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Dedication

This book is dedicated to my parents,

Mst Safale Rahaman& Md. Azizar Rahaman

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Chapter 1

Crime and criminology

“Crime is eternal – as eternal as society. It is best to face the fact that crime cannot be
abolished except in a non-existent utopia” --- Mr Frank Tennenbaum

General Concept of Crime

The word ‘Crime’ derived from Latin word ‘crimen’, which meant” charge” or “cry of distress”.
According to old English, the word ‘crime’ meant – “sinfulness” or “wickedness”.
Islamic history states that, the first crime had occurred when the son of Prophet Adam, named
Mr Kabil murdered his own brother Mr Habil.
The criminal law of each country defines the criminal offences, such as - theft, rape, murder
etc. and to maintain a desired social order, the Government or State could impose more
formalized or stricter systems of social control.
The Government or State could create a catalogue of crimes called the criminal code (but in
some common law countries no such comprehensive statute exists) and compel its citizens to
conform to codes.
If any person is found guilty, the offender may be sentenced to punishment, such as -
community sentence, imprisonment, life imprisonment, fine or even death. While every crime
violates the law, not every violation of the law counts as a crime. Breaches of private law (torts

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and breaches of contract) are not automatically punished by the State but could be enforced
through civil procedures in the country. Therefore, ‘Crime’ is an action or illegal act which
violates criminal law and may be prosecuted by the State and if found guilty will be punishable
by law.

Diagram of Crime
Illegal act done
Violation of law

CRIME
Prosecution by State
Punishable by law
A criminal act should have the following two cardinal principles of criminal liability: (i)
Nullum crimen sine poena or no crime without punishment;
(ii) Nulla poena sine lege or no punishment without law.

Definition of Crime

Generally speaking crime is an unlawful act, which is punishable by Statutory or State law and
it is considered as a subject matter of criminology, which technically means a form of anti-
social
behaviour that violates public sentiments to such an extent as to be forbidden by statute.

a) Statutory Definition:
The legal definition of crime is that it is the behaviour or an activity in violation of the legal
code.
According to section 40 of the Penal Code 1860, crime or offence is defined as follows:

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“Except in the chapters and sections mentioned in clauses 2 & 3 of this Code, the word
‘offence’ denotes a thing made punishable by this Code or under any special/local law”.

Mr. Paul W. Tappan defined ‘Crime’ as:

“An intentional act or omission in violation of criminal law, committed without defence or
justification and sanctioned by law as felony or misdemeanour”
Act done with intention
Violation of criminal law
No defence/justification

CRIME
According to Prof Sutherland: “Crime is a symptom of social disorganisation”
According to Donald Taft: “Crime is a social injury and an expression of subjective opinion
varying in time and place”
Mr Cross & Jones defined crime as: “A legal wrong the remedy for which is punishment of the
offender at the instance of the State”
According to Raffeale Garafalo: “Crime is an act which offends the basic sentiments of ‘pity’
and
‘probity’ or an anti-social behaviour which is injurious to society” Examples of conduct crimes
are: (a) Perjury
(b) Theft
(c) Making off without payment
(d) (e) Murder
(f) Robbery
(g) Possession of drugs or a firearm etc.

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c) Social Definition:
The social definition of crime is that it is behaviour or an activity that offends the social code
of a particular community. Mr Caldwell has explained it as “an act or a failure to act that is
considered to be so detrimental to the well-being of a society, as judged by its prevailing
standards, that action against it cannot be entrusted to private initiative or to haphazard
methods but must be taken by an organised society in accordance with tested procedures”.

Characteristics/Elements of Crime
The following elements (all) must be present to consider an act as a crime:
(i) The act must have harmful impact on people;
(ii) The act must be done with intention to harm people;
(iii) The act must be prohibited or forbidden by the penal law;
(iv) There must be a ‘causal relation’ between harmful act and intention; (v) The offender has
no defence/justification for committing the harmful act;
(vi) Penal law must prescribe some kind of punishment for the harmful act.
Actus Reus + Mens Rea
Causation
Prohibited by penal law
No defence /Punishment

[R v Pittwood (1902) TLR 37] or [DPP v Smith (1960)]

Generally there is no liability under criminal law unless there is a guilty of mind. The Penal
Code of Bangladesh 1860 provides exceptions, which negate criminal liability due to lack of
mens rea. These are:
Sections 76:Nothing is an offence, which is done by a person who is, or who by reason of a
mistake of fact and not by reason of a mistake of law in good faith believes himself to be,
bound by law to do it. For examples:
(a) A, a soldier, fires on a mob by the order of his superior officer, in conformity with the
commands of the law. A has committed no offence.

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(b) A, an officer of a Court of Justice, being ordered by that Court to arrest Y, and, after
due enquiry, believing Z to be Y, arrests Z. A has committed no offence.
Section 79:
Nothing is an offence, which is done by any person who is justified by law, or who by reason
of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be
justified by law, in doing it. For example: A sees Z commit what appears to A to be a murder.
A, in the exercise, to the best of his judgment, exerted in good faith of the power which the
law gives to all persons of apprehending murderers in the act, seizes Z, in order to bring Z
before the
proper authorities. A has committed no offence, though it may turn out that Z was acting in
self-defences

Criminology

Introduction:
The genesis of the term criminology is from the Latin word ‘crimen’ (crime) and from Greek
word ‘logia’ (science), therefore, criminology is the science, which deals with crime and
criminals.
-
General definition:
Criminology generally means - ‘the scientific study of the nature, causes, control, extent and
prevention of criminal behaviour’. Criminology is an interdisciplinary field in the behavioral
sciences, drawing especially upon the research of sociologists, psychologists, psychiatrists,
social anthropologists, as well as scholars of law.
The term criminology was coined in 1885 by Italian law professor Raffaele Garofalo as
criminologia. Later, French anthropologist
Paul Topinard used the analogous French term criminologie.So, easily, we can say that the
text, which deals with crime and provides knowledge about crime & criminal that is
criminology.
-
Scholar’s definition:
Prof. E. H. Sutherland describes criminology as: “The body of knowledge regarding crime as
a social phenomenon. It includes within its scope the processes of making laws, of breaking
laws and of reacting towards the breaking law”

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According to Mr Taft:
“Criminology is largely for the study of crime and criminals as defined by law; also the study
of ‘near crimes’ and ‘quasi-criminals’ because they are part of the cause of crime” According
to Mr Elliott:
“Criminology is a science of crime and its treatment”8At present, criminology science glitters
as a landmark in the annals of history taking its fold the following disciplines – anthropology,
biology, psychology, sociology, police science, political science, economic, divinity, pathology,
jurisprudence, law, psychiatry and so on.
In view of Justice V. R. Krishna Iyer “criminology is for the community and criminologists are
the unacknowledged legislatures of the world”.
-
Branches of criminology:
According to Mr. Sutherland and Mr. Cressey, there are three main branches of criminology:
(i) Sociology of law; (ii)
Criminal Etiology;
(iii)Penology.
(i) Sociology of law: Criminologist examines and evaluates the origin, nature, application
and modification of penal laws.
(ii) Criminal Etiology: Criminologist try to identity the relevant/main causes of criminal
behaviour.
(iii) Penology: Criminologist explores various mechanisms of punishing the offenders and
penal policies.

Nature & scope of criminology

The interests of criminologists include the study of nature of crime and criminals, origins of
criminal law, aetiology of crime, social reactions to crime, and functioning of law-enforcement
agencies and penal institutions. It can be said that broadly criminology directs its enquiries
along three lines: first, it investigates the nature of criminal law and its administration and
conditions under which it develops; second, it analyses the causation of crime and the
personality of criminals; and third, it studies the control of crime and the rehabilitation of
offenders.

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Therefore, criminology includes within its scope the activities of legislative bodies, law-
enforcement agencies (police), judicial institutions (courts), correctional institutions
(prisons) and educational, private and public social agencies.

importance of Criminology
• The most significant aspect of criminology is its concern for crime and criminals.
• The ultimate goal of criminology is to determine the root causes of criminal behavior and to
develop effective and humane means for preventing it.
• Criminology helps society understand, control, and reduce crime
. • It helps understand the mindset of criminals, why they commit crimes, and the factors that
affect them. This helps in the proper allocation of resources to control crime.
• Criminology also seeks to create conditions conducive to social solidarity in as much as it
tries to point out what behaviors are obnoxious and anti-social.

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Chapter 2
Schools of Thought

General Concept:
The present form of criminology is a result of studies, researches and contribution of the
eminent scholars and criminologists of the world. The followers of the thought and ideals of
some prominent criminologists, who propounded the new thought or theory in this field, are
collectively called ‘school’. The founder of modern criminology Mr. Cesare Bonesana
Marchese de Beccaria at first started to study criminals on a scientific basis. From the study
of Mr. Beccaria, ‘theories of criminology’ or ‘the schools of criminology’ originated.

Mr Sutherland explained the meaning of ‘School of Criminology’ and pointed out that it
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. Different schools of thought
have developed during mid-18th century to mid-20th century, which are: (a) Pre-classical
(b) Classical
(c) Neo-classical
(d) Positive
(e) Sociological
(f) Socialist
Every school represents the social attitude of people towards crime and criminal in a given
time. They also explain crime in its own manner and suggest punishment to prevent those
crimes.

Pre-classical School

General Concept:
This school explained the causation of crime in terms of demonology, witchcraft and
supernatural powers. It was dominated by the scholasticism of St. Thomas Acquinas. During

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17th and 18th century in Europe, it was believed that people committed crime due to the
influence of ‘devil’ or ‘demon’ but not from his own free will.

Characteristics:
The King was believed to be the representative of God and had the Divine Right to give
punishment to the criminals to keep
them away from sinful or criminal acts. To relieve the victim (criminal) from the influence of
the devil, people used to do worship, sacrifices, ordeals. The oaths and ordeals played a very
important role to determine the guilt of the accused. With the lapse of time and the advent of
the reformers, such as - Mr Hobbs, Mr Donte, Mr Machiavelli, Mr Martin Luther etc., who
questioned the validity of trial by ordeal, as a result, the school vanished from the scene of
criminology.

The Classical School

General Concept:
The classical school of thought was based on ‘hedonism’ i.e. a
person governs his behaviour by consideration of pain and pleasure. In 1775, the ‘hedonism’
theory was firstly introduced by Mr. Cesare Beccaria and later developed by Mr. Jeremy
Bentham. According to the hedonistic doctrine, the criminals are simply punished in the
prescribed ways by the State. The basic idea was that the crime would be minimal if the fear
of the State agents is maximal. Mr John Locke propounded that the aim of punishment should
be not to torment and afflict a sentient person but it is to prevent the criminal from doing
more damage to his co-citizens and to deter others from doing likewise’ and pleaded for the
abolition of the death penalty.

Characteristics:
The main characteristics are:-
(i) All people have ‘free will’ to choose how to act;
(ii) ‘Pain and pleasure’ motivates people to commit crime;
(iii) Punishment should be limited, certain and swift only to control criminals behaviour;
(iv)The criminal justice system needs to be organized to prevent crime rather than punishing
the criminals. The greatest achievement of this school was that it suggested a substantial
criminal policy, which was easy to administer without resort to the imposition of arbitrary
punishment.

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Mr Beccaria’s view provided a background for the subsequent criminologists to come out with
a rationalised theory of crime
causation, which eventually led the foundation of modern criminology & penology. This
school came about at a time when major reform in penology occurred, with prisons developed
as a form of punishment. Also, during this period saw many legal reforms, the French
Revolution, and the development of the legal system in the United States.

Neo-classical School

General Concept:
Certain problems arose in the implementation of the classical (free will) theories. Treating of
the minors, idiots, insane, psychopathic and other incompetents similarly on the basis of the
act committed rather than an individual offender was also unrealistic. Consequently, a neo-
classical school came into existence by:
(i) Modification of the ‘free will’ doctrine, which could be affected by incompetence, insanity
or other conditions as well as pre-meditation;
(ii) Acceptance of the validity of mitigating circumstances;
(iii) The doctrine of responsibility was modified to provide mitigating punishment in cases
of conditions of insanity, age and other conditions that would have an effect on the
‘knowledge and intent of the offender at the time of committing the crime’;
(iv)Reformation in the court procedures. The neo-classical school had developed during 18th
to 19th century, mainly by Mr. Jeremy Bentham.

Characteristics:
The main features or characteristics of this school are:-
(i) Mental disorder of a person deprives a criminal to control his conduct and thus commits
crime;
(ii) This school mainly focused on ‘mens rea’ of the criminal.
(iii) Punishment should be based on the ‘criminal intention’ of the offender, i.e. crime and
punishment should be equivalent;
(iv) All criminals must be separated or segregated from the society;

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(v) A mentally ill (insane) criminal who cannot distinguish between right or wrong, should
be treated differently from the mentally sound criminal. The origin of jury system in
criminal jurisprudence is essentially an outcome of the reaction of neoclassical approach
towards the treatment of the offenders.

Positive School

General Concept:
This school laid emphasis on the positive law, i.e. the legal findings and observations based
on proof and evidence. The school was developed during mid 1800s to early 1900s by Mr.
Lombroso, Mr. Ferri and Mr. Garofalo. The school presumes that criminal behavior is caused
by internal and external factors outside of the individual's control. The scientific method was
introduced and applied to study human behavior. Mr C. Lombroso, who is regarded as the
father of the modern
criminology, made a study of a large number of troublesome soldiers and found that a
criminal can be identified by certain physical characteristics such as – slanting forehead, long
earlobes or none at all, a large jaw, flattened nose, scanty beard, heavy supra orbital ridges,
either an excessive hairiness or absence of hair, either extreme sensibility or lack of sensibility
of pain. Mr C. Lombroso’s study of the solders also revealed that about 1/3rd of the prisoners
were ‘throwbacks’ or ‘biological reversions’ to the primitive savages or mere animals, 1/3rd
were borderline cases and 1/3rd were accidental or occasional offenders who probably would
not repeat their crimes.

Characteristics:
The main features or characteristics of this school are:
(i) The theory based on the ‘biological determination’ of the criminal, i.e. criminals were
physically inferior, therefore, had a tendency for inferior acts;
(ii) The scientific proof was required to determine criminality;
(iii) It laid greater emphasis on personality of the criminal rather than his criminal act;
(iv) Criminals should be given proper treatment to remove criminal behaviour from him;
(v) A criminal should be punished only according to the circumstances associated with the
act but not according to the gravity of the act/crime.
An English physician Mr Goring also made a comparison of several thousand criminals as
well as several thousand non-criminals and found no significant difference as far as the

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physical stigma is concerned, therefore, disproved Mr Lombroso’s theory. Later, the logic and
methodology of Mr Lombroso’s were retained and instead of physical characteristics, ‘feeble
mindedness’ was inserted to differentiate criminals from noncriminals. The ‘Intelligence
Testers’ explained that ‘feeble mindedness’ caused crimes because mentally ill person is not
capable to appreciate the consequences of their behaviour or meaning of law.

Sociological School

General Concept:
The sociological school is also called ‘Rational School’ and developed during 19th to 20th
century. Mr Sutherland sought to explain various processes through which a person becomes
criminal and suggested that human personality & culture has direct relation with criminality
of a person.

Characteristics:
The main features or characteristics of this school are:
(i) The causation of crime is located in social environment;
(ii) According to Mr William Healy, multiple factors, such as - poverty, mobility, low levels of
education, religion, economy, culture, political ideologies, unemployment, alcoholism,
over population etc. are the causes of committing the crime
(iii) Age, sex, race, occupational standards, residence etc. has direct bearing on crime
causation;
(iv) A person becomes criminal when he lives in a society that has the above mentioned
problems;
(v) It suggests the application of humanitarian methods for treatment of criminals.

Socialist School

General Concept:
In 1968, three young British sociologists namely, Mr Ian Taylor, Mr Paul Walton and Mr Jock
Youngformed the National Deviance Conference (NDC) who rejected previous explanations
of crime and deviance. They decided to pursue a new Marxist criminological approach and

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argued against the biological "positivism" perspective represented by Mr Lombroso, Mr Hans

Eysenck and Mr Gordon Trasler.

Characteristics:
The main features or characteristics of this school are:
(i) According to the Marxist perspective on crime, "defiance is normal - the sense that
men are now consciously involved…in assuring their human diversity." Thus Marxists
criminologists argued in support of society in which the facts of human diversity, be it social
or personal, would not be criminalized.
(ii) They, further, attributed the processes of crime-creation not to genetic or
psychological facts, but rather to the material basis of a given society.

Cesare Beccaria’s contribution on Criminology

▪ Cesare Beccaria is the founder and chief exponent of classical school.
▪ On Crimes and Punishments (1764) is the magnum opus of Beccaria in the field of
criminology.
▪ According to Beccaria, good punishment was one which was clear, swift, and appropriate.
▪ Beccaria advocated swift punishment as the best form of deterrent to crime.
▪ He considered prevention of crime more important than Punishment ▪ Punishment
should be dictated by legislation, and not decided by the courts.
▪ He argued that judges should not go beyond the prescribed punishment of law.
▪ He argued that punishment can only be justified if it is useful for public good.
▪ He openly condemned the death penalty on two grounds:
1. State does not possess the right to take lives
2. capital punishment is neither a useful nor a necessary form of punishment.
▪ He also argued that there should be a scale of crime and punishments.
▪ The crimes which tended to dissolve the whole society were first degree crimes.
▪ All actions contrary to the public good were designated as second-degree crimes.
▪ The actions having the smallest possibility of doing injustice to a private member of society
were the third degree crime.
▪ Beccaria believed in penology reform. He believed that old practices such as torture, death
penalty, and private trials were all unfair and ineffective.

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▪ There must be a proper proportion between crimes and punishments (the punishment
should fit the crime).
▪ One of the most effective curbs on crimes is not the severity of the punishment, but the
certainty that punishment will follow crime.

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Chapter 3
white-collar crime

Definition of white-collar crime

a) General definition:
Generally speaking, white-collar crime is a crime committed by persons who, often by virtue
of their occupations, exploit social, economic, or technological power for personal or
corporate gain. In a broader sense, it is a universal fact that the changes are
inevitable in every dynamic society. Some changes leave their vital effects on certain aspects,
which are directly connected with the changes of society, for example, the rapid increase of
urban civilization, industrial kind of crime and criminality, which can be termed as ‘solitary
professional criminality’ in the upper socio-economic class. It is known as ‘white-collar
crime’.

The term, coined in 1949 by the American criminologist Edwin Sutherland, drew attention to
the typical attire of the perpetrators, who were generally businesspeople, high-ranking
professionals, and politicians. Since Sutherland’s time, however, such crimes have ceased to
be the exclusive domain of these groups.

b) Scholar’s definition:
Prof. Sutherland defined white-collar crime as:
“A person of the upper socio-economic class, who violates the criminal law in the course of
his occupational professional activities” Moreover, developments in commerce and
technology have broadened the scope of white-collar crime to include cybercrime (computer
crime), health-care fraud, and intellectual property crimes, in addition to more-traditional
crimes involving embezzlement, bribery, conspiracy, obstruction of justice, perjury, money
laundering, antitrust violations, tax crimes, and regulatory violations.

According to Mr. Sutherland,

‘White-collar crime is committed by persons of respectability and high social status in course
of their employment’. Criticisms of Mr. Sutherland’s definition of white-collar crime are:

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(i) Certain white-collar crime is committed not only by the upper class but also by middle
or lower classes people;
(ii) White-collar crime is the violation of Penal Law and should be dealt by the criminal
court, instead, they are handled by the Administrative Tribunal, Commissions, Boards etc.;
therefore, the offenders cannot be called a criminal because in most cases they are not
convicted;
(iii) It does not require ‘mens rea’ which is an essential element of a crime. Whitecollar
crime causes more financial loses to the society than ordinary crimes. The objectives of
committing white-collar crimes are:
(i) Obtaining money, property or services;
(ii) Avoiding the payment or loss of money, property or services;
(iii) Securing business or personal interest.
The difference between white-collar crime and criminal syndicate is based on the extent of
presumed responsibility, for example – if Mr Jashim, who belongs to a respectable class of
society & has good reputation, sells any fake materials, would be committing a white-collar
crime. But if he were unknown to his victims, would be committing syndicate crime.

Elements of white-collar crime

Elements of white-collar crime are:
(1) White-collar crime involves violation of legal codes;
(2) It takes place directly or indirectly in connection with a legitimate occupation;
(3) It aims at gaining money;
(4) The crime is not against a specific individual or a firm but is against society at large;
(5) Any person who violates law in the course of occupational activity, is described as an
occupational offender;
(6) The offender (of this offence) does not regard himself as a criminal but considers himself
as respectable citizen;
(7) The organization engaged in illegal occupational activity adopts a policy of ‘fixing’ cases
through politicians, bureaucrats and influential people;
(8) The effect of this crime is much more serious for society than an ordinary crime.

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Causation of white-collar crime

White-collar crime are increasing due to the following reasons:

(i) Economic and industrial growth;
(ii) Social-economic change in the society;
(iii) Recent developments in IT;
(iv) Opportunities created by corporate culture;
(v) Greed, family pressure;
(vi) Lack of effective punishment;
(vii) Passiveness of the Government;
(viii) Passiveness of public towards these crimes;
(ix) The lengthy and defective procedures of the courts. -

White-collar crime in different professions

Some of the professions involving technical expertise & skill provide sufficient opportunities
for white-collar criminality, for examples:

Hoarding, Black Marketing and Adulteration:

Violation of foreign exchange regulations, export and import laws, adulteration of foods,
edibles, drugs, which are dangerous to health, are common examples of whitecollar crime.
Due to defective report of the expert or delay in examination of samples or lack of legal
expertise etc. the trial process frustrates the cause of justice and often results into unjustified
acquittal.

Tax-evasion:
Professionals such as - businessman, doctors, engineers, contractors, lawyers etc does not
disclose their real income while paying income tax, therefore, undisclosed money turns into
‘Black-money’.

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[Provident Investment Company v Income Tax Commissioner (1954) AIR 1954 Bombay 95]

Medical Profession:
Medical professionals commit white-collar crime when they issue false medical certificates,
helping illegal abortions, selling sample-drugs and medicines, fake and misleading
advertisement of cosmetics etc.
They violate the moral spirit and also commit crimes, which are not only anti-social but also
injurious to public health.

Engineering:
Engineers commit white-collar crime when they do underhand dealings with contractors,
suppliers, constructing building, canals, roads and bridges with substandard material. Their
act not only endangers public safety but also results into huge loss to public exchequer.

Legal profession:
Fixing release for criminals, fabricating false evidence, engaging professional witnesses,
violating ethical standards of legal profession etc. are examples of whitecollar crime
committed by lawyers. Even though there is a definite code of conduct for legal profession but
they resorts to different tactics in order to survive on the profession, which is becoming more
and more competitive with the passage of time.

Educational Institutions:
Providing fake details to government while taking authorization and other benefits, enrolling
fake and bogus students, selling fake degree on huge payment etc. are examples of white-
collar crime. The magnitude of the crimes has adversely affected the standard of education,
so needs to be tackled through stringent statutory measures.

Business:
Illegal contract, misrepresentation in advertising, infringements of IP laws, under labour
practice, bribing public officials, conspiracies in trade are examples of whitecollar crime by
the business world.
[P.V. Narasimha Rao v State (1998) AIR 1998 SC 2001] or
[A. R. Antuley v Union of India (1988) 2 SCC 602]

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Fake employment placement rackets:

There are many fake employment organizations, who advertise in the daily newspaper and
makes false promises to provide employment.
They collect registration fee from the unemployed people and then suddenly disappear with
huge cash.

Distinctions between white-collar crime and

blue-collar crime

The basic difference between white-collar crime and blue-collar crime are
given below:
(i) Based on definition:
Generally, crime committed by a person of respectively and high social status in the course of
his occupation, a person of the upper socio-economic class who violates the criminal law in
the course of his professional activities. These types of activities are considered as a white-
collar crime. On the other hand, crimes committed by general people, which is punishable by
statutory law, is called blue-collar crime.
(ii) Based on social status:
White-collar crime is committed by upper classes peoples of the society. On the other hand,
blue-collar crime is committed by middle or lower classes people of the society.
(iii) In the case of implement of physical action: In case of white-collar crime, to commit
these types of crime, no needs to implement physical action, such as – breach of trust.
In case of blue-collar crime, to commit these types of crime, needs to implement physical
action and almost in every cases, the misappropriate property needs to transfer to
another places, for example – robbery, dacoity.

(iv) In the case of beneficiary:

Generally, white-collar crime is committed by the beneficial persons of the society. On the
other hand, blue-collar crime is committed by those persons who does not enjoy benefit from
the society.

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(v) In the case of committing crime:

Mainly, white-collar crime is committed in business profession by the Government and
private officials. Blue-collar crime is committed in every sector in the society.
(vi) Based on intellectuality:
White-collar criminals are more intellectual than blue-collar criminals and generally, they are
intelligent, stable, successful and man of high social status.
(vii) In the case of punishment:
White-collar crimes are petty offences because they do not carry major punishment. Blue-
collar crimes carry major punishment due to the nature of offences.
(viii) In the case of dangerousness:
White-collar criminals are more dangerous to the society than ordinary or blue-collar
criminals.
(ix) In the case of expression:
Generally, white-collar crimes are indirect and unexpressed. On the other hand, bluecollar
crimes are committed by directly and expressly.

(x) In the case of legal step:

The blue-collar crimes are more seriously considered than the white-collar crimes by the law
enforcement authorities, public prosecutor and judges, and punishment is given accordingly,
for example imprisonment, fine, death penalty.
(xi) In case of Mens rea:
Mens rea or guilty mind is an essential ingredient of every blue-collar crime but statutes’
dealing with white-collar crime does not require mens rea in strict sense of the term.

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Chapter 4
cyber crimes

Definition of cyber crimes

Introduction:
Cyber crime is related to information and technology. With the invent of modern technology
cyber crime has emerged and has become a challenge to legislators, law enforcement
authorities, judges and people of the society.

General definition:
In simple term, cyber crime is a crime conducted via internet or some other computer
network. ‘Cyber threat’ is a threat that percolates or infiltrates through the use of computers,
internet or interconnected communication devices and could comprise of information stealth,
cyber warfare, virus attacks, cyber terrorism, hacking attempts, phishing, sabotage, singly or
in combination. From the information security perspective, a ‘threat’ is defined as the
potential to cause an unwanted incident in which an asset, system or organisation may be
harmed.

Scholar’s definition:
Dr. Debarati Halder and Dr. K. Jaishankar defined cyber crimes as:
"Offences that are committed against individuals or groups of individuals with a criminal
motive to intentionally harm the reputation of the victim or cause physical or mental harm to
the victim directly or indirectly, using modern telecommunication networks such as Internet
(chat rooms, emails, notice boards and groups) and mobile phones
(SMS/MMS)".62Computer Crime, E-Crime, Hi-Tech Crime or Electronic Crime is where a
computer is the target of a crime or is the means adopted to commit a crime. Most of these
crimes are not new. Criminals simply devise different ways to undertake standard criminal
activities, such as - fraud, theft, blackmail, forgery, and embezzlement using the new medium,
often involving the Internet. The distinction between cyber and conventional crimes lie in the
involvement of the medium in cases of cyber crime, i.e. there should be involvement, at any
stage, of the virtual cyber space medium in case of a cyber crime.

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Different Types of Cyber Crimes

General categories:
Generally, cyber crime may be classified into three categories:
(i) Cyber crimes against persons: harassment via e-mail, stalking, defamation,
unauthorized access to computer systems, indecent exposures, e-mail spoofing, fraud,
cheating and pornography etc.;
(ii) Cyber crimes against all forms of property: computer vandalism, transmission of virus,
denial of service at lack, unauthorized access over computer system, intellectual property
rights violations, internet time-theft, sale of illegal articles etc.;
(iii) Cyber crimes against State or society: possession of unauthorized information, cyber
terrorism, distribution of pirated software, polluting youth through indecent exposure,
trafficking financial scams, forgery, online gambling etc.

Broad categories:
Cyber crime may be divided into two broad categories:-
(i) Crimes which target computers directly: computer itself is a target of the crime, for
examples – viruses, malware, denial-of-service attacks, blackmailing, theft of
data/information, theft of intellectual property, theft of marketing information etc.;
(ii) Crimes facilitated by computer networks or devices:computer is used as an instrument
to commit the crime, for examples – cyber stalking, fraud, scams, and information warfare
etc.

Traditional categories:
Based on tradition, Mr Sieber Ulrich classified cyber crime into two distinct types:
(i) Cyber crime of economic type: here, the perpetration of some impairment of resources
is relevant, for examples –frauds committed by manipulation of computer systems, illegal
copy of software and computer spying, computer sabotage or illegal use of computer systems
belonging to others etc.;
(ii) Cyber crime against property: it affects the privacy of persons, for example – judicial
right to privacy.

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Various names of Cyber offences

Stalking:
Stalking is unwanted or obsessive attention by an individual or group toward another person.
Virtually any unwanted contact between two people that directly or indirectly communicate
a threat or place the victim in fear can be considered as stalking. In stalking, constant emails
are sent to recipients, thus causing them annoyance, worry and mental torture. It occurs with
women, who are stalked by men, adolescents or adults.

Hacking:
Hacking is the practice of modifying the features of a system, in order to accomplish a goal
outside of the creator's original purpose. The person who is consistently engaging in hacking
activities, and has accepted hacking as a lifestyle and philosophy of their choice is called a
hacker. Hacking is unauthorized access on personal data or information. Password cracking,
e-mail bombing, trojan attacks, virus attacks, web- spoofing are different forms of hacking.
Financial crimes: Financial crimes are crimes against property, involving the unlawful
conversion of the ownership of property belonging to one's own personal use and benefit.
Financial crimes may involve cheque fraud, credit card fraud, mortgage fraud, medical fraud,
corporate fraud, securities fraud etc. Credit card frauds, cheating, money laundering are
examples of cyber crimes.

Spam:
Irrelevant or inappropriate messages sent on the Internet to a large number of recipients can
be considered as spam. Spam or unsolicited sending of bulk email for commercial purposes
is also cyber crimes.
The most common e-mail spam is ‘phishing’ or ‘personal information fraud’. The purpose is
to trick the person for divulging his personal information so that the offender can steal his
identity to commit crime in that person’s name.

Fraud:
Fraud is a type of criminal activity, defined as the abuse of position or false representation or
prejudicing someone's rights for personal gain. But simply, fraud is an act of deception
intended for personal gain or to cause a loss to another party.Computer fraud is any dishonest
misrepresentation of fact intended to let another to do or refrain from doing something, which
causes loss. Examples - bank fraud, identity theft, extortion, theft of classified information.

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Cyber pornography:
Cyber pornography is the act of using cyberspace to create, display, distribute, import, or
publish pornography or obscene materials, especially materials depicting children engaged in
sexual acts with adults. The content of websites and other electronic communications may be
distasteful, obscene or offensive for a variety of reasons. In some instances these
communications may be illegal. Publication of pornographic materials on the websites,
magazines, photos, writings etc. The extent to which these communications are unlawful
varies greatly between countries, and even within nations.

Harassment:
Harassment is when someone behaves in a way which makes you feel distressed, humiliated
or threatened. Any comment published on the internet, for example on gender, race, religion,
nationality, sexual orientation, which my be found derogatory or offensive is considered
harassment. This often occurs in chat rooms, through newsgroups, and by sending hate e-
mail to interested parties.
[United States v Neil Scott Kramer (1983)] The difference between harassment and cyber
bullying is - the former usually relates to a person's "use of a computer or computer network
to communicate obscene, vulgar, profane, lewd, lascivious, or indecent language, or make any
suggestion or proposal of an obscene nature, or threaten any illegal or immoral act", while the
latter need not involve anything of a sexual nature.

Cyber terrorism:
Cyber terrorism is any "premeditated, politically motivated attack against information,
computer systems, computer programs, and data.
Generally, it is an act of terrorism committed through the use of cyberspace or computer
resources, for example - a simple propaganda in the internet that there will be bomb attacks
during the holidays can be considered cyber terrorism. A cyber terrorist is someone who
intimidates or coerces a government or organization to advance his or her political or social
objectives by launching computer-based attack against computers, network, and the
information stored on them. Cyber extortion is a form of cyber terrorism in which a website,
e-mail server, or computer system is subjected to repeated denial of service or other attacks
by malicious hackers, who demand money in return for promising to stop the attacks.

Intellectual property crime:

Computer pirates steal away valuable intellectual properties when they copy software, music,
graphics, pictures, books, movies, documents etc., which are available on the internet.
Usually, most material that the pirates or offenders want to copy is protected by the copyright,
which implies that a person cannot take out copies thereof without permission from the actual
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owner. The crime includes - copyright infringement, trademark and service mark violations,
software piracy, theft of computer source code etc.
[Kelly v Arriba Soft Corp 280 F3d 934 (9th Cir 2002)] or [Yahoo! Inc. v Akash Arora (1999)
PTC Drug trafficking: Drug trafficking is a global illicit trade involving the cultivation ,
manufacture, distribution and sale of substances, which are subject to drug prohibition laws.
It is the selling of illegal substances through encrypted e-mail and other internet technology.
Some drug traffickers arrange deals at internet cafes, use courier Web sites to track illegal
packages of pills, and swap recipes for amphetamines in restricted-access chat rooms.

Online gambling:
The terms online gambling encompass gambling using any digital means, be that PC, TV,
games console or a mobile device.Gambling online is related to money laundering.

Threat:
A statement of an intention to inflict pain, injury, damage, or other hostile action on someone
in retribution for something done or not done. A "true threat" is "statements where the
speaker means to
communicate a serious expression of intent to commit an act of unlawful violence to a
particular individual or group". Although law in most democratic countries protects freedom
of speech, it does not include all types of speech. In fact spoken or written "true threat"
speech/text is criminalized because of "intent to harm or intimidate", that also applies for
online or any type of network related threats in written text or speech.

Computer vandalism:
Computer vandalism is ‘any kind of physical damage done to the computer of any person, for
examples – stealing the computer, adding or removing any parts of the computer.

Data diddling:
It occurs when changing or erasing of any data in subtle ways, which makes it difficult to put
the data back or be certain of its accuracy. This crime is committed for the purpose of illegal
monetary gains or for committing a fraud or financial scam etc.
Webcam:
A webcam is a hardware camera connected to a computer that allows anyone connected to the
Internet to view either still pictures or motion video of a user or other object.

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Cyber Crimes in Bangladesh

Computer literacy in Bangladesh is steadily on the rise. It is anticipated that the revolutionary
move by the present government to digitalize Bangladesh will significantly accelerate
improvements in this sector. But amidst this hope for a new future, a growing threat lurks in
the dark the world of cybercrime. In Bangladesh cyber crime has drawn public attention for
the last couple of years. At present, the Skype conversation and blogging are the burning
issues of our country. Pornography video and picture upload happen in our country as a
regular basis. In Bangladesh quite a number of cybercrime have come under public attention
in the last few years. Anonymous death threats
to Sheikh Hasina through emails, hacking of websites run by law enforcing agencies and
defamation of private information of respected and popular individuals of the country are
some of the examples of cybercrime in Bangladesh.

The Information and Communication Technology Act

(ICTA) 2006 enables:-
(a) Legal recognition of electronic transactions;
(b) Legal recognition of digital signatures;
(c) Electronic contracts;
(d) E-commerce and electronic forms;
(e) Electronic publication of the official gazette;
(f) Prevention of computer crime, forged electronic records, intentional alteration of
electronic records;
(g) Other responses to crime relating to information and communications technology.

Section 57 (Punishment for publishing fake, obscene or defaming information in electronic

form) of the ICTA 2006 states that -
“(1) If any person deliberately publishes or transmits or causes to
be published or transmitted in the website or in electronic form any material which is fake
and obscene or its effect is such as to tend to deprave and corrupt persons who are likely,
having regard to all relevant circumstances, to read, see or hear the matter contained or
embodied in it, or causes to deteriorate or creates possibility to deteriorate law and order,
prejudice the image of the State or person or causes to hurt or may hurt religious belief or

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instigate against any person or organization, then this activity of his will be regarded as an
offence.
(2) Whoever commits offence under sub-section (1) of this section
he shall be punishable with imprisonment for a term which may extend to ten years and with
fine which may extend to Taka one crore”.

Section 57 of the ICTA 2006 stipulates “a maximum punishment of up to 10 years of

imprisonment or a maximum fine of Tk 10 million, or both” for cybercrime. However, the
Information and Communication Technology (Amendment) Bill 2013 has increased the term
of imprisonment from 10 to 14 years.According to the ICTA 2006, all offences under sections
54, 56, 57 and 61 were non-cognizable but the 2013 Bill made offences under sections 54, 56,
57 and 61 of the ICTA 2006 cognizable and nonbailable, empowering law enforcers to arrest
anyone accused of violating the law without a warrant, by invoking section 54 of the Code of
Criminal Procedure 1898.Rights groups and civic forums had opposed the 2013 Bill saying
that it would hinder the freedom of expression and feared the misuse of Section 57 as the
offences mentioned in the section
were not clearly defined. For examples - Bloggers Asif Mohiuddin, Mashiur Rahman Biplob,
Subrata Adhikari Shuvo and Rasel
Parvez, the acting Amar Desh editor Mahmudur Rahman and rights
organisation Odhikar secretary Adilur Rahman Khan have been arrested in
cases filed under the 2006 Act.

Cyber Tribunal
According to section 68 of the ICTA 2006, the Government will appoint a Sessions Judge or
Additional Sessions Judge in consultation with the Supreme Court. The Tribunal takes cases
for trial:-
(a) Upon the report of a police officer not below the rank of sub-inspector;
(b) Upon a complaint made by a controller appointed under the Act or by any other person
authorized by the controller.

According to section 72 of the ICTA 2006, judgment must be pronounced within ten days
after the conclusion of trial, which may be deferred for another ten days.

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According to section 73 of the ICTA 2006, the trial must be completed within six months from
the date of framing changes, which may be extended for another three months.

Cyber Appellate Tribunal

According to section 82 of the ICTA 2006, Cyber Appellate Tribunal consists of a chairman
and two members who are appointed by the Government for 3 to 5 years. The chairman must
be a former or existing supreme count judge out of two members, one of them must be a
former District judge/employed in the judicial service and other member must bean
experienced and skilled person in IT.

Under section 83 of the ICTA 2006, the appellate tribunal will have no original jurisdiction,
and will hear and dispose only of appeals from the order and judgment of the cyber tribunal
and sessions count.
According to section 83 of the ICTA 2006, the appellate tribunal’s secision is final, and has
the power to alter, amend, and annul the order judgment of the cyber tribunal.

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Chapter 5
Juvenile Delinquency

“We are guilty of many errors and many faults, but our worst crime is abandoning the
children, neglecting the foundation of life. Many of the things we need can wait, the child
cannot, right now is the time his bones are being formed, his blood is being made and his
senses are being developed. To him, we cannot answer ‘tomorrow’. His name is ‘Today’.”
Nobel Laureate Gabrial Mistral

Definitions of Juvenile Delinquency

a) General definition:
The word ‘delinquency, has derived from the Latin word ‘delinquer’, which means ‘to omit’.
In 1484, Mr William Coxson used the term ‘delinquent’ to describe a person found guilty of
customary offence.
Generally, a juvenile delinquent is a person who is typically under the age of 18 & commits an
act that otherwise would have been charged as a crime if he were an adult. Juvenile
delinquency (also known as juvenile offending/youth crime) is the habitual committing of
criminal acts or offences by a young person, especially, one below the age at which ordinary
criminal prosecution is possible.

b) Criminologists definition:
Mr William H. Sheldon opined –
“Delinquency refers to repeated acts of a kind, which, when committed by a person beyond
the statutory juvenile courts are punishable as crime”.
Mr Paul B. Tappan said that – ‘Juvenile delinquency is an act, a course of conduct or a
situation, which might be brought before a court and adjudicated’.
Sir Cyril Burt said that –
‘A child is to be regarded as technically a delinquent when his anti-social tendencies appear
so grave that he becomes or ought to become the subject of the official action’.
Dr. Sethnaobserved that – ‘Juvenile delinquency involves wrong doing by a child or a young
person who is under age specified by law (for the time being in force) of the place concerned’.

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Mr Adolphe Quetelet commented that–

‘The propensity to crime is at its maximum at the age when strength and passions have
reached their height, yet when reason has not acquired sufficient control to master their
combined influence’. Therefore, children & juvenile who are neglected in the family or society,
becomes easily involve with criminality.
Mr Radzinowicz asserted that –
‘The adolescents claim the highest share in violence due to dashing nature, lack of foresight,
uncritical enthusiasm, physical strength, endurance and desire for adventure
Ms R. S. Cavan observed that –
‘Irrespective of legal definition, a child might be regarded as delinquent when
his anti-social conduct inflicts suffering upon

Characteristics or features of a delinquent juvenile

A delinquent juvenile is a person who:
(1) Is found begging;
(2) Is found without having any home or settled place of abode and without any ostensible
means of subsistence and is destitute;
(3) Has a parent or guardian who is unfit or incapacitated to exercise control over the juvenile;
(4) Lives in a brothel or with a prostitute or frequently goes to any place used for the purpose
of prostitution;
(5) Is found to associate with any prostitute or any other person who leads an immoral,
drunken or depraved life;
(6) Is being or is likely to be abused or exploited for immoral or
illegal purposes or unconscionable gain. Any of the following acts and behaviours are treated
as juvenile delinquency
(1) A felony, high misdemeanor, misdemeanor or other offence;
(2) The violation of any Penal Law or other laws;
(3) Any act or offence for which he could be prosecuted in the method partaking of the nature
of a criminal action or proceeding;
(4) Being a disorderly person;
(5) Habitual vagrancy;

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(6) Incorrigibility;
(7) Immorality;
(8) Knowingly visiting gambling places or patronizing other places or establishments, hi or
her admission to which constitutes a violation of law;
(9) Idly roaming the streets at night;
(10) Habitual truancy from school.

Juvenile Delinquency in Bangladesh*

Juvenile delinquency has emerged as a matter of concern in Bangladesh in recent times with
the number of children mostly poor involved in criminal activities. Numerous social factors
coupled with poor parenting, family troubles and above all poverty are pushing these children
to undesirable activities.
According to section 59(1) of the Child Act 2013, the government is mandated to establish and
maintain necessary number of Child
Development Centres based on gender disaggregation for the accommodation, reformation
and development of children who are ordered to be detained and those who are undergoing
trial. According to section 60 of the Child Act 2013, the government may, by notification in
official Gazette, permit any person, institution or organization to establish and maintain in
the method provided by Rules any certified institute subject to fulfilling prescribed
conditions.

Juvenile Development Institutes: In Bangladesh, there are four juvenile development

institutes:119
(1) Correctional Institute for 150 boys at Jessore;
(2) National Correctional Institute for 200 boys at Tongi, Gazipur
(3) National Correctional Institute for 150 girls at Konabari, Gazipur;
(4) Juvenile Development Centre for 300 boys at Joypurhat.

Objectives of Juvenile Development Institutes:

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The juvenile centres has the following objectives: (1) To create a congenial atmosphere in the
family and also in the society by giving due attention to all dimensions of protection, survival
and development of the children;
(2) To eliminate the adverse effects, which make children delinquent through recognised
methods of correction;
(3) To receive the juveniles in the centre for correction, not for the punishment;
(4) To carry out the judgment imposed by the courts with utmost humanity;
(5) To retain the rights and privileges like other members of the society;
(6) To assist the rehabilitation and integration of the Juvenile offenders into the community
as law abiding and productive citizen of the country;
(7) To give importance to the family and society in the correctional process.

Training Programs of Juvenile Development Institutes:

The Institutes have the following training programs:
(1) Tailoring;
(2) Electrical wiring;
(3) Automobile;
(4) Poultry;
(5) Welding;
(6) Wood works;
(7) Electronics;
(8) Industrial sewing;
(9) Embroidery.

Development Programs of Juvenile Development Institutes:

The Institutes have the following development programs:
(1) General & religious education;
(2) Counseling for behavioral correction;
(3) Regular recreational activities, such as games, sports etc.;
(4) Re-habilitation activities.

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The role of UNICEF

UNICEF's overall objective is to establish a child oriented juvenile justice system, which
ensures the well-being of children in conflict with the law and an appropriate reaction
according to their age.UNICEF Bangladesh has contributed in several ways to address the
issue of children in conflict with the law, such as –
(a) Based on an assessment carried out in partnership with relevant institutions, it has
developed training materials on juvenile justice for police, magistrates and judges;
(b) It was instrumental in supporting the drafting of the 'National Social Policy on Models
of Care and Protection for Children in Conflict with the Law', which was a first in separating
children in need of protection from children in-conflict with the law and also provided
guidelines on how to appropriately deal with these children;
(c) The international minimum standards on juvenile justice was translated into Bengali
in order to ensure that front line workers such as- police, magistrates, judges, probation
officers and social workers would have better access to these international standards;
(d) It also played an instrumental role in establishing the National Taskforce on children
in conflict with the law;
(e) In 2006, UNICEF and CIDA established a Juvenile Justice Roundtable (JJR) with a
broad membership including UN agencies, development partners, donors and NGOs;
(f) It has initiated advocacy with the policy-makers and training institutes for judges,
magistrates and police in order to incorporate a juvenile justice component in their respective
training curriculum;
(g) It is also advocating with relevant ministries in order to incorporate the international
minimum standards on juvenile justice into domestic legislation.

The Child Act 2013

The new Child Act 2013 abolishes the early Child Act 1974. The new Act is harmonized with
the United Nations Convention on the Rights of the Child (CRC). Some provisions have been
incorporated in the new Act in
response to directions of the Supreme Court as well as the requirements of other international
instruments, such as the
Beijing Rulehis is a special law, with overriding effect, therefore

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, section 3 of the Act provides that notwithstanding anything contained in any other existing
law the provisions of this Act shall prevail.
The salient features of the Act are:
(a) Probation Officer:
According to section 5, the government will appoint one or more
probation officer/s in the district, upazila and metropolitan areas; Section 6 states the duties
and responsibilities of a probation officer, which includes –
(2) To ascertain the reason for which the child is brought to the police station;
(3) To meet the child and assure him that he will be provided with all kinds of assistance;
(4) To communicate and co-ordinate with the police about the concerned case or complaint;
(5) To trace the parents of the child concerned and to assist the police in communicating with
them;
(6) To assess the possibility of bail for the child with the Child Affairs Police Officer or where
applicable;
(7) To undertake diversion process upon evaluating the background of the concerned case;
(8) Where diversion is not possible or the child is not released on bail to arrange placement
of the child in a safe home before he is produced in court etc.;
(9) To deal with children in contact or in conflict with the law who are brought before the
Children’s Court;
(10) To remain present in the court during the trial, and to give company to the child as far
as possible, whenever necessary;
(11) To hold a field inquiry and to prepare an inquiry report taking into consideration the
conditions of the child and his surroundings and to submit such report to the court; (12)
To ensure legal representation for the child including provision of legal aid through the
District Legal Aid
Committee;
(13) To communicate, when necessary, with non-government legal aid organizations in order
to ensure legal representation for the child.

(b) Child Welfare Boards:

As per section 7, the Child Welfare Boards will be formed at national, district
and upazila levels and responsibilities includes

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–
(1) To provide guidelines regarding rehabilitation and reintegration into family and social life
of disadvantaged children and those children in contact or in conflict with the law;
(2) To advise those concerned regarding the development and implementation of plans with
a view to realizing welfare and development of children;
(3) To ascertain the gender-disaggregated number of such children;
(4) To advise the government upon collecting data and information about their ways or
standards of living;
(5) To determine in an appropriate case the mode of necessary diversion or alternative care
and to assess the data and information of children under such process or care;
(6) To frame guidelines and if necessary, to make recommendations and provide instructions
for the District and Upazila Boards;
(7) To call for reports from them on their activities from time to time and, for the purpose of
coordinating their activities, if necessary, to arrange for inter-Board coordination
meetings. The minster of the Ministry of Social Welfare will be the chairperson of the
board

(c) Children’s Court:

Section 16 of the Act provides that at least one “Children’s Court” is to be established in every
district headquarter and in every metropolitan area. If a case is filed against a child, whatever
crimes s/he committed, the children court will try him/her as may be specified by Rules.
[section 17]
The Children’s Court has the powers of a Court of Sessions under the Code of Criminal
Procedure; powers of a Civil Court in respect of service of summons, summoning witness and
ensuring their attendance, production of documents or materials and receiving evidence on
oath. [section 18]
The court shall arrange for appropriate seating for the child and in case of a challenged child,
where necessary, provide special seating. While the trial of a child is continuing, the lawyer,
police or any other official present in court shall not wear any professional or official uniform.
[section 19(4)]
Notwithstanding anything contained in the Code of Criminal Procedure or any other law for
the time being in force, the Children’s Court shall complete the trial within 360 days from the
day of the child’s first appearance before the court. [section 32]

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(d) Arrest:
According to the act, whatever the circumstance is, child aged below nine cannot be arrested.
[section 44(1)]

If a child above nine is being arrested, law enforcers cannot apply handcuffs and rope around
waist to the child. [section 44]

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Chapter 6
The Punishment

a) General definition:
Punishment derives from the Greek word ‘Pu’, which means ‘to cleanse’. According to Oxford
Dictionary, the word ‘punishment’ derived from old French ‘punissement’ (from the verb
‘punir’).Punishment is the infliction or imposition of penalty or pain as retribution for
committing an offence/crime. Punishment is generally applied to encourage and enforce
proper behavior as defined by society or family.
b) Definition given by scholar:
According to Mr Jeremy Bentham, “Punishment, the infliction of some kind of pain or loss
upon. A person for a misdeed, i.e. the transgression of a law or command.
Punishment may take forms varying from capital punishment, flogging and mutilation of the
imprisonment, fines and even deferred sentences, which come into operation only if an
offence is repeated within a specified time”.
According to Mr Kevin Murtagh,
“Punishment involves the deliberate infliction of suffering on a supposed or actual offender
for an offence such as a moral or legal transgression”.

Conditions of punishment
To inflict punishment, following conditions must be fulfilled:
(a) It be imposed by a lawful authority;
(b) It involves some kind of loss to the criminal;
(c) It be in response to an offence;
(d) The offender should be responsible for the offence

Different theories of punishment

Punishment has been a subject of debate among philosophers, political leaders, and lawyers
for centuries. Various theories of punishment have been developed, each of which attempts
to justify the practice in some form and to state its proper objectives.

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There are many possible theories that might be given to justify or explain why someone ought
to be punished. These are:

i) Deterrent theory:
The aim is to prevent everyone in the society from committing offences by discouraging them.
The general deterrence principle in economic terms is ‘pay the price of a crime’.
According to Mr Banthem, deterrent punishment may help to control crimes in three ways:
(i) By making it impossible or difficult for a criminal to commit the offence again, at least in
certain ways;
(ii) By deterring both offenders and others;
(iii) By providing an opportunity for the reforming of offenders.
Sir John Salmony commented: “Punishment is before all things deterrent, and the chief end
of the law of crime is to make the evil doer an example and a warning to all who are like
minded with him”
According to Utilitarian theories,
‘Punishment is justified by its deterrence of criminal behaviour and by its other beneficial
consequences for individuals as well as for society’.

Among several utilitarian theories recognized by criminologists, they are two types:

(a) General deterrence:

The approach based on general deterrence aims to dissuade others from following the
offender’s example. It assumes that, because most individuals are rational, potential
offenders will calculate the risk of being similarly caught, prosecuted, and sentenced for the
commission of a crime. This theory has proven difficult to validate, however, largely because
the presence of many intervening factors makes it difficult to prove unequivocally that a
certain penalty has prevented someone from committing a given crime. Nevertheless, there
have been occasional examples showing that
some sentences can have a strong deterrent effect, for example - laws designed to prevent
driving under the influence of alcohol (e.g., by setting a maximum legal level of blood alcohol

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content) can have a temporary deterrent effect on a wide population, especially when coupled
with mandatory penalties and a high probability of conviction. Proponents of capital
punishment have claimed that it serves as an effective deterrent against. Some argue that use
of the death penalty is a response to, but not a cause of, high murder rates, while some
maintain that it has a brutalizing effect on society that increases the incidence of murder by
instilling a lower regard for human life. Another form of deterrence, known by the term
denunciation, utilizes public condemnation as a form of community moral education. In this
approach, a person found guilty of a crime is denounced - that is, subjected to shame and
public criticism. Although denunciation is closely associated with general deterrence through
fear - and many courts have imposed sentences designed to achieve both objectives
simultaneously - there is an important distinction between them. Education through
denunciation is generally aimed at discouraging law-abiding citizens from committing
criminal acts. Its object is to reinforce their rejection of law-breaking behaviour. Most people
do not steal because they believe that stealing is dishonest; a sentence imposed on a thief
reinforces that view. General deterrence through fear is aimed at those who avoid law-
breaking behaviour not on moral grounds but on the basis of a calculation of the potential
rewards and penalties involved.

(b) Individual deterrence:

Individual deterrence is directed at the person being punished and aims to teach him not to
repeat the behaviour. It is also the rationale of much informal punishment, such as parental
punishment of children. Theoretically, the effectiveness of individual deterrence can be
measured by examining the subsequent conduct of the offender. Such studies often have been
misleading, however, because in most cases the only basis for proving that the offender
repeated his crime is a further conviction. Because a high proportion of crimes do not result
in convictions, many offenders who are not reconvicted after being punished may have
committed additional crimes. Furthermore, the general pattern of “aging out” of crime (i.e.
the fact that criminal behaviour peaks in the late teens and early 20sand declines rapidly
thereafter) contributes to the difficulty of measuring the effectiveness of particular deterrence
strategies. Theories of deterrence and retribution share the idea that punishments should be
proportionate to the gravity of the crime, a principle of practical importance.
If all punishments were the same, there would be no incentive to commit the lesser rather
than the greater offense. The offender might as well use violence against the victim of a theft
if the penalty for armed robbery were no more severe than that for larceny. In the modern
civilized society, severity of punishment is being mitigated and losing its strength as a just
way of punishment, for example – capital punishment has disappeared in some countries.

ii) Preventive theory:

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The profounder of this theory hold that the object of punishment is to prevent the offences.
The offences can be prevented when the offender and his notorious activities are checked. The
check is possible by the disablement. The forms of disablement are also available in Islamic
law, where there is the provision of the amputation of some part of body. The death penalty
is also based on this theory. The offender is eliminated from the society so that the offences
of the same nature may be prevented.

iii) Retributive theory:

Criminals ought to suffer in some way. The aim is to try to rebalance any unjust advantage
gained by ensuring that offendThe retributive theory of punishment holds that punishment
is justified by the moral requirement that the guilty make amends for the harm they have
caused to society. Retributive theories generally maintain, as did the Italian criminologist
Cesare Beccaria, that the severity of a punishment should be proportionate to the gravity of
the offense. Some retributive theories hold that punishment should never be imposed to
achieve a social objective, while others allow social objectives to be pursued as secondary
goals. Many (but not all) retributive theories also claim that punishment should not be
inflicted on a person unless he is found guilty of a specific offense. Although retributive
theorists do not base their justification of punishment on its possible deterrent or reformative
effects, many of them agree that punishment can perform a salutary educational function.
The enactment and implementation of the criminal, including particularly the imposition of
sentences - provides a concrete example of society’s values and thereby reinforces them.
Citizens whose moral values are reinforced by court judgments. may feel more strongly
committed to them than previously; by contrast, they may question or feel less constrained
by values that the courts visibly ignore. Without this kind of reinforcement, some
retributivists argue, the legitimacy of the legal system itself may be undermined, leading
eventually to general moral decline and the dissolution of society. Retributivists also contend
that punishment of offenders by the state satisfies the community’s natural demand for justice
and helps to prevent victims of crime and those close to them from seeking revenge through
direct violence. A variation of this idea is that punishment is a kind of expiation i.e. offenders
should undergo punishment in their own interests to discharge their guilt and to make
themselves acceptable to society again.

iv) Reformative theory:

Established in legal practice during the 19th century, the most recently formulated theory of
punishment is rehabilitation. The aim is to change the offender’s attitude to that they have
done and make them to realize that their behavior was wrong. The purpose of punishment is
to apply treatment and training to the offender so that he is made capable of returning to
society and functioning as a law-abiding member of the community. Rehabilitation was
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viewed as a humane alternative to retribution and deterrence, though it did not necessarily
result in an offender receiving a more lenient penalty than he would have received under a
retributive or deterrent philosophy.
In many cases rehabilitation meant that an offender would be released on probation under
some condition; in other cases it meant that he would serve a relatively longer period in
custody to undergo treatment or training. Although rehabilitation was widely criticized in the
United States in the 1970s, it gained greater acceptance once research in the 1980s and 90s
demonstrated that a carefully implemented rehabilitation program could reduce recidivism.
Critics nonetheless objected to rehabilitation and sentencing
programs that gave significant discretion to the prison administrator, who could decide to
release or further detain an offender depending on his assessment of the offender’s progress.
The aim is to keep criminals away from society so that the public is protected from their
misconduct.
e) Expiatory
refers to the act of making an individual “incapable” of committing a crime - historically by
execution or banishment, and in more modern times by execution or lengthy periods of
incarceration. Most instances of incapacitation involve offenders who have committed
repeated crimes (multiple recidivists) under what are known as habitual offender statutes,
which permit longerthan-normal sentences for a given offense. Expiatory is also utilized, for
example, in cases involving offenders who are deemed dangerous (such as those guilty of
murder) and likely to commit grave and violent crimes unless restrained. Given the difficulty
of identifying such offenders with certainty, the principle of incapacitation is controversial.
It has also been difficult to reconcile with other principles, especially those advocating equal
retribution. A particularly controversial example of incapacitation is the socalled “chemical
castration” of sex offenders with hormonal drugs that supposedly reduce or eliminate the sex
crimes.

Punishments under Bangladesh Penal Code 1860

Section 53: The punishments to which offenders are liable under the provisions of this Code
are - Firstly - Death;
Secondly - Imprisonment for life;
Thirdly - [Omitted].
Fourthly - Imprisonment, which is of two descriptions, namely:- (1) Rigorous,
that is, with hard labour; Fifthly - Forfeiture of property;
Sixthly - Fine.

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Forms of Punishment

1) Flogging:
The word derived from Latin flagellare ‘to whip’, or from flagellum ‘whip’. It means beating
an offender with a whip or stick as punishment.It was the most common method of punishing
criminals. The instruments and methods of flogging had differed from country to
country.Penological researches have shown that flogging can serve useful purpose for minor
offences, such as – eve-teasing, drunkenness, vagrancy, shop-lifting etc, but does not have
much effect on offenders charged with major crimes.It was also found that most of the
hardened criminals, who were subjected to whipping, repeated their crime.In modern times,
flogging is regarded as being barbarous and cruel.
2) Mutilation:
The word ‘mutilation’ derived from Latin mutatio(n-) or from mutare, which means ‘to
change.’ It means chopping off any physical part, for example, according to Sharia law, hand
will be chopped off for committing theft. Flogging was believed to have an inevitable tendency
to infuse cruelty among people. It served as an effective measure of deterrence and
retribution; however, it is completely discarded now due to barbaric nature.
3) Branding:
The word ‘branding’ derived from old English, of Germanic origin; related to German
Brand.An identifying mark burned on criminals with a branding iron that causes them public
shame or disgrace, for example – letter ‘T’ was branded on the hand of the burglars, ‘R’ was
on the forehead for repeated offenders, ‘B’ was on the forehead for blasphemy.
Branding was used in Italy, India, England, USA but it is now abolished due to
humanitarianism.

4) Stoning:
The word ‘stoning’ originated from old English stan (noun), of Germanic origin; related to
Dutch steen and German Stein.Throwing stones on the offender is another form of
punishment, which was followed in the Islamic countries, like – Saudi Arabia, Pakistan, Iran
etc. Due to the barbaric nature, it has been abolished in many Islamic countries.

5) Pillory:

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The word ‘pillory’ originated from old French pilori, probably from Provençal espilori
(associated by some with a Catalan word meaning ‘peephole,’ of uncertain origin). The
criminal is made to stand in a wooden or iron framework with holes for the head & hands, in
which he is imprisoned & exposed to public abuse. It was believed that the deterrence involved
in the mode of punishment had the most agonizing effect on the offender. It had
existed in most part of the world, including India during the Mughol period but in slightly in
different form. Due to the cruel nature, it has been abolished in the Penal systems. However,
hanging of a condemned convict to death in closed jail still remains in some countries.

6) Fines:

The word originated from old French fin ‘end, payment,’ or from Latin finis ‘end’ (in medieval
Latin denoting a sum paid on settling a lawsuit). The original sense was ‘conclusion’
(surviving in the phrase in fine); also used in the Medieval Latin sense, the
word came to denote a penalty of any kind, later specifically a monetary penalty. A sum of
money exacted as a penalty by a court of law or other authority. This is a common mode of
punishment for offences, such as – property crimes, minor offences, embezzlement, fraud,
theft, gambling, loitering disorderly conduct etc. It is still used in almost all the sentencing
systems of the world for offences, which were not of a serious nature.

The Penal Code of Bangladesh 1860 provides for imposition of fine

(a) As the only disposition method;
(b) As an alternative to imprisonment i.e. imprisonment up to 2 or 3 years;
(c) As a punishment in addition to imprisonment;
(d) The actual amount of fine to be imposed is left to the discretion of the sentencing court
The Supreme Court of India commented that

Arguments for & against capital punishment:

For:

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(i) It’s a fair retribution & saves potential future victims;

(ii) Worst crimes must be punished by it;
(iii) It serves as an effective deterrent;
(iv) It’s a just punishment to ensure justice for condemned criminals;
(v) Victims family gets peace of mind;
(vi) Mr Garofalo supported it as the most efficient means of eliminating criminals;
(vii)Sir James Fitz Stephen commented that ‘no other punishment deters man as effectually
from committing crimes as the punishment of death’.
[Jagmohan Singh v State of U.P. AIR 1973 SC 947] or [Ediga Anamma v State of A.P. AIR 1974
SC 799]

Against:
(i) If there’s a miscarriage of justice, innocent people will be punished;
(ii) It’s a lethal vengeance which brutalizes the society;
(iii) It’s unjust & often discriminatory against poor;
(iv) It’s cannot be justified in terms of retributive purpose It’s indecent and uncivilized.

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Chapter 7
Parole’ And probation
The ‘parole’ originated from French “word”, also ‘formal promise’,from ecclesiastical
Latin parabola ‘speech’. Its use in connection with the release of prisoners was derived from
the idea that they were released on their word of honor that they would commit no further
crimes.

Definitions of parole
a) General definition:
Parole s “releasing a prisoner from the prison into the community under certain conditions
for a specific period, after he has served a portion of the prison sentence”. A prisoner who is
released under parole is called parolee.

b) Scholar’s definition:
Ms J. L. Gillin defined parole as: ‘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.
Mr Donald Taft characterizes parole as: ‘A release method, which retains some control over
prisoners, yet permits them more normal social relationships in the community and provides
constructive aid at the time they most need it. Dr Sutherland considers parole as: ‘The
liberation of an inmate from prison or a correctional institution on condition that his original
penalty shall revive if those conditions of liberation are violated

Sir Robert Cross observed parole as:

‘The release of a long term prisoner from a penal or correctional institution after he has served
a part of his sentence under the continuous custody of the State and under conditions that
permit his incarceration in the event of misbehaviour.

c) Definition based on case law:

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Parole means – the release of a prisoner temporarily (for a specific purpose) or permanently
before completion of a sentence on the promise of good behavior. [Smt. Poonam Lata v
Wadhawan & others]

Origin and development of parole system

The practice of allowing prisoners to be released from prison before serving their full
sentences dates to at least the 18thcentury. England developed a system of “ticket of leave”,
in which convicts detained under a sentence of transportation were allowed a measure of
freedom or the right to return to England in return for good behaviour.
England abolished the sentence of transportation in the mid-19th century and replaced it with
penal servitude, which incorporated a similar procedure under a different name, “release on
license” i.e. through good behaviour in custody, a convict sentenced topenal servitude could
earn release from a penitentiary During the 20th century parole in England underwent a
number of changes, culminating in the Criminal Justice Act of 1991.Under this law (and
subsequent revisions), all prisoners sentenced to less than four years were automatically
released after serving half of their sentences and those sentenced to more than 15 years could
be granted parole by the home secretary upon the recommendation of the parole board.

In the United States, the principle of “indeterminate” sentencing became widely accepted in
the 19th century and eventually formed the basis of the sentencing laws of many jurisdictions.

In Canada, prisoners are eligible for parole after serving one-third of their sentences or
after serving seven years of a life sentence; more than four-fifths of Canadian prisoners
eventually secure release on some type of parole.

In Japan, prisoners are eligible for parole after serving one-third of their sentences or
after serving 10 years of a life sentence; about two-fifths of prisoners in Japan are released on
parole.
In France, first-time offenders usually are paroled after serving one-half of their sentences;
recidivists are eligible for parole after a longer period of imprisonment.

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Essential elements of parole

The followings are the essential elements of parole:
(a) Release from prison after completing a specified portion of prison sentence;
(b) Imposition of certain conditions for behaviour;
(c) Institution or supervision by a probation or a police officer; (d) Returning to prison after
completing the parole term.

General conditions for parole system

Parole cannot be grated to every type of offenders. Selection for parole is based on two
separate considerations:
(i) The offender’s parole eligibility, which is more or less arbitrary because it is usually
fixed by statute;
(ii) The offender’s suitability for parole, which entirely discretionary involving a decision
and a calculated risk by the parole board.

Essential conditions for parole:

Parole is granted to an accused on the following conditions:
(1) The parolee has to inform about his whereabouts and movement as well his places of living
to the parole officer so that he may be called immediately as and when required.
(2) He (offender) cannot marry without the prior permission of the parole officer.
(3) He cannot keep any kind of arm or ammunition with him.
(4) He cannot use any narcotic drugs or alcohol during parole;
(5) He will not do any such thing or participate in any such work which is not justified or hitch
is against the law;
(6) He will not engage himself in gambling or prostitution; (7) He will not do any monetary
transaction with any person.

Violation of the conditions:

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If the parolee violates the any of the conditions imposed on him before his release from jail,
he is liable to be sent back to jail or reformatory. For this purpose the order of the court will
not be required. The warrant of arrest of such offender can be issued and executed without
the intervention of the court. If the parolee commits any new offence during his release on
parole, the court for such particular crime will charge him separately.

Definition of probation
a) General definition:
The word ‘probation’ originated in late Middle English (denoting testing, investigation, or
examination): from Old French‘probacion’, from Latin probatio(n-), from probare ‘to test,
prove’. The legal use dates from the late 19th cent. It means – the release of an offender from
detention, subject to a period of good behavior under supervision of a probation officer. An
offender on probation is ordered to follow certain conditions set forth by the court and if he
violates them, he will go back to prison. An offender who is under probation is called
probationer.

b) Scholar’s definition:
According to Mr Sutherland,
‘Probation is the status of convicted offender during a period of suspension of sentence, in
which the criminal is given liberty, conditioned on good behaviour and in which the State, by
personal supervision attempts to help the offender to maintain good behaviour.
According to Mr H. S. Commings,
‘Probation is a method of discipline and treatment. If probationers are carefully chosen and
the supervisory work is performed with intelligence and understanding, we can work miracles
in rehabilitation.Probation is distinct from parole, which involves conditional release from
confinement after part of a sentence has already been served. In corrections, the word
‘probation’ is used in four ways:
(1) Disposition i.e. suspension of sentence;
(2) Status i.e. position of an offender sentenced to probation;
(3) Subsystem i.e. subsystem of the criminal and juvenile justice
(4) Process i.e. set of functions, activities and services that characterize the system’s
transactions with the courts, the offender and the community

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Origin and development of probation

In English common law, prior to the advent of democratic rule, the courts could temporarily
suspend the execution of a sentence to allow a criminal defendant to appeal to the monarch
for a pardon. Probation first developed in the United States when Mr John Augustus, a Boston
cobbler, persuaded a judge in the Boston police court in 1841 to give him custody of a
convicted offender, a “drunkard," for a brief period and then helped the man to appear
rehabilitated by the time of sentencing.Even earlier, the practice of suspending a sentence
was used as early as 1830 in Boston, Massachusetts, and became widespread in U.S. courts,
although there was no statutory provision for such a practice. At first, judges, most notably
Peter Oxenbridge Thatcher of Boston, used "release on recognizance" or bail and simply
refrained from taking any further action.
In 1878 the mayor of Boston hired a former police officer, the ironically named "Captain
Savage", to become what many recognize as the first official probation officer. By the mid-
19th century, however, many Federal Courts were using a judicial reprieve to suspend
sentence, and this posed a legal question.

In 1916, the United States Supreme Court, in the Killets Decision, held that a Federal Judge
(Killets) was without power to suspend a sentence indefinitely. This decision led to the
passing of the National Probation Act of 1925, thereby, allowing courts to suspend the
imposition of incarceration and place an offender on probation. Probation developed from
the efforts of a philanthropist, John Augustus, who looked for ways to rehabilitate the
behavior of criminals. By 1951, all the states in the United States of America had a working
probation system and ratified the Interstate Compact Agreement.

General conditions for probation

The followings are the general conditions for probation:
(i) To obey the la(ii) To obtain employment;
(iii) To abstain from gambling, intoxications of alcohol/drugs;
(iv) To stay in a specific place;
(v) To refrain from bad habits etc.;
(vi) To improve behavior;
(vii)To follow orders of the probation officer. Property due to heavy case-loads. The number
of trained personnel is also insufficient. The supervision thus remains both inadequate
and questionable.

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Differences between parole & probation Parole Probation

(1) It’s the last stage of correctional scheme/program It’s the first stage
(2) It’s allowed by the Parole Board It’s granted by the judiciary/court
(3) It’s granted only when a prisoner already served a period (one third) of the sentence It’s
the suspension of the sentence for a short period
(4) Parolee undergoes both punishment & treatment Probationer remains under continuous
supervision/treatment of the probation officer
(5) Public acceptance of a parolee is quite difficult A probationer is accepted by the public
quite easily
(6) It’s originated from the military law It’s originality belongs to Mr John Augustus of USA

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