Crime & Criminology

The conduct which are prohibited by the existing law at a given

time and place are known as wrongful acts or crime. In fact,
crime is a constant phenomenon changing with the social
transformation. Historically, the concept of crime seems to
have always been changing with the variations in social
conditions during the evolutionary stages of human society.
Primitive societies did not recognize any distinction between
the law of crime and torts but only knew law of wrongs. During
this period, recourse to legal remedy was considered merely an
optional alternative to self-redress. The wrongdoer was
supposed to offer compensation to the person wronged, the
quantum of which depended on the extent of the wrong caused
and status of the sufferer. The payment of compensation
washed away the guilt of the wrongdoer and relegated him to a
position as if he had done no wrong.
However, if compensation was refused, the law had no other
means to enforce its payment. In that event, it was for the
victim or his kindred to prosecute a ‘blood-feud’ against the
wrongdoer and law could help him only by declaring the
wrongdoer as an ‘outlaw’ who could be chased and killed by
anyone like a wild beast.
According to ‘Dharamsastra’ writers ordeal was a living
institution in India. Ancient writers have referred to the ordeals
as divine methods with various names. Ordeals were treated as
a divine means of proof about guilt or innocence of the
accused. The two important aspects of ordeals were: (i) they
indicated the divine aspect of trial, and (ii) the basic idea
underlying this method of trial was the need of divine
intervention at a crucial moment in dispensing justice.
‘Yajnavalkya mentions five kinds of ordeals – Balance, Fire,
Water, Poison and Kosa.

It was once believed that some persons inherit devilish

tendencies by birth. They, were therefore, known as born
criminals or criminals by nature and were considered
incorrigibles. The only way to keep them off was their complete
elimination from the society. In the middle of the 18th century
Beccaria, the pioneer of modern criminology advanced his
classical theory founded on ‘free will; of the individual. Through
a series of systematic reserches he successfully exploded the
theory of ‘born criminals’ and established that everyone is
master of his ownself and is free to act what he wants. Thus a
man resorts to criminal act out of his intelligence and free will;
Beccaria’s ufree will theory challenged by the positivists,
Lombrose and Tarde who suggested that man is not self-
determining agent free to act as he desires but is
fundamentally a biological organism. It is, free to act as he
desires but is fundamentally a biological organism. It is,
therefore, the biological consideration which determines his
acts and behaviour. Every person, as a biological creature tries
to adjust himself to social environment. With the advance of
knowledge and development of criminal science, it was
gradually realized that no one is a born criminal but it is the
circumstances that make him so; not because he wants to be a
criminal but he is rather forced to lends into criminality.
The change in civilization, culture and advancement of scientific
knowledge brought about a change in the concept of crime
which eventually led to the emergence of criminology as an
independent branch of knowledge.
The concept of crime is closely related to social policy of a
given time. With changes in ideologies the concept of crime
also changes. That is to say, certain new crimes spring up
whereas some existing crimes become obsolete and, therefore,
they are deleted through adequate changes in the criminal law.
The criminal law has often been considered as a barometer to
gauge the moral turpitude of the society at a given time.
In the opinion of Sociologists, every anti-social act emanates
from some criminogenic tendency which needs to be cured by
society. Thus they attempt toe correlate the concept of crime
with other sociological and environment factors.
Many writers have defined ‘crime’ as an anti-social, immoral or
sinful behaviour. Garafalo, preferred sociological definition of
crime and stated that crime is an act which offends the basic
sentiments of ‘pity’ and ‘probity’. Yet another view about crime
is to treat is as an anti social behaviour which is injurious to
society. Garafalo, observed that “crime is an immoral and
harmful act that is regarded as criminal by public opinion
because it is an injury to so much of the moral sense as is
possessed by a community”
According to Stephen, crime means an act which is both
forbidden by law and revolting to the moral sentiments of
society.
Judicial approach to criminology suggests that an act to
become a rime must conform to two cardinal principles of
criminal liability, namely:-
(i) no one is held criminally liable unless he has done an act
which is expressly forbidden under the existing criminal law of
the land and has a reprehensible state of mind to do it.
(ii) no one can be punished for an act unless it is made
punishable under the law.
An obvious way of defining crime is in legal terms, to
distinguish it from sin, religious and moral wrongs. A legal
definition gives a basic premise in which the pitfalls resulting
from individual or group opinion are avoided.
According to the legal definition, ‘crime’ is any form of conduct
which is declared to be socially harmful in a State and as such
forbidden by law under pain of some punishment. Paul W.
Tappan, defined crime as, “an intentional act or omission in
violation of criminal law, committed without any defence or
justification and penalized by the law as felony or
misdemeanour.”
In other words it could be said as, an act or omission in
violation of criminal law, since any defence or justification is to
be found within the criminal law, and there is no question for a
particular act or omission in certain circumstances. Further, it
is not necessary for an act or omission in certain
circumstances. Further, it is not necessary for an act or
omission to be intentional in order to be a crime; it could be
made punishable on the basis of knowledge, recklessness or
negligence or even without any reference to the mental
element of the wrongdoer i.e. based on the concept of strict
responsibility.
Halsbury, defines crime as unlawful act which is an offence
against the public and the perpetrator of that act is liable to
legal punishment.
The exponents of each one of the above schools accuse the
other of being unscientific in approach. The legal definition has
been criticized on the ground that whether any act or omission
is recognized as crime at a given time in a society depends
upon values which are relative and not on any intrinsic worth of
the act or omission and that makes the study of crime
unscientific. The categories set up by the criminal law are of a
“fortuitous nature” and do not arise intrinsically from the
nature of the subject-matter the scientists attempt to analyze.
This charge of variation in the legal attitude towards various
acts is countered by the supporters of the legalistic approach
by pointing out that not only do the legal norms vary due to
various circumstances but also all the social norms which are
essentially relative and impermanent. Criminal law not only
given precise definition of forbidden acts but also has the
machinery and procedure to determine the violation and,
the5refore, is able to identify the offenders, which is not
possible in cases where certain conduct is branded as criminal
in social terms irrespective of prevailing legal notions. This
certainly is the advantage in the legal definition over the social
one despite the various inherent weaknesses of criminal law
processes like non-prosecution of many offenders, the
possibility of false conviction, greater possibility of failure to
convict all guilty persons and of innumerable cases remaining
unreported to the police, the best exposition of the case for
legal definition has been made by Paul W. Tappan, as :
The validity of this contention must depend, of course, upon
that the nature of the subject-matter is. These scholars
suggest that, as a part of the general study of human
behaviour, criminology should concern itself broadly with all
anti-social conduct, behaviour injurious to society. We take it
that anti-social conduct is essentially any sort of behaviour
which violates some social interest. What are these social
interests which are weighty enough to merit the concern of the
sociologist, to bear the odium? What shall constitute a violation
of them? Particularly where, as is so commonly true in our
complicated and unintegrated society, these interests are
themselves in conflict? Roscoe Pound’s suggestive classification
of the social interests served by law is valuable in a juristic
framework, but it solves no problem for the sociologist who
seeks to depart from legal standards in search of all manner of
anti-social behaviour. However desirable may be the concept of
socially injurious conduct for purpose of general or abstract
description, it does not define what is injurious. It sets no
standard and it does not discriminate cases, but merely invites
the subjective value-judgment of the investigator.”
From the forgoing definitions, it may be said that a crime is a
wrong to society involving the breach of a legal wrong which
has criminal consequences attached to it, i.e. prosecution by
the State in the criminal court and the possibility of punishment
being imposed on the wrongdoer.
The issue is in favour of the legal definition by observing that
convicted criminals represent the closest possible
approximation of those who have in fact violated the law even
if this group may not be complete or fully representative of all
those who have committed crime.
Broadly speaking, every criminal behaviour must respond to
the following tests in order to be reckoned as a crime:-
(i) There should be an external act (Actus).
(ii) It should be done with some criminal intent (mens rea).
(iii) It should be prohibited conduct under the existing law, and
(iv) It should carry with it some kind of punishment.
Criminology as a branch of knowledge is concerned with those
particular conducts of human behaviour which are prohibited
by society. It is, therefore, a socio-legal study which seeks to
discover the cause of criminality and suggests remedies to
reduce crimes.
Even if the legal definition of crime is accepted in preference to
the social definition for the study of criminology, it does not
provide any guide as to what kind of human conduct should be
declared ‘criminal’. It is true that in most of the crimes there is
the common element of immorality and the harmful nature of
the acts constituting crime. This is particularly true of
traditional crime known as mala in se. But there are various
other offences in which there is no eleme4nt of immorality in
the traditional sense, these are known as mala in prohibita,
and, on the other hand, there are many acts which are not
crimes, despite the element of immorality being present in the
accepted sense. What conduct should be made criminal
depends not only on the question whether the conduct is moral
or immoral but also on the considerations of the possibility of
its implementation through the legal machinery.

Paul W. Tappan was of the opinion that criminology is

synonymous with the sociology of criminal law. The view that
crime is an undesirable social behaviour is in particular
reflected in the field of juvenile delinquency since delinquency
is wider term than criminality.
Even when the word crime is used in the legal sense by
criminologists, it is not all types of violation of criminal law
which would fall within the domain of criminology as the proper
subject of study. In contemporary society many offences have
been created which are known as ‘social welfare offences’
based on strict responsibility. They are different from
traditional crimes and, therefore, mala in prohibita and not
mala in se. The concept of mala in Prohibita almost concides
with the modern notion of ‘public welfare offences’.
The widening of the area of crime by ‘public welfare offences’
has been caused due to the tremendous governmental activity
almost everywhere in the world to deal with various socio-
economic problems.

Schools Of Criminology

The Pre-Classical School:

The history of primitive societies and early medieval period
reveals that human thinking in those days was predominated
by religious mysticism and all human relations were regulated
through myths, superstitions and religious tenets prevailing in
a particular society. There was a general belief that man by
nature is simple and his actions are controlled by some super
powers. It was generally believed that a man commits crime
due to the influence of some external spirits. They considered
crime and criminals as an evidence of the fact that the
individual was possessed of devil and the only cure for which
was testimony of the effectiveness of the spirit. Worships,
sacrifices and ordeals by water and fire were usually prescribed
to specify the spirit and relieve the victim from its evil
influences. Ever since the time of Manu it has been repeatedly
argued that ordeals are the creations of Brahma and have been
practiced by gods, great sages and all thoughtful persons.
The pre-classical thinking, however, withered away with the
lapse of time and advancement of knowledge. Though these
practices appear to be most irrational and barbarious to the
modern mind, they were universally accepted and were in
existence in most countries.
The Classical School:
During the Middle of 18th century, a systematic study of
criminology was first taken by the Italian scholar Beccaria who
is known as father of modern criminology. His greatest
contribution to the science of criminology was that he for the
first time proceeded with the study of criminals on a scientific
basis and reached certain conclusions from which definite
methods of handling crime and criminals could be worked out.
He expounded his naturalistic theory of criminality by rejecting
the omnipotence of evil spirit. He laid greater emphasis on
mental phenomenon of the individual and attributed crime to
‘free will’ of the individual. Thus he w as much influenced by
the ‘Utilitarian Philosophy’ of his time which placed reliance on
hedonism, namely, the “Pain and pleasure theory”. He sought
to humanize the criminal law by insisting on natural rights of
human beings. Beccaria’s tightly reasoned argument can be
summarized in relatively simple terms:-
(1) In order to escape war and chaos, individuals gave up
some of their liberty and established a contractual society.
(2) Because criminal laws placed restrictions on individual
freedoms, they should be restricted in scope. They should not
be employed to enforce moral values.
(3) The presumption of innocence should be the guiding
principle in the administration of justice, and at all stages of
the justice process the rights of all parties involved should be
protected.
(4) The complete criminal law code should be written and
should define all offences and punishments in advance.
(5) Punishment should be based on retributive reasoning
because the guilty had attacked another individual’s rights.
(6) The severity of the punishment should be limited and it
should not go beyond what is necessary for crime prevention
and deterrence.
(7) Criminal punishment should correspond with the
seriousness of the crime; the punishment should fit the crime,
not the criminal.
(8) Punishment must be a certainty and should be inflicted
quickly.
(9) Punishment should not be administered to set an example,
neither should it be concerned with reforming the offender.
(10) The offender should be viewed as an independent and
reasonable person.
Benthem was greatly influenced by Beccaria and carried on the
work in the same direction subsequently. Benthem like
Beccaria, was an outright Utilitarian and to him the only
rational basis of any law could be the greatest happiness of the
greatest numbers. The principle, known as Utilitarian
Hedonism, requires that punishment, being an evil in itself,
should not exceed more than what is absolutely necessary to
produce the desired effect on the criminal and society.
The contribution of Classical School to the development of
rationalized criminological thinking was by no means less
important, nevertheless, it had its own pitfalls. The major
shortcoming of the classical school was that it proceeded on an
abstract presumption of free will and relied solely on the act
without devoting any attention to the state of mind of the
criminal. It erred in prescribing equal punishment for same
offence thus making no distinction between first offenders and
habitual criminals. However, the greatest achievement of this
school of criminology lies in the fact that it suggested a
substantial criminal policy which was easy to administer
without resort to the imposition of arbitrary punishment.
Neo-Classical School:
The ‘free will’ theory of Classical School did not survive for
long. It was realized that this approach ignored the individual
differences under certain situations. The neo-classists asserted
that certain categories of offenders such as minor, idiots,
insane or incompetent had to be treated leniently irrespective
of the similarity of their criminal act because these persons
were incapable of appreciating the difference between right and
wrong. This tendency of neo-classicists to distinguish criminals
according to their mental depravity was indeed a progressive
step inasmuch as it emphasized the need for modifying the
classical view. The conditions under which a criminal commits a
crime was studied first time in this theory.
Neo-classists approached the study of criminology on scientific
lines by recognizing that certain extenuating situations or
mental disorders deprive a person of his normal capacity to
control his conduct. They supported individualization of
offender and treatment methods. The distinction between
responsibility and irresponsibility, i.e. the sanity and insanity of
the criminals paved way to subsequent formulation of different
correctional institutions. Neo-classists adopted subjective
approach to criminology and concentrated their attention on
the conditions under which an individual commits crime.
The main contribution of the neo-classical school of criminology
lies in the fact that it came out with certain concessions in the
‘free will’ theory of classical school and suggested that an
individual might commit criminal acts due to certain
extenuating circumstances which should be duly taken into
consideration at the time of awarding punishment.
The Positive School:
With the advance of behavioural sciences, the monogenetic
explanation of human conduct lost its validity and new trend to
adopt an eclectic view about the genesis of crime gradually
developed. By the 19th of century, certain French doctors were
successfully establishing that it was neither ‘free will’ of the
offender nor his innate depravity which actuated him to commit
crime but the real cause of criminality lay in anthropological
features of the criminal. This led to emergence of Positive
School of criminology.
The most significant difference between the classical school and
the positivist school is the latter’s search for empirical facts to
confirm the idea that crime was determined by multiple factor.
They primarily emphasized the mind and the body of the
criminal, thus to some extent neglecting social factors external
to the individual.
The modern search for multifactor explanations of crime is
usually attributed to Lombroso, an Italian often called “the
father of modern criminology”. Lombroso, a specialist in
psychiatry, was serving as army physician handling the
mentally afflicted soldiers at various military posts. For
Lombroso the objective search for explaining human behaviour
meant disagreement with free will philosophy. Lombroso made
observations on tattooing, particularly the more obscene
designs which he felt distinguished infractious soldiers. Later
Lombroso used the practice of tattooing as a distinguishing
characteristic of criminals.
Lombroso adopted an objective and empirical approach to the
study of criminals through his anthropological experiments.
After an intensive study of physical characteristics of his
patients and later on of criminals, he came to definite
conclusion that criminals were physically inferior in the
standard of growth and, therefore, developed a tendency for
interior acts. He further generalized that criminals are less
sensitive to pain and therefore they have little regard for the
sufferings of others. Thus through his biological and
anthropological researches on criminals Lombroso justified the
involvement of Darwin’s theory of biological determinism in
criminal behaviour .
The central tenet of Lombroso’s early explanations of crime is
that criminals represent a peculiar physical type, distinctively
different from non-criminals. In general terms, he claimed that
criminals represent a form of degeneracy that was manifested
in physical characteristics reflective of earlier forms of
evolution. He described criminals as atavistic, a thrownback to
an earlier form of evolutionary life.
Lombroso classified criminals into four major categories:
(i) The born criminals, people with atavistic characteristics. He
considered these criminals beyond ;
(ii) Insane criminals, who included idiots, imbeciles, and
paranoiacs, as well as epileptics and alcoholics;
(iii) Occasional criminals or criminolids, whose crimes are
explained primarily by opportunity, although they too have
innate traits that predispose them to criminality. They have a
tendency to commit crime to overcome their inferiority in order
to meet the needs of survival; and
(iv) Criminals of passion who commit crimes because of anger,
love or honour. They are characterized by being propelled to
crime by an “irresistible force”.
Lombroso modified his theory throughout five editions with
each one giving attention more and more environmental
explanations including climate, rainfall, sex, marriage customs,
laws, the structure of government, church organization, and
the effects of the other factors. However, he never completely
gave up the idea of the existence of a born criminal type.
Most noteworthy here is the attention he gave to a multifactor
explanation of crime that included not only heredity but social,
cultural, and economic variables. He was positive in method
and objective in approach which subsequently paved way to
formulation of multiple-causation theory of crime by the
sociologists. The multiple factor explanation is common in
today’s study of crime. Lombroso is credited also with pushing
the study of crime away from abstract metaphysical, legal, and
juristic explanations as the basis of penology “to a scientific
study of the criminal and the conditions under which he
commits crime.”
Lombroso’s legacy of positivism was continued and expanded
by a fellow Italian, Enrico Ferri. Unlike Lombroso who gave
more attention to biological than to social factors, Ferri gave
more emphasis to the interrelatedness of social, economic, and
political factors that contribute to crime. He firmly believed that
other factors such as emotional reactions, social infirmity or
geographical conditions also play a vital role in determining
criminal tendencies in men. He argued that criminality could be
explained by studying the interactive effects among physical
factors, individual factors and social factors. He also argued
that crime could be controlled by social changes, many of
which were directed toward the benefit of the working class.
In the first four editions of his work Ferri had only five classes
of criminals:
(i) The born of instinctive criminal whom Lombroso had
identified as the atavist;
(ii) The insane criminals who was clinically identified as
mentally ill;
(iii) The passion criminal who committed crime as a result of
either prolonged and chronic mental problem or an emotional
state;
(iv) The occasional criminal who was the product of family and
social conditions more than abnormal physical or mental
problems; and
(v) The habitual criminal who acquired the habit from the social
environment.
In the fifth edition of his work he added a new explanation of
crime, the involuntary criminal.
After Lombroso and Ferri, Raffele Garofalo was the last major
contributor to the positivist school of criminology. Unlike
Lombroso’s emphasis on criminals as abnormal types with
distinguishable anatomic, psychological and social features, or
Ferri’s emphasis on socialistic reforms and social defenses
against crime, Garofalo is remembered for his pursuit of
practical solutions to concrete problems located in the legal
institutions of his day and for his doctrine of “natural crimes”.
Garofalo’s theoretical arguments on the nature of crime and on
the nature of criminals were consistent with social Darwinism.
He argued, for example, that because society is a “natural
body” crimes are offences “against the law of nature”. Criminal
action was therefore crime against nature. Accordingly, the
“rules of nature” were the rules of right conduct revealed to
humans through their reasoning. Garofalo’s thinking also
included some influence from the classical school and its
emphasis on reasoning. He nevertheless identified acts that no
society could refuse to recognize as criminal and repress by
punishment: natural crimes. These offences, according to
Garofalo, violated two basic human sentiments found among
people all ages, namely the sentiments of probity and pity.
He argued that true criminals lacked properly developed
altruistic sentiments. True criminals, in other words, had
psychic or moral anomalies that could be transmitted through
heredity. This conclusion led Garofalo to identify four criminal
classes one distinct from the other because of deficiencies in
the basic sentiments of pity and probity:
(i) Murderers whom he called “endemic” criminals
(ii) Violent criminals who are affected by environmental
influences such as prejudices of honour, politics and religion;
(iii) Criminals lacking in sentiments of probity (Thieves);
(iv) Lascivious or lustful criminals who commit crimes against
sex and chastity.
He reasoned that because true criminals’ action revealed an
inability to live by the basic human sentiments necessary for
society to survive, they should be eliminated. Their death
would contribute to the survival or society. For lesser criminals,
he proposed that elimination take the form of life imprisonment
or overseas transportation.
It is clear that deterrence and rehabilitation were secondary
considerations for Garofalo. However, he favoured “enforced
reparation” and indeterminate sentences, which indicates that
Garofalo’s social defenses against crime were modeled to some
extent on the psychic characteristics of the offender. In this
regard his position of punishment is more in line with the free
will reasoning of the classical scholars than Garofalo might
admit.
He strongly pleaded for elimination of habitual offenders who
were incapable of social adaptation as a measure of social
defence.
Ernest A. Hooton, proceeded to a detailed analysis of the
measurements of criminals and non-criminals from eight
different states. He argued that “criminals are inferior to
civilians in nearly all of their bodily measurements”. He also
reported that low foreheads indicated inferiority and that “a
depressed physical and social environment determines Negro
and Negroid delinquency to a much greater extent than it does
in the cases of Whites”.
These and similar conclusions generated severe criticism of
Hooton’s work, especially the racist overtones and his failure to
recognize that the prisoners he studied did not represent
criminal offenders who had not been caught or offenders who
had been quality but not convicted. His control group was
criticized also for not being representative of any known
population of people. Hotoon was criticized also for treating
some small difference in measurement as greatly significant
and for ignoring other differences that were found.
It is important to notice that despite the stinging criticism
received by Hotoon and by others who were searching for
biological explanations, the search nevertheless continued and
expanded. The work by Sheldon, for shifting attention away
from adults to delinquent male youths. In an effort to link
physiques to temperament, intelligence, and delinquency. By
relying on intense physical and psychological examinations,
Sheldon produced an ‘Index to Delinquency” that was used to
give a quick and easy profile of each male’s problems.
Sheldon classified the boys’ physiques by measuring the
degree to which they possessed a combination of three
different body components. The three components were:

(i) endomorphy;
(ii) Mesomorphy; and
(iii) Ectomorphy.
Each could dominate a physique. Endomorphs tended to be
soft, fat people; mesomorphis had muscular and athletic
builds; ectomorphs had skinny, flat, and fragile physiques.
Sheldon concluded that because youths came from parents
who were delinquent in very much the same way that the boys
were delinquent, in very much the same way that the boys
were delinquent, the factors that produce delinquency were
inherited.
The greatest contribution of positive school to the development
of criminal science lies in the fact that the attention of
criminologists was drawn for the first time towards the
individual, that is the personality of criminal rather than his act
or punishment. The positive school introduced the methology
and logic of natural science in the field of criminology. The
positivist school also helped to usher in an approach to policy
that was reformative rather than punitive in impulse. To be
sure, the conclusion that offenders are characterized by
unchangeable bodily or psychological characteristics leads
logically to the conclusion that offenders should be either
eliminated, caged indefinitely, or altered physically through
instructive measures.

Individualistic Approach
(Crime Causation Theories)
Criminologists have always differed in their views regarding
crime-causation. Continental criminologists often support the
endogenous theory of criminality which is founded on bio-
physical consideration of criminals. The American criminologists
on the other hand, are more inclined to explain criminality in
terms of social factors. Thus, the former approach the problem
of crime-causation subjectively while the latter are objective in
their approach. This subjective approach to crime-causation
has eventually led to the evolution of typological school of
criminology which suggests that there are certain personality
type of criminals who take to criminality because of their
heredity, psychopathic and bio-physical traits. To many people,
crime is a consequence of some faulty characteristic of the
individual or the individual’s life experiences. The Individualistic
approach focus attention on biological, mental and other
characteristics of the offender to explain the cause of his
delinquent behaviour.
The positive school of Italy focused its attention on the
personality of the offender and rejected the free-will theory.
They explained crime primarily in terms of factors within the
criminal, i.e. physical, biological and mental traits and,
therefore, either ignored external factors altogether or gave
them secondary importance. The main utility of Individualistic
Theories is that for the first time the focus of the attention was
shifted from crime to the criminals.
Lombrosian is regarded as the father of modern criminology
since he was the first to employ scientific methods in explaining
criminal behaviour and shifted the emphasis from crime to the
criminal. Lombrosian through their biological and
anthropological researches succeeded in establishing a
correlation between heredity of the criminal and his
criminogenic tendencies.
The psychiatrists, on the other hand, located crime in mental
depravity of the criminals. Mental deficiency does not play any
direct role in the causation of criminal tendency in a person but
indirectly it may be relevant because social adjustment can be
more difficult for persons with low intelligence. The
psychologists explained crime in terms of personality
deviations.
Lombroso’s theories have been severely criticized by modern
criminologists. It has been pointed out that he used the term
atavism loosely since physical traits of criminals as well as
social customs were regarded by him as of atavistic
significance. His assumption regarding some sort of nexus
between atavism and criminal behaviour has no scientific base.
He also failed to appreciate that both criminal as well as non-
criminal behaviours were the result of the process operating on
the basis of various social and physical factors.
Biological differences in human personality also accounts for
criminality in human beings. The logic behind biological
explanation of crime is that structure determines function and
persons behave differently owing to the fact that they are
somehow structurally different. The physical and biological
abnormalities are generally responsible for criminal behaviour.
Hooton attempted to show that crime and other anti-social
behaviours are due to physical and social factors. He seemed to
vindicate Lombroso’s anthropological findings about criminal
behaviour. After an intensive study of prison inmates he
concluded that prisoners differ from non-criminals in various
physical particulars that composed definite pattern of physical
inferiority.
Hooton said that, “Criminals are organically inferior. Crime is
the resultant of the impact of environment upon low grade
human organism”. He also tried to establish some nexus
between the physical characteristics of the offenders and the
type of offences committed by them. His study disclosed that
murders and robbers were of tall and thin stature, thieves and
burglars were undersized, while sexual offences and assaults
were committed by persons of short and heavy constitution.
Hooton’s studies was contradicted on various grounds. It was
said that there was no such nexus by pointing out that half of
the prisoners studied by Hootan were convicted of different
offences earlier. There is yet another defect as pointed in the
studies undertaken by Hooton & Sheldon. The two have
different ideas regarding physically inferior type of people. To
Hooton the criminal is an inadequately developed, runty fellow,
while Sheldon chooses the husky and athletic type as the
typical criminal.
Sheldon tried to establish a co-relation between physical
structure of the criminal and the crime through what he called
the application of constitutional theory to human behavioural
problems. He developed his ideas from the fact that life begins
in the embryo which is made up of three different tissue layers,
namely, an inner layer called endoderm, a middle layer known
as mesoderm and an outer layer or ectoderm. He correlated a
corresponding physical and mental typology consistent with the
known facts from embryology and the physiology of genetic
development. He pointed out that physiologically, the
endoderm gives rise to the development of digestive viscera,
the mesoderm to bone, muscle and tendons of the motor-
organ system, the ectoderm to connecting tissues of nervous
system, skin and related appendages. He summarized the basic
characteristics of physique and temperament of these types of
physical structure as follow:
(1) Endomorphic structure: They are persons with fatty or
bulky body having short tapering limbs, small bones, soft and
smooth skin and are usually of mild temperament and
comfortable persons.
(2) Mesomorphic Structure: Persons with such structure are
strongly built with prominent muscles and bones and
connective tissues. They have heavy chest and large wrists and
hands. These persons are temperamentally somotonic, active,
dynamic, assertive and behave aggressively.
(3) Ectomorphic: Persons with ectomorphic structure are
constitutionally lean and fragile with delicate body, small face,
sharp nose and fine hair. They are sensitive by temperament
and avoid crowds.
Sheldon further asserted that these physical structures were
directly related to temperament of the person who committed
crime. Thus according to him, endomorphic were moody and
accommodative by nature while the mesomorphics had a rigid
and somewhat ‘serious’ temperament. The ectomorphics, on
account of their delicate physical built-up, are often shaky in
their decisions and are short tempered. He attributes
criminality to endomorphic and mesomorphics rather than the
ectomorphics.
While discussing the personality aspect of the criminal Taft lays
emphasis on the effect of intelligence and its impact on crime
causation. He asserts that persons lacking in average
intelligence are generally not aggressive, anti-social or sexually
promiscuous, but are rather inactive and timid. They easily
lend into criminality because they cannot foresee the possible
consequences of their acts and are unable to adjust to the
complexities of modern life. Their incapability to distinguish
between right and wrong or to foresee the danger of detection
is yet another cause of their criminal behaviour. But it has been
sufficiently established by now that feeble-mindedness forms a
very small proportion of delinquencies and in fact crimes are
mostly committed by persons of considerable intelligence and
sharp outlook.
Psychopaths contend that offenders lend into criminality on
account of functional deviations and mental conflicts. Sigmond
Freud explained mental conflicts in the personality of criminals
in terms of :
(i) id;
(ii) ego; and
(iii) super ego.
He asserted that ‘Id’ generates basic biological and
physiological urges and impulses in a person. ‘Id’ is the source
of basic biological drives in a human being and is present at the
time of birth and also operates in the unconscious state.
Throughout life the ‘id’ constantly seeks expression of a social
drive. The viewpoint that we are all potential criminals is not
peculiar to psychoanalytic approach alone but has been
expressed by many other philosophers and writers.
While ‘ego’ refers to the conscious personality, an attitude
which grows out of contact with the material and social world,
of which the individual is aware. That is to say, although the
desire for sex pleasure and hunger are basic urges of a person
yet he is all the time conscious that only the righteous means
urges of a person yet he is all the time conscious that only the
righteous means to fulfil these desires protect his personality
and any deviation from the normal course shall cast aspersions
on his personality.
‘Super ego’ according to him is the force of self-criticism and
control inherent in every person. Thus there is a constant
conflict between ‘Id’, ‘ego’ and ‘Super-ego’. He therefore,
contends that crime is the substitute of symbolic behaviour of a
person.
According to Freud, the ‘ego’ does not exist at birth, but it is
something the individual learns. Gradually ‘ego’ develops and
starts controlling the temper i.e., ‘id’. The ‘super-ego’ is largely
part of the unconscious personality. It is the conscience which
exists in the unconscious areas of mind. The super-ego thus
characterizes the fully socialized and conforming member of
society. It is the impact of moral and ethical attitudes of
parents with whom the child has his or her earliest contacts
and relationships which helps in formation of the ‘super-ego’.
Thus, it would be seen that ‘id’ demands pleasure, while the
‘super-ego’ demands control and repression and both push ego
towards its own. As a result of this, there is a conflict which is
difficult to resolve. Where the ‘super-ego’ in a child is not well
developed, he is likely to be drawn towards delinquency. Freud
postulated that the failure to develop ‘super-ego’ was generally
the result of parents being unloving, harsh or absent during the
child’s upbringing. It is for this reason that socializing
processes had failed to work on those children whose latent
delinquency had become dominant; the children were,
therefore, dis-social, if not anti-social.
Psychologists also recognise that other factors such as
relationships with persons outside the family and general social
environment can also affect the formation of ‘super-ego’. If
‘super-ego’ is over-developed, it may lead to guilt feeling.
The adherents of the approach appear to hold the view that no
other approach is capable of disclosing the whole truth about
the criminal. The obvious merit of the psychoanalytical
approach is that social factors are also accommodated in the
analysis of the ultimate personality of the offender by taking
into account the interaction of ‘ego’ and ‘super ego’.
The difficulty in the application of psychoanalytical approach in
cases of individual criminal behaviour is the fact that it is quite
difficult to examine the actual mental state of a person with the
tools available to psychoanalytical science at present. To
investigate the measure emotion is an extremely complex job.
The individualistic approaches have lost mush of the credibility
with the advent of more sophisticated environmental theories.
Their main weakness lies in the fact that they fail to see that
crime represents a socio-cultural phenomenon which is not
associated with the physical or mental equipment of an
individual as such.
Conflict Theory of Crime

The popular view, of the definition and concept of crime is that

(1) the law represents the values of society; (2) if it does not
represent the value of everyone, then it at least expresses the
best common denominator of society and operates through a
value-neutral governmental structure, which is ultimately
controlled by the choice of the people; and (3) in the long run
the law serves the best interest of society. A contrary view has
been taken by the modern conflict criminologists holding that
the apparent consensus may be deceptive and a deeper
analysis would lead to the conflicting forces operating in the
formulation of criminal conduct and administration of criminal
justice.

1. Sellin’s Culture Conflict Theory:- Sellin asserted that culture

conflict emnates from conflict of conduct norms, where each
separate culture sets out its own norms i.e. rules of behaviour
to be instilled into its members. In a situation like this, law
would evidently reflect the values of the dominant class and
not of the society as a whole; the phenomenon thereby often
bringing the members of the non-dominant group in collision
with the legal norms.
Conflict between the norms of divergent cultural codes may
arise in the following situations:
(i) When these codes class on the border of contiguous culture
areas;
(ii) When, as may be the case with legal norms, the law of one
cultural group is extended to cover the territory of another; or
(iii) When members of one cultural group migrate to another.
2. Vold’s Group Conflict Theory.- Vold propounded his theory
based on conflict among various interest groups; emergence of
new groups making it a continuous process. He argued that
people are naturally group oriented and those who have same
interests come together to form a group in order to carry
forward these interests. The central theme of Vold’s theory is
that different groups have different and often incompatible
interests which gives rise to conflicts. Where groups have
similar strength, then they often resolve their conflict by
compromise thus lending stability to society. But, if the groups
are of differing strength, the powerful one dominates which
creates frustration and feeling of discontent among the weaker
group which eventually leads to crimes. Thus, crime according
to Vold is not the result of abnormality, but it is rather a
natural response to an attack on the way of life of the deprived
or weaker group.
3. Quinney’s Theory of Social Reality of Crime.- Quineey
focused on the conflicts of groups in the context of the various
institutions, and public. The diverse groups, according to
Quineey, were linked to the major institutional concerns but
the interest structure was characterized by the unequal
distribution of power. He rejected the pluralist notion that law
represents the compromising of diverse interests; rather law
supports some interests at the expense of others.
Quineey laid down six propositions regarding crime and
operation of criminal law, the propositions by no means original
but based on earlier theories. Some of the aspects in the
propositions may be elaborated as follows:
(i) Law in operation is an aspect of politics. Thus crime not a
matter of individual pathology, ‘but is a judgment made by
some about the actions and characteristics of others’.
(ii) In the creation and interpretation of law, the values of
some necessarily taken into account may negate the values
held by other. The relative power and influence of the
segments to which individuals may belong would determine the
situation.
(iii) The politics of reality is that people grant those in power
the authority to carry out the actions that best promote the
interests of the authorities.
4. Turk’s Theory of Criminalisation.- The main thrust of this
theory is that cultural differences alone do not cause social
conflicts, the crucial factor is the difference between the
perspectives of authorities and subjects which are bound to be
at variance and may clash overtly. In his analysis Turk uses the
factor of sophistication ‘by which is meant knowledge of
patterns in behaviour of other which is used in attempts to
manipulate them’.
5. Chambliss and Seidman’s Analysis of Criminal Justice.- some
conflict criminologists have studied the working of criminal
justice system and one such study made by Chambliss and
Seidman is the most exhaustive.
They did not find the consensus theory operating in the
criminal justice system. According to them, “every detailed
study of the emergence of legal norms has consistently shown
the immense importance of interest-group activity, not the
‘public interest’, as the critical variable in determining the
content of the legislation. Like other conflict criminologists,
they also maintain that “ higher a group’s political and
economic position, the greater is the probability that its views
will be reflected in the laws”. The personal values of the
judges, as reflected in deciding ‘trouble cases’, are primarily
oriented to the wealthy than the poor. This bias on the part of
the appellant judges can be appreciated keeping in view their
privileged social and economic background. Thus public interest
in criminal justice is represented only to the extent that it
coincides with the interest of the existing power groups.
A number of studies have been made to test the ‘differential
behaviour of criminal law’; to examine whether the system
operates in favour of wealthy and powerful persons.
Sutherland’s theory of Differential Association as an
explanation of crime-causation seems inevitable as it extends
positive support to the impact of psychological traits on
incidence of crime. Considering the structural aspect of human
association, Sutherland suggested that social organization
consists of three main groups, viz., one supporting the criminal
activities, the other remaining neutral to criminal
circumstances third acting anti-criminal. He further observed
that the differential association in human organization is a
logical consequence of the phenomenon.
It is often argued that Sutherland’s theory of differential
association as an explanation of crime-causation has only a
theoretical significance because it lacks reality. Alternatively,
the conflict theory of crime which considers crime as a minority
group behaviour places reliance on psychological trends of
human behaviour in relation to crime.
It must be stated that conflicts generally arise from
misunderstanding, lack of understanding, clash of interests,
gulf between the views of beliefs of persons or parties,
suspicion, lack of justice, fair play or honesty, intolerance and
violence and lack of rapport, love, and cooperation etc. Once
the conflicts arise and not quickly resolved, the situation leads
to confrontation, social instability, disaffection and lawlessness
which finally culminates into violence and criminality. It is,
therefore, in the interest of the society that the cause of
tension and conflict be eliminated and if they do arise, they
must be resolved at the earliest. This is perhaps the best way
to mitigate crimes.

Sociological (Environmental) Approach

Sociological approach seeks to explain the phenomenon of

criminal behaviour with reference to factors outside the
personality of the delinquent. The subject-matter for the
analysis of criminal behaviour extends from the individual
delinquent to the community, social institutions and group
relationships which shape both criminal and non-criminal
behaviour. In this approach criminal behaviour is looked upon
as resulting from social interactions.
In this approach the impact of various social and environmental
conditions within which crimes generate. American
criminologists preferred to approach the problem of crime
causation objectively. They attributed criminality to social
conditions of the criminal.
The sociological theory of crime asserts that there are persons
who do not conform to the established norms and traditions
prescribed by law. These persons do not adjust themselves
within the framework of normal standards of society and are
more or less indifferent to societal norms.
Tarde provided the starting point of the explanation of crime in
terms of social factors. He is considered as father of social
psychology. He criticized and even ridiculed the theories of his
contemporary, Lombroso. He compared the detection of
criminality on the basis of physical traits by Lombroso with the
detection of divinity by Tibetan priests in a newborn baby on
the basis of appearance while choosing the future great Lama.
Tarde did not think that even psychological criminal were
unique compared to non-criminals. According to him criminal
behaviour is the result of a learning process. A person learns
criminal behaviour just like any other trade which he picks up
in his childhood. Tarde’s theory was the precursor of the
modern ecological and differential association theories.
Garofalo was perhaps the first legalist to attempt a sociological
definition of crime. He designated all those acts as crime which
no civilized society can refuse to recognize as criminal
redressible by punishment. He observed that crime is an
immoral and harmful act which is regarded as ‘criminal’ by
public opinion because it is an injury to so much of the moral
sense as is represented by one or the other of the elementary
altruistic sentiments of probity and pity.
Sociological view point about the concept of crime is more
realistic than its legal definition. It is true that with the repeal
of law relating to theft, stealing shall no longer remain a crime,
nevertheless it would still entail public indignation. Thus
“although the name of the behaviour would be changed yet the
behaviour and social reaction to it would still remain the same,
because the social interests damaged by the behaviour would
still remain unchanged”. Sociologists assert that every crime
involves three essential elements, namely,
(i) Values that are appreciated by the law-makers who are
politically dominant;
(ii) Conflict of interests in society due to environmental
variations;
(iii) Use of force and coercive measures by the offenders.
Sociologists contend that like any other social behaviour the
criminal behaviour also results from certain environmental
conditions. Therefore, the variations in crime-rate are due to
variations in social organization under different systems.
_____________________________________________
Social Disorganization Theory
This theory pre-supposes that criminals are a product of
society. Social change is inevitable in a dynamic society and
though not bad in itself, it results sometimes in disharmony,
conflict and cultural dichotomy. This is specially true when the
social change happens to be of a fast pace. This kind of
unnatural pace obviously is inevitable to lead to disorderly
social change. The impact of sociological factors is so great on
persons that they either shun criminality or embrace it,
depending on their environment and immediate social
conditions. Social change may in such a situation, produce
what is called ‘social disorganization’.
The term social disorganization was used to describe the
disruptive impact of life in a strange new environment. It was
defined as the decrease of the influence of existing rules of
behaviour on individual members of the group. As Wirth has
noted referring to a community as “disorganized” implies some
criteria by which an organized society may be identified.
Personal disorganization and social disorganization are two
distinct phenomena. According to Thomas, social organization
is not co-extensive with individual morality nor does social
disorganization correspond to individual demoralization.
Social disorganization has been defined as a decrease of the
influence of exiting social rules upon individual members of the
group. This phenomenon is different from the violation of social
rules by individuals, because that is something normally
expected in even relatively stable societies where not much
damage is possible due to effective social sanctions, including
criminal law. Social disorganization may be due to cultural
conflicts between different values of different sections of
society.
A general flow of showing the development to a stage of social
disorganization:
Industrialization, urbanization leads to migration to cities →
Leads to change in life style → Lessening of family control &
social sanctions → Tensions for want of food, cloth, housing,
medical, educational facilities lack of employment → Migrators
are stronger → Less fear of detection → Increase in Crime.
W.I. Thomas said that social disorganization occurs due to
rapid change in technologies due to:
(1) Sudden booms and depression;
(2) Crises & natural disasters.
This theory focus on Five conditions in environment”
(i) Deteriorated neighborhood;
(ii) Inadequate social control;
(iii) Conflicting social values;
(iv) Inadequate supply of necessities in life; and
(v) Breakdown of social institution like family.
Thomas isolated several possibilities in looking at society and
community, or a group:
1. Social disorganization can exist without persona
disorganization. The “Creative man” is one who appears during
a period of disruption and realizes his interest by violating
traditional rules and incorporating into his own life plan
elements of schemes which are competing with traditional
ones.
2. Personal disorganization can exist without social
disorganization. Personal demoralization can occur in the happy
village. An individual may fail to realize his life goals precisely
because of his conformity and lack of flexibility. This
personality type was labeled the ‘philistine’.
3. Personal disorganization may result from social
disorganization. This is the response of “behaviour” personality.
Disorganization, according to Thomas, can occur as a result of
excessive rapid change, like an increase in the volume and
density of population. It might also be caused by its opposite,
sudden decline in population, or rapid changes in technology or
material culture might generate a temporary state of
disorganization. Sudden booms, depressions, crisis, and natural
disasters may cause a state of social disorganization. It may
result due to cultural conflict between different values of
different sections of society. The difference may be between
old and new values local and imported values and traditional
values imposed on a community by the law or administrative
organs. In this context two studies made in the Thomas
relation to the Polish peasants settled in the U.S.A. and the
Eskimos are reproduced as illustrations to demonstrate a vast
difference in the old and new value system among the most
disorganized group of Polish Peasant settlers in the US. The
members of the group no longer had the urge to continue to
cherish their status on the basis of taste for luxurious things
like fashionable clothes and liquor which they were not willing
to share with the other members of the group. Under the
influence of new environment the “we-attitudes” based on
peasant family values changed into highly hedonistic
individualistic attitude.
The phenomenon of social disorganization was conceived of as
part of a three-state process-organization, disorganization, and
reorganization. The total theory heralded the emergence of
newer, more complex and more cohensive forms of
reorganization.
Normally the process of disorganization and organization may
be thought of as in reciprocal relationship to each other, and so
co-operating in a moving equilibrium of social order towards an
end vaguely or definitely regarded as progressive. So far as
disorganization points to reorganization and makes for more
efficient adjustment, disorganization must be conceived not as
pathological, but as normal.
Another corollary of disorganization is the variable of political
stability as measured by political scientists. Park maintains the
political stability is one index of organization in a community.
The social disorganization may also emerge sometimes due to
‘cultural leg’. Cultural leg can be described as an unequal
growth of the various components of culture in a society
resulting in a gap between those components.
_____________________________________________
Theory of Differential Association
Theory of Criminality based on ‘differential association’ has
been presented by Sutherland. The theory asserts that crime is
learnt by association with others. According to him, behavioural
learning takes place through personal contacts with other
people. This learning, in the context of crime, involves both the
techniques for committing the crimes and the attitudes and
rationality or justification for their committal. The theory of
differential association centers round the theme that a person
becomes criminal if there is an excess of influence on him
favourable to the violation of the law as compared with the
influences which are unfavourable to violation of law.
Sutherland does not think that delinquents are disorganized
and hence has no use for the expression ‘social
disorganization’. He prefers instead the term ‘differential group
organization’. In other words, according to Sutherland, there
are in fact two types of organization operating within the
community, namely, organization for criminal purposes and
organizations against criminal activities.
Sutherland maintained that so far as the learning process was
concerned, it was the same for both criminal and non-criminal
conducts. Some techniques relating to the commission of
crimes may be learnt through association with criminals alone
but others are acquired in the normal course of education since
it is not the difference between criminal and non-criminal
techniques as such which matters but the particular use made
of them. So what is actually needed to develop criminal
behaviour in many of them. So what is actually needed to
develop criminal behaviour in many instances is not the crime-
committing technique but some sort of rationalization to use
the techniques for criminal purposes. This rationalizing capacity
is learnt through association with criminals which gives him
definitions justifying his deviant conduct.
The elements of Sutherland’s theory are summarized in nine
propositions:
(1) Criminal behaviour is learned.
(2) Criminal behaviour is learned in interaction with other
persons in a process of communication.
(3) The principal part of the learning of criminal behaviour
occurs within intimate personal groups.
(4) The learning of criminal behaviour includes (a) techniques
of committing a crime, (b) the specific direction of motives,
drives, rationalization, and attitudes.
(5) The specific direction of motives, drives, etc. is learned
from definitions of the legal codes as favourable or
unfavourable.
(6) A person becomes delinquent because of an excess of
definitions favourable to violation of law over definitions
unfavourable to violation law. (This is the principle of
differential association).
(7) Differential association may vary in frequency, duration,
priority, and intensity.
(8) The process of learning criminal behaviour by association
with criminal and anti-criminal patterns involves all of the
mechanisms that all involved in any other learning.
(9) Although criminal behaviour is an expression of general
needs and values, it is not explained by these needs and
values, since non-criminal behaviour is an expression of same
needs and values.
The significant feature of Sutherland’s theory is his claim that
pro-criminal sentiments are acquired, as are all others, by
association with other individuals in a process of social
interaction.
Various criticisms and question have been directed to this
theory. Firstly, it has been said that no all those persons who
come in contract with criminals become criminal themselves.
Quite rightly, Sutherland found the answer in the counteracting
influence of contact with anti-criminal groups. In other words,
the definitions provided by the contract with anti-criminal
groups happen to be more persuasive in their case than the
ones provided by the contact with criminals. Another connected
question posed is that once initiated, why does not criminal
behaviour increase indefinitely until everyone is a criminal?
Sutherland answered it on the basis of his concept of
differential group organization. The measures taken by the
anti-criminal group organization, as a result of the threat of
crime posed by the opposite group, are effective enough to
curb the delinquent tendencies.
Another criticism has been that Sutherland meant “contract”
when he used the term “association” and thereby implied
physical proximity with the criminal. According to him most
individuals are believed to identify themselves with both
criminal and non-criminal persons in the course of their lives.
Hey may have first-hand experience in delinquency groups.
They may identify themselves with criminal roles presented in
fiction, movies, television, or the press. They may react against
any criminal group.
Principal criticism against the theory is that it does not
adequately take into account the “personality traits”,
“personality factors” or “psychological variables” in criminal
behaviour. Sutherland took this kind of criticism seriously, and
in an early period he stated that this theory probably would
have to be revised to take account of personality traits.
_____________________________________________
Anomie
Anomie is a vital term vaguely defined and generously applied.
The literal meaning of the word ‘anomie’ is normlessness.
Durkheim formulated the concept and used it in particular to
explain the behaviour which he referred as anomie suicide.
Human beings have unlimited desires, the only control to these
being provided by society and public opinion which lose much
of their efficacy in time of economic changes and moral
stresses and strains. A high rate of both suicide and homicide is
to be found in an anomie-ridden society.
Robert K. Merton, the other sociologist who based his theory on
‘anomie’ used the concept a bit differently that the needs and
desires which went beyond that could be achieved through
socially approved channels in societies which profess to be of
egalitarian character capable of giving equal opportunities to
all.
It is paradoxical, though true, that sometimes the very norms
which are laid down by society for achieving conforming
behaviour tend to produce just the opposite result in the form
of criminal behaviour. According to Merton’s theory of anomie,
delinquency ( and other forms of deviance) is a response to the
unavailability of conventional or socially approved routes to
success, and is characteristic of lower-class persons since the
social structure strains the cultural values, making action in
accord with them readily possible for those occupying certain
status within the society and difficult or impossible for others.
The term anomie was used by Merton for a condition in a social
system when cultural regulation of behaviour is weakened. IN
other words, what is encouraged in society is “success” and so
goals are more important than the means to achieve those
goals. Merton gives the example of sports and games, the way
they are sometimes played in the USA. Winning the match is
more important than the spirit of the game.
Messer Rosenfelt said that every person in USA has a goal to
achieve and means to achieve it. There are two perception to
achieve a goal. Firstly, “It is playing the game that matters not
the winning” and Secondly “It is winning that matters not the
game”. People who adopt the goals of the society but lack the
means to achieve that seeks alternatives such as crime. He
points out how competition for success create conflict & crime.
He suggest that it is social conditions & not personality can
account for crime. Material goals are the goals for the day.
His theory was criticized on :
(i) Goals & Means: This is not a universally acceptable factor.
(ii) Choice of Crime: Why is it when some persons have some
goal. Same goals cannot be achieved it then tend to adapt
different means.
(iii) Dwindling with age: Why most young criminals dissent
from crime when they grown in age.
The position obtained in contemporary Indian society does not
appear to be an absolute misfit in the “scale of anomie”. The
scale comprises five items related to an individual’s perception
of his social environment and his perception of his own place
within that environment. They are as follows:
1. The perception that community leaders are indifferent to
one’s needs.
2. The perception that little can be accomplished in society
which is seen as basically unpredictable and lacking order.
3. The perception that life’s goal are receding rather than being
realized.
4. A sense of futility.
5. The convention that one cannot count on personal associates
for social psychological support.
An analysis of the forgoing socio-cultural and economic
explanation of crime suggests that no single theory can offer
an adequate explanation for crime causation. It , therefore,
follows that delinquent behaviour is an outcome of the
combination of a variety of factors which create situation
conductive to criminality. With the widening of social
interaction due to the impact of industrialization, urbanization,
etc there is need for community control.
_____________________________________________

Economic Approach

In the words of Carl Marx economic conditions determine the

general character of the social, political and spiritual processes
of life and with the change of economic foundations, the entire
superstructure is also rapidly transformed. Legal philosophers
of all ages have accepted that economic conditions have a
direct bearing on crime. Economic structure is one of the
important causes of criminality. Poverty gives rise to hunger,
misfortune, diseases and anger, which destroys the personality
of an individual and makes him irresponsible to do undesirable
acts. Under the circumstances, he is forced to lend himself into
criminality. The economic factor has a close bearing on
criminality and crime-rate rises when poverty increases in
times of economic depression.
Marxists Theory:
Marxists have propagated a view that crimes emerge solely out
of capitalist domination of society. Under such society the
upper class can exploit the weak, put them in physical danger,
and transgress their human rights either with impunity or with
only lighter punishment. The Marxists believe that unfair
division of labour and capital would eventually lead to a conflict
between rich and the poor and finally to the overthrow of
capitalist ideals. In result, communism would replace
capitalism. Criminal law in a capitalist regime is an instrument
of the State and ruling class to perpetuate the capitalist social
economic order and it is meant for the protection of their
interest. Under these circumstances, the poorer sections of
society remain oppressed through the coercion of legal system
and their discontentment generates crimes. It is not only with
the collapse of capitalist society that the problem of criminality
can be solved.
The Marxists, however, differ in their view regarding the effect
of economic conditions on criminality. In their opinion the two
vary in inverse proportion. This view has, however, been
refuted on the ground that despite constant economic progress
throughtout the world, the crimes are constantly recording an
upwards trend. The real cause for rise in crime-rate with
economic prosperity is perhaps the capacity of people to spend
more in manipulating escape from arrest and detection. A large
number of crimes go undetected and unreported for want of
lack of initiative on the part of victim in getting the offender
prosecuted or due to the manipulative tactics of the criminal.
Present conditions have created a peculiar situation wherein
crimes are rampant whether the economic conditions are
favourable or unfavourable.
Bongers’ Theory of Economic Structure and Crime:
The most notable and stimulating contribution to criminology in
understanding the relation of crime and economic structure has
been made by Bonger who sought to explain the phenomenon
of crime on the basis of the Marxist approach. He emphasized
the importance of environmental factors not only in the case of
criminals but also in great men. Bonger insisted that the
criminal was a product of the capitalistic system which, instead
of promoting altruistic tendencies among members of the
society, created selfish tendencies. The system based on
‘capitalistic exchange’ is motivated by profit element. In such a
system each member tries to get the maximum from others in
return of the minimum from himself. This attitude of the
capitalist, according to Bonger, affects the attitudes of the
proletariat as well.
Bonger defined crime in the formal sense as, ‘A crime is an act
committed within a group of persons who form a social unit,
and whose author is punished by the group as such, or by
organs designed for this purpose, and this by a penalty whose
nature is considered more severe than that of more
disapprobation.
Bonger identifies many evils in the capitalist system which are
conducive to the spread of criminal behaviour i.e. child labour,
long hours of work by workers, illiteracy.
According to Bonger motives for economic crimes can be
subdivided into three: they could be (i) crime of poverty, (ii)
crimes of cupidity and (iii) professional crimes. All three he
attributed to social arrangements which encouraged of
extremes poverty and wealth
He believed that poverty was a major cause of such crimes as
theft. Cupidity he placed next in importance. Theft from this
motive tended to increase rather diminish in times of
prosperity. This was because at such times people’s want
increased whilst many of them were unable to satisfy them in a
lawful manner. The difference between rich and poor had been
greatly increased by capitalism and the wider the difference the
more cupidity was stimulated.
Professional criminals were not responsible for a high
proportion of theft as such but the more serious offences such
as burglary and robbery were almost exclusively theirs,
professional crime in the training of children to steal by their
parents, who saw it merely as “work” and had no qualms of
conscience about it.
While establishing a co-relationship between economic
conditions and crime, Bonger drew the following conclusions:
(1) He tried to establish a co-relationship between poverty and
delinquency.
(2) He further observed that the influence of economic
conditions on delinquency is essentially due to the capitalistic
economy which breeds disparity and leads to unequal
distribution of wealth.
(3) In an economic system based on capitalism, economic cycle
of inflation and deflation are frequent. Inflation gives rise to
bankruptcy and insolvency with the result the persons affected
thereby are forced to lead an anti-social life and some of them
may even resort to criminality.
(4) Another peculiar feature of capitalistic economy is the
competitive tendency among entrepreneurs. When efforts fails
to meet the competition, unlawful devices such as violation of
laws are committed by the manufactures. This gives rise to
increase in crime-rate.
(5) There is yet another danger of the capitalistic economy
which contributes to enormous increase in crimes. The
employment of children and women furnishes soothing ground
for criminality despite effective legislative restriction banning
their improper utilization in industrial establishments.
Employment of children as labour is a potential cause for
crimes because a child who earns spend his money on
undesirable items, which ultimately drag him into the criminal
world.
The theory propounded by Bonger no doubt indicates one very
important basis of the cause of criminality. He, however,
ignores the tangle of interrelationships among social, cultural,
economic, political, religious and other sets of factors.
According to his theory, the phenomenon of crime should have
come to an end, or at least controlled to a very great extent in
socialist countries like the USSR, which is not at all the factual
position.
He said that the mode of production based on private property
and individual profit was essentially inimical to the
development of social instincts and of links of reciprocity.
Under it the economic mechanism itself made man more
egoistic and hence “more capable of crime”. Once the producer
found himself with a surplus above subsistence level which he
could exchange with his neighbour instead of sharing with
them freely, each tried “to get as much profit for himself as
possible and consequently to make the other lose,”. From this
sprang lying and fraud. The next setup was the development of
forced services, ranging from slavery to wage labour, leading
masters to see their servants as mere instruments, servants to
resort to dissimulation in self-defence. From this also came
envy and hatred on the part of the poor, pride and domination
on that of the rich. To Bonger the conclusion was inescapable
that the egoistic tendencies of the capitalist system inhibited
the development of man’s social instinct.
The proponents of the Marxist view, however, hold that crime
cannot be eliminated in socialist societies within a short period
after a new economic order has been introduced. It will need a
long time for the “remnants” of criminality to disappear
altogether, which can happen only after “the remnants of the
bourgeois way of thinking are eventually eliminated”.
There is no doubt, however, that poverty does play an
important role in delinquency and the capitalistic system may
also contributive to poverty in certain sections of the society
and give values which determine success in life purely in terms
of money.
Criminal statistics showing high representation of lower groups
may not necessarily give the exact relative positions of
deviants from different socio-economic strata because of
differential police action in different situations. The changes of
a crime committed by someone from the upper strata going
unreported to the police or lack of action by the establishment
are higher than in case of persons from lower economic strata.
Inadequate housing is one of the most serious problems in
such delinquent areas which creates tension between members
of the family living in a cramped atmosphere.
In spite of Bonger’s generalization regarding the effect of
economic conditions on crime many critics have opposed his
views on different grounds. Prof. Cohen criticized Bonger’s
economic theory of criminality on the following grounds:
(1) Research to establish a relationship between their
respective occupations and frequency of committing crime has
shown that poverty has no correlation with the frequency of
convictions. Cohen observed that honesty is not the monopoly
of only the rich persons, many people lead an honest and
upright life despite their poor financial conditions.
(2) Tarde, subscribes that a large number of crimes occur not
due to commercial or industrial progress but because of
inequitable distribution of wealth and man’s lust for luxurious
life. The acquisitive tendency in man often tempts him to
commit illegal acts.
(3) Bonger’s assertion that poverty is an essential condition of
crime because a person is always prepared to do anything to
get relief from his miserable economic condition, seems
untenable in the light of the fact that even the wealthiest
persons who are usually big industrialists, businessmen,
financiers or monopolists often resort to dishonest means such
as black-marketing, tax-evasion, etc., despite their huge
earnings. This obviously does not support Bonger’s theory of
criminality founded on poverty-delinquency relationship.
(4) Bonger’s view that capitalistic trend of society is
responsible for criminality is also not wholly true. The socialistic
policies launched with a view to eliminating excessive profits
and other evils of capitalistic economy have equally failed to
yield favourable results.
From the foregoing analysis, it may be inferred that crimes are
committed by persons because of their subjective tendency
therefore, economic changes through State control and
nationalization cannot inject a change in this human tendency.
It is not the poverty alone that generates crime but it is the
poverty in relation to other factors such as acquisitive tendency
in man and his craze for gaining more and more wealth that
tends to make him a criminal.

Putative Approach

Punishment is a means of social control. H.L.A. Hart had

defined “punishment” in terms of five elements:
(i) It must involve pain or other consequence normally
considered unpleasant.
(ii) It must be for an offence against legal rules.
(iii) It must be an actual or supposed offender for his offence.
(iv) It must be intentionally administered by human being
other than the offender.
(v) It must be imposed and administered by an authority
constituted by a legal system against which the offence is
committed.
The three components must be present “if punishment is to act
as reasonable means of checking crime. First “speedy and
inescapable detection and inescapable detection and
prosecution must convince the offender that crime does not
pay. Second, after Punishment, the offender must have “a fair
chance of a fresh start.” And Third, “the State which claims the
right of punishment must uphold superior values which
offender can reasonably be expected to acknowledge.
The concept of punishment is that of inflicting some sort of
pain on the offender for his violation of law.
Prof. Jerom Hall has set out a detailed description of
punishment as, “First punishment is a privation, Second, it is
coercive, Third, it is inflicted in the name of State, it is
“authorized”. Fourth, punishment presupposes rules, their
violation, and a more or less formal determination of that,
expressed in a judgment. Fifth, it is inflicted upon an offender
who has committed a harm, and this presupposes a set of
values by reference to which both the harm and the
punishment are ethically significant. Sixth, the extent or type
of harm and aggravated or mitigated by reference to the
personality of the offender, his motives and temptation.”
Criminal may be described as a monster or be pictured as a
hunted animal or as the helpless victim of brutality. As a result
of the changing attitudes, three types of reactions can be
discerned in various societies. The first is the traditional
reaction, of a universal nature, which can be termed as the
punitive approach. It regards the criminal as a basically bad
and dangerous sort of person and the object under this
approach is to inflict punishment on the offender in order to
protect society from his onslaughts. The second approach, of
relatively recent origin, considers the criminal as a victim of
circumstances and a product of various factors within the
criminal and society. Finally, there is the preventive approach
which instead of focusing attention on particular offenders,
seek to eliminate those conditions which are responsible for
crime causation. It should, however, be understood that the
three approaches are not mutually exclusive. Not only do they
overlap with each other, but sometimes they may coexist as
parts of the overall system in a society.
The punitive approach has its focus of attention on the damage
caused to the victim and danger posed to society. The criminal
is treated as something incapable of being reformed.
Crassey on the basis of his “scapegoat hypothesis”; the
criminal is made a scapegoat to give relief or gratification to
the members of the community. This relief or gratification is
due to their sense of freedom from their own guilt feeling about
the crime, as a result of punishment given to the offender. This
is based on the theory that all human beings have criminal
propensities though in most cases they may not be reflected in
actual behaviour. According to another view, the hostile
reaction to the criminal works as a bond between non-criminal
members of the community. The bond represents the
reassertion of moral principles common to the members of the
society and serves as a reminder of taboos to all of them.
It is only the extreme and pure retributionists who perceive
punishment as inherently good, i.e. per se. Justification for
punishment is also argued on the basis of ‘social contract’
which creates a ‘give and take’ situation. Individual rights and
benefits, it is only reasonable and inevitable that individuals
curtail their freedom vis-à-vis others and in the event of their
failure to do so, punishment must be inflicted on them.
The rationalization of punishment may be divided into two
classes, based on retributive and utilitarian theories.
Retributionists assert that the infliction of punishment is
justified in itself since offenders should be given their just
deserts, the utilitarians regard punishment as an evil which
should be used only if it serves some purpose like deterrence
from commission of crime.
Retribution Theory:
Retribution has been regarded as a very important feature in
the punitive scheme. According to Hegel, punishment ‘annuls’
the crime. It aims at restoring the social balance disturbed by
the offender. The offender should receive as much pain and
suffering as inflicted by him on his victim to assuage the angry
sentiments of the victim and the community. Various theories
have sought to justify the retributive aspect of punishment in
theological, aesthetic and expiatory grounds. Retaliation fulfils
a religious mission of punishing the offender, it re-establishes
the social harmony affected by the offence and the offender’s
guilt is washed away through suffering.
The most forceful presentation of the case for retribution is the
justification for punishment by Kant. He expressed his
opposition to the utilitarian concepts. The Kantian objection is
that a mere use of a person for some social purpose violates
his moral autonomy and he, therefore, finds the justification of
punishment in retribution alone.
Some other supporting arguments for retribution may be
summarized as follows:
(i) Retribution connects the offender to correct values; it sends
the message to the wrongdoer that what he did was wrong.
Retribution should, therefore, not be confused with revenge.
(ii) It would be unfair to victims if there is no retribution
against the wrongdoers.
(iii) It would also be unfair to the law-abiding citizens if the
offenders get undeserved benefit through their criminal acts.
These postulates of retributivism have been criticized. It has
been asked, for instance, that if individuals have no moral right
to exact retribution, how can a group of individuals in the
society acquire such a moral right. There is some merit, at
least theoretical, in the expiation argument that the offender
gets an opportunity of making a new start after the
‘atonement’. The practical sang is that it becomes extremely
difficult for a person to start with a clean slate after being
convicted of an offence. The chances of his being admitted to
society as a normal human being are certainly affected after
undergoing punishment.
The theories of punishment based on retribution have also
been sought to be defended on the ground that punishment
reflects denunciation of the criminal and his act by the society.
Such an approach tends to invert the priorities since
punishment should not be for the sake of denunciation alone
but a deserved punishment does serve as a denunciation.
According to Hart, we do not live in society in order to
condemn though we may condemn in order to live. It follows,
therefore, that the concept of denunciation belongs to the
utilitarian rather than to the retributive theories.
It appears from the above discussion that the retribution
theory in its purest form, which provides that the penal system
should be designed to ensure that offenders atone by suffering
for their offences and their sufferings should be of the same
magnitude as that of their victims, has lost much of its ground
in the context of modern and more enlightened views on the
functional value of penal law.
In modern society the idea of revenge in the punishment is
rejected and the modern concept is hate the sin not the sinner.
There are some other ways to achieve the social solidarity and
the need is to develop such measures where a person will not
commit a crime. The various studies have established that the
social structure and the functioning of the social system is
more responsible for a crime than an individual. Modern
criminology states that it is important to protect the interest. A
criminal after his release should not become an enemy of
society. But still there are certain expectations where the
retributive punishment can be considered necessary.
Utilitarian Theory:
The utilitarian view punishment as a means to achieve certain
ends with the aid of criminal law. Punishment must serve as an
instrument for reducing crime either by deterring the offender
and others from doing similar acts in future or it should prevent
the commission of offences by incapacitating the offenders.
Reformation of the offenders through punishment is also
sought to be achieved, though the efficacy of the punitive
approach in the reformation of the offender is extremely
doubtful.
Utilitarians accept punishment only for achieving ‘good
consequences’ but there may be disagreement as to the nature
of the ‘good consequences’. Three issues to be considered in a
given situation are as to whether the punishment would be:
(i) Useless;
(ii) Needless; and
(iii) Involving more evil than what it purports to solve.
Deterrent Theory:
One of the Utilitarian rationalizations which are advanced to
justify punitive reaction is that punishment acts as a deterrent
to the offender punished and also to others in the community.
It has been suggested that the so-called deterrent approach is
a veiled form of the retributive spirit. Deterrence is usually
defined as the preventive effect which actual or threatened
punishment of offenders has upon potential offenders. The
deterrence theory finds no justification for action in a past
offence, which has more than a certain evidential importance,
and it depends upon consequences of punishment other than
the immediate satisfaction given to victims of offences and
other. It need not ignore these satisfactions.
Punishment is justified to control individual crime and to have a
deterring effect on other criminals. According to Bentham,
general prevention ought to be the chief end of punishment as
it is its real justification.
Bentham thus goes on to suggest that punishment may help in
control of crime in three ways:
1. By making it impossible or difficult for a criminal to commit
the offence again, at least in certain ways;
2. By deterring both offenders and others;
3. by providing an opportunity for the reforming of offenders.
Bentham and other supporters of the deterrence theory
considerably under-estimated the number of offenders whose
punishment is unlikely to have an acceptable deterrent effect.
Efficacy of the deterrent aspect of punishment can be pointed
out with reference to the Islamic law of crimes as applied in
Saudi Arabia, the only country where the system with all its
severity is being applied even now. It is reported that crimes
are almost unknown in Saudi Arabia and it is a common sight
in towns that people leave their shops open and unattended
while they are away from them for some time. It may be
pointed out, however, that several other factors might be
operating for creating such a situation, like economic security
and religious injunctions. Further, it may be observed that
deterrence is not the only purpose of criminal law but has to
maintain some other values as well.
Reformative/ Rehabilitation Theory:
Modern penology recognizes that punishment is no longer
regarded as retributive or deterrent, but is regarded as
reformative or rehabilitative.
Reformation is defined as “the effort to restore a man to
society as a better and wiser man and a good citizen.
Progressive criminologists across the world will agree that the
Gandhian diagnosis of offenders as patients and his concept of
prisons and hospitals-mental and moral- is the key to the
pathology of delinquency and the therapeutic role of
‘punishment’”. It is, thus, clear that crime is a pathological
aberration, that the criminal can ordinarily be redeemed, that
the State has to rehabilitate rather than avenge.
Punishment is, therefore, said to be justified because- (1) It
provides an opportunity for State to take steps to reform
offenders and so control crime. (2) It is both a deterrent and
an effective condemnation, and as such it has reformative
consequences. (3) The ultimate aim of the punishment is to
“resocialise” the offender to “readjust” him to society, to
“rehabilitate” him to “change him deep inside”.
According to reformatists, a criminal is to be studied, like a
patient in his entire socio-economic milieu, and nor in isolation,
to understand causative factors leading to criminality and then
attempt be made to reform or treat and rehabiliate the
offender.
There are only few aspects of the treatment problem which are
to be observed in practice while employing the reformative
techniques to treat the offenders. And as such there will still be
a little element of the retributive and deterrent aspects of
punishment because of the very inevitability of punishment of
some sort after crime. But, others say that in view of the
changed penal philosophy, the bulk of the component of
punishment will naturally be reformation and rehabilitation with
a view to refit the offender as a useful member of society.
Modern society considers various objectives in order to control
crime and it considers imprisonment a means to attain the twin
aims, i.e., reform and treatment of the criminals so that they
will commit no crime after their release. Society also seeks
protection from criminals. And for this purpose prison isolates
criminals from the community for a certain time. All these
objectives-reformation, retribution and deterrence, within the
prison result in cross conflict.
In James V. Bennet, it was observed that on the one hand,
prison are expected to punish, on the other, they are supposed
to reform. They are expected to discipline rigorously at the
same time they teach self-reliance. They are built to be
operated like vast impersonal machines, yet they are expected
to fit man to live normal community lives. They operate, in
accordance with a fixed automatic routine, yet they are
expected to develop individual idleness despite the fact that the
one of their primary objective is to teach men how to earn an
honest living. To some, prisons are nothing but country clubs,
catering to the whims and fancies of the inmates. To others,
the prison atmosphere seems charged only with bitterness,
rancor and an all pervading sense of defeat.
Conflict between reformative, deterrent and retributive
measures have been a controversial issue from the point of
correctional administration as well as treatment of the
offenders. There is a definite need to protect society by
segregating those who are so dangerous as to require a close
custody, control and supervision.

Preventive Theory:
This has also been called ‘Theory of disablement’ as it aims at
preventing the crime by disabling the criminal. In order to
prevent the repetition of crime the offenders are punished with
death, imprisonment for life or transportation of life.
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 the criminal, the
community protects itself against anti-social acts which
endanger social order in general or person or property of its
members.
This theory has been criticized by many writers on the ground
that prevention of crime can also be done by reforming the
behaviour of criminals.
It is clear that neither theory can be adopted as sole standard
of punishment for perfect penal code. The correct view,
therefore, seems to be that the perfect system of criminal
justice is the result of a compromise between the principles of
all the theories.
Protection of society must be the object of law which can be
achieved by imposing appropriate punishment. A sentence or
its system which does not work properly can undermine
respect of law. In order to deter other potential criminals and
to meet social necessity, the imposition of appropriate
punishment is desirable. Although it is not possible to
formulate any ready-made formula in this respect but object
should be to see that the crime does not go unpunished and
victim of the crime and society have satisfaction that justice
has been done to them. Aggravating factors cannot be ignored
and mitigating circumstances should get due weightage.
White Collar Crimes

Certain professions offer lucrative opportunities for criminal

acts and unethical practices which hardly attract public
attention. They carry on their illegal activities with impunity
without the fear or loss of prestige or status. The crimes of this
nature are called ‘white-collar crimes’ and are essentially an
outcome of competitive economy.
The concept of White Collar Crime is usually associated with
Sutherland. He pointed out that besides the traditional crimes
there are certain anti-social activities which the persons of
upper strata carry on in course of their occupation or business.
These activities for a long time were accepted as a part of
usual business tactics necessary for a shrewd professional man
for his success in profession or business.
Sutherland further pointed out that a white-collar crime is more
dangerous to society than ordinary crimes because the financial
loss to society from white-collar crimes is far greater than the
financial loss from burglaries, robberies, larcenies etc.
These white collar crimes by their very nature are such that the
injury or damage caused as a result of them is so widely
diffused in the large body of society that their gravity in regard
to individual victim is almost negligible. White collar crimes are
committed by persons of status not for need but for greed.
White collar criminality thrives because of public apathy to it.
The reason for this public insensibility is that firstly such
criminals operate within the strict letter of the law and exploit
the credibility of their victims; and secondly the legal battles
involved are dragged out for years in the courts, with the result
the gravity of the offence is completely lost in the oblivion.
That apart, the impact of white collare crime is so much
diffused in the community that the individual victims are only
marginally affected by it, and, therefore, they conveniently
forget all about it.
There is yet another important point in context of white collar
crime. The members of the community themselves contribute
to the commission of various white collar crimes willingly or
unwillingly. For instance, illegal gratification to public servants
to get the work done quickly such crimes cannot be committed
unless there is a demand for illegal favour from consumers and
they are actively involved in the deal.
Sutherland’s definition of white collar crime has evoked
criticism from certain quarters. The lack of definite criteria for
determining who are ‘persons of respectability and status’ has
made Sutherland’s definition of white collar crime most
controversial. It seems likely that what Sutherland’s meant by
this is absence from convictions for crimes other than white
collar crimes. The element of ‘high social status’ as used in the
definition also leads to confusion. Some critics have suggested
that such crimes should have been called as ‘occupational
crimes’ instead of being termed as ‘white collar crime’.
Tappan observes that treating persons committing white collar
crime as criminals would mean deviating from legal definition
of crime inasmuch as personal value considerations of the
administrator would gain primary in place of precision and
clarity of legal provisions in deciding such cases. Sutherland,
however, justifies the special procedure of trial for white collar
criminals by administrative agencies on the ground that it
would protect the offender from stigma of criminal prosecution.

Another criticism is that it includes even those violations of law

which are not committed in course of occupation or profession
and these violations do not necessarily belong to upper strata
of society or the so-called ‘prestigious groups. For example, tax
evasion is not committed only by person of high status but it
can be committed by persons belonging to middle or even
lower strata of society.
Of all the factors, the economic and industrial growth through
out the world has perhaps been the most potential cause of
increase in white collar crimes in recent years. Law Commission
in its report observed that modern scientific and technological
developments and monopolistic trends in business have led to
enormous increase in white collar crimes.
The problem of white-collar criminality has its root in
competitive business community which tries to oust their rival
competitors in order to earn huge profits. Sometimes such
crimes may also be committed merely for the sake of retaining
existence in the competitive business.
One more reason for the multiplicity of white collar crime is
relatively high socio-economic status of white collar criminals.
They belong to an influential group which is powerful enough to
handle their occupation tactfully and persons affected thereby
hardly know that they are being victimized.
The recent development in information technology particularly
during the closing years of the twentieth century, have added
new dimensions to white collar criminality. There has been
unprecedented growth of a new variety of computer dominated
white collar crimes which are commonly called as cyber crimes.
India is equally in the grip of white collar criminality. The
Report of Vivin Bose Commission of Inquiry into the affairs of
Dalmia-Jain group of companies highlights how these big
industries indulge in white collar crimes such as fraud,
falsification of accounts, tampering with records for personal
gains and tax-evasion etc.
The case of M.H. Hoskot V. State of Maharashtra illustrates the
attitude of the lower judiciary towards white-collar criminals.
Haskot, a reader in Saurashtra University, was found guilty of
an attempt to concoct degree certificates of the Karnataka
University. The sessions court awarded him a single day’s
imprisonment. The court justified the token punishment on the
basis of the background of the offender, his not having criminal
tendencies as such and the unlikelihood of his indulging in
criminal activities in future. On appeal by the State, the High
Court enhanced the period of imprisonment to three years.
While upholding the sentence awarded by the High court, the
Supreme Court termed the sentence awarded by the session
court as ‘incredibly indiscreet’.
The Supreme Court has made its approach of white-collar
crimes absolutely clear in the above observation. It is however,
submitted that Hoskot’s case was truly speaking not a case of
white-collar criminality, according to the meaning given to the
term by Sutherland and others.
Besides prescribing stiffer punishments for white-collar
offenders, the Supreme Court has also held in a number of
cases that liberal interpretation must be given to the penal
laws dealing with social welfare legislation to see that the
legislative object is not defeated. In Murlidhar Meghraj Loya V.
State of Maharashtra, the Court observed that ‘it is trite that
the social mission of food laws should inform the interpretative
process so that the legal blow may fall on every adulterator.
Any narrow and pedantic literal and lexical construction likely
to leave loopholes for this dangerous criminal tribe to sneak
out of the meshes of the law should be discouraged. For the
new criminal jurisprudence must depart from the old canons,
which make indulgent presumptions and favoured constructions
benefiting accused person and defeating criminal statues
calculated to protect public health and the national’s wealth.’
Again in P.K. Tejani V. M.R. Dange, a case under the
Prevention of Food Adulteration Act, the Supreme Court said
that ‘ it is trite law that in food offences strict liability is the rule
not merely under the Indian Act but all the world over. Section
7 casts an absolute obligation regardless of scienter, bad faith
and mens rea. It you have sold any article of food contrary to
any sub-section of Section 7, you are guilty. There is no more
argument about it.’
Some of the remedial measures for combating white collar
criminality may be stated as follows:
1. Creating public awareness against these crimes.
2. Special tribunals should be constituted with power to award
sentence of imprisonment.
3. Stringent regulatory laws and drastic punishment for white-
collar criminals may help in reducing these crimes.
4. A separate chapter on white-collar crimes and socio-
economic crimes should be incorporated in the IPC by
amending the Code so that white-collar criminals who are
convicted by the Court do not escape punishment because of
their high social status.
5. White-collar offenders should be dealt with sternly by
prescribing stiffer punishments keeping in view the gravity of
injury caused to society because of these crimes.
6. There is an urgent need for a National Crime Commission
which may squarely tackle the problem of crime and criminality
in all its facets.
7. Above all, public vigilance seems to be the cornerstone of
anti-white collar crime strategy. Unless white-collar crimes
become abhorrent to public mind, it will not be possible to
contain this growing menace.

Capital Punishment

Death Sentence has been used as an effective weapon of

retributive justice for centuries. The fear of being condemned
to death is perhaps the greatest deterrent which keeps an
offender away from criminality. The justification advanced is
that it is lawful to forfeit the life of a person who takes away
another’s life. Thus, the motive for death penalty may indeed
include vengeance which is a compensatory and reparatory
satisfaction for an injured party, group or society.
Penologists in India have reacted to capital punishment
differently. Some of them have supported the retention of this
sentence while others have advocated its abolition on
humanitarian ground. The retentionists support capital on the
grounds that it has a great deterrent value and commands
obedience for law in general public. The abolitionists, on the
other hand, argue that enormous increase in homicide crime-
rate reflects upon the futility of death sentence.
The Law Commission of India in its 35th Report said on a
consideration of the issues that capital punishment should be
retained in the present state of the country. Supporting the
view of the Law Commission, the Supreme Court in Bachan
Singh V. State of Punjab, observed that notwithstanding the
views of the abolitionist to the contrary, a very large segment
of people still firmly believe in the worth and necessity of
capital punishment for the protection of society.
In this case appellant was convicted for the murder of his wife
and he underwent life imprisonment. On being released from
jail he came to stay with his cousin Hukam Singh. This was
objected to by Hukam Singh’s wife and son and the appellant,
therefore, developed a grievance against the family. While
Hukam Singh and his wife were away in another town the
appellant taking advantage of the situation killed his son and
his two sisters and grievously injured a third one in an
unusually brutal manner. He was awarded death sentence.
High Court conformed his death sentence.
With regard to the application of Art. 19 of the constitution in
cases under section 302 IPC the Supreme Court observed that
section 302 prescribes death or imprisonment for life as
penalty for murder. It cannot reasonably or rationally, be
contended that any of the rights mentioned in Art. 19(1) of the
Constitution confer the freedom to commit murder or, for the
matter of that, the freedom to commit any offence whatsoever.
Therefore, penal laws, that is to say, laws which define
offences and prescribe punishment for the commission of
offences do not attract the application of Art.19. In pith and
substance, penal laws do not deal with the subject-matter of
right enshrined in Art. 19(1). The Supreme Court observed that
they are of the opinion that the deprivation of freedom
consequent upon an order of conviction and sentence is not a
direct and inevitable consequence of the penal law but is
merely incidental to the order of conviction and sentence which
may or may not come into play, that is to say, which may or
may not be passed. In view of it, the Supreme Court was of the
opinion that Sec. 302 of the Penal Code does not have to stand
the test of Art. 19(1) of the Constitution.
It may be inferred that neither retention nor abolition of death
sentence can be justified in absolute terms. The desirability of
this punishment, by and large, depends on the nature of the
crime and the circumstances associated therewith. The
classification of different types of homicides can be made on
the basis of social environment and personality of the offender.
Therefore, the efficacy of death penalty in such cases should be
judged in the light of the surrounding conditions.
The Report of the Convention of International Congress of
Criminal Law concluded that the general consensus was clearly
in favour of retention of death penalty though its use may be
restricted to “rarest of rare cases”. Justice Krishna Iyer justified
retention of capital punishment though to be used sparingly.
Justice HIdayatullah observed that the doctrine of “rarest of
rare case” evolved in the Indian jurisprudence for the use of
death penalty is capable of discounting the possible errors and
abuse of this sanction and, therefore, a dispassionate approach
to this problem in the context of the mounting crime was most
necessary.
The Law Commission in its report observed that even after all
the arguments in support of abolition of capital punishment are
taken into account, there does not remain a residium of cases
where it is absolutely impossible to enlist any sympathy on the
side of the criminal. The Commission further expressed a view
that ‘retribution’ involved in capital punishment does not
connote the primitive concept of ‘eye for an eye’ but is an
expression of public indignation at a shocking crime, which can
better be described as ‘reprobation’.”
The Law Commission strongly feels that capital punishment
acts as an effective, deterrent “which is the most important
object and even if all objects were to be kept aside, this object
would be itself furnish a rational basis for its retention.” In its
concluding remarks, the Commission observed that having
regard to the peculiar conditions prevalent in India and the
paramount need for maintaining law and order in the country,
we cannot risk the experiment of abolition. This is perhaps the
most appropriate approach to the problem of capital
punishment so far Indian Criminal justice system is concerned.
In the IPC eight provisions provides for death sentence for
certain specified offences. The Supreme Court noted that IPC
contained fifty-one sections which prescribe life imprisonment
for various offences. The basic difference between Section 302
and the other sections was that whereas under those sections
life imprisonment is the maximum penalty which can be
imposed, under Section 302, it is the minimum sentence which
has to be imposed. The Court, however, made it clear that the
ruling in Bachan Singh V. State of Punjab upholding the
constitutional validity of death sentence could not govern death
penalty prescribed in the IPC.
The members of the judiciary are sharply divided on the crucial
issue of life or death sentence. Those who support abolition
argue that death penalty is degrading the contrary to the
notion of human dignity; it is irrevocable and an expression of
retributive justice which has no place in modern penology. The
retentionists, on the other hand, justify capital punishment as a
social necessity having a unique deterrent force.
After the Amendment Act 1955, the Judge had the discretion to
commute the sentence of death to that of life imprisonment but
in case he considered the imposition of death sentence
necessary he had to state the reasons as to why a lesser
penalty would not serve the ends of justice.
The CrPC also contains a provision regarding death sentence.
Section 354(3) of the Code provides that while awarding the
sentence of death, the Court must record “special reasons”
justifying the sentence and state as to why an alternative
sentence would not meet the ends of justice in the particular
case. Justice Krishna Iyer observed that the special reasons
which the section speaks of provides reasonableness as
envisaged in Article 19 as a relative connotation dependent on
a variety of variables, cultural, social, economic and otherwise.
The CrPC further requires that the sentence of death imposed
by Sessions Judge can be executed only after it is confirmed by
High Court. That apart, Section 235(2) of the Code further
casts a statutory duty upon the court to hear the accused on
the point of sentence. Section 302 casts a heavy duty on the
Judge, of choosing between death and imprisonment for life for
the person found guilty of murder, is now expected to be
discharged in a highly responsible manner by complying with
the provisions contained in CrPC so that the principle of natural
justice and fair play holds its away in the sphere of sentencing.
These provisions also help the Judge to individualise sentencing
justice and make it befitting to the crime and the criminal.
Besides the statutory provisions, the Constitution of India also
empowers the President and the Governor of the State to grant
pardon to the condemned offender in appropriate cases.
A perusal of some of the Supreme Court decisions involving
death penalty would reveal that sudden impulse or provocation
uncontrollable hatred arising out of sex indulgence, family feud
or land dispute, infidelity of wife or sentence of death hanging
over the head of the accused for a considerable long period of
time due to law’s delay, have been accepted as extenuating
circumstances justifying lesser penalty of life imprisonment
instead of death sentence.
Following the ruling laid down in Bachan Singh, the Supreme
Court upheld the death sentence of the accused in Machi Singh
V. State of Punjab, on the ground that the murder committed
was of exceptionally depraved and heinous in character and the
manner of its execution and its design would put it at the level
of extreme atrocity and cruelty. The accused in the instant case
has killed two innocent and helpless women. Their Supreme
Court opined that the ‘rarest of rare’ cases doctrine was clearly
attracted in this case and that the sentence of death was
perfectly justified.
While deciding this case the Apex Court realized that the ‘rarest
of rare cases’ doctrine had caused ‘inner conflict’ in the minds
of the Judges because it was left much to the judicial discretion
to decide whether the case fell within the category of rarest or
rare case or not. Hence, the Supreme Court laid down a five-
point formula based on the manner in which the murder was
committed and the motive, nature and magnitude of the crime
and the personality of the victim. The factor which the Court
was expected to take into consideration for this purpose may
be briefly stated as follows:
1. The manner in which the offence of murder was committed.
If it was committed with extreme brutality such as burning the
victim alive or cutting body into pieces, it would be a fit case to
be considered as rarest of rare case.
2. When the manner reveals depravity and meanness of
murdered e.g. crime being committed for material gain.
3. When the murder is socially abhorrent such as bride burning
or killing of Harijan.
4. When the magnitude of the offence is enormous as in case
of multiple murders.
5. When the victim is an innocent child, a helpless woman, or a
reputed figure i.e. the case of a political murder.
The Court however, cautioned that these guidelines should not
be applied too literally. Instead, the Judges should interpret the
provisions rationally to ascertain whether ‘collective conscience
of the community has been shocked and it will expect the
Judge to award the death penalty.
The Supreme Court decision in Kishori V. State of Delhi,
consequent to the assassination of Mrs. Indira Gandhi, large
scale rioting and arson took place in different parts of Delhi.
The Charges against four accused persons including Kishori
were framed. Having been sentenced to death by the trial court
and confirmed by High Court the appellant filed SLP in the
Supreme Court challenging the judgment of the High Court.
During the hearing, it was stated that Kishori was allegedly
involved in several incidents which gave rise to seven cases,
four of which ended in his acquittal and in three cases, he was
sentenced to death. The Supreme Court observed that the law
is well settled by reason of the decision of this Court that
capital punishment can be imposed in the rarest of rare cases
and if there are aggravating circumstances. Experts in
criminology often express a view that where there is mob-
action, as in the instant case, there is diminished individual
responsibility unless there are special circumstances indicating
that a particular person had acted with any predetermined
motive such as use of weapon not normally found.
In the instant case, all the witnesses speak that there was a
mob attack resulting in the death of three persons. Though the
appellant is stated to be responsible for inflicting certain knife
injuries, yet it is not clear whether those injuries themselves
were sufficient to result in death of the deceased person. The
acts of the mob of which the appellant was a member cannot
be said to be the result of an organization of group indulging in
planned violent activities formed with any prupose or scheme
which can be called as an organized activity. The Supreme
Court, therefore, decided that “on the totality of the
circumstances, this is not a case which can be called “a rarest
of rare case” which warrants imposition of maximum sentence
of death. Hence while confirming the conviction of the appellant
on charges framed against him, the sentence is reduced from
capital punishment to that of life imprisonment and with this
modification, the appeal stands dismissed.
In Mohd. Chaman V. State of Delhi, the accused had committed
rape on a minor girl aged one and a half years when her
parents were away from home. As a result of this brutal and
ghastly act the child suffered several injuries and died. The trial
Court convicted the accused and sentenced him to death which
was confirmed by High Court. On appeal, the Supreme Court
held that, (1) the extreme penalty can be inflicted only in
gravest cases of extreme culpability; (2) In making choice of
the sentence, in addition to the circumstances of the offence,
due regard must be paid to the circumstances of the offenders
also.
The Court held that in exercise of its discretion in the above
cases the court shall take into account the following
circumstances_
(i) That the offence was committed under the influence of the
extreme mental or emotional disturbance.
(ii) The age of the accused. If the accused is young or old, he
shall not be sentenced to death.
(iii) The probability that the accused would not commit criminal
acts of violence as would constitute a continuing threat of
society.
(iv) The probability that the accused can be reformed and
rehabilitated.
(v) That in the facts and circumstances of the case the accused
believed that he was morally justified in committing the
offence.
(vi) That the accused under the duress or domination of
another person.
(vii) That the condition of the accused showed that he w as
mentally defective and that the said impaired his capacity to
appreciate the criminality of his conduct.
In the instant case the crime committed is undoubtedly serious
and heinous and reveals a dirty and perverted mind of a person
who has no control over his carnal desires. The case is one
which deserves humanist approach and therefore capital
sentence imposed against appellant is commuted to
imprisonment for life.
In Edigma Anamma V. State of A.P., the appellant was
convicted of double murder, of a woman and her tender child,
because of the jealousy generated by the fact that the
deceased woman had developed amorous relationship with the
same man, a widower, with whom the appellant had already
been carrying on an affair. The stabbing of two persons was
planned and ghastly in nature and careful steps were taken to
destroy the evidence by attempting to burn the body of the
deceased woman. The Supreme Court observed to justify its
preference for life imprisonment to capital sentence. The Court
said that here the criminal’s social and personal factors are less
harsh, her femininity and youth, her unbalanced sex life and
expulsion from the conjugal home being the mother of a young
boy-these individually inconclusive and cumulatively marginal
facts and circumstances-tend towards award of life
imprisonment.
The proper approach to the problem, perhaps will be that
capital punishment must be retained for incorrigibles and
hardened criminals but its use should be limited to ‘rarest of
rare cases’. In view of the present deteriorating law and order
situation in India, total abolition of death sentence would mean
giving a long rope of dangerous offenders to commit murder
and heinous crimes with impunity.
The Supreme Court in Allauddin Mian V. State of Bihar has
stressed on the penological aspect of death sentence and
observed that provisions of the CrPC require the sentencing
Judge to state reasons for awarding death sentence and giving
an opportunity to the condemned person to be heard on the
point of sentence, satisfy the rule of natural justice and fair
play.
In this case the accused persons came with deadly weapon in
the house of his target. On seeing the target they shouted to
kill him. The person ran into a room to arm himself where his
wife prevented him. At that time two daughters of his
daughters were playing outside the room. Having failed to get
him, accused gave farsa blow on the head of the daughters and
killed them.
In the instant case, the Apex Court noted that the trial Judge
had not attached sufficient importance to mandatory
requirements of the above provisions and the High Court
confirmed the death sentence without having sufficient material
placed before it on record to know about the antecedents of
the accused, his socio-economic conditions, and impact of
crime etc. which rendered the rationale of the Judgment
doubtful.
In Anguswamy V. State of Tamil Nadu, appellants had a quarrel
with some members of a community. A constable came to
inquire. He tried to caught the appellants. Both the appellants
inflicted injures on different parts of the body of police
constable and he died. The Trial Court awarded the death
penalty which was allowed by High Court.
Here the Supreme Court observed that the trial court failed to
take into consideration several relevant factors. AS there was
no immediate need for their arrest, no report was made
against the appellants and no case was registered against hem
for the commission of any offence. The deceased acted over-
zealously and attempted to apprehend the appellants. Since
the appellants felt that they were being unjustly treated by the
deceased and caused the injuries. It can not be said that the
attach was pre-planned. It was rather sudden and actuated by
a desire to free themselves. It, therefore, follow that the
murder can not be said to belong to the rarest of rare category
warranting the sentence of death.
The death penalty is no doubt unconstitutional if imposed
arbitrarily but it if administered rationally, objectively and
judiciously, it will enhance people’s confidence in criminal
justice system.

Probation
Probation is the ‘submission of an offender while at liberty to a
specified period of supervision by a social caseworker who is an
officer of the court.’ Probation of offenders has been widely
accepted as one of the non-institutional methods of dealing
with corrigible offenders, particularly the young offenders and
the first offenders. It aims at rehabilitation of offender by
returning them to society during a period of supervision rather
than by sending them into the unnatural and socially unhealthy
atmosphere of prisons. The offender is allowed to remain in the
community and develop as a normal human being in his own
natural surroundings. With the help of advanced techniques of
social case-work, the probation offender endeavours to bring
about the desired change in offenders attitude to life and his
social relationship with the community.
The release of offenders on probation is treatment device
prescribed by the court for persons convicted of offences
against the law, during which the probationer lives in the
community and regulates his own life under conditions imposed
by the court or other constituted authority, and is subject to
supervision by a probation officer.
The system of probation involves restriction on the liberty of
probationer and refrains him from disapproved behaviour, or
conversely, compels him to perform certain required acts which
maybe irksome or even painful to him. The basic purpose is to
keep the delinquent away from evil consequences of
incarceration and offer him an opportunity to lead socially
useful life without violating the law.
Probation is often misconceived by some people as an easy let-
off or a form of leniency and not a punishment. But this notion
is rather misleading. Probation, whether it is for juveniles or
adults, permits a more normal social experience than
institutionalization and makes possible varying degrees of
control over delinquents together with the option of sentencing
him to an institution if he violates probation conditions. In
other words, probation enables the delinquent to maintain
contact with his family and other social agencies. It means a
less routinised and more self-directed existence. Unlike
imprisonment, it makes the offender the probationer to keep
himself away from criminogenic atmosphere of prison and earn
his living rather than leading an idle and wasteful life. He does
not remain a burden on his family or society because he can
earn his living himself. In short, probation offers an opportunity
for the probationer to adjust himself to normal society thus
avoiding an isolated and dull life in the prison.
The actual selection for release on probation depends on the
careful investigation of personal case-history and social
circumstances of the offender. The investigation is done by a
Probation Officer who prepare a pre-sentence report to find
before the trial court prior to the final disposal of the case. The
system of probation involves conditional suspension of
punishment.
According to Howard Jones, the following conditions must be
fulfilled before allowing the benefit of release on probations to
an accused person:
(1) No punishment should be imposed initially;
(2) The offender should be given a definite period to redeem
himself;
(3) During this period, delinquent should be placed under
supervision of a probation officer for two obvious reasons:
a. In order to keep the court informed about his progress; and
b. To help him to make the best use of the opportunity given to
them.
(4) If the offender responds favourably, his initial crime should
be deemed to have been scrapped, but if he fails to do so, he
maybe brought back to court and sentenced for the original
crime as also for any other crime he might have committed.
It is thus evident that probation is not a “let-off” as alleged by
some critics because the probationer must either respond
favourably to reformation or suffer imprisonment later.
The Supreme Court spelt the object of the Probation of
Offenders Acts is to stop conversion of youthful offenders into
stubborn criminals as a result of their association with
hardened criminals of mature age in case of youthful offenders
are sentenced to undergo imprisonment in jail. Modern
Criminals jurisprudence recognizes that no one is born criminal
and that a good many crimes are the result of socio-economic
milieu. Although not much can be done for hardened criminals,
yet a considerable emphasis has been laid on bringing about
reform of young offenders not guilty of very serious offense by
preventing their association with hardened criminals. The Act
gives statutory recognition to the above objective. Probation is
designed only for those who have prospects to reform.
The Probation of Offenders Act contains elaborate provisions
relating to probation of offenders which are made applicable
through out the country. The Act provides four different modes
of dealing with youthful and other offenders in lieu of sentence
subject to certain conditions. These include:-
(1) release after admonition;
(2) release on entering a bond on probation of good conduct
with or without supervision, and on payment by the offender
the compensation and costs to the victim if so ordered, the
courts being empowered to vary the conditions of the bond and
to sentence and impose a fine if he failed to observe the
conditions of the bond;
(3) persons under 21years of age are not to be sentenced to
imprisonment unless the court calls for a report from the
probation officer or record reasons to the contrary in writing;
(4) the person released on probation does not suffer a
disqualification attached to a conviction under any other law.
Thus it would be seen that the provisions of the Act are not
confined to Juveniles alone, but extend to adults also. Again,
provisions of the Act are not confined to offences committed
under the IPC but they extend to offences under other laws.
The higher courts have been empowered to grant probation in
appropriate cases, which was denied to the accused by the
lower court. They may also cancel probation granted by the
trial courts.
The appropriate stage at which probation order may be made
by a court is at the time of pronouncement of judgment. The
Judge may make such an order straightway without calling for
a report from the probation officer or he may prefer to call for
a report. However, it is always advisable to call for a report
from the probation officer because at times material available
on record in course of trial is hardly sufficient for the presiding
Judge to make up his mind on the point whether the accused
should be admitted to the benefit of release on probation or
not. The court must record a clear finding about the age of the
offender after recording necessary evidence.
Besides the Probation of Offenders Act the provisions of Section
360 and 27 of the Cr.P.C. and Juvenile Justice Act also provide
for the release of certain offenders on probation.
(i) Section 360 of the Cr.P.C. provides the rationale of
protection which is extended to young offenders. Firstly, the
section excludes certain types of offenders from the purview of
the Probation of Offenders Act. Secondly, the section prescribes
certain age-limit for offenders to be admitted for release on
probation; and thirdly, the section explicitly provides that
probation applies only to the first offenders. Law suggests a
selective application of the probation service to only those
offenders who are likely to respond favourably to the
rehabilitative process.
(ii) Section 27 of Cr.P.C. provides that any offence not
punishable with death or imprisonment for life, committed by
any person who at the date when he appears or is brought
before the court, is under the age of sixteen years, may be
tried by the court of a Judicial Magistrate or by any Court
specially empowered or any other law for the time being in
force providing for the treatment, training or rehabilitation of
youthful offenders. It must be noted that the age-limit of a
juvenile was raised from 15 to 16 years to avoid inconsistency
with the provisions of law contained in the earlier Children Act
and it is now 18 years under the Juvenile Justice Act.
(iii) The Juvenile Justice Act enunciates the measures for
custody and control of destitute and neglected children and
also provides of the protection and treatment of delinquent
children in need of care and protection as also the children who
are uncontrollable and victims of one or the other offence.
(iv) The Juvenile Justice Act further provides for the release of
children who have committed offences, on probation of good
conduct and placing them under the care of their parents or
guardians or other fit persons executing a bond, with or
without sureties to be responsible fro good behaviour and well
being of the juvenile for any period not exceeding three years.
Offenders whether below 21 or above 21 years of age are
equally entitled to avail the benefit of release on probation of
good conduct or after admonition. The Court is competent to
release a previous convict on probation if it thinks it proper to
do so having regard to the circumstances of the case including
the character of the offender and nature of the offence.
The final verdict as to whether an offender deserves to be
admitted to he benefit of release on probation or not, lies with
the court. The Judge has to use his discretion in the matter
most judiciously.
In State of M.P. V. Bhola, it was observed that it indicates the
intention of the legislature that the benefit of release on
probation for good conduct in prison is to be made available
not to all but to “certain prisoners” meaning prisoners of a
particular class. Thus they can be classified in relation to the
offences committed by them for which they are sentenced.
Reformative system of punishment by releasing prisoners on
the basis of their good conduct in prison and for tuning them
out as good citizens after they serve out their periods of
sentences is not to be resorted to indiscriminately without
reference to the nature of offence for which they are convicted.
It is open to the legislature to lay down a general policy
permitting reformative method of punishment but by limiting
its application to less serious crimes. Gravity of offence is an
integral dimension in deciding whether a prisoner should be
released or not. If we see that offences mentioned in rule 3(a),
in the category of exclusion therein are such serious or heinous
offences which are against community and society in general
where even release on probation may be found hazardous
because of the possibility of the crime being repeated or the
prisoner escaping. Habitual offenders or those dealing in
explosive substances or involved in dacoities and robberies are
treated as criminals guilty of heinous crimes who deserve to be
treated differently from other offenders guilty of less serious
crimes. The offenders could be classified thus reasonably with
the object to be fulfilled of reformation of those prisoners who
show prospectus of some reforms. Classification can also be
made between habitual and non-habitual offender or between
corrigibles and incorrigibles.
In Abdul Qayum V. State of Bihar, the appellant aged sixteen
years pick-pocketed rupees fifty six. Despite probation officer’s
favourable report for release on probation, he was sentenced to
six months’ rigorous imprisonment by the trial court because of
his association with a seasoned pick-pocket. On appeal,
however, the Supreme Court directed the trial court to place
him under probation.
The Supreme Court observed that there was no warrant for
inferring that the appellant was his associate. A reference to
the report of the Probation Officer would show that the accused
was approximately 18 years of age and physically and mentally
normal. Though he was illiterate he had a vocational aptitude
for tailoring and was working in Bihar Tailoring Works. He was
interested towards his work as a tailor and behaves properly
with his father and brothers and has normal association with
friends. There is no report against the character of the
offender, no previous conviction has been proved against him
prior to this case and in the circumstances the release on
probation may be a suitable method to deal with him.
In another case the Orissa High Court shows even much more
latitude to young offenders in Jogi Nayak V. State. In this case,
the accused, a young boy of 15 years, was found guilty of
robbery and sentenced to undergo rigorous imprisonment for
one year. The boy had removed jewellery from the body of a
young girl after making her unconscious by inflicting grievous
injuries to her. In this case, it was held that probation could
not be granted since the offence was punishable with life
imprisonment. But strangely enough, after holding that boy
could not be released on probation, the High Court ordered his
release by saying that the accused was a young boy and a
longer stay in the company of criminals would only turn him
into hardened criminal and the sentence was reduced to the
period already undergone. It was ironical that by placing a
restricted construction on the statute, the court found
probation inapplicable and let the boy loose, unsupervised, on
society.
The Supreme Court took a strict view of the case involving sex-
perversity and refused to allow the benefit of release on
probation to the accused in Smt. Devki alias Kalia V. State of
Haryana. In this case the petitioner was found guilty of
abducting a teenage girl of 17 years and forcing her to sexual
submission with commercial object and was convicted and
sentenced by the trial court for three years imprisonment. The
sentence was confirmed by the High Court. On appeal, the
Supreme Court refused to allow the benefit of probation to the
accused keeping in view the moral turpitude and heinousness
of the offence.
In Rajbir Raghubir Singh V. State of Haryana, the accused a
government servant was convicted and placed on probation for
good conduct. It was held by the Supreme Court that in
particular facts of the case, the conviction should not affect his
service.
The historical decision in Ishwar Das V. State of Punjab,
however, made a departure from the Court’s liberal approach
to offenders found guilty of offences involving public welfare. A
tendency to keep such anti-social activities outside the purview
of the probation law is clearly noticed in the subsequent
decisions. Though the Supreme Court allowed the benefit of
probation in the instant case, leaving a note of caution, it inter
alia observed:
Adulteration of food is a menace to public health. The
Prevention of Food Adulteration Act has been enacted with the
aim of eradicating that anti-social evil and for ensuring purity in
the articles of food. The Courts should not lightly resort to the
provisions of the Probation of Offenders Act in the case of
persons above 21years of age found guilty of offence under the
Prevention of Food Adulteration Act.
The Supreme Court decision in Pyarali K Tejani V. M.R. Dange,
further supports the judicial trend for cautious approach to the
application of probation in law to adulteration cases. In this
case the accused was convicted for selling adulterated “supari”
with prohibited sweeteners under the Prevention of Food
Adulteration Act. Disallowing the benefit of probation to the
appellant Krishna Iyer observed:
The kindly application of the probation principle is negatived by
the imperatives of social defence and the probabilities of more
proselytisation. No chances can be taken by society with a man
whose anti-social operations guised as a respectable trade,
imperial numerous innocents. He is a security risk. Secondly,
those economic offences committed by White collar criminals
are unlikely to be dissuaded by the gentle probationary
process.
It has now been universally accepted that in order to achieve
progressive correctional standards there must be added
emphasis on probation. Its exponents must interpret the
philosophy underlying probation more clearly and initiate a
definite campaign of education that will break down prejudices
against correctional methods and explain their wider
objectives. It is a modern technique in the field of correctional
therapy which must be used extensively for treatment of
offenders.
Despite the criticism of probation from certain quarters, the
fact remains that it is perhaps the only reformative technique
which fully endorses the cause of human dignity. Probation, in
fact, is an opportunity to an offender to “struggle to recapture
self-respect”.

Juvenile Justice

Delinquency is a form of behaviour or rather misbehaviour or

deviation from the generally accepted norms of conduct in the
society. The term Juvenile delinquency refers to a large variety
of disapproved behaviours of children and adolescents which
the society does not approve of, and for which some kind of
admonishment, punishment or corrective measure is justified
in the public interest. It includes rebellious and hostile
behaviour of children and their attitude of indifference towards
society. It may, therefore, be inferred that a juvenile is a
adolescent person between childhood and manhood or
womanhood, as the case may be, who indulges in some kind of
anti-social behaviour, which is not checked, may turn him into
a potential offender. A child might be regarded as delinquent
when his anti-social conduct inflicts suffering upon others.
Every conduct prohibited by statute is not to be taken as an act
of delinquency. Instead, the conduct which tends to constitute
an offence, not only from the legal standpoint but also from the
angle of prevalent social norms and values shall be included
within the meaning of the term delinquency.
Causes of Juvenile Delinquency:
(i) The industrial development and economic growth in India
has resulted into urbanization which in turn has given rise to
new problems such as housing, slum dwelling, overcrowding
etc. The high cost of living in urban areas makes it necessary
even for women to take up outside jobs with the result their
children are left neglected at home. Moreover, temptation for
modern luxuries of life lures young people to resort to wrongful
means to satisfy their wants.
(ii) Disintegration of family system and laxity in parental
control over children.
(iii) Unprecedented increase in divorce cases and matrimonial
disputes is yet another cause for disrupting family solidarity.
(iv) The rapidly changing patterns in modern living also make it
difficult for children and adolescents to adjust themselves to
new ways of life. They are confronted with the problem of
culture conflict and are unable to differentiate between right
and wrong.
(v) Biological factors such as, early physiological maturity or
low intelligence, also account for delinquent behaviour among
juveniles.
(vi) Migration of deserted and destitute boys to slumps brings
them in contact with anti-social. Thus, they lend into the world
of delinquency without knowing what they are doing is
prohibited by law.
(vii) Poverty is yet another potential cause of juvenile
delinquency. Failure of parents to provide necessities of life.
(viii) Besides the aforesaid causes, illiteracy, child labour,
squalor, etc. are also some of the contributing factors.
The English criminal justice administrators have preferred to
deal with it outside the framework of criminal law. Many
reformists feel that delinquency among adolescents is a
transient phase and will disappear as they grow older, hence
they need to be tackled differently.
The impact of western civilization and temptation for luxuries
and pompous life has greatly disturbed the modern Indian
youth. India also seeks to tackle the problem of juvenile
delinquency on basis of three fundamental assumptions:
(i) Young offenders should not be tried, they should rather be
corrected;
(ii) They shold not be punished but be reformed; and
(iii) Exclusion of delinquents i.e. children in conflict with law
from the ambit of court and stress on their non-penal
treatment through community based social control agencies
such a Juvenile Justice Board, Observation Homes, Special
Homes, etc.
Any violation of existing penal law of the country committed by
a child under eighteen years, shall be an act in conflict with law
for the jurisdiction of Juvenile Justice Board.
Juvenile Justice Act, 2000, lays down a separate procedure for
dealing with the neglected and uncontrollable juveniles who
have been termed as “children in need of care and protection”.
The former are to be dealt with the Juvenile Justice Board. The
Act clearly indicate that unlike USA and England, the courts in
India do not have jurisdiction in relation to child in conflict with
law. There is no difference between the contents of delinquency
and an offence. The only difference is that an offence
committed by an adult person is triable in ordinary court
whereas the juvenile who commits a delinquent act is
proceeded against the Juvenile Justice Board through special
procedure.
In the Act a juvenile who has committed an offence is not
addressed as ‘juvenile delinquent’, instead he is called a
‘juvenile in conflict with law’. The object perhaps is to avoid
stigma which the word ‘delinquent’ carries with it in the case of
juvenile offenders.
The trial of a juvenile in conflict with law is held by the Juvenile
Justice Board which has to consider the following issues in
respect of the age of the juvenile before proceeding with the
trial:
(i) whether the person before it i.e. Juvenile Justice Board, is
within the prescribed age of 18 years or not; and
(ii) for the purpose of determining the age, the relevant date is
the date on which the juvenile brought before the Board for
inquiry and proceedings.
The Madhya Pradesh High court in its decision in Sunil &
another V. State, clarified that the Court cannot leave the
determination of age of juvenile entirely on the evidence of
juvenile, but it is required to make an inquiry suo moto. In this
case, the ADJ, had rejected the bail application of the accused
on the basis of ossification test and medical report which
showed that the appellant was not a juvenile. The High Court
ruled that ossification test is not a conclusive proof in the
matter and it is the primary duty of the court to find out
whether applicants are covered by the Juvenile Justice Act or
not and the juvenile may be able to lead any evidence as to his
exact age. “The Court must do participatory justice and
exercise suo moto powers rather than be a silent spectator.”
In the case of Krishna Bhagwan V. State of Bihar, the High
Court observed that for determination of the age of the juvenile
for the purpose of his trial under the Juvenile Act, the relevant
date should be the date on which the offence was committed.
Therefore, where the juvenile accused is within the age limit
prescribed by the Act, he or she should be tried in a Juvenile
Court despite the fact that he exceeded that age limit at the
time when he was brought before the Court for trial.
In a case the Supreme Court ruled if there are two conflicting
views about a particular issue, the one which is beneficial to
the accused be accepted. According, accordingly the accused
be treated as juvenile and be tried under the Juvenile Justice
Act.
In Sanjay Suri V. Delhi Administration, the Supreme Court had
to lady down a duty on the jail authorities that no young
person was to be admitted to an adult jail unless the Court
certified that the person was above the age prescribed for
juvenile offenders. The Supreme Court issued the directive that
in all warrants of detention the age of the detenu must be
specified to ensure that no juvenile is sent to adult prison.
Further, the jail authorities must not accept any warrant unless
age is specified in it.
Section 3 of the Juvenile Justice (Care and Protection of
Children) Act, 2000 which provides that where the court is
satisfied that at the beginning of inquiry, the accused was a
juvenile, his trial under the Act would continue even if he or
she crosses the prescribed maximum age of 18 years during
trial proceedings. Thus the crucial date for determination of age
of the accused to be tried under Juvenile Justice Act would be
the date on which he was produced before the competent
authority or Juvenile Justice Board for inquiry or trial.
In Raghbir V. State of Haryana, The Supreme Court held that
the Haryana Children Act was to prevail over Section 27 of the
Cr.P.C. and even a child accused of an offence punishable with
death or life imprisonment could not be tried by ordinary
criminal courts.
Section 12 of the Act provides that the juveniles should be
released on bail as a general rule and should be sent to jail/
Observation Home only in special cases.
The Juvenile Justice Board may order the release of juveniles in
conflict with law on probation of good conduct and place him
under the care of his parents, guardians or any other person.
Having regard to the circumstances of the case, the case, the
Board may also direct the juvenile to enter into a bond, with or
without sureties. But the period of such order of release on
probation shall not exceed 3 years. Besides, the Board may
order the placement of juvenile in a Special Home.
The Juvenile Justice Board is also empowered to order the
placement of the juvenile found guilty of an offence to be
placed under the supervision of the Probation Officer for a
period not exceeding three years and the Probation Officer
shall submit the periodical report about the juvenile and his
progress in reformation.
The proceedings of the Juvenile Justice Board being of a
confidential nature, their publication is strictly prohibited in the
interest of the juvenile. No newspaper or magazine etc. shall
publish the name, address, photograph or details or particulars
of the juvenile or report of proceedings against him. Any
contravention of this provision shall be punishable with fine
which may extent to one thousand rupees. The Act does not
permit joint trial of a juvenile with a person who is not a
juvenile.
Section 22 of the Act contains special provision in respect of
juveniles who have escaped from Observation Home, Special
Home or from the custody of a person. The section expects a
liberal and sympathetic approach towards such juveniles.
A child in need of care and protection as defined in Section 2(d)
of the Act means a child who is found without any home or
settled place of abode and without means of subsistence or
who is neglected by his parent or guardian or does not have
parent and no one is willing to take care of him etc. The Act
empowers the State Government to constitute Child Welfare
Committees for care and protection of children who are in
need. Act further provides for establishment of Shelter Homes
for destitute and shelterless children.
Four alternative measures for the rehabilitation and re-
orientation of such juveniles and children are suggested in
Section 40 of the Act which are as follows:
(1) Adoption of orphaned, abandoned, neglected or abused
children through institutional or non-institutional means.
(2) Foster care is used for temporary placement of those
infants who are ultimately to be sent to some institution or
individual for adoption.
(3) Sponsorship programme may provide supplementary
support to families, children, home, Special Homes etc, to meet
the needs of the children.
(4) After-care Programme provides necessary supervision and
guidance to juvenile and children after their release from
Children’s Home.
If in the opinion of the competent authority, the presence of
juvenile in conflict with law or child is not necessary in
proceedings against him, it may be dispensed with. The
personal attendance of accused in inquiry or trial is generally
dispensed with keeping in view the nature and position of
parties in the case.
The procedure followed in the proceeding against juvenile
offender under the Juvenile Justice Act, 2000, differs from that
of an ordinary criminal trial, and, therefore, it can be rightly
termed as ‘special procedure’ in view of the following
considerations:
(i) The proceedings cannot be initiated on a complaint from a
citizen of the police.
(ii) The hearing is informal and strictly confidential.
(iii) The juvenile offender while under detention, is kept in
separate Observation Home.
(iv) The young offender may be reprimanded on security or
bond for good behaviour.
(v) The trial of juvenile in conflict with law is usually conducted
by lady Magistrate specially deputed for the purpose.
(vi) The procedure followed in the trial of juvenile in conflict
with law being informal, he has no right to engage the services
of a lawyer in the case.
(vii) No appeal lies against the order of acquittal made by the
Juvenile Justice Board in respect of a juvenile alleged to have
committed an offence. An appeal shall, however, lie against the
order of the Board to the Sessions Court within a period of 30
days whose decision shall be final and there is no provision for
second appeal.
It must be stated that the treatment offered to juvenile
offenders under the Indian law is prompted by humanitarian
considerations but the fact remains that the very concept of
juvenile delinquency goes against the spirit of the law relating
to liberty, which provides that no one can be proceeded against
unless he is charged for some specific offence.
The Juvenile Justice (Care and Protection of Children) Act, 2000
is a comprehensive legislation which contemplates the creation
and institution of authorities for the care, protection and
correction of juvenile delinquents but the manner of
implementation of this welfare legislation is not yet effective in
large parts of India.