2018LLB003 I.P.C Semester 4 Research Paper

INDIAN PENAL CODE
DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY
SABBAVARAM, VISAKHAPATNAM,
A.P., INDIA
PROJECT TITLE:
WHETHER THE SENTENCING ADJUDICATION HAS ANY ROLE TO DECIDE ON

HOW THE CONVICT WOULD SUFFER OR BE REHABILITATED
SUBJECT:
INDIAN PENAL CODE, 1860.
NAME OF THE FACULTY:
Prof. (Dr.) BHAVANI PRASAD PANDA
NAME OF THE CANDIDATE:
AISHWARYA.V.V.BUDDHARAJU
ROLL NUMBER:
2018LLB003
Program:
B.A., LL.B. Hons.
DATE OF SUBMISSION:
11th DECEMBER, 2020.
IMPACT OF SENTENCING ADJUDICATION ON REHABILITATION OF A CONVICT Page 1

INDIAN PENAL CODE
ACKNOWLEDGMENT:
I am highly indebted to my Hon’ble Indian Penal Code Professors, Prof. (Dr.) Bhavani
Prasad Panda for giving me a wonderful opportunity to work on the topic: “whether the
sentencing adjudication has any role to decide on how the convict would suffer or be
rehabilitated”, and it is because of their excellent knowledge, experience and guidance, this
project is made with great interest and effort. I would also like to thank my seniors who have
guided my novice knowledge of doing research on such significant topic. I would also take
this as an opportunity to thank my parents for their support at all times. I express my sincere
gratitude to each and every person who have guided and suggested me while conducting my
research work.

INDIAN PENAL CODE
TABLE OF CONTENTS
1. LIST OF CASES…………………………………………………………………..4
2. SYNOPSIS…………………………………………………………………………5
3. INTRODUCTION…………………………………………………………………8
4. PUNITIVE APPROACH & CONTEMPORARY ROLE OF
PUNISHMENT……………………………………………………………………8
5. PHILOSOPHERS’ OPINIONS’ ON VARIOUS PUNITIVE TECHNIQUES…...9
6. IMPACT OF HARSH SENTENCING PRINCIPLES……………………………10
7. JUSTIFICATION FOR PUNITIVE REACTION………………………………..12
8. WILL SENTENCING ADJUDICATION INFLUENCE
THE LIFE OF THE CONVICT?............................................................................13
9. CRITICISM……………………………………………………………………….17
10. DESTRUCTIVENESS TO THINKING AND BETTERMENT…………………18
11. CRIME AND REHABILITATION: A SMARTER APPROACH……………….18
12. SUGGESTIONS: ESSENTIAL STEPS IN MAKING
CORRECTIONS POLICY WORK ……………………………………………..20
13. CONCLUSION…………………………………………………………………..21
14. BIBLIOGRAPHY………………………………………………………………..23

INDIAN PENAL CODE
LIST OF CASES:
1. Jamal v. State of Uttar Pradesh

2. Ratan Lal v. State of Punjab
3. Shivaji v. State of Maharashtra
4. Sham Sunder v. Puran
5. D.K.Basu v. State of West Bengal
6. Santa Singh v. State of Punjab
7. Jamal v State of Uttar Pradesh
8. Bachan Singh v. State of Uttar Pradesh
9. Machhi Singh v. State of Punjab

INDIAN PENAL CODE
SYNOPSIS:
INTRODUCTION:
The human society is a cooperative endeavour secured by coercion. By coercion we mean a

a a a a a a a a a a a a a a
a state where a recognized authority is compelled to punish individual who contravenes the
a a a a a a a a a a a a
a rules and regulation of the commonwealth. The practice of punishment is necessary for the
a a a a a a a a a a a a a
a maintenance of this social cohesion. Law is one of the important pillars of the state. To
a a a a a a a a a a a a a a a
a administer justice, punishment is needed. There are various theories of punishment which are
a retributive, deterrent, and reformative, preventive. One of the most controversial aspects of
a a a a a a a a a a a
a legal philosophy concerns the justification of specific punishments for criminal violations.
a a a a a a a a a a
a Punishment is a recognized function of all the states. With the passage of time the systems of
a a a a a a a a a a a a a a a a
a punishment have met with different types of changes and modifications. To administer justice
a is an essential function of the state and it is the duty of the state to provide a peaceful
a a a a a a a a a a a a a a a a a a
a environment to its people. Thus, philosophy behind the concept of punishment is not only to
a provide justice to the aggrieved but besides this to maintain security and safety in the society,
a to punish a criminal is not only to give torture to him or to humiliate, but there is a higher
a a a a a a a a a a a a a a a a a a a
a objective to be achieved and that is to establish a peaceful society. The concept of Punishment
a under modern jurisprudence is usually associated with the law of crimes. Society at any stage
a of its growth has never been free from the problem of crime. It is inevitable since; some
a violation of the prescribed code of conduct is bound to occur. Crime in society is universal
a and is inseparable. Lack of punishment creates a society which is incapable of maintaining

a civil order and citizen’s safety. So, punishments must be imposed on law violators.
The origin and growth of administration of justice is identical with the origin and growth of
a man. The social nature of man demands that he must live in society. While living so, man
a must have experienced a conflict of interests and that created the necessity for providing the
a administration of justice. Without it, injustice is unchecked and triumphant and the life of the
a people is solitary, poor, nasty, brutish and short. Social Sanction is an efficient instrument
a only if it is associated with and supplemented by the concentrated and irresistible force of the
a community. Force is necessary to coerce the recalcitrant minority and prevent them from
a gaining an unfair advantage over the law-abiding majority in a State. The conclusion is that
a the administration of justice with the sanction of the physical force of the State is unavoidable
a and admits of no substitute.

a a a a

INDIAN PENAL CODE
OBJECTIVE OF THE STUDY:
The researcher in this research project is enumerating the justifications behind various
punishment techniques that were adopted in the past and present. In this process, the primary
goal is to find out if the sentencing adjudication has any role to play in the suffering or the
rehabilitated life of a convict. The researcher is also trying to convince the readers as to why
the rehabilitative method is more suitable to our current era and the kind of impact it is going
to have on other facets of our daily life.
RESEARCH QUESTIONS:
1. Whether the traditional forms of punishments should remain the exclusive or primary
weapons in restraining criminal behaviour or should be supplemented and even
replaced by a much more flexible or diversified combination of measures of treatment
of a reformative, curative and protective nature?
2. Whether the sentencing adjudication has any role to decide on how the convict would
suffer or be rehabilitated?
SOURCES OF INFORMATION:
1. Paranjape N.V, Criminology, Penology with Victimology, Central Law

Publications,17th Ed., 2018.
2. Malik Krishna Pal, Penology Sentencing Process & Treatment of offenders,
Allahabad Law Agency, 1st Ed., 2006.
3. Siddique Ahmed, Criminology: Problems and Perspective, Eastern Book Company,
Lucknow, 2008
4. Qadri S.M.A, Criminology & Penology, Eastern Book Company, 6th Ed., 2011.
HYPOTHESIS:
Those who view crime from a Restorative Justice perspective see crime as conflict which
creates a breach, a “rent” in the fabric of the community. Rather than the state and its laws at
centre-stage, the focus remains on the disputants and on accountability, responsibility, and
negotiating fitting amends and, to the greatest possible degree, the repair of the harm. Since
crime involves and affects—even erodes—the community, involving and empowering people
to assist in the resolution of criminal conflicts that arise in their communities can reverse that

INDIAN PENAL CODE
trend, reducing the sense that the community is powerless to do anything about the levels of
crime within it. Victim-offender mediation can dramatically change that dynamic.
CHAPTERISATION:
1. INTRODUCTION
2. PUNITIVE APPROACH & CONTEMPORARY ROLE OF PUNISHMENT
3. WILL SENTENCING ADJUDICATION INFLUENCE THE LIFE OF THE
CONVICT?
4. THE CONCEPT OF RESTORATIVE JUSTICE
5. THE CONCEPT OF REFORMATIVE THEORY
6. CRITICISM
7. SUGGESTIONS
8. CONCLUSION
9. BIBLIOGRAPHY

INDIAN PENAL CODE
INTRODUCTION:
Each society has its own way of social control for which it frames certain laws and also
mentions the sanctions with them. These sanctions are nothing but the punishments. The
kinds of punishments given are surely influenced by the kind of society one lives in.
Penology is a multi-disciplinary subject that aims to study and evaluate the application of
penal sanctions to wrongdoers. Some of the major questions which are engaging the attention
of modern penologists are whether the traditional forms of punishments should remain the
exclusive or primary weapons in restraining criminal behaviour or should be supplemented
and even replaced by a much more flexible or diversified combination of measures of
treatment of a reformative, curative and protective nature. And if so, to which categories of
offenders should these improvised measures be applicable and how should their choice in
particular cases be determined? And finally, how could the reintegration of offenders into
society be placed so as to efface the penal stigma and to cut off the supply of potential
recidivists at its source?1 All these issues are subject matter of penology which is considered
as a sister of criminology. It has been generally accepted that the attitude towards crime and
criminal at a given time in a society represents the basic values of that society. Government
has several theories to support the use of punishment to maintain order in society. Penology
studies various of these subjects.
PUNITIVE APPROACH & CONTEMPORARY ROLE OF PUNISHMENT
Reaction to crime has been different at different stages of human civilization and even at
a given time they have been different in various societies. It has been generally accepted that
a the attitude towards crime and criminal at a given time in a society represents the basic values
a of that society.2 There are three types of reactions discernible in various societies:
I. First is traditional reaction, which can be termed as punitive approach. It regards

a criminal as bad, depraved and dangerous person for whom infliction of

a a a a a a a a a a
a punishment is only alternative to eliminate him from the normal society. The
a object under this approach is to inflict punishment on the offender in order to

a protect society from him.

a a a a
II. Second approach considers the criminal as a victim of his circumstances and a
a product of various factors operating within the society. It is of relatively recent

1
Leon Radzinowicz : In Search of Criminology, p.4.
2
S.M.A.Qadri, Criminology & Penology 127 (Eastern Book Company, 6th Ed. , 2011)

INDIAN PENAL CODE
a origin. It considers the criminal as a sick person requiring treatment so it is termed

a as therapeutic approach.
a a a
III. Third and the most recent reaction is preventive approach as it lays emphasis on
a eliminating those conditions which are responsible for crime causation.

a a a a a a a a a
However, it needs to be understood that these three approaches are not mutually exclusive.
They overlap as well as sometimes coexist in society. The punitive approach has its focus on
the damage caused to the victim and the society at the same time. The criminal is treated as
something incapable of being reformed. This approach, even today, remains a potent force
though not many will justify it in the same way, as was done earlier.
However Oxford dictionary defines “Punishment means to make an offender suffer for an
offence.” Sir Walter Moberly while accepting the definition of punishment as given by
Grotious, suggests that punishment presupposes that-
(1) What is inflicted is an ill, that is something unpleasant;
(2) It is sequel to some act which is disapproved by authority;
(3) There is some correspondence between the punishment and the act which has evoked it;
(4) Punishment is inflicted, that it is imposed by someone’s voluntary act;
(5) Punishment is inflicted upon the criminal, or upon someone who is supposed to be
answerable for him and for his wrong doings.3
PHILOSOPHERS’ OPINIONS’ ON VARIOUS PUNITIVE TECHNIQUES:
There were philosophers in the 18th and 19th centuries discussing about the same and trying to
decide which one of the sentencing techniques have preventive nature rather than just being
punitive. Montesquieu criticised French Penal Code and inhumane punishments suffered by
prisoners. During the late 18th century, British philosopher and economist Jeremy Bentham,
who founded the doctrine of utilitarianism, became a critic of penal policy in England. He
applied his philosophy of utilitarianism to crime and punishment. He believed criminals
engage in crime for pleasure and calculate the gains and losses associated with criminal
3
N.V.Paranjape, Criminology, Penology with Victimology 294 (Central Law Publications, 17th Ed., 2018).

INDIAN PENAL CODE
conduct. He proposed that the punishment inflicted should offset the pleasure offenders
achieve from their crimes.4
One of the most influential writers of time, Italian Jurist and economist Cesare Beccaria,
objected to judicial tyranny and injustice, as well as torturous punishments. Beccaria’s work
contained the basic principles of the classical school of criminology. These include-
(1) the best approach to crime is prevention and prevention is maximized by establishing
written legal codes that define prohibited behaviours and punishments for them;
(2) law serves the needs of society rather than enforces moral virtues and therefore should be
limited to the most serious offences;
(3) all persons should be considered innocent until proven guilty;
(4) punishment should be swift and certain, with no regard for personalities or social
characteristics of offenders;
(5) punishment should be retributive and the degree of retribution should fit the seriousness
of the crime.5
IMPACT OF HARSH SENTENCING PRINCIPLES:
Many countries including Canada, England, France and Italy have incorporated Beccaria’s
a a a a a a a a a a
a principles into their legal system and jurisprudence. Throughout history and in many different
a parts of world, societies have devised a wide assortment of punishment methods. In ancient
a times, the sense of fear and ignorance led to barbarous method of treatment of offenders. The
a concept of law and order was not yet known. Basis of punishment was retributive, vengeance
a and deterrent. In medieval period, religion had great impact on the administration of justice
a and penal policy. Punishments were mixed up with the religious notions of cleansing of the
a soul for the reformation of criminal. In modern penology, it has been generally accepted that
a punishment must be in proportion to the gravity of the offence. Reformation and

a rehabilitation becomes more. It must be admitted that the provisions relating to punishment in
a the IPC have become somewhat obsolescent and out of tune with the modern trends in the
a field of penology. The object of punishment in the scheme of the modern social defence is
4
Krishna Pal Malik, Penology Sentencing Process & Treatment of Offenders, 12 (Allahabad Law Agency, 1st Ed.,
2006).
5
Ibid.

INDIAN PENAL CODE
a correction of the wrongdoer and wrecking gratuitous punitive sentence on the criminal whose
a so called act, in many cases, may be mere manifestation of a deep rooted psychosocial
a maladjustment for which society itself may be responsible in a number of ways. It has been
a rightly said that society gets the criminal it deserves. The highest court of the land too has in a
a number of decisions adversely commented upon this archaic nature of the main penal law of
a India. Some attempts have been made recently to modernize our penal system through
a piecemeal legislation. a
In Jamal v. State of Uttar Pradesh,6 observed that in operating the sentencing system, law
a should adopt the corrective machinery or deterrence based on factual matrix. The sentencing
a process should be stern where it should be, and tempered with mercy where it so warrants to
a be. The facts and given circumstances in each case, the nature of crime, the manner in which
a it was planned and committed, the motive for the commission of crime, the conduct of the
a accused, the manner of weapons used and all other attending circumstances are relevant facts,
a which would enter into the area of consideration while awarding the sentence.
In Ratan Lal v. State of Punjab,7 the Hon’ble Supreme Court observed that the criminal
a jurisprudence dealing with the imposition of sentence has undergone a drastic change with the
a enactment of probation of offender’s act which is a milestone in the progress in the modern
a liberal trend of reform in the field of penology. It is the result of the recognition of the
a a a a a a a a a a a a a a a a a
a doctrine that the object of the criminal law is more to reform the individual offender than to
a punish him. a a
In Shivaji v. State of Maharashtra8, Justice Krishna Iyer observed that “two men in there
a twenties thus stand convicted of murder and have to suffer imprisonment for life because the
a punitive strategy of our Penal Code does not sufficiently reflect the modern trends in
a correctional treatment and personalized sentencing. When accused person are of tender age
a then even in the murder case it is not desirable to send them beyond the high prison walls and
a forget all about their correction and eventful reformation. In Sham Sunder v. Puran,9 the
a Hon’ble SC held that in imposing sentence the main consideration is the character and
a magnitude of offence, but the court cannot lose sight of the proportion which must be
6
(2010) 12 SCC 532
a a a a
7
AIR 1965 SC 444.
a a a a
8
1973 Cr.LJ 1783(SC).
a a a
9
AIR 1991 SC 8.
a a a a

INDIAN PENAL CODE
a maintained between the offence and the penalty and the extenuating circumstances which
a might exist in the case. a a a a
JUSTIFICATION FOR PUNITIVE REACTION: a a a
Various justifications have been given to explain human psychology involved in the urge in
a people to punish offenders. Donald R. Crassey tried to answer this on the basis of his
a “Scapegoat hypothesis”. In this the criminal is made a scapegoat to give relief or gratification
a to the members of the community.

a a a a a a
This relief or gratification is due to their sense of freedom from their own guilt feelings about
a the crime, as a result of punishment given to the offender. This is based on the theory that all
a human beings have criminal propensities though in most cases they may not be reflected in
a actual behaviour. If no outlet to such feelings is provided by punishment, even lynching may
a be resorted to by the people. According to another view, the hostile reaction to the criminal
a works as a bond between noncriminal members of the community. The bond represents the
a reassertion of moral principles common to the members of the society and serves as a
a reminder of taboos to all of them. Private vengeance is a source of injustice and inhumanity as
a well as of social disorder.10

a a a a a
Though the idea regarding the necessity may differ, almost all the justifications are offered on
a the basis of “grim necessity”. It is only the extreme and pure retributionists who perceive
a punishment as inherently good. Justification for the punishment is also argued on the basis of
a “social contract” which creates a “give and take” situation. To enjoy individual rights and
a benefits, it is only reasonable and inevitable that individuals curtail their freedom vis-a-vis
a others and in the event of their failure to do so, punishment must be inflicted on them.
The important general principles of punishment are:

a a a a a a a
(1) The system of punishment cannot be based exclusively on the nature of the crimes
a committed, but must be conditioned by the personality of the offenders. The same kind of
a crime may be committed by entirely different types of criminals. Punishment must, therefore,
a be suited to different categories of criminals.

a a a a a a a
(2) Punishment must not only be a reaction against the crime itself but must also aim at
a preventing the offender from committing further crimes. It is, therefore, obvious that if in
10
a S.M.A.Qadri, Criminology & Penology 127 (Eastern Book Company, 6th Ed. , 2011).

INDIAN PENAL CODE
a certain cases the traditional punishment does not fulfill this latter function, it must be replaced
a by some other means.11

a a a a
WILL SENTENCING ADJUDICATION INFLUENCE THE LIFE OF THE

a a a a a a a
a CONVICT?
Reformation of the offender through punishment is also sought to be achieved, though the
a efficiency of the punitive approach in the reformation of the offender is extremely doubtful.
a Utilitarians accept punishment only for achieving “good consequences” but there may be
a disagreement as to the nature of the “good consequences”.

a a a a a a a a a
Three issues to be considered in a given situation are as to whether the punishment would be –
a (i) useless, (ii) needless, (iii) involving more evil than what it purports to solve.12
Preventive Theory – Preventive philosophy of punishment is based on the proposition “not to

a avenge crime but to prevent it”. It presupposes that need for punishment of crime arises
a simply out of social necessities. In punishing a criminal, the community protects itself against
a anti-social acts which endanger social order in general or person or property of its members.
a In England, utilitarians like Bentham, Stuart Mill and Austin supported preventive theory
a because of its humanising influence on criminal law. They asserted that it is the certainty of
a law and not its severity, which has a real effect on offenders.13
The supporters of preventive philosophy recognise imprisonment as the best mode of

punishment because it serves as an effective deterrent and a useful preventive measure. In
India Criminal Procedure Code and Indian Penal Code contains provisions concerning
punishment of attempts and conspiracies to commit crime. Thus detention, deportation,
imprisonment, exile, disablement and death penalty are the chief modes of preventive
punishment by which the wrong doer is removed from the scene. Preventive theory has great
utility for India in the prevailing law and order situation against extremists, terrorists,
secessionists, drug peddlers, smugglers, underworld armed gangs of mafias, criminals and
communalists etc. Who cannot be controlled or reformed by soft and curative methods.
11
Punishment in Indian Legal System,< www.legal services india.com > last accessed 28-11-2020 at 12:01
apm.
12
S.M.A.Qadri, Criminology & Penology 127 (Eastern Book Company, 6th Ed. , 2011).
13
N.V.Paranjape, Criminology, Penology with Victimology 294 (Central Law Publications, 17th Ed., 2018).

INDIAN PENAL CODE
In D.K.Basu v. State of West Bengal,14 the Hon’ble Supreme Court declared that “there can
be no gainsaying that freedom of individual must yield to the security of the state. The right
of preventive detention of the individuals in the interests of security of the state in various
situations has been upheld by the Court. The action of the state, however, must be right, just
and fair. The state terrorism would only provide legitimacy to terrorism. That the terrorist has
violated human rights innocent citizens may render him liable for punishment but it cannot
justify the violation of his human rights except in a manner permitted by law.”
Reformative Theory – With the passage of time developments brought about change in the
criminological thinking. Individualised treatment became the cardinal principle for
reformation of offenders. The reformative view of penology suggests that punishment is only
justiciable if it looks to the future and not to the past. Modern penologists suggest their faith
in reformative justice but they strongly feel that it should not be stretched so far. Salmond
observed though general substitution of reformation for deterrence may seem disastrous, it is
necessary in certain cases especially for abnormals and degenerates who have diminished
responsibility. In reformative treatment, surveillance and close supervision is itself punitive
though it involves no physical pain or suffering.
Gandhiji said that “hate the sin and not the sinner” which should be a guide in the
administration of criminal justice. According to Gandhiji the outlook of the jail staff should
be that of physicians in a hospital. They were to help them to regain their mental health and
not harass them in any way. In this context eminent judge V.R Krishna Iyer’s remarks that “If
every saint has past, every sinner has a future and it is the role of the law to remind both of
this (indeed) the technology of rehabilitation is the key to the manifestation of the divinity of
man. In Sec 361 of Cr.P.C., the sentencing judge has to record special reasons, where an
accused person could have been dealt with under Sec 360 Cr.P.C. or Probation of Offenders
Act or Juvenile Justice Act or any other law for the time being in force for the treatment,
training or rehabilitation of youthful offenders.
The main defect of reformative theory is that it can be applicable to minor offences. It cannot
be applicable to serious crimes like murder or with regard to habitual criminals. Moreover it
is criticized as contrary to the principles of natural justice. The aggrieved may not be
rewarded but the guilty person must not go unpunished. Recent developments in the field of
penology marked the rationalisation of punishment and emphasis on clinical method of
14
AIR 1997 SC 3669.

INDIAN PENAL CODE
treatment of offenders and their rehabilitation. The utility and futility of punishment is to be
judged on the basis of utilitarian principles propounded by Jeremy Bentham. The Hon’ble
Supreme Court in Santa Singh v. State of Punjab, 15observed that “modern penology regards
crime and criminal as equally material when sentence has to be awarded. It turns the focus
not only on the gravity or nature of crime, but also on the criminal and seeks to personalise
the punishment so that the reformist component is also much operative as the deterrent
element.”
In Jamal v State of Uttar Pradesh,16 the Honourable Supreme Court observed that in operating
the sentencing system, law should adopt the corrective machinery or deterrence based on
factual matrix. The sentencing process should be stern where it should be, and tempered with
mercy where it so warrants to be. The facts and given circumstances in each case, the nature
of crime, the manner in which it was planned and committed, the motive for commission of
crime, the conduct of the accused, the nature of weapons used and all other attending
circumstances are relevant facts, which would enter into the area of consideration while
awarding the sentence.”
It is now well settled that the ultimate object of punishment is prevention of crime and
protection of society. It is also widely agreed that no theory of punishment can achieve the
real purpose of punishment singly. As rightly pointed out by Caldwell, “punishment is an art
which involves the balancing of retribution, deterrence and reformation in terms not only of
the Court and the offender but also of the values in which it takes place and in the balancing
of these purposes of punishments, first one and then the other, receives emphasis as the
accompanying conditions change”.
There are number of punishments and out of all forms of punishments “death sentence” or
“Capital punishment” is perhaps the most debated subject among the modern penologists.
Arguments in favour of capital punishment says that it deters the people and other criminals,
a social need, saves the state money, moral war, legal demand, given in the rarest of the rare
cases. Arguments in favour of abolition of capital punishment are that it cannot deter the
criminals and people, not a social need nor save the public money, inhumane and barbaric,
germs of crime are within the society, against reformative theory. The Hon’ble Supreme
15
(1976) 4 SCC 190.
16
(2010) 12 SCC 532.

INDIAN PENAL CODE
Court in Maru Ram’s case observed that “the rehabilitation and reformation of the criminal
a has the main component of the penal policy as social defence.17

a a a a a a a a a a
Though the Supreme Court is advocating time and again the need for reformation of the
a criminal and his restoration to the society, the Court also stressed the need to employ the
a punishment as deterrent and a public denunciation. This stand is evident from the verdict of
a the Supreme Court in Bachan Singh’s case while retaining the death penalty though limiting it
a to “rarest of rare cases” and laid down four principles:

a a a a a a a a a
a (1) The extreme penalty of death need not be inflicted except in grievous cases of extreme
a culpability. a
(2) Before opting of the death sentence the circumstances of the offenders are also required to
a be taken into consideration along with the circumstances of the crime.

(3) “Life imprisonment is the rule and death sentence is exception”.

(4) A balance of aggravating and mitigating circumstances has to be accorded full weightage
a and a just balance has to be struck between the aggravating and the mitigating circumstances
a before the option is exercised. These principles and validity of death sentence were affirmed
a by the Hon’ble Supreme Court in series of cases.

a a a a a a a a a
The Hon’ble Supreme Court held in Machhi Singh v. State of Punjab18 answered the test to
a determine the “rarest of rare” case in which death sentence can be inflicted and in number of
a other cases. The Second optional Protocol to the International Covenant on Civil and Political
a Rights aiming at the abolition of the death penalty. But India is not signatory to this optional
a protocol. Changes in procedure and evidence were introduced from time to time creating
a jurisprudence different in many ways from the conventional approach to crime and criminala a a a a a a a a a a a
a justice. Special laws have been enacted to define new crimes outside the Indian Penal Code.
Despite the fact that traditional methods of deterrent and retributive justice have fallen into
a disuse and they are now substituted by modern reformatory measures, it must be stated that
a excessive reformation is likely to defeat the very object of penology. A balanced penal
a programme justifying deterrence when it is absolutely necessary and reformation as a general

a mode of treatment of offenders would perhaps be the best policy to achieve the desired ends
17
a AIR 1980 SC 2147.
a a a
18
a (1983) 3 SCC 470. a a a

INDIAN PENAL CODE
a of the criminal justice administration. Justice Gulab Gupta of High Court of Madhya Pradesh
a pointed out, “if reformation in fact benefits the society, the conscience of social justice would
a be satisfied but if the reformation accrues to the benefit of the individual alone, social justice
a would remain suffocated. Let this not happen even unwillingly or unknowingly.”
a a a a a a a a a a
a The efforts that are being made in recent years to switch over to e-courts with e-governance
a for e-justice would certainly go a long way in restoring the confidence of people in criminal
a justice system which lost its credibility being too expensive and dilatory. The development of
a ADR mechanism Lok Adalats, plea bargaining and setting up of the fast track courts are some
a of the measures which certainly help strengthening the cause of criminal justice system in
a India.
CRITICISM:
Some people think that punishment as a whole is unhelpful and even harmful to the people
that it is used against. Detractors argue that punishment is simply wrong, of the same design
as "two wrongs make a right". Critics argue that punishment is simply revenge. Professor
Deirdre Golash, author of the book, The Case against Punishment: Retribution, Crime
Prevention, and the Law, states in her book that, We ought not to impose such harm on
anyone unless we have a very good reason for doing so. This remark may seem trivially true,
but the history of humankind is littered with examples of the deliberate infliction of harm by
well-intentioned persons in the vain pursuit of ends which that harm did not further, or in the
successful pursuit of questionable ends.
These benefactors of humanity sacrificed their fellows to appease mythical gods and tortured
them to save their souls from a mythical hell, broke and bound the feet of children to promote
their eventual marriageability, beat slow schoolchildren to promote learning and respect for
teachers, subjected the sick to leeches to rid them of excess blood, and put suspects to the
rack and the thumbscrew in the service of truth. They schooled themselves to feel no pity—to
renounce human compassion in the service of a higher end. The deliberate doing of harm in
the mistaken belief that it promotes some greater good is the essence of tragedy. We would
do well to ask whether the goods we seek in harming offenders are worthwhile, and whether
the means we choose will indeed secure them.19 Golash also makes statements about
imprisonment, Imprisonment means, at minimum, the loss of liberty and autonomy, as well
19
https://www.questia.com/read/117883311/the-case-against-punishment-retribution-crime-prevention
retrieved on 2-12-2020 at 15:11pm.

INDIAN PENAL CODE
as many material comforts, personal security, and access to heterosexual relations. These
deprivations, according to Gresham Sykes (who first identified them) “together dealt 'a
profound hurt' that went to 'the very foundations of the prisoner's being. But these are only
the minimum harms, suffered by the least vulnerable inmates in the best-run prisons. Most
prisons are run badly, and in some, conditions are more squalid than in the worst of slums. In
the District of Columbia jail, for example, inmates must wash their clothes and sheets in cell
toilets because the laundry machines are broken. Vermin and insects infest the building, in
which air vents are clogged with decades' accumulation of dust and grime. But even inmates
in prisons where conditions are sanitary must still face the numbing boredom and emptiness
of prison life—a vast desert of wasted days in which little in the way of meaningful activity is
possible.20
Destructiveness to thinking and betterment:
There are critics of punishment who argue that punishment aimed at intentional actions
forces people to suppress their ability to act on intent. Advocates of this viewpoint argue that
such suppression of intention causes the harmful behaviors to remain, making punishment
counterproductive. These people suggest that the ability to make intentional choices should
instead be treasured as a source of possibilities of betterment, citing that complex cognition
would have been an evolutionarily useless waste of energy if it led to justifications of fixed
actions and no change as simple inability to understand arguments would have been the most
thrifty protection from being misled by them if arguments were for social manipulation, and
reject condemnation of people who intentionally did bad things. Punishment can be effective
in stopping undesirable employee behaviors such as tardiness, absenteeism or substandard
work performance. However, punishment does not necessarily cause an employee to
demonstrate a desirable behavior.21
CRIME AND REHABILITATION: A SMARTER APPROACH
Although criminal justice agencies in Australia have, in recent years, adopted an increasingly
a “get tough” approach, responses to crime that rely on punishment alone have failed to make
a our communities safer. Instead, they have produced an expanding prison system. This has the
a potential to do more harm than good and places considerable strain on government budgets.
a Increasing prison sentences does little to deter criminal behaviour. Longer sentences are
20
Ibid.
21
Milbourn Jr, Gene (November 1996). "Punishment in the workplace creates undesirable side effects".

INDIAN PENAL CODE
a associated with higher rates of re-offending. When prisoners return to their communities, as
a the vast majority inevitably do, the problems multiply. Exposing the limitations of
a punishment In this context, it becomes important to think carefully about public policy
a responses that aim to punish and deter offenders. Psychologists have been studying
a punishment under well-controlled laboratory conditions with both animals and humans for
a a a a a a a a a a
a nearly 100 years. Its effectiveness in promoting short-term behavioural change, or even in
a suppressing negative behaviour, depends on rather specific conditions being in place. For
a punishment to work it has to be predictable. Punishment also has to be applied at maximum

a intensity to work, or else tolerance and temporary effects result. Yet applying very intense
a levels of punishment for many offences goes against our sense of justice and fairness. The
a threat of punishment, no matter how severe, will not deter anyone who believes they can get
a away with it. It will also not deter those who are too overcome by emotion or disordered
a thinking to care about the consequences of their behaviour.

a a a a a a a a
Punishment also has to be immediate. Delayed punishment provides opportunities for other
a behaviours to be reinforced. In reality, it often takes months – if not years – for someone to be
a apprehended, appear in court and be sentenced. Working towards more effective

a a a a a a a a a a
a rehabilitation Many of the conditions required for punishment to be effective will not exist in
a any justice system. It follows that policies and programmes that focus on rehabilitating
a offenders will have a greater chance of success in preventing crime and improving
a community safety. The origins of offender rehabilitation in Australia can be traced back to the
a early penal colonies and, in particular, to the work of Alexander Maconochie, a prison
a governor on Norfolk Island in 1840. Maconochie introduced the idea of indeterminate rather
a than fixed sentences, implemented a system of rehabilitation in which good behaviour

a counted towards prisoners’ early release, and advocated a system of aftercare and community
a resettlement. Maconochie’s ideas built on those of the great social reformers of 18th-century
a Britain, notably Quakers such as John Howard and Elizabeth Fry. They were among the first
a to try to change prisons from what they called “institutions of deep despair and cruel
a punishment” to places that were more humane and had the potential to reform prisoners’
a lives. These days, though, offender rehabilitation is often thought about in terms of
a psychological treatment. We can chart the rise of current programmes according to the broad
a traditions of psychodynamic psychotherapy, behaviour modification and behaviour therapy

a a a a a a a a
a and, more recently, the cognitive-behavioural and cognitive approaches that characterise
a a a a a a a a a
a contemporary practice. The earliest therapeutic work in the psychoanalytic tradition saw
a a a a a a a a a a

INDIAN PENAL CODE
a delinquent behaviour as the product of a failure in psychological development. It was thought

a this could be addressed through gaining insight into the causes of offending. A wide range of
a group and milieu therapies were developed for use with offenders, including group
a counselling and psychodrama. In the 1980s, more behavioural methods – such as token
a economies, contingency management programmes and “time out” – replaced psychotherapy.

a a a a a a a a a
There are good grounds to develop standardised incentive models in Australia’s prisons.
a Community-style therapeutic programmes for prisoners with substance use problems in

a a a a a a a a a
a Victoria, NSW and the ACT represent substantial advances in practice. These programmes
a take advantage of the significant therapeutic opportunities that arise by looking closely at
a prisoners’ social functioning and day-to-day interactions. They actively encourage offenders
a a a a a a a a a
a to assume responsibility not only for their own behaviour, but for that of others. However,
a rehabilitation today is almost always associated with cognitive-behavioural therapy. This

a a a a a a a a a
a targets a relatively narrow range of crime-producing (or “criminogenic”) needs, including

a a a a a a a a a a
a pro-criminal attitudes – those thoughts, values and sentiments that support criminal conduct.
a Programmes also dedicate a lot of time to trying to change personality traits, such as low self
a control, hostility, pleasure- or thrill-seeking and lack of empathy. Not everyone can be
a successfully treated. Substantial evidence now exists, though, to suggest that this type of
a approach does produce socially significant reductions in re-offending.

a a a a a a a a
SUGGESTIONS: Essential steps in making corrections policy work
The challenges lie in ensuring that the right programmes are delivered to the right people at
the right time. First, it is important that low-risk offenders have minimal contact with higher-
risk offenders. Extended contact is only likely to increase their risk of recidivism. This has
implications for prisoner case management, prison design and for the courts. Courts have the
power to divert low-risk offenders from prison and thus minimise contact with more
entrenched offenders. Related to this is the need to develop effective systems of community-
based rehabilitation, leaving prisons for the most dangerous and highest-risk offenders.
Second, concerted efforts are required to develop innovative programmes for those who
identify with Aboriginal or Torres Strait Islander cultural backgrounds. They are grossly
overrepresented across all levels of the criminal justice system. Third, staff need to be
properly selected, trained, supervised and resourced to deliver the highestquality
rehabilitation services to the most complex and challenging people. Finally, it is important to
demonstrate that programmes actually make offenders better, not worse. The types of

INDIAN PENAL CODE
evaluation that are needed to attribute positive change to programme completion are
complex, require large numbers of participants and cross-jurisdictional collaboration. A
national approach to programme evaluation is sorely needed. This is not to suggest that a a a a a
a criminal behaviour shouldn’t be punished – only that we should not rely on punishment by
a itself to change behaviour. We need to create a true system of rehabilitation that can enhance
a the corrective impact of punishment-based approaches. It also doesn’t mean that punishment
a never works. It may work reasonably well with some people – perhaps those who are future-
oriented, have good self-monitoring and regulation skills, and who can make the connection
a between their behaviour and negative consequences months later. Unfortunately, many
a a a a a a a a a
a people in prison simply aren’t like this. The challenge, then, is two-fold: to find ways to make
a punishment more effective and to tackle the causes of offending through highquality
a rehabilitation. Correctional services often get little credit for their efforts. They are widely
a criticised when things go wrong. However, their efforts to rehabilitate offenders are not only
a sensible, but also cost-efficient and practical. We need to support efforts to create a true
a system of rehabilitation. Such a system will be comprehensive, coherent and internally

a consistent in applying evidence-based practice at all levels.22

a a a a a a a
CONCLUSION:
The morality of punishment rests upon theories of deterrence, retribution, just deserts,
a rehabilitation, incapacitation, and most recently, restorative justice. These theories attempt to
a a a a a a a a a a
a justify society’s imposition of punishment on offenders and try to provide an adequate ethical
a rationale for inflicting harm. Deterrence maintains that people are deterred from crime
a because they are concerned about the possible consequences of their actions. Utilitarian
a philosophers first put forward this justification for punishment. A number of studies have
a considered the effectiveness of deterrence as a theory, but there is no clear conclusion about
a whether deterrence works. The philosophical approach to punishment is concerned with the
a “ought” of punishment, whereas the sociological approach raises questions about the use and
a severity of particular punishments and the relationship among punishment, society, and social
a change. The criminological approach focuses on the fact of imprisonment and on penal policy
a making and crime control. Some suggest that no single approach adequately provides
a justification and rationale for punishment, and that a full explanation can be gained only by
a combining these various perspectives. a a a
22
http://theconversation.com/crime-and-punishment-and-rehabilitation-a-smarter-approach-41960 retrieved
a a
a on 2-12-2020 at 15:14 pm.

a a a a

INDIAN PENAL CODE
A recent increased public awareness of alternatives to the classic prison system has created
a favourable social climate for the growth of reformative justice in the public domain. The
a growth of the victim identity and victimization of our society has created satisfactory
a conditions for public acceptance of the ideas of restorative justice, especially through mass
a media. Although there is not much opposition to the theory or ideological basis for restorative
a or transformative justice, there is some contention as to whether it will work in practice. Some
a views on this are represented by Levrant, who thinks that the acceptance of restorative justice
a is based more on “humanistic sentiments” rather than restorative justice’s effectiveness. It is

a true that the Reformative theory can work fruitfully in case of reformation of nonhabitual
a offenders. But in some cases, it does not work smoothly, because a hard-core criminal cannot
a be reformed. If we accept it then criminals will repeat the same type of offence.
That is why; instead of trying for the reformation of his criminal mind he should be punished.
Thus, it can be said that the Reformative theory will be more effective if it is intended to
supplement normal punishment, rather than replace it altogether. The reformative theory
suggests that punishment is only justifiable if it looks to the future and not to the past. It
should not be regarded “as setting an old account but rather as opening a new one”. Hardened
and professional offenders hardly respond favourably to reformative ideology because they
are incorrigible offenders with whom crime is not so much a bad habit but it is an
ineradicable instinct in them. For such offenders, deterrent punishment is perhaps the only
alternative. Even if criminals are treated as patients some of the hardened criminals are
incurably bad. If prisons are turned into comfortable place, the prison might turn into
dwelling place, at least for poor people. Even with the application of the theory crime rate is
ever increasing. Salmond says that “the application of the purely reformative theory leads to
astonishing and inadmissible results”. Reformatory theory of punishment has very limited
application. Psychologists say that behaviour which comes under the domain of habit cannot
be changed so easily. Moreover, this theory cannot be applied in every society. It is contrary
to principles of Natural Justice, the aggrieved may not be rewarded but the guilty person must
not go unpunished. It is wrong to prescribe that punishment has any one single objective.

INDIAN PENAL CODE
BIBLIOGRAPHY:
BOOKS:
1. Paranjape N.V, Criminology, Penology with Victimology, Central Law

Publications,17th Ed., 2018.
2. Malik Krishna Pal, Penology Sentencing Process & Treatment of offenders,
Allahabad Law Agency, 1st Ed., 2006.
3. Siddique Ahmed, Criminology: Problems and Perspective, Eastern Book Company,
Lucknow, 2008
4. Qadri S.M.A, Criminology & Penology, Eastern Book Company, 6th Ed., 2011.
5. Ratanlal and Dhirajlal, Indian Penal Code:
6. K. D Gaur, Indian Penal Code:
7. The Law Commission Report, Second Programme, Subject XVIII, Item(2)(a),
Malicious Damage, Paper No. 23.
8. Merriam- Webster Dictionary
9. R.N Saxena, Indian Penal Code
10. P.S.A Pillai, Criminal Law
11. K.N. Chandra Sekhar Pillai, Indian Penal Code, 1860.
E-RESOURCES:
1. www.lawschoolnotes.com
2. www.legalservicesindia.com h
3. ttps://www.legalbites.in
4. www.advocatekhoj.com

2018LLB003 I.P.C Semester 4 Research Paper

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

2018LLB003 I.P.C Semester 4 Research Paper

Uploaded by

Copyright:

Available Formats

INDIAN PENAL CODE

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

WHETHER THE SENTENCING ADJUDICATION HAS ANY ROLE TO DECIDE ON

INDIAN PENAL CODE, 1860.

NAME OF THE FACULTY:

Prof. (Dr.) BHAVANI PRASAD PANDA

NAME OF THE CANDIDATE:

B.A., LL.B. Hons.

11th DECEMBER, 2020.

IMPACT OF SENTENCING ADJUDICATION ON REHABILITATION OF A CONVICT Page 1

IMPACT OF SENTENCING ADJUDICATION ON REHABILITATION OF A CONVICT Page 2

IMPACT OF SENTENCING ADJUDICATION ON REHABILITATION OF A CONVICT Page 3

1. Jamal v. State of Uttar Pradesh

IMPACT OF SENTENCING ADJUDICATION ON REHABILITATION OF A CONVICT Page 4

The human society is a cooperative endeavour secured by coercion. By coercion we mean a

a and is inseparable. Lack of punishment creates a society which is incapable of maintaining

a and admits of no substitute.

IMPACT OF SENTENCING ADJUDICATION ON REHABILITATION OF A CONVICT Page 5

OBJECTIVE OF THE STUDY:

1. Paranjape N.V, Criminology, Penology with Victimology, Central Law

IMPACT OF SENTENCING ADJUDICATION ON REHABILITATION OF A CONVICT Page 6

IMPACT OF SENTENCING ADJUDICATION ON REHABILITATION OF A CONVICT Page 7

PUNITIVE APPROACH & CONTEMPORARY ROLE OF PUNISHMENT

I. First is traditional reaction, which can be termed as punitive approach. It regards

a criminal as bad, depraved and dangerous person for whom infliction of

a object under this approach is to inflict punishment on the offender in order to

a protect society from him.

a product of various factors operating within the society. It is of relatively recent

IMPACT OF SENTENCING ADJUDICATION ON REHABILITATION OF A CONVICT Page 8

a origin. It considers the criminal as a sick person requiring treatment so it is termed

a eliminating those conditions which are responsible for crime causation.

(1) What is inflicted is an ill, that is something unpleasant;

(2) It is sequel to some act which is disapproved by authority;

(4) Punishment is inflicted, that it is imposed by someone’s voluntary act;

PHILOSOPHERS’ OPINIONS’ ON VARIOUS PUNITIVE TECHNIQUES:

IMPACT OF SENTENCING ADJUDICATION ON REHABILITATION OF A CONVICT Page 9

(3) all persons should be considered innocent until proven guilty;

IMPACT OF HARSH SENTENCING PRINCIPLES:

a punishment must be in proportion to the gravity of the offence. Reformation and

IMPACT OF SENTENCING ADJUDICATION ON REHABILITATION OF A CONVICT Page 10

IMPACT OF SENTENCING ADJUDICATION ON REHABILITATION OF A CONVICT Page 11

a might exist in the case. a a a a

JUSTIFICATION FOR PUNITIVE REACTION: a a a

a to the members of the community.

a well as of social disorder.10

The important general principles of punishment are:

a be suited to different categories of criminals.

IMPACT OF SENTENCING ADJUDICATION ON REHABILITATION OF A CONVICT Page 12

a by some other means.11

WILL SENTENCING ADJUDICATION INFLUENCE THE LIFE OF THE

a disagreement as to the nature of the “good consequences”.

Preventive Theory – Preventive philosophy of punishment is based on the proposition “not to

The supporters of preventive philosophy recognise imprisonment as the best mode of

IMPACT OF SENTENCING ADJUDICATION ON REHABILITATION OF A CONVICT Page 13

IMPACT OF SENTENCING ADJUDICATION ON REHABILITATION OF A CONVICT Page 14

IMPACT OF SENTENCING ADJUDICATION ON REHABILITATION OF A CONVICT Page 15

a has the main component of the penal policy as social defence.17

a to “rarest of rare cases” and laid down four principles:

a be taken into consideration along with the circumstances of the crime.

(3) “Life imprisonment is the rule and death sentence is exception”.

a by the Hon’ble Supreme Court in series of cases.

a programme justifying deterrence when it is absolutely necessary and reformation as a general

IMPACT OF SENTENCING ADJUDICATION ON REHABILITATION OF A CONVICT Page 16