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Penology and Victimology:-
Penology - penalising some actions. Punishments - Make some person liable for wrongful acts. Penology is all about the study of punishment, the punishment theories, Types of punishments. Brittanica definition :- study of the punishment of crime and of prison management. Francis Lieber - had coined the term penology. The aims of penology :- To examine the ethical bases of punishment and the motives and purposes of society in inflicting it. To make a comparative study of penal law and procedure through history To evaluate the social consequences of the policies in force at a given time. Punishment Definitions :- Thomas Brooks in His book (punishment) had said about punishment and it’s four components. A) punishment must be for breaking the law. B) punishment must be for a person breaking the law. C) it must be administered and imposed intentionally by an authority with a legal system. D) And lastly punishment must involve a loss. Any punishment it must satisfy all the four components. If someone is punished for breaking the law and the penalty was not imposed by a legal authority. Then, no punishment takes place. Objects :- The object of punishment is the prevention of crime. To prevent the person who has committed crime from repeating the act or omission and to prevent other members of the society from committing similar crimes. Theories of punishments :- Punishments are generally immediate consequences of doing a crime. It can be in the form of suffering , loss, pain, penalty , image tarnish. Purpose of giving punishment :-
If somebody had already committed crime. They will already got punishment. They will scare to repeat the same Other people because of the fear of getting punishment they will not commit crime. Theories of punishments:- Deterrent theory :- This school believes in saviour punishment for the smallest of smallest offence also. They feel that by giving severe punishment they can prevent people doing crime which the fear of getting severe punishment. This school is supported by Plato, Locke, Fischte etc.. earlier in England pickpoters were given sentence in front of public. Criticism says when a person is hunger he is not bother whether he is going to get death punishment or not. Because he is dying of hungry otherwise. So the responsibility of the state is to feed the people and not to punish the people. In Indian context we don’t give serve punishment for small offences. But offences like murder, rape , dowry death we also give death punishment. Oscar Wilde - says Every saint has a past and every sinner has a future. Valmiki, Angulimala they were criminal in initial days but then they changed and they became saints. So, he says we need to give opportunity to the people. Rather killing them. Retributive theory :- It is known for an eye for an eye. This was used in kingdoms of Saudi Arabia 4 important aspects :- If somebody cause grievance they need not pay penalty. If somebody is doing any blameworthy or culpable act it will be considered as crime For Similar offences there a should be similar punishment. If somebody is Responsible for crime it means they are responsible for punishment also. This school is supported are favoured by Emmanuel Kant, Plato , Hegel etc. however this school Is criticised by salmon saying that retribution is not remedy but aggravates the offence. In Indian context we don’t believe too much in this theory. One of the biggest criticism for this theory form Mahatma Gandhi - “An eye for an eye makes the whole world blind” he said we need to give opportunity for every criminal to correct his mistakes. Preventive theory :- This school believes that there are mischievous in the society. To remove those mischievous and criminals from the society. Then society will be peaceful. How to remove them -? By putting them in jail. By transportation Or by giving death punishment
wooden boards. The main aim was the offender could be exposed to whatever treatment passer-by could imagine. The last recorded use of stock was in the UK in 1872. Whips:- Especially for female. It was prohibited under the Indian punishment system Number of whips depends upon the kinds of act that you do. It is a public punishment. It is made by special artisans. It is very specially made. The metal is harsh. It specially is given against a person who is acting against the nation. Earlier it can be said that there is no human rights and all. Gossip bridle :- An iron frame was place over the head, it had a gag, plate , sharp knife or pointed metal) which was placed in the women’s mouth to prevent her from moving her tongue. It is given for violating the direction of novelty. This practice is specifically towards women. If you are talking (gossip) , dishonouring the family. The women can open it two times a day to eat. It may be for 1 month or 3 moths etc., based on the punishment that you have committed. Main reason was with witch bride - even after certain warning she is doing the same means she was burnt alive. It was specifically in western Europe and the United States. Women’s in india was not treated in this manner. This prevented in speaking and resulted in many unpleasant side effects for the wearer including excessive salivation and fatigue in the mouth. Ducking stool :- It is also primarily for women. The women is put in the pond of water by tying in the stool. Depending on the offence the punishment is given. It may be for one time / two time / how many times they will decide. There are certain time limits like 30s, 40s etc.. for men also it is given If there is excessive arguments the It was given. ( like asking the custody of child) Main purpose was not giving physical injury. But to humiliate a person. In Europe and North America it was mainly given. Branding ( with hot iron) :- In 17 century it was followed. Habitual offender will have it. Sometimes they will also write that for what offence you are suspected. For what offence you ere earlier caught. I matter how much you rub. Once you do it will be there forever. It was sometimes domes on the cheeks.
It was abolished in 1882. It mainly done for the identification of slave , purchase, sold, gifted like commodity It was also used for sexual workers, branded labour. European, American and other colonial slavers branded millions of slaves during the period of the Atlantic slave trade. Ancient Roman’s marked runway slaves with the letter FUG. Branding prostitutes and enslaved prostitutes have often been tattooed or branded with a mark of their owners. Women and girls are forced into prostitutes. Death for witch craft :- During the region of James 1 from 1603 to 1625 it is believe that more than 3000 witches were executed. Witch hunting become popular sports and many protested their innocence but were hanged. Transportation:- Not kept in jail. But you are transported. It may be Kidd transportation( you will never come back again) Even sometime whole family will search for that person. In India mostly transported to Andaman and Nicobar. In America transporting to far away island If we take in Africa people will speak fresh. Their national law is French. Because British built colony all over the world. The conditions was very worse. Many died without food. It is considered as a heinous form of punishment. Transportation as a form of punishment was omitted in IPC. It was mainly used for military prisoners, political prisoners etc. but it was seen as more merciful than capital punishment. It was used as method of colonisation. The criminal law amendment Act 1955 abolished transportation of life as a punishment.
What do you mean by Transportation of life as form of punishment?
Deportation was at first inflicted upon political criminals. It was also a punishment for adultery, murder, poisoning, forgery, embezzlement, and other crimes The practice of transporting criminals to foreign soil began in Europe in the 15th century, when Portugal sent convicts to South America, where they became some of the earliest settlers of Brazil France initiated deportation during the Revolutionary period. In England deportation developed from the policy of allowing an arrested man He would take an oath to depart and never return. Gradually a formal system of transportation of convicted criminals developed as a substitute for capital punishment.
Burning of women in England:- It is for the crime of disloyalty of the crown. If women found guilty as high treasons. The treasons Act 1790 finally abolished the public burning of women. Modern form of punishment:- Capital punishment:- It is also known as death penalty. In 1899 the death penalty is a normal one. But now it is not like that. The judgement given in the bachan singh case plays a crucial role in deciding whether any crime deserve death penalty or not. Bachan Singh Vs state of Punjab 1980:- This case is related to freedom of life, right to life and personal liberty. Article 21 As well as it is directly related to the death punishment. Section 302 of the Indian penal code. Facts :- Bachan Singh was convicted and sentenced to death for the murder of three persons. When he appealed in high court, HC dismissed his appeal and upheld the judgement of session judge. Then bachan Singh filed a special leave petition in sc. he challenged the constitutional validity of the death penalty provided in section 354(3) of the code of criminal procedure, 1973. Question of law :- Whether the imposition of death penalty under section 302 IPC read with section 354(3) of crpc was arbitrary, unreasonable and unconstitutional? Arguments :- The petitioner said that the facts found by the session court and the high court are not ‘special reasons’ for death penalty under the section 354 crpc. The Bachan Singh was not previously convicted for murder. Nor 3 murder constitute a extremely heinous and inhuman. Then the lower courts were not competent to impose extreme penalty of death. Then the section 302 of ipc is against article 19 and 21 and basic structure. Judgement:- It is considered as a landmark one. The Supreme Court had evolved the doctrine ‘ rarest of rare case’ for awarding the death penalty’. The court said that for award ‘death sentence’ “special reasons” must be there and this case is “rarest of rare” and upheld the constitutional validity of death sentence under section 354(3) of crpc. The court is the said case dismissed the challenge to constitutionality of section 302
of the IPC. Thus, the said the death penalty for offence of murder does not violate the basic structure of the constitution. The sc said that the capital punishment can be given in the rarest of rare cases. Where the alternative option is unquestionably foreclosed. Then the SC also said some broad criteria to guide courts to impose death penalty. Only in the gravest cases of extreme culpability. Due regard must be paid to circumstances of the offender also. Thus, to give death penalty rarest of rare case has to be committed. Even after this case many petition has been filed. The human rights of the Accused along with the Rights of the victims. Can be said as aggravating and mitigating circumstances. Aggravating and mitigating circumstances:- Criminal law of our country shows that the distribution of the sentence is left entirely to the discretion of the judges for all most all offences, Mitigating factors :- DEATH SENTENCE – The mitigating factors that are considered by the judge before executing the death sentence are: The offence was committed under the influence of extreme mental or emotional disturbance. The age of the accused is very young /old There is a likelihood that the accused may be reformed , rehabilitated. The accused would not commit act of violence as continuing threat to society. The state shall prove by evidence that the conditions are not Met; that the accused acted under the pressure or domination of another person and that condition of the accused showed that he was mentally defective and that the defect had impaired his ability to appreciate the criminality of his conduct. Mitigating circumstances:- It helps the defence in bringing leniency in sentencing. The factor that can be considered by the judge while sentencing is
- The offender was coerced , threatened to commit the offence, it would not constitute a complete defence but would slightly affect the sentencing process. The involvement of the offender in the crime was mere accessory. The offender was extremely careful in carrying out the crime. It was because of provocation the act was committed. Aggravating factors, which are facts or factors that could lead a court to believe that an act was more harmful. Mitigating factors are matter of fairness or judicial discretion. It make the court to believe that the act was less harmful. Always importance is given to the mitigating circumstances. Another land mark judgement related to Detha penalty was machhi Singh Vs state of Punjab. In this case the Supreme Court had laid down the exhaustive lists for aggravating and mitigating circumstance.
Maharashtra government. Then the Supreme Court had called upon the constitution bench to see the nature of life imprisonment. The Supreme Court had said that life imprisonment means imprisonment till the end of the life. Also said we can make the revision application. But state will decide. There will be a committee to check it once. Unless and until the state government accepts your application you will be in jail. Till the last date of your life. The life imprisonment has a qualitative distinction with other form of punishment ( fixed imprisonment) Example :- A person is under the imprisonment for 10 Yrs. If a person got 6 months revision. So totally it was 9years 6 months. After that he will be released from jail. The section 433 A of the Indian penal code. Life imprisonment is imposed on a person for the offence where the law provides death as one of the form of punishment, where the sentences of death has been converted imprisonment for life. Such person shall nor be released from jail unless they complete 14 yrs of imprisonment. But the governor and president can pass a pardon for prisoners even if they have not yet served the minimum sentences of 14yrs in prison. Case laws :- Maru Ram Vs union of India The constitutional validity of the section 433A of the crpc was upheld. The Supreme Court of India had also upheld article 72 to be exercised on the advice of the central government and not by the president on his own at his discretion. And that the advice of the government is binding on him. Double life imprisonment:- It means serving two different sentences simultaneously. Case laws :- state of Maharashtra vs Vitthal Tukaram Modified a 23 years old youth death sentence to a sentence of double life imprisonment. It has to be served consecutively Here the crime comitted by th accused was heinous in nature. The court determined that the case did not fall under the category of “rarest of rare “ case. In this case the accused was 20 yrs old as charged in 2012 with raping and killing 4 yrs old niece. The lower court executed him for the double crimes of rape and murder. The case appeared before the Bombay Hogh court , where it was requested to confirm the lower courts decision and take appropriate further steps. The court had mitigated the death sentence imposed by the lower court with a term of double life imprisonment. Thus both life imprisonment run concurrently together. Issues with sentencing in India :- The sentencing has become a very complicated one. This issue is not specifically with India but all over the world.
- Sentencing disparity
- Sentencing consistency Sentencing lawlessness Article 14 and 21 applies at the stage of sentencing as said in Santosh Kumar vs state of Maharashtra case. There is no uniformity in sentencing. The public confidence will go down. Then, the people will go for some extra judicial methods like panchayat and all. To adhere the principle of proportionality a person should get punishment based on gravity / nature. The sentencing process should be fair and transparent. ( just adequate and proportionate principles) Irfan Vs sate of MP :- Where the convict got the death penalty from MP High court. The super court has asked the Chief justice of India to form a guidelines for the mitigating circumstances. Parliament has not provided any guideline till today they were not able to frame a guidelines. From 1980 to till 2023. Thus, more and more research needs to be done. Bilkis Bano case :- Hindu mob attacked bilkis Bano and her family during 2002. It was proved that bilkis was subjected to rape. After 14 Yrs the sate government the convicted person on the basis of good conduct. The Gujarat government had said that on the basis of good conduct they are doing that. The Supreme Court has decided the ……..? Many offence in IPC is punishable with imprisonment or fine or both. The judge have the option to decided whether simple or rigorous imprisonment. Some times imprisonment ( simple / rigorous ) is itself mentioned in the IPC. We can also says that the judge background will influence the sentencing. They are influenced by their social and educational background ( like abolitionist,) approach in death penalty. Sometimes too much pro- accused of stand ignoring the right of victim and the society at large. Lakshmi acid attack case 2013 - the supreme court has said that 3 lakh rupees needs to be given to the acid attack victim. Instead of following the deterrence or retributive model. Till today we don’t have any sentencing guidelines. Applying different theories of punishment and sentencing to various forms of crimes without any proper guidelines. ( it is a question at higher level / what is the justice condition in lower level) Example :- Rape and sexual offences even in these kinds of offences the judge will prefer to the rehabilitation theory. Sometimes, some might get serious punishment. Thus it leads to sentencing disparity. Bariyar case :- Interpreting the ‘rarest of rare k doctrine laid down in bachna Singh, a two judge bench of the
State of Punjab (Vs) Bawa singh :- Held one should keep in mind the social interest and conscience of the society while considering the determinative factor of sentence with gravity of crime “ the punishment should not be so lenient that it would shock the conscience of the society.
Probation of offenders Act 1958.
The main aim of this act is to give an opportunity of regirmation and rehabilitation to first time offenders under the age of 21 years. By releasing him on probation of good conduct. Then to keep the offender away from the evil consequences and give him a chance to lead a reformed and useful life. It helps in being out the positive change in the attitude of the offender. Probation is a matter if discipline and treatment. The probationer is given an opportunity to be independent away from the atmosphere with the criminals. It can be either after passing a sentence or without passing a sentence. Probation is different from parole. Section 3 - it says about the powers of the court to release certain offender after due admonition. If a person is guilty of offence which is punishable under section 379, 380,381, or 404 and 420of IPC. Or punishable with imprisonment for not more than two years or fine or both. Under ipc or under any other law.
- The court have the power to release the offender after due admonition. After considering the nature and character of the offender.
- The accused should not have any previous criminal records.
- The court by which the person is found guilty is expedient to do so. Once these conditions are fulfilled. The court can release that person. This power of the court is a absolute one. This section of the probation of the offenders act will prevail over any other law which is contrary to this. Section 4 - powers of the court to release certain offenders on probation of good conduct. An person found guilty of committed an offence. Such offence committed must not be punishable with death or imprisonment for life. The court by which he is found guilty is of the opinion that based on the nature of offence and character of the offender it is expedient to release him om probation of good conduct. If the conditions are fulfilled. The direct that person to be released on the probation after getting bond with are without sureties. The period of the probation will not exceed three years. The court is also empowered to pass a supervision order while the offender is released
on probation of good conduct. The period of supervision is mentioned in the order. It should not be less than one year. The court may also impose necessary conditions in the supervision order. Like the accused should abstain from intoxicants etc.. the court while passing the supervision order must explain to the offender the terms and conditions of the order and also furnish a copy of the order to each of the offender, sureties and the concerned probation officer. Section 5 - the power of the court to require the released offenders to pay compensation and costs. The offender released on admonition or on probation in the previous sections can be required to pay compensation to the victim or his family members. The order of payment of compensation shall be such as court thinks for reasonable for the loss or injury caused to any person by the commission of the offence. Example :- A committed theft. Victim got injured. The court will ask the accused t9 pay compensation and then release him on probation. If you not paying then you can go to jail. Section 6 Restrictions on imprisonment of offenders under 21 years of age. This section restrict the court on imprisonment of offenders who are under 21 yrs of age. Thus, if a person below 21yrs of age found guilty of having committed an offence punishable with imprisonment, the court should not sentence him to imprisonment. But if the offence is punishable with imprisonment for life then this restriction will not apply. Hence the offender can be sent to imprisonment. Section 9 - The offender has been released on under the section 4 of this act failed to observe the conditions of the bond. Then the court can issue the warrant of arrest. Or summons. The person have to attend the court at such time specified in the summons. It can be done by the court sue motto , or on application or the report of the probation officer. When the offender is brought before the court. The court can remand him to custody or grant bail with or without surety to appear on the date of hearing. If the court hearing the case is satisfied that the offender has failed to observe any conditions of the bond. The court can send him to sentence for that original offence. Or if it is the first time. Then continue the bond and impose him a penalty. If the penalty amount is not paid with the given period of time - then the court may sentence him for the original offence. Duties and powers ( section 13and 14) A probation officer is appointed by the state government In exceptional case , any person which the court deems fit can also appoint any as probation officer.
Mohammad Fukan case :- Section 11 - report of the probation officer Modern forms of punishment:- Section 53 of IPC. , Death - had become as a punishment in rarest of rare cases. Bachan Singh Vs state of Punjab Life imprisonment Gopal Vinayak Godse it was held against the state of Maharashtra that life imprisonment is life imprisonment and nothing else and therefore a prisoner sentenced to life imprisonment is obliged to spend the rest of his life in prison. But it has not been denied that such a sentence could be commuted or waived by the competent authority, in this logic it was confirmed by a chamber of three judges of the Supreme Court that the Criminal Code and the Rules of Procedure clearly distinguish between life and prison sentences. Transportation - it was omitted by the criminal law amendment act 1955. Imprisonment- It may be either rigorous or life imprisonment. It is the discretion of the judges to decide. But for some offences like Robbery, Dacoity only Rigorous punishment can be given. Forfeiture of property. The property used in the commission of the crime was forfeited. Example :- failing to make car payments to a bank can result in the forfeiture of your car. Fine Penalty is different from fine. Penalty is civil in nature. Crime is criminal in nature. Here certain exceptions is provided under sec 53. If a person is below 18 years commits a crime juvenile justice will decide it. ( after the criminal law amendment Act 1955 - transportation as a form of punishment was prohibited). Rehabilitation theory of punishment:- It main is at reformation of the offenders. So that he become a law binding citizen. It implies Change of heart of the offender. Even I do wrong in the pat. I shall take oath I will not wrong again. Thus, I will become a law binding citizen. This difference between this theory and other is it lies in its apporach. Other theories- others will get fear. But here properly rehabilitated. The central Arguments is that we have putting so many people inside the ‘jail’ they are coming out and they are doing the same thing again. So if we focus on innerrehabilitation.
Conventional approach is only to punish and not to reform them. The deterrence theory will aim at deterring the future criminality through the threat of punishment rather than through reformation of offenders. As solid argument of this theory was that - majority people will commit crime only because of the situation. 40% of the people are poor in India. Thus , it is the duty of the state to reform and rehabilitate them. Then, society will be more safe and become a better place to live. Example:- Juvenile justice Act , probation of offenders Act - here the entire focus is on rehabilitation and reform. It can be said that this theory offers a lasting solutions. The emphasis was in correctional treatment. Brooks pointed out - promoting job creation is more than a good economic policy. It is a good criminal justice policy. Another form is Rehabilitation- Brooks mentions that in his book , is mentoring schemes “ aiming at social reintegration” He also quotes that John Mabbott to illustrate the point with sufficient clarity - Mabbott says - “ A man who abstains fro, crime out of fear of punishment is not reformed” Example :- If a person want to commit a crime. But because of his inner heart is saying it is wrong. He is nit committing it, then he is reformed. But because of punishment he is not committing means he is not reformed. “ Every saint has a past and every sinner has a future” we cannot reform a criminal by giving death penalty. It focus Is on rehabilitation and reform - but how it becomes a theory of punishment. Rehabilitation is loos component “ like we have drug addiction centre - Incapacitation theory of punishment:- The word “incapacitation” is to prevent the offence by punishing, so that the future generation fears to commit the criminal act. It is of two types Temporary. - it is giving punishment for 1 yers, 2 years / 5 years. Permanent. - like death penalty, life imprisonment. Give punishment in such a manner to incapicate a person from committing the crime. The focus is not on the retribution or deterrence theory. DEFINITION:- “ incapacitation refers to the restriction of an individual’s freedom and liberties that they would normally have in society” One of the primary purpose of this theory is removing the sufficiently dangerous person from society. The main aim of the theory of incapacitation is to dissuade other from the offenders in the past. So that it is not followed by the future generations. This theory is originated form the Britain, during the 18th and 19th century. According to the study conducted by the university of Chicago - it has been proved that the crime rates can be prevented by 20 %.
