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Mr. Abu Noman Mohammad Atahar Ali
Honorable Course Teacher
Law of Crime
Course code # LLBP 2410 by: Ishrat Jahan (ID: 2008020302017) & Md. Hasanat Parvez (ID: 2008020302008)
Batch # 11th LLB (Pass) Fall - 2009 Department : Law & justice School of Arts & social science
South East University
Crime & criminality have great influences regarding social, political and economical aspect. Law of crime for that reason makes its importance among the legal subjects. When we became the student of law, we have come to realize the philosophical aspects of legal study how - Law determines the human civilizations in numerous ways. All these realizations get some new dimensions when we get Mr. Abu Noman Mohammad Atahar Ali, as a course teacher of Law of crime in spring/09 semester. His thoughtful and dynamic lectures just booming to the student’s world of thinking. The way of his throwing the questions and providing the answers, opened doors towards a different land of philosophy. We the students are grateful to him not only for the opportunity of having some new ideas in broader aspect, but also for making a easy access to the complicated subject like Law Of Crime.
South East University Spring /2009 Dhaka
Md. Hasanat parvez
INDEX OF CONTENTS Sl. 01. 02. 03. 04. 05. 06. 07. 08. 09. 10. 11. 12. Topics Abstract What is Crime? History of crime Types and categories of Crime Religion and crime Intelligence and Crime Criminalization Natural law theory Psychological Theories of Crime Crimes & Criminal Laws in Bangladesh Conclusion References Page 03 04-05 06-08 09-10 11-12 13 14 15-16 17-18 19-22 23 24
“Don’t hate criminals but hate the crimes” – it may sound easy but it has a vast and deeper significance in aspect of reducing crime from the society. For that reason it needs to get some clear conceptions regarding crime and related matters. From the very beginning of human civilization the concept of crime and its consequences have been effecting both positive and negatively. There must be a confusion whether the so-called development of human civilization would how much be able to reach in this level without the various direct and indirect influences regarding the crime matters? For example in IT sector much more progress have been occurred to prevent various cyber crimes. So crime is a reality, we can’t ignore it but we need a better understanding of crimes – its causes – its effects - to reduce and control it for a peaceful and harmonious society. Crime has been defined as an anti social, immoral or sinful behavior, which is contrary to the cherished norms, beliefs customs and traditions of given society. According another school of thoughts, crime is an act, which a particular social group regards as sufficiently menacing to its fundamental interests to justify formal reaction to restrain the violation. Crime seems to be an out come of numerous sociological, economical, genetically or heridetical influences on human behavior. The concept “Crime” needs a very wide and vast area to be discussed properly. It is a great limitation of this paper that, we have a narrower scope in respect of time and other logistics to perform this job effectively. In a very short form we just tried to emphasize to make some brief analysis of the key factors regarding crime.
What is crime?
Crime is a behavior or activity which breaks the legal code or more appropriately, which offends the social code of a particular community. Within each culture, the line between normal and criminal, or merely deviant behaviour, is drawn differently by varying codes or bodies of criminal law. During the eighteenth and early nineteenth centuries, crime was usually considered as the deliberately chosen behavior of rational actors. It was accepted that those who break the law at the expense of others do so willfully and selfishly. The sociologist Emile Durkheim suggests that crime is both inevitable in society and also necessary. Even in society of 'saints', there would have to be 'crime', for without crime society would not exist. Subculture theories of crime tend to stress the importance of the shared values and beliefs of groups of people who are able to justify their criminal activities. They generally live in similar areas. Primitive and rural communities tend to have less criminality involved in their affairs than do the restless, profit-seeking, highly mobile, mixed populations of modern industrial societies. Peasant communities change slowly and hence are relatively crimeless.
A normative definition views crime as deviant behavior that violates prevailing norms – cultural standards prescribing how humans ought to behave normally. This approach considers the complex realities surrounding the concept of crime and seeks to understand how changing social, political, psychological, and economic conditions may affect the current definitions of crime and the form of the legal, law enforcement, and penal responses made by society. These structural realities remain fluid and often contentious. For example, as cultures change and the political environment shifts, societies may criminalise or decriminalise certain behaviours, which will directly affect the statistical crime rates, determine the allocation of resources for the enforcement of such laws, and (re-)influence the general public opinion.
Similarly, changes in the collection and/or calculation of data on crime may affect the public perceptions of the extent of any given "crime problem". All such adjustments to crime statistics, allied with the experience of people in their everyday lives, shape attitudes on the extent to which law should be used to enforce any particular social norm. There are many ways in which behaviour can be controlled without having to resort to the criminal justice system. Indeed, in those cases where no clear consensus exists on a given norm, the use of criminal law by the group in power to prohibit the behaviour of another group may be considered an improper limitation of the second group's freedom, and the ordinary members of society may lose some of their respect for the law in general whether the disputed law is actively enforced or not. Legislatures pass laws (called mala prohibita) that define crimes which violate social norms. These laws vary from time to time and from place to place: note variations in gambling laws, for example. Other crimes, called mala in se, are nearly universally outlawed, such as murder, theft and rape. Crimes identified in different groups by their nature include acts of property offences, professional thefts, habitual criminal offences, cheating, white-collar offences (crimes like break of promise, lying, cheating etc committed by persons established in the society economically and/or socially), juvenile delinquency, smuggling and cruelty to women and children. Many other activities like child sexual abuse, drug and women trafficking, domestic violence on women; threats of violence or force, actual physical violence, injuries and rape are also criminal acts. In many countries, drunkenness itself is not an offence, but many kinds of conduct closely related to it, such as disorderly conduct or disturbing the peace, are crimes. Drug addicts often commit certain types of crime mainly because they need money to support a habit made impossibly expensive.
History of crime
The idea of crime has a long history. Some religious communities regard sin as a crime; some may even highlight the crime of sin very early in legendary or mythological accounts of origins — note the tale of Adam and Eve and the theory of original sin. What one group considers a crime may cause or ignite war or conflict. However, the earliest known civilizations had codes of law, containing both civil and penal rules mixed together, though not always in recorded form. The Sumerians produced the earliest surviving written codes. While it is known that Urukagina had an early code that does not survive, a later king, Ur-Nammu left the earliest that is extant, the Code of Ur-Nammu, which prescribed a formal system of penalties for specific cases in 57 articles. The Sumerians later issued other codes, including the "code of Lipit-Ishtar". This code, from the 20th century BCE, contains some fifty articles, and has been reconstructed by comparison among several sources. The Sumerian was deeply conscious of his personal rights and resented any encroachment on them, whether by his King, his superior, or his equal. No wonder that the Sumerians were the first to compile laws and law codes. Successive legal codes in Babylon, including the code of Hammurabi, reflected Mesopotamian society's belief that law derived from the will of the gods (see Babylonian law). Many states at this time functioned as theocracies, with codes of conduct largely religious in origin or reference. Sir Henry Maine (1861) studied the ancient codes available in his day, and failed to find any criminal law in the "modern" sense of the word. While modern systems distinguish between offences against the "State" or "Community", and offences against the "Individual", the so-called penal law of ancient communities did not deal with "crimes" (Latin: crimina), but with "wrongs" (Latin: delicta). Thus the Hellenic laws treated all forms of theft, assault, rape, and murder as private wrongs, and left action for enforcement up to the victims or their survivors. The earliest systems seem to have lacked formal courts. 7
The Romans systematized law and exported it across the Roman Empire. Again, the initial rules of Roman Law regarded assaults as a matter of private compensation. The most significant Roman Law concept involved dominion. The pater familias owned all the family and its property (including slaves); the pater enforced matters involving interference with any property. The Commentaries of Gaius on the Twelve Tables treated furtum (in modern parlance: theft) as a tort. Similarly, assault and violent robbery involved trespass as to the pater's property (so, for example, the rape of a slave could become the subject of compensation to the pater as having trespassed on his "property"), and breach of such laws created a vinculum juris (an obligation of law) that only the payment of monetary compensation (modern "damages") could discharge. Similarly, the consolidated Teutonic Laws of the Germanic tribes, included a complex system of monetary compensations for what courts would now[update] consider the complete range of criminal offences against the person, from murder down. Even though Rome abandoned its Britannic provinces sometime around 400 AD, the Germanic mercenaries – who had largely become instrumental in enforcing Roman rule in Britannia – acquired ownership of the land there and continued to use a mixture of Roman and Teutonic Law, with much written down under the early Anglo-Saxon Kings. But only when a more centralized English monarchy emerged following the Norman invasion, and the kings of England attempted to assert power over the land and its peoples, did the modern concept emerge, namely of a crime not only as an offence against the "individual", but also as a wrong against the "State". This idea came from common law, and the earliest conception of a criminal act involved events of such major significance that the "State" had to usurp the usual functions of the civil tribunals, and direct a special law or privilegium against the perpetrator. All the earliest English criminal trials involved wholly extraordinary and arbitrary courts without any settled law to apply, whereas the civil (delictual) law operated in a highly developed and consistent manner (except where a King wanted to raise money by selling a new
form of writ). The development of the idea that the "State" dispenses justice in a court only emerges in parallel with or after the emergence of the concept of sovereignty. In continental Europe, Roman law persisted, but with a stronger influence from the Church. Coupled with the more diffuse political structure based on smaller State units, various different legal traditions emerged, remaining more strongly rooted in Roman jurisprudence modified to meet the prevailing political climate. In Scandinavia the effect of Roman law did not become apparent until the 17th century, and the courts grew out of the things — the assemblies of the people. The people decided the cases (usually with largest freeholders dominating). This system later gradually transformed into a system of a royal judge nominating a number of most esteemed men of the parish as his board, fulfilling the function of "the people" of yore. From the Hellenic system onwards, the policy rationale for requiring the payment of monetary compensation for wrongs committed has involved the avoidance of feuding between clans and families. If compensation could mollify families' feelings, this would help to keep the peace. On the other hand, the threat of feudal warfare was played down also by the institution of oaths. Both in archaic Greece and in medieval Scandinavia, the accused was released if he could get a sufficient number of male relatives to swear him unguilty. This may be compared with the United Nations Security Council where the veto power of the permanent members ensures that the organization is not drawn into crises where it could not enforce its decisions. These means of restraining private feuds did not always work, and sometimes prevented the fulfillment of justice but, in the earliest times, the "state" did not always provide an independent police force. Thus criminal law grew out of what is now tort and, in real terms, many acts and omissions classified as crimes actually overlap with civil-law concepts. The development of sociological thought from the 19th century onwards prompted some fresh views on crime and criminality, and fostered the beginnings of criminology as a study of crime in society.
Types and categories of Crime Crimes are generally divided into two main categories - indictable, which are trial able by higher courts and non-indictable, which are dealt with summarily by magistrates in the lower courts. The indictable offences include larceny, breaking and entering, receiving stolen property, frauds, false pretences, sexual offences, violence committed against a person and homicide. The non-indictable category includes things such as malicious damage, cruelty to children, assaults, offences by prostitutes and motoring and traffic offences. However, laws have been framed to include these in the list of indictable crimes. Crimes that are difficult to handle in a society are those committed by businessmen, politicians, government employees, doctors and in general, persons enjoying proximity to power or commanding positions in the community. Violations of the law by businessmen include those related to receiverships and bankruptcies, restraint of trade such as monopoly, illegal rebates, infringement of patents, trademarks and copyrights and misrepresentation of advertising. Norms concerning food and drugs sale and anti-pollution regulations also may be violated. Many employers violate laws regarding wages, working hours, and public contracts. Politicians and government employees may obtain illegal financial gains by furnishing favors or confidential information to business firms and obtaining illegal commissions. In the medical profession, doctors may give illegal prescriptions for narcotics and give false testimony. Embezzlement is a common form of occupational crime. Occupational offenders rarely see themselves as criminals. Classifications of offences under penal code: Under the Penal Code, various offences have been classified into seven broad categories on statistical basis. They are: 1. Offences against person. 2. Offences against property. 3. Offences against state. 4. Offences against public tranquility. 10
5. Offences relating to documents. 6. Offences relating to public servant. 7. Offences affecting mental order. Researchers and commentators may classify crime into categories, including violent crime, property crime, and public order crime. Following a list of various crimes are given:
• • • • • •
Abuse of the Disabled Aircraft Hijacking Animal Abuse Arson Child Abuse Computer and Internet Crimes
• • • • • • • • • • • • • • •
Domestic Violence Drunk Driving Elder Abuse Environmental Crime Fraud Genocide Graffiti Happy Slapping Hate Crimes Homicide Kidnapping Modern Slavery Money Laundering Perjury Police Brutality
• • • • • • • • • •
Red Light Running Sex Crimes Speeding Squatting Stalking Terrorism Theft Torture War Crimes White-Collar Crime
Religion and Crime
Socially accepted or imposed religious morality has influenced secular jurisdictions on issues that may otherwise concern only an individual's conscience. Activities sometimes criminalized on religious grounds include (for example) alcohol-consumption (prohibition), abortion and stem-cell research. In various historical and present-day societies institutionalized religions have established systems of earthly justice which punish crimes against the divine will and specific devotional, organizational and other rules under specific codes, such as Islamic sharia or Roman Catholic canon law. But flaw in these assertions is that it can be simply argued that strict adherence to the law of the land is adequate to ensure peace. And if everyone followed the rule of law then that would suffice to make a society free from crime and injustice. The fact that a strict theocratic state has less crime is not because people are so conscientious through deep belief in the true spirit of religion that they refrain from wrong doings but because severe punishments by the theocratic state machinery are enforced and serve as powerful deterrents. In other words it is not primarily a fear of God that helps to prevent crime in a theocratic state, but a fear of human. Had there been any slack in the enforcement of law or if left to the people's religious conscience then those societies would be full of crimes and all sorts of immoral acts. The theocratic system of laws did not succeed in eliminating the evil instincts in the heart of the followers, only succeeded in putting a lid on it with the potential for that lid to rupture any time as is sometimes reported in those societies. On the other hand those secular non- theocratic states that have managed to enforce the civil laws effectively also are free from crimes, example is Singapore, communist China (Before the openness). In fact it is ironically true that, autocracy in any form helps to enforce law in any society. Since theocracy is a form of autocracy it tends to give one an illusion that it is religion that is ensuring the peace in the society, where in fact it is the draconian enforcement by humans of a (theocratic) authoritarian rule, which is responsible.
If one thinks carefully it will be evident that religious injunctions actually REAFFIRM what humans already intuitively know to be wrong or right through the faculty of conscience. CONSCIENCE is as much a part of inherent human instinct like any other . Like all human instincts it is rooted in the evolutionary biology of human over millions of years. Natural selection (acting on the profound laws of Physics over a long span of time) gives rise to those human instincts that help in its survival and propagation as a species. In more modern biological language, conscience is the inhibiting effect of our cerebral cortex on the primitive impulses coming from our reptilian part of the brain ( limbic system). It has been observed quite extensively by psychologists and neurologists that a serious damage to the cerebral cortex impairs the judgment faculty of humans and a conscientious person can become less conscientious while still functioning normally otherwise. These primitive instincts are also biologically rooted and are traced to the biological imperatives of aggression, dominance, mating and propagation needed for evolutionary survival. For lower animals only these baser instincts are necessary for their survival and they didn't evolve conscience (no highly developed cerebral cortex). Only humans evolved this faculty as evolution "chose" (randomly of course) humans to the most evolved species. Human species has the highest Encephalization Quotient (E.Q = 7), which is a measure of how large the brain is compared to the size that is required for a basic survival. Humans are not limited to the basic survival impulses of lower animals, but have memory, experience and knowledge all acquired through the extra amount of brain (mostly cerebral cortex) that helps him to judge his surroundings and make informed decisions, sometimes in contradiction to the basic urges. So the assertion that morality is not rooted genetically is also not in accord with the contemporary view of biology. Our instinct of conscience developed long before the relatively recent arrival (in evolutionary terms) of revealed religions, so stating that conscience (or sense of right and wrong) is a result of God's revelation is an anachronism. The revealed religions of Islam and Christianity came long after the Greeks already were familiar with and discussing the concepts of morality. All aspects of morality that religion preaches had been taught by Confucius, Buddha, and other ancient sages in different civilizations independent of divine preaching of morality. Besides it contradicts simple common sense that if indeed God was the only source of morality then the complexity of human brain and its evolution and its well known role in judgment faculty would be totally redundant and unnecessary. After all God could just instill that faculty without this unnecessary structural complications in our brain which is known to affect our judgment faculty and hence sense of morality.
Intelligence and Crime
James Q. Wilson's and Richard J. Herrnstein's Constitutional-Learning Theory integrates biology and social learning in order to explain the potential causes of criminality. They argue that criminal and noncriminal behavior have gains and losses. If the gains that result from committing the crime (e.g. money) outweigh the losses (e.g. being punished), then the person will commit the criminal act. Additionally, they maintain that time discountingand equity are two other variables that play an important role in criminality. Time discounting refers to the immediate rewards that result from committing the crime vis-a-vis the punishment that may result from committing the crime, or the time that it would take to earn the reward by noncriminal means. Because people differ in their ability to delay gratification, some persons may be more prone to committing criminal acts than others. Moreover, judgments of equity may result in the commission of a criminal act. The gains associated with committing the crime may help to restore a person's feelings of being treated unjustly by society. Wilson and Herrnstein hypothesize that there are certain constitutional factors (such as intelligence and variations is physiological arousal) that determine how a person weighs the gains and losses associated with committing a criminal act. According to Wilson and Herrnstein, physiological arousal determines the ease in which people are classically conditioned; therefore, people who are unable to associate negative feelings with committing crime will not be deterred from committing criminal acts. In addition, they argue that impulsive, poorly socialized children of low intelligence are at the greatest risk of becoming criminals. However, they have only demonstrated that low intelligence and crime occur together frequently; they have not demonstrated that low intelligence is the cause of crime.
One can view criminalization as a procedure intended as a pre-emptive, harmreduction device, using the threat of punishment as a deterrent to those proposing to engage in the behavior causing harm. The State becomes involved because they usually believe costs of not criminalizing (i.e. allowing the harms to continue unabated) outweigh the costs of criminalizing it (i.e. restricting individual liberty in order to minimize harm to others).
Criminalization may provide future harm-reduction even after a crime, assuming those incarcerated for committing crimes are more likely to cause harm in the future.
Criminalization might be intended as a way to make potential criminals pay for their crimes. In this case, criminalization is a way to set the price that one must pay (to society) for certain actions that are considered detrimental to society as a whole. In this sense criminalization can be viewed as nothing more than Statesanctioned revenge.
States control the process of criminalization because:
Even if victims recognize their own role as victims, they may not have the resources to investigate and seek legal redress for the injuries suffered: the enforcers formally appointed by the State have the expertise and the resources.
The victims may only want compensation for the injuries suffered, while being indifferent to a possible desire for deterrence (see Polinsky & Shavell (1997) on the fundamental divergence between the private and the social motivation for using the legal system).
Fear of retaliation may deter victims or witnesses of crimes from taking any action. Even in policed societies, fear may inhibit reporting or co-operation in a trial.
Natural law theory
Justifying the State's use of force to coerce compliance with its laws has proven a consistent theoretical problem. One of the earliest justifications involved the theory of natural law. This posits that the nature of the world or of human beings underlies the standards of morality or constructs them. Thomas Aquinas said: "the rule and measure of human acts is the reason, which is the first principle of human acts" (Aquinas, ST I-II, Q.90, A.I), i.e. since people are by nature rational beings, it is morally appropriate that they should behave in a way that conforms to their rational nature. Thus, to be valid, any law must conform to natural law and coercing people to conform to that law is morally acceptable. William Blackstone (1979: 41) describes the thesis: "This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original." But John Austin, an early positivist, applied utilitarianism in accepting the calculating nature of human beings and the existence of an objective morality, but denied that the legal validity of a norm depends on whether its content conforms to morality. Thus in Austinian terms a moral code can objectively determine what people ought to do, the law can embody whatever norms the legislature decrees to achieve social utility, but every individual remains free to choose what he or she will do. Similarly, Hart (1961) saw the law as an aspect of sovereignty, with lawmakers able to adopt any law as a means to a moral end. Thus the necessary and sufficient conditions for the truth of a proposition of law were simply that the law was internally logical and consistent, and that the state's agents used state power with responsibility. Dworkin (2005) rejects Hart's theory and argues that fundamental among political rights is the right of each individual to the equal respect and concern of those who govern him. He offers a theory of compliance overlaid by a theory 16
of deference (the citizen's duty to obey the law) and a theory of enforcement, which identifies the legitimate goals of enforcement and punishment. Legislation must conform to a theory of legitimacy, which describes the circumstances under which a particular person or group is entitled to make law, and a theory of legislative justice, which describes the law they are entitled or obliged to make. Indeed, despite everything, the majority of natural-law theorists have accepted the idea of enforcing the prevailing morality as a primary function of the law. This view entails the problem that it makes any moral criticism of the law impossible in that, if conformity with natural law forms a necessary condition for legal validity, all valid law must, by definition, be morally just. Thus, on this line of reasoning, the legal validity of a norm necessarily entails its moral justice. One can solve this problem by granting some degree of moral relativism and accepting that norms may evolve over time and, therefore, one can criticize the continued enforcement of old laws in the light of the current norms. The law may be acceptable but the use of State power to coerce citizens to comply with that law is not morally justified. In more modern conceptions of the theory, crime is characterized as the violation of individual rights. Since society considers so many rights as natural (hence the term "right") rather than man-made, what constitutes a crime is also natural, in contrast to laws (which are manmade). Adam Smith illustrates this view, saying that a smuggler would be an excellent citizen, "...had not the laws of his country made that a crime which nature never meant to be so." Natural-law theory therefore distinguishes between "criminality" (which derives from human nature) and "illegality" (which originates with the interests of those in power). Lawyers sometimes express the two concepts with the phrases malum in se and malum prohibitum respectively. The regard a crime malum in se as inherently criminal; whereas a crime malum prohibitum (the argument goes) counts as criminal only because the law has decreed it so.
Psychological Theories of Crime
Psychological theories of crime begin with the view that individual differences in behavior may make some people more predisposed to committing criminal acts. These differences may arise from personality characteristics, biological factors, or social interactions. Psychoanalytic Theory : According to Sigmund Freud (1856-1939), who is credited with the development of psychoanalytic theory, all humans have natural drives and urges repressed in the unconscious. Furthermore, all humans have criminal tendencies. Through the process of socialization, however, these tendencies are curbed by the development of inner controls that are learned through childhood experience. Freud hypothesized that the most common element that contributed to criminal behavior was faulty identification by a child with her or his parents. The improperly socialized child may develop a personality disturbance that causes her or him to direct antisocial impulses inward or outward. The child who directs them outward becomes a criminal, and the child that directs them inward becomes a neurotic. Cognitive Development Theory: According to this approach, criminal behavior results from the way in which people organize their thoughts about morality and the law. In 1958, Lawrence Kohlberg, a developmental psychologist, formulated a theory concerning the development of moral reasoning. He posited that there are three levels of moral reasoning, each consisting of two stages. During middle childhood, children are at the first level of moral development. At this level, the preconventional level, moral reasoning is based on obedience and avoiding punishment. The second level, the conventionallevel of moral development, is reached at the end of middle childhood. The moral reasoning of individuals at this level is based on the expectations that their family and significant others have for them. Kohlberg found that the transition to the third level, the postconventional level of moral development, usually occurs during early adulthood. At this level, individuals are able to 18
go beyond social conventions. They value the laws of the social system; however, they are open to acting as agents of change to improve the existing law and order. People who do not progress through the stages may become arrested in their moral development, and consequently become delinquents. Learning Theory : Learning theory is based upon the principles of behavioral psychology. Behavioral psychology posits that a person's behavior is learned and maintained by its consequences, or reward value. These consequences may be external reinforcement that occurs as a direct result of their behavior (e.g. money, social status, and goods), vicarious reinforcement that occurs by observing the behavior of others (e.g. observing others who are being reinforced as a result of their behavior), and self-regulatory mechanisms (e.g. people responding to their behavior). According to learning theorists, deviant behavior can be eliminated or modified by taking away the reward value of the behavior. Hans J. Eysenck, a psychologist that related principles of behavioral psychology to biology, postulated that by way of classical conditioning, operant conditioning, and modeling people learn moral preferences. Classical conditioning refers to the learning process that occurs as a result of pairing a reliable stimulus with a response. Eysenck believes, for example, that over time a child who is consistently punished for inappropriate behavior will develop an unpleasant physiological and emotional response whenever they consider committing the inappropriate behavior. The anxiety and guilt that arise from this conditioning process result in the development of a conscience. He hypothesizes, however, that there is wide variability among people in their physiological processes, which either increase or decrease their susceptibility to conditioning and adequate socialization.
Crimes & Criminal Laws in Bangladesh
The Indian Penal Code, 1860 together with the introduction of a professional police organisation under the Police Act of 1861 (Act V/1861), laid the foundation of clear and precise definitions of all categories of crimes and standardisation of crime statistics at both provincial and district levels. Significant social changes with growth of industrialisation, urbanisation and communication left an indelible imprint on the social history and the crime scene of Bengal. Prior to the introduction of the Police Act of 1861 in Bengal there was no uniformity in crime reporting by the district magistrates who were also district police chiefs. After the introduction of the Indian Penal Code (IPC) on 1 January 1862, cognizable crimes have generally been categorised under the following six classes in annual police administration reports on the basis of the IPC classification. Class I embraced offences against the state, public tranquility, safety and justice (e.g. offences relating to coins, stamps, government promissory notes, rioting, unlawful assembly etc.) whereas class II included serious offences against a person (e.g. murder, rape, grievous hurt, kidnapping, abduction etc.). Class Ill comprised serious offences against person and property or against property only. (e.g. dacoity, robbery, burglary/lurking house trespass, house breaking etc.) and class IV meant minor violence (wrongful restraint, rash act causing hurt etc.) against a person. Minor offences against property (e.g. theft, criminal breach of trust, cheating etc.) were categorised as class V. Offences other than the above (e.g. public nuisance, offences under local and special laws declared to be cognizable) came under class VI. At the regional level, property offences per population showed considerable variations between 1872 and 1901. From the early 1890s, dhaka emerged in a big way in the property crime scene of Bengal, and by 1912 it contributed the largest number of property offences. Substantial growth in urbanization, immigration, industrialization, railway and road communications took place in Bengal during 1872-1912. According to some sociological and criminological viewpoints, such growth factors bring about a degree of anomie, loosing of social control and intensification of social or class conflicts. The natural outcome is therefore, an escalating level of violence.
Piracy was quite common in the rivers of Bengal. The Thagi and Dakati Department in Bengal extended its operations to Bengal's rivers in 1836 and found them infested by bands of fresh-water pirates having habits similar to those of the land thugs. According to an inquiry, the worst affected areas were the brahmaputra river between chilmari in rangpur and Goalpara in Assam, the dhaleshwari river from tangail to manikganj in mymensingh and Dhaka, the padma river in the neighbourhood of Goalanda, faridpur and madaripur and the intricate waterways in the neighbourhood of barisal. In addition to mallahs (boatman), themselves, a large number of bandits from Bihar were also found involved in river crimes. Some of them were allegedly engaged in smuggling opium between Uttar Pradesh (India) and chittagong. Malpractice in the course of trade and commerce and professional and public services have existed from time immemorial in all societies. Forms of malpractice, often leading to criminal activities in India included bribery, corruption, counterfeiting of coins, forgery, preparation of fraudulent deeds, cheating, adulteration of foodstuffs, manipulation of weights and measures and breach of trust by public servants, bankers and merchants. Crime in Bengal was not a phenomenon limited to any specific religious community. Neither has it been committed only by people belonging to any particular region. Available information suggests that a number of identifiable criminal groups did have a peripheral status from the socio-religious point of view. The predatory bedeys, many of whom were involved in crime in the jessore district, were half Hindu and half Muslims. People of the Hinduised tribes (Bhumij, Lodha) and of the Hindu lower castes (Bagdi, Pode, Kaora) had records of committing crimes of different scale. Similarly, two widely known Muslim criminal groups having inferior social ranking were sandars and Tunia Musalmans. This however, does not mean that the people of higher social ranks and economic status did not commit crimes. Criminal activities of the Hindu caste groups are often associated with the fact that they are worshippers of the goddess Kali. Polygamy and divorce, considered as crimes in traditional Indian society, were common among the Bhumij. The Bagdis, Podes, Bhumijes and Lodhas gained notoriety as dacoits and robbers operating on land. Sandars, as well as some Namasudra and Gayen groups 21
specialised in river dacoity. Not all groups indulged in violence. The Bediyas, Dhekaras and Tunia Muslalmans shunned aggressiveness. The Bhumij dacoits, on the other hand, were feared for their violent behaviour. Crime often takes shape of organized activities like well-executed robberies, large-scale smuggling, art-frauds, the drugging of racehorses and so forth. Gangs of adult criminals are often active in times of political and social upheaval. The common forms of criminal activities in Bangladesh are bribery, exploitation of laborers, violation of traffic rules, rape, acid throwing, physical abuse of women, adoption of unfair means in examinations, theft, burglary, robbery, smuggling, cheating, defalcation, forgery, violence etc. Crime in Bangladesh is also committed by many who pretend to be high-ranking officials or army personnel and offer spurious awards and contracts. Many others lure youths to the film world, promising them work as star actors or actresses, or pretend to be religious healers, manpower recruitment agents, business representatives, etc and thereby defraud innocent people. One of the classic techniques of burglary in rural Bangladesh is entering a house through a hole in the wall or the floor of a room deep at night, collection of belongings, and then making a gateway through the door or windows. This kind of theft is common in houses made of mud or bamboo. Stealing of cows is also a common crime reported in rural areas. Pickpocketing in railway stations, river ports, markets, or busy places like banks or offices is also a crime of frequent occurrence. Cases of robbery are reported almost everyday from different parts of Bangladesh. Crimes are endemic to rural and over populated Bangladesh, where cultivable land is scarce. Land transactions do not take place in a secure environment. Legal process like the dewani case for obtaining land rights is time consuming and expensive. Disputes over land ownership often lead to nasty conflicts and even armed clashes. Clashes take place in harvesting crops from disputed lands. Stealing of paddy or other crops from fields is also common. Dispute over ownership of aluvions, especially when floodwater is released from the land, is a regular phenomenon in the southern portion of the country. People involved in these disputes and conflicts often result to courts and many are
convicted. Such people do not get enough opportunity of rehabilitation in society. The community also develops a practice of avoiding such people as criminals or troublemakers. The ultimate result is the confirmation of these people in criminal professions. Since legal wrangles result in huge expenses, often managed through debts and repayment of the same, the affected person faces no other alternative than to get involved in criminal activities. In Bangladesh, just as in all other countries, finger prints, foot prints, hand writing, identification of fire arms, blood stains, blood group test, seminal stains, hair, textiles, invisible writing, photograph etc are used for detection of crime. However, available information suggests that only three percent of those involved in criminal activities in a year receive punishment in the country. This encourages individuals and organised groups to commit crime. Corruption and insincerity of law-enforcing agencies and involvement of village tauts or political leaders and other influential people in protecting criminals discourage victims from taking action against criminals. Even if criminals are taken into police custody and cases are filed against them, the trial process continues for too long. As is always the case, justice delayed is justice denied. Courts often fail to reach proper verdict in absence of witness or evidence, often under threats from the accused. In many situations, criminals avoid punishment because the charge cannot be framed properly under existing laws. Though attempts to contain crime began long ago and took different indigenous forms, it was only in 1944 that the British government created a separate department named 'Enforcement Department' to combat crimes. The first corruption act adopted in Pakistan was the Prevention of Corruption Act 1947 and was applicable for all citizens of the country. The government of Bangladesh established a separate directorate named as the Bureau of Anti-Corruption (BAC) by a law in 1977. Important laws and rules for combating corruption in the country include the Prevention of Corruption Act 1947. This was amended in 1958, 1960, 1962 and 1973; the Criminal Law Amendment Act 1958 was further amended in 1967, 1978, 1979, and 1987.
Recent developments in the field of psychology, sociology and other behavioral sciences have brought in their wake a corresponding change in the criminological trends and opened new visits in comprehending of human behavior. It has been generally accepted that crime is a product of various factors, which cannot always be explained on the basis of hedonistic calculus of pain and pleasure as pronounced by Bentham. There is need to control criminologenic influences by improvised correctional techniques, so as to bring out resocialisation and reformation of the offenders. While planning out a strategy for crime prevention, it must be born in mind that, human nature is complex and no one can possibly comprehend it fully. It has how over, been realized that all human do not respond in a similar manner to a given situation, because of their varying socio-economic, psychological and environmental ramifications. It therefore, follows that all the criminals should not be treated alike. The control of crime to be successfully tackled needs to be addressed from all sides. Mere policing would not yield the desired results unless followed by community involvement, support from victims and changing deep rooted attitudes like relative deprivation by providing jobs, housing and other community facilities to the deprived sections of the society. All these factors have a bearing on criminality and, therefore need to be taken into consideration for the prevention of crime and criminals. With the socio-political changes due to advent of Mughol, English and Pakistni rule in this country our society witnessed some radical changes. Due to the impact of western culture, the past traditions and ethical values of life have lost their significance and there been a drift into excessive materialism which has created an atmosphere conducive to multiplicity of crimes. Our criminal policy penal laws, and procedural laws are all modeled on British criminal justice system. It is therefore difficult to link up the ancient penal laws with the present situations of crime and procedure. So therefore, the functioning of the criminal justice system needs total reforms to achieve its goals and objectives: to make the society safer for its people. 24
References : Wilson, J.Q. & Herrnstein, R. (1985). Crime and Human Nature. New York: Simon and Schuster. Wrightsman, L.S., Nietzel, M.T., & Fortune, W.H. (1994). Psychology and the Legal System. Belmont:Brooks Cole Publishing Company. Bandura, Albert (1973). Aggression: A social learning analysis. Engle-wood Cliffs, NJ: Prentice Hall. Eysenck, H.J. (1964). Crime and Personality. Boston: Houghton Mifflin. Eysenck, H.J., & Gudjonsson, G.H. (1989) The causes and cures of criminality. Contemporary Psychology, 36, 575-577. Freud, S. (1961). The Complete Works of Sigmund Freud (Vol. 19). London: Hogarth. Cole, M. & Cole S. R. (1993). The development of children. New York: W.H. Freeman and Company. Kohlberg, L. (1976). Moral stages and moralization: The cognitivedevelopmental approach to socialization. In J. Lickona, Moral development behavior: Theory, research, and social issues. New York: Harper & Row. Criminology and Penology by Prof. N.V. Paranjape Law of crimes by Ratanlal Lecture on penal Code by L. Kabir
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