Crime and Punishment
by K.N. Kapur,
Assistant Government Advocate,
(High Court), Lucknow
Cite as : (1970) 2 SCC (Jour) 37
It is universally accepted that wherever in any society in any country exist wealth, land and woman crimes are bound to occur and thrive in one form or the other. To check occurrence or growth of crimes punishment is provided by that society in a country.
Crimes were defined and punishment regulated earlier by the society, later on by the representative of the society. At present these are coined and controlled by the Sovereign power of a country.
The Panal Law of a country will always tend to change according to the views of the sovereign power of that country, be it a King, a President, a Party, or a Parliament.
When the views held by one Government and its successor differ fundamentally, a corresponding change can be expected in the laws of crime and in the administration of criminal laws.
Such changes took place in India on the Muslims assuming sovereignty, later on between 1773 and 1861 when East India Company and the Imperial force of England took a firm foothold in India and began to rule, between 1861 to August 1947, when nationalist elements realising the curse of serfdom began to assert itself and after August 1947 onwards when India attained Independence.
Recently the most patent change made, is the abolition of the sentence of Transportation for Life. Presently I purpose to deal with the crime and punishment as laid down in the Law of Crimes in India, and then during Muslims rule, and the period between 1773 and 1861 called the period of transformation. Glimpses of Muslim-system of crime and punishment are to be found in the Indian Penal Code even this day.
There are some 20 types of crime contained in the Indian Penal Code. There are other species of crimes under different Acts as well like Arms Act, Gambling Act, Excise Act, Foreigners Act, Factories Act, Contempt of Courts Act, Customs Act, Explosive Substance Act and Prevention of Food Adulteration Act, Prevention of Corruption Act, Suppression of Immoral Traffic in Women Act and scores of other such Acts.
In this Article I shall confine myself only to those crimes as are contained within 511 sections of the Indian Penal Code.
These crimes can be broadly classified as under:
1. Criminal conspiracy : Chapter V-A, Section 120-A and see Section 120-B.
2. Offences against the State : (Chapter VI) : Like : Waging or attempting to wage war or abetting it against the Government of India; conspiracy to commit such offence:
Sedition: Waging war against any Asiatic Power and the like.
3. Offences against Army, Navy and Air Force. (Chapter VII)
4. Offences against public Tranquillity
like forming of unlawful assembly, committing affray or rioting. (Chapter VIII)
5. Offences by or relating to Public Servants like taking or giving of bribe. (Chapter IX)
6. Offences relating to elections. (Chapter IX-A)
7. Offences in regard to contempt of the lawful authority of public servants, like refusing to accept or take process issued by a court, or obstructing public servant in discharge of his lawful duties. (Chapter X)
8. Offences against false evidence and public justice. (Chapter XI)
9. Offences relating to coins and Government stamps. (Chapter XII)
10. Offences relating to Weights and Measures. (Chapter XIII)
11. Offences relating to Public Health, safety, Convenience, Decency and morals. (Chapter XIV)
Obscene acts and songs, sale of obscene books or objects.
12. Offences relating to religion. (Chapter XV)
13. Offences affecting the human body. (Chapter XVI)
These consist Culpable homicide, causing of hurt, wrongful restrainment, confinement, using criminal force, kidnapping, Criminal assault on woman against her consent or with consent when below 16 years of age, and unnatural offences.
14. Offences against property. (Chapter XVII)
Robbery and dacoity.
II. Criminal misappropriation and Criminal Breach of Trust.
II. A.Dishonestly receiving of stolen property.
V. Criminal Trespass.
15. Offences relating to Trade or Property marks. (Chapter XVIII) These consist of forgery, making false documents, making counter-feit seal, falsification of accounts etc., etc.
16. Offence of Breach of Contract to attend on and supply wants of helpless person. (Chapter XIX)
17. Offence relating to marriage. (Chapter XX)
18. Offence of Defamation. (Chapter XXI)
19. Offences like criminal intimidation, insult and annoyance. (Chapter XXII)
20. Attempts to commit any offence.
It is to be remembered that at present an offence is not committed against any individual, but it is committed against the State itself. However, under the Indian Penal Code there are certain offences relating to person and property which almost give an idea that some offences are committed against the individual alone, while some offences are such which concern both the individual and the State simultaneously though therein superiority of the State is recognised more than that of the individual.
This is to be seen in the species of the offences which can be compromised or compounded by the individual aggrieved even outside the court, while there are some belonging to the latter category which can be so compounded only with the express permission of the court, before whom the matter be pending which always has a discretion to exercise in allowing or refusing permission to compound.
This can be found in detail under Section 345 of the Code of Criminal Procedure.
Different forms of punishment. Under Section 53 of the Indian Penal Code different sentences have been provided for different offences.
Sentences which could be inflicted include imposition of fine, imprisonment, simple or rigorous, extending from imprisonment till rising of the court to 14 years, forfeiture of property, life imprisonment and death penalty which is known as Capital punishment. Imprisonment is carried out by confining the convict in jail and putting him to labour according to his capacity. Maximum imprisonment as provided under Section 35, Cr.PC is 14 years. But imprisonment for life is imprisonment for the whole life. The Supreme Court has made such observations in the case of Gopal Vinayak Godse reported in 1961 3 SCR 440: AIR 1961 SC 600.
Death sentence is carried out in our country by hanging the condemned prisoner by the neck till he is dead.
The sentence of death and imprisonment for life or as a matter any sentence imposed and upheld by courts of law can be commuted, condoned or pardoned by the Government under Articles 72 and 161 of the Constitution of India or under Sections 401 and 402 of the Code of Criminal Procedure. "A pardon has the effect of not merely rescinding the sentence and the conviction but also wiping out the offence in the eyes of the law" as authoritatively said by Sri K.L. Misra, Advocate-General, Uttar Pradesh.
Solitary Confinement. There is yet one more form of imprisonment. It is the punishment of solitary confinement which is worst of all punishments contained in the Penal Code. It is simply barbaric. Under Section 73 of the I.P.C. the court punishing an offender may order the offender to be kept in solitary imprisonment for any portion of imprisonment to which he is sentences. This period has been fixed so as not to exceed 3 months in all, in the Indian Penal Code.
Making of the I.P.C. The Indian Penal Code was originally drafted by T.B. Macauley in 1834 to replace the Mohammedan Penal Law for administration of Justice in British possession.
During the time of Warren Hastings it was felt that some of the provisions of Mohammedan Penal Law could not be allowed on grounds of humanity and justice.
Mohammedan Law in India. This leads to the consideration of the Mohammedan Penal Law existing in India prior to the British East India Company appearing on our soil.
I may here mention that the primary basis of the Mohammedan Criminal and Penal Law was the Quran. As I get it from Dr Topas Banerji's Essay on India Penal Code, it was only 80 or 90 verses of the Quran which lay something like general rules on Civil or Criminal matters.
The law of the Quran was supplemented by the Sunna or the rules of conduct, deduced from the precepts and decisions of the Prophet.
Basic and long-standing principles of law laid down in the Hedaya or Hadis and Fatwa-i-Alamgiri. Then laws were administered by the Qazi. Since there were variations between the laws in the Hedaya (Hadis) the Hanfi law and the Fatwa-i-Alamgiri, the Qazi enjoyed the liberty to interpret the law as he liked, he could even differ from his own earlier decision and twist the law as he wished.
The Mohammedan Penal Law, as I find, can be classified under five forms of punishment namely, 1. Qasas, 2. Diyut, 3. Hudd, 4. Tazeer, and 5. Siyasa.
1. Qasas Qasas means retaliation, it would come into operation in offences like wilful homicide, maiming or wounding. This retaliation was considered to be the privilege or private right of the man murdered, maimed or wounded. This right would become the right of the heirs of the murdered.
The punishment or sentence of Qasas being a private right, the possessor of it could remit his claim, forgive his offender, compound with the consent of the murderer for compensation, or claim life for life, and a limb for a limb.
Where wilful homicide was established and the Qazi had inflicted the sentence of Qasas then at times the nearest of the kin of the deceased was required to execute the sentence of death otherwise execution was done in presence of the next of the kin of the deceased by severing the head of the murderer with a sword. This mode of execution later on was changed to that of hanging towards the later part of the nineteenth century.
But as said above, even murders were compoundable by the aggrieved and the aggressor.
A very interesting example which is found in Hedaya (Hadis) Volume IV relates to an occurrence of murder. A young married man was murdered by another young man. The widow of the murdered complained to the Qazi. Then later on the advice of the Qazi, the woman withdrew her claim for Qasas or retaliation and the murderer was set at liberty and she married him.
The decision pronounced by the Qazi was perhaps not followed thereafter as it was thought that that would lead to several murders; for being not content with the husbands the wives would procure the murders of the husband by their lovers and whom they would marry later on. Let us hope that such decision of the Qazi is not introduced now.
2. Diyut. The second form of punishment was known as Diyut or blood money. The punishment of Qasas was exchangeable with Diyut as desired by the person aggrieved. The idea was to satisfy and relieve the mind of the aggrieved. This Diyut was an alternative to Qasas.
3. Hudd. The third form of punishment was called Hudd or specific penalty fixed with reference to the right of God or as laid down in the Quran. Qasas was the right of the man, Tazeer form of penalty was in the discretion of the Qazi and Hudd was the right of God. This Hudd penalty could not be altered or modified in quality and quantity by the Qazi who had to abide by in obedience to the command made by the Quran in sentencing the convict to the specified or prescribed punishment.
For the offence of Zina (rape) the specified punishment was lapidation or stoning to death.
This sentence would be suspended if the convict was sick or was pregnant.
This sentence of lapidation or pelting of stone to death would not be carried into effect if witnesses to zina or any one of them declined to stone first. Qufr or slander of a chaste Muslim's countenance by false imputation was punishable by inflicting 80 stripes if the offender was a free man, and 40 stripes if the offender was a slave.
For Theft punishment specified was amputation.
For Highway Robbery or Sarika-i-Kubran accompanied with murder even by one of the dacoits then the whole gang of the dacoits was liable to be punished by the Ruler as prescribed in the Quran.
4. Tazeer. The fourth form of punishment was called Tazeer. These were of two characters, namely, one of private nature which could be excused by the person aggrieved, the end being the satisfaction of the individual right of the aggrieved or the next of the kin.
The other character of Tazeer was of public nature which only the Ruler or his delegate was competent to remit.
The Qazi in his discretion could inflict the following amongst other punishments:
I. Such punishment as would make the offender feel ashamed of himself depending of course upon the nature of the offence and the status or character of the offender.
II. Public reprimand.
III. Exposure at the door of the court.
IV. Public exposure with the face blackened and so on and so forth
5. Siyasa. The fifth form of punishment was Siyasa or exemplary punishment which could be inflicted by the Ruler as deemed expedient for the preservation of community against dangerous and incorrigible characters. The ruler by virtue of Siyasa could inflict death penalty in any manner and howsoever horrible, or savage, which I need not narrate at the moment.
Warren Hastings felt that some of the provisions of Mohammedan Penal Law should not be permitted on grounds of humanity and justice. Too much or abrupt interference to precipitate matters was not considered wise and so gradually and gradually through Regulations starting from the year 1772 the Mohammedan system of law was modified.
On 15-8-1772 first change was made by Warren Hastings in the name of suppressing the ruthless and wanton depredation of the robbers by providing that the robbers or dacoits were to be executed in their own villages, and the families of the dacoits were to become slaves of the State, while the villagers of that village were to pay fine.
At this time dacoities were on the increase.
By the year 1804 exemplary corporal punishment was added to the penalties in order to repress the crime.
By another regulation in 1808 it was provided that if the notorious dacoit or dacoits did not surrender by a certain specified date, they would be liable for even transportation for life.
Qasas or Diyut form of punishment were taken away from the individual and punishment by mutilation of body was stopped.
Formerly if the heir of a murdered man refused to prosecute the murderer the State would not per se prosecute him. This was stopped and the discretion of the heirs of the deceased was taken away, and the offender was prosecuted by the State and the law was to take its own course.
More and more reforms were made by Act XI of 1857, and Act XXVI of 1858 which were enacted to deal with offences of waging war against the State, and death penalty or transportation for life was provided as punishment for those offences.
The draft Penal Code as preferred by T.B. Macauley in 1837, was all along being considered by Law Commissioners and provisions gradually began to creep in to replace the Mohammedan notion of crime and punishment and ultimately the system was 'anglicised'.
Indian Penal Code was passed by the Legislative Council of India on 6-10-1860 on which date it received the assent of the Governor-General. But in order to enable people, the judges and the administrators to acquaint themselves with the provisions of the Code, it was decided that the operation of the Indian Penal Code would come in force with effect from 1-1-1862.
Since then with amendments and modifications this Indian Penal Code has come to be the law of the land, though in the Indian Penal Code the matter of punishment is indeed very severe still. In the words of Sir Hari Singh Gour
"No civilised country today imposes such heavy sentences as does the (India) Penal Code. Heavy sentences have long gone out of fashion in England and the order of sanctity and perfection attaching to the Penal Code should not deter indigenous legislatures to thoroughly revise the sentences bring them into confirmity with the modern civilised standards."
The Indian Penal Code in his opinion is "Draconian in its severity as regards punishment", according to Sir Hari Singh Gour whose firm view is that provision of solitary confinement in the punishment under Section 73 of the Indian Penal Code lacks rational basis. Solitary confinement has been abolished in U.K. and it will be in keeping with the civilisation or culture of India to wipe out this solitary confinement a kind of punishment which is a sordid stinking stigma left by the Britishers in the Penal Code.
Sir Syed Ahmad as far back as in 1888 had said that when the country is changing, "new laws should be brought forward to deal with the new circumstances".
These words of Sir Syed Ahmed still ring true. Times have now changed. The views of our nation as also of other nations on punishment have undergone a change. Punishment is no longer a means for satisfying the feelings of revenge of the victim.
The principal object of punishment today is protection of society, and which can be achieved partly by reforming the criminal and partly by deterrence so as to prevent him and also others from committing the crime.
There is emphasis on the reformative aspect brought about by the humanitarian forces.
Law now should look to the criminal as well and not merely the crime in inflicting the punishment.
And the society too should become actively responsive to the idea Hate the Sin and Not the Sinner.