
the other punishments that have been set out in the Act for a repeat offender; its application
isn’t mandatory. Many experts have repeatedly argued for the complete removal of the death
penalty from the NDPS Act. The penalty seeks to take life, the argument goes, for an offence
that doesn’t result in the taking of life. Presently, reports indicate that drug control laws in 32
countries provide for the death penalty in rare cases. However, a closer inspection of drug
markets in these countries shows that the death penalty has not acted as a sufficient deterrent
for preventing the surreptitious practices that these laws seek to control.

Procedural safeguards in the NDPS Act:

Since the NDPS Act gives extensive powers to law enforcement agencies to clamp down on
malpractices connected with drug abuse, it also seeks to put in place adequate safeguards to
prevent innocent civilians from being unnecessarily harassed. Any person making an arrest or
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seizure under the Act is, therefore, required to make an extensive report containing all
relevant details which must be sent to his immediate superior. Similarly, Sec. 100 of the
CRPC states that any police officer who wishes to search any person who is believed to be
concealing something suspicious must do so only in the presence of at least 2 respectable
inhabitants of that locality known as panchas. Thereafter, a statement containing the details
of the search and seizure, with the signature of the panchas, must be given to the accused of
his perusal. Sec. 55 of the NDPS Act imposes an obligation on the police officer seizing the
prohibited substances to keep them in safe custody. They must contain the seal of the officer
seizing them as well as the officer-in-charge of the police station. Sec. 50 of the Act gives the
accused the right to be searched in the presence of the magistrate or a gazetted officer. This
right has been upheld by the Supreme Court in the case of State of Punjab V. Balbir
Singh 1994 AIR 1872 where it was held that the police officer must, of necessity, inform the
accused about this right. Finally, Sec. 58 imposes strict punishments on people making
vexatious or frivolous complaints.

Access to medicinal drugs:

Even though the Act carves out exceptions in all relevant places for allowing the use of drugs
for scientific or medical purposes, it is dismaying to note that the Act has significantly
undermined the ability of healthcare institutions to gain access to essential narcotic drugs for
the benefit of their patients. This problem is primarily attributed to the fact that the Act
requires these institutions to obtain licenses from a plethora of regulatory agencies that deal
with issues related to excise, drug control, health administration, etc. The red-tapes involved
in the grant of licenses coupled with their short tenure makes it very difficult for medical
institutions to maintain large amounts of drugs that are often the only solution for lessening
the pain of terminally ill patients. In order to circumvent this problem, the 2014 amendment
seeks to put in place a single window clearance system in accordance with which every
hospital which is in need of these drugs would be granted the status of a Recognized Medical
Institution (RMI). It seeks to create a special category of drugs called Essential Narcotic
Drugs whose use would be largely regulated by the central government. These provisions, it
is hoped, will help in streamlining conflicting provisions that grapple with the acquisition of
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licenses and will go a long way in striking the right balance between ‘availability’ and
‘control’.

Rehabilitation of drug addicts

Another area in which the law has been heavily criticized pertains to the limited importance
that it attaches to the health of drug users who require special care and treatment. The law
only focuses on reducing the supply of drugs; the argument goes, and not on putting in place
a robust framework for reducing their demand which would be a more sustainable solution in
the long run. In order to address this concern, the 2014 amendment seeks to strengthen
existing provisions pertaining to the establishment and working of centres for the
identification and treatment of addicts. The amendment focuses on the management of drug
dependents and paves the way for the accreditation of treatment centres by relevant
government authorities. Treatment centres need to adopt global best practices and harm
reduction techniques in order to deal with this problem in a systematic and holistic manner.

Agencies responsible for effective administration of the law

The Department of Social Welfare has been declared as the nodal agency that monitors the
initiatives undertaken by various organizations, public and private, for spreading greater
awareness about the deleterious effects of drug abuse. A central agency, known as the
Narcotics Control Bureau, is tasked with the responsibility of overseeing the activities
undertaken by various law enforcement agencies and to ensure constant compliance with
various international instruments that India has signed. The Ministry of Welfare is responsible
for taking appropriate steps to prevent the occurrence of circumstances that result in this
menace. More specifically, it is responsible for disseminating information about drug abuse,
undertaking drives at the local, state and national level to spread greater awareness and to
form a broad coalition of various stakeholders to attack the problem at its root. It is also
responsible for providing medical assistance to drug addicts and to put in place systems for
identifying drug users at an early stage in order to take corrective measures. Finally, the
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Ministry of Finance looks into cases grappling with drug trafficking, money laundering and
other offences which are closely linked with drug abuse.

Case Laws:

1. Iqbal Moosa Patel Versus State of Gujarat 2011(1) RCR (Criminal) 473 (SC)-
Sections 21, 29, 8(c) NDPS Act, 1985, Sections 103, 102 Indian Evidence Act, 1872-

It was held by Hon'ble apex Court that “proof beyond reasonable doubt does not mean proof
beyond a shadow of a doubt. The law would fail to protect the community if it permitted
fanciful possibilities to deflect the course of justice.”

2. Jagdish Rai Vs. State of Punjab AIR 2011 SC 1568-Sections 35,54-

“Appellant driving motorcycle. On intercepted by the police, appellant tried to turn away and
flee. It can be presumed that appellant was conscious of the fact that pillion rider is carrying
opium.”

(3) Roop Singh Vs. State of Punjab 1996(1) R.C.R. (Cr.) 146 (P&H) (Division Bench)-

“Giving up of independent witness by the prosecution in the present day situation prevailing
in the society is fully justified and no adverse inference can be drawn against the
prosecution.”

(4) Davinder Kumar Vs. State of Punjab 2012(2) R.C.R. (Cr.) 600 (DB)-Sections 42,43-
“when recovery of contraband is effected from the vehicle in transit, Section 43 of the Act
shall apply and not Section 42”.
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(5) Dharampal Singh Vs. State of Punjab (2010) 9 SCC 608- Sections 18,35,54- Under
Section 18- “Once possession is established, accused who claims that it was not a conscious
possession, has to establish that it was not, because it is with in his special knowledge”.

(6) Akmal Ahmed Versus State of Delhi 1999 Criminal Law Journal, 2041 (SC)-“The
evidence of search or seizure, made by the police, will not become vitiated solely for the
reasons that the same was not supported by an independent witness”.

(7) State of Punjab Versus Baldev Singh 1999(6) SCC 172-“drug abuse is a social malady.
While drug addiction eats into the vitals of the society, drug trafficking not only eats into the
vitals of the economy of a country, but illicit money generated by drug trafficking is often
used for illegal activities including encouragement of terrorism. It has acquired the
dimensions of an epidemic, affecting the economic policies of the State, corrupts the system
and is detrimental to the future of a country”.

(8) State of Himachal Pradesh Versus Pawan Kumar 2005(2) RCR (Criminal) 621- “those
who indulge in this kind of nefarious activities should not go Scot free on technical pleas
which come handy to their advantage in a fraction of second”.

(9) It is held in Arif Khan @ Agha Khan Vs. State of Uttarakhand 2018(2) R.C.R.
(Criminal) 931by Hon'ble apex Court that “it is mandatory on the part of authorized officer to
make suspect aware of existence of his right to be searched before Gazetted Officer or
Magistrate, if so required by him and this requires struck compliance. Evidence adduced by
prosecution neither suggested nor proved that search and recovery made in presence of
magistrate or gazetted officer. Accused entitled for benefit of doubt.”

10. In State of Haryana Versus Jarnail Singh, 2004(2) RCR Criminal 960,Hon'ble Apex
Court held that Section 50 is applicable only when personal search of accused is made. When
search is made from vehicle Section 50 has no applicability.

Computer Crimes:
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Cyber terrorists usually use the computer as a tool, target, or both for their unlawful act either
to gain information which can result in heavy loss/damage to the owner of that intangible
sensitive information. Internet is one of the means by which the offenders can gain such price
sensitive information of companies, firms, individuals, banks, intellectual property crimes
(such as stealing new product plans, its description, market programme plans, list of
customers etc.), selling illegal articles, pornography etc. this is done through many methods
such as phishing, spoofing, pharming, internet phising, wire transfer etc. and use it to their
own advantage without the consent of the individual.

Many banks, financial institutions, investment houses, brokering firms etc. are being
victimised and threatened by the cyber terrorists to pay extortion money to keep their
sensitive information intact to avoid huge damages. And its been reported that many
institutions in US, Britain and Europe have secretly paid them to prevent huge meltdown or
collapse of confidence among their consumers.

Types of Cyber Crimes

When any crime is committed over the Internet it is referred to as a cyber crime. There are
many types of cyber crimes and the most common ones are explained below:

Hacking: This is a type of crime wherein a person’s computer is broken into so that his
personal or sensitive information can be accessed. In the United States, hacking is classified
as a felony and punishable as such. This is different from ethical hacking, which many
organizations use to check their Internet security protection. In hacking, the criminal uses a
variety of software to enter a person’s computer and the person may not be aware that his
computer is being accessed from a remote location.
Theft: This crime occurs when a person violates copyrights and downloads music, movies,
games and software. There are even peer sharing websites which encourage software piracy
and many of these websites are now being targeted by the FBI. Today, the justice system is
addressing this cyber crime and there are laws that prevent people from illegal downloading.
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Cyber Stalking: This is a kind of online harassment wherein the victim is subjected to a
barrage of online messages and emails. Typically, these stalkers know their victims and
instead of resorting to offline stalking, they use the Internet to stalk. However, if they notice
that cyber stalking is not having the desired effect, they begin offline stalking along with
cyber stalking to make the victims’ lives more miserable.
Identity Theft: This has become a major problem with people using the Internet for cash
transactions and banking services. In this cyber crime, a criminal accesses data about a
person’s bank account, credit cards, Social Security, debit card and other sensitive
information to siphon money or to buy things online in the victim’s name. It can result in
major financial losses for the victim and even spoil the victim’s credit history.
Malicious Software: These are Internet-based software or programs that are used to disrupt a
network. The software is used to gain access to a system to steal sensitive information or data
or causing damage to software present in the system.
Child soliciting and Abuse: This is also a type of cyber crime wherein criminals solicit
minors via chat rooms for the purpose of child pornography. The FBI has been spending a lot
of time monitoring chat rooms frequented by children with the hopes of reducing and
preventing child abuse and soliciting.

Causes of Cyber Crime

Wherever the rate of return on investment is high and the risk is low, you are bound to find
people willing to take advantage of the situation. This is exactly what happens in cyber crime.
Accessing sensitive information and data and using it means a rich harvest of returns and
catching such criminals is difficult. Hence, this has led to a rise in cyber crime across the
world.

The Information Technology Act, 2000:

The ITAct-2000 defines 'computer' as any electronic magnetic, optical or other highspeed
data processing device or system which performs logical, arithmetic, and memory functions
by manipulations of electronic, magnetic or optical impulses, and includes all input, output,
processing, storage, computer software, or communication facilities which are connected or
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related to the computer in a computer system or computer network. The word 'computer' and
'computer system' have been so widely defined and therefore, any high-end programmable
gadgets like even a washing machine or switches and routers used in a network can all be
brought under the definition. The Information Technology Act, 2000 (ITAct- 2000) was
enacted by Parliament of India to protect the field of e-commerce, e-governance, e-banking
as well as to provide for penalties and punishments in the field of cyber crimes. The above
Act was further amended by the Information Technology (Amendment) Act, 2008
(ITAAct2008). The word 'communication devices' was inserted in the definition, to include
into its coverage cell phones, personal digital assistance or such other devices used to
transmit any text, video etc. like those which were later being marketed as iPad or other
similar devices on Wi-fi and cellular models. ITAct- 2000 defined 'digital signature', but the
said definition was incapable to cater to needs of the hour and therefore, the term 'Electronic
signature' was introduced and defined in the ITAct - 2008 as a legally valid mode of
executing signatures. This includes digital signatures as one of the modes of signatures and is
far broader in ambit covering biometrics and other new forms of creating electronic
signatures. The new amendment has replaced Section 43 by Section 66. The word "hacking"
used in Section 66 of earlier Act of 2000 was removed and named as "data theft" and
consequently widened in the form of Sections 66A to 66F. The section covers the offences
such as the sending of offensive messages through communication service, misleading the
recipient of the origin of such messages, dishonestly receiving stolen computers or other
communication device, stealing electronic signature or identity such as using another
person’s password or electronic signature, cheating by personation through computer
resource or a communication device, publiclypublishing the information about any person's
location without prior permission or consent, cyber terrorism, the acts of access to a computer
resource without authorization, such acts which can lead to any injury to any person or result
in damage or destruction of any property, while trying to contaminate the computer through
any virus like Trojan etc. The offences covered under Section 66 are cognizable and
nonbailable. It may be pointed here that the consequence of Section 43 of earlier Act was
civil in nature having its remedy in the form of damages and compensation only Under
Section 66 of the Amendment Act, 2008 if an act is done with mens rea i.e. criminal
intention, it will attract criminal liability resulting in imprisonment or fine or both. The law of
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defamation under Section 499 got extended to "Speech" and "Documents" in electronic form
with the enactment of the Information Technology Act, 2000. Section 66A of the Information
Technology Act, 2000. Any person who sends, by means of a computer resource or a
communication device:- (i) any information that is grossly offensive or has menacing
character; or (ii) any content information which he knows to be false, but for the purpose of
causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation,
enmity, hatred, or ill will, persistently makes by making use of such computer resource or a
communication device, or (iii) any electronic mail or electronic mail message for the purpose
of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient
about the origin of such messages, shall be punishable with imprisonment for a term which
may extend to three years and with fine. Section 66A of the Information Act, 2000 does not
specifically deal with the offence of cyber defamation but it makes punishable the act of
sending grossly offensive material for causing insult, injury or criminal intimidation.

Punishment for damage to computer system and hacking: According to Section: 43 of

‘Information Technology Act, 2000’ whoever does any act or destroys, deletes, alters and
disrupts or causes disruption of any computer with the intention of damaging of the whole
data of the computer system without the permission of the owner of the computer, shall be
liable to pay fine upto 1crore to the person so affected by way of remedy. Section 43A which
is inserted by ‘Information Technology(Amendment) Act, 2008’ provides that where a body
corporate is maintaining and protecting the data of the persons as provided by the Central
Government, if there is any negligent act or failure in protecting the data/ information, a body
corporate shall be liable to pay compensation to the person so affected. Section 66 deals with
‘hacking with computer system’ and provides for imprisonment up to 3 years or with fine,
which may extend up to 2 lakh rupees or with both.

Unit 4

The Police and Criminal Justice System

Introduction:
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In ancient India governance was based on Dharma and Danda. Dandaneeti i.e., the law of
punishing the evil-doer,was an important character of statecraft. The general control over
people was exercised through the armed forces functioning under the sovereign. During
Mauryan and Gupta periods, policing was undertaken systematically. Kautilya’s ‘Arthasastra’
describes the nature of police organisation and their functions. Moghul period saw the growth
of Fauzdari System, where Kotwals and Thanedars were controlling law and order. The
period of British rule witnessed the emergence of a centralised police force, which enforced a
large number of penal laws and also maintained the might and authority of government.

The present Indian Police System is based on the Police Act of 1861; under this Act, the
police was made subordinate to the executive government, and the same position continues.
In 1903 and 1907, several changes were brought about in the structure as well as functioning
of the police system. After Independence the police force in our country was charged with the
responsibility of maintaining public order and preventing and detecting crime Under Art 246
of the Constitution of India, police and public order are made state subjects, hence the police
in India is maintained and controlled by the states.

Organisation and Structure:

Police administration is a state responsibility. However, the union government’s role in police
administration- relates to making laws and making amendments to basic police laws like
Indian Penal Code, Management of Indian Police Service etc. The Central Government also
assists the state governments in maintaining law and order through its reserve units, like the
Central Reserve Police Force, Border Security Force, Railway Protection Force, Central
Industrial Security Force etc. Central Bureau of Investigation (CBI) and Central Intelligence
Bureau (CIB) also provide assistance to the state police organisations in the fields of law and
order, security and administration of justice.

Police structure in state

At the state level, police administration is more or less uniform throughout the country. The
Home Department coordinates and supervises the police administration. The real work of
police administration is undertaken by the Director General of Police/Inspector General of
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Police. The police set-up in big cities like Delhi, Kolkata, Mumbai, Chennai, Hyderabad etc.
is directly under the Commissioner of Police.

The state is divided into territorial divisions called ranges. A number of districts constitute a
range. Each district police is further subdivided into police divisions, circles and police-
stations.

Range Level:
Each range is headed by Deputy Inspector General of Police. Each Police range comprises a
few districts, which may vary from 2 to 8 depending upon the size, population and
importance of the district. A major function of the DIG is to coordinate the activities of
district police and to take measures for inter-district cooperation. He also ensures harmonious
relation between the police and executive magistrates.

District and Sub-District level

In police administration district plays a pivotal role. All the laws and rules passed by the
police are transformed into action at this level. Superintendent of Police (SP) is responsible
for the maintenance of law and order and other law enforcement activities of the district.
Technically, SP functions under the overall control of the Collector, but he and his
subordinate officers in practice enjoy operational autonomy in the discharge of their
functions. To provide assistance to the police, a number of units like the home-guards, the
women police, crime branch, dog-squad etc. function at the district level.

For operational convenience the district police organisation is divided into a number of
subdivisions. Sub-divisions are further divided into police-circles. Each circle may have 3 to
10 police stations. While the Deputy Superintended of Police or Additional Superintendent of
Police is in charge of sub-division, the Inspector of Police is the head of the Police Circle.
The police station is the lowest tier in the police organisation. It is the basic and primary unit,
responsible for maintenance of law and order, prevention and control of crime and protection
of life and property of the community.
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All senior police posts in states are taken from Indian Police Service (IPs) cadre, to which
recruitment “is made on all India basis. Recruitment and promotion of lower posts from
Police Constables upto Deputy Superintendent of police are the responsibility of the state
governments.

At the state level, the role of the police officers even in the line hierarchy gets
transformed in staff functions, which they have to perform at three distinct levels as
follows:

(1) Staff functions in the Union government and its auxiliary agencies;

(2) Staff functions in relation to home department of the state government; and

(3) Staff-cum-line functions in relation to the line officials in the districts.

The police administration at the state level consists of two organisational wings:
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(i) The civil and

(ii) The professional.

Custodial Death:

The concept of custodial death is not new for the Indian society. Since the British rule, people
have been dying in the police custody during investigation. India has time and again
witnessed the basic fundamental rights of the prisoners being shattered and the use of
coercion and torture to take the favourable statement. The police administration is always
criticized for custodial deaths, torture, and the use of unlawful means during the
investigations. Wikipedia describes the term ‘custodial death’ as ‘death of a person in the
custody of the police, prison service or other authorities. It’s legal validity is till date a
controversial issue and is always debated as the popular retributive-deterrent philosophy has
validated this incarcerational barbarity. Though the authorities are legally bound to provide
adequate necessary amenities and ensure the safety of the inmates by providing them a
healthy environment which includes timely medical assistance, but the real scenario is
different from what the legal implications suggest. It is also seen that mostly the persons
belonging to poor sections of the society or the ones that from the depressed castes face this
cruelty in prison.

Domestic and International Scenario:

The issue of premature death in prison exists not only in the domestic spaces but is also found
in the international scenario. Countries such as Bangladesh, Algeria, Argentina, Burma are
aware of the presence of this evil practice on their territories. Even the United States of
America is not untouched by the issue of custodial violence. 38 deaths in Police custody have
been reported in England and Wales between April 2003 to March 2004, as shown by a Joint
Committee on Human Rights under the authority of House of Lords and House of Commons
in 2004.Amnesty International, in one of their articles in 2013 urged the Malaysian
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authorities to take immediately steps against the rising number of deaths in police custody,
some of which were caused by torture and others by ill-treatment.

The situation in India is not very different from the international one. The Times of India, in
November 2013, stated that in the preceding five years, around 12000 people suffered tragic
end due to torture that is done on them either in jail or police stations.As per the official data,
there were 32 deaths in police custody or disappearance of persons from detention who were
remanded to such custody by the Court during the year 2014. Among these, the highest were
reported in Andhra Pradesh (16). These were the ones who had been sent by the Court under
the order of remand. National Crime Records Bureau reports on its official website that there
were in total 61 deaths or disappearances of persons from police custody in 2014. These were
the people who were not sent by the Court to remand. These figures depicted a decline of
37.1% over the preceding year (2013) when this number rose to 97.In their research study, the
Police Complaints Authority (PCA) has mentioned about extreme vulnerability of those who
die in the police custody and have found that in the period 1998-2003, there was an over-
representation of ethnic minorities in deaths in police custody.

Illegal Arrest and Detention:

The powers given to the Police administration for the purpose of dealing with the crimes in
the society are many times used by them to implicate innocent and poor people in false and
fabricated cases under local and special laws such as, Excise Act, Arms Act, Gambling Act,
Suppression of Immoral Traffic Act, Motor Vehicle Act etc. And it is an accepted fact that
such arrests mostly lead to immense physical and mental torture on the person arrested, due
to which, he/she ultimately commits suicide in the prison or dies because of the torture. The
National Police Commission in 1981 admitted that around 60% of total arrests made by the
police are unnecessary and unjustified.

One of the most reported cases regarding illegal detention was of the two Adivasi boys by
Kerala Police in the year 2004-05, where the Christian Cultural Forum, Kollam, Kerala,
submitted a complaint alleging that police officials of Agali in Attappaddi in Palakkad district
of Kerala arrested three ‘Adivasis,’ Manikandan, Parameswaran and Kuppama on 25.5.1997
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and as per the facts, they were kept in illegal custody for 23 days. Kuppama, one of these
people was female and was beaten black and blue by the police. Chilli powder was stuffed
into her vagina and as per the complainant, the Circle Inspector had falsely implicated around
100 Adivasis in fabricated cases. There was a feeling of terror in the Adivasis due to which
they were forced to leave their houses.

Another incident took place in the year 1997-98 in the state of Rajasthan, where Shri. Baba
Khan of Kota had alleged in his complaint that there were illegal detention and torture by the
police and reported that he nad his two brother-in-laws were forcibly taken away by the
police authorities, detained and tortured severely. The cognizance was taken for this
complaint and the Chief Secretary along with the Director General of Police, Rajasthan were
asked to submit a report. The report submitted by the State Police stated that the allegations
were baseless and false but disregarding this; the Commission ordered an investigation into
the matter. The investigation division established that the accusations were prima facie true.

Other cases mentioned by the National Human Rights Commission include the case of Shri.
Raghubir Yadav of Uttar Pradesh, abduction of Rama Rao by Andhra Police, illegal detention
of Anil Kumar and D.M. Regeof Maharashtra. Joginder Kumar vs. State of Uttar
Pradesh and D.K. Basu vs. State of West Bengal.

What Causes of Custodial Violence?

Police system is the main arm of the democracy that deals with the common man directly.
Hence, there arises an urgent need to prevent abuse of the power and direct it in the right
direction. To achieve this, it is primarily very essential to study the reasons behind the
problem of custodial violence. Under what circumstances, does an educated officer of law
resorts to such inhuman tactics?

Work Pressure

Also, insurgent groups, which are nowadays cause chaos and massacre in many areas, consist
of well-trained criminals who are highly motivated to their cause and do not reveal any
information quickly.
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In such a situation, the mental pressure becomes a reason for adopting brutality as a means to
retrieve information from criminals. Further, we have been gifted with a concept embodied in
the basic structure of our legal system which suggests that until and unless the guilt is proved
beyond reasonable doubt. There are really few instances where this doctrine affects the law in
a negative way. Because these restrictions are there, police at times fail to derive information
from such hardened criminals and thus have no hard evidence in the court of law. Ultimately,
the real culprit walks unharmed.

To Show Results

Once a case is recorded in the Police Diary, its status has to be filed in the court. To show
better results, they sometimes resort to illegal arrests, unlawful confinement or detention of
people and prove case against them. This has a dual effect on the legal system. First, the
wrong person is detained and hence his liberties are violated, secondly, the real statistics
about crimes are prevented from being come out, which effects the formulation of effective
policies for that area. The legal system can never achieve its basic aim of justice, if such a
situation persists for long.

Reformation

Sometimes, the police have to resort to the tactics of violence, to prevent the criminal from
committing the crime again. They believe that showing the worse consequences of the act
will create fear in the mind of the culprit and thus prevents the possibility of committing it
again. The fear of the third-degree methods also changes the perceptions of his subordinates
of getting away easily. In some cases, brutal tactics produce the above-desired result but in
most situations, the aim is not achieved.

Punitive Violence:

There are a few misguided, although honest, police officers who believe in not letting the
criminal go away unpunished. Such people believe that there is no better way of ensuring this
but by the use of third-degree torture methods. Usually, an officer who is morally affected by
witnessing the crime wants to punish the culprit. Although, they do it for the betterment of
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the society, they have to face accusations of illegal detention and torture and have to prove it
in their favour.

Laws for Prevention of Custodial Deaths in India:

The Indian legislature has taken some steps in the form of Acts, Bills, and Suggestions, which
aim at preventing the custodial deaths:

 The Prevention of Torture Bill, 2010 has been introduced in the Parliament, and
Rajya Sabha has recently presented a report on it.
 The National Human Rights Commission has issued guidelines to be followed in
case of custodial deaths and rape.
 NHRC has also issued guidelines for magisterial inquiry in the cases of custodial
death.

Certainly, the present custodial laws have not been able to direct the practice of use of third-
degree methods in the right direction. The current situation in our country is that whenever a
prisoner dies in the police custody, the first blame comes from the police authorities. Before
blaming them or any other person or body, the circumstances of which the death was caused
must be ascertained. It is not suggested that not getting required information from the
criminal should be made a ground for giving legal validity to this method. Also, it is the duty
of the prison administration to provide proper facilities of medical, infrastructure, sanitation,
food, security to the prisoners and a monitory body to only review it but also keep an eye on
the other activities inside the prison.

Criminal Justice System:

The criminal justice system is the set of agencies and processes established by governments
to control crime and impose penalties on those who violate laws. There is no single criminal
justice system in the United States but rather many similar, individual systems. How the
criminal justice system works in each area depends on the jurisdiction that is in charge: city,
county, state, federal or tribal government or military installation. Different jurisdictions have
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different laws, agencies, and ways of managing criminal justice processes.1 The main
systems are:

State: State criminal justice systems handle crimes committed within their state boundaries.

Federal: The federal criminal justice system handles crimes committed on federal property
or in more than one state.

System Components of Criminal Justice System:

Most criminal justice systems have five components-law enforcement, prosecution, defense
attorneys, courts, and corrections, each playing a key role in the criminal justice process.

Law Enforcement: Law enforcement officers take reports for crimes that happen in their
areas. Officers investigate crimes and gather and protect evidence. Law enforcement officers
may arrest offenders, give testimony during the court process, and conduct follow-up
investigations if needed.

Prosecution: Prosecutors are lawyers who represent the state or federal government (not the
victim) throughout the court process-from the first appearance of the accused in court until
the accused is acquitted or sentenced. Prosecutors review the evidence brought to them by
law enforcement to decide whether to file charges or drop the case. Prosecutors present
evidence in court, question witnesses, and decide (at any point after charges have been filed)
whether to negotiate plea bargains with defendants. They have great discretion, or freedom,
to make choices about how to prosecute the case. Victims may contact the prosecutor's office
to find out which prosecutor is in charge of their case, to inform the prosecutor if the defense
attorney has contacted the victim, and to seek other information about the case.

Defense Attorneys: Defense attorneys defend the accused against the government's case.
They are ether hired by the defendant or (for defendants who cannot afford an attorney) they
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are assigned by the court. While the prosecutor represents the state, the defense attorney
represents the defendant.

Courts: Courts are run by judges, whose role is to make sure the law is followed and oversee
what happens in court. They decide whether to release offenders before the trial. Judges
accept or reject plea agreements, oversee trials, and sentence convicted offenders.

Corrections: Correction officers supervise convicted offenders when they are in jail, in
prison, or in the community on probation or parole. In some communities, corrections
officers prepare pre-sentencing reports with extensive background information about the
offender to help judges decide sentences. The job of corrections officers is to make sure the
facilities that hold offenders are secure and safe. They oversee the day-to-day custody of
inmates. They also oversee the release processes for inmates and sometimes notify victims of
changes in the offender's status.

How the Criminal Justice Process Works:

Below is a basic outline of the sequence of events in the criminal justice process, beginning
when the crime is reported or observed. The process may vary according to the jurisdiction,
the seriousness of the crime (felony or misdemeanor), whether the accused is a juvenile or an
adult, and other factors. Not every case will include all these steps, and not all cases directly
follow this sequence. Many crimes are never prosecuted because they are not reported,
because no suspects can be identified, or because the available evidence is not adequate for
the prosecutor to build a case.

Entry into the System

Report: Law enforcement officers receive the crime report from victims, witnesses, or other
parties (or witness the crime themselves and make a report).

Investigation: Law enforcement investigates the crime. Officers try to identify a suspect and
find enough evidence to arrest the suspect they think may be responsible.
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Arrest or Citation: If they find a suspect and enough evidence, officers may arrest the
suspect or issue a citation for the suspect to appear in court at a specific time. This decision
depends on the nature of the crime and other factors. If officers do not find a suspect and
enough evidence, the case remains open.

Prosecution and Pretrial:

Charges: The prosecutor considers the evidence assembled by the police and decides
whether to file written charges (or a complaint) or release the accused without prosecution.

First Court Appearance: If the prosecutor decides to file formal charges, the accused will
appear in court to be informed of the charges and of his or her rights. The judge decides
whether there is enough evidence to hold the accused or release him or her. If the defendant
does not have an attorney, the court may appoint one or begin the process of assigning a
public defender to represent the defendant.

Bail or Bond: At the first court appearance (or at any other point in the process-depending on
the jurisdiction) the judge may decide to hold the accused in jail or release him or her on bail,
bond, or on his or her"own Recognizance" (OR)," (OR means the defendant promises to
return to court for any required proceedings and the judge does not impose bail because the
defendant appears not to be a flight risk). To be released on bail, defendants have to hand
over cash or other valuables (such as property deeds) to the court as security to guarantee that
the defendant will appear at the trial. Defendants may pay bail with cash or bond (an amount
put up by a bail bondsman who collects a non-refundable fee from the defendant to pay the
bail). The judge will also consider such factors as drug use, residence, employment, and
family ties in deciding whether to hold or release the defendant.

Grand Jury or Preliminary Hearing: In about one-half of the states, defendants have the
right to have their cases heard by a grand jury, which means that a jury of citizens must hear
the evidence presented by the prosecutor and decide whether there is enough evidence to
indict the accused of the crime. If the grand jury decides there is enough evidence, the grand
jury submits to the court an indictment, or written statement of the facts of the offense
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charged against the accused. In other cases, the accused may have to appear at a preliminary
hearing in court, where the judge may hear evidence and the defendant is formally indicted or
released.

Arraignment: The defendant is brought before the judge to be informed of the charges and
his or her rights. The defendant pleads guilty, not guilty, or no contest (accepts the penalty
without admitting guilt). If the defendant pleads guilty or no contest, no trial is held, and
offender is sentenced then or later. If the defendant pleads not guilty, a date is set for the trial.
If a plea agreement is negotiated, no trial is held.

Adjudication (Trial Process):

Plea Agreements: The majority of cases are resolved by plea agreements rather than trials. A
plea agreement means that the defendant has agreed to plead guilty to one or more of the
charges in exchange for one of the following: dismissal of one or more changes, a lesser
degree of the charged offense, a recommendation for a lenient sentence, not recommending
the maximum sentence, or making no recommendation. The law does not require prosecutors
to inform victims about plea agreements or seek their approval.

Trial: Trials are held before a judge (bench trial) or judge and jury (jury trial), depending on
the seriousness of the crime and other factors. The prosecutor and defense attorney present
evidence and question witnesses. The judge or jury finds the defendant guilty or not guilty on
the original charges or lesser charges. Defendants found not guilty are usually released. If the
verdict is guilty, the judge will set a date for sentencing.

Post-Trial:

Sentencing: Victims are allowed to prepare for the judge (and perhaps to read at the
sentencing hearing) a victim impact statement that explains how the crime affected them. In
deciding on a sentence, the judge has a range of choices, depending on the crime. These
choices include restitution (paying the victim for costs related to the crime), fines (paid to the
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court), probation, jail or prison, or the death penalty. In some cases, the defendant appeals the
case, seeking either a new trial or to overturn or change the sentence.

Probation or Parole: A judge may suspend a jail or prison sentence and instead place the
offender on probation, usually under supervision in the community. Offenders who have
served part of their sentences in jail or prison may-under certain conditions-be released on
parole, under the supervision of the corrections system or the court. Offenders who violate
the conditions of their probation or parole can be sent to jail or prison.

CORRECTIONAL INSTITUTION AND CRIME PREVENTION

PROBATION AND PAROLE

Probation is a way of sending good idea in the mind of offenders. It is probably the first stage
of the correctional scheme. The object of probation is to keep delinquent away from evil
consequences and offer him an opportunity leads socially useful life without violating the law
and as of all methods of treatment is the ultimate rehabilitation of the offender in the
community. On the other hand, Parole has emerged as one of the most acceptable form of
correctional device in modern penology. It has been universally recognized as one of the most
appropriate methods of treatment of offenders for their reformation and rehabilitation in the
normal society after the final release. It can be said that parole is the last stage of correctional
scheme.

Meaning of probation:

The term Probation is derived from the Latin word probare, which means to test or to prove.
It is a treatment device, developed as a non-custodial alternative that is used by the
magistracy where guilt is established but it is considered that imposing of a prison sentence
would do no good. Imprisonment decreases the convict’s capacity to readjust to the normal
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society after the release and association with professional delinquents often has undesired
effects.

Law of probation in India:

Section 562 of the Code if Criminal Procedure, 1898, was the earliest provision to have dealt
with probation. After amendment in 1974 it stands as S.360 of The Code of Criminal
Procedure, 1974. S.361 makes it mandatory for the judge to declare the reasons for not
awarding the benefit of probation.

In 1958 the Legislature enacted the Probation of Offenders Act, which lays down for
probation officers to be appointed who would be responsible to give a pre-sentence report to
the magistrate and also supervise the accused during the period of his probation. Both the Act
and S.360 of the Code exclude the application of the Code where the Act is applied. The
Code also gives way to state legislation wherever they have been enacted.

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

(1) When any person not under twenty-one years of age is convicted of an offence punishable
with fine only or with imprisonment for a term of seven years or less, or when any person
under twenty-one years of age or any woman is convicted of an offence not punishable with
death or imprisonment for life, and no previous conviction is proved against the offender, if it
appears to the Court before which he is convicted, regard being had to the age, character or
antecedents of the offender, and to the circumstances in which the offence was committed,
that it is expedient that the offender should be released on probation of good conduct, the
Court may, instead of sentencing him at once to any punishment, direct that he be released on
his entering into a bond, with or without sureties, to appear and receive sentence when called
upon during such period (not exceeding three years) as the Court may direct and in the
meantime to keep the peace and be of good behavior:

Provided that where any first offender is convicted by a Magistrate of the second class not
specially empowered by the High Court, and the Magistrate is of opinion that the powers
conferred by this section should be exercised, he shall record his opinion to that effect, and
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submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking
bail for his appearance before, such Magistrate, who shall dispose of the case in the manner
provided by sub-section (2).

(2) Where proceedings are submitted to a Magistrate of the first class as provided by sub-
section (1), such Magistrate may thereupon pass such sentence or make such order as he
might have passed or made if the case had originally been heard by him, and, if he thinks
further inquiry or additional evidence on any point to be necessary, he may make such inquiry
or take such evidence himself or direct such inquiry or evidence to be made or taken.

(3) In any case in which a person is convicted of theft, theft in a building, dishonest
misappropriation, cheating or any offence under the Indian Penal Code punishable with not
more than two years’ imprisonment or any offence punishable with fine only and no previous
conviction is proved against him, the Court before which he is so convicted may, if it thinks
fit, having regard to the age, character, antecedents or physical or mental condition of the
offender and to the trivial nature of the offence or any extenuating circumstances under which
the offence was committed, instead of sentencing him to any punishment, release him after
due admonition.

(4) An order under this section may be made by any Appellate Court or by the High Court or
Court of Session when exercising its powers of revision.

(5) When an order has been made under this section in respect of any offender, the High
Court or Court of Session may, on appeal when there is a right of appeal to such Court, or
when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence
on such offender according to law:

Provided that the High Court or Court of Session shall not under the sub-section inflict a
greater punishment than might have been inflicted by the Court by which the offender was
convicted.

(6) The provisions of sections 121, 124 and 373 shall, so far as may be, apply in the case of
sureties offered in pursuance of the provisions of this section.
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(7) The Court, before directing the release of an offender under sub-section (1), shall be
satisfied that an offender or his surety (if any) has a fixed place of abode or regular
occupation in the place for which the Court acts or in which the offender is likely to live
during the period named for the observance of the conditions.

(8) If the Court which convicted the offender, or a Court which could have dealt with the
offender in respect of his original offence, is satisfied that the offender has failed to observe
any of the conditions of his recognizance, it may issue a warrant for his apprehensions.

(9) An offender, when apprehended on any such warrant, shall be brought forthwith before
the Court issuing the warrant, and such Court may either remand him in custody until the
case is heard or admit him to bail with a sufficient surety conditioned on his appearing for
sentence and such Court may, after hearing the case, pass sentence.

(10) Nothing in this section shall affect the provisions of the Probation of Offenders Act,
1958, (20 of 1958) or the Children Act, 1960, (60 of 1960) or any other law for the time being
in force for the treatment, training or rehabilitation of youthful offenders.

Object:

Section 360 is intended to be used to prevent young persons from being committed to jail,
where they may associate with hardened criminals, who may lead them further along the path
of crime, and to help even men of more mature years who for the first time may have
committed crimes through ignorance, or inadvertence or the bad influence of others and who,
but for such lapses, might be expected to be good citizens. It is not intended that this section
should be applied to experienced men of the world who deliberately flout the law and commit
offences.

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

Release on probation of good conduct:Section 360(1)

Having regard to the age, character or antecedents of the offender, and the circumstances in
which the offence was committed, if the court convicting the accused person considers it
expedient to release the offender on probation of good conduct (instead of sentencing him at
once to any punishment), it may direct the offender to be released on his entering into a bond,
with or without sureties, to appear and receive sentence when called upon during such period
(not exceeding three years) as the court may fix and in the meantime to keep the peace and be
of good behaviour. Such a release is permissible only if the following conditions are satisfied:

 There is no previous conviction proved against the offender.

 When the person convicted is a woman of any age, or any male person under 21 years
of age, and the offence of which he or she is convicted is not punishable with death or
imprisonment for life.
 When the person convicted is not under 21 years of age, and the offence of which he
is convicted is punishable with fine only or imprisonment for a term of seven years or
less.

First Offenders:

The expression first offender refers to an offender who has no previous conviction to his
credit, apart from the offence in question. It is also necessary that the offence committed by
him for the first time must be one of those mentioned in section 360, CrPC. First offenders
under this section are entitled to indulgence on the ground of their age, character or
antecedents and to the circumstances in which the offence is committed. The object of this
section is to avoid sending the first time offender to prison for an offence, which is not of a
serious character and thereby running the risk of turning him into a regular criminal.

First offenders according to sub-section (1) fall under two classes:

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 When the person convicted is a woman of any age, or any male person under 21 years
of age, and the offence of which he or she is convicted is not punishable with death or
imprisonment for life.
 When the person convicted is not under 21 years of age, and the offence of which he
is convicted is punishable with fine only or imprisonment for a term of seven years or
less.

Offenders with any precious conviction or those found guilty of any offence punishable with
death or imprisonment for life are totally beyond the purview of the section. From this section
it is clear that it tries to reform the criminals by treating them leniently only in those cases
where there is no serious danger or threat to the protection of the society.

For application of this section it is necessary that the offender must not have been convicted
previously so as to bring him in the category of the first offender. On fulfilment of the above
conditions, if the court by which the offender is convicted considers it expedient that the
offender should be released on probation of good conduct, it may, instead of sentencing him
at once to any punishment, order him to be released on bond with or without sureties. The
offender may be required to furnish a bond to appear and receive sentence whenever called
upon during such period not exceeding three years as the court may direct. The offender shall
be directed by the court to keep the peace and be of good behaviour if he is released on
probation under this section. In Md. Syad Ali v. State of Gujarat, when the accused was a
first offender and his age was below 21 years but the court had not applied its mind to the
application of section 360, it was held that it was a fit case for granting probation.

No offender can as a matter of right, on fulfilling the conditions laid down in this section,
claim to be released on probation of good conduct. It is a discretionary power given under
this section to the court.

Release after admonition:Section 360(3)

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

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

 The offence of which he has been accused of is either theft, theft in a building or
dishonest misappropriation or is punishable under the IPC with not more than 2 years’
imprisonment or is one punishable with fine only.

Subsection (3) is applicable only in respect of the specified offences and such other offences
under the IPC that are not punishable with more than two years’ imprisonment. Under this
sub-section the court has got the discretion to release the offender after admonition instead of
sentencing him to any punishment.

Section 360(4)

An order under s. 360 directing release of the convicted offender on probation of good
conduct or release after due admonition may be made by an appellate court or by the High
Court or court of session when exercising its powers of revision.

Section 360(5)

The High Court or the Court of Session may, on appeal or when exercising its powers of
revision, set aside such order and in lieu thereof pass sentence on such offender according to
law. But the High Court shall not inflict a greater punishment than might have been inflicted
by the court by which the offender was convicted.

Breach of recognisances:

Section 360(8) & Section 360(9)

In case the offender fails to observe the conditions of his recognizance, the court which
convicted the offender or any court which could have dealt with him in respect of his original
offence may issue a warrant for his apprehension and when brought before it may either
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remand him in custody until the case is heard or admit him to bail with a sufficient surety and
after hearing the case, pass sentence.

Section 360 And POA Exclusive Of Each Other:

Section 360 itself makes it quite clear that it shall not affect the provisions of the Probation of
Offenders Act. According to Section 18 of POA read with section 8(1), General Clauses Act,
1897, Section 360 of the Code would cease to apply to the States or parts thereof in which the
POA is brought into force. However, the offender can be still released after admonition or on
probation of good conduct under sections 3 and 4 POA which is wider in its scope than the
provisions of section 360. In that case also, the court will have to use discretion on the same
lines as in cases under section 360.

Chhanni v. State of Uttar Pradesh, is a case relating to applicability of section 360, Cr.P.C.
In the instant case it was held that provisions of the two statutes regarding probation have
significant differences and they cannot coexist. Hence, provisions of section 360 are wholly
inapplicable in areas where Probation of Offenders Act is made applicable. The difference
between the two statutes is that section 360 of the Code relates only to persons not under 21
years of age convicted for an offence punishable with fine only or with imprisonment for a
term of 7 years or less, to any person under 21 years of age or any woman convicted of an
offence not punishable with sentence of death or imprisonment for life. The scope of section
4 of the probation of offenders act is much wider. It applies to any person found guilty of
having committed an offence not punishable with death or imprisonment for life. Therefore,
the court held that the provisions in the two statutes with significant differences could not be
intended to co-exist at the same time in the same area.

The order under this section follows a conviction and can be substituted for a sentence.

361. Special reasons to be recorded in certain cases. Where in any case the Court could have
dealt with,-

(a) an accused person under section 360 or under the provisions of the Probation of Offenders
Act, 1958 (20 of 1958), or
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(b) a youthful offender under the Children Act, 1960 (60 of 1960 ), or any other law for the
time being in force for the treatment, training or rehabilitation of youthful offenders, but has
not done so, it shall record in its judgment the special reasons for not having done so.

Special directive in case of non-punitive measures:

The discretion to sentence a convicted person to any punishment has been narrowed down by
section 361. This section requires that the court shall normally deal with the offenders under
section 360 or under the POA, or in case of youthful offenders under the laws of treatment,
training or rehabilitation, of such youthful offenders; and that in case the court decides to pass
any sentence on the offender, it shall record special reasons for doing so. Thus, section 361
clearly shows that the courts while dealing with the convicted persons are to adopt, as a
matter of policy, non-punitive measures for the reformation and rehabilitation of offenders,
and as far as possible, to avoid awarding deterrent and retributive punishments.

Where the accused may be given benefit of provisions contained in the POA or section 360,
but he is not given that benefit, section 361 requires the court to gives its reasons for not
doing so.

Section 361 of the code casts a duty upon the court to extend the benefit of the Probation Act
to the accused wherever it is possible and to state ‘special reasons’ if it does not do so. The
section makes it mandatory for the court to record in its judgment ‘special reasons’ for not
extending the benefit of the Probation Act to the accused. The ‘special reasons’ must be such
as to compel the court to hold that it is impossible to reform and rehabilitate the offender after
examining the matter with due regard to the age, character and antecedents of the offender
and circumstances in which the offence was committed. This is some indication by the
Legislature that reformation and rehabilitation and not mere deterrence, are now among the
foremost objects of the administration of criminal justice in our country.

The omission to record special reasons as required by section 361 is an irregularity and may
require the court of appeal or revision to set aside the sentence passed by the lower court if
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the irregularity has occasioned a failure of justice. In Santa Singh v. State of Punjab, it was
observed by the Supreme Court:

“Having regard to the object … there can be no doubt that it is one of the most fundamental
parts of criminal procedure and non-compliance thereof will ex-facie vitiate the order [of
sentence]. Even if it be regarded as an irregularity the prejudice caused to the accused would
be inherent and implicit because of the infraction of the rules of natural justice which have
been incorporated in this statutory provision, because the accused has been completely
deprived of an opportunity to represent to the court regarding the proposed sentence and
which manifestly results in a failure of justice.”

Merits and Demerits of Probation

Following are the merits or advantages of probation: -

 It is most useful in the case of juvenile delinquents.

 It gives hope for the rehabilitation of the offender who has not committed the offence.
 Probation is a way of sending good idea in the mind of offenders.
 It is helpful for both hardcore and youthful offenders.
 It helps in reducing the crowding in the jails.

Following are the demerits or disadvantages of probation: -

 The threat of further punishment should also be incurred in the mind of prisoners.
Here there is no threat in the mind of prisoner.
 It decreases the average penalty.

PAROLE: MEANING:

Parole is a release from prison after part of the sentence has been served, the prisoner still
conditions until discharged and liable to return to the institution for violation of any of these
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conditions. It helps in reducing over-crowding in prisons. According to Donald Taft, “Parole

is a release from prison after part of the sentence has been served, the prisoner still remaining
in custody and under stated conditions until discharged and liable to return to the institution
for violation of any of these conditions. According to J.L. Gillin, “Parole is the release from a
penal or reformative institution, of an offender who remains under the control of correctional
authorities, in an attempt to find out whether he is fit to live in the free society without
supervision.

The Supreme Court in Smt. Poonam Lata v. Wadhawan & Others, has clarified that parole
is a grant of partial liberty or lessening of restrictions to a convict prisoner, but release on
parole does not, in any way, change the status of the prisoner.

In the case of Avtar Singh v. State of Haryana,the Supreme Court held that generally
speaking, the act of granting parole is an administrative action and parole is a form of
temporary release from prison custody, which does not suspend the sentence of the period of
detention, but provides conditional release from the prison and changes the mode of
undergoing the sentence.

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

 To enable the inmate to maintain continuity with his family life and deal with family
matters;
 To save the inmate from the evil effects of continuous prison life;
 To enable the inmate to retain self-confidence and active interest in life.

In India, the grant of Parole is largely governed by the rules made under the Prison Act, 1894
and Prisoner Act, 1900. In parole there is a Parole Board consists of parole administrators
who are from among the respectable members of society. These members are assigned the
function of discharging convicted prisoners on parole after careful scrutiny. They are
performing a quasi-judicial function.

Objectives of Parole:
As discussed, the primary aim of parole is to induce the humanitarian approach to the prison
system. It allows the prisoner to be released in the outside world for a short period which in
turn facilitates their evolution into a useful citizen. It is essential to note that parole is a
gracious act and cant be treated as the right. Parole can also be termed as an essential
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reformative process for the prisoners which is crucial as they still are very much part of the
society. As per the current system, every sentence above eighteen months is eligible for
parole post completion of one-third of the prison time.

Grounds for Parole:

The maximum period allowed for parole is one month and the prisoner has to fulfil the
condition of the minimum prison time to be served, to be applicable for parole. Some of the
grounds on which parole is approved are: -
1. Serious illness of a close family member.
2. Death of a family member.
3. An accident of a family member.
4. The marriage of a family member.
5. Delivery of a child by the prisoner's wife.
6. Serious damage to life or property of a family member due to natural calamity.
It is important to note that a certain category of prisoners is exempted from the privilege of
parole such as prisoners convicted for terrorism, multiple murders and are a threat to national
security etc.

Procedure for Parole:

The procedure for parole involves the following steps:-
1. The prisoner after completing the mandate jail time applies for parole.
2. The jail authority then asks for a report from the police station where the arrest was made.
3. The report is then verified.
4. If the reason for parole is a medical emergency, relevant medical records and certificates are
also verified.
5. The final report is then submitted to the Deputy Secretary, State Government or Inspector
General of Prisons.
6. The competent authority then takes the decision on parole.

Merits and Demerits of Parole

Following are the merits or advantages of parole: -

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 It creates hopes among other prisoners.

 Once you have been released on parole, there is the opinion of the society is liberal.
 Securing family life of the parolee.
 It eradicates over burden of the jails.
 It is also economical to the State. The cost of expenditure of parolee also decreases.
 It creates threats on the mind of the parolee to maintain good conduct in the society.

Following are the demerits or disadvantages of parole: -

 If any negligence in the selection of the parolee, it results in serious consequences.

 Parole Board is bound to act on the aid and advice of the jail authority.
 It is not necessary that the prisoners who are maintaining their good conduct in the
prisons will maintain their good conduct in the society.
 Political interference.
 Ill-treatment and doubtful behaviour by the society makes him impediment in his
character development.

COMPARISON/DISTINCTION BETWEEN PROBATION AND PAROLE

Probation and parole can be differentiated on the following grounds: -

 Historical Evolution: - The system of probation owes its origin to John Augustus of
Boston (U.S.A.) around 1841 whereas the system of parole came into existence much
later somewhere around 1900.
 Punitive Reaction: - In probation, there is no punitive reaction to the crime. It is
purely a treatment of offender. But in parole, the punitive reaction to the crime is
present. Few parts of sentence is served i.e. punitive.
 Nature: - Probation is judicial in nature whereas parole is quasi-judicial in nature and
civilized or respected members of society constitute Parole Board.
 Sentence: - In probation, no such formal penalty is imposed, if imposed is not
executed. But parole is granted after serving a part of sentence in prison.
 Substitute for Punishment: - Probation is granted as a substitute of the punishment.
But parole is granted after completing a part of sentence.
 Punishment and Treatment: - Probation is only a treatment in which the sentence is
suspended. But parole implies both punishment and treatment.
 Stage: - Probation is probably the first stage of correctional scheme whereas parole is
the last stage of correctional scheme.
 Stigma or Disqualification: - No stigma in case of probation because use no
sentence whereas a prisoner released on parole suffers stigmatization as a convicted
criminal in the society.

PRISON SYSTEM IN INDIA:

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Introduction:
India is the world's largest democracy in more than name. It has free elections, a multi-party
parliamentary system, a diverse and outspoken free press, an independent judiciary and the
country abounds with the non-governmental organizations that take pride in their
independence and that helps to make up a lively civil society. Yet if the checks and balances
of democracy are supposed to curb the government lawlessness, something has gone wrong
in our country. At least, it seems from an examination that has been recently conducted on
imprisonment and police detention in our country. In some major cities of the country that we
visited, and probably elsewhere as well, anyone unlucky enough to be arrested faces a far
greater likelihood of torture, or worse, at the hands of the police than in many of the countries
entirely lacking in the protections for civil liberties available in India. Though we had some
inkling in advance that we would find extensive police abuse of the detainees, we were not
prepared for what we discovered about the prisons and jails to which detainees are sent after
the police are done with them. They would be bad, if only because the life is hard for the
most of the Indians outside the prisons. It stands to a reason, therefore, if incarceration is
meant to punish then life inside the prisons should be worse. What took us by surprise,
however, is the manner in which it is worse for the great majorities of prisoners and, more
surprising, the fact that the imprisonment is somewhat less harsh than we had expected for
some prisoners. Though prisons are supposed to be leveling institutions in which the
variables that affect the conditions of confinement which are expected to be the criminal
records of their prisoners and their behavior in prison, other factors are there that may play a
part in many countries.
Although prison systems everywhere are marked by inertia, few can match India's in
immutability of practice. A country which over 40 years ago cast off British rule still
administers its system under the colonial Prisons Act of 1894. Perhaps because the act is such
a relic of the past, or perhaps because prison officials prefer the route of least accountability,
the various state prison manuals that embody the 1894 provisions are collectors' items, not
only in short supply but expensive. A number of prison commissions have attempted to
update and revise the code, but aside from a few states, these efforts have not received
legislative approval. It is not only the rules and regulations but day to day reality of Indian
prisons which is so archaic.
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Evolution of prison system in India:

The evolution of prison system in India is very dramatic. One may say that Indian prison
system is one of the very complex systems of the world to understand. In general three phases
may be distinguished in the history of prisons. During the first, which lasted until the middle
of the 16th century, penal institutions were chiefly dungeons of detention rooms in secure
parts of castles or city, in which prisoners awaiting trial or execution of sentences were kept.
The second phase was one of experimentation with imprisonment a form of punishment for
certain types of offenders, mostly, Juveniles. The third phase was the universal adaptation of
imprisonment as the substitute for all capital punishments. Prisons in the shape of the
dungeons had existed from the time immemorial in all the countries of the world. In his book,
‘The Future of imprisonment’, Norvel Morris refers to punitive imprisonment used
extensively in Rome, Egypt, China, India, Assyria and Babylon and firmly established in
Renaissance Europe. But prison sentence, as a specific punishment, is relatively recent origin.
The prison as we know it has now come into existence largely as an interim house of
detention of an offender pending trial and punishment. In India, the early prisons were only
places of detention where an offender was detained until trial and judgment and the execution
of the latter. The structure of the society in ancient India was founded on the principles
enunciated by Manu and explained by Yagnavalkya, Kautilya and others. Among various
types of corporal punishments – branding, hanging, mutilation and death, the imprisonment
was the most mild kind of penalty known prominently in ancient Indian penology. The main
aim of imprisonment was to keep away the wrong doers, so that they might not defile the
members of social order. These prisons were dark dens, cool and damp, unlighted. There was
not proper arrangement for the sanitation and no means of facility for human dwelling. Fine,
imprisonment, banishment, mutilation and death sentence were the punishments in vogue.
Fine was for the most common and condemned person who could not pay his bill to bondage
until it was paid by his labour. Though the Indian law gives a little description of jail life,
even then historical account gave a clear picture after the analysis of the available data. A few
Smiriti writers supplied some information concerning with the jail.

Constitutional provisions and various international conventions on prison system and inmates:
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A society that believes in the worth of the individuals can have the quality of its belief judged, at
least in part, by the quality of its prisons and prove services and of recourses made available to them.
It is the human life that necessitates the human rights. Being in the civilized society, organized with
law and a system as such, it is essential to ensure for every citizen a reasonably dignified life. Thus
every right is considered as a human right as that helps a human to live like a human being. Even if
the person is deprived some of his rights dye to commission of some wrongs, he is entitled to their
rights unaffected by the punishment for wrongs. Especially, when the principles and objectives of
criminology and penology are acquiring a human face the enforcement of the human rights assume a
very great relevance. Simply because a person is “under a trial orconvicted”, his rights cannot be
discarded as a whole. A man on becoming a prisoner, whether convict or under trial, doesn’t cease to
be human being. Though the prisoners can’t be treated as animals yet the barbarous treatment
sometimes given to them in the prisons is not qualitatively human compared to the one given to the
caged inmates. The grim scenario of prison justice assumes in human misanthropic fragrance when
the intellect of prisoners is blemished, personhood of prison is fortified and they are forced to lose
their integrity and individuality and thereby compelling them to become the right less slaves of the
of the state It become gruesome indeed and calls for interference of judicial power as the
constitutional sentinel, when the jurisprudence of prison justice becomes an escalating torture and
the violent violation of the human rights is perpetrated by agencies of the state. The mandates of the
preamble, fundamental rights and Directive Principles Provisions of the Indian Constitution seem to
be outlawed from the security bound prohibited areas of high walled jails. Human rights are founded
in the heart and mind of every citizen who in common effort should labor to gather to create a world
in which fundamental rights and freedoms can be realized for all citizens. The people of the world in
the chart of U.N. have reaffirmed the faith in the Fundamental Human Rights, in the dignity and work
of human person. One of the purposes laid down in Article 1 of the United Nations Organization is to
promote and encourage respect for human rights and for fundamental freedoms of all. To achieve
this purpose, the U.N. General Assembly adopted the “Universal Declaration of Human rights” on
December 10, 1948 to promote respect for and to the secure universal and the effective recognition
and observance of these rights and freedoms. Article 3 of the declaration provides to everyone the
right to life, liberty and security of perso. Article 5 outlaws the tortures, or cruel, in human degrading
treatment or punishment. Article 8 provides person that no one shall be subjected to arbitrary arrest,
detention or exile. Article 10 provides arrest, detention or exile Article 10 provides for fair public
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hearing by impartial tribunals. Accused shall be presumed to be innocent unless proved the guilty
and he shall not be punishment under ex post facto lows. Arbitrary interference with his privacy,
family, home or correspondence or attack on his honor or reputation shall not be allowed. Article 21
of Indian Constitution, among others, is the embodiment of wide range of human rights a single
sentence of that Article - “No person shall be deprived of his life and personal liberty except
according to procedure established by law” become a perennial source of human law. Article 21
guarantees about the right to human dignity even to the prisoners. In fact, right to human dignity
belongs to all the human beings inside and outside the prison in India. Whether prisoners are
entitled to fundamental rights guaranteed by the constitution was one of the important issues
examined by the supreme court immediately after the commencement of the constitution The Court
declared that when a person loses his right to personal liberty by way of detention under a valid law
enacted by a competent legislature, and so long as long he remains under such detention, he ceases
to be entitled to enjoy his other fundamental freedoms. The courts have recently viewed third
degree methods and custodial deaths in police custody as the serious violations of human rights and
constitutional provision of right to life and liberty. Under the Indian Constitution, there is no such
provision inpart III which can safeguard the discretionary and sometimes brutal treatment given to
the prisoners. But the supreme court of India, by interpreting Article 21 of the Constitution has
developed human rights jurisprudence for the preservation and protection of prisoners’ right to
human dignity. In the case of Charles Shobroj v- Superintendent Central Jail, Tihar, New Delhi
Supreme court recognized that the right to life is more than mere animal existence or vegetable
substance. Even in prison a person is required to be treated with dignity and one enjoy all the right
specified In Article 21. Sunil Batra V. Delhi Administration in this case, supreme court held that the
prisoners are not wholly denuded of their fundamental right they are entitled to all the
constitutional rights unless their liberty has been constitutionally curtailed. Though a prisoner’s
liberty is in the very nature of the thing circumscribed by the very fact of his confinement is: his
interest in the limited liberty left to him is that all more important. Conviction for a crime does not
reduce the person into a nonperson whose right are subject to the whim of prison administration
and therefore the imposition of any major punishments within the prison system, are conditional
upon the observance of procedural safeguards freedom behind bar is part of Indian constitution trust
and the index of our collective consciousness. Supreme court of India recognized several rights and
protection for the prissiness, like as:
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i) Right for the free legal aid.

ii) Right for the speedy trial
iii) Right against the hand cuffing
iv) Right against the inhuman treatments
v) Right against the public hanging
vi) Prisoner’s Grievances.
In M.H. Hoskot v State of Maharastra the supreme Court aid down that right to free legal aid at the
cost to the state to an accessed who could not afford legal services for the reason of poverty in India,
indigence or incommunicado situation was part of fear, just and reasonable procedures implicit in
Article 21.
In Anil Rai v. State of Bihar Supreme Court took a serious note of delay in delivery of judgements.
The court has observed that any inordinate, unexplained and negligent delay in pronouncing the
judgement by the high court infringed the right under Article 21 of the Constitution.
In Prem Shanker v Delhi Administration, the Supreme Court declared that hand cuffing is prima facia
inhuman and therefore unreasonable is over harsh and that the first flush, arbitrary. A rule requiring
for every trial person accused of a non-boilable offence punishable with more than 3 yrs. Prison term
to be routinely hand cuffed during the transition from prison to court for trial violates Article 14, 19
& 21. No doubt about the democratic legitimacy which characterizes our era. Liberty and freedom
are the elements of prisoner’s human right and democracy. In so far as developing countries are
concerned, it has to be observed that, one must believe in one’s country’s democracy and human
rights of prisoners.

Prisoners’ rights: constitutional provisions:

The fundamental rights guaranteed under the Constitution are not absolute and many restrictions
have been imposed on their enjoyment. Right to freedom of the person is one of the most important
rights among the fundamental rights. When a person is convicted or put in the prison, his status is
much different from that of an ordinary person. A prisoner, in India, cannot claim all the fundamental
rights that are available to an ordinary person. The Supreme Court of India and various High Courts in
India have discussed flue scope various decisions. Before discussing these decisions, it is very much
necessary to see various constitutional provisions with regard to prisoners’ rights.
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Statutory Provisions:
There is no guarantee of prisoner's right as such in the Constitution of India. However, certain rights
which have been enumerated in Part III of the Constitution are available to the prisoners also
because a prisoner remains a "person" inside the prison. The right to the personal liberty has now
been given very wide interpretation by the Supreme Court. This right is available not only for free
people but even to those behind bars. The right to speedy trial4, free legal aids, right against torture,
right against in human, and degrading treatment accompany a person into the prison also. One of
the important provisions of the Constitution of India is generally applied by the courts, which is
Article 14 in which the principle of equality is embodied. The rule that "like should be treated alike"
and the concept of reasonable classification as contained in the article 14, has been a very useful
guide for the courts to determine the category of prisoners and their basis of classification in
different categories. Originally the treatments of prisoners inside the prisons were cruel and
barbarous. ‘When a person was convicted, it was thought that he lost all his rights. The prison
community was treated as the closed system and there was no access for outsiders in the affairs of
the prisoners. The authorities, under the guise of disciplines, were able to inflict any injury upon the
inmates in the prison. The courts, in India, were reluctant to interfere in the affairs of the prisoners: it
was completely left to the discretion of the executive. But gradually, a change was visible.
Right to Fair Procedure:
When we trace the origin of the prisoner's right in India, the embryo we can find in the celebrated
decision of A. K.Gopalan v. State of Madras. One of the main contentions raised by the petitioner
was that the phrase "procedure established by law" as contained in article 21 of the Constitution
includes a ‘fair and reasonable‘ procedure and not a mere semblance of procedure prescribed by the
State for the deprivation of life or personal liberty of individuals. The majority view in Gopalan was
that when a person is totally deprived of his personal liberty under a procedure established by the
law, the fundamental rights including the right to freedom of movement are not available. "There
can’t be any such thing as absolute or uncontrolled liberty wholly freed from restraint, for that would
lead to anarchy and disorders. In some cases, the restrictions have to be placed upon free exercise of
individual rights to safeguard. Prisons Act 1894, on the basis of what the present jail management
and administration operates in India. This Act has hardly undergone through any substantial change.
However, the process of reviewing of the prison problems in India has been continued even after
this. In the report of the Indian Jail Committee (IJC) 1919-20, for the first time in the history of
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prisons, 'reformation and rehabilitation' of offenders were identified as the main objective of the
prison administrator. Several committees and commissions have been appointed by both central and
state governments after Independence, which has emphasized humanization of the conditions in the
prisons. The need for completely overhauling and consolidating the laws related with the prison has
been constantly highlighted. The Government of India Act 1935 has resulted in the transfer of the
subjects of jails from the centre list to the control of provincial governments, hence further reduced
the possibility of uniform implementation of a prison policy at national level.
The State governments thus having their own rules for the day to day administration of prisons in
India, upkeep and maintenance of prisoners, and prescribing procedures. In the year of 1951 the
Government of India had invited the United Nations expert on correctional work, Dr. W.C. Reckless to
undertake a study on the prison administration for Indian Prison and to suggest policy reform for it.
His report was titled as 'Jail Administration in India' made a plea for transforming jails into
reformation centers so that reformation of India could be easy for the Indian prison. He also
recommended that the revision should be for outdated jail and provided the manuals. In the year of
1952 the Eighth Conference of the Inspector General’s of Prisons, have also supported the
recommendations of Dr. Reckless regarding prison reformation. Accordingly the Government of India
has appointed the All India Jail Manual Committee in the year of 1957 for preparing a model prison
manual. The committee submitted report in 1960. The report had made a forceful plea for
formulating a uniform policy and latest methods relating with the jail administration, probation,
after-care, juvenile and remand homes, certified and reformatory school, borstals and protective
homes, suppression of immoral traffic etc.
Existing statues for prison management in India:
The existing statutes which have a bearing on regulation and management of prisons in the country
are:
1. The Indian Penal Code, 1860.
2. The Prisons Act, 1894.
3. The Prisoners Act, 1900.
4. The Identification of Prisoners Act, 1920.
5. Constitution of India, 1950
6. The Transfer of Prisoners Act, 1950.
7. The Representation of People’s Act, 1951.
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8. The Prisoners (Attendance in the Courts) Act, 1955.

9. The Probation of the Offenders Act, 1958.
10. The Code of the Criminal Procedure, 1973.
11. The Mental Health Act, 1987.
12. The Juvenile Justice (Care & Protection) Act, 2000.
13. The Repatriation of the Prisoners Act, 2003.
14. Model Prison Manual (2003).

PRISON REFORMS IN INDIA:

The concept of modern prison in India originated with the Minute by TB Macaulay in 1835. A Prison
Discipline Committee was appointed which submitted its report on 1838. The committee
recommended increased rigorousness of treatment while rejecting all humanitarian needs and
reform of prisoners. Following the recommendations of the Committee, Central Prisons were
constructed from 1846. The contemporary Prison administration in India is thus a legacy of British
rule. It is based on the notion that the best criminal code can be of little use to a community unless
there is good machinery for the infliction of punishment. In 1864, the Second Commission of Inquiry
into Jail Management and Discipline made similar recommendations as the 1838 Committee. In
addition, this Commission made some specific suggestions regarding accommodation for prisoners,
improvement in diet, clothing, bedding and medical care. In 1888, the Fourth Jail Commission was
appointed. On the basis of its recommendations, a consolidated prison bill was formulated.
Provisions regarding jail offences and punishment were specially examined by a committee of
experts on Jail Management. In 1894, the draft bill became law with the assent of the Viceroy. It is
this Act which forms the basis for the present-day jail management and administration in India. This
Act has hardly undergone any substantial changes since its inception. However, the process of review
of prison problems in India continued. In the report of the Indian Jail Committee 1919-20, for the
first time in the history of prisons, 'reformation and rehabilitation' of offenders were identified as the
objectives of prison. The Government of India Act 1935 resulted in the transfer of the subject of jails
from the Central List to the control of Provincial Governments and henceforth reduced the possibility
of uniform implementation of a prison policy at the national level. Thus, State Governments have
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their own rules and regulations for the day to day administration of prisons, maintenance of
prisoners, and prescribing procedures.
THE PAKWASA COMMITTEE
After independence, various Committees were appointed to improve the condition of prisons in
India. The Pakwasa Committee in 1949 suggested the system of utilizing prisoners as labour for road
work without any intensive supervision over them. It was from this time onwards that a system of
wages for prisoners for their labour was introduced. Subsequently, certain liberal provisions were
also introduced in jails manuals by which well-behaved inmates were rewarded with remission in
their sentence. In 1951, the Government of India invited the United Nations expert on correctional
work, Dr. W.C. Reckless, to undertake a study on prison administration and to suggest policy reforms.
His report titled 'Jail Administration in India' made a plea for transforming jails into reformation
centers. He also recommended the revision of outdated jail manuals. In 1952, the Eighth Conference
of the Inspectors General of Prisons also supported the recommendations of Dr. Reckless regarding
prison reform. Accordingly, the Government of India appointed the All India Jail Manual Committee
in 1957 to prepare a model prison manual. The committee submitted its report in 1960. MODEL
PRISON MANUAL The Model Prison Manual 1960 is the guiding principle for prison management in
India. On the lines of the Model Prison Manual 1960, the Union Ministry of Home Affairs, in 1972,
appointed a working group on prisons. It brought out in its report the need for a national policy on
prisons. It also made an important recommendation with regard to the classification and treatment
of offenders and laid down certain principles.
THE MULLA COMMITTEE
In 1980 the Government of India set-up a Committee on Jail Reforms under the Chairmanship of
Justice A. N. Mulla. The Mulla Committee submitted its report in1983. Some of the prominent
recommendations of the Mulla committee are:  Improving prison condition by making available
proper food, clothing, sanitation,
 The prison staff to be properly trained and organized into different cadres. Setting up an All India
Service called the Indian Prisons & Correctional Service.
 After-care, rehabilitation and probation to be an integral part of prison service.
 The press and public to be allowed inside prisons and allied correctional institutions periodically, so
that the public may have first-hand information about the conditions of prisons and be willing to co-
operate in rehabilitation work.
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 Undertrials in jails to be reduced to bare minimum and they be kept away from convicts.
Undertrials constitute a sizable portion of prison population. Their number to be reduced by speedy
trial and liberalization of bail provisions.
 The Government may make an effort to provide adequate financial resources.

THE KRISHNA IYER COMMITTEE:

In 1987, the Justice Krishna Iyer Committee was appointed to study the situation of women prisoners
in India. It recommended the induction of more women into the police force in view of their special
role in tackling women and child offenders.

SUBSEQUENT DEVELOPMENTS
Following the Supreme Court direction (1996) in Ramamurthy vs State of Karnataka to bring about
uniformity of prison laws and prepare a draft model prison manual, a committee was set up in the
Bureau of Police Research and Development (BPR&D). In 1999, a draft Model Prison Management
Bill (The Prison Administration 7 and Treatment of Prisoners Bill, 1998) was circulated to replace the
Prisons Act 1894 by the Government of India to the States but this Bill is yet to be finalized.
Meanwhile, a Model Prison Manual was prepared in 2003 by evolving national consensus on relevant
issues relating to prison reforms in India and circulated to all State Governments for guidance. With
the passage of time and after having gained a better understanding of ground realities, a need was
felt to revise and update the Manual to reflect the developments of the past decade. In the
meantime, the Supreme Court had also issued several directions. An expert committee was
constituted in 2014 to revamp the Model Prison Manual prepared in 2003. The expert committee
extensively reviewed the model prison manual and came up with a draft Model Prison Manual in
2016. The Model Prison Manual 2016 was finalized with the approval of the Home Ministry and
circulated to all States and Union Territories for their guidance. The new manual aims at bringing
uniformity in laws, rules and regulations governing prison administration and management of
prisoners all over the country. Its key features include an emphasis on prison computerization,
special provisions for women prisoners, focus on after care services, prison inspections, rights of
prisoners sentenced to death, repatriation of foreign prisoners, enhanced focus on prison
correctional staff, to name a few.
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The Supreme Court, in the matter of Suo Moto Writ Petition (Civil) No. 406/2013 titled Re: Inhuman
Condition Prevailing in 1382 prisons in India, asked the Centre and all States to implement its
directions on prison reforms including filling up of vacancies of jail staff across the country and devise
a scheme to audit their accounts.

Educational facilities in prison:

There is a proven correlation between illiteracy, innumeracy and offending. Most of the prisoners
have access to educational courses and training while in prison. The objective is to enable them to
gain the skills and the qualifications that will help them to find employment on release. Research
shows that the prisoners who gain the employment after their release are far less likely to re-offend.
The correctional system in the United States (USA) is experiencing a metamorphosis. Consequently,
now is a critical time for the development of robust theories of the prison culture. Prison populations
continue to soar at alarming rates, and laws impacting the prison population continue to change.
Determinate sentencing laws, including Three-Strikes Laws and habitual offender statutes, have
helped give the prison population a new dynamic, as the number of elderly offenders continues to
grow. Other offender groups who are represented in increasing proportions are those inmates with
the terminal diseases, such as AIDS, and female offenders. It is completely and precisely possible that
this crossroad in corrections cannot be fully understood in the context of traditional models of the
prison culture. Even if theoretical models take on a new composition, elements of the classical
models will inevitably remain, as they are still relevant in gaining an understanding of the prison
culture.

OPEN PRISONS:
The concept of Open Prisons
The paradigm of Reformative Punishment does not support the traditional inhuman jails with
bars but is more liberal and supports the concept of open prisons, which is a trust-based
prison with minimum security.
The concept of Open prisons was first developed in U.K in the 1930s and was based on the
idea of ‘carrots’ rather than ‘sticks.
This open prison helps the prisoner to gradually connect with the world before the release.
Many states have an open prison but do not accommodate any prisoners.
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The reasons for this overcrowding and at the same time under-utilization could be because
the Jails are a part of the state list and hence a collaborative approach cannot be adopted by
the states.
Open Jails are prisons without boundaries and cellsIn open jails the prisoners are given the
liberty:
 To live with their families
 Allowed to find employment
 Prisoners can move out of the prison for their work and are supposed to come back to
the prison campus after their working hours.

The open jails in India involve the prisoners in activities like:

 Farming,
 Animal husbandry etc.
Convicts can be sent to Open jails for two purposes
 For the purpose to slowly cut down his/her level of socialization, instead of directly
confining the convict in a closed prison, as this can negatively affect the mental health
of the prisoner.
 Secondly, in order to help the prisoner to slowly re-socialize with the world. While
serving in the closed prison, the prisoner is bound to lose touch with the outside world
and hence wouldn’t be able to rehabilitate himself after the release.
The money earned by these prisoners is spent by them for their families and no amount
except a small administration charge is to be paid to the Jail.
Every morning at 6 a.m. a roll call takes place after which the prisoners are allowed to move
out and another roll call is scheduled at 7 p.m., till then the prisoners are expected to return to
the prison.
These prisons exist for almost 8 decades now, however, no complaints of any prisoner
escaping have come forward.
The condition open prisons in India
The conditions of prisons in India has been severely criticised. There have many cases of
 Custodial violence
 Custodial deaths
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 Suicides, and
 Overcrowding etc.
The Supreme Court has time and again given directions on Prison Reforms, In many cases,
the Supreme Court has actively endorsed the Open Jail system.

Criticisms of the Open Jails in India:

 Unnecessary and arbitrary provisions for ineligibility, which filter out many deserving
convicts.
 Under-utilisation of the Open Prisons. These prisons have a capacity to accommodate
25776 prisoners however, only 3786 prisoners are currently in these prisons (as of
2015). This shows that despite the heavy overcrowding in the closed prisons, open
prisons are vacant.
 The prisoners in most states are selected by a committee, who have no accountability
over them, as they are not expected to provide reasons for their selections. This leads
to partiality and corruption.
 No measures are taken for the convicts beginning their sentence. At least, semi-open
prisons should be made open for the fresh convicts.
 No provision of Open Jails to under trial prisoners.
 Inadequate Open Prisons in every state. Some states are concentrated with Open
Prisons while some have just one and no Union Territory in India has an Open Prison.
Due to the state list subject, this inequality exists among different states.
 Open Prisons are the only rehabilitative prisons in India. Which also favor only a
small number of convicts. There is a need for more rehabilitative provisions for other
convicts, in order to reduce the amounts of custodial deaths.
 The rules and laws governing the selection and administration are extremely old and
thus unfit for the present situations.
Reforms needed in the status quo:
 The number of Open Prisons and better utilization of the currently existing ones
through amendments to the rules and relaxation of the strict eligibility criteria.
 Efforts should be taken to move the subject of prisons to the union list. As this will
bring in uniform reforms and every prisoner will get similar rights.
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 In order to bring accountability in the selection procedure, the state committee should
be compelled to provide reasons to the Chief Minister of the concerned state for the
selection made. These documents should also be made available within the ambit of
RTI so that common people can also get access to it.
 Semi-open Jail in order to provide rehabilitation to mentally disturbed prisoners,
semi-open jails should be promoted. They do not provide complete liberty, but there
are no prison cells and prisoners are provided with employment opportunities within
the Jail campus. One of the finest semi-open jail in India is the Tihar Semi-Open Jail
in Delhi.
 Supreme Court or the concerned High courts should also be given the jurisdiction to
allow certain prisoners to directly go to the Open Prison.
 Every prisoner whether in open or closed prison should be made aware of his/her
rights and should be informed about the process of selection to open prisons. This will
not only give the required information to the prisoners but will also reinforce good
behaviour among these prisoners.

Theories and Kinds of Punishment:

Administration of Justice is the primary functions of the State, is generally divided into
administration of Civil Justice and Administration of Criminal Justice. The main purpose of
Administration of criminal Justice is to punish the wrongdoer. It is the State which punishes
the Criminals. From the ancient times, a number of theories have been given concerning the
purpose of punishment.

Punishment Meaning:
Punishment is a process by which the state inflicts some pain to the persons or property of
person who is found guilty of Crime.

Object:
The Object of Punishment is to protect society from mischievous and undesirable elements
by deterring potential offenders, by preventing the actual offenders from committing further
offenses and by reforming and turning them into law abiding citizens.
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Theories of Punishments:
Theories of Punishment are as follows
i) Deterrent Theory
'To deter' means, " to abstain from action/ doing ". Deterrent means, “infliction of severe
punishments with punishments with a view to prevent the offender from committing the
crime again."
According to this theory, the object of punishment is not to only prevent the wrongdoer
from doing a wrong a second time, but also to make him an example to others who have
criminal tendencies. Salmond considers deterrent aspects of criminal justice to be the most
important for control of crime.
A Judge once said: " I don't punish you for stealing the sheep but so that sheep may not
be stolen." The aim of punishment is not revenge but terror.
According to Manu "penalty keeps the people under control, penalty protects them,
penalty remains awake when people are asleep, so the wise have regarded punishment is a
source of righteousness"
According to Paton " The deterrent theory emphasis the necessity of protecting society,
by so treating the prisoners that others will be deterred from breaking law.
The deterrent theory was the basis of punishment in England in the Medieval Period.
Sever and Inhuman punishments were order of the day and inflicted even for minor offenses
like pick pocketing and stealing etc. The culprits were subjected to the sever punishment of
death by stonning and whipping.
In India during the Mughal period, the penalty of a death sentence or mutilation of the
limbs was imposed even for the petty offenses of forgery and stealing etc. Even today in moat
of the Muslim countries,Such as Pakistan, Iraq, Iran, Saudi Arabia, the deterrent theory is the
basis of Penal Jurisprudence.

Criticism :
There is a lot of criticism of the deterrent theory of punishment in modern times. It has
been criticized on the grounds that it has proved ineffective in checking crimes and also that
excessive harshness of punishment tends to defeat its own purpose by arousing the sympathy
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of the public towards those who are given cruel and inhuman punishment. Hardened
criminals are not afraid of punishment. Punishment losses its horror once the criminal is
punished.

ii) Retributive Theory

'Retributive' means , punitive or payback or make a return to." In Primitive society
punishment was mainly retributive. The person wronged was allowed to have revenge against
the wrongdoer. The Principle of 'an eye for an eye', 'a tooth for a tooth ', a nail for nail, limb
for limb was the basis of criminal administration.
According to Justice Holmes 'It is commonly known that the early forms of legal
procedure were grounded in vengeance.'
According to Sir John Salmond the retributive purpose of punishment consists in avenging
the wrong done by the criminal to society.
The idea behind this theory is to make the offender realize the suffering / pain. The
advocates of this theory plead that the criminal deserve to suffer. The suffering imposed by
the State in its corporate capacity is considered the political counterpart of individual
revenge. It is urged that unless the criminal receives the punishment he deserves, one or both
of the following effects will result, namely, the victim will seek individual revenge, which
may mean lynching (killing or punishing violently ), or the victim will refuse to make a
complaint or offer testimony and State will therefore be handicapped in dealing with
criminals . The modern criminology discards retribution in the sense of vengeance, but in the
sense of reprobation, it must always be an essential element in any form of punishment.
Criticism:
Critics of retributive theory points out that punishment per se is not a remedy for the
mischief committed by the offender. It merely aggravates the mischief. Punishment in itself
evil and can be justified only on the ground that it yields better result. Revenge is wild
justice. Retribution is only a subsidiary purpose served by punishment.

iii) Preventive theory:

Preventive theory is also known as 'theory of disablement.' According to this theory,
punishment is based on the proposition, "not to avenge crime but to prevent it" The aim of
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this theory is to disable the criminal. Offenders are disabled from repeating the crime by
awarding punishments, such as death, exile or forfeiture of an office. By putting the criminal
in jail, he is prevented from committing another crime.
The supporters of this theory recognize imprisonment as the best mode of punishment
because it serves as an effective deterrent as also a useful preventive measure. Bentham
supported the preventive theory because of its humanizing influence on criminal law.
According to Justice Holmes " There can be no case in which the law-maker makes certain
conduct criminal without his thereby showing a wish and purpose to prevent that conduct.
Prevention would accordingly seem to be the chief and only universal purpose of punishment.
The law threaten certain pains if you do certain things, intending thereby to give you a new
motive for not doing them. If you persist in doing them, it has to inflict the pains in order that
its threats may continue to be believed."
According to Paton : " The Preventive theory concentrates on the prisoner and seeks to
prevent him from offending again in the future. The death penalty and exile serve the same
purpose.
Criticism:
Critics points out that Preventative Punishment has the undesirable effect of hardening first
offenders, or juvenile offenders, when imprisonment is the punishment, by putting them in
the association of Harden Criminals.

iv) Reformative Theory:

According to Reformative theory, the object is of punishment is the reformation of
criminals. This theory seeks to bring about a change in the attitude of offender so as to
rehabilitate him as a law abiding member of society. Even if an offender commits a crime
under certain circumstances, he does not cease to be a human being. The circumstances under
which he committed the crime may not occur again. Crime is a mental disease, caused by
different anti-social elements. Therefore the mental cure of criminals rather than awarding
punishment will serve the purpose. If the criminals are educated and trained, they will be
competent to behave well in the society.
The object of the punishment should be reform the offender. The criminal must be
educated and taught some art or craft or industry during his term of imprisonment, so that
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they may be able to lead a good life and become a responsible and respectable citizen after
release from jail. While awarding punishment judge should study the character and age of the
offender, his early breeding, family background, his education and environment, the
circumstances under which he or she committed the crime, the motive which prompted him
or her indulge in criminal activities, etc. The object of doing so is to acquaint the judge with
the circumstances under which the offence was committed so that he could award punishment
that could be serve the ends of justice.
Criticism :
Critics of this theory state that if Criminals are sent to prison to be transformed into good
citizens, a prison will no longer be a 'prison' but a dwelling house.

This theory has been proved to be successful in case of young offenders.

v) Expiatory Theory:
Expiatory theory of Punishment is based on morals. According to this theory repentance or
expiation by offender itself is a punishment. If the offender expiates or repents, he must be
forgive. Expiatory theory of punishment was prevalent in ancient Indian criminal law.
Expiations were performed by way of uttering mantras, fasting or even burning oneself to
death.

vi) Theory of Compensation

According to Theory of Compensation the object of punishment must not be merely to
prevent further crimes but also to compensate the victim of the Crime.
Criticism:
Critics points out that it tends to oversimplify the motive to crime.

Recidivism:
Recidivism can be defined as the tendency of habitual offenders to commit crimes.
Recidivism is a tendency to relapse into a previous condition or mode of behavior; especially:
relapse into criminal behavior. It is the tendency of criminals to revert back to their previous
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criminal habits and behaviors. Involvement in the same crime after release, relapse into the
same condition of behavior, reconviction or punishment for the same offence more than once
comes under the scope of the term. This concept of recidivism is an important component of
criminology because this pattern of behavior of criminals can be attributed to the causative
factors that drive them to do so. These causes/ factors form the study of criminology and are
very essential to be figured. This will help us arrive at conclusions and outcomes to check the
increasing rate of crimes, committed specially by recidivists.
Causes of Recidivism
1. Intensive Supervision Probation:
A study by the National Institute of Justice, United States and RAND corporation evaluation
for the Bureau of Justice intended to answer the question of how intensive supervision
probation (ISP) relates to recidivism.The demonstrations found out the ISPs are not very
successful in reducing recidivism (new arrests and technical violations). ISP programs were
found to be effective in surveillance and as intermediate programs. The study came to two
conclusions why such alternative mechanisms are not effective in stopping recidivism.
a. Overworking of the probation officers
b. Escape of the offenders under regular surveillance programmes due to the lack of the strict
supervision on them
2. Unemployment:
Unemployment forms one of the major reasons for probation failure and the increase of the
offenders slipping back to the crime culture again. Unemployment inevitably ends up being
the cause and effect of recidivism. An unemployed probationer is unable to meet the
probation fees, court costs, etc., gradually ending up violating the probation. To seek
recourse, he may choose to earn by engaging in the same illegal means, which gradually
results in high recidivism in offenders. It’s a general observation that the unemployed have
little commitment to conformity, i.e. they have little to lose while committing a new crime
after their probation. The fact that most of the convicts have garnered little to no skills and
have a scant employment history, they often fall in the unskilled or semi-skilled categories
making it extremely difficult for them to get jobs. The criminal status also plays negatively
with their ability to obtain jobs.
3.Substance Abuse:
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Influence of drugs and alcohol are the main instruments for the commission of crime. Most
cases that are reported before the police authorities comprise of Driving underInfluence,
Driving while intoxicated or boating while intoxicated. The National Crime Records Bureau
of India reported that in the year 2015, a total of 42% of Drunk Driving cases were reported
which ended rather fatally. Most of those people who are heavily dependent on the drugs seek
the route of crime to obtain the money that is required for drugs. Drugs and alcohol takes
three forms in the life of a convict:
a. As a lubricant, it brings predisposition to criminality for an offender, for e.g. drugs makes a
sex-offender more vulnerable into relapsing and committing the crime again.
b. As an engine for the commission of the crime.
c. As a motivation for one seeks to have a source of income by drugs or either to obtain drugs
thus making him sort to illegal ways to obtain them.
4. Criminal History:
In 2014, the National Crimes Records Bureau reported that almost 7.8% of the total old
offenders were of a kind who had been convicted more than three times for the same crime or
a different offence of the same nature. Various remedies such as ‘Three strikes, you’re out’,
‘Standard offender’ laws have often been applied in the foreign jurisdictions but have had no
concrete results. Various jurists and researchers put emphasis on the judiciary taking into
consideration with its intuitiveness and wisdom those convicts which appear to be career
criminals so as to provide them with larger space and proper prison systems so to prevent
them to relapse into committing crimes after their sentence has ended.
5. Seriousness of the offence:
Researchers have found in a RAND study that those involved in crimes such as theft,
burglary, robbery and property theft crimes are most likely to commit recidivism for the sole
reason that the aftermaths of such offenses are not as severe as the serious offences. The
persistent nonviolent criminality of the nature of the offense makes it more likely to lead
offenders to continue criminality. A contradiction in this aspect is the rise in the rates of sex
offenders despite the severity of its offense. But as sexual offenses are committed in the brink
of lapse of rationality for the personal gratification of needs, it makes it easier for a sex-
offender to relapse into recidivism.
6. Age/Gender/Education:
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The age, gender and education of a convict are very relevant to be considered while
predicting whether that person is likely to relapse into recidivism. The likelihood of a male,
who has not completed his high school with a prior arrest record to slip back to previous
offences, is more likely than others. The basic understanding of the courts in India are that the
women of whatever age or background, are care-givers and are needed more at home by
either the spouse or child and thus are less likely to be sent to the prisons. As they make up
less in the parole population, it reduces the tendency for them to relapse into the previous
crimes. The fact that most concerns the jurists, legislators and social welfare workers is the
rising tendency of juvenile delinquents returning back to the dangerous crime culture after
they have served their time in care and protection centers or in community service. The
tendency of juveniles relapsing increases, following a multitude of factors, such as dropping
out of schools and other educational institutions, lack of support from family members, the
easy availability of income source through crime-based activities, etc. The recent amendment
in the Juvenile Justice (Care and Protection) Act, 2015, with its increased strictness to start
treating juveniles as adult offenders in courts, lacks in its fundamentals to deal and provide
correctional and remedial methods for juvenile sex offenders, juvenile recidivists and girls
who have committed serious offences.

Preventive Measures to Control Recidivism:

Repetition of offences is a major crime that has varied detrimental consequences in the
society. This crime needs to be prevented and curbed to ensure that a crime of similar nature
by habitualoffenders is not committed again and the offenders are released to become better
citizens and contribute in the harmonious working of the society. Preventive measures need to
be adopted in the criminal justice system to control recidivism. Some of them, as categorized
in broad heads are:
1. Effective Integrated Reforms and Treatment Programmes Prison Programmes are an
effective way to facilitate conditions to prisoners that ensure their reformation and
rehabilitation after their release. These programmes can also cater to such development and
growth of these prisoners that they become skilled in a short period of time and become able
to maintain their livelihoods post release.
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2. Effective Prison Administration Prison administration needs to be checked at regular

intervals. It should facilitate security of prisoners on the basis of different security
requirements with basic minimum facilities to all.
3. After-care and Rehabilitation ProgrammesThese programmes entail a period of
necessary recovery for a released prisoner who suffers from such psychological damage that
puts him in a trauma of social ostracism.