Class Notes on Criminal

Law – I (1st Sem / 3 year

LL.B)
General Principles of
Crime
Nature of a crime
o Definition: According
to Blackstone’s, Crime is
defined as a violation of
public rights and duties
due to the whole
community, considered as
a
community. Blackstone
does not intend to suggest
that crimes violates
no other rights besides
public ones, obviously
every theft violates some
private right of property.
It can be expressed more
clearly as “A crime is a
violation of a right,
considered in reference to
the evil tendency of such
violation as regards the
community at large.”
o Tort and Crime:
o Crime in the primitive
state:
o Crimes the creation of
Government policy:
o Distinction between
Crime and other wrongs
under common Law:
o Crime and morality
distinction:
o Circumstances when
morality amounts to
crime:
o State’s responsibility to
detect, control and punish
crime:
Characteristics of a crime
 Harm
 Brought about by
Human Conduct

 Definition:  According to Blackstone’s, Crime is defined as a
violation of public rights and duties due to the whole community,
considered as a community. Blackstone does not intend to
suggest that crimes violates no other rights besides public ones,
obviously every theft violates some private right of property. It can
be expressed more clearly as “A crime is a violation of a right,
considered in reference to the evil tendency of such violation as
regards the community at large.”
 Tort and Crime:
 Crime in the primitive state:
 Crimes the creation of Government policy:
 Distinction between Crime and other wrongs under common Law :
 Crime and morality distinction:
 Circumstances when morality amounts to crime:
 State’s responsibility to detect, control and punish crime :

Characteristics of a crime
  Harm
 Brought about by Human Conduct
 Sovereign state desires to prevent it
 Measure for prevention includes threat of Punishment
 Special proceedings employed to decide whether the accused
has caused the harm and inflicting punishment

The place of Criminal Law in Criminal Science

Three branches of Criminal Science:

 Criminology: It deals with the causes of Crime – both Biological

and Social
 Criminal Policy: Studies the measures to limit the harmful
conduct, Takes measures by setting up social organizations to
prevent harmful activities and lays down the principles by which
harms are classed as crimes and how criminals are to be treated
 Criminal law: What conduct is considered as tort and what is
Crime, Prescribes the punishment. It is an instrument used to
implement the Criminal policy

Principles of criminal liability

The period of Strict Liability
Strict liability crimes are those in which the defendant is held liable for a
criminal offense he committed, even if mens rea is absent. Though the
defendant did not intend any harm by his actions and was completely
unaware that he was committing an illegal act, the doctrine of strict
liability holds him liable for the criminal offenses committed.

Most cases of strict liaiblity are minor infractions and misdemeanors, not
nearly as serious as felonies, but still warranting heavy fines and up to a
year in jail. Examples of minor offenses for which violators are held strictly
liable are parking violations, speeding unknowingly, selling alcohol to
minors and, in some jurisdictions, employing people under the age of
fourteen.

Mental Element in Criminal Liability

To constitute a crime and subject the offendor to a liability to punishment,
i.e., to produce legal criminal “guilt”, a mental as well as a physical element
is necessary. Thus, to use a maxim “Actus non facit reum mens sit rea“. The
act does not make a person guilty unless the mind is also guilty.
It is a well known principle of natural justice meaning no person could be
punished in a proceeding of criminal nature unless it can be shown that he
had a guilty mind.

Accordingly, every crime involves:

1. A particular physical condition – a vicious conduct

2. A particular mental condition – a vicious intention

ACTUS REUS
Actus – A physical result of human conduct and Reus – criminal policy that
prohibits and seek to prevent its occurrence by imposing penalty for its
commission. Thus, Actus Reus means “such result of human conduct as the
law seeks to prevent”

For example, A repeatedly stabbed B and thereby caused serious injury to

his heart and lungs because of this injury B died. A stabbed B with an
intention to cause death of B. Here A’s act of repeated stabbing and
injuring of B is conduct, the result of such conduct is the death of B

Causation: Harm is an event and event is the product of plurality of

factors. There are several causes of one event. So, it can be reasonably
said that the event is caused by one of these factors if it would not have
happened without that factor. For example, a man can be said to have
caused the actus reus of a crime if that actus would not have occurred
without his participation in what was done.

Mens Rea
One of the main characteristic of our legal system is that the individual’s
liability to punishment for crimes depends, among other things, on certain
mental conditions. The liability of conviction of an individual depends not
only on his having done some outward acts which the law forbids, but on
his having done them in a certain frame of mind or with a certain will. Mens
Rea is the mental process of a person. At the time, when he was engaged
in the activity which resulted in the deed. It is a legally reprehensible state
of mind.

It means a mental state, in which a person deliberately violates a law.

Thus, mens rea means intention to do the prohibited act.
Development of Mens Rea
In the earliest time it was the fundamental presumption that a man in every
case
intended to do what he has done. The English criminal law began with strict
criminal liability, and there was no clear distinction between the Tort and
crime.
Therefore the mental attitude of a person was an irrelevant consideration in
so far as trial and punishment was concerned.

But later on bodily punishment came as a substitute of the payment of

damag
then the importance of mens rea or the mental attitude of a person, at the
time of
commission of crime was realized. With the passage of time requirement of
mens rea as an essential element of a crime has firmly taken in its roots.

Mens rea in its root

Now it is the combination of act ( actus rea) and intent mens rea which
makes a crime. And the maxim – Actus non facit reum nisi mens sit
rea means act alone does not make a man guilty unless his intentions were
so. It is a well known principle of natural justice. There can be no crime
large or small without any evil intent. The responsibility in crimes must
depend on the doing of a willed or voluntary act and a particular
intent behind that act. Most conscious and voluntary acts are directed
towards result or consequence. When one acts to produce a particular
consequence he is said to do that act with that intention.

Intention + Act + attempt = Offence

Exceptions to mens rea

Crime = Voluntary act + foresight of the consequences

Acts under compulsion

If the consequence not looked for the act may be voluntarily but not
intentional. For any criminal liability there must be a voluntary act, this
preposition drive from the maxim – Actus me invite factus non est mens
actus which means and act done by me against my will is not my act. This
maxim support the doctrine of Mens Rea – for no person can be held liable
for an act done under the fear or compulsion.
For example:

A holds B and compels him at gun point to open the lock of C’s house.
Here B’s act not a willed or intentional act.

The basic requirement of the principle of Mens Rea is that accused must
have been aware of all those elements in his act which make it the crime
with which he charged.

Case Laws:

Sankaran Sukumaran V/s Krishnan Saraswathi (1984 Cr Lj 317) SC

held that mens rea is an essential ingredient of the offence under section
494 (bigamy), where the second marriage has been entered in a bonafide
belief that the first marriage was not subsisting, no offence under this
section committed.

C. Veerudu v. State of Andhra Pradesh, SC held that under section 498

A, cruelty means “willful conduct”. Willful conduct includes mens rea.

Conclusion:
In modern statutory offenses, the maxim has no longer applicable and the
statutes are to be regarded as themselves prescribing the mental element
which is pre-requisite to a conviction. So mens rea is an essential element
of crime, in every penal statue unless the same either expressly or by
necessary implication is ruled out by the statues.

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As Indian constitution is wedded to Democracy and Rule of Law, the concept of free and fair
trial is a constitutional commitment for which the cardinal principle of Criminal Law revolves
around the Natural Justice wherein, even the accused or guilty person is treated with a
human treatment. The law of the land requires the prosecution to stand at its own legs and
to prove the guilt of the accused beyond the shadow of a reasonable doubt.

The accused persons are also granted certain rights, the most basic of which are found in
the Indian Constitution. An accused has certain rights during the course of any investigation;
enquiry or trial of offence with which he is charged, and he should be protected against
arbitrary or illegal arrest.

Under Constitutional Law

Our constitution is based on fundamental that Let Hundreds Go Unpunished, But Never
Punish An Innocent Person Right to get a fair representation in a criminal procedure is a
facet of Right to Equality (Article 14). Article 20 says that "no person shall be convicted of any
offence except for violation of a law in force at the time of the commission of the act
charged as an offence, nor be subjected to a penalty greater than that which might have
been inflicted under the law in force at the time of the commission of the offence. Thus,
accused is given fair equality as par with other citizen.

Also by the judicial voice, a wider ambit has been given to right to life and liberty and thus
accused are given a human treatment in jails fulfilling reformative approach (Article 21).
Article 22 talks that No person shall be detained in custody without being informed, as soon
as may be, of the grounds for such arrest nor shall he be denied the right to consult and to
be defended by, legal practitioner of his choice. The exception to the right is that it is not to
be applied on alien. Thereby, these rights under constitution are inherent rights and cannot
be altered or changed.

Under Criminal Law

 Presumption of Innocence:

In Blackstone's famous words, it is better that ten guilty persons escape than that
one innocent suffer. The essence of criminal trial lies in that the accused is to be
presume innocent until a charge is proved against him without any reasonable
doubt.
 

 Right To Know The Grounds of Arrest:

As per Section 50(1) of Cr.P.C., where a person arrested without warrant is entitled to
know the full particulars of offence for which he is being arrested and where a
person is arrested with warrant, he must be notified the particulars of such warrant,
or even show such warrant if needed. Sec. 75 of Cr.P.C.
 

 Right to have Bail:

Any person who is arrested without a warrant and is accused of a bailable offence
has to be informed by the police officer that he is entitled to be released on bail on
payment of the surety amount.
 

 Right to Be Taken before a Magistrate without Delay:

Irrespective of the fact, that whether the arrest was made with or without a warrant,
the person who is making such arrest has to bring the arrested person before a
judicial officer without any unnecessary delay. By Sec 56 and 76 of the code, an
accused has to be produced before a magistrate within the 24 hrs.
 
 Right to free, fair and speedy trial:

As justice delayed is justice denied, the concept of speedy and expeditious trial was
introduced by which the accused person is given fair and impartial justice quickly.
 

 Right to Consult a Legal Practitioner:

This has been enshrined as a fundamental right in Article 22(1) of the Constitution of
India, which cannot be denied in any case. Section 50(3) of the Code also lays down
that the person against whom proceedings are initiated has a right to be defended
by a pleader of his choice.
 

 Right of Free Legal Aid:

A duty is imposed on all magistrates and courts to inform the indigent accused of his
right to get free legal aid. It is clear that unless refused, failure to provide free legal
aid to an indigent accused would vitiate the trial entailing setting aside of the
conviction and sentence.
 

 Right to Be Examined by a Medical Practitioner:

Section 54 of Cr.P.C. enumerates this right. If requested by the arrested person so to

do direct the examination of the body of such person by a registered medical
practitioner unless the Magistrate considers that the request is made for the
purpose of vexation or delay or for defeating the ends of justice.
 

 Right to privacy and protection against unlawful searches:

The police officials cannot violate the privacy of the accused on a mere presumption
of an offence. The property of an accused cannot be searched by the police without
a search warrant.
 

 Right to be present during trial:

Section 273 of the Code provides that all evidence and statements must be recorded
in presence of the accused or his criminal lawyer.
 

 Right to get Copies of Documents:

The accused has the right to receive copies of all the documents filed by the
prosecutor in relation to the case.
 
  Right to be present at the trial:

The accused person has the right to be present during his trial and have testimony
presented in front of him.
 

 Right to cross-examination:

The accused has the right to be cross-examined by the prosecutor to prove his
innocence.
 

 Right to Appeal:

The rights of arrested persons include the right to file an appeal against his
conviction in a higher court.
 

 Right to Humane Treatment in Prison:

The accused has a right to have all his human rights when in prison and be subjected
to humane treatment by the prison authorities.

Cases
In, Nandini Sathpathy v. P.L.Dani 1978 SCR (3) 608,wherein it was held that no one can
forcibly extract statements from the accused and that the accused has the right to keep
silent during the course of interrogation (investigation).

In, D.K. Basu v. State of W.B (1997) 1 SCC 416,the Supreme Court, in this case, issued some
guidelines which were required to be mandatorily followed in all cases of arrest or detention
which include, the arresting authority should bear accurate, visible, and clear identification
along with their name tags with their designation, the memo be signed by the arrestee and
family member, the family or the friend must be told about the arrest of the accused, The
arrestee may be permitted to meet his lawyer during interrogation, though not throughout
the interrogation and many other.
Theories of Punishment ome of the major questions which are engaging the attention of modem
penologists are whether the traditional forms of punishment should remain the exclusive or primary
weapons in restraining criminal behaviour or should be supplemented and even replaced by a much
more flexible or diversified combination of measures of treatment of a reformative, curative and
protective nature. And if so, to which categories of offenders should these improvised measures be
applicable and how should their choice in particular cases be determined ? And finally, how could
the reintegration of offenders into society be placed so as to efface the penal stigma and to cut off
the supply of potential recidivists at its source ?' Punishing the offenders is a primary function of all
civil States. The incidence of crime and its retribution has always been an unending fascination for
human mind. However, during the last two hundred years, the practice of punishment and public
opinion concerning it have been profoundly modified due to the rapidly changing social values and
sentiments of the people. The crucial problem today is whether a criminal is to be regarded by
society as a nuisance to be abated or an enemy to be crushed or a patient to be treated or a
refractory child to be disciplined ? Or should he be regarded as none of these things but simply be
punished to show to others that anti-social conduct does not finally pay. It is in this perspective that
the problem of crime, criminal and punishment is engaging the attention of criminologist and
penologists all around the world. A 'crime' has been defined by Salmcnd as an act deemed by law to
be harmful for society as a whole although its immediate victim may be an individual. Thus "a
murderer injures primarily a particular victim, but its blatant disregard of human life puts it beyond a
matter of mere compensation between the murderer and the victim's family."362 Those who
commit such acts, if convicted, are punished by the State. It is therefore, evident that the object of
criminal justice is to protect the society against criminals by punishing them under the existing penal
law. Thus punishment can be used as a method of reducing the incidence of criminal behaviour
either by deterring the potential offenders or by incapacitating and preventing them from repeating
the offence or by reforming them into law-abiding citizens. It is this principle which underlies the
doctrines concerning the desirability and objectives of punishment. Theories of punishment,
therefore, contain generally policies regarding handling of crime and criminals. There are four
generally accepted theories of punishment, namely, deterrent, retributive, preventive and
362Salmond : Jurisprudence (12th Ed.) p. 92. S 242 Criminology and Penology reformative. It must,
however, be noted that these theories are not mutually exclusive and each of them plays an
important role in dealing with potential offenders. Concept of Punishment : Before dealing with the
theories of punishment, it would be pertinent to explain the concept of punishment. Sir Walter
Moberly, while accepting the definition of punishment as given by Grotious, suggests that
punishment presupposes that :— 1. what is inflicted is an ill, that is something unpleasant; 2. it is a
sequel to some act which is disapproved by authority; 3. there is some correspondence between the
punishment and the act which has evoked it; 4. punishment is inflicted, that it is imposed by
someone's voluntary act; 5. punishment is inflicted upon the criminal, or upon someone who is
supposed to be answerable for him and for his wrong doings. Justification for Punishment There are
valid reasons for justification of punishment to offenders who are convicted for an offence. They
may briefly be stated as follows :— 1. Deterrence.—Punishment dissuades a person from future
wrong doing by making punishment severe enough so that the benefit or pleasure derived from the
offence is outweighed by the pain and probability of punishment. 2. Incapacitation.—Incarceration
has the effect of confining the prisoner and physically incapacitating him from committing a crime.
The most dangerous criminals may be sentenced to imprisonment for life or even a sentence of
death may be invoked for heinous and brutal crimes such as murder etc. 3. Restoration.—For some
minor offences punishment may in the form of restoration such as fines or payment of
compensation to the victims of crime or his/her relatives or families. 4. Rehabilitation.—Some
punishments are directed to reform the offender and ensure his rehabilitation as a law abiding
citizen. It aims at bringing about a change in the offender's attitude to make him socially acceptable.
Theories of Punishment : To punish criminals is a recognised function of all civilised States for
centuries. But with the changing patterns of modem societies, the approach of penologists towards
punishment has also undergone a radical change. The penologists today are concerned with crucial
problem as to the end of punishment and its place in penal policy. Though opinions have always
differed as regards punishment of offenders varying from age-old traditionalism to recent
modernism, broadly speaking four types of views can be distinctly found to prevail. Modem
penologists prefer to call them 'theories of punishment'. The line of demarcation between these
theories are, however, so then that they cannot be completely separated from each other. The
eighteenth century utilitarianism formulated a social policy which provided a blue print for working
out penal reforms and legislation in England during the Benthamite era. The major theories of
punishment laid down during that person are relevant even to this day excepting the theory of
retribution, which stands completely discarded in modem penal programmes. These theories are
briefly stated as follows : Theories of Punishment 243 1. Barnes & Teeters ; New Horizons in
Criminology, (3rd Ed.) p. 216. Deterrent Theory Earlier modes of punishment were, by and large,
deterrent in nature. This kind of punishment presupposes infliction of severe penalties on offenders
with a view to deterring them from committing crime. The founder of this theory, Jermey Bentham,
based his theory of determine on the principle of hedonism which said that a man would be
deterred from committing a crime if the punishment applied was swift, certain and severe. This
theory considers punishment as an evil, but is necessary to maintain order in the society. The
deterrent theory also seeks to create some kind of fear in the mind of others by providing adequate
penalty and exemplary punishment to offenders which keeps them away from criminality. Thus the
rigour of penal discipline acts as a sufficient warning to offenders as also others. Therefore,
deterrence is undoubtedly one of the effective policies which almost every penal system accepts
despite the fact that it invariably fails in its practical application. Deterrence, as a measure of
punishment particularly fails in case of hardened criminals because the severity of punishment
hardly has any effect on them. It also fails to deter ordinary criminals because many crimes are
committed on the spur of the moment without any prior intention or design. The futility of deterrent
punishment is evinced from the fact that quite a large number of hardened criminals return to
prison soon after their release. They prefer to remain in prison rather than leading a free life in
society. Thus the object underlying deterrent punishment is unquestionably defeated. This view
finds support from the fact that when capital punishment was being publicly awarded by hanging
the person to death in public places, many persons committed crimes of pick-pocketing, theft,
assault or even murder in those men-packed gatherings despite the ghastly scene. Suffice it to say
that the doctrine concerning deterrent punishment has been closely associated with the primitive
theories of crime and criminal responsibility. In earlier times, crime was attributed to the influence
of 'evil spirit' or 'free-will' of the offender. So the society preferred severe and deterrent punishment
for the offender for his act of voluntary perversity which was believed to be a challenge to God or
religion. 1 The punishment ought to be a terror to evil-doers and an aweful warning to all others
who might be tempted to imitate them. This contention finds support in Bentham's observation,
who said :— "General prevention ought to be the chief end of punishment.... An unpunished crime
leaves the path of crime open, not only _____ to the same delinquent but also to all those who may
have 244 Criminology and Penology some motives and opportunities for entering upon it ..................
we perceive that punishment inflicted on the individual becomes source of security for all .......
Punishment is not to be regarded as an act of wrath or vengeance against a guilty individual who has
given way to mischievous inclinations, but as an indispensable sacrifice to the society" Bentham,
however, believed that offenders must be provided an opportunity for reformation by the process of
rehabilitation. From this point of view, his theory may be considered forward looking as it was more
concerned with the consequences of punishment rather than the wrong done, which being a post,
cannot be altered. 363 Retributive Theory : While deterrent theory considered punishment as a
means of attaining social security, the retributive theory treated it as an end in itself. It was
essentially based on retributive justice which suggests that evil should be returned for evil364
without any regard to consequences. The supporters of this view did not treat punishment as an
instrument for securing public welfare. The theory therefore, underlined the idea of vengeance or
revenge. Thus the pain to be inflicted on the offender by way of punishment was to outweigh the
pleasure derived by him from the crime. In other words, retributive theory suggested that
punishment is an expression of society's disapprobation for offender's criminal act. Supporting the
theory of retribution Emanuel Kant observed : "Judicial punishment can never be used merely as a
means to promote some other good for the criminal himself or civil society, instead, it must in all
cases be imposed on him only on the ground that he has committed a crime; for a human being can
never be manipulated merely as a means to the purposes of someone else." According to him,
punishment is an end in itself therefore, retribution is a natural justification because society thinks
that a bad man should inevitably be punished and good ought to be rewarded. Commenting on
retributive theory Sir Walter Moberly observed that the theory of retribution is based on the view
that punishment is a particular application of the general principle of justice, that men should be
given their due. 365 Punishment serves to express and to satisfy the righteous indignation which a
healthy minded community regards transgression. As such, it is sometimes an end in itself. 366 It
must be stated that the theory of retribution has its origin in the crude animal instinct of individual
or group to retaliate when hurt. The modem view, however, does not favour this contention
because it is neither wise nor desirable. On the contrary, it is generally condemned as vindictive
approach to the offender. Retributive theory is closely associated with the notion of expiation which
means blotting out the guilt by suffering an appropriate punishment. It is this consideration which
underlies the mathematical equation of crime, namely, guilt plus punishment is equal to innocence.
Most penologists refuse to subscribe to the contention that offenders should be punished with a
view to making them pay their dues. The reason being that no sooner an offender completes his
term of sentence, he thinks that his guilt is washed off and 363 Chaturvedi K.C. : Penology &
Correctional Administration, (2006) p. 26. 364 Sen. P, K. : Penology Old and New (1943), p. 27. 365
Sir Walter Moberly : The Ethics of Punishment (1968 Ed.) p. 14. 366 Ibid. Theories of Punishment 245
he is free to indulge in criminality again. Hegal opposed the theory of retribution and observed that
it is the manifestation of revenge for an injury. To quote him, he said, "You hurt me so I will hurt you.
Indeed that is the literal meaning of retribution. And if I cannot hurt you myself, I demand that you
should be hurt by others. The desire to make the offender suffer, not because it is needed so that
the guilt is purged, not also because suffering might deter him from future crime, but simply because
it is felt that he deserves to suffer, is the essence of retribution."1 It must be stated that Sir James
Stephen defended the doctrine of retribution on the ground that "criminals deserved to be hated
and the punishment should be so contrived as to give expression to that hatred, and to justify by
gratifying a healthy natural sentiment."2 However, the modem penology discards retribution in the
sense of vengeance, but in the sense of reprobation it must always be an essential element in any
form of punishment. Preventive Theory Preventive philosophy .of punishment is based on the
proposition 'not to avenge crime but to prevent it'. It presupposes that need for punishment of
crime arises simply out of social necessities. In punishing a criminal, the community protects itself
against anti-social acts which endanger social order in general or person or property of its members.
In order to present preventive theory in its proper perspective, it would be worthwhile to quote
Fichte who observed, "the end of all penal laws is that they are not to be applied". Giving an
illustration he continued, "when a land owner puts up a notice 'trespassers will be prosecuted' ; he
does not want an actual trespasser and to have the trouble and expense of setting the law into
motion against him. He hopes that the threat will render any such action unnecessary, his aim is not
to punish trespass but to prevent it. If trespass still takes place, he undertakes prosecution. Thus, the
instrument or deterrence which he devised originally consisted in the general threat and not in
particular convictions". The real object of the penal law therefore, is to make the threat generally
known rather than putting it occasionally into execution. This indeed makes the preventive theory
realistic and gives it humane touch. It is effective for 1. Studies in Hegalian Cosmology p. 133, cited
by Ewing AC. The Morality of Punishment pp. 73- 75. 2. Sir James Stephen : History of Criminal Law
of England, p. 82. discouraging anti-social conduct and a better alternative to deterrence or
retribution, which now stand rejected as methods of dealing with crime and criminals. In England,
utilitarians like Bentham, Stuart Mill and Austin supported preventive theory' because of its
humanising influence on criminal law. They asserted that it is the certainty of law and not its
severity, which has a real effect on offenders. As an off-shoot of preventive view regarding crime and
criminals, the development of prison institution gained momentum. The preventive theory seeks to
prevent the recurrance of crime by incapacitating the offenders. It suggests that prisonisation is the
best mode of crime prevention as it seeks to eliminate offenders from society thus disabling them
from repeating crime. The supporters of preventive 246 Criminology and Penology philosophy
recognise imprisonment as the best mode of punishment because it serves as an effective deterrent
and a useful preventive measure. It pre-supposes some kind of physical restraint on offenders.
According to the supporters of this theory, murderers are hanged not merely to deter others from
meeting similar end, but to eliminate such dreadful offenders from society. Reformative Theory With
the passage of time, developments in the field of criminal science brought about a radical change in
criminological thinking. There was a fresh approach to the problem of crime and criminals.
Individualised treatment became the cardinal principle for reformation of offenders. This view found
expression in the reformative theory of punishment. As against deterrent, retributive and preventive
justice, the reformative approach to punishment seeks to bring about a change in the attitude of
offender so as to rehabilitate him as a law abiding member of society. Punishment is used as a
measure to reclaim the offender and not to torture or harass him. Reformative theory condemns all
kinds of corporal punishments. The major emphasis of the reformist movement is rehabilitation of
inmates in peno-correctional institutions so that they are transformed into law-abiding citizens.
These correctional institutions have either maximum or minimum security arrangements. The
reformists advocate human treatment of inmates inside the prison institutions. They also suggest
that prisoners should be properly trained to adjust themselves to free life in society after their
release from the institution. The agencies such as parole and probation are recommended as the
best measures to reclaim offenders to society as reformed persons. The reformative view of
penology suggests that punishment is only justiciable if it looks to the future and not to the past. "It
should not be regarded as settling an old account but rather as opening a new one". Thus the
supporters of this view justify prisonisation not solely for the purpose of isolating criminals and
eliminating them from society but to bring about a change in their mental outlook through effective
measures of reformation during the term of their sentence. Undoubtedly, modem penologists
reaffirm their faith in reformative justice but they strongly feel that it should not be stretched too
far. The reformative methods have proved useful in cases of juvenile delinquents, women and the
first offenders. Sex psychopaths also seem to respond favourably to the individualised treatment
model of punishment. However, the recidivists and hardened criminals do not respond favourably to
the reformist ideology. It is for this reason that Salmond has observed that though general
substitution of reformation for deterrence may seem disastrous, it is necessary in certain cases
specially for abnormals and degenerates who have diminished responsibility. 367 It therefore,
follows that punishment should not be regarded as an end in itself but only as a means, the end
being the social security and rehabilitation of the offender in society. Some penologists have
denounced 'rehabilitative ideal' or the 'reformist ideology' underlying individualised treatment
model because in practice they are more punitive, unjust and inhumane than retribution or
deterrence. Writing about the condition of prisons in Russia and France, Peter Kropotkin observed,
"prisons are seen as symbols of our hypocrisy regarding rehabilitation, our intolerance for deviants,
or our refusal to deal with the root causes of crime such as poverty, discrimination, 367 Salmond :
Jurisprudence (12th Ed., 1966), p. 27. Theories of Punishment 247 unemployment, ignorance, over-
crowding" 368 and so on. Yet another argument which is often advanced against reformative
treatment is that there is no punishment involved in it in terms of some sort of pain and therefore, it
cannot be regarded as punishment in true sense of the term. But it must be pointed out that though
reformative treatment involves benevolent justice, yet the detention of the offender in prison or any
other reformative institution for his reformation or readjustment is in itself a punishment because of
the mental pain which he suffers from the deprivation of his liberty during the period he is so
institutionalised. Therefore, it is erroneous to think that institutional detention for reformation is not
a form of punishment. In fact, surveillance and close supervision is itself punitive though it involves
no physical pain or suffering. The authors of an American study also criticised reformist ideology
stating that, "it never commended more than lip service from most of its more powerful adherents.
Prison administrators who embraced the rehabilitative ideal, have done so because it increased their
power over inmates".369 It is a known fact that punishment always carries with it a stigma inasmuch
as it fetters the normal liberty of individual. It has become an integral part of law enforcement for
securing social control. Punishment is inevitable for recidivists who are habitual law-breakers. The
tendency among recidivists to repeat crime is due to their inability to conform to the accepted
norms of society. Investigative researches reveal that it is the mental depravity of the offenders
which makes them delinquent and therefore, a system of clinical treatment seems inevitable for the
correction of such offenders. However, there is a need for compartmentalisation of offenders for
this purpose on the basis of age, sex, gravity of offence and mental condition. This object is achieved
by sdentific classification of criminals into different categories such as the first offenders, habitual
offenders, recidivists, juvenile delinquents, insane criminals, sex phychopaths etc. The correct
approach would be to treat punishment as a sort of social surgery since criminal is essentially a
product of conflict between the interests of society.